Kincaid v. Mangum
Annotate this CaseJanuary 1993 Term
___________
No. 21505
___________
RICHARD LEE KINCAID AND AARON BOLEN,
ON BEHALF OF THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs
v.
R. MICHAEL MANGUM, SHERIFF OF RALEIGH COUNTY;
THOMAS SCOTT, CHIEF CORRECTIONAL OFFICER
OF THE RALEIGH COUNTY JAIL; AND
PAUL FLANAGAN, VERNON BARLEY, AND JACK MacDONALD,
COUNTY COMMISSIONERS OF RALEIGH COUNTY,
Defendants
___________________________________________________
Certified Question from the United States District
Court for the Southern District of West Virginia
Honorable Elizabeth V. Hallanan, Judge
Civil Action No. S:91-0721
CERTIFIED QUESTIONS ANSWERED
________________________________________________
Submitted: March 9, 1993
Filed: June 10, 1993
Daniel F. Hedges
Charleston, West Virginia
Robert M. Bastress
Morgantown, West Virginia
Attorneys for the Plaintiffs
Steven P. McGowan
George E. Carenbauer
Steptoe & Johnson
Charleston, West Virginia
Attorneys for the Defendants,
R. Michael Mangum and J. R. Lilly
Michele Grinberg
Flaherty, Sensabaugh & Bonasso
Charleston, West Virginia
Attorney for the Defendants,
Paul Flanagan, Vernon Barley and Jack MacDonald
JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "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." Syl. pt. 2, State ex rel.
Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).
2. If there is a reasonable basis for the grouping of
various matters in a legislative bill, and if the grouping will not
lead to logrolling or other deceiving tactics, then the one-object
rule in W. Va. Const. art. VI, § 30 is not violated; however, the
use of an omnibus bill to authorize legislative rules violates the
one-object rule found in W. Va. Const. art. VI, § 30 because the
use of the omnibus bill to authorize legislative rules can lead to
logrolling or other deceiving tactics.
3. When a certified question is not framed so that this
Court is able to fully address the law which is involved in the
question, then this Court retains the power to reformulate
questions certified to it under both the Uniform Certification of
Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. and W.
Va. Code, 58-5-2 [1967], the statute relating to certified
questions from a circuit court of this State to this Court.
4. "In determining whether to extend full retroactivity,
the following factors are to be considered: First, the nature of
the substantive issue overruled must be determined. If the issue
involves a traditionally settled area of law, such as contracts or
property as distinguished from torts, and the new rule was not
clearly foreshadowed, then retroactivity is less justified.
Second, where the overruled decision deals with procedural law
rather than substantive, retroactivity ordinarily will be more
readily accorded. Third, common law decisions, when overruled, may
result in the overruling decision being given retroactive effect,
since the substantive issue usually has a narrower impact and is
likely to involve fewer parties. Fourth, where, on the other hand,
substantial public issues are involved, arising from statutory or
constitutional interpretations that represent a clear departure
from prior precedent, prospective application will ordinarily be
favored. Fifth, the more radically the new decision departs from
previous substantive law, the greater the need for limiting
retroactivity. Finally, this Court will also look to the precedent
of other courts which have determined the retroactive/prospective
question in the same area of the law in their overruling
decisions." Syl. pt. 5, Bradley v. Appalachian Power Co., 163 W.
Va. 332, 256 S.E.2d 879 (1979).
5. When this Court issues an interpretation of the W.
Va. Const. which was clearly not foreshadowed, and when retroactive
application of the new interpretation would excessively burden the
government's ability to carry out its functions, then the new
constitutional interpretation will apply prospectively.
McHugh, Justice:
This case is before the Court upon the certified question
of the United States District Court for the Southern District of
West Virginia. The plaintiffs, Richard Lee Kincaid and Aaron
Bolen, on behalf of themselves and all others similarly situated,
are inmates in the Raleigh County Jail. The defendants are the
Sheriff of Raleigh County, R. Michael Mangum; the Chief
Correctional Officer of Raleigh County, Thomas Scott; and the
County Commissioners of Raleigh County, Paul Flanagan, Vernon
Barley, and Jack MacDonald.
I.
The plaintiffs filed a civil rights action in the United
States District Court for the Southern District of West Virginia
alleging that the conditions of their confinement violated the
United States Constitution and certain state regulations. The
district court certified the case as a class action.
Eventually, the parties agreed to settle seventeen out of
nineteen areas of concern raised by the plaintiffs. However, two
issues remained: the overcrowding of the jail and the adequacy of
the jail's outdoor exercise facilities. The plaintiffs moved for
a preliminary injunction seeking relief on those two matters. The
district court granted the injunction by relying on regulations
issued by the West Virginia Jail and Prison Standards Commission
set forth in 95 West Virginia Code of State Rules § 1-1.1, et seq.
The defendants moved for reconsideration, arguing that
the regulations upon which the district court relied were promulgated in a manner which violated the West Virginia
Constitution and the State Administrative Procedures Act set forth
in W. Va. Code, 29A-1-1, et seq.See footnote 1 Pursuant to the defendants'
argument the United States District Court for the Southern District
of West Virginia certified the following question to this Court by
an order dated December 3, 1992:
Does the West Virginia Legislature's
authorization of the 'West Virginia Minimum
Standards for Construction, Operation and
Maintenance of Jails' through the use of an
omnibus bill, which authorized numerous
legislative rules unrelated to one another,
contravene:
(a) Article VI, Section 30 of the West
Virginia Constitution [providing that no act
may embrace more than one object];
(b) Article VII, Section 14 of the West
Virginia Constitution [providing the
Governor's veto power]; or
(c) Article 3, Chapter 29A of the West
Virginia Code [the State Administrative
Procedures Act]?
