Brent D. Benjamin v. Elizabeth D. Walker

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
FILED
______________________ April 19, 2016
released at 3:00 p.m.
RORY L. PERRY II, CLERK
NO. 16-0228 SUPREME COURT OF APPEALS
______________________ OF WEST VIRGINIA
BRENT D. BENJAMIN, candidate for the
Supreme Court of Appeals of West Virginia,
Petitioner
v.
ELIZABETH D. WALKER, candidate for the
Supreme Court of Appeals of West Virginia;
West Virginia Secretary of State NATALIE TENNANT;
West Virginia State Election Commission members
GARY A. COLLIAS and VINCENT P. CARDI,
Respondents
_________________________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Tod J. Kaufman, Chief Judge
Civil Action No. 16-AA-7
REVERSED
_______________________________________________________________________
Submitted: March 23, 2016
Filed: April 19, 2016
Benjamin Bailey K&L GATES LLP
Jonathan R. Marshall Thomas C. Ryan
Maryl C. Sattler 210 Sixth Avenue
BAILEY & GLASSER, LLP Pittsburgh, PA 15222
209 Capitol Street Attorney for Respondent
Charleston, WV 25301 Walker
Attorneys for Petitioner
Benjamin
Richard L. Gottlieb
Webster J. Arceneaux, III
Spencer D. Elliott
LEWIS GLASSER CASEY & ROLLINS, PLLC
300 Summers St., Suite 700
Charleston, WV 25301
Attorneys for Respondents
Tennant, Collias & Cardi
ACTING CHIEF JUSTICE THOMAS H. KEADLE
delivered the Opinion of the Court.
CHIEF JUSTICE MENIS E. KETCHUM,
JUSTICE ROBIN JEAN DAVIS,
JUSTICE BRENT D. BENJAMIN,
JUSTICE MARGARET L. WORKMAN, and
JUSTICE ALLEN H. LOUGHRY II, deeming themselves
disqualified, did not participate in the decision of
this case.
SENIOR STATUS JUDGE THOMAS H. KEADLE,
as Acting Chief Justice,
SENIOR STATUS JUDGE JAMES O. HOLLIDAY,
JUDGE JOHN W. HATCHER, JR.,
JUDGE JAMES P. MAZZONE, and
JUDGE THOMAS C. EVANS, III, sitting by
temporary assignment.
SYLLABUS BY THE COURT
1. “On appeal of an administrative order from a circuit court, this Court
is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and
reviews questions of law presented de novo; findings of fact by the administrative
officer are accorded deference unless the reviewing court believes the findings to be
clearly wrong.” Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “In cases where the circuit court has amended the result before the
administrative agency, this Court reviews the final order of the circuit court and the
ultimate disposition by it of an administrative law case under an abuse of discretion
standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W.
Va. 588, 474 S.E.2d 518 (1996).
3. “A regulation that is proposed by an agency and approved by the
Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures
Act, W. Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and
effect of law.” Syl. Pt. 5, Smith v. West Virginia Human Rights Comm’n, 216 W. Va. 2,
602 S.E.2d 445 (2004).
4. “’It is the duty of a court to construe a statute according to its true
intent, and give to it such construction as will uphold the law and further justice. It
is as well the duty of a court to disregard a construction, though apparently
i
warranted by the literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.’ Syllabus Point 2, Click v. Click, 98 W. Va. 419,
127 S.E. 194 (1925).” Syl. Pt. 2, Chevy Chase Bank v. McCamant, 204 W. Va. 295, 512
S.E2d 217 (1998).
5. Under the “West Virginia Supreme Court of Appeals Public Campaign
Financing Program,” W. Va. Code § 3-12-1 et seq. (2014), where a candidate is
required to file a report electronically and is unable to do so for reasons beyond his
or her control, the West Virginia State Election Commission has discretion to grant a
hardship exemption to the candidate as to the form of the report and to extend the
deadline for filing of the report in its revised form.
6. Under the “West Virginia Supreme Court of Appeals Public Campaign
Financing Program,” W. Va. Code § 3-12-1 et seq. (2014), where a qualifying
contribution is made to a candidate in the form of an electronic payment, as
authorized by W. Va. Code § 3-123(13), an electronic receipt containing a unique
transaction identifier is a sufficient “signature” of the contributor within the
meaning of W. Va. Code § 3-12-9(b)(2),
ii
KEADLE, Acting Chief Justice:
Petitioner Brent D. Benjamin is a Justice of the Supreme Court of Appeals of
West Virginia and a candidate seeking re-election to the Court in the upcoming May
10, 2016, non-partisan election. Although Justice Benjamin began his election
campaign as a “traditional candidate,” i.e., a candidate financed by contributions
from supporters, he later made the decision to enter the West Virginia Supreme
Court of Appeals Public Campaign Financing Program, W. Va. Code § 3-12-1 et seq.,
and filed his formal Declaration of Intent to do so on September 11, 2015.
Thereafter, Justice Benjamin became a “participating candidate” under the Act.
On February 10, 2016, the West Virginia State Elections Commission (“the
Commission”) certified Justice Benjamin’s campaign for public funding under the
Act, overruling a number of challenges filed by Respondent Elizabeth D. Walker, a
traditional candidate also seeking election to the Court.
Pursuant to the West Virginia Administrative Procedures Act, W. Va. Code §
29A-5-1 et seq., Respondent Walker appealed the Commission’s decision to the
Circuit Court of Kanawha County, which ruled in favor of Walker on all issues and
held that “[t]he SEC’s certification of Justice Benjamin was clearly erroneous and
must be REVERSED because it directly violated Walker’s constitutional rights to free
speech and substantive due process under the First and Fourteenth Amendments of
the United States Constitution.” This appeal followed.
