If a state senator was elected as a Republican but switched to the Democratic Party before resigning, which party gets to submit the list of replacement candidates to the Governor under W. Va. Code § 3-10-5?

Plain-English summary

A West Virginia state senator can switch parties between election and resignation. When the senator resigns, who picks the replacement nominee list, the original party or the new one?

W. Va. Code § 3-10-5(a) says the list comes from "the party executive committee of the party with which the person holding the office immediately preceding the vacancy was affiliated." Read in isolation, "was affiliated" might mean either at election or at resignation. The AG concluded the statute is unambiguous when read in context.

The reasoning rested on three textual moves:

First, the same subsection contains a backstop: if the responsible party fails to submit a timely list within fifteen days, the Governor must appoint someone "of the same political party as the person vacating the office." "Vacating" is a present participle, which expresses action contemporaneous with the resignation, not years before. It would be odd to give the Governor a different anchor (current party) for the backstop than the party committee uses (election-time party) for the primary procedure. Both must point to the same date, the date of vacancy.

Second, subsection (c) tells us where the responsible committee sits: "the state senatorial district in which the vacating senator resided at the time of his or her election or appointment." When the Legislature wanted to lock something to the time of election, it said so expressly. The omission of the same qualifier in the subsection (a) party-affiliation language is meaningful (Banker v. Banker).

Third, statutory history confirms the reading. The pre-2010 single-paragraph version of § 3-10-5 also referenced "the time of . . . election or appointment," but only as a geographic qualifier on the committee, never as a temporal qualifier on party affiliation. The 2010 amendment that broke the paragraph into subsections did not change the substance of the party-affiliation rule.

Finally, the AG surveyed other states' laws. Statutes that anchor to the party at the time of election say so explicitly (Nev. Const. art. IV, § 12: "appoint a person of the same political party as the party which elected"; Md. Const. art. III, § 13: "at the time of the last election or appointment"; N.J. Const. art. IV, § 4, ¶ 1: "of which the incumbent was the nominee"; Ind. Code § 3-13-5-.1(b): "last held by a person elected or selected as a candidate of a political party"). Where state courts have read in an "election-time" rule, they have done so against ambiguous language ("the political party . . . belonged" without further context: Richards; "the party": Wilson v. Sebelius). West Virginia's statute is more specific.

Net result: the party committee for the senator's current party at the time of resignation submits the list. If that party fails to submit within fifteen days, the Governor appoints someone of that same current party.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The legislative-vacancy statute has been amended in subsequent sessions, and the political dynamics around mid-term party switching shifted considerably during the 2016-2024 period. Anyone advising on a current vacancy should pull the present text of W. Va. Code § 3-10-5 and check for later amendments and any superseding AG opinions or judicial decisions.

Common questions

Q: What text in the statute does the analysis turn on?
A: Three sentences. First, § 3-10-5(a) tells the responsible "party executive committee of the party with which the person holding the office immediately preceding the vacancy was affiliated" to submit a list of three candidates within fifteen days. Second, the backstop in § 3-10-5(a) directs the Governor, on a missed deadline, to appoint someone "of the same political party as the person vacating the office." Third, § 3-10-5(c) names "the state senatorial district in which the vacating senator resided at the time of his or her election or appointment."

Q: Why does "vacating" do so much work?
A: It is a present participle, which describes action concurrent with the verb in the clause. The AG cited Merriam-Webster and used a hat-and-baseball analogy: "the hat worn by the person hitting the ball" refers to the hat worn during the at-bat, not a hat worn years earlier. The "person vacating the office" is the person at the moment of resignation, with whatever party affiliation they then have.

Q: What about the 1963-2010 single-paragraph version of the statute?
A: It also referenced "the time of . . . election or appointment," but only to specify which senatorial district was relevant for purposes of the responsible committee. The "party . . . affiliated" language stood unqualified by election timing then, just as it does now. The 2010 split into subsections preserved the substance.

