State ex rel. Cooper v. Caperton, No. 23059

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY
Citation196 W.Va. 208,470 S.E.2d 162
PartiesSTATE of West Virginia ex rel. Thornton COOPER, Petitioner Below, Appellee, v. Honorable Gaston CAPERTON, Governor of the State of West Virginia; Honorable Larrie Bailey, Treasurer of the State of West Virginia; and the Honorable Ken Hechler, Secretary of State of the State of West Virginia, Respondents Below, Appellees. STATE of West Virginia ex rel. the WEST VIRGINIA WATER DEVELOPMENT AUTHORITY, Petitioner Below, Appellee, v. The WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT COUNCIL, Respondent Below, Appellant, Thornton Cooper, Intervenor Below, Appellee.
Docket NumberNo. 23059
Decision Date29 February 1996

Page 162

470 S.E.2d 162
196 W.Va. 208
STATE of West Virginia ex rel. Thornton COOPER, Petitioner
Below, Appellee,
v.
Honorable Gaston CAPERTON, Governor of the State of West
Virginia; Honorable Larrie Bailey, Treasurer of the State
of West Virginia; and the Honorable Ken Hechler, Secretary
of State of the State of West Virginia, Respondents Below,
Appellees.
STATE of West Virginia ex rel. the WEST VIRGINIA WATER
DEVELOPMENT AUTHORITY, Petitioner Below, Appellee,
v.
The WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL, Respondent Below, Appellant, Thornton
Cooper, Intervenor Below, Appellee.
No. 23059.
Supreme Court of Appeals of
West Virginia.
Submitted Nov. 28, 1995.
Decided Feb. 29, 1996.

Page 164

[196 W.Va. 210] Syllabus by the Court

1. Generally, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo. The sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law.

2. To preserve an issue for appellate review, a party must articulate it with such

Page 165

[196 W.Va. 211] sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.

3. The procedures set forth in Section 2 of Article XIV of the West Virginia Constitution are designed to achieve two goals: (1) to ensure, through the endorsement of a legislative supermajority and the support of a majority of those voting in a statewide referendum, that constitutional amendments reflect a true and broad based political consensus; and (2) to guarantee that such a referendum may be held only after the Legislature has taken steps to inform the electorate fully and accurately about the proposed amendment.

4. No amendment to the West Virginia Constitution can be effected without: (1) the duly recorded concurrence of two-thirds of the members in each house; (2) the submission of the proposed amendment to the people; (3) the amendment's ratification by a majority of those voting in a statewide referendum; (4) the fulfillment of the legislative duty to inform the people about the proposed amendment through at least substantial compliance with the directives of Section 2 of Article XIV of the West Virginia Constitution and in a manner sufficient to permit the voters to make up their minds; and (5) an absence of evidence that the State's voter education mislead or confused the voters if not in strict compliance with Article XIV.

5. When the State fails to publish the full text of a proposed amendment in a newspaper in each county but instead publishes a summary of the amendment, the results of a referendum on the amendment will not be set aside if: (1) the summary fully, fairly, and accurately describes the amendment; (2) the summary is, in fact, more understandable than the actual text of the amendment; (3) the summary was adopted by the Legislature; (4) there was no probative evidence that the summary mislead voters or reasonably could be read to have had a misleading effect; and (5) there was no probative evidence that publication of the full text of the amendment would have made any difference in the outcome of the referendum.

6. Section 2 of Article XIV of the West Virginia Constitution requires the Legislature to cause the full text of a proposed amendment to be published in a newspaper in each of the State's counties having a newspaper and any departures from that requirement shall be strictly reviewed.

Appeal from the Circuit Court of Kanawha County; Honorable Herman G. Canady, Jr., Judge, Civil Action No. 95-MISC-290.

Thornton Cooper, South Charleston, Pro Se.

Paul E. Jordan, Senior Assistant Attorney General, Joy M. Cavallo, Assistant Attorney General, Charleston, for Appellees Governor Caperton, Treasurer Bailey, and Secretary of State Hechler.

James K. Brown, Jackson & Kelly, Charleston, for Appellee The West Virginia Water Development Authority.

Thomas J. Gillooly, Charleston, for Appellant The West Virginia Infrastructure and Jobs Development Council.

CLECKLEY, Justice:

This opinion follows the December 14, 1995, order issued by this Court affirming the August 30, 1995, order of the Circuit Court of Kanawha County. In its 67-page order, the circuit court granted a petition for a writ of mandamus filed by the West Virginia Water Development Authority (Authority), 1 an appellee herein, demanding that the West Virginia Infrastructure and Jobs Development Council (Council), 2 the appellant herein, be ordered to provide the requisite certification to the Authority and the Treasurer of the State of West Virginia, the Honorable Larrie Bailey, also an appellee herein, so that the marketing and sale of certain general obligation bonds may proceed. The Council then brought this appeal seeking a final judicial determination by this Court.

In that same order, the circuit court also denied a petition for a writ of mandamus by Thornton Cooper originally filed against the

Page 166

[196 W.Va. 212] Honorable Gaston Caperton, Governor of the State of West Virginia; the Honorable Larrie Bailey, Treasurer of the State of West Virginia; and the Honorable Ken Hechler, Secretary of State of the State of West Virginia, also appellees herein. Mr. Cooper challenges the constitutionality of the underlying amendment authorizing the issue and sale of the bonds. After carefully reviewing the facts and legal issues involved in this case, we affirm the circuit court's order.

I.

