THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA;
THE WEST VIRGINIA BOARD OF EDUCATION, the
WEST VIRGINIA DEPARTMENT OF EDUCATION and the
SUPERINTENDENT OF SCHOOLS;
THE WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD;
and THE WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY,
Intervenors.
| Deborah L. McHenry The Segal Law Firm Special Assistant Attorney General Silas B. Taylor Senior Deputy Attorney General Charleston, West Virginia Attorneys for Petitioner William C. Porth, Jr., Esq. |
John T. Poffenbarger, Esq. Charleston, West Virginia Thomas B. Miller, Esq. Schrader, Byrd & Companion Wheeling, West Virginia Heather Connolly, Esq. Department of Administration Charleston, West Virginia Attorneys for Respondents Gregory A. Burton, Nichelle Perkins, Kay Huffman Goodwin, Paul Nusbaum, Joe Martin, and Fred VanKirk Chad M. Cardinal, Esq.
|
| Rebecca M. Tinder-Bell Special Assistant Attorney General Charleston, West Virginia Attorney for Intervenors, West Virginia Board of Education, the West Virginia Department of Education, and the State Superintendent of Schools
|
Susan B. Saxe, Esq. Charleston, West Virginia Attorney for Intervenor, The West Virginia Consolidated Public Retirement Board Diana Stout, Esq. Mary Jane Pickens, Esq. Bruce Ray Walker, Esq. Lisa A. Hopkins Ancil Ramey, Esq. S. Thornton Cooper, Esq. Alan
M. Drescher, Esq. |
| Richard E. Hitt Charleston, West Virginia General Counsel for Intervenor, Public Service Commission of West Virginia Michael R. Crane, Esq. Rebecca S. Charles, Esq. Garrett Jacobs William L. Ballard, Esq. Vincent Trivelli, Esq. Charleston, West Virginia Attorneys for Amicus, The Affiliated Construction Trades Foundation, a Division of the West Virginia State Building and Construction Trades Council
Gregory W. Bailey, Esq. |
JUSTICE STARCHER delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS, deeming herself disqualified, did not participate in the decision of this case.
JUDGE TOD KAUFMAN, sitting by temporary assignment.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
JUDGE KAUFMAN concurs and reserves the right to file a concurring opinion.
1. “A writ of mandamus will not issue unless three elements coexist -- (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.” Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 505, 438 S.E.2d 847 (1993).
2. Pursuant
to Article VII, Section 1 of the West Virginia Constitution, the Attorney
General of the State of West Virginia is the State's chief legal officer,
which status necessarily implies having the constitutional responsibility
for providing legal counsel to State officials and State entities.
3. Pursuant
to the separation of powers doctrine set forth in Article V, Section 1 of
the West Virginia Constitution, the Legislature cannot create offices
that will conflict with or curtail the constitutional powers of the offices
provided for by the Constitution; and to transfer the inherent functions
of a constitutional office to another office is to curtail the former. A legislative
act that attempts to accomplish such a transfer is unconstitutional.
4. The
inherent constitutional functions of the Office of the Attorney General of
the State of West Virginia include: (1) to play a central role in the provision
of day-to-day professional legal services to State officials and entities
in and associated with the executive branch of government; (2) to play a central
role in ensuring that the adoption and assertion of legal policy and positions
by the State of West Virginia and State entities, particularly before tribunals,
is made only after meaningful consideration of the potential effects of such
legal policy and positions on the full range of
State entities and interests; (3) to assure that a constitutional officer
who is directly elected by and accountable to the people may express his legal
view on matters of State legal policy generally and particularly before tribunals
where the State is a party.
5. In
light of long-established statutes, practice, and precedent recognizing that
State executive branch and related entities may in some circumstances employ
and use lawyers who are not employees of the Attorney General, such employment
and use -- and statutes, rules, and policies authorizing such employment and
use -- are not per se or facially unconstitutional.
6. To
ensure that the Office of the Attorney General can perform its inherent constitutional
functions, the Legislature has the implicit obligation to provide sufficient
funding to the office. No statute, policy, rule, or practice may constitutionally
operate, alone or cumulatively, to limit, reduce, transfer, or reassign the
duties and powers of the Office of the Attorney General in such a fashion
as to prevent that office from performing its inherent constitutional functions.