Q: How did other states' statutes inform the analysis?
A: They confirmed that when a legislature wants to anchor to the party at time of election, it says so. Nevada, Maryland, New Jersey, and Indiana all use express language tying the appointment to the party at election or candidacy. Where courts read in an election-time rule, they did so against bare references to "the political party" with no further temporal anchor (Richards v. Bd. of Cnty. Comm'rs of Sweetwater Cnty. in Wyoming; Wilson v. Sebelius in Kansas). West Virginia's text is more specific.

Q: Has this scenario actually happened in West Virginia?
A: The opinion notes a related history involving Senator Helmick (later Agriculture Commissioner). When he resigned, there was no dispute over party (he was Democratic), but subsection (c) controlled which county committees of the Democratic party participated in the list because of intervening redistricting. The opinion uses Helmick to illustrate how subsection (c) operates on geography.

Q: Could a court reach a different conclusion under different facts?
A: AG opinions are persuasive but not binding. The Supreme Court of Appeals had not yet interpreted the statute as of January 2016. A court might nonetheless reach the same conclusion: the textual analysis is detailed, the participle argument is straightforward, and the comparison to other states' explicit language is hard to dismiss.

Q: What are the deadlines under the statute?
A: Per § 3-10-5(a), the responsible party committee has fifteen days from the vacancy to submit a list of three legally qualified persons; the Governor then has five days to appoint from that list. If the list is not submitted within fifteen days, the Governor appoints within five days thereafter, choosing someone of the same political party as the vacating member. Anyone working a present-day vacancy should verify these deadlines in the current statute.

Background and statutory framework

The statute. W. Va. Code § 3-10-5 governs appointments to fill mid-term vacancies in the West Virginia Legislature. Subsection (a) sets the general procedure: a list of three from the party executive committee, with a Governor-appointment backstop on missed deadlines. Subsection (b) handles House of Delegates vacancies; subsection (c) handles Senate vacancies and identifies the appropriate senatorial district.

Statutory history. The 1963 version, Ch. 64, Acts of the Legislature, 1963, at 377, was a single paragraph that combined the elements now split across (a), (b), and (c). The 2010 amendment, Ch. 78, Acts of the Legislature, 2010, at 950, split the paragraph into three subsections without changing the substance of the party-affiliation language.

Statutory construction framework. Courts begin with whether the language is ambiguous. Bd. of Trustees of Firemen's Pension & Relief Fund of City of Fairmont v. City of Fairmont (2004); State ex rel. Hall v. Schlaegel (1998). Ambiguity exists where a provision "is susceptible of two reasonable constructions." Lawson v. Cnty. Comm'n of Mercer Cnty. (1996). Mere informality or clumsiness does not create ambiguity if "the language imports one meaning or intention with reasonable certainty." Jessee v. Aycoth (1998); State v. Harden (1907). Disagreement about meaning does not itself create ambiguity. T. Weston, Inc. v. Mineral Cnty. (2006); State v. Chapman (2013).

Statutes are read in context, not by isolating words. In re Estate of Lewis (2005); Fruehauf Corp. (1975). Courts do not add to statutes language the Legislature omitted. Banker v. Banker (1996). Unambiguous statutes are applied as written. State ex rel. Corp. of Charles Town v. Sanders (2009).

Comparative state law. Express anchor-to-election states: Nev. Const. art. IV, § 12; Md. Const. art. III, § 13; N.J. Const. art. IV, § 4, ¶ 1; Ind. Code § 3-13-5-.1(b). Ambiguous statutes that courts construed to anchor to election: Wyo. Stat. (interpreted in Richards v. Bd. of Cnty. Comm'rs of Sweetwater Cnty., 6 P.3d 1251 (Wyo. 2000)); Kan. Stat. (interpreted in Wilson v. Sebelius, 72 P.3d 553 (Kan. 2003)).

