State Ex Rel. Rist v. Underwood

524 S.E.2d rel. ex John of West

STATE Petitioner, RIST, III,

F.

v. UNDERWOOD, Gov- H. Cecil

Honorable Virginia, of West the State

ernor of Kiss, Respondents. Robert S. A. ex rel. Richard

State of West Carper, Rudolph Di

Robb, L. Kent W. Forman, Roger Marvin W.

trapano, D. Anthony Majestro,

Masters, American J. Virginia, of West Liberties Union

Civil Pettit, Gaydos, Mark E. Carl

Thomas W. Frankovitch, Simon, Michael G.

N. Hill, Peterson, Har R. Edison C.

James Deitzler, Bee,

ry Michael C. Nor G. Petitioners, Steenstra, Jr.,

man Underwood, Governor Cecil H.

Honorable Virginia, and

of the State of West Kiss, Respondents.

Robert S.

Nos. 26654. Appeals Virginia. 20, 1999.

Submitted Oct. Nov.

Decided

Concurring Opinion of Chief Justice Dec.

Starcher ' Rist, III, Esquire,

John F. Pro Se. Ramey, Esquire, Piz- Ancil G. Michelle E. iak, Johnson, Charleston, Esquire, Steptoe & Virginia, Attorneys for West Governor Un- derwood. Heywood, Esquire,

Thomas A. Bowles Love, Charleston, Rice McDavid Graff & Attorney Virginia, West for Robert Kiss. S. McGinley, Esquire, DiTrapano, Sean P. DiPiero, Charleston, Virginia Barrett & West Simmons, Esquire, and Lonnie Law C. Office Jackson, Charleston, Rodney of P. West Vir- ginia, Attorneys for Petitioners. Walker, Charleston, Esquire, G. Jennifer Virginia, Attorney for Amicus Curiae Holmes, Darrell E. Clerk of the Senate. Mowery, Esquire, M.E. “Mike” Charles- ton, Virginia, Attorney for Amicus Cu- Gregory Gray, riae M. Clerk of the House of Delegates.

McGRAW, Justice: This case raises the issue of whether the VI, Emoluments Clause contained in Article Virginia § pro- 15 of the West Constitution ap- the Governor of hibits this State from pointing Speaker the current of the West Delegates House of as a Justice Court, where, during Speaker’s cur- rent term of enacted a pay respect increase with to such issue, office. The Emoluments Clause at § provides pertinent part: Article delegate, during No senator or the term elected, for which he shall have been shall be elected or civil office State, profit under this which has been created, or the which emoluments of term, during except been increased peo- to be filled offices ple. specifically

We are asked to determine the meaning exception for “offices to be people,” Speaker whether Kiss as Justice of this would by election filled effective, Speaker Speaker and that the current become Kiss language renders serve, begin Sep- would at 12:00 a.m. on the office to which the eligible to assume 23,1999. tember appointed him. Governor Any examination of our Constitution—-the Speaker Kiss was member of the West proceed with organic law of our State —must Delegates during House of the 1999 im- and concern for the future utmost care session, legislátive During session.1 pact ripples of our created decision. Legislature passed H.B. inter alia question interpretation important of this amended W. Va.Code 51-l-10a increas- propagate far into the future of our will salary Justices of this Court jurisprudence. commencing, we note Before $85,000 $95,000; July effective Thomas Jefferson: the counsel of 1999. See 1999W. Va. Acts ch. 8. Petitioners every question of [of On construction rely upon asserting Speak- in this event that carry let us ourselves back to Constitution] constitutionally disqualified er Kiss is from the time when the Constitution was serving on this Court. spirit in adopted, recollect the manifested publicly After Governor Underwood an- debates, trying and instead of what Speaker appointment nounced the Kiss as text, meaning may squeezed out of the Court, prior filing a Justice of this to the it, against prob- or intended conform matter, petitions ceremony this passed. it was able one which 20,1999 September was scheduled for Wil- Letter from Thomas Jefferson Justice purpose administering the oath of office. Johnson, 12, 1823, in Thomas liam June Jef- subject Once the issue that is the of this case Comm, (Va. on Issues Constitutional ferson however, raised, publicly Speaker Kiss 1962). on Constitutional Government With swearing-in ceremony. canceled the star, our watch we examine this wisdom as issue, provision at in the context of our 23, 1999, Rist, III, September F. On John history, and in the context of constitutional capacity taxpayer in his aas citizen and history of our State. Virginia, the State of West the instant filed petition prohibi- for writ of mandamus and/or

I. petition, Speak- tion. his Rist asserts ineligible unexpired er Kiss is to serve the BACKGROUND resignation term created Justice disputed. The facts this case are not On Workman, upon § Article 15 of the based 31, 1999, Margaret August the Honorable L. Later, Sep- Constitution. Court, resigned as a Justice of this Workman 29,' 1999, petition tember a second was filed vacancy thereby creating a that can be filled others, Robb, similarly A. Richard only pursuant by gubernatorial appointment asserting Speaker Kiss constitutional- VIII, § 7 to Article of the West ly disqualified serving as a Justice on 9,1999, respon- September Constitution. On VI, § pursuant 15. Pe- this Court to Article Underwood, dent, H. the Honorable Cecil request issue an titioners this Court Virginia, of West an- Governor ap- directing order Governor Underwood appoint the Honor- nounced his decision to constitutionally eligible person to fill point a Kiss, currently Speaker of the able Robert S. unexpired term of Justice Workman. Delegates, to fill House Justice Workman’s term, following filing petitions After the which ends unexpired 22, matter, a rule to show cause general September the Court issued election. On that, principal determined because the Governor notified the Sec- Underwood eligibility Speaker to oecu- retary appointment issue —the Kiss of State qualified, irrespective elec- Speaker present two-year of ’the results of such term as a mem- Kiss’ Delegates expire (1980); will after ber of the House of the next tion as ex W. 4-1-8 see State tion. Va.Code general posi- hold the Willis, election. He will 174 W.Va. 323 S.E.2d rel. McGrow v. presiding Dele- officer of the House of (1984). however, gates, a successor is elected and until appointive responsibilities his con- position Supreme Court Justice— ercise py the requirement proceedings, the two formance with the constitutional in both was identical n VI, § pur- 15. For the cases be consolidated resolved set forth Article should case, signifi- jointly. poses of the instant there is no ap- cant distinction to be drawn between an II. pointment unreasonably delayed, and that is that contravenes constitu- MANDAMUS FOR STANDARD requirements. Consequently, in line tional seek to invoke Petitioners Moore, with our conclusion mandamus will jurisdiction2 by way original Court’s question gu- lie to resolve the of whether extraordinary remedy of mandamus. Tradi constitutionally qual- appointee bernatorial “lim tionally, have confined mandamus to we ified to assume the office to which he or she truly exceptional ited and circumstances.” appointed. has been Marockie, Bldg. Auth. v. State ex rel. School Although 424, 432, petitioner Robb seeks to invoke 481 S.E.2d 198 W.Va. omitted). (1996) (citations jurisdiction, never- this Court’s mandamus he Accord State ex Dial, juris- argues apply theless that we should Bldg. rel. Charleston Comm’n 185, 191, prudential ripeness pass- doctrine of to avoid 479 S.E.2d presented. ripeness on the issue Robb’s three-part a now-familiar applies This Court argument appears grounded upon the to be whether mandamus relief test determine Speaker purports fact Kiss to still be appropriate: thus, Delegates, member the House of A will not issue writ of mandamus unless according petitioner’s argument, the issue (1) legaí a clear three elements coexist — eligibility has not matured into a contro- right petitioner sought; in the to the relief adjudication versy suitable for our because (2) respondent legal duty part on the appointee the Governor’s has not assumed petitioner thing to do the which the seeks office. (3) compel; and of another absence remedy. adequate petitioner concur with un Robb’s We 3, Syl. pt. City ex rel. Kucera v. State of derlying assumption may that one not hold 538, Wheeling, 153 W.Va. 170 S.E.2d 367 legislative at the offices same (1969). time. This is a fundamental tenet of the Syllabus point 3 of ex rel. State separation powers doctrine contained Moore, 934, Brotherton v. 159 W.Va. 230 our Constitution: (1976), the held that S.E.2d 638 Court person holding any No other lucrative “[mjandamus compel governor lies to State, employment office or under this power appointment under exercise his Sec States, any foreign government; or United tion 9 of Article VII of the Constitution of Congress; person no member of and no governor when the declines or sheriff, constable, any who is or clerk of power fails to exercise his for unreason record, eligible court of shall be to a seat period able of time.” The in Moore Court legislature. in the “[wjhile noted that mandamus cannot be Const, 6, 13; compel particular § used to the choice of W. Va. art. see also W. Va. Const, individual, V, § compel Additionally, it can used to the exer art. 1. no Justice may any appointive power.” cise of the 159 W.Va. at of this Court hold other office: “No 941, justice, seeking judge magistrate any than 230 S.E.2d at 642. Rather or hold shall individual, particular accept any appointment other or of a however, trust, petitioners effectively request public govern- under this or other Const, compel § Court to to ex- art. Governor Underwood ment.” W. Va. him”), upon statutory quired original jurisdic- Rist rather than the Petitioner relies manda- upon remedy provided by passing mus W. Va.Code 3-1-45 tion of this Court. Without wheth- ("A supreme remedy appropriate present lie er such in the mandamus shall context, compel appeals court of ... officer herein we treat Rist's claim for relief under the perform original jurisdiction. legally any duty to do and herein re- Court’s (1976). that, Similarly we have where 223 S.E.2d in other cases have found We essentially advisory opinions controversy was rendered of a prompt resolution necessary permit it was bond operation of our when necessary the efficient for marketing counsel to authorize heard arguments government, authorities. ex rel. bonds State Court, outcome of although the ultimate City Coghill, v. Charleston may remain inchoate. given question (1973). The need for S.E.2d question of whether considering the When certainty of enor- before investment a third Moore could seek former Governor human effort and mous amounts of before in the elections term of office money of vast sums of has investment argued that mandamus counsel Governor’s reappraisal to an ad hoc led us remedy. Although the improper was an requirement law of a true adver- common argument differed nature of that technical controversy” sary “case or as a condition matter, recognized we from the instant precedent to court review. act, obligation, to even power, and Court’s Alsop McCartney, ex rel. 159 W.Va. theoretically possible that though it still 829, 834-35, 228 S.E.2d the election and Moore would lose Governor question eligibility for moot the of his render today, it is clear In the case before us term: a third appointed Speaker has Governor recognized (if some eligible) vacancy [T]his on this Kiss to fill available proceeding must be Court, form person stands in the and that no other parties may challenge interested position appointee. current Be same as the primary general advance of importance of this issue —to this cause eligibility questionable candidates Court, public at Legislature, and the that elections will be- order to assure present question ripe large consider the —we mockery. come a adjudication. McCartney, 159 Maloney v. ex rel 607, 513, 527, 616 223 S.E.2d III. ease: recognized a later We DISCUSSION occa-

