IN THE SUPREME COURT OF APPEALS OF WEST VIRGI State of West Virginia ex rel. Margaret L. Workman, GAISER CI E PREME COURT OF OF WEST VIRGI EALS Petitioner, v. No. 18-0816 Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, Respondents. RESPONSE IN OPPOSITION TO PETITIONER'S REQUEST FOR STAY J. Mark Adkins (WVSB #7414) Floyd E. Boone Jr. (Wi/SB #8784) Richard R. Heath, Jr. (IFITSB #9067) Lara Brandfass (iVVSB #12962) Bowles Rice LLP 600 Quarrier Street Charleston, West Virginia 25301 Counsel for Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate 10482385.1 P A PEAL TABLE OF CONTENTS Introduction 1 Standard of Review 2 Argument 3 I. Petitioner's motion to stay— and her Petition itself— is an unconstitutional invitation to this Court to usurp powers exclusively delegated to the Legislature and must be rejected under the Political Question, Separation of Powers, and Checks and Balances doctrines A. B. II. B. C. CONCLUSION 10482385.1 The West Virginia Senate is the exclusive Court of Impeachment. 4 Petitioner's request for a stay is in violation of the Separation of Powers Clause. 6 Petitioner has failed to meet any cognizable standard for granting a stay. A. 3 11 Petitioner cannot make a strong showing that she is likely to succeed on the merits of her Petition. 12 Petitioner cannot show that she will be irreparably harmed absent a stay 12 Petitioner cannot show that issuance of a stay will not substantially injure the other parties to this matter and the public interest does not support issuance of a stay. 12 13 Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate (collectively the "West Virginia Senate" or "Respondents") respectfully submit this response to this Court's Order, issued on September 25, 2018, ordering the Respondents to file a response to Petitioner Margaret L. Workman's ("Petitioner") motion for a stay on or before September 27, 2018. See Order, September 21, 2018, attached as Exhibit A.' INTRODUCTION This Court must deny Petitioner's request for a stay because the Petition is an illegal and unconstitutional attempt to usurp authority that has been exclusively delegated to the West Virginia House of Delegates and West Virginia Senate by the Constitution of West Virginia. West Virginia's model of government— like that of the United States of America and the other 49 states— is a tripartite republican system defined by two fundamental principles: separation of powers and checks and balances. Here, the Petition is an illegal and unconstitutional invitation to this Court to violate the separation of powers by usurping the power of impeachment, which has been exclusively delegated to the Legislature by the Constitution of West Virginia, by ordering the West Virginia Senate to suspend impeachment proceedings pending against Petitioner in the West Virginia Senate? If this Court exercises jurisdiction over the Petition, it will provoke a constitutional crisis by effectively eliminating the Legislature's only check over the courts. 1 As noted below, it is important to note that Petitioner never actually filed a motion for a stay or briefed the elements that must be established to obtain a stay in her Petition. See infra II. Petitioner's impeachment trial is scheduled to begin on October 15, 2018. See Journal of the Senate Sitting for the Trial of the Various Justices of the Supreme Court of Appeals of the State of West Virginia, Upon Articles of Impeachment, Sept. 11, 2018, at 30, attached as Exhibit B. 2 10482385.1 In addition, even assuming this Court can consider the merits of a stay, it should refuse to grant a stay. It is axiomatic that a stay is an extraordinary remedy that should only be granted sparingly. In this case, this fundamental principle is even more important because Petitioner is asking this Court to prohibit the West Virginia Senate from exercising powers exclusively delegated to it by the Constitution of West Virginia. Despite the stakes presented by the Petition and the requested stay, however, Petitioner failed to file a separate motion seeking a stay. Moreover, she failed, in her Petition, to identify— or brief— the elements that are prerequisites to a stay.' The reason is simple: Petitioner cannot establish the elements necessary to obtain a stay. STANDARD OF REVIEW When considering whether to stay underlying proceedings, appellate courts traditionally apply a legal standard that considers four factors. See Nken v. Holder, 556 U.S. 418, 434 (2009). The factors typically considered by appellate courts are: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure other parties interested in the proceeding, and (4) where the public interest lies. Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). As explained below, Petitioner's request for a stay must be denied because this Court lacks jurisdiction over the Petition itself. Because this Court lacks jurisdiction over the Petition, it is inescapable that the Respondents will succeed on the merits. Nor can Petitioner establish that she will be irreparably harmed without a stay, given that the West Virginia Senate is exercising the authority 3 Rule 29 of the Rules of Appellate Procedure requires that any such motion, to stay or otherwise, shall "state with particularitythe grounds on which it is based." expressly granted to it under the Impeachment Clause. With respect to the third and fourth elements, the issuance of a stay would provoke a constitutional crisis and harm the people of West Virginia by depriving the Legislature of powers exclusively delegated to it by the Constitution of West Virginia. ARGUMENT I. Petitioner's motion to stay—and her Petition itself—is an unconstitutional invitation to this Court to usurp powers exclusively delegated to the Legislature and must be rejected under the Political Question, Separation of Powers, and Checks and Balances doctrines. No court has ever intervened in an impeachment proceeding against a judicial officer that was currently pending before a legislative body serving as a constitutionally authorized court of impeachment. To the contrary, the United States Supreme Court and federal and state courts consistently hold that impeachment proceedings before a duly authorized legislative body are nonjusticiable. See Nixon v. U.S., 506 U.S. 224, 238 (1993) (rejecting a federal judge's procedural challenge to impeachment proceedings where the Senate had the sole discretion to choose such procedures); Larsen v. Senate of Penniylvania, 166 Pa. Cmwlth. 472, 491 (1994) (refusing to enjoin ongoing impeachment proceedings against a former state supreme court justice because the issues raised were "within the exclusive power of the Senate ... and cannot be invaded by the courts"); In re Judicial Conduct Committee, 145 N.H. 108, 113 (2000) (finding specific issues raised by the New Hampshire Supreme Court's Committee on Judicial Conduct to be nonjusticiable given the state house of representatives' "extensive"... authority "to conduct impeachment proceedings without interference from the judicial branch"); Mecham v. Gordon, 156 Ariz. 297, 302 (1988) (refusing to usurp the Senate's prerogative over pending impeachment proceedings because the separation of powers principle prohibits such intervention in the legislative process). Consequently, this Court should deny Petitioner's request for a stay. 3 A. The West Virginia Senate is the exclusive Court of Impeachment. One of the critical factors for determining whether a matter is nonjusticiable, or involves a political question, is whether "there is 'a textually demonstrable constitutional commitment of the issue to a coordinate political department.'" Nixon, 506 U.S. at 228 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). As is the case with the United States Constitution, and most state constitutions, the issue of impeachment under the Constitution of West Virginia is textually and demonstrably committed to one political department— the West Virginia Legislature. The Respondents' authority over Petitioner's impeachment proceedings is unquestionable and exclusive. Specifically, Article IV, Section 9 of the Constitution of West Virginia provides that: Any officer of the State may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor. The House of Delegates shall have the sole power of impeachment. The Senate shall have the sole power to try impeachments... . W. VA. CONST. art. IV, § 9 (emphasis added). As such, Respondents respectfully note that this Court has no purview to issue a stay in the impeachment proceedings currently pending before the West Virginia Senate. This proposition is overwhelmingly supported by the weight of existing case law. The United States Supreme Court definitively held in Nixon v. U.S. that review of the United States Senate's impeachment trial of a federal district judge was not "a claim that may be resolved by the courts." 506 U.S. at 226. The Court specifically noted that "[j]udicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the 'important constitutional check' placed on the Judiciary by the Framers." Id. at 235 (internal quotations omitted). In concurring with the majority opinion, Justice Stevens wrote that 4 the Court's decision not to interfere with the impeachment proceedings in question was a "wise policy of judicial restraint," given the "central fact that the Framers decided to assign the impeachment power to the Legislative Branch." Id. at 238. (emphasis added). The Commonwealth Court of Pennsylvania also refused to enjoin Senate impeachment proceedings against a former state supreme court justice in Larsen by finding that the issues raised were "within the exclusive power of the Senate to conduct impeachment trial proceedings and cannot be invaded by the courts." 166 Pa. Cmwlth. at 491 (emphasis added). Importantly, the Court recognized a distinction between the significantly different justiciable characteristics of examining completed legislative action— such as an impeachment proceeding that had concluded— and the Court's potential involvement in a pending impeachment proceeding, which involves a unique and unprecedented attempt to "exercise a prior restraint" upon the Senate's exclusive authority to serve as a court of impeachment. Id. at 484-85. The Court's ruling was consistent with the Pennsylvania Supreme Court's previous holding in Dauphin County Grand Jug Investigation Proceeding (No. 2), 332 Pa. 342, 2 A.2d 802 (1938), where the highest court in Pennsylvania vacated a trial court order because "the court had no power to engage in such a direct interference with the impeachment function of the legislature." Larsen, 166 Pa. Cmwlth. at 482. Likewise, in Mecham v. Gordon, the Supreme Court of Arizona refused a request by the Governor to delay his impeachment trial before the State Senate. In doing so, the Court held that it had no jurisdiction to issue an injunction against the Arizona Senate, as the state's constitution clearly expressed "the intention that no other tribunal should have any jurisdiction" over such impeachment matters. Mecham, 156 Ariz. at 301 (quoting Ritter v. United States, 84 Ct. Cl. 293, 296 (1936), cert. denied, 300 U.S. 668 (1937)). 5 Finally, the Supreme Court of New Hampshire similarly ruled that the specific issues raised by its Committee on Judicial Conduct in an ongoing judicial impeachment proceeding were nonjusticiable. See In re Judicial Conduct Committee, 145 N.H. 108, 113 (2000). In declining to require the House Judiciary Committee to conduct its impeachment proceedings in a certain manner, the Supreme Court of New Hampshire determined that the impeachment of judges was "demonstrably committed to the legislative branch." Id. at 112-13. The Court concluded that "[t]he constitutional authority ... to conduct impeachment proceedings without interference from the judicial branch is extensive ... ." Id. at 113 (emphasis added). By denying Petitioner's request for a stay, this Court would be exercising proper judicial restraint in a manner that is consistent with the United States Supreme Court's decision in Nixon, as well as the numerous other state court decisions refusing to delve into such political questions which have clearly been delegated to the legislative branch and the legislative branch alone. There is simply no precedent for permitting a court to interfere with the role exclusively granted to another branch of government. As such, Petitioner's request for a stay should be denied. B. Petitioner's request for a stay is in violation of the Separation of Powers Clause. One of the Constitution of West Virginia's most fundamental provisions is the Separation of Powers Clause. Indeed, the separation of powers principle is a defining hallmark of a republican system of government and, as such, is an inviolate component of the Constitution of the United States and the constitutions of West Virginia's sister states! The Separation of Powers Clause provides that: 4 See also US. CONST. art. IV, S 4 (providing that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government."). 6 The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature. W. VA. CONST. art. V, § 1. By requesting a stay of the impeachment proceedings currently pending before the West Virginia Senate, Petitioner seeks to short-circuit the constitutionally prescribed process for the removal of public officers. As the Supreme Court of Texas explained: In the matter of impeachment the House acts somewhat in the capacity of a grand jury. It investigates, hears witnesses, and determines whether or not there is sufficient ground to justify the presentment of charges, and, if so, it adopts appropriate articles and prefers them before the Senate ... During the trial the Senate sits 'as a court of impeachment,' and at its conclusion renders a 'judgment?... The Senate sitting in an impeachment trial is just as truly a court as is this court. Ferguson v. Maddox, 114 Tex. 85, 94 (1924). The West Virginia House of Delegates exercised its "sole power of impeachment" pursuant to Article IV, Section 9 of the Constitution of West Virginia by investigating charges of misconduct, hearing witnesses and ultimately approving articles of impeachment against Petitioner. Consequently, it is now the sole responsibility of the West Virginia Senate to try the impeachment of Petitioner. See W. VA. CONST. art. IV, S 9. It is the Senate's responsibility to weigh the evidence presented and ultimately render a judgment as the Court of Impeachment. The jurisdiction of the Senate, sitting as the Court of Impeachment, "is very limited, but such as it has is of the highest. It is original, exclusive, and final. Within the scope of its constitutional authority, no one may gainsay its judgment." Ferguson, 114 Tex. at 94. (emphasis added). Petitioner's request to stay 7 proceedings in the Senate would effectively and improperly circumvent the constitutionally mandated impeachment process set forth in Article IV, Section 9. Petitioner fundamentally seeks to have this Court sit in judgment of the validity of actions taken by the House of Delegates and actions not yet taken by the West Virginia Senate. Such a proposition is constitutionally unacceptable. As noted by Justice Farrell in his role of Presiding Officer in the Court of Impeachment, impeachment is "a uniquely legislative and political function. It is not Judicial." Mecham, 156 Ariz. at 302.5 In debating where to vest the impeachment powers of our U.S. Constitution, the Framers: rejected any proposal that the articles of impeachment adopted by the house of representatives would be tried by the judicial branch of government and deliberately selected the senate as the tribunal to try impeachment charges. Mecham, 156 Ariz. at 301 (citing The Federalist, No. 65; also citing J. Madison, The Debates in The Federal Convention of 1787 Which Framed the Constitution of the United States of America 279, 429, 449, 472, 535, 537, 561 (International Ed. 1970) (most complete record of the genesis of the federal Constitution's impeachment provisions) (emphasis added). Moreover, the U.S. Supreme Court made the very same point in the Nixon case. See Nixon, 506 U.S. at 233-34. In our constitutional system of checks and balances, it is critical to note that "impeachment was designed to be the only check on the Judicial Branch by the Legislature." Nixon, 506 U.S. at 235. This Court previously affirmed that, under the Constitution of West Virginia," only the Legislature has the power to remove a ... judge from office, and it may do so only by impeachment." 5 In denying Petitioner's motion for a bill of particulars in the Court of Impeachment, Justice Farrell, acting as the Presiding Officer of the Court of Impeachment, noted that "a Bill of Particulars was a criminal type motion and this was not a criminal trial." See Exhibit B at p. 32. 