Last month, five judges sitting in for the state Supreme Court ordered that the Supreme Court campaigns of Bill Wooton and incumbent Justice Brent Benjamin should get about $500,000 each in public campaign financing money. The orders were issued on March 23, just hours after five replacement justices heard oral arguments in the matters.
"The court is of the opinion, based upon the applicable law, that the circuit court’s answer to the certified question as formulated was erroneous," the March 23 order in the Wooton case stated, reversing a ruling earlier in March by Kanawha Circuit Judge Charlie King. "Accordingly, the court answers the certified question in the affirmative. The State Election Commission’s order certifying petitioner Wooton as eligible for public campaign financing funds is hereby reinstated and the court reserves the right to reformulate the question in the opinion that will follow in due course."
In the Benjamin case, the justices reversed an order by Kanawha Circuit Judge Tod Kaufman.
"The decision of the State Election Commission certifying Brent D. Benjamin, as eligible to receive public campaign financing funds is hereby reinstated," they wrote on March 23.
On April 19, the official opinions were issued. The sitting justices expanded on the orders.
“Respondent Walker frames the argument as one involving ‘the fundamental and sacred constitutional rights of free speech and substantive due process …,’ but there is very little meat on these constitutional bones,” the Wooton opinion states. “This Court has held that ‘speech is chilled ‘when an otherwise willing speaker is prevented from speaking, or cajoled into no longer speaking, by government conduct[,]’’ and it would be a far stretch to conclude that the certification of Petitioner Wooten for public funding in any way abridges or chills Respondent Walker’s free speech rights.
“She is as free now as she was prior to February 5, 2016, when the Commission certified Petitioner Wooten for public funding, to conduct her campaign and articulate the reasons she believes herself to be a candidate worthy of support at the ballot box.”
The Court said Wooton’s late submission of his campaign finance statement didn’t affect anyone’s campaign other than Wooton’s, “let alone caused any prejudice or harm to anyone.”
“Nothing in the history or language of the (Public Campaign Financing) Act suggests that a violation of any rule, no matter how inconsequential, carries a mandatory ‘death penalty’ for a participating candidate,” they wrote. “A certificate of candidacy is a very different thing from the pro forma sworn statement at issue in this case; submission of the former sets in motion all of the machinery necessary to prepare the ballots, while submission of the latter is merely the final ministerial step allowing issuance of a check to a participating candidate who has otherwise fulfilled every obligation imposed by law on him or her.
“The only person prejudiced by late submission of the sworn statement is the candidate, who will suffer a delay in receipt of the funding necessary to run his or her campaign.”
They said Walker didn’t show any prejudice resulting from the State Election Commission’s decision to certify Wooton “other than the conclusory assertion that any exercise of discretion by the Commission in enforcing procedural deadlines will cast a ‘shroud of doubt’ over the election. We disagree.
“In this case, as noted above, the only prejudice was suffered by Petitioner Wooton himself, as his late filing of the sworn statement resulted in a delay in his receipt of the funding he needs to run his campaign,” they wrote.
In the Benjamin ruling, the Justices said they saw no evidence that Benjamin always intended to seek public financing but waited as long as possible before making it official.
“There is not one shred of evidence in this voluminous record to support such a finding and it cannot serve as a basis for the court’s rulings,” they wrote. “The circuit court’s subsequent conclusion that Justice Benjamin was not entitled to a hardship exemption is both factually insupportable and legally erroneous. …
“The court below exceeded the permissible scope of review in ignoring the Commission’s factual finding and concluding that Justice Benjamin’s failure to timely file his final report was his own fault – finding that could not stand even if the court were otherwise entitled to make it.”
The acting Justices also said the SEC had no authority to grant a hardship exemption as to the timing of a filing, only as to its form.
“In this regard, we find that the court’s reasoning is hairsplitting at best and sophistic at worst,” they wrote. “Justice Benjamin could not have discovered the problem with the Secretary’s software until February 2, 2016, when he attempted to electronically file his final exploratory report.
“Accordingly, we hold that under the ‘West Virginia Supreme Court of Appeals Public Campaign Financing Program,’ W. Va. Code § 3-12-1 et seq. (2014), where a candidate is required to file a report electronically and is unable to do so for reasons beyond his or her control, the West Virginia State Election Commission has discretion to grant a hardship exemption to the candidate as to the form of the report and to extend the deadline for filing of the report in its revised form.”
On March 23, the court heard oral arguments in candidate Beth Walker’s challenges to the campaigns. Five sitting judges – filling in for all of the justices who recused themselves from the case – heard two hours of arguments.
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.
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)