Maynard expected to appoint temp justice in coming days

By John O'Brien and Kelly Holleran | Sep 10, 2008


Justice Joseph Albright announced he would no longer perform his duties at the West Virginia Supreme Court of Appeals for the current term because of health reasons.

That leaves Chief Justice Spike Maynard with the task of appointing a replacement, which he is expected to do in the next few days. Albright is still recovering from a July 28 surgery.

Albright had a six-hour esophagectomy at the University of Pittsburgh Medical Center Presbyterian Hospital and wanted to participate from his hospital bed, watching the streaming video of arguments the Supreme Court's site offers.

But in a statement, Albright said he was advised his medical condition would not permit his full return to the court this term.

"While my powers of analysis are fully intact, it appears to be preferable for me to concentrate on the healing of my body and the restoration of my physical abilities," he said.

The esophagectomy involves removing the esophagus, the tube leading from the mouth to the stomach.

According to the University of Pittsburgh Medical Center's Web site, the procedure is primarily used to treat esophageal cancer, but may also be used to treat benign tumors and cysts of the esophagus or other esophageal abnormalities. The average hospital stay for the procedure is two weeks.

Jennifer Bundy, spokeswoman for the court, said she did not know why Albright was having the procedure performed.

Albright indicated that he intends to resume full judicial duties at the Court in January 2009. He was elected to the state's highest court in November 2000 for a full 12-year term.

A court information officer said cases set for argument this term will not be delayed.

"All opinions in those cases will be issued before this term of court ends on Nov. 21, 2008," a statement said.

The court's docket was packed with oral arguments today and Wednesday, until Maynard informed observers of the postponement at about 2:30 p.m.

"The arguments that would have been heard this afternoon will be heard on Sept. 23 in Charleston. The court will not go to Marshall University that day as planned. Cases scheduled for tomorrow's motion docket and argument docket will be rescheduled."

Supreme Court Administrator Steve Canterbury said Albright's decision should not be viewed as a sign his health is getting worse.

"From all reports, he's doing better and getting stronger. He's doing as well as one could expect," Canterbury said.

"I don't think anyone believes his health has turned for the worse. It's my understanding that he's out of the (Intensive Care Unit) and in a regular hospital room.

"His mind is strong and clear-headed -- that's not the issue. His body just isn't cooperating."

Because Albright is not permanently resigning from the Court, his decision should have no impact on the Nov. 4 election, said Luke Lafferre, an attorney in Huntington.

"I don't see how it could effect the election at all," he said. "The balance of power won't change."

West Virginia Supreme Court of Appeals candidate Margaret Workman agrees.

"We've had so many issues on the Supreme Court in the past couple of years," she said. "He's just stayed out of the fray. He's very dignified and we need him back on the Supreme Court.

"He is such a great guy. I am friends with him and his wife, Nancy. I am just praying for his full return to health. He really is a treasure to the state of West Virginia."

The decision may have an impact on the Court for this term, though.

Since Maynard is in charge of appointing Albright's replacements, he would probably elect someone with his same views, Lafferre said.

"You would expect Maynard to pick replacements who are more conservative than Justice Albright usually is," he said. "Albright has an expansive view of the law and Maynard is the opposite."

As for now, lawyers and politicians across the state are hoping for Albright's healthy return to the Court.

Gov. Joe Manchin understands Albright's decision and wishes him well, said Manchin's spokeswoman Lara Ramsburg.

"We respect Justice Albright immensely and wish him nothing but the best," she said.

Charleston attorney Kent Carper, too, hopes for Albright's quick recovery.

"The only important issue is his health," Carper said. "That's what we should all be worrying about."

Beth Walker, another state Supreme Court of Appeals candidate, said she respects his decision.

"I wish him the very best as he recovers from his surgery," she said.

Maynard will have to appoint a circuit judge or senior status judge to take Albright's place. Should he choose a circuit judge, he would have to find a replacement to take on that judge's caseload.

The governor's office only appoints a judge or justice if one dies or resigns in office.

The 69-year-old Albright is from Wood County and was Speaker of the House of Delegates from 1985 until 1986 after having been elected to the chamber in 1970.

"He's a fair, wonderful jurist, and the only thing that is important is his health," Carper said. "He's a wonderful person, and I wish him Godspeed."

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