State ex rel. Haught v. Donnahoe

• Decision Date: 11 October 1984
• Docket Number: No. 16427,16427
• Citation: 321 S.E.2d 677,174 W.Va. 27
• Parties: STATE ex rel. Eldon J. HAUGHT, etc. v. George Douglas DONNAHOE, et al, etc.
• Court: West Virginia Supreme Court

Page 677

321 S.E.2d 677

174 W.Va. 27

STATE ex rel. Eldon J. HAUGHT, etc. v. George Douglas DONNAHOE, et al, etc.

No. 16427.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 12, 1984.

Decided Oct. 11, 1984.

Syllabus by the Court

1. "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).

2. The phrase "admitted to practice law for at least five years," contained in West Virginia Constitution art. VIII, § 7 imposes licensing and experimental requirements for persons elected to the office of circuit judge which may only be satisfied by unqualified admission to the practice of law in this State for the requisite period. "Admitted to practice" means permitted to practice before the official body empowered to regulate the practice of law in this State.

3. The requirement contained in West Virginia Constitution art. VIII, § 7, that candidates for the office of circuit judge must have been admitted to the practice of law in the State for five years prior to their election advances the State's compelling interest in securing and maintaining a judiciary well qualified in the law of the jurisdiction.

David G. Hanlon, Harrisville, for petitioners.

Sam White, St. Marys, for Donnahoe.

Chauncey H. Browning, Atty. Gen. and Marianne K. Hoover, Asst. Atty. Gen., Charleston, for Manchin.

Keith White, Asst. Pros. Atty., St. Marys, for Fox, Payne & Long.

Lucien R. Sammons, Jr., Pros. Atty., West Union, for Britton, Michaels & Bland.

McGRAW, Justice:

I

This is an original proceeding in mandamus, by the petitioner, Eldon J. Haught, a duly registered voter of Ritchie County, West Virginia, and Chairman of the Ritchie County Democratic Executive Committee. One of the respondents in this proceeding, George Douglas Donnahoe, was the sole Republican candidate for that party's nomination for Judge of the Circuit Court of the Third Judicial Circuit. As a result of the June 5, 1984 primary election, he became the Republican nominee for that office. The petitioner seeks a writ to compel the respondents, ballot commissioners for the counties of Ritchie, Pleasants and Doddridge, which comprise the Third Judicial Circuit of this State, to omit the name of respondent Donnahoe from the official ballot of the general election of November 6, 1984. The petitioner also seeks to compel the respondent, Secretary of State A. James Manchin, to withhold or withdraw the certification of the nomination of respondent Donnahoe as the Republican nominee for the office of Judge of the Circuit Court of the Third Judicial Circuit.

By way of this petition for writ of mandamus, the petitioner specifically challenges respondent Donnahoe's eligibility for such judicial office under West Virginia Constitution article VIII, section 7, and asks this Court to direct the above-mentioned election officials to perform their respective legal duties under the election laws of this State. See West Virginia Code §§ 3-1-1 et seq. (1979 Replacement Vol. & Supp.1984). We find the respondent candidate ineligible under article VIII, § 7, to be elected to or hold the office of circuit judge. Accordingly, we grant the writ.

Original jurisdiction in mandamus in cases involving elections is conferred upon this Court by article VIII, section 3 of the West Virginia Constitution, and, more specifically, by West Virginia Code § 3-1-45 (1979 Replacement Vol.). ¹ In Syllabus point 1 of State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964), this Court held:

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.

A thorough review of this special form of mandamus is contained in this Court's most recent decision in this area. See White v. Manchin, 318 S.E.2d 470 (W.Va.1984). The applicability of this form of action to this particular case is beyond question. The underlying issues regarding respondent Donnahoe's eligibility present more novel questions.

II

Article VIII, § 7 of the West Virginia Constitution, in its first paragraph, provides:

All justices, judges and magistrates must be residents of this State and shall be commissioned by the governor. No person may hereafter be elected as a justice of the supreme court of appeals unless he has been admitted to practice law for at least ten years prior to his election, and no person may hereafter be elected as a judge of a circuit court unless he has been admitted to practice law for at least five years prior to his election. (emphasis added).

