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Judicial Vacancy Advisory Commission Selected Acting West Virginia Supreme Court Justices

CHARLESTON — As they and 18 other candidates await voters’ decisions, a question remains: How did Tim Armstead and Evan Jenkins wind up becoming justices for the West Virginia Supreme Court of Appeals?

Just a few months ago, both were serving in very different capacities. Armstead was speaker of the West Virginia House of Delegates. Jenkins was a member of the U.S. House of Representatives, representing the state’s Third Congressional District.

Then scandal struck the state Supreme Court. Two justices, Menis Ketchum and Robin Davis, resigned. That required Gov. Jim Justice to appoint new justices to replace them, until an election could be held. The two high court positions will be on the ballot next Tuesday. Jenkins and Armstead are among 20 candidates seeking the two spots.

Armstead and Jenkins were appointed to interim positions on the court, pending the election. That came about through work by the Judicial Vacancy Advisory Commission.

New Way to Select Justices

The Judicial Vacancy Advisory Commission is a relatively new institution. Article 8 section 7 of the West Virginia Constitution gives the governor the authority to appoint justices and judges when vacancies occur. State Code 3-10-3 gives the governor specific requirements when to call a special election to fill the remainder of a judge or justice’s term.

In 2010, the West Virginia Legislature passed House Bill 4036, adding a new section to state code creating the Judicial Vacancy Advisory Commission. The commission was established to assist the governor in making appointments to judicial vacancies.

According to state code, the commission consists of eight members. Four are members of the public appointed by the governor with consent of the Senate. The other four appointees are attorneys selected by the West Virginia State Bar’s Board of Governors. Commission appointees serve staggered six-year terms and no more than four can be members of the same political party. Three other people — the governor, president of the West Virginia Bar and the dean of the West Virginia University College of law — are ex-officio, or non-voting members.

When a vacancy occurs, the commission has 90 days from the time of the vacancy — or formal announcement of resignation submitted to the governor — to submit a list of between two and five qualified replacements. Starting when the commission submits nominees, the governor has 30 days to make an appointment. If he doesn’t get a list of nominees within 30 days after the vacancy, he can also go ahead and name an appointment.

On Oct. 25, Justice reappointed Raleigh County Commissioner Byrd White and attorneys Debra Scudiere and Susan Brewer — both of Monongalia County — to terms ending in 2024. Other members include Kanawha County Commissioner Kent Carper, Cabell County attorney Bert Ketchum (son of Menis Ketchum), former AFL-CIO president Kenny Perdue, Charleston attorney Steve Robey and Don Wagenheim, of Wheeling.

From Legislation to Reality

The 90-day countdown began the day Justice received Ketchum’s letter of resignation. That was July 11.

“I have directed my general counsel to provide the necessary documentation to the Judicial Vacancy Commission and other state agencies as may be appropriate to fill this vacancy created by Justice Ketchum’s resignation,” Justice said.

Ketchum resigned July 27 just days before agreeing to plead guilty in federal court to a count of wire fraud for use of a state vehicle and fuel card, for which he will be sentenced Jan. 30. Davis resigned Aug. 14 after being impeached by the House of Delegates.

The day after Davis resigned, the commission released the names of nine applicants who applied for Ketchum’s seat: Armstead; Jenkins; Robert Carlton, of Williamson; Gregory Chiartas, of Charleston; Robert Frank, of Lewisburg; Arthur King, of Clay; D.C. Offutt Jr., of Barboursville; William Schwartz, of Charleston; and Martin Sheehan, of Wheeling. The commission put a deadline of Aug. 22 for applications for Davis’ seat, and held interviews Aug. 23 and 24 for both seats.

The evening of Aug. 24, the commission released the names of nine nominees to fill in for Ketchum and Davis: Armstead was nominated to succeed Ketchum, as well as Frank, Offutt and as Stephen Crislip, of Charleston. Jenkins was nominated to replace Davis, along with Chiartas, Schwartz, James Flanagan, of Charleston, and Sheehan.

The next day, Aug. 25, Justice held a press conference and appointed Armstead and Jenkins.

“Both of these appointees are true conservatives, and both have the honor and integrity we need to restore trust to our highest court. These men have dedicated their lives to serving the people of West Virginia,” Justice said.

Armstead and Jenkins had a 20-day window before being seated as justices in case of an objection. Those objections came in the form of petitions brought by King and Schwartz. Schwartz is also a candidate for Division 2. King and Schwartz challenged the eligibility of Jenkins to be on the Nov. 6 ballot because Jenkins made his state law license inactive while he served in Congress for four years. Schwartz also challenged the eligibility of Jenkins and Armstead to sit as temporary justices on the bench until the November elections.

A five-member panel of circuit judges temporarily appointed to the court ruled Sept. 24 against the petitions. Armstead was sworn in the next day, while Jenkins was sworn in a week later.

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