Contributions becoming obstacle on W.Va. SC, candidates say

John O'Brien Oct. 15, 2008, 2:00pm



CHARLESTON, W.Va. (Legal Newsline) - With the issue of recusal becoming larger on West Virginia's highest court, one Supreme Court candidate said Wednesday that she prefers not knowing who her contributors are while another said he wishes the public financed judicial campaigns.

Republican Beth Walker said she has gone out of her way to avoid discovering her donors, leaving it up to her aides to compile fundraising information as she makes her case for one of the two open spots on the Court.

Democrat Menis Ketchum, meanwhile, said the current system creates the conflict-of-interest issue currently swirling around Justice Brent Benjamin, who did not step down from cases involving a company that's CEO spent millions of dollars supporting him.

"The current system, almost by definition, creates the appearance of a conflict of interest by having lawyers and other people involved with the court being the chief source of campaign contributions to all the candidates," said Ketchum, an attorney from Huntington.

"If we do not find a way to remove money from the judicial selection process we run the risk of having a judiciary dominated by very wealthy candidates or candidates that have the appearance of being funded by one side or the other."

Plaintiffs attorneys donated more than $160,000 in large contributions (more than $250) to Ketchum, while Walker received most of her support from defense firms like her employer, Bowles Rice McDavid Graff & Love, which donated $10,000.

Lawyers in perhaps the most high-profile case on the Court's horizon, a $381 million verdict against industrial giant DuPont, have donated $15,000 to Ketchum and Democrat Margaret Workman, a former justice.

The Court recently voted to hear a group of appeals stemming from the case. DuPont's zinc-smelting plant in Spelter is alleged to have polluted the surrounding ground and water with lead, cadmium and arsenic.

Charleston's Hill, Peterson, Carper Bee and Deitzler, representing the plaintiffs, gave $5,000 to Ketchum, who finished second in May's Democratic primary. The firm also gave $5,000 to Workman, who could not be reached for comment.

Pensacola, Fla., firm Levin Papantonio Thomas Mitchell Echsner & Proctor, also representing the plaintiffs, gave $2,500 to Ketchum and $1,500 to Workman.

Charleston's Allen Guthrie McHugh and Thomas, representing DuPont, gave $1,000 to Workman, who has shown a big lead in polls.

Ketchum noted that Steptoe & Johnson, which is representing DuPont in another matter in the state, gave Walker $5,500.

"She likewise has received substantial support from other large defense firms that have represented and will represent clients before her should she be elected," Ketchum said.

"The fact is, Beth, Margaret and I have all received campaign contributions from lawyers and companies that have and will have business before the court. That's why I have been calling for consideration of public financing or other means of judicial selection that remove money from the judicial selection equation."

Ketchum made his preference for public financing known during a meeting with the Charleston Daily Mail's editorial board earlier this month.

"I didn't marry rich three years ago," Ketchum said, referring to Walker's marriage to Mike Walker, executive vice president of Walker Machinery, according to the Daily Mail report.

"I resent having to spend a half-million dollars of my children's money. I didn't marry rich. I made mine."

After the comments, Walker put out a press release requesting more civility among the candidates.

She is opposed to tax dollars being spent on judicial elections and is more on board with the idea of removing the party affiliations from the candidates.

"First off, our state's resources are limited enough. I can't imagine where to take money away from the state budget in order to find the amount of money that would be necessary to fund judicial campaigns," Walker said.

"I think a good alternative -- and I've talked about it on the campaign trail -- is for the Legislature to consider making this race nonpartisan. Really, I think if you remove the politics from the race and that would solve part of the problem."

Some states, like Florida and Tennessee, have judicial selection commissions that select a final group of candidates from the field of applicants and pass their recommendations to their state's governor, who makes the appointment.

The U.S. Supreme Court has not yet decided if it will hear the gripe of a now-bankrupt coal company that feels Benjamin should have stepped down from its case.

Blankenship spent more than $3 million promoting Benjamin in his 2004 race against former Justice Warren McGraw, brother of state Attorney General Darrell McGraw, through an organization called "And For the Sake of the Kids."

A Boone County jury later awarded $50 million to Harman Mining Co. owner Hugh Caperton in his case against Massey, a dispute over a broken coal supply contract.

However, the state Supreme Court overturned the verdict last November with a 3-2 vote. The majority reasoned that the disputed contract contained a stipulation that any disagreements be filed in a county in Virginia, where Caperton filed an additional suit against Massey.

Soon after the state Supreme Court's decision, photographs surfaced of Justice Spike Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Still, the Justices voted unanimously to rehear Caperton's case. After Maynard voluntarily recused himself from all Massey cases, Caperton demanded Benjamin also step down.

Benjamin refused, arguing that stepping down from a case involving a campaign supporter would start a negative trend.

In Maynard's absence, Benjamin became the acting chief justice for the case and appointed the replacements for Maynard and Justice Larry Starcher.

Starcher had called for an investigation into the Maynard-Blankenship friendship and had dissented sharply in the November decision. Court officials said they do not have the power to conduct such an investigation.

On Feb. 19, Starcher recused himself from the case, which ballooned to $76 million with interest, and urged Benjamin to do the same.

Starcher has publicly called Blankenship "stupid" and "a clown," leading to a lawsuit filed by Massey against the Supreme Court with the goal of forcing Starcher to disqualify himself from all Massey cases.

Benjamin remained on the bench, and Massey again won its appeal with a 3-2 vote. Benjamin also voted this year not to hear Massey's appeal of a $220 million verdict against it.

"As a judge, if there is a request for you to recuse yourself, you have to consider it. You have to consider if you can truly stay neutral, based on what you know," Walker said.

"I'm certainly not going to second-guess the judgment of a sitting justice on the court, and I don't think there is a specific dollar amount that triggers a justice's requirement to recuse himself."

From Legal Newsline: Reach John O'Brien by e-mail at

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