JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
CHIEF JUSTICE ALBRIGHT concurs and reserves the right to file a concurring
JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
1. 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. Syl. pt. 1, State ex rel. Appalachian Power Company v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).
2. A constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case.
3. The provisions contained in W. Va. Code § 55-7B-6d (2001) (Supp. 2004) were enacted in violation of the Separation of Powers Clause, Article V, § 1 of the West Virginia Constitution, insofar as the statute addresses procedural litigation matters that are regulated exclusively by this Court pursuant to the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution. Consequently, W. Va. Code § 55-7B-6d, in its entirety, is unconstitutional and unenforceable.
4. A non-severability provision contained in a legislative enactment is construed as merely a presumption that the Legislature intended the entire enactment to be invalid if one of the statutes in the legislation is found unconstitutional. When a non- severability provision is appended to a legislative enactment and this Court invalidates a statute contained in the enactment, we will apply severability principles of statutory construction to determine whether the non-severability provision will be given full force and effect.
Rita Mae Louk, appellant/plaintiff below (hereinafter referred to as Ms. Louk), appeals from an order of the Circuit Court of Randolph County denying her motion for a new trial. A jury returned a non-unanimous verdict against Ms. Louk in her medical malpractice action against Dr. Serge Cormier, appellee/defendant below (hereinafter referred to as Dr. Cormier). Here, Ms. Louk contends that the circuit court erred by ruling that the non- unanimous verdict provision of W. Va. Code § 55-7B-6d (2001) (Supp. 2004) was constitutional. (See footnote 1) After reviewing the briefs, listening to the arguments of the parties and considering the relevant authority, we reverse.
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.
Accord Syl. pt. 4, State ex rel. Cities of Charleston, Huntington & its Counties of Ohio & Kanawha v. West Virginia Econ. Dev. Auth., 214 W. Va. 277, 588 S.E.2d 655 (2003); Syl. pt. 1, West Virginia Trust Fund, Inc. v. Bailey, 199 W. Va. 463, 485 S.E.2d 407 (1997); Syl. pt. 1, State ex rel. Blankenship v. Richardson, 196 W. Va. 726, 474 S.E.2d 906 (1996).
With these standards in mind, we turn to the issues presented by this appeal.
[A]lthough the rule requiring
all appellate issues be [properly] raised first in the circuit court is important,
it is not immutable: Our cases have made clear that the failure to [properly]
raise issues below is not a jurisdictional prerequisite to an appeal but, rather,
is a gatekeeper provision rooted in the concept of judicial economy, fairness,
expediency, respect, and practical wisdom. Requiring issues to be [properly]
raised at the trial level is a juridical tool, embodying appellate respect for
the circuit court's advantage and capability to adjudicate the rights of our
This case, however, is not one in which, by neglecting to raise an issue in a timely manner, a litigant has deprived this Court of useful factfinding. The issue raised here, but omitted below, is purely legal in nature and lends itself to satisfactory resolution on the existing record without further development of the facts. . . . More importantly, the defendant's belated proffer raises an issue of constitutional magnitude, a factor that favors review notwithstanding a procedural default. . . . I believe this sensitivity is appropriately expressed by a frank recognition that, when public, as well as institutional, interests are at stake, the case for the flexible exercise of this Court's discretion is strengthened and waiver rules ought not to be applied inflexibly.196 W. Va. 500, 505-06, 473 S.E.2d 921, 926-27 (1996) (Cleckley, J., concurring). (See footnote 5) See also State v. Aleman, 109 P.3d 571, 579 (Ariz. Ct. App. 2005) ([W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion.); In re Foster, 107 P.3d 1249, 1255 (Kan. Ct. App. 2005) ([A]n appellate court may consider an issue for the first time on appeal in exceptional circumstances in order to serve the interests of justice or to prevent a denial of fundamental rights.).
The case of Whitlow v. Board of Education of Kanawha County, 190 W. Va. 223, 438 S.E.2d 15 (1993), illustrates the narrow context in which this Court may address an issue that was not properly preserved below. In Whitlow, the plaintiff was injured in 1987 when the bleachers at her junior high school collapsed. At the time of the accident, she was fifteen years old. The plaintiff filed a law suit in 1991. The trial court dismissed the action on the grounds that the statute of limitations for the West Virginia Governmental Tort Claims and Insurance Act, W. Va. Code § 29-12A-6 (1986), had run. The plaintiff appealed the dismissal arguing that W. Va. Code § 29-12A-6 violated the Equal Protection Clause of the state constitution. The defendant asked this Court not to address the constitutional issue because it was never raised at the trial court level. This Court acknowledged the general rule that when nonjurisdictional questions have not been decided at the trial court level and are then first raised before this Court, they will not be considered on appeal. Whitlow, 190 W. Va. at 226, 438 S.E.2d at 18 (citations omitted). Nevertheless, we declined to apply the general waiver rule for the following reasons:
this case, we are confronted with very limited and essentially undisputed facts.
The constitutional issue raised for the first time on appeal is the controlling
issue in the resolution of the case. If the statute is unconstitutional, the
case should not be dismissed. Furthermore, the issue is one of substantial public
interest that may recur in the future. . . .
. . . Here, the defendant has thoroughly briefed the constitutional issue in response to the plaintiff's claim. We view the matter as sufficiently developed to decide the issue.
