State of W.Va. ex rel. Biafore v. Earl Ray Tomblin , 236 W. Va. 528 ( 2016 )

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Anthony J. Majestro, Esq. J. Mark Adkins, Esq.
Powell & Majestro, PLLC, Patrick C. Timony, Esq.
Charleston, West Virginia Bowles Rice LLP
Counsel for Petitioners, Charleston, West Virginia
West Virginia Counsel for Beverly R. Lund, Justin M.
Democratic Executive Committee Arvon, Sue “Naomi” Cline, and Tony Paynter
for the Ninth Senatorial District
Mark A. Carter, Esq.
Peter G. Markham, Esq. Dinsmore & Shohl LLP
General Counsel Charleston, West Virginia
Office of Governor Earl Ray Tomblin Counsel for Beverly R. Lund, Justin M.
Charleston, West Virginia Arvon, Sue “Naomi” Cline, and Tony Paynter
Counsel for Respondent Governor
Tomblin Patrick Morrisey, Esq.
Attorney General,
Vincent Trivelli, Esq. Elbert Lin, Esq.
The Law Office of Vincent Trivelli, Solicitor General
PLLC J. Zak Ritchie, Esq.
Morgantown, West Virginia Assistant Attorney General
Thomas Patrick Maroney, Esq. Charleston, West Virginia
Maroney, Williams, Weaver & Pancake Counsel for Intervenor State of West Virginia
PLLC
Charleston, West Virginia John M. Canfield, Esq.
Counsel for Amicus Curiae, West Vice President & Counsel for Amicus Curiae,
Virginia State Building and Construction West Virginia Chamber of Commerce
Trades Council, AFL-CIO and the Charleston, West Virginia
Affiliated Construction Trades
Foundation Jeffrey M. Wakefield, Esq.
Wesley P. Page, Esq.
Keith R. Hoover, Esq.
Flaherty Sensabaugh & Bonasso.
Counsel for Amicus Curiae, William P. Cole,
III, President of the West Virginia Senate
JUSTICE WORKMAN delivered the OPINION of the Court. CHIEF JUSTICE KETCHUM
AND JUSTICE LOUGHRY concur and reserve the right the file concurring opinions.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion. JUSTICE
BENJAMIN, deeming himself disqualified, did not participate in this proceeding.
SYLLABUS BY THE COURT
1. “Mandamus is a proper remedy to require the performance of a
nondiscretionary duty by various governmental agencies or bodies.” Syl. Pt. 1, State ex rel.
Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W.Va. 207, 151 S.E.2d 102 (1966).
2. “A writ of mandamus will not issue unless three elements coexist - (1) a
clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate
remedy.” Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367
(1969).
3. “In West Virginia a special form of mandamus exists to test the eligibility
to office of a candidate in either a primary or general election.” Syl. Pt. 5, in part, State ex
rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976).
4. “Because there is an important public policy interest in determining the
qualifications of candidates in advance of an election, this Court does not hold an election
mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus
case.” Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979).
i
5. “[W]hen a writ of mandamus has been invoked to preserve the right to vote
or to run for political office . . . this Court has eased the requirements for strict compliance
for the writ’s preconditions, especially those relating to the availability of another remedy.”
Syl. Pt. 3, in part, State ex rel. Sowards v. Cty. Comm’n of Lincoln Co., 196 W.Va. 739, 474
S.E.2d 919 (1996).
6. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).
7. “‘When the constitutionality of a statute is questioned every reasonable
construction of the statute must be resorted to by a court in order to sustain constitutionality,
and any doubt must be resolved in favor of the constitutionality of the legislative enactment.’
Syl. Pt. 3, Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).” Syl. Pt. 3, State v.
James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
ii
Workman, Justice:
On January 8, 2016, the petitioners, Belinda Biafore, Chair of the West
Virginia State Democratic Executive Committee, and the members of the West Virginia
Democratic Executive Committee for the Ninth Senatorial District (hereinafter “petitioners”),
petitioned this Court, requesting the issuance of a writ of mandamus against the respondents,
Governor Earl Ray Tomblin and members of the West Virginia Republican Executive
Committee for the Ninth Senatorial District (hereinafter “respondents”). Through this
request for extraordinary relief, the petitioners seek to compel Governor Tomblin to fill the
current vacancy in the West Virginia Senate from a list of three candidates to be selected by
the petitioners.
