When a county commission must appoint someone to fill a sheriff vacancy with someone from the same political party as the previous sheriff, does it matter how long the appointee has been a member of that party?
Plain-English summary
The Sheriff of Jefferson County, a Democrat, won re-election in November 2012 and resigned in January 2013. Under W. Va. Code § 3-10-8, the County Commission had to appoint a replacement of the same political party. One of the applicants had run as the Republican candidate for sheriff against the now-resigned Sheriff in November 2012. After losing the election, he switched his party registration from Republican to Democratic. Twenty-two days after switching, he applied to be appointed sheriff.
Prosecutor Lorenzetti asked the AG: does the recent party switch disqualify him under § 3-10-8?
The AG said no. Section 3-10-8 says only that the appointee must be "of the same political party as the officeholder vacating the office." It says nothing about how long the appointee must have belonged to that party. The 60-day prior-affiliation rule that the prosecutor wondered about, in W. Va. Code § 3-5-7, applies by its terms only to people filing a "certificate of announcement declaring as a candidate for the nomination or election" in a primary or general election. A vacancy appointment is not the same as a candidacy. Section 3-5-7 simply does not apply.
The AG framed the conclusion through a basic statutory-construction principle, which he called the "long-standing canon" from Harbert v. Harrison Cnty. Court (1946): "[t]he Legislature is presumed to know existing laws relating to the same subject, and to understand the situation with which it undertakes to deal." Sections 3-10-8 and 3-5-7 sit in the same Elections chapter of the West Virginia Code. If the Legislature wanted to import the 60-day durational requirement into vacancy appointments, it knew how to do so and chose not to. So the 22-day window of Democratic Party membership was, standing alone, no bar to the appointment.
This was a follow-up to a January 31, 2013 AG opinion that had told the Jefferson County Commission they must appoint a same-party replacement to fill the sheriff vacancy. This March 4 opinion tightens that earlier guidance by clarifying what "same political party" does, and does not, require in terms of duration of membership.
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: What is the minimum time an applicant must be in the right party before being appointed sheriff?
A: According to this opinion, none. Section 3-10-8 contains no durational requirement. The applicant must be "of the same political party" as the sheriff who vacated the office on the date of the appointment, but no minimum membership period is specified.
Q: How long does the 60-day rule for candidates last, and where does it come from?
A: W. Va. Code § 3-5-7 requires anyone filing a certificate of announcement for a primary or general election to certify, among other things, that they have "not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing of announcement." That rule applies to candidates seeking nomination or election. It does not apply to people seeking appointment to fill a vacancy.
Q: Could a county commission still consider party-switch timing as a factor?
A: This opinion does not say. The AG only addressed the legal disqualification question. As a practical matter, a county commission has discretion to evaluate applicants, and the depth or sincerity of an applicant's party affiliation may be relevant to that discretion. But "twenty-two days as a Democrat" is not a per se legal disqualification under the statute.
Q: Could the Legislature add a durational requirement?
A: Yes. The AG noted that the Legislature put a 60-day rule into § 3-5-7 for candidates and could have imposed a similar rule for vacancy appointees but did not. The Legislature can amend § 3-10-8 to add such a rule if it chooses.
Q: Does this opinion apply to other county-officer vacancies, like assessor or county clerk?
A: The opinion specifically addresses sheriff vacancies under § 3-10-8. The reasoning would likely transfer to other vacancy appointments governed by similarly worded statutes, since the same statutory-construction principle applies. But each statute should be checked separately.
Background and statutory framework
W. Va. Code § 3-10-8 governs the filling of vacancies in the offices of sheriff, prosecuting attorney, county surveyor, and other county-level offices. The relevant text says: "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 statute speaks to the appointee's party affiliation but is silent on duration.
W. Va. Code § 3-5-7, by contrast, sits in the Primary Elections and Nominating Procedures article. It governs candidates filing a "certificate of announcement declaring as a candidate for the nomination or election to the office," and requires the certificate to state, among other things, that the candidate has not been "registered as a voter affiliated with any other political party for a period of sixty days before the date of filing of announcement." The 60-day rule is a candidate-eligibility rule.
The AG applied the canon from Harbert v. Harrison Cnty. Court (1946) that the Legislature is presumed to know its own statutes and to understand the legal landscape it is regulating. Because § 3-10-8 and § 3-5-7 are in the same chapter, the Legislature's decision to add a durational rule to one and not the other is presumed deliberate. Importing the 60-day rule into the vacancy-appointment statute would rewrite the text and override the Legislature's evident choice.
