Counsel for the Speaker
    
                                                                       Thomas A. Heywood, Esq.
                                                                       WV State Bar ID No. 1703
                                                                       Bowles Rice McDavid Graff & Love
                                                                       P.O. Box 1386
                                                                       Charleston, WV 25325-1386
                                                                       Telephone (304) 347-1702

    No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this State, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people. . . . W. Va. Const. art. VIII, § 15. [Emphasis supplied].

Employees Association, Inc. v. Lau, 110 Nev. 715, 720, 877 P.2d 531, 535 (1994)(“If a constitutional provision is capable of being understood in two or more senses by reasonably informed persons, it must be liberally construed in favor of the right of voters to exercise their electoral choice.”); Sears v. Bayoud, 786 S.W.2d 248 (Tex. 1990)(“We have repeatedly recognized the principle that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility.”); Cannon v. Gardner, 611 P.2d 1207, 1211 (Utah 1980)(presumption exists in favor of eligibility): Vieira v. Slaughter, 318 So. 2d 490, 492 (Fla. Dist. Ct. App. 1975)(“If there be doubt or ambiguity in the provisions, the doubt or ambiguity must be resolved in favor of eligibility.”); Scharn v. Ecker, 88 S.D. 255, 218 N.W.2d 478 (1974)(presumption exists in favor of eligibility); Oliver v. City of Shreveport, 169 So. 2d 1, 4 (La. Ct. App. 1964)(“'There is a presumption in favor of eligibility of one who has been elected or appointed to public office, and any doubt as to the eligibility of any person to hold an office must be resolved against the doubt.' 67 C.J.S. Officers § 11, p. 126.”); Gilbert v. Breithaupt, 60 Nev. 162, 165, 104 P.2d 183, 184 (1940)(ambiguities to be resolved in favor of eligibility).

     B.    THE EMOLUMENTS CLAUSE IN THE WEST VIRGINIA CONSTITUTION CLEARLY EXCEPTS FROM ITS PROHIBITORY EFFECT “OFFICES TO BE FILLED BY ELECTION BY THE PEOPLE.” AND BECAUSE THE OFFICE OF JUSTICE OF THE SUPREME COURT OF APPEALS OF WEST VIRGINIA IS AN “OFFICE[ ] TO BE FILLED BY ELECTION BY THE PEOPLE,” SPEAKER KISS IS NOT INELIGIBLE FOR APPOINTMENT TO SUCH OFFICE.

    The Emoluments Clause in the West Virginia Constitution, W. Va. Const. art. VI, § 15, provides:
        No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this State, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people.

[Emphasis supplied]. It was obviously based, in part, on the Emoluments ClauseSee footnote 2 ² in the United States Constitution, which provides:

        No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . .

U.S. Const. art. I, § 6, cl. 2. Unlike the federal Emoluments Clause,See footnote 3 ³ however, which prohibits the appointment of a member of the United States Congress to any federal office which was created or the emoluments of which were increased during the member's term,See footnote 4 ⁴ West Virginia's Emoluments Clause permits the appointment of a member of the West Virginia Legislature to state offices “to be filled by election by the people.”
    West Virginia is not unique in its departure from the absolute prohibition contained in the federal Emoluments Clause.See footnote 5 ⁵ The constitutions of nine other statesSee footnote 6 ⁶ also exempt offices to be filled by election by the people:

        No senator or representative shall, during the term for which he shall have been elected, be appointed to any office of profit under this state, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by election by the people. Ala. Const. art. IV, § 59. [Emphasis supplied].

        A member of the Legislature may not, during the term for which the member is elected, hold any office or employment under the State other than an elective office. Cal. Const. art. IV, § 13. [Emphasis supplied].

        No Senator or Representative shall, during the term for which he may have been elected, be eligible to any office, the election to which is vested in the General Assembly; nor shall he be appointed to any civil office of profit, which shall have been created, or the emoluments of which shall have been increased, during such term; but this latter provision shall not be construed to apply to any office elective by the People. Ind. Const. art. IV, § 30. [Emphasis supplied].

        No senator or representative shall, during the time for which he shall have been elected, be appointed to any civil office of profit under this state, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by elections by the people. Iowa Const. art. III, § 21. [Emphasis supplied].

