IN	THE	SUPREME	COURT	OF	APPEALS	OF	WEST	VIRGINIA	

January	2016	Term	

____________________	

NO.	16‐0226	

____________________	

WILLIAM	R.	WOOTON,	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;	

West	Virginia	State	Auditor	GLEN	B.	GAINER,	III;	

And	West	Virginia	State	Treasurer	JOHN	D.	PERDUE,	

Respondent	

_________________________________________________________________________________________	

Certified	Question	from	the	Circuit	Court	of	Kanawha	County	

The	Honorable	Charles	E.	King,	Jr.,	Judge	

Civil	Action	No.	16‐AA‐13	

	CERTIFIED	QUESTION	ANSWERED	

_______________________________________________________________________________________	

Submitted:	March	23,	2016	

Filed:		April	19,	2016	

Robert	M.	Bastress,	Jr.	 	 	 	 	 K&L	GATES	LLP	

Post	Office	Box	1295		 	 	 	 	 Thomas	C.	Ryan	

Morgantown,	WV	26507‐1295	 	 	 	 210	Sixth	Avenue	

	 	 	 	 	 	 	 	 Pittsburgh,	PA	15222	

Robert	V.	Berthold,	Jr.	 	 	 	 	 Attorney	for	Respondent	

BERTHOLD	LAW	FIRM	PLLC	 	 	 	 Walker	

Charleston,	WV	25335	 	 	 	 	 		

FILED 

April 19, 2016 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
Thomas	Patrick	Maroney	 	 	 	 	 Richard	L.	Gottlieb	

608	Virginia	Street,	East,	Floor	2	 	 	 	 Webster	J.	Arceneaux,	III	

Charleston,	WV	25301	 	 	 	 	 Spencer	D.	Elliott	

Attorneys	for	Petitioner	Wooton	 	 	 	 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.	
i	

SYLLABUS	BY	THE	COURT	

1.	 	 	 	 	 “The	 appellate	 standard	 of	 review	 of	 questions	 of	 law	 answered	 and	

certified	 by	a	circuit	court	is	de novo.”	 	Syl.	Pt.	1,	Gallapoo v. Wal‐Mart Stores, Inc.,	

197	W.	Va.	172,	475	S.E.2d	172	(1996).		

2.	 	 	 	 	 “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).	

3.					The	West	Virginia	State	Election	Commission	has	discretion	to	certify	a	

participating	candidate	 for	public	 funding	under	the	“West	Virginia	Supreme	Court	

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

(2014),	notwithstanding	the	candidate’s	failure	to	meet	the	time	deadlines	set	forth	

in	 W.	 Va.	 Code	 of	 State	 Rules	 §§	 146‐5‐6.1	 &	 6.2,	 where	 the	 candidate	 has	

substantially	complied	with	all	requirements	set	 forth	in	 the	Act	and	 the	rules	and	

where	there	is	no	showing	of	prejudice.		
1	

KEADLE,	Acting	Chief	Justice:	

	 	 Petitioner	 William	 R.	 Wooton	 is	 a	 candidate	 seeking	 election	to	 the	

Supreme	Court	of	Appeals	of	West	Virginia,	and	a	 “participating	candidate”	as	 that	

term	 is	 defined	 in	 the	 “West	 Virginia	 Supreme	 Court	 of	 Appeals	 Public	 Campaign	

Financing	 Program,”	W.	 Va.	 Code	 §	 3‐12‐3(11)	 (2014).	 	 On	 February	 5,	 2016,	 the	

West	 Virginia	 State	 Elections	 Commission	 (“the	 Commission”)	 certified	 Petitioner	

Wooton’s	campaign	for	public	funding	under	the	Act,	overruling	a	challenge	filed	by	

Respondent	Elizabeth	D.	Walker,	a	non‐participating	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	certified	the	following	question	to	this	

Court:	

Whether	the	West	Virginia	State	Election	Commission’s	certification	

of	Respondent	[now	Petitioner]	Wooton	for	public	financing	of	his		

candidacy	for	the	West	Virginia	Supreme	Court	under	West	Virginia	

Code	§	3‐12‐1,	et	seq.,	was	valid.		

The	court	answered	the	question	in	the	negative.	