Experience dictates that there are concerning can be no debate undertake There which courts must sions on effect, reach, prohibition of the basic advisory opin- the something in the nature of 15, provides § as it involving in Article in cases contained ions. We have done this against a straightforward and absolute bar expense of the attendant elections because Legislature obtaining of the deleterious effect member upon campaigns and the created, or the emolu that was government which un- office representative increased, during the rel. which were certainty in causes. State ex ments of elections Maloney v. McCartney, ^[159] W. Va. [513], legislator’s term of office.3 What is at issue salary period election to portent things for the of this appears of raise in what to be a veiled legislature"). the alludes in his Governor Underwood to come. suggested by Under- Governor Both courses Legislature's negat possibility the brief to clearly run afoul of the Emoluments wood would by re of the Emoluments Clause the effect Clause, permitting provision there is no since increase, underlying judicial pay pealing by operation later of the rule to annul reducing compensation enacting legislation decreasing As one the emoluments of office. salary Speaker in effect immediate Kiss in the context of Con- has noted commentator ly prior recent increase. Other state to the most circumventing gressional legislation aimed at rejected See Vreeland courts have such devices. Clause, cannot "[a] statute federal Emoluments 292, 297, 825, 827 Byrne, 370 A.2d 72 N.J. history; the fact that the repeal it cannot undue (1977) legislation (striking special mea down as had been "increased” of the office emoluments during pay providing increase for associate sure [legislator's office]....” Mi- term legislature justice apply would not to member Paulsen, Lloyd Is Bentsen Unconsti- chael Stokes tutional?, position); State ex rel. (1994) to such (emphasis 46 Stan. L.Rev. 907 cf. 901, 465, 470, Gay, 28 (contending Fla. So.2d original) Fraser v. that the Treasury Secretary (holding appointee avoid violated "cannot Senator Bentsen as Clause); F. O’Con- remitting see also John prohibition by Emoluments the constitutional 1885).4 meaning Shephard to be ascribed to wording this case is of the 1794 regarding provision exception “offices to be filled was taken almost verbatim from I, § by by people.” Speaker Article cl. Kiss and the United States Constitution,5 argue that lan- which was submitted for ratifi- Governor Underwood by just years cation guage broadly excepts states seven before. offices that are contending elective in nature —in effect prohibition The emoluments given was applies the Emoluments Clause never to an adoption constitutional status with the subject office that will be election Virginia Significant Constitution of 1830.6 hand, at some future date. On the other present purposes was the insertion petitioners exception applies assert provision an exception for “offices as only to the more narrow circumstance of may people.” be filled elections is, fact, legislator where a elected the The records of constitutional convention particular begin to a office. We however, light, shed no on the intended analysis with a detailed examination of the meaning language, provision of this as the history provision of the constitutional at is- adopted without amendment or debate. sue, turn to the more and then difficult task Proceedings Virginia See and Debates ascertaining meaning exception 40, 460-61, State Convention 1829-1830 clause. (Richmond, 1830). Shepherd 804-5 S. & Co. The Framers of the 1830 Constitution A. would have understood the Emoluments primarily imposing Clause as a check on Histoi'y and Context Emoluments legislative corruption. contemporary A in- Virginia Clause terpretation Story7 offered Justice indi- Virginia purpose cated that behind the federal 1. The Emoluments Clause in provision away, possi- was “to take far as Virginia. Antebellum ble, any improper bias in the vote of the VI, § representative, The forerunner to Article 15 of the and to secure to the constitu- present Virginia Constitution was en- pledge ents some solemn of this disinterest- acted Assembly Joseph Story, General edness.” Commentaries on 1794. 1794 ch. Va. Acts Statutes at the Constitution the United States (Richmond, Large Hilliard, Co., (Cambridge, Gray Samuel at 330-31 & nor, States, created, The Emoluments Clause: An Anti-Federalist United which shall have been Constitution, Intruder in a Federalist 24 Hofstra or the Emoluments whereof shall have been during L.Rev. 89 The former dean of the West increased such time .... Virginia College astutely of Law observed in tes- III, timony 6. Article Congress before Constitution of that such rescission mea- provided: manipulation,” sures "smack[] of clever provision subject makes the "the of deft maneu- assembly members of the shall receive Compensation ver.” To Reduce the the of Office compensation for their services a to be ascer- Attorney Hearings General: on S. 2673 of Before by paid public tained law and out of the trea- Judiciary, Cong., the Comm. On the 93d 1st Sess. sury; increasing compensation but no law the (1974) (statement of Dean Willard D. Loren- of the members shall take until effect the end son). of the next annual session after such law shall have been enacted. And no senator or dele- provided: 4. This 1794 enactment shall, gate during the term for which he shall delegate, during That no senator or shall the elected, appointed any have been be civil elected, time for he which was be commonwealth, profit office of under the any authority civil office under the of the Com- created, which shall have been or the emolu- monwealth, created, which shall have been increased, ments of which shall have been dur- the emoluments whereof shall have been in- term, except may such such offices as be during creased or decreased such time. by by people. filled elections 5. The Emoluments Clause of the United States Massachusetts, Joseph Story, 7. Justice of served provides Constitution as follows: on the United States Court from 1812 shall, Madison, Representative during Appointed by No Senator or Story to 1845. President elected, appoint- the Time for youngest person, age appoint- which he was be was the ever any Authority ed to civil Office under ed Court. (James 1833).8 protecting the The Federalist No. 55 at 345 ed. addition Madi- 1st son).9 Indeed, self-serving George public fisc collusive Mason even went so by legislators, the Emoluments conduct provision provides far as to state that recognized playing a cru- Clause was also “the on corner-stone which our liberties de- powers. maintaining separation cial of role pend.” 1 The Records the Federal Con- succinctly (remarks Alexander Hamilton observed George vention 1787 381 Ma- against “guards the Emoluments Clause son) (Max 1911). ed., Farrand upon legis- danger of executive influence The Emoluments Clause retained in body.” No. 76 at 459 lative The Federalist although Constitution of (Alexander Hamilton) (Clinton ed., Rossiter exception language was truncated to “of- 1961). pro- likewise noted that this Madison by people.”10 fices filled elections potential vision was intended to limit the suggests While this alteration an intent appointive power to the executive its oising clarify only election was the corrupt Congress: abating impediment imposed by means of danger apprehended from the Is there a Clause, proceedings Emoluments government? But other branches the constitutional convention do not indicate where are the means to be found any an intent changes to work substantive on President, Senate, .... or the or both? provision. Legis- The Committee on the means, then, only pos- can Department, charged lative which was sess, dispensation appoint- will be drafting dealing the article of the constitution it her suspicion ments. Is here rests legislative government, with the branch of charge. we are told that this Sometimes reported provision to the Committee of corruption be fund of is to exhausted recommending any the Whole without altera- subduing the President in the virtue of the language employed tions to the in the 1830 Now, fidelity of the other Senate. Likewise, instrument. no amendments to But, House is to be the victim. fortu- the section were recommended the Com- nately, provided a still the Constitution Whole, mittee of the nor was there de- safeguard. further The members of the concerning any proposed changes. bate See Congress ineligible are rendered Journal, created, Proceedings Acts and the Gener- may civil or of offices increased, Virginia, al As- may Convention which the emoluments Richmond, Monday, during No sembled at the Four- their term of election. offices October, existing 'Day Eighteen Hundred therefore can be dealt out to the teenth (Richmond, Culley Fifty' vacant 330-357 W. members but such as become 1850).11 by ordinary casualties.... assembly Story say: shall receive

8. Justice went on to The members compensation to be ascer- legisla- for their services easy, by any It is not constitutional or law, enactments, paid many tained out of the trea- all even tive to shut out increasing compensation corrupt sury; undue or influence but no act avenues of great upon the human mind. The securities shall take effect until after the end of the term society which it must forever rest for on of dele- for which the members of the house —those government responsibility in a free gates voting no thereon were elected. And —are elections, personal shall, people through charac- delegate during the term for senator purity principle. elected, Where these are ter and been be which he shall have wanting any never be solid confi- there can profit any common- to wealth, civil office of under the duty. any deep created, dence or sense of Where these or the which shall have been they guaranty against increased, exist become a sufficient emoluments during which have been influences, gross all sinister as well as all of- term, except filled elec- offices fenses. people. tions added). Stoiy, (emphasis supra, § at 332 the Constitution 11.The fact that the Framers of drafting participated 9. James Madison in the substantively of 1851 did not intend to alter the Clause, the federal Emoluments and was also n provision necessarily sup- question does not produced leading figure in the convention that exception port that was meant to the notion Virginia the 1830 Constitution. broadly exempt In- all offices elective in nature. deed, IV, Virginia of this later con- the fact that the drafters 10. Article 10 of the Constitution significant provided: made deletions without stitution very veals “undemocratic” results Virginia During Reconstruction. concealed 2. West popular democracy. An beneath a veneer of preceding Clause of Vir- The Emoluments representative elected first Constitu- incorporated ginia was not into constitutions Convention, Hagar tional Mr. of Boone constitution, Virginia’s which was first West County, upon unsatisfactory remarked Rather, it ratified in 1863. was inserted way delegates in which the were selected: only present its form—with minor modifica- County, “If ... which Cabell borders language employed in earlier tions to the River, military the Ohio had to have a the Constitution of constitutions —in there; if force to hold an election Boone 1872. military had to have a force to hold an Constitution, The architects of our 1872 points election at two of the usual [out provision, restored this were no doubt eight]; up if a detachment went and ... era.12 The influenced the Reconstruction got into a corner of and held an Raleigh creation, history of contentious the State’s there, difficulty what War, well forged in the crucible of the Civil represented!” counties known; fighting the stories of brother broth- er, MeGrégor, Disruption apart, James C. Vir- of counties and communities torn (1922).13 ginia the same could to all. must also re- 268-269 Much are familiar What adoption be said of the eventual of the first addressing called in the issue before the case, people, of this impact Constitution the instant is the adopted by suspiciously large which “was prevailing conditions at that time had on 20,442 majority shaping present to 440.” Richard Orr of our Constitution. Curry, Virginia Background for A hallmark of the -era was Reconstruction History the Civil War and Reconstruction pre- institutions failure of democratic Virginia: Analytical Era in An Com- peace, serve the and a concomitant weaken- (1959) mentary, History 20 W. Va. people’s faith in those institutions. Greenbrier, (noting Logan, McDowell, early history The decisive events —the Mercer, Monroe, Raleigh, Wyoming Wheeling May First Convention of reported never Counties returns for or Wheeling Second Convention of June Constitution). against the first separation the referendum on our from Vir- Unionists, ginia, delegates firmly and the selection of Ardent in control of the created, legislature they First Constitutional Convention West Vir- of the new state had ginia truly failed to draw a democratic wished to ensure that former rebels were —all accounting people. punished kept and full of the will of the their crimes and far from ship Close examination of of those votes re- the rudder of the of state. This senti- substantively change pro- they prohibit recorded intent can well surmise that intended to offices, certainly suggesting "trafficking” vision can as construed both elective then-existing acceptance exception appointive, clause had suffered requiring popular during regime. election. See 1 A.E. Dick Howard, Commentaries on Constitution of (noting upon Other historians have commented this. Emoluments "except[ed] Rice and Brown note that Webster and Clause of 1830 Monroe Constitution offices election,” delegates by popular only Counties sent no at all to the First filled and “saw minor Convention, ”). Virginia] Constitutional changes and war-time distur- [in until 1902.... Calhoun, Clay, bances interfered with the vote in McDowell, Mercer, Nicholas, Fayette, Logan, Indeed, expe- some states were moved Wyoming Stephen Counties. Otis K. Rice & altogether riences of Reconstruction to eliminate Brown, Virginia, History W. A 140-41 2d exception elections. As the Flori- instance, ed. "For Dr. D.W. Gibson of da Court recounted in State ex rel. West County [to Pocahontas was elected the conven- 114, (Fla.1954): Gray, 74 v. So.2d 117 by refugees Upshur tion] at Buckhannon in amendment], Furthermore, County.” Wyoming that time [A]t [of were Id. at 141. emerging just period Fayette reconstruction Counties never even held elections to States; following they delegates, represented by the War Between the were select delegates but instead Rule; Carpetbag bearing bore the scars of still who came to the convention political petitions signed by memories of the abuses suffered there- residents of their counties. minds; McGregor, supra, under were still fresh in and we their

