When a West Virginia sheriff resigns mid-term, must the county commission appoint someone to fill the vacancy, when must an election be held to choose a permanent successor, and can the commission skip the appointment by holding a special election sooner?

Official title

Opinion of the Attorney General's Office Regarding the Process for Filling a Vacancy in the Office of Sheriff

Plain-English summary

Jefferson County Sheriff Robert Shirley resigned on January 11, 2013, just two months into a four-year term he had won in November 2012. The county commission had to figure out what to do with three years of unexpired term left. The prosecutor sent the AG five questions: Is there a deadline for appointing a replacement? When must an election be held? Can the commission skip the appointment by holding an immediate special election? If a special election is allowed, does it have to be on a specific date? And how would candidates be nominated for a special election?

The AG worked through the questions in order. The first three were dispositive; the last two became moot.

The commission must appoint. W. Va. Const. art. IV, § 7 says vacancies "shall be filled by appointments." W. Va. Code § 3-10-8 says vacancies in the sheriff's office "shall be filled by the county commission by appointment of a person of the same political party as the officeholder vacating the office." "Shall" is mandatory (W. Va. Citizen Action Group v. Tomblin; Terry v. Sencindiver). So the commission has a non-discretionary duty.

There is no specific deadline. The Code sets specific timeframes for filling vacancies in some offices (§ 3-10-4 for members of Congress; § 3-10-5 for state legislators; § 3-10-6 for circuit court clerks; § 3-10-7 for county commissioners), but not for sheriffs. The AG relied on Brotherton v. Moore (governor's two-year delay in appointing a superintendent was unreasonable) for the proposition that mandatory appointments cannot be ignored indefinitely. The commission must "endeavor to proceed with an appointment" "as soon as practicable."

The election to fill the unexpired term must be at the next general election. § 3-10-1 requires elections to fill any unexpired term with more than one year remaining. § 3-10-8 says the appointee "shall hold the office until the next general election is certified." Reading the constitution and the two statutes in pari materia (Miller v. Locke), the AG concluded that the election to fill the unexpired term occurs at the regularly scheduled general election, not at a separately scheduled special election. The next general election was the Tuesday after the first Monday in November 2014.

A special election before November 2014 in lieu of appointing is not allowed. The constitutional and statutory text makes appointment mandatory; an early special election would let the commission avoid that duty. The appointee must serve until the regular general election certifies a successor.

Currency note

This opinion was issued in 2013. 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.

Common questions

Q: Why must the appointee be from the same political party as the resigning sheriff?

A: § 3-10-8 says so plainly: "shall be filled by the county commission by appointment of a person of the same political party as the officeholder vacating the office." The legislature wanted the appointment process to preserve the partisan balance the voters had selected, while still letting the next general election give voters their say.

Q: How does West Virginia's "shall" in election statutes work?

A: The Supreme Court of Appeals has read "shall" in both constitutional and statutory text as mandatory absent contrary indication. W. Va. Citizen Action Group v. Tomblin and Terry v. Sencindiver both confirmed the rule. So once the commission has authority to act, it must act, not just may.

Q: What does "as soon as practicable" mean in this context?

A: The AG did not put a date on it, because the statute does not. The benchmark is reasonableness. Brotherton v. Moore showed the outer edge: a two-year delay was too long. A few weeks to identify a candidate, vet qualifications, and act is presumably reasonable. Months without action would invite a mandamus suit.

Q: Why does the election have to wait until the November 2014 general election?

A: § 3-10-8 ties the appointee's term to "the next general election . . . certified." § 3-10-1 says elections to fill vacancies happen when more than one year remains. § 3-10-6 (which § 3-10-8 cross-references for nomination procedures) refers to "the general election, at which any vacancy is to be filled." Reading them in pari materia (Miller v. Locke), the election to fill an unexpired sheriff's term coincides with the regular general election. Holding it earlier would render parts of the constitution and statutes superfluous.

Q: What if the commission cannot agree on an appointee?

A: The opinion does not address that scenario for sheriffs because the question wasn't asked. § 3-10-7 (county commissioner vacancies) provides a thirty-day rule and a fallback to the county executive committee of the vacating commissioner's party. The sheriff's vacancy provision (§ 3-10-8) does not have an explicit fallback. In a deadlock, the commission's mandatory-appointment duty would still apply, with mandamus available as a backstop.

Q: Could the appointee win the November 2014 election and serve out the rest of the term?

A: Yes. The same-party requirement applies to the appointment, not the election. The appointee can run as an incumbent. Whether voters re-elect him is up to them. If he wins, he serves the rest of the original four-year term (which would end December 31, 2016, given the November 2012 election).