II.
The first portion of the certified question in this case
pertains to whether or not the legislature's use of an "omnibus
bill" to authorize the legislative rules written by various
executive and administrative agencies violates W. Va. Const. art.
VI, § 30 which provides, in pertinent part: "No act hereafter
passed, shall embrace more than one object, and that shall be
expressed in the title."See footnote 2 We are concerned with the portion of
art. VI, § 30 which is known as the one-object or subject rule.See footnote 3
For reasons set forth below, we find that the use of the omnibus
bill to authorize legislative rules violates the one-object rule
expressed in W. Va. Const. art. VI, § 30.
We note that although the certified question specifically
pertains to the legislature's authorization of the "West Virginia
Minimum Standards for Construction, Operation and Maintenance of
Jails" (hereinafter Minimum Jail Standards rule), we find that the
legislature's authorization of all of the state agencies'
regulations through the use of an omnibus bill to be at issue.See footnote 4
A.
Initially, however, a brief examination of the
legislative history of the Minimum Jail Standards rule is necessary
as an example of how the legislature is authorizing our state
agencies' rules and regulations. Before the Minimum Jail Standards
rule was introduced in the legislature, the procedures outlined in
the State Administrative Procedures Act, W. Va. Code, 29A-1-1, et
seq., were followed.See footnote 5 Although the Minimum Jail Standards rule was
originally introduced in 1988 as S.B. 426, Journal of the Senate,
Second Regular Session of the 68th Legislature, February 4, 1988,
p. 279, and H.B. 4345, Journal of the House of Delegates, Second
Regular Session of the 68th Legislature, February 3, 1988, p. 316,
neither of those bills made it to the floor of the Senate or of the
House of Delegates. Instead, the Minimum Jail Standards rule
became part of S.B. 397 when the House of Delegates amended the
bill. S.B. 397 was originally introduced to authorize the Racing
Commission to promulgate a rule relating to thoroughbred racing.
However, after the bill was amended it was an omnibus bill which
encompassed authorization for all agency rules considered that
year. Journal of the House of Delegates, 2d Reg. Sess., March 8,
1988, pp. 1279-1313.
S.B. 397 was eventually passed on March 12, 1988.See footnote 6 Acts
of the Legislature of West Virginia, Second Regular Session of the
68th Legislature, 1988, chapter 112. The omnibus bill authorized
44 rules of many different agencies including the Minimum Jail
Standards rule.See footnote 7 The following is an excerpt from the omnibus bill
concerning the Minimum Jail Standards rule: " § 64-2-31(20)(9).
Jail and prison standards commission. The legislative rules filed
in the state register on the fifth day of November, one thousand
nine hundred eighty-seven, relating to the jail and prison
standards commission (West Virginia minimum standards for
construction, operation, and maintenance of jails) are authorized."
Acts of the Legislature, 2d Reg. Sess., 1988, chapter 112, at 805.
Therefore, the members of the legislature did not have the actual
rule before them when voting on the omnibus bill. Instead, the
omnibus bill referred the members of the legislature to the state
register for the contents of the rule.
Furthermore, when the agency's rule was to be amended,
the omnibus bill simply referred the members of the legislature to
a page and section number of the state register and explained the
deletions or additions without giving the entire text of the rule.
For example, the following is from a rule regarding the Attorney
General:
§ 64-2-47(14)(5). Attorney general.
The legislative rules filed in the state
register on the twenty-third day of September,
one thousand nine hundred eighty-seven,
modified by the attorney general to meet the
objections of the legislative rule-making
review committee and refiled in the state
register on the twenty-fifth day of November,
one thousand nine hundred eighty-seven,
relating to the attorney general
(administration of preneed burial contracts)
are authorized with the following amendments
set forth below:
On page 9, section 8.2 by striking the
words 'within thirty days after the death of a
contract beneficiary,' and inserting in lieu
thereof the following: 'On or before the
first day of January and the first day of July
of each year,' and after the word 'provided'
by striking the comma and inserting in lieu
thereof 'after the death of any contract
beneficiary during the previous six-month
period[.]'
Acts of the Legislature, 2d Reg. Sess., 1988, chapter 112, at 806-07. The text of the rules addressed in the omnibus bill are never
before the entire legislature, although the legislative rule-making
review committee should have the entire text before it. See W. Va.
Code, 29A-3-11 [1986].
The defendants argue that the omnibus rules legislation,
outlined above, violates the one-object rule of W. Va. Const. art.
VI, § 30 since the omnibus bill contains many unrelated legislative
regulations. The defendants point out that the fear is that the
legislature will pass the omnibus bill regarding the state
regulations because they agree with the majority of the regulations
even if they seriously disagree with one regulation. The
defendants argue that this is the evil which W. Va. Const. art. VI,
§ 30 attempts to avoid. The defendants also note that the bill
does not contain the text of the many regulations which makes it
more difficult for the legislators to know what may be contained in
the regulations or rules.
