by Ron Gregory
CHARLESTON — In a case with more bizarre twists and turns than an Ellery Queen mystery, a Kanawha County Circuit Judge has overturned an agency decision to grant public financing to the re-election campaign of Supreme Court Justice Brent Benjamin.
Chief Judge Tod Kaufman entered his order Friday in a case filed by another Supreme Court candidate, Beth Walker. Kaufman ruled that the State Elections Commission had erred in granting Benjamin’s request for public financing.
Among the major issues was whether or not “live signatures” are required of those making campaign contributions that would qualify a candidate for public financing. Kaufman, on his decision, ruled that statutory language is clear in requiring valid signatures of contributors so that the names can be verified.
Earlier, it had been determined that a significant number of Benjamin’s contributors had given by email with no signatures required.
Walker filed suit after the SEC ruled in Benjamin’s favor. She named Secretary of State Natalie Tennant as well as Gary Collias and Vincent Cardi of the SEC as defendants along with Benjamin.
Benjamin sought public financing under what is known as the Public Campaign Financing Program administered by the SEC. Kaufman noted that the purpose of the program is to attempt to provide a more level financial playing field for those seeking office.
In order to receive public financing, the Judge wrote, a candidate must gather 500 donations, from $1 to $100, from qualified West Virginia voters.
On February 10, the SEC ruled that Benjamin had met the requirements. On February 16, Walker sued. In the proceedings before Kaufman, Benjamin was represented by Jonathan Marshall of the Bailey and Glasser Law Firm of Charleston. Walker was represented by Thomas Ryan of K and L Gates of Pittsburgh, Pennsylvania.
Benjamin certified to the SEC that he received 583 separate contributions totaling $41,511. The deadline for submissions was February 2 and the information was emailed to the SEC at 5:09 that day. Benjamin’s sworn statement said he had fully complied with the provisions of law.
Originally, Walker challenged 154 of the contributions as containing no signatures. Later, the number increased by 365. Benjamin eventually admitted he had not filed a proper exploratory income report and narrowed the number of names he was claiming but said they still exceeded the required 500.
The SEC convened to consider Benjamin’s public financing request and eventually, on the first day of hearings, removed names where there was no signature. But, after some sort of “ruling” allegedly made by the Secretary of State on the evening of February 3, the SEC was instructed to ignore the requirement for “live” signatures.
Convening the next day, the SEC rescinded its actions the previous day and refused to even consider Walker’s challenge of the 365 additional contributions that contained no written signature.
On February 5, the Secretary of State’s office certified to the SEC that 512 valid contributions had been received by Benjamin, thus meeting the 500 threshold. On February 10, the SEC approved Benjamin’s request and on February 16, Walker filed her suit.
During the period of the dispute, Benjamin filed and refiled multiple required reports, sometimes characterizing them as “amended.”
In his ruling, Kaufman said the law is very clear and Benjamin had not met the requirements. He said the SEC’s decision clearly prejudiced Walker’s financial standing and he reversed it.
In a post-decision comment, Benjamin indicated he is likely to appeal Kaufman’s decision. That would create an even more interesting scenario since the matter would be appealed to the Supreme Court.
Since Benjamin is currently a member of the high court, it is generally assumed that he and his colleagues would all recuse themselves from hearing the appeal.
Both Walker and Benjamin, who ran previously for the court as Republicans, are involved in a five-way non-partisan race this time. The West Virginia Legislature changed judge elections to non-partisan earlier. It had always been assumed, by political pundits, that Benjamin and Walker would essentially split Republican voters. Democrats in the race are former Attorney General/Supreme Court Justice Darrell McGraw, attorney William Wooton and attorney Wayne King.
With the division created between Walker and Benjamin, many pundits expect McGraw to return to the court following the May election.