House replies to Workman's USSC impeachment brief, again says court should grant writ

By Chris Dickerson | Jun 6, 2019

WASHINGTON – The House of Delegates has responded to a brief about whether the U.S. Supreme Court should hear a case regarding last year’s state Supreme Court impeachment proceedings.

In the reply brief filed June 6, the House says the U.S. Supreme Court should consider its writ of certiorari based on the Guarantee Clause argument, saying a recent brief filed in the case by attorneys for state Supreme Court Justice Margaret Workman is “premised upon an inaccurate representation” of the state Supreme Court’s ruling.

In a brief filed May 24, Workman’s attorney Marc Williams wrote that there are four primary reason the U.S. Supreme Court should deny the writs filed by the state Senate and House of Delegates.

“This court’s precedent is clear,” Williams wrote. “The Guarantee Clause does not require states to apportion power amongst their governmental branches in any particular way.”


Carter  

The House, which is being represented by attorney Mark Carter of Dinsmore & Shohl’s Charleston office, says there are two ultimate questions for the U.S. Supreme Court to answer.

“Should this court permit a state court of last resort to eviscerate the separation of powers doctrine and afford the judiciary the power to review the Legislature’s impeachment proceeding despite the guarantee of Article IV to every state to a republican form of government?” Carter writes in his reply. “Second, should this court artificially limit the application of the law … to federal circuits and prohibit parties denied the right to intervene in a state court standing to petition this court?

“Both questions should be answered by this court. The writ should be granted.”

Carter says the state Supreme Court did consider justiciability when it decided the impeachment proceedings were subject to its review.

“Simultaneously, the Supreme Court of Appeals considered the justiciability of the state Senate’s guarantee clause argument and concluded it was not justiciable, citing the Senate’s failure to present precedent from any court concluding that the Guarantee Clause operated to prohibit the judiciary’s review of a state impeachment proceeding,” he writes.

Carter says the state Supreme Court found a political action (such as the impeachment proceedings) were reviewable and justiciable. He says it also found the state Senate’s argument that usurping its authority would violate the Guarantee Clause was not justiciable.

“The Supreme Court of Appeals is wrong on both accounts,” Carter writes, adding that the House isn’t seeking a review of the state Supreme Court’s “plainly incorrect decision” about the separation of powers doctrine.

“Rather, petitioner seeks review of the impact of that decision which has eviscerated the republican form of government previously enjoyed by the state,” Carter writes. “That form of government was defined by three co-equal branches of government; whereas, now – as a result of the decision – the judiciary has empowered itself with primacy over the legislative branch.”

In his May 24 brief, Williams cited a 1962 U.S. Supreme Court ruling titled Baker v. Carr.

“Reliance on the Guarantee Clause is ‘futile’ when the case ‘involves the allocation of political power within a state,” the brief states. “This court has already decided that the Guarantee Clause does not create a federal template of government with which the states must comply, and neither petitioner presents a compelling reason to revisit that principle.”

The U.S. Supreme Court hasn’t decided if it will hear the state Legislature’s appeal regarding the impeachment of state Supreme Court justices. But last month, the court asked Williams, who is representing Workman, to file a response to the petitions filed by the House of Delegates and state Senate. Workman originally had waived the right to respond to the petitions.

Williams, the managing partner of Nelson Mullins’ Huntington office, said he thinks the request signifies the importance of the issue.

“It does not mean they’re going to take the case,” Williams previously told The West Virginia Record. “But, I think the issues they have raised are pretty unique. They seem to think this is an important issue. For one, the issues were not raised in the Supreme Court of Appeals, which creates some issues about waiver.

“But, they are arguing to make a federal Constitution question applicable, and it probably is the least litigated section of the document – the guarantee clause. It’s such a unique argument, I think they wanted to see our perspective on it.”

The House of Delegates asked the Supreme Court to hear its challenge about whether the state Supreme Court, which was made up of circuit court judges temporarily hearing the matter, overstepped its bounds regarding separation of powers. The state Senate filed a similar challenge in March.

The House contends it has sole authority to impeach officials, and the Senate says it has the authority to conduct the ensuing impeachment trials. Neither legislative body questioned whether Workman was guilty of the offenses for which she was impeached.

The U.S. Supreme Court was going to consider those appeals during a conference earlier in May. But it delayed that to give Workman time to respond.

Both the House and Senate petitions to the Supreme Court question the process by which five state court judges acting as the state Supreme Court stopped the impeachment of the then-current state Supreme Court justices. They say the decision goes against the separation of powers doctrine provided by the U.S. Constitution. The Senate petition doesn’t address the actual impeachment of any of the justices, rather it focuses on how the state Supreme Court violated the Legislature’s impeachment powers.

