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State of West Virginia

Judicial Selection in the States: West Virginia

Overview

News

I mentioned in the last post on Arkansas Issue 1 that most states elect the clerks of their general jurisdiction courts. In all, a total...

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On the ballot this November in Arkansas is Issue 1, a constitutional amendment that would make several changes to the terms, election, and eligibility of...

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The Oklahoma Senate yesterday approved its version of HB 3162, a constitutional amendment that would restructure the way appellate judges are chosen in the state...

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Courtesy of the Bureau of Justice Statistics, U.S. Department of...

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The West Virginia judiciary consists of a supreme court of appeals, a circuit court, a family court, a magistrates court, and municipal courts. The supreme court of appeals is the state's appellate court, and the circuit court is the trial court of general jurisdiction. Except for municipal court judges, whose selection method varies by municipality, judges have been chosen in partisan elections since West Virginia achieved statehood in 1862.

A 2004 supreme court of appeals race in West Virginia garnered national attention because of the number of attack ads aired by both candidates and special interest groups and the negativity of the ads. More than four of every five ads aired by the campaigns were attack ads, and of all the attack ads aired in 2004 in supreme court races, nearly 43% aired in West Virginia alone.

In 2009, the U.S. Supreme Court reviewed a West Virginia high court ruling that stemmed from the 2004 race. Brent Benjamin, the candidate who successfully challenged an incumbent justice in that contest, had received $1000 in campaign contributions from Don Blankenship, the president and CEO of Massey Energy. Blankenship also spent $3 million in support of the challenger's election. At the same time, Massey Energy was involved in litigation in which it had been ordered to pay $50 million in damages, a figure which grew to $82 million with post-trial interest. In 2006, Massey Energy's appeal of this verdict reached the West Virginia Supreme Court of Appeals. Justice Benjamin twice rejected motions by the opposing party, Hugh Caperton, that he recuse himself because of Blankenship's campaign support, and Benjamin joined a 3-2 majority overturning the ruling against Massey Energy. Caperton appealed to the U.S. Supreme Court, alleging that Benjamin's failure to recuse himself violated constitutional guarantees of due process. In Caperton v. Massey (2009), a 5-4 Court agreed. Writing for the majority, Justice Kennedy described this as "an exceptional case" in which one of the parties "had a significant and disproportionate influence in placing the judge on the case." Because of the "serious, objective risk of actual bias," due process required Benjamin's recusal from the case. The decision has prompted recusal reform proposals in many states that elect judges, as well as calls for broader selection reform.