West Virginia Record

Friday, December 6, 2019

Kiss's residency becomes hot topic

By Chris Dickerson | Feb 3, 2006

House Speaker Bob Kiss

Harry Deitzler

CHARLESTON – A Charleston attorney says he has no beef with House Speaker Bob Kiss personally.

But Harry Deitzler, a partner in the law firm of Hill, Peterson, Carper, Bee & Deitzler PLLC, says he does have questions about Kiss's residency because of what it could mean to the state.

Deitzler, also a Charleston City Councilman, says Kiss's time in Charleston could invalidate his status as a member of the House representing Raleigh County and, in turn, invalidate any work the Legislature might do under his direction.

"It's a concern based on the law of West Virginia clear back to the (state) Constitution," Deitzler said. "The reason is because the (West Virginia) Constitution says if a delegate has removed himself from a district, his seat should be vacated.

"If he has removed himself from his district, his seat is currently vacant under the (West Virginia) Constitution."

Where Kiss calls home has come into question in recent weeks, even after he decided not to run for another term in the House of Delegate.

Kiss is a partner in the Charleston law firm of Bowles Rice McDavid Graff & Love, which has no Beckley office. Kiss' wife works for the state in Charleston. They rent a home in Charleston, and their children are enrolled in a day care program in Charleston.

"If Bob is living in Kanawha City, which he is, and his kids are going to school here and he works here full-time and that law firm has no offices in Beckley and his wife is employed full-time here and he has said he is not running again in Beckley," Deitzler said. "Therefore, he has no intention to remain in Beckley.

"Therefore, since he doesn't live there and has no intention of remaining or returning there, under the law, it appears that he is not a delegate."

In a recent speech on the floor of the House, Kiss addressed these concerns.

"Residency is not, just because you decide to locate someplace and rent someplace for convenience because of where you work, that does not by itself establish your residency," the speaker said in the speech. "When we are not working, with few rare exceptions, we are at our home in Raleigh County."

Deitzler mentioned a 1984 state Supreme Court case involving residency questions for two state senators – current Gov. Joe Manchin and Chuck Polan – whose primary residences were no longer in their senatorial districts after redistricting.

"It mentions a two-part test," Deitzler says of that case. "The court ruled that residency should be established by bodily presence in a place and the intention to stay in that place."

Deitzler said every citizen of the state should be questioning this issue.

"My concern is no different than the other 1.6 million people who live here in West Virginia," he said. "But it should be a concern of the other 133 people in the Legislature.

"If someone questions this after important legislation is passed, if someone comes in and doesn't like a law … that makes a valid challenge if the court looks at the evidence."

He compared it to a championship team having an ineligible player. The team can win game after game, but all of those victories are forfeited if one player is ruled ineligible.

"Typically what happens, no one challenges the player until the team starts winning," he said. "But once you win the championship, they start looking at eligibility.

"If they pass important legislation and it's something someone feels strongly about, they start looking for ineligible players.

"If that challenge can be avoided, why take the risk?"

Deitzler reiterated that he has no agenda against Kiss.

"Kiss hasn't done anything that bothers me one way or the other," he said. "Why he wants to stay in there and put the Legislature through this … why is his personal agenda at being in the Legislature more important than the legislative agenda?

"There are other people in Legislature who spend a large amount of time in Charleston, but they still have their businesses and so forth in their home counties."

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