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~ "",r"c· , r . .~>, I 92ulc ; 'C: J IN THE SUPREME <;OURT OF APPEALS OF WEST VIRGINIA ·1 iB~~~~~tt~~Jg~~PC;;E~- ' .. OF No. 18-0789

State of West Virginia ex reI. William K. Schwartz, Petitioner, v.

James Justice, Governor of the State of West Virginia; , West Virginia Secretary of State; Evan Jenkins; and Tim Armstead, Respondents.

RESPONDENT TIM ARMSTEAD'S RESPONSE TO RELATOR WILLIAM K. SCHWARTZ'S COMBINED WRIT OF MANDAMUS AND WRIT OF PROHllJITION DIRECTING TIm SECRETARY OF STATE TO REMOVE EVAN ,JENKINS' NAME FROM THE ELECTION BALLOT ON NOVEMBER 6, 2018 AND TO PROIDBIT GOVERNOR JUSTICE'S APPOINTMENTS OF JENKINS AND ARMSTEAD TO THE VACANT SUPREME COURT SEATS

Michael W. Carey, WVSB NQ. 635 David R. Pogue, WVSB No. 10806 Carey, Scott, Douglas & Kessler, PLLC 901 Chase Tower 707 Virginia Street, East P.O. Box 913 Charleston, West Virginia 25323 (304) 345-1234 mwcarey@csdla~firm.com 4rpogue@~sd1~wfipn.~om

Counsel for Respondent Tim Armstead TABLE OF CONTENTS

PAGES

TABLE OF AUTHORITIES ...... ii, iii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 1

SUMMARY OF ARGUMENT ...... 4

STATEMENT REGARDING ORAL ARGUMENT AND DECISION ...... 6

ARGUMENT ...... 6

I. STANDARD OF REVIEW ...... 6

II. THERE IS NO REQUIREMENT THAT THE GOVERNOR FILL A VACANCY ON THE SUPREME COURT OF APPEALS WITH A PERSON OF THE SAME PARTY AFFILIATION AS THE DEPARTING JUSTICE ...... 8

A. Article II, § 2 ofthe West Virginia Constitution has not been violated ...... 10

B. Article IT, § 4 ofthe West Virginia Constitution has not been violated ...... 12 m. THE GOVERNOR'S APPOINTMENT OF RESPONDENT ARMSTEAD TO JUSTICE KETCHUM'S SEAT ON THE SUPREME COURT OF APPEALS DID NOT VIOLATE ARTICLE IV, § 15 OF THE WEST VIRGINIA CONSTITUTION ...... 13

A. No vote by Mr. Annstead, nor the House ofDelegates in general, created the vacancy on the Supreme Court ofAppeals that Mr. Armstead was appointed to fill ...... 13

B. By its plain language, Article IV, § 15 only applies to newly created offices, not vacancies in existing offices ...... 15

C. The office ofJustice of the Supreme Court ofAppeals is an "office to be filled by election of the people" excepted from Article VI, § 15 ...... 17

CONCLUSION ...... 17 TABLE OF AUT~ORITIES

CASES PAGES

G90per v. Gwinn, 171 W. Va. 245, 298 S.E.2d 781 (1981) ...... 11

Hamilt

Rice v. Underwood, 205 W. Va. 274,517 S.E.2d 751 (1998) ...... 7

State ex ~eI. Bromelow v. Daniel, 163 W. Va. 532,258 S.E.2d 119 (1979) ...... 7

St,ate ex reI. Frazier v. Meadows, 193 W. Va. 20, 454 S.E.2d 65 (1994) ...... 9

S,41teex reI. Hash v. McGraw, 180 W. Va. 428, 376 S.E.2d 634 (1988) ...... 6

State. . ex. reI. Kucera v. CilY of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969) ...... 7

State ,ex reI. Richey v. Hill, 216 W. Va. 155,603 S.E.2d 177 (2004) ...... 7

StaFe ex reI. Rist v. Underwood, 206 W. Va. 258, 524 S.E.2d 179 (1999) ...... 6,7,9,17

State ex reI. Smith v. Gore, 150 W. Va. 71, 143 S.E.2d 791 (1965) ...... 12 ;. , .. State ex reI. Sowards v. Cly. Gomm'n of Lincoln Cty., 196 W. Va. 739,474 S.E.2d 919 (1996) ...... 7

State ex reI. Trent v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953) ...... 16

Subca.njer COIllillc'ns, Inc. v. Nield, 218 W. Va. 292, 624 S.E.2d 729 (2005) ...... 8,9