267 provision my itself in the form of the judgment, ment manifested The is not n retrospective post nor “loyalty ex No oath” or oath” that became one “test facto. having a natural right or inalienable to an mandatory occupations.14 for a host of office, it that all follows who seek must it designed power, oath was those in accept the office with all the restrictions Union, prevent any loyal to the ex-Confed- imposed by and conditions law. participating government. erate from Stratton, parte This was made clear in the remarks of one Ex William 1 W.Va. (1866).15 Fergueson, 306-7 County, James H. of Cabell required author of the bill that the oath: “I demanded, Legislature and this Court any do not want the rebels to have share in Ballard, upheld, jurors, Lively oaths for v. 2 government. If do I shall be defeated (1868); lawyers, Hunter, parte W.Va. 496 Ex Gerofsky, five hundred votes.” Milton (1867); Quarrier, 2 122 parte W.Va. Ex 4 Virginia, (1870); Reconstruction in West 6 W. Va. parte W.Va. 210 Ex Charles James History Faulkner, (1866); 302 [hereinafter Recon- 269 litigants W.Va. or Ambler, (quoting potential litigants, Higginbotham /] struction Charles H. v. Hasel den, (1868); 3 W.Va. 17 and even Virginia, in West 14 Yale voters Disfranchisement elections, (1905)) (internal Good, Randolph v. quotation Rev. 38 W.Va. marks (1869). omitted). way Another in which the oath was used to This examined the “test oath” punishment ex-Confederates,, inflict on was context of an election for circuit clerk. Wil- by denying justice Many them in the courts. Stratton, Confederate, liam a former was sued, ex-confederates were had their land Logán County. elected Circuit Clerk of taken, or money suffered other loses or oath, When he refused to take the the circuit property, not, and were more often than judge qualify him would not for office. He plaintiffs, denied redress. Because the law- requested that this Court issue a writ of yers, every jury, member of the and the mandamus on the basis that the oath was judge all had to take “test oath” before writ, unconstitutional. This Court denied the trial, presumably “loyal” and were all explaining: ¡for result, “disloyal” unfavorable outcomes legislature possessing legisla- Our all the See, day. defendants were order of the State, power tive it follows that it Pitzer, e.g., Cunningham competent pass pre- for it to act (1867) (jury against found ex-Cdnfederate. de- scribing question.... the test oath in aiding army fendant for the Confederate wheat); plaintiffs the confiscation of the Ca- 14. The oath read as follows: constitution of the United States and the con- Virginia; stitution of the State of West and I X, (name affiant) solemnly A.B. do swear freely any take this oath without mental reser- voluntarily I have never borne arms purpose vation or of evasion. States, against reorganized gov- the United 1865 W. Va. Acts ch. 56. Virginia, Virgi- ernment of or the State of West nia; aid, given voluntarily that I have never represen- 15. The unseated a of 1869 persons engaged comfort or assistance to (a Wyoming County, tative of John McCraw for- States, hostility against armed the United Court), bearer of a member of this on the basis of reorganized government Virginia, or the delegate the oath. The voters of the district sixth Virginia; any State of West that I have not at Although chose McCraw the election of exercised, sought, accepted, attempted time or 19, 1869, January the House Journal of indicates to exercise office or whatev- necessary that McCraw had taken the oaths and er, any authority pretended authority, under qualified Delegate Smith of Kanawha States, hostile or inimical to the United County, January introduced the 1869/ reorganized government Virginia, or the Roach, petition sought of one William Virginia; State of West that I have not at 2, 1869, February removal. On McCraw's yielded voluntary support any gov- McCraw, time resolv- House voted to remove ing pretended government, power McCraw, ernment or sitting that "John member from States, district, constitution within the United hostile or delegate the sixth is not entitled to his thereto, inimical or hostile or inimical to the seat Journal the House in this House....” Sess., reorganized government Virginia, Delegates Virginia, or the 7th Virginia; support State of West that I will 46-47

268 we, (1870) today, Martin, minds.17 And so (pro- most their 4 138 W.Va. perton v. history consider the in mind this as we defen- bear sued ex-Confederate plaintiff Union capture question before us. imprisonment for his for false dant during the war and won captivity $600 White, 4 170 v. W.Va. damages); French B. case, (1870) (another imprisonment sim- false Exception the Election Construction of apparent It from these Caperton). is ilar to principle fundamental con “The Legislature used the “test cases that is that effect must be stitutional construction portion a substantial oath” to disenfranchise Framers of given the intent of the to the electorate.16 organic who ratified and of law prevailed until the elections situation This adopted ex rel. Brotherton v. it.” State (in- 1870, the Democrats where of 1869 100, 108, Blankenship, 207 S.E.2d 157 W.Va. ex-confederates) gained sub- many cluding 421, (1973); 427 see also State ex rel. Moun Then, in Legislature. power in the stantial Park, Polan, 276, Inc. v. 190 W.Va. taineer 30,220 1871, Virginians voted August of (1993). 279, 308, Accordingly, 438 S.E.2d 311 27,658 conven- of a constitutional in favor analysis begins with the our in this case at Charles- assembled tion. The convention Randolph language Article 15. See 1870, capital by ton, which had become Adams, 9, County Bd. v. 196 W.Va. of Educ. delegates only Republican with twelve Polan, 150, (1995); 15, 156 190 467 S.E.2d (dubbed apostles”), the “twelve 283, (stressing at 315 W.Va. at 438 S.E.2d Wiley, T. Senator Waitman United States involving every applica case “[a]s only holdover from the Morgantown, as the pro interpretation of a constitutional tion or See Milton First Constitutional Convention. vision, analysis language begin must with the Virginia, Gerofsky, in West Reconstruction itself’). provision constitutional 5, History [hereinafter 13-15 7 W. Va. provision of a is clear constitution “Where

Reconstruction II ]. plain interpretation in its terms and mind, ordinary that the and reasonable it should be of this upshot discussion 3, Constitution, Syl. pt. and not construed.” State applied men who drafted the Gore, ex rel. Smith v. the Emoluments Clause who reinserted (1965); constitutions, Syl. pt. see also previous Virginia S.E.2d 791 contained Maloney McCartney, 159 W.Va. background and lived in these ex rel. came from this (1976). Importantly, times; days at the events of.those were fresh S.E.2d stage interpretation, are not they forged present “[c]ourts memories when their expediencies the wisdom or Preventing the abuses and concerned with Constitution. duty provisions, and the self-dealing “carpetbaggers” of the of constitutional judiciary merely carry provi- out the period fore- Reconstruction must have been charged approving party; interested cash 16. For more discussion of the disenfranchise- sympathized those citizens who pardon applications ment suffered See Re- for ex-Confederates. I, Confederacy, see Reconstruction su- II, with the supra, at 13-15. construction pra, at 349-352. sought When a former Confederate officer sought example of the evil 17. As impeachment in the House of Dele- Harrison’s Judge prevent, story one examine the gates February of or staff of members of what was then the 7th Nathaniel Harrison him, ejected cham- beat him from the House Greenbrier, Circuit, encompassed Judicial ber, request Harrison’s and called his formal Nicholas, Monroe, and Pocahontas Counties—an impeachment paper deemed "a which was substantially pro-Confederate dur- area that was attempt publicly a malicious slan- this House abuses, Among Judge ing the war. various Har- Judges of this State.” der one of the Circuit office, ejected from rison all former Confederates Delegates the State Journal the House though they popularly had been elected in even Sess., Virginia, at- 4th Others 1865; enforced the "test oath” elections'of tempted he to remove Harrison from but relentlessly; demanded that and "forfeiture” acts managed position until hold on to his owned; paper legal placed all ads be in a that he impeach- adopted articles of of 1870 lawyer, suggested parties particular use a II, supra, against him. Reconstruction ment percentage whom Harrison received fees; he, sat in in which himself was an 13-15. cases