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

oral	 arguments,	 and	 the	 applicable	 law,	 we	 modify	 and	 answer	 the	 certified	

question,	reverse	the	judgment	of	the	court	below,	and	reinstate	the	decision	of	the	

Commission	certifying	Petitioner	Wooton.	
2	

I.				FACTS AND PROCEDURAL HISTORY

	 	 West	 Virginia	 Code	 §	 3‐12‐1,	 et seq.	 (2014),	 known	 as	 the	 West	

Virginia	 Supreme	 Court	 of	 Appeals	 Public	 Campaign	 Financing	 Program,	 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).		

										A	 candidate	 seeking	 public	 financing	 must	 file	 a	 Declaration	 of	 Intent	

prior	to	the	end	of	the	qualifying	period,	W.	Va.	Code	§	3‐12‐7,	which	period	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	§	31‐12‐3(13).		After	filing	the	

Declaration	of	 Intent	but	before	certification	 for	public	 financing,	a	candidate	must	

gather	 at	 least	 500	 “qualifying	 contributions”	 from	 West	 Virginia	 voters.	 	 W.	 Va.	

Code	 §	 3‐12‐9(c).	 	 Each	 contribution	 can	 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	 contributions	

must	be	no	less	than	$35,000.00	and	no	more	than	$50,000.00.		Id.	1

	 After	a	participating	candidate	has	collected	 the	 requisite	number	of	

qualifying	contributions,	and	within	two	business	days	of	the	close	of	the	qualifying	

																																																								

1	 If	 the	 aggregate	 amount	 of	 a	 candidate’s	 qualifying	 contributions	 exceeds	

$50,000.00,	the	excess	is	paid	over	into	the	Fund.		Id.		
3	

period,2	he	or	she	files	a	final	report	and	applies	to	the	Commission	to	be	certified	to	

receive	 public	 financing.	 	W.	 Va.	 Code	 §	 3‐12‐10(a);	W.	 Va.	 Code	 of	State	 Rules	 §§	

146‐5‐6.1,	6.2.		The	candidate’s	application	must	include	a	sworn	statement	that	he	

or	she	has	and	will	comply	with	all	requirements	of	the	program.		Id.		In	the	instant	

case,	 Petitioner	 Wooton	 filed	 his	 final	 report	 and	 all	 required	 substantive	

information	on	February	2,	2016,	but	did	not	file	his	sworn	statement	until	February	

3,	 2016,	 one	 day	 late.	 	 This	 is	 the	 sole	 basis	 upon	 which	 Respondent	 Walker	

challenges	Wooton’s	certification	in	this		appeal.	3		

	 The	 Commission	 overruled	 the	 challenge,	 finding	 that	 it	 had	 the	

authority	 to	certify	 the	Wooton	campaign	 for	public	 financing	notwithstanding	 the	

one‐day	 delay	in	 submission	 of	 the	 sworn	 statement.	 	On	 appeal,	 the	 circuit	 court	

certified	 and	 answered	 the	 question	 set	 forth	 above,	 concluding,	 by	 necessary	

implication,4	that	the	Commission	did	not	have	such	authority.		Appeal	to	this	Court	

followed,	and	the	case	was	set	for	briefing	and	argument	on	an	expedited	schedule.		

																																																								

2	The	qualifying	period	ends	on	January	30,	which	in	2016	fell	on	a	Saturday;	thus,	

February	2,	2016,	was	the	second	business	day.			

3	Although	Respondent	Walker	filed	a	blanket	challenge	to	all	of	Petitioner	Wooton’s	

contributions	 by	 letter	 of	 February	 2,	 2016,	 “reserv[ing]the	 right	 to	 submit	

challenge	forms	as	soon	as	possible...,”	she	never	pursued	the	matter.	

4	The	certified	question	and	answer	are	 framed	in	wholly	conclusory	language	and	

give	no	hint	as	to	the	court’s	ratio decidendi.	
4	

II.				STANDARD OF REVIEW

	 It	 is	 well	 established	 that	 “[t]he	 appellate	 standard	 of	 review	 of	

questions	 of	 law	 answered	 and	 certified	 by	 a	 circuit	 court	 is	 de novo.”	 	 Syl.	 Pt.	 1,	

Gallapoo v. Wal‐Mart Stores, Inc.,	197	W.	Va.	172,	475	S.E.2d	172	(1996).			

