From David Beard, The Dominion Post
MORGANTOWN, W.Va. — A candidate for the state Supreme Court seat Rep. Evan Jenkins has been appointed to and is running for has filed a lawsuit to have Jenkins tossed off the ballot.
The candidate also wants Jenkins and Former House Speaker Tim Armstead tossed from their appointed interim Supreme Court seats. This was the second petition filed against Jenkins this week.
Meanwhile. Delegate Mike Caputo, D-Marion, has sent a letter to the governor seeking a special session to consider impeachment of former Justice Menis Ketchum.
Charleston attorney William Schwartz filed his suit with the state Supreme Court on Thursday. Gov. Jim Justice, Secretary of State Mac Warner, Jenkins and Armstead are defendants.
Schwartz is a candidate for the open seat of impeached former Justice Robin Davis, who resigned Aug. 13 but waited a day – until after the House acted on all the proposed articles of impeachment – to announce it. Schwartz was also on the list of potential appointees to the interim seat.
Jenkins is a candidate for the same seat. Justice appointed him to fill the seat until a replacement can be elected and take office.
Schwartz contends in his suit that Jenkins is not qualified to hold the seat or run for it because state law requires the candidate to have been admitted to practice law for at least 10 years. While Jenkins was admitted to the Bar in 1988, he hasn’t actually practiced law since 1999; and in 2014 he placed his law license on inactive status while serving in Congress.
Jenkins didn’t reactivate his law license, Schwartz says, until Aug. 9, in order to run for the court.
Schwartz contends that the law requires 10 years of consecutive practice prior to running for the Supreme Court, not 10 years of cumulative practice.
Regarding Armstead, Schwartz acknowledges he stepped down from the speaker’s podium during the impeachment proceedings because he planned to run for the court and wanted to avoid any appearance of conflict of interest, and subsequently resigned to run for the court.
However, Schwartz says, Armstead voted yes on the resolution to investigate all the members of the court for impeachable offenses. This violates the law that forbids a delegate from being appointed to an office created during his term.
By voting to initiate impeachment, Schwartz says, Armstead played a role in creating the office — which was held by former Justice Menis Ketchum — that he is now running for. Ketchum resigned July 27 and on July 31 pleaded guilty to one federal felony count of wire fraud for improper use of a state fuel card.
Schwarz acknowledges that the law doesn’t preclude Armstead from running for the seat.
But Schwartz makes one more contention. Both appointments are illegitimate, he says, because Ketchum and Davis were elected as Democrats before the 2015 law creating nonpartisan judicial elections took effect. Justice wrongly applied that law retroactively to appoint Republicans and thwart the will of the voters.
On Monday, Clay County attorney Wayne King filed a petition with the Supreme Court seeking to have Jenkins tossed from the ballot. Warner and Jenkins are defendants. King similarly contends that Jenkins isn’t qualified because his law license was inactive for the four preceding years.
According to reports, King sought to be considered for the appointment Jenkins received. But he was not among the four names on the list provided to Justice by the Judicial Vacancy Advisory Commission. He also is not a candidate for either seat.
Jenkins’ attorney Ancil Ramey supplied a statement saying the suit has no merit. Jenkins was admitted to the bar for more than 30 year s and was active for 26. “Many Justices to the Supreme Court have been appointed or elected while previously an ‘inactive’ member of the State Bar.”
Regarding the Democrat/nonpartisan question, Ramey says other judges have been appointed since 2015 under similar circumstances without challenge. “The petition identifies no cases holding that only persons of the same party may be appointed to fill vacancies on the Supreme Court because there are none.”
Ramey concludes, “I am confident that the Supreme Court will reject both Mr. Schwartz’ and Mr. King’s meritless petitions so that the voters, and not those who seek to preempt them, can choose if they so desire someone like Evan Jenkins who is both fully eligible and well-qualified to serve as Justice of the Supreme Court of Appeals of West Virginia.”
Armstead also provided a statement: “I and my counsel firmly believe this effort to block my appointment to the court is legally unfounded and we are confident in my ability to fulfill the appointment. “
Armstead said there has never been a legal requirement that a court appointee be filled by a member of the same party as the person who left office.
“In addition, 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 also points out that Ketchum wasn’t impeached. Ketchum resigned before the House voted to adopt articles of impeachment. “I feel strongly that there is no constitutional or legal bar to my appointment and I am both professionally and legally qualified to serve the people of our state on the court.”
Caputo said in his letter to Justice that the House initially focused on impeaching only sitting justices and so left Ketchum out.
But the Senate’s recent action regarding Davis raises the question of Ketchum. The Senate declined to dismiss charges against Davis so that they could consider the facts and, if necessary, bar her from returning the bench as a senior status judge or holding any other office of public trust.
Caputo writes, “In my opinion, former Justice Ketchum’s admission of guilt to a federal charge of wire fraud most certainly rises to the level of an impeachable offense. As such, the Legislature has a duty to ensure that former Justice Ketchum no longer profits at the expense of the taxpayer – especially in the form of his retirement compensation.”
New House Speaker Roger Hanshaw declined comment. However, his office pointed out that Ketchum’s federal felony conviction precludes him – per state code – from running for office, returning to the bench or receiving retirement pay.