Whitlow, 190 W. Va. at 226-27, 438 S.E.2d at 18-19. (See
footnote 6) See also Los Angeles Unified School
Dist. v. State of California, 280 Cal. Rptr. 237, 239, 229 Cal. App.
3d 552, 555 (1991) ([A] claim regarding . . . [a] constitutional
provision can be belatedly raised [on appeal] because it raises a purely legal
question involving no disputed facts.). Accord Barrio v. San
Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280, 283 (Ariz. 1984)
(same); State v. Samuels, 871 A.2d 1005, 1016 (Conn. 2005) (same); Wright
v. State, 2005 WL 1026669, at *1 (Fla. Dist. Ct. App. 2005) (same); People
v. Pickens, 822 N.E.2d 58, 66 (Ill. App. Ct. 2004) (same); Unwired Telcom
Corp. v. Parish of Calcasieu, 2005 WL 106468, at *6 (La. 2005) (same); State
v. Ronning, 2005 WL 1088435, at *5 (Minn. Ct. App. 2005) (same); Anderson
v.Assimos, 572 S.E.2d 101, 102 (N.C. 2002) (same); Roseborough v. Scott,
875 P.2d 1160, 1165 (Okla. Ct. App. 1994) (same); Bassi v. Rhode Island
Insurers' Insolvency Fund, 661 A.2d 77, 79 (R.I. 1995) (same); In re
D.L., 160 S.W.3d 155, 160 n.1 (Tex. App. 2005) (same); In re Disability
Proceeding Against Diamondstone, 105 P.3d 1, 8 (Wash. 2005) (same). (See
As a result of our thorough and very logical reasoning in Whitlow, we now hold that a constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case.
Applying the above principle of law to the facts of this case, we exercise our discretion to address the constitutional issue presented even though it was not properly preserved below. The issue of the constitutionality of W. Va. Code § 55-7B-6d does not involve any disputed facts. The matter is strictly a question of law. Dr. Cormier's brief states, without any argument, that the resolution of the constitutionality of West Virginia Code § 55- 7B-6d is clearly not a 'controlling issue.' We disagree. The verdict in this case was not unanimous. The verdict was upheld only because W. Va. Code § 55-7B-6d authorized such an outcome. In other words, but for the application of W. Va. Code § 55-7B-6d, the verdict returned would be invalid.
Ms. Louk contends that enactment of the non-unanimous verdict provision of W. Va. Code § 55-7B-6d violates the Separation of Powers Clause contained in Article V, § 1 of the West Virginia Constitution because the Rule-Making Clause of Article VIII, § 3 grants this Court the authority to promulgate rules concerning non-unanimous jury verdicts.
The Separation of Powers Clause of Article V, § 1 provides, in relevant part, that [t]he legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others[.] W. Va. Const. art. V, § 1. It has been observed that
Separation of Powers Clause is not self-executing. Standing alone the doctrine
has no force or effect. The Separation of Powers Clause is given life by each
branch of government working exclusively within its constitutional domain and
not encroaching upon the legitimate powers of any other branch of government.
This is the essence and longevity of the doctrine.
State ex rel. Affiliated Constr. Trades Found. v. Vieweg, 205 W. Va. 687, 702, 520 S.E.2d 854, 869 (1999) (Davis, J., concurring). It also has been noted that
system of checks and balances provided for in American state and
federal constitutions and secured to each branch of government by 'Separation
of Powers' clauses
theoretically and practically compels courts, when called upon, to thwart any
unlawful actions of one branch of government which impair the constitutional
responsibilities and functions of a coequal branch.
State ex rel. Farley v. Spaulding, 203 W. Va. 275, 286-87, 507 S.E.2d 376, 387-88 (1998) (Davis, C.J., dissenting) (quoting State ex rel. Brotherton v. Blankenship, 158 W. Va. 390, 402, 214 S.E.2d 467, 477 (1975)).
The Rule-Making Clause of Article VIII, § 3 provides, in relevant part, that the Supreme [C]ourt shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process practice and procedure, which shall have the force and effect of law. W. Va. Const. art. VIII, § 3. See also Syl. pt. 1, Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988) (Under article eight, section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law.). As a result of the authority granted to this Court by the Rule-Making Clause, 'a statute governing procedural matters in [civil or] criminal cases which conflicts with a rule promulgated by the Supreme Court would be a legislative invasion of the court's rule-making powers.' State v. Arbaugh, 215 W. Va. 132, 138, 595 S.E.2d 289, 295 (2004) (Davis, J., dissenting) (quoting People v. Hollis, 670 P.2d 441, 442 (Colo. Ct. App. 1983)). See also Syl. pt. 5, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999) (The West Virginia Rules of Criminal Procedure are the paramount authority controlling criminal proceedings before the circuit courts of this jurisdiction; any statutory or common-law procedural rule that conflicts with these Rules is presumptively without force or effect.); Syl. pt. 7, in part, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994) (The West Virginia Rules of Evidence remain the paramount authority in determining the admissibility of evidence in circuit courts.). A review of some of the prior decisions of this Court indicate that we have historically invalidated statutes that conflicted with rules promulgated by this Court.
