State ex rel. West Virginia Citizen Action Group v. Tomblin

715 S.E.2d 36, 227 W. Va. 687, 2011 W. Va. LEXIS 9
West Virginia Supreme Court·Decided January 18, 2011·No. Nos. 101494, 10-4004·Published·Cited by 2 cases

Opinion

BENJAMIN, Justice:

In this original jurisdiction action, the petitioners seek a writ of mandamus compelling the respondents to call a special election as soon as practicable in 2011 to fill the vacancy in the office of governor created on November 15, 2010, when former Governor Joe Manchin, III, resigned from that office to assume the office of United States Senator. Petitioners herein are the West Virginia Citizen Action Group,1 Thornton Cooper,2 and Kenny Perdue,3 as President of the West Virginia AFL-CIO. Respondents are Earl Ray Tomblin as Senate President and in his capacity in fulfilling the constitutional role to act as governor during the current vacancy, Richard Thompson as Speaker of the House of Delegates, and Natalie E. Tennant as Secretary of State.4

After careful consideration of the parties’ pleadings and oral arguments, as well as the briefs of amici curiae, and the applicable law, and for the reasons that follow, this Court denies the writ of mandamus requested by the petitioners with regal’d to Respondent Thompson and Respondent Tennant. We grant the petition with regard to Respondent Tomblin, and we direct Respondent Tomblin, in fulfilling his role to act as governor during the current vacancy, to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with. W. Va. Const, art. VII, § 16 and W. Va.Code § 3-10-2 (1967).

I.

FACTS

The facts of this case as represented by the parties are brief and undisputed. Former Governor Joe Manchin, III, was elected to a second four-year term of office at the general election on November 4, 2008. That term began on January 19, 2009, and is scheduled to end on January 14, 2013.

On June 28, 2010, United States Senator Robert C. Byrd passed away. A special election to fill the Senate vacancy created as a result of Senator Byrd’s death was held on November 2, 2010, and former Governor Manchin was elected to fill the Senate vacancy-

On November 15, 2010, former Governor Manchin resigned as governor and was sworn in as United States Senator. His resignation created a vacancy in the office of governor. On the same day that former Governor Manchin resigned, State Senate President and Respondent herein, Earl Ray Tomblin, began to act as governor pursuant to W. Va. Const, art. VII, § 16 and W. Va.Code § 3-10-2.

A question thereafter arose with regard to when a new statewide election must be held under our law to fill the vacancy in the office of governor. The next general election will be held in November 2012. The petitioners seek a writ of mandamus to compel the holding of a new election as soon as practicable in 2011. This Court subsequently issued a rule [692]*692to show cause returnable before this Court for oral argument to be heard on January 11, 2011.

The sole issue before this Court is narrow and straightforward-when, under our law, shall a statewide public election take place to fill the current vacancy in the office of governor?

II.

STANDARD OF REVIEW

The petitioners in this case seek a writ of mandamus. This Court has explained that the purpose of mandamus is to enforce “an established right” and a “corresponding imperative duty created or imposed by law.” State ex rel. Ball v. Cummings, 208 W.Va. 393, 398, 540 S.E.2d 917, 922 (1999) (citation omitted). In determining the appropriateness of mandamus in a given case, our law is clear that

A writ of mandamus will not issue unless three elements coexist — (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.

Syllabus Point 2, State ex rel. Kucera v. Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). This Court will consider the question before us in light of these principles.

III.

DISCUSSION

This case rests upon the interpretation of a provision of our state constitution and a statute. The applicable constitutional provision is W. Va. Const., art. VII, § 16, which provides:

In case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the president of the senate shall act as governor until the vacancy is filled, or the disability removed; and if the president of the senate, for any of the above named causes, shall become incapable of performing the duties of governor, the same shall devolve upon the speaker of the house of delegates; and in all other eases where there is no one to act as governor, one shall be chosen by joint vote of the legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy.

(Emphasis added.) The applicable statute is W. Va.Code § 3-10-2, the relevant portion of which provides:

In case of the death, conviction or impeachment, failure to qualify, resignation or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled or the disability removed; and if the president of the Senate, for any of the above-named causes, shall be or become incapable of performing the duties of governor, the same shall devolve upon the speaker of the House of Delegates; and in all other cases where there is no one to act as governor, one shall be chosen by the joint vote of the Legislature. Whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy. If the vacancy shall occur more than thirty days next preceding a general election, the vacancy shall be filled at such election and the acting governor for the time being shall issue a proclamation accordingly, which shall be published prior to such election as a Class II — 0 legal advertisement in compliance with the provisions of article three [§§ 59-3-1 et seq.], chapter fifty-nine of this code, and the publication area for such publication shall be each county of the state. But if it shall occur less than thirty days next preceding such general election, and more than one year before the expiration of the term, such acting governor shall issue a proclamation, fixing a time for a special election to fill such vacancy, which shall be published as hereinbefore provided.

(Emphasis added.)

It is the position of the petitioners that the new election mandated by art. VII, § 16 of the Constitution must occur as soon as is [693]*693practicable in 2011. According to the petitioners, art.

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State ex rel. West Virginia Citizen Action Group v. Tomblin, 715 S.E.2d 36, 227 W. Va. 687, 2011 W. Va. LEXIS 9 (W. Va. 2011).

715 S.E.2d 36 (State ex rel. West Virginia Citizen Action Group v. Tomblin) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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