Citations

• W. Va. Code §§ 5-3-1; 3-10-5
• W. Va. Code § 3-10-5 (1963), Ch. 64, Acts of the Legislature, 1963; Ch. 78, Acts of the Legislature, 2010
• Bd. of Trustees of Firemen's Pension & Relief Fund of City of Fairmont v. City of Fairmont, 215 W. Va. 366 (2004)
• State ex rel. Hall v. Schlaegel, 202 W. Va. 93 (1998)
• Lawson v. Cnty. Comm'n of Mercer Cnty., 199 W. Va. 77 (1996)
• Jessee v. Aycoth, 202 W. Va. 215 (1998)
• State v. Harden, 62 W. Va. 313 (1907)
• T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564 (2006)
• State v. Chapman, No. 13-0111, 2013 WL 5676630 (W. Va. Oct. 18, 2013)
• In re Estate of Lewis, 217 W. Va. 48 (2005)
• Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14 (1975)
• Banker v. Banker, 196 W. Va. 535 (1996)
• State ex rel. Corp. of Charles Town v. Sanders, 224 W. Va. 630 (2009)
• Richards v. Bd. of Cnty. Comm'rs of Sweetwater Cnty., 6 P.3d 1251 (Wyo. 2000)
• Wilson v. Sebelius, 72 P.3d 553 (Kan. 2003)

Source

• Landing page: https://ago.wv.gov/media/17881/download?inline
• Original PDF: https://ago.wv.gov/media/17881/download?inline

Original opinion text

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

January 5, 2016

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

The Honorable William P. Cole III
President of the Senate
Building 1, Room 229M
1900 Kanawha Boulevard, East
Charleston, WV 25305

Dear President Cole:

You have asked for an Opinion of the Attorney General regarding the filling of a vacancy created by the resignation of a State Senator who was elected as a member of one political party but was affiliated with another political party at the time of his or her resignation. This Opinion is being issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General shall "render to the president of the Senate and/or the speaker of the House of Delegates a written opinion or advice upon any questions submitted to the attorney general by them or either of them whenever he or she is requested in writing so to do." To the extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your correspondence with the Attorney General's Office.

In your letter, you suggest that West Virginia law designates the political party of the State Senator at the time of resignation as the state party responsible for submitting a list of potential replacements to the Governor. You point to West Virginia Code § 3-10-5, which is entitled "Vacancies in the State Legislature." In particular, you note that subsection (a) states that the "party executive committee of the party with which the person holding office immediately preceding the vacancy was affiliated" would be responsible for submitting a list of three potential replacements to the Governor. Based on this language, you believe that the responsible political party is the one to which the State Senator belonged at the time of his or her resignation.

Your letter raises the following legal question:

Which political party is responsible for submitting a list of potential replacements to the Governor to fill a vacancy created by the resignation of a State Senator who was elected to office as a member of one political party but was affiliated with another political party at the time of his or her resignation?

As you note, the relevant statutory provision is West Virginia Code § 3-10-5. In its entirety, the provision reads:

(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 the office immediately preceding the vacancy was affiliated. 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.

(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.

W. Va. Code § 3-10-5 (emphases added). We are aware of no cases of the West Virginia Supreme Court of Appeals that have interpreted this statutory provision. The provision is mentioned in several previous Attorney General Opinions, but none of those addresses the question you pose. See 2013 WL 1287948 (Jan. 13, 2013); 63 W. Va. Op. Att'y Gen. No. 19 (Nov. 6, 1989); 53 W. Va. Op. Att'y Gen. 93 (Sept. 12, 1968).

Our first task is to "determine whether the language at issue is ambiguous." Bd. of Trustees of Firemen's Pension & Relief Fund of City of Fairmont v. City of Fairmont, 215 W. Va. 366, 370, 599 S.E.2d 789, 793 (2004); see also State ex rel. Hall v. Schlaegel, 202 W. Va. 93, 96, 502 S.E.2d 190, 193 (1998) ("As with all issues of statutory construction, we must first determine whether the language at issue presents any ambiguity."). That is true where a statutory provision "is susceptible of two reasonable constructions." Firemen's Pension & Relief Fund, 215 W. Va. at 370, 599 S.E.2d at 793 (emphasis added); Lawson v. Cnty. Comm'n of Mercer Cnty., 199 W. Va. 77, 81, 483 S.E.2d 77, 81 (1996) (finding ambiguity where a "statute can be read by reasonable persons to have different meanings"). Thus, "[m]ere informality in phraseology or clumsiness of expression does not make it ambiguous, if the language imports one meaning or intention with reasonable certainty." Jessee v. Aycoth, 202 W. Va. 215, 218, 503 S.E.2d 528, 531 (1998) (quoting Syl. Pt. 13, State v. Harden, 62 W. Va. 313, 58 S.E. 715 (1907)). Similarly, "[t]he fact that parties disagree about the meaning of a statute does not itself create ambiguity or obscure meaning." T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564, 568, 638 S.E.2d 167, 171 (2006) (citation omitted); see also State v. Chapman, No. 13-0111, 2013 WL 5676630, at *4 (W. Va. Oct. 18, 2013) ("[a] statute is not ambiguous simply because different interpretations are conceivable" (internal quotations omitted)).

