No. 27905 - State of West Virginia ex rel. The League of Women Voters
of West Virginia; American Civil Liberties Union of West
Virginia; West Virginia Citizen Action Group; West Virginia
Education Association; Common Cause of West Virginia; and
Delegate Arley R. Johnson, a member of the West Virginia
House of Delegates v. Earl Ray Tomblin, President of the
West Virginia Senate, and Robert S. Kiss, Speaker of the West
Virginia House of Delegates, and the Office of Governor of
the State of West Virginia
Davis, J., dissenting:
The Honorable Chief Justice Thomas B. Miller, in his dissent to Common Cause of W. Va. v. Tomblin, 186 W. Va. 537, 413 S.E.2d 358 (1991), eloquently predicted that the Court's decision therein to permit the Budget Digest to include additional expenditures not approved of by the entire Legislature during its Regular Session was, in fact, a great deal of unreality and a future potential for much mischief. Id., 186 W. Va. at 579, 413 S.E.2d at 400. Much to the chagrin of the citizens of this State, Chief Justice Miller's prophesy has become self-fulfilling. And, like the proverbial ostrich who sticks his head in the sand to avoid seeing the obvious, the majority of this Court has refused to recognize the blatantly unlawful nature of the present Budget Digest preparation practice by actually allowing one of the biggest legal fictions in West Virginia history to continue unchecked ad infinitum. Although I agree that a writ of mandamus should be issued in this case, I do not concur with my colleagues as to the nature of the relief that should be awarded. Rather than the toothless writ they have deemed to be appropriate, I believe that the proper remedy is to require the Legislature, in its future preparation of the Budget Digest, to strictly abide by the clear directives contained in Article VI, section 51 of the West Virginia Constitution and W. Va. Code § 4-1-18 (1969) (Repl. Vol. 1999). At present, however, the Legislature's actions could not be further from those prescribed by the above-referenced authorities.
In its announcement of today's decision, the majority has obfuscated the law
which governs this proceeding by crafting new holdings which do not acknowledge the
actual state of affairs underlying the instant controversy and by reaching an ultimate result
that is completely at odds with its analysis. As an alternative to the convoluted reasoning
relied upon by the majority of my brethren, I submit that the more straightforward and
legally sound approach rests upon longstanding principles of established law.
Of particular importance to the instant proceeding is the composition of the legislative branch. In this regard, the Constitution provides that [t]he legislative power shall be vested in a senate and house of delegates. W. Va. Const. art. VI, § 1 (emphasis added). Thus, it is apparent that West Virginia's Legislature is bicameral in nature, meaning that an action of the Legislature contemplates action by both houses thereof. See Lusher v. Scites, 4 W. Va. 11, 13 (1870) (The legislative power is an attribute of sovereignty, and the exercise of that attribute is vested by the people of the State in the Senate and House of Delegates. (emphasis added) (citation omitted)); Boyers v. Crane, 1 W. Va. 176, 180 (1865) ([T]he legislative power is vested in the Senate and House of Delegates[.] (emphasis added) (citation omitted)). Likewise, neither legislative chamber may act alone in a bicameral system.See footnote 2 2
In addition to establishing our tripartite system of government and defining the components of the legislative branch thereof, the Constitution also delineates specific duties for each of the government's separate branches. At issue in the petitioners' request for relief are the particular duties ascribed to the Legislature vis-a-vis the budgetary process. In section 51 of Article VI of the West Virginia Constitution, the procedure for proposing the budget bill, as well as any appropriations extraneous thereto, is set forth in great detail. Insofar as supplemental appropriations are concerned, this section directs that [t]he legislature shall not appropriate any money out of the treasury except in accordance with provisions of this section, W. Va. Const. art. VI, § 51, and that [e]very appropriation bill shall be either a budget bill, or a supplementary appropriation bill . . . . Id. at subsec. A, para. 1. Accord Syl. pt. 10, Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d 816 (1989) ('Section 51, Article VI, West Virginia Constitution, commonly known as the Budget Amendment, is couched in mandatory terms, and clearly embraces a mandate of the electorate of this State governing the Legislature in the appropriation of [public] funds.' Syl. Pt. 2, State ex rel. Trent v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953).).See footnote 3 3
Once it has been determined that supplementary appropriations are necessary, the Constitution provides further guidance for their consideration.