        No Senator or Representative shall, during the term for which he was elected, nor for one year thereafter, be appointed or elected to any civil office of profit in this Commonwealth, which shall have been created, or the emoluments of which shall have been increased, during the said term, except to such offices as may be filled by the election of the people. Ky. Const. § 44. [Emphasis supplied].

        No Senator or Representative shall, during the term for which the Senator or Representative shall have been elected, be appointed to any civil office of profit under this State, which requires the approval of the Legislature for appointment or which shall have been created, or the emoluments of which increased during such term, except such offices as may be filled by elections by the people. Me. Const. art. IV, § 10. [Emphasis supplied].

        No senator or representative, during the term for which he was elected, shall be eligible to any office of profit which shall have been created, or the emoluments of which shall have been increased, during the time such senator or representative was in office, except to such offices as may be filled by an election of the people. Miss. Const. art. IV, § 45. [Emphasis supplied].

        No Senator or member of the Assembly shall, during the term for which he shall have been elected, nor for one year thereafter be appointed to any civil office of profit under this State which shall have been created, or the emoluments of which shall have been increased during such term, except such office as may be filled by elections by the people. Nev. Const. art. IV, § 8. [Emphasis supplied].

        No Senator or Representative shall, during the time for which he may have been elected, be eligible to any office the election to which is vested in the Legislative Assembly; nor shall be appointed to any civil office of profit which shall have been created, or the emoluments of which shall have been increased during such term; but this latter provision shall not be construed to apply to any officer elective by the people. Or. Const. art. IV, § 30. [Emphasis supplied].

In two of these nine states, Alabama and California, there are reported decisions which interpret their constitutional provisions to allow the gubernatorial appointment of state legislators to publicly elected judicial offices.     
   
    In Opinion of the Justices, 278 Ala. 38, 38-39, 181 So. 2d 105, 106-07 (1965),See footnote 7 ⁷ Governor George C. Wallace sought to appoint a member of Alabama's House of Representatives to a circuit judgeship despite the fact that such judgeship was created during the Representative's legislative term. As previously noted, the Alabama Constitution provided:

        No senator or representative shall, during the term for which he shall have been elected, be appointed to any office of profit under this state, which shall have been created, or the emoluments of which shall have been increased during such term, except such offices as may be filled by election by the people.

Id. at 39, 181 So. 2d at 107. [Emphasis supplied]. Where the office of circuit judge was an office to be filled by election by the people, the Supreme Court of Alabama held that Alabama's Emoluments Clause did not preclude the appointment:
        If the section ended just before the word 'except,' no member of the Legislature could ever be appointed, during his term, to any office created by the Legislature of which he was a member. But the words, 'except such offices as may be filled by election by the people' must have some meaning. The only reasonable conclusion is that excepted from the rule of Section 59 is an appointment to an office which 'may be filled by an election by the people.' Therefore, they come within the exception in Section 59.

        We know that the offices of Circuit Judge and Circuit Solicitor (soon to be District Attorney) are offices of profit and are filled by election by the people. Therefore, they come with the exception in Section 59.

        The historical background gives credence to this holding. Section 59 of the 1901 Constitution is identical with the corresponding section of our first Constitution of 146 years ago_Article III, Section 25, Constitution of 1819. It was readopted without change in each of the 5 Constitutions adopted since then . . . .

        When the Constitution was adopted in 1819, all Judges and Circuit Solicitors were elected by the Legislature. It is obvious that the framers of our Constitution in 1819 wanted to prohibit a member of the Legislature from creating any offices for themselves, which was not subject to a vote of the people. In 1861, Circuit Judges began to be elected by the people but Judges of the Supreme Court and Chancellors continued to be elected by the Legislature until 1868; and Circuit Solicitors continued (except from 1868 to 1875) to be elected by the Legislature until the Constitution of 1901 required their election by the people.

        The Legislature continues to elect some people to offices of profit and it is this type of office that is forbidden for a legislator to create and accept appointment to during his term as a member of the Legislature.