1
After thorough review of the record Appendix, the parties’ briefs and oral
arguments, and the applicable law, we reverse the judgment of the court below and
reinstate the decision of the Commission certifying Justice Benjamin.
I. FACTS AND PROCEDURAL HISTORY
West Virginia Code § 3-12-1 et seq. (2014), the “West Virginia Supreme
Court of Appeals Public Campaign Financing Program” (“the Act”), was enacted by
the West Virginia Legislature to “protect the Constitutional rights of voters and
candidates from the detrimental effects of increasingly large amounts of money
being raised and spent to influence the outcome of elections, protect the impartiality
and integrity of the judiciary, and strengthen public confidence in the judiciary….”
W. Va. Code § 3-12-1(10). Pursuant to the Act as amended in 2013, there are now
two types of candidates seeking a seat on the Supreme Court of Appeals of West
Virginia: traditional candidates who proceed under traditional campaign finance
rules, and “participating candidates” who apply to receive public financing under
the Act. Significantly, nothing in the statute prevents a traditional candidate from
becoming a participating candidate, which is what happened in this case when
Justice Benjamin filed his Declaration of Intent under the Act on September 11,
2015.1
1 The Declaration must be filed prior to the end of the “qualifying period,” see text
infra, which begins on September 1 of the year preceding the election year and ends
on the last Saturday in January of the election year. W. Va. Code § 3-12-3(13).
2
There are two distinct time periods under the Act. The first is the
“exploratory period,” W. Va. Code § 3-12-3(5), which is the period during which a
participating candidate may raise and spend contributions not to exceed $1,000.00
individually and not to exceed $20,000.00 in the aggregate, prior to the date on
which the candidate files his or her formal Declaration of Intent.2 The second
distinct time period under the Act is the “qualifying period,” W. Va. Code § 3-12-
3(14), beginning upon the filing of the Declaration and concluding on January 30,
during which a participating candidate must gather at least 500 “qualifying
contributions” from West Virginia voters. W. Va. Code § 3-12-9(c). Each such
contribution may be as little as $1.00, but can in no event exceed $100.00. W. Va.
Code § 3-12-9(a). The total amount of the qualifying contributions must be no less
than $35,000.00 and no more than $50,000.00. Id. If the aggregate amount of a
participating candidate’s contributions exceeds $50,000.00, the excess is paid over
into the Fund. Id.During both the exploratory and qualifying periods, a participating
candidate is required to file monthly reports of contributions, expenditures and
obligations “along with all receipt for contributions received during the prior
month…,” W. Va. Code § 3-12-13(b), such reports to be filed electronically with the
Secretary of State. Id. As previously set forth, Justice Benjamin was a traditional
candidate until September 11, 2015, when he filed his Declaration of Intent and
became a participating candidate, and therefore had never been obligated to file any
2The Declaration may be filed anytime between September 1 of the year prior to the
election and January 30 of the election year.
3
reports of contributions since his campaign was not governed by the Act. When he
attempted to file his first such exploratory contributions report on October 1, 2015,
together with his first qualifying contributions report, he discovered that the
software utilized by the Secretary of State would not accept the former filing – a
“computer glitch,” as the Secretary of State’s counsel characterized it before this
Court.3 Justice Benjamin’s representative was assured that since he had in fact
received no exploratory contributions in September, there was nothing for him to
report in October under W. Va. Code § 3-12-13(b); and that all of the exploratory
contributions he had received prior to becoming a participating candidate would be
reported in the final accounting due two business days after the close of the
qualifying period. 4
After a participating candidate has collected the requisite number and
amount of qualifying contributions, he or she applies to the Commission to be
certified to receive public financing. W. Va. Code § 3-12-10(a). The application must
include a sworn statement that the candidate has and will comply with all
requirements of the Program. Id. The application, as well as the sworn statement,
must be filed within two business days of the close of the qualifying period on
January 30. W. Va. Code of State Rules §§ 146-5-6.1 & 6.2. In this regard, since
3 There was never any problem with the filing of Justice Benjamin’s participating
contributions reports, which were duly filed on a monthly basis beginning October
1, 2015.
4 These facts are reflected in an exchange of e-mails contained in the Appendix, and
were confirmed by the Secretary of State in the Commission proceedings.
4
January 30, 2016, fell on a Saturday, the second business day was Tuesday, February
2, 2016.
On February 2, 2016, Justice Benjamin filed his application and sworn
statement, as well as his summary of “[a]ll qualifying contributions received and
funds expended or obligated during the qualifying period together with copies of
any receipts not previously submitted for qualifying contributions.” W. Va. Code § 3-
12-13(c)(2). He did not, however, file his final report of all exploratory
contributions received prior to becoming a participating candidate, W. Va. Code § 3-
12-13(c)(1), because once again, the Secretary of State’s computer system
experienced a “glitch” and would not accept the filing. Thereafter, Justice Benjamin
sought and was granted a hardship exemption and was permitted to file this final
report in paper form on February 8, 2016.
On February 10, 2016, following multiple challenges filed by
Respondent Walker and four lengthy hearings held by the Commission, the
Commission certified Justice Benjamin for receipt of public funding under the Act.
