State of W.Va. ex rel. Biafore v. Earl Ray Tomblin

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W.Va. Code § 3-10-5 (2013) (emphasis added). While the Court need not consider the

legislative history of this unambiguous statute,1 such history makes clear that the statute

accommodates, and specifically contemplates, the issue presented.

When West Virginia Code § 3-10-5 was enacted in 1863, and for the following

sixty years, there was no reference to political party affiliation because any vacancy in the

state senate that occurred during that period was filled through a “writ of election.”2 In 1925,

the statute, then codified as West Virginia Code Chapter 4, §7, was amended and revised to

create separate procedures for filling vacancies in the state senate depending upon whether

1

See Boatwright, 184 W.Va. at 29, 399 S.E.2d at 59 (quoting Cooper v. Tazewell

Square Apartments, Ltd., 577 F.Supp 1483, 1487 (W.D.Va.1984), rev’d on other grounds,

606 F.Supp. 1397 (W.D.Va.1985)) (“When the statute is unambiguous on its face, there is

no real need to consider its legislative history.”).

2

A writ of election to fill a vacancy in the legislature shall

be issued by the governor when the vacancy occurs during the

recess of the legislature, and by the president of the senate or

speaker of the house of delegates, as the case may be, when such

vacancy happens during the session, or has not been previously

filled. The said writ shall be directed to the sheriff of the proper

county, or to the sheriffs of the several counties included in the

delegate or senatorial district, as the case may be, and shall

prescribe the day of election; and every sheriff, on receiving the

same, shall immediately give notice thereof to the supervisors

and inspectors of election of the several townships of his county;

and shall also cause notice of the same to be conspicuously

posted at every place of voting in such county, and to be

published in the newspapers, if there be any, printed therein.

1863 W.Va. Acts 127.

2

the departing senator died, or left office by resignation or some other means. When the

vacancy was the result of death, we see the first mention of political parties:

Whenever a vacancy in the legislature shall occur by the

death of a member of the senate, the clerk of the circuit court

from which county said senator resided at the time of his

election shall immediately notify the chairman and secretary of

the senatorial executive committee of said senatorial district of

the political party of which said member of the legislature

belonged, of such vacancy, . . . and it shall be the duty of

senatorial executive committee to name a person duly qualified

under the law to fill the vacancy, and the person so named by the

senatorial executive committee shall be a member of the same

political party to which the former senator belonged and from

the county in which he resided at the time of his election, and it

shall be the duty of the chairman and secretary of the senatorial

executive committee to immediately certify to the governor of

the state of the act of the meeting naming a person for the

vacancy, and the governor of the state then shall appoint such

person to fill such vacancy until a senator is elected at the next

general election and has qualified. . . .

W.Va. Code § 4-7 (1925) (emphasis added); see also 1925 W.Va. Acts 176.3 Although the

political party language was added in 1925, presumably because vacancies would now be

filled by appointment, as opposed to the previously required writs of election, the legislature

did not at that time include any temporal language with regard to the “political party of which

said member of the legislature belonged[.]”

3

When the vacancy occurred by “resignation or otherwise than by death,” the vacancy

continued to be filled through a “writ of election.” W.Va. Code § 4-7 (1925).

3

During the recodification of the West Virginia Code in 1931, the subject statute

was redesignated as West Virginia Code § 3-10-6, and provided the following temporal

component regarding party affiliation that has remained to this day:

Any vacancy in the office of state senator . . . shall be

filled by appointment by the governor, in each instance from a

list of three legally qualified persons submitted by . . . the party

executive committee of the state senatorial district in the case of

a state senator, of the party with which the person holding the

office immediately preceding the vacancy was affiliated . . . .

W.Va. Code § 3-10-6 (1931) (emphasis added).4 Although legislative history in West

Virginia is minimal, at best, the 1931 Code contains “Revisers’ Notes.” For this particular

statute, the Revisers’ Note commented on the filling of a vacancy in the legislature by

appointment, noting that a special election to fill such a vacancy “would incur an

unjustifiable expenditure of public funds.” Id. The Revisers’ Note also references the fact

that the “the appointment [will now] be made from a list of three submitted by . . . the party

executive committee of the state senatorial district, as to a state senator[.]” (Emphasis added).

This was a change from the statute as it existed in 1925, which provided for the senatorial

4

Available legal resources reveal that there are no bound volumes of the West Virginia

Code for the years 1926 through 1930. There are, however, bound copies of the Report of

the Revision and Codification Commission published in 1927, 1928, and 1929. This

Commission was appointed pursuant to a legislative act passed in 1921, entitled “An Act

providing for the revision, codification and indexing . . . of the statute law of West Virginia

. . . .” W.Va. Report of the Revision and Codification Commission (1927). The

Commission’s Report sets forth the temporal component that was included in the

recodification of the West Virginia Code in 1931.

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executive committee to name only one qualified person to fill the vacancy, as indicated

above.

