WV Education v. Consolidated Public Retirement
Annotate this Case
January 1995 Term
_____________
NO. 22648
_____________
WEST VIRGINIA EDUCATION ASSOCIATION;
KAYETTA MEADOWS AS PRESIDENT, ET AL.,
Appellees
v.
THE CONSOLIDATED PUBLIC RETIREMENT BOARD; GLEN GAINER, II,
AUDITOR, AND GASTON CAPERTON, GOVERNOR, AS MEMBERS OF
THE CONSOLIDATED PUBLIC RETIREMENT BOARD,
Appellants
KEITH BURDETTE, PRESIDENT OF THE STATE SENATE, ET AL.; AND
ROBERT C. CHAMBERS, SPEAKER OF THE HOUSE OF DELEGATES, ET AL.,
Appellants
AND
EULAH MAY FLEMING, A MEMBER OF CONCERNED
PRINCIPALS AND TEACHERS' ASSOCIATION, ETC.,
Appellee
v.
GASTON CAPERTON, GOVERNOR, ET AL.,
Appellees
_____________
NO. 22649
_____________
WEST VIRGINIA EDUCATION ASSOCIATION;
KAYETTA MEADOWS AS PRESIDENT, ET AL.,
Appellees
v.
THE CONSOLIDATED PUBLIC RETIREMENT BOARD; GLEN GAINER, II,
AUDITOR, AND GASTON CAPERTON, GOVERNOR, AS MEMBERS OF THE
CONSOLIDATED PUBLIC RETIREMENT BOARD; KEITH BURDETTE, PRESIDENT
OF THE STATE SENATE, ET AL.; AND ROBERT C. CHAMBERS,
SPEAKER OF THE HOUSE OF DELEGATES, ET AL.,
Appellants
AND
EULAH MAY FLEMING, A MEMBER OF CONCERNED
PRINCIPALS AND TEACHERS' ASSOCIATION, ETC.,
Appellee
v.
GASTON CAPERTON, GOVERNOR, ET AL.,
Appellees
_____________
NO. 22650
_____________
WEST VIRGINIA EDUCATION ASSOCIATION;
KAYETTA MEADOWS AS PRESIDENT, ET AL.,
Appellees
v.
THE CONSOLIDATED PUBLIC RETIREMENT BOARD;
GASTON CAPERTON, GOVERNOR, AS A MEMBER OF THE
CONSOLIDATED PUBLIC RETIREMENT BOARD;
KEITH BURDETTE, PRESIDENT OF THE STATE SENATE, ET AL.; AND
ROBERT C. CHAMBERS, SPEAKER OF THE HOUSE OF DELEGATES, ET AL.,
Appellees
GLEN GAINER, AUDITOR, AND AS A MEMBER OF THE
CONSOLIDATED PUBLIC RETIREMENT BOARD,
Appellant,
AND
EULAH MAY FLEMING, A MEMBER OF CONCERNED
PRINCIPALS AND TEACHERS' ASSOCIATION, ETC.,
Appellee
v.
GASTON CAPERTON, GOVERNOR, ET AL.,
Appellees
_____________
NO. 22651
_____________
WEST VIRGINIA EDUCATION ASSOCIATION;
KAYETTA MEADOWS AS PRESIDENT, ET AL.,
Appellees
v.
GLEN GAINER, II, AUDITOR, AND GASTON CAPERTON, GOVERNOR,
AS MEMBERS OF THE CONSOLIDATED PUBLIC RETIREMENT BOARD;
KEITH BURDETTE, PRESIDENT OF THE STATE SENATE, ET AL.; AND
ROBERT C. CHAMBERS, SPEAKER OF THE HOUSE OF DELEGATES, ET AL.,
Appellees
THE CONSOLIDATED PUBLIC RETIREMENT BOARD,
Appellant
AND
EULAH MAY FLEMING, A MEMBER OF CONCERNED
PRINCIPALS AND TEACHERS' ASSOCIATION, ETC.,
Appellee
v.
GASTON CAPERTON, GOVERNOR, ET AL.,
Appellees
___________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable, A. Andrew MacQueen, Judge
Civil Action Nos. 89-Misc-18 and 89-C-261
VACATED, IN PART; AFFIRMED, IN PART; AND
REVERSED AND REMANDED WITH DIRECTIONS, IN PART
___________________________________________________________
Submitted: June 27, 1995
Filed: July 13, 1995
Webster J. Arceneaux, III, Esq.
