If a West Virginia county commissioner dies and the county commission misses its 30-day deadline to appoint a replacement, can the local party committee nominate the late commissioner's spouse even if she only just recently registered with the party?

Official title

Opinion of the Attorney General on Filling A County Commission Vacancy

Plain-English summary

When a West Virginia county commissioner dies or resigns mid-term, state law gives the county commission 30 days to appoint a replacement, but the appointee must be from the same political party as the departed commissioner and must have been registered with that party for at least 60 days before the vacancy. If the commission misses the 30-day window, the choice shifts to the local party executive committee, which submits a list of three "legally qualified persons" for the commission to choose from.

The Mingo County prosecutor asked whether that 60-day registration rule still applies under the executive-committee fallback in § 3-10-7(b). The setting was a real one: a Republican commissioner had died, his widow was being considered, and she had registered as a Republican only after his death.

The AG concluded the 60-day rule does not carry over to the executive-committee path. "Legally qualified" in subsection (b) means the general qualifications for the office (citizenship, voter eligibility, residency in the magisterial district, the constitutional rule against two commissioners from the same magisterial district), not the specific 60-day timing rule that the legislature placed in subsection (a). The widow could be on the slate.

What this means for you

For county commissions facing a vacancy

You have two distinct procedures. Under subsection (a), within 30 days of the vacancy the commission may appoint someone who is (1) legally qualified for the office, (2) a member of the departed commissioner's party, and (3) registered in that party for at least 60 days before the vacancy. If you do not act within 30 days, you lose your direct appointment power.

Under subsection (b), once the 30 days run, the relevant party executive committee submits three names. Those nominees must be "legally qualified" but the 60-day rule no longer applies. The commission must pick one of the three within 15 days.

If you are weighing whether to make a quick appointment under (a) versus letting the deadline pass to the (b) procedure, recognize you are choosing between (i) commission control with a tighter eligibility filter and (ii) party control with a broader pool. The legislature made these tradeoffs deliberately.

For local party executive committees

When a vacancy comes to you under § 3-10-7(b), your candidate pool is wider than the 30-day-window pool was. You can nominate someone who recently joined your party. The general qualifications still apply, including the constitutional bar against two commissioners from the same magisterial district and the residency requirement in § 7-1-1b(b).

Document your nominees' eligibility. The opinion notes that the AG cannot decide whether a particular individual meets the general qualifications; that is a fact question the commission, and ultimately a court, will look at. Submit your three-name list with information showing each nominee's qualifications.

For potential appointees

If you are being considered for a county commissioner appointment under the (b) procedure, you do not need 60 days of party registration. You do need to satisfy the general qualifications: state citizenship, eligibility to vote, residency in the proper magisterial district, and the rule that no two sitting commissioners can come from the same magisterial district. Some of these (especially the residency and magisterial-district rules) can disqualify a nominee unexpectedly. Verify your eligibility before allowing your name to go forward.

For prosecuting attorneys

This opinion lays out a clean reading: the (a)-(b) distinction matters. If a county commission asks you whether the 60-day rule applies during the executive-committee phase, the AG's answer is no. The reasoning relies on the canon of construction from State ex rel. Riffle v. Ranson: when the legislature attaches a requirement to one specific subsection and omits it from a parallel subsection, courts assume the omission was intentional.

Common questions

What does "legally qualified" mean for county commissioner?

The Constitution requires office-holders to be citizens entitled to vote (Art. IV, § 4). For county commissioner specifically: no two commissioners may serve from the same magisterial district (Art. IX, § 10), and a commissioner must reside in the magisterial district they represent at the time they file or are appointed (W. Va. Code § 7-1-1b(b)). The AG noted that the West Virginia Supreme Court of Appeals has not formally ruled on whether the magisterial-district and residency rules bind appointees as well as elected commissioners, but a court would very likely apply them.

Why does the 60-day party-registration rule exist at all?

It is meant to prevent partisan gaming of the direct-appointment process. If a Democratic majority commission could appoint anyone who registered as a Republican the day before, party balance could be undermined. The 60-day window forces a meaningful party affiliation, but only when the commission itself is making the call. Once the choice shifts to the party's own executive committee, that policing function is no longer needed because the party itself is choosing.

