RECEIVED

CLERK OF IH E Si~i)J~-­
IN THE WEST VIRGINIA SENATE

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IN THE MATTER OF IMPEACHMENT PROCEEDINGS AGAINST
RESPONDENT CHIEF JUSTICE MARGARET WORKMAN
Honorable Paul T. Farrell
Acting Justice of the
Supreme Court of Appeals of West Virginia
Presiding Officer
CHIEF JUSTICE WORKMAN'S MOTION TO DISMISS ARTICLE XIV(E)

Respondent Chief Justice Margaret Workman, by counsel, respectfully moves the
Presiding Officer for a ruling that Article XIV(E) be dismissed insofar as there was no evidence
before the House of Delegates from which that body could charge Respondent with
maladministration. Article XIV(E) alleges that Respondent failed "[t]o ,Provide effective
supervision and control over record keeping with respect to the use of state automobiles, which
has already resulted in an executed information upon one former [j]ustice and the indictment of
another [j]ustice." Art. XIV(E). But impeachment cannot lie for an honest, non-catastrophic
mistake, or for an official act or omission amounting to ordinary lack of care. Assuming,
arguendo, that Respondent' s official conduct rises to "maladministration," no evidence has been
produced that she specifically intended the alleged misconduct.
As an initial matter, Article XIV(E) is an attempt to hold Respondent accountable for other
justices' personal use of state cars, alleged to have been improper. To be sure, the Court's records
indicate that one justice frequently reserved state cars between January 2013 and September 2016
without providing a destination. See Transcript of House Judiciary Committee Proceeding
Regarding the Impeachment of West Virginia Supreme Court Justices ("Tr.") Vol. I 38:4-40:2;
see also Post Audit Div., Joint Comm. on Gov't and Fin. W. Va. Office of the Leg. Auditor,
Supreme Court of Appeals of West Virginia Report 7 (Apr. 16, 2018) [hereinafter Report].

 Evidence indicates that of that justice's total 212 reserved days, 148 days- 70 percent-had no
destination listed. See Tr. Vol. I 38:4-19; see also Report at 7.
Relatedly, another former justice, having obtained use of a Court car for commuting
purposes, allegedly used it to drive to personal golf outings in Virginia. Report at 3--4. During
those trips, that justice allegedly purchased gas with the state' s fuel card. See id. By its approval
of Article XIV(E), the House now seeks to assign to Respondent the other justices' alleged
misconduct.
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 officials to prevent them from
bankrupting the county through speculative investments. Of the accusations, the court remarked
that "[i]n a nutshell," the supervisors were alleged to have done "a shoddy job of minding the
store." !d. 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 official action; a failure which was willful, and
which evidenced a fixed purpose not to do what actual knowledge and the requirements of the law
declare he shall do." !d. at 674 (citation and internal quotation marks omitted). The Steiner court,

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 after conducting a thorough review of applicable caselaw, concluded that controlling precedent
had "engrafted a knowledge element to the required mental state." !d.
Consequently, "something more than neglect is necessary" to justify removal of a county
official 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 justified. !d. But where the alleged misconduct is instead "premised
on something the official 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 office." !d. 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
office 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 officers are
qualifiedly immune in their individual capacities "for discretionary acts, even if committed
negligently." W Va. State Police v. Hughes, 238 W.Va. 406, 411 , 796 S.E.2d 193, 198 (2017)
(citation and internal quotation marks omitted). Such immunity extends to all such officials,
except those who are "plainly incompetent or those who knowingly violate the law." !d. (citation
and internal quotation marks omitted).
The fatal defect here is that no evidence before the House remotely suggested that, while
the alleged misuse was ongoing, Respondent knew or should have known that two other justices
were using state vehicles for personal purposes. Rather, because Respondent' s car use was so
minimal, the evidence presented suggests that she had no knowledge of the scope of the fleet's
purpose or use. See Tr. Vol. I 64:1- 7.

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 Additionally, in contrast to the mammoth amount of evidence presented during the House
Judiciary Committee proceedings focusing on certain other justices' use of state vehicles, no
evidence was presented to show Respondent improperly used State cars for personal purposes. In
fact, the Legislative Auditor found "no issues" with Respondent's seven total vehicle reservations.
Id. at Vol. I 64:1 - 7.

WHEREFORE, Respondent respectfully requests that the Presiding Officer grant this
motion and dismiss Article XIV(E).

CHIEF JUSTICE MARGARET WORKMAN
By Counsel:

Benjamin L. Bai ey (WVSB #200)
bbailey@baileyglasser.com
Steven R. Ruby (WVSB #10752)
sruby@baileyglasser.com
Raymond S. Franks II (WVSB #6523)
rfranks@baileyglasser.com
Holly J. Wilson (WVSB #13060)
hwilson@baileyglasser.com
BAILEY & GLASSER LLP
209 Capitol Street
Charleston, WV 25301
T: 304-345-6555
F: 304-342-1110
Counsel for Respondent

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 IN THE WEST VIRGINIA SENATE
IN THE MATTER OF IMPEACHMENT PROCEEDINGS AGAINST
RESPONDENT CHIEF JUSTICE MARGARET WORKMAN
Honorable Paul T. Farrell
Acting Justice of the
Supreme Court of Appeals of West Virginia
Presiding Officer

CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of September, 2018, a true and correct copy of the
foregoing CHIEF JUSTICE WORKMAN'S MOTION TO DISMISS ARTICLE XIV(E) was
served by electronic mail and by depositing a true copy thereof in the United States mail, first
class, postage prepaid, in envelopes upon the following:

Honorable John Shott
Room 418M, Bldg. 1
1900 Kanawha Blvd. E.
Charleston, WV 25305

Honorable Ray Hollen
Room 224E, Bldg. 1
1900 Kanawha Blvd. E.
Charleston, WV 25305

Honorable Andrew Byrd
Room 151 R, Bldg. 1
1900 Kanawha Blvd. E.
Charleston, WV 25305

Honorable Rodney Miller
Room 150R, Bldg. 1
1900 Kanawha Blvd. E.
Charleston, WV 25305

Honorable Geoff Foster
Room 214E, Bldg. 1
1900 Kanawha Blvd. E.
Charleston, WV 25305

Benjamin L. B ley (WVSB #200)
Steven R. Ruby (WVSB #10752)