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House | May 22, 2013 | Committee Room | Elections

Full MP3 Audio File

house committee on elections were, were very pleased to welcome our pages today is a endurance and Joseph Webster and I know that we repair it. we do have two more that all have their names. I apologize, but I'm very glad that you're here. thank you for your services week and of course we think our house Sergeant Armstrong Ball Grassley Mike Clampett and Logan Harris, through their work is always our staff. our thing. the members and the ball numbers from the public who are here today I realized that this was a meeting column short note on short notice. we had the chance to hear from mom time to prove his centers that I did not want to pass up a chance to get to hear from today's program will be very in for formal and that I'm going to recognize them to offer some remarks and then we welcome up the floor for whatever inquiries that you have and when that is complete we will adjourn, but some I ask you and grant permission from our guests cannot read all long ballfields. I will tell you that one of our guests is all former Justice John Mike Mc Husky, a former member of the less for GPS Supreme Court and JB month, see who is a man and a current member on the West Virginia House and were very pleased to have them with us today. I will tell you a little bit of quick bio really really about faultless will the choose us. this was actually yield way into the house while he was still in wall schools had to leave wall school in order to serve most of us come to the house. learn how to practice law when he left law school to practice making lost top over me. so with that are generally so glad that you are here today note my and I guess we, God Schiavo says will let you go first hour you to confide about that but please I please on please feel free to lot all for your remarks [SPEAKER CHANGES] , usually in an child of my son here. my wife had to sit between us but we don't have that barrier today that made us has worked all that out and we get along great. thank you very much for having us here today as West Virginia former West Virginia legislator and my son JB hasn't present West Virginia legislators. we are here to say what what West Virginia does is what North Carolina should be about wanting, and give the opportunity and have the opportunity what West Virginia has done in the area of public financing of judicial races and what it is meant to us, and just a bit of its background and then my son 's perspective is that he's in the legislature that memorialize and make permanent the public financing of of our Supreme Court races. we don't have a unlikely North Carolina. we have only one court between the trial courts and the final appeal is called the West Virginia spring court has only five members on you have both Supreme Court and a intermediate court. I opted against twenty two people total, whose who are subject to your public financing law. so, without very quick background on absent and why I think it's important for you all to two thousand nine. our governor was successful in having former Supreme Court Justice Sandra Day O'Connor, a service chair of the commission of the commission in West Virginia, which I served on to find ways to improve the need method of judicial selection and to enhance and some way, try to restore the confidence of our citizens in its judiciary. it had fallen throughout all-time low, primarily because so much money millions of dollars by both the business community as well as the plaintiffs trial bar and come into influence the elections of our Supreme Court and also circuit judges, but primarily, our Supreme Court recognizing that that hurt West Virginia is standing in this country when it's trying to attract businesses out of perception that justice was bought not not earned by being a good judge. our commission forms

