State Ex Rel. Carenbauer v. Hechler

S.E.2d 405 George Virginia ex rel. STATE West CARENBAUER, Petitioner,

E. Secretary HECHLER, Ken

Honorable Virginia, the Honor-

State of West McGraw, R. Justice of

able Warren Appeals

Supreme of West Vir- Court Respondents.

ginia, 27458.

No. Appeals Virginia. March 2000.

Submitted March

Decided

Dissenting Opinion of Justice 14, 2000.

Starcher Dec.

SCOTT, Justice. George E.

Relator Carenbauer1 seeks a Respondent, writ of mandamus to have McGraw, R. Honorable Warren declared ine- ligible sepa- as a candidate for to a election twelve-year rate term on this Court.2 As grounds extraordinary sought, for the relief Relator asserts that fails to Justice McGraw qualify eligible as an for office due currently to his status as an ful- incumbent filling unexpired an term to which he Additionally, elected. Relator contends that first, Justice McGrav/s actions as the author opinion3 declaring Speaker of a recent of the Delegates ineligible House of Robert Kiss S. appointment for to this Court under the emoluments clause of this state’s constitu- tion, now, seeking position denied,4 Speaker Kiss was both under- integrity mined the of this institution upon pernicious asper- and east it a cloak of Following sion. an exhaustive examination principles of constitutional combined with an equally thorough review of decisions concerning penumbral presented issues petition, we conclude that while the expressly proscribe constitution does not an Carenbauer, Charleston, George E. for Pe- justice yet incumbent whose term has to be titioner, Pro Se. seeking separate fulfilled from to a election Court, underlying seat on this the intent Union, Sprouse, James M. Rebecca A. enactment of article VIII of our consti- Sarasota, FL, Baitty, Respondent for tution, requirements which sets forth the McGraw. Court, selection to this as as well the entire Jr., McGraw, General, Attorney Darrell V. govern- structure of the branch of Williams, Attorney Robert D. Assistant Gen- ment; compact the social this state’s citi- o<f eral, Charleston, Heehler, Respondent zenry expressed through adoption Secretary Virginia. State West both the Constitution and the Judicial Reor- Charleston, 1974; Rudolph diTrapano, ganization L. Amicus Act of and the state’s com- pelling maintaining integrity Curiae. interest resignation 1. Relator maintains that he has filed this action result of the of Justice Thomas E. citizen, "entirely taxpayer on his own behalf as a McHugh in 1998. The term to which Justice Democrat, independent person- and al, commercial, other McGraw been has elected ends on December professional associations he party have.” Relator cites his status as a herein, given possibili- basis for relief Underwood, 3. See State ex rel. Rist v. 206 W.Va. Underwood, ty Republi- that Governor Cecil H. (1999). 524 S.E.2d 179 can, appointing would have the task of unexpired to fill the remainder of the term which fully appreciate gravity 4. While we currently Justice McGraw § holds. See W.Va.Code (1999) ethical concerns Relator has raised that arise (setting procedures 3-10-3 forth for fill- vacancies). ing judicial pro- from Justice McGraw’s involvement ceedings which resulted the nullification of currently serving 2. Justice McGraw is the re- body, Speaker appointment Kiss’ to this we do Virginia Supreme mainder of a term on the West rely grounds on such to resolve this matter. Appeals Court of to which he was as a elected judiciary, equally-compel- petitioner sought; as well as its relief (2) ling securing independent judi- legal duty part interest respondent ciary entanglements removed from the thing petitioner to do the which the seeks politics, require (3) all combine to this Court to compel; the absence of another cannot conclude Justice McGraw seek remedy. adequate through term-length enhance his these Syl. Pt. City State ex rel. Kucera v. Accordingly, grant means. the writ of Wheeling, 153 mandamus as moulded.5 challenges to Where the electoral Background I. Factual involved, however, process are precipitating spawned fact that recognized stringent need relax the petition filing was the of a of can- certificate requirements issuing writs of mandamus: didacy by Justice McGraw via the U.S. Post- public policies protecting in funda- 29, system January al W.Va. See rights, preserving integri- mental electoral Code 3-5-7 Were it not for the fact ty, promoting political both currently filling Justice McGraw is economy prompted practical cial term,6 unexpired remainder of an which runs approach assessing in whether an election 31, 2004, filing until December would not appropriate is case for mandamus re- unprece- have been momentous. Due to the lief_It is when a writ of manda- filing, press dented of this nature imme- preserve mus has been invoked to diately began publishing commentary7 on right political to or to run vote office of supreme the issue whether a court requirements that this Court has eased the could seek to election another term of court compliance for strict precon- for the writ’s occupying unexpired while still an term ditions, especially relating those to the body. that same per- When Justice McGraw availability remedy. of another withdrawing mitted the deadline for his can- didacy8 pass, 3, Syl. Relator part, avers he was Pt. in ex State rel. Sowards prompted request extraordinary Comm’n, to file a County S.E.2d (1996); relief virtue of Justice McGraw’s Syl. failure accord Pt. State ex rel. withdraw his name from Daniel, the list of Demo- Bromelow v. 163 W.Va. seeking (1979) (“Because

cratic candidates to this election im- S.E.2d there is an granted Court. This Court to show the rule portant public policy determining interest purpose determining cause for the wheth- qualifications of candidates advance of candidacy er Justice McGraw’s is in violation election, an this Court does not hold an elec- Virginia gen- of the West Constitution or the proceeding tion mandamus to the same de- laws eral of this state. gree procedural rigor ordinary as an man- case.”) damus

II. Standard Review Typically, this Court considers easing While we countenanced against whether issue writ of mandamus issuing extraordinary standard for relief following three-pronged standard: “preserving” the context of to run Sowards, A writ of will mandamus not issue unless the issues (1) case, legal although prohib- three elements a clear raised aimed at coexist — exigent presented by aspect press coverage 5. Due to the circumstances 7. We reference the not case, impending primary support election and the attend- as for the decision reached in this commentary calumny ant need to have Justice McGraw’s name re- but as on the state of ballots, cards, moved from the official ballot bal- has beset this institution since Justice McGraw labels, machines, voting pre-candidacy lot this Court filed his statement. mandamus, moulded, granted a writ of as order dated March 2000. The order cursori- provisions 8. Pursuant to the of West ly granted, identified the basis for the relief indi- 3-5-11(a) (1999), Code Justice could McGraw cating opinion that an was to follow which have withdrawn his certificate of until fully explain reasoning. would the Court's time, February 2000. After such no candi- permitted to remove name from date his/her supra 6. See note 2. the ballot. See id. highest in this ab- candidacy, suggest exigencies similar tribunal state. The iting a immediate, than de- for this conduct precedent rather sence audacious require which Moreover, ferred, explained jurisprudence, is not to this state’s we limited resolution. Bromelow, throughout principal purpose similarly lacking but other “[t]he states, fifty proceeding mandamus save one. Were not for the election liberalized pre-election judge, provide expeditious aspirations hear- thwarted of one other we candidates, authority completely so that would eligibility bereft resolve rights against voters can exercise their fundamental which examine Justice McGraw’s approach novel extension.9 eligible as to candidates.” Id. at term all 122; Maloney see also State ex rel. S.E.2d We not unmindful of the fact that a 513, 527, McCartney, 159 W.Va. differing regard viewpoint exists (1976) (stating “intelligent authority prohibit of this Court requires meaningful exercise the franchise McGraw from another on this term averting a void or voidable some method judicial body on the fact that our based recognizing that form of election” and “some expressly proscribe constitution does proceeding available inter- must be candidacy. anticipation of such may challenge in of a parties advance ested reproach, respond that this Court is obli- general eligibility of primary or election the gated by as the arbiter constitu- its role questionable in candidates order assure issues, duty to uphold tional as well as its the that will not a mock- elections become judiciary by in reposed confidence the this ery_”). agreed- That mandamus is the citizenry, state’s to resolve the issue Jus- resolving upon mechanism procedural candidacy. tice Concomitant to McGraw’s questions eligibility of a candidate’s is well- public the of the in sustained confidence the established: judiciary responsibility is the correlative that eligibility of a for an “The candidate integrity cynosure judicial must be the all office a elective determined endeavors, perceived. actual and both So and, proceeding upon mandamus a de in maintaining crucial is the state’s interest a that is ine termination therein integrity judicial system regu- the of its ligible to or to to be elected hold the office temporally lations or which restrictions affect election, for which he seeks nomination or access to the officeholder’s ballot have directing a will writ of mandamus issue been to withstand constitutional chal- found or board of ballot commissioners to strike lenge ground on this alone. Clements v. pri candidate’s name from omit such Fashing, 457 102 S.Ct. U.S. Syl. mary general pt. election or ballot.” (1982). recognized L.Ed.2d 508 This Maxwell, rel. State ex Summerfield upholding integrity interest of the (1964). W.Va. 135 S.E.2d judicial system, express and the inherent and Donnahoe, Syl. Haught ex rel. Pt. State power political to control this Court 321 S.E.2d 677 officers, judicial activities of all thus serve Against principles, these we examine Rela- predicate both the core our decision and as request tor’s for a writ of mandamus. ruling authority itself. for the Statutory A. Constitutional Provisions

