When a county commissioner files candidacy paperwork while living in one magisterial district but moves to a different district before the general election, which district counts as 'his' for the constitutional rule that no two commissioners can be elected from the same district?

Plain-English summary

Harrison County had a puzzle. A current county commissioner had filed his pre-candidacy paperwork while a resident of one magisterial district, but had moved to a different district before the general election that elected him. The county commission needed to know which magisterial district was "open" (i.e., available for the next candidate) under the West Virginia Constitution's rule that "no two [county] commissioners shall be elected from the same magisterial district." W. Va. Const. art. IX, § 10.

Attorney General Patrick Morrisey said: the open district is the one the commissioner did not live in on the day he was elected. In other words, residence on the date of the general election controls; the residence at filing time does not.

The opinion's authority for this is Burkhart v. Sine, 200 W. Va. 328 (1997). In Burkhart, a commissioner had filed in one district but, due to redistricting, lived in a different district by election day. When two later candidates filed from the two different districts, the Supreme Court of Appeals held the commissioner had been "elected from" the district he lived in on election day, foreclosing any other candidate from that same district during his term. The Court also said: "once 'elected from' a district, 'a candidate carries that residence with him or her throughout the entire term.'"

The 2009 enactment of W. Va. Code § 7-1-1b complicated the picture without overturning the rule. Section 7-1-1b imposed a separate residency requirement at the time of filing or appointment. Buckner v. Vinciguerra (2012) clarified that § 7-1-1b is "in addition to" art. IX, § 10's election-day rule. A candidate must satisfy both. Buckner enforced the constitutional rule by treating residence on election day as decisive, even where a candidate had filed from a then-open district but moved into an occupied district before the election.

The opinion drew one important boundary using Veltri v. Parker (2013): Burkhart and Buckner govern pre-election challenges and future-election eligibility analyses, but they do not authorize post-election invalidation through mandamus. Veltri held that mandamus is not the right vehicle to overturn an election after it occurs.

So Harrison County's answer: the commissioner was "elected from" the second district (where he lived on election day), and a candidate seeking to run in the next election can run from the first district (where the commissioner originally filed) without violating the one-per-district rule.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does article IX, § 10 actually say?
A: County commissioners "shall be elected by the voters of the county, and hold their office for a term of six years," and "no two of said commissioners shall be elected from the same magisterial district." W. Va. Const. art. IX, § 10. W. Va. Code § 3-5-4(b)(1) cross-references this rule.

Q: Why does residence on election day control instead of residence at filing?
A: That's Burkhart's reading of "elected from." The constitutional phrase ties to the moment of election, not the moment of filing. The Court emphasized that view of the text and applied it consistently in Buckner.

Q: What about W. Va. Code § 7-1-1b?
A: The Legislature added § 7-1-1b in 2009 to give a clearer rule on candidate residency at filing. Buckner held it works alongside, not in place of, the constitutional rule. A candidate must be a resident of the magisterial district he or she seeks to represent at the filing deadline (or appointment), AND must continue to live in that district through election day to satisfy art. IX, § 10's "elected from" requirement.

Q: What if the commissioner moves back to the original district mid-term?
A: Doesn't change anything for purposes of the magisterial-district rule. Burkhart says the commissioner "carries that residence with him or her throughout the entire term." Election-day residence is the fixed point for the term.

Q: What's the practical risk for someone who files in District A and moves to District B before the election?
A: If District B already has a sitting commissioner, election-day residence in District B disqualifies the candidate under art. IX, § 10 (per Buckner). The candidate's pre-election challenge avenue is mandamus before the election. Post-election challenges through mandamus are foreclosed by Veltri.

Q: Could a circuit court invalidate an election that already happened?
A: Veltri says mandamus is not the right tool for that, but does not necessarily foreclose all post-election remedies. The opinion did not analyze what alternative procedures (like quo warranto) might be available, since the question presented was about the next election, not the prior one.

Q: Does the residency-at-filing requirement in § 7-1-1b have to match the residency-on-election-day rule?
A: Functionally yes. A candidate has to satisfy both: § 7-1-1b at filing or appointment, and art. IX, § 10 at the general election. Failing either is fatal.

