Now this is what you call a “constitutional crisis.”
To be fair, it wasn’t the regular Supreme Court of Appeals, but a bunch of stand-ins, acting justices.
They ruled last week that despite the state constitution giving the power to impeach justices to the legislature, this particular impeachment was unconstitutional, a violation of separation of powers.
As a result, the justice who was to preside over the impeachment Monday got cold feet. He was a no-show.
So there will be no show Monday.
Instead, the legislators who wanted to impeach her and all the rest of the justices are scratching their heads, trying to figure out what to do next.
Let’s back up. When this story last made national headlines, that headline was “The entire W.Va. Supreme Court faces impeachment for alleged corruption: Gas money, restaurant lunches, an antique desk.”
Workman was one of four sitting justices — the entire state Supreme Court — the House of Delegates voted to impeach in August. The fifth justice had resigned earlier, later pleading guilty to wire fraud.
The rest were each accused of “wasteful spending” with virtually no oversight. There was the notorious $32,000 blue-suede couch that Justice Allen Loughry bought with taxpayer money, and the $8,000 office chair that Justice Robin Davis needed for her back. There were the pricey lunches and seemingly unbridled travel budget and, in Loughry’s case, lies about his fraudulent mileage and gas reimbursements.
In Workman’s case, state auditors found that she spent $112,780 on her office spruce-up, including nearly $12,000 on cabinetry and $17,000 on fabrics and furniture reupholstery. Plus an $8,892 sofa, as WCHS reported in a 2017 investigation. Taken all together, her new office cost more than the average house in her state, as an editorial in the Intelligencer pointed out. She was also accused of authorizing excessive payments to senior status judges.
But in its ruling released Friday, the West Virginia Supreme Court halted the impeachment proceedings against Workman on various grounds, finding that, actually, the West Virginia Supreme Court could discipline a sitting judge only for violations of judicial ethics under the Code of Judicial Conduct, as opposed to actual crimes, high or low.
You could tell from the first few lines of the ruling that this was something strange.
ACTING CHIEF JUSTICE JAMES A. MATISH delivered the Opinion of the Court.ACTING JUSTICE LOUIS H. BLOOM concurs in part and dissents in part and reserves the right to file a separate opinion.ACTING JUSTICE JACOB E. REGER concurs in part and dissents in part and reserves the right to file a separate opinion.CHIEF JUSTICE WORKMAN is disqualified.JUSTICE ALLEN H. LOUGHRY II suspended, therefore not participatingJUSTICE ELIZABETH WALKER is disqualified.JUSTICE PAUL T. FARRELL sitting by temporary assignment is disqualified.JUSTICE TIM ARMSTEAD did not participate.JUSTICE EVAN JENKINS did not participate.ACTING JUSTICE RUDOLPH J. MURENSKY, II, and ACTING JUSTICE RONALD E. WILSON sitting by temporary assignment.
The unusual beginning foreshadowed an unusual ruling, which could probably be applied in the cases of the other justices.
In addition to the separation of powers piece, the court said the House had forgotten one little thing: It didn’t include “findings of fact” with the articles of impeachment.
In an apparent dig at House leadership, Acting Chief Justice James A. Matish wrote that “our forefathers . . . had the forethought” to establish specific procedures in the constitution, but “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,” Matish wrote, “or if they read them, they decide the rules do not apply to them.”
Only one of the four justices the House voted to impeach has gone to trial in the Senate. Justice Beth Walker was acquitted and allowed to keep her job, but the Senate voted to formally censure her Oct. 2.
Flustered by the ruling by the acting Supreme Court justices, the Senate had initially said it would move forward with Workman’s impeachment proceedings anyway.
But the Senate changed its mind, said a spokeswoman for the Senate. The main problem: That justice who was scheduled to preside over the impeachment trial said the court order prohibited him from doing so.
In its brief to the Supreme Court, the Senate had argued that “to hold that the Legislature cannot consider the Code of Judicial Conduct in its deliberation of impeachment proceedings against a judicial officer would have the absurd result of prohibiting removal from office for any violations of the Code of Judicial Conduct.”
But that argument “misses the point,” Matish wrote. The problem, he wrote, was that the House had based its impeachment articles for “wasteful spending” solely on the Code of Judicial Conduct, which only the West Virginia Supreme Court has the authority to impose. The Legislature, however, could have used findings from a Code of Judicial Conduct investigation as supporting evidence to bolster the articles of impeachment.
The charges against Workman are mild compared with the alleged conduct of some her colleagues.
Loughry was found guilty last week of 11 of 22 counts of fraud charges in federal court, stemming from his fraudulent use of a government vehicle and state fuel card and his lies about taking an antique desk out of the courthouse and to his own “home office.”
Loughry had previously blamed all of the wasteful spending on a zealous administrative employee in an interview with WCHS, vowing that he would present the alleged bad employee to the U.S. Attorney’s Office for investigation. He did. Instead, the feds investigated Loughry.
In addition, former Justice Menis E. Ketchum II pleaded guilty to wire fraud in August for his fraudulent use of a government vehicle and state fuel credit card to fund 400-mile round-trip travel from his home to a private golf club, costing $220 per trip various times from 2011 to 2014. He didn’t need to be impeached because he had already resigned.
In a short soliloquy at the beginning of the ruling in Workman’s case, Matish said a “rush to judgment” by the legislature led to the procedural violations. The case was “not about whether or not a Justice of the Supreme Court of Appeals of West Virginia can or should be impeached,” but rather about the fact that it “must be done correctly.”
“The greatest fear we should have in this country today is ourselves,” he said. “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.”
To those familiar with the impeachment provisions of the U.S. Constitution, which essentially gives Congress unfettered discretion, this may sound strange. But the West Virginia Constitution is considerably different: It requires that impeachment proceeding be conducted “according to law and evidence.” Here’s the full text in West Virginia’s:
“Any officer of the state may be impeached for maladministration,
corruption, incompetency, gross immorality, neglect of duty, or any high
crime or misdemeanor. The House of Delegates shall have the sole power
of impeachment. The Senate shall have the sole power to try impeachments
and no person shall be convicted without the concurrence of two thirds of
the members elected thereto. When sitting as a court of impeachment, the
president of the supreme court of appeals, or, if from any cause it be
improper for him to act, then any other judge of that court,14 to be
designated by it, shall preside; and the senators shall be on oath or
affirmation, to do justice according to law and evidence.”
Those last five words gave the court its opening. It ruled that the legislature was not doing justice “according to law and evidence.”
It’s not clear how Workman’s case will proceed; attorneys for the Senate had previously indicated that they planned to appeal to the U.S. Supreme Court. Workman’s attorney, Marc Williams, said he believed that the likelihood of the Supreme Court taking the case is “very, very small,” the West Virginia Gazette Mail reported.
An impeachment trial for Loughry is scheduled for Nov. 13, and one for Davis is scheduled Oct. 29.
As The Washington Post’s Isaac Stanley-Becker reported, the whole thing had a political odor, as the judges are elected judges. The elections are nonpartisan, but right now the makeup is 3-to-2 Democratic. Both houses and the governor are Republican. If the justices were impeached, the governor would get to appoint a whole new court, presumably Republicans.