Brent D. Benjamin v. Elizabeth D. Walker

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2016 Term

FILED

______________________ April 19, 2016

released at 3:00 p.m.

RORY L. PERRY II, CLERK

NO. 16-0228 SUPREME COURT OF APPEALS

______________________ OF WEST VIRGINIA

BRENT D. BENJAMIN, candidate for the

Supreme Court of Appeals of West Virginia,

Petitioner

v.

ELIZABETH D. WALKER, candidate for the

Supreme Court of Appeals of West Virginia;

West Virginia Secretary of State NATALIE TENNANT;

West Virginia State Election Commission members

GARY A. COLLIAS and VINCENT P. CARDI,

Respondents

_________________________________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Tod J. Kaufman, Chief Judge

Civil Action No. 16-AA-7

REVERSED

_______________________________________________________________________

Submitted: March 23, 2016

Filed: April 19, 2016

Benjamin Bailey K&L GATES LLP

Jonathan R. Marshall Thomas C. Ryan

Maryl C. Sattler 210 Sixth Avenue

BAILEY & GLASSER, LLP Pittsburgh, PA 15222

209 Capitol Street Attorney for Respondent

Charleston, WV 25301 Walker

Attorneys for Petitioner

Benjamin

Richard L. Gottlieb

Webster J. Arceneaux, III

Spencer D. Elliott

LEWIS GLASSER CASEY & ROLLINS, PLLC

300 Summers St., Suite 700

Charleston, WV 25301

Attorneys for Respondents

Tennant, Collias & Cardi

ACTING CHIEF JUSTICE THOMAS H. KEADLE

delivered the Opinion of the Court.

CHIEF JUSTICE MENIS E. KETCHUM,

JUSTICE ROBIN JEAN DAVIS,

JUSTICE BRENT D. BENJAMIN,

JUSTICE MARGARET L. WORKMAN, and

JUSTICE ALLEN H. LOUGHRY II, deeming themselves

disqualified, did not participate in the decision of

this case.

SENIOR STATUS JUDGE THOMAS H. KEADLE,

as Acting Chief Justice,

SENIOR STATUS JUDGE JAMES O. HOLLIDAY,

JUDGE JOHN W. HATCHER, JR.,

JUDGE JAMES P. MAZZONE, and

JUDGE THOMAS C. EVANS, III, sitting by

temporary assignment.

SYLLABUS BY THE COURT

1. “On appeal of an administrative order from a circuit court, this Court

is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and

reviews questions of law presented de novo; findings of fact by the administrative

officer are accorded deference unless the reviewing court believes the findings to be

clearly wrong.” Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).

2. “In cases where the circuit court has amended the result before the

administrative agency, this Court reviews the final order of the circuit court and the

ultimate disposition by it of an administrative law case under an abuse of discretion

standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W.

Va. 588, 474 S.E.2d 518 (1996).

3. “A regulation that is proposed by an agency and approved by the

Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures

Act, W. Va. Code, 29A-1-2(d) [1982], and such a legislative rule has the force and

effect of law.” Syl. Pt. 5, Smith v. West Virginia Human Rights Comm’n, 216 W. Va. 2,

602 S.E.2d 445 (2004).

4. “’It is the duty of a court to construe a statute according to its true

intent, and give to it such construction as will uphold the law and further justice. It

is as well the duty of a court to disregard a construction, though apparently

i

warranted by the literal sense of the words in a statute, when such construction

would lead to injustice and absurdity.’ Syllabus Point 2, Click v. Click, 98 W. Va. 419,

127 S.E. 194 (1925).” Syl. Pt. 2, Chevy Chase Bank v. McCamant, 204 W. Va. 295, 512

S.E2d 217 (1998).

5. Under the “West Virginia Supreme Court of Appeals Public Campaign

Financing Program,” W. Va. Code § 3-12-1 et seq. (2014), where a candidate is

required to file a report electronically and is unable to do so for reasons beyond his

or her control, the West Virginia State Election Commission has discretion to grant a

hardship exemption to the candidate as to the form of the report and to extend the

deadline for filing of the report in its revised form.

6. Under the “West Virginia Supreme Court of Appeals Public Campaign

Financing Program,” W. Va. Code § 3-12-1 et seq. (2014), where a qualifying

contribution is made to a candidate in the form of an electronic payment, as

authorized by W. Va. Code § 3-123(13), an electronic receipt containing a unique

transaction identifier is a sufficient “signature” of the contributor within the

meaning of W. Va. Code § 3-12-9(b)(2),

ii

KEADLE, Acting Chief Justice:

Petitioner Brent D. Benjamin is a Justice of the Supreme Court of Appeals of

West Virginia and a candidate seeking re-election to the Court in the upcoming May

10, 2016, non-partisan election. Although Justice Benjamin began his election

campaign as a “traditional candidate,” i.e., a candidate financed by contributions

from supporters, he later made the decision to enter the West Virginia Supreme

Court of Appeals Public Campaign Financing Program, W. Va. Code § 3-12-1 et seq.,

and filed his formal Declaration of Intent to do so on September 11, 2015.

Thereafter, Justice Benjamin became a “participating candidate” under the Act.

On February 10, 2016, the West Virginia State Elections Commission (“the

Commission”) certified Justice Benjamin’s campaign for public funding under the

Act, overruling a number of challenges filed by Respondent Elizabeth D. Walker, a

traditional candidate also seeking election to the Court.

