The state Senate gathers today for a pretrial hearing on the impeachment of the remaining members of the Supreme Court.
We’ll provide updates here:
3:36 p.m. Cliff’s Notes on the unexpected turn of events this afternoon:
The settlement involving justices Walker and Workman was presented as a resolution. Senate Majority Leader Ryan Ferns, R-Ohio, called a point of order, saying it concluded guilt or innocence with no evidence having been entered.
After a huddle up front, Senate President Carmichael agreed.
So that was that, and down went the resolution. Trial dates for all of the justices, including the now-retired Robin Davis, then were set. A resolution presented by Senate Judiciary Chairman Charles Trump to remove the articles against Davis was voted down 15-19.
House Judiciary Chairman John Shott, who essentially leads the prosecution, apologized for the time taken up this morning on the resolution to remove the articles on Workman and Walker. “It wasn’t our intention to waste anybody’s time.”
Shott said he thought the procedure the House managers were following was proper. He alludes to a meeting yesterday with Senate representatives that led him to believe that was the case.
I ran out into the hallway to ask Shott if he had any further comment. He politely shook his head no and kept on walking.
3:29 p.m. We’re adjourning until Oct. 1, which is the first trial, involving Justice Walker.
3:25 p.m. Senators considered and then rejected a motion to remove Justice Robin Davis, who has retired, from the impeachment trials.
The motion was rejected on a 15-19 vote.
Senate Judiciary Chairman Trump made the motion via Rule 13 to dismiss the articles against Justice Davis.
Trump says, “Former Justice Davis no longer qualifies among the definition of persons who may be impeached.” That’s because she is no longer an officer of the state, as defined by those who may be subject to impeachment in the state Constitution.
“Under the circumstances, the question is rendered largely moot,” says Trump, R-Morgan. “I would urge my colleagues in the Senate there is no purpose in proceeding with articles of impeachment on Justice Davis.”
Senator Robert Karnes, R-Upshur, wonders if Davis could be considered a senior status judge.
One of the articles naming Davis involves justices signing off on a policy skirting the law on caps on payments to senior status judges as they substitute on open benches around the state.
Karnes is making that connection, plus saying Davis could still be considered a state official subject to impeachment if she is, herself, considered a senior status judge.
Senator Mike Romano is now agreeing with Trump. He says Justice Ketchum faced no impeachment because he resigned, so Davis should be treated similarly.
Senator Craig Blair, R-Berkeley, says a Senate trial would give Justice Davis an opportunity to clear her name. He also says this will render judgment on Davis’s ability to collect on her pension.
“Let’s move forward with it,” Blair says.
Senator Roman Prezioso, D-Marion, points to precedent about not going through with impeachment trials after the public official has resigned. Treasurer A. James Manchin, for example.
2:58 p.m. Now we’re dissolving again into the court of impeachment. Judge Farrell has taken his place at the front and Senate President Carmichael is now at a seat among the rest of the senators.
In come the delegates who are serving as managers, plus the lawyers for the justices and Justice Loughry himself.
Trial date now being set for Justice Walker — 9 a.m. Oct. 1, which is a Monday. That’s the day before Justice Loughry’s federal trial is to begin.
Justice Workman’s Senate trial is being set for two weeks after that. Lawyers for both Walker and Workman have denied the articles against them.
Loughry’s trial is set for 9 a.m. Nov. 12, right after Election Day.
Justice Davis’s attorney says she also denies the charges. Her trial is set for Oct. 29.
2:52 p.m. The Senate is bringing up the resolution that would censure justices Walker and Workman. Senate Majority Leader Ryan Ferns, R-Ohio, questions considering a resolution presupposing any innocence or guilt without having heard evidence.
Gathering up front pic.twitter.com/taNXS7SX0s
— Brad McElhinny (@BradMcElhinny) September 11, 2018
Senate President Carmichael agrees the resolution on censuring is out of order.
2:38 p.m. We’re starting to gather, and senators will be deciding whether to accept the settlement proposal that was introduced this morning — whether to censure justices Margaret Workman and Beth Walker, rather than moving forward with impeachment trials.
That proposal deals only with those two justices. Senators will still need to set an impeachment trial date for suspended Justice Allen Loughry, who faces two dozen federal charges. And they’ll need to decide whether or not to move forward with an impeachment trial for former Justice Robin Davis, who announced her resignation the day after the House voted on impeachment articles.
