Starcher, Justice, concurring:
I write separately to make several points.
First, I want to express my
appreciation that this Court, consistent with our longstanding jurisprudence,
has recognized that the modern State is the ultimate guarantor of a minimal
level of subsistence to all of its citizens. (In my opinion, this duty extends
to basic medical care, as well as shelter, food, and education.
(See footnote 1) )
Far from breaking new ground,
this Court is acting in the most conservative fashion, as our decision is
grounded in four centuries of Anglo-American statutory, constitutional, and
common law, beginning with the English Poor Laws and continuing in our Constitutional
Framers' adoption of language explicitly recognizing this duty.
Second, I want to point out that the Court's opinion does not preclude more
narrowly drawn claims, even claims possibly seeking limited cash assistance, where other
support systems are simply inadequate to achieve a minimal level of subsistence. For
example, although governmentally supported housing programs may be available, it appears
from the record that if a person has no cash to pay utilities, the housing support will not be
made available. My point is that under the majority opinion, it is precisely the facial
existence of a wide array of support systems that have the cumulative effect of preventing
utter destitution that precludes the petitioners as a class from prevailing on their claim for
an extension of cash benefits.
Third, I want to recognize that all of the litigants and counsel in the instant
case, and the special master and his team, did a thorough and professional job, that brings
credit to them and to our State of West Virginia. Throughout this difficult litigation, all
involved, it seems to me, acted with candor, and tried to keep honest human concerns in the
forefront. These qualities showed in their work at every level.
Fourth, I especially appreciate the petitioners, who shared the details of their
difficult conditions before a court of law. They showed courage that all of us should respect
and admire. I am not happy that we as a Court, primarily because of our limited role in a
government of divided responsibilities, cannot afford them greater relief.
Finally, while the jurisprudential step that we take by explicitly acknowledging
the State's constitutional duty as a last-resort guarantor of subsistence is a significant and
positive one, it must be recognized that our decision is “cold comfort” to an innocent child
whose family must scrape and suffer, while other children enjoy privilege and surplus.
Thomas Jefferson is reputed to have once said, regarding human slavery and
the founding of this Nation, “I tremble for my country when I reflect that God is just.”
In rendering a judicial opinion in the instant case, I must of necessity directly
acknowledge the terrible injustice of how so many of our children - made in the image of
God and part of the human family - are denied a fair chance in life.
When I do so - not as a judge, but as a member of that human family, as an
American, and as a West Virginian - I cannot feel proud of our society, for all of our
achievements.
I feel ashamed. We must do better.