The Curious Case of the $32,000 Couch

2018-09-02 · Guest: Laurie Lin (Charleston Gazette-Mail columnist) · 52:09

Filed under: Taxes, spending and debt
Topics: Government Spending

Impeachment of the West Virginia Supreme Court

Bob Zadek and guest Laurie Lin discuss the bizarre scandal that led to the impeachment of nearly the entire West Virginia Supreme Court of Appeals. The conversation explores how personal animosity and extravagant office renovations—including a $32,000 couch—triggered a constitutional crisis in the state.

Topics: West Virginia Supreme Court, Allen Loughry, judicial impeachment, government spending, Steve Canterbury, judicial ethics Speakers: Bob Zadek (Host), Laurie Lin (Guest)

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The Intersection of Interior Design and the Judiciary [00:00]Bob Zadek: You’re listening to the Bob Zadek Show, a full hour of libertarian discussion with the smartest guest on radio. Live, spontaneous, and thoughtful. It’s the show of ideas, not attitude. And your calls are welcome at 424-BOB-SHOW. Now, your host, Bob Zadek.

Hello, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. Thanks so much for listening to our show. We are always the show of ideas, never the show of attitude.

This morning, we dare to go where no other talk radio show has ever gone. We examine the often-ignored intersection between the judicial system and interior decorating. Can interior decoration bring down the entire judicial system of a state? To answer that intriguing question for this morning, I’m happy to welcome to the show, Laurie Lin.

Laurie Lin is a columnist and editorial writer for the Daily Mail opinion page at West Virginia’s Charleston Gazette-Mail. Her opinion writing has been honored by the West Virginia Press Association. She’s a former corporate tax lawyer, and she’s co-founder and panelist for The Front Porch podcast, which is a PBS project in West Virginia. So this morning we examine the intersection between interior design and the judicial system, specifically the judicial system of West Virginia. And man, does Laurie have a story for you this morning? Laurie, welcome to the show this morning.

Laurie Lin: Good morning, Bob. Thanks for having me on.

Bob Zadek: Well, Laurie, West Virginia is of course—has a judicial system. It has a court system, it has a state Supreme Court, and things were pretty quiet in the state Supreme Courts until around, what, 2013, 2014, and then things started to change. They changed slowly, but accelerated rapidly, so that right now one of the big discussions in West Virginia is who’s gonna get the screen rights and who’s gonna get to play the judges.

So tell us this story of what happened from a basically unnoticed—except by the lawyers who practiced before them—state Supreme Court of West Virginia. What happened to get the attention of the national media, of pundits all over the place, of the West Virginia legislature, West Virginia citizens? What happened and how did all of this start? And by the way, to keep our audience—keep their eye on the ball—I will tell them in advance that Laurie’s story ends up, forgive the spoiler, with the almost entire West Virginia Supreme Court getting impeached. Yes, getting impeached. How could that happen? Laurie, what happened starting in around 2013 or so?

Laurie Lin: Sure. Well, I will try to give the story without drilling down too much into—as you can imagine, there’s enough detail here to fill five hours. But the way when I like to start the story is, in 2012. So West Virginia Supreme Court judges, as all judges in West Virginia are, are elected by popular vote, and there are five seats on the court. Two of them were up for election that year in 2012. And one of them was won by a justice who was already on the court. She was running for her second term, Robin Davis, who’s a Democrat. Her husband is one of the most—maybe the most wealthy and successful trial attorney, plaintiff attorney in the state. And so she won re-election.

The other seat was a little bit of an upset. Most people thought that a Democrat was going to win that seat, but it was actually won by a young Republican by the name of Allen Loughry. When I say young, he was, I think, 42. He wasn’t too young to be a judge, but he was on the young side. And at the time that he won election, Loughry was actually a law clerk on the court. He worked—already worked at the court for a different justice.

Bob Zadek: Tell us about the political orientation of West Virginia. Is it a Democratic state, a Republican state, a purple state? Tell us a little bit about the environment of West Virginia in which all of this is taking place.

Laurie Lin: Sure. So at the time that I start my story in 2012, it was still firmly a blue state, a Democratic state, and had been for 80 to 90 years. The legislature had been controlled by Democrats, both houses. West Virginia would occasionally elect Republican governors, but overall mostly Democrat governors. Of course, by now, today in 2018, that has completely shifted as far as the governorship and both houses of the legislature—all Republican—and the court has somewhat shifted.

West Virginia actually stopped partisan judicial elections in 2016. So technically, from then going forward, you don’t elect judges based on a party orientation. But we know the party orientation of the justices. But that was where it started. And again, the new justice, the—and the justice who turned out to be the most controversial—Allen Loughry, was a Republican.

Bob Zadek: Okay, so Loughry goes—makes this huge promotion from clerking for a Supreme Court judge to being a Supreme Court judge. That’s quite the career trajectory, but he does it.

