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June 28, 2010
More Byrd: Previous Case on Filling Vacancies May Support Democrats Keeping Unelected Appointee In Seat
From cinyc: There is settled case law on the point. In '94, Kanawha Co. Circuit Court Judge John Hey resigned in April. A local GOP party chairman sued then-Gov. Gaston Caperton (D) to try and compel a special election for the following Nov. The state Supreme Court, in Robb v. Caperton, ruled against the local party chairman and said Caperton's appointee would serve until the '96 election, when the office would have come up for election anyway. Dusty posts this language, though: (b) Except as otherwise provided in article ten of this chapter, if any vacancy occurs in a partisan office or position other than political party executive committee, which creates an unexpired term for a position which would not otherwise appear on the ballot in the general election, and the vacancy occurs after the close of candidate filing for the primary election but not later than eighty-four days before the general election, a nominee of each political party may be appointed by the executive committee and certified to the proper filing officer no later than seventy-eight days before the general election. Appointments shall be filed in the same manner as provided in subsection (a) of this section, except that the filing fee shall be paid before the appointment is complete. He then comments: In (b), it provides for cases where the standard procedure described in 3-10-3 does not apply. Some might point to the "Except as otherwise provided in article ten of this chapter" saying this supercedes the this provision (b) and it must go through all the standard procedures of an election, but the WV Consitution makes it pretty clear the vacancy must be filled by via the next General Election, which is 2010. This 3-5-19 provision clears the way to the very reasonable, (shortest reasonable) cutoff time of 84 days prior to the next General Election. cinyc counter-points that section ten is the one about the need for the primary, etc., and is the section relied upon to resolve the previous case about a judgeship vacancy.
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