Rogers v. Hechler

713 language (1986), of W.Va.Code City 48A-4-9 Coghill, Charleston v. 156 W.Va. governs judicial which 877, of a review fami- (1973); Farley 207 S.E.2d 113 v. Gra ly order, law final master’s to authorize a 22, ney, (1960). 146 W.Va. 119 S.E.2d 833 de thereby novo the sepa- review avoid ration powers obstacle. this Under sec-

tion, express court pow- circuit has the

er to “determine the appropriateness of the

terms of the master’s final order” and

could reverse recommendation of the

family appropriate law master enter an order based on law and the evidence 348 S.E.2d 299 developed. previously H. John ROGERS Court, Like Supreme the Delaware I v. interpret would the statutory provisions re lating to the master’s “final orders” so HECHLER, State; Ken they would be immediately enforceable. Bean, Ralph Jr., Chairman, J. The family authority law master’s would be Commission; Election Allen S. Ham- existing much system like the for divorce mock, Ruley, Barbara M. and Patrick W.Va.Code, commissioners. Under 48-2- McDonald, Members, State Election 25, the circuit court receives and must con Commission. findings sider the of fact and recommenda No. 16884. tions of the passing commissioner in on the merits of issue on court has Supreme Court Appeals requested a recog recommendation. We Virginia. of West Currence, nized in Currence 9, July 1986. 599, 607, (1941), 18 S.E.2d that a circuit judge court could not under the stat delegate judicial

ute authority his

commissioner make the actual decision case,

in the emphatically stated: “Such delegation his duty to determine the

case, no court could make.” also See Bor Corrections, delon Dept. v. Louisiana (La.1981); Biel,

398 So.2d 1103 Biel

Wis.2d 336 N.W.2d 404

Despite majority’s pious pro- rather

nouncement that is not the function of “[i]t legisla-

this Court ... redraft acts of

ture,” grips it has failed to come with a simple interpreting

rather task of the cir-

cuit legislation. court’s role Not has it failed cite fore-

going authority, ignored it has relevant but statutory

our established rule of construc- Syllabus

tion found in 3 of Point Under- Typewriter Piggott,

wood Co. v. 60 W.Va. (1906): 55 S.E. 664 an act “Whenever can be so construed and

applied as to avoid a constitu- conflict with provision, give

tional it the force of

law, adopted.” such construction will be v. Rutledge,

See also Thomas 167 W.Va. (1981); 280 S.E.2d 123 State ex rel. Rogers, Martinsville,

H. John New appellant. Brown, Atty.

Atty. Gen. Charlie Asst. Hoover, Charleston, Gen. K. Marianne appellee.

