Common Cause of W.Va. v. Tomblin , 186 W. Va. 537 ( 1992 )

413 S.E.2d 358 (1991)

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

No. 20325.

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1991. Decided December 9, 1991. Dissenting Opinion of Justice Miller January 14, 1992.

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 1-77/460 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 respective documents discussed in this opinion look like. Appendix A is the detailed proposed spending plan for the Department of Health and Human Services for the fiscal year 1991-92 as submitted to the legislature in the Governor's budget document. Appendix B is the actual budget bill as enacted by the legislature relating to appropriations to the Department of Health and Human Services. Appendix C is the part of the Budget Digest, as prepared by the Finance Committee Chairmen, summarizing the purposes to which legislative budget-makers (whoever they may be) believe the money appropriated to Health and Human Services should be put.

After the Governor has submitted his "budget document" and budget bill to the legislature, and the budget bill has been introduced in the House of Delegates, the respective Finance Committees of the Senate and House hold hearings on the budget.^[3] The hearings that the Senate and House Finance Committees hold are one way of allowing legislators to oversee administrative agencies and to make those agencies aware of legislative concerns. Those sessions, however, tend to be rather formal and not to be the best forum for negotiation, accommodation, and compromise. The nitty-gritty of the budget-making process usually transpires in sub-committee meetings, and in private meetings between constituents and the finance committee chairman or sub-committee chairmen. Furthermore, in this whole process it would be unrealistic not to acknowledge the central role played by knowledgeable, dedicated and extremely high quality committee staff.^[4]

The long and the short of all this is that various compromises and agreements emerge from myriad negotiations, and it is those negotiations and compromises that are, at least theoretically, summarized in the Budget Digest. Nonetheless, the agency heads are not bound in law to follow the dictates of the Budget Digest. Yet, it should be obvious that if a legislator importuned a Finance Chairman to insert extra money into the Department of Highways' budget to build an information/visitor's center at the junction of I-77/460, it would be shortsighted not to build such a center, everything else being equal. But that is not as unreasonable a proposition as it might at first appear because, after all, other things often are not equal. Should, for example, a rock slide suddenly cause a quarter of a mile of important highway to be impassable, requiring millions of unexpected dollars to repair the damage, the money that the legislature would have liked to have seen spent on an information/visitors' center could be reallocated for interstate highway repair.

This brings us, then, to petitioners' argument that all of the specific allocations of money summarized in the Budget Digest should be set forth in detail in the budget bill and voted on by the legislature. Unfortunately, although that proposition appears to vindicate pristine democratic theory, it is of limited practical use because carving everything into the stone of the budget bill would perpetrate an evil even greater than the evil petitioners seek to redress. Indeed, establishing detailed line item budgets would create a complete lack of flexibility. Under the system urged by petitioners, the powerful legislator who managed to get a Finance Chairman to include funding for his information/visitors' center in the budget bill would have that money locked in and available for no other purpose, thus making it extraordinarily difficult for the Department of Highways to repair my hypothetical quarter-mile of highway destroyed by the rock slide.

II.

The petitioners allege and the respondents do not deny that the Budget Digest is prepared by the Finance Committee Chairmen with the help of full-time staff and published without being considered by all the budget conferees. At a bare minimum, the Court finds that this procedure offends the clear wording of W.Va.Code, 4-1-18 [1969]. Obviously if the two Finance Chairmen got together over dinner, prepared a summary of how they expected state agencies to spend money, and then memorialized their discussion on the back of a menu, state agencies would give such a document great deference because "next year" is always on the horizon. Nonetheless, the Budget Digest is a sufficiently formal document that executive branch employees feel peculiarly bound to follow its dictates. This being the case, the Court holds today that any document purportedly issued pursuant to W.Va.Code, 4-1-18 [1969], must be approved by majority vote of a quorum of all the budget conferees pursuant to a meeting regularly called after the passage of the budget bill.

It is only fair to state agencies and affected constituencies to provide some protection against inclusion in the Budget Digest of language not faithfully reflecting the various agreements and compromises that occurred during the legislative session. Thus, all of the specific provisions of the Budget Digest, except those that simply restate provisions of the Budget Bill, should be supported by memoranda of the negotiations, compromises and agreements or audio recordings of committee or sub-committee meetings where votes were taken or discussions had that substantiate the material which is organized and memorialized in the Budget Digest.

Because of the potential for abuse inherent in a statutorily mandated document like the Budget Digest, the Court finds W.Va. Code, 4-1-18 [1969] is right on the cusp of those delegations of authority permitted by Barker, supra, and Chadha, supra. Nonetheless, we believe that with appropriate procedural protections, the use of the Budget Digest is preferable to available alternatives. In this regard, Mr. Justice White's observations in his dissenting opinion in Chadha reflect reasoning that we have found compelling.

