As interesting, complex, and important as are the constitutional issues that reach the U.S. Supreme Court, there are far more at the state level. But never in American history has there been a constitutional conundrum quite like what’s going on in West Virginia right now.
Last month, the West Virginia legislature voted to impeach the entire state Supreme Court on the grounds that they misappropriated state funds in various ways. That was startling enough. But then the West Virginia Supreme Court itself decided to fight back. That’s not a new thing in West Virginia—in 1997, the State Supreme Court ruled in a dispute over parking spaces for court personnel that “courts have inherent authority to require resources such as sufficient funds for operating expenses,” and therefore that county judges could override state budgetary restrictions. But this time, the Court went much further. It issued a unanimous decision (written by substitute justices, since the justices themselves are being impeached and had to recuse themselves), holding that the state legislature has no authority to impeach under these circumstances.
First question: does the state Supreme Court have jurisdiction over impeachments? Impeachment is different from a criminal trial, because it’s a political, rather than a legal, proceeding, and it doesn’t impose criminal penalties; it just removes a person from office. That’s normally considered an exclusively legislative matter, in which the courts have no say. But the West Virginia Supreme Court decided otherwise. Here’s their reasoning: the West Virginia Constitution says
Any officer of the state may be impeached for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor. The House of Delegates shall have the sole power of impeachment. The Senate shall have the sole power to try impeachments and no person shall be convicted without the concurrence of two thirds of the members elected thereto…. [T]he senators shall be on oath or affirmation, to do justice according to law and evidence. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust or profit, under the state; but the party convicted shall be liable to indictment, trial judgment, and punishment according to law…
The italicized phrases are important, the Court says, because they use the words “shall”: this “imposes a mandatory duty on the Court of Impeachment to follow the law,” and that creates “an implicit right of an impeached official to have access to the courts to seek redress, if he or she believes actions or inactions by the Court of Impeachment violate his or her rights under the law.”
That doesn’t seem correct. First, while the Senators are required to take an oath to do “justice according to law,” that oath is taken as part of their work as the “court of impeachment,” not as part of the judicial branch. Courts have virtually never said that they have authority to enforce the oath that a political official takes. And because the West Virginia Court here admits that it has no power to hear an appeal from an impeachment decision, it has basically conceded that the oath requirement itself doesn’t create a judicially enforceable right. The second italicized phrase does say “shall,” but that, too, doesn’t necessarily give the judicial branch any power to intervene. And that’s particularly because the second italicized phrase refers to actions that take place after a successful impeachment. That phrase says “the party convicted shall be liable to indictment, trial judgment, and punishment according to law.” This refers to a post-impeachment criminal proceeding, and those have to go to ordinary courts—which, yes, are answerable to the state Supreme Court. Thus the according to law language in the second phrase applies only after impeachment. And the phrase in its first appearance creates no substantive rights on the part of the impeached party.
Suppose a judge is accused of robbery or murder. He can be impeached, and then after he’s impeached, he’s “liable to indictment, trial judgment, and punishment according to law.” That’s what the “according to law” phrase means—it plainly does not contemplate a court interfering in the impeachment process itself. And given that the state constitution goes on to provide for judicial power after impeachment, the lack of such a reference to judicial power during impeachment is a strong exclusio alterius argument for denying the courts authority to intervene in a pending impeachment proceeding.
And, not withstanding the old saying that every right has a remedy, the mere fact that a proceeding must comply with the law doesn’t always mean that the judiciary has the authority to intervene, desirable as that might seem. Everything government does, ever, is required to follow the law. But sometimes, when the government violates the law, there’s just no judicial remedy available. Them’s the breaks—and that’s not always a bad thing, since conflicts over these sorts of things can be resolved by the voters in a lot of cases. You don’t have to be an advocate of “judicial restraint” to recognize that there is such a thing as a political question, and that the political question doctrine and similar doctrines, are a function of separation of powers, not a violation of it. Yes, impeachments must comply with the law. But the law of impeachment is almost entirely a question to be resolved by legislators, not by judicial courts. The legislature, after all, has sole power to try impeachments.
The West Virginia Supreme Court doesn’t dwell on these questions, but goes on to cite another provision of the state Constitution guaranteeing “every person” who has suffered “an injury…in his person, property or reputation,” to have the right to “remedy by due course of law.” This, the Court says, allows a person who’s being impeached to “seek redress…[in] this Court.” But that’s not a reasonable reading of the right-to-remedy clause. First, that clause applies to a person who’s suffered injury to person, property, or reputation. Impeachment, even if wrongful, is not an injury to person or property, and it’s not an injury to reputation in the sense contemplated by the clause, because that refers to libel and slander—not to the initiation of legal proceedings. The initiation of legal proceedings with probable cause is not a form of defamation, regardless of the jurisdictional questions; certainly the initiation of impeachment proceedings cannot be.
The concerns animating New York Times v. Sullivan—that citizens should not be threatened by officeholders who retaliate against them for expressing their views that the officeholder is unfit—seem even more relevant here. Officeholders are servants of the people, who hold their offices at the pleasure of the people. For them to insist on having a “property” right to their offices or to complain about having their “reputation[s] destroyed in the legal community and public at-large by being impeached”—let alone a “property interest in obtaining [their] pension[s] when [they] choose to retire”!—goes beyond unseemly whining, and seems to me a dangerously unrepublican attitude toward public service. Public servants are in no sense entitled to their jobs, and they should be subject to impeachment for practically anything at any time. The ultimate judgment will be rendered by the people, which is as it should be.
