West Virginia Supreme Court in Crisis

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, co-hosted by The Federalist Society's Federalism & Separation of Powers Practice Group and the State Courts Project, was recorded on Wednesday, August 15, 2018 during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:   Welcome to The Federalist Society's teleforum conference call. This afternoon, our topic is titled "West Virginia Supreme Court in Crisis" and is hosted by our Federalism & Separation of Powers Practice Group and the State Courts Project here at The Federalist Society. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Mrs. Laurie Lin, who is a Columnist and Editorial Writer at the Charleston Gazette-Mail. After our speaker gives her remarks today, we'll move to an audience Q&A, so please keep in mind what questions you have for the topic or for our speaker. Thank you very much for speaking with us. Laurie, the floor is yours.

 

Mrs. Laurie Lin:  Thank you, Wes. Thanks everyone. I'm happy to be here. I'm going to be talking about the controversy on the West Virginia Supreme Court that's been unfolding over the past few months and especially the past few weeks. I am assuming that everyone knows that there is a controversy, but I'm not assuming that you know a whole lot more about that. So a bunch of my presentation will just be kind of a story. And it's always hard to know how much to drill down on these kinds of things. I'm going to try to not overwhelm you with detail. I could go on for hours and hours. There's just so much here, but I'm going to try and zoom in to an appropriate level. So I'm going to first give you a little bit of background on the Court itself, and then kind of start the story of this scandal and controversy and how it evolved and how it was revealed, and then what actually happened in the Legislature leading to the impeachment. And then, talk a little bit about what might happen going forward and what that means for the direction of the West Virginia Supreme Court.

 

      So just to start with background on the Court, it's the State's only appellate court. Five justices. They are elected, as all West Virginia State judges are, and they serve 12 year staggered terms. And the Court going into this was three Democrats and two Republicans. The Court is situated in the State Capitol building in Charleston, which is a beautiful building designed in the 1920s by the architect Cass Gilbert, who later would go on to design the U.S. Supreme Court. That's actually sort of relevant later to the story. And this is significant. The Supreme Court in West Virginia controls -- this is unique. Some people have told me it's unique around the country. I haven't been able to confirm that, but it's certainly very unusual. The judiciary controls its own budget, and it controls it to the extent that there is no input even to the total amount of the budget.

 

      So the Court goes to the Legislature every year and says, "This is the amount of money that we will be spending," and that's it. There's no oversight to that. There's no input on that. They have complete control over their budget. And they have total control over how that money is spent. So that, as you can imagine, is also going to be important later.

 

      The story, the way I see it and the way I would tell it if I were writing it up, starts really back in 2012. I think that's the genesis of this. There was an election that year. There were two seats on the Court up, and one of them was won by Justice Robin Davis, who was a Democrat, who was an incumbent—she was winning her second term. And then, the other seat was a little bit of an upset. Most people thought that another Democrat was going to win that other seat, but it was actually won by a young Republican by the name of Allen Loughry. And at the time he was elected, Loughry was actually a law clerk at Court for another justice. The Court has permanent clerks. They don’t have recent law grads; they tend to be older.

 

      And so he went from a law clerk at the Court to a Justice Elect literally overnight. And I think, looking back, it's clear that that transition was not handled terribly well by a bunch of people, including Justice Loughry himself. But it set up a lot of interpersonal conflicts that we have now seen. Again, they weren't obvious at the time to outsiders, particular between Justice Loughry and Justice Davis, the aforementioned Democrat. And also Justice Loughry and the administrator of the Court, a guy by the name of Steve Canterbury.

 

      So that said, that was 2012. Let's jump ahead to 2016. Beth Walker, a new justice, had just won a seat on the Court, and she's a Republican. So that sets up the -- there were three Democrats and two Republicans. She was supported by the business community. Loughry and Walker, Loughry got Walker on his side and appears to have convinced one of the Democrats to team up with them to fire this Court administrator, Steve Canterbury. Justice Davis opposed the firing, but it was three to two. So Canterbury, I think it's fair to say, did not react well to being fired. It was rumored that he said to Loughry, "I will destroy you," at this meeting, although he denies that. But what we know now is that Steve Canterbury went to the press, and that began the series of controversies that have culminated this week in four of the justices being impeached, now two of them have resigned. And so the whole Court has been affected. So that's the background.

