State Ex Rel. Affiliated Construction Trades Foundation v. Vieweg

520 S.E.2d 854 AF- ex rel. the

STATE West

FILIATED CONSTRUCTION TRADES

FOUNDATION, a Division of the West

Virginia Building and Construction Council, AFL-CIO,

Trades All Similarly Petitioner, Situated,

Those VIEWEG, Commissioner, F. Bu-

William Employment Programs,

reau of

Compensation Programs Performance

Council, Respondents.

No. 26364.

Supreme of Appeals Virginia. 29, 1999.

Submitted June July 14,

Decided Association; Grubb, Esq.,

Reclamation David Barret, Esq., John Group, WV Citizen Action Inc.; Henry Bowen, Esq., C. WV Business & Industrial Council.

Amici Poffenbarger, Brief: John Esq., Virginia Department Administration; West Perry Pauley, Esq., Virginia Depart- West Arts; ment of Education and the Susan Set- tle, Esq., Virginia Department West Resources; Health Phyllis and Human Car- ter, Esq., Virginia Department West of Mili- tary Safety; Affairs and Public Dale W. Steager, Esq., Virginia Department West Revenue; Anthony Halkias, Tax and Esq., G. Virginia Department West of Transportation; Adams, Jr., Esq., Virginia William E. West Bureau of Environment. Calwell, Esq., Stuart Skaggs, John H. PER CURIAM: Esq., Calwell, Law Offices of Stuart peti- This case is before the Court PLLC, Charleston, Virginia, Attorneys West prohibition peti- tion for writ filed for the Petitioner. tioner, The Affiliated Construction Trades Ramey, Esq., Ancil G. Thomas M. Wood- Foundation, Virginia a division of the West ward, Dickinson, Esq., Eugene Esq., L. Building Council, and Construction Trades WVBEP, Bureau, Legal Charleston, Services AFL-CIO, situated, all similarly those Virginia,

West Attorneys Vieweg. for against respondents, Vieweg, F. William D. Cleckley, Esq., Morgantown, Franklin Commissioner, Employment Bureau of Pro- Virginia, Attorney West Compensation for grams, Compensation Programs Per- Programs Performance Council. petitioner formance Council. The seeks prohibiting Vieweg writ Emeh, McClaugherty, Esq., John L. A.L. dismissing civil actions instituted Schulz, Esq., Mychal Esq., S. & Jackson Compensation Workers’ Division cer- Charleston, Kelly, Virginia, Attorneys West corporate tain entities of im- under theories for WV Chamber Commerce. puted liability delinquent com- Maroney, Esq., Thomas P. P. Thomas Ma- interest; pensation premiums, penalties and L.C., Charleston, roney, West Virginia, At- prohibiting having the Commissioner from torney for Labor AFL-CIO WV Federation. actions; further involvement in these Crandall, Pyles, Bradley Esq., Pyles, J. directing the Commissioner and the Turner, Logan, Virginia, Haviland & West Compensation Programs Performance Coun- Attorney for United Mine Amer- Workers of regulations to promulgate gov- cil rules and ica. erning litigation conduct commenced by the Commissioner. We issued a rule to Price, President, Karen deny petitioner show cause and now Association, Charleston, Manufacturers relief which it seeks. Virginia. Alen, Esq., Briefs: Amicus Barbara H. I. Steele, Esq., Attorney William S. General Jr., McGraw, Majestro, Anthony Darrell V. FACTS Turner, Esq., Esq., D. William Trial WV Lawyers Association; us, McClaugher- proceeding L. original John before Emch, ty, Schulz, Esq., Esq., Mychal A.L. pleadings, has the S. affidavits and exhib- Esq., Mining parties WV Coal Association & WV & its as well as several briefs standing.”4 emphasized glean good council From these

amicus curiae.1 following pursue facts. that the “should continue division entities, parties or in- from those collection Compensa- the Workers’ In 1996 and officers, cluding responsible accounts whose Division”] instituted civil [“the tion Division parties, in default and which entities companies remain assert- against several actions liability imputed for workers’ responsibility theories or officers direct premiums not been that had payment premium, interest means of companies those paid with whom entities penalty compensa- under the workers and/or Because of concerns about had contracted.2 .., applicable case law.”5 tion statutes actions, the progress of these civil Com- The council’s recommendation was unani- sought from the recently advice missioner council several reasons mous. The listed Programs Compensation Performance Coun- in- support the recommendation. These of (“the council”) concerning the continued cil cluded: prosecution of these actions.3 WHEREAS, in fact the initi- Division adopted council March the On against parties, certain ated civil actions recommending that the Resolution 30 Com- complex theories of founded certain “take as is deemed missioner such action precedence without in the law which are terminate, necessary or other- to withdraw compensation law field of workers West entity party named dismiss as wise states, Virginia, perhaps and in other liability, any, payment if whose for defendant liability parties for claiming of such the premium is not direct under the workers of premium obligations of other em- defaulted ... compensation laws and whose own ac- claiming parties ployers deemed to be in and further such with the Division is count specific parties, properties parties. pleadings to to third terms of In addition of the we also 1. responses Virgi- vary greatly from the West agreements received solicited the these within coal Virginia of the Chamber Commerce and West parties nia industry. who the The third mined coal on behalf of the re- Manufacturers Association the the are are defendants in civil actions which Virginia spondents, and the AFL-CIO West La- at issue. the Mine Workers of bor Federation and United Also, petitioner. on behalf of the America Compensation Programs 3. The Performance Attorney from Gen- received amicus curiae briefs pursuant Council was created to W.Va.Code McGraw, Jr., Virginia V. the West eral Darrell seq. purpose § et Its is to "ensure the 21A-3-1 Lawyers Virginia the Trial Association and West effective, financially opera- efficient and stable Group, petitioner, of Citizen Action behalf the compensation system unemployment tion of the Virginia & and the West Coal Association West system." the W.Va. and Mining Virginia & Reclamation Association and § Code 21A-3-1 The council com- Virginia & Industrial Council the West Business members, represent Also, prised of whom of nine four respondents. the on behalf of the West Administration, employees, represent employers, Virginia four of whom Department of the West Arts, Virginia Department of and the Education chair the and Commissioner who serves as of Virginia Department of Health and Hu- West council. Resources, Virginia Department West of man Military Safety, Virgi- Affairs and Public Commissioner, According to to 4. claims Revenue, Department Tax and the West nia Virginia be dismissed were coal owners and les- Department Transportation and standing good sees who were in with the Division Environment filed an Bureau of accounts but whose subcontractors on their own urging to with this Court us refuse amici brief compensation pre- meet their workers' failed to extraordinary requested. relief also The brief obligations. mium powers separation asks that we address the issue raised herein. Because this issue is not 23-2-4(a) (1995) According § 5. W.Va.Code necessary disposition to the we de- part: partic- appreciate cline review it. We ipation parties in this case. above-listed commissioner, conjunction with the arguments our deci- Their were considered in council, compensation programs performance sion. system to establish rule a for authorized determining and distribution the classification herein, pleadings filed the nature subject employers chap- to this into classes of these in which contracts is characterized ones ter, determining system rates [and] party which economic interest in owns the subject premium applicable employers actually taxes pays company mine coal another chapter[.] to this the coal or the coal subleased coal owners recognized or affiliated in to be related some manner ries under the workers compen- defaulting employers; law; to the sation WHEREAS, appears the amount WHEREAS, underground current owing premium approxi- defaulted due employers participating in the workers mates million and the interest and $95 compensation system paying through are penalties approximate thereon also $95 rating mechanism all claims accumulating million and further at the arising employers from the defaulted with month; per of million rate $3 liability premium, direct while all em- WHEREAS, litigation expenses outside good ployers standing in the workers million; date have totaled $3 compensation system bearing the ex- penses litigation; associated WHEREAS, may expect Division ongoing litigation expenses incur outside WHEREAS, long over period of time $30,000 per month in ongo- addition to the preceding filing litigation, ing but undetermined administrative and Division failed adequately pre- enforce managerial time and other resources com- payments mium directly re- those in support litigation; mitted sponsible therefor under the workers com- WHEREAS, representation agreement pensation law and due to enhanced data imposes with outside counsel on the Divi- systems, staffing, strength- increased and certain obligations pur- sion contractual for statutes, unlikely ened it is that- the envi- system of a at chase data fair market value permitted ronment which such failures may $700,000; which total and replicated; would be and WHEREAS, representation agreement WHEREAS, being the conclusion of the provides for the outside counsel be com- expenditure Council that further of Divi- pensated contingent on a fee basis in ac- support litigation sion funds in of founded 21A-2-6(17)(B), cord with Ch. which basis upon complex justified theories is not has been an obstacle to settlement of cer- expectation recovery of or need actions; pending tain of the precedent discourage parties for other WHEREAS, due to the nature of com- utilizing as a from subcontractors means plex upon of theories law which the claims compensation avoidance[.] for workers tax against parties only deemed to be liable on (Footnote added). founded,6 any a vicarious basis are esti- recovery wholly of specula- mate be May 20,1999, would public- On the Commissioner however, tive; anticipated it is high with a ly announced his decision to dismiss cases degree certainty of that a favorable trial against parties filed those which were any parties likely decision to will payment premium claimed to liable of appeal by party adversely result owing due taxes their contractors affected; and recovery pursue against and to continue to compensation workers’ subscribers their WHEREAS, pursued claims still be legal responsible under officers traditional defaulting employers those Thereafter, petitioner theories.7 filed the responsible directly their officers deemed subject payment prohibition of premium, penalty liable writ which the of this interest under collection traditional theo- case. CIO; petitioner respondents dispute

