*1 275 rеquired against defend claims to be were indemnity implied when
predicated agree- into settlement
have both entered approved by court.
ments that have been certainly approve loathe is
This Court circumnavigating a backdoor method
such agreements. As we finality of settlement Mauck, motion for leave “[a]
stated complaint to the sound is addressed
amend at court.” 178 W.Va. of the trial
discretion
96, no abuse of S.E.2d at 778. We find 357 trial court’s decision not
discretion pleadings.13 PLI to its
permit amend foregoing, we affirm the deci- Based on the C.J., Davis, dissenting opinion. filed County. Upshur sion of Circuit Court Starcher, JJ., Affirmed. sepa- filed Workman and concurring opinions. rate S.E.2d 376 507 ex rel. Stan
STATE West
FARLEY, of Putnam Sheriff
County, Petitioner,
v. SPAULDING, Judge
Honorable O.C. County, and Court of Putnam
Circuit County Putnam Commission of
County, Respondents. 24965.
No.
Supreme Appeals Court Virginia. 28, April 1998.
Submitted 14, July
Decided 1998.
Concurring Opinion of Justice Workman 20,
July
Dissenting Davis Opinion of Chief Justice 22, 1998.
July
Concurring Opinion of Justice Starcher 9, 1998.
Nov. appears Although judgment it primarily on be affirmed 'when lower court relied implied inability ground legal PLI’s indemnity to be successful on an judgment correct on against theory either or Mr. Pel- record, PBC regardless ground, by the disclosed legrini denying its PLI’s motions to amend theory assigned by the lower court reason or pleadings, we limited the lower court’s are not ”) Syl. (quoting judgment’ Pt. the basis for the Copley .grounds making our review. See Wolfolk, W.Va. 140 S.E.2d Barnett v. 149 Educ., 480, 485, Mingo Bd. (1965)). ("stating court’s 466 S.E.2d that lower *2 Smith, III, Wayne Van S. G. Bib-
Claude Charleston, ber, Bibber, Smith & Van Attorneys Virginia, for Petitioner. Hedges, Hedges, Byrne M. & Mor- John Virginia, Attorney for Amicus gantown, West *3 Curiae, Association. West Judicial Johnson, Ramey, Steptoe Aneil & G. Charleston, Attorney for Virginia, West Re- spondent Judge. Gritt, Winfield, Virgi-
Franklin L. West Jr. nia, County Attorney Respondent Com- mission.
McCUSKEY, Justice: prohibition, original proceeding In this Farley, petitioner, Stan Sheriff of Put- County, petitions nam to issue a this Court preventing the prohibition writ of Honorable Spaulding, Judge of the Circuit O.C. Chief County, enforcing Putnam from two Court he entered administrative orders which 26, judge’s August to the Pursuant orders, individuals, nine who had been hired per- County the Putnam Commission county’s court functions for form designated judiciary, were marshals duties. granted certain Farley the administrative Sheriff attacks impermissi- an orders unconstitutional statutory power usurpation of his under ble (1923). On other hand, Spaulding respondents, Judge Commission, County assert that Putnam constitutionally challenged orders and, further, § 51-3-5 valid that W.Va.Code preclude respondent not does employment of court county commission’s se- officers, go responsibilities curity be- whose merely proceedings. yond attending court addition, that respondents contend has vested cir- Virginia Constitution judges, particularly in chief circuit cuit regulate courthouse se- judges, the necessary personnel curity employ security functions. For perform below, explained we find reasons laws of Virginia Constitution and Accordingly, support we both sides. State part, the writ part, deny, grant, prohibition.
I. three individuals under consideration for the position; expressed prefer- he his FACTUAL BACKGROUND Ratliff, Douglas eventually who was ence County Building job. Judicial The new Putnam selected August facility was opened in of 1997. On June commission Putnam constructed Commis- adding Douglas Ratliff to entered order equipped by the sion and commission county payroll, effective June devices, including a state-of-the-art 20, 1997, August On the commission entered machine, detector, x-ray video monitor- metal placing eight persons, an order selected ing equipment, and remote-controlled elec- Deputy Mr. Ratliff to serve as Mar- Court building houses the tronic door locks. county payroll, on the shals effective County judiciary, including two cir- Putnam day. *4 family judges, magistrates, cuit three and the 26, 1997, August Judge Spaulding On is- clerk, master, the circuit the law as well as sued two administrative orders clerk, probation department, magistrate dispute. provided now in The first order prosecuting attorney. follows: judicial planning building the new WHEREAS, Article VIII of the Constitu- adequate included the consideration of Virginia provides tion of West for the Su- security personnel requirements. Discus- preme Court and its Circuit Courts to transpired regarding security the court sions appoint employees; their officers and personnel necessary security to ensure the WHEREAS, adequate security is neces- facility. Among participants of the needs safe, sary peace- to assure the secure and representatives in these discussions were business; ful cоnduct of a circuit court’s commission, county judiciary, and the sheriffs office. Their evaluation WHEREAS, of Putnam Circuit Court security place against needs took the back- County, Virginia, has determined 1996-1997, year drop that in fiscal Sheriff position qualified that a full-time for a Farley assigned only depu- had one full-time necessary adequate Court Marshal is ty county’s sheriff to serve as bailiff for the security in the conduct of the court’s busi- judicial family six officers and law master. ness; and In order to efficient and effective WHEREAS, County the Putnam Commis- security facility, services for the new employed Douglas sion has M. Ratliff to county judi- commission and the responsibility assist this Court in its ciary undertook collaborative effort to staff safe, providing public employees building properly civilian trained peaceful in secure environment Farley in- officers. Sheriff was County Building; Putnam Judicial security program formed of the court that WHEREAS, Judge the Chief of the Cir- being developed by was the commission and County, Virgi- cuit Court of Putnam county judiciary. While there dis- is some nia, Douglas has determined that M. Rat- pute Farley as to whether Sheriff endorsed qualified by training experience liff is officers, of civilian use affidavits Marshal; to be the Court’s respondent judge of the and Linda K. MeCla- NOW, THEREFORE, ORDERED, IT IS nahan, administrative assistant to the Ratliff, Douglas employee M. commission, indicate that the did ex- sheriff Commission, County hereby Putnam press support aspect for an of the overall designated by Judge the Chief plan returning which involved to law enforce- Twenty-Ninth Judicial Circuit as Court ment activities the one sheriff who Marshal for the Circuit of Putnam Court assigned had been to bailiff services. It also County, pleasure to serve at the will and appears from the record that thereof; Judge the Chief Farley May commission met with Sheriff 21,1997, to discuss the selection IT of the Court IS FURTHER ORDERED that Marshal; Deputy the sheriff was told of the Marshal utilize Court Court
279
II.
by the Putnam
employed
Marshals
Marshal
to assist the Court
Commission
REVIEW
STANDARD OF
Deputy Court Marshals
that said
upon petition
The standard of review
powers and
the same
articulated
this
prohibition
writ of
was
duties;
carrying
out
Marshal
Court
ex rel.
Syllabus
Point
of State
Court
Provided,
Marshals
Deputy Court
that said
Karl,
Casualty
Fire &
Co.
W.Va.
trained, qualified, ap-
properly
shall be
(1997):
678, 487
S.E.2d
by this Court
appointed
proved and
“ ‘
determining
grant
“In
whether to
a rule
pleasure of the Chief
at the will and
serve
prohibition
when a court
to show cause
Judge thereof.
jurisdiction,
acting in
its
is not
excess of
IT
ORDERED
IS FURTHER
adequacy of
this
will look to the
Court
Deputy
Mar-
Court
Marshal
Court
appeal
such as
other available remedies
are authorized to:
shals
economy
over-all
of effort and
and to the
lawyers
money among litigants,
of court bailiff
perform
the services
courts; however,
prohi-
this Court will use
assuring
security for all court
including
discretionary way
to correct
bition
proceedings;
substantial, clear-cut,
only
legal errors
pro-
and from court
prisoners
2. escort
a clear statuto-
plainly
contravention of
*5
ceedings;
constitutional,
common law mandate
ry,
independently
may
which
be resolved
in
around the Put-
make arrests
3.
in
any disputed
only
cases where
facts
Put-
County
Building and the
nam
Judicial
high probability that
the trial
there is a
County
for offenses com-
nam
Courthouse
completely reversed if the error is
will be
presence
presence
or in the
mitted in their
Syllabus
in advance.”
Point
not corrected
Court;
Black,
112,
1,
v.
164 W.Va.
262
Hinkle
carry
firearm or other
a concealed
(1979).’
12,
Syllabus
744
Point
Glo-
S.E.2d
in
deadly weapon upon
person
their
Narick,
381, 400 S.E.2d
ver v.
184 W.Va.
Building and the
County
Putnam
Judicial
(1990).”
1,
Syllabus Point
State ex rel.