Charleston, West Virginia
Attorney for West Virginia Education
Association and Kayetta Meadows
Kenneth E. Webb, Jr., Esq.
Charleston, West Virginia
Attorney for The Consolidated Public
Retirement Board
M. E. Mowery, Esq.
Jennifer Walker, Esq.
Charleston, West Virginia
Attorneys for Keith Burdette
and Robert C. Chambers
Robert Bland, Esq.
Charleston, West Virginia
Attorney for Eulah May Fleming
Darrell V. McGraw, Jr., Esq.
Attorney General
Silas B. Taylor, Esq.
Senior Deputy Attorney General
Charleston, West Virginia
Attorneys for Glen Gainer, II, Auditor
Jan L. Fox, Esq.
Charleston, West Virginia
Attorney for Gaston Caperton, Governor
JUSTICE RECHT delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "The realization and protection of public employees'
pension property rights is a constitutional obligation of the
State. The State cannot divest the plan participants of their
rights except by due process, although prospective modifications
which do not run afoul of the federal or state impairment clauses
are possible." Syllabus Point 18, Dadisman v. Moore, 181 W. Va.
779, 384 S.E.2d 816 (1989).
2. In the same manner that a public employee's pension
right is constitutionally protected, the same constitutional
protection is hereby afforded the property right of a contractual
nature created by the State Teachers Retirement System in W. Va.
Code 18-7A-1 (1941) et seq.
3. The inadequate funding of the Teachers Retirement
System is invalid since it violates the prohibition against
impairment of contractual rights contained in the federal
constitution, U.S. Const. art. I, § 10, cl. 1, and in the state
constitution, W. Va. Const. art. III, § 4.
4. W. Va. Code 18-9A-6a(c) (1994) (Senate Bill 1000)
represents a "valid and recognizable supervening circumstance"
which commands that there be a declination to decide the issue
relating to the measures to correct the unfunded liability of the
Teachers Retirement System since that issue has lost its
"controversial vitality-- it is moot." State v. Gleason, 404 A.2d 573, 578 (Me. 1979), cited with approval in Israel by Israel v.
West Virginia Secondary Schools Activities Commission, 182 W. Va.
454, 457, 388 S.E.2d 480, 483 (1989).
5. "Moot questions or abstract propositions, the
decision of which would avail nothing in the determination of
controverted rights of persons or of property, are not properly
cognizable by a court." Syllabus Point 1, State ex rel. Lilly v.
Carter, 63 W. Va. 684, 60 S.E. 873 (1908).
6. "Even though an issue may be technically moot, it
still may be deserving of judicial resolution by meeting one or
more of the following criteria: First, the court will determine
whether sufficient collateral consequences will result from
determination of the questions presented so as to justify
relief. . . . Second, while technically moot in the immediate
context, questions of great public interest may nevertheless be
addressed for the future guidance of the bar and of the
public. . . . Third, issues which may be repeatedly presented to
the trial court, yet escape review at the appellate level because
of their fleeting and determinate nature, may appropriately be
decided. . . ." Israel by Israel v. West Virginia Secondary
Schools Activity Commission, 182 W. Va. 454, 457, 388 S.E.2d 480,
483 (1989).
7. At any time that there may be an impairment of
Senate Bill 1000 [W. Va. Code 18-9A-6a(c) (1994)], so that the
actuarial soundness of the Teachers Retirement System is imperiled, then the issue relating to unfunded liability may be resurrected
and presented to the circuit court.
8. All contributions, including employer contributions
to a public employment retirement plan, become part of the corpus
of that pension trust and are not thereafter to be considered state
funds available for use for any other purpose other than that for
which the monies were entrusted. Dadisman v. Moore, 181 W. Va.
779, 793, 384 S.E.2d 816, 830 (1989).
9. The funds of the Teacher Retirement System trust are
an equitable estate, property held in common for the benefit of
each member and retirant, and dedicated to private ends. The trust
funds are not taxpayers' money. The trust funds have been earned
by plan participants for the benefit of the trust, thus, the funds
are not public property. Any use by the legislature of the Teacher
Retirement System trust funds for a purpose unrelated to that for
which the contributions were intrusted is an adverse modification
of vested rights of the Teacher Retirement System participants and
constitutes an expropriation.
