Davis seeks injunction to stop impeachment

September 28, 2018

CHARLESTON — Former West Virginia Supreme Court justice Robin Davis sued Gov. Jim Justice and West Virginia legislators Wednesday, claiming they impeached her in an effort to create a conservative and male-majority Supreme Court.

Davis wants a federal judge to grant an injunction to stop the impeachment trial against her and declare that the articles of impeachment passed by the House of Delegates are invalid, unfounded and contrary to the law, according to the complaint filed in U.S. District Court for the Southern District of West Virginia.

Davis also says her ability to defend herself in the Senate trial is limited because the Senate’s rules for the court of impeachment prohibit her and the impeached justices from having access to evidence collected by the House of Delegates and from cross-examining witnesses during the trial.

Davis said the House voted to adopt articles of impeachment based on information they knew was incomplete, and delegates didn’t have any factual or legal basis to impeach her — especially considering she, Chief Justice Margaret Workman and Justice Beth Walker are not subject to federal criminal indictments like former justice Menis Ketchum and suspended Justice Allen Loughry.

“What is more, the facts cited purportedly to support impeachment do not remotely rise to the level of impeachable conduct,” Davis said in the complaint.

“But the House was not interested in investigating whether the facts warranted impeachment. Instead, it used these charges as a pretext to remove all four justices on West Virginia’s highest court so that the governor could replace the popularly elected justices with Republican men and create a ‘conservative court’ for years to come.”

In a news release Wednesday afternoon, Delegates Pat McGeehan, R-Hancock, and Mike Folk, R-Berkeley, accused Workman and Davis of trying to unconstitutionally obstruct the Legislature’s impeachment duty by filing legal actions.

Last week, Workman filed a petition with the state Supreme Court seeking an injunction to halt the impeachment trials in the Senate.

The men said Workman’s and Davis’ cases “should be thrown out of court on their face,” and those named as defendants “should not even file a response to the matter.”

Gov. Justice’s proclamation calling the Legislature into special session to consider impeaching the justices paired with the timing and methods of impeachment are what Davis said are the grounds to show an attempt to overrun the court.

She noted an Aug. 25 press conference in which the governor announced his appointments to temporarily replace her and Ketchum.

“What we need to do more than anything is repair and move on and show the nation, the nation, just how committed we are, as West Virginians, to have a solid court — in my opinion, without any question, a conservative court, a court that reflects the strength and conservative values of our people,” Justice said during the conference. “That’s what West Virginians are all about.”

Davis said the articles of impeachment regarding the court’s spending, particularly on office renovations, violates West Virginia law giving the Supreme Court independence to control its own budget, and they are based on financial information that wasn’t complete, Davis said.

On Aug. 6, Supreme Court Finance Director Sue Racer-Troy presented to the House Judiciary Committee a binder containing more than 1,000 documents related to the renovations in the court. At the time, Racer-Troy said the binder might not reflect a consistent cost comparison for the renovations to the justices’ offices.

In her lawsuit, Davis also said the House adopted the articles of impeachment even though they were not supported by findings of fact, as required in House Resolution 201. Davis noted that at least one lawmaker. House Judiciary Minority Chairwoman Barbara Fleischauer, D-Monongalia, raised that issue during the committee’s impeachment proceedings.

Findings of fact in court generally provide a narrative of the events that lead to allegations that person violated the law, or in this case, committed an impeachable offense.

Davis said the timing of the articles of impeachment was structured to allow the governor to appoint temporary Supreme Court justices for about two years until voters could pick replacements in 2020.

Under state law, special elections for vacant judicial seats in West Virginia only take place during scheduled primary and general elections.

Davis retired from the court effective Aug. 13, and Ketchum announced his resignation from the court on July 11. His resignation was effective July 27.

Davis noted that Ketchum’s resignation excluded him from impeachment proceedings under House rules for impeachment, but she challenged the notion that she should still be subject to impeachment after leaving office.

She also says the articles of impeachment adopted in the House are invalid because the House never formally adopted House Resolution 202, the document that put the articles of impeachment on legislative record.

Davis says her First Amendment rights were violated because the governor’s proclamation and her subsequent removal from office was motivated based on her status as a Democrat and the opinions she issued as a justice on the court.

Davis was elected to the court in 1996, 2000 and 2012 as a Democrat, before judicial elections in the state became nonpartisan.

In her lawsuit, Davis said the impeachment violates the state’s separation of powers clause and it violates the equal protection clause by disenfranchising voters via impeachment and removal from office of elected officials by the Legislature and the subsequent potential appointments by the governor without voter input.

Davis is scheduled to stand trial on four articles of impeachment before the state Senate on Oct. 29. She is accused of maladministration, authorizing the over-payment of senior status judges and facilitating “necessary and lavish” spending to renovations to her former office in the Supreme Court facilities in the East Wing of the West Virginia Capitol.

On Sept. 11, the Senate rejected a motion to dismiss the articles of impeachment against Davis, who effectively retired from the state’s highest court after 22 years of service, the same day members of the House of Delegates voted to adopt 11 total articles of impeachment against her. Workman, Walker and Loughry.

Justice, 67 delegates in the House, 19 senators, House Clerk Steve Harrison and Senate Clerk Lee Cassis are named as defendants in the case.

The 19 senators named as defendants are the 19 senators who voted against dismissing the articles of impeachment against Davis on Sept. 11, and the delegates are those who at some point voted to adopt any article of impeachment against Davis in the House.

The case had not been assigned to a judge as of press time Wednesday.

Davis is represented by Bob Allen and Pamela Deem of Kay Casto & Chaney in Charleston, James M. Cole from Sid-ley Austin LLP in Washington, D.C., and Tacy F. Flint, Heather Benzmiller Sultanian and John K. Adams of Sidley Austin’s Chicago office. Cole is a former U.S. deputy attorney general.

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