Converted WP file ristpet

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

JOHN F. RIST, III,

Petitioner,

VS.

HONORABLE CECIL H. UNDERWOOD,
Governor of West Virginia, and ROBERT S.
KISS,

Respondents.

______________________________________________

PETITION AND MEMORANDUM OF LAW
OF THE RELATOR, JOHN F. RIST, III, FOR A
WRIT OF MANDAMUS/PROHIBITION
_____________________________________________

John F. Rist, III, Esquire
RIST HIGGINS & ASSOC.
1800 Harper Road
Beckley, West Virginia 25801
Petitioner, Pro Se

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

JOHN F. RIST, III,

Petitioner,

VS.

HONORABLE CECIL H. UNDERWOOD,
Governor of West Virginia, and ROBERT S.
KISS,
Respondents.

PETITION AND MEMORANDUM OF LAW
OF THE RELATOR, JOHN F. RIST, III, FOR A
WRIT OF MANDAMUS/PROHIBITION
________________________________________________

The Petitioner, John F. Rist, III, respectfully represents to the Court as follows:

    1. This Court has original jurisdiction over this action pursuant to Article VIII, Section 3 of the Constitution of West Virginia and West Virginia Code Section 3-1-45.

    2.    John F. Rist, III is a citizen and taxpayer of West Virginia and an attorney licensed to practice law in West Virginia, whose address is 1800 Harper Road, Beckley, West Virginia 25801.

    3.    The Honorable Cecil H. Underwood is the Governor of the State of West Virginia, whose address is State Capitol, Charleston, West Virginia.

4. Robert S. Kiss is a Member and Speaker of the West Virginia House of Delegates and a party in interest to this proceeding, whose address is State Capitol, Charleston, West Virginia.

ENTITLEMENT TO RELIEF REQUESTED

5. The West Virginia Legislature, during the 1999 First Extraordinary Session, adopted an increase in the compensation for Justices of the West Virginia Supreme Court of Appeals (HB 105).

6. West Virginia Constitution Article VI, Section 15 provides as follows:

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.

7. No Member of the West Virginia Legislature of 1999 is eligible, during the term for which they were elected, to be appointed to fill a vacancy on the West Virginia Supreme Court of Appeals, based on the prohibition of Article VI, Section 15 of our Constitution.

8. The Respondent, Honorable Cecil H. Underwood, has appointed Robert S. Kiss, a Member and Speaker of the House of Delegates in 1999, to the vacant seat on the West Virginia Supreme Court of Appeals, created by the resignation of the Honorable Justice Margaret Workman [Exhibit A attached]; thus, the appointment of Robert S. Kiss to fill the

vacancy on the Supreme court of Appeals is prohibited by Article VI, Section 15 of our
Constitution.

    9.    West Virginia Code Section 3-1-45 creates a special right of action by mandamus to compel any person, including the Governor, having a duty under Chapter 3 of the West Virginia Code, to fulfill that duty.

    10.     Section 3-10-3 of the West Virginia Code requires the Governor of West Virginia to appoint an eligible person to fill a vacancy on the Supreme Court of Appeals, and the Governor has a mandatory non-discretionary duty not to appoint an ineligible person to that position.

    11.     The Petitioner is without adequate relief or remedy at law, in equity or otherwise, save for the relief prayed for in this Petition.

MEMORANDUM OF LAW IN SUPPORT OF PETITION

1. The language of Article VI, § 15 of the West Virginia Constitution is clear and unequivocal:

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 of the people.

(Emphasis added).

2. Where the language of a constitutional provision is clear, it shall be applied as written. In examining constitutional provisions, it is the duty of the Court to give effect to the clear, explicit, unambiguous and ordinary meaning of language; where the language of a provision in unambiguous, it must be given its literal meaning. Randolph Co. Bd. of Educ. v. Adams, 196 W.Va. 9, 467 S.E.2d 150 (1995); see also 16 Am Jur. 2d Constitutional Law 60 (1998).

3. The West Virginia Legislature, during the 1999 First Extraordinary Session, adopted an increase in the compensation for Justices of the West Virginia Supreme Court of Appeals (HB 105). Because of the passage of this bill, the appointment of any member of the 1999 Session of the West Virginia Legislature to fill a vacancy on the West Virginia Supreme Court of Appeals is prohibited by the clear language and proper application of Article VI, § 15. See 67 C.J.S. Officers, § 24 (1978).

WHEREFORE, Petitioner prays:

    1.    That a rule be issued by this Court directed to the Respondent, Honorable Cecil H. Underwood, Governor of the State of West Virginia, to show cause, if any he can, why he should not appoint a person to fill the vacancy on the Supreme Court who was not a member of the 1999 Legislature and who is otherwise eligible to perform the duties of Justice of the Supreme Court of Appeals of West Virginia.

    2.    That after the Respondent has had an opportunity to respond to such role, this Court do issue a peremptory writ of mandamus commanding the Respondent to appoint as a Justice to fill the vacancy on the Supreme Court of Appeals a person who was not a member of the 1999 Legislature and who is otherwise eligible for appointment to, and to fulfill the duties of, such office, or to otherwise mold relief by way of mandamus / prohibition to prevent the Governor of West Virginia from violating Article 6, Section 15 of the West Virginia Constitution.

    3.    That this Court give Petitioner such other and further relief as it may deem appropriate and as the case may require.

Respectfully submitted,

                        JOHN F. RIST, III
                        Petitioner, pro se       //s// John F. Rist III
                        John F. Rist, III, Esq.    (WVSB #3119)
                        RIST, HIGG1NS & ASSOC.
                        1800 Harper Road
                        Beckley, West Virginia 25801
                        Phone: (304) 255-1400
                       Fax: (304) 255-6914

VERIFICATION

JOHN F. RIST, III, being first duly sworn on his oath, states that he is a citizen and taxpayer of West Virginia and an attorney licensed to practice law in the State of West Virginia, the named Petitioner in this action, that he has read the Petition, knows the contents thereof and the facts and allegations therein contained, to be true, except such as are stated on information and belief, and that as to such allegations as are stated to be on information and belief, he believes them to be true.

//s// JOHN F. RIST, III

STATE OF WEST VIRGINIA,
COUNTY OF.RALEIGH
Taken, subscribed and sworn before me this 23rd day of September, 1999.

My commission expires:

CERTIFICATE OF SERVICE

I, JOHN F. KIST, III, Petitioner, pro se, hereby certify that the foregoing "PETITION AND MEMORANDUM OF LAW OF THE RELATOR, JOHN F. RIST, III, FOR A WRIT OF MANDAMUS/PROHIBITION" was served upon the following this 23rd day of September, 1999, by depositing true copies thereof in the United States Mail, postage prepaid, addressed as follows:

                Honorable Cecil H. Underwood
                Governor
                WV State Capitol Complex
               Charleston, West Virginia

                Robert S. Kiss
                Speaker, WV House of Delegates
                State Capitol Complex
               Charleston, West Virginia 25304

                Darrell McGraw, Attorney General
                Office of the Attorney General
                State Capitol Complex
                Charleston, West Virginia 25305

//s// John F. Rist, III