W. DONALD WESTON, M.D., ACTING DIRECTOR
Submitted: January 19, 1993
Filed: February 25, 1993
Attorney General Evans, West Virginia
Jeffrey K. Matherly Attorney for Intervenor
Deputy Attorney General District 1199, The Health Care
Charleston, West Virginia and Social Service Union-SEIU,
Attorney for the Appellees AFL-CIO
Daniel F. Hedges
Charleston, West Virginia
Attorney for the Appellant
JUSTICE MILLER delivered the Opinion of the Court.
1. Where the legislature, through the budget process,
expressly provides for funding to build a new public facility,
absent some constitutional challenge or an express statutory
provision to the contrary, the courts are not authorized to
interfere with the legislative mandate.
2. "'"'Where economic rights are concerned, we look to
see whether the classification is a rational one based on social,
economic, historic or geographic factors, whether it bears a
reasonable relationship to a proper governmental purpose, and
whether all persons within the class are treated equally. Where
such classification is rational and bears the requisite reasonable
relationship, the statute does not violate Section 10 of Article
III of the West Virginia Constitution, which is our equal
protection clause.' Syllabus Point 7, [as modified,] Atchinson v.
Erwin,  W. Va. , 302 S.E.2d 78 (1983)." Syllabus Point 4,
as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale
Grocery Co.,  W. Va. , 328 S.E.2d 144 (1984).' Syl. pt.
4, Gibson v. West Virginia Department of Highways, 185 W. Va. 214,
406 S.E.2d 440 (1991)." Syllabus Point 2, Robinson v. Charleston
Area Medical Center, 186 W. Va. 720, 414 S.E.2d 877 (1991).
3. "'Parties will not be permitted to assume successive
inconsistent positions in the course of a suit or a series of suits
in reference to the same fact or state of facts.' Syllabus,
McDonald v. Long, 100 W. Va. 551, 131 S.E. 252 (1926)." Syllabus
Point 2, Dillon v. Board of Education, 171 W. Va. 631, 301 S.E.2d
This is an appeal by the West Virginia Department of
Health and Human Resources from a September 1, 1992 order of the
Circuit Court of Kanawha County, which enjoined its plan to build
a 150-bed mental health facility near Weston, West Virginia. This
controversy stems from our earlier decision in E.H. v. Matin, 168
W. Va. 248, 284 S.E.2d 232 (1981), where we held that the State
must comply with the detailed provisions of W. Va. Code, 27-5-9
(1977), which concerns the treatment of mental patients.See footnote 1 To
accomplish this legislative mandate, we remanded the case to the
Circuit Court of Kanawha County to oversee the development of a
comprehensive mental health plan.
After a number of hearings, the parties agreed and the
circuit court accepted in October of 1983 what is termed the West
Virginia Behavioral Health System Plan (BHSP).See footnote 2 As originally
approved by the circuit court, the existing Weston Hospital was to
provide no more than 250 beds for the chronically mentally ill and
additional bed space for substance abuse and forensic services.
Subsequently, in July of 1986, the appellants, with the agreement of the appellees, obtained a modification of the 1983 circuit court order. In this order, the appellants agreed to construct a new psychiatric hospital containing no more than 250 beds for the mentally ill and also to provide for forensic services for no more than fifty adults. The completion date for the construction of this new facility was set at June 30, 1989.
The circuit court issued a restraining order in July of
1988 against the appellants requiring them to justify how the
proposed new psychiatric facility would be built without
endangering the overall funding of the BHSP. The appellants
responded by outlining a financing plan which involved the issuance
of revenue bonds by the West Virginia Hospital Finance Authority,
pursuant to its authority under W. Va. Code, 16-29A-1, et seq., and
in accordance with its Bond Resolution of July 19, 1989. The
legislature had approved and authorized this financing in its 1988-89 budget in Account No. 8500 of the Hospital Services Revenue
Account of the State Department of Health.See footnote 3
The question of financing the new hospital was apparently
resolved by the parties and another agreed order was approved by
the lower court on December 14, 1989. Under this order, the bed
number was reduced to 150 for psychiatric care and forty for the
forensic unit. It appears that the completion construction date
was extended into calendar year 1992. Thereafter, another agreed
order was entered on July 18, 1990, doing away with the 40-bed
forensic unit and leaving 150 beds for the treatment of the
Thereafter, the State Hospital Authority issued the
revenue bonds and site preparation was begun for the construction
of the hospital. However, on June 3, 1991, the appellees filed a
motion asking the circuit court to prevent the construction of the
hospital by amending its July 18, 1990 order. The reasons advanced
were that the State should not spend the money on a new hospital
facility because there were community mental health facilities that
could be utilized. Moreover, it was claimed that Medicaid funds
which could be obtained through community mental health facilities
could not be obtained at the new hospital. Finally, the appellees
asserted that it would be cheaper to build several regional
facilities than to build the larger new hospital.
