CHARLESTON – The impeachment trial of Chief Justice Margaret Workman didn’t begin as scheduled following a state Supreme Court ruling last week putting a stop to it.
The state Senate, which acts as the court of impeachment, met Oct. 15. But president Judge Paul Farrell didn’t show up, so Senate President Mitch Carmichael put the court in recess.
Afterward, senators commented on the Supreme Court ruling and what to do next.
“I think we are in one of those moments right now where we will be judged by what we do, how we react and what we say to the circumstances we find ourselves in,” Senate Judiciary Chairman Charles Trump (R-Morgan) said. “
“I will give the Supreme Court credit for, what I believe, is a bonafide effort on behalf of the Court. For those of you who haven’t read the opinion, I strongly recommend that you do so.
“I will give the Supreme Court, those assembled, to make a thorough survey of the law and, in the opinion, crafted give rationale or reasoning for its decision. … Since almost the very founding of this republic, in the case of Marbury vs. Madison, we have adhered in this country to the notion that the Supreme Court is the final arbiter of what is or what is not constitutional.”
Trump also said he believes Workman’s writ should have been aimed at the House of Delegates instead of the state Senate to address the procedural issues seen in the House impeachment proceedings.
“On that particular point, it seems to me that there is a problem,” he said. “Our role in impeachment is essentially as a jury.
“So, to the extent that Chief Justice Workman’s petition called upon the state Supreme Court to review what occurred in the West Virginia House of Delegates, the West Virginia Senate is not the right party to answer.”
Trump suggested the next move.
“My opinion is that we should ask the state Supreme Court to reconsider at least part of its decision, the part that relates to the adjudication of the propriety of the procedures in the House of Delegates,” he said. “We were never the right party to make the defense. … They (the House) are the right entity to do that.”
On Oct. 11, the court issued a 5-0 ruling saying the three Articles of Impeachment that name Workman violate the separation of powers doctrine. It ruled the state Senate also does not have jurisdiction over the claims made in those three articles.
On Oct. 12, retired Justice Robin Jean Davis asked the court to expand that opinion to her impending impeachment trial as well.
"In addition, we have determined that the failure to set out findings of fact, and to pass a resolution adopting the Articles of Impeachment violated due process principles," the Oct. 11 opinion states. "Consequently, the respondents (the state Senate) are prohibited from proceeding against the petitioner (Workman) for the conduct alleged in Article IV and Article VI, and in Article XIV as drafted."
Those articles focus on the payment of senior-status judges and claims Workman and the other justices failed to implement administrative policies and procedures.
The writ essentially says the legislative branch does not have the power to prosecute members of the judicial branch and that a state law setting a cap on payments to senior-status judges is illegal. It says the state Judicial Investigation Commission handles judicial complaints.
It also says lawmakers didn’t properly follow the due process clause because they failed to formally adopt an impeachment resolution. It says because the House didn’t follow proper procedure, all of the articles of impeachment are invalid.
Five circuit judges presided as the Supreme Court after Workman recused herself. Justice Beth Walker and temporary Justice Paul Farrell also stepped aside. Acting Chief Justice James Matish delivered the opinion of the court, and acting Justices Duke Bloom and Jacob Reger also issued a separate opinion, concurring in part and dissenting in part.
While the writ issued by the court is about Workman’s impeachment trial, it could be precedent for the pending impeachment trials of suspended Justice Allen Loughry and former Justice Robin Jean Davis. Justice Beth Walker already has been acquitted in her impeachment trial.
Jacque Bland, a spokeswoman for the state Senate, said the Senate had received the court order and plans to appeal to the U.S. Supreme Court. She also said the Court of Impeachment still will convene at 9 a.m. Monday pursuant to the authority granted the Senate in the state Constitution.
Farrell, who is presiding over the impeachment trials in the state Senate as acting Chief Justice, also issued a statement saying he no longer can president over the trials because of the writ.
“This case is not about whether or not a justice of the Supreme Court of Appeals of West Virginia can or should be impeached; but rather it is about the fact that to do so, it must be done correctly and constitutionally with due process,” Thursday’s writ stated.
Matish also wrote that procedural safeguards built into the impeachment process have not been followed.
“In this case, there has been a rush to judgment to get to a certain point without following all of the necessary rules,” he wrote. “We are a nation of laws and not of men, and the rule of law must be followed. By the same token, the separation of powers doctrine works six ways. The Courts may not be involved in legislative or executive acts. The Executive may not interfere with judicial or legislative acts.
“So the Legislature should not be dealing with the Code of Judicial Conduct, which authority is limited to the Supreme Court of Appeals.
“The greatest fear we should have in this country today is ourselves. If we do not stop the infighting, work together, and follow the rules; if we do not use social media for good rather than use it to destroy; then in the process, we will destroy ourselves.”
Marc Williams, who is representing Workman in the matter, called the ruling “an overwhelming victory” for Workman.
“It’s very detailed, and it’s clear the court spent a significant amount of time on the issue,” he said. “The fact is that the impeachment process was flawed from the beginning. And now, rules have to be followed, especially if you’re dealing with something as important as impeachment.
“The court, as constituted, has spoken. It’s a fundamental principle of our republic that orders are followed when they’re issued by courts. If orders aren’t followed, then that will create a constitutional crisis greater than anything they could have projected.”
Williams said he is concerned that the Senate still plans to convene for Workman’s impeachment trial Monday.
“I would hope that cooler heads would prevail,” Williams said. “They have a lot of smart lawyers in that body and in the House as well.
“When a court issues an order, you comply with it. You don’t have to agree with it, but you comply. We can’t just decide which ones we follow.
Still, Williams said he thinks the chance of the U.S. Supreme Court hearing the state Senate’s appeal is small.
“This was a flawed process from the beginning,” he said. “The House had adopted rules intended to protect the due process rights of the defendants. Then, for whatever reasons, they didn’t follow those rules. The opinion says their failure to follow their own rules is a failure of due process.”
In their separate opinion, Bloom and Reger say the Legislature has “absolute discretion” to seek to re-impeach Workman against based on the maladministration allegations in Article XIV. They also said the court should have heard oral arguments in the case despite the fact the Senate waived the right to them.
“Many of the issues presented are related to transparency,” Bloom and Reger wrote. “Not having oral argument eliminates the opportunity for a more thoughtful discussion with the parties and perhaps greater illumination of the issues for the court.
“Also in a case both constitutionally and politically charged, transparency better serves the parties, the court and the public interest.”
In her writ, filed Sept. 21, 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. The respondents listed were 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 argued 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 said 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 said 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 maintained 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 argued 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 argued.
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