SENATE RESOLUTION 203
(By Senator Trump)
[Introduced August 20, 2018 ]

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Adopting rules of the Senate while sitting as a court of impeachment.

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Resolved by the Senate:

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That the following rules be adopted to govern the proceedings of the Senate while sitting

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as a court of impeachment during the Eighty-Third Legislature:

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RULES OF THE WEST VIRGINIA SENATE

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WHILE SITTING AS A COURT OF IMPEACHMENT

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DURING THE EIGHTY-THIRD LEGISLATURE

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1. Definitions

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(a) “Articles of Impeachment” or “Articles” means one or more charges adopted by the

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House of Delegates against a public official and communicated to the Senate to initiate a trial of

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impeachment pursuant to Article IV, Section 9 of the Constitution of West Virginia.

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(b) “Board of Managers” or “Managers” means a group of members of the House of

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Delegates authorized by that body to serve as prosecutors before the Senate in a trial of

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impeachment.

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(c) “Conference of Senators” means a private meeting of the Court of Impeachment,
including an executive session authorized by W. Va. Code §6-9A-4.

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(d) “Counsel” means a member of the Board of Managers or an attorney, licensed to

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practice law in this state, representing the Board of Managers or a Respondent in a trial of

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impeachment.

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(e) “Court of Impeachment” or “Court” means all Senators participating in a trial of
impeachment.
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(f) “Parties” means the Board of Managers and its counsel and the Respondent and his or
her counsel.

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(g) “Presiding Officer” means the Chief Justice of the West Virginia Supreme Court of

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Appeals or other Justice, pursuant to the provisions of Article IV, Section 9 or Article VIII, Section

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8 of the Constitution of West Virginia.

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(h) “Respondent” means a person against whom the House of Delegates has adopted and
communicated Articles of Impeachment to the Senate.

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(i) “Trial” means the trial of impeachment.

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(j) “Two thirds of the Senators elected” means at least 23 Senators.

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2. Pre-Trial Proceedings

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(a) Whenever the Senate receives notice from the House of Delegates that Managers

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have been appointed by the House of Delegates to prosecute a trial of impeachment against a

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person or persons and are directed to carry Articles of Impeachment to the Senate, the Clerk of

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the Senate shall immediately inform the House of Delegates that the Senate is ready to receive

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the Managers for the reporting of such Articles.

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(b) When the Board of Managers for the House of Delegates is introduced at the bar of

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the Senate and signifies that the Managers are ready to communicate Articles of Impeachment,

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the President of the Senate shall direct the Sergeant at Arms to make the following proclamation:

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“All persons are commanded to keep silence, on pain of imprisonment, while the House of

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Delegates is reporting to the Senate Articles of Impeachment”; after which the Board of Managers

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shall report the Articles. Thereupon, the President of the Senate shall inform the Managers that

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the Senate will notify the House of Delegates of the date and time on which the Senate will

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proceed to consider the Articles.

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(c) Upon the reporting of Articles of Impeachment to the Senate, the Senate shall adjourn

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until a date and time directed by the President of the Senate when the Senate will proceed to

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consider the Articles and shall notify the House of Delegates and the Supreme Court of Appeals
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of the same. Before proceeding to consider evidence, the Clerk shall administer the oaths

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provided in these Rules to the Presiding Officer; to the members of the Senate then present; and

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to any other members of the Senate as they shall appear.

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(d) If the Board of Managers reports Articles of Impeachment against more than one

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person, the Senate shall conduct a separate trial of each Respondent individually as required by

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Rule 19 of these Rules.

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3. Pre-Trial Conference

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The Presiding Officer shall hold a pre-trial conference with the parties in the presence of
the Court to stipulate to facts and exhibits and address procedural issues.
4. Clerk of the Court of Impeachment; Duties

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The Clerk of the Senate, or his or her designee, shall serve as the Clerk of the Court of

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Impeachment, administer all oaths, keep the Journal of the Court of Impeachment, and perform

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all other duties usually performed by the clerk of a court of record in this state. The Clerk of the

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Senate may designate other Senate personnel to assist in carrying out the Clerk’s duties. The

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Clerk shall promulgate all forms necessary to carry out the requirements of these Rules.