The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with the hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the Executive Branch and independent agencies. To choose the former leaves major national problems unresolved;

to opt for the latter risks unaccountable policymaking by those not elected to fill that role.

462 U.S. at 967-68, 103 S. Ct. at 2792-93.

If the whole budget-making process is visualized as an ongoing negotiation, then the Budget Digest (properly supported by files or audio recordings reflecting the decisions and compromises made) is a valuable contribution to Mr. Justice White's "accountability of executive and independent agencies." It is only when the Budget Digest is perceived as an adjunct to the budget bill enjoying legal force and effect that this process confounds Barker and Chadha.

The way to reconcile all of the competing considerations we have discussed, then, is to make sure that the Budget Digest does not confound principles of Barker and Chadha in practice, and the way to do that is to require an appropriate disclaimer. Consequently, although we do not find W.Va.Code, 4-1-18 [1969], either unconstitutional on its face or unconstitutionally applied in the type of document currently promulgated pursuant to its authority, we do find that the Budget Digest must have an adequate disclaimer. All legislative budget digests should clearly state that the Budget Digest is a summary of what the members of the Conferees Committee on the Budget believe the legislature's intent to be, but that the Budget Digest does not have the force and effect of law and in no way circumscribes the discretion of spending units. Thus spending units may allocate money appropriated to them under the broad line items of the budget bill without regard to the suggestions of the Budget Digest when, in their discretion, such action is appropriate.

Accordingly, the relief for which the petitioners pray is granted in part and denied in part. We hold today that: (1) the Budget Digest does not have the force and effect of law and the Budget Digest must clearly so state; (2) W.Va.Code, 4-1-18 [1969] contemplates preparation of the Budget Digest by the entire Conferees Committee on the Budget (or a quorum thereof) which must meet and approve the Budget Digest before it may be published pursuant to the authority of W.Va. Code, 4-1-18 [1969]; and (3) nothing may be published in the Budget Digest that does not reflect committee or sub-committee votes, actual negotiations, compromises, and decisions of the legislative committees, sub-committees, or chairmen, and the files of the committees or their chairmen must be maintained, open to public inspection, supporting the specific provisions of the Budget Digest.

The respondents argue that once the legislature adjourns, the Conferees Committee on the Budget ceases to exist as such and, therefore, it is not possible once the budget bill has been passed to reconvene the Conferees Committee on the Budget for the purpose of considering and voting on the Budget Digest. We find, however, that W.Va.Code, 4-1-18 [1969] specifically extends the life of the Conferees Committee on the Budget past the adjournment date of the legislature until that committee has fulfilled its statutory duties by considering and voting on the Budget Digest.

The Court finds that the petitioners brought this case for the purpose of establishing appropriate guidelines for the adoption, promulgation and use of the Budget Digest in the future and, because the Budget Digest has already been printed for the 1991-92 fiscal year, no specific action need be taken with regard to the Budget Digest for the 1991-92 fiscal year.

For the reasons stated above, the writ of mandamus for which petitioner prays, as moulded, is awarded.

Writ as moulded, awarded.

APPENDIX B
NO. 20325
COMMON CAUSE OF W.VA., ET AL.
V.
EARL RAY TOMBLIN, ET AL.
2   Any unexpended balance remaining in the appropriation
3   for unclassified (account no. 5332-23) at the close
4   of the fiscal year 1990-91 is hereby reappropriated for
5   expenditure during the fiscal year 1991-92.
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
63 — Division of Health —
Central Office
(WV Code Chapter 16)
Acct. No. 4000
1   Total Personal Services .........$     —        $  5,416,820
2   Corporate Nonprofit
3     Community Health
4     Centers — F.M.H.A.
5     Mortgage Finance                     —             105,913
6   Appalachian States Low Level
7     Radioactive Waste
8     Commission                           —              58,300
9   Unclassified                           —           5,793,794
___________       ____________
10
Total.........................$      —          $ 11,374,827
64 — Division of Human Services
(WV Code Chapters 9, 48 and 49)
Acct. No. 4050
1   Total Personal Services ........$      —        $ 14,781,120
2   OSCAR and FAMIS                      6,383,139           1,105,693
3   Medical Services                       —         111,344,356
4   Unclassified                       519,641,258          79,930,473
5   Family Law Masters                     —             789,165
6   Women's Commission                     —              53,505
7   Commission on
8     Hearing Impaired                     —              43,000
____________       ____________
9     Total.........................$  526,024,397       $ 208,047,312
10    No funds from this account, or any other department
11  of health and human resources account, shall be
12  used to pay family law master salaries or expenses in
13  excess of the Family Law Masters line item appropriation.
14  It is anticipated that the family law master
15  program will generate sufficient revenue from fees
16  and federal child support funds to cover the remainder
17  of its program costs.

