State ex rel. Sowards v. County Com'n of Lincoln County

Decision Date17 July 1996
Docket NumberNos. 23525,23541,s. 23525
Citation196 W.Va. 739,474 S.E.2d 919
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. William Edward SOWARDS II, Relator, v. COUNTY COMMISSION OF LINCOLN COUNTY; Paul D. Duncan, President, and Buster Stowers and Doug Waldron, Members; and Kim Cecil, Respondents. STATE of West Virginia ex rel. Lewis WALKER, Jr., Relator, v. Paul LAMBERT, Clerk of the Circuit Court of McDowell County; and Pete J. Beavers, Respondents.

3. The public policies in protecting fundamental rights, preserving electoral integrity, and promoting both political and judicial economy have prompted a practical approach in assessing whether an election case is appropriate for mandamus relief. The fundamental and constitutional right to run for public office cannot be denied unless necessary to achieve a compelling state interest. It is only when a writ of mandamus has been invoked to preserve the right to vote or to run for political office that this Court has eased the requirements for strict compliance for the writ's preconditions, especially those relating to the availability of another remedy.

4. The State of West Virginia through its Legislature retains the authority to prescribe reasonable rules for the conduct of elections, reasonable procedures by which candidates may qualify to run for office, and the manner in which they will be elected.

5. The State of West Virginia has a valid interest in preserving the integrity and 6. It is constitutionally permissible to suspend, or even to discharge, a deputy sheriff who seeks political office. As long as the political activity limitation does not infringe on the deputy sheriff's access to the ballot box or his or her ability to participate in nonpartisan political discussions and activities, the requirement of orderly management of law enforcement personnel outweighs the limited infringement on the First Amendment to the United States Constitution and Section 7 of Article III of the West Virginia Constitution.

[196 W.Va. 742] reliability of both the electoral process and its civil service laws. The Legislature may place limits on campaigning by public employees if the limits substantially serve state interests that are important enough to outweigh the employee's First Amendment rights. Thus, a legislative body may bar a public employee from becoming a candidate for an elected office not only to prevent potential conflict in the workplace between the employee and the supervisor-incumbent during the campaign, but also to prohibit any tacit coercion of fellow employees and subordinates to assist in a political campaign.

7. To achieve the goal of enfranchisement wherever possible, judicial authority to take a candidate off the ballot, especially after the voters have expressed their preference in a primary election, should be sparingly used.

8. Political candidacy is a fundamental interest which can be trod upon only if less restrictive alternatives are not available. It is only when an election has been subverted by a candidate's clear constitutional or statutory disqualification, bribery, fraud, intimidation, or similar unlawful conduct that a court should invalidate the preference of the voters and, in effect, annul the election. Therefore, a mere violation of W. Va.Code, 7-14-15(a) (1971), prohibiting deputy sheriffs from engaging in partisan political activity, is insufficient to set aside an election and, in effect, disenfranchise the voters of a county.

James M. Casey, Point Pleasant, for Relator Sowards.

J. David Cecil, Armada & Cecil, Hurricane, for Respondent Kim Cecil.

James M. Casey, Point Pleasant, and Charles H. Damron, Hamlin, for Relator Walker.

Lacy W. Wright, Jr., Welch, for Respondent Pete J. Beavers.

Sidney H. Bell, Pros. Atty. for McDowell County, Welch, for Respondent Paul Lambert.

CLECKLEY, Justice:

This case involves two mandamus actions challenging the eligibility of two candidates for elected offices in West Virginia. Both candidates are alleged to have maintained their civil service status while running for office. Finding common issues of law, we consolidated these actions for purposes of consideration and decision.

