On April 9, the West Virginia State Legislature voted to refer a constitutional amendment to the 2022 ballot that would say that no state court has jurisdiction to intercede, intervene in, or interfere with impeachment proceedings of the West Virginia House of Delegates or the state Senate. Currently, the state constitution does not state a role for the state judiciary to participate or review impeachment proceedings, apart from the chief justice of the state supreme court presiding over the proceedings.
The amendment was proposed in response to an investigation and impeachment proceedings for multiple West Virginia Supreme Court Justices in 2018. The justices were accused of misusing over $1 million in state funds for courthouse office renovations; misuse of state vehicles; and illegal payments to senior judges.
In June 2018, the House of Delegates unanimously approved a resolution authorizing the House Judiciary Committee to conduct an impeachment investigation into the justices. On September 21, 2018, Justice Margaret Workman, one of the impeached justices, filed a motion with the state supreme court arguing the impeachment proceedings violated the state constitution’s separation of powers clause. On October 11, five circuit court judges temporarily assigned to the state supreme court blocked Justice Workman’s impeachment trial from proceeding.
The justices ruled the impeachment proceedings violated the state constitution’s separation of powers clause, arguing the state Senate did not have the authority to impeach Workman. The ruling was later applied to Justices Robin Davis and Allen Loughry.
Between July and November 2018, Justices Menis Ketchum, Robin Davis, and Allen Loughry resigned from the supreme court. The Senate censured Justice Beth Walker but did not remove her from office. Workman served on the court until her retirement in December 2020.
In West Virginia, to put a legislatively referred constitutional amendment before voters, a two-thirds (66.67%) supermajority vote is required in both the West Virginia State Senate and the West Virginia House of Delegates, which equates to 23 votes in the state Senate and 67 votes in the state House.
The state Senate first attempted to place the amendment to limit the state judiciary from intervening in impeachment proceedings on the ballot during the 2020 legislative session. It was defeated along party lines with 20 Republicans favoring the amendment and 13 Democrats opposing it.
In the 2020 general election, Republicans gained the votes they needed to meet the supermajority requirement in both chambers. Republicans gained three seats in the state Senate to increase their majority from 20-14 to 23-11. Republicans also increased their majority in the state House from 58-41 (with one vacancy) to 76-24. The Republican majority increased to 77-23 after Del. Jason Barrett switched his party affiliation from Democrat to Republican in December 2020.
The 2021 amendment was introduced as House Joint Resolution 2 (HJR 2) on February 11, 2021. On March 2, the state House approved the amendment by a vote of 78-21 with one Republican absent. The vote was largely along party lines with two Democrats joining the voting Republicans in support. On April 9, the state Senate approved the amendment along party lines with a vote of 23-11. West Virginia voters will decide the amendment and at least two others at the 2022 general election.
State Delegate Pat McGeehan (R) said, “[The amendment] has everything to do with restoring the separation of powers. We need to restore our own rightful powers as a legislative branch, because since [the 2018 Workman decision] … the legislative branch has essentially been reduced to a social club. The impeachment powers are the last line of defense that we have in the state constitution. We have to pass this and ensure that we take our place again, to be able to enforce this kind of power and the threat of it.”
Julie Archer, the coordinator of West Virginia Citizens for Clean Elections, which opposes the amendment, said, “This constitutional amendment would make it so that no state court could intervene to protect the right to a fair hearing of a public official facing impeachment, no matter how frivolous the charge or constitutionally flawed the process. In the hands of a partisan majority, this new power could be abused to oust political opponents without cause, thereby eroding existing checks and balances between the three branches of government and undercutting public trust in the political process.”