STATE EX REL. v. Tomblin

• Decision Date: 26 March 2001
• Docket Number: No. 27905.,27905.
• Citation: 209 W.Va. 565,550 S.E.2d 355
• Parties: STATE of West Virginia ex rel. The LEAGUE OF WOMEN VOTERS OF WEST VIRGINIA; American Civil Liberties Union of West Virginia; West Virginia Citizen Action Group; West Virginia Education Association; Common Cause of West Virginia; and Delegate Arley R. Johnson, A Member of the West Virginia House of Delegates, Petitioners, v. Earl Ray TOMBLIN, President of the West Virginia Senate; and Robert S. Kiss, Speaker of the West Virginia House of Delegates, and the Office of Governor of the State of West Virginia, Respondents.
• Court: West Virginia Supreme Court

550 S.E.2d 355

209 W.Va. 565

STATE of West Virginia ex rel. The LEAGUE OF WOMEN VOTERS OF WEST VIRGINIA; American Civil Liberties Union of West Virginia; West Virginia Citizen Action Group; West Virginia Education Association; Common Cause of West Virginia; and Delegate Arley R. Johnson, A Member of the West Virginia House of Delegates, Petitioners, v. Earl Ray TOMBLIN, President of the West Virginia Senate; and Robert S. Kiss, Speaker of the West Virginia House of Delegates, and the Office of Governor of the State of West Virginia, Respondents.

No. 27905.

Supreme Court of Appeals of West Virginia.

Re-Submitted February 7, 2001.

Decided March 26, 2001.

Margaret L. Workman, Esq., Kathy A. Brown, Law Student, Margaret Workman Law, L.C., Charleston, for the Petitioners.

M.E. "Mike" Mowery, Esq., Mark W. McOwen, Esq., Marsha K. Morris, Esq., West Virginia House of Delegates, Charleston, for the Respondent, Speaker of the West Virginia House of Delegates, Robert S. Kiss.

Jennifer Bailey Walker, Esq., West Virginia Senate, Michael R. Crane, Esq., Forman & Crane, Charleston, for the Respondent, President of the West Virginia Senate, Earl Ray Tomblin.

Benjamin L. Bailey, Esq., Brian A. Glasser, Esq., Thomas F. Basile, Esq., Bailey & Glasser LLP, John F. McCuskey, Esq., Shuman, McCuskey & Slicer, PLLC, Charleston, for the Respondent, Office of the Governor. ALBRIGHT, Justice:

This matter comes to us upon a petition for a writ of mandamus¹ filed on behalf of several prominent public interest groups² and a former member of the Legislature³ against the presiding officers of the House of Delegates and state Senate and "the office of the Governor"⁴ (hereinafter collectively referred to as "Petitioners"). Petitioners argue that the practices currently employed by the Legislature in preparing the "budget digest" mandated by West Virginia Code § 4-1-18 (1969) (Repl.Vol.1999) are in violation of the Modern Budget Amendment,⁵ the constitutional provision regarding separation of powers,⁶ and this Court's directives in Common Cause v. Tomblin, 186 W.Va. 537, 413 S.E.2d 358 (1991). Petitioners assert additionally that the Legislature is unlawfully accomplishing the transfer to the governor's civil contingent fund⁷ of appropriations initially made to the House of Delegates. As relief from these asserted violations, Petitioners seek a writ of mandamus finding these practices unconstitutional; directing the Legislature to forthwith cease and desist from designating funds in violation of both constitutional and statutory mandates; and directing the Legislature to restore all deletions of lawfully appropriated funds.⁸ Upon our careful review of the arguments⁹ raised against the record submitted, we grant a writ of mandamus as moulded.

I. Standard of Review

Our standard of review for issuing writs of mandamus is well-established:

"A writ of mandamus will not issue unless three elements coexist—(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." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

Syl. Pt. 10, State ex rel. Marockie v. Wagoner, 191 W.Va. 458, 446 S.E.2d 680 (1994).

