Filed: February 29, 1996
Thornton Cooper James K. Brown
South Charleston, West Virginia Jackson & Kelly
Pro Se Charleston, West Virginia
Attorney for Appellee
Paul E. Jordan The West Virginia Water
Senior Assistant Attorney General Development Authority
Joy M. Cavallo
Assistant Attorney General Thomas J. Gillooly
Charleston, West Virginia Charleston, West Virginia
Attorneys for Appellees Governor Attorney for Appellant
Caperton, Treasurer Bailey, and The West Virginia Infrastructure
Secretary of State Hechler and Jobs Development Council
JUSTICE CLECKLEY delivered the Opinion of the Court.
1. Generally, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo. The sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law.
2. To preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.
3. The procedures set forth in Section 2 of Article XIV of the West Virginia
Constitution are designed to achieve two goals: (1) to ensure, through the endorsement of a
legislative supermajority and the support of a majority of those voting in a statewide
referendum, that constitutional amendments reflect a true and broad based political
consensus; and (2) to guarantee that such a referendum may be held only after the Legislature
has taken steps to inform the electorate fully and accurately about the proposed amendment.
4. No amendment to the West Virginia Constitution can be effected without:
(1) the duly recorded concurrence of two-thirds of the members in each house; (2) the
submission of the proposed amendment to the people; (3) the amendment's ratification by a
majority of those voting in a statewide referendum; (4) the fulfillment of the legislative duty to inform the people about the proposed amendment through at least substantial compliance
with the directives of Section 2 of Article XIV of the West Virginia Constitution and in a
manner sufficient to permit the voters to make up their minds; and (5) an absence of evidence
that the State's voter education mislead or confused the voters if not in strict compliance with
5. When the State fails to publish the full text of a proposed amendment in a
newspaper in each county but instead publishes a summary of the amendment, the results of
a referendum on the amendment will not be set aside if: (1) the summary fully, fairly, and
accurately describes the amendment; (2) the summary is, in fact, more understandable than
the actual text of the amendment; (3) the summary was adopted by the Legislature; (4) there
was no probative evidence that the summary mislead voters or reasonably could be read to
have had a misleading effect; and (5) there was no probative evidence that publication of the
full text of the amendment would have made any difference in the outcome of the
6. Section 2 of Article XIV of the West Virginia Constitution requires the
Legislature to cause the full text of a proposed amendment to be published in a newspaper
in each of the State's counties having a newspaper and any departures from that requirement
shall be strictly reviewed.
This opinion follows the December 14, 1995, order issued by this Court
affirming the August 30, 1995, order of the Circuit Court of Kanawha County. In its 67-page
order, the circuit court granted a petition for a writ of mandamus filed by the West Virginia
Water Development Authority (Authority),See footnote 1 an appellee herein, demanding that the West
Virginia Infrastructure and Jobs Development Council (Council),See footnote 2 the appellant herein, be
ordered to provide the requisite certification to the Authority and the Treasurer of the State
of West Virginia, the Honorable Larrie Bailey, also an appellee herein, so that the marketing
and sale of certain general obligation bonds may proceed. The Council then brought this
appeal seeking a final judicial determination by this Court.
In that same order, the circuit court also denied a petition for a writ of
mandamus by Thornton Cooper originally filed against the Honorable Gaston Caperton,
Governor of the State of West Virginia; the Honorable Larrie Bailey, Treasurer of the State
of West Virginia; and the Honorable Ken Hechler, Secretary of State of the State of West
Virginia, also appellees herein. Mr. Cooper challenges the constitutionality of the underlying amendment authorizing the issue and sale of the bonds. After carefully reviewing the facts
and legal issues involved in this case, we affirm the circuit court's order.
Initially, Mr. Cooper and the Authority filed independent mandamus actions with this Court on April 7, 1995, and April 13, 1995, respectively. We rejected both petitions without prejudice. Subsequently, both parties filed separate actions in the Circuit Court of Kanawha County. Mr. Cooper intervened in the Authority's suit and, on May 30, 1995, filed a motion to consolidate the two actions. Finding there existed common issues of law and fact between the two cases, the circuit court granted Mr. Cooper's motion.See footnote 3 After the circuit court entered its final order on August 30, 1995, the Council appealed for a determination by this Court. The parties stipulate to many of the facts.
This case involves the "Infrastructure Improvement Amendment"
(Amendment) that was placed on the ballot for voter approval in the general election held on
November 8, 1994. The duly canvassed and certified votes from that election reflect that the Amendment was ratified by the voters by a margin of 191,373 votes favoring the Amendment
to 186,224 votes rejecting the Amendment.
Mr. Cooper, who is a citizen, taxpayer, and lawyer in Kanawha County,
opposed the Amendment.See footnote 4 Following the election, Mr. Cooper learned that the full text of
the Amendment was not published in any newspaper in the State prior to the election as is
required by Section 2 of Article XIV of the West Virginia Constitution.See footnote 5 Instead, the Secretary of State's Office directed one newspaper in each county to publish a legal
advertisement listing the title of the proposed Amendment, the number assigned to the
proposed Amendment, and the legislatively adopted "Summary of Purpose" of the proposed Amendment.See footnote 6 This information was published in 54 of the 55 counties in West Virginia.See footnote 7
The circuit court found that at least as early as 1989 and perhaps as early as
1982 the Secretary of State generally ceased directing that the full text of amendments be
published in newspapers across the State.See footnote 8 Due to the failure to publish the full text of the
Amendment, Mr. Cooper announced that he would challenge the Amendment which created
concern over the marketing and sale of the bonds. Therefore, the Council states it declined
to "certify the amount to be retained for payment of principal and interest on bonds to be
issued pursuant to the Amendment, pending a judicial ruling on the legality and
constitutionality of the Amendment, and of the related legislation." As a result of these
circumstances, the two actions below were filed--one by the Authority seeking certification
from the Council, the other by Mr. Cooper challenging the Amendment.
