WV Deputy Sheriff's Assoc. v. Sims, et al.
Annotate this CaseSeptember 1998 Term
___________
No. 25212
___________
WEST VIRGINIA DEPUTY SHERIFFS' ASSOCIATION, INC.,
a West Virginia Corporation,
RODNEY A. MILLER, RICK WOODYARD, PAT MULL,
K. C. BOHRER, DAVID D. GENTRY, JOSEPH C. STILES,
and TERRY L. MILLER, individually and as members of the
Executive Board of the West Virginia Deputy Sheriffs' Association,
Petitioners,
v.
JAMES L. SIMS, as the Executive Secretary of the State of
West Virginia Consolidated Public Retirement Board,
LORETTA K. ALBRIGHT, BEATRICE H. "BEE" GLADWELL,
CARL A. GUTHRIE, ELIZABETH POUNDSTONE,
JAMES P. QUARLES, ROGER A. RUMBAUGH,
S. S. SATTERFIELD, and JANET F. WILSON,
All members of the West Virginia Consolidated Public
Retirement Board, GLEN GAINER, III, as Vice Chairman
of the West Virginia Consolidated Public Retirement Board,
GOVERNOR CECIL H. UNDERWOOD and
STATE TREASURER, JOHN D. PERDUE,
Both as Ex Officio Members of the
West Virginia Consolidated Public Retirement Board,
Respondents.
________________________________________________________
Writ of Mandamus
WRIT GRANTED AS MOULDED
________________________________________________________
Submitted: September 8, 1998
Filed: November 16, 1998
John F. Dascoli,
Esq. John
R. Fowler, Esq.
Andrew J. Katz,
Esq. James
C. Stebbins, Esq.
The Segal Law
Firm Huddleston,
Bolen, Beatty, Porter
Charleston, West
Virginia
& Copen
Attorneys for
Petitioners Charleston,
West Virginia
Attorneys
for Respondents
JUSTICE STARCHER delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS, deeming herself disqualified, did not participation in the decision in this case.
SYLLABUS BY THE COURT
1. Statutory
"judicial review" provisions -- that make implementation of a statute contingent
upon judicial construction, review, or approval of the statute; that attempt to mandate
judicial construction, review, or approval of a statute prior to its effectiveness; or
that have the purpose of creating a "test case" -- may violate the separation of
powers doctrine contained in Article V, Section 1 of the West Virginia Constitution.
Such statutory provisions are disfavored and courts are not obliged to accept and/or rule
in proceedings that arise as a result of such provisions.
2. The fiduciary
duty of the Consolidated Public Retirement Board established by W. Va. Code,
5-10D-1 [1998] and its members, with respect to the public employee pension funds
and assets entrusted to the Board, includes the affirmative duty to monitor and evaluate
the effect of legislative actions that may affect such funds and assets, and to take all
necessary actions including initiating court proceedings if necessary to protect the
fiscal and actuarial solvency of such funds and assets.
3. The speculative
possibility that the transfer of funds and assets that is required by W.Va. Code, 7-14D-8
[1998], from the public employees' retirement system ("PERS") trust fund to the
deputy sheriffs' retirement fund established in W.Va. Code, 7- 14D-6 [1998] may
impair the fiscal solvency of the PERS trust fund does not bar the transfer of assets
where legal mechanisms exist that can detect and correct any impaired solvency in a timely
fashion.
Starcher, J.:
In the instant case, we permit the
transfer of employee pension funds to the new Deputy Sheriffs' Retirement Fund.
I.
Facts and Background
On March 14, 1998 the West Virginia
Legislature passed House Bill 2415 ("HB 2415"), creating a new retirement system
for deputy sheriffs. Inter alia, HB 2415 enacted W.Va. Code, 7-14D-1 to
7-14D-30, the West Virginia Deputy Sheriff Retirement System Act ("the Act").
The Act creates the West Virginia Deputy Sheriff Retirement Fund ("the Deputy
Fund"), W.Va. Code, 7-14D-6 [1998].
