Adkins v. Smith

• Decision Date: 17 July 1991
• Docket Number: No. 20074,20074
• Citation: 185 W.Va. 481,408 S.E.2d 60
• Court: West Virginia Supreme Court
• Parties: , 69 Ed. Law Rep. 923 Richard L. "Dickie" ADKINS, Appellant Below, Appellee, v. Billy Joe SMITH, Appellee Below, Appellant.

Page 60

408 S.E.2d 60

185 W.Va. 481, 69 Ed. Law Rep. 923

Richard L. "Dickie" ADKINS, Appellant Below, Appellee, v. Billy Joe SMITH, Appellee Below, Appellant.

No. 20074.

Supreme Court of Appeals of

West Virginia.

Submitted May 7, 1991.

Decided July 17, 1991.

Syllabus by the Court

1. "An incumbent member of the board of education elected from one magisterial district cannot change his residence on the filing deadline or thereafter to a second magisterial district and retain his seat on the board to the exclusion of a person who has already filed to run for a vacant seat in the second magisterial district and is elected." Syllabus, Smith v. County Comm'n, 184 W.Va. 328, 400 S.E.2d 572 (1990).

2. "The power of the legislature to regulate the nomination and election of candidates for public office and to prescribe essential qualifications to be possessed by candidates in order to be eligible to be nominated or elected is plenary within constitutional limitations." Syl. Pt. 2, State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966), overruled in part on other grounds in Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979).

3. "The language of the pertinent statute or constitutional provision relating to essential qualifications of candidates for a public office must be regarded by a court as controlling in determining at what time an essential qualification must exist." Syl. Pt. 3, State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966), overruled in part on other grounds in Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979).

4. We overrule Green [v. Jones, 144 W.Va. 276, 108 S.E.2d 1 (1959),] to the extent that it permits a candidate residing in District X to file for a position on a county board of education while two or more incumbents who are to remain on the board are also residents of District X.

5. An individual's residency, for purposes of ascertaining his qualification to hold membership on a local board of education shall be determined on the basis of the magisterial district in which the individual resides when he files his candidacy for election to said position.

Gretchen O. Lewis, Williamson, for appellee.

Charles H. Damron, Leon, James M. Casey, Pt. Pleasant, for appellant.

WORKMAN, Justice:

This is an appeal by Billy Joe Smith from a final order of the Circuit Court of Lincoln County dated January 23, 1991. The appellant contends that the lower court erred by reversing a decision of the Lincoln County Board of Canvassers (hereinafter referred to as Board of Canvassers) and declaring that the appellee was entitled to a seat on the Lincoln County Board of Education (hereinafter referred to as Board of Education). We agree with the contentions of the appellant and reverse the decision of the Circuit Court of Lincoln County.

The appellant was a candidate for election to the Lincoln County Board of Education at the May 8, 1990, primary election. Two open full-term seats and a brief unexpired term were available. Among the candidates running for this position, the individuals receiving the highest number of votes, respectively, included Dr. Charles Vance, residing in Laurel Hill District, the appellee Richard "Dickie" Adkins, residing in Laurel Hill District, and the appellant Billy Joe Smith, residing in Duval District. One incumbent Board member, George Chapman, also resided in Laurel Hill District. Pursuant to W.Va.Code § 3-5-6 (1990),

no more than two ... members [of a local board of education] shall be elected from the same magisterial district, and then only when such magisterial district does not have a holdover member of said board, and if such magisterial district has one holdover member on said board only one member shall be elected as aforesaid; and if more persons from a magisterial district receive the highest number of votes in said election, then of such persons only the person or persons having the highest vote who do not make the aggregate number of elected members and holdover members more than two from such magisterial district shall be declared elected, and the remaining members shall be declared from the highest from other magisterial districts; and in no event shall any member be declared elected from the same magisterial district wherein reside two already elected or otherwise qualified members of such board who will continue to hold office after the beginning of the term for which such election was held.

