A tour of Supreme Court offices has been delayed following concerns about press freedom and potential violations of West Virginia’s open meetings laws as some state delegates push for court transparency. Members of the House Judiciary Committee also agreed to make their tour of the court conditional upon media access being granted to three pool reporters from the press corps covering potential impeachment proceedings of one or more state Supreme Court justices.
The delay came following a motion by Del. Shawn Fluharty, D-Ohio, who cited the possibility of violations of the state’s open meetings laws.
“It’s important that you’re there for transparency purposes, right? We’re there as representatives of the people — we were elected to do so. And you’re also there as representatives the people. You’re a check on us, you’re essentially the fourth branch,” Fluharty said. “We want the press there to give a nonpartisan analysis. A bunch of politicians walk in a room, and they walk out with different opinions based upon their political background.”
Delegates of both parties — except for Dels. Charlotte Lane and Tom Fast, both Republicans — voted in favor of the motion to delay the tour.
“Based upon what our chairman stated — that they had conferred with multiple attorneys about this. Not only our staff attorneys, but other attorneys as well, and believed [having the meeting today] was a prudent thing to do. And timeliness, we’re trying to move this thing on,” Fast, R-Fayette, said. “This meeting had been scheduled for several days. And if there was going to be an issue of delaying it, I think they should have been brought up much sooner than right before we’re ready to go. So, it disrupts the schedule and I thought that it had been legally and fairly explored.”
A second motion by Fluharty made the impending tour conditional on media access being provided to three pool reporters. Members of the media will decide among themselves who will attend the tour to provide notes, audio, video and other reportage to those not selected to tour the court offices.
Members of the West Virginia media had been pushing for access to a tour of the Supreme Court offices, not just to see the renovations at the heart of the impeachment proceedings, but also to observe the interaction between members of the committee and court staff members.
“I think this is — at the very heart of — the issue that we’re exploring here as transparency and have a lack of that, in our evaluation and tour of the court, I think is indicative of the whole problem,” Del. Riley Moore, R-Jefferson, said.
The House Judiciary Committee was originally scheduled to tour the offices at 10:30 a.m. Friday as part of their investigation into the possible impeachment of one or more justices on the state’s high court. However, the media had been excluded from that tour and requests for access have not been returned.
Discussions about media access began Thursday following an email from court public information officer Jennifer Bundy to members of the press corps covering the impeachment proceedings.
“The tour of Supreme Court offices tomorrow, Friday, July 20, is solely for members of the House Judiciary Committee and committee staff. No media will be allowed to participate in the tour,” Bundy wrote. “Media entities may request access to court offices at another time. Send the request to Interim Administrative Director Barbara Allen.”
Multiple requests from the media — including West Virginia Public Broadcasting — for a reconsideration of this decision have gone unanswered.
Lavish spending by the court on office renovations — to the tune of millions of dollars — has been a key focus of the impeachment proceedings.
On her way into the building Friday morning, Bundy — who testified to the committee Thursday — cited an exception to West Virginia’s open meetings law as the reason for media being put in the dark. She cited West Virginia Code Code § 6-9A-2(5)(B). The law states that “any on-site inspection of any project or program” can be excluded from the open meetings law. Exemptions to open meetings laws are optional and not a mandate.
Asked by reporters if he feels media should have the same, concurrent access as the committee, chairman John Shott said the exclusion of the media was not his decision to be made. Shott also said the tour would not be an official meeting of the committee.
“It is not an official meeting. It will be voluntary for our members who want to go — so at the conclusion of our sessions, we will recess to allow those members who want to go now,” Shott said.
Democrats on the committee expressed support of media to attend the tour Friday along with delegates. Some delegates, including Del. Mike Pushkin, offered to take photos and video.
However, the court said in a news release that photos and video of the offices would not be allowed Friday.
“The Committee members will be instructed that the Supreme Court will not allow photography or video during the tour, and that if afterward they believe pictures or videos are necessary, Chairman John Shott and the Committee’s photographer will contact Interim Court Administrator Barbara Allen,” the court said in the release.
