Former U.S. Supreme Court Justice Sandra Day O'Connor chats with retired Kanawha Circuit Judge A. Andrew MacQueen prior to the Independent Commission on Judicial Reform, on which they both serve, began its second public hearing at the West Virginia University College on Law on Sept. 21. (Photo by Lawrence Smith)

Charleston attorney Carte Goodwin, chairman of the Independent Commission on Judicial Reform, introduces the Commission's honorary chairwoman, former U.S. Supreme Court Justice Sandra Day O'Connor during the Commission's second public hearing at the West Virginia University College on Law on Sept. 21. (Photo by Lawrence Smith)

MORGANTOWN - A panel appointed by Gov. Joe Manchin to study potential changes to the state's judicial system held its second in a series of public hearings last week at West Virginia University's College of Law which included the participation of the panel's honorary chairwoman, former U.S. Supreme Court Justice Sandra Day O'Connor.

The Independent Commission on Judicial Reform centered its Sept. 21 meeting on the topic of judicial selection. During the seven-hour long meeting held in the Marilyn Lugar Courtroom, the panel heard from a variety of speakers, including judges, professors and attorneys on the pros and cons of keeping the current manner in which judges are selected by popular election, or changing to some sort of merit-based system.

O'Connor said her home state of Arizona, prior to gaining statehood has grappled with the question on how to maintain an independent judiciary.

According to O'Connor, then-President Theodore Roosevelt refused to grant Arizona statehood due to a provision in the proposed constitution that allowed for the recall of judges. Though it was taken out, after statehood was granted in 1912 under Roosevelt's successor William Howard Taft, "within a week the voters reinstated it," O'Connor said.

Sixty years later, O'Connor would have a hand in reshaping the Copper State's judiciary. Though she did not elaborate, O'Connor said after an "ugly situation" studying judicial selection while serving in the state senate, a referendum was given to Arizona voters in 1975 on whether to allow for system of appointing judges to the appellate courts modeled after the federal system.

That was the same year she stepped down as senate majority leader to run for superior court judge in Maricopa County where the state capital Phoenix is located. According to O'Conner, the referendum passed by a narrow margin.

O'Connor later benefited from the new system when she was appointed by then-Gov. Bruce Babbitt in 1979 to the Arizona Court of Appeals. She served there for two years before then-President Ronald Reagan appointed her to the U.S. Supreme Court, making her the first woman in U.S. history to serve as an associate justice.

In 2006, O'Connor resigned as justice citing, among other things, a desire to spend more time with her husband, John Jay O'Connor, who has been battling with Alzheimer's Disease.

In her opinion, O'Connor, 79, said a merit-based, appointive system is the preferred way to get "qualified, independent, competent" judges on the bench.

"What's important to me is what the framers had in mind when they met in Philadelphia," she said. "It's been a pretty good system."

Among those who concurred with O'Connor was Laura Denvir Stith, a judge on the Missouri Supreme Court. She detailed the origins of the state's merit-based non-partisan court plan that combines an system of appointments, and retention elections.

According to Stith, political bosses controlling the election of judges in Missouri's larger cities, especially Kansas City, became increasingly problematic in the 1930s. The problem reached its zenith when in 1938, Tom Pendergrast, who controlled Kansas City political machine, publicly vowed to ruin one of his hand-picked judges when the judge ruled against him in an insurance case.

In 1940, voters approved an initiative creating a non-partisan system of judicial selection of judges.

The new system created a seven-member panel that includes the chief justice, three attorneys elected by the Missouri Bar, and three laypeople appointed by the governor to make recommendations on judicial appointments. After the judge has served a year in office, he or she must seek retention in the next general election on a non-partisan ballot.

Initially, the plan applied to judges on the court of appeals, the supreme court, and those in the larger metropolitan areas such as Kansas City and St. Louis. According to Stith, judges at trial court-level and below are still elected, though the Missouri Constitution allows counties to opt into the appointive system.

The Missouri plan, all but eliminates the influence of money on the judiciary, she said. Though at times independent political expenditures are made during a retention election, Stith said they've had, little, if any, impact.

"I've never had to raise dime, hold a fundraiser or make a campaign promise," she said. "The only promise I've made is the constitutions of the United States and Missouri."

Taking an opposite view was Chris W. Bonneau, a professor of political science at the University of Pittsburgh, and author of "In Defense of Judicial Elections." According to Bonneau, campaign spending is "meaningful queue" to voters, and an indication that there's a competitive race taking place.

"The more campaign spending, the more participation you have in a judicial election," he said.

Bonneau cited last year's Democratic primary. Had then-Justice Spike Maynard, who was serving that year as chief justice by rotation, was facing a retention election, he might have still won despite the pictures that surfaced of he and Massey Energy CEO Don Blankenship vacationing together in the French Riviera.

The downside to retention elections is that people won't know the defeated judge's replacement if the voter's reject his or her retention.

"Retention elections are elections in name only," Bonneau said. "In practice, people don't lose retention elections."

The Commission also heard from Del. John Doyle, D-Jefferson, who said something needs to be done to eliminate the "psychology of partisanship" in the judicial system.

"I think anything that we can pick now will be better then what we're doing now," he said. "It's the classic smell-test. It doesn't pass it."

Some proposals Doyle believed should be considered is enlarging the Supreme Court to seven members to include a strong chief justice, and leave a seat vacant instead of elevating a circuit judge to hear a case, should the justice have to recuse him or herself. Also, Doyle believes any judicial election should be held during a mid-term, and the power to set the judicial budget should be restored to the legislature.

Currently, he said West Virginia is the only state where, with the exception of salaries, the legislature does not have a say in the judiciary's budget.

One topic that surfaced during the meeting was intermediate appellate courts. Most, if not all, the speakers favored the idea though they disagreed slightly on whether there should be one court of general jurisdiction, or several with limited jurisdiction to areas such as workers' compensation, criminal, civil, etc.

On that topic, Steve Canterbury, the Court's administrator, told the panel to "stay tuned" as the Court would probably be offering an official position. For now, like with any proposed changes to the way judicial elections are financed, he said the Court takes no official position on judicial elections.

Canterbury noted that the creation of an intermediate appellate system in West Virginia will not come cheap. After doing some preliminary number crunching, Canterbury said just the salaries alone for the judges and their staffs for three limited-jurisdiction appellate courts would be $16 million.

The topic of intermediate appellate courts, as part of a broader overview of the state's judicial structure, will be discussed more in depth during the Commission's next public hearing on Tuesday, Sept. 29. The meeting will take place at the Senate Judiciary Committee hearing room at the state Capitol.

The Commission is scheduled to release its report to Manchin by Nov. 15.