George E. Carenbauer, Esquire
James M. Sprouse, Esquire
Charleston, West Virginia Union, West Virginia
Attorney for Petitioner, Pro Se Rebecca A. Baitty, Esquire
Attorneys for Respondent McGraw
Darrell V. McGraw, Jr.
Robert D. Williams
Assistant Attorney General
Charleston, West Virginia
Attorney for Respondent Hechler,
Secretary of State of West Virginia
Rudolph L. diTrapano
Charleston, West Virginia
ACTING CHIEF JUSTICE SCOTT delivered the Opinion of the Court.
CHIEF JUSTICE MAYNARD, JUSTICE DAVIS, and JUSTICE McGRAW, deeming
themselves disqualified, did not participate in the decision in this case.
JUDGE FRANK E. JOLLIFFE, JUDGE FRED L. FOX, II, and JUDGE THOMAS H.
KEADLE sitting by temporary assignment.
JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.
JUDGE JOLLIFFE concurs and reserves the right to file a concurring Opinion.
1. A writ of mandamus will not issue unless three elements coexist--(1) a
clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate
remedy. Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d
2. The public policies in protecting fundamental rights, preserving electoral
integrity, and promoting both political and judicial economy have prompted a practical
approach in assessing whether an election case is appropriate for mandamus relief. . . . It is
only when a writ of mandamus has been invoked to preserve the right to vote or to run for
political office that this Court has eased the requirements for strict compliance for the writ's
preconditions, especially those relating to the availability of another remedy. Syl. Pt. 3, in
part, State ex rel. Sowards v. County Comm'n, 196 W.Va. 739, 474 S.E.2d 919 (1996).
3. Because there is an important public policy interest in determining the qualifications of candidates in advance of an election, this Court does not hold an election mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus case. Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979).
4. 'The eligibility of a candidate for an elective office may be determined in
a proceeding in mandamus and, upon a determination therein that a candidate is ineligible
to be elected to or to hold the office for which he seeks nomination or election, a writ of
mandamus will issue directing the board of ballot commissioners to strike or omit such
candidate's name from the primary or general election ballot.' Syl. pt. 1, State ex rel.
Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964). Syl. Pt. 1, State ex rel.
Haught v. Donnahoe, 174 W.Va. 27, 321 S.E.2d 677 (1984).
5. The West Virginia Constitution confers a fundamental right to run for
public office, which the State cannot restrict unless the restriction is necessary to accomplish
a legitimate and compelling governmental interest. Syl. Pt. 2, State ex rel. Billings v. City
of Point Pleasant, 194 W.Va. 301, 460 S.E.2d 436 (1995).
6. The West Virginia Constitution confers on the West Virginia Supreme
Court of Appeals, both expressly and by necessary implication, the power to protect the
integrity of the judicial branch of government and the duty to regulate the political activities
of all judicial officers.
7. No person who is serving a term as a justice of the Supreme Court of
Appeals of this state shall be eligible to file as a candidate to seek nomination or election to
another term on said Court which begins prior to the expiration of the term then being served.
Relator George E. CarenbauerSee footnote 1 1 seeks a writ of mandamus to have Respondent, the Honorable Warren R. McGraw, declared ineligible as a candidate for election to a separate twelve-year term on this Court.See footnote 2 2 As grounds for the extraordinary relief sought, Relator asserts that Justice McGraw fails to qualify as an eligible candidate for office due to his status as an incumbent currently fulfilling an unexpired term to which he was elected. Additionally, Relator contends that Justice McGraw's actions first, as the author of a recent opinionSee footnote 3 3 declaring Speaker of the House of Delegates Robert S. Kiss ineligible for appointment to this Court under the emoluments clause of this state's constitution, and now, in seeking the position which Speaker Kiss was denied,See footnote 4 4 have both undermined the integrity of this judicial institution and cast upon it a pernicious cloak of aspersion. Following an exhaustive examination of constitutional principles combined with an equally thorough review of judicial decisions concerning the penumbral issues presented by the petition, we conclude that while the constitution does not expressly proscribe an incumbent justice whose term has yet to be fulfilled from seeking election to a separate seat on this Court, the intent underlying the enactment of article VIII of our state constitution, which sets forth the requirements for selection to this Court, as well as the entire structure of the judicial branch of government; the social compact of this state's citizenry as expressed through the adoption of both the Constitution and the Judicial Reorganization Act of 1974; and the state's compelling interest in maintaining the integrity of the judiciary, as well as its equally- compelling interest in securing an independent judiciary removed from the entanglements of politics, all combine to require this Court to conclude that Justice McGraw cannot seek to enhance his term-length through these means. Accordingly, we grant the writ of mandamus as moulded.See footnote 5 5