Mr. Cooper, as an appellee,See footnote 9 cross-assigns error in no fewer than fourteen iterations. However, we find this appeal boils down to one question: Whether the circuit court erred by concluding that the publication of the "Summary of Purpose" of the proposed Amendment rather than the full text of the Amendment was in substantial compliance with the West Virginia Constitution? After careful perscrutation of both the record and the rich variety of challenges marshalled by Mr. Cooper and the Council, we affirm.
Generally, this Court reviews findings of fact for clear error and conclusions of law de novo. However, ostensible "findings of fact," which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo. In note 5 of Appalachian Power Co. v. State Tax Department of West Virginia, ___ W. Va. ___, ___, ___ S.E.2d ___, ___ (No. 22795 12/8/95), we suggested that "mixed questions of law and fact, like pure questions of law, or those involving statutory interpretations, are most often reviewed de novo. Most significantly, the sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law." (Slip op. at 8).
That the original proceeding was based upon petitions for writs of mandamus
does not require us to change our standards of review. In our recent decision of Staten v.
Dean, ___ W. Va. ___, 464 S.E.2d 576 (1995), we settled any doubt as to the standard of
review for appeals in mandamus actions in West Virginia. In Syllabus Point 1 of Staten, we
stated: "The standard of appellate review of a circuit court's order granting relief through the
extraordinary writ of mandamus is de novo." Thus, we consider de novo whether the legal
prerequisites for mandamus relief are present. See Azurin v. Von Raab, 803 F.2d 993, 995
(9th Cir. 1986), cert. denied, 483 U.S. 1021, 107 S. Ct. 3264, 97 L.Ed.2d 763 (1987);
Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995). By adopting a de novo
standard of review, we give adherence to the notion that an appellate court's standard of
review should depend upon "the respective institutional advantages of trial and appellate
courts," not upon what standard of review will produce a particular substantive result. Salve
Regina College v. Russell, 499 U.S. 225, 233, 111 S. Ct. 1217, 1222, 113 L.Ed.2d 190, 199
(1991). Moreover, in Randolph County Board of Education v. Adams, ___ W. Va. ___, ___
S.E.2d ___ (No. 22902 12/14/95) (Slip op. at 6), we stated: "Most importantly, the issue
presented in this appeal is a matter of construction of our Constitution and mandates de novo
review by this Court." Our review of the circuit court's order is plenary in all respects because its decision interpreted, on stipulated facts, a provision of our Constitution.
Before turning to the substantive issues, we address briefly two problems raised by Mr. Cooper. First, he complains that the circuit court adopted nearly verbatim the proposed findings of his opponent. Verbatim adoption of proposed findings and conclusions of law prepared by one party is not the preferred practice, see South Side Lumber Co. v. Stone Constr. Co., 151 W. Va. 439, 152 S.E.2d 721 (1967) (findings of fact should represent trial judge's own determination), but it does not constitute reversible error. See, e.g., Freeman v. Poling, 175 W. Va. 814, 824, 338 S.E.2d 415, 425 (1985); E.E.O.C. v. Federal Reserve Bank of Richmond, 698 F.2d 633, 641 (4th Cir. 1983), rev'd on other grounds sub nom. Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S. Ct. 2794, 81 L.Ed.2d 718 (1984). Rather, "even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572, 105 S. Ct. 1504, 1511, 84 L.Ed.2d 518, 527 (1985). See also United States v. Marine Bancorporation, Inc., 418 U.S. 602, 615 n.13, 94 S. Ct. 2856, 2866-67 n.13, 41 L.Ed.2d 978, 992 n.13 (1974). When viewed collectively, the above cases send a clear message: As an appellate court, we concern ourselves not with who prepared the findings for the circuit court, but with whether the findings adopted by the circuit court accurately reflect the existing law and the trial record.
Although Mr. Cooper asserts that he raises factual claims on appeal, virtually
all Mr. Cooper's arguments are essentially challenges to the circuit court's legal findings and
so are subject to our de novo review. See Dunning v. Barlow & Wisler, Inc., 148 W. Va.
206, 211, 133 S.E.2d 784, 788 (1963) (circuit court's conclusions of law are not binding on
this Court). Furthermore, we note that the circuit judge in this case did not announce a
decision prior to the submission of proposed findings of fact and conclusions of law. In this
important respect, the circuit judge followed the recommended procedure in federal cases
involving proposed findings of fact and conclusions of law. See Lilly v. Harris-Teeter
Supermarket, 720 F.2d 326, 332 (4th Cir. 1983), cert. denied, 466 U.S. 951, 104 S. Ct. 2154,
80 L.Ed.2d 539 (1984). Accordingly, we find no irregularity in the procedure followed by
the circuit court.
