White v. Manchin, Nos. 16312

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation173 W.Va. 526,318 S.E.2d 470
PartiesBarbara K. WHITE and Brenda Joe v. A. James MANCHIN, Secretary of State; Joe Manchin, III; Jean Friend, Robert W. Dinsmore, and Jacques R. Williams, Ballot Commissioners of Monongalia County; and, Betty W. Toothman, Harry Cronin, and Hayes Webb, Ballot Commissioners of Marion County. Vaughnie HALL, Ireland Burns, and Mary Helmann v. A. James MANCHIN, Secretary of State; Charles M. Polan, Jr.; Riley Stone, W.H. Hertig, and James N. Aldridge, Ballot Commissioners of Cabell County; and Charlene Ferguson, Audrey Mudd, and Luther Wallace, Ballot Commissioners of Wayne County.
Decision Date13 July 1984
Docket Number16344,Nos. 16312

Page 470

318 S.E.2d 470
173 W.Va. 526
Barbara K. WHITE and Brenda Joe
v.
A. James MANCHIN, Secretary of State; Joe Manchin, III;
Jean Friend, Robert W. Dinsmore, and Jacques R. Williams,
Ballot Commissioners of Monongalia County; and, Betty W.
Toothman, Harry Cronin, and Hayes Webb, Ballot Commissioners
of Marion County.
Vaughnie HALL, Ireland Burns, and Mary Helmann
v.
A. James MANCHIN, Secretary of State; Charles M. Polan,
Jr.; Riley Stone, W.H. Hertig, and James N. Aldridge,
Ballot Commissioners of Cabell County; and Charlene
Ferguson, Audrey Mudd, and Luther Wallace, Ballot
Commissioners of Wayne County.
Nos. 16312, 16344.
Supreme Court of Appeals of West Virginia.
July 13, 1984.

Page 473

[173 W.Va. 528] Syllabus by the Court

1. "In West Virginia a special form of mandamus exists to test the eligibility to office of a candidate in either a primary or [173 W.Va. 529] general election. The proper party respondent in such special action in mandamus is the Secretary of State of the State of West Virginia in the case of an office to be filled by the voters of more than one county or the clerk of the circuit court in the case of an office to be filled by the voters of the county, and this action in mandamus, being a special creation of the evolving common law, is ripe for prosecution immediately upon a candidate's filing of his certificate of candidacy." Syl. pt. 5, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607, appeal dismissed sub nom. Moore v. McCartney, 425 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190 (1976).

2. "The eligibility of a candidate for an elective office may be determined in a proceeding in mandamus and, upon a determination therein that a candidate is ineligible to be elected to or to hold the office for which he seeks nomination or election, a writ of mandamus will issue directing the board of ballot commissioners to strike or omit such candidate's name from the primary or general election ballot." Syl. pt. 1, State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964).

3. "Where an action in mandamus is brought to test eligibility to office before a primary or general election it is proper to join as an original party respondent the real party in interest in order to avoid the delay attendant upon petitions to intervene and other procedural formalities which might frustrate the expeditious resolution of the case." Syl. pt. 6, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607, appeal dismissed sub nom. Moore v. McCartney, 425 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190 (1976).

3. "A citizen, tax payer or voter has such interest as entitles him to maintain mandamus to compel a board of ballot commissioners to discharge their duties lawfully ...." Syl. pt. 1, State ex rel. Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302 (1918); overruled on other grounds, Syl. pt. 12, State ex rel. Booth v. Board of Ballot Comm'rs, 156 W.Va. 657, 196 S.E.2d 299 (1973).

4. "Because there is an important public policy interest in determining the qualifications of candidates in advance of an election, this Court does not hold an election mandamus proceeding to the same degree of procedural vigor as an ordinary mandamus case." Syl. pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979).

5. "Though relief by mandamus may be refused when the petitioner has been guilty of unreasonable delay and the rights of the defendant or of innocent third parties will be prejudiced by the issuance of the writ, the circumstances surrounding the delay, the character of the case, the situation of the parties, the nature of the relief sought, and whether the rights of third parties have been innocently acquired, should be considered in determining whether the delay is unreasonable and justifies application of the equitable doctrine of laches; and what constitutes laches depends upon the facts and the circumstances of each particular case." Syl. pt. 6, Herzog v. Fox, 141 W.Va. 849, 93 S.E.2d 239 (1956).