Pursuant to the West Virginia Administrative Procedures Act, W. Va. Code §

29A-5-1 et seq., Respondent Walker appealed the Commission’s decision to the

Circuit Court of Kanawha County, which ruled in favor of Walker on all issues and

held that “[t]he SEC’s certification of Justice Benjamin was clearly erroneous and

must be REVERSED because it directly violated Walker’s constitutional rights to free

speech and substantive due process under the First and Fourteenth Amendments of

the United States Constitution.” This appeal followed.

1

After thorough review of the record Appendix, the parties’ briefs and oral

arguments, and the applicable law, we reverse the judgment of the court below and

reinstate the decision of the Commission certifying Justice Benjamin.

I. FACTS AND PROCEDURAL HISTORY

West Virginia Code § 3-12-1 et seq. (2014), the “West Virginia Supreme

Court of Appeals Public Campaign Financing Program” (“the Act”), was enacted by

the West Virginia Legislature to “protect the Constitutional rights of voters and

candidates from the detrimental effects of increasingly large amounts of money

being raised and spent to influence the outcome of elections, protect the impartiality

and integrity of the judiciary, and strengthen public confidence in the judiciary….”

W. Va. Code § 3-12-1(10). Pursuant to the Act as amended in 2013, there are now

two types of candidates seeking a seat on the Supreme Court of Appeals of West

Virginia: traditional candidates who proceed under traditional campaign finance

rules, and “participating candidates” who apply to receive public financing under

the Act. Significantly, nothing in the statute prevents a traditional candidate from

becoming a participating candidate, which is what happened in this case when

Justice Benjamin filed his Declaration of Intent under the Act on September 11,

2015.1

1 The Declaration must be filed prior to the end of the “qualifying period,” see text

infra, which begins on September 1 of the year preceding the election year and ends

on the last Saturday in January of the election year. W. Va. Code § 3-12-3(13).

2

There are two distinct time periods under the Act. The first is the

“exploratory period,” W. Va. Code § 3-12-3(5), which is the period during which a

participating candidate may raise and spend contributions not to exceed $1,000.00

individually and not to exceed $20,000.00 in the aggregate, prior to the date on

which the candidate files his or her formal Declaration of Intent.2 The second

distinct time period under the Act is the “qualifying period,” W. Va. Code § 3-12-

3(14), beginning upon the filing of the Declaration and concluding on January 30,

during which a participating candidate must gather at least 500 “qualifying

contributions” from West Virginia voters. W. Va. Code § 3-12-9(c). Each such

contribution may be as little as $1.00, but can in no event exceed $100.00. W. Va.

Code § 3-12-9(a). The total amount of the qualifying contributions must be no less

than $35,000.00 and no more than $50,000.00. Id. If the aggregate amount of a

participating candidate’s contributions exceeds $50,000.00, the excess is paid over

into the Fund. Id.

During both the exploratory and qualifying periods, a participating

candidate is required to file monthly reports of contributions, expenditures and

obligations “along with all receipt for contributions received during the prior

month…,” W. Va. Code § 3-12-13(b), such reports to be filed electronically with the

Secretary of State. Id. As previously set forth, Justice Benjamin was a traditional

candidate until September 11, 2015, when he filed his Declaration of Intent and

became a participating candidate, and therefore had never been obligated to file any

2The Declaration may be filed anytime between September 1 of the year prior to the

election and January 30 of the election year.

3

reports of contributions since his campaign was not governed by the Act. When he

attempted to file his first such exploratory contributions report on October 1, 2015,

together with his first qualifying contributions report, he discovered that the

software utilized by the Secretary of State would not accept the former filing – a

“computer glitch,” as the Secretary of State’s counsel characterized it before this

Court.3 Justice Benjamin’s representative was assured that since he had in fact

received no exploratory contributions in September, there was nothing for him to

report in October under W. Va. Code § 3-12-13(b); and that all of the exploratory

contributions he had received prior to becoming a participating candidate would be

reported in the final accounting due two business days after the close of the

qualifying period. 4

After a participating candidate has collected the requisite number and

amount of qualifying contributions, he or she applies to the Commission to be

certified to receive public financing. W. Va. Code § 3-12-10(a). The application must

include a sworn statement that the candidate has and will comply with all

requirements of the Program. Id. The application, as well as the sworn statement,

must be filed within two business days of the close of the qualifying period on

January 30. W. Va. Code of State Rules §§ 146-5-6.1 & 6.2. In this regard, since

3 There was never any problem with the filing of Justice Benjamin’s participating

contributions reports, which were duly filed on a monthly basis beginning October

1, 2015.

4 These facts are reflected in an exchange of e-mails contained in the Appendix, and

were confirmed by the Secretary of State in the Commission proceedings.

4

January 30, 2016, fell on a Saturday, the second business day was Tuesday, February

2, 2016.

On February 2, 2016, Justice Benjamin filed his application and sworn

statement, as well as his summary of “[a]ll qualifying contributions received and

funds expended or obligated during the qualifying period together with copies of

any receipts not previously submitted for qualifying contributions.” W. Va. Code § 3-

12-13(c)(2). He did not, however, file his final report of all exploratory

contributions received prior to becoming a participating candidate, W. Va. Code § 3-

12-13(c)(1), because once again, the Secretary of State’s computer system

experienced a “glitch” and would not accept the filing. Thereafter, Justice Benjamin

sought and was granted a hardship exemption and was permitted to file this final

report in paper form on February 8, 2016.

On February 10, 2016, following multiple challenges filed by

Respondent Walker and four lengthy hearings held by the Commission, the

Commission certified Justice Benjamin for receipt of public funding under the Act.