McGRAW, Justice: action, petitioner in this The mandamus citizen, Rogers, taxpayer, H. John and vot- er, compel state seeks to election officials promulgate regulations gov- rules and erning expenditures. re- The Hechler, spondents Ken Bean, Jr., State; Ralph J. Chairman Commission; and, S. State Election Allan Matheny County rel. State ex Syl. pt. Hammock, and Patrick Ruley, M. Barbara Court, (1900); S.E. 959 McDonald, Election 47 W.Va. the State members of Parkersburg, Syl. pt. Spilman City Following discussion Commission. brief mandamus, will 14 S.E. 279 More- we 35 W.Va. appropriateness over, consistently recognized presented. this Court address the issues substantive “special public insuring concern with mandamus A threshold issue regularity and that “citi- of elections” ve appropriate action is it is an whether zens, taxpayers and voters have sufficient general sought. hicle the relief bring actions in interest in such matters will not “A of mandamus rule writ compel election officials to mandamus (1) a issue unless three elements coexist — discharge prop- their duties in lawful legal right petitioner in the clear Alsop ex rel. v. State er manner.” legal duty (2) on the sought; relief a clear 829, 7, McCartney, 159 W.Va. 838 n. 228 thing the which part respondent to do also 278, (1976); see White 283 n. 7 S.E.2d (3) compel; the petitioner seeks Manchin, 526, 470, v. 173 W.Va. 318 S.E.2d adequate remedy.” absence of another 1, rel. (1984); Syl. pt. State ex Booth v. 477 City v. ex rel. Kucera Syl. 2, State pt. Commissioners, Ballot Board of 156 538, Wheeling, 153 170 S.E.2d 367 W.Va. 657, (1972); pt. 1, Syl. W.Va. 196 S.E.2d 299 rel. Syl., State ex Ruddles (1969); see also Bailey, ex State rel. Baker v. 152 W.Va. Roberts, 161, v. 175 332 S.E.2d den W.Va. (1968); 2, State 400, Syl. pt. 163 873 S.E.2d Gainer, Oakley v. (1985); Syl., 175 122 West, 498, ex rel. v. 145 W.Va. Zickefoose (1985); Allen v. 115, 331 846 W.Va. S.E.2d (1960), overruled on other 116 S.E.2d 398 Commission, 174 W.Va. Rights Human rel. v. 12, grounds, State ex Booth Syl. pt. 99, (1984), 139, 324 105 and cases S.E.2d Commissioners, supra; Board Ballot Hansbarger, 173 therein; Reed v. cited Karnes, 1, ex rel. Pack v. Syl. pt. State 83 616, 258, (1984), 314 619-20 S.E.2d W.Va. 14, (1918), overruled on 302 W.Va. 97 S.E. and cases cited therein. 12, grounds, Syl. pt. ex rel. other State respect petitioner’s With Commissioners, v. Booth Board Ballot standing of election to seek enforcement ex rel. v. supra; State Heironimus Syl., regarding promulgation of rules laws Davis, 587, 76 85 779 Town of W.Va. S.E. regulations governing campaign ex (1915). public special concern This Syllabus in penditures, Court held this process integrity of the electoral is also Barte, 194, Myers v. 3 167 W.Va. Point Virginia reflected in West .§ right (1981), 406 “Where the 279 S.E.2d (1979 Vol.), provides, in Replacement which one, public man sought to be enforced is a pertinent “Any person', officer or part, that citizen, sought by any tax damus can be upon this whom devolved payer or voter.” See also v. West Smith chapter, may compelled perform Education, 170 Virginia State Board of same of mandamus.” writ 593, 680, (1982); Syl. 295 683 W.Va. S.E.2d With, respect to the existence of Moore, ex v. 1, State rel. Brotherton pt. adequate remedy, an this Court alternative 934, (1976); 230 638 W.Va. S.E.2d 159 Point 5 of Hardin v. Fo Syllabus held Blankenship, ex v. State rel. Brotherton 544, gelsong, 117 W.Va. 186 S.E. 308 467, 390, 396, 474 W.Va. 214 S.E.2d 158 (1936), “Mandamus will not be denied on Court, v. (1975); County DeLardas 155 remedy ground that there is another 847, (1972); 776, 779, 186 850 W.Va. S.E.2d remedy equally other conve unless such ex 2, State rel. West Syl. pt. beneficial, also nient, See and effective.” City v. Lodge, Fraternal Order Police Group Virginia Citizens Action v. Charleston, 420, 133 W.Va. 56 S.E.2d 713, Daley, 174 W.Va. 299, 324 S.E.2d 716 DeVan, 3, v. (1949); Prichard Syl. pt. 763 Rights Human (1984); Allen v. Commis 509, 172 pt. (1934); Syl. S.E. 711 114 W.Va. sion, 106, at and cases cited County 2, 329 S.E.2d Mingo ex rel. White v. therein; v. Board Trustees Court, (1920); 517, 103 86 W.Va. S.E. 368 Woodruff Hospital, 173 W.Va. Huntington Wyoming County Cabell 1, Frantz Syl. pt. 372, Court, (1911); 604, The re- 734, 319 S.E.2d 376 69 W.Va. 73 S.E. 328