Laurie Lin: Exactly. And so I trace a lot of the conflict on the court—which is, I think, somewhat behind how this all transpired and how it came to light—trace it back to that time when he went from being fairly low on the totem pole at the court to being one of the five people in charge of not only the court but actually the entire judicial system of West Virginia. Because, of course, the court is kind of the bosses of the entire thing. All the state judges answer to them in the administrative sense.

So we know now—it wasn’t obvious at the time, of course, but—we know now that there was a bunch of interpersonal conflict between Justice Loughry and the guy who is the court administrator. His name is Steve Canterbury, and so his job was to run the administrative side of both the court and the West Virginia judicial branch. It’s clear that he and Loughry did not like each other. They’d had some run-ins when Loughry was a clerk. And so if you kind of put yourself in the shoes of Loughry and of Canterbury, overnight the relationship reversed. So Loughry went from the underling to Canterbury’s boss, and all of a sudden Canterbury—is this guy that he had been in charge of and had not liked very much is suddenly his boss.

It’s pretty clear that Robin Davis, the other justice, the Democrat, was involved in that as well. She and Loughry appear to be not huge fans of each other, whether that was just a personality thing or if there was—also an ideological component to that, sort of unclear. But we know now that they traded sort of snippy memos back and forth. Justice Davis questioned Justice Loughry’s use of court vehicles for travel and wrote a memo about it, and Loughry responded by writing a memo about Justice Davis’s hosting parties at her house that were paid for by the court. But anyway, there seemed to be a lot of tension simmering at the court. Of course, again, we don’t—we didn’t see that at the time, but we know it now.## The Firing of Steve Canterbury [04:30]Bob Zadek: So what ultimately happened to—Laurie, forgive me, but the Supreme Court has a pretty important job. Am I being overly harsh by saying this sounds a tad petty?

Laurie Lin: I think that’s, I think they say that about academia, right? The feelings are so high because the stakes are so low. And so, yeah, I think maybe it’s, you look at it and you say, “Didn’t you guys have some things to actually do, some work to get done?” There seems to be an awful lot of worrying about how your offices are looking and who is making the decisions. Yeah, it does look petty, looking from the outside.

And ultimately what seems to have sent this out into the public realm and turned it into a huge controversy is pettiness in the sense of Allen Loughry became the Chief Justice in 2016, and a new justice was elected, Justice Beth Walker, who is a Republican. Loughry apparently seems to have convinced Justice Walker and another one of the Democrat justices to fire Steve Canterbury, the court administrator. And so in early 2017, Steve Canterbury gets called into a meeting and is told, “You’re fired, clean out your desk.”

And there’s some allegation that Canterbury said to Loughry, “I’m gonna destroy you, you’re gonna pay for this,” although he denies that. But what we do know, what he definitely did, is he went to the press. And so the reason that we know all this—that we know about the spending and the interior design—is that Steve Canterbury, in anger at being fired, went and talked to the press. And so that is how we kind of got where we are today with all of this coming out. Steve Canterbury is the source, and he completely acknowledges that. It’s no secret.

Bob Zadek: And what did he tell the press? What got the press’s attention?

Laurie Lin: So, what got people’s attention is, in a nutshell, lavish spending on office renovations.## The $32,000 Blue Suede Couch [12:38]Laurie Lin: That’s really what’s captured the attention of the court. So I think what you would say is that a culture seems to have developed at the court where justices had very free reign to thoroughly renovate their offices and personalize things exactly to their individual tastes, down to things like flooring, built-in cabinetry, lighting, everything. The whole thing. And so what came out was the cost of these things. Justice Davis’s was the most expensive, and it was over half a million dollars. And then it included things like $58,000 in glass countertops, $24,000 of marble baseboards. And then for Justice Loughry, his was the second most expensive, a little bit more than $300,000. His office included the infamous $32,000 blue suede couch that you may have heard of. That’s kind of the emblem of this controversy. You can Google it, and it looks like something you just buy at Pottery Barn or Crate & Barrel, but somehow it costs $32,000. So this, as you can imagine, took hold of the public. People—everybody buys couches, people understand how much a couch is supposed to cost. And when you hear that $32,000 of taxpayer money has gone to buy a couch, it really captures people’s attention and it certainly did in West Virginia.## Judicial Budgetary Independence in West Virginia [14:25]Bob Zadek: And we should mention that there was a somewhat unusual rule governing how much the Supreme Court can spend because normally government departments can only spend what funds have been appropriated. But tell us about the somewhat unusual provision in West Virginia that invited this somewhat lavish spending.