The case of Laxton v. National Grange Mutual Insurance Company, 150 W. Va. 598, 148 S.E.2d 725 (1966), overruled on other grounds by Smith v. Municipal Mut. Ins. Co., 169 W. Va. 296, 289 S.E.2d 669 (1982), is one of the earliest decisions to address the issue of a statute that was in conflict with a rule promulgated by this Court. In Laxton, the plaintiff's automobile was damaged in a wreck. The plaintiff filed an action against his insurer to recover the cost to repair the vehicle. The insurer defended the action on the theory that the policy had been cancelled before the wreck occurred. The jury returned a verdict in favor of the plaintiff. The insurer appealed, and the plaintiff filed a cross-assignment of error. The relevant issue in the case involved the plaintiff's cross-assignment of error. (See footnote 8)
On appeal, the plaintiff argued that the insurer had waived its defense of alleged cancellation by failing to plead the defense in conformity with W. Va. Code § 56-4-21. That statute required that, in any action on an insurance policy, certain defenses must be asserted affirmatively by a statement in writing and under oath. The Court in Laxton acknowledged that prior to the adoption of the West Virginia Rules of Civil Procedure, the requirements of W. Va. Code § 56-4-21 had been mandatory. However, the opinion went on to invalidate the statute as a result of the Rules of Civil Procedure:
believe that the procedural provisions of this statute have been superseded by
the West Virginia Rules of Civil Procedure which became effective July 1, 1960.
The . . . cases cited in behalf of the plaintiff were decided before
that date. R.C.P. 1 is, in part, as follows: These rules govern the procedure
in all trial courts of record in all actions, suits, or other judicial proceedings
of a civil nature whether cognizable as cases at law or in equity. . . . R.C.P.
8 (c)) deals with affirmative defenses, but does not provide that such defenses
must be raised by a pleading under oath. R.C.P. 11 provides, that except where
otherwise provided by the Rules, pleadings need not be verified or accompanied
by affidavit. The Rules embrace actions such as that involved in this case. The
answer to the complaint affirmatively pleaded the alleged cancellation. The answer
was not required by the Rules to be under oath. The cross-assignment of error,
therefore, is not well taken.
Laxton, 150 W. Va. at 601, 148 S.E.2d at 727.
The leading case addressing the issue of a legislative statute that conflicted with a rule promulgated by this Court is Mayhorn v. Logan Medical Foundation, 193 W. Va. 42, 454 S.E.2d 87 (1994). Mayhorn was a medical malpractice action against an emergency room physician and hospital. During the trial, the circuit court granted the defendants' motion for a directed verdict asserting that the plaintiff's expert relied on a fact not in evidence when rendering his opinion. The plaintiff filed an appeal. The defendants filed a cross-assignment of error. The relevant issue in the case involved the defendants' cross-assignment of error. (See footnote 9)
In the defendants' cross-assignment of error, they alleged that the plaintiff's expert should not have been allowed to testify because he did not qualify as an expert under W. Va. Code § 55-7B-7 (1986) (Repl. Vol. 2000). This statute provided, in relevant part, that expert testimony may only be admitted in evidence if the foundation, therefor, is first laid establishing that: . . . (e) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider. (See footnote 10) W. Va. Code § 55-7B-7 (emphasis added). The plaintiff argued that the statute was invalid because it was in conflict with Rule 702 of the West Virginia Rules of Evidence. Rule 702 imposed the following requirements for a person to qualify as an expert:
scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.
The opinion in Mayhorn acknowledged that the Court had previously examined the validity of W. Va. Code § 55-7B-7 in Gilman v. Choi, 185 W. Va. 177, 406 S.E.2d 200 (1990). However, the issue in Gilman had been whether or not the Legislature could enact a statute which addressed the competency of an expert. Gilman found that the Legislature could craft competency requirements for experts because Rule 601 of the West Virginia Rules of Evidence specifically stated that [e]very person is competent to be a witness except as otherwise provided for by statute or these rules. (Emphasis added). In dicta, Gilman suggested that Rule 601 could be used by the Legislature to impose qualifications on experts. The Mayhorn opinion rejected Gilman's broad application of Rule 601 as follows:
is a difference between the competency of a witness, which is governed by W. Va. R. Evid.
601, and the qualifications of an expert, which is governed by W. Va. R.
Evid. 702. Furthermore, W. Va. R. Evid. 601 should not be used
to allow the legislature to outline when an expert is qualified. Instead, the
applicable provision is W. Va. R. Evid. 702. . . .
W. Va. R. Evid. 702 does not provide that the legislature may outline when a witness should be found to be qualified as an expert. This Court has complete authority to determine an expert's qualifications pursuant to its constitutional rule-making authority. . . .
Accordingly, we hold that Rule 702 of the West Virginia Rules of Evidence is the paramount authority for determining whether or not an expert is qualified to give an opinion. Therefore, to the extent that Gilman v. Choi, 185 W. Va. 177, 406 S.E.2d 200 (1990) indicates that the legislature may by statute determine when an expert is qualified to state an opinion, it is overruled.Mayhorn, 193 W. Va. at 49, 454 S.E.2d at 94 (internal citations omitted). (See footnote 11) See also West Virginia Div. of Highways v. Butler, 205 W. Va. 146, 516 S.E.2d 769 (1999) (holding that the requirement of W. Va. Code § 37-14-3(a) that an expert real estate appraiser had to be licensed and certified was invalid and that Rule 702 controlled the qualifications of such an expert); Teter v. Old Colony Co., 190 W. Va. 711, 441 S.E.2d 728 (1994) (same).
