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Justice race features once-taboo issues

West Virginia voters expect candidates for governor and the Legislature to offer their stances on health care, abortion and economic development. But such topics have also emerged in the Supreme Court race, in the shadow of long-standing rules that previously curtailed such talk.

Seeking a second term, Chief Justice Elliott "Spike" Maynard has made jobs a recurring theme of his campaign. At one forum last month, he said the state's judiciary should consider whether "their decisions promote jobs or hurt the climate of West Virginia so that we don't have jobs."

He and fellow Democrat Menis Ketchum, a Huntington lawyer, have both vowed to uphold recently passed limits on medical malpractice lawsuits and jury awards. They and Margaret Workman, a Democrat and former justice, have also described themselves as opposing abortion.

West Virginia University law professor Bob Bastress, also a Democrat, has said he supports a woman's right to choose. Republican Beth Walker has commented on the state's business climate, with the Charleston lawyer focusing on the state's poor showing in national rankings.

"We all have opinions. Why hide behind the mask?" Ketchum remarked during Saturday's candidate forum hosted by The Associated Press' broadcast members. "How can people vote for me if I don't tell them, or answer their questions?"

Critics may argue some candidate statements fail to reflect their records, but the comments mark a departure from traditional judicial campaigns. Unlike that of other elected offices, special rules govern the campaigns of judicial candidates. Among other provisions, these rules say such candidates shall not "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office."

They also prohibit "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court."

But a 2002 U.S. Supreme Court decision, which struck down one of Minnesota's ethical rules for judicial candidates, has spurred questions about such rules in West Virginia and other states that elect their judges. It concluded that states cannot stop a judicial candidate from expressing "his or her views on disputed legal or political issues."

West Virginia's Judicial Investigation Commission oversees the conduct of the state's judiciary and the candidates for its offices. In an advisory opinion issued last month, the commission "acknowledges that the [2002] decision permits candidates under the first amendment to state their general views about disputed social and legal issues."

The March opinion had advised against advertising proposed by an unidentified candidate for circuit judge, who wanted to advocate "high bail" and "harsh sentences" for out-of-state drug traffickers. But it also noted that both the 2002 ruling and a subsequent court decision "teach that candidates have a constitutional right to state their views on, for example, abortion or the death penalty, to characterize themselves as 'conservative' or 'tough on crime,' or to express themselves on any number of other philosophies or perspectives.'"

The commission opined further, however, that "while a candidate may have views on disputed issues and may announce them, once elected, a judge must be able to listen to the arguments of all litigants and give each due consideration."

Deborah Rhode, law professor and director of the Center for Ethics at Stanford University's law school, is among those who believe the resulting situation underscores the problem with electing judges and justices.

"You want judges to be accountable, but you don't want them to be sensitive to the latest public opinion poll," Rhode said. "To play to political prejudices in an effort to get elected compromises judicial independence and integrity."

Georgetown University law professor Roy A. Schotland, who has taught and written on judicial elections, believes the current climate has candidates talking in code. He cited other states where candidates have "announced" views on issues, including medical malpractice lawsuits in Ohio and arbitration in Alabama.

But Schotland advocates an alternative to ending judicial elections: independent, bipartisan and diverse campaign conduct committees to police them. He touted such panels created in Ohio, Kentucky and Alabama. He also warned against following the model adopted in Wisconsin. There, he said, a Democratic trial lawyer stacked the committee with like-minded members.

"It's been just disastrous," Schotland said. "We've never had a committee like that, ever."


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