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).		

										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	 Petitioner	Wooton	 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	 5,	 2016,	 when	 the	 Commission	 certified	 Petitioner	 Wooton	 for	 public	
5	

funding,	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	

challenge	 to	 the	Wooton	 campaign’s	 certification.	 	 Under	 these	 circumstances,	 we	

can	perceive	of	no	basis	on	which	to	conclude	that	Respondent	Walker	has	no	first‐

party	standing	to	appeal	from	the	denial	of	that	challenge.				

Mandatory Disqualification/Substantial Compliance

										Although	 the	 question	 certified	 by	 the	 court	 below	 is	 very	 broad,	 the	

briefs	and	arguments	of	the	parties	make	it	clear	that	the	sole	issue	for	decision	in	

this	 case	 is	 very	 narrow:	 whether	 Petitioner	 Wooton’s	 failure	 to	 file	 his	 sworn	

statement	on	or	before	February	2,	2016,	the	second	business	day	after	the	close	of	

the	 qualifying	 period,	 mandated	 his	 disqualification	 under	 the	 Act.	 	 Respondent	

Walker	 argues	 that	 “a	 deadline	 is	 a	 deadline,”	 and	 that	 under	 the	 Act	 and	 the	

legislative	rules,	W.	Va.	Code	of	State	Rules	§	146‐5‐1	et seq.,	the	West	Virginia	State	

Election	 Commission	 has	 no	 discretion	 to	 excuse	 or	 extend	 any	 deadline	 for	 any	

reason.		Further,	Respondent	Walker	makes	a	policy	argument	that	any	exercise	of	
6	

discretion	 on	 the	 part	 of	 the	 Commission	 will	 erode	 public	 confidence	 in	 the	

integrity	of	the	public	financing	program.		Cf. Brady v. Hechler,	176	W.	Va.	570,	574,	

346	S.E.2d	546,	550	(1986).			

										In	 contrast,	 Petitioner	Wooton	argues	 that	 the	legislative	 rules,	and	in	

particular	W.	Va.	Code	of	State	Rules	 §§	146‐5‐6.1	&	6.2,	are	mere	 “administrative	

guide[s],”	and	that	nothing	in	the	Act	or	the	legislative	rules	imposes	an	obligation	

on	the	Commission	to	disqualify	any	candidate	on	the	basis	of	a	late	filing	of	his	or	

her	sworn	statement.		Petitioner	Wooton	also	makes	a	policy	argument	that	denying	

public	 funding	 to	a	participating	candidate	who	makes	any	procedural	misstep,	no	

matter	how	inconsequential,	would	defeat	the	reform	goals	of	the	Act.			

										We	 begin	 with	 the	 acknowledgment	 that	 “[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).		Accordingly,	

we	 reject	 any	 suggestion	 that	W.	 Va.	 Code	 of	 State	 Rules	 §§	 146‐5‐6.1	 &	 6.	 2	 are	

mere	“guides,”	a	term	with	no	legal	significance,	or	are	otherwise	of	no	consequence.			

	 This,	however,	is	hardly	the	end	of	the	inquiry.		It	is	well	settled	under	

this	 Court’s	 precedents	 that	 “not	 all	 technical	 procedural	 violations	 merit	 relief	

where	there	is	substantial	compliance	with	substantive	law.”			West Virginia Alcohol
7	

Beverage Control Administration and Division of Personnel v. Scott,	205	W.	Va.	398,	

403,	 518	 S.E.2d	 639,	 644	 (1999)	 (Workman,	 J.,	 dissenting)	 (emphasis	in	 original).		

E.g., State ex rel. Catron v. Raleigh County Bd. of Educ.,	201	W.	Va.	302,	496	S.E.2d	444	

(1997)	(substantial	compliance	in	filing	grievance);	State ex rel. Cooper v. Caperton,	

196	 W.	 Va.	 208,	 470	 S.E.2d	 162	 (1996)	 (substantial	 compliance	 with	 publication	

requirements);	Hare v. Randolph County Bd. of Educ.,	183	W.	Va.	436,	396	S.E.2d	203	

(1990)	 (substantial	 compliance	 with	 evaluation	 procedures	 leading	 up	 to	

termination	 from	employment);	Vosberg v. Civil Serv. Comm’n of West Virginia,	166	

W.	 Va.	 488,	 275	 S.E.2d	 640	 (1981)	 (substantial	 compliance	 with	 grievance	

procedure).		This	Court	has	even	applied	the	principle	of	substantial	compliance	in	

cases	involving	procedural	requirements	set	forth	in	the	West	Virginia	Constitution.		

