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Old 10-11-2018, 05:38 PM
UltraVires UltraVires is offline
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WV Supreme Court rules that Legislature has exceeded its power to impeach

https://www.wvnews.com/news/wvnews/w...iderail-latest

This is a serious constitutional crisis for the State of West Virginia. I know all of these judges and I cannot help but hang my head.

Didn't we learn in civics class that the Legislature has an absolute and unreviewable power of impeachment? If the Legislature can get a majority of the House and 2/3ds of the Senate to impeach and remove respectively a Justice for being too mean, or too fat, or just because we feel like it, is that decision not always been unreviewable?

The fact that the Supreme Court has taken this power from the Legislature means that there is no check at all on the Supreme Court because the Court itself may order a stop to any impeachment trial.

The imperial judiciary lives, and I could not be more respectfully disappointed by the three temporary justices in the majority.

Last edited by UltraVires; 10-11-2018 at 05:38 PM.
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Old 10-11-2018, 05:53 PM
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Yes, legislatures have the absolute right to impeach. But the argument that won is that they did not follow the proper procedure for doing so, meaning that they never actually impeached anyone. The remedy, as stated, would be for them to actually get back together and follow the procedure properly.

It is not the court usurping its power. It is requiring the constitution of the state to be followed. As I've said repeatedly, that has been the Court's power ever since the establishment of judicial review.

The other direction would actually empower an imperial legislature, because they would not have to follow the constitution to accomplish their goals. This is a constitutional democracy: either follow the constitution, or amend it.
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Old 10-11-2018, 06:09 PM
YamatoTwinkie YamatoTwinkie is offline
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Originally Posted by UltraVires View Post

Didn't we learn in civics class that the Legislature has an absolute and unreviewable power of impeachment? If the Legislature can get a majority of the House and 2/3ds of the Senate to impeach and remove respectively a Justice for being too mean, or too fat, or just because we feel like it, is that decision not always been unreviewable?
If the Legislature says they got a majority of the House and 2/3ds of the Senate, but in actuality one of those senators was sick that day and never ended up voting, leaving them just shy of 2/3ds, does the Supreme Court just have to accept that result as unreviewable just because the legislature declared it so, or is it their responsibility to say "Sorry guys, you need to do this over again, per the Constitution this time."

I see that as a similar analogy as to what happened here.
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Old 10-11-2018, 06:10 PM
UltraVires UltraVires is offline
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That's not what the Court said:

http://www.courtswv.gov/supreme-cour...18/18-0816.pdf

It's a long read, but the main point is that excessive spending, paying senior status judges too much, and failing to maintain policies and procedures are rules that are left to the Judicial branch of government, and as such, cannot be properly the subject of impeachment by the Legislature.

So, even by that logic, the Legislature should then be able to devise whatever procedures it chooses for impeachment as those are the province of the Legislative branch.

But on a fundamental level, this allows judges to stop any impeachment of a judge simply by ruling that it cannot proceed. There is therefore no check on the judiciary. In these threads, we have argued that the U.S. Supreme Court has too much power, but the rejoinder is always that Congress may impeach them if they go too far. This ruling says that the Court can stop that impeachment! Where is the check?
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Old 10-11-2018, 06:13 PM
UltraVires UltraVires is offline
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Originally Posted by YamatoTwinkie View Post
If the Legislature says they got a majority of the House and 2/3ds of the Senate, but in actuality one of those senators was sick that day and never ended up voting, leaving them just shy of 2/3ds, does the Supreme Court just have to accept that result as unreviewable just because the legislature declared it so, or is it their responsibility to say "Sorry guys, you need to do this over again, per the Constitution this time."

I see that as a similar analogy as to what happened here.
It is not at all similar. I agree that courts have held an extremely limited power of judicial review of impeachment solely for things like that. Say, the House never impeached, but the Senate voted 2/3ds so it declared the official removed from office. Such extreme deviations from the norm should be subject to some review, but such extreme deviations would necessarily cause a constitutional crisis. This decision unnecessarily causes one.
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Old 10-11-2018, 06:29 PM
HurricaneDitka HurricaneDitka is offline
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What's the backstory here? Why is the WV legislature trying to impeach the WV Chief Justice?
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Old 10-11-2018, 06:44 PM
Ruken Ruken is offline
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What's the backstory here? Why is the WV legislature trying to impeach the WV Chief Justice?
https://boards.straightdope.com/sdmb...d.php?t=860432

I think there's a longer thread too.
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Old 10-11-2018, 06:54 PM
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What's the backstory here? Why is the WV legislature trying to impeach the WV Chief Justice?
I see the link was posted, but here is a summary version:

Last fall, an investigation was launched into corruption and excessive spending at the Supreme Court. Our Supreme Court has five members. At the time, the Justices were: Chief Justice Loughry; Associate Justices Workman, Walker, Ketchum and Davis.

