IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA ELIZABETH D. WALKER, candidate for the Supreme Court of Appeals of West Virginia, Petitioner, v. Civil Action No.: 16-AA-17 Judge Tod J. Kaufman NATALIE E. TENNANT, ex-of?eio, GARY A. COLLIAS, and VINCENT P. CARDI, members of the West Virginia State Election Commission; and BRENT D. BENJAMIN, candidate for the Supreme Court of Appeals of West Virginia, Respondents. ORDER IN THE APPEAL OF ELIZABETH D. WALKER v. STATE ELECTION COMMISSION As spending by candidates and independent parties increases, so does the perception that contributors and interested third parties hold too much in?uence over the judiciai process. W. Va. Code The Public Campaign Financing Program (hereinafter the ?Financing Program?) was established for three important legislative purposes: (1) to ensure the fairness of democratic elections in this state; (2) to protect the Constitutional rights of voters and candidates from the detrimental effects of increasi_nglv large amounts of money being raised and spent to in?uence the outcome of elections; (3) to protect the impartialitv and integrity of the judiciary; and (4) t_o strengthen public confidence in the iudiciarv. W. Va. Code The statute itself 1 The West Virginia Supreme Court of Appeals Public Financing Program In 2010, the West Virginia Legislature enacted the West Virginia Supreme Court of Appeals Public Financing Program (the ?Program?}. The Program and its requirements are codified in Chapter 3, Article 12 ofthe West Virginia Code, and the Legislature has also enacted legislative rules -- West Virginia Code of State Rule 146?5, etseq. to administer it. 1 seeks to balance the expensive playing ?eld, 'where any lawyer running for West Virginia Supreme Court of Appeals can have a chance to fairly compete in our elective method of selecting judges. Candidates who participate in the Public Campaign Financing Program must agree to reject large donations and eschew funding from out?of-state groups. To access the public money, the candidate must gather 500 small contributions from individual West Virginia voters. Each qualifying contribution can be as little as $1.00; no more than $100 can be accepted from one donor. Candidates who meet these requirements receive a set amount of money from the public Fund to conduct their campaigns thereby ensuring that citizens who contribute get a bargain for their buck with the public money obtained, and the candidate can forego having to spend their own money or raising money from contributions, thereby creating a playing field that heretofore favored the rich, the entrenched (incumbents who can campaign while in Office for years) or those who have the ability to raise large sums of money. PROCEDURAL HISTORY This matter is before the Court on Elizabeth Walker?s (the challenger?s) Petition for Judicial Review of the State Election Commission?s Decision certifying Justice Brent D. Benjamin to participate in the Public Campaign Financing Program. Ms. Walker is a candidate for election to the West Virginia Supreme Court of Appeals. One seat is on the ballot to be filled by the election scheduled for May 10, 2016. On February 10, 2016, the State Election Commission certified Justice Benjamin to receive funding from the Public Campaign Financing Program. On February 16, 2016 Elizabeth Walker filed this lawsuit claiming that the decision certifying Justice Benjamin was erroneous, an abuse of the State Election Commission?s authority, contrary to the statute, and violative of certain constitutional rights she may be accorded as an opposing candidate by virtue of the discretion used by the SEC to release these public monies. Justice Benjamin filed a response on February 25, 2016, arguing that the certi?cation decision was correct and that, Beth Walker lacked the standing to sue. The Court has considered the written submissions of Petitioner and Respondent Benjamin and held a hearing on February 26, 2016 which lasted for several hours. The Court compliments both lead counsel at the trial level, Jonathan Marshall, Esq. of Bailey and Glasser for Justice Benjamin, and Thomas Ryan, Esq. of ad Gates for Elizabeth Walker. Both did an able job orally and in briefs for their clients? cause. Further, it should be noted that Justice Benjamin attended the hearing in the Circuit Court and his appearance as a client was appreciated and noted. THE ISSUE OF STANDING The State?s involvement in this campaign, through both process and the substantive release of funds has dramatically altered the balance of the playing field. In order to establish standing, the legality of the SEC customs depends considerably upon whether Ms. Walker herself is an object of the forgone action itself. There can be little question that the release of funds has or will cause her ?nancial injury (or votes) and that a judgement in her favor will redress it. (Her candidacy?s involvement in this very challenge at the SEC level before the funds were released substantiated her causal connection between the injury and the conduct complained of. Therefore, Ms. Walker is HELD to have standing to bring this suit2. 2 Lujan v. Defenders of Wildlife, 504 us. 555 (1992). STANDARD OF REVIEW This case is before the Court on an administrative appeal under West Virginia Code et seq. and Rule 2 of the West Virginia Rules of Procedure for Administrative Appeals. In such an appeal, the Circuit Court is to reverse, vacate, or modify the agency?s decision if: [T]he substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the Whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion3. This Court will only consider those issues properly raised by written brief in this proceeding. See W. Va. Code the record below and the demonstrative charts used at the hearing connected with the briefs, arguments and previously addressed evidence. FINDINGS OF FACT 1. Respondent Justice Brent D. Benjamin and Petitioner Elizabeth Walker are among the candidates in the 2016 election for a single seat on the West Virginia Supreme Court of Appeals scheduled state?wide for May 10, 2016. 