Second, Mr. Cooper argues that he was precluded from presenting evidence
in support of his petition. We find the claim lacks merit. While few rights are more
fundamental than that of a litigant to present witnesses in support of his or her case, this right
does not require the circuit court to waste its time listening to immaterial or irrelevant
evidence. See W.Va.R.Evid. 401 and 402; Syl. pt. 3, Bennett v. Adkins, 194 W. Va. 372,
460 S.E.2d 507 (1995) (subjective state of mind evidence is "largely immaterial to the mandamus proceeding"). See also Doe v. United States, 666 F.2d 43, 47 (4th Cir. 1981) (a
party "is not constitutionally entitled to present irrelevant evidence"). It is highly
questionable whether the specific evidence proffered by Mr. Cooper would have been of
more than marginal utility and minor probative value.See footnote 10 Even if error exists, we will not
overturn a ruling or decision if we find the error was harmless. See W.Va.R.Evid. 103(a);
Reed v. Wimmer, ___ W. Va. ___, ___, 465 S.E.2d 199, 209 (1995). Sound judicial policy,
however, counsels us against deciding this relatively difficult issue of whether Mr. Cooper's
evidence could overcome a harmless error defense because a clear, principled, alternative
basis exists that disposes of his argument. Thus, we proceed to further dimension.
We have spent a considerable and undue amount of time seeking a clear path
through this morass in a futile attempt to determine what effort was expended by Mr. Cooper to assert a right to an evidentiary hearing. He contends he made a sufficient request for an
evidentiary hearing prior to the circuit court's ruling on the merits. We find that although Mr.
Cooper filed pretrial motions for an evidentiary hearing, he did not meaningfully pursue the
motions at the critical time.
It appears that Mr. Cooper's desire to have an evidentiary hearing first was
discussed at a hearing held on May 10, 1995, before Judge Kaufman. The intended purpose
of that hearing was to rule on Mr. Cooper's motion to intervene in the action brought by the
Authority.See footnote 11 When Mr. Cooper raised the issue of scheduling an evidentiary hearing at which
he possibly would call voters to testify, Judge Kaufman informed Mr. Cooper that he would
not allow voters to testify about what they intended. Later, however, Judge Kaufman stated
that Mr. Cooper could file motions on that issue if he was permitted to intervene in the case.
As previously mentioned, Mr. Cooper was permitted to intervene in the
Authority's action. Thereafter, by order signed by Judge Canady on June 21, 1995, the
Authority's action was consolidated with the action originally brought by Mr. Cooper. After
consolidation, on June 30, 1995, Mr. Cooper filed a "RENEWED MOTION . . . TO CALL WITNESSES," in which he explicitly stated that he did not desire a hearing on this motion.
The Authority filed its opposition to this motion on July 7, 1995.
Meanwhile, on July 3, 1995, Mr. Cooper filed a second motion requesting that
the "briefing schedule . . . be suspended until an evidentiary hearing" could be held "on the
issues of why, when, by whom, and at whose direction text from the daily Senate Journal for
Friday, March 18, 1994, . . . was altered before it was set forth in the bound session volume
for the same date." By order entered on July 10, 1995, Judge Canady stated:
"ALL PARTIES to these consolidated cases, having conferred by telephone conference following the filing on July 3, 1995, of the 'Motion by Thornton Cooper to Suspend Briefing Schedule, etc.,' have resolved the question raised in that motion by stipulating to the inclusion of additional exhibits in the parties' Joint Exhibits, to be filed herein. In view of the delay occasioned by he change in the Joint Exhibits, the parties have further agreed to again alter the briefing schedule to permit additional time for the filing of briefs[.]"
Apparently, the circuit court did not rule on the June 30, 1995, motion, and the parties
proceeded with briefing the merits of the case. Mr. Cooper did not object or move for an
evidentiary hearing after it became clear that the circuit court was deciding the case on the
merits without affording him an opportunity to present witnesses in support of his
contentions. Moreover, at oral argument before this Court, the parties stated that, after the
circuit court received the proposed findings of fact and until this appeal, Mr. Cooper
remained silent as to his desire to present witnesses.
To preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a circuit court to the nature of the claimed defect. The rule
in West Virginia is that parties must speak clearly in the circuit court, on pain that, if they
forget their lines, they will likely be bound forever to hold their peace. See State v. Miller,
194 W. Va. 3, 17, 459 S.E.2d 114, 128 (1995). The forfeiture rule that we apply today
fosters worthwhile systemic ends and courts will be the losers if we permit the rule to be
easily evaded. It must be emphasized that the contours for appeal are shaped at the circuit
court level by setting forth with particularity and at the appropriate time the legal ground
upon which the parties intend to rely.
Here, Mr. Cooper undermined these mechanisms by not taking the necessary
action at a meaningful time to preserve the issue of the lack of an evidentiary hearing.See footnote 12
When it became apparent to Mr. Cooper that the constitutional claim was being decided
without an evidentiary hearing, he made no objection to the procedure. To the contrary, he
conceded at oral argument that because of personal problems he failed to object to the procedure or the findings and conclusions made by the circuit court. Our cases emphasize
the need for particular vigilance when asserting rights where a circuit court delayed making
a final ruling on a matter. See State v. Cabalceta, 174 W. Va. 240, 244, 324 S.E.2d 383, 388
(1984) (finding pretrial motion was "abandoned" by failure to pursue the issue). In Tennant
v. Marion Health Care Foundation, 194 W. Va. 97, ___, 459 S.E.2d 374, 392 (1995), we
addressed a similar procedural issue:
"[W]e refuse to impose on the trial courts of this state a monitoring requirement after an in limine order has been entered. Counsel for litigants have the responsibility for bringing any violations to the court's attention. Without generalizing too broadly, it is normally the case that this kind of monitoring is the job of counsel and not an already burdened circuit judge. In Waldron v. Waldron, 73 W. Va. 311, 317, 80 S.E.2d 811, 814 (1913), we stated a trial judge engrossed in many matters and points pertaining to a case of the magnitude of this one should be aided by the vigilant assistance of counsel: 'If a party who has made an objection permits it to be forgotten, a waiver should be chargeable to the party.'"
