Judge Not

Marc Williams defends the West Virginia chief justice

Published in 2020 Virginia Super Lawyers magazine

By Bill Glose on May 12, 2020


While most of the nation watched a presidential impeachment from afar this year, Marc Williams had a front-row seat in 2018 when the West Virginia House of Delegates attempted to impeach all five state Supreme Court justices over alleged misappropriation of funds. 

Williams and his legal team at Nelson Mullins in Huntington represented Chief Justice Margaret L. Workman. He felt the impeachment argument failed to consider the state’s constitutional arrangement regarding authority over judicial spending.

“Under a 1970s amendment to our constitution, the judiciary had exclusive control over that budget,” says Williams. “So by constitutional language, they would present their budget to the Legislature every year, and the Legislature was required to fund it in full. There was no opportunity for line-item vetoes or percentage reductions or anything else.”

Among the claims of malfeasance were Justice Allen Loughry’s office renovations (including a $32,000 couch), and multiple justices’ improper use of state-owned cars for personal travel. But the key issue was the overpayment of senior-status judges, which disregarded legislation that limited a retired judge’s salary to 25 percent of an active judge’s. 

Because of illnesses and suspensions, some courthouses had no sitting judge, Williams says. So the Supreme Court of Appeals was required to seek out senior-status judges to cover operations in those courthouses. 

“They had to handle the criminal docket, handle abuse and neglect cases, handle civil cases, etc.,” he says. “So the Supreme Court passed their own resolution that said in exigent circumstances where it is necessary to maintain courthouse access—which is required under the open-access provision of our state constitution—that the prohibition on earning over a certain amount does not apply. And the Legislature took offense to that because they said that was an attempt to circumvent a duly passed piece of legislation.”

The House of Delegates assembled in a special session to rule on impeachment. They were required to recite the grounds for each article of impeachment and vote on each one individually. But that never happened.

“[The House] had spent a really long time debating whether these articles should ultimately be sent to the Senate,” Williams says, “and I think to save time, they decided to group it into one vote. That ultimately was fatal because they did not follow their own rules that were designed to provide a due process protection to the justices.”

On Oct. 1, 2018, the Senate trial of Justice Beth Walker began. It concluded the following day with a vote of 32-1-1 to keep her in office. Workman’s trial was next, but four days before it was to begin, the West Virginia Supreme Court of Appeals—temporarily composed of five lower circuit court judges—issued a ruling that the impeachment violated due process as well as the Separation of Powers Doctrine.

“It was one of the few times where there was an attempt to have a judicial intervention to stop an impeachment,” says Williams. “By our accounts, it was the only time that was successfully tried in the history of the Republic—that a court intervened to stop an impeachment of a constitutional officer.”

Two justices—Loughry and Menis Ketchum—had resigned but the other three returned to the bench. The West Virginia Legislature then decided to appeal the case to the U.S. Supreme Court. Their original position had been that impeachment is exclusively within the purview and control of the Legislature and not subject to judicial intervention. Now they argued that the judicial intervention violated the federal guarantee clause.

“Once they decided to take the case up to the U.S. Supreme Court, they needed a federal constitutional provision to contest, because up to that point, it’d been nothing but state constitutional law that had been decided,” Williams says. “So they opted to make the argument that the guarantee clause, which basically says that separation of power issues cannot be infringed in a way that would deny the existence or the guarantee of equal access by all branches of government.” 

A previous U.S. Supreme Court decision in a political gerrymandering case ruled that guarantee clause cases are non-justiciable. 

“Under those circumstances,” Williams says, “we felt pretty confident that, ironically, it was going to be a non-justiciability issue that would preclude their challenge to this decision.”

The Court denied certiorari last fall, closing a unique chapter in West Virginia history. 

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