State ex rel. Carenbauer v. Hechler

• Decision Date: 31 March 2000
• Docket Number: No. 27458.,27458.
• Citation: 208 W.Va. 584,542 S.E.2d 405
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. George E. CARENBAUER, Petitioner, v. Honorable Ken HECHLER, Secretary of State of West Virginia, and the Honorable Warren R. McGraw, Justice of the Supreme Court of Appeals of West Virginia, Respondents.

542 S.E.2d 405

208 W.Va. 584

STATE of West Virginia ex rel. George E. CARENBAUER, Petitioner, v. Honorable Ken HECHLER, Secretary of State of West Virginia, and the Honorable Warren R. McGraw, Justice of the Supreme Court of Appeals of West Virginia, Respondents.

No. 27458.

Supreme Court of Appeals of West Virginia.

Submitted March 17, 2000.

Decided March 31, 2000.

Dissenting Opinion of Justice Starcher December 14, 2000.

George E. Carenbauer, Charleston, for Petitioner, Pro Se.

James M. Sprouse, Union, Rebecca A. Baitty, Sarasota, FL, for Respondent McGraw.

Darrell V. McGraw, Jr., Attorney General, Robert D. Williams, Assistant Attorney General, Charleston, for Respondent Hechler, Secretary of State of West Virginia.

Rudolph L. diTrapano, Charleston, Amicus Curiae.

SCOTT, Justice.

Relator George E. Carenbauer¹ seeks a writ of mandamus to have Respondent, the Honorable Warren R. McGraw, declared ineligible as a candidate for election to a separate twelve-year term on this Court.² As grounds for the extraordinary relief sought, Relator asserts that Justice McGraw fails to qualify as an eligible candidate for office due to his status as an incumbent currently fulfilling an unexpired term to which he was elected. Additionally, Relator contends that Justice McGraw's actions first, as the author of a recent opinion³ declaring Speaker of the House of Delegates Robert S. Kiss ineligible for appointment to this Court under the emoluments clause of this state's constitution, and now, in seeking the position which Speaker Kiss was denied,⁴ have both undermined the integrity of this judicial institution and cast upon it a pernicious cloak of aspersion. Following an exhaustive examination of constitutional principles combined with an equally thorough review of judicial decisions concerning the penumbral issues presented by the petition, we conclude that while the constitution does not expressly proscribe an incumbent justice whose term has yet to be fulfilled from seeking election to a separate seat on this Court, the intent underlying the enactment of article VIII of our state constitution, which sets forth the requirements for selection to this Court, as well as the entire structure of the judicial branch of government; the social compact of this state's citizenry as expressed through the adoption of both the Constitution and the Judicial Reorganization Act of 1974; and the state's compelling interest in maintaining the integrity of the judiciary, as well as its equally-compelling interest in securing an independent judiciary removed from the entanglements of politics, all combine to require this Court to conclude that Justice McGraw cannot seek to enhance his term-length through these means. Accordingly, we grant the writ of mandamus as moulded.⁵

I. Factual Background

The precipitating fact that spawned this petition was the filing of a certificate of candidacy by Justice McGraw via the U.S. Postal system on January 29, 2000. See W.Va. Code 3-5-7 (1999). Were it not for the fact that Justice McGraw is currently filling the remainder of an unexpired term,⁶ which runs until December 31, 2004, the filing would not have been momentous. Due to the unprecedented nature of this filing, the press immediately began publishing commentary⁷ on the issue of whether a supreme court justice could seek election to another term of court while still occupying an unexpired term on that same body. When Justice McGraw permitted the deadline for withdrawing his candidacy⁸ to pass, Relator avers that he was prompted to file a request for extraordinary relief by virtue of Justice McGraw's failure to withdraw his name from the list of Democratic candidates seeking election to this Court. This Court granted the rule to show cause for the purpose of determining whether Justice McGraw's candidacy is in violation of the West Virginia Constitution or the general laws of this state.