Q: Does this analysis apply to other county-level vacancies?

A: Partially. The same constitutional framework applies to all county officers under W. Va. Const. art. IV, § 7. But statutory specifics vary. § 3-10-7 has its own thirty-day rule for county commissioners. § 3-10-6 governs circuit court clerks. The same general principles apply (mandatory appointment, same party, election at next general election with more than one year remaining), but the procedural details differ by office.

Background and statutory framework

The constitutional framework. W. Va. Const. art. IV, § 7: "When vacancies occur prior to any general election, they shall be filled by appointments, in such manner as may be prescribed herein, or by general law, which appointments shall expire at such time after the next general election as the person so elected to fill such vacancy shall be qualified."

The vacancy statutes. § 3-10-1 sets the rule for elections to fill vacancies generally: "elections to fill vacancies shall be conducted to fill any unexpired term when more than one year of the term of office remains at the time of such election." When less than one year remains, the appointee serves out the term.

§ 3-10-8 is the sheriff-specific provision: "Any vacancy occurring in the office of . . . sheriff . . . shall be filled by the county commission by appointment of a person of the same political party as the officeholder vacating the office. The appointed person shall hold the office until the next general election is certified, or until the completion of the term if the term ends on the thirty-first day of December following the next general election."

§ 3-10-6 (cross-referenced from § 3-10-8) governs nomination procedures for filling a vacancy: "candidates to fill the vacancy shall be nominated at the primary election . . . at which any vacancy is to be filled."

The mandatory "shall." The Supreme Court of Appeals has consistently treated "shall" in election statutes as mandatory: W. Va. Citizen Action Group v. Tomblin (constitutional "shall"); Terry v. Sencindiver (statutory "shall"); Wayne v. Sims (governor's mandatory duty to fill state senate vacancy).

The reasonable-time rule for mandatory appointments. Brotherton v. Moore held that the governor waited too long, two years, to appoint a superintendent for the West Virginia Industrial Home for Girls and was subject to mandamus. The principle: a mandatory duty must have meaning, so unreasonable delays cannot be tolerated.

The pari materia rule. Miller v. Locke: "[i]t is well established in West Virginia that statutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia. Statutes in pari materia should be read and construed together, the primary purpose being to ascertain the intention of the Legislature."

The no-superfluity rule. Jackson v. Kittle: statutes should be read to avoid rendering any part superfluous.

Application. (1) The commission must appoint a same-party successor; (2) no specific deadline, but as soon as practicable; (3) the election to fill the unexpired term occurs at the next general election (November 2014), not earlier; (4) the appointee serves until the general election results are certified; (5) the commission cannot replace the appointment with an earlier special election; (6) related questions about earlier-special-election timing and nomination became moot.

Citations

• W. Va. Const. art. IV, § 7
• W. Va. Code § 5-3-2 (AG advisory authority)
• W. Va. Code § 3-1-17, § 3-1-31, § 3-10-1, § 3-10-6, § 3-10-8
• W. Va. Citizen Action Group v. Tomblin, 715 S.E.2d 36 (W. Va. 2011)
• Terry v. Sencindiver, 171 S.E.2d 480 (W. Va. 1969)
• Wayne v. Sims, 90 S.E.2d 288 (W. Va. 1955)
• Brotherton v. Moore, 230 S.E.2d 638 (W. Va. 1976)
• Lockhart v. Rogers, 61 S.E.2d 258 (W. Va. 1950)
• State v. Gen. Daniel Morgan Post No. 548 Veterans of Foreign Wars, 107 S.E.2d 353 (W. Va. 1959)
• Miller v. Locke, 253 S.E.2d 540 (W. Va. 1979)
• Jackson v. Kittle, 34 W. Va. 207 (1890)

Source

• Landing page: https://ago.wv.gov/media/18076/download?inline
• Original PDF: https://ago.wv.gov/media/18076/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

January 31, 2013

The Honorable Ralph A. Lorenzetti, Jr.
Prosecuting Attorney
Office of the Prosecuting Attorney of Jefferson County, West Virginia
P.O. Box 729
201 N. George St., 2nd Floor
Charles Town, WV 25414

Dear Prosecutor Lorenzetti,

You have asked for an Opinion of the Attorney General pertaining to the recent resignation of the Sheriff of Jefferson County, West Virginia (the "Sheriff"), and the resulting vacancy in that office. This Opinion is being issued pursuant to West Virginia Code Section 5-3-2.