While we countenanced easing the standard for issuing extraordinary relief in
the context of preserving the right to run for political office in Sowards, the issues raised
in this case, although aimed at prohibiting a candidacy, suggest similar exigencies which
require immediate, rather than deferred, resolution. Moreover, as we explained in Bromelow,
[t]he principal purpose of the liberalized election mandamus proceeding is to provide an
expeditious pre-election hearing to resolve eligibility of candidates, so that voters can
exercise their fundamental rights as to all eligible candidates. Id. at 536, 258 S.E.2d at 122;
see also State ex rel. Maloney v. McCartney, 159 W.Va. 513, 527, 223 S.E.2d 607, 616
(1976) (stating that intelligent and meaningful exercise of the franchise requires some
method of averting a void or voidable election and recognizing that some form of
proceeding must be available by which interested parties may challenge in advance of a
primary or general election the eligibility of questionable candidates in order to assure that
elections will not become a mockery. . . .). That mandamus is the agreed-upon procedural
mechanism for resolving questions of a candidate's eligibility is well-established:
The eligibility of a candidate for an elective office may be determined in a proceeding in mandamus and, upon a determination therein that a candidate is ineligible to be elected to or to hold the office for which he seeks nomination or election, a writ of mandamus will issue directing the board of ballot commissioners to strike or omit such candidate's name from the primary or general election ballot. Syl. pt. 1, State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964).
Syl. Pt. 1, State ex rel. Haught v. Donnahoe, 174 W.Va. 27, 321 S.E.2d 677 (1984). Against
these principles, we examine Relator's request for a writ of mandamus.
We are not unmindful of the fact that a differing viewpoint exists with regard
to the authority of this Court to prohibit Justice McGraw from seeking another term on this
judicial body based on the fact that our state constitution does not expressly proscribe such
a candidacy. In anticipation of such reproach, we respond that this Court is obligated by its
role as the arbiter of constitutional issues, as well as its duty to uphold the confidence reposed
in the judiciary by this state's citizenry, to resolve the issue of Justice McGraw's candidacy.
Concomitant to the sustained confidence of the public in the judiciary is the correlative
responsibility that integrity must be the cynosure of all judicial endeavors, both actual and
perceived. So crucial is the state's interest in maintaining the integrity of its judicial system
that regulations or restrictions which temporally affect an officeholder's access to the ballot
have been found to withstand constitutional challenge on this ground alone. Clements v.
Fashing, 457 U.S. 957 (1982). This recognized state interest in upholding the integrity of the
judicial system, and the inherent and express power of this Court to control the political
activities of all judicial officers, thus serve as both the predicate core of our decision and as
the authority for the ruling itself.
While some advocates might contend, at first glance, that the constitutional language does
in fact authorize the candidacies of incumbent judges, upon scrutiny it becomes clear that this
proviso was not adopted with the concerns in mind presented by Justice McGraw's filing.
It does not pertain to the question of his right to run for this particular judicial office as a
term-enhancement maneuver.See footnote 10
The language of article VIII, section seven, which permits a justice to become
a candidate for judicial office without vacating his/her judicial seat is aimed at two
interrelated concerns: preserving the separation of powers amongst the three branches of
government and preventing judicial entanglements with politics. The insertion of this
constitutional language through the Judicial Reorganization Amendment of 1974 is directed
at bar[ring] [judges] from continuing in office after they become candidates for any
nonjudicial public offices. Robert M. Bastress, The West Virginia Constitution at p.213
(1995). These provisions were designed to prevent both obstructive conflicts and judicial
entanglements with politics. Id. The Montana Supreme Court, in discussing the purpose of
its constitutional language on this subject,See footnote 11
stated: The constitutional prohibition against
judges seeking nonjudicial offices while still holding judicial office is but part of a general
constitutional scheme declaring directly or indirectly the rights of office holders in all
branches of government to seek other office while still holding office. Committee for an
Effective Judiciary v. State, 679 P.2d 1223, 1228 (Mont. 1984). In upholding the
constitutional language that permits a judge not to forfeit office if he/she files for a judicial
position, the Montana Supreme Court opined:
[T]he [Montana constitutional] delegates perceived a public benefit in opening up the judicial election process to judges who desired to move from lower courts to the district court and from district court to the supreme court, or from a justice on the supreme court to a chief justice on the supreme court. . . . To say that a judge forfeits his office if he files for a non-judicial office is but another way of saying that a sitting judge can file for other judicial office without forfeiting his office.