There are three specific provisions in the Act that are at issue in Walker’s
challenges:
First, W. Va. Code §§ 3-12-8(d) & 3-12-13(b), which require a participating
candidate to file monthly reports of all exploratory and qualifying contributions
received during the immediately preceding month;
5
Second, W. Va. Code § 3-12-13(c)(1), which requires a participating
candidate to file a Final Summary Exploratory Financial Report no later than two
business days after the close of the qualifying period; and
Third, W. Va. Code § 3-12-9(b)(2), which requires that every qualifying
contribution to a candidate be acknowledged by a receipt that includes, inter alia,
“the contributor’s signature.”5
With respect to the first statute, Respondent Walker contends that
Justice Benjamin was required to file monthly reports of exploratory contributions
from the outset of his campaign, or at the latest from and after October 1, 2015, and
that his failure to do so disqualifies him from receiving public funding under the Act.
With respect to the second statute, Respondent Walker contends that Justice
Benjamin was required to file his Final Summary Exploratory Financial Report on or
before February 2, 2016, and that although the Commission might have the
authority to grant him a hardship exemption as to the form of the filing (i.e., allow
him to submit his report on paper), it had no discretion to grant him an extension of
the date for filing. With respect to the third statute, Respondent Walker contends
that none of the electronic contributions made to Justice Benjamin’s campaign are
valid because the electronic receipts for these contributions do not include a written
signature.
5 Respondent Walker challenged hundreds of Justice Benjamin’s contributions on
other grounds, and often on multiple grounds; but as discussed infra, the only
ground raised on appeal was the lack of a signature on electronic contribution
forms.
6
On appeal, the circuit court agreed with all of Respondent Walker’s
arguments, concluding that the Commission was clearly erroneous in its resolution
of all three issues and that Respondent Walker’s constitutional rights had been
violated as a result.
II. STANDARD OF REVIEW
This is an administrative appeal and our review is governed by the
same statutory standard that applied to the circuit court’s consideration of this
matter. As set forth in syllabus point one of Muscatell v. Cline, 196 W. Va. 588, 474
S.E.2d 518 (1996): “On appeal of an administrative order from a circuit court, this
Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a)
and reviews questions of law presented de novo; findings of fact by the
administrative officer are accorded deference unless the reviewing court believes
the findings to be clearly wrong. “
We further advised in Muscatell that “[i]n cases where the circuit court
has amended the result before the administrative agency, this Court reviews the
final order of the circuit court and the ultimate disposition by it of an administrative
law case under an abuse of discretion standard and reviews questions of law de
novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
7
III. DISCUSSION
Standing
As a threshold matter, we conclude that under the specific facts of this
case, Respondent Walker has been “adversely affected” by the Commission’s
decision, a prerequisite for standing to appeal under the Administrative Procedures
Act, W. Va. Code § 29A-5-4(a), and the West Virginia Supreme Court of Appeals
Public Financing Program, W. Va. Code § 3-12-10(i).
In this case, as in the companion case of Wooton v. Walker, et al., No.
16-0226 (W. Va. filed April 19, 2016):
Respondent Walker frames the argument as one involving “the
fundamental and sacred constitutional rights of free speech and
substantive due process…,” but there is very little meat on these
constitutional bones. This Court has held that “speech is chilled
‘when an otherwise willing speaker is prevented from speaking,
or cajoled into no longer speaking, by government conduct[,]’”
Men and Women Against Discrimination v. The Family Services
Protection Board, 229 W. Va. 55, 62, 725 S.E.2d 756, 763 (2011),
and it would be a far stretch to conclude that the certification
of [Justice Benjamin] for public funding in any way abridges or chills
Respondent Walker’s free speech rights. She is as free now as she
was prior to February [10], 2016, when the Commission certified
J[ustice Benjamin] for public financing, to conduct her campaign and
articulate the reasons she believes herself to be a candidate
worthy of support at the ballot box.
In any event, “[i]nasmuch as this case may be decided
on statutory grounds, this Court need not address the constitutional
issue.” Hudson v. Bowling, 232 W. Va. 282, 291 n. 13, 752 S.E.2d 313,
322 n. 13 (2013), citing Lee Trace, LLC v. Raynes, 232 W. Va. 183,
191, 751 S.E.2d 703, 711 (2013). Simply put, in this case Respondent
Walker was a party to the proceedings held before the Commission,
and the Commission’s decision at issue in this case was made as
a direct result of her challenges to the Benjamin campaign’s
certification. Under these circumstances, we can perceive of no
8
basis on which to conclude that Respondent Walker has no
first-party standing to appeal from the denial of those challenges.
Wooton, Slip Opinion at 4-5
.
Monthly Reports
The court below held as a matter of law, citing W. Va. Code § 3-12-3(5),
that Justice Benjamin’s “exploratory period” began no later than February 18, 2015,
and ended on September 11, 2015, when he filed his Declaration of Intent. The
court further held, citing W. Va. Code § 3-12-13(b), that accordingly Justice
Benjamin was required to file monthly exploratory reports throughout this period,
up through and including October 1, 2015. Finally, the court held, citing W. Va. Code
§ 3-12-10(b)(5), that because Justice Benjamin did not file any of these monthly
exploratory reports, he could not be certified for public funding since he had not
“met all other requirements of this article….” An examination of the cited provisions
reveals that the court completely misapprehended the specific language of the
relevant statutes, and that the court apparently made, sub silentio, a finding of fact
that is completely unsupported in the record.
We begin with W. Va. Code § 3-12-3(5), which provides:
“Exploratory period” means the period during which a participating
candidate may raise and spend exploratory contributions to examine
his or her chances of election and to qualify for public campaign
financing under this article. The exploratory period begins on January 1
the year before the election in which the candidate may run for Justice
of the Supreme Court of Appeals and ends on the last Saturday in
January of the election year.
