SER Margaret L. Workman v. Mitch Carmichael, as President of the Senate , 819 S.E.2d 251 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
SEPTEMBER 2018 TERM
_____________ FILED
October 11, 2018
No. 18-0816 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_____________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel. MARGARET L. WORKMAN,
Petitioner
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
____________________________________________________________________
WRIT OF PROHIBITION GRANTED
____________________________________________________________________
Filed: October 11, 2018
Marc E. Williams J. Mark Adkins
Melissa Foster Bird Floyd E. Boone, Jr.
Thomas M. Hancock Richard R. Heath, Jr.
Christopher D. Smith Lara Brandfass
Nelson Mullins Riley & Scarborough Bowles Rice
Huntington, West Virginia Charleston, West Virginia
Attorneys for Petitioner Attorneys for Respondents
ACTING CHIEF JUSTICE JAMES A. MATISH delivered the Opinion of the
Court.
ACTING JUSTICE LOUIS H. BLOOM concurs in part and dissents in part and
reserves the right to file a separate opinion.
ACTING JUSTICE JACOB E. REGER concurs in part and dissents in part and
reserves the right to file a separate opinion.
CHIEF JUSTICE WORKMAN is disqualified.
JUSTICE ALLEN H. LOUGHRY II suspended, therefore not participating
JUSTICE ELIZABETH WALKER is disqualified.
JUSTICE PAUL T. FARRELL sitting by temporary assignment is disqualified.
JUSTICE TIM ARMSTEAD did not participate.
JUSTICE EVAN JENKINS did not participate.
ACTING JUSTICE RUDOLPH J. MURENSKY, II, and ACTING JUSTICE
RONALD E. WILSON sitting by temporary assignment.
SYLLABUS BY THE COURT
1. In the absence of legislation providing for an appeal in an
impeachment proceeding under Article IV, § 9 of the Constitution of West Virginia, this
Court does not have jurisdiction over an appeal of a final decision by the Court of
Impeachment.
2. An officer of the state who has been impeached under Article IV, § 9
of the Constitution of West Virginia, may seek redress for an alleged violation of his or
her constitutional rights in the impeachment proceedings, by filing a petition for an
extraordinary writ under the original jurisdiction of this Court.
3. To the extent that syllabus point 3 of State ex rel. Holmes v.
Clawges, 226 W. Va. 479, 702 S.E.2d 611 (2010) may be interpreted as prohibiting this
Court from exercising its constitutional authority to issue an extraordinary writ against
the Legislature when the law requires, it is disapproved.
4. West Virginia Code § 51-9-10 (1991) violates the Separation of
Powers Clause of Article V, § 1 of the West Virginia Constitution, insofar as that statute
seeks to regulate judicial appointment matters that are regulated exclusively by this Court
i
pursuant to Article VIII, § 3 and § 8 of the West Virginia Constitution. Consequently,
W.Va. Code § 51-9-10, in its entirety, is unconstitutional and unenforceable.
5. This Court has exclusive authority and jurisdiction under Article
VIII, § 8 of the West Virginia Constitution and the rules promulgated thereunder, to
sanction a judicial officer for a violation of a Canon of the West Virginia Code of Judicial
Conduct. Therefore, the Separation of Powers Clause of Article V, § 1 of the West
Virginia Constitution prohibits the Court of Impeachment from prosecuting a judicial
officer for an alleged violation of the Code of Judicial Conduct.
6. The Due Process Clause of Article III, § 10 of the Constitution of
West Virginia requires the House of Delegates follow the procedures that it creates to
impeach a public officer. Failure to follow such rules will invalidate all Articles of
Impeachment that it returns against a public officer.
ii
Matish, Acting Chief Justice:
The Petitioner, the Honorable Margaret L. Workman, Chief Justice of the Supreme
Court of Appeals of West Virginia, brought this proceeding under the original
jurisdiction of this Court as a petition for a writ of mandamus that seeks to halt
impeachment proceedings against her. The Respondents named in the petition are the
Honorable Mitch Carmichael, President of the Senate; the Honorable Donna J. Boley,
President Pro Tempore of the Senate; the Honorable Ryan Ferns, Senate Majority Leader;
the Honorable Lee Cassis, Clerk of the Senate; and the West Virginia Senate.1 The
Petitioner seeks to have this Court prohibit the Respondents from prosecuting her under
three Articles of Impeachment returned against her by the West Virginia House of
Delegates. The Petitioner has briefed the following issues to support her contention that
1
It will be noted that the Petitioner failed to name as a respondent the Acting Chief
Justice, the Honorable Justice Paul T. Farrell, that is presiding over the impeachment
proceeding that she seeks to halt. Ordinarily the judicial officer presiding over a
proceeding that is being challenged is named as a party in a proceeding in this Court.
However, the omission of Acting Chief Justice Farrell as a named party in this matter is
not fatal to the relief that is being requested. Pursuant to rules adopted by the Senate to
govern the impeachment proceedings, the Acting Chief Justice was stripped of his
judicial authority over motions, objections and procedural questions. This authority was
removed under Rule 23(a) of Senate Resolution 203 as follows:
All motions, objections, and procedural questions made by the parties shall
be addressed to the Presiding Officer [Acting Chief Justice], 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.
As a result of Rule 23(a) Acting Chief Justice Farrell is not an indispensible party to this
proceeding.
1
she is entitled to the relief sought. The Petitioner has alleged several issues which we
have distilled to the essence as alleging that the Articles of Impeachment against her
violate the Constitution of West Virginia because (1) an administrative rule promulgated
by the Supreme Court supersede statutes in conflict with them; (2) the determination of a
violation of the West Virginia Code of Judicial Conduct rests exclusively with the
Supreme Court; (3) the Articles of Impeachment were filed in violation of provisions of
House Resolution 201. Upon careful review of the briefs, the appendix record, and the
applicable legal authority, we grant relief as outlined in this opinion.2
INTRODUCTION
Although the Petitioner in this matter requested oral argument under Rule 20 of
the Rules of Appellate Procedure, and even though this case presents issues of first
impression, raises constitutional issues, and is of fundamental public importance, the
Respondents, however, waived that right as follows:
Oral argument is unnecessary because no rule to show cause is warranted.
This case presents the straightforward application of unambiguous
provisions of the Constitution of West Virginia that, under governing
precedent of this Court, the Supreme Court of the United States and courts
across the nation unquestionably affirm the West Virginia Senate’s role as
the Court of Impeachment.
2
We are compelled at the outset to note that this Court takes umbrage with the tone of the
Respondents brief, insofar as it asserts “that a constitutional crisis over the separation of
powers between the Legislature and Judicial Branches” would occur if this Court ruled
against them. This Court is the arbiter of the law. Our function is to keep the scales of
justice balanced, not tilted in favor of a party out of fear of retribution by that party. We
resolve disputes based upon an unbiased application of the law.
2
This Court further notes that the Respondents declined to address the merits of the
Petitioner’s arguments. The Respondents stated the following:
At the outset, it important to note that Respondents take no position with
respect to facts as laid out by Petitioner, or the substantive merits of the
legal arguments raised in the Petition. In fact, it is constitutionally
impermissible for Respondents to do so, as they are currently sitting as a
Court of Impeachment in judgment of Petitioner for the allegations made in
the Articles adopted by the House.
The Respondents have not cited to any constitutional provision which prevents them from
responding directly or through the Board of Managers (the prosecutors), to the merits of
the Petitioner’s arguments. It is expressly provided in Rule 16(g) of the Rules of
Appellate Procedure that “[i]f the response does not contain an argument in response to a
question presented by the petition, the Court will assume that the respondent agrees with
the petitioner’s view of the issue.” In light of the Respondent’s waiver of oral argument
and refusal to address the merits of the Petitioner’s arguments, this Court exercises its
discretion to not require oral argument and will rule upon the written Petition, Response,
Reply, and various appendices.3
Our forefathers in establishing this Country, as well as the leaders who established
the framework for our State, had the forethought to put a procedure in place to address
issues that could arise in the future; in the ensuing years that system has served us well.
What our forefathers did not envision is the fact that subsequent leaders would not have
3
This Court is aware that transparency is important. However, the Respondents have
closed the door on themselves by declining to have oral arguments and taking the
untenable position of not responding to the merits of the arguments. This Court would
have appreciated well-researched arguments from the Respondents on the merits of the
issues.
3
the ability or willingness to read, understand, or to follow those guidelines. The problem
we have today is that people do not bother to read the rules, or if they read them, they
decide the rules do not apply to them.
There is no question that a governor, if duly qualified and serving, can call a
special session of the Legislature. There is no question that the House of Delegates has
the right to adopt a Resolution and Articles of a Bill of Impeachment. There is no
question that the Senate is the body which conducts the trial of impeachment and can
establish its own rules for that trial and that it must be presided over by a member of this
Court. This Court should not intervene with any of those proceedings because of the
separation of powers doctrine, and no one branch may usurp the power of any other co-
equal branch of government. However, when our constitutional process is violated, this
Court must act when called upon.
Fundamental fairness requires this Court to review what has happened in this state
over the last several months when all of the procedural safeguards that are built into this
system have not been followed. In this case, there has been a rush to judgment to get to a
certain point without following all of the necessary rules. This case is not about whether
or not a Justice of the Supreme Court of Appeals of West Virginia can or should be
impeached; but rather it is about the fact that to do so, it must be done correctly and
constitutionally with due process. We are a nation of laws and not of men, and the rule of
law must be followed.
By the same token, the separation of powers doctrine works six ways. The Courts
may not be involved in legislative or executive acts. The Executive may not interfere
4
with judicial or legislative acts. So the Legislature should not be dealing with the Code of
Judicial Conduct, which authority is limited to the Supreme Court of Appeals.
The greatest fear we should have in this country today is ourselves. If we do not
stop the infighting, work together, and follow the rules; if we do not use social media for
good rather than use it to destroy; then in the process, we will destroy ourselves.
I.
FACTUAL AND PROCEDURAL HISTORY
The Petitioner was appointed as a judge to the Circuit Court of Kanawha County,
by former Governor John D. Rockefeller, IV, on November 16, 1981. She was later
elected in 1982 by the voters to fill out the remainder of the unexpired term of her
appointment. She was subsequently elected again in 1984 for a full term. In 1988, the
Petitioner was elected by the voters to fill a vacancy on the West Virginia Supreme Court
of Appeals. She served a full term and left office in 2000. The Petitioner ran again for a
position on the Supreme Court in 2008 and won.
In late 2017, the local media began publicizing reports of their investigations into
the costs for renovating the offices of the Supreme Court Justices. Those publicized
reports led to an investigation by the Legislative Auditor into the spending practices of
the Supreme Court in general. The Auditor’s office issued a report in April of 2018. This
report was focused on the conduct of Justice Allen Loughry and Justice Menis Ketchum.
The report concluded that both Justices may have used state property for personal gain in
violation of the state Ethics Act. The report indicated that the matter was referred to the
5
West Virginia Ethics Commission for further investigation.4 In June of 2018 the Judicial
Investigation Commission charged Justice Loughry with 32 violations of the Code of
Judicial Conduct and the Rules of Professional Conduct. Justice Loughry was
subsequently indicted by the federal government on 22 charges.5
On June 25, 2018, Governor Jim Justice issued a Proclamation calling the
Legislature to convene in a second extraordinary session to consider the following:
First: Matters relating to the removal of one or more Justices of the
Supreme Court of Appeals of West Virginia, including, but not limited to,
censure, impeachment, trial, conviction, and disqualification; and
Second: Legislation authorizing and appropriating the expenditure of public
funds to pay the expenses for the Extraordinary Session.
Pursuant to this Proclamation, the Legislature convened on June 26, 2018, to carry out
the task outlined therein.
The record indicates that on June 26, 2018, the House of Delegates adopted House
Resolution 201. This Resolution empowered the House Committee on the Judiciary to
investigate impeachable offenses against the Petitioner and the other four Justices of the
Supreme Court.6 Under the Resolution, the Judiciary Committee was required to report to
the House of Delegates its findings of facts and any recommendations consistent with
4
The Auditor’s office issued a second report involving the Petitioner, Justice Robin
Davis and Justice Elizabeth Walker. That report did not recommend an ethics
investigation of those Justices.
5
Additional charges were later brought against Justice Loughry. He was suspended from
office.
6
On July 11, 2018 Justice Ketchum resigned/retired effective July 27, 2018. As a result
of his decision the Judiciary Committee did not consider impeachment offenses against
him.
6
those findings of fact; and, if the recommendation was that of impeachment of any of the
Justices, the Committee had to present to the House of Delegates a proposed resolution of
impeachment and proposed articles of impeachment. Upon receipt of a proposed
Resolution of Impeachment and Articles of Impeachment by the House of Delegates,
Resolution 201 authorized the House to adopt a Resolution of Impeachment and formal
articles of impeachment as prepared by the Judiciary Committee, and deliver the same to
the Senate for consideration.
The Judiciary Committee conducted impeachment hearings between July 12, 2018
and August 6, 2018. On August 7, 2018, the Judiciary Committee adopted fourteen
Articles of Impeachment. The Petitioner was named in four of the Articles of
Impeachment. On August 13, 2013, the House of Delegates voted to approve only eleven
of the Articles of Impeachment. The Petitioner was impeached on three of the Articles of
Impeachment.7 First, the Petitioner and Justice Davis were named in Article IV,8 which
alleged that they improperly authorized the overpayment of senior-status judges.9 Second,
the Petitioner was named exclusively in Article VI, which alleged that she improperly
authorized the overpayment of senior-status judges.10 Third, the Petitioner was named,
along with three other justices, in Article XIV, which set out numerous allegations
7
Justice Walker was named in 1 Article; Justice Davis was named in 4 Articles; and
Justice Loughry was named in 7 Articles.
8
Justice Davis retired from office on August 13.
9
The text of the Article is set out in the Discussion section of the opinion.
10
The text of the Article is set out in the Discussion section of the opinion.
7
against them which included charges that they failed to implement various administrative
policies and procedures.11
Subsequent to the House of Delegates’ adoption of the Articles of Impeachment
they were submitted to the Senate for the purpose of conducting a trial. On August 20,
2018 the Senate adopted Senate Resolution 203, which set forth the rules of procedure for
the impeachment trial. A pre-trial conference was held on September 11, 2018. At that
conference the Petitioner, Justice Walker, and the Board of Managers submitted a
“Proposed Stipulation and Agreement of Parties” that would have required the charges
against both of them be dismissed.12 The Senate voted to reject the settlement offer.
