CHARLESTON — A West Virginia Supreme Court candidate is in hot water for a campaign ad claiming that three of five members of the current high court have little courtroom experience.
Kanawha Family Court Judge Jim Douglas, running for justice in Division 2, said he was contacted Friday by state Judicial Investigation Commission (JIC) counsel Teresa Tarr regarding a TV spot that aired on WSAZ-TV that said three unidentified members of the current court have never picked a jury, cross-examined a witness or argued a case before the high court on which they now serve.
The ad emphasized Douglas’ 44-year career as a trial lawyer and family court judge.
“She said, ‘You made a false statement,’” Douglas said of the conversation with Tarr. “I said, ‘Please tell me which one is false and I will apologize immediately.’”
He said Tarr didn’t respond, but directed him to pull the ad — which had already completed its limited run — and to run a retraction, or the JIC would have to file a complaint against him.
Douglas said Tarr’s call came shortly after he had an email exchange with Justice Evan Jenkins, which began with an email Jenkins sent at 10:41 p.m. Thursday, using his official court email address, and continued into Friday morning.
In the first email to Douglas, Jenkins stated: “Jim … I saw your ad this evening on WSAZ where you make factual claims about the Justices’ experience. Please let me know who the three Justices are you reference. If you are including me, your claims are not true and I take great offense at your efforts to disparage the reputation of the Court.
“And if I am not included in the three you reference and you cannot prove three other Justices do not have the experience you claim, I insist the ad be taken down immediately and that you issue a public apology for your false, deceptive and misleading ad.”
Douglas said he had used Westlaw online research to search for any cases that either Jenkins or Justice Tim Armstead had argued before the state Supreme Court, noting, “It came up with the biggest goose-egg you ever saw for him and Armstead.”
The lack of courtroom experience for Jenkins and Armstead, who were better known for long legislative tenures than for their legal practices, was an issue when the two were appointed to the court by Gov. Jim Justice and ran for election to the court in 2018.
In 2018, Charleston lawyer Bill Schwartz unsuccessfully challenged Jenkins’ appointment to the court, contending he was ineligible to serve since his law license had been placed in inactive status from December 2014 to August 2018.
At 1:45 a.m. Friday, Douglas responded to Jenkins: “For my edification, did you ever cross examine a principal witness in a trial, did you ever pick a jury as lead counsel in a trial, did you ever argue a case to the WV Supreme Court as first chair, did you ever present an indictment to a state Grand Jury? If you have done so, please advise. Incidentally, I have done all of the foregoing.”
At 7:17 a.m. Friday, Jenkins replied: “Jim, since you are now questioning me about my experience, I can only assume you’ve included me as one of the three. As I said before, if you are, the ad is false. How can I be more clear? In fact, my legal experience including the civil and criminal cases I’ve personally handled is a matter of public record in my application to the JVAC (Judicial Vacancy Advisory Commission). You have a responsibility to make sure your statements are accurate and truthful. Again, please identify by name the three Justices you are referring to in your ad?”
At 8:18 a.m., Douglas responded with a lengthy email questioning Jenkins’ “unusual attempts as a sitting Justice to privately lecture me on obligations, to make demands of me, or otherwise to intimidate me.”
Douglas added, “Any public dispute about this race would not center on me, but the focus would ultimately be upon your alleged experience or inexperience (to which you seem strangely sensitive) versus my First Amendment rights.”
Later in the hour, Douglas emailed: “Evan: Did you ever argue a case as first chair to the very Supreme Court on which you now sit? If not, what is your complaint?”
In the final email in their exchange that morning, Jenkins wrote, “Jim, I can see you are unwilling to tell me who you are referring to in the ad. I have said now repeatedly that if you are including me, the ad is false. I will not engage in a back and forth. Evan.”
Douglas said the timing between his email exchange with Jenkins and the call from Tarr strongly suggests that she was contacted by the justice or by someone on his behalf.
Douglas, who noted that there is no incumbent justice on the ballot in Division 2, said he opted to run a retraction although he stands by the basic premise of the ad: that the current court lacks legal experience and expertise, particularly in the area of family law.
“At least 90% or more, I’m apologizing for telling the truth,” he said.
Neither Jenkins nor Tarr responded to requests for comment Tuesday.