Justices: Vacant state Senate seat will go to a Republican

By Chris Dickerson | Jan 22, 2016

CHARLESTON – The state Supreme Court has ruled that the vacant state Senate seat in the headlines for the last two weeks should be filled by a Republican.

The Justices issued their opinion Jan. 22, rejecting the writ filed by Democrats who argued it should be filled by a member of their party because former state Senator Daniel Hall was a Democrat when he was elected in 2012.

He switched party allegiance after the 2014 election, becoming a Republican.

“The Court finds no ambiguity in West Virginia Code,” Justice Margaret Workman wrote in the opinion. “Accordingly, we deny the requested writ of mandamus seeking to direct the governor to fill the current vacancy in the West Virginia Senate from a list of three candidates to be selected by the petitioners.

“The vacancy is to be filled according to the explicit provisions of the statute, from a list of three candidates to be selected by the respondent West Virginia Republican Executive Committee for the Ninth Senatorial District, based upon Senator Hall’s most recent affiliation with the Republican Party.”

It was a 3-1 ruling, with Justice Robin Jean Davis dissenting. Justice Brent Benjamin recused himself.

Chris Stadelman, spokesman for Gov. Earl Ray Tomblin, said Friday the governor would follow the opinion.

"Gov. Tomblin has said throughout this process that he will abide by the court’s ruling, and based on the decision issued Friday, he will appoint a Republican from the list submitted to him," Stadelman said.

Later Friday, Tomblin appointed Sue Cline to the seat.

Workman's opinion said state law was "clear and unambiguous."

"It succinctly states the requirements for filling a vacancy in the West Virginia Legislature," she wrote. "Subsection (a) provides that a vacancy is to be filled through appointment by the governor. The list to be utilized by the governor in selecting the appointee is to be composed of 'three legally qualified persons submitted by the party executive committee of the party with which the person holding the office immediately preceding the vacancy was affiliated.'"

Chief Justice Menis Ketchum filed a concurring opinion.

"I realize that my vote in this case effectively eliminates any chance of me being re-elected to our Supreme Court," wrote Ketchum, who ran as a Democrat in 2008 when he was elected. "Nevertheless, I took an oath to impartially apply our laws and I promised to set political favoritism aside. 

"The statute in this case is clear. The appointment by the governor is to be made from a list of persons submitted by the executive committee 'of the party with which the person holding the office immediately proceeding the vacancy was affiliated.'

"Senator Hall was a registered Republican when he vacated the office. So be it!"

Justice Allen Loughry also filed a concurring opinion.

"In the event the voters in the affected senatorial district disapprove of the governor’s selection, those same voters will have the opportunity during the primary and general elections held later this year to select a different person to represent their district in the state Senate," he wrote.

The state Republican Party praised the ruling.

"We appreciate the time and care of the Court in its efforts to interpret this crucial piece of West Virginia Code, and the decision made today to maintain conservative Republican representation for the citizens of Wyoming, Raleigh and McDowell counties," Chairman Conrad Lucas said. "We look forward to the governor's appointment of one of our three qualified nominees and for them to be seated by the Senate as soon as possible.

"The business of the state must be done. Any further delay will hamper our state's budding comeback story from eight decades of Democrat damage to our population and economy. We pray that our new senator and all elected officials have blessings upon them as they seek to move this state forward again."

State Senate President Bill Cole, a Republican, also hailed the mandate.

"We applaud the court’s decision today, and we appreciate that they agree with what we believe is clearly spelled out in this section of code – that the Ninth Senatorial District replacement was to be a member of the Republican Party," he said. "Our task at hand now is to move forward, and to get to work to address our state’s troubled economy, our budget which is in crisis, and our workforce which is in critical need of a jump start. Without further distraction, we plan to get to work.

"I urge Governor Tomblin to quickly appoint this replacement, and allow him or her to begin representing the residents of the Ninth District without further delay."

State Attorney General Patrick Morrisey did as well.

“The state Supreme Court upheld the rule of law today," the Republican said in a statement. "The court agreed with my office’s opinion that the statute is clear and should be applied without regard to partisan politics.”

Justices heard oral arguments Jan. 19 on the writ filed by members of the local Democratic Executive Committee from the Ninth Senatorial District. 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 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 Morrisey countered 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.

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.

Earlier, Morrisey's motion to intervene in the lawsuit filed over the process of filling Hall’s seat was granted. 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.

In a 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.

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, 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, 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.

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