10. Where a public official has deliberately and
knowingly refused to exercise a clear, legal duty a presumption
exists in favor of an award of attorneys' fees and expenses unless
extraordinary circumstances indicate an award would be
inappropriate, then attorneys' fees and expenses would be allowed.
State of West Virginia ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, ___
W. Va. ___, ___, 458 S.E.2d 88, ___ (1995).
11. Where a public official has failed to exercise a
clear, legal duty, although the failure was not the result of a
decision to knowingly disregard a legal command, there is no
presumption in favor of an award of attorneys' fees with the
following factors to be considered in whether or not to award
attorneys' fees and expenses and in what amount: (a) the relative
clarity by which the legal duty was established; (b) whether the
ruling promoted the general public interest or merely protected the
private interest of the petitioner for a small group of
individuals; and (c) whether the petitioner has adequate financial
resources such that it could afford to protect its own interests in
court and as between the government and the petitioner. State of
West Virginia ex rel. West Virginia Highlands Conservancy, Inc. v.
West Virginia Division of Environmental Protection, ___ W. Va. ___,
___, 458 S.E.2d 88, ___ (1995).
Recht, Justice:
I
INTRODUCTION
In 1989, the West Virginia Education Association,
Kayetta Meadows, President of the West Virginia Education
Association and an active teacher member of the Teachers Retirement
System, Charles Moses, a retired member of the Teachers Retirement
System, and Eulah Mae Fleming, a member of Concerned Principals and
Teachers Association of West Virginia Teachers Retirement System
(hereinafter petitioners) filed separate actions in the Circuit
Court of Kanawha CountySee footnote 1 alleging that the State of West Virginia
through Governor Gaston Caperton, Earl Ray Tomblin,See footnote 2 President of
the State Senate for and on behalf of himself and the other members
of the State Senate, and Robert C. Chambers, Speaker of the House
of Delegates for and on behalf of himself and the other members of
the House of Delegates, Glen Gainer, Auditor and the members of the
Consolidated Public Retirement Board (hereinafter respondents) had
administered the Teachers Retirement System in an actuarially unsound manner contrary to the sanctions contained in W.Va. Const.
art. III, § 4, which prohibits any law impairing contractual
obligations.
On April 21, 1994, the Circuit Court of Kanawha County
entered a final order: (1) finding a writ of mandamus was
appropriate; (2) converting a temporary injunction into a permanent
injunction restraining the payment of monies from the Teacher
Retirement System to the Public Employees Insurance Agency (PEIA);
(3) dismissing the civil action, without prejudice, with leave to
reactivate upon the recurrence of specified events; and
(4) awarding attorneys fees and expenses to the petitioners.
Respondents appeal that order.
II
HISTORICAL OVERVIEW OF THE
STATE TEACHER RETIREMENT SYSTEM
The "State Teacher Retirement System" was created in 1941
by the West Virginia Legislature pursuant to W. Va. Code 18-7A-1
(1941) et seq.See footnote 3 By 1994, the membership of the West Virginia Teachers Retirement System was composed of 33,262 active members,
21,992 retirees and beneficiaries and 5,943 terminated members.See footnote 4
The Teacher Retirement System is divided and administered
in five separate trust funds: (a) Teacher Accumulation Fund,See footnote 5 (b) Employers Accumulation Fund,See footnote 6 (c) Benefit Fund,See footnote 7 (d) Reserve
Fund,See footnote 8 and (e) Expense Fund.See footnote 9 W. Va. Code 18-7A-18 (1993).
The original intent of the Teachers Retirement System was
that funds from the Teachers Accumulation Fund and matching
Employers Accumulation Fund would not be dispersed until the person
retires, dies or in the case of Teachers Accumulation Fund, a
person withdrew their money. W. Va. Code 18-7A-18 (1955) and
W. Va. Code 18-7A-23 (1986).
However, in 1984, the legislature expressly authorized
expenditure of teacher and employer monies to pay for current
pension benefits.See footnote 10 W. Va. Code 18-7A-18(c) (1993) was amended to
read:
Any deficit occurring in the benefit fund
which is not automatically met by payments to
that fund, as provided for by this article,
shall be met by additional transfers from the
employers accumulation fund and, if necessary,
by transfers from the teachers accumulation
fund.
As will be seen, this amendment to W. Va. Code 18-7A-
18(c) (1993) established the environment permitting an unrestricted
utilization of retirement funds and proved lethal to the financial
health of the Teachers Retirement System.
