Norwood Bentley III
Bowles, Rice, McDavid, Graff
Charleston, West Virginia
Sanders, Austin, Swope & Flanigan
Princeton, West Virginia
Attorneys for the Relator
David Burton John Hedges
Burton & Kilgore Byrne & Hedges
Princeton, West Virginia Morgantown, West Virginia
Michael Gibson Amicus Curiae for the West
Gibson & McFadden Virginia Judicial Association
Princeton, West Virginia
Attorneys for the Respondent
Don B. Meadows, Sheriff of
JUSTICE CLECKLEY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "The system of 'checks and balances' provided for in
American state and federal constitutions and secured to each branch
of government by 'Separation of Powers' clauses theoretically and
practically compels courts, when called upon, to thwart any
unlawful actions of one branch of government which impair the
constitutional responsibilities and functions of a coequal branch."
State ex rel. Brotherton v. Blankenship, 158 W. Va. 390, 402, 214 S.E.2d 467, 477 (1975).
2. "Acts of the Legislature are presumed to be
constitutional, and courts will interpret legislation in any
reasonable way which will sustain its constitutionality. State ex
rel. City of Charleston v. Coghill, 156 W. Va. 877, 207 S.E.2d 113
(1973); State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va.
740, 143 S.E.2d 351 (1965). Thus where a statute is susceptible of
more than one construction, one which renders the statute
constitutional, and the other which renders it unconstitutional,
the statute will be given the construction which sustains
constitutionality. State ex rel. Slatton v. Boles, 147 W. Va. 674,
130 S.E.2d 192 (1963), Board of Education v. Board of Public Works,
144 W. Va. 593, 109 S.E.2d 552 (1959)." State ex rel. Frieson v.
Isner, 168 W. Va. 758, 778-79, 285 S.E.2d 641, 655 (1981).
3. The Judicial Reorganization Amendment provides a
hierarchy to be used in resolving administrative conflicts and
problems. Under the Amendment, the Judiciary, not the executive
branch, is vested with the authority to resolve any substantial,
genuine, and irreconcilable administrative conflicts regarding
4. A sheriff's right to initially select a court's
bailiff may not obstruct a court's inherent power to control the
administration of justice and conduct orderly judicial proceedings.
5. "A writ of mandamus will not issue unless three
elements coexist--(1) a clear right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of
another adequate remedy." Syllabus Point 2, State ex rel. Kucera
v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
In this original proceeding in mandamus, the relator, the
Honorable John R. Frazier, Judge of the Circuit Court of Mercer
County, petitions this Court to issue a writ of mandamus requiring
the respondents, Don D. Meadows, Sheriff of Mercer County, and the
Mercer County Commission, to provide the relator with a qualified
bailiff of the relator's choice who would work under his control
and direct supervision.
Judge Frazier maintains that a bailiff is an officer of the court and, therefore, should be under the control and supervision of the presiding judicial officer. He contends that the Supreme Court of Appeals has the inherent power to administer the judicial court system pursuant to the 1974 Judicial Reorganization Amendment (Reorganization Amendment) and that this amendment is superior to any other statutory language. On the other hand, the respondents assert that, notwithstanding the Reorganization Amendment, W. Va. Code, 51-3-5 (1923), commands the sheriff of a county to provide bailiffs for the circuit courts and is the controlling law.
We agree generally with the respondents that the
Reorganization Amendment does not supersede W. Va. Code, 51-3-5.
Nevertheless, to honor and fulfill the purposes of both the
Reorganization Amendment and the statute, we hold that the circuit judge directs and controls bailiffs assigned to him and that where
a substantial, genuine, and irreconcilable conflict exists between
the sheriff and circuit court judge concerning the selection of a
bailiff that impairs, or is likely to impair, the court's ability
to function properly, the ultimate authority to make a reasonable
selection of a qualified bailiff is constitutionally vested in the
court. Because we find such a conflict exists in this case, the
writ is granted as moulded.
On March 10, 1994, the relator informed Sheriff Meadows and John Rapp, President of the Mercer County Commission, that he intended to hire a full-time replacement for his retiring bailiff.See footnote 1 Sheriff Meadows replied by letter and raised certain concerns. Sheriff Meadows specifically noted his expectations that the bailiff would be available to serve civil papers when the judge is on vacation, that the bailiff would be an employee of the Mercer County Sheriff's Department, and that he or she would be subject to the same policy as other members of the Sheriff's Department. Judge Frazier responded and suggested a number of options that he thought would satisfy Sheriff Meadows' concerns. Judge Frazier also wrote a similar letter to Commission President Rapp. The correspondence between the Sheriff, Commission President Rapp, and Judge Frazier continued without resolution.
In an effort to amicably conclude this matter, Judge Frazier, Sheriff Meadows, Commission President Rapp, T.A. Warden, a member of the County Commission, and a number of other individuals met on May 31, 1994. The group decided that Judge Frazier would interview any deputy sheriff that applied, but could hire from the civilian population. The salary range for the bailiff was $15,000 - $18,000 annually and the bailiff position was to be moved from the Sheriff's Department to the Office of the Circuit Clerk, upon action of the Mercer County Wage and Hour Review Board.