On the other hand, the plaintiffs argue that the bill
serves one necessary governmental function: the authorization of
legislative rules. Therefore, the omnibus bill only embraces one
object and does not violate W. Va. Const. art. VI, § 30. The
plaintiffs also argue that the omnibus bill poses no risk for
deception because the bill must have come from the administrative
agencies, have been subjected to the rigorous public comment and
review requirements of the State Administrative Procedures Act, W.
Va. Code, 29A-1-1, et seq., though the defendants argue that if the
legislative rule-making committee decides to amend the rule or
regulation the amendment does not go through the review
requirements of the State Administrative Procedures Act. See W.
Va. Code, 29A-3-11(d) [1986]. The plaintiffs also point out that
the regulations will have been individually studied by the
legislative rule-making review committee in order to ensure that
the regulations meet certain standards set forth in W. Va. Code,
29A-3-11 [1986]. Therefore, the plaintiffs contend that no further
review is necessary. We will view each of the parties' contentions
in light of the history of the one-object rule.
B.
The one-subject rule can be traced as far back as the
Romans. Michael W. Catalano, The Single Subject Rule: A Check on
Anti-Majoritarian Logrolling, 3 Emerging Issues St. Const. Law 77,
79 (1990). As of 1990, forty-three states in this country have
adopted some form of a one-subject rule in their constitutions.
Catalano, supra at 80. Although the purpose of the one-subject
rule has been expressed in different ways, one author has
succinctly stated the general purpose of the one-subject rule:
The primary and universally recognized
purpose of the one-subject rule is to prevent
log-rolling in the enactment of laws--the
practice of several minorities combining their
several proposals as different provisions of a
single bill and thus consolidating their votes
so that a majority is obtained for the omnibus
bill where perhaps no single proposal of each
minority could have obtained majority approval
separately.
Another stated purpose for the provision
is to prevent 'riders' from being attached to
bills that are popular and so certain of
adoption that the rider will secure adoption
not on its own merits, but on the merits of
the measure to which it is attached. This
stratagem seems to be but a variation of log-rolling.
Another purpose served by the one-subject
rule is to facilitate orderly legislative
procedure. By limiting each bill to a single
subject, the issues presented by each bill can
be better grasped and more intelligently
discussed.
Millard H. Ruud, No Law Shall Embrace More Than One Subject, 42
Minn. L. Rev. 389, 391 (1958) (footnotes omitted). Ruud points out
that it is not necessary for log-rolling to have actually occurred
since the one-object rule assumes that two objects were combined in
a single bill for the purpose of log-rolling. Ruud, supra at 448.
When debating whether or not to adopt W. Va. Const. art.
VI, § 30 during the West Virginia constitutional convention, a
member of the convention expressed the general purpose of the one-subject rule: "If you strike out this provision, you can towards
the heel of a session, take any bill, whether important or not, and
make it an omnibus to carry through all sorts of schemes, tacking
them on as amendments." 1 Debates and Proceedings of the First
Constitutional Convention of West Virginia (1861-63) 906 (Charles
H. Ambler, et al. eds.). Clearly, the constitutional framers of
this State thought it was important for the members of the
legislature to be fully aware of the subject upon which they were
voting. An informed legislature is even more important in modern
times considering the complexity of many rules and regulations.
Although this Court has not often had the opportunity to
address the one-subject rule, this Court did squarely face the one-subject rule issue in Simms v. Sawyers, 85 W. Va. 245, 101 S.E. 467
(1919).See footnote 8 In Simms this Court found that an act providing for a
charter for the city of Hinton and also creating the independent
school district of Hinton, embraced two separate subjects of
legislation in violation of W. Va. Const. art. VI, § 30. The fact
that both portions of the act involved the same city was not
sufficient to save the act. In arriving at its conclusion this
Court stated:
Where the Legislature undertakes to legislate
upon a particular subject for the
accomplishment of a certain object, it is
competent to embrace within one act all
regulations germane to the subject of
legislation which may be appropriate to
accomplish the object sought. It is only the
joining in one act of two separate subjects of
legislation which is inhibited, and not the
joining of many separate provisions touching
one subject, and having for their object the
accomplishment of one purpose.
Id. at 255, 101 S.E. at 471 (emphasis added).
This Court also addressed the one-object rule in State ex
rel. Brotherton in which it found that the budget bill, which
provides an expenditure plan for the operation of the government,
does not violate W. Va. Const. art. VI, § 30 since "all
appropriation matters contained therein are germane to the
budgetary process[.]" State ex rel. Brotherton v. Blankenship, 158
W. Va. 390, 403, 214 S.E.2d 467, 477 (1975).See footnote 9 This Court did point
out the limits of the use of the budget bill in Dadisman v. Moore,
181 W. Va. 779, 788, 384 S.E.2d 816, 825 (1988), as modified on
reh'g, in which this Court stated that the legislature cannot amend
substantive statutes with the budget bill.See footnote 10
This Court has used the term "germane" in Simms, supra,
and State ex rel. Brotherton, supra, to determine whether the one-subject rule has been violated. The term "germane" is the general
test used, and it has been defined as "in close relationship,
appropriate, relevant, or pertinent to the general subject."
Singer, supra § 17.03, at 9 (footnote omitted). The problem with
relying exclusively on the term "germane" to determine whether the
one-object rule has been violated was pointed out by the Supreme
Court of California which stated that "the [one-object] rule
obviously forbids joining disparate provisions which appear germane
only to topics of excessive generality such as 'government' or
'public welfare.'" Harbor v. Deukmejian, 742 P.2d 1290, 1303 (Cal.
