CHARLESTON, W.Va. (AP) — Two Republican politicians will serve as temporary justices on the West Virginia Supreme Court after a group of judicial stand-ins on Monday rejected petitions challenging their appointments to replace two departed justices.
The court turned back challenges by two lawyers to the appointments of U.S. Rep. Evan Jenkins and ex-House speaker Tim Armstead. The court said “there is no clear right to the relief sought.”
The actions come as the state’s high court has been roiled by impeachments and resignations.
Democrats have called the impeachments of four justices an unprecedented power grab by the West Virginia GOP. One of the petitions heard Monday said the choice of Jenkins and Armstead violated “the clear will of the voters” who elected Democrats to their spots on the bench.
Also on the November ballot is attorney William Schwartz, whose petition sought to stop Jenkins and Armstead from temporarily serving on the court. His petition asserted Jenkins was ineligible because he hasn’t actively practiced law recently. The state constitution requires justices to be admitted to practice law for at least 10 years prior to their election.
A second petition, filed by attorney Wayne King and heard by the court Monday, also challenged Jenkins’ name on the Nov. 6 ballot on the same 10-year grounds. King lost a 2016 race for the Supreme Court seat won by Beth Walker and had sought the temporary seat given to Armstead. King did not immediately respond to a request for comment.
Jenkins and Schwartz are among 10 candidates seeking to serve the remainder of retired Justice Robin Davis’ term through 2024, while Armstead and nine others hope to finish the term of retired Justice Menis Ketchum through 2020. Both Davis and Ketchum were elected as Democrats. Supreme Court elections were changed to nonpartisan in 2016.
Ketchum resigned before the Republican-led House voted to impeach the remaining four justices. Davis then resigned in time to trigger an election for the remainder of her term. Davis and three others await Senate impeachment trials next month: Allen Loughry, who is suspended, and Margaret Workman and Walker, who recused themselves from hearing these petitions.
Temporary Chief Justice Paul T. Farrell then appointed circuit judges Russell Clawges, Timothy Sweeney, Charles Carl and Craig Tatterson to hear the challenges.
According to Schwartz’s petition, Jenkins voluntarily placed his West Virginia law license on inactive status in 2014 after he was elected to the U.S. House. But Jenkins said he’s been admitted to practice law in the state for more than three decades. According to the bylaws of the State Bar, an inactive status means members are admitted to practice law but aren’t taking clients or providing legal counseling.
During Monday’s hearing, Clawges questioned whether Jenkins should be punished for essentially becoming a congressman and not practicing law.
“If you allow this to be political appointments and political favors … and ignore the aspect of the job and the competence that’s required, you’re going to create absurd scenarios in the future,” attorney Teresa Toriseva, representing Schwartz, told the court.
Armstead said the challenge to his candidacy was “legally unfounded.” He said he was an in-house counsel for a natural gas company from 2001 to 2016 and remains licensed to practice law. He did not serve with a law firm his last two years as House speaker.
Noting Schwartz’s candidacy for the same seat in November, Jenkins said the petitions “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.”
The impeachment case targets spending on renovations to the justices’ offices that raised questions about corruption, incompetence and neglect of duty.
Schwartz’s petition also argued that Armstead’s vote in June on a House resolution to investigate all members of the Supreme Court for impeachable offenses helped create the court’s vacancies. The state constitution bars existing delegates from being appointed to a state office that has been created. The temporary justices pointed out Monday that Armstead did not create the office itself.
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