“Far from merely policing the boundaries of the impeachment process, the court below decided for itself the merits of some of the Articles of Impeachment, then declared that the Legislature can never use conduct regulated by West Virginia’s Code of Judicial Conduct as grounds for impeachment,” the Senate petition states. “This decision renders impeachment’s promise of accountability hollow by setting the judiciary up as its own judge, and impermissibly upsets the balance of powers between what should and must be co-equal branches.”

Williams disagrees.

“First, the decision below rested on independent and adequate state law ground,” Williams wrote in the May 24 brief. “Although the petitioners focus on the Supreme Court of Appeals’ discussion of the Guarantee Clause in a footnote, this court should not exert jurisdiction where the Supreme Court of Appeals dealt with wholly state law issues and summarily rejected the Senate’s Guarantee Clause argument because the Senate failed to cite ‘to an opinion by any court in the country that supports the proposition that issuance of a writ against another branch of government violates the Guarantee Clause.’”

Second, Williams said the state Supreme Court didn’t rule on the justiciability of the state Senate’s Guarantee Clause claims. Even if it had, he writes, the circuit split identified by the Senate does not exist.

Third, Williams said questions about whether the Guarantee Clause bars judicial review of the impeachment proceedings do not merit review.

“Precedent from this court and courts around the country uniformly recognizes that the Guarantee Clause does not require states to apportion powers in any particular way,” Williams wrote.

Finally, Williams said the House of Delegates lacks standing to bring its petition, saying it failed to intervene before and the state Supreme Court denied its late motion to intervene.

The legislative bodies want the U.S. Supreme Court to affirm the Legislature’s role of impeachment by tossing out the state Supreme Court’s October ruling.

“(The U.S. Supreme Court) should intervene to resolve the narrow, but critically important, question whether the acting justices’ decision undermines the republican form of government that the federal Constitution guarantees to every State,” the Senate petition states.

The House believes this decision denies the state a republican form of government as guaranteed by the United States Constitution.

"The decision of the Supreme Court of Appeals of West Virginia violates the Guarantee Clause of the United States Constitution as it elevates itself to a supreme branch of government with authority to review the impeachment proceedings of the State Senate and House of Delegates and restrict the rights of both chambers thereby eviscerating the checks and balances of state government and the separation of powers doctrine," the House petition states.

Previously, House Speaker Roger Hanshaw (R-Clay) said the purpose of the filing is not to seek permission to restart impeachment proceedings, but instead to correct what House leaders believe are serious legal errors contained in the decision handed down by the temporary judges assigned to the state Supreme Court.

“We have said since October that a strict reading of that opinion removes virtually all of the Constitutional checks and balances we have on the judicial branch of government,” Hanshaw said in a statement. "Our action today is not an effort to resume the impeachment proceedings against any individual, but rather an effort to restore the proper legal and Constitutional authority granted to the Legislature with regard to impeachment proceedings."

Hanshaw said should a future Legislature need to begin impeachment proceedings against an elected official who has betrayed the public trust, they need to make sure it is able to act and not have its hands tied by this defective decision.

The House impeached the entire state Supreme Court last summer for various issues such as excessive spending on office renovations, personal use of state vehicles and pay issues for some senior status judges.

During the impeachment trial process before the state Senate, the acting state Supreme Court issued a ruling on a petition filed by then-Chief Justice Workman that ended the impeachment trials after the one for current Chief Justice Beth Walker.

The acting state Supreme Court ruling said lawmakers had overstepped their authority, saying the impeachment was based on parts of the state Constitution that only the judicial branch can handle.

“To get the attention of the Supreme Court, you have to identify how lower courts have come to a decision,” Williams previously told The Record. “And sometimes it’s what they call a circuit split, meaning one lower court says A, and another lower court says B. And someone asks the Supreme Court ro resolve that.

“They (the House and Senate) are arguing that a circuit split exists, but the cases don’t support that.”

Williams said he still thinks it’s unlikely the Supreme Court will take the case.

“If you’re an objective observer, this would not be a case as one likely to be taken,” Williams said, adding that the Supreme Court only reviews about 3 percent of the petitions filed. “That’s not to say this case isn’t important. Every case that goes up there has importance. It’s important to Justice Workman and to the Legislature. But the Court takes very few cases, and they take very few for a reason.”

State Senate President Mitch Carmichael issued a statement about the case.

“We are very encouraged that there appears to be some interest by the (U.S.) Supreme Court in this case,” he said.

In addition to Williams, Workman is represented by fellow Nelson Mullins attorneys Melissa Foster Bird and Thomas M. Hancock.

U.S. Supreme Court case numbers 18-893 and 18-1189

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Dinsmore & Shohl LLP - Charleston Nelson Mullins Riley & Scarborough U.S. Supreme Court West Virginia House of Delegates West Virginia State Senate West Virginia Supreme Court of Appeals

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