Impeachment Proceedings Against All Four West Virginia Supreme Court Justices

"The articles of impeachment charge Chief Justice Margaret Workman and Justices Robin Davis, Allen Loughry and Beth Walker with maladministration, corruption, incompetency, neglect of duty and certain high crimes." (The fifth Justice has already resigned.)

|The Volokh Conspiracy |

I don't know much about the controversy, but it seemed noteworthy; here's an excerpt of an article from the Charleston Gazette-Mail (Lacie Pierson) that my local correspondent recommended:

Each justice is charged with "unnecessary and lavish" spending of state taxpayer dollars to renovate their offices in the East Wing of the Capitol. All four of them also are charged with failing to develop and maintain court policies regarding the use of state resources, including cars, computers and funds in general.

Loughry faces additional charges related to his alleged use of state vehicles for personal travel, having state furniture and computers in his home, having personal photos, documents, photos and artwork framed on the state's dime, and handing down an administrative order authorizing payments of senior status judges in excess of what is allowable in state law.

Davis and Workman are charged with signing documents authorizing that senior status judges be paid in excess of what's allowable in state law….

Ketchum [the Justice who had resigned] agreed to plead guilty to one count of federal wire fraud, according to a plea agreement announced by U.S. Attorney Mike Stuart last week.

Loughry is the subject of a 23-count federal indictment charging him with 16 counts of mail fraud, two counts of wire fraud, three counts of making false statements to a federal agent, one count of obstruction of justice and one count of witness tampering.

The charges appear not to be focused on the Justices' substantive decisions, but there is a possible political dimension:

Delegate Mike Pushkin, D-Kanawha, also suggested the nature of grouping all of the justices into one set of articles of impeachment appeared to be an attempt to allow Republican Gov. Jim Justice an opportunity to appoint four of the five Supreme Court justices for at least two years on the bench.

Though any good Russian has to respect a man with that last name, I do not know what role partisan politics is playing in this process. (The current Justices are two Democrats and two Republicans.)

Thanks to Jeremy Cooper for the pointer.

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  1. Seems pretty strange. Almost all the impeachment articles are about spending beyond their budget, improper use of state cars, and so on. Indictments, impeachment, one resignation. Then there’s an Aug 14th deadline of sorts; if they are impeached before then, it changes how the governor’s interim appointment is replaced by a permanent appointment.

    Something fishy going on. Too bad the reporter doesn’t provide some context.

    1. ” it changes how the governor’s interim appointment is replaced by a permanent appointment.”

      Except for mid-term vacancies, West Virginia state Supreme Court Justices are elected, not appointed

      1. Yes, I was not clear, but what I meant is, I don’t understand the worry about the deadline. 3 of the justices were Dems, 2 GOP, but the elections are non-partisan. Democrats complain the initial hearings began a while back and suddenly there’s a rush to impeach before Aug 14, which means the replacements will be on this Novermber’s ballot. You’d think they’d worry more about the Republican governor appointing interim justices after Aug 14 who would last until 2020; that the Dems would want interim appointees who would be replaced this November.

        1. You have to understand a bit of the politics and the process. The WV legislature is obviously composed of part-time legislators with real jobs. The judiciary committee has only met one or two days a week for over the last month or so. The Democrats have argued that with Loughry’s indictment and removal by the Judicial Investigation Commission there was no need for such slow speed and they should move quickly to impeachment and then removal by the Senate before August 14th.

          I always thought that was a dangerous tactic and the Republicans on the committee took advantage of that: on Monday they presented articles against all the Justices and moved for their approval on Tuesday. “Hey, you said we need to move fast so we are gong to move fast.”

    2. An NPR story has different details. $32K couch, fancy inlaid floor in the shape of West Virginia.

  2. A few additional points (I may be your local correspondent):

    1) WV has moved to non-partisan judicial elections starting in 2016 (Walker is/was a Repub, but was elected w/o party affiliation.)
    2) WV is the only state where the Justices have complete and absolute control over the judiciaries budget. There is an amendment on the November ballot to change this, and I would give it a 100% chance of passing.
    3) If a vacancy on the Court is created before August 14, a replacement for the remainder of the term is elected in November. After that date the Governor (elected as a Dem switched to Republican) gets to nominate someone (w/o “advice and consent”) until 2020.
    4) The two Democrats on the Court were elected the earliest; with the state’s Republican swing it is incredibly unlikely they would be re-elected today (even given non-partisan elections.)
    5) The WV Constitution allows removal for “maladministration” among several other things; to the best of my knowledge that is a rather undefined legal term that can fit whatever the House and Senate want. Not that it matters.
    6) Given the makeup of the legislature, and the mood of the public I think it is incredibly likely all 4 will be removed from office. If I were them I would resign before the 14th, stop the Governor from being able to nominate replacements, and then if they so desire run for re-election in November.