3 va. Pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State of West Virginia Human Rights Comm'n, 172 627, 628, 309 342, 343 [1983]; see also W. Va. Code (same). ?The 'clearly wrong? and the ?arbitrary and capricious? standards of review are deferential ones which presume an agency?s actions are valid as long as the decision is supported by substantial evidence or by a rational basis.? Syl. Pt. 3, Curry v. W. Va. Consoi. Pub. Ref. Sci, 236 W. Va. 188, 778 637, 638 (2015]. reviewing court must evaluate the record of an administrative agency?s proceeding to determine whether there is evidence on the record as a whole to support the agency?s decision. The evaluation is conducted pursuant to the administrative body?s findings of fact, regardless of whether the court would have reached a different conclusion on the same set of facts.? Syl. Pt. 1, Walker W. Va. Ethics Comm?n, 201 W. Va. 108, 109, 492 167, 168-69 (1997i 2. At the time Justice Benjamin began his campaign, he was as a regular candidate seeking re-election to the West Virginia Supreme Court of Appeals, meaning that he was eligible to raise any of the amount of money he was able to. 3. On February 18, 2015, Justice Benjamin ?led a pre-candidacy form with the Secretary of State, through which he declared his intent seek re-election to the Supreme Court. Petitioner?s Designation of Record (?Petitioner?s Record?) at Exhibit A. 4. On March 30, 2015, Justice Benjamin ?led an amended pre?candidacy form with the Secretary of State, through which he changed his political party to ?non-partisan? and enrolled in electronic report ?ling with the Secretary of State. Petitioner?s Record at Ex. B. 5. Justice Benjamin?s ?exploratory period? for the election began on February 18, 2015. 6. From January 2015 until September 2015, the Committee to Re-Elect Justice Benjamin received $9,950 in pie?candidacy contributions. (Ex. CC, Exploratmy Summary Report.) 7. Justice Benjamin raised exploratory contributions, as that term is de?ned in W. Va. Code on March 3, April 20, 27, 29, May 20, June 22 and July 21 and 22, 2015. 8. On September 11, 2015, Justice Benjamin ?led a Declaration of Intent publicly announcing his intent to participate in the West Virginia Supreme Court of Appeals Public Campaign Financing Program, and became a participating candidate under the statute. (Ex. P, Declaration of Intent.) 9. Accordingly, pursuant to W. Va. Code 3?12?7, Benjamin?s exploratory period ended on September 11, 2015 when he ?led his Declaration of Intent to Participate. 10. From September 2015 through January 2016, The Committee to Re-Elect Justice Benjamin (?Benjamin campaign?) collected qualifying contributions. 11. Justice Benjamin?s campaign did not ?le any exploratory reports or receipts for contributions, as required by W. Va. Code 3-12?8 with reSpect to the exploratory contributions he raised on March 3, April 20, 27, 29, May 30, June 22 and July 21 and 22, 2015 until February 8, 2016. Petitioner?s Record at Ex. H. 12. Justice Benjamin and/or his campaign asserts that the reason that he did not ?le any reports or receipts re?ecting collection of exploratory contributions until February 8, 2016 is because the electronic ?ling system established by the Secretary of State was unequipped to receive said reports. I 13. On October 1, 2015, Justice Benjamin was provided an electronic form from the Secretary of State?s of?ce entitled Supreme Court of Appeals Public Campaign Financing Report for (month).4? 14. The WV Supreme Court of Appeals PCF Report was drafted by the Secretary of State in such a way that it could be used to submit either exploratory contributions or qualifying contributions. Id. 15. Justice Benjamin?s ?qualifying period? for the election began on September 11, 2015 and ended on January 30,2016. 16. On October 1, 2015, Justice Benjamin or his campaign submitted a report of ?qualifying contributions,? as that term is de?ned in W. Va. Code 3-12?1 (13), that were 4 Supreme court of Appeals PCF Montth Report?). Petitioner?s Supplement to Respondent State Election Commission Certification and Designation of Record Pursuant to Rule 4 ("Petitioner?s Supplement") at Ex. PP (also marked as Ex. during the February 26, 2016 hearing ("Circuit Court Hearing?)). 6 collected by his campaign during the period commencing on September 11, 2015 and ending on September 30, 2015 (?the September QC 17. Justice Benjamin initially filed the September QC Report by email while the Secretary of State?s of?ce updated the online ?ling system. Circuit Court Hearing at Ex. C. 18. The September QC Report re?ected zero dollars in qualifying contributions. Id. 19. On November 1, 2015, Benjamin submitted a report online of qualifying contributions collected by his campaign during the period commencing on October 1, 2015 and ending on October 31, 2015 (the ?October QC Report?)6. 20. The October QC Report re?ected the receipt of $1,360 of qualifying contributions from 20 contributors. Id. 21. On December 1, 2015, Benjamin submitted a report online of qualifying contributions collected by his campaign during the period commencing on November 1, 2015 and ending on November 30, 2015 (the ?November QC Report?)? 22. The November QC Report re?ected the receipt of $1,299 of qualifying contributions from 69 contributors, for a total of $2,659 in qualifying contributions. Id. 23. On January 1, 2016, Benjamin submitted a report online of qualifying contributions collected by his campaign during the period commencing on December 1, 2015 and ending on December 31, 2015 (the ?December QC Report?)8. 24. The December QC Report re?ected the receipt of $4,045 of qualifying contributions from 85 contributors, for a total of $6,704 in qualifying contributions. Id. 5 SEC Record at Ex W. 5 SEC Record at Ex. 7 SEC Record at Ex. Y. 3 SEC Record at Ex. 2. 