Between 1985 and 1988, the Governor did not request
adequate appropriations and the legislature only appropriated funds
in the amount that was requested by the Governor. In Fiscal Year
(FY) 1985-86 the 6.0 percent matching contribution should have been
$46,000,000, but only $40,500,000 was requested and appropriated.
In FY 1986-87, $49,000,000 should have been appropriated and yet
only $25,210,387 was appropriated. In FY 1987-88, $50,000,000
should have been appropriated and only $18,658,387 was appropriated and finally, in FY 1988-89,See footnote 11 $50,500,000 should have been
appropriated and $23,241,000 was appropriated.See footnote 12
As a result of these inadequate appropriations and
pursuant to the 1984 amendment in W. Va. Code 18-7A-18(c), the
Teachers Retirement System drew funds from the Teachers
Accumulation Fund and the Employers Accumulation Fund to supplement
the Benefit Fund for immediate payment of current pension benefits,
thereby eliminating any interest accrual on the Teachers
Accumulation Fund and Employers Accumulation Fund. Additionally,
the inadequate appropriation to the Teachers Retirement System was
compounded in 1988 when the legislature permitted the transfer of
monies from the Teachers Retirement System to the Public Employees
Insurance Agency pursuant to House Bill (H.B.) 4167See footnote 13 and Senate Bill (S.B.) 5,See footnote 14 which authorized payment of retiree health
insurance premiums with funds from the Teachers Accumulation Fund
and Employers Accumulation Fund.
Accordingly, the net effect of these funding
deficiencies and diversions was that as of July 1, 1994, the
Teachers Retirement System had an unfunded accrued liability of
$3.25 billion!See footnote 15
III
PROCEDURAL HISTORY
The momentum of this case has been marked by a series of
attempts by all parties, under the aegis of the circuit court, to
arrive at a resolution designed to stop the hemorrhaging of the
Teachers Retirement System. The culmination of these efforts
occurred on March 20, 1994, when the legislature passed S.B. 1000
which was signed by Governor Caperton and became effective from
date of passage. W. Va. Code 18-9A-6a(c) (1994).
The petitioners filed these actions in the Circuit Court
of Kanawha County on January 25, 1989, seeking a temporary
injunction prohibiting the transfer of funds from the Teachers
Accumulation Fund and Employers Accumulation Fund to pay insurance premiums to the Public Employees Insurance Agency pursuant to H.B.
4167See footnote 16 and S.B. 5.See footnote 17 Petitioners also requested a writ of mandamus
to compel the respondents to address the unfunded liability of the
Teachers Retirement System. Petitioners alleged four statutory
abuses of the respondents' administration of the Teachers
Retirement System including: (1) Between 1985-88, the GovernorSee footnote 18
failed to request and the legislature failed to appropriate
adequate funding general revenues to cover the 6.0 percent state
matching contribution to the Employers Accumulation Fund;
(2) Teachers Accumulation Fund and Employers Accumulation Fund
monies were expropriated to pay for current teacher pension
benefits;See footnote 19 (3) The Auditor failed to ensure that legislative
appropriations were paid into the Employers Accumulation Fund; and
(4) Monies were expropriated from the Teachers Accumulation Fund
and the Employers Accumulation Fund and the Reserve Fund in order
to pay Public Employees Insurance Agency for retired teachers'
health insurance benefits. Ultimately, it was the petitioners'
contention that the Teachers Retirement System was operated in an actuarially unsound fashion and that their contractually vested
property rights were being compromised as a result of the
respondents' conduct.
On January 25, 1989, the circuit court issued a rule to
show cause why a writ should not be issued ordering respondents to
address the problems of unfunded liability. In addition, on
January 30, 1989, the circuit court issued a temporary injunction
prohibiting respondents from using teacher retirement funds to pay
Public Employees Insurance Agency premiums for retired members of
the Teachers Retirement System which had the effect of temporarily
nullifying the effects of H.B. 4167 and S.B. 5.See footnote 20
On March 15, 1989, Governor Gaston CapertonSee footnote 21 signed an
executive order creating the Governor's Task Force to study public
pensions. The proceedings in this matter were stayed by agreement
of the parties, pending action by the task force.