FACTUAL AND PROCEDURAL HISTORY

Initially, Mr. Cooper and the Authority filed independent mandamus actions with this Court on April 7, 1995, and April 13, 1995, respectively. We rejected both petitions without prejudice. Subsequently, both parties filed separate actions in the Circuit Court of Kanawha County. Mr. Cooper intervened in the Authority's suit and, on May 30, 1995, filed a motion to consolidate the two actions. Finding there existed common issues of law and fact between the two cases, the circuit court granted Mr. Cooper's motion. 3 After the circuit court entered its final order on August 30, 1995, the Council appealed for a determination by this Court. The parties stipulate to many of the facts.

This case involves the "Infrastructure Improvement Amendment" (Amendment) that was placed on the ballot for voter approval in the general election held on November 8, 1994. The duly canvassed and certified votes from that election reflect that the Amendment was ratified by the voters by a margin of 191,373 votes favoring the Amendment to 186,224 votes rejecting the Amendment.

Mr. Cooper, who is a citizen, taxpayer, and lawyer in Kanawha County, opposed the Amendment. 4 Following the election, Mr. Cooper learned that the full text of the Amendment was not published in any newspaper in the State prior to the election as is required by Section 2 of Article XIV of the West Virginia Constitution. 5 Instead, the Secretary of State's Office directed one newspaper in each county to publish a legal advertisement listing the title of the proposed Amendment, the number assigned to the proposed Amendment, and the legislatively adopted "Summary of Purpose" of the proposed Amendment. 6 This information

Page 167

[196 W.Va. 213] was published in 54 of the 55 counties in West Virginia. 7

The circuit court found that at least as early as 1989 and perhaps as early as 1982 the Secretary of State generally ceased directing that the full text of amendments be published in newspapers across the State. 8 Due to the failure to publish the full text of the Amendment, Mr. Cooper announced that he would challenge the Amendment which created concern over the marketing and sale of the bonds. Therefore, the Council states it declined to "certify the amount to be retained for payment of principal and interest on bonds to be issued pursuant to the Amendment, pending a judicial ruling on the legality and constitutionality of the Amendment, and of the related legislation." As a result of these circumstances, the two actions below were filed--one by the Authority seeking certification from the Council, the other by Mr. Cooper challenging the Amendment.

II.

DISCUSSION

Mr. Cooper, as an appellee, 9 cross-assigns error in no fewer than fourteen iterations. However, we find this appeal boils down to one question: Whether the circuit court erred by concluding that the publication of the "Summary of Purpose" of the proposed Amendment rather than the full text of the Amendment was in substantial compliance with the West Virginia Constitution? After careful perscrutation of both the record and the rich variety of challenges marshalled by Mr. Cooper and the Council, we affirm.

A.

Standard of Review

Generally, this Court reviews findings of fact for clear error and conclusions of law de novo. However, ostensible "findings of fact," which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo. In note 5 of Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 582, 466 S.E.2d 424, 433 (1995), we suggested that "mixed questions of law and fact, like pure questions of law, or those involving statutory interpretations, are most often reviewed de novo. Most significantly, the sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law." (466 S.E.2d at 433).

That the original proceeding was based upon petitions for writs of mandamus does not require us to change our standards of review. In our recent decision of Staten v.

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[196 W.Va. 214] Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995), we settled any doubt as to the standard of review for appeals in mandamus actions in West Virginia. In Syllabus...

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171 practice notes
  • State v. Trail, No. 14–0887.
    • United States
    • Supreme Court of West Virginia
    • October 7, 2015
    ...with particularity and at the appropriate time the legal ground upon which the parties intend to rely.State ex rel. Cooper v. Caperton,196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996)(citation omitted). See alsoSyl. pt. 3, O'Neal v. Peake Operating Co.,185 W.Va. 28, 404 S.E.2d 420 (1991)(“ ‘W......
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...the law ministers to the vigilant, not to those who sleep on their rights. Recently, we stated in State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996): "The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forge......
  • State v. McCraine, No. 30592.
    • United States
    • Supreme Court of West Virginia
    • May 16, 2003
    ...which transcend ordinary factual determinations, must be reviewed de novo." Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 III. Discussion Appellant raises the following assignments of error in this appeal: (1) testimony of the arresting officer should ......
  • Covington v. Smith, No. 30734.
    • United States
    • Supreme Court of West Virginia
    • March 17, 2003
    ...of a procedural bar to an appeal of that issue." (internal quotations and citations omitted)); State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) ("The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget t......
  • Request a trial to view additional results
173 cases
  • State v. Trail, No. 14–0887.
    • United States
    • Supreme Court of West Virginia
    • October 7, 2015
    ...with particularity and at the appropriate time the legal ground upon which the parties intend to rely.State ex rel. Cooper v. Caperton,196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996)(citation omitted). See alsoSyl. pt. 3, O'Neal v. Peake Operating Co.,185 W.Va. 28, 404 S.E.2d 420 (1991)(“ ‘W......
  • Coleman v. Sopher, No. 23943.
    • United States
    • Supreme Court of West Virginia
    • November 20, 1997
    ...the law ministers to the vigilant, not to those who sleep on their rights. Recently, we stated in State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996): "The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forge......
  • State v. McCraine, No. 30592.
    • United States
    • Supreme Court of West Virginia
    • May 16, 2003
    ...which transcend ordinary factual determinations, must be reviewed de novo." Syl. Pt. 1, in part, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 III. Discussion Appellant raises the following assignments of error in this appeal: (1) testimony of the arresting officer should ......
  • Covington v. Smith, No. 30734.
    • United States
    • Supreme Court of West Virginia
    • March 17, 2003
    ...of a procedural bar to an appeal of that issue." (internal quotations and citations omitted)); State ex rel. Cooper v. Caperton, 196 W.Va. 208, 216, 470 S.E.2d 162, 170 (1996) ("The rule in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they forget t......
  • Request a trial to view additional results

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