Neither house shall consider other appropriations until the budget bill has been finally acted upon by both houses, and no such other appropriations shall be valid except in accordance with the provisions following: (a) Every such appropriation shall be embodied in a separate bill limited to some single work, object or purpose therein stated and called therein a supplementary appropriation bill; (b) each supplementary appropriation bill shall provide the revenue necessary to pay the appropriation thereby made by a tax, direct or indirect, to be laid and collected as shall be directed in the bill unless it appears from such budget that there is sufficient revenue available.
W. Va. Const. art. VI, § 51, subsec. C, para. 7.
An appropriations bill may be enacted into law only after it has been duly considered and approved by both legislative chambers and, thereafter, presented to the Governor for approval or disapproval.
Every budget bill or supplementary appropriation bill passed by a majority of the members elected to each house of the legislature shall, before it becomes a law, be presented to the governor. The governor may veto the bill, or he may disapprove or reduce items or parts of items contained therein. If he approves he shall sign it and thereupon it shall become a law. The bill, items or parts thereof, disapproved or reduced by the governor, shall be returned with his objections to each house of the legislature.
Each house shall enter the objections at large upon its journal and proceed to reconsider. If, after reconsideration, two thirds of the members elected to each house agree to pass the bill, or such items or parts thereof, as were disapproved or reduced, the bills, items or parts thereof, approved by two thirds of such members, shall become law, notwithstanding the objections of the governor. In all such cases, the vote of each house shall be determined by yeas and nays to be entered on the journal.
A bill, item or part thereof, which is not returned by the governor within five days (Sundays excepted) after the bill has been presented to him shall become a law in like manner as if he had signed the bill, unless the legislature, by adjournment, prevents such return, in which case it shall be filed in the office of the secretary of state, within five days after such adjournment, and shall become a law; or it shall be so filed within such five days with the objections of the governor, in which case it shall become law to the extent not disapproved by the governor.
Id. at subsec. D, para. 11 (emphasis added).
Given that the grant of authority to the Legislature generally encompasses all
that is not specifically prohibited by the Constitution,See footnote 4
it is apparent that the Legislature
is empowered to appropriate money from this State's treasury as long as it complies with
the procedures set forth in W. Va. Const. art. VI, § 51. See Robert M. Bastress, The West
Virginia State Constitution: A Reference Guide 180 (1995) (The first sentence of section
51 . . . makes clear that the legislature must use the procedures in this section to
appropriate any money from the treasury.). In fact, this Court has previously observed
that [t]he power to appropriate money is vested exclusively in the legislature. State ex
rel. West Virginia Bd. of Educ. v. Miller, 153 W. Va. 414, 420, 168 S.E.2d 820, 824
(1969) (citing Sims, 138 W. Va. 244, 77 S.E.2d 122).See footnote 5
When particular responsibilities have been ascribed to the Legislature, the focus then shifts to a determination of whether that particular function is a purely legislative duty. Such a distinction between pure legislative duties and discretionary tasks, which have been assigned to the Legislature, is important as the former are not delegable while the latter may be delegated for performance by another governmental entity. Purely legislative power, which can never be delegated, has been described as the authority to make a complete law---complete as to the time when it shall take effect and as to whom it shall be applicable---and to determine the expediency of its enactment. State ex rel. West Virginia Hous. Dev. Fund v. Waterhouse, 158 W. Va. 196, 211, 212 S.E.2d 724, 733 (1974) (internal quotations and citations omitted).See footnote 6 6 [U]nder the separation of powers provision of the Constitution of this State, the power of enacting legislation is vested solely in the legislature, State ex rel. Carson v. Wood, 154 W. Va. 397, 401, 175 S.E.2d 482, 485 (1970), and, as a general rule in this jurisdiction, the legislature cannot delegate its power to make law, Waterhouse, 158 W. Va. at 211, 212 S.E.2d at 733. Accord State v. Grinstead, 157 W. Va. 1001, 1013, 206 S.E.2d 912, 920 (1974) (The authority to enact laws, being exclusively a legislative function, cannot be transferred or abdicated to others. (citation omitted)). Because the process of appropriating funds necessarily entails the enactment of such directives into law, the Legislature's appropriations authority is a purely legislative duty which is not delegable. See generally W. Va. Const. art. VI, § 51 (providing procedure whereby legislatively proposed appropriations are ultimately enacted into law).
