Impeachment of the Supreme Court of Appeals of West Virginia, 2018

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The Impeachment of the Supreme Court of Appeals of West Virginia, the highest court in that state, is a unique event in American history. While demands for such action are relatively common throughout the United States, and the removal of state judges by other means is not uncommon throughout the Union, the scandal of this proportion and the reaction to it is something new.

Background[edit]

In late 2017, WCHS-TV and other media outlets began reporting on spending by the Supreme Court of Appeals of West Virginia. Eventually, an investigation by the office of the United States Attorney for the Southern District of West Virginia was launched,[1] and the court was audited by the state's legislative auditor.

Investigation[edit]

The legislative auditor found multiple irregularities in the court's practices including undocumented[2] and commuting use of court-owned vehicles and the improper purchase of gift cards.[3] Significant public attention was centered on spending for expensive office renovations, including a $32,000 couch for Justice Allen Loughry, and Loughry's use of an original Cass Gilbert-designed desk from the State Capitol at his home.[4] Justice Menis Ketchum was reported to have used a state vehicle to travel from his home in Huntington to work, and for several vacation trips, without paying tax on the fringe benefit.[5] Justice Ketchum then had his income tax amended to pay the back tax and repaid the state over $1600 for the issue.

Early in 2018, the other four justices voted to remove Loughry from his position as chief justice when they became aware he had withheld the existence of a federal grand jury subpoena from them. On June 6, 2018, Loughry was charged with 32 violations of the state Code of Judicial Conduct.[6] The Supreme Court, reconstituted with four circuit judges and a retired circuit judge appointed for that purpose, suspended Loughry without pay until further notice as a result of these charges.[7]

On June 20, 2018 (West Virginia Day), Michael B. Stuart, the United States Attorney for the Southern District of West Virginia, announced a 22 count indictment against Loughry. He faces nearly 400 years in prison.[8]

Impeaching the entire court[edit]

On June 26, 2018, the West Virginia House of Delegates assembled in special session to consider Loughry's or any other justice's impeachment.[9] The matter was referred to the House Judiciary Committee. In the course of its investigation, additional issues were discovered relative to splitting the pay of "senior status judges", who are retired judges filling in certain circumstances and who can make no more than 25% of an active judges' salary, between IRS Form W-2 and Form 1099 in order to circumvent that rule; and of the court purchasing "working lunches" at taxpayer expense on a regular basis.[10]

On July 11, 2018, Justice Ketchum resigned from the court. On July 31, 2018, he entered a guilty plea in the United States District Court for the Southern District of West Virginia in Charleston to one count of wire fraud.[11] Because of his guilty plea to a felony, the Supreme Court of Appeals annulled Ketchum's license to practice law in the state of West Virginia on October 4, 2018.[12]

On August 7, 2018, the House Judiciary Committee recommended that all four remaining justices be impeached. Loughry for lack of oversight, improper removal of the desk to his home, improper use of a government computer, improper use of state owned cars for personal travel, overspending on his office decorations, the overpaying of "senior status judges" and lying to the Legislature; Chief Justice Margaret Workman and Justice Robin Davis for overpaying of "senior status judges", lack of oversight, and overspending; and Justice Beth Walker for lack of oversight and overspending.[10] On August 13, 2018, the full House of Delegates impeached the four remaining members of the court. On August 14, 2018, Davis retired from the court, effective August 13, 2018.[13] The justices, other than Justice Walker who has already been tried, awaited trial on the impeachment in the West Virginia Senate.[14]

Trials[edit]

The West Virginia Senate met on Monday, August 20, 2018 to receive the articles of impeachment from the House of Delegates and approve the rules governing the impeachment trials. In addition, the Senate confirmed that Cabell County Circuit Judge Paul Farrell, who had been temporarily designated by the Supreme Court to fill in for Loughry, was to preside over all of the trials. The Senate also voted to try each of the justices separately with Farrell determining the order.[15]