1987), quoting Broshahan v. Brown, 651 P.2d 274 (1982).
Even with this background and the use of the term
"germane" by this Court it is still difficult to formulate a
standard which will enable us to immediately tell whether an act
violates the one-subject rule.See footnote 11
As Catalano, supra at 81, stated "[i]n determining
whether a particular law violates the Single Subject Rule, the
courts do not appear to use a common test. The courts have used a
variety of judicially formulated tests[.]" However, we approve of
the following general statement found in Sutherland Statutory
Construction:
If there is any reasonable basis for grouping
the various matters together, and if the
public will not be deceived, the act will be
sustained. No accurate mechanical rule may be
formulated by which the sufficiency of an act
in relation to its title may be determined.
Each case must be decided on its own peculiar
facts.
Singer, supra § 17.03, at 9 (footnotes omitted). Although the
statement above applies to the sufficiency of the title of an act,
we think it is equally applicable to the determination of whether
an act contains more than one object in violation of the one-object
rule.
C.
In the case before us, we must determine whether the use
of the omnibus bill to enact all of the state regulations violates
the one-subject rule. We agree that there is an argument that
there is a rational basis for grouping the rules and regulations of
the state administrative agencies. The grouping performs one
function: the authorization of legislative rules. We do question,
though, whether the topic is excessively general. However, the
more important question is whether this grouping violates the very
purpose of the one-subject rule. We think it does.
In modern times the rules and regulations promulgated by
administrative agencies have become increasingly complex. For
example, the legislative rules governing the board of coal mine
health and safety address various issues such as the moving of
mining equipment, longwall mining, the use of automated temporary
roof supports, and unused mines. 36 W. Va. C.S.R. § 1-1.1, et seq.
The legislative rules of the air pollution control commission also
address various complex issues such as air pollution from coal
refuse disposal areas, air pollution from manufacturing process
operations, and emission standards for hazardous air pollutants.
45 W. Va. C.S.R. § 1-1.1, et seq. The danger of using an omnibus
bill to pass these complex regulations is that it would be very
easy for the legislative rule-making committee to amend a rule or
regulation under the pressure of interested groups. The amendment
would not be subject to the strict requirements of the State
Administrative Procedure Act nor would there necessarily be input
from the agency which is charged with the expertise in that
particular area. See W. Va. Code, 29A-3-11 [1986].See footnote 12
Because the legislative rules govern such important and
occasionally controversial issues, we believe it is extremely
important that the members of the legislature be fully aware of the
new rules or changes to the existing rules when voting.
Especially, since our legislature does not simply review the rules
recommended by the agencies, but, instead gives our rules the same
effect as statutes. See State ex rel. Barker v. Manchin, 167 W.
Va. 155, 169, 279 S.E.2d 622, 631 (1981).
We understand the burden that will be placed on the
legislature by our holding that the use of the omnibus bill to pass
our legislative rules violates the West Virginia Constitution.
However, in State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 778-79
(Alaska 1980) the Supreme Court of Alaska pointed out that "the
question of whether the legislature might perform a task more
efficiently if it did not have to follow [the constitution] is
essentially irrelevant. Since [the constitution] applies, the
question of whether efficiency takes primacy over other goals must
be taken to have been answered by our constitutional framers."
Furthermore, we have stated that:
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.
Syllabus point 2, State ex rel. Barker, supra. Accordingly, we
hold that if there is a reasonable basis for the grouping of
various matters in a legislative bill, and if the grouping will not
lead to logrolling or other deceiving tactics, then the one-object
rule in W. Va. Const. art. VI, § 30 is not violated; however, the
use of an omnibus bill to authorize legislative rules violates the
one-object rule found in W. Va. Const. art. VI, § 30 because the
use of the omnibus bill to authorize legislative rules can lead to
logrolling or other deceiving tactics. In the future, each
agencies' proposed set of rules and regulations should have a
separate bill number and should include the entire text of the
rules and regulations.
D.
However, we recognize that chaos would result if we hold
that all of the legislative rules are void since the omnibus bills
authorizing the rules violate the one-object rule of our
constitution. Therefore, we would like to address an issue
discussed by both parties in their briefs: whether our holding
regarding the omnibus bill is to be applied prospectively.
However, the question of whether our holding will apply
prospectively was not part of the question certified to us by the
federal district court. So, first we must address whether or not
we can reformulate a question certified to us by the federal
district court.
The Uniform Certification of Questions of Law Act found
in W. Va. Code, 51-1A-1, et seq. empowers this Court to answer
questions certified to it from the federal courts or other state
courts. The act does not specifically address the question of
whether or not this Court has the power to modify the questions
certified to it. However, the Supreme Court of Oregon pointed out
that the majority rule is that the deciding courts have "the
discretion to reframe questions and [are] not bound to answer the
question as certified." Western Helicopter Services, Inc. v.
Rogerson Aircraft Corp., 811 P.2d 627, 633 (Or. 1991). See
Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6 (5th Cir. 1968);
Meckert v. Transamerica Insurance Co., 742 F.2d 505, 507 (9th Cir.
1984); Walters v. Inexco Oil Co., 440 So. 2d 268, 272 (Miss. 1983);
17A Charles A. Wright et al., Federal Practice and Procedure, §
4248, at 178 (2nd ed. 1988). But see Givens v. Anchor Packing,
Inc., 466 N.W.2d 771, 775-76 (Neb. 1991).
