State v. West Virginia Economic Dev. Auth.

• Decision Date: 17 October 2003
• Docket Number: No. 31564., No. 31540, No. 31541
• Citation: 588 S.E.2d 655,214 W.Va. 277
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. CITIES OF CHARLESTON AND HUNTINGTON AND ITS COUNTIES OF OHIO AND KANAWHA, West Virginia, Petitioners v. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY, a Public Corporation, Respondent and State of West Virginia ex rel. Rev. Jim Lewis and John Cooney, Petitioners v. West Virginia Economic Development Grant Committee; West Virginia Economic Development Authority; City of Charleston; Kanawha County Commission; City of Huntington; and Ohio County Commission, Respondents and Greenbrier County Coalition Against Gambling Expansion and Cabell County Coalition Against Gambling Expansion, Unincorporated Associations, Petitioners v. West Virginia Lottery Commission and John Musgrave, Its Director, Respondents West Virginia Racing Association, Intervenor.

588 S.E.2d 655

214 W.Va. 277

STATE of West Virginia ex rel. CITIES OF CHARLESTON AND HUNTINGTON AND ITS COUNTIES OF OHIO AND KANAWHA, West Virginia, Petitioners v. WEST VIRGINIA ECONOMIC DEVELOPMENT AUTHORITY, a Public Corporation, Respondent and State of West Virginia ex rel. Rev. Jim Lewis and John Cooney, Petitioners v. West Virginia Economic Development Grant Committee; West Virginia Economic Development Authority; City of Charleston; Kanawha County Commission; City of Huntington; and Ohio County Commission, Respondents and Greenbrier County Coalition Against Gambling Expansion and Cabell County Coalition Against Gambling Expansion, Unincorporated Associations, Petitioners v. West Virginia Lottery Commission and John Musgrave, Its Director, Respondents

West Virginia Racing Association, Intervenor.

Nos. 31540, .

Supreme Court of Appeals of West Virginia.

Submitted October 10, 2003.

Decided October 17, 2003.

Concurring Opinion of Justice Albright December 8, 2003.

Stephen B. Farmer, Farmer, Cline & Arnold, Charleston, for Cities of Charleston and Huntington, and Counties of Ohio and Kanawha, WV and Robert P. Fitzsimmons, Fitzsimmons Law Offices, Wheeling, for Ohio County, WV.

Darrell V. McGraw, Jr., Attorney General, Charleston and William Herlihy, Special Assistant Attorney General, Paula L. Durst, Michael B. Stuart, Spilman, Thomas & Battle, Charleston, for West Virginia Economic Development Authority.

Larry L. Harless, Cottageville, for Reverend Jim Lewis and John Cooney, and Greenbrier County Coalition Against Gambling Expansion and Cabell County Coalition Against Gambling Expansion.

Darrell V. McGraw, Jr., Attorney General and Katherine A. Schultz, Senior Deputy Attorney General, Charleston, for West Virginia Economic Development Grant Committee.

Darrell V. McGraw, Jr., Attorney General and Thomas R. Goodwin, Special Assistant Attorney General, Johnny M. Knisely, II, Goodwin & Goodwin, Charleston, for West Virginia Lottery Commission and John Musgrave.

Rudolph L. DiTrapano, Sean P. McGinley, Richard S. Han, DiTrapano, Barrett & DiPiero, Charleston, for Intervenor West Virginia Racing Association.

Thomas P. Maroney, Thomas P. Maroney, LC, for Amicus Curiae, West Virginia Labor Federation, AFL-CIO.

Richard E. Boyle, Jr., Kay Casto & Chaney, for Amicus Curiae, West Virginia Amusement and Limited Video Lottery Operators Association, Inc.

Roger D. Hunter, for Amicus Curiae, School Building Authority of West Virginia.

Louis S. Southworth, II, Wendel B. Turner, Jackson & Kelly, and Thomas A. Heywood, Bowles Rice McDavid Graff & Love, for Amici Curiae, West Virginia Business Roundtable, West Virginia Business & Industry Council, and West Virginia Hospitality & Travel Association, Inc.

Vincent Trivelli, Stuart Calwell, for Amicus Curiae, Affiliated Construction Trades Foundation, a division of the West Virginia State Building and Construction Trades Council, AFL-CIO. MAYNARD, Justice:

These consolidated cases arise from three petitions seeking writs of mandamus from this Court in regards to the issuance of revenue bonds by the West Virginia Economic Development Authority for the purpose of financing several economic development projects in the State certified by the West Virginia Economic Development Grant Committee pursuant to W.Va.Code § 29-22-18a(d) (2003).

In case number 31540, Petitioners City of Charleston, City of Huntington, Ohio County and Kanawha County seek a writ of mandamus from this Court to compel the West Virginia Economic Development Authority to issue revenue bonds to finance certified projects for which they received grants. For the reasons stated below, we grant this writ as moulded.