After the investigation, the evidence showed that Loughry was the main culprit, doing all sort of things. He is currently on trial in the federal system and the jury just finished deliberating for the day without a verdict.

Further, Justice Ketchum chose to resign and he pled guilty to a federal felony, sentencing pending.

The WV House of Delegates looked at the evidence and impeached Loughry, Davis, Walker, and Workman for their part in excessive spending. Davis, Walker, and Workman were cleared of any legal violation and are not criminally charged.

The day after the impeachment, Davis resigned while maintaining her innocence.

Walker had her Senate trial earlier this month and was acquitted 32-1, but was subsequently censured. The Senate deemed her conduct blameworthy, but not enough for removal from office.

Workman's trial is/was scheduled for Monday, Davis' trial later in the month, and Loughry's next month. Workman filed the instant suit to stop the Senate from proceeding for the reasons stated in the article and in the opinion.

Now, it seems that the five temporary justices on the Court have ordered the Senate to stop the impeachment trial even though that body has the "sole power" to try impeachments. The imperial judiciary lives.
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Old 10-11-2018, 07:06 PM
HurricaneDitka HurricaneDitka is offline
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Thanks Ruken and UltraVires for getting me up-to-speed.
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Old 10-11-2018, 08:12 PM
Ruken Ruken is offline
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Originally Posted by Ruken View Post
https://boards.straightdope.com/sdmb...d.php?t=860432

I think there's a longer thread too.
Linked to in that thread but here's that link as well:
https://boards.straightdope.com/sdmb...d.php?t=856288
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Old 10-11-2018, 08:16 PM
FlikTheBlue FlikTheBlue is offline
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I’m not from WV, but here are a few questions regarding this situation and how it might be resolved.

1. Since this was a ruling by the WV Supreme Court, couldn’t the WB appeal their decision to the SCOTUS?

2. Alternatively, can’t they impeach and remove the temporary justices and appoint new ones, with better vetting on how they will rule on this matter?

3. Hold said justices in contempt of congress and have the state police remove the justices in question by force?
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Old 10-11-2018, 08:23 PM
DSYoungEsq DSYoungEsq is offline
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Originally Posted by UltraVires View Post
Didn't we learn in civics class that the Legislature has an absolute and unreviewable power of impeachment?
I certainly learned no such thing in my civics class. I may have learned that this principle applies to the federal government, since the Constitution of the US doesn't qualify the process. But certainly West Virginia is within its rights to establish otherwise.

Oh, I forgot, states' rights to be different only apply when they are working in your favor. Silly of me.

How is the judiciary being "imperial" here? Here is what the judiciary said:

The people gave us the sole right to punish "bad" judges (see Article VIII, § 8). You said this person is a "bad" judge. You then tried to punish her for being a "bad" judge (she broke the law). You can't do that; that's our job.

Now, if the judiciary said something like: hey, the Supreme Court's justices are insulated from your actions because there's an inherent immunity to such actions, THAT would be "imperial" as it were. But, of course, they did not.

The way to correct this, of course, is to amend the state constitution to make clear that, when a judge is "bad" because of violation of the rules set down by the Court, the Court gets to deal with that if it wants, but this does not limit the ability to remove a judge/justice via impeachment proceedings in the Legislature. Problem solved.
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Old 10-11-2018, 08:46 PM
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Originally Posted by UltraVires View Post
Quoting instead from your article:
“Our forefathers in establishing this Country, as well as the leaders who established the framework for our State, had the forethought to put a procedure in place to address issues that could arise in the future; in the ensuing years that system has served us well,” Matish wrote for the majority.

