State ex rel. Cooper v. Tennant, No. 11-1405

CourtSupreme Court of West Virginia
Writing for the CourtMcHugh
PartiesSTATE OF WEST VIRGINIA EX REL. THORNTON COOPER, Petitioner v. NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST VIRGINIA and RICHARD THOMPSON, SPEAKER OF THE WEST VIRGINIA HOUSE OF DELEGATES, Respondents STATE OF WEST VIRGINIA EX REL. STEPHEN ANDES and JOSEPH HAYNES, INDIVIDUALLY AND IN OFFICIAL CAPACITIES AS MEMBERS OF THE COUNTY COMMISSION OF PUTNAM COUNTY, WEST VIRGINIA; BRIAN WOOD, INDIVIDUALLY AND IN OFFICIAL CAPACITY AS PUTNAM COUNTY CLERK; BOB BAIRD, MYLES EPLING and RICK HANDLEY, INDIVIDUALLY AND IN OFFICIAL CAPACITIES AS MEMBERS OF THE COUNTY COMMISSION OF MASON COUNTY, WEST VIRGINIA; and DIANA CROMLEY, INDIVIDUALLY AND IN OFFICIAL CAPACITY AS MASON COUNTY CLERK, Petitioners v. NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST VIRGINIA and RICHARD THOMPSON, SPEAKER OF THE WEST VIRGINIA HOUSE OF DELEGATES, Respondents STATE OF WEST VIRGINIA EX REL. COUNTY COMMISSION OF MONROE COUNTY, BY and THROUGH ITS MEMBERS: MICHAEL SHANE ASHLEY, CLYDE GUM, JR., and WILLIAM MILLER, Petitioners v. RICHARD THOMPSON, SPEAKER OF THE WEST VIRGINIA HOUSE OF DELEGATES; and NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST VIRGINIA, Respondents STATE OF WEST VIRGINIA EX REL. ELDON A. CALLEN, JIM BOYCE, PETRA WOOD, JOHN WOOD and FRANK DEEM, Petitioners v. NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST VIRGINIA, Respondent STATE OF WEST VIRGINIA EX REL. THORNTON COOPER, Petitioner v. NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST VIRGINIA, Respondent
Decision Date13 February 2012
Docket NumberNo. 11-1405,No. 11-1516,No. 11-1517,No. 11-1525,No. 11-1447

STATE OF WEST VIRGINIA EX REL. THORNTON COOPER, Petitioner
v.
NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST
VIRGINIA and RICHARD THOMPSON, SPEAKER OF THE WEST VIRGINIA
HOUSE OF DELEGATES, Respondents
STATE OF WEST VIRGINIA EX REL.
STEPHEN ANDES and JOSEPH HAYNES,
INDIVIDUALLY AND IN OFFICIAL CAPACITIES AS MEMBERS
OF THE COUNTY COMMISSION OF PUTNAM COUNTY, WEST VIRGINIA; BRIAN
WOOD, INDIVIDUALLY AND IN OFFICIAL CAPACITY AS PUTNAM COUNTY
CLERK; BOB BAIRD, MYLES EPLING and RICK HANDLEY, INDIVIDUALLY
AND IN OFFICIAL CAPACITIES AS MEMBERS OF THE COUNTY COMMISSION
OF MASON COUNTY, WEST VIRGINIA; and DIANA CROMLEY, INDIVIDUALLY
AND IN OFFICIAL CAPACITY AS MASON COUNTY CLERK, Petitioners
v.
NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST
VIRGINIA and RICHARD THOMPSON, SPEAKER OF THE WEST VIRGINIA
HOUSE OF DELEGATES, Respondents
STATE OF WEST VIRGINIA EX REL.
COUNTY COMMISSION OF MONROE
COUNTY, BY and THROUGH ITS MEMBERS: MICHAEL SHANE ASHLEY,
CLYDE GUM, JR., and WILLIAM MILLER, Petitioners
v.
RICHARD THOMPSON, SPEAKER OF THE WEST VIRGINIA
HOUSE OF DELEGATES; and NATALIE E. TENNANT, SECRETARY OF STATE
OF THE STATE OF WEST VIRGINIA, Respondents
STATE OF WEST VIRGINIA EX REL.
ELDON A. CALLEN, JIM BOYCE, PETRA
WOOD, JOHN WOOD and FRANK DEEM, Petitioners
v.
NATALIE E. TENNANT, SECRETARY OF STATE
OF THE STATE OF WEST VIRGINIA, Respondent
STATE OF WEST VIRGINIA EX REL.
THORNTON COOPER, Petitioner
v.
NATALIE E. TENNANT, SECRETARY OF STATE OF THE STATE OF WEST VIRGINIA, Respondent

No. 11-1405
No. 11-1447
No. 11-1516
No. 11-1517
No. 11-1525

SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2012 Term
Submitted: November 17, 2011
Filed: February 13, 2012


Petitions for Writs of Mandamus and Prohibition
WRITS DENIED

Thornton Cooper, Pro Se
South Charleston, West Virginia

Jennifer Scragg Karr
Winfield, West Virginia
Counsel for Petitioners Andes et al.

