If a pending bill passes in West Virginia, Republican Gov. Jim Justice — a billionaire former coal company executive — will appoint 82 percent of the state's appellate judiciary in just his first term. The bill, which would create a new appeals court, is likely to pass the state Senate, but the state House declined to take up a similar bill last year. West Virginia's five-member Supreme Court of Appeals, as the high court is known, is currently its only appellate court.
In the last few months, Justice has appointed replacements for three Supreme Court justices who resigned in the wake of a scandal involving lavish renovations and overspending. Two former justices face criminal charges, and another resigned in the wake of the state legislature's impeachment of the entire high court.
The impeachment trials were halted for violating the separation of powers by a substitute state Supreme Court assembled due to the justices' conflict of interest. The substitute court criticized the impeachment process as "a rush to judgment to get to a certain point without following all of the necessary rules." By that point, three seats had already been vacated. Justice appointed a majority of the court in the span of a few months.
The legislature is now considering a bill to create an Intermediate Court of Appeals, and it would allow Justice to appoint all six members of the court, which would be divided into two districts. If the bill passes, the governor will have appointed nine of the 11 judges on the state's appellate judiciary.
This radical re-shaping of West Virginia's judiciary is happening as the state's high court hears a lawsuit over noise and air pollution from fracking, as well as other oil and gas cases. A local attorney recently argued that a new appellate court isn't necessary because the state's "population is declining, new case filings are down, and the number of appeals to our Supreme Court continues to decline."
Under the two pending bills, the new court would be up and running by July 2020, a few months before Justice faces re-election. If his picks are confirmed by the state Senate, they would serve staggered terms, from six to 10 years, and could then be re-nominated.
The bill as currently written would create the first unelected judges in the history of West Virginia. The state constitution says that trial court judges and high court justices must be elected, but it doesn't include a similar requirement for an appeals court.
The West Virginia Chamber of Commerce, which spent big in 2016 to help elect Chief Justice Beth Walker, supports the creation of a new appeals court. Walker defeated incumbent Justice Brent Benjamin, who was elected in 2004 with the help of $3 million from coal mogul Don Blankenship.
The state Supreme Court has been a target of the Koch brothers-funded American Tort Reform Association (ATRA), which recently criticized the court for authorizing a class-action lawsuit by U-Haul customers over hidden rental fees. The ATRA lobbies for so-called "tort reform" bills that limit lawsuits, especially suits brought by the most severely injured plaintiffs. In 2018, the ATRA contributed more than $250,000 to the campaigns of two former Republican legislators whom the governor appointed to the high court. The group has also given millions of dollars to the Republican State Leadership Committee, which runs ads to support or attack judicial candidates across the country. The ATRA supported a previous proposal to create an intermediate appeals court.
West Virginia legislators are considering other changes to judicial elections, as well as a constitutional amendment to require Senate confirmation for the governor's appointees to fill vacant seats. In November, voters approved a constitutional amendment giving the legislature control over the judiciary's budget, and the legislature will soon pass a budget with this new authority. Some court officials are bracing for budget cuts.
Rather than introducing bills to pack the courts, the group WV Citizens for Clean Elections is asking legislators to strengthen the state's campaign finance laws, judicial ethics rules, and the state's public financing program for judicial candidates, which allows judges to avoid relying on large campaign contributions from wealthy donors.
'Attacks on Kentucky's judges'
The push to reshape West Virginia's judiciary comes as legislators in a growing number of states are considering power grabs to gain more control over state courts. Last year, for example, Republicans in North Carolina and Pennsylvania threatened to impeach judges over rulings that they didn't like. North Carolina legislators also proposed constitutional amendments last year to give them more control over choosing judges, though voters soundly rejected the final amendment in November. The Brennan Center for Justice reports that legislatures in 18 states last year "considered at least 60 bills that would have diminished or politicized the role of the judiciary."
Those states include Kentucky, where Republican Gov. Matt Bevin referred to a unanimous ruling by the Kentucky Supreme Court last month as a "sad day for the rule of law." The ruling struck down a bill to slash pensions for state employees. When the law was passed in March 2018, thousands of teachers rallied in protest at the state capitol.
Opponents were angered by the process as well as by the law's aim. Legislators had hastily changed a short bill involving sewers into a law restructuring state pensions that was hundreds of pages long. Democratic Attorney General Andy Beshear immediately sued, arguing that legislators failed to comply with the state constitution's clear procedure for lawmaking.
As the Kentucky Supreme Court heard the case, Bevin tweeted that Beshear's argument "has NOTHING to do with the merits of the bill and EVERYTHING to do with procedure and politics." The trial court disagreed, and when the high court upheld the decision in December, the governor criticized the ruling as "an unprecedented power grab by activist judges."
Justice Daniel Venters, who recently retired after authoring the court's ruling in the pension case, wrote an op-ed defending the unanimous decision as a common-sense application of the state constitution. He warned that "the governor's false attacks on Kentucky's judges will undermine the public's confidence and trust in the courts of Kentucky." Venters even said that he likes the pension reform bill, but it was clearly unconstitutional.
The first judge to strike down the pension law was Phillip Shepherd, who presides over Franklin County, which includes the state capital of Frankfort. While the suit was pending, Bevin called Shepherd an "incompetent hack" — even though an analysis by the Louisville Courier-Journal showed that Shepherd more often ruled for Republicans in high-profile cases.
The Kentucky legislature is considering a bill that would allow it to avoid defending its laws in front of Shepherd or the other judge that presides over Franklin County. A Democratic leader in the state Senate said he was "very skeptical of any piece of legislation which is directed particularly at one judge and one court." The North Carolina legislature passed a similar bill a few years ago requiring lawsuits challenging statutes to be heard by panels of three judges chosen from around the state, rather than judges in the capital county.
Kentucky Republicans have also talked about a constitutional amendment to change how judges are chosen. In a 2017 speech to the conservative Federalist Society, Bevin suggested changing the state constitution to allow him — not the voters — to choose Kentucky's judges.
Senate Majority Leader Damon Thayer echoed Bevin's criticism of "liberal activists" on the bench and endorsed the idea of changing how judges are chosen. Asked if he was suggesting retaliation for the pension ruling, Thayer called the decision "a blow to the legislative branch." Judges, he said, "need to be reined in."