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U.S. Rep. Evan Jenkins, left, R-W.Va., and West Virginia Gov. Jim Justice shake hands during a meeting in September 2018. Justice appointed Jenkins to fill a West Virginia Supreme Court vacancy created by the retirement of Justice Robin Davis. Jenkins also is a candidate in the November election to fill the remainder of Davis' term.

CHARLESTON — A Clay County lawyer says U.S. Rep. Evan Jenkins, R-W.Va., has not been admitted to practice law in West Virginia for at least 10 years prior to the upcoming election, which means he is not eligible to serve on the Supreme Court under the West Virginia Constitution, according to a petition filed with the high court Monday.

Wayne King filed a petition with the Supreme Court seeking to have the court direct Secretary of State Mac Warner to remove Jenkins' name from the Nov. 6 ballot. King also wants Warner to withhold or withdraw Jenkins' candidacy for the Division 2 election to the court, which is the race for the term left vacant by Robin Davis' retirement.

King applied to be appointed to the vacancy left when Menis Ketchum resigned from the court. King did not file candidacy in either of the November special elections for the court.

King's petition came the same day a Charleston attorney who is seeking election to the Supreme Court said he planned to file a petition challenging Jenkins' appointment and possible election to the court.

William Schwartz said last week that he planned to challenge Gov. Jim Justice's appointment because Jenkins, a Republican, was appointed to temporarily serve on the court in place of Davis, who was elected to the court as a Democrat.

Schwartz also said he planned to challenge Jenkins' appointment on similar grounds cited in King's petition regarding Jenkins' admission to practice law in the state.

Schwartz plans to file his petition in Kanawha Circuit Court this week.

Jenkins was admitted to practice law in West Virginia in 1988, according to the West Virginia State Bar website.

In his petition, King said Jenkins voluntarily made his law license inactive in December 2014, and it was made active again on Aug. 9.

"In essence, Respondent Jenkins' law license was inactive for a period of nearly four years within the 10-year period prior to the scheduled Nov. 6, 2018, general election," King said in the petition.

Justice announced last month that he had appointed Jenkins to temporarily fill the Davis vacancy and former West Virginia House of Delegates Speaker Tim Armstead to fill the vacancy left by the resignation of Ketchum.

Jenkins and Armstead both are seeking election in November to serve the rest of the vacant Supreme Court terms.

Ketchum announced his resignation from the court on July 11. The resignation was effective July 27.

He pleaded guilty to one count of wire fraud in U.S. District Court for the Southern District of West Virginia. His sentencing hearing is scheduled for Dec. 6.

Davis announced her retirement from the court on Aug. 14, one day after the House of Delegates adopted 11 articles of impeachment against her, Chief Justice Margaret Workman, Justice Beth Walker and suspended Justice Allen Loughry.

The West Virginia Constitution requires that "No person may hereafter be elected as a justice of the Supreme Court of Appeals unless he has been admitted to practice law for at least 10 years prior to his election, and no person may hereafter be elected as a judge of a circuit court unless he has been admitted to practice law for at least five years prior to his election."

In his petition, King said the Supreme Court ruled in 1984 on how that language affected circuit judge candidates. He said that ruling should be applied in his case regarding Supreme Court candidates.

In the case of Haught v. Donnahue, the court ruled that a former California attorney seeking election to circuit court in Doddridge County couldn't run for that office because he was not admitted to practice law in West Virginia for five years prior to the election.

In the court's opinion, then-Justice Darrell McGraw also said the attorney's admission to practice law had to be uninterrupted for five years, but the court's ruling didn't address whether those consecutive years had to take place during the time immediately leading up to the election in question.


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