Crain v. Bordenkircher

• Decision Date: 16 June 1989
• Docket Number: No. 16646,16646
• Citation: 382 S.E.2d 68,181 W.Va. 231
• Court: West Virginia Supreme Court
• Parties: Robert Carl CRAIN, et al. v. Donald E. BORDENKIRCHER, Warden, West Virginia Penitentiary, et al.

Page 68

382 S.E.2d 68

181 W.Va. 231

Robert Carl CRAIN, et al. v. Donald E. BORDENKIRCHER, Warden, West Virginia Penitentiary, et al.

No. 16646.

Supreme Court of Appeals of

West Virginia.

June 16, 1989.

Syllabus by the Court

"This Court has a duty to take such actions as are necessary to protect and guard the Constitution of the United States and the Constitution of the State of West Virginia." Syllabus Point 2, Crain v. Bordenkircher, 180 W.Va. 246, 376 S.E.2d 140 (1988).

Schrader, Stamp, Byrd, Byrum & Companion, James F. Companion, William D. Wilmoth, and Barbara L. Baxter, Wheeling, for Robert Carl Crain, et al.

Silas B. Taylor, Atty. General's Office, Charleston, for Donald E. Bordenkircher.

PER CURIAM:

On November 30, 1988, this Court issued a rule in the above-captioned proceeding requiring the respondents ¹ to show cause why we should not place the West Virginia Penitentiary (WVP) at Moundsville in receivership, grant the receiver the power to construct a new facility, and issue a writ of mandamus requiring the State Building Commission to provide financing for the construction of a new facility. The respondents appeared before this Court on May 2, 1989, to respond to the rule to show cause. See Crain v. Bordenkircher, 180 W.Va. 246, 376 S.E.2d 140 (1988) (Crain II ).

This proceeding originated in 1981 when inmates at WVP filed habeas corpus petitions requesting relief from their conditions of confinement, which they alleged constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States and Article III, Section 5 of the West Virginia Constitution. These petitions were consolidated and the Honorable Arthur M. Recht, Judge of the First Judicial Circuit, was appointed by this Court on June 10, 1981, to conduct a hearing on this issue.

After a number of hearings, the circuit court on June 21, 1983, issued an opinion in which it detailed the deplorable conditions at WVP and ruled that, when considered in their totality, the conditions of confinement at WVP were unconstitutional as cruel and unusual punishment. The Department of Corrections was ordered by the circuit court to submit within 180 days a plan to bring the conditions of confinement at WVP within constitutional standards. The circuit court also incorporated a consent decree as part of its final order which provided for the appointment of a special master (now identified as a monitor) to oversee the implementation of the directives of the final decree. The Department of Corrections did not appeal the court's finding that the conditions of confinement at WVP were unconstitutional.

The Honorable John F. Bronson replaced Judge Recht as a presiding judge in this case in the fall of 1983. The Department of Corrections submitted to Judge Bronson a compliance plan which, by an order dated September 1, 1984, was approved. Judge Bronson's order was appealed by the inmates on the ground that certain portions of the Department's compliance plan did not satisfy the requirements of the final order issued by Judge Recht. This Court held in Crain v. Bordenkircher, 176 W.Va. 338, 342 S.E.2d 422 (1986) (Crain I ), that the Department's compliance plan was not adequate to correct the unconstitutional conditions and gave specific reasons as to why this was true. In Crain I, we appointed an acknowledged expert to act as Special Master to approve a revised compliance plan to be submitted by the Department within 120 days. The Department, after obtaining a forty-five day extension, submitted the plan in September, 1986.

Upon a thorough review of the revised compliance plan, the Special Master, Patrick D. McManus, submitted a report to this Court in January, 1988, rejecting the revised compliance plan, and recommended the construction of a new facility to be in use by July 1, 1992. We offered the parties an opportunity to comment on the Special Master's report. Ultimately, the matter was set for hearing on September 13, 1988, before this Court. This hearing became the subject of Crain II, where we stated:

"Although both parties agree that a new facility would correct most of the deficiencies, the Department of Corrections has been unable to act upon the [Special Master's] recommendation. The Department responded that the funds necessary to build the facility were 'not available out of appropriations historically available to the Department, and therefore, such a decision cannot be made at a Department level.' " 180 W.Va. at 247, 376 S.E.2d at 141. (Footnote omitted).

The inability of the Department to comply with the recommendation of the Special Master necessitated this Court's issuance of a rule to show cause in Crain II, supra, with regard to the appointment of a receiver for the construction of a new facility.

In their response to this rule to show cause, the respondents now submit that this Court should not appoint a receiver for the construction of a new penitentiary because the Governor and the Legislature believe that they will be able to replace the current facility by the Court's July 1, 1992 deadline. A great deal of emphasis is placed on the recently enacted Senate Bill 389 relating to the West Virginia Regional Jail and Correctional Facility Authority, which is basically a recodification of the provisions of W.Va.Code, 31-20-1, et seq. (1985). ² In the last paragraph of W.Va.Code, 31-20-5 (1989), there is language which requires the regional authority to submit by November 1, 1989, a "plan to the joint committee on government and finance of the Legislature detailing the means by which the authority will comply with the mandates of the Supreme Court of Appeals as to the structural and internal conditions and programs of the correctional facilities in this state." ³

As commendable as this legislation may be, we must observe that the Court's mandate does not run to the regional jail authority, as it is not a party to this litigation. Over three years have passed since we issued our opinion in Crain I, and some six years have elapsed since the final order of Judge Recht which declared the penitentiary conditions to be unconstitutional. This finding of unconstitutionality was never challenged by the State...