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

> West Virginia Supreme Court · January 27, 2016

URL: https://www.frixlaw.com/law-library/cases/3172721

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** January 27, 2016
- **Precedential status:** Separate
- **Opinion:** Opinion
- **Nature of suit:** Writ Application-Other
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
January 27, 2016
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

No. 16-0013 – State of West Virginia ex rel. Belinda Biafore, Chair of the West
Virginia State Democratic Committee; and Stephen Davis, Linda
Klopp, David Thompson, Linda Phillips, Stephen Evans, and Patricia
Blevins, Members of the West Virginia Democratic Executive
Committee for the Ninth Senatorial District v. Earl Ray Tomblin,
Governor of the State of West Virginia; and Beverly R. Lund, Justin M.
Arvon, Sue “Naomi” Cline, Tony Paynter, John Doe, and Jane Doe,
Members of the West Virginia Republican Executive Committee for the
Ninth Senatorial District, and State of West Virginia, by its Attorney
General Patrick Morrisey

Davis, Justice, dissenting:

As observed by the majority, the Court’s decision in this case “is grounded in

law, not in ideology or politics.” I could not agree more with this sentiment, but I strongly

disagree with how the law was applied in the Court’s decision of this case because the

majority has let the exception to statutory construction swallow the rule. Like proverbial deer

in the headlights, the parties to the instant proceeding have virtually frozen when faced with

the full measure of the legal question presented by this case: the proper construction and

application of W. Va. Code § 3-10-5 (2013) (Repl. Vol. 2013). While it was considerate for

the parties to evade the pivotal question of this statute’s constitutionality to facilitate the

Court’s decision of this case, such niceties were neither necessary nor prudent. This Court

regularly considers and decides issues involving this State’s Constitution, and, while

addressing the constitutionality of a statutory provision is not always a routine part of this

1
Court’s statutory construction, sometimes the constitutional implications of a statute’s

construction require venturing into that realm. Discerning the meaning and application of

W. Va. Code § 3-10-5 requires such a constitutional analysis. Though, on its face, the

statutory language appears innocuous, a closer examination of the statute’s wording in light

of the Legislature’s intent in promulgating this provision demonstrates that W. Va. Code § 3-

10-5 cannot constitutionally be applied as it is written because the express language is

internally inconsistent, contravenes the underlying legislative intent, and violates the West

Virginia Constitution. Because the majority of this Court has insisted on following the lead

of the parties and skirted around both the recognition and the resolution of this pivotal

constitutional issue, I resolutely dissent.

Propriety of Addressing Statute’s Constitutionality

When this Court encounters a matter of statutory construction, it is customary

to adopt an interpretation that is consistent with the commands of this State’s Constitution.

See Syl. pt. 5, Community Antenna Serv., Inc. v. Charter Commc’ns VI, LLC, 227 W. Va.

595, 712 S.E.2d 504 (2011) (“‘A statute should be so read and applied as to make it accord

with the spirit, purposes and objects of the general system of law of which it is intended to

form a part; it being presumed that the legislators who drafted and passed it were familiar

with all existing law, applicable to the subject matter, whether constitutional, statutory or

common, and intended the statute to harmonize completely with the same and aid in the

2
effectuation of the general purpose and design thereof, if its terms are consistent therewith.’

Syl. Pt. 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).”). In this regard, the Court

has determined that “‘whenever an act of the legislature can be so construed and applied as

to avoid a conflict with the constitution, and give it the force of law, such construction will

be adopted by the court.’” Morris v. Crown Equip. Corp., 219 W. Va. 347, 355, 633 S.E.2d

292, 300 (2006) (quoting Peel Splint Coal Co. v. State, 36 W. Va. 802, 815, 15 S.E. 1000,

1004 (1892) (citation omitted)). See also Syl. pt. 29, Coal & Coke Ry. Co. v. Conley, 67

W. Va. 129, 67 S.E. 613 (1910) (“Courts will never impute to the legislature intent to

contravene the constitution of either the state or the United States, by construing a statute so

as to make it unconstitutional, if such construction can be avoided, consistently with law, in

giving effect to the statute, and this can always be done, if the purpose of the act is not

beyond legislative power in whole or in part, and there is no language in it expressive of

specific intent to violate the organic law.”).

