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

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W.Va. Code § 3-10-5 (2013) (emphasis added). While the Court need not consider the
legislative history of this unambiguous statute,1 such history makes clear that the statute
accommodates, and specifically contemplates, the issue presented.
When West Virginia Code § 3-10-5 was enacted in 1863, and for the following
sixty years, there was no reference to political party affiliation because any vacancy in the
state senate that occurred during that period was filled through a “writ of election.”2 In 1925,
the statute, then codified as West Virginia Code Chapter 4, §7, was amended and revised to
create separate procedures for filling vacancies in the state senate depending upon whether
1
See Boatwright, 184 W.Va. at 29, 399 S.E.2d at 59 (quoting Cooper v. Tazewell
Square Apartments, Ltd., 577 F.Supp 1483, 1487 (W.D.Va.1984), rev’d on other grounds,
606 F. Supp. 1397 (W.D.Va.1985)) (“When the statute is unambiguous on its face, there is
no real need to consider its legislative history.”).
2
A writ of election to fill a vacancy in the legislature shall
be issued by the governor when the vacancy occurs during the
recess of the legislature, and by the president of the senate or
speaker of the house of delegates, as the case may be, when such
vacancy happens during the session, or has not been previously
filled. The said writ shall be directed to the sheriff of the proper
county, or to the sheriffs of the several counties included in the
delegate or senatorial district, as the case may be, and shall
prescribe the day of election; and every sheriff, on receiving the
same, shall immediately give notice thereof to the supervisors
and inspectors of election of the several townships of his county;
and shall also cause notice of the same to be conspicuously
posted at every place of voting in such county, and to be
published in the newspapers, if there be any, printed therein.
1863 W.Va. Acts 127.
2
the departing senator died, or left office by resignation or some other means. When the
vacancy was the result of death, we see the first mention of political parties:
Whenever a vacancy in the legislature shall occur by the
death of a member of the senate, the clerk of the circuit court
from which county said senator resided at the time of his
election shall immediately notify the chairman and secretary of
the senatorial executive committee of said senatorial district of
the political party of which said member of the legislature
belonged, of such vacancy, . . . and it shall be the duty of
senatorial executive committee to name a person duly qualified
under the law to fill the vacancy, and the person so named by the
senatorial executive committee shall be a member of the same
political party to which the former senator belonged and from
the county in which he resided at the time of his election, and it
shall be the duty of the chairman and secretary of the senatorial
executive committee to immediately certify to the governor of
the state of the act of the meeting naming a person for the
vacancy, and the governor of the state then shall appoint such
person to fill such vacancy until a senator is elected at the next
general election and has qualified. . . .
W.Va. Code § 4-7 (1925) (emphasis added); see also 1925 W.Va. Acts 176.3 Although the
political party language was added in 1925, presumably because vacancies would now be
filled by appointment, as opposed to the previously required writs of election, the legislature
did not at that time include any temporal language with regard to the “political party of which
said member of the legislature belonged[.]”
3
When the vacancy occurred by “resignation or otherwise than by death,” the vacancy
continued to be filled through a “writ of election.” W.Va. Code § 4-7 (1925).
3
During the recodification of the West Virginia Code in 1931, the subject statute
was redesignated as West Virginia Code § 3-10-6, and provided the following temporal
component regarding party affiliation that has remained to this day:
Any vacancy in the office of state senator . . . shall be
filled by appointment by the governor, in each instance from a
list of three legally qualified persons submitted by . . . the party
executive committee of the state senatorial district in the case of
a state senator, of the party with which the person holding the
office immediately preceding the vacancy was affiliated . . . .
W.Va. Code § 3-10-6 (1931) (emphasis added).4 Although legislative history in West
Virginia is minimal, at best, the 1931 Code contains “Revisers’ Notes.” For this particular
statute, the Revisers’ Note commented on the filling of a vacancy in the legislature by
appointment, noting that a special election to fill such a vacancy “would incur an
unjustifiable expenditure of public funds.” Id. The Revisers’ Note also references the fact
that the “the appointment [will now] be made from a list of three submitted by . . . the party
executive committee of the state senatorial district, as to a state senator[.]” (Emphasis added).
This was a change from the statute as it existed in 1925, which provided for the senatorial
4
Available legal resources reveal that there are no bound volumes of the West Virginia
Code for the years 1926 through 1930. There are, however, bound copies of the Report of
the Revision and Codification Commission published in 1927, 1928, and 1929. This
Commission was appointed pursuant to a legislative act passed in 1921, entitled “An Act
providing for the revision, codification and indexing . . . of the statute law of West Virginia
. . . .” W.Va. Report of the Revision and Codification Commission (1927). The
Commission’s Report sets forth the temporal component that was included in the
recodification of the West Virginia Code in 1931.
