“We have recognized in exceptional circumstances that it may be this Court's proper role to entertain an occasional friendly, 'test case' lawsuit . . . .” The reporters are replete with cases decided by this Court where the parties were allies, not adversaries, seeking the resolution of important legal or constitutional issues. In State ex rel. School Building Authority v. Marockie, 198 W. Va. 424, 481 S.E.2d 730 (1996), for example, the School Building Authority filed a petition for writ of mandamus in this Court seeking to compel its President to execute documents with respect to the issuance of school refunding bonds. This Court did not reject this obviously cooperative suit as “collusive,” but rather decided the constitutional issue presented and issued a writ of mandamus. See also State ex rel. Gainer v. West Virginia Board of Investments, 194 W. Va. 143, 459 S.E.2d 531 (1995); State ex rel. Marockie v. Wagoner, 190 W. Va. 467, 438 S.E.2d 810 (1993); State ex rel. Department of Employment Security v. Manchin, 178 W. Va. 509, 361 S.E.2d 474 (1987); Vanscoy v. Neal, 174 W. Va. 53, 322 S.E.2d 37 (1984); State ex rel. City of Charleston v. Coghill, 156 W.Va. 87, 207 S.E.2d 113 (1973). With particular relevance of the eligibility of persons to hold public office, this Court has noted:

        Experience dictates that there are occasions on which courts must undertake something in the nature of advisory opinions. We have done this in cases involving elections because of the expense attendant upon campaigns and the deleterious effect on representative government which uncertainty in elections causes. State ex rel. Maloney v. McCartney, 159 W. Va. 513, 223 S.E.2d 607 (1976).

Alsop v. McCartney, 159 W. Va. 829, 834-35, 228 S.E.2d 278, 281 (1979). Likewise, in the instant case, where the eligibility of Speaker Kiss has been challenged, a test case was an appropriate vehicle for securing the judicial resolution of such eligibility.

    The petitioners, most of whom are trial lawyers, are knowledgeable regarding the use of a “test case” or “friendly suit” in cases of this type. Their disingenuous efforts to obfuscate the real issue in this case with false charges of impropriety are illustrative of their mean- spiritedness. The central issue in this case is simple. Is the “office” of “Justice of Supreme Court of Appeals of West Virginia” an “elective” office or an “appointive” office? The West Virginia Constitution expressly provides that the office is an elective office. W. Va. Const. art. VIII, § 3. Moreover, two state appellate courts, considering identical constitutional language, have upheld the “appointment” of state legislators to “elective” judicial office. Opinion of the Justices, 278 Ala. 38, 181 So. 2d 105 (1965)(“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.”)(emphasis supplied); Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal. 3d 179, 93 P.2d 140 (1939)(“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.”)(emphasis supplied). In neither case did these courts accept the petitioners' argument that because the legislator would obtain the “elective” judicial office by “appointment,” such fact rendered the office “appointive” for purposes of the constitutional exception to the prohibition. Unless this Court intends to interpret the words “ except offices to be filled by election by the people” differently than the Supreme Court of Alabama interpreted the words “ except such offices as may be filled by election by the people” and than the Supreme Court of California interpreted the words “ except such office as may be filled by elections by the people,” it should immediately enter an order ruling Speaker Kiss eligible for appointment to the Office of Justice of the Supreme Court of Appeals of West Virginia.

     B.    CASES IN JURISDICTIONS WITHOUT THE “ELECTIVE OFFICE” EXCEPTION TO THE CONSTITUTIONAL PROHIBITION AGAINST THE APPOINTMENT OF LEGISLATORS TO PUBLIC OFFICE HAVE NO APPLICATION IN THIS CASE.

    The petitioners devote most of their legal argument to state constitutional provisions that do not contain an “elective office” exception. 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]. The petitioners rely almost exclusively upon the decision by the Supreme Court of Alaska in Warwick v. State ex rel. Chance, 548 P.2d 384 (Alaska 1976). The Alaska Constitution, however, unlike West Virginia's, does not contain the provision “except offices to be filled by election by the people”:

        During the term for which elected and for one year thereafter, no legislator may be nominated, elected, or appointed to any other office or position of profit which has been created, or the salary or emoluments of which have been increased, while he was a member.

Alaska Const. art. II, § 5. [Emphasis supplied]. Apples and oranges might make a nice fruit salad, but they do not constitute a very persuasive legal argument. Alaska's Constitution does not contain the “elective office” exception so prominent in West Virginia's Constitution. Accordingly, the fact that the Supreme Court of Alaska might block the appointment of a state legislator to judicial office, whether elective or appointive, is inconsequential where West Virginia's Constitution contains a clear exception for “elective” judicial offices.

