No. 26653 - State of West Virginia ex rel. John F. Rist, III, v. Honorable Cecil H.
Underwood, Governor of the State of West Virginia, and Robert S. Kiss
No. 26654 - State of West Virginia ex rel. Richard A. Robb, W. Kent Carper, Rudolph
L. diTrapano, Roger D. Forman, Marvin W. Masters, Anthony J. Majestro, American
Civil Liberties Union of West Virginia, Thomas W. Pettit, Mark E. Gaydos, Carl N.
Frankovitch, Michael G. Simon, James C. Peterson, R. Edison Hill, Harry G. Deitzler,
Michael C. Bee and Norman Steenstra, Jr. v. Honorable Cecil H. Underwood, Governor
of the State of West Virginia, and Robert S. Kiss
Maynard, Justice, dissenting:
With the majority decision, this Court has attacked both the Legislature and the Governor with a sledgehammer. I, for one, do not believe that they will take it lying down. This decision will have far-reaching and long-lasting consequences for the entire judicial branch of government in West Virginia for many years to come.
Every eighth grade West Virginia civics student understands our system of
checks and balances. When one branch of government becomes arrogant in its use of
power, the system of checks and balances provides a remedy. In plain language, when one
branch behaves like barracudas, another branch reels'em in. In this case, the majority
has stripped the Governor of his power of appointment and denied members of the
Legislature their right to hold certain public offices. I fear the outcome will be grave.
This decision amounts to nothing less than a judicial Pearl Harbor. Japanese
Admiral Isoroku Yamamoto is quoted as saying about the United States right after the
attack, I fear all we have done is awaken a sleeping giant and fill him with a terrible
resolve. To continue the metaphor, that is precisely what this Court has done to the
Legislature of West Virginia. This Court cannot continue to thumb its nose at the other
branches of government. The Legislature and the Governor will not stand by and continue
to allow this Court to usurp their constitutional powers. I genuinely fear that the
Legislature will now be a giant filled with a terrible resolve. There is already talk in
the press that the Legislature may attempt to make changes in the budget making power
of the Court. I fervently hope that does not occur. But some effort to exercise checks and
balances on this Court's power will surely be attempted. That effort could even result in
a fundamental change in the way we select judges in this State. In fact, many West
Virginia lawyers and several state newspapers have already advocated radical changes in
the judicial selection process. Some urge merit selection for judges and others support
nonpartisan elections. The minority opinion in The Final Report of the Commission on The Future of the West Virginia
Judiciary recommends the merit selection of judges. It would not
surprise me if there was a movement to adopt the Virginia system wherein judges are
selected by the Legislature. While it is impossible to predict what specific changes will
come about as a result of this decision, make no mistake, changes are coming.
Aside from the many negative practical effects of this decision, a few of
which are set forth above, the majority is wrong about the law. First, the majority ignores
clear constitutional language. Article VI, Section 15 of our Constitution prohibits a
senator or delegate from being elected or appointed to a civil office of profit during the
same term in which the civil office was created, or its emoluments increased, except
offices to be filled by election by the people. Thus, this provision expressly excludes
publicly-elected offices from its prohibition. It is undisputed that the office of justice of
the supreme court of appeals is constitutionally established as a publicly-elected office or
one to be filled by election by the people. Article VIII, Section 2 of the Constitution
provides, in relevant part, that [t]he justices shall be elected by the voters of the State for
a term of twelve years, unless sooner removed or retired as authorized in this article.
Delegate Kiss fits within the exception to the prohibition contained in Article VI, Section
15 because he was appointed to the office of justice which is an office to be filled by
election by the people. The office does not temporarily shift from being an elective office
to being an appointive office merely because a seat is vacated which must be filled until
the next election.
