State Senate wants Supreme Court to rehear Workman impeachment case

By Chris Dickerson | Nov 9, 2018

CHARLESTON – The state Senate has asked the state Supreme Court to reconsider its decision to block impeachment trials against four current and former state Supreme Court justices.

Attorneys for the Senate filed the petition Nov. 5. The petition says a rehearing is needed because the original ruling filed last month by five judges acting as the Supreme Court was “not well-founded due to misapprehension of the issues, the law or the facts.”

The state Senate contends that the original opinion has misapprehended language in the state Constitution and, by doing so, incorrectly found jurisdiction where none actually exists. They say the opinion also misapprehended the Separation of Powers Doctrine and, in doing so, infringed upon the exclusive jurisdiction of the state Senate.

The Senate also says the opinion’s “misapprehension of the distinction between promulgated rules and administrative orders sets a dangerous precedent that threatens our constitutional foundation of checks and balances.”

It also claims the opinion violated the Senate’s right to due process under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution as well as the Guarantee Clause of the U.S. Constitution “by undermining the foundational principles of our republican form of government.”

The acting Supreme Court ruled Oct. 11 that the state Legislature violated the separation of powers and that the House of Delegates violated its own procedures when it impeached four Supreme Court justices. That ruling stopped the impeachment trials for Chief Justice Margaret Workman, retired Justice Robin Jean Davis and suspended and now convicted Justice Allen Loughry. Justice Beth Walker went through her impeachment trial and was acquitted by the Senate.

The Senate says the opinion ignores the fact that the state Constitution give sole power of impeachment to the Legislature.

The petition also notes that the opinion took issue with how the House of Delegates handled its part of the impeachment process, not the Senate.

“The omission of the House of Delegates from these proceedings, in light of the issuance of a writ of prohibition, raises a Separation of Powers issue that warrants rehearing,” the petition states. “By adjudicating the validity of procedures used by the House of Delegates, this court has clearly affected the House of Delegates’ inherent authority ‘to keep its own house in order’ pursuant to the Separation of Powers Doctrine.’”

The lawyers who filed the petition for the state Senate are Mark Adkins, Floyd Boone, Lara Brandfass and Richie Heath from Bowles Rice.

Meanwhile, a new impeachment article against Loughry could be in front of legislators by next week. And it might include Workman as well.

The new article would focus on Loughry’s federal conviction on 11 counts of wire fraud, mail fraud, witness tampering and lying to federal agents.

On the Nov. 8 edition of MetroNews’ “Talkline” radio program, House Speaker Roger Hanshaw said he thinks it’s likely Gov. Jim Justice will call lawmakers into special session next week when they’re in Charleston for interim meetings.

“That’s up to the governor,” Hanshaw told host Hoppy Kercheval, adding that the impeachment of Loughry based on the federal conviction could be fairly quick.

State Senate President Mitch Carmichael said he and Hanshaw sent a letter to the governor’s office requesting the call for a special session. He said they asked Justice to call the special session for Tuesday, Nov. 13 during the interim meetings.

“We sent a letter down asking for him (Justice) to call the special session for Tuesday for Loughry and (Chief Justice Margaret) Workman,” Carmichael told The West Virginia Record. “Now, the governor’s office may or may not want to do both of them. You’ll have to ask them that, I guess.”

Carmichael said those two were included in the letter based on the notion that the House of Delegates had messed up procedurally before, leading to Workman filing a motion to have her first impeachment trial stopped.

“It’s all in the context of the notion that the House did this wrong,” Carmichael said. “Any call should be issued should include the same justices that were on the same call. But, Beth Walker already has been tried. She went through the process. And Robin Davis has resigned, so I don’t see how she could be included in it now. Unless it’s based on the fact that she’s now a senior status judge.”

Loughry was convicted Oct. 12 on 11 federal counts of mail fraud, wire fraud, witness tampering and lying to federal agents. On Nov. 6, his attorney John Carr filed a second motion seeking acquittal or a new trial on nine of those counts, including seven for wire fraud, one for mail fraud and one for witness tampering.

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

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