January 22, 2016
Anthony J. Majestro, Esq.

Powell & Majestro, PLLC,

Charleston, West Virginia

Counsel for Petitioners, 

West Virginia 

Democratic Executive Committee 

for the Ninth Senatorial District

Peter G. Markham, Esq.

General Counsel

Office of Governor Earl Ray Tomblin

Charleston, West Virginia

Counsel for Respondent Governor

Tomblin

Vincent Trivelli, Esq.

The Law Office of Vincent Trivelli,

PLLC

Morgantown, West Virginia

Thomas Patrick Maroney, Esq.

Maroney, Williams, Weaver & Pancake

PLLC

Charleston, West Virginia 

Counsel for Amicus Curiae, West

Virginia State Building and Construction

Trades Council, AFL-CIO and the

Affiliated Construction Trades

Foundation

J. Mark Adkins, Esq.

Patrick C. Timony, Esq.

Bowles Rice LLP

Charleston, West Virginia

Counsel for Beverly R. Lund, Justin M.

Arvon, Sue “Naomi” Cline, and Tony Paynter

Mark A. Carter, Esq. 

Dinsmore & Shohl LLP

Charleston, West Virginia

Counsel for Beverly R. Lund, Justin M.

Arvon, Sue “Naomi” Cline, and Tony Paynter

Patrick Morrisey, Esq.

Attorney General,

Elbert Lin, Esq.

Solicitor General

J. Zak Ritchie, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for Intervenor State of West Virginia

John M. Canfield, Esq.

Vice President & Counsel for Amicus Curiae,

West Virginia Chamber of Commerce

Charleston, West Virginia

Jeffrey M. Wakefield, Esq. 

Wesley P. Page, Esq.

Keith R. Hoover, Esq.

Flaherty Sensabaugh & Bonasso.

Counsel for Amicus Curiae, William P. Cole,

III, President of the West Virginia Senate

JUSTICE WORKMAN delivered the OPINION of the Court. CHIEF JUSTICE KETCHUM

AND JUSTICE LOUGHRY concur and reserve the right the file concurring opinions. 

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion. JUSTICE

BENJAMIN, deeming himself disqualified, did not participate in this proceeding. 
SYLLABUS BY THE COURT

1. “Mandamus is a proper remedy to require the performance of a

nondiscretionary duty by various governmental agencies or bodies.” Syl. Pt. 1, State ex rel.

Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W.Va. 207, 151 S.E.2d 102 (1966). 

2. “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.” Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367

(1969). 

3. “In West Virginia a special form of mandamus exists to test the eligibility

to office of a candidate in either a primary or general election.” Syl. Pt. 5, in part, State ex

rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976). 

4. “Because there is an important public policy interest in determining the

qualifications of candidates in advance of an election, this Court does not hold an election

mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus

case.” Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979).

i
5. “[W]hen a writ of mandamus has been invoked to preserve the right to vote

or to run for political office . . . this Court has eased the requirements for strict compliance

for the writ’s preconditions, especially those relating to the availability of another remedy.”

Syl. Pt. 3, in part, State ex rel. Sowards v. Cty. Comm’n of Lincoln Co., 196 W.Va. 739, 474

S.E.2d 919 (1996).

6. “A statutory provision which is clear and unambiguous and plainly

expresses the legislative intent will not be interpreted by the courts but will be given full

force and effect.” Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

7. “‘When the constitutionality of a statute is questioned every reasonable

construction of the statute must be resorted to by a court in order to sustain constitutionality,

and any doubt must be resolved in favor of the constitutionality of the legislative enactment.’ 

Syl. Pt. 3, Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).” Syl. Pt. 3, State v.

James, 227 W.Va. 407, 710 S.E.2d 98 (2011). 

 

ii
Workman, Justice:

On January 8, 2016, the petitioners, Belinda Biafore, Chair of the West

Virginia State Democratic Executive Committee, and the members of the West Virginia

Democratic Executive Committee for the Ninth Senatorial District (hereinafter “petitioners”),

petitioned this Court, requesting the issuance of a writ of mandamus against the respondents,

Governor Earl Ray Tomblin and members of the West Virginia Republican Executive

Committee for the Ninth Senatorial District (hereinafter “respondents”). Through this

request for extraordinary relief, the petitioners seek to compel Governor Tomblin to fill the

current vacancy in the West Virginia Senate from a list of three candidates to be selected by

the petitioners. 