II. Standard of Review

Typically, this Court considers whether to issue a writ of mandamus against the following three-pronged standard:

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). Where challenges to the electoral process are involved, however, this Court has recognized the need to relax the stringent requirements for issuing writs of mandamus:

The public policies in protecting fundamental rights, preserving electoral integrity, and promoting both political and judicial economy have prompted a practical approach in assessing whether an election case is appropriate for mandamus relief.... It is only when a writ of mandamus has been invoked to preserve the right to vote or to run for political office that 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. County Comm'n, 196 W.Va. 739, 474 S.E.2d 919 (1996); accord Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979) ("Because 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.")

While we countenanced easing the standard for issuing extraordinary relief in the context of "preserving" the right to run for political office in Sowards, the issues raised in this case, although aimed at prohibiting a candidacy, suggest similar exigencies which require immediate, rather than deferred, resolution. Moreover, as we explained in Bromelow, "[t]he principal purpose of the liberalized election mandamus proceeding is to provide an expeditious pre-election hearing to resolve eligibility of candidates, so that voters can exercise their fundamental rights as to all eligible candidates." Id. at 536, 258 S.E.2d at 122; see also State ex rel. Maloney v. McCartney, 159 W.Va. 513, 527, 223 S.E.2d 607, 616 (1976) (stating that "intelligent and meaningful exercise of the franchise requires some method of averting a void or voidable election" and recognizing that "some form of proceeding must be available by which interested parties may challenge in advance of a primary or general election the eligibility of questionable candidates in order to assure that elections will not become a mockery...."). That mandamus is the agreed-upon procedural mechanism for resolving questions of a candidate's eligibility is well-established:

"The eligibility of a candidate for an elective office may be determined in a proceeding in mandamus and, upon a determination therein that a candidate is ineligible to be elected to or to hold the office for which he seeks nomination or election, a writ of mandamus will issue directing the board of ballot commissioners to strike or omit such candidate's name from the primary or general election ballot." Syl. pt. 1, State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964).

Syl. Pt. 1, State ex rel. Haught v. Donnahoe, 174 W.Va. 27, 321 S.E.2d 677 (1984). Against these principles, we examine Relator's request for a writ of mandamus.

III. Discussion

As an initial matter, we feel constrained to observe that not once in the 137 years since this state's formation has any individual adopted a course of action such as that pursued here by Justice McGraw. No one has previously attempted to "switch seats" while already occupying a position on this Court, the highest tribunal in this state. The absence of precedent for this audacious conduct is not limited to this state's jurisprudence, but similarly is lacking throughout the other fifty states, save one. Were it not for the thwarted aspirations of one other judge, we would be completely bereft of authority against which to examine Justice McGraw's novel approach to term extension.⁹

We are not unmindful of the fact that a differing viewpoint exists with regard to the authority of this Court to prohibit Justice McGraw from seeking another term on this judicial body based on the fact that our state constitution does not expressly proscribe such a candidacy. In anticipation of such reproach, we respond that this Court is obligated by its role as the arbiter of constitutional issues, as well as its duty to uphold the confidence reposed in the judiciary by this state's citizenry, to resolve the issue of Justice McGraw's candidacy. Concomitant to the sustained confidence of the public in the judiciary is the correlative responsibility that integrity must be the cynosure of all judicial endeavors, both actual and perceived. So crucial is the state's interest in maintaining the integrity of its judicial system that regulations or restrictions which temporally affect an officeholder's access to the ballot have been found to withstand constitutional challenge on this ground alone. Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). This recognized state interest in upholding the integrity of the judicial system, and the inherent and express power of this Court to control the political activities of all judicial officers, thus serve as both the predicate core of our decision and as the authority for the ruling itself.

A. Constitutional and Statutory Provisions

We look first to the governing constitutional language found in article VIII, section seven to determine whether the legislative framers anticipated and addressed the situation with which we are confronted. The only language that addresses the issue of judicial candidacy states as follows:

No justice, judge or magistrate shall hold any other office, or accept any appointment or public trust,

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