SER Browne v. Hechler
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IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
In Vacation
_________
No. 23637
_________
STATE OF WEST VIRGINIA EX REL.
HARRY BROWNE, JO JORGENSEN, AND THE
LIBERTARIAN NATIONAL COMMITTEE, INC.,
Relators
v.
KEN HECHLER, SECRETARY OF STATE,
Respondent
_______________________________________________________________
PETITION FOR A WRIT OF MANDAMUS
Writ Granted
_______________________________________________________________
Submitted: August 13, 1996
Filed: August 22, 1996
Robert M. Bastress
Morgantown, West Virginia
Attorney for Petitioners
Amie Langfitt Johnson
Assistant Attorney General
Charleston, West Virginia
Attorney for Respondent
JUSTICE CLECKLEY delivered the Opinion of the
Court.
SYLLABUS BY THE COURT
1. "The function of a proviso in a statute
is to modify, restrain, or conditionally qualify the preceding
subject to which it refers." Syl. pt. 2, State v.
Ellsworth J.R., 175 W. Va. 64, 331 S.E.2d 503 (1985).
2. Pursuant to W. Va. Code 3-5-23(a) (1986), the deadline for filing with the secretary of state the certificate and fee for a person seeking ballot access as a candidate for the office of president or vice-president as the nominee of a third-party otherwise qualifying for inclusion on the general election ballot by method other than primary election is the first day of August preceding the general election, and such persons are not required to file a declaration of candidacy pursuant to W. Va. Code 3-5-7 (1991).
Cleckley, Justice:
This election mandamus proceeding involves
interpretation of the statutory requirements for placement on the
general election ballot of third-party presidential and
vice-presidential candidates. The dispute arose after the
respondent rejected certificates and related filing fees
submitted by the petitioners Browne and Jorgensen as untimely.
The petitioners complain that the respondent has misinterpreted a
proviso contained in W. Va. Code 3-5-23(a) (1986).(1)
We agree with the petitioners and, therefore, grant a writ of
mandamus compelling the respondent to accept the petitioners'
certificates. Due to impending deadlines for ballot preparation,
we are issuing our decision by opinion while the Court is in
vacation.
The facts of this case are not in dispute. On October 4, 1995, the Libertarian Party filed with the respondent a petition informing him of its intention to place candidates for the office of president and vice-president on the 1996 general election ballot. On May 10, 1996, the Libertarian Party submitted over 20,000 signatures endorsing its nominating petition and the inclusion of its candidates on the general election ballot.(2) At its national convention which concluded on July 6, 1996, the Libertarian Party nominated petitioners Browne and Jorgensen as its candidates for president and vice-president. On July 10, 1996, the Libertarian Party tendered the $2,000 filing fee required, but the respondent informed the petitioners by letter dated the same day that their certificates and filing fee would not be accepted because a deadline of July 2, 1996, had expired. Later, on July 18, 1996, the Libertarian Party submitted a "Candidate's Certificate of Announcement for 1996 Elections" for both Browne and Jorgensen, but these were also rejected by the respondent.
The crux of the dispute between the parties involves interpretation of W. Va. Code 3-5-23(a) (1986) which provides:
Groups of citizens having no party organization
may nominate candidates for public office otherwise than by
conventions or primary elections. In such case, the candidate or
candidates, jointly or severally, shall file a declaration with
the secretary of state if the office is to be filled by the
voters of more than one county, or with the clerk of the circuit
court of the county if the office is to be filled by the voters
of one county or political subdivision thereof; such declaration
to be filed at least thirty days prior to the time of filing the
certificate provided by section twenty-four of this article:
Provided, That the deadline for filing the certificate for
persons seeking ballot access as a candidate for the office of
president or vice president shall be filed not later than the
first day of August preceding the general election. At the time
of filing of such declaration each candidate shall pay the filing
fee required by law, and if such declaration is not so filed or
the filing fee so paid, the certificate shall not be received by
the secretary of state, or clerk of the circuit court, as the
case may be.