The news release also reiterated West Virginia Code for the media’s exclusion from Friday’s tour.
A tour of the Supreme Court offices has been tentatively rescheduled for Friday, July 27, 2018.
For more information on the potential Supreme Court impeachments, see this explainer.
West Virginia lawmakers have resumed hearings on the possible impeachment of one or more state Supreme Court justices. Members of the House Judiciary Committee heard testimony Thursday from four current employees of the court — focused mainly on suspended Justice Allen Loughry.
Deputy director of Supreme Court security Jess Gundy said he was asked by Loughry in a meeting with other court employees to remove a desk — commonly known as a “Cass Gilbert” desk — and a couch from Loughry’s home.
“He was requesting or trying to list my help to move a couch and a desk from his residence,” Gundy said. “He made sure to tell me that he was not asking me to do anything improper — because [he said] it was permissible for the justices to have home offices and that he wanted to get it out of his house due to the fact, I think, there was a newspaper article that — a day or two before — said that he had that at his residence.”
Gundy said the couch was removed from Loughry’s home and a desk was removed a few days later.
Director of Supreme Court security Art Angus and court “messenger” Paul Mendez reiterated testimony provided by Gundy about the justice’s use of state vehicles and moving the furniture from Loughry’s home.The two court employees assisted in moving the furniture.
Angus testified that media attention had been drawn to Loughry and that the justice had planned to remove the desk from his home at a time when neighbors would not see it being moved. He and Mendez said they were told to wait for notice from Loughry’s wife so that no one would see them.
“He said, ‘We’ll go up early Thursday morning because we’re going to have a time getting it out and getting it in the garage. And I’ll just have Kelly call me if the neighbor leaves, because we don’t need to be all photographed again,’” Angus recalled of Loughry’s directive on moving the desk.
Over the course of the media learning of the furniture at Loughry’s home and it being removed, Loughry contended the couch once belonged to former Justice Joseph Albright, who is now deceased. In emails, Loughry told reporters that — upon Albright’s death — the former justice’s family gathered some possessions but left others, including the couch.
Gundy and Angus, who also help coordinate the court’s fleet vehicles, testified that Loughry would often take state-owned vehicles on weekends and without providing a destination or purpose. He reported that Loughry told him at various points that Supreme Court justices did not need to provide that information.
Gundy also detailed a strained relationship between Loughry and former court administrator Steve Canterbury. Gundy recalled escorting Canterbury from the court offices when he was fired by Loughry in January, 2017.
“He kept referring to the press. He made references to that many times,” Gundy recalled. “I remember he said, ‘I don’t know whether I’m just going to ride off into the sunset or whether I’m going to contact the press and tell them everything.’”
The committee also heard from court public information officer Jennifer Bundy about communications she sent on behalf of the court to reporters inquiring about Loughry’s possession and removal of furniture from his home. Bundy reported she was directed to tell reporters about a policy that allowed for home offices — when no such policy existed.
“He was pretty adamant that there was such a policy,” Bundy told the committee. “At the time I sent [those statements about the home office policy] I didn’t know it wasn’t true.”
She said, at times, Loughry would direct her to answer media questions regarding the furniture and other times he would answer them directly. Bundy said once Loughry directly responded to media inquiries without conferring with her. She recalled expressing apprehension about her job security to Loughry.
“At one point, I became concerned about my job because they were answering media questions that seem to be important to me and I wasn’t involved in that,” Bundy said, noting that she asked Loughry and Judge Gary Johnson — who served as court administrator following Canterbury — about the status of her position.
“I just flat-out asked them, ‘Am I gonna lose my job? Why aren’t you involving me in these conversations?’ And Justice Loughry assured me that I was not going to lose my job. He said it two or three times. But Judge Johnson told me that the reason they had not involved me was because I had said I was friends with Steve Canterbury and they didn’t want to put me in a difficult position,” she said.
Last week, members heard testimony from state legislative auditors and former court employees, who also testified about their knowledge of justices use of state vehicles and possession of state property in private homes — as well as lavish spending for office renovations.
