Anthony J. Veltri v. Diane Parker and John Michael Withers

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term
FILED
October 17, 2013
No. 12-0619 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA

ANTHONY J. VELTRI,
Respondent Below, Petitioner

V.

DIANE PARKER, IN HER CAPACITY AS
CHAIR OF THE DEMOCRATIC EXECUTIVE
COMMITTEE OF TAYLOR COUNTY, WEST VIRGINIA,
AND JOHN MICHAEL WITHERS,
Petitioners Below, Respondents

Appeal from the Circuit Court of Taylor County
Honorable Larry V. Starcher, Special Judge
Civil Action No. 11-C-21

REVERSED AND REMANDED

Submitted: September 25, 2013
Filed: October 17, 2013

James M. Wilson Vincent Trivelli
Charles F. Johns The Law Office of Vincent
Devin C. Daines Trivelli, PLLC
Steptoe & Johnson PLLC Morgantown, West Virginia
Bridgeport, West Virginia Attorney for the Respondents
Attorneys for the Petitioner

The Opinion of the Court was delivered PER CURIAM.
 SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.”

Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

2. “The standard of appellate review of a circuit court’s order granting

relief through the extraordinary writ of mandamus is de novo.” Syllabus point 1, Staten v.

Dean, 195 W. Va. 57, 464 S.E.2d 576 (1995).

3. “‘“The standard of review applicable to an appeal from a motion to alter

or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that

would apply to the underlying judgment upon which the motion is based and from which the

appeal to this Court is filed.” Syllabus point 1, Wickland v. American Travellers Life

Insurance Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).’ Syllabus point 2, Bowers v.

Wurzburg, 205 W. Va. 450, 519 S.E.2d 148 (1999).” Syllabus point 1, Alden v. Harpers

Ferry Police Civil Service Commission, 209 W. Va. 83, 543 S.E.2d 364 (2001).

4. “A writ of mandamus will not issue unless three elements coexist – (1)

a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of

respondent to do the thing which the petitioner seeks to compel; and (3) the absence of

another adequate remedy.” Syllabus point 2, State ex rel. Kucera v. City of Wheeling, 153

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W. Va. 538, 170 S.E.2d 367 (1969).

5. “The right to Mandamus, though a remedy broad in scope and expanded

and enlarged in jurisdiction, must exist when the proceeding is instituted.” Syllabus point

9, State ex rel. Booth v. Board of Ballot Commissioners of Mingo County, 156 W. Va. 657,

196 S.E.2d 299 (1973).

6. “In that Mandamus was never intended to determine a right, but only

to enforce a right, evidence cannot be taken and proof cannot be made in this Court or in a

circuit court which would permit, in the first instance, the trial of an election contest by the

use of the writ of Mandamus.” Syllabus point 3, State ex rel. Booth v. Board of Ballot

Commissioners of Mingo County, 156 W. Va. 657, 196 S.E.2d 299 (1973).

7. “A certificate of election is conclusive to the result of the election until

set aside or vacated in some manner authorized by law on direct attack and is not subject to

collateral attack by Mandamus.” Syllabus point 11, State ex rel. Booth v. Board of Ballot

Commissioners of Mingo County, 156 W. Va. 657, 196 S.E.2d 299 (1973).

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Per Curiam:

The petitioner herein and respondent below, Anthony J. Veltri (“Commissioner

Veltri”), appeals from the Circuit Court of Taylor County’s March 16, 2012, summary

judgment order, in which the court also granted a writ of mandamus. The effect of the

mandamus was to remove Commissioner Veltri from his post as Taylor County

Commissioner1 and to replace him with the respondent herein and petitioner below, John

Michael Withers (“Mr. Withers”). On appeal to this Court, Commissioner Veltri assigns

several errors, with the focus of the alleged improprieties being that the circuit court erred

in its finding that Commissioner Veltri “was not Constitutionally qualified to run for the

office of Taylor County Commissioner from the Tygart Magisterial District in either the 2010

primary or general elections.” After a careful review of the parties’ briefs, the appendix

record, the pertinent legal authority, and listening to the parties’ oral arguments, we reverse

the circuit court’s order and remand this case for further proceedings consistent with this

opinion.

