State ex rel. Cooper v. Tennant, Nos. 11–1405

CourtSupreme Court of West Virginia
Writing for the CourtJustice BENJAMIN concurs in part and dissents in part and reserves the right to file a separate opinion.
Citation730 S.E.2d 368
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 Date20 July 2012
Docket Number11–1516,11–1517,11–1525.,Nos. 11–1405,11–1447

730 S.E.2d 368

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.

Nos. 11–1405, 11–1447, 11–1516, 11–1517, 11–1525.

Supreme Court of Appeals of
West Virginia.

Submitted Nov. 17, 2011.
Decided Feb. 13, 2012.

Dissenting Opinion of Justice Benjamin
July 20, 2012.


[730 S.E.2d 372]





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 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).

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 (1965) ].” 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,

[730 S.E.2d 373]

effective August 21, 2011, is constitutional.

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.


Thornton Cooper, Pro Se, South Charleston, WV.

Jennifer Scragg Karr, Winfield, WV, for Petitioners Andes et al.


Jeffrey A. Pritt, Pritt Law Firm Union, WV, for Petitioners Monroe County Commissioners.

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

Thomas W. Rodd, Assistant Attorney General, Charleston, WV, for Respondent Tennant.

Anthony J. Majestro, Powell & Majestro, Charleston, WV, for Respondent Thompson.

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

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 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 1,852,994. Notably, the official population counts of each of the state's fifty-five counties revealed there to be significant losses in population in the Northern Panhandle and Southern counties and significant growth in population in Monongalia County and the Eastern Panhandle counties.

The House of Delegates redistricting process began with the appointment of a House Select Committee on Redistricting (hereinafter “Committee”), comprised of thirty members from all regions of the state, with Majority Leader Brent Boggs serving as the Committee Chair. The Committee created a website and provided information about the redistricting process and an opportunity for

[730 S.E.2d 374]

public response. The culmination of the Committee's work was presented on August 5, 2011, as House Bill 106. Although the Senate passed House Bill 106, technical errors were subsequently discovered, and the governor vetoed the bill on August...

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9 practice notes
  • Morrisey v. Afl-Cio, No. 19-0298
    • United States
    • Supreme Court of West Virginia
    • 21 Abril 2020
    ...while restricting the power of government to interfere with those rights. See generally State ex rel. Cooper v. Tennant , 229 W. Va. 585, 730 S.E.2d 368 (2012). Here, in the absence of any evidence that West Virginia's employers and unionized employees are unable to fairly and reasonably ne......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • 11 Octubre 2018
    ...writ against the Legislature when the law permits. For example, the case of State ex rel. Cooper v. Tennant , 229 W. Va. 585, 730 S.E.2d 368 (2012) involved several consolidated actions for prohibition and mandamus against the Speaker of the House of Delegates and government officials conce......
  • Wilson v. Kasich, No. 2012–0019.
    • United States
    • United States State Supreme Court of Ohio
    • 27 Noviembre 2012
    ...that the plan adopted by the board is unconstitutional beyond a reasonable doubt. See State ex rel. Cooper v. Tennant, 229 W.Va. 585, 730 S.E.2d 368 (2012), paragraph twelve of the syllabus (“The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legis......
  • W. Va. Dep't of Health & Human Res. v. E.H., Nos. 14–0664
    • United States
    • Supreme Court of West Virginia
    • 7 Octubre 2015
    ...plans to address a myriad of agency issues embroiled in litigation. See, e.g., State ex rel. Cooper v. Tennant,229 W.Va. 585, 615, 730 S.E.2d 368, 398 (2012)(“The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legislative redistricting plan is cons......
  • Request a trial to view additional results
9 cases
  • Morrisey v. Afl-Cio, No. 19-0298
    • United States
    • Supreme Court of West Virginia
    • 21 Abril 2020
    ...while restricting the power of government to interfere with those rights. See generally State ex rel. Cooper v. Tennant , 229 W. Va. 585, 730 S.E.2d 368 (2012). Here, in the absence of any evidence that West Virginia's employers and unionized employees are unable to fairly and reasonably ne......
  • State ex rel. Workman v. Carmichael, No. 18-0816
    • United States
    • Supreme Court of West Virginia
    • 11 Octubre 2018
    ...writ against the Legislature when the law permits. For example, the case of State ex rel. Cooper v. Tennant , 229 W. Va. 585, 730 S.E.2d 368 (2012) involved several consolidated actions for prohibition and mandamus against the Speaker of the House of Delegates and government officials conce......
  • Wilson v. Kasich, No. 2012–0019.
    • United States
    • United States State Supreme Court of Ohio
    • 27 Noviembre 2012
    ...that the plan adopted by the board is unconstitutional beyond a reasonable doubt. See State ex rel. Cooper v. Tennant, 229 W.Va. 585, 730 S.E.2d 368 (2012), paragraph twelve of the syllabus (“The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legis......
  • W. Va. Dep't of Health & Human Res. v. E.H., Nos. 14–0664
    • United States
    • Supreme Court of West Virginia
    • 7 Octubre 2015
    ...plans to address a myriad of agency issues embroiled in litigation. See, e.g., State ex rel. Cooper v. Tennant,229 W.Va. 585, 615, 730 S.E.2d 368, 398 (2012)(“The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legislative redistricting plan is cons......
  • Request a trial to view additional results

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