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5. Marshal of the Court of Impeachment; Duties

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The Sergeant at Arms of the Senate, or other person designated by the President of the

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Senate, shall serve as the Marshal of the Court of Impeachment. The Marshal of the Court of

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Impeachment shall keep order in accordance with these Rules under the direction of the Presiding

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Officer.

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6. Trial to be Recorded in Journal of the Court of Impeachment

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(a) All trial proceedings, not including transcripts of the trial and copies of documentary

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evidence required to be appended to the bound Journal of the Court of Impeachment by section

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(c) of this Rule, shall be recorded in the Journal of the Court of Impeachment. The Journal of the

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Court of Impeachment shall be read, corrected, and approved the succeeding day. It shall be

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published under the supervision of the Clerk and made available to the members without undue

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delay.

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(b) After the Journal of the Court of Impeachment has been approved and fully marked for

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corrections, the Journal of the Court of Impeachment so corrected shall be bound in the Journal

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of the Senate. The bound volume shall, in addition to the imprint required by Rule 49 of the Rules

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of the Senate, 2017, reflect the inclusion of the official Journal of the Court of Impeachment.

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(c) When available, transcripts of the trial and copies of any documentary evidence

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presented therein shall be printed and bound as an appendix to the Journal of the Court of

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Impeachment.

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7. Site of Trial

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The trial shall be held in the Senate Chamber of the West Virginia State Capitol Complex.

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All necessary preparations in the Senate Chamber shall be made under the direction of the

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President of the Senate.

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8. Floor Privileges

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Only the following persons may enter the floor of the Senate Chamber during the trial:

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Members of the Court of Impeachment; designated personnel of the Court of Impeachment; the

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parties; the Presiding Officer; a law clerk of the Presiding Officer; witnesses and their counsel

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while testifying; and authorized media, who shall be located in an area of the chamber designated

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by the Clerk.

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9. Representation of Parties

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The House of Delegates shall be represented by its Board of Managers and its counsel.

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The Respondent may appear in person or by counsel.

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10. Method of Address

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Senators shall address the Presiding Officer as “Madam (or Mr.) Chief Justice” or “Madam

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(or Mr.) Justice”.

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11. Oaths
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(a) The following oath, or affirmation, shall be taken and subscribed by the Presiding

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Officer: “Do you solemnly swear [or affirm] that you will support the Constitution of the United

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States and the Constitution of the State of West Virginia and that you will faithfully discharge the

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duties of Presiding Officer of the Court of Impeachment in all matters that come before this Court

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to the best of your skill and judgment?”

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(b) The following oath, or affirmation, shall be taken and subscribed by every Senator

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before sitting as a Court of Impeachment: “Do each of you solemnly swear [or affirm] that you will

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do justice according to law and evidence while sitting as a Court of Impeachment?”

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(c) The following oath, or affirmation, shall be taken and subscribed by every witness

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before providing testimony: “Do you solemnly swear [or affirm] that the testimony you shall give

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shall be the truth, the whole truth, and nothing but the truth?”

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12. Service of Process

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(a) The Respondent shall be served with a summons for the appearance of the

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Respondent or his or her counsel before the Court of Impeachment and provided with a copy of

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the Articles of Impeachment and a copy of these Rules. The summons shall be signed by the

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Clerk of the Court of Impeachment, bear the Seal of the Senate, identify the nature of proceedings

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and the parties, and be directed to the Respondent. It shall also state the date and time at which

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the Respondent shall appear to answer the Articles of Impeachment and notify the Respondent

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that if he or she fails to appear without good cause, the allegations contained in the Articles of

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Impeachment shall be uncontested and that the Senate shall proceed to vote on whether to

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sustain such Articles pursuant to Rule 15 of these Rules.

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(b) The notice required by this Rule shall be served on the Respondent in the manner

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required by Rule 4 of the West Virginia Rules of Civil Procedure. All process shall be served by

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the Sergeant at Arms of the Senate, unless otherwise ordered by the President of the Senate. A

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copy of the summons to the Respondent, upon its issuance, along with a copy of the Articles of

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Impeachment and a copy of these Rules, shall be provided by the Clerk of the Court of
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Impeachment to the Clerk of the West Virginia House of Delegates. Upon service of the same

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upon the Respondent, a copy of the return of service shall be provided by the Clerk of the Court

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of Impeachment to the Clerk of the West Virginia House of Delegates.