In case number 31541, Petitioners Rev. Jim Lewis and John Cooney seek a writ of mandamus from this Court to either prevent the issuance of the bonds or at least to mandate that all private corporations and persons who benefit economically from the grants issued by the West Virginia Economic Development Authority be required to pay back to the State, at a low interest rate, the financial equivalent of the economic benefits received from the grants.¹ The petitioners also request that the Court refer this matter to a Special Commissioner for the taking of evidence. For the reasons stated below, we deny this writ.

In case number 31564, Petitioners Greenbrier County Coalition Against Gambling Expansion and Cabell County Coalition Against Gambling Expansion seek a writ of mandamus against the West Virginia Lottery Commission and Director John Musgrave requiring the Commission to cease and desist the further operation of video lottery gambling pursuant to W.Va.Code §§ 29-22A-1, et seq. and 29-22B-101, et seq., and further requiring the complete shutdown of all other State lottery games until such time as these games are brought into full compliance with applicable legal requirements. For the reasons stated below, we deny this writ.

I. FACTS

The background facts to this case are found in State ex rel. WV Citizens Action Group v. Economic Development Grant Committee, 213 W.Va. 255, 580 S.E.2d 869 (2003) (Grant Committee I). That case involved an appeal of the West Virginia Citizen Action Group from an order of the Circuit Court of Kanawha County upholding the constitutionality of portions of W.Va.Code § 29-22-18a(d)(3) (2002), specifically as it pertained to the manner in which members of the West Virginia Economic Development Grant Committee ("Grant Committee") were appointed and the process by which the Grant Committee selected and approved grant applicants. This Court determined that the appointment mechanism for the Grant Committee violated the separation of powers and appointments provisions of the state constitution, and that the Legislature wrongfully delegated its powers in providing a lack of sufficient standards for the Grant Committee's use in evaluating the submitted grant applications. We concluded that due to these constitutional infirmities, the Grant Committee's approval of the various grant applications was of no force and effect.

The Legislature subsequently amended W.Va.Code § 29-22-18a in a special session for the purpose of conforming the statute to this Court's directives. Shortly thereafter, the Economic Development Grant Committee was reconstituted as provided for in the amended statute, and on August 20, 2003, the Grant Committee certified forty-nine grants and one loan in the aggregate amount of $225,855,802.00. The following day, the Governor, by executive order, directed the Economic Development Authority ("the Development Authority" or "the Authority") to issue revenue bonds to fund the certified projects pursuant to W.Va.Code § 29-22-18a(d)(1) (2003).² However, the Development Authority's Board refused to approve a resolution authorizing the issuance of the revenue bonds citing unresolved legal issues. On August 25, 2003, Petitioners the Cities of Charleston and Huntington and Counties of Ohio and Kanawha filed a petition for a writ of mandamus ("Cities and Counties Petition") with this Court against the Development Authority praying that this Court issue a writ of mandamus ordering the Authority to issue the revenue bonds. Petitioners Rev. Jim Lewis and John Cooney filed a petition with this Court ("Lewis Petition") on September 9, 2003, praying for a writ of mandamus to be directed against the West Virginia Economic Development Authority and others mandating, inter alia, that private corporations and persons that benefit economically from the grants be required to repay, at a low interest rate, the equivalent of the economic benefit received from the grants. By order of September 10, 2003, this Court consolidated these two cases and issued a rule to show cause against the respondents.

On September 16, 2003, Petitioners Greenbrier County Coalition Against Gambling Expansion and Cabell County Coalition Against Gambling Expansion presented to this Court their petition ("Coalition Petition") praying for a writ of mandamus to be directed against the West Virginia Lottery Commission and Director John Musgrave to, inter alia, compel the cessation of the operation of all video lottery machines and all other lottery games until such time that the games are brought into full compliance with all applicable legal requirements. Finally, on September 22, 2003, the West Virginia Racing Association moved this Court for leave to intervene in the proceedings initiated by Greenbrier County and Cabell County Coalitions Against Gambling Expansion. By order of September 23, 2002, this Court granted the Racing Association's motion for leave to intervene, awarded a rule to show cause, and consolidated all of the petitions for purposes of consideration and decision.³

II. STANDARD OF REVIEW

As noted above, the consolidated cases before us are original mandamus proceedings. It is well-settled that,

[a] writ of mandamus will not issue unless three elements co-exist—(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 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). With this in mind, we now review the several issues before us.

III. DISCUSSION

1. Petition 31540

Constitutionality of W.Va.Code § 29-22-18a(d) (2003)

Petitioners Cities and Counties urge us to find that the Legislature's amendment of the Excess Lottery Revenue Fund statute cured the constitutional infirmities found by this Court in Grant Committee I. In Syllabus Point 2 of Grant Committee I, we held:

Due to the resulting encroachment on the executive power of appointment, the provisions of West Virginia Code § 29-22-18a(d)(3) (Supp.2002) that direct the presiding officers of each house of the Legislature to submit a list of prospective candidates to the Governor for the chief executive's selection of certain members

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