Thereafter Acting Chief Justice Farrell set a separate trial date for the Petitioner on
October 15, 2018. The Petitioner subsequently filed this proceeding to have the Articles
of Impeachment against her dismissed.
II.
THIS COURT’S JURISDICTION TO ADDRESS CONSTITUTIONAL
ISSUES ARISING FROM THE COURT OF IMPEACHMENT
Before we examine the merits of the issues presented we must first determine
whether this Court has jurisdiction over issues arising out of a legislative impeachment
11
The text of the Article is set out in the Discussion section of the opinion.
12
The Board of Managers are “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.” Rule 1,
Senate Resolution 203.
8
proceeding. The Respondents contend that this Court does not have jurisdiction over the
impeachment proceeding.13 This is an issue of first impression for this Court.
Resolution of this issue requires an analysis of constitutional principles. In
undertaking our analysis we are reminded that the United States Supreme Court stated in
Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962), that the
determination of whether a matter is exclusively committed by the constitution to another
branch of government “is itself a delicate exercise in constitutional interpretation and is a
responsibility of this Court as ultimate interpreter of the Constitution.” We are also
guided by the principle that
A constitution is the fundamental law by which all people of the state are
governed. It is the very genesis of government. Unlike ordinary legislation,
a constitution is enacted by the people themselves in their sovereign
capacity and is therefore the paramount law.
State ex rel. Smith v. Gore, 150 W.Va. 71, 77, 143 S.E.2d 791, 795 (1965). Further,
13
One of the arguments made by the Respondents is that this Court should not address
the merits of the Petitioner’s arguments, because she has raised a similar challenge to the
Articles of Impeachment in the proceeding pending before them that has not been ruled
upon. Ordinarily this Court would defer to a lower tribunals ruling on a matter before this
Court will address it. However, we have carved out a narrow exception to this general
rule. In this regard, we have held that “[a] constitutional issue that was not properly
preserved at the trial court level may, in the discretion of this Court, be addressed on
appeal when the constitutional issue is the controlling issue in the resolution of the case.”
Syl. pt. 2, Louk v. Cormier, 218 W.Va. 81, 622 S.E.2d 788 (2005). See Simpson v. W.
Virginia Office of Ins. Com'r, 223 W. Va. 495, 504, 678 S.E.2d 1, 10 (2009)
(“Nevertheless, we may consider this constitutional issue for the first time on appeal
because it is central to our resolution of this case.”); State v. Allen, 208 W. Va. 144, 151
n.12, 539 S.E.2d 87, 94 n.12 (1999) (“this Court may, under the appropriate
circumstances, consider an issue initially presented for consideration on appeal.”). We
exercise our discretion to address the merits of the constitutional issues presented in this
matter. See also, State ex rel. Bd. of Educ. of Kanawha Cty. v. Casey, 176 W. Va. 733,
735, 349 S.E.2d 436, 438 (1986) (recognizing that exhaustion of an alternative remedy is
not required “where resort to available procedures would be an exercise in futility.”).
9
It is axiomatic that our Constitution is a living document that must be
viewed in light of modern realities. Reasonable construction of our
Constitution ... permits evolution and adjustment to changing conditions as
well as to a varied set of facts.... The solution [to problems of constitutional
interpretation] must be found in a study of the specific provision of the
Constitution and the best method [under current conditions] to further
advance the goals of the framers in adopting such a provision.
State ex rel. McGraw v. Burton, 212 W. Va. 23, 36, 569 S.E.2d 99, 112 (2002) (internal
quotation marks and citation omitted).
As an initial matter, we observe that “[q]uestions of constitutional construction are
in the main governed by the same general rules applied in statutory construction.” Syl. pt.
1, Winkler v. State Sch. Bldg. Auth., 189 W.Va. 748, 434 S.E.2d 420 (1993). We have
held that “[t]he object of construction, as applied to written constitutions, is to give effect
to the intent of the people in adopting it.” Syl. pt. 3, Diamond v. Parkersburg–Aetna
Corp., 146 W.Va. 543, 122 S.E.2d 436 (1961). This Court held in syllabus point 3 of
State ex rel. Smith v. Gore, 150 W. Va. 71, 143 S.E.2d 791 (1965) that “[w]here a
provision of a constitution is clear in its terms and of plain interpretation to any ordinary
and reasonable mind, it should be applied and not construed.” Therefore, “[i]f a
constitutional provision is clear in its terms, and the intention of the electorate is clearly
embraced in the language of the provision itself, this Court must apply and not interpret
the provision.” Syl. pt. 1, State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122(1953). On the other hand, “if the language of the constitutional provision is ambiguous,
then the ordinary principles employed in statutory construction must be applied to
ascertain such intent.” State ex rel. Forbes v. Caperton, 198 W.Va. 474, 480, 481 S.E.2d
780, 786 (1996) (internal quotations and citations omitted). An ambiguous provision in a
10
constitution “requires interpretation consistent with the intent of both the drafters and the
electorate.” State ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 127, 207 S.E.2d
421, 436-437 (1973). Although we are empowered with the authority “to construe,
interpret and apply provisions of the Constitution, ... [we] may not add to, distort or
ignore the plain mandates thereof.” State ex rel. Bagley v. Blankenship, 161 W.Va. 630,
643, 246 S.E.2d 99, 107 (1978).
It is axiomatic that “in every case involving the application or interpretation of a
constitutional provision, analysis must begin with the language of the constitutional
provision itself.” State ex rel. Mountaineer Park, Inc. v. Polan, 190 W.Va. 276, 283, 438
S.E.2d 308, 315 (1993). The framework for impeaching and removing an officer of the
state is set out under Article IV, § 9 of the Constitution of West Virginia. The full text of
Section 9 provides as follows:
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
and no person shall be convicted without the concurrence of two thirds of
the members elected thereto. When sitting as a court of impeachment, the
president of the supreme court of appeals, or, if from any cause it be
improper for him to act, then any other judge of that court,14 to be
designated by it, shall preside; and the senators shall be on oath or
affirmation, to do justice according to law and evidence. Judgment in cases
of impeachment shall not extend further than to removal from office, and
disqualification to hold any office of honor, trust or profit, under the state;
but the party convicted shall be liable to indictment, trial judgment, and
punishment according to law. The Senate may sit during the recess of the
Legislature, for the trial of impeachments.
14
“Prior to the Judicial Reorganization Amendment [of 1974], the Justices of the Court
were referred to as ‘Judges’ and the Chief Justice was referred to as ‘President.’” State v.
McKinley, 234 W. Va. 143, 150 n.3, 764 S.E.2d 303, 310 n.3 (2014).
11
Pursuant to Section 9 “[t]he House of Delegates has the sole power of impeachment, and
the Senate the sole power to try impeachments.” Slack v. Jacob, 1875 W.L. 3439, 8 W.
Va. 612, 664 (1875). To facilitate the trial of an impeachment proceeding Section 9
created a Court of Impeachment.
It is clear from the text of Section 9 that it does not provide this Court with
jurisdiction over an appeal of a final decision by the Court of Impeachment.15
Consequently, and we so hold, in the absence of legislation providing for an appeal in an
impeachment proceeding under Article IV, § 9 of the Constitution of West Virginia, this
Court does not have jurisdiction over an appeal of a final decision by the Court of
Impeachment.
Although it is clear that an appeal is not authorized from a decision by the Court of
Impeachment, we do find under the plain language of Section 9, the actions or inactions
of the Court of Impeachment may be subject to a proceeding under the original
jurisdiction of this Court.16 The authority for this proposition is contained in the Law and
Evidence Clause found in Section 9, which states: “the senators shall … do justice
according to law and evidence.” The Law and Evidence Clause of Section 9 uses the
word “shall” in requiring the Court of Impeachment to follow the law. We have
15
The Constitution of West Virginia grants authority to the Legislature to provide
appellate jurisdiction to this Court for areas of law that are not set out in the constitution.
See W.Va. Const. Art. VIII, § 3 ([The Supreme Court] “shall have such other appellate
jurisdiction, in both civil and criminal cases, as may be prescribed by law.”).
16
Article VIII, § 3 of the Constitution of West Virginia provides that “[t]he supreme
court of appeals shall have original jurisdiction of proceedings in habeas corpus,
mandamus, prohibition and certiorari.”
12
recognized that “[t]he word ‘shall,’ ... should be afforded a mandatory connotation[,] and
when used in constitutions and statutes, [it] leaves no way open for the substitution of
discretion.” Silveti v. Ohio Valley Nursing Home, Inc., 240 W. Va. 468, 813 S.E.2d 121,
125 (2018) (internal quotation marks and citations omitted). See Syl. pt. 3, State ex rel.
Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953) (“As used in constitutional
provisions, the word ‘shall’ is generally used in the imperative or mandatory sense.”).
Insofar as the Law and Evidence Clause imposes a mandatory duty on the Court of
Impeachment to follow the law, there is an implicit right of an impeached official to have
access to the courts to seek redress, if he or she believes actions or inactions by the Court
of Impeachment violate his or her rights under the law.17
17
It must be clearly understood that the Law and Evidence Clause is not superfluous
language. Under the 1863 Constitution of West Virginia the impeachment provision was
set out in Article III, § 10. The original version of the impeachment provision did not
contain a Law and Evidence Clause. The 1863 version of the impeachment provision read
as follows:
Any officer of the State may be impeached for maladministration,
corruption, incompetence, 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.
When sitting for that purpose, the senators shall be on oath or affirmation;
and no persons shall be convicted without the concurrence of two-thirds of
the members present. Judgment in cases of impeachment shall not extend
further than to removal from office and disqualification to hold any office
of honor, trust or profit, under the State; but the party convicted shall,
nevertheless, be liable and subject to indictment, trial judgment, and
punishment according to law. The Senate may sit during the recess of the
legislature, for the trial of impeachments.
The Law and Evidence Clause was specifically added to the impeachment provision in
the constitution of 1872. The affirmative creation and placement of the Law and
Evidence Clause in the new constitution supports the significance this Court has given to
that clause. A similar Law and Evidence Clause appears in the impeachment laws of 11
13
The implicit right of redress in the courts found in the Law and Evidence Clause,
is expressly provided for in Article III, § 17 of the Constitution of West Virginia. Section
17 provides as follows:
The courts of this state shall be open, and every person, for an injury done
to him, in his person, property or reputation, shall have remedy by due
course of law; and justice shall be administered without sale, denial or
delay.
The Certain Remedy Clause of Section 17 has been found to mean that “[t]he framers of
the West Virginia Constitution provided citizens who have been wronged with rights to
pursue a remedy for that wrong in the court system.” Bias v. E. Associated Coal Corp.,
220 W. Va. 190, 204, 640 S.E.2d 540, 554 (2006) (Starcher, J., dissenting). See O'Neil v.
City of Parkersburg, 160 W.Va. 694, 697, 237 S.E.2d 504, 506 (1977) (“[T]he concept of
American justice ... pronounces that for every wrong there is a remedy. It is incompatible
with this concept to deprive a wrongfully injured party of a remedy[.]”); Gardner v.
Buckeye Sav. & Loan Co., 108 W.Va. 673, 680, 152 S.E. 530, 533 (1930) (“It is the
proud boast of all lovers of justice that for every wrong there is a remedy.”); Lambert v.
Brewster, 97 W.Va. 124, 138, 125 S.E. 244, 249 (1924) (“As for public policy, the
states. See Ariz. Const. Art. VIII, Pt. 2 § 1 (1910); Colo. Const. Art. XIII, § 1 (1876);
Kan. Const. Art. II, § 27 (1861); Md. Const. Art. III, § 26 (1867); Miss. Const. Art. 4, §
49 (1890); Nev. Const. Art. VII, § 1 (1864); N.D. Cent. Code Ann. § 44-09-02 (1943);
Ohio Const. Art. II, § 23 (1851); Utah Const. Art. VI, § 18 (1953); Wash. Const. Art. V,
§ 1 (1889); Wyo. Const. Art. III, § 17 (2016). There does not appear to be any judicial
decisions from those jurisdictions addressing the application of the Law and Evidence
Clause. It is also worth noting that under the 1863 Constitution of West Virginia there
was no provision for a presiding judicial officer. The 1872 Constitution of West Virginia
added the provision requiring a judicial officer preside over an impeachment proceeding.
This requirement is further evidence that an impeachment proceeding was not beyond the
jurisdiction of this Court, insofar as it solidified the quasi-judicial nature of the
proceeding.
14
strongest policy which appeals to us is that fundamental theory of the common law that
for every wrong there should be a remedy.”). In the leading treatise on the Constitution of
West Virginia, the following is said,
The second clause of section 17, providing that all persons “shall have
remedy by due course of law” … limits … the ability of the government to
constrict an individual’s right to invoke the judicial process[.]
Robert M. Bastress, The West Virginia State Constitution, at 124 (2011).
This Court has held that “enforcement of rights secured by the Constitution of this
great State is engrained in this Court's inherent duty to neutrally and impartially interpret
and apply the law.” State ex rel. Biafore v. Tomblin, 236 W. Va. 528, 544, 782 S.E.2d
223, 239 (2016). That is, “[c]ourts are not concerned with the wisdom or expediencies of
constitutional provisions, and the duty of the judiciary is merely to carry out the
provisions of the plain language stated in the constitution.” Syl. pt. 3, State ex rel. Casey
v. Pauley, 158 W.Va. 298, 210 S.E.2d 649 (1975).