On January 11, 2016, the respondent, Governor Tomblin, filed a summary
response to the petition. The respondent members of the West Virginia Republican
Executive Committee for the Ninth Senatorial District filed a response in opposition to the
petition on January 12, 2016. West Virginia Attorney General Patrick Morrisey filed an
intervenor’s brief.
On January 13, 2016, this Court issued a rule to show cause and ordered the
respondents to show cause, if any, why a writ of mandamus should not be awarded as
1
requested by the petitioners. Oral argument was conducted on January 19, 2016.1
I. Factual and Procedural History
Daniel Jackson Hall was elected to the West Virginia Senate in the 2012
general election as the Democratic senator in the Ninth Senatorial District. In November
2015, Senator Hall changed parties and became a Republican. On December 29, 2015,
Senator Hall announced his resignation from the Senate, effective January 3, 2016, which
created the vacancy at the center of this dispute. An immediate discussion ensued regarding
whether Governor Tomblin was required to replace Senator Hall with a Democrat or a
Republican.
On January 5, 2016, Attorney General Patrick Morrissey issued an opinion of
the Attorney General concluding that Governor Tomblin was required to replace Senator Hall
with a Republican from one of three names submitted by the respondent members of the
West Virginia Republican Executive Committee for the Ninth Senatorial District, pursuant
to the provisions of West Virginia Code § 3-10-5 (2013).
In the Petition for Writ of Mandamus currently before this Court, the
1
This Court expresses appreciation for the amicus briefs filed in this matter.
2
petitioners contend West Virginia Code § 3-10-5 is ambiguous and should be interpreted to
preserve the mandate of the voters when a legislative vacancy occurs. Because the voters of
the Ninth Senatorial District elected Senator Hall as a Democrat, the petitioners argue the
voters’ mandate can best be preserved by interpreting the statute to require Governor
Tomblin to appoint a Democrat from the three names to be submitted by the petitioners.
II. Mandamus
This Court has consistently held “[m]andamus is a proper remedy to require
the performance of a nondiscretionary duty by various governmental agencies or bodies.”
Syl. Pt. 1, State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W.Va. 207, 151 S.E.2d
102 (1966). Generally,
A writ of mandamus will not issue unless three elements coexist
- (1) a clear legal right in the petitioner to the relief sought; (2)
a legal duty on the part of respondent to do the thing which the
petitioner seeks to compel; and (3) the absence of another
adequate remedy.
Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
Cognizant of the need for alacrity in matters affecting the right to political
office, this Court has recognized that “[i]n West Virginia a special form of mandamus exists
to test the eligibility to office of a candidate in either a primary or general election.” Syl. Pt.
5, in part, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976). In
3
special mandamus election cases, “[b]ecause there is an important public policy interest in
determining the qualifications of candidates in advance of an election, this Court does not
hold an election mandamus proceeding to the same degree of procedural rigor as an ordinary
mandamus case.” Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d
119 (1979). In that same vein, we have explained that “when a writ of mandamus has been
invoked to preserve the right to vote or to run for political office . . . this Court has eased the
requirements for strict compliance for the writ’s preconditions, especially those relating to
the availability of another remedy.” Syl. Pt. 3, in part, State ex rel. Sowards v. Cty. Comm’n
of Lincoln Co., 196 W.Va. 739, 474 S.E.2d 919 (1996).
Applying these principles to this matter, we view the vacancy created by
Senator Hall’s departure as properly the subject of a writ of mandamus.
III. Discussion
The case sub judice requires the application of settled principles of statutory
application under which this Court must first determine whether the statutory text is plain and
unambiguous. See U.S. v. Gonzales, 520 U.S. 1, 4 (1997). We have uniformly adhered to
the principle that where a statute is plain and unambiguous, it is the clear and unmistakable
duty of the judiciary to merely apply the language. Hardt v. Reliance Standard Life Ins. Co.,
560 U.S. 242, 251 (2010); Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970);
4
Hood v. City of Wheeling, 85 W.Va. 578, 102 S.E. 259 (1920); Wellsburg and State Line R.
