Common Cause of West Virginia v. Tomblin

• Decision Date: 14 January 1992
• Docket Number: No. 20325,20325
• Court: West Virginia Supreme Court
• Parties: COMMON CAUSE OF W.VA., et al., v. Earl Ray TOMBLIN, et al.

Page 358

413 S.E.2d 358

186 W.Va. 537

COMMON CAUSE OF W.VA., et al., v. Earl Ray TOMBLIN, et al.

No. 20325.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 11, 1991.

Decided Dec. 9, 1991.

Dissenting Opinion of Justice Miller Jan. 14, 1992.

Syllabus by the Court

1. W.Va.Code, 4-1-18 [1969], which directs the Conferees Committee on the Budget to prepare a digest summary of the budget bill containing detailed information similar to that included in the budget document submitted to the legislature by the governor, is not unconstitutional as a delegation of power by the whole legislature to a committee of the legislature because the digest summary in question does not have the force and effect of law.

2. Although the Legislative Budget Digest prepared by the Conferees Committee on the Budget does not have the force and effect of law, it is a legitimate part of the ongoing dialogue between the legislative branch and executive branch concerning the allocation of state funds; consequently, the integrity of the process by which the Digest is prepared is of sufficient importance to be legally protected.

3. The Budget Digest must be approved by the entire Conferees Committee on the Budget at a regular meeting scheduled in the normal course of business and open to the public.

4. In order that officers in the executive branch not be confused concerning the nature of the Budget Digest, the Budget Digest must be clearly marked with a notice that the document has been prepared by the Conferees Committee on the Budget and that the Budget Digest does not have the force and effect of law.

5. In order for the Budget Digest to conform to the requirement of W.Va.Code, 4-1-18 [1969], which directs the Conferees Committee on the Budget to prepare a "digest or summary" of the budget, the finance committees, their chairmen, or the subcommittee chairmen must have memoranda of the negotiations, compromises and agreements or audio recordings of committee or subcommittee meetings where votes were taken or discussions had that substantiate the material which is organized and memorialized in the Budget Digest.

Mike Kelly, Fred D. Clark, Law Offices of Fred D. Clark, L.C., Charleston, for petitioners.

M.E. Mowery, Alison Patient, Debra Graham, Charleston, for respondents.

NEELY, Justice.

W.Va.Code, 4-1-18 [1969], directs the legislature to "prepare a digest or summary of the budget bill containing detailed information similar to that included in the budget document submitted to the Legislature by the governor but including amendments of legislative committees, and as finally enacted by the Legislature." ¹

On 17 March 1991 the West Virginia Legislature enacted into law Enrolled Committee Substitute for House Bill 2040, which was the budget bill of the State of West Virginia for fiscal year 1992. The budget bill was enacted pursuant to the procedures set forth in W.Va. Const., art. VI, § 51, known as the "Modern Budget Amendment." After the budget bill was adopted, Chairman Tomblin of the Senate Finance Committee and Chairman Murensky of the House Finance Committee, in their capacities as Senate and House Finance Committee Chairmen, respectively, and as Chairmen of the Conferees Committee on the Budget, met to prepare a digest of the enrolled budget bill as required by W.Va.Code, 4-1-18 [1969].

The petitioners assert that they did not know, and have not been able to discover, the date, time or place of the meeting at which the respondent finance committee chairmen prepared the Digest of the Enrolled Budget Bill [hereafter Budget Digest ] and have not been able to discover who was present.

Although the petitioners have numerous specific allegations, their primary complaint is that the respondent committee chairmen ² caused a document known as the "Budget Digest to be prepared and disseminated pursuant to the authority of Code, 4-1-18 [1969] which differs significantly from the actual budget bill as passed by the Legislature." Petitioners assert that no formal meeting was held by the members of the Conferees Committee on the Budget and that if such a meeting was held, it did not meet the requirements of the Open Governmental Proceedings Act, W.Va.Code, 6-9A-1 et seq. [1975].