...came up with several recommendations to improve things. The first, and primary one was, after hearing Judge Bryant, from your intermediate court, and other people from North Carolina, was that we adopted a public financing test pilot program, to try it out, modeled almost entirely upon your legislation that had passed a few years before that in North Carolina. So we are the model; we tested your model, and used it. In 2010 our legislature, before JB [??] was elected, passed the governor's recommendation to create a pilot program to try it out. So the first time it was tried out -- you've been doing it now for six election cycles, I think -- the only person who accepted the public financing route for one of our two Supreme Court seats won an election, with public financing, against two opponents who were, both raised over a million and a half dollars, were both very highly connected in the legal community and basically in the plaintiffs' trial law community, and this person won with public financing, and he was a virtual unknown, he'd never served in political office before, had a wonderful resume as a good judge, would be a good judge, but had no experience at all in raising money and that kind of thing that you have to do to get elected, and he won. And by the way, parenthetically, he was a Republican, which in our state -- we have about a two to one Democrat majority in our state -- however, as with many states and with North Carolina, there are a lot of conservative Democrats, and the Republican numbers are swelling. But in any event, it was still remarkable and unusual for a Republican to get elected to a full term. In fact, I don't think it had happened since the Great Depression. That's our experience with the program, and it was viewed as so successful by both the business community, as well as the plaintiffs' trial bar, that the legislature easily and fully adopted it as a permanent program this past session that was just over and JB can tell you a little bit about that bill, but nonetheless, the point is that the model for us has worked, we believe it is going to enhance the reputation of the judiciary in West Virginia and help restore our reputation as a judiciary that makes laws and decisions based on the facts and not who contributed to your campaign. And public financing of campaigns is what brought that about, and we used your model to do so. I would certainly be anxious to field any questions that you might have as to our experience in West Virginia and what it's meant to us, but that's our experience. [speaker change] Thanks. My experience is slightly different as an actual delegate who was voting on a piece of legislation to permanize this campaign finance system in West Virginia, and just to give you a little background on myself, I'm a freshman delegate, 31 years old, and I like to consider myself a pretty conservative guy, and as such, I take the First Amendment ramifications of public financing very seriously. I understand the ways in which people's money should be able to be expressive in the political arena, I believe that they should be able to do so. I also believe that there's a very big difference between a legislative election and a judicial election, and in my state, unfortunately, unlike your state, our economic climate is very, very poor. Just driving here from West Virginia you can just tell when you're leaving West Virginia and you're entering a state that enacts pro-growth, pro-business legislation, because the lights are off, the interstate's dark in West Virginia, and it's very bright here, because there's people out buying stuff, and people with businesses doing things. And one of the reasons why my state lags so far behind yours is that we have a perception of having a very unfair judiciary, and the word 'perception' is very important here, and perception plays into my decision on this issue significantly, because I don't actually believe that we have a bad judiciary in West Virginia. Contrary to what a lot of my conservative counterparts would have you believe, I believe that the judges in West Virginia do a very good job of being as fair as possible and deciding the issues based on the rule of law, but that doesn't matter. All that matters is what people think. All that matters is why people think that these judges have made these decisions, and...

And when money creeps its way into judicial elections, it doesn’t matter what side it comes from, one side is going to believe that the judge made the decision for one reason or another that wasn’t based on the actual facts of that case. It is my experience in conversing with and dealing with many of the business leaders in my state, having judiciary that is perceived to being independent will be one of the major steps in growing the economy in my state, because businesses will be much more willing to come into to a state where they believe they are going to have a predictable outcome in any kind of judicated issue, be it in front of a Business Court or the Supreme Court or the Circuit Court. And for that reason, I supported West Virginia’s making permanent of the public financing for judges. On a secondary note, as a legislator we’re tasked with taking care of the public’s money and protecting the public trust in the government. Were always going to be collecting taxes and we’re always going to have things to do for the people, and the bill that was created in my state, I found the amount of money that was going to be spent on these elections to be while a very large number, in the millions, a very large amount of money, I thought that the investment was good, because what you’re getting out of it is a system of judiciary that can be trusted by both the business community, the people of the state, and as well as, you have to remember there are a lot of criminal implications here too. Here is somebody is up on for first degree murder who certainly would like to think your judge wasn’t out campaigning potentially, when maybe they could’ve been reading a law book or maybe studying up on the ways in which a persons freedom might need to be protected under the law. So, for all of those reasons I supported the bill and I really will be more than happy to answer any of your questions, particularly coming as somebody who voted a little bit in a minority in my party for this issue back home, so thank you all very much. [Speaker Changes] I wanted to mention that there is one big difference between our legislation and yours, and the only that I know of, and that is we do publicly finance a partisan election, we are still a partisan state. Our constitution allows elections to be non-partisan for the judiciary, but it hasn’t, our legislator hasn’t and I is not likely to do so in the neat future. So, that is the difference, we have to finance the primary and the general, so your system where you have a one election and it’s non-partisan is probably a little less expensive to finance than ours. [Speaker Change] And one last comment. This is all predicated on the idea that we are working with the frame work of elected judiciary. It would probably be my hope that judges wouldn’t be elected at all, in the frame that I was working, in my state, in my legislator. The goal is to find and elect the best, fairest and smartest judges possible. I believe that allowing a public option for judges who do so goes a long way to ensuring that the judiciary is as strong as it can be. [Speaker Change] Are there any questions? [Speaker Change] Representative Iler for an inquiry. [Speaker Change] Thank you Mr. Chairman, thanks gentleman coming from West Virginia. I’m not sure who this question is for, but I noticed that the definition of success seemed to be that the gentleman won or the lady won the office. Could that be a factor in there? That the perception that he or she is more fair, because they took the public financing and the other guys were bought because they weren’t and that contributed to that person’s election or, is really successful and is really just the best judge of the group. [Speaker Change] Excellent question, certainly the goal is to get the best judges, but as we said, the perception of judiciary is also very important. We have a very little nice laboratory on this issue because it was actually two seats that were up, and so the top two won and they all ran together. And, the won that won was a very highly financed by special interest, winner, and that person is a very good judge, frankly. She was the incumbent Chief Justice too, so she had a lot going for by incumbency.