8 In re Watkins, 233 W. Va. 170, 174, 757 S.E.2d 594, 598 (2013). In reviewing the scope of judicial disciplinary proceedings, this Court further opined that "[t]he separation of powers doctrine implies that each branch of government has inherent power to 'keep its own house in order,'• absent a specific grant of power to another branch, such as the power to impeach." Id. at 177, 757 S.E.2d at 601. (quoting James Duke Cameron, "The Inherent Power of a State's Highest Court to Discipline the Judiciary," 54 Chicago Kent L. Rev. 45, 49 (1977)). Ultimately, the removal of public officers and, more specifically, judicial officers, is unquestionably delegated only to the West Virginia Legislature. This Court has previously held that, under the Separation of Powers Clause set forth in Article V, Section 1 of the Constitution of West Virginia, "courts have no authority— by mandamus, prohibition, contempt or otherwise— to interfere with the proceedings of either house of the Legislature." Syl. Pt. 3, State ex rel. Holmes v. Clawges, 226 W. Va. 479, 702 S.E.2d 611 (2010). In fact, the principle of separation of powers is so sacrosanct that this Court further warned, in Holmes, that "[o]ne branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." See id. at 485, 702 S.E.2d at 617 (quoting Union Pac. R. Co. v. U.S., 99 U.S. 700, 718 (1878)) (emphasis added). For these reasons, Petitioner's request for a stay of the impeachment proceedings currently pending in the West Virginia Senate is wholly inappropriate and unconstitutional. West Virginia's Separation of Powers doctrine "is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed." Syl. Pt. 1, State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981) (emphasis added). By asking this Court to intervene in this matter, Petitioner ultimately seeks to violate the clearly delineated separation of powers established by both the United States and West Virginia constitutions. Such a proposition is both illogical and unlawful and should be summarily denied so as to avoid further harm to West Virginia's constitutional framework 9 Finally, it is also worth noting that many of the arguments proffered by Petitioner have been raised or are currently being raised before the West Virginia Senate sitting as the Court of Impeachment. For example, Petitioner alleges that the Legislature "failed to afford the Petitioner notice of the claims asserted against her." See Pet. at 26. However, this argument was already raised by Petitioner in the Court of Impeachment and rejected by the Presiding Officer.6 Specifically, on September 10, 2018, Petitioner filed a "Motion for a Bill of Particulars" with the Court of Impeachment, in which she argued that the lack of a bill of particulars deprives her of sufficient information regarding the charges against her in violation of her due process rights. See Respondent's Motion for a Bill of Particulars, attached as Exhibit C. Justice Farrell, acting as the Presiding Officer of the Court of Impeachment, denied Petitioner's request, noting that "a Bill of Particulars was a criminal type motion and this was not a criminal trial." See Exhibit B at p. 32. Furthermore, on September 21, 2018, Counsel for Petitioner filed more than a dozen other motions with the West Virginia Senate, sitting as the duly recognized Court of Impeachment. See Letter to Senate Clerk, Sep. 21, 2018, attached as Exhibit D.7 Those include a variety of motions to dismiss, a motion for a more definite statement, a motion for a continuance and, perhaps, most Under the Constitution of West Virginia, this Court should exercise judicial restraint and avoid deciding the issues raised in the Petition. As noted above, the Framers of the Constitution of West Virginia vested the power of impeachment in the Legislature. According to the U.S. Supreme Court in Nixon, "judicial review would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature." Nixon, 506 U.S. at 234-35 (emphasis in original). Moreover, the Nixon Court held that "[j]udicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the 'important constitutional check' placed on the Judiciary by the Framers." Id at 235. Lastly, as Justice Neely wrote in dissent in In re Dostert, 174 W. Va. 258, 324 S.E.2d 402 (1984), "Nemo debet judex in propria causa." The same principle applies to any efforts by the judicial branch to review impeachment proceedings involving the judicial branch. 6 7 Coincidentally, Petitioner has sought to disqualify Justice Farrell from participating in the judgment of this matter while the very same motions are pending before him as the Presiding Officer of the Court of Impeachment. See Motion for Disqualification, attached as Exhibit E. 10 importantly, a "Motion to Dismiss on Grounds Stated in Petition for Writ of Mandamus." See Motion to Dismiss - Grounds Stated in Petition for Writ of Mandamus, attached as Exhibit F. Because the issues raised by Petitioner are already before the West Virginia Senate, it would be inappropriate and premature for this Court to interject itself into the ongoing impeachment proceedings.' Therefore, Petitioner's request for a stay and her Petition, as a whole, should be denied. II. Petitioner has failed to meet any cognizable standard for granting a stay. It is axiomatic that a stay is an extraordinary remedy that should only be granted sparingly. See, e.g., Heckler v. Turner, 468 U.S. 1305 (1984) (Rehnquist, J., in chambers); Ruckelshaus v. Monsanto Co., 463 U.S. 1315 (1983) (Blackmun, J., in chambers). The stay requested by Petitioner is even more extraordinary in that she asks this Court to halt the proceedings of a coordinate branch of government. Nevertheless, it is remarkable that Petitioner failed to file a separate motion seeking a stay and failed to brief the elements of stay relief in her Petition. Indeed, Rule 29 of the Rules of Appellate Procedure of this Court mandates that any motion, to stay or otherwise, shall "state with particularity the grounds on which it is based." Petitioner's failure to file a motion or argue the elements that are prerequisites to a stay should doom her request for a stay. Moreover, as noted below, Petitioner cannot satisfy the four elements that are necessary to obtain a stay. Petitioner's request is akin to asking a court to rule upon the validity of legislation that has only been considered by one chamber of the legislative branch. As Justice Starcher noted when this Court was asked to intervene in a constitutional dispute between the Legislature and the Governor, "this Court should not be interfering with the orderly operation of the Legislative and Executive branches of government by taking preemptive action with respect to potential legislation." See Order, Sept. 9, 2005, attached as Exhibit G. 8 11 A. Petitioner cannot make a strong showing that she is likely to succeed on the merits of her Petition. As noted above, the overwhelming weight of authority establishes that issues implicating impeachment are within the exclusive jurisdiction of the legislative branch and are nonjusticiable. Apart from justiciability, Petitioner's arguments are overwhelmingly based on the misguided notion that an impeachment trial is a criminal matter, and that the judicial standards developed in regard to criminal cases apply to her impeachment trial. Justice Farrell, acting as the Presiding Officer of the Court of Impeachment, has already rejected this notion. Moreover, the U.S. Supreme Court in Nixon established that impeachment is a political matter that is ill-suited and beyond the jurisdiction of the judicial branch. B. Petitioner cannot show that she will be irreparably harmed absent a stay. Nor has Petitioner shown that she will be irreparably harmed by the absence of the stay. Petitioner only generally cites the pendency of her impeachment trial in the West Virginia Senate, which is currently slated for October 15, 2018. As discussed in detail above, the issues raised by Petitioner in her Petition are currently pending before the West Virginia Senate sitting as the Court of Impeachment.9 As such, Petitioner's only harm, absent a stay, would be that the Senate, and not this Court, would adjudicate the claims she is raising. C. Petitioner cannot show that issuance of a stay will not substantially injure the other parties to this matter, and the public interest does not support issuance of a stay. Petitioner's failure on the first two factors alone suffices for denial of her request for a stay, as "the first two factors of the traditional standard are the most critical." N ken, 556 U.S. at 434. In fact, Petitioner filed with the Senate a "Motion for Continuance," which is currently pending before the Court of Impeachment. See Chief Justice Workman's Motion for Continuance, attached as Exhibit H. 9 12 However, Petitioner fails on the remaining two factors as well. With respect to whether the issuance of a stay will substantially injure other parties interested in the proceeding, it is worth noting that Justice Beth Walker' has respectfully requested that this Court not issue a stay affecting her impeachment trial. See Justice Walker's Response to Request for Stay, Sept. 26, 2018, attached as Exhibit I. With respect to the fourth and final factor, it is also in the public interest for this Court to deny Petitioner's request for a stay. As explained in great detail herein, Petitioner's case raises serious constitutional questions regarding the separation of powers and checks and balances doctrines, and the request to have this Court stay proceedings currently before the West Virginia Senate sitting as a Court of Impeachment threatens to intrude upon the exclusive constitutional powers of the Senate "to try impeachments." W. VA. CONST. art. IV, 9. In effect, Petitioner's request for a stay seeks to divest the Senate of its constitutional authority— and eliminate the only check it has with respect to the judicial branch— and threatens to provoke a constitutional crisis. See Nixon, 506 U.S. at 234-235 (nothing that impeachment is the legislature's only check with respect to the judicial branch). It is in the interest of the public, the Senate and this Court that such a crisis be avoided. Consequently, Petitioner's request for a stay should be denied. CONCLUSION For the foregoing reasons, Respondents Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the 10 Justice Walker is a party to the impeachment proceedings that are the subject of this case, and her trial is scheduled to begin before the West Virginia Senate sitting as the Court of Impeachment on October 1, 2018. See Exhibit B at 30. 13 West Virginia Senate respectfully request this Court deny Petitioner's request for a stay and avert a constitutional crisis. Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate By Counsel ALAI r Adkins VI/SB - 7414) Flb d E. Boone Jr. (117VSB #8784) hard R. Heath, Jr. (11 VSB #9067) /am Brandfass (1FVSB #12962) 3OWLES RICE LLP 600 Quarrier Street Post Office Box 1386 Charleston, West Virginia 25325-1386 (304) 347-1100 14 STATE OF WEST VIRGINIA At a Regular Term of the Supreme Court of Appeals, continued and held at Charleston, Kanawha County, on September 25, 2018, the following order was made and entered: State of West Virginia ex rel. Margaret L. Workman, Petitioner vs.) No. 18-0816 Mitch Carmichael, President of the. West Virginia Senate; Donna J, 13oley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, Respondents Order On September 21, 2018, came the petitioner, Margaret L. Workman, by counsel Marc E, Williams, Melissa Foster Bird, Thomas M. Hancock, and Christopher D. Smith, and presented to the Court her petition praying for a writ of mandamus, together with a motion for stay, to be directed against the respondents, Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, as therein set forth. It is hereby ordered that the respondents file a response to the motion for stay on or before September 27, 2018, by 4:00 p.m. Justice Allen H. Loughry II, suspended and therefore not participating. Justice Paul T. Farrell sitting by temporary assignment. EXHIBIT A Chief Justice Margaret L. Workman, Justice Elizabeth D. Walker, and Justice Paul T, Farrell disqualified, Acting Chief Justice James A. Matish, Judge Ronald E. Wilson, Judge Louis H. Bloom, Judge Rudolph J. Murensky II, and Judge Jacob E. Reger sitting by temporary assignment. A True Copy Attest: /s/ Edythe Nash Gaiser Clerk of Court JOURNAL OF THE SENATE SITTING FOR THE TRIAL OF THE VARIOUS JUSTICES OF THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA, UPON ARTICLES OF IMPEACHMENT TUESDAY, SEPTEMBER 11, 2018 THE STATE OF WEST VIRGINIA VS THE VARIOUS JUSTICES OF THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA The Senate, sitting as a Court of Impeachment to consider proceedings against Robin Jean Davis, Retired Justice of the Supreme Court of Appeals of the State of West Virginia; Allen H. Loughry II, Justice of the Supreme Court of Appeals of the State of West Virginia; Elizabeth D. Walker, Justice of the Supreme Court of Appeals of the State of West Virginia; and Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia. Upon direction of the President of the Senate, the oath was administered to the Honorable Paul T. Farrell, Acting Chief Justice of the Supreme Court of Appeals of the State of West Virginia, by the Honorable Lee Cassis, Clerk of the West Virginia Senate. The Acting Chief Justice of the Supreme Court of Appeals of the State of West Virginia assumed the chair and directed the Honorable Lee Cassis, Clerk of the West Virginia Senate, to administer the oath to the following members of the West Virginia Senate: First Senatorial District: Ryan J. Ferns of the County of Ohio; First Senatorial District: Ryan W. Weld of the County of Brooke; Second Senatorial District: Michael J. Maroney of the County of Marshall; EXHIBIT 2 JOURNAL OF THE SENATE [September 11 Second Senatorial District: Charles H. Clements of the County of Wetzel; Third Senatorial District: Donna J. Boley of the County of Pleasants; Third Senatorial District: Michael T. Azinger of the County of Wood; Fourth Senatorial District: Mitch Carmichael of the County of Jackson; Fourth Senatorial District: Mark A. Drennan of the County of Putnam; Fifth Senatorial District: Robert H. Plymale of the County of Wayne; Fifth Senatorial District: Michael A. Woelfel of the County of Cabell; Sixth Senatorial District: Mark R. Maynard of the County of Wayne; Sixth Senatorial District: Chandler Swope of the County of Mercer; Seventh Senatorial District: Ron Stollings of the County of Boone; Seventh Senatorial District: Richard N. Ojeda II of the County of Logan; Eighth Senatorial District: C. Edward Gaunch of the County of Kanawha; Eighth Senatorial District: Glenn D. Jeffries of the County of Putnam; Ninth Senatorial District: Sue Cline of the County of Wyoming; Ninth Senatorial District: Lynne Carden Arvon of the County of Raleigh; Tenth Senatorial District: Kenny Mann of the County of Monroe; Tenth Senatorial District: Stephen Baldwin of the County of Greenbrier; Eleventh Senatorial District: Robert Karnes of the County of Upshur; Eleventh Senatorial District: Gregory L. Boso of the County of Nicholas; Twelfth Senatorial District: Douglas E. Facemire of the County of Braxton; Twelfth Senatorial District: Michael J. Romano of the County of Harrison; Thirteenth Senatorial District: Roman W. Prezioso, Jr. of the County of Marion; Thirteenth Senatorial District: Robert D. Beach of the County of Monongalia; Fourteenth Senatorial District: Dave Sypolt of the County of Preston; Fourteenth Senatorial District: Randy E. Smith of the County of Tucker; 2018] JOURNAL OF THE SENATE 3 Fifteenth Senatorial District: Craig Blair of the County of Berkeley; Fifteenth Senatorial District: Charles S. Trump IV of the County of Morgan; Sixteenth Senatorial District: John R. Unger II of the County of Berkeley; Sixteenth Senatorial District: Patricia Puertas Rucker of the County of Jefferson; Seventeenth Senatorial District: Corey Palumbo of the County of Kanawha; Seventeenth Senatorial District: Tom Takubo of the County of Kanawha. The Presiding Officer then announced that the oath having been administered to all the Senate members present, the Senate was now organized as a Court of Impeachment to consider proceedings against the various justices of the Supreme Court of Appeals of the State of West Virginia, and directed the Sergeant at Arms to make the following proclamation: All persons are commanded to keep silence, on pain of Imprisonment, while the Senate Is sitting as a Court of Impeachment. •The Presiding Officer then announced that summonses had been issued against and served upon each of the Respondents; that returns of service were made for the same; and that the summonses and returns are available for review. The Presiding Officer then directed the Sergeant at Arms to summon the Managers, attorneys, and respondents. The Managers, appointed by the House of Delegates to conduct the trial of Impeachment of the various justices of the Supreme Court of Appeals of the State of West Virginia, to wit: Delegates Shott, Hollen, Byrd, and Miller (Delegate Foster, one of the said managers, being absent) entered the Senate Chamber and took the seats assigned them. Brian Casto, Marsha Kaufmann, and Joe Altizer, counsel for the Managers of the House of Delegates, accompanied said Managers. Respondent Allen H. Loughry II, Justice of the Supreme Court of Appeals of the State of West Virginia, and the respondents' counsel entered the Senate Chamber and took the seats assigned them. The Presiding Officer recognized John H. Shott, Chair of the Managers appointed by the House of Delegates, for a presentation concerning an agreement between the Managers and Elizabeth D. Walker, Justice of the Supreme Court of Appeals of the State of West Virginia, and Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia. - The Presiding Officer then recognized Andrew D. Byrd, one of the Managers appointed by the House of Delegates, to read the Stipulation and Agreement of the Parties. JOURNAL OF THE SENATE 4 [September 11 IN THE WEST VIRGINIA SENATE THE MATTER OF IMPRACIIIIIENT PROCEEDINGS AGAINST _RESPONDENTS CHIEF JUSTICE 11141n4RET WORKMAN AND JUSTICE EL12411472% MILKER tionorable.Paul Farrell Acting 4st1de ofthe Supreme Court-orAppeaotWestifirgitila Presiding Officer ..STIPVLNPIgNiN$11).AGREE.MUNT 1414TIES • Respondents *Chief justice; Margaret t. Worlunan -and hake Elizabeth D. Walker (the "Respondents"), together with the Board.of Managers of the-Went Virginia lieaSe of Delegates for the impeaoltment trials pending in the - West Virginia Senate (the "Ilotull of Managers"), jointly agree and sttpulatens.f011ows: 1, • Tie Respondents: aelatowl edge indefensible:spendinOythe:$11Prome Court of Appettla ofWest-Viggi hitt (the "CoatrVay well .45 OA ahsonee:ofOoint.pollelea 0,itcipreetleas thatik*-wottid haVepf,Mrentad thatithdraf enalhie spending.• 2, TilespOnclents *opt ibliresponsibility'for •al I apendi4dritcriOVittiolvtillheir personal offices. ovetWitleh•they exereisotl Or tdiaird haw 6wicii6od-spbildikit,o'veullghtand approval. 3. The Respondents acknowledge the need for changed polklicslind *notices to correct the failures identified In Artlele XIV of the Articles of Itripetallunont and rebuild•pnlifie trust in the Court. 4. The Respondents have begun and will continue to -implementlefomos to improve the administration pf the Court and,preventilattre inappropriate expendlturea, and to ensure compliance with nil applicable-Jaws and regulations governing thacondact oftlic.Coort, JOURNAL OF THE SENATE 2018] 5 The:Respondents and the :Board afMtnagararofogreot 5. a.Sointlyroccontentl--thatAhe-Sfentite:adOpt-a resolnlion of eem. ure with respect to the Reapondents,; Web. Ia inoluded:wlth•thia Stirkulatiori and Agreement of Parties; and h., 'Upon passage of such Tesointion of eensare, jointly move to dismiss:the Articles of Impeachment with respect to -the Respondents. The:12.esponclents and-the Bourd Of -Managers further:agree.thet the Senate does not dismiss the'Artieles of Impeachment witivrespeetto to:1;00011am% rio part of this StitlatiotrandAgreement:Of Perlios merbe used-in any trial:of•the Agreed to by; Dated; on, John Shott Poe Board of Managers Dated; 4.1 Tffe, ;Androw,D, FOr: Board Of:Ivianagers Tb ft — argaret L. 0 'Then th-'1(.1ttg_ The Hot V117, both D. Welker es or rwoaeblnont. 6 JOURNAL OF THE SENATE [September 11 AWAIT RFISOIAJTION • Publicly .reprimandinaand censuring Chief justiee.Margaret L Workman and Justice ]lizabeth,D. ;Val ker o.f thciSupreme Court OfAppetils.olVest 'Whereas, Chief justice Margaret Wofkinan was named in Articles Wand VI of Articles of Impeachment, Which allege,- overpaymenVolIsenlotstattislUdges; WhereaS,.chlefInstiee WOtkmatanititgliN WIlikerVeMnalpetlInArtiOle.or TnipetmhmenXlV winch alleges that tim Justices'of l&StipterrieCourfr of.Apptals generally and cidllativ4T01104.;tDproVide .or..