Scholars have pointed out the importance of giving the
deciding court the discretion of reformulating the questions
certified to it:
Regardless of the clarity of the record,
facts, and issues certified, the answering
court must have the power to reformulate the
questions posed. Although the court should
not answer questions unrelated to the case at
hand, the answering court should have the same
freedom to analyze the factual circumstances
that it would have if the entire case were
before the court. Indeed, the ability of the
answering court to reshape or add to the
issues is necessary to further the goals of
certification. The answering court may be
best situated to frame the question for
precedential value and to control the
development of its laws. If state courts take
offense at a poorly framed question, they may
miss a genuine opportunity to settle state law
on a particular point.
John B. Corr & Ira P. Robbins, Interjurisdictional Certification
and Choice of Law, 41 Vand. L. Rev. 411, 426 (1988) (footnote
omitted).
We agree with the above statement. Furthermore, we have
found that "we retain some flexibility in determining how and to
what extent . . . [a certified question from a circuit court to us]
will be answered." City of Fairmont v. Retail Wholesale & Dept.
Store Union, 166 W. Va. 1, 3-4, 283 S.E.2d 589, 590 (1980), citing
West Virginia Water Service Co. v. Cunningham, 143 W. Va. 1, 98 S.E.2d 891 (1957). See also Belcher v. Goins, 184 W. Va. 395, 398
n. 2, 400 S.E.2d 830, 833 n. 2 (1990); State Automobile Mut. Ins.
Co. v. Youler, 183 W. Va. 556, 561 n. 5, 396 S.E.2d 737, 742 n. 5
(1990); Gardner v. Norfolk & Western Ry. Co., 179 W. Va. 724, 726-27 n. 6, 372 S.E.2d 786, 788-89 n. 6 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1132, 103 L. Ed. 2d 193 (1989). However, we have
not had the opportunity to apply this finding to questions
certified under the Uniform Certification of Questions of Law Act
found in W. Va. Code, 51-1A-1, et seq.
Therefore, we hold that when a certified question is not
framed so that this Court is able to fully address the law which is
involved in the question, then this Court retains the power to
reformulate questions certified to it under both the Uniform
Certification of Questions of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va. Code, 58-5-2 [1967], the statute relating to
certified questions from a circuit court of this State to this
Court. Accordingly, another question must be answered. Should our
holding that the use of an omnibus bill to authorize legislative
rules is unconstitutional be applied prospectively?
E.
At the outset we would like to point out that this Court
has previously addressed the doctrine of retroactivity in detail in
Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879
(1979).See footnote 13 In the case before us we are concerned with whether our
holding should apply prospectively and not with the doctrine of
retroactivity. However, this Court pointed out in Bradley "that
the general principles of retroactive or prospective application of
an overruling decision are essentially the same." Bradley, 163 W.
Va. at 347, 256 S.E.2d at 887, citing Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). Therefore, we
will examine the analysis of this Court in Bradley.
As this Court pointed out in Bradley, the United States
Supreme Court set forth the following test regarding retroactivity
in the civil context:
First, the decision to be applied
nonretroactively must establish a new
principle of law, either by overruling clear
past precedent on which litigants may have
relied, . . . or by deciding an issue of first
impression whose resolution was not clearly
foreshadowed. . . . Second, . . . we must . .
. weigh the merits and demerits in each case
by looking to the prior history of the rule in
question, its purpose and effect, and whether
retrospective operation will further or retard
its operation. . . . Finally, we [must]
weig[h] the inequity imposed by retroactive
application, for '[w]here a decision of this
Court could produce substantial inequitable
results if applied retroactively, there is
ample basis in our cases for avoiding the
"injustice or hardship" by a holding of
nonretroactivity.'
Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S. Ct. 349, 355, 30 L. Ed. 2d 296, 306 (1971) (citations omitted). This Court, however, formulated its own test to determine whether to extend
full retroactivity in civil cases which it set forth in syllabus
point 5 of Bradley, supra:
In determining whether to extend full
retroactivity, the following factors are to be
considered: First, the nature of the
substantive issue overruled must be
determined. If the issue involves a
traditionally settled area of law, such as
contracts or property as distinguished from
torts, and the new rule was not clearly
foreshadowed, then retroactivity is less
justified. Second, where the overruled
decision deals with procedural law rather than
substantive, retroactivity ordinarily will be
more readily accorded. Third, common law
decisions, when overruled, may result in the
overruling decision being given retroactive
effect, since the substantive issue usually
has a narrower impact and is likely to involve
fewer parties. Fourth, where, on the other
hand, substantial public issues are involved,
arising from statutory or constitutional
interpretations that represent a clear
departure from prior precedent, prospective
application will ordinarily be favored.
Fifth, the more radically the new decision
departs from previous substantive law, the
greater the need for limiting retroactivity.
Finally, this Court will also look to the
precedent of other courts which have
determined the retroactive/prospective
question in the same area of the law in their
overruling decisions.
(emphasis added). Although the plaintiffs correctly point out that
the analysis established by Bradley is not directly on point since
the question in the case before us does not involve overruling any
prior authority, portions of the analysis can be used to help us
determine whether or not our holding today should apply
prospectively.
