CHARLESTON — U.S. Rep. Evan Jenkins and former House of Delegates Speaker Tim Armstead have been declared eligible to serve as temporary justices on the state Supreme Court, and Jenkins is eligible to be on the Nov. 6 ballot for a seat on the bench.
The state Supreme Court heard oral arguments Sept. 24 in two legal challenges to Gov. Jim Justice's appointments of Jenkins and Armstead, both Republicans, to fill in for former Justices Robin Jean Davis and Menis Ketchum, who both were elected as Democrats before judicial elections in West Virginia became non-partisan.
"The court is of the opinion that these matters should be dismissed as improvidently granted inasmuch as, after mature consideration of the matters presented the court finds there is no clear right to the relief sought by the petitioners," states the order, which was issued just hours after oral arguments.
Charleston attorney Williams Schwartz filed his Writ of Mandamus and Writ of Prohibition Sept. 13 with the court. A few days earlier, Clay County attorney Wayne King filed a similar petition naming Warner and Jenkins as respondents. King asks the court to direct Warner to omit Jenkins’ name from the ballot because of the same issues regarding Jenkins’ law license.
Jenkins released a statement after the order was handed down.
"Today’s decision is a victory for every West Virginian who’s ready to put a stop to the wasteful spending and misuse of taxpayer dollars," Jenkins said in a statement provided to The West Virginia Record. "Everyone saw these bogus lawsuits for what they were, partisan attacks trying to deny the voters the opportunity to elect a new justice that’s going to uphold the constitution and apply the law equally and fairly to each and every West Virginian
"I appreciate the court’s quick decision that now clears the way for me to get to work right away restoring the public’s trust and confidence on our state’s highest court that the citizens expect and deserve."
Jenkins' attorneys argued that he has been admitted to practice law in West Virginia for more than 30 years—more than triple the 10-year requirement for those on the Supreme Court.
Challengers also argued that because his status was changed to inactive for the last four years during his time in Congress, he is ineligible. Jenkins later changed his status back to active.
Challenges against Armstead were because the House of Delegates has been focused on the impeachment proceedings for the last several months prior to Armstead's resignation as House speaker.
"Having considered the petitions, the responses and oral arguments of the parties, the court is of the opinion that these matters should be dismissed as improvidently granted inasmuch as, after mature consideration of the matters presented the court finds there is no clear right to the relief sought by the petitioners," the order states.
Jenkins and Armstead couldn't be sworn in until the challenges were settled.
With Justice Allen Loughry suspended and Justices Margaret Workman and Beth Walker disqualified from hearing the arguments, Acting Chief Justice Paul Farrell and Judges Russell Clawges, Timothy Sweeney, H. Charles Carl and R. Craig Tatterson were sitting by temporary assignment.
In his writ, Schwartz made an argument about party affiliation.
“While the vacancies were created by the resignations of two Democrats (Robin Jean Davis and Menis Ketchum), Governor Justice appointed two Republicans to those vacancies which shifts the power of the Judicial Branch to match the Executive Branch and the Legislative Branch,” Schwartz’s writ states.
Jenkins and his attorney called the filing by Schwartz and a similar one filed a few days earlier bogus.
“Both suits are nothing more than a desperate, partisan effort to keep me from restoring honesty, integrity and accountability to our state’s highest court," Jenkins said last week. "I’m ready to get to work to bring the change every proud West Virginian deserves and demands.
"These bogus lawsuits are simply an effort to cover up for the outrageous spending and misuse of taxpayer money we’re all mad as heck about and to score political points for another candidate’s own campaign simply trying to get his name in the news.”
In his response to the writ, Jenkins says he is eligible to serve as a justice and should be on the ballot.
Schwartz's complaint contends Jenkins isn’t legally qualified to be on the ballot for a permanent Supreme Court seat because his law license was placed on inactive status from Dec. 2, 2014, until Aug. 9, 2018, as he served in the U.S. House of Representatives.
“An act he was not required to do, but did so voluntarily,” the writ states, noting that Jenkins still hasn’t resigned that House seat despite having been appointed to the Court by Justice.
“Evan Jenkins himself, in his application for appointment, … admits he has no recent trial experience,” the writ states. “When asked to state 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.”
As for Armstead, Scwartz’s writ stated Armstead was admitted to practice law in 1990 and that he hasn’t practiced since 2006. It also notes that while Armstead recused himself from presiding over the House impeachment proceedings, he still voted to investigate all members of the Supreme Court for impeachable offenses and to recommend a public reprimand of four justices.
Schwartz’s writ presented the following questions:
* Is the 10-year requirement met with ten years accumulated at any time or with 10 uninterrupted years accumulated the decade before the election?
* Does the same state Constitutional provision require 10 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?
* Has the state Constitution been violated when voters elect two Supreme Court justices and a governor, all as Democrats, before the governor flips party loyalty to Republican after winning and subsequently appoints two Supreme Court vacancies with “conservative” Republicans?
* Is the state Constitution violated by a gubernatorial appointment of a legislator to a vacant Supreme Court seat who voted to investigate and impeach the entire Supreme Court and then resigned to run for one of the two seats vacated, at least partially, by House impeachment proceedings?
Schwartz contends both Jenkins and Armstead fail to meet qualifications to be a Supreme Court justice and that Justice violated the Constitution and state law by appointing them because their party affiliations are different than the elected justices they are replacing.
“Without current relevant legal experience, this court has no way to ensure a candidate is qualified,” the writ says of Jenkins. “The candidate must be admitted continuously and uninterrupted to practice law for the decade prior to his election.”
The appointment of Jenkins and Armstead will violate “the clear will of the voters and similarly deny equal protection to those who voted to elect three Democrats,” the writ states. “The party switch coupled with these appointments are the filling of elected seats through means other than election and result in three ‘conservative’ Republicans in office where Democrats were elected by the people at the last authorized election.”
