State ex rel. Barker v. Manchin

• Decision Date: 15 June 1981
• Docket Number: No. 14584,14584
• Citation: 167 W.Va. 155,279 S.E.2d 622
• Parties: STATE ex rel. Naaman Jackson BARKER v. A. James MANCHIN, Secretary of State of the State of West Virginia, Respondent, and the Legislative Rule-Making Review Committee, Robert M. Steptoe and William E. Shingleton, Co-Chairmen, Intervenors.
• Court: West Virginia Supreme Court

Page 622

279 S.E.2d 622

167 W.Va. 155

STATE ex rel. Naaman Jackson BARKER v. A. James MANCHIN, Secretary of State of the State of West

Virginia, Respondent, and the Legislative

Rule-Making Review Committee, Robert M.

Steptoe and William E. Shingleton,

Co-Chairmen, Intervenors.

No. 14584.

Supreme Court of Appeals of West Virginia.

June 15, 1981.

Syllabus by the Court

1. Article V, section 1 of the Constitution of West Virginia which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed.

2. While the Legislature has the power to void or to amend administrative rules and regulations, when it exercises that power it must act as a legislature, within the confines of the enactment procedures mandated by our constitution. It cannot invest itself with the power to act as an administrative agency in order to avoid those requirements.

3. W.Va.Code §§ 29A-3-11 and 12 (1980 Replacement Vol.), empowering the Legislative Rule-Making Review Committee to veto rules and regulations otherwise validly promulgated by administrative agencies pursuant to a legislative delegation of rule-making power, violate the separation of powers doctrine embodied in article five, section one of our state constitution and are, therefore, void.

Daniel F. Hedges and David R. Wooley, Charleston, for relator.

Chauncey H. Browning, Atty. Gen., Victor A. Barone, Deputy Atty. Gen., Charleston, for respondent.

McGRAW, Justice:

The relator, Naaman Jackson Barker, a resident and citizen of West Virginia employed as a surface miner in or near Logan County, West Virginia, seeks a writ of mandamus under the original jurisdiction of the Court to compel the respondent, A. James Manchin, Secretary of State of West Virginia, to file in the permanent register of rules certain rules and regulations promulgated by the Director of the Department of Mines governing the safety of persons employed in and around surface mines operated within the state so that they will be in force and effect and can be enforced as contemplated and required by law. The relator contends that the provisions of the West Virginia Administrative Procedures Act, particularly W.Va.Code §§ 29A-3-11 and 29A-3-12 (1980 Replacement Vol.), pursuant to which the rules in question were disapproved by the Legislative Rule-Making Review Committee, are unconstitutional and void and that the respondent, therefore, has a nondiscretionary duty to file the rules and regulations in the permanent register. We conclude that the relator's arguments are meritorious, and we award the writ.

The facts of the case are not in dispute. In 1967 the Legislature, in enacting surface mining and reclamation legislation, provided that the Director of the Department of Mines "shall promulgate reasonable rules and regulations, in accordance with provisions of chapter 29A ... of said Code, to protect the safety of those employed in and around surface mines, and the enforcement of all laws, and rules and regulations relating to the safety of those employed in and around surface mines is hereby vested in the department of mines." W.Va.Code § 20-6-20 (1967). In 1979, before this litigation was commenced, the Legislature amended chapter 20, article 6 of the Code, manifesting the intent that the Department of Natural Resources and the Department of Mines were to cooperate in the promulgation of rules and regulations relating to the mining industry. W.Va.Code § 20-6-1 (1979). In 1980, after the commencement of these proceedings, the Legislature amended the state's surface mining and reclamation laws to reflect its intention that safety in and around surface mining operations be the responsibility of the Department of Mines. ¹ W.Va.Code § 20-6-34 (1980 Cum.Supp.) provides:

"... The director of the department of mines shall promulgate reasonable regulations in accordance with the provisions of chapter twenty-nine-A ( § 29A-1-1 et seq.) of this Code to protect the safety of those employed in and around surface mines. The enforcement of all laws and regulations relating to the safety of those employed in and around surface mines is hereby vested in the department of mines and shall be enforced according to the provisions of chapter twenty-two ( § 22-1-1 et seq.) of this Code."

