IN THE SUPREME COURT OF APPEALS OF WEST

No. 18-0789

STATE OF ex reI. WILLIAM K. SCHWARTZ, a registered voter in Kanawha County, West Virginia, Petitioner,

v.

THE HONORABLE]AMESJUSTICE, Governor ofWest Virginia; THE HONORABLE , Secretary ofState ofWest Virginia; EVANJENKINS, real party in interest; and TIMARMSTEAD, real party in interest, Respondents

VERIFIED RESPONSE TO COMBINED WRIT OF MANDAMUS AND WRIT OF PROIllBITION

Counsel for Petitioner Counsel for Respondent Jenkins

Teresa C. Toriseva Ancil G. Ramey wv Bar No. 6947 WV Bar No. 3013 Joshua D. Miller Steptoe &Johnson PLLC WV Bar No. 12439 P.O. Box 2195 Toriseva Law Huntington, WV 25722-2195 1446 National Road (304) 526-8133 Wheeling, WV 26003 [email protected] (304) 238-0066 [email protected]

S. Paige Flanigan WV Bar No. 6015 Flanigan Law Office 1407 East Main Street Princeton, WV 24740 (304) 487-2338 [email protected] TABLE OF CONTENTS

I. QUESTIONS PRESENTED ...... 1

II. STATEMENT OF THE CASE...... 3

III. SUMMARY OF ARGUMENT ...... 5

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

V. ARGUMENT

A. STANDARD OF REVIEW...... 6

B. BECAUSE RESPONDENT JENKINS HAs BEEN ADMITIED TO THE PRACTICE OF LAW IN THE STATE OF WEST VIRGINIA FOR MORE THAN THIRTY YEARS, HE IS ELIGIBLE FOR THE OFFICE OF JUSTICE OF THE SUPREME COURT OF APPEALS UNDER W. VA. CONST., ART. VIII, § 7 ...... 7

C. WHERE JUDICIAL SELECTION IN WEST VIRGINIA IS ON A NON­ PARTISAN BASIS; WHERE THIS COURT HELD IN BIAFORETHAT THE GOVERNOR Is NoT' REQUIRED TO FILL VACANCIES WITH PERSONS WITH TliE SAME POLITICAL PARTY AFFILIATION AS THE DEPARTING INCUMBENT AT TIl!! 'TIME OF TliEIR ELECTION; AND WHERE THERE IS No CONSTIT{T'!IONAL, STATUTORY, REGULATORY, OR COMMON LAW REQI)IREMENT, LIKE THERE IS FOR CERTAIN STATE OFFICIAl,S, SUCH AS FOR THE SENATE AND HOUSE OF DELEGATES, RESPONDENT JENKINS WAS ELIGIBLE FOR NONPART1C;AN ApPOINTMENT TO A VACANCY IN THE OFFICE OF JUSTICE OF THE SUPREME COURT OF APPEALS...... 23

VI. CONCLUSIC)N ...,.,...... " ...... , ...... , ...... 29 l'AllLE OF AUT) IOI(I'J'(ES

CASES

Ademiluyi v. Maryland .StateBoard ofElections, 458 M9.1,.181 A.3d716..{2018..) ...... , ...... , ..... ,...... 22

Chandler v. Martin ex rei. State) . 2014 Ark. 219,433 S. W.3d 884 (2014) ...... , ...... , ...... 22

Cross v. Vandyke, 375 Mont. 535, 332 P.3d 215 (2014) ...... 18-21,22

Davis v. City ofPlainfield, 389 NJ Super. 424,913 A.2d 166 (2006) ...... , ...... 15-16,23

Goines v. Heiskell, 362 F. Supp. 313 (S.D. W, Va. 1973) ...... ,...... 25

I •• • • ,.. Holloway v. Hechler, . .. " . '. .'. ."...... 817 F. Supp. 617 (S.D. W. Va. 1992) ...... 25

In re Palomo, 366 S.W.3d 193 {Tex. 2012) ...... , ...... 22-23

In re Simmons, 65 Wash.2d 88, 395 P.2d 1013 (1964) " ...... 23

Kelly v. Martin ex rei. State) 2014 Ark. 217) 433 S. W.3d 896 (2014) ...... 22

Martin v. Randolph Crtfy. Bd. ol~auc., 195 W. Va. 297, -465 S.E.2d 399 (1995) ...... " ...... " ...... 20

Rice v. Underwood) 205 W. Va. 274, 517 ~.E.2d 751 (1996) ...... 6-7

State v. Elder) 152 W. Va. 571, 165 S.E.2d 108 (1968) ...... , ...... 20

n State ex rei. Biafore v. Tomblin) 236 W. Va. 528, 782 S.E.2d 223 (2016) ...... passim

State ex rei. Brotherton v. Blankenship, 157 W. Va. 100, 207 S.E.2d 421 (1973) ...... •...... 19

State ex rei. Cooper v. Tennant; 229 W. Va. 585, 730 S.E..zd 368 (2012): ...... :.... : ...... 25-26

State ex rei. Frazier v. Meadows, 193 W. Va. 20, 454 S.E~2d 65 (1994) ...... : ...... 20

State ex rei. Hash v. McGraw, 180 W. Va. 428, 376 S.E.2d 634 (1988) ...... 6

State ex rei. Haught v. Donnahoe, 174 W. Va. 27,321 S.E.2d 677 (1984) ...... passim

State ex rei. Judlciallnvestigatlon Com 'n v. Putnam County Bd. ofBallot Com'rs) 237 W. Va. 99,785 S.E.2d 805 (2016) ...... 6

State ex rei. Kucera v. Clty ofWheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969) ...... 6

