State Bar might study issue; justice wants review quashed

By Chris Wetterich
Staff writer

The president of the West Virginia State Bar wants to study whether state judges should continue to be elected, but a state Supreme Court justice wants him to “deep-six” the review in the midst of this year’s Supreme Court election.

On Friday, State Bar President Charles M. Love III will urge the organization’s board of governors to appoint a committee to study the issue.

Love favors changing West Virginia law so judges are not picked in an election where candidates’ party affiliations are listed on the ballot. Judges could be appointed, or elected without party labels.

But state Supreme Court Justice Joseph Albright thinks the committee is a bad idea.

“[T]his is not the right time for a ‘judicial selection commission,’” Albright wrote in a letter obtained by the Gazette. “At least postpone it; better yet, deep-six it. If you proceed now, you are embarking on an ill-advised course at a totally inappropriate time. Please reconsider.”

In his July 15 letter to Love, the State Bar’s board of governors and the four other state Supreme Court justices, Albright says that the State Bar should pay more attention to how judicial races are run in West Virginia.

“The failure of the State Bar to vigorously, clearly and firmly condemn the excesses in the recent primary campaign ... suggests to me that it is time for the State Bar to focus less on the judicial selection process and more on how it has been abused by out-of-state and special interests bent on changing our fundamental West Virginia law,” wrote Albright.

The idea of appointing a study committee has nothing to do with the May Democratic primary campaign between incumbent Justice Warren McGraw and Greenbrier Circuit Judge Jim Rowe, Love said.

“This is not a new matter,” Love said. “We’ve been considering it for 20 years. We looked at this issue 20 years ago and made some recommendations to the governor. We’re simply looking at it again.”

But in the State Bar’s newsletter, The West Virginia Lawyer, Love wrote that “[the primary campaign] was a textbook example for change in our judicial selection process.”

Love refused to comment on Albright’s letter or say whether he had received additional letters from other Supreme Court justices.

Bill Bissett, executive director of Citizens Against Lawsuit Abuse, says he favors discussing how judges are elected.

West Virginia is one of six states that elect judges through partisan primaries and it’s debatable whether that is the best system, Bissett said.

“I think it’s sad when a sitting Supreme Court justice says we can’t even discuss the way we’re putting justices on the court. When a Supreme Court justice sends you a letter, you read it,” Bissett said. “It’s not like [Love] is saying we need to change this tomorrow. We really need to look at whether we’re getting the best politician or the best judge.”

Albright said Tuesday anybody is free to discuss the issue. He objects to the State Bar being involved because of its status as a part of the judicial branch of state government. All West Virginia lawyers must be in the State Bar to practice law here.

Those favoring appointment or nonpartisan elections say judges would be more independent and less pressured by the political whims of voters. State Supreme Court justices serve 12-year terms.

“Judges were never meant to be representatives of our society. They were to be blind to groups and interests and decide those issues that come before them impartially,” Love wrote.

“To suggest, as it was in the just past contested partisan primary, that one candidate will further special interest of one group to the detriment of another, strikes at the heart of our system and demeans our profession.”

The state Chamber of Commerce and other business-friendly organizations, including CALA, ran television ads and conducted telephone polls in favor of Rowe. Labor groups ran ads in support of McGraw, who won the primary.

Those in favor of partisan elections say nonpartisan and appointed judges do not take politics out of the process. They argue the federal system, where judges are appointed for life by the president, isn’t even nonpartisan.

“It is among the most partisan systems imaginable, from senatorial recommendations to Justice Department ‘review’ to presidential appointment and Senate confirmation,” Albright writes in his letter. “Listen ... to media reports of federal court decisions ... Those reports almost invariably report the politically sensitive decisions ... in terms of which president appointed the judges on which side of the issue decided.”

Albright said “appointment of judges is simply an election where fewer people are allowed to vote.” Special interests will still influence the process behind closed doors at a cheaper cost “without the intrusion of those nasty hordes of ordinary, work-a-day people.”

To contact staff writer Chris Wetterich, call 348-3023.