On January 11, 2016, the respondent, Governor Tomblin, filed a summary

response to the petition. The respondent members of the West Virginia Republican

Executive Committee for the Ninth Senatorial District filed a response in opposition to the

petition on January 12, 2016. West Virginia Attorney General Patrick Morrisey filed an

intervenor’s brief.

On January 13, 2016, this Court issued a rule to show cause and ordered the

respondents to show cause, if any, why a writ of mandamus should not be awarded as

1
requested by the petitioners. Oral argument was conducted on January 19, 2016. 1

I. Factual and Procedural History

Daniel Jackson Hall was elected to the West Virginia Senate in the 2012

general election as the Democratic senator in the Ninth Senatorial District. In November

2015, Senator Hall changed parties and became a Republican. On December 29, 2015,

Senator Hall announced his resignation from the Senate, effective January 3, 2016, which

created the vacancy at the center of this dispute. An immediate discussion ensued regarding

whether Governor Tomblin was required to replace Senator Hall with a Democrat or a

Republican.

On January 5, 2016, Attorney General Patrick Morrissey issued an opinion of

the Attorney General concluding that Governor Tomblin was required to replace Senator Hall

with a Republican from one of three names submitted by the respondent members of the

West Virginia Republican Executive Committee for the Ninth Senatorial District, pursuant

to the provisions of West Virginia Code § 3-10-5 (2013). 

In the Petition for Writ of Mandamus currently before this Court, the

This Court expresses appreciation for the amicus briefs filed in this matter. 1

2
petitioners contend West Virginia Code § 3-10-5 is ambiguous and should be interpreted to

preserve the mandate of the voters when a legislative vacancy occurs. Because the voters of

the Ninth Senatorial District elected Senator Hall as a Democrat, the petitioners argue the

voters’ mandate can best be preserved by interpreting the statute to require Governor

Tomblin to appoint a Democrat from the three names to be submitted by the petitioners. 

II. Mandamus

This Court has consistently held “[m]andamus is a proper remedy to require

the performance of a nondiscretionary duty by various governmental agencies or bodies.” 

Syl. Pt. 1, State ex rel. Allstate Ins. Co. v. Union Pub. Serv. Dist., 151 W.Va. 207, 151 S.E.2d

102 (1966). Generally,

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.

Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). 

Cognizant of the need for alacrity in matters affecting the right to political

office, this Court has recognized that “[i]n West Virginia a special form of mandamus exists

to test the eligibility to office of a candidate in either a primary or general election.” Syl. Pt.

5, in part, State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976). In

3
special mandamus election cases, “[b]ecause there is an important public policy interest in

determining the qualifications of candidates in advance of an election, this Court does not

hold an election mandamus proceeding to the same degree of procedural rigor as an ordinary

mandamus case.” Syl. Pt. 2, State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d

119 (1979). In that same vein, we have explained that “when a writ of mandamus has been

invoked to preserve the right to vote or to run for political office . . . this Court has eased the

requirements for strict compliance for the writ’s preconditions, especially those relating to

the availability of another remedy.” Syl. Pt. 3, in part, State ex rel. Sowards v. Cty. Comm’n

of Lincoln Co., 196 W.Va. 739, 474 S.E.2d 919 (1996). 

Applying these principles to this matter, we view the vacancy created by

Senator Hall’s departure as properly the subject of a writ of mandamus. 