An amended Motion for Peremptory Writ of Mandamus was
filed on October 12, 1993, regarding the need to act on the
unfunded liability of the pension fund. The amended petition was
essentially a restatement of the allegations contained in the
original petition. The respondents admitted the essential facts in
the original petition, which was not rescinded following the filing
of the amended petition. However, the respondents maintained that legislative action would be required to provide any sort of
adequate remedy to the petitioners and the circuit court was
without authority to provide any sort of meaningful relief to
petitioners. On November 29, 1993, the circuit court heard
arguments on the Motion for Peremptory Writ of Mandamus. The
circuit court made no decision relating to the merits of the right
to mandamus relief.
On March 20, 1994, during the 1994 First Extraordinary
Session, the legislature passed S.B. 1000, which provided a
mechanism through the public school support program for
supplemental appropriations to be paid into the Teachers Retirement
System over the next forty years. W. Va. Code 18-9A-6a(c) (1994).
S.B. 1000 amended W. Va. Code 18-9A-6a and was essential in the
elimination of the unfunded liability of the teacher retirement
system. On March 24, 1994, the respondents informed the circuit
court of the passage of S.B. 1000.
Although the core problem associated with the unfunded
liability was remediated with the enactment of the S.B. 1000, the
circuit court entered a final order on April 21, 1994: (1) finding
a writ of mandamus was appropriate; (2) converting a temporary
injunction into a permanent injunction restraining the transfer of
the Teachers Retirement System funds to the PEIA; (3) dismissing
the action, without prejudice with leave to reactivate upon the
recurrence of certain events; and (4) awarding attorneys fees and
expenses to the petitioners.
Respondents appealed the entry of this final order
arguing that: (1) a writ of mandamus is not appropriate because
the respondents do not owe a statutory and constitutional duty to
petitioners; (2) the circuit court erred in not dismissing the
action as moot; and (3) the award of petitioners' attorneys fees
and expenses was erroneous.
During oral argument before this Court, all parties
agreed with the essence of the conclusions drawn by the actuary
retained by the Consolidated Public Retirement Board to the extent
that with the enactment of S.B. 1000 "West Virginia is now funding
its Teachers Retirement System on an actuarially sound basis."See footnote 22
For reasons that follow, we vacate that portion of the
order granting the writ of mandamus as being moot; affirm that portion of the order granting the permanent injunction; and reverse
and remand that portion of the order awarding attorneys fees and
expenses.
IV
PROPRIETY OF
CIRCUIT COURT'S ORDER OF APRIL 21, 1994
This civil action was initiated in the Circuit Court of
Kanawha County in order to preserve and protect the Teachers
Retirement System from further erosion caused by an ever
increasing, unfunded, accrued liability.See footnote 23 All parties to this
proceeding acknowledge that the reason for the unfunded liability
was the failure to appropriate sufficient funds to assure that
future benefits could be paid as well as the diversion of funds
that were dedicated to the Teachers Retirement System which were
being used for other purposes.See footnote 24 As we have discussed, the relief
that was requested to address the problem associated with the
unfunded liability of the Teachers Retirement System was: (1) a
writ of mandamus to compel respondents to administer the Teachers
Retirement System in an actuarially sound basis;See footnote 25 and (2) injunctive measures designed to prevent the respondents from
transferring Teachers Retirement System funds to reimburse the
Public Employees Insurance Agency for retirees' health insurance.
The threshold issue that commands discussion at this time
is whether any relief granted by the circuit court was moot prior
to the entry of its April 21, 1994 order. The examination of the
mootness issue is required because before the entry of the circuit
court's final order, the West Virginia Legislature enacted S.B.
1000 [expressed as W. Va. Code 18-9A-6a(c)], which by all accounts
satisfactorily addressed any problems associated with the funding
deficiencies of the Teachers Retirement System.
The essential ingredients, which are the subject of this
appeal, were stated in the following sections of the circuit
court's final order:
(1) That a writ of mandamus is
appropriate because the petitioners have a
clear legal right to the relief sought; the
respondents owe a constitutional and statutory
duty to the petitioners; and, there is no
other adequate remedy at law;
(2) A permanent injunction enjoining the
Teachers Retirement System from making
payments to the Public Employees Insurance
Agency for health insurance for retirees;
(3) W. Va. Code 18-9A-6a (S.B. 1000)
designed to create an unfunded liability
allowance, will eliminate the unfunded
liability in the Teachers Retirement System
over the next 40 years;
(4) That the case be dismissed from the
active docket of the Court, without prejudice,
with leave for the petitioners to reactivate the case at any future date upon ten days
notice by filing a Motion with the Court
alleging that the State failed to properly
fund the required unfunded liability allowance
as required in W. Va. Code 18-9A-6a; and
(5) That the petitioners are entitled to
their attorneys' fees and expenses to be paid
by the respondents upon the submission of
affidavits in itemized statements by counsel
for the petitioners reserving the right in the
Court to resolve any disputes that may arise
in regard to the issue of attorneys' fees and
expenses.