269 108, 157 plain language Blankenship, stated in the intent.” W.Va. at 207 sions of the 3, course, Syl. pt. Casey object ex rel. “[t]he constitution.” State S.E.2d at Of 298, construction, Pauley, v. 158 W.Va. 210 S.E.2d 649 to applied as written constitu- (1974). tions, give effect to the is intent Syl. 3, adopting pt. in it.” Diamond case, any unequiv- In we fail to discern this 543, Corp., Parkersburg-Aetna v. 146 W.Va. wording excep- from the of the meaning ocal (1961). 122 436 S.E.2d persons can easi- language. tion Reasonable ly disagree scope phrase, to the of the Respondents . assert because peo- filled “offices to be election an Emoluments Clause restricts individual’s ple.” recognize are not the first court to We office, right public to hold it con must be ambiguity provision: in such The eligibility. in favor of support strued recognized the long ago' Court of California argument, respondents this cite to ex State in ambiguity language inherent similar con- Maloney McCartney, supra, rel. v. where 1849, tained in the California Constitution of 3, syllabus point part, in in .stated excep- stating that inclusion of such an ambiguity the event “[i]n constitu tion tional will receive every amendment reason injecting had the effect of doubt and uncer- eligibility able in construction favor thereby tainty placed upon limitation as to _” According office to Governor Under operation language pre- which wood, “[o]nly provision where a constitutional exception ceded it. Did the mean that the clearly unambiguously precludes gu language preceding apply it should not appointment may appoint bernatorial such appointment legislator of a who should judiciary.”18 ment be invalidated We by; run elected to another of- and be elective reject present in the standard context. during fice the term for he which had been general member of senate or elected a strong public policy While “a ex exception assembly? Or did the mean that office,” eligibility ists in favor prohibition apply should not Comm’n, O’Brien, Oceanographic v. 74 legislator of a to an elective 914, 707, (1968), 904, 447 P.2d 712 Wash.2d is, normally office filled competing this case faced we.are people? maintaining consideration constitutional Qualifications Carter v. Commission ly-mandated execu separation between the Appointments, Judicial 14 Cal.2d 182- legislative government. tive branches of 140, 142 (1939). 93 P.2d Again, the Emoluments Clause is aimed “Questions just eliminating self-dealing part of constitutional con on the rather, governed fore legislators; struction the main it is also intended to possibility general applied statutory same rules stall even the remotest of execu-. con Syl. legislature. pt. struction.” tive influence over the Winkler Auth., part 434 Clause therefore Bldg. School Emoluments system separation of exception rigorous S.E.2d 420 Because the of interbranch VI, powers, ancillary § ambiguous, clause “or fundamental di of Article V, § dinary principles employed statutory rective set forth Article of the West con applied ascertain Constitution.19 struction must powers Speaker argues properly similarly shall be- Kiss that "unless neither exercise exception ques- others; this Court concludes that the longing to either of the nor shall exempt unambiguously of- tion fails to elective person powers one exercise the more than general prohibition of fices from the the Emol- time, justices except of them at the same Clause, jurisprudential uments fundamental peace eligible legislature. shall be ruling mandate a considerations favor of closely is therefore re- The Emoluments Clause eligibility viability appointment and the § Article of the West lated to appointee office." Constitution, prohibits a member of "holding V, other lucrative provides: 19. Article State, employment under this the Unit- office or judicial depart- legislative, executive States, distinct, government....” separate any foreign ed ments shall so that 1, syllabus Supreme point in in of Alabama concluded As we stated Court Manchin, Justices, 38, 38-39, Opinion Barker 167 in Ala. State ex rel. v. the 279 part, of of 155, (1981), 105, 106-107 (1965), 622 the doc 181 that 279 S.E.2d So.2d ended, powers part separation of “is of the trine of just the the section before word [i]f and, such, our as it law of State fundamental Legislature “except,” no member of the closely fol strictly be construed and must term, appointed, during his could ever be Dailey, re See In 195 W.Va. lowed.” also by office created the of 601, (1995) 333, 330, (stating 465 S.E.2d words, he the which was a member. But of this Court to a “[t]he commitment “except by offices as be filled separation application of the doctrine of strict by people” election the must have some unwavering.”); been powers [has] of ... meaning. only reasonable conclusion Hechler, ex rel. v. 195 W.Va. Meadows excepted is that from the rule of Section 59 (“The 586, 11, 14, 462 S.E.2d appointment “may an to an office which is expressly doctrine stat separation powers people.” by by be filled an election the principle a our is core ed in constitution added.) Likewise, (Emphasis in Carter v. system government....”). our Qualifications on Commission Judicial 179, Appointments, 14 Cal.2d 93 P.2d 140 Robb correct Petitioner in (1939), the California con- in pointing out that we are concerned as cluded follows: right with the of an individual to stand case originally adopted If the had section as which this Court for election meaning exception other than the removed right” has stressed is “fundamental operation elective offices from the the only infringed upon by showing can be clause, prohibitory inclusion ex- interest,” “compelling state White Man ception meaningless surplusage, was chin, 526, 543, 173 W.Va. 318 S.E.2d legis- section would then mean that (1984); instead, ques we are with the faced ineligible lators were ex- already tion of whether an individual cept when their offices obtained (and assumed) position been elected to is, course, election. There a well-de- Legislature may appointed thereafter be between post governmental during an to another ex fined fundamental difference acquisition appoint- isting term these circum of office. Under office hand, ment on one election stances, dangers comprehended by where other_ meaning Some must be as- readily appar the Emoluments are so Clause excepting cribed to the clause and when ent, any overarching public fail we to discern it, reasonable, we seek to ascertain if policy favoring eligibility. therefore re We only logical not the is that conclusion ject respondents’ argument Emolu exception describing had the effect of VI, § Article ments Clause of 15 should be thereby kind and character of the offices strictly of eligibility. construed favor operation prohibi- removed from the support argument In their basic tory not the which clause and method VI, § exception language in 15 ex- Article offices were to be filled. empts legislators appointed who are to of- added).20 (emphasis at 142 Id. 93 P.2d (rather fices that are elective nature than affirmatively traditionally “filled offices This Court has ad respondents people”), point possible, cases from rule that “if to two hered effect cases, every given part every Alabama and and to California. these should provision that, courts held that because the word of a constitutional constitutional prohibition pertains exclusively “appoint- unless there is some clear reason to the ments,” exception contrary, part must be construed to no fundamental law Syl. regarded surplusage.” pt. relate to nature of the office if should be any significant meaning. part, Parkersburg-Aetna it to have Diamond v. legisla- Significantly, provisions pertained singularly eligibility of a emoluments con- tained the California Constitutions "appointed” to a tor to civil office. Carter, major were focus in however, case, Corp., supra. number, In this Article among select from or to make proscribes of, ap- election as well as synonymous choice and is with the pointment exception language to office. The “choose,” “select,” “prefer,” words and it can Constitution therefore be con- evidently used sense requiring popular strued as election without constitution. rendering meaningless ie., it exception the— While the words “elect” “appoint” election, pertains clause to a class “elec- ordinarily synonymous, are not we think a people.” tion[s] careful examination of language of our Respondents’ argument becomes more that, constitution will show in some in- however, persuasive, when we consider the stances, the framers of that instrument Virginia upon earlier constitutions which Ar- have used them as such. VI, § Virginia ticle 15 was The based. Con- 32-33, 34 Or. at 54 .P. (quoting People at 351 merely proscribed stitutions of 1830 and 1851 (1857)). Aylett ex rel. Langdon, v. 1 8 Cal. “appoint[ment],” rather than election to of- Wagner City See also v. Angelo, San 546 Thus, blush, fice. at first the rationale of the 378, (“[T]he (Tex.Civ.App.1977) S.W.2d 379 Alabama supreme and California courts “appointment” term appears to be used in appear applicable. would [of section the statute] as a more com- A distinction between the terms “elected” term, prehensive convey the idea of a “appointed” recognized juris- was in this mode of constituting designating the head 1866, early diction Judge as as when Harri- department, by ap- whether selected ‘elected,’ son noted dissent: “The term otherwise.”) pointment, election, or (citing generally speaking, imports popular election. Compson, supra). ‘appointed’ The term excludes that idea and The insertion of the word “elected” into refers the office or trust to some other Virginia Constitution of 1872 Faulkner, 269, source.” Ex Parte 1 W.Va. properly merely be viewed as clarifying the (1866) (Harrison, J., 298-99 dissenting). original intent of the provi- Framers of the However, Virginia Constitution of 1830 sion in question. Consequently, we find no apparently employ did not these words as respondents’ merit in argument' that the ex- mutually example, exclusive terms. For ception language VI, § of Article 15 would be while the “appoint” instrument used the term nugatory meaningless rendered when con- Assembly’s to refer to the General act of requiring strued as de election. facto selecting attorney general and officers of (above brigadier the militia the rank gen- long history Given the eral), comparable it described power jurisdiction, emoluments clause in our we are legislature governor select the drawn back to the Constitution of judges in “elect[ing].” various terms of 1830, exception language where the at issue interpreting early Other courts state con today frequently was first included. A relied stitutions have made similar observations upon canon of construction is that statutes concluding “appointed” that the term can be relating subject to the same should be con broadly encompassing read as the word together strued possible as far as to deter Wagner “elected.” In Comp State ex rel. v. legislative mine intent: “Statutes which re son, 25, (1898), 34 Or. 54 P. Oregon subject late to the same matter should be Court, in interpreting its state con applied together Legis read and so stitution, observed gathered lature’s intention can be from the ‘appoint’ probably Syl. 3, “The word was pt. used as whole of the enactments.” Smith term, comprehensive Comm’r, a more convey v. Compensation State Workmen’s 108, (1975); the idea of a constituting mode of or des- 159 W.Va. 219 S.E.2d 361 see officer, Miller, ignating Syl. 3, 242, pt. Boley whether election or 187 W.Va. fact, otherwise. the words ‘elect’ and applies, S.E.2d 352 same rule ‘appoint’ course, regarded equal seem to have been discerning force when synonymous by the convention.” The intent framers of constitutions: Blanken out, 108, simply pick word “elect” ship, means to at W.Va. 207 S.E.2d IV, III, § over into Article Virgi- election was carried only did Article 8 of Not of 1830 contain an emolu- 10 of of 1851.22 The first nia the Constitution Constitution essentially indistinguishable Constitution, 1863, clause ratified in ments today, which we construe it also by specifying even the rate of went further very that “no provided in the same section pay requiring legislators effectively — compensation increasing the of the mem- law implement any constitutional amendment Const, until end of the take effect bers shall compensation. W. increase in See Va. after session such'law shall next annual IV, approach § 33. This art. striking aspect been enacted.”21 VÍ, § employed in Article 33 of also the 1872 effectively that it re- clause is compensation recognized we Constitution. As State ex intervening popular quired an election before Gainer, rel. Holmes v. pay could take effect. increase (1994), “[t]his 447 S.E.2d constitu- Emoluments in the Viewing Clause requirement extremely tional made it diffi- closely-related it provision, context of get legislative compensation cult to consti- to that the unreasonable conclude would be legislative tutional amendment to increase (or the 1880 Constitution Framers of any passed frequency by salaries constitutions) later on the one drafters of (in Only pay voters.” two increases 1920 and expose legislative pay in- to hand intended 1954) passed by constitutional were amend- scrutiny, prior to electoral but on the creases 1970, prior ment when the to section was acquiesced per- in other hand nevertheless substantially place responsi- to rewritten gain mitting legislators to obtain .similar bility initiating pay increases the hands appointments office. through non-elective independent legislative an citizens of com- jurisprudence illogic. abhors such Our See pensation commission. Kerns, 130, 135, 183 W.Va. 394 State v. The notion Emoluments 532, (recognizing “duty 537 of S.E.2d design part provide Clause is of a broader possible to avoid whenever con- opportunity advance absurd, electorate with an of a statute which leads to struction pass upon self-serving inconsistent, unjust potentially increases or unreasonable re- sults”); compensation Harvey, by ex rel. also bolstered refer Simpkins 312, 321, 268, 305 277 provisions pertaining S.E.2d ence constitutional cases). (1983) (citing earlier pay. Virginia executive The 1863 West Con any increase or prohibited stitution decrease the 1830 of Consti- Consideration compensation during public officer’s academic The riot an idle exercise. tution is Const, term of office. Va. art. W. Legislature’s restriction on the .constitutional ,§ Ill, 9.23 prohibition operative This remains ability an in- pay tó vote itself immediate VI, present § of our Article Constitut part until the latter of this crease survived (cid:127) previously ion.24 century. requirement any legisla- The Court discussed at length preceded by purpose underlying tive pay provision: raise be Const, 6, supra, compensation granted No 21. for the text Va. extra shall be or See note officer, III, agent, any public allowed to contractor, or § servant art. 8. shall after the services have been made; any contract rendered or the legislature nor shall Const, 10, supra, 22. for the See note text of Va. payment any authorize the claim IV, § art. 10. thereof, part against or created hereafter State, made, agreement any under or contract provision A similar contained in the 1830 law; authority express without and all such Constitution, provided that the agreements shall be null and unauthorized governor’s compensation "shall be neither in- salary any public void. Nor shall the officer during creased nor diminished his continuance during be increased or diminished office, his term of Const, 3; IV, § Va. art. see office.” officer, any such or nor shall his or their Const, V, (specifying § Va. art. also any liability debt sureties be released from or gubernatorial salary directing offi- that such Provided, legislature may due to the State: cer "shall receive no other emoluments from this expenditures appropriations for hereaf- make ter governments”). or other insurrection, suppressing or incurred in repelling invasion. added:) present’ (Emphasis (1923). § 38 of our Constitution also W. Article See Va.Code 6-7-7 provides: the exception language command of the Constitution that To construe of Ar- VI, § in- public of no ticle salary suggested officer shall manner respondents during require ig- term of would thus diminished his that we creased nore the broader in- salutary is a wise and Its constitutional scheme mandate. tended Framers. The fact that a vital purpose is to establish definiteness part design- of that certainty in limitation public the salaries of officers —the Legislature’s ability protect indepen- pay increase its with- safeguard tp and to dence, express presupposed out an efficiency security, referendum— has since been altered occupant every It constitutional public office. amendment, does diminish the considera- who serve assures those ble force that these provisions antecedent give them as officers shall their . bring construing to bear the Emoluments during their amount services terms for the ' ’ Indeed, Clause’ at it issue. is well estab- compensation they were will- for which lished that “when an article has two distinct selected, and ing to serve and have been dealing matters, sections with related amend- expected peo- for which were to one section is not an amendment at entrance ple to serve the time of their 'mentn n presumed to the others it is if because performance It upon of their duties. had legislature intended an amendment upon prevents attacks those officials apply to both sections it would ex- time, possessed, pressed intent.” 1A J. Norman and the will or control means to influence Singer, Statutory Sutherland Construction through course of conduct added in- their (5th ed.1991) (footnote 22.34, at 298 omit- public expense; the come it removes ted). possibility increasing manner in that of by people burden those the the financial of language reading Our of Article possess power who exercise the of § strengthened 15 is further when we con- government authority public and the experiences sider the of the drafters of our from the benefits which result office. Constitution, present who reintroduced the provision operation this of the Constitu- into organic Emoluments Clause the law promote orderly tion sound and adminis- jurisdiction. The abuses that occurred government, provision tration and this Reconstruction, during which resulted most circumvented, with, dispensed not be accountability, notably, popular from a lack ignored. surely thinking must have moulded the Constitution, the Framers of the. 1872 such County v. Harbert Court Coun Harrison they trae, rep- have would intended that 54, 62-63, ty, 129 W.Va. 39 185 S.E.2d , democracy sway resentative would hold added); (emphasis Delardas see also possible. whenever Our construction of County Monongalia County, (1972). provision question faithfully 776, 781, takes those S.E.2d motivations into account. notes, provision Bastress As Professor “provides a independence measure of they