did get a lot of votes because he was perceived as being not influenced by money. I'm sure that's true. I'm not sure that's a bad thing either, but I think at least the- well one other thing, sorry Debbie. What this does when you have public financing, is it also makes the opportunity for many many people are willing to run for the office who I know if you're a politician, and I've been one, in the political arena you have to go raise money. And some people consider that unseemly who would be wonderful judges. Maybe they wouldn't be good legislators or governors, but they might well be good judges and you don't want to discourage people that really don't like that aspect of running for office, having to raise great deals of money. You want them to be in the pool, and this puts them in the pool. [SPEAKER CHANGES] Follow up, Mr. Chairman. I believe there was mention about a primary, if my recollection is correct, we have a primary to get it down to the 2 candidates without labels, and those 2 run off regardless of- there's no party, but they do run off in November, til the- we already have a primary of sorts, depending on how many are in the race. [SPEAKER CHANGES] Both are nonpartisan and and that's- and ours- that's the only difference there but yes, you have 2 cycles like we do. [SPEAKER CHANGES] So far, I'm working to improve that situation, so... [SPEAKER CHANGES] Just to answer your question real quickly, I think you can't answer it. I think honestly there are probably some people- That's an inherent problem with judicial elections. And you know, every time you vote on a bill and every time you weigh a piece of legislation, it's important to look at both sides of the issue. It's funny, we were in a meeting this morning, and somebody asked me what I thought the biggest problem with public financed judicial elections were, and my answer was it's possible that people would think that those who didn't take the money was less fair. And is that possible? Yeah, it's absolutely possible. But do I think that outweighs the benefits of having judges not out raising money and being financed with the people's money as opposed to special interest money? I don't. But I can certainly respect and understand anybody who would see that sort of issue sort of differently and come down on the other side of that argument. [SPEAKER CHANGES] ?? Follow up very quickly. Has there been any feedback or kickback or whatever about you taking my taxpayer money and giving it to people who may or may not like- the come back to- [SPEAKER CHANGES] I haven't had any feedback yet, but we just finished our session, so it's- I'm sure that I will. It's an interesting question, but the answer being the government is always going to do certain things with your money you probably don't like. And it's impossible for a legislature or a delegate to appropriate every penny that you pay in taxes to programs and issues that you agree with, but the overall goal being the fairest judiciary possible, I think you can disassociate the personalities from that goal and say that why you're really buying or what you're really paying for is a judiciary that the people can trust. And I think that that sort of transcends the personalities that might be engaged in it. And the safeguards there are in our system you have to raise, I think, $35,000 from $100 donations. So there is at least the one safeguard that that's a lot of people who have to give you a hundred bucks. Which means that you're at least mildly popular in maybe one county or something, so at least you're not a complete lunatic, and that will save the state from having to spend money on people who probably have any business being in the race. Which I think is another inherent problem that I think is solved by that. Let me add also that it is a very little bit of money, and our state, pretty conservative place both Democrat and Republican, even though it's registration wise still 2 to 1 Democrat. There would be no support for any other form of public financing. Do you think that's true, JB? [SPEAKER CHANGES] ?? [SPEAKER CHANGES] Yeah, of any other type of election. This does stand as unique, but I've heard no criticism of that, and the bill passed with good support from both Democrats, about half the Republicans voted for it also and in the Senate, I think most of them did. In any event, and so it had heavy support and I never saw any criticism of that or raising of that issue of the expense and I was kind of surprised that I didn't see it. But we didn't. [SPEAKER CHANGES] Rep. Ross,

