Suzanne M. Weise, Esq.
DiTrapano & Jackson
Attorney for Petitioner
Darrell V. McGraw, Esq.
Chad Cardinal, Esq.
Office of the Attorney General
Attorney for Respondent
JUSTICE NEELY delivered the Opinion of the Court.
1. An administrator of a Regional Jail cannot enforce
a complete ban on either smoking or the use of smokeless tobacco
without following the procedures set forth in our administrative
procedures act, W. Va. Code 29A-1-1  et seq.
2. In our society the use of tobacco is sufficiently
customary that a total ban on the use of tobacco affects "private
rights, privileges and interests" as contemplated by W. Va. Code
29A-1-2 ; however, in light of Helling v. McKinney, 509 U.S.
___, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), a regional jail
administrator may limit smoking in such a reasonable way that smoke
will not intrude upon non-smokers, and may limit the use of
smokeless tobacco to those who dispose of smokeless tobacco in a
The Supreme Court of the United States decided in Helling
v. McKinney, 509 U.S. ___, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)
that an inmate states a cause of action under the U.S. Const.
Amend. VIII when he alleges that prison officials have, with
deliberate indifference, exposed him to levels of environmental
tobacco smoke that pose an unreasonable health risk.
On 25 March 1994 Larry Parsons, the administrator of the
South Central Regional Jail, announced that due to health, safety,
maintenance and sanitation concerns, the South Central Regional
Jail (SCRJ) would eliminate all tobacco use at SCRJ by 1 June 1994.
The plan to eliminate tobacco use included information pamphlets,
solicitation of assistance from support groups such as the American
Cancer Society, American Lung Association, and additional counselor
training. On 1 April 1994 inmates were notified of the tobacco
Three days after notice was given to the inmates, inmate
Richard Kincaid filed a document entitled "Request for Immediate
Temporary Injunctive Relief" in this Court, and because the Court
concluded that the denial of smoking privileges to persons housed
in a jail requires Court scrutiny, we granted Mr. Kincaid's petition as a writ of habeas corpus, appointed counsel and set the
case for argument.
On 18 April 1994, Mr. Parsons posted a memorandum to all
inmates explaining how the facilities' around-the-clock medical
staff and trained substance abuse counsellors would assist inmates
who might have difficulty stopping tobacco use. Importantly for
our decision here, the SCRJ's tobacco ban included smokeless
tobacco (i.e., snuff and chewing tobacco)-- substances that are
entirely beyond the contemplation of Helling, supra.
Mr. Parsons' memorandum reminded inmates of the Narcotics
Anonymous and Alcoholics Anonymous 12-step substance abuse programs
available at the facility. These methods of substance abuse
therapy are available to inmates, and the memorandum explained that
educational material including video tapes would be available to
inmates. Remarkably, however, although the health advantages of a
tobacco-free environment were extolled to the inmates, the staff of
the facility were provided with areas in which they could smoke,
and no effort was exerted to force staff who chose to smoke during
off-duty hours into counseling or substance abuse therapy.
Although this case raises important questions concerning
the extent to which persons awaiting trial can be denied the use of
such things as tobacco in the absence of a compelling government
interest related directly to the security of their detention
pending trial, and other important questions concerning the right
of people to make choices concerning such things as smoking versus
longevity, we decide this case today only on the narrow grounds of
legislative rule making and our administrative procedures act.
The respondents have adopted a rule at the Regional Jail
that is not only a drastic change from long-standing custom and
usage, but is also in direct conflict with the rules at other
regional jails and prison facilities in this State. The decision
to impose such an important rule cannot be left to the sole
discretion of the administrator of one regional jail; rather, the
State Administrative Procedures Act (APA) and W. Va. Code 31-20-9
 dictate that any legislative rule of this nature must be
promulgated pursuant to the APA's formal rule-making process.See footnote 1
The powers and duties of the Regional Jail and
Correctional Facility Authority are fully set forth in W. Va. Code
31-20-5 . Both the Authority and the Jail and Prison
Standards Commission (Commission) are governed by the provisions of
the West Virginia Regional Jail and Prison Authority Act, W. Va.
Code 31-20-1  et seq. The Commission is charged with the
duty of prescribing "standards for the maintenance and operation of
prisons, county and regional jails." W. Va. Code 31-20-9(1)
. W. Va. Code 31-20-9(2)  then provides that the
Commission "shall--- [p]romulgate such rules pursuant to the
provisions of [the APA] as are necessary to implement the
provisions of this article, including, without limitation, minimum
jail, work farm and prison standards[.]"
