State Ex Rel. Casey v. Pauley

Sprouse, Justice,

concurring:

I concur with the opinion of the majority issuing the writ of mandamus which compels the certification of Patrick Casey as judge of the 13th Judicial Circuit. I *307respectfully disagree, however, that Section 7 of Article VIII creates an additional circuit judge for the 13th Circuit.

It is true, of course, that where constitutional provisions are clear in their terms and unambiguous in their meaning, the provisions will be literally applied and not interpreted. It is also true, however, that where a constitutional provision is not clear, resort must be had to construction. 16 Am. Jur. 2d Constitutional Law, Section 58, pages 230-31. See also, 16 Am. Jur. 2d Constitutional Law, Section 76, pages 258-59, wherein it is said: “* * * [Constitutional language will not be construed in such a way as to lead to an absurd result * * *. Absurd results must be avoided even if this entails a disregard of the plain meaning of the constitution.” See also, Schaefer v. Thomson, 240 P. Supp. 247, 252 (D.C. Wyo.), where that federal district court, in interpreting a provision of the Wyoming Constitution stated:

“While the wisdom or policy of constitutional provisions are not to be questioned, still courts are not to act in a manner which brings about * * * palpable absurdities. * * *
“* * * None of the recent cases in this area require that a federal court adhere blindly to state law when to do so would produce a ridiculous result or perpetrate a manifest injustice upon a state and its people.” Schaefer v. Thomson, supra at footnote 9.

The Supreme Court of the United States, through an opinion of Chief Justice Marshall, spoke early on this point. It held that, if a literal reading of the words of a constitution leads to absurd results or results in an injustice to the public, then the true intention is to be sought from the spirit of the constitution by reading its entire collected wording.

It is difficult to conceive a greater ambiguity than the juxtaposition of statutory language creating another *308two-year judgeship for Kanawha County. It is not a reasonable interpretation of the Constitution to thwart the will of the electorate expressed by the ballot — defeating one candidate for judge and electing another. The history of this constitutional proposal nowhere suggests such a result.

“It is settled that in placing a construction on a constitution or any clause or part thereof, a court may look to the history of the times and examine the state of things existing when the constitution was framed and adopted, in order to ascertain the prior law, the mischief, and the remedy.” 16 Am. Jur. 2d Constitutional Law, Section 87, pages 270-71. “The question in interpreting a constitution is not so much how it was understood by its framers as how it was understood by the people adopting it, * * *.” 16 Am. Jur. 2d Constitutional Law, Section 88, page 274.

It is abundantly clear from the very recent history of the legislative and public action, amending this part of our Constitution, that there was no intention or understanding to add to the number of judges except by future legislation. This is also explicit from the constitutional instrument itself.

We must, of course, construe the amendment as a whole and not in isolated parts. See 16 Am. Jur. 2d Constitutional Law, Section 66, page 242, which states: “In construing a constitutional provision, it is the duty of the court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision. * * *”

There was nothing in the proposed Article VIII submitted for ratification on November 5, 1974 that suggested to the people of Kanawha County or West Virginia that they were voting for two intermediate court judges, nor for the election of one intermediate court judge for one full term and for an extension of an incumbent intermediate court judge for an additional two years. The only provisions of Article VIII relating to election of judges are the general provisions contained *309in Section 2 and Section 5. Section 2 provides that “[t]he justices shall be elected by the voters of the State for a term of twelve years * * *.” Section 5 provides that “[t]he judge or judges of each circuit court shall be elected by the voters of the circuit for a term of eight years, * * While Section 5 states that “[t]he Legislature may increase, or other than during the term of office decrease, the number of circuit judges within a circuit,” the same provision specifically provides that “[t]he judicial circuits in existence on the effective date of this article shall remain as so constituted until changed by law * * After November 5, 1974, the effective date of the new Article VIII, the Legislature could increase the number of circuit judges in Kanawha County. It had no such constitutional power prior to that time. It is clear, then, that if an additional judgeship was created, it was by the language of the constitutional amendment itself. As the quoted language indicates, there is no reference to an extra judge for Kanawha County. The entire structure of the amendment negatives such an inference— specific circuits and numbers of judges are nowhere mentioned, rather there is a general uniform plan or scheme for judicial circuits throughout the State. Concerning the number of judges in the State, the Judicial Reorganization Amendment emphasizes the status quo. It specifically leaves to the future any change in the number of judges in any circuit, charging the Legislature to make any such needed changes by law.

The majority opinion stresses the language of Section 7 extending the term of the intermediate court to 1976. The tenure of a judge or a court and the term of the court are certainly not synonymous. There are often two or more judges having tenure in one statutory term of a court. The obvious example is created by the death or resignation of an incumbent judge midway through his term of office. An appointed judge would serve a portion of that same term until the next election, and he in turn may be defeated by a third judge for the third portion of the unexpired term. Section 7 provides for such contingencies.

*310So here the meaning of this constitutional phrase is to extend the term of the Intermediate Court of Kanawha County until 1976. Judge Wood’s tenure in that term, however, was terminated in 1974 by the voters of Kana-wha County. Simultaneously Patrick Casey was elected to a full eight-year term commencing in 1974 and expiring in 1982. Whether this term would be extended to 1984 is not a question presented on this appeal. I believe this is a logical interpretation of the special language extending the term. The spirit and meaning of Article VIII, as a whole, conclusively supports this interpretation.

Sections 1 through 15 of the new Article VIII, contain not the slightest intimation that an extra circuit judgeship was created for Kanawha County for a period of two years or otherwise. There is not the slightest intimation that the specific will of the electorate is to be constitutionally “altered”. To so interpret a constitutional provision is counter to the basic concepts of a democratic society. If the Legislature desired to recommend to the people the constitutional creation of another judgeship, it could have done so. If we are to interpret this as its intention, it should be from clear and unmistakable language.