CHARLESTON — This week could be the final week on the bench for Justices Tim Armstead and Evan Jenkins, who were appointed to the court by Gov. Jim Justice.

Whoever wins the division 1 and 2 special election on Tuesday for West Virginia Supreme Court of Appeals will take office and be sworn in as soon as counties and the state certify the results of the election.

Armstead and Jenkins are candidates for division 1 and division 2, respectively, but the process for how Armstead and Jenkins were appointed to the court raised questions at the time from Democratic legislative leaders.

“With no disrespect to either of them, the appointments by the governor do nothing to restore, or even begin to rebuild, public confidence in the highest court of our state,” said House Minority Leader Tim Miley, D-Harrison. “Instead, it perpetuates the belief that the Supreme Court has become the subject of a political agenda.”

Delegate Shawn Fluharty, D-Ohio, called the appointments political.

“If the governor truly wanted to restore public confidence in our court system, he would not have made such obviously political appointments by installing individuals who have been part of the good-old-boy system for a long, long time,” said Fluharty.

∫ A NEW WAY OF SELECTING JUSTICES

The Judicial Vacancy Advisory Commission is a relatively new institution. Article 8 section 7 of the West Virginia Constitution gives the governor the authority to appoint justices and judges when vacancies occur. State Code 3-10-3 gives the governor specific requirements when to call a special election to fill the remainder of a judge or justice’s term.

In 2010, the West Virginia Legislature passed House Bill 4036, adding a new section to state code creating the Judicial Vacancy Advisory Commission. The commission was established to assist the governor in making appointments to judicial vacancies.

According to state code, the commission consists of eight members. Four are members of the public appointed by the governor with consent of the Senate. The other four appointees are attorneys selected by the West Virginia State Bar’s Board of Governors. Commission appointees serve staggered six-year terms and no more than four can be members of the same political party.

When a vacancy occurs, the commission has 90 days from the time of the vacancy — or formal announcement of resignation submitted to the governor — to submit a list of between two and five qualified replacements. Starting when the commission submits nominees, the governor has 30 days to make an appointment. If he doesn’t get a list of nominees within 30 days after the vacancy, he can also go ahead and name an appointment.

On Oct. 25, Justice reappointed Raleigh County Commissioner Byrd White and attorneys Debra Scudiere and Susan Brewer, both of Monongalia County, to terms ending in 2024. Other members are Kanawha County Commissioner Kent Carper, Cabell County attorney Bert Ketchum (son of Menis Ketchum), former AFL-CIO president Kenny Perdue, Charleston attorney Steve Robey, and Don Wagenheim of Wheeling.

∫ FROM LEGISLATION TO REALITY

Starting with the July 11 letter of resignation from Ketchum received by Justice, a 90-day countdown started.

“I have directed my general counsel to provide the necessary documentation to the Judicial Vacancy Commission and other state agencies as may be appropriate to fill this vacancy created by Justice Ketchum’s resignation,” Justice said.

Ketchum resigned July 27 just days before agreeing to plead guilty in federal court to a count of wire fraud for use of a state vehicle and fuel card, which he will be sentenced for Jan. 30. Justice Robin Davis resigned Aug. 14 after being impeached by the House of Delegates.

The day after Davis resigned, the commission released the names of nine applicants who applied for Ketchum’s seat: Armstead, Jenkins, Robert Carlton of Williamson, Gregory Chiartas of Charleston, Robert Frank of Lewisburg, Arthur King of Clay, D.C. Offutt Jr. of Barboursville, William Schwartz of Charleston, and Martin Sheehan of Wheeling. The commission put a deadline of Aug. 22 for applications for Davis’ seat, and held interviews Aug. 23 and 24 for both seats.

The evening of Aug. 24, the commission released the names of nine nominees to fill in for Ketchum and Davis: Armstead, the former Republican speaker of the House of Delegates, was nominated to succeed Ketchum, as well as Frank, Offutt, and Stephen Crislip of Charleston.

Evan Jenkins, the former Republican congressman representing West Virginia’s 3rd District, was nominated to replace Davis, along with Chiartas, Schwartz, James Flanagan of Charleston, and Marty Sheehan of Wheeling.

The next day, Aug. 25, Justice held a press conference and appointed Armstead and Jenkins to the high court.

“Both of these appointees are true conservatives, and both have the honor and integrity we need to restore trust to our highest court. These men have dedicated their lives to serving the people of West Virginia,” Justice said.

Armstead and Jenkins had a 20-day window before being seated as justices in case of an objection, that came in the form of petitions brought by King and Schwartz, who is also a candidate for state Supreme Court division 2. King and Schwartz challenged the eligibility of Jenkins to be on the Nov. 6 ballot due Jenkins making his law license inactive with the state bar while he served in Congress for four years. Schwartz also challenged the eligibility of Jenkins and Armstead to sit as temporary justices on the bench until the November elections.

A five-member panel of circuit judges temporarily appointed to the court ruled Sept. 24 against the petitions. Armstead was sworn in the next day, with Jenkins sworn in a week later.

On election day Tuesday, voters will decide whether Armstead and Jenkins should serve out the remainder of Ketchum and Davis’ terms, which are up for election in 2020 and 2024.