Candidates for West Virginia Supreme Court look towards future of state’s judiciary
CHARLESTON — To some observers, the current state of the West Virginia’s highest court looks turbulent.
Two justices have resigned. Four justices have been impeached, three of whom are awaiting trial in the state Senate. Two justices have been indicted by the federal government, with one pleading guilty and the other facing sentencing on 11 counts.
With the turbulence, it can be easy to forget that voters have an opportunity on Nov. 6 to set a new direction for the court by electing two new justices to fill vacancies on the bench. These vacancies are listed on the ballot as division 1 and division 2
In division 1, voters will decide who will finish the term of Menis Ketchum, who resigned July 27 as members of the House of Delegates were in the middle of impeachment investigations of all the justices. Ketchum pleaded guilty to one count of wire fraud in federal court in August and will be sentenced in December.
His term is up in 2020.
In division 2, voters will choose the successor for Robin Davis, who resigned Aug. 14, the day after the House of Delegates adopted 11 articles impeachment against Davis, Chief Justice Margaret Workman, Justice Allen Loughry, and Beth Walker. Davis is fighting her impeachment in federal court, alleging violations of her civil rights, as well as gender and political discrimination.
Her term is up in 2024.
To try to help give voters some deeper insight into the stances of the candidates, the West Virginia Bar Association held two forums at the West Virginia Culture Center in Charleston between Oct. 15 and Oct. 18 for division 1 and division 2 candidates.
Nine out of the 10 candidates for division 1 were on hand for the first forum held Oct. 15; newly-appointed Supreme Court Justice Tim Armstead, Kanawha County Circuit Judge Joanna Tabit, Eastern Panhandle Circuit Judge Chris Wilkes, former Kanawha County lawmaker Mark Hunt, former assistant state attorney general Harry Bruner Jr., Mingo County attorney Robert Carlton, Cabell County attorney Ronald Hatfield, Clay County attorney Hiram Lewis, and Kanawha County attorney Jeff Woods. Only Cabell County attorney D.C. Offutt, Jr. was unable to attend.
The Oct. 15 forum was moderated by Gregory Bowman, dean of the West Virginia University College of Law, and Jeff Jenkins, news director for West Virginia MetroNews. The first question went to Woods, asking for his vision for the state’s judicial system.
“My vision for our judicial system is that we get back to serving Lady Justice,” Woods said.
Woods decried the laziness of the Supreme Court, saying the high court only averages 100 written opinions per year, while the circuit courts are overworked.
“That tells me there is a wrongful or inappropriate allocation of resources and personnel at the court,” Woods said. “We need to take those resources and push them back down to the circuit court level.”
Tabit, who sits on one of the busiest benches in the state, was asked what the Supreme Court could do to help circuit courts regarding child abuse and neglect cases. Tabit said more than 50 percent of the docket for circuit courts involve abuse and neglect cases, with the majority of those cases involving drug addiction. She called for more resources for existing court programs that are showing results.
“What the court needs to do really is what it is doing as it relates to juvenile drug courts and treatment courts, like adult drug court,” Tabit said. “This is a health crisis we’re experiencing, and incarceration is not always the answer.”
Armstead, the former Republican speaker of the House of Delegates, was asked about a time in his life when he experienced an ethical dilemma and how he dealt with that. When Gov. Jim Justice called a special session to look into impeachment of the Supreme Court justices, Armstead recused himself as president and turned the gavel over to House Speaker Pro Tempore John Overington, R-Berkeley. However, he was still required to vote for the articles of impeachment as a delegate.
“I think it’s incredibly important when we look at what we’ve been through over the past year that you have people on the court who have already shown that when they’re tested and tried in difficult situations that they do have integrity and they do have honesty,” Armstead said. “They’re going to do the right thing, even when it’s not the popular thing.”
When asked a similar question regarding when a justice should recuse themselves from a case, Wilkes said each judge needs to evaluate for themselves if they can impartially hear the case.
“When a judge decided they cannot impartially rule on a case they should automatically recuse themselves,” said Wilkes, who has heard cases in Berkeley, Jefferson and Morgan counties since 1993. “You have to realize as a judge you have an overriding obligation to do your work, so you have to take the tough case and decide it. You have to work the dilemma out as to whether or not you feel you can fully, fairly, and impartially apply the law to the facts.”
With so many candidates on the ballot, and with normal Supreme Court elections taking place in the spring of 2020, Hunt was asked if future Supreme Court elections should be done by runoff.
“I wouldn’t see any problem in a perfect world of having a primary with this nonpartisan election,” Hunt said. “If a person didn’t win by at least 5 percent, have a runoff in the general election.”
Carlton, a bankruptcy and personal injury attorney, was asked how he would handle cases that involved areas of the law in which he didn’t have much experience.
“Over the last 35 years, I’ve run into just about anything that you can,” Carlton said. “The litigants will be briefing those cases and bring the Supreme Court justices up to snuff in what’s going on in that area of the law, and then the Supreme Court justices will be reviewing the law themselves and deciding what needs to be done.”
The Supreme Court not only manages itself, but it administrates the state’s entire judicial system. Lewis, a former treasurer for the state Republican Party, was asked how he would manage this large bureaucracy.