“What our forefathers did not envision is the fact that subsequent leaders would not have the ability or willingness to read, understand, or to follow those guidelines,” the opinion states. “The problem we have today is that people do not bother to read the rules, or if they read them, they decide the rules do not apply to them.”

Matish acknowledged that the governor could call a special session of the Legislature, that the House of Delegates has the right to adopt a resolution and articles of a bill of impeachment, and that the Senate conducts trials of impeachment and can make its own rules, and that a member of the Supreme Court must preside over those trials.

“This Court should not intervene with any of those proceedings because of the separation of powers doctrine, and no one branch may usurp the power of any other co-equal branch of government,” Matish wrote. “However, when our constitutional process is violated, this Court must act when called upon.”

The opinion goes on to say that “fundamental fairness requires this Court to review what has happened in this state over the last several months when all of the procedural safeguards that are built into this system have not been followed. In this case, there has been a rush to judgment to get to a certain point without following all of the necessary rules. 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. We are a nation of laws and not of men, and the rule of law must be followed.”
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Old 10-11-2018, 09:44 PM
UltraVires UltraVires is offline
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I certainly learned no such thing in my civics class. I may have learned that this principle applies to the federal government, since the Constitution of the US doesn't qualify the process. But certainly West Virginia is within its rights to establish otherwise.

Oh, I forgot, states' rights to be different only apply when they are working in your favor. Silly of me.

How is the judiciary being "imperial" here? Here is what the judiciary said:

The people gave us the sole right to punish "bad" judges (see Article VIII, § 8). You said this person is a "bad" judge. You then tried to punish her for being a "bad" judge (she broke the law). You can't do that; that's our job.

Now, if the judiciary said something like: hey, the Supreme Court's justices are insulated from your actions because there's an inherent immunity to such actions, THAT would be "imperial" as it were. But, of course, they did not.

The way to correct this, of course, is to amend the state constitution to make clear that, when a judge is "bad" because of violation of the rules set down by the Court, the Court gets to deal with that if it wants, but this does not limit the ability to remove a judge/justice via impeachment proceedings in the Legislature. Problem solved.
If that is the construction of the West Virginia Constitution, then it very arguably violates the Guarantee of a Republican form of government clause of the U.S. Constitution. A judiciary absolutely immune from any check, save by their own grace, is not one governed by the people.
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Old 10-11-2018, 09:51 PM
UltraVires UltraVires is offline
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Missed the edit window: What happens when the Court stops allowing certain amendments to be placed on the ballot because "procedures" were not followed or because it rules that the amendment violates checks and balances?

It also amazes me how the opinion is chock full of cites of the West Virginia Supreme Court defining the scope of its own power. That, again, is not a republican form of government.
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Old 10-11-2018, 09:55 PM
Richard Parker Richard Parker is offline
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If that is the construction of the West Virginia Constitution, then it very arguably violates the Guarantee of a Republican form of government clause of the U.S. Constitution. A judiciary absolutely immune from any check, save by their own grace, is not one governed by the people.
Which is, ironically, the classic non-justiciable question.
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Old 10-11-2018, 10:01 PM
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Which is, ironically, the classic non-justiciable question.
Well, so is this one.
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Old 10-11-2018, 10:04 PM
UltraVires UltraVires is offline
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And the constitutional crisis:

Quote:
Originally Posted by The Article
A spokeswoman for the state Senate said lawmakers will challenge the decision to the U.S. Supreme Court.

“Pursuant to the authority granted the Senate in the West Virginia Constitution, the Court of Impeachment will convene at 9 a.m. Monday,” Senate spokeswoman Jacque Bland stated.
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Old 10-11-2018, 10:13 PM
UltraVires UltraVires is offline
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And, sorry for the multiple posts, but based upon the evidence I have seen, I would not vote to convict Chief Justice Workman. I would vote to censure her as was done with Justice Walker.

However, this ruling calls into question the authority to convict Loughry. Paddling mileage expenses? Court business. Removing a valuable desk to his home? Court business. Telling other court employees to lie? Court business. Lying to the FBI? That was part of his role as a Justice, so the Court should handle it.

And the reasons are flimsy. Under the Constitution:

1) The Court can set its own "procedural" rules.
2) The Legislature can set salaries for judges during their "terms in office."

The Legislature passed a statute that said senior status judges (those retired judges who fill in occasionally) cannot be paid more than the salary of a full time judge.