III. Discussion

The case sub judice requires the application of settled principles of statutory

application under which this Court must first determine whether the statutory text is plain and

unambiguous. See U.S. v. Gonzales, 520 U.S. 1, 4 (1997). We have uniformly adhered to

the principle that where a statute is plain and unambiguous, it is the clear and unmistakable

duty of the judiciary to merely apply the language. Hardt v. Reliance Standard Life Ins. Co.,

560 U. S. 242, 251 (2010); Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970);

4
Hood v. City of Wheeling, 85 W.Va. 578, 102 S.E. 259 (1920); Wellsburg and State Line R.

R. Co. v. Panhandle Traction Co., 56 W.Va. 18, 48 S.E. 746 (1904). If the statutory text is

clear and unambiguous, we must apply the statute according to its literal terms. See, e.g.,

Dodd v. U.S., 545 U.S. 353, 357 (2005). 

In State of West Virginia v. Continental Casualty Co., 130 W.Va. 147, 42

S.E.2d 820 (1947), this Court further elucidated this principle: 

When a statute is clear and unambiguous, and the legislative

intent is plain, the statute should not be interpreted by the courts.

50 Am.Jur., Statutes, Section 225. See State ex rel. McLaughlin

v. Morris, 128 W.Va. 456, 37 S.E.2d 85. In such case the duty

of the courts is not to construe but to apply the statute. In

applying the statute its words should be given their ordinary

acceptance and significance and the meaning commonly

attributed to them. 50 Am.Jur., Section 225. See Moran v.

Leccony Smokeless Coal Co., 122 W.Va. 405, 10 S.E.2d 578,

136 A.L.R. 1007.

130 W.Va. at 155, 42 S.E.2d at 825. In syllabus point two of State v. Epperly, 135 W.Va.

877, 65 S.E.2d 488 (1951), the Court reiterated: “A statutory provision which is clear and

unambiguous and plainly expresses the legislative intent will not be interpreted by the courts

but will be given full force and effect.” The Court in Epperly also observed: “In such case

the duty of the courts is not to construe but to apply the statute, and in so doing, its words

should be given their ordinary acceptance and significance and the meaning commonly

attributed to them.” Id. at 884, 65 S.E.2d at 492. Courts are obligated to “presume that a

legislature says in a statute what it means and means in a statute what it says there.” 

5
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-254 (1992). When the language of

a statute is unambiguous, “judicial inquiry is complete.” Rubin v. U.S., 449 U. S. 424, 430

(1981).

In view of these axiomatic principles, we emphasize that judicial interpretation

of a statute is warranted only where the statute is ambiguous. Thus, unless the statute at issue

is determined to be ambiguous, this Court is not permitted to engage in an examination of the

public policy ramifications potentially resulting from its application or to comment upon the

wisdom of the legislation as unambiguously expressed.

Turning to the issue before us, the statutory text frames our analysis. West

Virginia Code § 3-10-5 addresses the filling of vacancies such as that created by Senator

Hall’s departure and provides as follows:

(a) Any vacancy in the office of State Senator or member of the

House of Delegates shall be filled by appointment by the

Governor, from a list of three legally qualified persons

submitted by the party executive committee of the party with

which the person holding the office immediately preceding the

vacancy was affiliated. The list of qualified persons to fill the

vacancy shall be submitted to the Governor within fifteen days

after the vacancy occurs and the Governor shall duly make his

or her appointment to fill the vacancy from the list of legally

qualified persons within five days after the list is received. If the

list is not submitted to the Governor within the fifteen-day

period, the Governor shall appoint within five days thereafter a

legally qualified person of the same political party as the person

vacating the office.

6
(b) In the case of a member of the House of Delegates, the list

shall be submitted by the party executive committee of the

delegate district in which the vacating member resided at the

time of his or her election or appointment. The appointment to

fill a vacancy in the House of Delegates is for the unexpired

term.

(c) In the case of a State Senator, the list shall be submitted by

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. The appointment to fill a vacancy in

the State Senate is for the unexpired term, unless section one of

this article requires a subsequent election to fill the remainder of

the term, which shall follow the procedure set forth in section

one of this article.

W. Va. Code § 3-10-5 (emphasis supplied). 

In this case, the petitioners, as well as Governor Tomblin and amicus curiae,

West Virginia ALF/CIO and the West Virginia State Building and Construction Trades

Council, essentially argue that the subject statute is susceptible to differing interpretations. 