Notably missing throughout the decision is any discussion of the phrases, “The House of Delegates shall have the sole power of impeachment” and “The Senate shall have the sole power to try impeachments.” Surely these phrases, particularly the word sole, have some significance here, no? Yet the Court never addresses this. That’s remarkable for two reasons. First, the natural reading of these provisions would be that the legislature has exclusive authority, and the judiciary none, over impeachment. Second, because later on, the Court puts great emphasis on the fact that the judiciary has “sole” power over judicial matters. (See page 39, for example.) To disregard the legislature’s “sole” power over impeachment while great weight on the Court’s “sole” power over judicial matters doesn’t seem like an evenhanded way of interpreting the separation of powers clause, which is what the Court purports to be doing.
The Court goes on to discuss some precedents, but since this is a basically unprecedented situation, those are of little help here. Still, its interpretations of these precedents is something of a stretch. It rejects reliance on Nixon v. United States, for example, a 1993 case involving the impeachment of a judge named Nixon; there, the U.S. Supreme Court ruled that it had no authority to interfere in a Congressional impeachment proceeding. The West Virginia justices say that doesn’t apply, however, because the U.S. Constitution doesn’t contain the “according to law” clause on which it bases its decision. Fair enough, but the justices then go on to quote approvingly from a New Hampshire case called In re. Judicial Conduct Commission, which said courts do have jurisdiction—even though the New Hampshire Constitution also doesn’t include the “according to law” language. In fact, that case involved the validity of a subpoena that had been issued to some people who were not being impeached, and the court said that it had authority to protect “persons whose rights are violated…in the course of an impeachment investigation,” not the person who’s being impeached. That seems to me a very different matter. So that precedent does not seem persuasive.
Even stranger is the emphasis the court places on the doctrine of separation of powers. It argues that the impeachment is unlawful because it’s up to the judiciary to decide how to spend money, and to punish those who break the rules on expenditures. The Court explains at length—and pretty persuasively—that the constitution vests the judiciary with authority to regulate itself and that the legislature does not enforce regulations established by the courts. For example, one basis the legislature used for impeachment is that the justices’ conduct violates the rules of judicial ethics; since “this Court has exclusive constitutional jurisdiction over conduct alleged to be in violation of the Code of Judicial Conduct,” the impeachment is unlawful.
But the problem here is that the legislature’s impeachment power is—and I think must be—extremely broad. It has power to impeach “any officer of the state” for “maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.” And the article of impeachment in question says that the justices “waste[d] state funds with little or no concern for the costs to be borne by the taxpayers,” then lists many examples, and concludes that these examples violate the Code of Judicial Conduct. But if you delete the reference to the Code of Judicial Conduct, waste of taxpayer funds is certainly “maladministration” or “corruption” or “neglect of duty” and maybe other things—so the court’s wrong to say that the justices are being impeached for violating the Code of Judicial Conduct. They’re being impeached for maladministration, and the reference to the Code of Conduct is only illustrative of that. Since the legislature doesn’t purport to be enforcing the Code of Conduct, and since the Code of Conduct doesn’t purport to override the Constitution’s reference to “maladministration, corruption,” etc., then it’s just not persuasive to say that the legislature is intruding on the judiciary’s power to regulate itself. To use an analogy, this seems to be a case of concurrent jurisdiction. And in fact the Court admits that the legislature can consider violations of the Code as “evidence for removal based upon other valid charges of wrongful conduct.” And that’s just what’s happening here, even if perhaps inelegantly phrased.
To put the point more simply: suppose the justices were being impeached for engaging in some corrupt scheme to, I dunno, hide toxic waste on state lands in exchange for bribes. Hiding toxic waste is a matter for the EPA to enforce, normally. But surely the legislature could impeach the justices for corruption, notwithstanding, and use the toxic waste thing as an instance of, or an illustration of, the corruption that the justices are being impeached for. Likewise here: maladministration is both a violation of the Code of Conduct and also an impeachable offense. So there is nothing wrong with the impeachment.
But even if that were wrong—even if the violation of the Code were a standalone allegation and even if the Court had jurisdiction in this case—the proper remedy would have been simply to sever the reference to the Code of Conduct from the articles of impeachment and then to allow the proceeding to go forward—not to issue an order barring the proceedings. Separation of Powers requires the Court to minimize its intrusion into the legislative sphere as much as possible, and such a severance would have accomplished that. But no discussion of this appears in the opinion. And although the court quotes language from a 2013 West Virginia case that “the separation of powers doctrine implies that each branch of government has inherent power to ‘keep its own house in order,’” it goes on to adjudicate the question of whether the House properly followed its own procedural rules in promulgating the articles of impeachment. (“We are gravely concerned with the procedural flaws that occurred in the House of Delegates.”) The Court engages in no discussion of the Enrolled Bill Rule—although, to be fair, West Virginia courts have taken the view that that Rule is evidentiary only, and not jurisdictional, so it wouldn’t have been dispositive, if the Court had addressed it. But in an opinion so riddled with references to Separation of Powers, it is bizarre indeed to have such an important part of that principle entirely ignored.
There are other problems with the decision, but this post is already too long. It’s certainly a fascinating question for the con law nerds out there—and it doesn’t look like the drama will end any time soon. The legislature—properly, in my opinion—decided to ignore the Court’s order, only to have the impeached justices refuse to attend their hearing…which, again, was proper, in my opinion. Each side of this dispute has a duty to stand up for the separation of powers as they understand it. In theory, that’s how the system’s supposed to work…as long as it stays peaceful.