Participation in the new deputy sheriff
retirement system and the new Deputy Fund is mandatory for deputy sheriffs hired on or
after July 1, 1998; transfer to the new system is optional for deputy sheriffs hired prior
to July 1, 1998. W.Va. Code, 7-14D-5 [1998].See
footnote 1 1 Retirement fund assets for deputies who choose to transfer,
including employer and employee contributions, are to be transferred from the Consolidated
Public Employees Retirement System ("PERS") trust fund established in W.Va.
Code, 5-10-3 [1988] ("the PERS Fund") to the new Deputy Fund. W.Va.
Code, 7-14-8 [1998].
The instant case arises because the Act
requires the Consolidated Public Retirement Board ("the Board"), a public body
established pursuant to W.Va. Code, 5-10D-1 [1998] that holds and is the trustee
for both the PERS Fund and the new Deputy Fund, to:
. . . cause a judicial determination to
be made regarding the transfer of assets from the public employees retirement system to
the deputy sheriff's retirement system by causing a suit to be filed in the supreme court
of this state seeking a writ of mandamus on or before the thirty-first of July, one
thousand nine hundred ninety-eight. W.Va. Code, § 7-14D-8(d) [1998].
The Act also requires the Board to:
. . . cause to be included in the judicial
determination . . . the issue regarding
the possible loss of any rights in regard to benefits accorded the electing deputy under
the West Virginia public employees insurance act, article sixteen, chapter five of this
code, and whether a deputy sheriff, by electing to participate in the retirement plan
created in this article, is being unlawfully discriminated against, or is being unlawfully
deprived of a right of benefit to which he or she would otherwise be entitled. W.Va.
Code, § 7-14D-8a(b) [1998]. The title of this statutory section calls this
"judicial determination" a "test case." Id.
Pursuant to the foregoing provisions of
the Act, on May 14, 1998, James L. Sims, the executive secretary of the Board, advised the
President of the West Virginia Deputy Sheriffs' Association that the Board would refuse to
allow funds to be transferred from the
PERS Fund to the Deputy Fund for any deputy sheriff employed prior to July 1, 1998. Mr.
Sims stated:
House Bill 2415 specifically requires
that a writ of mandamus be filed with the West Virginia Supreme Court on or before July
31, 1998, which addresses and requires judicial determination of the above-mentioned legal
issues. Consequently, and consistent with the statutory directive in this regard, the
Consolidated Public Retirement Board has met today [May 14, 1998] and has passed a
Resolution regarding this legislation, a copy of which is enclosed for your review.
Pursuant to that Resolution, the Board will not proceed to transfer any assets from PERS
to the new Deputy Sheriff's Retirement System unless and until all legal and
constitutional issues raised by the legislation have been judicially resolved.
Additionally, the Board is refusing to
allow individuals hired prior to July 1, 1998 to be enrolled as members in the new Deputy
Sheriff Retirement Fund.
As a result of this refusal by the Board
to implement the provisions of the Act regarding the enrollment of and transfer of assets
for deputies hired prior to July 1, 1998, the petitioners, the West Virginia Deputy
Sheriffs' Association and several of its individual members, filed the instant petition
for a writ of mandamus asking this Court to compel the respondents, the Board and its
members, to comply with the pertinent provisions of the Act.
II.
Standard of Review
This is an original jurisdiction
proceeding. Consequently, we are not directly reviewing a ruling or determination by a
lower tribunal. Our standard for original mandamus jurisdiction has been recently stated
as:
"'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.' Syllabus Point 2, State
ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)."
Syllabus Point 1, Smith v. West Virginia State Board of Education, 170 W.Va. 593,
295 S.E.2d 680 (1982).
Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993).
III.
Discussion
Two issues are presented
by the instant case. First, we face a procedural question: how should this Court respond
to a "friendly lawsuit" or "test case" that essentially seeks an
advisory opinion by this Court, and that is brought as a result of a statutory directive
that such a case be brought?
To this first question, our answer (in
summary) is that we will respond cautiously and with an explicit caveat that in the
future such statutory directives are legally questionable and disfavored.
The second issue we face
is a substantive question: is there a legal basis for the PERS Board's refusal to
implement the enrollment and asset transfer provisions of the
Act? To this second question, our answer (in summary) is that, in
the posture of the instant case, there is no legal basis (other than the statutory
directive to cause a "test case" to be brought) for the Board's refusal to
follow the requirements of the Act.