717 spondents suggest case procedures lation of elections and election Virginia.” provi- the State West The sought by petitioner relief can sions of the West Election Code Legislature. through obtained This governing conduct and administration held, however, repeatedly Court has pursuant elections enacted to West “A peremptory writ will is- mandamus IV, 11, Constitution art. require discharge public sue to provides: non-discretionary Syl. official of a duty.” prescribe 4, Sims, 407, pt. 121 Glover v. 3 W.Va. of conducting making manner re- (1939); S.E.2d 612 see also Allen Hu- elections, turns determining and of Commission, Rights man at W.Va. elections; pass contested and shall 147-148, n. 324 S.E.2d n. at 107-08 laws as proper to therein; Hansbarger, cases Reed v. intimidation, prevent disorder violence at S.E.2d at polls, corruption and fraud in cases cited nondiscretionary therein. Such voting, counting vote, ascertaining or promulgation duties include the of rules result, declaring the fraud man- regulations pursuant legislative upon ner the ballot. See, e.g., mandate. United Mine Workers Rader, In 806, v. Halstead 27 W.Va. 808 Scott, 356, America 173 315 v. W.Va. of S.E.2d (1886), that, Court pro- this observed “This 614, (1984); 621-22 County Ram- of mandatory vision is plenary, and and re- Stevens, 918, sey v. 283 N.W.2d 924-25 quires legislature prescribe the to all rea- (Minn.1979); City, 458 Stine Kansas necessary laws proper sonable deemed 601, S.W.2d (Mo.Ct.App.1970); 609-10 fraud, prevention securing the of the Richmond Funeral Directors’ Ass’n v. purity ascertaining of elections and the re- Groth, 792, 797, 467, 202 Va. 120 S.E.2d mandatory sults.” The of nature of (1961). 471 petitioner’s contention is Legislature the under this constitutional Legislature already spoken, the provision to objectively enact all laws nec- respondents heeding but that the are not essary ensure fair emphat- to elections was Therefore, its call. resort legislative to a Rader, in ically stated Halstead 27 remedy adequate is not an relief avenue of W.Va. at 809: in this action. to content leave the exercise of the [N]ot power legislature inherent in the and not respect With to the ascertainment it, legis- to at denied the direction the legal guide of the duty, existence one lature, commands, the Constitution post that, unquestionably word pass necessary “The prop- it all laws and language prevent purity ‘shall’ in the in the er to fraud and secure the absence of elections and returns. No law which showing contrary statute a on the intent necessary can unreasonable part of legislature, should be afforded and proper, therefore no such law can be 2, mandatory Syl. pt. Ter connotation.” regarded as authorized Constitu- Sencindiver, 651, ry v. 153 171 W.Va. general powers legisla- tion (1969); S.E.2d 480 see also v. Hu Allen laws, all ture. But which are deemed not Commission, at Rights man 174 W.Va. necessary proper pur- but for the 10, 147-148, 10, n. 324 S.E.2d at 108 n. and pose fair and honest elections and therein; cases cited United Mine Workers ascertaining returns, their the Constitu- Scott, 173 W.Va. America v. of S.E.2d at pass. tion commands the and cases cited therein. Although enactment and amendment of mind, With this in consideration we now pursuant election statutes constitu- question. examine in the statutes proved adequate tional mandate almost (1979 West Code Re- eighty years, Legislature, Vol.) that, placement chap- “This complex increasingly faced an may ter and shall constitute be cited as the system, part compue- and of a electoral as ‘West Election Code’ and contem- Law,” Registration hensive “Permanent plates comprehends a code of State, laws empowered Secretary for the establishment, regu- time, “make, administration and first amend rescind corruption rules, proper prevent regulations and orders ... Currently, voting....” fraud in this is necessary policy carry out the through the of broad achieved enactment Legislature, in this article.” as contained policies in a skeletal legislative embodied 43, 13. Assistance Acts ch. legislative statutory scheme. These broad performance of these new obli- in the insufficient, however, policies are to meet gations Secretary State with re- Legisla- the constitutional demand that the spect reg- of rules and promulgation to the pass all laws as ture legislatively to vindicate ulations needed prevent corruption proper to and fraud provided was prescribed policies electoral sys- Recognizing elections. that a detailed “The through the State Election creation regulation is essential if its tem broad Commission,” was authorized to policies any appreciable have im- were to policies practices “recommend pact upon the conduct administration state, his secretary relating duties as elections, Legislature charged (for voting) registration and elec- official Secretary filling of State with in the inter- officer, imposed by tion law” and to “con- statutory stices of the framework. Man- practices study the election sider and minimum, dating at a the rules and to determin- jurisdictions, other with view regulations promulgated by ing techniques eliminating used “necessary those stan- of State include elec- simplifying in elections and fraud effective administra- dardize and make ch. procedure.” Acts tion 1941 W.Va. provisions chapter,” of this 12(1) struc- This administrative §§ (1979 Re- 3-1A-6 promulgation of election rules ture for the Vol.), placement Legislature was shift- despite regulations has been retained part its the ing constitutional burden to subsequent Virgi- to the West amendment important Secretary of State. This adds an nia Election Code. Secretary of dimension to the constitutional (1979 3-1A-6 Re- West mandatory duty promulgate State’s to Vol.) that, currently provides placement regulations necessary to rules and effectu- secretary “The shall be the chief state policies legislative regarding the ate broad He election official of the State. shall have process. electoral authority, with the state after consultation prescribed legislatively of the One oldest commission, which he a mem- election is policies in this State is the strict electoral ber, make, amend and rescind such to permissible expend- regulation rules, regulations orders as ninety-eight years ago, the Over itures. necessary carry policy of the to out Legislature prohibiting law enacted a chapter.” legislature, in this as contained solicitation, accept- promise, payment, or respondents suggest, as Clearly, money, any employment ance of or other language provision permissive of this consideration in order to induce a valuable mandatory. West and not vote, vote, to not to vote for a voter (1979 Vol.) Replacement further 3-1A-6 § candidate, particular not a or to vote for however, that, provides, “It shall be the particular candidate. 1908 W.Va. Act Ex. all election ... abide officials 22, Sess. ch. 1. Violation of this law was § rules, orders, regulations and punishable by “im- deemed misdemeanor rules, regula- Any shall include ... ... prisonment county jail for a term necessary tions or directions to standardize six or one not less than months more than and make effective administration of court, year, at the discretion of and [a] provisions chapter.” [Emphasis of this more not than one thousand fine[] [of] Clearly, petitioner sug- as added]. 22, Acts dollars.” 1908W.Va. Ex. Sess. ch. provision gests, language of this however, legislation, A proviso 1. to this § mandatory permissive. and not apply it stated that was intended IV, expenses.” “proper Constitution art. certain 22, “The ... Acts Ex. Sess. ch. 1. The definition mandates § expenses” pass necessary “proper of what constituted was shall such laws law, paign strictly “only” expenditure limited to include the follow- both occurred in ing 1915, items: only years pas- seven after its initial First, sage. beginning 1915, traveling improper personal