State ex rei. Robb v. Caperton) 191 W. Va. 492, 446 S.E.2d 714 (1994) ...... 27

State ex rei. Smith v. Gore, 150 W. Va. 711, 43 S.E.2d 791 (1965) ...... 25

CONSTITUTIONS

W. Va. Canst., ar!:. II, § 2 ...... 23,24

W. Va. Canst., art. II, § 4 ...... 24, 25

W. Va. Const., art. III, § 7 ...... 23,24

W. Va. Canst., art. Ill, § 16 ...... 24 W. Va. Const. art. VI, § 15 ...... ,..... " ...... , .., ...... 24

W. Va. Const., art. VII, § 7...... 23,24

W. Va. Const., art. VIII, § 2 ...... 27

W. Va. Const., a~t. VIII, § 5 ...... 7

W. Va. Const., art. VIII, § 7. ..., ...... passim

W. Va. Const., art. VIII, § 10 ...... , ...... 27

W. Va. Const., Veterans Bonus Amendment (Ko~ovo, Afghanistan, and Iraq) ...... 11

W. Va. Const., Veterans Bonus Amendment (Persian Gulf, Lebanon, Grenada and Panama) ...... , ...... ,...... 11

W. Va. Const., Vietnam Veterans Bonus Amendment ...... 11

STATUTES

W. Va. Code § 3-1-3a(1) ...... 13

W. Va. Code § 3-5-6 ...... 26

W. Va. Code § 3-5-6a ...... ;...... 26

W. Va. Code § 3-5-6b ...... , ...... ,...... 26

W. Va. Code § 3-5-6c ...... ,...... 26

W. Va. Code § 3-S-6d ., ...... 26

W. Va. Code § 3-10-3{b) ...... ·...... ,...... 2

W. Va. Code § 3-10-3(d)(3)...... ·...... " ...... , ...... 2

W. Va. Code § 3-10-5(a)...... " .. ,...... 2,23,28

W. Va. Code § SB-2E-3(4) " ...... 13

IV W. Va. Code § 7-1IB-lS(d)(2) ...... " ...... 13-14

W. Va. Code § 8-14-17(b) ...... 14

W. Va. Code § 8-15-22 ...... " ...... t ...... 12

W. Va. Code § 8-25-5(C;)(5) ...... 13

W. Va. Code § 9-3-6(c)(2) ...... " ...... 14

W. Va. Code § 11-3-10(c) ...... ,...... ,...... , ...... ,...... 13

W. Va. Code § 11-13C-3(b)(11)(D) ..... ,...... , ...... ,...... 14

W. Va. Code § 11-13C-14(e)(3)(D) ...... ,...... 14

W. Va. Code § 11-13D-3f(e)(8)(D) ...... 14

W. Va. Code § 11-13Q-3(b)(13)(D)'...... " ...... 14 W. Va. Code § 15-2-30(a) ...... 11

W. Va. Code § 15-2-31(a) ...... 12

W. Va. Code § 16-3C-3(c) ...... ,.. " ...... 13

W. Va. Code § 19-1A-3a(c)(3) (F) (9) ...... 14

W. Va. Code § 19-12A-6...... 13

W. Va. Code § 19-21A-6(a)...... , ...... _...... 26

W. Va. Code § 19-23-2(b)...... : .....: ...... 12

W. Va. Code § 20-1-2 ...... < ...... , ...... 11

W. Va. Code § 20-1-2 .,...... , ...... 11

W. Va. Code § 20-2-42a...... ,...... 12

v W. Va. Code § 20-2-42b...... , ...... ,...... 12

W. Va. Code § 20-2-42j...... : ...... :...... 12

W. Va. Code § 20-2-4~x(c) ...... :...... 11

W. Va. Code § 30-1B-5(d) ...... :...... ~ ...... 12

W. Va. Code § 30-7-15b(a)(3) ...... ~ ...... 12-13

W. Va. Code § 30-21-7(c)...... , ...... 12

W. Va. Code § 30-26-7(b) ...... 11-12

W. Va. Code § 30-36-4(b)(2) ...... 12

W. Va. Code § 30-36-10(c)(4) ...... 11

W. Va. Code § 33-4-15a(d)(2) ...... 13

W. Va. Code § 33-4-15a(e)(IV)(a) ...... 13

W. Va. Code § 33-12C-5(d)(2)(D) ...... 14

W. Va. Code § 33-16A-1 ...... , ...... 12

W. Va. Code § 46A-6J-3(c) ...... 13

W. Va. Code § 47-11B-4 ...... 13

W. Va. Code § 50-1-4 ...... 13

W. Va. Code § 51-1-1 ...... 4,27

W. Va. Code § 51-3-18(f) ...... " ...... 5

W. Va. Code § 60-3A-I0a...... 11

W. Va. Code § 61-7-4(a)( 4) ...... 12

vi RULES

R. App. P. 21 ...... 6

R. Lawyer Disc. P. 3.26(a) ...... 21

OTHER

W. Va. State Bar By...Laws, art. II, § 1...... :..... ;...... ;.... ·...... 1, 7

W. Va. State Bar By;Laws,' art. II, § 4 ...... 1, 8, 9 W. Va. State Bar By-Laws, art. III, § 1...... 8

W. Va. State Bar Const., art, III ...... 1, 7

W. Va. State Bar Rules and Regulations, ch. IV, § 3...... 8

W. Va. State Bar Rules and Regulations, ch. VII, § 5 ...... 8

W. Va. State Bar Rules and Regulations, ch. VII, § 5.5...... 9

vii I. QUESTIONS PRESENTED

1. Is the Respondent, EvanJenkins, admitted to the practice oflaw in the State of West Virginia more than thirty years ago and an "active" member of The West

Virginia State Bar for twenty-six of those years, eligible for appointment and election as

Justice to the Supreme Court of Appeals where W. Va. Const., art. VIII, § 7 provides,

"No person may hereafter be elected as a justice of the supreme court of appeals unless he has been admitted to practice law for at least ten years prior to his election?"

Respondent Jenkins submits that the answer is in the affirmative where:

1. The State Bar Constitution provides the « membership of the West Virginia State Bar shall consist ofall persons lawfully admitted to the practice ofthe law in the State ofWest Virginia. ,,1

2. The State Bar By-Laws provide the "membership of the state bar shall be divided into three classes: (a) Active members; (b) active but not practicing members; and (c) inactive members.,,2

3. The State Bar By-Laws provide, "Any member of the state bar not under suspension, who does not desire to engage in the practice of law in this State, may, upon written request to the executive director, be enrolled as an inactive member, so long as such member shall each year duly pay the annual inactive membership fee to the state bar.,,3

4. Many persons who have been appointed or elected as aJustice to this Court, including some Circuit Judges, have been on inactive status, though still a member of the State Bar, for many years immediately before their appointment or election) and other courts have held that a person is still admitted to the practice of law while on inactive status.

1 W. Va. State Bar Const.. art. III.

2 W. Va. State Bar By-Laws, art. II, § 1.

3 W. Va. State Bar By-Laws, art. II, § 4.

1 2. Is the Respondent, Evan Jenkins, eligible for appointment as Justice to the

Supreme Court ofAppeals where there is no legal requirement that he be a member of the same political party as the person whose vacancy he has been appointed to fill?

RespondentJenkins submits that the answer is in the affirmative where:

1. W. Va. Code § 3-1O-3(b) provides, "Any vacancy occurring in the officer ] ofJustice of the Supteme Court of Appeals ... is filled by the Governor of the 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," and does not restrict the Governor's power of appo.inlment to a~y political party.

2. W. Va. Code § 3-1O-3(d)(3) provides, "When the vacancy occurs after the close of candidate .filing for the primary election and not later than eighty-four days before the general election, and, if the unexpired term be for a period of greater than two years, the vacancy shall be· filled l'Iy election in a nonpartisan judicial election held concurrently with the general election, and the appointment shall continue until a successor is elected and certified," compelling the election for the vacancy for which Respondent Jenkins was appointed to be conducted by nonpartisan ballot.

3. There is no legal requirement that the Governor appoint a person of the same political party to the office ofJustice of the Supreme Court of Appeals as the political party of the person whose vacancy is being filled and when the Governor's power of appointment is so restricted, it is done so by statute such as W. Va. Code § 3-1O-5(a).4

4. In State ex reI. Biafore P. Tomblin, 236 W. Va. 528, 782 S.E.2d 223 (2016), this Court held that the Governor is not compelled to appoint someone of the same political party as that of the person whose vacancy is being filled at that time the person was elected to the office in question.

4 W. Va. Code § 3-10-5(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. ").

2 II. STATEMENT OF THE CASE

On September 13, 2018, the Petitioner, William K. Schwartz ["Petitioner"], a candidate for the office ofJustice of the Supreme Court of Appeals, filed a "Combined

Writ ofMandamus and Writ ofPro,hibition " ["Petition"] in this Court.s

The Petitioner's Statement of the Case weaves a tangled web of political intrigue, but setting aside the partisan noise bearing more resemblance to a campaign press release than to an appellate brief, here are the salient facts from the Petition relative to

Respondent Jenkins:

• "In April of 2015, then Governor Tomblin signed a bill into law that made elections for all judges, including Supreme Court justices, non­ partisan.,,6

• "Robin Davis resigned her seat August 12, 2018.,,7

• "On August 25, 2018, Governor Justice appointed ... Evan Jenkins to fill Robin Davis' seat on the Court.,,8

• "Jenkins was admitted to practice law in West Virginia April 5, 1988. ,,9

Those are the only facts one needs to know, not the "battle of the curriculum vitae" irrelevant references made throughout the PetitionlO by someone who is opposing

5 App. at 1-35.

6 App. at 7.

7 App. at 9. 8Id.

9 App. at 10.

3 Respondent Jenkins in this November's election, forgetting that, as the Petitioner,

Respondent Jenkins was recommended to the Governor by the independent Judicial

Vacancy Nomination Commission as "best-qualified.,,11

The Governor chose Respondent Jenkins from those "best-qualified," not the

Petitioner, but instead of confining the Petitioner's battle to the campaign trail, he seeks to preempt the will of the voters and have someone "best-qualified" removed from office and from the ballot with two arguments neither ofwhich have any merit.

First, Respondent Jenkins was admitted to the practice oflaw in the State of West

Virginia more than thirty years ago and has been an "active» member of The West

Virginia State Bar for twenty-six ofthose years, and is fully qualified for appointment and election as Justice to this Court where W. Va. Const., art. VIII, § 7 provides, "No person may hereafter be elected as a justice of the supreme court of appeals unless he has been admitted to practice law for at least ten years prior to his election. "

Second, West Virginia abandoned the partisan selection of judges in 2015/2 including Justices of this Court; this Court held in Biafore that the Governor may fill

10 See, e.g.) App. at J.O ("This was the first and last job Jenkins held that required him to practice law") App. at 11 "Jenkjns has run for five different offices ten different times"); id. ("He has lost two elections, his only statewide elections, where voters rejected him ")j id. ("Until 2013, Jenkins was a registered Democrae'); id. ("Evan Jenkins ... admits he has no recent trial experience"); App. at 11-12 ("When asked to list honors, prizes or awards received, Evan Jenkins list 3 pages of awards, overwhelming in their volume, and each one ofthem political and none related to the practice oflaw").