STATUTES PAGES

18 U.S.C. § 1343 ...... 3, 14

West Virginia Constitution, Article II, § 2 ...... 1, 4, 10, 11

West Virginia Constitution, Article II, § 4 ...... 1,4,5, 10, 12

West Virginia Constitution, Article IV, § 7 ...... 16

West Virginia Constitution, Article VI, § 15 ...... 1,5,6,13,15,16,17

West Virginia Constitution, Article VI, § 33 ...... 16

11 West Virginia Constitution, Article VII, § 9 ...... 16

West Virginia Constitution, Article VII, § 10 ...... 16

West Virginia Constitution, Article VII, § 16 ...... 16

West Virginia Constitution, Article VIII, § 7 ...... 8,9, 10, 11, 16

West Virginia Constitution, Article VIII, § 9 ...... 16

West Virginia Constitution, Article VIII, § 10 ...... 16

West Virginia Code § 3-5-6a ...... 10

West Virginia Code § 3-10-3 ...... 4,8,9, 10, 11

West Virginia Code § 3-1O-3(a) ...... 9

West Virginia Code § 3-10-3(b) ...... 8,9, 10, 12

West Virginia Code § 3-10-3(c) ...... 9

West Virginia Code § 3-10-3(d) ...... 8,9

West Virginia Code § 3-1O-3(e) ...... 9

West Virginia Code § 3-10-5 ...... 10

West Virginia Code § 3-10-6 ...... 10

West Virginia Code § 3-10-6a ...... 10

West Virginia Code § 3-10-7 ...... 10

West Virginia Code § 3-10-8 ...... 10

West Virginia Code § 6-5-5 ...... 14

WestVirginiaCode§51-3-8(h) ...... 17

111 OUESTIONSPRESENTED . I .,. t, •

Insofar as the instant action relates to Respondent Tim Annstead, the questions presented, in Mr. Armstead's view, are as follows:

1. Does Article n, § 2 (which generally declares that the powers ofgovernment reside in the people) and/or Article n, § 4 (which generally requires equal representation in government) ofthe West Virginia Constitution require the Governor to fill a vacant seat on the West Virginia

Supreme Court ofAppeals with a member ofthe same political party as the departing Justice, even though the specific constitutional and statutory provisions governing appointments to fill vacancies on said Court contain no requirements regarding party affiliation?

2. Is Article VI, § 15 ofthe West Virginia Constitution, which prohibits a delegate from being elected or appointed to any "office" which the Legislature "created" during the delegate's current term, violated when a delegate is appointed to fill a vacancy in an existing position on the

West Virginia Supreme Court ofAppeals after one ofthe Justices resigned his seat shortly before pleading guilty to a federal felony?

STATEMENT OF THE CASE

Respondent Tim Armstead is a longtime citizen and resident of West Virginia. He was admitted to the West Virginia State Bar in 1990, and has practiced law for multiple employers since that tinle. See Relator's Exhibit B, pp. 8-11.1 He became a member ofthe West Virginia House of

Delegates in 1998, and served inthe House continuously until his resignation on August 21, 2018. rd. at p. 25. He became Speaker of the House of Delegates in January 2015, and served in that

1 Relator's petition falsely alleges that Mr. Annstead has not practiced law since 2006. According to Relator's own exhibits, Mr. Annstead practiced law in the capacity of in-house counsel for TransCanada-Columbia Pipelline Group / NiSource Corporate Services Company from 2001 to 2016. See Relator's Exhibit B, pp. 9-11. Mr. Annstead remains licensed to practice law even though he did not serve with a ftnn or company during his last two years as Speaker ofthe House. Id. at p. 9. capacity until his resignation.

Menis E. Ketchum, IT was elected to the West Virginia Supreme Court of Appeals on

November 4, 2008. On or about April 16, 2018, the Legislative Auditor issued a report discussing various issues relating to the administration of the West Virginia Supreme Court of Appeals, including Justice KetchlJ.IIl's use ofa state-owned vehicle for personal trips. See App. at 1-60.2 The

Legislative Auditor issued a second report relating to these issues on May 20, 2018. See App. at 61­

92.3 These reports and other matters (such as the June 19,2018 indictment ofJustice Allen Loughry) led the West Virginia House of Delegates to take up House Resolution 20], relating to the investigation of potential maladministration and/or criminal activity by the Justices of the West

Virginia Supreme Court ofAppeals. App. at 93-101.4

The House convened at an extraordinary session on June, 26, 2018 to consider H.R. 201. As

Relator acknowledges in his petition, Speaker Armstead recused himself from presiding over this extraordinary session. Mr. Armstead further requested that he be excused from voting on H. R. 201, but the Speaker Pro Tempore refused to excuse him. App. at 99.5 The House then proceeded to

2 This report is also publicly available at http://www .wvlegislature.gov/legisdocs/reports/agencylP AlP A_ 2018_632.pdf

3 This report is also publicly available at http://www.wvlegislature.gov/legisdocs/reports/agencyIPAlPA_2018_637.pdf

4 The referenced pages of the Appendix are a copy of the House Journal for June 26,2018, which is also publicly available at http://www.wvlegislature.govlBulletin_Boardlhousejournal.cfin?hdj=hdj2018-06-26-01.htm&ses....Year= 2018&sesstype=2X&headtype=jour&houseorig=h

5 It should also be noted that Democrat , the House Minority Leader, penned a letter dated June 26, 2018 opining that "because there has been no adjudication or findings relating to the removal of any Justice of the Supreme Court," recusal was not appropriate. Mr. Miley further stated that he was "confident that there is no direct or personal pecuniary interests for any bar members ofthe House ofDelegates requiring an exclusion pursuant to House Rule 49." See App. at 105.

2 adopt H.R. 201 with a unanimous vote' of89 yays (including all Democrats present and voting) and zero nays. App. at 100.6 Notably, H. R. 201 merely resolved that the House Committee on the

Judiciary be empowered to investigate alleged improprieties by the Justices ofthe West Virginia

Supreme Court ofAppeals and report its findings and recommendations to the House. H. R. 201 did· not recommend impeachment or otherwise express any preference as to what the result ofthe House

Committee on the Judiciary's investigation should be. App. at 106-107.7

On July 11,2018, Justice Ketchum announced that he was resigning from the Supreme Court ofAppeals effective July 27,2018. App. at 108-110. As ofJustice Ketchum's announcementon

July 11, 2018, no action had been taken by the West Virginia House ofDelegates to impeach him.