1:55 p.m. Here’s the text of what House Judiciary Chairman John Shott had to say as he was introducing a settlement agreement pertaining to justices Walker and Workman.
Those of you who have been involved in litigation before know that at least most of the time, probably 90 percent of the time the parties discuss a resolution that’s short of a full-fledged trial and resolution through that trial. This obviously is not typical litigation. It’s neither criminal nor civil, but in a sense it is political litigation.
We have, in fact, engaged in certain discussions. But as a predicate for that, we have to ask ourselves what our goal is as the House in passing these articles of impeachment. That’s the first and most important question we ask whenever we enter any type of negotiation and I think what any party in litigation focuses on — what they hope to accomplish.
Let me make this perfectly clear: In spite of any allegations to the contrary, this has never been an effort to remove, replace all five justices of our Supreme Court. That’s never been the focus, it’s never our intent and it’s not our intent here today. It’s not our intent to clean house, to hurt anyone in particular or to settle old scores. It’s not intended to cripple or paralyze our judicial system or in any way make it subordinate to any of the other two branches of government.
We, in the House, entrusted the first steps of the impeachment process to the Judiciary Committee, and I can assure you that our Judiciary Committee acknowledges and honors the separation of powers doctrine that’s so important to our system of checks and balances. We acknowledge that the branches are separate and equal, but they also are accountable. And the process in the Constitution for holding the Judiciary branch, the only process, is the impeachment process.
Our goal was triggered by the outcry of the public when certain allegations of excessive and unjustifiable spending were made public by the media. That was our initial goal was to first of all, determine the facts, create some accountability but more importantly to begin the process of rebuilding the trust in our judiciary that’s so critical to the operation of this system of government. It is fundamental that people have trust in the judiciary for the rule of law to be applicable.
What we discovered during the course of our investigation, the course of the proceedings in the Judiciary Committee was a lot of the issues that had been raised were the result of a lack of appropriate policies or any policies at all. In many cases, that lack of policies was an invitation to push the boundaries. It was an invitation in some instances to actually exploit the lack of any boundaries.
It was, in fact, evidence of some misplaced trust or faith in the ability of a person to restrain themselves when nobody’s available to hold them accountable. The absence of appropriate policies is at the heart of one of the articles that will be before you, and that’s Article 14. Most of the other articles, in fact, with only one exception address one specific instance of what we consider to be misconduct that would justify a removal from office under our Constitution.
Article 14 is different. Article 14 basically accuses all of the justices of failure to enact appropriate policies that would in fact have prevented the abuses that have been discovered during this process. It is, however, the most complicated of the articles. It involves having to establish what policies were not in place, what policies should have been in place, what the effect of those policies were, what the effect would have been had they been in place and what the absence of those policies, what problems were created by the absence of those policies.
It also involves what I consider to be extensive evidentiary needs. We have identified on our side at least 30 witnesses that would need to be called. We’ve been told there may be as many as 60 witnesses on the other side, voluminous documentation. We’ve developed exhibits that exceed 100. We’ve also been provided with over 50,000 documents by the opposing parties that we are attempting to sift through. It’s going to create, because of the Senate rules, we will have to try that particular article four different times in this process — the same article four different times.
What it means is, of those witnesses that we call — and that includes court personnel, current court personnel, past court personnel, some judiciary officials, members of the public and the business community — we will be calling them and recalling them and recalling them, to great inconvenience and an extraordinary amount of time. We have predicted that just to put on the case of the managers will probably take a minimum of three days, probably more like five to six days, and that does not take into account the time that’s going to be involved for the other side to put on their case.
So tremendous inconvenience to those people that will be necessary, but it will be necessary to call them. There will be numerous motions that would be heard. We’ve been told that they would probably exceed a dozen, and so what we’re talking about is a tremendous investment of time. So any time you’re in litigation where you know there’s going to be a tremendous investment of time it makes sense to look at other options.
One of the challenges that faced us as a House and as managers was the disparity in responsibility or culpability of the various justices — not to suggest that any one is blameless but that there are extremes of culpability on one end as opposed to less culpability on the other. So what we attempted to do was identify the areas where we thought the least culpable individuals were involved.
