W.Va. SC candidate's recusal plan draws criticism

Chris Dickerson Mar. 30, 2012, 6:21am


CHARLESTON, W.Va. (Legal Newsline) - One West Virginia Supreme Court candidate's plan to revise the rules for justice recusal already seems to have its critics on the Court.

Tish Chafin unveiled her Balanced Court Initiative on Wednesday across the state.

Under current state Supreme Court recusal rules, the decision on whether to recuse is left solely the challenged justice.

"My initiative proposes two changes to our state's current recusal rule; the review of recusal motions by impartial judges and publicizing written decisions for recusal motions," Chafin said.

Under Chafin's proposal, in cases where a justice declines to recuse, the rules would provide for an expedited de novo review of the motion by members of the Court. Chafin proposes allowing a senior judge or justice to be appointed to the court, to ensure quorum, to hear the recusal motion.

She proposes that, in addition to review by the full court, written decisions should be required in all recusal motions and those decisions should be published and made publically available.

"By adopting my Balanced Court Initiative, the West Virginia Supreme Court would not only help increase public confidence in the judiciary, but would also emerge as a national leader in reforms that protect the integrity of our court system," Chafin said.
Chafin cited the 2009 United States Supreme Court ruling that Justice Brent Benjamin's failure to recuse himself from the Caperton vs. Massey case created "a serious, objective risk of actual bias."

"Since it was a West Virginia case that brought national attention to the recusal issue, I believe that our State Supreme Court should adopt recusal reforms to ensure that its fairness and impartiality are always above reproach," Chafin said.

"It's not an everyday occurrence, and it will not add any additional burden to the court. I think in this environment, people feel the courts are not fair and impartial. We need to change that perception."

Current Justice Robin Jean Davis, who also is running for re-election to one of two seats this year, and current Chief Justice Menis Ketchum both already have spoken out against Chafin's proposal.

On Thursday, Chafin said she thinks the current recusal rule needs to be reformed. Now, Justices decide for themselves if they want to step down from hearing a case.

"I think all West Virginia citizens would benefit from this change," she said. "And the reason is the Caperton vs. Massey decision from 2009. The United States Supreme Court invited courts to look at recusal rules. The American Bar Association, legal scholars and judges from across the country have been looking at these rules to increase the public trust in courts.

"Everybody is entitled to a fair and balanced court."

Michigan's Supreme Court changed its recusal rules shortly after the Caperton vs. Massey ruling from the U.S. Supreme Court. Published reports show it caused divide among the Justices on the court.

"Anytime you look at a rule change, people are going to express an opinion," Chafin said. "I don't see a change causing any division or divide on the West Virginia Supreme Court. I'd like to think that every candidate and sitting Justice want to do what's right.

"The reform I'm proposing adds transparency and gives litigants that next level of review. We should be able to deal with these matters in the state instead of having the cases go to the United States Supreme Court."

Last month during a forum on MetroNews involving six of the eight Supreme Court candidates, Chafin mentioned the idea.

"It's a perception we need to change," Chafin said then. "I think changing judge recusal rules would be able to fix the perception."

Davis disagreed. She noted that West Virginia follows the same recusal rules as the United States Supreme Court. She also said such an idea would create a "slippery slope."

"We follow the same rules as the U.S. Supreme Court," Davis said at the forum. "Leave it up the judge because I think West Virginia judges are honest judges and they can make that decision fairly."

Chafin commented on that Thursday as well.

"Some might say we do things the same way as the United States Supreme Court and the 4th Circuit, but there also has been a movement to have review on the U.S. Supreme Court," she said. "The only comment I would make about that is that saying we do it the same way as the United States Supreme Court and the 4th Circuit should not be the end of the discussion. The national media, including the New York Times, is critical of this method.

"Two United State Supreme Court Justices have been criticized for hearing the current health care issue because they had some risk of bias because of ties to the issue. Justice (Clarence) Thomas because of his wife's work on the issue, and Justice (Elena) Kagan herself.

"I think this matter of recusal reform is a very relevant issue. West Virginians are concerned with. It needs to be address."

Late Wednesday, a spokeswoman for Davis' campaign said the Justice was returning from the Eastern Panhandle, where the court met Tuesday, and had not seen the campaign literature.

"She notes, however, that one of the Chief Justice's major initiatives -- which he undertook Jan. 1 -- is a comprehensive revision of the recusal rule," Lisa M. Duvall said.

And this isn't the first time a Chafin has brought up such a proposal.

In 1996, Chafin's husband -- state Sen. Truman Chafin, D-Mingo -- introduced a bill to have the other Justices review and vote on motions to recuse. It passed the Legislature, but was vetoed by then Gov. Gaston Caperton.

"The governor vetoed the bill then," Tish Chafin said Thursday. "I think the question was one of constitutionality -- can a legislative branch of government tell a court what to do.

