IN THE WEST VIRGINIA SENATE IN THE ER 0F IMPEACHMEN PROCEEDINGSAGAINST RESPONDENT CHIEF JUSTICE AJARGARET Honorable Paul T. Farrell Acting Justice of the Supreme Court of Appeals of West Virginia Presiding Of?cer CHIEF JUSTICE MOTION TO DISMISS ARTICLE IV AND ARTICLE VI AS LACKING EVIDENCE OF KNOWLEDGE OR INTENT Respondent Chief Justice Margaret Workman, by counsel, respectfully moves the Presiding Of?cer for a ruling that Article IV and Article VI be dismissed insofar as there was no evidence before the House of Delegates from which that body could charge Respondent with a knowing or intentional violation of the law. Article IV explicitly charges that Respondent ?did knowingly and intentionally act? to violate the law, that is, ?to overpay certain Senior Status Judges? in contravention of certain constitutional and statutory proscriptions. Article VI in effect charges the same mens rea, alleging that Respondent disregarded her oath of of?ce by authorizing the same payments. In either case, impeachment cannot lie for an honest, non-catastrophic mistake, or for an of?cial act or omission amounting to ordinary lack of care. No evidence has been produced that Respondent intended any violation. Examination of the evidence (or lack thereof) before the House is mandated in this impeachment by fundamental principles of fairness and due process. The case before the Senate against Respondent is conceptually indistinguishable from that against two county supervisors in Steiner v. Superior Court, 58 Cal. Rptr. 2d 668 (Cal. Ct. App. 1996). In Steiner, the district attorney instituted removal proceedings before the grand jury, which returned accusations that the supervisors failed to adequately oversee the treasurer and other of?cials to prevent them from bankrupting the county through speculative investments. Of the accusations, the court remarked that a nutshell,? the supervisors were alleged to have done ?a shoddy job of minding the store.? Id at 672. The court granted the supervisors? petitions for extraordinary relief and prohibited further proceedings, noting that although the removal threshold of ?willful misconduct? required only a volitional act or omission short of criminal intent, a mere neglect of duty was not enough. Rather, removal of either supervisor could only be predicated on ?a failure to discharge his duty with knowledge of the facts calling for of?cial action; a failure which was willful, and which evidenced a ?xed purpose not to do what actual knowledge and the requirements of the law declare he shall do.? Id. at 674 (citation and internal quotation marks omitted). The Steiner court, after conducting a thorough review of applicable caselaw, concluded that controlling precedent had ?engrafted a knowledge element to the required mental state.? Id. Consequently, ?something more than neglect is necessary? to justify removal of a county of?cial in California. Steiner, 58 Cal. Rptr. 2d at 675. Surely the same standard, or an even stricter one, applies to removal after impeachment of a member of West Virginia?s highest court. Where a justice has engaged in ?conduct that was otherwise criminal, conduct which was corrupt and malum in se,? then removal is justi?ed. Id. But where the alleged misconduct is instead ?premised on something the of?cial should have known,? then removal cannot lie: ?The procedure must be reserved for serious misconduct . . . that involves criminal behavior or, at least, a purposeful failure to carry out mandatory duties of of?ce.? Id. at 675-76; accord In re Kline Twp. Sch. Dirs., 44 A.2d 377, 379 (Pa. 1945) (?It is not for every breach of duty that directors may be removed from of?ce but only for the breach of those positive duties whose performance is commanded?). The concept is a familiar one in the context of civil liability, from which ordinary public of?cers are quali?edly immune in their individual capacities ?for discretionary acts, even if committed negligently.? W. Va. State Police v. Hughes, 238 W. Va. 406, 411, 796 193, 198 (2017) (citation and internal quotation marks omitted). Such immunity extends to all such of?cials, except those who are ?plainly incompetent or those who knowingly violate the law.? Id. (citation and internal quotation marks omitted). The requisite mental state is non-controversial and presumably undisputed, inhering as it does in the explicit and implicit allegations of Articles IV and VI. The fatal defect in this case is that no evidence before the House remotely suggested that Respondent had any knowledge that the appointment of senior judges might, down the line, contravene the prohibition found in West Virginia Code 51-9-10 that ?the per diem and retirement compensation? of such judges ?not exceed the salary of a sitting judge.? As an initial matter, inasmuch as the annual pension paid senior judges is tens of thousands of dollars less than the salary of a sitting judge, the prohibition would not be effective until months following the senior judge?s appointment. And the only evidence presented during the impeachment hearings revealed that the Court?s administrative personnel not the justices tracked the compensation paid. See Transcript of House Judiciary Committee Proceeding Regarding the Impeachment of West Virginia Supreme Court Justices at 1503-04 (testimony of Steven Canterbury that deputy administrators Kathleen Gross and Jennifer Singletary ?were involved with keeping track of this?). Indeed, as Mr. Canterbury testi?ed without dispute, ?none of the chief justices had anything to do with their payment at all, and I don?t think they ever gave it much of a thought.? Id. at 1505. Without evidence of malintent, there are insuf?cient grounds for removal. See Steiner, 58 Cal. Rptr. 2d at 676 (forecasting that adoption of mere negligence standard for removal ?would have ominous public policy permitting ouster of elected of?cials ?for getting a minus on their report cards?). WHEREFORE, Respondent respectfully requests that the Presiding Of?cer grant this motion and rule that Article IV and Article VI be dismissed for lack of suf?cient evidence before the House of Delegates of an impeachable offense, and in particular the essential element of knowledge or intent. CHIEF JUSTICE MARGARET WORKMAN By Counsel: 62% Benjamin L. Bailey (WVSB #200) bbailev??baibyglassemom Steven R. Ruby (WVSB #10752) Sl'LibyfriIbailevglassemom Raymond S. Franks II (WVSB #6523) rfrankst?lbaileyglassercom Holly J. Wilson (WVSB #13060) hwilson@bailevglasser.com BAILEY GLASSER LLP 209 Capitol Street Charleston, WV 25301 T: 304-345-6555 F: 304-342-1110 Counsel for Respondent IN THE WEST VIRGINIA SENATE IN THE AMT ER 0F IMPEACHMENT PROCEEDINGS AGAINST RESPONDENT CHIEF JUSTICE WORKJMAN Honorable Paul T. Farrell Acting Justice of the Supreme Court of Appeals of West Virginia Presiding Of?cer CERTIFICATE OF SERVICE I hereby certify that on this 21st day of September, 2018, a true and correct copy of the foregoing CHIEF JUSTICE MOTION TO DISMISS ARTICLE IV AND ARTICLE VI AS LACKING EVIDENCE OF KNOWLEDGE OR INTENT was served by electronic mail and by depositing a true copy thereof in the United States mail, ?rst class, postage prepaid, in envelopes upon the following: Honorable John Shott Honorable Ray Hollen Room 418M, Bldg. 1 Room 224E, Bldg. 1 1900 Kanawha Blvd. E. 1900 Kanawha Blvd. E. Charleston, WV 25305 Charleston, WV 25305 Honorable Andrew Honorable Rodney Miller Room 151R, Bldg. 1 Room 150R, Bldg. 1 1900 Kanawha Blvd. E. 1900 Kanawha Blvd. E. Charleston, WV 25305 Charleston, WV 25305 Honorable Geoff Foster Room 214E, Bldg. 1 1900 Kanawha Blvd. E. Charleston, WV 25 305 Benjamin L. #200) Steven R. Ruby (WVSB #10752)