9
In the instant case, Justice Benjamin represented to the Commission, to the circuit
court, and to this Court, that until September 11, 2015, when he filed a Declaration
of Intent, he was not “attempting to be certified in accordance with [the Act]” and
was therefore not a participating candidate as that term is defined in W. Va. Code § 3-
12-3(11).
We now examine W. Va. Code § 3-12-13(b), which provides:
During the exploratory and qualifying periods, a participating
candidate or his or her financial agent shall submit, on the first
of each month, a report of all exploratory and qualifying
contributions along with their receipts and an accounting of all
expenditures and obligations received during the immediately
preceding month.
In the instant case, since Justice Benjamin became a participating candidate on
September 11, 2015, he was required to file a report on October 1, 2015, of any
exploratory and qualifying contributions he received in September, the
“immediately preceding month.” The record is undisputed, however, that Justice
Benjamin did not receive any exploratory contributions in September, and therefore
he had none to report, all of which the Secretary of State confirmed in an exchange
of e-mails with the Benjamin campaign. 6
6 On October 1, 2015, Justice Benjamin did in fact attempt to electronically file a
report showing the balance of exploratory contributions received by him prior to
September 11, 2015, when he became a participating candidate. However, the
computer software utilized by the Secretary of State would not allow him to do so.
This is what precipitated the exchange of e-mails, in which employees of the
Secretary confirmed that the exploratory contributions received while Justice
10
The court below acknowledged that Justice Benjamin had not received any
exploratory contributions in September, but concluded that on October 1, 2015, he
was nonetheless required to file after-the-fact monthly exploratory reports for
January through August. In support of this conclusion, the court wrote that applying
W. Va. Code § 3-12-13(b) as written “would undermine the letter and intent of W.
Va. Code § 3-12-8(d).” This conclusion is puzzling, as the latter statute’s
requirement that “a participating or certified candidate” file monthly reports
showing exploratory contributions received “during the prior month” is no different
in practical effect from the former statute’s requirement that “a participating
candidate” file monthly reports showing exploratory contributions received “during
the immediately preceding month.” The court’s conclusion also ignores the plain
language of W. Va. Code § 3-12-13(c)(1), which anticipates precisely the type of
situation that arose in this case and ensures that at the end of the day, there will be a
full and final accounting of all contributions:
(c) No later than two business days after the close of the qualifying
period, a participating candidate or his or her financial agent shall
report to the Secretary of State on appropriate forms a summary of:
(1) All exploratory contributions received and funds expended or
obligated during the exploratory period together with copies of any
receipts not previously submitted for exploratory contributions[.]
(Emphasis supplied)
Benjamin was still a traditional candidate would be reported in the final report and
accounting due on February 2, 2016. See W. Va. Code § 3-12-13(c).
11
In summary, until September 11, 2015, when Justice Benjamin became a
“participating candidate,” neither W. Va. Code § 3-12-3(5), the statutory provision
defining an “exploratory period,” nor W. Va. Code §§ 3-12-8(d) & 3-12-13(b), the
provisions governing monthly exploratory reports, applied to him. The contrary
conclusions of the court below were clearly erroneous. Further, to the extent that
the court below apparently believed, and therefore found sub silentio, that Justice
Benjamin always intended to seek public funding but waited as long as possible
before making it official, there is not one shred of evidence in this voluminous
record to support such a finding and it cannot serve as a basis for the court’s rulings.
The Final Summary Exploratory Financial Report
One of the many documents required to be filed no later than the
second business day after the close of the qualifying period is the Summary
Exploratory Financial Report. W. Va. Code § 3-12-13(c)(1). This report is required
to be filed electronically with the Secretary of State. Id. On February 2, 2016, when
Justice Benjamin attempted to file his final report, as he had been instructed to do by
the Secretary of State, see n. 5, supra, he discovered that the Secretary’s software
contained yet another “glitch” that would not allow the report to be filed.
Accordingly, the Benjamin campaign sought and was granted a hardship exemption
allowing it to file the final report in paper form on or before February 10, 2016. In
granting the exemption, the Commission specifically found that Justice Benjamin
was unable to file his report on February 2, 2016, for reasons beyond his control.
12
The circuit court’s subsequent conclusion that Justice Benjamin was not
entitled to a hardship exemption is both factually insupportable and legally
erroneous. First, the Commission’s determination that Justice Benjamin’s inability
to file was out of his control was supported by substantial evidence in the record,
including testimonial statements by Secretary of State employees confirming the
State’s technical problems with its software. Under this Court’s precedents, the
Commission’s determination was therefore binding on appeal. “Neither this Court
nor the circuit court may supplant a factual finding of the Commission merely by
identifying an alternative conclusion that could be supported by substantial
evidence.” In re Queen, 196 W. Va. 442, 446, 473 S.E.2d 483, 487 (1996) (emphasis
supplied); see also Webb v. W. Va. Bd. of Med., 212 W. Va. 149, 569 S.E.2d 225 (2002).
The court below exceeded the permissible scope of review in ignoring the
Commission’s factual finding and concluding that Justice Benjamin’s failure to timely
file his final report was his own fault – a finding that could not stand even if the
court were otherwise entitled to make it.7
7 The court took the view that because the Secretary’s software wouldn’t accept a
monthly exploratory report from Justice Benjamin, he should have anticipated that
it wouldn’t take a final exploratory report either. There are several problems with
this analysis. First, the monthly report and the final report are two entirely separate
documents, and problems with one do not constitute notice that there will be
problems with the other. Second, the exchange of e-mails between the Benjamin
campaign and the Secretary’s employees specifically assured Justice Benjamin that
the problems with his monthly report would be resolved with the filing of his final
report. Third, we do not think it is incumbent upon a candidate to solve the
Secretary of State’s technical issues; to the extent that anyone was on notice that the
Secretary’s software was inadequate and needed to be fixed, it was the Secretary
herself.