Second, the majority opinion is wrong because it disregards our precedential authority which states that when we consider the constitutionality of an executive appointment, there is a strong presumption in favor of eligibility. As noted above, believe the language of Article VI, Section 15 is clear. Even if it is not clear, however, the respondents should prevail. Our law states that [i]n the event of ambiguity a constitutional amendment will receive every reasonable construction in favor of eligibility for office[.] Syllabus Point 3, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976). This is because the governor's power of appointment, within constitutional limits, is plenary. Also, the valuable right of a citizen to hold public office should not be denied except by plain provisions of the law. In the instant case, Governor Underwood used his authority under Article VIII, Section 7 of the Constitution to appoint Speaker Kiss to fill a vacancy of this Court. During oral argument, the petitioners in case No. 26654 acknowledged that Article VI, Section 15 is susceptible of two different interpretations. Accordingly, we should construe any ambiguity in Article VI, Section 15 in favor of Speaker Kiss's eligibility for office as plainly required by well-settled law. Instead, the majority does the opposite and construes an ambiguity manufactured by these petitioners in favor of ineligibility.
Third, the majority opinion is wrong because it ignores the persuasive authority of other states. Courts which have considered this issue under state constitutions with similar provisions have ruled that such provisions do not prohibit the gubernatorial appointment of members of the legislature to a judicial office where the members of such judicial office are subject to public election. The constitutions of nine other states have constitutional provisions similar to our own which exempt offices to be filled by election by the people. See Ala. Const. Art. IV, § 59; Cal. Const. Art. 4, § 13; Ind. Const. Art. 4, § 30; Iowa Const. Art. 3, § 21; Ky. Const. § 44; Me. Const. Art. 4, Pt. 3, § 10; Miss. Const. Art. 4, § 45; Nev. Const. Art. 4, § 8; and Or. Const. Art. IV, § 30. In Opinion of the Justices, 279 Ala. 38, 181 So.2d 105 (1965) and Carter v. Commission on Qualifications of Judicial Appointments, 14 Cal.2d 179, 93 P.2d 140 (1939), the supreme courts of Alabama and California concluded that a legislator may be appointed to an office which is normally filled by election by the people. The Supreme Court of Alabama opined:
If the section ended just before the word except, no member of the Legislature could ever be appointed, during his term, to any office created by the Legislature of which he was a member. But the words, except such offices as may be filled by election by the people must have some meaning. The only reasonable construction is that excepted from the rule of Section 59 is an appointment to an office which may be filled by an election by the people.
Opinion, 279 Ala. at 39, 181 So.2d at 107. Likewise, the Supreme Court of California explained:
If the section as originally adopted had any other
meaning than that the exception removed elective
offices from the operation of the prohibitory clause, the
inclusion of the exception was meaningless and
surplusage, for the section would then mean that
legislators were ineligible for appointment except when
they obtained their offices by election. . . . Some
meaning must be ascribed to the excepting clause and
when we seek to ascertain it, the reasonable, if not the
only logical conclusion is that the exception had the
effect of describing the kind or character of the offices
thereby removed from the operation of the prohibitory
clause and not the method by which the offices were to
Carter, 14 Cal.3d at 186, 93 P.2d at 144. I believe this reasoning is right on point and should have been adopted by this Court.
What truly astonishes me about the majority opinion is the fact that it is so empty of legal support. The majority admits that [t]he records of the constitutional convention shed no light . . . on the intended meaning of [the language of Article VI, Section 15], as the provision was adopted without amendment or debate. The majority then proceeds, however, to discern the thoughts and intentions of a disparate group of Framers from 1872 despite the nonexistent records. For example, the majority finds that the Framers of the 1830 Constitution would have understood the Emoluments Clause as primarily imposing a check on legislative corruption. On what does the majority base such a claim? The majority also concludes that the alteration in the 1851 Virginia Constitution suggests an intent to clarify that popular election was the only means of abating the impediment imposed by the Emoluments Clause even though the proceedings of the constitutional convention do not indicate an intent to work any substantive changes on the provision. Further, opines the majority, [t]he architects of our 1872 Constitution
. . . were no doubt influenced by the Reconstruction era. Were they really? In what way
were they influenced? In addition, we are informed by the majority that [p]reventing
abuses and self-dealing of the 'carpetbaggers' of the Reconstruction period must have been
foremost in the[Framers'] minds. Again, asserts the majority, [t]he abuses that occurred
during Reconstruction, which resulted most notably from a lack of popular accountability,
must surely have molded the thinking of the Framers[.] I wish I had been invited to the
seance, or had access to the majority's crystal ball, so that I too could have engaged in
enlightening dialogue with the 1872 Framers.
