CHARLESTON – The former chairman of the Wood County Republican Executive Committee says a recent Eastern Panhandle judicial appointment is illegal.
Rob Cornelius of Parkersburg sent a letter September 29 to the the Chief Judge of the 23rd Judicial Circuit, the Berkeley County Prosecutor’s office, the state Judicial Investigation Commission and the state Supreme Court stating that former state Senator John Unger is “legally unable to be appointed or serve as a Magistrate.”
Unger, 52, served as a Democrat representing the 16th District of Jefferson and Berkeley counties for more than two decades. In August, he was appointed by 23rd Circuit Chief Judge Michael Lorensen to fill a Berkeley County magistrate opening left by the resignation of Richard Stephens, who was appointed to a family court judge position.
Cornelius
Unger took over as magistrate August 21.
In his letter, Cornelius says the state Constitution prohibits Unger from being appointed to the position.
“No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this state, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people,” Article VI Section 15 states.
Unger was elected in 2018 to a four-year term. In 2020, Unger sponsored and voted for Senate Bill 597, which raised the pay for magistrates effective July 1, 2021. The bill was passed by both houses and signed into law.
“By virtue of having voted for this pay increase, Unger is prohibited from serving as a magistrate anywhere in West Virginia until the end of the full term to which he was elected in November of 2018,” Cornelius wrote, also noting that Unger voted for another bill that would have added another magistrate position in Berkeley County, but it failed to pass the House. “One could question the ethics of both raising magistrate salaries and voting to create a new position that he apparently believe himself eligible for in his home county. Struck me a bit odd.”
Cornelius’ letter also cites a 1999 state Supreme Court case – Rist v. Underwood & Kiss – that specifically applies to the situation. Then-Governor Cecil Underwood tried to appoint House Speaker Bob Kiss to the state Supreme Court. But Kiss had voted to raise salaries of state Supreme Court justices in that same term, thus he would have personally benefited from it.
A pro-se attorney filed an emergency writ asking the court for an advisory opinion before the appointment occurred.
“Justice Warren McGraw’s majority opinion stated that no member of the Legislature could accept any state government appointment during their current fully elected term for which the had raised compensation,” Cornelius wrote, also quote McGraw’s opinion citing Article VI, Section 15.
Cornelius then questions where or how to lodge a complaint regarding this Unger issue.
“Who has standing?” he wrote. “Who knows? But, this act of violating the Constitution apparently occurred in plain sight in Berkeley County.
“Who is at fault? Unger for knowing better … or was this an act of fraud? Does the local circuit have a duty to discern the eligibility of Unger?”
Cornelius wrote that he penned the letter to prevent more formal legal action as was done in 1999 regarding the Kiss matter.
Cornelius’ letter does not address another part of the state Constitution added in 2006 after the Kiss case.
Chapter 51, Article 3, Section 18 states that any challenge to a person appointed to fill a magistrate position must be brought within 20 days after the appointment.
“It is my hope that you can collectively take the steps needed to correct this illegal appointment and enrichment of a former elected official,” Cornelius wrote. “Clearly, if he is serving in violation of law, the risk to the propriety of cases he has heard or will hear is obvious.
“If nothing else, my goal is to save the taxpayers from any stacks of appeals that could spawn from the preventable presence of an ineligible magistrate.”
Represenatives for the state Supreme Court, Teresa Tarr from the state JIC and Berkeley County Prosecuting Attorney Catie Wilkes Delligatti declined to comment on the story. Unger and Lorenzen did return calls seeking comment.
Cornelius was chairman of the Wood County Republican Executive Committee until former state GOP Chairwoman Melody Potter removed him from the position in 2019. Cornelius filed a complaint and petition for writ of mandamus over the matter. That case still is pending in Kanawha Circuit Court.