13
Second, the court erred in concluding that pursuant to W. Va. Code §§ 3-12-
8(d) & 3-12-13(c)(1), the Commission had no authority to grant a hardship
exemption as to the timing of a filing, only as to its form. In this regard, we find that
the court’s reasoning is hairsplitting at best and sophistic at worst. Justice Benjamin
could not have discovered the problem with the Secretary’s software until February
2, 2016, when he attempted to electronically file his final exploratory report. For
the Commission to grant an exemption as to form, i.e., an exemption allowing the
Benjamin campaign to prepare a paper filing, without granting an extension of time
for the paper filing to be prepared, would be to render the exemption meaningless.
It is well established that there are “certain circumstances in which an
agency may perform a function that is implied, but not specifically permitted, by
statute…,” and that an agency’s authority includes “’such other powers as are
necessarily or reasonably incident to the powers granted.’” Walker v. W. Va. Ethics
Comm’n, 201 W. Va. 108, 121, 492 S.E.2d 167, 180 (1997), citing Walter v. Ritchie,
156 W. Va. 98, 108, 191 S.E.2d 275, 281 (1972). We believe that the circumstances
presented in this case are such as to require application of this principle. Although
Respondent Walker argues that the circuit court’s interpretation of the law should
be upheld because it does not specifically contradict any language contained in the
statute, this Court has held that “’[i]t is the duty of a court to construe a statute
according to its true intent, and give to it such construction as will uphold the law
and further justice. It is as well the duty of a court to disregard a construction,
though apparently warranted by the literal sense of the words in a statute, when
14
such construction would lead to injustice and absurdity.’ Syllabus Point 2, Click v.
Click, 98 W. Va. 419, 127 S.E. 194 (1925).” Syl. Pt. 2, Chevy Chase Bank v. McCamant,
204 W. Va. 295, 512 S.E2d 217 (1998).
Accordingly, we hold that under the “West Virginia Supreme Court of
Appeals Public Campaign Financing Program,” W. Va. Code § 3-12-1 et seq. (2014),
where a candidate is required to file a report electronically and is unable to do so for
reasons beyond his or her control, the West Virginia State Election Commission has
discretion to grant a hardship exemption to the candidate as to the form of the
report and to extend the deadline for filing of the report in its revised form.
Qualifying Contributions
Pursuant to W. Va. Code § 3-12-10(g) and W. Va. Code of State Rules § 146-5-
7.1, “[a]ny person may challenge the validity of any contribution listed by a
participating candidate by filing a written challenge with the State Election
Commission setting forth any reason why the contribution should not be accepted
as a qualifying contribution.” Respondent Walker took full advantage of these
provisions, filing challenges to the vast majority of Justice Benjamin’s contributions,
more than 500 challenges in all, on a variety of grounds including: receipts not on
forms specifically provided for the purpose; receipts missing certain information;
contributors weren’t registered voters; and paper receipts for electronic
contributions did not contain the contributors’ signatures.
15
At its first hearing held on February 3, 2016, the Commission spent
seven hours going through the first group of 163 challenges one by one, upholding
some challenges and denying others. Seven of the challenges involved electronic
contributions, most made through PayPal, and the Commissioners struggled to
determine whether the identifying account numbers on the computerized receipts
could be deemed to be “signatures” within the meaning of W. Va. Code § 3-12-
9(b)(2), which requires, inter alia, that “(b) Each qualifying contribution shall be
acknowledged by a written receipt that includes: * * * (2) For qualifying
contributions of $25 or more, the contributor’s signature….” Ultimately, the
Commissioners sustained Respondent Walker’s challenges to six of the seven
electronic contributions.
At its next hearing held the following day, the Commission reversed
its earlier decisions with respect to six of the electronic contributions, based on
additional information submitted by the Benjamin Campaign. It then declined to
consider and rule upon 365 additional challenges filed by Respondent Walker,
including approximately 185 challenges to electronic contributions, finding that
Walker had failed to carry her burden of persuasion by failing to present any
evidence in support of the additional challenges.
The parties devote many pages of their briefs to the issue of whether
Respondent Walker waived her right to raise the issue of electronic contributions on
appeal, by failing to provide support for her challenges in the proceedings before the
16
Commission. The facts underlying the waiver argument are unique and
considerations of equity are at play in this case. The Commission correctly found
that W. Va. Code of State Rules § 146-5-7.3 requires “[t]he challenger [to] attach any
relevant evidence, affidavits, or notarized statements to the [challenge] form…,” and
that Respondent Walker had not done so. The problem in this case is that the
Commission had not enforced or even mentioned this rule on the first day of
proceedings; the Secretary of State had taken it upon herself to gather all of the
documentation relevant to the initial group of challenges and bring it to the hearing,
and the Commission dutifully considered 163 challenges despite the fact that the
Secretary, not Respondent Walker, had provided the evidence. It wasn’t until the
end of that first day, when everyone realized that there were 365 more challenges
still to come, that the Secretary abruptly decided ‘this isn’t my job.’ Respondent
Walker’s representative was specifically told that he would have to bring any
relevant documentation to the hearing the next day, and it is undisputed that he did
not do so and did not proffer any explanation. Accordingly, since the Secretary
hadn’t brought any documentation either, the Commission declined to consider the
second-day challenges because it had nothing to look at.