First. For the ex- penses campaign expenditure became a per candidate. se vio- lation of the election law. The statute was Second. For the reasonable rent of hall provide that, candidate, amended to “No delivery or for of speeches room the rela- agent or treasurer of a principles tive to in any candidates committee, lend, pending pay, give agree or or election. pay, give lend, directly either or indi- For payment Third. of reasonable rectly, money thing or other of value compensations public speakers for expenses, except for [cer- public meetings musicians at and their specifically tain purposes].” enumerated expenses. traveling 1915 W.Va. Acts. ch. 10. The motive Printing and Fourth. distribution expenditure longer was no relevant. tickets, or sample lists of candidates Second, beginning amounts speeches or by pamphlets, addresses “proper fairly reasonable commen- newspapers or circulars relative candi- surate with the services rendered” could be or political dates principles, issues or types incurred and reimbursed those cards, handbills, posters or announce- campaign expenses specifically enumerat- ments. ed. 1915 W.Va. Acts ch. 10. Obvi- copying For and classifying poll Fifth. ously, amount, payment of an unreasonable lists. such as ten times the normal rate for a For making Sixth. canvasses of voters. room at hotel in- which to hold a expressage freight Seventh. For rally, guise used purchase could be as a charge for purposes, other like and for innkeeper’s vote. postage, telegraph, telephone, or other Following significant changes public messenger service. campaign expenditure law has Eighth. For reasonable clerk hire at the relatively past remained stable over the headquarters or offices of campaign com- seventy-one years. mittees, or at office of the candi- (Supp.1985), currently provides, 3-8-9 dates. pertinent part, that: 1908 W.Va. Acts Ex. Sess. ch. 1.§ (a) candidate, agent, No or Any campaign expenditure, other such as political committee, of a party treasurer transporting for voters to and from the lend, give pay, directly or either or was, polls, definition, by legislative improp- any indirectly, money thing or other er, and if made in to order induce a voter to any expenses, except value for vote, vote, to not vote particular for a following purposes: for the candidate, or not vote particular for a candidate, (1) rent, would For furnish- be a violation of the cam- maintenance and paign expenditure ing of punishable political law and offices to be used as head- as a quarters payment misdemeanor. and for the of neces- clerks, sary stenographers, typists, jani- years, significant Over several messengers actually employed tors and campaign expenditure amendments to the therein; law been have made. Some items defined (2) In case of a candidate who does permissible campaign expenditures have headquarters, maintain for reason- dropped been and others have been added. expenses able office for payment and example, Legislature For add- necessary clerks, stenographers and ed, conveying “For infirm or disabled vot- typists, actually employed; and, polls,” ers to and from the added, Legislature conducting (3) public “For printing distributing For and opinion poll polls,” permissi- books, or to the list of pamphlets, circulars other and campaign expenditures. ble printed two The most matter and radio and television important changes, however, broadcasting painting, printing cam- and group or any or of candidates other adver- candidate

posting signs, banners relating approval any proposition issues tisements, or defeat all candidates; other matter to voted on or election; any public at decorating (4) halls renting For meetings and conven- public (11)For advertising legitimate agency advertising meetings, tions, public commissions, services, including in con- traveling payment of ex- and for the any activity nection penses speakers and musicians payment authorized subdivi- which meetings; four, five, three, six, seven, nine sions (5) traveling and ho- For the subsection. and ten candidates, political expenses tel (b) pay- Every liability incurred and committees, agents and for station- made at a rate and for a ment shall be ery, telegrams, telephone, ex- postage, proper and reason- total amount which is public messenger press, freight and ser- fairly commensurate with the able and vice; services rendered. (6) circulating and fil- preparing, For provision penalty for violation of this ing petitions for nomination of candi- found in West dates; Vol.), (1979 Replacement (7) examining reg- For lists that: voters, thereof, copies securing istered person any who act Any shall commit investigating right to vote by any provision made an offense of this therein, conducting person pro- listed chapter, penalty or punish- for which no ceedings prevent registration unlawful any provision prescribed by ment is other voting; or therein, person contained or who (8) conveying For voters and from any duty prescribed perform shall fail to polls; therein, any person or who shall fail to (9) publication newspa- securing For prescribed perform any duty therein pers and television broad- radio specifically which has not been made an documents, articles, speeches, casting of offense, guilty of a shall be misdemean- relating arguments information or, thereof, and, upon conviction shall be issue, candidate, ques- any political one dol- fined not more than thousand vote; proposition, submitted to a lars, court, or, in the discretion of (10) conducting public opinion poll For in jail confined for not more than one section, polls. purpose of this For the year. “conducting public opinion phrase aspects campaign Two ex- current poll polls” or shall mean and be limited to law, initially penditure which were enacted collation, collection, gathering, noteworthy. First, particularly reflecting pub- evaluation of information Virginia 3- it is violation of West lic to opinion, preferences needs and 8-9(a) candidate, any (Supp.1985)for finan- candidate, candidates, any group par- agent, political party or treasurer of a cial ty, poll No shall issue or issues. such lend, give, pay, to or either di- committee intentionally or deceptively designed con- rectly indirectly, any money other or or to ducted in a manner calculated advo- thing any expenses, for election value any cate the election or defeat candi- any specifical- purpose for other than those group date or of candidates or calculated Second, therein. it is a vio- ly enumerated any person persons influence or so 3-8-9(b) Virginia lation West Code § polled against any or vote for candi- candidate, (Supp.1985) any for financial date, candidates, group proposition or agent, party of a com- or treasurer by pub- other manner be voted on lend, pay, give, or mittee to or to incur Provided, any lic at election: that noth- lend, liability pay, give, directly either or ing prevent shall of the herein use indirectly, any money thing or any poll polls to or other results of such or fur- ther, any expenses, promote or enhance the election unless “at election value for expenditures a rate and for a total amount which is of ... all and disbursements fairly proper candidate, commen- by [every] reasonable and made ... with rendered.” agent, person,