R. Co. v. Panhandle Traction Co., 56 W.Va. 18, 48 S.E. 746 (1904). If the statutory text is
clear and unambiguous, we must apply the statute according to its literal terms. See, e.g.,
Dodd v. U.S., 545 U.S. 353, 357 (2005).
In State of West Virginia v. Continental Casualty Co., 130 W.Va. 147, 42
S.E.2d 820 (1947), this Court further elucidated this principle:
When a statute is clear and unambiguous, and the legislative
intent is plain, the statute should not be interpreted by the courts.
50 Am.Jur., Statutes, Section 225. See State ex rel. McLaughlin
v. Morris, 128 W.Va. 456, 37 S.E.2d 85. In such case the duty
of the courts is not to construe but to apply the statute. In
applying the statute its words should be given their ordinary
acceptance and significance and the meaning commonly
attributed to them. 50 Am.Jur., Section 225. See Moran v.
Leccony Smokeless Coal Co., 122 W.Va. 405, 10 S.E.2d 578,
136 A.L.R. 1007.
130 W.Va. at 155, 42 S.E.2d at 825. In syllabus point two of State v. Epperly, 135 W.Va.
877, 65 S.E.2d 488 (1951), the Court reiterated: “A statutory provision which is clear and
unambiguous and plainly expresses the legislative intent will not be interpreted by the courts
but will be given full force and effect.” The Court in Epperly also observed: “In such case
the duty of the courts is not to construe but to apply the statute, and in so doing, its words
should be given their ordinary acceptance and significance and the meaning commonly
attributed to them.” Id. at 884, 65 S.E.2d at 492. Courts are obligated to “presume that a
legislature says in a statute what it means and means in a statute what it says there.”
5
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992). When the language of
a statute is unambiguous, “judicial inquiry is complete.” Rubin v. U.S., 449 U.S. 424, 430
(1981).
In view of these axiomatic principles, we emphasize that judicial interpretation
of a statute is warranted only where the statute is ambiguous. Thus, unless the statute at issue
is determined to be ambiguous, this Court is not permitted to engage in an examination of the
public policy ramifications potentially resulting from its application or to comment upon the
wisdom of the legislation as unambiguously expressed.
Turning to the issue before us, the statutory text frames our analysis. West
Virginia Code § 3-10-5 addresses the filling of vacancies such as that created by Senator
Hall’s departure and provides as follows:
(a) Any vacancy in the office of State Senator or member of the
House of Delegates shall be filled by appointment by the
Governor, from a list of three legally qualified persons
submitted by the party executive committee of the party with
which the person holding the office immediately preceding the
vacancy was affiliated. The list of qualified persons to fill the
vacancy shall be submitted to the Governor within fifteen days
after the vacancy occurs and the Governor shall duly make his
or her appointment to fill the vacancy from the list of legally
qualified persons within five days after the list is received. If the
list is not submitted to the Governor within the fifteen-day
period, the Governor shall appoint within five days thereafter a
legally qualified person of the same political party as the person
vacating the office.
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(b) In the case of a member of the House of Delegates, the list
shall be submitted by the party executive committee of the
delegate district in which the vacating member resided at the
time of his or her election or appointment. The appointment to
fill a vacancy in the House of Delegates is for the unexpired
term.
(c) In the case of a State Senator, the list shall be submitted by
the party executive committee of the state senatorial district in
which the vacating senator resided at the time of his or her
election or appointment. The appointment to fill a vacancy in
the State Senate is for the unexpired term, unless section one of
this article requires a subsequent election to fill the remainder of
the term, which shall follow the procedure set forth in section
one of this article.
W. Va. Code § 3-10-5 (emphasis supplied).
In this case, the petitioners, as well as Governor Tomblin and amicus curiae,
West Virginia ALF/CIO and the West Virginia State Building and Construction Trades
Council, essentially argue that the subject statute is susceptible to differing interpretations.
