CHARLESTON – The television ads haven’t ran for nearly two months, but they won’t seem to go away.
In mid-May, state Supreme Court candidate Jim Douglas’ campaign ran a 60-second television ad critical of the courtroom experience of three of the five current justices.
Following the first appearance of the ad, Justice Evan Jenkins contacted Douglas about the ad, questioning some of the statements about experience. After being contacted by the state Judicial Investigation Commission, Douglas ran a retraction.
Douglas
But Douglas did take issue with Jenkins contacting him about the ads. He said that was because Jenkins wasn’t up for re-election and that Jenkins used his official court email account to contact him about the ads.
For a June 5 story for The West Virginia Record, Jenkins said he wasn't the one who first contacted the state Judicial Investigation Commission about the ads.
“I’m not sure who first brought this to the attention of the JIC, it wasn't me,” he said. “So I don't know if it's still being investigated or not. I’ll let Judge Douglas and the JIC sort things out.”
Douglas said Jenkins emailed him at 10:41 p.m. May 14 from his court email account. The Record filed a Freedom of Information Act request to examine the exchange.
Now, The Record has obtained other emails from Jenkins to JIC general counsel Teresa Tarr timestamped at 8:47 a.m. May 15. Jenkins had forwarded his email exchange with Douglas to Tarr then. Less than an hour later at 9:39 a.m., Jenkins sent Tarr another email with more of his exchange with Douglas. “Update on the latest,” Jenkins told Tarr in the second email.
On July 13, Jenkins reiterated that he did not contact the JIC first about the Douglas ads.
“Again, as I stated before I did not initiate contact with the JIC about Douglas’ campaign ad, the JIC contacted me,” Jenkins told The Record. “Apparently, at the same time I was emailing my concerns directly with Douglas, the JIC was looking into the ad as well.
“When the JIC contacted me and asked about the ad’s claims, I told them I had had an email exchange about the ad with Douglas. The JIC asked me to send them the emails and I did. Ultimately the Douglas campaign stopped running the ad and ran a new ad apologizing for the prior ad’s misstatements.”
Douglas also commented on the emails between Jenkins and Tarr.
“Those emails show there was ongoing contact between him and the JIC,” Douglas told The Record on July 13. “The emails themselves don’t bear out his version of the events. One could conclude the emails contradict Justice Jenkins’ account.”
Douglas’ campaign ran the 60-second ad on WSAZ-TV in the Huntington-Charleston market. It touted Douglas’ 44 years of experience as a family attorney and a family court judge and why he believes having that experience is important to have represented on the state Supreme Court.
“Do you know that there are three justices sitting on the Supreme Court who have never cross-examined a witness?” the ad continues. “Never picked a jury? Never argued a case to the Supreme Court they now sit on?
“Moreover, there are four justices and most candidates for the Supreme Court who have never tried a grandparents’ rights case.”
Two days after the ad first aired May 12, Douglas said he was contacted by Tarr following an informal anonymous complaint.
“She said I had made a false statement in the ad,” Douglas recalled of his talk with Tarr. “I told her to tell me which one was false so I could apologize for it.”
Douglas said Tarr told him to pull the ad and to run a retraction in the same time periods the ads had appeared.
“My response was, and still is, to ask what was wrong with the ad, and I’ll fix it,” Douglas told The Record in May. “She wanted to approve my apology before I sent it down to WSAZ. That was part of her deal with me. I refused. I didn’t say anything about their credentials. I believe two or three don’t have the practical experience to sit on the state Supreme Court.”
Douglas did say he ran a retraction.
“If 95 percent of my ad is true, why do I have to apologize for telling the truth?” Douglas said.
In the retraction ad, Douglas said he had been told by Supreme Court officials the statement about three justices not arguing a case before the Supreme Court, picking a jury or cross-examining a witness was untrue.
"This was never a question about whether or not those members are qualified to sit on the bench," the ad stated. "They meet those statutory qualifications. Instead, it was about my bringing my own extensive experience of being a courtroom lawyer and now a family court judge to the Supreme Court.
"When an honorable man is wrong, he admits it. So, I apologize for my unintentional misstatements."
Tarr said she couldn’t respond to questions and the FOIA request.
Last month, Jenkins told The Record he wasn’t the one who contacted the JIC.