This decision had the temerity to hold that paying senior status judges was a procedure rule, and that the Legislature had no power to set those salaries because those judges had no "terms" of office. Therefore, the statute is unconstitutional because it infringed on the judiciary's role. That's wordsmithing and legal sophistry at its finest.

BUT, EVEN IF IT IS NOT ILLEGAL, the Legislature can still impeach for maladministration. Under the temporary's Court's holding, it would seem that the Chief Justice could pay a senior status judge $5 million for a day's work and neither the Legislature or Executive could do jack shit about it.

I see no limiting principle in this opinion that does not allow the Court to act as a branch of government above the executive and legislative.
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Old 10-12-2018, 03:59 AM
Tom Tildrum Tom Tildrum is online now
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It's a terrible opinion in so many ways.

The court finds in the plain text of the impeachment provision of the state constitution that there is no right of direct appeal from the final decision of an impeachment tribunal. The inclusion of the term "according to law and evidence," however, was found to have created an implied right of collateral appeal rendering the proceedings fully reviewable, because under WV law, every wrong has a judicial remedy. The court then acknowledged that in a recent opinion, it had held that not every wrong has a judicial remedy, but it said that that other case involved matters fully committed to the legislature. To sum up, not every harm is justiciable, but impeachment is justiciable because someone is harmed.

They then struggle to find a vehicle for their review and settle upon the writ of prohibition, because the impeachment proceeding is quasi-judicial. Then, after finding that the state constitution assigned a quasi-judicial function to the legislature, and then finding an implied power of judicial review of that function, the court issues a ringing statement that WV law construes the separation of powers especially strictly.

The court then finds that the state constitution gives it the sole power to set rules for the conduct of litigation. This actually seems like a reasonable reading of the constitution (even though it arguably gives the court the power to order trial by ordeal if it wishes). It jumps from there, though, to a holding that this power extends to full budgetary authority, allowing the chief justice to set senior judges' salaries without constraint (indeed, the chief justice presumably could order that new courthouses be built).

Someone then remembered that a different provision of the state constitution expressly says that judges' salaries shall be limited by law, so the court had to "summarily" dismiss that provision. It noted that that provision went on to say that judicial salaries cannot be diminished during the judge's term of office, so it found that that somehow implied that such salaries were only bound by law during the term of office too -- a tortured reading at best. From there, they decided that senior status judges don't hold offices (a completely indefensible finding, given the role the senior judge plays), so their salaries aren't constrained by law. Note that this also means that the no-diminishment rule also doesn't apply to senior judges, so if the chief justice doesn't like the way a senior judge is handling a particular case, she can cut his pay.

There's no way for the legislature permissibly to replead the overpayment charges in new articles of impeachment, so that part of the dispute is over.

Then the court holds that it has the exclusive authority to set administrative rules for the judiciary, and exclusive authority to enforce those rules, so it effectively reads the "maladministration" element of the legislature's impeachment power out of the constitution. In theory, this could be defensible on the basis that the amendment to the judiciary portion of the constitution in the 1970s was intended to do that, but the court doesn't even attempt to make that case, which kind of suggests that there isn't any such evidence. Instead, it doesn't even acknowledge the conflict. There's no way to replead these charges either.

The tenor of the opinion is dismaying, too, using bombast and pomposity to cover the big legal leaps the court is taking. It also chastises the legislature for its tone in invoking "a constitutional crisis," but then goes on to sugest that if the legislature doesn't follow the rules, "we will destroy ourselves."

All of that said, it sounds like the legislature picked a huge fight over piddly problems, handled its own proceedings haphazardly, and litigated its case quite stupidly. I wouldn't have voted to impeach or to convict. That doesn't make the court's ruling any less of a mess, but it's fair to say that the legislature invited this upon itself needlessly.
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Old 10-12-2018, 07:23 AM
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As Christine Keeler might have said, "Well they would rule that way, wouldn't they?"
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Old 10-12-2018, 07:30 AM
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It's a terrible opinion in so many ways.

The court finds in the plain text of the impeachment provision of the state constitution that there is no right of direct appeal from the final decision of an impeachment tribunal. The inclusion of the term "according to law and evidence," however, was found to have created an implied right of collateral appeal rendering the proceedings fully reviewable, because under WV law, every wrong has a judicial remedy. The court then acknowledged that in a recent opinion, it had held that not every wrong has a judicial remedy, but it said that that other case involved matters fully committed to the legislature. To sum up, not every harm is justiciable, but impeachment is justiciable because someone is harmed.