Starcher, Justice: This is a case where the
Attorney General of the State of West Virginia claims that executive branch
agencies and officials are violating our State's Constitution by using
lawyers who are not employed or approved by the Attorney General. Through
his petition, the Attorney General asserts that the respondents have a clear
legal duty to cease authorizing the “unlawful” employment of lawyers
by executive branch and related agencies of the State of West Virginia without
the consent of the Attorney General, and to cease the “unlawful”
expenditure of public funds for legal services that are performed by lawyers
other than those who are employed or approved by the Attorney General. We
hold that the employment and use of such lawyers is not barred in all cases;
however, we also hold that the Office of the Attorney General may not be stripped
of its inherent core functions.
7. In
all instances when an executive branch or related State entity is represented
by counsel before a tribunal, the Attorney General shall appear upon the pleadings
as an attorney of record; however, this requirement does not bar other counsel
from also appearing and acting in a legal capacity for the State entity. The
Attorney General additionally has the right to appear as an intervenor as
Attorney General on behalf of the State in all proceedings where the interest
of the State or a State entity is at issue, to assert the Attorney General's
view of the law on behalf of the State.
The Attorney General asks
this Court to hold unconstitutional any statute that purports to authorize
any executive agency, body, or similar instrumentality of the State to employ
and use lawyers who are not employed or approved by the Attorney General;
to prohibit payment of public funds for the services of such lawyers; to require
the payment of money for all such lawyers to be directed to the budget of
the Attorney General; and to deem all such lawyers who are State employees
to be employees of the Attorney General.
The Attorney General specifically
identifies as “unlawful” 216 State-employed lawyers (in 37 State
agencies) who are not employed by the Attorney General;
(See footnote 2) the petition contains averments that state that the Attorney General currently
employs only 65 lawyers. The Attorney General contends generally that as a
result of legislation enacted over the past several decades, there has been
a “creeping encroachment” and usurpation of the constitutional role
of the Attorney General as the State's chief legal officer “to such an
extent that the constitutionally-mandated and elected Office of the Attorney
General is quickly becoming de facto non-existent.”
(See footnote 3)
This Court accepted the Attorney
General's petition, granted intervenor status to several State officials and
entities, and authorized the submission of amici curiae responses to
the petition from other interested persons and entities.
(See footnote 4) We will, in the following discussion, use the term “respondents”
to include all of the State entities and officials -- whether or not they
have been formally granted intervenor status -- that have filed briefs opposing
the relief sought by the Attorney General's petition; and we will include
in the generic term “State entity” both “public” bodies
(see note 17 infra) and the individuals (usually public officials
and employees) who do the work of these public bodies, unless a different
meaning is indicated in the text.
(See footnote 5)
Syllabus Point 1, State ex
rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993).[citations
omitted].
The Attorney General's petition
raises important issues of State-wide and constitutional significance. Our discretionary
exercise of original jurisdiction in mandamus to address these issues is appropriate.
Cf. Manchin v. Browning, 170 W.Va. 779, 296 S.E.2d 909 (1982).
No other constitutional language more specifically defines or delineates the Attorney General's constitutional role as a member of the executive department. Based on this lack of other specific constitutional language -- and based on the “as may be prescribed by law” language quoted above -- the respondents argue that the Legislature has essentially plenary and unfettered discretion to, through statutory action, delineate, limit, or even effectively eliminate the Attorney General's role in providing legal counsel and representation to State entities. Lawson v. Kanawha County Court, 80 W.Va. 612, 618, 92 S.E. 786, 789 (1917) (“The phrases 'prescribed by law' and 'provided by law,' when used in constitutions, generally mean prescribed or provided by statutes.”)
For example, the brief on
behalf of the Cabinet Secretaries of the Departments of Environmental Protection,
Tax and Revenue, Education and the Arts, Health & Human Resources, Military
Affairs & Public Safety, and Transportation states:
According to the scheme of
the Constitution, for example, the Legislature might have decided (or might
decide in the future) that, as far as other officers in agencies in State
government are concerned, the Attorney General should have purely advisory
duties and no representational duties. The Legislature could have created
or could create the office of “solicitor general,” wholly independent
of the office of Attorney General, which would be available to represent the
State in courts and perform other representational functions, while the Attorney
General tends to analyzing questions presented to him and to issuing advisory
opinions. Since the Constitution has not mandated a representational function
for the Attorney General, the Legislature is free to prescribe that duty for
him, or for some other office altogether.