By letter dated June 3, 1994, President Rapp, in his
capacity as the Chairperson of the Mercer County Wage and Hour
Review Board, denied the relator's request for a civilian bailiff
because he believed statutory law and Rule VII of the Trial Court
Rules required them to deny the request. Shortly thereafter,
Sheriff Meadows informed the court's bailiff that his services were
no longer needed.See footnote 2 Judge Frazier was in the midst of an extended
trial when the Sheriff took this unilateral action, and he asked his bailiff to remain in service and agreed to pay the bailiff's
expenses personally, if necessary.See footnote 3
Sheriff Meadows then assigned Deputy Sheriff Roger
Kessinger as bailiff pursuant to W. Va. Code, 51-3-5, and Rule VII
of the West Virginia Trial Court Rules. The bailiff came under the
Sheriff's control and supervision. Thus, the Sheriff retained the
authority to assign the bailiff to other jobs, promote him, set his
pay, promulgate policy changes affecting him, and grant his request
The primary issue presented in this original proceeding is whether the judges of the circuit courts have the authority to hire and control their bailiffs. The relator and the West Virginia Judicial Association, through an amicus curiae brief, argue that the circuit court judge has the exclusive authority to control court employees. On the other hand, the respondents argue that W. Va. Code, 51-3-5, and Rule VII of the West Virginia Trial Court Rules place court bailiffs under the supervision and control of the Sheriffs' Departments.
We begin, as we must, by examining the statutory language, bearing in mind that we should give effect to the legislative will as expressed in the language of the statute. Landreth Timber Co. v. Landreth, 471 U.S. 681, 105 S. Ct. 2297, 85 L.Ed.2d 692 (1985). Generally, words are given their common usage. See State ex rel. Underwood v. Silverstein, 167 W. Va. 121, 125, 278 S.E.2d 886, 889 (1981) (quoting Syllabus Point 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) stated "[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation."); see also, Gant v. Waggy, 180 W. Va. 481, 483, 377 S.E.2d 473, 475 (1988) (stating that "this Court... will not change the plain language employed in framing the statute"); Palestine Info. Office v. Shultz, 853 F.2d 932, 938 (D.C. Cir. 1988). Courts are not free to read into the language what is not there, but rather should apply the statute as written. If the statute "is clear," Syllabus Point 1, State ex rel. Estes v. Egnor, ___ W. Va. ___, 443 S.E.2d 193 (1994); if "the statutory scheme is coherent and consistent," United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-41, 109 S. Ct. 1026, 1030, 103 L.Ed.2d 290, 298 (1989); and if the law is within the constitutional authority of the lawmaking body that passed it, then the duty of interpretation does not arise, and the rules for ascertaining uncertain language need no discussion. Syllabus Point 1, W. Va. Radiologic Technology Bd. of Examiners v. Darby, 189 W. Va. 52, 427 S.E.2d 486 (1993).See footnote 4
Although courts should not ordinarily stray beyond the
plain language of unambiguous statutes, we recognize the need to
depart from the statutory language in exceptional circumstances.
2A G. Sutherland, Statutory Construction § 46.07 at 126 (5th ed.
1991) (collecting exceptions). Courts, therefore, may venture
beyond the plain meaning of a statute in the rare instances in
which there is a clearly expressed legislative intent to the
contrary, Russello v. United States, 464 U.S. 16, 20-21, 104 S. Ct.
296, 299-300, 78 L.Ed.2d 17, 22-23 (1983); in which a literal
application would defeat or thwart the statutory purpose,
Commissioner v. Brown, 380 U.S. 563, 571, 85 S. Ct. 1162, 1166, 14 L.Ed.2d 75, 82 (1965); Griffin v. Oceanic Contractors, Inc., 458
U.S. 564, 571, 102 S. Ct. 3245, 3250, 73 L.Ed.2d 973, 980-81
(1982); or in which a literal application of the statute would
produce an absurd or unconstitutional result, United States v.
Amer. Trucking Ass'ns, 310 U.S. 534, 543-44, 60 S. Ct. 1059, 1063-
64, 84 L.Ed. 1345, 1351 (1940). Where warranted a departure must
be limited to what is necessary to advance the statutory purpose or
to avoid an absurd or unconstitutional result.
W. Va. Code, 51-3-5, provides that the sheriff shall be
the attending officer in circuit court proceedings.See footnote 5 Rule VII
elaborates by declaring that a sheriff or deputy sheriff shall be
present while the court is in session.See footnote 6 Under these provisions,
the sheriff is charged with the duty of maintaining a sufficient
number of deputies for the court.
The relator and the West Virginia Judicial Association (Judicial Association) argue that the statute cannot be given effect because W. Va. Code, 51-3-5, and Rule VII became "constitutionally outdated" upon the ratification of the Reorganization Amendment in 1974,See footnote 7 and that it is contrary to clearly expressed judicial precedent in this and other jurisdictions regarding the inherent authority of the court to hire and control its court personnel. As a consequence, the relator, the Judicial Association, assert that the statute violates the separation of powers provision of the West Virginia Constitution. The relator thus maintains that the only remaining purpose of W. Va. Code, 51-3-5, is to determine whose budget will cover the bailiff's salary.