 

      So what did Canterbury go to the press with? What was the dirt that he had? Well, primarily it was lavish spending on office renovations, and that's the one that has really captured the attention of the public. I think it's fair to say that a culture had developed at the Court, and we don't know when it developed or how far back it goes, but it's pretty clear that the justices had free reign to renovate and decorate and personalize their offices exactly to their individual tastes, down to flooring, cabinetry, lighting, everything. And this was really expensive. This is an old, historic building. It's a workplace, so that's makes everything more expensive.

 

      But even beyond that, some of these renovations were really kind of eye-popping. Justice Davis' office, the tab was over half a million dollars and some of her -- she had a $28,000 rug, $60,000-worth of glass countertops, $25,000 of marble baseboards. And, again, it's a very distinctive look. It's not like she just came in and did a few things. She gutted the entire office, and it's kind of a very space-age, glass-and-metal-everywhere kind of affair.

 

      Justice Loughry was the second most expensive. His was north of $300,000, and Justice Loughry's renovation included the now-infamous $32,000 blue suede couch, which you may have heard about. You can Google pictures of it. It looks kind of like something you'd buy at Pottery Barn but somehow it cost $32,000. He also had a floor medallion put in on the floor of his office in the shape of West Virginia. Each county is a different kind of exotic wood. His home county is blue marble. It's beautiful, just lovely, but it cost $7,000 or $8,000. And so that has gotten a lot of attention, too.

 

      The three other justice's renovations were substantially less expensive, I would say, but they are still in the six-figure range. So that really caught the attention of the public and the particular TV reporter, who Canterbury had gone to. It kind of dribbled out over weeks, and public outrage grew. I think it's always interesting with spending, I think people sometimes roll their eyes when it's $100 million dollars in some kind of a pension fund. But when you get down to a couch that cost $32,000, people buy couches. They know how much a couch usually costs. And so, it’s a kind of thing that people can really wrap their minds around.

 

      And so, like I said, things continued to drabble out. I think Loughry made it worse for himself when he kind of denied that he knew a lot of about it and kind of put it back on the court administrator and said, "Well, I didn't approve any of this." And it wasn't terribly credible because we're talking about a medallion on his floor with his home county outlined in granite. It wasn't super credible that he didn't have anything to do with it or that it was somehow foisted on him. And then, Canterbury produced emails that made it clear that Loughry had actually been very involved in his office renovation.

 

      So it kind of spiraled. Loughry, eventually, was alleged to have taken some court pieces of furniture home to his personal office, including one of the five original "Cass Gilbert" desks that were maybe/maybe not designed by Cass Gilbert, but dating back to the time that the building was designed and, obviously, very historically significant—not something that you just load onto a U-Haul and take home to your house. And then, it was alleged that he also used court vehicles for some personal travel—actually, extensive personal travel, allowed his family to use court computers. So these are all separate things from the renovation but kind of piled onto it.

 

      And then, the final issue that came up is that four of the justices are alleged to have circumvented a state law that caps pay for senior-status circuit judges. Sometimes these senior judges come and fill in on trials when they're needed to, and there's a law that caps how much they can be paid. They can't be paid any more than active judges. And it looks like the Supreme Court justices figured out a way to kind of get around that. I'm not sure -- to me, that one is a little bit less eye-popping just because it's not something that anyone did for any personal gain, and arguably they did it to keep the judicial system running and ticking along. But on the other hand, it was pretty clearly a concerted effort to circumvent a law that the Legislature had passed. And so, that became kind of an ancillary issue, then, to the entire impeachment situation.

 

      So this continues to build and build. And then, in June, the feds get involved. Loughry was indicted by the U.S. Attorney for the Southern District of West Virginia on 20-some counts, including misuse of state property for taking the desk home, and then wire fraud for the vehicle and gas purchases. And then, more troubling, lying to federal investigators, because apparently when they brought him in to ask all about this, they alleged that he lied to them. And then, witness tampering, which is a little bit murkier exactly what happened with that. But something involving potentially tampering with testimony by someone else on the Court, an employee on the Court.

 

      So Justice Loughry has plead guilty -- I'm sorry, not guilty. And he has a trial set for October. And then, the other justices, the four remaining ones, voted to suspend him from the Court. So he is still a member of the Court, but he has been suspended without pay.

 

      In July, then, so the House of Delegates decided they were going to do impeachment hearings. And they included the entire Court in that. Most people thought, well, they're just going to focus on Loughry; that's the biggest one. But then, there's also all this other spending. So maybe they'll get to them. Then in July, right before the House was about to begin impeachment hearings, another justice, Justice Menis Ketchum, who is a Democrat, but I would say it's fair to say that Ketchum was the swing vote. He had certainly drifted to the right, I think, and was probably like the dead center of the Court. Anyway, Justice Ketchum resigned.

