CHARLESTON – Tish Chafin's proposed recusal rules changes for state Supreme Court justices don't seem to have much support among her fellow candidates.
During an editorial board meeting Monday with the Charleston Daily Mail, current Justice Robin Jean Davis said she doesn't think Chafin's plan to have Justices being able to remove each other from cases is a good idea.
"I think that would be very troublesome," Davis, a Democrat, told the Daily Mail editorial board. She also cited Michigan as one state that has a method similar to the one Chafin is proposing. Davis said the court there is "dysfunctional."
Chafin unveiled her Balanced Court Initiative last week. Under current state Supreme Court recusal rules, the decision on whether to recuse is left solely to the challenged justice.
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 or 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 publicly 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, a Democrat, said. "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."
No conflicts lately
Davis also told the Daily Mail board that conflicts haven't been much of an issue on the court of late.
"In the past 14 months, has it been a problem on our court?" Davis said at the meeting.
"In the past 14 months, Davis said the court's five justices had voluntarily removed themselves 46 times from cases," the Daily Mail's Ry Rivard wrote. "Only four times did lawyers have to ask justices to get off of a case. Justices removed themselves in three of those four cases. In the fourth case, Davis said a lawyer wanted a justice removed because the justice was in a pension system. Davis said every justice is in a pension system and if the justice had gotten off the case, every justice would have had to remove himself or herself."
During that same editorial board meeting, Supreme Court clerk Louis Palmer said discussed the Caperton vs. Massey case that spawned the recusal discussion. Chafin has 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."
"I am offended by that decision because in my judgment you had an agenda taking place and that's unfortunate," Palmer, a Democrat, told the Daily Mail board. "Justice (Brent) Benjamin is a victim of that agenda the majority had on the U.S. Supreme Court."
Palmer elaborated on that point with The West Virginia Record.
"I believe that the issue of judicial recusal is merely a red herring tossed into this campaign to garner media attention," he said Wednesday. "As I have indicated on the campaign trail, prior to and after the unfortunate judicial activist opinion rendered by five members of the United States Supreme Court in the Caperton v. Massey case, the state Supreme Court never had a public perception problem with its recusal rule. That rule is patterned after the rule followed by the United States Supreme Court and the Fourth Circuit.
"I am not opposed to keeping the current recusal rule in place, nor am I opposed to Chief Justice (Menis) Ketchum's current efforts to examine whether the Court's recusal rule needs to be modified. ... I do not offer up an alternative to the current recusal system, because I do not believe that it is broken."
Palmer did say he is against the idea of allowing Justices to "vote out" another member of the Court.
"I would strongly oppose a recusal rule that allowed Justices on the Court to decide whether another member of the Court should be removed from a case," he said. "Anyone vaguely familiar with human nature would know that such a rule is fraught with problems.
"Such a rule would turn Justices against each other at every turn -- chaos would be the order of the day -- as has been shown by the Michigan Supreme Court when the implemented such a system."
Already under review
Republican candidate Allen Loughry, who also is a current Supreme Court law clerk, says he is open to reviewing the recusal rules, but noted that Chief Justice Ketchum already is looking at the issue.
"Chief Justice Ketchum is already working on that issue now as one of his initiatives," Loughry said last week. "He is taking his time to thoroughly review how other states have dealt with this issue, and I am confident that solid rules will be produced that everyone will be pleased with at the end of the day. I am certainly not at liberty to reveal those private discussions with the Chief Justice, but I can assure you that he has a thorough understanding of this issue.
"Chief Justice Ketchum is not up for re-election this year which will lead to an impartial review. This is an issue that we need to review and apply common sense and not just make a bunch of comments based upon short-term political gain. With the implementation of the revised rules of appellate procedure, the Supreme Court has already proven that this is something that can be handled through revision of our current rules. And, it is something that I will strongly be involved with if I am fortunate enough to win a seat on this Court."
Jefferson Circuit Court Judge John Yoder, a Republican, told the Daily Mail he sought a change in the recusal rules in the 1990s when he was a member of the state Senate. He then worked with Chafin's husband Sen. Truman Chafin, D-Mingo. A bill was passed, but Gov. Gaston Caperton vetoed it. That veto came at the urging of Justice Margaret Workman, Yoder said.
"We're now 15, 20 years later and nothing's been done," Yoder told the Daily Mail.
Last week, Ketchum called Chafin's proposal "silly."
"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. "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."
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 Davis, Palmer, circuit judges J.D. Beane and Jim Rowe and New Martinsville attorney H. John "Buck" Rogers. Yoder and Loughry are the Republicans running.
The primary election is May 8, and the general election is Nov. 6.