In Sturm v. Henderson, 176 W.Va. 319, 342 S.E.2d 287 (1986), the constitutionality of the W.Va.Code § 3-5-6 requirement that no more than two members of a county board of education "shall be elected from the same magisterial district" was challenged. We held that those limiting provisions of W.Va.Code § 3-5-6 and § 18-5-1, also limiting the consistency of the board to two members from the same magisterial district, were in conflict with W.Va. Const., art. IV, §§ 4 and 8 concerning the qualifications of candidates for certain public offices. Sturm, 176 W.Va. at 323, 342 S.E.2d at 292 and Syl. Pt. 2. In apparent response to Sturm, an amendment to W.Va. Const. art. XII, § 6 was proposed by House Joint Resolution No. 6, Second Extraordinary Session of 1986, and ratified on November 4, 1986. Prior to the amendment, Section 6 had provided as follows: "The school districts into which any county is now divided shall continue until changed in pursuance of law." Subsequent to that amendment, the full text of the West Virginia Constitution, art. XII, § 6 provides as follows:

The school districts into which the state is now divided shall continue until changed pursuant to act of the Legislature: Provided, That the school board of any district shall be elected by the voters of the respective district without reference to political party affiliation. No more than two of the members of such board may be residents of the same magisterial district within any school district.

Based upon the provisions of W.Va.Code § 3-5-6 and Article XII, Section 6 of the West Virginia Constitution and due to Mr. Chapman's incumbent position from Laurel Hill District, only one of the candidates residing in Laurel Hill District could be elected as a member of the board of education in May 1990.

The election was held on May 8, 1990, and the certification of the election was held on May 29, 1990. Between those two dates, on or about May 19, 1990, the appellee moved his residence to Sheridan District. In certifying winners of the election, the Board of Canvassers recognized Laurel Hill District as the appellee's residency and concluded that Dr. Vance, Laurel Hill District, and the appellant, Duval District, were entitled to seats on the Board of Education. The Board of Canvassers determined that the appellee was not entitled to a seat on the Board of Education due to his residency in Laurel Hill District at the time of the election.

The appellee contested the decision of the Board of Canvassers, and facts were stipulated at a hearing held on June 21, 1990. The appellee had been awarded the unexpired term consisting of approximately three weeks in June 1990. The Board of Canvassers reasoned that the appellee was entitled to that unexpired term as the second highest vote-getter, but could only serve until the beginning of the full term when Dr. Vance, receiving the highest number of votes, would join the incumbent Mr. Chapman as the two members from Laurel Hill District. ¹

The appellee appealed the decision of the Board of Canvassers to the Lincoln County Circuit Court. Argument was held on December 7, 1990, before the Honorable W. Jack Stevens based upon the facts as stipulated by the parties. The lower court reversed the Board of Canvassers and declared the appellee the winner of the seat on the Board of Education, by order dated January 23, 1991. The lower court reasoned that the appellee had received a greater number of votes than the appellant and that the electorate's will was the "American way of conducting elections." We granted a stay of that order and subsequently granted this appeal.

In Smith v. County Comm'n, 184 W.Va. 328, 400 S.E.2d 572 (1990), we encountered a situation wherein an incumbent member of the McDowell County Board of Education had changed his residence after the close of the filing period for the Board of Education election. Smith, 184 W.Va. at 329, 400 S.E.2d at 573. Due to the incumbent's move into Browns Creek District, a candidate from Browns Creek District who had filed his candidacy prior to the incumbent's change of residence was disqualified. Id. 184 W.Va. at 330, 400 S.E.2d at574. While the factual scenarioin the present case differs substantially, Smith is instructive regarding the manner in which changes of residency after the filing deadline shall be viewed. In the syllabus point of Smith, we held the following:

An incumbent member of the board of education elected from one magisterial district cannot change his residence on the filing deadline or thereafter to a second magisterial district and retain his seat on the board to the exclusion of a person who has already filed to run for a vacant seat in the second magisterial district and is elected.

Id. 184 W.Va. at 328, 400 S.E.2d at572.

While our decision in Smith was based, in part, upon the fundamental right to become a candidate for office, we also attached great emphasis to the filing deadline as the relevant date upon which residency qualifications are established for the approaching election. Id. 184 W.Va. at 3 29, 400 S.E.2d at 572-73.

In the present case, we find that the lower court erred in declaring that the appellee was the rightful occupant of the Board of Education position. The appellee filed his candidacy for a seat on the Board of Education in Laurel Hill District, he was placed on the ballot from Laurel Hill District, he campaigned from Laurel Hill District, and he was twice published on a sample newspaper ballot from Laurel Hill District. ² The appellee...