No. 14-0877 – State of West Virginia ex rel. Natalie E. Tennant, West Virginia Secretary
of State v. Ballot Commissioners of Mingo County, West Virginia; Jim Hatfield, as Clerk
of the Mingo County Commission and Member of the Ballot Commissioners of Mingo
County, West Virginia; Angie Browning, as Member of the Ballot Commissioners of
Mingo County, West Virginia; and Ramona Browning, as Member of the Ballot
Commissioners of Mingo County, West Virginia.
                                                                              FILED
                                                                       September 17, 2014
                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA

Benjamin, Justice, concurring:


               I agree with the well-reasoned opinion in this matter. I write separately to

discuss a distinct but related issue: whether a county executive committee is able to fill a

ballot vacancy for a judicial position. Because judicial positions may, and generally do,

cover multi-county circuits, I submit that a county executive committee does not have the

legal ability to fill a ballot vacancy for a judicial election under the current West Virginia

Code.



               At present there are twenty-seven family court circuits and thirty-one

circuit court circuits throughout the State.       Most such circuits are multiple-county

circuits.   Judgeships are not county positions; they are circuit positions.            This is

significant when reading W. Va. Code § 3-5-19 (2007), which states that in cases of

ballot vacancies after a primary election, the position may be filled by the “executive

committee of the political party for the political division in which the vacancy occurs.”

(Emphasis supplied). Here, the county executive committee sought to fill a circuit, not a




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county, position.   In doing so, it sought to do something to which it has no legal

authority.



              This Court addressed a similar issue in State ex rel. Butcher v. Manchin,

171 W. Va. 24, 297 S.E.2d 430 (1982), wherein this Court considered the proposed

filling of a ballot vacancy in the then Twenty-Sixth Delegate District, a multi-county

district, for the West Virginia House of Delegates.        At that time the Twenty-Sixth

Delegate District was comprised of Nicholas and Webster Counties. No Republican

candidate had filed for election, and the petitioner in Butcher contacted the Republican

executive committees for both counties seeking to be nominated. The chairmen of both

committees agreed to this nomination, and forwarded Mr. Butcher’s name to the secretary

of state.1 Ultimately, relying upon an Attorney General opinion, the secretary of state

denied Mr. Butcher’s nomination because it did not come from the Republican “Delegate

District Committee.” Upon review, this Court denied Mr. Butcher’s petition seeking

mandamus, confirming that the authority of county executive committees is limited to

county positions. See also State ex rel. Baker v. Bailey, 152 W. Va. 400, 163 S.E.2d 873

(1968).



              The nominating body herein was without proper legal authority to do what

it attempted to do. For this reason I concur in the opinion of this Court.

       1
          Though the political parties of this state may feel this process is burdensome,
West Virginia election law is specific on this point. Perhaps it is time to make the
statutory process simpler.
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