Id. at 1228-29 (emphasis supplied).
Undergirding the constitutional prohibition against seeking nonjudicial elective
office is the correlative objective of both removing and insulating judges from the political
realm. While the reasons for separating the judiciary from politics are many and varied, there
can be no question that the goal of removing politics and its attendant imbroglios from the
judicial process is necessary to the proper functioning of our judicial system. See, e.g.,
Philyaw v. Gatson, 195 W.Va. 474, 478, 466 S.E.2d 133, 137 (1995) (discussing
consequences of judge defeated in bid for nonjudicial office returning to bench post-
election); J. Clark Kelso, A Report on the Independence of the Judiciary, 66 S.Cal.L.Rev.
2209, 2210 (1993) (In order to perform its dispute-resolving and law-declaring functions,
the judiciary must also be largely independent of, and insulated from, the people and the
political process. It is only through this independence--an independence that promotes
impartial decision making--that judicial action will earn the respect of the people.)
(emphasis supplied). It is not surprising then that the Code of Judicial Conduct includes a
complementary restriction on inappropriate political activity which requires judges to
resign from judicial office upon becoming a candidate for a non-judicial office. W.Va.
Code of Judicial Conduct, Canon 5A(2). In discussing the Washington corollary to Canon
5,See footnote 12
often referred to as a resign-to-run requirement, the Washington Supreme Court stated
that this canon seeks to prevent embroiling the court in political controversy and allowing
a judge to trade on the prestige and dignity of the judicial office. In re Disciplinary
Proceeding Against Niemi, 820 P.2d 41, 46 (Wash. 1991) (citing J. Shaman, S. Lubet & J.
Alfini, Judicial Conduct and Ethics § 11.19 at 357 (1990) and E. Thode, Reporter's Notes
to Code of Judicial Conduct 97 (1973)); see also Morial v. Judiciary Comm'n, 565 F.2d 295,
305 (5th Cir. 1977), cert. denied, 435 U.S. 1013 (1978) (articulating rationale for requiring
resignation of judges seeking election to nonjudicial office in terms of protect[ing] the
state's interest in judicial integrity without sacrificing the equally important interests in
robust campaigns for elective office in the executive or legislative branches of government).
Having thus concluded that the language of article VIII, section seven is
directed at forcing judges to vacate their office if they intend to run for nonjudicial office and
to similarly uphold the separation of powers by proscribing judicial officers from becoming
candidates for either of the two remaining branches of government while still holding office,
we next address whether the language at issue authorizes an incumbent justice to seek a
separate seat on the court before his term has expired. The answer to this query cannot be
reached by simply concluding that, because the office sought by Justice McGraw is a judicial
office, he is permitted by the terms of article VIII, section seven to seek judicial office while
still holding and fulfilling an unexpired judicial seat. While the dissent employs contorted
logic in rewriting the language of article VIII, section seven to state in positive terms that a
sitting justice may 'become a candidate for any elective . . . judicial office,'See footnote 13
reformulation is shallow and jurisprudentially indefensible. It neither withstands
constitutional analysis nor does it answer the query before the Court. The words of Justice
Story still ring true: How easily men satisfy themselves that the Constitution is exactly what
they wish it to be. Alpheus T. Mason & Donald G. Stephenson, Jr., American
Constitutional Law 38 (10th ed. 1993). If the course of action undertaken by Justice
McGraw was not contemplated by either the framers of our state constitution or the drafters
of the Judicial Reorganization Act of 1974, and we seriously doubt that it was,See footnote 14
cannot summarily conclude that such action is sanctioned under this constitutional provision.
It is more reasonable to find that this behavior is simply outside the express terms of our
social compact. As we recognized in Randolph County Board of Education v. Adams, 196
W.Va. 9, 467 S.E.2d 150 (1995), [w]hen the Constitution is silent on a particular issue, the
solution cannot be found in a methodology that requires us to assume or divine the framers'
intent on an issue which most likely was never considered. Id. at 22, 467 S.E.2d at 163.