E.g., State ex rel. Smith v. Kelly,	149	W.	Va.	381,	141	S.E.2d	142	(1965)	(substantial	

compliance	 with	 notice	 requirements	 prior	 to	 statewide	 vote	 on	 proposed	

constitutional	amendment);	Morgan v. O’Brien,	134	W.	Va.	1,	60	S.E.2d	722	 (1948)	

(to	same	effect).			

	 In	In re Burks,	206	W.	Va.	429,	525	S.E.2d	310	(1999),	a	DUI	case,	the	

circuit	court	reversed	a	license	revocation	order	issued	by	the	Commissioner	of	the	

Division	 of	 Motor	 Vehicles	 because	 the	 arresting	 officer	 had	 failed	 to	 mail	 his	

“Statement	of	Arresting	Officer”	to	the	Commissioner	within	forty‐eight	hours	of	the	

driver’s	 arrest,	 as	 required	 by	 statute.	 	 This	 Court	 reversed,	 holding	 that	 “[a]	 law	

enforcement	 officer’s	 failure	 to	 strictly	 comply	with	 the	DUI	 arrest	 reporting	 time	

requirements	 of	W. Va. Code,	 17C‐5A‐1(b)[1994]	is	 not	 a	 bar	 or	impediment	 to	 ...	
8	

administrative	action	based	on	the	arrest	report,	unless	there	is	actual	prejudice	to	

the	driver	as	a	result	of	such	failure.”		Burks,	Syl.	Pt.	1,	in	part,	206	W.	Va.	at	430,	525	

S.E.2d	at	311.		

	 Applying	 these	 principles	 to	 the	 instant	 case,	 we	 conclude	 that	

Petitioner	Wooton	substantially	complied	with	the	Act	and	the	rules.		From	the	time	

he	 became	 a	 participating	 candidate,	 through	 and	 including	 February	 2,	 2016,	 he		

timely	filed	every	form,	every	disclosure,	and	every	piece	of	information	required	–	

with	 the	exception	 of	 one	 piece	 of	 paper,	a	pro forma	 sworn	 statement,	 	which	 he	

filed	one	day	late.		The	record	is	devoid	of	evidence	that	Petitioner	Wooton’s	tardy	

submission	of	the	statement	was	of	any	consequence	to	anyone,	let	alone	caused	any	

prejudice	or	harm	to	anyone.		

Nothing	in	 the	history	or	language	of	 the	Act	suggests	 that	 the	Commission	

intended	its	legislative	rules,	authorized	by	W.	Va.	Code	§	3‐12‐11(d),	to	constitute	a	

complicated	regulatory	trap	for	the	unwary.		Additionally,	nothing	in	the	history	or	

language	 of	 the	 Act	 suggests	 that	 a	 violation	 of	 any	 rule,	 no	 matter	 how	

inconsequential,	carries	a	mandatory	 “death	penalty”	 for	a	participating	candidate.		

See, e.g, State ex rel. Bumgardner v. Mills,	132	W.	Va.	580,	53	S.E.2d	416	(1949);	State

ex rel. Hall v. Gilmer County Court,	87	W.	Va.	437,	105	S.E.	693,	694‐95	(1921);	State

v. Bd. of Canvassers,	 87	W.	 Va.	 472,	 105	 S.E.	 695	 (1921).	 	 	 As	 this	 Court	 stated	 in	

Bumgardner,	132	W.	Va.	at	595,	53	S.E.2d	at	428:	

This	Court	has	held	that	prior	statutory	provisions	[governing	

verified	statements	of	financial	transactions],	although	exacting		
9	

promptness	in	the	preparation	and	the	delivery	of	the	expense		

account	of	every	candidate	for	public	office,	manifest	‘no	express		

or	implied	determination	to	disqualify	permanently	one	who	is		

tardy	in	that	respect	from	discharging	the	functions	and		

receiving	the	emoluments	of	the	office	to	which	he	has	been		

elected,	but	only	until	he	has	filed	the	required	statements.’			

