No. 27458 - State of West Virginia ex rel. George E. Carenbauer v. Honorable Ken
Hechler, Secretary of State of the State of West Virginia, and the
Honorable Warren R. McGraw, Justice of the Supreme Court of
Appeals of West Virginia
Starcher, J., dissenting:
The majority opinion unconstitutionally steals from the voters of West Virginia
the right to decide whether or not they, the voters, would elect a qualified, eligible candidate
-- Justice Warren McGraw -- to a 12-year seat on our Supreme Court of Appeals. See footnote 1
The majority opinion characterizes my remarks as making clear that . . . [I]
refuse to believe that the majority has not wrongly based its ruling on perceived political
leanings. Id. My choice would be not to respond at all to this swipe by the majority, but
the reader of this opinion is entitled to the full picture. Rather than dispute the majority's
characterization of my remarks, then, I will simply set those remarks forth in full in an
Appendix to this opinion.
The reader may judge for him- or herself whether the majority correctly characterized my remarks regarding the procedures used to select the panel members who heard the instant case. I suggest that the majority's characterization is wrong.
But it is a case of the pot calling the kettle black for the majority opinion to
characterize others' language as slanderous.
For example, the majority opinion describes my dissenting language in this Court's original order by which we agreed to hear the merits of this case as contorted logic, shallow, and jurisprudentially indefensible, ___ W.Va. at ___ , ___ S.E.2d at ___, Slip. Op. at 11, 12. And the majority opinion calls Justice McGraw's attorney insulting and grossly unprofessional, ___ W.Va. at ___ , ___ S.E.2d at ___, Slip. Op. at 30. The majority opinion further describes Justice McGraw as audacious and impugning the character of this Court, ___ W.Va. at ___ , ___ S.E.2d at ___, Slip. Op. at 6, 31.
I could go on, but these examples suffice. It was a mistake to include such ephemeral, ill-considered gibes in a formal opinion of this Court. Such an unfortunate choice of words certainly does nothing to encourage collegiality on the Court. (Dissents, being more personal than Court opinions, historically have greater latitude, but even in dissents, harsh, ad hominem, language does not age well.)
In other words, the majority says that imposing a restriction that affects
certain people -- by saying they are not eligible to be elected to a seat on this Court -- is
not the same thing as holding that those same people are not qualified to hold a seat on this
For any sensible person, this is an utterly non-existent distinction.
After wading through a field of irrelevant cases that are apparently cited and discussed to provide cover for the majority's lack of authority for its holding, the majority opinion ultimately hangs its jurisprudential hat on our recent case of Philyaw v. Gatson, 195 W.Va. 474, 466 S.E.2d 133 (1995).
In Philyaw, we upheld a (properly promulgated) Supreme Court rule that said that a magistrate court employee -- not a judicial officer -- had to resign their employment with the court system, if they ran for a non-judicial office.
We said that this rule was not an imposition of an additional qualification on a candidate for office, but was a reasonable requirement for retaining employment [in the] . . . judicial branch. We specifically grounded the reasonableness of this regulatory restriction on judicial employees upon the analogous express constitutional provision forbidding judicial officers from running for non-judicial office.
Contrasting Philyaw with the instant case: the majority is not reviewing an employment restriction -- it is creating one, out of whole cloth.
Prior to this case, no West Virginia judicial officer or employee has ever been barred from running for any judicial office -- because, of course, their right to do so is specifically reserved in our Constitution.
The majority has by its own acknowledgment created a restriction that has no grounding in any written provision of any rule, statute, or constitutional phrase.
The restriction that the majority is creating is not -- as it was in Philyaw for the judicial employee -- part of any power that is given to this Court to set the conditions for Justice McGraw's employment in his current seat on this Court.
Justice McGraw's employment conditions are entirely set by the Constitution and other applicable express law. Justice McGraw could be removed from office for a breach of those conditions -- not by any vote of the majority of this Court -- but only by impeachment.
Philyaw, then, the sole case that the majority uses to support its distinction- without-a-difference reasoning, is totally inapposite to the case of Justice McGraw.
The State may not take action to deny a fundamental constitutional right unless
there is a showing that such denial is necessary to achieve a compelling state interest.
Syllabus Point 3, in part, State ex rel. Sowards v. County Com'n of Lincoln County, 196
W.Va. 739, 474 S.E.2d 919 (1996):
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. The fundamental and constitutional right to run for public office cannot be denied unless necessary to achieve a compelling state interest.
