The Interdependent Third Branch
Tracking court organization, administration, structure, and strategy
Last year’s drama surrounding the impeachment of West Virginia’s Supreme Court seems to have come to its final chapter. The United States Supreme Court announced that it will not hear a challenge to the decision that halted the impeachment proceedings on separation-of-powers grounds.
Background on the impeachment of the West Virginia justices here, here, here, here, here, here, here, here, here, and here.
The West Virginia Senate has set trial dates for the state’s four impeached supreme court justices. Beth Walker’s trial will take place on October 1, followed by Margaret Workman on October 15, Robin Davis on October 29, and Allen Loughry on November 12.
Last week, the Senate rejected several motions to reduce the number of trials. One motion would have removed the articles of impeachment against Davis on the grounds that she is retired. It was rejected, and sensibly so, given that Davis’s resignation after the impeachment vote was taken was a transparent electoral ploy. A closer call, in my estimation, was a resolution to simply censure Justices Workman and Walker, whose charges are considerably less worrisome than those of Loughry. The senate, however, rejected that resolution as out of order.
From the National Constitution Center, an update on events occurring over the last couple of weeks:
In the late-night hours of August 13, West Virginia’s Republican-controlled House of Delegates passed articles of impeachment against all four sitting Justices, accusing them of maladministration, corruption, incompetence, neglect of duty, and certain high crimes. (Justice Menis Ketchum had previously resigned after being charged with wire fraud for personal use of a state vehicle and fuel card. He recently pled guilty to those charges.)
On Saturday, August 25, Gov. Jim Justice named Republicans Tim Armstead and Rep. Evan Jenkins to fill the seats vacated by Justice Robin Davis and Ketchum, both elected as Democrats. Davis had retired after the impeachment charges were approved.
Impeachment trials are set to begin in the state senate on September 11. A two-thirds senate majority is needed to convict. If any justices are convicted, Gov. Justice will appoint replacements that will serve until 2020. Armstead and Jenkins will serve until November 2018, when they will have to run in a special election to attempt to keep their seats.
This is going to get very messy, very soon.
The West Virginia Metro News has more on the aftermath of former Justice Robin Davis’s quick (and cynically partisan) resignation immediately after the state House of Delegates impeached her this week.
The West Virginia House Judiciary Committee has approved fourteen articles of impeachment against the four remaining members of the state supreme court. Eight articles are directed toward Allen Loughry, four each against Margaret Workman and Robin Davis, and two against Beth Walker. In some cases, more than one justice is the subject of a charge.
Menis Ketchum, who resigned from the court at the end of July, was not included in the articles of impeachment.
Loughry’s alleged fraud on taxpayers is now well-documented and is the subject of a federal proceeding. The articles against the other justices suggest a widespread culture of lavish spending and corruption. As the Charleston Gazette-Mail reports:
Each justice is charged with “unnecessary and lavish” spending of state taxpayer dollars to renovate their offices in the East Wing of the Capitol. All four of them also are charged with failing to develop and maintain court policies regarding the use of state resources, including cars, computers and funds in general.
Loughry faces additional charges related to his alleged use of state vehicles for personal travel, having state furniture and computers in his home, having personal photos, documents, photos and artwork framed on the state’s dime, and handing down an administrative order authorizing payments of senior status judges in excess of what is allowable in state law.
Davis and Workman are charged with signing documents authorizing that senior status judges be paid in excess of what’s allowable in state law.
One article against Walker, charging her with using state money to pay an outside attorney to author an opinion in 2017, was rejected by the committee in a 14-9 vote. The outside attorney in that matter was Barbara Allen, currently the interim Supreme Court administrator, who wasn’t employed with the court at the time she wrote the opinion, said Marsha Kauffman, attorney for the Judiciary Committee.
The committee also rejected an article against Workman that charged her with facilitating the hiring of a contracted employee to do IT work for the court as a political favor.
The articles of impeachment will now advance to the full House.
One may ask what would happen if all four remaining justices are impeached and removed. Candidates are already lining up for a special election this November for Ketchum’s spot. But unless a justice is impeached before August 14, no more special elections can be called for this year. Instead, as this article suggests, it appears that Governor Jim Justice would appoint replacement justices for all vacancies on the court, and those justices would serve until the 2020 election.