Nevertheless, while statutory construction generally counsels against

constitutionality inquiries, such an analysis may, and simply must, be performed when

confronted with a statute that clearly violates the express language of the Constitution of this

State. Thus, where, as here, the constitutional question has been raised by the parties,1 it is

1
While not artfully addressed or thoroughly briefed, the issue of the
constitutionality of the subject statute was undeniably raised and interjected into the parties’
(continued...)

3
certainly permissible to undertake such an analysis when necessary to thoroughly ascertain

the meaning of the subject statute and, more particularly, where other constructions of the

same statute would lead to unjust, absurd, inconsistent, or unconstitutional results. When

conducting such a constitutional inquiry, this Court is guided by its holding in Syllabus point

1 of State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965):

In considering the constitutionality of a legislative
enactment, courts must exercise due restraint, in recognition of
the principle of the separation of powers in government among
the judicial, legislative and executive branches. Every
reasonable construction must be resorted to by the courts in
order to sustain constitutionality, and any reasonable doubt must
be resolved in favor of the constitutionality of the legislative
enactment in question. Courts are not concerned with questions
relating to legislative policy. The general powers of the
legislature, within constitutional limits, are almost plenary. In
considering the constitutionality of an act of the legislature, the
negation of legislative power must appear beyond reasonable
doubt.

Despite this countenance, a statute may be invalidated as unconstitutional when it infringes

a right specifically guaranteed by this State’s Constitution.

It is no objection to the remedy in [a] case, that the
statute, the application of which in the particular case is sought
to be prevented, is not void on its face, but is complained of only
because its operation in the particular instance works a violation
of a constitutional right.

Syl. pt. 8, Conley, 67 W. Va. 129, 67 S.E. 613. Accord Syl. pt. 12, Farley v. Graney, 146

1
(...continued)
arguments regarding the proper construction of W. Va. Code § 3-10-5.

4
W. Va. 22, 119 S.E.2d 833 (1960) (“An act of the legislature may be valid in its general

scope and broad outline but invalid to the extent that the restrictions imposed thereby are

clearly arbitrary and unreasonable in their application to specific property.”); Harbert v.

Harrison Cnty. Court, 129 W. Va. 54, 69, 39 S.E.2d 177, 188 (1946) (“A statute, however,

may be unconstitutional and void in its application to a part of its subject matter and valid as

to the remainder. It may be constitutional in operation with respect to one state of facts and

unconstitutional as to another.” (citation omitted)). It is pursuant to this standard that the

Court should have decided the case sub judice.

West Virginia Code § 3-10-5 Violates West Virginia Constitution Article II, Section 2

While I agree with the majority’s facial interpretation of the express language

of W. Va. Code § 3-10-5, I disagree that that limited analysis concludes the Court’s inquiry.

This Court repeatedly has stated that “[t]he primary object in construing a statute is to

ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State

Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Moreover, “[i]n

ascertaining legislative intent, effect must be given to each part of the statute and to the

statute as a whole so as to accomplish the general purpose of the legislation.” Syl. pt. 2, id

(emphasis added). However, when determining the Legislature’s intent in promulgating a

particular provision, no single statute can be viewed in isolation; rather, the tenor of all of

the statutes that comprise a given body of law are instructive to ascertaining the legislative

5
intent inherent within a statute. In other words, “[s]tatutes which relate to the same subject

matter should be read and applied together so that the Legislature’s intention can be gathered

from the whole of the enactments.” Syl. pt. 3, id. Thus,

[s]tatutes which relate to the same persons or things, or
to the same class of persons or things, or statutes which have a
common purpose will be regarded in pari materia to assure
recognition and implementation of the legislative intent.
Accordingly, a court should not limit its consideration to any
single part, provision, section, sentence, phrase or word, but
rather review the act or statute in its entirety to ascertain
legislative intent properly.

