Kessler: Senate working within rules

By Jessica M. Karmasek | Feb 7, 2011


CHARLESTON -- A West Virginia University law professor says the state Senate is operating legally, according to a statement by Acting Senate President Jeff Kessler on Sunday.

Kessler, D-Marshall, said any questions surrounding the constitutionality of his election to the post should now be put to rest.

Appearing on the Thursday edition on West Virginia Public Broadcasting's The Law Works, West Virginia University law professor Bob Bastress, who is considered the state's leading constitutional scholar, said the Senate "clearly" has the ability to change its own rules.

"There's a specific provision in Article 6 that says each House has the authority to make its own rules and elect its own leaders, and that is all the Senate did was change its rules pursuant to Article 6," Bastress said.

On Jan. 18, the state Supreme Court ruled residents will elect a new governor this year. However, a portion of the Court's decision had some Senate leaders questioning the creation of the current acting Senate president position.

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."

There are those senators who have said they are opposed to Kessler's election and have asserted that the chamber's actions are unconstitutional.

Sen. Evan Jenkins, D-Cabell, recently told WSAZ-TV that the Court's decision gives those opposed, like himself, "more ammunition" to say that the rules adopted are illegal.

Jenkins told the television station that he had planned to meet with Senate leaders to address his and other lawmakers' concerns. If nothing happened soon, he said, he was ready to file a lawsuit.

In addition, Sen. Truman Chafin, D-Mingo, had called for a "friendly petition" of the state's high court in the matter. He, too, has contended that the Senate is acting unconstitutionally.

"Electing one Senate president, it's clear, is constitutional. Electing a second Senate president is unconstitutional," Chafin recently told The Charleston Gazette.

Chafin was removed as Senate majority leader following Kessler becoming acting Senate president.

However, Kessler said on Sunday that he believes the issue is behind them.

"From the beginning I have stated that the Senate has the constitutional power to create its own rules to govern its own body. Such authority includes the power to establish its own officers, designate their titles and define their duties," he said.

Senate Judiciary Chairman Corey Palumbo has said 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," said Palumbo, D-Kanawha. "I can't imagine that the Court would find that we can't do that."

Sen. Robert Plymale, D-Wayne, said in a statement on Sunday it's time for the Senate to put the matter behind them and come together.

"We can no longer waste time with matters of procedure when it's matters of substance which mean so much to our citizens," Plymale said.

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