 

      And a few weeks ago, he plead guilty to, I think, one charge, maybe two charges of wire fraud for improper use of a state vehicle and a fuel card. He was using, I think, his state car to commute back and forth to work, and that was said to be improper. The rumor is that Justice Ketchum is -- so he plead guilty. He's believed to be cooperating with the federal investigation that the U.S. Attorney has strongly hinted is still ongoing. So whether that means another justice or justices are being looked at or potentially more charges against Justice Loughry, we're not sure. But that investigation is still open and ongoing. So the Court is now down to four justices, including Justice Loughry, who is suspended, so really three active justices.

 

      So what happened with the impeachment? So the West Virginia Constitution allows for "any officer of the state to be impeached for," and I'm quoting, "maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor." So it's a little bit more extensive a list than the U.S. Constitution. But maladministration would be the main word, I think, that would be appropriate there. And, of course, it's not defined anywhere. So the question is what of these things is maladministration?

 

      And in a nutshell, the remaining four justices were impeached for various things. There were a total of 14 counts brought, and I think 11 of them passed. And, of course, I should say impeachment here is just the first step. Just like in the U.S. Constitution, the House impeaches, and then once that's done, then the person has a trial in the Senate. So now it goes over to the West Virginia Senate for a trial. And then, if they are found guilty, they are removed from office and prevented -- barred from seeking office in West Virginia ever again.

 

      So Loughry was impeached for seven things—the personal travel, the furniture, and the lavish office. Davis, Justice Robin Davis, the Democrat, was also impeached for her office spending. The other two justices were exonerated, I guess is the word, on the issue of their office spending. That article did not pass against them. So the other two, Justice Margaret Workman was impeached for paying the senior judges too much issue, as were Loughry and Davis. And then, Justice Walker, the newest justice, the other Republican, the only thing that she was impeached on was this kind of catchall category that they were also all impeached on, which is kind of a culture-of-the-court category that basically says, you all should have held each other accountable and you didn’t. You didn't have any policies for office spending, you didn’t have any policies for automobile use, gas use. And so, like I said, it's kind of a culture-of-the-court count. And that was the only one that they got Justice Walker on.

 

      The day after that -- so that happened in the wee hours of Monday night, I guess. Tuesday morning, Justice Davis resigned. And it's significant that she did that on Tuesday morning, August 14th because August 14th was the last day for the Secretary of State to call for a special election -- or not a special election, for her seat to be filled by an election on the ballot in November, in the general election. If she had waited until today or any later, the Governor, Governor Justice, who's a Republican, would appoint someone to fill her seat, and that person would fill her seat until the next time for electing justices, which would be May of 2020. So this was seen as an act of defiance of the Republicans by Justice Davis because she wanted the voters to essentially choose her successor in November versus the Governor getting to appoint her successor for another two years.

 

      So let's see, where are we now? The three remaining justices, Justice Davis having resigned, Justice Loughry, Justice Walker, Justice Workman have been impeached. They face a trial in the Senate. My personal suspicion, and I think many people share this, is that now that Justice Davis has resigned, there's not as much momentum for impeaching the other two other than Loughry. I think Loughry is obviously in the most trouble. That's been true from the very beginning. I think his goose is probably cooked, to use a technical, legal term. I think if he doesn't resign, he will certainly be removed, and that may be the least of his worries given that he's facing federal criminal charges. I think his primary concern, now, is probably staying out of jail. But that said, he is still head justice on the Court. He has not resigned, and they would need to have a trial and remove him if he does not resign.

 

      I think the Senate, if they can find a way to do it, may try to get out of actually having trials for the other two. I'm just not sure that that's something that the Senate wants to have thrust on them in late September and October, especially given that half of them are up for reelection in November, and I'm just not sure that's going to be something that they want on their laps.

 

      So where is the Court? How do these seats get filled? Immediately, the Court starts hearing cases again in September. These two seats that are currently vacant will be on the ballot in November, as I said. But in the meantime, the Governor has -- he will appoint two people to serve in those seats until January. So the Governor will have people of his choice. They get recommended by something called the Judicial Vacancies Commission. So he doesn't have carte blanche to appoint anyone. But he will pick two people to serve temporarily.