        Our case history sustains this view. Only three of our cases have been called to our attention where this question was raised. In State ex rel. Attorney General v. Porter, 1 Ala. 688, decided in 1840, this court properly held that a member of the Legislature, which created a new circuit could not be elected as judge of that circuit by the Legislature. (We have already shown that in 1840 circuit judges were elected by that body.) And in Montgomery v. State, 107 Ala. 372, 18 So. 157, decided in 1894, it was held that a member of the Legislature, which had created the office of Police Judge in Birmingham, could not be elected to that position by the Legislature, the mode of election prescribed in the law. Finally, in Opinion of the Justices, 244 Ala. 386, 13 So.2d 674, decided in 1943, the court unanimously held that members of the Legislature could not be elected by the Legislature to the War Emergency Council since it was an office of profit.

        Thus we see that every time the question has come to this court in the past, it was a case where the member of the Legislature was elected or going to be elected by the Legislature to an office created by it and on which the people had no opportunity to vote or choose the occupant.

        In contrast, in 1939, a member of the Legislature was appointed to a circuit judgeship created during his term in the Legislature and no question was raised in the courts concerning the validity of the appointment.

        We think the exception in Section 59 makes the test whether or not the office can be filled by a vote of the people. If it is such an office, the exception in Section 59 permits a member of the Legislature to be appointed; but if the people are not permitted to vote on the occupant of the office, the prohibition in Section 59 applies.

Id. at 39-40, 181 So. 2d at 107-08. Accordingly, when presented with an identical constitutional exception to an Emoluments Clause, where Governor Wallace sought to appoint a member of the Alabama House of Representatives to a judicial office, the Supreme Court of Alabama held that the Representative was eligible for such appointment.

    The Supreme Court of California reached an identical result in Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal. 3d 179, 93 P.2d 140 (1939),See footnote 8 ⁸ where the Governor of California appointed a member of the California Senate to the Supreme Court of California. The Supreme Court of California set forth the deferential standard applicable to judicial review of gubernatorial appointments:

        At the outset it should be noted that the right to hold public office, either by election or appointment, is one of the valuable rights of citizenship. Mr. Mechem in his work on Public Officers, section 67, refers to the right to hold public office under our political system as an 'implied attribute of citizenship.' The exercise of this right should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office. People ex rel. Galvin v. Dorsey, 32 Cal. 296. The petitioner relies on these well-established rules in support of his position.

Id. at 182, 93 P.2d at 142. The court stated the issue before it as follows:

        The Constitution of 1849 contained the following provision (sec. 20, art. IV): 'No senator, or member of assembly, shall, during the term for which he shall have been elected, be appointed to any civil office of profit, under this State, which shall have been created, or the emoluments of which shall have been increased, during such term, except such office as may be filled by elections by the people.'

        This section was readopted in the Constitution of 1879, but was designated as section 19 of the same article in the new Constitution. The language of this section without the exception was plain and certain and could admit of no interpretation. Its import was clear, to the effect that members of the legislature were ineligible for appointment to the prohibited offices. But the inclusion of the exception had the effect of injecting doubt and uncertainty as to the limitation thereby placed upon the operation of the language which preceded it.

Id. at 182, 93 P.2d at 142. [Emphasis supplied]. Applying essentially the same analysis as the Supreme Court of Alabama, the Supreme Court of California decided the issue as follows:

        [T]he meaning of section 19 of article IV, both before and after the amendment of 1916, would appear to be in accordance with the interpretation contended for by the petitioner. If the 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, a 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 a delegated power. An office is acquired by election as the direct choice of all the members of the class or body from which the choice can be made. Some meaning must be ascribed to the excepting 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 and 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.

        If by the 1916 amendment it was intended to prohibit entirely the appointment of legislators to public office, it would have been a simple matter of employ[ing] language to express that intent. Since no substantial change was made, no clear intent to disqualify a legislator appears and, under the established rules of construction above referred to, the doubts must be resolved in favor of eligibility.

        Either approach to a solution of the question leads to the conclusion that under section 19 of article VI of the Constitution, a legislator may be appointed to that kind of office which is normally 'filled by election by the people.' The office of Associate Justice of the Supreme Court is such an office . . . .

