State ex rel. Alsop v. McCartney

• Decision Date: 28 September 1976
• Docket Number: No. 13755,13755
• Citation: 228 S.E.2d 278,159 W.Va. 829
• Parties: STATE ex rel. Jack ALSOP v. James R. McCARTNEY, Secretary of State of West Virginia and Albert L. Sommerville, Jr.
• Court: West Virginia Supreme Court

Page 278

228 S.E.2d 278

159 W.Va. 829

STATE ex rel. Jack ALSOP v. James R. McCARTNEY, Secretary of State of West Virginia and Albert L. Sommerville, Jr.

No. 13755.

Supreme Court of Appeals of West Virginia.

Sept. 28, 1976.

Syllabus by the Court

1. '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, and this action in mandamus, being a special creation of the evolving common law, is ripe for prosecution immediately upon a candidate's filing of his certificate of candidacy.' Syllabus point 5, State ex rel. Maloney v. McCartney, W.Va., 223 S.E.2d 607 (1976).

2. The 1976 Amendment of W.Va.Code, 51--2--1 providing for the creation of seven new judgeships for eight year terms commencing in January 1977 provides specifically that such new judges shall be elected in November 1976; consequently, for election purposes there will be both vacancies in the offices of the new judgeships to be filled in November 1976 and vacancies in the nominations for such offices to be filled as general law provides.

3. The 1976 Amendment of W.Va.Code, 51--2--1 providing for the creation of seven new judgeships for eight year terms commencing in 1977 is constitutional.

4. Absent independent candidates who present themselves in a timely manner seeking ballot access, this Court will not infer that W.Va.Code, 51--2--1 (1976) will in fact be unconstitutionally applied in the 1976 general election, and as there was an adequate remedy for an independent candidate which this Court could have given, namely ballot access, without invalidating the entire 1976 amendment to W.Va.Code, 51--2--1, under the doctrine of the least obtrusive remedy this Court will not strike down otherwise constitutional legislation when there is an adequate remedy to prevent such legislation from being unconstitutionally applied.

Morton & Garrett, William C. Garrett, Webster Springs, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Charleston, for respondents.

Naaman J. Aldredge, Logan, for amicus curiae.

Fred A. Jesser, III, Fayetteville, for amicus curiae for Fayette County Bar Ass'n.

NEELY, Justice:

This action in mandamus was brought to strike down the procedure used to nominate candidates for seven new judgeships created by the 1976 Amendment to W.Va.Code, 51--2--1. ¹ We deny relief.

On March 17, 1976, during the Regular Session of the West Virginia Legislature the Legislature passed Senate Bill No. 322 adding judgeships to the 7th, 12th, 13th, 14th, 17th, 21st, 25th and 29th Judicial Circuits with eight year terms of office beginning on January 1, 1977. The bill contained a provision to extend the deadline for filing certificates of candidacy until March 30, 1976, because the drafters were aware that the regular deadline for filing would have passed by the time the bill was enacted; however, the vote to make the bill effective from passage, which required the concurrence of two-thirds of the members elected to each house of the Legislature, W.Va. Const., Art. VI, § 30, failed, and as a result Senate Bill No. 322 became effective June 15, 1976, ninety days after its passage and well after the May 11th primary election.

Therefore, vacancies in the nominations for the additional judgeships could be filled only as general law provided at the time Senate Bill No. 322 became effective. It was determined by the Honorable J. C. Dillon, Jr., Chairman of the West Virginia State Democratic Executive Committee that the proper method for filling the vacancies in the nominations would be for Judicial Circuit Committees to meet in convention and select nominees, as provided in W.Va.Code, 3--10--3 (1967). ²

On July 23, 1976 the 14th Judicial Circuit Committee met in convention, pursuant to a call by the duly appointed chairman and selected Mr. Albert L. Sommerville, Jr., as the Democratic nominee for the additional judgeship of the 14th Judicial Circuit. The committee noted the outcome of its convention in a duly certified resolution, which was transmitted to the respondent Secretary of State. Upon the respondent Secretary's receipt of both the resolution and Mr. Sommerville's filing fee, the Secretary wrote a letter to the chairman of the 14th Judicial Circuit Convention in which he signified his intent to accept Mr. Sommerville's nomination and to certify Mr. Sommerville's candidacy to the circuit clerks of the counties comprising the 14th Judicial Circuit.