Although this Court believes that the Commission was correct in
concluding that W. Va. Code of State Rules § 146-5-7.3 required Respondent Walker,
not the Secretary of State, to provide any documentation required to evaluate the
challenges, we also believe it was unfair for the Secretary to undertake the
responsibility at the outset and then abruptly shift course at the end of the first full
17
day of proceedings. The Secretary’s actions were particularly unfair in light of the
extremely short time frames set forth in § 146-5-7.3, which in this case required
Respondent Walker’s challenges to be filed on the same day that Justice Benjamin’s
final report was filed, and argued the following day.
Accordingly, we find that on administrative appeal, the court below was
within its discretion to address the electronic contribution issue on the merits,
notwithstanding Respondent Walker’s failure to make a proper record that would
have allowed the Commission to make a ruling in the first instance. Syl. Pt. 2,
Muscatell, supra. We turn now to the substantive issue.
We note at the outset of our discussion that when the dust had cleared
in the proceedings before the Commission, the Commissioners found that Justice
Benjamin had “obtained the required number, which is five hundred minimum, and
amount, which is thirty-five thousand dollars minimum, of qualifying
contributions….” W. Va. Code ∞ 3-12-9(a) & (d), W. Va. Code of State Rules § 146-5-
5.1-5.3. The only issue Respondent Walker raised on appeal with respect to
qualifying contributions involved Justice Benjamin’s electronic contributions,
specifically, whether electronic receipts are “signatures” under W. Va. Code § 3-12-
9(b)(2). This issue is dispositive of the case, since absent the 192 electronic
contributions, Justice Benjamin would not have the requisite 500 qualifying
contributions which he was statutorily required to obtain pursuant to W. Va. Code §
3-12-9(a) before the end of the qualifying period.
18
The court below concluded that electronic signatures were not
sufficient under the Act because, in the court’s words, “handwritten signatures are
needed to investigate and verify credibility of the donor….” The court cited no
authority for this proposition, and indeed there is none. Nothing in the Act imposes
a duty on anyone to “investigate and verify credibility” of contributors by using the
signatures on their voters registration cards as exemplars and then comparing the
signatures on their contribution receipts. Further, such an analysis is a practical
impossibility; under the Act and the rules, the time frames for challenges are not
sufficient for anyone to perform close to 200 handwriting analyses, and none of the
Commissioners has the competence to perform it in any event, none being
handwriting experts. As Respondent Commissioner Collias stated when this issue
arose on the first day of hearings:
Well, he [a contributor] could have registered to vote thirty, forty
years ago when he was eighteen, so that signature could be thirty
or forty years old on the one, and the other it was a few months
ago. I mean we don’t have the competency to be declaring that the
signatures are from different people. They may look different, but
maybe the person signs different things differently. I mean, I don’t
know, but I’m not willing to go there.
Finally, and critically, the court below failed to consider that its decision
invalidating electronic signatures also invalidated, as a practical matter, W. Va. Code
§ 3-12-3(13), which provides that a “’[q]ualifying contribution’ means a
contribution received from a West Virginia registered voter … in the form of cash,
check or money order … or in the form of an electronic payment or debit or credit
card payment….” (Emphasis supplied).
19
We need not resolve the issue on these grounds, however, because the
court below plainly erred in ignoring the effect of the “Uniform Electronic
Transactions Act” [“the UETA”], W. Va. Code § 39A-1-1 et seq. (2002), on this case.
Forty-seven states have adopted the UETA,8 which establishes that in all situations
not specifically exempted, such as some transactions under the Uniform Commercial
Code and the “creation and execution of wills, codicils or testamentary trusts…,” W.
8 Ala. Code §§ 8-1A-1 to -20 (LexisNexis Supp. 2002); Alaska Stat. §§ 09.80.010- .195
(2008); Ariz. Rev. Stat. Ann. §§ 44-7001 to -7051 (2003 & Supp. 2009); Ark. Code
Ann. §§ 25-32-101 to -121 (2002 & Supp. 2001); West’s Ann. Cal. Civ. Code §§
1633.1-.17 (West Supp. 2010); Colo. Rev. Stat. Ann. §§ 24-71.3-101 to -121 (Wet
2008 & Supp. 2009); Conn. Gen. Stat. Ann. §§ 1-266 to 286 (Wet 2007 & Supp.
2009); Del. Code Ann. Tit. 6, §§ 12A-101 to -117 (2005 & Supp. 2008); Fla. Stat. Ann.
§§ 668.50 (West 2004 & Supp. 2010); Haw. Rev. Stat. §§ 489E-1 to -19 (LexisNexis
2009); Idaho Code Ann. §§ 28-50-101 to -120 (2005); Ind. Code Ann. §§ 26-2-8101to -302 (LexisNexis 2005 & Supp. 2009); Iowa Code Ann. §§ 554D.101 - .124 (West
2001 & Supp. 2010); Kan. Stat. Ann. §§ 16-1601 to -1620 (2000); Ky. Rev. Stat. Ann.
§§ 369.101 - .120 (West 2006 & Supp. 2009); La. Rev. Stat. Ann. §§ 9:2601 to -2620
(2005 & Supp. 2010); Me. Rev. Stat. Ann. Tit. 10, §§ 9401 to -9507 (2009); Md. Code
Ann., Com. Law §§ 21-101 to -120 (LexisNexis 2005 & Supp. 2009); Minn. Stat. Ann.
