Workman to stand trial on impeachment Monday despite constitutional issues

Photo courtesy of the West Virginia Supreme Court of Appeals Justice Margaret Workman’s impeachment trial before the West Virginia Senate is scheduled to begin Monday.

CHARLESTON — Margaret Workman, chief justice of the West Virginia Supreme Court of Appeals, made state history by being elected as the first woman justice.

She might make history again if the Senate takes up the trial on the articles of impeachment adopted by the House of Delegates.

Workman’s trial was to begin 9 a.m. Monday, however, acting justices hearing a petition from her to block the trial ruled in her favor. In a decision released Friday, a panel of justices led by Harrison County Circuit Judge James Matish as acting chief justice ruled that the impeachment of Workman violated the separation of powers and didn’t follow the rules of procedure set by the House of Delegates.

“This case is not about whether or not a Justice of the Supreme Court of Appeals of West Virginia can or should be impeached; but rather it is about the fact that to do so, it must be done correctly and constitutionally with due process,” the justices wrote. “We are a nation of laws and not of men, and the rule of law must be followed.”

Not all the appointed justices agreed with the majority. Kanawha County Circuit Judge Duke Bloom and Upshur County Circuit Judge Jacob Reger agreed partially with the majority, but decided they went too far.

Photo courtesy of the West Virginia Supreme Court of Appeals Justice Margaret Workman’s impeachment trial before the West Virginia Senate is scheduled to begin Monday, although a ruling by acting justices on Friday may have an impact.

“Judicial intervention in an impeachment proceeding should be extremely rare, and only in the limited situation where an impeachment charge is prohibited by the Constitution,” the minority wrote.

The status of the trial is unclear, however, the Senate on Thursday said it plans to move forward with Monday’s trial and plans an appeal to the U.S. Supreme Court, according to the statement from Jacque Bland, communications director for the Senate.

Acting Chief Justice Paul Farrell, who was assigned to preside at the Senate trial, said he is not “refusing” to preside, but has to obey the court order. The writ of prohibition prohibits the Senate from proceeding and so he is prohibited from presiding, his statement said.

It’s a constitutional crisis unknown in state history.

GLASS CEILING BREAKER

Since 1988, there have been three women on the state Supreme Court, but Workman was the first in the state’s history.

According to the West Virginia Encyclopedia, Margaret Lee Workman was born May 22, 1947, in Charleston. Her Supreme Court biography says she was the first of her family — originally from Boone County — to attend college. She graduated from the West Virginia University College of Law in 1974.

One of her first jobs was working as an assistant counsel for the U.S. Senate’s Public Works Committee, chaired by the late U.S. Sen. Jennings Randolph, D-W.Va. She returned to Charleston and clerked on the 13th Judicial Circuit in Kanawha County.

Having impressed former Gov. Jay Rockefeller during his political campaign in 1976, he appointed Workman as a circuit judge in the 13th Circuit, making her the youngest judge in the state at the time. She won election to the bench in 1982 and 1984.

After two terms as a circuit judge, Workman set her sights on the state’s highest court. She won election to the Supreme Court in 1988, making her the first woman elected to the court, and also making her the first woman elected to a statewide office.

Workman served until 1999, when she resigned and started her own legal practice. After two failed attempts to mount a Democratic primary campaign for West Virginia’s 2nd Congressional District in 2002 and 2004, Workman again ran and won a 12-year term on the Supreme Court. Her term is up in 2020.

FACING THE MUSIC

The Senate voted not to convict Workman’s fellow justice, Beth Walker, in a 32-1 decision on Oct. 2. Workman faces the same article of impeachment as Walker. Article 11 charged Workman, Walker, Justice Allen Loughry, and former justice Robin Davis with having no policies governing spending and use of state resources for personal use.

Loughry was convicted on Friday on 11 of the 22 counts against him in federal court in Charleston.

According to article 11, the court had no travel policies prior to 2016, did not report taxable fringe benefits to the IRS, provided no supervision of spending and purchasing card use, had no policy on home offices, no inventory system and not putting projects out for bid.

Workman also faces two additional impeachment charges. Both Workman and Davis — whose resignation was official the day after the House adopted four articles of impeachment against her — are charged in article 4 with approving contracts to overpay 10 senior status judges in violation of their statutory limited maximum salary. Workman also is individually charged in article 6 for her actions in this alleged scheme during her 2015 term as chief justice.

Senior status judges — retired justices and judges who remain on call to fill vacancies and absences — are prohibited by state law from earning more than active circuit judges. If a senior status judge’s combined compensation and retirement reaches $126,000, they either have to forego receiving their retirement annuity or forego additional assignments.

According to the article, chief justices — including Workman — would convert these retired judges to independent contractors to get around the cap, costing taxpayers approximately $271,000 between 2011 and 2014 according to data from the legislature’s Post Audit Division.

