CHARLESTON, W.Va. — Lots of twists and turns remain on West Virginia’s Supreme Court impeachment adventure.
“It’s a sad historical moment, but we are where we are,” Delegate Rodney Miller, D-Boone, said on “580 Live” on WCHS Radio.
The House of Delegates got the ball rolling last month by passing 11 articles of impeachment against four remaining justices. Miller is one of the official impeachment managers for the House.
The Senate assured impeachment trials this week by batting down a settlement proposal that would have censured justices Margaret Workman and Beth Walker. Senators also voted down a motion to dismiss articles against retired Justice Robin Davis.
So, for the rest of the fall, West Virginia will experience one trial after another for its Supreme Court.
What happens next?
There’s a bit of a calm before the storms. There’s also significant preparation.
“We couldn’t start tomorrow. As we told the court, we need some time to prepare,” said House Judiciary Chairman John Shott, who will essentially be in the role of lead prosecutor.
“We’ll apparently be receiving about 50,000 documents. We will be ready We’ll go forward and present hopefully effective efforts in each case.”
The prosecution, represented by five managers from the House of Delegates, is exchanging evidence and witness lists with lawyers for the justices. That information and other documents is publicly-available on an impeachment proceedings page at the Legislature’s website.
What’s the trial schedule?
The pattern is to allow about two weeks for each trial, though it’s unclear whether that period will be adequate.
Justice Beth Walker starts off at 9 a.m. Oct. 1. That’s just one day before the scheduled federal trial of her former colleague, Allen Loughry.
Chief Justice Margaret Workman is set for 9 a.m. Oct. 15.
Retired Justice Robin Davis, who has gathered a legal team of national reputation, goes at 9 a.m. Oct. 29.
There’s a scheduled break to observe Election Day, which is Nov. 6.
Then, starting at 9 a.m. Nov. 12, the grand finale is the Senate trial of Justice Loughry.
What will this cost?
The estimated average daily cost for the Court of Impeachment is about $10,915, which is broken down like this:
- Senator salary (daily rate of $150, plus chamber duties for President, Majority Leader and Minority Leader): $5,350
- Senator average per diem (including mileage): $4,600
- Doorkeepers: $554
- Sergeant at Arms: $155
- Per diem attorney: $256
The total bill depends on how long the trials last. The presiding judge allotted two weeks for each trial. So if you allow 10 weekdays times four trials, that would be about 40 days — at a total of $436,600.
What are the allegations again?
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.
Of the 11 articles of impeachment passed by the House, some name individual justices and others name multiple justices.
Seven name Loughry, four name Davis, three name Workman and one names Walker.
Each of those justices is named in an all-encompassing maladministration charge of failing to establish policies about remodeling state offices, travel budgets, computers for home use and framing of personal items.
Loughry, who also faces two dozen federal charges, is accused of taking a state-owned antique “Cass Gilbert” desk to his own home, of driving a state vehicle to personal events such as signings for his political ethics book, of having state computer equipment installed at his home for personal use and of lying under oath to the House Finance Committee.
Loughry and Davis are also named individually in articles focused on their expensive office renovations — $500,278.23 for Davis and $363,013.43 for Loughry.
Articles that targeted Walker and Workman for renovations on their offices did not go forward from the House.
Loughry, Davis and Workman are all named in articles claiming they circumvented state law to pay senior status circuit judges above a capped amount as they filled in on open benches around the state.
Wasn’t there another guy?
Justice Menis Ketchum resigned before impeachment began. He has pleaded guilty in federal court to a wire 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.
The House of Delegates declined to consider impeachment of Ketchum when he announced his retirement the day before the proceedings began.
Are senators really going to have a trial for Davis, even though she resigned?
Looks like it.
Davis announced her resignation August 14, the day after the House passed the articles of impeachment. She blasted the impeachment process.
“What we are witnessing is a disaster for the rule of law, the foundation of our state, and indeed, our very society,” Davis said that day.
“For when a legislative body attempts to dismantle a separate branch of government, the immediate effects, as well as the precedent it sets for the future, can only be termed disastrous.”
Davis is investing significantly in her own defense. Her legal team includes James Cole, former deputy attorney general of the United States.