Finding no explicit constitutional authority for Justice McGraw's candidacySee footnote 15
and rejecting summarily the dissenter's contention that the absence of express constitutional
prohibition conversely warrants approval of such candidacy, we must determine whether any
statutes bear on the issue of Justice McGraw's eligibility to be a candidate for another seat
on this Court. The only statutory provision which addresses the critical element of eligibility
for office is West Virginia Code § 3-5-7. That statute, which applies to all candidacies,
requires the filing of a certificate of candidacy announcement by [a]ny person who is
eligible and seeks to hold an office or political party position to be filled by election in any
primary or general election. Id. (emphasis supplied). As part of the candidacy
announcement, the individual is required to make a sworn statement that he/she is a
candidate for the office in good faith. W.Va. Code § 3-5-7(b)(8). Other than emphasizing
the obvious--that an individual seeking political office must be eligible to hold the office
he/she seeks--the language of this general election statute does not assist us with our present
continue, all the judicial officers needed therefor . . . . It was
designed that the general and * * * the exclusive mode of filling
these offices * * * should be by election by the people, and not
426 N.E.2d at 747 (quoting People ex rel. Jackson v. Potter, 47 N.Y. 375, 379-80 (N.Y. Sup. Ct. 1872)). In light of the historical underpinnings of the judiciary article, the court in Hurowitz concluded that
article VI was designed to assure a structured judiciary elected on a regular basis without fragmentation of terms. To accept this candidate's interpretation of section 20 would defeat the over-all purposes of article VI. Such activities could fragment terms and create interim vacancies on a regular basis, thereby infringing upon the people's right to a complete and continuous judicial system.
426 N.E.2d at 748 (quoting Potter, 47 N.Y. at 379).
Besides its concerns over fragmentation and the consequent disruption to the
judicial process, the court in Hurowitz considered the logical consequences of the judge's
candidacy on the selection of judges:
[T]he nature of the Judge's candidacy could have the effect of aborting the election process. By seeking another position on the same court where he currently sits, he not only allows himself multiple chances to be re-elected, but also assures that when he is elected to the other position on the same court, a vacancy will occur. Such a vacancy creates an additional occasion for political involvement. Moreover, should this type of conduct become the norm, it would be possible that all positions would be appointive upon the resignations and shiftings of the other Judges; only at the next general election would the people be given a chance to vote, the effect of which may well be to merely approve the appointment. Although we do not find that this is currently the practice, the likelihood of such a result portends abuse of the elective system. Even viewed in its most favorable light, this conduct has the potential for mischief which this court cannot condone.
426 N.E.2d at 748. Long before the Hurowitz decision, the New York Supreme Court was forced to consider, in its Potter decision of 1872, the effects necessarily wreaked upon the electoral process when judicial appointments are required due to politically-motivated vacancies.See footnote 16 16
If a vacancy in a term . . . may defeat the electors of their privilege to choose an incumbent . . . , so a resignation . . . during the running of the term will have the same effect. More than that too, the appointee of the Governor, . . . may . . . resign his office, and then a vacancy again occurs, to be again filled by appointment for a like fractional term. . . . And this succession of appointment and resignation, and resignation and appointment, may be kept up as long as the judicial and executive servants of the people may be willing to act in it. Thus would the electors be permanently defeated in the exercise of their constitutional privilege of choice. It needs not to name all the evils which would thus result. It is sufficient to say, that it would work an entire perversion of the spirit and general intent of the judiciary article[.]
Potter, 1872 WL 9733 at p.3 (emphasis supplied).
The potential for public backlash to this type of candidacy was fully
appreciated by the court in Hurowitz: Not without significance in this connection is the risk
of the appearance of impropriety that may be perceived by the public in a Judge's injection
of himself into the political process for the sole purpose of extending his tenure. 426
N.E.2d at 748 (emphasis supplied). Such injection into the political process, according to the
court in Hurowitz, was contrary to the intent of the constitutional framers to minimize the
involvement of the judiciary in the political process and the possible influences such
exposure might bring with it. Id. With this sentiment, we heartily agree.
We do not take issue with Justice McGraw's assertion that this Court cannot
impose qualifications for the office of supreme court justice in addition to those enumerated
in article VIII, section 7. See supra note 18. It is axiomatic that the qualifications necessary
to seek office as a supreme court justice are those which are prescribed by the constitution.
See W.Va. Const. art. VIII, § 7. While understandable in terms of advocacy, Justice
McGraw's attempt to dress his incumbency in qualification clothing does not withstand
scrutiny. What Relator seeks is not the insertion of an additional qualification for office, but
instead a limitation on when a sitting supreme court justice is eligible to seek reelection to
this body. Far from being a distinction of semantical significance only, the foundation for
imposing a restriction on eligibility for seeking judicial office is well entrenched in this
In State ex rel. Haught v. Donnahoe, 174 W.Va. 27, 321 S.E.2d 677 (1984),
this Court was presented with the issue of a judicial candidate's eligibility for circuit court
through a petition seeking a writ of mandamus. At issue was an interpretation of the
language of article VIII, section 7, which requires that to be elected to circuit court judge, an
individual must ha[ve] been admitted to practice law for at least five years prior to his
election. W.Va. Const. art. VIII, § 7. The specific issue presented was whether the five-
year law practice requirement entailed that such practice had to have been performed within
the confines of this state. The judicial candidate whose candidacy was being challenged had
practiced law only in the State of California. 174 W.Va. at 29-30, 321 S.E.2d at 679-80.