III. Discussion matter, governing As we feel first to the consti an initial constrained We look VIII, years language tutional that not once the 137 since found article sec observe any legisla has individual tion whether state’s formation seven to determine pur- anticipated adopted of action such as that tive framers addressed the course McGraw. situation which we are sued here Justice No one with confronted. previously attempted language to “switch while that addresses seats” the issue Court, position judicial candidacy already occupying a on this states as follows: commented, legislator expiration Justice before term. 9. As astute contractual one seeking renegotiate McGraw is his contract (1984). In justice, judge magistrate upholding or shall the constitutional lan- No accept any ap- any guage permits judge or hold other not to forfeit trust, public judicial under this or pointment position, for a office files he/she government; shall any other nor he be- opined: Montana any public a candidate for elective come delegates [T]he [Montana constitutional] thereto, judi- except a office or nomination perceived opening up benefit office; cial and the violation of of these judicial election who judicial provisions shall vacate his office. desired to from move lower courts to the contend, might at first While some advocates district from court and district court to the glance, language that the constitutional does court, justice supreme or from a on the of incum- in fact authorize the candidacies supreme justice court to chief upon judges, scrutiny bent it becomes clear supreme say court.... To that a proviso adopted was not forfeits his if he for a office files non- presented in mind concerns judicial way saying office is but another filing. pertain It McGraw’s does sitting judge that a can file for other particular question of his to run for this forfeiting cial office without his office. as a office term-enhancement maneu- ver.10 (emphasis supplied). 679 P.2d at 1228-29 VIII, seven, language of article section Undergirding prohibition the constitutional permits to become candi- against nonjudicial elective office is vacating without date his/ objective of removing the correlative both her seat is aimed at two interrelated insulating judges from the preserving separation pow- concerns: for separating realm. While the reasons amongst govern- ers the three branches varied, judiciary polities many preventing entanglements ment question goal there can be no politics. with of this constitu- insertion removing polities and its attendant imbro- language through Reorga- tional the Judicial judicial glios necessary from is the nization Amendment of 1974 is directed at judicial proper functioning system. of our the “bar[ring] [judges] continuing from in office See, Gatson, 474, e.g., Philyaw v. 195 W.Va. nonju- they any after become candidates (1995) 478, 133, (discussing 466 137 Bastress, M. dieial offices.” Robert consequences in of defeated bid for p.213 at Constitution nonjudicial returning post- office to bench (1995). provisions “designed to These were election); Kelso, Report A J. Clark prevent judicial both obstructive conflicts and Judiciary, Independence the 66 S.Cal. entanglements politics.” Id. The Mon- of (1993) (“In 2209, Court, per- 2210 order to L.Rev. discussing pur- tana in the dispute-resolving law-declaring pose language on and of its constitutional this form junctions, judiciary largely subject,11 prohibi- the must also be stated: “The constitutional nonjudicial from, against judges seeking independent of, peo- insulated the tion of- and judicial political process. holding ple while still office is but and the It is fices part general through independence indepen- of a constitutional scheme de- —an directly claring indirectly rights promotes impartial or of dence that decision mak- the government judicial in office holders all branches of action will earn the re- —that holding spect people.”) (emphasis supplied). It to seek other office while still office.” Judiciary surprising an v. is not that the Code of Committee then Judi- Effective 105, 1223, State, complementary Mont. 1228 cial re- 209 679 P.2d Conduct includes VII, Constitution, § 10. While Relator stated that he did not seek to 11. Article 10 of the Montana 1972, “[a]ny adopted in states that holder of a current force Justice McGraw to vacate his seat judicial position position by either forfeits VIII, Court under the on this terms article judicial filing for an elective office rather than a position or 7, vacancy proviso implicated section is not absenting himself from the state for only judges nonjudicial as it affects who seek (60) days." sixty more than consecutive Com- office. State, Judiciary v. 209 mittee Mont. Effective 105, 1223, 679 P.2d 1224 590 that, activity” simply concluding political cannot reached “inappropriate

striction “resign judi judges sought by requires because the office Justice McGraw upon becoming a candidate for permitted by is a is cial office he VIII, non-judicial W.Va.Code of Judicial office.” terms of article section seven seek 5A(2). Conduct, discussing In Canon holding fulfilling still office while 5,12 corollary Washington to Canon often re an unexpired seat. While the dissent requirement, “resign-to-run” as a ferred logic rewriting employs in lan- contorted Washington Supreme Court stated VIII, guage article seven to state section embroiling prevent “seeks to this canon positive sitting justice may in that “a terms controversy allowing court a candidate for elective ‘become ”13 prestige dignity judge to trade office,’ cial such reformulation shallow Disciplinary office.” re Pro jurisprudentially It indefensible. neither Niemi, ceeding Against 117 Wash.2d analysis constitutional nor withstands does (1991) Shaman, (citing P.2d J. S. query the Court. The answer the before Alfini, Lubet & J. Judicial Conduct Story ring words of Justice still true: “How (1990) Thode, 11.19 and E. Ethics satisfy easily themselves men Con- Reporter’s Notes Judicial to Code Conduct exactly they what wish it stitution is to be.” (1973)); Judiciary see also Mortal Alpheus Stephenson, T. Mason & Donald G. (5th Comm’n, Cir.1977), 565 F.2d (10th Jr., Law 38 American Constitutional denied, 98 S.Ct. cert. U.S. ed.1993). If action the course of undertaken (1978) (articulating L.Ed.2d 395 rationale for contemplated by Justice McGraw was not resignation judges requiring seeking elec either the framers our state constitution nonjudicial “pro tion to office terms of Reorganization drafters Judicial judicial integ tect[ing] the state’s interest seriously Act of and we doubt that it equally rity sacrificing important without was,14 summarily then we cannot conclude campaigns for elective interests robust such action sanctioned under this legislative office the executive or branches provision. It is more reason- government”). simply able to find that behavior is out- Having language thus that the concluded express compact. side of our terms social VIII, of article seven directed section recognized Randolph County As Board forcing vacate their office Adams, Education nonjudieial to run for and to intend “[wjhen (1995), S.E.2d 150 the Constitution is similarly uphold separation powers by issue, particular silent on a the solution can- judicial becoming proscribing officers from in a methodology requires not found that be remaining for two candidates either of the tous or framers’ on assume divine the intent government holding branches of while still likely an which most was issue never consid- office, language we next whether the address 22, 467 at 163. ered.” Id. at justice incumbent issue authorizes an separate Finding explicit authority no seek a on the court constitutional seat before expired. candidacy15 reject- query term has The answer to this for McGraw’s and Justice 7(A)(3) authority, similarly Washington 12. Canon Ju- 14. have found no and of the Code of We hereto, that; by parties provides none dicial Conduct been cited to that any contemplation historical was demonstrates given they Judges resign shall when of to the issue whether incumbent on party primary become in a or candidates either expired term this Court whose has not could seek general nonjudicial in a election for a to another seat on this Court. election they may except that continue to hold their being office while a candidate for elec- 15. Given our conclusion that no constitutional delegate serving or tion to as a in a state language addresses the of an incumbent convention, they constitutional otherwise are election to seek mid-term another term by permitted Court, law do so. applicable do on not find Niemi, Disciplinary Proceeding Against 117 authority requires In re which "[i]n event 817, 41, ambiguity Wash.2d 820 P.2d 45 a constitutional amendment will re- every ceive reasonable construction favor of office_” 3, language by Syl. part, eligibility 13. This included the dissent in the for Pt. State 513, by Maloney McCartney, ex order issued this Court on March rel. summarily judiciary contention that mits members of the dissenter’s retain their prohibi- positions pursue while vacancies on express constitutional oth- the absence courts, conversely approval sitting Judges er but also sanctions warrants of such tion yet expired not candidacy, whose terms have to be we must determine whether positions candidates for identical the same bear on issue statutes court.” 443 426 N.E.2d at 747. N.Y.S.2d eligibility to candidate for MeGraw’s rejecting Judge postulate, In Hurowitz’s seat on this statu- another Court. York entirety New court examined the of the tory provision which addresses the critical language subject in which article VI eligibility Virgi- element office West language was located to statute, deter- § ap- nia 3-5-7. That which Code underlying general mine the intent of the candidacies, filing all plies requires article. candidacy by a certificate of announcement (or person eligible judiciary) “When

“[a]ny the whole sixth article who is seeks to considered, the Constitution political party position hold an office or certain to be purposes clearly by indicated! It was any primary general filled election in or proposed provide general the State a supplied). (emphasis part election.” Id. As announcement, complete sys- continuous of the the individu- tem, create, recognize and to and con- required al is to make a sworn statement tinue, all officers needed there- “is the office in he/she designed general for .... It 3-5-7(b)(8). was good faith.” W.Va.Code Oth- * * * filling the exclusive mode of emphasizing er than the obvious—that an * ** these offices should be election seeking political individual office must be eli- people, appointment.” gible hold the office seeks —the he/she general language election statute does (quoting 443 N.Y.S.2d 426 N.E.2d at 747 inquiry. present Potter, not assist us with our People ex rel. Jackson N.Y. light In (N.Y.Sup.Ct.1872)). 379-80 Analogous B. Precedent underpinnings judiciary historical arti efforts, Despite multitudinous research cle, the court in Hurowitz concluded that factually only one decision was similar un- designed article to assure a VI struc- earthed involved a officer who judiciary regular tured basis elected length sought enhance his still term while fragmentation accept without of terms. To fulfilling a term to which he had been elect- interpretation this candidate’s of section 20 Elections, ed. Hurowitz v. Board purposes would defeat the over-all of arti- N.Y.2d N.Y.S.2d N.E.2d 746 fragment cle VI. could Such activities (1981), sitting judge, civil court who had terms and create interim vacancies on ten-year served less than half of term to basis, regular thereby infringing upon the elected, he had been filed as candi- people’s right “complete and to a continu- ten-year for another date seat same judicial system”. ous McGraw, judicial body. Judge Like Justice (quoting N.E.2d at 443 N.Y.S.2d right sepa- Hurowitz asserted his to seek a Potter, 379). 47 N.Y. at judicial seat on same court rate the based on fragmentation Besides its over concerns language corollary the of New York’s to arti- disruption consequent and the VIII, cle section 7 of our state constitution. process, the court in Hurowitz considered VI, language the

Citing of article section 20 logical judge’s of consequences the the candi- Constitution, provid- of the New York which dacy judges: on the selection of Judge may eligible “a ed that not ‘be to abe candidacy Judge’s the public [T]he office other than nature of resigns aborting office ... his could of unless he have the effect the elec- ” office,’ position Judge argued process. By tion another cial Hurowitz the sits, quoted language only per- currently “not he the same court where 607, appeal sub L.Ed.2d 190 S.E.2d dismissed nom. Moore v. 946, 1689, McCartney, 425 U.S. 96 S.Ct. 48

592 perversion of would multiple himself chances that it work entire allows

he re-elected, judicia- but also assures that of spirit general to the and intent the be position to the other ry he is article[.]” when elected court, vacancy a will occur. Such same the 375, Potter, p.3 1872 at 47 N.Y. WL 9733 vacancy an additional occasion creates (emphasis supplied). Moreover, political involvement. public this potential for backlash to type of conduct the should this become type candidacy fully appreciated of was norm, possible positions that all it would be signifi- in the court Hurowitz: “Not without upon resignations appointive the would be of the cance in this connection is the risk Judges; only shiftings the other at and impropriety may per- appearance of be people general election would the the next public Judge’s injection in by the ceived vote, to effect of given chance the be process political into the for the sole himself merely to may approve be which the well extending purpose 443 his tenure.” Although we do not find appointment. 54, (emphasis N.E.2d at 748 N.Y.S.2d 426 currently practice, the like- that this injection into supplied). Such portends result abuse of lihood such Hurowitz, process, according to the court system. Even its elective viewed contrary to the intent of the constitution- light, this favorable conduct most to “minimize al framers the involvement potential court for “mischief’ which this judiciary political process cannot condone. might possible exposure influences Long 426 at 443 N.E.2d N.Y.S.2d sentiment, bring it.” Id. With this we decision, the the Hurowitz New York before agree. heartily consider, Supreme to Court was forced Right Candidacy C. Fundamental decision of the effects necessari- Potter Despite compelling nature ly upon the electoral when wreaked employed by the Hurowitz court rationale required appointments are due to Judge his forcing Hurowitz to withdraw politically-motivated vacancies.16 ballot, proceed must name from we may vacancy in a term ... “If a defeat the has a fun examine whether Justice McGraw privilege electors choose an prevents damental which ..., resignation during incumbent so ... similarly foreclosing can Court his running the term will have the same didacy. Beginning with this Court’s decision too, than appointee effect. More Wilson, ex rel. Brewer v. 151 W.Va. State Governor, may ... resign (1966), 150 592 overruled on oth S.E.2d occurs, vacancy again then Zink, grounds, 163 er Marra v. W.Va. again by appointment be filled for a like (1979), recognized S.E.2d fractional term.... And succession ‘“right a candidate for become appointment resignation, and res- ignation election to office is a valuable ” appointment, may kept be right.’ long up fundamental W.Va. as the and executive people willing (quoting at 597 29 C.J.S. Elections servants of S.E.2d 377); Zink, § 130 in it. accord Marra act Thus would the electors be 400, 403, (1979); permanently defeated in the exercise of W.Va. Follansbee, privilege City rel. their constitutional State ex Piccirillo of choice. 329, 333-34, It needs not to all the 233 S.E.2d name evils (1977).17 say, syllabus point would thus It two of ex result. is sufficient State supreme justice resigned adopted 16. When a court from 17. The United States general approach the on the bench the eve of the election' a different to issue of whether there appointment vacancy right an ated, to for resulted due to cre fundamental be a candidate Supreme Fashing, public New York Court had to deter In Clements v. 2836, 457 U.S. office. 957, (1982), appointed justice mine whether term the S.Ct. 73 508 102 L.Ed.2d 12-year recognizing appointment candi- "[fiar was term whether Court stated that dacy from year right,' very ended on we held that December 31st of that same as a 'fundamental general justice to due to selection the existence barriers a candidate’s access Potter, at pp. compel close election. 1872 WL 9733 1-2. to the ballot 'does not of itself