6. The and the and the President of the Business and viability of the theories which the civil Industry also Council. He states that on actions below are We not based. need address day, approved new same the council in order to issue decide case before us. Virgi- rate-making plan that assure that West will industry underground mining nia's coal bears response 7. The Commissioner notes in his compensation the burden of the workers’ fund sup- his decision to dismiss the lawsuits was past underground associated with the failure of Governor, ported by the the President of the mining pay subscribers to their workers' Senate, Speaker State gates, the House of Dele- compensation premiums. the President of the West AFL- 692 (1923) 273, 116 (prohibition does not S.E. 524

II. sheriffs); against county City ex rel. lie State DISCUSSION supra; v. Huntington, Hartigan Board of petitioners herein seek writ (1901) 14, Regents, 38 49 S.E. 698 W.Va. According to W.Va.Code prohibition. against the (prohibition does not lie Board of (1923), prohibition writ of § “[t]he 53-1-1 Regents professor); its removal of Unit right in all cases as a matter shall lie Corp. supra. ed States Steel power, usurpation when and abuse prohibi In the instant a writ jurisdiction of the sub inferior has court sought against compensa workers’ tion or, controversy, having ject such matter tion who is an administrative powers.” legitimate jurisdiction, exceeds its “ ‘ our official within the executive branch of prohi has writ of “[a] This Court said 23-l-l(a) § government. state W.Va.Code prevent simple abuse will not issue to bition (1999) provides that the Commissioner “has by a trial court. It will of discretion responsibility for the sole the administration jurisdiction the trial court no issue where system]. ... [the having jurisdiction legiti exceeds its or such powers exercise all the and duties [and] shall W.VaCode, Syl. pt. powers. 53-1-1.” mate in ... 21A- chapter [§ described Sencindiver, 2, rel. v. 160 State ex Peacher 2-1, seq.] ... of et this code.” W.Va.Code (1977).’ Syllabus W.Va. S.E.2d (1996) provides § 21A-2-6 Commis County rel. point ex McDowell Sher State alia, to, power supervise sioner has the inter Stephens, v. 192 W.Va. Dept. iff’s responsibilities of Bu fiscal affairs and (1994).” Syllabus Point State S.E.2d Employment Programs; any reau of invoke Center, Inc. rel. Area Medical ex Charleston special remedy for the enforcement Kaufman, S.E.2d 374 197 W.Va. orders; other exercise (1996). 1, Syllabus Point See also Crawford necessary to the administration of bureau 207, Taylor, 138 W.Va. 75 S.E.2d 370 v. clear, petitioner It business. does (1953). “[prohibition We have stated- that dismissing dispute, not the actions at unlawful of only lies in case of the exercise performing not issue the Commissioner was judicial of a functions. Acts mere ministeri judicial Rather, quasi-judicial a or function. al, administrative, or character do executive of the lawsuits constitutes a dismissal province.” Syllabus fall Point not within its As purely administrative function. we noted Com’rs, 4, Fleming County v. Kanawha 31 above, prohibition of never issues writ (1888). 608, Sylla 8 S.E. 267 also W.Va. See performing against administrative officials 2, City Huntington bus Point State ex rel. of purely Accordingly, administrative acts. we Lombardo, 671, 535 v. 149 W.Va. 143 S.E.2d remedy by prohibition hold that a does not (1965). pro This determined that Court has and, reason, proceeding lie in this for that tribunals, only judicial but hibition lies not to prohibition of will not writ be issued. possessing inferior ministerial tribunals to incidentally judicial powers petitioner sought that the as We note known prohibition petition quasi-judicial See v. writ of in its filed with tribunals. Wiseman Calvert, 303, (1950); however, During argument, 59 S.E.2d 445 this Court. oral 134 W.Va. Com’rs, Fayette County attempted request 25 relief a writ of Brazie v. W.Va. (1884); has, occasion, City Huntington ex mandamus. This 213 State rel. Court of Lombardo, prohibition supra. request This treated a for relief as a v. includes adminis mandamus, quasi-judicial petition for writ or having trative of vice tribunals versa, acting quasi-judicial capacity. if the so when See facts warranted. See State ex 98, Stokes, Corp. Ranger Corp. Lilly, 138 rel. Fuel v. 165 United States Steel v. W.Va. (1953). Lambert, 506, (1980); 267 Carr v. 76 474 Prohibition S.E.2d 435 179 W.Va. S.E.2d 277, (1988). lie, however, prevent 225 will not administra W.Va. 367 S.E.2d Accord- Wiseman, though petitioner supra (prohibition ingly, even did not tive action. alternative, against county originally plead in we will does not lie courts exercis judicial); petition as a ing power judicial proceed now to consider the quasi not or request for mandamus relief. Blankenship, rel. v. 93 W.Va. State ex Noce

693 essentially petitioner argues that the the action of administrative officer fiduciary has violated his obli- of exercise his discretion when such action is gation compensation arbitrary to the workers’ fund set capricious.” Syllabus, Beverly (1995).8 23-2-4(a)(2) Grill, § forth in Crow, W.Va.Code 214, Inc. v. 133 W.Va. 57 S.E.2d According petitioner, to the the fund current- (1949); Syllabus See also Point State 1, ly determined, “an actuarial discounted Payne rel. ex Board Education of Jef- deficit inof excess of billion.” Because $1.9 349, County, 135 W.Va. S.E.2d ferson originally the lawsuits at issue institut- were (1951)(“Mandamus does lie to control a approximately ed to collect two hundred mil- board of education in the exercise its fund, lion owed to dollars the dismissal of discretion, caprice, in the passion, absence injurious prove the lawsuits will sol- fraud, partiality, conduct, arbitrary ul- some vency of the entire compensation motive, or misapprehension terior of law Therefore, system. petitioner, concludes the board.”); part of such State ex rel. compel this Court should the Commissioner Morton, McLendon v. 162 W.Va. fiduciary obligation to fulfill his fund (1978); ex S.E.2d State rel. Withers v. by mandating prosecute that he the lawsuits County, Board Educ. Mason 153 W.Va. premiums. unpaid (1970); 172 S.E.2d 796 State ex rel. Miller, Board supra; Education v. State that, It is axiomatic law McNutt, rel. ex Waller Chems. v. 152 W.Va. A writ of will mandamus not issue unless (1968). 160 S.E.2d 170 now We will (1) legal three elements a clear coexist — apply principles these to the facts us. before