Citations and references
Statutes:
- W. Va. Code § 3-5-7 (60-day prior party affiliation rule for candidates)
- W. Va. Code § 3-10-8 (vacancy appointment of same political party)
Cases:
- Harbert v. Harrison Cnty. Court, 39 S.E.2d 177 (W. Va. 1946) (Legislature presumed to know existing laws)
Earlier AG correspondence:
- Letter from Patrick Morrisey to Ralph A. Lorenzetti, Jr., Jan. 31, 2013 (initial opinion confirming Commission must appoint same-party replacement under § 3-10-8)
Source
- Landing page: https://ago.wv.gov/media/18081/download?inline
- Original PDF: https://ago.wv.gov/media/18081/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey, Attorney General
Charleston, West Virginia 25305
(304) 558-2021 / Fax (304) 558-0140
March 4, 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 appointment of a person to fill the vacancy in the Office of the Sheriff of Jefferson County, West Virginia ("Sheriff"). On January 31, 2013, this Office issued an Opinion explaining that the West Virginia Code requires the County Commission of Jefferson County (the "Commission") to appoint a person to fill the vacancy in the office of Sheriff. See Letter from Patrick Morrisey to Ralph A. Lorenzetti, Jr., Jan. 31, 2013, at 2-3 (discussing W. Va. Code § 3-10-8). Moreover, that Opinion noted that the law requires the appointed person to be of the same political party as the previous officeholder. Id. Your current request raises a follow-up question to the issues presented under this Office's January 31 Opinion Letter. Specifically, is the eligibility of an applicant to fill the Sheriff's vacancy impacted by the length of time that such applicant is a member of the requisite political party? As explained below, the answer to that question is "no."
This Opinion is based solely upon the facts asserted in your February 27, 2013 letter: In November 2012, the Sheriff, a Democrat, was elected to a four-year term. He resigned his office on January 11, 2013. In accordance with West Virginia Code Section 3-10-8, the Commission must appoint a person to fill the vacancy left by the resignation. Among other provisions, Section 3-10-8 requires that the person appointed to fill that vacancy be "of the same political party as the officeholder vacating the office." W. Va. Code § 3-10-8.
According to your letter, one of the candidates being considered to fill the vacancy was the Republican candidate for Sheriff in the November 2012 election. After the election, he changed his party affiliation and became a Democrat. Twenty-two days after changing his party affiliation, he applied to be appointed Sheriff. Your letter asks whether this person is disqualified from being appointed Sheriff because he was a Democrat for only twenty-two days at the time he applied.
West Virginia Code Section 3-10-8 describes the process for filling a vacancy in the office of sheriff. It provides, "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[.]" This Section does not, however, speak to how long the person must have belonged to that party prior to the appointment.
Your letter questions whether a different section of the West Virginia Code pertaining to election law, Section 3-5-7, imposes a political-party durational requirement in this circumstance. It does not. Section 3-5-7 of the West Virginia Code, which is within the article entitled "Primary Elections and Nominating Procedures," provides,
Any person who is eligible and seeks to hold an office or political party position to be filled by election in any primary or general election held under the provisions of this chapter shall file a certificate of announcement declaring as a candidate for the nomination or election to the office.
(emphasis added). A political candidate's certificate of announcement must contain, among other things, a certification that he or she belongs to a political party and "has not been registered as a voter affiliated with any other political party for a period of sixty days before the date of filing of announcement." W. Va. Code § 3-5-7. Crucially, however, Section 3-5-7 says nothing about qualifications for people seeking appointment to fill a vacancy; it only speaks to the situation in which a person is seeking election to an office.
It is a long-standing canon of statutory construction that "[t]he Legislature is presumed to know existing laws relating to the same subject, and to understand the situation with which it undertakes to deal." Harbert v. Harrison Cnty. Court, 39 S.E.2d 177, 191 (W. Va. 1946). Sections 3-10-8 and 3-5-7 are contained within the same "Elections" Chapter of the West Virginia Code. One must presume that if the West Virginia Legislature had intended to overlay Section 3-10-8 with the requirements of Section 3-5-7, then it would have done so. Under the plain language of the West Virginia Code, the political-party durational requirement in Section 3-5-7 does not apply in this circumstance. The fact that a person has been a member of the Democratic Party for only twenty-two days prior to applying to fill the Sheriff's vacancy is not, standing alone, a reason for disqualification.
Sincerely,
Patrick Morrisey
Attorney General