593 Pleasant, argues that Relator errone- 194 Justice McGraw City Point Billings v. rel. jus- incumbency as a (1995), ously seeks to use 301, held 436 we 460 S.E.2d as a road- serving unexpired term tice con- Constitution “[t]he candidacy. block to public to run for a fundamental fers unless office, cannot restrict which the State not take issue We do necessary accomplish a the restriction this Court cannot assertion McGraw’s governmental in- compelling legitimate and of su qualifications for the office impose terest.” justice in to those enu preme court addition VIII, supra in section 7. See merated article Qualification D. Additional qualifica 18. is axiomatic note It supreme necessary to office as analyze tions seek proceeding to whether Before prescribed justice which are compelling court are those legitimate and state is a there Const, art. by the constitution. See W.Va. justify prohibiting Justice that would interest VIII, in § terms digress con 7. While understandable candidacy, must McGraw’s attempt advocacy, Justice McGraw’s contention that what MeGraw’s sider Justice qualification cloth incumbency in qual “dress” his impose is to an additional seeks Relator scrutiny. Rela jus ing not withstand What supreme court does office of ification an additional is not insertion of tor seeks quintessence of Justice McGraw’s tice. The a limita qualification for but instead sought by is that Relator to the relief defense supreme court candidacy sitting tion on when any ruling prohibits his which body. to this eligible to reelection seek imposition of a constitutional amounts to the of semantical being a distinction Far from ly-prohibited qualification for Court.18 " 963, “[alppellees state office Explain- are elected scrutiny.’ 2836. Clements Id. at 102 S.Ct. further, po partisan on the Court stated: who contest restrictions holders 48, activity.” n. 115 S.Ct. adjudica- 514 U.S. at 835 litical Decision in this area of Historically, degree, original). (emphasis and involves tion is a matter 1842 the facts and circumstances Supreme upheld consideration of electoral restrictions Court has law, interests the State seeks to behind the affecting public and various officeholders both candidacy, by protect placing Thornton, restrictions 514 of civil servants. classifications who the nature of the interests those 1842; Clements, 48, 457 n. 115 S.Ct. U.S. at 835 may be burdened the restrictions. J., 1, (Stevens, 972, 102 S.Ct. 2836 U.S. at 974 n. Governor, Id.; Advisory 633 In re see also concurring judgment) concurring part 664, (R.I.1993) ("To the extent that ... A.2d 669 ("The appellees office is suffi hold state fact that candidacy prior ... identified state] decision [a ability justify to run on their cient to a restriction right, public as a fundamental those public imposed for other office that is light of Clements v. must be revisited beliefs Serv. generally.”); States Civil see United Fashing.”) Carrriers, 413 Letter Comm'n v. National Ass’n power generally have broad While states (1973) 2880, 548, S.Ct. 37 L.Ed.2d U.S. pro- pertinent the electoral issues determine cess, required dismissal of (upholding provisions that imposed requirements states candidates), who became civil servants Equal Protection Clause. See cannot violate the v. superceded in Bauers Cor statute as stated 141, Carter, 134, 92 S.Ct. 405 U.S. Bullock v. Cir.1989); nett, (8th United accord F.2d 1517 (1972). Rejecting the tradi- 31 L.Ed.2d Mitchell, 75, 67 S.Ct. 330 U.S. Public Workers scrutiny analysis applied to form of tional strict (1947) (upholding Hatch Act 91 L.Ed. 754 issues, Supreme protection ruled equal employ provisions prohibited civil service affecting an indi- classifications in Clements that office); see election to ees from ability con- to seek elective office survive vidual’s (9th Joyner Mofford, F.2d also scrutiny provided are "drawn stitutional Cir.1983) (observing, upholding re Arizona rational relation- manner as to bear some such a statute, sign-to-run that "burden legitimate ship state end.” 457 U.S. at to a to a desire and attributable is indirect 102 S.Ct. impose regulate and not to officeholders state concerning the constitu In its recent decision Congress”), serving in qualifications to additional Congres tionality state-imposed term limits on denied, 104 S.Ct. 464 U.S. t. Limits, cer 509, representatives, U.S. Inc. v. Term sional Thornton, 78 L.Ed.2d 698 U.S. 115 S.Ct. (1995), United States L.Ed.2d 881 Const, VIII, (setting forth art. 18. See W.Va. [“re that the Texas constitutional Court noted justices— qualifications supreme court two upheld sign-to-run"] provision, which in Clem years prior to ents, practice law for ten attempt regulate admission election). permissible "a exhortation in and referenced its officeholders” 594 law, imposing competent

significance only, they the foundation for in the but that are eligibility reasonably for a restriction familiar with the law of the juris- in this state’s office is well entrenched jurisdiction they to which are elected. prudence. judges While be axiomatic that are law, interpret uphold elected to Donnahoe, Haught ex rel. v. 174 State high juris- due demands a level (1984), 27, 321 677 W.Va. S.E.2d this Court competence dictional integrity in that presented with was the issue of a Requirements endeavor. or restrictions eligibility for circuit candidate’s court affecting eligibility for office that through petition seeking a writ of manda- reasonably public strive to meet such valid interpretation At mus. issue was an VIII, purposes impose impermissible do not language of bar- article section requires Furthermore, that to be to circuit elected court riers to such offices. judge, an individual “ha[ve] must been admit- particular state’s maintaining interest practice years law for at ted least five integrity judicial system of its sup- can Const, prior to his election.” art. W.Va. port restrictions which could not survive VIII, specific presented § 7. The issue was scrutiny applied to other five-year practice require- whether the law types of Fashing, offices. Clements 457 practice ment that such entailed had to have 957, 968, 2836, 2846, U.S. 102 S.Ct. performed been within the confines L.Ed.2d state. The candidate whose candida- Therefore, requirement hold that cy being challenged practiced was had law contained West Constitution only in the State of California. 174 at W.Va. VIII, 7,§ art. that candidates the of- 29-30, 321 S.E.2d at 679-80. After first of circuit fice must have admit- been determining ambiguity that presented was practice ted to the of law in the State for issue, language proceed- this Court years prior five to their election advances analyze judi- requiring ed to the reasons for compelling seeming the State’s interest practiced cial candidates before the maintaining judiciary qualified well respective bar of in which the state jurisdiction. in the law of the sought “[R]ecogniz[ing] reg- office. that the practice judicia- ulation of the of law and the atW.Va. 321 S.E.2d at 684. ry traditionally inherently intraterrito- rial,” Maxwell, In State ex rel. we concluded there were valid Summerfield (1964), requiring reasons for 148 W.Va. the constitutional- S.E.2d ly-imposed period practice of law had to have ease which we first determined that issues performed 32-34, been in this state. Id. at of a eligibility candidate’s could be resolved 321 S.E.2d at 682-84. mandamus, through this Court was asked non-lawyer eligible resolve whether a was interpreting law-practice After re- prosecuting attorney the office in the ab- non-existent, quirement encompassing specific sence of a statutory constitutional or necessary practice, but element in-state provision requiring county prosecutors to be proceeded the Court to consider whether its lawyers practice licensed this state. interpretation equal protec- could withstand concluding non-attorney Before that the analysis. Recognizing tion this court- eligible not position for election to upon eligibility only created restriction could satisfy county prosecutor, protections the constitutional this Court inherent considered to the fundamental to become a candi- both strong the law of other states and the compelling date for if it policy grounds served support ruling. interest, we reasoned: 543-51, Id. at 135 S.E.2d at 747-51. Of import noted, critical to the Court’s decision in previously As similar ex- power Maxwell pert was the inherent requirements judges ]ent[i]al are ciary regulate practice purpose require- common. The for such of law. See id. unquestionably They (citing ments is clear. Eary, are S.E.2d at 750 In re (1950)) intended to (holding insure

