West Virginia Senate approves rules for Supreme Court impeachment trials

State Senate President Mitch Carmichael, R-Jackson, receives the House of Delegates’ impeachment managers. (Photo by Steven Allen Adams)

CHARLESTON — The ball is in the West Virginia Senate’s court, as the body approved rules that could result in the removal of at least one justice of the Supreme Court of Appeals.

The state Senate gaveled in Monday in Charleston, a week after the House of Delegates approved 11 articles of impeachment against Justices Allen Loughry, Robin Davis, Margaret Workman and Beth Walker.

The rules give the presiding officer — in this case, the chief justice or acting chief justice — the authority to conduct the trial. The rules lay out the process for oaths, discovery of evidence, motions, rights of the accused and the process for issuing a verdict and judgment.

It’s been 143 years since there was a trial of impeachment in the West Virginia Senate, according to Sen. Charlie Trump, the Republican chair of the Senate Judiciary Committee. Judiciary Committee staff determined the last impeachment trial in the chamber was in 1875.

“In drafting this set of rules, what I think is critically important, and I think every member of this body I hope will agree, that they be fair, they be balanced, provide for due process to anyone named in the articles of impeachment, and provide respect for precedence that exists, which there are few.”

State Sen. Mike Woelfel, D-Cabell, explains the second of two amendments he offered to the resolution creating the Senate’s rules of procedures. (Photo by Steven Allen Adams)

The last time the Senate had to draft any rules of procedure for a possible trial was the impeachment of former state Treasurer A. James Manchin in 1989, who resigned before the Senate could try him. The Senate Judiciary Committee has used those rules as a guide.

“The Senate, according to the journals, never actually adopted the rules in 1989,” Trump said. “We’ve been able to find the draft and look at those.”

An amendment from Sen. Stephen Baldwin, D-Greenbrier, would require in-person attendance by the charged justices on the first day. The amendment failed 22-12 along party lines.

“There is a real sense to try to get this right,” Baldwin said. “It’s my sense that if we have a grave situation like this involving a public servant, that that public servant ought to stand before us.”

In another amendment, Sen. Mike Woelfel, D-Cabell, tried to change the resolution to allow the Senate to choose the order it would try the justices based on the number of articles of impeachment against each justice. If passed, it would have meant that Loughry would be tried first, followed by Workman and Walker.

“Justice delayed is justice denied,” Woelfel said. “Justice Loughry has denied any wrongdoing since day one. I’ve seen him on TV, I’ve seen him in court denying everything. That is not necessarily the case with the other justices. I think it makes sense to follow the articles as they go.”

“Why are we delegating to the Supreme Court who goes first in this process,” asked Woelfel.

Trump said he is just following the state Constitution, which gives power to the chief justice to preside over any impeachment trial.

“I think the rule contemplates a collaborative approach to the question of scheduling that would involve the Senate, the impeachment managers, and all of the respondents and their counsel,” Trump said. “If the amendment offered by my esteemed colleague from Cabell is adopted, it eviscerates any flexibility that might be necessary to have as these proceedings move forward.”

The amendment from Woelfel failed 22-12.

The Senate also received a message from the House announcing the appointment by the House of impeachment managers. These managers will serve as prosecutors during the impeachment trial. House Speaker Pro Tempore John Overington, R-Berkeley, appointed the following impeachment managers: House Judiciary Chairman John Shott, R-Mercer; House Judiciary Vice-Chairman Roger Hanshaw, R-Clay; Delegate Ray Hollen, R-Wirt; Delegate Andrew Byrd, D-Kanawha; and Delegate Rodney Miller, D-Boone.

The Senate adjourned until state Senate President Mitch Carmichael, R-Jackson, calls the senators back into session, when they will vote to approve the articles of impeachment. It will take a two-thirds vote to approve each article. Each justice will be individually tried and it will take another two-thirds vote to convict.

If convicted, a justice can be removed from office and the body can also vote to prohibit the convicted justices from holding another office in the future.

All four justices — Loughry, Davis, Workman, and Walker — are charged in an article for not controlling spending, wasting taxpayer dollars, and not putting controls and policies in place to hold themselves accountable to the public. Evidence during the House’s impeachment investigation revealed the court spent more than $1.5 million on unnecessary office renovations and furnishings, thousands of dollars on private parties and catered lunches.

Loughry alone is charged in six articles, ranging from spending over $363,000 on renovations and furnishings, taking furniture belonging to the court to his home, circumventing state code by overpaying senior status judges, using state vehicles and fuel cards for his personal benefit, misusing state computers for use by his wife and son, and lying under oath to the House Finance Committee.

Workman, the current chief justice after Loughry was removed from that position earlier this year, is charged twice with overpaying senior status judges, who by law cannot make more than a sitting circuit court judge when filling in for illnesses or vacancies on the bench. The charge includes the alleged defrauding of the Public Employees Retirement System.

Davis, who resigned Aug. 13 so the vacancy for the unexpired term can be decided in a special election on Nov. 6, also was impeached twice for senior state judge overpayments. She also has a third impeachment charge for spending more than $500,000 for her office renovations and furnishings. The rules allow any senator to move to dismiss articles of impeachment against any justice who resigns from office during the process.

Loughry will be arraigned for a third time on Thursday after picking up two additional wire fraud charges. He now faces 25 federal charges, including 17 for wire fraud and two for mail fraud.

Loughry also is charged with lying to FBI agents, witness tampering and obstruction of justice. He also faces a 32-count complaint from the state Judicial Investigation Commission before the Supreme Court.

Former justice Menis Ketchum avoided the House impeachment process by resigning July 27. He also was charged shortly afterward by the U.S. Attorney’s Office for Southern West Virginia in a federal information with one felony count of wire fraud for his use of state vehicles and fuel cards to cross state lines for personal golf trips.

Ketchum agreed to plead guilty and a judge will hear that plea deal on Thursday.

While Loughry is suspended without pay, Workman appointed Cabell County Circuit Court Judge Paul Farrell to sit on the Supreme Court in his place. He will also serve as acting chief justice since Workman will be on trial. Farrell also has the authority to appoint another acting chief justice to oversee the impeachment trial should he feel the need to recuse himself.