Id. at 186-87, 93 P.2d at 144. [Emphasis supplied]. Likewise, in the instant case, where the office of Justice of the Supreme Court of Appeals of West Virginia is an office which is normally “filled by election by the people,” Speaker Kiss is simply not ineligible for appointment to such office.

    In addition to the Supreme Court of Alabama and the Supreme Court of California, the Mississippi Attorney General, called upon to interpret the exception “offices to be filled by election by the people” likewise determined that it exempts elective offices from the prohibition against the appointment of legislators to executive or judicial offices. In Section 45 of the Mississippi Constitution of 1890, 1997 WL 549661 (Miss. A.G. 1997),See footnote 9 ⁹ the Mississippi Attorney General was called upon to give his opinion regarding the following question:

        May a state legislator, who was a member during the 1997 session of the legislature which voted to increase the salary for, among others, the Public Service Commissioners, be appointed a Public Service Commissioner during his legislative term to fill a vacancy due to a Commissioner's resignation?

Id. at 1. Unlike members of the West Virginia Public Service Commission, members of the Mississippi Public Service Commission were elected. Accordingly, the Mississippi Attorney General determined that the Emoluments Clause in the Mississippi Constitution, which excepted “offices as may be filled by an election of the people” did not preclude a Mississippi legislator's appointment to the Mississippi Public Service Commission:

        By virtue of Section 77-1-1 of the Mississippi Code of 1972, members of the Public Service Commission of the State of Mississippi are elected as therein provided. Compensation for members of the Public Service Commission is established by enactments of the legislature, with the latest amendment thereto being enacted as Chapter 577, Laws of 1997. Chapter 577 amended Section 25-3-31 of the Mississippi Code of 1972 and increased the annual salaries of public service commissioners from $55,000.00 to $65,000.00. Said chapter became effective July 1, 1977.

    The fact that the office of Justice of the Supreme Court of Appeals of West Virginia is an office to be filled by election by the people provides an inherent safeguard against contradiction with the salutary purposes of W. Va. Const. art. VI, § 15.See footnote 10 ¹⁰ The absence of any improper motivation on the part of Speaker Kiss with respect to the recent pay raise for the office of Justice of the Supreme Court of Appeals of West Virginia is indisputable.See footnote 11 ¹¹ The primary impetus for the increase in the salary of all judges, including members of the Supreme Court of Appeals of West Virginia, came from the judicial, not the legislative branch. Should there be any doubt, however, the electorate, aware of the issue as a result of its coverage in the media,See footnote 12 ¹² will have an opportunity in a few short months to express at the polls any reservations regarding the appointment of Speaker Kiss.See footnote 13 ¹³ Although Speaker Kiss may face formidable opposition to his candidacy, the respondent seriously doubts that the issue of the judicial pay raise will warrant even the barest of mention. It is clear that the current opposition to the appointment of Speaker Kiss owes nothing to the judicial pay raise, but is rather the product of petty partisanship in the case of the former unsuccessful Republican candidate for Justice of the Supreme Court of Appeals of West Virginia and of fundamental ideological differences in the case of the former chairperson of the West Virginia Democratic Party.

    Some of West Virginia's most distinguished jurists, including the late Honorable William T. Brotherton, Jr., Justice of the Supreme Court of Appeals of West Virginia; the Honorable Richard Neely, Retired Justice of the Supreme Court of Appeals of West Virginia; the Honorable John W. Hatcher, Jr., Judge of the Circuit Court of Fayette County; and the Honorable James J. Rowe, Judge of the Circuit Court of Greenbrier County, all served in the West Virginia Legislature prior to their election or appointment to judicial office. Many of West Virginia's most able lawyers currently serve as members in the West Virginia Legislature. Those lawyers, as well as other lawyers who might aspire to legislative service, should not be deemed ineligible for appointment to judicial office merely as a consequence of such service at a time when a judicial office is created or an emolument thereof is increased. Otherwise, those present or future lawyer/legislators who also aspire to judicial service might withdraw from legislative service, thereby depriving the people an important pool of talented men and women whose continuity in public service can have a synergistic impact upon the evolution of the law. Moreover, there can be little doubt that those lawyer/legislators who are serving when the issue of the creation or increase in the emoluments of a judicial office is considered, and who might aspire to judicial service, will be more inclined to oppose such creation or increase in order to avoid ineligibility. Wisely, the framers of the West Virginia Constitution avoided this dilemma by excepting elective officesSee footnote 14 ¹⁴ from the prohibitory language of the Emoluments Clause.