What if there are no qualified party members willing to serve?

The statute does not address that contingency directly. In practice, the executive committee chooses the best three available from its membership; if no qualified members exist, the committee should consult counsel.

Can the commission reject all three names from the executive committee?

The statute says the commission "shall appoint a candidate from the list to fill the vacancy" within 15 days. The opinion does not address what happens if the commission deadlocks or refuses, but a court would likely treat the obligation to appoint as mandatory.

Does this analysis change if the deceased commissioner was unaffiliated or independent?

The opinion does not address that question. § 3-10-7 is structured around party-based appointment, so an unaffiliated vacancy could raise different procedural questions worth a separate look.

Background and statutory framework

West Virginia Code § 3-10-7 sets up a two-stage process for filling mid-term vacancies on county commissions:

Stage 1: direct appointment by the commission (subsection (a)): Within 30 days of the vacancy, the commission may appoint a replacement who has been a member of the departed commissioner's party for at least 60 days prior to the vacancy.

Stage 2: appointment from a party executive committee list (subsection (b)): If the commission fails to act within 30 days, the relevant party's county executive committee submits a list of three "legally qualified persons" to fill the vacancy, and the commission must appoint one of the three within 15 days.

The statutory drafting choice that drives this opinion is straightforward: the 60-day rule appears only in subsection (a). The opinion applies the canon from State ex rel. Riffle v. Ranson, 195 W. Va. 121 (1995): "If the Legislature explicitly limits application of a doctrine or rule to one specific factual situation and omits to apply the doctrine to any other situation, courts should assume the omission was intentional." The canon, plus the policy logic (the 60-day rule polices commissions, not party committees), confirms that "legally qualified" in (b) carries only general office qualifications.

The factual setting was the death of Republican Mingo County Commissioner Gavin Smith on June 7, 2021. The commission did not appoint within 30 days. Smith's widow was being considered for the executive committee's slate; she had only registered as a Republican after her husband's death. Under the AG's reading, her recent registration did not disqualify her at the (b) stage.

Citations

• W. Va. Code § 3-10-7 (filling vacancies in office of county commissioner)
• W. Va. Code § 3-10-7(a) (direct commission appointment, 30-day window, 60-day party-membership rule)
• W. Va. Code § 3-10-7(b) (executive-committee three-name list, 15-day commission decision)
• W. Va. Code § 5-3-2 (Attorney General's authority to advise prosecuting attorneys)
• W. Va. Code § 7-1-1b(b) (residency requirement for county commissioners)
• W. Va. Const. art. IV, § 4 (only voters may hold state, county, or municipal office)
• W. Va. Const. art. IX, § 10 (no two commissioners from the same magisterial district)
• State ex rel. Riffle v. Ranson, 195 W. Va. 121, 464 S.E.2d 763 (1995) (omission canon of construction)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/17636/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

August 6, 2021

The Honorable Jonathan "Duke" Jewell
Mingo County Prosecuting Attorney
78 East 2nd Avenue, Suite 201
Williamson, WV 25661

Dear Prosecutor Jewell:

You asked for an Opinion of the Attorney General about whether, pursuant to West Virginia Code § 3-10-7(b), the wife of a deceased Mingo County Commissioner is a "legally qualified person[]" to be appointed to fill out the remainder of the Commissioner's term. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.

In your letter, you explain that in 2020, Gavin Smith, a registered Republican, was elected as a Mingo County Commissioner. He served in that role from January 1, 2021 to June 7, 2021 when he passed away. West Virginia Code § 3-10-7(a) authorizes "[a]ny vacancy in the office of county commissioner . . . [to] be filled by appointment by the county commission," provided that the appointee has been a member of "the same political party with which the person holding the office immediately preceding the vacancy was affiliated" "for at least 60 days prior to the occurrence of the vacancy." Commissioner Smith's widow is being considered to fill the vacancy. Because she was not registered as a Republican until after the vacancy occurred, however, she does not satisfy the 60-day party membership requirement for appointment pursuant to Section 3-10-7(a). Nevertheless, because the Mingo County Commission did not make an appointment within 30 days, Section 3-10-7(b) provides that the Mingo County Republican Executive Committee (the "Executive Committee") may now submit a list of three candidates from which the Commission shall fill the vacancy. Your question centers on whether the 60-day requirement is required under Section 3-10-7(b) as well.