25. On January 31, 2016, Benjamin submitted an amended report online of qualifying contributions collected by his campaign during the period commencing on December 1, 2015 and ending on December 31, 2015 (the ?Amended December QC Report?)9. 26. The only difference between the Amended December QC Report and the December QC Report is an additional $10 qualifying contribution, raising the total amount of qualifying contributions collected to $6,714. Id. 27. On February 1, 2016, Benjamin submitted a report online of qualifying contributions collected by his campaign during the period commencing on January 1, 2016 and ending on January 31, 2016 (the ?January QC Report?)10. 28. The January QC Report re?ected the receipt of $34,797 of qualifying contributions from a total of 409 contributors, for a total of $41,5 11 in qualifying contributions. Id. 29. Of those amounts, 113 contributors provided $10,466 on Friday, January 29 and 178 provided $15,702 on January 30, the last day of the ?qualifying period.? 30. At least 192 of the qualifying contributions submitted with the January QC Report were made online and did not contain a handwritten signature. The handwritten signatures are needed to investigate and verify credibility of the donor and is required by Statute. 31. In total, Justice Benjamin submitted 583 contributions, totaling $41,511, which he sought to be considered ?qualifying contributions.? 32. The statutory deadline for Benjamin to submit his Application for Certification was February 2, 2016. 9 SEC Record at Ex. AA. 1? SEC Record at Ex. as. 33. Justice Benjamin?s campaign manager, Darrell Shull, submitted an Application for Certi?cation sworn by Justice Benjamin via email at 4:55 pm. on February 2, 2016. Circuit Court Hearing Ex. E, SEC Record EX. Q, and Petitioner?s Supplement at EX. PP. 34. The Application for Certi?cation attached to the 4:55 pm. email was time? stamped at 5:09 pm. on February 2, 2016. 35. Justice Benjamin?s sworn Application for Certi?cation stated that his ?campaign has complied with and will continue to comply with all requirements set forth in the W. Va. Code throughout the applicable campaign.? SEC Record Ex. Q. 36. Justice Benjamin?s sworn Application for Certi?cation further stated that he had ?complied with the contribution restrictions of W. Va. Code 3?l2-l through 3-12-16. Id. 37. At 6:18 pm. on February 2, 2016, Timothy Leach, Solicitor to the West Virginia State Election Commission, responded to Mr. Shull, asking, ?Does the candidate wish to certify that he has met all requirements of the code before obtaining the con?rmation signatures?? Circuit Court Hearing EX. E. 38. Mr. Shull responded at 6:22 pm, to ?Please stand by I am speaking with legal counsel now.? Id. 39. The Secretary of State presented Justice Benjamin?s sworn Application for Certi?cation that was time-stamped at 5:09 pm. to the SEC as the of?cial copy. See SEC Record at Ex. E.11 40. On February 2, 2016, Ms. Walker challenged 154 of the contributions Justice Benjamin sought to be considered ?qualifying contributions? pursuant to W. Va. Code 3?12~ The Court ruled from the bench and on the trial court record and so FINDS that the Secretary of State and the SEC had discretion within the custom and practice and option of extending office hours at [election time in the Secretary of State?s Office to accept E?mail stamped at 5:09 PM. on February 2, 2016 under the facts of this case. 9 10(g), which encompassed certain qualifying contributions Benjamin had received prior to January 2016. SEC Record at EX. R. 41. Ms. Walker included with her challenge a separate ?Qualifying Contribution Challenge Form? that had been provided by the Secretary of State for each challenged qualifying contribution identifying the speci?c alleged de?ciency, including receipts of certain qualifying contributions that were made online but did not have a handwritten signature. Id. at Ex. T. 42. Ms. Walker also stated that, ?West Virginia Code 3-12-8 requires that all exploratory contributions be reported. [Benjamin] has not reported any exploratory contributions. However, upon information and belief, at least three fundraising events for the bene?t of the Candidate were held during the Exploratory PeriodFebruary 1, 2016 at 4:47 pm, Benjamin ?led the receipts supporting the qualifying contributions reported on the January QC Report. Id. at V. 44. Ms. Walker was provided a copy of those receipts by the Secretary of State?s of?ce on February 2, 2016. 45. On February 3, 2016, Ms. Walker challenged 365 contributions that she was provided on February 2nd, including receipts of certain contributions that were made online but did not have a handwritten signature. Id. at Ex. S. 46. Ms. Walker included with her challenge a separate ?Qualifying Contribution Challenge Form? for each challenged qualifying contribution identifying the speci?c alleged de?ciency, including her challenge to those receipts of certain qualifying contributions that were made online but did not have a handwritten signatureFebruary 3, 2016, the SEC convened to review the 154 challenges ?led by Walker on February 2nd. SEC Record at EX. E. 10 48. Among others, Ms. Walker challenged the electronic qualifying contributions of Delligati, Harrington, Reed, J. Charnock and Bell because the receipt did not contain a handwritten signature. Id. at Exs. and (20211?281 49. The SEC voted to sustain Ms. Walker?s challenge because the qualifying contributions received electronically did not have a handwritten signature, as prescribed by W. Va. Code Id. at Ex. (202:1-281:21) 50. On February 4, 2016, the SEC convened to review the 365 challenges brought by Ms. Walker on February 3rd in response to the receipts submitted by Justice Benjamin on February and received by Ms. Walker on February 2nd. 51. Among the-365 challenged, at least 192 of those contributions were electronic qualifying