They then struggle to find a vehicle for their review and settle upon the writ of prohibition, because the impeachment proceeding is quasi-judicial. Then, after finding that the state constitution assigned a quasi-judicial function to the legislature, and then finding an implied power of judicial review of that function, the court issues a ringing statement that WV law construes the separation of powers especially strictly.

The court then finds that the state constitution gives it the sole power to set rules for the conduct of litigation. This actually seems like a reasonable reading of the constitution (even though it arguably gives the court the power to order trial by ordeal if it wishes). It jumps from there, though, to a holding that this power extends to full budgetary authority, allowing the chief justice to set senior judges' salaries without constraint (indeed, the chief justice presumably could order that new courthouses be built).

Someone then remembered that a different provision of the state constitution expressly says that judges' salaries shall be limited by law, so the court had to "summarily" dismiss that provision. It noted that that provision went on to say that judicial salaries cannot be diminished during the judge's term of office, so it found that that somehow implied that such salaries were only bound by law during the term of office too -- a tortured reading at best. From there, they decided that senior status judges don't hold offices (a completely indefensible finding, given the role the senior judge plays), so their salaries aren't constrained by law. Note that this also means that the no-diminishment rule also doesn't apply to senior judges, so if the chief justice doesn't like the way a senior judge is handling a particular case, she can cut his pay.

There's no way for the legislature permissibly to replead the overpayment charges in new articles of impeachment, so that part of the dispute is over.

Then the court holds that it has the exclusive authority to set administrative rules for the judiciary, and exclusive authority to enforce those rules, so it effectively reads the "maladministration" element of the legislature's impeachment power out of the constitution. In theory, this could be defensible on the basis that the amendment to the judiciary portion of the constitution in the 1970s was intended to do that, but the court doesn't even attempt to make that case, which kind of suggests that there isn't any such evidence. Instead, it doesn't even acknowledge the conflict. There's no way to replead these charges either.

The tenor of the opinion is dismaying, too, using bombast and pomposity to cover the big legal leaps the court is taking. It also chastises the legislature for its tone in invoking "a constitutional crisis," but then goes on to sugest that if the legislature doesn't follow the rules, "we will destroy ourselves."

All of that said, it sounds like the legislature picked a huge fight over piddly problems, handled its own proceedings haphazardly, and litigated its case quite stupidly. I wouldn't have voted to impeach or to convict. That doesn't make the court's ruling any less of a mess, but it's fair to say that the legislature invited this upon itself needlessly.
I agree with every single word you wrote. I am so very disappointed in the ruling and
the judge.
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Old 10-12-2018, 10:53 AM
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A link to the WV Constitution: http://www.wvlegislature.gov/WVCODE/WV_CON.cfm
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Old 10-12-2018, 10:58 AM
Martin Hyde Martin Hyde is offline
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Didn't Governor Justice hand pick the replacement Supreme Court? Why didn't he make sure they'd rule how he wanted in a case like this?
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Old 10-12-2018, 10:59 AM
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It's a terrible opinion in so many ways.
It is a wordy, overlong, and occasionally tortured opinion. I only gave it a cursory reading, and it was like chewing aluminum foil.

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Originally Posted by TT
The court finds in the plain text of the impeachment provision of the state constitution that there is no right of direct appeal from the final decision of an impeachment tribunal. The inclusion of the term "according to law and evidence," however, was found to have created an implied right of collateral appeal rendering the proceedings fully reviewable, because under WV law, every wrong has a judicial remedy. The court then acknowledged that in a recent opinion, it had held that not every wrong has a judicial remedy, but it said that that other case involved matters fully committed to the legislature.
I think they're right here. Despite UV's assertion that we all learned that impeachment is "unreviewable", I don't believe that is correct. Especially considering the certain remedies clause in the WV Constitution. I also found the court's distinction of the Holmes case to be persuasive.

I don't really have the time or care to go over the remainder of the opinion in detail, but I do think it's clear that the majority opinion is really stretching to get the result they wanted. However, I also tend to agree with them that impeachment proceedings are bound by the Constitution, so the proceedings must meet the requirements of due process, etc.