At oral argument in the instant
case, counsel for these Secretaries stated that the constitutional propriety
of the above-quoted hypothetical elimination of the Attorney General's representational
role was counsel's personal view, and not his clients' position in the instant
case. However, the respondents' briefs uniformly assert as a premise of their arguments the theoretical ability
of the Legislature (or other officials in the executive branch, if authorized
by the Legislature) to reduce the practical role of the Office of the Attorney
General in the State's day-to-day legal affairs to a nullity. This overweening
assertion of Legislative “discretion” is the “flip side”
of the Attorney General's assertion of exclusive “jurisdiction”
with respect to all legal matters of any sort in which the State is involved.
We conclude that both sides are overreaching in their assertions.
This is not the first time
this Court has had to wrestle with the question of the essential or inherent
powers and duties of the Office of the Attorney General. In Syllabus Point
2 of State v. Ehrlick, 65 W. Va. 700, 64 S.E. 935 (1909), this Court
concluded that the Office of Attorney General held such powers as did attorneys
general under the common law, subject to redefinition from time to time by
the Legislature. We addressed this issue again in Manchin v. Browning,
170 W.Va. 779, 296 S.E.2d 909 (1982). We concluded there that the Attorney
General did not possess powers arising under the common law. 170 W.Va.
at 785, 296 S.E.2d at 915.
We concluded in Manchin
that the phrase “shall perform such duties as may be prescribed by law”
operated to defeat the assertion that the Attorney General of West Virginia
possesses common-law powers. We held in Syllabus Point 1 of Manchin that
“the powers and duties of the Attorney General are specified by the
constitution and by rules of law prescribed pursuant thereto.”
(Emphasis added.) We observed that: “The plain effect of the provision
is to limit the powers of the Attorney General to those conferred by law laid
down pursuant to the constitution.”
Notwithstanding this “plain
effect,” we concluded in Manchin that the Attorney General is
the “chief legal officer” of the State, 170 W.Va. at 787, 296 S.E.2d
at 917, charged with representing the interests of the State in actions wherein
the State is a party and charged with representing the State's officers in
actions wherein the officer was a party by reason of being the State's representative.
(See footnote 7)
We required there that when the Attorney General represents a State officer,
rather than the State itself, the Attorney General was required to advocate
the policy position of the State officer in that litigation, even when the
officer's policy position differed from that preferred by the Attorney General.
In 1909, the federal courts
were added to the named forums in which the Attorney General “shall appear
as counsel for the state,” and the Attorney General was further required
to “defend all actions and proceedings against any state officer in his
official capacity . . . , but should the state be interested against such
officer, he shall appear for the state; . . . .”
Most importantly, we said
in Manchin:
The Attorney General
is more properly designated as the chief legal officer of the State,
with the law as his area of special expertise.
*** By the nature of his office he is the general lawyer for the State.
*** [E]xplicit in the title Attorney
General is the proposition that the holder of the title is the general lawyer
for the State . . .
170 W.Va. at 787-788, 296 S.E.2d at 917-18. (Emphasis added.)
In State ex rel. Caryl v.
MacQueen, 182 W.Va. 50, 54, 385 S.E.2d 646, 650 (1989), we again addressed
the nature of the office, stating: “[E]xplicit in the title attorney general
is the proposition that the holder of the title is the general counsel for the
State.”
From the time West Virginia's
Constitution was first adopted, there has been consistent legislative
recognition of the Attorney General's role as that of the State's chief legal
officer, having a central responsibility for providing legal counsel and services
to the State and State entities.
The West Virginia Legislature
of 1872-73 prescribed the role of the Attorney General as follows:
The Attorney General shall
give his opinion and advice in writing whenever required to do so by the governor,
or other officers at the seat of government, or by the board of public works.
He shall appear as counsel
for the State in all cases in which the state is interested, depending [pending]
in the supreme court of appeals or in the circuit court of the county in which
the seat of government may be.
1872-73 W. Va. Acts, chapter 54, pp. 141-142.
Chapter 120, Section 2, Barnes'
W.Va. Code 1923, p. 2127 [1909].
(See footnote 8)
Long-standing principles of
constitutional construction provide that:
A contemporaneous and long-standing
legislative construction of a constitutional provision is entitled to significant
weight . . .. [W]here
there has been a practical construction which has been acquiesced in for a
considerable period, considerations in favor of adhering to this [constitutional]
construction sometimes present . . . a plausibility and force which is not
easy to resist.
State ex rel. Board of University v. City of Sherwood, 489 N.W.2d 584,
587-588 (N.D. 1992). (Citations omitted.)