Recently, in Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W. Va. 236, 565 S.E.2d 358 (2002), we were again asked to determine the validity of a legislative statute that conflicted with a rule of this Court. The decision in Games-Neely involved the State's seizure of the home of an elderly woman. The home had been used by others to engage in drug trafficking. The State filed a petition to seize the home under the West Virginia Contraband Forfeiture Act (the Forfeiture Act), W. Va. Code §§ 60A-7-701 et seq. The home owner failed to file an answer within the timeframe set by the Forfeiture Act. Consequently, a default judgment was rendered. The home owner subsequently filed a motion to set aside the default judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure. The trial court denied relief. In the appeal, one of the issues the Court addressed was whether or not a provision in the Forfeiture Act precluded the circuit court from entertaining a Rule 60(b) motion. The provision in question, W. Va. Code § 60A-7-705(d) (1988) (Repl. Vol. 2000), provided as follows:
no answer or claim is filed within thirty days of the date of service of the
petition pursuant to subsection (b) of this section, or within thirty days of
the first publication pursuant to subsection (b) of this section, the court shall
enter an order forfeiting the seized property to the state.
The Court in Games-Neely properly concluded that W. Va. Code § 60A-7-705(d) could not prevent a trial court from hearing a Rule 60(b) motion:
Despite the mandatory language
of Section 705(d), the Appellant maintains that the circuit court still has discretion
to set aside the default judgment pursuant to Rule 60(b) of the West Virginia
Rules of Civil Procedure. . . .
. . . .
. . . [T]here is no question that rules promulgated under authority of the state constitution . . . prevail whenever there is a conflict, real or perceived, between such rules and legislative provisions involving court procedures. . . .
. . . .
Upon consideration of these established principles concerning conflicts between judicially-enacted rules of procedure and legislative acts that contain procedural directives, we conclude that Rule 60(b) has the force and effect of law; applies to forfeiture proceedings under the Forfeiture Act; and supersedes West Virginia Code § 60A-7-705(d) to the extent that Section 705(d) can be read to deprive a circuit court of its grant of discretion to review a default judgment order. Accordingly, we hold that a circuit court has discretion under Rule 60(b) of the West Virginia Rules of Civil Procedure to set aside a judgment by default entered pursuant to West Virginia Code § 60A-7-705(d) of the Forfeiture Act for failure to file an answer or claim within thirty days of the date of service of a petition of forfeiture or within thirty days [sic] its first publication.
Games-Neely, 211 W. Va. at 244-45, 565 S.E.2d at 366-67 (internal
citations omitted). (See
The decisions in Laxton, Mayhorn and Games-Neely are illustrative of this Court's longstanding position that the legislative branch of government cannot abridge the rule-making power of this Court. In re Mann, 151 W. Va. 644, 651, 154 S.E.2d 860, 864 (1967), overruled on other grounds by Committee on Legal Ethics of West Virginia State Bar v. Boettner, 183 W. Va. 136, 394 S.E.2d 735 (1990). See also Syl. pt. 2, Williams v. Cummings, 191 W. Va. 370, 445 S.E.2d 757 (1994) (West Virginia Code § 56-1-1(a)(7) provides that venue may be obtained in an adjoining county '[i]f a judge of a circuit be interested in a case which, but for such interest, would be proper for the jurisdiction of his court. . . .' This statute refers to a situation under which a judge might be disqualified, and therefore it is in conflict with and superseded by Trial Court Rule XVII, which addresses the disqualification and temporary assignment of judges.); State v. Davis, 178 W. Va. 87, 90, 357 S.E.2d 769, 772 (1987) (holding that W. Va. R. Crim. P. 7(c)(1) supersedes the provisions of W. Va. Code § 62-9-1 (1931) to the extent that the statute requires the indorsement of the grand jury foreman and attestation of the prosecutor on the reverse side of the indictment), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994); Hechler v. Casey, 175 W. Va. 434, 449 n.14, 333 S.E.2d 799, 815 n.14 (1985) (W. Va. Code, 53-1-8 , applicable to both mandamus and prohibition proceedings, authorizes an award of either of these types of writs with or without costs as the court or judge may determine. W. Va .R. App. P. 23(b), however, . . . precludes an award of costs to the State in this Court. This Court's procedural rule, to the extent it conflicts with the procedural statute, supersedes the statute.); Syl., State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 306 S.E.2d 233 (1983) (The constitutional separation of powers, W. Va. Const. art. V, § 1, prohibits the legislature from regulating admission to practice and discipline of lawyers in contravention of rules of this Court.); Syl. pt. 2, Stern Bros., Inc. v. McClure, 160 W. Va. 567, 236 S.E.2d 222 (1977) (The administrative rule promulgated by the Supreme Court of Appeals of West Virginia, setting out a procedure for the temporary assignment of a circuit judge in the event of a disqualification of a particular circuit judge, operates to supersede the existing statutory provisions found in W. Va. Code, 51-2-9 and -10 and W. Va. Code, 56-9-2, insofar as such provisions relate to the selection of special judges and to the assignment of a case to another circuit judge when a particular circuit judge is disqualified.); Montgomery v. Montgomery, 147 W. Va. 449, 128 S.E.2d 480 (1962) (holding that the bills of exception requirement for an appeal under W. Va. Code § 56-6-35 was abolished by Rule 80).