 

      One person who has expressed interest and who will run in any event is Congressman Evan Jenkins, who is a sitting Republican congressman giving up his seat. I think he has an excellent chance of both getting appointed in the near term and winning an election in November. And then, it will be a crowded field. There are already four or five people who have filed to run. And the last time there was a Supreme Court election in West Virginia, a lot of money was spent. And so, I imagine things will ramp up quite quickly.

 

      And the other complicating factor is that they don’t have partisan elections for judges anymore. So that means two things. First, it means there aren't primaries. So you don’t whittle things down to one Republican and one Democrat. And it's also harder for voters, I think, to differentiate exactly what's going on with people. I, and many others at the time, wondered why Republicans were witching to non-partisan judicial elections right at the time when West Virginia was becoming a red state. It didn't seem to make a whole lot of sense to me, and I think that that will come back to bite the Republican Party for making that change. Although, I think they did it with good intentions, I'm not sure that politically it was the best thing for them to do.

 

      I think I'm going to stop there, and hopefully I've given you guys a sense of where we are right now, but certainly happy to take questions about anything that's happened up to now and also things that might be happening going forward. So I'll throw it back to you guys.

 

Wesley Hodges:  Thank you very much, Laurie. Let's go ahead and move to audience questions. It looks like we do have one question out of the gate, so, Laurie, if you're ready, we'll turn to our first caller.

 

Mike Daugherty [sp]:  Hi, this is Mike Daugherty in Atlanta. I'm just curious—I only came in about a minute or two late, so I don't think you touched on this—but how is the controversy about these judges in their judicial decision making? I just find it fascinating, but it makes sense that the public is upset about expenditure, which it should be, but there's been no uproar about their behavior inside the laying of actually being qualified judges and how they did their job outside of lavish spending or abusing that kind of process. I'm just curious if West Virginia has always been considered a rogue state, so to speak.

 

Mrs. Laurie Lin:  Yeah, I think that is a fantastic question, and it's something that I have observed through that. You're 100 percent right. Exactly zero of these things implicate any decisions that they've made. There's been no allegation that they're corrupt in their judicial decision-making, that they're not impartial. Absolutely zero.

 

      So the normal reasons that you would think a judge might be impeached because they are a bad judge, bad at their job of judging, absolutely zero of that applies here. and I should say that with regard to Robin Davis, the Democrat, there has been in the past -- ABC News did a series on her not recusing herself in the $90 million matter where her husband sold a $200 million Learjet to one of the attorneys in that case. So I do think some of the Republican desire to get Justice Davis, there's a little bit of that overlaying, kind of the enmity that Republicans feel for her. Having said that, that did not come up at all on the floor of the House. That was never mentioned. It was mentioned outside the chamber, certainly.

 

      But I do think that is a very -- it's a fair question. On the other hand, she spent $50,000 on glass countertops. And so, that's the kind of thing that captures the public's imagination, probably more so than some convoluted failure-to-recuse type of issue. And I think it's fair to say that does reflect poorly on the judgment that would lead one to think that that would be an appropriate expenditure of taxpayer money in a state where the median income is $43,000.

 

      I do think your point is well taken, that this is not what you would usually think of impeaching a judge for. I think that's very fair to say.

 

Mike Daugherty:  Well, I think the lack of education of the population on judicial proceedings makes it very unlikely they're held accountable. And I think they know that. I mean, I've seen some phenomenal judges, and I've seen some appalling taffy stretches of discretion beyond ones comprehension. And then, everyone sort of just -- it's like a protection racket. And what these judges get away with is utterly incredible.

 

      So I guess if you want to stay in your lane and you're going to be corrupt, you might want to do it in more sophisticated matters where the general population doesn't have it hit right over their head, like spending 60 grand on a glass countertop. It's interesting. It's a fascinating process, and I'm very anxious to see where this goes. It's interesting.

 

Mrs. Laurie Lin:  Yep. Agreed.

 

Wesley Hodges:  Thank you very much for your question, caller. Looks like we do have a couple more questions. Thank you for dialing in. We will move to the next one.

 

David Burge:  Yes, this is David Burge, also in Atlanta. I know Governor Justice had sort of controversial election a couple of years ago, and then West Virginia still had a very controversial Senate primary. Is this tied up in that sort of politics at all, or is this sort of a stand-alone event?