If you’ve had an opportunity today to review the articles themselves you’ll know there are more articles against certain justices than others, although Article 14 does include all four justices and, therefore, would have to be litigated with respect to each one of those separately. Based on the votes in the House, it’s pretty clear that the overwhelming sentiment in the House is there’s one party who is most culpable, and our primary goal is to make sure that person is held accountable for that culpability.
We have had discussions with Justice Workman, Justice Walker, who are also included in Article 14 but who we believe are less culpable — not blameless, as I indicated, but less culpable. And we have reached an agreement that we think will address the goals the House laid out when we undertook this process. Basically, those goals, as I indicated — accountability, but a foundation to rebuild public trust in the judicial branch, as I said so indispensable to the operation of our system of government.
The agreement we’ve reached is 1) an acceptance and acknowledgement of the problems that we’ve identified 2) an acceptance of responsibility by the two justices for their role in those issues identified in Article 14 3) a commitment — and this is important — a commitment to continue the processes and policies that they’ve been in the process of implementing in the last few months that will address and hopefully eliminate future recurrences of the problems that we’ve identified, extremely important component of the agreement that we’ve reached.
It also — and I think this is important too — allows some continuity in the operation of the court system, and as you all know the Supreme Court operates the entire court system throughout the state. Critically important that we maintain some degree of continuity for that whole system to work. This would allow continuity and also allow the continuation of the efforts that have already been underway — which I know will be described to you later by some of the other counsel — the efforts that are already under way to address some of these issues and would allow those efforts to continue.
It also addresses the need for continuing oversight and transparency by the Legislature over the judicial branch. And as we all know here today, overwhelmingly both bodies of the Legislature passed legislation that would put on the ballot in the fall a constitutional amendment that would, for the first time, allow the Legislature to have oversight of the budget of the judiciary. That, coupled with the efforts that are already under way to create policies to prevent these abuses from occurring and hopefully continued media oversight — which I think we need to extend credit to the media for first revealing a problem that we as a Legislature had no means of discovering — so we believe that’s an important component of this.
Yes, I know that recommending the stipulation that will be read to you by the parties includes all of those components, which we think addresses the goals the House established when we set out on this course. This would also involve the approval of a censure resolution, which we have drafted, which we would hope you would consider. If that resolution is adopted then after an adjournment of the court of impeachment then we would return and dismiss the articles as to these particular two justices. We would then focus our attention on the remaining justices.
We believe this is a fair settlement. We believe it is necessary to allow the House managers to focus on where the House has basically directed us to focus our attention. We believe it will not only serve the interest of the House and satisfy the goals we set out, but we believe it will be a good first step to rebuilding the trust that we think is incredibly necessary in our judiciary system. We strongly urge you to give it favorable consideration. It will, in fact, satisfy the concerns of the House managers as we were tasked to lead this effort. And we believe it’s a fair and adequate settlement.
I understand and I’m going to acknowledge that at times a whole range of emotions have been triggered by our investigation and by the reaction of the public to what we’ve discovered and what the media disclosed. Those emotions have gone from simple disappointment to outrage and anger, but as the managers we have been focused on not obscuring our goals by the feelings we have connected to this unfortunate event. I’ve said from the get-go that this is not only sad but there are no winners. There will be and there are no winners in this procedure. To the extent that the trust of the public in our judicial system is undermined we all lose.
It’s in all of our interest for the steps to begin to rebuild that confidence. We believe this is a good first step. We urge your adoption of it without any hesitation. As you may or may not know, the managers in the House were appointed to be apportionately representing the minority and majority party, and this has been the combined efforts of all the managers to reach this settlement.
12:27 p.m. The court of impeachment is adjourning until 2:30 p.m. It will be considering the proposed settlement agreement to censure justices Workman and Walker, rather than going through a trial and potentially removing them from office.
To recap, essentially prosecution (House managers) presented a settlement offer. Lawyers for justices Walker and Workman have agreed.
So it’s not a totally done deal but seems highly likely to be accepted once senators return.
I asked House Judiciary Chairman JohnShott and Workman counsel Ben Bailey for comment. Both politely declined, saying it’s not the right moment, with senators still considering.
Impeachment charges still stand against Justice Loughry, who is here today. In fact, Chairman Shott says focusing on Loughry is a major reason for the proposed settlement.