§§ 325L.01 - .19 (West 2000); Mass. Ann. Laws ch. 110G §§ 1-18 (LexisNexis 2005 &
Supp. 2009); Mich. Comp. Laws Ann. §§ 450.831 - .849 (West 2002 & Supp. 2009);
Miss. Code Ann. §§ 75-12-1 to -39 (West 2004 & Supp. 2009); Mo. Ann Stat. §§
432.200 - .295 (West Supp. 2010); Mont. Code Ann. §§ 30-18-101 to -118 ((2008);
Neb. Rev. Stat. Ann. §§ 86-612 to -643 (LexisNexis 2007); Nev. Rev. Stat. §§ 719.010-.350 (2009); N.H. Rev. Stat. Ann. §§ 294-E:1-20 (Supp. 2009); N.J. Stat. Ann. §§
12A:12.1 to -26 (West 2004 & Supp. 2009); N.M. Stat. §§ 14-16-1 to 19 (2003 &
Supp. 2009); N.C. Gen. Stat. §§ 66-311 to -339 (2009); N.D. Cent. Code §§ 9-16-01 to
-18 (2006 & Supp. 2009); Ohio Rev. Code Ann. §§ 1306.1-.23 (LexisNexis 2009);
Okla Stat. Ann. Tit. 12, §§ 15-101 to -121 West 2001 & Supp. 2010); Or. Rev. Stat.
Ann. §§ 84.001-.061 (West 2003 & Supp. 2009); 73 Pa. Cons. Stat. §§ 2260.101-.903
(West 2008 & Supp. 2009); R.I. Gen. Laws §§ 42-127.1-1 to -20 (2006); S.C. Code
Ann. §§ 26-6-10 to -210 (2007); S.D. Codified Laws §§ 53-12-1 to -50 (2004 & Supp.
2009); Tenn. Code Ann. §§ 47-10-101 to -123 (2001 & Supp. 2009); Tex. Bus. & Co.
Code Ann. §§ 322.001-.021 (Vernon 2009); Utah Code Ann. §§ 46-4-101 to -503
West 2004 & Supp. 2009); Vt. Stat. Ann. tit. 9 §§ 270-290 (2006); Va. Code Ann. §§
59.1-479 to -497 (2006 & Supp. 2009); W. Va. Code §§ 39A-1-1 to -17 (LexisNexis
2004 & Supp. 2009); Wis. Stat. Ann. §§ 137-11-.26 (West 2009); Wyo. Stat. Ann. §§
40-21-101 to -119 (2009).
20
Va. Code § 39A-1-3(b)(1) & (2), electronic and non-electronic records are equal.
The language of the UETA is clear and unambiguous: W. Va. Code § 39A-1-7(d)
provides that “[i]f a law requires a signature, an electronic signature satisfies the
law.” In turn, an electronic signature is defined under the Act as “an electronic
sound, symbol or process attached to or logically associated with a record and
executed or adopted by a person with the intent to sign the record.” W. Va. Code §
39A-1-2(8). The Act unequivocally instructs that “[i]n a proceeding, evidence of a
record or signature may not be excluded solely because it is in electronic form.” W.
Va. Code § 39A-1-13.
Not surprisingly, most of the case law which has developed under the
UETA deals with its application to contract disputes and commercial transactions.
E.g., Shroyer v. New Cingular Wireless Services, Inc., 2007 U.S. App. LEXIS 1950 (9th
Cir. 2007) (electronic signature can be created over the phone using an IVR
process); Johnson v. Astrue, 2009 U.S. Dist. LEXIS 130558 (E.D. Cal., June 18, 2009)
(physician’s digital signature satisfied Social Security regulation which required that
“[a]ll consultative examination reports will be personally reviewed and signed by
the medical source who actually performed the examination”); Alliance Laundry
Systems, LLC v. Thyssenkrupp Materials, NA, 570 F. Supp.2d 1061 (E.D. Wisc. Aug. 5,
2008) (electronic signature could satisfy the UCC’s statute of frauds signature
requirement for the sale of goods priced at $500.00 or more); Stevens v. Publicis, S.A.,
50 A.D.3d 253 (N.Y. App. Div. 2008), leave to appeal dismissed, 892 N.E.2d 399(2008) (series of e-mails between contracting parties, with the parties’ names typed
21
therein, satisfied the requirements of an enforceable “no oral modifications” clause
in contract); Barwick v. Government Employee Insurance Co., Inc., 2011 Ark. 128(Supreme Court of Arkansas 2011) (insured’s electronic signature on computer
application qualifies as a written rejection of benefits); Kluver v. PPL Montana, LLC,
368 Mont. 101, 293 P.3d 817 (2012) (UETA applied to memorandum of
understanding between landowners and electric power companies). The disputes
in these cases are generally evidentiary in nature, i.e., whether the electronic
signature is actually attributable to a certain individual, or whether an individual
intended to be bound by his or her electronic signature.
We have located only two cases in which the courts considered
electronic signatures in the context of election-related laws. In Anderson v. Bell,
2010 Utah 47, 234 P.3d 1147 (2010), Mr. Anderson had submitted a petition
seeking to be placed on the ballot as an unaffiliated candidate in the upcoming Utah
gubernatorial race. Utah law required that an unaffiliated candidate collect the
signatures of 1,000 registered voters before his or her name could be placed on the
statewide ballot. Mr. Anderson’s petition contained two types of signatures:
handwritten signatures, and electronic signatures entered through a computer
website. The petition was rejected by the Office of the Lieutenant Governor of Utah
on the ground that the electronic signatures did not constitute “signatures” as
required under the Utah Election Code.
22
The Utah Supreme Court reversed, holding that electronic signatures
met the requirements of the Utah Election Code. Construing a provision identical to
W. Va. Code § 39A-1-7(d), “[i]f a law requires a signature, an electronic signature
satisfies the law…,” the Court held:
This language could not be more straight forward … Mr. Anderson
has thus done exactly what section 46-4-201 permits. He used
electronic signatures to satisfy the Election Code’s demand that
unaffiliated candidates collect and submit the signatures of 1,000
registered voters in order to get his name onto the statewide ballot.
