When the state Supreme Court hears arguments next week from attorneys for Justice Brent Benjamin and Bill Wooton, asking that they uphold the awarding of public campaign financing for both candidates for the May Supreme Court election, a key issue will be a deadline for certification that both candidates missed.
The State Elections Commission in February decided the deadlines, which exist in legislative rule but not in the law creating the Supreme Court public financing program, were arbitrary and unreasonable.
In fact, earlier in the hearings, the SEC reached the same conclusion for candidate Beth Walker, who had missed deadlines in the rules to file challenges of public financing for Wooton, and the bulk of challenges against Benjamin.
“The first thing we dealt with was the fact the objections of the Walker campaign were one day late,” SEC chairman Gary Collias said Wednesday.
He said commissioners concluded the filing deadline of two business days after the close of the candidate filing period, both for public financing certification and for challenges, was unreasonable, and that they should rely on the statute over the interpretive rule.
“What we did was attempting to comply with the spirit and intent and substance of the law, and the complaint is about hyper-technical things,” Collias said.
During the Feb. 4 SEC meeting, Collias raised the issue about whether the Walker campaign had missed the Feb. 2 deadline for filing challenges to the applications to certify public campaign financing.
“Am I not reading this right, but aren’t all these challenges untimely under our regulation?” Collias asked, according to the meeting transcript.
Tim Leach, assistant counsel to Secretary of State Natalie Tennant, pointed out that the deadlines are in the rule, but not in the law.
“It would be my professional opinion and recommendation that you go with the statute, as opposed to the regulation, and allow this analysis of the complaint or the challenges,” Leach said.
Commissioner Vince Cardi responded, “Are you saying if the statute doesn’t have a time limitation, then the regulations should not be able to add a time limitation?”
“That’s one of the things I’m saying,” Leach responded.
A day later, when the issue of whether the Wooton campaign had missed the deadline for filing for certification, Collias asked, “Isn’t this the same issue that we talked about when the regulations provided a time limit but the statute didn’t, and we were basically giving people the benefit of the doubt and liberally interpreting the regulation because it conflicted with the statute?”
Leach responded, “Yes, it’s the same argument I made in regard to the Walker campaign being denied the right to file challenges because they missed the two-day deadline, but there is no two-day deadline for the filing of challenges or the filing for requests of certification in the statute.”
However, in reversing the SEC’s action certifying the Benjamin campaign, Kanawha Circuit Judge Tod Kaufman concluded in a March 4 ruling that the commission’s decision was “clearly erroneous.”
Kaufman ruled that legislative rules have the force of law and must be enforced as written, citing a 1995 state Supreme Court decision which said, “A properly promulgated legislative rule can be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious.”
Collias said he’s concerned that if public financing for the Benjamin and Wooton campaigns are denied, it could have a chilling effect on future candidates considering the public financing option.
Joe Reidy, spokesman for the Walker campaign, did not respond to a request for comment Wednesday.
The Legislature passed public financing for Supreme Court candidates in 2010 as a pilot project, then made the program permanent in 2013, with the intent of avoiding the perception of judicial bias by alleviating the need for candidates to raise hundreds of thousands of dollars from lawyers and from individuals who might have cases pending before the court.
Ironically, the original law was inspired, in part, by a $3 million independent expenditure campaign funded by former Massey Energy executive Don Blankenship attacking Benjamin’s opponent in the 2004 Supreme Court race.
The four sitting justices recused themselves from hearing the cases, and Chief Justice Menis Ketchum appointed Senior Status Judge Thomas Keadle to serve as chief justice.
Keadle, in turn, appointed circuit judges John Hatcher of Fayette County, James Mazzone of Ohio County, Thomas Evans III of Jackson County and retired judge James Holliday of Putnam County, who is a senior status judge, to hear the cases.