State ex rel. Maloney v. McCartney, 13697

• Decision Date: 06 April 1976
• Docket Number: No. 13697,13697
• Citation: 223 S.E.2d 607,159 W.Va. 513
• Parties: STATE ex rel. Melton MALONEY v. James McCARTNEY, Secretary of State of West Virginia and Arch A. Moore, Jr.
• Court: West Virginia Supreme Court

Page 607

223 S.E.2d 607

159 W.Va. 513

STATE ex rel. Melton MALONEY v. James McCARTNEY, Secretary of State of West Virginia and Arch A. Moore, Jr.

No. 13697.

Supreme Court of Appeals of West Virginia.

April 6, 1976.

Appeal Dismissed April 22, 1976. See 96 S.Ct. 1689.

Syllabus by the Court

1. Where provisions of a constitution are plain and unambiguous they will be applied and not construed.

2. A provision in the Constitution of the State of West Virginia which provides that a person will be ineligible for the office of Governor during the term after the second of two consecutive terms does not violate the Fourteenth Amendment to the Constitution of the United States because it creates no invidious class distinction, does not unreasonably restrict the franchise, and serves a rational public policy.

3. In the event of ambiguity a constitutional amendment will receive every reasonable construction in favor of eligibility for office, and prospective rather than retroactive effect; however, W.Va.Const., Art. VII, § 4, the 'Governors Succession Amendment,' is not ambiguous as it was the plainly expressed intention of the electorate in adopting that Amendment to limit the eligibility of the then incumbent governor to two consecutive terms, notwithstanding that one of the terms to be counted had commenced before the adoption of the Amendment.

4. Where there is extrinsic evidence that a joint resolution of the Legislature proposing an amendment to the Constitution has been passed in a proper manner under applicable constitutional provisions, a typographical error in the official journal of one of the houses showing that the joint resolution was passed in a different form will not cause the amendment to be invalidated.

5. In West Virginia a special form of mandamus exists to test the eligibility to office of a candidate in either primary or feneral election. The proper party respondent in such special action in mandamus is the Secretary of State of the State of West Virginia in the case of an office to be filled by the voters of more than one county or the clerk of the circuit court in the case of an office to be filled by the voters of one county, and this action in mandamus, being a special creation of the evolving common law, is ripe for prosecution immediately upon a candidate's filing of his certificate of candidacy.

6. Where an action in mandamus is brought to test eligibility to office before a primary or general election it is proper to join as an original party respondent the real party in interest in order to avoid the delay attendant upon petitions to intervene and other procedural formalities which might frustrate the expeditious resolution of the case.

Joseph Thomas and Charles W. Covert, St. Albans, for relator.

Bowles, Kauffelt, McDavid & Graff, Paul N. Bowles, Gary G. Markham and J. Thomas Lane, Charleston, for respondent McCartney.

John E. Carrigan, Wheeling, Oliver D. Kessel, Ripley, for respondent Moore.

NEELY, Justice:

This action in mandamus was brought to challenge the right of the respondent incumbent Governor to seek a third consecutive term as Chief Executive of this State. In November 1968 His Excellency the Governor of West Virginia, Arch A. Moore, Jr., was elected to his first term as Governor under W.Va.Const., Art VII, § 4 which provided:

'. . . The Governor shall not be eligible to said office for the four years next succeeding the term for which he was elected.' ¹

In November 1970 the people of this State ratified an amendment to that section known popularly as the 'Governors Succession Amendment' which provides in relevant part as follows:

'. . . A person who has been elected or who has served as governor during all or any part of two consecutive terms shall be ineligible for the office of governor during any part of the term immediately following the second of the two consecutive terms. The person holding the office of governor when this section is ratified shall not be prevented from holding the office of governor during the term immediately following the term he is then serving.'

In November 1972 the Governor was ree lected to a second term as Chief Executive, and in February 1976 the Governor filed his certificate of candidacy and paid his filing fee in the office of the respondent Secretary of State in order to have his name placed on the ballot for the May 1976 Republican primary election. This action in mandamus was brought by Melton M. Maloney, also a candidate for the Republican Party nomination for Governor.

