Band-Aids Don’t Fix Bullet Holes: The West Virginia Supreme Court Needs To Address Its Corruption Problem

The headlines wrote themselves: a $32,000 couch (complete with $1,000 worth of throw pillows). A $10,000 payment to a private attorney to “ghostwrite” a court opinion. Illegal overpayments to former colleagues in the hundreds of thousands of dollars. Public outcry erupted in late 2017 when news broke that the justices on the West Virginia Supreme Court of Appeals (the highest court in the state) had spent lavishly on office renovations. Further investigations revealed that some justices had used state-owned vehicles and government credit cards for personal use. Three of the justices were accused of scheming to overpay retired judges who were contracted by the judiciary to fill in on the trial courts in times of vacancy or high caseloads. But the most brazen allegations were leveled against Chief Justice Allen Loughry, who was convicted of wire fraud and obstructing an investigation into his enriching himself at taxpayer expense—despite the modest fame and fortune he (ironically) earned as the author of a book on political corruption in West Virginia.

The pervasiveness and diversity of the misdeeds on the West Virginia Supreme Court of Appeals over the past few years suggest that the corruption was in many ways a cultural problem. But it’s worth noting that the most serious allegations of corruption were likely not actually criminal. A quirk in West Virginia’s law gave the Supreme Court near-total control over its own budget, paving the way for the unchecked spending. Likewise, the intentional overpayments to retired judges reeked of cronyism but may or may not have been illegal; while a statute capped payments to part-time judges, the judiciary still arguably retained ultimate control how and how much to spend.

In response to the revelations of corruption, West Virginia’s government settled on two aggressive solutions. First, in August 2018 the West Virginia House of Delegates approved 11 articles of impeachment against the four justices still on the court and scheduled trials for each of them before the State Senate to determine if they should be removed from office. (The normally five-member court was already down a justice, who resigned in July a few weeks before pleading guilty to federal fraud charges.) The impeachment proceedings were met with outrage by some commentators (see here, here, and here), who saw them as a partisan power grab. Questionable motives aside, the results of the impeachment charges were still a mixed bag: one justice resigned from the Supreme Court before her trial. Another was acquitted of all charges but formally censured by the State Senate in a lopsided vote. The other two justices escaped any impeachment trial after an interim slate of state Supreme Court justices threw out the impeachment charges against their fellow justices on technical grounds. Chief Justice Loughry resigned following conviction in federal court (that makes three resignations overall, if you’re keeping count), and the legislature backed down from further impeachments. Second, after the impeachments, West Virginia’s voters overwhelmingly approved a constitutional amendment that wrested control over the judiciary’s budget away from the Supreme Court, giving the legislature the power to cap the judiciary’s annual spending, so long as the total amount is no less than 85% of the previous year’s budget.

But even if these measures work precisely as planned, the problem in West Virginia is far from solved. The damage to the judiciary’s legitimacy has been severe. A common refrain states that judges “like Caesar’s wife, must not only be virtuous but above suspicion.” And Chief Justice Loughry—of all people—echoed this same bold claim in his book: “Of all the criminal politicians in West Virginia, the group that shatters the confidence of the people the most is a corrupt judiciary…. It is essential that people have the absolute confidence in the integrity and impartiality of our system of justice.”

Unfortunately, the remedies implemented thus far serve only the short-sighted goals of stopping yesterday’s corruption. What is missing in the aftermath of the West Virginia scandals is a concerted effort on rebuilding trust in the judiciary. As previous scandals in the public and private sectors suggest, regaining trust in the judiciary requires public remedial actions by the judiciary itself. Replacing certain justices and adding high level legislative oversight may have been appropriate, even essential, measures, but they don’t necessarily help the court restore its integrity and repair its tarnished reputation. Moreover, focusing exclusively on these externally-imposed remedies may send a signal that the judiciary can’t be trusted to handle its own affairs. This makes it all the more imperative that the judiciary take the initiative in addressing its cultural problem and rebuilding public trust in the courts. A willingness to accept responsibility for past mistakes and engage in transparent self-evaluation will be critical as the West Virginia Supreme Court begins its new term this month. In particular, there are two steps the Court could take that would be helpful:

