West Virginia will hold its first nonpartisan judicial elections in May, highlighted by a Supreme Court race among five candidates with partisan pasts.
Following a change to state law in 2014, all judicial elections are now nonpartisan; candidates will run without party affiliations and no parties will be listed on ballots.
But, at least for this Supreme Court race, that’s kind of like a basketball game between players wearing street clothes instead of uniforms. There’s still two teams, it’s just a little tougher to figure out who’s who.
All five Supreme Court candidates have run for public office before, and all five did so as a member of a political party.
The seat is currently held by Justice Brent Benjamin, who was elected as a Republican in 2004.
Challengers are Wayne King, who has been a Democratic prosecutor in Clay County; Darrell McGraw, a former Democratic Supreme Court justice and state attorney general; Beth Walker, who ran unsuccessfully for Supreme Court as a Republican in 2008, and Bill Wooton, a longtime Democratic state legislator.
Despite Benjamin’s status as a Republican incumbent, Walker has emerged as the favorite of business and the Republican establishment.
She has endorsements from the state Chamber of Commerce and the Business and Industry Council, both of which spent hundreds of thousands of dollars to get Republicans elected in 2014. She also was endorsed by the state’s preeminent Republican, Sen. Shelley Moore Capito.
The Democratic establishment, and traditionally Democratic groups like trial lawyers, have not similarly lined up behind a candidate.
Because the elections are nonpartisan, there will be no primary election and the May elections will function as a general election — the only chance for voters to choose a justice.
The candidates discussed their judicial philosophies, public financing of Supreme Court elections, the need for an intermediate court of appeals and West Virginia’s judicial reputation during a recent meeting with Gazette-Mail editors.
Judicial candidates are generally reluctant to discuss issues that may come before a court, not wanting to prejudice themselves or weigh in until they see they specific facts of a case. But here, in their own words, are how the candidates may go about weighing the factors of a case before them and why they want to be on the Supreme Court.
n Benjamin: “A judge should not call a ball or a strike before the pitch is even made ... We need to defer to the Legislature on policy matters to the extent possible.”
n King: “Because of the 43 or so years of practicing law in the state of West Virginia, representing a broad cross section of plaintiffs, defendants, prosecuting cases; I just have a unique experience that I believe I can bring some common sense and good judgment to the court.”
n McGraw: “The court needs more illumination ... The law is an entity that’s designed to advance the quality of civilization with good people working through proper processes to do so, in ways that do not damage, hurt or diminish your fellow citizens.”
n Walker: “I think I can make a difference in the future of West Virginia as a justice on the Supreme Court, adding, I think to the fairness, impartiality and just confidence in our judicial system.”
n Wooton: “The other branches of government are expressly political, the Supreme Court and in fact the entire judiciary should not be political ... I get a great deal of satisfaction from helping people deal with complex problems of law. I think the experience I have and my public service ideally qualifies me for the Supreme Court.”
Another appeals court?
In August, Republican legislative leadership identified establishing an intermediate court of appeals as “at the top of our list” of legislative priorities. Saddled with an underwater state budget, and choosing to focus on other issues, the legislation never got off the ground this year. Business and tort-reform groups have long advocated for an intermediate court, which would give defendants another opportunity to have lawsuits thrown out.
King, McGraw and Wooton (all the former Democrats) said the state does not need an intermediate appellate court, while Benjamin said we do not need one right now and Walker took no position.
n Benjamin: “The Legislature this term decided not to go forward because it was balancing a lot of factors and I agree with that decision ... There are costs to a middle level court, whether it’s the added level of government, to costs to litigants in extra costs, extra attorney fees. The benefit is an extra set of eyes to look at things.”
n King: “I don’t agree that there should be. I think that the Supreme Court handles all of its cases in a timely way and I would strive to do the very same.”
n McGraw: “No, the burden is not so great that an intermediate court should be created and the intermediate court would, in a way, be an obstacle to the pursuit of justice because it’s another barrier between the court of general jurisdiction and the final appeals court.”
n Walker: “I trust the Legislature to make that decision. We’re in a pretty tough budgetary time.”
n Wooton: “Every case now gets reviewed. I believe that meets the needs of the people of West Virginia. Certainly, when you balance those needs and the budgetary situation we now have, against the costs of an appellate court, this is not the time to have such a court.”
