Brady v. Hechler, 17137

CourtSupreme Court of West Virginia
Citation346 S.E.2d 546,176 W.Va. 570
Decision Date12 June 1986
Docket NumberNo. 17137,17137
PartiesOra BRADY v. Ken HECHLER, Secretary of State, Tracy W. Hylton, Janis Davis, William Richmond and Vivian Garland, Ballot Commissioners of Raleigh County, and John S. Lambert, Harold Griffith and Jimmy Graham, Ballot Commissioners of Wyoming County.

Syllabus by the Court

1. "Where a statute provides for a thing to be done in a particular manner or by a prescribed person or tribunal it is implied that it shall not be done otherwise or by a different person or tribunal." Syl. pt. 3, State ex rel. Baker v. Bailey, 152 W.Va. 400, 163 S.E.2d 873 (1968).

2. Under W.Va. Code, 3-5-7 [1985], which provides that a person seeking election to an office "to be filled by the voters of more than one county" shall file with the Secretary of State of West Virginia a certificate of candidacy for nomination for such office, it is mandatory that the certificate be filed with the Secretary of State "not later than the first Saturday of February next preceding the primary election day, and must be received before midnight, eastern standard time, of that day or, if mailed, shall be postmarked before that hour."

3. Where the record indicated that a certificate of candidacy for nomination was received by the Secretary of State of West Virginia, or postmarked, after the time required under W.Va. Code, 3-5-7 [1985], for such receipt or postmarking, petitioners, seeking to strike the candidate's name from a primary election ballot, were, in view of the candidate's failure to comply with W.Va. Code, 3-5-7 [1985], entitled to mandamus relief.

William B. McGinley, WVEA, Charleston, for appellant.

Atty. Gen. Charlie Brown, Deputy Atty. Gen. Marianne K. Hoover, Charleston, for Hechler.

File, Payne, Sherer & Brown, E.M. Payne, III, John L. File, Beckley, for Hylton.

McHUGH, Justice:

In this mandamus action, the petitioner, Ora Brady, asked this Court to direct the Secretary of State of West Virginia and the ballot commissioners of the Ninth Senatorial District of West Virginia to strike respondent Tracy W. Hylton's name from the May 13, 1986, primary election ballot as candidate for the nomination of the Democratic Party for the office of Senator of the West Virginia Legislature. The petitioner contended that Hylton failed to timely file with the Secretary of State the certificate of candidacy for nomination required under W.Va. Code, 3-5-7 [1985].

This Court directed the respondents to show cause why relief should not be awarded against them. Subsequently, by order entered on April 16, 1986, we directed the respondent Secretary of State to withdraw his certification of respondent Hylton's candidacy for nomination. W.Va. Code, 3-5-9 [1985]. 1 Furthermore, we directed the respondent ballot commissioners to strike Hylton's name from the primary election ballot in the Ninth Senatorial District.

In this opinion, we set forth our reasoning for the relief granted to the petitioner. This Court has before it the petition, the order of April 16, 1986, all other matters of record and the argument and memoranda of law of the parties.

I

The petitioner was a resident and registered voter of the Ninth Senatorial District. That district is made up of Wyoming County, West Virginia, and a portion of Raleigh County, West Virginia. W.Va. Code, 1-2-1(d)(9) [1982]. Hylton sought the nomination of the Democratic Party for the State Senate from that district.

The primary election, at which Hylton sought to be nominated, took place on May 13, 1986. Pursuant to W.Va. Code, 3-5-7 [1985], Hylton was required to file with the Secretary of State a certificate declaring himself a candidate for the nomination. That statute further provides: "Such certificate shall be filed with the secretary of state ... not later than the first Saturday of February next preceding the primary election day, and must be received before midnight, eastern standard time, of that day or, if mailed, shall be postmarked before that hour." 2

Pursuant to W.Va. Code, 3-5-7 [1985], it was mandatory that Hylton's certificate of candidacy for nomination be received by the Secretary of State, or postmarked, before midnight, Saturday, February 1, 1986.

According to affidavits filed on behalf of Hylton, it is claimed that on February 1, 1986, in Beckley (Raleigh County), West Virginia, Hylton handed to a postal clerk at the United States Post Office an envelope addressed to the Secretary of State which purportedly contained Hylton's certificate of candidacy for nomination. It is asserted that Hylton informed the clerk that he wanted the envelope postmarked that day. It is further asserted that the clerk responded that the envelope would be postmarked that day. Moreover, it is claimed that the envelope was sent by postal authorities to Charleston, West Virginia, and then postmarked. We find that an envelope was delivered to the Secretary of State bearing a postmark of February 2, 1986.

