Burkhart v. Sine
| Decision Date | 19 June 1997 |
| Docket Number | 23975,Nos. 23974,s. 23974 |
| Citation | 489 S.E.2d 485,200 W.Va. 328 |
| Court | West Virginia Supreme Court |
| Parties | Robert L. BURKHART, Appellant, v. Honorable Virginia M. SINE, Circuit Clerk of Berkeley County; Howard Strauss; D. Wayne Dunham, County Commissioner of Berkeley County; Robert S. Butler and John E. Wright, Appellees. Robert L. BURKHART, Appellee, v. Honorable Virginia M. SINE, Circuit Clerk of Berkeley County; Howard Strauss; D. Wayne Dunham, County Commissioner of Berkeley County; Robert S. Butler and John E. Wright, Appellees, and Howard Strauss, Respondent Below, Appellant. |
Syllabus by the Court
1. ." Syllabus Point 2, Adkins v. Smith, 185 W.Va. 481, 408 S.E.2d 60 (1991).
2. ." Syllabus Point 3, Adkins v. Smith, 185 W.Va. 481, 408 S.E.2d 60 (1991).
3. In accordance with W.Va.Code § 3-5-4 and Article IX, § 10 of the West Virginia Constitution, a member of the County Commission is deemed to be elected from the magisterial district in which that person resides on the day that person is elected to serve on the County Commission, that is, the date of the general election. Absent unusual circumstances, a candidate generally resides in the same district on the date of filing in which he or she resides on the date of the election; therefore, a candidate carries that residence with him or her throughout the entire term.
4. In a situation where a candidate for County Commission contests the qualifications of another candidate pre-election in a mandamus proceeding, the litigation is not governed by the procedure provided in W.Va.Code §§ 3-7-6 and 3-7-7. If one candidate is found to be disqualified and the other candidate is in all respects qualified, the qualified candidate is entitled to fill the open seat on the County Commission.
Douglas S. Rockwell, Steptoe & Johnson, Charles Town, and Ancil G. Ramey, Steptoe & Johnson, Charleston, for Burkhart.
Patrick G. Henry, IV, Henry, Grant, Taylor & Janelle, Martinsburg, for Sine, Butler and Wright.
Richard G. Gay, Berkeley Springs, for Strauss.
Charles S. Trump, IV, Trump & Trump, Berkeley Springs, for Dunham.
Norwood Bentley, III, Bowles, Rice, McDavid, Graff & Love, Martinsburg, for Amicus Curiae, The Berkeley County Commission.
This is an appeal from a mandamus action which originated in the Circuit Court of Berkeley County, West Virginia, by Robert L. Burkhart, who is a candidate for the office of County Commissioner on the Democrat ticket. Burkhart requests that Howard L. Strauss, a candidate for the office of County Commissioner on the Republican ticket, be determined to be ineligible to serve as a County Commissioner from the Norborne Magisterial District. Strauss cross-appeals, requesting that the stay issued by this Court, denying him the right to take the oath of office, be lifted and that he be allowed to assume a seat on the Berkeley County Commission. The circuit court did not declare Strauss ineligible nor rule that D. Wayne Dunham, elected in 1994, should be removed from office. The court did declare that Burkhart was a proper candidate for the Democrat party from Valley Magisterial District. These cases have been consolidated on appeal. We agree with Burkhart that Strauss should be disqualified as a candidate and, therefore, reverse the decision of the Circuit Court of Berkeley County.
On May 13, 1997, this Court entered an order reversing the circuit court and remanding the case with directions to issue a mandamus order declaring that Strauss is ineligible to serve and that Burkhart is entitled to the seat on the County Commission. We indicated in the May 13, 1997 order that this opinion would follow, setting forth the reasons for this Court's decision.