In 2010, the Legislature established a pilot project to provide public funding to Supreme Court candidates. It made the program permanent in 2013. Wooton and Benjamin have applied for public funding this year, but Walker has sued to stop them from receiving the money, challenging that Benjamin and Wooton missed filing deadlines. That case is now pending before a Supreme Court filled with replacement judges.
Under the program, qualifying candidates can receive up to $525,000 in public funds for the election. By way of comparison, Benjamin raised about $800,000 in his 2004 campaign and Walker raised about $500,000 in 2008.
The public funding program is, in part, a reaction to Benjamin’s election in 2004 when then-Massey Energy CEO Don Blankenship spent millions of dollars attacking Benjamin’s opponent, then-Justice Warren McGraw (Darrell’s brother).
Benjamin is now quick to point out that the people who conducted Blankenship’s spending now support Walker. McGraw is quick to point out that public financing for candidates does little to stem the flow of outside money from groups like Blankenship’s.
“The detrimental effects of spending large amounts by candidates and independent parties are especially problematic in judicial elections because impartiality is uniquely important to the integrity and credibility of courts,” the Legislature stated in 2010.
Benjamin and Wooton support public funding. McGraw and King oppose. Walker wouldn’t do it personally, but has no problem with the program.
n Benjamin: “I’ve always been a proponent of it ... To the extent that there are concerns about undue influences among special interests, out-of-state concerns or even people that are well-entrenched in the Capitol, the public financing system allays that.”
n King: “I’m adamantly opposed to the public financing ... Public financing for one set of government versus all the others, I think, is totally wrong.”
n McGraw: “I wonder if it’s more important to finance a Supreme Court campaign out of public funds than it is to make proper provisions for hungry children that need it, or for proper schools for the children to go to ... A million here and a million there seems to start to add up to something.”
n Walker: “I can’t, frankly, in good conscience, run a campaign on state funds ... I don’t have any objection. The Legislature established the process. I don’t think it’s a good choice right now in the midst of budgetary challenges.”
n Wooton: “Public financing eliminates the perception that the court is not fair. With conventional financing, there is the possibility that the confidence of the public in the integrity of the judicial system is undermined.”
For years, a corporate-funded group that pushes for business-friendly legal reform has labeled the state Supreme Court a “judicial hellhole.”
The group, the American Tort Reform Association, freely admits that its rankings and its list have no basis in social science and are not methodologically sound.
“It is not a scientific study, it is not based on statistical number crunching, it is based on what we hear from, largely defendants, and others in these various jurisdictions around the country,” the group’s spokesman said in December.
Still, the list carries great weight with Republican legislative leadership, who held a news conference last year to celebrate West Virginia’s removal from the list.
King, McGraw and Wooton all derided the list as political. Benjamin said the group has an agenda, but we should still listen to what they have to say. Walker declined to make a judgment on the validity of the list, but said we should make changes nonetheless because there’s a perception the list is accurate.
n Benjamin: “There are groups out there who have agendas, because that’s why they’re formed and, yes, we have to be concerned about scorecard justice ... But we also have to have our ears open as elected officials to hear what can make the whole system better for everybody.”
n King: “For people to say that a jury trial in West Virginia leads to a judicial hellhole was a sham perpetrated by some entity to shame the Legislature or other people into saying the judiciary wasn’t fair ... The judicial hellhole term was never, ever deserved.”
n McGraw: “The business of a so-called judicial hellhole is a political term that is described to prejudice the community against the administration of justice.”
n Walker: “It’s not for me to determine whether their perception about the court is accurate or not ... Whether it’s a political term or however else you might categorize it, it is a term that has been applied in the past to the West Virginia judiciary and so I take it as a perception that we have to be realistic about and try to move forward and change.”
n Wooton: “The judicial hellhole was a political term. It really paints with a broad brush our entire judicial system, and the complaints that people using that term are seeking to address don’t come from the judicial system, they come from the Legislature ... Those people have a political agenda.”