  • First, judges and commentators should resist the urge to unduly scapegoat the blameworthy justices. This impulse was on greatest display in the campaign rhetoric of recent candidates for seats on the Supreme Court, which fixated on the would-be justices promoting their personal brands of integrity. And this rhetoric has continued past Election Day, with even new lower court judges emphasizing the shortcomings of the accused justices. While understandable, these actions can be counterproductive to the extent they suggest that the corruption problems started and ended with the now-ousted justices. Pennsylvania provides an instructive, cautionary example: the state has been plagued by a series of distinct judicial corruption scandals over the past decade, yet after each new revelation of misconduct judicial leaders have reflexively blamed the individuals who were caught and characterized them as rogue actors. These self-serving claims have distracted from investigations into the institutional and cultural causes of judicial corruption. In West Virginia, the judiciary may understandably want to turn the page from the corruption scandal, but excessively blaming the complicit justices (some of whom are still on the Supreme Court) may do more harm than good.
  • Second, and perhaps more importantly, the Supreme Court should investigate and reconsider the institutional practices that led to the misconduct. Some of the indiscretions apparently stemmed from institutional design flaws and a lack of transparency, as well as a failure to regulate or prohibit certain forms of problematic conduct. Helpfully, the Supreme Court endorsed the constitutional amendment to add legislative oversight over the judiciary’s budget, finally coming around after initially opposing any additional oversight. But other trouble spots remain. Take, for example, the Supreme Court’s practice of hiring retired judges to fill-in as trial court judges. Chief Justices ran afoul of the law by reclassifying retired judges as private contractors to skirt the cap on payments to the judges. But the patronage scheme is troubling by design: the Chief Justice has unilateral authority to select and appoint retired state judges (including former colleagues) to fill temporary vacancies or assist with overloaded dockets—all with no transparency on the necessity of such appointments or the selection process. And these lucrative assignments are not short-term stopgap jobs but judicial posts on par with other trial court seats. The Court would do well to candidly and transparently reassess the senior judge appointment system, as well as other dubious practices. Doing so would send a message to West Virginia citizens that the Court takes reform seriously—not merely when forced to the table by a legislature acting as its overseer.

5 thoughts on “Band-Aids Don’t Fix Bullet Holes: The West Virginia Supreme Court Needs To Address Its Corruption Problem

  1. Thank you for this fascinating and thought-provoking post, Kees. While I agree with your proposed step according to which “the Supreme Court should investigate and reconsider the institutional practices that led to the misconduct”, I am not sure that this step ought to be the central focus of a future comprehensive institutional reform. As you mentioned, the Supreme Court of Appeals has (or had) suffered from a long-time cultural problem, and it is questionable whether it is capable – even with new justices on the bench – of reviewing and recognizing its own long-standing flaws. It is also interesting to see how the public will perceive and evaluate the Supreme Court’s investigation in light of the recent scandals. Therefore, in my view, external deep review should be at the forefront of any future comprehensive institutional reform, though this certainly wouldn’t preclude self-examination by the Supreme Court, as proposed here.

    • Thanks, Guy. I don’t disagree that external review is important, or even that it should’ve have been a main thrust of reform. I more mean to emphasize that it should not be the only reform. Self-review and self-policing will be necessary as well going forward, especially when the external measures slow efforts by the court to repair its reputation.

  2. Kees, many thanks for this insightful article (though I hate that this whole saga has occurred in my home state).

    Two quick things I’d like to comment on.

    First, as you may have seen, the West Virginia House of Delegates recently asked the United States Supreme Court to review the interim court’s decision to throw out the impeachment charges (see an article from my hometown newspaper here:

    Second, I agree with you that restoring public confidence in–and the legitimacy of–the West Virginia Supreme Court is of the utmost priority. As a registered voter in West Virginia, however, I can’t help but feel like us voters, at the ballot box, are contributing to the delegitimization of the W.V. Supreme Court moving forward. For example, of the Justices voted onto the W.V. Supreme Court, Evan Jenkins, is a career politician who hadn’t practiced law in the better part of two decades; indeed, his law license had been inactive for four years as of August! I guess my point is that, in addition to being ethically and morally beyond reproach, voters in West Virginia similarly need to require members of the Supreme Court to have the legal skills and competence to function effectively in the job if the Court is going to regain its legitimacy.

  3. Thanks Ross, especially for sharing your unique perspective as a West Virginia resident and voter! I agree that the Supreme Court could’ve started off its road to redemption on a stronger footing with the new justices on the court…

    To your first point, yes the (longshot) request for U.S. Supreme Court review is an interesting development. But I actually don’t see it necessarily as an antagonistic move to restore the impeachments. Rather, the Legislature does have some fair arguments that the interim WV Supreme Court’s decision was illegitimate and/or is a troubling encroachment from a separation of powers standpoint. This episode is yet another dramatic coda to this corruption saga.

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