65 — Commission on Aging
(WV Code Chapter 29)
Acct. No. 4060
1   Total Personal Services.........$     —        $   112,386
2   Local Programs
3     Service Delivery Costs              —          2,160,426
4   Unclassified                       10,925,500          1,005,304
___________       ____________
5     Total.........................$  10,925,500        $ 3,278,116
66 — Consolidated Medical Service Fund
Acct. No. 4190
1   Foster Grandparents
2     Stipends/Travel...............$     —        $    62,000
3   Institutional Facilities
4     Operations                          —         42,010,316
5   Poison Control Hotline                —            250,000
6   Special Olympics                      —             28,000
7   State Aid to Local Agencies           —          7,200,000
8   Maternal and Child Health
9     Clinics, Clinicians and
10    Medical Contracts and Fees          —          5,215,670
11  Preventive Re-Vaccination             —            200,000
12  Primary Care Contracts to
13    Community Health Centers            —          2,800,000
14  Epidemiology Research                 —            250,000
15  Grants to Counties and
16    EMS Entities                        —          1,725,000
17  Behavioral Health Program             —         35,318,202
18  Unclassified                       28,230,761         15,589,369
__________       ____________
19    Total.........................$  28,230,761      $ 110,648,557
20    The director of health, prior to the beginning of the
21  fiscal year, shall file with the legislative auditor an
22  expenditure schedule for each formerly separate
23  spending unit which has been consolidated into the
24  above account and which receives a portion of the
25  above appropriation. He shall also, within fifteen days
26  after the close of the six-month period of said fiscal
27  year, file with the legislative auditor an itemized
28  report of expenditures made during the preceding sixmonth
29  period.
30    Additional funds have been appropriated in account
31  no. 8500 for operation of the medical facilities.
67 — Department of Health and Human Resources —
Office of the Secretary
(WV Code Chapter 5F)
Acct. No. 5343
1   Unclassified — Total...........$     —      $ 181,619
68 — Human Rights Commission
(WV Code Chapter 5)
Acct. No. 5980
1      Total Personal Services...........$     —      $ 373,455

2   Unclassified                               102,190        283,084
_________     _________
3      Total.............................$     102,190      $ 656,539
DEPARTMENT OF PUBLIC SAFETY
69 — Office of Emergency Services and Advisory Council —
Division of Emergency Services
(WV Code Chapter 15)
Acct. No. 1300
1   Total Personal Services..............$    —       $ 167,070
2   Unclassified                            2,759,426          85,801
_________         _______
3     Total .............................$  2,759,426       $ 252,871
70 — Board of Probation and Parole
(WV Code Chapter 62)
Acct. No. 3650
1   Salaries of Members of Board
2   of Probation and Parole..............$     —         $ 84,900
3   Total Personal Services                    —           51,566
APPENDIX C
NO. 20325
COMMON CAUSE OF W.VA., ET AL.
V.
EARL RAY TOMBLIN, ET AL.
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
63 — Division of Health —
Central Office
(WV Code Chapter 16)
Acct. No. 4000
Total Personal Services....................................$     —      $        -0-
Personal Services                                                —         5,331,820
Annual Increment                                                 —            85,000
Employee Benefit                                                 —         1,793,178
Corporate Nonprofit Community Health Centers — F.M.H.A.
Mortgage Finance                                               —           137,269
Appalachian States Low Level Radioactive Waste Commission        —            58,300
Hemophilia Program                                               —            27,689
Unclassified                                                     —         3,972,927
__________      ___________
Total......................................................$     —      $ 11,406,183

LEGISLATIVE INTENT From the "Corporate Nonprofit Community Health Centers-F.M.H.A. Mortgage Finance" line item above, it is the intent of the Legislature the $14,814 be expended for the farmers' home administration annual payment for the Camden-on-Gauley medical center; $47,916 be expended for the farmers' home administration annual payment for Community Aid Inc.; $34,471 be expended for the farmers' home administration annual payment for the E.A. Hawse health center; $8,712 be expended for the farmers' home administration annual payment for the Bluestone health center; and, $31,356 be expended for the farmers' home administration annual payment for the Lincoln Primary Care Center, Inc.