The circuit court ordered that a hearing on this issue be
held before its court monitor on August 9, 1991. Subsequently, the
monitor filed formal recommendations with the circuit court on
September 6, 1991. Almost one year later, on August 31, 1992, the
circuit court issued an opinion letter which concluded that the
State should not construct the 150-bed hospital facility.See footnote 4 An
order prohibiting the construction of the hospital was entered on
September 18, 1992. It required the appellants to develop a plan
"based on a regionalized concept for individuals needing acute and
extended inpatient psychiatric treatment."
Prior to the entry of the circuit court order, the
appellants on September 3, 1992, filed a motion for stay of the
circuit court order pending an appeal. We granted a sixty-day stay
and subsequently the appellants filed their petition for appeal,
which we granted on November 9, 1992. We set an expedited final
hearing on the appeal for January 19, 1993.
A number of parties were granted amicus curiae status and have filed briefs. Most of these briefs address the merits of the circuit court's ruling blocking the construction of the new hospital and ordering the appellants to submit a plan for regional facilities. As discussed more fully below, we decline to address this issue as we conclude that the appellees and the circuit court were without authority to challenge the project.
It appears that both the appellees and the circuit court
may have misconstrued the nature of our mandate in the remand of
E.H. v. Matin, supra. It was not our intention to have the circuit
court operate as some type of a judicial super-secretary over the
actions of the West Virginia Department of Health and Human
Resources. In fact, in Matin, we cautioned:
"Where there is a good faith difference of opinion among equally competent professional experts concerning appropriate methods of treatment and custody, such differences should be resolved by the director of the West Virginia Department of Health and not by the courts." 168 W. Va. at 259-60, 284 S.E.2d at 238.
More to the point of this case, we have recognized that
ordinarily it rests with the legislature to make the determination
to close a statutorily created facility. As we explained in the
Syllabus of DeVault v. Nicholson, 170 W. Va. 719, 296 S.E.2d 682
(1982): "Where a women's prison has been created by a legislative
act, W. Va. Code, 28-5C-1  et seq., a legislative act is
required to close it." See also Jones v. Rockefeller, 172 W. Va.
30, 303 S.E.2d 668 (1983).
We believe that a corollary rule applies where the
legislature, through the budget process, expressly provides for
funding to build a new public facility, as was done here. Absent
some constitutional challenge or an express statutory provision to
the contrary, the courts are not authorized to interfere with the
legislative mandate. This principle rests on two grounds. The
first ground is our traditional recognition of the plenary powers
of the legislature which are subject only to constitutional
constraints. The second ground for judicial noninterference is
equally venerable; it is our constitutional doctrine of separation
of powers contained in Article V, Section 1 of the West Virginia
Constitution.See footnote 5 Thus, with regard to constitutional challenges
against legislative action, we exercise due restraint before
finding unconstitutionality. These two principles are found in
Syllabus Point 1 of State ex rel. Appalachian Power Co. v. Gainer,
149 W. Va. 740, 143 S.E.2d 351 (1965):
"In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt."
See also Syllabus Point 1, Robinson v. Charleston Area Medical
Center, 186 W. Va. 720, 414 S.E.2d 877 (1991); Syllabus Point 2,
West Virginia Public Employees Retirement System v. Dodd, 183
W. Va. 544, 396 S.E.2d 725 (1990); State ex rel. Metz v. Bailey,
152 W. Va. 53, 159 S.E.2d 673 (1968).
Moreover, we have held that ordinarily where a
constitutional challenge is made to legislation involving economic
matters, the legislation will be upheld if it rests on some
rational basis. As we explained in Syllabus Point 2 of Robinson v.
Charleston Area Medical Center, supra:
"'"'Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause.' Syllabus Point 7, [as modified,] Atchinson v. Erwin,  W. Va. , 302 S.E.2d 78 (1983)." Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co.,  W. Va. , 328 S.E.2d 144 (1984).' Syl. pt. 4, Gibson v. West Virginia Department of Highways, 185 W. Va. 214, 406 S.E.2d 440 (1991)."See footnote 6
We deem the financing of a public building by the legislature to
essentially involve an economic decision.