right petitioner sought; in the to the relief (2) agrees petitioner This part respondent on the thing petitioner fiduciary do the which the Commissioner has a obli seeks (3) compel; gation the absence of another to maintain the workers’ remedy. adequate fund. prior We have not hesitated on occa recognize fiduciary obligation sions Syllabus Point ex rel. v. City State Kucera up officers who oversee state funds set Wheeling, 153 W.Va. 170 S.E.2d 367 designated the benefit of classes individu purpose haveWe characterized the Also, als. exercised this Court’s as the writ enforcement of an estab power compel mandamus to executive right lished and the a enforcement of corre legislative officials to maintain fiscal imperative duty sponding imposed created or state in capacities soundness of funds their Bronaugh City law. See State ex rel. v. example, as For fiduciaries. Dadisman v. Parkersburg, 568, 148 W.Va. 136 783 S.E.2d Moore, 779, (1988), 181.W.Va. 384 S.E.2d 816 (1964). remedy a proper “Mandamus is to compelled we to Governor include his require performance of a nondiscretion- plan appropriation year for fiscal 1990-91 the ary duty by agencies governmental various aetuarially determined amounts of contribu 1, Syllabus or bodies.” Point ex rel. State employees tions earned state to the Public v. Allstate Insurance Co. Union Public Ser (PERS) Employees System District, 207, Retirement vice 151 W.Va. 151 S.E.2d 102 Fund. (1966); compelled We further the Senate See State ex rel. Board Education Miller, Speaker President v. of the House to intro 153 W.Va. 168 S.E.2d 820 (1969); respective County proposed duce their houses Delardas Court Monon galia budget County, requirements. meet 155 W.Va. bills to the PERS S.E.2d (1972); recently, in Deputy State ex rel Anderson v. Ed. More State rel. Sher Bd. ex Sims, Mingo Cty., 160 W.Va. 233 S.E.2d 703 Ass’n v. 204 W.Va. 513 S.E.2d iffs’ (1977). Finally, (1998), Syllabus “[m]andamus lies to control we held in Point 2: 23-2-4(a)(2) (1995): According § premium 8. to W.Va.Code taxes consistent with the mainte- determining premium compensation [for The rule rates of nance of a solvent fund workers’ applicable employers] taxes tent to shall consis- any may and the reduction of deficit that exist duty with of the commissioner and the keeping in such fund and in with their fiducia- compensation programs performance council ry obligations to the fund[.] possible to fix and maintain the lowest rates of payable to benefit un- fiduciary duty of has failed receive the Consolidated The compensation system respect ... due Board with der the worker’s Public Retirement any employer’s of its ob- pension funds and default employee public to the this, Board, ligations. light In as the includes the well to the assets entrusted contrary, complete lack evidence to the duty to monitor and evaluate affirmative may has Commissioner not legislative actions that we find the effect of assets, fiduciary duty to and to take his the workers’ affect funds breached such Also, including initiating compensation this Court necessary actions fund.9 while all necessary protect if fulfill proceedings can mandate that court solvency fiduciary duty, of such is powerless the fiscal actuarial to mandate his per- to be funds and assets. in which this is manner proper remedy formed. “Mandamus is 3, however, Syllabus Point we stated: In compel exercising tribunals and officers dis- possibility speculative The act, cretionary judicial powers when re- is transfer of funds assets do, they in violation of their refuse so fund to quired [PERS] ... trust duty, employed prescribe but it never ... retirement fund deputy sheriffs’ act, they shall or to correct what manner solvency may impair fiscal they Syllabus made.” Point errors not the transfer PERS trust fund does bar ex rel. Buxton v. O’Brien State legal mechanisms exist of assets where County, 97 County Court Mason W.Va. any impaired and correct that can detect area, 343, 125 S.E. 154 The one timely solvency in fashion. all, above where a court should exercise cau- Likewise, possibility in the instant deciding power. its tion when it is own of the civil actions at issue dismissal simply does The of this Court compensation impair the fund will every sitting judgment law- extend to pur- fulfill the fund unable to its and render performed discretionary ful act an execu- nothing speculation. than pose is more pursuant of his tive officer to the execution petitioner has not shown that responsibilities, regardless po- how or her fiduciary duty violated his the Commissioner litically unpopular that act be. Accord- compensation fund. to maintain the workers’ ingly, petitioners’ find no merit to the we represented to The Commissioner has argument concerning the Commissioner’s fi- implemented program was Court that obligation. duciary compensation the workers’ reduce specific petitioner’s has more deficit. The Commissioner also stated eligible injured complaint is that the Commissioner dis in an that no work affidavit However, fatally injured dependent worker missed certain civil actions. er Court, past abject Com- failure of administrators of the affidavit filed system missioner states: pay- to enforce workers’ That, May July by defaulting 1997 to be effective ment of such subcon- statutory powers law; in accord with its compensation tractors under the workers' duties and recommendation of the Com- by rate-making adopted plan, That the the missioner, unanimously approved the Council Council, employers assures that those plan premium rate-making premi- and base underground the coal class bear the cost of designed, among things, um other to rates employees claims of tractors; of the defaulted subcon- staggering and return the eliminate deficit system compensation fi- workers’ a sound by rate-making plan, adopted That the the basis, including across- nancial elimination of Council, objectives, having accomplishing is its prospective un- class subsidies on a basis for any subsidy from other business eliminated derground mining coal and certain other industry the classes to the benefit of un- industry; classes of business and contributing derground coal class and more plan, rate-making adopted by That the the $200 $2.2 than million reduce the billion Council, underground that assures the by deficit inherited the class, industry mining Virginia, in West as a current administration. The deficit reduction imposed bears entire on the work- the burden by program adopted in 1997 at the Council is compensation system by ers’ the failure of coal (5) years pro- least five ahead schedule premium obli- subcontractors to meet their by jected by gations, prior the administration^] as well as the burden caused the rationale, considering of have not been informed nor are we aware After this un- we are requires any regulation the statute able to the find Commissioner acted the prosecute fraud, to institute and caprice, passion, partiality, Commissioner arbi- of actions involved in case. The trarily, kinds this misap- with some ulterior motive or and dis- Commissioner’s to commence prehension the law. of litigation clearly discretionary. continue addition, petitioner In we note the raises Notably, litigation great the cost of specter of of conflict interest in the dis- weighing potential date necessitates val- missal charge, of the civil actions. This how- expense civil ue of the actions ever, wholly unsubstantiated and amounts prosecution. continued involves a their This speculation.10 than nothing more Accord- by judgment by call that made law must be reject ingly, petitioner’s plea we also may or the Commissioner. While this Court any remove the further agree may not with the Commissioner’s involvement in civil actions.11 action, simply course is not our decision Finally, petitioner requests also discretionary to make. nature perfor that we direct Commissioner and distinguishes at issue case from decision promulgate governing Dadisman mance council to rules where the duties of the executive litigation by the conduct of legislative by commenced officials mandated Again, we specifically were Commissioner. are aware of no provided for con- Also, requirement promulgation for the provision stitutional and statute. as above, regulations governing rules and petitioner prove lawful noted fails to exercise of an executive official’s discretion impairs the dismissal of the actions further ary Therefore, judgment. we decline di solvency Accordingly, of the fund. we promulgation rect the of such rules. find that Commissioner has failed to mandatory, nondiscretionary duty. perform summary, In we find that the dismissal Further, perfor- we have before us the as lawsuits such those involved this case council’s mance and the de- lies within discretion of Commissioner’s the Commission- Further, dismissing tailed rationale for the actions. er. find that the Commissioner’s Court, Respondent rights an affidavit pen- filed with this Com- That had vested in a following: states the fully missioner program with sion Island Creek was April, February, That from 1986 the time funded at the of such termination of em- Respondent employed by was Division ployment by the Coal purchase Island Creek’s Corporation through of Occidental Petroleum initially through annuity an unrelated insurance com- subsidiary its Coal Com- Island Creek receipt any pany, payments thereunder pany subsequently Occidental’s Island being wholly independent any profit or loss (hereinafter Corporation subsidiary Coal Creek subsequent incurred Island Creek to such Creek”); collectively "Island termination; among Respondent’s responsi- That duties and Respondent's appointment time of That at the management bilities with Island Creek were position of to the Commissioner and continu- compen- all insured and self-insured workers’ date, he neither to this had nor has programs employees sation Island Creek or other interest known financial in Occidental operated, several states where Island Creek Creek, Corporation in- Petroleum or Island including Virginia; cluding any interest which could he deemed to during Respondent’s at all times tenure That responsibilities his conflict with Commissioner!).] duties and thereafter, employment with Island Creek and Creek’s account Island with the Division was fully paid and deemed to be in Division petitioner argues 11. The also that W.Va.Code standing; good (1999) 2—5(f)(1) prohibits § the Commissioner Respondent’s employment with Island That 23— waiving and responsi- from interest owed to any did Creek not include duties or However, contractors, only relating this statute concerns fund. sub- bilities subcontractors mining operations Virgi- or contract nia, in fund who have defaulted in their scribers to the relating employees or of contrac- payment premiums. such The civil actions in subcontractors, or such tors if there were payments par- to collect from instant case seek during Respondent’s employment with Island ties be said to have defaulted on who cannot Creek; compensation payments. There- their workers’ Respondent employment with That terminated fore, applicable. we find this statute is not 1986; January, Creek in Island government branch of arbi- to tell the executive the civil actions was not dismissal of affairs. how conduct its trary capricious. Accordingly, because or legal duty part on clear there is no fulfilling apply- In our constitutional role of things peti- respondents which the to do law to ing the the facts well-established compel, deny we the writ of tioner seeks to irrelevant what we think of the this it is mandamus.12 viability dismissed of the lawsuits Com- Vieweg. It is what we

