STATE of West Virginia ex rel. WEST VIRGINIA CITIZENS ACTION GROUP, an Incorporated Association of State Citizens and Taxpayers, Petitioner Below, Appellant, v. WEST VIRGINIA ECONOMIC DEVELOPMENT GRANT COMMITTEE; City of Wheeling, A Municipal Corporation; and Century Equities-Wheeling Victorian Outlet Mall, Inc., A Private Corporation, Respondents Below, Appellees.
No. 31125
Supreme Court of Appeals of West Virginia
Decided May 16, 2003.
580 S.E.2d 869
ALBRIGHT, Justice
Kanawha County Commission, Intervenor. Submitted March 11, 2003.
The essence of contract formation is, in the traditional formulation, a “meeting of the minds” of the contracting parties, or in the more accurate contemporary formulation, their manifestations of mutual asset to a bargained-for exchange of promises or performances. See Restatement (Second) of Contracts §§ 19-23 (Tent. Draft Nos. 1 7, 1973). The latter formulation makes plain what the former certainly contemplated but obscured, that the intentions manifested in negotiations rather than any had but not disclosed are controlling. Id. § 19, Comment c; id. § 21B. This being so, disputes about whether a contract has or has not been formed as a result of words and conduct over a period of time are quintessentially disputes about “states of mind,” since they involve not only the subjective intentions had by the several parties but what “states of mind,” what understandings, their manifestations of intention may have induced in others. These subjective states and objective manifestations of intention present interpretive issues traditionally understood to be for the trier of fact. See, e.g., Cram v. Sun Insurance Office, Ltd., 375 F.2d 670, 674 (4th Cir.1967). While there may of course be situations in which the manifestations of intention of both parties to be bound, or of either not to be bound, are so unequivocal as to present no genuine issue of fact, this will but rarely be so in protracted negotiations involving a “jumble of letters, telegrams, acts, and spoken words.” Restatement (Second) of Contracts, supra § 21A, Comment a. Ordinarily in such cases, the issue whether there has at any time been the requisite manifestation of mutual assent to a bargained exchange will be one of fact in genuine dispute so as to preclude summary judgment. See Cram v. Sun Insurance Office, Ltd., 375 F.2d at 674.
597 F.2d at 414-15.
In the present case, the manifestations of the understandings and intentions of the parties are not plainly unequivocal from the memorandum prepared by Martha R. Johnson. Additionally, the Johnsons themselves raise an intention issue and suggest that the controversy be resolved by looking outside the memorandum by asserting that the Conleys knew that they were to receive resubdivided lots. It is plain, on the other hand, that the Conleys are taking the position that they believed that they were to take lots according to the plat prepared prior to the resubdivision of Lot 7.
Given the nature of the factual development of the case thus far, the Court believes that, at the very least, further development of the evidence is desirable to clarify what the understandings and intentions of the parties were. In effect, the questions of meeting of the minds and mutuality should be resolved by the trier of fact after full development of the evidence. In light of this, the Court believes that summary judgment on these questions is inappropriate.
For the reasons stated, this Court believes that the judgment of the circuit court should be reversed, and this case should be remanded for further development.
Reversed and remanded.
Darrell V. McGraw, Jr., Attorney General, Katherine A. Schultz, Senior Deputy Attorney General, Stephen Stockton, Senior Assistant Attorney General, Jennifer Lea Stollings, Assistant Attorney General, Charleston, for the Appellees.
G. Nicholas Casey, Richard L. Gottlieb, Webster J. Arceneaux, III, Lewis Glasser Casey & Rollins, PLLC, Charleston, for the Intervenor, Kanawha County Commission.
Rosemary J. Humway-Warmuth, Joanna I. Tabit, Steptoe & Johnson, PLLC, Wheeling, for the City of Wheeling, Amicus Curiae.
Robert M. Bastress, Morgantown, for American Civil Liberties Union of West Virginia, Amicus Curiae.
Vincent Trivelli, Stuart Calwell, Law Offices of Stuart Calwell, PLLC, Charleston, for The Affiliated Construction Trades Foundation, Amicus Curiae.
Webster J. Arceneaux, III, Richard L. Gottlieb, Lewis, Glasser, Casey & Rollins, PLLC, for Marshall University Research Corporation; Our Jobs, Our Children, Our Future, Inc. d/b/a The Huntington Area Development Council; Tri-State Transit Authority and Metropolitan Huntington, LLC; Advantage Valley Partners, LLC; Putnam County Development Authority; and Putnam County Commission, Amicus Curiae.
The West Virginia Citizen Action Group1 (hereinafter referred to as “CAG“) appeals from the January 21, 2003, order of the Circuit Court of Kanawha County upholding the constitutionality of portions of
Notes
I. Statutory and Procedural Background
At the center of this dispute is the statutory method for selecting the membership of the Grant Committee. The nine-person committee is comprised of the following individuals:
the governor, or his or her designee, the secretary of the department of tax and revenue, the executive director of the West Virginia development office, three persons appointed by the governor from a list of five names submitted by the president of the West Virginia senate, and three persons appointed by the governor from a list of five names submitted to the governor by the speaker of the West Virginia house of delegates.
Pursuant to this statutory authorization, such a Grant Committee was selected and at its first meeting, the committee adopted a draft procedural rule delineating the criteria for considering the various submitted grant applications. The four-part standard upon which the projects were to be evaluated was: (1) the ability of the project to leverage other sources of financing; (2) job creation and retention; (3) promotion of economic development in the region; and (4) whether the project is in the public interest of the State. The enabling legislation provides that once the Grant Committee selects and certifies a list of projects, the list is not subject to alteration other than by legislative enactment. See
During various meetings, the Grant Committee considered 197 submitted projects. Public hearings7 were held, as required by statute, in connection with the grant applications. See
CAG filed a petition with this Court on September 3, 2002, seeking writs of mandamus and prohibition in connection with the Wheeling Project‘s approval and other activities undertaken by the Grant Committee.10 This Court issued a rule returnable to the Circuit Court of Kanawha County to permit development of a record and to address the issues raised in an expeditious manner.11 Following various hearings on this matter, the circuit court issued its memorandum order on January 21, 2003, through which the trial court ruled that the Grant Committee‘s singular consideration and approval of the Wheeling Project resulted in a flawed certification of that project for failure to meet an implied statutory requirement that multiple grant applications should be comparatively evaluated.12 The circuit court found no constitutional infirmities with regard to the appointment process for the Grant Committee or the legislation authorizing the Committee‘s actions.
CAG appeals from the decision of the circuit court, seeking a ruling of unconstitutionality with regard to both
Although we have determined that
II. Standard of Review
Our standard of review is de novo, given the questions of law raised that involve
III. Discussion
A. Separation of Powers
CAG, along with the American Civil Liberties Union of West Virginia (hereinafter referred to as the “ACLU“), as amicus curiae, strenuously assert that the appointment mechanism contained within the subject statute runs afoul of this state‘s separation of powers provision. That provision mandates that:
The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature.
