Veltri v. Parker

• Decision Date: 17 October 2013
• Docket Number: No. 12–0619.,12–0619.
• Citation: 232 W.Va. 1,750 S.E.2d 116
• Parties: Anthony J. VELTRI, Respondent Below, Petitioner v. Diane PARKER, in her Capacity as Chair of the Democratic Executive Committee of Taylor County, West Virginia, and John Michael Withers, Petitioners Below, Respondents.
• Court: West Virginia Supreme Court

232 W.Va. 1

750 S.E.2d 116

Anthony J. VELTRI, Respondent Below, Petitioner

v.Diane PARKER, in her Capacity as Chair of the Democratic Executive Committee of Taylor County, West Virginia, and John Michael Withers, Petitioners Below, Respondents.

No. 12–0619.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 25, 2013.

Decided Oct. 17, 2013.

SYLLABUS BY THE COURT

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo.” Syllabus point 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995).

3. “ ‘ “The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.” Syllabus point 1, Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).’ Syllabus point 2, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999).” Syllabus point 1, Alden v. Harpers Ferry Police Civil Service Commission, 209 W.Va. 83, 543 S.E.2d 364 (2001).

4. “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).

5. “The right to Mandamus, though a remedy broad in scope and expanded and enlarged in jurisdiction, must exist when the proceeding is instituted.” Syllabus point 9, State ex rel. Booth v. Board of Ballot Commissioners of Mingo County, 156 W.Va. 657, 196 S.E.2d 299 (1973).

6. “In that Mandamus was never intended to determine a right, but only to enforce a right, evidence cannot be taken and proof cannot be made in this Court or in a circuit court which would permit, in the first instance, the trial of an election contest by the use of the writ of Mandamus.” Syllabus point 3, State ex rel. Booth v. Board of Ballot Commissioners of Mingo County, 156 W.Va. 657, 196 S.E.2d 299 (1973).

7. “A certificate of election is conclusive to the result of the election until set aside or vacated in some manner authorized by law on direct attack and is not subject to collateral attack by Mandamus.” Syllabus point 11, State ex rel. Booth v. Board of Ballot Commissioners of Mingo County, 156 W.Va. 657, 196 S.E.2d 299 (1973).

James M. Wilson, Charles F. Johns, Devin C. Daines, Steptoe & Johnson PLLC, Bridgeport, WV, for the Petitioner.

Vincent Trivelli, The Law Office of Vincent, Trivelli, PLLC, Morgantown, WV, for the Respondents.

PER CURIAM.

The petitioner herein and respondent below, Anthony J. Veltri (“Commissioner Veltri”), appeals from the Circuit Court of Taylor County's March 16, 2012, summary judgment order, in which the court also granted a writ of mandamus. The effect of the mandamus was to remove Commissioner Veltri from his post as Taylor County Commissioner ¹ and to replace him with the respondent herein and petitioner below, John Michael Withers (“Mr.Withers”). On appeal to this Court, Commissioner Veltri assigns several errors, with the focus of the alleged improprieties being that the circuit court erred in its finding that Commissioner Veltri “was not Constitutionally qualified to run for the office of Taylor County Commissioner from the Tygart Magisterial District in either the 2010 primary or general elections.” After a careful review of the parties' briefs, the appendix record, the pertinentlegal authority, and listening to the parties' oral arguments, we reverse the circuit court's order and remand this case for further proceedings consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

This legal dispute presents a post-election mandamus action filed by Mr. Withers and his political party leader, Diane Parker. The action seeks the removal of Commissioner Veltri, having already been elected and sworn into office. Mr. Withers claims that Commissioner Veltri lives in the Western Magisterial District and is, therefore, constitutionally and statutorily ineligible to hold office for a position from the Tygart Magisterial District. Moreover, Mr. Withers urges that he is entitled to fill the vacancy created with the removal of Commissioner Veltri. The main question in this case, i.e., Commissioner Veltri's residency, is impacted by redistricting actions in the 1980s.

