Albright, Justice, concurring:
I concur fully in the excellent unanimous opinion of this Court authored by Justice Starcher. The opinion, in my judgment, is soundly grounded in constitutional history and precedent. It represents a superb effort to reach a balanced judgment on difficult issues that profoundly affect the relationship among all three branches of our state government generally, and the somewhat more obscure issues posed by the decision of the framers of our state constitution to apportion the executive power of the government among several constitutional officers.
While I do not anticipate that the judgment of this
Court in this case will meet with universal approval, I earnestly hope that
it merits and is accorded universal respect. This case came to us with the makings of a constitutional crisis. The opinion
we have rendered represents, among other things, a constitutional framework
upon which the Legislature and the multi-faceted Executive can, with earnest
efforts and appropriate levels of comity, build a mutually satisfactory and
mutually respectful means of dealing with the problems presented, to a greater
or lesser extent, in the pleadings, briefs and arguments. Our decision also
represents, as the Court's opinion notes, a profound effort to fashion the
least intrusive remedy, a result of the perceived intention of this Court
to accord proper respect to both of the other branches of our state government.
I write separately primarily to underline the invitation
to the parties, issued clearly by the Court's opinion, to bring about a reasoned
resolution of the matters raised in the case which appear, at least facially,
to be of less than constitutional magnitude. One provision of our state's
law, which was vividly brought to our attention by this case, is the language
found in West Virginia Code § 5-3-1 (1994), which reads as follows:
[I]t is unlawful from and after the time this section becomes effective for any of the public officers, commissions, or other persons above mentioned to expend any public funds of the state of West Virginia for the purpose of paying any person, firm or corporation for the performance of any legal services.
That statutory provision was adopted in the heart of the Great Depression. It expresses a policy of the Legislature which, as the current case demonstrates, has been varied by some subsequent enactments of law and, apparently, by the simple exercise of legislative or executive fiat. Nevertheless, that provision enunciates a public policy which is protective of the fiscal affairs of this state and expressive of a proper concern for the unnecessary expenditure of public funds for legal services_services which may in some instances be more properly and more efficiently provided by the office of the attorney general.
The reality is that the opinion rendered by the
Court in this case is not about the particular persons who may, for the moment,
occupy specific offices or have responsibility for the operation of various
state entities. The issues involved in such a review of this long- standing
public policy affect the future of the state and its government, regardless
of who may now or hereafter hold public office or control various entities
of state government.
In my view, such issues are subject to being properly
and more appropriately resolved by the legislative and executive branches
working together, all parties being sensitive to each others' constitutional
prerogatives and statutory obligations. The effort by this Court to encourage
all concerned parties to undertake a review of this public policy in light
of the subsequent growth and modern complexity of state government deserves
the prompt and thorough attention of all affected parties_hopefully in a spirit
of cooperation and mutual respect.
The oft-heard call for judicial restraint has clearly been heeded here. Indeed, the Court's opinion is both a call for the parties to amicably resolve these issues outside the judicial system and a declaration of confidence that our counterparts in the legislative and executive branches will do so_for the long-term good of the state.