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Lawmakers tour Supreme Court as part of impeachment proceedings

Delegates Tom Fast, R-Fayette, (left) and Jason Harshbarger, R-Ritchie, walk by photos of West Virginia Supreme Court justices during a tour of the court’s offices on Monday. A space at the upper right appears to have been the place where Menis Ketchum’s portrait hung before he resigned last month amid a federal investigation.

CORRECTION: An earlier version of this caption misidentified Delegate Jason Harshbarger.

I’ve been at this job long enough to know when “nationally unprecedented” and “West Virginia” appear in the same sentence in a national publication, things can’t be good.

Or, as Slate magazine put it in a concise summary of Monday/Tuesday’s Supreme Court impeachment hearings, “What the hell is going on in West Virginia?”

I suspect most of West Virginia by now has settled into one of two camps:

One, that the greed and avarice of the justices has so corrupted the court that the only viable solution is to remove them all, even those whose actions don’t rise to the level of impeachable offenses.

Or two, that faced with the inevitability of having to remove Republican Justice Allen Loughry for clearly impeachable offenses, the Republican-run Legislature plotted to take out the entire court, including their public enemy number one, progressive Justice Robin Davis.

In isolation, either side can make a reasonable argument. However, national coverage, including an excellent article by the Washington Post’s Amber Phillips, suggests that what is happening in West Virginia is part of a national effort by Republican-controlled legislatures to usurp or minimize authority of state courts.

Phillips notes that legislators in 16 states have introduced more than 50 bills designed to marginalize state courts, with many of those bills calling for elimination of independent commissions that nominate judges.

She quotes an analysis from the nonpartisan Brennan Center for Justice, which states: “In the Trump era, courts frequently appear to be the last line of defense against partisan overreach. But in many states, courts’ vital role in our democracy is under threat.”

The Brennan Center pointed out that, prior to Monday and Tuesday, only two state judges had been impeached nationwide in the past 25 years.

Conspiracy theorists might point to the roll call vote early Tuesday morning to block immediate consideration of House Bill 201, which would require special elections to fill any vacancies on the court created by impeachment, rather than allowing Republican Gov. Jim Justice to appoint replacements until the 2020 primary elections. The motion to table passed on a party line 60-35 vote.

Conspiracy theorists may also point out that some legislators needed to get out of town by midweek to attend a three-day GO West Virginia fundraiser at The Greenbrier. (GO West Virginia is a dark-money 501(c) (4) organization that raises funds for the similarly named, pro-Republican Grow West Virginia PAC.)

According to a copy of the invitation, the event began with a cookout and cocktails at the house of former Senate president and 2016 Republican gubernatorial candidate Bill Cole, followed by two days of golf outings, with the designation, “Current elected officials to play in each foursome.”

(Again, we’re getting into some shaky ground Ethics Act-wise as to whether elected state officials can partake of free rounds of golf.)

According to the invite, contribution levels were $10,000 for the cookout and cocktails; $25,000 for the cookout, one round of golf, and one night’s stay at The Greenbrier; or $50,000 for the cookout, two rounds of golf, and two nights at The Greenbrier.

House Minority Leader Tim Miley, D-Harrison, released an e-mail from House Finance Chairman Eric Nelson, R-Kanawha, asking delegates to plan to attend the fund-raiser, noting that GO West Virginia “has been instrumental in supporting our efforts in the House,” having raised more than $2 million in the 2014 and 2016 election cycles.

“A number of corporate donors have committed to attend the event,” Nelson wrote.

Conspiracy theorists might suggest that Republicans are attempting to use the public’s outrage over $32,000 couches and $7,500 floor medallions as an opportunity to stack the high court.

•••

Now, it’s up to the Senate, which will convene Monday to vote on rules for the impeachment trials, to restore a measure of integrity to the proceedings.Some of the draft rules are encouraging, including that senators are to submit questions for witnesses and defendants in writing, avoiding the grandstanding we witnessed during much of House Judiciary and House hearings.