816
Courthouse;
Troisi,
28,
Putnam
194
give rise to the essentially made the Chief Justice of ment this case. head Supreme Court the administrative Duties A. The Powers Significantly, of all courts. the administra- Court Circuit power tive vested the Chief Justice of the VIII, 6 of West Article Section Supreme also flows to the lower court Court part: provides, relevant Constitution 28, 73; judges.” at 454 at 193 W.Va. S.E.2d also have such other courts shall Circuit Const, VIII, § art. 3. We elabo- see W.Va. power, original or jurisdiction, Lambert, upon supra, rated this structure concurrent, pre- appellate or provisions where we discussed Subject approval to the by law. scribed power administrative Amendment which vest appeals, eаch circuit supreme court of Lambert, stated in the circuit courts. We have the court shall supra, that govern the court. rules to establish local Reorganization drafters [t]he Subject supervisory control of the to the implicitly recognized, howev Amendment supreme appeals, each circuit court of er, can that this Court neither make nor general supervisory con- court shall have every micro-manage administrative deci in the cir- magistrate trol all courts over that needs to be made at the local sion jus- chief cuit. the direction of the Under VIII, Thus, 6 level. Article Section of appeals, the supreme court of tice of the that, Virginia Constitution court, or the chief judge of the circuit Court, subject a circuit to control if there be more than one judge thereof judge, judge chief circuit in a or a court, circuit shall be the judge of the circuit, multi-judge given head of the circuit court and administrative Rutledge, affairs. control local See magistrate courts in the circuit. all 837; Syl. at at Pt. W.Va. S.E.2d VIII, language contained in Article Taylor [180 Carter *6 Reor- part of the 1974 Judicial Section 6 is (1989)]. addition, In this sec S.E.2d 291 Virginia ganization Amendment to the West judge, gives tion also the circuit court Constitution, which rewrote the constitution- thereof, judge “general super the chief judicial our state’s powers al and duties of visory magistrate all control over ” overriding government.1 “The branch of Const, VIII, § art. courts.... W. Va. 6. Reorgani- purpose passage of the behind the (foot- 808, 490 at 897 200 W.Va. at S.E.2d provide a unified zation was to Amendment omitted). *7 providing a methods for sheriff to discuss require power court’s inherent resources Id. and secure courthouse environment. safe responsibilities, performance of its we for among at 547. After several discussions Lambert, Syllabus supra: in held Point 3 of judge the chief entered parties, these authority to re- provide have inherent secu- Courts order that the sheriff requiring resources, necessary specifying that quire rity such as suffi- for the courthouse security equip- operating expenses, pay work of the cient funds for the board the costs The parking space, supplies, personnel. and other Id. Colorado space, ment and judge’s upheld part of the chief In a court to material items. order for required the sheriff to order which require use of its inherent invoke powers doc- resources, security the “inherent under court must demonstrate that Ultimately finding that the directive reasonably necessary trine.” are such resources the court’s inherent proper exercise of was performance responsibilities of its authority, the court reasoned: justice. Although in the administration to reach be- ordered secu- Judge properly courts must be cautious not Chief [T]he branch, viability of judicial continuing it is yond rity of the to ensure the public’s judiciary in- to be able to courts. Without crucial for judicial integrity reasonably in of the power as neces- confidence voke such proper admin- system The sary independent is threatened. to maintain itself as an op- justice requires that courts equal government. of our istration branch keeping in matter of a court session environment. and secure in a safe erate order, custody custody jury, and security of the of the society views When ” Frazier, 193 prisoners authori- while in the court.” skepticism, the system with Pau (quoting A at 73 judicial is diminished. W.Va. at 454 S.E.2d ty of the branch 396). proper at judicial prevents ley, 173 at 314 S.E.2d branch W.Va. weak gov- Syllabus Pauley, 2 of tripartite Additionally, scheme of in Point functioning of the Judge properly or- bailiff is an officer of supra, “[a] we held that ernment. The Chief assigned, the courts continue court to which he or she is dered so supervision, subject constitutional mandate control and to fulfill their to its orderly digni- justice responsible preserving in an order and deco administer rum, jury, taking charge guarding atmosphere. fied which are rea prisoners, and other services at Id. 548^9. sonably necessary proper the court’s of the Sheriff and Duties B. The Powers Frazier, Moreover, supra, functioning.” we stated: (1923) pro- Virginia vides bailiff, court, nev- The an officer of the appeals ertheless, supreme court of shall not be falls within the administrative [t]he sheriff, by any every circuit hierarchy up by Reorganization but attended set court, court, county point and other court of underscore the Amendment. We county by any shall be attended such as clerks record of that ministerial attendants held, bailiffs, in which it is regardless the sheriff of the of the method of selection, act as the officer thereof. who shall fall within the administra- system. Judges tive control of the court addition, Rule VII ultimately responsible for action or Rules mandates: Trial Court employees only inaction of their sheriff, present deputy, or a shall be The judge can determine whether his assistants all times while the court is session. at for his needs. are suitable and sufficient num- The sheriff shall a sufficient maintain order in the deputies ber of at 74. at 454 S.E.2d at all times. The rules and courtroom pertaining the court to conduct orders of The Powers and Duties C. enforced him or
the courtroom shall be
Commission
them.
IX,
Article
of the West
Section
provisions
of W.Va.Code 51-3-5 and
provides,
pertinent part:
Constitution
Rules, set forth
Rule VII of the Trial Court
shall ... un-
commissions....
above,
interpreted
were
this Court
regulations may
prescribed
der such
Meadows, supra.
We concluded
Frazier
law,
superintendence and ad-
have the
and Rule
in Frazier
VII
police and fis-
ministration of the internal
charge
of a
with the
the sheriff
cal affairs of their counties....
providing bailiffs for the
circuit
*8
addition,
that
court.
In
we found
interpreted
has
this
This Court
to select and
confers
on the sheriff
VIII,
formerly contained in Article
provision,
assign one or more
sheriffs to serve
24,
county
vesting the
commis
Section
as
26-28,
at
454
as court bailiff. 193 W.Va.
of this State with “a wide discretion
sions
necessary corollary
at
As a
S.E.2d
71-73.
administration of
superintendence
and
authority,
duty
recognized
we
and
police
affairs of their
the internal
and fiscal
VII,
under
51-3-5 and Rule
the sheriff has
1,
County
Syl. Pt. Meador v.
counties.”
“maintaining a
responsibility
the further
(1955).
Court,
96,
141
“We have defined bailiff (1953): charge who has 85 court officer attendant sheriff, Proper though important law en- D. The Balance of officer, does not have the com- forcement Powers in This Case plete of the inter- or the exclusive control above, As indicated the facts in the police county. By affairs of the virtue nal action county before this Court are that the quoted provision of the constitutional commission hired nine civilians to serve as county superin- court County officers at the new Putnam administer, subject regu- tend and to such Thereafter, Building. respon Judicial law, may prescribed by lations as be judge pair dent chief entered a of administra county. police affairs of the designating tive persons orders one of those (1989) Additionally, eight as Court Marshal and the other as mandates that Deputy Marshals authorizing Court all county every county, commission of [t]he (1) perform nine civilians to the services of expense county, at the of the including assuring court bailiff county at the seat thereof a suitable court- (2) proceedings; all prison court escort together ... house with suitable offices for (3) proceedings; ers to and from court make judge judges of the circuit court and County in and arrests around the Putnam jurisdiction, courts of limited clerks of cir- Building County Judicial and the Putnam courts, jurisdiction cuit courts of limited Courthouse for offenses committed their commission, assessor, county and of the (4) Court; presence presence or in the sheriff, prosecuting attorney, county su- carry deadly a concealed firearm or other schools, perintendent surveyor, weapon upon person their in the Putnam may required all other offices as are or County Building and the Putnam Judicial county law.... commission shall Courthouse; County use reasonable courthouse, keep jail offices other force, force, necessary including deadly adequate repair, sup- in constant and responsibilities in the exercise of their heat, plied necessary light, with the furni- orders, duties. In one of the two which were ture, books, service, janitor ... record simultaneously, respondent entered things necessary.... and other shall be as judge “adequate security found is neces Moreover, under W. Va.Code 7-l-3m safe, sary peaceful to assure the secure and (1974), county “empowered commission is conduct a circuit court’s business” and employ, compensation fix for and dis- position qualified “a full-time for a Court charge ... ... personnel from necessary adequate security is Marshal necessary time to time be to aid such courts the conduct of the court’s business.” It is in exercising discharging apparent Depu also from the orders that the provided by their duties as law.” ty Court Marshals were intended assist Arthur, ex rel. State Court providing adequate the Court Marshal se 293, 297, (1965), 150 W.Va. S.E.2d judicial building curity for the and its occu this Court noted that pants. imposes upon a statute [w]hen ease, of this we Under circumstances duty perform particular court hiring find that the commission’s