595 power public confidence its moral Supreme Court has inherent sustained law).19 Carr, 186, v. 369 practice sanction.” Baker U.S. the grant or refuse 691, 267, 737-38, 663 82 7 L.Ed.2d S.Ct. as this the Court has the inher Just sanction, moral which is the This power regulate practice of law so ent the underpinning public the of confidence regu power too does have the inherent judicial system our is at the heart West of Const, judiciary. art. the W.Va. late See VIII, Virginia Constitution article section VIII, (setting § 8 forth “inherent rule-mak 7 .... supreme appeals). of ing power” of court (empha- at 466 S.E.2d at 136 W.Va. examining judicial employee whether a supplied). sis subject “resign-to-run” requirement of resolving As an aid to the issue of whether VIII, 7 of our constitu article section judicial subject employees to the con- tion, began analysis Philyaw this Court “resign-to-run” provision of straints of the Gatson, v. 195 W.Va. 466 S.E.2d VIII, Gatson, 7 in this Court article section (1995), of with examination the constitu judicial employ- of examined how the duties of tional framework article VIII. necessarily ees are intertwined with the Virginia West Constitution article VIII objectives assuring “independence, im- cial of entirely powers and func- is devoted the partiality, public court and confidence the judicial government. tion of the branch of system.” at 195 W.Va. S.E.2d powers junctions, the and in- Since Discussing 137. encroachment inevitable structure, judicial deed the entire of integrity system” of “the unique branch are and unlike other permitting employ- would from result department government, regu- the rules of seeking in office while non- ees continue must, lating powers junctions those “legitimate we identified as necessity, adapted recognize those objectives”: “[ejnsuring impartiali- very soul differences. ty employees, protecting integri- of court government system- branch is that on a ty appearance impartiality of court basis, judiciary ic must maintain both offices, preserving powers the division of perceived impartiality: actual and set out in Constitution article design It is the of the law to maintain V, at 137. section 1.” Id. courts, purity impartiality pro- Continuing with the issue whether and to insure for their decisions the justice’s attempt to hibition of an incumbent respect and confidence of the communi- impo- amounts to seek election mid-term ty_ securing im- After wisdom and qualification, find sition of an additional partiality judgments, it is of concerning useful the discussion Gatson importance great that the courts should “resign-to-run” requirement whether reproach suspicion be free or the qualification amounted to an unconstitutional unfairness. explained for candidates office. We Doolittle, v. See Forest Coal Co. Marra, why in which in Gatson decision (1903) 210, 227, (emphasis S.E. municipal charter found that Court omitted) (quoting approval Oakley wrongly imposed an additional provision had (1850).) Aspinwall, 3 N.Y. year residency in con- qualification of one Gatson, 195 W.Va. at 466 S.E.2d at 136 constitutionally-provided travention of the vein, (emphasis supplied). Continuing in office,20 non-judicial was not qualifications for we observed: issue before the Court: determinative Frankfurter, dissenting circuit court’s reli- in Baker We believe Carr, best, misplaced since the re- “[t]he have said it ance on Marra impose an addi- authority possessed sign-to-run rule does not Court’s neither — ultimately qualification tional on a candidate. purse nor the rests sword— Const, IV, 30-2-1(1998) § (granting 20. See W.Va. art. 19. See also W.Va.Code deny power grant appli- law). practice cant’s license to qualifications portant regulatory generally not interests employer did alter reasonable, office, justify nondiscrimi necessary to run for but rather es- sufficient retaining requirements natory noting for em- “[w]e restrictions” and have tablished employment eligi claimant’s ployment. upheld on candidates also restrictions upon a reasonable restric- goals conditioned bility legitimate that serve tion, values”) (cit unique of the nature of which because to First Amendment unrelated imposed not on employment 2836, would be Clements, 957, 102 ing S.Ct. U.S. private in sector. This ex- employees 508). L.Ed.2d resign-to-run requirement to of the tension designed prophy- judicial employees is as a vociferously While Justice McGraw protect the lactic measure to entire candidacy prohibition that a of his contends legitimate a and inde- This rule is branch. necessarily conflicts with and violates either condition of claimant’s continued pendent right a or his to be the electorate’s Judiciary. We hold employment with the choice, right to for the candidate of their vote judicial employees re- on the restriction acknowledge is that “[n]ei what he fails upon becoming a resignation quiring franchise, candidacy nor ther the non-judicial a office is rea- candidate for however, regulation.” from are immune So- sonable. 747, wards, at at 927. 196 W.Va. S.E.2d 478-79, at 137-38 at 466 S.E.2d 195 W.Va. regulation of the electoral has original emphasis (emphasis in omitted impose genesis in the irrefutable need to supplied). “order, than chaos” in the democratic rather Gatson, in Brown, 724, 730, the circuit court Justice Like process. 415 U.S. Storer wrongly on Marra as' relied 1274, McGraw 39 L.Ed.2d 714 Aris S.Ct. controlling of outcome of this case. Con- ing “preserving from this in state interest position trary to the advanced Justice integrity reliability of ... elec McGraw, qualification for additional office no process” corresponding toral is the “authori by restricting sitting a imposed when will be ty prescribe rules for reasonable the con justice, term has not supreme court whose elections, procedures by duct reasonable may on this Court. expired, seek a new term may qualify which candidates to run for of qualifications required to The fundamental fice, they and the manner which will be not a seat on this Court21 are affected seek Sowards, elected.” 196 W.Va. from by prohibiting Justice McGraw at 927. judicial body on this at this a second seat upholding provi- In a Texas constitutional juncture currently in his unfulfilled term. prohibited judges eligibility sion that from do, being solely forced to What this Court legislative “during office the term for unprecedented response appointed”22 equal which he is elected McGraw, impose is to undertaken Justice protection grounds, the United States Su- eligibility for a restriction which affects elec- preme Court relied the state’s interest body, qualifications tion to integrity sys- maintaining the tribunal. holding a seat on this See Clements, Celebrezze, tem. 457 U.S. at 102 S.Ct. Anderson v. 460 U.S. & (1983) judge provision 2836. The affected n. 75 L.Ed.2d 547 103 S.Ct. peace, was a who was in the regulations affecting (recognizing that while serving four-year Analyz- necessarily some effect on midst term. elections vote, “[nevertheless, placed im- right to the State’s the burden23 who analysis 23.Rejecting equal protection supra traditional 21. See note 18. scrutiny requires uphold which strict classifi- upheld separate 22. The Court in Clements also cations, the Court determined “that this sort of resigna provision required insignificant interference with access to the bal- county range office tion of a wide of state and predicate lot need rest on rational order a candidate for state or holders became challenge Equal Protection to survive a under the the office then held.” federal office "other than Clause.” 457 U.S. at 102 S.Ct. 2836. (quoting S.Ct. 2836 Tex. 457 U.S. Const. art. XVI, 65). sought legislative position neglect ther his to hold abuse nor his aspirations of his higher duties because reasoned: office. The demands cam- merely prohibits Section 19 officeholders paign tempt Justice Peace to cutting short their current term energies devote less his than time and full legislature. order serve responsibilities A office. Texas, term of office for Justice campaigning might the Peace years, legislative is four while Peace tempted to render decisions and take ac- every years. elections held two There- tions that serve might more to his further fore, simply [Judge] § requires 19 Baca to political responsibili- ambitions than the 4-year complete his term as Justice the ties The State’s interests are office. may eligible Peace he for before the especially important regard with therefore, most, legislature. At Baca must cial It is a serious accusation to officers. cycle years wait two election —before —one charge judicial making a with a officer may legisla- he run as a the candidate for politically By motivated decision. con- ture. trast, expected legislator it is a to be will regard due vote with to the views of establishing “waiting pe- In a maximum his constituents. years candidacy by riod” of two for a Jus- legitimate Texas has in interest dis- § legislature, tice of the Peace for 19 the couraging Justices of the Peace from places politi- a de minimus burden vacating current By their terms of office. cal aspirations of a current officeholder. requiring complete Justices the Peace Section 19 discriminates neither the office, terms of current the State has political any basis of affiliation nor fac- eliminated one incentive to vacate one’s qualifica- tor not to a related candidate’s prior expiration of the term. political tions to hold office.... The State act to avoid the difficulties case, § 19 burdens who that accompany ap- interim elections office, successfully has been one elected pointments. political but him whose ambitions lead (footnote 457 102 U.S. at S.Ct. 2836 pursue Legislature. in a seat the Texas emphasis supplied).25 omitted and As articu- (citation 966-67, at U.S. S.Ct. Court, by highest lated our nation’s the bur- omitted). omitted and footnote Court placed judiciary upon dens the which result emphatically “waiting period’ “A stated: political activities necessitated the hardly significant candidacy.” barrier election and serve to un- reelection 967, 102 Id. 2836.24 S.Ct. dergird necessity ruling for our that cam- paigns by to a kept officers be mini- difficulty The Court in Clements had no mum. identifying predicate rational for section

