Jenkins, Armstead decry court removal efforts

September 15, 2018
Kenny Kemp/HD Media Tim Armstead (left) shakes hands with Evan Jenkins in Gov. Jim Justice’s office after both were appointed to fill vacancies on the West Virginia Supreme Court of Appeals until state voters make their picks in November’s general election.

CHARLESTON - After a second legal challenge to his candidacy for the West Virginia Supreme Court, U.S. Rep. Evan Jenkins on Thursday called the legal action “desperate, partisan effort” to keep him off the court.

Former state House of Delegates Speaker Tim Armstead, who like Jenkins was appointed to the court last month by Gov. Jim Justice, said the challenge from Charleston lawyer William Schwartz was “legally unfounded.” Schwartz, who is also running for the Supreme Court, filed a petition with the court Thursday seeking to remove Jenkins from the ballot and prohibit him and Armstead from temporarily serving on the court.

Schwartz also said Justice violated West Virginia law by appointing Armstead and Jenkins, both Republicans, to fill the seats vacated by former justices Menis Ketchum and Robin Davis, both elected as Democrats before state judicial races became nonpartisan in 2016.

Ketchum and Davis resigned from the court about a month apart amid impeachment proceedings in the state Legislature.

Schwartz also asserts that Armstead’s appointment violates the emoluments clause because Armstead, as a sitting delegate, voted to investigate and impeach the entire court, which gave him a hand in “creating” the vacancies.

Schwartz’s petition was the second one filed this week that sought to have Jenkins removed from the general election ballot based on the status of his law license during the past 10 years.

Jenkins described Schwartz’s petition and the earlier one, filed by Clay County and former Supreme Court candidate Wayne King, as a “desperate, partisan effort” to keep him from “restoring honesty, integrity and accountability to our state’s highest court.”

“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,” Jenkins said Thursday.

Armstead said he and his attorney were confident in his ability to fulfill his temporary appointment to the court.

“Even prior to the change in the law making judicial races nonpartisan, I believe there was no legal requirement, and there is currently no legal requirement, that a vacancy on the court be filled by a member of the same party as the person vacating the office,” Armstead said.

The former speaker recused himself from presiding over impeachment proceedings in the House because of his stated interest in running for a Supreme Court seat. House Speaker Pro Tempore John Overington, R-Berkeley, ruled that Armstead had to vote on impeachment matters after Armstead requested to be excused from voting on the matters.

“I took important steps to ensure that proceedings in the House of Delegates were handled ethically and properly, including stepping aside from presiding in the House over the impeachment proceedings,” Armstead said.

Armstead noted that Ketchum resigned prior to the start of the House Judiciary Committee’s investigation into whether to impeach the court, meaning Ketchum wouldn’t be impeached under the rules of procedure adopted by the committee.

House Minority Whip Mike Caputo, D-Marion, sent a letter to Justice on Thursday urging him to call a special session for Ketchum’s impeachment after the Senate refused to halt impeachment proceedings against Davis, who like Ketchum has resigned.

Schwartz initially planned to file his petition in Kanawha Circuit Court, but he said he and his attorneys determined the Supreme Court was the proper venue for the case.

Ketchum, elected in 2008, announced his resignation from the court on July 11, the day before impeachment hearings began in the state House. His retirement was effective July 27.

Davis, who first was elected to the court in 1996, announced her departure Aug. 14, one day after the House voted to impeach her, Chief Justice Margaret Workman, Justice Beth Walker and suspended Justice Allen Loughry. Her retirement was effective Aug. 13.

In their petitions, Schwartz and King argued Jenkins wasn’t qualified for the court because his law license wasn’t active for the 10 years immediately prior to the 2018 election.

Jenkins was admitted to the West Virginia State Bar to practice law in 1988. He voluntarily made his law license inactive with the state bar in 2014, when he was elected to the U.S. House of Representatives. He changed his status with the bar back to “active” on Aug. 9.

He remained an inactive member of the state bar during that time, which, according to the bar’s bylaws, means a person remains a member of the bar and admitted to practice law, but they don’t take on clients or provide other legal services in the state. They also continue to pay dues to the bar.

Jenkins’ attorney, Ancil Ramey, defended his client’s legal experience earlier this week.

“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 30,” Ramey said. He said the Judicial Vacancy Advisory Commission had determined Jenkins to be one of the best-qualified people to fill one of the vacancies on the court.

Jenkins has not yet resigned from his U.S. House seat. His office put out a statement saying he would resign once a date was set to swear him in to office on the Supreme Court.

Once that happens, West Virginia’s 3rd Congressional District will be without a representative until the winner of the November election between Democrat Richard Ojeda and Republican Carol Miller takes office in January 2019.

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