State Ex Rel. Maloney v. McCartney

223 S.E.2d 607, 159 W. Va. 513

• Court: West Virginia Supreme Court
• Decided: April 22, 1976
• Docket: 13697
• Status: Published

Opinions

Neely, Justice:

This action in mandamus was brought to challenge the right of the respondent incumbent Governor to seek a third consecutive term as Chief Executive of this State. In November 1968 His Excellency the Governor of West Virginia, Arch A. Moore, Jr., was elected to his first term as Governor under W. Va. Const., Art. VII, §4 which provided:

.. The Governor shall not be eligible to said office for the four years next succeeding the term for which he was elected.”¹

In November 1970 the people of this State ratified an amendment to that section known popularly as the “Governors Succession Amendment” which provides in relevant part as follows:

“... A person who has been elected or who has served as governor during all or any part of two consecutive terms shall be ineligible for the office of governor during any part of the term immediately following the second of the two consecutive terms. The person holding the office of governor when this section is ratified shall not be prevented from holding the office of governor during the term immediately following the term he is then serving.”

In November 1972 the Governor was reelected to a second term as Chief Executive, and in February 1976 the Governor filed his certificate of candidacy and paid his filing fee in the office of the respondent Secretary of State in order to have his name placed on the ballot for the May 1976 Republican primary election. This action in mandamus was brought by Melton H. Maloney, also a candidate for the Republican Party nomination for Governor.

The Court holds that the applicable canon of constitutional construction in this case is that where a constitutional provision is plain and unambiguous it will be applied and not construed. As there is no provision of the Constitution of the United States in conflict with West Virginia’s Art. VII, § 4 limitation on succession, and as there is no rule of constitutional construction which requires other than a straight-forward application of the constitutional provision in question, we hold that the Governor is ineligible to succeed himself during the term beginning January 1977 and that the writ of mandamus be awarded.

The respondent Governor presents two scholarly and sophisticated arguments in defense of his eligibility for reélection to a third term. The first and most complex proposition is that the Governors Succession Amendment violates § 1 of the Fourteenth Amendment to the Constitution of the United States by denying equal protection of the laws to those persons who would wish to elect Arch A. Moore, Jr. as Governor for a third successive term. The Governor’s second argument is that Art. VII, § 4 is patently and latently ambiguous and, therefore, that the ambiguity under proper canons of constitutional construction must be strictly resolved in favor of prospective application and the incumbent’s eligibility to seek reélection. In addition to the Governor’s two defenses on the merits, he further asserts that Art. VII, § 4 was improperly adopted because of an error in the legislative journal, and that this action in mandamus is improper because the Secretary of State has performed all ministerial duties required of him by the Code.

I

The Governor asserts that the Fourteenth Amendment to the Constitution of the United States prohibits restrictions upon eligibility for public office that tend to deny any group of citizens the effective exercise of their franchise. In support of this proposition the Governor cites Bullock v. Carter, 405 U.S. 134, (1972); Dunn v. Blumstein, 405 U.S. 330, (1972); and, Thompson v. Mellon, 9 Cal. 3d 96, 507 P.2d 628 (1973). This Court agrees that any restriction upon eligibility for office which exists for the purpose of limiting the franchise of any substantial group of citizens is inherently unconstitutional. However, we also recognize a distinction between incidental limitations on the franchise attendant upon the accomplishment of a valid public purpose and limitations which have no effect other than simple restrictions of the franchise. Incidental limitations on the franchise are those which restrict its exercise only with regard to office seekers who fail to meet objective qualifications, established on a rational basis, in a valid attempt to insure wisdom, dignity, responsiveness, and competence in public officials. Examples of this type of limitation include requirements that candidates be of a certain age, not be under conviction for a felony, or be members of the bar.

Constitutional restrictions circumscribing the ability of incumbents to succeed themselves appear in over twenty state constitutions,² and exist in the Twenty-second Amendment to the Constitution of the United States with regard to the Presidency. The universal authority is that restriction upon the succession of incumbents serves a rational public policy and that, while restrictions may deny qualified men an opportunity to serve, as a general rule the over-all health of the body politic is enhanced by limitations on continuous tenure. Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595, cert. den. 397 U.S. 149 (1970).