The Legislature also charged the Department of Mines with certification and training of persons responsible for blasting or the use of explosives in surface mining, W.Va.Code § 20-6-34 (1980 Cum.Supp.), and with promulgating rules and regulations concerning the certification of surface mine foremen. W.Va.Code § 20-6-36 (1980 Cum.Supp.). This brief summary of legislation, before and after the commencement of the pending mandamus proceeding, clearly affirms the position of the relator that the Department of Mines is required by law to promulgate rules and regulations relating to personnel safety in and around surface mining operations.

During this period, the Legislature revised the West Virginia Administrative Procedures Act, Chapter 29A of the West Virginia Code, in an attempt to maximize public participation in administrative rule-making. 1976 W.Va. Acts, ch. 117. See generally Neely, Rights and Responsibilities in Administrative Rule-Making in West Virginia, 79 W.Va.L.Rev. 513 (1977) (hereinafter cited as Neely ). The 1976 amendments did not alter the portion of the Act which provides that lawfully adopted rules and regulations of administrative agencies of the State shall be of no legal force and effect unless they are filed in the permanent register in the office of the Secretary of State, who is responsible under the law for the maintenance of the register and for the reception and official filing of rules and regulations therein. W.Va.Code § 29A-2-1 (1980 Replacement Vol.). As part of the revision, however, a new legislative body was created, the Legislative Rule-Making Review Committee, the constitutional validity of which is at issue here. W.Va.Code § 29A-3-11 (1980 Replacement Vol.). ²

Briefly, section 11 of the Administrative Procedures Act provides that no agency rule or regulation shall become effective until it has been presented to and approved by the Committee. The Committee is composed of six members of the Senate and six members of the House of Delegates, appointed by the President of the Senate and the Speaker of the House of Delegates, respectively, who also act as ex officio non-voting members. The Committee has six months after the presentation of the proposed rule or regulation within which to approve or disapprove, in whole or in part the proposed agency action. If the Committee fails to act on proposed rules and regulations within that time period, it is deemed to have approved all of the proposed regulation. Barring action by the Legislature as a whole, approved regulations become effective after thirty days. Disapproved regulations are invalid and may not be implemented by the agency unless the full Legislature reverses the Committee disapproval.

Under the provisions of W.Va.Code § 29A-3-12 (1980 Replacement Vol.), the Committee is required to submit to the Legislature copies of the rules and regulations it has considered at least thirty days before the end of each regular session. The rules and regulations are referred to the appropriate committees of the Legislature for study. Committee hearings are required to be held on rules and regulations disapproved in whole or in part by the Legislative Rule-Making Review Committee.

(T)he legislature may by concurrent resolution either sustain or reverse, in whole or in part, the action of the legislative rule-making review committee under the provisions of section eleven, except that if the legislature fails during its regular session to sustain by resolution the disapproval of a rule or regulation proposed for the purpose of implementing a federally subsidized or assisted program, such disapproval shall be deemed reversed for purposes of this section and the proposed rule or regulation shall become effective ... (emphasis added). W.Va.Code § 29A-3-12.

The language of this statute implies that the action of the Committee is a recommendation to the Legislature. Theoretically, the Committee's action is only a starting point for review by the full Legislature. However, while the statute contemplates such review, it clearly does not require it. While the Legislature "may" approve or disapprove the Committee recommendation, it is not required to. In only one instance is formal action by the Legislature required in order to validate the Committee action. If the Committee disapproves a rule designed to implement "a federally subsidized or assisted program," then such disapproval must be formally sustained. W.Va.Code § 29A-3-11. In this instance alone, inaction by the full Legislature is "deemed" to reverse the Committee. W.Va.Code § 29A-3-12. Presumably, in all other cases, inaction by the Legislature constitutes tacit approval of the Committee action. Thus, in all areas except federal aid programs, there is no formal requirement for review of the Committee's action. Its decisions stand on their own and serve as a final "veto" of any disapproved rule.

The surface mine safety rules and regulations here in issue were adopted by the Department of Mines and transmitted to the Secretary of State in January of 1979. Notice of opportunity for interested persons to submit data and proposed amendments to the rules and regulations was given and a date for a public hearing was set in compliance with W.Va.Code §§ 29A-3-8 and 9 (1980 Replacement Vol.). When finally adopted with amendments, the rules and regulations were transmitted to the Secretary of State and to the Legislative Rule-Making Review Committee on April 23, 1979. At the Committee's meeting on June 25, 1979, the proposed surface mine safety...