With respect to the question you ask, we do not find the statute to be ambiguous, as we believe "the language imports one meaning or intention with reasonable certainty." Jessee, 202 W. Va. at 218, 503 S.E.2d at 531. Heeding the instruction of our Supreme Court of Appeals to read statutory language "in context," In re Estate of Lewis, 217 W. Va. 48, 53, 614 S.E.2d 695, 700 (2005), and not to focus on "any single part, provision, section, sentence, phrase or word," Syl. Pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d 907 (1975), our conclusion is informed by three sentences in the statute. First, "[a]ny vacancy in the office of State Senator . . . 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 the office immediately preceding the vacancy was affiliated." W. Va. Code § 3-10-5(a) (emphasis added). Second, "[i]f 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." Id. (emphasis added). Third, "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." Id. § 3-10-5(c) (emphasis added). As explained in detail below, these three sentences together convey "with reasonable certainty" that the political party responsible for the list of potential replacements is the one to which the State Senator belonged at the time of his or her resignation. Jessee, 202 W. Va. at 218, 503 S.E.2d at 531.

Standing alone, the first sentence is arguably ambiguous. That sentence in subsection (a) states that the list of potential replacements is to come from the party executive committee "of the party" with which "the person holding the office immediately preceding the vacancy was affiliated." W. Va. Code § 3-10-5(a). We believe this language suggests that the appropriate political party should be determined by identifying the party affiliation of the vacating senator at the time "immediately preceding the vacancy." Without more context, however, we recognize that the phrase "was affiliated" might be understood one of two ways: to refer to the senator's party affiliation at the time of election or appointment, or to the senator's party affiliation at the time of the vacancy.

But the second sentence, which follows later in subsection (a), makes clear that the Legislature intended for a vacated Senate seat to remain of the same political party that it was at the time of the vacancy. When a list of potential replacements is not timely submitted to the Governor by the responsible political party, the Governor is restricted to appointing a person "of the same political party as the person vacating the office." Id. By using the word "vacating", a present participle, the statute refers unambiguously to the political party of the person at the time of vacancy. See Merriam Webster Online, Present Participle (defining "present participle" as "a participle that typically expresses present action in relation to the time expressed by the finite verb in its clause"). For example, if an announcer referred to "the hat worn by the person hitting the ball," the announcer would clearly be referring to the hat worn by the person in the act of hitting the ball, not to the hat worn by that person months or years earlier. This sentence thus plainly limits the Governor, in the absence of a timely-submitted list of potential replacements, to appointing a replacement from the political party with which the previous senator was affiliated at the time of the vacancy. It would make no sense for a different rule to apply to determining the political party responsible for submitting the list of potential replacements.

Were there any remaining doubt, the third sentence provides yet more context confirming the Legislature's intent for a replacement senator to come from the political party with which the vacating senator was affiliated at the time of the vacancy. In contrast to the first sentence, this sentence from subsection (c) addresses not the identity of the responsible political party but the location of the specific party executive committee responsible for the list, and it expressly qualifies that location as "the senatorial district" in which the vacating senator resided at "the time of his or her election or appointment." W. Va. Code § 3-10-5(c). This sentence shows that the Legislature knew how to (and did) specify "the time of . . . election or appointment" when it saw fit to do so. Id. The Legislature specifically did not include that same qualifier when referring to the vacating senator's party affiliation in subsection (a), and our Supreme Court of Appeals has made clear that "we are obliged not to add to statutes something the Legislature purposely omitted." Banker v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996).

