Senate vacancy now in hands of state Supreme Court

By Chris Dickerson | Jan 19, 2016


CHARLESTON – The decision of what party will fill a vacant state Senate seat now rests with the state Supreme Court.

Justices heard oral arguments Jan. 19 on a writ filed by members of the local Democratic Executive Committee from the Ninth Senatorial District. Former state Sen. Daniel Hall resigned from the position earlier this month, and both parties say they have the right to fill the vacant seat.

Hall was elected as a Democrat in 2012, but he switched party affiliation to Republican after the 2014 election. His switch gave the GOP control of the state Senate with an 18-16 majority. It is the first time the Republicans controlled the chamber since the 1930s.

During Tuesday’s oral arguments, attorneys for the Democrats and for Gov. Earl Ray Tomblin, a Democrat, said state law is ambiguous about replacing someone who has switched parties. They maintain giving the seat to a Democrat would uphold the will of the voters who elected Hall as a Democrat.

Attorneys for the Republicans and for state Attorney General Patrick Morrisey, a Republican, counter by saying the statute clearly states that voters trusted Hall’s judgment. And that their trust included him switching parties.

“The issue in this case … is whether we follow the mandate of voters or self-serving interest of a politician,” said attorney Anthony Majestro, who represented the Democratic executive committee members during Tuesday’s arguments. “This is an important provision in our election law, and that is to serve the purpose of respecting the mandate of the voters.

“You have to look at why this statute exists. It’s to preserve the mandate of the voters.”

Majestro maintained that every court across the country that has ever decided the purpose of a similar statute has decided to preserve the mandate of the voters.

“This is obviously … this has become a political question,” Justice Margaret Workman said. “But the court has to approach it in a non-political manner and in a purely legal manner.

Peter Markham, counsel for Tomblin, said the governor’s position hasn’t changed. That being he should be able to pick from a list of nominees from the Democrats. However, he said Tomblin would follow the direction from the court.

Mark Adkins, who represented the local Republican executive committee, said the voters elected Hall and placed their trust in him to make decisions.

“Hall said he was switching parties because he thought it was the best way to represent his constituents,” Adkins argued. “The voters entrusted Senator Hall to make the right decisions on their behalf. One of those decisions was to switch his party affiliation.

State Solicitor General Elbert Lin said the statute is written so that changes can happen in party affiliation.

“They voted for Daniel Hall for a number of different reasons,” Lin argued. “Some voted for him because of the ‘D’ next to his name. There also is a group who voted for him because they trusted his judgment. They voted for him to represent them and to do what was best for the voters of the Ninth District.

“Those voters would be treated differently under their (the Democrats’) reading of the statute. If Daniel Hall switched parties, that group of voters would be treated differently.”

Last week, the state Supreme Court issued a stay in the case, allowing Tomblin to wait to fill a vacant state Senate seat until after the court hears arguments in the matter.

On Jan. 15, the Justices issued the stay after Morrisey's office had filed an emergency order earlier in the day for clarification. That followed another filing from Tomblin saying he planned to fill the state Senate seat left vacant by Daniel Hall on Jan. 17 unless the Court told him otherwise.

"Upon consideration, the Court is of the opinion to and does hereby grant the motion," the stay states. "It is therefore ordered that appointment to the vacant seat in the Ninth Senatorial District shall be, and it hereby is, stayed until further order of this Court."

In his Friday morning filing, Tomblin said he is required to make an appointment within five days of receiving three names from the 9th Senatorial Democratic Executive Committee. Later Friday, however, Morrisey filed a motion asking the justices to stop Tomblin from doing so until they hear arguments in the case next week

“When you have something that’s so fundamental as to what will happen with the appointment of a senator it just makes sense to let the court render its decision before complicating it further,” Morrisey said Friday on MetroNews’ “Talkline” radio show.

Earlier in the week, Morrisey's motion to intervene in the lawsuit filed over the process of filling Hall’s seat was granted, and the state Supreme Court hearing was set for Jan. 19.

“We filed a motion to allow the State of West Virginia to intervene in the Ninth Senatorial District ballot vacancy case so that the opinion of the Attorney General may be properly considered by the West Virginia Supreme Court,” Morrisey said in a statement Jan. 12.