After first determining that an ambiguity was presented by the language at issue, this Court
proceeded to analyze the reasons for requiring judicial candidates to have practiced before
the respective bar of the state in which they sought office. [R]ecogniz[ing] that the
regulation of the practice of law and the judiciary is traditionally and inherently
intraterritorial, we concluded that there were valid reasons for requiring that the
constitutionally-imposed period of law practice had to have been performed in this state. Id.
at 32-34, 321 S.E.2d at 682-84.
After interpreting the law-practice requirement as encompassing a non-existent,
but necessary element of in-state practice, the Court proceeded to consider whether its
interpretation could withstand equal protection analysis. Recognizing that this court-created
restriction upon eligibility could only satisfy the constitutional protections inherent to the
fundamental right to become a candidate for public office if it served a compelling state
interest, we reasoned:
As previously noted, similar experient[i]al requirements for judges are common. The purpose for such requirements is unquestionably clear. They are intended to insure not only that judges are competent in the law, but that they are reasonably familiar with the law of the jurisdiction to which they are elected. While it may be axiomatic that judges are elected to interpret and uphold the law, due process demands a high level of jurisdictional competence and integrity in that endeavor. Requirements or restrictions affecting eligibility for judicial office that reasonably strive to meet such valid public purposes do not impose impermissible barriers to such offices. Furthermore, a state's particular interest in maintaining the integrity of its judicial system can support restrictions which could not survive constitutional scrutiny if applied to other types of offices. Clements v. Fashing, 457 U.S. 957, 968, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508, 519 (1982).
Therefore, we hold that the requirement contained in West Virginia Constitution art. VIII, § 7, that candidates for the office of circuit judge must have been admitted to the practice of law in the State for five years prior to their election advances the State's compelling interest in securing and maintaining a judiciary well qualified in the law of the jurisdiction.
174 W.Va. at 34, 321 S.E.2d at 684.
In State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741
(1964), the case in which we first determined that issues of a candidate's eligibility could be
resolved through mandamus, this Court was asked to resolve whether a non-lawyer was
eligible for the office of prosecuting attorney in the absence of a specific constitutional or
statutory provision requiring county prosecutors to be lawyers licensed to practice in this
state. Before concluding that the non-attorney was not eligible for election to the position
of county prosecutor, this Court considered both the law of other states and the strong policy
grounds in support of such a ruling. Id. at 543-51, 135 S.E.2d at 747-51. Of critical import
to the Court's decision in Maxwell was the inherent power of the judiciary to regulate the
practice of law. See id. at 550, 135 S.E.2d at 750 (citing In re Eary, 134 W.Va. 204, 58
S.E.2d 647 (1950)) (holding that Supreme Court has inherent power to grant or refuse the
right to practice law).See footnote 19
Just as this the Court has the inherent power to regulate the practice of law so
too does it have the inherent power to regulate the judiciary. See W.Va. Const. art. VIII, § 8
(setting forth inherent rule-making power of supreme court of appeals). In examining
whether a judicial employee was subject to the resign-to-run requirement of article VIII,
section 7 of our state constitution, this Court began its analysis in Philyaw v. Gatson, 195
W.Va. 474, 466 S.E.2d 133 (1995), with an examination of the constitutional framework of
West Virginia Constitution article VIII is devoted entirely to the powers and function of the judicial branch of government. Since the powers and functions, and indeed the entire structure, of the judicial branch are unique and unlike any other department of government, the rules regulating those powers and functions must, of necessity, be adapted to recognize those differences. The very soul of the judicial branch of government is that on a systemic basis, the judiciary must maintain both actual and perceived impartiality:
It is the design of the law to maintain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the community.... After securing wisdom and impartiality in their judgments, it is of great importance that the courts should be free from reproach or the suspicion of unfairness.
See Forest Coal Co. v. Doolittle, 54 W.Va. 210, 227, 46 S.E.
238, 245 (1903) (emphasis omitted) (quoting with approval
Oakley v. Aspinwall, 3 N.Y. 547, 552 (1850).