Ms. Louk next contends that the non-unanimous verdict provision contained in W. Va. Code § 55-7B-6d is a procedural rule that is in conflict with Rule 48 of the West Virginia Rules of Civil Procedure, and is therefore invalid. (See footnote 13)
We begin our analysis by pointing out that in 2001 the Legislature amended the Medical Professional Liability Act (MPLA), W. Va. Code §§ 55-7B-1, et seq., by adding W. Va. Code § 55-7B-6d. The purpose of the MPLA, as set out in W. Va. Code § 55-7B-1 (1986) (Repl. Vol. 2000), provides in part as follows:
Legislature hereby finds and declares that the citizens of this state are entitled
to the best medical care and facilities available and that health care providers
offer an essential and basic service which requires that the public policy of
this state encourage and facilitate the provision of such service to our citizens:
That as in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest;
That our system of litigation is an essential component of this state's interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence;
. . . .
Therefore, the purpose of this enactment is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth above. In so doing, the Legislature has determined that reforms in the common law and statutory rights of our citizens to compensation for injury and death . . . must be enacted together as necessary and mutual ingredients of the appropriate legislative response. (See footnote 14)
This Court is quite sensitive to the need for reform in medical malpractice litigation. Furthermore, we wholeheartedly applaud the efforts of the Legislature in attempting to find a balance between the rights of injured persons and the desire to maintain a stable health care system in our State. However, [i]t is the constitutional obligation of the judiciary to protect its own proper constitutional authority by upholding the independence of the judiciary. Syl. pt. 4, State ex rel. Lambert v. Stephens, 200 W. Va. 802, 490 S.E.2d 891 (1997). The efficient administration of the judicial system is essential to our duty to implement justice in West Virginia; and, therefore, we must be wary of any legislation that undercuts the power of the judiciary to meet its constitutional obligations. State ex rel. Frazier v. Meadows, 193 W. Va. 20, 25, 454 S.E.2d 65, 70 (1994). [T]he role of this Court is vital to the preservation of the constitutional separation of powers of government where that separation, delicate under normal conditions, is jeopardized by the usurpatory actions of the executive or legislative branches of government. State ex rel. Steele v. Kopp, 172 W. Va. 329, 337, 305 S.E.2d 285, 293 (1983). Without question, this Court has settled on a policy of strong adherence to the several constitutional provisions relating to the separation of powers, as conferred on the three departments of the State government, and particularly as to the jurisdiction of courts, and the powers they may assume or decline to exercise. Sims v. Fisher, 125 W. Va. 512, 524, 25 S.E.2d 216, 222 (1943). Therefore, it is our constitutional duty to make certain that W. Va. Code § 55-7B-6d has been enacted in a manner that does not encroach upon the constitutional powers of this Court. See Syl. pt. 3, State ex rel. Weirton Med. Ctr. v. Mazzone, 214 W. Va. 146, 587 S.E.2d 122 (2002) (The provisions of the Medical Professional Liability Act, W. Va. Code §§ 55-7B-1 to -11 (1986), govern actions falling within its parameters, subject to this Court's power to promulgate rules for all cases and proceedings, including rules of
practice and procedure, pursuant to Article VIII, Section 3 of the West Virginia Constitution.).
The relevant language in W. Va. Code § 55-7B-6d states that, in medical malpractice litigation,
The judge shall instruct the
jury that they should endeavor to reach a unanimous verdict but, if they cannot
reach a unanimous verdict, they may return a majority verdict of nine of the
twelve members of the jury. The judge shall accept and record any verdict
reached by nine members of the jury. The verdict shall bear the signatures of
all jurors who have concurred in the verdict. The verdict shall be announced
in open court, either by the jury foreperson or by any of the jurors concurring
in the verdict. After a verdict has been returned and before the jury has been
discharged, the jury shall be polled at the request of any party or upon the
court's own motion. The poll shall be conducted by the clerk of the court asking
each juror individually whether the verdict announced is such juror's verdict.
If, upon the poll, a majority of nine members of the jury has not concurred in
the verdict, the jury may be directed to retire for further deliberations or
the jury may be discharged.
(Emphasis added). (See footnote 15) W. Va. Code § 55-7B-6d clearly states that trial courts shall instruct juries that they may return a non-unanimous verdict. The use of the word shall by the statute means that trial courts have no discretion in the matter. In fact, they must give a non- unanimous verdict instruction to the jury. See State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999) (Generally, 'shall' commands a mandatory connotation and denotes that the described behavior is directory, rather than discretionary.); Syl. pt. 1, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) (It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.). Ms. Louk contends that the mandatory non-unanimous verdict instruction in W. Va. Code § 55-7B-6d is in conflict with Rule 48. We agree.
Pursuant to the Rule-Making Clause of our constitution, this Court has addressed the issue of a non-unanimous jury verdict in Rule 48. Rule 48 clearly states that [t]he parties may stipulate . . . that a verdict . . . of a stated majority of the jurors shall be taken as the verdict . . . of the jury. There is simply no ambiguity in Rule 48. Rule 48 provides only one method by which a jury may return a non-unanimous verdict, i.e., through a stipulation by the parties. See Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 48, at 844 (2002) (The parties may . . . stipulate that a verdict . . . of a . . . majority of the jurors will be taken as the verdict . . . of the jury.). The non-unanimous verdict provision in W. Va. Code § 55-7B-6d has stripped litigants of a right granted to them by this Court under our constitutional authority. The Legislature cannot remove that which was not in its power to give. This Court has made clear that [t]he legislative, executive, and judicial powers . . . are each in its own sphere of duty, independent of and exclusive of the other; so that, whenever a subject is committed to the discretion of the [judicial], legislative or executive department, the lawful exercise of that discretion cannot be controlled by the [others]. Danielley v. City of Princeton, 113 W. Va. 252, 255, 167 S.E. 620, 622 (1933). Promulgation of rules governing litigation in the courts of this State rests exclusively with this Court.