I.

FACTUAL AND PROCEDURAL HISTORY

This legal dispute presents a post-election mandamus action filed by Mr.

Withers and his political party leader, Diane Parker. The action seeks the removal of

1
On July 13, 2012, the circuit court’s order granting the writ of mandamus was
stayed.

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Commissioner Veltri, having already been elected and sworn into office. Mr. Withers claims

that Commissioner Veltri lives in the Western Magisterial District and is, therefore,

constitutionally and statutorily ineligible to hold office for a position from the Tygart

Magisterial District. Moreover, Mr. Withers urges that he is entitled to fill the vacancy

created with the removal of Commissioner Veltri. The main question in this case, i.e.,

Commissioner Veltri’s residency, is impacted by redistricting actions in the 1980s.

Since 1944, Commissioner Veltri has resided in the same house located in

Grafton, West Virginia. As early as the late 1960s, Commissioner Veltri ran for various

public offices, including his first campaign for County Commissioner in 1992. Prior to each

election, Commissioner Veltri would file candidacy papers in which his district was verified

by county officials. Each time that Commissioner Veltri ran for elected office, he was

designated as a representative of Precinct 6 of Tygart District.

The relevant portion of Precinct 6 of Tygart District was subject to four

redistricting actions from December 1983 to December 1984.2 The first, adopted by the

Commission in December 1983, moved a portion of Precinct 6 of Tygart District to Precinct

7 of Western District, which included Commissioner Veltri’s physical location. Next, in

April 1984, the commission reversed the 1983 action, finding that it “created an illegal

2
Commissioner Veltri was not a member of the County Commission during the
redistricting events and did not serve as a commissioner until the 1992 election.

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precinct.” The impact of the April 1984 adoption was that Commissioner Veltri’s residence

was returned to Precinct 6 of Tygart District. Little more than a week later, still in April

1984, the commission decided that the earlier action in April “had created a serious

problem.” The commission withdrew the early April action. Thus, this third action

effectively reinstated the first action from 1983, which relocated Commissioner Veltri’s

residence as being part of Precinct 7 of Western District. Finally, in December 1984, the

commission unanimously voted to “transfer voters moved from Precinct 6 to Precinct 7 back

to their original Precinct [so that] Precinct 6 will remain in Tygart District.” Therefore,

Commissioner Veltri’s home location was restored as being a part of the Tygart District. In

summary, Commissioner Veltri has lived at the same physical address since 1944. The

location of his home consistently has been within Precinct 6 of Tygart District except for a

short period of time in late 1983 and 1984 when redistricting plans placed the home within

the Western District.

Pertinent to the currently-pending action before this Court is the 2010 election

for Taylor County Commissioner. Mr. Withers was the Democratic candidate for the

commission from the Tygart District. The incumbent, Commissioner Veltri, the Republican

candidate from the Tygart District, had been serving as County Commissioner since 1992.

Commissioner Veltri won the 2010 election, and was sworn into office on December 28,

2010. Subsequent thereto, on March 16, 2011, Mr. Withers filed a petition for writ of

mandamus in the Circuit Court of Taylor County. In the petition for writ of mandamus, Mr.

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Withers asserted that Commissioner Veltri did not live in the Tygart Magisterial District and,

accordingly, was not eligible for election therefrom.

Discovery ensued, and Commissioner Veltri testified that, prior to his decision

to campaign for county commission for the 2010 election, he consulted voter registration

records. This search led to his determination that both he and Mr. Withers lived in Precinct

6, the Tygart District. Commissioner Veltri submitted an affidavit explaining that he had run

for public office “several times” since the 1960s, and that on each occasion of his running

for office, the Taylor County Clerk verified that he was a resident of Precinct 6.

