Panel rules in favor of Armstead, Jenkins

CHARLESTON — An all-appointed panel of Supreme Court justices ruled Monday on whether to allow the appointments made by Gov. Jim Justice to the high court and whether one of those candidates was qualified to run in the November special election.

U.S. Rep. Evan Jenkins, R-W.Va., and former Republican House of Delegates Speaker Tim Armstead can now be seated as replacement justices on the West Virginia Supreme Court of Appeals until November, and Jenkins will remain on the ballot in a 10-person special election.

A five-member panel of circuit judges temporarily appointed to the Supreme Court to hear the petitions filed an order Monday afternoon, ruling against the petitions filed by Clay County attorney William King and Charleston attorney William Schwartz.

“The court is of the opinion that these matters should be dismissed as improvidently granted inasmuch as, after mature consideration of the matter presented the court finds there is no clear right to the relief sought by the petitioners,” the order said.

King, a former nominee by the Judicial Vacancy Advisory Commission for one of two spots on the West Virginia Supreme Court of Appeals, and Schwartz, a candidate in the special election for one of the court’s empty seats, filed suit last week.

Both King and Schwartz challenged the eligibility of Jenkins to be on the Nov. 6 ballot. Schwartz also challenged the eligibility of Jenkins and Armstead to sit as temporary justices on the bench until the November elections.

Armstead and Jenkins were appointed by Justice Aug. 25 but couldn’t take office until these cases were decided. Armstead was appointed to fill former justice Menis Ketchum’s vacancy after Ketchum resigned in July, a week before being indicted by federal officials. Jenkins was appointed to fill former justice Robin Davis’ vacancy after she resigned in August after being impeached by the House of Delegates.

Acting Chief Justice Paul Farrell was joined in hearing the case by Monongalia County Circuit Judge Russell Clawges, Pleasants County Circuit Judge Timothy Sweeney, Hampshire County Circuit Judge H. Charles Carl, and Mason County Circuit Judge R. Craig Tatterson. Chief Justice Margaret Workman and Justice Beth Walker — both facing impeachment trials in the state Senate — recused themselves from the case.

On ballot access, King and Teresa Toriseva, counsel for Schwartz, argued that Jenkins isn’t qualified for the Supreme Court because he put his law license on inactive status in 2014 when he took office as a congressman. Prior to this, Jenkins had maintained his law license for 26 years.

“I only cared about Evan Jenkins and his lack of experience and lack of education and training to be a justice of this Supreme Court,” King said. “Mr. Jenkins, by his own words and acts, voluntarily left the practice of the law for four years, and that was prior to his even being considered for justice of the West Virginia Supreme Court of Appeals.”

“This isn’t about individuals, punishment, or intent,” Toriseva said. “I don’t believe once you’re qualified (to be a lawyer) you’re qualified for life. I believe that that qualification can come and go. Mr. Jenkins could again be qualified after the (10-year) time lime is met.”

The acting justices were skeptical about King and Toriseva’s argument that an inactive law license was disqualifying enough, as the individual is still admitted to the bar. Clawges pointed out to the plaintiffs that the law licenses for judges and justices also go on inactive status while they’re serving on the bench.

“Technically, if we take your reading of this requirement, none of us are eligible,” Clawges said of himself and fellow acting justices. “Probably a portion of the court was not eligible when they were elected. We’ve chosen to further our profession of being trial judges. Congressman Jenkins has chosen to be a public servant and become a member of the House of Representatives and chose — I don’t even think he had to — to let his law license go inactive for those four years. As a policy matter, do you punish him for that?”

In the second part of her case, Toriseva argued that the emoluments clause — which prohibits benefiting from public office — prohibits Armstead from being appointed because at some point during his legislative career he voted for pay raises for the judiciary. Toriseva also argued that Armstead directly benefits from the vacancy because he voted in favor of starting the impeachment process, even though Ketchum was never impeached or charged with articles of impeachment.

“During Mr. Armstead’s term, this vacancy was created because in an unprecedented and historic move, the legislature initiated impeachment proceedings in June against the entire court,” Toriseva said.

“Menis Ketchum was not impeached,” Farrell said, cutting off Toriseva. “He resigned. He created the vacancy.”

“He resigned under an investigation which had already begun regarding impeachment,” Toriseva said.

“That’s debatable, because he was also under investigation by federal authorities,” Clawges said.

Lastly, Toriseva argued that since Ketchum and Davis were elected as Democrats before the legislature made judicial elections non-partisan, that Justice was obligated to appoint two Democrats, even though the special election in November to replace Ketchum and Davis is non-partisan.

“(Justice) was vocal he was appointing conservative Republicans to the court, no bones about that,” Toriseva said. “Because he did that, and those two seats were elected as Democrats, you now have a situation where the voters elected a governor and two justices — all Democrats — and all three are Republicans through the power of appointment, not by election.”

“We might sit here and entirely agree with you that the governor has handled this situation poorly,” Clawges said. “It could not be handled any worse from the standpoint of the crisis this state is in politically and constitutionally — but it’s within (Justice’s) power.”

Besides Armstead, Jenkins and Justice, Secretary of State Mac Warner was named in the petitions as the chief elections officer. Sept. 21 was the deadline for county clerks to have ballots printed and delivered to the counties to send to absentee voters. According to Assistant State Attorney General Anthony Martin, representing the Secretary of State’s Office, counties have already mailed out more than 2,300 absentee ballots as of Monday morning.

Armstead said he was pleased with the decision and that it was the correct interpretation of the Constitution.

“From the date the challenge to my appointment was filed, I have felt it was entirely unfounded and was simply designed to delay my ability to serve on the court,” he said. “I look forward to taking the oath of office and getting to work during the fall term to help restore confidence, integrity and fiscal responsibility to our state’s highest court.”

Jenkins also issued a statement, saying it was a victory for “every West Virginian who’s ready to put a stop to the wasteful spending and misuse of taxpayer dollars.”

“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,” he said. “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.”

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