64 — Division of Human Services
(WV Code Chapters 9, 48 and 49)
Acct. No. 4050
Total Personal Services.....................$     —      $         -0-
Personal Services                                 —         14,866,432
Annual Increment                                  —            326,002
Employee Benefits                                 —          5,743,772
OSCAR and FAMIS                                 6,383,139          1,105,693
Medical Services                              386,600,590        111,344,356
Family Law Masters                                —            827,165
Women's Commission                                —             53,505
Commission on Hearing Impaired                    —             43,000
Public Assistance                             108,781,610         24,544,637
Emergency Assistance                           15,350,000          1,410,216
Social Services                                   —         28,437,862
Family Preservation Program                       —          1,500,000
JOBS Program                                    8,909,058          4,329,058
Unclassified                                      —         13,553,614
___________     _______________
Total.......................................$ 526,024,397      $ 208,085,312

No funds from this account, or any other department of health and human resources account, shall be used to pay family law master salaries or expenses in excess of the Family Law Masters line item appropriation. It is anticipated that the family law master program will generate sufficient revenue from fees and federal child support funds to cover the remainder of its program costs. None of the funds from this account shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term. The secretary of the department of health and human resources shall have the authority to transfer funds within the above account: Provided, That no more than ten per cent of the funds appropriated to one line may be transferred to other lines: Provided, however, That no funds from other lines shall be transferred to the Personal Services line. LEGISLATIVE INTENT From the "Medical Services" line item above, it is the intent of the Legislature that this appropriation include funding for physician-directed case management for staff and related expenses. From the "Medical Services" line item above, it is the intent of the Legislature that this appropriation include funding to assure compliance with all provisions and mandates of OBRA'89, including increased reimbursements for pediatric services, including those allowed under federal medicaid law and needed to fulfill the epsdt requirements of OBRA'89 and '90; for advance nurse practitioner reimbursement; and to increase the reimbursement for OB delivery and post partum care by $250, effective July 1, 1991. It is the intent of the Legislature that due to the annual increases in the cost of group and specialized foster care, the number of beds for out-of-home care (not regular foster care placements but group and specialized placement) be reduced and that resulting saving be directed to the development of enhanced services of "regular" foster care and family preservation services. From the federal funds appropriations above, it is the intent of the Legislature that these amounts include funding for personal services, annual increment, employee benefits, current expenses, repairs and alterations, equipment and/or programs. In the federal funds appropriations above, it is the intent of the Legislature that the Medical Services line item include the Medical Services program; the Public Assistance line item include Assistance Payments, Child Support Enforcement and Food Stamp and Donated Foods programs; the Emergency Assistance line item include Social Services programs (administrative funds to support child welfare services in West Virginia and provide funds for non-voluntary foster care maintenance); the JOBS Program line item include the Job Opportunity and Basic Skills Training program; and the OSCAR and FAMIS line item include funding for these two specific programs.

65 — Commission on Aging
(WV Code Chapter 29)
Acct. No. 4060
Total Personal Services ......................................$     —         $      -0-
Personal Services                                                   —            110,795
Annual Increment                                                    —              1,591
Employee Benefit                                                    —             52,190
Local Programs Service Delivery Costs                               —          2,650,052
Silver Haired Legislature                                           —             15,000
Senior Citizens' Centers — Land Acquisition, Construction, and
Repairs and Alterations                                           —             75,000
Area Agencies: Administration                                       —             91,072
Substate Ombudsman                                                —            143,730
Unclassified                                                     10,925,500            233,060
__________          _________
Total..........................................................$ 10,925,500        $ 3,372,490

LEGISLATIVE INTENT From the Senior Citizens' Centers — Land Acquisition, Construction, and Repairs and Alterations line item above, it is the intent of the Legislature that the following projects be funded:

Elkins Senior Center — Capital Improvements     $25,000
PRIDE in Logan County
— Congregate Meal Site in
Man-Buffalo Creek Area                            25,000
Princeton Senior Citizen Center —
Capital Improvements                              25,000

It is the intent of the Legislature that the appropriation for area agencies be utilized to fund four area agencies. Further, it is the intent of the Legislature that from the Unclassified line item above, the Department of Health and Human Resources expand the Title XIX Waiver for Senior Citizens Program to include Preston, McDowell and Wayne Counties.