Loughry has been indicted on 23 counts of federal charges, including fraud, witness tampering, making false statements and obstruction of justice. He was suspended without pay last month following a statement of charges from the Judicial Investigations Commission — a disciplinary arm of the court.
Following the adoption of a resolution last month, the House of Delegates authorized its Judiciary Committee to investigate the possible impeachment of all five of the justices on the state’s high court. Under scrutiny for using a state vehicle for personal reasons, Justice Menis Ketchum announced his retirement last week.
Committee members are scheduled to resume hearings Friday, including a tour of Supreme Court offices.
In an email, Bundy said media would not be allowed to take part in the tour. Reporters covering the impeachment proceedings have pressed to have the same access as the committee and be provided answers as to why they have been excluded.
For more information on the potential Supreme Court impeachments, see this explainer.
The House Judiciary Committee continued its meetings Friday on the possible impeachment of one or more West Virginia Supreme Court justices. The second day of testimony focused heavily on suspended Justice Allen Loughry and his private use of state resources. The justices also delivered a letter to the committee critizing the impeachment proceedings.
Testimony kicked off in the morning with Scott Harvey, who worked for the Supreme Court’s IT department. Harvey told members he felt pressured at times to install equipment at Justice Loughry’s home — where the justice had multiple state-owned computers.
According to a statement of charges from the Judicial Investigations Commission, at least one computer was used extensively for private use, including for storage of family photographs and video games.
In the afternoon, committee members continued discussions of Loughry’s possession of a historic Cass Gilbert desk. They heard testimony from Fletcher Adkins, a former assistant to the court’s former administrator.
In a letter to Chairman John Shott dated Friday, interim director of the state Supreme Court Barbara Allen challenged the scope of the committee’s requests for evidence and called it a “fishing expedition.”
Allen said the Supreme Court has been cooperative during the various investigations of the justices, but she argued the resolution to investigate possible impeachments infringes upon the separation of powers between government branches.
Delegates on the committee will resume meetings Thursday.
For additional information on the potential impeachments, see this explainer.
The House Judiciary Committee have begun to examine evidence in the possible impeachment of one or more state Supreme Court justices. Members heard testimony from auditors on the improper use of state vehicles and rental cars, a justice’s possession of a historic desk and a fast spend-down of a budget surplus. The opening proceedings were also marked by a partisan battle over the committee’s newly established rules of procedure.
At the opening of the meeting, House Judiciary Chairman John Shott acknowledged the retirement of Justice Menis Ketchum, which was announced Wednesday, July 12.
Shott stated that — as a matter of saving time and effort on behalf of the committee — any evidence or testimony specifically and only pertaining to Ketchum would not be heard during the course of the impeachment proceedings.
“All of you on the committee know the only remedy that’s available to the House — as a result of these proceedings — is to recommend articles of impeachment and the only remedy available to the Senate is removal from office,” Shott said. “And because the retirement of Justice Ketchum effectively will result in his removal from office, we will not be spending any time dealing with the findings of either reports that deal with Justice Ketchum.”
At various points throughout the meeting, Democrats attempted to amend rules of procedure that were established by Chairman John Shott. The minority party also argued that Shott’s established rules for the impeachment proceedings ran counter to the general rules of the body as a whole.
House Resolution 201, passed by the full chamber on Tuesday, June 26, calls for the investigation of possible impeachment of all five of the justices that preside over the state’s high court. The measure also authorizes Shott to establish and define rules of procedure for the impeachment proceedings. He ultimately ruled that motions to amend the rules of procedure were out of order.
Democrats also took issue with Justice Allen Loughry’s attorney, John Carr, meeting with committee counsel regarding the established rules of procedure. Shott stated he was not a part of those meetings.
In terms of testimony, committee members heard from Justin Robinson, who serves as acting director of the post audit division of the Legislative Auditor’s office. Delegates questioned Robinson about two reports that indicated justices kept poor records while traveling and sometimes used state-owned and rental vehicles for personal reasons. Discussions of vehicle misuse focused specifically on justices Robin Davis and Loughry.