missioner irrelevant companies. It is irrelevant think III. we current and what think of the Governor who policies. his It is irrelevant we think is CONCLUSION ultimately responsible for deficit foregoing, deny the writ light of the philoso- fund. Our prohibition/mandamus. justice” phies principles on “fundamental Writ denied. think the Commissioner’s ac- whether we “pass irrele- tions the smell test” likewise MAYNARD, Justice, concurring: vant. All these considerations are for politicians, pundits armchair not for and right majority decision this case is judges. the correct it it reaches result and because by applying age-old principles of law. does so Finally, disappoints what about that is me proud of This can be this decision Court dissenting opinions filed the two in this case. fidelity to it exhibits a our common because public has Like much of what the heard on separa- law and our constitutional doctrine of matter, full specula- this the dissents are displays willingness powers. tion of It also tion, surmises, guesses, suspicions and dark fulfill its intended function Court analysis. legal The win- devoid of sound independence popular the clamor ners this case are not expediency opinion, political moralistic Council, Vieweg the Performance but editorializing long has been rhetoric which job of also the of law. The this is rule Court and law. short on facts according applicable to decide to the cases passion, prejudice par- law without really quite simple and This decision is tiality. Here, job. did its the Court Accord- straightforward. An executive officer exer- I ingly, concur. to do an act he and cised his discretion which to be in his advisors determined the State’s WORKMAN, Justice, concurring: best This executive officer set forth interest. Rotting Carp A legitimate doing reasons this detail his This me people act. did not like what entire case reminds of the old Some did, saying something they this “There’s rotten in executive officer ran to is, however, Well, definitely is help. Court The fact that Denmark.” there some- Virginia, telling thing this no business rotten in and I am Court has execu- outraged only by aspects tive do under circum- of the histo- officer what to these not ry permits just people of this that the record us to stances because some would ease into, get perhaps differently. done I reiterate our teeth but even more so that there authority agendas that simply empowering hidden smell1 to the no this Court various attorney general Accordingly, this we decline consider 12. We note that the filed a brief case. response to an order of them. this case in attorney general why directing explain he majority represented One states the State of West of the dissenters "the not brief, readily apparent In this Attor- seems to what must be so civil actions below. miss Virginians just ney asks us to Manchin v. to thousands of West deal General overrule —this pass majority Browning, doesn’t the smell test.” did 170 W.Va. 296 S.E.2d 909 21A-2-6(17) (1982), Unfortunately, § W.Va.Code not miss whether this find the smell. and/or properly passes the test” These issues are series of transactions "smell unconstitutional. necessary are not not the standard which Court deter- before this Court and Also, extraordinary disposition grant relief in case. affect mines whether to of this these issues parties executive officers who not mandamus. other

697 [ejxercise heavens, get any legal special remedy..., high but which we can’t our or any power necessary into on this record. Because of the other to standardize ad- teeth ministration, expedite business, bureau development, factual am limited in lack of I ability pull assure the establishment of fair my back the curtains so as to rules service])]” promote efficiency conduct, light upon the the plans, cast shrouded 23-l-l(a) (1996) pro- § Virginia Code process surrounding and actions the entire Indeed, vides that sole Commissioner “has the inception to date. a review of documents, responsibility for the this administration of which are the available most of except chapter for such en- requested by matters as are being here as a result of Court, compensation programs per- trusted to the suggests anybody who is not confused, Virginia formance council....” West Code really doesn’t understand what’s (1996) § 21A-2-1 further Nevertheless, defines the Com- going sparse on. even role, indicating missioner’s not Commis- documentation available casts an odor appointed by governor, sioner be carp. “shall rotting that of a dead and This unlike by and with the advice and consent of opinion will neither win friends nor influence Senate, subject and shall hold his office people philosophical on either side of the pleasure aisle, governor.” the will and of the things but these are that need to be Thus, duties, powers, the Commissioner’s said. broadly and limitations have been delineated I majority That have voted with the should by exclusively statute and have been created opinion taken as an dismissal that the by statute. underlying or even lawsuits was a wise A mandate Court the Commis- proper course of action.2 Nor it be should approval obtain sioner must court for dis- agreement anything taken as that ei- missals would improper of civil actions be an ther of last two or the Commissioners legislative intrusion this Court into Council in this Performance have done entire arena. are not free “Courts to read into the Moreover, the issue. decision of ” language what is not there.... rel. State ex prohibition that neither nor mandamus is Meadows, 20, 24, Frazier v. 454 W.Va. appropriate should not be as limit- construed (1994). S.E.2d possibilities bringing a lawsuit for province fiduciary It is not the of courts revise responsibility, breach violations government Legislature supply of the open requirements, the work violations what, requirements, potential opinion, of ethics their are omissions of or other statutory fact, provisions necessary to of action. In I shall make a causes as make clear, system plan expedient. I believe a full wise and If that there should be could one case it done complete exposition factual be done could be of what occurred all, legisla- chips they that the where courts would become here so can fall tribunals, tive, judicial, may. a result as well positively forbidden Constitution join majority reason I that the the state. absolutely prohibi- law clear that neither In Application re License to Practice mandamus order tion nor is available to Law, 67 W.Va. 67 S.E. 604-05 Commissioner dismiss the lawsuits. The animal, created, statutory is a Commissioner molded, Merritt, by legislative au- Boyd maintained W.Va. (1986), thority. explained § 21A-2-6 that “[t]his Code S.E.2d (1996) provides superlegislature, “is not sit as a com- Court does social, pass political, and- the executive administrative head the missioned to economic, duty per- bureau and has the to... or scientific merits of statutes subjects general supervision..., [sjupervise taining proper legislation. It is exercise [ijnvoke facts, responsibilities..., legislature fiscal affairs and to consider theory substantially legal ruling gotten lawsuits were a clear on the 2. These all based on test very prevailed, theory. recovery, pursued and if the same It would have been he contingency simple brought for the one other under a fee contract. Commissioner to have claims (if call embody one can be so charitable as to policy that ments” policy, and establish that) initially previ- at 108. entered into at them legislation.” Id. S.E.2d shocking Ed- to the con- Randolph County ous administration3 Similarly, in Board of administration,4 Adams, But current 467 S.E.2d science. v. 196 W.Va. ucation (1995), absurd now uses the contract for these which we stated: expenses and and excessive fees legitimate constitu acting within its When already spent million state funds $3$ judicial given to sphere, deference tional primary one of bases thereunder Virginia Legislature both lawsuits, seeking the fails to dismissal has confirmed. bodies been administrative point out that these contracts are cancellable Tax Appalachian Power Co. State See days Why thirty the State notice. Va., 573, 466 S.E.2d Dept. 195 W.Va. of W. cancel contracts didn’t the Commissioner deferring to practice The through pursue these lawsuits either rationally legislative is a enactments based Office, Attorney through in-house General’s judicial restraint. paradigm of counsel, through contingency contracts 165. Id. at at S.E.2d lawyers, any private of which would with newspaper recently ran an edito- local One expenses have cost the state reasonable that rial to effect Commissioner recovery? Only there when re- unless was drop I the lawsuits. should not be allowed to covery contingency was would the fees had intrigued by newspaper’s comment was be taken the sums recovered. to complex legal details that “We leave the fact, that the for the seems outcome Court, but, they Supreme hope the State is rather like that of Alice’s situation State prevent to the lawsuits’ find a sound reason” nothing. Wonderland-less or Well, is in details. the devil dismissal. complex legal fact is “details” that tea,’ the Hare said ‘Take some more March separation pow- involve the doctrine Alice, earnestly. very history precedent, of legal a ers and whole nothing yet,’ replied ‘I’ve had Alice just they that can to me are not niceties tone, I can’t offended ‘so take more.’