(See footnote 9)
We believe it is clear from
these authorities that there are certain core functions of the Office of Attorney
General that are inherent in the office, of which the Office of Attorney General
may not be deprived, and which may not be transferred to or set up in conflict
with other offices. The suggestion by some of the respondents that the Legislature
possesses unfettered discretion to define, delineate, and limit the duties of
the Attorney General is wholly at odds with the historical and well-settled
understanding of the constitutional role of the Attorney General. Accordingly, we hold that pursuant to Article VII,
Section 1 of the West Virginia Constitution, the Attorney General of
the State of West Virginia is the State's chief legal officer, which status
necessarily implies having the constitutional responsibility for providing
legal counsel to State officials and State entities. The nature and extent
of that “constitutional responsibility” remains to be hereinafter
analyzed.
168, 92 S.E. 245, 246 (1917).
(See footnote 10) The fundamental principle
involved in all of these cases is the doctrine of separation of powers. In the
case before us, the doctrine has two aspects. One aspect is the constitutional
inability of the Legislature to define the powers and duties of the Office
of Attorney General and the other constitutional offices so as to deprive
the Office of Attorney General, or any of the other constitutional offices,
of the inherent functions and purposes thereof. The second aspect is the maintenance
of the concept of an executive branch that is itself divided among the several
constitutional offices provided for in the Constitution, each with
a separate, distinct, and vital contribution to be made to the operation of
the executive branch.
Other jurisdictions have taken
a similar approach. In State ex rel. Mattson, Treasurer v. Kiedrowski,
391 N.W.2d 777, 782 (Minn. 1986), the Minnesota court stated:
The mandate in Section 1
of Article V, that the executive department consist of a governor, lieutenant
governor, secretary of state, auditor, treasurer and attorney general, implicitly
places a limitation on the power of the legislature, under Section 4 of Article
V, to prescribe the duties of such offices. The limitation is implicit in
the specific titles the drafters gave to the individual offices.
In Love v. Baehr,
47 Cal. 364, 368 (1874), the California Supreme Court held that the legislative
power to assign duties to constitutional offices was limited to “such
duties as in their nature have heretofore appertained to similar offices elsewhere.”
Similarly, the Supreme Court of North Dakota stated in Ex Parte Corliss,
16 N.D. 470, 476-77, 114 N.W. 962, 965 (1907):
We do not deny the power
of the Legislature to prescribe duties for these officers, which power carries
with it by implication the right to change such duties from time-to-time as
the public welfare may demand; but we deny its power to strip such offices,
even temporarily, of a portion of their inherent functions and transfer them
to officers appointed by central authority.
In American Legion Post
No. 279 v. Barrett, 371 Ill. 78, __, 91 20 N.E.2d 45, 51 (1939), the Supreme
Court of Illinois stated:
The constitution . . . provides
that public officers, including the State Treasurer, shall perform
such duties as may be required by law. Nothing in the constitution further
defines the duties of the State Treasurer. This Court has held that those
duties are such as are to be implied from the nature of the office and of
them he may not be deprived or relieved. [citations omitted].
And in Wright v. Callahan,
61 Idaho 167, 181, 99 P.2d 961, 966 (1940) the Supreme Court of Idaho held:
[T]o permit the legislature
to create an office and invest in the appointee the powers and duties conferred
upon a constitutional officer, would be to permit the legislature to nullify
the Constitution and reduce it to a mere scrap of paper.
(See footnote 11)
The executive branch, as well
as the Legislature, is similarly constrained with respect to the inherent or
core functions of constitutional offices. In a case holding that the Governor
may not by veto reduce to zero the appropriations necessary to the operation
of certain constitutional offices, this Court stated:
Clearly, the framers of the
Constitution and the people intended that these [constitutional] officers function
as a viable part of the governmental process. How then can it be reasoned that
the Governor, also no more than a constitutional officer, can eliminate and
prohibit the function of these offices?
State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 118, 207 S.E.2d
421, 432 (1973).
Unlike the federal government,
where essentially the entire executive power is vested in one elected officer,
the President of the United States, our State Constitution apportions
executive power among several elected officers. These offices, each operating
in some respects independently, must combine and cooperate (even if they have
differing policy views and perspectives) to provide an efficient and effective
executive branch of government.
The doctrine of separation
of powers is expressed in Section 1, Article V of our Constitution:
The legislative, executive
and judicial departments shall be separate and distinct, so that neither shall
exercise the power properly belonging to either
of the others; nor shall any person exercise the powers of more than one of
them at the same time . . ..
This Court has repeatedly
and steadfastly required adherence to the separation of powers doctrine.