Pretrial hearing[edit]

On September 11, 2018, the West Virginia Senate debated and voted on a number of preliminary issues for the four trials. Several motions had to do with Judge Davis, who had already retired. It was voted to try her anyway by votes of 15-19 on several resolutions. Then the Senate "dissolved" into a court of impeachment and set trial dates and other housekeeping matters. A resolution substituting censure for a full trials for Workman and Walker was ruled out of order.[16]

Trial of Justice Walker[edit]

Justice Walker's impeachment trial began on October 1. The trial concluded on October 2 with the Senate voting 32-1-1 not to remove her from office, with only Senator Stephen Baldwin of Greenbrier County voting for conviction and Senator Ryan Weld of Brooke County absent. The Senate followed by agreeing, by voice vote, to publicly "reprimand and censure" Justice Walker for her actions in the scandal.[17]

Trial of Justice Workman[edit]

Justice Workman's impeachment trial was scheduled to begin on October 15. However, on October 11, the Supreme Court of Appeals, temporarily reconstituted with five circuit court judges, issued an injunction blocking the impeachment trial, stating that the articles of impeachment presented by the House of Delegates against Workman violated the separation of powers doctrine and, therefore, the Senate has no jurisdiction to try Workman on the impeachment. In addition, Judge Farrell stated that he would not preside over Justice Workman's trial while the injunction was in place. The Senate met on October 15 and adjourned with no final decision on how to proceed being made. Senate President Mitch Carmichael announced after the session had adjourned that the Senate would ask the Supreme Court of Appeals to reconsider their decision, however, in light of Loughry's resignation, further impeachment efforts against Workman are doubtful.[18][19][20]

Trial of former Justice Davis[edit]

Former Justice Davis' trial was scheduled to begin on October 29. However, the reconstituted Supreme Court of Appeals ruled on October 25 that the injunction blocking Justice Workman's trial also retroactively applied to Justice Davis' and Justice Loughry's trials.[21] In light of the court's decision and Loughry's resignation, further impeachment efforts against Davis are doubtful.[22][23][24]

Trials of Justice Loughry[edit]

Impeachment[edit]

The impeachment trial for Justice Loughry was set for November 12. However, the reconstituted Supreme Court of Appeals ruled on October 25 that the injunction blocking Justice Workman's trial also retroactively applied to Justice Davis' and Justice Loughry's trial.[25] Delegate Andrew Byrd of Kanawha County, who is serving as one of the impeachment managers, is asking Gov. Jim Justice to call the House of Delegates into special session on November 11-13 to draft new impeachment articles against Loughry based solely on his federal criminal convictions (see below).[26]

Federal Criminal Trial[edit]

Justice Loughry’s federal criminal trial began on October 2. This trial concluded on October 12 with Loughry being convicted of seven counts of wire fraud, one count of mail fraud, one count of witness tampering and two counts of lying to the FBI. The jury found Loughry not guilty on nine counts of wire fraud and two counts of mail fraud while they deadlocked on one count of wire fraud. Loughry, who remained on the court until resigning on November 12, 2018, was scheduled be sentenced on January 16, 2019, however those proceedings are now on hold.[27][28]

Aftermath[edit]

Justice Ketchum's seat and Justice Davis' seat will ultimately be filled in separate special elections which will be held alongside the 2018 general election on November 6, 2018. On August 25, 2018, Governor Jim Justice appointed Tim Armstead, former Speaker of the House of Delegates and Evan Jenkins, U.S. Representative for West Virginia's 3rd congressional district, to the two vacant seats until the special elections. Armstead will take Ketchum's seat while Jenkins will take Davis' seat with both having already filed to run in the November special elections.[29] Armstead and Jenkins were required observe a mandatory twenty day waiting period in which the members of the public can file official objections to the appointments prior to taking their seats. This waiting period ended on September 19, 2018.[30] Armsted took the oath of office and assumed his seat on September 25, 2018 while Jenkins resigned from the House of Representatives on September 30, 2018 and took his seat on the court October 1, 2018.[31][32]

