Digging Deeper By Dan Heyman
Charleston, WV – A major fight looks to be brewing over who from the state Supreme Court will be impeached, as the House Judiciary Committee gets ready to write the formal legislation to do that. Members of the committee say there are sharp partisan divisions over what is supposed to be a non-partisan court just beneath the surface.
Democratic committee members are backing Articles of Impeachment for just Justice Allen Loughry alone. As committee minority chair Barbara Fleischauer put it in a written statement, after more than a month of hearings and three prior investigations “enough is enough."
Although the state Supreme Court is nominally non-partisan, Loughry often voted in a conservative, pro-business manner. Ketchum is generally described as a centrist. U.S. Attorney Mike Stuart – the former chair of the state Republican party – said the charge against Ketchum (while it might seem minor) is part of a “pattern of wrongdoing” that he will continue to pursue.
Which is part of why the Democrats on the house committee put forward articles against Loughry – because they expect Republicans try to use the scandal to clear the bench and let Republican Governor Jim Justice “pack the court” – free from the threat of veto by voters in November.
The seven articles drafted by Democrats say Loughry committed actions and made statements “documented by clear evidence and sworn testimonials, which exhibits a pattern of corruption and deceitfulness never before seen in our state judicial system.”
Meanwhile, Republican Third District Congressman Evan Jenkins has told MetroNews that he is “seriously” considering a run for the seat opened by the resignation of Justice Menis Ketchum, which just took effect.
In a deal with prosecutors, Ketchum has agreed to plead guilty to one count of wire fraud. His plea agreement says that in 2014 he used a state car to travel 400 miles to a golf club in western Virginia, paying for the gas with a state issued credit card.
Democratic committee member Mike Pushkin says lawmakers have yet to find anything impeachable on the remaining judges, Justice Robin Jean Davis, Justice Beth Walker and Chief Justice Margaret L. Workman.
He says “the fact of the matter is, what we've heard that has risen to the level of impeachment has to do with Justice Loughry.”
Perhaps because the evidence against Davis, Walker and Workman looks thin, House Judiciary Chairman John Shott is now publicly talking about “looking for a pattern of behavior” at the court that might be worth having lawmakers address. He told West Virginia Strong last month that “in many cases you're looking at individual incidents (of wrong doing) that might not be enough but a pattern that might be enough.”
Shott later told the State Journal that they were looking for “a pattern of excessive and irresponsible spending.”
Given the date, it now seems all but impossible that voters will get to chose more than one Supreme Court justice this fall. The slow hearing schedule nearing the mid-August deadline for a candidate judge to get ballot access. The resignation of Justice Menis Ketchum – which was announced before, but took effect July 31 – was early enough to allow for his seat to be contested in November. But it no looks to be the only one.
In June Governor Jim Justice told West Virginia Strong that “I think it's always better to have an election. I mean there's no question about that.”
As he put it, “if it need be, I will appoint. But it's always better to hear the people's voice in, my opinion.”
Much of the committee's time has been eaten up by examining the court’s spending – including tens of thousands of dollars for office furnishings. Pushkin says he was stunned to learn that even though the supreme court controls the budget for the entire state court system, it is exempt from purchasing rules that apply to the other branches of state government.
He says part of the reason the courts’ budget and spending was designed that way is because the state’s magistrate courts are actually money makers. “All those fines and court costs payments,” says Pushkin, “the Supreme Court was allowed to keep all that and use it to pay for the rest of the court system.”
The Delegate says he’d “like to see the legislature to be in control of the Supreme Court budget, just like it is in every other state.” And Pushkin says he will introduce legislation to make purchasing rules, like those that require competitive bidding, apply to the courts’ budgets.
But he says there is a serious problem for using what Shott calls “a pattern of excessive and irresponsible spending” as the basis for impeaching the entire court. The spending may have been excessive, but it looks like it was was done by the rules.
And in fact in late July the Judicial Investigation Commission took the unusual step of making public letters to Davis, Walker and Workman. At the request of the judges, the JIC released the documents saying it was closing its investigations of them without taking any disciplinary action.
As Commission Chairman Ronald Wilson put it, they went public, “because Supreme Court Justices are the highest judicial officers in West Virginia. It is important for the public to know that allegations against them have been thoroughly investigated, and they have been cleared of wrongdoing.”
The JIC had a different objective than the lawmakers. Although the legislature may go back farther in time in its probe, the JIC was judging the judges against a much harsher standard – violations of the Code of Judicial Conduct, not all of which would deserve impeachment.
So, for example, the JIC charged Justice Allen Loughry with 32 counts of breaking the code of ethics. Not all of them are serious enough to demand removal from office.
Loughry of course also has other things to worry about. He faces nearly two dozen federal criminal charges, including mail fraud, wire fraud, lying to a federal agent, witness tampering, and obstruction of justice. His trial is set to start in early October.
He has been suspended from the court and is out of jail on bond. But Loughry insists that he is innocent and so far shows ever sign of planning to fight the charges against him.
In a deal with prosecutors, former Justice Ketchum has agreed to plead guilty to one count of wire fraud. His plea agreement says that in 2014 he used a state car to travel 400 miles to a golf club in western Virginia, paying for the gas with a state issued credit card.
Pushkin says so far, no one, not the JIC, the House Judiciary Committee, the press or the public has put forward evidence worth going after Davis, Walker or Workman for.
“What I fear is that the Republican leadership in the legislature is trying to capitalize off of this sad affair to go after the entire Supreme Court, and give Governor Justice a chance to stack the court with justices who would be more favorable to the issues that the Republicans and out of state corporations favor.”
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.