The 2018 impeachment of the West Virginia Supreme Court might be over, but lawmakers continue to write its epilogue three years later.
The House of Delegates on Tuesday adopted a resolution that would make it so that no court in West Virginia could intervene in impeachment proceedings in the Legislature.
House Joint Resolution 2 is a proposed amendment to the West Virginia Constitution that is a direct response to a Supreme Court decision that effectively halted the impeachment proceedings in the Senate in October 2018.
The House adopted the resolution, which required two-thirds of its members to support it, by a margin of 78-21.
It will advance to the Senate for consideration. At least two-thirds of the Senate likewise will have to vote to adopt the resolution for it to advance to the ballot.
If the Senate adopts the resolution, West Virginians will have the chance to vote on whether to change the constitution during the 2022 general election.
Supporters of the resolution say it’s necessary to restore the balance of power between West Virginia’s legislative and judicial branches. They argue that the Supreme Court overstepped its boundaries.
It was unfortunate that the Legislature had to consider the bill, said House Judiciary Chairman Moore Capito, R-Kanawha. He added that the justices who were impeached successfully found a loophole to avoid standing trial in impeachment.
“This resolution clarifies, even more unambiguously, that no other branch of government has any jurisdiction to tell the legislative branch what it can and cannot do in terms of impeachment,” Capito said. “One of the most important things we are doing here is bringing balance back to the separation of power.
“It’s not selfish for us to assert our responsibility. I would argue that it is our duty as legislators to assert our responsibility to the voters that put us here, because we are accountable with them.”
Speaking against the resolution, some lawmakers said the Supreme Court’s ruling was fair and that it is HJR 2 that would create imbalance between the two branches.
“We all know power should have a check and balance; that’s our system,” said House Minority Whip Shawn Fluharty, D-Ohio. “We’re taking away that. We’re saying that we are superior, that we’re infallible and we don’t screw up. All the evidence is that we have before, recently, and we’re so offended that we’re going to come in here and change the constitution. That’s not good government.”
If it is adopted in the Legislature and West Virginians vote to accept it, HJR 2 will make it so that no court in the state could get involved during impeachment proceedings in the Legislature.
Under the proposed amendment, no judge could issue a ruling on any cases regarding impeachment while the House is considering or voting on impeaching an official or while the Senate considers or conducts a trial for the impeached person. No one would be able to appeal any verdict the Senate renders following an impeachment trial.
“The people are going to have to say there has to be one independent body that can decide whether or not a government official can be removed and no other body can tell them how to do it,” said Delegate Brandon Steele, R-Raleigh.
In October 2018, the Supreme Court handed down a ruling in the case of then-Supreme Court Justice Margaret Workman vs. Senate President Mitch Carmichael, et al, commonly referred to as Workman v. Carmichael, that stopped ongoing impeachment proceedings in the Senate.
Workman was one of four of the state’s five justices who were impeached by the House in August 2018. The fifth justice, Menis Ketchum, resigned from office in July 2018, before impeachment proceedings began, effectively eliminating the ability to impeach him.
Workman, and then-justices Allen Loughry and Robin Davis, and current Justice Beth Walker were impeached.
The main focus of the proceedings were the court’s administration of state money, spent on highly personalized renovations justices made to their offices, as well as their use of state-owned vehicles, furniture and credit cards.
Loughry resigned from office in November 2018, after being convicted on criminal charges in federal court, and he served just less than two years in prison.
Ketchum also later pleaded guilty by way of an information in federal court and was sentenced to three years probation.
Davis announced her resignation from office the day after the House adopted articles of impeachment.
Walker stood trial in the Senate in October 2018, and senators voted to censure her. Walker remains in office. Workman also remained in office, but she didn’t seek re-election when her term was up in 2020.
After she was impeached, Workman filed an appeal with the Supreme Court in September 2018, saying her right to due process had been violated because the House of Delegates didn’t properly adopt the resolution that contained the articles of impeachment against her and the other justices.
The House had split up each article of impeachment contained in the resolution and voted on them individually. Workman said that was not in keeping with the rules of impeachment the House had established for itself.
Five circuit judges were appointed to the Supreme Court on a temporary basis to consider the case. In a 5-0 ruling on Oct. 11, 2018, the acting justices said the House had erred in its adoption of the resolution. Two of the acting justices, Jacob Reger and Duke Bloom, dissented from the decision, in part, and said the court didn’t have the means to stop impeachment proceedings and that it was up to the Legislature to correct the error.
On Tuesday, Steele referred to the process and decision as a “travesty.”
The Legislature didn’t reconsider any of its actions, which Delegate Larry Rowe, D-Kanawha, said Tuesday was the appropriate way to respond to the order in Workman v. Carmichael.
“We weren’t prevented from having the Senate send it back over to us,” Rowe said. “We could have fixed it without changing the constitution. The point is always important that, when people’s constitutional rights are involved, they have to be considered and treated fairly.”
By the time the court handed down its order, Walker already had stood trial, and the other justices’ impeachment trials were scheduled. The remaining trials never took place, and the Legislature took no further action on the matters at the time. Instead, the Legislature has proposed constitutional amendments for at least the past two years to clarify who may get involved in impeachment proceedings.
The House and Senate filed appeals with the U.S. Supreme Court in 2019, but the court declined to take up the case.
Capito said the impeachment process was painful for West Virginia and that it was part of the healing process for the Legislature to “let it go,” take the high road and deal with the ramifications of the court’s ruling at a later time.
“We respect the separation of powers,” Capito said. “Many times, decisions that are made by our Supreme Court, they’re not last because they’re right. They’re right because they’re last. I would submit to you that our decision in impeachment may be right to some, it may be wrong to some, but it’s right because it’s last.”