State ex rel. Robb v. Caperton, 22310
| Decision Date | 08 July 1994 |
| Docket Number | No. 22310,22310 |
| Citation | 191 W.Va. 492,446 S.E.2d 714 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Richard A. ROBB, Chairman, Kanawha County Republican Executive Committee, Relator, v. Honorable W. Gaston CAPERTON III, Governor, State of West Virginia, Respondent. |
Syllabus by the Court
1. "Questions of constitutional construction are in the main governed by the same general rules applied in statutory construction." Syllabus Point 1, Winkler v. State of West Virginia School Building Authority, 189 W.Va. 748, 434 S.E.2d 420 (1993).
3. A specific constitutional provision will be given precedence over a general constitutional provision relating to the same subject matter where the two cannot be reconciled.
4. Section 7 of Article VIII of the West Virginia Constitution relating to the manner of filling a vacancy for the office of a justice of the Supreme Court or a judge of a circuit court takes precedence over the more general provisions in Sections 7 and 8 of Article IV relating to the filling of vacancies for state and county officers.
5. Where there is a vacancy in the office of a supreme court justice or a circuit judge and the unexpired term is for more than two years under W.Va.Code, 3-10-3 (1990), the governor may fill the vacancy by appointment. The appointment shall continue until a successor timely files a certificate of candidacy, is nominated at the primary election next following such timely filing, and is thereafter elected and qualified at the next general election.
John A.W. Lohmann, Brent Wolfingbarger, Lohmann & Wolfingbarger, Charleston, for relator.
Donald L. Darling, Sr. Deputy Atty. Gen., Charleston, for respondent.
In this original proceeding for a writ of mandamus, the relator, Richard A. Robb, Chairman of the Kanawha County Republican Executive Committee, seeks to have us compel the respondent, the Honorable W. Gaston Caperton III, Governor of the State of West Virginia, to issue a directive of election under Section 7 of Article VIII of the West Virginia Constitution. The relator states that a vacancy exists in the office of circuit judge of the Circuit Court of Kanawha County. 1 It is the relator's position that the vacancy should be filled at the next general election, which is scheduled for November 8, 1994. Section 7 of Article VIII authorizes the respondent to fill a vacancy in the office of circuit judge. 2
The relator also relies on Section 7 of Article IV, which deals generally with the election of officers. In Section 7, there is language regarding the filling of vacancies. 3 In addition, Section 8 of Article IV authorizes the legislature to prescribe the manner in which public officers and agents "shall be elected, appointed and removed." 4
Initially, we must decide whether the constitutional language in Section 7 of Article VIII, with regard to the filling of a vacancy in the office of circuit judge, controls over the provisions of Sections 7 and 8 of Article IV, relating to the filling of a vacancy in the office of an elected official. We spoke to this point in Syllabus Points 1 and 2 of Winkler v. State of West Virginia School Building Authority, 189 W.Va. 748, 434 S.E.2d 420 (1993):
Winkler involved the validity of school revenue bonds. The contention was made that Section 1 of Article XII of our Constitution authorizing the legislature to "provide, by general law, for a thorough and efficient system of free schools" could override the specific provisions of Section 4 of Article X dealing with limitations on the State's bonded indebtedness. We held that the general provisions as to a thorough and efficient system of free schools could not validate school bonds that violated the State's indebtedness provisions in Section 4 of Article X of our Constitution. Thus, the principle expressed in Winkler is that a specific constitutional provision will be given precedence over a general constitutional provision relating to the same subject matter where the two cannot be reconciled.
The language of Section 7 of Article VIII in regard to the filling of a vacancy in the office of a circuit judge is quite detailed and considerably more specific than the general language in Sections 7 and 8 of Article IV. For example, the constitutional provision for judges in Section 7 of Article VIII makes a specific distinction where the "unexpired term be less than two years, or such additional period, not exceeding a total of three years[.]" In this situation, the governor, if authorized by law, may fill the vacancy for the entire unexpired term. No such language is contained in the general provisions for filling vacancies in Sections 7 and 8 of Article IV. Nor are we able to reconcile the language in these sections with Section 7 of Article VIII. Section 7 of Article IV is keyed to "the next general election"; while, on the other hand, Section 7 of Article VIII addresses with particularity the governor's right to make a temporary appointment for a stated period.
Thus, we hold that Section 7 of Article VIII relating to the manner of filling a vacancy for the office of a justice of the Supreme Court or a judge of a circuit court takes precedence over the more general provisions in Sections 7 and 8 of Article IV relating to the filling of vacancies for state and county officers.
When we turn to the applicable language in Section 7 of Article VIII, we observe that it contains three specific provisions. First, it vests in the governor the right to "issue a directive of election to fill such vacancy in the manner prescribed by law for electing a justice or judge[.]" Second, it provides that "in the meantime, the governor shall fill such vacancy by appointment until a justice or judge shall be elected and qualified." 5 Third, this section goes on to state that the governor may appoint for the unexpired term if the "unexpired term be less than two years, or such additional period, not exceeding a total of three years, as may be prescribed by law[.]" In the case at hand, the unexpired term runs until December 31, 2000.
Critical to any analysis for filling a vacancy for a judicial position under Section 7 of Article VIII is the phrase "in the manner prescribed by law[.]" The legislature in W.Va.Code, 3-10-3 (1990), prescribed how a vacancy in the office of a justice of the supreme court of appeals or a judge of a circuit court shall be filled. It provides that "the governor of the state [shall fill the vacancy] by appointment." 6 Where, as here, the unexpired term is longer than two years, "the appointment shall be until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term." 7
Thus, where there is a vacancy in the office of a supreme court justice or a circuit judge and the unexpired term is for more than two years under W.Va.Code, 3-10-3, the governor may fill the vacancy by appointment. The appointment shall continue until a successor timely files a certificate of candidacy, is nominated at the primary election next following such timely filing, and is thereafter elected and qualified at the next general election.
In this case, the vacancy did not occur until April 20, 1994, which was before the May 1994 primary, but after the time for filing a certificate of candidacy under W.Va.Code, 3-5-7 (1991). This section requires that a certificate of candidacy must be filed no "later than the first Saturday of February next preceding the primary election day[.]" It is clear that under W.Va.Code, 3-10-3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has "timely filed a certificate of candidacy, [and] has been nominated at the primary election next following such timely filing[.]" 8 Thus, under these requirements, there was no opportunity for a successor candidate in this case to timely file a certificate of candidacy for the May 1994 primary election.
The next primary election will not occur until May of 1996, and this election will be followed by the November, 1996, general election. Therefore, the governor's appointment to the vacant office of circuit judge will last until a successor timely files a certificate of candidacy; is nominated at the May, 1996, primary election; and is elected and qualified at the November, 1996, general election. The legislature's language is too plain to interpret, as the relator would have us do, that the current vacancy must be filled by the voters at the November, 1994, general election. Here, a vacancy exists and the unexpired term is for more than two years. Under W.Va.Code, 3-10-3, if the vacancy arose prior to the 1994 primary election, such that a timely petition of candidacy could have been filed, then the vacancy could be filled at the November, 1994, general election. However, this vacancy did not occur until after the time passed for filing a certificate of candidacy for the May, 1994, primary election.
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