The respondent's rejection of the petitioners'
certificates and fees is based upon the language of the statute
immediately preceding the proviso. Specifically, the respondent
contends that the declarations and fees were due on July 2, which
the respondent calculates by counting back thirty days from
August 1. The petitioners note, however, that the language relied
upon by the respondent does not mention the August 1 date, but
provides that the declaration is to be filed "at least
thirty days prior to the time of filing the certificate provided
by section twenty-four." W. Va. Code 3-5-24 (1963), provides
not for the filing of declarations by August 1, but rather
"not later than the day preceding the date on which the
primary election is held." The respondent argues, however,
that the United States Supreme Court decision in Anderson v.
Celebrezze, 460 U.S. 780 (1983) effectively prohibits states
from imposing deadlines for certifying third-party presidential
candidates earlier than August 1, and that such date should be
read into W. Va. Code 3-5-24 (1963).(3)
As the respondent concedes, there is
considerable ambiguity regarding the meaning of the language
preceding the proviso, the majority of which results from the use
of the terms "declaration" and "certificate."
He asserts the term "declaration" refers to the
requirement contained in W. Va. Code 3-5-7 (1991) that candidates
file a "certificate of announcement declaring as a candidate
for the nomination or election to such office." This ignores
the fact, however, that W. Va. Code 3-5-7(f) (1991) provides,
"The provisions of this section shall apply to the primary
election . . . ," and, therefore, the statute does not
apply to the general election. [Emphasis added]. Moreover, W. Va.
Code 3-5-7(a) (1991) provides, "The certificate of
announcement shall be filed . . . not later than the first
Saturday of February next preceding the primary election day . .
. ." and does not refer to the general election, to July 2,
to August 1, or to any other date.
When a third-party submits candidates for the
office of president and vice-president for inclusion on general
election ballot, not only is W. Va. Code 3-5-7 (1991), related to
the filing of declarations of candidacy, by its own terms,
inapplicable; its provisions would serve no useful purpose. As
noted by the petitioners, as well as by the United States Supreme
Court in Anderson, supra, 460 U.S. at 804, the
nominees of the major parties for the offices of president and
vice-president are not directly selected through the primary
election process, but rather are selected at nominating
conventions, which occur well after the deadline proposed by the
respondent and, in fact, after even the August 1 deadline
provided by statute. The purposes of imposing deadlines for
filing declarations of candidacy under W. Va. Code 3-5-7 (1991)
are to ensure the orderly administration of primary elections and
to provide notice to the electorate of the identity of candidates
seeking their party's nomination. Where nomination for candidates
for inclusion on the general election ballot occurs through a
mechanism other than primary election, however, the filing of a
"declaration of candidacy" would not serve the purposes
of the statute.
In addition to the respondent's
misinterpretation of the language of W. Va. Code 3-5-23(a)
(1986), he also fails to adequately comprehend the effect of the
proviso which follows the language of the statute upon which he
relies. In Syllabus Point 2 of State v. Ellsworth J.R.,
175 W. Va. 64, 331 S.E.2d 503 (1985), this Court held, "The
function of a proviso in a statute is to modify, restrain, or
conditionally qualify the preceding subject to which it
refers." See also Syl. pt. 5, Robbins v.
McDowell County Board of Education, 186 W. Va. 141, 411 S.E.2d 466 (1991). Similarly, it has been stated, "Provisos
serve the purpose of restricting the operative effect of
statutory language to less than what its scope of operation would
be otherwise." 2A Norman J. Singer, Sutherland Statutory
Construction . 47.08, at 156 (5th ed. 1992)(citations omitted).
In contrast to the ambiguity regarding the
meaning of the language preceding the proviso, which might apply
to third-party candidates for offices other than president and
vice-president, the language of the proviso itself, with regard
to those offices, is clear and unambiguous, providing that
"the deadline for filing the certificate for persons seeking
ballot access as a candidate for the office of president or
vice-president shall be filed not later than the first day of
August preceding the general election."(4)
W. Va. Code 3-5-23(a) (1986). The reference to the fee in this
statute to be filed "[a]t the time of filing such
declaration" probably initially referred to the language
preceding the proviso, but a reasonable interpretation is that
for the offices of president and vice-president, such fee is to
be filed with the certificate filed by August 1. Therefore, we
hold that, pursuant to W. Va. Code 3-5-23(a) (1986), the deadline
for filing with the secretary of state the certificate and fee
for a person seeking ballot access as a candidate for the office
of president or vice-president as the nominee of a third-party
otherwise qualifying for inclusion on the general election ballot
by method other than primary election is the first day of August
preceding the general election, and such persons are not required
to file a declaration of candidacy pursuant to W. Va. Code 3-5-7
(1991).(5)
In Syllabus Point 2 of State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969), this Court held, "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Because the petitioners have established the legal right to have their certificates and fees accepted, the legal duty of the respondent to accept such certificates and fees, and the absence of any other adequate remedy, we grant a writ of mandamus compelling the respondent to process the certificates and fees submitted by the petitioners.
