As the House of Delegates and Senate move forward with impeachment proceedings against Supreme Court justices, some observers believe one important element is missing: The House Judiciary Committee and the full House have never voted to adopt the House resolution authorizing the articles of impeachment (HR 202).
“They’re in deep doo-doo, just to be quite honest about it,” said Greg Gray, former longtime House clerk and parliamentarian, known nationally for his expertise on parliamentary procedure.
“If they didn’t vote on the resolution, but simply voted on the articles of impeachment, they have got a problem on their hands,” Gray said.
He believes it’s as if the House voted on amendments to a bill, but never voted to pass the bill itself, and sent the Senate the series of amendments rather than the actual legislation.
According to the Legislature’s website, the current status of the impeachment resolution is that it is still in House Judiciary with the designation of DP, which refers to the pending recommendation that the resolution “do pass.”
Gray said failure to vote on the impeachment resolution violates precedent set in the 1989 impeachment of then-Treasurer A. James Manchin, as well as the rules for the impeachment proceedings that the House adopted on June 26 at the start of the impeachment process.
“My position is that the process is defective,” Gray said. “The House has fallen short of addressing the formal question, which is the resolution adopting impeachment.”
Current House Clerk Steve Harrison said he believes the House acted properly, since members voted on each individual article of impeachment.
“Impeachment has been done in different ways in the history of the state,” Harrison said. “The House divided the articles and voted on them individually, and the articles which we adopted is what was presented to the Senate.”
However, Gray noted that in the 1989 impeachment, House Judiciary members and the full House also voted individually on each article of impeachment, through a process known as seriatim consideration, and then voted to formally adopt the impeachment resolution.
“The proper procedure is to vote each motion of impeachment up or down, and then you vote on the total package,” he said. “The current precedent we’re following is 1989.”
Harrison argued that the House was relying on records of impeachment proceedings from 1875, when the House did not use a formal impeachment resolution.
The failure to vote on the resolution also is at odds with the resolution the House adopted on June 26 setting ground rules for the impeachment hearings (HR 201).
Those rules state that if House Judiciary recommends impeachment of any or all justices, it is to “present to the House of Delegates a proposed resolution of impeachment and articles of impeachment,” and that if the full House adopts the impeachment resolution, the House is to deliver the resolution to the Senate “for consideration by the Senate according to the law.”
During the floor session that spanned nearly 14 hours on Aug. 13 into Aug. 14, there was confusion about whether the full House would vote on the impeachment resolution.
At about 6:30 p.m. on Aug. 13, House spokesman Jared Hunt sent an email to media covering the proceedings, stating:
“While the question of adopting House Resolution 202 has been divided to allow Delegates to adopt each article individually, the House will still have to come back and vote to adopt House Resolution 202 in its entirety once Delegates have voted on each article and the amendments to them.
“So while the House is considering each individual article of impeachment right now, the resolution formally containing all the articles of impeachment will not be adopted and sent to the Senate until the final vote on the resolution in its totality “(after each individual article has been either adopted or rejected).”
However, after the House reconvened about 9:15 p.m. from a dinner break recess, Hunt sent a second email advising:
“After further discussion and research on parliamentary procedures, it has been determined that it is not necessary to come back and vote to adopt House Resolution 202 in totality. The division of the original question before the House – which was to adopt House Resolution 202 – into separate consideration of the individual articles within that resolution, and the separate votes on each part, is all that is required. So there will be no overall vote on House Resolution 202 at the conclusion of consideration of the individual articles and amendments. Apologies for the confusion.”
Hunt said Tuesday that House leaders, with the exception of then-Speaker Tim Armstead, along with Harrison, staff attorneys and the House parliamentarian signed off on the decision, prior to his issuing the 9:15 p.m. email. Armstead on Tuesday resigned from the House, officially announcing his candidacy to run for a vacated seat on the state Supreme Court.
Sources close to the House indicate that the initial omission occurred on Aug. 7, when after a long day of debating and voting on articles of impeachment, the House Judiciary Committee adjourned without voting on the impeachment resolution.
That would have put the full House in the posture on Aug. 13-14 of having to take another recess in order to call a Judiciary Committee meeting to allow a committee vote to advance the resolution to the full House.
House Judiciary Chairman John Shott, R-Mercer, did not immediately respond to requests for comment, and Hunt said he had not heard of that being an issue in the House decision to not vote on the resolution.
Gray, who was not retained as House clerk when Republicans took control of the House in 2015, said if there was doubt about the need to vote on the resolution, the House should have erred on the side of caution.
“One of the mantras we follow in interpreting parliamentary law is that surpluses are always OK,” he said. “It’s better to vote twice on one issue than to not have a vote on it at all.”