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13. Dismissal of Articles Upon Resignation of Respondent; Termination of Trial

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(a) Any Senator may move to dismiss the Articles of Impeachment against a Respondent

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if at any time before the presentation of evidence commences in his or her trial of impeachment

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the Respondent has resigned or retired from his or her public office. Upon motion of any Senator

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to dismiss the Articles pursuant to this Rule, all Senators not excused shall vote on the question

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of whether to dismiss the Articles against the Respondent. If a majority of Senators elected vote

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to dismiss the Articles against the Respondent, a judgment of dismissal shall be pronounced and

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entered upon the Journal of the Court of Impeachment or the Journal of the Senate, whichever is

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convened at the time such vote is taken.

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(b) A vote pursuant to this Rule shall be taken by yeas and nays.

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(c) Upon dismissal of the Articles of Impeachment against a Respondent pursuant to this

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Rule, all pre-trial and trial proceedings regarding said Respondent shall immediately cease.

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(d) If the House of Delegates adopts and communicates Articles of Impeachment that

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name more than one Respondent in one or more of the Articles, a dismissal pursuant to this Rule

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shall not dismiss the articles as to any Respondent who has not resigned or retired.

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14. Commencement of Trial; Answer to Articles of Impeachment

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At the time and date fixed and upon proof of service of the summons directed to the

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Respondent, the Respondent shall be called to answer the Articles of Impeachment. If the

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Respondent appears in person or by counsel, the appearance shall be recorded. If the

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Respondent does not appear, either personally or by counsel, then the failure of the Respondent

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to appear shall be recorded. While the Court of Impeachment is in session, the business of the

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Senate shall be suspended except as otherwise ordered by the President of the Senate.

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15. Failure of Respondent to Appear and Contest
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(a) If the Respondent fails to appear personally or by counsel without good cause at the

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time and date specified in the notice required by Rule 12 of these Rules, the allegations contained

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in the Articles of Impeachment shall be uncontested.

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(b) If the allegations contained in the Articles of Impeachment are determined to be

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uncontested under section (a) of this Rule, the Presiding Officer shall then call upon the Board of

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Managers to deliver a summary of the evidence of the allegations contained in such Articles.

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(c) After the summary of evidence delivered by the Managers, the Court of Impeachment

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shall vote on the question of whether to sustain one or more of the Articles of Impeachment in

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accordance with the requirements of Rule 31 of these Rules.

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16. Entry of Plea or Pleas; Procedures Based on Plea or Pleas

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If the Respondent appears and pleads not guilty to each article, the trial shall proceed. If

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the Respondent appears and pleads guilty to one or more articles, the Court of Impeachment

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shall immediately vote on the question of whether to sustain the Articles of Impeachment to which

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a plea of guilty has been entered in accordance with the requirements of Rule 31 of these Rules.

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17. Subpoenas

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A subpoena shall be issued by the Clerk of the Court of Impeachment for a witness on

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application of a party.

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18. Procedure in a Contested Matter

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(a) After preliminary motions are heard and decided, the Board of Managers or its counsel

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may make an opening statement. Following the opening statement by the Managers, the

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Respondent or his or her counsel may then make an opening statement.

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(b) The trial shall be a daily special order of business following the Third Order of Business

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of the Senate, unless otherwise ordered by the President of the Senate. When the hour shall

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arrive for the special order of business, the President of the Senate shall so announce. The

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Presiding Officer shall cause proclamation to be made, and the business of the trial shall proceed.

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The trial may be recessed or adjourned and continued from day to day, or to specific dates and
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times, by majority vote of the Senators present and voting. The adjournment of the trial shall not

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operate as an adjournment of the Senate, but upon such adjournment, the Senate shall resume.

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(c) After the presentation of all evidence to the Court of Impeachment, the Board of

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Managers shall present a closing argument, after which the Respondent shall present a closing

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argument. Following the Respondent’s closing argument, the Board of Managers may offer a

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rebuttal.