The Secretary of State certified Hylton's candidacy for State Senate. As the record indicates, Hylton's name was placed upon the primary election ballot in the Ninth Senatorial District.

II

As stated in annot., 72 A.L.R. 290 (1931): "It is generally and almost universally held that statutory provisions in election statutes, requiring that a certificate or application of nomination be filed with a specified officer within a stipulated period of time, are mandatory." That principle is exemplified by the holdings of this Court in State ex rel. Baker v. Bailey, 152 W.Va. 400, 163 S.E.2d 873 (1968), and State ex rel. Vernet v. Wells, 87 W.Va. 275, 104 S.E. 591 (1920).

In Baker, vacancies occurred in three senatorial districts, after a primary election, in the nomination of the Republican Party for the office of Senator of the West Virginia Legislature. As a result, party officials filed certificates of nomination with the Secretary of State of West Virginia in an attempt to place candidates upon the ballot for the general election. Inasmuch as the certificates of nomination were not filed by the executive committee or chairman "of the political party for the political division in which the vacancy occurs ...," the certificates were filed with the Secretary of State in violation of the provisions of W.Va. Code, 3-5-19 [1963]. (emphasis added) Accordingly, party officials filed "amended" certificates of nomination. However, the amended certificates were not filed within the time, prior to the general election, specified by the statute, W.Va. Code, 3-5-19 [1963].

In awarding mandamus relief to certain citizens and taxpayers of the senatorial districts in question, this Court, in Baker, directed that the names of the persons attempted to be so nominated be omitted from the general election ballot. In so holding, this Court stated: "The legislature has fixed the time in which the proper committees can fill vacancies which may occur in party nominations of candidates for offices caused by death, withdrawal or failure to make a nomination and this Court can not change the provisions of the statute...." 152 W.Va. at 407, 163 S.E.2d at 877. Moreover, syllabus point 3 of Baker states: "Where a statute provides for a thing to be done in a particular manner or by a prescribed person or tribunal it is implied that it shall not be done otherwise or by a different person or tribunal."

Similarly, in State ex rel. Vernet v. Wells, the "petitions or certificates of nomination" of certain candidates for county office were filed "more than two months after expiration" of the time required by law, with regard to nominations made after primary elections. Consequently, the names of those candidates were ordered by this Court, in a mandamus proceeding, to be omitted from the general election ballot. Syllabus point 1 of Vernet states: "Ballot commissioners cannot lawfully place on any ticket, the name of any person to be voted for in an election, who has not been nominated agreeably to law."

See also State ex rel. Hott v. Ewers, 106 W.Va. 18, 144 S.E. 578 (1928), and State ex rel. Lewis v. Board of Ballot Commissioners, 82 W.Va. 645, 96 S.E. 1050 (1918), which cases indicate that the provisions of W.Va. Code, 3-5-7 [1985] are mandatory.

Consistent with the above is the decision of the Supreme Court of Wisconsin in State ex rel. Ahlgrimm v. State Elections Board, 82 Wis.2d 585, 263 N.W.2d 152 (1978). In Ahlgrimm, a candidate for circuit judge failed to timely file with the State Elections Board his "nomination papers" with regard to the "spring election" to be held in April, 1978. The filing deadline, established by statute, was January 17, 1978. Even though there were no other candidates for that judgeship, and the candidate had timely filed his nomination papers in the wrong office (a circuit clerk's office, rather than with the State Elections Board), the Supreme Court of Wisconsin refused to order that the candidate's name be placed upon the ballot. The court, in Ahlgrimm, stated:

Because the petitioner did not file his nomination papers with the Board until February 3, 1978, he did not timely file. If the nomination papers are not timely filed, the proposed candidate is not entitled to have his name printed on the ballot.

Filing deadlines have consistently been treated as mandatory by this court. For example, in State ex rel. Stearns v. Zimmerman, 257 Wis. 443, 43 N.W.2d 681 (1950), this court held that where a candidate for the United States Senate did not file his nomination papers in the Secretary of State's Office or present them for filing until after the 5:00 p.m. deadline (he tendered the papers at 5:02 p.m.), he was properly denied a place on the ballot. We reiterated that filing deadlines for nomination papers must be strictly observed. Id. at 445 . Moreover, this court rejected the candidate's claim that the then statutory counterpart to sec. 5.01(1), Stats., calling for...

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