Seriously, though, the language of this decision, such as would have
understood, suggests, were no doubt, must have been, must surely have, points
to the simple fact that the majority was guessing. Finding a complete lack of legal support
for its desired result, the majority made up history out of whole cloth. For thirty-seven
pages the majority raises the specter of carpetbaggers and the evil of the reconstruction
era, wholly irrelevant to the instant case, only to reach the conclusion that the writ is
granted because the majority does not want Speaker Kiss on this Court. Finally, the
majority fails to see how its conclusion will have any serious negative impact upon the
ability of members of the Legislature to later serve the people of the State. Well, let me
tell you how.
Every member of the Legislature should be appalled and furious when they
realize that this decision has effectively denied each of them one of the most basic rights
of all Americans - the right to hold certain public offices. But it goes much further than
that. Now, when the Legislature votes for any increase in emoluments applicable to all
state employees, regardless of how small the increase, delegates and senators are
disqualified from appointment to all state offices during that term. In other words, if the
Legislature votes the slightest increase to state employees in health coverage, or retirement
benefits, or vacation benefits, or travel expenses, or per diem pay, all delegates and
senators are now barred from appointment to any other state position which becomes
vacant during that same term. The door to judicial and executive branch positions has
been slammed shut to legislators for a significant period of time after any increase in
emoluments. This is true even of those legislators who vote no on any increase! For
example, no delegate can be appointed to any vacant senate seat following a legislative pay
raise, or any increase in legislative per diem, or any emolument. This is just one small
illustration of the brutal impact of this decision on legislators. There are many more but
to list them all would cut down a small forest.
Also, this decision will have an awful effect on all our circuit judges. One of my main priorities as a member of this Court has been to preserve and enhance the authority, independence and discretion of the office of Circuit Judge. This means guarding the rights of circuit judges both on the law side and the administrative side of courts, which includes preserving judges' tenure in office, improving salary and benefits, and providing adequate support staff and equipment. I hope this decision does not portend failure in this important goal, but I fear that it does.
In addition, the majority has done a grave disservice to Speaker Kiss. This
decision is the political mugging of a good man. Speaker Kiss is an able man of great
integrity and intellect, respected and honored by his peers in State government and in the
legal profession. He has a sharp mind and a big heart. He would be a superb judge.
Sadly, he has been robbed of his legitimate right to sit on this Court.
Finally, aside from legal considerations, there is real irony in this decision. At the outset, I am not suggesting by this comment that cases should be decided based on such factors. This is merely an observation, nothing more. It has nothing to do with the law. The observation is thus: some members of this Court argued the case and demonstrated the need for a judicial pay raise for all judicial officers during the 1999 legislative session. Some of the same members of this Court have now voted to deny to a member of that same Legislature his legal right to sit on this Court because of that very pay raise. What irony! What chutzpah!
Tragically, people today in West Virginia and across the country have lost
confidence in the American court system. The decision in this case is a perfect example
of the reason why. The majority has taken the simple, plain language of a clear
constitutional provision and twisted it beyond all recognition in order to achieve its own
ends. With this decision, the majority abandons the sure foundation of settled law;
ignores plain constitutional language; rejects the authority of the Governor to fill vacancies
on this Court; usurps the power of the Legislature; and disregards precedential and
persuasive authority. The consequences are troubling. We are subjected to a legal
opinion bereft of sound legal precedent and supported only by the majority's own spurious
reasoning. This decision is on par with that of Captain Smith to go full steam ahead on
that frigid night in 1912 when he steered the Titanic. Therefore, I dissent.
I am authorized to state that Justice Miller joins me in this dissent and also
reserves the right to file a separate opinion.