contributions that did not contain a handwritten signature, the same issue the SEC decided the day before was a fatal defect. SEC Record at Exs S. and V. 52. The validity of handwritten signatures of the donors is an essential, non- discretion part of this Program. It goes to the heart of accountability, integrity and con?dence in this election Funding Program. W. Va. Code 3?12?2 53. The SEC refused to entertain the merits of any of Walker?s 365 challenges because the Secretary of State had decided on the evening of February 3rd that Walker was required to include a copy of the receipt for the respective challenged contribution, along with Secretary of State?s ?Qualifying Contribution Challenge orrn? that provided the specific basis for each challenge. SEC Record at EX. (39:20-40:3; 83:9-16; 88:14-23; 54. Those same receipts at issue were at all times in the custody, control and possession of the Secretary of State. 11 55. The SEC voted to reconsider its decision to sustain the challenge to the qualifying contributions of Delligati, Harrington, Reed, J. Charnock, and Bell as the Justice Benjamin had obtained and submitted a physical signature for each of these contributors before the end of the qualifying period, which was February 2nd. Id. at 56. Those physical signatures, however, were apparently not made part of the record in this matter. 57. The record contains no evidence that Benjamin submitted handwritten signatures with the receipts for the 192 qualifying contributions reported on February before February 2nd, the end of the qualifying period. 58. On February 5, 2016, the Secretary of State?s of?ce represented to the SEC that 512 of the 583 contributions that Benjamin sought to be considered ?qualifying contributions? satis?ed the statutory requirements of W. Va. Code ?3~12?9. SEC Record at Ex. (22-23). 59. By deduction, the Secretary of State?s representative?s representation to the SEC had to include the 192 qualifying contributions received online that did not contain a handwritten signature. 60. As of February 2, 2016, the end of the ?qualifying period,? Justice Benjamin?s campaign failed to ?le any report conveying any exploratory contributions or receipts. 61. On February 5, 2016, Justice Benjamin?s representative requested an exemption from the electronic ?ling requirement. SEC Record at Ex. EX PP (February 5, 2016 email from Mr. Shull to Mr. Leach sent at 12:10 12 62. The SEC granted the hardship exemption allowing Benjamin until February 10, 2016 to ?le the exploratory reports. Id. 63. On February 8, 2016, Benjamin filed an exploratory period summary report showing that he had raised $9,950 during the exploratory period, including $200 from West Virginians for Coal on April 29, 2015 and $500 from the First Energy Political Action Committee on April 17, 2015 (Id. at Ex. exploratory reports for September (Id. at Ex. and eXploratory contribution receipts (Ex. GG). 64. On February 9, 2016, Benjamin ?led an amended exploratory period summary report (EX. amended reports (Ex. amended exploratory contribution receipts (Ex. and documentation indicating that Benjamin returned the exploratory contributions he had retained from the two political action committees (Ex. II). 65. On February 10, 2016, the SEC convened to consider Justice Benjamin?s Application for Certi?cation. Ex. K. 66. Justice Benjamin?s representative offered SEC Record Ex. LL in support of the request for the application of the hardship exemption to the ?ling of the exploratory period paperwork. 67. Ms. Walker?s representative offered SEC Record Ex. MM in support of her opposition to the application of the hardship exemption to the ?ling of the exploratory period paperwork. 68. The SEC voted to deem the exploratory summary report, the exploratory period reports and the exploratory contributions receipts ?led timely. SEC Record at Ex. KK (30-33). 13 69. On February 10, 2016, the SEC voted to certify Benjamin pursuant to W. Va. Code ?3-12-10(b) to receive public campaign financing funds. SEC Record at KK (40). 70. The Secretary of State immediately thereafter noti?ed the Auditor and Treasurer that the SEC had authorized the disbursement of the public funds. Record at Ex. 00. This Review Petition l. On February 16, 2016, Ms. Walker ?led her Judicial Review ofihe February 10, .2016 Decision of The West Virginia State Election Commission Certifying Brent D. Benjamin Pursuant to Va. Code 3w12-10 (the ?Petition?) and Application for Stay (the ?Application for Stay?). 2. Through the Petition, Ms. Walker appeals the February 10, 2016 decision certifying Benjamin pursuant to W. Va. Code 3?12-10 on grounds that Benjamin: (1) failed to timely file reports and receipts for exploratory contributions pursuant to W. Va. Code 3-12-8(d) and was not entitled to a hardship exemption extending the strict deadline set forth in the statute to ?le those reports and receipts; (ii) failed to timely ?le an Application for Certification pursuant to W. Va. Code and CSR 146-561; and failed to meet the threshold five hundred qualifying contributions for certi?cation pursuant to W. Va. Code 3. As part of her Application for Stay, Ms. Walker sought an order preventing Benjamin from expending the state campaign finance funds until her Petition could be decided on the merits. 4. Justice Benjamin filed a response in opposition to the Application for Stay on February 24, 2016. 14 5. Justice Benjamin filed a response in opposition to the Petition on February 25, 2016. 6. On February 26, 2016, the Circuit Court held a hearing, lasting three hours more or less, on Ms. Walker?s Petition. All counsel was present and appeared at the hearing. Conclusions of Law 1. Legislative rules have the force and effect of law and must be enforced as written. See, Swtger v. UGI/AmertGas, Inc, 216 W. Va. 756, 763, 613 904, 911 (2005) regulation that is proposed by an agency and approved by the Legislature is a ?legislative rule? as de?ned by the State Administrative Procedures Act, W. Va. Code, 1?2(d) [1982], and such a legislative rule has the force and e??eet oflaw.?) (emphasis added) (quoting Smith v. West Virginia Human Rights Comm 216 2, 602 445 (2004)). 