Interwoven with its separation of powers argument is the corollary contention that the provisions of
1. Fundamental Construct
As we observed in State v. Huber, 129 W.Va. 198, 40 S.E.2d 11 (1946), in discussing the doctrine of separation of powers: “No theory of government has been more loudly acclaimed.” Id. at 209, 40 S.E.2d at 18. This fundamental17 construct of our system of government has been the subject of countless commentaries:
“This separation is deemed to be of the greatest importance; absolutely essential to the existence of a just and free government. This is not, however, such a separation as to make these departments wholly independent; but only so that one department shall not exercise the power nor perform the functions of another. They are mutually dependent, and could not subsist without the aid and co-operation of each other. Under the constitutions, the legislature is empowered to make laws; it has that power exclusively; the executive has the power to carry them by all executive acts into effect, and the judiciary has the exclusive power to expound them as the law of the land between suitors in the administration of justice. The legislature can do no executive acts, but it can legislate to regulate the executive office, pre-
scribe laws to the executive which that department, and every grade of its officers, must obey. The legislature cannot decide cases, but it can pass laws which will furnish the basis of decisions, and the courts are bound to obey them. The functions of each branch are as distinct as the stomach and lungs in our bodies. They are intended to co-operate; not to be antagonistic; they are functions in the same system; when each functionary does its appropriate work no interference or conflict is possible.”
State v. Harden, 62 W.Va. 313, 371-72, 58 S.E. 715, 739 (1907) (quoting Lewis’ Suth. Stat. Cons. § 2).
The United States Supreme Court in O‘Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356 (1933), articulated that the objective of separating the powers of government into three distinct branches was “to precludе a commingling of these essentially different powers of government in the same hands.” Id. at 530, 53 S.Ct. 740. Expounding further on our tripartite form of government, the high Court reasoned:
If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others—independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments. James Wilson, one of the framers of the Constitution and a justice of this court, in one of his law lectures said that the independence of each department required that its proceedings “should be free from the remotest influence, direct or indirect, of either of the other two powers.” 1 Andrews, The Works of James Wilson (1896), Vol. 1, p. 367. And the importance of such independence was similarly recognized by Mr. Justice Story when he said that in reference to each other, neither of the departments “ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.” 1 Story on the Constitution, 4th ed. s 530. To the same effect, The Federalist (Madison) No. 48. And see Massachusetts v. Mellon, 262 U.S. 447, 488 [43 S.Ct. 597, 67 L.Ed. 1078 (1923)].
289 U.S. at 530-31, 53 S.Ct. 740; accord Kilbourn v. Thompson, 103 U.S. 168, 191, 26 L.Ed. 377 (1880) (“It is ... essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other.“).
Addressing this state‘s separation of powers provision, we recognized in syllabus point one of State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981), that
Article V, section 1 of the Constitution of West Virginia which prohibits any one department of our state government from exercising the powеrs of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed.
As we acknowledged in Sims v. Fisher, 125 W.Va. 512, 25 S.E.2d 216 (1943), this Court has expressed “a policy of strong adherence to the several constitutional provisions relating to the separation of powers.” Id. at 524, 25 S.E.2d at 222.
2. Legislative vs. Executive Powers
In Manchin, we outlined the division of powers and responsibilities among the three branches of state government: “Generally speaking, the Legislature enacts the law, the Governor and the various agencies of the executive implement the law, and the courts interpret the law, adjudicating individual disputes arising thereunder.” 167 W.Va. at 168, 279 S.E.2d at 631 (citing
Similarly beyond dispute is the fact that the Legislature can play no role in the implementation of the laws it enacts. This Court‘s decision in Manchin squarely confronted the issue of legislative encroachment into powers reserved for the executive branch. The Legislature had sought to create for itself a “mechanism for legislative review of executive action” by conferring on a legislative committee the power to veto proposed agency rules. 167 W.Va. at 173, 279 S.E.2d at 633. In striking this mechanism as violative of the separation of powers, we observed that this “‘extra-legislative control device’ [wrongly] permits the Legislature to act as something other than a legislative body to control the actions of the other branches.” Id. at 173, 279 S.E.2d at 633; accord State ex rel. Meadows v. Hechler, 195 W.Va. 11, 462 S.E.2d 586 (1995) (finding separation of powers violation in legislation that sanctioned veto of agency regulations from committee inaction).
Underlying any encroachment of power by one branch of government is the paramount concern that such action will “impermissibly foster[] dominance and expansion оf power:”18 Manchin, 167 W.Va. at 177, 279 S.E.2d at 635-36. Applying that concern to the facts presented in Manchin, we observed that: “In effect, the executive exercise of discretion is replaced by committee exercise of discretion, increasing the role of the legislature at the expense of the executive.” 167 W.Va. at 177, 279 S.E.2d at 636. In addition to upsetting the balance of powers between the branches, we identified the risk that maximization of self-interest could result where the normal limits on discretionary power are no longer in place due to legislative involvement in an executive function. Id. at 178, 279 S.E.2d at 636.
3. Legislative Role in Implementing Subject Legislation
CAG argues that the Legislature, through its enactment of
To support its position, CAG relies primarily on authority that bans various state Legislatures from appointing legislative members to serve on executive agencies, boards, or commissions. See Greer v. State of Georgia, 233 Ga. 667, 212 S.E.2d 836 (1975) (declaring legislation unconstitutional that named certain legislators to governing body of World Congress Authority); Alexander v. State of Miss. ex rel. Allain, 441 So.2d 1329 (Miss.1983) (striking various statutes naming legislative members to executive offices including Board of Economic Development); State of N.C. ex rel. Wallace v. Bone, 304 N.C. 591, 286 S.E.2d 79 (1982) (striking legislation that authorized four legislators to serve on legislatively created Environmental Management Commission as violative of sep-
While the law is clear that legislators themselves cannot hold positions on executive agencies, boards, or commissions, the law is less сlear as to what role a state legislature can play in compiling a list of prospective appointees for an executive appointment. CAG relies heavily on the decision reached by the Kentucky Supreme Court in Legislative Research Commission ex rel. Prather v. Brown, 664 S.W.2d 907 (Ky.1984). Among the holdings in Brown was a ruling finding several statutes unconstitutional on separation of powers grounds that directed the governor to make appointments for executive positions from lists submitted by the Legislative Research Commission, a small group of office-holding legislators. The Kentucky Supreme Court concluded that “[t]he General Assembly has attempted to do indirectly what it cannot do directly.” Id. at 923-24. CAG contends that the Brown decision is apposite and that this Court should follow the result reached in that case.
The Grant Committee rejects Brown as analogous authority, arguing that a separation of powers violation does not occur in the instant case based on the simple fact that the governor, despite a legislatively prepared slate of prospective appointees, retains and exercises the constitutional right of appointment. Focusing on the fact that the governor chooses from the names submitted to him by the house speaker and senate president and emphasizing that the governor has the implied right to reject each name on a submitted list and to continue to do so until a list of suitable names appears, the Grant Committee maintains that the statutory appointment process does not run afoul of the separation of powers provision.
In its attempt to distinguish Brown from the case sub judice, the Grant Committee states that the Kentucky governor brought the lawsuit challenging the various statutes at issue in that case; notes that the decision was issued in a “highly charged” “political climate,”19 and suggests that the precedential value of that decision has been called into doubt based on recent decisions issued by that same court. Citing Prater v. Commonwealth of Kentucky, 82 S.W.3d 898 (Ky.2002), the Grant Committee contends that, under a legal scenario similar to Brown, the Kentucky Supreme Court concluded that the “[l]egislature has not attempted to appoint administrative officers, nor has it completely denied the appointive function of the Executive.”20 Id. at 909. The Grant Committee‘s
In contrast to the issues presented in Brown, Prater did not involve separation of powers violations flowing from legislative involvement in the executive appointment process. Instead, the issue in Prater was whether a statute establishing a “prerelease probation program” impermissibly conferred the executive power of parole upon the judiciary, thus violating the state‘s separation of powers provisions. 82 S.W.3d at 898. After rejecting the argument that the “executive branch‘s ‘participation’ in the trial court‘s prerelease probation decision in the form of eligibility determinations” somehow served to eliminate the separation of powers issue being considered, the Kentucky appellate court referred, for analytical purposes, to its “prior case law addressing the constitutionality of legislative involvement in the executive‘s appointment authority.” Id. at 907.