There are three specific provisions in the Act that are at issue in Walker’s

challenges:

First, W. Va. Code §§ 3-12-8(d) & 3-12-13(b), which require a participating

candidate to file monthly reports of all exploratory and qualifying contributions

received during the immediately preceding month;

5

Second, W. Va. Code § 3-12-13(c)(1), which requires a participating

candidate to file a Final Summary Exploratory Financial Report no later than two

business days after the close of the qualifying period; and

Third, W. Va. Code § 3-12-9(b)(2), which requires that every qualifying

contribution to a candidate be acknowledged by a receipt that includes, inter alia,

“the contributor’s signature.”5

With respect to the first statute, Respondent Walker contends that

Justice Benjamin was required to file monthly reports of exploratory contributions

from the outset of his campaign, or at the latest from and after October 1, 2015, and

that his failure to do so disqualifies him from receiving public funding under the Act.

With respect to the second statute, Respondent Walker contends that Justice

Benjamin was required to file his Final Summary Exploratory Financial Report on or

before February 2, 2016, and that although the Commission might have the

authority to grant him a hardship exemption as to the form of the filing (i.e., allow

him to submit his report on paper), it had no discretion to grant him an extension of

the date for filing. With respect to the third statute, Respondent Walker contends

that none of the electronic contributions made to Justice Benjamin’s campaign are

valid because the electronic receipts for these contributions do not include a written

signature.

5 Respondent Walker challenged hundreds of Justice Benjamin’s contributions on

other grounds, and often on multiple grounds; but as discussed infra, the only

ground raised on appeal was the lack of a signature on electronic contribution

forms.

6

On appeal, the circuit court agreed with all of Respondent Walker’s

arguments, concluding that the Commission was clearly erroneous in its resolution

of all three issues and that Respondent Walker’s constitutional rights had been

violated as a result.

II. STANDARD OF REVIEW

This is an administrative appeal and our review is governed by the

same statutory standard that applied to the circuit court’s consideration of this

matter. As set forth in syllabus point one of Muscatell v. Cline, 196 W. Va. 588, 474

S.E.2d 518 (1996): “On appeal of an administrative order from a circuit court, this

Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a)

and reviews questions of law presented de novo; findings of fact by the

administrative officer are accorded deference unless the reviewing court believes

the findings to be clearly wrong. “

We further advised in Muscatell that “[i]n cases where the circuit court

has amended the result before the administrative agency, this Court reviews the

final order of the circuit court and the ultimate disposition by it of an administrative

law case under an abuse of discretion standard and reviews questions of law de

novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).

7

III. DISCUSSION

Standing

As a threshold matter, we conclude that under the specific facts of this

case, Respondent Walker has been “adversely affected” by the Commission’s

decision, a prerequisite for standing to appeal under the Administrative Procedures

Act, W. Va. Code § 29A-5-4(a), and the West Virginia Supreme Court of Appeals

Public Financing Program, W. Va. Code § 3-12-10(i).

In this case, as in the companion case of Wooten v. Walker, et al., No.

16-0226 (W. Va. filed April 19, 2016):

Respondent Walker frames the argument as one involving “the

fundamental and sacred constitutional rights of free speech and

substantive due process…,” but there is very little meat on these

constitutional bones. This Court has held that “speech is chilled

‘when an otherwise willing speaker is prevented from speaking,

or cajoled into no longer speaking, by government conduct[,]’”

Men and Women Against Discrimination v. The Family Services

Protection Board, 229 W. Va. 55, 62, 725 S.E.2d 756, 763 (2011),

and it would be a far stretch to conclude that the certification

of [Justice Benjamin] for public funding in any way abridges or chills

Respondent Walker’s free speech rights. She is as free now as she

was prior to February [10], 2016, when the Commission certified

J[ustice Benjamin] for public financing, to conduct her campaign and

articulate the reasons she believes herself to be a candidate

worthy of support at the ballot box.

In any event, “[i]nasmuch as this case may be decided

on statutory grounds, this Court need not address the constitutional

issue.” Hudson v. Bowling, 232 W. Va. 282, 291 n. 13, 752 S.E.2d 313,

322 n. 13 (2013), citing Lee Trace, LLC v. Raynes, 232 W. Va. 183,

191, 751 S.E.2d 703, 711 (2013). Simply put, in this case Respondent

Walker was a party to the proceedings held before the Commission,

and the Commission’s decision at issue in this case was made as

a direct result of her challenges to the Benjamin campaign’s

certification. Under these circumstances, we can perceive of no

8

basis on which to conclude that Respondent Walker has no

first-party standing to appeal from the denial of those challenges.

Wooten, Slip Opinion at 4-5

.

Monthly Reports

The court below held as a matter of law, citing W. Va. Code § 3-12-3(5),

that Justice Benjamin’s “exploratory period” began no later than February 18, 2015,

and ended on September 11, 2015, when he filed his Declaration of Intent. The

court further held, citing W. Va. Code § 3-12-13(b), that accordingly Justice

Benjamin was required to file monthly exploratory reports throughout this period,

up through and including October 1, 2015. Finally, the court held, citing W. Va. Code

§ 3-12-10(b)(5), that because Justice Benjamin did not file any of these monthly

exploratory reports, he could not be certified for public funding since he had not

“met all other requirements of this article….” An examination of the cited provisions

reveals that the court completely misapprehended the specific language of the

relevant statutes, and that the court apparently made, sub silentio, a finding of fact

that is completely unsupported in the record.

We begin with W. Va. Code § 3-12-3(5), which provides:

“Exploratory period” means the period during which a participating

candidate may raise and spend exploratory contributions to examine

his or her chances of election and to qualify for public campaign

financing under this article. The exploratory period begins on January 1

the year before the election in which the candidate may run for Justice

of the Supreme Court of Appeals and ends on the last Saturday in

January of the election year.

