State v. Tennant

• Decision Date: 07 September 2012
• Docket Number: No. 12–0899.,12–0899.
• Citation: 732 S.E.2d 507,229 W.Va. 630
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, ex rel, Allen H. LOUGHRY, II, candidate for the Supreme Court of Appeals of West Virginia, Petitioner v. Natalie E. TENNANT, West Virginia Secretary of State; Natalie E. Tennant, Gary A. Collias, William N. Renzelli, and Robert Rupp, members of the West Virginia State Election Commission; Glen B. Gainer, III, West Virginia State Auditor; and John Perdue, West Virginia State Treasurer, Respondents and Darrell V. McGraw, Jr., West Virginia Attorney General, Intervenor.

229 W.Va. 630
732 S.E.2d 507

STATE of West Virginia, ex rel, Allen H. LOUGHRY, II, candidate for the Supreme Court of Appeals of West Virginia, Petitioner
v.
Natalie E. TENNANT, West Virginia Secretary of State; Natalie E. Tennant, Gary A. Collias, William N. Renzelli, and Robert Rupp, members of the West Virginia State Election Commission; Glen B. Gainer, III, West Virginia State Auditor; and John Perdue, West Virginia State Treasurer, Respondents
and
Darrell V. McGraw, Jr., West Virginia Attorney General, Intervenor.

No. 12–0899.

Supreme Court of Appeals of
West Virginia.

Submitted Sept. 4, 2012.
Decided Sept. 7, 2012.

Held Unconstitutional
West's Ann.W.Va.Code 3–12–11(e)–(i)

[732 S.E.2d 508]

Syllabus by the Court

1. “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.” Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. The matching funds provisions, W.Va.Code § 3–12–11(e)–(i) [2010], set forth in the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program are unconstitutional because they place a substantial burden on privately financed candidates' free speech rights in violation of the First Amendment to the United States Constitution. The Pilot Program's goals—protecting the impartiality and integrity of the judiciary, and strengthening public confidence in the judiciary—are compelling state interests. Nevertheless, the matching funds provisions contained in the Pilot Program must be narrowly tailored to ensure that they do not infringe on privately financed candidates' First Amendment political speech rights. The matching funds provisions are not narrowly tailored and place a substantial burden on the unfettered political speech of the privately financed candidates. As a result,

[732 S.E.2d 509]

the matching funds provisions cannot withstand a strict scrutiny challenge under the United States Constitution based upon Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, ––– U.S. ––––, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011), and American Tradition Partnership, Inc. v. Bullock, ––– U.S. ––––, 132 S.Ct. 2490, 183 L.Ed.2d 448 (2012).

3. “A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.” Syllabus Point 6, State v. Heston, 137 W.Va. 375, 71 S.E.2d 481 (1952).

Marc E. Williams, Esq., Jenna E. Hess, Esq., Randall L. Saunders, Esq., Nelson, Mullins, Riley & Scarborough, LLP, Huntington, WV, for Petitioner.

Lisa A. Hopkins, Esq., General Counsel, West Virginia State Auditor's Office, Charleston, WV, for Respondent, Glen B. Gainer, III.

J. Adam Skaggs, Esq., Matthew Menendez, Esq., Brennan Center for Justice at NYU School of Law, New York, NY, for Petitioner.

Silas B. Taylor, Esq., Managing Deputy Attorney General, Charleston, WV, for Respondent, West Virginia State Election Commission.

Diana Stout, Esq., Special Assistant Attorney General, Charleston, WV, for Respondent, West Virginia State Treasurer, John Perdue.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Esq., Managing Deputy Attorney General, for Intervenor, Darrell V. McGraw, Jr.

Anthony J. Delligatti, Pro Se, Fairmont, WV, Amicus Curiae.

Anthony J. Majestro, Esq., Powell & Majestro, PLLC, Charleston, WV, for Amicus Curiae, Michael Callaghan.