Here, the appellees made no attempt to assert any
constitutional challenge to either the validity of the hospital
project or its financing. The hearings below were centered on
whether, from a psychiatric standpoint, it was better to construct
regional centers or the new Weston Hospital. Expert testimony was
divided on this issue. Under our admonition in Matin, supra, which
we have earlier set out, the final decision rested with the
Furthermore, we have consistently held that principles of
estoppel will preclude a party from asserting inconsistent
positions during litigation. This principle was stated in Syllabus
Point 2 of Dillon v. Board of Education, 171 W. Va. 631, 301 S.E.2d
"'Parties will not be permitted to assume successive inconsistent positions in the course of a suit or a series of suits in reference to the same fact or state of facts.' Syllabus, McDonald v. Long, 100 W. Va. 551, 131 S.E. 252 (1926)."
In this case, since the approval of the original BHSP in
1983, it was contemplated that a psychiatric hospital would exist.
Certainly, the July 1986 agreed modification specifically required
the appellants to abandon the old Weston Hospital and construct a
new one. After this date, the various modification orders to which
the parties agreed dealt only with the number of beds and not with
the basic concept of having such a hospital. Of even more concern
is that after the circuit court's inquiry into the financing
mechanism for the hospital and its approval, the appellees made no
objection to the concept of building the new hospital.
It was not until the bonds were issued, the construction
plans were finalized, and construction started that the appellees
challenged the wisdom of building the hospital. Clearly, this
shift of position was barred by the principles of estoppel as
stated in Dillon, supra.
The actions taken in this case by the trial court bear
some resemblance to those set out in Syllabus Point 2, in part, of
our recent decision in Pell v. Board of Education, ___ W. Va. ___,
___ S.E.2d ___ (No. 21414 11/25/92):
"If a comprehensive educational facilities plan has been developed by a county board of education, approved by the state board of education, submitted to a regional educational services agency, granted approval for funding on a priority basis by the state school building authority, satisfied all requirements for approval, notice, and hearing pursuant to W. Va. Code, 18-5-13a , and contracts have been entered into to begin implementation of such plan, then it is arbitrary and capricious for a county board of education, with no articulated reasons, to take action that would cause the plan to not be implemented or to replace such plan with an alternative plan, where such action would place in jeopardy the possibility of obtaining the approved funding."
For the foregoing reasons, we find that the circuit court
erred in enjoining the appellants from proceeding with the
construction of the new psychiatric hospital facility and its order
is, therefore, reversed. Furthermore, we are concerned with
continued judicial involvement in the BHSP. As we have observed,
the earlier remand of this case to the circuit court was not
designed to allow perpetual judicial control over the decisions of
the West Virginia Department of Health and Human Resources relating
to the BHSP. We, therefore, delay the remand of this case for
thirty (30) days. We request the parties file a written response
advising this court of whether there is any need for continued
monitoring by the Circuit Court of Kanawha County.
Reversed and Remand
Delayed for Thirty Days
Footnote: 1The Syllabus Points of E.H. v. Matin, supra, state:
"1. W. Va. Code, 27-5-9 
provides specific rights to all mental
patients confined in the State hospitals of
West Virginia and these rights may be
enforced by an action in mandamus against the
responsible state officials.
"2. W. Va. Code, 27-5-9 
requires a system of custody and treatment in
State mental hospitals which reflects the
competent application of current, available
"3. It is the obligation of the
State to provide the resources necessary to
accord inmates of State mental institutions
the rights which the State has granted them
under W. Va. Code, 27-5-9 ."
Footnote: 2This document, consisting of some 330 pages, outlines the various standards, conditions, and facilities in the system, as well as proposed financing. The general scope of the plan may be gleaned from its chapter headings:
"§ 2 - Patient Treatment and Habilitation
Standards in Inpatient Facilities
"§ 3 - Psychiatric and Psycho-Geriatric
"§ 4 - Developmentally Disabled Services
"§ 5 - Alcoholism and Drug Abuse Services
"§ 6 - Juvenile Services
"§ 7 - Standards for Training, Staff
Development and Personnel
"§ 8 - Monitoring
"§ 9 - Comprehensive Continuum of Behavioral
Health Care - Community Services"
Footnote: 3This financing has been carried through in later legislative budgets.
Footnote: 4We are at a loss to understand why the circuit court delayed acting on the monitor's recommendations for this extended period of time.
Footnote: 5Article V, Section 1 of the West Virginia Constitution states:
"The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the
powers of more than one of them at the same
time, except that justices of the peace shall
be eligible to the legislature."
Footnote: 6This test is designed to meet constitutional claims based on a denial of equal protection, substantive due process and special legislation where economic legislation is involved. In Crain v. Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422 (1986), we determined that the West Virginia penitentiary at Moundsville was so unsuitable for use that it violated cruel and unusual punishment concepts contained in the Eighth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution.