Mingo officials wrong to try to fill family judge vacancy, court rules

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that Mingo County officials exceeded their powers in trying to fill a judicial vacancy on the Eighth Family Court Circuit by placing a nominee on the upcoming November election.

The state’s high court, in its 12-page opinion, granted Secretary of State Natalie Tennant’s petition for writ of mandamus.

“The respondents are directed to remove any and all references to an election to fill an unexpired term of judge for the Eighth Family Court Circuit from the 2014 general election ballot,” Justice Allen Loughry wrote for the court.

From the beginning, Tennant’s office informed the clerk of the Mingo County Commission that the family court position was subject to gubernatorial selection rather than election.

In fact, just hours after the court released its decision, Gov. Earl Ray Tomblin announced the appointment of Sabrina Deskins as the circuit’s new family court judge.

Deskins will fill the vacancy created by the appointment of former Family Court Judge Miki Thompson to circuit judge for the Thirtieth Judicial Circuit.

In May, Tomblin appointed Thompson to fill the vacancy on the Thirtieth Judicial Circuit created by the resignation of Judge Michael Thornsbury. Earlier this year, Thornsbury was sentenced to 50 months in prison for a felony conspiracy charge.

Because Thompson’s elected term of office was not set to expire until January 2017, the next scheduled election for the affected family court judgeship would not be held until November 2016. As a result, Tomblin declared a vacancy for the family court on or about July 25.

The state Judicial Vacancy Advisory Committee accepted applications for the position through Aug. 19, with interviews scheduled for Sept. 12.

However, on Aug. 5, the Mingo County Democratic Executive Committee met and nominated a candidate – Jonathan “Duke” Jewell – to fill the vacancy.

In a letter dated Aug. 7, Mingo Commission Clerk Jim Hatfield received notice of the election and was requested to place Jewell on the ballot for the Nov. 4 general election. Tennant’s office also received a copy of the letter via fax.

Once notified of the plan, Tennant’s office instructed the ballot commissioners to remove the vacancy from the ballot. However, the commissioners continued with their plan and submitted the ballot to the printers.

On Aug. 28, the Secretary of State issued a directive to the ballot commissioners, ordering them to remove from the ballot “any and all references” to an election to fill an unexpired term of judge of the Eighth Family Court Circuit.

In a Sept. 2 response, Hatfield requested additional time to “read, consider and decide if legal action is necessary to allow the good people of Mingo County to decide who will be their family court judge and not by some appointment as you recommend.”

Tennant agreed to move the deadline to Sept. 4. However, when the amended compliance date passed with no response, she sought relief from the high court.

“Finding the constitutional provision to be wholly inapposite and further determining, after a thorough examination of the controlling election laws, that the provision upon which the ballot commissioners rely is expressly inapplicable to a judicial office, we find that the petitioner is entitled to the requested writ of mandamus,” Loughry wrote for the court.

With no exceptions provided, the governor is required to fill the vacancy, he said.

“Given the undisputed absence of the requisite gubernatorial proclamation and corresponding call for an election, the ballot commissioners lacked the necessary authority to place an election for the Eighth Family Court Circuit on their 2014 general election ballot,” Loughry wrote.

Justice Brent Benjamin, in a concurring opinion, noted that judgeships are not county positions, but circuit positions.

“Here, the county executive committee sought to fill a circuit, not a county, position,” he wrote. “In doing so, it sought to do something to which it has no legal authority.”

Deskins, who will become the circuit’s newest family court judge, started as the assistant prosecuting attorney in Logan County Prosecuting Attorney’s Office. She also served as the city attorney for the town of West Logan, an approved family court mediator for the state Supreme Court, and guardian ad litem for Family Court in Logan, Mingo and Lincoln counties.

“Sabrina’s legal and professional background in the family court system will help her to serve the people of Mingo County well in her new role as family court judge,” Tomblin said in a statement.

The next scheduled election for the family court seat is set for November 2016.