I’ve heard of Christmas miracles, but I think West Virginia was witness to a Thanksgiving miracle of sorts.
Last Wednesday, the West Virginia Supreme Court of Appeals told the state Legislature that there would be no reconsideration of its decision to stop the impeachment trials of Chief Justice Margaret Workman and former justices Allen Loughry and Robin Davis.
The original decision basically said that the process the House of Delegates used to impeach the justices (they also impeached Justice Beth Walker, the incoming chief justice) was flawed and not appropriately followed. They also said some of the impeachment charges violated the separation of powers between the judicial and legislative branches when the House alleged that the justices violated the canons of judicial ethics.
Never mind that to make that decision, the all-appointed court had to violate the separation of powers itself by interpreting the rules the House put in place to govern their impeachment process, powers that belong strictly to the Legislature.
Marc Williams, Workman’s attorney for the Supreme Court case, argued that Workman’s right to due process was violated by the House impeachment process. Never mind that during the House Judiciary Committee’s impeachment investigation it allowed for attorneys for the justices to ask questions of witnesses (none took advantage of this).
They obviously would have gotten to present their case before 34 senators sitting as a jury, which is who should have heard any issues with how the House handled the 11 articles of impeachment it passed. Frankly, the issues have some merit. The House didn’t include a statement of fact with their impeachment articles (they argued the articles were the statements of fact). They also, after passing each article one-by-one, didn’t actually pass the resolution that included the articles (it was decided they didn’t have to).
Those issues raised in Workman’s Supreme Court petition had some validity. But they should have been issues the jury considered during her impeachment trial. I’m told Workman’s impeachment defense team didn’t even know another legal team representing Workman was filing a Supreme Court petition. Marc Williams didn’t even file a case against the body that actually did the mistakes — the House.
Instead, Workman sued the jury — the Senate — which had no role in how the impeachment articles got to them. The court basically wanted the Senate to answer for things the House did, and they couldn’t. It was right for the Senate to ask the court to reconsider its decision and call for the right party — the House — to answer for its impeachment votes.
The court, however, said it has no jurisdiction to reconsider its decision. Williams told me via Twitter that the Workman decision is not new law. I beg to differ, as it now creates a precedent in my mind. The state Constitution says “The House of Delegates shall have the sole power of impeachment.” This decision adds invisible language to the Constitution — “…unless the Supreme Court says otherwise.”
If I were Justice Walker, I’d ask for her motion of censure by the Senate to be rescinded unless the Legislature plans to censure Workman, too. Walker is the only justice out of the four to face an impeachment trial, even though she was acquitted. That’s going to hang over her head even while Workman sits with no immediate repercussions.
In January, Walker will become the new chief justice. I have no doubt once she gets the middle chair on the bench, she’ll work with new justices Tim Armstead, Evan Jenkins and whoever Gov. Jim Justice appoints to replace Loughry. The first order of business needs to be top-down reform of the court and its administrative services. If they don’t, I can assure you the Legislature will.
In fact, I fully expect legislation in January to prevent anything like we’ve seen from happening again. One thing I keep hearing is lowering the 12-year term for justices to eight or even six years. Thought is shortening the term might prevent justices from kingdom-building. Also, expect some regulations on how senior status judges — retired judges who temporarily fill court vacancies — are compensated.
Regardless, with the Workman case at a standstill, Davis dismissing her federal lawsuit and Loughry resigning and awaiting sentencing on his federal convictions, the impeachment saga is over. The Legislature would do well not to attempt a new impeachment for Workman. It would be a waste of time during the 60-day legislative session. Plus she is currently outnumbered on the Supreme Court.
Turning to who replaces Loughry, it will be up to the Judicial Vacancy Advisory Commission to weed through the applicants and Gov. Justice to choose the final candidate. Expect to see a lot of the same names that were on your ballot, though I imagine some new applicants will pop up.
I don’t know who Justice will appoint, but the court needs someone with either experience on a bench as a judge, or someone who has experience in the inner workings on the high court, such as a law clerk. Justice would probably get some high points for selecting a qualified woman or minority as well.
I’d advise against an overtly political pick. A current or former circuit judge would be a good fit and would help further restore confidence in the court.