4
executive committee to name only one qualified person to fill the vacancy, as indicated
above.
In 1963, the legislature repealed chapter three of the West Virginia Code and
enacted a new chapter three, “all relating to the establishment, administration and regulation
of elections and election procedures[.]” 1963 W.Va. Acts 221. At this time, section 6 (West
Virginia § 3-10-6) was redesignated as section 5 (West Virginia Code § 3-10-5). The
imposition of the mandatory time limit for the executive committee to submit the list of three
names from which the Governor is to fill the senate vacancy, and the consequences if the
committee fails to do so, was added by the legislature in 1975, as follows: “If such 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 political party of the person vacating the
office.” W.Va. Code § 3-10-5 (1975) (emphasis added); see also 1975 W.Va. Acts 415.5
5
In 2010, the legislature subdivided the statute into its current subsections (a), (b), and
(c), and made minor changes to the last sentence of subsection (a), as follows: “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.” 2010 W.Va. Acts 951-52. Subsection (c) was revised in 2013 to
provide, as follows:
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
(continued...)
5
As reflected in the legislative history discussed above, and for the last eighty-
five years, West Virginia Code § 3-10-5 has clearly provided that “the party with which the
person holding the office immediately preceding the vacancy was affiliated[]” dictates the
party of his or her appointed replacement. W.Va. Code § 3-10-5(a) (emphasis added). It is
this temporal component in West Virginia Code § 3-10-5(a) that renders the Kansas and
Wyoming cases relied upon by the petitioners inapplicable and unpersuasive to the matter at
hand. Unlike the subject statute, the Kansas and Wyoming statutes lacked a temporal
provision. See Wilson v. Sebelius, 72 P.3d 553 (Kan. 2003) (interpreting statutory phrase “of
the party” and finding that party affiliation at time of election controls); Richards v. Bd. of
Cnty. Comm’rs, 6 P.3d 1251 (Wyo. 2000) (finding statutory language “the political party to
which the member whose office is vacant belonged” to be ambiguous and concluding that
political party to which commissioner belonged at time of his election controlled).6
5
(...continued)
article requires a subsequent election to fill the remainder of the
term, which shal follow the procedure set forth in section one of
this article.
2013 W.Va. Acts 850-51.
6
In 2004, the Wyoming legislature amended Wyoming Code § 18-3-524 by deleting
the word “belonged” in the phrase “of the political party to which the member whose office
is vacant belonged[;]” by adding language that now reads: “of the political party to which the
member whose office is vacant represented at the time of his election . . . or at the time of
his appointment if not elected to office[;]” and by adding subsection (d), which states, in part,
that “a person shall be considered to ‘represent’ a political party if he was a nominee of that
political party when elected to office or when appointed to fill a vacancy in office.” Wyo.
Stat. Ann. § 18-3-524(a) and (d) (emphasis added).
6
Notwithstanding the clear and unambiguous language in West Virginia Code
§ 3-10-5(a), the petitioners contend the statute is ambiguous and essentially ask this Court
to amend the statute with language that would require a vacancy in the state senate to be
filled by a member of the political party with which the vacating senator was affiliated at the
time of his or her election. However, as I have previously explained, “‘[c]ourts are not free
to read into the language what is not there, but rather should apply the statute as written.’
State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994).” Robinson
v. City of Bluefield, 234 W.Va. 209, 220-21, 764 S.E.2d 740, 751-52 (2014) (Loughry, J.,
dissenting). In fact,“‘[c]ourts must presume that a legislature says in a statute what it means
and means in a statute what it says there.’ Martin v. Randolph Cnty. Bd. of Educ., 195 W.Va.
297, 312, 465 S.E.2d 399, 415 (1995) (internal citation omitted).” Robinson, 234 W.Va. at
220, 764 S.E.2d at 752 (Loughry, J., dissenting). Moreover, when “‘[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.’” Todd M.S. v. Julie M.G.,
230 W.Va. 612, 619-20, 741 S.E.2d 837, 844-45 (2013) (quoting Syl. Pt. 2, State v. Epperly,
135 W.Va. 877, 65 S.E.2d 488 (1951)).
Here, the “immediately preceding the vacancy” language in West Virginia
Code § 3-10-5(a) has been in place since at least 1931. During the intervening decades, the
legislature could have amended this statute by removing this particular language and
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replacing it with language that would require looking to the vacating senator’s political party
affiliation at the time of his or her election for purposes of filling the vacancy. It has not
done so. Furthermore, ambiguity does not materialize at the mere suggestion of a dispute.