This Opinion is based solely on the factual assertions stated in your letter of January 18, 2013. On January 11, 2013, the Sheriff resigned from his office, which he had been elected to serve in November 2012 for a four-year term, leaving an unexpired term of more than one year. See W. Va. Code § 3-1-17 (providing four-year term in office of sheriff). The County Commission of Jefferson County, West Virginia (the "Commission"), now faces the responsibility of complying with those portions of West Virginia law that govern the appointment of a Sheriff and the timing of when to hold an election to fill that position.

Your letter raised five specific questions, which are addressed in turn below:

(1) Is there a timeframe in which the Commission must appoint a sheriff?
(2) When should an election be held to fill the unexpired term in the office of sheriff?
(3) May the Commission hold a special election before the 2014 general election instead of appointing an individual to serve?
(4) If an election is held before the 2014 general election, can that election be held at any time or must it be held the first Tuesday in November?
(5) If the Commission is permitted to conduct a special election before the next general election, how should candidates be nominated for that election?

Question One: Is there a timeframe in which the Commission must appoint a sheriff?

Neither the West Virginia Constitution nor the Code directly addresses the exact timeframe within which the Commission must appoint a person to fill the vacancy in the office of Sheriff. However, the West Virginia Constitution does provide, in pertinent part,

When vacancies occur prior to any general election, they shall be filled by appointments, in such manner as may be prescribed herein, or by general law, which appointments shall expire at such time after the next general election as the person so elected to fill such vacancy shall be qualified.

W. Va. Const., art. IV, § 7 (emphasis added). Furthermore, with respect to a vacancy "occurring in the office of . . . sheriff," the West Virginia Code states that such vacancy "shall be filled by the county commission by appointment of a person of the same political party as the officeholder vacating the office." W. Va. Code § 3-10-8 (emphasis added).

West Virginia law imposes a mandatory duty upon the Commission to appoint a person to fill the vacancy in the office of Sheriff.

This constitutional and statutory language, "shall be filled," imposes a mandatory duty upon the Commission to fill the vacancy in the office of Sheriff. See Syl. Pt. 5, W. Va. Citizen Action Group v. Tomblin, 715 S.E.2d 36 (W. Va. 2011) ("As used in constitutional provisions, the word 'shall' is generally used in the imperative or mandatory sense."); Syl. Pt. 2, Terry v. Sencindiver, 171 S.E.2d 480 (W. Va. 1969) ("The word 'shall', in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation."); see also Wayne v. Sims, 90 S.E.2d 288 (W. Va. 1955). Therefore, under Article IV, Section 7 of the state Constitution, and Section 3-10-8 of the state Code, the Commission must appoint a person to fill the vacancy in the office of Sheriff, and that person must be of the same political party as the previous officeholder.

West Virginia law does not provide a specific timeframe within which the Commission must appoint a person to fill the vacancy in the office of Sheriff.

Although the West Virginia Code provides specific timeframes for appointing replacements for other offices, such as members of Congress (W. Va. Code § 3-10-4), state legislators (W. Va. Code § 3-10-5), circuit court clerks (W. Va. § 3-10-6), and county commissioners and county commission clerks (W. Va. Code § 3-10-7), no such guidance is provided with regard to county sheriffs. In addition, no judicial decisions directly address your question.

Nevertheless, even without controlling precedent, the mandatory nature of the appointment language suggests that the vacancy must be filled by appointment within some reasonable period. Clearly, a mandate must have some meaning and cannot be ignored. Cf. Brotherton v. Moore, 230 S.E.2d 638 (W. Va. 1976) (holding that the governor, by waiting two years to appoint a superintendent for the West Virginia Industrial Home for Girls, waited too long and was subject to a mandamus ruling). Since no specific timeframe for appointments are found under the Code, the Attorney General's office cannot provide the Commission with an exact date within which the Commission must fill the vacancy in the office of Sheriff. To effectuate the term "shall be filled," however, the Commission should, as soon as practicable, endeavor to proceed with an appointment in order to adhere to the Constitution and the Code.

Question Two: When should an election be held to fill the unexpired term in the office of sheriff?

West Virginia law requires that there be an election to fill the unexpired term of the Sheriff.

Section 3-10-1 of the West Virginia Code, entitled "Elections to fill vacancies," requires an election to fill the unexpired term of any office (save for vacancies in the offices of state officials, United States senators and representatives, and state judges) that has more than one year remaining:

Except as provided in sections three and four of this article, elections to fill vacancies shall be conducted to fill any unexpired term when more than one year of the term of office remains at the time of such election. When less than one year of the term of office remains at the time of the election, the person appointed to fill the vacancy shall continue in office until the completion of the term. Elections to fill vacancies shall be held at the same places, and superintended, conducted and returned, and the result ascertained, certified and declared, in the same manner, and by the same officers, as in general elections. The persons elected, having first duly qualified, shall enter upon the duties of their respective offices.