Writ granted.
1. 1The petitioners also assert that, if the Court were to accept the respondent's interpretation of the relevant statutes, such interpretation would discriminate against third-party candidates in an unconstitutional manner. To be sure, this Court has repeatedly recognized that the right to run for political office is a fundamental right, see, e.g., State ex rel. Sowards v. County Comm'n of Lincoln Co., No. 23525 (W. Va. July 17, 1996), Sturm v. Henderson, 176 W. Va. 319, 342 S.E.2d 287 (1986), State ex rel. Piccirillo v. City of Follansbee, 160 W. Va. 329, 233 S.E.2d 419 (1977); that the right extends to third-parties and independent candidates seeking access to the general election ballot, see, e.g., West Virginia Libertarian Party v. Manchin, 165 W. Va. 206, 270 S.E.2d 634 (1980); and that substantial burdens on, or discrimination against, those who seek to invoke the right are unconstitutional unless the regulation in question is necessary to accomplish a compelling state interest, see, e.g., Sowards, supra, Sturm, supra. This right of candidacy is grounded in the voting and public office provisions of W. Va. Const. art. IV, 1 and 4, see, e.g., Marra v. Zink, 163 W. Va. 600, 256 S.E.2d 581 (1979), Piccirillo, supra; and in the political rights conferred by W. Va. Const. art. III, 7 and 16, see, e.g., State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 460 S.E.2d 436 (1995). In addition, general principles of our fundamental rights/equal protection analysis under W. Va. Const. art. III, 10, apply in cases involving discrimination against particular candidates. Although petitioners mount substantial arguments in this case that their constitutional rights have been violated, we are spared of the necessity of addressing those claims because we reject the respondent's interpretation of the relevant statutes.
2. 2Eventually, the respondent determined that a sufficient number of valid signatures were submitted to comply with statutory requirements for inclusion on the general election ballot of the Libertarian Party's candidates for governor and state senate, and admits in his response to the petition filed in this case that a sufficient number of valid signatures have been submitted for inclusion of the Libertarian Party's candidates for president and vice-president.
3. 3We note that the court in Socialist Workers Party v. Hechler, 696 F. Supp. 190, 193 (S.D. W. Va. 1988), rev'd on other grounds, 890 F.2d 1303 (4th Cir. 1989), assumed for purposes of discussion that W. Va. Code 3-5-23(a) (1986) mandates the filing of declarations of candidacy and filing fees by July 2, and the filing of certificates no later than August 1, by third-party candidates for president and vice-president. We further note, however, that such assumptions were made without any statutory analysis and that the August 1 deadline is not mentioned in Anderson.
4. 4We note that the proviso was inserted into the statute by a 1986 amendment which was presumably adopted in response to the decision in Anderson. 1986 W. Va. Acts ch. 76. It is this insertion, without corresponding amendment to related statutes, that is the primary source of the ambiguity in W. Va. Code 3-5-23(a) (1986).
5. 5We note that the nominating conventions of the two major political parties this year were conducted after August 1 and, accordingly, that their nominees will not be certified to the respondent until after August 1. We reiterate that we do not decide whether, under certain circumstances, the August 1 deadline might unfairly discriminate against third-parties, and therefore be rendered unconstitutional. Although from the frequency of lawsuits regarding third-party access to the ballot, one might conclude that there is a tendency for the secretary of state to interpret any statutory ambiguity in a manner which excludes third-party candidates, we sympathize with the difficulty in deciphering the inartful and contradictory language used in the relevant statutes and urge the legislature to consider clarifying standards and procedures for third-party ballot access.
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