11 App. at 40-41.

12 W. Va. Code § 51-1-1 {"Effective with the primary election of 2016, all elections for justices will be on a nonpartisan basis by division. Beginning in 2016, there will no longer be 4 vacancies with persons of a different political affiliation of the departing official at the time of his or her election; and there is no constitutional, statutory, regulatory, or common law requirement that Respondent Jen.kins be a member of the same political party as the Justice whose vacancy he has been appointed and is seeking election to fill.

Accordingly, on its face, the Petition has no merit, and this Court should expeditiously enter an order denyillg it.13

Ill. SUMMARY OF ARGUMENT

The argument that Respondent Jenkins lacks the requisite legal qualifications has no merit because W. Va. Const., art. VI, § 7, states, "No person may hereafter be elected as a justice ofthe supreme court ofappeals unless he has been admitted to practice law for at least ten years prior to his election," and he has been admitted to the practice oflaw for more than thirty years with more twenty-six of those thirty years as an "active" member.14

The argument that Respondent Jenkins is ineligible to be appointed because he is a member of the Republican Party has no merit because West Virginia has abandoned the partisan selection of judges; this Court held in Biafore that it is not unconstitutional for

primary elections lield for the office of justice and all elections for justice are to be held in the nonpartisan judicial election as set forth in article five, chapter three of this code. All indications ofparty identification on election ballots for that office shall be omitted. ").

13 Indeed, W. Va. Code §.51-3-18(f) expressly provides, "An action timely brought to challenge the qualifications or eligibility of an appointee to judicial office shall be given priority over all other actions on the docket ofthe court in which the action is brought. "

14 App. at 36-39.

5 the Governor to fill the vacancy in an elective office of someone with a different political party affiliation than the incumbent at the time of the incumbenes election; and

Respondent Jenkins is fully eligible for appointment and election, on a nonpartisan basis, as Justice to this Court.

IV• STATEMENT REGARDING ORAL ARGUMENT AND DECISION

Respondent Jenkins submits that expedited resolution of the Petition under R.

App. P. 21 is appropriate where the Petition is without merit.

V.ARGUMENT

A. STANDARD OF REVIEW

"A writ of mandamus will not issue," this Court has long held, "unless three elements coexist-(l) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part ofrespondent to do the thing which the petitioner seeks to compel; and (3) the absence ofanother adequate remedy. ,,15 This same standard of review applies in election mandamus cases.16 Here, the Petition is without merit and no rule to show cause in mandamus should issue.17

15 SyI. pt. 2, State ex reI. Kucera v. City ofWheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).

16 See, e.g., State ex rei. Judicial Investigation Com 'n v. Putnam County Bd. ofBallot Com 'rs, 237 W. Va. 99,785 S.E.2d 805 (2016).

17 Curiously, the Petition also references the issuance of a writ of prohibition, citing State ex ret. Hash v. McGraw, 180 W. Va. 428,429,376 S.E.2d 634, 635 (1988), for the proposition that a "writ of prohibition is proper when a judge is improperly appointed" [App. at 16] but a writ of prohibition does not lie against an executive official, like the Respondent Governor and Respondent Secretary of State, but lies only against a judicial official, like the ChiefJustice in the Hash case. See Rice v. Underwood, 205 W. Va. 274, 277 & n.1, 517 S.E.2d 751, 754 & n.1 (1996)("This matter was originally brought as a writ ofprohibition against Governor Underwood 6 B. BECAUSE RESPONDENT JENKINS HAs .BEEN ADMITIED TO THE PRACTICE OF LAW IN THE STATE OF WEST VIRGINIA FOR MORE THAN TlDRTY YEARS, HE IS EUGmLE FOR THE OFFICE OFJUSTICE OF THE SUPREME COURT OF APPEALS UNDER W. VA. CONST., ART. vm, § 7.

As noted, W. Va. Const., art. VIII, § 7 states, "No person may hereafter be elected as a justice of the supreme court of appeals unless he has been admitted to practice law for at least ten years prior to his election" and Respondent Jenkins was admitted to the practice oflaw in the ~.tate ofWest Virginia on AprilS, 1988/8 more than thirty years ago.

The State Bar Constitution provides the "membership of the West Virginia State

Bar shall consist of all persons lawfully admitted to the practice of the law in the State of

West Virginia."19 Again, Respondent Jenkins was admitted to the practice of law in the

State ofWest Virginia on AprilS, 198.8.20

Persons admitted to the practice of law in the State of West Virginia have various options regarding their membership status. Specifically, the State Bar By-Laws provide in the Circuit Court ofKanawha County. The circuit court correctly recognized that Appellant's petition for writ of prohibition was inappropriate since it was not directed to an inferior tribunal. . . . Prohibition does not lie to control a legislative body or to prevent an executive act. State ex ret. Mz'ller v. Smith, 168 W. Va. 745, 755, 285 S.E.2d 500, 506 (1981). The writ of prohibition should be used only to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction. State ex ret. City ofHim#ngton 1'. Lombardo, 149 W. Va. 671, 677, 143 S.E.2d 535, 540 (1965).")(emphasis supplied). Consequently, Respondent Jenkins will not address requested relief that is unavailable to the Pet.itioner.

18 App. at 8-11. Indeed, Respondent Jenkins was not only admitted to the practice of law in the State of West Virginia on AprilS, 1988, his status was "active" until December 2,2014, in conjunction with his election to the House of Representatives, taking office on January 3, 2015, when he changed his status to "inactive," until August 8, 2018, when he changed his status to "ar-tive" in conjunction with the submission of his application to the Judicial Vacancy Advisory Commission for consideration for a vacancy on this Court. Id.

19 W. Va. State Bar Const., art. III.

20 App. at 38.

7 the "membership of the state bar shall be divided into three classes: (a) Active members;

(b) active but not practicing members; and (c) inactive members." 21 All are members of the State Bar after their admission to the practice oflaw in the State of West Virginia.

The State Bar By-Laws merely provide flexi~ility relative to fees and continuing legal education requirements relative to periods ofthe active or inactive practice oflaw.

For example, the State Bar By-Laws provide, "Any member of the state bar not under suspension, who does not desire to engage in. the practice of law in this State, may, upon written request to the executive director, be enrolled as an inactive member, so long as such member shall each year duly pay the annual inactive membership fee to the state bar. ,,22 Presently, the annual inactive membership fee is $100/3 but judges and members over the age ofseventy are not required to pay any inactive membership fees. 24

Similarly, the State Bar's Rules and Regulations provide, "As a condition of maintaining his or her license to practice law in the State of West Virginia, every active member of the state bar shall satisfy the following minimum continuing legal education requirements, ,,25 thereby relieving inactive members from the MCLE requirements.

The State Bar By-Laws allow specific categories of those admitted to the practice of law in the State of West Virginia to be automatically eligible for inactive membership

21 W. Va. State Bar By-Laws, art. II, § 1.

22 W. Va. State Bar By-Laws, art. II, § 4.

23 W. Va. State Bar By-Laws, art. III, § 1.

24 W. Va. State Bar Rules and Regulatiqns., ch: IV, § 3.

25 W. Va. State Bar Rules and Regulations, ch. VII, § 5 (emphasis supplied)

8 status: "Every judge of a court of record of this State shall be enrolled as an inactive member during his or her continuance in such office, but shall not be required to pay the annual inactive membership fee to the state bar. A member ofthe faculty ofthe College of

Law, who has not engaged in the practice of law in this State may be enrolled as an inactive member.·,,26

Similarly, the State Bar's -Rules and Regulations provide, "Active but not practicing members, Justices of the Supreme Court of Appeals, Circuit Judges, Family

Court Judges, Senior Status Justices, Senior Status Circuit Judges, the Clerk of the

Supreme Court of Appeals, the Deputy Clerk of the Supreme Court of Appeals, and any other individuals as may hereafter, from time to time, be designated by the Supreme

Court ofAppeals, are not required to comply with these [MCLE] requirements. ,,27

Taken together, these State Bar Constitution, By-Laws, and Rules and Regulations demonstrate the absurdity ofPetitioner's argument that a person - even ifadmitted to the practice of law for thirty, forty, or fifty years - is ineligible unless his or her membership was "active" for ten years immediately preceding his or her appointment or election as

Justice ofthe Supreme Court ofAppeals.

