Public financing of W.Va. election to be weighed in legislature

John O'Brien Mar. 9, 2009, 4:29pm



CHARLESTON, W.Va. (Legal Newsline) - Jeff Kessler, chair of the West Virginia Senate Judiciary Committee, thinks public financing of Supreme Court elections may help avoid the unwanted attention the Court has received recently.

Kessler, an attorney from Moundsville, is one of six sponsors of a bill that would provide an alternative way to elect two justices in 2012. Justices Robin Davis' and Joseph Albright's 12-year terms expire that year.

Recently, the state Supreme Court has been the subject of national media attention regarding Justice Brent Benjamin's decision not to recuse himself from the $50 million case of a campaign supporter, an issue heard last week by the U.S. Supreme Court.

"I think there's a national explosion of money into judicial elections," said Kessler, first appointed to the Senate in 1997. "Without campaign finance disclosure laws in place to let the public who's paying for the ads, we're going to see more and more money poured into judicial campaigns.

"If you follow the money, you can see if the message is sincere or it is someone with an axe to grind."

While rules governing third-party activity during campaigns are still being argued over in federal court, Kessler thinks the new legislation could help restore confidence in the state's judiciary.

A pool of about $4 million collected from various sources would be used by the candidates, who would have to raise a qualifying amount on their own.

The process for a candidate who chooses to receive public financing begins with a declaration of intent and continues with fundraising, with those proceeds going into the public financing fund.

Other sources of money for the fund would come from a tax checkoff program (residents could designate up to $1,000 of their tax return to the fund) and four payments of $1 million each from the Unclaimed Property Trust Fund.

During his 2008 campaign, new Justice Menis Ketchum was a proponent of a public financing system like the one used in North Carolina.

"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," Ketchum said.

"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."

Benjamin's decision has drawn attention from all directions, including former Supreme Court justices, current state attorneys general, businesses and the American Bar Association.

Hoping to unseat Warren McGraw in 2004, Massey CEO Don Blankenship spent more than $3 million in support of Benjamin through an independent expenditure group called "And For the Sake of the Kids."

When a $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.

A Boone County jury had awarded $50 million to Harman Mining and owner Hugh Caperton in his case against Massey, which he claimed drove him out of business.

However, the state Supreme Court overturned the verdict in Nov. 2007 with a 3-2 vote, then again by the same vote in April after then-Chief Justice Spike Maynard recused himself.

Photographs had surfaced of 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.

Caperton, throughout, complained that Benjamin should have taken himself off the case. Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.

Benjamin insists he had no personal stake in the outcome and couldn't control third-party spending.

Kessler said he hopes to have the bill on the Legislature's agenda this week. Its co-sponsors are Sens. John Unger (D-Berkeley), Dan Foster (D-Kanawha), Herb Snyder (D-Jefferson), Brooks McCabe (D-Kanawha) and Randy White (D-Webster).

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