IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
STATE OF WEST VIRGINIA EX REL.
REGIONAL JAIL AND CORRECTIONAL FACILITY AUTHORITY,
Petitioner Below, Appellant
COUNTY COMMISSION OF CABELL COUNTY,
BOB BAILEY, AS PRESIDENT; W. SCOTT BIAS, AS COMMISSIONER;
AND NANCY CARTMILL, AS COMMISSIONER,
Respondents Below, Appellees
Petition for a Writ of Mandamus
WRIT GRANTED AS MOULDED
Submitted: October 10, 2007
Filed: November 21, 2007
Gary E. Pullin
Ancil G. Ramey
J. Robert Russell
Hannah B. Curry
Pullin Fowler & Flanagan, P.L.L.C. Steptoe & Johnson, P.L.L.C.
Charleston, West Virginia Charleston, West Virginia
Chad M. Cardinal
William T. Watson
Charleston, West Virginia Huntington, West Virginia
Counsel for the Appellant Counsel for the Appellees
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. A writ of mandamus will not issue unless three elements coexist--(1) a
clear legal 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. Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling
, 153 W.Va.
538, 170 S.E.2d 367 (1969).
2. In matters having statewide impact and affecting the public interest that are
filed with the West Virginia Supreme Court of Appeals as a petition for mandamus but
returned at our direction to a circuit court for full development, upon appeal of
the lower court's order, we may elect pursuant to Rule 2 of the West Virginia Rules of
Appellate Procedure to suspend our usual practice of remanding with directions and grant
relief through a writ issued by this Court.
3. It is well established that the word 'shall,' in the absence of language in
the statute showing a contrary intent on the part of the Legislature, should be afforded a
mandatory connotation. Syl. Pt. 1, Nelson v. West Virginia Public Employees Ins. Bd.
W.Va. 445, 300 S.E.2d 86 (1982).
In this original mandamus action, (See footnote 1)
the West Virginia Regional Jail and
Correctional Authority (Authority) seeks to compel the County Commission of Cabell
County (Commission) to fulfill its obligation to pay for the care and upkeep of those
persons incarcerated in the West Virginia Western Regional Jail at the express direction of
Cabell County authorities. When the petition was initially filed, the arrearage owed by the
Commission was allegedly in excess of 1.5 million dollars with respect to fiscal year 2005. (See footnote 2)
Upon this Court's issuance of a rule to show cause before the Circuit Court of Cabell
County, discovery ensued in this matter. By order entered on May 15, 2006, the trial court
granted the Authority partial summary judgment and ruled that the Commission was liable
to the Authority for per diem charges assessed in connection with inmates housed at the
Western Regional Jail adjusted in accordance with the trial court's findings of fact and
conclusions of law. Upon our consideration of the Authority's appeal from the trial court's
ruling, we issue a moulded writ of mandamus as set forth below.
I. Factual and Procedural Background
In 1982, under the auspices of the Governor's Committee on Crime,
Delinquency, and Corrections, a special study called for the establishment of a regional jail
system to address the problems associated with the operation of individual county jails. In
response to this study, the Legislature created the West Virginia Regional Jail and Prison
Authority (now known as the West Virginia Regional Jail and Correctional Facility
Authority) through legislation known as the West Virginia Regional Jail and Correctional
Facility Authority Act (Act). See
W.Va. Code §§ 31-20-1 to - 32 (1985) (Supp. 2007).
Pursuant to the Act, the Legislature placed priority upon the development of regional jails
and developed a mechanism by which such correctional facilities could be constructed,
maintained, and operated in a cost-efficient manner. (See footnote 3)
Act, construction costs for the regional jail system are borne through
the issuance of bonds, paid primarily by fees related to convictions for criminal violations. See
W.Va. Code § 7-5-15 (2001), § 8-11-1(d) (1998). Operational costs for the regional jail
system are borne by the entities housing inmates in the facilities, the bulk of which is paid
for by county governments. See
W.Va. Code §§ 31-20-10,
31-20-10a; W.Va.R. Regional
Jail and Correctional Facility Authority Procedural Rule,
§ 94-3-5.2 (1995) (stating that
[t]he Authority shall collect the cost per inmate day from each entity for which an inmate
is maintained in a regional jail). The cost per day to house inmates, known as the per diem
rate, is set pursuant to West Virginia Code § 31-20-10(h) and regulations promulgated
pursuant to the statute. See
W.Va.R. § 94-3-5.
At the time when the Western Regional Jail opened on December 13, 2003,
the per diem rate set by the Authority was $45.00. On February 10, 2004, the Authority,
through its Board, voted to raise the per diem rate to $48.50. The events that precipitated
the filing of this proceeding include a string of serious budget setbacks suffered by Cabell
County, (See footnote 4)
which led to the Commission's decision to significantly reduce the figure budgeted
for its regional jail fee payments for fiscal year 2005. (See footnote 5)
As a result, the Commission quickly
fell in arrears with regard to its payments to the Authority. In an attempt to force the
Commission to pay its statutorily required per diem fees, the Authority filed a mandamus
action with this Court on June 15, 2005. By order entered on July 8, 2005, this Court issued
a rule returnable before the Circuit Court of Cabell County for such further proceedings as
necessary to determine the issues presented.
