West Virginia Record

Sunday, October 13, 2019

Supreme Court says impeachment proceedings are a 'fishing expedition'

State Supreme Court

By Chris Dickerson | Jul 13, 2018

Former state Supreme Court technology director Scott Harvey testifies during impeachment proceedings July 13. | Perry Bennett/West Virginia Legislative Photography

CHARLESTON – The state Supreme Court’s interim administrative director says the impeachment proceedings being conducted by the Legislature is “a full-fledged fishing expedition.”

Barbara Allen sent a letter July 13 to Del. John Shott, chairman of the House Judiciary Committee that’s handling the impeachment proceedings for justices of the Supreme Court. The proceedings began July 12.

In her letter, Allen said the court has cooperated fully with state and federal investigations since the beginning of 2018. Those investigations have resulted in a Judicial Investigation Commission statement of charges against suspended Justice Allen Loughry as well as a 22-count federal indictment against him.

“The court has promptly and fully provided more than 50,000 documents to the United States Attorney and a similar volume of material to the Legislative Auditor, as well as myriad documents to the Legislative Commission on Special Investigations and the Judicial Investigation Commission, and to the media in response to numerous FOIA requests,” Allen wrote. “Additionally, the court has made its employees available for questioning by state and federal investigators without limitation.”

While she says the court understands the right to conduct such an inquiry, Allen said the court has “significant concerns both as to the scope of these impeachment proceedings and the procedures governing them.”

Allen says House Resolution 201, which empowered the House Judiciary to investigate these matters, is too vague. That’s why she calls it a “improper fishing expedition,” and she says it allows the separation of powers to be clouded.

“In short, a full-fledged fishing expedition is now underway before a committee whose members perform multiple functions: they are prosecutors, making such allegations as they deem appropriate; they are judges, deciding on the relevance and materiality of the evidence for themselves and determining the standard of proof they deem sufficient; and they are jurors, deciding on whether their own charges have been established by their own evidence to their own satisfaction,” Allen wrote.

She also says the information already is “practically available” through numerous documents and interviews already conducted by the Legislative Auditor, the JIC and the CSI. Allen also notes that the court understood the CSI couldn’t share information because it was gathered in conjunction with the federal investigation that led to Loughry’s indictment.

“None of these employees are alleged to have committed any wrongdoing, and several have expressed nervousness and reluctance at the prospect of undergoing additional questioning by your members about anything and everything, all while being live-streamed to the world,” Allen wrote. “The purpose of this letter is to see if we can find common ground that will enable us to assist the Legislature in fulfilling its proper duties while also protecting the judicial branch of government from any improper incursion, interference or interruption in its duties.”

During a break for lunch from the second day of proceedings, Shott responded to Allen’s letter.

“The only response I have to that is each of the justices took an oath to uphold the Constitution,” Shott told reporters. “The Constitution provides a process for impeachment, and that process was triggered by the resolution adopted by the House of Delegates. And, we are following up on our Constitutional duty to do that. Because the justices uphold the Constitution, I expect they will honor their duty and provide whatever cooperation we need.”

The second day of testimony turned to former Supreme Court employees. The first one was former technology director Scott Harvey. Besides confirming information in documents already public and providing additional details to that, Harvey talked about he and his staff going to Loughry’s house on four occasions to run wire and install equipment. Loughry had two state-owned desktop computers and one laptop. One of the desktops wasn’t connected to the Supreme Court system, and it had personal photos and games installed on it.

Harvey said he wasn't sure if he should install the additional computer in Loughry's home that wasn’t connected to the Supreme Court system, but he said he didn't tell former court administrator Steve Canterbury or the other justices.

"Fear basically tells you to do the job or suffer the consequences,” he said, noting his fear wasn’t because he was doing something illegal. He said he just felt it was not in his moral guidelines.

Harvey said he felt threatened on at least two occasions from former Justice Menis Ketchum, saying the recently retired justice threatened firing him. One time it involved getting state Treasurer John Perdue to sign a document related to a change in the mechanics in which payments to the court were processed.

“Personally, I felt like I was in limbo,” Harvey said. “You didn’t know day-to-day if you were going to be employed.”

Harvey also said he was instructed to hire a tech consultant he didn’t think was needed. He indicated he was told to do so by Canterbury at the request of current Chief Justice Margaret Workman. He said he understood the consultant, named John Pritt, previously had worked on one of Workman’s election campaigns.

Harvey also said he felt pressure from recently retired court administrator Gary Johnson to use equipment purchased with federal grant money to replace broken video equipment that wouldn’t have been used properly according to the grant. Loughry said he refused to do so.

Harvey said he left the court in November after negotiating a resignation. He worked for the court for about a decade, including six years in the technology director position. He said he felt tension after his refusal to follow Johnson’s orders.

Following lunch, Fletcher Adkins answered questions. He is the former assistant director of administrative services. He retired in 2015 after 35 years with the court. He talked about a variety of matters, including the moving of the antique Cass Gilbert desk from the Capitol to Loughry’s home, that has been mentioned in the JIC report and other documents.

The committee wrapped up the second day of hearings by listening to audio of Loughry's appearance this spring before the House Finance Committee and watching raw video of an interview Loughry did with WCHS-TV reporter Kennie Bass.

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West Virginia House of Delegates West Virginia State Senate West Virginia Supreme Court of Appeals

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