This procedural defect requires us to reject Mr. Cooper's claim. Thus, based on this somber
record of inattention, we hold that Mr. Cooper forfeited the claim of procedural errors he
Respected authorities have called for judicial deferral to the political branches regarding the meaning and adequacy of constitutional amendment procedures. E.g., Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L.Ed. 1385 (1939) (the validity of ratification vote on a proposed federal amendment is a political question); Coleman, 307 U.S. at 459, 59 S. Ct. at 984, 83 L.Ed. at 1399 (Black, J., concurring) (same; all questions relating to amendment procedures are nonjusticiable); Laurence H. Tribe, A Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97 Harv. L. Rev. 433 (1983); but see Walter Dellinger, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386 (1983). Much of the concern expressed about judicial involvement in the amendment process has focused on the particularly vague provisions of Article V of the United States Constitution and the corresponding lack of judicially manageable standards. The call for restraint also stems from concerns about the system of checks and balances; that is, in a constitutional system in which courts have, in most critical respects, the final say in interpreting the fundamental law and the power to invalidate the actions of the political branches,See footnote 13 it is ill-advised for courts to assume the power to review the validity of the only procedures available for popularly overturning a judicial interpretation of the constitution.See footnote 14
Although we find merit in these positions, we do not find them controlling in
this case. For one, the amendatory process procedures contained in Section 2 of Article XIV
of our state constitution are considerably more specific than Article V of the federal
constitution. Accordingly, we are not called upon here to engage in a completely open-ended
creation of governing standards. Indeed, state courts generally have exercised the minimal
level of constitutional interpretation as we are asked to provide in this case. E.g., State ex
rel. Wenzel v. Murray, 178 Mont. 441, 585 P.2d 633 (1978); Opinion of the Justices, 267
Ala. 666, 104 So. 2d 696 (1958). Moreover, the present case does not require us to answer
the question of whether the fact that a challenged referendum "overruled" one of this Court's
prior decisions should cause us to exercise greater restraint in ruling on the validity of that
vote. We believe a judicial ruling on the merits of the Article XIV question provides the
finality that is needed.See footnote 15
We, therefore, conclude that review of the validity of the present Amendment
is appropriate. Such review is consistent with the proper role of courts in helping to ensure
that the political processes are operating properly and that they do, in fact, permit the
expression of the will of the people without undue discrimination against minorities. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L.Ed.2d 506 (1964) (requiring one-
person-one-vote apportionment to ensure equal representation); Sturm v. Henderson, 176
W. Va. 319, 342 S.E.2d 287 (1986)See footnote 16 (right to seek political office is a fundamental right);
see generally John Hart Ely, Democracy and Distrust (1980). By policing the political
processes, this Court promotes democratic decision-making and majoritarian values.
Illustrative of this judicial function and most pertinent to this case is State ex rel. Smith v.
Gore, 150 W. Va. 71, 143 S.E.2d 791 (1965), which struck down legislation calling for
election of delegates to a constitutional convention because the law failed to satisfy the equal
apportionment requirement in Section 4 of Article II of the West Virginia Constitution.
Justice Caplan's opinion for the Court emphasized both the crucial role of popular
sovereignty in formulating amendments to, or rewrites of, our fundamental law and the
corresponding need to ensure that citizens have a right to participate in that process on an
equal basis. Similarly, such as we face in this appeal and as more fully developed below,
this Court also has decided challenges to Article XIV's amendment process. In doing so, we
have recognized the importance of giving effect to already stated expressions of the popular
will. E.g., Herold v. Townsend, 113 W. Va. 319, 321, 169 S.E. 74, 75 (1933).
In the present case, we have an expression of the voters' desire and a challenge
to that vote based on a theory that respondents did not meet their constitutional duty to inform citizens adequately about the subject of their vote. We believe that Gore and Herold,
as well as other decisions we discuss below, clearly direct judicial oversight of amendment
procedures and, further, require us to determine whether the democratic process functioned
properly in this particular instance. The issue we must decide is clearly justiciable; its
resolution can be accomplished by the application of previously developed, judicially
manageable standards without risking undue constitutional strain or interbranch conflict.
Accordingly, we proceed with the issue of whether the procedures used to enact the
Amendment were sufficient to satisfy Article XIV and produced a true expression of the
The Secretary of State's Office is required to publish the full text of a proposed amendment in newspapers throughout this State pursuant to Section 2 of Article XIV of the West Virginia ConstitutionSee footnote 17 and W. Va. Code, 3-11-3 (1972).See footnote 18 The full text of the Amendment at issue in this case provides:
"I. The Legislature shall have power to authorize the issuing and selling of state bonds not exceeding in the aggregate three hundred million dollars, which shall be in addition to all other bonds heretofore authorized. The proceeds of said bonds hereby authorized to be issued and sold shall be used and appropriated solely for the construction, extension, expansion, rehabilitation, repair and improvement of water supply and sewage treatment systems and for the acquisition, preparation, construction and improvement of sites for economic development in this state in a manner and subject to such conditions, qualifications and requirements as shall be prescribed by general law. Such bonds may be issued and sold at such time or times and in such amount or amounts as the Legislature shall authorize. When a bond issue as aforesaid is authorized, the Legislature shall, at the same time, provide for the irrevocable dedication, prior to the application of such tax proceeds for any other purpose, of an annual portion of any gross receipts tax which is then currently imposed on businesses that sever, extract and, or produce natural resources within this state which will be sufficient to pay, as it may accrue, the interest on such bonds and the principal thereof, within and not exceeding thirty years and all such taxes so levied and the additional tax hereinafter described shall be irrevocably dedicated to such purpose until such principal and interest on such bonds are finally paid and discharged: Provided, That when a bond issue as aforesaid is authorized, the Legislature shall at the same time provide for the collection of an additional annual state tax sufficient to pay as it may accrue the interest on such bonds and the principal thereof within and not exceeding thirty years: Provided, however, That such additional tax shall be levied in any year only to the extent that the moneys from the tax previously dedicated herein are insufficient therefor. Any of the covenants, agreements or provisions in the acts of the Legislature levying and dedicating such taxes shall be enforceable in any court of competent jurisdiction by any of the holders of the bonds.