Following discovery and the filing of cross motions for summary judgment,
the trial court entered an order on May 15, 2006, through which it ruled that the Commission
was liable to the Authority for unpaid per diem charges for fiscal year 2005 based on a rate
of $40.42 (See footnote 6)
for every inmate day charged to the Commission from and after July 1, 2004. (See footnote 7)
Before sua sponte
directing a reduction in the per diem rate from
$48.50 to $40.42, the trial
court decided that certain procedural infirmities prevented the rate increase approved at the
February 10, 2004, meeting of the Authority's governing board from being valid. (See footnote 8)
addition, the trial court ruled that the procedural rule pursuant to which the Authority had
previously calculated the per diem rate was invalid based on statutory amendments adopted
in 1998 requiring the adoption of a legislative rule. See
W.Va. Code § 31-20-10(h) (1998).
In refusing to issue the writ of mandamus requested by the Authority, and while determining
that it was without authority to direct the Commission to act in a particular manner with
regard to the exercise of its budgetary authority, the trial court nonetheless cited its recent
pronouncement in the Chiles v. Bailey
decision in which it set forth the priority schedule that
a county with insufficient funds should adopt in seeking to fund its obligations: (1)
constitutional; (2) statutory; and (3) contractual. See supra
Through its appeal to this Court, the Authority seeks relief from the ruling of
the trial court on three separate grounds. First, the Authority argues that the trial court erred
in failing to issue a writ of mandamus requiring the Commission to remunerate it for per
diem charges already assessed and currently owed. Second, the Authority contends that the
trial court erred in ruling that the Authority could only charge the Commission for the
actual cost of housing each individual, instead of utilizing the criteria and procedures set
forth in a procedural rule to arrive at the per diem rate. (See footnote 9) See
W.Va.R. § 94-3-1. Finally, the
Authority maintains that the trial court erred in concluding that the Authority improperly
enacted an increase in the per diem rate at its February 10, 2004, meeting.
II. Standard of Review
As we recognized in Arneault v. Arneault
, 216 W.Va. 215, 605 S.E.2d 590
(2004), a de novo
standard of review applies to a circuit court's decision to grant or deny a
writ of mandamus. Id.
at 217, 605 S.E.2d at 592 (citing McComas v. Board of Educ. of
, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996)). As to whether a writ
of mandamus should issue in connection with this case, the controlling standard is set forth
in syllabus point two of State ex rel. Kucera v. City of Wheeling
, 153 W.Va. 538, 170 S.E.2d
367 (1969): A writ of mandamus will not issue unless three elements coexist--(1) a clear
legal 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
With these standards in mind, we proceed to examine the rulings of the circuit
court and to determine whether a writ should issue.
A. Original Jurisdiction
As an initial matter, we wish to address the Court's decision to treat this matter
now before the Court as one of original jurisdiction, rather than an appeal, in light of our
having issued the rule to show cause returnable to the Circuit Court of Cabell County. It has
been the historic practice of this Court and indeed the appellate rules of procedure
specifically provide for this Court to refer matters in need of factual development to a special
master or commissioner. See
W.Va.App.Pro.R. 14(f). In some cases presented to this Court
under our original jurisdiction, we have issued a rule returnable to a lower court for the
express purpose of determining whether an extraordinary writ should issue. See, e.g.,
Nobles v. Duncil
, 202 W.Va. 523, 505 S.E.2d 442 (1998). In this case, the undeveloped
record compelled this Court to issue the rule returnable to the Circuit Court of Cabell County
to permit both discovery and additional related proceedings that would enable a factfinder
to issue rulings on the issues presented.
Admittedly, the typical procedural manner in which this Court considers the
rulings of a trial court to whom a case was either referred or in which a rule was directly
returned is pursuant to standards related to appeal. See id.
at 528, 505 S.E.2d at 447. This
case, however, demonstrates a need to recognize that in matters having statewide impact and
affecting the public interest that are filed with the West Virginia Supreme Court of Appeals
as a petition for mandamus but returned to a circuit court for full development,
upon appeal of the lower court's order, we may elect pursuant to Rule 2 of the West Virginia
Rules of Appellate Procedure to suspend our usual practice of remanding with directions and
grant relief through a writ issued by this Court. As will be further developed below, the
facts of this case present a compelling basis for directly issuing a moulded writ of mandamus
rather than remanding this matter to the trial court with directions to do the same. (See footnote 10)
Accordingly, we will treat this case as it was initially filed with this Court -- as a petition
seeking a writ of mandamus pursuant to our grant of original jurisdiction. See W.Va. Const.
art. VIII, § 3.
B. Grounds for Relief Requested
In seeking a writ of mandamus from this Court, the Authority argues that this
case presents an urgent matter of public policy given that the structure of the regional jail
system is dependent upon payments from all counties using the system to cover the costs of
inmate care and housing. See
W.Va. Code § 31-20-10(h). Because the legislative schema
which underlies the regional jail system requires that all entities housing inmates within the
regional jails must fulfill their payment obligations, the Authority contends that the failure
of a large county such as Cabell to make its per diem payments can only result in either
unacceptably higher levels of cost, lower levels of service, or the eventual collapse of a well
thought out cost efficient system. Seeking to elevate the Commission's statutory duty to
make per diem rate payments to a constitutional level, the Authority suggests that [t]he care
and maintenance of inmates is a constitutionally required function of county government. (See footnote 11)
Responding to the Authority's attempt to color its statutory payment duties as
constitutional in nature, the Commission points out that prior to the Act's adoption the
counties clearly had a constitutional obligation to maintain the jails they operated in a
manner that complied with recognized prohibitions against cruel and inhuman treatment.
