Order on the court: Returning normalcy to the West Virginia Supreme Court
CHARLESTON — If you had asked experts this time last year whether by now the state would be down two justices of the West Virginia Supreme Court of Appeals due to federal charges, and the entire court under an impeachment investigation, the answer would be one of surprise.
“I’ve been in the state since the 1980s and I can’t think of anything like this on the court in my 40 years,” said one political observer who declined to be identified. “I’m stunned the national media isn’t paying any attention to this. It’s a huge national story. You have two justices under federal indictment and another two in a precarious position.”
Yet, this is what is happening. One justice has resigned, taken a plea deal, and is working with federal investigators as they probe the remaining three justices. Another justice — suspended without pay after being charged in a 23-count federal indictment and another 32-count judicial ethics complaint sitting over his head — is taking the opposite track by pleading not guilty and denying any wrongdoing.
The aftermath will likely remain the same: with the governor appointing at least two seats to the High Court, and special elections this fall and 2020 to fill the remainder of the unexpired terms. Candidates are already throwing their hats in the ring to sit on the troubled court.
According to the West Virginia Encyclopedia, no prior Supreme Court justice has faced federal charges, let alone two justices at the same time.
“To my knowledge, there has never been a West Virginia Supreme Court justice to have faced federal (or any other) criminal charges,” said Bob Bastress, a professor at the West Virginia University College of Law.
“In terms of the modern court, this is pretty unique,” said John C. Kilwein, associate professor and director of undergraduate studies for the political science department at WVU. “I’ve been in the state since 1990 and I haven’t seen anything like this before.
First to be charged by the U.S. Attorney’s Office of Southern West Virginia was Justice Allen Loughry. He pleaded not guilty to a 23-count indictment, including charges of wire fraud, converting state property to personal use, obstruction of justice, witness tampering, and lying to investigators.
Loughry is also facing a 32-count complaint from the state Judicial Investigation Commission, which is pending while the criminal case moves forward. He is suspended without pay from the court.
The second to be charged was Justice Menis Ketchum. He agreed to a plea deal last week and will plead guilty in a federal information to felony wire fraud. Ketchum is charged with using state vehicles and fuel cards for personal golf outings to Virginia. Being charged in an information means that Ketchum is cooperating with federal investigators, who are continuing to look at the state Supreme Court. Both Ketchum and Loughry have been cited for use of state vehicles for personal uses by the Legislature’s Post Audit Division.
Kilwein said that corruption on the Supreme Court is rare, given the high profile and visibility that justices have, and given the strictness of the Code of Judicial Conduct.
“You do expect better behavior,” Kilwein said. “You hopefully don’t get to that level with significant corruption and problems. But in (Loughry’s) case, you get so powerful you start to think you can do these kinds of things. At the end of the day it seems kind of silly.”
William Raftery, a senior analyst at the National Center for State Courts, said that criminal and ethical charges against supreme court or appeals court justices is not a common thing.
“In terms of how often this occurs, it’s hard to say,” Raftery said. “It’s not typical, obviously.”
According to Raftery, in the 1970s four of the seven justices of the Florida Supreme Court faced corruption scandals, forcing three justices into early retirement. Several of these retirements were brought about due to investigations by Florida’s Judicial Qualifications Commission. Raftery also pointed to a recent case in Pennsylvania.
“I think the most recent prior example was Orie Melvin in Pennsylvania,” Raftery said. “She was indicted on campaign finance charges — the accusation being she ran her sister’s election campaign out of her chambers. There were articles of impeachment filed and she resigned on top of being convicted for campaign finance violations.”
Raftery said that codes of judicial conduct that govern the ethical behavior of lawyers and the courts, along with independent commissions, help prevent the kinds of issues happening on West Virginia’s court.
“Sometimes the indictment comes, and the judicial disciplinary commission shows or the other way around,” Raftery said. “Usually it’s not in isolation; it’s not usually a situation where the person is facing potential criminal charges and the judicial disciplinary commission is sitting on its hands.”
