v. In Mandamus/Prohibition
No. 99-2497
HONORABLE CECIL H. UNDERWOOD,
Governor of West Virginia, and
ROBERT S. KISS,
Respondents.
STATE OF WEST VIRGINIA EX REL. RICHARD A. ROBB, et al.,
Petitioners,
v. In Mandamus
No. 99-2562
CECIL H. UNDERWOOD,
Governor of the State of West Virginia, and
ROBERT S. KISS,
Respondents.
TABLE OF CONTENTS
Norris v. Gilmer, 183 Va. 367, 32 S.E.2d 88 (1944).
The Federalist No. 55 (James Madison).
Acts of the Legislature of West Virginia, 2nd Extraordinary Session, 1974, c. 126, §13.
Acts of the Legislature of West Virginia, 1st Extraordinary Session, 1981, c. 4, §13.
Acts of the Legislature of West Virginia, Regular Session, 1989, c. 183, §13.
Manual of the Senate and House of Delegates
, Sixty-first Legislature, 1973-74.
Manual of the Senate and House of Delegates, Sixty-fifth Legislature, 1981-82.
Manual of the Senate and House of Delegates, Sixty-ninth Legislature, 1989-90.
I. Historically, the prohibitions of Article VI, § 15 of the West Virginia Constitution have not
applied to the appointment of legislators to judicial office inasmuch as the office of
judge or justice is an office to be filled by election by the people.
The question as to whether the members of a legislative body may be corrupted by
appointments to public office is older than our country. The issue was dealt with in the Federalist
Papers by Publius [Madison].See footnote 3
3
In discussing whether the danger of corruption of Congress may be
apprehended from the other branches of the federal government, Madison rebutted fears of several
possible avenues for such corruption. He then turned to a discussion that was specific to the
apprehended misuse of appointments to civil offices.
The only means, then, which they can possess, will be in the disposition of
appointments. Is it here that suspicion rests her charge? Sometimes we are told that
this fund of corruption is to be exhausted by the President in subduing the virtue of
the Senate. Now, the fidelity of the other house is to be the victim. The
improbability of such a mercenary and perfidious combination of the several
members of government, standing on as different foundations as republican
principles will well admit, and at the same time accountable to the society over which
they are placed, ought alone to quiet this apprehension. But, fortunately, the
Constitution has provided a still further safeguard. The members of the Congress are
rendered ineligible to any civil offices that may be created, or of which the
emoluments may be increased, during the term of their election. No offices therefore
can be dealt out to the existing members but such as may become vacant by ordinary
casualties; and to suppose that these would be sufficient to purchase the guardian of
the people, selected by the people themselves, is to renounce every rule by which
events ought to be calculated, and to substitute an indiscriminate and unfounded
jealousy, with which all reasoning must be vain. The sincere friends of liberty who
give themselves up to the extravagancies of this passion are not aware of the injury
they do their own cause. As there is a degree of depravity in mankind which requires
a certain degree of circumspection and distrust, so there are other qualities in human
nature which justify a certain portion of esteem and confidence. Republican
government presupposes the existence of these qualities in a higher degree than any
other form. Were the pictures which have been drawn by the political jealousy of
some among us faithful likenesses of the human character, the inference would be
that there is not sufficient virtue among men for self-government; and that nothing
less than the chains of despotism can restrain them from destroying and devouring
one another.See footnote 4
4
As the various memoranda and briefs filed in the instant case indicate, the makers of
numerous state constitutions apparently shared Madison's optimistic “esteem and confidence” in
human nature and his contention that there is sufficient protection in the fact that “[n]o offices
therefore can be dealt out to the existing members but such as may become vacant by ordinary
casualties.” Consequently, a number of state constitutions eased the impact of the prohibition set
forth in the Federal Constitution by adding a proviso that excepted appointments to offices to be
filled by election by the people. One such constitution was that of our sister state, Virginia.
A decision of the Supreme Court of Appeals of Virginia, Norris v. Gilmer,See footnote 5
5
is helpful in
determining the meaning of Article VI, § 15 of the West Virginia Constitution. In the Norris case,
the Virginia court had to determine whether the petitioner was a qualified person to be appointed to
membership on the State Corporation Commission for an unexpired term. At the time of his
appointment, the petitioner was a member of the General Assembly of Virginia, having been elected
to and having qualified as a member of the Senate for a term of four years. Because of this fact,
doubt was expressed as to his eligibility for the office and the validity of his appointment thereto.
The constitutional provision before the Virginia court provided that no member of the general
assembly "during the term for which he shall have been elected shall be elected by the general
assembly to any civil office of profit in the state." [Emphasis added.] The court found that the
applicable constitutional and statutory law provided for the commissioners of the State Corporation
Commission to be elected by the General Assembly and that the petitioner was therefore ineligible
for the position.