Laurie Lin: Yeah, that’s actually really important. And so some people say that West Virginia is unique in this. I’m not sure if it is totally unique, but in West Virginia the judiciary has complete control over its budget and not just control over how to spend it, but control over how much it is. So the judiciary, the state supreme court, goes to the legislature every year and says, “We will be spending this much money,” and they’re not asking, they’re telling. And the reason for that, the reason that is cited by the judges in defending this system is, first it’s in the constitution, but their defense of it is, “Well, we need to be completely independent because if the legislature controls our budget at all, they could reduce it as a retaliation if they don’t like our decisions.” So that’s the theory behind it. But it’s also why they, in part why they were able to do this because they do have complete control and oversight of their budget. Now that will almost certainly change after this November. They on the ballot, there will be a constitutional amendment, as you can imagine, sparked by this controversy that will give the legislature control, partial control over the budget, as is the case in most states and is the case in at the federal level. The U.S. Supreme Court actually goes to Congress each year and requests a budget. Congress, of course, usually approves it. So West Virginia will actually come into line with most of the states and the federal government in that respect.

Bob Zadek: So what the justices did in their lavish spending—and we’ll come back to this later on—but what they did was a tad, to say the least, insensitive and politically unwise, but not per se illegal.

Laurie Lin: Exactly. It is not illegal, not illegal under federal law or under state law. And so that gets us a little bit into a question of impeachment, of course. We always have the back and forth when we talk about impeachment. What is an impeachable offense? In West Virginia, the West Virginia Constitution specifies impeachment for, quote, “maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor.” So that’s a little bit broader than our U.S. Constitution.

Bob Zadek: That’s nice and specific, isn’t it? Oh my God.

Laurie Lin: Yeah. So you have to think about, is this maladministration? Is it corruption? Which category does it fit in? Does it actually fit in any of those categories?## The Impeachment and Indictment of Allen Loughry [17:10]Bob Zadek: So now we had to get back to the story. We have the judges have a feeding frenzy, a decorating frenzy. They spend up the yin-yang. Steve Canterbury, who is fired and doesn’t take it lightly, goes to the press and starts telling the press about the lavish spending, which remember is not illegal, but it’s not a great idea. And the press and the public capture it. And now so what happens to the story from here? Now the press is all up in arms. They’re pounding on their keyboards and what’s going on politically and in the public sphere when all of this comes out?

Laurie Lin: So it simmers on for several months. Loughry defended himself initially by saying—so what came out first was Loughry’s spending because that was what Steve Canterbury wanted to come out because he didn’t like Justice Loughry. And so Loughry defended himself by saying, “I didn’t know how much any of this cost, none of this is my idea. I just let Mr. Canterbury handle all of it. I didn’t know what the totals were. This is not my fault. I’m astonished and enraged that so much money was spent myself because I didn’t know about it.” The problem with that was, if you look at the actual things that were purchased, one of them, for example, includes a floor medallion set into the floor of Justice Loughry’s office with each West Virginia county made out of a different exotic wood and Loughry’s home county made out of blue granite. And it’s hard to imagine that Loughry didn’t order that, wasn’t interested in that, that it was somehow foisted on him. It just didn’t really seem credible. And ultimately, Canterbury produced some kind of documentary evidence. There was a drawing that Justice Loughry had made of how he wanted his office to look; there were emails. It just wasn’t—maybe he didn’t know the exact figure of how much things cost, but it’s pretty clear that what was done was done at his direction. And so this kind of dribbled out over several months and the other justices’ spending came to light. Eventually what triggered the impeachment proceedings was that the feds got involved. Justice Loughry was indicted in June by the U.S. Attorney for the Southern District of West Virginia. Now he wasn’t indicted for the actual spending because as we just said, that’s not illegal, right? So he was indicted for wire fraud, which is basically using a state gas card to make purchases for personal trips. Also for lying, allegedly, about these things when the feds asked him about some of them, he is alleged to have lied. And then there’s another charge relating to witness tampering, which we’re not totally sure the details of that, but he’s alleged to have somehow tampered with the testimony or potential testimony of an employee at the court. And so he was indicted in June. And once he was indicted, that was—of course the legislature had talked about impeaching him, and there’d been a lot of back and forth, but that was kind of the spark. So let’s start impeachment proceedings. And as we can talk about, once they got started, the ball got rolling. Ultimately, all of them were impeached.

Bob Zadek: Now I’d like to, Laurie, I’d like to—there’s a bizarre sideline in this. We’re talking about Allen Loughry, who was a clerk, get elected to the state Supreme Court as the chief judge, fires the administrator, and now he’s been in the thick of it on all kinds of charges. But Loughry had another career of sorts. He was an author. And before we go to break, tell us in a few seconds about Loughry’s venture into writing. What did he write and when did he write it, to borrow a phrase?

Laurie Lin: So when he was a clerk, he published a book, kind of self-published it, I believe, that was—that came out of his judicial or his doctoral thesis. He has a doctorate in law. And the title of the book is Don’t Buy Another Vote, I Won’t Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia. So this book purports to be, and really is, frankly, the definitive history of political corruption in West Virginia. And I have a copy myself. They’re selling for about $400 on Amazon. So yes, he does have quite the background in corruption, and he’s now written his own chapter.