The focus of the majority's inquiry, then, should have been to answer two
simple questions arising from this statutory language. First, whether W. Va. Code § 4-1-
18, which directs the preparation of a Budget Digest document, is constitutional. And
second, whether the Legislature's present method of preparing the Budget Digest, wherein
additional allocations are made which have not been approved by the entire Legislature or
by the Governor, complies with the mandates of this statute.
Syl. pt. 3, State ex rel. West Virginia Hous. Dev. Fund v. Copenhaver, 153 W. Va. 636,
171 S.E.2d 545 (1969).See footnote 7
Upon reading the plain language of W. Va. Code § 4-1-18, no
constitutional infirmities are apparent on the face of this statute.
The plain language of § 4-1-18 directs the Legislature, through its conferees committee on the budget, to prepare a digest or summary of the budget bill containing detailed information regarding the Legislature's amendments to the Budget Bill originally submitted to it by the Governor and reflecting the final version of the Budget Bill enacted by the Legislature. W. Va. Code § 4-1-18. Absent statutory definitions for the terms digest and summary, the commonly-accepted usage of these words must be employed. See, e.g., Syl. pt. 1, McCoy v. VanKirk, 201 W. Va. 718, 500 S.E.2d 534 (1997) ('In the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.' Syllabus Point
1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled on
other grounds [by] Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477
In common parlance, the term digest signifies a summation or
condensation of a body of information. Webster's Ninth New Collegiate Dictionary 354
(1983). Accord Random House Webster's Unabridged Dictionary 553 (2d ed. 1998)
(construing digest as a collection or compendium, usually of . . . legal . . . matter, esp.
when classified or condensed). Similarly, summary is commonly defined as an
abstract, abridgment, or compendium. Webster's Ninth New Collegiate Dictionary, at
1181. Accord Random House Webster's Unabridged Dictionary, at 1904 (indicating that
summary denotes a comprehensive and usually brief abstract, recapitulation, or
compendium of previously stated facts or statements). Therefore, W. Va. Code § 4-1-18
commands the Legislature to prepare a synopsis of the Budget Bill submitted to the
Governor for approval or disapproval, with notations as to the Legislature's changes to the
Governor's original Budget Bill.
It has further been determined that the purpose of such a document is to provide insight as to the legislative intent inherent in the Budget Bill but which may not be readily apparent therefrom. Common Cause, 186 W. Va. at 540, 413 S.E.2d at 361 (commenting that this Court has looked to the Budget Digest to help us ascertain the intent of the legislature in making specific appropriations (citation omitted)); Hechler v. McCuskey, 179 W. Va. 129, 133, 365 S.E.2d 793, 797 (1987) (recognizing that [t]he Legislature uses this Digest as its detailed explanation concerning the manner in which appropriations are to be expended); Jones v. Rockefeller, 172 W. Va. 30, 34 n.4, 303 S.E.2d 668, 672 n.4 (1983) (observing that legislative intent as to contemplated expenditure of budgetary appropriations may be gleaned from the Budget Digest). In fact, the Digest, itself, announces that it is prepared to provide detail regarding the intent of the Legislature in enacting certain appropriations. Legislature of West Virginia, Digest of the Enrolled Budget Bill 1 (Fiscal Year 1999-2000). Thus, the plain language of this statute reflects that the Digest is designed to do two things: first, summarize the budget bill as passed; and, second, reflect the legislative changes made to the budget as submitted by the governor. Common Cause, 186 W. Va. at 582-83, 413 S.E.2d at 403-04 (Miller, C.J., dissenting). Both of these purposes clearly fall within the scope of authority granted to the Legislature to enact laws to carry out its constitutionally-prescribed budgetary functions. W. Va. Const. art. VI, § 51, subsec. D, para. 12 (The legislature may, from time to time, enact such laws, not inconsistent with this section [concerning the budget and supplementary appropriation bills], as may be necessary and proper to carry out its provisions.). Therefore, it would appear that W. Va. Code § 4-1-18 is constitutional on its face.