The significance of the Norris case in the instant proceeding arises out of the fact that the
controlling constitutional provision had only been in effect in Virginia since 1927. Prior to that time,
the applicable provision of the Virginia Constitution was similar to W.Va. Const., art.VI, § 15,
containing the same exception for "offices filled by the election by the people." The Court's analysis
of the exception is as follows:
The argument is made that the appointment of the petitioner to fill the
vacancy does not violate section 45 of the Constitution, because, it is said, that while
that section originally provided that no member of the General Assembly "shall be
appointed or elected to any civil office of profit in the state except offices filled by
the election by the people," the present section, upon the recommendation of the
revisors, omitted the prohibition against "appointment" of such members. It is
pointed out that in recommending this change the revisors said: "no good reason is
seen why members of the General Assembly should not be eligible to appointive
office." (House Document No. 2, p. 30, House Journal, 1927 Ex.Sess.)See footnote 6
6
It is therefore made clear by the Norris case that, prior to the constitutional amendment of
1927, Virginia interpreted their exception clause in the same manner that the respondents contend
that the exception clause in the West Virginia Constitution should properly be interpreted. The
prohibition on appointments applied to appointive offices, but not to elective offices.
The common jurisprudential roots of Virginia and West Virginia should suggest that West
Virginia's interpretation of its prohibitory clause and the accompanying exceptions clause would be
similar to that of Virginia. Apparently, this is so. The historical interpretation or application of
Article VI, § 15 in West Virginia can be discerned from an examination of three particular
appointments of legislators to judicial office:
Frank E. Jolliffe of Lewisburg, Greenbrier County, was elected to a two year term in the
House of Delegates in the General Election of 1972, representing Greenbrier and Pocahontas
Counties.See footnote 7
7
During the term for which Mr. Jolliffe was elected to the Legislature, W.Va. Code, §51-
2-13 was amended by H.B. 1406 so that the annual salary for circuit judges was increased to twenty-
eight thousand five hundred dollars per year.See footnote 8
8
On May 30, 1974, during the term for which Mr.
Jolliffe was elected, Mr. Jolliffe resigned from the House of Delegates to accept appointment as a
Circuit Judge.
John R. Frazier, of Princeton, Mercer County, was elected to a two year term in the House
of Delegates in the General Election of 1980, representing Mercer, Monroe and Summers Counties.See footnote 9
9
During the term for which Mr. Frazier was elected to the Legislature, W.Va. Code, §51-2-13 was
amended by S.B. 12 so that the annual salary for circuit judges was increased from thirty-eight
thousand dollars to forty-five thousand dollars per year.See footnote 10
10
On October 24, 1981, during the term for
which Mr. Frazier was elected, Mr. Frazier resigned from the House of Delegates to accept
appointment as a Circuit Judge.
John W. Hatcher, of Fayetteville, Fayette County, was elected to a two year term in the
House of Delegates in the General Election of 1988, representing Fayette County.See footnote 11
11
During the term
for which Mr. Hatcher was elected to the Legislature, W.Va. Code, §51-2-13 was amended by
H.B.2868 so that the annual salary for circuit judges was increased from fifty thousand dollars to sixty-
five thousand dollars per year.See footnote 12
12
On December 6, 1990, during the term for which Mr. Hatcher was
elected, Mr. Hatcher resigned from the House of Delegates to accept an appointment as a Circuit
Judge.
II. The petitioners' interpretation of Article VI, § 15, contending that the office of Justice of
the Supreme Court of Appeals is sometimes an elective office and sometimes an
appointive office, would add language to that constitutional provision that does not
exist.
In their petition for writ of mandamus, the petitioners, Richard A. Robb, et al., contend that
a vacancy in the office of
Justice
of the Supreme Court of Appeals, with less than two years
remaining to an unexpired term, is an appointed office under article VIII, section 7 of the West
Virginia Constitution.See footnote 13
13
It is argued that this constitutional provision creates a distinction between
Supreme Court vacancies filled by election, and unexpired terms filled only by appointment.
A strong argument to counter the Robb petitioners' contention is set forth in the case of
Carter vs. Commission on Qualifications of Judicial Appointments.See footnote 14
14
In dealing with a similar issue,
the Supreme Court of California in Carter stated as follows:
If this section as originally adopted had any other meaning than that the exception
removed elective offices from the operation of the prohibitory clause, the inclusion
of the exception was meaningless and surplusage, for the section would then mean
that legislators were ineligible for appointment except when they obtained their
offices by election. There is of course the well-defined and fundamental difference
between the acquisition of an office by appointment on one hand and by election on
the other. An office is acquired by appointment in the exercise by the appointing
authority of the delegated power. An office is acquired by election as the direct
choice of all the members of the class or body from whom the choice can be made.