The circuit court entered a March 16, 2012, order granting summary judgment

to Mr. Withers, within which the lower court issued a writ of mandamus, removing

Commissioner Veltri from his post and seating Mr. Withers in his stead as County

Commissioner. The lower court stated as follows:

16. No evidence was provided to the court to
demonstrate that the procedures used by the Taylor County
Commission in the series of Magistrate District redistricting and
voting precinct changes actions between February 1984 and
December 1984 complied with the statutory mandates relating
to publishing and providing for open public hearings for
proposed changes in the magisterial districts.[3]

3
The circuit court’s order also notes that the current Clerk of Taylor County
admitted that “to the extent that said matters are
consistent with the records maintained in the
(continued...)

4
 17. Based on the records of the Taylor County
Commission the residence of respondent Anthony J. (Tony)
Veltri was at the in the (sic) year of 2010, and is currently
located in the Western Magisterial District of Taylor County.

(Footnote added).

In reaching its conclusions, the circuit court determined that Commissioner

Veltri was not qualified to run as a candidate of the Tygart District because he resided in the

Western District. Thus, the lower court found that Mr. Withers, as a proper resident of

Tygart District and as the second place vote recipient in the election, was the proper person

to be certified as county commissioner. In conclusion, the circuit court’s March 16, 2012,

order stated:

3. The actions of the Taylor County Commission taken
in 1983 to change the boundaries of the Taylor County
magisterial districts were taken in compliance with the law of
the State of West Virginia. That is, the changes were legally
advertised providing notice to the public, a public hearing was

3
(...continued)
Office of the Clerk of the County Commission of
Taylor County” the December 1983 changes
moved the Veltri’s (sic) residence into the
Western District, that General Elections were held
in June and November of 1984 in accordance with
the boundaries set by the December 1983 action,
and that the voters of Taylor County were not
given notice of the December 1984 actions of the
Taylor County Commission.
In essence, the lower court used this evidence to find that the 1983 action, moving
Commissioner Veltri to the Western District, was valid. Furthermore, it found that the
subsequent actions in 1984 were not properly handled and, therefore, were void.

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 held, and the Taylor County Commission adopted the changes
unanimously in open meetings.

4. The Taylor County Commission actions of 1984 that
attempted to reverse the 1983 actions action [sic] were not in
compliance with the statutory law, and, therefore, had non [sic]
legal effect. The Commission minutes of April 17, 1984
indicate that a vote taken on the changes was to be posted on the
Court House door. However, on April 25, 1984—well before
the passage of the required thirty days—the Taylor County
Commission unanimously voted to withdraw the action of April
17, 1984, thereby leaving the December 1983 changes in place.

5. The minutes of the Taylor County Commission
regarding the second attempt by the Commission in December
17, 1984 to “reverse” the December 1983 changes as they
concern the area containing the residence of Anthony J. Veltri
reflect that the Commission merely voted on a motion. The
minutes indicate no effort to notify the public of the actions, no
legal advertisement of any kind, no placement of information
about the action on the Court House door; and neither
respondent produced any evidence—documents, minutes, or
otherwise—that demonstrate that the statutory required notice,
advertisements and postings were in fact taken.

6. No evidence was provided to the court to demonstrate
that the procedures used by the Taylor County Commission in
a series of magistrate district redistricting and voting precinct
changes actions that were attempted to be made between
February 1984 and December 1984 complied with the statutory
mandates relating to publishing and providing for open public
hearings for proposed changes in the magisterial districts and
voting precincts.

Thereafter, on March 28, 2012, Commissioner Veltri filed a motion to alter or

amend judgment and provided updated evidence, which he urged the lower court to find

supported his assertion that his residence has been, and continues to be, located in Precinct

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6 of Tygart District. The new evidence explained that the Taylor County Commission

approved a plan on December 6, 2011, and that, as a result of the approval, it is clear that

Commissioner Veltri’s residence is in the Tygart District. The circuit court denied that

motion by order entered April 16, 2012.4 This appeal followed.