	 The	case	of	Brady v. Hechler,	176	W.	Va.	570,	346	S.E.2d	546	(1986),	

relied	 upon	 by	 Respondent	 Walker,	 does	 not	 compel	 a	 different	 conclusion.	 	 In	

Brady,	 this	Court	issued	a	writ	of	mandamus	compelling	the	Secretary	of	State	and	

the	ballot	commissioners	of	 the	Ninth	Senatorial	District	of	West	Virginia	 to	strike	

Tracy	W.	Hylton’s	name	 from	 the	May	13,	1986,	ballot,	 for	 failure	to	 timely	 file	his	

certificate	of	candidacy	with	the	Secretary	of	State	as	required	by	W.	Va.	Code	§	3‐5‐

7	 (1985).	 	 A	 certificate	 of	 candidacy	 is	 a	 very	 different	 thing	 from	 the	 pro forma

sworn	statement	at	issue	in	this	case;	submission	of	the	former	sets	in	motion	all	of	

the	 machinery	 necessary	 to	 prepare	 the	 ballots,	 while	 submission	 of	 the	 latter	 is	

merely	 the	 final	 ministerial	 step	 allowing	 issuance	 of	 a	 check	 to	 a	 participating	

candidate	 who	 has	 otherwise	 fulfilled	 every	 obligation	imposed	 by	law	 on	 him	 or	

her.		The	only	person	prejudiced	by	late	submission	of	 the	sworn	statement	is	 the	

candidate,	who	will	suffer	a	delay	in	receipt	of	 the	 funding	necessary	 to	run	his	or	

her	campaign.		

	 Two	 further	considerations	guide	 this	Court’s	 resolution	of	 the	issue	

presented	 in	 this	 case.	 	 First,	 although	 we	 do	 not	 find	 it	 necessary	 to	 determine	

whether	the	time	periods	contained	in	W.	Va.	Code	of	State	Rules	§§	146‐5‐6.1	&	6.2	

are	“arbitrary	or	capricious,”	Grim v. Eastern Electric, LLC,	234	W.	Va.	557,	565,	767	
10	

S.E.2d	267,	275	(2014),	citing	Syl.	Pt.	2,	W. Va. Health Care Cost Review Authority v.

Boone Memorial Hospital,	 196	W.	 Va.	 326,	 472	 S.E.2d	 411	 (1996),	 or	 inconsistent	

with	“the	legislative	intent	expressed	in	the	controlling	or	substantive	statute	which	

the	rule	is	promulgated	 to	implement,”	Harrison v. Commissioner, Division of Motor

Vehicles,	 226	W.	 Va.	 23,	 31,	 697	S.E.2d	 59,	 67	 (2010),	we	 do	 find	 that	they	are	 so	

abbreviated	 as	 to	invite	 exactly	 the	 type	 of	 problems	 that	 arose	in	 this	 case.	 	 The	

documents	required	 to	be	 filed	within	 two	business	days	of	 January	30,	 the	end	of	

the	qualifying	period,	include,	inter alia,	a	full	accounting,	with	documentation,	of	all	

qualifying	contributions	received	by	the	candidate	during	the	month	of	January	–	in	

Petitioner	Wooton’s	 case,	 754	 contributions	 totaling	 $46,952.00.

5	 	To	make	 things	

worse,	W.	Va.	Code	of	State	Rules	§	146‐5‐7.3	requires	that	any	challenges	to	these	

contributions	must	 be	 “filed	 with,	 and	 received	 by,	 the	 Secretary	 [of	 State]	 within	

two	 business	 days	 after	 the	 close	 of	 the	 qualifying	 period	 of	 the	 filing	 of	 a	

candidate’s	 Application	 for	 Certification,	 whichever	 is	 earlier.”	 	 This	 means,	 in	

practical	terms,	that	a	challenger	has	hours,	or	perhaps	even	minutes,	to	file	timely	

challenges.		In	short,	the	restrictive	time	periods	set	forth	in	the	relevant	regulations	

set	 the	stage	 for	exactly	what	happened	in	 this	case:		a	candidate	 timely	 filed	a	29	

page	 report,	which	included	information	and	 documentation	 of	 754	 contributions,	

but	 failed	 to	include	one	additional	piece	of	paper,	 the	pro forma	cover	letter;	and	