Gatson, 195 W.Va. at 477, 466 S.E.2d at 136 (emphasis supplied). Continuing in this vein, we observed:
Justice Frankfurter, dissenting in Baker v. Carr, may have said it best, "[t]he Court's authority--possessed of neither the purse nor the sword--ultimately rests on sustained public confidence in its moral sanction." Baker v. Carr, 369 U.S. 186, 267, 82 S.Ct. 691, 737-38, 7 L.Ed.2d 663 (1962). This moral sanction, which is the underpinning of the public confidence in our judicial system is at the heart of West Virginia Constitution article VIII, section 7 . . . .
195 W.Va. at 477, 466 S.E.2d at 136 (emphasis supplied).
As an aid to resolving the issue of whether judicial employees are subject to the constraints of the resign-to-run provision of article VIII, section 7 in Gatson, this Court examined how the duties of judicial employees are necessarily intertwined with the judicial objectives of assuring independence, impartiality, and public confidence in the court system. 195 W.Va. at 478, 466 S.E.2d at 137. Discussing the inevitable encroachment on the integrity of the judicial system that would result from permitting judicial employees to continue in office while seeking non-judicial office, we identified as legitimate public objectives: [e]nsuring the impartiality of court employees, protecting the integrity and appearance of impartiality of court offices, and preserving the division of powers set out in West Virginia Constitution article V, section 1. Id. at 478, 466 S.E.2d at 137.
Continuing with the issue of whether prohibition of an incumbent justice's attempt to seek election mid-term amounts to the imposition of an additional qualification, we find useful the discussion in Gatson concerning whether the resign-to-run requirement amounted to an unconstitutional qualification for candidates seeking office. We explained in Gatson why Marra, a decision in which this Court found that a municipal charter provision had wrongly imposed an additional qualification of one year of residency in contravention of the constitutionally-provided qualifications for non-judicial office,See footnote 20 20 was not determinative of the issue before the Court:
We believe that the circuit court's reliance on Marra is misplaced since the resign-to-run rule does not impose an additional qualification on a candidate. The employer did not alter the qualifications necessary to run for office, but rather established requirements for retaining employment. The claimant's employment was conditioned upon a reasonable restriction, which because of the unique nature of the employment would not be imposed on employees in the private sector. This extension of the resign-to-run requirement to judicial employees is designed as a prophylactic measure to protect the entire judicial branch. This rule is a legitimate and independent condition of claimant's continued employment with the Judiciary. We hold the restriction on judicial employees requiring their resignation upon becoming a candidate for a non-judicial office is reasonable.
195 W.Va. at 478-79, 466 S.E.2d at 137-38 (emphasis in original omitted and emphasis supplied).
While Justice McGraw vociferously contends that a prohibition of his
candidacy necessarily conflicts with and violates either his right to be a candidate or the
electorate's right to vote for the candidate of their choice, what he fails to acknowledge is
that [n]either the right to candidacy nor franchise, however, are immune from regulation.
Sowards, 196 W.Va. at 747, 474 S.E.2d at 927. The regulation of the electoral process has
its genesis in the irrefutable need to impose order, rather than chaos in the democratic
process. Storer v. Brown, 415 U.S. 724, 730 (1974). Arising from this state interest in
preserving the integrity and reliability of . . . the electoral process is the corresponding
authority to prescribe reasonable rules for the conduct of elections, reasonable procedures
by which candidates may qualify to run for office, and the manner in which they will be
elected. Sowards, 196 W.Va. at 747, 474 S.E.2d at 927.
In upholding a Texas constitutional provision which prohibited judges from
eligibility for legislative office during the term for which he is elected or appointedSee footnote 22
equal protection grounds, the United States Supreme Court relied on the state's interest in
maintaining the integrity of the judicial system. Clements, 457 U.S. at 960. The judge
affected by this provision was a justice of the peace, who was in the midst of serving a four-year term. Analyzing the burdenSee footnote 23
placed on the judge who sought to hold legislative office,
the Court reasoned:
Section 19 merely prohibits officeholders from cutting short their current term of office in order to serve in the legislature. In Texas, the term of office for a Justice of the Peace is four years, while legislative elections are held every two years. Therefore, § 19 simply requires [Judge] Baca to complete his 4-year term as Justice of the Peace before he may be eligible for the legislature. At most, therefore, Baca must wait two years--one election cycle--before he may run as a candidate for the legislature.
. . . .
In establishing a maximum waiting period of two years for candidacy by a Justice of the Peace for the legislature, § 19 places a de minimus burden on the political aspirations of a current officeholder. Section 19 discriminates neither on the basis of political affiliation nor on any factor not related to a candidate's qualifications to hold political office. . . . In this case, § 19 burdens only a candidate who has successfully been elected to one office, but whose political ambitions lead him to pursue a seat in the Texas Legislature.