Background and statutory framework

The interaction here is between a constitutional one-commissioner-per-district rule and a statutory residency rule:

• W. Va. Const. art. IX, § 10: Commissioners are elected for six-year terms, and no two may be "elected from" the same magisterial district. Burkhart v. Sine (1997) tied "elected from" to election-day residence.
• W. Va. Code § 7-1-1b: Adopted in 2009 in response to confusion after Burkhart. Requires candidates to be residents of their target magisterial district at the candidacy filing deadline or at the time of party-committee appointment. Buckner v. Vinciguerra (2012) treated this as additional to, not a substitute for, the constitutional rule.

The opinion identified one Court decision that pushed back on aggressive application of Burkhart:

• Veltri v. Parker (2013): A circuit court relied on Burkhart to invalidate an election. The Supreme Court of Appeals reversed because mandamus was not the right remedy for a post-election challenge. Veltri did not undermine Burkhart's substantive rule about magisterial-district eligibility for future races.

The opinion's interpretive backbone was State ex rel. Dostert v. Riggleman (1972), which held that the timing of qualifications is determined by "the language used in constitutional or statutory provisions relating to the qualifications necessary for the office."

Citations and references

Constitutional and statutory authority:
- W. Va. Const. art. IX, § 10 (one commissioner per district)
- W. Va. Code § 5-3-2 (AG advice to prosecutors)
- W. Va. Code § 3-5-4(b)(1) (county commissioner candidacy procedures)
- W. Va. Code § 7-1-1b (residency at filing or appointment)

Cases:
- State ex rel. Dostert v. Riggleman, 155 W. Va. 808, 187 S.E.2d 591 (1972)
- Burkhart v. Sine, 200 W. Va. 328, 489 S.E.2d 485 (1997)
- Buckner v. Vinciguerra, 2012 WL 3055418 (W. Va. May 25, 2012) (mem. decision)
- Veltri v. Parker, 232 W. Va. 1, 750 S.E.2d 116 (2013)

Source

• Landing page: https://ago.wv.gov/media/17746/download?inline
• Original PDF: https://ago.wv.gov/media/17746/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

June 27, 2019

The Honorable Rachel Romano
Harrison County Prosecuting Attorney
301 West Main Street
Clarksburg, WV 26301

Dear Prosecutor Romano:

You have asked for an Opinion of the Attorney General about how to determine if a magisterial district seat for a county commissioner position is considered "open." This Opinion is being issued pursuant to West Virginia Code Section 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.

In your letter, you explain that the Harrison County Commission has asked which magisterial district is "open" for the next election where a current commissioner filed paperwork to stand for election while a resident of one district, but currently lives in another district where he moved prior to the general election in which he was elected.

Your letter raises the following legal question:

For purposes of the requirement in Article IX, § 10 of the West Virginia Constitution that "no two [county] commissioners shall be elected from the same magisterial district," is a commissioner "elected from" the district where that commissioner lived at the time he or she filed paperwork to stand for election, or the district where he or she moved after filing but before the general election?

We conclude that the "open" magisterial district in the next election is the former. The Supreme Court of Appeals has interpreted Article IX, Section 10 to mean that a county commissioner serves the county where he or she resided at the time of the general election, even if the commissioner resided in a different district at the time he or she filed pre-election candidacy paperwork. Burkhart v. Sine, 200 W. Va. 328, 332, 489 S.E.2d 485, 489 (1997).

Discussion

The West Virginia Supreme Court of Appeals has held that "the question as to when the conditions of eligibility to office must exist" is determined first by the "the language used in constitutional or statutory provisions relating to the qualifications necessary for the office." State ex rel. Dostert v. Riggleman, 155 W. Va. 808, 812, 187 S.E.2d 591, 593 (1972). The primary qualifications for county commissioners are established by Article IX, Section 10 of the West Virginia Constitution, which provides that "commissioners shall be elected by the voters of the county, and hold their office for a term of six years, . . . but no two of said commissioners shall be elected from the same magisterial district." W. Va. Const. art. IX, § 10. West Virginia Code Section 3-5-4 underscores that "[c]andidates for the office of commissioner of the county commission shall be nominated and elected in accordance with the provisions of section ten, article nine of the Constitution of the state of West Virginia." W. Va. Code § 3-5-4(b)(1).