Thus, we have recognized
the need for some flexibility in interpreting the separation of powers doctrine
in order to meet the realities of modern day government and particularly the
proliferation of administrative agencies. We have not however hesitated to
utilize the doctrine where we felt there was a direct and fundamental encroachment
by one branch of government into the traditional powers of another branch
of government.
Appalachian Power Co. v. PSC, 170 W.Va. 757, 759, 296 S.E.2d 887, 889
(1982).
(See footnote 13)
In State ex rel. Meadows
v. Hechler, 195 W.Va. 11, 14, 462 S.E.2d 586, 589 (1995), we stated:
The separation of powers doctrine
expressly stated in our constitution is a core principle of our system of government,
whose roots can be traced back to the founding of this country. See Hodges
v. Public Serv. Comm'n, 110 W.Va. 649, 652-54, 159 S.E. 834, 835-36 (1931)
(discussing the origin of the separation of powers principle and noting “that
the very first resolution passed in the convention which framed our national
Constitution called for a separation of governmental powers [.]”) . . .
In State ex rel. State Building Commission v. Bailey, 151 W.Va. 79, 150 S.E.2d 449 (1966), we discussed this fundamental precept of
government:
The
Constitution, in distributing the powers of government, creates three distinct
and separate departments -- the legislative, the executive, and the judicial.
This separation is not merely a matter of convenience or of governmental mechanism.
Its object is basic and vital, namely, to preclude a commingling of these
essentially different powers of government in the same hands. * * *.
If
it be important thus to separate the several departments of government and
restrict them to the exercise of their appointed powers, it follows, as a
logical corollary, equally important, that each department should be kept
completely independent of the others -- independent not in the sense that
they shall not cooperate to the common end of carrying into effect the purposes
of the Constitution, but in the sense that the acts of each shall never
be controlled by, or subjected, directly or indirectly, to, the coercive influence
of either of the other departments . . . . [emphasis in original].
With the principles underlying
these cases in mind, we therefore hold, pursuant to the separation of powers
doctrine set forth in Article V, Section 1, of the West Virginia Constitution,
that the Legislature cannot create offices that will conflict with or curtail
the constitutional powers of the offices provided for by the Constitution;
and to transfer the inherent functions of a constitutional office to another
office is to curtail the former. Therefore, a legislative act that attempts
to accomplish such a transfer is unconstitutional.
The Attorney General urges us
to treat the Office of Attorney General as possessing exclusive constitutional
authority with regard to legal representation of the various entities of State
government, because the office is an elective one, and because, as we discuss
herein, the Office of Attorney General historically functioned for some time
as essentially the sole source of legal counsel and legal representation for
all of the entities of State government.
This Court recognized in Manchin,
supra, that the Legislature had authorized some executive department
agencies to “hire their own counsel using agency funds.” 170 W.Va.
at 788, n.4, 296 S.E.2d at 917-918, n.4. And we held in Syllabus Point 2 of
State ex rel. Caryl v. McQueen, 182 W.Va. 50, 385 S.E.2d 646 (1989) that:
“The Attorney General is the legal representative of the State and its
agencies unless specifically exempted from his duty by statute.” (Emphasis
added).
(See footnote 14)
In neither of those cases did we intimate that the Legislature may not under
any circumstances authorize the use of legal counsel other than the Attorney
General -- nor did we in either case intimate that the Legislature had carte
blanche to eviscerate the role of the Attorney General as the State's
chief legal officer.
As the Supreme Court of Kentucky
stated in Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829, ___,
165 S.W.2d 820, 829 (1942):
[T]he General Assembly may
. . . authorize the employment of other counsel for the departments . . ..
[However, the Johnson court went on to say] as the legislature cannot
abolish the office directly, it cannot do so indirectly by depriving the incumbent
of all of his substantial prerogatives or by practically preventing him
from discharging the substantial things appertaining to the office.
(Emphasis added).
(See footnote 15)
The fundamental reason that
all three branches of our State government must accord the Office of Attorney
General and all constitutional offices appropriate respect and dignity rests
on the fact that the people, by their Constitution, have spoken clearly
and decisively in creating these offices. As we stated in State ex rel. Brotherton
v. Blankenship, 157 W.Va. 100, 119-120, 207 S.E.2d 421, 433 (1973):
On many occasions it has been
suggested to the people that the election of Secretary of State, Auditor, Treasurer,
Commissioner of Agriculture and Attorney General be eliminated and that the
appointment to such offices be left to the discretion of the Governor. As of
this date such concept has not been approved by the electorate and the Governor
cannot achieve that end without such approval. . . . It would defy reality and
reason to say that [these] officers could conduct the business of such offices,
as intended by the people, without any funds with which to operate and
personnel to assist them. [emphasis added]
(See footnote 16)
At the time of our Constitution's
adoption, West Virginia had a small central government of limited responsibilities;
a government that in almost every instance would hold and maintain a single
perspective or position on legal issues. Under modern conditions, however,
our State government is a behemoth organization, comprised of scores of agencies,
officials, bureaus, authorities, commissions, councils, divisions, departments,
agents, associations, and public corporations. Many of these entities are
in numerous respects independent, but nevertheless have sufficient State authority,
direction, assistance, or funding so as to make them “State” entities
in some or all circumstances.
