State ex rel. Rist v. Underwood, No. 26653
| Decision Date | 03 November 1999 |
| Docket Number | No. 26654., No. 26653 |
| Citation | 206 W.Va. 258,524 S.E.2d 179 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. John F. RIST, III, Petitioner, v. Honorable Cecil H. UNDERWOOD, Governor of the State of West Virginia, and Robert S. Kiss, Respondents. State of West Virginia ex rel. Richard A. Robb, W. Kent Carper, Rudolph L. Ditrapano, Roger D. Forman, Marvin W. Masters, Anthony J. Majestro, American Civil Liberties Union of West Virginia, Thomas W. Pettit, Mark E. Gaydos, Carl N. Frankovitch, Michael G. Simon, James C. Peterson, R. Edison Hill, Harry G. Deitzler, Michael C. Bee, and Norman Steenstra, Jr., Petitioners, v. Honorable Cecil H. Underwood, Governor of the State of West Virginia, and Robert S. Kiss, Respondents. |
John F. Rist, III, Esquire, Pro Se.
Ancil G. Ramey, Esquire, Michelle E. Piziak, Esquire, Steptoe & Johnson, Charleston, West Virginia, Attorneys for Governor Underwood.
Thomas A. Heywood, Esquire, Bowles Rice McDavid Graff & Love, Charleston, West Virginia, Attorney for Robert S. Kiss.
Sean P. McGinley, Esquire, DiTrapano, Barrett & DiPiero, Charleston, West Virginia and Lonnie C. Simmons, Esquire, Law Office of P. Rodney Jackson, Charleston, West Virginia, Attorneys for Petitioners.
Jennifer G. Walker, Esquire, Charleston, West Virginia, Attorney for Amicus Curiae Darrell E. Holmes, Clerk of the Senate.
M.E. "Mike" Mowery, Esquire, Charleston, West Virginia, Attorney for Amicus Curiae Gregory M. Gray, Clerk of the House of Delegates. McGRAW, Justice:
This case raises the issue of whether the Emoluments Clause contained in Article VI, § 15 of the West Virginia Constitution prohibits the Governor of this State from appointing the current Speaker of the West Virginia House of Delegates as a Justice of this Court, where, during the Speaker's current term of office, the Legislature enacted a pay increase with respect to such judicial office. The Emoluments Clause at issue, Article VI, § 15, provides in pertinent part:
No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this State, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people.
We are specifically asked to determine the meaning of the exception for "offices to be filled by election by the people," and whether this language renders the current Speaker eligible to assume the office to which the Governor has appointed him.
Any examination of our Constitution—the organic law of our State—must proceed with utmost care and concern for the future impact of our decision. The ripples created by our interpretation of this important question will propagate far into the future of our jurisprudence. Before commencing, we note the counsel of Thomas Jefferson:
On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.
Letter from Thomas Jefferson to Justice William Johnson, June 12, 1823, in Thomas Jefferson on Constitutional Issues (Va. Comm. on Constitutional Government 1962). With this wisdom as our watch star, we examine the provision at issue, in the context of our constitutional history, and in the context of the history of our State.
The facts in this case are not disputed. On August 31, 1999, the Honorable Margaret L. Workman resigned as a Justice of this Court, thereby creating a vacancy that can be filled only by gubernatorial appointment pursuant to Article VIII, § 7 of the West Virginia Constitution. On September 9, 1999, respondent, the Honorable Cecil H. Underwood, Governor of the State of West Virginia, announced his decision to appoint the Honorable Robert S. Kiss, currently Speaker of the House of Delegates, to fill Justice Workman's unexpired term, which ends following the 2000 general election. On September 22, 1999, Governor Underwood notified the Secretary of State that the appointment of Speaker Kiss as Justice of this Court would become effective, and that Speaker Kiss would begin to serve, at 12:00 a.m. on September 23, 1999.
Speaker Kiss was a member of the West Virginia House of Delegates during the 1999 legislative session.1 During that session, the Legislature passed H.B. 105, which inter alia amended W. Va.Code § 51-1-10a by increasing the salary of the Justices of this Court from $85,000 to $95,000, effective July 1, 1999. See 1999 W. Va. Acts ch. 8. Petitioners rely upon this event in asserting that Speaker Kiss is constitutionally disqualified from serving on this Court.