function, act, togeth- it has the to so security personnel was within its con- reasonably er with such аs are superintend and adminis- stitutional necessary perform that function. For ter the internal and fiscal affairs Code, example, provisions under the Const, IX, 11; county. See art. 1931, 7-3-2, amended, Meador, Hockman, supra. supra; We also charged of each with the *9 security in maintain, seat, believe that the court officers county at the and necessary opera- question are to the efficient expressly courthouse. While no statute County judicial facility tion of the Putnam purchase mops authorizes the court to and brooms, security equipment, with its state-of-the-art authority implied is as a therefore, and, that the commission had the necessary and reasonable incident to the Ar- implied authority employ to them. See proper maintenance of the courthouse. 7-3-2; county judicia- of the thur, operation § and efficient supra; W.Va.Code W.Va.Code action ry, provided not find that the commis- that such do administrative 7-l-3m. We any in personnel impair supplant power of these and employment sion’s does not or the power and way impaired supplanted county or the furnish responsibility of the sheriff to county duty of the sheriff under for deputy sheriffs to serve court bailiffs Rule VII the West 51-3-5 and county’s the courts. Trial Court Rules. Therefore, grant prohibition, the writ we addition, properly we find that part, prohibit in and the of the enforcement officers, in security whose trained duties authority in grants the first two contained security facility’s operating the new clude that respondent judge’s grounds order on the devices, reasonably to necessary are in order power the they usurpatory sheriffs just security adequate for not ensure duty and Rule Con- and under 51-3-5 VII. building judicial the entire courtroom but versely, we that remainder of conclude Lambert, supra. As occupants. its See and respondent judge’s constitutes orders Comm’rs, supra, we find in Board of valid exercise of his inherent administrative power had Judge Spaulding that the inherent and, consequently, deny we the writ security, provide adequate court which is to prohibition to the extent that it would bar orderly to and administra essential the safe provisions. enforcement of those For exam- However, justice. the sheriff tion of because ruling, can ple, under our the court marshals empowered obligated, and under is both judicial make arrests in and around the new VII, deputies to provide Rule building county of- courthouse for of the serve as bailiffs all levels to court presence in the fenses committed in their respondent county judiciary, we find that the presence of the circuit court. judge improperly entered the sheriffs baili that to the extent he authorized wick IV. perform to the courtroom marshals prisoners to services of bailiff and escort CONCLUSION Frazier, proceedings. from See Upon foregoing, all of here- this Court separa supra; Pauley, supra. Under the writ of prohibition orders that doctrine, cannot tion of this Court denied, granted, part, part. in in portions permit usurpatory of the re these spondent judge’s order to stand. denied, granted, part, part. Writ
Accordingly, the facts under foregoing legal principles, this case WORKMAN, Justice, concurring: county has the we hold that a commission (Filed 20, 1998) July authority perform employ individuals to judiciary, emphasize signifi- county separately I write two functions for majority’s holding cant caveats that but is limited insofar as it manner has properly cannot be exercised in a commission impairs supplants power perform security func- employ individuals to sheriff, county judiciary, long under W.Va.Code tions for so supplant impair Rule the West not VII of do (1960), regard, Rules to select duties of sheriffs. In this Trial Court deputy one or more sheriffs to serve as court commissions should not conclude majority any opinion way licenses bailiff and a sufficient number of deputies, force every court of record the coun them to create their own bailiffs way ty. judge protections the civil We further hold erode service court, statutorily judge circuit chief thereof if to which sheriffs are enti- or the (1993 §§ -21 judge there is than one of the circuit tled. See W. Va.Code 7-14-1 to more court, Supp.1997). protections These continue to the inherent administrative & abrogat- designate per in force effect and be persons and authorize cannot majority’s necessary form to the safe ed virtue of the conclusion services *10 provided by Virginia security properly developing can be West should also be county and the commission. plans perform statutory responsibili- both the sheriff their ty provide security throughout courtroom in a rather Although this matter arose Virginia. West scenario,1 unique factual a number of other day Virginia appeared sheriffs on the West sup- argument, apparently as a show of oral DAVIS, Justice, dissenting: Chief statutory right
port for the assertion of (Filed 1998) 22, July security services. Now that opinion our has clarified sheriffs’ Let me clear. I be believe that the courts authority, it is their attendant and man- require heightened of our security. State datory perform responsibility to those duties Fortunately, the courts of our State have not provide adequate security for the and to by tragic been victimized some of the inci- judicial system. dents that have occurred in in courtrooms inadequacy insufficiency The securi- Nevertheless, potential other states. ty Virginia’s in courtrooms has been West unlawful conduct to occur in of our court- consistently major problem, identified as steps rooms is real. Affirmative should and family proceedings, especially in law master potential must taken to minimize that likely where violence is most to occur. However, approach threat. embarked recognition problem, In of this the West by upon county the circuit court and commis- Virginia special in Legislature 1996 created a County, by sion of Putnam and affirmed by security fund to be administered a “court Court, majority wrong. of this I believe board,” security in order to enhance the county legal commissions have the au- courts in the counties of this State. W.Va. thority unilaterally provide security (1996), seq. et in As stated courthouses, guards county any county 3—16(a)(1996): “The Code 51— However, building pro- for that matter. conjunction county of each in sheriff with security guards police power vide with state judges, magistrates family circuit law (i.e., powers, arrest to use may develop security plan masters to en- firearms) deadly carry requires force and to security in hance the of all the court facilities statutory legislature. authorization plan use and submit said to the support no statute As exists Moreover, county security board.” matter, majority opinion in I re- must judicial 1996 and statewide summit spectfully dissent from the decision rendered meetings were conducted this Court by majority in this case. input justices, which included the of various majority’s given The decision has to circuit judges, magistrates and officers of the court courts and commissions one of the regard variety problems. to a Dur- with jealously guarded most constitutional ing meetings, each of those it was deter- system police power. in our democratic mined that court was one of the — majority opinion police, euphemis- allows facing Virgi- most serious concerns the West tically police, dubbed court to be created judicial system. nia In the Commission fifty-five all counties of our State. These on the Future of the West Judicial to the police forces are not accountable state System, which met lieu of a summit meet- legislature. legislаture did not authorize ing, concerning gathering ac- its information fact, their creation. these forces report tivities. That also listed court securi- to the sher- are not even accountable ty as one of the most serious concerns of iff constitutional it is to Virginia judicial system. whose We will look Instead, county. law enforcement for the report final due in the the Commission’s private police forces controlled fall of 1998 for recommendations on how to problem, and circuit courts. deal with this but the sheriffs of commissions building planning apparently tacitly County, judicial at least ac- 1. In Putnam a new separate security quiesced in the creation of a state-of-the-art features was constructed. system. participated cou'ntyjudicial that the force for the The record reflects sheriff *11 286 carefully majority opin- If reviews the opinion has been divided one dissenting
This
ion,
find
or
my
I
discuss-
one will
no constitutional
statuto-
Part
of
dissent
parts.
two
into
ry authority granting a
commission
to
the constitutional
es
I consider
what
court, acting jointly
singularly,
and circuit
majority’s opinion.
statutory flaws
the
police
force distinct
power
the
create
manner
my dissent sets forth the
Part II of
historically
the
law enforcement
power
from
sheriffs’
by
police
has
the
which
majority opinion
The
agency.
relied
in this
been established
State.
“layman” type reasoning
upon nonpersuasive
Part I
patch together
an unlawful inter-
in order
IS NOT
THE MAJORITY DECISION
provi-
of
constitutional
pretation
statutes and
BY THE LAW
SUPPORTED
purport
that a
which
to show
sions
jointly
and circuit court can
dis-
commission
United
Tenth Amendment of the
The
powers
A
police
in this state.
careful
tribute
provides
pow-
that “[t]he
States Constitution
the
and state statutes
review of
constitution
the
the
delegated to
United States
ers not
reasoning in
illustrates
erroneous
Constitution,
prohibited by it
to the
nor
majority opinion.
States,
respective-
to the
are reserved
States
Majority
ly,
power
Opinion
is the
people.”
to the
One such
The
Violates
power
Separation
enforce-
of “states” to
the Constitutional
by the
ment of laws and ordinances enacted
of Powers Doctrine
political
subdivisions. This
states and
My
no other
research has revealed
police power
manifest-
is the
which is
judicial
has held that a
branch of
which
agencies.
ed in law enforcement
could, alone,
in concert
government
government,
police
of
another arm
create
1863,
the Constitution of West
authority,
force. The absence of such
other
succinctly
police power
articulate the
did not
case,
majority opinion
in this
is due
than
Amendment.
afforded to states
the Tenth
given to
respect
other courts have
1872,
However, in
several amendments were
powers
part
“As
“separation of
doctrine.”
of
Among
adopted
the state’s constitution.
democracy
our constitutional
on both the na
2,
I,
amendments was Article
Section
those
level,
prin
and state
to the
tional
we ascribe
which reads:
equal
ciple that there shall be three
branches
of
is a
government
The
the United States
executive,
ju
government
legislative,
of
—
powers, and all
government of enumerated
Stephens,
ex
Lambert v.
dicial.” State
rel.
it,
delegated
inhibited to
powers not
nor
802, 809, 490 S.E.2d
898
200 W.Va.
states, are
states or to
reserved to the
(1997).
separation
of
doctrine is
Among
so
people
thereof.
V,
Article
1
'etched
Section
state
regu-
to the states is the exclusive
reserved
that,
part
“[t]he
constitution
government
lation
their oum internal
judicial
legislative,
depart
executive and
police;
high
and it is the
and solemn
distinct,
separate
shall be
so that
ments
govern-
departments
the several
powers prоperly
neither shall exercise
constitution,
ment,
guard
created
this
others[.j”
belonging to either of the
State,
protect
people
from
explained
ex rel.
Court
State
Brotherton
upon
rights
re-
all encroachments
so
390, 402,
Blankenship,
214
S.E.2d
added.)
(Emphasis
served.
“[tjhe
system of
‘checks
I,
provided
in American
2 of our
constitution
and balances’
state
Article
Section
state’s
grants
itself.
federal constitutions and secured
each
the state
“[ajbsent
Therefore,
government by ‘Separation of
Pow
state constitutional
branch
authorization,
theoretically
practically
statutory
[political subdivisions
ers’ clauses
com
courts,
upon,
when
to thwart
pels
not
to create
called
state]
do
government
actions of
police.”1
...
unlawful
one branch
Palmer,
(Kendall/Hunt 1994)
Cleckley
Introduction to the
System
Justice
and Its Laws
Criminal
responsibili-
police powers. Such a decision
impair the constitutional
erodes
*12
coequal
tripartite
government
functions of a
branch.”
ties and
essence of our
form of
effect,
and, in
creates a fourth branch of
majority opinion cites the case of
The
government composed of circuit
state
courts
Nineteenth Ju-
Board
Comm’rs v.
of
and
commissions.