Once the Authority assumed the obligation to maintain the regional jail system, however,
the responsibility for meeting constitutional standards pertaining to inmates was firmly
imposed on the Authority rather than the Commission. In support of its position, the
Commission cites to this Court's decision in Kenny v. Webster County Court,
519, 21 S.E.2d 385 (1942), in which we recognized that the power of the county courts, in
the superintendence and administration of the internal police and fiscal affairs of their
counties has, from the very beginning of our statehood, been controlled and restricted by
legislative authority . . . . Id.
at 526, 21 S.E.2d at 388. (See footnote 12)
Adamant in its contention that the
legal obligation of the counties to the Authority is statutorily and not constitutionally based,
the Commission cites the language of West Virginia Code § 31-20-10a(c), which provides
that [t]he county is responsible for costs incurred by the Authority for housing and
maintaining inmates in its facilities who have not been committed to the custody of the
Commissioner of Corrections. (See footnote 13)
1. Clear Legal Right and Duty
Against these arguments, we proceed to examine whether there is a clear legal
right in the relief sought by the Authority (assessed per diem payments) and whether there
is a concomitant legal duty on the part of the Commission to make the payments that are at
issue in this case. See Kucera,
153 W.Va. at 539, 170 S.E.2d at 367, syl. pt. 2. Necessary
to our analysis is a recognition that the Legislature undisputedly has the power to create a
regional jail system. See generally
W.Va. Code §§ 30-20-1 to -32. And, as part of the
regional jail schema, the Legislature has the power to require the counties to use such
regional jails in lieu of the previous system of county jails. See
W.Va. Code § 31-20-10(g)
(requiring counties to use regional jails to house inmates upon construction). Under the
statutory scheme adopted in creating the regional jail system, the Legislature was acting
within its powers in establishing a system of remuneration whereby counties that incarcerate
individuals within the regional jails are obligated to remit to the Authority a reasonable per
diem rate for costs associated with the housing of such inmates. See id.
at § 31-20-10(h)
(providing for payment by counties to Authority for per diem costs for each incarcerated
Continuing in this same vein, we recognize that the Legislature was acting
within its powers in delegating to the Authority the duty to set a reasonable per diem rate in
connection with the costs associated with inmates housed at the regional jails. See
Code § 31-20-10(g). And, as part of this appropriate delegation of duties, the Legislature
could further require the Authority to promulgate rules for the purpose of identifying the
criteria and procedures necessary for setting the reasonable per diem rate. See id.
at § 31-20-10(h) (providing initially in 1985 for promulgation of procedural rules and in 1998,
expressly calling for legislative rules).
Pursuant to the original legislative enactment, only a procedural rule was
required for the purpose of delineating the criteria and procedures related to setting the per
diem rate charge, which was originally known as the cost per inmate day. See
§ 31-20-10(h) (1985). In accordance with that statutory directive, certain procedural rules
were adopted which remain in place today and upon which the Authority apparently
continues to rely to set the per diem rate charges. See
W.Va.R. § 94-3-5 (setting forth
provisions for calculating cost per inmate day). (See footnote 14)
In ruling on this matter below, the trial
court decided that the failure of the Authority to promulgate legislative rules for the purpose
of setting forth criteria and procedures for setting the per diem rates as required by statutory
amendments enacted in 1998 rendered the procedural rules invalid. See
W.Va. Code § 31-
There is no question that when the procedural rules at issue were adopted, the
rules resulted pursuant to a valid exercise of the properly delegated powers of rule making
granted to the Authority by the Legislature. Under the reasoning employed by the trial court,
once there was a statutory obligation to create a legislative rule, the procedural rule was
necessarily deprived of validity. While we certainly recognize that the Authority has yet to
fulfill its duty to comply with the statutory directive of adopting a legislative rule to replace
the previously adopted procedural rule with regard to the manner in which the per diem rates
are set, we do not reach the conclusion that the procedural rules lacked effect, either upon
the initial adoption of the statutory amendments in 1998 or currently when, despite the
passage of nine years, the legislative rule has yet to be promulgated and adopted. See W.Va.
Code § 31-20-10(h) (1998).
The unfortunate result that has occurred, either because of the apparent failure
of the Legislature or its oversight committee to force the Authority to comply with its
statutory directive to adopt a legislative rule, is that the Authority has been permitted to
continue operating the regional jails with essentially no legislative review as to the rate
setting issue. Because we do not discern any intent on the Legislature's part to repeal the
validly adopted procedural rule that was governing the rate setting methodology before the
1998 amendments, we are reluctant to adopt the trial court's position to essentially throw
out the baby with the bath water. Due to the normal passage of time required for drafting,
promulgating, and adopting legislative rules, there would have been a period of time after
the adoption of the statutory directive in 1998 during which the procedural rule necessarily
had to remain in force. Obviously, the Legislature would have anticipated the rule making
process mandated by West Virginia Code § 31-20-10(h) to have been finalized by now. But
the fact that it has not yet been accomplished does not convince this Court that the
procedural rule previously adopted is wholly without effect. We are inclined to conclude
that as a validly adopted procedural rule, the rule remains in effect until either withdrawn,
repealed, or replaced as a result of action taken by the Legislature or pursuant to the rule
making power of the Authority.
Notwithstanding the continuing validity of the procedural rule, we recognize
the existence of several consequential problems that have arisen by the inaction at issue.