66 — Consolidated Medical Service Fund
Acct. No. 4190
Foster Grandparents Stipends/Travel........................$    —        $    62,000
Institutional Facilities Operations                             —         42,010,316
Employee Benefits                                               —         15,589,369
Poison Control Hotline                                          —            250,000
Special Olympics                                                —             28,000
State Aid to Local Agencies                                     —          7,200,000
Women, Infants and Children                                     —            400,000
Maternal and Child Health Clinics, Clinicians and Medical
Contracts and Fees                                            —          4,815,670
Preventive Re-Vaccination                                       —            200,000
Primary Care Contracts to Community Health Centers              —          2,800,000
Epidemiology Research                                           —            250,000
Grants to Counties and EMS Entities                             —          1,725,000
Behavioral Health Program                                       —                -0-

Behavioral Health Program — Personal Services             —          1,444,192
Behavioral Health Program — Unclassified                  —            516,800
Behavioral Health Program — Community Programs            —         33,257,210
Family Support Act                                              —            200,000
Unclassified                                                 28,230,761                -0-
___________       ____________
Total......................................................$ 28,230,761      $ 110,748,557

The secretary of the department of health and human resources, prior to the beginning of the fiscal year, shall file with the legislative auditor an expenditure schedule for each formerly separate spending unit which has been consolidated into the above account and which receives a portion of the above appropriation. The secretary shall also, within fifteen days after the close of the six-month period of said fiscal year, file with the legislative auditor an itemized report of expenditures made during the preceding six-month period. Additional funds have been appropriated in account no. 8500 for operation of the medical facilities. LEGISLATIVE INTENT From the above appropriation, it is the intent of the Legislature that $5,000 shall be allocated to the Mid-Ohio Valley Regional Planning and Development agency to match federal funds of $45,000 for the foster grandparents program in Pleasants, Tyler and Wetzel counties. Further, it is the intent of the Legislature that from the above appropriation $20,000 be transferred to the University Affiliated Center for Developmentally Disabled to match federal Funds. From the "State Aid to Local Agencies" line item above, it is the intent of the Legislature that $100,000 be expended for the Mid-Ohio valley home care program. From the "Maternal and Child Health Clinics, Clinicians and Medical Contracts and Fees" line item above, it is the intent of the Legislature that this appropriation be used to match the federal maternal and child health block grant. This appropriation includes funding for handicapped children's services, if needed. It is anticipated that the majority of handicapped children's services will be provided through medicaid to eligible handicapped children under the federal omnibus reconciliation act (OBRA'89). Funds for this match are included in the Medical Services line item in account no. 4050, division of human services. From the "Grants to Counties and EMS Entities" line item above, it is the intent of the Legislature that priority shall be given to county level systems. It is the intent of the Legislature that the financial and programatic management of behavioral health programs shall be directly supervised and administered by the office of the secretary of the department of health and human resources. It is the intent of the Legislature that expenditure schedules for each institution or facility as required for this account be prepared and made an integral part of expenditure schedules required by Article 2, Chapter 5A of the code of West Virginia, one thousand nine hundred thirty-one, as amended. The expenditure of the appropriations for this spending unit shall be only in accordance with these approved expenditure schedules unless the schedules are amended with the consent of the secretary of administration. From the Institutional Facilities Operations line item above, it is the intent of the Legislature that on the first day of July, one thousand nine hundred ninety-one, the division of health shall transfer to the farm management commission an amount which together with available funds from the Division of Health — Hospital Services Revenue Account (account no. 8500) will equal two hundred thousand dollars. Such credits shall be treated as advance payments for food products purchased by the division of health pursuant to section six, article twelve-a, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and the division of health shall not be required to make actual payments for food products until such credits have been completely expended.

67 — Department of Health and Human Resources —
Office of the Secretary
(WV Code Chapter 5F)
Acct. No. 5343
Unclassified — Total.................................$   —       $ 181,619
68 — Human Rights Commission
(WV Code Chapter 5)
Acct. No. 5980
Total Personal Services................................$    —      $     -0-
Personal Services                                           —        367,025
Annual Increment                                            —          6,430
Employee Benefits                                           —        126,419
Unclassified                                                102,190        156,665
_______      ________
Total................................................$    102,190      $ 656,539

MILLER, Chief Justice, dissenting:

The majority has obscured the real issue in this case, i.e., can over $11.5 million in pork barrel projects be allocated through the Budget Digest? The majority whitewashes the legal precepts in this area with this novel brush: "In deciding this case, it must be reality, not theory, that is the interpretative principle." ____ W.Va. at ____, 413 S.E.2d at 361. The result is a great deal of unreality and a future potential for much mischief.

In a number of cases, we have adhered to the salutary principle that the enactment of legislation should be the product of the entire legislature (or a quorum thereof) and not the handiwork of a small group. This is the wellspring of a democratic society and is embodied in this terse statement in Section 1 of Article VI of the West Virginia Constitution: "The legislative power shall be vested in a senate and house of delegates."