However, at some point prior to his resignation, the federal government began investigating Justice

Ketchum's use ofa State vehicle and State-issued fuel card for improper purposes. On July 24, 2018

(three days before the effective date ofJustice Ketchum's resignation), the United States Attorney's office sent a plea agreement to Justice Ketchum's legal cOl.msel. See App. at 151-163. Under the terms of that plea agreement, justice Ketchum had to plead guilty to a one-count Information charging him with felony wire fraud in violation of 18 U.S.C. § 1343. App. at 151-152. Justice

Ketchum signed the plea agreement on July 30,2018. App. at 157.

On August 13 and 14, 2018 (approximately two weeks after Justice Ketchum agreed to plead

6 Relator attempts to make much out of the fact that Mr. Armstead stayed on the floor and voted ''yea'' on H. R. 201. However, in this regard, Mr. Armstead behaved no differently than the 11 other attorneys in the House ofDelegates (including several Democrats) who requested to be excused from voting on H. R. 201, were refused, and ultimately voted ''yea.'' See App. at 99-100. Further, Rule 24 of Rules ofthe House of Delegates prohibited Mr. Armstead from simply leaving after his request to be excused from voting was denied. See http://wvlegislature.gov/House/rules.cfm

7 The text ofH. R. 201 is also publicly available at http://www.wvlegislature.govlBill_Status/bills_text.cfm?billdoc=HR201%20intr. htrn&yr=2 0 18&sesstyp e=2X&i=20 1&houseorig=h&billtype=r

3 guilty to a federal felony), the House of Delegates convened and voted to adopt articles of impeachment against Justices Allen Loughry, Robin Davis, , and Elizabeth

Walker. App. at 111-145.8 No articles were introduced or voted upon to impeach Justice Ketchum, who had previously resigned.

On August 25, 2018, Governor Justice appointed Mr. Armstead to fill Justice Ketchum's seat on the Court until the special election set to take place on November 6,2018. Mr. Armstead was not appointed to fill the seat of any Justice who was impeached by the House of Delegates on August

13 and 14,2018.

SUMMARY. OF. , ARGUMENT,

Governor Justice was not required to fill Justice Ketchum's seat on the Supreme Court of

Appeals with an appointee having the same political party affiliation as Justice Ketchum. There is both a constitutional provision and a statutory provision governing appointments to fill vacancies on the Supreme Court ofAppeals, and neither contains any hint ofa requirement that the appointee must share the same party affiliation as the departing Justice. In fact, W. Va. Code § 3-10-3 does contain political party affiliation requirements for appointees to certain other offices, but expressly states that said requirements do not apply to appointments to judicial offices such as Justice ofthe

Supreme Court ofAppeals.

Furthermore, neither Article II , § 2 nor Article II, § 4 ofour state Constitution requires the

Governor to select an appointee with the same political party affiliation as the departing Justice.

Article II, § 2 is a general declaration ofthe fundamental principle ofdemocracy that the powers of

8 The referenced pages ofthe Appendix are copies ofthe House Journal for August 13,2018 and August 14,2018, which are also publicly available at http://www.wvlegisiature.gov/Bulletin_Board/housejournal.cfm?hdj=hdj2018-08-13-02.htm&sesyear= 2018&sesstype=2X&headtype=jour&houseorig=h; and http://www.wvlegislature.gov/Bulletin_Board/housejournal.cfm?hdj=hdj2018-08-14-03.htm&sesyear= 2018&sesstype=2X&headtype=jour&houseorig=h

4 government reside in the people. It has never been invoked to impose a political party affiliation restriction on the Governor's powers of appointment. Article II, § 4 requires equality of numbers in all apportionment ofrepresentation. It is not implicated in this case, which does not involve any attempted redistricting, and instead involves the appointment of a temporary replacement to fill a vacancy in a statewide office.

Governor Justice's appointment ofMr. Armstead to Justice Ketchum's seat on the Supreme

Court of Appeals also does not violate Article VI, § 15 of our Constitution. Article VI, § 15 prohibits a legislator from being appointed to an office that the legislature created during his or her tenn. Justice Ketchum announced his resignation on July 11,2018, and stated that his resignation would take effect on July 27,2018. As ofthe rumouncement ofJustice Ketchum's resignation, the

House ofDelegates had only voted to investigate potential offenses by the Justices ofSupreme Court ofAppeals, and had not taken any action affinnatively seeking to impeach any ofthem. Then, on

July 30, 2018, just three days after the effective date of his resignation, Justice Ketchum signed a plea agreement with the U.S. Attorney's office wherein he agreed to plead guilty to a federal felony

(which would disqualify him from holding public office in this State). The House ofDelegates did not vote to adopt articles of impeachment until August 13, 2018 (weeks after Justice Ketchum had already resigned), and the articles ofimpeachment that the House ultimately considered and adopted did not even mention Justice Ketchum. Under the circumstances, it cannot be said that the House of Delegates "created" the vacancy in Justice Ketchum's seat.