In support of their contention that the Budget Digest is not a faithful summary of the budget bill, the petitioners point to three specific examples:

(a) Approximately $11,500,000 is designated for particular events or projects that are not listed in the budget bill itself, and the funding for which was not specifically approved by the legislature or presented to the Governor for his approval or disapproval; See, e.g., Budget Digest at 26-28, Acct. No. 5150; Budget Digest at 42-44, Acct. No. 1210; Budget Digest at 59-61, Acct. No. 2860; and Budget Digest at 82-85, Acct. No. 3510.

(b) The executive branch is directed to use appropriations for the Area Agencies on Aging to fund only four out of the current six functioning area agencies despite the absence of such language in the budget bill and previous directions from the West Virginia Supreme Court of Appeals against the inclusion of general legislation in appropriation matters; See Budget Digest at 92, Acct. No. 4060.

(c) The executive branch is directed to undertake various projects at unspecified cost, such as "explore the possibility of purchasing the Danville-Madison Nursing Center," (Budget Digest at 156-57, Acct. No. 8855) "complete a detailed feasibility study of the road system needs in southern West Virginia," and expend "the necessary funds ... for the operation of the new information/visitor center at the intersection of I-77/460 near Princeton." Budget Digest at 189, Acct. No. 6700.

I.

The theory of petitioners' case is grounded in two landmark constitutional decisions Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981) and Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Our own Barker case involved the constitutionality of one legislative committee's power to veto rules and regulations promulgated by administrative agencies pursuant to general statutory authority. We held in Barker that sections of the Administrative Procedure Act that empower a legislative rule-making review committee to veto rules and regulations otherwise validly promulgated by administrative agencies pursuant to legislative delegation of rule-making power violates the separation of powers doctrine.

In Chadha, the Supreme Court of the United States held that a provision in the Immigration and Nationality Act which authorized either House of Congress, by resolution, to invalidate a decision of the executive branch permitting deportable aliens to remain in the United States, was unconstitutional because it delegated law-making power to one House of Congress in contravention of U.S. Const., Art. I, § 1 (which requires all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives) and U.S. Const., Art. I, § 7 (which requires every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be passed by two-thirds of the Senate and House).

Consequently, if the Budget Digest --prepared as it is by the budget conferees--had the force and effect of law, this entire case would be easily decided in petitioners' favor by reference to Barker, supra and Chadha, supra. However, notwithstanding the deference that the Budget Digest receives from executive branch administrators, and further notwithstanding the natural reluctance that administrators have to thwart the will of powerful legislative committee chairmen, the Budget Digest does not have the force and effect of law or anything close to it. Indeed, although we have looked to the Budget Digest to help us ascertain the intent of the legislature in making specific appropriations, Jones v. Rockefeller, 172 W.Va. 30, 303 S.E.2d 668 (1983), we have also clearly recognized that the Budget Digest does not serve to alter or amend the enacted budget bill. Heckler v. McCuskey, 179 W.Va. 129, 365 S.E.2d 793 (1987).

In deciding this case, it must be reality, not theory, that is the interpretive principle. The budget-making process is, perhaps, the central undertaking of state government and important parts of that process go on when the legislature is not in session. Under the provisions of W.Va. Const., art. VI, § 51, the Governor is required to present to the legislature his proposed budget for the ensuing fiscal year. In order to assist the Governor in this undertaking, every agency of state government is required to submit its proposed (or requested) budget to the Secretary of Finance and Administration. W.Va.Code, 5A-2-3 [1990]. The Secretary of Finance and Administration, the Governor's staff, and the Governor himself then attempt the nearly impossible task of allocating severely limited money among competing ends. Inevitably, few, if any, agencies of state government are lucky enough to have the Governor request from the legislature an appropriation as large as their own request to the Governor.

When the legislature convenes in January (or February every fourth year) the Governor presents his "budget document" to the legislature at the same time that he delivers his State of the State address. The Governor's "budget document" is an elaborate presentation, in the form of detailed line items, of what the Governor intends to do with money that is appropriated to the executive branch for the ensuing fiscal year. However, this "budget document" submitted to the legislature should not be confused with the Governor's proposed "budget bill," which is a document that appropriates large amounts of money to agencies of state government according to broad, general categories.

Because the Department of Health and Human Services is one of the largest agencies of state government, we choose it as an example of what the...