"II. The Legislature shall have power to enact
legislation to implement the provisions of this amendment."
As previously mentioned, over the past several years, the Secretary of State's Office generally has not published the full text of proposed amendments but, instead, has published the "Summary of Purpose."See footnote 19
The "Summary of Purpose" of the present Amendment adopted by the
Legislature and published in the newspapers states:
"To allow the issuing and selling of not more than three hundred million dollars in general obligation bonds of the state, the proceeds of which will be used (1) to finance the construction and improvement of water systems and (2) to finance sewage systems and the acquisition and improvement of economic development sites in this state; to dedicate as the initial source of repayment of the principal of and interest on the bonds, a portion of the existing gross receipts tax on the activity of severing, extracting or producing natural resources, and providing for the levy of additional taxes sufficient to pay such bonds to the extent that the amounts dedicated as aforesaid are insufficient therefor."
Mr. Cooper asserts not only that the complete failure to publish the actual text of the Amendment makes the adoption of the Amendment per se invalid, but he also maintains that the published "Summary of Purpose" language mislead, misinformed, and failed to inform the voters as to the actual contents of the Amendment.
As we stated in our prior order, entered on December 14, 1995, this Court has
interpreted Section 2 of Article XIV on three prior occasions. State ex rel. Smith v. Kelley, 149 W. Va. 381, 141 S.E.2d 142 (1965); State ex rel. Morgan v. O'Brien, 134 W. Va. 1, 60
S.E.2d 722 (1948); Herold v. Townsend, 113 W. Va. 319, 169 S.E. 74 (1933). Most
recently, we set forth the test for analyzing the constitutionality of an amendment challenged
on the basis of some irregularity in the publication process in Syllabus Point 5 of Smith,
supra, which states:
"The self-imposed limitations on the power of the people of the state to amend the Constitution should not be so construed as to defeat the will of the people, when clearly and decisively expressed, on account of a failure to comply literally with the publication requirement contained in Constitution, Article XIV, Section 2, if such publication requirement is complied with substantially, in the absence of any indication of fraud, and in the absence of any indication that the voters were misled, misinformed or uninformed as a consequence of the failure of a literal compliance with such constitutional requirement."
This test, referred to as the "substantial compliance" rule, will permit this Court to uphold a constitutional amendment that was approved by the voters of this State, even if there were some departures from Article XIV in the ratification process, provided there is no evidence of fraud or voter confusion. Syl. pt. 5, Smith, supra. As Smith implies, and we emphasize, there is no mechanical formula for identifying which deviations from the literal requirements of Section 2 of Article XIV cross the constitutional line. Consequently, we must determine, case by case, whether a particular deviation produced a fair risk of preventing a true expression of the people's will.
Finding substantial compliance, we issued a writ of mandamus in Smith against
the Treasurer ordering him to implement and effectuate the "Better Roads Amendment,"
which was ratified by the voters. The validity of the amendment was put at issue because
it was not timely published in several counties in accord with the three-month constitutional
requirement. In one county, the amendment was not published until twelve days prior to the
general election. We found the untimely publications did not warrant declaring the
amendment unconstitutional. We cautioned, however, that the importance of the case and
the constitutional difficulty that ensued as a result of "the delay of publication should serve
as a solemn reminder of the devastating consequences which might in the future result from
a failure to recognize the grave importance of the requirement of publication contained in the
constitutional provision involved in this case." 149 W. Va. at 395, 141 S.E.2d at 151.
Smith relied upon our previous decision in Morgan, supra. In Morgan, a
proposed, but not yet voted upon, amendment calling for the issuance of bonds for secondary
roads was challenged on the ground that it was not published until "about four weeks after
the date on or before which the publication was required by law." 134 W. Va. 4, 60 S.E.2d
725. We stated in Syllabus Point 1 of Morgan:
"Though the provision of Section 2, Article XIV of the West Virginia Constitution, requiring a three months' publication of a proposed amendment to the Constitution, is mandatory, such provision is procedural and a substantial compliance therewith is sufficient to base a submission of a proposed amendment to the voters of the State."
We found that the publication, although late, substantially complied with Section 2 of Article XIV and, therefore, denied a motion for a writ of mandamus to be issued against the Secretary of State to revoke his certification the proposed amendment be submitted to the electorate at the general election.
The first time this Court addressed the publication requirement was in Herold,
supra.See footnote 20 In that case, the Legislature passed the proposed Tax Limitation Amendment on August 6, 1932. For the proposed amendment to be timely published, it was necessary to
publish it on or before August 8, 1932, which proved to be an impossible task. 113 W. Va.
at 320, 169 S.E. at 75. The amendment was published throughout the State on or before
August 13, 1932. 113 W. Va. at 321, 169 S.E. at 75. We found the publication to be in
substantial compliance with the Constitution.