(Colo.1995)
Dist.,
P.2d 545
dicial
that courts can create
proposition
Majority Opinion
2. The
has Nullified
only that a court has
forces. That case holds
Legislative
Designed to Pro-
Statutes
powers
“existing”
to order
law en-
inherent
Security
vide Greater
to Courtrooms
agencies
provide adequate
secu-
forcement
majority opinion
The
has refused to ac-
rity
Supreme
The
for the court.
Colorado
knowledge
legislature
fully
that the
aware
that the courts of that state could
Court held
security problems
of national courtroom
department
provide ad-
order the sheriffs
responded affirmatively
greater
add
equate security
opinion
for courthouses. The
protection to the courtrooms of
state.
noting
separation
was clear
the
of
legislature responded
of
In
powers doctrine limited the
the
to the
opinion
security
courts. The
also made clear that
by
need to assure
in our courtrooms
infringe upon
courts could not
the
enacting
designed
a series of statutes
to ad-
granted
legislative
to the executive and
§
dress the issue. Under
51-3-
W.Va.Code
government.
branches of
(Supp.1998)
security
a “court
fund” was
specifically
helping
defray
established
for
majority opinion
in the instant case
approved
the costs of
enhanced courtroom
exception
separation
has carved out an
to the
security.2
Virginia
exception
of
doctrine. The
allows the
(Supp.1998)
security
created a “court
board”
judiciary
and the
of this
commissions
purpose
coordinating
approv-
the
co-equal
for
of
Legislative
state to be
with the state
government
distributing
ing
security
branch of
state
enhanced courtroom
measures.3
(a)
hereby
security
2. W.Va.Code 51-3-14
in full:
There is
created
board who shall make decisions on how the
magistrate
The offices and
clerks of
money
security
spent
in the court
fund is to be
shall,
courts and the circuit courts
on or before
security
enhance the
of courts. The board shall
month,
day of each
transmit all fees
the tenth
consist of seven members
administrative
security
and costs received for the court
fund
supreme
appeals
director of the
court of
who
provisions
accordance with the
of sections one
ex
and be the chair. The
shall serve
officio
two,
three, chapter fifty
article
of this code
appointed
board shall be
as follows: One circuit
eleven,
one, chapter fifty-nine
and section
articlе
association;
judicial
judge appointed by
deposit
treasury to
of this code for
in the state
magistrate's
magistrate appointed by
one
sociation;
as-
special
the credit of a
revenue fund to be known
family
by
appointed
one
law master
fund”,
security
hereby
as the "court
which is
association;
family
law master’s
one member
department military
created under the
affairs
president
appointed by
the West
of the bar
public safety.
may
The court
fund
bar;
Virginia
representative
state
one
of counties
any gifts, grants,
receive
contributions or other
appointed
counties;
association of
the West
money
specifically
from
source which is
des-
representative
appoint-
one
of sheriffs
ignated
deposit
moneys
for
in the fund. All
association;
ed
the West
sheriffs
paid
collected and received and
into the state
police appointed
representative
one
of the state
treasury
and credited to the court
fund
department
public
secretary
exclusively
expended by
shall be
the board
safety.
improvement
agreed
implement
measures
(b)
the board shall each serve
The members of
upon
security plans
in accordance with
sub-
day July,
one
terms that commence on
first
pursuant
article
mitted
to section sixteen of this
ninety-six. Of the initial
thousand nine hundred
appropriation by the
and in accordance with an
Legislature:
board,
appointments
for
to the
two shall serve
Provided,
year
That for the fiscal
terms,
three-year
two-year
two shall serve for
June,
ending
day
the thirtieth
one thousand
four-year
terms and two shall serve for
terms.
ninety-seven, expenditures
nine hundred
are au-
Thereafter,
appointment shall be
a four-
each
for
pursuant
thorized from collections rather than
commencing upon
expiration
year
term
Legislature.
aрpropriation by
Amounts
prede-
previous
or her
or of his or her
his
term
collected which are
from time to
found
time
may
appointed
No member
for
cessor’s term.
purposes
exceed the funds needed
set
than three
terms. Vacancies
more
consecutive
in this article
be transferred to other
forth
appointed
bal-
shall be
in a like manner
redesignated
accounts or funds and
for other
unexpired
of an
term.
ance
purposes upon appropriation by
Legislature.
(c)
compile
keep
a list of
The board shall
officers who
full:
able and available law-enforcement
W.Va.Code 51-3-15 states in
hiring tempo-
51-3-15(c)
recruiting
their use
specifically
fact,
W.Va.Code
bailiffs to ex-
rary, part-time or occasional
person-
law enforcement
greater
provides for
powers and duties of bailiffs
all the
ercise
provision states:
in courtrooms.
nel
in their counties.
facilities
in the court
keep
a list
compile
The board
(Supp.1998)
Finally,
offi-
law-enforcement
and available
of able
followed in
procedure to be
out
certification
sets
have obtained
cers who
enhanced court-
creating
implementing
provisions
section
with the
compliance
reading
A careful
security plans.4
thirty of
room
five,
twenty-nine, chapter
article
*13
absolutely no
opinion will reveal
majority
the
maintained all
have
and who
this code
Yet, the stat-
of these statutes.
firearms certi-
discussion
necessary qualifications
manner and
unequivocally provide the
utes
to serve as bailiffs
them
fications to enable
courtroom
providing for enhanced
method of
shall make
facilities. The board
in court
throughout
security
the state.5
county
for
to all
sheriffs
available
the list
county with a statement
compliance
be returned to the
shall
in
obtained certification
have
county
five,
plan.
in such
twenty-nine,
of the insufficiencies
article
provisions
the
of section
plan to eliminate the insufficien-
shall revise the
thirty
and who have main-
chapter
this code
security board.
it to the court
cies and resubmit
necessary qualifications and firearms
tained all
(d)
security
Upon receipt
plans the court
to serve as bailiffs
to enable them
certifications
year
a
to review
meet at least twice
make the list
board shall
shall
facilities. The board
in court
money
plans
court
and to award
from the
county
for their use in
the
security
available to all
sheriffs
clerk, county
part-time
commis-
hiring temporary,
or
fund to the circuit
recruiting and
solely
county
used
all the
sheriff to be
to exercise
sion
occasional bailiffs
person-
exclusively
purchase equipment, hire
in their
in the court facilities
duties of bailiffs
expenditures
ac-
in
or make other identified
counties.
nel
develop
plan. The board shall
with the
cordance
full:
51-3-16 states in
4. W.Va.Code
application
criteria to as-
form and establish
(a)
county
conjunction
of each
The sheriff
ap-
making
the decisions on
sist them in
magistrates
family
judges,
with the circuit
money
plications
and how much
will receive
security plan
may develop
to en-
law master
money
award has
be awarded. Once an
will
security
the court facilities in use
of all
hance the
made,
recipient will have a fixed
been
the
plan
county
to the court
and submit said
in the
expendi-
execute the
of time in which to
amount
security board.
plan.
will
The board
set
tures described in their
include,
(b)
plan
security
but not be
Each
award,
writing
the amount of the
forth in
to:
limited
plan objectives
accomplishing the
time frame for
security
(1)
existing
mea-
An assessment of
any unexpended money
requirement that
shortcomings
place
any problems or
sures in
deposit
for
in the court
returned to the board
existing procedures;
with the
security
or decision not to
The award
fund.
(2)
county responds
description of how the
A
any person or
shall not relieve
award these funds
security emergencies and whether the
to court
obligation to
secu-
of their
office
rity
adequate;
response is
this state.
services to courts in
per-
(3)
listing
equipment
prioritized
A
(e)
money
is authorized to award
board
both,
sonnel,
improve
security
needed to
security fund to be used
from the court
county, including
facilities in the
of the court
expenses
training
for
for costs and
counties
equipment
personnel;
estimates for such
cost
may establish minimum stan-
bailiffs. The board
(4)
physical
description of the
locations
A
designate specific
training
and it
dards for
county
a discus-
court facilities around
approved
agencies
for administer-
or institutions
changes
or consolidation
sion of whether
training.
ing such
county;
improve
security
space
in the
could
why
legislature
quite
seems
clear to me
It
providing
up
system
addi-
training
for
for
decided to set
needs
An assessment of
Many
security.
county
counties do not
currently employed
courtroom
or for
tional
bailiffs
budgets
permit
securing
sheriffs to hire
options
that would
additional bailiffs and the
specifically
deputies
for courtroom se-
training.
additional
necessary
following
curity.
example,
the break-
(c)
is
plan prepared
For
under this section
Each
deputies
approximate
security
number of
approval by
down of the
subject
the court
board.
county:
rejected by
security
each
Any plan
board
Taylor
Monongalia
4
Hardy
20
4
5
Barbour
Berkeley
3
4
Tucker
Tyler
Monroe
Morgan
29
Harrison 31
4
6
Jackson 13
Boone 19
Upshur 7
Nicholas 15
Jefferson 11
Braxton 5
Wayne 12
23
Ohio
16
Kanawha 70
Brooke
3
1
Webster
Pendleton
Lewis 8
Cabell
Wetzel 5
Pleasants 6
Calhoun 2
Lincoln
regarding
It is clear from the new statutes
low thе constitution and abide
the state
security
legislature
that the
civil service statutes has been discarded.
courtroom
was
county
easily
ever so mindful of the
sheriffs consti- This situation could have been
avoid-
ed,
Putnam
charge
tutional
law enforcement
had the
Commission
fact,
simply
county.
plain reading
invoked the
and worked
statutes
his/her
3—15(c)
with the court
establishes
it is
board and the sher-
W.Va.Code 51—
responsibility
department
developing
plan
sheriffs to recruit
iffs
a lawful
greater security
in the court
to institute
and hire bailiffs
facilities
for the court-
throughout
Virginia. By
say
only
the State of West
house. This is not to
crafting
option
legislation,
legislature
this new
commission was that
very
invoking
was
aware of the constitutional duties of of
the court
Al-
statutes.
sheriff,
regula-
ternatively,
the civil service rules and
commission could
simply
budget
tions for the
law enforcement officers
have increased the
greater security
and the enhanced neéd for
sheriff so that
the sheriff could hire addi-
Thus,
sheriffs,
qualified deputy
a fair
tional
courtrooms.
and reasonable
as well as
*14
interpretation
security
purchase
security equipment.
of the court
the new
statutes
recruiting
hiring
establishes that the
of
3. The
the
Constitution Grants
Sheriff
temporary, part-time or occasional bailiffs is
Authority to Enforce Laws on
responsibility
the sole and exclusive
of the
County
Behalf of the
fact,
county
sheriff.