-iprepare'polielcs.,anclreaSonableattpervisory.oVer4ht,of the, operations of tht.Cottit and hi the absen of Welt pnlieles.aktoverstglit„.wasta 8tataInnds•ul, wincoessary renoyalopN.tgivvi,- oomput%wfor. homq use,„Itniches,...and the iiiamingefrpersonal hen mid;. Whereas, thellouse:OriMegates.:Ilso:•atiopted.:FlOuseRes- igill100,93 Cells-144 all bensitting Justices related to-theirconduct eoncerning,,atriong.other filingsi the spend ing'on their personal Offices; Whereas, Chief Justice Workman. and Justice Walkerhave accepted MIresponsibility for Al I:Mending- on renoVations to their personal offices over which they exercised ot:shOuld've. exercised spending oversight and approval; Whereas; chief JUStiee Workman and Wtijkot btliiogo.Stkialypn0 publicly iteknewletigedindetenalhio spending brthe-Obarlaucl.the:absenee;OrapproprialvipolMes -andt • practices ilygjikoly.10:44t 00.bittathalKdafen$WispOntlif4 Whereasi Chief Justice WMIOrtart and bike Walker have NillqVgarlOYINg01.11* 1100d ;fox 64404.0Ni-06 and prOtic-eff 10:.rebOikl-p01W,-te01:111.0* CON • Whmeas, Chief ;414k,e,-Workmap:40,1titio6 Milk& have begun implement reforms - to Improve ,the administration :of the Court .iuldpivvent-fitturelnappropriate expenditures and to *ensure compliance with all applicable laws and regulatlo as. governing-mc conduct of the Court; Whereas, Justice Walkerhaszo.t:.served as Chief Justice over the Court or:Judicial aranen lathe time Mat she ha0Orved, Op.OQ $uprenw Court Appeckw Where* Chi of Justree:.Woltnyttimti.JostiWAktillor supportincreased regthlative ovOrsight„transparehey, tgattqcotintabillty df,the Supitinie COurf Whereas,..Chier JusticaWintmall ma:justice Waller-neepaperannalrand: institutional. responsibility fof thc‘fAititt'v failure :to enact CattiiII*06ifi0011-0i6§:r4j deacribettin ArticleXIV litthe Articles obmpeachrnpii; thorautie,.b0,11: 2018] JOURNAL OF THE SENATE Resolved by flie.Sendte: That ChiefJustice Workmatiand Justice Walker he herehypublicirrepritnandod.and oensured for and because-of the: 09rementioned Ondget,:and be, it Further knave, 'that the: Cierldsthoreby. d 'reefed to forward a oopy of this resolution to Chief Justice Workman' and lu,itice Walker; 7 8 JOURNAL OF THE SENATE [September 11 Delegate Byrd then presented the Stipulation and Agreement of the Parties document to the Clerk of the Senate. The Presiding Officer then recognized Ben Bailey, counsel for Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia, to address the Court of Impeachment concerning the Stipulation and Agreement of the Parties. The Presiding Officer then recognized Mike Hissam, counsel for Elizabeth D. Walker, Justice of the Supreme Court of Appeals of the State of West Virginia, to address the Court of Impeachment concerning the Stipulation and Agreement of the Parties. On motion of Senator Ferns, at 10;54 a.m., the Court of Impeachment to consider proceedings against the various justices of the Supreme Court of Appeals of the State of West Virginia adjourned until 2:30 p.m. today. The Rules of the West Virginia Senate While Sitting as a Court of Impeachment During the Eighty-Third Legislature and the Articles of Impeachment Against the Various Justices of the Supreme Court of Appeals of the State of West Virginia are as follows: RULES OF THE WEST VIRGINIA SENATE WHILE SITTING AS A COURT OF IMPEACHMENT DURING THE EIGHTY.THIRD LEGISLATURE 1. Definitions (a) "Articles of Impeachment" or "Articles" means one or more charges adopted by the House of Delegates against a public official and communicated to the Senate to initiate a trial of impeachment pursuant to Article IV, Section 9 of the Constitution of West Virginia. (b)"Board of Managers" or "Managers" means a group of members of the House of Delegates authorized by that body to serve as prosecutors before the Senate in a trial of impeachment. (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. (d) "Counsel" means a member of the Board of Managers or an attorney, licensed to practice law In this state, representing the Board of Managers or a Respondent in a trial of impeachment. (e) "Court of Impeachment" or "Court" means all Senators participating in a trial of Impeachment. (f) "Parties" means the Board of Managers and its counsel and the Respondent and his or her counsel. (g)"Presiding Officer" means the Chief Justice of the West Virginia Supreme Court of Appeals or other Justice, pursuant to the provisions of Article IV, Section 9 or Article VIII, Section 8 of the Constitution of West Virginia. 2018] JOURNAL OF THE SENATE 9 (h) "Respondent" means a person against whom the House of Delegates has adopted and communicated Articles of Impeachment to the Senate. (i) "Trial" means the trial of impeachment. (j) "Two thirds of the Senators elected" means at least 23 Senators, 2. Pre-Trial Proceedings (a) Whenever the Senate receives notice from the House of Delegates that Managers have been appointed by the House of Delegates to prosecute a trial of impeachment against a person or persons and are directed to carry Articles of Impeachment to the. Senate, the Clerk of the Senate shall immediately inform the House of Delegates that the Senate is ready to receive the Managers for the reporting of such Articles. (b) When the Board of Managers for the House of Delegates is introduced at the bar of the Senate and signifies that the Managers are ready to communicate Articles of Impeachment, the President of the Senate shall direct the Sergeant at Arms to make the following proclamation; "All persons are commanded to keep silence, on pain of imprisonment, while the House of Delegates Is reporting to the Senate Articles of Impeachment"; after which the Board of Managers shall report the Articles. Thereupon, the President of the Senate shall inform the Managers that the Senate will notify the House of Delegates of the date and time on which the Senate will proceed to consider the Articles, (c) Upon the reporting of Articles of Impeachment to the Senate, the Senate shall adjourn until a date and time directed by the President of the Senate when the Senate will proceed to consider the Articles and shall notify the House of Delegates and the Supreme Court of Appeals of the same. Before proceeding to consider evidence, the Clerk shall administer the oaths provided in these Rules to the Presiding Officer; to the members of the Senate then present; and to any other members of the Senate as they shall appear, (d) If the Board of Managers reports Articles of Impeachment against more than one person, the Senate shall conduct a separate trial of each Respondent Individually as required by Rule 19 of these Rules, 3. Pre-Trial Conference 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 The Clerk of the Senate, or his or her designee, shall serve as the Clerk of the Court of Impeachment, administer all oaths, keep the Journal of the Court of Impeachment, and perform all other duties usually performed by the clerk of a court of record in this state, The Clerk of the Senate may designate other Senate personnel to assist in carrying out the Clerk's duties, The Clerk shall promulgate all forms necessary to carry out the requirements of these Rules. 10 JOURNAL. OF THE SENATE [September 11 5. Marshal of the Court of Impeachment; Duties The Sergeant at Arms of the Senate, or other person designated by the President of the Senate, shall serve as the Marshal of the Court of Impeachment. The Marshal of the Court of Impeachment shall keep order in accordance with these Rules under the direction of the Presiding Officer. 6. Trial to be Recorded in Journal of the Court of Impeachment (a) All trial proceedings, not including transcripts of the trial and copies of documentary evidence required to be appended to the bound Journal of the Court of Impeachment by section (c) of this Rule, shall be recorded in the Journal of the Court of Impeachment. The Journal of the Court of Impeachment shall be read, corrected, and approved the succeeding day. It shall be published under the supervision of the Clerk and made available to the members without undue delay. (b) After the Journal of the Court of Impeachment has been approved and fully marked for corrections, the Journal of the Court of Impeachment so corrected shall be bound in the Journal of the Senate. The bound volume shall, in addition to the imprint required by Rule 49 of the Rules of the Senate, 2017, reflect the inclusion of the official Journal of the Court of Impeachment. (c) When available, transcripts of the trial and copies of any documentary evidence presented therein shall be printed and bound as an appendix to the Journal of the Court of Impeachment. 7. Site of Trial The trial shall be held in the Senate Chamber of the West Virginia State Capitol Complex. All necessary preparations in the Senate Chamber shall be made under the direction of the President of the Senate. 8. Floor Privileges Only the following persons may enter the floor of the Senate Chamber during the trial; Members of the Court of Impeachment; designated personnel of the Court of Impeachment; the parties; the Presiding Officer; a law clerk of the Presiding Officer; witnesses and their counsel while testifying; and authorized media, who shall be located in an area of the chamber designated by the Clerk. 9. Representation of Parties The House of Delegates shall be represented by its Board of Managers and Its counsel. The Respondent may appear in person or by counsel. 10. Method of Address Senators shall address the Presiding Officer as "Madam (or Mr.) Chief Justice" or "Madam (or Mr,) Justice". 11. Oaths (a) The following oath, or affirmation, shall be taken and subscribed by the Presiding Officer: "Do you solemnly swear [or affirm] that you will support the Constitution of the United States and the Constitution of the State of West Virginia and that you will faithfully discharge the duties of 2018] JOURNAL OF THE SENATE 11 Presiding Officer of the Court of Impeachment in all matters that come before this Court to the best of your skill and judgment?" (b) The following oath, or affirmation, shall be taken and subscribed by every Senator before sitting as a Court of Impeachment: "Do each of you solemnly swear [or affirm] that you will do justice according to law and evidence while sitting as a Court of Impeachment?' (c) The following oath, or affirmation, shall be taken and subscribed by every witness before providing testimony: "Do you solemnly swear [or affirm] that the testimony you shall give shall be the truth, the whole truth, and nothing but the truth?" 12. Service of Process (a) The Respondent shall be served with a summons for the appearance of the Respondent or his or her counsel before the Court of Impeachment and provided with a copy of the Articles of Impeachment and a copy of these Rules. The summons shall be signed by the Clerk of the Court of Impeachment, bear the Seal of the Senate, identify the nature of proceedings and the parties, and be directed to the Respondent. It shall also state the date and time at which the Respondent shall appear to answer the Articles of Impeachment and notify the Respondent that if he or she fails to appear without good cause, the allegations contained In the Articles of Impeachment shall be uncontested and that the Senate shall proceed to vote on whether to sustain such Articles pursuant to Rule 15 of these Rules. (b) The notice required by this Rule shall be served on the Respondent in the manner required by Rule 4 of the West Virginia Rules of Civil Procedure. All process shall be served by the Sergeant at Arms of the Senate, unless otherwise ordered by the President of the Senate. A copy of the summons to the Respondent, upon its issuance, along with a copy of the Articles of Impeachment and a copy of these Rules, shall be provided by the Clerk of the Court of Impeachment to the Clerk of the West Virginia House of Delegates. Upon service of the same upon the Respondent, a copy of the return of service shall be provided by the Clerk of the Court of Impeachment to the Clerk of the West Virginia House of Delegates. 13. Dismissal of Articles Upon Resignation of Respondent; Termination of Trial (a) Any Senator may move to dismiss the Articles of Impeachment against a Respondent if at any time before the presentation of evidence commences In his or her trial of impeachment the Respondent has resigned or retired from his or her public office. Upon motion of any Senator to dismiss the Articles pursuant to this Rule, all Senators not excused shall vote on the question of whether to dismiss the Articles against the Respondent. If a majority of Senators elected vote to dismiss the Articles against the Respondent, a judgment of dismissal shall be pronounced and entered upon the Journal of the Court of Impeachment or the Journal of the Senate, whichever is convened at the time such vote is taken. •(b) A vote pursuant to this Rule shall be taken by yeas and nays. (c) Upon dismissal of the Articles of Impeachment against a Respondent pursuant to this Rule, all pre-trial and trial proceedings regarding said Respondent shall Immediately cease. 12 JOURNAL OF THE SENATE [September 11 (d) If the House of Delegates adopts and communicates Articles of Impeachment that name more than one Respondent in one or more of the Articles, a dismissal pursuant to this Rule shall not dismiss the articles as to any Respondent who has not resigned or retired. 14; Commencement of Trial; Answer to. Articles of Impeachment At the time and date fixed and upon proof of service of the summons directed to the Respondent, the Respondent shall be called to answer the Articles of Impeachment. If the Respondent appears in person or by counsel, the appearance shall be recorded. If the Respondent does not appear, either personally or by counsel, then the failure of the Respondent to appear shall be recorded. While the Court of Impeachment is in session, the business of the Senate shall be suspended except as otherwise ordered by the President of the. Senate. 15. Failure of Respondent to Appear and Contest (a) If the Respondent fails to appear personally or by counsel without good cause at the time and late specified in the notice required by Rule 12 of these Rules, the allegations contained in the Articles of Impeachment shall be uncontested. (b) If the allegations contained in the Articles of Impeachment are determined to be uncontested under section (a) of this Rule, the Presiding Officer shall then call upon the Board of Managers to deliver a summary of the evidence of the allegations contained in such Articles. (c) After the summary of evidence delivered by the Managers, the Court of Impeachment shall vote on the question of whether to sustain one or more of the Articles of Impeachment in accordance with the requirements of Rule 31 of these Rules, 16. Entry of Plea or Pleas; Procedures Based on Plea or Pleas If the Respondent appears and pleads not guilty to each article, the trial shall proceed. If the Respondent appears and pleads guilty to one or more articles, the Court of Impeachment shall immediately vote on the question of whether to sustain the Articles of Impeachment to which a plea of guilty has been entered in accordance with the requirements of Rule 31 of these Rules. 17, Subpoenas A subpoena shall be issued by the Clerk of the Court of Impeachment for a witness on application of a party. 18. Procedure in a Contested Matter (a) After preliminary motions are heard and decided, the Board of Managers or its counsel may make an opening statement. Following the opening statement by the Managers, the Respondent or his or her counsel may then make an opening statement. (b) The trial shall be a daily special order of business following the Third Order of Business of the Senate, unless otherwise ordered by the President of the Senate. When the hour shall arrive for the special order of business, the President of the Senate shall so announce. The Presiding Officer shall cause proclamation to be made, and the business of the trial shall proceed. The trial may be recessed or adjourned and continued from day to day, or to specific dates and times, by 2018] JOURNAL OF THE SENATE 13 majority vote of the Senators present and voting. The adjournment of the trial shall not operate as an adjournment of the Senate, but upon such adjournment, the Senate shall resume. (c)After the presentation of all evidence to the Court of Impeachment, the Board of Managers shall present a closing argument, after which the Respondent shall present a closing argument. Following the Respondent's closing argument, the Board of Managers may offer a rebuttal. (d) The Board of Managers shall have the burden of proof as to all factual allegations. The Presiding Officer shall direct the order of the presentation of evidence. 19. Separate Trials of Multiple Respondents; Order of Trials (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 which multiple Respondents shall be tried. 20, Witnesses (a)All witnesses shall be examined by the party producing them and shall be subject to crossexamination by the opposing party. Only one designee of each party may examine each witness. The Presiding Officer may permit redirect examination and recross-examination. (b) After completion of questioning by the parties, any Senator desiring to question a witness shall reduce his or her question to writing and present It to the Presiding Officer who shall pose the question to the witness without indicating the name of the Senator presenting the question. If objection to a Senator's question is raised by a party, the objection shall be decided in the manner provided in Rule 23 of these Rules. (c) It shall not be in order for any Senator to directly question a witness. 21, Discovery Procedures (a) Within five days after service upon the Respondent of the Articles of Impeachment, the Respondent may request, and the Board of Managers shall disclose to the Respondent and make available for inspection, copy, or photograph, the following: (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; (2) Any books, papers, documents, data, photographs, tangible objects, buildings or places, or copies of portions of such items in the Managers' possession that the Managers intend to use In their case-in-chief as to one or more Articles of Impeachment; (3)A list of the persons the Board of Managers intends to call as witnesses In its case-in-chief during the trial; and (4) A written summary of any expert testimony the Managers intend to use during their casein-chief. Any summary provided must describe the witness' opinions, the bases and reasons for the opinions, and the witness's qualifications. 