For example, the Honorable George M. Scott, appointed as Justice to the Supreme

Court of Appeals on November 4,1999, had served as a Circuit Judge and would not have been on "active" status for the ten years immediately preceding his appointment.

26 W. Va. State Bar By-Laws, art. II, § 4.

27 W. Va. State Bar Rules and Regulations, ch. VII, § 5.5. 9 The Honorable Elliott "Spike" Maynard) ejected as Justice to the Supreme Court ofAppeals in November 1996 and taking office on January 1,1999, had served as a Circuit

Judge and would not have been on "active" status for the ten years immediately preceding his election.

The HonQrable Larry V. Starcher, elected as Justice to the Supreme Court of

Appeals in November 1996, and taking office on January 1, 1999, had served as a Circuit

Judge and would not have been on "active" status for the ten years immediately preceding his election.

The Honorable Arthur M. Recht, appointed as Justice to the Supreme Court of

Appeals on May 26, 1995, had served as a Circuit Judge and would not have been on

"active" status for the ten years immediately preceding his appointment.

The Honorable , elected as Justice to the Supreme Court of

Appeals in November 1988, and taking office on January 1, 1989, had served as a Circuit

Judge and would not have been on "active" status for the ten years immediately preceding her election.

The Honorable Thomas E. McHugh, elected as Justice to the Supreme Court of

Appeals in November 1980, and taking office on January I, 1981, had served as a Circuit

Judge and would not have been on "active" status for the ten years immediately preceding his election.

The reason for all of these examples is that W. Va. Const., art. VIII, § 7 states,

"No person may hereafter be elected as a justice of the supreme court of appeals unless

10 he has been admitted to practice law for at least ten years prior to his election" and says nothing about a requirement of "active" status for the ten years immediately preceding someone's appointment or election to the Court. And, the word "prior," is not preceded by the word "immediately," as much as the Petitioner might imagine it so. Or, stated another way, when the drafters of constitutional or statutory provisions mean

"immediately prior" relative to a temporal requirement, they say "immediately prior. ,,28

28 See, e.g" W. Va. Const., Vietnam Veterans Bonus Amendment ("Such bonus shall be paid to all persons who rendered active service in the armed forces of the United States between the fIrst day of August, one thousand nine hundred sixty-four, and the date determined by the president or Congress of the United States as the end of involvement of United States armed forces in the Vietnam conflict, both dates inclusive, who were bona fIde residents of the state of West Virginia at the time of their entry into such active service and for a period of at least six months immediately prior thereto"); W. Va. Const., Veterans Bonus Amendment (Kosovo, Mghanistan, and Iraq)(" For purposes of this amendment not more than one bonus shall be paid to or on behalf of the service ofa veteran. In order to be eligible to receive a bonus, a veteran must have been a bona fide resident of the State of West Virginia at the time of his or her entry into active service and for a period of at least six months immediately prior thereto"); W. Va. Const., Veterans Bonus Amendment (Persian Gulf, Lebanon, Grenada and Panama)("In order to be eligible to receive a bonus, such persons must have been bona fide residents of the State of West Virginia at the time of their entry into such active service and for a period of at least six months immediately prior thereto, who have not been separated from such service under conditions other than honorable."); W. Va. Code § 60-3A-10a ("For purposes of this section a bidder shall be considered to be a West Virginia resident if the bidder: (1) has resided in this state for at least four years immediately prior to the date on which the bid is opened; or, if the bidder is an applicant other than an individual, has had its headquarters or principal place of business in this state for at least four years immediately prior to that date ...."); W. Va. Code § 15-2­ 30(a) ("Provided, That if the retirant was not employed with the agency for twelve months immediately prior to the disability award, the amount of monthly salary shall be annualized for the purpose of determining the benefit."); W. Va. Code § 20-2-42x(c)("A Class XS license is required for residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date oftheir application for a license and who reach sixty-five years of age on or after January 1, 2012."); W. Va. Code § 30-36-10(c)(4)("Performance of the practice of acupuncture in accordance with the law of another jurisdiction or jurisdictions for a period of at least three years within the five years immediately prior to application that consisted of at least five hundred patient visits per year. ")j W. Va, Code § 20-1-2 ('''Nonresident' means any person who is a

11 citizen of the United States and who has not been a domiciled resident of the State of West Virginia for a period of thirty consecutive days immediately prio:r to the date of his or her application for a license or permit except any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition."); W. Va. Code § 20-1-2 ("'Resident' means any person who.is a citizen of the United States and who has been a domiciled resident of the State of West" Virginia for a period of thirty consecutive days or more immediately prior to the date of his or her application for license or permit."); W. Va. Code § 30-26-7(b)("Within six months following the effective date of this article, any applicant for a license who has been engaged in the practice ofdealing in or fitting ofhearing aids in this state for a period of three years immediately prior to such effective date, shall be so registered and issued a license without being required to undergo or take the examination required by this article. "); W. Va. Code § 8-15-22 ("Provided, That no individual shall be eligible for promotion from the lower grade to the next higher grade until such individual shall have completed at least two years of continuous service in the next lower grade iIi the department immediately prior to said examination and has completed the registered apprenticeship and certification program under article fifteen-a, chapter eight of this code. "); W. Va. Code § 20-2-42j ("The Class X license shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immedia:tely prior to the date of their application for a license."); W. Va. Code § 30-1B-5(d)("An applicant under this section may submit an application for waiver of the temporary license application fee, and the board shall grant the waiver if the applicant has paid a fee for his or her previous license, certification, or registration in another state, the District of Columbia, or a possession or territory of the United States, within six months immediately prior to submitting an application for temporary license, certification or registration."); W. Va. Code § 15-2-31(a)(CCProvided, That if the retirant had not been employed with the fund for twelve months immediately prior to the disability award, the amount of monthly salary shall be annualized for the purpose of determining the benefit."); W. Va. Code § 20-2-42b ("It shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date of their application for a license. "); W. Va. Code § 33-16A-1 ("A group policy or group subscriber contract which provides hospital, surgical or major medical expense insurance, or any combination of these coverages, on an expense incurred basis, but not a policy which provides benefits for specific diseases or for accidental injuries only, shall provide that an employee or member whose insurance under the group policy or contract has been terminated for any reason, including discontinuance of the group policy in its entirety or of an insured class, who has been continuously insured under the group policy, or under any group policy providing similar benefits which it replaces, for at least three months immediately prior to termination, shall be entitled to have issued to him by the insurer a converted policy of health insurance."); W. Va. Code § 30­ 36-4(b)(2)("For at least three years immediately prior to appointment have been engaged in the practice of acupuncture in the state."); W. Va. Code § 30-21-7(c)("Any person who is engaged in the practice of psychology in this state, or is engaged in any of the activities described in subdivision (e), (I), (2) or (3), section two of this article, in this state, on the effective date of this article and has been so engaged for a period of two consecutive years immediately prior thereto 12 shall be eligible for a license to engage in the practice of psychology without examination ...."); W. Va. Code § 20-2-42a ("It shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of30 consecutive days or more immediately prior to the date of their application for a license. "); W. Va. Code § 61-7-4(a)(4)("That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an unlawful user thereof as evidenced by either of the following within the three years immediately prior to the application."); W. Va. Code § 19-23-2(b)("At least eighty percent of the individuals employed bya licensee at any horse or dog race meeting must be citizens and residents of this State and must have been such citizens and residents for at least one year. For the purpose- of this subsection, citizens and residents of this State shall be construed to mean individuals who maintain a permanent place of residence in this State, and have been bona fide residents and citizens ofthis State for a period ofone year immediatelyprior to the filing of their applications for employment. "); W. Va. Code § 30-7-1Sb(a)(3)("Have completed forty-five contact hours of education in pharmacology and clinical management of drug therapy under a program approved by the board, fifteen hours ofwhich shall have been completed within the two­ year period immediately prior to entering into a prerequisite collaborative relationship. "); W. Va. Code § 46A-6J-3(c)(ccAny business offering an item for sale at a reduced price ten days immediately prior to the declaration of the state of emergency or state of preparedness may use the price at which it usually sells the item to calculate the price pursuant to subsection (a) or (b) of this section."); W. Va. Code § 8-25-5(c)(5)("State regional councils or commissions and their corresponding boundaries in existence on the effective date of this article, which were established under the former provisions of this article, and any nonprofit corporation in existence on the effective date of this article, which was established under chapter thirty-one of this code and pursuant to section eighteen, article "five, chapter seven of this code and which has had in its employ a full-time paid executive staff for a period ofno less than six months immediately prior to the effective date of this article, may be designated by the governor as planning and development regions and regional councils. ")j W. Va. Code § 19-12A-6 (CCThe commission shall appoint a farm management director who, in addition to qualifications established by the commission, shall have owned, operated or managed a farm for at least five years within ten years immediately prior to being appointed."); W. Va. Code § 3-1-3a(1)("Any citizen of the United States who is a resident ofthe state and who applies, not later than thirty days immediately prior to any presidential election for registration or qualification to vote for the choice of electors for president and vice-president, or for president and vice-president, in such election, and who is otherwise qualified to vote, may register to vote, and vote, for the choice of electors for president and vice-president, or for president and vice-president, in such election, as provided by the federal Voting Rights Act Amendments of 1970."); W. Va. Code § 33-4-15a(e)(IV)(a)("Have continuously transacted an insurance husiness outside the United States for at least three years immediately prior to making application for accreditation. "); W. Va. Code § 33-4-15a(d)(2)("In the case of a group of incorporated insurers under common administration which complies with the filing requirements contained in the previous paragraph; which has continuously transacted an insurance business outside the United States for at least three years immediately prior to making application for accreditation."); W. Va. Code § 50-1-4 ("Notwithstanding the foregoing provisions of this section, each person who held the office of justice of the peace on the fifth day