Travel by Davis — who was appointed to the bench in 1996 and elected as a Democrat in 2000 and 2012 — focused on a November 2011 trip to Wheeling and Parkersburg. Over the course of that trip and between stops for official court business, Davis attended a political fundraiser in Parkersburg.
Del. Tom Fast, a Republican, asked Robinson if Davis’ stop in Parkersburg for the political fundraiser was a violation of policy.
“It was coincidental. She could have planned the trip to go to Wheeling and then back to Charleston and then back up to Parkersburg — but she did it in a way that was more like a round trip — rather than bouncing back and forth between Charleston. But to my knowledge, no, there is no policy issue violated,” Robinson said in response to Del. Fast.
The audits also show Loughry — a Republican elected in 2012 who was indicted last month on federal charges of fraud, witness tampering and making false statements stemming from potential misuse of state resources — often failed to provide destinations for trips in state vehicles. Other aspects of the audits show mileage on trips in rental cars far beyond the distance between airports and hotels where he was staying on business.
Later during Thursday’s hearing, committee members asked legislative manager and auditor Aaron Allred about a state-owned antique desk used by Loughry that was once appraised at $42,500. The desk is believed to have been selected for the Supreme Court offices by Cass Gilbert, the architect who designed the State Capitol Complex.
A complaint from the Judicial Investigation Commission — who issued a statement of 32 disciplinary charges against Loughry that lead to his suspension without pay — said the justice had the desk moved from the Capitol to his home without the permission or knowledge of the other justices. After media reports, the desk was returned.
“There is an underlying value to the desk,” Allred said. “Whether it was a ‘Cass Gilbert’ desk, or not — just from being a piece of 1930s furniture for an antique collector.”
Robinson returned to provide testimony on the Supreme Courts’ purchase of gift cards as incentives for participants in the state’s drug court program. Committee members also asked about other ways Supreme Court officials quick spend-down a budget surplus that had been built up to $29 million.
This past legislative session, the Legislature passed a resolution to take oversight of the Supreme Court’s budget. That measure will be on the ballot in November as a constitutional amendment — allowing voters across the state to decide whether the Supreme Court retains control of its budget or it’s becomes handed off to the Legislature.
Meetings on potential impeachment will resume Friday. Should articles of impeachment be drafted by the House Judiciary Committee, they would be voted on by the full chamber. If cleared by the House, any trials would take place in the Senate and any convictions would constitute a removal from office.
Just one day ahead of scheduled meetings on potential impeachment of one or more West Virginia Supreme Court justices, Justice Menis Ketchum has resigned.
Gov. Jim Justice said he received a resignation letter Wednesday from Ketchum indicating that he would be retiring from the state’s highest court. Ketchum was elected in 2008 — as a Democrat — to a 12-year seat on the bench. In 2015, state law was changed to make the election of West Virginia Supreme Court justices non-partisan.
“I have decided to retire and relinquish my office as a Justice of the West Virginia Supreme Court of Appeals. My retirement is effective at the close of the business day on Friday, July 27,” Justice Ketchum wrote in a two‐sentence, handwritten letter that was faxed to Gov. Justice.
Gov. Justice said in a written statement issued Wednesday that he has directed his general counsel Brian Abraham to provide the necessary documentation to the Judicial Vacancy Commission and other state agencies to fill the vacancy being left on the bench.
In a news release from the West Virginia Supreme Court of Appeals, other sitting justices spoke highly of Ketchum and his work on the state’s high court.
“Justice Ketchum has brought a great work ethic and strong intellect to his work on the Court, as well as fairness and compassion for people whose cases we hear. He will be missed both personally and professionally,” Chief Justice Margaret Workman said.
“I will miss Justice Ketchum’s wit, insight, and diligence,” Justice Robin Davis said. “He worked long hours serving this Court and this state and did so with a true desire to serve the public. It is unfortunate.”
“I am grateful to have had the opportunity to work with Justice Ketchum, who always took the time to mentor me as a new Justice,” Justice Beth Walker said. “He set a great example with his commitment to fairness and the rule of law. I will miss him.”