 

Mrs. Laurie Lin:  Yeah. The issue of Governor Justice is really a sore point, I think, especially for Democrats, although he's really not very popular in either party. He was elected in 2016 as a Democrat after having been a Republican, apparently, for most of his adulthood. Switched parties, ran as a Democrat, beat several Democrats in a primary, and then beat the Republican nominee. Then, after serving as a Democrat governor for, I think, six months, maybe not even, he switched parties. Republicans control the Legislature, and I think his calculation was I'm going to get more success with the Legislature if I'm the same party as them. They don’t feel like they're fighting me on a party basis.

 

      I think it's fair to say that has not been as successful of a strategy as he hoped. I think Republicans are very suspicious of him. They would like him to do Republican things, if he says he's a Republican. Democrats, on the other hand, are furious.

 

      But the way that that impacts this process, of course, is that he now is a Republican. And so, everyone assumes that the people that he would choose to fill these seats are going to be Republican types. Now, I'm not sure that that's a complete -- I'm not sure that's a totally safe assumption because the Governor is -- I don't want to say he is Trumpian in every way. But he is similar to the President, I think, in that he's very unpredictable. He's not a career politician. He doesn't think the way that career politicians do, and it's very possible that he could nominate somebody unexpected and not welcome to Republicans. Although, rumor is that they are exerting some pressure on him to, for example, to choose Evan Jenkins, the Republican congressman to fill one of the seats temporarily.

 

      So, yeah, I would say that the contentious relationship of both parties with the Governor is kind of a background thing going on here. Republicans, I think, have a fair point. Democrats are very upset that Justice might be appointing people, and that has led to a lot of, sort of, I think, overblown talk about, "Oh, this is a coup. You're replacing the entire court with people of your choosing." And Republicans are saying, "Well, this is the guy that you guys elected not even three years ago. So this guy's the governor because of you. So maybe pipe down a little bit on how horrible it would be to have this guy choose some temporary people on the Court."

 

      But, yes, that has been in the background. As far as the Legislature, I think a lot of people are aware that West Virginia changed from blue to red almost overnight, really, really quickly. And the Legislature's now, after being in Democrat hands for nearly 85 years, in 2014 switched to Republican and has gotten more Republican since then. And so, it's been a disorienting time. The Court has also changed pretty rapidly from being nearly all Democrats and a solidly liberal Court to being more Republican. And I think that's disorienting. And so, that's part of why I could've talked for three hours about this. There's a lot of nuances to that, and it does make it particularly interesting.

 

Wesley Hodges:  Thank you, caller, from your question. Let's go ahead and move to our next caller.

 

Bob Zadek:  Good morning. This is Bob Zadek in San Francisco. Thank you for your presentation. Can you put the spending in context? Were these justices spending dramatically more than their predecessors? When it seems to me that an institution has a budget that nobody oversees, this couldn’t have been the first time that judges felt free to spend what they want. Is it merely a difference in degree? Or did the music stop and they didn't get a chair?

 

Mrs. Laurie Lin:  Yeah, thank you. I think that's also a really good question. And it's not entirely clear. It's not even entirely clear how much these folks spent on their offices. The only justice that we have total receipts and documentation for is Justice Davis, the half a million dollar one. I don't think it's the case -- I have not seen any evidence that this goes back—this culture of having your office sort of, I jokingly say it's like Design Star—I don't think that goes back 20 years.

 

      But I will say this, Justice Walker, the newest justice, when she came in in 2016, she renovated her office to the tune of, I think it was $150-, $130,000. She got criticized for that because the office had been renovated completely by her predecessor only seven years prior. And so, the thought is, well, if it was just renovated seven years ago, why do you need to then spend $100,000 plus when you have come in? She has not responded, but I suspect her response would be, "Justice Benjamin, my predecessor, had an Egyptian themed office." I've not seen pictures. I don't know what that means, but the office had an Egyptian theme.

 

      So imagine yourself, you've just been elected a statewide office. You've won a contentious, possibly, election, and you come in and you say, "Well, I'm now a member of the highest court in West Virginia. I come in, and I'm expected to just sit in this Egyptian-themed office? I don’t like Egyptian theme. My taste is more…" who knows, "southern traditional," say. And so, it kind of snowballs on itself when each justice comes in and makes wholesale changes, including flooring, built-in cabinetry.

 

      I think whenever it arose—and I suspect it was in the last, say, 15, 20 years—the culture is you get it exactly the way you want it, and then you don’t have to put up with whoever had your office before, whatever their taste was. And so, I think it kind of compounds on itself. What I've written a column about this last weekend, I think clearly the solution is everybody gets the same floor, right? Everybody gets the same cabinets. If you want to personalize it to your taste, you can buy your own desk, your own chair, your own sofa. But where the real cost of this is ripping out everyone else's extremely personalized furnishings and then putting yours in without considering that then yours are going to be ripped out a few years down the road.