But this compelling state interest analysis is used only where the State has taken some action to deprive a citizen of a fundamental constitutional right:
It is beyond cavil that when a state acts to the disadvantage of some suspect class or to impinge upon a fundamental right explicitly or implicitly protected by the West Virginia Constitution, strict scrutiny will apply, and the state will have to prove that its action is necessary because of a compelling government interest.
Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 484 S.E.2d 909, 913 (1996) (emphasis added).
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. Syllabus Point 2, State ex rel. Billings v. City of Point Pleasant, 194 W.Va. 301, 460 S.E.2d 436, (1995). Accord, e.g., State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329, 335, 233 S.E.2d 419, 423 (1977); White v. Manchin, 173 W.Va. 526, 318 S.E.2d 470 (1984).
In other words, when the State passes a law that infringes on a fundamental constitutional right, such as the right to stand for election, such a law only withstands strict constitutional scrutiny if it is narrowly tailored to meet a compelling state interest.
Never before has this Court used a compelling state interest analysis, not to review, but to create from whole cloth, a constitutional abridgement.
In the instant case, the State has taken no action to deprive anyone of a fundamental constitutional right. To the contrary, Secretary of State Hechler has sought to protect Justice McGraw's fundamental constitutional right to stand for election.
There was an attempt in the House of Delegates this year to legislate the very restriction on Justice McGraw's fundamental constitutional right that was sought by the petitioner in this case. Had that measure been enacted, the question of whether the measure was designed to meet a compelling state interest may have presented itself to this Court, because such a law would have abridged Justice McGraw's clear constitutional right to run for office.
But the measure failed. Indeed, the Legislature's failure to pass such legislation is another nail in the coffin of the public policy rationale used by the majority. This seems clear from the reaction to this Court's decision by one of the failed House bill's sponsors:
McGraw's point of view has support from an unlikely corner:
one of the legislators who introduced a bill, spurred by
McGraw's candidacy, to block elected officials from running for
an office in the middle of another term.
I think the decision is ridiculous, said Delegate John Doyle, D-Jefferson.
I don't think you ought to be allowed to do it, but I don't think it is proper for the Supreme Court to concoct a law from whole cloth making it illegal.
The ruling has all the sounds of judge-made law, Doyle said.
The court had to go to New York to find a precedent precisely because there is nothing in West Virginia law to either forbid or permit the practice, he said.
And it should be up to the Legislature or to the voters, via constitutional amendment, to outlaw the practice, not the court, Doyle said.
It's also unclear if Thursday's ruling extends to offices other than that of Supreme Court justice, as the legislation did. The bill, which was sponsored by members of House leadership, passed the House but never came to a vote in the Senate .
March 24, 2000, Charleston Daily Mail.
If the public policy of the State is so clear as to restrict Justice McGraw's candidacy, the Legislature presumably would have passed the measure. Concomitantly, if Justice McGraw's fundamental constitutional rights are to be abridged, it must come from the Legislature or by constitutional amendment, not from this Court. There is no precedent that allows this Court to craft public policy from whole cloth and to abridge a fundamental constitutional right.See footnote 2 2
Where a provision of the Constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed. As stated in Syllabus Point 3 of State ex rel. Smith v. Gore, 150 W.Va. 71, 143 S.E.2d 791 (1965):
Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.
The Constitution clearly and plainly allows a justice to run for a judicial office. West Virginia Constitution, Art. VIII, § 7. There is no exception to this provision; there is simply nothing that can be interpreted to limit a justice's right to run for a judicial office.
Another term on the Supreme Court of Appeals is, obviously, a judicial office. Nothing about the relevant portion of Art. VIII, § 7 is unclear, yet the majority has grafted onto it an exception for justices who already are in office. The majority's action in this case is not an interpretation of Art. VIII, § 7, but an expansion of it.
The Court could not possibly be interpreting the phrase a judicial office because that phrase is clear, and includes the office of Justice of the Supreme Court of Appeals. If it did not, circuit judges like Justice Maynard and myself, who ran for a term on the Supreme Court of Appeals while still sitting as circuit judges, would have been barred from running at that time. Rather than interpreting the provision, the majority is expanding it. Such an expansion is foreign to all precedential rules of constitutional construction.