Specifically, they contend that the statute is unclear as to whether the party “affiliation”

refers to the time of election or the time of vacancy. 

To the contrary, the respondents, as well as amicus curiae, West Virginia

Chamber of Commerce, the Attorney General’s Office, and Senate President William Cole,

argue that the language of the statute is unmistakably clear and requires the governor to select

a replacement from a list submitted by the Republican Party’s Ninth Senatorial District

7
Executive Committee.

Upon this Court’s review, we find West Virginia Code § 3-10-5 clear and

unambiguous. It succinctly states the requirements for filling a vacancy in the West Virginia

Legislature. Subsection (a) provides that a vacancy is to be filled through appointment by

the governor. The list to be utilized by the governor in selecting the appointee is to be

composed of “three legally qualified persons submitted by the party executive committee of

the party with which the person holding the office immediately preceding the vacancy was

affiliated.” W. Va. Code § 3-10-5(a). Subsection (a) also provides that if a list is not

submitted within fifteen days, the governor is to appoint, within five days thereafter, “a

legally qualified person of the same political party as the person vacating the office.” Id.

Although subsection (c) provides instruction as to which geographic entity

within the party is to submit the list of qualified candidates, that subsection does not affect

the question of the party from which the list designated in subsection (a) is to be generated. 

Subsection (a) clearly provides that the list is to be submitted by the party with which the

officeholder was most recently affiliated. See id. Thus, this Court finds the statute patently

explicit, “admitting of no construction or application other than that which it clearly

demands.” Martin v. Ellisor, 223 S.E.2d 415, 418 (S.C. 1976). 

8
We reject petitioners’ reasoning because their reading of the statute is

profoundly strained and constitutes a misreading of statutory language that is clear in its

meaning. They contend that the replacement for a vacating senator should be chosen from

the political party with which he or she was affiliated at the time of election rather than the

party with which he or she was affiliated immediately preceding the vacancy. As explained

above, this Court is obligated to enforce the statute in accordance with its plain meaning. 

State ex. rel. Safe-Guard Products Int’l. v. Thompson, 235 W.Va. 197, 200, 772 S.E.2d 603,

606 (2015) (holding that clear and unambiguous statute can not be interpreted by courts);

Stanley v. Stanley, 233 W.Va. 505, 510, 759 S.E.2d 452, 457 (2014) (recognizing that statute

is open to construction only where legislation is ambiguous); Martin v Hamblet, 230 W.Va.

183, 187, 737 S.E.2d 80, 84 (2012) (finding that clear and unambiguous statutory provision

will not be interpreted by courts).

It is undisputed that Senator Hall was affiliated with the Republican Party

immediately preceding the vacancy and had been so affiliated since November 2014. The

legislature’s use of the phrase “immediately preceding the vacancy” is manifestly plain,

enunciating a specific and incontrovertible time criterion for the determination of the

vacating officeholder’s party affiliation. 

Dissatisfied with the text of the statute, the petitioners sought to identify and

9
apply an overarching legislative goal that purports to promote the will of the voters. 

However, any analysis which fails to provide reasonable meaning to the phrase “immediately

preceding the vacancy” is wholly improper. This Court will not alter the text in order to 2

satisfy the policy preferences of the petitioners. They “should not seek to amend the statute

by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co, Inc., 534 U.S. 438, 462

(2002). “Preserving the separation of powers is one of this Court’s most weighty

responsibilities.” Wellness Int’l Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1954-55 (2015)

(Roberts, C.J., dissenting). In performing our constitutional duties, we decline the petitioners’

request to encroach upon the power of the Legislature. “Liberty is always at stake when one

or more of the branches seeks to transgress the separation of powers.” Clinton v. City of

N.Y., 524 U.S. 417, 450 (1998) (Kennedy, J., concurring). 