However, our ruling does not purport to
consider all possible challenges to the Act. Additionally, our ruling is premised upon the
Board's discharging its fiduciary duty relating to the PERS Fund and the new Deputy Fund.
A.
Statutorily-Required Test Cases
This is the second occasion within a
year that the Legislature has included within a piece of legislation a statutory directive
that a "test case" lawsuit should be brought to address constitutional and other
legal issues arising out of the legislation's provisions.
The first occasion was in House Bill 4702
("HB 4702"), also enacted in 1998. HB 4702 directed the West Virginia Investment
Management Board to invest pension funds in the construction of state regional jails and
correctional institutions. See generally, State ex rel. W.Va. Regional Jail
& Correctional Facility Authority v. W.Va. Investment Management Board, ___ W.Va.
___, ___ S.E.2d ___ (No. 25134, July 17, 1998).
As a part of HB 4702, new W.Va. Code,
12-6-21(f) [1998] directed that there be, as a "condition precedent " to any
such investment of pension funds, "an action initiated in the West Virginia Supreme
Court of Appeals regarding the [investment] . . . and to
otherwise determine the constitutionality of the provisions of Enrolled House Bill
4702. . . ." Pursuant to this
statutory directive, a writ of mandamus was brought by the Regional Jail Authority against
the Investment Management Board, asking this Court to require that the pension funds be
invested as required by HB 4702. Regional Jail, supra. We granted the writ and
approved of the loan, but we did not discuss the suit's origin in a statutory directive.
In the instant case, pursuant to a similar
statutory directive, the PERS Board has refused to transfer the pre-July 1, 1998 deputy
pension funds, in order to create a test case. The Investment Management Board had
similarly refused to act in the Regional Jail case.
Both the provisions of W.Va. Code,
12-6-21(F) [1998] that gave rise to the Regional Jail opinion, and the provisions
of W.Va. Code, 7-14D-8(d) [1998] that gave rise to the instant case, are
legislative directives that this Court's opinion as to the constitutional or other legal
acceptability of legislation be obtained by means of a "test case."
In both cases, the pleadings ostensibly
pit a petitioner with an interest in the funds and statute in question against a
respondent that will not comply with the mandate of the law. And in both cases, the
respondent's unwillingness to comply with the law comes not out of conviction, but as the
result of a statutory directive.
In both cases, the nominally adverse
postures of the parties are a legal fiction used to create a case and a ruling by this
Court on the legal acceptability of a piece of legislation -- in other words, a classic
"advisory opinion."
Generally and consistently, this Court has
held that we are not a body that gives advisory legal opinions. "Courts are not
constituted for the purpose of making advisory decrees or resolving academic
disputes." Syllabus Point 2, in part, Harshbarger v. Gainer, 184 W.Va. 656,
403 S.E.2d 399 (1991).
Nevertheless, this general principle of
not issuing advisory opinions has important exceptions, as we recognized in Alsop v.
McCartney, 159 W.Va. 829, 834-35, 228 S.E.2d 278, 281 (1979):
Experience dictates that there are
occasions on which courts must undertake something in the nature of advisory opinions. We
have done this in cases involving elections because of the expense attendant upon
campaigns and the deleterious effect on representative government which uncertainty in
elections causes. State ex rel. Maloney v. McCartney, [___] W.Va. [___], 223 S.E.2d 607 (1976). Similarly we have rendered essentially advisory opinions when it was necessary
to permit bond counsel to authorize the marketing of bonds for public authorities. State
ex rel. City of Charleston v. Coghill, 156 W.Va. 87, 207 S.E.2d 113 (1973). The need for
certainty before the investment of enormous amounts of human effort and before the
investment of vast sums of money has led us to an ad hoc reappraisal of the common
law requirement of a true adversary "case or controversy" as a condition
precedent to court review.
Nonetheless, before this Court will
undertake to adjudicate any matter directly affecting the public in general or groups,
classes, and interests both unknown and unknowable, it must appear conclusively that every
issue which could be raised in a proceeding to settle rights was raised and that those
undertaking to perform the role of devil's advocate in a proceeding of this nature, which
is in no way "adversary" in the conventional sense of a case or controversy,
have pursued their task with greater than average diligence and in the utmost good faith.