The rule-making procedures of the APA, W. Va. Code 29A-1-
1  et seq., are straight forward. The APA contains
comprehensive procedures for the proper promulgation of legislative
rules. Those rules adopted pursuant to the APA have the force and
effect of law. To ensure that each rule receives the most careful
consideration by an agency, public notice, public comment and
legislative review are required by the APA. W. Va. Code 29A-3-5
The total tobacco ban the respondent seeks to impose at
the SCRJ clearly falls within the classification of a "legislative
rule." W. Va. Code 29A-1-2(d)  provides:
(d) "Legislative rule" means every rule, as defined in subsection (i) of this section, proposed or promulgated by an agency pursuant to this chapter. Legislative rule includes every rule which, when promulgated after or pursuant to authorization of the legislature, has (1) the force of law, or (2) supplies a basis for the imposition of civil or criminal liability, or (3) grants or denies a specific benefit. Every rule which, when effective, is determinative on any issue affecting private rights, privileges or interests is a legislative rule. Unless lawfully promulgated as an emergency rule, a legislative rule is only a proposal by the agency and has no legal force or effect until promulgated by specific authorization of the legislature. Except where otherwise specifically provided in this code, legislative rule does not include (A) findings or determinations of fact made or reported by an agency, including any such findings and determinations as are required to be made by any agency as a condition precedent to proposal of a rule to the legislature; (B) declaratory rulings issued by an agency pursuant to the provisions of section one [§ 29A-4-1], article four of this chapter; (C) orders, as defined in subdivision (e) of this section; or (D) executive orders or proclamations by the governor issued solely in the exercise of executive power, including executive orders issued in the event of a public disaster or emergency . . . . [Emphasis added.]
The total ban on all tobacco products will have the force and effect of law, and it certainly will deny the inmates a pleasure time honored by custom. The passion with which smokers defend their prerogative to smoke is clear evidence that any attempt to ban smoking affects "private rights, privileges and interests."
In the present case, the respondents acknowledge that
they seek to ban all tobacco at the Regional Jail "due to health,
safety, maintenance and sanitation reasons." Respondents' Response
Brief at p. 1. By their own admission, then, the respondents, in
proposing to ban smoking, are clearly prescribing "standards for
the maintenance and operation" of the Regional Jail. The
Commission, however, has not promulgated any rules or regulations
establishing a total tobacco ban as set forth in the Act. No
opportunity for public comment or legislative review of the merits
of the new tobacco ban has been provided. Instead, the respondents
have chosen to ban smoking and the use of chewing tobacco and snuff
without following the rule-making procedures clearly required by
the APA. The rule in question was abruptly adopted by respondent
Parsons without prior notice to anyone.
Smoking is a valuable privilege that has been afforded
inmates since the inception of the prison system. In fact,
according to the annual report of the West Virginia Commissioner of
Public Institutions for the period July 1, 1969 to June 30, 1970,
inmates could earn money through the prison industries department
producing tobacco products. State ex rel. Pingley v. Coiner, 155
W. Va. 591, 604, 186 S.E.2d 220, 228 (1972). Although the right to smoke probably does not rise to the level of a State constitutional
right in a prison context, it is clearly a customary right that has
arisen over centuries notwithstanding the valiant efforts of both
puritans and public health advocates. Thus, before being deprived
of such a long-standing and customary right, the petitioner and
others similarly situated are clearly entitled to certain
procedural safeguards. Among procedural safeguards is the simple
requirement that the respondents comply with the rule-making
provisions of W. Va. Code 31-20-5  and the APA, and provide
for public comment and legislative review before a final rule is
adopted. The legislature would then have the opportunity to review
such a significant change in historic state prison policy.
Nonetheless, we recognize that nonsmoking inmates and inmates who do not use smokeless tobacco have rights that are at least as compelling as the petitioner's right to smoke. As in all matters where people are required to live in close proximity, reasonable accommodation is the proper course. Everyone must understand that his right to swing his arm ends at the other chap's nose. Thus, to the extent that the Regional Jail Authority wishes to make a part or parts of the facility tobacco-free, and wishes to impose reasonable sanitation requirements upon the use of smokeless tobacco such as no spitting in anything but a proper receptacle, it may do so. In light of the Supreme Court's holding in Helling, even in the absence of legislative rules, inmates cannot be allowed in an unfettered manner to impose environmental tobacco smoke upon others who wish to avoid breathing such smoke. Any rule should give protection to the rights of non-smokers.
Accordingly, for the reasons set forth above, the writ of
habeas corpus for which petitioner prays, as moulded, is awarded.
Footnote: 1 This is not to suggest that there cannot be facility-related variations in the rule to take into consideration variations in the nature of the physical plants.