WV Supreme Court rules that Legislature has exceeded its power to impeach

[Quartz]

As Christine Keeler might have said, “Well they would rule that way, wouldn’t they?”

[UltraVires]

@Tom_Tildrum

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.

[RTFirefly]

A link to the WV Constitution: West Virginia Constitution

[Martin_Hyde]

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? :dubious:

[Hamlet]

@Tom_Tildrum

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.

@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.

@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.

[AK84]

They say that the Senate will appeal. To SCOTUS. What would be the federal question here?
What would SCOTUS do. Maybe vacate and ramand?

[AK84]

They say that the Senate will appeal. To SCOTUS. What would be the federal question here?
What would SCOTUS do. Maybe vacate and ramand?

[Whack-a-Mole]

@AK84

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.

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/jurisdiction-original-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?).

[AK84]

This would not be original jurisdiction.

[UltraVires]

W.Va. Supreme Court Justice Loughry guilty on 11 counts, not guilty on 10...

Loughry guilty on 11 counts, not guilty on 10, 1 hung.

[RTFirefly]

@AK84

This would not be original jurisdiction.

With respect to the Federal judicial power, it would be.

@AK84

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.

[That_Don_Guy]

@BigT

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?

[UltraVires]

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.

[Hamlet]

@UltraVires

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?

@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.

[UltraVires]

@Hamlet

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.

@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.

[Hamlet]

@UltraVires

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.

@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.

@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.

@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.

@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).

[Elendil_s_Heir]

Here’s the Washington Post’s article on the mess: https://www.washingtonpost.com/news/morning-mix/wp/2018/10/15/west-virginia-botches-impeachment-of-chief-justice-faces-constitutional-crisis-stay-tuned/?noredirect=on&utm_term=.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: Caperton v. A.T. Massey Coal Co. - Wikipedia.

[UltraVires]

@Hamlet

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?

[Hamlet]

@UltraVires

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.

[Richard_Parker]

@UltraVires

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.