    W. Va. Const. art. VIII, § 7 provides, in relevant part, that:

        If from any cause a vacancy shall occur in the office of a justice of the supreme court of appeals . . . the governor shall issue a directive of election to fill such vacancy in the manner prescribed by law for electing a justice . . . of the court in which the vacancy exists . . . and in the meantime, the governor shall fill such vacancy by appointment until a justice . . . shall be elected and qualified. If the unexpired term be less than two yearsSee footnote 15 ¹⁵ . . . the governor shall fill such vacancy by appointment for the unexpired term.

[Emphasis supplied]. Accordingly, the respondent clearly has the constitutional authority to appoint the next Justice of the Supreme Court of Appeals of West Virginia for the unexpired term. As previously noted, W. Va. Const. art. VI, § 15 provides, in relevant part, that:

        No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this State, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people. . . .         

[Emphasis supplied]. W. Va. Const. art. VIII, § 2 provides, in relevant part, that:

        The justices shall be elected by the voters of the State for a term of twelve years, unless sooner removed or retired as authorized in this article.

[Emphasis supplied].
    This Court has held that:

        “In ascertaining the intention of the people in adopting a constitution all parts of the constitution must be considered, every article, section, clause, phrase and word allowed some effect, and all parts, clauses, phrases and words harmonized, if possible. No part or word in it can be ignored, disregarded, treated as meaningless or denied purpose and effect, unless there be irreconcilable contradiction and repugnancy.” Point 3, syllabus, State v. Harden, 62 W. Va. 313, 58 S.E. 715, 60 S.E. 394.

        An elementary rule of construction is that, if possible, effect should be given to every part and to every word of a constitutional provision and that, unless there is some clear reason to the contrary, no part of the fundamental law should be regarded as surplusage.

        The objection of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it.

Syl. pts. 1, 2, and 3, Diamond v. Parkersburg-Aetna Corporation, 146 W. Va. 543, 122 S.E.2d 436 (1961). In this case, the people have spoken, excepting from the prohibition against the appointment of legislators to public offices all “offices to be filled by election by the people,” and electing the respondent as their Governor with the power to fill vacancies in the office of Justice of the Supreme Court of Appeals of West Virginia. As the Supreme Court of Alabama and the Supreme Court of California have decided, to interpret such provision, in light of the deference to the executive power of appointment, to preclude the gubernatorial appointment of a state legislator to a judicial office ultimately “to be filled by election by the people” would be to ignore, disregard, and otherwise render meaningless such exception. Accordingly, the respondent has the clear constitutional authority to fill the current vacancy with the appointment of Speaker Kiss as the “office” to which he is being appointed, i.e., Justice of the Supreme Court of Appeals of West Virginia, is, constitutionally, an office “to be filled by election by the people.”

                        THE HONORABLE CECIL H. UNDERWOOD, GOVERNOR OF THE STATE OF WEST VIRGINIA

                        By Counsel

                                                         //s// Ancil G. Ramey, Esq.
STEPTOE & JOHNSON                Ancil G. Ramey, Esq.
    Of Counsel                                   WV State Bar ID No. 3013
                                                        Michelle E. Piziak, Esq.
                                                        WV State Bar ID No. 7494
                                                        P.O. Box 1588
                                                        Charleston, WV 25326-1588
                                                        Telephone (304) 353-8112

                                                                                           //s// Ancil G. Ramey

Footnote: 1     ¹In State ex rel. Brotherton v. Moore, 159 W. Va. 934, 230 S.E.2d 638 (1976), this Court held that a writ of mandamus will lie to compel the Governor to exercise his or her power of appointment. Accordingly, the instant action is a proper procedural mechanism for resolving the instant dispute.