(See footnote 17)
Had these two statutes been
scrupulously observed over the years, it is unlikely that the petition presently
before this Court would ever have been filed. However, as the Attorney General's brief clearly
demonstrates, the Legislature has chosen to indirectly amend these
statutes by providing, in other enactments, express authority for various
State entities to hire additional legal counsel not under the direction of
the Attorney General.
One reason for the accumulation
of statutes permitting the hiring and use of non- Attorney General lawyers
is almost certainly the development of the large State government composed
of diverse State entities, to which we earlier alluded. These State entities
engage in a wide variety of activities and enterprises, often with little
or no contact or coordination with one another. Complex and specialized legal
issues are involved in nearly every entity's activity; many entities require
intensive, day-to-day, professional legal expertise, judgment, advice, and
representation. Moreover, in a not insubstantial number of cases, these diverse
State entities have contrasting perspectives and interests, and may take different
(even competing or conflicting) legal positions before tribunals -- sometimes
on important issues involving State rights and powers generally, citizen or
business rights, etc. Under
these circumstances, the perceived need for specialized “in-house”
legal expertise in certain fields is understandable. And in a government necessarily
containing diverse entities, with diverse perspectives, there is
an inherent tendency to seek to bring a particular entity's legal staff more
under the direct employ and control of the State entity -- to further the
ends of loyalty and accountability to the State entity. This tendency, however,
may not be permitted to undermine the basic constitutional scheme that establishes
a chief State legal officer with central responsibility regarding the legal
affairs of the State.
While providing legal counsel
and services to a large and diverse range of State entities may be theoretically
achievable under a system where the Attorney General's direct employees are
the sole and exclusive legal representatives and counselors for every State
entity in every situation, it cannot be said that such a system is the only
feasible way to achieve this end. Moreover, we are not cited to any authority,
from the collective jurisprudence of a nation where there are more than forty
voter-elected, constitutional, state attorneys general, where a claim of complete
and exclusive jurisdiction over all state legal matters by an attorney general
has been upheld. Nor do the authorities, it should be noted, yield up any
case that upholds a claim of unfettered Legislative discretion with respect
to the role, powers, and duties of the constitutional Office of Attorney General.
(See footnote 21)
We do not doubt that the centralized
provision of legal services to the State by a single elected public official
was the intent of the establishment of the Office of the Attorney General
in 1872-73 -- when our State government was less complex and greatly reduced in size, as compared
to modern-day state government. However, to say this is only to state a tautology
that, for purposes of our constitutional analysis in the instant case, leads
nowhere. As in the case of the constitutional guarantee of education in Randolph
County Bd. of Educ., supra, to make our constitutional analysis
in the instant case meaningful, we must identify the inherent, “core”
functions of such centralization that are both vital and viable under modern
conditions.
As we have discussed, one
distinctive aspect of modern governmental conditions is the presence of multiple
State entities with varying perspectives and interests. Under these conditions,
if no central legal office is substantially involved with the legal affairs
of a State entity, especially in litigation, legal decisions may be made by
the entity (or by a tribunal) that may well have broad effects on the State
and on other State entities generally -- without any awareness or input from
potentially affected State entities that have no knowledge of the decisions,
litigation, or issues involved. Members of this Court have on more than one
occasion expressed concern that non-involvement of the Attorney General in
litigation involving State entities can lead to “harm and damage to the
State.” State ex rel. Affiliated Construction Trades Council
v. Vieweg, 205 W.Va. 687, 700 n.6, 520 S.E.2d 854, 867 n.6 (1999) (Workman,
J., concurring); see also W.Va. Division of Environmental Protection v.
Kingwood Coal Co., 200 W.Va. 735, 755 n.1, 490 S.E.2d 823, 843 n.1 (Starcher,
J., dissenting).