In Bradley, we pointed out that "[i]n any attempt to list
factors, it should be stressed that not all factors always carry
the same weight, for the weight of any given factor may vary with
the facts of a given case." Id. at 349, 256 S.E.2d at 888-89. The
fourth factor of the analysis outlined in Bradley is most
applicable to the case before us. The legislative rules involve
substantial public issues, and our constitutional interpretation of
the use of the omnibus bill was not foreshadowed. Therefore,
prospective application of our decision is favored.
Furthermore, our reasoning is consistent with the United
States Supreme Court's analysis of the issue of retroactivity,
although, as we pointed out in Devrnja v. West Virginia Bd. of
Medicine, 185 W. Va. 594, 408 S.E.2d 346 (1991), we are not
obligated to follow the federal scheme when we are dealing with a
state constitutional question. However, we do find the reasoning
of the United States Supreme Court to be persuasive on this issue.
Therefore, we will examine the federal scheme.
The United States Supreme Court has "rejected the idea
that all new interpretations of the Constitution must be
considered
always to have been the law and that prior constructions to the
contrary must always be ignored. . . . [The United States Supreme
Court has] held to the course that there is no inflexible
constitutional rule requiring in all circumstances either absolute
retroactivity or complete prospectivity for decisions construing
the broad language of the Bill of Rights." Williams v. United
States, 401 U.S. 646, 651, 91 S. Ct. 1148, 1151, 28 L. Ed. 2d 388,
394 (1971) (footnote omitted). Although the case before us does
not involve the Bill of Rights, it does involve the interpretation
of a constitutional provision.
The United States Supreme Court has made it clear that in
certain circumstances a decision may be purely prospective. In
England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411,
84 S. Ct. 461, 11 L. Ed. 2d 440 (1964), the United States Supreme
Court declined to apply its new rule to the appellants in that
particular case since the appellants relied on prior law. The new
rule was that once a state court answers a plaintiff's federal
claim, after a district court by an abstention order remits a party
to the state court, then a district court will not rehear the case.
In Lemon v. Kurtzman, 411 U.S. 192, 93 S. Ct. 1463, 36 L. Ed. 2d 151 (1973) (Lemon II), the United States Supreme Court again
refused to make its ruling retroactive. In a previous ruling,
Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745
(1971) (Lemon I), judgment aff'd, Lemon II, supra, the United
States Supreme Court held that the reimbursements to parochial
schools for secular education services violated the First
Amendment's Establishment Clause. However, in Lemon II the United
States Supreme Court permitted Pennsylvania to reimburse parochial
schools for the secular education services which were completed
before the Court held the reimbursements unconstitutional. The
United States Supreme Court noted that "[o]ffsetting the remote
possibility of constitutional harm from allowing the State to keep
its bargain are the expenses incurred by the schools in reliance on
the state statute inviting the contracts made and authorizing
reimbursement for past services performed by the schools." Lemon
II, 411 U.S. at 203, 93 S. Ct. at 1471, 36 L. Ed. 2d at 163
(footnote omitted).
Furthermore, the United States Supreme Court has given
great weight to whether prospective application of its new rule
overly burdens the government's ability to carry out its function:
In determining whether a decision should
be applied retroactively, this Court has
consistently given great weight to the
reliance interests of all parties affected by
changes in the law. See, e.g., Cipriano v.
City of Houma, 395 U.S. 701, 706 (1969)
('Significant hardships would be imposed on
cities, bondholders, and other[s] connected
with municipal utilities if our decision today
were given full retroactive effect'). To the
extent that retrospective application of a
decision burdens a government's ability to
plan or carry out its programs, the
application injures all of the government's
constituents. These concerns have long
informed the Court's retroactivity decisions.
The Court has used the technique of
prospective overruling (accompanied by a stay
of judgment) to avoid disabling Congress'
bankruptcy scheme, see, e.g., Northern
Pipeline Construction Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 88 (1982), and has
refused to invalidate retrospectively the
administrative actions and decisions of the
Federal Election Commission, see Buckley v.
Valeo, 424 U.S. 1, 142-143 (1976). The Court
has also declined to provide retrospective
remedies which would substantially disrupt
governmental programs and functions. See,
e.g., Lemon v. Kurtzman, 411 U.S. 192, 209
(1973) (Lemon II) ('[S]tate officials and
those with whom they deal are entitled to rely
on a presumptively valid state statute,
enacted in good faith and by no means plainly
unlawful') (plurality opinion); see also
Reynolds v. Sims, 377 U.S. 533, 585 (1964)
('[U]nder certain circumstances, such as where
an impending election is imminent and a
State's election machinery is already in
progress, equitable considerations might
justify a court in withholding the granting of
immediately effective relief in a legislative
apportionment case, even though the existing
apportionment scheme was found invalid');
Allen v. State Bd. of Elections, 393 U.S. 544
(1969). The retrospective invalidation of a
state tax that had been lawful under then-current precedents of this Court threatens a
similar disruption of governmental operations.
Therefore, our refusal here to retroactively
invalidate legislation that was lawful when
enacted is in accord with our previous
determinations of how best to give effect to
new constitutional decisions.
American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 185-86, 110 S. Ct. 2323, 2334-35, 110 L. Ed. 2d 148, 164 (1990).See footnote 14 In
American Trucking Associations, supra, the United States Supreme
Court found in a plurality opinion that a rule established in
American Trucking Association, Inc. v. Scheiner, 483 U.S. 266, 107 S. Ct. 2829, 97 L. Ed. 2d 226 (1987) that flat highway-use taxes
violated the commerce clause was inapplicable to pre-Scheiner
circumstances but was applicable to post-Scheiner circumstances.