In 1963, the legislature repealed chapter three of the West Virginia Code and

enacted a new chapter three, “all relating to the establishment, administration and regulation

of elections and election procedures[.]” 1963 W.Va. Acts 221. At this time, section 6 (West

Virginia § 3-10-6) was redesignated as section 5 (West Virginia Code § 3-10-5). The

imposition of the mandatory time limit for the executive committee to submit the list of three

names from which the Governor is to fill the senate vacancy, and the consequences if the

committee fails to do so, was added by the legislature in 1975, as follows: “If such list is not

submitted to the governor within the fifteen day period, the governor shall appoint within five

days thereafter a legally qualified person of the political party of the person vacating the

office.” W.Va. Code § 3-10-5 (1975) (emphasis added); see also 1975 W.Va. Acts 415.5

5

In 2010, the legislature subdivided the statute into its current subsections (a), (b), and

(c), and made minor changes to the last sentence of subsection (a), as follows: “If the list is

not submitted to the Governor within the fifteen day period, the Governor shall appoint

within five days thereafter a legally qualified person of the same political party as the person

vacating the office.” 2010 W.Va. Acts 951-52. Subsection (c) was revised in 2013 to

provide, as follows:

In the case of a State Senator, the list shall be submitted

by the party executive committee of the state senatorial district

in which the vacating senator resided at the time of his or her

election or appointment. The appointment to fill a vacancy in the

State Senate is for the unexpired term, unless section one of this

(continued...)

5

As reflected in the legislative history discussed above, and for the last eighty-

five years, West Virginia Code § 3-10-5 has clearly provided that “the party with which the

person holding the office immediately preceding the vacancy was affiliated[]” dictates the

party of his or her appointed replacement. W.Va. Code § 3-10-5(a) (emphasis added). It is

this temporal component in West Virginia Code § 3-10-5(a) that renders the Kansas and

Wyoming cases relied upon by the petitioners inapplicable and unpersuasive to the matter at

hand. Unlike the subject statute, the Kansas and Wyoming statutes lacked a temporal

provision. See Wilson v. Sebelius, 72 P.3d 553 (Kan. 2003) (interpreting statutory phrase “of

the party” and finding that party affiliation at time of election controls); Richards v. Bd. of

Cnty. Comm’rs, 6 P.3d 1251 (Wyo. 2000) (finding statutory language “the political party to

which the member whose office is vacant belonged” to be ambiguous and concluding that

political party to which commissioner belonged at time of his election controlled).6

5

(...continued)

article requires a subsequent election to fill the remainder of the

term, which shal follow the procedure set forth in section one of

this article.

2013 W.Va. Acts 850-51.

6

In 2004, the Wyoming legislature amended Wyoming Code § 18-3-524 by deleting

the word “belonged” in the phrase “of the political party to which the member whose office

is vacant belonged[;]” by adding language that now reads: “of the political party to which the

member whose office is vacant represented at the time of his election . . . or at the time of

his appointment if not elected to office[;]” and by adding subsection (d), which states, in part,

that “a person shall be considered to ‘represent’ a political party if he was a nominee of that

political party when elected to office or when appointed to fill a vacancy in office.” Wyo.

Stat. Ann. § 18-3-524(a) and (d) (emphasis added).

6

Notwithstanding the clear and unambiguous language in West Virginia Code

§ 3-10-5(a), the petitioners contend the statute is ambiguous and essentially ask this Court

to amend the statute with language that would require a vacancy in the state senate to be

filled by a member of the political party with which the vacating senator was affiliated at the

time of his or her election. However, as I have previously explained, “‘[c]ourts are not free

to read into the language what is not there, but rather should apply the statute as written.’

State ex rel. Frazier v. Meadows, 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994).” Robinson

v. City of Bluefield, 234 W.Va. 209, 220-21, 764 S.E.2d 740, 751-52 (2014) (Loughry, J.,

dissenting). In fact,“‘[c]ourts must presume that a legislature says in a statute what it means

and means in a statute what it says there.’ Martin v. Randolph Cnty. Bd. of Educ., 195 W.Va.

297, 312, 465 S.E.2d 399, 415 (1995) (internal citation omitted).” Robinson, 234 W.Va. at

220, 764 S.E.2d at 752 (Loughry, J., dissenting). Moreover, when “‘[a] statutory provision

which is clear and unambiguous and plainly expresses the legislative intent will not be

interpreted by the courts but will be given full force and effect.’” Todd M.S. v. Julie M.G.,

230 W.Va. 612, 619-20, 741 S.E.2d 837, 844-45 (2013) (quoting Syl. Pt. 2, State v. Epperly,

135 W.Va. 877, 65 S.E.2d 488 (1951)).

Here, the “immediately preceding the vacancy” language in West Virginia

Code § 3-10-5(a) has been in place since at least 1931. During the intervening decades, the

legislature could have amended this statute by removing this particular language and

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replacing it with language that would require looking to the vacating senator’s political party

affiliation at the time of his or her election for purposes of filling the vacancy. It has not

done so. Furthermore, ambiguity does not materialize at the mere suggestion of a dispute.

