H. B. 2561
(By Delegate Stalnaker)
[Introduced March 14, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section seventeen, article one,
chapter three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
section four, article five of said chapter; and to amend
and reenact sections one, two and six, article one, chapter
fifty of said code, all relating to election of magistrates;
providing that election of magistrates be nonpartisan;
eliminating nomination of magistrates in primary elections;
providing for staggered four year terms of magistrates
beginning with the general election in the year two
thousand; providing for election of a majority of the number
of magistrates allowed for each county in the general
election in the year two thousand; providing for the
remainder of magistrates allowed for each county to be elected in the general election to be held in the year two thousand, for a two year term; providing that vacancies in
the office of magistrate be filled by appointment by the
chief judge of the circuit court and that an election for
unexpired terms be held at the next general election.
Be it enacted by the Legislature of West Virginia:
That section seventeen, article one, chapter three of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section four, article
five of said chapter be amended and reenacted; and that sections
one, two and six, article one, chapter fifty of said code be
amended and reenacted, all to read as follows:
CHAPTER 3. ELECTIONS.
ARTICLE 1. GENERAL PROVISIONS AND DEFINITIONS.
§3-1-17. Election of circuit judges; county and district
officers; magistrates.
There shall be elected, at the general election to be held
in the year one thousand nine hundred ninety-two, and in every
eighth year thereafter, one judge of the circuit court of every
judicial circuit entitled to but one judge, and one judge for
each numbered division of the judicial circuit in those judicial
circuits entitled to two or more circuit judges; and at the
general election to be held in the year one thousand nine hundred
ninety-two, and in every fourth year thereafter, a sheriff, prosecuting attorney, surveyor of lands, and the number of
assessors prescribed by law for the county; and at the general
election to be held in the year two thousand two, and in every
second year thereafter, the number of magistrates prescribed by
law for the each county; and at the general election to be held
in the year one thousand nine hundred ninety, and in every second
year thereafter, a commissioner of the county commission for each
county; and at the general election to be held in the year one
thousand nine hundred ninety-two, and in every sixth year
thereafter, a clerk of the county commission and a clerk of the
circuit court for each county.
ARTICLE 5. PRIMARY ELECTIONS AND NOMINATING PROCEDURES.
§3-5-4. Nomination of candidates in primary elections.
At each primary election, the candidate or candidates of
each political party for all offices to be filled at the ensuing
general election by the voters of the entire state, of each
congressional district, of each state senatorial district, of
each delegate district, of each judicial circuit of West
Virginia, of each county, and of each magisterial district in the
state shall be nominated by the voters of the different political
parties, except that no presidential elector shall be nominated
at a primary election and except that no nonpartisan candidates
for the office of magistrate shall be nominated at a primary election.
In primary elections a plurality of the votes cast shall be
sufficient for the nomination of candidates for office. Where
only one candidate of a political party for any office in a
political division, including party committeemen and delegates to
national conventions, is to be chosen, or where a judicial
circuit has two or more circuit judges and one circuit judge is
to be chosen for each numbered division within the circuit, the
candidate receiving the highest number of votes therefor in the
primary election shall be declared the party nominee for such
office. Where two or more such candidates are to be chosen in
the primary election, the candidates constituting the proper
number to be so chosen who shall receive the highest number of
votes cast in the political division in which they are candidates
shall be declared the party nominees and choices for such
offices, except that: (1) Candidates 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; (2)
members of county boards of education shall be elected at primary
elections in accordance with the provisions of sections five and
six of this article; (3) candidates for the House of Delegates
shall be nominated and elected in accordance with the residence
restrictions provided in section two, article two, chapter one of this code; and (4) in judicial circuits having numbered
divisions, each numbered division shall be tallied separately and
the candidate in each division receiving a plurality of the votes
cast shall be declared the party nominee for the office in that
numbered division; and (5) magistrates shall be elected on a
nonpartisan ballot at general elections in accordance with the
provisions of section one, article one, chapter fifty of this
code.
In case of tie votes between candidates for party
nominations or elections in primary elections, the choice of the
political party shall be determined by the executive committee of
the party for the political division in which such persons are
candidates.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. Courts and officers.
§50-1-1. Magistrate court created; election of magistrates.
There is hereby created in each county of this state a
magistrate court with such numbers of magistrates for each court
as are hereafter provided. There shall be elected by the voters
of each county, at the general election to be held in the year
one thousand nine hundred seventy-six, and in every fourth year
thereafter, such number of magistrates as is provided in section
two of this article.
The voters of each county shall elect upon a nonpartisan
ballot provided for the purpose, at the general election to be
held in the year two thousand and at each general election
thereafter, such number of magistrates as each county is provided
in section two of this article as follows:
(a) In the year two thousand and in every fourth year
thereafter, the majority of the number of magistrates that each
county is provided in section two of this article;
(b) In the year two thousand, the remainder of the number of
magistrates as each county is provided in section two of this
article, whose election is not provided for in subsection (a) of
this section, who shall serve a term of two years;
(c) In the year two thousand two and in every fourth year
thereafter, the remainder of the number of magistrates that each
county is provided in section two of this article whose election
is not provided for in subdivision (a) of this section.
