CHARLESTON -- The two counties suing over a new House of Delegates redistricting plan say they object to House Speaker Rick Thompson's request to intervene.
Putnam County Commissioners Stephen Andes and Joseph Haynes, Putnam County Clerk Brian Wood, Mason County Commissioners Bob Baird, Myles Epung and Rick Handley, and Mason County Clerk Diana Cromley filed a five-page response to Thompson's motion Wednesday in the state Supreme Court of Appeals.
The counties argue that no West Virginia statute exists conferring an "unconditional right" to intervene on the House speaker.
They also argue that his interests are "more than adequately represented" by counsel for respondent Secretary of State Natalie Tennant.
The counties also contend that the separation of powers doctrine is "better protected" by preventing Thompson from being a party to a case before the Court where the issue is whether a statute is constitutional.
They point to Rule 32 of the state's Revised Rules of Appellate Procedure.
The rule provides that anyone may intervene in an original jurisdiction proceeding before the Court "only when (1) a statute of this State confers an unconditional right to intervene; or (2) the representation of the applicant's interest by existing parties is or may be inadequate, and the applicant is or may be bound by judgment in the action."
The counties argue that both provisions are not met in this case where there is no statute granting such right to the House speaker and where his interests are fully served by the attorney general.
"(Tennant) has capable attorneys on staff to represent the State's interests," they wrote. "Further, she is also represented by the West Virginia Attorney General, Darrell McGraw, who has numerous capable attorneys on staff to not only represent State officials, but to render advice and opinions to them -- including the Speaker of the House."
The two counties note that the House speaker constitutes "the leader of one-half of the West Virginia Legislature" and therefore allowing him to intervene in the lawsuit is "improper."
The separation of powers clause, they say, is better upheld where Thompson's involvement in the law is limited to "making it and not interpreting it or arguing to the judicial branch about its constitutionality."
The Court, in an order issued Tuesday, granted the House speaker's motion.
Thompson, in his filing last week, argued that South Charleston attorney Thornton Cooper and Mason and Putnam counties seek relief that violates "established concepts of separation of powers."
"Speaker Thompson believes that the challenges to the House Bill 201 in the two petitions seek to have this Court improperly intercede in the purely legislative task of reapportionment of delegate districts," he wrote.
He also argued that the state's high court doesn't have the jurisdiction to order the relief sought by Cooper and the counties.
"For example, the Putnam/Mason petition seeks a declaration of unconstitutionality and then the retention of jurisdiction by this Court during any subsequent special legislative session in order to 'assure the Legislature's compliance with all provisions of the Constitution of the State of West Virginia and the United States,'" Thompson wrote.
"The Cooper petition seeks relief in the form of an order to the respondent Secretary of State that she process certificates of announcement by candidates for the House of Delegates in accordance with his personal redistricting plan or one based on 'the recommendations he has made in (the Cooper) petition.'"
The counties, along with Cooper, filed their petitions last month.
Both Cooper and the counties argue that the Court should strike down the new redistricting plan, calling it unconstitutional. They say the Court's intervention is needed to prevent Tennant's office from moving forward in implementing the law.
HB 201, the plan redrawing House districts, was signed into law on Sept. 2.
The state's first redistricting plan passed the Legislature Aug. 5, but flaws were found in the bill so Gov. Earl Ray Tomblin was forced to veto it on Aug. 17. He then called for a second redistricting special session.
The second plan passed the House 56-30 on Aug. 20 and passed the Senate the next day. The plan calls for a total of 67 delegate districts.