Since the mootness doctrine would effect some, but not
all, of the various elements of the final order, we will discuss
what portion of that order must be vacated by the application of
the mootness doctrine and what portions should survive this appeal
and chart the future course of the funding requirements of the
Teachers Retirement System.
(A) APPROPRIATENESS OF MANDAMUS RELIEF
The centerpiece of the petitioners' prayer for relief is
the quest to compel the respondents to preserve and protect what is
contended to be a constitutionally shielded pension right created
by virtue of W. Va. Code 18-7A-1 (1941) et seq., which established
the "State Teachers Retirement System."
This Court put to rest any doubt that may have existed,
that the realization and protection of a public employees pension
property right is a constitutional obligation of the state.
Syllabus Point 18, Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d 816 (1989)(herein Dadisman I).
We offered in Dadisman I an analysis as to how a pension
right created by statute acquires a constitutionally protected
status. Dadisman I involved a similar problem relating to the
unfunded liability of the Public Employees Retirement System
(PERS). The PERS is the general retirement program for public
employees in West Virginia and was created by statute in W. Va.
Code 5-10-1 (1961) et seq.
We held in Dadisman I that the language of W. Va. Code
5-10-1 (1961) et seq. evinced a legislative intent to create a
property right of a contractual nature. Once there is a
recognition that the statute establishing the pension plan created
a property right of a contractual nature, the next logical step was
to hold that the federal and state constitutions' prohibition
against impairment of contracts limits the power of the state to
modify those pension property rights of contractual nature. From
the interaction of these various principles evolved Syllabus Point
18, Dadisman I, which follows:
The realization and protection of public
employees' pension property rights is a
constitutional obligation of the State. The
State cannot divest the plan participants of
their rights except by due process, although
prospective modifications which do not run
afoul of the federal or State impairment
clauses are possible.
Adopting the reasoning in Dadisman I, we have no
hesitancy in holding that just as the public employees' pension
right is constitutionally protected, the same constitutional protection is hereby afforded the property right of a contractual
nature created by the "State Teachers Retirement System" in W. Va.
Code 18-7A-1 (1941) et seq.
Also, when the standards of Dadisman I are applied to the
examination of the unfunded liability in the Teachers Retirement
System, we hold that the inadequate funding of the Teachers
Retirement System is invalid since it violates the prohibition
against impairment of contractual rights contained in the federal
constitution, U.S. Const. art. I, § 10, cl. 1, and in the state
constitution, W.Va. Const. art. III, § 4. See Dadisman I, supra,
181 W. Va. at 789, 384 S.E.2d at 826.
Had S.B. 1000 not been enacted prior to the entry of the
order by the circuit court finding inter alia that a writ of
mandamus was appropriate, the circuit court would have been
justified in probing: (1) whether the unfunded liability resulted
in the Teachers Retirement System being actuarially unsound;See footnote 26
(2) once there was a determination that the Teachers Retirement
System was actuarially unsound, then to consider the scope of the
relief including what measures could be judicially mandated to
return the Teachers Retirement System to actuarial soundness. See
State ex rel. Dadisman v. Caperton, 186 W. Va. 627, 413 S.E.2d 684
(1991) (Dadisman II).
Indeed, following the enactment of W.Va. Code 18-9A-6a(c)
(1994), the circuit court made no further findings or conclusions
on the question of the unfunded liability other than the conclusory
statement that the writ of mandamus is appropriate because the
petitioners have a clear, legal right to the relief sought; the
respondents owe a constitutional and statutory duty to the
petitioners; and, there is no other adequate remedy at law.See footnote 27
Actually, with the enactment of W. Va. Code 18-9A-6a(c)
(1994), there was no longer any issue of controversial vitality
relating to the measures to correct the unfunded liability of the
Teachers Retirement System, and consequently the circuit court
should have dismissed the claim for mandamus relief since there was
nothing more the respondents could or had to do to place the
Teachers Retirement System in constitutional alignment. In other
words, as we have stated in an earlier portion of this opinion,
with the enactment of S.B. 1000 "West Virginia is now funding its
teachers retirement system on an actuarially sound basis. This
legislation (S.B. 1000) finally provides a definitive solution to the nagging problem of one of our state's two largest debts-- the
$3 billion Unfunded Liability of its largest retirement system."See footnote 28
Accordingly, we hold that W. Va. Code 18-9A-6a(c) (1994)
represents a "valid and recognizable supervening circumstance"
which commands that this Court decline to decide the issue relating
to the measures to correct the unfunded liability of the Teachers
Retirement System since that issue has lost its "controversial
vitality-- it is moot." See State v. Gleason, 404 A.2d 573, 578
(Me. 1979), cited with approval in Israel by Israel v. West
Virginia Secondary Schools Activity Commission, 182 W. Va. 454,
457, 388 S.E.2d 480, 483 (1989).