As used in this section the term "majority", when used in
reference to the number of magistrates to be elected, means one
half, or fifty percent of the magistrates in those counties which
are provided an even number of magistrates in section two of this
article, and means the smallest number required to constitute a
simple majority in those counties which are provided an odd
number of magistrates in section two of this article. The filing
fee for the office of magistrate shall be one percent of the annual salary. Except for magistrates who are elected pursuant
to subdivision (b) of this section, whose terms of office are two
years, t The term of magistrates so elected shall be for four
years. and All terms of office for magistrates shall begin on
the first day of January of the year following the year of
election.
In counties where voting machines or electronic voting
systems are used, the procedures of section eleven, article four,
chapter three and section twelve, article four-a of said chapter
three of this code shall apply respectively to the election of
magistrates in the same manner as they apply to the election of
members of the House of Delegates.
Notwithstanding the provisions of section seven, article
five, chapter three of this code, for purposes of the primary
election to be held in the year one thousand nine hundred
seventy- six, the last day for filing certificates of candidacy
for the office of magistrate shall be extended to the twenty- seventh day of February of that year.
§50-1-2. Number of magistrates.
(a) The number of magistrates to be elected in each county
of this state shall be determined in accordance with the
provisions of this section.
(b) On or before the thirty-first day of January, one
thousand nine hundred ninety-six, and on or before the first day of January in every fourth year thereafter, the supreme court of
appeals shall certify to the board of ballot commissioners of
each county the number of magistrates to be elected in that
county for the term of office commencing on the first day of
January of the succeeding year, and commencing on the first day
of January of the third succeeding year. The number of
magistrates so certified shall be determined in accordance with
the following:
(1) The court shall not provide:
(A) For the total number of magistrates in the state to
exceed one hundred fifty-six in number;
(B) For the number of magistrates in any one county to
exceed ten in number; or
(C) For the number of magistrates in any one county to be
less than two in number.
(2) The court shall determine the number of magistrates that
would be apportioned for each county by the application of an
equal proportions formula, as follows:
(A) Two magistrates shall be allocated to each county;
(B) The population of the county shall be divided by a
mathematical factor, as established by the equal proportion
method, to establish each county's priority claim to additional
magistrates above the two magistrates provided for by paragraph
(A) of this subdivision; and
(C) Additional numbers of magistrates shall be allocated to
the several counties in order of priority claims, beginning with
the largest claim, until magistrates have been assigned within
the limits of this section.
For purposes of this article, a determination made in
accordance with the provisions of this subdivision is the "equal
proportion number".
(3) The court shall determine the number of magistrates
elected in each county at the last general election and, after
the general election held in two thousand four, the last two
general elections, in which magistrates were regularly elected
next prior to the preceding census taken under the authority of
the United States government. For purposes of this article, that
number shall be referred to as the "election number".
(4) The court shall determine the number of case filings per
magistrate in each magistrate court for the most recent fiscal
year preceding the date of certification, and shall rank the
magistrate courts from one through fifty-five, in the order of
their case filings per magistrate, with the court having the most
filings per magistrate being ranked number one, and the court
with the least filings per magistrate being ranked number
fifty-five.
(5) If the court determines that the equal proportion number
for a county is the same as the election number for such county, the court shall certify that number as the number of magistrates
to be elected in that county at the next election.
(6) If the court determines that the equal proportion number
for a county is different from the election number for such
county, the court shall apply the ranking established by
subdivision (4) of this subsection and determine the number of
magistrates for such county, as follows:
(A) If the equal proportion number exceeds the election
number, the number of magistrates to be elected in that county at
the next election shall be the election number: Provided, That
if the county is ranked as one through ten, inclusive, in
accordance with subdivision (4) of this subsection, the court
shall certify the equal proportion number as the number of
magistrates to be elected in that county at the next election.
(B) If the equal proportion number is less than the election
number, the number of magistrates to be elected in that county at
the next election shall be the equal proportion number:
Provided, That if the county is ranked as one through ten,
inclusive, in accordance with subdivision (4) of this subsection,
the court shall certify the election number as the number of
magistrates to be elected in that county at the next election.
(c) Any magistrate in office at the time of the effective
date of this section shall continue as a magistrate, unless sooner removed or retired as provided by law, until the first day
of January, one thousand nine hundred ninety-three.
(d) The phrase "next election" as used in this section after
the general election held in the year two thousand, means the
next two general elections.
§50-1-6. Vacancy in office of magistrate.
When Subject to the provisions of section one, article ten,
chapter three of this code, when a vacancy occurs in the office
of magistrate, the judge of the circuit court, or the chief judge
thereof if there is more than one judge of the circuit court,
shall fill the same by appointment. until the next general
election and the person so appointed shall hold office until his
successor is elected and qualified
At such a general election in which a magistrate shall be is
elected for the an unexpired term, Such the circuit judge, or the
chief judge thereof if there is more than one judge of the
circuit court, shall cause a notice of such election to be
published prior to such election as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county involved. If the vacancy
occurs before the primary election held to nominate candidates to
be voted for at the general election, at which any such vacancy
is to be filled, candidates to fill such vacancy shall be nominated at such primary election in accordance with the time
requirements and the provisions and procedures prescribed in
article five, chapter three of this code. Otherwise, they shall
be nominated by the county executive committee in the manner
provided in section nineteen, article five, chapter three of this
code, as in the case of filling vacancies in nominations, and the
names of the persons so nominated and certified to the clerk of
the circuit court of such county shall be placed upon the ballot
to be voted at such next general election.
NOTE: The purpose of this bill is to provide that
magistrates be elected on a nonpartisan ballot and that the terms
of office of magistrates in each county be staggered.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.