We can identify several principles from these decisions. First, the procedures
set forth in Section 2 of Article XIVSee footnote 21 are designed to achieve two goals: (1) to ensure,
through the endorsement of a legislative supermajority and the support of a majority of those
voting in a statewide referendum, that constitutional amendments reflect a true and broad
based political consensus; and (2) to guarantee that such a referendum may be held only after
the Legislature has taken steps to inform the electorate fully and accurately about the
proposed amendment. Second, and consequently, no amendment to the Constitution can be
effected without: (1) the duly recorded concurrence of two-thirds of the members in each
house; (2) the submission of the proposed amendment to the people; (3) the amendment's
ratification by a majority of those voting in a statewide referendum; (4) the fulfillment of the
legislative duty to inform the people about the proposed amendment through at least substantial compliance with the directives of Section 2 of Article XIV and in a manner
"sufficient to permit [the voters] to make up their minds," Morgan, 134 W. Va. at 19, 60
S.E.2d at 732; and (5) an absence of evidence that the State's voter education mislead or
confused the voters if it was not made in strict compliance with Article XIV. The first three
requirements are literal applications of Section 2; the latter two reflect a pragmatic judgment
that mere administrative errors in the informational procedures should not be permitted to
thwart implementation of an otherwise valid expression of the people's will. These principles
are consistent with what we perceive to be the prevailing view among other state courts
which have confronted similar issues. E.g., Opinion of the Justices, 267 Ala. 666, 104 So.
2d 696 (1958); Opinion of the Justices, 275 A.2d 558 (Del. Supr. 1971); Buchanan v.
Kirkpatrick, 615 S.W.2d 6 (Mo. 1981); but see Kremer v. Grant, 529 Pa. 602, 606 A.2d 433
Both courts in Montana and Delaware have addressed the validity of
amendments passed after their states failed to publish the full text of the amendments. In
State ex rel. Montana Citizens for the Preservation of Citizens' Rights v. Waltermire, 738
P.2d 1255 (Mont. 1987), the state circulated a summary that had a material defect. For that
reason, among several others, the Montana court held the referendum measure to be invalid.
In addition, in Opinion of the Justices, 275 A.2d 558 (Del. Supr. 1971), the Delaware
Supreme Court voided an amendment in which the State not only failed to publish the full
text, it failed to publish anything, including a summary. The court reasonably concluded "substantial compliance may not be predicated upon no compliance[.]" 275 A.2d at 562.
We find the factual differences between the Montana and Delaware cases and this one are
significant, and we believe call for a different result.
Application of the above principles to the present facts reveals that our
Amendment is valid. Certainly, two-thirds of the members in each house endorsed the
measure; it was submitted to the people; and it received support from a majority of those
voting. In addition, the Legislature, through the Secretary of State, had the summary
published in a timely fashion in each county, save one. The summary described the
Amendment in understandable terms and excluded no material information about the
proposal. No reasonable person would have been mislead or confused by the summary.See footnote 22
Thus, the voter education was "sufficient to permit [the voters] to make up their minds[.]"
Morgan, 134 W. Va. at 19, 60 S.E.2d at 732. Finally, we have no probative evidence that
there was voter confusion or misunderstanding.See footnote 23 We can invalidate the Amendment only if we conclude that the publication of the full text is so critical a deficiency that it is per se
not substantial compliance. We decline to draw that conclusion. Under the particular facts
of this case, involving this Amendment and its summary, we find that publication of the full
text would not have enhanced voter enlightenment any more than publication of the summary
We, therefore, hold that the procedures that lead to the passage of the
Amendment were sufficient to satisfy Article XIV and create a valid amendment. In so
holding, we emphasize that (1) the published summary fully, fairly, and accurately described
the Amendment; (2) the summary was, in fact, more understandable than the actual text of
the Amendment; (3) the summary was adopted by the LegislatureSee footnote 24; (4) there was no
probative evidence that the summary mislead voters or reasonably could be read to have had
a misleading effect; and (5) there was no probative evidence that publication of the full text would have made any difference in the outcome of the referendum. We are wary, too, of
holding per se invalid a procedure that has been used at least twenty-three times in voting on
the past twenty-five proposed amendments of which thirteen of the proposed amendments
were enacted.See footnote 25
Having so ruled, however, we specifically decline to hold that publication of
a summary always will satisfy the substantial compliance standard set forth in our cases.
Indeed, because there is a sufficiently great risk that voter manipulation or a significant
oversight can occur when the full text is not widely published, we are inclined to strictly
review any summary published in lieu of the full text. Moreover, we do not understand why,
if Section 2 of Article XIV requires "the legislature to . . . cause [the proposed amendment]
to be published" in the State's newspapers, the full text was not published. Moreover, all this
post-referendum controversy and uncertainty can be avoided if the Article XIV procedures
are followed strictly. The directions of the Legislature to the Secretary of State to publish
the full text of proposed amendments fulfill the Legislature's obligation to inform the people about any proposed amendment and deserve careful, complete, and timely observance, as in
any other case of a ministerial duty imposed by law on a constitutional officer.See footnote 26
We also are cognizant and apprehensive of the fact that in each of our
substantial compliance cases there has been progressively less compliance. This trend is not
healthy and, if not reversed, eventually will lead to considerable disruption, costs, and
controversy when this Court has to overturn the results of a referendum. If the Article XIV
procedures now are deemed to be too cumbersome, expensive, or unnecessary, then the
solution is to amend the provision--using the proper procedures, of course.