2. Further, administrative board must abide by its own rules and the . . 1 legislative mandates.? 2 12 Tosker v. Mohn, 165 W. Va. 55, 65, 267 183, 189 (1980) (citing v. Board of Education ofWayne County, W. VOL, 163 W. Va. 1, 254 561 (W. Va. 1979)); see also State ex rel. Barker v. Malachite, 167 W. Va. 155, 169, 279 622, 631 (1981) (?When the Legislature delegates its rule?making power to an agency of the Executive Department. .., it vests the Executive Department with the mandatory duty to promulgate and to enforce rules and regulations. Once the executive of?cer or agency has made and adopted valid rules and regulations pursuant to the grant of the legislative powers, they take on the force of statutory law?). 15 3. properly promulgated legislative rule can be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious.? Appaiachiah Power Co. v. State Tax Dept, 195 573, 466 424 (1995). 4. Thus, together, the statute and the raZeS set forth the requirements that a candidate mast satis? in order to be certified by the SEC as eligible to receive public campaign ?nancing under the Program. 5. The statute establishes an exploratory period ?during which a participating candidate may raise and spend exploratory contributions to examine his or her chances of election and to quality for public campaign ?nancing? under Article 12. See W. Va. Code 3? 126(5). 6. ?The exploratory period begins on January 1 the year before the election in which the candidate may run for Justice of the Supreme Court of Appeals and-ends on the last Saturday in January of the election year.? See id. 7. An individual candidate?s ?ling of his or her Declaration of Intent to Participate marks the end of the exploratory period. See W. Va. Code 3?12?3(4) (de?ning ?exploratory contribution? as ?a contribution of no more than $1,000 made by an individual adult, including a participating candidate and members of his or her immediate family, during the exploratory period but prior to?ling the declaration of intent?) (emphasis added). 8. Pursuant to W. Va. Code the beginning of each month a participating or certi?ed candidate or his or her ?nancial agent shall report all exploratory contributions, expenditures and obligations along with all receipts for contributions received during the prior month to the Secretary of State. Such reports shall be filed electronically.? 16 9. Pursuant to W. Va. Code later than two business days after the close of the qualifying period, a participating candidate or his or her ?nancial agent shall report to the Secretary of State on appropriate forms a summary (1) All exploratory contributions received and funds expended or obligated during the exploratory period together with copies of any receipts not previously submitted for exploratory contributions.? See also CSR 146?5? 1 1.4. 10. A candidate may not be certi?ed if s/he does not comply with these reporting obligations. See W. Va. Code 11. Justice Benjamin?s ?exploratory period? for the election began on no later than February 18, 2015 and ended on September 11, 2015 when his honor signed his Declaration of Intent to Participate. See W. Va. Code (5). 12. As such, from February 18, 2015 through and until September 11, 2015, Justice Benjamin was entitled to seek ?exploratory contributions? ?to examine his chance of election and to qualify for public ?nancing for public ?nancing? and was required to electronically ?le with the Secretary of State reports of those contributions including underlying receipts on a basis. See W. Va. Code 3?12?36), see also CSR 13. Justice Benjamin did in fact receive exploratory contributions during the exploratory period on March 3, April 20, 27, 29, May 20, June 22, July 21 and July 22, 2015, but failed to ?le any exploratory period reports at the beginning of the month following receipt of such contribution. 14. The Justice or his campaign failed to comply with the deadlines set forth in W. Va. Code 3?12?36), and CSR because the Justice and/or his campaign did not timely ?le reports of exploratory contributions until February 8, 2016. 17 15. The Justice was obligated to file an exploratory period report no later than October 1, 2015, the beginning of the month following his September 11, 2015 Declaration of Intent to Participate, an unequivocal statement of his intent to receive public campaign ?nancing. 16. Under West Virginia Supreme Court precedent, this Court must strictly enforce the reporting deadlines set forth in W. Va. Code and CSR 146?5113.? 17. Strict adherence to deadlines related to political campaigning activity is paramount because, ?[o]therwise, the actions of the Secretary of State in that regard would be subject to constant allegations of arbitrariness or favoritism.? Brady, 176 W. Va. at 574, 346 at 550. Nothing could be so political as running for public office and the method by which and from what sources campaigns are funded. 18. At the latest, once Benjamin became a ?participating candidate? on September 11, 2015, he was required to file an exploratory report no later than October 1, 2015; otherwise, the entire statutory scheme surrounding the exploratory contribution period would be rendered meaningless, and each part of a statute must be given effect. Feraleto Steel Co. v. Oaghz?on(2012). 13 See, Brady v. Hechler, 176 W. Va. 570, 571-72, 346 546, 547-48 (1986) [granting mandamus relief directing the Secretary of State to strike a candidate from the ballot whose certi?cate of candidacy for nomination was one day late and explaining that, ?