PICKING UP THE PIECES

On Feb. 16, Workman was named the new chief justice of the Supreme Court, to replace Loughry.

“It’s time to begin what will be a very long process of restoring public respect for the Supreme Court,” Workman said in a statement that same day.

While traditionally the title of chief justice rotated every year to one of the five justices, in January 2017 Loughry became the first justice voted by the others to a four-year term as chief justice. Over a year later he was removed from that role.

Loughry, who joined the court as a law clerk for the late Justice Elliot “Spike” Maynard, became Workman’s law clerk after Maynard was defeated by Workman and former Justice Menis Ketchum in 2008. Loughry ran for a seat on the Supreme Court in 2012 and won.

Workman’s impeachment troubles stem from that same law clerk-turned-justice. The Legislature was called into special session June 26 to start impeachment investigations of the court and justices after Loughry was charged in a 22-count federal indictment and a 32-count complaint from the Judicial Investigation Commission earlier that month. The Post Audit Division also released several reports on court spending and vehicle use during this time.

Just prior to the House Judiciary Committee started its impeachment investigations, Ketchum announced his resignation effective July 27. The following week, the U.S. Attorney’s Office for the Southern District of West Virginia announced a plea deal with Ketchum. On Aug. 23, Ketchum pleaded guilty to one felony count of wire fraud for his use of a state fuel card to fill up a silver Buick Lucerne owned by the court and take it to Virginia to play golf. Legislative audits also showed that Ketchum used the car to commute back and forth between Charleston and Huntington. He will be sentenced in December.

After an investigation by members of the House Judiciary Committee over several days in July and August and a debate by the full house, delegates adopted 11 articles of impeachment against the remaining justices — Workman, Loughry, Davis, and Walker. Davis announced her resignation the next day on Aug. 14, while Workman had no intention of stepping down.

“I am not resigning, either from the Court or from my position as chief justice,” Workman said in a statement after the impeachment articles were adopted. “There is no basis for my impeachment, and I will continue to do the work, both administrative and judicial, that the people of West Virginia elected me to do. I look forward to putting all the facts before the Senate in the next phase of this process.”

HITTING THE BRAKES

Despite saying she looked forward to going before the Senate, Workman has attempted a couple of times to halt or slow the process.

During impeachment pre-trial hearings in the Senate on Sept. 11, attorneys for Workman and Walker attempted to make a deal with the House impeachment managers who were given the duty of prosecuting the cases. According to the agreement, Workman and Walker agreed to acknowledge and take responsibility for the issue brought up in article 11 and agree to continue reforms at the court.

In return, the impeachment managers would recommend the Senate drop impeachment articles against the two justices and instead would accept a censure resolution passed by the Senate. While a motion to adopt the resolution was made, it was ruled out of order because the senators — acting as a jury — had yet to hear the evidence against the justices.

Since then, Workman has tried a two-pronged approach. Attorney Ben Bailey, representing Workman in the impeachment trial, filed multiple motions to dismiss Workman’s articles of impeachment as well as a motion to move the trial from Oct. 15 to after the Nov. 6 election. Attorney Marc Williams, representing Workman before the state Supreme Court, filed a petition with the court to stop the impeachment proceedings altogether.

“On Aug. 13, 2018, the West Virginia House of Delegates broke the law … What nefarious deeds of the petitioner served as the basis for these articles? The petitioner had the audacity to fulfill her constitutional mandate of ensuring that West Virginia courts efficiently serve West Virginia citizens by appointing senior status judges to fill judicial vacancies,” the petition stated. “She had the audacity to exercise her constitutional authority to pass and utilize a budget for the state’s judicial branch. In short, she had the audacity to perform and exercise the powers mandated to her by the West Virginia Constitution.”

Delegate and House impeachment manager John Shott, R-Mercer, expressed concerns at the language used by Williams in his Supreme Court petition in a response filed Oct. 5.

“We confess ourselves stunned by the invective and hostility displayed toward the legislative branch and by the aspersions cast upon us as members of the bar of this state, as representatives elected by the people of this State, and as individuals bound by oaths to obey the Constitution and laws of our state,” Shott said. “We are shocked to find ourselves accused in the harshest terms as lawbreakers.”

The House impeachment managers also responded Oct. 5 to the 15 motions Bailey filed at the end of September. One of the major issues pointed out in the House responses is that Workman’s lawyers continue to think the impeachment process is similar to a criminal or civil trial.

“As we have stated numerous times elsewhere, all issues surrounding impeachment are essentially political questions,” wrote Shott. “It is not for us, but for the Senate, to determine upon what grounds impeachment may lie, as they must judge whether the conduct of the (Workman) is sufficient in their understanding to be ‘maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.'”

Cabell County Judge Paul Farell, acting as the chief justice and presiding officer of the impeachment trials, was to will rule on the motions Monday prior to the start of an impeachment trial.

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