State ex rel. Biafore v. Tomblin, No. 16–0013.

CourtSupreme Court of West Virginia
Writing for the CourtWorkman, Justice
Citation782 S.E.2d 223
Parties STATE of West Virginia ex rel. Belinda BIAFORE, Chair of the West Virginia State Democratic Committee; and Stephen Davis, Linda Klopp, David Thompson, Linda Phillips, Stephen Evans, and Patricia Blevins, Members of the West Virginia Democratic Executive Committee for the Ninth Senatorial District, Petitioners v. Earl Ray TOMBLIN, Governor of the State of West Virginia; and Beverly R. Lund, Justin M. Arvon, Sue "Naomi" Cline, Tony Paynter, John Doe, and Jane Doe, Members of the West Virginia Republican Executive Committee for the Ninth Senatorial District, Respondents and State of West Virginia, by its Attorney General Patrick Morrisey, Intervenor.
Decision Date22 January 2016
Docket NumberNo. 16–0013.

782 S.E.2d 223

STATE of West Virginia ex rel. Belinda BIAFORE, Chair of the West Virginia State Democratic Committee; and Stephen Davis, Linda Klopp, David Thompson, Linda Phillips, Stephen Evans, and Patricia Blevins, Members of the West Virginia Democratic Executive Committee for the Ninth Senatorial District, Petitioners
v.
Earl Ray TOMBLIN, Governor of the State of West Virginia; and Beverly R. Lund, Justin M. Arvon, Sue "Naomi" Cline, Tony Paynter, John Doe, and Jane Doe, Members of the West Virginia Republican Executive Committee for the Ninth Senatorial District, Respondents
and
State of West Virginia, by its Attorney General Patrick Morrisey, Intervenor.

No. 16–0013.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 2016.
Decided Jan. 22, 2016.


Anthony J. Majestro, Esq., Powell & Majestro, PLLC, Charleston, WV, for Petitioners, West Virginia Democratic Executive Committee for the Ninth Senatorial District.

782 S.E.2d 226

Peter G. Markham, Esq., General Counsel, Office of Governor Earl Ray Tomblin Charleston, WV, for Respondent Governor Tomblin.

Vincent Trivelli, Esq., The Law Office of Vincent Trivelli, PLLC, Morgantown, WV, Thomas Patrick Maroney, Esq., Maroney, Williams, Weaver & Pancake PLLC, Charleston, WV, for Amicus Curiae, West Virginia State Building and Construction Trades Council, AFL–CIO and the Affiliated Construction Trades Foundation.

J. Mark Adkins, Esq., Patrick C. Timony, Esq., Bowles Rice LLP, Charleston, WV, for Beverly R. Lund, Justin M. Arvon, Sue "Naomi" Cline, and Tony Paynter.

Mark A. Carter, Esq., Dinsmore & Shohl LLP, Charleston, WV, for Beverly R. Lund, Justin M. Arvon, Sue "Naomi" Cline, and Tony Paynter.

Patrick Morrisey, Esq., Attorney General, Elbert Lin, Esq., Solicitor General, J. Zak Ritchie, Esq., Assistant Attorney General, Charleston, WV, for Intervenor State of West Virginia.

John M. Canfield, Esq., Vice President & Counsel for Amicus Curiae, West Virginia Chamber of Commerce, Charleston, WV, Jeffrey M. Wakefield, Esq., Wesley P. Page, Esq., Keith R. Hoover, Esq., Flaherty Sensabaugh & Bonasso., for Amicus Curiae, William P. Cole, III, President of the West Virginia Senate.

Workman, Justice:

On January 8, 2016, the petitioners, Belinda Biafore, Chair of the West Virginia State Democratic Executive Committee, and the members of the West Virginia Democratic Executive Committee for the Ninth Senatorial District (hereinafter "petitioners"), petitioned this Court, requesting the issuance of a writ of mandamus against the respondents, Governor Earl Ray Tomblin and members of the West Virginia Republican Executive Committee for the Ninth Senatorial District (hereinafter "respondents"). Through this request for extraordinary relief, the petitioners seek to compel Governor Tomblin to fill the current vacancy in the West Virginia Senate from a list of three candidates to be selected by the petitioners.