II.

STANDARD OF REVIEW

As previously explained, the orders appealed to this Court are a March 16,

2012, order, which granted summary judgment to Mr. Withers and issued a writ of

mandamus therein, and an April 16, 2012, denial by the lower court of Commissioner

Veltri’s motion to alter or amend judgment pursuant to West Virginia Rule of Civil

Procedure 59(e).

In this regard, it has long been held that “[a] circuit court’s entry of summary

judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755

(1994). Likewise, “[t]he standard of appellate review of a circuit court’s order granting relief

4
Subsequent to the order granting summary judgment, but prior to the order
denying the motion to alter or amend the judgment, on March 20, 2012, the lower court
granted Commissioner Veltri’s motion for a stay of the proceedings to allow him time to
appeal. The lower court granted the stay and found that Commissioner Veltri could transact
business as the County Commissioner during the pendency of the stay, so long as he did not
participate in any matters relating to redistricting of magisterial boundaries. On July 13,
2012, this Court issued its own stay of the circuit court’s issuance of the writ of mandamus.

7
through the extraordinary writ of mandamus is de novo.” Syl. pt. 1, Staten v. Dean, 195

W. Va. 57, 464 S.E.2d 576 (1995). Additionally,

“‘[t]he standard of review applicable to an appeal from
a motion to alter or amend a judgment, made pursuant to W. Va.
R. Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.’ Syllabus point 1,
Wickland v. American Travellers Life Insurance Co., 204
W. Va. 430, 513 S.E.2d 657 (1998).” Syllabus point 2, Bowers
v. Wurzburg, 205 W. Va. 450, 519 S.E.2d 148 (1999).

Syl. pt. 1, Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83, 543 S.E.2d 364

(2001). Thus, we will apply a de novo standard of review. Mindful of this applicable

standard, we now examine the individual issues presented in this appeal.

III.

DISCUSSION

On appeal to this Court, Commissioner Veltri sets forth several assignments

of alleged error committed by the circuit court: (1) inappropriate issuance of mandamus to

challenge a post-election procedure to determine a sworn official’s qualifications; (2)

improper reliance on Burkhart v. Sine, 200 W. Va. 328, 489 S.E.2d 485 (1997); (3) erroneous

burden shifting to Commissioner Veltri to show that redistricting actions were procedurally

proper, which contravenes the presumption that public officials’ actions are valid unless

proven otherwise by clear and convincing evidence by the challenging party; (4) unlawful

conclusion that laches did not apply due to the circuit court’s determination that Mr. Withers

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“vigorously pursued [his] rights . . . as expeditiously as [he] could[;]” (5) failure to award

attorney’s fees and costs to Commissioner Veltri; and (6) refusal to consider newly-offered

redistricting evidence regarding Commissioner Veltri’s residency. We need not address each

alleged error because we determine that the lower court’s issuance of a writ of mandamus

was improper.

In support of his position, Commissioner Veltri argues that Mr. Withers had

no clear right to relief at the time the action was filed. Further, Commissioner Veltri asserts

that West Virginia law expressly prohibits the post-election use of mandamus to challenge

electoral qualifications. In response, Mr. Withers disagrees and contends that mandamus is

not prohibited in post-election situations. The current case, as asserted by Mr. Withers, is

a means of compelling the county commissioner to adhere to the laws regarding residency

requirements.

It is well-settled that

[a] writ of mandamus will not issue unless three elements
coexist – (1) a clear legal right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of
another adequate remedy.

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

Importantly, “[p]etitioners in mandamus must have a clear legal right to the relief sought

therein and such right cannot be established in the proceeding itself.” Syl. pt. 1, Kucera, id.