Other rules could open the door for mischief, including one allowing the Senate to overturn rulings of the presiding judge on any motions, objections, determination of admissibility of evidence, or procedural questions by a majority vote of senators present.

That mirrors Senate rules allowing a majority of members of the Senate to overrule decisions of the chair, but could open the way to some injudicious moments.

(Presiding Justice: “This document has no relevance to the case; therefore, I rule it inadmissible.”

Senator: “I say we let it in. All in favor, vote aye.”)

My prediction is that the Senate will vote to remove Loughry from office; after all, the preponderance of evidence — including a 25-count federal indictment and a 32-count Judicial Investigation Commission complaint — points to his guilt on numerous criminal and ethical violations.

I think the Senate will also vote to remove Chief Justice Margaret Workman, using the pretense that as chief justice, she should have exercised more leadership and fiscal responsibility — and that the majority will be able to pressure the needed Democrat vote or votes for removal by arguing that voting against removal is tantamount to advocating for lavish, wasteful spending.

I think the Senate will give a pass to Republican Justice Beth Walker, using some of the same arguments raised in the House, that as the relative newcomer to the court, she had little policymaking influence, and that her office renovation was comparatively less costly — even though the office had previously been freshly renovated just eight years prior, and did not require any costly structural or mechanical upgrades.

And, if that comes to be, watch the accusations of partisanship go through the roof.

••••••

Finally, I’ve had to bump this item for several weeks, and figured if I didn’t get it in now, I’d end up saving it for my memoirs:

Former longtime state Budget Office director Roger Smith took a little time recently from his retirement in Hilton Head to call to raise his strong objections to the recent action by the Justice administration changing that position from civil service classified to an at-will employee.

“They’re making a huge mistake,” he said.

Smith called after reading the Gazette-Mail article, via the miracle of the World Wide Web, regarding the state Personnel Board’s vote to remove civil service protections for the Budget Office director, effective back on July 21.

While the board cited a 2000 date when the director was made a civil service position, Smith said the position was protected when he took the job in 1988 — or at least he assumed it was.

“I never considered that job as being a policy maker. I always considered it as an advisor,” Smith said.

Smith had a reputation — like his successor, Mike McKown — for telling it like it is.

“The governors I worked for knew I’ll tell you what I think, not what I think you want to hear,” Smith said.

He conceded he probably would not have been so frank with his bosses had he not had built-in job security in state law.

Smith said there’s a couple of reasons why he thinks removing civil service protections is a bad decision.

First, he said it’s important to have continuity and institutional history in the office, which has been the case, considering that over the past three decades, the state has had a grand total of two Budget Office directors.

As an at-will position, there’s a great likelihood that each newly elected governor will want to install his or her own Budget Office director, reducing continuity to eight years, at best, he said.

Secondly, he noted, if you play fast and loose with the budget numbers, you can get the state in a world of hurt in a hurry.

We know from history, that in Gov. Arch A. Moore Jr.’s third term, if he wanted to do a particular major project or program, he simply artificially raised revenue estimates to cover the costs. As a result, when Gaston Caperton took office in January 1989, he inherited a $500 million budget deficit — or about $1.09 billion in today’s dollars.

A Budget Office director needs to be able to say “no” to the governor, or to tell him that a budget surplus is the result of a temporary upward blip in the economy, not the start of a robust recovery.

Our current governor doesn’t seem to be a person who responds well to being told “no,” or to having an advisor tell him a policy or approach he favors is fiscally unsound.

I haven’t asked McKown why he decided to leave the Budget Office after 12 years as director to join the state auditor’s office. I can say I got the impression McKown was extremely uncomfortable in the role of a prop for recent Justice press conferences to announce positive monthly revenue collection results.

Previously, monthly revenue reports had been announced by the Department of Revenue via conference call, and I suspect that the format will return the next month that state revenues miss estimates — I doubt if Justice will show up to hand out leis the next time the state revenue collections take a downturn.

Reach Phil Kabler at philk@wvgazettemail.com, 304-348-1220 or follow @PhilKabler on Twitter.

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