Although we continue to recognize that there is no one
rule which will answer questions regarding the issue of
retroactivity in every case, we find that based on our analysis in
Bradley, supra, and the analysis of decisions by the United States
Supreme Court that when this Court issues an interpretation of the
W. Va. Const. which was clearly not foreshadowed, and when
retroactive application of the new interpretation would excessively
burden the government's ability to carry out its functions, then
the new constitutional interpretation will apply prospectively.
In the case before us, our holding that the use of the
omnibus bill to authorize legislative rules violates the one-object
rule found in W. Va. Const. art. VI, § 30 was clearly not
foreshadowed. Furthermore, if we applied our holding today, it
would invalidate hundreds of legislative rules which regulate many
different subjects ranging from air pollution to jails. Our
governmental agencies would be unable to carry out their functions.
Therefore, we will apply our holding in this case prospectively.
III.
In light of our resolution of the first portion of the
certified question, we decline to address the second and third
portions of the certified question.
IV.
The certified question having been answered, this case is
dismissed from the docket of this Court, and remanded to the United
States District Court for the Southern District of West Virginia
for proceedings consistent with this opinion.
Certified question answered.
Footnote: 1 Although not an issue raised by the parties, we would
like to point out that "[w]hen declaratory relief is sought, . . .
if the statute, ordinance or franchise is alleged to be
unconstitutional, the attorney general of the State shall also be
served with a copy of the proceeding and be entitled to be heard."
W. Va. Code, 55-13-11 [1941].
Footnote: 2 The full text of W. Va. Const. art. VI, § 30 reads as
follows:
§ 30. No act hereafter passed, shall
embrace more than one object, and that shall
be expressed in the title. But if any object
shall be embraced in an act which is not so
expressed, the act shall be void only as to so
much thereof, as shall not be so expressed,
and no law shall be revived, or amended, by
reference to its title only; but the law
revived, or the section amended, shall be
inserted at large, in the new act. And no act
of the legislature, except such as may be
passed at the first session under this
Constitution, shall take effect until the
expiration of ninety days after its passage,
unless the legislature shall by a vote of two
thirds of the members elected to each house,
taken by yeas and nays, otherwise direct.
Footnote: 3 Most states use the term "subject" rather than "object"
in their constitutional provision prohibiting a bill from
containing unrelated provisions. Millard H. Ruud, No Law Shall
Embrace More Than One Subject, 42 Minn. L. Rev. 389, 390 (1958).
Although courts have differed over the effect of the use of the two
terms, some courts have defined the two terms so that in substance
the two terms are identical. 1A Norman J. Singer, Sutherland
Statutory Construction § 17.01, at 2-3 (4th ed. 1985). In fact,
Millard H. Ruud stated in his article that "[b]ecause no real
difference was discovered in the courts' handling of the question
depending upon whether the unity requirement was stated in terms of
'subject' or 'object,' the cases are not separately treated in the
. . . discussion." Ruud, supra at 396 (footnote omitted).
Therefore, we find that the terms are synonymous since the
constitutional provisions containing the terms were enacted for the
same basic purpose, and we will use the terms interchangeably in
this opinion.
Footnote: 4 We will address our authority to modify a certified
question from the federal courts later in this opinion.
Footnote: 5 The elaborate rule-making procedures for the agencies in
the Administrative Procedures Act are set forth in W. Va. Code,
29A-3-5 through 29A-3-9. As the plaintiffs point out, "[t]he
procedures include public notice, publication of proposed rules,
opportunity for public comment and/or a public hearing, agency
review of public comments and/or testimony, publication of final
proposed rules and of explanations for any changes."
Once the proposed rule has gone through the above
procedures, then it is referred to the legislative rule-making
review committee which reports its recommendation and the proposed
rule to the legislature. See W. Va. Code, 29A-3-11 and 29A-3-12
[1986].
W. Va. Code, 29A-3-11 [1986] outlines the duties of the legislative rule-making review committee. Once the agency has submitted the full text of the legislative rule with any deletions or additions clearly marked, the committee reviews seven matters: whether the agency exceeded statutory authority when making the
proposal; whether the proposed rule conforms with the legislative
intent; whether the proposed rule conflicts with another statute or
rule; whether the proposed rule is necessary; whether the proposed
rule is reasonable; whether the proposed rule can be made more
understandable to the public; and whether the proposed rule was
promulgated in compliance with the Administrative Procedures Act.
After the legislative rule-making committee reviews the rule, the
committee makes a recommendation to the legislature with the
committee's deletions or additions. The members of the legislature
then by act may authorize an agency to adopt the rule with any
amendments designated by the legislature. W. Va. Code, 29A-3-12
[1986].
Footnote: 6 It is represented that the Minimum Jail Standards rule
was amended in 1989 and renumbered in the W. Va. Code in 1990;
however, since we are only concerned with the use of the omnibus
bill we will not analyze the entire legislative history of the
Minimum Jail Standards rule.