The release also states that Ketchum would not provide futher comment. A statement from Justice Allen Loughry was not included. Loughry is currently suspended without pay — following a statement of charges from the state’s Judicial Investigations Commission.
Ketchum’s resignation comes as the House Judiciary Committee is scheduled to continue its investigation Thursday on the potential impeachments of one or more Supreme Court justices. Much of that focus has centered around Loughry.
Loughry has been indicted on federal charges, 22 counts that include fraud, witness tampering and making false statements. The charges stem from the misuse of state resources, including vehicles, computers and furniture. He pleaded not guilty last month to the federal charges.
Ketchum also found himself under scrutiny for the private use of a state vehicle. An audit showed he failed to report the use of the vehicle on personal income taxes. Ketchum, though, did repay the state more than $1,500 for incorrect travel expenses.
Gov. Justice will appoint a temporary replacement for Ketchum. However, with Ketchum’s seat on the bench becoming vacant more than 84 days before the November election, a special election will take place — per state code — for another justice to finish out his term through 2020.
As lawmakers discuss the possible impeachment of one or more West Virginia Supreme Court Justices, the rarity of the process raises questions about procedure, its history and other potential constitutional issues.
On Tuesday, June 26, West Virginia delegates passed House Resolution 201, stating: “Some or all of the five members of the Court may be guilty of maladministration, corruption, incompetency, gross immorality, or high crimes or misdemeanors, and may be unfit to serve as Chief Justice or as Justices of the West Virginia Supreme Court of Appeals.”
The resolution calls for an investigation of the potential impeachment of one or more West Virginia Supreme Court justices and cites Article IV, Section 9 of the state Constitution.
During meetings in the run-up to last week’s special session, legislators noted a lack of clear definitions for some of these potentially impeachable offenses.
West Virginia University College of Law professor Bob Bastress said that the language is meant to allow for a separation of powers between branches of government. He said impeachable offenses in West Virginia are written much more broadly than those on the federal level.
“If you have very vague terms, and they’re pretty broad — it can be used by the Legislature to intimidate the executive [or judicial branches] and that’s why the feds rejected it and instead used ‘bribery, treason and other other high crimes and misdemeanors,’ which is much [more narrow],” he explained.
Credit WVU College of Law
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West Virginia University Constitutional Law professor Bob Bastress.
But, as Bastress notes, there are only a few cases in West Virginia’s history where the Legislature has exercised its power of impeachment.
Bastress — who is married to Democratic Del. Barbara Fleischauer — is recognized as a leading scholar on West Virginia Constitutional law. Fleischauer serves as minority chair of the House Judiciary Committee, the group of delegates tasked with investigating potential impeachments.
The ambiguity in what counts as an impeachable offense is just one aspect of what makes the potential impeachment of one more justices especially notable.
The Impeachment Process: A Short History & How It Works
If a public official is believed to have committed an impeachable offense, the House of Delegates has the sole power to bring forth an impeachment. Delegates on the House Judiciary Committee would establish procedure, gather evidence and — if an impeachable offense is determined to have occurred — draw up articles of impeachment.
If those articles are approved by the entire House, a trial would take place in the Senate to determine if the individual is to be removed from office. A two-thirds majority in the Senate is required for a conviction and removal from office.
This has happened only one time in West Virginia’s 155 year history.
In 1875, Treasurer John Burdette was accused of using his office for private gain by taking money from banks that stored state funds. The auditor, Edward Bennett, was accused of failing to file paperwork that would have brought Burdette’s behavior to light.
Both men were impeached. However, Burdette was the only one to be tried and convicted. Bennett was tried, but was acquitted of the charges against him.
In 1926, Auditor John C. Bond was impeached by the House — but resigned in advance of a trial in the Senate. Bond was accused of writing state checks to friends and family members.
The last impeachment proceedings came in 1989 against then-Treasurer A. James Manchin for his role in losing nearly $300 million in state funds to bad investments. Manchin also resigned in advance of a trial in the Senate.
