WEST virginia Legislature
2017 regular session
By
to the Committee on the Judiciary]
A BILL to amend and
reenact §3-10-5, §3-10-6, §3-10-7 and §3-10-8 of the Code of West Virginia,
1931, as amended, all relating to requiring vacancies in the House of
Delegates, State Senate, circuit court clerk, county commission, county clerk,
prosecuting attorney, sheriff, assessor or county surveyor be filled by a
person affiliated with the same party as the person vacating the office was
affiliated at the time of his or her last election to the office or if not elected
at the time of his or her appointment.
Be it enacted by the
Legislature of West Virginia:
That §3-10-5, §3-10-6, §3-10-7
and §3-10-8 of the Code of West Virginia, 1931, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 10. FILLING
VACANCIES.
§3-10-5. Vacancies in
State Legislature.
(a) Any vacancy in the
office of State Senator or member of the House of Delegates shall be filled by
appointment by the Governor, from a list of three legally qualified persons
submitted by the party executive committee of the party with which the person holding
vacating the office immediately preceding the vacancy was
affiliated at the time of his or her election to the vacated office: Provided,
That if he or she was not elected to the office, then the list shall be
submitted by the same executive committee authorized to submit the list
resulting in his or her appointment. The list of qualified persons to fill
the vacancy shall be submitted to the Governor within fifteen days after the
vacancy occurs and the Governor shall duly make his or her appointment to fill
the vacancy from the list of legally qualified persons within five days after
the list is received. If the list is not submitted to the Governor within the
fifteen-day period, the Governor shall appoint within five days thereafter a
legally qualified person of the same political party as the person vacating the
office was affiliated at the time of his or her last election to the vacated
office: Provided, That if he or she
was not elected to the office, then the Governor shall appoint a person from
the same political party as the executive committee authorized to submit the
list resulting in his or her appointment.
(b) In the case of a member
of the House of Delegates, the list shall be submitted by the party executive
committee of the delegate district in which the vacating member resided at the
time of his or her election or appointment. The appointment to fill a vacancy
in the House of Delegates is for the unexpired term.
(c) In the case of a State
Senator, the list shall be submitted by the party executive committee of the
state senatorial district in which the vacating senator resided at the time of
his or her election or appointment. The appointment to fill a vacancy in the
state Senate is for the unexpired term, unless section one of this article
requires a subsequent election to fill the remainder of the term, which shall
follow the procedure set forth in section one of this article.
§3-10-6. Vacancy in
office of circuit court clerk.
(a) When a vacancy occurs
in the office of clerk of the circuit court, the circuit court by a majority
vote of the judges shall fill the same within thirty days of the vacancy by
appointment of a person of the same political party as the officeholder
vacating the office was affiliated with at the time of his or her last
election to the vacated office for the period required by section one of
this article: Provided,
That if he or she was not elected to the office, then circuit court shall fill
the position with a person of the same political party as the officeholder
vacating the office was affiliated with at the time of his or her appointment.
(b) Notwithstanding any
code provision to the contrary, the chief judge may appoint a temporary
successor to the office of clerk of the circuit court until the requirements of
this section have been met. The temporary successor may serve no more than
thirty days from the date of the vacancy.
(c) If an election is
necessary, the circuit court, or the chief judge thereof in vacation, is
responsible for the proper proclamation, by order and notice required by
section one of this article.
(d) Section one of this
article shall be followed with respect to any election needed to fill a
vacancy, except that if the vacancy occurs after the primary cutoff date but
not later than the general cutoff date, candidates to fill the vacancy shall be
nominated by the county executive committee in the manner provided in section
nineteen, article five of this chapter, as in the case of filling vacancies in
nominations, and the names of the persons, so nominated and certified to the
clerk of the county commission of the county, shall be placed upon the ballot
to be voted at the next general election.
§3-10-7. Vacancies in
offices of county commissioner and clerk of county commission.