Footnote: 7 The omnibus bill which authorizes the 44 rules is too
lengthy for us to reproduce in its entirety in the text of this
opinion. However, below we have quoted portions of the omnibus
bill found in the Acts of the Legislature, 2d Reg. Sess., 1988,
chapter 112, at 773-76, S.B. 397 in order to give the reader an
idea of what subjects the omnibus bill encompasses:
[The omnibus bill is described as an act]
authorizing the commissioner of commerce to
promulgate certain legislative rules relating
to the public use of West Virginia state
parks, forests and hunting and fishing areas,
as modified with certain amendments thereto;
. . . authorizing the state tax commissioner
to promulgate certain legislative rules
relating to appraisal of property for periodic
statewide reappraisals for ad valorem property
tax purposes, as modified; . . . authorizing
the department of natural resources to
promulgate certain legislative rules relating
to hazardous waste management; . . .
authorizing the commissioner of labor to
promulgate certain legislative rules relating
to the West Virginia occupational safety and
health act, adoption of federal standards;
. . . authorizing the jail and prison
standards commission to promulgate legislative
rules relating to West Virginia minimum
standards for construction, operation and
maintenance of jails;. . . [and] authorizing
the insurance commissioner to promulgate
certain legislative rules relating to medical
malpractice annual reporting requirements[.]
Footnote: 8 This Court has more frequently addressed whether the
title of an act sufficiently indicates the subject matter of an act
so as to be constitutional under W. Va. Const. art. VI, § 30.
State ex rel. Walton v. Casey, 179 W. Va. 485, 488 n. 9, 370 S.E.2d 141, 144 n. 9 (1988).
Footnote: 9 Ruud, supra at 437, points out that "[i]t is not
seriously argued now that a general appropriations act violates the
general one-subject rule; an act making appropriations for the
operation of the various departments and agencies of government
deals with a single subject even though a large number of
appropriation items concerning the entire range of governmental
programs is included."
Footnote: 10 This Court has also addressed the one-object issue in
Elite Laundry Co. v. Dunn, 126 W. Va. 858, 30 S.E.2d 454 (1944), in
which this Court stated that the one-object rule cannot be enforced
with the same rigor when an act recodifies all of the state's
statutory law.
Footnote: 11 Even a review of other jurisdictions which have
addressed the one-object rule does not give us a clear indication
of how the case before us should be resolved. For example, the
following cases have found that the one-subject rule has been
violated: Litchfield Elementary School District No. 79 of Maricopa
County v. Babbit, 608 P.2d 792 (Ariz. Ct. App. 1980) (statute
violated one-subject rule and could not be deemed a general
appropriation bill since it provided for executive aircraft for the
Department of Public Safety and a mobile dental clinic to be
operated by the dental health bureau among other things); Harbor,
supra (a bill regarding fiscal affairs only appears germane because
of the excessive generality of the topic, thus, the one-subject
rule is violated); In Re House Bill No. 1353, 738 P.2d 371 (Colo.
1987) (state revenue bill covered disparate subjects such as
imposition of charge against accounts of inmates for medical visits
and imposition of surcharge on insurance carriers based on workers'
compensation insurance premiums received thus violating the single-subject rule); and Porten Sullivan Corp. v. State, 568 A.2d 1111
(Md. 1990) (an act imposing ethical requirements on county council
members and others and extending council's authority to impose
energy and transfer taxes violates one-subject rule).
The following are cases which have found that the one-subject rule has not been violated: State v. Wagstaff, 775 P.2d 1130 (Ariz. Ct. App. 1988), decision approved as modified, 794 P.2d 118 (Ariz. 1990) (an act which concerns crimes against children, prosecution of crimes against children, and protection of children does not violate the one-subject rule); Calfarm Ins. Co. v. Deukmejian, 771 P.2d 1247 (Cal. 1989) (all provisions of Proposition 103 relate to the cost of insurance or the regulation of insurance; therefore, the provisions are reasonably germane to the general purpose of the proposition); Sunbehm Gas, Inc. v. Conrad, 310 N.W.2d 766 (N.D. 1981) (initiative tax measure involves the imposition and administration of the oil extraction tax and does not violate the one-subject rule); and State Finance Committee v. O'Brien, 711 P.2d 993 (Wash. 1986) (a bill authorizing the issuance of bonds for various capital projects does not violate the one-subject rule). Footnote: 12 W. Va. Code, 29A-3-11(d) [1986] does not specifically provide a mechanism for the amendments to undergo the procedures of public review, etc. outlined in W. Va. Code, 29A-1-1, et seq. Footnote: 13 Justice Miller gives a thorough analysis of the retroactivity issue in Bradley, supra (which involves the issue of retroactivity in a civil context), and in Adkins v. Leverette, 161 W. Va. 14, 239 S.E.2d 496 (1977) (which involved the issue of
retroactivity in a criminal context). Justice Miller stated that
this Court would not attempt to formulate a "single answer to
questions that may arise on the issue of retroactivity." Adkins,
161 W. Va. at 20, 239 S.E.2d at 499.
Footnote: 14 We pointed out the following in Devrnja, 185 W. Va. at
597, 408 S.E.2d at 349:
Whether Chevron still stands is a
question whose answer may be sought in the
Supreme Court's more recent plurality opinions
in American Trucking Association, Inc. v.
Smith, 496 U.S. 167, 110 S. Ct. 2323, 110 L. Ed. 2d 148 (1990), and James Beam Distilling
Co. v. Georgia, ___ U.S. ___, 111 S. Ct. 2439,
115 L. Ed. 2d 481, (1991). We decline to
unravel this tangled federal scheme because we
deal with a state adjudication based on state
constitutional grounds.
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