Distinguishing the situation presented in Brown where both direct and indirect legislative appointments were held unconstitutional, the court in Prater cited two decisions upholding gubernatorial appointment to administrative bodies “from lists of persons submitted by third parties with an interest in the composition of those bodies.” Id. at 908. Significantly, neither of those two cases, Kentucky Association of Realtors, Inc. v. Musselman21 and Elrod v. Willis,22 involved the troubling and more serious issue of legislative involvement in the appointment process. Both of those cases concerned entities other than the state legislature submitting lists of prospective board members. When the legislature confines itself to the permissible function of establishing the parameters of executive appointment without injecting itself directly in the process, as the court in Prater explained, there is no encroachment upon the “exercise [of] the executive power of appointment.” 82 S.W.3d at 909.
Crystalizing that it is the legislative involvement in the appointment process which prevents a challenged statutory method of appointment from passing constitutional muster, the court in Prater observed:
[T]here is a fundamental and critical difference between the statutes held constitutionally flawed in LRC v. Brown and the statutes proved as constitutionally valid in Elrod v. Willis.... The statutes in LRC v. Brown granted the General Assembly continuing power, either directly through its leadership or indirectly through the LRC (which we recognized was not an independent agency but an arm of the legislature), to require the Governor to appoint to specified commissions persons who were nominees of the legislature. This transgressed the mandate in Section 27 of our Kentucky Constitution that “each” department of government shall “be confined to a separate body of magistracy,” and in Section 28 that “[n]o ... persons, being of one of those departments, shall exercise any power properly belonging to either of the others.” But the statute presently in question, as in the Elrod case[], gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position through participation of an organization, the Kentucky Association of Realtors, which is independent of legislative control.
82 S.W.3d at 908 (quoting Musselman, 817 S.W.2d at 216-17) (emphasis supplied).
In seeking to bolster its position, the Grant Committee erroneously attributes a statement to Prater that, in actuality, emanates from Elrod. See 203 S.W.2d 18. Elrod involved a statute authorizing the Kentucky governor‘s appointment of individuals to the Disabled Ex-Servicemen‘s Board from a list submitted by the American Legion. The reason the Kentucky Supreme Court was able to declare in Elrod that the legislature had “not attempted to appoint administrative officers, nor has it completely denied the appointive function of the Executive” can be found in the very next sentence of that opin-
The West Virginia Legislature,24 under authority of
In clear recognition of this Court‘s responsibility to enforce the constitutional constraints imposed upon the separate branches of government and in adherence to our longstanding practice of strictly construing the separation of powers provision, we hold that, due to the resulting encroachment on the executive power of appointment, the provisions of
4. Governor‘s Powers of Appointment
In addition to violating the separation of powers provision of this state‘s constitution, CAG maintains that the subject legislation violates the appointments provision of the constitution, which provides that:
The governor shall nominate, and by and with the advice and consent of the senate, (a majority of all the senators elected concurring by yeas and nays), appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and no such officers shall be appointed or elected by the legislature.
Finding the reasoning employed in Craig v. O‘Rear, 199 Ky. 553, 251 S.W. 828 (1923), to be persuasive, the lower court determined that the Grant Committee members were not officers of the state. At issue in Craig was legislation that created an eight-person commission whose members were selected by legislative officers for the limited purpose of selecting sites for two schools. In addressing a separation of powers issue, the Court in Craig observed: “[P]ractically all of the courts hold that mere temporary agents appointed to perform a particular task, who
What both the trial court and the Committee overlook in characterizing the Grant Committee members as temporary agents is the discerning consideration of whether those members are cloaked with authority to exercise the sovereign power of the state.26 In State ex rel. Key v. Bond, 94 W.Va. 255, 118 S.E. 276 (1923), we recognized that
[a]s a general rule it may be stated that a position is a public office when it is created by law, with duties cast on the incumbent which involve an exercise of some portion of the sovereign power and in the performance of which the public is concerned, and which are continuing in their nature and not occasional or intermittent. But one who merely performs the duties required of him by persons employing him under an express or implied contract, though such persons themselves be public officers, and though the employment be in or about public work or business, is a mere employee.
Id. at 260, 118 S.E. at 279 (emphasis supplied).
By limiting its analysis to circumstances such as salary, appointment length, oath taking, and bond requirements, the lower court failed to fully analyze this issue. Two additional factors that we discussed in concluding that the chief clerk employed by the Secretary of State in Bond was not a public officer were the absence of job duties prescribed by law and the employee‘s lack of independent power or authority over the exercise of her job duties. 94 W.Va. at 260-61, 118 S.E. at 279. Despite the absence of certain indicia of public office, the Grant Committee members are clearly vested with authority to exercise independent judgment and discretion. The issuance of revenue bonds as a result of the Committee‘s actions illustrates the fact that the Grant Committee is acting on behalf of the state in performing its duties. Further evidence that the Committee has been given authority to make critical decisions invoking the sovereign power of the state is gleaned from the fact that once the Committee certifies its list identifying the selected projects, those projects are not subject to alteration. See
In view of the fact that the Grant Committee members do have statutorily prescribed job duties; their job description necessarily reposes the members with independent decisionmaking authority and discretion; and through the exercise of their job description the members are permitted to make financial decisions that consequently have an effect on the availability of both present and future state lottery funds, we are compelled to conclude that the Commit-
5. Reconstitution of the Committee
Based on clear violations of both the separation of powers provision and the appointments provision, the Grant Committee will have to be reconstituted, assuming the Legislature wishes to pursue its stated plan of using the Grant Committee for the purpose of expending state moneys for economic development. Should the Legislature choose to amend the subject legislation to cure the defects, the Legislature should repose the duty of filling the six positions previously chosen27 through the legislative submission process exclusively in the executive branch, with or without confirmation by the Senate, as the Legislature shall determine.28 We suggest that the Grant Committee members should be required to take an oath of office and to post a bond. While separation of powers concerns prevent the direct involvement of the Legislature in the appointment process, we wish to make clear that individual legislators, including its constitutional officers, as well as any citizen of this state, may offer the appointing executive suggestions regarding the Committee‘s membership without violating in any respect the constitutional prerogatives of the executive branch of government.
