August 14, 2018 Update:
The West Virginia House of Delegates on August 13 and 14 considered the 14 Articles of Impeachment reported to it by the House Judiciary Committee. The House adjourned at 1:44 a.m. on Tuesday, August 14, after discussing and voting on each Article in a fourteen-hour session.
All of the Justices have been impeached, although the seriousness of the charges vary by Justice. All of the Justices have received a public censure and reprimand by House Resolution.
“In Monday’s hearings, the House adopted 11 of 14 Articles of Impeachment-- rejecting one and withdrawing two articles. Of the adopted articles, suspended Justice Allen Loughry was named in seven, Justice Robin Davis in four, Chief Justice Margaret Workman in three, and Justice Beth Walker in one— which included articles that individually focused on particular justices and some that combined them.”
“The House rejected Article 12 regarding Walker’s office renovations, which totaled $131,000. …This article was rejected in a 44-51 vote. …Following the rejection of Article 12, [Delegate] Shott moved to withdraw Article 13, which focused on Workman’s renovations, which totaled $111,000. Shott’s motion to withdraw was approved.” Id.
“The House also introduced House Resolution 203, recommending public reprimand and censure of all remaining state Supreme Court justices. This resolution was adopted in a 95-1 vote.
The House introduced House Resolution 204, which recommended censure of [former Justice] Ketchum and former Justice Brent Benjamin. This was referred to House Judiciary.” Id.
Justice Ketchum resigned shortly before the House Judiciary Committee began consideration of articles of impeachment. Benjamin was defeated in his bid for re-election by Justice Walker.
The Articles of Impeachment will be reported to the Senate for its consideration.
On the morning on August 14, 2018, Justice Robin Davis announced her retirement from the West Virginia Supreme Court of Appeals, effective yesterday August 13, saying that this would permit voters to select her replacement in the November general election. Today, August 14, 2018, is the deadline for a vacancy to occur so that a replacement could be elected in 2018 instead of 2020. It is likely that the chief justice will select a Circuit Judge to sit in Davis’s place until a new Justice takes office in January.
August 25, 2018 Update:
Chief Justice Margaret Workman has vowed to stay in office and ride out the impeachment trial in the Senate. Earlier this week, the Senate announced that it had adopted rules for the conduct of the Senate trial of the eleven Articles of Impeachment earlier adopted by the House of Delegates. The Senate also announced that each Justice would be tried separately. The order of the trials will be determined by the Justice selected by the Supreme Court to preside over the trials. The Senate is adjourned until called back into session by the Senate President. Justices Loughry, Workman, and Walker have to be served formally with the Articles of Impeachment. Their lawyers may ask for discovery and a witness list. Senate President Mitch Carmichael has suggested trials might occur in September. Justice Loughry’s criminal trial in federal court is scheduled to commence in October.
The non-partisan election in November to fill the positions held by Menis Ketchum and Robin Davis will be conducted in two “divisions,” as provided by state law. Division 1 is for the two years remaining on Justice Ketchum’s term after his resignation, and Division 2 is for the six years remaining on the term of retired Justice Robin Davis. Only a plurality of votes is required to win the positions, making it possible that a fringe candidate could be elected if a large number of candidates fractures the vote.
Twenty candidates have filed to run, ten for each Division. Among the notable candidates are Republican Third District Congressman Evan Jenkins who gave up his safe seat to run for the Republican nomination for the United States Senate; he came in second in that race to West Virginia Attorney General Patrick Morrisey, and Republican Speaker of the House of Delegates Tim Armstead who recently resigned from the House to run in Division 1. Former Senate President Jeff Kessler has filed to run in Division 2. Kessler ran for the Democratic nomination for Governor, hoping that the support of the liberal wing of the party and of labor unions would give him victory, but he lost to billionaire coal and farming magnate Jim Justice, who went on to win the general election. Justice later changed parties, announcing the change at a rally in Huntington with President Trump.
On Saturday August 25, Governor Justice announced that he had appointed Congressman Jenkins to replace Justice Davis and Tim Armstead to replace Justice Ketchum until the winners of the November elections are sworn in. The Governor did not appoint anyone to replace Justice Loughry because he is only suspended and therefore his office isn’t vacant. Circuit Court Judge Paul Farrell was selected by Chief Justice Margaret Workman to sit on the court temporarily in the place of Justice Loughry and to act as Chief Justice to conduct the Senate impeachment trials. However, the Chief Justice position is filled by the vote of the Justices and can be changed at any time. Justice Workman was elected Chief Justice after Justice Loughry was suspended. Workman’s appointment of Judge Farrell as acting Chief Justice to conduct a Senate trial was criticized by Justice Walker, and she and new Justices Armstead and Jenkins could prevail on Chief Justice Workman to select someone else to preside at the impeachment trial in the Senate, or could replace her as Chief and the new Chief could appoint someone else to preside.