457 U.S. at 966-67 (citation omitted and footnote omitted). The Court emphatically stated: A 'waiting period' is hardly a significant barrier to candidacy. Id. at 967.See footnote 24 24
The Court in Clements had no difficulty in identifying the rational predicate
for section 19:
That provision furthers Texas' interests in maintaining the integrity of the State's Justices of the Peace. By prohibiting candidacy for the legislature until completion of one's term of office, § 19 seeks to ensure that a Justice of the Peace will neither abuse his position nor neglect his duties because of his aspirations for higher office. The demands of a political campaign may tempt a Justice of the Peace to devote less than his full time and energies to the responsibilities of his office. A campaigning Justice of the Peace might be tempted to render decisions and take actions that might serve more to further his political ambitions than the responsibilities of his office. The State's interests are especially important with regard to judicial officers. It is a serious accusation to charge a judicial officer with making a politically motivated decision. By contrast, it is to be expected that a legislator will vote with due regard to the views of his constituents.
Texas has a legitimate interest in discouraging its Justices of the Peace from vacating their current terms of office. By requiring Justices of the Peace to complete their current terms of office, the State has eliminated one incentive to vacate one's office prior to the expiration of the term. The State may act to avoid the difficulties that accompany interim elections and appointments.
457 U.S. at 968 (footnote omitted and emphasis supplied).See footnote 25 25 As articulated by our nation's highest Court, the burdens placed upon the judiciary which result from political activities necessitated by the election and reelection process serve to undergird the necessity for our ruling that campaigns by judicial officers be kept to a minimum.
Counsel for Justice McGraw suggests repeatedly in his brief that if this Court
rules in any fashion which defeats his candidacy, such ruling can be motivated only by
political, non-legal bias of the members of this Court. Such assertions, besides being
inaccurate, are both insulting and grossly unprofessional. The West Virginia Constitution
confers on the West Virginia Supreme Court of Appeals, both expressly and by necessary
implication, the power to protect the integrity of the judicial branch of government and the
duty to regulate the political activities of all judicial officers.
The need to preserve judicial integrity is more than just a matter of judges satisfying
themselves that the environment in which they work is sufficiently free of interference to
enable them to administer the law honorably and efficiently. Litigants and our citizenry in
general must also be satisfied. Hobson v. Hansen, 265 F.Supp. 902, 931 (D. D.C. 1967)
(Wright, J., dissenting). When an individual seeks so obviously to advance his personal
interests through such an unorthodox and previously uncharted method of term-enhancement,
it cannot be gainsaid that public sentiment would quickly conclude that this action is not
deserving of a justice sitting on this court of last resort.
The state's interests in assuring the independence and impartiality of the
judiciary and minimizing the involvement of the judiciary in the political process go hand
in hand. It is axiomatic that a judiciary can properly function only when it acts independent
of all extraneous influences or interests, whether political or otherwise. Critical to
understanding the imperative that the judiciary be separated from politics, other than as may
be required for the purpose of elections, is an appreciation of the dangers presented by
commingling politics with the judiciary. The Hurowitz court instinctively recognized the
inimical effects that unnecessary exposure to the political process would have on the
judiciary. See 426 N.E.2d at 748. Judges have to guard against the public perception that
involvement in the political process subjects them to the influences of those who help secure
their elections. Here, as in other instances of judicial conduct, it is not only the accuracy of
an allegation of impropriety that warrants concern, but, significantly, it is even the mere
appearance of impropriety that has the capability of signaling disastrous results for the
judiciary as an institution. As recognized by the Supreme Court of Washington in Niemi,
[p]ublic confidence is undermined when the 'citizenry conclude[s], even erroneously, that
cases [are] decided on the basis of favoritism or prejudice rather than according to law and
fact.' 820 P.2d at 844 (quoting J. Shaman et al., Judicial Conduct and Ethics § 10.03 at 275).
Consequently, the judicial system must be ever vigilant with regard to the public's perception
of the improper infusion of politics within its courts.
Perhaps the most obvious and compelling reason why Justice McGraw's candidacy should not be permitted arises from the effects that a mid-term candidacy has on the court system as a whole. As fully-explored by the New York courts in both Hurowitz and Potter, the electoral method of judge selection is abrogated by requiring, perhaps ad infinitum, that judges be placed on a court via the appointment process when contrived judicial vacancies occur. See Hurowitz, 426 N.E.2d at 748, Potter, 1872 WL 9733 at p.3. The evils that could be attempted through such forced judicial vacancies are easily perceived. Notwithstanding the patent circumvention of the electoral process, the disruption to the operations of this Court would be catastrophic were we to permit Justice McGraw, and consequently every present and future sitting justice desirous of following suit, to jump into the election fray, irrespective of when the term being filled by that individual expires.See footnote 26 26
Finally, we would be less than forthright if we did not acknowledge the effects
this candidacy has had on the ability of this Court to conduct its constitutionally-required
duties with the element of collegiality necessary to properly effect judicial decision-making.