In accordance with Chapter 3, Section 10 of the West Virginia Code, any further vacancies will be filled by interim justices appointed by Governor Justice. Barring any changes by the Legislature, these interim justices would likely serve until the primary election in May 2020, when a special election would be held.[33] This became the case with Loughry's resignation, as on December 12, 2018, Justice appointed John A. Hutchison, a lifelong friend and circuit judge in Raleigh County, to Loughry's vacated seat.[34]

References[edit]

  1. ^ "WV MetroNews – Chief Justice Workman says WV Supreme Court has to restore public trust". wvmetronews.com.
  2. ^ MetroNews), Brad McElhinny (WV. "Supreme Court of Appeals 4 15 18". www.documentcloud.org.
  3. ^ "Post Audit Division - Report 2" (PDF).
  4. ^ "WV MetroNews – 'Couchgate' driving Supreme Court budget debate". wvmetronews.com.
  5. ^ "Post Audit Division - Report" (PDF).
  6. ^ "WV MetroNews – Justice Loughry named in 32-count judicial complaint saying he lied over and over". wvmetronews.com.
  7. ^ "Suspension Order" (PDF).
  8. ^ "WV MetroNews – Justice Loughry indicted on 22 counts, U.S. Attorney Stuart announces". wvmetronews.com.
  9. ^ "WV MetroNews – Special session starts Tuesday to deal with Supreme Court impeachment". wvmetronews.com.
  10. ^ a b "WV MetroNews – Delegates vote to impeach all four remaining WV Supreme Court justices". wvmetronews.com.
  11. ^ Dickerson, Chris. "Ketchum pleads guilty to federal information regarding car use".
  12. ^ WV Supreme Court formally annuls Ketchum's law license
  13. ^ Taylor, Anna; Morris, Jeff. "West Virginia Supreme Court Justice Robin Davis announces retirement".
  14. ^ Dickerson, Chris. "House votes to impeach all current Justices".
  15. ^ West Virginia Senate OKs rules for impeachment trials.
  16. ^ http://wvmetronews.com/2018/09/11/updates-pretrial-hearing-in-wv-supreme-court-impeachment/
  17. ^ Senators reprimand Justice Walker, but vote to not impeach.
  18. ^ [1]
  19. ^ With Workman impeachment trial blocked, Senate debates next move.
  20. ^ West Virginia Supreme Court halts impeachment trial for Justice Workman.
  21. ^ Effort to remove convicted Justice Loughry from office continues
  22. ^ [2]
  23. ^ With Workman impeachment trial blocked, Senate debates next move.
  24. ^ West Virginia Supreme Court halts impeachment trial for Justice Workman.
  25. ^ Effort to remove convicted Justice Loughry from office continues
  26. ^ Effort to remove convicted Justice Loughry from office continues
  27. ^ West Virginia Supreme Court Justice Loughry convicted on 11 charges.
  28. ^ WV Supreme Court Justice Loughry guilty on 11 of 22 federal charges.
  29. ^ Governor Jim Justice appoints Armstead and Jenkins to the Supreme Court
  30. ^ Objections to Supreme Court picks can be filed during 20-day period
  31. ^ Jarvis, Jake (2018-09-25). "Tim Armstead sworn in as Supreme Court, WV, justice". WV News. Retrieved 2018-09-26.
  32. ^ "Evan Jenkins to Resign Seat on Sunday, Head to West Virginia Supreme Court". Roll Call. Retrieved 2018-09-29.
  33. ^ Mistich, Dave. "The Looming West Virginia Supreme Court Impeachment Proceedings: An Explainer".
  34. ^ http://wvmetronews.com/2018/12/12/hutchison-to-take-seat-on-state-supreme-court/