In advancing their arguments, the petitioners direct this Court’s attention to

opinions of other jurisdictions that have encountered ambiguous statutes. Such an approach

proves unworkable because those decisions interpreted significantly dissimilar appointment

statutes and they all were determined to involve ambiguous statutory language. In two cases

primarily relied upon by the petitioners, Richards v. Board of County Commissioners of

See Syl. Pt. 11, in part, Brooke B. v. Donald Ray C., II, 230 W.Va. 355, 738 S.E.2d 2

21 (2013) (“It is not for this Court to arbitrarily read into a statute that which it does not

say.”). The petitioners’ reading of the statute would render the statute’s temporal reference

to “immediately preceding the vacancy” superfluous. 

10
Sweetwater County, 6 P.3d 1251 (Wyo. 2000), and Wilson v. Sebelius, 72 P.3d 553 (Kan.

2003), the statutes at issue were silent as to the time-frame for determining the vacating

official’s party affiliation. Thus, the statutes were found to be ambiguous subsequent to

vacancies occurring in the office after a political party change. The reviewing courts then

embarked upon examinations of public policy arguments designed to support the mandate

of the voters. While the principles advanced in Richards and Wilson are arguably laudable,

this Court’s role is to apply the language of our governing statute. Finding no ambiguity in

the West Virginia statute, we are not permitted to engage in an analysis of public policy

issues, as addressed in those other jurisdictions. The clear directive of our statute, as

addressed above, requires the governor to choose an appointee from a list of candidates

submitted by the executive committee of the political party to which the vacating legislator

belonged immediately prior to vacating the office. 

We are also compelled to address issues raised during oral argument of this

case regarding the constitutionality of the statute and the United States Supreme Court’s

decision in Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982). This Court has 3

consistently held that “‘[w]hen the constitutionality of a statute is questioned every

Rodriquez was not significantly addressed in the petitioners’ brief; nor was a 3

constitutional argument based on Rodriguez advanced in a thorough manner. We address the

constitutional issue evaluated in Rodriguez based only upon the discussion which ensued

during oral argument.

11
reasonable construction of the statute must be resorted to by a court in order to sustain

constitutionality, and any doubt must be resolved in favor of the constitutionality of the

legislative enactment.’ Syl. Pt. 3, Willis v. O’Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).” 

Syl. Pt. 3, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). 

In Rodriguez, the United States Supreme Court held that no provision of the

federal Constitution expressly mandates any particular procedure to be followed by the states

in filling legislative vacancies. 457 U.S. at 8. The appointment statute in Rodriguez was

found to be constitutional, permitting an interim vacancy to be filled by the political party of

the legislator who had vacated the seat. The Supreme Court rejected the appellants’

contention that they had a constitutional right to elect the representatives and that the

legislative vacancies must be filled by special election. 457 U.S. at 10.

In analyzing the issues raised therein, as well as the underlying statute, the 4

Supreme Court in Rodriguez identified several factors which supported the constitutionality

of the Puerto Rico statute. For instance, the United States Supreme Court indicated that the 

Puerto Rico statute did “not restrict access to the electoral process or afford unequal

The Puerto Rico statute at issue in Rodriquez was interpreted to vest a political party 4

with the power to fill an interim vacancy in the Puerto Rico legislature. 457 U.S. at 14. The

Rodriguez case did not involve any alteration in political party between the time of election

and the time of vacancy. 

12
treatment to different classes of voters or political parties.” Id. at 10. “All qualified voters

have an equal opportunity to select a district representative in the general election; and the

interim appointment provision applies uniformly to all legislative vacancies, whenever they

arise.” Id. Additionally, the Rodriguez Court explained:

the . . . choice to fill legislative vacancies by appointment rather

than by a full-scale special election may have some effect on the

right of its citizens to elect the members of the Puerto Rico

Legislature; however, the effect is minimal, and like that in

Valenti, it does not fall disproportionately on any discrete group

of voters, candidates, or political parties. 

 Id. at 12. “Moreover, the interim appointment system plainly serves the legitimate purpose

of ensuring that vacancies are filled promptly, without the necessity of the expense and

inconvenience of a special election. The Constitution does not preclude this practical and

widely accepted means of addressing an infrequent problem.” Id.