We believe that the relator's argument that the statute is unconstitutional misconstrues the function and interaction of W. Va. Code, 51-3-5, Rule VII, and the Reorganization Amendment. The Reorganization Amendment centralized the administration of the State's judicial system and placed the administrative authority of the courts in the hands of this Court. Rutledge v. Workman, 175 W. Va. 375, 332 S.E.2d 831 (1985). In Rutledge, the Court noted that the Reorganization Amendment vested "exclusive authority over administration" in the Supreme Court. 175 W. Va. at 379, 332 S.E.2d at 834. Although it is true that the Reorganization Amendment had a profound effect on the structure of the West Virginia court system and changed the administrative functions of the courts, the Reorganization Amendment did not completely negate all laws previously passed covering administrative procedures.See footnote 8
The efficient administration of the judicial system is essential to our duty to implement justice in West Virginia; and, therefore, we must be wary of any legislation that undercuts the power of the judiciary to meet its constitutional obligations. In fact, West Virginia's commitment to the separation of powers is apparent from the provisions of Article V of the West Virginia Constitution, which mandates the division of governmental powers.See footnote 9 In prior cases, we have observed the importance of having a free and independent judiciary. In State ex rel. Brotherton v. Blankenship, 158 W. Va. 390, 402, 214 S.E.2d 467, 477 (1975), we stated:
"The system of 'checks and balances' provided for in American state and federal constitutions and secured to each branch of government by 'Separation of Powers' clauses theoretically and practically compels courts, when called upon, to thwart any unlawful actions of one branch of government which impair the constitutional responsibilities and functions of a coequal branch."
See also State ex rel. Steele v. Kopp, 172 W. Va. 329, 337, 305
S.E.2d 285, 293 (1983) ("the role of this Court is vital to the
preservation of the constitutional separation of powers of
government where that separation, delicate under normal conditions,
is jeopardized by the usurpatory actions of the executive or
legislative branches of government").
Recent amendments to the West Virginia Constitution
affecting the allocation of powers have emphasized the necessity
for maintaining the independence of the judiciary. These changes
include the entirety of the Reorganization Amendment and its
concept of a unified court system administered by this Court and
not the legislature. See, e.g., State ex rel. Quelch v. Daugherty,
172 W. Va. 422, 306 S.E.2d 233 (1983). More specifically, that
same amendment altered Section 1 of Article VIII to provide that
the judicial power of the State "shall be vested solely" in this
Court and its inferior courts. (Emphasis added). The predecessor
provision to Section 1, though similarly worded, did not include
the limiting adverb "solely." In addition, the Modern Budget
Amendment insulated the judiciary from political retaliation by
preventing the governor and legislature from reducing the
judiciary's budget submissions. W. Va. Const., art. V, § 51; State
ex rel. Bagley v. Blankenship, 161 W. Va. 630, 246 S.E.2d 99
(1978); State ex rel. Brotherton v. Blankenship, 157 W. Va. 100,
207 S.E.2d 421 (1973). Taken together, these amendments create a
strong and independent judiciary that can concentrate on delivering
a high quality, fair, and efficient system of justice to the
citizens of West Virginia. Such measures are particularly useful
in a State such as ours that continues, and appropriately so, to
elect judges to fixed terms of office. That is, because judges
remain ultimately beholden to the electorate, the need is even
greater to insulate the judiciary from the more routine politics of the annual budget process and legislative or executive
Taking these principles into account and for reasons we
more fully explain below, we partially agree with both sides in
this case. First, longstanding historical practice and necessity
preclude a literal application of the statute: the sheriff does
not, and cannot, personally serve as the bailiff. Thus, we
interpret W. Va. Code, 51-3-5, to mean that the sheriff or his
designee (i.e., a deputy sheriff) must perform as court bailiff, as
is set forth in Rule VII. Second, W. Va. Code, 51-3-5, vests the
selection of a bailiff in the sheriff. Third, whoever serves as
bailiff must submit fully to the direction and control of the
circuit judge. (This conclusion further reinforces the practical
necessity that, in today's world, a deputy sheriff -- and not the
sheriff -- will fulfill the role of bailiff.) Fourth, where
substantial, genuine, and irreconcilable conflicts develop between
the sheriff and circuit judge over the selection and direction of
a bailiff, the judge must control.
