Supreme Court challenge set for Monday

PARKERSBURG — Arguments will be heard Monday before the West Virginia Supreme Court on the challenges to the qualifications of two people on the high court.

Wayne King of Clay County and William K. Schwartz of Kanawha County, both attorneys, have challenged U.S. Rep. Evan Jenkins’ eligibility to be on the ballot and the appointments of Jenkins and former House Speaker Tim Armstead by Gov. Jim Justice on Aug. 25 to the vacancies created with the resignations of Menis Ketchum and Robin Davis.

The appointments are effective until the special election to fill the vacancies in November. King applied for a vacancy and Schwartz has filed for the special election.

The petitions, combined by the court, say Jenkins hasn’t met the constitutional requirement of practicing law and that Armstead is disqualified because of the emoluments clause in the Constitution in that he voted for a resolution to investigate justices in the deliberations for the articles of impeachment.

Also cited was party affiliation as Ketchum and Davis were Democrats and Jenkins and Davis are Republicans, although the election for the court has since been made non-partisan.

The House approved the articles of impeachment against Judges Margaret Workman, Beth Walker, Davis and Allen Loughry, who was earlier suspended without pay. Ketchum resigned in July and Davis resigned the day after the articles were approved in August.

Impeachment trials start in October in the Senate.

Workman and Walker have voluntarily recused themselves from hearing the King and Schwartz petitions. Acting Chief Justice Paul T. Farrell assigned Judges Russell M. Clawges on Monongalia County, Timothy L. Sweeney of Pleasants County, H. Charles Carl of Hampshire County and R. Craig Tatterson of Mason County to hear the case.

Arguments will be heard 10 a.m. Monday.

Jenkins, Armstead and Justice also have filed responses to the petitions, saying the appointments are allowed by law and the Constitution.

In the governor’s response, attorneys said the emoluments clause doesn’t apply because the Legislature did not increase the salary or create a new position. No constitutional requirement exists that the appointee to a vacancy on the court be of the same party of the departing justice, the response said.

The petitions illogically argue because Ketchum and Davis were elected prior to the change to non-partisan election, “their seats on the court somehow remain partisan after their resignations,” the response said.

“This result not only defies logic, particularly when the general election in less than two months away will be a non-partisan election where affiliation will not matter, but it would improperly inject additional language in the provisions governing the filling of judicial vacancies,” the governor’s response said.

Also, there is no constitutional or legal requirement that the governor fill a vacancy on the Supreme Court with an attorney whose membership on the state bar has been active and has been actively engaged in the practice of law during the 10 years preceding the appointment, the response said. Jenkins has been and is admitted to practice law in the state regardless of the period of time he was an inactive member.

Jenkins voluntarily became inactive upon entering the U.S. House of Representatives. His status changed to active Aug. 9 before filing for the special election to fill the vacancies.

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