Justices hear gubernatorial election arguments

By Jessica M. Karmasek | Jan 11, 2011



CHARLESTON -- The West Virginia Supreme Court of Appeals listened to nearly two hours of oral arguments Tuesday to determine whether a special gubernatorial election should be held.

The West Virginia Constitution currently gives Senate President Earl Ray Tomblin the duty of acting as governor. Tomblin succeeded newly elected U.S. Sen. Joe Manchin in November. He was elected to the Senate seat long held by the late Robert C. Byrd's.

Tomblin has said current laws "clearly provide" that the election to replace Manchin as governor should be in 2012. But the Logan County Democrat has acknowledged that he knows many people want an election before that.

The West Virginia Citizen Action Group, South Charleston attorney Thornton Cooper, the West Virginia AFL-CIO and House Speaker Rick Thompson are among those who would like a special election sooner.

Both the citizens group and Thompson contend that Tomblin's dual role as governor and lawmaker indeed violates the state constitution.

Kathryn Reed Bayless, who argued on behalf of the citizens group, admitted that while the situation is simple to state, it is not so simple to resolve.

Nonetheless, the people of West Virginia, she said, want an election as soon as possible.

She points to Article VII, Section 16 of the constitution:

"In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of perfonnmg the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy."

Bayless said of the law, "We have a constitutional provision that requires a new election. They specifically tied the timing of the election to the first three years of a term."

But then the question remains: when should such a special election be held?

The justices argued they could not make such a determination. To prescribe a date and time and how it should be handled would be in violation of the constitution. That, they said, should be left to the Legislature.

"The issue is, how far does the Court go?" Justice Thomas McHugh said.

But Bayless argued that election cases are "a special breed" and that residents are in need of "speedier relief."

Cooper, who vowed in August to challenge the state's gubernatorial succession laws, went as far as offering up a specific timeline for the special election.

If the Court, he said, released an order by the end of the week, the deadline for candidates to file could be Jan. 29. A primary, he said, could be held 56 days later, and the special election another 56 days later on May 21.

Again, the justices expressed their concern at violating the constitution and getting involved in what they see as the legislative process.

At one point, Justice Brent Benjamin asked Cooper if he felt the Legislature could not be trusted to act responsibly in the matter.

Cooper replied that they have an "incentive" not to.

Thomas P. Maroney, who appeared on behalf of West Virginia AFL-CIO President Kenneth Perdue, said the issue before the Court is a "very, very serious" one that "affects everyone in the state."

The labor union's proposal, Maroney explained, called for the state's high court to issue a mandate to the Senate president -- who is acting as governor -- telling him he should issue a proclamation calling for a special election.

Maroney said he understands the Court's reluctance to set any dates or times. He said those time frames should be set by the Secretary of State's office.

Anthony J. Majestro, who represented Speaker Thompson on Tuesday, said under his proposal a new or special election should be held in November.

Thompson, D-Wayne, has stressed all along that he believes such an election should occur as soon as possible.

"I believe the fact that the West Virginia Constitution calls for the Senate President to act as governor pending an election indicates the temporary nature of the Senate President's role in the transition and the need for an expedient election," Thompson said in a statement last month.

"If Gov. Manchin's replacement is not chosen until November 2012, for the next two years, more than one half of the term, the people of West Virginia will have a governor they did not select. I don't believe that is what the framers of the state Constitution had in mind."

Thompson has said the people of West Virginia "want, deserve and expect" to have a governor they elected.

Majestro said their proposal -- which also calls for an order to be issued to the Senate president -- offers "a definite resolution" to the problem.

And the Legislature, he argued, still has an opportunity to go back and change the law to make it more clear.

He also reminded the Court that it has a duty to interpret statutes in a manner to avoid "absurd and inconsistent results."

"I think this gets the state out of the constitutional crisis it's in," he said of the proposal.

More importantly, Majestro said he and Thompson believe having a special election sooner rather than later would allow officials to "get back to governing the state," instead of worrying about having an election.

The West Virginia Education Association -- the state's largest teachers union -- also is urging the Court to order a special election. However, the union, which filed an amici brief on behalf of the citizens group last month, did not present an oral argument on Tuesday.

Tomblin's lawyer, Thomas V. Flaherty, argued in response that the petitioners were asking the Court "to be a super Legislature" and that they are attempting to insert new language into the state's Constitution.

Flaherty also scoffed at the idea of a November 2012 election being "an absurd result."

He admits the result -- essentially electing a governor for a month and a half -- would be "unusual" but "temporary."

"But if you don't like the statute, you have to go back to the Legislature and change it," he said.

Flaherty also said he thinks the people of West Virginia "are tired of elections."

He argued that having a special election sooner also would "invite" a series of rolling elections.

"Let's say a member of the U.S. Congress runs in that election, then that office has to be filled," he explained. "We invite a series of Domino-effect vacancies."

In a press conference last week, Tomblin also suggested West Virginia should elect a lieutenant governor to take over when its chief executive departs.

However, this will not resolve the pending Court challenge.

Also as part of Tuesday's oral arguments, Silas B. Taylor appeared briefly on behalf of Secretary of State Natalie Tennant's office, mainly as a resource for the Court.

While Tennant's office has been named as a party in the case, she's considered an "interested party" or a stakeholder, Taylor said.

"There is no clear legal duty that she hasn't done yet," he said.

Taylor did provide the Court with a clearer timeline.

He said if an election were held in November, the filing period would end Jan. 29, as Cooper suggested. However, that would mean the deadline for filing would have started on Monday, he said.

That means, at this point, a convention most likely would have to be held instead of a primary, Taylor said.

"The only reason the special election to fill Sen. Byrd's seat could happen so quickly is 20-some statutory deadlines were ignored, and that was done by legislation," he explained.

Taylor also noted the projected cost of a special election -- $4 million.

While a hefty sum, the justices responded that the cost could play no part in their decision.

Justice Robin Davis recused herself from the case. Preston Circuit Judge Lawrance S. Miller Jr. sat in her place.

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