Schwartz says Armstead’s votes as a sitting delegate regarding the impeachments violates the Emoluments Clause.
“His base salary would go from about $30,000 to $140,000,” the writ states. “Such enrichment created by his own vote on impeachment is specifically prohibited by the emoluments clause and can only be cleansed through the will of the voters.”
Schwartz, a founder of Harvit & Schwartz, told The Record before the writs were filed that the issue is a simple matter of party lines. He noted the 2016 state Supreme Court ruling that required then-Gov. Earl Ray Tomblin to appoint a Republican to replace former state Sen. Daniel Hall. Hall was a Republican when he resigned, but he was elected as a Democrat. The state Democratic Party took the matter to the state Supreme Court.
Schwartz said both Davis and Ketchum were elected to the Supreme Court as Democrats. Both of those elections took place before judicial races became non-partisan in West Virginia.
“The bottom line is that if a Democrat resigns, you have to put a Democrat in that seat,” said Schwartz, who was involved in the 2016 matter. “And both of these justices were Democrats when they were elected.
“It’s straightforward, black letter of the law. It doesn’t have to be me, but both Jenkins and Armstead are Republicans.”
Also, Schwartz said the issue of Jenkins’ basic qualifications will be addressed in the legal action.
Until just before he was appointed to the Supreme Court, Jenkins’ law license had been inactive for almost four years. Jenkins has said he placed it on inactive status while he served in Congress from Dec. 2, 2014, to Aug. 9.
The state Constitution says a state Supreme Court candidate must have been admitted to practice law for at least 10 years prior to election.
Schwartz said another issue involves Armstead’s vote as a legislator to give pay raises to state Supreme Court justices. That would mean Armstead voted to give his new position a pay raise.
“When I decided to run for a seat on the Supreme Court, I was hoping to be part of process of making the court better,” Schwartz said. “At some point, someone has to follow the law.
“Two corruptions don’t make a right.”
When Justice made the appointments last month, he talked about how he felt it was important to appoint conservatives to the court. He said conservatism shouldn’t be seen as a partisan label.
“Both of these appointees are true conservatives, and both have the honor and integrity we need to restore trust to our highest court," Justice said. "These men have dedicated their lives to serving the people of West Virginia.
"We've been dismantled in some ways and we've lost some level of confidence and some level of trust," Justice said during his Aug. 25 press conference announcing the appointments. "On a nationwide basis, it's cast a black eye. What we need to do more than anything is repair, move on and show the nation how committed we are as West Virginians to have a solid court and, in my opinion, without any question, a conservative court."
King filed a petition Sept. 10 with the state Supreme Court, naming Warner and Jenkins as respondents. King asks the court to direct Warner to omit Jenkins’ name from the ballot because of the same issues regarding Jenkins’ law license.
“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 Ketchum. King is representing himself in the matter.
Ancil Ramey, counsel for Jenkins, said Schwartz's petition had no merit.
"First, the State Constitution only requires that a candidate for our Supreme Court have been admitted to the practice of law for 10 years and Evan Jenkins has been admitted for more than thirty with over 26 of those years as an 'active' member," said Ramey, who work in Steptoe & Johnson's Huntington office. "Mr. Schwartz’s petition identifies no cases holding that anyone admitted to the practice of law in West Virginia for more than 10 years is ineligible for appointment or election to the Supreme Court because there are none, and many Justices to the Supreme Court have been appointed or elected while previously an 'inactive' member of the State Bar.
"Second, over three years ago, West Virginia joined several other states to make its judicial elections non-partisan. Two seats on the Supreme Court will be filled in November by non-partisan ballot. Other judges have been appointed since 2015 on a non-partisan basis, without challenge, under similar circumstances. The petition identifies no cases holding that only persons of the same party may be appointed to fill vacancies on the Supreme Court because there are none."
Jenkins also noted that West Virginia State Bar bylaws say, "Every judge of a court of record of this state shall be enrolled as an inactive member during his or her continuance in such office."
He said applying the logic of the two complaints, "no judge could run for re-election until they've gone back to private practice for 5 (circuit court judges) or 10 (Supreme Court) years," Jenkins said.
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 in July, 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, Workman, Loughry and Walker.
Davis, Loughry, Walker and Workman all face impeachment trials in the state Senate beginning Oct. 1.
Loughry faces a 25-count federal indictment after the federal grand jury issued another second superseding indictment against him in August. 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.
In addition to Justice’s appointments of Jenkins and Armstead, 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, 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, Charleston attorney William Schwartz, Wheeling attorney Marty "Red Shoes" Sheehan, Charleston attorney Dennise Renee Smith and Boone Circuit Judge William S. Thompson of Madison.
Schwartz is being represented by Teresa Toriseva and Joshua Miller of Toriseva Law in Wheeling as well as Paige Flanigan of Flanigan Law Office in Princeton.
Warner is being represented by Anthony Martin and Thomas Lampman of the West Virginia Attorney General's office. Justice is being represented by Thomas E. Scarr, Michael A. Frye and Nathaniel A. Kuratomi of Jenkins Fenstermaker in Huntington. Jenkins is being represented by Ancil Ramey of Steptoe & Johnson in Charleston. Armstead is being represented by Michael Carey and David Pogue of Carey, Scott, Douglas & Kessler in Charleston.
Workman and Walker already have voluntarily recused themselves from hearing the case. So, Farrell, acting as chief justice in the case, has appointed Circuit Judges Russell Clawges, Timothy Sweeney, Charles Call III and Craig Tatterson to hear the case.
West Virginia Supreme Court of Appeals case number 18-0789