In
51-3-
County
complex
law enforcement is
in its
16(d) explicitly
states
the award or deci-
supervision.
begin,
creation and
To
the
not
sion
to award these funds shall not re- Tenth Amendment to the federal constitution
any person
lieve
or office
their
of
nondelegated
nonprohibited
reserved
obligation
provide security
services to
people.
to the states and to the
“It
courts in this State.
state,
‘people’
was the
of our
and not the
state,
majority opinion
legally
could not
cir-
who decided to create
internal law
legislature’s express
agency
fifty-five
cumvent
the
statutes
enforcement
each of our
very
presented
‘people’power
on the
issue
to the Court.
counties. The exercise of
was
So,
9,
opinion
the
fails to even mention the
in Article
1 of the
manifested
Section
state
security
statutes. The net effect of
It
there that the
constitution.
is
voters of
majority’s
chilling.
county
given
authority
the
silence is
Under the
each
were
the
to elect
majority,
legis-
respective eounty[J”6
decision
the
rendered
the
a sheriff of their
hiring
county
constitutionally
lative initiative to control the
of
office
addi-
sheriff is
However,
county
tional
created office.7
are
courtroom bailiffs means which fol-
sheriffs
Clay
Logan
4
5
18
Wirl 1
Pocahontas
Doddridge 1
25
11
30
Marion
Preston
Wood
Wyoming
Fayette
26
Marshall 23
Putnam 24
Raleigh
15
not autonomous. supported both the Colorado county conclusion grants constitution state County Supreme decision in Court Board superintend administer commissions Dist., supra, Nineteenth Judicial Comm’rs v. police Fur the internal counties. has clearly which illustrates that a court stated, ther, Article 2 previously Section as “existing” law enforcement to order grants of the state constitution agencies adequate security police regulate internal state to court, opinion in Fra well as this Court’s Thus, county the state state. both Meadows, 193 W.Va. 454 65 zier S.E.2d a limited role commissions have (1994). only held that In Frazier Court syllabus point power of the sheriff. disagree when a court and does circuit sheriff Com’n, County Amoroso v. Marion authority to judge circuit court (1983) 342, 305 this Court S.E.2d deputy designating enter an order “[c]ounty commissions and sher stated that sheriff, under the direction and control deputy joint employers are sheriffs.”8 iffs sheriff, or her will be bailiff his constitution, In Article Section 6 of courtroom. through authority, enactment of state laws, compensa general Majority 4. The Decision Undermines duties, tion, responsibilities Civil Service Statutes departments, regulating well as sheriff Law Enforcement man appointment sheriffs. “In a creat- Code 7-14-3 speaking, departments ner of sheriffs regu- ed civil service commissions to subject to two masters: state appointment, promotion late and other *15 county respective their commissions.”9 personnel deputy involving matters sheriffs. primary responsibility county County pro- sher- civil service commissions must fighting Virginia regulations provide iffs is crime. West Code mulgate rules and (1997) county grants § 62-10-9 sheriff de- in- training appointees, for the as as well authority the partments to enforce federal training deputies throughout their service for law, geographical/politi- and state within the Virginia law enforcement careers. West respective county. cal boundaries of each through §§ out Code 7-14-9 7-14-14 set importantly, upon More based W.Va.Code very extremely competitive re- stringent and (1994) (acting § 51-3-5 it is the sheriff quirements hiring deputy sheriffs. through deputies) required who is Deputy pass candidates a writ- sheriff must with full courtroom arrest pass ten and must a medical examination deadly authority to use force and Upon satisfying require- examination. these county ments, 7-14-10, carry firearms. the § While commis- pursuant to W.Va.Code indeed, authority may, eight have to unilater- deputy sion the sheriff candidate must meet (8) ally provide “security guards” county for preliminary requirements be- additional courthouses, security guards, having those without the being fore certified fulfilled proper statutory Legis- position requirements authorization minimum the hold Virginia, county Only deputy lature of State of West cannot of a sheriff.10 after met, statutory powers, authority requirements these are does be clothed with arrest measures, (1993) county every county act is mandated to 8-2 mandates sheriff sheriff keeper county jails. § county weights W.Va.Code 51-3-5 be the ex officio sealer of (1994) requires county provide depu- sheriffs measures. every ties in § circuit courtroom. W.Va.Code magistrate that'if a re- 50-1-14 states (1993) (re- 6-3-l(a)(2) § 8. See W.Va.Code also quests department provide county a an sheriff county quiring of each the con- the sheriff seek it, may provided. officer to officer then an respective county sent their commissioners (1993) requires county § W.Va.Code 7-10-1 sheriffs). appointing deputy sheriffs fulfill the duties of humane officer counties, county county commissions if Palmer, Justice, supra, Cleckley Criminal county agree dog sheriff cannot to allow wardens note 1 at 19. carry out the of humane duties officer. (1996) provides § Code 47-1-14 that if part: appoint weights in relevant sealers states commissions do not notify carry the civil service commission weapons. sheriff concealed Nei- vacancy. a The commission then majority opinion ther the nor the record in eligibles the sheriff with the list of proper this case indicates that procedures (3) persons contains the names of three who were followed for the circuit court to consid- highest averages preceding at received weapons. er the issue of Through concealed competitive examinations. It is from the eli- amendment to W.Va.Code gibility deputy position list that the sheriff (1997), legislature removed initial consid- Therefore, upon filled. based the civil ser- eration of carrying deadly licensure for a statutes, vice the citizens of each are weapon jurisdiction from the of courts. West being protected by assured that 61-7-4(a) (1997) unequivo- Code highly highly competent most trained and cally provides “any person desiring to personnel.11 law enforcement obtain a carry state license to a concealed majority The decision rendered weapon apply sheriff of his or her opinion legislative undermines all of the ef- county for such license[.]” W.Va.Code 61- bring forts to hiring about fairness of 7-4(f) (1997) states that “[i]f information deputies. law enforcement Under the application carrying a [for concealed procedure approved by majority ad hoc weapon] correct, is found to be true and opinion, county circuit commissions and sheriff shall issue a license.” West courts can circumvent the civil service stat- 61-7-4(k) (1997) “[a]ny states that essence, majority opinion utes. emas- file, person denied a license in the cir- culates the civil serviсe statute for cuit court of the applica- which the provides, again, sheriffs and oppor- once made, petition seeking tion was review of mischief, tunity political which all law the denial a[of license].” The record in this personnel fought enforcement so hard case does not demonstrate that the circuit prevent and to defeat. permitting issued its order concealed analysis, In the final the Putnam weapons to be carried members of its responsibility Commission had police force. Without a denial of a license to funding more depart- to the sheriffs carry sheriff, weapon by a concealed no ment the court follow stat- and/or circuit court this state to *16 express purpose hiring utes for the of addi- authorizing anyone carry issue an order to deputy tional provide sheriffs to courtroom weapon. By concealed its decision in this security. and courthouse The unlawful case, majority opinion totally disre- course commission has chosen garded § W.Va.Code 61-7-4. integrity assaulted the of our civil service Part II laws. REVIEW OF THE ESTABLISHMENT Authority 5. The Circuit Court Lacked IN THE OF POLICE POWER STATE Allowing to Issue An Order Concealed OF WEST VIRGINIA Weapons to be Carried majority opinion'notes provide my I II that the circuit Part of dissent because I empowered police supports my its force with believe it contention that examination, application, any The commission refuse to examine an his or in applicant, certify eligi- or after examination to as securing eligibility; comply his or who refuses to one, any ble who is found to lack of the estab- regulations with the rules and of the commission. preliminary requirements lished for the examina- position deputy tion or of sheriff for which he opinion suggesting 11. This is not that the court applies; physically or who is so disabled as to be security personnel at the Putnam court- performancе rendered unfit for the of the duties house are unskilled or untrained. To the con- desired; position sheriff of or who Ratliff, trary, Doug Mr. who is a former state intoxicating addicted is liquors to the habitual use of officer, police highly highly is a skilled and a a', drugs; or or who has been convicted of However, trained law enforcement officer. felony; guilty or who has been or infamous written, majority opinion nothing there is conduct; notoriously disgraceful who has or type highly to assure that the same trained and public been dismissed from service for delin-. security personnel skilled courtroom is or will be misconduct; quency or or who has made a false hired in the other 54 counties. fact, practiced statement of material attempted practice any deception or fraud in' (1998) § out- absolutely wrong. The West Code 8-14-3 opinion is majority relatively authority lines in broad terms support tries its decision majority opinion municipal police protecting life and authority gives implicit indicating that preserving law and order. property, and circuit courts commissions types of enforcement The statute vests two I believe the police forces. power to create i.e., power municipal police, statuto- been most clear its legislature has municipal enforce ordinances police ry distribution Moreover, laws. state criminal enforce demonstrates, following review state. As (1998) it 8-14-7 makes manda- W.Va.Code can be language, no statute express absent every qualified municipality tory that estab- grant police powers.12 implicitly said to “Policemen’s lish a Civil Service Commis- Municipal Police 15 Finally, in an individual order for sion.” officer, municipal police become W.Va.Code inherent au Municipalities13 do not have (1993) he or she requires 30-29-5 municipal police departments thority to create “by governor’s committee certified municipali power of . The inherent 14 entry having met the minimum level law- to those areas not addressed ties is limited training pro- qualification and enforcement legislation. or state by the state constitution requirements!)]” Training require- gram legisla the areas addressed state One of municipal end police ments for do not with part municipal police. The relevant tion is entry requirements. level West (1998) provides annual mandates in- plenary power “every municipality shall have training municipal police officers service protect persons proper municipal training for and biennial in-service municipality preserve law ty within police supervisors. therein, and, purpose, to and order for this 2. State Police establish, for, equip maintain a