be overlooked. less,’ you ‘You mean can’t take said the easy very Hatter: more than ‘it’s take Fiduciary Duty nothing.’ majority I concur there is Here, nothing got less or while State fiduciary part duty on the of the Commis- lawyers got proverb more. The old sioner and members of the Performance lawyer’s opinion nothing is worth unless protect integrity Council the financial has maximum paid for been extended Compensation Fund. Because the Workers absurdity paid case. The State duty, fiduciary there is a the Petitioners $1,891,5005 legal fees of to the firms of Fre fiduciary right bring a have the breach of deking Fredeking Galloway Associ & & and the suit Commissioner “litigation ates for recommendations.” addressing Performance Council. Before however, depth, there possibility in more A brief of how came recitation the State need are other matters that to be addressed. nearly thoughts of pay million for the $2 Fredeking Galloway instructive. Down the Drain $3%Million providing employment full process of status lawyers appears The waste million of for several to have been $3% sorry ought taxpayers money saga initiated from R.R. solicitation letter II, Kozak, closely. arrange- Fredeking, H. Director of to be examined These “fee John Underwood, Compen- Caperton, 3.Governor Gaston Workers 4. Governor Cecil Commissioner, Richardson, Vieweg and the Performance Council. sation Andrew Council, had the Performance which has taxpayers The entire tab to the totals almost continuously membership same creation since its $3)4 million, litigation expenses are when other in 1993. included. Division, State, Employ- require- including Bureau of laws of this Legal Services pay premium Fredeking, Mr. in a letter ments to taxes due to Work- Programs. ment 7, 1995, Compensation er’s Fund and remain viable that he April dated announced appear entities. Other schemes also to to meet with Mr. and then would like Kozak have used. plan a been Richardson to Commissioner discuss delinquent premiums owed the to collect Richardson that as Commissioner indicated industry. Fredeking by the coal Mr. Fund part capacity fiduciary of his on behalf of the pitched “comprehensive his access to a coal Fund, pursue to he wanted actions ownership and control database” available to employers. larger these legally to identify links entitles who be Commissioner Richardson indicated that payment responsible for to a addition litigation he Mr. L. had discussed with employer. shortly appears It nominal that Galloway, Esquire, Thomas firm of the law thereafter, Fredeking Mr. Kozak and Mr. Galloway Washington, & Associates of D.C. 12, May met discussed contracts. and On Galloway It that Mr. com- was stated had Fredeking proposed Mr. submitted a piled proprietary an extensive database to agreement Commissioner Richardson for workings information on the inner of the delinquent com- the collection worker’s industry that the avail- and database was not pensation accounts due from the coal indus- anywhere country. able else Commis- try. sought sioner Richardson consideration approval appointment and of the Gal- of Mr. By Richard- June Commissioner loway attorneys special and other as assis- Attorney son have contacted General must generals attorney tant liti- work on these McGraw, Jr., regarding Darrell the mat- V. gation fee contingency matters use of a 8, 1995, a ter. In letter dated June mechanism. Richardson, Depu- Managing Commissioner Attorney ty McHenry General Deborah L. July Fredeking On Mr. forwarded meeting that a re- indicated was scheduled contingent proposal Fredeking fee of Mr. garding unpaid collection worker’s Galloway and Mr. to collect the Worker’s premiums. McHenry compensation Ms. 31, 1995, Compensation July Fund debt. On requested Attorney noted that General Attorney appointed General at- several extent outlining written documentation torneys including Galloway special Mr. as respect unpaid pre- problem attorneys general litigation assistant including special legal theories miums prosecution action team for the of causes of proposal functional involved and as unpaid to recover worker’s structure, goals objectives regarding premiums. Interestingly, appointment Finally, McHenry work. Ms. re- collections provided letter that: quested Attorney be ad- General contemplated you all it is will advance who had been vised as to involved expenses necessary to commence development proposal. of the Bureau actions. Your maintain these fee shall subject approval of the court 12, 1995, Richard- On June proper shall reasonable not exceed Attorney stat- son wrote General McGraw customary equal fee rate which is to one- ing that he had concluded (33-1/3%) recovery third for those cases probability that there is reasonable any which filed circuit court and larger employers the min- several of the any premiums fee exceed 20% of not to extracting industry engaged eral have recovered due to which are adminis- practice pattern and of behavior to circum- which is undertaken. trative action payment justly vent the due Apparently, appointment letter was particular, the Fund. taxes to op- satisfactory. documentation, employers as well reason to believe that these time, through newspaper public as accounts at the erated mines other facilities companies vastly disagreement Attor- captive through un- indicate a between the ney companies knowing such and Commissioner Richardson capitalized der General lawyers regarding appointed to be companies operate could not under the way receive a flat fee of & Associates would appointment. Mr. Gallo- well as the terms $5,200 attorney computer related under the fee use way appointment declined made, Attorney as to by the General. for each recommendation work terms outlined August the Attor- employer, regarding whether adminis- During the month each requested information so ney judicial should be taken General action trative and/or recover the de- attempting to project the An against one or more entities. addendum proceed. linquencies could provided for a reduced agreement to the $2,340 legal for each recommendation fee 1995, 21, Attorney the Gener- August On date, Fredeking the in 1998. To made Richard- informed Commissioner al’s Office $1,891,500 Galloway paid for firms have been that son Attorney’s fees of their recommendations. attorney’s paid be the fees to none of absolutely outrageous represent an this sort the the monies received for paid from “boondoggle.”6 Fund, any other State fund. or from Rather, separately award- said fees will be Moreover, agreement provided for a delinquent by the Court ed court or contingent approved to be fee paid delinquent employers to be judge in an amount no law an administrative fund, not from their delin- employers’ own recovery. This was less than 20% of the required premiums. All fees are quent every litigation for addition the $5200 customary, approved the Court Further, unbelievably, memorandum! proper. reasonable agreed pay for consul- Bureau the cost agreement was appears that no It screening, coding, storage and re- for tation Attorney General McGraw reached between transcripts; micro- trieval of documents and Decem- Richardson. On and Commissioner readers; costs; mailing reproduction film 1995, 29, Attorney General’s Office ber costs; costs; out- telephone paralegals based impropriety Mr. Kozak of the informed Virginia; consulting experts; Lex- side West any legal approving contract for the Bureau and, Research; ownership is and Westlaw the basis that the Bureau had services on tracking computer re- and control and other authority to enter into a contract no $5,000 per expenses not to exceed lated legal Apparently, the administra- services. Interestingly, appears that it month. legislature promptly went to the seek- tion one-year been had a term and has contract statutory authority bypassing ing change annually by virtue of a order renewed hiring Attorney and for outside General through of West approved the State this matter. Pursuant to the counsel on by vir- Purchasing appears It Division. Bill enrolled committee substitute for House rep- purchase order no. BEP979 the tue of 7, 1996, 4862, effective March W.Va.Code agreement extended for an resentation was (17), § 21A-2-6 was amended to authorize 1999, year July beginning additional Employ- the Commissioner of the Bureau ending 2000. The Bureau Division June Programs, approval of the ment with the Burdette, Head, View- Ed and Commissioner Programs Compensation Performance Coun- justification eg signed for the continua- cil, Attorney to retain counsel outside litigation project April tion of the coal General’s Office. Now, years inception, some 1999. four after lighter than two months Compensation Programs Performance million and less $3.4 representation agree- immediately published attorney renewing the after Council ment, Vieweg, capacity approved his solicitation and on June Fund, (including fiduciary of the abandons this hiring attorneys Mr. Gallo- as the major big represent project respect with to the way Fredeking) and Mr. rep- companies. are left to wonder what the litigation. Bureau in the collections We agreement has achieved. The record does not provided that the law State resentation payment whether the of over Fredeking Fredeking $1.8 & reflect firms Gallo- State when the to coordinate Indeed, that these for rec- to the appears payments from the Attor- General’s ar- State's services ommendations bolster stripped Attorney damage immense. gument General for harm ney potential representations million for “recommendations” resulted in made to this Court are accu- collection, rate, through pro- an administrative these individuals do not consult with the otherwise, penny organizations they represent. cess or of one of worker’s labor If this is case, compensation premiums. legislature should reconsider whether the Performance Council is function- Backroom Deals event, as intended. the fact that truly these individuals represented have not recognize I legislative While matters viewpoints organiza- of their affiliated generally negotiation compro- involve tions leads to an promotes environment that by competing groups, mise interest a review “brokered matter, deals” that are then “broken.” together of the record provided This Court has been arguments oral with the of this have left me with shattered put remnants and is unable to impression something the clear is “rot- pieces together in a proceeding where ten in Denmark.” there This entire matter is a development. has been no factual agendas. landmine of hidden While there is agreement no written regarding a “deal”

