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Showdown set over public funds in WV Supreme Court race

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West Virginia Supreme Court Justice Brent Benjamin

Are timelines in the West Virginia Supreme Court public campaign financing rules guidelines or hard and fast deadlines?

The answer to that question could determine the fate of two candidates’ campaigns for the nonpartisan election in May.

The Supreme Court will hear arguments today that Justice Brent Benjamin and Beckley lawyer Bill Wooton should retain close to $500,000 each in public campaign financing, saying the public interest in limiting the influence of outside money on judicial elections requires a liberal interpretation of the regulation.

A key issue is whether the candidates missed a deadline in the legislative rule to file for certification of their public financing with the State Election Commission — Wooton by one day, Benjamin by nine minutes.

Supreme Court candidate Beth Walker, who is challenging both candidates’ public campaign financing, contends that there is a 30-year precedent in Supreme Court rulings to strictly enforce campaign deadlines, arguing that the legislation does not give the SEC “any discretion in carrying out its duties.”

The commission, in February, ruled that the two-day filing deadline, which exists in the legislative rule but not in the law creating the Supreme Court public financing program, is arbitrary and unreasonable. Commissioners voted unanimously to certify Benjamin and Wooton for public financing.

Walker challenged Benjamin’s certification in Kanawha Circuit Court, and Judge Tod Kaufman ruled that the SEC was clearly erroneous in certifying his campaign funding, stating, “Strict adherence to deadlines related to political campaigning is paramount.”

That sent Benjamin’s and Wooton’s cases to the Supreme Court, which will hear arguments this morning.

In her brief, Walker argues that providing funding to the Benjamin and Wooton campaigns would be a “direct infringement” on her right of free speech.

“The SEC will force Walker, and presumably the other non-participating candidates, to spend or raise more money to exercise their own rights of free speech,” Walker states.

In their briefs, Benjamin and Wooton countered that public financing of their campaigns in no way restricts Walker’s ability to finance and promote her candidacy.

“That the certification of Mr. Wooton for funding might lessen Ms. Walker’s prospects for winning the election is simply not a legally recognizable injury,” Wooton’s brief states.

Likewise, Benjamin states, “The mere fact that Benjamin’s campaign will make it more difficult for Walker to compete is not a Constitutional violation. Rather, it is the very nature of a contested election.”

Conversely, Benjamin and Wooton argue that de-certifying their campaign financing about six weeks before the May election would effectively disqualify them as candidates over what Benjamin called a “hyper-technical ‘gotcha’ objection.”

“The purpose of the Act is … to encourage and facilitate — not prevent — candidate participation in public campaign financing,” Benjamin states in his brief. “The circuit court’s order would undercut these purposes, creating a minefield of procedural barriers to certification, and ensuring that one minor mistake, even if promptly corrected, would require automatic disqualification.”

Both candidates noted that that defies the intent of the law, which is to limit “the detrimental effects of increasingly large amounts of money being raised and spent to influence the outcome of elections, to protect the impartiality and integrity of the judiciary, and strengthen public confidence in the judiciary.”

Additionally, briefs from Wooton and from the SEC note that the Walker campaign itself missed the deadline, in the public campaign financing rules, to file challenges of candidate certifications.

“If the rule for this proceeding is to be ‘late is late,’ then Walker’s ‘late’ challenges were, frankly, late and cannot be entertained, and the SEC has no discretion or recourse to permit a late challenge,” the SEC states, arguing that, in fact, the legislation gives the SEC discretion to interpret the law.

Before acting on Benjamin’s and Wooton’s applications for certification, the SEC, at its Feb. 4 meeting, voted to consider Walker’s challenges, even though they were filed a day late. That was based on explanations by assistant counsel Tim Leach that the deadline for filing challenges, like the deadline for filing for certification, exists in the legislative rule but not in the law itself.

“The Act is reform legislation designed to allow public financing of judicial elections to curb the harmful effects of large private donations, and to protect the impartiality and integrity of the judiciary, and as a result, should be liberally construed to that end,” the SEC brief states.

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 Senior Status Judge James Holliday of Putnam County, the hear the cases.

Reach Phil Kabler at, 304-348-1220, or follow @PhilKabler on Twitter.

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