First, despite the respondents' protestations to the contrary, it seems that the
unauthorized allocations contained in the Budget Digest, although not formally
denominated as appropriations, nevertheless have the force and effect thereof without
the benefit of the constitutional protections normally attending such disbursements. See
generally W. Va. Const. art. VI, § 51. When viewing legislative actions, the substance
of the act complained of, instead of its simple form, directs the ensuing analysis. See,
e.g., Common Cause, 186 W. Va. at 540, 413 S.E.2d at 361 (commenting that, [i]n
deciding this case, it must be reality, not theory, that is the interpretive principle);
Chapman, 121 W. Va. at 350, 3 S.E.2d at 517 (Hatcher, J., dissenting) (The courts are
not bound by mere forms, nor are they to be misled by mere pretenses. They are at
liberty---indeed, are under a solemn duty---to look at the substance of things, whenever
they enter upon the inquiry whether the legislature has transcended the limits of its
authority. (internal quotations and citations omitted)). Appropriations generally are
considered to be directives to spending units as to how certain monies have been allocated
for use during the ensuing fiscal year. See McGraw v. Hansbarger, 171 W. Va. 758, 768,
301 S.E.2d 848, 858 (1983) (The budgetary appropriation process provides the means by
which . . . dedicated revenue . . . may be withdrawn from . . . the treasury and applied
to the purpose for which it was intended.).See footnote 9
Under the circumstances presented in this
proceeding, I am firmly convinced that the expenditures at issue herein have the full force
and effect of appropriations. The unauthorized allocations contained in the Budget Digest
effectively direct various entities as to how the Legislature contemplates their spending of
allotted monies and actually serve as the authorizations needed to withdraw these funds
from the State's treasury.
Additionally, the appropriations presently contained in the Budget Digest
have not satisfied the constitutional safeguards for the proposal, passage, and presentment
of such disbursements. See generally State ex rel. Brotherton v. Blankenship, 157 W. Va.
100, 112, 207 S.E.2d 421, 429 (1973) (The journey taken by a Budget Bill, from its
formulation to its enactment into law, well demonstrates the great detail in which it is
considered. It is thoroughly studied and considered four times---twice by the Governor
and twice by the Legislature (if it acts upon the Governor's veto).). Section 51 of Article
VI of the West Virginia Constitution provides specific guidelines for the proper exercise
of the Legislature's appropriations authority. First, the proposed appropriation must be
approved by a majority of the members elected to each house of the legislature. W. Va.
Const. art. VI, § 51, subsec. D, para. 11. If the appropriations contained in the Budget
Digest are both proposed and approved by the conferees committee before their inclusion
in the final Digest, the majority of legislators have not been afforded their opportunity to
approve the proposed appropriations as required by the West Virginia Constitution.
Moreover, following passage by the Legislature, the appropriations must then be presented
to the Governor for approval or disapproval. Id. See also W. Va. Const. art. VII, § 15
(reinforcing requirement that [a] bill passed by the legislature making appropriations of
money must be submitted to the governor for his approval or disapproval). Again,
though, if the present procedure is followed, the Governor is deprived of the right to
review the proffered appropriations. In short, the incorporation of unapproved
appropriations into the Budget Digest completely ignores these procedural safeguards;
disregards the constitutional procedures for the enactment of an appropriations bill; and
abrogates the plainly stated requirement that the Digest serve as a synopsis of the Budget
Bill finally enacted by the Legislature. See W. Va. Code § 4-1-18.
Finally, as I noted above, the Legislature has the sole authority to appropriate
funds. See, e.g., Miller, 153 W. Va. at 420, 168 S.E.2d at 824. Because such a function
has been denominated a purely legislative function, the Legislature is required to exercise
this authority itself, and it may not delegate its appropriations authority to any other entity.