14 JOURNAL OF THE SENATE [September 11 (b) The Board of Managers shall make its response to the Respondent's written requests within 10 days of service of the requests. (o) If the Respondent makes a request pursuant to this Rule, he or she shall be required to provide the same information to the Managers, reciprocally, within 10 days following his or her request. (d) A copy of all requests pursuant to this section shall be provided to the Clerk. The parties shall provide to the Clerk, in a format or in formats directed by the Clerk, copies of all items disclosed pursuant to this Rule. (e) The Clerk may require parties to number or Bates stamp any trial exhibits or other information provided to the Clerk. The Clerk may hold a meeting with the parties to organize trial exhibits. 22. Court Reporters; Transcripts (a) All proceedings shall be reported by an official court reporter or certified court reporter: Provided, That if the services of an official court reporter or certified court reporter are unavailable on one or more days of the trial, the proceedings shall be digitally recorded and copies of the recording made available to the parties. (b) Upon request of a party, the Presiding Officer, or any Senator, the Clerk shall provide a copy of the transcript of any portion of the trial, when such transcripts are available. 23, Motions, Objections, and Procedural Questions (a) All motions, objections, and procedural questions made by the parties shall be addressed to the Presiding Officer, who shall decide the motion, objection, or procedural question: Provided, That a vote to overturn the Presiding Officer's decision on any motion, objection, or procedural question shall be taken, without debate, on the demand of any Senator sustained by one tenth of the Senators present, and an affirmative vote of a majority of the Senators present and voting shall overturn the Presiding Officer's decision on the motion, objection, or procedural question. (b) On the demand of any Senator or at the direction of the Presiding Officer, the movant shall reduce the motion to writing. 24. Qualification to Sit as Court of Impeachment Every Senator is qualified to participate on the Court of Impeachment, unless he or she has been excused pursuant to Rule 43 of the Rules of the Senate, 2017. 25, Members as Witnesses •The parties may not call as witnesses, nor subpoena the personal records of, the Senators, members of the Board of Managers, personnel of the Court of Impeachment, the Presiding Officer, or counsel for the parties. 2018] JOURNAL OF THE SENATE 15 26. Attendance of Members Every Senator is required to attend the trial unless he or she has been granted a leave of absence, pursuant to Rule 50 of the Rules of the Senate, 2017, or has been excused from voting on the Articles, pursuant to Rule 43 of the Rules of the Senate, 2017. Any Senator who has been granted a leave of absence shall be provided an opportunity to review the exhibits, video or audio recordings, and transcripts for the date or dates he or she is absent and may participate in the vote on verdict and judgment as provided in Rule 31 of these Rules, 27. Islotetaking Senators may take notes during the trial and such notes are not subject to the provisions of W. Va. Code §29B-1-1 et seg. 28, Applicability of Rules of the Senate Except as otherwise provided herein, the Rules of the Senate shall apply to proceedings of the trial and the President of the Senate retains the authority to invoke such rules. 29. Applicability of Rules of Evidence When not in conflict with these Rules or the Rules of the Senate, the Presiding Officer shall rule on the admissibility of evidence in accordance with West Virginia Rules of Evidence: Provided, That a vote to overturn the Presiding Officer's ruling on the admissibility of evidence shall be taken, without debate, on demand of any Senator sustained by one tenth of the members present, and an affirmative vote of the majority of Senators present shall overturn the ruling. 36. Instruction At any time, the Presiding Officer may, sua sponte, or, on motion of a party or upon request of a Senator, instruct the Senators on procedural or legal matters. 31. Verdict and Judgment (a) After closing arguments, the Court may enter into a Conference of Senators for deliberation. After conclusion of said conference and return to open proceedings, or pursuant to Rule 15 or Rule 16 of these Rules, all Senators not excused shall vote on the question of whether to sustain one or more Articles of Impeachment: Provided, That any vote of the Senators on the question of whether or not to sustain an Article of Impeachment shall decide only that Article, and no single vote of the Senate shall sustain more than one Article of Impeachment. The Presiding Officer shall have no vote in the verdict or judgment of the Court of Impeachment. (b) If two thirds of the Senators elected vote to sustain one or more Articles of Impeachment, a judgment of conviction and removal from office shall be pronounced and entered upon the Journal of the Court of Impeachment. If the Respondent is acquitted of any Article of Impeachment, a judgment of acquittal as to such Article or Articles shall be pronounced and entered upon the Journal. JOURNAL OF THE SENATE 16 [September 11 (o) If two thirds of the Senators elected vote to sustain one or more Article of Impeachment, a vote shall then be taken on the question of whether the Respondent shall also be disqualified to hold any office of honor, trust, or profit under the state. If two thirds of the Senators elected vote to disqualify, a judgment of disqualification to hold any office of honor, trust, or profit under the state shall be pronounced and entered upon the Journal of the Court of Impeachment. (d) Each vote pursuant to this Rule shall be taken by yeas and nays. (e) A copy of all judgments entered shall be deposited in the office of the Secretary of State. 32. Conference of Senators (a) On motion of any Senator and by a vote of the majority of the members present and voting, there shall be an 'immediate Conference of Senators. No Senator or any other person may photograph, record, or broadcast a Conference of Senators. Any motion made pursuant to this Rule shall be nondebatable. (b) The President of the Senate, or his or her designee, shall preside over a Conference of Senators and the Rules of the Senate shall apply during said conference except as otherwise provided herein. 33, Contempt; Powers of Presiding Officer The following powers shall be exercised by the Presiding Officer: (1) The power to compel the attendance of witnesses subpoenaed by the parties; (2) The power to enforce obedience to the Court's orders; (3) The power to preserve order; (4) The power to punish contempt of the Court's authority; and (5) The power to make all orders that may be necessary and that are not inconsistent with these Rules or the laws of this state. 34. Prohibited Conduct; Sanctions The Court of Impeachment shall have the power to provide for its own safety and the undisturbed transaction of its business, as provided in Article VI, Section 26 of the Constitution of West Virginia. 2018] JOURNAL OF THE SENATE ARTICLES OF IMPEACHMENT AGAINST THE VARIOUS JUSTICES OF THE SUPREME COURT OF APPEALS OF THE STATE OF WEST VIRGINIA Article I 1 2 a 4 -5 6 7 8i 10 . That the said Justice Allen Loughry, being a Justice of the Supreme Court of Appeals of West Virginia, unmindful of the duties of his high office, and contrary to the oaths taken-by-111m to SUppOrt-the aonstitutiOn. of the. StaleOf West Virginia an faithfully 'discharge the dutiot of his Offiee-aS-stioh 4.ustlea white hithsSxercie of the funottens Ofthe Officoe'OfJusti00inViolation of his Oath .cfbffice, then aria there, with regard to the :dlachargeorthadbilealgtiS offiee,4idwaste elate-Node with little orto- concemforthefposts to baborno-bythe tax payerfor unnecosearTati-di lavish spending- inr. the roavaliorvenit remodeling parsortaf !Ace, to they -sum of approximately-336100D', whIeWsOrillriclucted th.o.purchaea-of--aV4,024 with medallion, and-OthesuCh.wastKilexpen.diture nOt-neCeaSery-for-the,edminiStratIcri OfjuStice and-the-execution 4-thadUlles-of the,tovrt, which represente.e.waste:pf qtetoluncie. 17 JOURNAL OF THE SENATE 18 [September 11 Article It 2 3 4 5 6 7 a 0 10 ii That -the sAid Justice-Robin DoVla, beinga Justice of thaZupremo Court of Appears of West:Virginlai unmindful of thev.cAuks•-pf bet.lifgh_Office; and contrgry0 the.-oathalOen.-by-herlo,, support the ConstitUtion of The8.14W or West Virginia end felthfOlty:discharge the duties of her office as Suet' Aletieejvhlte tn. the exerOlge thejUnetiona.,.efthe: offteeofjuttleein •ylvIatien of her oath of office then and ..theta, witiltevora- to tho,clig:0114itwofthi4:41110t-.4f her:Officp.„01(1 waste state uride:With- RH orno bnOerh forthO:gost4bome .tb0-.-10P.aye for vt) he.coto iyrand: laviSh spending 14 :the renovation• And renlocieling of her personal office to the -SUin, of -apprcxlmcitsiy.45Q.Q;06%.:which-oth inchfcRici,hytle•.rict:itOeltci,-!ille,pitrehe0oief en Wel vi rugthat east approxlmately,$20500,-,a- desk tho thateost iippreklenttely:U,000_nhcfover $23,000 In design services, .and,othet such wasteful expenditure not for the.admInistratton of Justim:and the-executionlotthedittleslof the-Court, which represents awasteot tate -funds, 2018] JOURNAL OF THE SENATE Article ill 1 2 3 4 6 7 8 0 10 11 12 12 14 That the said Justice Allen Loughry, being a JuStice of the.Stipreme Court of Appeals of West Virginia, unmindful of the duties of his high office, and contrary to thebathe Taken by him te support the Constitution of the State: of West Virginia Eind thithfully discharge the duties of his office 414 such JtistIcai while- in the exerdise-of the: functions Of the office or--Justice, In violation of his oath of offiee, then end there, with regard itc:theaseharge of the duties Of his office did on or about June 20, 2016€ cause. a,Oertainilsk; ota type 0110qulally RnoVaryes,a "Cass deek, to be transported from the 8tate,Capitol'Ic Ws borne, end did maintain possession:of euch.dosk in hie home, where It rernained,throughout his term Ets.•JuStice for approXimatelY four endone-halP years, In violation of the proVislono or i/C,riVa.,:codo14-177:01PrOhiblttng the removal of original furnishings. of the :Stater capitol from the premleast'furthety the expenditure :of .Slate (uncle to: transport the desk to his-home, and refuOal :to return the desk:to the tate, constitute the use:of state reSources arid property for petsonal gain in vlelation, Of the: proviSiOnS et YV,Vac Code t802,5, the provisions of the Wog Virginia '8tate 5thics;Act, and constitute.s violation of the previsions of Canon I of.the West:Virginia Code of Jiidicial ConduCt, 19 20 JOURNAL OF THE SENATE [Septemlper 11 Article IV 1 2 3 4 5 8 7 8 9 10 11 12 13 14 15 16 17 18 19 That the said Chief )tisticelvierberet Workman,- andJuStlee Robin Davis, being at ell times relevant Justices of the-Supreme Court of Appeals of West Virginia•, and at various relevant times individually each Chief Justice of the Supreme-Court of Appeals ofVVest Virginia unmindful of the duties of their higttoffIces, andcontrary to the oaths„takeri by them tossiipport the Constitution Of the.State of WostVirgIniaand-faithfully -cliScharge the duties of their offieeses,such.Justicesi.while, in the exercise cif thetunctions- of the Office- ofJuthlces In ViolatIon,of their oaths of offleei-then end there,-With regard;tothe.diseharge.ofthe:d.utles ofthelroffices, cominencIng IneraboutAl2i ,did knowingly and Intentlanally acLand each stibsequently.oversee- ii ThsJraopaeity.as. Chief. Justice, and did -In :that:capacity-ea Chief juStioe. severally algp..ard approvellv contraCts. necessary to faCilitate; at each such relevant time, to,:overpay bertstri:Stvlor-Statits Judges: in violation of the .statutory limited maxlmtim salary for such Judgos,.which . Overpayment is a violation of Article VIII, §7 oIlhO West Virginia Constitution, .slatIng.that:Judges 'shall receive the. salaries fixed by law" and the provisions of W.Va. Code §51,2.13 arid W.Va. Oode-§5-1-9-10, and, in violation ofanAdmInistratiVe Order Of the -8upreirie Cur[ Of Appeals, in potential violation of the-provisions of VV.Va. Code g61422, relating telhe Crimsof falsification of accounts-with intent to enable or asSist any person to obtain ri101)(3y to which he woe not entitled, and, in potential. violation of the OrdAt.10.118::80t•forth In WA, tpd:(1..§647$424-,,r.elOtIrTO to the, erlme:of obtaining Money, property -and erviCeS- by false •firOt00$0s1.:070, all of the above are in iipl4tiorl of the provisions of CanOnil end :Carton II of the West Virginia Code of,Judlcial Conduct. JOURNAL OF THE SENATE 2018] Article V 1 That,tha said Justice- Robin- ()avis, being at-.all times rolev_ant -a Justice of the Supreme, 2 Court of Appeals of West Virginia, and, at certain relevant times indiVidually Chief Justice at the a Supreme Court of Appeals of West Virginia, unmindful of the duties of her high -Offlees, and contrary to the oaths taken by her to-support the Constitution of the State of West Virginia-and faithfully die-Charge the dunesOf his office: aa.suctrJ.usticeoVhite In-thecexercise of the functions of the:office ofJusttceiitvkiiettort of her oath..ofeffice,thertand:thereimith regard to the-discharge of the duties other office; did-In-the year 2014, didirt her capacity ea Ohlaf- Juatice sign _certainForms WV 48, to-1.0105 and compensate certain Senior Statue.- judges:th.0- execution. of which,fei•Ms allowed the -0.upreme-Crourt.Of AivealSIO,overpay-tii0§Q.,oerteli:t $enter- Status Judges vlelationof ArtiCle.V111,47 ofthoW00-Vitgli*_Qomtftgljon,:.stOn§thalAdgee:".Shallreeetve thesalaries- fixed-by lam/TAM. statutorily: limited- maximum salary, for such ..-judge.s,_ overpayment-Is a vle.latten.of theprovislens Of-W:Va, Codai6.1.;. 9i0 herauthorizatlen Of such overpayments- was-a violatierolthe dear statUtory law of the-slate-of West as-Sot forth In these.releVant -pode-SeetIons,rffid, was en-Cot In.:potential violation of the provisions set forth itl-W.Va; Code-§61-3-22, relating te.the:drima.offelatftoption'Of accounts with intent to enable or assist any-person to .o.btalri money to Which homes not entitled, and, M potential violation of the proVislohs set -forth in W.Va. Code1.61-3-24, relating to the grime of obtaining money; property.en.d.serVices. by,'Nlu).pretenSeSiand :alt erthe-aboye are JO vielati.ori 4 5 6 7 10 11 12 13 14 16 16 17 1.8 1,0 of theprovisteris df Canon't ed-Carton II orthe WeSt.Viivinla CodaefJOidial-COnd.uct. 21 22 JOURNAL OF THE SENATE [September 11 Article 2 3 4 5 7 8 9 That Ihe.sald Justice Margaret V.Verkmonf being ot 411.10100- .relevent Justioe of the. Supreme Court of:Appeals. Of West Virgintamd'ateertain r.eleventlinloOndivIdnally Chief SustIce of the Supreme. Court of:Appeals of WeSt Virg Inlavunmindfui of theiritities.cither big h.offloes,_ and contrarylota oath's: taken by-her -to .s.upport.the Constitution of The :State of West vroi* and faithruily.disoherge the-c.kittee..of hie-office assuch JUstloar while in-the 'exercised the functions oftheofficepf-Justioejn,v1alation pfher oath 'af.offipa,:thOratrid-thee, With regard Wthedlscharge ofthe duties: of her Office, did In the year 2015,.dtd in her chief dusk*, sign certain Forms WV 48, to retain -and- compensate certain Senior. Status Judges the execution of which forme allowed the Supreme Court :of AppealS.to overpa'y those certairrSentor.Stattis Judges in • 10 violation . of the statutorily limited maximum lsalary for .auch Jurlcjoe which .oyegi).oyrnOkt is a Violatienpf Arucle VIII §11. _of the Webt Virginia Constitution, **gang :Mal 0.1d0e`'t hallfOeeivo.the salariesfiked-by mw' and the'proVielons. fWVo,. Code •§51-42.-13:firid.W.Va,..Code.:151.‘940,, her .authorization- orsuch overpayrnents was.a viOlation of:tile clear statittery laworthestatepf West. 14 Virginia, ,set forth. in those relevant .Coda.seOtiOns, andirWas,anaain. plated tiaryfoWlo n ate - 15. .proVIsfona set- forth irtW:Va,'COrte i422, relating to the crime Of feltiftcation of aceountS With 1:1 12 13 16 17 18 19 Intent to enable or assiStany person te.obtain moriey- Wwhloh vvoSnotentitledcand, inpotential violatiory.of the provisions set forth In W,Va. Code relating -W. the crime of 'obtaining money, property -and servieess by false pretensoS-, and all of the above are in violation of the provisions of Canon I and Canon II of thoWest Virginia-Code of.Juclicial Conduct,. JOURNAL OF THE SENATE 2018] Article VII 1 2 3 4 5 6 7 8. 9 10 11 That the said Justice Allen Loughry, being stall times- relevant a Justice of the Suprerne Court of Appeals of West Virginia, and -at that relevant time individually Chief Juati0e of iho. Supreme. Court of Appael8 of West Virginia:, unmindful of the duties- of his high offices, and contrary to the oaths taken by-him-to support the Constitution- of the State-of Met Virginia,and faithfully.discharge-the duties of his ()Moo as Such- Justices,while in the exercise of-the functions of the Office. of Justice,' In Viotation.of his oath of offlee, then- an-d there; With-regard4o the discharge. of the- dtities,Of his officaOld on or-about: May:19., 2017, did Irf hia:dapacity es Chief JUstlea, draft an- Administrative Order ofrthe Supremor.Ceurt ot:Appeals,:hearing Ills signature, authorizing ;the *Supreme- Court of Appeals to ovepay cer(sin. Senior Violation of:the statutorily limited maximunsalargors0011.iltidges, whickoverpayMent Is ar,v1oSiatici1 of ArticleV111, §:f.7 the. West Vitginle:Oonsittution, stating- the t .JudgesVell MONO:111'046 laries rfixad :by lay' -and 12 the provisions 'of WVa, 00de --§6110.anct.W.Me, -0006 51:,,9,;-10; -aUtherizatlen, asuch, '1.3. overpayments was a violation- Of the. clear statutOrY Javikor the :StatstOf West VirgInla,*po- t, font) 14 In those relevant .code eetions and was n sot in:potential violation- Of the provisions set RAIN 15 in'W.Va, pixio §61-3.-Q2, relating ie- the crime of falsiflOatien of-escoUnts-With,intent to:enable or 10 :asslet.any pereon To Obtain money-to whfch.ho was not entitled, and; in:potential violation of the 17 previslens set forth in W.V.s.,Oode §61-844, relating to the crime of 'obtaining money, property 18 and services by faiSe pretenses,. and all-of the ebove-are In violation Of the.provislons,of Canon I, 19 and Canon II of theVeat Virginia Code of Judicial Conduct. 23 24. JOURNAL OF THE SENATE [September 11 Article Vill 1 . 