Senate Bill No. 144
(By Senators Boley, Unger, Sprouse and Sypolt)
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[Introduced January 19, 2007; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §51-3-18 of the Code of West Virginia,
1931, as amended, relating to requiring the Governor to fill
a judicial vacancy within sixty days after the vacancy occurs.
Be it enacted by the Legislature of West Virginia:
That §51-3-18 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 3. COURTS IN GENERAL.
§51-3-18. Expeditious filling of judicial vacancies.
(a) The Legislature finds that when judicial offices created
under the Constitution and laws of the state are vacant for
extended periods of time, the proper functioning of the judicial
branch of the government is impeded. The Legislature further finds
that when a vacancy in a judicial office is to be filled by
appointment, it is in the public interest that any questions
regarding the qualifications or eligibility of the person nominated or appointed to fill the vacancy be determined expeditiously.
(b) When, pursuant to the provisions of section seven, article
VIII of the Constitution of West Virginia, the Governor appoints a
person to fill a vacancy in the Office of Justice of the Supreme
Court of Appeals or in the office of judge of the circuit court,
the Governor shall fill the vacancy within sixty days after the
vacancy occurs, and no suit or action challenging the
qualifications or eligibility of the person so appointed, if it be
based upon any fact or circumstance in existence at the time of the
appointment, will be cognizable in any court of this state unless
it be brought within twenty days after the appointment by the
Governor.
(c) When, pursuant to the provisions of section ten, article
VIII of the Constitution of West Virginia and the general laws
adopted thereunder, a person is appointed to fill a vacancy in the
office of magistrate, no suit or action challenging the
qualifications or eligibility of the person so appointed, if it be
based upon any fact or circumstance in existence at the time of the
appointment, will be cognizable in any court of this state unless
it be brought within twenty days after the appointment.
(d) When, pursuant to the provisions of section sixteen,
article VIII of the Constitution of West Virginia, the Governor
appoints a person to fill a vacancy in the office of judge of the
family court, no suit or action challenging the qualifications or eligibility of the person so appointed, if it be based upon any
fact or circumstance in existence at the time of the appointment,
will be cognizable in any court of this state unless it be brought
within twenty days after the appointment by the Governor.
(e) Following a judicial appointment, if no suit or action is
commenced within the time specified above, or if, in a suit having
been timely brought, it is finally adjudged that the appointee is
qualified and eligible to hold the office to which he or she has
been appointed, then the appointee may take the oath of office and
thereafter execute the office for the unexpired term to which he or
she has been appointed, subject to removal under section eight,
article VIII of the Constitution of West Virginia, in the case of
a Justice of the Supreme Court of Appeals, the circuit court or the
family court, only by impeachment, and in the case of a magistrate,
in the manner provided by general law for removal of a magistrate.
(f) An action timely brought to challenge the qualifications
or eligibility of an appointee to judicial office shall be given
priority over all other actions on the docket of the court in which
the action is brought.
(g) Nothing contained in this section is intended by the
Legislature to interfere with the authority of the Supreme Court of
Appeals to discipline or retire judges or magistrates as that
authority is set forth in the Constitution of West Virginia and in
rules adopted by the Supreme Court of Appeals pursuant to the Constitution of West Virginia.
(h) The Legislature declares that the offices of magistrate,
judge of the family court, judge of the circuit court and Justice
of the Supreme Court of Appeals are elective in nature and are all
"offices to be filled by election by the people" within the meaning
of the exceptions clause of section fifteen, article VI of the
Constitution of West Virginia, which clause describes the kind and
character of the offices thereby removed from the operation of the
prohibitory clause and not the method by which the offices are to
be filled.
NOTE: The purpose of this bill is to require the Governor to
fill a judicial vacancy within sixty days after the vacancy occurs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.