Path forward on W.Va. impeachment trials isn’t clear

CHARLESTON, W.Va. — The rubber could meet the road Monday morning in the impeachment trial of West Virginia Supreme Court Chief Justice Margaret Workman.

Or, more likely, lawmakers could take a look at the impeachment pileup that occurred late last week and start picking out a path around the carnage.

The final possibility is that the Legislature could let it rest.

The state Senate is scheduled to gavel in at 9 a.m. Monday. The impeachment trial for Workman had been set for 9:30, but an acting Supreme Court issued an order blocking the trial.

“In the meantime, the Senate is fully evaluating other options available to it regarding the Court’s decision,” Senate spokeswoman Jacque Bland wrote in a Friday statement to media.

No officer, no trial

One major obstacle is that the state Constitution requires a presiding officer designated by the Supreme Court for an impeachment trial. Judge Paul Farrell, who has been serving in that role, has stated that the acting court’s order will prevent him from continuing.

The Senate will go ahead and meet Monday morning because senators adjourned until that date after the impeachment trial of Justice Beth Walker.

Mitch Carmichael

But plowing ahead with a trial for Workman will be impossible under current circumstances, Senate President Mitch Carmichael said.

“We always knew that we had to go into session on Monday but as far as conducting a trial it’s going to be basically impossible to do without a judge,” Carmichael told The Register-Herald.

The lead lawyer on Justice Workman’s motion, Marc Williams, agreed.

“The bottom line is, they cannot go forward with this trial on Monday,” Williams said Friday on MetroNews’ “Talkline.”

Roger Hanshaw

House Speaker Roger Hanshaw issued a statement on Friday, saying the impeachment managers from that body would be ready to present their case.

“The House will be prepared to move forward with the scheduled proceedings in the Senate on Monday morning,” Hanshaw stated.

“The Legislature looks ahead to working with the other branches of our state’s government to restore the proper, and constitutional, balance of power in our government when these proceedings come to a close.”

U.S. Supreme Court

There are other possibilities.

The day the ruling was issued by the acting court, the Senate made reference to a possible appeal to the U.S. Supreme Court.

“We have received the Court’s Order and are planning to appeal to the U.S. Supreme Court of Appeals,” Bland wrote in a statement for the Senate.

Williams suggested that’s a longshot.

“It is highly unlikely the Supreme Court would ever look at this case,” Williams said. “The Supreme Court takes a very small percentage of the cases that come before it. I think the likelihood that this would end up being reviewed by the Supreme Court is extremely rare.”

Start over

There is another path, too. But it would involve going back to the beginning of the process.

A separate opinion by acting judges Duke Bloom and Jacob Reger concurred with some parts of the main opinion and dissented with others.

Their opinion agreed that the impeachment process was not on solid ground with articles alleging Justice Workman circumvented state code to allow some senior status judges to earn more in a year than they were legally allowed.

Bloom of Kanawha County and Reger of Upshur County agreed those articles can’t be revisited.

Margaret Workman

But the judges said there is a way to properly express the remaining article against Workman, one that alleges maladministration for not keeping proper oversight of her fellow justices.

In the circumstances of impeachment, their opinion equates the House of Delegates to a grand jury that could correct a defective indictment.

They wrote, “We believe the Legislature has absolute discretion in seeking to re-impeach the petitioner on the allegations contained in Article XIV.”

Williams agreed that is possible, if the governor would call a special session again to bring back the House of Delegates.

“Of course, that’s going to require the House to reconvene,” he said. “They would have to then pass a new article of impeachment against Justice Workman or one of the other justices.

“The timing is in question because you’ll have a new Legislature convening after the election in November. They could fix some of it, but it will require a lot of things to fall into place that I’m not sure are possible.”

More trials wiped out

Another consequence of last week’s ruling in the Workman case is that it also invalidates the scheduled impeachment trials of justices Robin Davis and Allen Loughry.

Suspended Supreme Court Justice Allen Loughry

A jury on Friday afternoon found Loughry guilty of 11 federal counts, including mail fraud, wire fraud, tampering with a witness and providing a false statement to a federal investigator.

Part of the opinion by the acting Supreme Court said the Legislature had not gone through proper procedures for the impeachment process by not including findings of fact in the articles and failing to pass a full resolution adopting the articles.

Bloom and Reger wrote that the acting Supreme Court should not have even considered those procedures.

“The impact of both of those alleged errors on the impeachment proceedings was a matter for the House of Delegates to resolve and, in the absence of the matter being resolved by the House, it should have been presented to the Court of Impeachment for the Senate to resolve,” Bloom and Reger wrote.

Robin Davis

Because those aspects of the process also did not occur in the impeachment of Davis and Loughry, their impeachment trials are now invalidated.