whereby industry agreed the coal to an in- Jus, (or Ubi Ibi Every Remedium For crease rates return for the Wrong, Remedy) There is a issue, of dismissal the lawsuits at all entities students, law, As law we learn that in the gingerly involved dance around this issue of a every wrong remedy. for there is a Because deal. properly this Court give by cannot relief drop The Performance Council vote to 25 prohibition mandamus, or we cannot untan- major companies coal from the lawsuits seek- gle the web that has been woven. ing unpaid premiums collect the and inter- fiduciary The duties of the Commissioner simultaneously est came almost with Gover- great magnitude, they are of are not signing nor Cecil Underwood’s of a new judicial diminished our restraint in this Compensation making Worker’s Fund Bill By declining grant requested case. the injured qualify easier for per- workers to for mandamus, disregard fiduciary we do not the disability manent total benefits. It is ex- duty; simply find that the existence of tremely troubling that the Performance fiduciary duty the in the context of the rec- Council discussed the decision to dismiss the presently compel ord before us does not lawsuits in a secret letting executive session7 conclusion that the Commissioner had a man- large companies few off-the-hook from datory, non-discretionary duty to continue to huge potential liabilities after closed-door pursue underlying lawsuits. meetings, regularly while suing small busi- people proprietors. ness and sole Such ac- Although previously this Court has not appears tion open, to violate all notions of precisely identified the elements of a cause of fair government and accessible and leaves fiduciary duty, action for a breach of a courts public operation with no confidence in the have held that the elements of such a cause government. of fiduciary of action are the existence of the breach, relationship, damage proxi- its Council

Performance mately caused that breach. Pierce representatives The conduct of the Lyman,, Cal.App.4th Cal.Rptr.2d labor (1991). on the troubling. Performance Council is If “A cause of action for Although recently 7. public issue of the closed-door We discus addressed whether a meet Act, placed required open sion was not raised in a manner which otherwise to he under the us, properly parties argued the issue agency attorney before could be closed because an was Commission, propriety closing present County of the Performance Council in Peters v. Wood meeting on March 1999. Discussions re 205 W.Va. 519 S.E.2d. 179 In Pe garding pending litigation attorney privileged without an ters we held that communications be present appear proper subjects public body subject do not to be tween a Act to the and its Act, pursuant Open attorney closed exempted long executive sessions to the are from the as as Act, Proceedings Virginia statutory requirements Governmental of the Act are met. (1993 5, Peters, 482-83, Supp.1998) Syl. §§ Code (hereinafter 6-9A-1 to 7 Pt. 205 W.Va. at "Act”). § See W. Va.Code 6-9A- S.E.2d. at 180-81. legislative, proof “[t]he fiduciary duty requires the state constitution

breach of judicial trust, departments shall be executive fraud, an action outside or breach distinct, that neither shall authority.” separate so fiduciary’s the limits of powers properly belonging to Cush, 205 exercise 953 F.2d Estate Gerdes v. simplistic As (5th Cir.1992). others[.]” either they may appear, few words latter action Thus, may well a cause of there kept reality complex formula that duty. fiduciary alleged breach of intact government of this state since its complete and entail a a lawsuit would Such founding in 1863. at the heart thorough exposition the facts Separation The of Powers Clause is not people issue. this self-executing. Standing alone doctrine They to find out the facts. deserve deserve Separation has no force effect. admin- why present and former how given life each branch of mil- Powers Clause spent three and one-half istrations exclusively working within its nothing, government money tax of their lion dollars encroaching and not constitutional domain meetings deals closed-door and what and/or legitimate powers other at the heart of held to decide issues were government. This is essence branch dispute. longevity In the of the doctrine. case at really these dismiss Will the Commissioner petitioners would have hand in explanation further view without lawsuits bright the obliterate time-honored lines be- fiduciary duty? of this government. the of our state tween branches lawsuit(s) does, will a for breach If he majority on has refused to A this Court duty brought against the Com- fiduciary be the constitution. violate missioner and Performance Council? case, brought my judgment, pro- in In this really people Will hibition, record, with no factual little to know the truth? simple point on a of executive discre- turned authority being by The exercised tion. Stay tuned. challenged by petition- respondents and discretionary authority long so as that ers is Justice, DAVIS, concurring: discretion is exercised within bounds of Separation of Powers Clause highest law and in with the accordance Granting Prohibits the Relief duty. fiduciary Accordingly, on the limited Sought in this Case available, I cannot conclude that the record In order for this Court to have taken drop decision of commissioner petitioners, steps urged we would of his lawsuits constituted a violation fiducia- destroy divi- have had to the constitutional ry duty. simply appropriate This issue is sion of between the three branches prohi- in for issuance of writ mandamus any In government. spite emotional state statute, pro- No rule or constitutional bition. appeal engendered by the dis- placed limitation on vision direct case, in nor will it senters this is not now respondents’ authority drop the civil suits province of to abolish ever be the this Court question. recognized in This Court has separation powers the clear that is etched “ act an is committed executive ‘[w]hen in guaranteed our state constitution and discretion, the exercise of that discretion the federal constitution. is not within the constitutional bounds sub- ject in ex rel. Lam- to the control or review of courts. This Court observed State 809, 802, 490 would Stephens, bert v. 200 To interfere that discretion be a W.Va. (1997) 891, part separation pow- 898 of our of the “[a]s S.E.2d violation doctrine ” democracy Michael, constitutional on both the national State ex rel. Robinson v. 166 ers.’ level, principle 674 n. 820 n. and state ascribe to the W.Va. S.E.2d (1981), quoting equal Agency that there shall be three branches Public Defender (Alaska Court, executive, judi- government legislative, Superior 534 P.2d — 1975). V, firmly § It is in cial.” rooted Article