However, even ifthe circumstances were different, and the House had "created" the vacancy to which Mr. Armstead was ultimately appointed, there would still be no violation ofArticle VI, §

15 ofour state Constitution. First, by its plain language, Article VI, § 15 prohibits the appointment of a legislator to an "office" that was ·'created" during the legislator'S tenn, as opposed to a mere

5 "vacancy" in a long-existing office. The office ofJustice ofthe Supreme Court ofAppeals existed

long before Mr. Armstead's most recent term in the House of Delegates, and was not "created" during such term. Second, there is an exception in Article VI, § 15 for "offices to be filled by election by the people," and in 2006, the Legislature declared that the office of Justice of the

Supreme Co\.rrt ofAppeals falls within that exception. Accordingly, Relator has failed to establish any impediment to Governor Justice's selection of Mr. Armstead to fill the vacancy in Justice

Ketchum's seat on the Supreme Court ofAppeals until the special election in November.9

STATEl\1ENT REGARDING ORAL ARGUMENT AND DECISIO~

Respondent Armstead agrees with Relator thatthis case is appropriate for a Rule 20 argument because the case involves issues offundamental public importance.

ARGUMENT

I. STANDARD OF REVIEW

Respondent Armstead does not dispute that "[m ]andamus will lie to resolve the question of whether a gubernatorial appointee is constitutionally qualified to assume the office to which he or she has been appointed." Syi. Pt. 2, St,ate ex reI. Rist~. Underwood, 206 W. Va. 258, 524 S.E.2d

179 (1999).10 Generally speaking, a writ of mandamus will not issue unless the following three

9 In the "Summary of Argument" section ofRelator's brief, Relator asserts that "[b]oth appointees that Governor Justice appointed failed to meet the licensing and experiential qualifications required by the West Virginia Constitution." However, in the actual "Argument" section ofhis brief, Relator argues only that Respondent Evan Jenkins failed to satisfy Relator's interpretation ofthe licensing qualifications required by the Constitution, because Mr. Jenkins allegedly failed to continuously maintain an active West V irginia law license during the 10 years immediately prior to his appointment. Given that Relator's own Exhibit B indicates that Respondent Armstead has maintained an active West Virginia law license continuously from 1994 to present, there can be no argument that Respondent Armstead was not admitted to practice law for at least 10 years prior to his appointment.

10 However, Respondent Armstead does dispute that Relator's request for a writ ofprohibition is appropriate in this context. Relator cites State ex reI. Hash v. McGraw, 180 W. Va. 428, 432,376 S.E.2d 634,638 (1988) for the principle that a writ ofprohibition is proper where a judge is improperly

6 elements coexist: "(1) a clear legal right in the petitioner to the reliefsought; (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." Id. at 262,524 S.E.2d at 183 (citing Syl. pt. 3, State ex reI. Kucera v.

City. . ofWheeling,. . 153 W.Va. 538,170 S.E.2d 367 (1969)). The burden ofproofas to these elements is on the party seeking the relief, and "failure to meet anyone ofthem is fatal." State ex reI. Richey .• i v. Hill, 216 W. Va. 155, 16Q, 603 S.E.2d 177, 182 (2004).

Relator cites State ex reI. Bromelow v. Daniel, 163 W. Va. 532,258 S.E.2d 119 (1979) and

State ex reI. Sowards v ..CtY'. Comm'n ofLincoln Cty., 196 W. Va. 739,474 S.E.2d 919 (1996) for the proposition that, in election mandamus proceedings, the Court has eased the requirements for obtaining mandamus relief, especially those relating to the availability ofanother remedy. Insofar as this proceeding relates to Mr. Armstead, it is not an election mandamus proceeding, but rather a proceeding seeking to block Mr. Armstead's appointment to fill a vacant seat on the Supreme Court of Appeals until a special election can be held. Nevertheless, even assuming that Relator is not strictly required to demonstrate the absence of another adequate remedy, Relator still must prove, at a minimum, that .he has a clear legal right to the relief he seeks, and that the Governor and the

Secretary of State have a clear legal duty to do what Relator seeks to compel. For the reasons set forth below, Relator can prove neither ofthese things, and his petition must be denied.

appointed. However, that case, unlike the case at bar, did not involve an appointment by an executive official. This Court has recognized that "[p]rohibition does not lie to control a legislative body or to prevent an executive act," and "should be used only to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction." Rice v. Underwood, 205 W. Va. 274, 278 n. 1,517 S.E.2d 751, 755 n. 1 (1998).

7 II. THERE IS NO REQUIREMENT THAT THE GOVERNOR FILL A VACANCY ON THE SUPREME COURT OF APPEALS WITH A PERSON OF THE SAME PARTY AFFILIATION AS THE DEPARTING JUSTICE.

There is both a constitutional provision and a statutory provision establishing the Governor's authority to fill a vacancy on the Supreme Court ofAppeals by appointment. The relevant provision ofthe West Virginia Constitution is Article VIII, § 7, which reads, in relevant part, as follows:

Iffrom any cause a vacancy shall occur in the office ofa justice ofthe supreme court ofappeals or a judge ofa circuit court, the governor shall issue a directive ofelection to fill such vacancy in the manner prescribed by law for electing a justice orjudge of the court in which the vacancy exists, and the justice or judge shall be elected for the unexpired term; and in the meantime, the governor shall fill such vacancy by appointment until ajustice or judge shall be elected and qualified. Ifthe unexpired term be less than two years, or such additional period, not exceeding a total ofthree years, as may be prescribed by law, the governor shall fill such vacancy by appointment for the unexpired term.