    The petitioners also rely upon several other cases in states without the “elective office” exception where legislators sought to avoid the blanket prohibition against their appointment by special legislation or by remitting the increased salary. Again, these cases obviously have no application to West Virginia where (1) its Constitution contains an “elective office” exception and (2) no special legislation nor remittance of salary is necessary to avoid a blanket prohibition. Even as the petitioners concede, “In the case at bar, Respondent Kiss has not been provided a special exemption by the West Virginia Legislature (and even had such an exemption been provided, such exemption would be invalid . . . .” Petition at 10. This classic strawman argument, i.e., raising impertinent, incontestable issues as a means of obfuscation, obviously bears no relevance to the relatively straightforward issue presented by this case, i.e, is the Office of Justice of the Supreme Court of Appeals an “elective” or an “appointive” office?

     C.            IT IS WELL-SETTLED THAT WHETHER AN “OFFICE” IS “ELECTIVE” OR “APPOINTIVE” DEPENDS SOLELY UPON THE OFFICE ITSELF AND NOT UPON THE MANNER IN WHICH AN INDIVIDUAL ASSUMES SUCH OFFICE.

    The petitioners' argument regarding the sole issue in this case is quite inventive. They assert, apparently for the first time in the history of Anglo-American jurisprudence, that an “office” can be both “elective” and “appointive.” The absurdity of this argument is self- apparent. 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]. Accordingly, the Office of Justice of the Supreme Court of Appeals of West Virginia is an “elective office.” When justices die, resign, or retire, a vacancy is created.

In order to provide a mechanism for filling such vacancy, W. Va. Const. art. VIII, § 7 states, in relevant part, that:

        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, and the justice or judge shall be elected for the unexpired term; and in the meantime, the governor shall fill such vacancy by appointment until a justice or judge shall be elected and qualified. If the unexpired term be less than 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.

The framers of the West Virginia Constitution recognized that the wheels of justice cannot be allowed to grind to a halt until the next election. Vacancies must be filled until the next election is to be conducted. In West Virginia, statewide general elections are conducted every two years. If the term of a departing justice or judge expires more than two years prior to the next general election, a Governor has time to issue a directive of election, which may be conducted prior to expiration of such term. If the term of a departing justice or judge, however, less than two years prior to the next general election, the West Virginia Constitution does not require the Governor to issue a directive of election, because the term will expire prior to such election.

    The dubious constitutional scholarship of one of the petitioners regarding W. Va. Const. art. VIII, § 7, resulted in this Court's decision in State ex rel. Robb v. Caperton, 191 W. Va. 492, 446 S.E.2d 492 (1994), where it held in Syllabus Point 5 that:

        Where there is a vacancy in the office of a supreme court justice or a circuit judge and the unexpired term is for more than two years under W. Va. Code, 3-10-3 (1990), the governor may fill the vacancy by appointment. The appointment shall continue until a successor timely files a certificate of candidacy, is nominated at the primary election next following such timely filing, and is thereafter elected and qualified at the next general election.

    The distinction between “elective office” and “appointive office” is well-recognized. W. Va. Code § 3-1-18, for example, provides, in relevant part, that “If the Legislature shall hereafter create any elective office, or make any office now filled by appointment an elective office, in the state or in any subdivision thereof, the person to fill the same shall be elected at the general election last preceding the beginning of the term of such office.” W. Va. Code § 5-10-22c(c) provides, in relevant part, that “In respect of an appointive office, as distinguished from an elective office . . . .” W. Va. Code § 8-5-10 provides, in relevant part, that “Unless otherwise provided by charter provision or ordinance, when a vacancy shall occur from any cause in any municipal elective office, the vacancy, until the next succeeding regular municipal election and until the qualification of an elected successor, shall be filled by appointment by the governing body from among the residents of the municipality eligible under this article.”