The Court's decision also completely ignores longstanding precedent from West Virginia and around the nation that requires every reasonable construction in favor of eligibility for office. In State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976), this Court stated that: [i]n the event of ambiguity a constitutional amendment will receive every reasonable construction in favor of eligibility for office.
Thus, even if the majority ignores the overwhelming precedent mandating that the right to run for office can be abridged only by clear and explicit legislation, this Court would have to determine that the provision in question was somehow ambiguous. And if it was ambiguous, then every reasonable construction must be made in favor of eligibility for office.
Obviously, there is no ambiguity to construe, as there was in the case of the law practice requirement for judicial candidates in State ex rel. Haught v. Donnahoe, 174 W.Va. 27, 321 S.E.2d 677 (1984). Even if the petitioner had been able to point to some ambiguity that could conceivably be used to support his position, this Court would be ignoring the law in regard to the presumption of eligibility, if it omits any reasonable construction of the Constitution that would allow a sitting justice to run for a judicial office. Art. VIII, § 7, West Virginia Constitution.
Significantly, the petitioner has never suggested that a construction of Art. VIII, § 7, that allows a sitting justice to run for re-election before the expiration of his present term, is unreasonable.
Indeed, considering the fact that the right to run for office is a fundamental constitutional right and the fact that any ambiguity must be construed in favor of eligibility, such a construction is, at the very least, a reasonable one. It would be a departure from reason and logic and require extraordinary contortions of accepted definitions to find otherwise. The law mandates that this Court ask the question: If the provision is ambiguous, is there any reasonable construction that would allow a sitting justice to run for a separate term on the court? The Constitution specifically allows, without exception, a justice to run for a judicial office. Justice McGraw is a justice, and the two seats open during the 2000 election are both a judicial office.
Or as journalist Tom Miller more vernacularly opined in the April 3, 2000
edition of The Charleston Gazette:
There was some talk -- but not much -- instigated by the governor during the 2000 legislative session about the possibility of electing our Supreme Court justices in a nonpartisan election. Events in recent days prove how transparent that unlikely change would be.
Just as there is nothing more partisan than the nonpartisan county board of education in the state's 55 counties, there would be nothing more partisan in state government than a nonpartisan Supreme Court.
These five people get to make the final decisions on the tough political issues that the two other branches of government can often duck. Next on the table is the constitutional correctness of the $4 billion pension fund bond issue. Maybe the governor and Legislature should ask these folks to solve the Public Employees Insurance Agency funding problem.
Last week, the court decided that gubernatorial candidate Denise Giardina can't have her cake and eat it too. By a 3-2 vote, the court refused to review a lower court ruling that as a member of an independent party, she can't get people who are registered with one of the two major political parties to sign her nominating petitions unless she warns them that this will prohibit them from voting in their own party's primary election in May.
The week before, the court told one of its own, Justice Warren McGraw, he can't run for a 12-year term on the court while he's serving a shorter term. And before that it was the controversial rejection of Gov. Cecil Underwood's appointment of House Speaker Bob Kiss, D-Raleigh, to fill a seat on the court.
These are partisan, political hot potatoes that demand partisan, political decisions. Probably no one among us can agree completely with all three rulings, but who can complain that they dodged the question?
What did the Legislature do about third-party candidates? Last year lawmakers did remove the penalty for signing one of these nominating petitions and then voting in the Democratic or republican primary, but didn't change the section that says it still prohibits this double dipping by voters. Lawmakers also doubled the number of signatures required for third-party nominations for good measure.
And why did a Republican governor appoint a Democrat to the court? For the likely reason that he wanted to curry favor with Democratic voters he needs so desperately in November to win another term, with the hope that it would be rejected so he could then name a Republican to appease his own grumbling GOP ranks.
The partisan labels in the Supreme Court right now may more correctly be business and labor than Democrat and Republican, but partisanship is alive and flourishing. And changing the election labels won't alter those dynamics.
Both academics and journalists agree that a necessary part of the business of judging is deciding difficult political issues. The art of good judging, as I see it (and I think most honest judges would agree), is doing so in a way that properly respects the structure of our democratic, constitutional system.
It is utterly absurd to suggest that judges just apply the law, and do not make decisions that are influenced by their philosophies -- or their prejudices -- the unfortunate term that the majority chooses to use.
For example, my former colleague, Justice Margaret Workman, is (and was while she sat on this Court) strongly prejudiced toward helpless children. And whenever she could, she made judicial choices that favored those children.