 

      I do think it is interesting—some of you are probably familiar with federal, Article III judges, and my understanding is they do have quite a bit of free reign when it comes to how their chambers look, even things like carpeting and draperies and built-in cabinets. I'm not necessarily defending all of that either, but those are lifetime appointments. Certainly, Supreme Court justices are more like renters than owners.

 

      But I do think it's fair to say that this maybe calls into question what is appropriate spending for furnishings on your office, not only for the West Virginia Supreme Court, maybe other officers in West Virginia, anyone who has an office that is paid for by the public, but is not a public space.

 

      This has come up in the West Virginia context. The State Senate spent $800,000 on a public bathroom renovation, and some Democrats have said, "Well, if we're impeaching people for spending $500,000 on the Supreme Court, why don't we impeach the people who decided to spend $800,000 on public bathrooms?" Well, not necessarily to defend the $800,000 there, there's still an argument for frugality everywhere. But having said that, public bathrooms are at least enjoyed by the public. Exactly no one other than Robin Davis and her staff could enjoy her $50,000 glass countertops. It's public spending really, essentially, for private enjoyment.

 

      But, anyway, I'm sorry, I've rambled far from your question. I don't think we know exactly how far back this goes. I suspect that it stops immediately, and new policies will prevail going forward.

 

Wesley Hodges:  Thank you, Laurie, and thank you, caller, for your question. Let's go ahead and move to our next question.

 

John Dingess:  My name is John Dingess. I'm an attorney in Colorado. I'm an ex-patriot of West Virginia. I did dial in just a few minutes late and perhaps that's the reason for my confusion, but I ask for some clarification. Has the West Virginia House, in its entirety, voted for impeachment? Or is this still just the recommendation of the Judiciary Committee?

 

Mrs. Laurie Lin:  Thanks for your question, John. Yes, the Judiciary Committee held hearings. It was kind of -- they had witness. The star witness was Steve Canterbury, the court administrator, and they recommended I think 14, maybe 15 articles of impeachment. And then, on Monday of this week, those articles went to the full House, and the full House of Delegates spent the entire day, and I think it was almost the stroke of midnight when they finally voted on the last ones. They debated them. And I think it was 11 of them that passed, and maybe 3 failed, and 1 was withdrawn. There was hours of debate. The votes were generally fairly close, except with regard to Loughry. A couple of Loughry's were unanimous, I believe.

 

      So, yes, it did go to the full House. It was interesting, I think one question that a lot of people say is did it get out of control? How did all four of them end up getting impeached when there's certainly a degree of culpability difference, I think, between say Justice Walker who's only been on the Court for a year and a half, and Justice Loughry who is facing federal criminal charges. And I think the answer to that is they are on a continuum. Justice Loughry is in the most trouble, the Republican. Justice Walker, the other Republican, is in the least trouble. The three Democrats were in the middle. And so, I think if you're a Democrat in the House, you have a very strong incentive to say, "Let's just cut this off at Loughry," right? Only, you heard them coming up with lots of kind of artificial tests: let's only impeach the people who have been indicted. Well, of course, that would be Loughry because the other one who's been indicted, Menis Ketchum, has already resigned.

     

      And then, the Republicans had every incentive to kind of push it a little bit further because the next most culpable, certainly, was Justice Davis, the one the Republicans most would have liked to get rid of. And so, the difference in incentives there I think explains -- so that explains why they went after Loughry. Certainly everybody agrees pretty much on him. Then the Republicans wanted to cut just a little bit deeper to get Davis. Then I think you get to the issue of the senior judicial judges getting overpaid, and I think it was just really hard for people to look at that and say, well, they broke the law, but let's not impeach over that. And so, that swept then the next two in. and then, I think Republicans were very uncomfortable about impeaching everybody except Beth Walker, the remaining Republican, and I think that, unfortunately, is what kind of swept her in with everyone. I think Republicans were very worried that if they didn't include her, that they would get criticized for impeaching all three Democrats, but not Beth Walker.