II. Discussion

A. The Budget Process

By law, the state's annual budget must be accomplished pursuant to the provisions found in section 51, article VI of the constitution, known as "The Modern Budget Amendment." Since its ratification on November 5, 1968, the Modern Budget Amendment has required adherence to a budget process that begins with the governor's delivery, to the presiding officer of each house, of (1) the budget and (2) a bill enumerating the proposed appropriations of the budget [the "budget bill"], clearly itemized and classified, in such form and detail as the governor shall determine or as may be prescribed by law. Section 51 further prescribes that the "budget" shall contain a complete plan of proposed expenditures and estimated revenues, an itemized estimate of the appropriations, in such form and detail as the governor shall determine, or as is prescribed by law, and requires that the budget be accompanied with certain other information relative to the financial condition of the state. Under section 51, no money may be appropriated from the state treasury except by means of a "budget bill" or by a "supplementary appropriation bill." W.Va. const. art. VI, § 51. The Modern Budget Amendment expressly provides that no money shall be expended from the treasury "except in accordance with [the] provisions of this section." Id.

As a part of initial legislation implementing the Modern Budget Amendment,¹⁰ the Legislature amended and reenacted West Virginia Code § 4-1-18,¹¹ which provides as follows:

The Legislature, acting by its appropriate committees, shall consider the budget bill, the budget document and matters relating thereto, and following such consideration and upon the passage of the budget bill by the Legislature, the Legislature shall 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. Such digest or summary shall be prepared at the direction of and approved by members of the conferees committee on the budget and shall be included in the journals of the Legislature or printed as a separate document, and copies shall be furnished to the governor, commissioner of finance and administration [abolished], and the various state spending units for such use as may be deemed proper.

W.Va.Code § 4-1-18 (emphasis supplied).

While we outlined in Common Cause the process by which the governor's initial submission of the budget bill and budget document to the Legislature progresses to the passage of the budget bill, we find it necessary to expand on that previous discussion. 186 W.Va. at 540-41, 413 S.E.2d at 361-62. Typically, the governor proposes, and the Legislature agrees, to appropriate money in the budget bill to a particular office, officer, or agency under relatively broad categories or "line items," such as "personal services," "unclassified," "administration," and other somewhat more specific, but still generalized, descriptions. As referenced in the statute requiring preparation of a budget digest, West Virginia Code § 4-1-18, as well as the rules of each of the two houses of the Legislature,¹² the budget bill is referred to the appropriate committee in each house, typically the finance committee.

As with any proposed legislation, the detailed examination of such proposal is ordinarily done in committee with the aid of a committee's staff. In the case of the "budget bill," this detailed examination proceeds from the information included in the "budget document" and the legislative hearings held in connection with each respective account set forth in the budget. With laborious and careful detail, the legislative finance committees examine the requests for the next year's appropriations. Each office, officer, and agency justifies to the legislature its respective requests. Similarly, the governor justifies his recommendations as to each of the hundreds of appropriation line items set forth in the "budget bill." The excruciating detail with which the state's annual spending plan is presented in the "budget document" and examined by the relevant legislative committees and their staffs¹³ and the hours upon hours devoted to this task by legislators and interested citizens is not at all apparent from simply reading through the "budget bill."

As a result of this finance committee review, each respective house may make amendments to the budget bill and may develop recommendations or provisions that will later be found in the budget digest.¹⁴ At the end of the committee consideration of the budget bill and the budget document, it is the "budget bill," not the "budget document," that comes back to the entire Senate or the entire House of Delegates for consideration, with whatever changes the respective house's finance committee has made. The "budget bill," is the document upon which the Legislature, as a whole, votes.¹⁵ After each house of the Legislature has passed its version of the "budget bill," the bill goes to conference, to the "conferees committee on the budget" to resolve differences between the two versions prepared by each legislative house and also to make such other changes in the "budget bill," as may be necessary in light of other actions taken by the Executive or Legislature subsequent to the passage of the "budget bill" by one house.¹⁶ Only when the conferees committee on the budget has finally settled on a single bill that has been voted upon in identical form by both houses of the Legislature is the budget bill ready for presentation to the governor.¹⁷

From the above discussion, it is clear that three budgetary documents are central to the case before us: (1) the budget bill, (2) the budget, which is sometimes called "the budget document;" and (3) the budget digest. From the record submitted in this case, we note the following.

(1) The budget bill in its original form as submitted by the governor in January 1999, for fiscal year 1999-2000, consisted of about 122 double-spaced pages, 8½ by 11 inches.

(2) The budget for fiscal year 1999-2000, as submitted by the governor, with its supplemental information, collectively called the "budget document," consisted of three volumes; two of which were approximately 8½ by 11 inches, and one of which was 11 by 17 inches. Whereas the first and second volumes were 340 and 678 pages long, respectively, the third volume contained over 490 pages, mostly in small type, and delineated information setting forth prior years' expenditures, the current year's appropriations,

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