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Moreover, “[t]he right to Mandamus, though a remedy broad in scope and expanded and

enlarged in jurisdiction, must exist when the proceeding is instituted.” Syl. pt. 9, State ex rel.

Booth v. Board of Ballot Comm’rs of Mingo Cnty., 156 W. Va. 657, 196 S.E.2d 299 (1973).

Booth further explained

[i]n that Mandamus was never intended to determine a
right, but only to enforce a right, evidence cannot be taken and
proof cannot be made in this Court or in a circuit court which
would permit, in the first instance, the trial of an election contest
by the use of the writ of Mandamus.

Syl. pt. 3, id.

Here, Mr. Withers sought to develop facts to disqualify Commissioner Veltri

through discovery after he had filed his petition for a writ of mandamus. Evidence was

taken, including depositions, document discovery, and two rounds of summary judgment

briefing. Mr. Withers used this evidence to create his case, which shows that the right clearly

did not exist at the time the action was filed. Rather, Mr. Withers sought to use the

mandamus proceeding, itself, to establish his case. Thus, Mr. Withers was unable to show

a clear legal right to the relief sought at the time his proceeding was instituted.

Furthermore, this Court has expressly disapproved of the use of mandamus

proceedings in circumstances such as those presented by the case sub judice. In Syllabus

point 11 of Booth, we specifically determined that “[a] certificate of election is conclusive

to the result of the election until set aside or vacated in some manner authorized by law on

10
direct attack and is not subject to collateral attack by Mandamus.” 156 W. Va. 657, 196

S.E.2d 299. See also State ex rel. Porter v. Bivens, 151 W. Va. 665, 155 S.E.2d 827 (1967)

(“Though he may challenge the eligibility and the qualification of the petitioner to hold the

office in question in the pending election contest or other proper proceeding to try the title

to the office or to remove the petitioner from it, he may not . . . do so in this mandamus

proceeding.”).

To be clear, however, we acknowledge that mandamus has been recognized

as a proper legal action in the realm of pre-election proceedings. See Booth, 156 W. Va.

657, 677, 196 S.E.2d 299, 312 (“‘election Mandamus’ may not be employed to try title to

contested political offices, with the possible exception that we must recognize Mandamus

has been successfully used to find, in advance of the election, the disqualification of a

particular candidate by reason of his pre-existing ineligibility.”) (emphasis added)). Cf. State

ex rel. Sandy v. Johnson, 212 W. Va. 343, 571 S.E.2d 333 (2002) (per curiam) (finding that

candidate for office has clear legal right to run for office, and when prevented from

exercising that right, mandamus is appropriate remedy). While mandamus proceedings can

be appropriate in a pre-election situation, a very different policy is in place when the election

occurs: “Once an election has been held, however, sound public policy dictates that newly

elected officials not be vexed by continuing lawsuits.” Marra v. Zink, 163 W. Va. 400,

401-02, 256 S.E.2d 581, 583 (1979). Here, not only had the election occurred, but the results

had been certified and Commissioner Veltri had been sworn into office. Therefore,

11
mandamus was not a proper proceeding by which to challenge the election results, and, even

if the type of proceeding had been appropriate, Mr. Withers was not entitled to issuance of

mandamus because he was unable to show a clear legal right to the relief sought.

The lower court relied on the case of Burkhart v. Sine, 200 W. Va. 328, 489

S.E.2d 485 (1997), to support its decision to issue a writ of mandamus for the removal of

Commissioner Veltri from and the installation of Mr. Withers into the office of County

Commissioner. However, as our line of election cases has held, there are different

procedures for pre- and post-election infirmities. As argued by Commissioner Veltri, the

Burkhart case lends no support for the removal of a sworn commissioner and the installation

of a losing candidate via post-election mandamus. The circuit court’s analogies to the

individuals in Burkhart ignore the fact that this Court stressed several times: the candidate’s

qualifications in Burkhart were challenged pre-election. When the challenge in the present

case arose as to Commissioner Veltri, he already had been certified the winner of the election

and sworn into office. Therefore, we find the lower court’s reliance on Burkhart to be

misguided.