 

      And so, I think if it looks like things got a little bit out of control, would they have impeached anyone over this senior judicial pay issue in a vacuum if the office spending hadn't been an issue ever at all? I don't think so. I think that they would get a slap on the wrist or the Legislature would call somebody in and yell at them and insist that they revise their policies. I don't think that in a vacuum that that's an impeachable offense. But it's the kind of thing when once you get the ball rolling, I think it's almost just easier -- for them it was almost easier to just sweep everybody into it. And now, it's the Senate that will have to, I think, draw distinctions. And I think they will. I think they have an incentive to.

 

John Dingess:  Thank you. It appears from what I've been able to discern from a distance that the justices tried to throw the court administrator under the bus, so to speak. What's the view of his credibility?

 

Mrs. Laurie Lin:  Yeah, that's also a good question. Clearly, there's a lot of animus. And that's why I went back to the origin of all this. I think with Justice Loughry coming on the Court, there's clearly a lot of interpersonal conflict between Justice Loughry and the court administrator, Steve Canterbury. Like I said, Canterbury was the star witness in the hearings, testified for a solid day. It's hard to say without hearing from Justice Loughry—and we really haven't. It's possible, I suppose, that if you were to hear Justice Loughry's side of it, I'm sure it would be more sympathetic. Is it possible that he has some sort evidence that makes this look totally different and totally fine for him, even to the point of exonerating him, I suppose that's possible.

 

      But I think Steve Canterbury came off as somebody who clearly has a strong grudge, a personal dislike for Justice Loughry. Clearly, he really likes Justice Davis. They're very good friends. I think he's more ideologically aligned with her. But I did not find him to be somebody with just this out-of-control vendetta. I thought he was pretty credible. And if nothing else, it's certainly a lesson in unintended consequences.

 

      If Steve Canterbury had not been fired by Justice Loughry, we would not be sitting her talking about this. I don't think we would know anything about the spending in these offices. This would not be an issue at all. It was 100 percent Steve Canterbury getting fired, and then going to the press. And so, let that be a lesson to everyone out there, I guess, how not to handle personal issues, particularly if you have something to be embarrassed about that these people might go to the press over because it really is 100 percent traceable back to that interpersonal dispute.

 

John Dingess:  Thank you.

 

Wesley Hodges:  Thank you, caller. Let's go ahead and move to our next question.

 

Mac McClure [sp]:  Hi, Laurie. This is Mac McClure. I'm a law student from Wheeling, West Virginia. And I know there is some sort of a constitutional provision that allows the West Virginia Supreme Court to set its own budget, and I was wondering how exactly that works, and whether maybe they were acting—or at least some of them were acting—within their constitutional authority when they were making these outrageous expenditures. Thank you very much.

 

Mrs. Laurie Lin:  Yeah, thanks. I touched on this at the very beginning of the call. You might have missed it. They do have total control of the way that it works right now. In a sense, they can go to the Legislature and say, "This is what we will be spending next year," and nobody has any power to change that.

 

      Now, as you may know, because of this controversy, there's a constitutional amendment on the ballot for this fall that will change that, that will give the Legislature control, at least oversight—I think it will be similar to the way it works on the federal level, which is the chief justice basically requests a budget and Congress usually okays it after maybe asking a few questions. And, of course, judicial pay I think will not be subject to reduction by the Legislature, the same way it is on the federal level. They won't be able to just say, "Well, because you ruled in a case and we don’t like you're ruling, we're going to reduce your salary." That won't be allowed. But as far as the total judicial budget, that will come under legislative oversight, and like I said, that's on the ballot this fall. I don't think anybody who has not been living under a rock is going to vote against that. So that will pass. So this will change going forward after November.

 

Wesley Hodges:  Looks like we do have one more questions in the queue. Let's go ahead and move to that caller.

 

Bob Zadek:  Hi, this is Bob Zadek, again. I didn't want to take up too much time with my first question. A couple of smaller questions: are these justices subject to disbarment under state law governing attorney's rules for what they have done? And the second part of my question is is there any other criminal activity threatened against any of the judges? And the third part is the senior judges who may have been overpaid, any discussion about recovering their overpayment, or is it not recoverable?

 

Mrs. Laurie Lin:  I'll take those in reverse order. I don't know. There's has not been any discussion about recovering the money that they were overpaid. I don't know if it would be recoverable. I don't think there's a lot of energy to do that because, essentially, these senior judges were just getting paid for work that they had done. The problem was that this law that the Legislature passed, which may have been ill-considered, was just limiting that, just cutting them off. So they were hearing cases and not able to be paid for it, the way that it was structured. So I don't get the sense that there's any energy to kind of go after them.