“More importantly, the advisory opinion on the two issues has a lethal consequence — it has invalidated the impeachment trials of the two remaining judicial officers,” Bloom and Reger wrote.

Davis has already retired from the Supreme Court, but the Senate was moving ahead with her trial, potentially affecting her state pension or if she should be allowed to run for office again.

Loughry’s sentencing is set for this coming January. He is suspended from the Supreme Court. He could wind up serving jail time but be spared from impeachment.

So far, through the mounting pressure of a year of controversy and charges, Loughry has refused to resign.

How we got here

Workman’s lawyers filed her motion Sept. 21 with the very court where she serves.

The chief justice recused herself from hearing the case, as did fellow Justice Beth Walker. Acting justice Farrell, serving in place of Loughry, also recused himself.

The Supreme Court seats that had been occupied by justices Davis and Menis Ketchum, who has pleaded guilty to his own federal mail fraud charge, were not filled at the time.

Thomas McHugh, a senior status judge and former Supreme Court justice, was temporarily assigned to the court to appoint an acting chief justice who would then appoint four other acting justices.

McHugh did not serve on the acting court himself but filed an order appointing Judge James Matish of the 15th Judicial Circuit to be acting chief justice in the case.

Matish then appointed four more justices to be the substitute Supreme Court.

The judges opted not to hear oral arguments in the case but instead filed a 65-page ruling on Thursday afternoon.

The judges make it clear that their ruling should not be interpreted to mean the Legislature does not have the power to impeach officials in the judicial branch.

But the judges asserted that an officer who has been impeached “may seek redress for an alleged violation of his or her constitutional rights in the impeachment proceedings, by filing a petition for an extraordinary writ under the original jurisdiction of this court.”

The acting court based much of its ruling on the separation of powers doctrine in the Constitution, asserting the judicial system’s right to govern itself.

“You can’t impeach somebody for conduct that is clearly within their constitutional authority,” Williams, Walker’s lawyer, said Friday.

On the two articles that dealt with the overpayment of senior status judges, the acting court cited West Virginia’s 1974 Judicial Reorganization Amendment that gave the court system central, constitutional authority to oversee its own administration.

That meant, the acting court ruled, that an administrative ruling issued by Workman last year on the payment of senior status judges would supersede the law limiting those payments.

“In light of our holding, the petitioner did not overpay any senior-status judge as alleged in Article IV and Article VI of the Articles of impeachment, therefore the respondents are prohibited from further prosecution of the Petitioner under those Articles,” the judges wrote.

The acting court also ruled that Article XIV, the maladministration article, also oversteps the Legislature’s bounds by invoking the Code of Judicial Conduct.

The judges ruled that although there may be other reasons to impeach an official in the court system, the judiciary has sole oversight of violations of the Code of Judicial Conduct.

“To be blunt, Article XIV is an unwieldy compilation of allegations that culminate with the accusation that Petitioner’s conduct, with respect to the allegations, violated Canon I and Canon II of the Code of Judicial Conduct,” the judges wrote.

“We agree with Petitioner that this Court has exclusive constitutional jurisdiction over conduct alleged to be in violation of the Code of Judicial Conduct.”

That’s the instance where Bloom and Reger suggested the House of Delegates could reconstitute the article and drop the reference to the Code of Judicial Conduct, maintaining other aspects of the impeachment allegations.

The full substitute court concluded there were other fatal flaws in the process the House of Delegates used to pass the Articles of Impeachment.

“We believe that there may be collateral consequences in failing to address the issues, the issues are of great public importance, and the issues may present themselves again,” the judges wrote.

The judges said the House of Delegates failed to provide findings of fact, despite its own impeachment rules requiring it to do so.

The acting court also said the process was flawed when the House Judiciary Committee and then the full House passed the individual articles but not the full resolution that included the articles.

“We are gravely concerned with the procedural flaws that occurred in the House of Delegates,” the acting court wrote.

“Basic due process principles demand that governmental bodies follow the rules they enact for the purpose of imposing sanctions against public officials.”

Bloom and Reger, in their concurrence, wrote that the rest of the acting court should have just left those issues alone.

“It is clear that when the majority opinion resolved the substantive issues in Article IV, Article VI and Article XIV, the petitioner had obtained the relief she sought,” the two judges wrote. “Thus, there was no need to address the remaining issues raised.”

House Speaker Hanshaw, in the statement issued Friday afternoon, said the ruling by the acting court “unfortunately, interjected unnecessary confusion where none had to be.”

Hanshaw stated, “A strict reading of [the] opinion removes all checks and balances on the judicial branch of government. Clearly, that result cannot stand as law in West Virginia.”

Workman Opinion (Text)

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