There was a divide in the Senate about whether to go ahead with the charges against Davis.
West Virginia’s Constitution says impeachment may apply to “any officer of the state.” The Constitution also says “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit, under the state.”
Senate Judiciary Chairman Charles Trump cited both factors this week as he presented a motion to dismiss the articles against Davis.
“Under the circumstances, the question is rendered largely moot,” said Trump, R-Morgan. “I would urge my colleagues in the Senate there is no purpose in proceeding with articles of impeachment on Justice Davis.”
Trump’s argument didn’t win the day. The motion was rejected on a 15-19 vote. The vote was not along party lines.
Senators on the other side of the argument, including some from Trump’s own party, focused on the part about disqualification from any office.
Senator Robert Karnes, R-Upshur, wondered if Davis could be considered a senior status judge.
And Senator Craig Blair, R-Berkeley, said a Senate trial would give Justice Davis an opportunity to clear her name. He also said proceeding could reflect on Davis’s ability to collect on her pension. “Let’s move forward with it,” Blair said.
Nothing in the Constitution’s wording about impeachment specifies that the official’s pension would be at risk. Governor Jim Justice’s office has provided notification to Davis that she is eligible for her pension after 22 years on the bench.
The West Virginia Public Employees Retirement Act says “Any member of the retirement system who has been removed from office or his office shall have been vacated for official misconduct, incompetence, neglect of duty, gross immorality, malfeasance, or misfeasance shall immediately have his membership in the retirement system terminated permanently by the board of trustees and shall never become eligible for an annuity.”
The official’s personal contributions would be refunded. The ultimate determination would lie with the West Virginia Consolidated Public Retirement Board.
How complicated will all this be?
There are already 74 exhibits and transcripts representing eight sets of testimony just from the House Judiciary Committee hearings.
To use Justice Workman’s defense as an example, her lawyers have indicated plans to introduce a dozen distinct motions to dismiss the allegations.
Workman’s lawyers say they would normally have six months to a year to prepare.
“Because the trial will concern subjects so numerous and varied, enormous amounts of evidence must be obtained and reviewed not only by the defense, but also by the Board of Managers,” Workman’s lawyers wrote.
“Respondent has identified more than 60 possible witnesses, and today will produce in excess of 35,000 pages of documents that could be used at trial.”
The detailed reality of putting on four trials is one of the notions that Shott tried to convey this week as he suggested senators accept a settlement proposal to drop the articles involving Workman and Walker and censure them instead.
“We have identified on our side at least 30 witnesses that would need to be called,” Shott, R-Mercer, told senators.
“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.”
Because the articles are intertwined but the trials are separate, some witnesses may be called multiple times to testify.
“We are prepared to hear the trial,” Senate President Mitch Carmichael, R-Jackson, said on MetroNews’ “Talkline.”
“The question is, are the House managers prepared to present the case? They presented these articles of impeachment and we’re willing to sit as a court of impeachment to hear that.”
Shott said, despite the voluminous material, the managers will be prepared.
“We will go forward,” he said. “We’ll be ready.
What if this goes longer than intended?
Prevailing wisdom has been that the trials have to be completed before newly-elected lawmakers are seated. That would be after Election Day and before the next regular session begins.
“We have four cases that are pending, and we have a limited time to get those resolved,” Shott said on “Talkline.”
“As you know when the election is certified in early December, both the House and Senate turn over and essentially any impeachment proceedings that are in process would have to begin again.”
Research by the Senate staff, including its parliamentarian, indicates greater flexibility.
The Constitution authorizes the Senate to sit during the recess of the Legislature for an impeachment trial.
That may provide the latitude to try impeachments beyond an expiration of the current legislative year. That conclusion was passed on by Senate Communications Director Jacque Bland:
“These are all seats, and they don’t change. The people in those seats change, but the actual Senate doesn’t change. Whoever sits in that seat has that Constitutional duty of being a juror in this trial. They wouldn’t have to start the whole process over.”
Would it be disruptive to start impeachment trials with one cast of lawmakers and then conclude with another?
Possibly. But it might happen.
“It could cause a calendar crisis,” Delegate Miller said. “The clock is certainly on it.”