Oct. 14, 2010
Interim Legislative Committees Told No Special Election for Governor
Senate President Could Serve Two Positions and Not Violate Separation of Powers
By Tony Rutherford
Huntingtonnews.net Reporter
Charleston, WV (HNN) – Legislators attending interim meetings in Charleston learned that an ambiguity in the State Constitution would allow an interim appointee to effectively finish all but two months of the governor’s term.
But, the state constitution and state statutes appear to create what one delegate (Mike Caputo D-Marion) has termed a “bizarre” scenario in which the appointee (the WV Senate President) would serve until the next general election in 2012, when a “special election” would fill the two remaining months of the appointee’s term.
He told the Charleston Gazette, “I think any person would look at that and say, ‘that’s crazy.”
Expert attorneys have signaled that the Senate President appointed Governor could continue serving as Senate President too.
STOP. REWIND.
The governor would also be the Senate President?
Article 5-1 of the WV Constitution states under Division of Powers: “The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.
CONSTITUTION VACANCY
WV CONSTITUTION Article 7-16 “Vacancy in governorship, how filled,” states: “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.”
WV CODE states under 3-10-2, “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…If the vacancy shall occur more than thirty days next preceding a general election, the vacancy shall be filled at such election and the acting governor for the time being shall issue a proclamation accordingly [comply with county published legal notice requirements] … But if it shall occur less than thirty days next preceding such general election, and more than one year before the expiration of the term, such acting governor shall issue a proclamation, fixing a time for a special election to fill such vacancy, which shall be published as hereinbefore provided.” http://www.sos.wv.gov/PUBLIC-SERVICES/EXECRECORDS/APPOINTMENTS/Pages/WVCodeAppointments.aspx
IF MANCHIN WINS ...
This scenario would occur should WV Gov. Joe Manchin win the special election to fill the last two years of the late Sen. Robert C. Byrd’s seat.
Earl Ray Tomblin would be the acting governor until the general election in 2012.
Robert Bastress, a WVU law professor and WV constitutional expert, has been quoted in the Charleston Gazette concurring that if the governor leaves within the first three years of his term “a new election for governor shall take place to fill the vacancy.” The Constitution does not state WHEN, and, Bastress believes that the lengthy term of the temporarily acting governor conflicts in the Code conflicts with the Constitution.
What’s now left to the legislature is do we pass a bill (like upon Byrd’s death) to clarify the ambiguity.
GOV ROCKEFELLER AND SUCCESSION
Ironically, the governor succession issue reached the WV Supreme Court of Appeals in 1984 under a circumstance when then Gov. Jay Rockefeller had won election as a U.S. Senator. Under the facts of that case, Gov. Rockefeller’s term did not expire until January 14, 1985, yet the U.S. Senate convened January 3, 1985.
By a double twist of irony, Rockefeller in 1984 narrowly defeated businessman John Raese for the seat. Rockefeller spent over $12 million to win the Senate seat.
By contrast, Gov. Rockefeller could not seek a third term. Arch Moore would succeed him less than two weeks.
The Court had to determine if the former President of the WV Senate (who did not seek re-election) would serve until Moore took office. Justice Neely wrote that although Warren McGraw’s term as Senate President expired November 30, 1984, he would be the interim governor (if Rockefeller resigned) until “our Senate reconvenes in regular session on January 9, 1985 and a successor is sworn into office.”
Neely termed the case “really about gubernatorial succession.” Although Rockefeller denied he would vacate the governor’s office prematurely, the WV Supreme Court made a ruling “because it is foreseeable that the question of succession may surface again.”
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Interim Legislative Committees Told No Special Election for Governor
Senate President Could Serve Two Positions and Not Violate Separation of Powers
By Tony Rutherford
Huntingtonnews.net Reporter
Charleston, WV (HNN) – Legislators attending interim meetings in Charleston learned that an ambiguity in the State Constitution would allow an interim appointee to effectively finish all but two months of the governor’s term.
But, the state constitution and state statutes appear to create what one delegate (Mike Caputo D-Marion) has termed a “bizarre” scenario in which the appointee (the WV Senate President) would serve until the next general election in 2012, when a “special election” would fill the two remaining months of the appointee’s term.
He told the Charleston Gazette, “I think any person would look at that and say, ‘that’s crazy.”
Expert attorneys have signaled that the Senate President appointed Governor could continue serving as Senate President too.
STOP. REWIND.
The governor would also be the Senate President?
Article 5-1 of the WV Constitution states under Division of Powers: “The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.
CONSTITUTION VACANCY
WV CONSTITUTION Article 7-16 “Vacancy in governorship, how filled,” states: “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.”
WV CODE states under 3-10-2, “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…If the vacancy shall occur more than thirty days next preceding a general election, the vacancy shall be filled at such election and the acting governor for the time being shall issue a proclamation accordingly [comply with county published legal notice requirements] … But if it shall occur less than thirty days next preceding such general election, and more than one year before the expiration of the term, such acting governor shall issue a proclamation, fixing a time for a special election to fill such vacancy, which shall be published as hereinbefore provided.” http://www.sos.wv.gov/PUBLIC-SERVICES/EXECRECORDS/APPOINTMENTS/Pages/WVCodeAppointments.aspx
IF MANCHIN WINS ...
This scenario would occur should WV Gov. Joe Manchin win the special election to fill the last two years of the late Sen. Robert C. Byrd’s seat.
Earl Ray Tomblin would be the acting governor until the general election in 2012.
Robert Bastress, a WVU law professor and WV constitutional expert, has been quoted in the Charleston Gazette concurring that if the governor leaves within the first three years of his term “a new election for governor shall take place to fill the vacancy.” The Constitution does not state WHEN, and, Bastress believes that the lengthy term of the temporarily acting governor conflicts in the Code conflicts with the Constitution.
What’s now left to the legislature is do we pass a bill (like upon Byrd’s death) to clarify the ambiguity.
GOV ROCKEFELLER AND SUCCESSION
Ironically, the governor succession issue reached the WV Supreme Court of Appeals in 1984 under a circumstance when then Gov. Jay Rockefeller had won election as a U.S. Senator. Under the facts of that case, Gov. Rockefeller’s term did not expire until January 14, 1985, yet the U.S. Senate convened January 3, 1985.
By a double twist of irony, Rockefeller in 1984 narrowly defeated businessman John Raese for the seat. Rockefeller spent over $12 million to win the Senate seat.
By contrast, Gov. Rockefeller could not seek a third term. Arch Moore would succeed him less than two weeks.
The Court had to determine if the former President of the WV Senate (who did not seek re-election) would serve until Moore took office. Justice Neely wrote that although Warren McGraw’s term as Senate President expired November 30, 1984, he would be the interim governor (if Rockefeller resigned) until “our Senate reconvenes in regular session on January 9, 1985 and a successor is sworn into office.”
Neely termed the case “really about gubernatorial succession.” Although Rockefeller denied he would vacate the governor’s office prematurely, the WV Supreme Court made a ruling “because it is foreseeable that the question of succession may surface again.”
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