surate the services organization association or committee, political purposes” or for self-regulation Legislative upon reliance maintained, “[e]very person and that ... for efficacious enforcement cam- required to keep detailed accounts ... file expenditure paign law would have dis- a detailed ... itemized statement ... ac- Thus, played political naivete. considerable cording [specified] provisions passage with initial concurrent cam- respect expenditure times.” With paign expenditure Legisla- law statements, content of such financial West campaign expenditure ture enacted several 3-8-5a(h) Virginia (Supp.1985) Code pro- § requirements. reporting See 1908 W.Va. vides, “Each financial statement ... shall Ex. Sess. ch. 7-15. For Acts exam- §§ name, initial, show ... The first middle if ple, provided section seven of the 1908 Act name, any, and the last residence and mail- that, “Every person who shall be a candi- ing individual, address the case of an or any primary date ... election ... shall mailing the full name and address of each thirty days within after the election ... firm, association or committee to whom and file make out ... a statement in writ- expenditure each liability was made or in- setting ing forth in all ... detail sums of curred, together pur- with amount and contributed, disbursed, money expended or pose expenditure of each liability or in- promised showing when, ... and the dates curred and the of each date transaction.” persons whom, purpose and the and the paid, for all such expend- sums were The Secretary of is intimately in- ed, promised.” years, legisla- or Over the volved in the administration and enforce- expenditure campaign tive refinement of ment of our financial disclosure (cid:127) requirements reporting place. (1979 taken laws. West Code 3-8-5b reporting requirements, Replacement Vol.), The thrust of such example, provides however, that, relatively has remained constant. “The sworn pro- financial statements for in vided sections five and five-a 3- [§§ (1979 West Re- 8-5 shall be filed with the 3-8-5a] Vol.) placement currently provides that: secretary by of state candidates for state Except party candidates com- and other offices to be nominated or elect- committeewomen, pri- mitteemen and ed voters of a subdivision elections, mary and other all candidates greater county_” impor- than a More persons for nomination or and all however, tantly, Code 3-8- organizations advocating kind (1979 Vol.) Replacement nomination, opposing election or de- “Blank forms for all financial statements issue, thing feat of or item to be required under article pre- shall be upon, keep receipts voted shall records of state, pared secretary copies expenditures po- which are made for thereof, together article, a copy of this purposes. receipts All litical through shall be the county furnished clerk subject expenditures regula- otherwise, secretary as the state provisions of this article. expedient, politi- deem to all treasurers of Verified financial of statements such committees, cal all financial expenditures shall records and be made agents, and to all candidates for nomina- by public and filed as records all candi- office, any or upon tion election to by agents, dates and their rep- financial filing petition of a or announcement for resentatives, any person acting or for nomination, persons and to all other re- candidate, on behalf any or the quired law to file such statements who issue, passage or thing defeat of apply shall therefor.” upon, item be voted trea- of all party surers committees. Although, respect with to the re Virginia (Supp.1985), porting expenditures, West Code 3-8-5 of campaign West § 3-8-5a(h) Virginia (Supp.1985) further mandates that “detailed accounts Code man- the ad- address, amount, and make effective name, standardize only that the dates provisions of West expenditure be ministration of the each purpose, [the and date of Virgi- by the Sec- West prepared Virginia Election under reported on the forms Code]” State, (1979 Replacement a more retary it is clear that 3-1A-6 nia Code § ren- summary Vol.), scope the actual service re- detailed within the and fall fulfill the necessary in order to is spondents’ mandatory regulatory dered duties. Virginia Code West requirement under 3-8-9(b) (Supp. Virginia West Code § expendi- 3-8-9(b) that such (Supp.1985) 1985) the “rate” and “total addresses both fairly “proper and reasonable tures are pay- amount” of liabilities incurred and rendered.” the services with commensurate candi-, made for services rendered ments elements, essentially three There are dates, agents, or treasurers of financial for de- provision of information sufficient political party Although committees. expense of whether an election termination regulations man- promulgation of rules and amount “at rate and for a total is a reporting dating of the actu- more detailed fairly com- proper and reasonable is would assist immea- al services rendered rendered” un- with the services mensurate surably in of whether the determinations 3-8-9(b) (Supp. Virginia der West Code § is proper, of such services “total amount” First, 1985). promulgation of rules and reasonable, fairly commensurate of renu- regulations governing “rate[s]” rendered, regula- rules and the services reasonable, and proper, meration which governing appropriate tions “rate[s]” ren- fairly with the services commensurate compen- types renumeration certain Second, promul- dered is essential. necessary. services are also sable regulations concerning gation rules' and Virgi- Objective in the by individ- criteria exist West of services rendered itemization rendering Wage corporations servic- Minimum and Maximum Hours nia uals Virginia Finally, the and the West Election Code promulgation es is essential. Law regulations mandating regula- promulgation more of rules and of rules and for the summary ren- establishing permissible of actual services rates of renu- detailed tions campaign disclosure campaign dered in liter- meration for distributors of statements is essential. transporters and for of voters to and ature 21- polls. West from categories permissible Of the eleven Vol.) (1985 Replacement provides 5C-2 campaign expenditures found in West Vir- that, employer pay each “[E]very 3-8-9(a) ginia (Supp.1985),the two Code § employees wages his at a rate not less are, susceptible “For ... most to abuse per hour.” than three dollars and five cents books, distributing pamphlets, circulars (Supp.1985) West printed and “For and other matter ...” “Each commissioner of elec- polls.” conveying to and from voters poll paid clerk shall allowed Obviously, payment of two hundred dollars sum, county to be fixed commis- on of ten leaflets to a voter distribution exceeding fifty not for his sion ... dollars transportation corner or for a street one election....” services spouse polls or her voter and his Wage Virginia Minimum and Hours reasonable, proper, fairly commensu- a minimum standard of reason- Law sets pure It rendered. rate with the services able and West renumeration In simple vote-buying. the absence of sets maximum Election Code standard however, regulations, governing rules and reasonable renumeration distributors renumeration, the itemization of the rate of literature, voters, transporters rendered, the disclosure of services perform and others who functions similar of cam- such information statements performed finances, governmental those functions paign a void is created within poll clerks on by election commissioners unscrupulous conceal their which the Obviously, day. of election levels actual activities behind a facade of antidemocratic campaign types renumeration for distributors of propriety. These of rules and official literature, voters, transporters oth- unquestionably “necessary of regulations are perform expenditure similar to total amount of proper, ers who functions those each is performed reasonable, fairly governmental functions elec- commensurate with poll clerks on elec- tion commissioners or Virginia services rendered under West day would somewhere within this 8—9(b)(Supp.1985). fall Simply by § 3— reasonableness, range depending upon of mandating summary a more detailed quantity quality of services ren- of amount and character the services ren- dered, exception with of election work- campaign dered on financial disclosure regular day employment who lose a of ers statements, thoroughly unobtrusive re- paid customary be at their rate of who quirement, a much more accurate assess- hourly compensation. ment of whether a reimbursement for ser- reasonable, proper, fairly vices is com- provision In order to facilitate. the Additionally, pro- mensurate can be made. detailed in more information revised cam- vision of such statements, sig- detailed information will financial paign disclosure more nificantly discourage frequent the more providers detailed information from compensable types plague often necessary. services abuse that our With elec- respect determining process. whether liabilities toral require Our laws and payments incurred made for the distri- campaigns in a conducted business- campaign proper, bution literature are like Imposition rigorous fashion. of more reasonable, fairly commensurate with reporting requirements respect with rendered, the services information concern- amount and character of services rendered distribution, place time ing of distribu- in exchange expenditure for an of cam- tion, and amount of materials distributed is paign funds is more no onerous than the In needed. order to determine whether ordinary bookkeeping essential to en- payments liabilities incurred and made for trepreneurial activity. transportation of voters to and from we Accordingly, hold that in order polls reasonable, proper, are fairly compliance to achieve with the mandatory rendered, commensurate with the services duty Virginia under West Code 3-1A-6 concerning information number of voters (1979 Vol.) Replacement promulgate transported, transported, names of voters regulations necessary rules and to stan mileage transportation incurred voters, dardize and effective the ordinarily make administra charged by and the fees provisions tion of employed per- West licensed common carriers Code, In particularly respect form such service is needed. the inter- Election standardization, est it the enforcement and administration of State, 8—9(b) consultation with (Supp.1985), West Code § 3— Commission, develop that, Election “Every which liability in organizations forms on which individuals payment curred and made shall be at a rate rendering pre- can itemize in services proper and for a total amount which is detail the and character of the cise amount fairly reasonable and commensurate with forms, turn, services rendered. These rendered,” the Secretary services fi- completion can used State, after consultation with the State by candi- nancial disclosure statements Commission, mandatory Election has a dates, agents, and financial treasurers of (1) promulgate rules regula political party committees. governing tions compensation rates of reasonable, proper, fairly mentioned, previously As commensurate with services rendered (1979 Vol.) can Replacement man- didates, agents, financial or treasurers of “Blank for all dates forms financial committees; (2) party promulgate required this article statements under regulations governing rules and secretary itemization prepared of state ...” name, by providers Obviously, provision address, of the amount and character amount, candidates, purpose, expendi- and date of each services rendered providing agents, political party falls short of ture sufficient in- treasurers com mittees; concerning and, (3) promulgate reg- formation whether the rate and rules and 724 power by the opens door abuses of reporting on the to governing detailed

