15 June 2009

More Fallout from SCOTUS' Benjamin Ruling (Updated)

As early as Monday, Gov. Joe Manchin is expected to announce appointees to his Independent Commission on Judicial Reform.

(Update: Manchin made his picks, AP reports, and retired U.S. Supreme Court Justice Sandra Day O'Connor has agreed to serve as honorary chair.

As for the nine voting members, "appointees include Mary McQueen, president of the National Center for State Courts; former state Justice John McCuskey; retired Kanawha Circuit Judge Andy MacQueen; and former gubernatorial aides Thomas Heywood and Carte Goodwin," that article said. "Rounding out the commission are State Bar President Sandra Chapman, prominent Charleston trial lawyer Marvin Masters, and both Dean Joyce McConnell of West Virginia University's law school and Associate Dean Caprice Roberts.")

Exhibit A for this nine-member panel may be last week's U.S. Supreme Court ruling. As The Associated Press reports, "t
he 5-4 decision faulting state Chief Justice Brent Benjamin for failing to recuse himself from a case speaks to several of the topics that Manchin has assigned."

The article also notes that "
as the governor has given his commission until Nov. 15 to issue a report, he is unlikely to propose or endorse any policy changes prompted by the ruling before then."

His office signaled as much after Senate Judiciary Chairman Jeff Kessler urged him to pursue legislation on the topic during the special session scheduled to coincide with this week’s interim meetings," the article said.

Topics might also include the state's existing recusal standard for judges and justices. The article notes that "
the state court also released a “personal” statement from Benjamin. “I am pleased that the Supreme Court has not questioned my ethics, my integrity or my personal impartiality or propriety,” he wrote, adding that “the Supreme Court’s majority opinion recognizes that there is no ’white line’ to guide judges like me.”"

But as AP reported:

The U.S. Supreme Court decision noted that Benjamin “did undertake an extensive search for actual bias. But,” it continued, “as we have indicated, that is just one step in the judicial process; objective standards may also require recusal whether or not actual bias exists or can be proved.”

Invoking language from previous rulings, the U.S. justices concluded that the timing of Massey’s appeal and the “significant and disproportionate influence” of Chief Executive Don Blankenship’s spending “offer a possible temptation to the average ... judge to ... lead him not to hold the balance nice, clear and true.”

“The failure to consider objective standards requiring recusal is not consistent with the imperatives of due process,” Justice Anthony Kennedy wrote for the majority. “On these extreme facts the probability of actual bias rises to an unconstitutional level.”

The decision also said that states “may choose to adopt recusal standards more rigorous than due process requires,” but noted as well that “almost every State — West Virginia included — has adopted the American Bar Association’s objective standard: ’A judge shall avoid impropriety and the appearance of impropriety.”’
The governor plans to appoint at least two lawyers, two law professors and two retired jurists to this commission, the article said.

"Manchin’s executive order, signed in April, enlists both the dean of West Virginia University’s law school and the president of its State Bar to serve on the study commission as nonvoting members," AP explains. "Manchin also suggested “a person of special expertise” as honorary chair. Retired U.S. Justice Sandra Day O’Connor has been touted for that seat, but has not yet commented publicly on the offer."

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