CHARLESTON – The fate of about $1 million in public campaign finance money for two state Supreme Court candidates now rests with five judges.

The state Supreme Court on March 23 heard oral arguments in candidate Beth Walker’s challenges to the campaigns for sitting Justice Brent Benjamin and Beckley attorney Bill Wooton.

Five sitting judges – filling in for all of the justices who recused themselves from the case – heard two hours of arguments.

Wooton attorney Bob Bastress argued that the fact Wooton’s campaign missed a legislative rule deadline to file for certification of his public financing with the State Election Commission by a few hours.

“The law in this case has, at its center, the discretion of the State Election Commission,” Bastress said during Wednesday’s oral arguments. “That exercise of discretion was clearly justified.

“The only punishment for Mr. Wooton’s campaign should be that he gets the money a day later.”

Spencer Elliott, who represented the SEC in both cases, said the question at the heart of these cases is whether the guidelines for compliance should be strictly upheld.

“It seemed fair to permit the application for Wooton’s certification one day late,” Elliott said. “The commission viewed its charges … as looking behind pure procedure and to look at what we was being presented.

“The SEC has given discretion. The SEC found there was no violation in permitting the application to be one day late. It allowed the commission to view substance.”

If the court does find that deadlines were missed, Elliott asked the court to remand the matter back to the SEC to determine what the punishment should be, if any.

Thomas Ryan, who represented Walker in the case, also said it all comes down to one question.

“The question here is whether or not the rules in the West Virginia Public Campaign Financing Act matter,” Ryan said. “The state’s decision to get involved into campaign financing for judicial candidates affects all of the candidates.

“There’s no ambiguity. It can’t be liberally construed. There’s no reason to go there.

“The rules were set forth in the statute. The deadlines were clear. He (Wooton) chose not to meet them. … The deadline must be enforced.”

In rebuttal, Bastress said the issue is whether the SEC abused its discretion about the consequences of missing a deadline. And, the SEC decided not to deny certification.

Concerning Benjamin’s appeal, attorney Jonathan Marshall said the question is whether the SEC does it job within practical realities for a relatively new statute.

“The SEC conclusions were supported by law and by facts,” Marshall said. “It isn’t like the Benjamin campaign was acting cavalierly and trying to not comply with the SEC rules.”

All five state Supreme Court justices had recused themselves from hearing the appeals.

On March 9, Chief Justice Menis Ketchum appointed Senior Status Judge Thomas H. Keadle to serve as acting chief justice in the appeals of incumbent Benjamin and Wooton, a former state lawmaker.

After he was named acting chief justice, Keadle appointed Fayette Circuit Judge John Hatcher, Ohio Circuit Judge James Mazzone, Mason Circuit Judge Thomas C. Evans III and Senior Status Judge James O. Holliday to sit with him as temporary justices on the cases.

On March 8, Benjamin said he would appeal Kanawha Circuit Judge Tod Kaufman's ruling that found his re-election campaign ineligible for public campaign financing money for his bid for re-election. They asked Kaufman to stay his ruling while the appeal take place.

In his decision, Kaufman found that the SEC's earlier decision to certify Benjamin for public campaign financing was erroneous, and he reversed the SEC decision.

Benjamin’s attorneys said in the motion that the case involves issues of first impression that are sharply contested by both parties and that the Benjamin campaign maintains that the SEC did not abuse its discretion in certifying him for public financing.

"Justice Benjamin will therefore by filing an immediate appeal to the Supreme Court of Appeals of West Virginia, seeking to have the State Election Commission’s decision in this case reinstated," the motion states.

Kaufman found that Benjamin’s campaign missed deadlines for filing the application for certification and a report of exploratory campaign contributions, which were issues that Walker’s campaign also raised during the SEC hearing, but those issues were ruled as invalid by the commissioners.

The Supreme Court also was asked to decide whether the SEC’s decision to allow Wooton to use public campaign financing money should be upheld, as Walker also filed a lawsuit challenging that decision.

The lawsuit against Wooton was assigned to Circuit Judge Charles E. King, and King agreed March 7 to send the issue directly to the Supreme Court in a certified question.

In certifying public campaign financing money for Wooton last month, SEC commissioners ruled that they had the discretion to give Wooton the money, despite him being a day late in asking for it.

This is the second election in which public financing has been used. Supreme Court Justice Allen Loughry used public financing in 2012 during the pilot program.

West Virginia Supreme Court of Appeals case numbers 16-0228 (Benjamin) and 16-0226 (Wooton)

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