 

      Your second question, are there any more possible criminal charges to come, we don’t know. The U.S. Attorney has been very tightlipped and his office has been also very tightlipped. There's not a lot of leaks coming out of there. I will say that there are rumors—I don't want to discuss stuff on the basis of rumors—but there're certainly rumors that his investigation is continuing and is focusing on one or more other justices, and it may not be over.

 

      I think, at the beginning of this, there was a suggestion that he was -- that the U.S. Attorney was pressuring Justice Loughry to resign, and this all was kind of going to be -- that the way it was going to go down is Justice Loughry was going to resign from the Court in exchange for getting off on some of the more serious charges. That clearly didn't happen. Justice Loughry has obviously decided to fight this. And so, it'll interesting to watch the trial if there is a trial, which it appears that there will be, because that will be the first time that we will actually hear from Justice Loughry. If not him himself, certainly his defense of all this. He's really gone very quiet ever since the indictment came into play. So, yeah, we'll definitely be watching that.

 

      You asked about disbarment. The state body that governs, you know, the lawyer disciplinary committee, they have moved to disbar Justice Loughry. That's on hold, I believe, pending the outcome of all this other procedural stuff. But that was part of his being suspended from the Court. I believe he's also suspended from the practice of law right now, not that he would be practicing. He's still technically a justice of the Court. But that's the only one of them who is facing that kind of disciplinary action.

 

Wesley Hodges:  Looks like we do have one question here. Let's go ahead and turn to that caller.

 

Al Agricola:  Yes. My name is Al Agricola. I'm calling from Montgomery, Alabama. My question is when is the Senate likely to set the matters for hearing, and what sort of prognostication could you make about the outcome in the Senate?

 

Mrs. Laurie Lin:  Thanks. Yeah, the Senate is, I think as I speak, hammering out rules and procedures. They haven't done this in ages. The last impeachment was in 1989 of, I believe it was the State treasurer. And so, they're in the process right now of deciding how this is all going to go down. One problem that they've run into is the Constitution says that the presiding officer in a Senate impeachment trial will be the chief justice of the West Virginia Supreme Court. Of course, that's problematic if the chief justice is actually being impeached. And so, they're figuring all that out.

 

      I think they've said early September is when they would start the trial. If they try all three, there will be three separate trials. So they'll first have to decide what order they're going to do it. As I said earlier, I'm a little bit skeptical that they'd end up trying all three. I'm pretty sure they will try Justice Loughry if he doesn't resign first. The other two, my guess is that they find some way to censure them, I think they can technically reject the article of impeachment, like in other words refuse to even consider it. Just vote it down as an initial matter. I could see them doing that. I'd be really surprised if all three even went to trial. I'd be hugely surprised if all three were actually removed. My bet would be at the end of this that the two women justices remaining, stay on the Court; Justice Loughry either resigns or is removed, and that we go forward with three new justices and two from the old set of five.

 

Wesley Hodges:  Thank you, caller, for your question. It looks like we are approaching the top of the hour. I do want to make sure we have a little bit of time in case, Laurie, do you have any final remarks for us?

 

Mrs. Laurie Lin:  Just one more thing. A big question overhanging this is what does this mean for the ideological direction of the Court going forward? And I think that that's really hard to say. It's really maybe the most important question to practitioners in West Virginia. Certainly, you lose one of the most conservative justices, one of the most liberal justices, anything could happen in this election in the fall.

 

      One really, really interesting case to watch that the conglomeration of justices that's cobbled together in September is hearing the Don Blankenship case. Probably many of you remember Don Blankenship, the coal company owner who recently got out of prison, ran for the Republican Senate nomination, lost, is now trying to get on the ballot as a third-party candidate. The Secretary of State told him he can't get on the ballot because West Virginia has what they call a 'sore loser' law, and he has asked the Supreme Court to order the Secretary of State to put him on the ballot. So that all will be going down immediately when the Court convenes in September. That has huge implications for the Senate race for Senator Manchin's Senate seat, which in turn has implications for control of the Senate. So these are not purely local issues, and that will certainly be one of the big cases to watch in September.

 

Wesley Hodges:  Thank you very much, Laurie. It looks like now we're at the top of the hour. We really do appreciate you making the time today.

 

Mrs. Laurie Lin:  Sure thing.

 

Wesley Hodges:  So on behalf of The Federalist Society, I want to thank you for the benefit of your valuable time and expertise. We welcome all listener feedback by email at [email protected]. Thank you, everyone, for joining us. This call is now adjourned.

                                         

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.