Other proceedings have also taken place where state officials were investigated by the House but never impeached by the full chamber and — in other instances — where officials were investigated and never charged. That said, Burdette’s case in 1875 stands as the only time a West Virginia state official was impeached, tried, convicted and removed from office.
How We Got Here This Time: Potential Supreme Court Impeachments
Reports surfaced late last year detailing lavish spending by the court on office renovations. Justice Allen Loughry — who was Chief Justice at the time — came under fire for the high-dollar cost to taxpayers.
Included in that spending was a $32,000 couch and other office renovations totaling more than $3.7 million. Loughry also is said to removed a historic desk — one selected by architect Cass Gilbert to be used in the West Virginia Supreme Court offices in the 1920s — from a warehouse and placed it in his private home. Loughry later returned the desk.
During the 2018 legislative session, Del. Mike Pushkin called for Loughry’s impeachment.
“He has taken no responsibility, no accountability for what’s gone under his watch and in his office and in his home while he has been Chief Justice of the Supreme Court,” Pushkin said while offering a resolution to investigate impeachment on Jan. 11, 2018.
Efforts for impeachment were largely ignored — and sometimes criticized — until official reports came from the Legislative Auditor’s office.
Credit Perry Bennett / West Virginia Legislative Photography
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West Virginia Legislative Photography
Del. Mike Pushkin announces plans on Jan. 11, 2018 for a resolution to investigate impeachment against then-Chief Justice Allen Loughry.
Audits released later found that Loughry used state resources, including vehicles and computers for private use. Justice Menis Ketchum was named in one of the audits for allegedly misusing state vehicles. Following those audits, Ketchum reimbursed the state more than $1,000 for trips investigators found were for personal use.
In a statement of charges filed Wednesday, June 6, the state court system’s Judicial Investigations Commission found Loughry abused the prestige of his office. He is also accused of lying to the media, lawmakers and the public about his knowledge of high-cost renovations to the Supreme Court offices and improper use of state resources, including furniture and vehicles. Loughry was subsequently suspended without pay.
Weeks later, Loughry was indicted on 22 counts of federal charges, including fraud, witness tampering and making false statements. He has pleaded not guilty to those charges.
Following charges from the JIC and federal prosecutors, lawmakers from both parties and Gov. Jim Justice have called for Loughry’s resignation.
The Politics of Timing: Democrats’ Failed Attempt to Force a Speedy Impeachment
As delegates prepared to adopt House Resolution 201 and formally move forward with an investigation of Supreme Court Justices for possible impeachment, Democrats in the House offered an amendment that would have set deadlines for the respective proceedings in the House and Senate.
The amendment, sponsored by Del. Isaac Sponaugle and other Democrats, would have forced the House Judiciary Committee to submit final recommendations for impeachment to the full body on or before July 23.
Credit Will Price / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Del. Isaac Sponaugle and other Democrats offered an amendment that would have set a deadline for the House Judiciary Committee to offer a recommendation for impeachment of one or more Supreme Court justices.
“The issue on this amendment is, frankly: Should the voters of the state of West Virginia have a right to vote on who their justices are going to be for this court or should the governor had the important power for two years?” Sponaugle asked on the House floor when presenting the amendment.
Republicans countered by arguing that there is few cases of impeachment precedent and that carefulness is the path forward.
“We always — all we do here is balance competing interests. Yes, it would be desirable if there’s an opportunity for our folks to elect the next a justice — if these impeachment articles pass — that would be desirable,” House Judiciary Chairman John Shott said. “But, compared to the precedent we set going forward for all future — we need to get this right. We need to get this right. It’s incredibly important. It shouldn’t be trivial as be rushed and the committee should be given the opportunity to do the work it needs to do and not be pressed against an artificial deadline.”
The amendment offered by Democrats ultimately failed on a, 32-57 vote along party lines.
Credit Will Price / West Virginia Legislative Photography
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West Virginia Legislative Photography
House Judiciary Chair John Shott argues against setting a deadline for the impeachment process.