ulations Secretary of of the State. forms campaign financial disclosure rendered of services amount and character provides 3-1A-6 candidates, agents, or treasurers financial Secretary of “shall have that the State Therefore, committees. party of make, and rescind authority ... to amend in this pro- grant a writ mandamus we of rules, may and orders as regulations such (1) respondents compelling the ceeding carry policy necessary the out regulations govern- promulgate rules and legislature, chapter.” as in this contained prop- are ing compensation which rates of recognizes pro- that this Code majority The er, reasonable, fairly and commensurate part legislature’s the shifts of consti- vision candidates, financial rendered services Secretary of burden to the State. tutional political party agents, treasurers of com- or fact, Maj. op. Despite this the See at 718. (2) mittees; promulgation regula- rules and legislature’s majority only condones the providers of governing tions itemization action, they They it. state “a applaud and character of services ren- the amount system regulation is detailed of essential.” candidates, agents, or trea- dered financial agree, regulations not be Id. I but committees; and, political party surers of promulgated authority the of un- under an (3) promulgate regulations gov- and rules delegation power. constitutional reporting campaign fi- erning detailed on Virginia pro- The Constitution West amount and nancial disclosure forms the vides: candidates, rendered character services legislative, judicial The executive agents, or treasurers separate dis- departments shall be party committees. tinct, the so that neither shall exercise granted. moulded Writ as powers properly belonging either others; person nor shall exercise BROTHERTON, dissenting: Justice powers more one of them at than time, except justices of the the same respectfully I dissent from the Court’s legislature. peace eligible shall be opinion in this matter. Const, V, provision 1. This art. W.Va. prevention corrup- fully support I part of our of the fundamental law State fraud in elections. The cost of tion and strictly construed and must therefore running public State and office this closely Syl. pt. ex followed. high. in the States is much too It is United Manchin, 167 rel. Barker v. W.Va. destroy representa- our a cancer that could legislature has S.E.2d The democracy. wealthy tive When the separation powers violated doctrine those individuals who able solicit by giving the of State au- monetary large contributions are the thority promulgate regulations concern- capable mounting candidates who are ing The elections. Constitution campaigns, it is time to reform successful that: However, the election laws. the reforma- prescribe shall accomplished within the limits must be conducting making re- manner through the of our Constitution and also elections, determining and of turns If use of common sense. election law re- elections; pass contested roughshod run over our form efforts Con- proper laws stitution, govern- the. basic fabric of our intimidation, prevent disorder violence I destroyed. ment dissent because I will be polls, corruption or fraud (1979) 3-1A-6 believe West vote, voting, counting ascertaining delegation legisla- is an unconstitutional result, declaring man- fraud officer, power tive to an executive because ner, upon the ballot. majority improperly I believe invaded Const, IV, province legislature by making (emphasis art. add- ed). policy, previously interpreted law I This because believe Court system majority section of the Constitution as advocated follows:

