The West Virginia Supreme Court of Appeals is in some disarray, with one Justice retiring and under federal indictment, the former Chief Justice suspended without pay and also under federal indictment, and the former Chief and the other three Justices being the subject of impeachment hearings in the state House of Delegates.
The five members of the court were Margaret Workman, Robin Davis, Allen Loughry, Beth Walker, and Menis Ketchum. Ketchum has resigned. The court is the only Supreme Court in the country whose budget is not subject to legislative oversight and approval; spending practices are the source of the court’s current problems.
Early in 2017, when the state was in the middle of a severe budget crisis, the court came under fire for expensive renovation and redecoration of their offices. Legislative auditors reported that renovations to the five justices’ offices in the State Capitol cost more than $1.5 Million. One proffered defense of the spending was that the court’s offices in the State Capitol building, completed in 1932, required a great deal of work to update and that work on historic structures is expensive. Critics pointed out that $130,000 had been spent to renovate one office that had been renovated at a cost of $264,000 for a former justice only a few years before. The court had spent over $42,000 on “working lunches,” over $114,000 on picture and certificate framing over a six-year period, and $28,000 on “luxury rugs.” Details of the spending by former Chief Justice Loughry-- spending $32,000 for a couch, $7,500 for an inlaid wooden floor in his office, among other expensive items—drew the most outrage from the public.
It also developed that Justices Ketchum and Loughry had each used court vehicles for personal travel. Ketchum later had his W-2 forms retroactively updated to reflect the travel benefit and repaid the state $1,663.81 for incorrect travel expenses. Loughry had also taken state furniture and equipment to his home for his personal use and is reported to have taken a state automobile to his home county to attend a Magistrate Court hearing in a civil case in which his father was the defendant. Part of Loughry’s public reputation was built on his authorship of a book detailing political corruption in West Virginia, “Don’t Buy Another Vote. I Won’t Pay for a Landslide. The Sordid and Continuing History of Political Corruption in West Virginia.”
The state Judicial Investigation Commission (JIC), appointed by the Supreme Court to monitor compliance by judges with the Code of Judicial Conduct, drafted a 32-count complaint against Loughry in which they quoted his own book against him and suspended him without pay. Loughry has since been indicted on, and pleaded not guilty to, federal charges that include obstruction of justice, mail and wire fraud, witness tampering, and lying to federal investigators. The JIC concluded its investigations of Justices Davis, Walker and Workman “without taking any disciplinary action.” Justice Ketchum resigned with two years left on his twelve-year term and then pleaded guilty to a federal information related to his improper use of a state-owned vehicle and fuel card.
The judiciary committee of the Republican-majority House of Delegates this week returned fourteen articles of impeachment against the four remaining justices. All four are charged with “unnecessary and lavish” spending and failing to establish policies to govern spending and court equipment. Loughry is cited individually for his alleged use of state vehicles for personal travel, having state furniture and computers in his home, having personal photos, documents, photos and artwork framed at court expense, and for entering an administrative order approving payments in excess of what is permitted by statute to senior-status judges who were appointed to preside in cases. Justices Davis and Workman were also cited for approving excessive payments to senior-status judges when they each had served as Chief Justice, a position that the Justices used to rotate every year.
Political considerations are having a real or imagined effect on events. Until recent years, judicial officers in West Virginia were elected on a partisan ballot, so Justices Workman, Davis, and Ketchum were elected as Democrats. Justice Loughry was elected as a Republican. Justice Walker was elected in 2016 after the system was changed to elect Justices on a non-partisan ballot, although earlier she had run unsuccessfully for election to the court as a Republican.
Both houses of the legislature have Republican majorities. The Governor is a Republican, although he was elected as a Democrat and later changed parties under the encouragement of President Trump. The Governor will appoint someone to replace Justice Ketchum for the remainder of his term, and would appoint replacements for any other Justice who leaves office. Such replacements would serve, at most, about two years until an election could be held to fill the office or any unexpired term. Some Democrats have charged that the Republicans in the House delayed consideration of the Articles of Impeachment until after the deadline for putting vacant positions on the ballot in November of 2018 so that the Governor would be able to appoint replacements who could serve two years instead of only a few months. Others point out that even after impeachment in the House, a trial would have to be conducted in the Senate, and that this would have delayed the removal any justice anyway.
The state Judicial Vacancy Advisory Commission is considering applicants to submit to the Governor to replace Justice Ketchum until the next judicial election. In the meantime, Justice Workman, who was selected by the three active Justices to serve again as Chief Justice, has appointed Circuit Judge (Circuit Courts are West Virginia’s courts of general jurisdiction) Paul Farrell to serve as a Justice temporarily in the place of Justice Loughry, as provided by state law. However, in addition to this, the Chief Justice appointed Judge Farrell to serve as a temporary replacement for herself as Chief Justice if she, Davis, and Walker are subject to a Senate impeachment trial, over which the Chief Justice is required to preside under the State Constitution. This led Justice Walker to file a response in which she noted, “I believe it is improper to designate any justice as Acting Chief Justice for impeachment proceedings in which I or my colleagues may have an interest and that have not yet commenced in the Senate.”
Justice Davis released a statement about the “Acting Chief Justice” appointment, noting that the state Constitution gives the chief justice the authority to appoint an acting chief justice, and stating “Any statement to the contrary is intellectually flawed and has no basis under our State Constitution.”