Insofar as an officer of the state facing impeachment in the Court of Impeachment
has a constitutional right to seek redress for an alleged violation of his or her rights by
that court, we now hold that an officer of the state who has been impeached under Article
IV, § 9 of the Constitution of West Virginia, may seek redress for an alleged violation of
his or her constitutional rights in the impeachment proceedings, by filing a petition for an
extraordinary writ under the original jurisdiction of this Court.18 See Kinsella v. Jaekle,
18
The Respondents have argued in a footnote of their brief that “the Impeachment Clause
vests absolute discretion in the context of impeachment in the Legislature.” The
Respondents cite to the decision in Goff v. Wilson, 32 W. Va. 393, 9 S.E. 26 (1889) as
support for that proposition. Goff does not support the proposition and is not remotely
15
192 Conn. 704, 723, 475 A.2d 243, 253 (1984) (“A court acting under the judicial power
of … the constitution may exercise jurisdiction over a controversy arising out of
impeachment proceedings only if the legislature's action is clearly outside the confines of
its constitutional jurisdiction to impeach any executive or judicial officer; or egregious
and otherwise irreparable violations of state or federal constitutional guarantees are being
or have been committed by such proceedings.”); Smith v. Brantley, 400 So. 2d 443, 449
(Fla. 1981) (“The issue of subject matter jurisdiction for impeachment is properly
determined by the judiciary, of course. Our conclusion on this question is that one must
be such an officer to be impeachable.”); Dauphin County Grand Jury Investigation
Proceedings, 332 Pa. 342, 345, 2 A.2d 802, 803 (1938) (“the courts have no jurisdiction
in impeachment proceedings, and no control over their conduct, so long as actions taken
are within constitutional lines.”) (emphasis added); People ex rel. Robin v. Hayes, 82
Misc. 165, 172–73, 143 N.Y.S. 325, 330 (Sup. Ct. 1913) (“[A court] has no jurisdiction
to inquire into the sufficiency of charges for which a Governor may be impeached, nor, I
take it, whether the proceedings looking to that end were properly conducted, unless at
their foundation, in their exercise, constitutional guaranties are broken down or
limitations ignored.”) (emphasis added).19
relevant to this case. In Goff the petitioner wanted this Court to declare that he received
the highest number of votes for the office of governor, before the Legislature carried out
its duties in certifying the results of the election. We declined to intervene because no
authority permitted this Court to intervene. Contrary to the Respondents’ assertion, that
the Legislature has absolute discretion in impeachment matters, the Law and Evidence
Clause of the constitution strips the Legislature of “absolute” discretion in such matters.
19
This is not the first time that we have permitted access to this Court, under our original
jurisdiction, when no right of appeal existed from a quasi-judicial proceeding. For
16
It will be noted that this Court held in syllabus point 3 of State ex rel. Holmes v.
Clawges, 226 W. Va. 479, 702 S.E.2d 611 (2010) that “[u]nder the Separation of Powers
doctrine, 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.” This holding is not applicable to the issue
under consideration in the instant matter.20 In Holmes the Court was called upon to
address the issue of a circuit court issuing an order that required the Clerk of the Senate
and the Clerk of the House of Delegates remove references to a pardon by the Governor
in the official journals of the Senate and the House of Delegates. When the Clerks refused
to obey the order, the circuit court issued a rule to show cause as to why they should not
example, a litigant in the former Court of Claims had no right to appeal a decision from
that tribunal. However, this Court found that constitutional principles permitted access to
this Court under our original jurisdiction:
[T]his Court obviously may review decisions of the court of claims under
the original jurisdiction granted by article VIII, section 2 of our
Constitution, through proceedings in mandamus, prohibition, or certiorari.
Review in this fashion is necessary because the court of claims is not a
judicial body, but an entity created by and otherwise accountable only to
the Legislature, and judicial recourse must be available to protect basic
principles of separation of powers.
G.M. McCrossin, Inc. v. W. Virginia Bd. of Regents, 177 W. Va. 539, 541 n.3, 355 S.E.2d
32, 33 n.3 (1987). See Syl. pt. 3, City of Morgantown v. Ducker, 153 W. Va. 121, 121,
168 S.E.2d 298, 299 (1969) (“Mandamus is the proper remedy to require the State Court
of Claims to assume jurisdiction of a monetary claim against the Board of Governors of
West Virginia University.”). The Court of Claims was renamed in 2017 and is now called
the “West Virginia Legislative Claims Commission.” See W. Va. Code § 14-2-4 (2017).
20
The Respondents cited to this case three times in their brief, but did not provide any
discussion of the case.
17
be held in contempt. This Court determined that the judicial order encroached on the
exclusive authority of the Legislature to maintain journals:
[T]he Clerks argue that it is beyond the authority of a circuit court to
compel them to alter the Journals, whether in their printed form or in their
electronic form published on the internet. The Clerks generally assert that
the circuit court exceeded its jurisdiction, because the Journals are a
protected legislative function under the Constitution of West Virginia.
The Constitution of West Virginia vests the State's legislative power in a
Senate and a House of Delegates. W.Va. Const., Art. VI, § 1. Each house of
the Legislature is charged with determining its own internal rules for its
proceedings and with choosing its own officers. W.Va. Const., Art. VI, §
24.
The Constitution mandates that each house must keep and publish a
“journal of its proceedings.” Article VI, Section 41 states:
Each house shall keep a journal of its proceedings, and cause
the same to be published from time to time, and all bills and
joint resolutions shall be described therein, as well by their
title as their number, and the yeas and nays on any question,
if called for by one tenth of those present shall be entered on
the journal.
A variation of this mandate has been in our Constitution since the founding
of our State in 1863. The founding fathers indicated during the
constitutional convention that there are two goals underlying this provision:
to ensure that the votes of legislators are correctly recorded, and to make a
public record of the actions of legislators.
Holmes, 226 W. Va. at 483–84, 702 S.E.2d at 615–16. The facts giving rise to syllabus
point 3 in Holmes clearly establish the limitations of that syllabus point. That is, the facts
of the case concerned a trial court interfering in legislative administrative matters when
no legal authority permitted such interference. Neither the opinion nor syllabus point 3
were intended to limit the authority of this Court to entertain an extraordinary writ against
the Legislature when the law permits. For example, the case of State ex rel. Cooper v.
Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012) involved several consolidated actions
for prohibition and mandamus against the Speaker of the House of Delegates and
18
government officials concerning the constitutionality of redistricting. This Court denied
the writs and in doing so held that
In the absence of constitutional infirmity, as the precedent evaluated above
irrefutably establishes, the development and implementation of a legislative
redistricting plan in the State of West Virginia are entirely within the
province of the Legislature. The role of this Court is limited to a
determination of whether the Legislature's actions have violated the West
Virginia Constitution.
Cooper, 229 W. Va. at 614, 730 S.E.2d at 397. See State ex rel. W. Virginia Citizen
Action Grp. v. Tomblin, 227 W. Va. 687, 715 S.E.2d 36 (2011) (granting mandamus in
part against the Governor, Speaker of the House of Delegates and other government
officials requiring a special election be called); State ex rel. League of Women Voters of
W. Virginia v. Tomblin, 209 W. Va. 565, 578, 550 S.E.2d 355, 368 (2001) (finding that
mandamus would be issued against the President of the Senate, Speaker of the House of
Delegates and other government officials that required “the Legislature to only include as
part of the budget digest information that has been the subject of discussion, debate, and
decision prior to final legislative enactment of the budget bill.”); State ex rel. Meadows v.
Hechler, 195 W. Va. 11, 19, 462 S.E.2d 586, 594 (1995) granting mandamus against the
President of the Senate and Speaker of the House of Delegates that required “the
Legislature to promptly draft legislation to replace the unconstitutional section of article
29A and additionally, to consider passage of legislation that would exempt certain
administrative regulations from conformance with APA implementation requirements,
such as where compliance with federal law is mandated.”). In view of the foregoing, we
hold that to the extent that syllabus point 3 of State ex rel. Holmes v. Clawges, 226 W.
19Va. 479, 702 S.E.2d 611 (2010) may be interpreted as prohibiting this Court from
exercising its constitutional authority to issue an extraordinary writ against the
Legislature when the law requires, it is disapproved.
The Respondents have cited to the decision in Nixon v. United States, 506 U.S.
224, 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993) as authority for the proposition that the
judiciary does not have jurisdiction over impeachment proceedings. In Nixon, a federal
district judge was impeached and removed from office, in a proceeding in which the
United States Senate allowed a committee to take testimony and gather evidence. The
former judge filed a declaratory judgment action in a district court seeking a ruling that
the Senate’s failure to hold a full evidentiary hearing before the entire Senate violated its
constitutional duty to “try” all impeachments. The District Court denied relief and
dismissed the case. The Court of Appeals affirmed. The United States Supreme Court
granted certiorari to determine whether the constitutional requirement that the Senate
“try” cases of impeachment precludes the use of a committee to hear evidence. The
opinion held that the issue presented could not be brought in federal court. The Court
reasoned as follows:
We agree with the Court of Appeals that opening the door of judicial
review to the procedures used by the Senate in trying impeachments would
“expose the political life of the country to months, or perhaps years, of
chaos.” This lack of finality would manifest itself most dramatically if the
President were impeached. The legitimacy of any successor, and hence his
effectiveness, would be impaired severely, not merely while the judicial
process was running its course, but during any retrial that a differently
constituted Senate might conduct if its first judgment of conviction were
invalidated. Equally uncertain is the question of what relief a court may
give other than simply setting aside the judgment of conviction. Could it
20
order the reinstatement of a convicted federal judge, or order Congress to
create an additional judgeship if the seat had been filled in the interim?
Nixon, 506 U.S. at 236, 113 S. Ct. at 739.
The decision in Nixon is not controlling and is distinguishable. See Peters v.
Narick, 165 W. Va. 622, 628 n.13, 270 S.E.2d 760, 764 n.13 (1980), modified on other
grounds by Israel by Israel v. W. Virginia Secondary Sch. Activities Comm'n, 182 W. Va.
454, 388 S.E.2d 480 (1989) (“States have the power to interpret state constitutional
guarantees in a manner different than the United States Supreme Court has interpreted
comparable federal constitutional guarantees.”). The narrowly crafted text of the
impeachment provision found in the Constitution of the United States prevented the
Supreme Court from finding a basis for allowing a constitutional challenge to the
impeachment procedure adopted by the Senate. The text of the federal impeachment
provision is found in Article I, § 3 of the Constitution of the United States and provides
the following:
The Senate shall have the sole Power to try all Impeachments. When sitting
for that Purpose, they shall be on Oath or Affirmation. When the President
of the United States is tried, the Chief Justice shall preside: And no Person
shall be convicted without the Concurrence of two thirds of the Members
present.
Judgment in Cases of Impeachment shall not extend further than to removal
from Office, and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.
It is clear that Article 1, § 3 does not contain the Law and Evidence Clause that is found
in Article IV, § 9 of the Constitution of West Virginia. Therefore, our constitution
21
provides greater impeachment protections than the Constitution of the United States.21
See State ex rel. K.M. v. W. Virginia Dep't of Health & Human Res., 212 W. Va. 783, 794
n.15, 575 S.E.2d 393, 404 n.15 (2002) (“it is clear that our Constitution may offer greater
protections than its federal counterpart.”); State ex rel. Carper v. W. Virginia Parole Bd.,
203 W. Va. 583, 590 n.6, 509 S.E.2d 864, 871 n.6 (1998) (“This Court has determined
repeatedly that the West Virginia Constitution may be more protective of individual
rights than its federal counterpart.”); State v. Bonham, 173 W. Va. 416, 418, 317 S.E.2d
501, 503 (1984) (“[T]he United States Supreme Court has also recognized that a state
supreme court may set its own constitutional protections at a higher level than that
accorded by the federal constitution. There are a number of cases where state supreme
courts have set a higher level of protection under their own constitutions.”); Syl. pt.2,
Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (“The provisions of the
Constitution of the State of West Virginia may, in certain instances, require higher
standards of protection than afforded by the Federal Constitution.”). Moreover, Nixon
was not called upon to address the substantive type of issues presented in this case. The
case was focused upon the right of the Senate to craft rules of procedure for
impeachment.
The Respondents have cited to the decision in In re Judicial Conduct Comm., 145
N.H. 108, 111, 751 A.2d 514, 516 (2000). In that case the New Hampshire House
Judiciary Committee began an impeachment investigation into conduct by the state
21
Even the Respondents have conceded in their brief that “West Virginia’s Impeachment
Clause is significantly broader than its counterpart in the United States Constitution.”
22
Supreme Court chief justice and other members of that court. The state Supreme Court
Committee on Judicial Conduct filed a motion seeking an order requiring the House
Committee to allow it to attend any House Committee deposition of any Judicial Conduct
member or employee. The state Supreme Court held that the issue presented was a
nonjusticiable political question and therefore denied relief. However, the opinion was
clear in holding that the judiciary had authority to intervene in an impeachment
proceeding:
The [House Judiciary Committee] first argues that the judicial branch lacks
jurisdiction over any matter related to a legislative impeachment
investigation. We disagree.
The investigative power of the Legislature, however
penetrating and persuasive its scope, is not an absolute right
but, like any right, is “limited by the neighborhood of
principles of policy which are other than those on which
[that] right is founded, and which become strong enough to
hold their own when a certain point is reached.” United States
v. Rumely, 345 U.S. 41, 44 [73 S.Ct. 543, 97 L.Ed. 770];
Hudson Water Co. v. McCarter, 209 U.S. 349, 355 [28 S.Ct.
529, 52 L.Ed. 828]. The contending principles involved here
are those underlying the power of the Legislature to
investigate on the one hand and those upon which are based
certain individual rights guaranteed to our citizens by the
State and National Constitutions.
Nelson v. Wyman, 99 N.H. 33, 41, 105 A.2d 756, 764 (1954).
***
The court system is available for adjudication of issues of constitutional or
other fundamental rights.... In such circumstances, Part I, Article 17 of the
New Hampshire Constitution does not deprive persons whose rights are
violated from seeking judicial redress simply because the violation occurs
in the course of an impeachment investigation.
***
The constitutional authority of the House of Representatives to conduct
impeachment proceedings without interference from the judicial branch is
extensive, but not so extensive as to preclude this court's jurisdiction to hear
matters arising from legislative impeachment proceedings. “It is the role of
this court in our co-equal, tripartite form of government to interpret the
23
Constitution and to resolve disputes arising under it.” Petition of Mone, 143
N.H. at 133, 719 A.2d at 631 (quoting Monier, 122 N.H. at 476, 446 A.2d
at 455; citing Merrill v. Sherburne, 1 N.H. 199, 201-02 (1818)). However,
upon briefing and argument, it is apparent that the specific issue raised by
the JCC is nonjusticiable. Accordingly, the JCC's request for its special
counsel to attend HJC depositions of JCC members and employees is
denied.
In re Judicial Conduct, 145 N.H. at 110-113, 751 A.2d at 515. Although the Respondents
cited to the decision in In re Judicial Conduct, it is clear that the constitutional principles
of law discussed in the case are consistent with this Court’s ruling, i.e., the judiciary may
intervene in an impeachment proceeding to protect constitutional rights.