6. Reading West Virginia Constitution art. VI, § 12, which provides that "No person shall be a senator ... who has not for one year next preceding his election, been a resident of the district or county from which he is elected," in pari materia with West Virginia Constitution art. VI, § 4, which provides that "where the [senatorial] district is composed of more than one county, both [senators] shall not be chosen from the same county," it is plain and unambiguous that senators representing senatorial districts composed of more than one county must be residents of both the county and the district from which they are elected.

7. In West Virginia, the term "residence" is synonymous with the term "domicile" for election law purposes.

8. "Domicile is a combination of residence (or presence) and an intention of

Page 474

remaining. If domicile has once existed, mere temporary absence will not destroy it, however long continued." Syl. pt. 2, Lotz v. Atamaniuk, 304 S.E.2d 20 (W.Va.1983).

[173 W.Va. 530] 9. "The important facts in determining the domicile of a person who has more than one residence are the physical character of each, the time spent and the things done in each place, and whether or not there is an intention to return to the original domicile." Syl. pt. 4, Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124 (1972).

10. "A change in residence for convenience in working conditions does not, without more, indicate a change in domicile." Syl. pt. 3, Shaw v. Shaw, 155 W.Va. 712, 187 S.E.2d 124 (1972).

11. The word "election," as used in West Virginia Constitution art. VI, § 12, refers to general elections and not to the selection of candidates in a primary.

12. The one year durational residency requirement for state senators found in West Virginia Constitution art. VI, § 12 serves a compelling state interest and does not violate the fundamental constitutional rights of either candidates or voters.

R.F. Gallagher and William F. Byrne, Morgantown, for petitioners in No. 16312.

A.J. Manchin, pro se.

John M. Pratt, Deputy Secretary of State, Charleston, for respondent A. James Manchin in No. 16312.

John Carrico, S.J. Angetti, Rudolph Di Trapano and Franklin D. Cleckley, Morgantown, for respondent Joe Manchin, III, in No. 16312.

Thomas H. Newbraugh, Pros. Atty. and Phillip M. Magro, Asst. Pros. Atty., Morgantown, for respondents Jean Friend, Robert W. Dinsmore and Jacques R. Williams in No. 16312.

Larry Harless, Morgantown, for petitioner in No. 16344.

Marianne K. Hoover, Asst. Atty. Gen., Charleston, for respondent A. James Manchin in No. 16344.

David C. Hardesty, Jr., Deborah A. Sink and Thomas A. Heywood, Charleston, for respondent Charles M. Polan, Jr., in No. 16344.

McGRAW, Justice:

These two original proceedings in mandamus, consolidated for preparation of this opinion, involve challenges to the qualifications of two candidates for nomination to the office of state senator. Each requires interpretation of West Virginia Constitution art. VI, § 12, which provides, in pertinent part, that "No person shall be a senator ... who has not for one year next preceding his election, been a resident of the district or county from which he is elected ...." There are primarily three issues involved in the interpretation of this constitutional durational residency requirement. First, whether mandamus is appropriate to enforce the provisions of West Virginia Constitution art. VI, § 12. Second, whether the respondent candidates are residents of the senatorial district and the county they respectively seek to represent. Finally, whether the respondent candidates will have been residents of the senatorial district and the county they respectively seek to represent for one year prior to the November general election.

In the first mandamus action, the petitioners are residents of and registered voters in the 14th Senatorial District, which is composed of parts of Marion and Monongalia Counties. See West Virginia Code § 1-2-1(d)(14) (1983 Supp.). Respondent A. James Manchin is Secretary of State and "chief election official of the State." See West Virginia Code § 3-1A-6 (1979 Replacement Vol.). Respondent Joe Manchin III [hereinafter "candidate Manchin"] is currently Delegate to the West Virginia Legislature from the 31st Delegate District and has filed a certificate declaring himself a candidate for nomination on the Democratic Party ticket to the office of state senator from the 14th Senatorial District. Respondents Jean Friend, Robert W. Dinsmore, and Jacques R. Williams are the Ballot Commissioners of Monongalia County.

