SER Natalie E. Tennant, WV Sec. of State v. Ballot Commissioners of Mingo Co. ( 2014 )

No. 14-0877 – State of West Virginia ex rel. Natalie E. Tennant, West Virginia Secretary
of State v. Ballot Commissioners of Mingo County, West Virginia; Jim Hatfield, as Clerk
of the Mingo County Commission and Member of the Ballot Commissioners of Mingo
County, West Virginia; Angie Browning, as Member of the Ballot Commissioners of
Mingo County, West Virginia; and Ramona Browning, as Member of the Ballot
Commissioners of Mingo County, West Virginia.
FILED
September 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benjamin, Justice, concurring:
I agree with the well-reasoned opinion in this matter. I write separately to
discuss a distinct but related issue: whether a county executive committee is able to fill a
ballot vacancy for a judicial position. Because judicial positions may, and generally do,
cover multi-county circuits, I submit that a county executive committee does not have the
legal ability to fill a ballot vacancy for a judicial election under the current West Virginia
Code.
At present there are twenty-seven family court circuits and thirty-one
circuit court circuits throughout the State. Most such circuits are multiple-county
circuits. Judgeships are not county positions; they are circuit positions. This is
significant when reading W. Va. Code § 3-5-19 (2007), which states that in cases of
ballot vacancies after a primary election, the position may be filled by the “executive
committee of the political party for the political division in which the vacancy occurs.”
(Emphasis supplied). Here, the county executive committee sought to fill a circuit, not a
1
county, position. In doing so, it sought to do something to which it has no legal
authority.
This Court addressed a similar issue in State ex rel. Butcher v. Manchin,
171 W. Va. 24, 297 S.E.2d 430 (1982), wherein this Court considered the proposed
filling of a ballot vacancy in the then Twenty-Sixth Delegate District, a multi-county
district, for the West Virginia House of Delegates. At that time the Twenty-Sixth
Delegate District was comprised of Nicholas and Webster Counties. No Republican
candidate had filed for election, and the petitioner in Butcher contacted the Republican
executive committees for both counties seeking to be nominated. The chairmen of both
committees agreed to this nomination, and forwarded Mr. Butcher’s name to the secretary
of state.1 Ultimately, relying upon an Attorney General opinion, the secretary of state
denied Mr. Butcher’s nomination because it did not come from the Republican “Delegate
District Committee.” Upon review, this Court denied Mr. Butcher’s petition seeking
mandamus, confirming that the authority of county executive committees is limited to
county positions. See also State ex rel. Baker v. Bailey, 152 W. Va. 400, 163 S.E.2d 873
(1968).
The nominating body herein was without proper legal authority to do what
it attempted to do. For this reason I concur in the opinion of this Court.
1
Though the political parties of this state may feel this process is burdensome,
West Virginia election law is specific on this point. Perhaps it is time to make the
statutory process simpler.
2