West Virginians have electoral choices in a few weeks that will shape the majority of the state Supreme Court.
Three seats are up on the five-member court. There are no political parties for court races, so there is no primary election. Voters get one shot to choose who deserves a long term on the bench.
And those stakes are during a pandemic that has largely diverted attention from normal political discourse.
The first Supreme Court race on ballots includes distinct choices among three candidates.
They are current Chief Justice Tim Armstead, a former House of Delegates speaker who was first appointed to the court during a period of turmoil; former Justice Richard Neely, who was the youngest justice in the nation when he was elected in 1973; and Circuit Judge David Hummel, who boasts nuts and bolts courtroom experience.
They are running for a full 12-year term identified as Division 1 on ballots.
The three candidates are joined in the same unprecedented campaign situation because of the pandemic. But each says there are enough differences to set them apart — if they can get their message through.
Armstead, the incumbent, was appointed to the Supreme Court on August 25, 2018, during a crisis on the court.
Three justices resigned that year during an investigation of the Supreme Court’s spending habits. Impeachment proceedings took place in the House of Delegates, where Armstead led the majority as speaker.
Two of the justices, Allen Loughry and Menis Ketchum, faced federal fraud charges. Ketchum pleaded guilty and resigned the court prior to the legislative impeachment proceedings.
Gov. Jim Justice appointed Armstead, an Elkview resident who served legislatively as a Republican, to what had been the Ketchum seat.
Armstead almost immediately faced special election for the seat on Nov. 6, 2018.
He won in a 10-candidate field with a 26.1 percent plurality of the vote. This year, his fellow justices named him the chief.
Now, just two years later, Armstead is running for his first full term.
“I knew I would be running for re-election this year. So we just pretty much continued on the campaign trail going to a lot of events and festivals and parades,” Armstead said in a recent telephone interview.
“So I’m glad we did that because had we not with the limitations we now have we wouldn’t have been able to.”
Neely also has a long association with the Supreme Court. Or, as his Wikipedia entry puts it, “When he took office, he became the youngest judge of a court of last resort in the English-speaking world in the 20th century.”
Neely stayed on the court for 22 years and left in 1995.
Since then, he has been working in private practice at a firm bearing his name in Charleston.
“Here’s the big question: Why, at the age of 78, am I going back on the Supreme Court?: Neely asked several minutes into a telephone interview last week.
“The answer is very simple: The court system is really in a shambles.”
He means not only the spending controversy that led to three early departures but also his perception that the court takes too long to process its docket as well as his view that the court has been stacked with conservatives.
“The court in the last 10 years has not been a particularly fair court. They have really stretched the law to arrive at ridiculously conservative results,” he said. “You have to restore a certain amount of balance into the decision making process too.”
Hummel is a circuit judge in the district that includes Marshall, Wetzel and Tyler counties. The Moundsville native won a contested election for that seat in 2008 and then was uncontested for re-election in 2016.
He says that experience sets him apart in very practical ways.
“Neither one of them has ever been a trial court judge. Neither ever one of them has ever sat in a circuit court room, on the bench, and made decisions in any circuit case ever,” Hummel said in a telephone interview one evening last week.
“To make decisions about decisions, I think it brings context. I know what goes on in the courtroom, what goes on in litigation. Neither one of them has ever sat on an abuse and neglect case.”
An unprecedented political season
The coronavirus pandemic overturned every effort to get out around the state to campaign this year.
That’s particularly important in these Supreme Court races, where there will be no general election in the fall.
“It changed the game plan. We had a calendar full of spaghetti dinners and fundraisers to get around the state. It changed it to primarily social media and broadcast,” Hummel said.
“If there was any differential, getting out there with name recognition as a sitting circuit court judge, that certainly was taken away.”
But, he noted, all the candidates face the same challenge.
“They don’t have any leg up or leg down. We’re just kind of even in maneuvering this unique situation.”
Neely is admittedly not drawn to social media, but he is tech savvy enough to accept a teleconferencing invitation. The evening following his interview for this story, he planned to log into Zoom to speak with the Monongalia County GOP.
Times have changed anyway, Neely said. In earlier years, he would campaign by hitting community restaurants where he knew movers and shakers met.
“If you walked in at noon, you could lay on hands and shoot the crap and get people for you, and they’d go out and spread the word,” he said. “Nowadays, it is very hard to do any retail campaigning.
The days of retail campaigning from Kiwanas clubs to Eagles clubs are fading.
“There were all kinds of places where people congregated. People sit home with their iPhone. They’re looking at the screen. It’s hard to get through to people,” he said.
Name recognition remains important, and Neely paid for his own poll to see where his stands.
“It said I have substantial residual name recognition in West Virginia,” he said.
“We have a very old population. There’s a large number of people who actually remember me and thought well of me. There’s a general understanding out there of where I stand on things. But it has to be mobilized.”
Armstead has been running for office almost non-stop for years.
Starting in 1998, he ran every two years for the House of Delegates. Now there have been two Supreme Court races in rapid succession.
If he wins this time, there won’t be another race for 12 years.