Page 475

Respondents Betty W. Toothman, Harry Cronin, and Hayes Webb are the Ballot Commissioners of Marion County.

In the second mandamus action, the petitioners are residents of and registered voters in the 5th Senatorial District, which is [173 W.Va. 531] composed of parts of Cabell and Wayne Counties. See West Virginia Code § 1-1-2(d)(5) (1983 Supp.). Respondent Charles M. Polan, Jr. [hereinafter "candidate Polan"] is currently Delegate to the West Virginia Legislature from the 13th Delegate District and has filed a certificate declaring himself a candidate for nomination on the Democratic Party ticket to the office of state senator from the 5th Senatorial District. Respondents Riley Stone, W.H. Hertig, and James N. Aldridge are the Ballot Commissioners of Cabell County. Respondents Charlene Ferguson, Audrey Mudd, and Luther Wallace are the Ballot Commissioners of Wayne County. Respondent A. James Manchin is also party to this mandamus action.

The petitioners in these mandamus actions seek to compel the respondent Secretary of State to withdraw certification of the respondent candidates' candidacies and to compel the respondent ballot commissioners to omit or strike the names of the respondent candidates from the official Democratic Party primary election ballot to be used on June 5, 1984. 1

In the mandamus action against candidate Manchin,...

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27 practice notes
  • State ex rel. Carenbauer v. Hechler, No. 27458.
    • United States
    • Supreme Court of West Virginia
    • March 31, 2000
    ...(1995). Accord, e.g., State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329, 335, 233 S.E.2d 419, 423 (1977); White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470 In other words, when the State passes a law that infringes on a fundamental constitutional right, such as the right to stand ......
  • Rodgers v. Rodgers, No. 19596
    • United States
    • Supreme Court of West Virginia
    • November 13, 1990
    ...depends on the peculiar facts of each case. Hartley v. Ungvari, --- W.Va. ----, 318 S.E.2d 634 (1984); White v. Manchin, --- W.Va. ----, 318 S.E.2d 470 (1984); Hertzog v. Fox, 141 W.Va. 849, 93 S.E.2d 239 Moreover, where a fiduciary relationship exists and claims are made as to property all......
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...she retained her intention to remain in this state for an indefinite period of time. Citing Syl. pt. 8, in part, White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470 (1984) ("Domicile is a combination of residence (or presence) and an intention of remaining. If domicile has once existed, mere te......
  • Hutchinson v. Miller, No. 85-1548
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 7, 1986
    ...any [election] officer ... to do and perform legally any duty herein required of him." W.Va.Code Sec. 3-1-45. See, White v. Manchin, 318 S.E.2d 470 (W.Va.1984); State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1972); Marquis v. Thompson, 155 S.E. 462, 109......
  • Request a trial to view additional results
27 cases
  • State ex rel. Carenbauer v. Hechler, No. 27458.
    • United States
    • Supreme Court of West Virginia
    • March 31, 2000
    ...(1995). Accord, e.g., State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329, 335, 233 S.E.2d 419, 423 (1977); White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470 In other words, when the State passes a law that infringes on a fundamental constitutional right, such as the right to stand ......
  • Rodgers v. Rodgers, No. 19596
    • United States
    • Supreme Court of West Virginia
    • November 13, 1990
    ...depends on the peculiar facts of each case. Hartley v. Ungvari, --- W.Va. ----, 318 S.E.2d 634 (1984); White v. Manchin, --- W.Va. ----, 318 S.E.2d 470 (1984); Hertzog v. Fox, 141 W.Va. 849, 93 S.E.2d 239 Moreover, where a fiduciary relationship exists and claims are made as to property all......
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...she retained her intention to remain in this state for an indefinite period of time. Citing Syl. pt. 8, in part, White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470 (1984) ("Domicile is a combination of residence (or presence) and an intention of remaining. If domicile has once existed, mere te......
  • Hutchinson v. Miller, No. 85-1548
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 7, 1986
    ...any [election] officer ... to do and perform legally any duty herein required of him." W.Va.Code Sec. 3-1-45. See, White v. Manchin, 318 S.E.2d 470 (W.Va.1984); State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 196 S.E.2d 299 (1972); Marquis v. Thompson, 155 S.E. 462, 109......
  • Request a trial to view additional results

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