    1. Resignation seems the prudent course in light of the last sentence in the article [“banned from ever seeking public office again in West Virginia’] if they like politics.

      Perhaps they think however they can get more than 1/3 of the Senators to acquit?

      1. The breakdown of the Senate is 22 Republicans and 12 Democrats. If my math is correct they would need 23 votes to remove from office. The vote in the house judiciary committee was not strictly party-line, but the majority of those who voted against the proposed articles were Democrats.

        The problem for the Justices is that these are issues that are very easy for the voting public to understand and be disgusted by. One of the issues in the articles is the appointment of “senior-status” judges to cases. That isn’t something that really excites the public. On the other hand, spending $500,678 on renovations and decorating a single office is something voters can easily understand and is tough to defend.

        If I were one of them, I would certainly not bet on acquittal. For Justice Walker, by virtue of the fact that she has been in office for less than two years and has never served as Chief Justice, maybe. She also has the advantage of being a Republican, even though technically she holds office as a non-partisan.

        1. While WV gov’t contracting may not be the same as other States and/or federal contracting; I find it hard to believe that Justice Walker had anything to say when it came to the renovations. These types of contracts usually take more than just a few months to be awarded and usually more than just a few months for work to start/complete. It would be interesting to know at what stage the renovations contract was at when she was elected.

          Especially in light of another article being voted down where she contracted out actual administrative work for the court and IIUC it was given out because Loughry had fired the Administrator. Not to mention it went to the interim administrator before being hired.

    2. “A few additional points (I may be your local correspondent) . . . .”

      Allow me to express the condolences of all the rest of us who have managed to escape the Mountain State.

  3. Some context. It all resolves around former Supreme Court Justice Allen Loughry. Last fall, stories began to circulate about lavish spending by the court on office renovations. He fired the court Administrator and blamed him for everything. First rule of politics: if you are doing something wrong, do not create enemies. He also reported the administrator to the US Attorney for Southern WV.

    Fired and under the threat of prosecution, Canterbury basically told his story to the media and the feds. This switched the focus to Loughry and his enemy (Canterbury) had all the documents and knew where the bodies were buried. Evidence came out showing several Justices used state vehicles (and state paid-for gas) for personal use. In addition, every Justice had 6-figure office renovations, finally evidence was disclosed that the Court paid senior-status (retired) Judges more for “filling-in” that allowed under state law.

    Loughry was indicted and suspended by the “Judicial Investigation Commission” but refused to resign. Justice Ketchum resigned and will plead guilty to a federal information for wire-fraud. (The state paid the credit card bill for the fuel he used on personal business.) It boils down to the fact that the House decided since we are going to impeach one, we should impeach all. Again, unlike the US Constitution, “maladministration” is a removable offense.

    1. Thanks for this.

  4. Non-partisan election is an oxymoron.

    1. In some places, maybe. However, in WV, “straight-ticket” voting was/is common. My grandmother worked counting ballots decades ago and estimated that about 75% of the ballots selected the “straight-ticket” option. Of course, back then, it was for the Democrats; today it is for the Republicans.

      As I mentioned above, I highly doubt Justices Davis or Workman could win election today. However, making voters actually select a specific Justice (or judge) does make a difference in this state. Not a big difference perhaps, but it does have an effect.

      1. FYI, this shows WV abolished straight ticket voting in 2015. research/elections-and-campaigns/ straight-ticket-voting.aspx

        (spaces added)

        1. That is correct. Both changed for 2016. However, anecdotal evidence suggests that while the ability to select all candidates with one “tick” is gone, there are a number of voters who do not “zig-zag” down the ballot.

  5. Justice Loughry, who faces the most serious charges, apparently wrote a book in 2006 entitled “Don’t Buy Another Vote, I Won’t Pay for a Landslide: The Sordid and Continuing History of Political Corrupton in West Virginia.”