W. Va. Const. art. VIII, § 7 (emphasis added).ll The relevant statutory provision is W. Va. Code §

3-10-3, which reads, in relevant part, as follows:

Any vacancy occurring in the offices ofJustice ofthe Supreme Court ofAppeals, judge of a circuit court, or judge of a family court is filled by the Governor ofthe state by appointment and, if the unexpired term be for a period of more than two years, by a subsequent election to fill the remainder of the term, as required by § 3-10-3(d) ofthis code ....

W. Va. Code § 3-1 0-3(b) (emphasis added).

Critically, neither ofthe above-quoted provisions says a word about party affiliation. This

Court has recognized that"[i]t is not for [courts] arbitrarily to read into [a statute] that which it does not say." Subcarrier Commc'ns. Inc. v. Nield, 218 W. Va. 292, 299, 624 S.E.2d 729, 736 (2005);

11 In stating that ''the governor shall issue a directive ofelection to fill such vacancy in the manner prescribed by law for electing ajustice or judge ofthe court in which the vacancy exists," the authors of Article VllI, § 7 plainly contemplated that the Legislature would enact statutes establishing the procedures and requirements for filling vacancies in the judiciary. As set forth infra, the Legislature did enact such a statute, and specifically indicated that no political party affiliation restrictions apply to appointments to fill vacancies in the judicial offices.

8 see also Stateex reI. Frazierv.Meadows, 193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994)(ncourts are not free to read into the language what is not there, but rather should apply the statute as written. n).

Moreover, "[w ]here a provision of a constitution is clear in its terms and ofplain interpretation to any ordinary and reasonable mind, it should be applied and not construed." Rist, 206 W. Va. at 268,

524 S.E.2d at189; see also Subcmrier Commq'ns, 218 W. Va. at 297, 624 S.E.2d at 734

(20Q5)(recognizing same rule for statutes). Importantly, at this stage ofanalysis, "[c]ourts are not concerned with the wisdom or expediencies ofconstitutional provisions, and the duty ofthe judiciary is merely to carry out the provisions ofthe plain language stated in the constitution." Rist, 206 W.

Va. at 268-69,524 S.E.2d at 189-90.

Here, by their plain, unambiguous language, Art. VIII, § 7 and W. Va. Code § 3-10-3 give the Governor the authority to fill vacancies on the Supreme Court of Appeals by appointment without any restriction regarding the political affiliation ofthe appointee. These clear provisions must be applied and not construed, and any attempt to read into these provisions that which they do not say must be rejected.

Furthermore, to the extent any'doubt exists as to the Legislature's intent with respect to W.

Va. Code § 3-1O-~(b), su~h doubt is eliminated by the plain language ofW. Va. Code § 3-10-3(a).

In § 3-1 0-3 (a), the Legislature requires the Goveniorto fill vacancies in the offices of"Secretary of

State, Auditor, Treasurer, Attorney General, Commissioner ofAgriculture,. [and] any office created or made elective to be filled by the 'voters ofthe entire state" with "a legally qualified person ofthe same political party with which the person holding the office immediately preceding the vacancy was affiliated at the time the vacancy occurred [ .]" W. Va. Code § 3-10-3 (a). The Legislature then states,

"the provisions of this subsection do not apply to § 3-10-3(b), § 3-10-3(c), § 3-10-3(d), and §

3-10-3(e) of this code." W. Va. Code § 3-10-3(a)(emphasis added). Thus, the Legislature

9 specifically and expressly excluded § 3-10-3(b), which addresses vacancies on the Supreme Court of Appeals (and other judicial offices), from the requirement that appointees must be of the same political party as the prior holder ofthe office. 12 As such, there can be no doubt that the Governor has the authority to fill vacancies on the Supreme Court of Appeals without regard to party affiliation. 13

Nevertheless, Relator argues that Article IT, § 2 and Article IT, § 4 of the West Virginia

Constitution are violated ifthe Governor fills a vacant seat on the Supreme Court ofAppeals with an appointee who is affiliated with a different political party than the prior occupant ofthat seat. As set forth below, Relator's reliance on these provisions is misplaced.

A. Article II, § 2 of the West Virginia Constitution has not been violated.

Article IT, § 2 ofour state's Constitution provides, in its entirety, as follows: "The powers of government reside in all the citizens ofthe state, and can be rightfully exercised only in accordance with their will and appointment." W. Va. Const. art. IT, § 2. This provision is a general declaration of the. fundamental democratic princ;iple that the elected officials of this State are chosen by and

12 A review of other provisions in Chapter Three, Article 10 of the West Virginia Code similarly makes clear that the Legislature did not intend to impose party affiliation restrictions on gubernatorial appointees to vacant seats in the judiciary. The statutes regarding vacancies in the legislature and the offices of circuit court clerk, county commissioner, prosecuting attorney, sheriff, assessor and surveyor all expressly require the appointment of a person ofthe same political party as the officeholder vacating the office. See W. Va. Code §§ 3-10-5,3-10-6,3-10-7, and 3-10-8. The lack of any similar language in W. Va. Code § 3-10-3(b), regarding vacancies on the Supreme Court of Appeals, speaks volumes.