B. Delegation of Legislative Power
1. Circuit Court‘s Ruling
CAG argues that the circuit court erred in determining that the Legislature‘s grаnt of authority to the Committee was not an unconstitutional delegation of its powers in violation of
Looking first to State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969), the trial court noted that this Court upheld a broad grant of discretion to the Housing Development Fund concerning discretionary determinations of who should receive loans designated for “persons and families of low and moderate income.” After recognizing that “[t]he delegation by the legislature of broad discretionary powers to an administrative body, accompanied by fitting standards for their exercise, is not of itself unconstitu-
The legislature enacted the law here in question and has not delegated to the Fund any purely legislative authority. It has, perhaps as a matter of absolute necessity, clothed the Fund with a power and duty, in a limited area, to exercise a degree of discretion or judgment in determining who are ‘persons and families of low and moderate income.’ The legislature has not failed to set forth guidelines or standards to guide the Fund in the exercise of its judgment or discretion in this limited area. We note that the phrase ‘low and moderate income’ is used conjunctively rather than disjunctively. By legislative definition ‘persons and families of low and moderate income’ are encompassed in a single definition embraced in Section 3(8).... 31
153 W.Va. at 650, 171 S.E.2d at 553 (emphasis supplied and footnote added).
When the Housing Development Fund Act was amended in 1973, the Act was again challenged on grounds of improper legislative delegation. See State ex rel. W. Va. Hous. Dev. Fund v. Waterhouse, 158 W.Va. 196, 212 S.E.2d 724 (1974). Based on a new definition of рersons qualifying for housing assistance, we were asked in Waterhouse to determine whether the Legislature had failed to provide proper guidance for identifying which persons qualified for housing assistance.32 Noting that “great leeway is allowed the legislature in setting forth guidelines or standards,” we found the following definition of eligibility “adequate to guide the Housing Fund in its deliberations and [to] suppl[y] the necessary standards:” ” Persons who because of age or physical disability are found and determined by the housing development fund, by resolution, to require residential housing of a special location or design in order to provide them with sanitary, decent and safe residential housing.” Id. at 213-14, 212 S.E.2d at 734 (quoting
In the third West Virginia case that the trial court considered, State ex rel. Marockie v. Wagoner (Wagoner II), 191 W.Va. 458, 446 S.E.2d 680 (1994), we examined whether the Legislature set forth adequate standards in giving the school building authority discretion to issue bonds and to choose which projects should be funded. Id. at 469, 446 S.E.2d at 691. Likening the discretion at issue to that considered in Copenhaver, we held that “the legislature out of necessity gave the SBA certain discretionary powers and provided sufficient guidelines to guide the SBA in its exercise of discretion.” Id.
The circuit court rejected the two cases relied upon by CAG as analogous authority, finding those decisions to be inapposite given the delegations of broad statutory authority extended in those decisions. See Douglas v. Judge, 174 Mont. 32, 568 P.2d 530 (1977); In re Initiative Petition No. 332, 776 P.2d 556 (Okla.1989). In Douglas, the Montana Supreme Court found constitutionally deficient a legislative standard that based the distribution of loan funds to farmers and ranchers “for any worthwhile project for the conservation, management, utilization, development, or preservation оf the land, water, fish, wildlife, recreational and other renewable resources in the state.” 568 P.2d at 534 (emphasis supplied). Observing that “the only limit on the power to loan money for a certain project is the Board of Natural Resources and Conservation‘s subjective determination of whether a project is worthwhile,” the Court concluded that the statute at issue failed to comply with its previously stated test for judging “the sufficiency of guidelines laid down by legislative enactments.” Id. at 534-35. Those guidelines included the following parameters:
‘[I]t is essential that the Legislature shall fix some standard by which the officer or board to whom the power is delegated may be governed, and not left to be controlled by caprice.’ “We agree with this statement of the law and go further by saying that the standard must not be so broad that the officer or board will have unascertainable limits within which to act.”
Id. at 534 (quoting Bacus v. Lake County, 138 Mont. 69, 354 P.2d 1056, 1062 (1960) and State v. Stark, 100 Mont. 365, 52 P.2d 890, 892 (1935)).
At issue in the Oklahoma decision of In re Initiative was proposed legislation that gave the Lottery Commission “total discretion to transfer funds to the ‘proper state accounts’ to benefit ... broad public purpose categories.” 776 P.2d at 557. Other than identifying the public purposes in general fashion as “‘education, economic development and job creation, programs for the elderly, the handicapped and the needy,‘” “there was no legislative specification as to which agencies and which programs specifically would benefit and to what extent.” Id. Concluding that the subject legislation constituted “fiscal policy making in its most basic form,” the Court struck the legislation as being a wrongful delegation of legislative function. Id.
In determining that the West Virginia Legislature had set forth sufficient guidelines to withstand a constitutional challenge on wrongful delegation grounds, the trial court looked to the statement of purpose provided in the statute:
The Legislature finds and declares that in order to attract new business, commerce and industry to this state, to retain existing business and industry providing the citizens of this state with economic security and to advance the business prosperity of this state and the economic welfare of the citizens of this state, it is necessary to provide public financial support for constructing, equipping, improving and maintaining economic development projects, capital improvement projects and infrastructure which promote economic development in this state.
Based on this statutory language, the trial court found that the Grant Committee “selects the recipients of public monies based on statutory criteria,” while acknowledging that those “recipients are chosen on the basis of somewhat broad statutory prescriptions.” Likening the statutory grant of discretion as similar to that at issue in Wagoner II, the
2. Lack of Adequate Statutory Guidance
As we announced in syllabus point three of Quesenberry v. Estep, 142 W.Va. 426, 95 S.E.2d 832 (1956):
As a general rule the Legislature, in delegating discretionary power to an administrative agency, such as a board or a commission, must prescribe adequate standards expressed in the statute or inherent in its subject matter and such standards must be sufficient to guide such agency in the exercise of the power conferred upon it.
In comparison to the statutory guidance given to the school building authority in Wagoner II, we cannot concur with the trial court‘s ruling that the statutory guidelines provided in
(a) It is the intent of the Legislature to empower the school building authority to facilitate and provide state funds for the construction and maintenance of school facilities so as to meet the educational needs of the people of this state in an efficient and economical manner. The authority shall make funding determinations in accordance with the provisions of this article and shall assess existing school facilities and each facility‘s plan in relation to the needs of the individual student, the general school population, the communities served by the facilities and facility needs statewide.
Whereas the statute in Wagoner II gave a comprehensive listing of funding standards along with a clear statement of legislative intent, thereby avoiding the concern raised in Douglas that caprice would control the decision making process in the absence of clear guidelines, the statute currently under scrutiny contains no comparable guidance. See 568 P.2d at 534. And, unlike the specificity included in that statute at issue in Wagoner II,34 the State Lottery Act provisions at issue here contain only the broadest statement of legislative intent and fail to include even a hint of standards for the Grant Committee‘s use in exercising its statutorily specified duties. See
To be clear, we do not imply a need to return to the days when courts sometimes imposed onerous requirements on the legislative and executive departments, thereby limiting the legislative branch‘s capacity to assign functions to the executive branch with only broad directives for implementing public policy. Nonetheless, the Legislature must articulate with sufficient clarity its public policy objectives to permit the executive department to effectuate those policy objectives and to educate the public as to the legislature‘s intentions.35 We made clear in Polan that the Legislature cannot “grant ... unbridled authority in the exercise of the power conferred upon ... [an administrative agency].” Syl. Pt. 2, in part, 190 W.Va. at 277, 438 S.E.2d at 309.