A brief summary of the facts giving rise to this proceeding, which put the exact meaning of the above language at issue, is in order at this point.

Respondent George Douglas Donnahoe holds a law degree from Duke University. He was admitted to the practice of law in the State of California on June 5, 1963, and, at that time, established a one-man office in the Los Angeles area where, until recently, he actively engaged in the practice of law.

In late 1978, respondent Donnahoe purchased a farm in Doddridge County, West Virginia, and, on July 10, 1979, he and his family moved to this locale. By his affidavit, which accompanies the response to the subject petition, respondent Donnahoe relates that during the next several years after moving to West Virginia, he commuted to his law office in Los Angeles, California, for the sole purpose of closing up his law practice there, and in 1983 spent nearly six months in California finally winding his law practice down. He further relates that his intention then and now was to never practice law again, in California, West Virginia, or any other state. Accordingly, respondent Donnahoe, by his request of February 15, 1984, transferred to inactive membership in the State Bar of California. ² Additionally, he is not now admitted, nor has he ever sought admission to the practice of law in West Virginia or membership in the West Virginia State Bar.

Therefore, the primary issue presented in this proceeding is whether article VIII, § 7 of the West Virginia Constitution requires candidates for circuit judge to have been duly admitted to practice law in West Virginia for five years, or whether admission to the practice of law anywhere for five years is sufficient. ³

We recognize that where "a constitutional provision is clear in its terms, and the intention of the electorate is clearly embraced in the language of the provision itself, this Court must apply and not interpret the provision." Syl. pt. 1, State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953). We reject, however, respondent candidate's contention that the phrase "admitted to practice law for at least five years" is unambiguous. Only if the phrase read, for example, "admitted to practice law in any state for at least five years" would its meaning, under the terms of the respondent's argument, be unambiguous. The provision as written is, therefore, subject to application by the Court according to the common and recognized rules of construction. The paramount principle is that "[t]he object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it." Diamond v. Parkersburg-Aetna Corporation, 146 W.Va. 543, 555, 122 S.E.2d 436, 443 (1961) (emphasis in original). ⁴

Although there are no West Virginia cases construing the language involved here, State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964) is instructive. In that case, this Court was presented with a similar issue involving whether a non-lawyer was eligible for the office of prosecuting attorney in the absence of a specific constitutional or statutory provision mandating that county prosecutors must be lawyers, licensed to practice in West Virginia. Noting both the strong policy reasons discussed in similar cases of other jurisdictions, and the statutory duties imposed on a prosecuting attorney in this State, this Court held that "such official must be an attorney licensed to practice his profession in this State." State ex rel. Summerfield v. Maxwell, 148 W.Va. at 549, 135 S.E.2d at 750. See also State ex rel. Dostert v. Riggleman, 155 W.Va. 808, 187 S.E.2d 591 (1972).

A case cited with approval in Summerfield, also sheds some light on this matter. In State v. Russell, 83 Wis. 330, 53 N.W. 441 (1892), the Supreme Court of Wisconsin interpreted a state statute which provided that: "the circuit judges, within their respective circuits, are hereby authorized, in their discretion, to appoint counsel to assist the district attorney...." (emphasis added). There were no qualifying terms pertaining to the word "counsel." This was an appeal of a criminal conviction where the appointed "counsel" was a Minnesota attorney, a "distinguished criminal lawyer of St. Paul." Russell, 83 Wis. at 331, 53 N.W. at 441. He was, however, not a resident of Wisconsin or a member of the Wisconsin bar. The court held that the proper meaning accorded the word "counsel" in the statute required that such persons "must be a member of the bar of this state." Russell, 83 Wis. at 335, 53 N.W. at 442.

If prosecuting attorneys must meet these types of intraterritorial qualifications despite the absence of clear constitutional or statutory provisions mandating such...