CHARLESTON – A Clay County attorney has asked the state Supreme Court to remove Evan Jenkins from the state Supreme Court ballot in the November election, saying he doesn’t meet the qualifications to be a justice.
Wayne King filed a petition Sept. 10 with the state Supreme Court, naming Secretary of State Mac Warner and Jenkins as respondents. King asks the court to direct Warner to omit Jenkins’ name from the ballot.
The question King presents regards Jenkins’ law license.
“May a person who has not been admitted to practice law for at least ten (10) years immediately prior to the 2018 election be a candidate for justice of the West Virginia Supreme Court of Appeals,” King’s petition asks.
He notes that former Justice Robin Jean Davis retired Aug. 13, and that Gov. Jim Justice appointed Jenkins to that seat temporarily on Aug. 24. Jenkins also has filed to fill the remainder of the term, thus putting him on the November general election ballot.
But, King notes that Jenkins had voluntarily made his law license inactive from Dec. 2, 2014, until Aug. 9, 2018, while he served in the U.S. House of Representatives.
“Jenkins cannot be elected to the unexpired term as a justice of the West Virginia Supreme Court, Division 2, because he had not been admitted to practice law for at least 10 uninterrupted years prior to the scheduled Nov. 6, 2018, election that will fill said vacant position,” King’s petition states. “Therefore, respondent Warner should delete and remove his name from the official ballot for said Division 2 office.”
King had applied to temporarily fill a seat on the court following the retirements of Davis and Menis Ketchum. He is representing himself in the matter.
Another candidate also has said he plans to file a similar petition with the court.
Charleston attorney Bill Schwartz told The West Virginia Record last week he plans to file before the Sept. 19 deadline for doing so. His petition also will mention the status of Jenkins’ law license during his time in the House. But it also will mention that both Davis and Ketchum were elected as Democrats, so Justice should have appointed Democrats to temporarily fill those seats.
Schwartz said his legal challenge is being handled by Teresa Toriseva and Josh Miller of Toriseva Law in Wheeling. Toriseva declined further comment on the matter.
In addition to Justice’s appointments of Jenkins and Armstead, Chief Justice Margaret Workman previously appointed Cabell Circuit Judge Paul T. Farrell to sit in for suspended Justice Allen Loughry during his suspension.
Also, 20 people have filed to run for two seats on the state Supreme Court in this November's general election. There are 10 candidates who filed for each seat.
The Division 1 seat has two years left on Ketchum's term, and the Division 2 seat has six years left on Davis's term.
Those who filed for the Division 1 seat are Armstead, Charleston attorney Harry C. "Bo" Bruner Jr., Williamson attorney Robert H. Carlton, Huntington attorney Ronald H. Hatfield Jr., Charleston attorney Mark Hunt, Clay County attorney Hiram "Buck" Lewis IV, Barboursville attorney D.C. Offutt Jr., Kanawha Circuit Judge Joanna Tabit of Charleston, Berkeley Circuit Judge Chris Wilkes of Martinsburg and Nitro attorney Jeff C. Woods.
Those who filed for the Division 2 seat are Jenkins, Schwartz, Kanawha Family Court Judge Jim Douglas of Charleston, Lewisburg attorney Robert J. Frank, former state Senate President Jeff Kessler of Glen Dale, Hurricane attorney Brenden D. Long, Wheeling attorney Jim O'Brien, Wheeling attorney Marty "Red Shoes" Sheehan, Charleston attorney Dennise Renee Smith and Boone Circuit Judge William S. Thompson of Madison.
The retirements of Ketchum and Davis came in the wake of state and federal investigations into spending practices of the Supreme Court.
Ketchum resigned in July before a federal information was filed against him. He pleaded guilty Aug. 23 to one count of wire fraud. His sentencing is Dec. 6.
Ketchum admitted to using a state-owned vehicle and a state purchasing card on golf trips to Virginia, according to a federal information filed last month. He had resigned and retired from the court last month, weeks before the information related to misuse of a state vehicle was released.
Ketchum, 75, faces a maximum sentence of 20 years in prison and a $250,000 fine. He is free on a $100,000 bond pending sentencing.
An information is used by federal authorities when a defendant agrees to plead guilty and waives his right to an indictment. An information can’t be filed without a defendant's consent. It also usually means the defendant is cooperating with federal prosecutors. U.S. Attorney Mike Stuart and federal investigators have been examining the state Supreme Court’s spending practices.
Ketchum used a state-owned vehicle to commute from his home in Huntington to the court in Charleston starting in 2012, according to the information. That was allowed by his fellow justices.
Davis resigned in August on the same day the House of Delegates passed articles of impeachment against her, Chief Justice Margaret Workman, suspended Justice Allen Loughry and Justice Beth Walker.
Loughry faces a 25-count federal indictment after the federal grand jury issued another second superseding indictment against him earlier this month. The new charges allege Loughry, 48, used a state vehicle to travel to his native Tucker County to attend a court hearing for his father and used a state credit card to purchase gas for personal travel. In total, Loughry faces 17 counts of wire fraud, three counts of mail fraud, three counts of making false statements to federal agents, one count of obstruction of justice and one count of witness tampering.
He also is named in a 32-count charge from the state Judicial Investigation Commission of violating the Code of Judicial Conduct by misusing state resources and lying about it.
West Virginia Supreme Court of Appeals certification number 18-0783