The Respondents cited to the decision in Larsen v. Senate of Pennsylvania, 166
Pa. Cmwlth. 472, 646 A.2d 694 (1994) without any discussion. In Larsen a former justice
on the state Supreme Court was sentenced to removal from office by a trial court after he
was found guilty of an infamous crime. The former justice filed for a preliminary
injunction to prevent a senate impeachment trial and asserted numerous grounds for
relief, that included: (1) he was no longer in office and could not be removed by the
senate, (2) senate rules were unconstitutional, (3) the senate could not permit a committee
to hear the case, and (4) he was denied sufficient time to prepare. The court, relying on
the decision in Nixon, found that the state’s impeachment clause was similar to the
federal clause and therefore denied relief. However, the opinion noted that the decision
by the state Supreme Court decision in Dauphin County Grand Jury Investigation
Proceedings, 332 Pa. 342, 345, 2 A.2d 802, 803 (1938) held that “the courts have no
jurisdiction in impeachment proceedings and no control over their conduct, so long as
actions taken are within constitutional lines...” Larsen, 166 Pa. Cmwlth. at 482, 646 A.2d
24at 699. The opinion limited Dauphin’s qualification on judicial intervention to
impeachment proceedings that had ended. The decision in Larsen is distinguishable
because that state’s impeachment clause was aligned with the federal impeachment
clause, and did not have a Law and Evidence Clause like the Constitution of West
Virginia. Moreover, Larsen recognized that it could not overrule the state Supreme
Court’s ruling in Dauphin, which left open the door for intervention in an impeachment
proceeding for “actions [not] taken within constitutional lines.” Larsen limited
intervention to post-impeachment.
The Respondents have also cited to the decision in Mecham v. Arizona House of
Representatives, 162 Ariz. 267, 782 P.2d 1160 (1989). In that case the state Governor
filed a petition for injunctive relief with the state Supreme Court, to prevent the state
senate from conducting an impeachment trial against him until his criminal trial was over.
The Governor also challenged the impeachment procedures. The state Supreme Court
denied relief as follows:
[W]e can only conclude that the power of impeachment is exclusively
vested in the House of Representatives and the power of trial on articles of
impeachment belongs solely to the Senate. The Senate's task is to determine
if the Governor should be removed from office. Aside from disqualification
from holding any other state position of “honor, trust, or profit,” the Senate
can impose no greater or lesser penalty than removal and can impose no
criminal punishment. Trial in the Senate is a uniquely legislative and
political function. It is not judicial.
Mecham, 156 Ariz. at 302, 751 P.2d at 962. The decision in Mecham is factually
distinguishable because it did not involve allegations of a violation of substantive
constitutional rights. More importantly, even though the court in Mecham denied the
25
requested relief, it made clear that the judiciary could intervene in an impeachment
proceeding to protect the constitutional rights of an impeached official:
This Court does have power to ensure that the legislature follows the
constitutional rules on impeachment. For instance, should the Senate
attempt to try a state officer without the House first voting articles of
impeachment, we would not hesitate to invalidate the results.
Mecham, 156 Ariz. at 302-303, 751 P.2d at 962-963. See Mecham v. Gordon, 162 Ariz.
267, 782 P.2d 1160 (1989) (declining to review impeachment of state Governor because
constitutional requirements were met).
In the instant proceeding the Petitioner has alleged that the impeachment charges
brought against her are unlawful and violate her constitutional rights. In view of the
above analysis, we have jurisdiction to consider the validity of these allegations.22
22
The Respondents have argued that intervention in the impeachment proceeding violates
the Guarantee Clause of the federal constitution. This clause provides as follows: “The
United States shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened) against
domestic Violence.” U.S. Conts. Art. IV, § 4. The Respondents contend that the
Guarantee Clause requires that a state have “separate and coequal branches” of
government. In a convoluted manner the Respondents contend that this Court’s
intervention in this matter would destroy the “separate and coequal branches” of
government. The Respondents have not cited to an opinion by any court in the country
that supports the proposition that issuance of a writ against another branch of government
violates the Guarantee Clause. See New York v. United States, 505 U.S. 144, 184, 112 S.
Ct. 2408, 2432, 120 L. Ed. 2d 120 (1992) (“In most of the cases in which the Court has
been asked to apply the [Guarantee] Clause, the Court has found the claims presented to
be nonjusticiable under the ‘political question’ doctrine.”). We find no merit in the
contention. Further, the issue of the separation of powers doctrine is fully addressed in
the Discussion section of this opinion.
26
III.
STANDARD OF REVIEW
The Petitioner filed this matter seeking a writ of mandamus to prohibit
enforcement of the Articles of Impeachment filed against her. This Court has explained
that the function of mandamus is “the enforcement of an established right and the
enforcement of a corresponding imperative duty created or imposed by law.” State ex rel.
Ball v. Cummings, 208 W. Va. 393, 398, 540 S.E.2d 917, 922 (1999). It was held in
syllabus point two of State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170
S.E.2d 367 (1969) that
A writ of mandamus will not issue unless three elements coexist—(1) a clear legal
right in the petitioner to the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3) the absence of
another adequate remedy.
In our review of the type of relief the Petitioner seeks we do not believe that
mandamus is the appropriate remedy. “In appropriate situations, this Court has chosen to
treat petitions for extraordinary relief according to the nature of the relief sought rather
than the type of writ pursued.” State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217
W. Va. 696, 699, 619 S.E.2d 209, 212 (2005). See State ex rel. Potter v. Office of
Disciplinary Counsel of State, 226 W. Va. 1, 2 n.1, 697 S.E.2d 37, 38 n.1 (2010) (“this
Court has, in past cases, treated a request for relief in prohibition as a petition for writ of
mandamus if so warranted by the facts. Accordingly, we consider the present petition as
a request for mandamus relief.”); State ex rel. Beirne v. Smith, 214 W. Va. 771, 774, 591
S.E.2d 329, 332 (2003) (“Although Mr. Bradley brought his case as a petition for a writ
27
of prohibition, while Mr. Beirne requested a writ of mandamus, we choose to treat each
as a petition for a writ of mandamus, because both petitioners wish to compel the
Commissioner to do an affirmative act, i.e., pay benefits.”); State ex rel. Wyant v.
Brotherton, 214 W. Va. 434, 437, 589 S.E.2d 812, 815 (2003) (“Because we find this
case to be in the nature of prohibition as opposed to mandamus, we will henceforth treat
it as a petition for writ of prohibition.”); State ex rel. Riley v. Rudloff, 212 W. Va. 767,
771–72, 575 S.E.2d 377, 381–82 (2002) (“This case was initially brought as a petition for
writ of habeas corpus and/or mandamus. We granted the writ of habeas corpus, leaving
for resolution only issues related to mandamus. Upon further consideration of the issues
herein raised, however, we choose (as we have done in many appropriate cases) to treat
this matter as a writ of prohibition.”); State ex rel. Sandy v. Johnson, 212 W. Va. 343,
346, 571 S.E.2d 333, 336 (2002) (“Although this case was brought and granted as a
petition for a writ of prohibition, we choose to treat it as a writ of mandamus action.”);
State ex rel. Conley v. Hill, 199 W.Va. 686, 687 n. 1, 487 S.E.2d 344, 345 n. 1 (1997)
(“Although this case was brought and granted as a petition for mandamus, we choose to
treat this matter as a writ of prohibition.”).
In light of the issues raised by the Petitioner, we find that the more appropriate
relief lies in a writ of prohibition. As a quasi-judicial body the Court of Impeachment is
subject to the writ of prohibition. See State ex rel. York v. W. Virginia Office of
Disciplinary Counsel, 231 W. Va. 183, 187 n.5, 744 S.E.2d 293, 297 n.5 (2013)
(“prohibition lies against only judicial and ‘quasi-judicial tribunals’[.]”); Lewis v. Ho-
Chunk Nation Election Bd., No. CV 06-109, 2007 WL 5297075 (Ho-Chunk Trial Ct.
28
Apr. 17, 2007) (“Therefore, the House may institute a case against a sitting president
after determining probable cause of official wrongdoing, and, through designated
managers, present the matter before the Senate, which assumes a quasi-judicial role in
hearing and deliberating the charges.”); Mayor & City Council of Baltimore ex rel. Bd. of
Police of City of Baltimore, 1860 WL 3363, 15 Md. 376, 459 (1860) (“the present
Constitution, invested the Legislature with quasi judicial functions, in exercising the
power of impeachment and punishment, as therein provided.”). The purpose of the writ is
“to restrain inferior courts from proceeding in causes over which they have no
jurisdiction[.]” Syl. pt. 1, in part, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370(1953) (emphasis added). “The writ [of prohibition] lies as a matter of right whenever the
inferior court (a) has not jurisdiction or (b) has jurisdiction but exceeds its legitimate
powers and it matters not if the aggrieved party has some other remedy adequate or
inadequate.” State ex rel. Nelson v. Frye, 221 W. Va. 391, 394, 655 S.E.2d 137, 140
(2007) (internal citation and quotation marks omitted). See W. Va. Code § 53-1-1 (1923)
(“The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse
of power, when the inferior court has not jurisdiction of the subject matter in controversy,
or, having such jurisdiction, exceeds its legitimate powers.”).
In syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12(1996), we set forth the following guideline for issuance of a writ of prohibition that does
not involve lack of jurisdiction:
In determining whether to entertain and issue the writ of prohibition for
cases not involving an absence of jurisdiction but only where it is claimed
that the lower tribunal exceeded its legitimate powers, this Court will
29
examine five factors: (1) whether the party seeking the writ has no other
adequate means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is clearly
erroneous as a matter of law; (4) whether the lower tribunal's order is an oft
repeated error or manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal's order raises new and
important problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue. Although all five
factors need not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial weight.
With the foregoing in mind, we turn to the merits of the case.
IV.
DISCUSSION
The Petitioner has presented several issues that she contends ultimately require the
dismissal of the impeachment charges against her.23 All of the arguments presented by
the Petitioner have one common thread: they expressly or implicitly contend that the
charges are brought in violation of the separation of powers doctrine. Because this
common theme permeates all of her arguments, we will provide a separate discussion of
that doctrine before we address the merits of each individual issue.
23
It was previously noted in this opinion that the Respondents chose not to address the
merits of the issues presented. Even though the Respondents have not presented any
sufficiently briefed legal arguments against the merits of Petitioner’s arguments, they
have referenced in general as to why certain claims by the Petitioner are not valid.
30
A.
The Separation of Powers Doctrine
“[T]he separation of powers doctrine [is] set forth in our State Constitution.” Erie
Ins. Prop. & Cas. Co. v. King, 236 W. Va. 323, 329, 779 S.E.2d 591, 597 (2015). The
doctrine is set out in Article V, § 1 of the Constitution of West Virginia as follows:
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.24
With regard to this provision, this Court has stated:
The separation of these powers; the independence of one from the other; the
requirement that one department shall not exercise or encroach upon the
powers of the other two, is fundamental in our system of Government, State
and Federal. Each acts, and is intended to act, as a check upon the others,
and thus a balanced system is maintained. No theory of government has
been more loudly acclaimed.
State ex rel. W. Virginia Citizen Action Grp. v. Tomblin, 227 W. Va. 687, 695, 715
S.E.2d 36, 44 (2011), quoting State v. Huber, 129 W.Va. 198, 209, 40 S.E.2d 11, 18
(1946). It has been held that “Article V, section 1 of the Constitution ... is not merely a
suggestion; it is part of the fundamental law of our State and, as such, it must be strictly
24
Under the 1863 Constitution of West Virginia the separation of powers doctrine was
found in Article I, § 4. The doctrine was worded slightly differently in its original form as
follows:
The legislative, executive and judicial departments of the government shall
be separate and distinct. Neither shall exercise the powers properly
belonging to either of the others. No person shall be invested with or
exercise the powers of more than one of them at the same time.
The 1872 Constitution of West Virginia rewrote the separation of powers doctrine and
placed it in its present location.
31
construed and closely followed.” Syl. pt. 1, in part, State ex rel. Barker v. Manchin, 167
W. Va. 155, 279 S.E.2d 622 (1981). We have observed that
The 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…. This theory recognizes that each branch of
government must have sufficient power to carry out its assigned tasks and
that these constitutionally assigned tasks will be performed properly within
the governmental branch itself.
State v. Clark, 232 W. Va. 480, 498, 752 S.E.2d 907, 925 (2013). Further, the “separation
of powers doctrine ensures that the three branches of government are distinct unto
themselves and that they, exclusively, exercise the rights and responsibilities reserved
unto them.” Simpson v. W. Virginia Office of Ins. Com'r, 223 W. Va. 495, 505, 678
S.E.2d 1, 11 (2009). It has also been observed that
The Separation of Powers Clause is not self-executing. Standing alone the
doctrine has no force or effect. The Separation of Powers Clause is given
life by each branch of government working exclusively within its
constitutional domain and not encroaching upon the legitimate powers of
any other branch of government. This is the essence and longevity of the
doctrine.
State ex rel. Affiliated Constr. Trades Found. v. Vieweg, 205 W.Va. 687, 702, 520 S.E.2d
854, 869 (1999) (Davis, J., concurring). Professor Bastress has pointed out the purpose
and application of the separation of powers doctrine as follows:
A system of divided powers advances several purposes. First, it helps to
prevent government tyranny. By allocating the powers among the three
branches and establishing a system of checks and balances, the constitution
ensures that no one person or institution will become too powerful and
allow ambition to supersede the public good....
***
Thus, under the current doctrine, the court’s role is to apply Article V to
ensure that the system of government in the state remains balanced and that
no one branch assumes powers specifically delegated to another, or
32
imposes burdens on another, or passes on its own responsibilities to another
branch in such a manner as to threaten the balance of power, facilitate
tyranny, or weaken the system of government.
Bastress, West Virginia State Constitution, at 141-144. See Syl. pt. 2, Appalachian Power
Co. v. Public Serv. Comm'n of West Virginia, 170 W.Va. 757, 296 S.E.2d 887 (1982)
(“Where there is a direct and fundamental encroachment by one branch of government
into the traditional powers of another branch of government, this violates the separation
of powers doctrine contained in Section 1 of Article V of the West Virginia
Constitution.”).
The decision in State ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 207
S.E.2d 421 (1973) summarized the development of the separation of powers doctrine as
follows:
From the time of its adherence to by Montesquieu, the author or at least an
early supporter of the concept of separation of powers, the political merit of
that design of government has not been seriously questioned. Hodges v.
Public Service Commission, 110 W.Va. 649, 159 S.E. 834; Kilbourn v.