After the shameful, politically motivated recall of California judge Aaron Persky this summer, I hoped that it would be a while before we saw another attack on a good judge who happened to give a single light sentence. Consider those hopes dashed.
Some members of the Massachusetts General Assembly are calling for the impeachment (technically the implementation of a “bill of address”) of state superior court judge Timothy Feeley, who gave probation to a convicted heroin dealer earlier this year.
The rancor over Feeley’s rulings have focused on the case of Manuel Soto-Vittini, 33, of Peabody, who in May pleaded guilty to possession with intent to distribute heroin and cocaine. He was caught with 15 grams of heroin — 3 grams below the threshold for a more serious trafficking charge.
Feeley gave him two years of probation, instead of the one to three years in prison that prosecutors sought, calling it “a money crime.”
Feeley also weighed Soto-Vittini’s immigration status, saying in court that if the Dominican national had been a U.S. citizen, he would likely have sent him to state prison.
Lawmakers have already called for an internal judicial investigation of the matter, which is ongoing. In that sense, the call for impeachment is likely just political posturing. But it is still corrosive and pointless. One can be dismayed by the light sentence and still conclude that removal from office is entirely inappropriate.
On Tuesday, federal prosecutors announced that West Virginia Supreme Court Justice Menis Ketchum had pled guilty to one count of wire fraud, stemming from his personal use of a state-issued automobile and credit card. Ketchum is the second state supreme court justice to face federal charges; former Chief Justice Allen Loughry was previously charged with 23 counts of fraud and related misconduct.
The guilty plea comes as the state legislature continues to investigate the possibility of impeachment for one or more members of the state’s highest court.
The West Virginia House Judiciary Committee continued its impeachment inquiry into the state supreme court this week, with particular focus on indicted former chief justice Allen Loughry. Thursday morning, the supreme court’s former court administrator is expected to testify.
Meanwhile, the state’s judicial ethics commission cleared three other justices in an investigation stemming from the court’s practice of ordering in working lunches on the taxpayer dime. There is no question that the practice was pervasive, but the state Judicial Investigation Commission (JIC) also concluded that it was “longstanding” and preceded the terms of the current justices. The JIC also concluded that the working lunches allowed the court to run more efficiently. The justices were admonished, however, that such practices should be reduced to writing to the policy is clear.
Last Thursday, the West Virginia House Judiciary Committee began hearings that may lead to the impeachment of one or more of the state’s supreme court justices. The hearings were precipitated by accusations of rampant overspending and other ethical violations by Chief Justice Allen Loughry, who was indicted on 22 counts of fraud and other malfeasance by a federal grand jury.
Thursday’s hearings focused on a now-infamous $32,000 couch, part of an alleged $360,000 in taxpayer money that Loughry spent on his office between 2013 and his suspension last year. The supreme court’s deputy director of security testified that the couch was moved from the courthouse to Loughry’s home, and that after Loughry was suspended from his duties he contacted the security office to help him move the couch (and a historic Cass Gilbert desk) again–this time to a warehouse, in order to avoid ongoing media scrutiny. Other court officials testified about Loughry’s improper use of state vehicles and the extraordinary remodeling of Loughry’s chambers.
Legislators also questioned the court’s public information officer, who had previously told a reporter that “the Court has a longstanding practice of providing Justices an opportunity to establish a home office,” including the use of court furniture. The PIO explained that she was told about the alleged practice by Loughry, and deferred to him in light of his position and experience. In fact, no such policy exists.
Members of the House Judiciary Committee planned their own tour of the supreme court offices last Friday, but cancelled after the Court refused to allow media and other observers to join the legislators.
There will be more to come in this ugly situation. Stay tuned.
The West Virginia House of Representatives unanimously approved a bill that would allow the House Committee on the Judiciary to investigate allegations of malpractice and criminal activity by members of the state Supreme Court of Appeals. The investigation could lead to the impeachment of one or more of the Supreme Court justices.
More on the allegations against the Justices, and especially former Chief Justice Allen Loughry (who was recently indicted by a federal grand jury on 22 counts of fraud and other malfeasance) here and here.
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