9

In the instant case, Justice Benjamin represented to the Commission, to the circuit

court, and to this Court, that until September 11, 2015, when he filed a Declaration

of Intent, he was not “attempting to be certified in accordance with [the Act]” and

was therefore not a participating candidate as that term is defined in W. Va. Code § 3-

12-3(11).

We now examine W. Va. Code § 3-12-13(b), which provides:

During the exploratory and qualifying periods, a participating

candidate or his or her financial agent shall submit, on the first

of each month, a report of all exploratory and qualifying

contributions along with their receipts and an accounting of all

expenditures and obligations received during the immediately

preceding month.

In the instant case, since Justice Benjamin became a participating candidate on

September 11, 2015, he was required to file a report on October 1, 2015, of any

exploratory and qualifying contributions he received in September, the

“immediately preceding month.” The record is undisputed, however, that Justice

Benjamin did not receive any exploratory contributions in September, and therefore

he had none to report, all of which the Secretary of State confirmed in an exchange

of e-mails with the Benjamin campaign. 6

6 On October 1, 2015, Justice Benjamin did in fact attempt to electronically file a

report showing the balance of exploratory contributions received by him prior to

September 11, 2015, when he became a participating candidate. However, the

computer software utilized by the Secretary of State would not allow him to do so.

This is what precipitated the exchange of e-mails, in which employees of the

Secretary confirmed that the exploratory contributions received while Justice

10

The court below acknowledged that Justice Benjamin had not received any

exploratory contributions in September, but concluded that on October 1, 2015, he

was nonetheless required to file after-the-fact monthly exploratory reports for

January through August. In support of this conclusion, the court wrote that applying

W. Va. Code § 3-12-13(b) as written “would undermine the letter and intent of W.

Va. Code § 3-12-8(d).” This conclusion is puzzling, as the latter statute’s

requirement that “a participating or certified candidate” file monthly reports

showing exploratory contributions received “during the prior month” is no different

in practical effect from the former statute’s requirement that “a participating

candidate” file monthly reports showing exploratory contributions received “during

the immediately preceding month.” The court’s conclusion also ignores the plain

language of W. Va. Code § 3-12-13(c)(1), which anticipates precisely the type of

situation that arose in this case and ensures that at the end of the day, there will be a

full and final accounting of all contributions:

(c) No later than two business days after the close of the qualifying

period, a participating candidate or his or her financial agent shall

report to the Secretary of State on appropriate forms a summary of:

(1) All exploratory contributions received and funds expended or

obligated during the exploratory period together with copies of any

receipts not previously submitted for exploratory contributions[.]

(Emphasis supplied)

Benjamin was still a traditional candidate would be reported in the final report and

accounting due on February 2, 2016. See W. Va. Code § 3-12-13(c).

11

In summary, until September 11, 2015, when Justice Benjamin became a

“participating candidate,” neither W. Va. Code § 3-12-3(5), the statutory provision

defining an “exploratory period,” nor W. Va. Code §§ 3-12-8(d) & 3-12-13(b), the

provisions governing monthly exploratory reports, applied to him. The contrary

conclusions of the court below were clearly erroneous. Further, to the extent that

the court below apparently believed, and therefore found sub silentio, that Justice

Benjamin always intended to seek public funding but waited as long as possible

before making it official, there is not one shred of evidence in this voluminous

record to support such a finding and it cannot serve as a basis for the court’s rulings.

The Final Summary Exploratory Financial Report

One of the many documents required to be filed no later than the

second business day after the close of the qualifying period is the Summary

Exploratory Financial Report. W. Va. Code § 3-12-13(c)(1). This report is required

to be filed electronically with the Secretary of State. Id. On February 2, 2016, when

Justice Benjamin attempted to file his final report, as he had been instructed to do by

the Secretary of State, see n. 5, supra, he discovered that the Secretary’s software

contained yet another “glitch” that would not allow the report to be filed.

Accordingly, the Benjamin campaign sought and was granted a hardship exemption

allowing it to file the final report in paper form on or before February 10, 2016. In

granting the exemption, the Commission specifically found that Justice Benjamin

was unable to file his report on February 2, 2016, for reasons beyond his control.

12

The circuit court’s subsequent conclusion that Justice Benjamin was not

entitled to a hardship exemption is both factually insupportable and legally

erroneous. First, the Commission’s determination that Justice Benjamin’s inability

to file was out of his control was supported by substantial evidence in the record,

including testimonial statements by Secretary of State employees confirming the

State’s technical problems with its software. Under this Court’s precedents, the

Commission’s determination was therefore binding on appeal. “Neither this Court

nor the circuit court may supplant a factual finding of the Commission merely by

identifying an alternative conclusion that could be supported by substantial

evidence.” In re Queen, 196 W. Va. 442, 446, 473 S.E.2d 483, 487 (1996) (emphasis

supplied); see also Webb v. W. Va. Bd. of Med., 212 W. Va. 149, 569 S.E.2d 225 (2002).

The court below exceeded the permissible scope of review in ignoring the

Commission’s factual finding and concluding that Justice Benjamin’s failure to timely

file his final report was his own fault – a finding that could not stand even if the

court were otherwise entitled to make it.7

7 The court took the view that because the Secretary’s software wouldn’t accept a

monthly exploratory report from Justice Benjamin, he should have anticipated that

it wouldn’t take a final exploratory report either. There are several problems with

this analysis. First, the monthly report and the final report are two entirely separate

documents, and problems with one do not constitute notice that there will be

problems with the other. Second, the exchange of e-mails between the Benjamin

campaign and the Secretary’s employees specifically assured Justice Benjamin that

the problems with his monthly report would be resolved with the filing of his final

report. Third, we do not think it is incumbent upon a candidate to solve the

Secretary of State’s technical issues; to the extent that anyone was on notice that the

Secretary’s software was inadequate and needed to be fixed, it was the Secretary

herself.

