W. Va. Dep't & Health & Human Res. v. E.H., 14-0664
Decision Date | 08 October 2015 |
Docket Number | No. 14-0845,No. 14-0664,14-0664,14-0845 |
Court | West Virginia Supreme Court |
Parties | West Virginia Department and Health and Human Resources v. E.H., et al. |
I need to be perfectly clear at the outset. The majority opinion in this case is a classic example of unconstitutional judicial interference with the exclusive authority of the legislative and executive branches of government. In this case, the circuit court overstepped its judicial jurisdiction and dictated to the legislative and executive branches of government how to "increase hospital pay by unspecified but substantial market amounts and to simultaneously restructure hospital worker salaries and job classification rates." The majority opinion has affirmed the lower court's imposition of these unprecedented pay raises and management policies, purportedly because the DHHR previously had agreed to these extraordinary remedies. Obviously, had the DHHR agreed to such remedies, it would not now be complaining about the imposition of the remedies by the judicial branch of government. I refuse to violate my oath of office by joining a majority decision that contravenes our State Constitution. Therefore, I must, for the reasons set out below, strongly dissent from the majority's decision.
The facts of this case show that the DHHR had agreed, in a mediation proceeding in 2009, (1) to provide for increased pay for certain healthcare workers at State psychiatric hospitals and (2) to generally use only full time employees working regular shifts or voluntary overtime. In response to this agreement, the DHHR did the following:
For each worker category deemed below market rates, DHHR, in conjunction with the West Virginia Legislature and the West Virginia Division of Personnel, . . . provided recruitment and retention incentives by providing 3% raises. . . . The Department likewise undertook various efforts to recruit and retain permanent direct care workers so that the hospitals can reduce overtime and lessen the number of temporary and contract staff.
(Internal quotations omitted).
In 2014, the plaintiffs returned to the circuit court and argued that the DHHR was not in compliance with the 2009 agreement because overtime work had not been reduced, and the pay for workers was insufficient. The circuit court agreed with the plaintiffs and, as was explained in the DHHR's brief, took the following unprecedented steps:
The State Constitution of West Virginia prohibits the judiciary from acting as a superlegislature. We recognized in State ex rel. County Court of Marion County v. Demus, 148 W. Va. 398, 401, 135 S.E.2d 352, 355 (1964), that "the courts of this state are forbidden by [the State Constitution] to exercise legislative authority of any kind." Specifically, Article V, § 1, of the Constitution of this State provides, in relevant part:
The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others.
See Syl. pt. 2, Appalachian Power Co. v. Public Serv. Comm'n of West Virginia, 170 W. Va. 757, 296 S.E.2d 887 (1982) ().
We noted in the early decision of State v. Buchanan that 24 W. Va. 362, 379 (1884). We have made clear that "[i]t is not the province of the courts to make or supervise legislation[.]" Subcarrier Commc'ns, Inc. v. Nield, 218 W.Va. 292, 299 n.10, 624 S.E.2d 729, 736 n.10 (2005) (Internal quotations and citations omitted). This Court also has recognized that "administrative agencies, [like the DHHR], are active players in the division of powers, and, while always subject to properly enacted and valid laws and to constitutional constraints, their actions are entitled to respect from . . . the courts." Frymier-Halloran v. Paige, 193 W. Va. 687, 694, 458 S.E.2d 780, 787 (1995). Such deference to administrative agencies is necessary because "[t]he courts of this state are by [Article V, § 1 of the Constitution] forbidden to perform administrative duties." State ex rel. Cnty. Court of Marion Cnty. v. Demus, 148 W. Va. 398, 401, 135 S.E.2d 352, 355 (1964). Recognizing the grave impact of improper superlegislating by this Court, it was said in Buchanan that if this Buchanan, 24 W. Va. at 379.
In the instant case, it is clear that the issues of hospital employee wages and overtime management are legislative and executive policy matters. However, "the majority has decided to act as a superlegislature and impose a different policy based upon nothing more than judicial whim." Hammons v. West Virginia Office of Ins. Comm'r, Nos. 12-1473 & 13-0312, 2015 WL 3386875, at *24 (W. Va. May 20, 2015) (Loughry, J., dissenting).Further, "[t]he principles of judicial conservatism require us to give effect to the wisdom and consideration of our sister branches of government-the branches designed to make public policy-and not to bestow upon ourselves the role of superlegislature simply because we do not believe they went far enough." Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cnty., 235 W. Va. 283, ___. 773 S.E.2d 627, 642 (2015) (Benjamin, J., concurring). See also Syl. pt., 1, in part, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965) () .
In its initial decision of this ongoing case, this Court expressly noted that "it can be reasonably inferred that the Legislature will cooperate with the West Virginia Department of Health and the Circuit Court of Kanawha County in implementing an appropriate plan [.]" E. H. v. Matin, 168 W. Va. 248, 260, 284 S.E.2d 232, 238 (1981). However, in the instant proceeding, the circuit court expressly stated that it did not want input from the Legislature in creating or implementing said plan.1 The majority opinion has agreed with the circuit court to remove the Legislature from the equation, and to dictate to an executive agency a judicial plan for paying hospital workers and managing staff overtimeissues. In the final analysis, under the circuit court's ruling and the majority opinion, the courts of West Virginia now have authority to mandate the budget and overtime requirements for any government agency in this State. This is the chilling, but practical, effect of the majority's decision to sit as a superlegislature.
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