In our seminal case of State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981), we struck down a statute which created the Legislative Rule-Making Review Committee, a twelve-member committee consisting of an equal number of members from the Senate and House, the purpose of which was to review and either approve or disapprove the various rules and regulations promulgated by administrative agencies given rule-making powers by the legislature. 1976 W.Va.Acts, ch. 117. In Syllabus Points 2 and 3 of Barker, we explained the reasons why this enactment was invalid:

"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."

The United States Supreme Court subsequently used much this same reasoning to invalidate a one-house congressional veto power over decisions of the Immigration and Naturalization Service allowing a particular deportable alien to remain in this country. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983).

We have rejected the notion that the legislature can amend or abolish specific statutes through the budget. Most recently in Benedict v. Polan, ____ W.Va. ____, 413 S.E.2d 107 (1991), we held that the legislature could not withdraw funds from special revenue accounts through a supplemental appropriations bill. In Benedict, we relied on Syllabus Point 13 of Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1989), where we held, in part: "It is fundamental to our constitutional law and we affirm that the Legislature cannot amend general substantive statutes with budgetary language."

In O'Connor v. Margolin, 170 W.Va. 762, 296 S.E.2d 892 (1982), the Department of Finance and Administration (Department) attempted to replace the state capitol's janitorial staff with private janitorial services. The Department failed to include funding for janitorial employees in its budget, and the legislature adopted a budget without allocating such funds. Because the Department was statutorily required to provide janitorial employees for the capital complex, we held that the Department could not replace the current public employees for the purpose of contracting privately for the same services.^[1] We also held that the legislature could not abolish such statutorily created positions by failing to fund them in the budget.^[2] We recognized, however, that the legislature could repeal or amend the statute authorizing janitors. See also Jones v. Rockefeller, 172 W.Va. 30, 303 S.E.2d 668 (1983) (governor could not close statutorily authorized state hospital); DeVault v. Nicholson, 170 W.Va. 719, 296 S.E.2d 682 (1982) (statutorily created women's prison could not be closed by Department of Corrections without specific legislative act).

Although the majority concedes, as it must, that the Budget Digest "does not have the force and effect of law," Syllabus Point 2, in part, it then proceeds to invest it with some type of Frankenstein-like half-life. The majority allows the Digest to direct funds if its decision is supported by "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." Syllabus Point 5, in part.

What a true laboratory of horrors the majority has concocted with this lineage of back-room documents that will transform what was originally pronounced as dead and having no force and effect of law into something alive. The Igors of the world may rejoice at the majority's concoction. I do not, because it takes the legislative process out of the clear light of day where matters are voted on by the entire legislature and condemns it to that subterranean realm where memoranda of negotiations, compromises, and agreements exist and discussions in committee are used to validate the specific expenditure of funds through the Budget Digest.

In its haste to legitimize the monster that it has created, the majority has ignored an entire series of statutes that govern the budget-making process. W.Va. Code, 5-1A-1, et seq., provides, in detail, how the governor's budget bill shall be itemized and classified to give the legislature sufficient details as to the proposed budget spending. W.Va.Code, 5-1A-4, outlines the various expenditure classifications. This section permits the governor to include an unclassified spending item, provided that it is limited to "an amount not exceeding one percent of the total amount of the proposed appropriations for such spending unit." W.Va.Code, 5-1A-4(b). Obviously, this limitation is designed to prevent large sums from being itemized as "unclassified" and then spent with virtually no accountability.

Of equal, if not of more, importance are the provisions of W.Va.Code, 5A-2-1, et seq., dealing with the preparation of the governor's budget and the duties of the various spending units after the budget is adopted. In particular, W.Va.Code, 5A-2-4 (1990), lists in detail the information that each spending unit must submit to the Secretary of Finance and Administration.^[3] This information is then used to prepare the governor's budget. Under W.Va.Code, 5A-2-2 (1990), the Secretary is required to "[s]erve the governor in the consideration of requests for appropriations and the preparation of the budget document."

W.Va.Code, 5A-2-10 (1990), provides that the Secretary "shall supervise and control the expenditure of appropriations made by the Legislature" and that such expenditures "shall be expended only in accordance with this article."^[4]

Under W.Va.Code, 5A-2-12 (1990), each spending unit is required to submit a detailed expenditure schedule to the Secretary outlining how the money allocated to the unit will be spent for the ensuing fiscal year.^[5] Under W.Va.Code, 5A-2-13 (1990), the expenditure schedule must be reviewed by the Secretary, and, if found to comply with the legislative appropriation for the spending unit, it may be approved. Under W.Va.Code, 5A-2-15 (1990), thirty days prior to the beginning of each quarter of the fiscal year, the spending units are required to submit requests for allotments of public funds to meet their expenditures in accordance with the approved expenditure schedule.

