The full state Senate will consider a resolution that would specify that courts have no authority to intervene in impeachment proceedings.
The Senate Judiciary Committee passed the resolution on Monday afternoon. Before the full Senate, it would need to pass by a two-thirds majority vote because it could lead to a constitutional amendment.
The House of Delegates already approved the measure last week. If the full Legislature passes it, West Virginia voters could get the responsibility to decide for themselves whether to amend the state Constitution during the 2022 General Election.
The change amounts to one line:
No court of this state has any authority or jurisdiction, by writ or otherwise, to intercede or intervene in, or interfere with, any impeachment proceedings of the House of Delegates or the Senate conducted hereunder; nor is any judgment rendered by the Senate following a trial of impeachment reviewable by any court of this state.
“So basically, it would just not allow the courts to intervene even if a Legislature was way outside the scope of its power?” Senator Mike Caputo, D-Marion, asked during Monday afternoon’s House Judiciary meeting.
Senator Mike Woelfel, D-Cabell, described an extreme example to show why he believes the state still needs a way for courts to intervene in impeachment.
He described the origins of the coronavirus in China and imagined what would happen “if we had a Chinese justice on the Supreme Court and we as a body wanted to impeach that person based on their national origin alone and that was clear — this bill would prevent the court from saying ‘Wait a minute you can’t impeach someone based on discriminatory views.'”
Senator Mike Romano, D-Harrison, picked up on that example and concluded, “So there would be no remedy for that wrong.”
Romano proposed an amendment that would have specified the amendment would only apply to court intervention in impeachment procedures. Under that approach, the courts could still intervene on constitutional grounds. But his amendment was rejected by a majority of committee members.
Senator Patricia Rucker, R-Jefferson, noted that the hurdles for impeachment are high. The steps include a majority in the House of Delegates to impeach and then two-thirds of senators to convict.
“You would still have to convince a supermajority of senators to vote for it in order for it to happen,” she said.
In 2018, West Virginia justices were impeached on a range of charges, including lavish spending on office renovations, the use of state vehicles for private travel, approving pay for some senior status judges above the legal limit and failure to hold each other accountable.
A lawsuit by Justice Margaret Workman contended the grounds for impeachment crossed over into the judiciary system’s own constitutional authority. She also contended the Legislature hadn’t precisely followed its own procedures.
Her case went to the state Supreme Court, where a panel of temporary justices decided the matter because the usual state Supreme Court had recused. The substitute Supreme Court ruled to block the impeachment trials of most of the justices.
A separate opinion by acting judges Duke Bloom and Jacob Reger concurred with some parts of the main opinion and dissented with others. They wrote that the majority correctly concluded the judiciary has a limited role in impeachment proceedings, extending to protection the constitutional rights of an impeached official.
But Bloom and Reger said the majority opinion went beyond that role. They said the Legislature should have had the ability to correct any procedural errors. And although they wrote that it was clear the Legislature could not impeach again on two of the allegations that veered into the justices’ constitutional authority, they said a maladministration count could have been heard again.
The two judges wrote that “we feel that it is imperative that we make clear that it is our belief that the Legislature has absolute authority to impeach a judicial officer or any State public officer for wrongful conduct.”
They added, “Even so, judicial intervention in an impeachment proceeding should be extremely rare, and only in the limited situation where an impeachment charge is prohibited by the Constitution.”
West Virginia Citizens for Clean Elections, a community organization focusing on electoral and judicial issues, has described the possible amendment as unnecessary. The organization says the legislative branch already has a power laid out clearly in Article 4 of the state constitution.
Instead, the organization says, this is a power grab.
“HJR 2 would cut loose future impeachment proceedings of the state legislature from all constitutional restraint,” the organization wrote.
“The amendment would make it so that no court in the state could intervene to protect the right to a fair hearing of a public official facing impeachment, no matter how frivolous the charge or constitutionally flawed the process.”