With the statute so construed, the procedure established by W. Va. Code, 51-3-5, does not threaten judicial independence and effectiveness. Under that system, the sheriff selects and assigns one or more deputy sheriffs to serve as bailiff, and the circuit judge then assumes responsibility for direction and control of the bailiff's duties. There is nothing inherent in that system that invites disruption of a fair and efficient judicial process. We assume that the system will function normally with the cooperation of both the sheriff and the circuit judge; that the sheriff will attempt to supply the court with capable personnel; that the judge will have input into, but not dictate the selection decision; and that the judge will have the bailiff at his disposal and control.See footnote 10 When the system operates in that manner, there is no conflict between the Reorganization Amendment and either W. Va. Code, 51-3- 5, or Rule VII of the Trial Court Rules. Thus, we disagree with the relator and the Judicial Association and find that the Reorganization Amendment did not supersede W. Va. Code, 51-3-5, and Rule VII of the Trial Court Rules regarding the selection of deputy sheriffs who will serve as bailiffs.See footnote 11
When analyzing the constitutionality of a statute, we do
not discard law as easily as the relator urges us to do. It is no
small matter to jettison the decision of a coequal branch. Our
legislature promulgates statutory laws through a democratic
process; and, for that reason it is imperative that we carefully
examine a law before determining its constitutionality.See footnote 12 This
Court in State ex rel. Frieson v. Isner, 168 W. Va. 758, 778-79,
285 S.E.2d 641, 655 (1981), stated:
"Acts of the Legislature are presumed to be constitutional, and courts will interpret legislation in any reasonable way which will sustain its constitutionality. State ex rel. City of Charleston v. Coghill, 156 W. Va. 877, 207 S.E.2d 113 (1973); State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965). Thus where a statute is susceptible of more than one construction, one which renders the statute constitutional, and the other which renders it unconstitutional, the statute will be given the construction which sustains constitutionality. State ex rel. Slatton v. Boles, 147 W. Va. 674, 130 S.E.2d 192 (1963), Board of Education v. Board of Public Works, 144 W. Va. 593, 109 S.E.2d 552 (1959)."See footnote 13
Similarly, the relator is incorrect in his assumption that the Reorganization Amendment destroyed the purpose, reason, and need for W. Va. Code, 51-3-5. Although the structure of our court system was radically different when W. Va. Code, 51-3-5, was originally passed, this does not mean that the statute is no longer valid. To create the precedent that we are being urged to do would subject numerous statutes to unproductive challenges.
Accordingly, we conclude that under the provisions of
W. Va. Code, 51-3-5, and Rule VII, the sheriff of a county is
charged with the duty of providing bailiffs for the circuit court
of the county. In addition, we find that W. Va. Code, 51-3-5, goes
beyond simple budgetary allocations and confers authority on the
sheriff to assign a deputy sheriff to the court as its bailiff.
This application of the plain language in W. Va. Code, 51-3-5, is
not, in our view, inconsistent with the general purposes of the
Reorganization Amendment, and, therefore, the statute facially
meets constitutional muster.
Determining that W. Va. Code, 51-3-5, vests selection of a bailiff on the sheriff and has not been superseded by the Reorganization Amendment does not end our analysis or inquiry in this case. We must still explain why we assign to judges the direction and control of bailiffs and whether applying the plain and literal language of W. Va. Code, 51-3-5, under the circumstances of this case would render an absurd or unconstitutional result or would defeat the purpose of the statute.
Although the proper analytical starting point is W. Va.
Code, 51-3-5, neither that provision nor Rule VII is particularly
instructive in identifying who directs and controls bailiffs and
how judge-sheriff conflicts over bailiff selections are to be
resolved. We noted in Rutledge, 175 W. Va. at 378-79, 332 S.E.2d
at 834, that the Reorganization Amendment established a hierarchy
among circuit judges and centralized administrative power. The
Reorganization Amendment essentially made the Chief Justice of the
Supreme Court the administrative head of all courts.
Significantly, the administrative power vested in the Chief Justice
of the Supreme Court also flows to the lower court judges. See
Syllabus Point 2, Rutledge v. Workman, 175 W. Va. at 376, 332
S.E.2d at 831-32 (stating that the administrative authority is
reposed in the Chief Justice of the Supreme Court and in the
circuit court judges).
As mentioned above, altering the administrative structure did not negate all prior laws that are tangentially related to administrative matters. To the contrary, the Reorganization Amendment provides us with a hierarchy to be used in resolving administrative conflicts and problems. As we explained in Rutledge, this Court's "exclusive authority over the administration, and primary responsibility for establishing rules of practice and procedure, secures businesslike management for the courts and promotes simplified and more economical judicial procedures." 175 W. Va. at 379, 332 S.E.2d at 834. Under the Amendment, the Judiciary, not the executive branch, is vested with the authority to resolve any substantial, genuine, and irreconcilable administrative conflicts regarding court personnel. See Rutledge v. Workman, 175 W. Va. 375, 332 S.E.2d 831.
The judicial system was revised, among other things, to
simplify the administrative process and to complement prior
nonconflicting statutory and case law. Clearly, the administrative
structure requires that if there is a conflict, we must not only
consider the concerns of the parties, but also look at the
hierarchy of the court system. The administration of the court is
very important to the unobstructed flow of court proceedings and
business. Court actions are complicated enough without adding to
their complexity a struggle over every administrative decision to
be made. The purpose of judicial administrative authority is to
enhance and simplify our court system and not to burden it.
