CHARLESTON - Judicial elections are "notably different" than elections for legislative or executive offices, Judge Christopher C. Wilkes wrote in a concurring opinion filed last week.
Wilkes, of the Twenty-Third Judicial Circuit, was among the three judges appointed as replacements for West Virginia Supreme Court of Appeals Justices Robin Jean Davis, Brent Benjamin and Margaret Workman in a case over the state's Public Campaign Financing Pilot Program.
The three justices disqualified themselves.
Wilkes, along with Judge James P. Mazzone of the First Judicial Circuit and Judge J. Lewis Marks Jr. of the Fifteenth Judicial Circuit, heard the case in their places.
In his six-page opinion, released Friday, Wilkes agreed with the Court's conclusion that the matching funds provisions of the pilot program is unconstitutional.
In its Sept. 7 ruling, the state's high court deemed the provisions unconstitutional and, in doing so, denied state Supreme Court candidate Allen Loughry's writ seeking to force the State Election Commission to provide his campaign with matching funds.
In his opinion, Wilkes added that he only "reluctantly" agrees with the use of strict scrutiny in the context of judicial elections, "where First Amendment free speech will often necessarily be opposed to maintenance of an independent, unbiased judiciary."
The judge noted that judicial elections are "notably different" than other, "policy-based" elections.
"The majority notes that it is sympathetic with and agrees that judicial elections raise a number of compelling interests," he wrote. "I agree with this view, and believe it needs further elaboration."
Most elections require a candidate to state what he or she will do while in office, Wilkes explained.
"In this way, a candidate is espousing his or her policy beliefs, and the electorate is choosing him or her based, at least in part, upon what policy they think is best," he wrote. "A candidate's conduct in a judicial election is, and must be, different."
A judicial candidate is, in many ways, forbidden from stating what he or she will do when in office, the judge noted.
"These proscriptions, in themselves, are a recognition of the need for an independent, unbiased judiciary," Wilkes wrote. "Moreover, they display the quite different and important interests at play in a judicial election as opposed to policy elections for a legislative or executive office."
Wilkes admitted the stated interest of the law is "clearly compelling."
And like the rest of the Court, the judge said he finds it "impossible" for the matching funds provision to be narrowly tailored.
"As noted by the majority, this matching funds provision does nothing more than level the playing field between publicly funded candidates and privately funded ones," he wrote.
"As much as some may find this leveling appealing, it is too broadly drawn, having too much of an effect upon free speech to be considered narrowly tailored, or closely drawn, or not unfairly burdensome."
Loughry, a Republican, is the only candidate in this year's Court race to opt into the pilot program, which state lawmakers passed in an attempt to reduce the influence of special interest money.
In his 26-page petition for writ of mandamus, filed with the state's high court July 30, Loughry argued that the SEC "failed to carry out the unambiguous duty" imposed under the program.
"Through this failure, the commission violated the statutory command of W.Va. Code 3-12-11(e), which requires the commission to authorize the release of funds once a determination has been made that the conditions for a release of supplemental funds have been met," his petition stated.
"Due to the commission's failure to follow the law and perform this ministerial duty, the commission also failed to perform its duty, working with the offices of the State Treasurer and State Auditor, to cause the funds to be disbursed to Petitioner Loughry's campaign."
In its 5-0 ruling, the state Supreme Court explained that the question is not only whether the SEC has a statutory duty to authorize the release of the matching funds to Loughry but whether the funds provisions violate the free speech clause of the First Amendment.
"While we are sympathetic to petitioner Loughry's position and agree with his assertion that judicial elections raise a number of compelling interests, we are bound to apply the Supreme Court's interpretation of the United States Constitution," Chief Justice Menis Ketchum wrote for the Court.
The Court concluded that the U.S. Supreme Court's holding in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett -- the ruling Charleston attorney Michael Callaghan points to in a separate but related federal lawsuit over the pilot program -- applies to all elections to public office.
"The Supreme Court gave no indication in Bennett that judicial elections would be excepted from its holding. Nor are we persuaded that a majority of the U.S. Supreme Court is inclined to adopt a less rigorous standard than strict scrutiny to First Amendment issues involving political speech in judicial elections," Ketchum wrote.
The Court noted that it finds nothing in Bennett, nor in the relevant cases leading up to or decided after the case -- i.e. Davis v. Federal Election Commission, Caperton v. A.T. Massey Coal Co. Inc., Citizens United v. Federal Election Commission, and American Tradition Partnership Inc. v. Bullock -- that supports Loughry's position that the U.S. Supreme Court has "recognized or is inclined to find a judicial-election exception to its political speech jurisprudence generally or to its matching funds analysis specifically."
"Having determined that the Supreme Court did not recognize a judicial-election exception to its matching funds analysis in Bennett, and considering the similarities between Arizona's matching funds provisions and those set forth in our pilot program, we conclude that the pilot program's matching funds provisions place a substantial burden on the privately financed candidates' First Amendment free speech rights," Ketchum wrote.
Simply put, the pilot program's matching funds provisions cannot survive a strict scrutiny challenge because -- even though they address a compelling interest, the Court noted -- they are not "narrowly tailored."
"The Legislature had less restrictive remedies available to address the pilot program's goals that would not burden free speech," Ketchum explained in the 27-page opinion.
"The Legislature could have increased the amount of the initial disbursement to publicly financed candidates. This would have removed the need for government matching funds triggered by privately financed candidates' spending."
In its ruling, the Court said Loughry may retain the initial $350,000 disbursed under the pilot program.
"There is no constitutional problem with West Virginia providing a fixed contribution amount to publicly financed candidates. However, political speech rights are violated when West Virginia provides matching funds to publicly financed candidates based on the amount spent by privately financed candidates," Ketchum explained.
Noting that the case presents a "unique set of circumstances" -- a publicly financed candidate has "detrimentally" relied on matching funds provisions that are found to be unconstitutional two months before the election -- the Court said Loughry also may now seek private campaign contributions.
In his concurring opinion, Wilkes called the Court's conclusion allowing Loughry to solicit contributions "correct."