In addition, in cases which are primarily concerned with a declaration of rights, the
Court retains the prerogative to raise related issues on its own initiative and to demand
as a condition precedent to a formal decision that the issues which it has raised be
briefed and argued.
As Alsop recognizes, one problem
with "friendly," or "test case" lawsuits is that the nominally adverse
parties are not truly at each other's throats. The parties do not have the gut-level
adversarial incentive that causes a litigant to bring forward all possibly meritorious
arguments that might defeat their opponent's claims.
As a result, all of the potential issues
may not get a zealous and full airing, and courts may be significantly handicapped in
their deliberations and rulings. Recognizing this danger, we follow the principles set
forth in Alsop and approach "friendly" lawsuits that essentially seek
advisory opinions with caution.See footnote 2 2
Additionally and importantly, neither Alsop
(nor any other case that our research has found, in West Virginia or elsewhere) gives us
guidance regarding cases where a legislature has directed in a statutory provision that an
agency of government must take action -- including refusal to comply with other duly
enacted provisions of the law -- so that a "test case" will result.
Without engaging in an extended discussion
of the issue, a wide range of possible objections to and concerns about such directives
come to mind. For example, could such directives violate the constitutional separation of
powers,See footnote 3 3 insofar as
the Legislature is attempting to direct the judiciary to rule on a case? Can the
Legislature direct this Court when to apply and when not to apply the exception to the
disfavoring of "advisory opinions" set forth in Alsop, supra? What would
occur if this Court declined to accept such a case, or declined to rule on such a case
after accepting it?
We have recognized in exceptional
circumstances that it may be this Court's proper role to entertain an occasional friendly,
"test case" lawsuit -- albeit cautiously. Alsop, supra. But given
the apparent novelty in our jurisprudence of explicit statutory directives creating such
lawsuits -- and the arrival of two such novel lawsuits on this Court's doorstep in the
last year -- we conclude that this Court must attempt to speak firmly and clearly
regarding statutory "test case" directives.
If we do not speak on this issue, what
will prevent similar directives from being included in legislation regularly, whenever the
Legislature has constitutional or other uncertainties about their enactments? At least at
first blush, it appears to us that such a development would constitute an undesirable and
probably impermissible alteration of our tri-partite constitutional scheme of government.
We hold, therefore, that statutory
"judicial review" provisions -- that make implementation of a statute contingent
upon judicial construction, review, or approval of the statute; that attempt to mandate
judicial construction, review or approval of a statute prior to its effectiveness; or that
have the purpose of creating a "test case" -- may violate the separation of
powers doctrine contained in Article V, Section 1 of the West Virginia Constitution.
Such statutory provisions are disfavored and courts are not obliged to accept and/or rule
in proceedings that arise as a result of such provisions. In appropriate cases, such
provisions, if they are unconstitutional or are otherwise legally impermissible, may be
severed from the statutes in which the provisions are contained.
In the instant case (and in the Regional
Jail case), the Legislature did not have the benefit of our position on the problems
raised by such provisions. Having accepted the instant case, and seeing no compelling
reason not to examine the substantive issues raised in the petition, we follow the
approach of Alsop and cautiously examine the merits of this "test case."
B.
Transfer of Funds
The PERS Board asserts
as its principal defense to the petitioner deputies' mandamus action that the Board does
not know the financial consequences of transferring deputy sheriff retirement assets out
of the PERS Fund and into the new Deputy Fund.
Therefore, the Board asks this Court to
deny the writ of mandamus until the Board can conduct a study of the effects of the
transfer. If there is no injury to the fiscal soundness of the rest of the PERS Fund, then
PERS says it will not oppose the writ of mandamus.
However, if a study by the Board shows
that the transfer of deputy sheriff funds out of the PERS Fund will threaten the actuarial
solvency of the PERS Fund, then the Board says that it will oppose the transfer. The Board
would base such opposition, it says, on the grounds that a transfer that threatens the
PERS Fund's solvency would cause the Board to violate the Board's fiduciary duties to the
beneficiaries of the PERS Fund.