In sum, reading the statute in its entirety, as we must, we find that the statute can only be reasonably understood to refer to a vacating senator's party affiliation at the time of the vacancy. The statute is therefore unambiguous as to the question you pose, and "it should be applied as written." State ex rel. Corp. of Charles Town v. Sanders, 224 W. Va. 630, 633, 687 S.E.2d 568, 571 (2009).

Our conclusion is bolstered by a review of the statutory history. Prior to an amendment in 2010, West Virginia Code § 3-10-5 consisted only of a single paragraph first enacted in 1963. Ch. 64, Acts of the Legislature, 1963, at 377. In pertinent part, it read:

Any vacancy in the office of State Senator or member of the House of Delegates shall be filled by appointment by the Governor, in each instance from a list of three legally qualified persons submitted by the party executive committee of the delegate district in the case of a member of the House of Delegates, and by the party executive committee of the state senatorial district in the case of a state senator, of the party with which the person holding the office immediately preceding the vacancy was affiliated, and of the county or state senatorial district, respectively, in which he resided at the time of his election or appointment.

W. Va. Code § 3-10-5 (1963). Like today's version of the statute, the pre-2010 version provided that the list of potential replacements was to be submitted by the party executive committee "of the party with which the person holding the office immediately preceding the vacancy was affiliated," and "of the . . . state senatorial district . . . in which [that person] resided at the time of his election or appointment." Though the pre-2010 statute included a reference to "the time of . . . election or appointment," that reference did not qualify the party affiliation language. In 2010, the Legislature essentially broke this paragraph into the three subsections that exist today, but did not change the substance. See Ch. 78, Acts of the Legislature, 2010, at 950. This statutory history confirms that the Legislature has knowingly chosen not to tie the replacement candidate to the former senator's party affiliation at the time of his or her election or appointment.

We also find support in a review of the laws of other States, which shows that our State's law is very different from those that have been construed to require vacancies to be filled by the party at the time of election or appointment. Some States have laws that expressly provide that the party at the time of election fills a vacancy. See, e.g., Nev. Const. art. IV, § 12 ("In case of the death or resignation of any member of the legislature, either senator or assemblyman, the county commissioners of the county from which such member was elected shall appoint a person of the same political party as the party which elected such senator or assemblyman to fill such vacancy" (emphasis added)); Md. Const. art. III, § 13 ("the Governor shall appoint a person to fill such vacancy from a person whose name shall be submitted to him in writing, within thirty days after the occurrence of the vacancy, by the Central Committee of the political party, if any, with which the Delegate or Senator, so vacating, had been affiliated, at the time of the last election or appointment of the vacating Senator or Delegate" (emphasis added)); N.J. Const. art. IV, § 4, ¶ 1 ("the vacancy shall be filled within 35 days by the members of the county committee of the political party of which the incumbent was the nominee from the municipalities or districts or units thereof which comprise the legislative district" (emphasis added)); Ind. Code § 3-13-5-.1(b) ("A vacancy in a legislative office that was last held by a person elected or selected as a candidate of a political party described by IC 3-8-4-10 shall be filled by the state committee of the political party." (emphasis added)). In other States, where courts have read that requirement into their states' laws, the laws have been truly ambiguous, referring without any other context or elaboration to "the party" or "the political party" of the previous official. See Richards v. Bd. of Cnty. Comm'rs of Sweetwater Cnty., 6 P.3d 1251 (Wyo. 2000) (interpreting statute that referred simply to "the political party to which the member whose office is vacant belonged"); Wilson v. Sebelius, 72 P.3d 553 (Kan. 2003) (interpreting statute that referred only to "the party"). In contrast, our statute expressly references "the time of . . . election or appointment" but does not apply that qualifier to the vacating official's party affiliation, and also provides ample other context that makes clear that the party at the time of the vacancy fills the vacancy.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

Erica N. Peterson
Assistant Attorney General