In other words, our bicameral system requires the entire Legislature to participate in the
approval of proposed appropriations.See footnote 10
Just as the Legislature could not delegate its
appropriations authority for performance by any other entity, it similarly cannot delegate
this power to a subcommittee of itself, or to one of its individual members, because such
a committee is not comprised of the entirety of both of the legislative chambers.
Unilateral action by any single participant in the law-making process is precisely what the
Bicameralism and Presentment Clauses were designed to prevent. City of New York v.
Clinton, 985 F. Supp. 168, 179 (D.D.C.) (mem.), aff'd, 524 U.S. 417, 118 S. Ct. 2091,
141 L. Ed. 2d 393 (1998). Thus, the Legislature's authority to make appropriations is a
purely legislative duty which is not delegable. Furthermore, because the Legislature
cannot delegate its appropriations authority, the Legislature's conferees committee on the
budget should not be permitted to make appropriations through the Budget Digest,
prepared pursuant to W. Va. Code § 4-1-18.
In spite of the Legislature's blatant variance from the governing constitutional
and statutory law, it has nonetheless managed to pull the wool over the eyes of the majority
and successfully left my colleagues with the impression that nothing is amiss in the
wonderful world of the Budget Digest. Not only does the Court's adoption of Syllabus
point 2 completely ignore the present Budget Digest preparation process, including the
addition of unapproved allocations of State funds, but its further acquiescence to Syllabus
point 6 perpetuates this myth, and indeed compounds this abomination.
If Syllabus point 2 existed in a vacuum, far removed from any potential for mischief, it would paint an accurate picture of the ideal application of W. Va. Code § 4-1- 18. However, the reality is that [t]he inclusion of an item in the budget digest in reference to a more generalized line item found in the budget bill does . . . operate to appropriate money from the state treasury[.] (Emphasis added). Simply stated, just because the Budget Digest allocations walk like appropriations and talk like appropriations does not mean that they are not, in fact, appropriations regardless of the nomenclature used to describe them. Additionally, despite the majority's holding to the contrary, I firmly believe that [a]ll funds that are described in the budget digest [do not] reference a specific line item in the budget bill. (Emphasis added). If there were such a neat matching of these various monetary figures and budgetary documents, the present controversy would not exist and certainly would not have been presented to us not once, but twice, for final resolution. See generally Common Cause, 186 W. Va. 537, 413 S.E.2d 358.
Moreover, Syllabus point 6 further confuses the applicable law by holding that
[a] fair reading of West Virginia Code § 4-1-18 (1969) (Repl. Vol. 1999), contemplates and requires that the material contained in the budget digest under the heading Legislative Intent must have been the subject of discussion, debate, and decision prior to final legislative enactment of the budget bill, either within the legislative committees or subcommittees of the respective houses to which the budget bill, or parts of it, have been committed, formally or informally, or within the conferees committee.
(Emphasis added). Rather than requiring the informative legislative intent to have been generated by way of approval by the Legislature during its deliberation of budgetary matters, the majority states simply that the matter need only have been decided by some committee thereof. This procedure is entirely inconsistent with the second Syllabus point of the Court's decision. In short, Syllabus point 6 allows the Legislature to continue its illegal delegation of its nondelegable budgetary powers to a subpart of itself. Additionally, Syllabus point 6 directly contradicts the staunch holding of Syllabus point 2 by requiring not the approval of a budgetary line item, as contemplated by Syllabus point 2, but merely the decision thereof, which, in the absence of more specific language, could amount to a total rejection of the proposed expenditure. I cannot countenance the further conflagration of the law of this State in this regard.
[t]he legislative powers of the state are ordinarily vested, under constitutional provisions, in a legislature composed of a senate and house of representatives or bodies equivalent thereto, although otherwise designated, elected by the people, the bodies being integral parts which, combined, are the legislative branch or agency of the state, and it has been said that neither is an entity of government without the other. The legislature must act as a body, and, under the bicameral system, it is only where both bodies are lawfully assembled that they constitute the legislature.
appropriated, or provided.).