The Board says that it has not performed
such an "impact study" of the effect of the proposed transfer because the
Legislature has not told the Board to do so, and because the Legislature has not
"allowed the Board enough time" for such a study. (The Board does not suggest
what would be enough time.)
In Regional Jail, supra, this Court
recently recognized the fiduciary duty owed by the Board to the beneficiaries of the funds
and assets that the Board holds in trust, ___ W.Va. at ___, ___ S.E.2d at ___ , slip
op. at ___ and we reaffirmed what we said about this fiduciary duty in Dadisman v.
Moore, 181 W.Va. 779, 384 S.E.2d 816 (1988). Id.
We stated as follows in the syllabus of Dadisman:
The PERS Trustees have the highest
fiduciary duty to maintain the terms of the trust . . . The board has a fiduciary duty to
protect the fund and the interests of all beneficiaries thereof, and it must exercise due
care, diligence, and skill in administering the trust . . . The Board . . . has a
fiduciary relation with the PERS trust and participants and must invest employee earned
pension system assets consistently with the highest standards of fiduciary duty.
Syllabus Points 5, 14, 25 (in part), Dadisman, supra.
It appears that the Board may believe that
an affirmative order from the Legislature is necessary for the Board to evaluate the
effect of the transfer of deputy sheriff retirement funds upon the fiscal and actuarial
integrity and solvency of the other funds for which the Board is responsible.
However, our view is to the contrary. The
fiduciary duty of the Board and its members that arises from the trust relationship with
the beneficiaries of the assets in the Board's care encompasses the duty to monitor and
evaluate the fiscal and actuarial soundness of the trust funds for which the Board is
responsible.
In Dadisman, this Court used strong
language in criticizing the Board's passive acquiescence for years to the underfunding of
the PERS Fund:
[W]hy didn't the [PERS] Board of Trustees
come to this Court years ago as a Petitioner, rather than appearing now as a Respondent,
culpable for the plunder of the funds placed in their trust? 181 W.Va. at 788 n.12, 384 S.E.2d at 825 n.12.
The affirmative duty of the Board to act
today and in the future in an informed, pro-active and independent manner to perform its
fiduciary duty is no less now that it was when Dadisman was decided.
An evaluation of the objective fiscal
consequences of HB 2415 is doubtless complex, and our jurisprudence correctly counsels
that this Court should avoid a primary role in ascertaining the details of such matters.
We are loath to "assume the role of financial prognosticator and micromanager . . .
." Regional Jail, ___ W.Va. at ___, ___ S.E.2d at ___, slip op. at ___. That
role belongs, ultimately, to the Board. Even without specific legislative direction, the
Board has a duty to evaluate the effects of the new statutory scheme, and if necessary to
act on the basis of that evaluation to protect the interests of the persons for whom the
Board is the trustee.
If the Board finds that the creation of
the new Deputy Fund will create actuarial or solvency problems, then the Board must
immediately and forcefully inform the Legislature of the problems. If the Legislature does
not take corrective action, then if necessary the Board must follow the route suggested in
Dadisman -- and use the court system to protect the rights of the beneficiaries of
the funds held in trust by the Board.
Based on the foregoing reasoning, we hold
that the fiduciary duty of the Consolidated Public Retirement Board established by W.
Va. Code, 5-10D-1 [1998] and its members, with respect to the public employee
pension funds and assets entrusted to board care, includes the affirmative duty to monitor
and evaluate the effect of legislative actions that may affect such funds and assets, and
to take all necessary actions, including initiating court proceedings if necessary, to
protect the integrity and fiscal solvency of such funds.See footnote 4 4
We further hold that the speculative
possibility that the transfer of assets required by W.Va. Code, 7-14D-8 [1998] from
the public employees' retirement system ("PERS") trust fund to the deputy
sheriffs' retirement fund established in W.Va. Code, 7 14D-6 [1998] may impair the
fiscal solvency of the PERS trust fund does not bar the transfer of assets, where legal
mechanisms exist that can detect and correct any impaired solvency in a timely fashion.
Because there is a mechanism within
current law -- the Board's performance of its fiduciary duty -- that will (if properly
followed) result in the correction of any actuarial or solvency problems caused by HB 2415
and thus prevent any unconstitutional or otherwise illegal impairment of the rights of the
beneficiaries of the PERS Fund, there is no basis for this Court to stop the
implementation of duly enacted HB 2415.See footnote 5
5
Therefore, we grant the writ as moulded.
