The historic impeachment trial of Justice Beth Walker resumed on October 2, 2018. This trial day was short, consisting of only one witness called by the House impeachment managers and closing arguments by the parties.
The West Virginia Constitution declares that “any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.” Walker has been charged in the Articles of Impeachment, which were broadly drafted to cover the conduct of the four Justices involved, in this language:
[Walker] did, in the absence of any policy to prevent or control expenditure, waste state funds with little or no concern for the costs to be borne by the tax payers for unnecessary and lavish spending for various purposes including, but without limitation, . . . to remodel state offices, [and] for regular lunches from restaurants.
Walker’s conduct described at the trial could only conceivably fall into the categories of maladministration or neglect of duty. If she has committed offenses, it is hard to see how they could rise to the level of a high crimes and misdemeanors, which are limited to serious offenses against the state like treason.
The trial has been presided over by Judge Paul T. Farrell, a Circuit Judge from Huntington who was appointed temporarily to fill the seat of suspended Chief Justice Loughry. Farrell is Acting Chief Justice for the purpose of the impeachment trial. In his October 1 charge to the assembled Senate, which is functioning as the “court of impeachment,” Farrell said:
This is your decision and your decision alone . . . I urge you all to be West Virginians. Not Democrats, not Republicans, simply West Virginians, and base your decisions on what is best for the state of West Virginia and what is fair not only to Justice Walker, but what is fair to the House members who have brought these charges.
The witness called today was Mike McKown, former State Budget Director. He testified that the state was required to adjust its budget mid-year in FY 2017, which required almost all state agencies to take significant cuts. Because the budget for the Supreme Court of Appeals is not controlled by the Legislature, no budget cuts were imposed on the Court. Instead House managers emphasized these cuts as context within which to view Walker’s “excessive” spending to renovate her office.
In the closing argument from the House impeachment managers, Senators were asked to consider that Walker continued participating in state-paid lunches until a FOIA request was made about them, and to weigh heavily what she did “when no one was looking.” As for the renovations to her office, House managers argued that while everyone else in the state government was required to tighten their belts, Walker was spending money for a cosmetic renovation of her office rest room that benefitted nobody but her. Using a golf analogy, the House managers argued that Walker was asking for mulligans (extra chances) when she apologized and expressed regret.
Walker’s counsel argued that since she didn’t take office until January 1, 2017 she was not responsible for policies that were adopted before, especially since she had no power as an individual Justice to change them. He pointed out that she had been the sole Justice to vote against substantial salary increases for the Court’s staff during the 2017 budget crisis. While the House managers had suggested that ethical standards applying to lawyers should also apply to Justices in impeachment proceedings, Walker’s attorney argued well that lawyer disciplinary rules and “best practices” are not incorporated into the state’s Constitution as standards by which to remove a Constitutional officer.
At about 12:50 p.m., the court of impeachment was called back into session and Senators cast their ballots through the electronic voting system. An aye was a vote in favor of sustaining the articles of impeachment; a nay was a vote rejecting them. The vote tally showed one aye and thirty-two nays. The lone aye vote was cast by Senator Stephen Baldwin (D-Greenbrier). Chief Justice Farrell declared the articles of impeachment rejected as to Justice Walker and dismissed the proceedings.
However, Senators gathered in regular session shortly after the impeachment vote and agreed to censure Justice Walker. The censure is, in effect, an admonishment that will not affect her tenure in office.