19: sug Counsel Justice McGraw provision

That gests repeatedly furthers Texas’ interests in in his brief that if this Court maintaining integrity any of the State’s rules fashion which his candi defeats dacy, By prohibiting ruling only by Justices of the Peace. can- can be motivated didacy legislature completion political, non-legal for the until bias of the members of assertions, one’s seeks to being term en- this Court. Such besides inaccurate, insulting grossly sure that a will the Peace nei- are both "waiting pe- 24. The Court's determination that 25. Included in its rationale comment significant ap- riod" was not a burden does not particular "[t]he interest maintain- State’s pear prompted by relatively to have been system integrity of the could two-year period short the Court involved as si- support § if such a could even restriction multaneously referred to its decision in Chimento scrutiny regard survive constitutional Stark, 414 U.S. 38 L.Ed.2d S.Ct. Clements, other 457 U.S. at 968 officeholder.” (1973), seven-year upheld which dura- 5,n. 102 S.Ct. 2836. residency requirement tional New Clements, 967-68, Hampshire. 457 U.S. 102 S.Ct. 2836. requirement concerning Virginia The West Constitu- unprofessional. necessary eligibility to seek qualifications the West tion confers on a circuit court office as expressly and Appeals, both 33-34, Donnahoe. W.Va. at See power protect necessary implication, equally beyond dispute at 684. It is govern- branch of integrity of the in seeking that the action of Justice McGraw regulate duty to ment impugned to “switch mid-term has seats” judicial officers. activities of all judicial body. Similarly character of this pre- importance is the above discussion Compelling State Interest E. judicial system. serving integrity pre Against both and federal Conduct, W.Va.Code of Judicial Canon See cedent, has whether this state we examine jurist expounded, As wise “The need one grant permits it to compelling interest preserve judicial integrity more than based on requested relief Relator just judges satisfying a matter of themselves office status as a current MeGraw’s in work that the environment which is Both and Relator this holder of this Court. sufficiently of to free interference enable multiple con bases for have identified Court honorably to the them administer law and compelling cluding has inter that the state efficiently. citizenry and Litigants our justice prohibiting an incumbent whose est general be Hobson v. must also satisfied.” from expired election to term has not Hansen, (D.D.C.1967) F.Supp. body. addition term on this to another J., (Wright, dissenting). an individual When judiciary, maintaining integrity of the the the obviously personal so to advance his seeks assuring also valid interest in the state has a through an interests unorthodox and judicia impartial and public independent an previously uncharted method of term-en- judicia ry, minimizing the the involvement of hancement, gainsaid public it cannot be that process, upholding ry political in the the quickly that sentiment would conclude this constitutionally-delegated of select method justice sitting deserving action is not of on ensuring ing supreme justices, court and that of this court last resort. judiciary critical and the can sustain the assuring The state’s the interests inde necessary unique collegiality of element pendence impartiality judiciary and of the decision-making process this Court. the of judi minimizing of the involvement the Collectively, legitimate state interests these ciary political process go in the hand in hand. judiciary’s power combined with the inherent judiciary properly It is axiomatic that can itself, regulate compel the conclusion that only independent function it acts of all when person serving a no who is as a term interests, or extraneous influences whether Supreme Appeals of of of this the Court political or otherwise. Critical to under eligible shall be as a to seek to file standing judiciary imperative that the the be nomination to another term on or election separated politics, other than as begins prior expira said Court elections, required purpose of is an the being tion of the then served. term appreciation dangers presented by of the Addressing legitimate state in these judiciary. commingling politics with the pri individually, first the terests we consider instinctively recognized Hurowitz court the mary upholding at stake interest the unnecessary exposure inimical effects here — beyond integrity judiciary. of It dis the judi political process would the have the pute, pronouncements in based on the Clem ciary. N.E.2d See 443 N.Y.S.2d at ents, regulations affecting or restrictions Judges guard against 748. the candidacy of access can in the form ballot perception political involvement the scrutiny withstand process subjects when-those of them the influences pur Here, ballot limitations are established help those who secure their elections. judi conduct, judicial pose maintaining integrity of of it as in other instances ciary. only accuracy allegation S.Ct. This an U.S. but, concern, sig previously adopted impropriety rationale em that warrants nificantly, appearance ployed interpreted it Clements when is even mere signal impropriety capability collegiality necessary with that has the the element judiciary as an disastrous for the properly results decision-making. effect recognized by institution. As implies While the decisions Niemi, Washington “[pjublic con Court of disagreement, implies parties it also that the ‘citizenry fidence is when undermined approach dispassion- to such must decisions conelude[s], erroneously, even that eases ately dispute the business of resolution with- the basis of [are] decided on favoritism personal animosity healthy out and with prejudice according to rather than law respect opinion. for honest differences of ” 44 (quoting fact.’ 820 P.2d at J. Shaman et Unfortunately, brought candidacy has al., Judicial Conduct and Ethics 10.03 unhealthy pall partisanship.27 with 275). Consequently, system opinion experienced The author has regard must vigilant be ever collegiality first-hand the loss of can public’s perception improper infusion promote disharmony im- serve polities within courts. pede rational discourse. Perhaps compelling most obvious and We do not conclude that Justice MeGraw why candidacy reason Justice McGraw’s ineligible to be a on lack of candidate based permitted should not be arises from the ef Const, VIII, qualifications. See art. fects that a mid-term Instead, § 7. ineligibility arises from the system fully-explored court whole. As as a compelling permissible State’s interest in by the New York courts in both Hurowitz regulating of its activities Potter, the electoral method of Clements, 968, officeholders. See 457 U.S. at abrogated by requiring, perhaps selection is 2836; Donnahoe, 102 S.Ct. 174 W.Va. at 33- infinitum, judges placed ad on a that be 684; 34, Joyner at see also court appointment process via the con when (9th 1523, Cir.), Mofford, 706 F.2d cert. trived vacancies occur. Hurow See denied, 1002, itz, 509, 464 U.S. 104 S.Ct. 426 N.E.2d at N.Y.S.2d (1983) Potter, p.3. (rejecting argument at L.Ed.2d 47 N.Y. 1872 WL 9733 through qualification being attempted The evils that could be fourth for office was im easily posed by “resign-to-run” provision “forced” vacancies are Arizona perceived. Notwithstanding patent cir prevent the not “because it does an elected state process, cumvention of electoral the dis the running from federal officeholder for office” ruption operations to the of this Court would poten justifying and this “indirect burden on catastrophic permit be were we Justice permissible Congress” tial as candidates MeGraw, consequently every present and officeholders); Signorelli regulation of state justice sitting and future desirous of follow (2d Cir.1980) Evans, 637 F.2d suit, ing jump fray, into the irre election (upholding requiring law to re spective by being the term when filled sign judiciary before federal expires.26 individual permissible regula Congressional office as judiciary suggesting that tion of and uncon Finally, forthright would be less than qualification is stitutional additional obviated acknowledge didwe not the effects this can- didacy ability regulation designed “is to deal with a has had to where on this Court subject authority”).28 constitutionally-required conduct its duties within traditional state by lengthy 26.Were this Court to sanction Justice McGraw's 27. This was further evidenced by candidacy, setting engaged prior place colloquy be mech- we would the dissenter argument be oral of this case. discourse made anism that would allow seats to con- That that, regardless tinually by already sitting up grabs clear of the substance of this those on body, opinion, believe that the purpose the dissenter refuses to this for the sole term- whether majority wrongly ruling its on defeating has not based enhancement or as a means of political leanings. perceived justice. particular reelection of a Whatever the objective, seriously folly can no one doubt the Joyner Signorelli inherent to "revolv- were the establishment such a 28. Both and cited with ing-door” approval selection. Where the United Court in method States authority would it end? fear that the end result would U.S. Limits as additional for the We Term complete regulation public’s permissible See the utter and demise of the of state officeholders. system. confidence in 835 n. 115 S.Ct. 1842. 514 U.S. at Storer, S.Ct. regulatory U.S. implicit and ballot.” explicit our Given required judiciary, powers over we are clearly unan- and unprecedented, this resolve with a end this case come to the We constitutional framers ticipated by either constitutionally-pro- for our profound respect an incumbent legislature,29 issue of or our equally an responsibilities scribed

justice’s authority to seek another seat historical, regard our institution- healthy currently judicial body serv- while same protect ally-mandated obligations to con- unexpired term. Because an ap- integrity of this structural void, statutory because stitutional and in a manner our constitution ply the terms of issue, to resolve this this pressing need comports with common sense which a rule that to formulate Court was forced promotes weal. action which propriety addresses the prohi- foregoing, writ of Based on the history attempted during the had never been granted as moulded and the Clerk bition state. forth- hereby issue directed to the Court for this with the mandate case. emphasize our deci We wish granted moulded. Writ “criti in conflict with the sion does not stand sovereignty postulate cal is vested MAYNARD, DAVIS, Chief Justice sovereignty people, and that confers McGRAW, deeming themselves and Justice freely people right to choose participate disqualified, in the did Limits, -” Term officials] U.S. [elected case. decision funda- 115 S.Ct. 1842. The 514 U.S. JOLLIFFE, Judge Judge E. FRANK representative democra- principles of mental FOX, II, Judge L. THOMAS H. FRED cy altered this decision. have not been assignment. sitting temporary KEADLE impermissible barrier to has No by this decision. Justice been erected dissents and files Justice STARCHER expira- to wait simply McGraw until dissenting Opinion. may his term he tion of current and then Justice, STARCHER, dissenting. of the properly avail himself electoral 2000) (Filed Dee. no harm to this state’s consequent with unconstitutionally might majority opinion system.30 The cial “To conclude otherwise system the stability steals the voters West political sacrifice of the the they, the State, right whether or not profound consequences for decide of the voters, qualified, eligible candi- citizenry, merely elect a entire in the interest of would the 12-year sup- particular ... date—Justice Warren McGraw —to [a] ] [his] and candidate! Appeals.1 on our Court of porters having access to seat instantaneous the maintaining integrity legis- the the While McGraw the holders and 29. Justice contends that Storer, system simply authority See implicitly untenable. lature has found his ac- (upholding Cali- U.S. at 94 S.Ct. 1274 tions as its recent consideration demonstrated provisions imposing legislation preventing ballot fornia election code aimed at future candida- affecting independent serving restrictions candidates cies incumbent officeholders unex- terms, holding quite expressly pired argument that "State’s interest find this to be system” "outweigh[s] stability political specious. the of its supporters candidate the interest the access); may Signorelli, ballot have” in Contrary protestations of Justice 30. reg- (explaining while N.Y. 637 F.2d at 858 that regarding McGraw the disenfranchisement Congressional prohibiting ulation granting this state’s voters that results from the “absolutely during term limits prohibition, right writ of to vote for citizens' time,” period "for choice the electorate” impeded of their choice is not provision “places ... no between obstacle candidacy. through temporal When denial of the ballot or his nomination or [a candidate] and eligible a new term Justice McGraw is to seek people He is free to run and the his election. Court, accordingly voters exer- this him”). are free to choose rights. suggest, cise their To as does franchise McGraw, overtly, implicitly that Justice if not dissent, parallels there eerie supersedes I file this state's le- 1. As to franchise majority’s a rule gitimate regulating between the creation of office- interest pot calling But it is a case of the the kettle I. majority opinion to characterize black Irregu- Correcting Regarding the Record ’ language as “slanderous.” others the Panel in the larities Selection of example, majority opinion For de- Heard the Instant Case my dissenting language in this scribes majority at 599 n. opinion, 208 W.Va. The original agreed to order which we Court’s sharply n. criticizes at 420 S.E.2d merits of this case as “contorted hear the argument of this case my at the oral remarks “shallow,” “jurisprudentially logic,” inde- regarding the selection members fensible,” at 542 S.E.2d at W.Va. this ease. panel heard majority opinion calls 411. And the my majority opinion characterizes re- The “insulting grossly attorney un- MeGraw’s making [I] refuse[ ] “clear that marks as professional,” 208 at at W.Va. S.E.2d majority wrongly has not to believe majority opinion 418. The further describes ruling perceived lean- based its “impugn- Justice McGraw as “audacious” ings.” My would be not to re- Id. choice Court, at the character” of this by majority, spond swipe all to this but 588, 598, opinion of this is entitled to the the reader on, go examples I could but these suffice. majori- picture. dispute than full Rather ephemeral, It include such was mistake to remarks, then, my I ty’s characterization of opinion gibes ill-considered in a formal of this simply forth in full in will set those remarks of words Court. Such an unfortunate choice Appendix opinion. to this collegial- certainly nothing encourage does may judge him- or The reader herself (Dissents, being ity on more the Court. majority correctly whether the characterized historically personal opinions, than Court regarding procedures my remarks used latitude, dissents, greater but even in panel members who heard the select hominem, harsh, language age ad does suggest majority’s I instant case. well.) wrong. characterization is III. II. Majority Opinion is

The Rhetoric Rudeness Legally Erroneous majority opinion: quote To from the “The majority says “impos[ing] that it is opinion experienced author of first- MeGraw’s] [Justice restriction which affects collegiality can hand that the loss of body, eligibility [his] to this not for election disharmony impede promote to serve qualifications holding a on this tribu- for seat rational discourse.” 208 W.Va. at 420. nal.” 208 542 S.E.2d W.Va. majority opinion at 420. Then the S.E.2d words, majority says that In other language any- proceeds to use conducive to imposing a that “affects” certain restriction See, thing collegial e.g., but discourse. they “eligible” to people by saying are not at 587 n. at 408 n. W.Va. — not the be elected to a seat on this Court —is press “commentary ... credits the with people thing holding that those same same [leading calumny to that has a] state beset on this “qualified” not to hold seat Virginia Supreme [the this institution West Court. Appeals] ....” utterly “Calumny” any person, this is an is in the En- For sensible defined Oxford Dictionary distinction. glish as “slander.” non-existent clearly deprives procedure state law case that the voters of West that is authorized instant apple Virginia right and as American as of their to vote for a candidate— and is as established majority pie! .VicePresident Gore—and and the decision In the case of 5-to-4 Supreme should not Court to create a rule the case of Justice United States McGraw— deny right making up prohibits machine-reject- citizens their the hand count of be rules that election, vote! ed ballots the Florida Presidential then, Philyaw, ma- wading through a field of irrelevant the sole case After jority support apparently cited and discussed uses its distinction-without- cases that are reasoning, totally inapposite majority’s lack of a-difference is provide for the cover holding, majority opinion case of Justice authority McGraw. for jurisprudential hat on ultimately hangs its Gatson, Philyaw IV. case our recent 466 S.E.2d Majority Opinion Warning A Fulfills Past, upheld (properly promul- Violates Justice Philyaw, from that said that a MeGraw’s Fundamental Constitutional gated) Supreme Court rule judicial Rights Rights employee of- and the the Voters