“In our formal legal opinion, we concluded that the Governor must select an individual with the same party affiliation of the vacating member at the time of vacancy. The law is unambiguous and we respectfully request the Court to agree with this position.”

Morrisey’s filing came a day after Tomblin’s legal team filed a response to a petition for writ of mandamus filed Jan. 8 by the state Democratic Party. Tomblin, a Democrat, must appoint a replacement for Hall, who resigned to take a job as a state liaison for the National Rifle Association.

Tomblin said in his filing he would appoint a Democrat to fill the seat of a Republican state senator who resigned, but he wants the state Supreme Court to determine which party will get the seat.

“As noted, the Governor has reached the opposite conclusion on the question presented by the Petition than that reached by the Attorney General in his advisory opinion,” Morrisey’s motion states.

The Supreme Court set the Rule 20 Oral Argument in the case for 1 p.m. on Tuesday, Jan. 19. Justice Brent Benjamin is recused, and no one has been appointed to replace him yet. Any supplemental briefs that are to be filed must be filed by noon on Friday, Jan. 15.

In his Jan. 5 opinion, 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.

When Hall was elected to the state Senate in 2012, he won as a Democrat. But after the 2014 election, he switched to Republican. Hall’s switch to Republican gave the party an 18-16 majority in the Senate for the first time the GOP has ruled the chamber in more than 80 years. Both parties now want to be able to appoint the replacement.

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

In the opinion, Morrisey said 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 said 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 said 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.’”

Typically, a resignation such as this 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.

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.”

The West Virginia Chamber of Commerce, which filed an amicus brief in opposition to the petition Tuesday, argues the case’s decision has “significant implications” for the state.

A “stable and uniform” legal environment, it contends, is key for both businesses within the state and those considering the state as a location for future operations.

“Here the Petitioners ask this Court to interpret W.Va. Code 3-10-5 in a manner that is inconsistent with the plain language of the statute and the manifest intent of the Legislature,” the Chamber’s brief states. “Adoption of the tortured interpretation advocated by the Petitioners would call into question the extent to which other West Virginia statutes will, in the future, be interpreted and applied in a predictable and apolitical manner.

“Should that occur – should it appear that our laws are not being applied in accordance with accepted standards of statutory construction – businesses will question whether they can consider our state as a stable place for their business operations, now and in the future.”

Cole, himself, filed an amicus brief Tuesday, arguing the Democrats’ petition advances a position that is “at odds with the clear language of the applicable statute” and should be denied.

“The Senate has a strong interest in ensuring that vacancies in its body are filled in accordance with a clear and unambiguous statutory directive,” his brief states. “The Senate must be able to rely upon this clear provision for the filling of vacancies so that its proceedings are conducted in an orderly manner and, again, in a way consistent with the Legislature’s clear expression of how vacancies are to be filled.

“Here, the position of the Petitioners is not only inconsistent with the unambiguous provisions of W.Va. Code 3-10-5, but it threatens to undermine the constitutional authority of the Senate to determine how vacancies of its members are to be filled as expressed through the enactment of the statute.”

Cole contends Democrats are simply seeking a “judicial remedy to effect a political solution” rather than addressing the issue through the electoral process.

Members of the state Republican Party’s executive committee also filed a response Tuesday, arguing Democrats “mistakenly” posed their question to the Supreme Court.

Republicans instead want the high court to answer the following questions:

• Does the unambiguous language of West Virginia Code 3-10-5(a) require the governor to appoint a Republican replacement following Senate Hall’s resignation?

• Alternatively, if an ambiguity exists in the language of West Virginia Code 3-10-5(a), does the application of West Virginia’s statutory construction rules interpreting the West Virginia Code require the governor to appoint a Republican to the West Virginia Senate to fill the vacancy created by Senator Hall’s resignation?

• Would the application of West Virginia Code 3-10-5(a) that the vacating legislator’s political party affiliation is set at the time the office is vacated lead to absurd and inconsistent results?

• Would the application of West Virginia Code 3-10-5(a) that the vacating legislator’s political party affiliation is set at the time the office is vacated violate the West Virginia Constitution?

“Petitioners’ interpretation, if accepted, hurts the people of the Ninth Senatorial District and may chill future officeholders’ constitutional rights to freedom of speech and association,” the Republicans’ response states.

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