Witten v. Butcher

Decision Date30 November 2016
Docket NumberNo. 16-1040,16-1040
Citation238 W.Va. 323,794 S.E.2d 587
Parties William Douglas Witten, Petitioner, v. Joshua Butcher, Respondent.
CourtWest Virginia Supreme Court

Harvey D. Peyton, Thomas H. Peyton, Peyton Law Firm, Nitro, West Virginia, Attorneys for Petitioner.

Michael B. Hissam, Ryan McCune Donovan, J. Zak Ritchie, Bailey & Glasser, LLP, Charleston, West Virginia, Attorneys for Respondent.

Davis, Justice:

This appeal was brought by the Honorable Judge William Douglas Witten ("Judge Witten") from a decision of a three-member Special Court that denied him relief in his contest of the May 10, 2016, nonpartisan election for the Office of Judge of the Seventh Judicial Circuit, Logan County, Division 1. In this appeal, Judge Witten argues that the Special Court should have declared him the winner of the election because of voting irregularities in Lane Precinct 4, Bulwark Precinct 1, and Sharples Precinct 31. After a careful review of the briefs and record submitted on appeal, we affirm.


The respondent in this proceeding, Joshua Butcher ("Mr. Butcher"), defeated incumbent Judge Witten for the open judicial seat in Division 1 of the Circuit Court of Logan County in the May 10, 2016, nonpartisan election. Judge Witten requested a recount of the ballots. On May 26, 2016, after a recount by the County Commission of Logan County, sitting as a board of canvassers,1 Mr. Butcher was declared the winner by a margin of 59 votes.2 This result was certified to the Secretary of State.

Judge Witten thereafter timely filed a "Notice of Election Contest" on June 6, 2016, with the Honorable Earl Ray Tomblin,3 Governor of the State of West Virginia, pursuant to the provisions of W. Va. Code § 3-7-3 (1963) (Repl. Vol. 2013).4 The notice of contest of election was served on Mr. Butcher. In the notice, Judge Witten requested that a Special Court be convened, pursuant to W. Va. Code § 3-7-3, to determine all matters he challenged in the election and that he be declared the winner. As required by statute, Judge Witten designated John Counts as his choice to serve as a member of the Special Court. Booth Goodwin was designated by Mr. Butcher as his selection as a member of the Special Court. The Governor appointed James S. Arnold as the third member of the Special Court.

Accordingly, on August 23, 2016, the Special Court convened at the courthouse in Logan County to hold a hearing. The hearing was substantively confined to challenges to voting at Lane Precinct 4, Bulwark Precinct 1, and Sharples Precinct 31. The record indicates that, during the hearing, seventeen witnesses testified, and exhibits, stipulations, and evidentiary depositions were introduced. At the conclusion of the hearing, two members of the Special Court found that "the evidence of the errors by election officials in the Bulwark, Sharples and Lane precincts did not rise to the level of demonstrating that their actions amounted to misconduct affecting the result of the election or rendering it unfair." The third member of the Special Court, John Counts ("Mr. Counts"), concurred with the majority as to the findings involving the Bulwark and Sharples precincts. However, Mr. Counts dissented from the findings regarding the Lane Precinct. Mr. Counts believed that all of the votes in that precinct should be disregarded, which would result in Judge Witten being declared the winner of the election. The decision of the Special Court was certified to the Governor as required by statute on October 17, 2016. This appeal by Judge Witten was thereafter filed.


The standard of review on appeal of an election contest proceeding was articulated by this Court in Syllabus point 6 of Brooks v. Crum , 158 W.Va. 882, 216 S.E.2d 220 (1975) :

While the appellate court may examine the record in the review of election contests in order to reach an independent conclusion, it merely determines whether the conclusions of law are warranted by the findings of fact, and it will not, as a general rule, disturb findings of fact on conflicting evidence unless such findings are manifestly wrong or against the weight of the evidence.

See also Syl. pt. 1, Tillis v. Wright , 217 W.Va. 722, 619 S.E.2d 235 (2005). Additionally, this Court reviews the lower tribunal's rulings on matters of law de novo . State ex rel. Bowling v. Greenbrier Cty. Comm'n , 212 W.Va. 647, 650, 575 S.E.2d 257, 260 (2002).


