by Ron Gregory
ronjgregory@gmail.com
CHARLESTON – Governor Jim Justice’s recent appointees to the state supreme court of appeals will not be taking their seats as soon as expected.
Justice appointed Republican Congressman Evan Jenkins and former House of Delegates Speaker Tim Armstead to fill two vacancies on the court on August 25. A 20-period is permitted by law for those objecting to the appointments. Legal cases were filed against each last week.
Clay County attorney Wayne King, an unsuccessful candidate for supreme court in the May primary, filed a writ of mandamus essentially demanding that Republican Secretary of State Mac Warner not include Jenkins in the list of candidates on the ballot November 6.
Charleston lawyer William Schwartz filed a combined mandamus and writ of prohibition motion. A scheduling order entered by the supreme court, acting with two elected members and three appointed members, gave respondents until today to answer King’s motion and until September 19 to respond to Schwartz’s petition.
Two elected supreme court justices resigned recently and one is suspended by the state bar. Since former Justices Menis Ketchum and Robin Davis resigned before the deadline for a special election to choose someone to complete their terms, Jenkins and Armstead are both running for the separate positions. In the meantime, Justice appointed the pair to fill the vacancies on an interim basis until the candidates chosen by the voters to complete the terms are certified.
Until 2016, West Virginia justices, judges and magistrates were elected on a partisan basis. After 2016, they are chosen in non-partisan balloting. Both Ketchum and Davis were elected as Democrats. Prior to 2016, the governor would have had to appoint replacements from the same party. Now, there is no such requirement. All three – Justice, Jenkins and Armstead – are Republicans.
The supreme court has been involved in controversy for over a year, with the legislative auditor and federal officials conducted investigations. Those investigations led to the suspension of former Justice Allen Loughry and the resignations of Ketchum and Davis. Impeachment hearings for court members are scheduled to begin next month in the state senate. Impeachment consideration also involves sitting Chief Justice Margaret Miller and Justice Beth Walker.
In his petition, King, the Clay lawyer, claims Jenkins has not been admitted to practice law for ten years prior to the November election.
King’s mandamus motion asks the supreme court to direct Republican Secretary of State Mac Warner to remove Jenkins’ name from the November 6 ballot. He asks that Warner be directed to withdraw Jenkins’ candidacy from the Division 2 election. There are nine other candidates who have filed in that contest to fill Davis’ seat.
Portions of King’s and Schwartz’s motions are similar. Two lawyers are listed as representing Schwartz: Teresa Toriseva of Wheeling and Paige Flanigan of Princeton.
Schwartz is a candidate for the supreme court. King filed in May primary for the full-time position but is not a candidate now.
In his petition, Schwartz and his counsel make the argument that Davis was elected as a Democrat and, despite the change to non-partisan balloting, should be replaced by a member of the GOP.
In the argument regarding Jenkins’ ten years of practice, the lawyers quote the state constitution: “No person may hereafter be elected to justice of the supreme court unless he has been admitted to practice law for at least ten years prior to his election.”
In the Schwartz petition, the questions are then asked, “is the ten-year requirement met with ten years accumulated at any time of with ten uninterrupted years accumulated the decade before the election?” and “does the same constitutional provision require ten years of actual experience practicing law or is holding a law license and performing non-lawyer jobs enough to rise to the office of supreme court justice?”
The next question relates to partisan politics. “Has Article II, Section 2 and Article II< Section 4 been violated when voters elect two supreme court justices and a governor, all as Democrats, and the governor flips party loyalty to Republican after winning the election as a Democrat, and subsequently appoints two supreme court vacancies with “conservative” Republicans?
Schwartz’ motion then questions whether the “emoluments clause” by has essentially been violated by Armstead’s appointment. The petition notes that the Kanawha County Republican was among legislators who voted to begin impeachment proceedings against the supreme court and those proceedings resulted in one of the vacancies to which Armstead is being appointed.
Schwartz was one of those recommended by the Judicial Vacancy Advisory Commission to replace Davis.
The petition says Jenkins was admitted to practice law in West Virginia on April 5, 1988. From 1987 to 1992, Jenkins worked at his father’s law firm, Jenkins Fenstermaker, PLLC, in Huntington. According to Schwartz, “this is the first and last job Jenkins held that required him to practice law.”
From 1992 to 1999, the petition alleges, Jenkins was general counsel to the West Virginia Chamber of Commerce. From 1999 to 2014, he was executive director of the West Virginia Medical Association.
From 1994 to 2018, Jenkins has run for five different offices ten different times. “For 22 of the past 25 years, Evan Jenkins has been an elected official and running for one of five different offices,” according to Schwartz. “Of every position held by … Jenkins, a non-lawyer could hold that same position since 1992.”
The petition notes that Jenkins has lost his only two statewide runs: in 2000, for supreme court; and in 2018, for the U.S. Senate in the Republican primary.
“In 2014, Jenkins placed his West Virginia law license on inactive status, an act he was not required to do, but do so voluntarily, after he was elected to the United States House of Representatives.”
A registered Democrat until 2013, Jenkins reactivated his law license on August 9, 2018.
Schwartz then raises an issue the Corridor Chronicle has repeatedly questioned. “Although Jenkins stands appointed by the governor as a supreme court justice and is on the ballot for that same seat come November 6, he has nonetheless not yet resigned his United States House of Representatives seat.” The paper has consistently pointed out that Jenkins is having the best of both worlds: acting as a partisan Republican congressman such as during the President Trump rally in Charleston but standing as a non-partisan supreme court nominee and candidate.
The petition says Jenkins, in his own application, admits he has no recent trial experience. In response to a request for the case number and court of all trials handled to conclusion in the last five years, “he can state only work from 1988 to 1992.”
It continues, “When asked to list honors, prizes or awards received, Evan Jenkins list three pages of awards, overwhelming in their volume, and each one of them political and none related to the practice of law.”
Of Armstead, the petition calls him the de facto leader of the state Republican party. It also notes that he recused himself, as speaker, from presiding over the special impeachment session. Nevertheless, he remained on the floor and voted in favor of proceeding with investigating the court for impeachment purposes. (Advisors and ethics support staff advised Armstead he was obligated to vote on those matters).
On August 4, Armstead voted yes on a bill that recommended public reprimands for the four sitting supreme court justices.
According to the petition, a supreme court justice salary is $136,000 while the house speaker makes $20,000 plus $150 for each day actually served and $150 for attending legislative activities.
The petition says Armstead has not practiced law since 2006.
In summary, Schwartz argues that neither Jenkins nor Armstead meet the licensing and experiential qualifications required and both are Republicans when the law requires that Democrats be appointed.