First, and foremost, is the fact that any modifications that the Authority seeks to implement
in connection with the criteria and procedures relied upon for establishing the per diem rate
charges are valid only if they are effected pursuant to legislative rule. See W.Va. Code § 31-
20-10(h). With the passage of statutory amendments in 2004, the Act contains language
which arguably indicates that the Legislature contemplates that the per diem rate charges
shall be calculated separately for each respective regional jail. See, e.g., W.Va. Code § 31-
20-10a. Currently, each county's assessments for regional jail usage is calculated pursuant
to the same per diem rate structure. As this matter has demonstrated, even the application
of the criteria and procedures originally set in place by procedural rule is not without
dispute. (See footnote 15) Another serious issue that has developed due to the failure to adopt a legislative
rule for rate setting purposes is that the Authority has been deprived of guidance on how to
proceed with setting the per diem rate structure and the Legislature and the counties have
been denied the opportunity to participate in the rule making process that was clearly
envisioned as part of the 1998 amendments to West Virginia Code § 31-20-10(h).
2. Mandamus Relief for Rule Promulgation
This Court has previously been asked to rule upon the critical absence of rules
and regulations in the context of a mandamus proceeding. In State ex. rel. Billy Ray C. v.
190 W.Va. 504, 438 S.E.2d 847 (1993), the relator, a minor alleging police brutality,
sought the issuance of a writ of mandamus against the Secretary of the Department of
Military Affairs and Public Safety and the Superintendent of the Division of Public Safety
to create an impartial procedure for investigating allegations of alleged abuse committed by
police officers and to compel the Board of Risk and Insurance Management to issue rules
and regulations requiring the issuance of incident reports when the state's liability is
implicated. In discussing the right of the relator to bring allegations of abuse by a state
police officer to the attention of the superintendent of public safety, we observed that the
first prong of entitlement to relief under the standard set forth in Kucera
(clear legal right
to relief sought) 'is generally a question of standing.' 190 W.Va. at 507, 438 S.E.2d at 850
(quoting Smith v. W.Va. State Bd. of Educ.
, 170 W.Va. 593, 596, 295 S.E.2d 680, 683
(1982)). In addressing the second prong of Kucera
(legal duty to do that which petitioner
seeks to compel), we observed that the Superintendent of Public Safety was statutorily
charged with the mandatory duty to cause an investigation to be made of allegations against
an officer. (See footnote 16)
As far as the final prong of Kucera
(absence of other adequate remedy), we
recognized that where substantial public policy is involved, such as public safety, relief in
mandamus is appropriate unless there is another available remedy that is 'equally
beneficial, convenient and effective.' Skaff
, 190 W.Va. at 508, 438 S.E.2d at 851 (quoting
Syl. Pt. 2, in part, Stowers v. Blackburn
, 141 W.Va. 328, 90 S.E.2d 277 (1955)).
After recognizing the existence of an implicit duty to promulgate formal,
written investigative procedures as part of the mandatory duty to investigate police brutality
claims, we proceeded to direct in Skaff I
that such procedures be prepared consistent with
our directives within 120 days. 190 W.Va. at 508-09, 438 S.E.2d at 851-52. Then, based
on the language of West Virginia Code § 29-12-5(a) (1986) granting the Board of Risk the
authority to make rules and regulations governing its functions and operations, we
required the Board of Risk, to promulgate rules or regulations for State agencies covered
by the State's liability insurance policy that will enable the Board to promptly identify
potential liability claims against the State. Skaff I
, 190 W.Va. at 505_06, 438 S.E.2d at
848-49, syl. pt. 5, in part.
The case before us presents grounds even more compelling than in Skaff I for
issuing a writ of mandamus to compel the promulgation of a legislative rule because the
Legislature expressly directed that such rule be created for the purpose of determining the
cost per day for each incarcerated inmate. W.Va. Code § 31-20-10(h). With regard to the
standard for issuing a writ of mandamus in connection with the absent legislative rule, the
first prong of Kucera is easily met in this case as there is no question that the Authority is
statutorily imposed with the right to bring actions in any court. W.Va. Code § 31-20-5(g); see Kucera, 153 W.Va. at 539, 170 S.E.2d at 367, syl. pt. 2. And with regard to the duty to
create a legislative rule, the second prong of Kucera is established by statutory language
requiring the promulgation of such rule. See W.Va. Code § 31-20-10(h). Likewise, the
third prong, which requires the lack of another adequate remedy, may be fulfilled by the
presence of an issue of substantial public policy, as we discussed in Skaff I. 190 W.Va. at
508, 438 S.E.2d at 851.
Without question, this Court's decision to issue a moulded writ of mandamus
in Skaff I was galvanized by the concerns for public safety that were implicated in that
matter. As we stated in discussing our decision to issue the writ, [w]e believe that ensuring
that those entrusted by law to guard the public safety do not abuse their authority is a matter
of 'substantial public policy[.]' 190 W.Va. at 508, 438 S.E.2d at 851 (quoting Smith, 170
W.Va. at 597, 295 S.E.2d at 684). For reasons analogous to those presented in Skaff I, we
are obliged to view the case before us as one that similarly invokes substantial public policy
concerns and requires the issuance of a writ of mandamus to address certain pressing issues
concerning the statutory funding mechanism for the regional jail system that are of statewide
effect. That this state requires a functioning system of incarceration for the protection of its
citizens is beyond dispute. Moreover, it cannot be questioned that the continuing operation
of the regional jail system is a critical component of this state's ability to protect its citizenry
by separately housing those individuals who have been charged and/or convicted with
violating this state's criminal laws and thereby enforcing the criminal laws of this state.
