Rogers v. Hechler, 16884

Citation348 S.E.2d 299,176 W.Va. 713
Decision Date09 July 1986
Docket NumberNo. 16884,16884
CourtSupreme Court of West Virginia
PartiesH. John ROGERS v. Ken HECHLER, Secretary of State; Ralph J. Bean, Jr., Chairman, State Election Commission; Allen S. Hammock, Barbara M. Ruley, and Patrick McDonald, Members, State Election Commission.

Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. "Where the right sought to be enforced is a public one, mandamus can be sought by any citizen, taxpayer or voter." Syl. Pt. 3, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981).

3. "Mandamus will not be denied on the ground that there is another remedy unless such other remedy is equally convenient, beneficial, and effective." Syl. Pt. 5, Hardin v. Fogelsong, 117 W.Va. 544, 186 S.E. 308 (1936).

4. "A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty." Syl. pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939).

5. "The word 'shall' in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

6. It is a violation of West Virginia Code § 3-8-9(a) (Supp.1985) for any candidate, financial agent, or treasurer of a political party committee to pay, give, or lend, either directly or indirectly, any money or other thing of value for any election expenses, for any purpose other than those specifically enumerated therein.

7. It is a violation of West Virginia Code § 3-8-9(b) (Supp.1985) for any candidate, financial agent, or treasurer of a political party committee to pay, give or lend, or to incur liability to pay, give, or lend, either directly or indirectly, any money or other thing of value for any election expenses, unless "at a rate and for a total amount which is proper and reasonable and fairly commensurate with the services rendered."

8. In order to achieve compliance with the mandatory duty under West Virginia Code § 3-1A-6 (1979 Replacement Vol.) to promulgate rules and regulations necessary to standardize and make effective the administration of the provisions of the West Virginia Election Code, particularly with respect to the enforcement and administration of West Virginia Code § 3-8-9(b) (Supp.1985), which provides that, "Every liability incurred and payment made shall be at a rate and for a total amount which is proper and reasonable and fairly commensurate with the services rendered," the Secretary of State, after consultation with the State Election Commission, has a mandatory duty to (1) promulgate rules and regulations governing rates of compensation which are proper, reasonable, and fairly commensurate with services rendered candidates, financial agents, or treasurers of political party committees; (2) promulgate rules and regulations governing itemization by providers of the amount and character of services rendered candidates, financial agents, or treasurers of political party committees; and, (3) promulgate rules and regulations governing detailed reporting on campaign financial disclosure forms of the amount and character of services rendered candidates, financial agents, or treasurers of political party committees.

H. John Rogers, New Martinsville, for appellant.

Atty. Gen. Charlie Brown, Asst. Atty. Gen. Marianne K. Hoover, Charleston, for appellee.

McGRAW, Justice:

The petitioner in this mandamus action, H. John Rogers, citizen, taxpayer, and voter, seeks to compel state election officials to promulgate rules and regulations governing campaign expenditures. The respondents are Ken Hechler, Secretary of State; Ralph J. Bean, Jr., Chairman of the State Election Commission; and, Allan S. Hammock, Barbara M. Ruley, and Patrick McDonald, members of the State Election Commission. Following brief discussion of the appropriateness of mandamus, we will address the substantive issues presented.

A threshold issue in any mandamus action is whether it is an appropriate vehicle for the relief sought. The general rule is that, "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969); see also Syl., State ex rel. Ruddlesden v. Roberts, 175 W.Va. 161, 332 S.E.2d 122 (1985); Syl., Oakley v. Gainer, 175 W.Va. 115, 331 S.E.2d 846 (1985); Allen v. Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99, 105 (1984), and cases cited therein; Reed v. Hansbarger, 173 W.Va. 258, 314 S.E.2d 616, 619-20 (1984), and cases cited therein.