The controversy between the relator and the respondents
qualifies as an administrative dispute because of the bailiff's
role in court proceedings. We have defined a bailiff as "'[a]
court officer or attendant who has charge of a court session in the
matter of keeping order, custody of the jury, and custody of
prisoners while in the court.'" In re Pauley, 173 W. Va. 228, 233, 314 S.E.2d 391, 396 (1983), quoting Black's Law Dictionary 129
(5th ed. 1979). We noted that "it is essential that the bailiff
understands his role as an officer of the court attendant to the
judge or magistrate to whom he is assigned."See footnote 14 173 W. Va. at 233,
314 S.E.2d at 396. In Rutledge, we recognized the administrative relationship between judge and clerk. Although a bailiff and a
clerk of court play different roles in court proceedings, they both
are equal and essential participants in the proper functioning of
the judicial system. See Rutledge v. Workman, 175 W. Va. 375, 332
S.E.2d 831.See footnote 15 We also found that although clerks for the circuit
court fill separately elected positions, clerks still fall under
the general rubric of the court system. The Court stated:
"We, however, find no conflict between the election process that selects Mrs. Rutledge from among competing candidates for the job of circuit clerk and a requirement that after being so selected she serve within the hierarchy of judicial authority." 175 W. Va. at 380, 332 S.E.2d at 836.
As in Rutledge, we have no problem with the selection process required under W. Va. Code, 51-3-5. The bailiff, as an officer of the court, nevertheless, falls within the administrative hierarchy set up by the Reorganization Amendment. We underscore the point that ministerial attendants such as clerks and bailiffs, regardless of the method of their selection, fall within the administrative control of the court system. Judges are ultimately responsible for any action or inaction of their employees and only a judge can determine whether his assistants are suitable and sufficient for his needs. Merrill v. Phelps, 52 Ariz. 526, 533, 84 P.2d 74, 78 (1938); Shearin v. Fletcher/Mayo/Associates, 687 S.W.2d 198 (1984); Eshelman v. Commissioners of the County of Berks, 62 Pa. Cmwlth 310, 314, 436 A.2d 710, 712 (Pa. 1981), order aff'd, sub nom. Eshelman v. American Federation of State, County and Municipal Employees, 502 Pa. 430, 466 A.2d 1029 (1983) ("it cannot be doubted that judicial power includes the authority to select persons whose services may be required . . . to act as assistants of the judges in the performance of their judicial functions.")See footnote 16; Matter of Court Reorganization Plan of Hudson County, 161 N.J. Super. 483, 391 A.2d 1255 (1978), aff'd, Matter of Court Reorganization Plan of Hudson County, 78 N.J. 498, 396 A.2d 1144 (1979) (it is within the court's inherent power to appoint assistants that satisfy judicial needs). The sheriff's office is a separate entity charged with the duty of supplying bailiffs, but the sheriff's selection of a bailiff will not be permitted to undermine the actual needs of the court. We hold that the circuit judge must direct and control bailiffs assigned to the court and that the sheriff's administrative function as it interrelates with the judicial administrative hierarchy must give way to the court's authority in times of substantial, genuine, and irreconcilable conflict.
We are of the opinion that a "substantial, genuine and irreconcilable" conflict exists between Judge Frazier and Sheriff Meadows concerning the selection of an appropriate bailiff. A careful review of the facts explains our conclusion.
Sheriff Meadows emphasized twice in a letter dated March
21, 1994, that although he had no problems with Judge Frazier
hiring whomever he wanted, whoever is chosen would still be an
employee of the Mercer County Sheriff's Department and, therefore,
subject to the policy of the Department. Following the Wage Board
meeting, Sheriff Meadows replaced Judge Frazier's bailiff with a
designated bailiff who had not been trained and only had a few days
of experience. Sheriff Meadows failed to allow the deputy an
opportunity to train with Judge Frazier's civilian bailiff for any
period of time. Deputy Roger Kessinger was supposed to assume
duties as the designated bailiff on June 21, 1994, docket day for
the June Term of Court. Judge Frazier states that this was one of
the busiest times for court and there were a number of criminal
defendants. However, Deputy Kessinger failed to show at 8:30 a.m.
In fact, no one from the Sheriff's Department reported until 9:25
a.m. when Deputy Keith Reed arrived and stated that he did not know where Deputy Kessinger was. Deputy Reed had no experience as a
bailiff and reported in an open dress shirt, with no uniform or
tie. Later in the day, Judge Frazier discovered that Deputy
Kessinger was on vacation for the remainder of the week.
On June 22, 1994, Deputy Reed reported as bailiff for a
misdemeanor jury trial. On June 23, 1994, Deputy D.B. Bailey was
assigned as bailiff. This deputy, however, also had no experience
as a bailiff. The following week, Deputy Kessinger reported as
bailiff and served as bailiff except for several days that he was
off. On July 14, 1994, Deputy Kessinger failed to report to the
court at 8:15 a.m. to perform a security check. A criminal trial
was scheduled for 9:30 a.m. At 8:30 a.m., Judge Frazier had to
proceed with a domestic hearing without a bailiff. Deputy Earnest,
the fourth deputy in three weeks, entered the courtroom around 8:45
a.m. and informed the court that Deputy Kessinger was involved in
a high speed chase. Deputy Kessinger reported to court around 9:15
On July 16, 1994, the second day of a sexual assault
trial, Deputy Kessinger did not report to the court because he had
previously scheduled a "comp day." Deputy Kessinger did not ask
Judge Frazier if he could have the day off. Deputy Reed reported
in place of Deputy Kessinger.