13

Second, the court erred in concluding that pursuant to W. Va. Code §§ 3-12-

8(d) & 3-12-13(c)(1), the Commission had no authority to grant a hardship

exemption as to the timing of a filing, only as to its form. In this regard, we find that

the court’s reasoning is hairsplitting at best and sophistic at worst. Justice Benjamin

could not have discovered the problem with the Secretary’s software until February

2, 2016, when he attempted to electronically file his final exploratory report. For

the Commission to grant an exemption as to form, i.e., an exemption allowing the

Benjamin campaign to prepare a paper filing, without granting an extension of time

for the paper filing to be prepared, would be to render the exemption meaningless.

It is well established that there are “certain circumstances in which an

agency may perform a function that is implied, but not specifically permitted, by

statute…,” and that an agency’s authority includes “’such other powers as are

necessarily or reasonably incident to the powers granted.’” Walker v. W. Va. Ethics

Comm’n, 201 W. Va. 108, 121, 492 S.E.2d 167, 180 (1997), citing Walter v. Ritchie,

156 W. Va. 98, 108, 191 S.E.2d 275, 281 (1972). We believe that the circumstances

presented in this case are such as to require application of this principle. Although

Respondent Walker argues that the circuit court’s interpretation of the law should

be upheld because it does not specifically contradict any language contained in the

statute, this Court has held that “’[i]t is the duty of a court to construe a statute

according to its true intent, and give to it such construction as will uphold the law

and further justice. It is as well the duty of a court to disregard a construction,

though apparently warranted by the literal sense of the words in a statute, when

14

such construction would lead to injustice and absurdity.’ Syllabus Point 2, Click v.

Click, 98 W. Va. 419, 127 S.E. 194 (1925).” Syl. Pt. 2, Chevy Chase Bank v. McCamant,

204 W. Va. 295, 512 S.E2d 217 (1998).

Accordingly, we hold that under the “West Virginia Supreme Court of

Appeals Public Campaign Financing Program,” W. Va. Code § 3-12-1 et seq. (2014),

where a candidate is required to file a report electronically and is unable to do so for

reasons beyond his or her control, the West Virginia State Election Commission has

discretion to grant a hardship exemption to the candidate as to the form of the

report and to extend the deadline for filing of the report in its revised form.

Qualifying Contributions

Pursuant to W. Va. Code § 3-12-10(g) and W. Va. Code of State Rules § 146-5-

7.1, “[a]ny person may challenge the validity of any contribution listed by a

participating candidate by filing a written challenge with the State Election

Commission setting forth any reason why the contribution should not be accepted

as a qualifying contribution.” Respondent Walker took full advantage of these

provisions, filing challenges to the vast majority of Justice Benjamin’s contributions,

more than 500 challenges in all, on a variety of grounds including: receipts not on

forms specifically provided for the purpose; receipts missing certain information;

contributors weren’t registered voters; and paper receipts for electronic

contributions did not contain the contributors’ signatures.

15

At its first hearing held on February 3, 2016, the Commission spent

seven hours going through the first group of 163 challenges one by one, upholding

some challenges and denying others. Seven of the challenges involved electronic

contributions, most made through PayPal, and the Commissioners struggled to

determine whether the identifying account numbers on the computerized receipts

could be deemed to be “signatures” within the meaning of W. Va. Code § 3-12-

9(b)(2), which requires, inter alia, that “(b) Each qualifying contribution shall be

acknowledged by a written receipt that includes: * * * (2) For qualifying

contributions of $25 or more, the contributor’s signature….” Ultimately, the

Commissioners sustained Respondent Walker’s challenges to six of the seven

electronic contributions.

At its next hearing held the following day, the Commission reversed

its earlier decisions with respect to six of the electronic contributions, based on

additional information submitted by the Benjamin Campaign. It then declined to

consider and rule upon 365 additional challenges filed by Respondent Walker,

including approximately 185 challenges to electronic contributions, finding that

Walker had failed to carry her burden of persuasion by failing to present any

evidence in support of the additional challenges.

The parties devote many pages of their briefs to the issue of whether

Respondent Walker waived her right to raise the issue of electronic contributions on

appeal, by failing to provide support for her challenges in the proceedings before the

16

Commission. The facts underlying the waiver argument are unique and

considerations of equity are at play in this case. The Commission correctly found

that W. Va. Code of State Rules § 146-5-7.3 requires “[t]he challenger [to] attach any

relevant evidence, affidavits, or notarized statements to the [challenge] form…,” and

that Respondent Walker had not done so. The problem in this case is that the

Commission had not enforced or even mentioned this rule on the first day of

proceedings; the Secretary of State had taken it upon herself to gather all of the

documentation relevant to the initial group of challenges and bring it to the hearing,

and the Commission dutifully considered 163 challenges despite the fact that the

Secretary, not Respondent Walker, had provided the evidence. It wasn’t until the

end of that first day, when everyone realized that there were 365 more challenges

still to come, that the Secretary abruptly decided ‘this isn’t my job.’ Respondent

Walker’s representative was specifically told that he would have to bring any

relevant documentation to the hearing the next day, and it is undisputed that he did

not do so and did not proffer any explanation. Accordingly, since the Secretary

hadn’t brought any documentation either, the Commission declined to consider the

second-day challenges because it had nothing to look at.