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Originally Posted by TT
All of that said, it sounds like the legislature picked a huge fight over piddly problems, handled its own proceedings haphazardly, and litigated its case quite stupidly. I wouldn't have voted to impeach or to convict. That doesn't make the court's ruling any less of a mess, but it's fair to say that the legislature invited this upon itself needlessly.
Agreed.

Bigger picture, I don't think the impeachment power is or should be, unreviewable. And the political climate now and the attacks on the judiciary by Republicans emphasize exactly why. When a party's response to a court ruling that doesn't go their way, say a gerrymandering case, the proper response isn't to simply impeach every judge who ruled against them. That strikes at the very heart of our system of checks and balances.

And it's almost impossible to ignore the political underpinings of the impeachments in WV. It's not a coincidence at all that the vast majority of the Senate impeachers are Republicans and the targets are Democrats. Allowing the legislature is simply remove judges for actions that are (from my brief reading) not illegal, is a dangerous, dangerous thing. I'm not defending anything the judges were accused of doing, but the impeachment smells much more like a move to enhance Republican power in the judiciary than it is to fight against corruption and stand up for the little guy who pays taxes.
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Old 10-12-2018, 01:07 PM
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They say that the Senate will appeal. To SCOTUS. What would be the federal question here?
What would SCOTUS do. Maybe vacate and ramand?
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Old 10-12-2018, 01:09 PM
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They say that the Senate will appeal. To SCOTUS. What would be the federal question here?
What would SCOTUS do. Maybe vacate and ramand?
  #28  
Old 10-12-2018, 03:07 PM
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They say that the Senate will appeal. To SCOTUS. What would be the federal question here?
What would SCOTUS do. Maybe vacate and ramand?
IANAL but I think the SCOTUS has jurisdiction.

Quote:
Article III, section 2, of the Constitution distributes the federal judicial power between the Supreme Court's appellate and original jurisdiction, providing that the Supreme Court shall have original jurisdiction in "all cases affecting ambassadors, other public ministers and consuls," and in cases to which a state is a party.

SOURCE: https://www.fjc.gov/history/courts/j...-supreme-court
Since the state of West Virginia is a party to this litigation they can go to the SCOTUS it seems (and in this case if not the SCOTUS then where?).
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  #29  
Old 10-12-2018, 03:25 PM
AK84 AK84 is online now
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This would not be original jurisdiction.
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Old 10-12-2018, 04:20 PM
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http://wvmetronews.com/2018/10/12/ju...gs-on-1-count/

Loughry guilty on 11 counts, not guilty on 10, 1 hung.
  #31  
Old 10-12-2018, 04:27 PM
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This would not be original jurisdiction.
With respect to the Federal judicial power, it would be.

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They say that the Senate will appeal. To SCOTUS. What would be the federal question here?
Didn't seem to be one with Bush v. Gore in 2000, but they found one.
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Old 10-12-2018, 06:29 PM
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Quote:
Originally Posted by BigT View Post
Yes, legislatures have the absolute right to impeach.
Not according to West Virginia's Constitution:

"Any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor. "

Who decides whether the charges fit any of those categories? The Legislature, or the state judiciary?
  #33  
Old 10-12-2018, 11:37 PM
UltraVires UltraVires is offline
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The "remedies" clause and the "law and evidence" clauses have been heightened far beyond any recognizable limits.

I cannot sue a prosecutor or a judge under the remedies clause. I cannot sue a ski slope operator or an equestrian club under WV statutes which have been upheld by the Supreme Court. That is merely a general statement that says that the courts will be open for things that can be redressed, nothing more.

The law and evidence clause is even more laughable. To wrest some sort of judicial review out of that contradicts the language that the Legislature has the "sole" power of impeachment and to try impeachments.

All this opinion does is to say that the ultimate power in WV does not reside in the people, but in judges. It is the best case yet for the federal courts to apply the Guarantee Clause of the U.S Constitution.
  #34  
Old 10-13-2018, 01:33 AM
Hamlet Hamlet is online now
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Originally Posted by UltraVires View Post
The "remedies" clause and the "law and evidence" clauses have been heightened far beyond any recognizable limits.