Since 1944, Commissioner Veltri has resided in the same house located in Grafton, West Virginia. As early as the late 1960s, Commissioner Veltri ran for various public offices, including his first campaign for County Commissioner in 1992. Prior to each election, Commissioner Veltri would file candidacy papers in which his district was verified by county officials. Each time that Commissioner Veltri ran for elected office, he was designated as a representative of Precinct 6 of Tygart District.

The relevant portion of Precinct 6 of Tygart District was subject to four redistricting actions from December 1983 to December 1984.² The first, adopted by the Commission in December 1983, moved a portion of Precinct 6 of Tygart District to Precinct 7 of Western District, which included Commissioner Veltri's physical location. Next, in April 1984, the commission reversed the 1983 action, finding that it “created an illegal precinct.” The impact of the April 1984 adoption was that Commissioner Veltri's residence was returned to Precinct 6 of Tygart District. Little more than a week later, still in April 1984, the commission decided that the earlier action in April “had created a serious problem.” The commission withdrew the early April action. Thus, this third action effectively reinstated the first action from 1983, which relocated Commissioner Veltri's residence as being part of Precinct 7 of Western District. Finally, in December 1984, the commission unanimously voted to “transfer voters moved from Precinct 6 to Precinct 7 back to their original Precinct [so that] Precinct 6 will remain in Tygart District.” Therefore, Commissioner Veltri's home location was restored as being a part of the Tygart District. In summary, Commissioner Veltri has lived at the same physical address since 1944. The location of his home consistently has been within Precinct 6 of Tygart District except for a short period of time in late 1983 and 1984 when redistricting plans placed the home within the Western District.

Pertinent to the currently-pending action before this Court is the 2010 election for Taylor County Commissioner. Mr. Withers was the Democratic candidate for the commission from the Tygart District. The incumbent, Commissioner Veltri, the Republican candidate from the Tygart District, had been serving as County Commissioner since 1992. Commissioner Veltri won the 2010 election, and was sworn into office on December 28, 2010. Subsequent thereto, on March 16, 2011, Mr. Withers filed a petition for writ of mandamus in the Circuit Court of Taylor County. In the petition for writ of mandamus, Mr. Withers asserted that Commissioner Veltri did not live in the Tygart Magisterial District and, accordingly, was not eligible for election therefrom.

Discovery ensued, and Commissioner Veltri testified that, prior to his decision to campaign for county commission for the 2010 election, he consulted voter registration records. This search led to his determination that both he and Mr. Withers lived in Precinct 6, the Tygart District. Commissioner Veltri submitted an affidavit explaining that he had run for public office “several times” since the 1960s, and that on each occasion of his running for office, the Taylor County Clerk verified that he was a resident of Precinct 6.

The circuit court entered a March 16, 2012, order granting summary judgment to Mr. Withers, within which the lower court issued a writ of mandamus, removing Commissioner Veltri from his post and seating Mr. Withers in his stead as County Commissioner. The lower court stated as follows:

16. No evidence was provided to the court to demonstrate that the procedures used by the Taylor County Commission in the series of Magistrate District redistricting and voting precinct changes actions between February 1984 and December 1984 complied with the statutory mandates relating to publishing and providing for open public hearings for proposed changes in the magisterial districts.³

17. Based on the records of the Taylor County Commission the residence of respondent Anthony J. (Tony) Veltri was at the in the (sic) year of 2010, and is currently located in the Western Magisterial District of Taylor County.

(Footnote added).

In reaching its conclusions, the circuit court determined that Commissioner Veltri was not qualified to run as a candidate of the Tygart District because he resided in the Western District. Thus, the lower court found that Mr. Withers, as a proper resident of Tygart District and as the second place vote recipient in the election, was the proper person to be certified as county commissioner. In conclusion, the circuit court's March 16, 2012, order stated:

3. The actions of the Taylor County Commission taken in 1983 to change the boundaries of the Taylor County magisterial districts were taken in compliance with the law of the State of West Virginia. That is, the changes were legally advertised providing notice to the public, a public hearing was held, and the Taylor County Commission adopted the changes unanimously in open meetings.

4. The Taylor County Commission actions of 1984 that attempted to reverse the 1983 actions action [sic] were not in compliance with the statutory law, and, therefore, had non [sic] legal effect. The Commission...