CHARLESTON — Gov. Earl Ray Tomblin says he would appoint a Democrat to fill the seat of a Republican state Senator who resigned, but he wants the state Supreme Court to determine which party will get the seat.
Tomblin’s legal team filed a response Jan. 11 to a writ of prohibition filed Jan. 8 by the West Virginia Democratic Party. Tomblin, a Democrat, must appoint a replacement for Daniel Hall, who resigned last week to take a job as a state liaison for the National Rifle Association.
When Hall was elected to the state Senate in 2012, he won as a Democrat. But after the 2014 election, he switched to Republican. Both parties want to be able to appoint the replacement. Hall’s switch to Republican gave the party an 18-16 majority in the Senate for the first time the GOP has ruled the chamber in more than 80 years.
In their Jan. 8 filing, the Democratic Party says it believes the replacement should be a Democrat because Hall was elected as a Democrat in 2012. In Monday’s legal filing, the Tomblin administration agreed.
“Governor Tomblin’s intention to apply Daniel Hall’s party affiliation at the time of his last election in appointing his replacement is supported by sound public policy,” the brief states. “It honors the mandate of the voters of the Ninth Senatorial District and avoids a constitutional challenge.”
However, Tomblin says he knows he isn't "final arbiter" in this matter. He also says he knows his appointment of a Democrat would be challenged in court by the Republican Party.
"Tomblin then will honor the mandate of this Court – whatever it may be – and perform his constitutional duty to 'take care that the laws (of West Virginia) be faithfully executed,'" the answer states.
Jan. 12 is the Supreme Court’s deadline to receive all filings in the matter.
Regardless of the party of Hall’s replacement, current Senate President Bill Cole will remain in that post because he was elected for two years by his fellow Senators.
Typically, a resignation such as this means the party's executive committee of that representative’s district selects nominees for a replacement. Those names are sent to the governor for him to pick the replacement.
State law says members of the political party executive committee for that district are to submit three nominees to the governor to appoint a replacement when a senator resigns. It says the executive committee is to be from the “party of the person holding the office,” but it also says the party executive committee is to be “of the senatorial district in which the vacating senator resided at the time of his or her election or appointment.”
So, the Democratic Party filed its writ to force the Supreme Court to rule on the issue.
“The statute says that when you resign, the executive committee from the party that elected you gets to send three nominations to the governor, and the governor picks one of those,” attorney Anthony Majestro, who is representing the Democrats, told MetroNews. “The purpose behind that a statute is to respect the mandate of the voters and who they chose to represent them.”
Majestro said he thinks it should be decided before the Jan. 13 start of the Legislative session and because of the slim Republican majority.
“Whatever decision the governor makes we believe was going to end up being resolved in litigation in the Supreme Court,” Majestro told MetroNews. “We think it’s important the issue get decided now. We’re not saying the governor has done anything wrong, we’re saying the court has to tell the governor what to do.
“The statue operates under the presumption that if there’s going to be a resignation or another vacancy, the best way to take into account what the voters wanted is to replace them with someone in the same party.”
State law says the executive committee of the senatorial district has 15 days from the start of the vacancy to submit three names to the governor’s office, which has five days to name the replacement. This year’s session starts Jan. 13.
The lawsuit lists state Democratic Party Chairwoman Belinda Biafore and the local members of the West Virginia Democratic Executive Committee for the Ninth Senatorial District as the petitioners and lists Tomblin and the local members of the West Virginia Republican Executive Committee for the Ninth Senatorial District as respondents.
The petition claims state law is ambiguous in determining which party should fill the vacancy, saying state code “exists to best preserve the mandate of the voters when a legislative vacancy occurs.”
So, because the voters in his district elected Hall as a Democat, the party says Tomblin should have to appoint a Democrat.
Republicans disagree, noting that the Democratic Party filed a petition against a Democratic governor.
“The desperation, panic and disarray of the Democrat Party speaks to their recent failures at the polls and the sheer rebuke they have suffered as a result of selling West Virginia out to Obama and killing coal," West Virginia Republican Party Chairman Conrad Lucas said. "It speaks to the chaos in their camp when they are trying to sue their own governor to force him to break the law.
“Voters have spoken loudly and the law is crystal clear. A Republican must be chosen to fill this vacancy."
In the petition, Democrats say such a situation never has occurred in West Virginia. But it says the Supreme Courts in Kansas and Wyoming previously have ruled in favor of their position. They also say finding for the Republicans could lead to “absurd and inconsistent” consequences.
On Jan. 5, state Attorney General Patrick Morrisey said his office thinks Hall’s seat should be filled by a Republican because that is the political party he belonged to at the time of his resignation.
Morrisey, a Republican, said state Senate President Bill Cole, also a Republican, requested the written opinion.
Morrisey says the Legislature’s intent was “for a replacement senator to come from the political party from which his or her predecessor was affiliated at the time of vacancy.” He also says the Legislature knowingly chose “not to tie the replacement candidate to the former senator’s party affiliation at the time of his or her election or appointment.”
He says the reference to “at the time of his or her election or appointment” addresses the location of the appropriate executive committee as opposed to its political affiliation.
“This sentence shows that the Legislature knew how to (and did) specify ‘the time of election or appointment’ when it saw fit to do so,” the opinion states. “The Legislature specifically did not include that same qualifier when referring to the vacating senator’s party affiliation in subsection (a), and our Supreme Court of Appeals has made clear that ‘we are obliged not to add to statutes something the Legislature purposely omitted.’”
