Oct. 16, 2010
Sobonya Agrees with HNN on Separation of Powers Constitutional Crisis
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – Earlier this week at the interim legislative committee hearings, three attorney spoke about the process of filling the possible gubernatorial vacancy, if Gov. Manchin is chosen to fill the U.S. Senate seat of the late Robert C. Byrd.
Under possible constitutional interpretations were one that had Senate President Earl Ray Tomlin filling out the remainder of the governor’s term and continuing to retain his post as president of the Senate.
Mike Caputo D-Marion) termed this “bizarre” scenario in which the appointee would serve until the next general election in 2012.
Del. Kelli Sobonya (D-Cabell) agreed with an HNN article that the ambiguities in the Constitution and Code would violate the separation of powers of the Legislative and Executive.
“If Manchin is elected to the Senate to fill Byrd’s unexpired term for two years it could create a constitutional crisis. Earl Ray Tomblin could not serve in both the Senate and as acting Governor for two years [without ] violating the separation of powers clause,” Sobonya told HNN in an e-mail.
Sen. Herb Snyder, co-chairman of the interim committee, has asked that succession laws be revised no matter who wins the Senate seat Nov. 2.
He told the Charleston Gazette, when Byrd was still living , “it was a sensitive area,” Snyder explained adding, many people had been reluctant to address succession laws.
WVU Constitutional Law Professor , Robert Bastress, told HNN earlier this week, that the state constitution contemplated the President of the Senate serving as acting governor for a limited period of time, not a circumstance in which an “acting” governor could hold that title for two years.
“It is also my view, however, that Section 16 contemplated that the Senate President's service as acting governor would only be of short duration and that, if the vacancy occurred in the first three years of a term, a special election must be held to fill the vacancy. Only if the vacancy occurs in the final year of the term could the Senate President act as governor for more than the time required to have a special election.”
Article VII, Section 16 of the WV Constitution reads:
7-16. Vacancy in governorship, how filled.
“In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.”
Robert Bastress has been retained by the Wolfe Administration to author the City of Huntington’s response to the state home rule board regarding questions concerning the occupation tax.
Another confusing issue --- the accomplishment of home rule. The term “home rule” is not synonymous for municipal taxation. It refers to cities having the power to make governing decisions themselves without the necessity for state-wide legislation. All four of the Home Rule cities have enacted laws that have not been forms of taxation. For instance, Wheeling’s city council imposed registration fees on some vacant buildings.
Huntington’s ordinance to address dilapidated housing by withholding a portion of the fire insurance proceeds for clean up, eventually, resulted in state wide negotiated legislation when the insurance companies challenged Huntington’s ordinance.
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Sobonya Agrees with HNN on Separation of Powers Constitutional Crisis
By Tony Rutherford
Huntingtonnews.net Reporter
Huntington, WV (HNN) – Earlier this week at the interim legislative committee hearings, three attorney spoke about the process of filling the possible gubernatorial vacancy, if Gov. Manchin is chosen to fill the U.S. Senate seat of the late Robert C. Byrd.
Under possible constitutional interpretations were one that had Senate President Earl Ray Tomlin filling out the remainder of the governor’s term and continuing to retain his post as president of the Senate.
Mike Caputo D-Marion) termed this “bizarre” scenario in which the appointee would serve until the next general election in 2012.
Del. Kelli Sobonya (D-Cabell) agreed with an HNN article that the ambiguities in the Constitution and Code would violate the separation of powers of the Legislative and Executive.
“If Manchin is elected to the Senate to fill Byrd’s unexpired term for two years it could create a constitutional crisis. Earl Ray Tomblin could not serve in both the Senate and as acting Governor for two years [without ] violating the separation of powers clause,” Sobonya told HNN in an e-mail.
Sen. Herb Snyder, co-chairman of the interim committee, has asked that succession laws be revised no matter who wins the Senate seat Nov. 2.
He told the Charleston Gazette, when Byrd was still living , “it was a sensitive area,” Snyder explained adding, many people had been reluctant to address succession laws.
WVU Constitutional Law Professor , Robert Bastress, told HNN earlier this week, that the state constitution contemplated the President of the Senate serving as acting governor for a limited period of time, not a circumstance in which an “acting” governor could hold that title for two years.
“It is also my view, however, that Section 16 contemplated that the Senate President's service as acting governor would only be of short duration and that, if the vacancy occurred in the first three years of a term, a special election must be held to fill the vacancy. Only if the vacancy occurs in the final year of the term could the Senate President act as governor for more than the time required to have a special election.”
Article VII, Section 16 of the WV Constitution reads:
7-16. Vacancy in governorship, how filled.
“In case of the death, conviction or impeachment, failure to qualify, resignation, or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the Senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.”
Robert Bastress has been retained by the Wolfe Administration to author the City of Huntington’s response to the state home rule board regarding questions concerning the occupation tax.
Another confusing issue --- the accomplishment of home rule. The term “home rule” is not synonymous for municipal taxation. It refers to cities having the power to make governing decisions themselves without the necessity for state-wide legislation. All four of the Home Rule cities have enacted laws that have not been forms of taxation. For instance, Wheeling’s city council imposed registration fees on some vacant buildings.
Huntington’s ordinance to address dilapidated housing by withholding a portion of the fire insurance proceeds for clean up, eventually, resulted in state wide negotiated legislation when the insurance companies challenged Huntington’s ordinance.
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Make HNN Your Homepage (IE Users Only)
