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.

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