Oct. 15, 2010
WV Constitutional Expert Responds to HNN Question on Gubernatorial Succession
By Tony Rutherford
Huntingtonnews.net Reporter
Charleston, WV (HNN) – The WVU constitutional law professor who has authored a definitive volume on the West Virginia Constitution has responded to the potential “conflicts” between the WV Constitution and West Virginia Code. On Wednesday, Oct. 13, at interim legislative meetings attorneys opined that under current interpretations, if Gov. Joe Manchin wins the U.S. Senate seat of Robert C. Byrd, the current president of the WV Senate , Earl Ray Thompson, would serve most of the remaining two years of Manchin’s term.
Robert Bastress, who has been retained to complete Huntington’s Home Rule certifications to the State Board, referred to “specific provisions in Article VII, Section 16” of the West Virginia Constitution for “qualifies the more general statement in Article V.”
Under the scenario of vagueness in holding a special election for governor, HNN questioned how the Senate President as Acting Governor could retain both positions for up to two years without violating the Separation of Powers Doctrine.
“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, had 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.” However, 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.
However, the ambiguity about the WHEN of the election and conflicts could lead to an unknown result. At the interim session, one legislator called the circumstance “bizarre” and another opined that a legislative fix would be necessary to quantify the process.
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WV Constitutional Expert Responds to HNN Question on Gubernatorial Succession
By Tony Rutherford
Huntingtonnews.net Reporter
Charleston, WV (HNN) – The WVU constitutional law professor who has authored a definitive volume on the West Virginia Constitution has responded to the potential “conflicts” between the WV Constitution and West Virginia Code. On Wednesday, Oct. 13, at interim legislative meetings attorneys opined that under current interpretations, if Gov. Joe Manchin wins the U.S. Senate seat of Robert C. Byrd, the current president of the WV Senate , Earl Ray Thompson, would serve most of the remaining two years of Manchin’s term.
Robert Bastress, who has been retained to complete Huntington’s Home Rule certifications to the State Board, referred to “specific provisions in Article VII, Section 16” of the West Virginia Constitution for “qualifies the more general statement in Article V.”
Under the scenario of vagueness in holding a special election for governor, HNN questioned how the Senate President as Acting Governor could retain both positions for up to two years without violating the Separation of Powers Doctrine.
“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, had 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.” However, 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.
However, the ambiguity about the WHEN of the election and conflicts could lead to an unknown result. At the interim session, one legislator called the circumstance “bizarre” and another opined that a legislative fix would be necessary to quantify the process.
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