department.” This code sec Virginia, force Chapter 12 of the Acts of West municipal police, it Extraordinary part: tion does not itself create Session of reads empowers municipalities creating public department “AN ACT municipal police. protection ex safety, to create Absent such for the lives and authorization, plicit statutory municipalities property of the of the state of inhabitants words, police agencies. Virginia!)]” By cannot create those tutiopal provided powers municipalities. specif- previously To be 12. I have some discussion Therefore, ic, preventing I will were law enforcement. the drafters concerned with is, my repeat passing 'special not that discussion in this section from laws'. That the state X, 3, supra. specific municipality group dissent. See Part at a laws directed Palmer, municipalities.” Cleckley and Crimi- *17 Justice, supra, nal note 1 at 5. indicated, municipalities 13. Unless otherwise re- cities, incorporated villages fers to towns regard population without size. municipality 15.Qualified refers to the limitations imposed by municipal police civil service statutes, statutes. munic- commission Under stating municipalities in- 14. In that do not have populations, ipalities that are less than with ten police departments, herent to create I required to have civil service 6, 39(a) thousand not not unmindful of Section of am Article commissions, provisions nor are the civil service provi- constitution. the state “This constitutional applicable municipalities of the statutes to such sion is an amendment constitution state's Municipalities generally. populations with that provides was ratified in 'home 1936. It for option than ten have the of are less thousand municipalities. provision by rule' The home rule by provisions, being covered service if civil provides ... of the state's constitution in broad put at an the issue is before the residents election language municipalities a to have role their majority approve having of the voters of provision affairs. The rule does internal home provisions applicable made the civil service give municipalities type of not in fact Additionally, municipal police force. power and control the "home rule” would term any police municipal force to reasonably suggest. many order for come rea- there are While provisions, the statute’s prompted under civil service sons which the insertion of the home constitution, pri- municipal police agency provision must be maintained and rule in the state’s its funds, employees mary purpose paid public place on the and its must was limitations public paid grant and not consti- on a full-time basis out of funds. state's additional be Municipal Virginia police force was created on state Park Police governor, provided March 1919. The (1998) § Code 8-21-1 em- in Article Section 5 of thе state constitu- powers every city by “to charter tion, police. of is the chief executive the state provision, ordinance, by or to create a board purpose the creation of the behind state commissioners, park and recreation police succinctly set forth in force is W.Va. purpose establishing, constructing, im- 15-2-12(a) (Supp.1997), pro- § Code which proving, extending, developing, maintaining police vides state “shall operating city park a and recreation mission of statewide enforcement of criminal system.” municipal The boards of park and emphasis providing and traffic laws with empowered recreation are promulgate protection basic enforcement and citizen regulations, rules may carry pen- depredation throughout from criminal adopted alties when in ordinances munici- maintaining safety state and pal governing generally, Rogers bodies. See streets, public highways.” state’s roads Charleston, City South 163 W.Va. provided It is further in W.Va.Code 15-2- (1979) (discussing powers S.E.2d 557 12(b)(3) (Supp.1997) police that the state “co- boards). provision A in W.Va.Code 8-21- operate in detecting with local authorities (1998) provides that municipal boards of apprehending any person crime and in or park may “employ police and recreation persons engaged suspected or of the com- [they] officers proper shall deem and nec- crime, any mission of misdemeanor or of- essary.” opinion by a 1954 the state’s state, against fense the law of this or of the attorney general opined it was that park States, any any United or of ordinance of police officers carry must have license to municipality in sweeping “This state[.]” gun, police but that such officers could not language at aims enforcement of all laws in property make lawful outside arrests under Imрlicit in the state. this fact is the idea jurisdiction municipal park and recre- law enforcement will be uniform and (1954). Att’y ation Op. boards. 45 Gen. 699 criminal, void of local selective enforcement Park Police 15-2-12(e) Finally, laws.”16 W.Va.Code authorized, by Each commission is (Supp.1997) states that if a sheriff (1993), “to create a requests police the assistance of the state county parks and recreation commission for governor if proclamation, so directs purpose establishing, improving, devel- police full power state “shall have oping, administering, operating and main- authority ... to direct and command abso- taining county public parks and recreation sheriff, lutely the assistance of system public recreational facilities.” The sheriff, police, policeman, game chief of county parks commission for and recreation warden, state, peace fish officer of the promulgate regula- is authorized to rules and therein, any county or municipality or of management tions for the and control of States, any able-bodied citizen of the United county parks and recreation facilities. Rules accomplishing pur- to assist and aid in regulations promulgated by county parks poses expressed in this article.” Commenta- adopted and recreation commissions 15-2-12(e) tors have observed that “[s]ection respective commissions. West empowers police ‘deputize’ any the state that: speci- citizen as a state officer under *18 any fied The regula- conditions. inference to be drawn The violation of such rule and provision by adopted from this is that the to ‘de- tion so commission misdemeanor, putize’ lightly legr any cannot be exercised. The shall constitute a and islature, doubt, person any in no had mind dramatic convicted of such violation shall precipitating pow- punishеd by events the exercise of this a of than five be fine not less er, dollars, e.g., threatening a natural disaster lives nor more than one hundred dollars property, jail by imprisonment period or or a riot.”17 or in for a not Palmer, Justice, Palmer, Justice, Cleckley supra, Cleckley supra, and Criminal 17. and Criminal note 1 at 40. note 1 at 42. regu- which thirty days, by such fine all the and
exceeding or both violation of imprisonment.... larly appointed deputy The of and sheriff such also regulation which any rule and such enforcing has in the criminal laws law or any state the violation of constitutes Notwithstanding any provi- the state. of may prosecuted municipal ordinance be contrary, park of this code to the sions state as a violation of such punished and appointed aforesaid police officers shall municipal rather than ordinance law or required a state not be to obtain license provisions of this section. under carry weapon.... contains a Virginia Code county parks and provision which authorizes 5. State Conservation Officer police offi- employ commissions to recreation (1996) Pursuant W.Va.Code provides, unlike This code section also cers. of division of natural re- the director parks and statutory provisions municipal a chief sources is authorized to select conser- recreation, that: officer to head the law enforcement vation any jurisdiction under and area natural unit of the division of resources. [county parks of the and recre- control (1996) 20-7-1C estab- commission, or in connection ation] “the ranks within the law-enforcement lishes juris- or under the any properties facilities of the of natural section division resources [county parks and control of the diction colonel, colonel, major, cap- commission, lieutenant pursuit [as] or in recreation] and tain, liеutenant, therefrom, sergeant, conservation any offi- more of one or individuals officer-in-training.”18 have appointed officer so shall cer and conservation park (5) Require any operator and of conservation offi- of motor vehicle duties (1996). conveyance public are set out in W.Va.Code 20-7-4 cers or other on or about pertinent part: in This statute highways roadways, or in or near the or fields state, authority, powers stop pur- of the conser- duties and streams they officers shall be statewide and pose allowing vation such officers conduct authority to: game-kill surveys; (1) sight, on without warrant or other Arrest (6) making Summon aid arrests or in seizures any person persons process, commit- court or warrants, executing any pro- or in cesses, notices or any ting a criminal offense in violation of they rights shall have the same state, presence the laws of this in the of such respective powers as sheriffs have in officer (2) doing; counties in so (7) Carry weapons be such arms private waters Enter lands or within the prescribed by the ... but no license or director engaged performance state while in the of their required authorization shall be of such other ...; official duties hereunder (8) privilege; for this officers (3) sight, warrant or Arrest on without other examine, pro- the manner Search in process person persons any ... or com- law, vehicle, automobile, boat, any vided mitting any a criminal offense in violation of car, box, conveyance, express or fish railroad presence any law of this state creel, coat, game bag game bucket or or or fish any any state-owned and waters officer lands fishing place hunting other by the and lands and waters lease divi- under birds, fish, animals, paraphernalia, wild wild sion of natural and all national resources forest amphibians aquatic could or other forms of life lands, parks, Corps waters and U.S. concealed, packed conveyed or whenever Army Engineers’ properties within the bound- they have reason to believe that would and, Virginia, aries State of West thereby secure or discover evidence of the vio- addition ... execute all warrants of arrest on statute]; any [natural lation of resource lands, such state national waters and warrant, (4) any and serve no- Execute search Engineers' parks, Corps Army and U.S. any process under the tice or of law issued properties.... [the statutes] natural resource Finally, away tucked W.Va.Code 20-1-13 wildlife, forests, any relating to and all law authority granted following to con- resources, magistrate other natural servation officers: thereof, having jurisdiction copies of hereby ... conservation officers authorized made and orders entered the chief upon private or, fee, enter into and lands and wa- resources, of water without division any investigate reports complaints ters to subpoena subpoena tecum ... duces conditions, conduct, manner, practices and activities *19 authority, and the same with the same effect, be legal any [deputy considered to adverse to and violative of the with the same sher- to execute [natural statutes] war- resource and writs or sheriff can serve or execute such iff] rant, thereupon. process; notice or and warrants and make arrests
295
having regular
powers
police
full-time staff
of local
addition
...