Thompson, 103 U.S. 168, 26 L.Ed. 377. That concept was invoked in the
early consideration of the formulation of our federal Constitution.
Reflecting the import which he attributed to the concept of separation of
powers in government, James Madison, in support of the proposed
Constitution, wrote: ‘The accumulation of all powers, legislative, executive,
and judiciary, in the same hands, whether of one, a few, or many, and
whether hereditary, self-appointed, or elective, may justly be pronounced
the very definition of tyranny. * * * where the Whole power of one
department is exercised by the same hands which possess the Whole *114
power of another department, the fundamental principles of a free
constitution are subverted.’ Speaking of the judiciary, Madison, quoting
Montesquieu, wrote: “Were it (judicial power) joined to the executive
power, The judge might behave with all the violence of An oppressor.” The
Federalist Papers, Hamilton, Madison and Jay (Rossiter, 1961).
Commenting on the relationship between the three recognized branches of
government and the urgency of maintaining a wholly independent judiciary,
Alexander Hamilton, in Essay No. 78 of The Federalist Papers, noted: ‘The
33
executive not only dispenses the honors but holds the sword of the
community. The legislature not only commands the purse but prescribes the
rules by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either the sword or the
purse; no direction either of the strength or of the wealth of the society, and
can take no active resolution whatever. It may truly be said to have neither
FORCE nor WILL but merely judgment; and must ultimately depend upon
the aid of the executive arm even for the efficacy of its judgments.’
With the real affirmative powers of government reposing in the hands of
the executive and legislative branches, it becomes urgent that the judiciary
department, one function of which under our fundamental law is to prevent
encroachment by the other two branches, remains free and completely
independent. As noted by Montesquieu in Spirit of Laws, Vol. 1, page 181:
‘* * * there is no liberty if the power of judging be not separated from the
legislative and executive powers.’ Thus, judicial independence is essential
to liberty—lest the executive sword become a ‘Sword of Damocles',
precariously and intimidatingly suspended over the judicial head and the
legislative law making power be used to usurp the rights granted by the
Constitution to the people.
Brotherton, 157 W. Va. at 113–14, 207 S.E.2d at 430.
We have recognized that “[t]he system of ‘checks and balances’ provided for in
American state and federal constitutions and secured to each branch of government by
‘Separation of Powers’ clauses theoretically and practically compels courts, when called
upon, to thwart any unlawful actions of one branch of government which impair the
constitutional responsibilities and functions of a coequal branch.” Syl. pt. 1, State ex rel.
Frazier v. Meadows, 193 W.Va. 20, 454 S.E.2d 65 (1994). We have also determined that
“the role of this Court is vital to the preservation of the constitutional separation of
powers of government where that separation, delicate under normal conditions, is
jeopardized by the usurpatory actions of the executive or legislative branches of
government.” State ex rel. Steele v. Kopp, 172 W. Va. 329, 337, 305 S.E.2d 285, 293
(1983). See State ex rel. W. Virginia Citizens Action Grp. v. W. Virginia Econ. Dev.
34
Grant Comm., 213 W. Va. 255, 264, 580 S.E.2d 869, 878 (2003) (“Underlying any
encroachment of power by one branch of government is the paramount concern that such
action will impermissibly foster[ ] ... dominance and expansion of power.”). Moreover,
this Court has never “hesitated to utilize the doctrine where we felt there was a direct and
fundamental encroachment by one branch of government into the traditional powers of
another branch of government.” Appalachian Power Co. v. PSC, 170 W.Va. 757, 759,
296 S.E.2d 887, 889 (1982). See, e.g., State ex rel. West Virginia Citizens Action Group
v. West Virginia Economic Dev. Grant Comm., 213 W.Va. 255, 580 S.E.2d 869 (2003)
(finding statute that gave legislature a role in appointing members of the West Virginia
Economic Grant Committee violated Separation of Powers Clause); State ex rel.
Meadows v. Hechler, 195 W.Va. 11, 462 S.E.2d 586 (1995) (finding statute which
permitted administrative regulations to die if legislature failed to take action violated
Separation of Powers Clause); State ex rel. State Bldg. Comm'n v. Bailey, 151 W.Va. 79,
150 S.E.2d 449 (1966) (finding statute naming legislative officers to State Building
Commission violated Separation of Powers Clause).
The United States Supreme Court in O'Donoghue v. United States, 289 U.S. 516,
53 S.Ct. 740, 77 L.Ed. 1356 (1933) articulated the need for separating the powers of
government into three distinct branches:
The Constitution, in distributing the powers of government, creates three
distinct and separate departments—the legislative, the executive, and the
judicial. This separation is not merely a matter of convenience or of
governmental mechanism. Its object is basic and vital, Springer v.
Government of Philippine Islands, 277 U.S. 189, 201, 48 S.Ct. 480, 72
L.Ed. 845; namely, to preclude a commingling of these essentially different
powers of government in the same hands....
35
If it be important thus to separate the several departments of government and
restrict them to the exercise of their appointed powers, it follows, as a logical
corollary, equally important, that each department should be kept completely
independent of the others—independent not in the sense that they shall not
cooperate to the common end of carrying into effect the purposes of the
Constitution, but in the sense that the acts of each shall never be controlled by, or
subjected, directly or indirectly, to, the coercive influence of either of the other
departments. James Wilson, one of the framers of the Constitution and a justice of
this court, in one of his law lectures said that the independence of each department
required that its proceedings “should be free from the remotest influence, direct or
indirect, of either of the other two powers.” 1 Andrews, The Works of James
Wilson (1896), Vol. 1, p. 367. And the importance of such independence was
similarly recognized by Mr. Justice Story when he said that in reference to each
other, neither of the departments “ought to possess, directly or indirectly, an
overruling influence in the administration of their respective powers.” 1 Story on
the Constitution, 4th ed. s 530.
O’Donoghue, 289 U.S. at 530–31, 53 S.Ct. at 743 (emphasis added).25
It must also been understood that this Court “has long recognized that it is not
possible that division of power among the three branches of government be so precise
and exact that there is no overlapping whatsoever.” State ex rel. Sahley v. Thompson, 151
W.Va. 336, 341, 151 S.E.2d 870, 873 (1966), overruled in part by State ex rel. Hill v.
Smith, 172 W. Va. 413, 305 S.E.2d 771 (1983). See Appalachian Power Co. v. Public
Serv. Comm'n of West Virginia, 170 W. Va. 757, 759, 296 S.E.2d 887, 889 (1982) (“we
have recognized the need for some flexibility in interpreting the separation of powers
doctrine in order to meet the realities of modern day government[.]”). “While the
Constitution contemplates the independent operation of the three fields of government as
to all matters within their respective fields, there can be no doubt that the people, through
25
Although federal courts recognize the separation of powers doctrine, “the federal
Constitution has no specific provision analogous to [Article V, § I].” Bastress, West
Virginia State Constitution, at 141.
36
their Constitution, may authorize one of the departments to exercise powers otherwise
rightfully belonging to another department.” State ex rel. Thompson v. Morton, 140
W.Va. 207, 223, 84 S.E.2d 791, 800–801 (1954).
With these general principles of the separation of powers doctrine guiding our
analysis, we now turn to the merits of the issues presented.
B.
An Administrative Rule Promulgated by the Supreme
Court Supersede Statutes in Conflict with Them
The first issue we address is the Petitioner’s contention that two of the Articles of
Impeachment against her are invalid, because they can only be maintained by violating
the constitutional authority of the Supreme Court to promulgate rules that have the force
of law and supersede any statute that conflicts with them. The two Articles of
Impeachment in question are Article IV26 and Article VI.27 Both of those Articles charge
26
The text of Article IV was set out as follows:
That the said Chief Justice Margaret Workman, and Justice Robin Davis,
being at all 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 of West Virginia unmindful of the duties
of their high offices, and contrary to the oaths taken by them to support the
Constitution of the State of West Virginia and faithfully discharge the
duties of their offices as such Justices, while in the exercise of the functions
of the office of Justices, in violation of their oaths of office, then and there,
with regard to the discharge of the duties of their offices, commencing in or
about 2012, did knowingly and intentionally act, and each subsequently
oversee in their capacity as Chief Justice, and did in that capacity as Chief
Justice severally sign and approve the contracts necessary to facilitate, at
each such relevant time, to overpay certain Senior Status Judges in
violation of the statutory limited maximum salary for such Judges, which
overpayment is a violation of Article VIII, §7 of the West Virginia
Constitution, stating that Judges "shall receive the salaries fixed by law"
37
the Petitioner with improperly overpaying senior-status judges. The Petitioner argues that
the statute relied upon by Article IV and Article VI is in conflict with an administrative
order promulgated by the Chief Justice.
and the provisions of W.Va. Code §51-2-13 and W.Va. Code §51-9-1 0,
and, in violation of an Administrative Order of the Supreme Court of
Appeals, in potential violation of 15 the provisions of W.Va. Code §61-3-
22, relating to the crime of falsification of accounts with intent to enable or
assist any person to obtain money to which he was not entitled, and, in
potential violation of the provisions set forth in W.Va. Code §61-3-24,
relating to the crime of obtaining money, property and services by false
pretenses, and, all of the above are in violation of the provisions of Canon I
and Canon II of the West Virginia Code of Judicial Conduct.
27
The text of Article VI was set out as follows:
That the said Justice Margaret Workman, being at all times relevant a
Justice of the Supreme Court of Appeals of West Virginia, and at certain
relevant times individually Chief Justice of the Supreme Court of Appeals
of West Virginia, unmindful of the duties of her high offices, and contrary
to the oaths taken by her to support the Constitution of the State of West
Virginia and faithfully discharge the duties of her office as such Justice,
while in the exercise of the functions of the office of Justice, in violation of
her oath of office, then and there, with regard to the discharge of the duties
of her office, did in the year 2015, did in her capacity as Chief Justice, sign
certain Forms WV 48, to retain and compensate certain Senior Status
Judges the execution of which forms allowed the Supreme Court of
Appeals to overpay those certain Senior Status Judges in violation of the
statutorily limited maximum salary for such Judges, which overpayment is
a violation of Article VIII, § 7 of the West Virginia Constitution, stating
that Judges "shall receive the salaries fixed by law" and the provisions of
W.Va. Code §51-2-13 and W.Va. Code §51-9-10; her authorization of such
overpayments was a violation of the clear statutory law of the state of West
Virginia, as set forth in those relevant Code sections, and, was an act in
potential violation of the provisions set forth in W.Va. Code §61-3-22,
relating to the crime of falsification of accounts with intent to enable or
assist any person to obtain money to which he was not entitled, and, in
potential violation of the provisions set forth in W.Va. Code §61-3-24,
relating to the crime of obtaining money, property and services by false
pretenses, and all of the above are in violation of the provisions of Canon I
and Canon II of the West Virginia Code of Judicial Conduct.
38
We begin by observing that the 1974 Judicial Reorganization Amendment of the
Constitution of West Virginia centralized the administration of the state’s judicial system
and placed the administrative authority of the courts in the hands of this Court.28 See
State ex rel. Casey v. Pauley, 158 W. Va. 298, 300, 210 S.E.2d 649, 651 (1975) (“The
Judicial Reorganization Amendment was ratified by a large majority throughout the
state.”). The Amendment rewrote Article VIII, substituting §§ 1 to 15 for former §§ 1 to
30, amended § 13 of Article III, and added §§ 9 to 13 to Article IX. Justice Cleckley
made the following observations regarding the changes:
These changes include the entirety of the Reorganization Amendment and
its concept of a unified court system administered by this Court and not the
legislature. More specifically, that same amendment altered Section 1 of
Article VIII to provide that the judicial power of the State “shall be vested
solely ” in this Court and its inferior courts. The predecessor provision to
Section 1, though similarly worded, did not include the limiting adverb
“solely.” In addition, the Modern Budget Amendment insulated the
judiciary from political retaliation by preventing the governor and
legislature from reducing the judiciary's budget submissions. W.Va. Const.,
art. V, § 51; State ex rel. Bagley v. Blankenship, 161 W.Va. 630, 246
S.E.2d 99 (1978); State ex rel. Brotherton v. Blankenship, 157 W.Va. 100,
207 S.E.2d 421 (1973). Taken together, these amendments create a strong
and independent judiciary that can concentrate on delivering a high quality,
fair, and efficient system of justice to the citizens of West Virginia. Such
measures are particularly useful in a State such as ours that continues, and
appropriately so, to elect judges to fixed terms of office. That is, because
judges remain ultimately beholden to the electorate, the need is even greater
to insulate the judiciary from the more routine politics of the annual budget
process and legislative or executive manipulation.
***
[A]ltering the administrative structure did not negate all prior laws that are
tangentially related to administrative matters. To the contrary, the
Reorganization Amendment provides us with a hierarchy to be used in
resolving administrative conflicts and problems. As we explained in
28
“The Judicial Reorganization Amendment was ratified on November 5, 1974.” State ex
rel. Dunbar v. Stone, 159 W. Va. 331, 333, 221 S.E.2d 791, 792 (1976).
39
Rutledge, this Court's “exclusive authority over the administration, and
primary responsibility for establishing rules of practice and procedure,
secures businesslike management for the courts and promotes simplified
and more economical judicial procedures.” 175 W.Va. at 379, 332 S.E.2d at
834. Under the Amendment, the Judiciary, not the executive branch, is
vested with the authority to resolve any substantial, genuine, and
irreconcilable administrative conflicts regarding court personnel.
The judicial system was revised, among other things, to simplify the
administrative process and to complement prior nonconflicting statutory
and case law. Clearly, the administrative structure requires that if there is a
conflict, we must not only consider the concerns of the parties, but also
look at the hierarchy of the court system. The administration of the court is
very important to the unobstructed flow of court proceedings and business.
Court actions are complicated enough without adding to their complexity a
struggle over every administrative decision to be made. The purpose of
judicial administrative authority is to enhance and simplify our court
system and not to burden it.
State ex rel. Frazier v. Meadows, 193 W. Va. 20, 26-28, 454 S.E.2d 65, 71-73 (1994).
Professor Bastress has compared the general authority of the Supreme Court before and
after the Reorganization Amendment as follows:
The third and fourth paragraphs, added by the Judicial Reorganization
Amendment of 1974, establish the unitary judicial system in West Virginia.
The first of those grants the court the power to promulgate rules of
procedure relating to all aspects of judicial proceedings in the state.