At the core of CAG‘s contention is the fact that the Committee is authorized to select largely undefined projects without the benefit
All of these validly raised objections serve to further underscore this Court‘s grave responsibility to carefully evaluate the constitutional imperatives implicated by the legislative plan to effect economic development through the statutory mechanism outlined in
In this Court‘s opinion, the legislation at issue has conferred “uncontrolled discretion” upon the Grant Committee by virtue of the lack of legislative guidance provided for determining the bases by which the grant applications should be considered. See Polan, 190 W.Va. at 280, 438 S.E.2d at 312. Accordingly, we hold that when an enabling statute such as
While we do not intend to identify what those standards should be—as that is a legislative determination—we emphasize that to withstand constitutional scrutiny the Legislature must provide the Committee with sufficient guidance so that the Committee‘s allocation decisions can be made with a clear understanding of the type of contemplated economic development it should be seeking to fund. As it stands now, the Legislature has failed to instruct the Committee even as to the general nature of projects which are encompassed within the statutory purview of economic development.37 In short, suitable legislative standards for achieving the laudable goal of economic development have simply not been provided.
C. Undertaking State Debt and Extending State‘s Credit
Another ground upon which CAG challenges the legislation at issue involves the contention that
1. Article X, Section 4
CAG argues that the legislation at issue is in contravention of the constitutional provision stating that “[n]o debt shall be contracted by this State.”
Focusing on the distinction between an involuntary tax which is paid under compulsion and the voluntary payment of fees or costs, we upheld legislation authorizing a portion of proceeds from the sale of alcoholic beverages to pay off bonds issued to finance buildings utilized by certain state agencies and departments. See State ex rel. State Bldg. Commn. v. Moore, 155 W.Va. 212, 234, 184 S.E.2d 94, 107 (1971). As in O‘Brien, the constitutional provision proscribing debt was avoided because the bonds at issue were not being paid for through imposition of a tax, but instead “from the action of the members of the public who, on a wholly voluntary basis, purchase alcoholic liquors from the state.” Id. at 234, 184 S.E.2d at 107.
Both Moore and O‘Brien fall into that category of cases, referred to as the “special fund doctrine” decisions, where challenged legislation has been determined not to be violative of article ten, section four based on the non-involvement of the state‘s general tax revenues. State ex rel. Hall v. Taylor, 154 W.Va. 659, 670, 178 S.E.2d 48, 55 (1971), overruled on other grounds by State ex rel. Resource Recovery-Solid Waste Disposal Auth. v. Gill, 174 W.Va. 109, 111, 323 S.E.2d 590, 592-593 (1984). In explaining this doctrine, we stated:
“[I]t has generally been held that an obligation payable from a special fund created by the imposition of fees, penalties, or excise taxes, and for the payment of which the general credit of the state is not pledged and resort may not be had to property taxation, is not a debt within the meaning of constitutional debt limitations. Such a limitation applies solely to that arising from a general levy and not excise taxes.”
Id. at 670-71, 178 S.E.2d at 55 (quoting 49 Am.Jur. States, Territories, and Dependencies, § 67). Acknowledging that a precise definition of the “special” or “separate” fund doctrine is difficult, we observed in Taylor that it is
uniformly held, however, that the doctrine cannot be applied to a fund which is created and maintained, in whole or in part, by general tax revenues, for the reason that such would clearly violate the purpose and intent of constitutional provisions such as that involved in this case [art. X, § 4]. The basic intent аnd purpose of such constitutional provisions is to prohibit any legislative act which would bind subsequent legislatures to make appropriations of moneys in subsequent fiscal years.
154 W.Va. at 672-73, 178 S.E.2d at 56.
In upholding the subject legislation with regard to the inhibitory debt provisions of section four of article ten, the circuit court looked to this Court‘s rulings in State ex rel. Marockie v. Wagoner (Wagoner I), 190 W.Va. 467, 438 S.E.2d 810 (1993), overruled on other grounds by State ex rel. W. Va. Regl. Jail Auth. v. W. Va. Inv. Mgt. Bd., 203 W.Va. 413, 421, 508 S.E.2d 130, 138 (1998). Wagoner I concerned the constitutionality of issuing revenue bonds for school building fund purposes to be paid from a portion of the previously established consumer sales tax receipts. Through that decision, we confirmed the well-established principle that “[s]ection 4 of Article X of the West Virginia Constitution ... does ... [not] preclude the issuance of revenue bonds which are to be redeemed from a special fund.” Id. at 468, 438 S.E.2d at 811, syl. pt. 1, in part (quoting Syl. Pt. 6, Winkler v. State of W.Va. Sch. Bldg. Auth., 189 W.Va. 748, 434 S.E.2d 420 (1993)). In striking down the designated special revenue fund created from consumer sales tax revenues in Wagoner I, we clarified that:
The Legislature may not designate funds that will be used to liquidate a revenue bond issue out of a current tax source that flows into the general revenue fund. If this practice were permitted, then a debt would be created that would burden the existing general revenue fund in violation of Section 4 of Article X of the West Virginia Constitution.
Syl. Pt. 2, Wagoner I, 190 W.Va. at 468, 438 S.E.2d at 811.
The Legislature responded to the constitutional impediment recognized by the Wagoner I ruling and amended
This method of funding the School Building Authority‘s revenue bonds does not violate section 4 of article X of the West Virginia Constitution since the monies allocated to the school building debt service fund are a new revenue source and since the legislature specifically provided in
W.Va.Code, 29-22-18 [1990 and 1994] that the net profits from the West Virginia Lottery are not to be treated as part of the general revenue of the State.
Syl. Pt. 3, in part, Wagoner II, 191 W.Va. at 462, 446 S.E.2d at 684.39 We noted that while the lottery profits were initially made part of the general revenue fund, beginning in 1990 those funds were specifically designated for specified purposes and the Legislature expressly mandated that the lottery revenues “shall not bе treated ... as part of the general revenue of the state.” Id. at 465-66, 446 S.E.2d at 687-88 (quoting
In concluding that the subject legislation does not violate article ten, section four, the circuit court applied the principles discussed in the Wagoner decisions, as well as our earlier decisions in O‘Brien, Taylor, and Moore. To reach its ultimate determination that the “State‘s general revenues are not implicated” by the subject legislation, the circuit court first examined whether the “special revenue fund” doctrine would apply. Looking to the statutory provisions at issue, the lower court determined that
Based on all of these factors, we are convinced that the financing mechanism established for payment of the revenue bonds that will be issued in connection with the selected grant projects properly comes within the “special revenue fund” doctrine. Given the Legislature‘s carefully constructed financing mechanism, we do not find any basis for concluding that the bond repayment schema under consideration can negatively affeсt the fiscal integrity of the state.40 We reach this conclusion based on the fact that the bonds will not be satisfied out of general revenue appropriations. Accordingly, the concerns underlying the provisions of article ten, section four are not implicated by the subject legislation.
2. Article X, Section 6
CAG argues that the subject legislation violates the provisions of article ten, section six by wrongly extending public aid for the benefit of private interests. The pertinent language of this constitutional provision provides: “The credit of the state shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the state ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person.”
Section six of article ten was made a part of our state constitution to avoid a specific historical problem encountered by Virginia:41
The purposes of the section [art. X, § 6] are well known, being to guard against the payment, were fresh in the minds of the framers of that Constitution. Numerous suits ending in heavy judgments and costs had been prosecuted against the commonwealth; illiberal contracts and guaranties of enterprises had been made by governmental agencies detrimental to her interests; public officers and agencies had not been always zealous and careful in the conduct of public affairs; and juries leaned toward the individual as against the commonwealth.