I cannot sue a prosecutor or a judge under the remedies clause. I cannot sue a ski slope operator or an equestrian club under WV statutes which have been upheld by the Supreme Court. That is merely a general statement that says that the courts will be open for things that can be redressed, nothing more.

The law and evidence clause is even more laughable. To wrest some sort of judicial review out of that contradicts the language that the Legislature has the "sole" power of impeachment and to try impeachments.
Are there any limits on the impeachment power? Judges who are gay can be impeached for being insufficiently moral? Judges who find gerrymandering to be unconstitutional can be impeached for maladministration? In your view, only the legislature can limit the legislature's power to impeach?

Quote:
Originally Posted by UV
All this opinion does is to say that the ultimate power in WV does not reside in the people, but in judges.
Great rhetoric. Completely inaccurate, but great fodder for a sound bite. Good luck with that.
  #35  
Old 10-14-2018, 11:13 AM
UltraVires UltraVires is offline
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Originally Posted by Hamlet View Post
Are there any limits on the impeachment power? Judges who are gay can be impeached for being insufficiently moral? Judges who find gerrymandering to be unconstitutional can be impeached for maladministration? In your view, only the legislature can limit the legislature's power to impeach?

Great rhetoric. Completely inaccurate, but great fodder for a sound bite. Good luck with that.
Quote:
Originally Posted by WV Constitution
4-9. Impeachment of officials.
Any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor. The House of Delegates shall have the sole power of impeachment. The Senate shall have the sole power to try impeachments and no person shall be convicted without the concurrence of two thirds of the members elected thereto. When sitting as a court of impeachment, the president of the supreme court of appeals, or, if from any cause it be improper for him to act, then any other judge of that court, to be designated by it, shall preside; and the senators shall be on oath or affirmation, to do justice according to law and evidence. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit, under the state; but the party convicted shall be liable to indictment, trial, judgment, and punishment according to law. The Senate may sit during the recess of the Legislature for the trial of impeachments.
How can you take the word "sole power" and say that it means "partial power, with review by another branch that has partial power"?

When our side says that your judges make law instead of applying it, this is it. Sole power means sole power. There are checks by the judiciary in other aspects of government, but not when it comes to impeachment and removal. So to answer your question, no, there is no check on the Legislature when it comes to impeachment, except for the 2/3 requirement and these legislators having to justify their choice to the voters.

If you have legislatures impeaching justices for being gay and for disapproving of court decisions (not counting those extra constitutional decisions which strip another branch of power) then you have a bigger problem that the voters can deal with.

This is similar to the argument raised in another case about what you do if a legislature punishes overtime parking with life in prison without parole. The argument basically boils down to what if people are too stupid to govern themselves: we need philosopher kings in the form of judges to steer them right.

ETA: And again, I would vote "no" to remove Chief Justice Workman from office. But the Legislature has the absolute power to do what it is doing.

Last edited by UltraVires; 10-14-2018 at 11:17 AM.
  #36  
Old 10-14-2018, 12:46 PM
Hamlet Hamlet is online now
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Originally Posted by UltraVires View Post
How can you take the word "sole power" and say that it means "partial power, with review by another branch that has partial power"?
The power of impeachment and the power of review of impeachment are two separate things. The word "sole" means the judiciary cannot impeach anyone. Just like the judiciary can't enact legislation, tax, or run the military. But judicial review is separate, just like when the judiciary reviews legislation, taxes, or use of war powers.

However, sole doesn't mean that the power is unlimited and unreviewable.

Quote:
Originally Posted by UltraVires
When our side says that your judges make law instead of applying it, this is it.
Same old, same old rhetoric. Let me try it: "When your side says that "sole" means "unlimited and unreviewable", you're making law instead of applying it." Hey, that was fun.

Quote:
Originally Posted by UltaVires
If you have legislatures impeaching justices for being gay and for disapproving of court decisions (not counting those extra constitutional decisions which strip another branch of power) then you have a bigger problem that the voters can deal with.
And god forbid we realize the founders thought about the legislature overstepping its bounds, and put in checks and balances on those powers.