We spoke to the earlier counterparts of these provisions^[6] in State ex rel. West Virginia Board of Education v. Miller, 153 W.Va. 414, 168 S.E.2d 820 (1969), and recognized they were designed to implement the Modern Budget Amendment found in Section 51 of Article VI of the West Virginia Constitution. This latter provision clearly contemplates that an itemized budget bill will be adopted.^[7] We have found this constitutional provision to provide for an executive budget, as we explained in Syllabus Point 7 of State ex rel. Moore v. Blankenship, 158 W.Va. 939, 217 S.E.2d 232 (1975):

"While under W.Va. Const., art. VI, § 51, [sub.] B(5) and [sub.] C(7) there is unambiguous language permitting reduction of amounts in the budget bill by the Legislature and subsequent passage of supplementary appropriation bills, the Legislature is not permitted to subvert the intent of the electorate in adopting the concept of an executive budget in art. VI, § 51 by making the constitutionally mandated budget bill a mere formality and then establishing an essentially legislative budget through the devise of supplementary appropriation bills."

See also State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973).

To my mind, this law mandates a finding that any attempt by way of the Budget Digest to allocate funds or to direct expenditures differently from that prescribed in the budget and its complementary legislation is void. The Constitution and the statutory framework are too detailed to permit the Digest to intrude under the guise of legislative intent. The statutory language authorizing the Digest plainly states that it is "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." W.Va.Code, 4-1-18 (1969).^[8] Thus, the plain language of this statute reflects that the Digest is designed to do two things: first, summarize the budget bill as passed; and, second, reflect the legislative changes made to the budget as submitted by the governor.

What the majority has done is distort the constitutional and legislative framework surrounding the budget and ignore our cases that preclude amending legislation without the full vote of the legislature. I respectfully dissent.

NOTES

[1] W.Va.Code, 4-1-18 [1969], in its entirety, provides:

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, and the various state spending units for such use as may be deemed proper.

[2] We hasten to point out that the proper respondents in this case are the Speaker of the West Virginia House of Delegates and the President of the West Virginia State Senate. However, because: (1) these officers had actual notice; (2) the respondents admitted in open court that had the President and Speaker been named as parties respondent, their answer to the petition and note of argument would be the same as for the respondents actually named; and (3) the issue in this case is ripe for decision, we have decided not to dismiss the entire case in order to make a procedural point. However, in the future, litigants should be careful to bring all cases involving the legislature against the presiding officers of the House and Senate.

[3] Since reality and not theory is the appropriate interpretive principle, I would relate to the reader that I served on the House Finance Committee from January 1971 through December 1972. During that time, notwithstanding an undergraduate degree in economics and a law degree, I had not a clue about what was going on in the budget process. Had I served another two terms the whole scheme would undoubtedly have become revealed to me; however, from what I could see as a freshman, most of the hard budget-making decisions were made by the chairman, the vice-chairman, the ranking minority member, and the professional staff who were paid big money to worry about the nits and lice of the State budget on a more or less regular basis.

Indeed, members of both houses, agency heads and constituents would petition the chairman to include specific appropriations into the budget and frequently these petitions were granted in whole or in part. Thus a great deal of dialogue went on among the chairman, members of the committee, representatives of affected constituencies, and department heads. Nonetheless, most of these negotiations tended to have a bilateral rather than multilateral structure, partially because ordinary members of the committee like me had other fish to fry than worrying about specific appropriations for pork barrel projects in counties other than our own.

The greatest monument to the ongoing practical need to commend decision-making on budget matters to the leadership is the convention among members of the legislature that there will be no floor amendments to the budget bill. Indeed, members frequently offer amendments, either from ignorance, perversity, or a desire to satisfy militant constituents, but the amendments are always voted down.

[4] I do not use this language either unadvisedly or simply to flatter. In my experience some of the highest quality people in state government are staff members of the two finance committees and the office of the legislative auditor. Because finance committee chairmen, vice-chairmen, and sub-committee chairmen can be easily defeated in elections, given their high profiles, it is important to have knowledgeable staff who can provide continuity from year to year in an enormously complicated and confusing process.

[1] Syllabus Point 1 of O'Connor states:

"W.Va.Code, 5A-4-1 [1969], which requires that the Director of the General Services Division of the Department of Finance and Administration furnish janitors for the maintenance of the State capitol buildings and grounds in Charleston, West Virginia, requires that janitors so retained be State employees, and the Commissioner of Finance and Administration and the Director of the General Services Division of that Department are without authority to terminate the employment of such employees as a class for the purpose of obtaining the same type janitorial service through private contracting."

