Five temporary justices to the West Virginia Supreme Court ruled this week that they won’t recall a ruling that effectively canceled the impeachment trial of Chief Justice Margaret Workman and gave other justices grounds to avoid their impeachment trials in the state Senate.
The justices ruled on Nov. 19 the court doesn’t have inherent authority to recall its ruling, and there were no extraordinary circumstances to warrant recalling the ruling handed down on Oct. 11, four days before Workman’s impeachment trial was set to begin in the Senate.
The Senate filed a motion on Nov. 5 asking the court to recall its Oct. 11 ruling, as well as a petition for the court to rehear the case.
Workman filed the original petition with the state court on Sept. 21 seeking a writ of mandamus to have the court order the Senate to stop impeachment proceedings against her. She also filed motions with the court and in the Senate to delay her impeachment trial, set for Oct. 15, until her case was heard by the court.
Workman said the articles of impeachment against her violated the separation of powers in government clause in the state constitution and that her due process has been denied in the proceedings.
She also said members of the House of Delegates never formally adopted the resolution that contained the articles of impeachment against her and the other current and former justices.
Harrison Circuit Judge James Matish served as acting chief justice in the case. He appointed four other circuit judges to preside with him: Hancock Circuit Judge Ronald E. Wilson; Kanawha Circuit Judge Duke Bloom; McDowell Circuit Judge Rudolph J. Murensky II; and Upshur Circuit Judge Joseph Reger.
In ruling in Workman’s favor, the court invalidated all four articles of impeachment against Workman and established a precedent that effectively invalidates articles of impeachment against two former Supreme Court justices.
The court ruled that the Legislature violated the due process clause of the Constitution because the House of Delegates didn’t formally adopt a resolution that contained the 11 articles of impeachment against Workman, Justice Beth Walker and former justices Robin Davis and Allen Loughry.
Davis and Loughry each filed motions to expand the court’s ruling to their impeachment trials, but the court denied those motions, saying the temporary Supreme Court no longer had jurisdiction in the matter.
The Senate was represented by J. Mark Adkins, Floyd E. Boone Jr., Richard R. Heath Jr., and Lara R. Branfass, all of Bowles Rice LLP, in Charleston.
Attorneys for the Senate argued that the Supreme Court had discretionary power to recall its ruling, “given the unique procedural posture of this matter” and the constitutional gravity of the situation.
“This is, by all accounts, a watershed moment in the history of our state government,” Adkins wrote in the motion. “The writ issued in this case addresses the form, processes, and nature of impeachment in this state and the constitutional separation of powers between and among the branches of government in this state.”
Workman was represented by Marc E. Williams, Melissa Foster Bird, Thomas M. Hancock and Christopher D. Smith, of Nelson Mullins Riley & Scarborough LLP, in Huntington.
Workman’s attorneys argued that the Supreme Court did not have jurisdiction over the case under current rules of procedure, that the legal precedent used in the Senate’s argument was misplaced and that the circumstances of the case didn’t meet the legal standard of being extraordinary enough for the court’s October ruling to be recalled.
The attorneys also opposed the Senate’s complaint against the court’s ruling, saying it was actions taken by the Senate that necessitated the court’s action.
“The Senate refused to stay the impeachment proceedings, actively opposed Chief Justice Workman’s attempts to stay her trial until the petition could be heard, and repeatedly stressed the need for this Court to hastily decide this case, forcing the Court to issue the Order and Mandate on the same day,” Williams said in the response. “The Senate cannot complain that the Court acted hastily when it actively encouraged the Court to swiftly decide this matter.”
The West Virginia House of Delegates adopted individual articles of impeachment against the four sitting justices at the time on Aug. 13.
Walker was the only justice to stand for impeachment trial in the Senate, and the Senate voted against adopting the single article of impeachment against her on Oct. 2. The body instead voted to publicly censure Walker, who will become chief justice of the court on Jan. 1, 2019.
The impeachment trials for Workman, Davis and Loughry didn’t take place, in the wake of the court’s ruling in Workman’s case.
Former justice Menis Ketchum was not subject to impeachment because he announced his resignation from the court on July 12, one day before impeachment proceedings began in the House.
Ketchum pleaded guilty to one count of wire fraud in U.S. District Court for Southern West Virginia and is to be sentenced on Jan. 30.
Davis announced on Aug. 14 that she was leaving the court, and made her retirement effective Aug. 13.
Loughry notified Gov. Jim Justice of his resignation from the court on Nov. 10, and his resignation was effective Nov. 12.
On Oct. 12, a federal jury convicted Loughry on seven counts of wire fraud, two counts of making false statements to federal investigators and one count each of witness tampering and mail fraud. The jury acquitted him of 10 other charges, and jurors deadlocked on one count of wire fraud.
Loughry is challenging nine of the 11 convictions against him. He is scheduled to be sentenced on Jan. 11.
Loughry additionally faces a hearing before the West Virginia Judicial Hearing Board in regard to 33 charges that he violated the state’s Code of Judicial Conduct, the ethical rules for magistrates, judges and justices.
The hearing is scheduled for Jan. 14.
Ketchum and Loughry remain out of jail on personal recognizance bonds.
