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Effort to remove convicted Justice Loughry from office continues

Although suspended without pay, Allen Loughry remains a justice of the West Virginia Supreme Court of Appeals, despite conviction on several felony charges. (Photo courtesy of W.Va. Supreme Court)

CHARLESTON — Allen Loughry, a justice of the West Virginia Supreme Court of Appeals, is suspended without pay, impeached, and now convicted.

But he is still a justice on the state’s highest court, with a picture hanging outside the chambers, an office costing $363,000 in renovations and furnishings, and a bio on the supreme court’s website. And his impeachment trial has been stopped, likely leading to a new impeachment effort to force Loughry from the bench.

The members selected by the House of Delegates to act as prosecutors for any impeachment trial are considering asking Gov. Jim Justice to call the legislature back in special session to draft new articles of impeachment against Loughry focused in his federal conviction.

Loughry was convicted in U.S. District Court in Charleston on Oct. 12 of 11 felonies, including wire fraud for multiple uses of a state fuel card when using the court’s fleet of Buicks for personal use, lying to federal investigators in March, and witness tampering for trying to get a court employee to remember a conversation regarding office spending that they did not have.

Del. Andrew Byrd, D-Kanawha, is one of the impeachment managers. He said the best thing in order to remove Loughry from office is to call a special session during legislative interim meetings starting Nov. 11-13, draw up articles of impeachment in the House against Loughry, and hold a quick impeachment trial solely focused on Loughry and his federal conviction.

“We can’t proceed forward on the articles that are under appeal,” Byrd said. “My thought process is call us back in, issue one article of impeachment on Loughry … being convicted of a high crime and misdemeanor, send that over to the Senate, give him a 20-day notice, and have a trial before the end of the year.”

Slated to be sentenced Jan. 18, 2019, Loughry could face up to 190 years in federal prison and up to $2.75 million in fines, but this isn’t the only trouble he faces. Two days before Loughry is sentenced, he will be before the state Judicial Hearing Board. Loughry was charged in June by the Judicial Investigation Commission. After his October federal trial, the JIC amended their complaint from 32 to 33 counts to account for his felony convictions.

In the background to all of this are the impeachment charges brought against Loughry by the House of Delegates. The House adopted 11 articles of impeachment against the four sitting supreme court justices at that time — Loughry, Chief Justice Margaret Workman, Justice Beth Walker and Robin Davis (who resigned after being impeached).

All four justices were impeached with failing to adopt travel policies, failure to report taxable fringe benefits, failing to supervise using of state purchasing cards, lack of home policies for use of state property, lack of vehicle use policies, lack of inventory controls, and for not having purchasing procedures and requiring bids.

Additionally, Loughry was impeached on six other articles over the cost of his office renovations office renovations, the overpayment of senior status judges, taking a Cass Gilbert desk and a couch donated to the court to his home, using state vehicles and fuel cards for personal use, using state computers at his home for use by his family, and lying under oath to a legislative committee.

The articles of impeachment, and JIC charges, and the federal convictions all share similar themes. But none of them currently are enough to forcibly remove Loughry from the court on their own.

Loughry was slated to face an impeachment trial in the state Senate on Nov. 12, but all remaining impeachment trials are on hiatus after a supreme court ruling in favor of a petition filed by Workman to halt her own impeachment trial. An appointed panel of temporary justices ruled Oct. 11 that the impeachment of Workman violated the separation of powers, didn’t follow the rules of procedure set by the House, and ruled that laws limiting how the court appointed senior status judges were unconstitutional, rendering those articles of impeachment dead.

“I’m told we can re-do them, but I don’t think — since the decision could be appealed — I don’t know that we can move on those articles now,” Byrd said.

Attorneys for Davis and Loughry filed motions to join the Workman petition, but in an order released Oct. 25, Acting Chief Justice James Matish said the ruling in the Workman petition was law of the land, meaning it already applied to Loughry and Davis’ impeachment trials.

Loughry’s hearing before the Judicial Hearing Board also doesn’t remove him from office. According to a JIC flow chart showing how a complaint is handled, the JHB could issue a written recommendation to the supreme court asking for Loughry to be disciplined. Loughry would be able to defend himself before the supreme court, but if the court decides to discipline Loughry, there are only four choices: “admonishment; reprimand; censure; suspension without pay for up to one year; and/or a fine of up to $5,000.”

Loughry could also be disbarred as an attorney based on a recommendation of the Lawyer Disciplinary Board to the supreme court, the only entity that can discipline a lawyer. The Lawyer Disciplinary Board and the Office of Disciplinary Counsel are empowered with investigating violations of the Rules of Professional Conduct by attorneys.

State Code 30-2-6 says that “any court before which any attorney has been qualified, on proof being made to it that he has been convicted of any felony, or any other crime involving moral turpitude, shall annul his license to practice therein or suspend the same for such time as the court may prescribe.”

That might prevent him from being ineligible to run for re-election in 2024 but doesn’t remove him as a justice either.

“I don’t think suspension of a law license, disbarment, or annulment would be enough to remove, but it could be grounds for impeachment,” said Anthony Majestro, a Charleston attorney with experience in election law.

Some point to State Code 6-5-5: “No person convicted of treason, felony, or bribery in any election, before any court in or out of this state, shall, while such conviction remains unreversed, be elected or appointed to any office under the laws of this state; and, if any person, while holding such office, be so convicted, the office shall be thereby vacated.”

Article 4 section 6 of the West Virginia Constitution also says “All officers elected or appointed under this constitution, may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty, or gross immorality, in such manner as may be prescribed by general laws, and unless so removed they shall continue to discharge the duties of their respective offices until their successors are elected, or appointed and qualified.”

The language in state code and the state constitution would affect most lawmakers, elected executive branch officials, and other elected officials. But when it comes to supreme court justices the constitution only allows for one way for them to be removed: impeachment. The last paragraph in article 8 section 8 of the constitution says, “a justice or judge may be removed only by impeachment.”

“This provision seems to be pretty clear to me that like a lot of things in our constitution we’re finding out that judges and justices have some special rules that apply to them but not anyone else,” Majestro said.

The most recent justice to join the court, Beth Walker, has already had her impeachment trial, with the Senate acquitting her of her one impeachment charge. Whether the legislature tries to draw up new impeachment articles against Workman and former justice Davis is unknown, but consensus is being found to remove the court’s only sitting convicted felon.

“It saves the taxpayers money, you’re not going to have a lengthy trial,” Byrd said. “Right now it’s about saving taxpayer dollars and being efficient with something that is as clear as night and day.”

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