13 of November, one thousand nine hundred seventy-four, and who served in or performed the functions of such office for at least one year immediately prior thereto shall be deemed qualified to run for the office of magistrate in the county of his residence. "); W. Va. Code § 47-11B-4 ("List separately any goods to be offered for sale which were purchased and received during a ninety-day period immediately prior to the date of making application for the license. "); W. Va. Code § 16-3C-3(c)("Provided, however, 'that the Bureau has no notification obligations when the Bureau determines that there has been no likely exposure of these persons to HIV from the infected test subject within the ten-year period immediately prior to the diagnosis of the infection. "); W. Va. Code § SB-2E-3(4)('''Base tax revenue amount' means the average monthly amount of consumer sales and service tax collected by an approved company, based on the twelve-month period ending immediately prior to the opening of a new tourism development project for business or a tourism development expansion project, as certified by the State Tax Commissioner."); W. Va. Code § 11-3-1O(c)("A forfeiture as to all property aforesaid may be enforced for any default occurring in any year not exceeding five years immediately prior to the time the default is discovered. "); W. Va. Code § 7-11B-lS(d)(2) ("Notice of this public hearing shall be given in a newspaper of general circulation in the county, or in the municipality for a municipal plan, once each week for four successive weeks immediately prior to the hearing. "); W. Va. Code § 9-3-6(c)(2)("An applicant has been convicted of a drug-related offense within the three years immediately prior to an application for Temporary Assistance for Needy Families Program and whose conviction becomes known as a result of a drug screen as set forth in this section. "); W. Va. Code § 33-12C-5(d)(2)(D)("In the case of a group of incorporated insurers under common administration, which has continuously transacted an insurance business outside the United States for at least three years immediately prior to this time, and which submits to this state's authority to examine its books and records and bears the expense of the examination."); W. Va. Code § 11-13C-3(b)(1l)(D)("Such facility was not in service or use during the ninety days immediately prior to transfer of the title to such facility, or to the commencement of the term of the lease of such facility, unless upon application of the taxpayer, setting forth good and sufficient cause) the tax commissioner consents to waiving this ninety-day period. "); W. Va. Code § 11-13C-14(e)(3)(D)("Such facility was not in service or use during the ninety days immediately prior to transfer of the title to such facility, or prior to the commencement of the term of the lease of such facility."); W. Va. Code § 8-14-17(b)("Provided, That except for the chief or deputy chiefs of police, if the position of deputy chief of police has been previously created by the city council of that Class I or Class II city, no individual is eligible for promotion from the lower grade to the next higher grade until the individual has completed at least two years of continuous service in the next lower grade in the department immediately prior to the examination."); W. Va. Code § 11-13Q-3(b)(13)(D)("The facility was not in service or use during the ninety days immediately prior to transfer of the title to the facility, or prior to the commencement of the term of the lease of the facility. ")j W. Va. Code § 11-13D­ 3f(e)(8)(D)("Investment in the purchase, acquisition or transfer of any facility or component thereof that was in service or use during the ninety days immediately prior to transfer ofthe title to such facility or component thereof, or to the commencement of the term of the lease of such facility or component thereof, unless upon application of the taxpayer, setting forth good and sufficient cause, the tax commissioner consents to waiving this ninety day period. "); W. Va. ]4 Indeed, in Biafore, supra at 528, 782 S.E.2d at 229 (footnote omitted), where the issue was whether the phrase "immediately preceding" permitted the Governor to fill a vacancy in the Legislature ·with a person with the same political party affiliation as the resigning legislator who had changed political party affiliation after being elected, this

Court observed:

Dissatisfied with the text of the statute, the petitioners sought to identify and 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 satisfy the policy preferences of the petitioners. They "should not seek to amend the statute by appeal to the Judicial Branch." Barnhart 1.'. Sigmon Coal CO'.J Inc., 534 U.S. 438, 462, 122 S. Ct. 941, 151 L.Ed.2d 908 (2002). "Preserving the separation of powers is one of this Court's most weighty responsibilities." Wellness Int'l Network) Ltd. 1.'. Sharif, --- U.S. ----, 135 S.Ct. 1932, 1954­ 55, 191 L.Ed.2d 911 (2015) (Roberts, CJ., 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 1.'. City ofN. Y., 524 U.S. 417, 450, 118 S. Ct. 2091, 141 L.Ed.2d 393 (1998) (Kennedy,]., concurring).

Similarly, in the present case, dissatisfied with the text of W. Va. Const., art. VIII,

§ 7, the Petitioner asks this Court to "alter the text to satisfy" his "policy preferences" by adding the word "immediately" before the word "prior" and/or add the word

"active" before "practice oflaw." As this Court sagely observed in Biafore, this would violate the Separation of Powers provision of the West Virginia Constitution and the right

Code § I9-IA-3a(c)(3)(F)(9)("For planting locations in existence prior to July 1, 2005, provide proof of having purchased ginseng seed, rootlets or plants for planting for a minimum of one or more of the five years immediately prior to July I, 2005. ").

15 of qualified candidates, like Respondent Jenkins, to seek elective office. This Court, as in

Biafore, should reject the Petitioner's invitation to rewrite the West Virginia Constitution to satisfy his political aspirations and policy preferences.

Other courts have rejected the argument, in similar circumstances, that the word

"prior" means "immediately prior."

In Davis v. City of Plainfield, 389 N.J. Super. 424, 913 A.2d 166 (2006), for example, challengers claimed that a mayor who was elected was not eligible because she was not a resident of the city for four years immediately preceding her election. As in this case, the court noted that it is well-established that legislators distinguish the terms

"prior" and "immediately prior" and that because the municipal charter provision used the term "prior" and not "immediately prior," the challenged mayor was fully eligible to hold office:

These sections of the Charter and the Code provide support for the contention that the drafters of these documents made distinctions between "prior to" and "immediately prior to." These provisions of the Charter and the Code make it clear that the draftsmen of the Charter and the Code could have used the words "immediately prior" or "immediately preceding" in Section 3.2 if they chose and they did not do so....

Here the court is guided by language of the Charter as viewed through the prism of the policies stated above. In applying these policies, the court finds that the phrase (( at least four years prior to the election" should be read to require a total of four years cumulatively or consecutively at any point before the election, not four years « immediately preceding" the election ...