Although the court had previously asserted that as an inherent power, it also
conceded that the legislature retained the ultimate authority. After the 1974
amendment, however, the court has ruled, in justifiable reliance on the
language of section 3, that the court’s rules supersede any legislation in
conflict with a court-promulgated rule.
Bastress, West Virginia State Constitution, at 227. See Foster v. Sakhai, 210 W. Va. 716,
724 n.3, 559 S.E.2d 53, 61 n.3 (2001) (“the constitutional power and inherent power of
the judiciary prevent another branch of government from usurping the Court's
authority.”).
40
One of the most important changes that the Reorganization Amendment made was
to provide this Court with the exclusive constitutional authority to promulgate
administrative rules for the effective management of the judicial system, that “have the
force and effect of statutory law and operate to supersede any law that is in conflict with
them.” Syl. pt. 1, in part, Stern Brothers, Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d
222 (1977). This authority is found in Article VIII, § 3 of the Constitution of West
Virginia. We will address the relevant text of both provisions separately.29
To begin, we will look at the Rule-Making Clause of Section 3. The relevant text
of the Rule-Making Clause of Section 3 provides as follows:
The court shall have power to promulgate rules for all cases and
proceedings, civil and criminal, for all of the courts of the state relating to
writs, warrants, process, practice and procedure, which shall have the force
and effect of law.
Section 3 unquestionably provides this Court with the sole constitutional authority to
promulgate rules for the judicial system, and demands that those rules have the force of
law. See Syl. pt. 5, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999) (“The West
Virginia Rules of Criminal Procedure are the paramount authority controlling criminal
proceedings before the circuit courts of this jurisdiction; any statutory or common-law
procedural rule that conflicts with these Rules is presumptively without force or effect.”);
Syl. pt. 10, Teter v. Old Colony Co., 190 W. Va. 711, 714, 441 S.E.2d 728, 731 (1994)
“Under Article VIII, ... Section 3 of the Constitution of West Virginia (commonly known
as the Judicial Reorganization Amendment), administrative rules promulgated by the
29
The authority of the Court to promulgate rules is also contained in Article VIII, § 8.
This provision is discussed in the next section of this opinion.
41
Supreme Court of Appeals of West Virginia have the force and effect of statutory law
and operate to supersede any law that is in conflict with them.”); Syl. pt. 1, Bennett v.
Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988), superseded by statute as stated in Miller
v. Allman, 240 W. Va. 438, 813 S.E.2d 91 (2018) (“Under article eight, section three of
our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules
for all of the courts of the State related to process, practice, and procedure, which shall
have the force and effect of law.”).
The responsibility imposed on this Court by Section 3 was articulated in State ex
rel. Bagley v. Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978):
The Judicial Reorganization Amendment, Article VIII, Section 3, of the
Constitution, placed heavy responsibilities on this Court for administration of the
state's entire court system. The mandate of the people, so expressed, commands
the members of the Court to be alert to the needs and requirements of the court
system throughout the state.
Bagley, 161 W.Va. at 644–45, 246 S.E.2d at 107. “Not only does our Constitution
explicitly vest the judiciary with the control over its own administrative business, but it is
a fortiori that the judiciary must have such control in order to maintain its independence.”
Syl. pt. 2, State ex rel. Lambert v. Stephens, 200 W.Va. 802, 490 S.E.2d 891 (1997).
In carrying out the responsibility imposed by Section 3, this Court has not been
hesitant in finding statutes void when they were in conflict with any rule promulgated by
this Court. See Syl. pt. 1, Witten v. Butcher, 238 W. Va. 323, 794 S.E.2d 587 (2016)
(“The provision in W. Va. Code § 3-7-3 (1963) requiring oral argument to be held in an
appeal of a contested election, is invalid because it is in conflict with the oral argument
criteria of Rule 18 of the West Virginia Rules of Appellate Procedure.”); Syl. pt. 6, State
42
Farm Fire & Cas. Co. v. Prinz, 231 W. Va. 96, 743 S.E.2d 907 (2013) (“Because it
addresses evidentiary matters that are reserved to and regulated by this Court pursuant to
the Rule–Making Clause, Article VIII, § 3 of the West Virginia Constitution, West
Virginia Code § 57–3–1 (1937), commonly referred to as the Dead Man's Statute, is
invalid, as it conflicts with the paramount authority of the West Virginia Rules of
Evidence.”); Syl. pt. 3, Louk v. Cormier, 218 W. Va. 81, 622 S.E.2d 788 (2005) (“The
provisions contained in W. Va. Code § 55–7B–6d (2001) were enacted in violation of the
Separation of Powers Clause, Article V, § 1 of the West Virginia Constitution, insofar as
the statute addresses procedural litigation matters that are regulated exclusively by this
Court pursuant to the Rule–Making Clause, Article VIII, § 3 of the West Virginia
Constitution. Consequently, W. Va. Code § 55–7B–6d, in its entirety, is unconstitutional
and unenforceable.”); Games-Neely ex rel. W. Virginia State Police v. Real Property, 211
W. Va. 236, 245, 565 S.E.2d 358, 367 (2002) (“Rule 60(b) has the force and effect of
law; applies to forfeiture proceedings under the Forfeiture Act; and supersedes West
Virginia Code § 60A–7–705(d) to the extent that Section 705(d) can be read to deprive a
circuit court of its grant of discretion to review a default judgment order.”); Oak Cas. Ins.
Co. v. Lechliter, 206 W. Va. 349, 351 n.3, 524 S.E.2d 704, 706 n.3 (1999) (“We note,
however, that to any extent that W. Va. Code § 56–10–1 may be in conflict with W. Va.
R. Civ. P. Rule 22, it has been superseded.”); W. Virginia Div. of Highways v. Butler, 205
W. Va. 146, 150, 516 S.E.2d 769, 773 (1999) (“if W.Va. Code § 37–14–1 et seq.,
unambiguously prohibited anyone but a licensed or certified appraiser from testifying
with regard to the value of real estate in a court proceeding, this prohibition would be
43
contrary to the Rules of Evidence promulgated by this Court, pursuant to article eight,
section three of our Constitution, and, thus, the prohibition would be void.”); State v.
Jenkins, 195 W. Va. 620, 625 n.5, 466 S.E.2d 471, 476 n.5 (1995) (finding W.Va. R.
Evid. Rule 901 superseded W.Va. Code § 57-2-1); Syl. pt. 2, Williams v. Cummings, 191
W. Va. 370, 445 S.E.2d 757 (1994) (“West Virginia Code § 56-1-1(a)(7) provides that
venue may be obtained in an adjoining county ‘[i]f a judge of a circuit be interested in a
case which, but for such interest, would be proper for the jurisdiction of his court....’ This
statute refers to a situation under which a judge might be disqualified, and therefore it is
in conflict with and superseded by Trial Court Rule XVII, which addresses the
disqualification and temporary assignment of judges.”); Mayhorn v. Logan Med. Found.,
193 W. Va. 42, 454 S.E.2d 87 (1994) (finding W.Va. Code, 55-7B-7, which outlined the
qualifications of an expert in a medical malpractice case, was superseded by W.Va. R.
Evid. 702); Teter v. Old Colony Co., 190 W. Va. 711, 726, 441 S.E.2d 728, 743 (1994)
(“a legislative enactment which is substantially contrary to provisions in our Rules of
Evidence would be invalid.”); Syl. pt. 2, State ex rel. Gains v. Bradley, 199 W. Va. 412,
484 S.E.2d 921 (1997) (“Rule 1B of the Administrative Rules for Magistrate Courts
supersedes W.Va. Code § 50-4-7 (1992), and prospectively provides there is no
automatic mandatory right of a party to have a magistrate disqualified.”); Gilman v. Choi,
185 W. Va. 177, 178, 406 S.E.2d 200, 201 (1990), overruled on other grounds by
Mayhorn v. Logan Med. Found., 193 W. Va. 42, 454 S.E.2d 87 (1994) (“W.Va. Code,
55–7B–7 [1986], being concerned primarily with the competency of expert testimony in a
medical malpractice action, is valid under Rule 601 of the West Virginia Rules of
44
Evidence.”); Syl. pt. 2, State v. Davis, 178 W. Va. 87, 88, 357 S.E.2d 769, 770 (1987),
overruled on other grounds State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893(1994) (“Rule 7(c)(1) of the West Virginia Rules of Criminal Procedure supersedes the
provisions of W.Va. Code, 62-9-1, to the extent that the indorsement of the grand jury
foreman and attestation of the prosecutor are no longer required to be placed on the
reverse side of the indictment. Such indorsement and attestation are sufficient if they
appear on the face of the indictment.”); Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d
799 (1985) (invalidating a statute in part that was in conflict with W. Va. R.App. P., Rule
23); State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 425, 306 S.E.2d 233, 236 (1983)
(“W.Va. Code, 30-2-1, as amended, is an unconstitutional usurpation of this Court's
exclusive authority to regulate admission to the practice of law in this State.”); Syl. pt. 2,
in part, Carey v. Dostert, 170 W. Va. 334, 294 S.E.2d 137 (1982) “(West Virginia Code,
30-2-7 and a circuit court's common-law power to disbar are obsolete and have been
superseded by ... the Judicial Reorganization Amendment of our Constitution, Article
VIII.”); State ex rel. Askin v. Dostert, 170 W. Va. 562, 567, 295 S.E.2d 271, 276 (1982)
(holding that to the extent W.Va. Code § 30-2-1 required security from attorneys to
insure their good behavior, it “conflicts with the rules promulgated by this Court [and]
must fall.”).
Before we address the issue of overpayment of senior-status judges, we must
examine the text of the Senior-Status Clause found in Article VIII, § 8 of the Constitution
of West Virginia provides as follows:
45
A retired justice or judge may, with his permission and with the approval of
the supreme court of appeals, be recalled by the chief justice of the supreme
court of appeals for temporary assignment as a justice of the supreme court
of appeals, or judge of an intermediate appellate court, a circuit court or a
magistrate court.
The issue of the authority of the Chief Justice to appoint judges for temporary service has
been addressed in two cases by this Court. First, in State ex rel. Crabtree v. Hash, 180 W.
Va. 425, 376 S.E.2d 631 (1988) the judge for the Fifth Judicial Circuit (consisting of
Calhoun, Jackson and Roane counties) retired from office. A special judge was elected
and appointed to fill the vacancy by several members of the Jackson County Bar
Association, pursuant to W.Va. Code § 51-2-10.30 The Administrative Director of this
Court filed a writ of prohibition to prevent the newly appointed judge from holding
office. The opinion succinctly held that the statute was void as follows:
W.Va. Const. art. VIII, §§ 3 and 8, and all administrative rules made
pursuant to the powers derived from article VIII, supersede W.Va. Code,
51-2-10 [1931] and vest the Chief Justice of the Supreme Court of Appeals
with the sole power to appoint a judge for temporary service in any
situation which requires such an appointment.
***
Any election conducted pursuant to W.Va. Code, 51-2-10 [1931] is void as
the constitutional power to assign judges for temporary service rests with
the Chief Justice of the West Virginia Supreme Court of Appeals.
Crabtree, 180 W. Va. at 428, 376 S.E.2d at 634. In a footnote in Crabtree this Court
made further observations relevant to this proceeding:
W.Va. Const. art. VIII, governing the judiciary, has only been amended
twice in the State's history, in 1880 and 1974. Prior to 1974, the Supreme
Court of Appeals had no constitutionally derived administrative authority
over the lower tribunals of the State. Instead, the legislature had substantial
authority, including the power to create laws concerning special judges.
30
This statute was subsequently repealed.
46
W.Va. Const. art. VIII, § 15 (repealed) stated: “The legislature shall
provide by law for holding regular and special terms of the circuit courts,
where from any cause the judge shall fail to attend, or, if in attendance,
cannot properly preside.”
The upshot of this authority was W.Va. Code, 51-2-10 [1931]. By virtue of
former art. VIII, § 15, this Court had no constitutional authority to act in
such matters.
However, as a result of the Judicial Reorganization Amendment of 1974,
the legislature was divested of all administrative powers over state court
judges. No provision similar to former art. VIII, § 15 exists. Instead, this
Court was given “general supervisory control over all intermediate
appellate courts, circuit courts and magistrate courts,” and the Chief Justice,
as “administrative head of all the courts,” was specifically given the power
of temporary assignment of circuit judges.
Crabtree, 180 W. Va. at 427 n.3, 376 S.E.2d at 633 n.3 (internal citations omitted).
The decision in Stern Bros. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977)
addressed the issue of statutes that attempted to control assignments of judges, but were
in conflict with an administrative rule of this Court. In Stern the defendants filed a writ of
prohibition with this Court to have a substitute trial judge removed from their case. The
trial judge was appointed by the Chief Justice of this Court because the original judge
was disqualified. The defendants argued that the manner in which the substitute judge
was appointed was inconsistent with the statutory scheme for appointing a substitute
judge when the original judge is disqualified. This Court found that the administrative
rule adopted by this Court for the appointment of a substitute judge invalidated the
statutes. The opinion reasoned as follows:
Procedures for appointment of a substitute judge were promulgated by this
Court on May 29, 1975, in an administrative rule dealing with the
temporary assignment of circuit court judges where a particular judge is
disqualified from handling a case….
The power to promulgate administrative rules is expressly conferred upon
this Court under the Judicial Reorganization Amendment, and under
47
Section 8 explicit recognition is made of the inherent rulemaking power of
the Court, which prior to the Judicial Reorganization Amendment had been
utilized by this Court to adopt judicial rules.
Such rules have the force and effect of statutory law by virtue of Article
VIII, Section 8 of the Judicial Reorganization Amendment…. Prior to the
adoption of the Judicial Reorganization Amendment, there may have been
some question as to this Court's supervisory powers over lower courts. It is
now quite clear under the Judicial Reorganization Amendment that
considerable supervisory powers have been conferred upon this Court.
There was also some confusion prior to the Judicial Reorganization
Amendment as to what further action a disqualified judge could take in the
case. This arose partly out of the fact that there was no clear authority in the
Supreme Court to temporarily assign judges in such situations.
Consequently, the disqualified judge had either to initiate the election of a
special judge pursuant to W.Va. Code, 51-2-10, or to attempt to transfer the
case to another circuit court in accordance with W.Va. Code, 56-9-2.
The statute relating to disqualification of judges contained a proviso
permitting the judge “. . . to enter a formal order designed merely to
advance the cause towards a final hearing and not requiring judicial action
involving the merits of the case.” W.Va. Code, 51-2-8….
