Chief Justice post back on rotation

By Chris Dickerson | Nov 29, 2007






CHARLESTON -- Spike Maynard will be Chief Justice of the West Virginia Supreme Court of Appeals in 2008, and Brent Benjamin will hold the position in 2009.

In 2010, Justice Joseph Albright will be Chief Justice, according to a vote of the justices during a Nov. 20 administrative meeting.

Albright apparently expected to be Chief Justice in 2009 instead of Benjamin. But Chief Justice Robin Davis, Maynard and Benjamin voted otherwise.

First, the justices voted 4-0 for Maynard to be Chief Justice in 2008. Justice Larry Starcher was not present for the meeting. Then, there was a 3-0 vote to resume the rotation set forth in a 1979 order. Albright did not vote on that issue.

"There was a difference of opinion about the 1979 order," Supreme Court Administrative Director Steve Canterbury said. "Justice Albright believed it dealt primarily with seniority, so he thought he should serve after Justice Maynard. The others believed the order's directive was more about the rotation of the members, and that's what they think is what is more reflected in the court since 1980.

"Still, the choice of the chief justice is entirely a matter decided by a majority of the court year by year."

Since 1979, the state Supreme Court has followed a yearly rotation of Chief Justices. On a few occasions, that cycle has been broken, such as last year when the justices voted to give Davis a second consecutive term as Chief Justice and skip over Starcher's turn in 2007.

"The office of Chief Justice shall be rotated among the members of the court in accordance with the justices' seniority on the court," that 1979 order stated.

Looking at a list of Chief Justices over the last three decades, no justice has gone longer than five years before serving as Chief. And Albright last served as Chief Justice in 2005.

Richard Neely was removed from the seat in the middle of his term in 1985 when controversy erupted after he required his state-paid secretary to baby-sit for his son. Thomas Miller took over and then continued in his regular 1986 term.

In 1994, William Brotherton took a leave after suffering a heart attack. Neely took over and then filled out the rest of that term and his scheduled term in 1995.

Then, in 1996 and 1997, Thomas McHugh served two full terms as Chief Justice, likely because Neely had just served as Chief Justice and three new justices were on the bench.

The only real power of a chief justice, Canterbury said, is to name replacement justices when sitting justices recuse themselves from hearing a case, usually because of a conflict of interest.

The Chief Justice's primary duty is to appoint judges when someone has to be recused from a case.

Last fall, sources said Starcher was passed over for Chief Justice to punish him for his history of outspokenness that culminated with comments in the New York Times about a fellow Justice and Massey Energy CEO Don Blankenship.

"During the administrative conference, the only stated reason was that Chief Justice Davis had done a great job," Canterbury said last fall. "She is in the midst of her work on improving the lot of children in West Virginia. Her work with the DHHR (Department of Health and Human Resources) has been groundbreaking. The majority thought she had earned another one-year term as chief."

However, Albright then told a Parkersburg newspaper that the vote was to keep Starcher out of the position.

"The purpose was to deprive Justice Starcher of his rightful term as chief justice," Albright told the paper. "The motion was put forth by Justice (Brent) Benjamin and concurred in by Justice Maynard and Davis. There were two parts to the motion, and the second part put Maynard back in for 2008. You can tell from there what was being done.

"It has nothing to do with Davis doing a good job. She has done a good job, but I did a good job when I was chief justice, and we followed the rotation."

Starcher critics say the move was spurred by Starcher's comments in the Oct. 1, 2006, New York Times. That, the critics say, is the proverbial straw that broke the camel's back.

In the article, Starcher said, "It makes me want to puke to see massive amounts of out-of-state money come in and buy a seat on our court. ... Now we have one justice who was bought by Don Blankenship."

That is a reference to Blankenship's 2004 effort in backing Benjamin in his victory over incumbent Warren McGraw. Blankenship spent nearly $3 million on the campaign with his political action group And For The Sake Of The Kids as well as other advertising.

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