Your request thus raises the following question of law:

Does West Virginia Code 3-10-7(b)'s requirement that individuals selected to fill a vacancy be "legally qualified" include the time requirement for party membership set forth in Section 3-10-7(a)?

We conclude that the term "legally qualified" encompasses general qualifications for the office of county commissioner, but not the additional 60-day party membership requirement that applies when a county commission fills a mid-term vacancy directly.

Discussion

West Virginia Code § 3-10-7(b) provides in relevant part:

If a quorum of the county commission fails to make an appointment within 30 days, the county executive committee of the same political party with which the person holding the office preceding the vacancy was affiliated at the time the vacancy occurred, shall submit a list of three legally qualified persons to fill the vacancy. Within 15 days from the date on which the list is received, the county commission shall appoint a candidate from the list to fill the vacancy.

This subsection requires that the nominees of the appropriate party's county executive committee be "legally qualified." There are general eligibility requirements for office-holders in the West Virginia Constitution, as well as requirements specific to election as county commissioner. For example, the Constitution allows only "citizens entitled to vote" to hold any state, county, or municipal office. W. Va. Const. art. IV, § 4. There is no doubt that "legally qualified" includes this baseline, constitutional requirement for all offices. For the office of county commissioner specifically, no two county commissioners may be elected from the same magisterial district, see W. Va. Const. art. IX, § 10, and a commissioner must reside in the magisterial district for which he or she is seeking to serve at the time he or she files a candidate announcement or (in the case of a ballot vacancy) is appointed, W. Va. Code § 7-1-1b(b). These office-specific provisions concern the election process and do not explicitly reference the nomination and appointment process provided in Section 3-10-7. Further, the Supreme Court of Appeals of West Virginia has not addressed whether these requirement apply outside the election context, so it is possible that they might not apply to the type of appointment at issue here. Nevertheless, because these requirements concern fair representation for constituents across the county and govern the ordinary and most common situations for selecting commissioners, it is extremely likely that a reviewing court would conclude that they are also part of what it means to be "legally qualified" for the office of county commissioner. It does not appear from your letter that this question is at issue here, however, so this Opinion need not address it further.

Your letter does not include information about the potential appointee specific to these or any other generally applicable requirements and thus this Opinion cannot answer whether she satisfies them. As long as she meets the Code's general requirements, however, she is likely "legally qualified" for nomination by the Executive Committee as a candidate for the vacancy on the Mingo County Commission.

Subsection 7(a)'s requirement that the potential replacement be registered as a member of that party "for at least 60 days prior to the occurrence of the vacancy" stands in contrast to these more general qualifications. There is no indication that the Legislature intended the 60-day time period to apply outside this one method of filling a vacancy. After all, "[i]f the Legislature explicitly limits application of a doctrine or rule to one specific factual situation and omits to apply the doctrine to any other situation, courts should assume the omission was intentional." State ex rel. Riffle v. Ranson, 195 W. Va. 121, 128, 464 S.E.2d 763, 770 (1995). The Legislature's failure to repeat the requirement in the very next subsection is strong evidence it did not intend for the 60-day requirement to apply more generally. There is also good reason for different rules under the two methods: Unlike when a county commission fills a vacancy, where a majority of commissioners may be members of other political parties, the subsection (b) process allows the relevant party's executive committee to select the slate of nominees itself.

Thus, potential appointees are "legally qualified" for selection under Section 3-10-7(b) where they meet the general qualifications for the office of county commissioner, regardless whether they satisfy additional requirements like the 60-day party membership rule that apply to one specific method of filling a vacancy only. It is therefore immaterial whether the potential nominee has, pursuant to Section 3-10-7(a), been a registered Republican for 60 days prior to the vacancy when assessing whether she is "legally qualified . . . to fill the vacancy" pursuant to subsection 7(b).

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Curtis R. A. Capehart
Deputy Attorney General

Jessica A. Lee
Assistant Solicitor General