Specifically, they contend that the statute is unclear as to whether the party “affiliation”
refers to the time of election or the time of vacancy.
To the contrary, the respondents, as well as amicus curiae, West Virginia
Chamber of Commerce, the Attorney General’s Office, and Senate President William Cole,
argue that the language of the statute is unmistakably clear and requires the governor to select
a replacement from a list submitted by the Republican Party’s Ninth Senatorial District
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Executive Committee.
Upon this Court’s review, we find West Virginia Code § 3-10-5 clear and
unambiguous. It succinctly states the requirements for filling a vacancy in the West Virginia
Legislature. Subsection (a) provides that a vacancy is to be filled through appointment by
the governor. The list to be utilized by the governor in selecting the appointee is to be
composed of “three legally qualified persons submitted by the party executive committee of
the party with which the person holding the office immediately preceding the vacancy was
affiliated.” W. Va. Code § 3-10-5(a). Subsection (a) also provides that if a list is not
submitted within fifteen days, the governor is to appoint, within five days thereafter, “a
legally qualified person of the same political party as the person vacating the office.” Id.
Although subsection (c) provides instruction as to which geographic entity
within the party is to submit the list of qualified candidates, that subsection does not affect
the question of the party from which the list designated in subsection (a) is to be generated.
Subsection (a) clearly provides that the list is to be submitted by the party with which the
officeholder was most recently affiliated. See id. Thus, this Court finds the statute patently
explicit, “admitting of no construction or application other than that which it clearly
demands.” Martin v. Ellisor, 223 S.E.2d 415, 418 (S.C. 1976).
8
We reject petitioners’ reasoning because their reading of the statute is
profoundly strained and constitutes a misreading of statutory language that is clear in its
meaning. They contend that the replacement for a vacating senator should be chosen from
the political party with which he or she was affiliated at the time of election rather than the
party with which he or she was affiliated immediately preceding the vacancy. As explained
above, this Court is obligated to enforce the statute in accordance with its plain meaning.
State ex. rel. Safe-Guard Products Int’l. v. Thompson, 235 W.Va. 197, 200, 772 S.E.2d 603,
606 (2015) (holding that clear and unambiguous statute can not be interpreted by courts);
Stanley v. Stanley, 233 W.Va. 505, 510, 759 S.E.2d 452, 457 (2014) (recognizing that statute
is open to construction only where legislation is ambiguous); Martin v Hamblet, 230 W.Va.
183, 187, 737 S.E.2d 80, 84 (2012) (finding that clear and unambiguous statutory provision
will not be interpreted by courts).
It is undisputed that Senator Hall was affiliated with the Republican Party
immediately preceding the vacancy and had been so affiliated since November 2014. The
legislature’s use of the phrase “immediately preceding the vacancy” is manifestly plain,
enunciating a specific and incontrovertible time criterion for the determination of the
vacating officeholder’s party affiliation.
Dissatisfied with the text of the statute, the petitioners sought to identify and
9
apply an overarching legislative goal that purports to promote the will of the voters.
However, any analysis which fails to provide reasonable meaning to the phrase “immediately
preceding the vacancy” is wholly improper.2 This Court will not alter the text in order to
satisfy the policy preferences of the petitioners. They “should not seek to amend the statute
by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co, Inc., 534 U.S. 438, 462
(2002). “Preserving the separation of powers is one of this Court’s most weighty
responsibilities.” Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1954-55 (2015)
(Roberts, C.J., dissenting). In performing our constitutional duties, we decline the petitioners’
request to encroach upon the power of the Legislature. “Liberty is always at stake when one
or more of the branches seeks to transgress the separation of powers.” Clinton v. City of
N.Y., 524 U.S. 417, 450 (1998) (Kennedy, J., concurring).