protection public Consequently, for we Arti officials because hold that VI, § promise Virginia be influenced of a cle will not of West Constitu tion, salary exception, the threat of a decrease. a raise or with one renders member Conversely, prevents po Legislature ineligible the section those in be elected power in government sitions of to a civil office for in this profit State, created, power unreasonably using that to extract which has been or the emolu Bastress, increased, high during have salaries.” Robert M. ments of which been Virginia legislator’s term of office. hold State Constitution We also respect purpose, exception to the latter the ulti for “offices to be With filled people,” operates check as to elective from election mate officers comes allow ineligible legislator this-provision gain public fact that an inter otherwise ensures effect, imple popular vening prior through office election. In compensation. only people can mentation of increase in a vote of overcome the n MAYNARD, Justice, dissenting: imposed the Emoluments impediment holding, we are light of In Clause. decision, majority this Court has With the relief grant mandamus compelled to and the Legislature attacked Gover- both by petitioners. sought I, one, for sledgehammer. nor with a do not lying it take down. believe that will however, stress, the hold- must We far-reaching long- This decision will have pose significant a ease does in this lasting consequences judicial the entire for highly per- qualified to otherwise obstacle government in West branch Importantly, office. gaining appointive sons many years come. question applies only to a provision Upon term of current office. legislator’s Every grade eighth civics term,, legislator of such expiration system of student understands our checks again eligible becomes of govern- one and balances. When branch Moreover, Emoluments civil office.25 arrogant in use of power, ment becomes its disability places no whatsoever on Clause system provides balances of checks and office legislator gains through election remedy. language, when one plain branch Thus, fail we to see people. how barracudas, another behaves like branch today nega- will serious conclusion case, majority “reels ’em” In this in. ability impact upon the of members of tive power stripped ap- of his the Governor to later serve the pointment Legis- and denied members this State. right lature to hold certain of- their be grave.

fices. I fear the outcome will IV. nothing This amounts to than decision less Japanese Pearl Harbor. Admiral quoted saying Isoroku Yamamoto is about CONCLUSION attack, right “I the United States after stated, grant we the relief For the reasons sleeping fear all we have done is awaken requested by petitioners, issue a writ of giant and with a terrible fill him resolve.” respondent, requiring mandamus Governor metaphor, precisely that is To' continue the Underwood, duty to discharge H. his Cecil Legislature this the what has done to Court Const, VIII, by ap- § art. under W. Va. Virginia. cannot of West This Court contin- pointing of an individual office Justice ue to at the other thumb its nose branches of is Appeals government. Legislature and the Gov- constitutionally qualified to hold such by will continue ernor not stand to allow by not barred from and who is such service usurp pow- this their constitutional Court to VI, § operation of Article 15 of the West genuinely Legislature I ers. fear that Virginia Constitution. with a giant will now be “a filled terrible already press resolve.” is talk There mandamus, moulded, granted. as Writ of may attempt to make DAVIS, deeming disquali- Justice herself changes making power budget in the of the fied, participate in the in this did not decision fervently hope I that does not Court. occur. case. But some checks effort to exercise and bal- surely will power ances on this Court’s MILLER, sitting by tem- Retired Justice attempted. even That effort could result porary assignment. way change in fundamental we select fact, WATT, sitting by judges many L. Judge this State. CLARENCE assignment. Virginia lawyers newspa- state temporary several pearing representative capacity respect we In this note that the restriction of in a before previous- Emoluments Clause is more than governmental entity the what is officials short-lived he or she imposed upon public a broad class ly served extends for six months term of after by the West Eth- Governmental public W. Va.Code service has ended. 6B-2- Act, example, W. Va.Code ch. 6B. ics For (1995). 5(g)(1) against public ap- prohibition a former official however, changes clear, already advocated radical Even if it is not pers respon judicial process. urge prevail. in the dents should Our law selection Some states that support ambiguity “[i]n the event of judges and others a constitutional merit selection for every amendment will receive reasonable nonpartisan minority opinion elections. eligibility construction favor of for of Report in The Pinal Commission Syllabus fice!.]” Point ex rel. State Malo Virginia Judiciary the Future of the West ney McCartney, S.E.2d judges. recommends merit selection of governor’s This is because if surprise It would not me there was power appointment, within constitutional adopt Virginia1 system movement limits, Also, plenary. right is the valuable by Legisla- judges wherein are selected a citizen hold office should not be impossible ture. predict While it is what except by plain provisions denied of the law. specific changes will come about a result case, In the instant Governor Underwood mistake, decision, changes this make no authority VIII, used his under Article Sec coming. appoint Speaker tion 7 of the Constitution to many negative practical Aside from the vacancy Kiss to fill a During this Court. decision, effects of this few of which are set argument, petitioners oral in case No. above, majority forth wrong about the VI, acknowledged that Article Section First, majority ignores law. clear consti- susceptible 15 is interpreta two different VI, tutional language. Article Section 15 of Accordingly, tions. we should construe prohibits Constitution senator or dele- ambiguity in Article 15 in Section favor of gate being to a elected Speaker eligibility Kiss’s plainly for office as profit during civil office of the same term required by Instead, well-settled law. created, which the civil office was or its majority opposite does'the and construes an increased, “except emoluments to be offices ambiguity by petitioners manufactured these Thus, filled the people.” election ineligibility. in favor of provision expressly publicly-elected excludes Third, majority opinion is wrong be- prohibition. undisputed offices from its It is ignores persuasive authority cause it justice supreme that the office of court other states. Courts which have considered appeals constitutionally as a established under state issue constitutions simi- publicly-elected office one to be filled provisions provisions lar have ruled that such VIII, people. Article Section prohibit gubernatorial appoint- do not provides, 2 of the Constitution in relevant ment members legislature to a part, justices that “[t]he shall be elected office where the members the voters of the a term of twelve subject are to election. office years, unless sooner removed or retired as The constitutions of nine states other have Delegate authorized this article.” Kiss fits provisions constitutional to our own similar prohibition exception within the to the con- exempt by offices to filled which be election VI, tained Article Section 15 he because Ala; IV, by people. See Art. the Const. appointed justice was to the office of is which 13; 59; 4, § § Ind. Cal. Const. Art. Const. by peo- by an office to be election filled the 30; 3, 21; 4, § Ky. § Art. Iowa Const. Art. ple. temporarily The office shift does 44; 4, 3, 10; § § Pt. Const. Me. Const. Art. being being from an elective office to an 4, 45; § Art. Const. Art. Miss. Const. Nev. appointive merely office because a is seat IV, 4, 8; § In and Or. Const. Art. vacated which must be filled until the next Justices, Ala. Opinion the 181 of election. (1965) and Carter Commission So.2d 105 Second, opinion wrong majority be- the is Qualifications Appointments, on Judicial of disregards precedential (1939), cause it authori- the Cal.2d 93 P.2d 140 su- ty which when we the states that consider preme California con- courts Alabama and constitutionality appointment, of an executive legislator may to cluded that be strong, presumption by is a normally there favor an is filled election office which above, eligibility. by Supreme I the people. As noted believe the Court Ala- language opined: clear. Article Section 15 is bama alteration in Con- just before the word that the the

If section ended the “suggests clarify an intent to that Legislature the stitution “except,” no member of term, only during popular election was the means abat- appointed, his be could ever by impediment imposed the the Emolu- by the any office created words, though proceedings “the But the ments Clause” even he was member. which indi- by of the constitutional convention do not as filled “except such offices - any an intent substantive by people” the must cate work have some election Further, provision.” changes opines on the only meaning. reasonable construc- majority, architects of our 1872 excepted “[t]he tion that rule of Sec- by ... no doubt influenced Constitution were tion an an office 59 is they really? era.” Were “may by the Reconstruction be filled which way they were influenced? In addi- what people.” tion, majority we informed Ala. Opinion, 279 at 181 So.2d at “[preventing self-dealing abuses Likewise, California ‘carpetbaggers’ period of the Reconstruction explained: been must -have foremost the[Framers’] adopted originally If as had the section Again, majority, “[t]he minds.” asserts meaning re- exception than that other Reconstruction, during abuses that occurred the operation elective offices from moved notably resulted most from a lack of clause, the prohibitory inclusion accountability, surely must have meaningless exception was and sur- thinking I Framers[.]” molded the would mean plusage, for section then seance, I had been to the or had wish invited legislators ineligible appoint- were ball, majority’s crystal I access to the so that éxcept ment when obtained their of- engaged have in enlightening too could dia- meaning must fices election.... Some logue with the 1872 Framers. excepting clause and ascribed it, Seriously, when we seek ascertain the reason- .though, language of this de- able, only logical cision, understood,” if not the conclusion is have “would exception doubt,” had the effect of de- “suggests,” “were no “must have scribing been,” have,” the kind or character the offices surely points “must to the sim- operation thereby removed from the ple majority guessing. fact prohibitory clause and not method Finding complete legal support for lack of result, majority which the offices were to be filled. up its his- made desired tory thirty-seven out of whole cloth. For Carter, P.2d I at 144. Cal.2d pages majority specter raises the of car- right point reasoning believe this petbaggers and evil of the reconstruction adopted should have been this Court. case, era, wholly irrelevant instant major- truly me about What astonishes only reach writ is the conclusion that the ity opinion so empty is the fact that it is granted majority because the does not want legal majority support. The admits that Speaker Finally, Kiss on this Court. “[t]he records the constitutional conven- majority fails to how its will see conclusion .,. light tion shed no on the intended mean- negative impact upon the serious ing language Article [the Section Legislature ability of members of the to later 15], provision adopted as the without Well, serve the of the State. let me majority or amendment debate.” The then you tell how. however, proceeds, thoughts the to discern Legislature and a disparate group Every intentions of member the should Fram- despite ers and appalled from 1872 the rec- furious when realize nonexistent effectively example, majority ords. each For the finds that that this decision has denied rights of the most basic of all Framers 1830 Constitution “would them one right have to hold understood Emoluments Clause as Americans —the certain goes primarily imposing legislative But it much than that. check on cor- offices. further ruption.” Now, any majority Legislature what On does base when votes applicable majority such a claim? The also in emoluments to all state concludes increase in- nothing It do employees, regardless of how small the more. to with the law. crease, disquali- delegates are and senators The is observation thus: some members of , appointment to all state argued from offices

