CHARLESTON— A fill-in state Supreme Court has ruled Third District Congressman Evan Jenkins and former House of Delegates Speaker Tim Armstead are eligible for appointment to the state Supreme Court. Both will also be on the ballot in the upcoming Nov. 6 General Election.
The ruling came less than two hours after the case was argued Monday morning before the High Court that included acting Chief Justice Paul Farrell and four county circuit court judges.
Jenkins called the decision a victory for those who want to put a stop to wasteful spending and and misuse of taxpayer dollars.
“Everyone saw these bogus lawsuits for what they were, partisan attacks trying to deny the voters the opportunity to elect a new justice that’s going to uphold the constitution and apply the law equally and fairly to each and every West Virginian I appreciate the court’s quick decision that now clears the way for me to get to work right away restoring the public’s trust and confidence on our state’s highest court that the citizens expect and deserve,” Jenkins said in a statement.
At the beginning of Monday’s arguments, Chief Justice Farrell immediately challenged Clay County attorney Wayne King on his assertion that Jenkins is not qualified to serve on the Court.
“Mr. King, how is it that you did not file an action to take the three circuit judges who are running for this office also out? We are all inactive members of the bar,” Farrell said moments after King had started his argument.
King and Charleston attorney William Schwartz contended the decision by Jenkins to put his law license on inactive status during the last four years during his time in Congress made him ineligible to serve on the Court or run for the office in November.
The 90-minute argument came about after Gov. Jim Justice’s Aug. 25 appointments of Jenkins and Armstead to serve during the Court’s fall term, filling open seats created by the resignation/retirements of former justices Menis Ketchum (Armstead) and Robin Davis (Jenkins).
The state Constitution requires a Supreme Court justice to be admitted to the bar in West Virginia for 10 years prior to being on the Court. King and Wheeling attorney Teresa Toriseva, representing Schwartz, argued the word prior means immediately prior, making Jenkins ineligible. He was admitted to the bar in 1988.
“Why didn’t the drafters of the Constitution just put immediately prior?” Monongalia County Circuit Judge Russell Clawges, sitting as one of the justices, asked Toriseva.
Toriseva cited case law in West Virginia and a few cases from other states that indicate a lawyer be an active member of the bar.
“The requirements to be a Supreme Court Justice are high and higher than any other office,” she said. “In this case, due process demands very high standards of jurisdictional competence. The jurisdictional competence comes from recency.”
Toriseva argued Jenkins hasn’t represented any clients for four years and hasn’t attended any continuing education classes that are required of attorneys.
She added if the Court allows the appointment of Jenkins to be political and ignores the aspect of the competentence that’s required they would create “absurd scenarios in the future.”
Farrell and Clawges both compared Jenkins being inactive to circuit judges who are also classified as inactive when they are elected to the bench. Toriseva said it’s different.
“Circuit court judges are not the same as those who voluntarily place their license on inactive status. Mr. Jenkins did not have to do that,” she said.
Clawges told Toriseva essentially what she is asking the Court to do is to rewrite the the provision to require someone who is not a circuit judge to meet a higher standard when it comes to being on the High Court.
Ancil Ramey, arguing on behalf of Jenkins, said over the years state lawmakers have been specific when is comes to qualifications for certain offices and programs. He cited three amendments to the state Constitution and 170 statutues that say “immediately prior.”
“If you want to say immediately prior or preceding you say that. If you don’t it’s only prior,” Ramey said. “My client has been admitted to the practice of law for 30 years. The idea that you go on inactive status and serve the citizens of this state in Congress and somehow you are disqualified because you go on inactive status, as the Montana Supreme Court said inactive doesn’t mean unadmitted to practice of law it’s just his status.”
In the case against the Armstead appointment, Toriseva, arguing for Schwartz, said the appointment violated state law that prevents a member of the legislature from being appointed to any other office that’s been created or there’s been a pay change during the legislator’s term in office.
“He didn’t create this position,” Farrell told Toriseva. “This position’s existed since 1872 and there were two resignations. The impeachment maybe it forced or preempted or whatever word you want to use–but Justice Ketchum clearly resigned before the impeachment and Justice Davis resigned immediately effective the day of the impeachment.”
Armstead’s attorney, Mike Carey agreed.
“The fact of the matter is that he did nothing to create the vacancy. The vacancy occurred due to a resignation. And that resignation occurred due to the conduct that Justice Ketchum engaged in, which ultimately well before any vote on impeachment he submitted a resignation,” Carey said.
The Court spent several minutes Monday questioning Gov. Justice’s comments the day he made the appointments back on Aug. 25. Justice said he was appointing conservative Republicans who would restore integrity to the Court.
“Our governor has for whatever reason chosen to turn this process, that should be non-partisan into a political process by publicly announcing that he is appointing Republicans to seats that were held by Democrats with conservative Republicans and that they should be elected,” Clawges said.
A deputy state attorney general representing Secretary of State Mac Warner told the Court time is of the essence because absentee ballots are already being mailed out to some voters. A certain decision on the Jenkins case could prevent him from being a candidate in November.
In it’s one page order, the Court said it found “there is no clear right to the relief sought by the petitioners.”