725 provision mandatory plena- targets This majority areas the abuse distri- pre- literature, ry, requires legislature campaign the bution of W.Va.Code 3-8-9(a)(3), all laws deemed neces- scribe reasonable conveyance the of voters § sary proper prevention the of for polls, 3-8-9(a)(8). W.Va.Code § fraud, elections, priority securing the of areas, may While exist abuse in these the ascertaining the results.... record no of evidence it. In tar- geting special these two areas for treat- laws, ... are deemed not [A]ll ment, majority impermissibly the has estab- but, only proper pur- for the legislative policy. lished This Court recent- honest pose of fair and elections and ly judicial policy- addressed issue of results, the ascertaining their Constitu- making as follows: legislature pass. commands the superlegis- This Court does not as a sit 806, Rader, 27 W.Va. Halstead v. 808-09 lature, pass upon commissioned to (1886) added). (emphasis social, economic, political, or scientific clearly The Constitution and Halstead of pertaining merits statutes proper prescribe power indicate that the laws subjects legislation. duty It is the regulating prov- elections is exclusive legislature facts, to consider estab- legislature. ince of the The Framers of policy, lish and embody policy that Constitution mandated power our that the legislation. purely legislative. An official of the Commissioner, 17061, Boyd v. slip op. No. government executive branch 3, 1986) added). 4 (July (emphasis If the perform purely legislative function.1 See legislature target any specific wished to County ex State rel. Court Marion 398, County Demus, 401, campaign areas of 148 W.Va. 135 activities for 352, (1964). special regulation, it S.E.2d 355 The would their is an authority official of the do so. This Court has no executive branch. Const, VII, By granting policy legislature’s 1. establish art. within the petitioner’s for request power. a writ of man- realm of damus, the majority impliedly upheld majority separation The also violates constitutionality clearly unconstitu- essence, powers by, drafting doctrine tional statute. legislation. They by establishing do this specific for addition, criteria rates of remuneration