The constitutional limitation that "no two commissioners shall be elected from the same magisterial district," W. Va. Const. art. IX, § 10 (emphasis added), is determinative. Our supreme court has explained that a candidate is "elected from" the district "in which that person resides on the day that person is elected to serve on the County Commission, that is, the date of the general election." Syl. pt. 3, Burkhart, 200 W. Va. at 329, 187 S.E.2d at 486. In Burkhart, an elected county commissioner lived in and filed for election in one district, but due to subsequent redistricting actually resided in a different district by the time of the general election. Id. at 330, 489 S.E.2d at 487. During this commissioner's term, individuals from both of the two districts filed to run as candidates in the next election, which raised the question which district was "open" for purposes of Article IX, Section 10. The court concluded that the current commissioner had been "elected from" the district in which he lived at the time of the election, and not the district where he had originally filed his candidate paperwork, thereby disqualifying any other candidate from running for that district during his tenure. Id. at 332, 489 S.E.2d at 489. Moreover, the fact that the commissioner moved back into the original district during his term did not alter the analysis, once "elected from" a district, "a candidate carries that residence with him or her throughout the entire term." Id.

The same reasoning applies to your question. You explain that a current commissioner filed pre-election paperwork while residing in one district, but moved into a different magisterial district prior to the general election in which he was elected. Burkhart instructs that the commissioner was "elected from" that second district, and no other commissioner may be "elected from" that district until the completion of the first commissioner's term. 200 W. Va. at 332-34, 489 S.E.2d at 489-91.

A 2012 memorandum decision confirms this result. See Buckner v. Vinciguerra, 2012 WL 3055418 (W. Va. May 25, 2012). The Legislature enacted West Virginia Code § 7-1-1b in 2009, after the Supreme Court of Appeals's decision in Burkhart, to resolve "confusion concerning when a candidate for county commission must be a resident of the magisterial district he or she wants to represent." W. Va. Code § 7-1-1b(a)(1). Under this statute, a candidate for county commissioner "shall be a resident from the magisterial district for which he or she is seeking election" by either "the last day to file a certificate of announcement" or "the time of his or her appointment by the county executive committee or the chairperson of the county executive commission." Id. § 7-1-1b(b)(1)-(2). In Buckner, a would-be candidate resided in an open district before the filing deadline, but moved to a district where a current commissioner resided before the general election. The candidate argued that the move did not disqualify him for the open seat because in enacting Section 7-1-1b, "the Legislature intended to supercede" Burkhart and "change the criterion for residency from the date of the general election to the last date to file a certificate of candidacy." Buckner, 2012 WL 3055418, at 2. The court rejected that argument, concluding instead that Section 7-1-1b "specified a residency requirement that is in addition to the requirement in Article IX, Section 10" because "a candidate must always meet the requirements of the Constitution." Id. The court thus doubled-down on Burkhart's rationale, finding the candidate's original residency irrelevant because at the time "a new county commissioner was being elected," the candidate "resided in a district in which a sitting commissioner already resided." Id.*

Indeed, the only time the Supreme Court of Appeals declined to apply Burkhart was in the 2013 decision in Veltri v. Parker, 232 W. Va. 1, 750 S.E.2d 116 (2013), where the court held that the circuit court improperly relied on Burkhart to invalidate the results of an election. The concern in that case, however, was that the challenger failed to use the appropriate legal process to bring a post-election challenge; Burkhart involved a pre-election mandamus challenge, and the court concluded that mandamus is not an appropriate remedy after an election has taken place. Id. at 7, 750 S.E.2d at 122. Veltri thus does not call Burkhart's holding into question when it comes to assessing an open district for a future election, that is, a duly elected county commissioner is "elected from" the magisterial district where he or she resided on the date of the general election.

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General

Thomas T. Lampman
Assistant Attorney General