Dr. Cormier contends that W. Va. Code § 55-7B-6d is not in conflict with Rule 48 because the rule does not explicitly require a unanimous verdict. This argument misses the critical point of the analysis. The issue under analysis is not whether Rule 48 implicitly or explicitly requires a unanimous verdict. Our analysis addresses the more narrow issue of whether this Court has, through Rule 48, determined how a non-unanimous verdict may be returned. We have. Rule 48 places the issue of accepting a non-unanimous verdict squarely within the discretion of the parties. In contrast, W. Va. Code § 55-7B-6d squarely imposes a non-discretionary duty upon the trial court to accept a non-unanimous verdict. Consequently, it takes no great intellectual strain to conclude that Rule 48 and W. Va. Code § 55-7B-6d are in conflict. We have previously indicated that a rule promulgated by this Court has the effect of a statute in matters of procedure and supersedes any procedural statute which conflicts with the rule. State ex rel. Wilson v. County Court of Barbour County, 145 W. Va. 435, 442, 114 S.E.2d 904, 909 (1960). In this regard, we have held that [l]egislative enactments which are not compatible with those prescribed by the judiciary or with its goals are unconstitutional violations of the separation of powers. State ex rel. Quelch v. Daugherty, 172 W. Va. 422, 424, 306 S.E.2d 233, 235 (1983).
Accordingly, we hold that the provisions
contained in W. Va. Code § 55-7B-6d (2001) (Supp. 2004) were enacted
in violation of the Separation of Powers Clause, Article V, § 1 of the West
Virginia Constitution, insofar as the statute addresses procedural litigation
matters that are regulated exclusively by this Court pursuant to the Rule-Making
Clause, Article VIII, § 3 of the West Virginia Constitution. Consequently,
W. Va. Code § 55-7B-6d, in its entirety, is unconstitutional and unenforceable. (See
If any provision of this article as enacted during the first extraordinary session
of the Legislature, 1986, in House Bill
149, or as enacted during the regular session of the Legislature, 1986, in
Senate Bill 714, or the application thereof to any person or circumstance is
held invalid, such invalidity shall not affect other provisions or applications
of this article, and to this end, the provisions of this article are declared
to be severable.
(b) If any provision of the amendments to section five of this article, any provision of new section six-d of this article or any provision of the amendments to section eleven, article six, chapter fifty-six of this code as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, or the application thereof to any person is held invalid, then, notwithstanding any other provision of law, every other provision of said House Bill 601 shall be deemed invalid and of no further force and effect.
(c) If any provision of the amendments to sections six or ten of this article or any provision of new sections six-a, six-b or six-c of this article as provided in House Bill 60l, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end, such provisions are deemed severable.
A fair reading of the Severability statute indicates that it is a hybrid, i.e., it contains both severability provisions and a non-severability provision. It is the non- severability provision, W. Va. Code § 55-7B-11(b), that is relevant to our decision in this case. Under the non-severability provision, the Legislature has determined that, if this Court invalidates a provision to the 2001 amendments to W. Va. Code § 55-7B-5, W. Va. Code § 56- 6-11, or the newly created W. Va. Code § 55-7B-6d, then all of said provisions are invalid. In other words, the non-severability provision has presumptively invalidated the remaining twelve juror provision in W. Va. Code § 55-7B-6d, and the 2001 amendments to W. Va. Code § 55-7B-5 and W. Va. Code § 56-6-11, as a result of our determination that the non-unanimous verdict provision in W. Va. Code § 55-7B-6d is unconstitutional. The issue of the deference to be accorded a non-severability provision appears to be one of first impression for this Court.