The Supreme Court in Rodriguez also explained the nature of the alleged rights

of association and equal protection, addressing the appellants’ argument that their rights were

violated by their exclusion, based on party affiliation, from the election held to select a

successor to the legislative office at issue. The Court disagreed, finding both that such

argument misconceived the nature of the election and that a statute authorizing a political

party to designate an interim replacement did not violate rights of association or equal

13
protection of the laws. Id. The Court further emphasized the substantial deference provided 5

to state legislatures in enacting statutes enunciating the appropriate means of filling vacancies

within their legislative bodies. 6

This Court addressed the Rodriguez holding in State ex rel. Robb v. Caperton,

191 W. Va. 492, 446 S.E.2d 714 (1994). In that case, Justice Miller delivered the opinion

of the Court, and we held that a vacancy in the office of a Supreme Court Justice or circuit

judge may be filled by the governor by appointment. This Court noted “we are not cited nor

are we aware of any federal constitutional attack that has been made successfully on a state’s

constitutional or legislative enactment for filling vacancies in state offices.” Id. at 497, 446

S.E.2d at 719. This Court summarized the Rodriguez opinion as follows: 7

See also Trinsey v. Pennsylvania, 941 F.2d 224 (3d Cir. 1991), cert. denied, 502 U.S. 5

1014 (upholding Pennsylvania statute that did not require primary election before general

election to fill vacancy in United States Senate); Lynch v. Illinois State Bd. of Elections, 682

F.2d 93, 97 (7th Cir.1982) (upholding Illinois election law providing for Mayor to fill

aldermanic vacancy by appointment). 

“The methods by which the people of Puerto Rico and their representatives have 6

chosen to structure the Commonwealth’s electoral system are entitled to substantial

deference.” 457 U.S. at 8.

In Robb, this Court also evaluated a New York decision in Valenti v. Rockefeller, 292 7

F.Supp. 851 (S.D.N.Y.1968), aff’d, 393 U.S. 404-06 (1969), wherein a “district court was

convened to consider whether New York’s election law allowing an election to fill the

vacancy in the office for United States Senator to be deferred for twenty-nine months

violated the Seventeenth Amendment to the United States Constitution.” Robb, 191 W. Va.

at 497, 446 S.E.2d at 719. The issue of the extended time period for filling a position by

“temporary” appointment was raised in Valenti. The Valenti court reasoned as follows:

14
The claim was made that this [Puerto Rico statute] procedure

excluded voters who were not members of the political party

from voting and, thereby, denied them equal protection. The

court in Rodriguez found no constitutional infirmity and made

this summary of legal principles: “No provision of the Federal

Constitution expressly mandates the procedures that a state or

the Commonwealth of Puerto Rico must follow in filling

vacancies in its own legislature. . . . Moreover, we have

previously rejected claims that the Constitution compels a fixed

method of choosing state or local officers or representatives.”

457 U.S. at 8-9, 102 S.Ct. at 2199, 72 L.Ed.2d at 634-35.

(Citations and footnotes omitted).

Robb, 191 W. Va. at 498, 446 S.E.2d at 720 (emphasis provided). In Robb, this Court

ultimately upheld the action as required by the constitutional and statutory provisions, finding

that “the legislature’s language is too plain to interpret” in the manner advanced by the party

seeking relief. Id. at 496, 446 S.E.2d at 718. 8

The constitutionality of a political appointment was also challenged in State

ex rel. Herman v. Klopfleisch, 651 N.E.2d 995 (Ohio 1995). An unsuccessful Democratic

In this case we are confronted with no fundamental imperfection

in the functioning of democracy. No political party or portion

of the state’s citizens can claim it is permanently disadvantaged

. . . or that it lacks effective means of securing legislative reform

if the statute is regarded as unsatisfactory. We have, rather, only

the unusual, temporary, and unfortunate combination of a tragic

event and a reasonable statutory scheme. 

Valenti, 292 F.Supp. at 851 (emphasis supplied). 

In Robb, we were requested, through writ of mandamus, to require the filling of the 8

vacancy left by the resignation of the Honorable John Hey in Kanawha County, West

Virginia, at the next general election, in 1994, rather than waiting until the 1996 election. 