The Respondents are required to implement the provisions of House Bill 2415. To the extent
that the litigation in the instant case has interfered with any statutory deadlines
established in House Bill 2415, those deadlines may be extended for an appropriate period
to effect the statutory purpose. Additionally, the respondents are required to immediately
conduct a full actuarial and solvency impact review of the effects of implementing House
Bill 2415 and to act thereon in compliance with the principles set forth in this opinion.
The Petitioners are entitled to be reimbursed by the Respondents for their attorney fees
and costs incurred in prosecuting the instant case in this Court.
Writ Granted as Moulded.
Footnote: 1
1 The Act also requires that deputy sheriffs
employed prior to July 1, 1998 receive a notice that "shall clearly and accurately
explain the benefits, financial implications and consequences to a deputy sheriff of
electing to participate" in the Deputy Sheriff Retirement Fund, "including the
consequences and financial implications in regard to the benefits under the public
employees insurance plan as set forth in article sixteen, chapter five of this code for
those deputy sheriffs employed by a county which participates in that insurance
plan." W.Va. Code, 7-14D-8a(a) [1998].
Footnote: 2 2 We have also recognized the propriety of declaratory judgment actions to obtain "anticipatory orders which adjudicate real controversies before violation or breach results in loss to one or the other of the persons involved." Board of Educ. of Wyoming County v. Board of Public Works, 144 W.Va. 593, 600, 109 S.E.2d 552, 556 (1959). Declaratory judgment may be used to determine the constitutionality of a statute. Id.
Footnote: 3 3 Article V, Section 1 of the West
Virginia Constitution states:
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; nor shall any person exercise the powers of
more than one of them at the same time, except that justices of the peace shall be
eligible to the legislature.
Footnote: 4 4 One of the statutes that was
involved in the Regional Jail, supra, case, was W.Va. Code, 12-6-21
[1998]. Subsection (g) of this statute, not addressed in the Regional Jail case,
states:
(g) The Legislature recognizes the
fiduciary liability and responsibility imposed on the board by this article and by article
six, chapter forty-four of this code. The board, its trustees and employees, have no
liability, either personally or corporately with respect to the investment provided for in
this section and the loans made under section nineteen of this article, if the investment
and loans are made in accordance with the respective provisions of this section and
section nineteen of this article.
While not deciding the issue (because it is not before us) we
observe that reading this statutory language to equate the full performance of a pension
fund trustee's duty with simply following a statutory directive would be of questionable
constitutionality -- on the grounds, inter alia, that such an equation would
unconstitutionally eviscerate the independent duty and responsibility of the trustees of
public employee pension funds, downgrading that duty to the mere slavish following of
legislative fiat and impairing the primacy of the trustees' duty to the beneficiaries of
the pension fund to see that their entitlements are protected. See generally, Dadisman,
supra.
Footnote: 5 5 The statutory directive at W.Va.
Code, § 7-14D-8a(b) [1998] that there be judicial review of the provisions of HB 2415
states that the "judicial determination" should include the issues of:
. . . the possible loss of any rights in
regard to benefits accorded the electing deputy . . . and whether a deputy sheriff, by
electing to participate in the retirement plan created in this article, is being
unlawfully discriminated against, or is being unlawfully deprived of a right or benefit to
which he or she would otherwise be entitled.
Id.
Although the respondents discuss these issues in their response to
the mandamus petition, we decline to address these issues. If there are deputies who wish
to raise these or other issues regarding the new retirement fund in the context of a
less-friendly, more adversarial case, they are not foreclosed from doing so by our ruling
in the instant case.
Nor does our ruling herein preclude subsequent legal action based
on solvency issues arising out of HB 2415. We simply rule today that the respondents have
not presented grounds in the instant case that will permit them to fail to obey the
requirements of duly enacted legislation.
Finally, we also do not rule on another issue raised in the
pleadings, the method of computation of the amount of funds to be transferred for each
deputy. The parties are in apparent agreement on this issue. In any event, it appears to
be a matter better suited to judicial attention (if necessary) in the first instance in a
circuit court.
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