13 Curiously, Relator acknowledges that the express language of § 3-10-3 provides for appointment without regard to party affiliation, yet later in his petition states that "[c ]ertainly Governor Justice has drawn his authority to appoint these replacements without adhering to the vacating justice's political affiliation from the recently passed statute that provides that justices shall be elected through nonpartisan ballots." See Relator's petition, pp. 23-24 (citing W. Va. Code § 3-5-6a). While the fact that the office ofJustice ofthe Supreme Court of Appeals has been a non-partisan position since the passage of § 3-5-6a in 2015 certainly undercuts Relator's argument that Governor Justice must fill vacancies on a partisan basis, the Governor's authority to fill vacant seats without regard for party affiliation comes from W. Va. Code § 3-10-3(b) and W. Va. Const. art. vrn, § 7.

10 answerable to the people ofthis State. See e.g. Hamilton v. Mayor & Council ofCill' ofCharleston, . ..-. . ., . , .

116 W. Va. 521, 182 S.B. 575, 576 (1935)(recognizing that Art. II, § 2 would be violated if the

Legislature were to delegate certain taxation authority to a board not chosen by or answerabie to the electorate). The provision is not violated here, where the temporary appointee (regardless ofpolitical affiliation) will be answerable to the people at the November 6, 2018 special election, as contemplated in Article VIII, § 7 ofthe Constitution. Indeed, although Art. II, § 2 has existed for well over a century, it is has never been invoked or applied to place any restriction on the Governor's authority to fill a vacancy on the Supreme Court ofAppeals (or any other vacancy, for that matter).

Furthermore, while Art. II, § 2 provides that "[t]hepowers ofgovernment reside in all the citizens of the state, and can be rightfully exercised only in accordance with their will and appointment," this Court has explained that "statutory law is the public policy statement of the people acting through the legislative branch of the republican form of government." Cooper v.

Gwinn, 171 W. Va. 245, 250, 298 S.E.2d 781, 786 (1981). In other words, the "will ofthe people" is expressed in the statutes passed by their elected representatives in the Legislature. See Id. As previously discussed, the Legislature has stated very clearly in W. Va. Code § 3-10-3 that the

Governor may temporarily fill vacant seats on the Supreme Court by appointment without regard for political affiliation. 14 Thus, the people, acting through their republican form ofgovernment, have enacted a rule oflaw that allows the Governor the authority to do the exact thing that Relator seeks to prohibit. Accordingly, neither Art. II, § 2 nor the will ofthe people has been violated.

14 Again, it should be noted that Governor Justice's appointee will only serve on the Supreme Court ofAppeals until the special election set to occur on November 6, 2018. For all his rhetoric about the will ofthe people, Relator apparently has little regard for the intelligence of the people ifhe thinks that they will mindlessly vote to keep l\'.fr. Armstead on the Supreme Court ofAppeals even ifthey agree with Relator's contention that Governor Justice has appointed Mr. Armstead against their will.

11 B. Article II, § 4 of the West Virginia Constitution has not been violated.

Article IT, § 4 ofour state's Constitution provides, in its entirety, as follows: "Every citizen shall be entitled to equal representation in the government, and, in all apportionments of representation, equality of numbers of those entitled thereto, shall as far as practicable, be preserved." W. Va. Const. art. IT, § 4. As this Court has recognized, Article IT, § 4 "is clear in its terms and ... the intention thereof is manifest from the language used." ~tate ex reI. Srrpth v. Gore,

150 W. Va. 71, 76, 143 S.E.2d 791, 794 (1965). It simply requires "equality of numbers in all apportionments ofrepresentation." rd., 143 S.E. 2d 795. The instant lawsuit does not involve any attempted redistricting or other matter involving the apportionment of representation. Rather, it involves a temporary appointment to a statewide office. As such, Art. IT, §4 has no application here.

As this Court has recognized, "[w ]here the language used is clear and unambiguous, courts must be governed thereby, and should never attempt to read into a constitutional or statutory provision a meaning which was not intended." Id., 143 S.E.2d 794. By citing Art. II, § 4, which deals with the apportionment ofrepresentation, in support of the argument that Governor Justice was required to appoint a Democrat rather than a Republican to fill a vacancy in the statewide office ofJustice ofthe

West Virginia Supreme Court of Appeals, Relator is plainly attempting to read into Art. IT, § 4 a meaning which was not intended.

Moreover, even ifRelator' s interpretation ofArt. IT, §4 were valid (which it is not), Relator's argument that "[a]pplication ofW. Va. Code § 3-10-3 (b) without regard to political party affiliation

... deprives the voters oftheir right to elect a candidate oftheir choosing" in violation of Art. II,

§ 4 remains flawed. To illustrate, even ifGovernor Justice were to appoint a Democrat, the people would have no say in which Democrat. West Virginia is a State in which the labels "Democrat" and

"conservative" are not mutually exclusive. Even if the Governor were required to appoint a

12 Democrat, he could appoint a Democrat with views substantially different from those ofJustice

Ketchum and/or those who voted Justice Ketchum into office. Thus, the rote political affiliation criteria that Relator seeks to impose would do nothing to provide the voters with "acandidate oftheir choosing." Indeed, the very nature ofgubernatorial appointment deprives the voters oftheir ability to directly choose the appointee. Instead, in this context, the voters have the power to express any dissatisfaction with the Governor's appointee by voting the appointee out of office at the special election in November, and/or voting the Governor out ofoffice at the next gubernatorial election.

III. THE GOVERNOR'S APPOINTMENT OF RESPONDENT ARMSTEAD TO JUSTICE KETCHUM'S SEAT ON THE SUPREME COURT OF APPEALS DID NOT VIOLATE ARTICLE VI, § 15 OF THE WEST VIRGINIA CONSTITUTION.