    What sweet irony.

    1. Maybe his book will get a bump in sales now that he’s demonstrated he really is an expert in the subject.

  6. Not the first “scandal” of its kind. However, I’m curious whether the legislature passed appropriations for the purchases, or structured a statutory scheme that provides a great deal of latitude to the judiciary for discretionary expenditures.

    1. As mentioned in another reply, West Virginia is unique in that under the Constitution the Supreme Court has complete and absolute control over the budget of the judiciary. The legislature has absolutely no oversight or control, which made it easy to place all of the blame for improper spending on the Justices.

      Along those lines, the Supreme Court built up a surplus of $26M and then quickly spent that down to a couple hundred thousand a few years ago when there were rumblings that an amendment to the state Constitution would be proposed.

      There is a Constitutional amendment on the November ballot that would change that to give the legislature oversight over the court’s budget in the same way that it does for the executive branch. It is about as certain to pass as a Constitutional amendment could be.

      1. Surely the Court did not have the ability to tax? How is the Court funded?

        1. Without doing any research, my guess would be filing fees, doc stamps, bar dues, etc. Odd to give the WV Judiciary complete control of its budget and appropriations–and then investigate it for exercising its, apparently, exclusive discretion (insofar as it relates to official, non-personal expenditures).

          Very odd to give the judiciary its own treasury.

        2. The legislature has to give them whatever they ask for. If they say they need $500M the legislature has to give them $500M.

  7. Overspending on office furniture is not the sort of high crime and misdemeanor contemplated in the Federal constitution. Indeed, the purpose of the impeachment process is to protect them from Executive wrath, given the Executive’s power to arrest and charge people for trivialities.

    I’m not condoning what they did. And there may be more behind it than I’m aware of. But if judicial independence is to mean anything at all, the enormous power to replace an entire Supreme Court with completely new people ought to require a serious crime, and if the initial impression is accurate, would think it would need a crime more serious than this.

    1. Its not really the overspending, its the overspending + personal use of state property.

    2. Its not really the overspending, its the overspending + personal use of state property.

    3. Under the West Virginia Constitution, “maladministration” is a removable offense.

    4. This has nothing to do with the US Constitution. And if state Supreme Court justices are committing wire fraud and paying employees illegally, how could they be trusted to do their jobs faithfully? This is exactly what impeachment is for.

  8. If excessive and unnecessary spending of taxpayer funds is grounds for removal from office, I can’t think of any politicians in office today that could withstand scrutiny. Indeed, Congress regularly appropriates funding for spending which has no basis whatsoever in the Constitution. After Senator Frank Lautenberg died in office in 2013, Congress passed a Continuing Resolution for 2014 Appropriations which included a $174,000 tax free gift to his widow. I cannot for the life of me think of any portion of Article I of the Constitution which authorizes Congress to give away public funds to friends and family of Senators or Representatives, yet Congress has been doing precisely this for over a century. Corrupt bastards. All of them.

  9. 2 Democrats and 2 Republicans? How am I supposed to know whether I should Tweet “WITCH HUNT!!” as opposed to “LOCK THEM UP!!”

    1. Not to mention “but Obama!”/”but Trump!”

  10. Watch for a replay at SCOTUS.

    Someday Ds will win control of both houses, and the presidency. Likely, that will happen while the McConnel court legacy continues in effect. It will dawn on the new D President that he can’t pack the Court, but he can replace it. Impeachment charges against all will follow.

    I suggest, “Lending the dignity of the Court to partisan political causes, to the detriment of the people’s respect for justice,” as a likely-looking, universally-applicable charge. Are there any justices now sitting who haven’t accepted invitations to address partisan organizations, or let their pictures be printed on the promotional brochures?

  11. Personally, I find the impeachment proceedings a more interesting issue than the individual issues.

    4-9. Impeachment of officials.
    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, to be designated by it, shall preside; and the senators shall be on oath or affirmation, to do justice according to law and evidence. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit, under the state; but the party convicted shall be liable to indictment, trial, judgment, and punishment according to law. The Senate may sit during the recess of the Legislature for the trial of impeachments.

    So…if impeached, the Senate conducts a trial…presided over by one of the judges on trial. There doesn’t seem to be any provision for anyone other than a judge of the supreme court of appeals to preside over said trial.

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