Syl. pt. 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W. Va. 14, 217 S.E.2d

907 (1975).

The Legislature enacted W. Va. Code § 3-10-5 as part of the voluminous

chapter of laws governing elections in this State. See W. Va. Code § 3-1-1 (1963) (Repl.

Vol. 2013) (“This chapter shall constitute and may be cited as the ‘West Virginia Elections

Code’ and contemplates and comprehends a code of laws for the establishment,

administration and regulation of elections and election procedures in the state of West

Virginia.”). As a legislative enactment, it is to be presumed that this section complies with

the mandates of the West Virginia Constitution, and, in particular, article II, section 2 which

provides that “[t]he powers of government reside in all the citizens of the State, and can be

rightfully exercised only in accordance with their will and appointment.” By its express

terms, this constitutional command secures the mandate of the electorate in their choice of

6
the people who will represent them and their interests in this State’s government. “A

constitution is the fundamental law by which all people of the state are governed. It is the

very genesis of government. Unlike ordinary legislation, a constitution is enacted by the

people themselves in their sovereign capacity and is therefore the paramount law.” State ex

rel. Smith v. Gore, 150 W. Va. 71, 77, 143 S.E.2d 791, 795 (1965). Thus, it is not for this

Court to decide whether it will heed this clear constitutional command. Rather, enforcement

of rights secured by the Constitution of this great State is engrained in this Court’s inherent

duty to neutrally and impartially interpret and apply the law. In other words, “[c]ourts are

not concerned with the wisdom or expediencies of constitutional provisions, and the duty of

the judiciary is merely to carry out the provisions of the plain language stated in the

constitution.” Syl. pt. 3, State ex rel. Casey v. Pauley, 158 W. Va. 298, 210 S.E.2d 649

(1975). This is so because “[t]he provisions of the Constitution, the organic and fundamental

law of the land, stand upon a higher plane than statutes, and they will as a rule be held

mandatory in prescribing the exact and exclusive methods of performing the acts permitted

or required.” Syl. pt. 2, Simms v. Sawyers, 85 W. Va. 245, 101 S.E. 467 (1919).

It is apparent from reading the various statutes enacted by the Legislature in

its definition of this State’s election laws that it recognized and heeded the constitutional

command announced by article II, section 2. Replete in this body of law are numerous

provisions that safeguard a voter’s choice of candidate and ensure that his/her vote will be

7
recorded as it was cast. See, e.g., W. Va. Code § 3-1-45 (2003) (Repl. Vol. 2013)

(authorizing mandamus proceeding to compel performance of duties required under State’s

election laws); W. Va. Code § 3-1A-1 (2010) (Repl. Vol. 2013) (forming State Election

Commission); W. Va. Code § 3-5-19 (2007) (Repl. Vol. 2013) (defining procedure for filling

vacancy in nomination); W. Va. Code § 3-9-9 (1986) (Repl. Vol. 2013) (ensuring secrecy of

voter’s ballot); W. Va. Code § 3-9-17 (1963) (Repl. Vol. 2013) (imposing criminal penalties

for alteration of voter’s ballot). See also W. Va. Code § 3-3-1 et seq. (delineating procedures

for absentee voting and handling of such ballots); W. Va. Code § 3-3A-1 et seq. (establishing

pilot program for voting by mail and process to govern collection and counting of ballots cast

in this manner); W. Va. Code § 3-3B-1 et seq. (forming uniformed services and overseas

voter pilot program and defining procedure for tabulating such ballots). Still other statutes

ensure the integrity of the election process, itself, by requiring candidates for office to pledge

to conduct their campaigns in such a manner so as to uphold “the full and free expression of

the will of the voters” and to defend “the right of every qualified voter to full and equal

participation in the electoral process.” W. Va. Code § 3-1B-5 (1995) (Repl. Vol. 2013). See

also W. Va. Code § 3-5-7(d)(6)(B) (2015) (Supp. 2015) (requiring candidate to maintain

allegiance to his/her stated political party for specified period by verifying that he/she has

been member of same political party for sixty days preceding filing of his/her “certificate of

announcement”). And, included within this body of election law is, of course, the nefarious

§ 3-10-5 which stands at the center of the instant controversy.