fied this Court case and demonstrated words, during In other if the pay judi- term. need for raise for all slightest Legislature increase to during legislative votes cial officers the 1999 ses- coverage, employees in or retire- state health sion. Some same members of this benefits, benefits, travel deny or vacation or ment have now voted to a to member pay, and expenses, per delegates or diem all legal right of that same his to sit are now very pay senators barred on because of this Court raise. any position other state which becomes irony! chutzpah! What What during vacant that same term. The door Tragically, people today in West positions has judicial and executive branch country and across lost confidence legislators signif- slammed shut to for a been in system. the American court The decision period any after in icant of time increase perfect example this case is of the reason leg- true emoluments. This is even of those why. majority simple, has taken any on For who vote no increase! islators plain language provi- of a clear constitutional example, any can delegate no it beyond recognition sion and twisted all following legislative pay senate seat vacant order to achieve its own ends. With this raise, diem, legislative per increase decision, majority abandons sure just emolument. This is one small law; ignores plain foundation settled con- impact illustration of the brutal deci- this language; rejects authority stitutional legislators. many There moré sion on are Court; fill the Governor to on this vacancies cut small but list them all would down a power Legislature; usurps the and forest. precedential persuasive disregards au- Also, this decision will have an awful effect thority. consequences troubling. judges. my all our circuit One of main on subjected opinion legal We are to a bereft of as a of this been priorities member Court has precedent only by legal supported sound preserve authority, and enhance the inde- majority’s spurious reasoning. own This Cir- pendence and discretion office of par Captain on decision with that Smith rights Judge. guarding cuit This means go frigid night full steam ahead on that circuit on judges both the law side and the 1912 when he.steered the Titanic. There- courts, side of which includes administrative fore, I dissent. preserving judges’ improving tenure I am authorized to state Justice salary benefits, adequate providing joins MILLER me in this dissent. equipment. support hope staff and I portend im- decision does not failure Justice, "STARCHER, concurring: Chief goal, portant but I fear that it does. (Filed 1999) Dec. addition, majority grave In has done a I. Speaker disservice to Kiss. This decision political good mugging Speak- of a man. Pouring Gasoline the Fire on great integrity Kiss is an er able man truly upset by dissenting I opinion. am intellect, respected peers and honored his opinion I read an a member of have never government legal profes- in State compared opinion of fel- this Court sharp big He has a mind and a heart. sion. justices slaugh- human low to a cruel act of superb judge. Sadly, he has He would be a ter, Japanese on attack the United like the legitimate right been robbed of his to sit fact, Harbor. States of America Pearl this Court. I I’ve ever such a vicious don’t think seen considerations, Finally, legal aside from judicial anywhere. in a comparison dissent — irony is real in this At the there decision. outset, by I am between this and the other suggesting this comment Tension government It is the cases should be decided based on branches of is not new. merely observation, job interpret Virginia noth- to the West factors. This is Court’s two, year pendent government, protective Constitution, every branch of and almost way rights to in the of some laws and required are stand enshrined our we Legislature the by executive or action the Constitution.1 actions have violated the Con- because their deciding get to it comes to who will When stitution. (or job judge powerful being the a hold ways to sparks There to react the are two justice, magistrate), popular have used we inevitably fly say when this Court has to Virginia for than 125 elections West more by or Legisla- “no” to the executive an action years. system accounts This has all way try to the ture. One is to understand served us well.2 Court, keep and to the proper role of states, ordinarily we don’t Unlike some respectful plane. and civil on a discussion jobs Virginia judging out our West hand way do to react is to what other trade, swap, or deal—in the back-room pour gasoline on the dissent has done —to governor’s office or in the —even flames! qualified require to highly candidates. We judicial anyone It serve for does not they get job judges, our and exer- before open officer invite dissension and warfare election, power, publicly for and cise stand judicial government between the branch approval people. receive direct mean-spirited and Nor does other branches. vacancy judicial there is a between majority’s reasoning process When ridicule of the elections, exception. gover- By we make an any purpose. exaggeration, serve mis- statement, rhetoric, person job inflammatory gets nor until and selects surprisingly, dissent and fans flames of the next Not when fuels discord. election. just judicial “appointment exception” This is what state does not need. se- in, is lection kicks the role of the electorate

II. diminished, politicians and the role of enhanced.3 Getting Being Job A Judge ultimately give It is there are on who is who vote who But some restrictions system legitimacy eligible our court its as an inde- for such to office. A, Starcher, Virginia legislative leadership. Appendix Larry 1. See V. "Judicial mechanism This Virginia,” severely West Selection in Volume Number has been criticized one of the dissen- Lawyer, October ters in the instant case: laboratory majority What a true of horrors the money power always 2. The forces and are lineage concocted with this back-room has opposed popular judges. These origi- documents that will transform what was "good government” forces fund so-called cam- pronounced nally having as dead and no force £pr popular paigns against system electoral something effect of alive. The and law into any system selecting for selection. While Igors may rejoice majority’s of world at the negatives, judges arguments its the basic not, I do it takes the concoction. because against judicial elections are in fact well-refuted legislative process light day out of clear comparing appoint- research the electoral and legis- where matters are voted on the entire approaches. government” arguments ed "Good lature and condemns it that subterranean against judges election of are in negotiations, where memoranda of com- realm large cover-up measure a the fact rhetorical for promises, agreements exist and discus- (who powerful that it is easier the rich and in committee are used sions to validate minority) are numerical electoral to affect and expenditure through specific Bud- of funds judge, control who does does not become a get Digest. popu- when the selection is means other than Tomblin, Starcher, Cause (See Common supra.) lar election. 358, 401, S.E.2d (Miller, J., dissenting). quite decisions are Creat- Political American. adopt approach in the instant To dissent's people jobs raising giving salaries case, permit legislators and to who create or (and legal) part historically of what has normal salaiy jobs raise the to then take and hold operation legislative been central Consider, jobs obtaining popular ap- first those without example, arenas. executive proval, surely "laboratory would Digest," furnish "Budget whereby mechanism mil- projects jobs horrors" with the raw materials even more lions dollars for local gifts by annually passed holiday out like the West un-democratic concoctions. (2) judicial a gubernatorial appointment vacancy case of a to a if there in the a (or job), job judge’s “appointment exception” other there is' an to the decide; Virginia people the rule that Constitution —and United West Constitution, and the States constitutions (3) constitutional, however, there is a rule legislators -say all almost other states — legislators ineligible makes hold job job ineligible was are for —if job during particular during a term job pay created or the for the was increased creating job were involved with or during the term that the to the improving salary job; is to be made. office “popular there exception election” These constitutional “Emol limitations rule,” “legislative to this ineligibility so that Cláuses,” “Legislative Ineligibility or uments legislator may during hold an office O’Connor, John F. Clauses.” See “The term in he creating which was involved An In Emoluments Clause: Anti-Federalist job improving salary job, or if Constitution,” in a truder Federalist Hofs people ineligibility through override an L.Rev. n. tra election, during particular even term. legislative ineligibility clauses in our federal constitution dozens of state con- III. absolutely legislators bar stitutions eli- Incumbency The Benefits of

gibility for offices were created had my judicial jobs I gained have through pay legislator’s during increased ' popular election on four occasions. Twice excep- term. Most of these clauses make no (with many help people), successfully I popular tion whatsoever for election to such outside, stormed the castle from aas chal- sight an office. Somehow the dissent loses lenger and non-incumbent. I Twice have elementary point. stood on the battlements of as an in- office ineligibility legislators This strict is not , cumbent, repelled attempts of would- Court, diabolical invention directed evictors. Speaker It is a Kiss. central fixture of our experience, From this I understand well governmental system. American incumbency might I benefits —and example, George Washington For add, I incumbency ‘earned that elections. had to withdraw his nomination William incumbency Of course does not assure vic- Paterson to the United States tory. significant But weight “being Court because Paterson had been the Sen- brings popular in office” to a electoral con- when ate the office of Associate Justice was undoubtedly incumbency test makes a rich 105. I suppose created. Id. at that accord- prize. asset and dissent, Washington to the President Tojo! like Admiral judicial vacancy “leg up” If —to fill a —the incumbency person must be to a awarded (and states) Virginia West about nine other in an who has not earned that benefit elec- their sort of a constitutions some tion, then that benefit must be awarded exception” “legislator “popular election possible reading adherence to the strictest ineligibility Our “popular rule.” state’s elec- any applicable proscriptions and limitations. exception, Article tion” Section Otherwise, system our democratic is the constitu- Cpnstitution, selection would be distorted and unfair. is at tional clause that issue in the instant ease. IV. then, summarize, person

To here is how job gets judge justice Error Dissent Virginia: approach— The dissent does not take this (1)the general deciding gets contrary. rule for quite The dissent would jobs judging possibility in West is this: the mere of a future allow .the decide, elections; through popular permit ineligible leg- election to otherwise only get “free ride” on a