(a) Any vacancy in the
office of county commissioner or clerk of county commission shall be filled by
the county commission of the county, unless the number of vacancies in a county
commission deprive that body of a quorum, in which case the Governor of the
state shall fill any vacancy in the county commission necessary to create a
quorum thereof. Persons appointed shall be of the same political party as the
officeholder vacating the office was affiliated with at the time of his or
her last election to the vacated office for the period stated by section
one of this article: Provided,
That if he or she was not elected to the office, then the person appointed
shall be of the same political party as the officeholder vacating the office
was affiliated with at the time of his or her appointment. If a
quorum of the county commission cannot agree upon a person to fill a vacancy in
the office of county commissioner within thirty days of the date the vacancy
first occurred, the county executive committee of the vacating county
commissioner's political party at the
time of his or her last election to the vacated office shall select and
name a person to fill the vacancy from the membership of the vacating county
commissioner's political party at the
time of his or her last election to the vacated office: Provided, That if he or she was not elected to the office, then the
list shall be submitted by the same executive committee authorized to submit
the list resulting in his or her appointment. The clerk shall be appointed
within thirty days of the vacancy.
(b) Notwithstanding any
code provision to the contrary, a county commission may appoint a temporary
successor to the office of clerk of the county commission until the
requirements of this section have been met. The temporary successor may serve
no more than thirty days from the date of the vacancy.
(c) If an election is
necessary under section one of this article, the county commission, or the
president thereof in vacation, shall be responsible for the proper
proclamation, by order, and notice required by section one of this article.
(d) Section one of this
article shall be followed with respect to any election needed to fill a
vacancy, except that if the vacancy occurs after the primary cutoff date but
not later than the general cutoff date, candidates to fill the vacancy shall be
nominated by the county executive committee in the manner provided in section
nineteen, article five of this chapter, as in the case of filling vacancies in
nominations, and the names of the persons, so nominated and certified to the
clerk of the county commission of the county, shall be placed upon the ballot
to be voted at the next general election.
(e) If the election for an
unexpired term is held at the same time as the election for a full term for
county commissioner, the full term shall be counted first and the unexpired
term shall be counted second. If the candidate with the highest number of votes
for the unexpired term resides in the same magisterial district as the
candidate with the highest number of votes for the full term, the candidate for
the full term shall be seated. The candidate with the next highest number of
votes for the unexpired term residing in a different magisterial district shall
be seated for the unexpired term.
§3-10-8. Vacancies in
offices of prosecuting attorney, sheriff, assessor and surveyor.
(a) Any vacancy occurring
in the office of prosecuting attorney, sheriff, assessor or county surveyor
shall be filled by the county commission within thirty days of the vacancy by
appointment of a person of the same political party as the officeholder
vacating the office was affiliated with at the time his or her last election
to the vacated office: Provided, That
if he or she was not elected to the office, then county commission shall fill
the office by appointment of a person of the same political party as the
officeholder vacating the office was affiliated with at the time of his or her
appointment. The appointed person shall hold the office for the period
stated by section one of this article.
(b) Notwithstanding any
code provision to the contrary, a county commission may appoint a temporary
successor to the office of prosecuting attorney, sheriff, assessor or county
surveyor until the requirements of this section have been met. The temporary
successor may serve no more than thirty days from the date of the vacancy.
(c) If an election is
necessary under section one of this article, the county commission, or the
president thereof in vacation, shall be responsible for the proper
proclamation, by order, and notice required by section one of this article.
(d) Section one of this
article shall be followed with respect to any election needed to fill a
vacancy, except that if the vacancy occurs after the primary cutoff date but
not later than the general cutoff date, candidates to fill the vacancy shall be
nominated by the county executive committee in the manner provided in section
nineteen, article five of this chapter, as in the case of filling vacancies in
nominations, and the names of the persons, so nominated and certified to the
clerk of the county commission of the county, shall be placed upon the ballot
to be voted at the next general election.
NOTE: The purpose of this bill is
to require that vacancies in certain elected offices are filled by a person of
the same political party with which the previous officeholder was affiliated at
the time of the preceding election.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.