The reasons for limitations upon the right of incumbents to succeed themselves have their origin in the political structure of yesteryear when direct access by candidates to voters was circumscribed by poor communications, illiteracy, and indifference. The power of incumbent officeholders to develop networks of patronage and attendant capacities to deliver favorably disposed voters to the polls raised fears of an entrenched political machine which could effectively foreclose access to the political process. Consequently, while a political party, a political philosophy, or even countless thousands of appointed governmental executives and employees could continue from administration to administration, it was thought that regular changes in the chief executive would stimulate criticism within political parties for the purpose of attracting attention to the individual aspirants for chief executive and would stimulate competition among political parties by providing occasions on which entrenched machines would be so disrupted by internecine strife as to insure a meaningful, adversary, and competitive election. Maddox v. Fortson, supra.

In addition it has long been felt that a limitation upon succession of incumbents removes the temptation to prostitute the government to the perpetuation of a particular administration. Gorrell v. Bier, 15 W. Va. 311 (1879). While elections are won by 51% of the vote, all of the people of a state must be served. Meretricious policies which sacrifice the well-being of economic, social, racial, or geographical minorities are most likely where a political figure, political party, or political interest group can rely upon electorate inertia fostered by the hopelessness of encountering a seemingly invincible political machine.

The cases cited by the Governor in support of his position all involve restrictions on the franchise which apparently existed for no purpose other than to restrict the franchise. For example, in Bullock v. Carter, supra, the plaintiff challenged the validity of a Texas statutory scheme which, without write-in or other alternative provisions, required payment of fees ranging as high as $8,900 in order to obtain a place on the Democratic primary ballot. Under the Texas statute, the party committees estimated the total cost of primary elections and apportioned that cost among candidates according to the importance, emolument, and term of office. The United States Supreme Court held that where the Texas statute imposed filing fees of such magnitude that numerous qualified candidates were precluded from filing, and where the fees fell with unequal weight on candidates and voters according to their ability to pay, voters were denied equal protection because it was not reasonably necessary to so restrict access to office in order to accomplish the alleged state objective of paying the costs of elections. In the case sub judice a contrary situation exists in that the State does have a rational interest in avoiding political entrenchment and the means chosen, i.e., limitations on successions, are reasonable.

In the case of Dunn v. Blumstein, supra, Tennessee required that voters be residents of the State of Tennessee for one year and of the county in which they sought to register for three months as prerequisites to registration to vote. The Supreme Court held that absent a compelling state interest, Tennessee could not burden the right to travel by penalizing bona fide residents of Tennessee who had recently traveled from one jurisdiction to another. The Court held that a period of thirty days was ample to prevent fraud, and adequate means other than an unreasonable residency requirement were available to the state to determine bona fide residence. In Dunn Tennessee had not established a sufficient relationship between its interest in an informed electorate and the fixed durational residency requirement.

In the case of Thompson v. Mellon, supra, the Supreme Court of California held that a provision in a city charter providing for a two-year residence requirement for candidates for city office was unconstitutional because there was no rational relationship between the residence requirement and any legitimate state interest.

The Governor has not cited, nor has this Court found, any United States Supreme Court case even arguably on point holding a limitation on incumbent succession contrary to the Fourteenth Amendment to the Constitution of the United States. While this Court can and must find provisions of the Constitution of the State of West Virginia invalid when they are in direct conflict with any provision of the Constitution of the United States, the authority for such a holding must be clear and compelling. Absent clear and compelling authority this Court is bound by oath to support every provision of the Constitution of the State of West Virginia. See, dissenting opinion of Judge Haymond, Lance v. Board of Education, 153 W. Va. 559, 574, 170 S.E.2d 783, 791 (1969), rev’d sub nom. Gordon v. Lance, 403 U.S. 1 (1971).

Although the incidental effect of restrictive anti-succession provisions may be a limitation on the franchise, in a balancing test which weighs the enlargement of the franchise by guaranteeing competitive primary and general elections against the incidental disenfranchisement of those favorably disposed to one individual, the Court must conclude that restrictive provisions on the succession of incumbents does not frustrate but rather furthers the policy of the Fourteenth Amendment. See, Williams v. Rhodes, 393 U.S. 23 (1968); Comment, “The Emerging Right to Candidacy in State and Local Elections: Constitutional Protection of the Voter; The Candidate and the Political Group.” 17 Wayne L. Rev. 1543 (1971).

II

The Governor asserts that W. Va. Const., Art. VII, § 4 is ambiguous and, therefore, it should receive every reasonable construction of its ambiguity in favor of eligibility and against retroactive application. Retroactive application of new statutes and constitutional amendments is not favored by the courts, and they will not be construed as retroactive unless by clear and express language or necessary implication indicating that they were intended to apply retroactively. 2 Sutherland Statutory Construction (Sands, 4th Ed.), §41.04 p. 252.³

This Court agrees that were the constitutional section in question ambiguous, it would be necessary to construe it most strongly in favor of eligibility and against any retroactive effect. We find, however, no such ambiguity.

