January 19, 2011
West Virginia Supreme Court Orders Special Election
A week after hearing oral argument on the petition for writ of mandamus to order an election for Governor, the state's highest court has granted the petition with respect to the Acting Governor, Earl Ray Tomblin (picured right).
In the 25 page opinion, the Justices
direct Respondent Tomblin, in fulfilling his role to act as governor during the current vacancy, to forthwith issue a proclamation fixing a time for a new statewide election for governor consistent with W. Va. Const., art. VII, § 16 and W. Va. Code § 3-10-2 (1967).
The court's syllabus provides its outline of the opinion:
1. “The 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.”
2. “Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.”
3. “Courts 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.”
4. “Words used in a state constitution, as distinguished from any other written law, should be taken in their general and ordinary sense.”
5. “As used in constitutional provisions, the word ‘shall’ is generally used in the imperative or mandatory sense.”
6. “The American constitutional system, under which West Virginia’s government is organized, W. Va. Const. art. 1, § 1, changed substantially the operative theory of sovereignty and identified the sovereign, whose will legitimizes authority, as the people.
7. Pursuant to W. Va. Const., art. VII, § 16, the period of time in which the duties of the governor shall be performed by a person who was not elected to the office of governor by the people in a statewide election shall not exceed one year.
8. Pursuant to W. Va. Const., art. VII, §16, whenever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new statewide election shall be held as soon as practicable and in compliance with the constitutional prescription that the office be assumed by an elected successor within one year of the date when the vacancy occurred.
9. The procedure established in the second paragraph of W. Va. Code § 3-10-2 regarding the holding of a new or special election to fill the vacancy in the office of governor is within the legislative prerogative and does not violate the State Constitution.
10. The Legislature may amend the procedure for providing for a new or special election if it deems it appropriate to do so; provided, however, any new procedure may not conflict with the Constitution which requires that all acts necessary to elect a governor shall be completed within one year of the vacancy in the office.
The West Virginia Supreme Court of Appeals' unanimous opinion was authored by Justice Brent Benjamin. Benjamin, of course, was the justice at the center of the controversy in Caperton v. Massey Coal Company, in which the United States Supreme Court decided that due process required Justice Benjamin to recuse himself from the appeal of the $50 million jury verdict although the CEO of the lead defendant had spent $3 million dollars (about 60% of the total contributions) supporting Benjamin's campaign for a seat on the WV court.
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