Footnote: 2     ²One reason for the inclusion of this provision in the Federal Constitution was “to take away, as far as possible, any improper bias in the vote of the Representative, and to secure to the constituents some solemn pledge of his disinterestedness.” J. Story, Commentaries on the Constitution of the United States, § 864 (1833). Another reason, according to Alexander Hamilton, was to prevent legislative bartering with the executive branch for appointments. The Federalist No. 76, at 483, 484 (A. Hamilton) (B. Fletcher ed. 1972)(“The Constitution has provided some important guards against the danger of executive influence upon the legislative body.”). Undoubtedly, the same motivations influenced the framers of state constitutions. See Brown v. Meyer, 787 S.W.2d 42, 45 (Tex. 1990)(“The purpose of article III, section 18 is to keep improper motivations of personal gain from influencing lawmakers when they establish the rewards of elective office.”); Warwick v. Chance, 548 P.2d 384, 387-88 (Alaska 1976)(“Although the exact language varies from state to state, all such provisions are aimed at a common goal: to remove improper motives for considerations of legislators in voting for increased salaries or the creation of new offices.”)(footnote omitted); State ex rel. Nelson v. Yuma Board of Supervisors, 109 Ariz. 448, 449, 511 P.2d 630, 631 (1973)(“There was concern that members of the Legislature might create positions for their own gain, or otherwise be subjected to pressures from the executive branch.”); Shields v. Toronto, 16 Utah 2d 61, 63, 395 P.2d 829, 830 (1964)(“The obvious purpose of Section 7, Article (VI) quoted above, was to guard against dishonesty or improper connivance by or with legislators and to prevent them from being influenced by ulterior schemes to enrich themselves at the expense of the public treasury by creating or increasing the pay of a public office and then taking advantage of it.”)(footnote omitted).

Footnote: 3     ³Interestingly, despite the seemingly clear prohibition against the appointment of members of Congress to federal offices, including federal judicial offices, history is replete with examples of such appointments. When Justice Hugo L. Black was appointed, for example, as an Associate Justice of the Supreme Court of the United States, despite the enactment of a statute during his tenure as a United States Senator which arguably increased the emoluments of the office, a suit was filed in the Supreme Court of the United States challenging such appointment. In Ex Parte Levitt, 302 U.S. 633, 58 S. Ct. 1, 82 L. Ed. 493 (1937), The suit was dismissed, however, on the ground that the petitioner lacked standing to institute the action.

Footnote: 4     ⁴Unlike West Virginia, the Emoluments Clause provision in most state constitutions contain a blanket prohibition against the appointment or election of state legislators to public offices that are created or the emoluments thereof increased during their legislative terms of office. Attacks on the constitutionality of such provisions have been uniformly rejected. See Fair v. State Election Board of Oklahoma, 879 P.2d 1223 (Okla. 1994); State ex rel. Anderson v. Chapman, 86 Wash. 2d 189, 543 P.2d 229 (1975); Hall v. Baum, 452 S.W.2d 699 (Tex. 1970).

Footnote: 5     ⁵Although it is unclear which state was first to except elective offices from the prohibition against the appointment of legislators to public office, but such provision was contained in the Constitution of Kentucky of 1799, which provided:

        No Senator or Representative shall, during the term for which he was elected, nor for one year thereafter, be appointed or elected to any civil office of profit under this Commonwealth, which shall have been created, or the emoluments of which shall have been increased during the time such Senator or Representative was in office, except to such

offices or appointments as may be made or filled by the elections of the people.

Ky. Const. art. II, § 25 (1799). [Emphasis supplied].

Footnote: 6     ⁶The constitutions of other states, such as Florida, formerly contained such exception, but were later changed. In State ex rel. West v. Gray, 74 So. 2d 114, 117 (Fla. 1954), the Florida Supreme Court discussed the history of the Florida Constitution:

        The Florida Constitutions of 1838, 1861, and 1865 expressly excepted from the organic provision 'such offices as may be filled by elections by the people.' Why, then, did the framers of our Constitution of 1885 decide to include elective as well as appointive offices within the constitutional inhibition? The minutes of the Constitutional Convention at which it was adopted do not reflect the discussion which resulted in its adoption in the present form_that is, as applicable to elective as well as to appointive offices. But it is know that, at that time, the people were just emerging from the reconstruction period following the War Between the States; they still bore the scars of the Carpetbag Rule; the memories of the political abuses suffered thereunder were still fresh in their minds; and we can well surmise that they intended to prohibit the 'trafficking' in public offices, both elective and appointive, from which they had suffered during that regime.

