Nearly two years ago, a temporary West Virginia Supreme Court stopped impeachment of high court justices in its tracks.
Legislators have not forgotten.
They still aren’t happy with the ruling that brought an abrupt end to the West Virginia Senate’s consideration of whether justices should be removed from office, and they aren’t holding back their feelings as they try to correct what they say was a constitutional wrong.
“That decision was one of the worst judicial rulings in the history of jurisprudence,” Senate President Mitch Carmichael, R-Jackson, said last month. “It rebalanced the original Founding Fathers’ concept of equal branches of government and made the Supreme Court a superior branch of government.”
During a Jan. 29 meeting, Senate Judiciary Chairman Charles Trump, R-Morgan, said the decision was a “vile, egregious usurpation of legislative power and authority.”
“In my opinion, the Workman v. Carmichael decision decided by the temporary Supreme Court was the grossest invasion by one department, branch, of the government into another that I’ve seen in West Virginia, maybe ever,” Trump said. “The more I thought about that Workman v. Carmichael decision, the breadth of the wreckage it created in separation of powers could not be fixed by an amendment just to the section of the constitution that relates to impeachment.”
He said Senate Joint Resolution 7, which is set to be considered by the full Senate on Wednesday, would re-balance the powers of the legislative, executive and judicial branches of state government.
The resolution, officially titled the “Preserving the Separation of Powers Amendment,” would amend the West Virginia Constitution to prevent any judge from making any rulings in any ongoing action in the Legislature, including bills and resolutions.
If approved by two-thirds of the state Senate and House of Delegates, voters would then approve or reject the change, as they do with all constitutional amendments.
The impeachment of the entire Supreme Court was seen by some as an attempt to replace the justices with ones more suited to Republican legislative leaders and Gov. Jim Justice. High court Justice Robin Davis, who was impeached and then resigned, said in a federal court filing that the charges were “a pretext to remove all four justices on West Virginia’s highest court so that the governor could replace the popularly elected justices with Republican men and create a ‘conservative court’ for years to come.”
Indeed, two of the three new justices appointed by the governor were men who had, shortly before, been Republican officeholders: former congressman Evan Jenkins and former House speaker Tim Armstead.
Justice Margaret Workman, who was chief justice at the time of the impeachment trials, declined to comment Tuesday. Armstead said the justices hadn’t seen everything proposed by the Legislature, but that they are generally in contact with the Legislature.
Even among legislators who didn’t like the Supreme Court decision, there’s disagreement about what their next action, if any, should be.
Last year, the Senate approved a resolution that said no West Virginia court could interfere with impeachment proceedings in the Legislature. That measure didn’t get the required two-thirds approval in the House, although delegates supported it by a 54-41 margin.
Democrat Sens. Richard Lindsay of Kanawha County and Mike Romano of Harrison County said they worry that this year’s proposal is too broad, because it says all legislative matters are off limits to judges.
“We have a very delicate separation of powers,” Lindsay said during the Jan. 29 Senate Judiciary meeting. “We have coequal branches [of government] that should stay in their own sphere, and I just have real heartburn over changing our constitution and specifically broadening those rules.”
Romano said he agreed with Trump that the Supreme Court didn’t have the authority to review House of Delegates rules, but he said judges should be free to make their own assessments.
“I think [SJR 7] unnecessarily could chill the checks and balances within our constitution and the division of the three branches of government,” Romano said.
Until the Legislature’s authority is made clear in the constitution, the Workman v. Carmichael decision puts the balance of government in West Virginia in a murky position, House Speaker Roger Hanshaw, R-Clay, said in January.
“We, the Legislature, are intended by the constitution to have a check on the executive and judicial branches,” Hanshaw said. “Just as they are intended to have a check on us, we’re intended to have a check on them. The viability of that check on the other branches of government is no longer clear, so, sooner or later, we must clarify that position.”
Hanshaw and House Judiciary Chairman John Shott, R-Mercer, said they had not reviewed the Senate resolution as of Tuesday.
Shott said the court’s ruling in Workman v. Carmichael puts the Legislature at an unfair disadvantage the next time legislators consider impeaching a member of the executive or judicial branch.
“If we don’t take these steps with these amendments, the next time a similar situation arises, we will not be in a position to respond in a way that, I think, the constitution anticipates we should be able to respond,” Shott said. “So we’re starting in a hole.”
An impeachment mess
In August 2018, the House of Delegates voted to impeach four of the five Supreme Court justices. The fifth justice at the time, Menis Ketchum, resigned from office the day before the House began its impeachment investigation.
Ketchum and then-Justice Allen Loughry were each sentenced for federal crimes related to their actions on the court. Ketchum is serving three years probation, and Loughry is serving his two-year sentence in a federal prison in Williamsburg, South Carolina, according to the Federal Bureau of Prisons website.
Workman, Walker and then-Justice Robin Davis didn’t face any such criminal accusations. The articles of impeachment, in broad terms, accused the justices of abusing their authority; misusing state resources, including cars and money; and failing to establish or enforce policies that would have kept in check the court’s resources.
Most notably, they were accused of grossly overspending more than $1.5 million in highly personalized renovations to their offices in the East Wing of the Capitol.
“I called it a cavalier indifference during the impeachment, and that’s what it was,” Shott said. “I just think [the justices] didn’t really consciously consider that this was public money, especially under the context of the budget issues we were having. We were cutting higher education. We were cutting Medicaid. There were a lot of people that were affected by those cuts, and yet the Supreme Court was spending money like it was water. The big issue was accountability.”
Workman, Davis and Loughry also were accused of violating parts of the state Judicial Code of Conduct, the ethical code for judges and magistrates, as well as a state law prohibiting overpayment of senior status judges (semi-retired judges who fill in when other judges are unable to preside).
In September 2018, Workman challenged the impeachment in the state Supreme Court, saying her right to due process was violated when the House of Delegates didn’t properly adopt the resolution that contained the articles of impeachment against her and the other justices.
She also said it wasn’t the Legislature’s place to determine whether any judge violated the Judicial Code of Conduct, saying that authority belongs to the court.
Workman, who was chief justice at the time of impeachment, appointed former Supreme Court justice Thomas McHugh to select a judge to serve as chief justice in her case.
McHugh appointed Harrison Circuit Judge James Matish as acting chief justice. Matish then appointed four other judges to make a temporary Supreme Court: Hancock Circuit Judge Ronald Wilson; Upshur Circuit Judge Jacob Reger; Kanawha Circuit Judge Duke Bloom; and McDowell Circuit Judge Rudolph Murensky II.
On Oct. 11, 2018, the acting justices ruled in Workman’s favor, agreeing that the Legislature shouldn’t have acted on the Judicial Code of Conduct or the law regarding senior status judges, which they said wasn’t constitutional.
The acting justices also said the House made an error when it failed to adopt the resolution containing the articles of impeachment.
Reger and Bloom dissented, saying that, while the House made an error, it wasn’t the court’s place to take action to correct it. Reger and Bloom said the Legislature could correct the error by properly adopting a new impeachment resolution.
The court’s opinion effectively stopped the impeachment trials for Workman, Davis and Loughry.
Walker had already stood trial in the Senate on Oct. 1 and 2. The Senate ultimately acquitted her of the article of impeachment against her and voted to censure her, rather than remove her from office.
The Senate and the House each appealed the state court’s decision to the U.S. Supreme Court in March 2019. Justices there asked for further briefings in the case, but then decided not to consider the appeals.