Judge wrong about pardon letter, Justices rule

By Steve Korris | Oct 28, 2010


CHARLESTON – Monongalia Circuit Judge Russell Clawges exceeded his authority when he ordered clerks of the Legislature to delete a letter about a pardon from their journals, the state Supreme Court of Appeals has ruled.

Clawges would have heard a contempt motion against Senate Clerk Darrell Holmes and House of Delegates Clerk Gregory Gray if the Justices hadn't stopped him.

"It is a fundamental principle of constitutional law that under the Separation of Powers doctrine, courts have no authority – by mandamus, prohibition, contempt or otherwise – to interfere with the proceedings of either house of the legislature," Justice Menis Ketchum wrote in an Occt. 27 opinion. "It is also a fundamental principle that under the Separation of Powers doctrine, courts have no authority to interfere with the actions of the Legislature's clerks in the keeping of legislative journals, so long as the clerks are acting in obedience to the will of those bodies."

Gov. Bob Wise granted the pardon in 2005 to a male West Virginia University graduate who shot a starter pistol at a fraternity party in 1994.

The man pleaded guilty to charges of public intoxication, brandishing and carrying a concealed weapon, though the pistol couldn't have fired a bullet.

He found a job as a police officer, and sought a pardon to minimize the impact of the convictions on his chances for promotion.

Wise pardoned him in his final week in office, reporting his action and reasons by letter to the Senate and House as the state Constitution required.

Holmes and Gray recorded the letter in their journals.

In 2008, the man filed a petition in Monongalia County to expunge records of the convictions.

Clawges granted it and ordered anyone with a record of the arrest and charges to destroy it and reply to any inquiry that no record exists.

The man mailed the order to Holmes and Gray, who refused to carry it out.

Clawges issued a broader order and directed the circuit clerk to serve it, but the clerks still refused to carry it out.

The man retained a lawyer, who advised Holmes and Gray last year that he would seek sanctions against them.

The lawyer told them they didn't need to remove the letter from printed journals but only from their website.

The clerks still refused, and the lawyer said he would move for contempt.

On Nov. 19, the Legislature enacted a bill removing pardon letters from the definition of records that might be expunged.

The man moved for contempt sanctions in spite of the new law, and Clawges ordered Holmes and Gray to show why he shouldn't hold them in contempt.

When the clerks appealed, the man argued that reprinting a governor's pardon letter is ministerial and not a core legislative function.

The Justices wouldn't treat it so lightly.

"The compilation of the journals by the clerks is daily subjected to correction and approval by the members of each house," Ketchum wrote. "The contents of the journals are governed by rules exclusively within the province of the Legislature.

"The Governor is constitutionally required to report pardons to the Legislature, and the clerks of the Legislature are required by rule to include those gubernatorial reports in the journals. To separate the printed journals from the version viewed on the internet by legal fiction would create an ambiguity or inconsistency between the two which would undermine the validity and utility of legislative records."

He wrote that printed journals and digital copies "must speak for themselves with a unified voice."

Ray Ratliff and Mark McOwen of Charleston represented Holmes and Gray.

John Hedges of Morgantown represented the man.

Ketchum identified the man as A. V., writing that the Justices respected his wish to limit the effect of youthful indiscretions on future employment.

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