With respect to the petitioner's standing to seek enforcement of election laws regarding the promulgation of rules and regulations governing campaign expenditures, this Court held in Syllabus Point 3 of Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981), "Where the right sought to be enforced is a public one, mandamus can be sought by any citizen, taxpayer or voter." See also Smith v. West Virginia State Board of Education, 170 W.Va. 593, 295 S.E.2d 680, 683 (1982); Syl. pt. 1, State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976); State ex rel. Brotherton v. Blankenship, 158 W.Va. 390, 396, 214 S.E.2d 467, 474 (1975); DeLardas v. County Court, 155 W.Va. 776, 779, 186 S.E.2d 847, 850 (1972); Syl. pt. 2, State ex rel. West Virginia Lodge, Fraternal Order of Police v. City of Charleston, 133 W.Va. 420, 56 S.E.2d 763 (1949); Syl. pt. 3, Prichard v. DeVan, 114 W.Va. 509, 172 S.E. 711 (1934); Syl. pt. 2, State ex rel. White v. Mingo County Court, 86 W.Va. 517, 103 S.E. 368 (1920); Syl. pt. 1, Frantz v. Wyoming County Court, 69 W.Va. 734, 73 S.E. 328 (1911); Syl. pt. 2, State ex rel. Matheny v. County Court, 47 W.Va. 672, 35 S.E. 959 (1900); Syl. pt. 3, Spilman v. City of Parkersburg, 35 W.Va. 605, 14 S.E. 279 (1891). Moreover, this Court has consistently recognized the "special public concern with insuring the regularity of elections" and that "citizens, taxpayers and voters have sufficient interest in such matters to bring actions in mandamus to compel election officials to discharge their duties in a lawful and proper manner." State ex rel. Alsop v. McCartney, 159 W.Va. 829, 838 n. 7, 228 S.E.2d 278, 283 n. 7 (1976); see also White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470, 477 (1984); Syl. pt. 1, State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1972); Syl. pt. 1, State ex rel. Baker v. Bailey, 152 W.Va. 400, 163 S.E.2d 873 (1968); Syl. pt. 2, State ex rel. Zickefoose v. West, 145 W.Va. 498, 116 S.E.2d 398 (1960), overruled on other grounds, Syl. pt. 12, State ex rel. Booth v. Board of Ballot Commissioners, supra; Syl. pt. 1, State ex rel. Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302 (1918), overruled on other grounds, Syl. pt. 12, State ex rel. Booth v. Board of Ballot Commissioners, supra; Syl., State ex rel. Heironimus v. Town of Davis, 76 W.Va. 587, 85 S.E. 779 (1915). This special public concern with the integrity of the electoral process is also reflected in West Virginia Code § 3-1-45 (1979 Replacement Vol.), which provides, in pertinent part, that "Any officer or person upon whom any duty is devolved by this chapter, may be compelled to perform the same by writ of mandamus."

With respect to the existence of an adequate alternative remedy, this Court held in Syllabus Point 5 of Hardin v. Fogelsong, 117 W.Va. 544, 186 S.E. 308 (1936), "Mandamus will not be denied on the ground that there is another remedy unless such other remedy is equally convenient, beneficial, and effective." See also West Virginia Citizens Action Group v. Daley, 174 W.Va. 299, 324 S.E.2d 713, 716 (1984); Allen v. Human Rights Commission, 329 S.E.2d at 106, and cases cited therein; Woodruff v. Board of Trustees of Cabell Huntington Hospital, 173 W.Va. 604, 319 S.E.2d 372, 376 (W.Va.1984). The respondents in this case suggest that the relief sought by the petitioner can only be obtained through the Legislature. This Court has repeatedly held, however, that "A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty." Syl. pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939); see also Allen v. Human Rights Commission, 174 W.Va. 147-148, n.10, 324 S.E.2d at 107-08 n. 10, and cases therein; Reed v. Hansbarger, 173 W.Va 262, 314 S.E.2d at 620, and cases cited therein. Such nondiscretionary duties include the promulgation of rules and regulations pursuant to legislative mandate. See, e.g., United Mine Workers of America v. Scott, 173 W.Va. 356, 315 S.E.2d 614, 621-22 (W.Va.1984); County of Ramsey v. Stevens, 283 N.W.2d 918, 924-25 (Minn.1979); Stine v. Kansas City, 458 S.W.2d 601, 609-10 (Mo.Ct.App.1970); Richmond Funeral Directors' Ass'n v. Groth, 202 Va. 792, 797, 120 S.E.2d 467, 471 (1961). The petitioner's contention is that the Legislature has already spoken, but that the respondents are not heeding its call. Therefore, resort to a legislative remedy is not an adequate avenue of relief in this action.

With respect to the ascertainment of the existence of legal duty, one guidepost is unquestionably that, "The word 'shall' in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969); see also Allen v....

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