Democrats file writ asking Supreme Court to rule on open Senate seat

By Chris Dickerson | Jan 10, 2016

CHARLESTON – The West Virginia Democratic Party filed a writ of prohibition with the state Supreme Court against Gov. Earl Ray Tomblin appointing a replacement for a recently retired state senator.

Republican state Senator Daniel Hall resigned Jan. 4 to take a job as a state liaison for the National Rifle Association. Typically, such a resignation means the party's executive committee of that representative’s district selects nominees for a replacement. Those names are sent to the governor for him to pick the replacement.

But, Hall was elected as a Democrat in 2012 and switched affiliation to Republican after the 2014 election. In doing so, he broke a 17-17 deadlock in the state Senate, giving the GOP a majority for the first time in more than 80 years.

With Hall’s resignation, however, both parties say they are the one that should be able to fill his position. The Democrats say because Hall was elected as a Democrat, the seat belongs to them. Republicans, however, say it’s theirs because Hall was a Republican when he resigned.

State law says members of the political party executive committee for that district are to submit three nominees to the governor to appoint a replacement when a senator resigns. It says the executive committee is to be from the “party of the person holding the office,” but it also says the party executive committee is to be “of the senatorial district in which the vacating senator resided at the time of his or her election or appointment.”

So, the Democratic Party filed the writ to force the Supreme Court to rule on the issue.

“The statute says that when you resign, the executive committee from the party that elected you gets to send three nominations to the governor, and the governor picks one of those,” attorney Anthony Majestro, who is representing the Democrats, told MetroNews. “The purpose behind that a statute is to respect the mandate of the voters and who they chose to represent them.”

Majestro said he thinks it should be decided before the Jan. 13 start of the Legislative session and because of the slim Republican majority.

“Whatever decision the governor makes we believe was going to end up being resolved in litigation in the Supreme Court,” Majestro told MetroNews. “We think it’s important the issue get decided now. We’re not saying the governor has done anything wrong, we’re saying the court has to tell the governor what to do.

“The statue operates under the presumption that if there’s going to be a resignation or another vacancy, the best way to take into account what the voters wanted is to replace them with someone in the same party.”

State law says the executive committee of the senatorial district has 15 days from the start of the vacancy to submit three names to the governor’s office, which has five days to name the replacement. This year’s session starts Jan. 13.

The lawsuit lists state Democratic Party Chairwoman Belinda Biafore and the local members of the West Virginia Democratic Executive Committee for the Ninth Senatorial District as the petitioners and lists Tomblin and the local members of the West Virginia Republican Executive Committee for the Ninth Senatorial District as respondents.

The petition claims state law is ambiguous in determining which party should fill the vacancy, saying state code “exists to best preserve the mandate of the voters when a legislative vacancy occurs.”

So, because the voters in his district elected Hall as a Democat, the party says Tomblin should have to appoint a Democrat.

Republicans disagree, noting that the Democratic Party filed a petition against a Democratic governor.

“The desperation, panic and disarray of the Democrat Party speaks to their recent failures at the polls and the sheer rebuke they have suffered as a result of selling West Virginia out to Obama and killing coal," West Virginia Republican Party Chairman Conrad Lucas said. "It speaks to the chaos in their camp when they are trying to sue their own governor to force him to break the law.

“Voters have spoken loudly and the law is crystal clear. A Republican must be chosen to fill this vacancy."

Republicans have until Tuesday to file an official response with the court.

In the petition, Democrats say such a situation never has occurred in West Virginia. But it says the Supreme Courts in Kansas and Wyoming previously have ruled in favor of their position. They also say finding for the Republicans could lead to “absurd and inconsistent” consequences.

On Jan. 5, state Attorney General Patrick Morrisey said his office thinks Hall’s seat should be filled by a Republican because that is the political party he belonged to at the time of his resignation.

Morrisey, a Republican, said state Senate President Bill Cole, also a Republican, requested the written opinion.

Morrisey says the Legislature’s intent was “for a replacement senator to come from the political party from which his or her predecessor was affiliated at the time of vacancy.” He also says the Legislature knowingly chose “not to tie the replacement candidate to the former senator’s party affiliation at the time of his or her election or appointment.”

He says the reference to “at the time of his or her election or appointment” addresses the location of the appropriate executive committee as opposed to its political affiliation.

“This sentence shows that the Legislature knew how to (and did) specify ‘the time of . election or appointment’ when it saw fit to do so,” the opinion states. “The Legislature specifically did not include that same qualifier when referring to the vacating senator’s party affiliation in subsection (a), and our Supreme Court of Appeals has made clear that ‘we are obliged not to add to statutes something the Legislature purposely omitted.’”

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