islator to grab also but to powerful horse a judicial subjective impression that a strong incumbency ring” of “brass coveted —all Virginia Penn- vibrancy exists in and West submitting the fare” of “paying without first Virgi- simply that is not found sylvania popular people in a elec- the will of the rule, general and Rhode Island. As nia winning. tion —and legislatively selected the decisions from laconic, prosaic, are and sterile. benches approach the dissent’s Under laissez-faire Contrariwise, from the courts those elected question, language to the constitutional Virginia’s) vigorous (especially West enjoy prohibited an otherwise legislator could inspiring. often and years, popular ap- literally without office for Pinello, Impact The Judicial- Daniel R. way in some forth- proval an election was —if State-Supreme-Court Selection Method on short, that the dis- coming.4 position Reaction, Innovation, Atrophy Policy: and the constitutional gut would sent advocates Press, 135, 140n. Greenwood hold ineligibility legislators to offices jurisdictions experience most with [T]he they have or for which have created plans selection has not been merit pay. improved the political from elimination of considerations selection, judicial but substitution V. political kinds of forces others. some Majority Opinion is Correct The Dubois, Indepen- Phillip “Accountability, L. in the case majority instant has staked Judges: dence and the Selection position strictly applies consti- out a Elections,” 40 Popular Role Judicial ineligibility rule. The ma- legislative tutional 31, 33 S.W.L.J. jority and well-reasoned. opinion is solid years, Virginians than For more West dissenting approach ignores both consti- open, competitive partisan used and have history. purpose tutional judges required elections choose —as by our Constitution. cry always politics There be those who will goes. way it But in such a case—whichever Nevertheless, years in recent it has been majority instant the law with eliminating is judicial elec- suggested majori- I with the Accordingly, tions, purportedly case. concur “non- adopting system judicial ap- ty opinion. political” decision of “merit-based” judges, pointment, we would “better” footnote, And, say I that it is as a would judi- “dignity respect” and more for our healing begin. time let system. cial A APPENDIX perspectives are at two There least changing may suggestions underlie such Virginia’s Choosing Judges West Virginia’s process. selection West Starcher, Justice, by Larry V.' perspective the idealistic and unself- One is Virginia Supreme West government for the improve ish desire to of Appeals5 Court understand, people. respect of all I benefit reading opinions [M]any appreciate perspective. months In world competing groups the sense of the six here creates a interest states canvassed majority upon simplistic gram- people.” The construction that 4. The has relied dissent construction, to scholarship. matical tutional read the relevant consti- adopts history accord permitting perversion language as is, course, But there constitutional intent. judge the Seven- 5. The author elected grammatical equally permissible construction 1976, 1984, and Judicial Circuit in teenth require intent that reflects a constitutional Appeals was elected to the Court of He ineligible otherwise election before an grateful Virginia The author is of West in 1996. legislator grammatical may take an office. That Rodd, Supreme Thomas W. for the assistance of construction is with the fact that our consistent Clerk, University Law J.D. language constitutional —"offices College preparation of this of Law people” mandatory elected —as language upon opposed in the cases relied article. hy the dissent—"offices as be elected counties, etc., people going seriously leads cock responsibility civic that disin- are government” terestedly “good letting lawyers work for is all idea entertain the a few try bring too We all major rare. should and political appointees other have perspective professional to our lives. say judge in who their local is—or who judges serves as the hear appeals that writing primarily I am this article to ad- those counties. “good and dress those who value share this my government” perspective. It is belief my I thank readers in advance for their respect ap- judiciary that with to our total attention. I also thank Virgi- all those West pointment judges way of our is not the best participate judges nians who in selecting our “good government.” Hopefully, to achieve by casting ballots our elections. It is my points open consider with an readers will ultimately give who vote who our my perhaps persuaded by mind and com- system court legitimacy indepen- its as an ments. government, protective dent branch of rights enshrined in and Constitu- laws our view, that, my I also note there is would tion. is perspective second that associated with abolishing calls for election of Competitive 1. Electoral Judicial Selec- judges. perspective This less ideal- second is tion ais Desirable and Time-Tested istic, power, pure is more about and and Democratic Process. simple. perspective This reflects the desire orient, shape, of elites to and control our great political There is a deal of science legal system. perspec- I do not share this research, scholarly opinion, just plain tive. support choosing common sense our judges in agree elections. that Researchers mind, Keeping perspectives these I two competitive process results below, submit, the reasons discussed that just “qualified” a judiciary as able as the Virgi- it would be serious mistake for West appointment process.6 present change system nians judges. choosing Moreover, it widely is found that there are state, Fortunately political I substantial social and associ- for our think the virtues likeli- competitive judges.7 nil. I ated change hood of such is do not believe with the election of Raleigh, accountability8, in- Hardy, that the citizens of or Han- These virtues include the previous judicial judicial 6. are Our research confirms studies tives in selection to secure sys- quali- independence "highest which find little evidence that selection and to recruit the produce judges markedly ty” legal tems different professionals to staff the bench. Oth- judicial superior that credentials or goals, judicial accountability er or the such as background most on other characteris- vary desirability having judiciary broadly that is systems we find that serves, tics .... selection no representative population that it impact selecting judges important with dif- positions impor- assigned secondary are superior ferent or credentials for office.... suggested go entirely. tance or unnoticed As Emmert, Craig Henry F. R. Glick and "Selection above, experience jurisdictions of most Systems and Judicial Characteristics: the Re- plans with merit selection has not been the Judges,” of State cruitment political ju- elimination considerations from 4, 228, Judicature No. See also selection, dicial of some but the substitution Dubois, Philip Adamany "Electing David political forces others. kinds Judges,” L.Rev. 731 Wis. Dubois, Phillip "Accountability, Independence L. support "Amid clamor of contentions in Judges: and the Role of Selection of State opposition [judicial to each selec- Elections,” Popular Judicial S.W.L.J. emerged systems, there have several em- tion] (1986) (citations omitted). that, pirical studies which demonstrate respects, system many the benefits of one poli- escaping judges 8.There no make negligible.” over another cy. judicial involving Since decision Scheb, II, Judge's Appellate Atti- John M. "State policy questions advantages broad inter- some tudes Judicial Merit Selection and Re- Toward beyond litigants and ests far the immediate Survey,” tention: of a National 72 Judi- Results interests, disadvantages one other scholar (citations omitted). cature No. 170 n. 8 process argued judge political "a is in assumed, activity activity argu- is interest not as it has his Too often been without discussion, only major objec- choice but function.” The mere ment or matter of well-rounded, judicial responsive in a suit more dependence9 legitimacy Certainly, enlightened is our bench.11 government selection branch of —and Virginia.12 general experience in West in and judges are involved persons as competi- A communities.10 Importantly, open attuned to their competitive elections chal- process been to re- selection new and tively judiciary has said elected Further, organizations pro- inherently policy party party deciding ticket. formulation act of necessary judges policy campaign make as a vide some of the resources cases. But function, promote program. for as well most to a candidate and his matter of choice Dubois, sweeping public “Electing Adamany Philip issues are involved know that and David 731, upon personal they their values in Judges,” and act State 1976 -774-778. Wis.L.Rev. resolving issues. those accountability position 11. The favor of and public policy, judges it follows make Since judicial a view makers, elections both different that, assumes policy should be like other judicial function and of the basis of representative people the accountable popular support respect and for courts. In Accountability usually political system. means view, process judicial policy making depart- of decision-mak- who lead those direct, ing, periodic popular particularly supreme subject at the level of state are ments cases, courts, straight-forward prede- far elections. In some accounta- from review in through bility indirectly legal princi- by precedents be achieved and the termined Rather, policy ples syllogistic legal reasoning. of makers those who of periodically subject approval. to voter judges are must often exercise their and discretion Dubois, Adamany Philip "Electing David and doing politi- in so are influenced their own 731, (foot- Judges,” cal, L.Rev. economic, social, State 1976 Wis. viewpoints. and moral omitted). And, note political system, in a democratic voters periodically those entitled select who strong judiciary and is the effective shield 9. public policy, including make law and those citizen, rights subject personal give meaning interpret who their laws and legislative against tyranny and en- executive the constitution. kept separate It should be from croachment Dubois, Phillip "Accountability, Independence L. Liberty every independent has and thing of both. Judges: and Role the Selection of of judiciary union to fear from the of Elections,” 31, Popular Judicial S.W.L.J. 51- either, depen- disguised with of a and the effect (1986) (citations omitted). dangerous as an union. dence is as ostensible Laws,” “Spirit says Montesquieu in of his might Popularly judges occasionally 12. elected liberty judiciary power true if the "There is no perceive a sense of mandate for them act legislative separated exec- and from differently than elected other officials. For powers.” view will be found utive The same example, (reported in 1978 interview John Federalist, that text book of reiterated in Hagan, Policy Patrick Activism in the West "Though individ- American Constitution: — 1930-1985, Virginia Supreme Appeals, Court of proceed oppression may ual now then 149, Virginia 89 West Law Review general liberty justice, of from the courts of [1986]), Justice Darrell McGraw of the West endangered people can never be from that Virginia Supreme Appeals of noted: Court quarter, long judiciary truly remains so as the Virginia years West court over the [T]he distinct both the and the Ex- primarily appointed been court. That is to ecutive.” say, way got Supreme on that the one Drake, Smyser W.E. Remarks Mr. Adams appointed Court was to some friend who County, Representatives, Thurs- in the House on governor and then to for run March, 1850, day, the 14th the Bill To appointment.... after [The] current court by Providing Elec- Amend the Constitution for [of of four a total of five] consists members judges People, Telegraph, tion Pa. Mar. actively sought who the office of 23, 2, Witte, Harry quoted L. "Judi- Appeals appointed were not Repub- People's cial Selection in the Democratic authority. probably executive We feel a Pennsylvania: People lic of Rule?” 68 Here independent judiciary, to an devotion Temple L.Rev. n. 210 past [The some in the have not felt.. clearly quite says level, that the state] Constitution simplest partisan At the elections are government separate, three branches of ... are likely much more to assure the existence of distinctive, independent, court and our opposition, vigorous er, pow- criticism of those separation. presentation pol- determined to vindicate that and effective of alternative Pinello, Impact obligation Daniel R. Judicial-selec- party icies. Political leaders feel an candidates, Policy: parti- State-Supreme-Court In- qualified tion Method on to recruit each for Reaction, novation, election, Atrophy, 140 n. for san office contested in an if no Press, fill out balance the Greenwood other reason than to lenging people and ideas. Innovative and This is percentage because substantial energetic judges complete self-starters who not received do not their full terms of issues, office. blessing changes, “the Career financial establishment’s” able to —are death, retirement, disability compete judicial all positions.13 Judges for combine long judicial with produce terms independent come to office in this fashion many during vacancies term. help insure a fair for forum citizens who up against come “powers be.” Thus, basis, regular replacements on a judges complete who do not their terms are summary, advantages In competitive appointed Many to office. of these judicial elections are numerous and well-doc- judges run election, office in next umented. place is a better incumbency. advantage advantages. because we have these Virginia, appointment Currently Ap- 2. West Has an beginning bench has been some distin- propriate Ap- Balance of Electoral and guished judicial As careers. pointment Based Selection. Judicial Bar State President Elliot Hicks noted recent article in Lawyer, the West Union, including Most states in our appointment opened judiciary has to un- Virginia, rely upon system popular some represented groups der like African-Ameri- However, judges.14 elections to choose their cans and women. elections, states use judges plays significant nevertheless My point role have a this: balanced role judicial in the process. “appointive judicial selection for selection” in West impact But adopt traditional elective on the decision us. To before Justice system may greater point be even much-quoted Otto Kaus’s simile for the risk of election, entry, opens every judicial because it initial judicial you defeat in a if cannot crocodile, subsequent compet- election and cope re-election to get with the out of the bath- judge- cannot well candidates. One treat tub. " ships expect many as elective and not Linde, them Judges: Hans A. Elective Some Com- self-starters, to be contested and filled some Comments,” S.Cal.L.Rev.1995, parative 1997- particularly political self-starters skills past whose names are known from elections Today only there twelve are states in which some other office. majority judges directly are elected people. these states Most of select their gave drawing up highest judges Once we judges through legis- executive nomination and genetic lottery, by in a Lords, birth into the House of remaining thirty- lative confirmation. In judicial every system of selection other eight subject judges popular states elec- competitive than some form of civil service tions. political. examination had to be ing question The interest- Fatka, Jason Miles Levien and Stacie L. "Clean- politics is what kind of distin- ing up Examining Elections: the First Judicial. guishes systems. the different Campaign Amendment Limitations on Judicial Regulation,” Pol’y 2 Mich.L. & Rev. 74-75 essence,11 says, as Justice Grodin the ten- (1997) (footnotes omitted). professional popular sion is and between stan- popular, partisan appel- The rise of election of judging judges. dards of The law schools’ judges essentially late as an is best understood might judges by pro- Platonic ideal chosen thoughtful constitutionally response by moder- editors, fessors and law review confirmed lawyers judges Whig, ate ic, Democrat- and but I do not recall that this ideal was shared popular Republican parties.... elec- by the even rulers or citizens of Athens. The tion was not viewed as inconsistent with the knowledge having directly by elected been powerful independent judiciary. ideal of a In- strength can be a source as well deed, were seen as the mechanism elections Many as of theorists weakness. unaccount- upon which the courts call a base of could ably accountability cite the lack of of lifetime popular support credibility sufficient to appointed judges argument against as an en- effectively legislative allow them to rival forcing cials, against constitutional law elected offi- power. executive argument but I hear no that we elected Dubois, Phillip "Accountability, Independence L. judges job differently should do our or less Judges: professionally and the Selection the Role of we are because "accountable.” Elections,” court, Popular Judicial 40 S.W.L.J. In our I heard have never (1986) (citations omitted). political bearing reaction discussed as factor Why? Mar- Because Supreme Court. have such States is needed. We change Virginia no clout than Roane. political more shall had years, and role, it for over 100 had we have surprise. come as no 8.) should (See This statement working. note it is consensus is scholarly professional judges the selection of overwhelming Re- Argue Can Be “Politics” That 3. To (including judges), whether all federal Ei- Is Selection always from Judicial moved been by appointment, political.15,16 Unrealistic, or to Be Con- Be ther to Agenda. cealing Political Own One’s not whether there will be Thus, the issue is process, for selection politics Marshall, Judge than rather In 1801 John always has judges been the selection of distinguished Virginia Roane, Spencer issue is: what always political. The will be county my home town jurist politics for whom of the few—or politics? The sort of many?17 politics named, to the United were work, Republi- judges, and of they body empirical want Democratic 15.Reflecting judges. Republican want politics parti- cans to admit to which the extent one realizes — anyone Virtually does every in the literature nowhere politics pervades politics and bar san — directly argue question and either face this type mechanism. of selection prefer against the debate over it. We it or we are we think when merit selection because the selection mech- Regardless form of principle politics. We can articulating above Choosing anism, seems constant. the content looking for posit that we are and believe then process political with a judges is a in America apply universal judges those abstract and major accepting loss in political result. exist, even if we principles justice we believe of reality that past present is illusion and practice yet them in with the not stated have politics. totally While judges above are necessity. logical certainly permanence of and Corsi, us to believe the wanted have often reformers 113-14, 153, R. Judicial Politics Jerome judges should of our and selection recruitment 1984. Prentice-Hall yet if beyond politics, we have to determine be achievable or desirable— is a result either that judge picking person a process to be 16. "The of concretely imagined. For if even if it could be is, by any political and fabric is woven into a world to be divided in are limited resources definition, process.” J. Mea- political Daniel supply, often exceeds demand all too in which dor, System, Yangs Our Judicial Yins and Some justice of distributive will the standard what be (1980), quoted Peter D. in 66 A.B.A. J. concept politics? Even includes no that Webster, Judges: Is and Retention of "Selection “equal opportunity for in who believe those Method?”, 23 Fla.St.U.L.Rev. 'Best' There One truth that all never have confront the all" must 3 n. 4 talent, judges equal position or and our social right every judge to be some kind concept needs necessity apply "In state some must of Neely, politician.” Why Courts Don't disputes everyone Richard wherein decide in order to Mifflin, 41, Houghton 1980. Work claimed as deserved. cannot have what is courtesy, we and Thus we have senatorial sorely reporting judges Investigative has been expect will be that our should never lacking comparing the chances motives behind reform "value free.” The attorneys, attorneys, plaintiffs' union change judicial interest designed selec- movements gaining attorneys attorneys corporate and to a can often be reduced tion mechanisms examining the federal bench—or currently being seats on judges selected claim that judges prior base of law firm objectionable the client objectionable politically — gun manufacturers who have ruled that focused While our is the reformers. attention victims; that liability of murder change to families in the no desired on the debate over liability itself, companies to families have no change tobacco mechanism selection victims; permissi- ask, scope cancer that fully comprehended we "What until programs should envi- ble affirmative-action types judges do the reformers different steadily changed produce?” reduced. will mechanism sion hew to sought Advocates of "merit selection” By keeping on the result our attention by the merit is to be determined procedure, we line that over than on the debate rather reputation rather than criterion more nebulous to the heart of the matter can often cut They objective do not measurable criteria. quickly. legal de- tests or advanced question civil service aspect seek of this entire The curious legal continuing grees extra hours or even to admit reluctance of Democrats been the Campaign politics gives all I favor a citizens a “36 Hours on the Trail” Or Judge?” “What Makes A Good judges open choosing voice direct —in I competitive marketplace. disfavor a notes, following my taken from cam- judges paign politics gives experience, grass-roots the choice of to a reflect real- judicial process. ities of the election few, I behind closed doors.18 also select Wednesday, early April, 1996. Awake merit selection —but the merit believe a.m., Morgantown 6:00 leave house at judicial being candidates determined a.m., pick traveling partner 6:30 up Ron electorate a handful of rather than Kelly. for Wheeling, We head about powerful. politically eighty Wheeling miles on 1-79. Arrive my I believe that view shared most requested around 8:00 a.m. Leave cam- Virginians. Virgini- I doubt West paign signs and brochures Electrical system ans would favor a where our state Carpenters’ doorways. Workers and Union Drive to Laborers’ Union meet with judges are selected a non-elective —but president, local leave materials. Then undoubtedly political process.- — drop lawyers’ off materials at two offices. Drive to and meet Weirton with Steel- Virginia’s 4. West Judicial Election Cam- workers’ Union board. Noon—lunch at paign Represent Finance Laws Fair Village, political Nick’s local tavern. 1:00 Compromise Workable Re- p.m., drive to New Cumberland. Visit flects Current American Political Phi- magistrate judicial Stop offices. losophy. businesses, shake hands at malls. p.m., 3:00 Franklin head for in Pendle- running competitive The financial cost of County, away my ton miles over 150 first — state-wide, campaign, especially campaign through visit there. Travel El- frequently It substantial. serves as the focal kins, stop up put signs. road Dinner point disfavoring judges. election of at Franklin KFC. Arrive Democratic However, Virginians are ahead of the Rally p.m. Speak, ques- about 7:00 answer campaign regulation. curve finance tions, p.m. stop meet voters. 9:30 at con- — campaign limit public and make contribu- We store, get says venience coffee. Ron we way in a tions that a number other states signs need in this up some more area. Put just trying campaign out. And finance signs in area. Seneca Rocks Head home judicial committees insulate candidates from Morgantown, off drop to Ron. fundraising. My Arrive at 2:00 home a.m. wife Becky I tells am wanted at me political campaign I do favor reducing 5:00, go imion in hall Weirton to to the example, by providing costs—for free or low- plant gates union at 5:30 with steward and to,candidates. air time But the issues of cost lawyer. stayed They I had assumed campaign financing costs and are distinct and Weirton area. has 5600 Union members. judicial different from the issue selection Shower, clothes, go. change Need to leave Campaign methods. finance issues should home at 3:00 Arrive at Weirton a.m. 5:00 depriving be used as a for not smokescreen a.m., stop at for coffee. Hardee’s 5:30— Virginians right judges to choose a.m., 8:00 meet 800 workers at four differ- competitive city offices, popular gates. ent work Travel to elections. Cohen, knowledge, legal education to measure or Mark B. Chairman Democratic