[ilt is generally and almost universally held that statutory provisions in election statutes, requiring that a certificate or application of nomination be filed with a specified officer within a stipulated period of time, are mandatory?); Styl. Pt. 3, State ex rel. Baker v. Bailey, 152 W. Va. 400, 163 873 (1968) a statute provides for a thing to be done in a particular manner or by a prescribed person or tribunal it is implied that it shall not be done otherwise or by a different person or tribunal"); State ex rel. Vernet v. Wells, 87 275 (1920) (striking candidates from local non-partisan ballots who had not filed certificates of nominations in time); see also Helton v. Reed, 219 W. Va. 557, 561, 638 160, 164 (2006) (explaining tax deadlines must be strictly enforced); State ex rel. Clark v. Blue Cross Blue Shield of W. Virginia, lnc., 195 W. Va. 537, 542, 466 388, 393 [1995) compliance with all filing requirements is the rule in insurance insolvency cases?). Humble Oil Re?ning Company v. Lane, 152 578, 165 379 (1969) (internal quotations omitted) (?[Sltatutes of limitations are favored in the law and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. It has been widely held that such exceptions are strictly construed and are not enlarged by the courts upon considerations of apparent hardship?). 18 19. To be certi?ed under Article 12, a candidate must have ?met all other requirements of [Article including the reporting requirements set forth in W. Va. Code 3?12?36), and See W. Va. Code 20. Because Justice Benjamin did not meet the reporting requirements set forth in W. Va. Code and CSR the certi?cation was clearly erroneous and is hereby be REVERSED by this Court. a. The Hardship Exemption 21. Counsel for Justice Benjamin and his campaign asserts that the Justice or his campaign were physically unable to submit such reports and receipts because the Secretary of State?s online campaign finance reporting system was not equipped to accept the exploratory period reports because he had initial registered as a ?non-participating candidate.? See SEC Record at Bxs. G, KK. 22. Accordingly, on February 5, 2015, Justice Benjamin requested a ?hardship exemption? from the electronic ?ling obligation. 23. West Virginia Code provides as follouvs: At the beginning of each month a participating or certi?ed candidate or his or her financial agent shall report all exploratory contributions, expenditures and obligations along with all receipts for contributions received during the prior month to the Secretary of State. Such reports shall be ?led electronically: Provided, That a committee may apply for an exemption in case of hardship pursuant to subsection of section ?ve-b, article eight of this chapter. If the candidate decides not to run for of?ce all unspent or unobligated exploratory contributions shall be sent to the State Election Commission for deposit in the fund. If the candidate decides to run for of?ce as a nonparticipating candidate the unspent or unobligated exploratory contributions shall be used in accordance with articles eight and twelve of this chapter. 19 24. In reviewing this statutory provision, the Court is guided by the basic rules of statutory construction?. 25. ?The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature.?15 26. statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.?16 I 27. The Court ?nds that W. Va. Code clearly and unambiguously applies to the form or manner in which a candidate ?les his/her receipts (216., electronically or otherwise) and does not affect the timing of that ?ling. 28. As a result, the hardship exemption would only apply had the issue with the electronic ?ling become known on February 5, 2015. 29. The facts, however, clearly show that Justice Benjamin and the Secretary of State?s of?ce knew of the electronic?filing issue early as October 1, 2015. See Circuit Court Hearing Ex. C. 30. Moreover, the facts in this case show that Justice Benjamin had an electronic copy of the Secretary of State?s West Virginia Supreme Court of Appeals PCF Report as early as October 1, 2015. See id. 14See Martin 12. Hambfet', 230 W. Va. 183, 187, 737 80, 84 (2012). 151dId. (citations omitted). ?In other words, where the language of a statutory provision is plain, its terms should be applied as written and not construed.? Id. (citations and internal quotations omitted); State v. General DanieZMorgan PostNo. 548, VF. W, 144 137, 145 107 353, 358-5 9 (1959) (?When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute?). 20 31. Indeed, Benjamin used that form to ?le his initial qualifying contribution report, with no objection from the Secretary of State. Id. 32. There was nothing at all preventing Justice Benjamin or his campaign to use the same very form to timely file the exploratory period report as early as October 1, 2015, but failed to do so, as required by law. 33. Justice Benjamin?s failure to ?le the exploratory reports was not attributable to an electronic ?glitch,? rather neglect to which the hardship exemption does not apply. 34. Accordingly, the hardship exemption did not apply and the SEC was clearly erroneous in granting Justice Benjamin a hardship exemption extending the deadline for Benjamin to file his statutorily?required exploratory reports, with no precedent, regulations or statute allowing same. 35. The SEC also relied upon what was described as a ?catch?all? provision of W. Va. Code to extend the ?ling deadline for his exploratory period report from October 1, 2015 to the end of the qualifying period, in this case February 2, 2015. See SEC Record at Ex. G. 36. The reliance on Section 13(0) to deem the late?filed exploratory reports timely was clearly erroneous as a matter of law. 37. W. Va. Code ?3?l2?l3(c) provides as follows, No later than two business days after the close of the qualifying period, a participating candidate or his or her ?nancial agent shall report to the Secretary of State on appropriate forms a summary of: (1) All exploratory contributions received and funds expended or obligated during the exploratory period together with 21 copies of any receipts not previously submitted for exploratory contributions; and (2) All qualifying contributions received and funds expended or obligated during the qualifying period together with COpies of any receipts not previously submitted for qualifying contributions. 