[but]
officers
officers,
conserva-
of conservation
the chief
shall not
within the civil
...
come
service
or
permitted, by
§
20^
policemen’s pension
tion officer
W.Va.Code
provi-
and relief fund
(Supp.1997),
appoint “spe-
words,
7-1
to select and
grants
In other
sions[.]”
“[t]he Code
“emergency”
cial”
officers.
and
conservation
police
powers
all
given
school zone
conservation
have all
“Emergency”
officers
municipal police,
pow-
which include arrest
powers
regular
and
duties of
full-time
ers.”
However, “special”
officers.
conservation
Parking
7.
Lot Police
scope
officers are
in the
conservation
limited
Further,
powers
of
and duties.
W.Va.
(1998)
West
Code
8-14-5a
(1996)
Code
20-7-lb
the di-
authorizes
states,
part,
“[e]very
relevant
that
munici-
rector of
division of natural resources to
pality
plenary
have
authority
shall
and
agreement
“enter into written
a feder-
ordinance
appointment
agency providing
al
appointment
of
special parking
of
lot
parking building
or
employees
special
of the federal
agency
officers,
police
whose sole
be to
duties shall
setting
conservation officers and
forth the
patrol,
to enforce municipal
and
ordinances
conditions within
such
terms and
fed-
within,
upon
designated parking
or
lots and
employees may
eral
powers
exercise the
and
parking buildings
by,
either owned
leased
or
special
duties of
conservation officers.”
to,
of,
operated by,
or under the control
and
(1996)
Virginia Code
20-7-3
rounds
board,
any
or
municipality
commission or
help
out
law
avail-
the additional
enforcement
authority
municipality!.]”
created
resources, by
division of
able to the
natural
goes
provides
The statute
further and
that
providing that:
special parking
parking building
“such
lot or
[deputy
and
of
sheriffs]
The sheriffs
police
officers shall be vested with the
State, police
several counties of the
officers
arrests,
summonses, sign
to make
issue
com-
city
any
depart-
of
and
members of
request
plaints
capiases
and
the issuance of
public
vested,
safety
with-
ment of
shall be
...
shall not come within the civil
[but]
respective jurisdictions,
in their
with all
policemen’s
... or the
pension
service
of conservation
provisions[.]”
relief fund
requirement
any
without
officers
of
addi-
Special Fair
Police
Immediately upon
tional
or bond.
oath
any
any
making
executing
pro-
arrest or
(1997),
Under
provisions
under
natural re-
[the
cess
magistrate,
application
any
on the
statutes],
sources
each such officer shall
state,
any
county,
independent
officers of
report thereon to the
the divi-
[of
director
association,
agricultural
agri-
and mechanical
sion of natural resources].
society cultural
industrial association
state, may “appoint, a
this
suitable number
Boggess,
See
State
(1983)
persons
keeping
discreet
to assist
(discussing
S.E.2d 118
arrest
peace
any
society
officers).
during
time when
such
of conservation
holding
shall be
its annual or
fairs[.]”
other
6.School Zone Police
all fair
The statute
further
that
pro-
police
by magistrates
appointed
“shall have
vides,
“[e]very
duty,
part,
power,
in relevant
munici-
full
and it
shall be their
riots,
pality
plenary power
suppress
shall have
all
disturbances
breaches
appointment
peace
ordinance for
occur on
fair
such
officers,
thereof, during
special
police
grounds,
school zone
who
within one mile
held,
may,
controlling
being
direct-
-the
fairs are
time such
view,
may,
ing
upon designated
upon
any person
parts
traffic
arrest
who
at
avenues, roads,
streets,
ways
place
violating any
alleys
guilty
at or
such
time
State,
may pursue
law
and arrest
schools[.]”
near
statute states
of this
anywhere in
person
State[.]”
school
“shall be
with all
vested
zone
Palmer,
Justice,
Cleckley
supra,
Criminal
note 1 at 73.
*20
9.Special Weights
may
And Measures Police
apply
this
...
to the
within
State
governor
appoint
or citizens
such citizen
(d)
§ 47-1-1
provided
It
in W.Va.Code
is
may
company
railroad
of
State as such
(1996)’
weights
measures
that
thе words
or
designate,
special police
act
officers
as
every
of
weights
all
and measures
“means
company
...
...
for such railroad
and
kind,
weighing
and devices for
instruments
appoint
...
governor may
and commission
any appliance
acces-
measuring and
and
and
person
special
...
persons
such
or
as such
any or
instru-
with
all such
sories associated
every police
ap-
...
police officers
officer
ments
and devices.” Under W.Va.Code
...
a
pointed
shall be
conservator of the
(1996), the
1—S(q)(5)
state commissioner
47—
any part
peace within each
which
deputies
inspectors
and
of labor
his/her
situated,
may
...
of such railroad
special police powers, and
are “vested with
may
possess and
all the
he shall
exercise
arrest,
without
formal
authorized
[are]
powers
authority
...
are now or
warrant, any
[weights
of
and mea-
violator
may
conferred
hereafter
be vested
or
laws].”
sures
county ...
upon
a
sheriff of such
Police
10.Railroad
company
pay
railroad
shall
them
such
Virginia
pro
West
Code
pursuant
for all services rendered
them
that,
every passenger
of
vides
“the conductor
appointment.
to such
flagmen
employed on
car and
and brakemen
many railway
“If
understands that
tracks
one
powers
all
of a
car ...
have
such
shall
sparsely populated
for miles
traverse
areas
charge
of
peace
conservator of
while
miles,
readily apparent
it
upon
should be
provides
car[.]” The statute further
such
why
pow-
police
the state would authorize
every
“the
of
train of railroad
conductor
companies.”20
ers to railroad
cars,
have
of a
traction
all the
or
charge
peace
while in
of
conservator of
11.Local
of the Peace
Conservator
case of Marcuchi
In the
such car
train.”
Many of the rural and isolated communi-
W.Ry., 81 W.Va.
&
94 S.E.
Norfolk
is,
unincorporated.
That
ties
our state are
(1918),
indicated that a conser
the Court
qualified
which have not
under
communities
peace
vator
munici-
legal
the code to hold a
existence as a
prevent
peace,
breaches
Unincorporated
vary in
pality.
communities
persons breaching
peace
arrest
in his or
size,
average
population
probably
but
no
Moreover,
Marcuchi held
presence.
her
Many
than a
more
few hundred households.
company
authority granted
to railroad
unincorporated
are in re-
communities
personnel by code
61-3-41 included
infrequent
mote areas that
contact with
arrest,
warrant,
without
regular
agencies simply
law
be-
enforcement
presence,
in their
peace
breaches
cause of the remoteness of their locations.
It
under some
to ar
circumstances the
legisla-
primarily
for this reason that the
her
felony
rest for a
not committed in his or
unin-
ture has established method
Layne
v. C & O
presence.