Article VI, § 15 ofthe West Virginia Constitution states, in relevant part, that "[n]o senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office ofprofit under this state, which has been created, or the emoluments ofwhich have been increased during such term, except offices to be filled by election by the people." W. Va. Const. art.

VI, § 15. As demonstrated below, Mr. Arnistead's appointment to Justice Ketchum's seat on the

Supreme Court ofAppeals does not violate this provision because (a) the Legislature did not create the vacancy in Justice Ketchum's seat; (b) Article VI, § 15 prohibits appointment ofa legislator to an "office" that was "created" during his or her term, not appointment to fill a vacancy in an existing office; and (c) the office of Justice of the Supreme Court of Appeals is within the category of

"offices to be filled by election by the people" excepted from Article VI, § 15.

A. No vote by Mr. Armstead, nor the House of Delegates in general, created the vacancy on the Supreme Court ofAppeals that Mr. Armstead was appointed to fill.

As Relator acknowledged in his petition, Governor Justice appointed Mr. Armstead to fill

Justice Ketchum's seat on the Supreme Court of Appeals. Critically, Justice Ketchum was not

13 impeached; he resignedshortly before entering into a plea agreem~nt with the U.S. Attorney's office in which he agreed to plead guilty to a federal felony. As detailed in the Statement of the Case, above, on July 11,2018, Justice Ketchum announced his resignation from the Supreme Court of

Appeals effective July 27,2018. On July 30, 2018, three days after the effective date of his resignation, Justice Ketchum agreed to plead guilty to federal wire fraud in violation of 18 U.S.C.

§ 1343. See App. at 151-163. Notably, West Virginia law prohibits a person convicted ofa felony from holding any elected or appointed office. See W. Va. Code § 6-5-5. 15

Furthennore, at no point prior to Justice Ketchum's resignation did Mr. Annstead or the West

Virginia House of Delegates in general vote to impeach Justice Ketchum. Relator argues that Mr.

Annstead voted "yea" on the "impeachment resolution" on June 26, 2018, and that this vote

"ultimately created" a vacancy on the Supreme Court ofAppeals that Mr. Annstead wanted to fill.

This argument fails for two reasons.

First, the HOl,lse did not vote on an "impeachment resolution" on June 26;2018. Rather, the house merely voted to empower the House Committee on the Judiciary to investigate alleged improprieties by the Justices of the Supreme Court of Appeals and report its findings and recommendations to the House. App. at 93-101; see also App. at 106-107. At no point on June 26,

2018 did the House vote to impeach anyone, or even indicate that impeachments would likely be forthcoming in the future; it simply voted to investigate. Thus, although Relator repeatedly describes

H. R. 201 as a resolution to "investigate and impeach the entire Supreme Court," it is nothing ofthe

15 West Virginia Code § 6-5-5 states that "[n]o person convicted oftreason, felony, or bribery in any election, before any court in or out of this state, shall, while such conviction remains unreversed, be elected or appointed to any office under the laws of this state; and, ifany person, while holding such office, be so convicted, the office shall be thereby vacated." Thus, by operation of law, Justice Ketchum's seat would have been vacated notwithstanding his resignation.

14 sort. In fact, H. R. 201 expressly contemplates that the House Committee on the Judiciary's recommendations "may include: (1) A recommendation that the [sic] any or all ofthe five members ofthe West Virginia Supreme Court ofAppeals not be impeached[.] " App. at 107 (emphasis added).

Second, when the House ultimately did consider articles ofimpeachment on August 13 and

14, 2018, no articles were introduced or adopted with respect to Justice Ketchum. Thus, at no point before or even after Justice Ketchum resigned did the House vote to impeach him.

To summarize, given that (a) Justice Ketchum resigned shortly before agreeing to plead guilty to a felony that disqualified him from office; (b) as ofthe date that Justice Ketchum anounced his resignation, the House had taken no action beyond authorizing an investigation; and ( c) the articles of impeachment that the House ultimately adopted did not involve Justice Ketchum,

Relator's assertion that Mr. Armstead and/or the House ofDelegates somehow "created" the vacancy in Justice Ketchum's seat on the Supreme Court ofAppeals is plainly false.

B. By its plain language, Article VI, § 15 only applies to newly created offices, not vacancies in existing offices.

Even ifthe House ofDelegates had somehow "created" the vacancy in Justice Ketchum's seat (which it did not), Mr. Armstead's appointment to that seat still would not violate Article VI,

§ 15 of our state's Constitution. Article VI, § 15 states, in relevant part, that "[n]o senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office ofprofit under this state, which has been created . .. during such term[.]" W. Va. Const. art. VI, § 15 (emphasis added). Although this Court has not had occasion to decide the issue of whether the phrase "civil office ofprofit under this state ... created ... during such term" includes a vacancy in an existing office, the plain language ofthis provision indicates that it does not. Ifthe authors of our Constitution had meant to prohibit appointment to a vacancy created during a

15 legislator's term., they would have included the term. "vacancy" instead ofonly the term "office."