(See footnote 22)
Of course (and this point cannot
be over-emphasized), each State entity is entitled to fully loyal, confidential,
conscientious, and zealous legal counsel in developing, asserting, and defending
its particular legal perspective.
(See footnote 23)
But just as importantly, each State entity -- and the State and her citizens
generally -- are, pursuant to the constitutional structure established by the
framers, entitled to a governmental structure wherein a central legal office,
along with providing day-to-day legal services to a wide range of State entities,
can consider the issues in a given case in light of the broader interests of
the State and in view of the impact on the full range of State entities. In
our view, this is a core function of an Attorney General's office that is essential
in modern times to achieve the constitutional purpose of the framers in 1872-73 when they established a single, elected chief legal officer for
the State.
This Court invites the executive
branch entities involved in the instant case, the Legislature, and the Attorney
General to commence a full review of the practices that have emerged over
the years with regard to the use of in-house lawyers by various State entities
(and the hiring of private counsel to represent the State interest in litigation,
see footnote 25.) The policy enunciated by the Legislature in W.Va.
Code, 5-3-1 and 2, addresses the public interest in (1) assuring a consistent
“legal policy” for the State; (2) avoiding the undue expenditure
of public funds for legal counsel outside the Office of the Attorney General;
and (3) recognizing the decision of the people of this State to have, in theory
and in fact, an elected chief legal officer of the State, answerable to them
at the polls. It is appropriate for the Legislature to undertake a review
of its various enactments that may present unresolved conflict with the long-standing
expressions of constitutional purpose and public policy that are reflected
in W.Va. Code, 5-3-1, et seq., in order to, in the words of
the Preamble to our Constitution, “seek diligently to promote,
preserve and perpetuate good government” for our State.
More often than not, the various
occupants of the Office of Attorney General have been, upon request, most
cooperative with various executive agencies who have advanced the need for
in-house counsel or, on a particular occasion, for representation in litigation
by a lawyer or lawyers outside the Office of the Attorney General, either
by the usual or occasional use of “in-house” counsel or, on special
occasions, private counsel.
(See footnote 25)
Moreover, we have recognized that, on occasion, the Attorney General may be unable
to appear in litigation because of a conflict, or may be required to allow
representation of a State agency by private counsel or by assistants between
whom a wall of client confidentiality must be erected. Nevertheless, we also
recognize that Attorneys General have historically performed their clear constitutional
duty to respond fully and adequately when requested by State entities to provide
legal advice and representation, and have the clear responsibility to continue
doing so.
The principles of comity and
mutual respect should govern the day-to-day operation of these relationships.
It is inherent in the principles of a constitutionally divided executive and
in the separation of powers that respectful cooperation and coordination are
expected within the divided executive and between the executive and legislative
branches, in the absence of the absolute necessity for confrontation. In that
vein, this Court should not be asked to serve as -- and consequently we seek
to avoid being -- a referee of the relations among constitutional equals.
(See footnote 26)
Having said that, we are nevertheless
of the opinion that care must be taken to accord to the Attorney General the
full opportunity to perform his constitutional and statutory duties. We therefore
hold that to ensure that the Office of the Attorney General can perform its
inherent constitutional functions, the Legislature has the implicit obligation
to provide sufficient funding to the office. Additionally, no statute, policy,
rule, or practice may constitutionally operate, alone or cumulatively, to
limit, reduce, transfer, or reassign the duties and powers of the Office of
the Attorney General in such a fashion as to prevent that office from performing
its inherent constitutional functions.
To implement the foregoing,
we further hold that in all instances when an executive branch or related
State entity is represented by counsel before a tribunal, the Attorney General
shall appear upon the pleadings as an attorney of record; however, this requirement
does not bar other counsel from also appearing and acting in a legal capacity
for the State entity. The Attorney General additionally has the right to appear
as an intervenor as Attorney General on behalf of the State in all proceedings
where the interest of the State or a State entity is at issue, to assert the
Attorney General's view of the law on behalf of the State.
(See footnote 27) To maintain a proper constitutional
balance, however, this right must always be exercised with restraint and due
respect by the State entity and the Attorney General.
Moreover, we are firmly convinced
that with the foregoing principles having been articulated, the parties in the
instant case now have both the tools and the duty to work together to address and resolve
specific issues, using principles of accommodation, respect, and comity. We
therefore deny the specific relief requested by the Attorney General, but
we grant the writ as moulded by requiring the petitioner and the party respondents
to be guided by the holdings set forth in this opinion.
