The third seat up for election for West Virginia’s Supreme Court this year is a remaining strand from a court crisis two years ago.
The seat represents the four years remaining on the term of former Justice Allen Loughry, who was impeached, resigned and convicted of federal fraud charges.
One of the candidates for the Division 3 term was so disgusted by the court two years ago that he ran for one of the seats vacated by justices Menis Ketchum and Robin Davis, who also resigned.
“The first time I ran, I was upset, I guess as everybody was with the disrespect for taxpayer dollars,” lawyer William Schwartz said last week.
Now Schwartz is running again.
“The reason I came back was, I didn’t feel my job was finished as far as making my statement and what I hope was a positive change for our court,” Schwartz said last week.
Another candidate, John Hutchison, is a longtime circuit judge who was appointed to serve in the vacated seat. Hutchison has served as an appointee for the past 18 months, but the position goes to the voters now that the election cycle has arrived.
“I, along with the folks I have been working with the last 18 months, have been working diligently to get the message out that we’re a different court now,” Hutchison said.
“We’re new, we understand the mistakes made by our predecessors and we’re not going to make them.”
Another candidate, Lora Dyer, also says she wants to help solidify public confidence in the Supreme Court. Dyer is a judge who currently presides in a circuit that includes Jackson, Calhoun, Mason and Roane counties.
“In light of all the very horrible things that happened to the court, people are paying closer attention than what they might have been,” Dyer said.
With three Supreme Court seats on ballots, Dyer said she opted to run for this one because the incumbent is an appointee.
“It was just the people haven’t picked somebody yet. And I’d like for them to pick me,” she said.
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The candidates
Dyer was elected as a circuit judge in the area surrounding Ripley in 2016. Before she was elected to that role, Dyer was one of the top lawyers in the state Auditor’s office.
That experience, she said, gave her an overview of the ins and outs of state government.
Like most circuit judges, Dyer sees a lot of family issues, including cases involving the abuse and neglect of children. She wants to make that a continued focus if she is elected to the Supreme Court.
“The most rewarding thing is when families come in to that environment in abuse and neglect and they’re able to resolve that issue. Every child I’ve ever sat and talked to loves their parents,” Dyer said.
Much of the Supreme Court’s workload also involves the appeals of family disputes. Those aren’t often the cases that draw public attention or news coverage, but Dyer reminds herself how important they are to the participants. She keeps a sticky note behind the bench that says “this is the most important case you’re going to hear today.”
“For every party coming into the court, it is,” she said.
Schwartz is a longtime Charleston trial lawyer and business owner. He says those experiences give him unique perspective as a candidate.
“Some people when they spend an entire career on taxpayer dollars and everyone calls you ‘your honor’ and you’re wearing a black rob, that may cause you to lose perspective. So maybe this time, we pick a taxpayer,” Schwartz said.
“I’m also a businessman. I pay quarterly taxes. Maybe we need a taxpayer among the robes. I think I bring a unique perspective to the court that doesn’t exist right now.”
Schwartz says he wants to assure resources are aimed toward the opioid crisis, family court judges and circuit court judges.
“I believe our resources have to be focused on the front line. That’s where I would focus my energy. Certainly the last on any list would be whatever my carpet is or my couch is,” he said, making reference to Loughry’s spending scandal.
Schwartz was not only upset by the misspending allegations that rocked the court in 2018 but also the way impeachment was handled in the House of Delegates.
The third part of that process, the appointments of three justices by Gov. Jim Justice, also troubled him.
“I’ve got nothing personal against any of these justices. I don’t think they’re bad people. I didn’t like the process. Justice Hutchison is part of that process,” Schwartz said.
“The governor can appoint his friends if he wants to. It’s just that Justice Hutchison is part of that process. He deserves to try to win. I deserve to try to win too.”
Hutchison has spent 25 years as a judge, first appointed to the bench in Raleigh County in 1995, winning election to the seat the following year and then serving in that role until 2018 when he was vetted and then appointed by Justice, a Raleigh County native.