August 14: A Magic Date for a Supreme Court Vacancy and a Subsequent Special Election
What’s behind Sponaugle and the Democrats’ failed amendment centers around how a vacancy would be filled and how long an appointee would serve on a bench before a permanent replacement would be had through a special election.
According to various sections of state code, a vacancy in the Supreme Court — for any reason — would result in an appointment by the governor.
However, the date of the vacancy matters — and how long an appointee would be in place before a special election occurred. If a vacancy would happen before August 14, 2018, a special election for the open seat on the bench would take place as part of the November 6, 2018 general election. If the vacancy would take place after August 14, 2018, a special election would take place in May 2020.
The August 14 date comes from provisions throughout Chapter 3, Section 10 of West Virginia State Code, which states that if a vacancy comes on or before 84 days before a general election, a special election would take place in November.
Bastress said any person holding a seat in public office — whether appointed or elected outright — can often be seen as holding an advantage. The longer that person would hold office as an appointee before a special election, the better the advantage, he said.
“Being appointed is a leg up on reelection,” said Bastress.
But Bastress said attempts to expedite the process are politically motivated and the process — including a trial in the Senate — could take months on end.
“An impeachment is not something you can rush,” he said.
Loughry’s 12-year term ends in 2024. If he were impeached and removed from office, the person holding that seat after a special election would then be up for reelection at the end of the term.
Armstead’s Potential Interest in a Seat on the Bench
This past legislative session, House Speaker Tim Armstead said publicly he would not file for re-election to the House of Delegates 40th District. At the time of this announcement, Armstead also expressed interest in running for a seat on the Supreme Court — possibly in 2020. Armstead attempted to distance himself and remove any perceived conflict of interest,
In a joint letter dated Friday, June 22, Armstead and Senate President Mitch Carmichael asked the Legislature’s Joint Committee on the Judiciary to review “all available information for the purpose of evaluating impeachment proceedings which may be necessary for any member or members of the West Virginia Supreme Court of Appeals.”
Credit Dennis Loudermilk / West Virginia Legislative Photography
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West Virginia Legislative Photography
House Speaker Tim Armstead steps down from the podium and requests to be recused from matters relating to impeachment of one or more Supreme Court justices. Spearker Pro Tempore John Overington ruled Armstead would have to vote on the matter.
Follow that committee’s meeting on Monday, June 25, Carmichael and Speaker Pro Tempore John Overington issued a letter to Gov. Jim Justice asking him to call a special session on possible impeachments of Supreme Court justices.
Almost simultaneously, Armstead issued a statement attempting to remove himself from any perceived conflict of interest.
“When I announced I would not seek re-election to the House of Delegates, I also indicated that I am considering the possibility of seeking a statewide office in 2020. One office I indicated I am considering running for is a seat on the West Virginia Supreme Court of Appeals,” Armstead said in the statement.
Armstead went on to say he didn’t believe there was an actual conflict of interest, but it was best to request a ruling on the matter.
At the beginning of the Tuesday, June 26 special session, Armstead stepped down from the Speaker’s podium and, after handing over his duties to Speaker Pro Tempore John Overington, formally requested to be recused from matters relating to the possible impeachment of Supreme Court Justices.
Overington ultimately ruled Armstead would take part in the impeachment proceedings. Overington noted that Armstead, at the time of his request for recusal, had not filed pre-candidacy paperwork to run for a seat on the court.
A Constitutional Complication: Who Will Preside Over a Trial in the Senate?
While some aspects of impeachment procedure are vague, the West Virginia constitution states that the Chief Justice of the West Virginia Supreme Court would act as the presiding officer over the Senate during an impeachment trial.
“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,” states Article IV, Section 9 of the West Virginia Constitution.
But with Chief Justice Margaret Workman — and all of the other justices — named in House Resolution 201, it begs the question as to who would serve as the presiding officer. Bastress said it could wind up in the hands of a former Supreme Court justice, but legislators would not be able to influcence that decision.
“The constitution’s pretty strong [in that] the Legislature cannot dictate procedures to the judiciary,” he explained.