Id. at 188-89, 153 S.E. at 306-07. While we find no constitutional impediment to the statute under consideration based on sections four and six of article ten of our state constitution given long standing precedent governing the use of the “special revenue” source of funding, the historical underpinnings of these sections nonetheless maintain an illuminating degree of relevance with regard to the favoritism concerns raised by CAG in this action. We cannot but note that the admonitions of our forefathers concerning the potential unfairness involved through the support of some “internal improvements” to the exclusion of others, still have continuing merit today.
State ex rel. Dyer v. Sims, 134 W.Va. 278, 289-90, 58 S.E.2d 766, 773 (1950), rev‘d on other grounds, 341 U.S. 22, 71 S.Ct. 557, 95 L.Ed. 713 (1951); accord State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 759, 143 S.E.2d 351, 364 (1965) (recognizing that article ten, section six “was inserted in the Constitution primarily to prevent the practice which obtained earlier in Virginia of lending the state‘s credit to counties or to private internal development projects such as railroads, canals, toll roads and turnpikes“).
The objective of section six of article ten, like that of section four of that same article, is to protect the fiscal integrity of the state through the stated means of “restricting the Legislature‘s ability to create long-term debt.” Winkler, 189 W.Va. at 755, 434 S.E.2d at 427 (citing Gill, 174 W.Va. at 111, 323 S.E.2d at 592-593). For essentially the same reasons the subject legislation does not implicate the concerns at issue in section four of article ten, it fails to invoke the credit or debt concerns at the center of section six. As the circuit court aptly determined: “Since the bonds are required to be repaid from the Economic Development Project Fund, a special revenue fund, and not out of compulsory tax payments, the credit of the State is not implicated.” The bond financing and repayment provisions delineated in
In arguing that article ten, section six is violated based almost entirely on whether the legislation at issue serves a public purpose, CAG overlooks the provision‘s primary objective of securing the state‘s fiscal integrity. While it is axiomatic that legislative appropriations must serve a public purpose,42 that is not the constitutional concern, as discussed above, which article ten, section six is aimed at safeguarding. Nonetheless, the law is well established with regard to the public purpose doctrine: “A legislative declaration of purpose, while not conclusive, is entitled not only to respect but to a prima facie acceptance of its correctness.” Syl. Pt. 6, Waterhouse, 158 W.Va. at 197, 212 S.E.2d at 726. Moreover, “[a] legislative determination of what is a public purpose will not be interfered with by the courts unless the judicial mind conceives it to be without reasonable relation to the public interest.” Gainer, 149 W.Va. at 750, 143 S.E.2d at 359.
The Legislature has provided a clear statement of the public purpose which it seeks to serve through the provisions of
Rather than being static in nature, the public purpose doctrine, because of its inherent responsiveness to societal needs and demands, is ever changing: “What constitutes a public purpose varies with changing conceptions of the scope and function of government. As governmental activities increase by reason of the growing complexity of various phases of society, the concept of ‘public purpose’ expands proportionately.” Waterhouse, 158 W.Va. at 215, 212 S.E.2d at 735. Addressing both the fluidity of the public purpose doctrine and how economic development fits into that doctrine, the South Carolina Supreme Court articulated:
“Times change. The wants and necessities of the people change ... On the one hand, what could not be deemed a public use a century ago may, because of changed economic and industrial conditions, be such today.”
“The consensus of modern legislative and judicial thinking is to broaden the scope of activities which may be classed as involving a public purpose. 37 Am.Jur., Municipal Corporations, Sec. 132. It reaches perhaps its broadest extent under the view that economic welfare is one of the main concerns of the city, state and the federal governments.” [Emphasis supplied].
Nichols v. S.C. Research Auth., 290 S.C. 415, 351 S.E.2d 155, 161 (1986) (additional citations omitted); see also State ex rel. Brown v. City of Warr Acres, 946 P.2d 1140, 1146 (Okla.1997) (Summers and Watt, J., concurring) (observing that “[w]hether a sufficient public purpose exists behind a city‘s expenditure of a public money for an economic development plan should be measured by contemporary economic challenges faced by municipalities“).
While legislative action is required to serve the public, rather than private interests, the realization of incidental benefits by private entities as a result of legislative efforts does not render the legislation unconstitutional for lack of a public purpose. As the Oklahoma Supreme Court remarked in Warr Acres:
Municipalities today compete on a national-wide level to аttract new industry into their locality. A city cannot compete with other cities or even other states if other cities and states are competing with inducements devised under contemporary economic development plans.... This has been recognized in other states, as courts have construed public purpose requirements for the expenditure of public funds to encompass ever changing public needs and adapt to the ever increasing competition for industry development. Economic development plans devised to provide gainful employment, improve living conditions, attract industry and advance the economy, like the plan at issue here, in which the public benefits greatly outweigh the incidental benefit to a private person or corporation have been upheld.
Id. at 1148 and cases cited therein (Summers and Watt, J., concurring) (emphasis supplied).
Many years ago this Court addressed the “broad sphere of permissible governmental activity in areas where the Legislature determines that government action is a necessary supplement to private enterprise to alleviate social problems.” State ex rel. City of Charleston v. Coghill, 156 W.Va. 877, 881, 207 S.E.2d 113, 116 (1973). In ruling upon enabling legislation authorizing the City of Charleston to determine the amount of space in a public parking facility which would be leased to a private enterprise, this Court upheld public parking as a validly declared public purpose where the statement of legislative intent included the objective of “fostering the development of commerce and business within municipalities.” Id. at 880, 207 S.E.2d at 116 (quoting
although a parking facility designed for an acknowledged public purpose is constitutional, even though it confers ancillary and incidental benefits upon private persons, a parking facility which has as its primary and dominant purpose the conferring of private benefits, with only ancillary public benefits, would be an unconstitutional use of authority....
156 W.Va. at 884, 207 S.E.2d at 118. This Court has similarly upheld various legislative acts against public purpose challenges despite the existence of incidental benefits to private interests. See Copenhaver, 153 W.Va. at 650, 171 S.E.2d at 554 (upholding West Virginia Housing Development Fund legislation enacted to provide public housing assistance); Gainer, 149 W.Va. 740, 143 S.E.2d 351 (upholding statute authorizing reimbursement of public utilities for relocation costs necessitated by highway construction on public purpose grounds against challenge of unconstitutionally extending state‘s credit); State ex rel. County Court of Marion Co. v. Demus, 148 W.Va. 398, 135 S.E.2d 352 (1964) (upholding Industrial Development Bond Act providing for issuance of self-liquidating bonds against challenge that legislation constituted an indirect granting of credit to private corporation); State ex rel. W. Va. Bd. of Educ. v. Sims, 139 W.Va. 802, 81 S.E.2d 665 (1954) (upholding legislation granting paid sabbatical leave to faculty of state educational institutions on public purpose grounds, while recognizing incidental personal benefit to faculty); State ex rel. Bd. of Govs. of W.Va. Univ. v. Sims, 134 W.Va. 428, 59 S.E.2d 705 (1950) (directing state auditor to pay medical costs of injuries incurred by student athlete in intercollegiate contest and finding public purpose in statute authorizing discretionary payment of such costs); State ex rel. Bd. of Govs. of W.Va. Univ. v. Sims, 133 W.Va. 239, 55 S.E.2d 505 (1949) (upholding legislation authorizing government pensions, finding that public benefit outweighed any ancillary private benefit).