Impeachment articles remain in place on retired Justice Davis too
Here is a copy of the proposed settlement agreement.
Stipulation and Agreement of Parties 9 11 2018 (Text)
Here, House Judiciary Chairman John Shott, introduces the proposed settlement:
This is Delegate Andrew Byrd, D-Kanawha, one of the House managers, talking about the settlement agreement:
Here is Ben Bailey, counsel for Chief Justice Workman, describing her perception of the deal:
10:52 a.m. Lawyers for each of the two justices who are subject to censure and a settlement agreement have been addressing the Senate.
Ben Bailey, the lawyer for Justice Workman, acknowledges deep problems with the Court. But, Bailey says, “Most of what the House set out to achieve, has been achieved.”
Mike Hissam, lawyer for Justice Walker, says she is prepared to go to trial. “Nevertheless, Justice Walker has acknowledged responsibility for the court’s spending. She has pledged to move toward improving the court’s policies, its processes, its oversight of spending.”
10:49 a.m. The settlement that was just announced — censuring justices Workman and Walker — is huge. MetroNews’ “Talkline” broke in with the news.
BREAKING NEWS: House Judiciary Committee Chairman John Shott (R-Mercer) has announced a settlement with Justices Walker & Workman that involves censure and dropping of the articles of impeachment. WATCH: https://t.co/wkudfIAoe1 pic.twitter.com/pFiPsRwsPU
— MetroNews (@WVMetroNews) September 11, 2018
10:33 a.m. An agreement with justices Margaret Workman and Beth Walker has been announced. It involves censure and dropping the articles against them.
House Judiciary Chairman John Shott said the settlement will begin to rebuild trust, will provide continuity and will help to focus the main effort on an impeachment trial on Justice Allen Loughry, who faces the most charges and the most public outrage.
Shott began by talking about Article 14, which is the overriding maladministration article that mentions all of the remaining justices. He’s talking about the challenge of presenting that article at 4 separate trials.
“It’s pretty clear that there’s one party who is most culpable and our primary goal is to make sure that party is held accountable,” Shott says, referring to Justice Allen Loughry.
Shott says there have been discussions with justices Workman and Walker, who face comparatively few charges, and those discussions are leading to a resolution that will achieve the goal.
Shott says the agreement reached includes acceptance and responsibility by Walker and Workman to work toward greater responsibility and greater accountability for the court. He says this will also provide continuity for the court.
Shott says a censure resolution has been drafted and the articles against Walker and Workman would be dropped. “We believe this is fair,” Shott says.
“There will be and there are no winners,” Shott says. But he describes this is a good first step to regain public confidence.
10:10 a.m. Senate President Mitch Carmichael is up front now. This will begin like a regular session of the Senate and then will be turned over to the presiding judge.
The bell has rung for the Senate to gather, but right now people are still milling about.
Even the opening prayer by Senator Greg Boso, R-Nicholas, made mention of the gravity of today’s proceeding. “It is a historic day. We are here because it is our constitutional duty.”
Senator Ryan Ferns, R-Ohio, moves to dissolve into an impeachment jury. Judge Farrell takes the oath and moves to the front of the Senate.
Judge Farrell administers the oath to senators pic.twitter.com/YZtOLGnmRT
— Brad McElhinny (@BradMcElhinny) September 11, 2018
Other officials then enter.
Impeachment managers, lawyers and Justice Loughry enter pic.twitter.com/TFMPCAGNiV
— Brad McElhinny (@BradMcElhinny) September 11, 2018
Among them, Justice Allen Loughry, who has been the face of the Supreme Court controversies.
Justice Loughry pic.twitter.com/eemjr9ZnGc
— Brad McElhinny (@BradMcElhinny) September 11, 2018
9:59 a.m. Cabell Circuit Judge Paul Farrell will be the presiding officer for today’s pretrial hearing and the Senate trials.
The state Constitution calls for the chief justice of the Supreme Court or a designee to preside over impeachment trials. That became an impossibility when the entire court was impeached.
Chief Justice Margaret Workman named Farrell to the Supreme Court to fill in for suspended Justice Allen Loughry and to preside over the impeachment trials.
That was initially controversial and seen by some as Workman naming the person who would preside over her own trial. That’s settled down, though.