Deputy Kessinger advised Judge Frazier of another day
off, which came on the second day of a civil jury trial. Deputy
Kessinger had taken a number of days off from work without ever
asking the judge for permission. Deputy Kessinger told Judge
Frazier that he would arrange for a replacement for August 19,
1994. However, when the trial began that day, no one reported as
bailiff. The case concluded that day, but no one was there to take
official charge of the jury. After sending the jury back to
deliberate on the case, Judge Frazier called Chief Deputy Ralph
Bailey and asked why no bailiff had reported. Chief Deputy Bailey
said that he was unaware that one was needed. Deputy Reed arrived
for bailiff duty about fifteen minutes later dressed in a sports
On the afternoon of August 19, 1994, at a sentencing
hearing for a felony case, Deputy Reed left the defendant sitting
alone with his attorney in the courtroom. The defendant had been
convicted of unlawful wounding for stabbing his wife and, after a
number of months in jail and prison, had been placed on probation.
Judge Frazier asked a clerk where Deputy Reed was and she told him
that Deputy Reed was in the back room making a telephone call.
After sending the clerk to tell Deputy Reed that his presence was
desired and Deputy Reed failing to appear, Judge Frazier was forced
to leave the bench to get Deputy Reed. Judge Frazier met Deputy
Reed as he was coming out the door. When asked why he had left the
courtroom, Deputy Reed informed the judge that he was taking time to make a call on a case that he was investigating. Judge Frazier
informed Deputy Reed that it was necessary that he remain in the
courtroom, especially when a prisoner was present without any
The designated bailiffs have performed general law
enforcement duties during the time when Judge Frazier has no
scheduled hearings. Judge Frazier is legitimately concerned about
what will happen when one of the cases that his bailiff is
investigating comes before him.
These exceptional facts constitute the kind of conflict
that threatens the efficient and fair functioning of the judicial
system in Mercer County and requires this Court to assert its
ultimate responsibility and authority. Notwithstanding the plain
language of W. Va. Code, 51-3-5, and its facial constitutionality,
its continued literal application in face of the substantial,
genuine, and irreconcilable conflict between the circuit court and
Sheriff Meadows would create an absurd result. Because the dispute
between Sheriff Meadows and Judge Frazier has the potential to
disrupt judicial proceedings and thus interfere with the
administration of justice, a complete denial of Judge Frazier's
requested relief would contribute to a chaotic situation and
frustrate the legislative purpose of requiring bailiffs in the
State's trial courts to ensure security and efficiency. To be
specific, a sheriff's right to initially select a court's bailiff may not obstruct a court's inherent power to control the
administration of justice and conduct orderly judicial proceedings.
The final point that we must consider is whether mandamus is appropriate in light of the foregoing discussion. It is well established in this jurisdiction that a writ of mandamus is only granted in extraordinary circumstances. In Syllabus Point 2 of State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969), we stated when a writ of mandamus will issue:
"A writ of mandamus will not issue unless three elements coexist--(1) a clear right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy."
See also Allen v. State, Human Rights Com'n, 174 W. Va. 139, 145,
324 S.E.2d 99, 105 (1984); Reed v. Hansbarger, 173 W. Va. 258, 261-
62, 314 S.E.2d 616, 619-20 (1984); Syllabus Point 1, West Virginia
Citizens Action Group, Inc. v. Daley, 174 W. Va. 299, 301, 324
S.E.2d 713, 715 (1984); Syllabus Point 3, State ex rel. Council of
the City of Charleston v. Hall, 190 W. Va. 665, 666, 441 S.E.2d
386, 387 (1994).
W. Va. Code, 51-3-5, states that it is the duty of the
sheriff, or his deputy, to serve as a bailiff for a circuit judge.
In an analogous situation, W. Va. Code, 50-1-14, also allows a magistrate to petition for a writ of mandamus in order to enforce
the provisions of this statute.See footnote 17 It cannot reasonably be
questioned that a circuit court judge has a clear right to a
bailiff and this point has been established by the statute and the
Rules. Furthermore, we have noted that W. Va. Code, 51-3-5, and
Rule VII vests the duty of providing bailiffs in the sheriff's
office in each county. A judge has no other remedy than a writ of
mandamus if a bailiff is unsatisfactory. All three elements for a
writ of mandamus are satisfied in this case.
Under these facts and circumstances, a writ of mandamus
is issued directing the respondents to provide and compensate a
qualified bailiff selected by the relatorSee footnote 18 and the bailiff is to be required to work under the exclusive control and direction of
the circuit court. Thus, the writ is granted as moulded for the
Writ granted as moulded.
Footnote: 1 The relator also sent letters dated April 1, April 10, April 28, and May 20, 1994, repeating his desire to hire a civilian bailiff.
Footnote: 2 Judge Frazier's bailiff officially retired on April 30, but had continued to serve by agreement as interim bailiff pending his replacement.
Footnote: 3 Judge Frazier argues that he has been allowed to hire several civilian bailiffs over the years. The notes from the June 2, 1994, meeting of the Wage and Hour Review Board indicate that Sheriff Meadows admits that he knew of the past practice of civilian bailiffs and that he did not attempt to remove Judge Frazier's civilian bailiffs. Sheriff Meadows firmly maintains, however, that the practice of using civilian bailiffs is contrary to the statutory law.
