Workman wants articles of impeachment against her dismissed, also seeks trial delay

By Chris Dickerson | Sep 24, 2018

CHARLESTON – State Supreme Court Chief Justice Margaret Workman has filed motions with the state Senate to have the articles of impeachment against her dismissed.

She also seeks to have her impeachment trial delayed until after the Nov. 6 general election. It is scheduled for Oct. 15, two weeks after the first scheduled impeachment trial against Justice Beth Walker.

“The scope and nature of the negative publicity which has attended every aspect of this case has created a prejudicial environment, especially in light of the upcoming election, which threatens respondent’s right to a fair and impartial impeachment trial,” Workman wrote in her motion.

Workman, Walker, retired Justice Robin Jean Davis and suspended Justice Allen Loughry all face impeachment trials before the state Senate. House Minority Whip Mike Caputo (D-Marion) has asked that retired Justice Menis Ketchum be included in impeachment proceedings as well.

As for Workman, she is named in three of the 14 articles of impeachment. One essentially is a catch-all article saying the justices failed to hold each other accountable, accusing them all of maladministration. The other two naming Workman focus on her time as chief justice when she issued orders allowing senior status judges to exceed a salary cap when filling open seats across the state.

Each of Workman’s motions say there is no basis for any of the accusations against her.

In the catch-all article about maladministration, Workman’s attorneys note the word “maladministration” doesn’t appear in the article.

“Without a particularized description of the charges and theories against her, respondent will have an inordinately short time to prepare to defend herself against a multiplicity of allegations may of which, confusingly, were refuted on their face by the evidence before the House,” the motion states.

She contends she is being held liable for policies that should have been handled by the court administrator and that there is no allegation “that she caused the acts or omissions by inadequately supervising or controlling the person appointed to that position. … Absent any allegation (and there is none) that respondent caused the administrative director to engage in such waste or to deficiently perform the duties and responsibilities of the job, she cannot be found guilty of Article XIV as a matter of law.

“Indeed, the uncontroverted evidence is that the administrative director resisted all legitimate attempts by respondent at supervision and control.”

She also argues that the maladministration article is vague.

 “Assuming, strictly arguendo, that Article XIV spews forth a bombardment of facts that, taken together, might sufficiently capture the essential elements of ‘maladministration,'” the motion states. “Respondent is yet entitled to know the specific acts or omissions the Board of Managers intends to prove, and the corresponding portions of the charge to which those acts or omissions are intended to relate.”

As for the motions regarding the pay for senior status judges, Workman says it isn’t clear what law she is accused of violating.

“The point is that the statute is confusingly drafted, with terms that are inherently or latently ambiguous and in tension with each other,” one motion states. “Because no adversarial proceeding has yet arisen in which the Supreme Court of Appeals could definitively construe 51-9-10, no one can say for sure what the statute means.”

She also argues that she intentionally didn’t violate any laws.

“No evidence has been produced that Respondent intended any violation,” another motion states.

Workman is represented in the impeachment Senate trial by Ben Bailey, Steve Ruby, Raymond Franks and Holly Wilson from the Bailey & Glasser law firm in Charleston.

Her Sept. 21 filings with the state Senate and its court of impeachment came just hours after she filed a petition with the state Supreme Court saying the impeachment trials must be halted because the House of Delegates overstepped its bounds and tried to undermine the separation of powers of state government. 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 handling the petition filed with the state Supreme Court.

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 to appoint an acting Chief Justice to hear the case. He appointed Judge James A. Matish to that position, and Matish appointed Judges Ronald E. Wilson, Louis "Duke" Bloom, Rudolph Murensky and Jacob Reger to hear the case.

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. Those appointments were challenged at the state Supreme Court as well, but the Court ruled Sept. 24 they can be seated.

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.

In the matter filed with the state Supreme Court, Workman is being represented by Williams, Melissa Foster Bird, Thomas Hancock and Christopher Smith of the Huntington law firm of Nelson Mullins Riley & Scarborough.

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

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