																																																								

5	We	reject	Respondent	Walker’s	argument	that	Petitioner	Wooton	was	negligent	in	

“waiting	until	 the	last	minute”	 to	 file	his	paperwork,	as	under	the	Act	he	could	not	

compile	 his	 final	 accounting	 until	 after	 the	last	 qualifying	 contribution	in	 January,	

2016,	had	come	in.			
11	

then	 the	objection	 that	 followed	was	untimely	because	 the	challenger	didn’t	know	

she	had	a	challenge	until	after	the	time	period	had	already	expired.6

	 	 The	second	consideration	which	guides	our	resolution	of	 this	case	is	

the	complete	lack	of	prejudice	to	Respondent	Walker,	or	anyone	else,	resulting	from	

Petitioner	Wooton’s	 submission	 of	 his	 sworn	 statement	 one	 day	 late.	 Nowhere	 in	

her	 brief	 or	 in	 oral	 argument	 was	 Respondent	 Walker	 able	 to	 articulate	 any	

prejudice	 resulting	 from	 the	 Commission’s	 decision	 to	 certify	 Petitioner	 Wooton,	

other	 than	 the	 conclusory	 assertion	 that	 any	 exercise	 of	 discretion	 by	 the	

Commission	in	enforcing	procedural	deadlines	will	cast	a	“shroud	of	doubt”	over	the	

election.		We	disagree.		In	this	case,	as	noted	above,	the	only	prejudice	was	suffered	

by	Petitioner	Wooton	himself,	as	his	late	filing	of	the	sworn	statement	resulted	in	a	

delay	in	his	receipt	of	the	funding	he	needs	to	run	his	campaign.		

	 	 	In	 West	 Virginia	 Code	 §	 3‐12‐2(10),	 the	 Legislature	 articulated	 the	

critical	objectives	of	the	Act:	

As	demonstrated	by	the	2012	West	Virginia	Supreme	Court	of	Appeals		

Public	Campaign	Financing	Pilot	Program,	an	alternative	public	

campaign	financing	option	for	candidates	running	for	a	seat	on	the		

Supreme	Court	of	Appeals	will	ensure	the	fairness	of	democratic	elections		

in	this	state,	protect	the	Constitutional	rights	of	voters	and	candidates		

from	the	detrimental	effects	of	increasingly	large	amounts	of	money		

																																																								

6	 It	is	 questionable	whether	Respondent	Walker	 had	 the	 right	 to	 challenge	in	 this	

case	at	all,	since	the	Act,	W.	Va.	Code	§	3‐12‐10(g),	and	the	regulations,	W.	Va.	C.S.R.	

§	146‐5‐7.1,	provide	only	for	challenges	to	qualifying	contributions,	not	to	any	other	

act	or	omission	on	the	part	of	a	participating	candidate.		The	Commission	found	that	

it	 should,	 in	 equity,	 consider	 the	 challenge,	 and	 Petitioner	 Wooton	 mentions	 but	

does	 not	 contest	 the	 point.	 	 Accordingly,	 this	 Court	 has	 reached	 the	 merits	 of	 the	

challenge.			
12	

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....	

			

	 As	this	Court	recently	noted	in	a	workers’	compensation	case,	“[t]here	

is	 no	 rational	 basis	 to	discourage	medically	 necessary	 treatment;	 this	 reasoning	is	

wholly	 incompatible	 with	 the	 Act’s	 benevolent	 objectives.”	 	 	 Moore v. K‐Mart

Corporation,	234	W.	Va.	658,	664,	769	S.E.2d	35,	41	(2015)	(emphasis	in	original).		

Similarly,	 in	 the	 instant	 case,	 there	 is	 no	 rational	 basis	 to	 deny	 funding	 to	 a	

participating	 candidate	 who	 has	 substantially	 complied	 with	 the	 whole	 welter	 of	

statutes	 and	 rules	 governing	 the	 “West	 Virginia	 Supreme	 Court	 of	 Appeals	 Public	

Campaign	Financing	Program.”		The	Act	specifically	seeks	to	encourage	participation	

in	 the	 program,	 not	 to	 erect	 trap	 doors	 through	 which	 participating	 candidates	

plunge	upon	the	slightest	misstep.		