“I believe I’m uniquely situated in this instance because I have a background in finance and accounting,” Lewis said. “I believe that the financial aspects of the office have been ignored. We’ve seen what that has done to our Supreme Court.”
An issue that has come up over the years from special interest groups is the need for an intermediate court of appeals. Hatfield, a managing partner for Litchfield Cavo in Barboursville, said an intermediate court to handle appeals should only be created if the taxpayers want it.
“I don’t believe it is necessary as long as the voters of West Virginia elect Supreme Court justices who have integrity, discipline, dedication to the job, and accountability to each other and the citizens of West Virginia,” Hatfield said.
When asked if citizens have adequate access to legal services, Bruner said that adding another layer in the form of an intermediate court would make it harder for low-income residents to use the court system.
“What we want is justice to flow down from the court system,” Bruner said. “We have the ability to be the best court in the country if we just keep it simple.”
On Oct. 18, nine out of the 10 candidates for Supreme Court division 2 attended the second forum including newly-appointed Justice Evan Jenkins, Boone County Circuit Judge William Thompson, Kanawha County Family Court Judge Jim Douglas, former Senate President Jeff Kessler, Kanawha County attorneys Dennise Smith and William Schwartz, Greenbrier County attorney Robert Frank, Putnam County attorney Brenden Long, and Ohio County attorney Marty Sheehan. Ohio County attorney Jim O’Brien was unable to attend.
Bowman and Jenkins returned to moderate the forum. Bowman gave the first question to Douglas, asking if the courts in the state handle issues involving race, gender, and socio-economic circumstances fairly.
“No, I don’t think so,” Douglas said. “I don’t think the Supreme Court is responsive to that.”
Jenkins asked Smith about how she would restore the public’s confidence in the state’s judicial system. A recent MetroNews poll showed only 4 percent of respondents had confidence in the courts.
“A lot of people think the court is a partisan body, and a lot of people doubt that they can have a fair and impartial judge,” Smith said. “We have to do a lot of outreach to the people to explain the Judicial Rules of Conduct. We think we need to revisit the Rules of Judicial Conduct with regard to recusal and I think we need to revisit them in regard to campaign activities to determine if there can be any strengthening of those rules.”
Jenkins, who spent many years in the Legislature and the last four years as a congressman, was asked how he would approach issues of conflict between the legislative and judicial branches.
“It is important that I’m not in the capacity as an advocate,” Jenkins said. “As a jurist, I absolutely understand the importance of that separation and to make sure that I’m looking at every piece of legislation, any case, or any matter that comes before me in an absolutely impartial way, making sure everyone has equal access and making sure we interpret the law appropriately as directed by our constitution.”
Frank, who was co-lead counsel for the wrongful death lawsuit of the Notorious B.I.G., was asked whether the Supreme Court should hear more oral arguments instead of releasing so many memoranda decisions that don’t involve face-to-face hearings before the court. Frank said there were only 41 days of oral arguments so far in 2018.
“The court should absolutely accept more cases for oral argument,” Frank said. “If you were to tell a circuit court judge or a family court judge they would only have 41 days dealing with arguments in front of them, they’d simply laugh at you, because that is not realistic.”
The topic of judicial temperament came up in light of recent U.S. Supreme Court nomination hearings. When asked about his temperament, Kessler said everyone would be treated with dignity and respect if he is elected.
“As my mother said, ‘no one looks down their nose at you if you don’t look down your nose at anyone,'” Kessler said. “You treat everyone with equality, dignity, respect and fairness. I treat all clients like that. That’s why they keep coming back.”
The state Supreme Court has come under scrutiny for its expenditures involving $3.5 million in renovations to offices and the spending down of surplus funds. Thompson, who is known for his efforts to fight opioid abuse in Southern West Virginia, said the Supreme Court needs to do a better job of funding drug courts and other initiatives.
“The state is facing a lot of critical issues. I think one of the most critical issues the state is facing right now is the opioid and drug epidemic,” Thompson said. “The opioid epidemic is not only taking away children’s future, it’s taking away our state’s future as well. That, I think, should be our highest priority.”
Bowman asked Long, a former Kanawha County assistant prosecuting attorney, for a time when he represented a case that went against his personal feelings. Long pointed to his time representing clients accused of criminal acts.
“You may not like the crime that was committed, but you still have to go forward and do your best for them as a client,” Long said. “I think those are your toughest cases as an attorney as far as criminal law.”
Schwartz was also asked about if there was a need for an intermediate court of appeals, which many pro-business groups and Republican lawmakers say is needed.
“As has just been pointed out, the court could probably hear more cases as it is right now,” Schwartz said. “I believe an intermediate court does one thing and one thing only: it delays justice. I don’t think we need it, I don’t think we can afford it, and it hurts people.”
Sheehan, when asked about what he is most proud of during his lengthy legal career, pointed to a simple zoning issue where he was able to bring all parties together to find a solution that worked for all.
“Everybody went away happy, but that’s the kind of solution where everybody wins,” Sheehan said. “It just takes a little more creativity and a little more understanding of what all the issues are in order to get that kind of solution. The law should be used to get good outcomes and successful solutions to problems.”