The Governor argues that if he had finished his 1968 term in 1972 under the old Art. VII, § 4, he would not have been eligible for election in 1972, but would have been eligible for election in 1976. Accordingly, the Governor argues that since he would have been eligible for election in 1976 strict construction makes it retroactive in its application to him. The Governor asserts that the framers provided the following third sentence to the Governors Succession Amendment,

“The person holding the office of governor when this section is ratified shall not be prevented from holding the office of governor during the term immediately following the term he is then serving.”

exclusively to provide for the 1972 election and not to foreclose the Governor from running in 1976, a term for which he would otherwise have been eligible.

Unless repugnant to the Constitution of the United States, the voters of a state may amend their constitution in any way they choose and by such amendment may impose any reasonable method of election and any reasonable restriction on eligibility to hold office. Fortson v. Morris, 385 U.S. 231 (1966). While it is true that constitutions should be construed to avoid retroactive effects, the electorate may nonetheless achieve retroactive effects by clear and unambiguous language. Cooley’s Constitutional Limitations (8th Ed.), Vol. I, pp. 136-7.

In the case under consideration the electorate chose to change the terms upon which an incumbent governor could succeed himself and by the third sentence of the Governors Succession Amendment specifically provided that the incumbent was to be afforded the benefit of the more liberal succession provision of the Amendment. Without the third sentence of the Amendment, under proper rules of constitutional construction, the incumbent would have been entitled to succeed himself in 1972; however, to avoid the uncertainty of court litigation the framers saw fit to set that proposition forth in clear and unambiguous language.

In 1972 the Governor had an option either to succeed himself in 1973 or to forbear from running for governor that year and avail himself of the opportunity to run again in 1976. It appears to this Court that this is what the electorate intended; there, is no precedent to the contrary anywhere in the United States. For example, in the case of Kneip v. Herseth, 214 N.W.2d 93 (S.D. 1974), cited by the Governor in support of his position, the South Dakota Constitution originally provided for two-year gubernatorial terms without limitation on the number of terms. In 1972 the Constitution was amended to provide for four-year terms beginning in 1974, but limited the gubernatorial tenure to two successive terms. Although Kneip had served two consecutive terms as governor before 1974, the Supreme Court of South Dakota held that he was entitled to run for reélection to a four-year term in 1974, the effective date of the new Amendment. This Court finds no parallel between Kneip v. Herseth, supra, and the case currently before us. In Kneip the constitutional limitation on two successive terms was exclusively prospective, as was the expansion of the term from two to four years. In the case of Governor Moore, the Governor could not have succeeded himself in 1972 without the Governors Succession Amendment.

While our constitutional provision says “A person who has been elected or who has served as governor during all or any part of two consecutive terms ..the constitutional provision in Kneip specifically provided “Commencing with the 1974 general election, no person shall be elected to more than two consecutive terms as governor ....” If the West Virginia Constitution had added the words “commencing in the 1972 general election” to our constitutional provision, the provision would have been ambiguous and like the Supreme Court of South Dakota we would have been compelled to resolve ambiguity in favor of eligibility. However that is not the case.

The Governor makes numerous other arguments based upon linguistics in an effort to establish ambiguity in Art. VII, § 4. While these arguments are scholarly, their recitation here would be superfluous as the Court finds no ambiguity. As this Court said in Charleston Transit v. Condry, 140 W. Va. 651, 659, 86 S.E.2d 391, 396 (1955):

“... a Constitution should be applied by the courts according to the common understanding and everyday requirements of life, since the people who voted for it must have so understood it.”

Ill

The Governor has submitted to this Court a certified copy of the official journal of the House of Delegates for the Regular Session 1970 and directs the Court’s attention to pages 341-42 concerning the proceedings of January 30, 1970, which reflect the final action taken on House Joint Resolution No. 4, the Governors Succession Amendment. On page 342 the resolution is printed in its entirety and the relevant section reads as follows:

“... A person who has been elected or who has served as governor during all or any part of two consecutive terms shall be eligible for the office of governor during any part of the term immediately following the second of the two consecutive terms ..[emphasis supplied by Court]

A certified copy of the official journal of the Senate for the Regular Session 1970, at pages 715-16 which reflect the proceedings on February 9, 1970, demonstrates that the Senate passed engrossed House Joint Resolution No. 4 with the word “ineligible” in place of the word “eligible” as it appeared in the House Journal quoted above.