“May 20 was the 40th anniversary of when I stood before the court and swore to be a good lawyer. I’ve got an extensive career in the legal system, both as a practicing lawyer and as a judge and now as a Supreme Court justice,” he said this past week.
When he was being considered for the Supreme Court, Hutchison worked on an estimate of how many cases he had overseen as a circuit judge and came up with 22,500, about 900 a year.
Now, he says, he has a good start on the workings of the Supreme Court.
“I’ve been on the Supreme Court bench now for 18 months, and I have an excellent idea of how the court works. I have an idea of the problems we’ve been working through,” he said.
Part of that has been regaining the trust and calm of the broader West Virginia judiciary.
“During that period of time, it was kind of like a turtle. Everybody’s head got down in their shell. They didn’t want to get out front,” he said.
The current version of the Supreme Court is trying now to make progress on a long-conceived electronic filing system for cases around the state, expanding drug treatment courts and embracing family treatment courts while continuing to prove the court system’s fiscal house is in order.
“We needed to get settled down, have a five-member court and start concentrating on dong the work of the court,” Hutchison said. “I’m happy to say I believe that has happened. We’re not dealing with political issues. We’re trying to deal with the issues before the court.”
Right to work
The most controversial issue to hit during Hutchison’s relatively brief time on the court has been a state law that made West Virginia a right to work state.
West Virginia’s labor unions contended the law constituted an illegal taking by employees who would benefit from union representation without paying for it.
The case wound its way to the Supreme Court at the start of this year. A few weeks ago, justices upheld the law with Hutchison issuing a concurring opinion, which meant that he agreed with the basic ruling but had more that he wanted to say.
Hutchison described his admiration for how the labor movement has shaped workplaces, but concluded he could not diverge from the majority’s legal conclusion.
“No other court in America has found a right-to-work legislative enactment unconstitutional, and the majority opinion has done nothing different,” Hutchison wrote.
That resulted in a major political complication.
Hutchison had already been endorsed by a range of groups, including political action committees of the Chamber of Commerce, representing business, and the AFL-CIO, representing labor unions.
Within a day, the AFL-CIO and other labor unions rescinded their endorsements.
This week, Hutchison said he knew the political risk but his role as a justice meant he had to set that aside.
“I made a pledge when I took my oath to uphold the constitution of the state of West Virginia. That oath requires me to make decisions and not prejudge cases and not judge cases based on partisan or political considerations,” Hutchison said.
“It came up politically. It came up at a bad time for me.”
The easier political path, he said, would have been deciding the issue the other way. But he concluded that he couldn’t issue a ruling out of political expediency because that conclusion wouldn’t reflect the law.
“I can’t do that and uphold my oath to administer the law of the state of West Virginia,” he said. “I have to remain as independent as I possibly can and make my decision based solely on the law of the constitution and the state of West Virginia. If, in doing that, adverse things happen from a political viewpoint they just have to happen.”
Schwartz said he would also have to rule according to what the law says, even if that would differ with his personal view.
“I believe Justice Hutchison had a legal basis to rule as he did. It is not an irrational ruling he made. I think he carefully drafted his opinion to say how important the unions are, but he had to rule against them. As a lawyer, I have to respect that position,” Schwartz said.
Schwartz said he sympathizes with the union position and would not have supported right to work if he were, instead, running for a legislative seat.
“As a judge, I fully understand how he came to the decision he did. I know it was a hard call for him,” Schwartz said. “Sometime in the future, the union may very well bring a different approach. I can’t predict how I would rule.”
Dyer didn’t directly address the ruling, but instead told a story about how her view of a judge’s role was shaped.
She was working for then-Kanawha Circuit Judge James Stucky while he was overseeing a case about the legality of the City of Charleston’s controversial user fee that is charged to people who work in the city whether they live there or not.
Dyer said the judge told her, “You know, this job comes down to that. You’re having to make really important decisions that affect different people. If you have any trepidation about doing that and applying the law, you have no business being a judge.’
“That would be my statement on that sort of thing.”
Election Day is June 9. Early voting in person started May 27 and goes until June 6. Expanded absentee balloting is also taking place in West Virginia this year because of the coronavirus pandemic.