Former Justice Davis files federal lawsuit against governor, Legislature

CHARLESTON — Adding another wrinkle to the impeachment process against members of the West Virginia Supreme Court of Appeals, a justice who resigned is taking those who initiated the process and voted for her impeachment to federal court.

Robin Jean Davis, who resigned Aug. 13 when the House of Delegates adopted 11 articles of impeachment against all remaining elected justices, filed a complaint Wednesday in the U.S. District Court of Southern West Virginia.

The complaint said the House of Delegates had no factual or legal basis for impeaching the justices, calling the charges incomplete and invalid. Davis’ attorneys argue that the impeachment process violates Davis’ constitutional rights of free speech, due process, equal protection and violates the state Constitution’s requirement for separation of powers and judicial independence.

“The facts cited purportedly to support impeachment do not remotely rise to the level of impeachable conduct,” her attorneys wrote. “But the House was not interested in investigating whether the facts warranted impeachment. Instead, it used these charges as a pretext to remove all four Justices on West Virginia’s highest Court so that the governor could replace the popularly elected Justices with Republican men and create a ‘conservative court’ for years to come.”

Defendants in Davis’ complaint include Gov. Jim Justice, who called the Legislature into special session June 26 to start the impeachment process and appointed her replacement after she reigned. She named every member of the House of Delegates who voted on the four articles of impeachment naming her and the state senators who voted to continue her impeachment trial even though she had already resigned. She also named the clerks for the House and Senate.

Davis was impeached by the House on Aug. 13 and was named in four articles of impeachment. She was charged with spending more than $500,000 on office renovations and furnishings. She was charged twice with approving — during her term as chief justice– the overpaying of senior status judges beyond a cap in order to circumvent the state’s retirement system and the Internal Revenue System. In article 11, Davis, with Chief justice Margaret Workman and Justices Allen Loughry and Beth Walker, were charged with not implementing financial controls and internal policies on spending, vehicles and travel, and bidding processes.

In the complaint, Davis’ lawyers said she could not be removed from the Supreme Court through impeachment because she transmitted a letter announcing her retirement the same day the House was voting on impeachment articles. She didn’t officially announce her resignation to the public until the following day, Aug. 14, in a press conference at the Supreme Court chambers.

She cited the resignation of former justice Menis Ketchum, who announced his resignation July 11, the day before the House Judiciary Committee began its impeachment investigation of the Supreme Court. He resigned July 27 and on Aug. 31 the U.S. Attorney’s Office for the Southern District of West Virginia announced Ketchum would plead guilty to a federal information of wire fraud for using a state car and fuel card to travel across state lines. Ketchum’s sentencing hearing is Dec. 6.

“Because Justice Davis has retired, she, like Justice Ketchum, cannot be removed from the court,” the complaint said. “Nonetheless, she, unlike Justice Ketchum, was named in the articles of impeachment.”

The complaint alleges that the House did not include findings of fact with their impeachment articles, violating the rules they adopted for impeachment procedures in June. Her lawyers further allege that the House didn’t have enough evidence to impeach her over office renovations because the House had not received all the invoices from the Supreme Court.

In regard to overpayment of senior status judges — retired judges who remain on call to fill vacancies on circuit courts and the Supreme Court — Davis’ lawyers said the court has the authority to appoint and compensate judges as they see fit.

Senior status judges are prohibited by state law from making more than active circuit judges, which is capped at $126,000. When a senior status judge’s combined compensation and retirement reaches the cap, they either have to forego receiving their retirement annuity or forego additional assignments.

Several chief justices, including Davis, would convert certain senior status judges from employees to independent contractors to get around the cap, costing taxpayers $271,000 between 2011 and 2014.

“Although there is a statutory cap on the total amount of compensation that may be made to senior status judges, that statutory restriction cannot constrain the judiciary’s constitutional authority,” her lawyers wrote. “To the extent that the West Virginia Code conflicts with the authority vested in the Court by the West Virginia Constitution, constitutional interests take precedence and supersede the statutory limitations.”

One of the major claims in the complaint is that the impeachment of all four justices was a “power grab” to remove Democrats from the court and replace them with conservative justices. Her lawyers also claim that gender bias played a role, since the majority of the justices that were impeached are women.

“By entering Articles of Impeachment against all four remaining Justices on the Court, the male-dominated House of Delegates sought to remove all of the female Justices on the Court — so that a male governor could replace them,” according to the complaint. “And indeed, Gov. Justice’s first two appointments have been men.”

“While the two male Justices (Ketchum and Loughry) faced criminal charges and complaints of ethics violations, no such charges were leveled against the court’s three female Justices,” the complaint continued. ‘

“Thus, the only way for the Defendants to change the gender balance of the Court from majority-female to majority — (or even exclusively) male was through the brute-force method of wholesale impeachment — and that is what they pursued.”

Davis is asking for a declaratory judgement declaring that the impeachment process entered into by the governor, the House, and the Senate is “improper, invalid, and contrary to law.” If the complaint is granted, it would set aside the articles of impeachment against Davis and stop the impeachment trial against Davis in the senate.