15
candidate challenged the appointment of a Republican officeholder following the resignation

of an individual who was elected as a Democrat but then switched to the Republican Party

while in office. 651 N.E.2d at 996. The guiding statute was similar to the West Virginia

statute, with the exception that it lacked a temporal reference. It provided only that a vacancy

was to be filled by the central committee “of the political party with which the last occupant

of the office was affiliated.” Id. at 997. Addressing a constitutional challenge to the

appointment of a Republican, the Supreme Court of Ohio cited Rodriquez for the proposition

that no particular procedure is mandated for the filling of vacancies in a state legislature. The

court in Herman found the Democratic challenger’s constitutional argument unavailing. Id.

at 999. 9

Examining the West Virginia statute in light of the principles addressed by the

United States Supreme Court in Rodriguez, this Court finds no basis upon which to find our

statute unconstitutional. To the contrary, the Rodrigeuz decision emphasized the

considerable latitude enjoyed by each state with respect to procedures for filling vacancies

in state government. 457 U.S. at 12. Of note was the observation that the choice of filling

vacancies by appointment rather than by special election may affect the rights of the citizens

The court in Herman, despite its finding that the statute was ambiguous because it 9

did not contain a temporal reference to the time of election or the time of vacancy, found no

violation in the seating of a Republican to replace the officeholder who had run as a

Democrat and changed to the Republican Party while in office. 651 N.E.2d at 996. 

16
to elect its members of the Puerto Rico legislature. Id. However, the effect was deemed

“minimal” in Rodriguez and not to fall disproportionately on any discrete group of voters by

applying the statute’s provisions. Id. Likewise, the West Virginia statute’s effect on the

rights of the citizens of this state to elect specific members of the West Virginia Legislature

is minimal. The effect does not fall disproportionately on a discreet group of voters or

political parties and affects both political parties equally, depending in each instance upon

the party affiliation of the person creating a vacancy. Equal treatment of voters, based upon

an unforeseeable event such as the changing of political parties and a subsequent vacancy,

does not constitute a violation of equal protection. 

In ruling on this mandamus action, we emphasize that a judicial determination

of whether a vacancy statute is ambiguous is not a political decision. Although a court might

profoundly disagree with a particular statute or may even prefer another outcome, the

judiciary is prohibited from substituting its judgment for that of the legislative branch, an

action tantamount to improperly assuming the role of legislators. Were this Court to rewrite 10

the clause in an inauspicious attempt to achieve any certain result, we could legitimately be

accused of legislating from the bench. Euphemistic reliance on statutory interpretation to

In a democratic society, the power to make the law rests with those chosen by the 10

people. The judiciary’s role, however, is significantly more confined. We are asked only “to

say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803); see e.g., I.N.S. v.

Chadha, 462 U.S. 919, 944 (1983) (observing that statute’s “wisdom is not the concern of

the courts.”).

17
obtain a specific result would frustrate the tripartite principles of government upon which this

state was founded and still firmly rests. 

Resolution of this dispute is purely a matter of statutory application, be it a

Democrat transforming into a Republican, or a Republican becoming a Democrat. The

statute applies with equal force to each situation and must be interpreted in precisely the

same fashion regardless of the underlying party disloyalty demonstrated by the changeling. 

In the final analysis, we affirm the primacy of the Legislature’s power to enact statutes and

this Court’s constitutional mandate to apply the laws as written. Our decision is grounded

in law, not in ideology or politics. 

IV. Conclusion

Based upon the foregoing, this Court finds no ambiguity in West Virginia Code 

§ 3-10-5. Accordingly, we deny the requested writ of mandamus seeking to direct the

Governor to fill the current vacancy in the West Virginia Senate from a list of three

candidates to be selected by the petitioners. The vacancy is to be filled according to the

explicit provisions of the statute, from a list of three candidates to be selected by the

respondent West Virginia Republican Executive Committee for the Ninth Senatorial District, 

based upon Senator Hall’s most recent affiliation with the Republican Party.

 

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The Clerk is ordered to issue the mandate in this case forthwith. 

Writ denied.

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