CHARLESTON –Chief Justice Margaret Workman says the impending state Supreme Court impeachment trials in the state Senate must be halted because the House of Delegates overstepped its bounds and tried to undermine the separation of powers of state government.
Workman filed a Petition for a Writ of Mandamus Sept. 21 with the state Supreme Court regarding the Articles of Impeachment passed Aug. 13 by the House. The respondents are Senate President Mitch Carmichael, President Pro Tempore Donna J. Boley, Senate Majority Leader Ryan Ferns, Senate Clerk Lee Cassis and the entire state Senate.
"This writ is not intended to provoke a constitutional crisis; it is intended to prevent one," it states.
In the petition, Workman argues that the Articles of Impeachment violates the principles of separation of powers by usurping powers explicitly reserved for the judicial branch of government. Specifically, she says the articles exert legislative control over the judicial branch’s budget powers and appropriate the judicial branch’s exclusive power to regulate judicial conduct.
“There are serious problems with the impeachment process that need to be addressed in a court of law, not in a political setting,” said Marc Williams, one of Workman’s attorneys.
Workman’s petition also says the Articles violate her constitutional right to due process by failing to afford her adequate due process because she received no specific notice of the charges asserted against her and by posing a “substantial risk of erroneously depriving” her of her pension rights because the House “knowingly ignored the procedures it adopted to govern the impeachment process when attempting to adopt its flawed Articles of Impeachment.”
Workman also maintains the Articles violate the state constitutional precedent for appointment of senior status judges. And, she says the House never voted on the resolution authorizing the Articles of Impeachment, making the Senate trial illegitimate and unconstitutional.
“On August 13, 2018, the West Virginia House of Delegates broke the law,” Workman’s petition states. “On that day, the House adopted numerous Articles of Impeachment setting the petitioner to stand trial before the West Virginia Senate. What nefarious deeds of the petitioner served as the basis for these Articles? The petitioner had the audacity to fulfill her constitutional mandate of ensuring that West Virginia courts efficiently serve West Virginia citizens by appointing senior status judges to fill judicial vacancies. She had the audacity to exercise her constitutional authority to pass and utilize a budget for the state’s judicial branch.
“In short, she had the audacity to perform her duties and exercise the powers mandated to her by the West Virginia Constitution. Despite the clear edicts of the West Virginia Constitution, the House overstepped the bounds of its constitutionally-apportioned power and initiated proceedings to punish the petitioner for exercising the powers explicitly provided to the judicial branch by the West Virginia Constitution.
“This cannot stand. This court must order the Senate to halt proceedings that undermine the separation of powers principles in the West Virginia Constitution.”
Workman also argues that the judicial branch has the sole authority to regulate the conduct of judges. She says impeachment Article 14 usurps that power.
She said she realizes the Legislature possesses “the sole power of impeachment.”
“However, the sweeping authority granted to the Legislature through the Impeachment Clause is limited by the requirement that impeachment proceedings comply with the law,” Workman argues. “
Workman filed motions to have Justice Beth Walker and Judge Paul Farrell, who is sitting on the court in place of suspended Justice Allen Loughry, disqualified from her case. Both of them, as well as Workman, voluntarily recused themselves within hours of the petition being filed.
Workman also appointed Senior Status Judge and former Justice Thomas McHugh as acting Chief Justice in the matter.
U.S. House Rep. Evan Jenkins and former House of Delegates Speaker Tim Armstead have been appointed by Gov. Jim Justice to temporarily hear cases following the retirements of Justice Menis Ketchum and Justice Robin Jean Davis this summer. But those appointments are being challenged at the state Supreme Court as well.
The retirements of Ketchum and Davis came in the wake of state and federal investigations into spending practices of the Supreme Court.
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.
An information is used by federal authorities when a defendant agrees to plead guilty and waives his right to an indictment. An information can’t be filed without a defendant's consent. It also usually means the defendant is cooperating with federal prosecutors. U.S. Attorney Mike Stuart and federal investigators have been examining the state Supreme Court’s spending practices.
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 earlier this month on the same day the House of Delegates passed articles of impeachment against her, Workman, Loughry and Walker. They all face impeachment trials in the state Senate beginning Oct. 1.
Loughry faces a 25-count federal indictment after the federal grand jury issued another second superseding indictment against him. Loughry, 48, 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.
Also, 20 people have filed to run for Ketchum and Davis’s 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.
Workman is being represented by Williams, Melissa Foster Bird, Thomas Hancock and Christopher Smith of the Huntington law firm of Nelson Mullins Riley & Scarborough.
West Virginia Supreme Court of Appeals case number 18-0816