Consequently, we believe that the public safety concerns intrinsically entwined with the
funding issues related to the regional jail system require us to address the relief required in
the action before us through the use of a moulded writ of mandamus.
While, as this Court made clear in Skaff II, we cannot use the power of
mandamus to prescribe the specific manner in which public officials shall act, we can and
do identify the following issues that should be addressed when the legislative rules setting
forth the criteria and procedures for setting the per diem rates are drafted. See 194 W.Va.
178, 182, 459 S.E.2d 921, 925 (1995). The procedural rule currently in effect does not
include the additional five regional jails that have been constructed since the passage of the
rule. (See footnote 17) The rule now in effect establishes the per diem rate charge based on rated bed
capacity rather than the historical occupancy, which has the potential result of overcharging
the counties. See supra n.15. As the trial court's ruling suggests, there is language in West
Virginia Code § 31-20-10a and elsewhere in the Act (See footnote 18) that suggests that the per diem rate
charges are to be separately calculated for each regional jail facility. (See footnote 19) See W.Va. Code § 31-
20-10a(b)(1). Guidance is also needed to address the tact adopted by the trial court that only
actual operational costs can be recovered by the Authority. W.Va. Code § 31-20-
10a(b)(2). While the Authority convincingly explained how it cannot wait until the end of
a given fiscal year to make assessments for the usage of the regional jails, this terminology
remains problematic and is in need of interpretation. See supra n.9. Another area in which
guidance would be useful is the issue of what types of costs qualify as those intended to be
viewed as indirect. Under the language of West Virginia Code § 31-20-10a(b)(1), the
Authority is permitted to include both direct and indirect costs related to operating and
maintaining the regional jail in preparing its operational expenditure schedule for each
regional jail. Id. Yet, the term indirect is not defined within the Act and to further
complicate the issue there is language elsewhere that excepts construction, acquisition or
renovation costs associated with the facilities from being included in setting the per diem
rates. W.Va. Code § 31-20-10(h). An obvious question arises as to what then is the
difference between a prohibited renovation cost versus an allowable maintenance cost. Cf. W.Va. Code §§ 31-20-10(h) to 31-20-10a(b)(1). Another issue identified by the trial
court that requires legislative guidance concerns which entity, county or municipality, is
responsible for inmates incarcerated following arrests by municipal law enforcement
agencies. (See footnote 20)
Clearly, all of the identified issues, and more, are deserving of careful
consideration in drafting a legislative rule that has been mandated since 1998. See W.Va.
Code § 31-20-10(h). The continued reliance by the Authority on an outdated procedural rule
cannot be permitted to continue. In our review of the record in this case, the current
legislative scheme permits the Authority to unilaterally choose the criteria and procedures
for per diem rate setting; to actually set the per diem rates; and to subsequently receive
moneys based on this self-contained system with absolutely no review by the Legislature as
a whole, or any other body, to assure that the proposed budgets of the respective regional
jails are sufficient both to achieve efficiency as to operation and to fulfill the objectives of
the regional jail system as a whole. Clearly, the case before us serves to demonstrate the
existence of a pressing need for serious consideration and review of the legislative schema
pursuant to which the regional jail system has been funding its operations.
3. Mandamus Relief for Assessed Per Diem Charges
a. Quorum Related Issues
As a precursor to addressing the Authority's entitlement to mandamus relief
with regard to the assessed per diem charges for fiscal year 2005, we must address the trial
court's decision to nullify the rate increase that resulted due to a vote of the Authority's
board members at the February 10, 2004, meeting. Under West Virginia Code § 31-20-3,
the Authority is governed by a board comprised of nine members, seven of whom are
entitled to vote on matters brought before the board. (See footnote 21)
A quorum of the voting members,
which is four, (See footnote 22)
is required for the board to take action under West Virginia Code § 31-20-
4(b). In its findings, the trial court determined that only two voting members were present
at the February 10, 2004, meeting of the board. While two additional individuals with
colorable voting rights did participate in some fashion, one by telephone and one by
proxy, the trial court concluded that such participation was not within the meaning of the
term present for purposes of requiring majority rule for any action taken by the board. Id.
(providing that [a] majority of the members of the board constitute a quorum, and a quorum
must be present for the board to conduct
The Board's chairman, Dan Huck, participated by telephone and Donna
Lipscomb attended the meeting in the stead of the Secretary of the Department of the
Administration, Tom Sussman. Under the statute, the member slot given to the secretary of
the department of the administration expressly permits this member to send his or her
designated representative to board meetings. W.Va. Code § 31-20-3. The minutes of the
February 10, 2004, meeting reflect that Ms. Lipscomb attended the meeting as the proxy
for Mr. Sussman.
In deciding that neither Mr. Huck's participation nor the vote of Ms. Lipscomb
was valid, the trial court cited the absence of any rules or regulations permitting members
to attend Jail Authority meetings by telephone in Mr. Huck's case and in Ms. Lipscomb's
case the existence of a procedural rule that bans proxy voting. In turn, we take issue with
both of these reasons. First, there is no question that Mr. Huck was actively involved in the
board meeting at issue, only that his participation was telephonic in nature. Due to time and
costs constraints, it has become customary for many governing bodies, even this one, to
permit participation by telephone for voting purposes from time to time as circumstances
may require. Consequently, we are reluctant to invalidate a specific vote at a meeting of the
Authority solely because a procedural rule expressly permitting telephonic participation has
not been formally adopted. W.Va. Code § 31-20-4(b). We do suggest, however, that when
the rule changes that are mandated by this opinion come under consideration, it would be
prudent to contemporaneously address this issue by means of either a procedural rule or a
statutory amendment that expressly permits or prohibits participation by telephonic means.
