CHARLESTON — An agreement that would have dismissed Chief Justice Margaret Workman and Justice Beth Walker from impending impeachment proceedings is off the table.
The agreement was introduced on the morning of Sept. 11 during a pre-trial hearing in the state Senate as it prepared for the impeaching trial for up to four justices. But once the hearing resumed in the afternoon, state Senate President Mitch Carmichael (R-Jackson) ruled the resolution on censuring Workman and Walker was out of order after Senate Majority Leader Ryan Ferns (R-Ohio) questioned whether considering such a resolution without hearing any evidence.
After the resolution was ruled out of order, trial dates were set for the justices facing impeachment.
Walker's trial will begin Oct. 1. Workman's trial will begin Oct. 15. Suspended Justice Allen Loughry's trial will begin Nov. 12. And retired Justice Robin Jean Davis's trial was set for Oct. 29, but a motion calling for her to be removed from the impeachment proceedings was introduced. That was later voted down 15-19.
“Former Justice Davis no longer qualifies among the definition of persons who may be impeached," Senate Judiciary Chairman Charles Trump (R-Morgan) said. “Under the circumstances, the question is rendered largely moot.
“I would urge my colleagues in the Senate there is no purpose in proceeding with articles of impeachment on Justice Davis.”
During the morning segment of the hearing, House Judiciary Chairman John Shott said the agreement includes public censure for both Workman and Walker.
“It’s pretty clear that there’s one party who is most culpable and our primary goal is to make sure that party is held accountable,” Shott said, referring to suspended state Supreme Court Justice Allen Loughry.
Shott said the agreement includes public censure for both Workman and Walker, and it means the articles of impeachment against both of them would be dropped. He said he and other members of the House management team that filed the articles of impeachment believe this is a good first step to regain the public confidence in the state Supreme Court.
“We believe this is fair,” Shott said. “There will be and there are no winners.”
The announcement of the agreement came just hours after the Board of Managers of the House of Delegates responded in opposition to a motion to dismiss filed Sept. 7 by Walker’s attorneys.
Workman’s attorneys also filed a motion Sept. 7 seeking to have the impeachment trial start Oct. 15 or later.
Workman’s lawyers said they plan to file at least a dozen motions to dismiss the charges against her. They asked for more time because the issues are complicated.
“In a criminal case of comparable complexity, the parties would generally be afforded at least six months to digest the legal and factual issues in order to ready themselves for trial,” Workman’s lawyers wrote. “In a comparable civil matter, the parties would expect to have no less than one year to prepare their presentations, and frequently much longer.”
Walker, who was elected in 2016, is named in one article that says the four remaining justices – Workman, Walker, Loughry and now retired Justice Robin Jean Davis – failed to hold each other accountable regarding spending, remodeling state offices, travel budgets, use of computers for personal use and framing of personal items.
“In short, there is not a single allegation in Article XIV against Justice Walker individually — only generalized allegations against the court as a collective body,” her attorneys wrote. “Removal cannot rest on such allegations as a matter of logic or law.”
Walker’s lawyers call the article a “catch-all that purports to hold Justice Walker responsible for institutional policies that — as a lone justice with a single vote — she never had the authority to make.”
“Not only that, but several of the alleged policy failures in Article XIV arose years before Justice Walker took the bench.”
The articles of impeachment were adopted Aug. 13 by the House of Delegates. Seven of the articles name Loughry, four name Davis, three name Workman and one names Walker.
Earlier during the Sept. 11 pre-trial hearing, temporary Justice Paul Farrell was sworn in as the president judge for the impeachment trial and all of the state Senators were sworn in as jurors for the trial. After the agreement with Workman and Walker was announced, the Senate adjourned until the afternoon.
State and federal investigations into spending practices of the Supreme Court has spurred several changes at the court.
Justice Menis Ketchum resigned in July before a federal information was filed against him. He pleaded guilty Aug. 23 to one count of wire fraud. His sentencing is Dec. 6.
Ketchum admitted to using a state-owned vehicle and a state purchasing card on golf trips to Virginia, according to a federal information filed last month. He had resigned and retired from the court last month, weeks before the information related to misuse of a state vehicle was released.
Ketchum, 75, faces a maximum sentence of 20 years in prison and a $250,000 fine. He is free on a $100,000 bond pending sentencing.
Ketchum used a state-owned vehicle to commute from his home in Huntington to the court in Charleston starting in 2012, according to the information. That was allowed by his fellow justices.
Davis resigned in August on the same day the House of Delegates passed articles of impeachment against her, Workman, Loughry and Walker. It is likely that Davis will not be included in the impeachment trial.
Loughry faces a 25-count federal indictment after the federal grand jury issued another second superseding indictment against him earlier this month. The new charges allege Loughry, 48, used a state vehicle to travel to his native Tucker County to attend a court hearing for his father and used a state credit card to purchase gas for personal travel. In total, Loughry faces 17 counts of wire fraud, three counts of mail fraud, three counts of making false statements to federal agents, one count of obstruction of justice and one count of witness tampering.
He also is named in a 32-count charge from the state Judicial Investigation Commission of violating the Code of Judicial Conduct by misusing state resources and lying about it.
"We've been dismantled in some ways and we've lost some level of confidence and some level of trust," Justice said during his Aug. 25 press conference announcing the appointments. "On a nationwide basis, it's cast a black eye. What we need to do more than anything is repair, move on and show the nation how committed we are as West Virginians to have a solid court and, in my opinion, without any question, a conservative court."
On Aug. 25, Gov. Jim Justice appointed U.S. Representative Evan Jenkins (R-W.Va.) and former House Speaker Tim Armstead (R-Kanawha) to serve on the court until the special election this November to elect permanent Justices. There are legal challenges to those appointments pending.
Workman previously appointed Farrell, a Cabell Circuit Court judge, to sit in for Loughry during his suspension.
Also, 20 people have filed to run for two seats on the state Supreme Court in this November's general election. There are 10 candidates who filed for each seat.
The Division 1 seat has two years left on Ketchum's term, and the Division 2 seat has six years left on Davis's term.
Those who filed for the Division 1 seat are Armstead, Charleston attorney Harry C. "Bo" Bruner Jr., Williamson attorney Robert H. Carlton, Huntington attorney Ronald H. Hatfield Jr., Charleston attorney Mark Hunt, Clay County attorney Hiram "Buck" Lewis IV, Barboursville attorney D.C. Offutt Jr., Kanawha Circuit Judge Joanna Tabit of Charleston, Berkeley Circuit Judge Chris Wilkes of Martinsburg and Nitro attorney Jeff C. Woods.
Those who filed for the Division 2 seat are Jenkins, Kanawha Family Court Judge Jim Douglas of Charleston, Lewisburg attorney Robert J. Frank, former state Senate President Jeff Kessler of Glen Dale, Hurricane attorney Brenden D. Long, Wheeling attorney Jim O'Brien, Charleston attorney William Schwartz, Wheeling attorney Marty "Red Shoes" Sheehan, Charleston attorney Dennise Renee Smith and Boone Circuit Judge William S. Thompson of Madison.