Mindful	 of	 the	 important	 objectives	 served	 by	 the	 Act,	 and	 in	 light	 of	 the	

foregoing	authorities,	we	conclude,	and	so	hold,	that	the	West	Virginia	State	Election	

Commission	 has	 discretion	 to	 certify	 a	 participating	 candidate	 for	 public	 funding	

under	 the	 “West	 Virginia	 Supreme	 Court	 of	 Appeals	 Public	 Campaign	 Financing	

Program,”	W.	 Va.	 Code	 §	 3‐12‐1	 et seq.,	 notwithstanding	 the	 candidate’s	 failure	 to	

meet	the	time	deadlines	set	 forth	in	W.	Va.	Code	of	State	Rules	§§	146‐5‐6.1	&	6.2,	

where	 the	 candidate	 has	 substantially	 complied	with	 all	 requirements	 set	 forth	in	

the	Act	and	the	rules	and	where	there	is	no	showing	of	prejudice.		
13	

	 Although	 in	 this	 case	 the	 Commission	 made	 no	 specific	 findings	 of	

substantial	compliance	or	lack	of	prejudice,	we	find	it	unnecessary	to	remand	for	the	

Commission	 to	 consider	 these	 issues.	 	 The	 evidence	 in	 the	 voluminous	 record	

submitted	 by	 the	 parties	 is	 undisputed	 that	 Petitioner	 Wooton	 substantially	

complied	 with	 the	 Act	 and	 the	 rules,	 and	 that	 Respondent	 Walker	 suffered	 no	

prejudice	 from	 the	 one	 day	 delay	 in	 submission	 of	 Wooton’s	 cover	 letter.	 	 No	

contrary	inference	could	be	drawn,	and	 therefore	 this	case	may	be	 finally	resolved	

in	this	appeal.		

The Certified Question

As	set	 forth	herein,	 the	question	answered	and	certified	by	 the	court	below	

gives	 no	 hint	 as	 to	 the	 reasoning	 employed	 by	 the	 court,	 and	 therefore	 serves	 no	

purpose	other	 than	 to	announce	winners	and	losers.		Because	 this	is	an	important	

case	involving	an	issue	likely	to	recur	in	proceedings	before	the	West	Virginia	State	

Election	Commission,	this	Court	will	modify	the	certified	question	in	order	to	make	

clear	 the	 ratio decidendi	 of	 our	 decision,	 thereby	 providing	 guidance	 to	 the	

Commission	and	other	interested	parties:	

Whether	the	West	Virginia	State	Election	Commission	has	discretion	

to	certify	a	participating	candidate	for	public	funding	under	the		

“West	Virginia	Supreme	Court	of	Appeals	Public	Campaign		

Financing	Program,”	W.	Va.	Code	§	3‐12‐1	et seq.,	notwithstanding		

the	candidate’s	failure	to	meet	the	time	deadlines	set	forth	in	W.	Va.	

Code	of	State	Rules	§§	146‐5‐6.1,	6.2,	where	the	candidate	has	

substantially	complied	with	all	requirements	set	forth	in	the	Act	and	

the	rules	and	where	there	is	no	showing	of	prejudice.		
14	

	 We	answer	 this	question	in	 the	affirmative,	and	 find	 that	in	 this	case	

the	Commission	acted	within	its	discretion	in	certifying	 the	campaign	of	Petitioner	

Wooton	for	public	funding	under	the	Act.		

IV.				CONCLUSION

	 For	the	foregoing	reasons,	we	modify	the	certified	question	to	apply	to	

the	 specific	 facts	 of	 this	 case,	 and	 answer	 the	 modified	 certified	 question	 in	 the	

affirmative.	 	 The	 decision	 of	 the	 Circuit	 Court	 of	 Kanawha	 County	 is	 hereby	

REVERSED,	 and	 the	 decision	 of	 the	 West	 Virginia	 State	 Election	 Commission	 is	

hereby	reinstated	in	its	entirety.		

						 											Certified	Question	Answered.