CHARLESTON — Justice Margaret Workman has filed a petition with the very Supreme Court that she serves on, challenging the legality of impeachment proceedings in the House of Delegates and requesting a stay of impeachment trial in the Senate.
“This writ is not intended to provoke a constitutional crisis; it is intended to prevent one,” wrote the lawyers representing Workman.
The chief justice, Workman issued an order disqualifying herself from hearing her own petition for writ of mandamus.
Justice Beth Walker also disqualified herself, as did Paul Farrell, a Cabell circuit judge who is serving in place of suspended Justice Allen Loughry. Farrell is presiding over the impeachment trials in the Senate.
Thomas McHugh, a senior status judge and former Supreme Court justice, was temporarily assigned to the court to appoint an acting chief justice who would then appoint four other acting justices.
McHugh filed an order late Friday afternoon appointing Judge James Matish of the 15th Judicial Circuit to be acting chief justice in the case. Now Matish will appoint four more justices to be the substitute Supreme Court.
Delegates voted to impeach Workman along with the other remaining members of the state Supreme Court on Aug. 13 on allegations that they had overstepped their authority and committed acts of maladministration.
Workman is set for a trial in the Senate starting Oct. 15.
Her petition for writ of mandamus was filed Friday with the Supreme Court. It names Senate President Mitch Carmichael, Senate pro tempore Donna Boley, Senate Majority Leader Ryan Ferns, Senate Clerk Lee Cassis and the rest of the Senate.
They have been asked to file a response by Oct. 3. After that, the acting court could consider the case.
Workman’s lawyers from the Huntington firm Nelson Mullins Riley & Scarborough have asked for oral arguments.
Their petition contends the Legislature overstepped its bounds when delegates voted to impeach Workman on three charges.
The petition contends the justice was actually fulfilling her own constitutional duty.
Workman faces three articles. One is an all-encompassing maladministration charge, saying the justices failed to hold each other accountable.
That article accuses all four remaining justices of failing to establish policies about remodeling state offices, travel budgets, computers for home use and framing of personal items.
The other two articles that name Workman are somewhat redundant. They allege she signed off on a policy skirting state law by allowing senior status judges to exceed a cap on how much money they can make each year when they serve in open courtrooms around the state.
One of those two articles specifically names Workman. In the other, Workman and Davis are named together.
Workman’s petition begins succinctly: “On August 13, 2018, the West Virginia House of Delegates (‘the House’) broke the law.”
“On that day, the House adopted numerous Articles of Impeachment (‘Articles’) setting the Petitioner to stand trial before the West Virginia Senate (‘the Senate’).”
The petition lays out the basics of Workman’s argument:
“What nefarious deeds of the Petitioner served as the basis for these Articles? The Petitioner had the audacity to fulfill her constitutional mandate of ensuring that West Virginia court efficiently serve West Virginia citizens by appointing senior status judges to fill judicial vacancies.
“She had the audacity to exercise her constitutional authority to pass and utilize a budget for the State’s judicial branch. In short, she had the audacity to perform and exercise the powers mandated to her by the West Virginia Constitution.”
The impeachment trials in the Senate are scheduled to begin Oct. 1 with Justice Beth Walker, who faces one article that she failed to hold her fellow justices accountable.
During a pretrial hearing Sept. 11, senators knocked down a proposed settlement that would have kept Workman and Walker on the court.
Impeachment articles would have been dismissed for Walker and Workman. Instead, they would have agreed to accept censure and steer the court toward greater responsibility.
The proposed deal was presented in the form of a resolution. Ferns called a point of order. He said it required senators — who serve in a dual role as jurors — to assess guilt or innocence without having heard any evidence.
So trial in the Senate has appeared inevitable, but today’s filing may throw a wrench. Workman’s filing contends the House’s articles seek to punish her “for performing duties explicitly reserved for the judicial branch.”
The filing acknowledges the constitutional power of the Legislature to impeach, but contends that accusations that justices violated the canons of judicial conduct is set aside constitutionally to the judicial branch to determine.
And the filing contends the House failed to provide due process to Workman as a citizen.
“Because the petitioner is a lifelong public servant, the impeachment proceedings threaten the very pension that she has worked her whole career to attain,” her lawyers wrote.
The petition contends the House “never adopted the necessary language to proceed with impeachment.”
That’s essentially a parliamentary procedure argument, claiming the House initially stated the articles of impeachment as a resolution, then voted on them one by one without passing the full resolution.
Workman’s lawyers asked, “Does the West Virginia House of Delegates’ failure to adopt the enabling Resolution render the Articles of Impeachment null and void and, standing alone, meaningless?”