W.Va. Senate will sit as jury

By Steven Allen Adams

Special to the Times

CHARLESTON — When members of the West Virginia Senate meet this week, it will be the first time the body has met as a jury to remove an elected official from office in 142 years.

This time, the Senate will make triple history when they consider articles of impeachment against not just one justice, but all three remaining elected justices of the West Virginia Supreme Court of Appeals.

It’s a set of circumstances that Senate President Mitch Carmichael, R-Jackson, and Senate Minority Leader Roman Prezioso, D-Marion, could never have predicted they would see in their lifetime.

“Certainly no one imagines that when you begin a legislative session that it will end in impeachment of anyone,” Carmichael said. “But having said that, we certainly respect the responsibility that has been placed on us by the people of West Virginia to ensure that our public officials are performing their tasks in a manner that is commiserate with the expectations of the people.”

“I never thought I’d be in a position like this,” Prezioso said. “We never thought this would go further than the impeachment process in the House because their retirement is at stake and why would you want to risk your retirement? We never thought anything would get this far and certainly not like the situation we’re in now with the Supreme Court.”

Prezioso was a member of the House of Delegates in 1989 when the House impeached the late State Treasurer A. James Manchin, who resigned before the Senate could try him.

“I remember the inquiry that the House Judiciary Committee had and when it came to use for the vote.,” Prezioso said. “We thought then that that was amazing.”

Tuesday, Sept. 11, starts the first step in the Senate’s impeachment trial process. The day will start with a pre-trial conference presided over by Acting Chief Justice Paul Farrell, a Cabell County circuit judge. The Supreme Court justices will be represented by their attorneys. Several members of the House, appointed as impeachment managers, will act as prosecutors. The Senate’s job is to sit as jury.

“We don’t expect that to take very long,” Carmichael said. “We expect to wrap that up in a day. Then the trial dates will be set, and the order of the trials will be set by the presiding officer. Justice Farrell has a great reputation and we expect that he will move the trial along in a professional, first-class manner.”

The House adopted 11 articles of impeachment Aug. 14 against all sitting justices. Chief Justice Margaret Workman is charged with two articles of impeachment and Justice Beth Walker is charged in one article. Justice Allen Loughry faces the most articles, being charged in seven articles of impeachment. Justice Robin Davis, who was charged in three articles, announced her resignation that same day.

“When there is something that is amiss, we have every obligation to review and analyze the evidence and make decisions upon – in this case – guilt or innocence,” Carmichael said.

While the trials will ultimately be held in the Senate chamber, this will not be a typical session. There will be no Senate president, no minority leader, no parties – every senator will be on equal footing as jurors.

It won’t have the same standards as a criminal trial, such as proving guilt beyond a reasonable doubt. It will take two-thirds of senators to decide simply to convict or not convict a justice on an article of impeachment. If the vote is to convict, the minimum sentence is removal from office, though senators can also vote to prohibit the justice from running for any office in the future.

The weight of such decisions is not lost on Carmichael.

“All of us take this responsibility very seriously,” Carmichael said. “We know that we are empaneled as a jury. We will be impartial. We will be transparent. We will be professional. No one will reveal, discuss, or have any predispositions about the evidence prior to its presentment.”

In preparation for Tuesday, Prezioso sought the counsel of Kevin Baker, the attorney to the Senate Democrats, as well as other attorneys.

“Here’s what I’ve been advised by my attorneys: don’t worry about the outcome, worry about reviewing the evidence,” Prezioso said. “Look at all the evidence and make a choice and make a decision based on that evidence, not on the outcome of the trial.”

The Post Audit Division of the Legislative Auditor’s Office on Friday released additional information regarding the extravagant spending and waste by the Supreme Court, adding new evidence for consideration in the impeachment trial process.

The report focuses on three issues: the spend-down of millions of surplus dollars over four years, spending approximately $3.4 million on office renovations during the same time period, and nearly a decade of violating state code to pay 10 senior status judges more than what statute allowed.

According to the report, the Supreme Court spent down a $29 million budget surplus between fiscal years 2012 and 2015. During those four years, that $29 million was spent down to $333,514.

Most of the money – more than $6.3 million – in fiscal year 2012 was funneled into pay increases for judges, justices, and magistrates, as well as renovations. Another $7.4 million was spent from surplus funds in fiscal year 2013, with most of the spending spread out among salary increases, computer services, and renovations.

In fiscal year 2014, the court returned $4 million to the state’s general fund during a tough budget year, but still managed to spend an additional $9.4 million of surplus money. The largest expenditures that year included salary increases, computer services, attorney legal services, and renovations. More than $1.7 million couldn’t be accounted for. Fiscal year 2015 was the first year that there were no renovations, and salary increases came in below $1 million for the first time.

In the next issue focused on by the report, the justices spent more than $3.4 million on renovations to their offices and other areas of the Supreme Court between 2012 and 2016.