APPOINTMENT OF SUBSTITUTE JUSTICES,
THE PROVERBIAL WRECK LOOKING FOR A PLACE TO HAPPEN

By H. John Rogers, Esquire

"The only thing I did wrong/I stayed in Mississippi/One day too long." - Bob Dylan

When a justice of the Supreme Court of Appeals is disqualified --- either sua sponte or as a result of a motion filed by one of the parties --- Rule 29 (g) provides that the chief justice (or acting chief justice) shall assign "a senior justice, senior judge, or circuit judge"to serve for the recused justice. In most cases, the vast discretion (comparable, say, to that of an Oriental potentate) vested in the chief justice by this rule does not cause anyone much distress.
Currently, as even nominal court-watchers know, our Supreme Court of Appeals is deeply divided with 3-2 vote being far more frequent with this array than they have been for most of our history. Not infrequently, it is the substitute justices, voting with the chief, who constitute the majority. Thus, under this rule, as a de facto matter the chiefjustice is given a second, and occasionally a third vote.

This situation was highlighted during the current term in both the DiTrapano challenge to the Kiss appointment and in the Carenbauer lawsuit to estop the perceived "over-reaching" of Justice McGraw. In both cases, the substitute justices provided the decisional margins of 3-2 and 4-1. Also, it is far from clear as to whether the substitute justices voted in the fashion that the duty elected jurists would have, which raises a problem of Democratic theory.

However, this procedure, arbitrary as it is, is not necessarily a bad thing if one adopts former Justice Neely's, received dictum, as set forth in Ho-w Courts Govern America: "In W. Va., everything is political except politics, and politics is purely personal."

One might say that this is just how things are done in W. Va. On those few occasions when I have had some "plums" to distribute, I would pass them out to those who were personally or ideologically simpatico. After all, in the final analysis, the Kiss and McGraw cases were resolved by the laws of karma, basically negating one another. No big deal, right? "Home Cookin"' regularly produces the soup de jour in the W. Va. courts. ("It's better to know the judge than the law" is a familiar maxim), so why should the Supreme Court of Appeals be different?

Then I read about the scandal that has recently engulfed the Supreme Court of New Hampshire, which has an appointment system nearly identical to the one employed by our Supreme Court. f called a research service in Concord to obtain copies of the relevant documents; the investigator volunteered that the court there was in "total disarray".

The documents demonstrated that the man had not overstated the situation: One justice had resigned; the Attorney General was investigating the court for possible conspiracy charges; the legislature was talking impeachment; and two disgruntled litigants --- fon-ner spouses ofjustices--- were threatening a federal lawsuit, contending that through appointments and lobbying sitting justices their husbands had effected highly favorable decisions.

As I leafed through these papers, I realized that I too "had stayed in Mississippi one day too long." A too-long, too-close communion with W. Va. Law had blinded me to a system that had all of the potential for abuse and implosition as did that employed by New Hampshire's high court.

First of all, no one could seriously defend a system that allowed the chief justice to select anyone - absolutely anyone - who was or who had ever been a judge to serve as substitute justice. With no written rules, guidelines, or standards, Rule 29 is on its face arbitrary and capricious, and, perhaps more important, a New Hampshire-style wreck is just waiting to happen. As far as I can determine, a sitting justice has never gotten divorced, but look at the acrimony Truman Chafin's divorce produced. That would be small potatoes compared, say, to a Palimony suit by a law clerk.

Secondly, Canon 2 says that a judge shall avoid "the appearance of impropriety" in all the judge's activities. Consequently, it is largely irrelevant as to whether Chief Justice Starcher actually stacked the deck in the Kiss case, or whether Chief Justice Maynard did the same in the McGraw case. The question is only whether a reasonably prudent person would think they did, or whether the litigants believed that the panel would give them a fair hearing.

Since the gamet of judicial choices available to Chief Justice under Rule 29 normally range from the tepidity liberal to somewhat the right of Genghis Khan, it would seem to be systemically impossible for a chief justice in making an appointment to avoid the appearance of favoring one side or the other. (A good parlor game for attorneys would be to pick the five replacement judges who would cause them to commit harikari.)
Unfortunately, there is a very simple way to correct this situation and to make our procedures immune to a New Hampshire-style challenged: Put all of the eligible judges' names in the proverbial hat. Let the Rota Fortuna the hand winnowing of the chief justice, eliminating the "personal touch" that makes the present system objectionable.

We once had something called a "blue ribbon jury" in W. Va., where the members were personally selected by a single jurist. The rationale was that high-class people personally selected by the 'udge would produce a better result. The last vestige of this system ended some 25 years ago when the federal courts abolished the so-called "key-man system" for selecting petit jurors. This is consonant with our proud boast that we are a government of laws and not of men. ("People is, of course politically correct here, but sounds a little strange to my chauvinistic ear.)

If it is improper for me to be tried before a juror hand-picked by a judge, why is it proper for my appeal to be heard but by a judicial substitute whose only claim to legitimacy is selection by the Chief Justice?
This certainly smacks of the old "key-man system". It can also be the crassest of cronyism. More sinister, it can be part of a scheme to influence the result. According to one circuit judge, a chief justice in years past would call prospective appointees and pose "hypothetical" questions.

The positive side to this is since there are no rules with regard to these appointments; a a given chief justice can establish whatever system the justice desires. For example, Chief Justice Maynard could simply announce that he is going to establish a panel of substitute justices and administer it like he did the jury system back in Williamson.

Successor chief justices would not, of course, be bound to follow the "Maynard system", since they could announce, I shall pick the replacements by my own lights. However, at this point, the hue and cry should go up. No one, litigant or lawyer would probably favor a return to arbitrary selections.

In conclusion, I would point out that I favor the election of judges and on a partisan basis. That's politics out-front where everyone can see it. This article is addressed to the backroom politics, that never sees the light of day. This is a part of life, but we should, at all cost, seek to minimize this and avoid the unseen-dy sort of results that occurred in New Hampshire when the personal and the political became one and the same.

About the Author

Mr. Rogers is an attorney from New Martinsville and a member of the Board of Governors.