Bob Zadek: And I should mention as a sidelight, former senator, the late John McCain, had written—was a contributor of that book, as was former Senator Robert Byrd, the one of the lions of the Senate when he was alive. So here we have Loughry now indicted on all kinds of really nasty charges, having spent an arm and a leg on his furniture, just got elected to the state supreme court, and he is, among other things, an author.

Bob Zadek: And, Laurie, this book will be worth millions, since it is now out of print. It’s a very interesting sideline. So, we have now—we have Loughry, who is isolated and who has zeroed the focus of Canterbury and gotten the attention of the press, the public, and the legislature, but he’s not going to go down alone. And keep this in mind as we go to our very short one-minute break: Loughry, in the furniture part of it, did nothing wrong, nor did anybody else—any of the other justices.

This is Bob Zadek. I’m talking with Laurie Lin this morning. Laurie has written a wonderful story telling us about the impeachment of the entire West Virginia Supreme Court. Well, not quite. There were resignations. More about that when we come back from our one-minute break. Please stay tuned. There is so much more to come.## The Political History of Jim Justice [25:42]Bob Zadek: Welcome back to The Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. We’re speaking this morning with Laurie Lin. Laurie is a columnist and editorial writer for the Daily Mail opinion page at West Virginia’s Charleston Gazette-Mail. Laurie was a practicing attorney, and she has written a wonderful story about the impeachment or resignation of the entire West Virginia Supreme Court.

Laurie, before we pick up with our story, I can’t help myself. To give us more of an insight into West Virginia politics, and if only because of the name, you must tell us very briefly about the political history of the Governor of West Virginia, who plays somewhat of an important role in all of this. So, I don’t want to get too much into the weeds, but tell us a bit about the political history of your governor with the wonderful name of Jim Justice.

Laurie Lin: Sure, that is certainly a rich topic. So, Governor Justice, of course, would be appointing any justices who get impeached, at least for a period of time. He would get to choose their replacements until it would be time to elect them. And he is now a Republican. He was actually not elected as a Republican; he was elected in 2016 as a Democrat. He is the richest man in the state. He made his money in coal and agriculture. He now owns The Greenbrier hotel, which many people are familiar with as a big West Virginia symbol.

And so he was elected in 2016 as a Democrat. Almost immediately, that summer of 2017, he switched his party registration and became a Republican. Now, Republicans are a little bit wary of him. I think it’s fair to say he’s not terribly popular right now in either party. Democrats are furious with him and are very angry at the thought that he might be selecting, ultimately maybe all of the Supreme Court for a time. And so they’ve thrown around words like “coup,” over—you’re trying to overthrow the court. So definitely his controversial position is a minor part of this story.

Bob Zadek: West Virginia politics is so unusual. I just want to move to the state just so I can experience voting there for one or two elections just to be part of the fun. What an amazing state. But okay, we go back to my own observation. We go back to our story.

So now we have Loughry, who’s been indicted—who started, who got elected, who was a clerk, got elected as a justice of the Supreme Court, fires who used to be his boss, boss goes to the newspapers, blows the whistle on the $32,000 sofa. Loughry—the feds perk up. He was using cars for personal purposes—kind of minor offenses, but they were offenses nevertheless. And he gets in deep trouble, gets indicted by the feds. His career is on a downward spiral, and the legislature is looking towards impeachment of him. But what about—how do the other justices now get dragged into all of this?## The Impeachment Proceedings and Resignations [34:10]Laurie Lin: So, impeachment hearings are scheduled in June. The day before impeachment hearings are to start, one of the other justices, Justice Menis Ketchum, a Democrat, resigned. And he later, a few weeks later, pled guilty to, I think, one or two charges of wire fraud for using a state car improperly and a state fuel card improperly. He was using state cars to commute to work and to go to some golf tournaments. What is not 100% known, but what is believed to be happening, is that Justice Ketchum is cooperating with the ongoing federal investigation. So maybe he’s going to be a witness against Loughry.

Bob Zadek: So he now flipped?

Laurie Lin: Well, we don’t know for sure. We know that he is cooperating with the federal investigation. Whether that’s against Loughry, whether it’s against one or more of the remaining three justices, we don’t know. But now Justice Ketchum is out of the picture. He did not get impeached because he resigned right before the impeachment proceedings started.

So the hearings went forward involving only the remaining four justices on the Supreme Court. And then, as you alluded to, all four of them ultimately were impeached, which is—I should point out, just in case we’ve all forgotten our civics—impeachment doesn’t mean they’re removed; it’s only the first step of the process. It’s analogous to our U.S. Constitution: the lower body of the legislature impeaches, and that’s like being indicted, and then there’s a trial in the upper body of the legislature, which would be the West Virginia State Senate, and if they’re found guilty at the trial, then they’re removed from office.