[2] Syllabus Point 3 of O'Connor provides:

"W.Va.Code, 5A-4-1 [1969], which requires that the janitors employed pursuant to that statute be State employees, was not amended by way of the funding provisions in the State budget for fiscal year 1983, to provide that such janitorial services may be secured to the State by private contracting."

[3] W.Va.Code, 5A-2-4, provides:

"A request for an appropriation for a spending unit shall specify and itemize in written form:

"(1) A statement showing the amount and kinds of revenue and receipts collected for use of the spending agency during the next preceding fiscal year and anticipated collections for the fiscal year next ensuing;

"(2) A statement by purposes and objects of the amount of appropriations requested for the spending unit without deducting the amount of anticipated collections of special revenue, federal funds or other receipts;

"(3) A statement showing the actual expenditures of the spending unit for the preceding year and estimated expenditures for the current fiscal year itemized by purposes and objects, including those from regular and supplementary appropriations, federal funds, private contributions, transfers, allotments from an emergency or contingent fund and any other expenditures made by or for the spending unit;

"(4) A statement showing the number, classification and compensation of persons employed by the spending unit distinguishing between regular, special and casual employees during the preceding fiscal year and during the current fiscal year. The statement shall show the personnel requirements in similar form for the ensuing fiscal year for which appropriations are requested;

"(5) A statement showing in detail the purposes for which increased amounts of appropriations, if any, are requested, and giving a justification statement for the expenditure of the increased amount. A construction or other improvement request shall show in detail the kind and scope of construction or improvement requested;

"(6) A statement of money claims against the state arising out of the activities of the spending unit; and

"(7) Such other information as the secretary may request."

[4] The full text of W.Va.Code, 5A-2-10, is:

"The secretary shall supervise and control the expenditure of appropriations made by the Legislature excluding those made to the Legislature and those made to the judicial branch of the state government. The expenditure of an appropriation made by the Legislature except that made for the Legislature itself and the judicial branch of state government shall be conditioned upon compliance by the spending unit with the provisions of this article. An appropriation made by the Legislature except that made for the Legislature itself and the judicial branch of state government shall be expended only in accordance with this article."

[5] W.Va.Code, 5A-2-12, provides, in material part:

"The schedule shall show:

"(1) A proposed monthly rate of expenditure for amounts appropriated for personal services;

"(2) Each and every position budgeted under personal services for the next ensuing fiscal year, with the monthly salary or compensation of each such position;

"(3) A proposed quarterly rate of expenditure for amounts appropriated for employee benefits, current expenses, equipment and repairs and alterations classified by a uniform system of accounting as called for in section twenty-five [§ 5A-2-25] of this article for each item of every appropriation;

"(4) A proposed yearly plan of expenditure for amounts appropriated for buildings and lands; and

"(5) A proposed quarterly plan of receipts itemized by type of revenue."

[6] The current statute is the result of a 1990 revision of Chapter 5A, Article 2. See 1990 W.Va.Acts, ch. 2. The predecessor statutes contain similar provisions. The Secretary of Finance and Administration was formerly called the Commissioner of Finance and Administration. See W.Va.Code, 5F-2-1, et seq.

[7] The relevant language from Section 51 of Article VI of our Constitution is:

"(3) Each budget shall embrace an itemized estimate of the appropriations, in such form and detail as the governor shall determine or as may be prescribed by law: (a) For the legislature as certified to the governor in the manner hereinafter provided; (b) for the executive department; (c) for the judiciary department, as provided by law, certified to the governor by the auditor; (d) for payment and discharge of the principal and interest of any debt of the State created in conformity with the Constitution, and all laws enacted in pursuance thereof; (e) for the salaries payable by the State under the Constitution and laws of the State; (f) for such other purposes as are set forth in the Constitution and in laws made in pursuance thereof.

"(4) The governor shall deliver to the presiding officer of each house the budget and a bill for all the proposed appropriations of the budget clearly itemized and classified, in such form and detail as the governor shall determine or as may be prescribed by law; and the presiding officer of each house shall promptly cause the bill to be introduced therein, and such bill shall be known as the `Budget Bill.'...

"(5) The legislature shall not amend the budget bill so as to create a deficit but may amend the bill by increasing or decreasing any item therein: ... Provided ... that the legislature shall not increase the estimate of revenue submitted in the budget without the approval of the governor."

[8] The complete text of W.Va.Code, 4-1-18, is:

"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, and the various state spending units for such use as may be deemed proper."