    In State ex rel. Harmon v. Board of Canvassers, 87 W. Va. 472, 105 S.E. 695, 696-97 (1921), this Court recognized the “appointment” of persons to “elective offices,” stating that:

        To hold that vacancies in elective offices shall be filled for the unexpired term would render that part of section 1, c. 4, of the Code above quoted, and possibly that part of section 7, art. 4, of the Constitution, abortive. How then shall section 1, chapter 7 be construed? It was evidently intended to mean that where the vacancy was in an elective office the appointment should be until the next general election, but where the vacancy occurs in an appointive office, such as commissioner of banking, tax commissioner, and the like, the appointment shall be for the unexpired term. Under this construction no violence is done to the constitutional provision, the two acts harmonize with each other and with the Constitution, and vigor is given to each. Under the well-known rule of statutory construction every statute must be given such construction as to enable it to have effect, and be in harmony with the Constitution. Bridge Co. v. County Court, 41 W. Va. 658, 24 S. E. 1002.

        The general policy of representative government, where the officers, the servants of the people, are selected by election, is that the electorate shall have the right and opportunity of selecting officers to fill vacancies in elective offices. At least that is the policy of this state as evidenced by its Constitution and general laws. A vacancy in the office of Governor, if occurring more than 40 days preceding a general election, shall be filled at such election. Similar provisions are made for filling vacancies in the office of auditor, treasurer, superintendent of schools, and the Attorney General. The same is true as to the members of the judiciary; and generally in all of the county offices, including justices of the peace and constables.

[Emphasis supplied].

    The idea that an “appointment” to an “elective” office renders such office “appointive” is ludicrous. In Hancock v. Board of Public Instruction of Charlotte County, 158 So. 2d 519, 522 (Fla. 1963), the Supreme Court of Florida referred to the “mythical appointive office of superintendent.” Likewise, in the instant case, the petitioners refer to the “mythical appointive Office of Justice of the Supreme Court of West Virginia.” Under our Constitution, the “office” is elective, not appointive.
    “[T]he question of whether an office is elective or appointive,” the court held in Helmer v. Briody, 759 F. Supp. 170, 176 (S.D. N.Y. 1991), “must depend on the office itself, not the individual occupying that office.” Merely because an individual acquires an office ordinarily filled by election does not render “appointive” such “elective office.” “The critical question,” the Supreme Court of Utah held in Matheson v. Ferry, 657 P.2d 240, 246 (Utah 1982), “is whether the basic nature of the office is elective or appointive. . . . A judge does not serve two different types of terms. He is appointed, in effect, to qualify as a candidate for election.”). Although relegated to a footnote in the petition, the Supreme Court of Alabama addressed this issue, under an identical exception, as follows:

        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 . . . .

Opinion of the Justices, supra at 40. [Emphasis supplied]. Likewise, the Supreme Court of California focused exclusively upon the “office” and not the manner of selection of the individual filling a vacancy in such office:

        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 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.

Carter v. Commission on Qualification of Judicial Appointments, supra at 186, 93 P.2d at 144.     Ultimately, this Court can ignore every precedent in support of the respondent's appointment of Speaker Kiss. Any ruling by this Court, however, contrary to the only two courts in history to have considered identical constitutional exceptions to the prohibition against the appointment of state legislators to elective judicial office can only be perceived as extralegal. This Court will look in vain for a single authority either within or without the petition in support of the proposition that appointment to a vacancy in an elective office renders such office “appointive” rather than “elective.” The West Virginia Constitution specifically provides that the Office of Justice of the Supreme Court of Appeals of West Virginia is an “elective office.” It cannot, without considerable violence to its plain language, be tortured into providing otherwise.

                                                    //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

Thomas A. Heywood, Esq.
               Bowles Rice McDavid Graff & Love
P.O. Box 1386
                            Charleston, WV 25325-1386

//s// Ancil G. Ramey

Footnote: 1     ¹Perhaps it is only coincidental that of the fifteen individual petitioners, nine are attorneys whose firms were appointed on February 11, 1999, by the Honorable Fred Risovich, Judge of the Circuit Court of Brooke County, as “Class Counsel for the plaintiffs” in Margaret L. Burch, et al. v. American Home Products Corporation, et al., Brooke Co. Civil Action No. 97-C-204 (1-11), involving claims of “approximately 40,000 people exposed to three once-popular diet drugs.” Order at 1, 48. It is the respondent's understanding that this so-called “fen-phen” litigation is still pending, and ultimately may be subject to appellate review by the Supreme Court of Appeals of West Virginia.

Footnote: 2     ²It is important to note the misconception regarding the alleged ineligibility of Speaker Kiss because he “voted” for a judicial pay raise. The constitutional prohibition against the appointment of legislators to public offices applies to all legislators who were serving when a pay raise is enacted, even to legislators who vigorously opposed and voted against such pay raise.