2 3 4 5 7 8 9 10 That -the said Juelide.Allen JUSticO, of The SO-fiteMe.poUrt of:Appears:of 'West Virginia, Unnitn-dfcil ofte.dutieS:OfhiS high Office4rid COntrary te the CiathS taken by him to suPport the ConStitation of the $tote of West Virginia and faithfully .discharge the duties-of -his. office as such Justice, while in the eiorCise olthe functions Of the offide of,Justice, in violation:of his oath of office, then and therewith regard id the discharge of the duties of his office, did beginning In or aO.Out December 201-2, and continuing thereafterfore period of -years; intentionally acquire and use state Overnment vehieles for porSona] use; Including, but. not limited to, using e.state.vehtele and gasoline': purehased 4tIliztng a:State:is-suedlust putonaso-cand to travel to 010 QrSeitrier on one or mer occasions lidep5ok.pkoin00!ayid.ti410AWhiolVdych tits:efiriclied his idOilly fgAdWhirh acts -0.11401(10. tile -uarjf 0010 ires.oltrOds -and propOrty 'for pouritl try •voiatfort of provisions of W V 6, 'coo 6B 2 5, the previsidrit .OrtlieVarVirginia Slate Ethics 12. Act, and constittite=e-vielation-ortheloovieloris oVOonohlE.cif- theVet'VjigtrtirECodefof Judicial 13 Conduct, 2018] JOURNAL OF THE SENATE Article IX 1 That the-said. Justice- Allen LOgghry, -being p Ju- tice Ofte SUOreille Court of. AO-Peals. of West: Virginia, tinn1indfuiof the2d0 ties: of his *high. 'Ogee _Oentrary.t.Olhe 'Oaths i5K:b.hlm to 3 suPport'the.Constitution of the State of-West-Virginia arrda.lthfUIldisohrge the-duties of, his 4 office as-such- ..tustioa„.-Whilein :the exercleo-Orthe lime lion sO.theoffies, of.Jutioe, .th \Ablation- of 5 his oath of office,. then and There, with regard1e the .discher.g,e, or-the duties e hiaoffice, did 6beginning in or. about December intontionally -Pcgulred .Pod. Ofate: government. 7 comptiter .eduipmentiand .hardwarg for.prodominaWy- persOnektise-AnolUding a oompUter not 8 intended to be cOnnected tolhe. court's network; Utilized state resources to. install-coriputer access services at his home. for Orecterninatoly p:ersonal use; :arid Utilized state -resourcos lb 10 provide maintenance and...repair OF:computer serviCes fOr is residence resulting from 11 predominately personal use;1111 of:0'0h adtS.00riStitute the uSor.of state resourceS bbti property 12 for porsOnal gain in Violation-0111e provision& of W.Va. Code.0B-2-5,.- theproVielons of the West13 Virginia,..State,Ethlos.Act,Wd;e0nstitute:avielatiortof the'proViefOris efCanent of thoWeSt Virginia '14 COde of ;fuddle' Con(luot. 2 • • 25 26 JOURNAL OF THE SENATE [September 11 Article X That the said Justice Allenteughry, being a Justice of the.Supreme Court of Appeals of 2 West Virginia, unmindful of lie duties of his high office, and contrary to the oaths taken by him to 3 4 $ support the Constitution of the State of West Virginia end faithfully -discharge the dutieS of his office as such Justice, while in the •exercise -of the functions of the ()tiro of Justice, In Violation of his oath of office, then and there, with regard-to the-discharge of. the duties of his office made statements-while under -oath. before, theVest Virginia House 'of•Delegates finance Committee, 7. 8 9 with deltbaratalritent.to deceive; regarding- renovationeItrid purellages:TOr his. office-, .asserting that: he 1)0 •no knowledge A.nd -InvolyOttiottt. lti Jbesie,.renoseattOnS, where eviclenc0 presented 19 Clearly cleiliorietrated his to-depth iMeWtedge and Paftlelpationln: those renovations,, .and, hit InteritiOnat effortato decelVe'Marobers.of thevLsagtSiature.aboUthis 04010101km;pIci koo.Wiocige: of these acts, while under Oath, JOURNAL OF THE SENATE 2018] Article XIV 1 That the:_ said Chief Justice Margaret Workrfien,- Justieb-Allen Lo.etghry, Justice Robin 2 Davis, and Justice Elizabeth-Welker!. being of;all times releventAtatices'of the Supreme Court-of' 7 8 ApPeals of West ylr,c.linial tirfi irsdfui of the:dettles Of. herr high Offices, end contr.aly to the Oaths taken by theMlotuppotrthe ObinglitiltiOni-Of the state:or West;Virginia,end.faithfUlly cliSchafgelhe duties Of their of-floes:00. such JusticeS, While the eXereiSe Of tfte functions Of the -office of Justices; in -violation of their baths- of Office,;then and-there, with regard to--the-41Sofiarge el the -duties of :their offices, :did,- in. the:absence-or:any -policylo,preventopeentrol expenditure, waste state funds with.little or no concern for the costs to be borne by.the tax payers, for unnecessary 9 10 11 12 .13 14 1$ and lavish spending for various purposes inoluding,:but without limitation, to certain examples, such as: to remodel.state offices, 'for large increases In travel budgets—including unaccountable personal _use of elate vehicles; for unrieedeci.computers -for- home use,, for regular lunches:from restaurants, and fpr framingof person-al:Items. and other such wasteful expenditure_ net necessary forth() administration of justice andthe•executle.n:orthe..-dutieS-of the:Co:tit- end; dldhil to provide or:prepare :reasonable-end: roPer sclperylSorke.Versight of the -Operations: of the COUrtand the e.tibefariate -Nutt's. to OarrY, Ot,it One Or tilei•e-athelolloWifa-ncoe.sSery. arid. preper. 10. 1.7 18 19 -20 admIniotrativ.o:aCtivities; A) To prepare and,-edeptetiffrelenter_td.effectiveAravel policias•-prier.to Coteber of20.10, and.Jalled Mereefterto `properly -ptteptpM4•0:-011:pi51(oypyiaxecirmihb:the,J1,14004tom sakippliclea,tarid.-subjebteicroubordirtatee-andeMpioyees.ree greeter butden than.tho• Justices; C3) 176 repbrtlakablp.hingo b•orlaci% such furiohoo, on Falderal W-2s, despite full :knoWledge Of the, Internal Revenue. $ervice_Reguletione, and further subjected subordinates and :employeee to a,.greater burden. than The ,IUStlekte,. in this regard, and upon notification of violation, failed to.spoecilly comply with:requests to Make-suchreporting.censietent- with epPlicabte-laWi -0) To provide, prOper .supervision, cOntrol, end auditing Or,the use of theta .potolla$Ing cattle leading to MUM* Violetions.:efetate-statcites.nr0 petioles regtilatingthe -.Proper use dt (.1bli..p.prejs,.Includingrallind:--to obtain proper-prier epprevel'fOr largo-purchases; taiy Tp..pre0re. and adopt sufficient and effective Niro Offlop.poliolo.,which would ,govern: oversight Which .thp. • JetatIpee!- hoine: computer Yee, and which • led to 1010k encouraged theoenv-ersien'er.propertYl:. 4 6 6 21 22 23 24 26 .20 .27 .28 29 30 31 27 28 JOURNAL OF THE SENATE 32 . 33 [September 11 To provide. effeetive.supetvlsIon:and ?Central .over reward keeping .with respect to the .34 use.of.st-OteeutoMobiles, which has already resulted in.en exeduted infOrmation upon one-formai-Justice. and the:Indictment oranother.Juitice. 35 Fj. To provide effeetiva.:a0dorylalen And adtitrotovef invontp.aos::0ipowrit9party-pwned 36 by the COUrt-and .8 tibotdiriate courts,..whloh lotrdiraoilytortho-uriddleOted- dbaenoa.of 37 valirehle.ietatA ptnp,. Iludln.bu1>. nOt:Itiillted Jo; otatO-owned-rdeak nOta MOB; 38 owned computer; 39 To.provideaffeetIve,superVISIOri and control. over eurehaaln.g,. procaliirea wlitoh *0 'rattly led-to inedeguetecost.:contaironentraethods.,tlfa rob tdding.'of:th purahaeea 40 .41 .42 43 of good and-servtOes ary:Striin..or barge uns'oper*ed change orders; ell of whIch encouraged weate-of taxpayer funds. -The failure by the Justices:, individ.ually :and collectively, to carry out:these necessary-end :44 proPer-admInistrative -activities constitute:a violation. of the provisionapt Canon land Conorrit of - 45 thaWastVirgirila Code or.Juditial,Cenduct. We, John OYetincit.en, Speaker-Pro Tempura Otto: ROO:Of Otikvol:c4...of•VV0W and .$tophen J. Harrison-, Qlerk tharegfi cettlf , thet:po ebeve..and fortVOIng pkrefoloa K:;tImpeachment against JustiCee Of theAciprome QOurt of ApPeals of West Virginia; wee adopted by the House of Delegates. on the Thirteenth day of:A.140st. 2018, In Testimony Whereof, we have signed our names hereunto:this FOurteentli day of August, 2018. John Overiri tort, -P.peaker Pre leili-Ore,ottile:Hatso of.DoleUatos Stephen J,. Harrison, Clerk.of the. Hetlee.ofD0106-atea 2018] JOURNAL OF THE SENATE 29 The following letter from the Honorable Lee Cassis, Clerk of the West Virginia Senate, is inserted into the Journal of the Court of Impeachment: The Senate of West Virginia Charleston September 11, 2018 The Honorable Mitch B. Carmichael President of the Senate And The Honorable Members of the West Virginia Senate Dear Mr. President and Members: Pursuant to Rule 4 of the Rules of the Senate While Sitting as a Court of Impeachment, I have this day designated Kristin Canterbury, the Assistant Clerk of the Senate, to serve as Clerk of the Court of Impeachment in my absence. This designation will be filed in the Journal of the Senate and the Journal of the Court of Impeachment. Sincerely, Lee Cassis Clerk of the Senate The Senate, sitting as a Court of Impeachment to consider proceedings against Robin Jean Davis, Retired Justice of the Supreme Court of Appeals of the State of West Virginia; Allen H. Loughry II, Justice of the Supreme Court of Appeals of the State of West Virginia; Elizabeth D. Walker, Justice of the Supreme Court of Appeals of the State of West Virginia; and Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia, met on Tuesday, September 11, 2018, at 2:57 p.m. The Honorable Paul T. Farrell, Acting Chief Justice of the Supreme Court of Appeals of the State of West Virginia, assumed the chair and presided over the Court of Impeachment. The Presiding Officer then directed the Sergeant at Arms to summon the Managers, attorneys, and respondents. Without objection, the Journal of the Court of Impeachment to consider proceedings against the various justices of the Supreme Court of Appeals of the State of West Virginia was considered as having been read and approved. The Managers, appointed by the House of Delegates to conduct the trial of impeachment of the various justices of the Supreme Court of Appeals of the State of West Virginia, to wit: Delegates Shott, Hollen, Byrd, and Miller (Delegate Foster, one of the said managers, being absent) entered the Senate Chamber and took the seats assigned them. Brian Casto, Marsha Kaufmann, and Joe Altizer, counsel for the Managers of the House of Delegates, accompanied said Managers. 30 JOURNAL OF THE SENATE [September 11 Respondent Allen H. Loughry II, Justice of the Supreme Court of Appeals of the State of West Virginia, and the respondents' counsel entered the Senate Chamber and took the seats assigned them. The Presiding Officer informed the Managers, attorneys, and Respondents that the Court of Impeachment had not adopted a resolution publicly reprimanding and censuring Chief Justice Margaret L. Workman and Justice Elizabeth D. Walker and that the trials would move forward. The Presiding Officer then directed Mike Hissam, counsel for Elizabeth D. Walker, Justice of the Supreme Court of Appeals of the State of West Virginia, to approach the podium. The Presiding Officer stated that Elizabeth D. Walker, Justice of the Supreme Court of Appeals of the State of West Virginia, was charged In Article XIV of the Articles of Impeachment and asked if Justice Walker admitted or denied the same. Mike Hissam, counsel for Justice Walker, responded that Justice Walker denied the charge. The Presiding Officer then set the trial date for Justice Walker for Monday, October 1, 2018, at 9 a.m. The Presiding Officer then directed Steven R. Ruby, counsel for Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia, to approach the podium. The Presiding Officer stated that Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia, was charged in Articles IV, VI, and XIV of the Articles of Impeachment and asked if Chief Justice Workman admitted or denied the same, Steven R. Ruby, counsel for Chief Justice Workman, responded that Chief Justice Workman denied the charges. The Presiding Officer then set the trial date for Chief Justice Workman for Monday, October 15, 2018. The Presiding Officer stated that pre-trial motions would be taken up at that time. The Presiding Officer then directed Allen H. Loughry II, Justice of the Supreme Court of Appeals of the State of West Virginia, and John A. Carr, counsel to Justice Loughry, to approach the podium. The Presiding Officer then asked Mike Hissam, counsel for Justice Walker, and Steven R. Ruby, counsel for Chief Justice Workman, if the Respondents formally waive the reading of the Articles of Impeachment. Mike Hissam, counsel for Justice Walker, and Steven R. Ruby, counsel for Chief Justice Workman, responded that Justice Walker and Chief Justice Workman waived the reading of the Articles. The Presiding Officer then asked Justice Loughry if he formally waived the reading of the Articles of Impeachment. John A. Carr, counsel for Justice Loughry, responded that Justice Loughry waived the reading of the Articles. The Presiding Officer stated that Allen H. Loughry II, Justice of the Supreme Court of Appeals of the State of West Virginia, was charged in Articles I, III, VII, VIII, IX, X, and XIV of the Articles of Impeachment and asked if Justice Loughry admitted or denied the same, Allen H. Loughry II responded that he denied the charges. The. Presiding Officer then set the trial date for Justice Loughry for Monday, November 12, 2018, at 9 a.m. 2018] JOURNAL OF THE SENATE 31 The Presiding Officer then directed the counsel for Robin Jean Davis, Retired Justice of the Supreme Court of Appeals of the State of West Virginia, to approach the podium. The Presiding Officer stated a motion for pro hac vice admission of James M. Cole had been filed for James M. Cole to appear as counsel on behalf of Retired Justice Davis during the Court of Impeachment. The Presiding Officer then stated the motion was granted. The Presiding Officer then asked James M. Cole, counsel for Retired Justice Davis, if the Respondent formally waives the reading of the Articles of Impeachment. James M. Cole, counsel for Retired Justice Davis, responded that Retired Justice Davis waived the reading of the Articles. The Presiding Officer stated that Robin Jean Davis, Retired Justice of the Supreme Court of Appeals of the State of West Virginia, was charged in Articles II, IV, V, and XIV of the Articles of Impeachment and asked if Retired Justice Davis admitted or denied the same. James M. Cole, counsel for Retired Justice Davis, responded that Retired Justice Davis denied the charges. The Presiding Officer then set the trial date for Retired Justice Davis for Monday, October 29, 2018, James M. Cole, counsel for Retired Justice Davis, stated a motion for continuance for filing motions and reciprocal discovery had been filed, to which the House Managers did not oppose. The Presiding Officer noted that Robin Jean Davis had retired from the office of Justice of the Supreme Court of Appeals of the State of West Virginia and there were provisions relating to this matter contained in the Rules of the West Virginia Senate While Sitting as a Court of Impeachment During the Eighty-Third Legislature and that the Constitution of West Virginia states, in part, that the removal from office is the only punishment in an impeachment [Art, IV, Sec. 9]. Senator Trump then moved that, pursuant to Rule 13 of the Rules of the West Virginia Senate While Sitting as a Court of Impeachment During the Eighty-Third Legislature, Articles II, IV, V, and XIV of the Articles of Impeachment adopted by the House of Delegates be dismissed in so far as they relate to Robin Jean Davis, Retired Justice of the Supreme Court of Appeals of West Virginia. Following extended discussion, The question being on the adoption of Senator Trump's aforestated motion, The roll being taken, the yeas were: Arvon, Baldwin, Boley, Drennan, Facemire, Gaunch, Jeffries, Palumbo, Plymale, Prezioso, Romano, Stollings, Swope, Trump, and Carmichael (Mr. President)-15. The nays were: Azinger, Beach, Blair, Boso, Clements, Cline, Ferns, Karnes, Mann, Maroney, Maynard, Ojeda, Rucker, Smith, Sypolt, Takubo, Unger, Weld, and Woelfel-19. Absent: None. So, a majority of those present and voting not having voted in the affirmative, the Presiding Officer declared Senator Trump's aforestated motion had not prevailed, 32 JOURNAL OF THE SENATE [September 11 Whereupon, the Presiding Officer stated the trial date for Retired Justice Davis would be Monday, October 29, 2018. Steven R. Ruby, counsel for Margaret L. Workman, Chief Justice of the Supreme Court of Appeals of the State of West Virginia, stated a motion had been filed to set a trial date and a briefing schedule. He also stated a motion had been filed to set a Bill of Particulars. John H. Shott, Chair of the Managers appointed by the House of Delegates, stated one of the dates in the proposed briefing schedule had already passed and the House Managers questioned the validity of certain motions under the Rules of the West Virginia Senate While Sitting as a Court of. impeachment During the Eighty-Third Legislature. Chairman Shott then stated the House Managers objected to Chief Justice Workman's motion for a Bill of Particulars. The Presiding Officer stated a Bill of Particulars was a criminal type motion and this was not a criminal trial; therefore, the motion for a Bill of Particulars was denied. The Presiding Officer recognized John H. Shott, Chair of the Managers appointed by the House of Delegates, to address the Court of Impeachment. Following a point of inquiry to the Presiding Officer, with resultant response thereto, At 3:29 p.m., the Court of Impeachment to consider proceedings against the various justices of the Supreme Court of Appeals of the State of West Virginia adjourned until Monday, October 1, 2018, at 9 a.m. p4.114ypit./.4psEFI 209 Capitol Street Charleston, WV 2001 Tel: 304.30.605 Toll Free: 877.852.0342 Fax: 504.342,1110 Benjamin L Bailey blpalleyAballeyela Ser cam RECEIVED CLERK DATE HE SENATE TIME:j.' By: September 10, 2018 01 eitil I Lee Cassis Senate. Clerk. Room 211M, Bldg, 1 State Capitol Complex Charleston, WV 25305 Re; In re Matter of Impeaehment ProceedingsAgainn.Respondent .ChielJustlee Margaret Workman Dear Cleric Cassis: Please find enclosed, for -filing in the above referenced matter, Respondent's Motion for a Bill of Particulars, A copy has been provided to all parties as indicated. on the Certificate of Service, Sine rely, Jr, min t.