I. FACTUAL BACKGROUND

The relator in the first mandamus action, William E. Sowards II, is a citizen and taxpayer of Lincoln County, West Virginia. Mr. Sowards argues that Respondent Kim Cecil who appears to have received the most votes in the May 14, 1996, primary election for the Democratic nominee for sheriff 1 is ineligible to serve because Mr. Cecil did not resign his civil service position as deputy sheriff when he ran for the Office of Sheriff. Although Mr. Cecil was laid off from his deputy sheriff position at all times during his bid for sheriff, Mr. Sowards alleges Mr. Cecil continued to maintain his rights under the civil service system including accruing retirement time, vacation time, and seniority. Mr. Sowards claims he also is a laid off deputy sheriff who Mr. Sowards requests this Court to declare the Respondents County Commission of Lincoln County, West Virginia, sitting as a Board of Canvassers; Paul D. Duncan, President thereof, and Buster Stowers and Doug Waldron, Members thereof, (hereinafter Lincoln County Commission), whose responsibility it is to ascertain the true and actual results of the primary election, have a clear legal duty to not certify a winner as the Democratic nominee for sheriff. In addition, Mr. Sowards asks this Court to declare the Democratic nomination for Sheriff of Lincoln County as vacant and available to be filled by the appropriate Democratic committee.

[196 W.Va. 743] desired to run for sheriff but forewent the opportunity because he did not want to break the law by running without resigning and he did not want to resign and lose his civil service standing.

In response to Mr. Sowards' petition, Mr. Cecil states he was a "provisional" deputy sheriff and is not entitled to recall under the civil service system because he was not working under the system. Mr. Cecil denies maintaining any rights of retirement time, vacation time, and seniority under the system except to the extent he may be recalled under the relevant deputy sheriff's civil service statute. Mr. Cecil admits to being qualified to receive unemployment compensation while laid off and states he has been informed by the current sheriff, Jackie Cooper, that his name is on the list of deputy sheriffs to be recalled if sufficient funds become available. In addition, Mr. Cecil asserts that before he ran for sheriff he received an opinion from the Chief of Staff of the Office of Secretary of State, William H. Harrington, informing him that he was not prohibited from seeking public office. Mr. Cecil attached an affidavit from Mr. Harrington confirming this fact.

Mr. Cecil admits that mandamus is the appropriate action to test a candidate's eligibility for public office, but he challenges Mr. Sowards' use of mandamus in this case. Mr. Cecil argues the Lincoln County Commission is not a proper party to this action but, instead, Mr. Sowards should have named the Circuit Clerk of Lincoln County (hereinafter Lincoln Circuit Clerk). Mr. Cecil asserts the Lincoln County Commission has no authority to withhold the name of the successful Democratic sheriff nominee on the grounds alleged in the petition. Moreover, Mr. Cecil claims the petition only challenges his "right to continued coverage by the deputy sheriff's civil service system and has no bearing on his eligibility for public office." Therefore, Mr. Cecil moves this Court to dismiss or deny Mr. Sowards' petition and award Mr. Cecil costs and reasonable attorney's fees.

The second mandamus action before this Court was filed by Lewis Walker, Jr., who asserts he is a citizen and taxpayer of McDowell County, West Virginia. This action was brought against the Circuit Clerk of McDowell County (hereinafter McDowell Circuit Clerk), Paul Lambert, who is responsible for preparing and printing the ballot for the November general election, and Pete J. Beavers, who received the most votes to become one of the Democratic nominees for three available magistrate positions. Mr. Walker challenges the nomination of Mr. Beavers on the grounds Mr. Beavers merely received a leave of absence from his position as a deputy sheriff under the civil service system instead of resigning from that position to run for magistrate. Mr. Walker claims Mr. Beavers continued to accrue retirement time, vacation time, and seniority while on leave, and "has drawn compensation as a deputy while filing for and running a partisan campaign for magistrate." Mr. Walker asserts Mr. Beavers should have resigned his position prior to filing and, because he did not resign, he was not eligible to run and the McDowell Circuit Clerk has a clear legal duty to remove Mr. Beavers' name from the November ballot. Mr. Walker requests this Court to declare the nomination vacant and subject to being filled by the appropriate Democratic committee. Mr. Walker attached an affidavit from himself attesting to many of...

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