After Governor Underwood publicly announced the appointment of Speaker Kiss as a Justice of this Court, and prior to the filing of the petitions in this matter, a ceremony was scheduled for September 20, 1999 for the purpose of administering the oath of office. Once the issue that is the subject of this case was publicly raised, however, Speaker Kiss canceled the swearing-in ceremony.
On September 23, 1999, John F. Rist, III, in his capacity as a citizen and taxpayer of the State of West Virginia, filed the instant petition for writ of mandamus and/or prohibition. In his petition, Rist asserts that Speaker Kiss is ineligible to serve the unexpired term created by the resignation of Justice Workman, based upon Article VI, § 15 of the West Virginia Constitution. Later, on September 29, 1999, a second petition was filed by Richard A. Robb, and others, similarly asserting that Speaker Kiss is constitutionally disqualified from serving as a Justice on this Court pursuant to Article VI, § 15. Petitioners request that this Court issue an order directing Governor Underwood to appoint a constitutionally eligible person to fill the unexpired term of Justice Workman.
After the filing of the petitions in this matter, the Court issued a rule to show cause and determined that, because the principal issue—the eligibility of Speaker Kiss to occupy the position of Supreme Court Justice—was identical in both proceedings, the two cases should be consolidated and resolved jointly.
Petitioners seek to invoke this Court's original jurisdiction2 by way of the extraordinary remedy of mandamus. Traditionally, we have confined mandamus to "limited and truly exceptional circumstances." State ex rel. School Bldg. Auth. v. Marockie, 198 W.Va. 424, 432, 481 S.E.2d 730, 738 (1996) (citations omitted). Accord State ex rel. Charleston Bldg. Comm'n v. Dial, 198 W.Va. 185, 191, 479 S.E.2d 695, 701 (1996). This Court applies a now-familiar three-part test to determine whether mandamus relief is appropriate:
A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.
Syl. pt. 3, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
In Syllabus point 3 of State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976), the Court held that "[m]andamus lies to compel the governor to exercise his power of appointment under Section 9 of Article VII of the Constitution of West Virginia when the governor declines or fails to exercise his power for an unreasonable period of time." The Court in Moore noted that "[w]hile mandamus cannot be used to compel the choice of a particular individual, it can be used to compel the exercise of the appointive power." 159 W.Va. at 941, 230 S.E.2d at 642. Rather than seeking the appointment of a particular individual, however, petitioners effectively request the Court to compel Governor Underwood to exercise his appointive responsibilities in conformance with the constitutional requirement set forth in Article VI, § 15. For the purposes of the instant case, there is no significant distinction to be drawn between an appointment that is unreasonably delayed, and an appointment that contravenes constitutional requirements. Consequently, in line with our conclusion in Moore, mandamus will lie to resolve the question of whether a gubernatorial appointee is constitutionally qualified to assume the office to which he or she has been appointed.
Although petitioner Robb seeks to invoke this Court's mandamus jurisdiction, he nevertheless argues that we should apply the jurisprudential doctrine of ripeness to avoid passing on the issue presented. Robb's ripeness argument appears to be grounded upon the fact that Speaker Kiss purports to still be a member of the House of Delegates, and thus, according to petitioner's argument, the issue of eligibility has not matured into a controversy suitable for our adjudication because the Governor's appointee has not assumed office.
We concur with petitioner Robb's underlying assumption that one may not hold judicial and legislative offices at the same time. This is a fundamental tenet of the separation of powers doctrine contained in our Constitution:
No person holding any other lucrative office or employment under this State, the United States, or any foreign government; no member of Congress; and no person who is sheriff, constable, or clerk of any court of record, shall be eligible to a seat in the legislature.
W. Va. Const. art. 6, § 13; see also W. Va. Const. art. V, § 1. Additionally, no Justice of this Court may hold any other office: "No justice, judge or magistrate shall hold any other office, or accept any appointment or public trust, under this or any other government." W. Va. Const. art. 8, § 7. We have found in other cases that, where the prompt...
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