Undoubtedly, one of the reasons behind the Judicial Reorganization
Amendment was to provide a more simplified system of handling the
problem of securing a replacement judge where the original judge is
disqualified. The former procedures were cumbersome at best. Special
judge elections were constantly attacked and in many instances overturned
because of some technical failure to follow W.Va. Code, 51-2-10.
The administrative rule promulgated by this Court now controls the
procedure for selection of a temporary judge where a disqualification exists
as to a circuit court judge. Under Article VIII, Section 8 of the West
Virginia Constitution, it operates to supersede the existing statutory
provisions found in W.Va. Code, 51-2-9 and -10, and W.Va. Code, 56-9-2,
insofar as they relate to the selection of special judges or the assignment of
the case to another circuit judge when a circuit judge is disqualified.
Stern, 160 W. Va. at 572-575, 236 S.E.2d at 225-227.31
31
It will be noted that the Legislature repealed W.Va. Code §§ 51-2-9 and 10 in 1992.
Although W.Va. Code § 56-9-2 , which was enacted in 1868 and last amended 1923, was
invalidated by Stern the Legislature has not repealed it.
48
In the final analysis, the foregoing discussion instructs this Court that statutory
laws that are repugnant to the constitutionally promulgated rules of this Court are void.
With these legal principles in full view, we turn to the merits of the issue presented.
Two of the Articles of Impeachment brought against the Petitioner, Article IV and
Article VI, charge her with overpaying senior-status judges in violation of the maximum
payment allowed under W.Va. Code § 51-9-10. The Articles of Impeachment also state
that the overpayments violated W.Va. Code § 51-2-13, W.Va. Const. Art. VIII, § 7, an
administrative order of the Supreme Court and Canon I and II of the West Virginia Code
of Judicial Conduct. The Articles also allege that the overpayments “potentially” violate
two criminal statutes: W.Va. Code § 61-3-22 (falsification of accounts) and W.Va. Code
§ 61-3-24 (obtaining money by false pretenses).32 The viability of all of the alleged
violations in the two Articles hinge upon whether the Petitioner overpaid senior-status
judges. The determination of overpayment is controlled by W.Va. Code § 51-9-10, which
limits the payment to senior-status judges. The full text of W.Va. Code § 51-9-10
provides as follows:
The West Virginia supreme court of appeals is authorized and empowered
to create a panel of senior judges to utilize the talent and experience of
former circuit court judges and supreme court justices of this state. The
supreme court of appeals shall promulgate rules providing for said judges
and justices to be assigned duties as needed and as feasible toward the
objective of reducing caseloads and providing speedier trials to litigants
throughout the state: Provided, That reasonable payment shall be made to
said judges and justices on a per diem basis: Provided, however, That the
32
We must note that “potentially” violating a criminal statute is not wrongful
impeachable conduct. Therefore the language in the Articles of Impeachment that state
that W.Va. Code § 61-3-22 and W.Va. Code § 61-3-24 were “potentially” violated are
meaningless allegations.
49
per diem and retirement compensation of a senior judge shall not exceed
the salary of a sitting judge, and allowances shall also be made for
necessary expenses as provided for special judges under articles two and
nine of this chapter.33 (Emphasis added.)
The Petitioner does not dispute that she authorized the payment of senior-status
judges, when necessary, in excess of the limitation imposed by the statute. Although the
Petitioner has advanced several arguments as to why her conduct was valid, we need only
address one of her arguments. That argument centers on an administrative order
promulgated by the Chief Justice on May 17, 2017.34 The order expressly authorized the
payment of senior-status judges in excess of the limitation imposed by W.Va. Code § 51-
9-10. The order stated that it was being promulgated under the authority of Article III, §§
3, 8, and 17. The order also stated the reason for the decision to authorize payment in
excess of the statutory limitation:
In the vast majority of instances, the statutory proviso [W.Va. Code § 51-
9-10] does not interfere with providing essential services. However, in
certain exigent circumstances involving protracted illness, lengthy
suspensions due to ethical violations, or other extraordinary circumstances,
it is impossible to assure statewide continuity of judicial services without
exceeding the payment limitation imposed by the statutory proviso.
The Petitioner provided an illustration of a situation where it was necessary to pay a
senior-status judge in excess of the statutory limitation:
For example, in 2017, the Supreme Court of Appeals suspended a newly
elected circuit court judge of Nicholas County for two years because of
violations of the code of judicial ethics in certain campaign advertisements.
In re Callaghan, 238 W.Va. 495, 503, 796 S.E.2d 604, 612, cert. denied
sub. nom., Callaghan v. W. Virginia Judicial Investigation Comm’n, 138
33
This statute was originally enacted in 1949 and was amended in 1975 and 1991.
34
The Chief Justice at that time was Justice Loughry.
50
S.Ct. 211, 199 L.Ed.2d 118 (2017). Because the newly elected Judge was
suspended for two years, and because Nicholas County is a single judge
judicial circuit, an extraordinary need for temporary judicial services arose
in order to provide the people of Nicholas County with court services and
to avoid the unconstitutional denial of access to the speedy administration
of justice. The Chief Justice appointed senior status Judge James J. Rowe to
serve as the temporary circuit judge of Nicholas County. Judge Rowe
travels from his home in Lewisburg each day to perform this service. Judge
Rowe serves the people of Nicholas County effectively, attending to the
cases on the circuit court’s docket. Using one senior status judge, rather
than parading multiple judges through the courthouse, allows for the
efficient and consistent adjudication of the matters pending in Nicholas
County.
Prior to the Reorganization Amendment, “the Supreme Court of Appeals had no
constitutionally derived administrative authority over the lower tribunals of the State.
Instead, the Legislature had substantial authority, including the power to create laws
concerning special judges.” State ex rel. Crabtree v. Hash, 180 W. Va. 425, 427, 376
S.E.2d 631, 633 (1988). This authority is evident in W.Va. Code § 51-9-10 which, as
noted, was enacted in 1949. We have observed as a general matter that “[t]he 1974
Judicial Reorganization Amendment to our State Constitution also recognized that
previously enacted laws repugnant to it were voided.” Carey v. Dostert, 170 W. Va. 334,
336, 294 S.E.2d 137, 139 (1982). See W.Va. Const. Art. VIII, § 13 (“Except as otherwise
provided in this article, such parts of the common law, and of the laws of this state as are
in force on the effective date of this article and are not repugnant thereto, shall be and
continue the law of this state until altered or repealed by the Legislature.”) (emphasis
added). West Virginia Code § 51-9-10, in its entirety, is repugnant to Article VIII, § 3
and § 8. The statute seeks to control a function of the judicial system, appointing senior-
status judges for temporary service, when Article VIII, § 8 has expressly given that
51
function exclusively to the Supreme Court. Moreover, the statute’s limitation on payment
to senior-status judges is void and unenforceable, because of the administrative order
promulgated on May 17, 2017.35 See Syl. pt. 4, State ex rel. Brotherton v. Blankenship,
157 W.Va. 100, 207 S.E.2d 421 (1973) (“The judiciary department has the inherent
power to determine what funds are necessary for its efficient and effective operation.”).
Finally, as we have long held, “[l]egislative enactments which are not compatible with
those prescribed by the judiciary or with its goals are unconstitutional violations of the
separation of powers.” State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 424, 306
S.E.2d 233, 235 (1983). To be clear, and we so hold, West Virginia Code § 51-9-10
(1991) violates the Separation of Powers Clause of Article V, § 1 of the West Virginia
Constitution, insofar as that statute seeks to regulate judicial appointment matters that are
regulated exclusively by this Court pursuant to Article VIII, § 3 and § 8 of the West
Virginia Constitution. Consequently, W.Va. Code § 51-9-10, in its entirety, is
unconstitutional and unenforceable.36
35
It is not relevant that the administrative order was entered several years after the
Petitioner’s authorized payments. The statute was void at the time in which the
Respondents sought to impeach her.
36
We summarily dispense with the Articles of Impeachment’s reference to the Salary
Clause of Article VIII, § 7 as a source of legislative authority for regulating payments to
senior-status judges. This clause does not provide such authority. The Salary Clause
provides as follows:
Justices, judges and magistrates shall receive the salaries fixed by law,
which shall be paid entirely out of the state treasury, and which may be
increased but shall not be diminished during their term of office, and they
shall receive expenses as provided by law. The salary of a circuit judge
shall also not be diminished during his term of office by virtue of the
52
In light of our holding, the Petitioner did not overpay any senior-status judge as
alleged in Article IV and Article VI of the Articles of Impeachment, therefore the
Respondents are prohibited from further prosecution of the Petitioner under those
Articles.
C.
The Supreme Court has Exclusive Jurisdiction to Determine whether a Judicial
Officer’s Conduct Violates a Canon of the Code of Judicial Conduct
The Petitioner next contends that Article XIV of the Impeachment Articles is
invalid because it is based upon alleged violations of the West Virginia Code of Judicial
Conduct, which, she contends, is constitutionally regulated by the Supreme Court.37 To
statutory courts of record of limited jurisdiction of his circuit becoming a
part of such circuit as provided in section five of this article.
It is clear from the plain text of the Salary Clause that it only applies to salaries of judges
“during their term of office.” See Syl. pt. 1, State ex rel. Trent v. Sims, 138 W.Va. 244, 77
S.E.2d 122 (1953) (“If a constitutional provision is clear in its terms, and the intention of
the electorate is clearly embraced in the language of the provision itself, this Court must
apply and not interpret the provision.”). Senior-status judges are retired judges and do not
hold an office. Therefore, the Salary Clause does not provide the Legislature with
authority to regulate the per diem payment of senior-status judges.
37
The text of Article XIV was set out as follows:
That the said Chief Justice Margaret Workman, Justice Allen Loughry,
Justice Robin Davis, and Justice Elizabeth Walker, being at all times
relevant Justices of the Supreme Court of Appeals of West Virginia,
unmindful of the duties of their high offices, and contrary to the oaths taken
by them to support the Constitution of the State of West Virginia and
faithfully discharge the duties of their offices as such Justices, while in the
exercise of the functions of the office of Justices, in violation of their oaths
of office, then and there, with regard to the discharge of the duties of their
offices, did, in the absence of any policy to prevent or control expenditure,
waste state funds with little or no concern for the costs to be borne by the
tax payers for unnecessary and lavish spending for various purposes
including, but without limitation, to certain examples, such as: to remodel
53
state offices, for large increases in travel budgets-including unaccountable
personal use of state vehicles, for unneeded computers for home use, for
regular lunches from restaurants, and for framing of personal items and
other such wasteful expenditure not necessary for the administration of
justice and the execution of the duties of the Court; and, did fail to provide
or prepare reasonable and proper supervisory oversight of the operations of
the Court and the subordinate courts by failing to carry out one or more of
the following necessary and proper administrative activities:
A) To prepare and adopt sufficient and effective travel
policies prior to October of 2016, and failed thereafter to
properly effectuate such policy by excepting the Justices from
said policies, and subjected subordinates and employees to a
greater burden than the Justices;
B) To report taxable fringe benefits, such as car use and
regular lunches, on Federal W-2s, despite full knowledge of
the Internal Revenue Service Regulations, and further
subjected subordinates and employees to a greater burden
than the Justices, in this regard, and upon notification of such
violation, failed to speedily comply with requests to make
such reporting consistent with applicable law;
C) To provide proper supervision, control, and auditing of the
use of state purchasing cards leading to multiple violations of
state statutes and policies regulating the proper use of such
cards, including failing to obtain proper prior approval for
large purchases;
D) To prepare and adopt sufficient and effective home office
policies which would govern the Justices' home computer
use, and which led to a lack of oversight which encouraged
the conversion of property;
E) To provide effective supervision and control over record
keeping with respect to the use of state automobiles, which
has already resulted in an executed information upon one
former Justice and the indictment of another Justice.
F) To provide effective supervision and control over
inventories of state property owned by the Court and
subordinate courts, which led directly to the undetected
absence of valuable state property, including, but not limited
to, a state-owned desk and a state owned computer;
54
be blunt, Article XIV is an unwieldy compilation of allegations that culminate with the
accusation that the Petitioner’s conduct, with respect to the allegations, violated Canon I38
and Canon II39 of the Code of Judicial Conduct.40 We agree with the Petitioner that this
Court has exclusive constitutional jurisdiction over conduct alleged to be in violation of
the Code of Judicial Conduct.
The controlling constitutional authority is set out under Article VIII, § 8 of the
Constitution of West Virginia. We have held that “[p]ursuant to article VIII, section 8 of
the West Virginia Constitution, this Court has the inherent and express authority to
‘prescribe, adopt, promulgate and amend rules prescribing a judicial code of ethics, and a
code of regulations and standards of conduct and performances for justices, judges and
G) To provide effective supervision and control over
purchasing procedures which directly led to inadequate cost
containment methods, including the rebidding of the
purchases of goods and services utilizing a system of large
unsupervised change orders, all of which encouraged waste of
taxpayer funds.
The failure by the Justices, individually and collectively, to carry out these
necessary and proper administrative activities constitute a violation of the
provisions of Canon I and Canon II of the West Virginia Code of Judicial
Conduct.
38
Canon I states the following:
A judge shall uphold and promote the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and the appearance
of impropriety.
39
Canon II states the following:
A judge shall perform the duties of judicial office impartially, competently,
and diligently.
40
We will note that Article IV and Article VI of the Articles of Impeachment also
contained allegations that Canon I and Canon II were violated.
55
magistrates, along with sanctions and penalties for any violation thereof [.]’” Syl. pt. 5,
Committee on Legal Ethics v. Karl, 192 W.Va. 23, 449 S.E.2d 277 (1994). The relevant
text of Section 8 provides as follows:
Under its inherent rule-making power, which is hereby declared, the
supreme court of appeals shall, from time to time, prescribe, adopt,
promulgate and amend rules prescribing a judicial code of ethics, and a
code of regulations and standards of conduct and performances for justices,
judges and magistrates, along with sanctions and penalties for any violation
thereof, and the supreme court of appeals is authorized to censure or
temporarily suspend any justice, judge or magistrate having the judicial
power of the state, including one of its own members, for any violation of
any such code of ethics, code of regulations and standards, or to retire any
such justice, judge or magistrate who is eligible for retirement under the
West Virginia judges' retirement system (or any successor or substituted
retirement system for justices, judges and magistrates of this state) and
who, because of advancing years and attendant physical or mental
incapacity, should not, in the opinion of the supreme court of appeals,
continue to serve as a justice, judge or magistrate.