As to Ms. Lipscomb, the procedural rule cited by the trial court does not, upon
closer scrutiny, appear to support the exclusion of Ms. Lipscomb's participation in the
meeting. What the procedural rule does is to prohibit proxy voting; it does not prohibit the
selection of a designated representative to attend a meeting in the stead of the secretary of
the department of the administration. If it did, it would be in direct contravention of the
statutory language authorizing that particular department head to send his or her designated
representative. W.Va. Code § 31-20-3. What appears to have occurred here is that the use
of the term proxy was inartfully inserted in the minutes of the questioned meeting when,
in fact, Ms. Lipscomb was clearly intended, but perhaps not properly documented, to attend
as the statutorily permitted designated representative for Mr. Sussman. Our review of the
record in this case does not convince us that the intent of the procedural rule was violated.
Immediately following the language of the procedural rule that prohibits proxy voting is
express authorization for voting by a designated representative: [D]uly qualified members
of the Board, or their designee as provided by section three, article twenty, chapter thirty-
one of the code, are permitted to vote. W.Va.R. § 94-1-8.1 (emphasis supplied). The
record suggests that Ms. Lipscomb was attending as the designee permitted by statute; she
just did not have documentation reflecting that fact. (See footnote 23) Again, while we can appreciate the
technical issues that the trial court seized upon to invalidate the vote that took place at the
board meeting in issue, we are reluctant to invalidate the vote in issue solely due to lack of
guidance on what is required to qualify as a designated representative. We do, however,
suggest that a procedural rule clarifying what is required to comply with the meaning of a
designated representative under West Virginia Code § 31-20-3 specifically be adopted to
address the requirements, such as the preparation of a document which indicates whether the
authorization extended is continuing or limited to a particular meeting.
b. Statutory Entitlement to Payment
Having rejected the trial court's reasoning on whether a quorum of voting
members participated in the February 10, 2004, meeting, we proceed to examine whether
the rate increase approved during that meeting is subject to enforcement. After deciding that
the absence of a quorum stood as a bar to effectuating the per diem rate increase from
$45.00 to $48.50, the trial court proceeded to essentially rewrite the criteria and procedures
by which the per diem rate was to be set. Focusing on the term actual operational costs,
the trial court sua sponte
proceeded to reduce the per diem rate adopted by the Authority to
only $40.42 (See footnote 24)
and directed that this would be the rate for purposes of determining what
amount the Commission owed to the Authority from July 1, 2004, on for fiscal year 2005.
We fully appreciate the dire financial circumstances that led the Commission
to challenge the $48.50 per diem rate approved by the Authority at the February 10, 2004,
meeting, and we take judicial notice of the fact that escalating regional jail costs have
effectively crippled the counties of this state with regard to their respective budgetary
decisions. We find our collective judicial hands to be tied, however, as far as upholding the
reduction in payments granted by the trial court. The combination of an insufficient record
to support the actions taken by the trial court combined with the statutory mandate that
requires the Commission's payment of amounts assessed by the Authority for the
incarceration of inmates at the regional jails does not permit this judicial body to approve
the sua sponte
reduction in rates adopted by the trial court.
While we are greatly troubled by the apparent lack of documentation submitted
at the February 10, 2004, meeting of the board to support the increase in the per diem rate,
at the same time we have no basis from which to conclude that the increased rate was not
justified in terms of the still valid criteria and procedures for setting such rate. (See footnote 25)
line is that we cannot independently confirm that $48.50 is the per diem rate required by
performing calculations suggested by the operational expenditure schedules included in the
record of this case. See
W.Va. Code § 31-20-10a(b)(1). But neither can we definitively
conclude that such rate is not justified by the actual or projected expenditure schedules.
Consequently, we are constrained to conclude that the record before us does not justify the
unilateral rate reduction implemented by the trial court or the unilateral change in the
methodology employed to arrive at the per diem rate.
Given this Court's duty to uphold the laws of this state which includes the
enactments of our Legislature, we are similarly constrained to recognize the mandatory
language directing that the counties shall pay for the costs of operating the regional jail
facilities of this state to maintain each inmate as well as the statutory language that imposes
responsibility on the counties for costs incurred by the Authority for housing and
maintaining inmates in its facilities. W.Va. Code §§ 31-20-10(h); 31-20-10a(c). As we
stated in syllabus point one of Nelson v. West Virginia Public Employees Insurance Board
171 W.Va. 445, 300 S.E.2d 86 (1982): It is well established that the word 'shall,' in the
absence of language in the statute showing a contrary intent on the part of the Legislature,
should be afforded a mandatory connotation. Accordingly, we conclude that the statutory
provision imposing mandatory payment obligations on the Commission for inmates housed
in the regional jail is clearly subject to enforcement. Furthermore, the trial court was without
the authority to reduce the amount of assessments made by the Authority in reliance on the
mandatory payment provisions set forth in West Virginia Code § 31-21-10(h). Accordingly,
the Commission is required by statute to remit payment to the Authority for those amounts
assessed for per diem payments in connection with fiscal year 2005. Insofar as the trial
court improperly reduced the per diem rate pursuant to which the Commission was obligated
to pay the Authority for fiscal year 2005, the Commission remains responsible for the
amounts as originally assessed for such period.