Bob Zadek: Now, what did the other three judges—Loughry has been in the center of this discussion—what did they do wrong? Did they just also spend lavishly, which as we said was not even a crime? What did they do wrong that brought them into this mess?

Laurie Lin: Well, so there was, I think it’s fair to say, there was significant spending on offices by all of them. I already talked about Justice Davis. Her office was actually the most expensive. The other two, their offices were six-figure renovations, but below six figures, so like, between a hundred and two hundred thousand. Justice Davis got impeached over her spending. The other two did not get impeached for their spending.

There was another a little bit of a side issue where four of the justices were alleged to have circumvented state law to pay senior status circuit judges—so trial judges—more than they were entitled to be paid. And that’s kind of a technical one. It’s pretty clear that they actually did it. So they did violate the law. Why they did it, I think, is a little bit more complicated and kind of exonerates them in my view, which is because they needed to pay these judges so they could have judges to actually run the court. And the legislature had passed this law that limited the pay, which may have not been really a well-thought-out law.

So anyway, long story short, three of the four justices did, including Loughry, get impeached on that count. Then there was one more count that’s kind of a catch-all “culture of the court” count, which basically says you guys had no policies to police each other. There were no policies regarding office spending, use of state vehicles. And so that was kind of the final catch-all category.

And one of the justices, Justice Walker, the other Republican, only got impeached on that count because she was so new to the court, she hadn’t been involved in the pay for the senior circuit judges. So in the end, that’s the only count that she faces. And then the third Democrat, Justice Workman, faces that count, and also the senior circuit judge pay.

Then I should mention, the day after this impeachment vote was held, Justice Davis, the one with the $500,000 office, resigned. So we now have two resignations. And she resigned, I think pretty clearly, because she did not want to go to trial and have her office spending put under a microscope, nor I think did the Senate Democrats want to have to try to defend her spending. So she resigned angrily the day after the impeachment.

Now only three justices are still in the court, technically, and all three justices have been impeached and are waiting for their Senate trials, which in theory would happen this fall in September or October.

Bob Zadek: And is it going to be televised nationally?

Laurie Lin: It will be—you will be able to stream it from the West Virginia Senate website.

Laurie Lin: …if you’re in West Virginia, you can certainly watch it on West Virginia Public Broadcasting. I don’t know. I imagine it could be picked up nationally by something like C-SPAN or something like that. But yeah, you should be able to stream it on the West Virginia website.## Tim Armstead and the Court Vacancies [35:17]Bob Zadek: There’s one other character I want you to speak about briefly, and that’s Armstead. He has an interesting, less important, but he is affected by this in very strange ways. Tell us who Armstead is and how he fits into all of this.

Laurie Lin: Sure. So Tim Armstead is the man who until recently was Speaker of the House of Delegates in West Virginia, the lower chamber. He’s a Republican, and he announced back in 2017, before this even started, that he would not be running for reelection to the House because he was interested in running for the state supreme court. He’s a lawyer, and so he announced that, and he’s been part of this impeachment process. He made an effort to stay in the background, but as a member of the House, he was ultimately required to vote on impeachment. So he voted on the impeachment; he voted to impeach. The governor, just this past week or maybe the week before, appointed Speaker Armstead to one of the vacant seats on the court that have been created by the two resignations. And so he is both a temporary justice on the court, as of mid-September—he hasn’t been sworn in yet—but he’s both a justice and running for one of the seats, which are both up for election in November. So he’s no longer part of the House, but he has been part of the House. Now he’s part of the court and also running for a seat on the court.## Defining Corruption and Maladministration [38:50]Bob Zadek: Tune in. This is a tune-in for the fall and see what happens. Now, Laurie, let’s get to the really cool stuff. First of all, most of the articles—and this has gotten written about widely in the political press—the word “corruption” appeared throughout. Almost every article uses the words “corruption” in reference to the judges. But there was—putting aside using the fuel card and putting aside using a car to drive to a golf tournament or whatever they did, a government car—putting aside those cheap shots, at least at the level of the state supreme court—putting all that aside, where was the corruption? The judges—and I ask our friends who are listening to the show—here you are, you get elected to a pretty gosh-darn important position. You get elected to the state supreme court and you’re feeling pretty important. You can’t help but feel important. You go there, you show up, and you’re told, “Okay, here’s your office, all this mahogany and all this beautiful wood. And by the way, you can decorate it and spend as much as you want. We have an unlimited budget. And everybody before you has spent unlimited amounts of money. So have at it.” And you say, “That’s pretty cool. I’m in.” And you go ahead and do it. And as a result of doing what every judge before you has done—you find yourself—in the case of Loughry—you found yourself indicted and you’re going to go to jail for like 400 years. That’s what he could be sentenced for. You lose your bar license, you get impeached, and you’re shell-shocked. What in God’s name did I do? I just did what everybody else did. Is that being too charitable with these justices?

Laurie Lin: Well, I think it’s a really good point because if you look at what the job of a judge is in the most basic sense, is to hear cases, depending on what level they’re hearing them, and hopefully administer justice. And I don’t think any person who’s been before this court can say, “I didn’t receive justice because Justice Davis spent sixty thousand dollars on a glass countertops,” right? The two things are pretty separate. So nothing that they’ve actually done as judges has come into play here. They’re not accused of any bribery, fraud, making sloppy decisions, nothing like that, in the impeachment. So I do think it’s fair to say, yeah, this is a little bit unusual in that sense. They’re not being impeached for what you would normally think a judge would be impeached for. But having said that, maladministration is one of the offenses in the West Virginia Supreme Court that are impeachable. And I think it’s fair to say that when you have a small state, a fairly poor state, a state that has had big budget troubles that has had to cut back in a lot of ways—West Virginia’s been hard hit by the changing energy economy and their dependence on coal—certainly in recent years, a lot of state agencies have had big cuts. And particularly in that environment, when you have people spending this much on things that are essentially for their own use—I cannot just wander into Justice Loughry’s office and sit on his couch. That is really only his couch—his couch and his people who work for him. It’s not a public expenditure. When they’re spending that much money, I do think it arguably falls into the category of maladministration, which is impeachable.

Bob Zadek: Now, you asked—the job description of the Supreme Court justice is to be a good judge. While it’s impossible to make this kind of calculation in a precise way, but there isn’t—I don’t see there’s any real suggestion that these judges individually or as a group were, as a group, bad at their job or worse than justices who buy their furniture at IKEA. There’s no suggestion that the core mission of the core job was done any worse. So they were gluttonous in their spending and they had a tin ear when it comes to the political implications of it and appearances, but in the job, isn’t it fair to say that spending and the being a good justice are totally unrelated? It’s like being short and being a good justice. They just have nothing to do with each other.

Laurie Lin: I think you could certainly make that argument and certainly for those of us who would like the court to turn in maybe a little bit more conservative judicial direction, Justice Loughry was a hero. He was elected as a Republican on a court that had not seen very many Republicans elected. He wrote opinions that were pretty good, pretty careful. I could certainly quarrel with some of them, but he was not—he obviously was taking the job very seriously, as I think were all of the justices. It is a shame certainly for those of us who followed his career and thought he had a lot of—he was talked about as a possible federal court appointment one day. And so yeah, I do think it is striking. But you know what? I looked up the corruption—the definition of corruption the other day, and there is the kind of lying, bribery definition, but there’s also, in a non-political sense, corruption means to be changed in a bad way. And I think what some people would say is that Justice Loughry was corrupted in the sense of being changed by being elected to the court, and maybe it went to his head and that’s what led to his downfall.## The Debate Over Judicial Elections [42:15]Bob Zadek: But what you say—the way he was corrupted was his personality, not his skill as a justice. Another issue that is brought to our listeners out there, and we haven’t resolved it as a country really, if it can be resolved, and that is your Supreme Court justices are elected. And there is a discussion, an important discussion whether judges in general should be elected or appointed. Many lawyers observe that the best way to get good judges is to have an independent judge selection committee, a bar association or some group of disinterested observers of the judicial system, and they submit a list to the governor and the governor picks from that list but must pick from the list. I’ve always felt that the election of judges is a rather bizarre way. It’s like electing people to play professional football. How can you elect people? It requires you have to know all about the activity to decide who’s going to be best at it. So is there any lesson, because you are a political observer, you’re a journalist and you are, were and perhaps still are a practicing attorney—is there anything that this experience in West Virginia tells you about the issue of election or some other selection mechanism for judges?

Laurie Lin: Yeah, that is a really important question. And I think it comes down to what you want to maximize. And to me the two competing values are independence, as you say, and democratic accountability, right?## Judicial Independence and the West Virginia Impeachments [46:53]Laurie Lin: So you want—we live in a democracy and you want the people in charge of you to be accountable to you in some sense, but our judiciary is counter-majoritarian in the sense that we want them to be able to make decisions—like, for example, to strike down a law that infringes on free speech, even though it might be a popular law, or to protect criminal due process, even though it may be clear that someone is guilty, and—but yet the search warrant was illegally executed. And so you want to make sure that you make a decision that preserves due process, so innocent people aren’t convicted.

And so to me, I come down more on the side of: we want judges to be independent. Now, of course, in the federal system, Article III judges are appointed and they are lifetime appointments, and so democracy only enters into it in the sense that we elect the people who appoint them and confirm them, and we also elect the people who could potentially impeach them. Impeachment is the check on the judges, and it has been used on Article III judges. I think only one U.S. Supreme Court justice has ever been impeached, and he ultimately wasn’t removed.

But in West Virginia, even though they are elected judges, they are being potentially removed, not by direct democracy—they’re not being voted out of office right now. They are being impeached, which is the less democratic way of removing them. So, yeah, I do think it is really interesting to look at election versus appointment. And right now it’s about half and half. I think about half the states elect their highest court and about half appoint them, either through the legislature or the governor.

Bob Zadek: Now we have only a couple of minutes. The two questions, Laurie, if we have time. Number one: in the whole process, whether or not the judges get impeached or rather convicted, and they’re thrown out of office in the upper house or not, has West Virginia been well served in this entire process or has the process let down the citizens of West Virginia?

Laurie Lin: That’s really—yeah, that’s kind of the basic question here and it’s a little bit hard for me to answer. I think you could say, well, this has been a sideshow; it’s brought the state negative attention. If we were going to impeach, we should only impeach Justice Loughry, who is pretty clearly the most culpable here. But on the other hand, I do think it’s valuable that the spending and the general culture of the court was brought to light, and I think we are going to see some positive changes.

For example, the constitutional amendment I alluded to, I think is on balance a good idea, to have the judicial system answer to another entity in their spending. And certainly, look, no one is going to spend five hundred thousand dollars renovating their office in the state, which—going forward—which may be a small—five hundred thousand dollars is a drop in the bucket even in a state as small as West Virginia. But you need to have people accountable and people need to feel like the government is spending their money efficiently. And I think people will have a sense that at least—sorry, the only real winner, I think the only real winner in this is IKEA. They’re gonna—they’re gonna make winner at all events.

Bob Zadek: Laurie, thank you so much for sharing this wonderful story of down-and-dirty politics and the judicial system in West Virginia. Laurie, we appreciate you very much giving us an hour of your time on this Sunday morning. As John Philip Sousa starts playing in the background, I want to thank Laurie so much for joining us and to all my friends out there for spending an hour with us. This is Bob Zadek. I’ll be back again next Sunday for another one hour of “ideas, not attitude.” Please stay tuned and I’ll speak to you next week. Laurie, thanks so much.

Laurie Lin: Thanks, Bob. A pleasure.

Show prep notes

Bob’s own preparation for this episode.

Laurie Lin – The $32,000 Couch that - 9/2

Follow her writings at West Virginia’s Charleston Gazette-Mail or

@WVPundette

BIO (Federalist Society): Laurie Lin is a columnist and editorial writer for the Daily Mail opinion page at West Virginia’s Charleston Gazette-Mail, where her opinion writing has been honored by the West Virginia Press Association. A former corporate tax attorney, she was also a co-founder and panelist for the Front Porch Podcast, a project of West Virginia Public Broadcasting focusing on Appalachian politics and culture.

RECAP (Wikipedia):

On August 13, 2018, the West Virginia House of Delegates impeached the four remaining justices of the Court. Justice Robin Davis retired the next day rather than face trial. The fifth justice, Menis Ketchum, already stepped down prior to the start of proceedings. The remaining three await trial in the West Virginia Senate. If all three remaining justices are removed, it will be the only court without a sitting judge.

…

In late 2017, media began reporting on spending by the court. Court was audited by the state’s legislative auditor, who found “irregularities in the court’s practices including undocumented( and commuting use of court-owned vehicles and the improper purchase of gift cards.”

Significant public attention was centered on spending for expensive office renovations, including a $32,000 couch for Loughry, and Loughry’s use of an original Cass Gilbert-designed desk from the State Capitol at his home.( Justice Ketchum was reported to have used a state vehicle to travel from his home in Huntington to work, and for several vacation trips, without paying tax on the fringe benefit.( Justice Ketchum then had his income tax amended to pay the back tax and repaid the state over $1600 for the issue.

Early in 2018, the other four justices voted to remove Allen Loughry from his position as chief justice when they became aware he had withheld the existence of a federal grand jury subpoena from them. On June 6, 2018, Loughry was charged with 32 violations of the state Code of Judicial Conduct.( The Supreme Court, reconstituted with four circuit judges and a retired circuit judge appointed for that purpose, suspended Loughry without pay until further notice as a result of these charges.(

On June 20, 2018 (West Virginia Day), Michael B. Stuart, the United States Attorney for the Southern District of West Virginia, announced a 22 count indictment against Loughry. **He faces nearly 400 years in prison.(

On June 26, 2018, the West Virginia House of Delegates assembled in special session to consider Loughry’s or any other justice’s impeachment.( The matter was referred to the House Judiciary Committee. In the course of its investigation, additional issues were discovered relative to splitting the pay of “senior status judges”, who are retired judges filling in certain circumstances and who can make no more than 25% of an active judges’ salary, between IRS Form W-2 and Form 1099 in order to circumvent that rule; and of the court purchasing “working lunches” at taxpayer expense on a regular basis.