?? [SPEAKER CHANGES]: Thank you Mr. ??. I have a couple of inquiries of that alright. Just one distinction, here in North Carolina a big of junk of the money that goes to pay for the races is not tax paid dollars, they do pay taxes, but it is an assessment on your annual bar license. So, it is really the attorneys who are paying for it, and so we have some attorneys who were not happy about it. [SPEAKER CHANGES]: You could ?? over that 50 ??. [SPEAKER CHANGES]: Right, so the idea here was that the attorneys were paying for a fairer system as opposed to being, because most of the shake down for the campaign contributions goes to the attorneys, and so the idea was that they would fund it. So, I just think it is important for the record that we are not imposing this on our tax payers as much that it's really just a small group of tax payers who use this system. It's almost like a user fee, well let's think about it that way. I had a question for you about the background as to why you had this commission set up with Justice ?? in 2009. I understand that West Virginia had a pretty controversial case that might ?? a Supreme Court where the U.S. Supreme Court said that there had been undue influence, and if you could give us a little background on that because when we pass the Judicial Public Finance it was to avoid that kind of situation, and then the threat of having that kind of situation is something that some people worry about if we get rid of Judicial Public Financing. So, if you could give us the back story as to why this became such an important in West Virginia. I think that would be helpful to the members. [SPEAKER CHANGES]: Yes, the election of the justice and he was a Republican that got elected with special interest money he would say, and he is a friend of mine, and he is a good Judge, and in fact he is an excellent Justice. An independent expenditure occurred from this ?? of several millions of dollars from a special interest fund that he set up, and of course that can't have any, the candidate can't directly be involved in that and in this case it wasn't. The main reason this co-guide did that was he totally, he tested of the guy that was running against this ??. And even there again are the perception that this Justice was bought and paid for went to the United States Supreme court because one of the decisions which this Justice did not accuse himself from was a case that involved of this ?? company that this ?? was a ??. So, that went all the way to the U.S. Supreme Court and as you know and ended up with the court saying that that does give the appearance of ??. We are not saying there was anything wrong, that that Justice did anything wrong, ?? and even to draw the expenditure made on his behalf, but the appearance was so abhorrent that he should have stepped down from that case, but that decision by the U.S. Supreme Court came before commission was formed. It came after the election and frankly this is a very, I think, an interesting point. For many years the business community was outspent by the ?? lawyers in getting they have people elected courts. This particular election was the first time where the business community had prevailed. So, that's probably what brought both sides, frankly to the table of ??. We need to do some about this whether I can outspend your side, and in meantime everybody is losing because both sides are being perceived by the public as just trying to buy influence. So, that ends your question. [SPEAKER CHANGES]: Please continue ??. [SPEAKER CHANGES]: This is a followup debate. We have public financing and almost all of our Justices use both Republic and Democrat, and so I guess part of the concern is if we got rate of the public financing and then the ?? bar was able to do tons more and we do have independent expenditures. That still happened, you can't avoid it, there is no rescue funds anymore because the Supreme Court said you can't require that, but still even in that situation most of our Judges and Justices like to use public financing and so the concern is if we don't do that anymore and there is even more of a ramp up for the ?? bar and for the business community.

Any Jeff clay we've had some more situations adequately was called Massey coal where of five people have to rescue themselves or other people try to make them work using cells and we just kind of get into a cycle, impugning people's motives rightly or wrongly SMS recall decision are just wanted to know whether there's any kind of threat to get that the public financing and then you have to read all the stops before they get into that kind of cycle where will it happen and there's a lot of talk and the legal community and West Virginia especially after the massive decision that happens after which you said a good head start becoming affected taken back to CNN as part of the decisions off like you were at Redmond City are for the fear that that would now happened to be every commerce decision were just a few someone gave them money or exceed an independent expenditure on behalf of a case of fraud may have to rescue themselves and endured down the women have five justices soaking wet one meeting is to support some (SPEAKER CHANGES) I'd think I agree with five think you're suggesting that the public financing of a void stepped back again appears in the body that is gonna happen because someone of the Massachusetts in a whale may help finance department and I am not your system were spread ½, nothing will roughly in any year comes from the assessment of lawyers and the other half comes from the attacks should share call and we'll have enlisted in our system legislative appropriation read down about $1,000,000 year but what about the day you have to use a $3.00 check off injured in $1,000,000 a year that means 300,000 people are actually have actually make a conscious decision not one CS system work as a majority population growth potential of people and I think that reflects well on the pundits of popularity that you get that much from access of your further inquiries for years that are levied on thank you both so very much four to come. (SPEAKER CHANGES) I don't recall, members were able to 10, I'm certain that this issue will be discussed of more a solution and soul of wit said if there is no firmer business for committing the distinction of ??....