7Q3 clearly days leaving pause I need to for a moment to Three before office in path illustrate the incorrectness of the former Governor settled State of West bringing Virginia’s in petitioners against chose to take this lawsuit Pittston Coal for its relinquished culpability disaster, If action. this Court had its in the Buffalo Creek uphold Separation thereby depriving of Powers people Virgi- of West litiga- against nia day Clause this where would the of their court coal com- examples: pany public a few betrayed tion end? Here are but that had trust and ignored 1) obligations society.1 its State tax commissioners often institute amnesty programs tax anas alternative No lives were in the cases presently lost at litigation to commencement of to collect Court, issue before but May delinquent taxes. this Court re- Vieweg’s drop decision to these lawsuits quire, through the issuance of a rule against companies deprives various coal prohibition, the Commissioner of the court, day just citizens of surely their as Virginia Department of Tax and just unfairly did as the decision of a explain Revenue to his reasons for im- years ago. former Governor over plementing amnesty program, a tax pursuing against context, rather than suit indi- special concern to me is taxpayers? vidual hanging the dark over the cloud whole trans- Vieweg, action. Commissioner as he William 2) attorney general has decided Court, tells his affidavit to this is the self- against negotiating separate settle- who, Vieweg years William same ten companies ments tobacco unlike allegedly improper practices which the were in favor several other states of continu- occurring, employed was one of the defen- global part to be settlement. dants, Coal, “manag[er] as a Island Creek subject taxpayer a citizen Can all insured and self-insured attorney general to suit based programs Employees....”2 for Island Creek allegation that a more favorable com- promise through sepa- can be obtained And troubling this is one of the most as- negotiations? rate me, pects majority this case to The dissenters in this ease have not even readily appar- seems to what be so miss must paused to consider the utter chaos that would Virginians ent to thousands West —this obey if ensue this Court abdicated its just deal smell pass doesn’t test. Even if Separation of Clause. Powers With their agree I were to that the Commissioner had Therefore, agree. I position cannot I concur. right drop these suits —and I don’t—I would about the still be concerned conflict of McGRAW, Justice, dissenting: public’s erode the interest. Such conflicts Wrong, wrong, wrong! government.3 confidence in Disaster, McCarthy, Sunday bridges, power, telephone 1. Jack A Man-made water lines Mail, (marking Gazette county Feb. the 25th destroyed, were and the road and the anniversary tragedy). of the The article also valley’s servicing rail lines coal mines were described the event: severely damaged. refuse, high Water and coal 30 feet and 550 indelible The flood also left an scar on the across, through feet its burst hillside location ways, damaged many survivors. In all West rain, days cascading after two more than 15 Virginians. Logan County. miles down Buffalo Creek hour, Moving per at 5 miles the water took Editorial, Comp, 2. See also Workers’ Court Should about three out a hours to wash succession of Gazette, Dump Vieweg, July Charleston small coal towns and reach confluence of tenure, Vieweg’s (noting during that contract Guyandotte Buffalo Creek and the River at up $47.5 "ran miners for Island Creek million in Man. delinquencies, largest by any amount owed 1,000, people, injured killed 125 disaster [sued]”). company 4,000 and left Five hundred and homeless. seven houses were or demolished 44 mo- lost issue, 3. Some debated this in the scholars have destroyed bile homes were another 273 houses legisla- members of the context of the actions of severely nearly damaged, were while 663 hous- argument government, but the tive branch of varying degrees. damage es suffered addition, businesses, 1,000 vehicles, applies as well the executive: lawyers, rates figured Fund must have into those My grandparents, who were not farmers, deficit, huge not have understood the that there was at least a but fact a compensation of our complexities workers’ quarter a billion which comes suits, law, legal underpinnings of these or the companies being payment-dodging sued. coal expression the current state of had an but say, though appar- That there is even affairs, they it is not for even knew that a whereby ently “only” new now some scheme guard to “let the fox the hen wise decision million, companies will pay coal the $250 back house.” debts, up piled over 20 those bad which grave concern is the fun- Another issue impact had years, have on rates of unfairness of View- damental Commissioner every employer every and the benefits of paying- It decision. shifts the burden ers affidavit, injured employee. Vieweg, In his $250,000,000 company debt to coal some states that: employers Virginia, who the other 20th, May 1997 ... the Council unani- On engaged charades to avoid have never mously approved rate-making premium premi- paying their designed, plan base rates proudly pointed ums. As so out among things, stagger- other Commerce, to eliminate of all Vir- 97% Chamber businesses, ing deficit and the workers’ and “the return com- ginia business small system pensation is “the voice of business West to a sound financial ba- Chamber” truly represents sis, If Virginia.” including the Chamber elimination of across-class cleaners, feelings dry res- 97% the prospective on a basis for subsidies under- taurants, stores, convenience and other small ground mining coal and certain other businesses, simply I that am incredulous this industry; classes of business crying demanding “voice” is not out and that added). means, (Emphasis prospective Since Vieweg take these suits Commissioner only,” “in future I what don’t see other, Because it is indeed the honest trial. says about what over the has occurred last 25 Virginia, including businesses West those years. company’s employ default- coal did not miners, contract who must bear cost. Also, important I feel it to note subject historically, the Fund has been Vieweg maintains winds,' changing political govern- like all of plan recoup will new Division $200 prevent nothing There is ment. would surcharge imposing million to $250 Fund, recovery in the event of a massive companies, plan, and this there- other companies, from the defendant coal fore, only companies will means be eventually lowering premiums catego- in all responsible paying back the debt. Be- political pressure ries. Indeed from all the yond continuing the unfairness to those coal employers probably other would paid way, demand companies which their own this change, a if in If such such a reduction the argument makes no to me. the sense disingenuous to Compensation deci- deficit were occur. So it is Fund made Workers’ years argue that coal forever over the last 10 to 15 about to has been “walled sions Reducing raising employers reducing by for other off.” billion deficit rates $1.9 (which did) benefits, eventually it then the million would have to benefit $250 legislators they subjecting to have Admonitions officeholders to the constraints of an obligation appearance impropriety disciplinary ethical to avoid actions that could of stan- public naturally purpose heighten disapproval fit into their result in dard: its is "to demo- congressional representativeness of discussions of ethics. One cratic order to ensure —in codes, all, goals perceive reality way public central of the after is to ethics officials public legislative public promote are that the confidence does and sensitive to norms thereby legitimacy branch and to reinforce the harbors.” Levin, put government. point Congressional The can be Ronald M. Ethics and same Con- Mistrust, Advocacy loyalty responsibility: Age terms of institutional stituent in an 95 Mich. 1, (1996) Stark, by unseemly (quoting behavior members makes L.Rev. 99-100 Andrew a few it Impropriety colleagues Appearance their harder for their to do own The of Official Crime, 326, Stark, jobs. Concept Professor in an illuminat- 105 Ethics Andrew Political 349 (1995)). ing analysis, explained has the rationale for

705 state, employers employees in all the this The trend in Court has this been to en- including large scope Affiliated Trades of mandamus. Construction State ex County rel. Smoleski v. Court employees employ- and the Hancock Foundation 307, County, 153 168 S.E.2d represents. W.Va. 521 ers (1969), especially where there an urgent majority glosses the fact over that we question public policy or where there is talking quarter about of a one billion adjudication delaying no reason for of the place perspective, To dollars. accord- by highest issue court of the State. figures supplied to the Governor for Miller, 563, 566, Walls v. 162 W.Va. 30, 1998, year ending fiscal June (footnote (1978) omitted).5 S.E.2d amount fees entire of tuition and received past, In the we not grant hesitated to higher institutions education West Vir- extraordinary relief where an administrative $194,834,000.4 ginia totaled I can’t see official litigation to initiate refused on every every family attending child example, behalf of the State. For in State ex college in like would to donate Naum, Ginsberg rel. 173 W.Va. year’s a worth of tuition fees to coal (1984), county S.E.2d 454 held that companies. prosecutor nondiscretionary duty had a to majority simply incorrect. This prosecute welfare cases. I posit fraud would grant should Writ Mandamus Vieweg duty that Commissioner has a similar compelling Vieweg proceed prosecute at actions issue lawsuits, with at until such a least time as fiduciary duty based protect his readily the likelihood of recover more integrity assets and financial of the Fund. essentially determined. To not would do so Moore, See Dadisman v. 181 W.Va. away very reasonably throw chance at an (1989) (awarding S.E.2d 816 mandamus extremely large recovery, great and do a alia, upon, fiduciary based inter breach of people disservice of the State of West fund). duty to administer retirement Virginia. procedures We have our defined Furthermore, in this case we are not con- regarding mandamus: point cerned with a of law in mere routine “A writ of mandamus will issue unless litigation, civil with but rather the lives and (1) three elements a clear coexist — living, limbs of countless thousands of right in petitioner sought; relief who, beings breathing, along human (2) legal duty part respondent families, their have suffered loss as a result yrhich thing petitioner do seeks alleged of the conduct defendants (3) compel; the absence of another Legislature these cases. The intended that adequate remedy.” Syllabus Point State suffering stop, this needless should and it is Wheeling, ex rel. Kucera v. City legislative purpose our to effect the 538, 170 W.Va. S.E.2d 367 accomplish such means as will that end. best pt. Syl. Virginia Reg’l State ex rel. West Affiliated Trades Construction Foundation Facility Jail Correctional Auth. v. legal right. West has a clear Affiliated Construc- Bd., Foundation, Inv. Virginia Management employer tion as an W.Va. Trades that fund, pays premiums the S.E.2d 130 We have not into has been af- deficit, always application past by specifi- been so timid in the of fected in the the and our cally by missing the mil- impact constitutional derived mandamus: $250 families, who, Virginia along Comprehensive beings with 4. Annual Financial man their Report, Ending Year June 1998 at 19. loss since time out of suffered needless inevitably industry appears mind in an which Walls, compelled We felt to note which con- to suck the from the miner as he life's blood rules, safety application cerned of mine Legislature takes the coal from the earth. The industry always has not been kind to its suffering intended that needless should workers: duty stop, legislative and to effect the it is our Furthermore, in this case are not con- accomplish purpose as will such means best point cerned with of law in a mere routine civil that end. litigation, but rather the lives and limbs of Walls, 251 S.E.2d at 496. 162 W.Va. at living, breathing, countless thousands of hu- adequate rem- paying, petitioner has no other question, paid, and lion argue mismanagement edy. might higher premiums than it otherwise One pay will directly by alleged actions of the of the Fund should be dealt with of the would because voters, companies. Affiliated Con- who free to remove Commis- defendant choosing brings Vieweg position by also suit sioner his Trades Foundation struction likewise in the next employees who have to vote Governor behalf of its Therefore, However, by both Affiliated the time the voters affected. election.6 been say, and the em- have been Trades Foundation have another the suits will Construction $250,- legal right dropped ployees represents have a clear and the chance to recover it 000,000, money, will perform his duties a tremendous sum of the Commissioner to see manage the Fund so as have been forever lost. under the law possible rates of “fix and maintain lowest has been about There much ado premium taxes.” money far expended-thus amount of relying majority, pursuit of these cases. The legal duty the law Vieweg has a to follow information, quotes upon the Commissioner’s Fund, manage fixing the properly and following: bearing in his possible mind lowest rates and WHEREAS, appears Virgi- that the amount obligation fiduciary to the fund. West owing approxi- Code, premium and § defaulted due nia 23-2-4 states: million the interest and mates and $95 (a) commissioner, conjunction penalties approximate thereon also $95 perfor- compensation programs with the accumulating at the million further council, mance is authorized to establish MONTH; per million rate $3of system determining for the classifi- rule WHEREAS, expenses to outside limitation classes of em- cation and distribution into million; totaled date have $3 subject chapter, system ployers to this WHEREAS, may expect Division determining premium taxes rates of ongoing expenses litigation incur outside subject applicable employers to this $30,000per month .... chapter, system policy options multiple thereto, subscription with criteria Majority (emphasis at at 858 S.E.2d employer’s statement criteria for annual added). my powers Even basic mathematical liability providing informa- both benefits $30,000 only one per tell me that month is tion and rate information. determination' $3,000,000 penal- percent of the increase in month, accruing and interest