Although this Court believes that the Commission was correct in

concluding that W. Va. Code of State Rules § 146-5-7.3 required Respondent Walker,

not the Secretary of State, to provide any documentation required to evaluate the

challenges, we also believe it was unfair for the Secretary to undertake the

responsibility at the outset and then abruptly shift course at the end of the first full

17

day of proceedings. The Secretary’s actions were particularly unfair in light of the

extremely short time frames set forth in § 146-5-7.3, which in this case required

Respondent Walker’s challenges to be filed on the same day that Justice Benjamin’s

final report was filed, and argued the following day.

Accordingly, we find that on administrative appeal, the court below was

within its discretion to address the electronic contribution issue on the merits,

notwithstanding Respondent Walker’s failure to make a proper record that would

have allowed the Commission to make a ruling in the first instance. Syl. Pt. 2,

Muscatell, supra. We turn now to the substantive issue.

We note at the outset of our discussion that when the dust had cleared

in the proceedings before the Commission, the Commissioners found that Justice

Benjamin had “obtained the required number, which is five hundred minimum, and

amount, which is thirty-five thousand dollars minimum, of qualifying

contributions….” W. Va. Code ∞ 3-12-9(a) & (d), W. Va. Code of State Rules § 146-5-

5.1-5.3. The only issue Respondent Walker raised on appeal with respect to

qualifying contributions involved Justice Benjamin’s electronic contributions,

specifically, whether electronic receipts are “signatures” under W. Va. Code § 3-12-

9(b)(2). This issue is dispositive of the case, since absent the 192 electronic

contributions, Justice Benjamin would not have the requisite 500 qualifying

contributions which he was statutorily required to obtain pursuant to W. Va. Code §

3-12-9(a) before the end of the qualifying period.

18

The court below concluded that electronic signatures were not

sufficient under the Act because, in the court’s words, “handwritten signatures are

needed to investigate and verify credibility of the donor….” The court cited no

authority for this proposition, and indeed there is none. Nothing in the Act imposes

a duty on anyone to “investigate and verify credibility” of contributors by using the

signatures on their voters registration cards as exemplars and then comparing the

signatures on their contribution receipts. Further, such an analysis is a practical

impossibility; under the Act and the rules, the time frames for challenges are not

sufficient for anyone to perform close to 200 handwriting analyses, and none of the

Commissioners has the competence to perform it in any event, none being

handwriting experts. As Respondent Commissioner Collias stated when this issue

arose on the first day of hearings:

Well, he [a contributor] could have registered to vote thirty, forty

years ago when he was eighteen, so that signature could be thirty

or forty years old on the one, and the other it was a few months

ago. I mean we don’t have the competency to be declaring that the

signatures are from different people. They may look different, but

maybe the person signs different things differently. I mean, I don’t

know, but I’m not willing to go there.

Finally, and critically, the court below failed to consider that its decision

invalidating electronic signatures also invalidated, as a practical matter, W. Va. Code

§ 3-12-3(13), which provides that a “’[q]ualifying contribution’ means a

contribution received from a West Virginia registered voter … in the form of cash,

check or money order … or in the form of an electronic payment or debit or credit

card payment….” (Emphasis supplied).

19

We need not resolve the issue on these grounds, however, because the

court below plainly erred in ignoring the effect of the “Uniform Electronic

Transactions Act” [“the UETA”], W. Va. Code § 39A-1-1 et seq. (2002), on this case.

Forty-seven states have adopted the UETA,8 which establishes that in all situations

not specifically exempted, such as some transactions under the Uniform Commercial

Code and the “creation and execution of wills, codicils or testamentary trusts…,” W.

8 Ala. Code §§ 8-1A-1 to -20 (LexisNexis Supp. 2002); Alaska Stat. §§ 09.80.010- .195

(2008); Ariz. Rev. Stat. Ann. §§ 44-7001 to -7051 (2003 & Supp. 2009); Ark. Code

Ann. §§ 25-32-101 to -121 (2002 & Supp. 2001); West’s Ann. Cal. Civ. Code §§

1633.1-.17 (West Supp. 2010); Colo. Rev. Stat. Ann. §§ 24-71.3-101 to -121 (Wet

2008 & Supp. 2009); Conn. Gen. Stat. Ann. §§ 1-266 to 286 (Wet 2007 & Supp.

2009); Del. Code Ann. Tit. 6, §§ 12A-101 to -117 (2005 & Supp. 2008); Fla. Stat. Ann.

§§ 668.50 (West 2004 & Supp. 2010); Haw. Rev. Stat. §§ 489E-1 to -19 (LexisNexis

2009); Idaho Code Ann. §§ 28-50-101 to -120 (2005); Ind. Code Ann. §§ 26-2-8101

to -302 (LexisNexis 2005 & Supp. 2009); Iowa Code Ann. §§ 554D.101 - .124 (West

2001 & Supp. 2010); Kan. Stat. Ann. §§ 16-1601 to -1620 (2000); Ky. Rev. Stat. Ann.

§§ 369.101 - .120 (West 2006 & Supp. 2009); La. Rev. Stat. Ann. §§ 9:2601 to -2620

(2005 & Supp. 2010); Me. Rev. Stat. Ann. Tit. 10, §§ 9401 to -9507 (2009); Md. Code

Ann., Com. Law §§ 21-101 to -120 (LexisNexis 2005 & Supp. 2009); Minn. Stat. Ann.