Anderson, 234 P.3d at 1153.
Anderson was overridden by the Utah Legislature the following year, by
amendment to the Election Code specifically exempting the “signature” requirement
for petitions submitted by independent candidates seeking to be placed on the
ballot from the ambit of Utah’s UETA.
In Ni v. Slocum, 196 Cal. App.4th 1636 (Cal. App. 1st Dist. 2011), a
number of registered voters had signed petitions seeking to put a Proposition (for
legalization of marijuana) on the ballot. Some of the signatures were electronic, and
the issue before the court was whether the California Election Code’s requirement
that a voter “personally affix” his or her signature was satisfied by electronic
signature. The court held that the Election Code required a “wet signature,” not an
electronic signature, for the following reasons:
1. The law governing Propositions requires that every voter’s signature on
a petition be witnessed and thereafter certified by a “circulator,” a requirement that
23
could not be met where voters utilized their phones, tablets and computers to sign
the petition online;
2. In fact, allowing electronic signatures on a petition would completely
eliminate the function of the “circulator,” thus substantively changing the law;
3. The law requires election officials to verify the residence of every voter
signing a petition, which would be impossible where the voter signed the petition
electronically since electronic receipts contain identifying information but not a
residential address;
4. The law requires more than a voter’s signature; it requires that the voter
“personally affix” that signature, words that have no meaning or application unless
the voter has a pen in his or her hand; and
5. The law specifically states that its provisions are mandatory
“notwithstanding any other provision of law…,” which means that the law governing
Propositions, not the Uniform Electronic Transaction Act, controls.
Although we agree with much of the reasoning of the Ni court, we find that
the case is wholly inapposite to the case at bar. West Virginia Code § 3-12-1 et seq.
contains no requirement that signatures be witnessed and certified by anyone, let
alone a “circulator” whose specific duties are set forth in the law. Our law requires
only the signature of a contributing voter, not that the voter “personally affix” that
signature. Nothing in the law requires the Election Commission to verify every
24
contributor’s residence, in the absence of a challenge;9 and indeed, as set forth at pp.
__, supra, the law does not give the Commissioners enough time to undertake such a
task even if they were inclined to do so. There is no language in § 3-12-1 et seq. that
would make its provisions mandatory “notwithstanding any other provision of law,”
specifically, the Uniform Electronic Transactions Act.
Finally, and fundamentally, the West Virginia Supreme Court Public
Financing Program, W. Va. Code § 3-12-1 et seq., specifically seeks “to encourage
participation in the program….,” Wooton v. Walker, et al., No. 16-0226 (W. Va. filed
April 19, 2016), Slip Opinion at 12 (emphasis supplied); and consistent therewith,
the Act permits contributions to be made electronically, W. Va. Code § 3-12-3(13).
For this Court to effectively read the latter provision out of the Act by finding that an
electronic signature is not a signature under W. Va. Code § 3-12-9(b)(2) would
discourage many participating contributions. Absent specific statutory language or
compelling policy reasons, we decline to engage in such a crabbed reading of § 3-12-
9(b)(2).
In this case, as in Anderson, the statutory provisions at issue could not be
more straightforward.10 Additionally, in this case all considerations of policy
9 In the event of a challenge, the challenger, not the Commission or the Secretary of
State, is required to put forth evidence that the address shown on a receipt does not
match the contributor’s address in the election rolls. At that point, the
Commission’s duty would be to rule on the challenge.
10 The fact that Anderson was subsequently overridden by new legislation does not
indicate that the court’s reasoning was flawed. The Utah Legislature, apparently
intending to make it more difficult for non-affiliated candidates to appear on the
25
militate in favor of application of UETA to the issue at hand. Finally, in this case
there are no evidentiary issues of intent or authenticity; indeed, it is undisputed in
the record that the electronic contribution receipts submitted by Justice Benjamin
contain unique transaction identifiers allowing the contributors to be identified.11
Accordingly, we hold that under the “West Virginia Supreme Court of Appeals Public
Campaign Financing Program,” W. Va. Code § 3-12-1 et seq. (2014), where a
qualifying contribution is made to a candidate in the form of an electronic payment,
as authorized by W. Va. Code § 3-12-3(13), an electronic receipt containing a unique
transaction identifier is a sufficient “signature” of the contributor within the
meaning of W. Va. Code § 3-12-9(b)(2),
In this case, Justice Benjamin submitted documentation evidencing 192
electronic qualifying contributions made to his campaign, such documentation
containing unique transaction identifiers tracing back to the respective contributors
and satisfying the definition of an electronic signature contained in W. Va. Code
§39A-1-2(8). Thus, the Commission correctly concluded that the Benjamin
campaign had obtained the requisite number of qualifying contributions and
otherwise satisfied all statutory requirements to be certified for public funding
under the Act.
ballot, amended the Election Code to specifically exempt election laws from the
ambit of the UETA.
11 When Respondent Walker raised the “signature” issue, Justice Benjamin’s
campaign contacted a number of contributors and asked them to supplement their
electronic receipts with paper receipts containing pen-and-ink signatures. In the
limited time available, a number of contributors did so.
26
IV. CONCLUSION
For the foregoing reasons, the judgment of the Circuit Court of Kanawha
County is hereby REVERSED, and the decision of the West Virginia State Election
Commission is hereby reinstated in its entirety.
Reversed.
27