Credit Perry Bennett / West Virginia Legislative Photography
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West Virginia Legislative Photography
West Virginia Supreme Court of Appeals Chief Justice Margaret Workman addresses the Legislature’s Post Audits Subcommittee on May 20, 2018.
Following the Judicial Investigation Commission statement of charges against Loughry, Workman and the other justices recused themselves from matters related to the embroiled justice. Kanawha County Circuit Judge Joanna Tabit was appointed to serve as chief justice in matters related to Loughry. But the state Constitution doesn’t explicitly allow her to preside over the Senate if it holds an impeachment trial.
Bastress said he isn’t sure that Workman and the other justices’ inclusion in House Resolution 201 is a clear instance that would preclude them from presiding over a trial in the Senate — namely because articles of impeachment have yet to be voted on in the House.
He also said he doubts Workman’s original order appointing Tabit to preside over the case involving Loughry would apply in matters of impeachment and that another order may be needed.
“This is different because it’s not a constitutionally prescribed procedure. But there’s no precedent on this that I know of — where all five [justices] feel disqualified,” Bastress said. “I don’t think the Framers anticipated this.”
Bastress said Loughry or any other justice who may be impeached could argue that the process was procedurally flawed — should anyone other than one of the five elected justices preside over the trial.
“He could be tried by a presiding officer who’s not a sitting justice — and he could make the argument that it’s not consistent with [the Constitution],” Bastress explained.
However, Bastress pointed to precedent where a district court judge in Mississippi appealed a federal impeachment on procedural and constitutional grounds, but it was ultimately never heard in a higher court.
“The leading case on this is a case called Nixon v. United States — not to be confused with President Nixon,” he said. “This was a judge and the Senate, instead of having hearing testimony — a full blown trial — simply had a record created by a committee of depositions and reports and the like, and then that’s what was presented to the full Senate. And he argued he was entitled to a live trial before the full Senate and the U.S. Supreme Court said, ‘We’re not touching this.’”
Requests for comment from the West Virginia Supreme Court of Appeals regarding who would be the presiding officer in the Senate went unanswered as of Friday afternoon.
The House Judiciary Committee Continues Its Work
Following the passage of House Resolution 201, delegates on the House Judiciary Committee gathered on Tuesday, June 26 for a presentation on the history of impeachments in West Virginia and an explanation of the procedure.
A notebook of information was distributed to committee members outlining this history, as well as potential evidence that may be used in drafting articles of impeachment. These materials also included two reports from the legislative auditor regarding the Supreme Court, the Judicial Investigations Commission statement of charges against Loughry and a federal indictment against him.
Delegates on the committee are now set to establish procedure, including what evidence can and will be considered and decide whether certain legal rights such as due process are appropriate in an impeachment.
Democrats on the committee have said due process isn’t applicable in cases of removing an elected official from their position.
“This is not a due process argument — this is about public office. There is no life, liberty or property issue,” said Del. Shawn Fluharty, a Democrat who sits on the House Judiciary Committee.
“Public office is a revocable position that belongs to the people of West Virginia — and, if a impeachable offense occurs, we have a duty to remove an office holder and restore the power to the people of West Virginia to elect a new person,” Fluharty added.
Del. Shawn Fluharty sits in the House Judiciary meeting on June 26, 2018.
On Thursday, the House Judiciary Committee announced additional meetings. Those meetings will take place Thursday, July 12 through Saturday, July 14. The committee will then recess to organize additional witnesses and gather further evidence and then reconvene the following week for another three days — beginning Thursday, July 19.
Chairman Shott also announced the appointment of a team of bipartisan impeachment “managers” who will oversee the process going forward.
In addition to Shott, the legislative managers include committee vice chairman Roger Hanshaw and Ray Hollen — both Republicans — and Democrats Andrew Byrd and Rodney Miller.
“I am confident that we can proceed in an impartial and non-partisan manner commensurate with the seriousness of the assignment entrusted to us,” Chairman Shott said in a written statement announcing the upcoming meetings.