October 4, 2018 Update
In the month that has elapsed since the last post in this thread, there were lawsuits filed in the state Supreme Court to block the appointments of former Speaker of the House of Delegates (which impeached members of the supreme court) and Congressman Evan Jenkins. The suits were heard quickly, on September 24, by the Supreme Court, which was made up of Circuit Court (West Virginia trial court) judges appointed to hear the cases along with acting Justice (and Circuit Judge) Paul Farrell who was appointed by Chief Justice Margaret Workman to sit in place of suspended Justice Allan Loughry.
The argument against Jenkins was that the state Constitution requires that a justice or judge be engaged in the active practice of law for a minimum of ten years before assuming office, and Jenkins’ license has been on inactive status since his election as a Congressman four years ago. The counter-arguments were that the Constitution does not say “ten years immediately before assuming office” and that no one thinks that the three Circuit Judges running for Justice in the November election are disqualified despite the fact that Circuit Judges must change their law-license status to “inactive” when they become judges.
The argument against former Speaker Armstead was that the Constitution bars a legislator from assuming an office created by the legislature during his term in the legislature, and also bars a legislator from assuming an office if the salary for the office was changed during the legislator’s term. The response to these arguments was that the office was “created” long ago by the Constitution and not by the resignation of the holder of the office even if made in the face of imminent impeachment, and that during Armstead’s last two-year term in the legislature- the only “term” that is relevant- no change had been made in the Justices’ salaries. Two hours after the argument was completed the court issued a one-page order dismissing the claims, saying that “there is no clear right to the relief sought by the petitioners.”
Both Jenkins and Armstead have since taken the oath of office and installed as Justices.
The state Senate has determined that the four impeached justices could not be tried together, but have to be tried serially. Justice Beth Walker’s trial was completed on October 2, and she was acquitted by a vote of 32 to 1, although the contrite Justice Walker was censured and reprimanded.
In late September, lawyers for impeached Justice Margaret Workman filed an original petition for a Writ of Mandamus in the state Supreme Court asking that the court stop the imminent trial of the articles of impeachment against her in the state Senate.
Justice Workman argues, “This Court must order the Senate to halt proceedings that undermine the separation of powers principles enshrined in the West Virginia Constitution.”
That is, the Petitioner wishes to cure what she sees as the legislature’s invasion of the rights of the court to do whatever it wished to do by having the court invade the rights of the legislature to impeach her for having done so. Lawyers for the state Senate have replied:
“This Court must deny Petitioner’s request for a stay because the Petition is an illegal and unconstitutional attempt to usurp authority that has been exclusively delegated to the West Virginia House of Delegates and West Virginia Senate by the Constitution of West Virginia,” wrote the lawyers for the Senate.
The lawyers continued, “If this Court exercises jurisdiction over the Petition, it will provoke a constitutional crisis by effectively eliminating the Legislature’s only check over the courts.”
The prospects for this Petition seem bleak. Workman’s Senate trial is scheduled to start on October 15.
Meanwhile, former Justice Robin Davis has sued the Governor, all of the members of the House of Delegates who voted to impeach her, the state Senators who voted to move ahead with the impeachment despite her resignation from the court, and the clerks of the House of Delegates and state Senate. Her suit also seeks an injunction to stop her Senate impeachment trial, now scheduled to commence on October 29, and was filed in federal district court in West Virginia’s state capital. (U.S. District Court for the Southern District of West Virginia case number 2:18-cv-01316). She alleges, in part, that the Republicans in the legislature wanted to remove Democrats and women from the court to replace them with Republican men. The suit alleges that the federal court has subject matter jurisdiction under 28 U.S.C. § 1331 (Federal Question) and 28 U.S.C. § 1367 (supplemental jurisdiction). A link to the Complaint can be found at http://wvmetronews.com/2018/09/26/former-justice-robin-davis-sues-over-wv-supreme-court-impeachment/ . The prospects for this effort also seem bleak.
On October 2, a jury was empaneled in the federal criminal trial against suspended Justice Allen Loughry who is accused of using his public office for personal gain. His impeachment trial in the Senate is set to commence on Nov. 12.
