State ex rel. Cohen v. Manchin

• Decision Date: 21 November 1984
• Docket Number: No. 16474,16474
• Citation: 175 W.Va. 525,336 S.E.2d 171
• Parties: STATE of West Virginia ex rel. Robert F. COHEN, Jr. v. A. James MANCHIN, Secretary of State of the State of West Virginia, William T. Brotherton, Jr., Candidate for the office of Justice of the Supreme Court of Appeals of West Virginia, and Joseph P. Condry, Financial Agent for William T. Brotherton, Jr.
• Court: West Virginia Supreme Court

Page 171

336 S.E.2d 171

175 W.Va. 525

STATE of West Virginia ex rel. Robert F. COHEN, Jr. v. A. James MANCHIN, Secretary of State of the State of West Virginia, William T. Brotherton, Jr., Candidate for the office of Justice of the Supreme Court of Appeals of West Virginia, and Joseph P. Condry, Financial Agent for William T. Brotherton, Jr.

No. 16474.

Supreme Court of Appeals of West Virginia.

Nov. 21, 1984.

Concurring in Part and Dissenting in Part July 12, 1985.

Dissenting Opinion Oct. 2, 1985.

Syllabus by the Court

1. Where a motion is made to disqualify or recuse an individual justice of this Court, that question is to be decided by the challenged justice and not by the other members of this Court.

2. "In West Virginia a special form of mandamus exists to test the eligibility to office of a candidate in either a primary or general election. The proper party respondent in such special action in mandamus is the Secretary of State of the State of West Virginia in the case of an office to be filled by the voters of more than one county or the clerk of the circuit court in the case of an office to be filled by the voters of one county." Syllabus Point 5, in part, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607, appeal dismissed sub nom., Moore v. McCartney, 425 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190 (1976).

3. Our election mandamus remedy, resting as it does on the provisions of W.Va.Code, 3-1-45, is available to challenge under W.Va.Code, 3-8-7, the status of a candidate who, it is claimed, has failed to properly file his financial statements.

4. The language in W.Va.Code, 3-8-5, which requires a financial report to set forth "all financial transactions which have taken place by the date of such report," has no definite connection to the filing time provisions in W.Va.Code, 3-8-5. The statute does not state that the date of a financial report shall be a definite date close to or within the mandatory filing period. The statute does not define "the date of such report," but states only the time periods in which the various reports must be filed. As to the phrase, "the date of such report," the statute is ambiguous.

5. "The basic and cardinal principle, governing the interpretation and application of a statute, is that the Court should ascertain the intent of the Legislature at the time the statute was enacted, and in the light of the circumstances prevailing at the time of the enactment." Syllabus Point 1, Pond Creek Pocahontas Co. v. Alexander, 137 W.Va. 864, 74 S.E.2d 590, appeal dismissed, 346 U.S. 803, 74 S.Ct. 36, 98 L.Ed. 334 (1953).

6. Some of the rules of statutory construction that we have utilized are: Effect should be given to the spirit, purpose and intent of the lawmakers without limiting the interpretation in such a manner as to defeat the underlying purpose of the statute. Each word of a statute should be given some effect and a statute must be construed in accordance with the import of its language. Undefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning.

7. There are substantial public policy reasons for requiring candidates and other persons engaged in the political process to file financial reporting forms which we summarize as follows: First, disclosure provides information as to the sources of the candidate's funds and where he spends them, thus, it permits the voter to evaluate the candidate's potential allegiances by being able to identify those who have contributed to his campaign, as well as those who have received money. Second, disclosure also exposes to the light of publicity the large contributions and expenditures, thus, deterring possible corruption and illegal expenditures. Finally, disclosure provides a means of detecting violations of contribution and expenditure limitations.

8. The provisions of W.Va.Code, 3-8-5, relating to the filing of financial reports "setting forth all financial transactions which have taken place by the date of such report," must be taken to mean that the closing dates in Section G of the official reporting form issued by the Secretary of State of the State of West Virginia must be construed to be the date of the report, and such date must be reasonably close to the filing deadline for the particular report.

9. The appointment of a financial agent is recognized in W.Va.Code, 3-8-4; and W.Va.Code, 3-8-7, clearly permits the filing of a financial statement by a candidate's financial agent in lieu of the candidate.