While the process of judicial decisions implies disagreement, it also implies that the parties
to such decisions must approach dispassionately the business of dispute resolution without
personal animosity and with a healthy respect for honest differences of opinion.
Unfortunately, this candidacy has brought with it an unhealthy pall of partisanship.See footnote 27
author of this opinion has experienced first-hand that the loss of collegiality can only serve
to promote disharmony and impede rational discourse.
We do not conclude that Justice McGraw is ineligible to be a candidate based
on lack of qualifications. See W.Va. Const. art. VIII, § 7. Instead, his ineligibility arises
from the State's compelling and permissible interest in regulating the political activities of
its judicial officeholders. See Clements, 457 U.S. at 968; Donnahoe, 174 W.Va. at 33-34,
321 S.E.2d at 684; see also Joyner v. Mofford, 706 F.2d 1523, 1531 (9th Cir.), cert. denied,
464 U.S. 1002 ( 1983) (rejecting argument that fourth qualification for office was being
imposed by Arizona resign-to- run provision because it does not prevent an elected state
officeholder from running for federal office and justifying this indirect burden on potential
candidates for Congress as permissible regulation of state officeholders); Signorelli v.
Evans, 637 F.2d 853, 859 (2d Cir. 1980) (upholding law requiring state judges to resign from
judiciary before seeking federal Congressional office as permissible regulation of judiciary
and suggesting that unconstitutional additional qualification is obviated where regulation is
designed to deal with a subject within traditional state authority).See footnote 28
Given our explicit and
implicit regulatory powers over the judiciary, we are required to resolve this unprecedented,
and clearly unanticipated by either the constitutional framers or our legislature,See footnote 29
issue of an
incumbent justice's authority to seek another seat on the same judicial body while currently
serving an unexpired term. Because of the constitutional and statutory void, and because of
the pressing need to resolve this issue, this Court was forced to formulate a rule that
addresses the propriety of an action which never had been attempted during the history of this
We wish to emphasize that our decision does not stand in conflict with the
critical postulate that sovereignty is vested in the people, and that sovereignty confers on
the people the right to choose freely their . . . [elected officials] . . . . U.S. Term Limits, 514
U.S. at 795. The fundamental principles of representative democracy have not been altered
by this decision. No impermissible barrier to candidacy has been erected by this decision.
Justice McGraw simply has to wait until the expiration of his current term and then he may
properly avail himself of the electoral process with no consequent harm to this state's judicial
system.See footnote 30
To conclude otherwise might sacrifice the political stability of the system of the
State, with profound consequences for the entire citizenry, merely in the interest of [a]
particular candidate and . . . [his] supporters having instantaneous access to the ballot.
Storer, 415 U.S. at 736.
We come to the end of this case with a profound respect for our
constitutionally-proscribed responsibilities and an equally healthy regard for our historical,
institutionally-mandated obligations to protect the structural integrity of this Court and to
apply the terms of our constitution in a manner which comports with common sense and
which promotes the public weal.
Based on the foregoing, the writ of prohibition is granted as moulded and the
Clerk of the Court is hereby directed to issue forthwith the mandate for this case.
Writ granted as moulded.
nullification of Speaker Kiss' appointment to this body, we do not rely on such grounds to resolve this matter.
consecutive days. Committee for an Effective Judiciary v. State, 679 P.2d 1223, 1224 (Mont. 1984).
Judges shall resign their office when they become
candidates either in a party primary or in a general election for
a nonjudicial office, except that they may continue to hold their
judicial office while being a candidate for election to or serving
as a delegate in a state constitutional convention, if they are
otherwise permitted by law to do so.
In re Disciplinary Proceeding Against Niemi, 820 P.2d 41, 45 (Wash. 1991).
Cir. 1989); accord United Public Workers v. Mitchell, 330 U.S. 75 (1947) (upholding Hatch Act provisions which prohibited civil service employees from seeking election to public office); see also Joyner v. Mofford, 706 F.2d 1523, 1528 (9th Cir. 1983) (observing, in upholding Arizona resign-to-run statute, that burden on candidacy . . . is indirect and attributable to a desire to regulate state officeholders and not to impose additional qualifications to serving in Congress), cert. denied, 464 U.S. 1002 (1983).