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I agree with my colleagues that, on its face, this seemingly innocuous provision

provides the guidance sought by the parties. However, a closer reading of this statute

inevitably reveals internal inconsistencies that I submit render it unconstitutional because it

cannot, as it is written, carry out the will of the voters. In subsection a of W. Va. Code § 3-

10-5, the Legislature references “the party with which the person holding the office

immediately preceding the vacancy was affiliated,” which the majority correctly interprets

as referring to the party that the outgoing legislator belonged to at the time he/she vacated

his/her office. However, subsection c of this same code section requires “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” to supply the Governor with the list of names from which

a replacement senator is to be appointed. (Emphasis added). These incongruous directives

simply do not make sense if the Legislature, as is this Court, is duty-bound to abide by the

will of the voters vis-à-vis their choice of elected officials.

I understand subsection c to refer to the party executive committee of the state

senatorial district from which the outgoing senator was elected so as to ensure that the

representational balance of the Senate is maintained even if the senatorial districts might be

reconfigured, as has happened in this case between the time of Senator Hall’s election and

his resignation. Such balance can be achieved only by maintaining the status quo sanctioned

by the voters, i.e., ensuring both the same geographical area and the same political party that

9
elected the vacating senator are responsible for nominating his/her replacement. Recognizing

and safeguarding the will of the voters in this manner “serv[es] to protect the mandate of the

preceding election[,] . . . preserve[s] the ‘legislative balance’ until the next general election

is held[, and] . . . make[s] provision for continuity of party representation.” Rodriguez v.

Popular Democratic Party, 457 U.S. 1, 13, 102 S. Ct. 2194, 2201-02, 72 L. Ed. 2d 628

(1982) (citation and footnote omitted). If the Legislature recognizes that it must uphold the

voters’ right to select their representatives so as to require the replacement senator be chosen

from the same senatorial district as it existed at the time of the election, it seems, too, that

the only way to be certain that the voters’ prerogative, as it existed at the time of the election,

is realized is to also require that the replacement senator be chosen from the same political

party as that from which the vacating senator served as candidate when he/she was elected

to office. Indeed, “‘party selection is more likely to reflect the will of the voters . . . for it

was the former representative’s party . . . that won the prior seat.’” Rodriguez, 457 U.S. at

12 n.12, 102 S. Ct. at 2201 n.12, 72 L. Ed. 2d 628 (quoting Garcia v. Barcelo, 671 F.2d 1,

6 (1st Cir. 1982)).

To interpret W. Va. Code § 3-10-5 in this manner, though, makes it internally

inconsistent, as subsection a prefers the vacating senator’s party affiliation at the time he/she

leaves office, while subsection c, to comply with the constitutional mandate of the voters

secured by article II, section 2, requires the vacating senator’s party at the time he/she was

10
elected to nominate his/her replacement. In light of this incongruous and inconsistent result,

W. Va. Code § 3-10-5 must be deemed unconstitutional. See Syl. pt. 6, City of Fairmont v.

Pitrolo Pontiac-Cadillac Co., 172 W. Va. 505, 308 S.E.2d 527 (1983) (“Generally, when a

statute or ordinance is declared unconstitutional, it is inoperative, as if it had never been

passed.”).

This reading of the statute is even more compelling when viewed in the context

of the instant controversy. While it goes without saying that the party-changing scenario

presented by the case sub judice was not definitively addressed by the subject statute, and

perhaps was never even contemplated when it was enacted or amended, that, nevertheless,

is the fact pattern to which § 3-10-5 must be interpreted to apply in this case. Although the

respondents make much of the changing nature of the election results in recent contests as

indicating a change in party support by the voters, that trend simply is not relevant to the

instant inquiry. Neither voter demographics nor the political party affiliation of candidates

elected in 2014 is instructive to a determination of the will of the voters who elected Senator

Hall, as a Democrat, in 2012. It is Senator Hall who has vacated his seat, and who must be

replaced by the Governor, not a subsequently elected or differently affiliated candidate.