"I'm proposing the Supreme Court reform its own rules. One of the reasons the governor vetoed it at the time was the Supreme Court said, 'We're going to take care of this ourselves.'

"Now, it's 2012. And it's three years since the Caperton vs. Massey ruling. And there has been no substantive change. I'm not condemning any past courts. I'm simply saying this is something we need to do to make our court system better. We need to promote transparency and public confidence. I'm not trying to be critical. This is something we need to do."

In 1999, Truman Chafin introduced the measure again. It didn't make it out of committee.

Rick Staton, who then was chairman of the House Judiciary Committee, said the legislation might have been in violation of the state Constitution.

Truman Chafin said then that he introduced the bill because Justice Margaret Workman had refused to disqualify herself from Chafin's divorce proceedings. He said Workman's former assistant was a friend of his ex-wife and tried to influence Workman, according to an Associated Press article.

In a story in Thursday's edition of the Charleston Daily Mail, Ketchum called Tish Chafin's proposal "silly" and "crazy." He also said he is leaning toward changing the court's rules to allow an independent person or group to remove justices from cases when they have a conflict of interest but won't step away.

"That would be silly," Ketchum told the Daily Mail of Chafin's plan. "You all work together every day. It's kind of like asking your wife to rule on your recusal motion. If you're going to do it -- that's crazy -- if you're going to do it, have an independent person do it.

"Of course, she's never been on a court, so she'd never know."

Ketchum said he's been working on the plan since before he became Chief Justice on Jan. 1.

"It's just silly to think that five Justices who work together every day ought to be ruling against one another or for one another," he said Thursday. "And more importantly, her proposal could just shut down the Court because, under her rule, if a motion to recuse is filed, the judge has to write an opinion. Then, they have to have a full hearing. And those judges have to write a full opinion.

"Lawyers could shut the system down so the judges are just deciding motions to recuse among themselves. And then, lawyers game the system. If they see a judge's past opinions that indicate the judge may vote against them, then they'll game the system until they get a judge who they think favors them."

Ketchum cited work Truman Chafin as an example.

"Several years ago, Truman successfully sought to have Judge (Michael) Thornsbury disqualified from from all of his cases," Ketchum said. "So, Judge Thornsbury was recused from every Chafin case in Mingo County for years.

"When I became Chief Justice this year, I got a motion to recuse based on the 2004 letter and order. I researched it and said, 'This is crazy for the Supreme court to pay a judge extra money to go to Mingo County just on Chafin's cases.'

"So, I entered an order ending it. And now, Judge Thornsbury sits on Chafin's cases unless they want to file something to show that he has a bias or prejudice and should be recused.

"Judges are elected by the people of their county, and the Supreme Court should not just be routinely paying a substitute judge for a particular lawyer in a county."

Ketchum said he thinks judges recuse themselves too often already.

"In our court, our judges routinely voluntarily recuse themselves without a lawyer's motion asking they be recused," he said. "The other Supreme Court judges are recusing themselves if there is any hint of the appearance of impropriety.

"But we're elected by the people to make decisions, and we shouldn't voluntarily recuse ourselves unless there is a very good reason. The electorate did not vote to have substitute judges construe the Constitution and statutes of our state."

Ketchum said he and the other Justices have been "very deliberately and carefully" looking at recusal rules around the country.

"We were taking our time and being thoughtful, just like we did on the new appellate rules," he said. "And I hate it that somebody now wants to make our deliberative process a political football.

Chafin responded to Ketchum's comments.

"Well, first, that language is a little unfortunate," she said Thursday. "I think there are better adjectives to use than silly and crazy. I respect that he might disagree with some parts of my proposal. But we can agree to disagree and have an intelligent discussion without throwing out adjectives like that.

"My proposed plan differs from Ketchum's in that he apparently plans to have a panel separate and apart from the Supreme Court Justices. I think it's important to keep it within the Supreme Court because the people are electing the Justices, and they're electing us to make decision. We can review it and write a opinion on it. A second panel shouldn't have that authority."

Still, Chafin said she is glad to know that Ketchum and the rest of the current state Supreme Court already are looking at the issue.

"This is an important issue," she said. "And I think it's completely appropriate to be talking about it before the election of two Justices who will serve 12-year terms. In fact, I challenge the other candidates to state their positions on the issue.

"I'm so happy we're having this discussion. Supreme Court candidates can't talk about a lot of issues on the campaign trail because we might have to recuse ourselves because of comments later. But this is an administrative issue that's important for the people of West Virginia."

To read Chafin's full initiative, visit www.chafin2012.com.

Chafin is one of six Democratic candidates seeking two spots in this spring's primary. Joining her are current Justice Davis, circuit judges J.D. Beane and Jim Rowe, current Supreme Court law clerk Louis Palmer and New Martinsville attorney H. John "Buck" Rogers.

Circuit Judge John Yoder and current state Supreme Court law clerk Allen Loughry are the Republicans running.

The primary election is May 8, and the general election is Nov. 6.

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