38. The precursor section of W. Va. Code ?3?l2?l3, speci?cally section provides that ?[p]articipating candidates and certi?ed candidates shall comply with this section in addition to any other reporting required by this chapter.? (emphasis added). 39. ?[A]ny other reporting required by this chapter? includes the reporting required by Section 40. W. Va. Code therefore, applies only to the candidates ?ling of a ?nal report and does not affect, displace or otherwise impact the candidate?s obligation to file reports as required by the statute, including reports of exploratory contributions pursuant to Section 41. Thefmal reporting requirements of Section 13(0) cannot be read to eliminate the independent reporting requirements of Section 42. cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of the statute.? Feroleto Steel Co. v. Oughton(2012). 43. Applying W. Va. Code 3-12-13(c) as permitting candidates to file exploratory reports outside of the deadline established by W. Va. Code 3-12-8(d) would undermine the letter and intent of W. Va. Code 44. The failure of the Justice Benjamin campaign to comply with W. Va. Code 3? and CSR 146-5?113, and was not entitled to a hardship exemption to 22 belatedly file those reports, the decision to certify him was clearly erroneous as a matter of face and law. 45. The requirements relating to qualifying contributions must be satis?ed. 46. The statute creates a qualifying period ?during which participating candidates may raise and spend qualifying contributions in order to receive public campaign ?nancing.? See W. Va. Code 47. Any contributions accepted thereafter are deemed ?qualifying contributions? and are subject to the following limitations: A candidate may not accept more than one qualifying contribution from a single individual; (ii) A qualifying contribution may not be less than $1 nor more than $100; The contributions must be made by at least 500 registered voters; (iv) At least 10% of the total number of voters contributing must be registered to vote in each Congressional District; and (V) The participating candidate must collect at least $3 5,000 but not more than $50,000 in qualifying contributions. See W. Va. Code see also CSR l46?5?5.1. 48. Each qualifying contribution must be accompanied by a receipt, on forms provided by the SEC, which include the following: Printed name of the candidate; (ii) The signature of the person who collection the contribution; The contributor?s printed name, signature, street address and zip code; (iv) The amount of the contribution; The date of the contribution; (Vi) The Congressional District in which the contributor is registered to vote; 23 (vii) 1f contribution is $25 or more, the contributor?s phone number, occupation and name of employer; A statement above the contributor?s signature con?rming the contributor understands the purpose of the contribution is to assist the participating candidate in obtaining public campaign ?nance funds, the contribution was made without coercion, and the contributor has not been reimbursed, received or promised anything of value for making the contribution. See W. Va. Code see also CSR 49. Justice Benjamin?s qualifying period began on September 11, 2015 and ended on January 30, 2016. See W. Va. Code 50. During the qualifying period, Justice Benjamin was entitled to collect ?qualifying contributions,? subject to certain parameters set forth in W. Va. Code ?3~12~9 and CSR 146?5?5 et seq. and was also required to electronically file reports of such contributions with the Secretary of State. See W. Va. Code 51. The Secretary of State?s office represented to the SEC that Justice Benjamin 512 of the 583 contributions submitted by Justice Benjamin during the qualifying period satisfied the statutory requirements. See SEC Record at EX. (22-23). 52. Justice Benjamin submitted receipts for at least 192 contributions on February for contributions that were submitted electronically and did not have a handwritten signature, as is required by W. Va. Code See SEC Record at Ex. V. 53. The SEC had determined during its February 3, 2015 meeting (the previous day) that qualifying contributions submitted electronically without an accompanying handwritten signature were insufficient. See SEC Record at EX. (202:1-281 :21) 24 54. Without these 192 contributions, Justice Benjamin would not have the requisite 500 qualifying contributions which he was statutorily required to obtain pursuant to W. Va. Code 3-12-9(a) before the end of the qualifying period, February 2, 2016. 55. To be certi?ed under Article 12, a candidate must timely ?le an Application for Certi?cation and have ?obtained the required number and amount of qualifying contributions as required by section nine of [Article See W. Va. Code 56. Because Justice Benjamin did not obtain the required number of qualifying contributions as required by W. Va. Code the certi?cation of Benjamin was clearly erroneous and is hereby REVERSED. 5 7. Ms. Walker received copies from the Secretary of State?s of?ce of receipts of qualifying contributions on the last day of the qualifying period, February 2, 2016, that had been ?led by Benjamin late on February 1. 58. Ms. Walker ?led challenges to 365 of those receipts on February 3rd, including challenges to 192 of those qualifying contributions that were received by Benjamin electronically, but did not contain a handwritten signature. 