On July 11, 2018, Justice Ketchum resigned from the court. On July 31, 2018, he entered a guilty plea in the United States District Court for the Southern District of West Virginia in Charleston to one count of wire fraud.(

On August 7, 2018, the House Judiciary Committee recommended that all four remaining justices be impeached. Loughry for lack of oversight, improper removal of the desk to his home, improper use of a government computer, improper use of state owned cars for personal travel, overspending on his office decorations, the overpaying of “senior status judges” and lying to the Legislature; Workman and Davis for overpaying of “senior status judges”, lack of oversight, and overspending; and Walker) for lack of oversight and overspending.( On August 13, 2018, the full House of Delegates impeached the four remaining members of the court. On August 14, 2018, Justice Davis retired, effective August 13, 2018, rather than face trial on the impeachment. ( Loughry, Walker and Workman currently await trial on the impeachment in the West Virginia Senate.( On August 13th, 2018 conservativedailypost.com reported that the “West Virginia Supreme Court Judges All Impeached” and also said “An atmosphere of entitlement and cavalier disregard for the expenditure of taxpayer money has led to punishment of historic significance”.(

The West Virginia Senate met on Monday, August 20, 2018 to receive the articles of impeachment from the House of Delegates and approve the rules governing the impeachment trials. In addition, the Senate confirmed that Judge Farrell will preside over all of the trials. The Senate also voted to try each of the justices separately with Farrell determining the order that the justices will be tried.(

Justice Ketchum’s seat and Justice Davis’ seat will ultimately be filled in separate special elections which will be held alongside the 2018 general election on November 6, 2018. On August 25, 2018, Governor Jim Justice appointed Tim Armstead, former Speaker of the House of Delegates and Evan Jeknins), U.S. Representative for West Virginia’s 3rd congressional district, to the two vacant seats until the special elections. Armested will take Ketchum’s seat while Jenkins will take Davis’ seat with both having already filed to run in the November special elections. ( In accordance with Chapter 3, Section 10 of the West Virginia Code, as there currently less than 84 days before the November 6 election, any further vacancies will be filled by interim justices appointed by Governor Justice. Barring any changes by the Legislature, these interim justices would likely serve until the primary election in May 2020, when a special election would be held.(

Under the West Virginia Constitution as exists presently, the budget of the judicial branch is not subject to outside review like that of the legislative and executive branches. In November 2018, voters will consider a constitutional amendment that would subject the judiciary’s budget to oversight as part of the budget process used by the rest of state government.

AUDIO: Federalist Society Symposium

• Steve Canterbury was fired by Justice Loughry over personnel issues. Canterbury went to the press.

• Court was 3 dems, 2 Rep.

• State judges are elected and serve 12 year staggered terms.

Justice Allen Loughry’s $32,000 couch – just 10% of what he spent on his office:

• Four judges impeached (the first step) for maladministration - one retired. One is resining.

• Charges of maladministration relate to personal travel, lavish office, etc.

• Two of five judges exonerated on the issue of office spending.

• The political situation is that the Governor is going to be replacing the whole court – temporarily.

• An astute caller named Bob Zadek asks whether the Supreme Court spending is out of line with their predecessors: the Egyptian themed office had to be renovated. That snowballed into a culture of personalizing offices to an absurd degree.

• Laurie predicts that Loughry will be removed, but that two to three will remain.

West Virginia Supreme Court Faces Impeachment Threat - WSJ

Gated from August 8.

West Virginia’s Entire Supreme Court Just Got Impeached - Hit & Run : Reason.com - Joe Setyon, Aug. 14, 2018

“Loughry is facing something worse than just removal from office. In June, he was indicted on multiple counts of fraud. His case is somewhat ironic, considering that he’s the author of a 2006 book about political corruption in West Virginia.”

Don’t Buy Another Vote, I Won’t Pay for a Landslide: The Sordid And Continuing History of Political Corruption in West Virginia, by Allen Loughry (2006)

Reviewers write:

“Funny he would write a book about corruption considering he is looking at 400 years behind bars for it. I guess it took an expert to know all the tricks.”

“The fox writes a handbook on how to build a safer chicken coop. Mr. Loughry has been indicted for jury tampering and fraud. We shall see, but if these allegations turn out to be true, this book will have earned its place in the library of modern ironies.”

Interesting side note: John McCain and Robert Byrd are both listed as contributors – McCain wrote a preface to one edition.

Trump’s Rally Isn’t the Craziest Thing Happening in West Virginia Right Now - Hit & Run : Reason.com Aug. 21, 2018

“…[T]he plot thickens. House Speaker Tim Armstead (R-Kanawha) announced today he’s resigning from the House of Delegates and running for Supreme Court:

Armstead is technically looking to replace the one justice who wasn’t impeached. (Ketchum resigned beforehand.) But that doesn’t make his decision to run any less odd. Essentially, the politician who led impeachment proceedings against West Virginia’s Supreme Court is now running to be on that Supreme Court.”

West Virginia House Votes To Impeach All 4 State Supreme Court Justices : NPR Aug. 13

West Virginia’s House of Delegates voted to impeach all four justices on the state’s Supreme Court of Appeals on Monday.