10. Our campaign financial reporting statutes do not require a candidate to file a separate financial statement so long as he utilizes a financial agent who reports all of the contributions and expenditures made for and on behalf of the candidate, including those made by the candidate personally. If the candidate chooses, he may elect to file his personal contributions and expenditures separately by filing his own financial statement.

11. W.Va.Code, 3-8-7, is not violated where a candidate's financial agent files a post-primary financial statement which omits an item of expense and which expense could not have been placed on the pre-primary financial statement because it was incurred less than five days before the primary and a supplemental post-primary statement is filed accounting for that expense.

12. Under State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1973), mandamus does not lie to resolve disputed factual claims involving violations of our election law, particularly where they involve penal statutes in which the burden of proof is beyond a reasonable doubt.

Rebecca Baitty, Charleston, for Relator.

George Bailey, Charleston, for Manchin.

William T. Brotherton III, Charleston, for Brotherton.

MILLER, Justice:

In this mandamus proceeding, we were asked to direct A. James Manchin, the Secretary of State of the State of West Virginia, not to certify William T. Brotherton, Jr., on the November 1984 general election ballot as a candidate for the office of Justice of the Supreme Court of Appeals of West Virginia. The relator, Robert F. Cohen, Jr., is a citizen, taxpayer and legally qualified voter of the State of West Virginia, who contends that the respondent, Mr. Brotherton, has failed to properly file a financial report in compliance with W.Va.Code, 3-8-7. This matter was orally argued on October 2, 1984, and because of the time constraints connected with the ballots for the November election, we issued an order. We ruled against the relator's position and indicated that an opinion would follow explaining the reasons for our order. ¹

I.

Several preliminary matters need to be covered. First, upon the decision of Justice Sam R. Harshbarger to disqualify himself in this case, retired Justice Fred H. Caplan was recalled to participate in this case pursuant to Section 8 of Article VIII of the West Virginia Constitution. ²

Before this case was presented on full argument, the relator filed a motion to disqualify Justice Richard Neely on the ground that he had been successfully nominated in the June primary election as the other Democratic nominee for this Court. The relator asserted that Justice Neely's primary campaign had been in opposition to the campaigns of Justice Harshbarger and Mr. Brotherton and, therefore, Justice Neely's impartiality might reasonably be questioned under Canon 3(C)(1) of the Judicial Code of Ethics. ³

We have established law holding that where a motion is made to disqualify or recuse an individual justice of this Court, that question is to be decided by the challenged justice and not by the other members of this Court. State ex rel. Matko v. Ziegler, 154 W.Va. 872, 873-74, 179 S.E.2d 735, 737 (1971), overruled on other grounds, Smoot v. Dingess, 160 W.Va. 558, 236 S.E.2d 468 (1977). See also Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (Rehnquist, J., memorandum on motion to recuse); Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America, 325 U.S. 897, 65 S.Ct. 1550, 89 L.Ed. 2007 (1945) (Jackson, J., concurring opinion on denial of petition for rehearing); In re Estate of Carlton, 378 So.2d 1212 (Fla.1979), cert. denied sub nom., Hayes v. Rogers, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980); Giuliano v. Wainwright, 416 So.2d 1180 (Fla.Dist.Ct.App.1982); Frank, Commentary on Disqualification of Judges--Canon 3 C, 1972 Utah L.Rev. 377; Frank, Disqualification of Judges, 56 Yale L.J. 605 (1947).

Justice Neely, deeming himself not disqualified, declined to recuse himself.

II.

Although respondents do not question the relator's standing to bring this mandamus action, we touch briefly on our law in this area by referring to State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1973), where standing is discussed at some length. In Booth, a petition for a writ of mandamus was filed in this Court against the Mingo County Board of Ballot Commissioners. It sought to compel the commissioners to omit from the general election ballot the name of a candidate for the office of county assessor. In Booth, we cited Syllabus Point 1 of Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302 (1918), overruled on other grounds, State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1972), where we held:

"A citizen, tax payer and voter has such interest as entitles him to maintain mandamus to compel a board of ballot commissioners to discharge their duties lawfully in respect to the preparation of ballots for a general election."

It should be noted that Booth limited Pack and several of our prior election mandamus cases by holding in Syllabus Point 12 that to the extent that such cases "hold that election mandamus may be employed to vindicate all rights claimed by one aggrieved as a result of the conduct of an election or the procedures used therein, such decisions are expressly disapproved and...