Court Rules in Favor of West Virginia Governor Jim Justice’s Appointments

CHARLESTON — An all-appointed panel of 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 be seated now 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 Supreme Court, and Schwartz, a candidate in the special election for one of the court’s empty seats, filed suit last week.

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 Aug. 25 by Justice but couldn’t take office until the cases were decided. Armstead was appointed to fill former Justice Menis Ketchum’s vacancy after he 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. 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 Wheeling attorney 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 that, Jenkins had maintained his law license for 26 years.

“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 qualifications can come and go. Mr. Jenkins could again be qualified after the (10-year) timeline 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.

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.

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

“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.

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.”


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