ties each spent repre- the total amount to date (2) The rule shall consistent with one sents month such accruals. compen- Clearly, of the commissioner and has refused to Commissioner performance programs council to sation expended consider the amount in the context fix possible rates recovery stake, majority and maintain lowest at and the taxes consistent with the main- logic. seduced has been compensa- tenance solvent workers’ Finally, again point hypocri- I must out the tion reduction fund deficit sy drop the of the Commissioner’s decision to keep- exist in and in such fund himself, Vieweg Even suits. fiduciary obligations with their earlier, time, simple in an held perhaps more fund; importance reducing the Fund’s forth deficit, working together that all to see 23-2-4(a)(2) (1995) (emphasis § W. Va.Code pay their fair business owners added). adding no question There is share, and no more: additional million to the Fund’s coffers $250 appointed help possible will fix the and I was to the Office of to lowest rates When Em- reduce the deficit. Bureau of the Commissioner of the fact, majority 6. In Say Duty a member of the had been Workers’ But Unions He Has to Protect quoted saying Nyden, Gazette, as Paul J. much. See Comp., Charleston June Suits, Told, Vieweg Has Court Discretion to Kill ployment Programs by Governor see principles Under- ion—to that fundamental 13,1997,1 February justice to wood on committed are not violated. restoring Compensation the Workers’ divi- being the rule law in Was violated a sound, I sion to a financial condition. way, large compa- fundamental when 18 coal you to

would like share with what allegedly pro- nies out carried a sustained Compensation Programs Performance gram using undercapitalized corpora- shell Bureau, working together, Council and companies’ thereby tions to mine the coal— objective.... doing are achieve to this avoiding huge environmental and worker lia- First, Vision 1. reduce and then eliminate bilities? deficit, billion which now burdens $2.2 seen, That remains to jobs because com- limits creation and economic panies yet brought have not growth been to account development Virgi- and West for their actions a trial before court. nia. ... Aggressively Vision 3. prosecute claimant However, based on the limited record be- employer workers com- [sic] fraud us, it fore is clear that the State had made pensation because fraud reduces funds lawsuits, good out a underlying support legitimate available to claims mining companies use of contract employer increases the burden.... paying mining avoid the full cost of coal— being Positive results achieved and including compensation premiums— workers effectively will continue to build and broad- $200,000,000 was a scam that took from the ly on I these results. must issue a warn- Virginia put workers West ing, Any missteps serious caveat. large hands of stockholders a few fragile process initiatives to reverse this companies. will cripple goals the well-structured As the United Mine Workers of America objectives destroy process and could curiae, ably argue in their brief amicus altogether. job “stay Our is to course” plenty there are of excellent and viable together and this we will do. recovery theories that allow of the fruits of a Vieweg, William F. An Letter All Open a wrongdoer scam from after decades —even Virginia Employers, Virginia the scam finished. Compensation, Look, Workers’ Inside Nov. present hypothetical like to I’d several sit- (emphasis original). These words the instant case. uations resemble ring now hollow. situations, step this these would Just let former Governor’s decision to uphold the rule of law? people hook Pittston off the left the of West Virginia expense of cleaning up7, attorney prosecuting If a who had been a present decision administration partner firm the firm senior of a law when employers leaves the honest and business elderly people, defrauded dismissed criminal Virginia cleaning up owners of West some- charges against his fraud former cronies— body mess. in ques- else’s The defendants in? step would this Court tion allegedly acted with callous disre- Department If the of Welfare cut a deal gard for rule of law and the common parent with a who had abused their children good. To allow executive branch to re- charges, group all drop abuse because a unconscionable, activity ward simply parents pay therapy agreed other had must, I respectfully, and so dissent. for the abused this Court children —would step in?

STARCHER, Justice, dissenting: Chief law, driver, preserve promote orphaned by To the rule If a child was drunk guardian, this Court who the best act—in and the child’s was driver, principled appropriately limited the drunk fash- friend of dismissed taxpayers eventually 7. The of West America v. State West had See United States (4th Cir.1985), pay government Virginia, $10 the United States 764 F.2d 1028 almost aff'd efforts, plus up million for the clean interest. U.S. 107 S.Ct. 93 L.Ed.2d 639 courage place. should show that against We the driver —would lawsuit child’s step case. should in to creativity We in? step Court protect justice and the rule of law.1 questions is of these My answer to each step prohibit “yes” Court would —this clearly wrongful and con- that was conduct justice and rule of

trary ends

law. step in in this We we should case.

And so temporarily require that these law-

should dismissed, the case and remand suits not be 520 S.E.2d 875 thorough a circuit court of review Virginia ex rel. Christina surrounding STATE of West the lawsuits’ the circumstances MEANS, Petitioner, dismissal. proposed pub- especially concerns me is that a

What files a number of lawsuits in lic official KING, Judge E. Honorable Charles public official then and the same dismisses County, Circuit Court Kanawha so, doing action 1999. the suits Department Transpor- Virginia West way long immunizing pub- goes a toward tation, Highways Division Wil- colleagues from lic official’s former business Respondents. Cayton, liam administration a future any attempt No. 25891. these debts. collect Virginia a blow workers! What to West Supreme Appeals Court of companies coal a sweet deal for the What Virginia. using mining made a fortune contract 1, 1999. Submitted June companies! And a sour deal for the what Virginia including respon- July Decided businesses— companies played by sible —that rules, paid fair share of workers’ their premiums!

Finally, public what a stain on face of just It terrible a for-

government! looks spearhead company

mer coal executive giving that has the effect of his former

move colleagues immunity from lia- civil

business

bility. course, some

Of would take careful remedy

crafting for this to fashion excessively intrude

this case would not legitimate prerogatives of the execu-

on the But can on and

tive branch. this Court take is we are

perform difficult tasks —that what

paid to do. courage a result of this

As Court’s

creativity past, our state is a better companies where note that the narrow issue in the in the circuit courts those

1. I decided course, majority opinion petitioners courts, whether the Circuit are filed. cases prohibition a writ or entitled to mandamus in jurisdiction original than does this much broader majority opinion this Court. The decision in the petitioners may consider whether Court. controlling issue of whether the on the taking would serve the action circuit court petitioners person seek to block other people. her interests of West the dismissal of the lawsuits the coal

Case Details

Case Name: State Ex Rel. Affiliated Construction Trades Foundation v. Vieweg

Court Name: West Virginia Supreme Court

Date Published: Jul 14, 1999

Citation: 520 S.E.2d 854

Docket Number: 26364

Court Abbreviation: W. Va.