I feel like the guy in the robe is probably Presiding Judge Farrell pic.twitter.com/gDiKvZsQmS
— Brad McElhinny (@BradMcElhinny) September 11, 2018
9:39 a.m. We were just told that Justice Allen Loughry will be here live and in person today. I’m not sure yet about the other justices.
9:35 a.m. Here are a couple of documents that might be helpful as we, the citizens, go through this together.
Here are the 11 articles of impeachment.
Certified Articles of Impeachment (Text)
And here are the rules for the Senate trial.
9:27 a.m. The House managers, serving as prosecutors, have filed a motion in opposition to Justice Beth Walker’s motion to be dismissed from the single impeachment article that names her.
BoardofManagersResponseJusticeWalkerMotiontoDismiss9 10 2018 (Text)
Walker, who was elected in 2016, was named in only one of the 11 impeachment articles passed last month by the House of Delegates.
That article accuses all four remaining justices of failing to establish policies about remodeling state offices, travel budgets, computers for home use and framing of personal items.
Essentially, the article claims the justices failed to hold each other accountable. All of the remaining justices were named in that article.
Because the only article that mentions Walker is that one, her lawyers have asked to be dismissed.
“In short, there is not a single allegation in Article XIV against Justice Walker individually — only generalized allegations against the court as a collective body,” her lawyers wrote. “Removal cannot rest on such allegations as a matter of logic or law.”
9:22 a.m. Managers from the House of Delegates will be presenting the cases, almost as prosecutors.
The managers had included House Judiciary Chairman John Shott, R-Mercer; Judiciary Vice Chairman Roger Hanshaw, R-Clay; Delegate Ray Hollen, R-Wirt; Delegate Rodney Miller, D-Boone; and Delegate Andrew Byrd, D-Kanawha.
But late last month, Hanshaw was elected to be the new House speaker. So, a motion was filed to substitute in Delegate Geoff Foster, R-Putnam, as a manager in place of Hanshaw.
Foster is on the House Judiciary Committee and serves as the assistant majority whip in the House.
9:14 a.m. Some motions have already come in over the past few days.
Lawyers for Chief Justice Margaret Workman are asking for an impeachment trial date of no sooner than Oct. 15.
The lawyers for Workman also say they plan to submit at least a dozen different motions to dismiss the impeachment charges against her. Lawyers for Justice Beth Walker on Friday afternoon filed a motion to dismiss Walker from the single article naming her.
9:13 a.m. The House of Delegates last month passed 11 articles of impeachment dealing with the justices’ administrative and spending decisions.
Senators could serve as jurors for as many as four trials, for justices Margaret Workman, Beth Walker, suspended Allen Loughry and Robin Davis, who announced her resignation the day after the House of Delegates passed 11 impeachment articles last month.
Justice Menis Ketchum resigned before impeachment began. He has pleaded guilty in federal court to a mail fraud charge related to his use of a state vehicle to drive to golf outings in Virginia. His use of a state-issued purchasing card for gasoline triggered a fraudulent cross-state payment.
Senators serve as a jury to consider the articles of impeachment and decide whether the remaining justices should be removed from office.
Presiding Justice Paul Farrell, who was named to the Supreme Court to fill in during Loughry’s suspension, may determine the schedule for up to four trials.
West Virginia’s Constitution allows for any officer of the state to be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.
West Virginia has reached this point after months of controversy involving the Supreme Court.
Scandals came to a head this summer when Loughry was first charged by the state Judicial Investigations Commission and then by the U.S. Attorney’s Office. In each case, Loughry was accused not only of misusing state resources but, worse, lying about the acts to investigators.
He has been suspended from the Supreme Court and faces two dozen federal charges. Loughry’s federal trial is set for Oct. 2.
The spark was lit last September with news reports about lavish renovations of justices’ chambers: the $32,000 couch and $7,500 wooden inlaid floor in Loughry’s office, a $500,000 office renovation and $28,000 rug in Davis’s office, and a $130,000 upgrade of Walker’s chambers.
Loughry denied guiding his own renovations and matters got worse.
Controversy then erupted over Loughry’s possession at his home of an antique desk associated with famed architect Cass Gilbert from when the state Capitol was first built. He took it home in 2012 while he was still a law clerk.
Then another couch added fuel to the fire. Loughry was accused of taking home a leather couch that had belonged to Justice Joseph Albright.