“I do enjoy campaigning,” Armstead said, describing the importance of being out among people and hearing their concerns.
“One of the things we’ve tried to do is we want to dispel this image that the court has had in the past that it’s almost above the people. It’s their court system.
“Going to schools, civic groups, to talk about how the court functions, to invite people in to the court room, to talk about the history of the court. If I’m successful and able to be elected to a 12-year term, I still want to be involved in that outreach to the people of our state.”
Neely is up front that he has done all right in private practice.
So the most recent campaign finance reports show that he has set aside $1 million of his personal funds for the race.
He isn’t necessarily looking to empty his pockets. The money is there, he said, in case there’s an influx of political action committee against his candidacy.
“I don’t worry about my opponents coming up with funding,” Neely said. “The big jeopardy is the 527 out-of-state corporations.”
Hey guess what.
The national Republican State Leadership Committee, which works to elect conservatives, started running advertisements focusing on an incident from Neely’s past.
When he was chief justice in 1985, he was accused of firing a secretary over her refusal to baby-sit. He resigned the chief position but remained on the court.
“Dark money is a serious problem,” Neely said last week.
Armstead, although he is the incumbent, doesn’t have a lot of cash on hand for his campaign. His most recent campaign finance report said he has $151,784 for campaigning.
Compared to Neely’s personal wealth, Armstead said, “I do not have those kinds of resources to put into this campaign.”
He hopes spending won’t matter that much.
“I don’t think people are looking for who will spend the most money,” he said. “I think people are looking for who will continue the work we’ve already begun to rebuild the reputation of the court and for judges who will follow the law and the constitution and not try to make law from the bench.”
Hummel’s campaign reported having $66,428 available to spend at the end of the most recent reporting period.
He says the money doesn’t matter all that much.
Hummel is differentiated, he says, by his experience on a circuit court bench, as well as by geography. He is the only candidate north of the Kanawha Valley.
He says his work habits will be second to none.
“Nobody is going to work harder than me,” he said. “Nobody is going to be at the officer earlier or later than me. I love what I do.”
Vision for the Court
Hummel says his passion is “treatment court,” which takes the structure of West Virginia’s drug courts and emphasizes a mental health component.
“The biggest part of my platform is taking that model and taking it statewide,” Hummel said.
The addicts who wind up in the court system may commit crimes, Hummel acknowledged, but “They have underlying untreated mental health issues. They’re self-medicating.”
So a jail sentence might result from, for example, for when a defendant in the court system tests positive for fentanyl. But the goal, Hummel said, is to steer addicts toward treatment.
“If we jail ‘em, we’re going to be safe, but when they get out they’re still going to be an addict,” Hummel said. “If we can treat ‘em we’ll be a lot better state.”
Neely has focused on the court’s philosophy for reviewing lower court decisions and how quickly it turns around opinions.
Over the past decade or so, the court has guaranteed that every appeal gets some sort of review. The court selects some appeals for oral arguments whereas others are decided based on the submission of briefs.
What results might be a full opinion by members of the court or a shorter memorandum opinion.
“The court, to forestall the idiocy of an intermediate court of appeals, established this scheme to give everybody an appeal,” Neely said. “The cure was worse than the disease.”
He contends the court should be more selective of cases that would actually make a difference. Giving everything a look, he contends, spreads staff thin and results in delays.
“You need to make sure the mechanics of the courts are functioning. The biggest problem is tremendous delay in the decisions on things like motions to dismiss,” he said.
That issue resonates with lawyers who deal with the Supreme Court regularly, he suggested, but he acknowledged it might not with the rest of the voting public.
“I don’t think anything with the Supreme Court resonates with people who are voting except the promise that you’re going to take the criminals and put them in jail and never let hem out,” Neely said.
Armstead disagreed with the position that the Supreme Court takes too long.
“I don’t believe there’s a backlog of cases. Our work is getting done, and we are right in line with what the national standards are for how long it takes to hear a case and decide a case,” he said.
Armstead says it’s important for every case to have a decision based on the merits.
“He thinks we should go back to the old way,” Armstead said, referring to Neely. “Does it take a little longer to hear cases than to not hear them? Sure.
“Then that is going to take a little more time than just denying those cases. But that doesn’t take an inordinate amount of time.”
During his time on the Supreme Court, Armstead has tried to emphasize fiscal restraint, noting that last year the court system returned $10 million of excess funding. This year, he noted, the court system’s budget is $4 million less than it was 5 years ago.
He is also proud of pilot projects on family treatment courts, an effort he hopes to expand beyond its current five counties.
Family treatment courts, which occur in circuit courts, deal with abuse and neglect cases by bringing in families for regular guidance that includes counseling, family training and the involvement of the Department of Health and Human Resources.
“When it works it reunifies that family and avoids the trauma a child has to be face in being removed from their home,”Armstead said.
“I really think this is an encouraging new development in addressing abuse and neglect in our state. I think it’s important we continue to encourage programs like this and support them and expand them.”
Election Day is June 9. Early voting in person starts May 27 and goes until June 6. Expanded absentee balloting is also taking place in West Virginia this year because of the coronavirus pandemic.