W. Va. Code § 3-10-1 (emphasis added). Our state has long encouraged a reading of election law in a manner that allows voters to choose their public officials. As the Supreme Court of Appeals of West Virginia stated more than sixty years ago, "a liberal application of any statute should be made so as to afford the citizens of this State or any political subdivision thereof an opportunity to vote for the persons of their choice." Lockhart v. Rogers, 61 S.E.2d 258, 262 (W. Va. 1950).

The Sheriff's resignation left an unexpired term of greater than one year in that office. Therefore, under Section 3-10-1, any person the Commission appoints to the office of Sheriff may not serve the complete term of that office, which would have run through 2016. Rather, an election must be held to fulfill the remainder of the term. The pertinent question then becomes, when must that election occur?

The election to fill the unexpired term of the Sheriff shall occur at the next general election.

Article IV, Section 7 of the West Virginia Constitution, discussed above, provides that appointments to fill vacancies "shall expire at such time after the next general election as the person so elected to fill such vacancy shall be qualified." W. Va. Const., art. IV, § 7. Section 3-10-8, also discussed above, speaks to a vacancy in the office of Sheriff specifically:

Any vacancy occurring in the office of . . . sheriff . . . shall be filled by the county commission by appointment of a person of the same political party as the officeholder vacating the office. The appointed person shall hold the office until the next general election is certified, or until the completion of the term if the term ends on the thirty-first day of December following the next general election.

W. Va. Code § 3-10-8 (emphasis added). These two provisions, one constitutional and the other statutory, clearly provide that the term of the person appointed by the Commission runs through the certification of the next general election. This language is plain and unambiguous and must be applied as written.

Here, the next general election will be the Tuesday following the first Monday in November 2014. See W. Va. Const., art. IV, § 7; W. Va. Code § 3-1-31. Therefore, an election to fill the vacancy in the office of Sheriff must occur on that date.

This is the result expressly contemplated by the operation of the West Virginia Code. Section 3-10-8 provides that "[n]ominations of candidates to fill any vacancy shall be made in the manner prescribed in section six of this article for nominating candidates to fill a vacancy in the office of the clerk of the circuit court." W. Va. Code § 3-10-8. That referenced provision, Section 3-10-6, states the following regarding nominating candidates to fill a vacancy:

If the vacancy occurs no later than the eighty-fourth day before the primary election held to nominate candidates to be voted for at the general election, at which any vacancy is to be filled, candidates to fill the vacancy shall be nominated at the primary election . . . .

W. Va. Code § 3-10-6 (emphasis added). The phrase "at which any vacancy is to be filled" modifies "the general election." Thus, the Code expressly contemplates that the election to fill the vacancy will be at the general election.

Although, as your letter identifies, Section 3-10-1 could be read to suggest that "elections to fill vacancies" are different events from "general elections," there is no authority providing that they must or may be held at different times. In fact, such a reading would be incongruous with the Constitution and the other statutory provisions referenced herein. Reading Sections 3-10-6, 3-10-8, and 3-10-1 in pari materia compels the conclusion that an election is required to fill any unexpired term of the office of Sheriff that exceeds one year, and that that election must be held at the time of the next general election, which will occur in November 2014.

Question Three: May the Commission hold a special election before the 2014 general election instead of appointing an individual to serve?

As explained above, Article IV, Section 7 of the West Virginia Constitution and Section 3-10-8 of the West Virginia Code require the Commission to appoint a person to the office of Sheriff, and that appointed person must be of the same political party as the vacating officeholder. That duty is mandatory: regardless of the date of the election to fill the vacancy, the Commission is obligated to appoint a person to the office. Moreover, an election to fill the remaining term of the Sheriff must be held at the time of the next general election in November 2014. Therefore, the Commission may not hold an election to fill the Sheriff's vacancy before the 2014 general election in lieu of appointing an individual to serve in that position.

Question Four: If an election is held before the 2014 general election, can that election be held at any time or must it be held the first Tuesday in November?

Since the election to fill the unexpired term of the office of Sheriff must be held at the time of the November 2014 general election, it is the opinion of this office that this question is rendered moot.

Question Five: If the Commission is permitted to conduct a special election before the next general election, how should candidates be nominated for that election?

As explained above, the Commission is not permitted to conduct an election to fill the Sheriff's vacancy before the next general election to elect a person to the office of Sheriff. Therefore, this question is also moot.

Very truly yours,

PATRICK MORRISEY
ATTORNEY GENERAL