Rumors of Senate changes lawsuit lingers

By Jessica M. Karmasek | Jan 28, 2011

Palumbo CHARLESTON -- West Virginia Senate Judiciary Chairman Corey Palumbo says rumors of a possible lawsuit over recent Senate rules changes continue to fill the halls of the Legislature.

Palumbo

CHARLESTON -- Senate Judiciary Chairman Corey Palumbo says rumors of a possible lawsuit over recent Senate rules changes continue to fill the halls of the Legislature.
 
"You hear a lot of scuttlebutt about it," he said Wednesday. 
 
But to his knowledge, no suits have been filed yet.
 
Last week, the state Supreme Court ruled residents will elect a new governor this year. Acting Gov. Earl Ray Tomblin, who had argued an election wasn't needed until 2012, issued a proclamation on Friday calling for a special gubernatorial election on Oct. 4.
 
However, a portion of the Court's decision has some Senate leaders questioning the creation of the current acting Senate president position. Sen. Jeff Kessler, D-Marshall, was chosen for that role.
 
According to the Court's opinion, "Our State Constitution does not provide for the office of acting governor. Rather, it simply provides that the senate president shall temporarily act as governor during a vacancy.
 
"The senate president does not cease being a constitutional officer when he or she acts as governor. The senate president remains the senate president."
 
Sen. Evan Jenkins, D-Cabell, recently told WSAZ-TV that he believes the creation of the acting Senate president position is unconstitutional -- and that the recent Supreme Court opinion backs him up.
 
"We think the decision (Jan. 18) gives us more ammunition to say that the rules adopted last week are unconstitutional," Jenkins said.
 
Jenkins told the television station that he had planned to meet with Senate leaders to address his, and other lawmakers', concerns. If nothing happens soon, he said, they are ready to file a lawsuit.
 
On Wednesday, Sen. Truman Chafin, D-Mingo, called for a "friendly petition" of the state's high court in the matter. He contends the Senate is acting unconstitutionally.
 
"Electing one Senate president, it's clear, is constitutional. Electing a second Senate president is unconstitutional," Chafin told The Charleston Gazette. Chafin was removed as Senate majority leader following Kessler becoming acting Senate president. 
 
Palumbo, D-Kanawha, said the Court's decision is up for interpretation. But he feels "very strongly" that the Constitution is "very clear" that the Senate can make its own rules.
 
"We have the clear authority to draft our own rules," he said. "I can't imagine that the Court would find that we can't do that."
 
Palumbo just hopes if a lawsuit is filed, it happens sooner rather than later.
 
He described it as a "lingering issue" and said it's debated almost on a daily basis.
 
"I just want to get all of this behind us," he said. "I don't like all of this hanging over our heads. At this point, I think we need to move on and do the state's business."
 
Palumbo also said he doesn't think a special primary election will have an effect on any of the acting governor's recent appointments.
 
On Friday, Tomblin announced the appointment of Paul T. Farrell to fill the vacancy in the state's Sixth Judicial Circuit.
 
The vacancy was a result of Judge Dan O'Hanlon's retirement. O'Hanlon served for nearly 26 years on the bench in Cabell County.
 
Palumbo said the Constitution, as pointed out in the Court's most recent decision, has given Tomblin the authority to act as governor and that's what a governor does -- appoint people to fill vacancies.
 
While those judges appointed by Tomblin wouldn't have to be put on the special primary ballot, they will have to run for the remainder of their terms -- which run through 2016 -- next year, Palumbo explained.
 
"They always have to run for the remainder of their terms," he said.
 
However, Delegate Patrick Lane, R-Kanawha, said in those cases where the code language says "until the next general election" or some similar language, it would seem to suggest those elections need to take place this year.
 
"Most of the code language states that the appointment is for the remainder of the unexpired term," he explained. "So, for those specific cases I don't think the person would need to run in an election this year."
 
Lane said the issue is "interesting," but needs some exploring.
 
On Thursday, the Senate Judiciary Committee voted in favor of holding a primary.
 
Tomblin, who called for the primary election instead of a nominating convention, said in a statement, "I want to commend the Senate Judiciary Committee for their careful and thoughtful consideration of, and passing, the bill to hold a primary election.
 
"It is extremely important that all the citizens of our great state be permitted the opportunity to select a nominee of their choice in a primary election.  To not allow for a primary would disenfranchise all independent voters as well as eliminate the opportunity for our military serving overseas to express their choice."
 
West Virginia Day, June 20, is the date selected for the primary election. However, county clerks are asking to hold it earlier, in May. The bill now advances to the Senate Finance Committee.

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