Moreover, it must be remembered that substantial legislative redistricting took place

following the 2010 Census, the effects of which were not felt until the 2014 election at which

time the same Ninth Senatorial District may have represented different voters in the 2014

11
election than it did in the 2012 election. Thus, allegiance to the will of the voters who

elected Senator Hall as a Senator from the Ninth District in 2012 requires that a replacement

candidate from both the same geographic area and the same political party as that represented

by then-candidate Hall during the 2012 election be appointed. As noted previously, the only

way the mandate of the Ninth District’s 2012 electorate, as secured by article II, section 2 of

the West Virginia Constitution, can be faithfully upheld within the current factual context is

to declare W. Va. Code § 3-10-5 to be unconstitutional.

West Virginia Code § 3-10-5 Violates West Virginia Constitution Article II, Section 4

I also find W. Va. Code § 3-10-5 to be unconstitutional under article II, section

4 of this State’s Constitution because this code provision operates to disenfranchise the

voters of the political party for whom the vacating legislator served as a candidate when, as

here, that legislator subsequently changes political parties and, upon his/her departure from

office, is replaced by a person from the legislator’s new political party. Article II, section 4

states that “[e]very citizen shall be entitled to equal representation in the government, and,

in all apportionments of representation, equality of numbers of those entitled thereto, shall

as far as practicable, be preserved.” This Court previously has determined this language to

be plain: “[w]e believe that Article II, Section 4 of our Constitution is clear in its terms and

that the intention thereof is manifest from the language used. It provides for equal

representation in government and, additionally, in all apportionments of representation.”

12
State ex rel. Smith v. Gore, 150 W. Va. at 76, 143 S.E.2d at 794. Thus, it is clear that the

voters of this State have the right, guaranteed by this State’s Constitution, to elect the

individuals who will represent them, and their interests, in this State’s Legislature.

Moreover, “[n]o right is more precious in a free country than that of having a

voice in the election of those who make the laws under which, as good citizens, we must

live.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481 (1964). As

this Court previously has recognized,

the ‘one person, one vote’ principle is now firmly established in
broad general terms without qualification or exception.
Certainly the right of the voter to equal protection, the right to
protection against the dilution or debasement of the weight or
force of an individual’s vote, is fully as sound, sacred and
important when he is voting on issues involving taxation, public
revenue and the promotion of an adequate public school system,
as when he is voting for the nomination or election of a
constable, a state senator, a governor or any other public official
to represent the voter in government.

The fact remains that our state constitution has extended the
right of the voter into these areas; and when the voter was
constitutionally granted the right to vote on these important
issues, he thereby became guaranteed the equal protection of the
law under the Fourteenth Amendment and the constitutional
right to have his vote accorded the same weight, effect and force
as that of any other persons’s vote, and thereby he became
protected by the constitutional right to have the weight, force
and effect of his vote not debased or diluted when considered in
relation to the vote of any other person.

Lance v. Board of Educ. of Cnty. of Roane, 153 W. Va. 559, 572-73, 170 S.E.2d 783, 790-91

13
(1969) (emphasis added), rev’d on other grounds sub nom., Gordon v. Lance, 403 U.S. 1, 91

S. Ct. 1889, 29 L. Ed. 2d 273 (1971).

I would be remiss if I did not acknowledge that persons who are elected to

political office also have a constitutionally protected right: the right to join the political party

of their choosing. Syl. pt. 3, State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301,

460 S.E.2d 436 (1995) (“Restrictions that limit an individual’s ability to select and change

his or her party affiliation implicate the speech and associational freedoms guaranteed by the

