McGraw, Justice, concurring, in part, and dissenting, in part:
With that portion of the majority's opinion which holds unconstitutional the
mechanism by which six members of the Grant Committee are appointed, under W.Va. Code
§29-22-18a(d)(3), I concur. The separation of powers and appointments provisions of our
State Constitution clearly prohibit this type of legislative encroachment on the powers of the
executive branch. However, while the appointment mechanism utilized by the Legislature
was constitutionally flawed, I believe the Grant Committee's initial approval of the projects
should be permitted to stand.
Additionally, without hesitation, I respectfully dissent from the majority's
holding that the instant statute violates the delegation of powers provision. Accordingly, I
believe the projects approved by the Grant Committee should be allowed to immediately
proceed.
It is beyond cavil that those projects which were approved by the Grant
Committee in the first instance will be approved again by the reconstituted Committee. Thus, the majority's hyper-technical resolution of this issue serves no practical purpose other
than to unnecessarily delay the commencement of projects sorely needed throughout this
State. The majority expressly invites the executive to re-appoint the original Committee
members to the new Committee on the ground that the unconstitutional “taint” attaches to
the appointment process rather than to the individual Committee members. Simply put,
considering the composition and votes of the new Grant Committee will remain exactly the
same as the first one, the judicially-imposed requirement that the long and arduous
application process be repeated only so that the very same projects will be re-approved, is an
exercise in futility. In my view, the more judicious solution would be to allow the votes of
the remaining three, lawfully appointed members of the Grant Committee to stand, all of
which votes, presumably, were favorable to each of the previously-approved projects.
I further disagree with the majority's holding that the subject legislation
violates the delegation of powers provision of our State Constitution because it does not
include sufficient statutory guidance to the Grant Committee to assist it in the project
application and selection process. Inexplicably, the majority opinion fails to provide any
analysis, meaningful or otherwise, of the specific statutory language it finds objectionable
and therefore, unconstitutional.
To the contrary, I find the language of W.Va. Code §29-22-18a(d)
(See footnote 1)
to be more
than adequate in providing guidance to the Grant Committee in its decision-making process;
indeed, the guidelines included in W.Va. Code §29-22-18a(d) are at least equal to the
statutory guidance given to the school building authority, which was upheld by this Court in
State ex rel. Marockie v. Wagoner (WagonerII), supra.
Finally, I am reminded that the genesis of establishing the economic
development project fund was to assist in the funding of the Victorian Mall project in
Wheeling, West Virginia. The purpose of that project was to stimulate the economy of that
city's downtown area, which was once a vital business and retail district that, like many
towns in West Virginia and across the nation, has fallen on hard financial times. Were it not
for the Victorian Mall project, which has not yet been approved by the Grant Committee, the
special revenue fund at issue might not have ever been created. I believe that project should
have been approved in the first instance.
For these reasons, I respectfully concur in part, and dissent in part from the
Court's opinion in this case.
The Legislature finds and declares that in order to attract new
business, commerce and industry o this state, to retain existing
business and industry and industry providing the citizens of this
state with economic security and to advance the business
prosperity of this state and the economic welfare of the citizens
of this state, it is necessary to provide public financial support
for constructing, equipping, improving and maintaining
economic development projects, capital improvement projects
and infrastructure which promote economic development in this
state.
Footnote: 1