It has been observed that [a] non-severability clause is almost unheard of and constitutes a legislative finding that every section is so important to the single subject that no part of the act can be removed without destruction of the legislative purpose. Farrior v. Sodexho, U.S.A., 953 F. Supp. 1301, 1302 (N.D. Ala. 1997). (See footnote 19) Our research indicates that only a few courts have addressed the issue of non-severability provisions. A majority of those courts have enforced non-severability provisions without comment. See Texas Pharmacy Ass'n v. Prudential Ins. Co. of America, 105 F.3d 1035, 1039 (5th Cir. 1997) (finding portions of law unconstitutional and invalidating remainder because of non-severability statute); Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 988 (9th Cir. 1992) (same); Wisconsin Realtors Ass'n v. Ponto, 233 F. Supp. 2d 1078, 1093 (W.D. Wis. 2002) (same); Scinto v. Kollman, 667 F. Supp. 1106, 1109 (D. Md. 1987) (same); Schafer v. Vest, 680 P.2d 1169, 1170 (Alaska 1984) (same); City of Colorado Springs v. State, 626 P.2d 1122, 1129 (Colo. 1981) (same); Sarner v. Union Tp., Union County, 151 A.2d 208, 220 (N.J. Super. Ct. Law Div. 1959) (same); Texas Vending Comm'n v. Headquarters Corp., 505 S.W.2d 402, 404 (Tex. Civ. App. 1974) (same); State v. Mendoza, 748 P.2d 181, 186 (Utah 1987) (same). (See footnote 20)
A few courts, however, have commented on the degree of deference to be accorded to non-severability provisions. These courts have held that a non-severability clause cannot ultimately bind a court, it establishes [only] a presumption of non-severability. Biszko v. RIHT Fin. Corp., 758 F.2d 769, 773 (1st Cir. 1985). That is, [d]espite the unambiguous command of . . . [non]severability clauses, . . . they create only a rebuttable presumption that guides--but does not control--a reviewing court's severability determination. Shumsky, Severability, Inseverability, 41 Harv. J. on Legis. at 230. See also Stiens v. Fire & Police Pension Ass'n, 684 P.2d 180, 184 (Colo. 1984) (holding that the legislature intended the benefit provisions of a pension Act to be severable from the Act's unconstitutional funding provisions, even though the Act had a non-severability provision); Pennsylvania Fed'n of Teachers v. School Dist. of Philadelphia, 484 A.2d 751, 754 (Pa. 1984) (holding Act unconstitutional for persons who were members of retirement system at the time of the enactment, but finding Act constitutional as applied to those who became members of the retirement system subsequent to the effective date of the Act, even though the Act had a non- severability provision); Noah, The Executive Line Item Veto, 56 Wash. & Lee L. Rev. at 238 (observing that courts occasionally sever invalidated provisions even in the face of [non]severability clauses).
We have discerned from courts and commentators that statutory construction principles that apply to severability provisions are equally applicable to non-severability provisions. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-party Standing, 113 Harv. L. Rev. 1321, 1349 (2000) ([G]eneral separability principles apply in all contexts to determine whether particular statutes are nonseverable[.]); Israel E. Friedman, Inseverability Clauses in Statutes, 64 U. Chi. L. Rev. 903-04 (1997) (Despite the explicit statutory language in severability and [non-]severability clauses, courts all but ignore the clauses and apply their own tests and presumptions to determine severability. These tests generally begin with a presumption that all statutes are either severable or inseverable. . . .
Courts will also consider whether the statute can reasonably function as an autonomous whole without the invalid provision.). Consequently, we now hold that a non-severability provision contained in a legislative enactment is construed as merely a presumption that the Legislature intended the entire enactment to be invalid if one of the statutes in the legislation is found unconstitutional. When a non-severability provision is appended to a legislative enactment and this Court invalidates a statute contained in the enactment, we will apply severability principles of statutory construction to determine whether the non-severability provision will be given full force and effect.
1. Severability principles of statutory construction. Under this Court's severability principles of statutory construction we do not defer, as a matter of course, to severability provisions contained in statutes. Instead, we engage in an independent analysis to determine legislative intent and the effect of the severability section of the statute. In re Dostert, 174 W.Va. 258, 272, 324 S.E.2d 402, 416 (1984), overruled on other grounds by Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991). See also State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953) (invalidating entire statute even though the statute contained a severability provision); Lingamfelter v. Brown, 132 W.Va. 566, 52 S.E.2d 687 (1949) (same); Hodges v. Public Serv. Comm'n, 110 W. Va. 649, 159 S.E. 834 (1931) (same). The reason for this procedure is that a severability provision provides a rule of construction which may aid in determining legislative intent, 'but it is an aid merely; not an inexorable command.' Singer, Statutes § 44:8, at 585-86 (quoting Dorchy v. State of Kansas, 264 U.S. 286, 44 S. Ct. 323, 68 L. Ed. 686 (1924)). See also Hodges v. Public Serv. Comm'n, 110 W. Va. 649, 656, 159 S.E. 834, 837 (1931) ([A severability] declaration is not an inexorable command, but is merely an aid in determining the legislative intent. The fact that a workable act remains, after eliminating the invalid provisions, is not decisive of whether the provisions are separable. There are other considerations. (internal quotation marks and citation omitted).
This Court has adopted the following statutory construction principle that is applied in determining the issue of severability:
statute may contain constitutional and unconstitutional provisions which may
be perfectly distinct and separable so that some may stand and the others will
fall; and if, when the unconstitutional portion of the statute is rejected, the
remaining portion reflects the legislative will, is complete in itself, is capable
of being executed independently of the rejected portion, and in all other respects
is valid, such remaining portion will be upheld and sustained.
Syl. pt. 6, State v. Heston, 137 W. Va. 375, 71 S.E.2d 481 (1952). Accord Syl. pt. 3, Frantz v. Palmer, 211 W. Va. 188, 564 S.E.2d 398 (2001). See also State v. Flinn, 158 W. Va. 111, 130, 208 S.E.2d 538, 549 (1974) ([A] statute may be constitutional in one part and unconstitutional in another.); State ex rel. State Bldg. Comm'n v. Bailey, 151 W. Va. 79, 93, 150 S.E.2d 449, 457 (1966) (The principle is well settled by many decisions of this Court that a statute . . . may contain both constitutional and unconstitutional provisions which in substance are distinct and separable so that some may stand though others must fall.). The most critical aspect of severability analysis involves the degree of dependency of statutes. Thus, [w]here the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid. Syl. pt. 9, Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964).
