Digging Deeper: By Dan Heyman
[Editors Note: this article was originally published September 13th, before the senate voted on Oct 2nd not to convict Justice Davis]
Charleston, WV – The actual impeachment of one retired and three current (one suspended) West Virginia Supreme Court justices starts this week. Motions to dismiss the articles against three of the justices have failed, so now – while we are waiting for the hearing of evidence – is a good moment to pause and pull some of the threads out of what is happening.
1. There is a good chance the Governor and GOP-led Legislature will be able to manage this process in a way that nearly ensures two non-judges will take two of the most important judicial positions in the state.
The two long-time politicians have been named to temporary positions on the court, filling in for two justices who have resigned. But the politicians are both running to hold the seats permanently, and they have to be considered instant front-runners.
Mid-term elections have notoriously low turnout, and mid-term, non-partisan judicial elections even more so. As reported by Erin Beck, the capitol reporter for the Beckley Register-Herald, the Supreme Court is enormously important – making decisions and administering lower courts in ways that can have day-to-day impact on ordinary state citizens. But in spite of this, a judge can get onto the state Supreme Court with fewer than 175,000 votes.
When Governor Jim Justice named former Speaker of the House Tim Armstead and soon-to-be former congressman Evan Jenkins to fill in on the court, he touted their political credentials and their “conservative” values. What he didn’t talk about is their experience as judges, because neither man has any.
In fact it is an open question as to whether Jenkins has even practiced law recently enough to qualify for the position.
But both men have been appearing on ballots and in headlines for years, and when they appear on this fall’s court ballot they will be incumbents and they will have the word “Justice” before their names. With a very short campaign (a little more than two months) and a crowded field of opponents – mostly made up of lawyers and judges little known by the public – those advantages could well prove overwhelming.
The only candidate likely to have name recognition that could compete is former state Senate Minority Leader and candidate for Governor Jeff Kessler.
2. At What Point Does This Become Penny Wise and Pound Foolish?
Setting aside the case against suspended Justice Allen Loughry (who also faces 25 federal criminal charges), impeachment rests on vague charges of “maladministration” against Justices Margaret Workman, Beth Walker and Robin Davis, and the accusation that Workman and Davis over-paid retired judges to fill in when regular working judges were absent or overloaded.
[Editors Note: the senate voted on October 2nd, roughly a month after this story originally ran, not to convict Justice Davis]
Without those charges, the effort to impeachment Workman and Walker would amount to nothing. The maladministration article turns on the court’s lack of spending rules, although the court has a constitutional right to budget as it sees fit. The article on overpaying judges is more clearly a violation of state law, but pursuing it might not be the best example of a good use of tax money.
During the debate before the full House of Delegates, Judiciary Committee Chair John Shott said that some might argue that is a technical violation of a complex rule, justified by a pressing need for substitute judges. But Shott compared those excuses to the justifications an addicted drug dealer might make for selling opioids in a school yard.
According to a legislative audit report (the fourth looking at the court) which was released last week, judges were overpaid twenty times from 2009 to 2017 – all told averaging just under $34,000 a year. By comparison each day of a special legislative session (including those called for impeachment) costs about $35,000.
The audit suggests the court could have avoided the over-payment by handling the issue better, and it says the justices and knew what they were doing was wrong when they did it. But at the same time, an article in the Charleston Gazette says impeachment is putting in doubt a case where the state has millions at risk. At some point, are we becoming penny wise and pound foolish?
3. Will Former Justice Robin Davis Be Impeached?
Former Supreme Court Justice Menis Ketchum avoided impeachment by resigning before the legislature opened the process in the House Judiciary Committee. In fact, judiciary chair Shott specifically said they would not be taking up the charges against Ketchum because the main punishment available through impeachment is removal from office, and Ketchum had already resigned.
Davis resigned – with an angry press conference – only after the house had voted to approve articles of impeachment against her. Shott assumed that the articles against Davis would be dismissed, for the same reason they were never taken up against Ketchum. In a statement issued just after her resignation, he said “We thank Justice Davis for her decades of service on the bench, and for her retirement, which will now spare the state the cost of an impeachment trial against her.”
As of mid-September, the charges against Davis are still standing. That may have to do with legislative inertia – the lawmakers just haven’t had a chance to correct the issue. But the Senate refused one motion to dismiss those impeachment articles standing against Davis.
But Republicans have been gunning for Davis for years, in part because her close ties to the state’s trial lawyers. If they don’t dismiss the articles against Davis, it’s a good sign that they want to do more than turn her out from office, but stomp on her political grave as well.
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.