magistrate court —not resign employment with their this State ficer—had if ran for a system, non- the court Constitution, Virginia The West Art. judicial office. Justices, Relating Provisions “General Magistrates,” Judges pertinent states in imposi- this rule was not an said that We part, emphasis added: qualification on a candi- tion of an additional justice, judge magistrate No or shall hold office, for but was a “reasonable re- date office, any accept any appoint- other or retaining quirement employment [in for ] trust, public any or this or ment under judicial specifically branch.” We the] government; other nor shall he become a regula- grounded the reasonableness any elective or judicial employees upon tory restriction on for thereto, except judicial nomination analogous express provi- of- fice; any and the violation of of these running forbidding officers from sion provisions shall vacate his office. non-judicial for office. language easy It This understand. Philyaw Contrasting with the instant ease: clear that Justice chose to run for McGraw reviewing employment majority is Governor, Senator, County or State or Com- one, creating out whole restriction —it any non-judicial missioner or for other cloth. resign he would have to first from the case, no Prior to this (or ciary automatically by filing removed has employee ever been barred officer office). for the running any from office—be- However, equally it is that if clear course, cause, specif- to do so is Magistrate, to run McGraw chose Circuit ically reserved our Constitution. “judicial Judge, or a Court seat —all required resign is not offices”—he majority acknowledg- its own currently-held judicial office. ment created a “restriction” that has no provision any grounding in written anyone say inHow the world can that —on rule, statute, phrase. or constitutional reading language this clear McGraw —Justice should believe that he was barred from run- majority The restriction that the is creat- Court, open ning for an seat on this when Philyaw is not —as it was open “judicial that seat is a office?” judicial employee part any power that is — (in essence) majority says But the given to this “conditions” for Court set the —“... just right.” doesn’t seem “employment” in Justice MeGraw’s his cur- seat on this Court. rent Well, years ago, great a little 100 a over Judge] a on this warned [then Justice Court “employment” Justice MeGraw’s conditions dangers letting people tamper with entirely by oth- set the Constitution and thought some- the Constitution when applicable express er law. Justice McGraw right.” thing “didn’t seem from office for a breach of could be removed long by any Not after the of this those conditions —not vote Constitution majority only by impeach- adopted, Brannon warned of this state was Justice Court —but qualifications additional for ment. that permitting any process resulting deprivation imposed by other to take action office to be — office, privilege except to hold under than constitutional amendment —would make right public explicit statutory require- constitutional or fundamental to hold office sentiment, “subject to the fluctuation of ments. constantly changing legislatures, caprices of Wysong, ex rel. Thomas v. State W.Va. passions of the hour:” (1943) (citation 24 S.E.2d omit qualification If one additional material ted); County Raleigh Webb v. Court of prescribed, why be not another? County, 113 W.Va. S.E. Why many The constitution is not others? (1933) (“it generally is so that one who is true law, strictly construed in fundamental qualified public is to hold citizen and voter rights. of the citizen’s It is the defense office, any exception generality that that Magna rights, Charta of his freedom and explicit”). should be made clear political and civil. Admit once that it does majority admits that there is no clear qualification fix his for office. Where explicit statutory prohibi- constitutional or would his That disfranchisement end? tion to for Justice McGraw’s elec- depend upon political, would uncertain reli- 12-year tion to a seat. The law mandates gious, or other winds. limit Would we presumed eligi- is Justice MeGraw act within bounds of the reasonable? clearly ble for office unless the Constitution indefinite, unsafe, precari- That would be explicitly prohibits candidacy. ous, dependent upon the times and motives point It is not McGraw’s burden to Against dominating and aims them. these explicit provision allowing him to to some run things, right it was intended embed the eligibility presumed; is for because his in the solid rock of the constitution. rather, right that his to run the law clear McAllister, Thompson ex rel.

State only by can be taken him some clear from (1893) 485, 507-08, 18 W.Va. S.E. 777-78 explicit constitutional restriction —not Brannon, (dissenting opinion of Justice by judicially-imposed restriction. Zink, adopted in Marra v. ruling long- in this thus turns Court’s case (1979)). 400, 256 W.Va. standing precedent on its head. court, Thompson In the case before the public This articulation of a new Court’s qualification additional for office had been policy extraordinary, especially in this case is colorably legitimate created at least a light obvious fact that the Court’s way legislative enactment. — previous holdings recognizing our — case, In Justice McGraw’s an additional has at its core a funda- State Constitution qualification been created right mental to run for office—confirm that Court, majority which has asserted public policy Virginia is the West right qualification add that is found right to run office itself. fundamental in our nowhere Constitution —in accordance cloth, Creating, vague new whole majority’s public policy. views “public policy” expres- that defeats the clear eases, both the result the same: a right, constitutional sion of this fundamental right fundamental constitutional of West Vir- to all known of constitu- is antithetical forms “indefinite, unsafe, ginians has been made wrong interpretation. It for the tional precarious, dependent upon the times and Constitution, to Court to search outside the dominating motives aims them.” public policy to defeat Justice create new Thompson, 38 at 778. S.E. right. fundamental constitutional MeGraw’s constitutional is not The heart of construction every law is clear citi- ways to defeat a fundamental search zen has the to run for office. right, but to ensure right tempered only by explicitly That can be rights preserved. requirements: stated right Qualifications than a citizen to hold office is the to run for office other rule, ineligibility explicitly general to hold those stated the Constitution office exception, is courts unconstitutional. extra-con- hence will hesitate itself are Such prove to by apply, and the state unit have enacted qualifications stitutional —be or, here, judi- necessary compel- of a by its action is because enacted Legislature ling government lawmaking expressly interest. policy” “public cial —are Virginia Constitution of the West violative Phillip County M. Bd. Leon v. Greenbrier 400, 909, Educ., authority in our is no direct 199 W.Va. S.E.2d ... there since (1996) added). Legislature to (emphasis for the estab- Constitution in excess of qualifications lish Virginia confers a “The West Constitution by Virginia [the West Con- imposed those right public to run for fundamental qualifications find other ... we] stitution cannot unless the which the State restrict unconsti- Constitution] in [the than those necessary accomplish legiti a restriction very our by terms and under tutional compelling governmental interest.” mate ... process, ... protection, due equal own City Billings rel. Syllabus Point State ex assembly speech freedom Pleasant, Point 194 W.Va. S.E.2d provisions. (1995). Accord, e.g., Piccir State ex rel. Follansbee, 329, 335, omitted.) City illo v. 160 W.Va. (Citations Marra, 163 W.Va. (1977); v. Man White S.E.2d at 586. 256 S.E.2d chin, 173 W.Va. 318 S.E.2d a whole line cases Marra overruled words, (but passes when the State a other Legislature to allow the appeared infringes on a constitu- law that fundamental impose extra-constitutional judiciary) to right, right such as the to stand for tional holding in majority’s qualifications. The election, only such a law withstands strict only allows at bar not the extra-constitu- ease Marra, scrutiny narrowly if it is tai- constitutional qualifications barred tional compelling a state interest. posi- lored meet never-articulated the heretofore takes judiciary may create from whole tion that the before has this Court used “com- Never qualifications for office. cloth new review, analysis, pelling state interest” not to cloth, but to whole a constitution- create deny may not action to take The State abridgement. al right constitutional unless there fundamental necessary to showing that such denial is ease, instant has taken no In the the State Sylla “compelling state interest.” achieve deprive anyone action to of a fundamental part, ex rel. bus Point State Sowards contrary, right. constitutional To Secre- County, County Lincoln 196 W.Va. Com’n tary sought protect of State Hechler has (1996): 739, 474 constitutional Justice McGraw’s fundamental right to stand for policies protecting funda- election. public rights, preserving integri- mental electoral attempt was an in the House of There promoting political and ty, and both year very Delegates legislate re- economy prompted practical cial have striction on Justice McGraw’s fundamental assessing an election approach whether sought by right constitutional that was for mandamus relief. appropriate case is petitioner in this Had that measure case. right The fundamental and constitutional enacted, question of whether the been run for office cannot be denied designed compelling measure was to meet compelling necessary to achieve a unless presented state interest itself state interest. Court, because such a law would have abridged Justice McGraw’s clear constitu- analy- “compelling interest” But this right to run for tional office. is used where the State taken sis deprive a citizen of a funda- some action to Indeed, Leg- But the measure failed. right: mental pass legislation failure to islature’s “public poli- nail in the coffin of the beyond cavil that when a state acts another It is cy” majority. This suspect class or rationale used disadvantage of some from the reaction to this Court’s impinge upon a fundamental ex- seems clear House bill’s implicitly protected by West decision one of the failed plicitly or Constitution, scrutiny sponsors: strict will point support applied McGraw’s view has should be and not construed. As unlikely an corner: Syllabus stated in Point 3 of State ex rel. Gore, bill, Smith v. 150 W.Va. legislators who S.E.2d 791 one of the introduced (1965): candidacy, to spurred McGraw’s block running elected officials from for an office provision Where a of a constitution is in the middle of another term. in its plain interpreta- clear terms and of ridiculous,” “I think the decision is said any ordinary mind, tion to and reasonable Delegate Doyle, John D-Jefferson. it applied should be and not construed. you ought “I don’t think to be allowed to clearly plainly Constitution allows it, proper I think do but don’t it is for the “justice” judicial to run for “a office.” Supreme Court to concoct a law from Constitution, Virginia VIII, § Art. 7. making illegal.” whole cloth it exception There is no provision; to this there ruling judge- “has all the sounds simply nothing is that can interpreted be law,” Doyle made said. justice’s right limit a to run for “a go The court had to York to find New office.” precedent precisely because is there Supreme Another term on the Court of nothing in West law to either is, Appeals obviously, “a office.” permit practice, forbid or he said. Nothing portion about the relevant of Art. up Legislature itAnd should be or VIII, unclear, yet majority voters, via constitutional amend- grafted exception justices it onto who ment, court, practice, to outlaw the not the already majority’s are office. The action Doyle said. “interpretation” this case is not an of Art. Thursday’s ruling It’s also unclear ex- VIII, 7,§ expansion but an of it. Supreme tends to offices other than that of justice, legislation Court as the did. The possibly The Court could not interpret- be bill, sponsored by which was members ing phrase “a office” because leadership, passed House but the House clear, phrase is and includes the never came to a vote in the Senate. Supreme Justice of Appeals. Court of If 24, 2000, not, Daily March it did circuit Maynard Charleston Mail. like Justice myself, who ran for a term the Su- “public policy” If the of the State is so preme Appeals sitting while still as clear as to restrict Justice McGraw’s candi- judges, circuit would have been barred from dacy, Legislature presumably would have running at that interpret- time. Rather than passed Concomitantly, the measure. if Jus- provision, majority expanding tice MeGraw’s fundamental constitutional expansion foreign it. Such an prece- to all rights abridged, it must come from dential rules constitutional construction. Legislature or constitutional amend- ment, not from this is no Court. There completely ig The Court’s decision also precedent that allows to craft this Court longstanding precedent nores from West Vir “public policy” from whole cloth and to ginia requires and around the nation that abridge right.2 a fundamental constitutional every reasonable construction favor of eli provision gibility Maloney

Where the Constitution is office. In ex State rel. plain interpretation McCartney, clear in its terms and of 159 W.Va. mind, (1976), ordinary reasonable this Court stated that: “[i]n the event judge’s strong legislature "[A] belief that the Prac. & Proc. 21-22 (trial court) grave public policy resigned judgeship, has made a error of is not a Franchini legal declaring impose legislatively-mandated valid pris- reason for an act unconsti- rather than function, policy legislative tutional. Public is a on sentence on a first-time offender for whom a one, infringe jury upon leniency not a and if courts had recommended and whom the fiat, legislative by judicial placed proba- function decision had concluded should be opinion, just surely it is a violation of tion. He later was elected to the New Mexico Franchini, E., separation tice, powers." Supreme Gene Jus- Court in 1990 where he now serves as Court, "Conscience, justice. New Mexico In 1997-1998 he served as the chief Judging, Judging,” J.App. and Conscientious of his court.