***
When rules herein authorized are prescribed, adopted and promulgated,
they shall supersede all laws and parts of laws in conflict therewith, and
such laws shall be and become of no further force or effect to the extent of
such conflict.
This Court’s express constitutional authority to adopt rules of judicial conduct and
discipline is obvious from the language of Section 8. Pursuant to this express authority,
we have adopted the Code of Judicial Conduct and the Rules of Judicial Disciplinary
Procedure. Under Rule 4.10 and Rule 4.11 of the Rules of Judicial Disciplinary
Procedure, this Court has the exclusive authority to determine whether a justice, judge, or
magistrate violated the Code of Judicial Conduct. The record does not disclose that this
Court has found that the Petitioner violated Canon I or Canon II, based upon the
allegations alleged in Article XIV of the Articles of Impeachment. Moreover, even if the
56
record had disclosed that the Petitioner was previously found to have violated the
Canons in question, those violations could not have formed the basis of an impeachment
charge. This is because of the limitations imposed upon the scope of a Canon violation
that is found by this Court. The following is provided in Item 7 of the Scope of the Code
of Judicial Conduct:
The Code is not designed or intended as a basis for civil or criminal
liability. Neither is it intended to be the basis for litigants to seek collateral
remedies against each other or to obtain tactical advantages in proceedings
before a court.
It is quite clear that Item 7 prohibits a Canon violation from being used as the “basis” of a
civil or criminal charge and, thus, could not be used as a basis for impeaching the
Petitioner.41 This Court observed in In re Watkins, 233 W. Va. 170, 757 S.E.2d 594(2013):
Just as the legislative branch has the power to examine the qualifications of
its own members and to discipline them, this Court has the implicit power
to discipline members of the judicial branch. The Court has this power
because it is solely responsible for the protection of the judicial branch, and
because the power has not been constitutionally granted to either of the
other two branches.
Watkins, 233 W. Va. at 177, 757 S.E.2d at 601.
It is quite evident to this Court that the impeachment proceedings under Article
XIV of the Articles of Impeachment requires the Court of Impeachment to make a
41
It has long been recognized that an impeachment proceeding is civil in nature. See
Skeen v. Craig, 31 Utah 20, 86 P. 487, 487-488 (1906) (“The question as to whether
[impeachment] proceedings of this kind to remove from office a public official are civil
or criminal has been before the courts of other states, and, while the decisions are not
harmonious, yet the great weight of authority, and as we think the better reasoned cases
hold that such actions are civil.”).
57
determination that the Petitioner violated Canon I and Canon II. Such a determination in
that forum violates the separation of powers doctrine, because pursuant to Article VIII, §
8 of the Constitution of West Virginia, this Court has the exclusive authority to determine
whether the Petitioner violated either of those Canons. In other words, and we so hold,
this Court has exclusive authority and jurisdiction under Article VIII, § 8 of the West
Virginia Constitution and the rules promulgated thereunder, to sanction a judicial officer
for a violation of a Canon of the West Virginia Code of Judicial Conduct. Therefore, the
Separation of Powers Clause of Article V, § 1 of the West Virginia Constitution prohibits
the Court of Impeachment from prosecuting a judicial officer for an alleged violation of
the Code of Judicial Conduct.
The Respondents have argued that “to hold that the Legislature cannot consider
the Code of Judicial Conduct in its deliberation of impeachment proceedings against a
judicial officer would have the absurd result of prohibiting removal from office for any
violations of the Code of Judicial Conduct.” This argument misses the point.
Unquestionably, the Legislature can consider in its deliberations whether there was
evidence showing that this Court found a judicial officer violated a Canon. However, the
Canon violation itself cannot be the basis of the impeachment charge--at most it could
only act as further evidence for removal based upon other valid charges of wrongful
conduct.
In light of our holding, the Court of Impeachment does not have jurisdiction over
the alleged violations set out in Article XIV of the Articles of Impeachment, therefore the
58
Respondents are prohibited from further prosecution of the Petitioner under that Article
as written.42
D.
The Articles of Impeachment were Filed in Violation
of Provisions of House Resolution 201
Although we have determined that the Petitioner is entitled to relief based upon
the foregoing, we believe that the remaining issues involving the failure to comply with
two provisions of House Resolution 201 are not moot. This Court set forth a three-prong
test to determine whether we should rule on the merits of technically moot issues in
syllabus point 1 of Israel by Israel v. West Virginia Secondary Schools Activities
Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989):
Three factors to be considered in deciding whether to address technically
moot issues are as follows: first, the court will determine whether sufficient
collateral consequences will result from determination of the questions
presented so as to justify relief; second, while technically moot in the
immediate context, questions of great public interest may nevertheless be
addressed for the future guidance of the bar and of the public; and third,
issues which may be repeatedly presented to the trial court, yet escape
review at the appellate level because of their fleeting and determinate
nature, may appropriately be decided.
42
We must also note that even if Article XIV of the Articles of Impeachment had set out
a valid basis for impeachment, it would still not pass constitutional muster on due process
grounds, because it is vague and ambiguous. See State v. Bull, 204 W. Va. 255, 261, 512
S.E.2d 177, 183 (1998) (“Claims of unconstitutional vagueness in [charging instruments]
are grounded in the constitutional due process clauses, U.S. Const. amend. XIV, Sec. 1,
and W.Va. Const. art. III, Sec. 10.”). As drafted, the Article failed to specify which
Justice committed any of the myriad of conduct allegations. The Petitioner had a
constitutional right to be “adequately informed of the nature of the charge[.]” State v.
Hall, 172 W. Va. 138, 144, 304 S.E.2d 43, 48 (1983). See Single Syllabus, Myers v.
Nichols, 98 W. Va. 37, 126 S.E. 351 (1925) (“While charges for the removal of a public
officer need not be set out in the strict form of an indictment, they should be sufficiently
explicit to give the defendant notice of what he is required to answer.”).
59
We believe that there may be collateral consequences in failing to address the issues, the
issues are of great public importance, and the issues may present themselves again. State
ex rel. McKenzie v. Smith, 212 W. Va. 288, 297, 569 S.E.2d 809, 818 (2002) (“Because
of the possibility that the Division's continued utilization of this system may escape
review at the appellate level, we address the merits of this case under the ... exception to
the mootness doctrine.”).
The Petitioner has argued that House Resolution 201 required the House
Committee on the Judiciary to set out findings of fact in the Articles of Impeachment and
required the House of Delegates adopt a resolution of impeachment. The Petitioner
contends that neither of these required tasks were performed and that her right to due
process was violated as a consequence. We agree.
We begin by noting that “[t]he threshold question in any inquiry into a claim that
an individual has been denied procedural due process is whether the interest asserted by
the individual rises to the level of a ‘property’ or ‘liberty’ interest protected by Article III,
Section 10 of our constitution.” Clarke v. West Virginia Board of Regents, 166 W.Va.
702, 709, 279 S.E.2d 169, 175 (1981).43 See Syl. Pt. 1, Waite v. Civ. Serv. Comm’n, 161
W.Va. 154, 241 S.E.2d 164 (1977), overruled on other grounds West Virginia Dep't of
Educ. v. McGraw, 239 W. Va. 192, 800 S.E.2d 230 (2017) (“The Due Process Clause,
Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards
43
Article III, § 10 of the Constitution of West Virginia provides as follows:
No person shall be deprived of life, liberty, or property, without due
process of law, and the judgment of his peers.
60
against state action which affects a liberty or property interest.”). We have held as a
general matter that “[a]n administrative body must abide by the remedies and procedures
it properly establishes to conduct its affairs.” State ex rel. Wilson v. Truby, 167 W. Va.
179, 188, 281 S.E.2d 231, 236 (1981). The Petitioner has both a liberty44 and property45
interest in having the impeachment rules followed. The Petitioner has a liberty interest in
not having her reputation destroyed in the legal community and public at-large by being
impeached and removed from office; and she has a property interest in obtaining her
pension when she chooses to retire.
We begin by noting the record supports the Petitioner’s contention that House
Resolution 201 required the Judiciary Committee to set out findings of fact, and that this
was not done. Rule 3 and 4 of Resolution 201 required the Judiciary Committee to do the
following:
3. To make findings of fact based upon such investigation and hearing(s);
44
See Syl. pt. 2, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 154, 241 S.E.2d 164, 165
(1977), overruled on other grounds West Virginia Dep't of Educ. v. McGraw, 239 W. Va.
192, 800 S.E.2d 230 (2017) (“The ‘liberty interest’ includes an individual's right to freely
move about, live and work at his chosen vocation, without the burden of an unjustified
label of infamy. A liberty interest is implicated when the State makes a charge against an
individual that might seriously damage his standing and associations in his community or
places a stigma or other disability on him that forecloses future employment
opportunities.”).
45
See Syl. pt. 3, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 154, 241 S.E.2d 164, 165
(1977), overruled on other grounds West Virginia Dep't of Educ. v. McGraw, 239 W. Va.
192, 800 S.E.2d 230 (2017) (“A ‘property interest’ includes not only the traditional
notions of real and personal property, but also extends to those benefits to which an
individual may be deemed to have a legitimate claim of entitlement under existing rules
or understandings.”).
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4. To report to the House of Delegates its findings of facts and any
recommendations consistent with those findings of fact which the
Committee may deem proper.
The record demonstrates that the Judiciary Committee was aware that it failed to carry
out the above duties, but refused to correct the error. The following exchange occurred
during the proceedings in the House regarding the failure to follow Rules 3 and 4:
MINORITY VICE CHAIR FLUHARTY: Thank you, Mr. Chairman.
Counsel, I was going through these Articles. Where are the findings of fact?
MR. CASTO: Well, there--there are no findings of fact there. The
Committee--
MINORITY VICE CHAIR FLUHARTY: Where?
MR. CASTO: I said, sir, there are no findings of fact.
MINORITY VICE CHAIR FLUHARTY: There are no findings of fact? All
right. Have you read House Resolution 201?
MR. CASTO: I have sir, but I have not read it today.
MINORITY VICE CHAIR FLUHARTY: Well, do you know that we’re
required to have findings of fact?
MR. CASTO: I think, sir, that my understanding is--based upon the
Manchin Articles--that the term “findings of fact” which was used at the
same time, that the profferment of these Articles is indeed equivalent to a
findings of fact. The--but that, again, is your interpretation, sir.
MINORITY VICE CHAIR FLUHARTY: So based upon the clear wording
of House Resolution 201, it says we’re “To make findings of fact based
upon such investigation and hearings;” and “To report to the Legislature its
findings of facts and any recommendations consistent with those findings
of facts which the Committee may deem proper.” I mean, you’re--you’re
aware how this works in the legal system. You draft separate findings of
fact. I’m just wondering why we haven’t done that.
MR. CASTO: Because, sir, that is not the manner in which impeachment is
done.
MINORITY VICE CHAIR FLUHARTY: Well, findings of fact in House
Resolution 201 are referenced separate from proposed Articles of
Impeachment. Am I wrong in that observation?
MR. CASTO. I don’t believe that you’re wrong in that.
The record also discloses that the Judiciary Committee was warned by one of its
members of the consequences of its failure to follow its own rules:
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MINORITY CHAIR FLEISCHAUER: Thank you, Mr.--thank you, Mr.
Chairman. I think the gentleman has raised a valid point. If we look at the
Resolution that empowers this Committee to act, it--it says that we are to
make findings of fact based upon such investigation and hearing and to
report to the House of Delegates its findings of fact and any
recommendations consistent with those findings, of which the Committee
may deem proper.
***
And I’m just a little concerned that if we don’t have findings of fact that
there could be some flaw that could mean that the final Resolution by the
House would be deemed to be not valid.
***
So I think we--if there--there would be some wisdom in trying to track the
language of the Resolution, and it would be consistent with any other
proceeding that we have in West Virginia that when there are requirements
of findings of fact and--in this case, it’s not conclusions of law, but it’s
recommendations--that we should follow that.
As previously stated, the Petitioner has also asserted that the House of Delegates
failed to adopt a resolution of impeachment. Rule 2 of the last Further Resolved section
of Resolution 201 provides as follows:
Further resolved ... that the House of Delegates adopt a resolution of
impeachment and formal articles of impeachment as prepared by the
Committee; and that the House of Delegates deliver the same to the Senate
in accordance with the procedures of the House of Delegates, for
consideration by the Senate according to law.
A review of the Articles of Impeachment that were submitted to the Senate
unquestionably shows that the House of Delegates failed to include language indicating
that the Articles were adopted by the House.
We are gravely concerned with the procedural flaws that occurred in the House of
Delegates. Basic due process principles demand that governmental bodies follow the
rules they enact for the purpose of imposing sanctions against public officials. This right
to due process is heightened when the Legislature attempts to impeach a public official.
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Therefore we hold, in the strongest of terms, that the Due Process Clause of Article III, §
10 of the Constitution of West Virginia requires the House of Delegates follow the
procedures that it creates to impeach a public officer. Failure to follow such rules will
invalidate all Articles of Impeachment that it returns against a public officer.
We must also point out that the Petitioner was denied due process because none of
the Articles of Impeachment returned against her contained a statement that her alleged
wrongful conduct amounted to maladministration, corruption, incompetency, gross
immorality, neglect of duty, or any high crime or misdemeanor, as required by Article IV,
§ 9 of the Constitution of West Virginia. This is the equivalent of an indictment failing to
allege the essential elements of wrongful conduct. See Syl. pt. 1, State ex rel. Combs v.
Boles, 151 W. Va. 194, 151 S.E.2d 115 (1966) (“In order to lawfully charge an accused
with a particular crime it is imperative that the essential elements of that crime be alleged
in the indictment.”).
V.
CONCLUSION
We have determined that prosecution of Petitioner for the allegations set out in
Article IV, Article VI and Article XIV of the Articles of Impeachment violates the
separation of powers doctrine. The Respondents do not have jurisdiction over the alleged
violations in Article IV and Article VI. The Respondents also do not have jurisdiction
over the alleged violation in Article XIV as drafted. In addition, we have determined that
the failure to set out findings of fact, and to pass a resolution adopting the Articles of
Impeachment violated due process principles. Consequently, the Respondents are
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prohibited from proceeding against the Petitioner for the conduct alleged in Article IV
and Article VI, and in Article XIV as drafted. The Writ of Prohibition is granted. The
Clerk is hereby directed to issue the mandate contemporaneously forthwith.
Writ granted.
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