First Amendment to the United States Constitution and by Sections 7 and 16 of Article III

of the West Virginia Constitution. Such restrictions cannot be imposed on these rights unless

the restrictions are necessary to accomplish a legitimate and compelling governmental

interest and there is no less restrictive means of satisfying such interest.”). That is not to say,

however, that the whim of the one may trump the will of the many. While the express

language of W. Va. Code § 3-10-5 may require replacing a vacating legislator with an

individual of the last political party of which the vacating legislator was a member, where,

as here, that legislator has changed parties such that the person replacing him/her is a

member of a different political party than the one that sponsored the legislator as a candidate

for political office at the time he/she was elected, such a replacement procedure effectively

frustrates the voters’ right to elect the candidate of their choice. “Political candidacies are

essentially a coming together of voters to support a particular platform, cause, or leader.

14
Political parties, which are—for better or worse—an integral part of our democratic system,

measure their success through their candidates.” Billings, 194 W. Va. at 305, 460 S.E.2d at

440. Therefore, it is inevitable that

candidates’ rights are necessarily tied to voters’ rights. Clearly,
“[t]he right to vote freely for the candidate of one’s choice is of
the essence of a democratic society, and any restrictions on the
right strike at the heart of representative democracy.” Reynolds
v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 1378, 12 L. Ed. 2d
506, 523 (1964). A citizen’s right to vote is not worth much if
the law denies his or her candidate of choice the opportunity to
run. “The rights of voters and the rights of candidates do not
lend themselves to neat separation; laws that affect candidates
always have at least some theoretical, correlating effect on
voters.” Bullock v. Carter, 405 U.S. 134, 143, 92 S. Ct. 849,
856, 31 L. Ed. 2d 92, 99 (1972). As the United States Supreme
Court observed in Powell v. McCormack, 395 U.S. 486, 548, 89
S. Ct. 1944, 1977, 23 L. Ed. 2d 491, 531 (1969):

“A fundamental principle of our representative
democracy is, in Hamilton’s words, ‘that the
people should choose whom they please to govern
them.’ 2 Elliot’s Debates, 257. . . .”

Billings, 194 W. Va. at 305, 460 S.E.2d at 440.

In the case sub judice, the voters of the Ninth Senatorial District chose the

person who they wanted to represent them during the 2012 senatorial election: Daniel Hall,

a candidate representing the Democratic Party. As was his constitutionally-guaranteed

prerogative, Senator Hall subsequently parted ways with the Democratic Party and joined the

ranks of the Republican Party. Upon his departure from office, however, application of the

15
express language of W. Va. Code § 3-10-5 to name his replacement operates to

disenfranchise the voters of the Ninth Senatorial District who, at the time of the 2012

election, selected Daniel Hall of the Democratic Party to represent them. This construction,

dictated by the statute’s plain language, effectively silences the voters’ voice and cannot be

reconciled with the voters’ constitutional right to select a representative of their choosing

guaranteed by article II, section 4.

“The right to vote freely for the candidate of one’s choice is of
the essence of a democratic society, and any restrictions on that
right strike at the heart of representative government. And the
right of suffrage can be denied by a debasement or dilution of
the weight of a citizen’s vote just as effectively as by wholly
prohibiting the free exercise of the franchise.” (Italics supplied.)

Lance v. Board of Educ. of Cnty. of Roane, 153 W. Va. at 569, 170 S.E.2d at 789 (quoting

Reynolds v. Sims, 377 U.S. at 555, 84 S. Ct. at 1378, 12 L. Ed. 2d 506 (footnote omitted)).

See also Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 655, 86 S. Ct. 1079, 1081,

16 L. Ed. 2d 169 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be

drawn which are inconsistent with the Equal Protection Clause of the Fourteenth

Amendment.”). Application of W. Va. Code § 3-10-5 as endorsed by the majority deprives

the voters of their right to elect a candidate of their choosing, and, thus, is unconstitutional

as violative of article II, section 4 of the West Virginia Constitution. Because “the judiciary

. . . has a role to play in ensuring the [electoral] process retains its integrity and functions as

an accurate reflection of the people’s will,” Billings, 194 W. Va. at 307, 460 S.E.2d at 442

(footnote omitted), I simply cannot countenance this incongruous result.