The Court holds that the applicable canon of constitutional construction in this case is that where a constitutional provision is plain and unambiguous it will be applied and not construed. As there is no provision of the Constitution of the United States in conflict with West Virginia's Art VII, § 4 limitation on succession, and as there is no rule of constitutional construction which requires other than a straight-forward application of the constitutional provision in question, we hold that the Governor is ineligible to succeed himself during the term beginning January 1977 and that the writ of mandamus be awarded.

The respondent Governor presents two scholarly and sophisticated arguments in defense of his eligibility for ree lection to a third term. The first and most complex proposition is that the Governors Succession Amendment violates § 1 of the Fourteenth Amendment to the Constitution of the United States by denying equal protection of the laws to those persons who would wish to elect Arch A. Moore, Jr. as Governor for a third successive term. The Governor's second argument is that Art. VII, § 4 is patently and latently ambiguous and therefore, that the ambiguity under proper canons of constitutional construction must be strictly resolved in favor of prospective application and the incumbent's eligibility to seek ree lection. In addition to the Governor's two defenses on the merits, he further asserts that Art. VII, § 4 was improperly adopted because of an error in the legislative journal, and that this action in mandamus is improper because the Secretary of State has performed all ministerial duties required of him by the Code.

I

The Governor asserts that the Fourteenth Amendment to the Constitution of the United States prohibits restrictions upon eligibility for public office that tend to deny any group of citizens the effective exercise of their franchise. In support of this proposition the Governor cites Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and, Thompson v. Mellon, 9 Cal.3d 96, 107 Cal.Rptr. 20, 507 P.2d 628 (1973). This Court agrees that any restriction upon eligibility for office which exists for the purpose of limiting the franchise of any substantial group of citizens is inherently unconstitutional. However, we also recognize a distinction between incidental limitations on the franchise attendant upon the accomplishment of a valid public purpose and limitations which have no effect other than simple restrictions of the franchise. Incidental limitations on the franchise are those which restrict its exercise only with regard to office seekers who fail to meet objective qualifications, established on a rational basis, in a valid attempt to insure wisdom, dignity, responsiveness, and competence in public officials. Examples of this type of limitation include requirements that condidates be of a certain age, not be under conviction for a felony, or be members of the bar.

Constitutional restrictions circumscribing the ability of incumbents to cucceed themselves appear in over twenty state constitutions, ² and exist in the Twenty-second Amendment to the Constitution of the United States with regard to the Presidency. The universal authority is that restriction upon the succession of incumbents serves a rational public policy and that, while restrictions may deny qualified men an opportunity to serve, as a general rule the over-all health of the body politic is enhanced by limitations on continuous tenure. Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595, Cert Den. 397 U.S. 149, 90 S.Ct. 999, 25 L.Ed.2d 183 (1970).

The reasons for limitations upon the right of incumbents to succeed themselves have their origin in the political structure of yesteryear when direct access by candidates to voters was circumscribed by poor communications, illiteracy, and indifference. The power of incumbent officeholders to develop networks of patronage and attendant capacities to deliver favorably disposed voters to the polls raised fears of an entrenched political machine which could effectively foreclose access to the political process. Consequently, while a political party, a political philosophy, or even countless thousands of appointed governmental executives and employees could continue from administration to administration, it was thought that regular changes in the chief executive would stimulate criticism within political parties for the purpose of attracting attention to the individual aspirants for chief executive and would stimulate competition among political parties by providing occasions on which entrenched machines would be so disrupted by internecine strife as to insure a meaningful, adversary, and competitive election. Maddox v. Fortson, supra.

In addition it has long been felt that a limitation upon succession of incumbents removes the temptation to prostitute the government to the perpetuation of a particular administration. Gorrell v. Bier, 15 W.Va. 311 (1879). While elections are won by 51% Of the vote, all of the people of a state must be served. Meretricious policies which sacrifice the well-being of economic, social, racial, or geographical minorities are most likely where a political figure, political party, or political interest group can rely upon electorate inertia fostered by the hopelessness of encountering a seemingly...