Footnote: 7     ⁷See Exhibit A.

Footnote: 8     ⁸See Exhibit B.

Footnote: 9     ⁹See Exhibit C.

Footnote: 10     ¹⁰As one constitutional scholar has observed:

        The exception, for “offices to be filled by election by the people,” recognizes that popular election to the office would ensure full public scrutiny and, ultimately, approval.

Robert M. Bastress, The West Virginia Constitution at 140. In other words, although a legislator may initially acquire an office through appointment, if such office is “to be filled by election by the people,” the public will shortly thereafter have an opportunity to approve or disapprove such appointment.

Footnote: 11     ¹¹If the most recent increase in the salary of the office of Justice of the Supreme Court of Appeals of West Virginia were deemed to render ineligible a member of the West Virginia Legislature who was serving at the time of such increase, one option would be to repeal such increase, with the effect of such repeal, due to W. Va. Const. art. VIII, § 7, limited to those not occupying such office at the time of the repeal. In 1892, the New Jersey Legislature repealed a salary increase for the office of Justice of the New Jersey Supreme Court in order to allow the New Jersey Governor to appoint a State Senator to a vacancy on the New Jersey Supreme Court. See Vreeland v. Byrne, 72 N.J. 292, 317, 370 A.2d 825, 838-39 (1977)(Hughes, C.J., dissenting). In light of the clear exemption of the publicly- elected office of Justice of the Supreme Court of Appeals of West Virginia, however, such repeal should be unnecessary under the present circumstances.

    Another option, the so-called “Saxbe fix,” see John F. O'Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 122 (1995), involves enactment of a bill reducing the salary of the proposed appointee to the salary in effect immediately prior to the most recent legislative increase. It was used in order to allow United States Senator William Saxbe to be appointed as Attorney General of the United States despite the fact that the salary for such office was increased during Saxbe's legislative term. See also Mark V. Tushnet, The Hardest Question in Constitutional Law, 81 Minn. L. Rev. 1, 1-2 (1996)(“On several occasions, Congress has enacted a statute reducing a cabinet member's salary to the point it was when the newly appointed senator's term began, allowing the senator to take a position as a cabinet member.”); Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907, 909 (1994)(discussing cabinet appointments of Senator Philander Knox in 1909, Senator William Saxbe in 1975, Senator Edmund Muskie in 1980, and Senator Lloyd Bentsen in 1993). In this case, Speaker Kiss has publicly announced his intention not to accept any salary in excess of that in effect prior to the most recent legislative increase. Again, however, in the respondent's view, this decision, though laudatory and reflecting well upon the character and fitness for office of Speaker Kiss, is unnecessary in light of the exception of the office of Justice of the Supreme Court of Appeals of West Virginia from the prohibitory effect of W. Va.. Const. art. VI, § 15.

    Finally, in Shields v. Toronto, supra at 69-70, 395 P.2d at 834-35, the Supreme Court of Utah held that where a salary increase for a particular office is minimal, which in Shields was about 5%, and when such salary increase is enacted on an across-the-board basis for all statewide offices, the prohibitive effect of Utah's Emoluments Clause was not triggered, stating that:

        Historically the legislature has served as a proving ground in which our citizens obtain experience in government service and the public learns of their qualifications for other public offices. Under the contended for literal application, this valuable part of the traditional processes of government would be greatly hampered. Beyond this, where men committed to public service were desiring to pursue such careers, a device would be available to political opponents, who might, by manipulating a modest or even an inconsequential pay raise through the legislature, prevent well-qualified persons from running from office. All this could happen however innocent the individual affected may be and in spite of anything he could do, even though he might work and vote against any such increase in salary. The foregoing discussion points up the danger in yielding to the temptation to adopt literal applications of a single proposition of law without regard to whether it will result in injustice and without giving due consideration to other rights that may be involved. But eagerness for easy solutions to complex problems often leads to error and injustice. More mature reflection dictates the propriety of weighing the claimed rights against all others that may be affected and seeking to balance and harmonize then in such a way as to best serve the purpose of according fair and just treatment to all concerned. . . .