For the foregoing reasons, the decision of the Circuit Court of Kanawha
County upholding the validity of the Infrastructure Improvement Amendment hereby is
affirmed.See footnote 27
Footnote: 1 The Authority and its responsibilities are established in W. Va. Code, 20-5C-1, et seq.
Footnote: 2 The Council was created and given authority in 1994 pursuant to W. Va. Code, 31- 15A-1, et seq.
Footnote: 3 Apparently, the cases were assigned to different circuit judges. Mr. Cooper's action was assigned to the Honorable Herman G. Canady, Jr., while the Authority's action was assigned to the Honorable Tod J. Kaufman. The consolidated case was presented to Judge Canady.
Footnote: 4 Mr. Cooper claims that prior to the election he chaired the Bipartisan Organization Against Rising Debt, the only political committee opposed to the Amendment that was registered with the Secretary of State's Office. Mr. Cooper further asserts that his organization only spent $65.40, plus in-kind contributions, promoting its position. On the other hand, he maintains that the West Virginians for Clean Water and Jobs had a total of $265,607.39 in expenditures and unpaid bills, plus in-kind contributions, promoting ratification of the Amendment.
Footnote: 5 In relevant part, Section 2 of Article XIV states:
"Any amendment to the Constitution of the State
may be proposed in either house of the legislature at any regular
or extraordinary session thereof; and if the same, being read on
three several days in each house, be agreed to on its third
reading, by two thirds of the members elected thereto, the
proposed amendment, with the yeas and nays thereon, shall be
entered on the journals, and it shall be the duty of the legislature
to provide by law for submitting the same to the voters of the
State for ratification or rejection, at a special election, or at the
next general election thereafter, and cause the same to be
published, at least three months before such election in some
newspaper in every county in which a newspaper is printed. If
a majority of the qualified voters, voting on the question at the
polls held pursuant to such law, ratify the proposed amendment,
it shall be in force from the time of such ratification, as part of
the Constitution of the State." (Emphasis added).
Footnote: 6 With respect to creating a summary of purpose and a title designating a number to a proposed amendment, the Legislature's and Secretary of State's responsibilities are set forth in W. Va. Code, 3-11-2 (1972), which states, in part:
"In any joint resolution proposing an amendment
to the West Virginia constitution, for ratification or rejection by
the voters, the Legislature shall for convenience of reference
thereto, assign a title to such proposed amendment and shall set
forth a summary of the purpose of such proposed amendment.
If the Legislature shall fail in any such resolution to include a
title and summary, or either, the secretary of state shall supply
such omission or omissions, and certify the same to the ballot
commissioners of each county. Whether set forth in such
resolution or certified by the secretary of state, it shall be the
duty of the ballot commissioners in each county to place upon
the official ballot at the election at which such proposed
amendment is to be voted upon, or upon the ballot label in
counties where voting machines are used, the title and summary
of such proposed constitutional amendment.
"The Legislature may, in the joint resolution, give
a proposed amendment a number. If this is done, and if there is
more than one amendment submitted at the same election, the
position of such amendment on the ballot shall be in accordance
with the number so designated. When numbers are not so
designated by the Legislature, the secretary of state, in certifying
the election ballot, shall number the amendments consecutively
in accordance with the dates of their final submission by the
See also W. Va. Code, 3-11-4 (1972) (the title of an amendment and the summary of purpose is to be placed on the ballot).
Footnote: 7 Although it was averred that the Secretary of State's Office mailed to a newspaper in each county a legal advertisement relating to the Amendment, publication did not occur in Greenbrier County.
Footnote: 8 The circuit court also found: "Since 1982, twenty-five amendments to the Constitution -- with only the summary of purpose being published -- have been proposed to the voters of West Virginia for ratification or rejection. Of this number, thirteen have been ratified. Included in this number is the Infrastructure Improvement Amendment[.]"
Footnote: 9 This appeal was filed by the Council. We refused Mr. Cooper's motion that the Council's appeal should be dismissed because he was the only party actually aggrieved by the circuit court's decision and, therefore, should be entitled to be the appellant in this matter.
Footnote: 10 As best we can tell, Mr. Cooper wanted to call witnesses to explain how they were mislead by the State's failure to publish the full text and how their misunderstandings compounded other voters' confusion. While such testimony may be relevant in determining whether the State's action was misleading, the testimony is entitled to little weight. In deciding whether the State in this case substantially complied with Article XIV, see Part D, infra, a court must determine, under an objective standard, whether the published summary could have mislead or confused a reasonable voter. If Mr. Cooper can identify and produce reasonable persons who can testify that they were mislead, then a court may consider that in deciding whether the objective standard has been satisfied. That there may have been some confused voters, however, does not prevent a court from comparing the proposed amendment with the published summary and concluding that the latter sufficiently described the full text such that a reasonable voter would not be mislead or confused. The best evidence regarding that conclusion will necessarily be the two documents in question. Indeed, a court would not commit error by excluding all testimonial evidence if the court properly had concluded that the summary was not, on its face, reasonably susceptible to an interpretation that could render it misleading or confusing.
Footnote: 11 See note 3, supra.
Footnote: 12 We do not suggest that a party is required to repeat pretrial requests, motions, or objections that have been ruled upon following a circuit court's announcement of judgment if the reasons for the requests, motions, or objections remained clear after the judgment is pronounced. In this case, the circuit court never gave a definitive ruling but left the issue open for later development. Mr. Cooper did not renew his request for an evidentiary hearing or formulate a new objection at that time; thus, the circuit court may have thought that either the earlier request was abandoned or Mr. Cooper acquiesced in the final result without the need for further development. Nevertheless, we observe that this type of appeal can be avoided if a circuit court after announcing its findings asks counsel whether there are any requests, motions, or objections that have not been ruled upon in the record.