In advancing their arguments, the petitioners direct this Court’s attention to
opinions of other jurisdictions that have encountered ambiguous statutes. Such an approach
proves unworkable because those decisions interpreted significantly dissimilar appointment
statutes and they all were determined to involve ambiguous statutory language. In two cases
primarily relied upon by the petitioners, Richards v. Board of County Commissioners of
2
See Syl. Pt. 11, in part, Brooke B. v. Donald Ray C., II, 230 W.Va. 355, 738 S.E.2d
21 (2013) (“It is not for this Court to arbitrarily read into a statute that which it does not
say.”). The petitioners’ reading of the statute would render the statute’s temporal reference
to “immediately preceding the vacancy” superfluous.
10
Sweetwater County, 6 P.3d 1251 (Wyo. 2000), and Wilson v. Sebelius, 72 P.3d 553 (Kan.
2003), the statutes at issue were silent as to the time-frame for determining the vacating
official’s party affiliation. Thus, the statutes were found to be ambiguous subsequent to
vacancies occurring in the office after a political party change. The reviewing courts then
embarked upon examinations of public policy arguments designed to support the mandate
of the voters. While the principles advanced in Richards and Wilson are arguably laudable,
this Court’s role is to apply the language of our governing statute. Finding no ambiguity in
the West Virginia statute, we are not permitted to engage in an analysis of public policy
issues, as addressed in those other jurisdictions. The clear directive of our statute, as
addressed above, requires the governor to choose an appointee from a list of candidates
submitted by the executive committee of the political party to which the vacating legislator
belonged immediately prior to vacating the office.
We are also compelled to address issues raised during oral argument of this
case regarding the constitutionality of the statute and the United States Supreme Court’s
decision in Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982).3 This Court has
consistently held that “‘[w]hen the constitutionality of a statute is questioned every
3
Rodriquez was not significantly addressed in the petitioners’ brief; nor was a
constitutional argument based on Rodriguez advanced in a thorough manner. We address the
constitutional issue evaluated in Rodriguez based only upon the discussion which ensued
during oral argument.
11
reasonable construction of the statute must be resorted to by a court in order to sustain
constitutionality, and any doubt must be resolved in favor of the constitutionality of the
legislative enactment.’ Syl. Pt. 3, Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).”
Syl. Pt. 3, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011).
In Rodriguez, the United States Supreme Court held that no provision of the
federal Constitution expressly mandates any particular procedure to be followed by the states
in filling legislative vacancies. 457 U.S. at 8. The appointment statute in Rodriguez was
found to be constitutional, permitting an interim vacancy to be filled by the political party of
the legislator who had vacated the seat. The Supreme Court rejected the appellants’
contention that they had a constitutional right to elect the representatives and that the
legislative vacancies must be filled by special election. 457 U.S. at 10.
In analyzing the issues raised therein, as well as the underlying statute,4 the
Supreme Court in Rodriguez identified several factors which supported the constitutionality
of the Puerto Rico statute. For instance, the United States Supreme Court indicated that the
Puerto Rico statute did “not restrict access to the electoral process or afford unequal
4
The Puerto Rico statute at issue in Rodriquez was interpreted to vest a political party
with the power to fill an interim vacancy in the Puerto Rico legislature. 457 U.S. at 14. The
Rodriguez case did not involve any alteration in political party between the time of election
and the time of vacancy.
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treatment to different classes of voters or political parties.” Id. at 10. “All qualified voters
have an equal opportunity to select a district representative in the general election; and the
interim appointment provision applies uniformly to all legislative vacancies, whenever they
arise.” Id. Additionally, the Rodriguez Court explained:
the . . . choice to fill legislative vacancies by appointment rather
than by a full-scale special election may have some effect on the
right of its citizens to elect the members of the Puerto Rico
Legislature; however, the effect is minimal, and like that in
Valenti, it does not fall disproportionately on any discrete group
of voters, candidates, or political parties.
Id. at 12. “Moreover, the interim appointment system plainly serves the legitimate purpose
of ensuring that vacancies are filled promptly, without the necessity of the expense and
inconvenience of a special election. The Constitution does not preclude this practical and
widely accepted means of addressing an infrequent problem.” Id.