Cleaning Up the Mess
On Monday, the House Judiciary Committee will meet for the seventh day of hearings looking into articles of impeachment against all the sitting justices of the Supreme Court. Formed by a resolution passed June 26 during a special session called by Gov. Jim Justice for the purpose of impeachment, the committee has met every Thursday and Friday except for last week.
While most of the testimony and evidence has been focused on Loughry, justices Margaret Workman and Robin Davis have also come under scrutiny, from use of taxpayer dollars for office furniture and renovations, to fancy catered lunches and parties at homes using public money.
The JIC has cleared Workman and Davis, as well as Justice Beth Walker — who took office in 2017 — of any judicial ethics violations. But the alleged misuse of public monies could still be used as reasons to bring articles of impeachment.
Committee members plan to tour the Supreme Court offices Monday morning, and the committee might hear testimony this week from Workman and Kelly Loughry, wife of Justice Loughry.
Later Monday evening, the committee plans to meet in executive session to decide whether to keep investigating or use the evidence they have and present articles of impeachment on one or more justice to the full House of Delegates. Democratic members of the committee are already putting pressure on Chairman John Shott, R-Mercer, to wrap things up, including presenting draft articles of impeachment against Loughry.
If the House approves articles of impeachment, it will take a two-thirds vote for the state Senate to approve the articles. The Senate would sit as a jury, hear evidence and testimony, and vote on whether the justice or justices committed impeachable offense, and remove them from office.
Appointments and Elections
With the resignation of Ketchum on July 27, Justice can appoint a replacement to serve until a special election is held to fill the remainder of Ketchum’s term, which is up in 2020.
According to state code, the Judicial Vacancy Advisory Commission must present the governor a list of three to five names within 90 days of Ketchum’s formal announcement. The commission has its first meeting Monday morning to discuss procedures for the vacancy.
If the commission doesn’t present the governor a list of names 30 days after the date of resignation, Justice can go ahead and appoint someone without the commission’s assistance.
Even if Loughry or another justice is impeached and removed from office, it’s not expected that a seat will be vacated before the August 14 cut off date. If Loughry is impeached after August 14, a special election wouldn’t occur for his seat until the May 2020 primary. In the meantime, whom Justice would appoint to that seat would serve until then.
In November, voters will be choosing who fills the remainder of Ketchum’s term. The filing period for the Supreme Court special election starts Monday and ends Aug. 21. Two candidates have already filed precandidacy paperwork with the Secretary of State’s Office, with one candidate in the process of filling out paperwork.
Dennise R. Smith, an attorney with Spillman, Thomas & Battle in Charleston; William Schwartz, an attorney with Harvit & Schwartz in Charleston; and 11th Family Circuit Judge Jim Douglas of Charleston.
Other names being mentioned as either possible appointments or candidates in the special election include:
House Speaker Tim Armstead, R-Kanawha, is not running for re-election to the House. In a floor speech, Armstead mentioned the possibility of a Supreme Court run in the future. He also recused himself for sitting as speaker during the impeachment special session.
Rep. Evan Jenkins, a Republican congressman for West Virginia’s 3rd District, met with Justice this week. The governor tweeted a photo of the meeting, and all but endorsed Jenkins for the job. He previously ran for Supreme Court in 2000 before winning election to the state Senate.
Former Supreme Court Justice Brent Benjamin lost re-election after one term for Walker in 2016. According to sources, several lawyers are pressuring either Benjamin to run or for Benjamin to be appointed.
Sources also say that 23rd Circuit Judge Chris Wilkes is interested in moving up to the High Court. The Eastern Panhandle judge represented Jefferson, Berkeley and Morgan counties.
According to the Secretary of State’s Office, there is no limit on the number of people who can file between Monday and Aug. 21. The candidate with the most votes will fill the term until 2020, when the seat is officially up for election. Candidates can file in person at the Secretary of State’s Office in Charleston, or the Secretary of State’s business hubs in Clarksburg and Martinsburg. Candidates can also file online at www.wvsos.gov.
(Adams can be contacted at firstname.lastname@example.org)