In ruling on the public purpose of the economic development at issue, the circuit court opined:
The legislature apparently believes that downtown redevelopment districts will promote the vitality of retail business areas within municipalities, serve as an effective means for restoring and promoting retail and other business activity within said districts, will benefit municipalities by increasing the tax base within said downtown redevelopment district and will stimulate economic growth and job creation. While the Court cannot say that all of the anticipated results will necessarily flow from the creation of downtown redevelopment districts, it can be said that all of these stated purposes serve legitimate public purposes. (citation omitted)
Like the circuit court, we find that the Legislatively declared objective of economic development is a valid public purpose, deserving of both judicial respect and occasion for the desired economic development to take place. Accordingly, we find no basis for interfering with the subject legislation on public purpose grounds.
D. Reevaluation of Projects
Through the record developed below, the circuit court found that the projects selected by the Grant Committee were properly chosen pursuant to the evaluative criteria adopted by the Committee. Because we have found a constitutional basis for requiring the reconstitution of the Committee, as well as a need for statutory inclusion of legislative standards for use in evaluating submitted projects, a newly comprised Committee will have to reconsider those previously approved projects and those submitted, but unapproved, applications against such standards upon their adoption.44 Given the need to individually reconsider the grant applications,45 it would be imprudent for this Court to comment on the merits of any of those projects. We do note, however, that
IV. Conclusion
Based on the foregoing, we conclude that the appointment mechanism for the Grant Committee contained in
Assuming that the Legislature desires to proceed with this statutory approach of encouraging economic development, it is incumbent upon the Legislature to amend the subject legislation to provide for the executive appointment of the members of the Grant Committee without use of a submitted list of nominees from the presiding officers of the two houses of the Legislature and to further provide the necessary guidance in the form of legislative standards that will enable the Committee to perform its statutory task of reviewing and selecting among the submitted project applications in accord with the announced legislative objective of economic development.
Given the need for legislative action to effect the amendments necessary to correct the constitutional infirmities recognized in this opinion, we hereby direct the entry of the necessary order and the issuance of the mandate pertaining to this decision forthwith.
Affirmed, in part, Reversed, in part.
McGRAW, Justice, concurring, in part, and dissenting, in part.
With that portion of the majority‘s opinion which holds unconstitutional the mechanism by which six members of the Grant Committee are appointed, under
Additionally, without hesitation, I respectfully dissent from the majority‘s holding that the instant statute violates the delegation of powers provision. Accordingly, I believe the projects approved by the Grant Committee should be allowed to immediately proceed.
It is beyond cavil that those projects which were approved by the Grant Committee in the first instance will be approved again by the reconstituted Committee. Thus, the majority‘s hyper-technical resolution of this issue serves no practical purpose other than to unnecessarily delay the commencement of projects sorely needed throughout this State. The majority expressly invites the executive to re-appoint the original Committee members to the new Committee on the ground that the unconstitutional “taint” attaches to
I further disagree with the majority‘s holding that the subject legislation violates the delegation of powers provision of our State Constitution because it does not include sufficient statutory guidance to the Grant Committee to assist it in the project application and selection process. Inexplicably, the majority opinion fails to provide any analysis, meaningful or otherwise, of the specific statutory language it finds objectionable and therefore, unconstitutional.
To the contrary, I find the language of
Finally, I am reminded that the genesis of establishing the economic development project fund was to assist in the funding of the Victorian Mall project in Wheeling, West Virginia. The purpose of that project was to stimulate the economy of that city‘s downtown area, which was once a vital business and retail district that, like many towns in West Virginia and across the nation, has fallen on hard financial times. Were it not for the Victorian Mall project, which has not yet been approved by the Grant Committee, the special revenue fund at issue might not have ever been created. I believe that project should have been approved in the first instance.
For these reasons, I respectfully concur in part, and dissent in part from the Court‘s opinion in this case.
STARCHER, C.J., concurring.
I concur in the majority opinion and write separately to make several points.
First, this Court is constitutionally charged with determining the constitutionality of a statute when challenged. In this case a majority of the Court determined that the statutory scheme in question is constitutionally defective. But this is not the end of the world. Little time should be lost for any proposed public projects, provided that the Legislature and the Executive act promptly to remedy the constitutional defect.
Second, the petitioner CAG was aware in March of 2002 of the statutory procedure for appointing the Grant Committee and the language establishing its duties. CAG could have brought this lawsuit at that time, yet they waited until September of 2002—until the Committee had essentially completed its work—to file this lawsuit. Therefore, the delay in the legal resolution of this case must first and foremost be laid squarely at the feet of CAG.
Third, this Court first properly sent the case for factual development to the circuit court; it would have been а mistake to jump in without giving the parties a full chance to develop the record. And although this Court disagrees with some of the legal conclusions reached by the circuit court, it is clear that Judge King proceeded deliberately and carefully, and produced a legally creditable result that deserves appreciation.
A. The Legislature cannot just give a Grant Committee a pot of money and tell them to “go do good stuff.” That is constitutionally impermissible—there must be some real standards set by law, not just by the Committee itself on an ad hoc basis.
B. Additionally, the Legislature cannot “pick the jury pool” from whom the Governor selects appointees—this violates elementary principles of the separation of powers. As Justice Maynard aptly questioned at the oral argument of this case: “Don‘t we have lawyers [at the Legislature] who look at this, for God‘s sake?”
Fifth, whether any or all of the proposed projects will survive standards established by the Legislature will be up to the Grant Committee. Nevertheless, I will personally state my belief that CAG‘s explicit argument that helping to build projects like baseball parks and to refurbish downtown shopping areas with public funds is unconstitutional—because those are not “public purposes“—is hogwash. I can think of few more public purposes than bringing people together for the convivial recreation of live local sporting events. And to suggest that preserving an extraordinary Victorian-era city center for future generations is not a public purpose defies rational explanation. CAG is way off base here.
Sixth, the majority opinion offers some suggestion as to how the essentially procedural defects in the Grant Committee‘s appointment and standardless delegation of duties might be remedied. I will add one remark to that discussion, although as the majority opinion clearly notes, it is not a court‘s job to write legislation.
My addition, which I admittedly have given little thought to, is that now that the mаjority of this Court has ruled for the Grant Committee on the “debt” and “public purpose” issues, I do not presently perceive any legal obstacle to the Legislature passing a bill that appropriates bond money based on future lottery revenues for as many of the projects selected by the Grant Committee as the Legislature wishes. And the timing of such action would be determined by the Legislature and the Executive. It could be done right away.
Perhaps such legislation would face a challenge raising other legal issues, and I explicitly don‘t prejudge any issues raised in such a challenge. But, without the benefit of argument to the contrary, I don‘t see why the Legislature could not theoretically perform such a “fix“—if it wishes to go that route. Regardless of the route selected, a constitutional remedy can be done posthaste.
Seventh, I recognize that this Court could have acknowledged the constitutional defects in the Grant Committee legislation, and still approved of the results of the work of the Committee. In State ex rel. Holmes v. Gainer, 191 W.Va. 686, 447 S.E.2d 887 (1994), this Court found that a legislative pay raise had been put in place in violation of a constitutional timing requirement—but because it was a “technical” mistake in an area where the law was unclear, this Court approved the legislative pay raise—and said, in effect, “Go and sin no more.”
Could and should we have said—“go and sin no more“—in this case?
I judge “no“—not with more than $200 million of public dollars at stake. That would send a message that a statute could violate basic constitutional principles, but this Court would nevertheless approve the results of the statute for political expediency or because—quite frankly—there were “thousands of jobs at stake.”