606 will VI. ambiguity a constitutional amendment in fa- every reasonable construction receive Opinion The New York in Hurowitz eligibility for office.” vor of a does Provide Basis not for Thus, majority ignores this Decision if Court’s even that mandating overwhelming precedent The decision of the New York Court only abridged can run be right to for Elections, Appeals Hurowitz v. Board of legislation, this explicit Court by clear and 54, 53 N.Y.2d 443 N.Y.S.2d 426 N.E.2d provision in that the would have to determine (1981), decision, 4-3 3-page, a constru- “ambiguous.” And if somehow question was York, only ing the New is the constitution of every con- ambiguous, it then reasonable was authority for its direct cited this Court eligibility made favor of must be struction However, ruling. Hurowitz not lend does for office. any majority’s controlling legitimacy for the reading Virginia of the West Constitution. ambiguity no to con Obviously, there strue, in the of the “law as there was case State, importantly, Most in New York con judicial practice” requirement candidates law, trary Virginia right to hold West Donnahoe, Haught v. in State ex rel. a “funda public office is not considered to be (1984). if Even right,” W.Va. S.E.2d and it sim mental be restricted point able petitioner ply upon showing had been some a that the restriction conceivably In ambiguity could be used to some “rational basis.” the Matter Ro- that Scaringe, senstock N.Y.S.2d support position, Court would be N.E.2d 40 N.Y.2d 563 regard presump ignoring the law eligibility, any omits reasonable tion contrast, Virginia, by West citizens construction of the Constitution that would right a fundamental to hold constitutional justice sitting a run for “a allow explicit unless some clear and VIII, 7,§ Virginia office.” Art. West Con provision disqualifies constitutional them. stitution. E.g., Wysong, 125 State ex rel. Thomas v. (1943). Thus, petitioner sug- Significantly, the has never if the states even constitutions the two VIII, 7,§ gested a construction of Art. were identical —and not — sitting justice a to run re- allows requires Virginia that there a be clear expiration present of his election before explicit provision constitutional in order to term, is unreasonable. ballot, ineligible render for the easily distinguish- and the Indeed, New York ease considering right the fact that the on that able basis alone. to run for office is fundamental constitu- any ambiguity tional fact that purport The New York court did not eligibility, in favor must be construed providing find that constitutional clause least, is, very a construction at the a reason- judge may eligible “be to be departure able one. It would any public candidate for than office other require logic extraordinary reason and clearly explicitly barred office” accepted contortions of definitions find sitting yet whose terms have not ex- otherwise. The law mandates becoming pired from candidates identical question: provision ask If court; positions on New the same and under ambiguous, construc- is there reasonable law, law, York unlike West no such sitting tion that would allow a to run explicit provision required clear separate for a term the court? The Con- petitioner rights in Hu- restrict allows, excep- specifically stitution without Indeed, majority in Hurow- rowitz. the slim tion, “justice” to run for office.” “a ruling upon entirety itz of New based “justice,” is a and the two complex pro- McGraw extremely York’s open ju- during regarding eligibility seats the 2000 are both election visions and terms “a dicial offices. office.” only authority cited the Hurowitz VII. court, Potter, People ex rel. Jackson Judging Business of (1872), N.Y. 375 does not even mention the provision; relevant constitutional only is It is ironic majority panel that the —entire- in sue that case dealt with the of suc ly composed pragmatic of politieian/judges cession, judge resigned where an incumbent who personal have substantial experience day general before a election. More understanding and politics of the judg- over, comprehensive support chosen to affix their —have scheme construed the Hurowitz court majority opinion’s erroneous rhetoric about alia, provides, inter that vacancy “[w]hen a being “pure” courts fray” “above the occur, shall by expiration than otherwise politics. the world of term, in judge the office of ... it shall be is, course, This poppycock. rhetoric term, for a general filled at the next full Constitution, VI, put election.” New York As one Art. noted scholar it: 21(a). Therefore, York, in New unlike judges Whether are mere oracles of Virginia, judge resigns if a in order to fixed legal principles and known ques- is a accept judicial position, another person tion which most social thought scientists replace elected to him is elected for a full fifty years ago by resolved more than term, unexpired portion rather than the realist revolution. The battle need not be original Obviously, term. this creates a fought again view, here. the modern significant much more potential for disrup among scientists, well political established tion of the court’s intended of stag structure sociologists, thinkers, legal and eminent gered than comparable terms does provi judges not make policy conscious Virginia sion in the West Constitution. adjudication choices in the of eases and in power judicial exercise of the whole, re- When read as a the New York view, engage but political also decision- eligibility Constitution’s provisions are dis- making as a matter of function. “The similar to Virginia those of the West Consti- judges [political] charged are actors with stated, Simply tution. Virgi- because West special responsibilities, and their decisions nia require application law constitution in society allocate values op- such as very legal different standards than New portunity, liberty, money, protection, law, or York ruling the Hurowitz sup- does not representation in types other of decision- port rewriting this Court’s of the clear and making. political Like other decision-mak- unambiguous provision of the West ing, differential; this allocation of values is Constitution, permits to run is, that some groups individuals and are judicial office,” for “a any without restriction favored disadvantaged. and others are qualification. or policy outputs ‘justice.’” These are called Lastly, 4-3, the vote in Hurowitz was level, At appellate court judges are opinion the whole pages. less than three likely policy to confront directly in choices I justices think that minority in New developing prin- course common law correct, York were pow- when said: “As ciples interpreting and in state constitu- erful as policy arguments are the preclu- statutory provisions. tional and Even in candidacy sion of a of the nature here in- reviewing lower court deci- volved, prohibition no such can be found in procedural sions for irregularities or sub- provisions of the any Constitution or of errors, however, appellate stantive court proscription statute. against decisions serve favor some kinds of Judge of a office ‘other than others, disadvantaging interests while cial reasonably office’ cannot be read as does demonstrating thereby political nature majority, provisions nor do the of the function. Rules Judicial Conduct furnish basis interpretation of the Constitution ... judicial process out- This view of the does lawing candidacy by the instant posit fiat.” judges merely “politicians that are 53 N.Y.2d at 426 N.E.2d at 749. or policy-making robes” that is ex- By it too. a 3-2 cake engaged legislatures have her eat

actly like vote, executives; a lower court refused review over-simplifications these inde- analysis. ruling that as a member of an court even casual do not withstand get people who deny relatively pendent party, she can’t few cases Nor does major na- of the two ideological registered or are one partisan explicitly nominating pe- parties sign her many are called ture times this will relatively she warns them that upon minor and techni- titions unless to make voting own long-settled principles prohibit them from adjustments cal May. party’s primary election in emphasize But it of law. does judges and that are is extensive discretion before, court told one The week the options available to them and aware of the own, McGraw, can’t Warren he Justice choices effects alternative differential 12-year on the court while run for a term af- upon groups will have individuals serving a term. And before he’s shorter Fi- litigation before them. fected rejection of it the controversial that was course, conception po- nally, of the appointment of Gov. Cecil Underwood’s judicial decision-making litical nature of Kiss, D-Raleigh, Bob to fill Speaker House judges frequently are recognizes that able seat the court. law, interpret stat- develop common partisan, political potatoes hot These regulations, utes and to and administrative partisan, political that demand decisions. op- adjudicate disputes constitutional —all among agree can com- Probably no one us judges portunities explicitly which allow pletely rulings, all but who can with three veto, make, legitimize, or reinforce they dodged question? complain that policies. Legislature do about third- What did DuBois, Bench, pp. Phillip Ballot L. From year party Last lawmakers candidates? 28-24, University of Texas 1978. penalty signing one of did remove the journalist Tom Miller more vernacu- Or as voting nominating petitions and these then larly opined April 2000 edition republican primary, in the Democratic The Charleston Gazette: change says it didn’t section that but much— was some talk —but not There prohibits dipping by vot- still double instigated by governor during the 2000 number ers. Lawmakers also doubled the legislative possibility session about the required signatures third-party nom- Supreme justices in electing our Court good inations measure. nonpartisan election. Events recent why governor ap- a Republican And did days transparent unlikely how prove that court? For the point a Democrat to the change be. would likely curry favor that wanted reason he nothing partisan Just as there is more so des- with Democratic voters he needs county nonpartisan than of edu- board term, perately in November to win another counties, cation in the state’s 55 there rejected hope that it would be so with the nothing partisan in would be more Republican ap- then he could name government nonpartisan Supreme than a grumbling ranks. pease his own GOP Court. partisan labels people get to the final These five make correctly right now more tough issues that decisions Re- and labor than Democrat and business government can the two other branches partisanship is publican, but alive the con- often duck. Next on table is flourishing. changing And la- election pen- billion stitutional correctness $4 dynamics. bels won’t alter those Maybe governor sion fund bond issue. Legislature ask folks should these journalists agree that Both academics Employees Public Insurance solve the judging is necessary part of the business Agency funding problem. deciding political issues. art difficult (and week, I I think most guber- judging, as good that see

Last the court decided in a agree), doing is so judges honest would natorial Denise can’t Giardina losophies, respects to the issues before them. There way properly the structure democratic, nothing wrong that. system. our improperly “stretching But are also suggest utterly absurd to It is our Consti- beyond the law” well the limits law,” just deci- “apply the and do make tution. philoso- their sions that are influenced phies “prejudices” unfortu- —or —the VIII. majority chooses use. nate term A Final Note3 colleague, example, my former