On July 27, 1976 petitioner Jack Alsop filed his petition for a writ of mandamus in this Court, representing that he is a resident of Webster County, a registered voter of that county, a taxpayer of the State of West Virginia, and a resident of the 14th Judicial Circuit, which is composed of Braxton, Clay, Gilmer, and Webster Counties. Mr. Alsop described the manner in which respondent Sommerville was nominated for the additional 14th Circuit judgeship, and prayed that this Court enter an order requiring that the Secretary of State not certify Mr. Sommerville's nomination.

On September 7, 1976, the case was heard upon the petition, the memorandum in support of the petition, the briefs of petitioner and respondent McCartney, and the brief of Naaman J. Aldredge, Amicus curiae. It became apparent to this Court that certain constitutional issues were not fully briefed and argued, and accordingly an order was entered requiring the parties to file supplemental briefs and to argue the case again on September 14, 1976. After reargument on that date the case was submitted for decision upon all of the original papers, together with the supplemental briefs of petitioner, respondent McCartney, Naaman J. Aldredge, and the brief of the Fayette County Bar Association, Amicus curiae.

Originally the petitioner in this case limited his challenge to the question of whether a nomination may be made in the same way for a newly-created office as for an existing office that becomes vacant. He alleged that since there will be no additional 14th Circuit judgeship until January 1977, there is currently no vacancy to be filled. Although the petitioner's challenge was limited, the Court perceived that any decision it made validating any aspect of the legislation under review or the procedure used to implement that legislation would be an impediment to future challenges and might have a chilling psychological effect on future litigation of other matters even if the formal requirements for the application of Res judicata were not met. Consequently, the Court determined that it would address itself to this legislation only if all possible challenges to its validity were raised at the same time, and the Court demanded further argument and close scrutiny of the legislation.

I

Experience dictates that there are occasions on which courts must undertake something in the nature of advisory opinions. We have done this in cases involving elections because of the expense attendant upon campaigns and the deleterious effect on representative government which uncertainty in elections causes. State ex rel. Maloney v. McCartney, W.Va., 223 S.E.2d 607 (1976). Similarly we have rendered essentially advisory opinions when it was necessary to permit bond counsel to authorize the marketing of bonds for public authorities. State ex rel. City of Charleston v. Coghill, W.Va., 207 S.E.2d 113 (1973). The need for certainty before the investment of enormous amounts of human effort and before the investment of vast sums of money has led us to an Ad hoc reappraisal of the common law requirement of a true adversary 'case or controversy' as a condition precedent to court review.

Nonetheless, before this Court will undertake to adjudicate any matter directly affecting the public in general or groups, classes, and interests both unknown and unknowable, it must appear conclusively that every issue which could be raised in a proceeding to settle rights was raised and that those undertaking to perform the role of devil's advocate in a proceeding of this nature, which is in no way 'adversary' in the conventional sense of a case or controversy, have pursued their task with greater than average diligence and in the utmost good faith. In addition, in cases which are primarily concerned with a declaration of rights, the Court retains the prerogative to raise related issues on its own initiative and to demand as a condition precedent to a formal decision that the issues which it has raised be briefed and argued.

II

In its present posture the challenge to Sommerville's nomination involves basically two issues. The first is whether Senate Bill No. 322 was effective in creating an opening for an additional 14th Circuit judge which can be filled at this fall's general election. The second issue is whether the bill can withstand constitutional attack for invidiously discriminating against independent candidates in the 1976 general election.

Petitioner's argument on the first issue is that no vacancy currently exists in the office of the additional 14th Circuit judgeship, since the term of office does not commence until January 1, 1977, as provided by Senate Bill No. 322. Therefore, it is argued, no action can be taken to fill the office until after December 31, 1976, when the vacancy in office will first occur. This argument finds some support in W.Va.Code, 3--10--3 (1967) ³ which establishes the procedures for filling vacancies in various state and federal offices, including circuit judgeships. Code, 3--10--3 obviously contemplates a situation in which the vacancy to be filled is for an already existing office with a determinate unexpired term....