The foregoing severability statutory construction principles will be applied to determine whether the remaining twelve juror provision in W.Va. Code § 55-7B-6d and the 2001 amendments to W. Va. Code § 56-6-11 and W. Va. Code § 55-7B-5 must be invalidated as inseverable from W. Va. Code § 55-7B-6d.
2. The twelve juror provision of W. Va. Code § 55-7B-6d. The remaining provision in W. Va. Code § 55-7B-6d directs that the jury in any trial of an action for medical professional liability shall consist of twelve members. As will be shown, this provision is invalid because it is in conflict with a specific rule promulgated by this Court and because it is not severable from the unconstitutional non-unanimous jury verdict provision.
The issue of the number of jurors in a civil action is addressed in Rule 47(b) of the West Virginia Rules of Civil Procedure. Rule 47(b) states, in relevant part, that [u]nless the court directs that a jury shall consist of a greater number, a jury shall consist of six persons. (See footnote 21) Under W. Va. Code § 55-7B-6d, it is mandatory that a trial court seat twelve jurors in a medical malpractice action. However, under Rule 47(b), a jury is limited to six members unless, in the exercise of the trial court's discretion, a greater number is imposed. (See footnote 22) Clearly, the twelve juror requirement of W. Va. Code § 55-7B-6d is in conflict with Rule 47(b) and is therefore unconstitutional and invalid for that reason alone.
Additionally, the twelve juror requirement is dependent upon and intertwined with the unconstitutional non-unanimous jury verdict provision of W. Va. Code § 55-7B-6d. In order for the non-unanimous jury verdict provision to take effect, twelve jurors must be chosen so that a minimum of nine jurors may render a verdict. Consequently, the twelve juror provision is invalid because it is not severable from the unconstitutional non-unanimous jury verdict provision of W. Va. Code § 55-7B-6d.
3. Six Member Jury Exemption in Amendment to W. Va. Code § 56-6-11.
The 2001 amendment to W. Va. Code § 56-6-11 added subsection (c), which provides:
provisions of this section providing for a six member jury trial do not apply
to any proceeding had pursuant to article seven-b, chapter fifty-five of this
code, the provisions of which apply to all cases involving a medical professional
Clearly, W. Va. Code § 56-6-11(c)'s exemption of a six person jury in medical malpractice cases is dependent upon the twelve person provision in W. Va. Code § 55-7B-6d, which we have invalidated. Consequently, we find the 2001 amendment to W. Va. Code § 56-6-11(c) is inseverable from W. Va. Code § 55-7B-6d and is therefore invalid.
4. Proscription of Bad Faith Claims Against Medical Malpractice Insurers in Amendment to W. Va. Code § 55-7B-5. The 2001 amendment to W. Va. Code § 55-7B-5 added subsections (b) and (c), which provide:
Notwithstanding any other provision of law, absent privity of contract, no plaintiff
who files a medical professional liability action against a health care provider
may file an independent cause of action against any insurer of the health care
provider alleging the insurer has violated the provisions of subdivision (9),
section four, article eleven, chapter thirty-three of this code. Insofar as the
provisions of section three, article eleven, chapter thirty-three of this code
prohibit the conduct defined in subdivision (9), section four, article eleven,
chapter thirty-three of this code, no plaintiff who files a medical professional
liability action against a health care provider may file an independent cause
of action against any insurer of the health care provider alleging the insurer
has violated the provisions of said section three.
(c) No health care provider may file a cause of action against his or her insurer alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter
thirty-three of this code until the jury has rendered a verdict in the underlying medical professional liability action or the case has otherwise been dismissed, resolved or disposed of.
The issues addressed in W. Va. Code §§ 55-7B-5(b) and (c) pertain to the ability of a bad faith claim to be asserted against an insurer of a health care provider. Whether a litigant may or may not be able to file a bad faith claim against a health care insurer is not dependent in any way upon whether a verdict may be non-unanimous. That is, W. Va. Code §§ 55-7B-5(b) and (c) are independent of W. Va. Code § 55-7B-6d. See State v. Edwards, 95 W.Va. 599, 602, 122 S.E. 272, 273 (1924) (The rule seems to be that where a part of an act is unconstitutional, that fact does not authorize the courts to declare the other provisions of the act void, unless they are so connected in subject matter, depending on each other, or otherwise so connected in meaning, that it cannot be presumed that the legislature would have enacted the one without the other.).
Moreover, W. Va. Code §§ 55-7B-5(b) and (c) address matters pertaining to substantive law and do not encroach upon on our authority under the Rule-Making Clause. See Arbaugh, 215 W. Va. at 138, 595 S.E.2d at 295 (Davis, J., dissenting) ('[T]he separation of powers doctrine precludes the legislature from stepping into the judiciary's exclusive domain of prescribing the rules of judicial practice and procedure and similarly precludes the judiciary from overturning or contradicting a constitutional legislative declaration of substantive law.' (quoting In re Daniel H., 133 N.M. 630, 634, 68 P.3d 176, 180 (N.M. Ct. App. 2003))). Consequently, W. Va. Code §§ 55-7B-5(b) and (c) are severable from W. Va. Code § 55-7B-6d and are, therefore, not invalidated by our decision to strike down the non-unanimous jury verdict provision of W. Va. Code § 55-7B-6d.