On January 11, 2016, the respondent, Governor Tomblin, filed a summary response to the petition. The respondent members of the West Virginia Republican Executive Committee for the Ninth Senatorial District filed a response in opposition to the petition on January 12, 2016. West Virginia Attorney General Patrick Morrisey filed an intervenor's brief.

On January 13, 2016, this Court issued a rule to show cause and ordered the respondents to show cause, if any, why a writ of mandamus should not be awarded as requested by the petitioners. Oral argument was conducted on January 19, 2016.1

I. Factual and Procedural History

Daniel Jackson Hall was elected to the West Virginia Senate in the 2012 general election as the Democratic senator in the Ninth Senatorial District. In November 2015, Senator Hall changed parties and became a Republican. On December 29, 2015, Senator Hall announced his resignation from the Senate, effective January 3, 2016, which created the vacancy at the center of this dispute. An immediate discussion ensued regarding whether Governor Tomblin was required to replace Senator Hall with a Democrat or a Republican.

On January 5, 2016, Attorney General Patrick Morrissey issued an opinion of the Attorney General concluding that Governor Tomblin was required to replace Senator Hall with a Republican from one of three names submitted by the respondent members of the West Virginia Republican Executive Committee for the Ninth Senatorial District, pursuant to the provisions of West Virginia Code § 3–10–5(2013).

In the Petition for Writ of Mandamus currently before this Court, the petitioners contend West Virginia Code § 3–10–5is ambiguous and should be interpreted to preserve the mandate of the voters when a legislative vacancy occurs. Because the voters of the Ninth Senatorial District elected Senator Hall as a Democrat, the petitioners argue the

782 S.E.2d 227

voters' mandate can best be preserved by interpreting the statute to require Governor Tomblin to appoint a Democrat from the three names to be submitted by the petitioners.

II. Mandamus

This Court has consistently held "[m]andamus is a proper remedy to require the performance of a nondiscretionary duty by various governmental agencies or bodies." Syl. Pt. 1, State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W.Va. 207, 151 S.E.2d 102 (1966). Generally,

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 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).

Cognizant of the need for alacrity in matters affecting the right to political office, this Court has recognized that "[i]n West Virginia a special form of mandamus exists to test the eligibility to office of a candidate in either a primary or general election." Syl. Pt. 5, in part, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976). In special mandamus election cases, "[b]ecause there is an important public policy interest in determining the qualifications of candidates in advance of an election, this Court does not hold an election mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus case." Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979). In that same vein, we have explained that "when a writ of mandamus has been invoked to preserve the right to vote or to run for political office ... this Court has eased the requirements for strict compliance for the writ's preconditions, especially those relating to the availability of another remedy." Syl. Pt. 3, in part, State ex rel. Sowards v. Cty. Comm'n of Lincoln Co., 196 W.Va. 739, 474 S.E.2d 919 (1996).

Applying these principles to this matter, we view the vacancy created by Senator Hall's departure as properly the subject of a writ of mandamus.

III. Discussion

The case sub judice requires the application of settled principles of statutory application under which this Court must first determine whether the statutory text is plain and unambiguous. See U.S. v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). We have uniformly adhered to the principle that where a statute is plain and unambiguous, it is the clear and unmistakable duty of the judiciary to merely apply the language. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010); Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970); Hood v. City of Wheeling, 85 W.Va. 578, 102 S.E. 259 (1920); Wellsburg and State Line R.R. Co. v. Panhandle Traction Co., 56 W.Va. 18, 48 S.E. 746 (1904). If the statutory text is clear and unambiguous, we must apply the statute according to its literal terms. See, e.g., Dodd v. U.S., 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005).

