By Phil Kabler
For the West Virginia Press Association
CHARLESTON, W.Va. — As the 60-day legislative session moved into its second week, the main focus was not on the Senate or the House of Delegates, or even the governor’s office.
Attention turned to state Supreme Court chambers, which was called on to determine whether state law required a Republican or Democrat to be appointed to the state Senate seat vacated Jan. 4 by Sen. Daniel Hall, R-Wyoming, who resigned to take a lobbying job with the National Rifle Association.
Hall had been elected to the Senate in 2012 as a Democrat, but switched parties after the November 2014 elections to break a 17-17 deadlock and give Republicans control of the Senate for the first time in 83 years.
The issue was critical, since appointment of a Democrat would again create a 17-17 tie in the Senate, which would give Democrats enough votes to block the Republican leadership’s legislative agenda, and also leave the Senate leadership one vote short of the 18 needed to override any bill vetoes by Gov. Earl Ray Tomblin.
The high court on Tuesday heard arguments on the case. Attorneys for the state Democratic Party and for Tomblin argued that the will of the voters in the 9th Senatorial District should prevail, and a Democrat should be appointed.
Attorneys for the state Republican Party and attorney general’s office contended state law is unambiguous and refers to the office-holder’s party affiliation “immediately preceding the vacancy,” not at the time of election.
During nearly an hour of oral arguments, Justice Robin Davis chastised lawyers on both sides for focusing on trying to interpret the meaning of the state law, instead of looking at whether the law itself is constitutional.
She cited a 1982 U.S. Supreme Court case which seemed to suggest that appointing a Republican would be unconstitutional because it would “disproportionately affect” voters in the 9th District who had elected a Democrat.
“You avoided it like the plague,” she complained.
Three days later, as a massive snowstorm swept across the state, the Supreme Court issued a 3-1 decision concluding that state law is in fact clear, and applies to Hall’s party affiliation at the time he resigned, not when he was elected.
Davis dissented, but did not file a dissenting opinion on Friday.
Shortly after the decision, Tomblin, who had said he would abide by the court’s decision, appointed Wyoming County businesswoman Sue Cline to fill the vacancy.
Notably, Cline’s appointment doubles the number of women in the state Senate. Sen. Donna Boley, R-Pleasants, had been the only woman in the 34-member body.
Cline’s appointment likely paves the way for passage of bills that have been dividing the Legislature along party lines, including a “right-to-work” bill that would give employees in union shops the option of whether to pay union dues, and a bill to repeal the state’s Prevailing Wage Act, which requires contractors to pay roughly union-scale wages for major state-funded construction projects.
On Thursday, the right-to-work bill (SB1) passed the Senate on a party line 17-16 vote, after more than 90 minutes of contentious debate.
Republicans cited right-to-work as an economic development tool, saying it would encourage businesses to locate in West Virginia.
“People have left this state because they’ve had to find employment,” Senate Judiciary Chairman Charles Trump, R-Morgan, asserted. “For too long, this state has had an inhospitable business climate, and this bill is one of many measures that this bill will consider that is designed to change that.”
Democrats countered that the bill has nothing to do with economic development – citing testimony from Commerce Secretary Keith Burdette, who had told the Judiciary Committee that right to work had never come up as an issue with any businesses the department had been recruiting to locate in the state.
Senate Minority Leader Jeff Kessler, D-Marshall, said the real purpose of the bill is to further weaken union membership and influence in the state.
“It encourages breaking up unions for no other reason than for political reasons,” Kessler said, as union members packed the three galleries above Senate chambers.
The bill goes to the House, which is working on a companion bill to repeal the state’s Prevailing Wage Act (HB4405).
Enacted during the Great Depression to prevent out-of-state companies using low-paid labor from underbidding for state construction contracts, critics of prevailing wage contends that it inflates costs for state projects, by mandating union-scale wages.
This is the second straight year the Legislature has taken up a bill to repeal prevailing wage. Last session, lawmakers compromised, making several changes to the law, including exempting projects of $500,000 or less, and shifting authority for determining the wage rates from the state Division of Labor to WorkForce West Virginia.
However, leadership was dissatisfied that WorkForce West Virginia’s new wage rate calculations were not significantly lower than the old prevailing wage, and as early as last summer began advocating for outright repeal of the law.
That bill advanced to the House floor on a partisan 15-9 vote in House Government Organization Committee.