Footnote: 13 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The power of judicial review of the constitutionality of legislation expressly is conferred on this Court by Section 3 of Article VIII of the West Virginia Constitution which states, in part: "The [Supreme Court of Appeals] shall have appellate jurisdiction . . . in cases involving personal freedom or the constitutionality of a law."
Footnote: 14 Tribe, 97 Harv. L. Rev. at 435, states: "Among [the vices of judicial review of amendment procedures] is the danger . . . of having the Supreme Court closely 'oversee the very constitutional process used to reverse [its] decisions.'" (Citation omitted).
Footnote: 15 Millions of dollars in State-issued bonds hang in the balance on the validity of the Amendment and, thus, on this Court's reaching the merits. Due to the impact uncertainty can have on a bond issuance, we would like to avoid the confusion that exists about whether, for example, the United States Constitution now has a 27th Amendment (amendment, introduced in 1789, did not receive three-fourths ratification from the state legislatures until 1992).
Footnote: 16 Superseded by constitutional amendment as stated in Adkins v. Smith, 185 W. Va. 481, 408 S.E.2d 60 (1991).
Footnote: 17 See note 5, supra.
Footnote: 18 In part, W. Va. Code, 3-11-3, provides: "The secretary of state shall cause each proposed amendment, with its title and summary of purpose, to be published as a Class I legal advertisement at least three months before such election in some newspaper in every county in the state in which a newspaper is printed."
Footnote: 19 See note 8, supra.
Footnote: 20 Although Section 2 of Article XIV made significant changes to its antecedent, Section 2 of Article XII of the West Virginia Constitution of 1863, and has itself been amended, the requirement that the proposed amendments be published has been included in each version. The original 1863 text provided:
"Any amendment to the Constitution of the State may be proposed in either branch of the Legislature; and if the same, being read on three several days in each branch, be agreed to on its third reading, by a majority of the members elected thereto, the proposed amendment, with the yeas and nays thereon, shall be entered on the journals, and referred to the Legislature at the first session to be held after the next general election; and shall be published, at least three months before such election, in some newspaper in every county in which a newspaper is printed. And if the proposed amendment be agreed to during such session, by a majority of the members elected to each branch, it shall be the duty of the Legislature to provide by law for submitting the same to the voters of the State, for ratification or rejection. And if a majority of the qualified voters, voting upon the question at the polls held pursuant to such law, ratify the proposed amendment, it shall be in force from the time of such ratification, as part of the Constitution of the State. If two or more amendments be submitted at the same time, the vote on the ratification or rejection, shall be taken on each separately." (Emphasis added).
Footnote: 21 The provisions in Section 2 of Article XIV limit amendments to a single subject or to related subjects and preclude any other matter from being on the ballot when the referendum is voted on at a special election. They also are designed, at least in part, to promote voter awareness and understanding. These provisions, of course, are not implicated in this case.
Footnote: 22 We, therefore, reject Mr. Cooper's contentions that the summary was misleading. The summary speaks for itself and, when compared to the Amendment, its accuracy in capturing the Amendment is patent. Nevertheless, Mr. Cooper argues that the inclusion of the parenthetical numbers in the summary could mislead voters into believing the entire thrust of the Amendment was to finance only water and sewer systems rather than water and sewer systems and economic development. Such a mislead voter, however, would be duped more by his failure to read the literal language of the summary than by clumsy construction. We simply are unwilling to conclude that insertion of the parentheticals "(1)" and "(2)" into the summary render it misleading, thereby, requiring us to overturn a statewide referendum.
Footnote: 23 The circuit court also found in paragraph 43 of the August 30, 1995, order that the
Amendment was the subject of extensive statewide publicity in the months preceding the election. The publicity included discussions in newspapers around the State, a public television debate, and at least eight town meetings called to inform voters about the Amendment.
Footnote: 24 The Legislature's adoption of the summary is critical for several reasons. As the drafting body of the Amendment, it especially should be well suited to author an accurate summary. In addition, legislators will have the fear of voter retribution if they are found to have mislead their constituents. Finally, legislative adoption of the summary, if done by a two-thirds majority and subsequent statewide publication, means that the summary effectively will have gone through the same procedural prerequisites as Article XIV provides for the full text.
Footnote: 25 According to joint exhibit 33 submitted by the parties, the full text of the proposed Uniform School Funding Amendment of 1988 was published. There is no evidence that any publication was made of the proposed Bond Enhancement Amendment of 1988. Neither of these proposed amendments was ratified.
Footnote: 26 In fairness to the Legislature, we iterate that it enacted legislation directing the Secretary of State to publish the full text of proposed amendments in the State's newspapers at least three months before the election. W. Va. Code, 3-11-3; note 18, supra. In fairness to the current Secretary of State, we should acknowledge that the practice of publishing only the summary was initiated by his predecessor and was approved by an informal opinion from the Attorney General's Office.
Footnote: 27 We note that, in addition to the publication issue, a number of other challenges to the validity of the Amendment were presented in the circuit court. We have examined carefully each of these questions, particularly its manner of adoption by the Legislature and the interrelationship between the Amendment and other constitutional provisions regarding public debt, and conclude them to be wholly without merit. Accordingly, we resolve all outstanding issues related to the validity of the Amendment and decree that we perceive no impediment to the issuance of bonds pursuant to such Amendment.