Quote:
Originally Posted by UltraVires
This is similar to the argument raised in another case about what you do if a legislature punishes overtime parking with life in prison without parole. The argument basically boils down to what if people are too stupid to govern themselves: we need philosopher kings in the form of judges to steer them right.
No, we just need judges to do their duty and interpret the Constitution. So when the Constitution says that "nor cruel and unusual punishments inflicted", the court can say that when the legislature punishes overtime parking with life in prison without parole, it violated the Constitution. That's kinda how the Constitution, judicial review, and checks and balances works.

Quote:
Originally Posted by UltraVires
ETA: And again, I would vote "no" to remove Chief Justice Workman from office. But the Legislature has the absolute power to do what it is doing.
And I may have voted to allow the impeachments (I'd have to actually do more research to have an opinion on it).
  #37  
Old 10-16-2018, 09:20 AM
Elendil's Heir Elendil's Heir is offline
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Here's the Washington Post's article on the mess: https://www.washingtonpost.com/news/...=.d80caec8ffc4

I really doubt SCOTUS will grant cert, but I could be wrong. And, ironically, SCOTUS ruled nine years ago in another case of West Virginia judicial shenanigans: https://en.wikipedia.org/wiki/Capert...Massey_Coal_Co.
  #38  
Old 10-16-2018, 09:05 PM
UltraVires UltraVires is offline
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Originally Posted by Hamlet View Post
The power of impeachment and the power of review of impeachment are two separate things. The word "sole" means the judiciary cannot impeach anyone. Just like the judiciary can't enact legislation, tax, or run the military. But judicial review is separate, just like when the judiciary reviews legislation, taxes, or use of war powers.

However, sole doesn't mean that the power is unlimited and unreviewable.

Same old, same old rhetoric. Let me try it: "When your side says that "sole" means "unlimited and unreviewable", you're making law instead of applying it." Hey, that was fun.

And god forbid we realize the founders thought about the legislature overstepping its bounds, and put in checks and balances on those powers.

No, we just need judges to do their duty and interpret the Constitution. So when the Constitution says that "nor cruel and unusual punishments inflicted", the court can say that when the legislature punishes overtime parking with life in prison without parole, it violated the Constitution. That's kinda how the Constitution, judicial review, and checks and balances works.

And I may have voted to allow the impeachments (I'd have to actually do more research to have an opinion on it).
Let's say that Mueller finds some pretty powerful evidence that Trump colluded with the Russians to rig the 2016 election. The House impeaches him and he is ready to stand trial in the Senate.

Do you believe that the U.S. Supreme Court, in a 5-4 decision should be able to order a halt to the Senate trial? Not would you agree with the decision, but should it have the power to do so?
  #39  
Old 10-17-2018, 01:53 PM
Hamlet Hamlet is online now
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Originally Posted by UltraVires View Post
Let's say that Mueller finds some pretty powerful evidence that Trump colluded with the Russians to rig the 2016 election. The House impeaches him and he is ready to stand trial in the Senate.

Do you believe that the U.S. Supreme Court, in a 5-4 decision should be able to order a halt to the Senate trial? Not would you agree with the decision, but should it have the power to do so?
If the impeachment violated the Constitution, yes. If the House's Impeachment was for "being an asshole", rather than a high crime or misdemeanor, then it violates the Constitution.
  #40  
Old 10-17-2018, 03:10 PM
Richard Parker Richard Parker is offline
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Originally Posted by UltraVires View Post
Let's say that Mueller finds some pretty powerful evidence that Trump colluded with the Russians to rig the 2016 election. The House impeaches him and he is ready to stand trial in the Senate.

Do you believe that the U.S. Supreme Court, in a 5-4 decision should be able to order a halt to the Senate trial? Not would you agree with the decision, but should it have the power to do so?
Wait, do you not? It seems obvious to me that they should be able to review the constitutionality of such an impeachment.
  #41  
Old 10-17-2018, 05:58 PM
UltraVires UltraVires is offline
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Wait, do you not? It seems obvious to me that they should be able to review the constitutionality of such an impeachment.
Yes: https://supreme.justia.com/cases/federal/us/506/224/

Nixon v. U.S. (1993) (no, not that Nixon)

Quote:
Originally Posted by The Majority
Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the "important constitutional check" placed on the Judiciary by the Framers. See id., No. 81, at 545. Nixon's argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. Id., No. 66, at 446. This split of authority "avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches." The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that "[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." Ibid.

Last edited by UltraVires; 10-17-2018 at 05:58 PM.
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