Having concluded that the trial court exceeded its authority in reducing the per
diem rate and in effectively rewriting the criteria and procedures to be relied upon in setting
such rate, we recognize the unenviable position the Commission finds itself in _ the
proverbial position of being between a rock and a hard spot _ given the limited funds it has
to apportion between the competing and equally deserving interests vying for such funds. (See footnote 26)
That this matter is urgently deserving of serious attention from the Legislature cannot be
disputed. When asked to use its power of mandamus to enforce a statute charging counties
with contributing to a general relief fund for the poor, (See footnote 27)
this Court observed with great
that [b]oth the Legislature and state officials should refrain from
imposing upon county courts, and other fiscal bodies, greater burdens than their revenues
justify. 124 W.Va. at 531, 21 S.E.2d at 390. Sadly, the situation foreshadowed in that
1942 decision has come home to roost. The Legislature has imposed upon the county courts
greater burdens than their revenues justify. Id.
That the counties are in need of some form
of relief from fully shouldering the costs of the regional jails seems clear. Notwithstanding
our recognition of these serious funding-related concerns, the Commission remains obligated
to pay those assessed per diem charges that have accrued since 2005 which remain unpaid.
C. Relief Granted
In consideration of the cumulative discussion above, we grant a writ of
mandamus moulded as follows:
1. The Authority shall promptly meet and formulate a proposed
legislative rule as provided for by West Virginia Code § 31-20-
10(h) for review by the Legislature and faithfully pursue the
promulgation of such a rule.
2. The proposed legislative rule should specifically address
whether the per diem rate charge authorized by West Virginia
Code § 31-20-10(h) is a uniform or distinct rate with regard to
each of the regional jails.
3. The proposed legislative rule should address whether the per
diem rate calculation is to be based upon the rated bed capacity
of each regional jail or the historical population of such facility.
4. In the event the issue of a per diem rate increase arises
before the adoption of the contemplated legislative rule, full
documentation should be distributed to the board members to
enable the membership to assess whether the rate increase has
been calculated in accordance with existing criteria and
procedures adopted for setting such rate. (See footnote 28)
5. The Authority should promptly consider and promulgate a
procedural rule that addresses the issue of telephonic
participation at its board meetings and further addresses the
manner in which the selection of a statutorily permitted
designated representative shall be duly authorized.
Having set forth the terms of this moulded writ, we stress that nothing in this writ shall be
construed as limiting the plenary powers of the Legislature to modify Article 20, Chapter 31
of the West Virginia Code of 1931, or to achieve by legislation all or any part of the matters
addressed through the issuance of this moulded writ. Clearly, the Legislature may choose
to address legislation directed at the issues included in the writ and may certainly elect to
modify the laws under discussion in any other manner deemed appropriate within the ambit
of its constitutionally granted powers. It remains, however, the clear duty of the Authority
to promptly and fully comply with this writ as to any matters not addressed specifically by
the Legislature and to act without delay despite the possibility of forthcoming legislative
action concerning the issues raised herein.
The West Virginia Regional Jail and Correctional Authority initiated this
matter as a petition for a writ of mandamus on June 15, 2005, pursuant to this Court's
original jurisdiction. See W.Va Const.
art. VIII, § 3; see also
W.Va. Code § 31-20-5(g)
(1998) (granting Authority power to sue in any court). We returned a rule to show cause to
the Circuit Court of Cabell County for the purpose of taking sufficient discovery to permit
the matter to be fully addressed, which culminated in the issuance of a partial grant of
summary judgment to the Authority by order dated May 15, 2006. As discussed in the text
of this opinion, this Court elects to treat this matter in the same procedural posture
(mandamus) as when it was originally filed with this Court, given the statewide affect of this
decision and the public interests at stake in this case.
According to the Stipulation entered into by the parties and filed with the trial
court on March 31, 2006, the arrearage owed by the Commission was reduced to
$457,355.00 for fiscal year 2005 based on additional payments made during the pendency
of this proceeding.
To date, ten such regional jails have been constructed.
A separate lawsuit was filed against the Commission by the Cabell County
Prosecutor, Circuit Clerk, County Clerk, Assessor, and Sheriff, when the Commission
approved a budget on March 2, 2005, wherein the budgets for many of the county offices
were significantly reduced in an effort to meet Cabell County's projected obligation to the
Authority. As a result of that lawsuit, a writ of mandamus and a permanent injunction were
entered by the Circuit Court of Cabell County on March 23, 2005, prohibiting the
Commission from proceeding with the budget resolution passed on March 2, 2005, based
on the operational impediments constitutional officers would experience due to such cuts.
In addition, the Commission was directed to address its budget problems pursuant to the
following priorities: [A] county must first fully fund all of its constitutional obligations
and, thereafter, if additional funds remain, fund so much of its statutory obligations as
possible and, thereafter, if additional funds remain, fund so much of its contractual
obligations as possible. Chiles v. Bailey,
No. 05-C-162 (Cir. Ct. Cabell Co. March 22,
To illustrate, in fiscal year 2003-2004, the Commission budgeted $1,635,839
for regional jail fees and yet for fiscal year 2004-2005, the budgeted amount was only
$1,089,322 for the same fees.