5 9. Ms. Walker included a ?Qualifying Contribution Challenge Form? prescribed by the Secretary of State specifying the basis for each challenge. See SEC Record at Ex. U. 60. On the evening of February 3, 2016, the Secretary of State unilaterally decided that Walker was also required to provide ?evidence,? which was a copy of the actual receipt for each challenged contribution. See SEC Record at Ex. F. 25 61. Those same receipts, however, were in the custody, control and possession of the Secretary of State. Id?. 62. Because Ms. Walker did not also provide the SEC a copy of each receipt that was challenged, the SEC refused to entertain the merits of any of the challenges she brought on February 2nd. 63. This act of the SEC was and clearly erroneous and therefore is hereby REVERSED. 64. The Secretary of State has a statutory obligation under W. Va. Code 3?12?10(b) to review and verify that Benjamin?s qualifying contributions are legitimate and that they satisfy the statutory requirements set forth in W. Va. Code 3?12?9. 65. The SEC had ruled the day before that qualifying contributions received electronically must still be accompanied by a handwritten signature. 66. W. Va. Code provides that ?[a]ny person may challenge the validity of any contribution listed by a participating candidate by ?ling a written challenge with the State Election Commission setting forth any reason why the contribution should not be accepted as a qualifying contribution.? 67. Ms. Walker?s submission of the Qualifying Contribution Challenge Form complied with the statute. 68. W. Va. CSR ?l46?5?7.3 provides that ?[t]he challenger should attach any evidence, af?davits, or notarized statements to the form.? (emphasis added). 17 The Secretary of State was indispensany intertwined in the executive branch actions in carrying out the requirements of Code 43. The Secretary also was indispensany intertwined in the SEC hearings and challenges to the election laws procedures. 26 69. The Secretary of State?s interpretation of CSR ?146?5?7.3 as a mandatory obligation for Ms. Walker to not only ?le a written challenge, (which she did) but also to provide the SEC a copy of the underlying challenged receipt, a document that was in the custody, control and possession, was clearly erroneous as a matter of law. 70. The Secretary of State?s attempt to shift this burden to Ms. Walker?s campaign the night before the hearing was an unfair shifting or placing of responsibility. At the very least, the matter is not spoken to in any previous practice or the statute or rules in place for Finance Program challenges. 71. The decision to not entertain the merits of Ms. Walker?s February 3rd challenges is not and cannot be supported by the facts in this case. 72. This is particularly true considering that at least 192 of the qualifying contributions challenged by Ms. Walker should not have counted under the own interpretation of W. Va. Code ?3?12?9, had the merits been considered. RULING 1. Justice Benjamin and/or his campaign did not satisfy the requirements relating to ?ling an application for certi?cation pursuant to W. Va. CSR 1466?61 2. The Application for Certi?cation must state that the candidate: Has signed and filed a declaration of intent as required by section seven of this article; (ii) Has obtained the required number and amount of qualifying contributions as required by section nine of this article; Has complied with the contribution restrictions of this article; 27 8. The SEC, as a ?creature? of the state of West Virginia, is a state actor within the meaning of the Fourteenth Amendment and is held to that Amendment?s standards?. 9. The First Amendment?s ?fullest and most urgent application [is] to speech uttered during a campaign for political Off-106.20? 10. By certifying Justice Benjamin, notwithstanding his failure to meet the clear and unambiguous statutory requirements and deadlines, including the decision to entertain the merits of February 3 challenges for the reasons set forth above, the decision caused public campaign monies to be improperly injected in to the campaign for Supreme Court. 11. For all of the foregoing reasons, the decision to certify Benjamin as eligible to receive public campaign financing from the Program is hereby REVERSED. Conclusorv Ruling The certi?cation has prejudiced the substantial rights of Ms. Walker because the administrative ?ndings, conclusions, decisions and order are: in violation of constitutional and statutory provisions; (2) and in excess of the statutory authority; (3) were made upon unlaw?il procedures; (4) clearly wrong in view of the reliable, probative and substantial evidence on the whole record; and (5) are characterized by abuse of discretion or clearly unwarranted exercise of discretion. For these reasons, this case is REVERSED. A complete record has been made below and in this Court and, along with all exhibits is prepared for immediate review and all objections and exceptions to this Order and hereby preserved. 19 See us. Const. amend. XIV, 1; West Virginia State Bd. of Educ. v. Barnette, 319 us. 624, 637 (1943). The First Amendment right to freedom of speech also extends to the states. Gitiow v. New York, 268 US. 652, 666 (1925]. 20 Citizens United v. Fed. Election Comm?n, 558 U.S. 310, 339 (2010) (internal citations omitted). 29. The Clerk of this Court is ORDERED to send certi?ed copies of this ORDER to all counsel of record. Jonathan R. Marshall (WV Bar #1 05 80) Benjamin Bailey (WVSB No. 200) Maryl C. Sattler (WVSB #11733) Connselfor Resistor/idem Justice Benjamin BAILEY GLASSER, LLP 209 Capital Street Charleston, West Virginia 25301 Thomas C. Ryan (WVSB #9883) Counseifor Petitioner Walker Gates LLP 210 Sixth Avenue Pittsburgh, 15222 James R. Leslie, Esq. Jonathan T. Osborne, Esq. Of?ce of the West Virginia Attorney General State Capitol Building 1, Room Charleston, West Virginia 25305 Timothy Leach, Esq. West Virginia Secretary of State?s Of?ce 1900 Kanawha E. 1, 157-K Charleston, West Virginia 25305 Richard L. Gottlieb (WV Bar 1447) Spencer D. Elliott (WV Bar 8064) Counselfor Eiectz'ons Committee Lewis Glasser Casey Rollins, PLLC 300 Summers Street, Suite 700 PO Box 1746 Charleston, West Virginia 25326 -. Honorable Torfl?. Kaufman, Ag.ng Chiefludge