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The Charleston Gazette - "Supreme court candidates address recusal issue"

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Location: Charleston, WV


Three of four Democrats vying for two 12-year terms on the state Supreme Court seemed agreed that the publics' perception of the court has dimmed, but one said it's getting better.

"I think the court, in at least so far as recent decisions, is headed in the right direction," said Chief Justice Elliott "Spike" Maynard.

Maynard of Mingo County, former justice Margaret Workman of Kanawha County, Cabell County lawyer Menis Ketchum and West Virginia University law professor Bob Bastress met with Gazette editors Thursday in a roundhouse interview that flew from one personality to another.

Ketchum said the court "is getting eaten up with the extremes, and extremes are bad for business, bad for labor." He called for movement back toward the middle.

Workman said her past record on the court was "one of fairness."

"During those years I think the court was at its high point," she said.

Since then, she believes the court's reputation has diminished.

The recent furor over Maynard vacationing with Massey Energy CEO Don Blankenship in Europe while a Massey case was before the court, led to questions about why Maynard did not recuse himself from the case sooner. Maynard heard the case, then stepped aside when pictures of him vacationing on the Riviera with Blankenship surfaced.

"There was never a request for a recusal," Maynard said of the case.

"A judge should not have to be asked," said Ketchum.

Workman agreed with that, saying "the better practice is for judges and justices to be pro-active" in recusing themselves.

Questions arose about whether Justice Brent Benjamin should have recused himself from the same Massey case. Blankenship dumped more than $3 million into the 2004 campaign to help elect Benjamin.

Maynard said he would not comment directly on Benjamin, but said a justice knows "[your] own heart and your own mind."

"But the appearance is overwhelming," countered Ketchum. "He may be able to make a fair judgment, but you can't convince the public of that."

Workman suggested the court adopt a recusal policy that would allow a three-judge panel to decide if justices should recuse themselves.

Actions like Benjamin's only hurt the publics' perception of the court and justice, Ketchum contended.

He called on justices to disclose what types of relationships they have with anyone coming before the court.

"The people have lost their confidence in the court," he said.

"There's a lot of turmoil going on up there," Workman added.

Maynard said in the case of Blankenship, it was only his firm that was named a litigant. "Mr. Blankenship is not personally a party in those cases," he said.

He pointed out that he has ruled in 16 cases involving Massey Energy, or a subsidiary, and has voted against the company nine times.

But Bastress said the standard should be to disclose.

"It seems to me a close relationship with a company's CEO is something [the other side] would be interested in," he said.

Discussion turned to a recent ruling in which Justice Robin Davis voted to allow the case of a Charleston physician, whose sister is a close friend of hers, to continue his lawsuit. Dr. R.E. Hamrick Jr. won a $25 million verdict and was represented by Davis' husband, Charleston lawyer Scott Segal.

"I'm really uncomfortable in even listening to this," Maynard said, excusing himself from the room. The case could again come in front of the high court, and Maynard said he didn't want to have to recuse himself from another case.

Both Workman and Bastress noted it has been Davis' practice to recuse herself in cases in which her husband is involved. The initial ruling she helped make was prior to her husband's taking over the case.

"Let's call a spade a spade," Ketchum said.

He pointed out that Charleston lawyer Karen Hamrick Miller is a close friend of Davis.

"Now we get back to the friendship thing," he said. "Do you sit on your friend's case? No."

He called for everyone getting a fair shake from the court and said the court has become political and certain lawyers can win cases there, while others cannot.

"There is a perception that the lawyer makes the difference," agreed Bastress.

Maynard later returned to the discussion. West Virginia's primary election is May 13. Two of the five state Supreme Court seats are up for election - those held by Maynard and retiring Justice Larry Starcher.

Beth Walker, a Charleston lawyer, is running unopposed in the Republican primary.


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