West Virginia Record

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Davis seeks federal injunction to stop her impeachment trial in state Senate


By Chris Dickerson | Oct 3, 2018

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CHARLESTON – Retired state Supreme Court Justice Robin Jean Davis is seeking a federal injunction to stop her scheduled impeachment trial in the state Senate.

Davis filed the injunction Oct. 2, just hours after Justice Beth Walker was acquitted in her impeachment trial. Davis’s trial is scheduled to begin Oct. 29. Chief Justice Margaret Workman’s impeachment trial is scheduled to begin Oct. 15.

Davis, Walker, Workman and suspended Justice Allen Loughry were impeached Aug. 13 by the House of Delegates. Loughry currently is on trial in federal court. Davis resigned effective that same day.

Davis, who resigned in August the same day impeachment proceedings began in the House of Delegates, filed a federal lawsuit Sept. 26, naming as defendants Gov. Jim Justice, the delegates who voted for her impeachment, the state Senators who voted to move ahead with the impeachment despite her resignation and the clerks of the House of Delegates and state Senate.

In that 40-page complaint, Davis claims the House had no legal basis for impeaching her or any of the other Justices.

"What is more, the facts cited purportedly to support impeachment do not remotely rise to the level of impeachable conduct," the complaint states. "But the House was not interested in investigating whether the facts warranted impeachment. Instead, it used these charges as a pretext to remove all four Justices on West Virginia’s highest court so that the Governor could replace the popularly elected Justices with Republican men and create a 'conservative court' for years to come. ...

"The defendants must be enjoined from taking further action that degrades Justice Davis’s rights under the Constitutions of both the state of West Virginia and the United States. ...

“In sum, the Articles of Impeachment returned against Justice Davis reflect no factually or legally sufficient grounds for impeachment."

In her injunction, Davis says she is likely to succeed in federal court, saying the impeachment proceedings “are factually baseless and legally invalid” and that the “House plowed ahead despite” a Judicial Investigation Commission report that said Davis did nothing improper.

Davis says she will suffer irreparable harm without the injunction. She also notes that the Legislature isn’t trying to impeach fellow former retired Justice Menis Ketchum.

“If a judgment is entered against Davis in the Senate before she obtains judicial relief, those harms will multiply — in addition to the harm from whatever unlawful penalty the Senate may impose,” the injunction states. “No money damages or other retrospective relief can possibly remedy this injury to Justice Davis’s constitutional rights.”

The injunction request further states that temporarily prohibiting the Senate trial will cause no “lasting harm,” adding there is no threat to the people of West Virginia because Davis already retired.

Ketchum retired a few weeks before Davis before pleading guilty to a federal charge of wire fraud related to his use of a state vehicle and gas purchasing card for a golf outing in Virginia.

Also on Tuesday, a jury of 10 women and two men were seated in the federal criminal trial against Justice Allen Loughry who is accused of using his public office for personal gain. His impeachment trial is set for Nov. 12.

Justice Margaret Workman will be the next to go on trial in the Senate. Hers is set for Oct. 15.

When she resigned, Davis was the most senior member of the court, having served nearly 22 years. In her remarks during an Aug. 14 announcement, she said partisan politics is at the heart of her decision to retire.

“I deliver this statement today in dismay, disbelief, and in sadness,” she said. “I feel profound grief for the state of West Virginia given the current state of affairs. What we are witnessing is a disaster for the rule of law, the foundation of our state, and indeed, our very society.

“For when a legislative body attempts to dismantle a separate branch of government, the immediate effects, as well as the precedent it sets for the future, can only be termed disastrous.”

In voting to impeach the entire Supreme Court, Davis said Republicans on the House Judiciary Committee acted irrationally and without due process of law.

“The majority party has established a preconception which they bring forth, without regard to the evidence, or the process by which that evidence should be considered,” Davis said. “The majority members have ignored the will of the people who elected the justices of this court. They have erased the lines of separation between the branches of government.

“In fact, the majority party in the Legislature is positioning to impose their own party preferences. The will of the people is being denied! I just cannot allow the finalizing of their plot to come to fruition.”

In her federal complaint, Davis contends the move to impeach all four remaining members of the court shows a conspiracy among the governor and lawmakers. Justice Menis Ketchum resigned in July before impeachment proceedings began.

“The Articles of Impeachment do not allege any conspiracy among all of the Justices to engage in any impeachable offense — far from it,” Davis's complaint states. “The decision of the House of Delegates to wipe out the entire remaining Supreme Court of Appeals makes clear that the impeachment process was not an effort to uncover misfeasance, but instead a power grab designed to remove Justices with whom the Delegates disagreed and to remake the court in the Delegates’ and the governor’s desired image.”

Davis is being represented by James Cole, Tacy Flint and John K. Adams of Sidley Austin in Washington and Chicago as well as Tim DiPiero and Lonnie Simmons of DiTrapano Barrett DiPiero McGinley & Simmons in Charleston.

U.S. District Court for the Southern District of West Virginia case number 2:18-cv-01316

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Organizations in this Story

Sidley Austin LLPWest Virginia Supreme Court of AppealsDiPiero Simmons McGinley & Bastress PLLCU.S. District Court for the Southern District of West Virginia Charleston DivisionWest Virginia House of DelegatesWest Virginia State Senate

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