§§ 325L.01 - .19 (West 2000); Mass. Ann. Laws ch. 110G §§ 1-18 (LexisNexis 2005 &

Supp. 2009); Mich. Comp. Laws Ann. §§ 450.831 - .849 (West 2002 & Supp. 2009);

Miss. Code Ann. §§ 75-12-1 to -39 (West 2004 & Supp. 2009); Mo. Ann Stat. §§

432.200 - .295 (West Supp. 2010); Mont. Code Ann. §§ 30-18-101 to -118 ((2008);

Neb. Rev. Stat. Ann. §§ 86-612 to -643 (LexisNexis 2007); Nev. Rev. Stat. §§ 719.010

-.350 (2009); N.H. Rev. Stat. Ann. §§ 294-E:1-20 (Supp. 2009); N.J. Stat. Ann. §§

12A:12.1 to -26 (West 2004 & Supp. 2009); N.M. Stat. §§ 14-16-1 to 19 (2003 &

Supp. 2009); N.C. Gen. Stat. §§ 66-311 to -339 (2009); N.D. Cent. Code §§ 9-16-01 to

-18 (2006 & Supp. 2009); Ohio Rev. Code Ann. §§ 1306.1-.23 (LexisNexis 2009);

Okla Stat. Ann. Tit. 12, §§ 15-101 to -121 West 2001 & Supp. 2010); Or. Rev. Stat.

Ann. §§ 84.001-.061 (West 2003 & Supp. 2009); 73 Pa. Cons. Stat. §§ 2260.101-.903

(West 2008 & Supp. 2009); R.I. Gen. Laws §§ 42-127.1-1 to -20 (2006); S.C. Code

Ann. §§ 26-6-10 to -210 (2007); S.D. Codified Laws §§ 53-12-1 to -50 (2004 & Supp.

2009); Tenn. Code Ann. §§ 47-10-101 to -123 (2001 & Supp. 2009); Tex. Bus. & Co.

Code Ann. §§ 322.001-.021 (Vernon 2009); Utah Code Ann. §§ 46-4-101 to -503

West 2004 & Supp. 2009); Vt. Stat. Ann. tit. 9 §§ 270-290 (2006); Va. Code Ann. §§

59.1-479 to -497 (2006 & Supp. 2009); W. Va. Code §§ 39A-1-1 to -17 (LexisNexis

2004 & Supp. 2009); Wis. Stat. Ann. §§ 137-11-.26 (West 2009); Wyo. Stat. Ann. §§

40-21-101 to -119 (2009).

20

Va. Code § 39A-1-3(b)(1) & (2), electronic and non-electronic records are equal.

The language of the UETA is clear and unambiguous: W. Va. Code § 39A-1-7(d)

provides that “[i]f a law requires a signature, an electronic signature satisfies the

law.” In turn, an electronic signature is defined under the Act as “an electronic

sound, symbol or process attached to or logically associated with a record and

executed or adopted by a person with the intent to sign the record.” W. Va. Code §

39A-1-2(8). The Act unequivocally instructs that “[i]n a proceeding, evidence of a

record or signature may not be excluded solely because it is in electronic form.” W.

Va. Code § 39A-1-13.

Not surprisingly, most of the case law which has developed under the

UETA deals with its application to contract disputes and commercial transactions.

E.g., Shroyer v. New Cingular Wireless Services, Inc., 2007 U.S. App. LEXIS 1950 (9th

Cir. 2007) (electronic signature can be created over the phone using an IVR

process); Johnson v. Astrue, 2009 U.S. Dist. LEXIS 130558 (E.D. Cal., June 18, 2009)

(physician’s digital signature satisfied Social Security regulation which required that

“[a]ll consultative examination reports will be personally reviewed and signed by

the medical source who actually performed the examination”); Alliance Laundry

Systems, LLC v. Thyssenkrupp Materials, NA, 570 F. Supp.2d 1061 (E.D. Wisc. Aug. 5,

2008) (electronic signature could satisfy the UCC’s statute of frauds signature

requirement for the sale of goods priced at $500.00 or more); Stevens v. Publicis, S.A.,

50 A.D.3d 253 (N.Y. App. Div. 2008), leave to appeal dismissed, 892 N.E.2d 399

(2008) (series of e-mails between contracting parties, with the parties’ names typed

21

therein, satisfied the requirements of an enforceable “no oral modifications” clause

in contract); Barwick v. Government Employee Insurance Co., Inc., 2011 Ark. 128

(Supreme Court of Arkansas 2011) (insured’s electronic signature on computer

application qualifies as a written rejection of benefits); Kluver v. PPL Montana, LLC,

368 Mont. 101, 293 P.3d 817 (2012) (UETA applied to memorandum of

understanding between landowners and electric power companies). The disputes

in these cases are generally evidentiary in nature, i.e., whether the electronic

signature is actually attributable to a certain individual, or whether an individual

intended to be bound by his or her electronic signature.

We have located only two cases in which the courts considered

electronic signatures in the context of election-related laws. In Anderson v. Bell,

2010 Utah 47, 234 P.3d 1147 (2010), Mr. Anderson had submitted a petition

seeking to be placed on the ballot as an unaffiliated candidate in the upcoming Utah

gubernatorial race. Utah law required that an unaffiliated candidate collect the

signatures of 1,000 registered voters before his or her name could be placed on the

statewide ballot. Mr. Anderson’s petition contained two types of signatures:

handwritten signatures, and electronic signatures entered through a computer

website. The petition was rejected by the Office of the Lieutenant Governor of Utah

on the ground that the electronic signatures did not constitute “signatures” as

required under the Utah Election Code.