The Supreme Court in Rodriguez also explained the nature of the alleged rights
of association and equal protection, addressing the appellants’ argument that their rights were
violated by their exclusion, based on party affiliation, from the election held to select a
successor to the legislative office at issue. The Court disagreed, finding both that such
argument misconceived the nature of the election and that a statute authorizing a political
party to designate an interim replacement did not violate rights of association or equal
13
protection of the laws. Id.5 The Court further emphasized the substantial deference provided
to state legislatures in enacting statutes enunciating the appropriate means of filling vacancies
within their legislative bodies.6
This Court addressed the Rodriguez holding in State ex rel. Robb v. Caperton,
191 W. Va. 492, 446 S.E.2d 714 (1994). In that case, Justice Miller delivered the opinion
of the Court, and we held that a vacancy in the office of a Supreme Court Justice or circuit
judge may be filled by the governor by appointment. This Court noted “we are not cited nor
are we aware of any federal constitutional attack that has been made successfully on a state’s
constitutional or legislative enactment for filling vacancies in state offices.” Id. at 497, 446
S.E.2d at 719.7 This Court summarized the Rodriguez opinion as follows:
5
See also Trinsey v. Pennsylvania, 941 F.2d 224 (3d Cir. 1991), cert. denied, 502 U.S.
1014 (upholding Pennsylvania statute that did not require primary election before general
election to fill vacancy in United States Senate); Lynch v. Illinois State Bd. of Elections, 682
F.2d 93, 97 (7th Cir.1982) (upholding Illinois election law providing for Mayor to fill
aldermanic vacancy by appointment).
6
“The methods by which the people of Puerto Rico and their representatives have
chosen to structure the Commonwealth’s electoral system are entitled to substantial
deference.” 457 U.S. at 8.
7
In Robb, this Court also evaluated a New York decision in Valenti v. Rockefeller, 292
F. Supp. 851 (S.D.N.Y.1968), aff’d, 393 U.S. 404-06 (1969), wherein a “district court was
convened to consider whether New York’s election law allowing an election to fill the
vacancy in the office for United States Senator to be deferred for twenty-nine months
violated the Seventeenth Amendment to the United States Constitution.” Robb, 191 W. Va.
at 497, 446 S.E.2d at 719. The issue of the extended time period for filling a position by
“temporary” appointment was raised in Valenti. The Valenti court reasoned as follows:
14
The claim was made that this [Puerto Rico statute] procedure
excluded voters who were not members of the political party
from voting and, thereby, denied them equal protection. The
court in Rodriguez found no constitutional infirmity and made
this summary of legal principles: “No provision of the Federal
Constitution expressly mandates the procedures that a state or
the Commonwealth of Puerto Rico must follow in filling
vacancies in its own legislature. . . . Moreover, we have
previously rejected claims that the Constitution compels a fixed
method of choosing state or local officers or representatives.”
457 U.S. at 8-9, 102 S.Ct. at 2199, 72 L. Ed. 2d at 634-35.
(Citations and footnotes omitted).
Robb, 191 W. Va. at 498, 446 S.E.2d at 720 (emphasis provided). In Robb, this Court
ultimately upheld the action as required by the constitutional and statutory provisions, finding
that “the legislature’s language is too plain to interpret” in the manner advanced by the party
seeking relief. Id. at 496, 446 S.E.2d at 718.8
The constitutionality of a political appointment was also challenged in State
ex rel. Herman v. Klopfleisch, 651 N.E.2d 995 (Ohio 1995). An unsuccessful Democratic
In this case we are confronted with no fundamental imperfection
in the functioning of democracy. No political party or portion
of the state’s citizens can claim it is permanently disadvantaged
. . . or that it lacks effective means of securing legislative reform
if the statute is regarded as unsatisfactory. We have, rather, only
the unusual, temporary, and unfortunate combination of a tragic
event and a reasonable statutory scheme.
Valenti, 292 F. Supp. at 851 (emphasis supplied).
8
In Robb, we were requested, through writ of mandamus, to require the filling of the
vacancy left by the resignation of the Honorable John Hey in Kanawha County, West
Virginia, at the next general election, in 1994, rather than waiting until the 1996 election.
