Letting Sleeping Dogs Lie

Many of those involved in West Virginia’s impeachment summer seem to just want to put it all behind them and move on. That isn’t a bad idea, even though a critical question remains unanswered. It may come back to haunt us.

Three of the five people who were state Supreme Court justices at the beginning of summer are gone. Former Justices Robin Davis, Menis Ketchum and Allen Loughry quit because of the scandal involving waste of taxpayers’ money and, for Ketchum and Loughry, crimes commited while in office. Four of them were impeached by the House of Delegates (Ketchum resigned first).

Justice Elizabeth Walker was tried and acquitted by the state Senate. A trial for Justice Margaret Workman was stymied by the high court itself, acting through five circuit judges appointed temporarily as justices. Their ruling insisted the House hadn’t handled impeachment properly.

Much more important, the court maintained impeachment by the Legislature infringed upon the almost sacred doctrine of separation of powers.

I’ve already suggested lawmakers should just forget about a trial for Workman. It’s time to move on.

But what about the separation of powers ruling? The state’s highest court was, in effect, throwing down the gauntlet to legislators. It is far from hyperbolic to think the (temporary) justices were saying the courts are not bound by state laws — and the Legislature can’t do anything about it.

Fast forward. Two new justices, Tim Armstead and Evan Jenkins, have been elected to the Supreme Court. An interim replacement for Loughry will be appointed by Gov. Jim Justice.

Walker, Workman, Jenkins and Armstead all have indicated they want to correct the problems that led to the impeachments. They want to limit spending by the judiciary. They want new rules to avoid misbehavior.

Apparently, the point — that Mountain State residents won’t tolerate what amounts to an imperial court — has been made.

But there’s still that high court ruling on the books, maintaining that no one but the judicial branch can exercise control over the judiciary.

State senators had asked that the court reconsider its ruling. Last week, however, the court — again through five circuit judges serving temporarily as justices — ruled that will not happen.

Now, this gets strange. Recall that the original ruling stated, in effect, that the judicial branch would police itself. Last week’s order stated of that decision that, “This court does not have the inherent authority to recall its mandate and there are no extraordinary circumstances that exist that warrant recalling the mandate.”

So, the judges/justices are saying that they had the power to stop the Legislature — but do not have the power to change that ruling.

I told you it was strange.

What do legislators do now? The court has told them, in essence, not to bother doing anything. Sounds almost like the child rebelling against a parent by clapping his hands over his ears and insisting, “I can’t hear you!”

Let’s hope it’s a great many years before legislators have any reason to impeach any more justices or, for that matter, circuit judges or magistrates.

This being West Virginia, however, we can’t be certain there will be no more grounds for confrontation. For now, under the ruling the high court has said it won’t — can’t — review, the judicial branch continues to insist it is not subject to discipline by the Legislature. If cause for impeachment comes up in the future, we’ll have to start back at square one on sorting that out.

A future impeachment would provide the “extraordinary circumstances” warranting re-examination of the ruling on separation of powers, of course. But weeks, perhaps months — and, in all likelihood, an appeal to the U.S. Supreme Court — would be required for that.

Lawmakers have every right to be perturbed the question hasn’t been and apparently won’t be resolved in the immediate future.

Still, it may be time to move on and let sleeping dogs lie.

Myer can be reached at: mmyer@theintelligencer.net.


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