The Governor asserts that as there were no amendments to House Joint Resolution No. 4 in the Senate, the resolution was passed in two different forms by the respective houses of the Legislature in violation of W. Va. Const., Art. VI, § 31. Although there is no question that Art. VI, § 31 mandates that a bill or joint resolution pass both houses in the same form, the Court is not persuaded that a mere typographical error in the printing of one journal requires invalidation of an otherwise regular action of the Legislature. While in the absence of ambiguity this Court will not go behind the journals of the respective houses, in this case there is abundant extrinsic evidence that House Joint Resolution No. 4 was passed in the same form by both Houses in compliance with W. Va. Const., Art. VI, § 31. Extrinsic evidence may be used to determine the constitutionality of an action of the Legislature. State ex rel. Hecks Discount Centers v. Winters, 147 W. Va. 861, 132 S.E.2d 374 (1963).

It appears that engrossed House Joint Resolution No. 4 as received by the Senate contained the word “ineligible” and that when Resolution No. 4 was printed in the official Acts of the Legislature, Regular Session 1970, the word “ineligible” was used. In Chapter 24, Acts of the Legislature, Regular Session 1970, the proposed constitutional amendment appears verbatim using the word “ineligible” and it was this bill which was approved by the respondent Moore in his capacity as Governor and placed on the ballot. It further appears that when the resolution was published for the voters pursuant to Chapter 23, Acts of the Legislature, Regular Session 1970, that the word “ineligible” was used and that the people of the State in ratifying the Governors Succession Amendment fairly and clearly understood that the word “ineligible” was used with regard to succession.

It is clear from the above discussion that the discrepancy in the House Journal with regard to the substitution of the word “eligible” for the word “ineligible” was exclusively a typographical error. To hold that the entire Governors Succession- Amendment was- illegally adopted and, consequently, null and void would place every act of the Legislature or amendment to the Constitution at the mercy of secretaries, typesetters, and proof readers. The law does not contemplate such an absurd result. State ex rel. Morgan v. O’Brien, 134 W. Va. 1, 60 S.E.2d 722 (1948); Constitutional Prohibitory Amendment, 24 Kan. 700 (1881).

IV

Finally the Governor asserts that the writ of mandamus in this action was improvidently awarded because the Secretary of State had performed all ministerial duties with which he was charged in the Code. The Governor demonstrates that our rule to show cause was issued February 26, 1976, several days before the Secretary of State was required by W. Va. Code, 3-5-9 [1964] to certify candidates who had filed certificates with him and who were entitled to have their names printed on the electoral ballots. W. Va. Code, 3-5-9 [1964] provides in relevant part:

“During the week next following the last Saturday of February next preceding the day fixed for the primary election, the secretary of state shall arrange the names of all candidates, who have filed announcements with him, as provided in this article, and who are entitled to have their names printed on any political party ballot, in accordance with the provisions of this chapter, and shall forthwith certify the same under his name and the lesser seal of the State, and file the same in his office.”

The Court admits that the week next following the last Saturday in February in the year 1976 occurs after this Court’s issuance of the rule to show cause.

While this action was technically brought in mandamus, it is not circumscribed by the technical rules which ordinarily govern mandamus in West Virginia. The glory of the Anglo-American common law is its capacity to respond to new and unforeseen circumstances by the adaptation of old forms of action to new and changing conditions.⁴ A consistent line of decisions of this Court during the last fifteen years clearly recognizes that the intelligent and meaningful exercise of the franchise requires some method of averting a void or voidable election. Consequently this Court has recognized that some form of proceeding must be available by which interested parties may challenge in advance of a primary or general election the eligibility of questionable candidates in order to assure that elections will not become a mockery. While we have not previously encountered a case in which the eligibility of a state-wide candidate has been challenged prior to a primary or general election, there is ample precedent that an action in mandamus will lie against the Clerk of the Circuit Court of a county in a local election to determine the eligibility of a prospective candidate.⁵ By analogy it should be inherently obvious that a similar action will lie against the Secretary of State in a state-wide contest.

The Court recognizes that the Secretary of State is not charged by W. Va. Code, 3-5-9 [1964] with judicial duties; however, he is charged with certifying only those persons who are “entitled to have their names printed on any political party ballot.” The Code provision does not set forth how the Secretary of State shall determine entitlement, but it may be reasonably inferred that the Secretary should refuse to place on the ballot any person whose certificate of candidacy shows ineligibility on its face. Furthermore, we believe that in the case of an open and notorious disqualification for office such as a filing certificate tendered by a seven year old child, the Secretary of State would similarly be entitled to decline to have the individual’s name printed on the ballot. As the Secretary of State accepted the certificate of candidacy and filing fee of the Governor, the question of the extent to which the Secretary of State should go behind a certificate of candidacy is not fairly raised.