16
Courts are Constituted to Faithfully Interpret and Apply the Law,
Not to Advance the Personal Objectives of Individual Justices

As with all of the views espoused in my opinions, I reach my conclusion that

W. Va. Code § 3-10-5 is unconstitutional only after careful consideration and thorough

analysis of the parties’ arguments and the law governing the subject controversy. As a

Justice of this State’s highest court, I am honored to have been elected by this State’s voters

and strive, in every case upon which I sit, to “support the Constitution of the United States

and the Constitution of this State” and to “faithfully discharge the duties of [my] office to the

best of [my] skill and judgment.” W. Va. Const. art. IV, § 5. I also endeavor to faithfully

follow the Canons of Judicial Conduct, which require persons elected to judicial office to

“participate in establishing, maintaining, and enforcing high standards of conduct” and to

“personally observe those standards so that the integrity and independence of the judiciary

will be preserved.” W. Va. Code Judicial Conduct Canon 1. See also W. Va. Code Judicial

Conduct Canon 2 (requiring judge “not to allow family, social, political, or other

relationships to influence the judge’s judicial conduct or judgment”).

When I disagree with a decision endorsed by the majority of this Court, I do

so because I interpret the law differently than my brethren. Simply because I do not share

my colleagues’ point of view, though, does not mean that I do not still respect them both as

individuals and for their legal acumen. Rather, I reiterate the eloquent words of President

Haymond, who explained his decision to dissent from the majority of the Court thusly: “It

17
should be clearly understood that in expressing my dissentient views, however, in this honest

and sincere disagreement between my associates and me, my criticisms are directed, not to

them, but to their direction.” Lance v. Board of Educ. of Cnty. of Roane, 153 W. Va. at 574,

170 S.E.2d at 791 (Haymond, President, dissenting).

We are all, all five of us Justices, constitutionally bound to uphold the laws of

this State to the best of our ability and to do so with the neutrality expected of the judiciary.

As officers of the Court, we are not beholden to personal agendas and do not use our position

in the judiciary to advance our private interests. This is what the voters of the State entrusted

us to do when they elected us, and this is what we do every day we serve as a Justice of this

Honorable Court. The citizens of West Virginia deserve to understand the views I have

expressed in this separate opinion explaining the Constitution’s vital role in protecting not

only their sacred right to vote but also in preserving the sanctity of the choices they make

when they cast their ballots. In light of this obligation we all have assumed to interpret and

apply the law to accomplish justice, I find it profoundly troubling that a commentary

suggesting bias or impugning the integrity of a justice would ever have a place in a separate,

concurring opinion–particularly when, by the very virtue of their assumption of office, it is

axiomatic that all of the Justices of this Court exhibit neutrality and impartiality in their

decisions interpreting the law.

18
It goes without saying that the case sub judice presented an interesting

challenge for the Court’s resolution. On the one hand, the instant proceeding involved a

rather straightforward matter of statutory construction. On the other hand, there is entwined

with this inquiry a constitutional concern of such great magnitude that the first step in such

a statutory analysis, i.e., ascertaining and adhering to the legislative intent, cannot possibly

be accomplished without considering and deciding the constitutionality of the subject

legislative enactment. While the parties have conceded that they largely abandoned their

constitutional arguments in favor of proposing a more simplistic statutory construction

analysis, such strategy gives short shrift to the ability of this Court to undertake and

determine complicated questions of statutory construction and works a great disservice to the

voters of this State whose right to be represented by the candidate of their choosing is at the

very heart of their controversy. Although not artfully or thoroughly raised, the Petitioners

did interject the constitutionality of W. Va. Code § 3-10-5 into this proceeding so as to permit

the Court to determine whether this provision meets constitutional muster. Because the

majority ignored this invitation, and its duty, to decide this singularly dispositive issue, I

respectfully dissent.

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3172721. Public record. Not legal advice.