Jeffrey A. Pritt
Pritt Law Firm
Union, West Virginia
Counsel for Petitioners
Monroe County Commissioners

Roger D. Forman
Daniel T. Lattanzi
The Law Office of Roger D. Forman
Charleston, West Virginia
Counsel for Petitioners Callen et al.

Thomas W. Rodd
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent Tennant

Anthony J. Majestro
Powell & Majestro
Charleston, West Virginia
Counsel for Respondent Thompson

Robert M. Bastress, III
DiTrapano, Barrett & DiPiero
Charleston, West Virginia
Counsel for Amici Curiae
WV AFL-CIO and WV Citizens Group

The Opinion of the Court was delivered by Justice McHugh.

Justice Benjamin concurs in part and dissents in part and reserves the right to file a separate opinion.

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SYLLABUS BY THE COURT

1. "Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; and (3) the absence of another adequate remedy at law." Syl. Pt. 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).

2. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

3. "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable

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construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).

4. "There is a presumption of constitutionality with regard to legislation." Syl. Pt. 6, in part, Gibson v. West Virginia Dept. of Hwys, 185 W. Va. 214, 406 S.E.2d 440 (1991).

5. "The Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby." Syl. Pt. 1, Foster v. Cooper, 155 W.Va. 619, 186 S.E.2d 837 (1972).

6. "When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. Pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).

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7. "Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the federal Constitution, the Legislature may enact any measure not interdicted by that organic law or the Constitution of the United States." Syl. Pt. 1, State ex rel. Metz v. Bailey, 152 W.Va. 53, 159 S.E.2d 673 (1968).

8. "The well settled general rule is that in cases of doubt the intent of the Legislature not to exceed its constitutional powers is to be presumed and the courts are required to favor the construction which would consider a statute to be a general law." Syl. Pt. 8, State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965).

9. "'Whether a special act or a general law is proper, is generally a question for legislative determination; and the court will not hold a special act void, as contravening sec. 39, Art. VI. of the State Constitution, unless it clearly appears that a general law would have accomplished the legislative purpose as well.' Point 8 Syllabus, Woodall v. Darst, 71 W.Va. 350 [77 S.E. 264, 80 S.E. 367]." Syl. Pt. 1, Hedrick v. County Court, 153 W.Va. 660, 172 S.E.2d 312 (1970).

10. The West Virginia House of Delegates redistricting statute, West Virginia Code §1-2-2 (2011), as amended by House Bill 201, adopted by the West Virginia Legislature, effective August 21, 2011, is constitutional.

Page 5

11. The West Virginia Senate redistricting statute, West Virginia Code § 1-2-1 (2011), as amended by Senate Bill 1006, adopted by the West Virginia Legislature, effective August 5, 2011, is constitutional.

12. The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legislative redistricting plan is constitutional is to assess the validity of the particular plan adopted by the Legislature under both federal and state constitutional principles, rather than to ascertain whether a better plan could have been designed and adopted.

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McHugh, J.:

This matter is before this Court upon the filing of a petition for writ of mandamus by Thornton Cooper, No. 11-1405; petitions for writs of prohibition by Stephen Andes, et al., No. 11-1447 and by the Monroe County Commission, No. 11-1516; and petitions for writs of mandamus by Eldon Callen, et. al, No. 11-1517, and by Thornton Cooper, No. 11-1525. Petitioners Andes and Monroe County Commission challenge the constitutionality of House Bill 201 ("HB 201"), which is redistricting legislation regarding the West Virginia House of Delegates that was adopted by the West Virginia Legislature (hereinafter "Legislature"), effective August 21, 2011. Petitioner Callen, et. al, challenges the constitutionality of Senate Bill 1006 ("SB 1006"), which is redistricting legislation regarding the West Virginia Senate that was adopted by the Legislature, effective August 5, 2011. Petitioner Cooper challenges the constitutionality of both the House of Delegates and Senate redistricting plans.

This Court issued a Rule to Show Cause on all writs, and oral arguments were heard on this matter on November 17, 2011. Subsequent to this Court's thorough review of the constitutional provisions at issue, the briefs and submissions before this Court, the arguments of counsel, and applicable precedent, this Court entered an order on November 23, 2011, concluding that neither HB 201 nor SB 1006 violates the West Virginia

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Constitution. We now issue this opinion to explain the basis for our November 23, 2011, order.

I. Factual and Procedural History

On August 5, 2011, the Legislature enacted SB 1006, West Virginia Code § 1-2-1 (2011), and on August 21, 2011, the Legislature enacted HB 201, West Virginia Code § 1-2-2 (2011). These legislative redistricting plans were prompted by the 2010 census results regarding the population of this state. According to the 2010 census, the overall population of West Virginia increased slightly from 1,808,344 (per the 2000 census) to...

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