October 11, 2018 Update:
On October 11, 2018, the West Virginia Supreme Court of Appeals granted the Petition for Writ of Mandamus sought by impeached Justice Margaret Workman and has ordered her trial in the State Senate not to commence. The State Senate leadership had said it would conduct her trial, scheduled to commence on Monday, October 15, despite the ruling, and will also appeal the ruling to the United States Supreme Court. However, Acting Chief Justice Farrell is reported to have said that he will not preside at the Senate trial in the face of a Writ from the Supreme Court. The West Virginia Constitution requires the Chief Justice to preside over Senate impeachment trials.
The Supreme Court acted through five trial court judges appointed to act as temporary Justices to hear the case and produce the sixty-nine-page-long opinion.
The ruling was arrived at by three of the Acting Justices with two Acting Justices concurring in part and dissenting in part and reserving the right to file separate opinions.
The court listed the issues at the outset of the opinion: “The Petitioner seeks to have this Court prohibit the Respondents from prosecuting her under three Articles of Impeachment returned against her by the West Virginia House of Delegates.” “The Petitioner has alleged several issues which we have distilled to the essence as alleging that the Articles of Impeachment against her violate the Constitution of West Virginia because (1) an administrative rule promulgated by the Supreme Court supersede statutes in conflict with them; (2) the determination of a violation of the West Virginia Code of Judicial Conduct rests exclusively with the Supreme Court; (3) the Articles of Impeachment were filed in violation of provisions of House Resolution 201.”
In an initial footnote, the court wrote, “We are compelled at the outset to note that this Court takes umbrage with the tone of the Respondents [i.e. the Senate’s] brief, insofar as it asserts ‘that a constitutional crisis over the separation of powers between the Legislature and Judicial Branches’ would occur if this Court ruled against them. This Court is the arbiter of the law. Our function is to keep the scales of justice balanced, not tilted in favor of a party out of fear of retribution by that party. We resolve disputes based upon an unbiased application of the law.”
There was no oral argument, the Senate Respondents taking the position that the proceeding essentially was illegitimate. As the court quoted the Respondents:
“Oral argument is unnecessary because no rule to show cause is warranted. This case presents the straightforward application of unambiguous provisions of the Constitution of West Virginia that, under governing precedent of this Court, the Supreme Court of the United States and courts across the nation unquestionably affirm the West Virginia Senate’s role as the Court of Impeachment.”
“This Court further notes that the Respondents declined to address the merits of the Petitioner’s arguments. The Respondents stated the following:
At the outset, it important to note that Respondents take no position with respect to facts as laid out by Petitioner, or the substantive merits of the legal arguments raised in the Petition. In fact, it is constitutionally impermissible for Respondents to do so, as they are currently sitting as a Court of Impeachment in judgment of Petitioner for the allegations made in the Articles adopted by the House.”
In an introductory observation, the court states:
“Our forefathers in establishing this Country, as well as the leaders who established the framework for our State, had the forethought to put a procedure in place to address issues that could arise in the future; in the ensuing years that system has served us well. What our forefathers did not envision is the fact that subsequent leaders would not have the ability or willingness to read, understand, or to follow those guidelines. The problem we have today is that people do not bother to read the rules, or if they read them, they decide the rules do not apply to them.”
“…Fundamental fairness requires this Court to review what has happened in this state over the last several months when all of the procedural safeguards that are built into this system have not been followed. In this case, there has been a rush to judgment to get to a certain point without following all of the necessary rules. This case is not about whether or not a Justice of the Supreme Court of Appeals of West Virginia can or should be impeached; but rather it is about the fact that to do so, it must be done correctly and constitutionally with due process. We are a nation of laws and not of men, and the rule of law must be followed.”
“… The greatest fear we should have in this country today is ourselves. If we do not stop the infighting, work together, and follow the rules; if we do not use social media for good rather than use it to destroy; then in the process, we will destroy ourselves.”
The court states at the conclusion of its lengthy opinion:
“We have determined that prosecution of Petitioner for the allegations set out in Article IV, Article VI and Article XIV of the Articles of Impeachment violates the separation of powers doctrine. The Respondents do not have jurisdiction over the alleged violations in Article IV and Article VI. The Respondents also do not have jurisdiction over the alleged violation in Article XIV as drafted. In addition, we have determined that the failure to set out findings of fact, and to pass a resolution adopting the Articles of Impeachment violated due process principles. Consequently, the Respondents are prohibited from proceeding against the Petitioner for the conduct alleged in Article IV and Article VI, and in Article XIV as drafted. The Writ of Prohibition is granted. The Clerk is hereby directed to issue the mandate contemporaneously forthwith.”