In majority has violated the campaign requiring workers and separation powers doctrine usurping precise reports of legislature. services rendered authority The ma- jority permissible majority workers. The examined the list cam- states paign expenditures paid in W.Va.Code 3-8- workers should be no less than 9(a) (Supp.1985) catego- statutory wage,2 minimum and stated that two but no more expenditures fifty day ries of than per from list are more dollar sum fixed by susceptible The payment poll to abuse than others. statute as the minimum 262, (1978). Whyte, 1. The make executive branch rules 161 W.Va. 242 S.E.2d 238 Supreme recently regulations carry legislative poli The States Court out United re- in order to disapproval comingling its affirmed cy delegation authority under a constitutional legislative powers executive in Bowsher v. legislature. delegation by from “The 714, 3181, Synar, 478 U.S. 106 S.Ct. 92 L.Ed.2d discretionary powers of broad an (1986). Bowsher concerned the constitu- fitting body, accompanied by administrative tionality Budget Emergen- of the Balanced exercise, standards their is not of un itself 99-177, cy Deficit Control Act of Pub.L. Syl. pt. constitutional." State ex rel. West 1038, popularly Stat. Rudman-Hollings as the known “Gramm- Virginia Housing Development Copen Fund v. Supreme Act.” Court de- haver, (1969). 153 W.Va. 171 S.E.2d 545 I clared the Act because it unconstitutional cre- imply delegation do not mean to otherwise. A congressional usurpation ated a of executive legislative power agency to an administrative 718-19, powers. branch Id. 478 U.S. at 106 S.Ct. separation powers is a violation of the doc at 3191-92. delegation purely trine when such is of a legislative power. Syl. pt. Woodring See W.Va.Code 21-5C-2 2. Miller, 79 They power.” Sutherland commissioners.3 clerks and election (1917). 796, 803, I 91 S.E. exception to this rule one notable make just con- majority should be as believe campaign workers who lose stating that power by possible abuses cerned about may paid at their custom- day of work Secretary they are con- of State only compensation. Not has ary rate political campaigns. cerned about abuses legislation, they have majority drafted exception legis- to their an even fashioned to insure that This should strive State authority has no to do This Court lation. corruption from are free elections recently is not We noted either. “[i]t majority of this Unfortunately, fraud. redraft of this Court ... the function system which has endorsed a Court legislature. legisla- manipu- That is a type acts of the produce same pre- function, corruption supposed it is is forbidden lation and tive Court fraud cannot Crabtree, The cancer vent. exercising.” Starcher from placing almost control be cured absolute 709, 348 293 at 295 176 W.Va. at S.E.2d elected elections in the hands of one over I fear that the white public official. under Secretary of placing the on the By reform, majority has banner of election for elections un- promulgate rules powerful corruption. tool for created 3-1A-6, legislature der W.Va.Code § 3-1A- firmly I believe that W.Va.Code § of pow- amount given him an incredible legis- delegation is an unconstitutional promulgated at the er. The rules can be power to the executive branch of lative Secretary’s relating rules whim because and is therefore void. I would government subject not the West public elections are sought petitioner deny by the on the writ Act. Virginia Administrative Procedure ground promul- cannot be that rules 29A-l-3(c) (Supp.1985). See W.Va.Code § an stat- gated pursuant to unconstitutional will able to overrule I Accordingly, dissent. ute. leg- new Secretary’s by passing actions Virginia’s Secre- islation. Because West state that I am authorized to Justice official, tary it of State is an elected joins NEELY me this dissent. unlikely each new of State entirely new set of promulgate will an manipulated in The rules

rules. advantage. Al-

order to achieve years ago, stated seventy this Court

most delegation power legisla-

that the “the exer-

ture cannot be sustained where depend upon power] is made

cise [of grantee of caprice

the mere will (Supp.1985).

3. W.Va.Code

Case Details

Case Name: Rogers v. Hechler

Court Name: West Virginia Supreme Court

Date Published: Jul 9, 1986

Citation: 348 S.E.2d 299

Docket Number: 16884

Court Abbreviation: W. Va.