„ Bailey BLB/md Enclosure Honorable Paul T, Farrell cc: Honorable Roger Hanshaw Honorable Ray Bollen Honorable John Shott Honorable Rodney Miller Honorable Andrew Byrd EXHIBIT AL • DO Cd • FL, • MA • MO • NJ • NY • WV I balleyglasser,Cotn IN THE WEST VIRGINIA SENATE IN THE MA 7773R 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 RESPONDENT'S MOTION FOR A :BILL OF PARTICULARS Respondent Chief Justice Margaret Workman, by counsel, respectfully moves the Presiding Officer for a ruling that Article XIV, as presented to the Senate, is insufficient -to permit Respondent to prepare an adequate defense unless and until the Board of Managers submits a bill of particulars explaining the charges. It 18 a fundamental tenet of due process that "the accused must be fully and plainly informed of the character and cause of the accusation, The Constitution so requires. . . A bill of particulars is for the purpose of furnishing details omitted from the accusation or indictment, to which the defendant is entitled before trial," -Stale v, 'Ervin, 23.8 W. Va,17, 88, 792 S,B.2d 309, 320 (2016) (Waal and internal quotation marks omitted); s-ee. also W. Va, R, trim, p. 7(0 ("The-court may direot the filing of a bill of particulars,"), Although the word nowhere appears within its text, Article XIV appears to 'charge Respondent together With three other justices with "maladministration," an impeachment ground listed, but not-defined, in the State Constitution.. Soo. W. VA, CQNST, Art, 4, § 9. The article .alleges generally that the four justices "waste[d] state funds" in remodeling offices, coopting State,. owned vehicles for personal use, installing "unneeded" computers in their-residences, purchasing working lunches, and framing personal .iterns. The article asserts that some of those expenditures could have been avoided had the Court timely adopted travel policies, individual tax-reporting directives,and home computer policies. Funds spent in those and other categories could have been reduced, according to the article, by more exacting oversight of State purchasing cards and property inventories, by keeping better records of State vehicles, and by curtailing individual discretion with respect to purchases made by change order. The article charges that the alleged shortcomings in policy and administration constituted -a failure by all the justices, "individually and collectively," Respondent,. however, is not on trial together with the other three justices impeached bythe House of Delegates, if Respondent is declared guilty of Article XIV at the conclusion of her individual proceeding before the Senate, she alone will be subject to. removal, ASstuning, strictly arguendo, that Article XIV recites-the essential elements of "maladministration," Respondent la yet entitled-to know in advance of trial the specific acts or omissions the Board -Of Managers intends to prove, and the corresponding portions of the charge to which those acts or omissions are intended to relate. See Fed'n Window Glass Co. v. Cameron Glass co., 58 W, Va, 477, 52 S,E, 518, 52.0 (1905) ("The'.object of a bill of particulars is to specify the claim- and prevent surprise on the trial,' (citation omitted)); cf.' syl.. pt. 3, State v, Baltimore & 0, 1?, Ca,., 68 W. Va. 193 69 S,E, 703 (1910) (trial court's refusal to require bill of particulars where rail company charged with obStructing public road — but indictment failed to specify offending train and ere* — "is .prejudicial, and may be cause for reversal"). it is likewise necessary for Respondent to be. informed of the relevant time-frame underlying the charges and, depending on that temporal breadth, the theory of .culpability, That is, does the Board of Managers seek to hold Respondent constitutionally respOnSible fOr administrative acts and omissions occurring when She was but a single voting justice of the Court,. or is her potential exposure confined to the Court's alleged acts and omissions during her tenure as Chief Justice in 2015? If the latter, then is it the Board of Managers' position that Respondent's title and office of Chief Justice render her vicariously liable for actions taken by majority vote, regardless .of how she voted? Those questions suggest distinctively different means of preparing Respondent's defense to Article XIV at trial, but trial is much too late for the answers to finally be revealed. The risk of surprise and resultant prejudice is particularly palpable here, Without a particularized desciiption of the charges and theories against her, Respondent will have an inordinately Aortime to prepare to defend herself against a multiplicity of allegations, many of which, confusingly, were refuted en their face by the evidence before the House, For example, it is undisputed that Respondent "requested to develop written policies for.P.card usage" while she was Chief Justice, though those efforts were frustrated by the Administrative Director., See• Transcript of Mouse Judiciary Committee Proceeding Regarding the Impeachment of West Virginia Supteme Court Justices ("Tri .at 1691-92, 1772.75. Similarly, Respondent os Chief Justice asked that an organilational chart be developed for the Court, see Id, at 1764, repeatedly and forcefully recinoted.the Administrative Director to pinpoint the soma ofthe Court's "spend. down" of its reappropriated funds, .see id 348-49, 1227.28, and questioned. the spending on renovations to the Court's leased space at City Center East, see la 377-78., Respondent was exonerated of any wrongdoing with respect to the use of.State vehicles, see Id; 64, and the House expressly declined to impeach her for "utinecesSaty and lavish spending. in the renovation and remodeling abet personal office," Id 1953. Plainly, many of the allegations set forth in Article XIV do not apply to Respondent, But if she is nonetheless. constrained to expend valuable time and resources to defend -against those dubious accusations of wrongdoing, her defense to the remainder of Article XIV — and, indeed, to both articles of which she stands accused — will inevitably and irretrievably be prejudiced, The 3 IN THF, WEST VIRGINIA SENATE IN THE MATTER OF IMPEACHMENT PROCEEDINGS AQAMIST 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 10th day of September, 2018, a true and correct copy of the foregoing. RESPONDENT'S MOTION FOR A 13ILL OF PARTICULARS 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 Roger Hanshaw Room 408M, Bldg. 1 1900 Kanawha. Blvd. E, Charleston, WAI 25305 Honorablaitihn Shott Room 418M,BIdg. 1 1900 .Kanawha Blvd. E. Charleston, WV 25395 Honorable Ray Hellen Room 224E, Bldg. 1 1900 Kanawha Blvd. E. Charleston, WV 25305 Honerable Rodney Miller Room 150R, Bldg, 1 1900 Kanawha Blvd. E. Charleston, WV 25305 Honorable Andrew. Byrd Room 151R, Bldg. 1 1900 Kanawha Blvd...)2.,. Charleston, WV 25305 BE IIN L, BAILEY BAILEY GLASSER. 209 Capitol Street Charleston, WV 25301 Tel: 304.345,8555 Toll Free: 877,852.0342 Fax; 304.342,1110 Steve R. Ruby Oubygbellevql asser;Oni September 21, 2018 Lee Cassis Senate Clerk Room 211M, Bldg. 1 State Capitol Complex Charleston, WV 25305 Re: In re .Matter of Impeachment Proceedings Against Respondent Chief Justice Margaret Workman Dear Clerk Cassis: Please find enclosed, for filing in the above referenced matter, the following documents: 1. Joint Motion to Set Briefing Schedule 2. Chief Justice Workman's Motion to Dismiss Article IV and Article VI as Lacking Evidence of Knowledge or Intent 3. Chief Justice Workman's Motion to Dismiss Article IV and Article VI for Lack of Statutory Violation 4, Chief Justice Workman's Motion for More Definite Statement 5. Chief Justice Workman's Motion to Dismiss Article XIV as Unconstitutionally Vague 6. Chief Justice Workman's Motion to Dismiss Article XIV as Barred by Principles of Agency 7. Chief Justice Workman's Motion to Dismiss Article XIV(A) 8. Chief Justice Workman's Motion to Dismiss Article XIV(B) 9. Chief Justice Workman's Motion to Dismiss Article XIV(C) 10.Chief Justice Workman's Motion to Dismiss Article XIV(D) 11.Chief Justice Workman's Motion to Dismiss Article XIV(E) 12.Chief Justice Workman's Motion to Dismiss Article XIV(F) 13.Chief Justice Workman's Motion to Dismiss Article XIV(G) 14.Chief Justice Workman's Motion to Dismiss on Grounds Stated in Petition for Writ of Mandamus 15.Chief Justice Workman's Motion for Continuance AL • DC • DE • FL • MA • MO • NJ • NY • WV balleyglaeser.corn EXHIBIT Lee Crania September 21, 2018 Page 2 Copies have been provided to all parties as indicated on the Certificates of Service. Should you have any questions please contact me. Sincerely, SRR/md Enclosures Honorable Paul T. Farrell cc: Honorable John Shott Honorable Andrew Byrd Honorable Geoff Foster Honorable Ray Hollen Honorable Rodney Miller Chief Justice Workman AL • DC • DE • FL • MA • MO • NJ • NY • PA • WV balloyglassenoom IN SUPREME COURT OF APPEALS OF WEST VIRGINIA STATE OF WEST VIRGINIA ex rel. MARGARET L. WORKMAN, Petitioner, Civil Action No. v. MITCH CARMICHAEL, AS PRESIDENT OF THE SENATE; DONNA J. BOLEY, AS PRESIDENT PRO TEMPORE OF THE SENATE; RYAN FERNS, AS SENATE MAJORITY LEADER; LEE CASSIS, CLERK OF THE SENATE; AND THE WEST VIRGINIA SENATE, Respondents. MOTION FOR DISQUALIFICATION TO THE HONORABLE (JUSTICE PAUL T. FAR RELL: NOW COMES the Petitioner, Chief Justice Margaret L. Workman, and respe&ifully moves Your Honor to recuse himself from participating in the judgment of this matter for the following reasons: 1. The Petitioner is filing a Petition far a Writ ()Mandamus with the .Supreme Court of Appeals of West Virginia concerning the impeachment proceedings before the West Virginia Legiilature. 2. Rule 33 of the Rules of Appellate Procedure states: "Upon appearance in any case in this Court, counsel of record must inform the Clerk, by letter with a copy to the opposing parties, of any circumstance presented in the case in which a disqualifying interest of a Justice may arise under Canon 2, Rule 2:1 1".,,and that "A Justice shall disqualify himself or herself, upon proper EXHIBIT motion or sua sponte, in accordance with the provisions of Canon 2, Rule 2.11 of the Code of Judicial Conduct or, when sua sponte, for any other reason the Justice deems appropriate," 3. Rule 2.11 provides: (A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: The judge has a personal bias or prejudice concerning a party or a party's lawyer, or (1) personal knowledge of facts that are in dispute in the proceeding, (5) The judge:...(d) previously presided as a judge over the matter in another court. (emphasis • added) • 4. Your Honor is presiding over the impeachment proceedings which are the subject of the Petitioner's Petition for a Writ °Mandamus. 5. Further, Your Honor was appointed to his role as Justice of the Supreme Court of Appeals of West Virginia by the Petitioner on August 9, 2018. See Aug. 9, 2018, Administrative Order, attached as Exhibit A. 6. Appellate Rule 33 warrants recusal for the reasons listed in Judicial Canon 2.11 and for any other reason the Justice deems appropriate. The Petitioner respectfully requests that Your Honor exercise that discretion and recuse himself The Petitioner believes that recusal is appropriate because Your Honor is also presiding over the impeachment proceedings before the West Virginia Senate. Further, Your Honor was appointed to his position on the Supreme Court of Appeals of West Virginia by the Petitioner. This, at a minimum, creates a concern about the appearance of partiality for the Petitioner. The Petitioner is entitled to have her Petition for a Writ of Mandamus considered free from any question of whether those who hear her ease are impartial. The separation of the proceedings before the Senate and the proceedings in the Supreme Court of Appeals of West Virginia is of critical significance to preserve impartiality, both in actuality and 2 in appearance. This leads to the conclusion that Your Honor's impartiality might reasonably be questioned and respectfully warrants recusal. WHEREFORE, the Petitioner respectfully moves Your Honor to recuse himself in this matter. MARGARET L. WORKMAN By Counsel Marc 'illiams, Esq ire! WVSBN 4062) Molls roster Bird, EL quire (WVSBN 6588) Thomas M. Hancock, Esquire (WVSBN 10597) Christopher D. Smith, Esquire (WVSBN 13050) NELSON MULLINS RILEY & SCARBOROUGH LLP 949 Third Ave., Suite 200 Huntington, WV 25701 Phone: (304) 526-3500 Fax: '(304) 5263541 Counsel for Petitioner Supreme Court of Appeals State of West Virginia S Administrative Office 1900 Kanawha Blvd., East Bldg. 1, Room, 0-316 Charleston, West Virginia 26306 (304) 340-2306 Jennifer Bundy (304) 340-2306 April Ha rises (304) 568-1212 FAX Web Site: www.courtswv.00v Facebook: wviudiolery Twitter: WVcourts Fllckr: www.flickr.com/ohotos/courtswv/ AnnIfor.Bundy©courtswv.00v Email: Aorli.HariessOcourtswv.eov Judge Paul T. Farrell, Jr., appointed to Supreme Court For immediate release CHARLESTON, W.Va. - Judge Paul T. Farrell will serve as a Supreme Court Justice during the suspension of Justice Allen Loughry, according to an order Chief Justice Margaret Workman filed late Thursday. "Court employees have received many inquiries about whether the work of the Court will continue as scheduled in the term that begins Sept. 5. xt.will. The Court calendar is set and the docket will proceed as usual," Chief Justice Workman said. "Supreme Court Justices are Constitutionally required to keep the Court open and will continue to fulfill their Constitutional duties," Chief Justice Workman further said, Judge Farrell was appointed to the bench in the Sixth. Judicial Circuit (Cabell County) by Governor Earl Ray Tomblin on February 14, 2011, and was elected in 2012. Judge Farrell was born in Huntington. He graduated from Xavier University in 1971 and West Virginia University College of Law in 1978. At the time of his appointment to the bench he had been practicing law at Farrell, Farrell, & Farrell, PLLC, for fifteen years. He also previously served as Assistant Attorney General for West Virginia (1978), Counsel for the West Virginia Senate President (1982-1989), Administrative Law Judge at the West Virginia Department of Employment Security (1988-1990), Hearing Examiner for the West Virginia Workers' Compensation Board (1.985-1988), Adjunct Professor of Criminal Justice at Marshall University (1982-1985), Assistant Trust Officer at First Huntington National Bank (19781980), Assistant Cabell County Prosecutor (1982-1990), solo practitioner (1980-1990). and Assistant United States Attorney (1990-1995), Judge Farrell served in the U. S, Army from 1971-1973 as a First Lieutenant. Judge Farrell is active in the Huntington community, having served as Little League president and coach, youth soccer coach, high school and college soccer referee, and as a volunteer at Hospice of Huntington and Habitat for Humanity. He is married to Charlene M. Farrell and they have three sons and seven grandchildren, it# ADIVIINISTRATIVE ORDER SUPREME COURT OF APPEALS OP WEST VIRGINIA RE: ASSIGNMENT OF THE HONORABLE PAUL T. FARRELL, JUDGE OF THE SIXTH JUDICIAL CIRCUIT, TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA WHEREAS, Monis E. Ketchum., former justice of the Supreme Court of Appeals of West Virginia resigned, effective July 28, 2018. The resignation of Menis E. Ketchum. creates a vacancy on the Supreme Court of Appeals, and the notice of such vacancy was provided to the Governor of the State of West Virginia. WHEREAS, by order entered on June 8, 2018, Allen H. Lougbry h, Justice, was suspended without pay, and is prohibited from hearing any civil or criminal matter or performing any other judicial functions during the pendency of the judicial disciplinary proceedings against him..As a result of this suspension Chief justice Margaret L. Workman deems it is necessary to assign a judge to provide assistance on the Supreme Court of Appeals during the suspension of Allen H. Lougbry IL IT IS THEREFORE ORljERED, that the Honorable Paul T. Farrell,- judge of the Sixth. Judicial Circuit, be, .and he is hereby :temporarily assigned to the Supreme Court of Appeals of West Virginia under the provisions of article VIII, section 8 of the Constitution of West Virginia, with said assignment commencing on August 9, 2018 and continuing until the ChiefJustice determines that the assistance is no longer necessary. WHEREAS, Articles 6f Impeachment have been adopted. by the House Judiciary donnuittee to he presented to the House of Delegates. Pursuant to the provisions of article VIII, section 8 of the Constitution of West Virginia, and the Rule of Necessity, it is further ORDERED that if the Articles of Impeachment proceed to the Senate, the Honorable Paul T. Farrell, Judge of the Sixth Yudicial Circuit be, and is hereby assigned to the Supreme Court of Appeals of West Virginia as the _Acting Chief Justice for said impeachment proceedings. It is farther ORDERED that the Acting Chief Justice Paul T, Farrell appoint other justices to preside as needed, IT IS FINALLY ORDERED, that the Clerk of the Supreme Court of Appeals of West Virginia record this Order in the Office of said Clerk and that proceedings be held in the manner provided by law, ENTERED: 1\,4 rgat,t L, Workman Chief Yastice Attest: 44;zsezt,.0.4AJ Ed heNash GELISCX Clerk of Court RECEIVE CLERK OF E SENAT DATE:=L:UTIME: = 3 IN THE WESTNIRGINIA 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 CBGIEF JUSTICE WORKMAN'S MOTION TO DISMISS ON GROUNDS STATED IN PETITION FOR WRIT OF MANDAMUS Respondent Chief Justice Margaret L. Workman ("Respondent") has petitioned the Supreme Court of Appeals of West Virginia for a writ of mandamus with respect to the instant impeachment proceeding (the "Petition"). See Exhibit A. The Petition explains numerous infirmities in the impeachment proceeding, including violations of the constitutional separation of powers, precedent on the appointment of senior status judges, the right to due proceSs, and procedural requirements for impeachment in the House of Delegates. Respondent respectfully requests the dismissal of the Articles of Impeachment against her for the reasons stated in the Petition, which is included with this motion and incorporated by reference herein. CHIEF JUSTICE MARGARET WORKMAN By Counsel: Benjamin L. Bailey (WVSB #200) bbailey@balleyg asser.com Steven R. Ruby (WVSB #10752) sruby@baileyglasser.com Raymond S. Franks II (WVSB #6523) thanks _,balleyglasser.com Holly J. Wilson (WVSB #13060) hwilson@baileyglasser.corn BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 T: 304-345-6555 F: 304-342-1110 Counsel for Respondent EXHIBIT 09/09/2005 19;03 SUPREME COURT 4 93577039 . N0,169 PO 33a STATE OI WE.ST VIRGINIA Ata Regular Term of the Supreme Court 6f Appeals continued and held at Charleston, Kanawha .County on the day of September, 2005; the following order was made and entered; State of West Virginia ex rel. Vic Sprouse-, Individually and in his capacity as West Virginia Senate Minority Leader, Petitioner vs.) No, 32854 Joseph A, Manchin,III, -Governor -of the State of West Virginia; Earl Ray Torriblin, President of the West Virginia Senate; Robert S,. ICiss, Speaker. of the Wett Virginia House of Delegates,. respondents On a former day, to-wit, September 9; 2005, came the petitioner, Vic Sprouse, by Martin ), Wright, Jr„ his attorney, and presented to the Court his petition praying for a writ of mandamus