The court finds that while Ms. Robinson-Briggs has not lived in Plainfield for the four years immediately preceding her election as Mayor, she has spent more than four years in total as a qualified "legal voter" in Plainfield prior to her election to Mayor. Ms. Robinson-Briggs resided in Plainfield

16 for approximately five years from April 1993 to July 1998 at 947C East Front Street, Plainfield, New Jersey and returned to Plainfield in late March 2002 and has resided there continuously ever since, which total approximately three years and seven months. The total time that Ms. Robinson-Briggs resided in Plainfield is approximately eight years. Ms. Robinson-Briggs has met the requirement of Section 3.2 of the Charter because she was a legal voter in the city for at least four years prior to her election. Further, the policy concerns underlying the Charter Provision are not disturbed because the eight years that Ms. Robinson-Briggs has resided in Plainfield lead to the inference that she is knowledgeable about Plainfield. 29

Of course, the same analysis applies to this dispute. The framers of the West

Virginia Constitution could have provided that, "No person may hereafter be elected as a justice of the supreme court of appeals unless he has been admitted to practice law for at least ten years immediately prior to his election," like they did with similar constitutional provisions, and the Legislature has done with scores of statutes, but they did not do so.

Rather, understanding that legal experience is cumulative, they determined that being admitted to the practice of law in the State of West Virginia for at least ten years was sufficient when they provided, "No person may hereafter be elected as a justice of the supreme court of appeals unless he has been admitted to practice law for at least ten years prior to his election. ,,30

Here, not only has Respondent Jenkins been admitted to the practice of law in the

State of West Virginia for over three times the constitutional requirement, his membership status has been "active" for twenty-six of those thirty years. Like Mayor

29 Davis, supra at 440-441, 913 A.2d at 175-176.

30 W. Va. C;)nst., art. VIII, § 7.

17 Robinson-Briggs in the Davis case, Respondent Jenkins more than satisfies the public policy requiring admission to practice in the State ofWest Virginia for ten years.

Concerning the case of State ex rei. Haught v. Donnahoe, 174 W. Va. 27,321 S.E.2d

677 (1984), the candidate involved had been admitted to the practice oflaw in the State of

California, but was "not now admitted, nor has he ever sought admission to the practice of law in West Virginia or membership in the West Virginia State Bar.,,31 Here,

Respondent Jenkins was admitted to the practice of law in West Virginia more than thirty years ago and was on active status between 1988 and 2014. Indeed, of the thirty years in which Respondent Jenkins has been admitted to the practice of law, he has been on

"active" status for twenty-six of those years, having been on "inactive" status for the four years in which he was serving as a member of Congress.

Because the candidate in Haught had never been admitted to the practice of law in the State ofWest Virginia, unlike Respondent Jenkins, this Court correctly concluded:

We therefore hold that the phrase "admitted to practice law for at least five years," contained in West Virginia Constitution art. VIII, § 7 imposes licensing and experimental requirements for persons elected to the office of circuit judge which may only be satisfied by unqualified admission to the practice oflaw in this State for the requisite period. "Admitted to practice" means permitted to practice before the official body empowered to regulate the practice of law in this State for the minimum five-year period provided in article VIII, § 7. This requires uninterrupted permission to practice in the State for such period. See Constitution of the West Virginia State Bar, art. III; By-laws of the West Virginia State Bar, arts. I to III. See also Syi. pt. 3, Phelps v. Shanahan, 210 Kan. 605,502 P.2d 768 (1972).32

31 Haught, supra at 29-30, 321 S.E.2d at 680.

32 Id. at 33, 321 S.E.2d at 683-684 (footnotes omitted).

18 Here, of course, Respondent Jenkins was admitted to the practice of law in the

State of West Virginia on April 5, 1988, more than thirty years ago, and has been an uninterrupted member of the West Virginia State Bar over that entire period.

Accordingly, Haught has no application.

Other courts have rejected arguments similar to those advanced by the Petitioner in this matter.

In Cross v. Vandyke, 375 Mont. 535, 332 P.3d 215 (2014), voters challenged the eligibility of a candidate for the Montana Supreme Court. The candidate had been admitted to the Montana State Bar in 2005, but voluntarily chose inactive status in 2007 when he left Montana to practice law in another jurisdiction. In 2013, upon his request, he was restored to active status and, in 2014, filed as a candidate for election to the

Montana Supreme Court.

Mter that, voters challenged the candidate's eligibility under Mont. Const., art.

VII, § 9(1) which provides, "A citizen of the United States who has resided in the state two years immediately before taking office is eligible to the office of supreme court justice or district court judge if admitted to the practice of law in Montana for at least five years prior to the date of appointment or election," arguing that because the candidate "was prohibited from practicing law in Montana during the time that he chose to be on inactive status," he "cannot count that time toward the five-year eligibility requirement. ,,33

33 Cross, supra at 539,332 P.3d at 217.

19 First, the Montana Supreme Court noted that relative to constitutional eligibility to run for elected office, the following standards apply:

This Court applies the same rules in the construction of the Constitution that it applies in the construction of statutes. Martz'en v. Parter, 68 Mont. 450, 464, 219 P. 817, 819 (1923); Keller v. Smith, 170 Mont. 399, 404, 553 P.2d 1002, 1006 (1976).34 "[T]he intent ofthe framers ofthe Constitution is controlling and that intent must first be determined from the plain language of the words used." State ex rei. Racicot v. District Court, 243 Mont. 379, 384, 794 P.2d 1180, 1183 (1990).35 We have recognized that the qualifications of Supreme Court' Justice "are dictated solely by the Constitution" and "covered exclusively in Article VII, Section 9." Reichert v. State, 2012 MT 1.11,

Second, concerning the phrase "admitted to the practice of law," the Montana

Supreme Court observed:

In construing the phrase, "admitted to the practice of law in Montana," "we must implement [the framers'] intent by viewing the plain meaning of the words used and applying their usual and ordinary meaning." In re M.N., 2011 MT 245,

34 Likewise, in West Virginia, "Questions of constitutional construction are in the main governed by the same general rules as those applied in statutory construction." State ex rei. Brotherton v. Blankenship, 157 W. Va. 100, 108, 207 S.E.2d 421, 427 (1973).

35 See also Brotherton, supra at 108, 207 S.E.2d at 427 ("The fundamental principle in constitutional construction is that effect must be given to the intent of the framers of such organic law and of the people who ratified and adopted it.... If the language of a constitutional provision is plain and unambiguous it is not subject to judicial interpretation, the intent of the framers and the people being readily ascertainable therefrom. "); State ex rei. Frazier v. Meado1J)s, 193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994)("Courts are not free to read into the language what is not there, but rather should apply the statute as written. "); Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 312, 465 S.E.2d 399, 415 (1995)("Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. ")(internal citation omitted).

36 Cross, supra at 539, 332 P.3d at 217.

37 Similarly, in West Virginia, "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation. " SyI. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).

20 of the word "admit," as used in this context:, is "to allow to enter, let in, receive (a person or thing) ... into any office, position or relation[.]" The Compact Edition of the Oxford English Dictionary (Oxford University Press, 1971)....

The By-Laws of the State Bar of Montana (By-Laws) provide for eight classes of membership: active, judicial, inactive, active military service, senior, emeritus, resigned, and paralegal associate. By-Laws, art. I, § 3(a), in Montana Rules of Court vol. I, 473' (West 2014). With the exception of emeritus members-who provide only pro bono or volunteer services to low-income individuals-"only active and active military service members may practice law in the State of Montana.» By-Laws, art. I, § 3(b). No inactive member, judicial member, senior member, or-except as to qualified pro bono services--emeritus member "may practice law in this state or hold office or vote in any election conducted by the State Bar.» By­ Laws, art. I, § 3(f)....

VanDyke was admitted to the practice of law in Montana in 2005. "An attorney or counselor at law admitted by the supreme court of the state to practice within the state is required to pay a license tax of $25 a year.» Section 37-61-211(1), MCA. Pursuant to this statute, inactive Bar members are required to pay the annual license tax. VanDyke has paid his tax and received his certificate from the Clerk of this Court for each year since his admission. His admission was not conditional and has not been terminated, suspended, or subjected to any form of probation or other disciplinary action at any time. VanDyke did, by voluntary action, choose not to engage in the practice of law in Montana, selecting inactive membership for a period of approximately six years. But he did not resign or surrender his license and his admission to the Bar was not withdrawn. In short, he has never been "un-admitted. »38

Likewise, in the instant case, Respondent Jenkins, admitted to the practice of law in the State of West Virginia on April 5, 1988, has never been "un-admitted" and is eligible, under the similar provisions of the West Virginia Constitution, to be appointed and elected as Justice ofthe Supreme Court of Appeals.