In State of West Virginia v. Continental Casualty Co., 130 W.Va. 147, 42 S.E.2d 820 (1947), this Court further elucidated this principle:

When a statute is clear and unambiguous, and the legislative intent is plain, the statute should not be interpreted by the courts. 50 Am.Jur., Statutes, Section 225. See State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37 S.E.2d 85. In such case the duty of the courts is not to construe but to apply the statute. In applying the statute its words should be given their ordinary acceptance and significance and the meaning commonly attributed to them. 50 Am. Jur., Section 225. See Moran v. Leccony Smokeless Coal Co., 122 W.Va. 405, 10 S.E.2d 578, 136 A.L.R. 1007[ (1940) ].

130 W.Va. at 155, 42 S.E.2d at 825. In syllabus point two of State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951), the Court reiterated: "A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted

782 S.E.2d 228

by the courts but will be given full force and effect." The Court in Epperly also observed: "In such case the duty of the courts is not to construe but to apply the statute, and in so doing, its words should be given their ordinary acceptance and significance and the meaning commonly attributed to them." Id. at 884, 65 S.E.2d at 492...

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8 practice notes
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 24, 2020
    ...of "this Court's constitutional mandate to apply the laws as written." State ex rel. Biafore v. Tomblin , 236 W. Va. 528, 537, 782 S.E.2d 223, 232 (2016). The duty to reside applies to the constitutional office of the Governor, secretary of state, auditor, treasurer, commissioner of agricul......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • October 11, 2018
    ...Court's inherent duty to neutrally and impartially interpret and apply the law." State ex rel. Biafore v. Tomblin , 236 W. Va. 528, 544, 782 S.E.2d 223, 239 (2016). That is, "[c]ourts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judicia......
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 20, 2020
    ...affirmation of "this Court's constitutional mandate to apply the laws as written." State ex rel. Biafore v. Tomblin, 236 W. Va. 528, 537, 782 S.E.2d 223, 232 (2016). The duty to reside applies to the constitutional office of the Governor, secretary of state, auditor, treasurer, commissioner......
  • State v. Butler, No. 16-0543
    • United States
    • Supreme Court of West Virginia
    • May 9, 2017
    ...or to comment upon the wisdom of the legislation as unambiguously expressed." State ex rel. Biafore v. Tomblin , 236 W.Va. 528, 533, 782 S.E.2d 223, 228 (2016). Accordingly, although we do not comment on whether it would be good or bad policy for the Legislature to amend West Virginia Code ......
  • Request a trial to view additional results
8 cases
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 24, 2020
    ...of "this Court's constitutional mandate to apply the laws as written." State ex rel. Biafore v. Tomblin , 236 W. Va. 528, 537, 782 S.E.2d 223, 232 (2016). The duty to reside applies to the constitutional office of the Governor, secretary of state, auditor, treasurer, commissioner of agricul......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • October 11, 2018
    ...Court's inherent duty to neutrally and impartially interpret and apply the law." State ex rel. Biafore v. Tomblin , 236 W. Va. 528, 544, 782 S.E.2d 223, 239 (2016). That is, "[c]ourts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judicia......
  • State ex rel. Justice v. King, No. 19-1132
    • United States
    • Supreme Court of West Virginia
    • November 20, 2020
    ...affirmation of "this Court's constitutional mandate to apply the laws as written." State ex rel. Biafore v. Tomblin, 236 W. Va. 528, 537, 782 S.E.2d 223, 232 (2016). The duty to reside applies to the constitutional office of the Governor, secretary of state, auditor, treasurer, commissioner......
  • State v. Butler, No. 16-0543
    • United States
    • Supreme Court of West Virginia
    • May 9, 2017
    ...or to comment upon the wisdom of the legislation as unambiguously expressed." State ex rel. Biafore v. Tomblin , 236 W.Va. 528, 533, 782 S.E.2d 223, 228 (2016). Accordingly, although we do not comment on whether it would be good or bad policy for the Legislature to amend West Virginia Code ......
  • Request a trial to view additional results

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