Digging Deeper by Dan Heyman
UPDATE – Monday the Judicial Investigative Committee dismissed complaints against the remaining justices. In a written statement, the JIC said the charges against Beth Walker, Robin Davis and Margaret Workman were either unsubstantiated or were not significant violations.
Charleston, WV – As the House Judiciary Committee details of charges against state supreme court justices, the chair says it now looks unlikely they will finish their work on the timetable he wanted to meet.
Delegate John Shott, a Bluefield attorney, says his “hope was that we could finish up in a week. I'm not sure I can say that with any certainty at this point.”
He says they are having trouble setting the schedule in part, “because we've had some challenges in getting witnesses... some are evading our process server, but some of them have retained counsel and their counsel is not available to be here with them until certain dates.”
The committee’s work may reach a point of high drama this Thursday, when former court administrator Steve Canterbury is expected to testify all day. Canterbury probably has important tales to tell, not just about the court’s budget, but also about office politics.
But to get there, Shott planned to have the committee go through a bunch of evidence that would set the stage. And that went very, very slowly last week.
The committee was derailed Friday by a debate over whether reporters could join a planned tour of the court chambers. Eventually the members voted that the press be allowed to go along, and the capitol media voiced satisfaction that lawmakers stood up for reporters’ access. In fact impeachment probably wouldn’t be happening without big stories by Kennie Bass at WCHS and Phil Kabler at the Charleston Gazette. But that debate took time when work had already gone slowly for several days.
Shott had scheduled four witnesses for last Thursday’s hearing, but the entire morning was taken up with painstaking testimony from only one. Jess Gundy, court deputy director of security, answered a long and detailed series of questions from committee members about court personalities and procedures.
Gundy and the exhibits entered at the hearing confirmed a view of Justice Allen Loughry abusing the trappings of his office to an almost comical degree. The reputation of any judge accused of lying to the FBI is going to be under question, but court employees didn’t help.
For instance, Loughry stopped talking to Gundy after the justice’s habit of taking official cars without saying where he was going became an issue. But that didn’t stop Loughry from getting Gundy to help move the famous office furniture out of his home – furtively waiting until the neighbors and the press are not watching.
Much of Gundy’s testimony fit the picture that state investigations of the court and other testimony to the committee has turned up overall. For instance, Justice Robin Davis and the now retired Justice Menis Ketchum have both been accused of using state cars for personal purposes. But Gundy testified that Loughry was the only one who routinely took state cars without recording where he was going.
And as the auditors put it, “Justice Loughry had a state vehicle for 27 consecutive days through the Christmas and New Year’s holidays from December 10, 2014, to January 5, 2015.” The court was in recess that December.
When the audit came out, Loughry said he disagreed “with the factual and legal assumptions made, the standards and definitions applied, and the conclusions ultimately reached.”
Loughry now faces a total of 23 federal counts, including witness tampering and lying to investigators. He says he is innocent and shows every intention of fighting the charges as long as he can.
The committee’s investigation means the public has gotten to see a picture of the notorious $30,000 couch entered into the public record, but progress is slow.
Schott says most of what the committee is hearing and seeing does seem to concern Justice Loughry, but he says some of that may be due to the nature of the information they have been starting from.
“The bulk of the evidence we received from the Judicial Investigation Commission only addresses Justice Loughry,” says Schott. “Just by nature the fact that the JIC is only targeted thus far Justice Loughry, then most of that information deals solely Justice Loughry.”
At least five big questions remain for the committee:
1. How did the court spend a nearly $30 million surplus in four years?
The court – which handles the budget for the state’s entire court system – went from having a revenue surplus of $29 million in 2012 to having $330,000 in 2016. So far, the public picture of where the money went is at best, incomplete.
The court now has about $19 million in its so-called rainy day fund.
2. How did the court spend $3.7 million in renovations?
One place the surplus seems to have gone is in remodeling the court’s 80-year-old offices. These costs may be justified, but stories about them have enraged many. For example, it looks like Loughry dictated tens of thousands of dollars worth of work to his personal office, then denying that he did, blaming then court administrator Steve Canterbury.
3. What was Canterbury’s role in this, anyway?
Before he was fired in January 2017, just after Loughry became chief justice, Canterbury was one of the most important people in the state’s judicial system. He is also a veteran of state politics, and very skilled bureaucratic in-fighter. Justice Loughry has accused Canterbury of being behind Loughry’s downfall, and the committee may find more than a little truth to that – at least in being the person who blew the whistle.
Loughry says when Canterbury was fired, he threatened to destroy the justices. Others have remembered Canterbury as saying he would go to the press. Last week’s testimony just started to get into the personal atmosphere at the court, but one theme likely to become prominent this week is the degree to which Loughry alienated his co-workers, and if Canterbury decided to get revenge. And if so, how.
When Canterbury testifies there is a good chance the committee will hear that he was the hidden hand behind the press stories that led to couchgate, and everything after. No matter what, Canterbury’s testimony looks likely to be very interesting.
4. Is the legislature going to consider impeachment of any of the other justices?
The impeachment resolution passed by the legislature was written specifically not to target Loughry alone, and in fact says, “some or all of the five members of the Court may be guilty of maladministration, corruption, incompetency, gross immorality, or high crimes or misdemeanors...”
With Justice Ketchum out of the picture, it seems so far there little has come out to justify removal of another justice. But that may change.
5. How long is this going to take?
The deadline for getting a replacement justice on the ballot this fall is Mid-August. Shott had said he would like for the committee to finish its work well before the end of the month, but if that deadline slips, finishing the entire process by the middle of next month starts to look difficult.
But Shott has reasons to go slowly and carefully. As he puts it, “the justices of our state's Supreme Court deserve great respect and they are elected to a very critical position in our state. However, they’re the least accountable to the voter because of their twelve year term.”
He says, “the Constitution gave us as the legislature the power in very limited circumstances to hold them accountable and we take that very seriously.”
His careful pace has won praise by at least one of the Democrats on the committee. Delegate Andrew Byrd, a Charleston attorney, is one of the impeachment managers. That means if the house votes that there is enough basis to consider removing one or more of the justices, and actual impeachment happens in the Senate, Byrd is one of those who will present the case.
“We have to do our due diligence. I mean, this is a determination of whether Articles of Impeachment should go forward. I want to make sure that our T's are crossed our I’s are dotted.”
As he puts it, “I don't want to go there and look like a fool.”
For a more humorous take on the WV Supreme Court Impeachment Story, check out Bil Lepp's "The Wheels On The Bus..."
Dan Heyman has been covering West Virginia politics and policy for more than two decades. He likes dogs but has trouble keeping kudzu from swallowing everything he owns. For more of Dan's WV Strong content, click here.