38 Id. at 217-219, 332 P.3d at 539-541.

21 Finally, exp1icitly rejecting the argument that "admitted to the practice of 1aw" means admitted to the "active" practice oflaw, the Montana Supreme Court stated:

Cross insists that she is not advocating for an "active practice" requirement, but for a construction that "admitted to the practice)) means an unrestricted ability to engage in the practice of law. As discussed above, however, although VanDyke could not engage in the practice oflaw while on inactive status, his admission to the practice was not affected. The By­ Laws expressly distinguish between voluntary inactive status and voluntary resignation of membership, which requires a lawyer to "surrender" his or her license to practice law. 39

Similarly, R. Lawyer Disc. P. 3.26(a) provides, "Any member of the state bar may file in the Supreme Court of Appeals a verified petition stating that such member desires to voluntarily resign as a member of the state bar and to have his or her name stricken from the rolls thereof." Here, of course, Respondent Jenkins never voluntarily resigned his membership but has been a continuous member of the West Virginia State Bar for more than thirty years.

Under the plain language of W. Va. Const., art. VIII, § 7, and the decisions of other courts,40 including the Montana Supreme Court in Cross and the Superior Court of

39 Id. at 220, 332 P.3d at 543.

40 See, e.g., Ademiluyi v. Maryland State Board of Elections, 458 Md. 1, 181 A.3d 716 (20l8)(constitutional provision requiring that a judicial candidate be "admitted to practice Law in this State" requires only that a judicial candidate be a member of the Bar of Maryland); Chandler v. Martin ex rei. State, 2014 Ark. 219, 433 S.W.3d 884 (2014)(suspension of judicial candidate's license to practice law due to failure to timely pay annual license fee did not render candidate ineligible to be a candidate for judicial race; candidate was a licensed attorney of the state for at least six years immediately preceding the date he would have assumed office because he remained a licensed attorney during the period of his suspension and his license was not terminated); Kelly v. Martin ex rei. State, 2014 Ark. 217, 433 S.W.3d 896 (2014)(same); In re Palomo, 366 S.W.3d 193 (Tex. 2012)(records did not conclusively establish that opponent of judicial candidate did not practice law during period that opponent claimed exemption from the 22 New Jersey in Davis, Respondent Jenkins is qualified and eligible for appointment and election to the office ofJustice of the Supreme Court of Appeals where he was admitted to the practice oflaw in the State ofWest Virginia more than thirty years ago.

C. WHERE JUDICIAL SELECTION IN WEST VmGINIA IS ON A NON-PARTISAN BASIS; WHERE TIDS COURT HEw IN BIAFORE THAT THE GOVERNOR Is NOT REQUIRED TO Fn.L VACANCIES WITH PERsONS WITH THE SAME POLITICAL PARTY AFFILIATION AS THE DEPARTING INCUMBENT AT THE TIME OF THEm ELECTION; AND WHERE THERE IS No CONSTITUTIONAL, STATUTORY, REGULATORY, OR COMMON LAW REQUIREMENT, LIKE THERE IS FOR CERTAIN STATE OFFICIALS, SUCH AS FOR THE SENATE AND HOUSE OF DELEGATES, RESPONDENT JENKJNS WAS ELIGmLE FOR NONPARTISAN APPOINTMENT TO A VACANCY IN THE OFFICE OF JUSTICE OF THE SUPREME COURT OF APPEALS.

Petitioner's second argument is that Respondent Jenkins , appointment violates W.

Va. Const. (( art. II, § 2 and art. VII, § 7. "

First, W. Va. Const., art. II, § 2, merely states, "The powers ofgovernment reside in all the citizens of the State, and can be rightfully exercised only in accordance with their will and appointment" and our citizens elect to the Legislature their representatives, who can choose to enact statutes like W. Va. Code § 3-10-5(a), which provides, "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

State Bar's MCLE requirements); In re Simmons, 65 Wash.2d 88,395 P.2d 1013 (1964)(admission to practice law before courts of record ofthe State of Washington is prerequisite to holding office of judge ofMunicipal Court ofCity of Seattle, and a judge thereof, although prohibited by statute from practicing during tenure, remains a member of the bar). 23 immediately preceding the vacancy was affiliated" or can choose not to do so for vacancies in the office ofJustice ofthe Supreme Court ofAppeals.

Second, W. Va. Const., art. VII, § 7, the only other constitutional provision referenced in the heading to Section C of the Petition41 provides, "The governor may, on extraordinary occasions, at this own instance; but when so convened it shall enter upon no business except that stated in the proclamation by which it was called together," having nothing to do with this case. Sprinkled throughout the Petition are other references to the West Virginia Constitution,42 but it is impossible to determine upon which the Petitioner ostensibly relies on declaring unconstitutional the appointment of

RespondentJenkins, on a nonpartisan basis, to a nonpartisan office. 43

41 App. at 24.

42 To the extent the Petitioner meant W. Va. Const., art. III, § 7, which is referenced in the Petition's "Table of Authorities" it provides, "No law abridging the freedom of speech, or of the press, shall be passed; but the Legislature may, by suitable penalties, restrain the publication or sale of obscene books, papers, or pictures, and provide for the punishment of libel, and defamation of character, and for the recovery, in civil actions, by the aggrieved party, of suitable damages for such libel, or defamation," and nothing in this case implicates anyone's freedom of speech or the press. To the extent the Petitioner meant W. Va. Const., art. VIII, § 7, which is also referenced in the Petition's "Table of Authorities" it provides, "Iffrom any cause a vacancy shall occur in the office of a justice of the supreme court of appeals or a judge of a circuit court, the governor shall issue a directive of election to fill such vacancy in the manner prescribed by law for electing a justice or judge ofthe 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 flll such vacancy by appointment until a justice or judge shall be elected and qualified. Ifthe unexpired term be less than two years, or such additional period, not exceeding a total of three years, as may be prescribed by law, the governor shall fill such vacancy by appointment for the unexpired term," and places no limitation on the Governor relative to political party affiliation.

43 Other than W. Va. Const. art. II, § 2, art. II, § 4, art. III, § 7, and art. VIII, § 7, which are addressed els~where in this response, the only other state constitutional provisions referenced in the Petition's "Table of Authorities" are W. Va. Const., art. III, § 16, which provides, "The right ofthe people to assemble in a peaceable manner, to consult for the common 24 In the « Questions Presented" Section of the Petition, W. Va. Const., art. II, § 4 is referenced, but that constitutional provision states, "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," referencing constitutional conventions44 and political districting,45 having nothing to do

good, to instruct their representatives, or to apply for redress of grievances, shall be held inviolate," and this dispute has nothing to do with the right of the public to assemble to apply to their representatives to redress of grievances, and W. Va. Const. art. VI, § 15, which provides, "No senator or delegate, during the term for which he shall have been elected, shall be elected or appointed to any civil office of profit under this state, which has been created, or the emoluments of which have been increased during such term, except offices to be filled by election by the people. Nor shall any member of the Legislature be interested, directly or indirectly, in any contract with the state, or any county thereof, authorized by any law passed during the term for which he shall have been elected," which is not addressed to Respondent Jenkins. Accordingly, the Petitioner cites absolutely no constitutional provision requiring the filling of any vacancy in state government with a person of the same political party as the departed incumbent.