Footnote: 4 Syllabus Point 1 of Darby states:
"'"When a statute is clear and
unambiguous and the legislative intent is
plain the statute should not be interpreted
by the courts, and in such case it is the
duty of the courts not to construe but to
apply the statute." Point 1, syllabus, State
ex rel. Fox v. Board of Trustees of the
Policemen's Pension or Relief Fund of the
City of Bluefield, et al., 148 W. Va. 369
[135 S.E.2d 262 (1964)].' Syllabus Point 1,
State ex rel. Board of Trustees v. City of
Bluefield, 153 W. Va. 210, 168 S.E.2d 525
See also United States v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527, 69 L.Ed.2d 246 (1981); Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L.Ed. 442, 447 (1917); State ex rel. Estes v. Egnor, supra.
Footnote: 5 W. Va. Code, 51-3-5, which covers the attending officers to West Virginia courts, reads: "The supreme court of appeals shall not be attended by any sheriff, but every circuit court, county court, and other court of record of any county shall be attended by the sheriff of the county in which it is held, who shall act as the officer thereof."
Footnote: 6 Rule VII of the Trial Court Rules provides:
"The sheriff, or a deputy, shall be
present at all times while the court is in
"The sheriff shall provide a sufficient number of deputies to maintain order in the courtroom at all times. The rules and orders of the court pertaining to conduct in the courtroom shall be enforced by him or them."
Footnote: 7 The 1974 Amendment, termed the "Judicial Reorganization Amendment," rewrote Article VIII, substituting §§ 1 to 15 for former §§ 1 to 30, amended § 13 of Article III, and added §§ 9 to 13 to Article IX.
This Amendment substantially changed the prior judicial system by centralizing administrative control. In Syllabus Point 2, in part, of Rutledge v. Workman, 175 W. Va. 375, 376, 332 S.E.2d 831, 831-32 (1985), this stated:
"The judicial article (Article VIII) of the W.Va. Const. creates the office of clerk of the circuit court and the circuit clerk is an officer within the judicial system; therefore, the hierarchy of administrative control established by W. Va.Const. art. VIII, § 3 that reposes overall administrative authority for the entire judicial system in the Supreme Court of Appeals by and through its Chief Justice and Administrative Director, and thereafter reposes local administrative authority in the circuit court through the judge or chief judge of each circuit also controls the office of circuit clerk[.]"
Footnote: 8 The Reorganization Amendment not only gave this Court the power to promulgate rules, but also provided that such rules shall "'have the force and effect of statutory law and operate to supersede any law that is in conflict with them.'" Syllabus Point 2, Bennett v. Warner, 179 W. Va. 742, 743, 372 S.E.2d 920, 921 (1988), quoting Syl. Pt. 1, Stern Brothers, Inc. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977). See also Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728 (1994); State v. Davis, 178 W. Va. 87, 90, 357 S.E.2d 769, 772 (1987). The important point culled from these various cases is that statutory provisions are superseded only if there is a direct conflict.
Footnote: 9 Article V reads as follows:
"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 the justices of the peace shall be eligible to the legislature."
Footnote: 10 We expect that the system will indeed function as described in the text and that such matters as are presented in this case will be resolved at the local level. In our view, the more local control the better, and the less intervention by this Court the better for local control. Of course, with local control comes local responsibility, and that includes the responsibility to follow the procedures outlined in the text and to resolve reasonably and amicably any dispute that might arise. Although we will meet our duty to decide conflicts when they are presented to us, we do not wish to become a mediator for disagreements that ought not to go beyond their county of origin.
Footnote: 11 As indicated above, a conflict between the judiciary and another branch of government must be a "substantial, genuine and irreconcilable" intrusion to constitute a constitutional infringement. See State ex rel. Frieson v. Isner, 168 W. Va. 758, 777, 285 S.E.2d 641, 654 (1981) (although legislative enactments cannot restrict or impair the power of the judiciary, "where the intrusion upon the judicial power is minimal and inoffensive, and is consistent with and intended to be in aid of the aims of the Court with respect to the regulation of the
practice of law, such legislation may be upheld as being in aid of the judicial power").
Footnote: 12 Even though we find that the statute in question is constitutional, we are not backing away from our duty to strike unconstitutional legislation. In fact, we have previously noted that "[l]egislative enactments which are not compatible with those prescribed by the judiciary or with its goals are unconstitutional violations of the separation of powers." State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 424, 306 S.E.2d 233, 235 (1983) (see also cases cited therein concerning other state supreme courts invalidating legislation that encroached upon the judiciary).
Footnote: 13 See also Gibson v. W. Va. Dept. of Highways, 185 W. Va.
