No. 22226 -- State of West Virginia ex rel. Darrell E. Holmes,
Clerk of the Senate of West Virginia, and
Donald L. Kopp, Clerk of the House of Delegates of
West Virginia, Relators v. Glen B. Gainer III,
Auditor of the State of West Virginia, Respondent
and The Honorable Herman Canady, Judge of the
Circuit Court of Kanawha County, West Virginia,
Respondent, Donna J. Boley and Robert P. Pulliam,
Neely, J., dissenting in part:
I dissent to the court's holding that W.Va. Const. Art.
VI, § 33 prohibits the commission from submitting a proposal for
a pay increase other than once every four years. The majority
uses phrases such as "[i]t is our view" and "we do not believe";
however, our "view" and our "belief" have nothing to do with the
matter. The plain wording of W.Va. Const. Art. VI, § 33 permits
the commission "to meet as often as may be necessary and shall
within fifteen days after the beginning of the regular session of
the legislature in the year one thousand nine hundred seventy-one
and within fifteen days after the beginning of the regular
session in each fourth year thereafter submit by resolution to
the legislature its determination of compensation and expense
allowances, which resolution must be concurred in by at least
four members of the commission."
The plain words of § 33 allows the commission to meet
as often as it wishes, but it must submit a resolution every four
years. There is nothing contradictory or ambiguous in these
provisions, since as the facts of this case demonstrate,
governors may be surpassingly reluctant to appoint commissions
disposed to adjust legislative pay in an equitable way.
At the heart of this case is a loathing of all
politicians in general and a peculiar distaste for legislators in
particular. I take time to dissent in part because I believe
that someone should point out that the Legislature are the heros
and not the villains of the democratic process.
It was in the Legislature, over twenty-two years ago, that I held my first elective office, and those years were a far greater education than I had ever received at Dartmouth College or Yale Law School. I remember that the senators and delegates with whom I served during those years were among the highest quality people with whom I was ever associated-- then or now-- and the process of striking the right balance among competing interests was, perhaps, the greatest challenge and most compelling experience of my life.
But the problems that confronted us in those halcyon
days of economic boom and federal revenue sharing were as child's
play compared to the problems that confront our Legislature
today. Thus, it is the Legislature-- not this court, not the governor, and not the host of indifferent, merit-selection,
colorless, odorless and tasteless, coffee-sucking bureaucrats--
who must undertake the demanding and unenviable task of rescuing
a suffering West Virginia from the succession of tragedies and
reversals that have daunted our progress for the last fourteen
The reason that all legislators are unpopular and
thought deserving of economic penalties is that the legislature
is the great crucible of democracy--a monument to humane and
gentle government, characterized by accommodation and measured
straining in opposite directions. Had I not served in the House
of Delegates, I would never have understood the full dimensions
of the Founding Fathers' towering vision, nor would I have
appreciated the complaints that the leaders in recently freed
Eastern European countries have voiced that their societies hang
in the balance simply because of their own lack of experience in
Although the legislature is regularly taken for granted
here, it is interesting to reflect what a contribution to the
peace, order and prosperity of the world would attend the
peppering of Eastern Europe with just two hundred alumni and
alumnae of either house of the West Virginia Legislature. How
much would a citizens' compensation commission in Ukraine, Hungary, or Belarus pay our legislators to sort things out in a
peaceful way that would save thousands of lives and billions of
dollars in property?
The reason for the Legislature's generally low esteem
is that any legislature worth its salt is essentially in the
business of allocating scarce resources among competing ends.
Regretfully, a legislature is seldom called upon to decide
between right and wrong; rather, legislatures are called upon to
decide between right and right, and that always leaves everyone
who doesn't get everything he or she wants dissatisfied.
Perennial legislative fights involve rich versus poor, developer
versus environmentalist, capital versus labor, minorities versus
majorities, women versus men, pro-choice advocates versus right-
to-life advocates, industry versus agriculture, recipients of
social services versus taxpayers, parents and children versus
teachers and school boards, landlords versus tenants, and
creditors versus debtors.
There are some legislators who are lazy, incompetent
and generally despicable, just as there are such judges,
plumbers, doctors, garage mechanics, and internal revenue agents.
But the great majority of legislators work far beyond the hours
demanded by the sixty day regular session. Part-time legislators
must work as hard to get elected as officeholders who win full time jobs, and many legislators work as hard at being legislators
as those holding full time jobs when all the hours of constituent
telephone calls, town meetings, reading and answering
correspondence, and campaigning (which essentially involves the
useful work of meeting constituents and listening to their
concerns) are taken into account.
All this returns me, then, to an analysis of what was
behind the wording of W.Va. Const. Art. VI, § 33. Given the
pervasive hostility to legislators, it was thought necessary to
require the commission to meet at least once every four years and
to issue a report. However, to the extent the commission was
disposed to do so, it could meet more frequently and report as
often as it wished.
Now all of this makes perfectly good sense if we realize that the Legislature has not raised its pay every four years or even come close. This is only the third pay raise the legislature has afforded itself since 1971! In years when money is tight for teachers, public employees, judges, and the state police, the Legislature can hardly give itself a raise even if such a year falls upon the majority's magic fourth year. Occasionally it is politically possible to include the Legislature in a general raise, as occurred in 1994, and when that happens the Legislature should-- like every other public employee, teacher, judge, and cop-- have the benefit of having their salaries based on the fair value of their services in the year the raise is passed.