Some meaning must be ascribed to the exception clause and when we seek to
ascertain it, the reasonable, if not the only logical conclusion is that the exception
had the effect of describing the kind or character of the offices thereby removed from
the operation of the prohibitory clause and not the method by which the offices were
to be filled. [Emphasis added.]See footnote 15
15
Under Article VIII, § 7 of the West Virginia Constitution, all vacancies on the Supreme
Court are filled by appointment by the Governor. Then, in each instance, the office is filled by
election by the people at the next ensuing general election. This means that regardless of whether
the appointee is appointed for a period in the middle of an unexpired term or a period at the end of
an unexpired term, if that appointee wishes to continue in office beyond the limited period of
appointment, he or she must stand for election. In every case, the Governor appoints the person to
an elective office. If one looks at
Article VIII, § 7 of the West Virginia Constitution,
the principal
thrust of that section is plainly to establish the law that governs the election of a justice or judge
when a vacancy occurs. The section begins by establishing a mandatory duty upon the Governor:
If from any cause a vacancy shall occur in the office of a justice of the
supreme court of appeals or a judge of a circuit court, the governor shall issue a
directive of election to fill such vacancy in the manner prescribed by law for electing
a justice or judge of the court in which the vacancy exists. . .See footnote 16
16
The emphasis here is on filling the vacancy by election. As a corollary to issuing a directive
of election, the governor is directed to fill the vacancy by appointment “until a justice or judge shall
be elected and qualified.”See footnote 17
17
Finally, the last sentence of
Article VIII, § 7
reads as follows:
If the unexpired term be for less then two years, or such additional period, not
exceeding a total of three years, as may be prescribed by law, the Governor shall fill
such vacancy by appointment for the unexpired term.See footnote 18
18
Logic should inform us that this last sentence was not placed in the Constitution for the
purpose of converting the office of justice or judge from an elective office to an appointive office.
The language is there simply because when the unexpired term is less than two years, there is no
need for the Governor to issue a directive of election. The Constitution in this instance avoids
requiring the Governor to perform an unnecessary act, since an election for the office will take place
without his intervention. As in other instances anticipated by Article VIII, § 7, the office is to be
filled by election by the people. The Governor' s appointment is effected only to temporarily fill a
vacancy until the election is held.
In their petition, the Robb petitioners state that "when a justice vacates his/her office, leaving
an unexpired term of less than two years, that office cannot be filled 'by election by the people', and
the exception in Article VI, § 15 does not apply." This is an erroneous statement. It is the vacancy
that cannot be filled by election by the people. The office can and will be filled by election by the
people at the next general election. The nature of the office is not changed simply because time does
not permit a general election to fill the vacancy prior to the end of the unexpired term. The office
is still an elective office to be filled by election by the people. To paraphrase the Supreme Court of
California in the Carter case: Some meaning must be ascribed to the exception clause set forth in
Article VI, § 15
, and when we seek to ascertain it, the reasonable, if not the only logical conclusion
is that the exception has the effect of describing the kind or character of the offices thereby removed
from the operation of the prohibitory clause and not the method by which the offices are to be filled.
Respectfully submitted,
Darrell E. Holmes and
Gregory M. Gray, Movants
By Counsel
//s//
M. E. "Mike" Mowery (Bar No. 2665)
Counsel for Movants Darrell E. Holmes and Gregory M. Gray
Rm. M-404, Bldg. No. 1
1900 Kanawha Blvd., E.
Charleston, WV 25305-0470
(304) 340-3256 (office)
(304) 340-3231 (fax)
mowerm@mail.wvnet.edu
//s//
Jennifer B. Walker (Bar No. 208)
Counsel for Movants Darrell E. Holmes and Gregory M. Gray
Senate President's Office, Bldg. No. 1
1900 Kanawha Blvd., E.
Charleston, WV 25305-0800
(304) 357-7801 (office)
(304) 357-7839 (fax)
The foregoing instrument was acknowledged before me by Gregory M. Gray, this eighth day
of October, 1999.
Gregory M. Gray
My commission expires:
Notary Public
I, M. E. "Mike" Mowery, counsel for Darrell E. Holmes and Gregory M. Gray, do hereby
certify that service of the attached "Brief of the West Virginia Legislature as Amicus Curiae in
Support of the Respondents" was had up on the persons listed below by filing true copies thereof in
the United States mail, postage prepaid, addressed as follows:
Sean P. McGinley, Esq.
Ditrapano, Barrett & DePiero
604 Virginia Street, East
Charleston, WV 25301
Lonnie C. Simmons, Esq.
Law Office of P. Rodney Jackson
410 Washington Street, East
Suite 307
Charleston, WV 25301
John F. Rist, III, Esq.
Rist, Higgins & Associates
1800 Harper Road
Beckley, WV 25801
Thomas A. Heywood, Esq.
Bowles, Rice, McDavid, Graff & Love
PO Box 1386
Charleston, WV 25325-1386
All of which was done this eighth day of October, 1999.
M. E. "Mike" Mowery
Counsel for Movants Darrell E. Holmes and Gregory M. Gray
Rm. M-404, Bldg. No. 1
1900 Kanawha Blvd., E.
Charleston, WV 25305-0470
(304) 340-3256 (office)
(304) 340-3231 (fax)
mowerm@mail.wvnet.edu