214, 225, 406 S.E.2d 440, 451 (1991) (holding that "[w]e begin with the premise that there is a presumption of constitutionality with regard to legislation"); State ex rel. Alsop v. McCartney, 159 W. Va. 829, 838-39, 228 S.E.2d 278, 283 (1976) (cautioning
that "whenever this Court is called upon to interfere with the exercise of the powers of the other branches of government on constitutional grounds, and there are legitimate alternative remedies available, this Court should always adopt the least obtrusive remedy"). In Farley v. Graney, 146 W. Va. 22, 33-34, 119 S.E.2d 833, 840 (1960), we recognized the "supremacy of the legislature in its own field" when we stated:
"'In resolving the question of the constitutionality of an act of the Legislature * * *, two controlling principles must be kept in mind. The first of these principles is that the power of the legislative department * * * is subject only to the limitations imposed by the State and Federal Constitutions. State v. Woodward, 68 W. Va. 66, 69 S.E. 385, 30 L.R.A.N.S., 1004 [(1910)]. The test of legislative power in this State is constitutional restriction. That which the Constitution of this State does not prohibit the Legislature from doing, and which does not violate the Constitution of the United States, the Legislature may do Harbert v. Harrison County Court, 129 W. Va. 54, 39 S. E. 2d 177[(1946)]; State Road Commission v. County Court, 112 W. Va. 98, 163 S.E. 815 [(1932)]. The power of the Legislature of a State is an attribute of sovereignty and its power would be absolute if there were no constitutional limitations. Howard v. Ferguson, 116 W. Va. 362, 180 S. E. 529 [(1935)]. The other principle is that any doubt as to the constitutionality of an act of the Legislature will always be resolved in favor of the validity of the statute. State [ex rel. Cosner] v. See,  W. Va. , 42 S. E. 2d 31 [(1947)]; State v. Furr, 101 W. Va. 178, 132 S. E. 504 [(1926)].' State v. Harrison, 130 W. Va. 246[, 249], 43 S. E. 2d 214[, 216 (1947)]."
Footnote: 14 Judge Frazier and the Judicial Association argue that a well-trained bailiff with undivided loyalties is essential to the operation of the court system and that the only way to achieve such allegiance to circuit court judges is through independence. Wisely, the respondents do not dispute the judge's authority over a bailiff while in the courtroom. Rather, the respondents cling to the statute for the authority to control bailiffs outside the courtroom. The difficulty with the argument of Sheriff Meadows is that the activities of the deputy sheriff outside the courtroom may very well limit what the deputy sheriff does inside the courtroom. For example, Judge Frazier mentions that he is concerned that his bailiff while outside the courtroom may become involved in a criminal investigation and, therefore, would have to testify at trial. Similarly, the judge states that he has had several trials where law enforcement officers have been witnesses. The officers usually testify in uniform and the bailiff wears his deputy sheriff uniform. Judge Frazier is concerned with undue influence of the jury because the bailiff has to interact so closely with the jury.
We cannot ignore Judge Frazier's concerns. Both the United States Supreme Court and this Court have declared error where a bailiff testifies and attends to the same jury. See Turner v. Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L.Ed.2d 424 (1965); State v. Kelley, ___ W. Va. ___, ___ S.E.2d ___ (No. 22205 11/21/94). In fact, the Court in Turner stated:
"It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone [the bailiffs] played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the juror's confidence in those who were their official guardians during the entire period of trial." 379 U.S. at 474, 85 S. Ct. 550, 13 L.Ed.2d at 429-30.
Footnote: 15 In Rutledge, 175 W. Va. at 380, 332 S.E.2d at 835, where circuit court clerks and all other county officials were distinguished, we stated:
"Unlike all other county officials, the office of circuit clerk is created under W.Va. Const. art. VIII, (the judicial article), and not under W.Va. Const. art. IX that creates elected county officials with executive and legislative duties, including the prosecuting attorney, sheriff, assessor, county commission, and clerk of the county commission."
Footnote: 16 For other Pennsylvania cases supporting this premise, see also Beckert v. American Federation of State, County and Municipal Employees, 56 Pa. Cmwlth 572, 425 A.2d 859 (1981), decree aff'd. Beckert v. American Federation of State, County and Municipal Employees, 501 Pa. 70, 459 A.2d 756 (1983), citing Eshelman, supra; Commonwealth ex rel. Bradley v. Pennsylvania Labor Relations Board, 479 Pa. 440, 444, 388 A.2d 736, 738 (1978) ("[a]ppellants [judges of the court of common pleas] have the power to hire, discharge, and direct the work of their court reporters").
Footnote: 17 W. Va. Code, 50-1-14, covers the duties of the sheriff, service of process, and bailiffs. The relevant portions are as follows:
"Subject to the supervision of the chief justice of the supreme court of appeals or of the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, it shall be the duty of the sheriff, or his designated deputy, to serve as bailiff of a magistrate court upon the request of the magistrate. Such service shall also be subject to such administrative rules as may be promulgated by the supreme court of appeals. A writ of mandamus shall lie on behalf of a magistrate to enforce the provisions of this section."
Footnote: 18 We emphasize that we do not hold that judges in every case, or even in the usual case, select the bailiff. The relief here is moulded to the particular facts of this case, where a sheriff and a circuit judge have reached an irreconcilable conflict that threatens to disrupt the efficient operation of the circuit court. As we concluded above, the selection of the
bailiff is ordinarily to be made in the first instance by the sheriff. Were we to hold otherwise, our decision would create a
possible conflict between W. Va. Code, 51-3-5, and Section 40 of Article VI of the West Virginia Constitution, which provides that the "legislature shall not confer upon any court, or judge, the power of appointment to office, further than the same is herein provided for."