Some people thought that Justice Workman sometimes stretched the law to favor children -- and they were probably right. But she never, in my opinion, stretched it beyond the permissible bounds imposed by our constitutional, democratic system.
The majority in this case, I suggest, are certainly bringing their prejudices, or philosophies, to the issues before them. There is nothing wrong with that.
But they are also improperly stretching the law well beyond the limits of our Constitution.
In conclusion, let me step back for a moment from the specific legal reasons
why the majority opinion is wrong.
I personally understand why many people would oppose allowing a sitting justice -- any sitting justice -- to run for a full term before his unexpired term is finished. If the Legislature prohibited such conduct, I might even vote as a judge to uphold such a law. And if I were writing our Constitution, I might support inserting such a clause.
But our Legislature, the elected representatives of our people, declined the opportunity to enact such a law -- just this year! And I am not writing a new Constitution, but applying the one we have.
Under our Constitution, there is only one group of people who have the legal
power to say -- if they want to -- that what Justice McGraw intended to do was a bad idea.
That group is not the ad hoc group of judges in the majority,See footnote 4 4 who have conjured up a phantom restriction out of their own feelings about what seems right to them.
Let me reiterate: The only group of people who have the legal right to say that what Justice McGraw sought to do would be a bad idea are the voters of West Virginia.
The majority opinion unconstitutionally steals the right to choose from the voters of this State. The majority has, in effect, successfully assisted the Hilton Head/Lincoln Navigator crowd in hijacking an election from the Myrtle Beach/pickup truck folks.See footnote 5 5
I therefore dissent.
Before we begin our discussions here today, I feel compelled to make a few
comments on the method this Court was filled to hear this matter. In doing so, I would first
like to back up and share with you how the panel of judges that decided the Kiss case was
First, as a member of this body, I understood the import of the Kiss case. I was shocked when I heard the case had been filed. Personally, I had already been assisting Speaker Kiss to move into what were to be his chambers.
In preparation for selecting acting justices to fill the Kiss Court, I first carefully read the relevant constitutional, statutory, and Supreme Court rules. I next researched the Court records to determine how the filling of open seats on the Court for a particular case had been done in the past . . . and then I took the matter to the full Court -- with all five justices participating -- to discuss the process to be used in filling the Court.
One of my concerns was that I did not want my legacy on this Court to be that I packed the Court to achieve a political end. I told the other members of the Court that I proposed to fill the Court with one retired justice and one sitting judge. I further advised the Court that I would ask all retired justices whether they would serve, if asked -- we had three in West Virginia at the time -- with Justice Caplan residing in Florida.
I next told the Court that I would try to select a sitting judge of stature who had not originally been a member of the Legislature and who had achieved his/her office by appointment (part of the issue in the Kiss case), and who was a judge that was not a particularly close friend of mine. Quite frankly, I had in mind Retired Justice Thomas McHugh and sitting Judge (former Justice) Arthur Recht.
Mind you, time was of the essence in the Kiss case as it is in this matter. So, my first round of telephone calls was made to the retired justices living in West Virginia. I initiated each of my conversations with an admonishment to Please do not tell me if you have any preliminary thoughts about the case -- I only want to know if you are available to serve, should I ask you. Two said they were available; one said that he felt that he was disqualified based on his current law practice.
I quickly asked Retired Justice Miller to sit and he accepted. This, in my mind, then eliminated Judge Recht as the sitting judge because both he and Justice Miller are from Wheeling, and, at one time, they worked together in the same law firm -- I believe. So, I thought back to the discussion we had when I originally took the matter to the Court. One consideration I heard was: Why not someone from south of Route 60? That comment was strongly stated by two members of the Court when I had taken the matter to conference.
I got out the list of our circuit judges -- called one who resides in the heart of our coal fields . . . he declined. Called another from a southern county who said he had a conflict because his daughter was an attorney who worked in the same law firm as did Speaker Kiss, and I received a third rejection from another southern judge. I did another review of the list of judges, still knowing that I needed to act quickly.
I then set the matter aside and began reviewing our next week's docket. There were two cases on the docket from which I was disqualified because they were from my home circuit and I had been involved in them as a circuit judge prior to coming on the Court. Acting Chief Justice Maynard had appointed Judge Clarence Watt to sit on those cases in my place.
So, I said to myself . . . Judge Watt is our most senior judge in age, he does live south of Route 60 (Hurricane), and he has been a judge for over 20 years. And, I found out that had served 12 years as a prosecuting Attorney. I had never previously appointed Judge Watt to sit on the Court. I inquired of his availability, and the rest is history.