Jobs are important, and if I had thought the majority opinion as a matter of law would essentially prohibit the creation of most of the thousands of jobs anticipated in the Grant Committee results, I would have weighed that factor into my judgment, as well as the seriousness of the constitutional flaws in the statute creating the Committee. But my judgment—of course, I could be wrong—is that many or even most of the jobs that would bе created by the projects approved by the Grant Committee could be soon forthcoming, if the Legislature and the Executive act in a timely fashion.
Finally, this case was extremely well-developed, briefed, and argued—on both sides. The thorough, high-quality legal work of the advocates who presented their clients’ positions made it possible for the Court‘s opinion to be well-grounded in precedent and logic.
MAYNARD, Justice, dissenting.
I must respectfully dissent to the majority opinion. I would uphold the constitutionality of the legislation at issue and allow the immediate sale of the bonds and construction of the projects approved by the grant committee.
Our law states:
In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear bеyond reasonable doubt.
Syllabus Point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351. The majority errs by failing to resort to every reasonable construction to sustain the constitutionality of the legislation in question and by failing to resolve any reasonable doubt in favor of it. I simply do not believe that those challenging the legislation have met the burden of showing that it is unconstitutional beyond a reasonable doubt.
According to
the governor, or his or her designee, the secretary of the department of tax and revenue, the executive director of the West Virginia development office, three persons appointed by the governor from a list of five names submitted to the governor by the president of the West Virginia senate, and three persons appointed by the governor from a list of five names submitted to the governor by the speaker of the West Virginia house of delegates.
A perfectly reasonable interpretation of this language is that it directs the Speaker of the House and the President of the Senate to suggest, advise, or nominate potential grant committee members, and that the ultimate appointment power resides in the Governor. By the express terms of the statute, the Governor, not the Speaker nor the Senate President, actually appoints the grant committee members. Further, I read the statute to indicate that the Governor is not obligated or bound to choose from the names submitted by the legislative leaders. For example, the Governor could request new lists from which to choose grant committee members.
Admittedly, the majority opinion is persuasive and well written. It is undeniable that the procedure for the appointment of grant committee members easily could have been drafted to better ensure the separation of legislative and executive powers as well as the Governor‘s unfettered use of his appointment power. However, whether the legislation at issue is less than perfect is not the question we should ask when determining its constitutionality. Instead, the question is whether this Court can give the statute any reasonable construction so as to uphold its constitutiоnality. Unfortunately, the majori-
The majority‘s decision is based on a desire to protect the powers of the Governor granted by our Constitution. The members of this Court should be mindful, however, that we are not the only constitutional officers who took an oath to uphold the Constitution. The members of all three branches, including the Governor and the Legislators, also took such an oath. We are not the only guardians of the Constitution. Significantly, it was not the Governor who came before the courts challenging the legislation at issue. He apparently did not perceive any threat to his constitutional powers from the legislation. This is simply another reason why the Court should have been loath to find a statute unconstitutional when such a result was not absolutely mandated by our constitutional jurisprudence.
Some may think I am being “result oriented” and believe I am dissenting to the majority opinion because of a strong desire to see these projects built and to see economic development in the State. While I freely admit to a strong desire to see economic development, a desire I believe the majority shares just as strongly, that is simply not my reason for disagreeing with the majority. Rather, I am completely convinced that my conclusion that the legislation at issue is absolutely and fully constitutional is both in accord with this Court‘s prior constitutional decisions and based on sound judicial principles of statutory construction. While the legislation may not be a model of clarity, and in fact, it may not even be well written, and the mechanism it creates to fill these committee posts is unwise and unfortunate, it is not unconstitutional.
The majority obviously believes that the legislation‘s perceived constitutional defects can be easily and rapidly corrected. I fervently hope that this is so, and the economic projects can then proceed without undue delay. That would be a wonderful result! But no one really knows how long it will take for the Legislature to address these issues. After that, there is likely to be a new court challenge to the corrected legislation which could take months to wind its way through all the circuit court pleadings, hearings, motions, etc. This would be followed by another appeal to this Court, and the process would start all over again with preparation of the record below, then briefs and arguments here, all resulting in some further delay. I think it possibly could take many months and maybe a year or more to resolve.
Bond markets are notoriously jittery and nervous trading exchanges, and bond sellers and buyers are extremely cautious folks. I fear these bonds could not be sold during the period when litigation is still ongoing.
Clearly, the majority opinion will cause some delay which may or may not be significant. The plain fact is that the towns, cities, and counties that received economic grants for their respective projects need them desperately and need them now! Most of these projects concern improvements to infrastructure which will be of great help in creating real jobs for working people. Therefore, I hate to see these projects unnecessarily delayed even one more day.
For the reasons stated above, I would have found
ALBRIGHT, JUSTICE
SUPREME COURT OF APPEALS OF WEST VIRGINIA
The governor shall nominate, and by and with the advice and consent of the senate, (a majority of all the senators elected concurring by yeas and nays), appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and no such officers shall be appointed or elected by the legislature.
‘The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of inevitable friction incident to the distribution of governmental powers among the three departments, to save the people from autocracy.’195 W.Va. at 14 n. 12, 462 S.E.2d at 589 n. 12 (quoting Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926) (Brandeis, J., dissenting)).
We should not abandon the philosophical principles that were incorporated by the framers of our present constitution. The purpose of the separation of powers doctrine is uncontroverted. The precedents established by this court have been uniform in retaining the goals set by the framers. The separation of powers doctrine is set in the concrete of history and legal precedent. We will not overrule those cases and we will not, by the fiat of judicial legislation, change the clear and imperative meaning of our constitution. Such action is within the sole province of the voters of this Commonwealth.Id. at 914.
‘Persons and families of low and moderate income’ means persons and families, irrespective of race, creed, national origin or sex, determined by the housing development fund to require such assistance as is made available by this article on account of personal or family income not sufficient to afford sanitary, decent and safe housing, and to be eligible or potentially eligible to occupy residential housing constructed and financed, wholly or in part, with federally insured construction loans, federally insured mortgages, federal mortgages or with other public or private assistance, and in making such determination the fund shall take into account the following: (a) The amount of the total income of such persons and families available for housing needs, (b) the size of the family, (c) the cost and condition of housing facilities available, (d) the eligibility of such persons and families for federal housing assistance of any type predicated upon a low or moderate income basis, and (e) the ability of such persons and families to compete successfully in the normal housing market and to pay the amounts at which private enterprise is providing sanitary, decent and safe housing[.]153 W.Va. at 650-51, 171 S.E.2d at 553-54 (quoting
Implicit in that decision is the fact that additional funding would have to be created in order to fund those projects which had been previously funded by revenue which would be going to the special revenue fund. O‘Brien makes it clear that the important question is whether the funding for the bonds creates an unconstitutional debt, not how will other projects originally funded by the special fund continue to be funded.191 W.Va. at 465, 446 S.E.2d at 687 (citation omitted).
When our Constitution of 1872 was formed, the experience of the mother state with debts contracted by her, and with suits to compel payment, were fresh in the minds of the framers of that Constitution. Numerous suits ending in heavy judgments and costs had been prosecuted against the commonwealth; illiberal contracts and guaranties of enterprises had been made by governmental agencies detrimental to her interests; public officers and agencies had not been always zealous and careful in the conduct of public affairs; and juries leaned toward the individual as against the commonwealth.Id. at 188-89, 153 S.E. at 306-07.