CHARLESTON – The Independent Commission on Judicial Reform is scheduled to submit its report to Gov. Joe Manchin on Nov. 15.
While neither he nor the state Supreme Court are directly involved in the commission, Chief Justice Brent Benjamin has some thoughts about some of the topics the panel has been examining.
Benjamin, who is finishing up his first year as Chief Justice, stressed during a Nov. 10 interview that his thoughts are personal and that the Court has not taken a position.
"First, I think it's very difficult to do anything in three or four months," Benjamin said of the commission's task. "If the court were to look at these issues, I think we'd want more specific factual data.
"I think it's always good to look at things. We are not the same court system we were in the 1860s. Change happens. When people feel the winds of change, the question becomes do you build walls or windmills."
Benjamin, the first new Republican elected to the state Supreme Court since 1928, said he isn't sure where the commission will go with their recommendations.
"I think there will be a great need to do even more study," he said. "The commission surely will raise some areas of concern and will anticipate the need for more study, I think."
But Benjamin did offer his thoughts on some of the more high-profile topics that might be addressed in the report.
As for the merit selection of judges, Benjamin said that term is a misnomer.
"That is marketing, pure and simple," he said.
He offered the following example.
"This elected court right now, the Supreme Court of Appeals of West Virginia, we had 90 percent unanimity in the January term," Benjamin said. "We communicate, and we are elected. The United States Supreme Court, which is created through a selection process, has more 5-4 decisions than anytime ever, from what I understand.
"It's not how you select, it's who you select."
He said some argue that the nation's founders came up with this selection model, so we should use it, too. Benjamin said that, too, is misleading.
"Back in the 1780s, none of the seven choices under consideration were elections," Benjamin said. "So, that logic fails. If we stayed their course, we'd still have state Legislatures selecting U.S. Senators. And how did the U.S. Constitution originally handle African-Americans?"
Benjamin then mentioned Sandra Day O'Connor, the former U.S. Supreme Court justice who is serving on the state Independent Commission on Judicial Reform.
"She'd still be waiting to vote by our original U.S. Constitution," Benjamin said. "We evolved into the election method. Why go back? Why devolve?"
Benjamin noted that the Constitution and its three branches of government idea requires the judicial branch of government to protect citizens against excesses of the other two branches.
"Let people pick their judges," he said. "It makes sense. To paraphrase John F. Kennedy, a state afraid to let its people vote is a state afraid of its people. The notion that people can't be trusted to have a say in government ... that is really sad.
"Certainly, elections can be tough, but I have confidence in people. give them the information and believe in them. Why should we believe more in government to make the right choice than in people to do so?"
Though Benjamin also said he sees no changes coming in terms of the partisan election of judges, he said he does wish the role of partisan politics could be reduced or eliminated in judicial races.
"Our circuit judges have said they want no change from the current plan," he said. "We're one of the few states that do it this way.
"The idea is that with an 'R' or a 'D' after a candidate's name, the voter has greater information. Sorry, I find that argument completely fails.
"From a practical standpoint, no Democrat completely agrees down the line with another Democrat on every issue. The same goes for Republicans."
As an example, he used two former state Supreme Court justices -– Spike Maynard and Larry Starcher.
"They both are Democrats, but I defy anyone to tell me their approaches to cases were the same," Benjamin said. "The 'D' didn't mean a whole lot there.
"The bigger problem is whether people have a choice. Part of a democracy is having a choice."
Benjamin said he understands why the partisan part of a judicial election can be troubling to some.
"The concept is that judicial candidates shouldn't be tied down to certain partisan policy positions, especially when you take the idea of a straight party ticket," he said. "That may conflict with the judicial candidates' duty to not take a position on certain issues."
Benjamin also discussed other topics addressed in the commissions meetings:
* A mid-level appellate court:
Money would be an issue, Benjamin said, noting that it could take as much as $15 million to start such a court.
"It can be said that the more judges, the better the result," he said. "But the state is facing tough economic times. You'd have to look at the benefit and the cost. You have to look at the benefit and cost not just to taxpayers, but also to the litigants. That's something we as judges have to consider.
"My overriding concern is this. Why would we ever be talking about adding another level of court when we can't afford the judges we already have? Family court judges are woefully underpaid. (At $82,500, they are the lowest paid such judges in the nation). Even with a $20,000 raise, they would still be dead last in pay in the United States. As Chief Justice, I have to look out for this branch of government. I question why we'd even consider a new level of government in view of this."
As an alternative, Benjamin mentioned what some call a Deflection Middle Level Appellate system that involves cases being sent down to a lower appellate court level from the Supreme Court. Such a system is found in Iowa, Oklahoma and Nevada. He has discussed such a system with the Chief Justices of those states.
* A chancery court system:
Sometimes called a business court, this is an idea that has been mentioned by House Speaker Rick Thompson. And Manchin has said he likes the idea.
"Would a business court model be beneficial to our state or would it become just a mediation system?" Benjamin wondered. "Some of our surrounding states ... have found it to be beneficial. The Chief Justices from Delaware, North Carolina, Maryland and New York all embrace the idea."
Benjamin stressed that a business court is not designed to favor businesses or to hurt consumers.
"It's a court docket which specializes in business-to-business issues, such as contracts, and other business-related special litigation," he said. "From the court's perspective, I would ask how it would benefit West Virginia."