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Is state Constitutional crisis brewing?

Can the West Virginia Supreme Court order the state Senate to cancel an impeachment trial against a justice of the West Virginia Supreme Court? Of course it can. The state’s highest court can issue just about any directive justices choose in regard to affairs within the state.

But what happens if such an order is issued?

On Oct. 1, the Senate is scheduled to begin a series of trials for three sitting justices and one (Robin Davis) who resigned after the House of Delegates approved articles of impeachment against her. If convicted, the justices could be removed from office.

Justice Allen Loughry faces more than two dozen federal criminal charges. Senators will remove him.

Davis, who had more than $500,000 spent to remodel her personal office, probably will lose in the Senate, too. How that will affect her is uncertain.

Cases involving Justices Elizabeth Walker and Margaret Workman are different. The House accuses Walker only of failing to adopt court policies to prevent certain abuses of power. Articles of impeachment against Workman include that and an allegation she was involved in circumventing state law by paying retired judges too much to come back on temporary duty.

Workman’s lawyers have filed a petition with the state Supreme Court, asking it to stay proceedings in the Senate. Impeachment proceedings in the House were illegal, the attorneys contend.

Hearing arguments for and against that petition will be a special panel of circuit judges sitting temporarily as the Supreme Court. Obviously, it wouldn’t have done to have impeached justices hearing the case.

Workman’s lawyers take an interesting position. “This writ is not intended to provoke a constitutional crisis; it is intended to prevent one,” they wrote in their petition.

But if the temporary high court rules in Workman’s favor, it could indeed result in a constitutional crisis. Senators could defy the court and proceed with Workman’s trial.

That isn’t supposed to happen in this country. Remember checks and balances?

But that’s the key: The court serves as a check on abuses by the executive and legislative branches. The only way lawmakers have of acting as a check on the judiciary is the impeachment process.

Workman’s lawyers’ argument amounts to insisting she was only doing her job. It’s a weak position, and that’s being charitable. The whole process of impeachment is intended to let legislators determine whether members of the judicial and executive branches have committed improper acts that go beyond doing their jobs.

It’s not quite that simple, of course. The judiciary does have to have some independence from the other branches. But letting the court be the sole arbiter of how much independence is required — of whether justices should be free to circumvent laws and waste taxpayers’ money — wouldn’t go over well with most West Virginians.

Temporary justices hearing Workman’s case may agree with that. But if they side with her, giving her and future justices what amounts to a get-out-of-jail-free card, it could set up a constitutional crisis. The next stop could be the U.S. Supreme Court.

Unless legislators, some of whom want to dismiss accusations against Workman and Walker anyway, settle the issue on their own …

Mike Myer can be reached at mmyer@theintelligencer.net.

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