44 See Syl. pt. 1, State ex reI. Smith v. Gore, 150 W. Va. 711, 43 S.E.2d 791 (1965)("The provisions of Article II, Section 4 of the Constitution of West Virginia, requiring equality of numbers of those entitled thereto in all apportionments of representation, pertain to and include a constitutional convention. "); Syl. pt. 2, Smith, supra ("An act of the legislature which purports to apportion delegates to a constitutional convention without providing for equality of numbers of those entitled to representation is violative of Article IT, Section 4 of the Constitution of West Virginia and is therefore unconstitutional. "

45 See Holloway v. Hechler, 817 F. Supp. 617, 629 (S.D. W. Va. 1992)("Finally, plaintiffs allege that H.B. 4043 violates article IV, § 4 of the Constitution of the United States, in that it creates and results in a defective electoral structure for legislative districts in the State by violating, in its operation, plaintiffs' rights under the first and fourteenth amendments thereof. Plaintiffs' claim in this fifth cause must also be dismissed. ")(footnote omitted); Goines v. Heiskell, 362 F. Supp. 313, 322 (S.D. W. Va. 1973)("Upon consideration of the record in this action, together with the memoranda and arguments of counsel, the Court finds and concludes that the West Virginia House of Delegates apportionment statute, West Virginia Code, § 1-2-2, as amended by Committee Substitute for House Bill No. 811, passed by the Legislature on April 14, 1973, and approved by the Governor of West Virginia on April 27, 1973, is constitutionaL"); SyI. pt. 12, State ex reI. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012)("The only role of the Supreme Court of Appeals of West Virginia in determining whether a state legislative redistricting plan is constitutional is to assess the validity of the particular plan adopted by the 25 with political party affiliation. The principle of "one man/one vote" embedded in W. Va.

Const., art. IV, § 4, does not mean that one a majority or plurality ofvoters elect someone with one political party affiliation, that that person elected cannot change that party affiliation during his or her term of office, or that once there is a vacancy in elective office, that vacancy can only be filled by a person of the same political party affiliation as the incumbent when he or she was elected.

Third, the argument that the only way our State's citizens can have "equal representation in the government" under W. Va. Const., art. II, § 4, is for the election or appointment of all elected officials to be on a partisan basis, which would invalidate any statute that permits any appointment or election to any elective office on a non-partisan basis, including in West Virginia, magistrates,46 family court judges,47 circuit judges,48 supreme court justices,49 soil conservation supervisors,50 county board of education members/1

Our citizens' right to "equal representation in government" under W. Va. Const. art. II, § 4, has nothing to do with the right of equal representation of political parties.

Legislature under both federal and state constitutional principles, rather than to ascertain whether a better plan could have been designed and adopted. "). 46W. Va. Code § 3-5-6d. 47 W. Va. Code § 3-5-6c.

48 W. Va. Code § 3-5-6b.

49 W. Va. Code § 3-5-6a.

50 W. Va. Code § 19-21A-6(a).

51 W. Va. Code § 3-5-6.

26 Otherwise, for example, the number of members of the Legislature would have to be proportionate to the number of citizens whose political party affiliation is Republican,

Democrat, or otherwise, and would disenfranchise all citizens who elect to participate in our elections even though they are not members of any political party. That is why, in

Bia/ore, supra at 537, 782 S.E.2d at 232, this Court held:

Examining the West Virginia statute [permitting the Governor to fill a legislative vacancy with someone with a different political party affiliation than the previous officeholder's political party affiliation at the time of his or her election] 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 Rodriguez decision emphasized the considerable latitude enjoyed by each state with respect to procedures for filling vacancies in state government. 457 U.S. at 12, 102 S.Ct. 2194. 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 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 ofvoters, based upon an unforeseeable event such as the changing of political parties and a subsequent vacancy, does not constitute a violation of equal protection.52

52 Similarly, in State ex reI. Robb 'V. Caperton, 191 W. Va. 492, 446 S.E.2d 714 (1994), this Court rejected a petition seeking to compel the Governor to issue a directive of election to fill a vacancy in a circuit court judgeship, holding in Syllabus Point 5 that, "Where there is a vacancy in the office of a supreme court justice or a circuit judge and the unexpired term is for more than two years under W. Va. Code, 3-10-3 (1990), the governor may fill the vacancy by appointment. The appointment shall continue until a successor timely files a certificate of candidacy, is nominated at the primary election next following such timely filing, and is thereafter elected and qualified at the next general election. "

27 The Petitioner deals with this inconvenient holding directly contrary to his constitutional argument by essentially ignoring it, instead embracing the position taken in a dissenting opinion expressly rejected by this Court. S3

Finally, Petitioner avoids the fact that the same West Virginia Constitution upon which he relies to argue, contrary to Biafore, that it is unconstitutional to appoint someone of a different political party than that of the incumbent at the time of his or her election, expressly states, "The Legislature may prescribe by law whether the election of such justices is to be on a partisan or nonpartisan basis. "S4 How can the selection of

Justices ofthe Supreme Court ofAppeals on a nonpartisan basis be unconstitutional when the West Virginia Constitution itself expressly provides that the voters can do it on a nonpartisan basis?

The Petitioner acknowledges that had Respondent Jenkins' predecessor not resigned, she would have run on a nonpartisan ballot. So how the selection of her

53 App. at 24-25.

S4 W. Va. Const., art. VIII, § 2; see also W. Va. Code § 51-1-1 ("Effective with the primary election of 2016, all elections for justices will be on a nonpartisan basis by division. Beginning in 2016, there will no longer be primary elections held for the office of justice and all elections for justice are to be held in the nonpartisan judicial election as set forth in article five, chapter three of this code. All indications of party identification on election ballots for that office shall be omitted. "); W. Va. Const., art. VIII, § 5 ("The judge or judges of each circuit court shall be elected by the voters of the circuit for a term of eight years, unless sooner removed or retired as authorized in this article. The Legislature may prescribe by law whether the election of such judges is to be on a partisan or nonpartisan basis."); W. Va. Const., art. VIII, § 10 ("The Legislature shall determine the qualifications and the number of magistrates for each such court to be elected by the voters of the county, and the Legislature may prescribe by law whether the election ofsuch magistrates is to be on a partisan or nonpartisan basis. ").

28 successor on a nonpartisan basis violates Article II, Sections 2 and 4 of the West Virginia

Constitution is incomprehensible. This may explain why the Petitioner references not a single case in which any court in the country has ever held that in the absence of a provision like W. Va. Code § 3-10-5(a) the appointing authority is obligated to fill a vacancy in an elective officer with someone ofthe same political party affiliation.

In West Virginia, our Legislature could have required the Governor to fill any vacancy in the office ofJustice of the Supreme Court of Appeals with a person of the same political party affiliation as the incumbent at the time of his or her election. It has not done as it has done relative to members of the Senate and House of Delegates. More importantly, as this Court held in Biafore, there is nothing in the United States

Constitution or the West Virginia Constitution which compels the Governor to do so.

VI. CONCLUSION

For the above reasons, this Court should summarily deny the Petition.

EVANJENKINS

By Counsel

Steptoe & Johnson PLLC P.O. Box 2195 Huntington, WV 25722-2195 T.304.526.8133 [email protected]

29 VERIFICATION

STATE OF WEST VIRGINIA, COUNTY OF CABELL, TO-WIT:

I, Evan Jenkins, being first duly sworn, state that I have read the foregoing "VERIFIED

RESPONSE TO COMBINED WRIT OF MANDAMUS AND WRIT OF PROHIBITION" and that the factual representations contained therein are true, except so be on information and belief, and that insofar as they are so stated, I

Taken, subscribed, and sworn to by me on September 14, 018.

My commission expires:

45~~ OFFICIAL SEAL NOTARY f'UBI.IC. STAlE OF~STVIRGlNlA ~ LlSAA. RULEY Sleptoe &Johnson. PllC ; 825 Third Avenue. Suile 4DO ~ HunUnglon. WI 25701 - My Commission Expires February 7. 2021 Notary Public / CERTIFICATE OF SERVICE

I hereby certify that on September 17, 2018, I caused the foregoing "VERIFIED

RESPONSE TO COMBINED WRIT OF MANDAMUS AND WRIT OF

PROHIBITION" to be placed in the United States mail, postage prepaid, addressed as follows:

Teresa C. Toriseva Honorable Mac Warner Joshua D. Miller Secretary of State Toriseva Law Building I, Suite 157-K 1446 National Road 900 Kanawha Boulevard Wheeling, WV 26003 Charleston, WV 25305 (304) 238-0066 Respondent Counselfor Peti#oner HonorableJimJustice S. Paige Flanigan Governor Flanigan Law Office State Capitol 1407 East Main Street 1900 Kanawha Blvd. E Princeton, WV 24740 Charleston, WV 25305 Counselfor Pe#tioner . Respondent

Honorable Tim Armstead Attorney General State Capitol State Capitol Complex 1900 Kanawha Blvd. E Bldg. I, Room E-26 Charleston, WV 25305 Charleston, WV 25305 Respondent