In their concurring opinion, Acting Justices Bloom and Reger write, “The majority opinion correctly determined that the judiciary has a limited role in impeachment proceedings, that extend to protecting the constitutional rights of an impeached official. However, the majority opinion went beyond that limited role. Specifically, the majority opinion determined that it had authority to decide that two alleged procedural errors invalidated the entire impeachment proceedings. Those alleged errors involved the House of Delegates failure to include findings of fact in the Articles of Impeachment, and in failing to pass a resolution adopting the Articles of Impeachment.”
They went on to observe, “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. Thus, there was no need to address the remaining issues raised. …By addressing the non-dispositive procedural issues, the majority decision is rendering an advisory opinion on those issues. … 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.”
In other news, retired Justice Davis’s counsel have filed motions to delay the Oct. 29 Senate impeachment trial until after the November 6 election and also because he has had a change in counsel. A hearing is set for October 16 in the U.S.D.C. for the Southern District of West Virginia on her motion for a preliminary injunction to stop her impeachment trial.
The jury in the federal-court criminal case against Justice Allen Loughry began deliberating on October 11 and continues to deliberate its verdict on seventeen counts of wire fraud, two counts of mail fraud, two counts of making false statements to federal investigators, and one count of witness tampering.
On the afternoon of October 12, the jury in Justice Loughry’s federal criminal trial convicted him of eleven of the twenty-two counts against him. He was found not guilty on ten counts, and the jury could not agree on one count. His sentencing is scheduled to occur on January 16, 2019.
May 20, 2019 Update
Both houses of the West Virginia Legislature have filed a Petition for a Writ of Certiorari in the United States Supreme Court, arguing that the intervention in the impeachment proceedings against Justice Workman by the West Virginia Supreme Court of Appeals has denied West Virginia citizens their right to a Republican form of government.
On December 27, 2018 a Petition for a Writ of Certiorari to the West Virginia Supreme Court of Appeals was filed in the United State Supreme Court by Mitch Carmichael, who is the President of the West Virginia Senate, by other state senate officials, and by the West Virginia Senate itself. See https://www.supremecourt.gov/DocketPDF/18/18-1189/91482/20190311154548276_FINAL%20-%20Carmichael%20Cert%20Petition.pdf
The Senate would have tried the impeachment of Justice Margaret Workman, as described in earlier blog entries, had it not been prohibited from doing so by the state supreme court.
The Senate’s Petition presents these questions:
In a decision that brought pending state impeachment proceedings to a halt, a panel of acting justices of the Supreme Court of Appeals of West Virginia inserted itself into both the substance and procedure of a process that the West Virginia Constitution entrusts exclusively to the Legislative Branch. In its opinion, the court refused to grant relief under the “Guarantee Clause” of Article IV, § 4 of the United States Constitution, which promises that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government,” because it deemed Guarantee Clause challenges to be nonjusticiable political questions.
The questions presented are:
1) Whether Guarantee Clause claims are judicially cognizable?
2) Whether a state judiciary’s intrusion into the impeachment process represents so grave a violation of the doctrine of separation of powers as to undermine the essential components of a republican form of government?
Similarly, on January 8, 2019, the West Virginia House of Delegates, which impeached Justice Margaret Workman and whose procedures and acts were the reason the state supreme court stopped Workman’s impeachment trial, filed its own Petition for a Writ of Certiorari to the West Virginia Supreme Court of Appeals.*
It presents these questions:
1. Whether the Supreme Court of Appeals of West Virginia’s decision in this case violates the Guarantee Clause of the United States Constitution.
2. Whether the Supreme Court of Appeals of West Virginia properly denied the Motion to Intervene of the Petitioner, the West Virginia House of Delegates.
The respondent waived the right to respond to the Petitions, but said she would respond to the petitions if the Court requested responses.
The Court has requested responses, which are now due on May 24, 2019.
No doubt, more to come.
* I learned only upon reading the Petitions that my law partner Mark Carter represents the House of Delegates.
August 5, 2019 Update
Respondent Justice Margaret Workman filed her timely brief on May 24, 2019. Find it here.
The Reply of petitioner West Virginia House of Delegates was filed on June 6, 2019. Find it here.
On June 12, 2019 the matter was “DISTRIBUTED for Conference of 10/1/2019.”