to be directed against Joseph A. Manchin,. Governor of the Stare of West Virginia; the Honorable Earl Ray Tomblin, President of the West Virginia Senate; and the Honorable Robert S. Kite, Speaker of the West Virginia House of Delegates-, and further praying that a stay issue, as therein set forth; Upon consideration- whereof, the Court is of the of that a rule to show cause should_ be awarded herein. If is therefore considered and ordered that A. rule 'do issue, EXHIBIT 0$'09/2005 19:03 SUPREME COURT 4.93577839 MA .68 • P03. directed against the respondents and returnable before this Court at 9:00 o'clock a.m. on Monday, September 12, 2005, directing the said respondents to show cause, if any they can, why a writ of mandamuS should not be awarded.herele, as prayed for by the petitioner in his said petition, Iris further ordered that the-dffectivet*g of the .following language contained within item three of the Governer 's. Proclamation dated September 6,1005, be, -end hereby is; stayed until further order of this Court: "by an amount it to 'exceed one percent of the !sales- price' as -defined in subdivision: (35) subsection (h), section :two, article fiftnu-lr, chapter eleven of rite Code of West Virginia." Chief Justice Albright would refuse. Justice Searcher not voting. it Is finally.ordered that the respondents file-awritten reSponic to theRule To-Show Cause before 9:00-o'cleektran, -on-StindayrS.ePtember 11,-2005:- Said responses Shall he delivered as. electronic attachments: --to an email message addressed to Iroryperry@courtswvorgi, Chief justice Albright does not wish-to grant beeauseln the first instance, this is a natter between the Executive and Legislative branches, No response has been filed by the Legislative branch nor has there been any action by them that would indicate their desire to deal with the contested subject of the Call or go beyond the limited language of the Call, Accordingly,. this matter is absolutely premature. The. Legislature, hilts own right, has the ability trimalte It...judgment-as to what is constittitional and what is not. The Executive has the same right in it$ capacity: Our action:is:appropriate only when thereis a dispute 09/094005 19:03 SUPriNE COUNT 4 93077039 - NO [68 004 • between those two brariehea, Our intrusion before there is action indicating there is a dispute is obviously premature. For example, one or both houses clay elect not to- even deal With the subject, On the other hand, a dispute might arise if the Legislatureundertook to adopt a lawthat appeared to be beyond the language of the Call. As this Court has said in the past, the Legislature cannot delegate its paower to a member or a conunittee, The Legislature speaks by the bills and resolutions it adopts, Consequently, until there is action, we have nothing upon which to adjudicate; attd..our respect for their .equal constitutional standing dictates. that we :should net intrude befOre a dispute.exists. Since the Legislature. has taken no, action eentrartto the calli AO-diSpute exists;.and this Court, . by issuance of. the ride, is about to enter :upon the task of giving an Advisory opinion. Justice Starcher refuses to vote on M. Sprouse's petition at this time, First, it is absolutely premature. The Court has, in the past, consistently requested a response from an opposing litigant prior to taking any action in a matter such as that presented in this petition, Second, this Court should not be interfering with the orderly operation of the Legislative And 'Recut/Jr..branches ofi.40,*ktettti by taking. preemptive action 'with respect te.potential legislation. Our system of govenurtent provides that courts *In review legislation-after it is passed, when requeited. 'net guide•the legislative process. Therefore, I would request a response by the Executive- and the 'other respondents to the petition. Then, and only then, would I decide Whether the Supreme Court should review the issues presented in Mr, Sprouse's petition. Service of.a copy of this order upon all parties herein shall constitute sufficient 09/09/2005 19:03 SUPREME COURT 4 93577039 MO 160 notice of its contents, A True Copy Clerk, Supreme Court of Appeals POO IN THE WEST VIRGINIA SENATE IN THE MATTER OF IMPEACHME,NT PROCEEDINGS AGAINST RESPONDENT CHIEF JUSTICE MARGARET WORKMAN Honorable Paul T. Farrell Acting Justice of the Supreme Court of Appeals of West Virginia Presiding Officer :cappP_ mrcrwom moTION.FOR_CoviNVANC Respondent Chief Justice Margaret Workman, by counsel, respectfully moves the Presiding Officer to enter an order continuing the trial from its currently scheduled date until after the November 6, 2018 election. The scope and nature ofthe negative publicity which has attended every aspect of this case has created a prejudicial environment, especially in light of the upcoming election, which threatens Respondent's right to a fair and impartial impeachnient trial, It is a fundamental principle that "due process requires that the accusedreceive a trial by an inipartial jury free from outside influences," Sheppard v, Maxwell, 384 U.S, 333, 362 (196.6); see 'U.S. Const. amend. V; U.S, Const. amend. XIV; W. Va. Const, art. III, § 10, The United States Sttpreme Court has further explained that "[Oven the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused," Id, (emphasis added). And "where there is a reasonable likelihood that prejudicial news prior to trial will .prevent a fair trial, the judge should continue the case until the threat abates." Id. at 363; accord State ex rel. Tucker v, McBride, No. 11-0593, 2012 WL 3194048, *10 (W. Va. Mar. 9, 2012) ("The alleviation of negative pretrial publicity constitutes one potential ground for the granting of a continuance,"). EXHIBIT In light of the publicity surrounding this case, the timing of Chief Justice Workman's could hardly be more prejudicial. Chief Justice Workman is set to go to trial on October 15, Her trial would conclude shortly before the November 6 election, in which half the Senate will be on the ballot, Although the Senators, sitting as a Court of Impeachment, will undoubtedly make every effort to separate their consideration of the impeachment case from the effect it might have on their reelection, there is simply too great a risk that electoral considerations will influence them. WHEREFORE, Respondent respectfully requests that the Presiding Officer continue Respondent's trial until after the November 6, 2018 election. CHIEF JUSTICE MARGARET WORKMAN By Counsel: L. Bailey (WVSB ) balley.glasser.com n R. Ruby (WVSB 410752) _i'.0byrthbaileyglasser,,eeru Rayrriond S. Franks Il (WVSB #6523) :1J10- 1104tOrii Holly J. Wilson (WVSB #13060) hiNiNbabbEtile. las evicon BAILEY & OLA.SSER LLP 209 Capital Street Charleston, WV 25301 T; 304-345-6555 F; 304-342-1110 Counsel for Respondent 2 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 FOR CONTINUANCE was served by electronic mail and by depositing a true copy thereof in the United States mail, first class, postage prepaid, hi 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 151R, 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 Hellion L. Bailey (WVSB IN THE SUPREME COURT or APPEALS OF WEST .Y YTtralASH GAISETA,..GLCITA lEME COURT OF APPEALS OF WEST VII0I '1IA No. 18-0816 State of West Virginia ex rel. MARGARET L. WORXMAN, Petition el', v. MITCH CARMICHAEL, President of the West.Virginia Senate; D•ONNA BOLEY, President Po Tempore of the West Virginia Senate RYAN FERNS, Majority Leader of the West Virginia Senate; LEE CASSIS, Clerk of the West Virginia Senate; rand the WEST VIRGINIA SENATE, Respondents. JUSTICE WALKER'S RESPONSE TO REQUEST FOR STAY Although Justice Elizabeth D. Walker is not a party to this case, she is a party to the impeachment proceedings that are the subject of this case. In that capacity, she submits this response, to Chief Justice Workman's pending request for stay, Justice Walker's impeachment trial is scheduled to begin before the West Virginia Senate on October 1, 2018, at. 9:00 a.m. Justice Walker is ready, willing, and eager to present her case before the Senate. As a result, she respectfully requests that this Court not issue a stay affecting her trial, EXHIBIT Respectfully submitted, Hon. ElizabethM, Walker By Counsel Michael B, Hissam (WVSB #11526) J. Zak Ritchie (WVSB # 11705) Ryan McCune Donovan (WVSB # 11660) HISSAM FORMAN DONOVAN RECCHIEPLLC P.O. Box 3983 Charleston, WV 25339 (681) 265-.3802 office (304.) 982-8056fax mhisSam@hfdtlaw.com zritchie hfdriaw.com rdOnoVan ®hfdrlaw.com 2 CERTIFICATE OF SERVICE I certify that a copy of the foregoing was s- erved today,. September 26, 2018, by electronic mail, U.S. Mail, or both on the following: Marc. E. Williams Melissa Foster Bird Thomas M. Hancock Christopher D. Smith NELSON MULLINS RILEY & SCARBOROUGH LLP 949 Third Ave., Suite 200 Huntington, WV 25701 marc.williams@nelsomnullins,com Counsel for Petitioner KM, Mitch Carmichael Hon, Ryan Ferns Room 227M, Building 1 State Capitol Complex Charleston, WV 25305 Hon, ,Donna I. B-oley Room 206W, Building 1 State Capitol Complex Charleston, WY 25.305 Lee Cassis Room 211M, Building 1 State. Capitol Complex Charleston, WV 25305 West Virginia Senate do. Patrick Morrisey Office of the West Virginia Attorney General Room 26E, Building 1 State Capitol Complex Charleston, WV 25305 Michael B. Hissam (WVSB # 11526) 3 IN THE SUPREME COURT OF APPEALS OF WEST VIRG GAISER, CLER State of West Virginia ex rel. Margaret L. Workman, SUPREME COURT OF APPEALS OF WEST VIRGINIA Petitioner, v. No. 18-0816 Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, Respondents. MOTION FOR DISQUALIFICATION To TFIF HONORABLE JUSTICE RONALD WILSON: NOW COMES the Respondents, Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate (collectively the "West Virginia Senate" or "Respondents"), and respectfully move Your Honor to recuse himself from participating in any and all rulings in this matter for the following reasons: 1. Pursuant to Article IV, Section 9, of the West Virginia Constitution, Respondents are constitutionally designated as the Court of Impeachment for proceedings against Petitioner Margaret L. Workman ("Petitioner"). 2. Your Honor is also involved in the impeachment proceedings currently pending before the West Virginia Senate. Earlier this year, the Judicial Investigation Commission investigated ethics complaints regarding Petitioner's conduct, some of which are also the subject of the current Articles of Impeachment pending before the West Virginia Senate. 3. The Judicial Investigation Commission, with Your Honor serving as Commission Chair, broke from its traditional policy and took the "unusual step" of issuing a press release, stating that the Petitioner had been "cleared of wrongdoing." See Judicial Investigation Commission Press Release, attached as Exhibit A; see also, e.g., WSAZ News Staff, 3 W. Va. Supreme Court Justices Cleared of Ethics Complaints, WSAZ NEWS CHANNEL, https ://www.ws az. com/content/news/3 -WVa-Supreme-Court-justices - cleared- o f- ethi cscomplaints-488930021.html (last updated July 23, 2018, 5:49 PM), attached as Exhibit B. 4. Since the Judicial Investigation Commission issued its press release, Your Honor has been subpoenaed to appear and testify in related impeachment proceedings involving Justice Beth Walker. See Witness List and Subpoena to the Honorable Ronald E. Wilson, Sept. 24, 2018, attached as Exhibit C. 5. At this time, it is unclear whether Your Honor will similarly be subpoenaed to appear and testify in the impeachment proceedings against Petitioner. However, Your Honor's role as Chairman of the Judicial Investigation Commission and requested appearance in related impeachment proceedings suggests that Your Honor may very well be a witness in the impeachment proceedings against Petitioner. 6. Rule 33 of the Rules of Appellate Procedure states that a Justice "shall disqualify himself or herself, upon proper motion or sua sponte, in accordance with the provisions of Canon 2 2, Rule 2.11, of the Code of Judicial Conduct or, when sua sponte, for any other reason the Justice deems appropriate." 7. Rule 2.11(A) of the Code of Judicial Conduct provides that "a judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to ... (5) The Judge: ... (c) was a material witness concerning a matter." 8. Your Honor is listed as a potential material witness in impeachment proceedings related to Petitioner's claims and has been served with a subpoena to appear and testify in those proceedings. Furthermore, Your Honor could also be a witness in the impeachment proceedings against Petitioner. Accordingly, we respectfully request that Your Honor recuse himself from this matter pursuant to the requirements of Appellate Rule 33 and Rule 2.11 of the Code of Judicial Conduct. 9. Beyond the requirements of Rule 2.11(A)(5)(c), Your Honor's role as the Chaim an of the Judicial Investigation Commission further suggests that disqualification is warranted in this case. In the role of Chairman, Your Honor has taken the "unusual step" of making a public statement regarding the merits of ethics charges against Petitioner, many of which are the subject of the pending impeachment proceedings. Notably, Your Honor's role in both this matter and the matters of impeachment pending before the West Virginia Senate have already come into question in the media. See Brad McElhinny, Judge named to hear Justice Workman's case is also an impeachment witness, WV METRONEWS, hap ://wymetronews. com/2018/09/26/judge-is -namedto-hear-justice-workmans-case-but-is-also-an-impeachment-witness/ (Sept. 26, 2018, 9:03 AM), attached as Exhibit D. This media attention and Your Honor's previous public statements 3 regarding the alleged guilt or innocence of Petitioner raise concerns of unfair prejudice, or at least causes the appearance of partiality. As both judge and witness in the impeachment proceedings relating to this matter, Your Honor's impartiality might reasonably be questioned and further warrants recusal. WHEREFORE, the Respondents respectfully move Your Honor to disqualify himself in this matter. Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate By Counsel rk Adkins (WVSB #7414) yd E. Boone, Jr. (WVSB #8784) ichard R. Heath, Jr. (WVSB #9067) Lara Brandfass (WVSB #12962) BOWLES RICE LLP 600 Quarrier Street (25301) Post Office Box 1386 Charleston, West Virginia 25325-1386 (304) 347-1100 4 10483348.1 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA State of West Virginia ex rel. Margaret L. Workman, Petitioner, v. No. 18-0816 Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, Respondents. VERIFIED CERTIFICATE OF COUNSEL I, J. Mark Adkins, counsel for Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, do hereby verify that I have read the Motion for Disqualification of the Honorable Ronald E. Wilson; that, to the best of my knowledge, information and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification or reversal of existing law; that there is evidence sufficient to support disqualification; and, that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ark Adkins ( Se # 7414) Taken, subscribed and sworn to before me, the undersigned authority, on this ;R 1 11-f7 day of September 2018. My Commission expires: OFFICIAL SEAL NOTARY PUBLIC STATE OF WEST VIRGINIA 5 CARRIE J. GASAWAY 451 22ND STREET DUNBAR, WV 25064 Notary Public My Commission Expires Oct. 6, 2023 2 10486635.1 Judicial Investigation Commission closes complaints against Justices Davis, Walker, and Workman For immediate reledie CHARLESTON, W.Va. - The West Virginia Judicial Investigation Commission (JIC) announced today it has investigated ethics complaints against three Supreme Court Justices and closed the cases without taking any disciplinary action. Justices Robin Jean Davis *and Beth Walker and Chief Justice Margaret L. Workman agreed to the release of letters to them from the JIC informing them of the JIC's conclusions. The Complaints were opened against the Justices by Judicial Disciplinary Counsel • earlier this year. This closes all outstanding complaints against them. The JIC governs the ethical conduct of judges and is charged with determining whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct. The JIC is the same body that investigated allegations against Supreme Court 'Justice Allen Loughry and filed a 32-count statement of charges against him on June 6. JIC policy is to not acknowledge the existence of complaints against judicial officers until probable cause has been found to issue a statement of charges or an admonishment. "We are taking the unusual step of making our findings public in these cases because Supreme Court Justices are the highest judicial officers in West Virginia. It is important for the public to know that allegations against them have been thoroughly investigated, and they have been cleared of wrongdoing," said Commission Chairman Ronald Wilson, a judge in the First Judicial Circuit (Brooke, Hancock, and Ohio Counties). .The three sitting Justices voluntarily agreed to be interviewed by the JIC. The Judicial Disciplinary Counsel filed complaints against the three Justices alleging they violated Rules 1.1 ,1.2, 1.3, 3.13 and 3.15 of the Code of Judicial Conduct because they used state funds to pay for lunches for themselves, their administrative assistants, and court security officers while they were discussing cases and administrative matters in conference. The JIC found the lunches reduced the amount of time attorneys spent in court (and thus reduced legal fees). and allowed visiting judges to return to their circuits in time to do other work the same day. The working lunches made the court "run more efficiently and effectively on argument docket and administrative conference days," the letters say. The letters note that both the Internal Revenue Service and the West Virginia Ethics Commission consider paid working lunches an acceptable expense because they imprOve efficiency. The letter to Justice Walker indicated that the lunch practice was longstanding when she joined the Court on January 1, 2017. "You had no involvement in the original decision to provide working lunches on argument and administrative conference days and you had no reason to challenge the practice at the time you took office because it was well-known and well-established practice," the letter to Justice Walker states. The letters to the other Justices note that "Perhaps the only criticism that the JIC can make is that you failed to reduce the policy to writing - with well-established guidelines for the purchase of the working lunches..By failing to do this, you unnecessarily opened the EXHIBIT A door to unfair public criticism of an otherwise appropriate method for conducting the business of the Court." Letters to Chief