Indeed, the authors used the word "vacancy" at many points elsewhere in our Constitution. For example, in Article vm, § 7, the authors stated that

Iffrom any cause a vacancy shall occur in the office ofajustice ofthe supreme court ofappeals or a judge ofa circuit court, the governor shall issue a directive ofelection to fill such vacancy in the manner prescribed by law for electing a justice or judge of the court in which the vacancy exists, and the justice or judge shall be elected for the unexpired term; and in the meantime, the governor shall fill such vacancy by appointment until ajustice or judge shall be elected and qualified. Ifthe unexpired term be less than two years, or such additional period, not exceeding a total ofthree years, as may be prescribed by law, the governor shall fill such vacancy by appointment for the unexpired term.

W. Va. Const. art. VIII, § 7 (emphasis added); see also W. Va. Const. art. IV, § 7; W. Va. Const. art.

VI, § 33; W. Va. Const. art. VII, § 9; W. Va. Const. art. VII, § 10; W. Va. Const. art. VII, § 16; W.

Va. Const. art. VIII, § 9; and W. Va. Const. art. VID, § 10 (all including the word ''vacancy'' and/or

"vacancies"). Thus, when the authors ofour Constitution meant to address a vacancy, they used the word ''vacancy.''

However, Article VI, § 15 does not say that no delegate shall be elected or appointed to any

''vacancy'' which has been created during his or her term; it states that no delegate shall be elected or appointed to any "civil office ofprofit" which has been created during his or her term. This Court has recognized that "[w ]ords used ina state constitution, as distinguished from any other written law, should ~e taken in their general and ordip.ary sense." Syl. Pt. 6, State ex reI. Trent v. Sims, 138 W.

Va. 244, 77 S.E.2d 122 (1953). With this principle in mind, the "office" ofJustice ofWest Virginia

Supreme Court ofAppeals was not "created" during Mr. Armstead's term inthe House ofDelegates; it has existed for well over a century. Thus, Mr. Armstead has not been appointed to any "office" that was "created" during his term.

16 C. The office of Justice of the Supreme Court of Appeals is an "office to be filled by election of the people" excepted from Article VI, § 15.

Article VI, § 15 prohibits the appointment of a legislator to an office created during his or her term "except offices to be filled by election by the people." W. Va. Const. art. VI, § 15. Itis true that in Rist, supra, this Court rejected the argument that this language excepts offices that are elective in nature, and instead held that the exception only applies where a legislator is in fact elected

(as opposed to appointed) to a particular office. See 206 W.Va. at 264, 273,524 S.B. 2dat 185,194.

However, in 2006, approximately six years after Rist, the Legislature enacted W. Va. Code §

51-3-18(h), which states as follows:

The Legislature declares that the offices of magistrate, judge of the family court, judge ofthe circuit court and Justice ofthe Supreme Court ofAppeals are elective in nature and are all "offices to be filled by election by the people" within the meaning ofthe exceptions clause ofsection fifteen, article VI ofthe Constitution of West Virginia, which clause describes the kind and character ofthe offices thereby removed from the operation ofthe prohibitory clause and not the method by which the offices are to be filled.

W. Va. Code § 51-3-18(h). Thus, since 2006, it has been the policy of this State that (a) the exceptions clause in Article VI, § 15 of our Constitution describes the kind and character of the offices excepted, not the method by which the offices are actually filled, and (b) the office ofJustice ofthe Supreme Court ofAppeals falls within that exceptions clause. Accordingly, Article VI, § 15 is no impediment to Mr. Armstead's appointment to fill Justice Ketchum's seat on the Supreme

Court ofAppeals until the upcoming special election.

CONCLUSION

As demonstrated above, Relator has failed to establish any impediment to Governor Justice's lawful appointment of Respondent Armstead to fill Justice Ketchum's seat on the Supreme Court

17 of Appeals until the special election set to take place on November 6, 2018. As a result, Mr.

Armstea4 respectfully requests that this Court deny Relator's petition for writ ofmandamus and/or prohibition.

Respectfully submitted,

TIM ARMSTEAD

By Counsel,

Michael . Carey, David R. Pogue, WVSB Carey, Scott, Douglas & 901 Chase Tower 707 Virginia Street, East P.O. Box 913 Charleston, WV 25323 (304) 345-1234 [email protected] [email protected]

18 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

No. 18-0789

State of West Virginia ex rei. William K. Schwartz, Petitioner, v.

James Justice, Governor of the State of West Virginia; Mac Warner, West Virginia Secretary of State; Evan Jenkins; and Tim Armstead, Respondents.

CERTIFICATE OF SERVICE

I, Michael W. Carey, do hereby certify that on the 19th day ofSeptember, 2018, I have served the foregoing "Respondent Tim Armstead's Response to Relator William K. Schwartz's Combined Writ of Mandamus and Writ of Prohibition Directing the Secretary of State to Remove Evan Jenkins' Name from the Election Ballot on November 6, 2018 and to Prohibit Governor Justice's Appointments of Jenkins and Armstead to the Vacant Supreme Court Seats" upon the parties to this action, via Electronic M~l and United States Mail, postage pre-paid, addressed as follows:

Teresa C. Toriseva, Esq. Ancil G. Ramey, Esq. Joshua O. Miller, Esq. Steptoe & Johnson LLP Toriseva Law P.O. Box 2195 1446 National Road Huntington, WV 25722 Wheeling, WV 26003 [email protected] . .' [email protected] Counsel for Respondent Evan Jenkins Counsel for Relator

S. Paige Flanigan, Esq. Flanigan Law Office 1407 E. Main Street Princeton, WV 24740 [email protected] Counselfor Relator