Initially, we observe that, in contested election cases, we must "remain ever mindful of the paramount principle that election laws are to be construed in favor of enfranchisement, not disenfranchisement." Bowling , 212 W.Va. at 649, 575 S.E.2d at 259. See also State ex rel. Sowards v. Cty. Comm'n of Lincoln Cty ., 196 W.Va. 739, 750, 474 S.E.2d 919, 930 (1996) ("[A] mere violation of W. Va. Code, 7-14-15(a), is insufficient to set aside an election and, in effect, disenfranchise the voters of a county. The sanctity of the ballot, which is the keystone of our democracy, must be preserved."); Syl. pt. 2, Pridemore v. Fox , 134 W.Va. 456, 59 S.E.2d 899 (1950) ("In the absence of a showing of fraud or misconduct on the part of election officers, preventing a free expression of the will of the voters, and affecting the result of the municipal election, irregularities in the conduct thereof by such officers, not shown to have affected its result, will not vitiate such election."). This Court held in Syllabus point 2 of Maynard v. Hammond , 139 W.Va. 230, 79 S.E.2d 295 (1953), that

[i]rregularities in the conduct of an election, even though they constitute a violation of the election laws, not shown to have affected its result, will not vitiate an election in the absence of a showing of fraud or misconduct preventing the free expression of the will of the voters.

In the instant proceeding, Judge Witten has alleged voting irregularities in three Logan County precincts: Bulwark, Sharples, and Lane. We will review the allegations of irregularities regarding each precinct separately.

However, before we analyze the substantive issues in this appeal we must first address an issue that impacts the scope of our authority to resolve election contest appeals under W. Va. Code § 3-7-3. In this proceeding the parties waived oral argument before this Court. However, W. Va. Code § 3-7-3 requires oral argument as follows:

[T]he special court shall file with the clerk of the supreme court of appeals all papers, documents, testimony, evidence, and records, or certified copies thereof, which were before it at the hearing resulting in the final decision from which the petitioner appeals, together with a copy in writing of its final decision; and, after argument by counsel , the court shall decide the matter in controversy, both as to the law and the evidence, as may seem to it to be just and right.

(Emphasis added). The statute's apparent mandatory requirement that oral argument be held in an appeal of a contested election is in direct conflict with Rule 18 of our Rules of Appellate Procedure. Specifically, Rule 18(a) provides as follows:

(a) Criteria for oral argument —Oral argument is unnecessary when:
(1) all of the parties have waived oral argument; or
(2) the appeal is frivolous; or
(3) the dispositive issue or issues have been authoritatively decided; or
(4) the facts and legal arguments are adequately presented in the briefs and record on appeal, and the decisional process would not be significantly aided by oral argument.

See also W. Va. R. App. P. 19 & 20 (discussing oral argument procedures for cases under these rules).

It is clear that, under Rule 18(a), oral argument in an appeal to this Court is discretionary; however, through W. Va. Code § 3-7-3, the Legislature has required this Court to hold oral argument in election appeals. The Legislature does not have the authority to impose such a requirement. We have made clear on numerous occasions that this Court has the exclusive constitutional "power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the state relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law." W. Va. Const. art. VIII, § 3. See also Syl. pt. 6, State Farm Fire & Cas. Co. v. Prinz , 231 W.Va. 96, 743 S.E.2d 907 (2013) ("Because it addresses evidentiary matters that are reserved to and regulated by this Court pursuant to the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution, West Virginia Code § 57-3-1 (1937), commonly referred to as the Dead Man's Statute, is invalid, as it conflicts with the paramount authority of the West Virginia Rules of Evidence."); Syl. pt. 3, Louk v. Cormier , 218 W.Va. 81, 622 S.E.2d 788 (2005)("The provisions contained in W. Va. Code § 55-7B-6d (2001) (Supp. 2004) were enacted in violation of the Separation of Powers Clause, Article V, § 1 of the West Virginia Constitution, insofar as the statute addresses procedural litigation matters that are regulated exclusively by this Court pursuant to the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution. Consequently, W. Va. Code § 55-7B-6d, in its entirety, is unconstitutional and unenforceable."); Syl. pt. 6, Mayhorn v. Logan Med. Found ., 193 W.Va. 42, 454 S.E.2d 87 (1994) (" Rule 702 of the West Virginia Rules of Evidence is the paramount authority for determining whether or not an expert is qualified to give an opinion. Therefore, to the extent that Gilman v. Choi , 185 W.Va. 177, 406 S.E.2d 200 (1990) indicates that the legislature may by statute determine when an expert is qualified to state an opinion, it is overruled.").

In view of our constitutional Rule-Making authority, we now hold that the provision in W. Va. Code § 3-7-3, requiring oral argument to be held in an appeal of a contested election, is invalid because it is in conflict with the oral argument criteria of Rule 18 of the West Virginia...

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