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(d) The Board of Managers shall have the burden of proof as to all factual allegations. The

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Presiding Officer shall direct the order of the presentation of evidence.

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19. Separate Trials of Multiple Respondents; Order of Trials

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(a) If the House of Delegates communicates Articles of Impeachment against more than
one Respondent, the Senate shall schedule and conduct a separate trial of each Respondent.
(b) The Presiding Officer, in consultation with the parties, shall determine the order in

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which multiple Respondents shall be tried.

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20. Witnesses

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(a) All witnesses shall be examined by the party producing them and shall be subject to

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cross-examination by the opposing party. Only one designee of each party may examine each

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witness. The Presiding Officer may permit redirect examination and recross-examination.

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(b) After completion of questioning by the parties, any Senator desiring to question a

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witness shall reduce his or her question to writing and present it to the Presiding Officer who shall

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pose the question to the witness without indicating the name of the Senator presenting the

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question. If objection to a Senator’s question is raised by a party, the objection shall be decided

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in the manner provided in Rule 23 of these Rules.

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(c) It shall not be in order for any Senator to directly question a witness.
21. Discovery Procedures

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(a) Within five days after service upon the Respondent of the Articles of Impeachment, the

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Respondent may request, and the Board of Managers shall disclose to the Respondent and make

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available for inspection, copy, or photograph, the following:

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(1) Any written or recorded statement of the Respondent in the Managers’ possession
which the Managers intend to introduce into evidence in their case-in-chief during the trial;

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(2) Any books, papers, documents, data, photographs, tangible objects, buildings or

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places, or copies of portions of such items in the Managers’ possession that the Managers intend

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to use in their case-in-chief as to one or more Articles of Impeachment;

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(3) A list of the persons the Board of Managers intends to call as witnesses in its case-inchief during the trial; and

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(4) A written summary of any expert testimony the Managers intend to use during their

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case-in-chief. Any summary provided must describe the witness’ opinions, the bases and reasons

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for the opinions, and the witness’s qualifications.

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(b) The Board of Managers shall make its response to the Respondent’s written requests
within 10 days of service of the requests.

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(c) If the Respondent makes a request pursuant to this Rule, he or she shall be required

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to provide the same information to the Managers, reciprocally, within 10 days following his or her

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request.

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(d) A copy of all requests pursuant to this section shall be provided to the Clerk. The parties

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shall provide to the Clerk, in a format or in formats directed by the Clerk, copies of all items

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disclosed pursuant to this Rule.

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(e) The Clerk may require parties to number or Bates stamp any trial exhibits or other

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information provided to the Clerk. The Clerk may hold a meeting with the parties to organize trial

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exhibits.

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22. Court Reporters; Transcripts

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(a) All proceedings shall be reported by an official court reporter or certified court reporter:

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Provided, That if the services of an official court reporter or certified court reporter are unavailable

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on one or more days of the trial, the proceedings shall be digitally recorded and copies of the

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recording made available to the parties.

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(b) Upon request of a party, the Presiding Officer, or any Senator, the Clerk shall provide

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a copy of the transcript of any portion of the trial, when such transcripts are available.

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23. Motions, Objections, and Procedural Questions

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(a) All motions, objections, and procedural questions made by the parties shall be

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addressed to the Presiding Officer, who shall decide the motion, objection, or procedural question:

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Provided, That a vote to overturn the Presiding Officer’s decision on any motion, objection, or

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procedural question shall be taken, without debate, on the demand of any Senator sustained by

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one tenth of the Senators present, and an affirmative vote of a majority of the Senators present

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and voting shall overturn the Presiding Officer’s decision on the motion, objection, or procedural

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question.

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(b) On the demand of any Senator or at the direction of the Presiding Officer, the movant

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shall reduce the motion to writing.

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24. Qualification to Sit as Court of Impeachment

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Every Senator is qualified to participate on the Court of Impeachment, unless he or she

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has been excused pursuant to Rule 43 of the Rules of the Senate, 2017.

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25. Members as Witnesses

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The parties may not call as witnesses, nor subpoena the personal records of, the

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Senators, members of the Board of Managers, personnel of the Court of Impeachment, the

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Presiding Officer, or counsel for the parties.