For (and Workman, Margaret while she conclusion, step let me back for a mo- Court) strongly “prejudiced” to- sat on this specific legal why ment from the reasons helpless And ward children. whenever she majority opinion wrong. could, judicial choices that she made favored many people I personally why understand children. those oppose allowing sitting justice would — people thought Some Justice Work- sitting run for a full term before —to favor man sometimes “stretched the law” to Legis- unexpired his term is finished. If the probably right. children —and were conduct, prohibited might lature such I even never, my opinion, But she stretched judge uphold vote as a to such a law. And beyond permissible imposed by bounds Constitution, writing might sup- I our I were constitutional, system. our democratic port inserting such a clause. case, majority suggest, Legislature, represen- I The this But our the elected “prejudices,” people, opportuni- certainly bringing phi- their or tatives of our declined the that, interesting despite professed circumstances hearken back to the she- It is to note These "collegiality," nanigans when the author of the that occurred on this Court in concern first, second, majority opinion completed majority Judge or when the believed that Marma- made, many opinion or however drafts of this he duke Dent was not entitled to the files and share me, dissenting involving he did not share them with documents in a West official court case Virginia University, Hartigan Regents member of the Court. For some rea- unknown v. Board of son, University, after the Court voted and made a tentative 38 S.E. decision, likely Reid, and I was noted as a dissenter to Phillip, See John "An Ameri- decision, I Virginia,” was thereafter removed from the Judge: can Marmaduke Dent of West only against concept Press, 1968, loop. University This not strikes p.64. Judge New York discourse,” "collegial outright but it was an vio- Hartigan, Dent wrote in in dissent: longstanding practices lation of our internal and my only For reasons known to themselves as- procedures. knowledge inspection sociates denied me syllabus opinion after it was of their until long For as as I have been on this Court—and down, property. handed or became long for as as other Court staff here can remem- ethics, courtesy matter of This is a opinions pub- ber—drafts of are circulated before and, courtesy judge a learned has said that as to all lication members Court—dissenters taste, which there is a mere matter of about included—for review. This is done out of colle- giality, disputing, no and from which there is no is appeal point pos- to to allow other members out abolished, dueling been ev- corrections, since suggest pro- errors or and to sible ery right confreres has the to treat his opportunity vide the for all members of the Court according proper, inward he sees to his try again persuade respective to others to their experience. Not consciousness and outward points of view. After a final draft has been Court, having been admitted to their exclusive con- members of the the full circulated other over nor been made aware their sultations Court meets—dissenters included—to discuss the given written conclusions until after opinion ultimately approve filing. it for my duty public, con- I deem it to review these step process "opinion We call this final in the clusions, appear to me to be as some of them conference.” case, principles only plainly of law permitted violative of the true In was I not filed, majority justice, opinion whole to opinion and evasive, and the as a see the before it was but inconclusive, unsatisfactory Friday, opinion I as an was filed on a after had left law, although day. exposition an admira- town in the I did of sound earlier not learn that majority opinion paper purposes. I other had been until read about ble filed And, newspaper, Perhaps at 714. it in the about a week later. 49 W.Va. at 38 S.E. Judge my knowledge, majority's right in Dent’s the best of the Court had no conduct was or, least, case, "opinion was in the none to but I do not believe it conference”-— which I was invited. instant case. just year! I And ty to enact law— Constitution, ap- writing a new but am not on the method this Court was filled to ments plying one we have. so, doing In I would first hear this matter. up you how like to back share with Constitution, there is one our Under panel that decided the Kiss case legal power to who have the group people was selected. to—that what Justice say they want —if to do was a bad idea. intended McGraw First, body, I as a member of this under- import I stood the of the Kiss case. group is not the ad hoc group That when I heard the case had been shocked conjured majority,4 who have judges in the Personally, already I assist- filed. had been own up phantom restriction out ing Speaker Kiss to into what move were “right” feelings to them. about what seems be his chambers. only growp peo- The me reiterate: Let acting justices preparation selecting legal right say what ple have the who Court, carefully to fill Kiss I first read sought to do would be a bad Justice McGraw constitutional, statutory, and Su- the relevant Virginia. idea are the voters West preme I Court rules. next researched the majority unconstitutionally opinion filling Court records to determine how the right to from the voters of steals the choose open particular for a case seats the Court effect, has, majority suc- this State. past in the ... and then I had been done cessfully assisted the Hilton all took the matter to the full Court —with Head/Lineoln justices hijacking participating discuss Navigator crowd in an election five —to filling Myrtle Beaeh/pickup truck folks.5 be used the Court. from the my of concerns was that I did not One I dissent. therefore my legacy I want on this Court to be that “packed the Court” achieve end. APPENDIX I told the other of the Court that I members Larry in of Justice V. Starcher Comments proposed to fill the Court with one retired 17, 2000, argu- on March before oral Court justice sitting judge. I and one further ad- Virginia in were heard State West ments that I ask all vised the Court would retired George E. v. Honorable ex rel. Carenbauer serve, justices they whether would if asked— Hechler, Secretary State the State Ken in we had three West the time— Virginia, and the Honorable Warren West Caplan residing in Florida. Justice McGraw, R. Justice try I I next told the Court that would Appeals Virginia: West sitting judge of who select a stature had begin Legislature our to- originally Before we discussions here been a member by ap- day, compelled I to make a few com- and who had achieved feel his/her by majority opinion repeat, this Justice in did not None of the members of the were ever citizens of this State. consumption, patronizing elected to this Court home remarks Myrtle pickup and Beach vacations about trucks Court who selected 5. The Chief of this got no a real chuckle from his Hilton doubt majority panel in two of the four members of the Navigator Washington. audience in Head/Lincoln recusing himself from the instant case—before Society corporation-funded the further consideration of the instant case for The Federalist ais reason, Appen- I see what see as unauthorized government— group promotes "hands-off” Washington, D.C. in December dix—traveled of government regulating big when it comes to the speak panel sponsored on a Society’s corporations, that is. The website fea- remarks, Society. Federalist In his he character- "Top Ten Federal Government tures list Westing- Court.—Bowerv. ized a decision Suppress Speech” Efforts To Free that attacks Corp., Electric 206 W.Va. 522 S.E.2d house Act, Gambling the Child Online Protection Ad- (1999) authorizing our circuit courts to —as vertising Regulations, Regula- Bank Disclosure undeserving Virgi- giveaways to West make cash tions, Drug Rights Investigations, FDA Ad- Civil nians, spend believes would their who this vertising Labeling Regulations, Election "Myrtle “pickup trucks” or Beach "windfalls” Expenditure Regulations, Campaign and Work- http://www.fedsoc.org/medical- See vacations." http://fed.soc.org/top- place Harassment Laws. See course, monitoring.htm. Of decision in Bower our ten-freev3il.htm. thing. no such And the dissent filed authorized ease), pointment (part So, the Kiss of the issue in myself Judge I said to Watt is our judge most judge age, and who was a that was senior particu- not a he does live south (Hurricane), of Route 60 larly and he has been a Quite frankly, close friend mine. I And, years. for over 20 I found out had in mind Retired Justice Thomas that had 12 years prosecuting served as a (former Justice) McHugh sitting Judge Attorney. previously I had appointed never Arthur Recht. Judge inquired Watt sit on the Court. I you, Mind time was of the essence availability, history. the rest Kiss case as it is in So, my this matter. first say Now let me a few words about how the telephone round of calls was made panel was selected in this [Carenbauer] case. justices living retired Virginia. I never, second, I was split even for a consult- my initiated each of conversations with an ed or process by advised of the which the admonishment to do “Please not tell me justices selected, acting were or might who you any preliminary thoughts about the serve on the I simply Court. had “orders you case —I want to know if are avail- desk,” my laid on after the fact. serve, you.” able should I ask Two said I do hold ap- each of the circuit judges available; they were one said that he felt pointed panel Fox, to sit on [Judges disqualified that he was based on his current Jolliffe, high esteem, Keadle] practice. law way question no do I ability personal or quickly I asked Retired Justice Miller to qualifications to sit. But it should be noted This, accepted. my mind, sit and he then two of the circuit sitting here Judge eliminated sitting judge Recht as the today appointed by justice, were a chief who both because he and Justice Miller are from ineligible, refuses, simply either to sit and, Wheeling, time, one worked very matter to which he made the together in the same law firm —I believe. appointments. appointed by The third was So, thought I back to the discussion we had Scott, Acting Chief Justice after Chief Jus- originally when I took the matter Maynard tice recused himself. The first I Court. One I consideration heard was: knew who would filling original two ‘Why not someone from south of 60?” empty my Route was present- seats when office was That strongly comment was copy stated ed a appointment two order. Infor- appointment members of mation about third the Court when I took a had taken the “twisted trail.” matter to conference. Tuesday, my On March I received on got I out the list of our judges— circuit lengthy desk a memorandum from Chief Jus- called one who resides in the heart of our Maynard saying tice recusing that he was not coal fields he declined. Called another himself the matter based on Justice county from a southern who said had he a McGraw’s second recusal motion. Even daughter conflict his attorney because was an though the memo was dated March

who worked in the same law Arm as did filing date the Clerk’s Office was March Kiss, Speaker rejec- and I received a third day I before received it. At that tion from another judge. southern I did point I Maynard assumed Chief Justice was another review of judges, the list of still sitting on the case. About 2:00 the after- knowing that I quickly. needed to act day, noon of the same a there was rumor I then set began the matter aside and running through the halls that the Chief reviewing our next week’s docket. There going sitting Justice was not to be on the two were eases on the docket from which I case, simultaneously and almost pro- I was disqualified was my because from were copy whereby Acting vided of an order home circuit and I had been involved them appointed Judge Chief Justice Scott Keadle as a circuit prior coming on the in his I stead. called Justice Scott on the Acting Maynard Court. Chief Justice had phone and asked him what was the basis for appointed Judge Clarence Watt to sit on that action since the I latest memorandum my place. those eases had received advised me that the Chief Jus-

542 S.E.2d 433 ease, notice remaining on the was Virginia, tice of West Plaintiff STATE had intention to remain Below, that his Appellee, day in the Clerk’s filed been before. BLANKENSHIP, Danny Defendant L. me the Chief advised Scott Below, Appellant. recusing him- and was changed mind had No. 27461. copy self, I have and that should received stating his reasons. of his memorandum Appeals of Court of copy of fact, received a my office had never Virginia. requested it I memorandum. 24, 2000. Submitted Oct. provided, in less Clerk’s copy was an later another half hour than 1, 2000. Decided Dec. from the office. provided Chief Justice’s have My panel for this that we concern justices sitting now acting who are

two appointed who either

this Court were Justice, or one who

ineligible Chief refuses judge or I do not believe a in the matter.

sit simply to sit a case. We can refuse eligible and have either

are duty, perform our or we are

obligation should no ac-

ineligible, and take therefore whatsoever.

tion in the case frankly, personally very

Quite I would like sitting on this I see

much not to case. way. I good

myself as a loser either is a candidate the same office who

friend colleagues my now two

for which against my colleagues, If I rule

candidates. against my I If rule

it’s uncomfortable. uncomfortable, I equally will be but

friend it to do or the other.

will have one extent, is, great

This case say want to or not.

case—whether we so

And, being to fill this Court used “squeaky very than clean” well

less about fairness.

magnify skepticism

Therefore, say closing, simply I want to Kiss matter thing I in the same said you presented to the Court. If it was

when Court, you will

agree with the decision of this brilliant,

likely as herald the decision scholar- work; you you disagree, but if will view

ly political shenanigans. simply more

Case Details

Case Name: State Ex Rel. Carenbauer v. Hechler

Court Name: West Virginia Supreme Court

Date Published: Dec 14, 2000

Citation: 542 S.E.2d 405

Docket Number: 27458

Court Abbreviation: W. Va.