Do you want to know what a real constitutional crisis looks like? Consider the current situation in West Virginia, where the House of Representatives accused the entire Supreme Court of the state in August, claimed improper use of public money. Chief Justice Margaret Workman challenged the legislator, claiming that her accusation violated the state constitution. Her case went to … the Supreme Court of West Virginia, where every justice is disqualified to hear it or is suspended without payment. Five right-handed judges – who had been appointed by a designated judge, who in turn had been selected by a retired judge, who had been elected by Workman – heard the case instead. On Thursday they were unanimously in favor of Workman.
The Senate of West Virginia initially planned to ignore the decision of the court and continue with the Workman process. It only stood still when the justice Paul T. Farrell, who was to lead the proceedings, announced that he would not take part in a lawsuit that his own court had found unlawful. Meanwhile, the House of Representatives explained it will nevertheless submit its case to the Senate.
This saga is an object lesson in the dangers of politicizing the judiciary. A small conflict over the court's budget has escalated into an impasse between the court and the legislature, one that is driven by Republican attempts to deny control of the Democratic judiciary. Legislators are ready to defy a decision of the Supreme Court of the state, thereby permanently undermining the constitutional separation of powers. There are no real goodies in this story, but some are certainly worse than others. And if the republicans succeed in their plan, they will have provided a roadmap to other politicians who would like to evade an independent judiciary.
This absurd process produced a result that is easy to dismiss unlawful.
The West Virginia disaster began in late 2017, when a local news station revealed that the judges had spent large sums of money on office renovations. These expenses, although tasteless, were not clearly illegal, since the court has almost complete control over its own budget. Nevertheless, a bipartisan group of lawmakers called for further investigations. Republicans have postponed the action until August because it has given them political advantage. The judges were elected and the Democrats had a 3-2 majority at court for a long time. Any justice that was rejected before mid-August would be replaced by an election in November. However, a justice that was rejected after August 14 would be replaced by the Republican Government Jim Justice and would not be elected until May 2020. The legislature manipulated the court to ensure that the governor could replace the Democrats with Republicans.
Yet the court itself was not impeccable. Justice Menis Ketchum, a Democrat, resigned from the court in July and then pleaded guilty to a number of wire fraud crimes. Justice Allen Loughry, a Republican, was charged in June with fraud, false statements and witnessing tampering. Loughry, who had been suspended in court but refused to resign, was convicted on multiple points of fraud and false statements. The other three judges – Workman, Robin Davis and Beth Walker – are accused of less serious offenses, namely excessive use of state resources. Davis resigned earlier than faced with accusations and challenges the legislator to the federal court. Walker, a loyal conservative, was acquitted by the Senate in October. It seems likely that Republicans never intended to remove Walker and only accused her for consistency because she also spent a lot of money ($ 130,655) on upgrading her rooms.
That leaves Workman, a liberal lion who was elected judge in 1988, resigned in 1999, and then again in 2008 in court. Like her colleagues, Workman spent a dubious amount ($ 111,035) on renovating her rooms. Along with Loughry and Davis, they also paid overpaid retired judges who have entered circuit courts, the legal limit (although they meet the pay scale issued by the court itself). Workman was dismissed on the basis of her careless expenses and overpaid amounts. In September, she complained to the legislator, claiming that her accusation violated the state constitution and prompted the State Supreme Court to put an end to its threatening Senate process.
This resulted in a problem: there is no problem really a Supreme Court of West Virginia at this time, at least not one that can settle this dispute. Workman disqualified himself from hearing her own case. Walker also disqualified herself because she had to deal with a similar accusation to Workman. Loughry remains suspended and acting judge Paul Farrell sr., Who temporarily replaces Loughry, has also disqualified himself. Justices Tim Armstead and Evan Jenkins, who were appointed by the governor to replace Ketchum and Davis, also refused to take part, apparently because of the potential conflict of interest. So there are zero seated judges able to hear the case of Workman.
In response, Workman himself asked for one former Justice, Thomas McHugh, to appoint an acting Chief Justice. McHugh selected Harrison County Circuit Judge James Matish. Then Matish appointed four acting judges to replace Walker, Armstead, Jenkins and Farrell (replacing himself with Loughry). It was this court that heard the Workman case-a court that was chosen neither by the people of West Virginia, nor by the legislature, nor by the governor.
On Thursday, this improvised court expressly ruled in favor of Workman, because the actions of the legislator have violated both the separation of powers and the fair trial. The Senate of the state could not legitimately remove Workman because he overpaid senior judges, the court said, because the constitution of the state gives the judge the sole authority for publishing his own rules. While the legislator tried to limit these payments, the chief judge explicitly overruled these restrictions and Workman therefore acted within her constitutional authority in paying larger balances. In addition, the court ruled that the legislator is not competent to accuse a justice based on alleged violations of the West Virginia Code or Judicial Conduct. Once again, the state constitution allows the judge, and nothing but the court, to enforce this code. An unproven claim that a justice has violated the code may not provide the basis for deposition. So Workman can not be removed for alleged code breaches by spending too much on renovations.
The court also found that the legislator violated Workman's patented rights by deviating from the legal procedures that govern the deposition. Oddly enough, the House of Representatives failed to put "findings of fact" in its deposition articles – a clear obligation under the state law. The House also refused to explain exactly how Workman's behavior was a punishable offense. As a result, the court ruled "in the strongest terms" that the legislator had violated the appropriate procedure and had invalidated all articles of accusation against Workman. (All five judges agreed that the procedure violated the separation of powers, but two found that the court should not have settled the fair trial and considered it a political issue, not a legal issue.)
Stripped of its legal status, this decision clarifies what most observers already know: this deposition is fundamentally political and the legislator has implemented it in a remarkably incompetent manner. The constitution of West Virginia allows deposition "for maladministration, corruption, incompetence, gross immorality, dereliction of duty or high crime or crime." It is significant that the House did not even try to explain how Workman's behavior fit into one of these categories. The Chief Judge has spent money in accordance with court guidelines. For better or worse, the Constitution allows the State Supreme Court to draft its own rules and procedures. Workman did not violate them. How can she be accused of "maladministration" when she ruled the court according to her own rules?
Nonetheless, Thursday's decision is already being attacked by Republicans, who are looking forward to rejecting it as the fruit of the poisonous tree. Workman had no direct control over the staff of the makeshift court, but she selected the judge who had appointed the temporary chief judge, who had then saved the remainder of the bank. Because the Republicans' early refusal to follow the court's verdict illustrates, this absurd process produced a result that can easily be dismissed as unlawful. In all likelihood, we have not yet heard the final word about the deposition of Margaret Workman.
In his opinion of Thursday, the Supreme Court of West Virginia regretted the current state of affairs. "The biggest fear we should have in this country today is ourselves," the court wrote. "If we do not stop the struggle, work together, and follow the rules, if we do not use social media for good instead of using them to destroy, we will destroy ourselves in the process." What we see in West Virginia today, is a government that destroys itself. It started as a partisan seizure of power. It can end in the destruction of an entire state secretary.
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