Instead of attempting to reconcile our actions with regard to this type of proceeding with traditional rules governing mandamus, we feel it preferable to admit frankly that the public interest in open and fair elections demands a special rule with regard to determining the eligibility of candidates in advance of an election. Accordingly we hold that whenever a state-wide candidate has filed a certificate of candidacy with the Secretary of State, any person with standing to challenge the candidate’s eligibility may raise such challenge through an action in mandamus, without regard to the statutory times provided to the Secretary for certain ministerial acts. We arrive at this conclusion in order to achieve as expeditious a resolution of the controversy as possible because of the limited time available for the printing of ballots and campaigning by other candidates.

Tangentially the Governor complains that he was made a party respondent in the initial mandamus action by Mr. Maloney against the Secretary of State and that he was not a proper party and should not have been served with a rule to show cause. The Court finds no objection to the innovative procedure of joining the real party in interest initially in a mandamus proceeding of this type. As the Governor was obviously the real party in interest, it was appropriate to join him in the first instance and thereby save the delay attendant upon a petition to intervene, consideration of that petition, and an order permitting intervention.

For the foregoing reasons the Writ of Mandamus for which the relator prays is awarded.

Writ awarded.

1 This section was adopted at the election following a joint resolution proposed on February 15, 1901, Acts of the Legislature 1901, p. 460. The relevant portion of the section, prior to the 1901 amendment, read: “... The Governor shall be ineligible to said office for the four years next succeeding the term for which he was elected.”

2 See, for example, Constitution of Florida, Art. IV, §5; Constitution of Pennsylvania, Art. IV, §3; and, Constitution of Virginia, Art. V, §1.

3 See also, Smead, “Rule Against Retroactive Legislation,” 20 U. of Minn. L. Rev. 775, 780-1 (1936): “The United States Supreme Court has stated expressly that retrospective legislation would not be favored, that such laws were contrary to American jurisprudence, and that the court, in the absence of an express command or ‘necessary implication’ to the contrary, will presume that the law is designed to act prospectively.”

4 This evolutionary process in the common law was recognized as early as the reign of Henry II. “As yet the king is no mere vendor, he is a manufacturer and can make goods to order. The day has not yet come when the invention of new writs will be hampered by the claims of a parliament.” I Pollack & Maitland, The History of English Law, (2d ed., 1898), p. 151. Evolution continued through the reign of Henry III. “A comparison of a collection of formulas which Henry III sent to the Irish chancery in 1227 with Glanvill’s treatise shows us that the number of writs which were to be had as of course, had grown with the intervening forty years. A new form of action might be easily created. A few words said by the chancellor to his clerk — ‘Such writs as this are for the future to be issued as of course’ — would be as effectual as the most solemn legislation.” Id. at 171. With the proliferation of the number and types of writs issued during Henry Ill’s reign, an attempt was made by Henry to record them in a “register of original writs;” however, “[n]o finality was as yet ascribed to the register; it was not regarded as an exhaustive scheme of justice to which no addition could be made save by definite legislation, though a common form, when once settled, was not to be lightly tampered with. New writs could be made, at all events, if they were ‘personal,’ not ‘real’ — any innovation ‘touching freehold’ was a more serious matter — and they were made womewhat freely.” Id. at 196. Edward I halted the outgrowth of original writs by requiring legislative action. By the time of Edward’s death, “[t]he subsequent development of forms will consist almost entirely of modifications of a single action, namely, Trespass, until at length it and its progeny — Ejectment, Case, As-sumpsit, Trovers, — will have ousted nearly all the older actions. This process, if regarded from one point of view, represents a vigorous, though contorted, growth of our substantive law ....” Id. at 564.

5 Adams v. Londeree, 139 W. Va. 748, 83 S.E.2d 127 (1954); State ex rel. Ziekefoose v. West, 145 W. Va. 498, 116 S.E.2d 398 (1960); State, ex rel. Duke v. O’Brien, 145 W. Va. 600, 117 S.E.2d 353 (1960); State ex rel. Cline v. Hatfield, 145 W. Va. 611, 116 S.E.2d 703 (1960); State ex rel. Summerfield v. Maxwell, 148 W. Va. 535, 135 S.E.2d 741 (1964); State ex rel. Brewer v. Wilson, 151 W. Va. 113, 150 S.E.2d 592 (1966); State ex rel. Dostert v. Riggleman, 155 W. Va. 808, 187 S.E.2d 591 (1972).