The fact that the petitioners have conjured an argument feigning confusion over clear

statutory language does not, in itself, create an ambiguity. Importantly, absent ambiguity,

this Court is constrained to apply the statute, as written.7

7

Although Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982), was mentioned

in a footnote in the petitioners’ appellate brief, during oral argument, a member of the Court

elicited a discussion as to whether Rodriguez would call into question the constitutionality

of West Virginia Code § 3-10-5. Notwithstanding the absence of any meaningful discussion

of Rodriguez in the parties’ briefs, there are significant differences between West Virginia

Code § 3-10-5 and the statutory procedure for filling vacancies under consideration in

Rodriguez. Further, in Rodriguez, the statute allowed the political party of the member

whose seat was vacated to make an appointment to fill the vacancy by holding an election

among its members. The appellants argued that this procedure, which excluded voters who

were not members of that political party from voting, denied them equal protection. Citing

its prior rulings, the Court reaffirmed that the filling of a vacancy on an interim basis by

appointment, rather than by election, is constitutional and that “[n]o provision of the Federal

Constitution expressly mandates the procedures that a state . . . must follow in filling

vacancies in its own legislature.” Id. at 8. The Court further explained that “Puerto Rico’s

appointment mechanism is not rendered constitutionally defective by virtue of the fact that

the interim appointment power is given to the political party with which the previous

incumbent was affiliated.” Id. at 12. Importantly, the Court also noted that “[t]he methods

by which . . . Puerto Rico . . . [has] chosen to structure the Commonwealth’s electoral system

are entitled to substantial deference.” Id. at 8. Here, the legislature has chosen to give the

party executive committee with which the person holding the office immediately preceding

the vacancy was affiliated the authority to name three qualified persons to fill the vacancy.

W.Va. Code § 3-10-5; see also W.Va. Const., art. VI, § 24 (“Each house shall determine the

. . . qualifications of its own members.”). Accordingly, and as thoroughly explained in the

majority opinion, the rulings set forth in Rodriguez do not render West Virginia Code § 3-10-

5 unconstitutional.

8

When Mr. Hall vacated his senate seat on January 3, 2016, he was affiliated

with the Republican Party. Under these facts, and giving full force and effect to West

Virginia Code § 3-10-5, as written, I am compelled to conclude that although Mr. Hall was

affiliated with the Democratic Party at the time of his election in 2012, his party affiliation

at the time he vacated his senate seat controls. W.Va. Code § 3-10-5(a).

Notwithstanding the political nature of the instant matter, “[a]n independent,

fair and impartial judiciary is indispensable to our system of justice. The United States legal

system is based upon the principle that an independent, impartial, and competent judiciary,

composed of men and women of integrity, will interpret and apply that law that governs our

society.” Preamble, Code of Jud. Conduct. As mandated by the Code of Judicial Conduct,

a judge “shall not be swayed by public clamor or fear of criticism” and “shall not permit

family, social, political, financial, or other interests or relationships to influence the judge’s

judicial conduct or judgment.” Canons 2.4(A) and (B). Indeed,

[a]n independent judiciary requires that judges decide

cases according to the law and facts, without regard to whether

particular laws or litigants are popular or unpopular with the

public, the media, government officials, or the judge’s friends

or family. Confidence in the judiciary is eroded if judicial

decision making is perceived to be subject to inappropriate

outside influences.

Official Commentary [1], Canon 2.4. In furtherance of these precepts, it is imperative that

judges interpret and apply the law objectively and without regard to whether they personally

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approve or disapprove of the law in question. Equally imperative to American concepts of

justice and the rule of law is that parties respect and abide by judicial decisions.8

For these reasons, as well as those expressed by the majority of this Court, I

agree that the Governor must select a person from the list of legally qualified persons

submitted by the West Virginia Republican Executive Committee for the Ninth Senatorial

District to fill the vacancy in the state senate created by Mr. Hall’s resignation. Indeed, the

Governor has a constitutional duty to fill such vacancies.9 In the event the voters in the

affected senatorial district disapprove of the Governor’s selection, those same voters will

have the opportunity during the primary and general elections held later this year to select a

different person to represent their district in the State Senate. Accordingly, I respectfully

concur.

8

See Syl. Pt. 1, United Mine Workers of Amer. v. Faerber, 179 W.Va. 73, 365 S.E.2d

353 (1986) (“When this Court acts within its jurisdiction, its orders shall be promptly obeyed,

or contempt is a proper sanction.”).

9

Any suggestion that the Senate is not bound to seat such appointee under the rubric

of “judging the qualifications” of its members is misplaced. The legislature has statutorily

prescribed the legal qualifications of such member. Once the Governor selects a person to

fill Mr. Hall’s vacancy from the list of legally qualified persons submitted by the West

Virginia Republican Executive Committee for the Ninth Senatorial District, the appointment

will be in compliance with the pertinent statutory requirements and this Court’s opinion, after

which the Senate will be bound to seat the Governor’s appointee.

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