specific legal scholarship, measure of Caucus Pennsylvania Rep- Commonwealth of House of specific experience, objectivity measure of resentatives They character. believe that the definition of Letter, March, Magazine, The Nation individual, merit varies from individual to case, 18. Officials of associations have been state bar day day. from case to to sys- the merit selection first to admit that system A in which all elections citizens provides with the tem them most effective right participate likely have the to is more to influencing the choice means of of who will system serve a interests than on serve the bench. economic, participation legal is limited to Volcansek, Mary L. "The Effects of Judicial- political elites. We Selection Reform: Know and What We What sup- challenging pres- fact about our luncheon with local Here is campaign. 12:00 judicial gives system: ent selection it Wheeling p.m. Travel to porters. 2:00 —(cid:127) weight of a minimum- opinion same to courthouse, visiting spend 1 hours revisit % dishwasher, wage opinion as it does to home, pull off to Head toward offices. a multimillionaire. sleep, noisy to drive home nap. Traffic too against arguments “merit-selection” recliner, turn on Morgantown. Sit to judicial in essence elections ask: day news, Full asleep within 30 seconds. judging? what know of does dishwasher campaigning tomorrow! ask, might But what one as well does a governmental budgeting, trip dishwasher know Reflecting campaign and doz- policy? Perhaps not foreign or of much. it, I am I a better ens like conclude key system Yet it is the our that we my judge, because of person and better key public the selection of officials to entrust campaign time on the trail.19 citizenry general, rather than to elites spoken I have voter with Each whom superior knowledge purportedly —and strengthened my training. there are thousands —has job my quality to do a fellow commitment me, egalitarian, one-person/one- To judicial in a Each cast elec- citizens.20 vote approach selecting vote those who exercise including my oppo- cast the votes power including power judg- state tion — — try disappoint not to nents —-reminds me to ing21 “good essence of sustainable —is government.” system. faith the voters’ in our democratic There’s no 20. University of Phillip L. tion Do A.B.A. nience, ignore from quoted posure them near with service reason to be assured ignoring a crocodile in tive antees, inment cal ion niences most alone, California decisions, especially time consumed in a expenses, objectionable discouraging case is easily Not,” Philip omitted). .... Physical questions plan, are asked reality, judges deciding X, these are overlooked, thought in The public or even L. DuBois, Paradoxically, Apr. but when considered Reidinger, Texas DuBois, ed., political consequences way effort of sacrifice effect on political in too Analysis general indignities service or voting public to refrain to have frequently support adoption ^[*] 1987, 52, 58.) country, suggests, From Ballot to Bench judge but time. That would be like asserted are not asked to refrain if Court Justice Otto campaigning, political that their The Politics of openly ^[*] at your prospective judges, the he or she questions at been made. D.C. Heath uncertainty, public Judicial and no gone named. dramatic going effectiveness bathtub. ^[*] are the inconve- to be partisan race, deciding politi- servants. removal hand in hand to be able to of a nonelec- light of direct Reform, citizen candidate’s sufficiently all; of certain campaign It Standing improve- inconve- Judging, to make (Former of their a fash- rather Kaus, of an guar- (cita- has ex- 21.Rather Democratic Quoted Law, types values. taged.” groups tory, gaged determined money, protection, ues in other enced system decision-making, differential; appropriate discretion quired to make and in see the tasks of ty impersonally decision-making appellate impact. dition, more effective of the relevant to transcend mere apply Bathtub?”, underlying questions at Robert or common law political principle majority governed are favored and others society decision-making. In Accordingly, United fixed and (G. judicial Accountability: application than (1976)). facts. making policy White, resolution of legal judge’s personal human decision-makers, 64 Wash.L.Rev. 19 judging F. choices in decision, facts, seeing as one in which States not decision is related this allocation impartially, principles These choices which are Utter, is, enduring The American Judicial Tra- these partisanship; entirely in a democratic of those judgment. in the selection of the representation in some cases, "State opportunity, Is There Crocodile constitutional, choices calling their Like other rule, judges process of wider its principles but in individuals principles inevitably it is judges equity, justice, determination Constitutional "allocate val- attitudes and are judges for more Whether en- judges, precedents, Court, possible disadvan- values pregnant far political political political its abili- are re- liberty, should yet of law statu- other main influ- serve like system choosing judges, beginning I’m would age I’m when at good government. a move the direction of accomplishments, instead of acknowledge my I’ll admit that I’m disparaging them. So many years I have over

proud of what done course) others, try to

(working with Virginia. good government in

build experience, I’m certain that

Based on that

changing Virginia’s current electoral (more) general play significant popularly "a role in held accountable for their deci- process policy making sions. of their state." For reasons, selecting high- these when the state's judges, particularly appropriate est it is However, courts, comparison with trial accountability/independence strike balance courts, especially supreme appellate courts, state accountability. on the side of upon frequently are less called to im- Dubois, “Accountability, Independence Phillip L. rules, procedural plement more narrow fre- Judges: and the Selection of State the Role of questions quently with im- asked to answer Elections,” hand, Popular Judicial 40 S.W.L.J. 38- portance beyond the immediate case discretion, omitted). (footnotes required to exercise more and in

Case Details

Case Name: State Ex Rel. Rist v. Underwood

Court Name: West Virginia Supreme Court

Date Published: Dec 7, 1999

Citation: 524 S.E.2d 179

Docket Number: 26653, 26654

Court Abbreviation: W. Va.