Now let me say a few words about how the panel was selected in this [Carenbauer]
case. I was never, even for a split second, consulted or advised of the process by which the
acting justices were selected, or who might serve on the Court. I simply had orders laid on
my desk, after the fact.
I do hold each of the circuit judges appointed to sit on this panel [Judges Fox, Jolliffe, and Keadle] in high esteem, and in no way do I question their ability or personal qualifications to sit. But it should be noted that two of the circuit judges sitting here today were appointed by a chief justice, who is either ineligible, or simply refuses, to sit on the very matter to which he made the appointments. The third was appointed by Acting Chief Justice Scott, after Chief Justice Maynard recused himself. The first I knew who would be filling the original two empty seats was when my office was presented a copy of the appointment order. Information about the third appointment took a twisted trail.
On Tuesday, March 14, I received on my desk a lengthy memorandum from Chief Justice Maynard saying that he was not recusing himself in the matter based on Justice McGraw's second recusal motion. Even though the memo was dated March 7, the filing date in the Clerk's Office was March 13, the day before I received it. At that point I assumed Chief Justice Maynard was sitting on the case. About 2:00 in the afternoon of the same day, there was a rumor running through the halls that the Chief Justice was not going to be sitting on the case, and almost simultaneously I was provided a copy of an order whereby Acting Chief Justice Scott appointed Judge Keadle in his stead. I called Justice Scott on the phone and asked him what was the basis for that action since the latest memorandum I had received advised me that the Chief Justice was remaining on the case, and notice that his intention to remain on the Court had been filed in the Clerk's office only the day before.
Justice Scott advised me that the Chief had changed his mind and was recusing himself, and that I should have received a copy of his memorandum stating his reasons. In fact, my office had never received a copy of such memorandum. I requested it from the Clerk's office, it was provided, and in less than half an hour later another copy was provided from the Chief Justice's office.
My concern for this panel is that we have two acting justices who are now sitting on
this Court who were appointed by an either ineligible Chief Justice, or one who refuses to
sit in the matter. I do not believe a judge or justice can simply refuse to sit on a case. We
are either eligible and have a constitutional obligation to perform our duty, or we are
ineligible, and therefore should take no action in the case whatsoever.
Quite frankly, I would personally like very much not to be sitting on this case. I see myself as a loser either way. I have a good friend who is a candidate for the same office for which two of my colleagues are now candidates. If I rule against my colleagues, it's uncomfortable. If I rule against my friend it will be equally uncomfortable, but I will have to do one or the other.
This case is, to a great extent, a political case -- whether we want to say so or not. And, the process used to fill this Court being less than squeaky clean may very well magnify public skepticism about its fairness.
Therefore, in closing, I simply want to say the same thing that I said in the Kiss matter when it was presented to the Court. If you agree with the decision of this Court, you will likely herald the decision as brilliant, scholarly work; but if you disagree, you will view it as simply more political shenanigans.
John Phillip, An American Judge: Marmaduke Dent of West Virginia, New York
University Press, 1968, p.64. Judge Dent wrote in Hartigan, in dissent:
For reasons known only to themselves my associates denied me knowledge and inspection of their opinion and syllabus until after it was handed down, or became public property. This is a matter of judicial courtesy or ethics, and, as a learned judge has said that courtesy is a mere matter of taste, about which there is no disputing, and from which there is no appeal since dueling has been abolished, every judge has the right to treat his confrères as he sees proper, according to his inward consciousness and outward experience. Not having been admitted to their exclusive consultations over nor been made aware of their written conclusions until after given to the public, I deem it my duty to review these conclusions, as some of them appear to me to be plainly violative of the true principles of law and justice, and the opinion as a whole to be evasive, inconclusive, and unsatisfactory as an exposition of sound law, although an admirable paper for other purposes.
49 W.Va. at 51, 38 S.E. at 714. Perhaps the majority's conduct was right in Judge Dent's case, but I do not believe it was right in the instant case.
Speech that attacks the Child Online Protection Act, Gambling Advertising Regulations, Bank Disclosure Regulations, Civil Rights Investigations, FDA Drug Advertising and Labeling Regulations, Election Campaign Expenditure Regulations, and Workplace Harassment Laws. See http://fed.soc.org/topten-freev3i1.htm.