Justice Workman and Justice Davis indicate, in footnotes, that the Commission also investigated other allegations against them and found that they did not violate the Code of Judicial Conduct. ■ Justice Davis' stops at a political rally in Parkersburg and a political event at the Raleigh County Armory while on Court business trips were "incidental to court business," the letter to Justice Davis said. "After a thorough review, the Commission believes that you did not violate the Code of Judicial Conduct since the primary purpose of the travel was for court business and the political events were ancillary, did not require additional travel, or expense payments." m Justice Davis hosted parties at her homes in Charleston and Wyoming. "The fact that you paid for the majority of the costs for the dinners associated with the Circuit Court Conferences actually saved the state money," the letter to Justice Davis says. "The costs paid for by the Court associated with the 2011 and 2013 dinners are normal costs that would have been paid by the agency for a banquet that would have been held at the hotel or at some other location in the city. After a thorough review of this evidence, the Commission also finds that there is no probable cause to charge you any violation of the Code of Judicial Conduct." ■ The Commission on Special Investigations reported to the JIC that Chief Justice Workman may have hired one or more people who worked on her 2008 judicial campaign as "ghost" employees. A ghost employee is someone who is put on the payroll but does not do any work. "Following a thorough investigation into this claim, the Judicial Investigation Commission finds there is no probable cause to charge you with a violation of the Code of judicial Conduct." Contact: Teresa A. Tarr, Chief Counsel Judicial Investigation Commission (304) 558-0169 9/26/2018 3 W.Va. Supreme Court justices cleared of ethics complaints 3 W.Va. Supreme Court justices cleared of ethics complaints By WSAZ News Staff I Posted: Mon 6:23 PM, Jul 23, 2018 I Updated: Mon 5:49 PM, Jul 23, 2018 CHARLESTON, W.Va. (WSAZ) A commission tasked with governing the ethical conduct of judges in West Virginia has cleared three justices without taking any disciplinary action. The Judicial investigation Commission (JIC) Investigated ethics complaints against state Supreme Court Justices Robin Jean Davis and Beth Walker, as well as Chief Justice Margaret L. Workman. "We are taking the unusual step of making our findings public in these cases because Supreme Court Justices are the highest judicial officers In West Virginia," said Commission Chairman. Ronald Wilson, a judge in the First Judicial Circuit. "It is important for the public to know that allegations against them have been thoroughly investigated, and they have been cleared of wrongdoing." It was the Judicial Disciplinary Counsel that opened the complaints earlier this year. The decision from the JIC closes the cases and all outstanding complaints against the justices. The state Supreme Court established the JIC. Its purpose is to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct. it is also the same organization that investigated allegations against Justice Allen Loughry and filed 32 formal charges against him on June 6. The charges stem from $363,000 worth of renovations to Loughry's office at the W.Va. State Capitol. A grand jury also indicted Loughry on more than 20 federal charges. You can read more about the investigation here. The complaints alleged Davis, Walker and Workman used state funds to pay for lunches for themselves and other court employees while they discussed cases and administrative matters in conference. https://www.weaz.00m/contentinews/3-WVa-Supreme-Court-justIces-oleared-of-ethlos-oomplaInts-488930021.html 1/2 9/26/2018 3 Ma, Supreme Court Justices cleared of ethics complaints However, the JIC determined those lunches made the court run more efficiently and effectively, It found those lunches actually reduced the amount of time attorneys spent In court, reducing legal fees, and "allowed visiting judges to return to their circuits in time to do other work the same day," The Investigation found the lunch practice was also "longstanding." In a letter to Justice Walker, the JIC stated, "You had no Involvement In the original decision to provide working lunches on argument and administrative conference days and you had no reason to challenge the practice at the time you took office because it was well-known and wellestablished practice," Letters to the other justices stated, "Perhaps the only criticism that the JIC can make is that you failed to reduce the policy to writing — with well-established guidelines — for the purchase of the working lunches. By failing to do this, you unnecessarily opened the door to unfair public criticism of an otherwise appropriate method for conducting the business of the Court," The JIC also mentioned that both the IRS and the West Virginia Ethics Commission consider paid working lunches an acceptable expense because they improve efficiency. The letters sent to the justices clearing them of wrongdoing are attached to this article under "related documents," "t Related Stories Infographic: Breakdown of the impeachment investigation Into the W.Va, Supreme Court UPDATE: Pretrial motions underway in federal case of suspended Ma, SUPCO judge w \ .okiemAgl far "IU lova a 1. rs. ghtStil MIT pit : lloi tt.,/§1 na19 • Not Oct • M ra I .!.AIIVAN4 0001.010 water • It 1:72 MIVO 470,,P9 4.1V0 $40 ;110YRSIO 41.4.01/4 Hover for Circular Hover for Circular Hover for Circular Powered by Show Comments Comments are posted from viewers like you and do not always reflect the views of this station. https://www.wsaz.com/content/news/3-WVa-Supreme-Court.Justices-cleared-of-ethics-complaints-488930021,html 2/2 RECEIVED „TE CLERK OF THE SENA DATE:tg. TIME: U. BUILDING 1, ROOM 416 1900 KANAWHA BLVD., EAST C HARLESTON, WV 20=3.0470 PHONE (304) 340.3187 JOHN,SHOTT@WVHOUSE.GOV EMAIL: JSHOTTPSHOTTLAW.COM JOHN H. SMOLT (304) 3;i3-7534 011 PO.11121-073 (0) Col:mitten: Judiciary • Chair Banking and Inaurancc Industry and Labor September 24, 2018 Lee Cass.is Clerk of the West Virginia Senate 1900 KanawhaBoulevard, East - Room M-211 State Capitol Complex Chines-ton, WV 25305 PAril Dear Mr, Clerk: Pursuant to Senate Rule No, 17, please find the attached list on behalf of the :Thud of Managers, Please call 304-340:-3252 if you 'would have ttly questions-, Respectfully, John 1-1, Shot EXHIBIT 1, Honorable Ronald B, WilsonHancock County Courthouse 102 Court Street New Cumberland, WV 26047 Time of Appearance: October 1, 2018 at 1:00 p,in, IN THE WEST VIRGINIA SENATE SECOND EXTRAORDINARY SESSION SUBPOENA in the, lvlatteref Impeachment Proceedings Against Respondent Justice Elizabeth Walker. To: Honorable Ronald E. Wilson Hancock County Courthonse 102 Court Street New Cumberland, WV 26047 YOU:. HEREBY HEREBY COIVL1VIA,NDED IN Tag NAME. OY. TEE STATE 01? WEST VIRGINIA to appear and testify before'. the West Virginia Senate sitting es the Court of Impeachment an Monday, . October 1, 2018, at 1:00 pan„ in the Senate Chamber of the West Virginia State Capitol. Entered tinder the authority of the Rules of the West Virginia Senate While Sitting as a Court of Impeachment, Requested br House lvlanagers Building 1, lioottl418 • 1900 Kanawha Boulevard, East. Charleston, West Virginia 25305 DATE ASSN'S LERK. OF THE COURT OF TivIPEACHMENT 9/28/2018 WV MetroNewa — Judge named to hear Justice Workman's oase Is also an Impeachment witness LIVE: • Hotline with Dave Weekley IliMetroNews MEN NOW! ABOUT US AFFILIATES ADVERTISING el. SEARCH THE VOICE OF WEST VIROINIA ir2111N Channel Fon* owe& Est. 1980 itattiltrtitals ■ sounntrnasners,uO. VEMIREEIMMMERIA Judge named to hear Justice Workman's case is also an impeachment witness Courtesy of Thorney Llabonnon SHARE ARTICLE . By Brad McElhinny In News I September 28, 2018 at 9:03AM CHARLESTON, W.Va. — Judge Ronald Wilson has a couple of roles in upcoming Supreme Court impeachment proceedings that may be at odds. Twoot Sharp Wilson, who serves on benches in the Northern Panhandle, was named this week to sit temporarily on the Supreme Court as it considers a petition by Chief Justice Margaret Workman to halt her impeachment trial. Assignment Order of .Judges in 18 o816 (2) DocumentCloud ADMINISTRATIVE ORDER SUPREME COURT 01? APPEALS OF WPM VMOJNJA REt AealgnmontottiroliONORAMERONALD5.WILSON, the HONORABLRIOIRS BLOOM, the HONORABLE RUDOLPH J. MURENSKY, JI} and the UONORAI3 )AC013E. RIDER} to the Suptemo Court orAppech of Weet Walt& to cote° ae set Illetket ht the proceeding styled STATE EX EEL. MAROARET L WORKMAN Weft CARMICHAEL PRESIDENT OF'HEW&STVIRGINIA SENATE, ET A Docket No.18-0816 LATEST NEWSCASTS Adios Chlet-Jouelco Jame! A. Moilsh, pursuant to Wo Court'e Soptombar 21, 201111 http://mmelronews,com/2018/09/28/Judge-Is-named-to-hear-justice-workmans-case-but-ls-also-an-Impeachment-witness/ News I Sports 1/8 9/26/2018 WV MetroNews — Judge named to hear Justice Workman's case is also an Impeachment witness tarot, 0400 Hpp4utl Ute tUttuW11.3 jutipS w mow Oh joatoxa Ott my ammo. captioned cave: 3. 2, 3, 4. Honorable Ronald B. Wilson, judge ditto First Judicial Circuit Honorable Louis Blootnjudge of the Thirteenthindlcial (Brook Honorable Ruclolphi. Muronsky, "[Judge of thefilahtJudIclal Circuit lionorablejacob B. Roger, judge of the Twenty -Sixth judicial Circuit It. is, therefore 011DBRBD, that Judges Wilson, Bloom, Mumisky, andltegor, shall be, sad they hereby are, temporarily assigned to the Supremo Court of Appeals of West Virginia, under the provisions of Article VIII, Sections 2 and 8 of the Constitution of West Virginia, for the • purposes of consideration and deliberation dam above-captioned ease; cod ft la farther ORDERED, that the Clerk of the Supremo Court of Appeals of WeatViralnia record this Outer in the Office of the Clock and that proceedings he held iu the manner provided by law. BNIIIREDI September 24, 2818 jAh41! lefJus cc c:44 , Attest: /r4Wk lidyth Nrish Calm, Clerk of Cove Contributed to DocontentCloud by Brad McElhinny of WV MetroNews • View document But Wilson has also been named as a potential witness in the impeachment trial of Justice Beth Walker, which is to start Monday. Wilson's subpoena says he should appear at t p.m, Monday. To print the document, click the "Original Document" link to open the original PDF. At this time it is not possible to print the document with annotations, LATEST NEWSCASTS News I Sports http://wymetronews.com/2018/09/26/Judge-ls-named-to-hear-JustIce-workmans-case-but-Is-also-an-Impeachment-wItness/ 2/8 9/26/2018 WV MetroNews — Judge named to hear Justice Workman's case is also an Impeachment witness Wilson wasn't immediately available to answer questions about how he could square the two roles. His role as a witness at that trial is likely due to yet another position he holds, as the lead judge on West Virginia's Judicial Investigation Commission. That body has been a significant element of the ongoing impeachment proceedings already. Ronald Wilson The Judicial Investigation Commission in June • named Justice Allen Loughry in 32 charges relating to his conduct on the Supreme Court, The charges were a major factor kicking off the impeachment in the Legislature. • Even more relevant to the Senate trials of justices Workman and Walker is the Judicial Investigation Commission's July conclusion that it had closed ethics complaint cases against those justices plus them-Justice Robin Davis, taking no action against them. The commission was investigating complaints alleging the three justices used state funds to pay for lunches for themselves, their administrative assistants and court security officers while they were discussing cases and administrative matters in conference. The commission said in letters to the justices that it found the lunches reduced the amount of time attorneys spent in court, reducing legal fees, and allowed visiting judges to return to their circuits in time to do other work the same day. The commission, in a press release, said its policy is to not acknowledge the existence of complaints until probable cause has been found to issue a statement of charges or an admonishment. "We are taking the unusual step of making our findings public in these eases," Wilson stated in that release "because Supreme Court justices are the highest judicial officers in West Virginia. It is important for the public to know that allegations against them have been thoroughly investigated, and they have been cleared of wrongdoing." Workman on Friday filed a petition with the very Supreme. court that she serves on, challenging the legality of impeachment proceedings in the House of Delegates and requesting a stay of impeaclunent trial in the Senate. Workman issued an order disqualifying herself from hearing her own petition for writ of mandamus. The judges to hear her petition include Wilson, Judge Duke Bloom of Kanawha County, Judge Rudolph Murensky of McDowell County and Judge Jacob .Reger of Upshur County, Lawyers for the state Senate have been asked to file a response by Oct. 3. After that, the acting court could consider the case, Delegates voted to impeach Workman alone with the other hitp://wymetronews,com/2018/09/26/Judge-ls-named-to-hear-JustIce-workmans-case-but-ls-also-an-Impeachment-wItness/ LATEST NEWSCASTS News I Sports 3/8 9/26/2018 WV MetroNews — Judge named to hear Justice Workman's case is also an Impeachment witness remaining members of the state Supreme Court on August 13 on allegations that they had overstepped their authority and committed acts of maladministration, Workman is set for a trial in the Senate starting Oct. 15, "When they issue that writ of mandamus, the first thing on my mind was the Supreme Court would probably issue what is called a stay order," said Delegate Andrew Byrd, 0-Kanawha, who is a lawyer and one of the impeachment managers from the House of Delegates, "If they issue a stay order, I don't know hovi quick they can get something turned around before her trial date." Andrew Byrd Workman's petition for writ of mandamus with the Supreme Court names Senate President Mitch Carmichael, Senate pro tempore Donna Boloy, Senate Majority Leader Ryan Ferns, Senate Clerk Lee Cassis and the rest of the Senate, Appearing today on "58o Live" on WCIIS Radio, Carmichael, R-Jackson, said the case at its heart is about the Legislature's constitutional power of impeachment. "Any clear-head.e,C1 understanding of the constitution will result in one ruling on this, that this is in the Legislature's purview," Carmichael said. Mitch Carmichael "We'll see how the rulings come down and we'll react accordingly," Brad McElhinny brad.moelhinny@wvmetronowe.com (rp,BrecIMGEihInny Brad McElhinny Is the statewide correspondent for MelroNews. Brad le a Parkersburg native who spent more than 20 years at the Charleston Daily Mall,Contect him at bracl.incelhinnyQwymetronews.corn or on Twitter BradMeElhInny 1.14100.6•:mamminputii Use a Facobook account to add a comment, subject to Facebooli'a Torino of florvico and Prlyaoy Policy, 1114111 Commute 4 Comments Acid Sort by l Newest el comment... ni Rodger Cottrill r Birds of a feather stlok together Like Reply 5h Olive Hasham No Justice In these witch hunts. No WV justice or attorney should hear or decide these cases, http://wymetronews,com/201 8/09126/J udg named-to-hearjustloe-workmans-oase-but-ls-also-an-Im peaohment-wltness/ LanrWr NUMOMTEt News I Sports 4/8 9 /26/2018 WV MetroNews — Judge named to hear Justice Workman's case IS also an impeachment witness Like • Reply • sh Mike Ballburn Flow about this headline: Judge overseeing Impeachment case APPOINTED by Margaret Workman? How is that ethical? Like • Reply • 1 • 2h • Edited Aaron Shots a version of the West Virginia Supreme Court will rule on this issue, It will ultimately be decided by the United States • Supreme Gait Given the ramifications of the actions undertaken by a clearly partisan legislature, that Is how It should be, 11 While Like Reply • 1 • 511 SP McGinnis The issue has already been decided, The case was the federal appeal by former Pennsylvania Supreme Court Justice Rolf Larsen back in the 1990's. It was decdided that any state legislature has absolute legislative Immunity when It comes to impeachment/removal. The "Impeachment" power cannot be reviewed by any court state or federal - since that power Is granted exclusively to the Legislature and the only people who can review that action are the voters. The "ramifications" are completely irrelevant, Like • Reply • Aaron 1 • 3h Staats SP McGinnis Justice Workman's lawyers disagree with you, Perhaps It Is because your analysis Is wrong, Larsen was convicted of illegally obtaining prescription drugs and refused to step down while appealing his conviction, The PA Legislature Impeached him, as they should have and PA voters subsequently changed their state constitution that "created a due process system for Judges through a state Judicial Conduct Board, which independently investigates misconduct complaints, and a Court of Judicial Discipline, which Independently determines a Pennsylvania Judge's Innocence or guilt." Of course, if you have a link to this alleged federal case that grants absolute immunity to one political body, I would love to read It as that goes against the very foundation of our co-equal branches of government that's been around since the 18th century. Like • Reply • 3h Facebook Comments Plugin Advertise with Us Contact Careers EEO Affiliates Intranet Privacy Policy Mobile Site Subscribe to Email Alerts 5120113 West Virginia klettoNews Network -1111 Virginia Street East, Charleston, WV 235301 GGt jigs , --'Garqe Play. • Detnfood an th4 - App mot , I 1 POIMalitly http://wvmetronews.com/2018/09126/Judge-is-named-to-hear-JustIce-workmans-case-but-is-also-en-Impeachment-witness/ LATEST NEWSCASTS News I Sports 5/8 CERTIFICATE OF SERVICE I, J. Mark Adkins, counsel for Mitch Carmichael, President of the West Virginia Senate; Donna J. Boley, President Pro Tempore of the West Virginia Senate; Ryan Ferns, Majority Leader of the West Virginia Senate; Lee Cassis, Clerk of the West Virginia Senate; and the West Virginia Senate, do hereby certify that service of the foregoing RESPONSE IN OPPOSITION TO PETITIONER'S REQUEST FOR STAY and MOTION FOR DISQUALIFICATION has been made upon counsel of record by United States mail, postage pre-paid and via e-mail to the following on this 27th day of September, 2018: Marc Williams, Esquire Melissa Foster Bird, Esquire Thomas M. Hancock, Esquire Christopher D. Smith, Esquire Nelson Mullins Riley & Scarborough, LLP 949 Third Avenue, Suite 200 Huntington, West Virginia 25701 Email: Marc.Williams@nelsonmullins corn 15