Samuel H. Simon, Houston Harbaugh

What the West Virginia House of Delegates did on Aug. 14, is likely unprecedented in American history. It voted to impeach every current member of a state Supreme Court. This move will almost certainly throw into confusion litigation at every level in West Virginia for the foreseeable future.

The Supreme Court of Appeals of West Virginia has five seats and began 2018 with all seats filled. Early in 2018, the other four justices voted to remove Chief Justice Allen Loughry from office due to accusations of violations of the state Code of Judicial Conduct. Loughry was then suspended without pay.

In June, the U.S. Attorney for the Southern District of West Virginia announced a 22-count indictment against Loughry, under which he faces nearly 400 years in prison.

In July, Justice Menis Ketchum resigned from the court and shortly thereafter pleaded guilty to a federal charge of wire fraud. On Aug. 7, the House Judiciary Committee recommended that Loughry and the three other remaining justices (Beth Walker, Margaret Workman and Robin Davis) be impeached. The articles of impeachment allege financial abuses including more than $1 million spent to renovate the justices’ offices, misuse of state-issued vehicles and computers, authorizing unlawful payments to senior-status judges no longer on full-time duty, and a failure of oversight over the judicial branch. Loughry was convicted on 11 of the 22 federal charges on Oct. 12.

In response to the vote in the House of Delegates, Justice Davis immediately retired. Her retirement came days before the statutory deadline to add that vacancy to a special election to be held this November, which was already scheduled to fill the seat vacated by Ketchum. The other three justices (Workman and Walker and the suspended Loughry) will face trial in the West Virginia Senate.

A conflict then arose over the appointment of interim justices. Upon the suspension of Loughry, new Chief Justice Margaret Workman appointed Cabell County Circuit Judge Paul Farrell to serve as an interim justice during Loughry’s suspension. Gov. Jim Justice further appointed U.S. Rep. Evan Jenkins and West Virginia House Speaker Tim Armstead to serve as interim justices in place of the resigned Ketchum and Davis.

But two legal challenges were filed to those interim appointments. Among other grounds, the petitions alleged that Evan Jenkins did not have a law license for the requisite length of time, that Tim Armstead’s appointment violated the West Virginia Constitution’s emoluments clause (which says that elected officials cannot be elected or appointed to any office that was “created“ during their term) because Armstead helped “create“ the vacancies on the Supreme Court by voting in favor of impeachment while serving in the House, and that both appointments violated the “will of the people in electing Democrats to the Supreme Court“ because Ketchum and Davis were both elected as Democrats prior to West Virginia’s 2015 switch to nonpartisan judicial elections, but Jenkins and Armstead are both Republicans.

Workman and Davis recused themselves from hearing the petitions challenging the interim appointments of Jenkins and Armstead, which left only interim Justice Farrell to hear the matter. Farrell temporarily appointed Circuit Judges Russell Clawges Jr., Timothy Sweeney, H. Charles Carl III, and R. Craig Tatterson solely to hear the petitions filed against the appointments. That group of judges dismissed the challenges to Jenkins’ and Armstead’s appointments at the end of September.

To make matters even more complicated, in addition to the challenges filed to the interim appointments, a legal challenge was also filed by Workman seeking to bar the Senate from proceeding with the trial in her impeachment. All of the other interim justices withdrew from the case, which meant that the suit was heard by five additional circuit judges—James Matish, Rudolph Murenksky, Ronald Wilson, Louis Bloom and Jake Reger. On Oct. 11, those judges issued a three-to-two decision holding that the West Virginia Legislature overstepped its authority when it voted to impeach Workman.

The ruling found that the impeachment charges against Workman violated the separation-of-powers doctrine because they were based in part on violations of judicial-conduct rules that only the West Virginia Supreme Court has the power to enforce. The court also held that the vote in the House of Delegates suffered from defects that deprived Workman of due process. The court issued a writ of prohibition purporting to bar the Senate from proceeding with the trial. When the Senate convened on Monday, Oct. 15, to try Workman’s charges of impeachment, neither Acting Chief Justice Paul Farrell (who would be the presiding officer under the West Virginia Constitution) or Workman appeared. Spokespersons for the West Virginia Senate have indicated that the Legislature may appeal the decision to the U.S. Supreme Court.

So far in 2018, not only have more than a dozen different judges served (at least in some capacity) as Justices of the West Virginia Supreme Court, but West Virginia appears to have a constitutional crisis on its hands, with the Supreme Court ruling that the West Virginia Legislature lacked the power to impeach members of that same court. This ongoing scandal will likely slow appellate litigation in West Virginia to trickle—if not bring it to a screeching halt. West Virginia is one of the handful of states that does not have an intermediate appellate court. Appeals from trial courts are taken directly to the Supreme Court. The Supreme Court also has original jurisdiction on matters of habeas corpus, mandamus, prohibition and certiorari. It is highly unlikely that the court will be able to process even a fraction of its usual caseload.

In addition, the Supreme Court holds an oversight role over the state’s trial courts, but it is unlikely that much oversight will be coming for the foreseeable future. The effect is unknown. It could embolden the trial courts to make decisions secure in the knowledge that oversight will be minimal, or the trial courts could slow the pace of litigation because meaningful appellate review is not currently available. Either way, it will be months before this scandal is fully resolved, and in the meantime litigation in West Virginia will be taking place in a state of uncertainty.

Samuel H. Simonis the co-chair of Pittsburgh law firm Houston Harbaugh’s commercial litigation practice. He is licensed to practice in West Virginia as well as in Pennsylvania and other jurisdictions. He can be reached at ssimon@hh-law.com or at 412-288-2263.