Cole won't say if he'll abide by WV Supreme Court decision

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Cole won't say if he'll abide by WV Supreme Court decision
By David Gutman, The Charleston Gazette-Mail

West Virginia Senate President Bill Cole on Wednesday refused to say if he would abide by the ruling of the state Supreme Court, if the court rules that a Democrat should fill the vacant seat in the Senate created by the resignation of Democrat-turned-Republican Daniel Hall.

Asked repeatedly if he would abide by the court’s decision, the state’s highest judicial body, Cole, R-Mercer, declined substantive comment.

“We’ll see how that plays out. We’ll see how that plays out,” he said. “I’m not going to comment on it. We’ll just see how it plays out. We’ll just see what happens. You’re asking me to comment on things that haven’t happened yet.”

The state Democratic Party filed suit with the Supreme Court, asking for a Democrat to fill Hall’s seat. The local Republican committee for Hall’s senatorial district responded to the Democratic lawsuit, asking for a Republican replacement.

The Supreme Court will hold oral arguments in the case on Tuesday at 1 p.m. Justice Brent Benjamin recused himself from the case and it is unknown if Chief Justice Menis Ketchum will appoint a replacement.

Hall was elected in 2012 as a Democrat but switched parties in 2014 and resigned last week as a Republican.

Democratic Gov. Earl Ray Tomblin, who ultimately will appoint the replacement, said he will do what the court advises, but if they offer no opinion, he will appoint a Democrat.

Cole, a candidate for governor, and Republican Attorney General Patrick Morrisey also filed briefs with the court, asking for a Republican replacement.

Control of the Senate hangs in the balance. The Republicans hold a 17-16 majority but, if a Democrat fills the vacancy, it would deadlock the chamber, potentially stymieing much of Cole’s agenda.

Cole’s reluctance to answer whether he would follow an order from the court or not likely concerns one clause in the West Virginia Constitution. The third sentence of Article 6-24 of the Constitution reads: “Each house shall determine the rules of its proceedings and be the judge of the elections, returns and qualifications of its own members.”

In the brief he filed with the Supreme Court, Cole twice referenced that line, perhaps implying that the Republican majority in the Senate could deem a Democratic replacement for Hall “unqualified,” even if the Supreme Court orders a Democratic replacement.

In his brief, Cole’s counsel wrote that the Democrats’ lawsuit “seeks relief which will undermine important separation of powers principles. Constitutionally, the Senate is empowered to determine the qualifications of its members.”

While Cole would not comment on what Republicans would do if the court rules against them, his top deputy indicated that they would not abide by such a decision.

“We judge the qualifications of the members and we do not believe that a Democrat in that seat after it’s being vacated by a Republican is qualified to hold it,” Senate Majority Leader Mitch Carmichael, R-Jackson, told West Virginia Public Broadcasting.

Not that they would have much choice in the matter, as they are currently the minority in the Senate, but the state Democratic Party said it would abide by the Supreme Court’s decision, no matter what it is.

“By threatening not to recognize the Supreme Court of Appeals’ power to interpret the law and to reject the governor’s constitutional appointment power, Senate President Bill Cole and Senate Majority Leader Mitch Carmichael have crossed the line,” Democratic officials said in a prepared statement. “The Republican senators moving forward and not honoring the West Virginia Supreme Court’s decision will put in doubt any laws that are passed and cause a constitutional crisis.”