The rate of $40.42 was a figure stipulated to result from dividing the actual
operating expenses for the Western Regional Jail by the actual number of inmate days.
According to the stipulation, the per diem rate calculation that resulted by applying the
formula outlined in W.Va.R. § 94-3-1 was $55.22, based on dividing the actual operating
expenses by bed capacity.
The trial court provided for an increase of that rate through use of a temporary
surcharge if the actual operational costs per inmate day of the Western Regional Jail exceed
$40.42 by more than ten percent. See
W.Va. Code § 31-20-10a(2).
Those procedural issues center on the issue of whether a quorum was present
at the meeting in which the rate increase was adopted due to the telephonic participation by
one board member as well as the question of whether another individual who attended by
proxy, was in fact the statutorily permitted designated representative of one of the board
W.Va. Code § 31-20-3.
The Authority observes: The only reason that the parties were able to
calculate the actual costs
for the circuit court in this case is that the issue did not reach the
court until after the fiscal year  had ended. As the Authority further posits, the
realities of operating the regional jail system will not permit waiting until the end of a fiscal
year to assess each county and then waiting the attendant amount of time to receive
reimbursement . . . .
Illustrative of the need for a ruling directly from this Court is the decision of
at least six county commissions to unilaterally reduce the amount of their per diem payments
to the Authority based on the ruling of the circuit court, a ruling that was limited in scope
to payments owed by the Commission to the Authority for the Western Regional Jail for
fiscal year 2005. In its brief to this Court, the Authority represents that per diem payment
reductions have been taken by Lincoln, Mingo, Wayne, Fayette, Harrison, and Taylor
Counties, all by citing to the May 15, 2006, order issued by the trial court in this case.
To support this contention, the Authority looks to the obligation imposed on
county forms of government to administer both police and fiscal affairs. See W.Va. Const.
art. IX, § 11. Further, the Authority suggests that the need to provide certain minimum
standards of conduct for both pretrial detainees and inmates compels the conclusion that the
obligation of counties to make per diem rate payments should be treated as more than merely
a statutory obligation. See U.S. Const.
amends. VIII, XIV.
Additionally, the Commission notes that it is the Authority who is now
named as a party in any lawsuit brought by inmates raising constitutional claims. See, e.g.,
Sutphin v. Reg'l Jail Auth.,
No. 2:10-0588 (S.D. W.
Because this statutory provision did not go into effect until July 1, 2004, we
continue to rely on West Virginia Code § 31-20-10(h) as the statutory provision that initially
imposed a duty upon the counties to pay the Authority for inmate related costs. However,
West Virginia Code § 31-20-10a(c) clearly provides additional authority for the payment
obligation imposed on the counties who incarcerate inmates at the regional jails.
Under this procedural rule the general methodology by which the inmate cost
per day is determined is as follows: The Authority shall sum the operational costs of each
regional jail and shall divide the total of such anticipated operational expenditures by the
total anticipated number of inmate days in each of the regional jails to yield the cost per
inmate day as the quotient. W.Va.R. § 94-3-5.1. Additionally, the procedural rule provides
a formula for determining the anticipated number of inmate days in a fiscal year (product of
bed capacity of regional jail multiplied by capacity factor of ninety percent multiplied by
number of days in fiscal year). W.Va.R. § 94-3-5.1.2. With regard to five of the ten
regional jails, the procedural rule expressly identifies the bed capacity for those facilities (i.e.
Eastern, Central, South Central, Northern, and Southern). Id
One disputed issue that needs to be addressed as far as setting the per diem
rate charges concerns the use of a facility's rated bed capacity versus the historical
occupancy of the particular regional jail. While the procedural rule contemplates the use of
a rated bed capacity, the Authority has apparently been using historical occupancy rates
instead for rate setting purposes. And as a result, the Commission notes that this manner of
rate assessment has actually resulted in a surplus of funds to the Authority.
W.Va. Code § 15-2-21 (1977) (requiring that Superintendent shall cause
an investigation to be made).
The procedural rule identifies rated bed capacity for those five regional jails
that were in existence when the rule was adopted in 1994.
W.Va. Code §§ 31-20-10(f)(5) (providing for requisition from
separate accounts funded by counties under mandate of W.Va. Code § 31-20-10(h) to pay
for costs incurred at the regional jail facility at which each inmate was incarcerated).
As discussed above, the per diem rate structure is assessed to the counties on
an across-the-board basis with the same per day cost assessed for each incarcerated inmate.
According to the trial court's order, the Authority takes the position that
municipalities are responsible for inmates processed through municipal court, but that
counties are responsible for inmates processed through magistrate court.
Under the statute the following individuals comprise the Authority's board:
[T]he commissioner of the division of corrections; the director
of the division of juvenile services; the secretary of the
department of military affairs and public safety; the secretary of
the department of administration, or his or her designated
; three county officials appointed by the governor,
no more than two of which may be of the same political party;
and two citizens appointed by the governor to represent the
areas of law and medicine. The commissioner of the division
of corrections and the director of the division of juvenile
services shall serve in an advisory capacity and are not entitled
to vote on matters coming before the authority. Members of the
Legislature are not eligible to serve on the board.
W.Va. Code § 31-20-3 (emphasis supplied).
The documentation that this Court anticipates would be distributed would
clearly set forth the formula by which the rate is determined and supply sufficient financial
information to fully support the requested increase.