15
candidate challenged the appointment of a Republican officeholder following the resignation
of an individual who was elected as a Democrat but then switched to the Republican Party
while in office. 651 N.E.2d at 996. The guiding statute was similar to the West Virginia
statute, with the exception that it lacked a temporal reference. It provided only that a vacancy
was to be filled by the central committee “of the political party with which the last occupant
of the office was affiliated.” Id. at 997. Addressing a constitutional challenge to the
appointment of a Republican, the Supreme Court of Ohio cited Rodriquez for the proposition
that no particular procedure is mandated for the filling of vacancies in a state legislature. The
court in Herman found the Democratic challenger’s constitutional argument unavailing. Id.
at 999.9
Examining the West Virginia statute in light of the principles addressed by the
United States Supreme Court in Rodriguez, this Court finds no basis upon which to find our
statute unconstitutional. To the contrary, the Rodrigeuz decision emphasized the
considerable latitude enjoyed by each state with respect to procedures for filling vacancies
in state government. 457 U.S. at 12. Of note was the observation that the choice of filling
vacancies by appointment rather than by special election may affect the rights of the citizens
9
The court in Herman, despite its finding that the statute was ambiguous because it
did not contain a temporal reference to the time of election or the time of vacancy, found no
violation in the seating of a Republican to replace the officeholder who had run as a
Democrat and changed to the Republican Party while in office. 651 N.E.2d at 996.
16
to elect its members of the Puerto Rico legislature. Id. However, the effect was deemed
“minimal” in Rodriguez and not to fall disproportionately on any discrete group of voters by
applying the statute’s provisions. Id. Likewise, the West Virginia statute’s effect on the
rights of the citizens of this state to elect specific members of the West Virginia Legislature
is minimal. The effect does not fall disproportionately on a discreet group of voters or
political parties and affects both political parties equally, depending in each instance upon
the party affiliation of the person creating a vacancy. Equal treatment of voters, based upon
an unforeseeable event such as the changing of political parties and a subsequent vacancy,
does not constitute a violation of equal protection.
In ruling on this mandamus action, we emphasize that a judicial determination
of whether a vacancy statute is ambiguous is not a political decision. Although a court might
profoundly disagree with a particular statute or may even prefer another outcome, the
judiciary is prohibited from substituting its judgment for that of the legislative branch, an
action tantamount to improperly assuming the role of legislators.10 Were this Court to rewrite
the clause in an inauspicious attempt to achieve any certain result, we could legitimately be
accused of legislating from the bench. Euphemistic reliance on statutory interpretation to
10
In a democratic society, the power to make the law rests with those chosen by the
people. The judiciary’s role, however, is significantly more confined. We are asked only “to
say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803); see e.g., I.N.S. v.
Chadha, 462 U.S. 919, 944 (1983) (observing that statute’s “wisdom is not the concern of
the courts.”).
17
obtain a specific result would frustrate the tripartite principles of government upon which this
state was founded and still firmly rests.
Resolution of this dispute is purely a matter of statutory application, be it a
Democrat transforming into a Republican, or a Republican becoming a Democrat. The
statute applies with equal force to each situation and must be interpreted in precisely the
same fashion regardless of the underlying party disloyalty demonstrated by the changeling.
In the final analysis, we affirm the primacy of the Legislature’s power to enact statutes and
this Court’s constitutional mandate to apply the laws as written. Our decision is grounded
in law, not in ideology or politics.
IV. Conclusion
Based upon the foregoing, this Court finds no ambiguity in West Virginia Code
§ 3-10-5. Accordingly, we deny the requested writ of mandamus seeking to direct the
Governor to fill the current vacancy in the West Virginia Senate from a list of three
candidates to be selected by the petitioners. The vacancy is to be filled according to the
explicit provisions of the statute, from a list of three candidates to be selected by the
respondent West Virginia Republican Executive Committee for the Ninth Senatorial District,
based upon Senator Hall’s most recent affiliation with the Republican Party.
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The Clerk is ordered to issue the mandate in this case forthwith.
Writ denied.
19