“I’m not sure who first brought this to the attention of the JIC, it wasn't me,” he said. “So I don't know if it's still being investigated or not. I’ll let Judge Douglas and the JIC sort things out. …
“I do appreciate Judge Douglas’ decision to stop running the campaign ad that contained false statements, his follow-up ad admitting his mistake and apologizing for it. Apology accepted.”
But after Jenkins’ response, Douglas told The Record he did not apologize.
“I only retracted a collective adjective of ‘three,’” Douglas said last month, referring to the ad’s statement about the experience of three of the five current justices. “I still believe he (Jenkins) doesn’t have the experience credentials to be a Supreme Court justice.
“And, I never apologized to him. So, he can say I apologized if he wants to, but that’s totally inaccurate. Nobody issued an apology, nor is one forthcoming from me because I told the truth about his lack of experience anyway.”
Douglas said Jenkins emailed him at 10:41 p.m. May 14 from his official court email account. The Record filed a Freedom of Information Act request to examine the exchange.
“Jim … I saw your ad this evening on WSAZ where you make factual claims about the Justices’ experience,” Jenkins’ email to Douglas begins. “Please let me know who the three Justices are you reference. If you are including me, your claims are not true and I take great offense at your efforts to disparage the reputation of the Court. And if I am not included in the three you reference and you cannot prove three other Justices do not have the experience you claim, I insist the ad be taken down immediately and that you issue a public apology for your false, deceptive and misleading ad.”
Douglas responded three hours later.
“Evan: For my edification, did you ever cross examine a principal witness in a trial, did you ever pick a jury as lead counsel in a trial, did you ever argue a case to the WV SCT as first chair, did you ever present an indictment to a state grand jury? If you have done so, please advise. Incidentally, I have done all of the foregoing.”
Jenkins replied at 7:17 a.m. the next morning.
“Jim: since you are now questioning me about my experience I can only assume you’ve included me as one of the three,” the justice wrote. “As I said before, if you are, the ad is false. How can I be more clear. In fact, my legal experience including the civil and criminal cases I’ve personally handled is a matter of public record in my application to the (Judicial Vacancy Advisory Commission). You have a responsibility to make sure your statements are accurate and truthful. Again, please identify by name the three justices you are referring to in your ad?”
Douglas again responded a short time later, saying the ad in question was scheduled to run only four more times and asked Jenkins if he wanted to generate controversy before providing a list.
That list noted that Jenkins is a public figure, is not mentioned by name in any ad and isn’t a candidate in the same division as Douglas.
Douglas also asked Jenkins if can show liability and injury based on the ad, also saying Jenkins could demonstrate “no intent or maliciousness on my part to harm you personally.”
“Your unusual attempts as a sitting justice to privately lecture me on obligations, to make demands of me, or otherwise to intimidate me through unofficial channels could be construed as an attempt to advance the political fortunes of another candidate in the race,” Douglas wrote. “Any public dispute about this race would not center on me, but the focus would ultimately be upon your alleged experience or inexperience (to which you seem strangely sensitive) versus my First Amendment rights.
“There would be some inevitable negative publicity about a justice trying to ‘bully’ a lowly family court judge.”
Twenty minutes later, Jenkins responded again.
“Jim: who are the three?”
Six minutes later, Douglas replied.
“Evan: Did you ever argue a case as first chair to the very Supreme Court on which you now sit?” he asked Jenkins. “If not, what is your complaint? If so, then what is your complaint?”
Jenkins replied to that email 17 minutes later.
“Jim: I can see you are unwilling to tell me who you are referring to in the ad,” Jenkins wrote. “I have said now repeatedly that if you are including me, the ad is false. I will not engage in a back and forth.”
The email exchange apparently ends there.
No other emails regarding Douglas’ ad were part of response to The Record’s FOIA request.
“I make mistakes, but I don’t bully,” Douglas said. “And no one is going to bully me. And that’s what I perceived it (the emails) to be.”
Douglas did not win a seat on the Supreme Court in the June 9 primary. He finished fourth
Douglas told The Record he researched for any cases either Jenkins or Chief Justice Tim Armstead had argued in front of the state Supreme Court. He said he found nothing. That issue was brought up in 2018 when Gov. Jim Justice appointed the two and later ran to fill those terms.
When Jenkins was appointed, Charleston attorney Bill Schwartz challenged it and claimed Jenkins was ineligible because his law license was inactive from 2014 to 2018 when he served in the U.S. House of Representatives.