KETCHUM, Chief Justice:

The Petitioner, Allen H. Loughry II, a candidate for the Supreme Court of Appeals of West Virginia, invokes this Court's original jurisdiction seeking a writ of mandamus to compel the Respondents ¹ to comply with W.Va.Code § 3–12–11(e) and approve the release of matching funds ² to his campaign. The Petitioner is a participant in the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program (the “Pilot Program”), W.Va.Code § 3–12–1 et seq. [2010]. Under the Pilot Program, a candidate who accepts public financing and complies with the requirements set forth in the statute receives an initial disbursement to finance his/her campaign. Petitioner Loughry received an initial disbursement of $350,000 for the general election. Thereafter, a publicly financed candidate may receive additional government funding, up to $700,000, from the Pilot Program, in direct response to the campaign spending of privately financed candidates. Once a set spending limit is exceeded by a privately financed candidate, a publicly financed candidate shall receive these matching funds pursuant to W.Va.Code § 3–12–11(e)– (i).

The Petitioner argues that because he has complied with each of the applicable requirements set forth in the Pilot Program, and because one of the privately financed candidates has spent a sum sufficient to trigger the matching funds provisions, the West Virginia State Election Commission (“Election

[732 S.E.2d 510]

Commission”) is statutorily required to disburse matching funds to his campaign.

After the Legislature enacted the Pilot Program in 2010, the U.S. Supreme Court struck down a similar matching funds provision enacted by Arizona. See Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, ––– U.S. ––––, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011). Arizona's matching funds provisions are similar to the matching funds provided for by our Pilot Program: once a privately financed candidate exceeds a set spending limit, a publicly financed candidate receives roughly one dollar, paid for by the government's matching funds provision, for every dollar spent by an opposing privately financed candidate. Thus, privately financed candidates are faced with a choice: spend their campaign funds over a set limit to get out their political message, thereby generating matching government funds for their publicly financed opponent or refrain from spending over a set amount to prevent the government from providing matching funds to their opponent. The U.S. Supreme Court discussed this choice in Bennett and determined that “Arizona's matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment.” Bennett, 131 S.Ct. at 2813.

Thus, our initial inquiry goes beyond whether the Election Commission has a statutory duty to authorize the release of the matching funds provided for under the Pilot Program to Petitioner Loughry. The predicate question is whether the matching funds provisions set forth in W.Va.Code § 3–12–11 et seq., violate the free speech clause of the First Amendment to the United States Constitution.³

Having fully considered the parties' arguments, as well as the briefs of amici curiae,⁴ and the applicable law, this Court denies the writ of mandamus requested by the Petitioner.

I. Facts & Background

The public financing Pilot Program was adopted after then-Governor Joe Manchin created an Independent Commission on Judicial Reform (“Commission”) in 2009 to “evaluate and recommend proposals for judicial reform in West Virginia.” The Honorary Chairwoman of the Commission was retired U.S. Supreme Court Justice Sandra Day O'Connor. The Commission identified three “troubling trends” that led to its creation and which it sought to address: (1) the erosion of the public's confidence in the State's judicial system; (2) the voluminous caseload before the West Virginia Supreme Court of Appeals; and (3) the surge in judicial campaign expenditures. The Commission noted that “[a]s campaign spending has increased, so too has the perception that interested third parties can sway the court system in their favor through monetary participation in the election process.” ⁵ The Commission stated that the increases in campaign spending, coupled with the Supreme Court's ruling in Caperton v. A.T. Massey Coal Co.,Inc., 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), could have a detrimental effect on the public's perception of West Virginia's judicial system. In Caperton, the Supreme Court held that a litigant's outsized campaign spending during the 2004 West Virginia Supreme Court of Appeals election created a constitutionally impermissible risk of judicial bias.

After studying the issues facing West Virginia's judiciary, the Commission recommended that the Legislature adopt a public financing Pilot Program for the West Virginia

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Supreme Court of Appeals election in 2012.⁶ The Commission explained:

West Virginia has witnessed a steady and substantial increase in the amount of money raised and spent by candidates in elections for Supreme Court of Appeals seats. As campaign expenditures rise, so too does the threat of bias, and certainly the public perception of bias, as candidates face mounting pressure to accept donations from lawyers and parties that may appear before them once they take a seat on the bench. This Commission therefore recommends a public financing pilot program to investigate the potential for removing the specter of out-of-control and otherwise troublesome spending from judicial elections.⁷

The Commission recommended that the public financing Pilot Program include a “provision for [the state to provide] ‘rescue funds' to be disbursed if a non-participating candidate exceeds certain spending limits.”

After the Commission's report was issued, the Legislature enacted the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program, W.Va.Code § 3–12–1 et seq. [2010]. The stated purpose of the Pilot Program is to:

[E]nsure the fairness of democratic...