In January 1994, D. Wayne Dunham filed for the office of County Commissioner from Valley Magisterial District (Valley) in Berkeley County, West Virginia. He was, at that time, a resident of Valley and filed as a member of the Republican Party. In May 1994, while continuing to reside in Valley, Dunham won the Republican nomination. On July 14, 1994, the County Commission redistricted the county as a consequence of the current census results. The redistricting moved the precinct boundary lines, placing Dunham in the Norborne Magisterial District (Norborne). The Berkeley Magisterial Districts now include Norborne Magisterial District, Adam Stephen Magisterial District, Potomac Magisterial District, Tuscarora Magisterial District, Shenandoah Magisterial District, and Valley Magisterial District.
On November 8, 1994, Dunham was elected to serve as a County Commissioner for a full term of six years. The election ballot listed him as a resident of Valley, even though because of the redistricting, he was at that time, a resident of Norborne. There is no question the ballot contained a mistake. Dunham contends he learned, for the first time in December 1995, that he no longer resided in Valley but that he was at that time a resident of Norborne.
The opening and closing filing dates for candidates in the 1996 primary election were January 8, 1996 and February 3, 1996, respectively. However, due to a blizzard, the Berkeley County Courthouse was closed from January 8, 1996 until January 15, 1996. The courthouse was also closed on January 15, 1996 to observe Martin Luther King, Jr. Day. Consequently, the first day candidates could file for office was January 16, 1996. On that date, Howard L. Strauss filed to run as a Republican candidate for the office of County Commissioner from the "open" district of Norborne. Also on that date, Robert L. Burkhart filed to run as a Democrat candidate for the office of County Commissioner from Valley.
After Dunham became aware he was a Norborne resident, he made a decision to move to rental property he owned in Valley. He contends he had long-standing plans to build a new house in Valley, but he was also aware that if Burkhart was elected from Valley, he would either have to abandon his plans to build the new house in Valley and remain in Norborne or give up his seat on the Commission. He believed that no two Commissioners could be elected from the same magisterial district. Dunham sought the advice of counsel, who sought the advice of the Secretary of State. He states that he followed the advice he received by filing a written announcement with the Clerk of the Circuit Court of Berkeley County. This announcement indicated his intention to immediately move to Valley. On January 6, 1996, the Martinsburg Journal, a newspaper of general circulation, carried a front-page story which contained the announcement. Then, on January 16, 1996, Dunham went to the office of the Clerk of the Berkeley County Commission and changed his address on his voter's registration to the address of the rental property he owned in Valley. He moved into the rental property on January 25, 1996.
The primary election was held on May 14, 1996. Burkhart won the Democratic nomination from Valley, and Strauss won the Republican nomination from Norborne. On July 5, 1996, Burkhart petitioned this Court for a writ of mandamus, requesting that a rule to show cause issue, removing Strauss from the ballot and declaring Dunham ineligible to sit in the Valley district. This Court refused to issue the writ, but referred the matter to the circuit court.
On July 15, 1996, Burkhart filed a petition in circuit court, requesting that Strauss be declared disqualified as the Republican nominee for the County Commission, or, in the alternative, that Dunham be declared to have forfeited and surrendered his seat on the County Commission by moving from Norborne to Valley. The circuit court, following a hearing on the case, entered an order on September 26, 1996. The court found that "Norborne became an open district when D. Wayne Dunham reestablished his residency in Valley District." As a result, the court denied Burkhart's request to disqualify Strauss as a candidate. The court determined that the issue of whether Dunham forfeited his seat on the Commission was not properly before the court, by concluding "[t]he issue ... generally affects all residents of Berkeley county--but the issue directly affects Howard Strauss, the Berkeley County Republican party, and the other Republican candidates for Commissioner and they have not raised the issue." The court also concluded Burkhart had a constitutional right to be a candidate for Commissioner on the date he filed the certificate of candidacy and on the date of the primary election.
Thereafter, on October 8, 1996, Strauss filed a petition for a writ of prohibition and/or mandamus with this Court, which was denied. The general election was held in November 1996. The voters of Berkeley County elected Strauss to fill the open seat on the County Commission. Burkhart then filed a petition for appeal with this Court, seeking review of the circuit court's September 26, 1996 order. Burkhart also sought a stay of the administration of the oath of office to Strauss. This Court granted both requests. Strauss also filed a petition for appeal, which was...
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