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26. Attendance of Members

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Every Senator is required to attend the trial unless he or she has been granted a leave of

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absence, pursuant to Rule 50 of the Rules of the Senate, 2017, or has been excused from voting
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on the Articles, pursuant to Rule 43 of the Rules of the Senate, 2017. Any Senator who has been

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granted a leave of absence shall be provided an opportunity to review the exhibits, video or audio

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recordings, and transcripts for the date or dates he or she is absent and may participate in the

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vote on verdict and judgment as provided in Rule 31 of these Rules.

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27. Notetaking

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Senators may take notes during the trial and such notes are not subject to the provisions

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of W. Va. Code §29B-1-1 et seq.

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28. Applicability of Rules of the Senate

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Except as otherwise provided herein, the Rules of the Senate shall apply to proceedings

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of the trial and the President of the Senate retains the authority to invoke such rules.

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29. Applicability of Rules of Evidence

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When not in conflict with these Rules or the Rules of the Senate, the Presiding Officer

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shall rule on the admissibility of evidence in accordance with West Virginia Rules of Evidence:

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Provided, That a vote to overturn the Presiding Officer’s ruling on the admissibility of evidence

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shall be taken, without debate, on demand of any Senator sustained by one tenth of the members

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present, and an affirmative vote of the majority of Senators present shall overturn the ruling.

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30. Instruction

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At any time, the Presiding Officer may, sua sponte, or on motion of a party or upon request

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of a Senator, instruct the Senators on procedural or legal matters.

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31. Verdict and Judgment

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(a) After closing arguments, the Court may enter into a Conference of Senators for

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deliberation. After conclusion of said conference and return to open proceedings, or pursuant to

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Rule 15 or Rule 16 of these Rules, all Senators not excused shall vote on the question of whether

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to sustain one or more Articles of Impeachment: Provided, That any vote of the Senators on the

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question of whether or not to sustain an Article of Impeachment shall decide only that Article, and

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no single vote of the Senate shall sustain more than one Article of Impeachment. The Presiding

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Officer shall have no vote in the verdict or judgment of the Court of Impeachment.

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(b) If two thirds of the Senators elected vote to sustain one or more Articles of

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Impeachment, a judgment of conviction and removal from office shall be pronounced and entered

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upon the Journal of the Court of Impeachment. If the Respondent is acquitted of any Article of

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Impeachment, a judgment of acquittal as to such Article or Articles shall be pronounced and

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entered upon the Journal.

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(c) If two thirds of the Senators elected vote to sustain one or more Article of Impeachment,

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a vote shall then be taken on the question of whether the Respondent shall also be disqualified

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to hold any office of honor, trust, or profit under the state. If two thirds of the Senators elected

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vote to disqualify, a judgment of disqualification to hold any office of honor, trust, or profit under

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the state shall be pronounced and entered upon the Journal of the Court of Impeachment.

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(d) Each vote pursuant to this Rule shall be taken by yeas and nays.

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(e) A copy of all judgments entered shall be deposited in the office of the Secretary of

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State.

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32. Conference of Senators

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(a) On motion of any Senator and by a vote of the majority of the members present and

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voting, there shall be an immediate Conference of Senators. No Senator or any other person may

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photograph, record, or broadcast a Conference of Senators. Any motion made pursuant to this

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Rule shall be nondebatable.

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(b) The President of the Senate, or his or her designee, shall preside over a Conference

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of Senators and the Rules of the Senate shall apply during said conference except as otherwise

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provided herein.

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33. Contempt; Powers of Presiding Officer

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The following powers shall be exercised by the Presiding Officer:

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(1) The power to compel the attendance of witnesses subpoenaed by the parties;
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(2) The power to enforce obedience to the Court’s orders;

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(3) The power to preserve order;

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(4) The power to punish contempt of the Court’s authority; and

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(5) The power to make all orders that may be necessary and that are not inconsistent with

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these Rules or the laws of this state.

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34. Prohibited Conduct; Sanctions

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The Court of Impeachment shall have the power to provide for its own safety and the

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undisturbed transaction of its business, as provided in Article VI, Section 26 of the Constitution of

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West Virginia.

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