        Upon the basis of our analysis of the total picture and for the reasons hereinabove set forth, we have drawn the following conclusions: That Section 7 of Article (VI) of our Constitution was intended to be applied to prevent any possibility of legislative connivance or impropriety of conduct, and not where, as here, there has been an overhaul and consolidation of salary statutes and a relatively small increase in the salary of state officials and where there is no possibility of such impropriety . . . .

Again, although this argument would apply to the instant circumstances, where salaries for all statewide officials were increased by a small amount and where there is not even a hint of impropriety, the clarity of the exception of elective offices from the constitutional prohibition against the appointment of legislators renders unnecessary resort to such argument.

Footnote: 12     ¹²It has been observed that the rise of modern media places the Emoluments Clause in a different context that when it was originally adopted:

        Public conditions are vastly different today. Many of the offices which were appointive under the original Constitution of 1885 have now, by amendment thereto, been made elective. With the free dissemination of news and the close coverage given the legislative deliberations by press and radio, the people are much better informed concerning the actions of their legislators than they were in 1885, and they can express their approval or disapproval of such actions at the polls. We have no doubt that, as to elective offices, Section 5 of Article III was calculated to, and did, serve a useful purpose in the early days of this state's history; indeed, it still does, within the reasonable limits and for the plain purposes for which it was enacted. But what was then thought to be a shield can, if so strictly interpreted as to enlarge it beyond its purpose, become a sword_a weapon which might easily eliminate capable men from offering for public office . . . .

State ex rel. West v. Gray, supra at 117-18. [Emphasis supplied]. See also Mark V. Tushnet, The Hardest Question in Constitutional Law, supra at 4 (“The danger against which the provision guards is not longer a serious one, at least compared to similar dangers against which the Constitution does not protect us. Further, the rise of an aggressive investigative press has made explicit trades impossible.”).

Footnote: 13     ¹³It is significant to note that, taken literally, W. Va. Const. art. VI, § 15, in the absence of the exception “except offices to be filled by election by the people,” would prohibit a member of the West Virginia Legislature from succeeding himself or herself if, during his or her term of legislative service, a pay raise was enacted. Moreover, it would prevent the appointment of a member of the West Virginia Senate or the West Virginia House of Delegates to the other chamber to fill a vacancy in such office under such circumstances. Fortunately, the exception provides an important safeguard against such absurd applications of the Emoluments Clause.

Footnote: 14     ¹⁴It is important to be mindful that W. Va. Const. art. VI, § 15, still prohibits the appointment of legislators to purely appointive offices. Under West Virginia law, the respondent is responsible for the appointment of dozens of public officials. Under a single statute alone, W. Va. Code § 6-7-2a, the respondent is responsible for the appointment of the administrator of the division of highways; the administrator of the division of health; the administrator of the state tax division; the administrator of the division of energy; the administrator of the division of corrections; the administrator of the division of natural resources; the administrator of the division of public safety; the administrator of the lottery division; the director of the public employees insurance agency; the administrator of the division of banking; the administrator of the division of insurance; the administrator of the division of culture and history; the administrator of the alcohol beverage control commission; the administrator of the division of motor vehicles; the director of the division of personnel; the adjutant general; the chairman of the health care cost review authority; the members of the health care cost review authority; the director of the human rights commission; the administrator of the division of labor; the administrator of the division of veterans affairs; the administrator of the division of emergency services; the members of the board of parole; the members of the employment security review board; and the members of the workers' compensation appeal board. Under W. Va. Const. art. VI, § 15, no legislator who serves when the salaries are increased for these purely appointive offices would be eligible for appointment to such offices.

Footnote: 15     ¹⁵When the term of a departing Justice of the Supreme Court of Appeals of West Virginia is less than two years, there will be no general election until expiration of such term. Accordingly, this constitutional provision is necessary in order to avoid the expense of conducting a special election to fill such vacancy, while reserving the ultimate decision regarding permanent replacement of the departing Justice to the voters. As with the appointment of the California legislator in Carter, Speaker Kiss will serve the balance of the unexpired judicial term until the results of the next election are determined, which does not render “appointive” the “elective” office of Justice of the Supreme Court of Appeals of West Virginia.