In the case of
corporated communities can have access to
Ry.,
(1909),
it was
66 W.Va.
Any cоmpany using any ... rail- This railroad vator lying ... the actual system wholly partially road the sheriff the make Palmer, Justice, Cleckley supra, Criminal note 1 at *21 an individual to serve as local peace selection of Such local conservator of the peace. powers regu- the In the ease of have all the and conservator of duties of a Court, larly appointed deputy sheriff.... Hockman v. 138 W.Va. He (1953), shall act only as such local conservator it was held that latter S.E.2d 82 the unincorporated community the for which provision prohibits person taking code from he appointed, is and within a distance of position peace, of local conservator of the one mile from the boundaries thereof as person if such has not received the consent by county fixed ... [commission] ex- of, rejected by, county or has been com- cept pursuit may fresh he effect judge. circuit mission and/or anywhere county.... Any arrests in the county commission and circuit court person by arrested such local conservator by judge guided the code in the factors shall, speed, all convenient be turned determining should consider in whether sheriff, over to the regular or one of his appointment or not to consent to the of an' deputies.... peace. individual as local conservator of the 6-3-l(b)(2) (1993) § Virginia pro- Code Airport 12. Police vides that the commission circuit and airports “Law enforcement at in our state judge must be satisfied that an such may generally be carried out in one of three needed, appointment is ways: by municipal on-site or law funds, because of lack of sufficient agents, privately enforcement employed se- geographical unincorporated location of the curity, private security or a combination of community for which such conservator is municiрal and or law enforcement reason, good appointed, to be or other agents. [My] solely interest is concerned regular deputies sheriff and his ... are not of, with the creation and and duties proper policing sufficient to afford local private airport security.”22 community person such and that or 8-29B-4(a) (1998) provides: Code persons moving appointment any To enforce federal or state laws or such local conservator have made satisfac- regulations relating and airports rules tory arrangements compensate him for airport security any rules and his local services such conservator of regulations promulgated airport op- peace. erator, protect passengers, airport air personnel, airport aircraft and the and to provision exempts “Note that the latter Code preserve law and order in connection political entity or other from bear- therewith, airport operator shall have ing paying cost of local conservator of plenary power to make ar- peace. salary wages A an for such rangements airport police for one or more arranged by individual has to be the commu- officers.... nity, petitioned individual or individuals who appointment.”21. 8-29B-4(c) (1998) Unincorporated such In W.Va.Code it states communities are not entitled to have an un- part “[a]ny person appointed in relevant designated airport police limited number of local conservators of the ... as an officer shall, peace. provides only entering upon performance The statute two before duties, peace appointed qualify conservators of the of his in the same manner as Further, unincorporated community. required [deputy taking to one sheriff] of a incorporated community that if an ... filing does not of an oath of office Further, filing have a hun- population that exceeds fifteen of an official bond[.]” 8-29B^4(f) (1998) people, may only “[e]very dred it have one local con- Code states that peace appointed. airport police servator of the The law officer shall be trained in the carry enforcement of a local of firearms and shall ... a firearm conservator use peace duty.” are set out in 6-3- at all times while on Under West 1(b)(3) (1993), part: 8-29B-6 “at least one Palmer, Justice, Palmer, Justice, supra, Cleckley supra, Cleckley Criminal Criminal note 1 at 79. 1 at 81. note street, road present prior other must be boards
airport officer of, throughout the final to, adjacent passing ... point thoroughfare at the to- screening process prior to the passenger pur- through premises_ For this airport ... and aircraft at an boarding of an pose the officer shall be deemed *22 present shall continu- police officer such ... as to be a law-enforcement officer to being on aircraft ously until all doors such any area so committed within as- offenses aircraft has closed and such boarded are pow- may have and all the signed, exercise away boarding the area.” taxied from subject authority ers and and shall be to airport general powers of enforcement law requirements responsibilities and of all the 8-29B-5, in police out are set W.Va.Code a law-enforcement officer.... part: in which states police pro- campus adds that The statute jurisdiction under and any In area the firearms, carrying from unless hibited airport operator, or con- of the control carry a issued license to the have been state airport, pursuit of the nection with therefrom, any more individuals same. one or (1) all of police officer have
airport authority regularly a power and the Special Security 14. Officers county in deputy a this appointed sheriff of for State Premises enforcing criminal laws of the State § 5A-4-3 West Code authorizes (2) State; authority power full to and this secretary Department of the of Adminis- the any and all laws and rules enforce federal appoint “to fide residents of regulations relating airports, to air tration bona and baggage inspection, the passengers, security upon any act state to officers air- screening passengers of air and other premises owned or the state of leased (3) measures; security full and port jurisdiction Virginia and the under authority any and to enforce and all rules secretary!.]” provides the The statute fur- promulgated by airport regulations security “shall as ther that such officers regulations any and all enforce rules premises offenses committed on such have airport operator; promulgated exercise all the and authori- (4) packages, persons, to search subject responsibili- ty and shall be to all power to baggage containers and county.” a sheriff ties of persons.... arrest authority *23 concurrence, opinion, Justice Workman’s employees. direct commission This ably point why “doing the dissent all out arrangement successfully in a has worked area, nothing,” in the court is some- counties, including many years number of tolerate.) thing that this Court will not county Monongalia. my home Second, up judges, county it is to circuit Finally, I note that the dissent raises sev- commissions, sheriffs, Legis- points legitimate eral that I understand to be necessary, together if im- lature to work to ultimately I think concerns —but that these plement practical systems efficient legally are not persuasive. concerns For deliver efficient courtroom and courthouse examplе, I giving do not think that the security and bailiff services. If conflicts arrest, firearms, and use of force arise, circuit courts and this Court should not non-deputy employees working as se- parties be tolerant of who have not shown a curity personnel would seen the dissen- be willingness compromise coopera- and work separation ters as a violation of the tively. private “police unconstitutional Third, part our facilitate do this force,” security personnel guard- if the were cooperation, I think this needs to con- Court ing county garage building. a or office modifying eliminating Trial sider Court notes, As Justice Workman’s concurrence requirement “deputies” Rule Y’s ultimately this case turns on its facts. An present while court is in session. This fre- system excellent of court marshals in Putnam quently hardship already works a over- put place, filling has been a into particularly light worked sheriffs’ offices— longstanding vacuum created failure to deputies.” of the need for “road Modifica- meet court the sheriffs needs tion or elimination of Rule would allow V problem. Despite office. This is a statewide flexibility appropriate increased services arguments, existing the dissent’s law is provided by to be both and non- is, certainly system in not clear that this new deputy personnel, employees whether Therefore, entirety, impermissible. its this sheriff or the commission. iffs thorities cited lished (magistrate Fourth, I duty W.Va.Code, courts); W.Va.Code, provide note that in majority opinion, bailiff services is estab- 50-l-lU(a) addition to the 48-4-10(d) [1992] sher- au- within what the clear constraints of the law. approach. Court permitted has taken the least intrusive the new majority system sees to be as the I join approach operate [1993] (family law masters); Adm. R. Mag. 3(a) courts); (magistrate R.
Ct. Pract. & masters). (family
Proc. L. 17 Fam. law question
But I whether the sheriffs true “bailiff’ services
necessarily requirement translates into
that —-if the sheriff in fact does not they cannot be otherwise
those services —
provided.
notes
system
in West
to facilitate
Dostert,
prompt and efficient administration of
In
v.
166
State ex rel. Skinner
743,
(1981),
justice.”
Stephens,
v.
State ex rel. Lambert
278
624
we inter-
W.Va.
S.E.2d
807-08,
891,
802,
VIII,
6, together
490
preted
200 W.Va.
S.E.2d
896-
Article
with
Section
VIII,
Bagley
(citing
language
97
ex rel.
v.
in
State
relevant
contained Article
630, 634,
10,
Blankenship, 161 W.Va.
246 S.E.2d Section
as follows:
(1978)).
99,102
end,
Reorganiza-
To that
plain
apparent meaning
of these
judicial power
tion Amendment vested
may
is that the circuit court
exer-
sections
“solely” in
inferi-
the State
this Court and its
powers necessary
cise the administrative
hierarchy
used
or courts and created “a
to be
expeditious
“secure the convenient and
resolving
in
administrative
conflicts and
opera-
...
transaction of
business”. The
problems.”
ex rel. Frazier v. Mead-
State
control”,
phrases
“supervisory
“ad-
tive
ows,
65,
20, 28, 454
73
193 W.Va.
S.E.2d
head”,
business”,
ministrative
“division of
Const,
(1994);
VIII, §
art.
see W.Va.
expeditious
and “convenient and
transac-
operative
established
tion of such business”. These
The administrative structure
in
phrases
functions executive
na-
Reorganization
Amendment has been
describe
Frazier,
essence,
8,
supra,
language of article
analyzed by
ture.
In
this Court.
III,
30,
Sec.
Article
Reorganization
Arti-
Secs. 1 to
amended
13 of
1. The
Amendment rewrote
VIII, substituting
added Secs.
to 13 to Article IX.
cle
Secs. 1 to 15 for former
9
281
Ancillary
inherent
to this
administra
grants
10 are the
of execu-
6 and
sections
recognized
right to
power,
tive
we
a court’s
judiciary.
power within the
tive
in
legal resources
aid of its administra
utilize
759,
at 635.
at
278 S.E.2d
Id.
functions whenever a conflict arises be
tive
Lambert,
Recently,
supra,
in
this
judiciary and another branch of
tween the
inquiry concern
a fundamental
Court made
government and an amicable solution cannot
Lambert,
separation
doctrine and
ing the
be found.
Notes
notes statute supersede “shall not be officers deemed University College Police way peace any authority duty of other authorizing governing of uni- boards preserve law and order on such officers colleges campus po- appoint versities and Finally, premises.” it is stated under the officers, lice 18B-4-5 that no “shall statute officer presence makes clear that of such offi- carry danger- gun other supersede not be deemed to cers “shall weapon until have obtained ous he shall peace any way duty of other therefor[.]”24 license preserve officers to law and order on such “Thus, premises.” regular law enforcement Part III. jurisdiction with agents have concurrent CONCLUSION campus campus premises.”23 on police further 18B-4-5 The state and state constitution statutes campus very by major- officers have prohibit upheld action Therefore, opinion. respectfully I ity’s dis- preserve any premises law order jurisdiction governing majority opinion from the in this under the sent case. Palmer, Justice, supra, Cleckley governor police powers Criminal Office Services, Palmer, Emergency Cleckley note 1 at 83. see Justice, supra, Criminal note 1 at 49-65. police powers 24. For a discussion of the state, military special police forces of STARCHER, Justice, case, course, concurring: In the instant the sheriff apparently willingness ability asserts a (Filed 1998) Nov. provide proba- bailiff services. But that is majority opinion fully I concur with the bly everywhere. not the case If the sheriff I concurrence. and with Justice Workman’s services, not does one alterna- separately practical write to address several legally compelling tive to the sheriff to do so matters. employ is to others to the services. First, majority opinion, under the there is being I do not see this route as foreclosed security person- prohibition against no (Another alternative, majority opinion. being non-deputy employees of nel sheriff course, nothing. majority is to do But the department, being the sheriffs instead of