By Dale W. Steager, as published in IOGA of West Virginia newsletter, February 2011

On January 18, 2011, the West Virginia Supreme Court of Appeal decided State ex rel. West Virginia Citizens Action Group, et al. v. Earl Ray Tomblin, et al., Docket No. 101494. In this case, the Citizens Action Group and others were seeking an order from the court to compel Earl Ray Tomblin, et al., to call for a special election in 2011 to fill the vacancy in the office of governor that exists due to the resignation,on November 15, 2010, of former Governor Joe Manchin, III, who was elected earlier that month to the United States Senate to fill the unexpired term of Senator Robert C. Byrd, who passed away June 28, 2010. The Court agreed with the Citizens Action Group. Subsequently,on January 24, 2011, Earl Ray Tomblin, Senate President Acting as Governor, issued his proclamation calling for a special election to be held on October 4, 2011, to elect West Virginia’s 35th governor.

The sole issue before the Court was when, under West Virginia law, must a statewide election take place to fill the current vacancy in the office of governor? This issue arose because of an ambiguity in W. Va. Code § 3-10-2 regarding how soon an election must be held to fill a vacancy in the office of governor and a perceived conflict in the State Constitution regarding the role of the Senate president when there is a vacancy in the office of governor doctrine in article V, section 1, of the Constitution, which provides that the “legislative, executive and judicial departments shall be separate and distinct, do that neither shall exercise the powers properly belonging to the other; not shall any person exercise the powers of more than one of them at the same time[.]”

The Senate President and the Senate viewed the separation of powers doctrine as controlling even though the Constitution provides for the Senate president to act as governor when there is a vacancy in the office of governor. Consequently, upon the convening of the Senate, at the start of the 80th Legislature earlier this month, the because of the separation of powers Senate revised its rules to create the office of acting Senate President and to limit the powers of theSenate President during the time he is acting as Governor. This rule change resulted in friction between the Senate and the House of Delegates and, as a consequence, joint rules of the House and Senate have not yet been adopted, as of the date this article was written. Joint rules are necessary for a number of reasons including that they provide for the appointment of conference committees to resolve differences between the House and Senate when a bill is passed by both albeit with different language. Parenthetically, subsequent to the Court’s decision, the Senate amended its rules to restore the powers of the Senate President when he serves as President, such as when he presides over a Senate floor session.

The Court’s decision has provided some important clarity. First, the Court determined that the position of acting governor does not exist under the State Constitution. Second, the Court determined that there is no separation of powers problem because both the separation of powers doctrine and the requirement that the Senate President also act as governor when there is a vacancy in that office are expressly provided for in the Constitution, so long as the Senate President only acts as governor for a limited period of time, which the Court held could not exceed one year.

While the Court’s decision does not resolve the many sub issues in this debate, it affirms the right of the people to select their governor sooner rather than later when that office is vacant.