Adding further support to the determination that the lower court erred in

issuing a writ of mandamus, we highlight that the third required element for issuance of a

writ of mandamus also is missing: the absence of another adequate remedy. Post-election

remedies exist in W. Va. Code §§ 3-7-6 (2002) (Repl. Vol. 2011) and 3-7-7 (1963) (Repl.

12
Vol. 2011), which sets forth the process for contesting a pending election, as well as W. Va.

Code § 6-6-7 (1985) (Repl. Vol. 2010), allowing for a removal proceeding. The circuit court

improperly reasoned that a removal proceeding was not available in the present case because

there were no claims of misconduct or malfeasance; however, the statute provides that a

removal proceeding is available for any cause or ground provided in any statute. See Bevins

v. Blackburn, 142 W. Va. 564, 97 S.E.2d 46 (1957) (a removal action turning on residency).

Accord Syl. pt. 6, in part, Booth, 156 W. Va. 657, 196 S.E.2d 299 (“Neither a political party

executive committee nor its ‘colorable’ candidate has a clear legal right to require a decision

by this Court in Mandamus of factual matters . . . involving factual determination, [such

matters] must be adduced before and determinated by an election contest court as mandated

by the Constitution, Article VIII, s 24 and Article IV, s 11 and Chapter 3 of the West

Virginia Code or through Quo warranto or a proceeding in the nature thereof.”).

Having determined that issuance of a writ of mandamus was improper, the only

remaining issue for this Court’s determination centers around the request by Commissioner

Veltri for an award of his attorney’s fees and costs. Commissioner Veltri asserts that notions

of justice and fairness dictate that he either be indemnified from public funds, or that Mr.

Withers pay for Commissioner Veltri’s attorney’s fees and costs. However, Commissioner

Veltri concedes that he cannot be indemnified from public funds “because [this] election

contest does not arise from [his] performance of any official duty of the public office in

13
question.” Syl. pt. 5, in part, State ex rel. Hicks v. Bailey, 227 W. Va. 448, 711 S.E.2d 270

(2011). We recognize the unique facts of this case, especially of the notion that

Commissioner Veltri had to defend redistricting actions that occurred prior to his time on the

commission. Thus, Commissioner Veltri urges this Court to recognize an exception to Hicks.

In the alternative, Commissioner Veltri requests his attorney’s fees and costs be paid in

addition to the costs mandated by W. Va. Code § 3-7-9 (1963) (Repl. Vol. 2011), which sets

forth the recoverable costs in an election contest suit. Noting that this case was not instituted

as a true election contest proceeding, Commissioner Veltri also cites to W. Va. Code § 11-8-

31a (1985) (Repl. Vol. 2013) as authority for an award of fees from the governing body

where a person has successfully defended against an action seeking his or her removal from

office.

A review of the appendix record makes it clear that this Court does not have

the relevant information to determine what, if any, costs and fees are recoverable. Because

the circuit court ruled in favor of Mr. Withers, it did not award Commissioner Veltri his

attorney’s fees and costs, nor did it address the request in its order. Therefore, this case is

remanded to the lower court to determine if the attorney’s fees and costs are recoverable

under any of the theories espoused by Commissioner Veltri. If it is determined that an award

of fees and costs is appropriate, then the lower court shall take evidence to determine the

proper amount of that remedy.

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 IV.

CONCLUSION

For the aforementioned reasons, the issuance of the writ of mandamus by the

lower court is reversed. Commissioner Veltri shall remain in office for the remainder of his

elected term. Further, this case is remanded to the circuit court for a proper determination

as to whether Commissioner Veltri is entitled to an award of attorney’s fees and costs.

Reversed and Remanded.

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