The fact that the petitioners have conjured an argument feigning confusion over clear
statutory language does not, in itself, create an ambiguity. Importantly, absent ambiguity,
this Court is constrained to apply the statute, as written.7
7
Although Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982), was mentioned
in a footnote in the petitioners’ appellate brief, during oral argument, a member of the Court
elicited a discussion as to whether Rodriguez would call into question the constitutionality
of West Virginia Code § 3-10-5. Notwithstanding the absence of any meaningful discussion
of Rodriguez in the parties’ briefs, there are significant differences between West Virginia
Code § 3-10-5 and the statutory procedure for filling vacancies under consideration in
Rodriguez. Further, in Rodriguez, the statute allowed the political party of the member
whose seat was vacated to make an appointment to fill the vacancy by holding an election
among its members. The appellants argued that this procedure, which excluded voters who
were not members of that political party from voting, denied them equal protection. Citing
its prior rulings, the Court reaffirmed that the filling of a vacancy on an interim basis by
appointment, rather than by election, is constitutional and that “[n]o provision of the Federal
Constitution expressly mandates the procedures that a state . . . must follow in filling
vacancies in its own legislature.” Id. at 8. The Court further explained that “Puerto Rico’s
appointment mechanism is not rendered constitutionally defective by virtue of the fact that
the interim appointment power is given to the political party with which the previous
incumbent was affiliated.” Id. at 12. Importantly, the Court also noted that “[t]he methods
by which . . . Puerto Rico . . . [has] chosen to structure the Commonwealth’s electoral system
are entitled to substantial deference.” Id. at 8. Here, the legislature has chosen to give the
party executive committee with which the person holding the office immediately preceding
the vacancy was affiliated the authority to name three qualified persons to fill the vacancy.
W.Va. Code § 3-10-5; see also W.Va. Const., art. VI, § 24 (“Each house shall determine the
. . . qualifications of its own members.”). Accordingly, and as thoroughly explained in the
majority opinion, the rulings set forth in Rodriguez do not render West Virginia Code § 3-10-
5 unconstitutional.
8
When Mr. Hall vacated his senate seat on January 3, 2016, he was affiliated
with the Republican Party. Under these facts, and giving full force and effect to West
Virginia Code § 3-10-5, as written, I am compelled to conclude that although Mr. Hall was
affiliated with the Democratic Party at the time of his election in 2012, his party affiliation
at the time he vacated his senate seat controls. W.Va. Code § 3-10-5(a).
Notwithstanding the political nature of the instant matter, “[a]n independent,
fair and impartial judiciary is indispensable to our system of justice. The United States legal
system is based upon the principle that an independent, impartial, and competent judiciary,
composed of men and women of integrity, will interpret and apply that law that governs our
society.” Preamble, Code of Jud. Conduct. As mandated by the Code of Judicial Conduct,
a judge “shall not be swayed by public clamor or fear of criticism” and “shall not permit
family, social, political, financial, or other interests or relationships to influence the judge’s
judicial conduct or judgment.” Canons 2.4(A) and (B). Indeed,
[a]n independent judiciary requires that judges decide
cases according to the law and facts, without regard to whether
particular laws or litigants are popular or unpopular with the
public, the media, government officials, or the judge’s friends
or family. Confidence in the judiciary is eroded if judicial
decision making is perceived to be subject to inappropriate
outside influences.
Official Commentary [1], Canon 2.4. In furtherance of these precepts, it is imperative that
judges interpret and apply the law objectively and without regard to whether they personally
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approve or disapprove of the law in question. Equally imperative to American concepts of
justice and the rule of law is that parties respect and abide by judicial decisions.8
For these reasons, as well as those expressed by the majority of this Court, I
agree that the Governor must select a person from the list of legally qualified persons
submitted by the West Virginia Republican Executive Committee for the Ninth Senatorial
District to fill the vacancy in the state senate created by Mr. Hall’s resignation. Indeed, the
Governor has a constitutional duty to fill such vacancies.9 In the event the voters in the
affected senatorial district disapprove of the Governor’s selection, those same voters will
have the opportunity during the primary and general elections held later this year to select a
different person to represent their district in the State Senate. Accordingly, I respectfully
concur.
8
See Syl. Pt. 1, United Mine Workers of Amer. v. Faerber, 179 W.Va. 73, 365 S.E.2d
353 (1986) (“When this Court acts within its jurisdiction, its orders shall be promptly obeyed,
or contempt is a proper sanction.”).
9
Any suggestion that the Senate is not bound to seat such appointee under the rubric
of “judging the qualifications” of its members is misplaced. The legislature has statutorily
prescribed the legal qualifications of such member. Once the Governor selects a person to
fill Mr. Hall’s vacancy from the list of legally qualified persons submitted by the West
Virginia Republican Executive Committee for the Ninth Senatorial District, the appointment
will be in compliance with the pertinent statutory requirements and this Court’s opinion, after
which the Senate will be bound to seat the Governor’s appointee.
10