(See footnote 29)
If non-judicial resolution of any specific issues that arise cannot be achieved
using the principles of accommodation, respect, and comity, the parties may
seek further resolution again in court.
|
Agency
|
Number of Attorneys |
Total Annual Salary
|
Purported Statutory Authorization |
| Administration |
2 |
$128,008 |
W. Va. Code 5A-1-3 |
| Auditor |
2 |
$117,756
|
12-4-8a |
| Banking |
|
$114,852 | 31A-2-5(b) (2002) |
| Child Support Enforcement |
28 |
$1,224,099
|
48A-2-14 |
| Concord College |
1 |
$61,000
|
18B-1-8, 18B-2A-4 |
| Consolidated Public Retirement System (retained by contract) | 1 | $74,880 (Maximum annual compensation.) |
5-10D-2(d) |
| Corrections | 1 |
$49,836
|
|
| Dentists and Hygienists, Board of | 2 |
$60,000
|
|
| Development Office | 1 |
$72,000
|
31-15-5, 31-15-6 |
| Education, Department of | 3 |
$161,250
|
|
| Employment Programs (29 Employed as ALJs, 24 as Staff Lawyers) | 53 |
$2,662,113
|
21A-2-6, 21A-2-18, 21A-7-20, 23-1-1 |
| Environmental Protection, Division of | 13 |
$723,344
|
22-1-6 |
| Environmental Quality Boards (Employed as Advisor/ Administrator) | 1 |
$44,723
|
|
| Ethics Commission | 1 |
$66,256
|
6B-2-2 |
| Health and Human Resources (excluding Child Support Enforcement) | 13 |
$621,280
|
9-7-1, 16-5C-14, 16-5D-14, 16-5H-14, 16-5N-14 |
| Health Care Authority | 2 |
$138,132
|
16-29B-7 |
| Higher Ed | 1 |
$100,092
|
18B-1B-4 |
| Highways | 17 |
$926,120
|
17-2A-7 |
| Housing Development Fund | 1 |
$75,504
|
|
| Insurance Commissioner | 5 |
$223,461
|
33-2-3, 33-2-17 |
| Labor, Division of | 1 |
$57,732
|
|
| License Practical Nurses, Board of (Employed as Advisor/ Administrator) | 1 |
$53,911
|
|
| Lottery Commission | 2 |
$75,940
|
|
| Marshall University | 1 |
$110,000
|
18B-1-8, 18B-2A-4 |
| Medicine, Board of | 2 |
$85,544
|
30-3-7 |
| Military Affairs and Public Safety, Department of | 1 | $56,512 |
|
| Motor Vehicles | 2 |
$113,616
|
|
| Pharmacy, Board of (Employed as Advisor/ Administrator) | 1 |
$57,543
|
|
| Public Employees Insurance Agency | 1 |
$61,092
|
|
| Public Service Commission (8 employed as ALJs, 22 as staff attorneys) | 30 |
$1,779,708
|
24-1-8 |
| Regional Jail and Correctional Facility Authority | 1 |
$60,756
|
|
| Shepherd College | 1 |
$71,602
|
18B-1-8, 18B-2A-4 |
| State Tax Division | 12 |
$568,800
|
11-1-1a (2002) |
| Tax and Revenue, Department of | 1 |
$80,004
|
|
| Treasurer | 2 |
$120,084
|
12-4-8a |
| WV Northern Community College | 1 |
$61,920
|
18B-1-8, 18-2A-4 |
| WV School of Osteopathic Medicine | 1 |
$64,896
|
18B-1-8, 18B-2A-4 |
| WV State Police | 1 |
$45,720
|
|
| WVU | 5 |
$364,260
|
18B-1-8, 18B-2A-4 |
| TOTAL: | 217 | $11,534,347 | |
| TOTAL WITHOUT ALJs |
180 |
$9,439,918 |
|
| Attorney General's Office |
65 |
$3,507,879
|
W. Va. Code 5-3-1 and 5-3-2, etc |
This table is a compilation of the listed agencies' individual responses to FOIA requests as of August, 2000, supplemented with updated information from the Auditor's response to a FOIA request for information derived from the Payroll Information System, as of July, 2001. Because the Auditor's response could not be as complete as the original agency responses, some changes occurring since August, 2000, may not be properly reflected herein. After submission of this case to the Court, the table was amended to reflect newly enacted statutes authorizing the commissioners of Banking and Tax to hire in-house counsel or to retain outside counsel without the consent of the Attorney General. It has further been amended to incorporate counsel retained by the Consolidated Public Retirement Board, on contract, as indicated in the Board's Brief.