22

The Utah Supreme Court reversed, holding that electronic signatures

met the requirements of the Utah Election Code. Construing a provision identical to

W. Va. Code § 39A-1-7(d), “[i]f a law requires a signature, an electronic signature

satisfies the law…,” the Court held:

This language could not be more straight forward … Mr. Anderson

has thus done exactly what section 46-4-201 permits. He used

electronic signatures to satisfy the Election Code’s demand that

unaffiliated candidates collect and submit the signatures of 1,000

registered voters in order to get his name onto the statewide ballot.

Anderson, 234 P.3d at 1153.

Anderson was overridden by the Utah Legislature the following year, by

amendment to the Election Code specifically exempting the “signature” requirement

for petitions submitted by independent candidates seeking to be placed on the

ballot from the ambit of Utah’s UETA.

In Ni v. Slocum, 196 Cal. App.4th 1636 (Cal. App. 1st Dist. 2011), a

number of registered voters had signed petitions seeking to put a Proposition (for

legalization of marijuana) on the ballot. Some of the signatures were electronic, and

the issue before the court was whether the California Election Code’s requirement

that a voter “personally affix” his or her signature was satisfied by electronic

signature. The court held that the Election Code required a “wet signature,” not an

electronic signature, for the following reasons:

1. The law governing Propositions requires that every voter’s signature on

a petition be witnessed and thereafter certified by a “circulator,” a requirement that

23

could not be met where voters utilized their phones, tablets and computers to sign

the petition online;

2. In fact, allowing electronic signatures on a petition would completely

eliminate the function of the “circulator,” thus substantively changing the law;

3. The law requires election officials to verify the residence of every voter

signing a petition, which would be impossible where the voter signed the petition

electronically since electronic receipts contain identifying information but not a

residential address;

4. The law requires more than a voter’s signature; it requires that the voter

“personally affix” that signature, words that have no meaning or application unless

the voter has a pen in his or her hand; and

5. The law specifically states that its provisions are mandatory

“notwithstanding any other provision of law…,” which means that the law governing

Propositions, not the Uniform Electronic Transaction Act, controls.

Although we agree with much of the reasoning of the Ni court, we find that

the case is wholly inapposite to the case at bar. West Virginia Code § 3-12-1 et seq.

contains no requirement that signatures be witnessed and certified by anyone, let

alone a “circulator” whose specific duties are set forth in the law. Our law requires

only the signature of a contributing voter, not that the voter “personally affix” that

signature. Nothing in the law requires the Election Commission to verify every

24

contributor’s residence, in the absence of a challenge;9 and indeed, as set forth at pp.

__, supra, the law does not give the Commissioners enough time to undertake such a

task even if they were inclined to do so. There is no language in § 3-12-1 et seq. that

would make its provisions mandatory “notwithstanding any other provision of law,”

specifically, the Uniform Electronic Transactions Act.

Finally, and fundamentally, the West Virginia Supreme Court Public

Financing Program, W. Va. Code § 3-12-1 et seq., specifically seeks “to encourage

participation in the program….,” Wooten v. Walker, et al., No. 16-0226 (W. Va. filed

April 19, 2016), Slip Opinion at 12 (emphasis supplied); and consistent therewith,

the Act permits contributions to be made electronically, W. Va. Code § 3-12-3(13).

For this Court to effectively read the latter provision out of the Act by finding that an

electronic signature is not a signature under W. Va. Code § 3-12-9(b)(2) would

discourage many participating contributions. Absent specific statutory language or

compelling policy reasons, we decline to engage in such a crabbed reading of § 3-12-

9(b)(2).

In this case, as in Anderson, the statutory provisions at issue could not be

more straightforward.10 Additionally, in this case all considerations of policy

9 In the event of a challenge, the challenger, not the Commission or the Secretary of

State, is required to put forth evidence that the address shown on a receipt does not

match the contributor’s address in the election rolls. At that point, the

Commission’s duty would be to rule on the challenge.

10 The fact that Anderson was subsequently overridden by new legislation does not

indicate that the court’s reasoning was flawed. The Utah Legislature, apparently

intending to make it more difficult for non-affiliated candidates to appear on the

25

militate in favor of application of UETA to the issue at hand. Finally, in this case

there are no evidentiary issues of intent or authenticity; indeed, it is undisputed in

the record that the electronic contribution receipts submitted by Justice Benjamin

contain unique transaction identifiers allowing the contributors to be identified.11

Accordingly, we hold that under the “West Virginia Supreme Court of Appeals Public

Campaign Financing Program,” W. Va. Code § 3-12-1 et seq. (2014), where a

qualifying contribution is made to a candidate in the form of an electronic payment,

as authorized by W. Va. Code § 3-12-3(13), an electronic receipt containing a unique

transaction identifier is a sufficient “signature” of the contributor within the

meaning of W. Va. Code § 3-12-9(b)(2),

In this case, Justice Benjamin submitted documentation evidencing 192

electronic qualifying contributions made to his campaign, such documentation

containing unique transaction identifiers tracing back to the respective contributors

and satisfying the definition of an electronic signature contained in W. Va. Code

§39A-1-2(8). Thus, the Commission correctly concluded that the Benjamin

campaign had obtained the requisite number of qualifying contributions and

otherwise satisfied all statutory requirements to be certified for public funding

under the Act.

ballot, amended the Election Code to specifically exempt election laws from the

ambit of the UETA.

11 When Respondent Walker raised the “signature” issue, Justice Benjamin’s

campaign contacted a number of contributors and asked them to supplement their

electronic receipts with paper receipts containing pen-and-ink signatures. In the

limited time available, a number of contributors did so.

26

IV. CONCLUSION

For the foregoing reasons, the judgment of the Circuit Court of Kanawha

County is hereby REVERSED, and the decision of the West Virginia State Election

Commission is hereby reinstated in it entirety.

Reversed.

27