CHARLESTON, W.Va. (WCHS/WVAH REPORTS) — A Charleston attorney has filed a petition with the West Virginia Supreme Court, seeking to block Evan Jenkins and Tim Armstead from being appointed to fill two vacant seats on the court and to remove Jenkins’ name from the ballot in November.
Attorney William Schwartz of Charleston, a candidate for the six-year term on the court, filed the petition Thursday. The petition is filed against Jenkins, Armstead, West Virginia Gov. Jim Justice and Secretary of State Mac Warner.
On Aug. 25, Justice appointed Armstead and Jenkins to fill vacancies created by the retirements of Menis Ketchum and Robin Davis as justices. They would serve in those posts until new justices are chosen in the Nov. 6 General Election.
Armstead is a candidate for the two-year term left vacant by Ketchum’s retirement, and Jenkins is a candidate for the six-year term left vacant by Davis’ retirement. A total of 20 candidates – 10 in each race – are running for the Supreme Court seats.
The petition filed by Schwarz said Jenkins should be disqualified from the ballot for election to the Supreme Court because the West Virginia Constitution requires a candidate to be admitted to practice law in West Virginia for the decade prior to the election. Jenkins’ was inactive for four of the last 10 years, the petition said.
Meanwhile, the petition said Jenkins and Armstead’s appointments to the court to serve in the interim positions violate the state constitution “by abrogating the clear will of the voters and similarly deny equal protection to those who voted to elect three Democrats.”
The party switch by the governor, coupled with the appointments, are the filling of elected seats through means other than election and result in three conservative Republicans in office where Democrats were elected “by the people at the last authorized election,” the petition said.
Schwartz also argues in his petition that Armstead’s appointment is improper because he, as a sitting delegate, voted to investigate and impeach the entire court, creating two vacancies and then resigned to run for one of the vacancies he helped create. Armstead’s base salary would go from $30,000 to $140,000 per year, the petition said.
“Such enrichment created by his vote on impeachment is specifically prohibited by the emoluments clause and can only be cleansed through the will of the voters,” the petition said.
On Aug. 21, Armstead resigned as House speaker and as a Kanawha County delegate so he could run for Supreme Court.