Any decision in the matter sub judice relating to issues
surrounding the remediation of the inadequacy of the funding of the
Teachers Retirement System by this Court or the circuit court
following the enactment of S.B. 1000 [W. Va. Code 18-9A-6a(c)
(1994)] would avail nothing in the determination of the controversy
between petitioners and respondents on this issue since there is no
longer any controversy. W. Va. Code 18-9A-6a(c) (1994) has
resolved any controversy that may have existed. Syllabus Point 1
in State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908)
states that:
Moot questions or abstract propositions, the
decisions of which would avail nothing in the determination of controverted rights of
persons or of property, are not properly
cognizable by a court.
Prior to actually vacating that portion of the final
order which finds that a writ of mandamus was appropriate, we must
recognize and discuss that even though an issue may be technically
moot, it still may be deserving of judicial resolution by meeting
one or more of the following criteria:
First, the court will determine whether
sufficient collateral consequences will result
from determination of the questions presented
so as to justify relief. . . . Second, while
technically moot in the immediate context,
questions of great public interest may
nevertheless be addressed for the future
guidance of the bar and of the public. . . .
Third, issues which may be repeatedly
presented to the trial court, yet escape
review at the appellate level because of their
fleeting and determinate nature, may
appropriately be decided. . . . (Citations
omitted.)
See Israel by Israel v. West Virginia Secondary Schools Activity
Commission, 182 W. Va. 454, 457, 388 S.E.2d 480, 483 (1989).
Application of any or all of these exceptions to the rule
of mootness do not counsel that we should find anything other than
that the issue centered upon the quest to compel the respondents to
correct the unfunded liability of the Teachers Retirement System is
moot.See footnote 29
First, there are no collateral consequences that justify
relief that need to be addressed following the enactment of S.B.
1000.See footnote 30 Typical of this category of exceptions to the mootness
doctrine are: (1) those cases wherein a conviction is challenged
while a person is incarcerated, but the sentence is completed and
a person is released prior to a decision on the underlying
challenge; and (2) those cases involving the collateral
consequences of the effect of the conviction
vis a vis
a person's
employment opportunity, availability of security clearances, or the
use of the conviction to impeach character, all of which require a
resolution of the initial challenge to the conviction despite the
completion of the term of the sentence. No similar collateral
consequences can be found in this case. See Sibron v. New York,
392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).
Next, so long as the state properly funds the required
unfunded liability allowance as required under W. Va. Code 18-9A-6a(c) (1994), the unfunded liability issue should not be repeatedly
presented to the trial court.See footnote 31
Finally, while the problem associated with correcting the
unfunded liability of the Teachers Retirement System is
unquestionably of great public interest, that interest does not
justify further relief beyond what has already been accomplished--
the enactment of S.B. 1000 [W. Va. Code 18-9A-6a(c) (1994)].
Neither this Court nor the circuit court could not have fashioned
a better remedy than the respondents' enactment of S.B. 1000.See footnote 32
We must add a cautionary note prior to leaving the
subject of mootness and the vacating of that portion of the circuit
court's order finding the writ of mandamus appropriate. While we
avoid intruding any further on the problems associated with
correcting the unfunded liability of the Teachers Retirement System
by the application of mootness jurisprudence, we are quick to add
that the lessons of Dadisman I teach that if at a time in the
future there is some impairment of W. Va. Code 18-9A-6a(c) (1994)
so that the actuarial soundness of the Teachers Retirement System is once again imperiled, then the issue relating to unfunded
liability may be resurrected and presented to the circuit court.
To that end, the protocols established by the circuit court in its
April 21, 1994 order relating to the dismissal of this case without
prejudice are affirmed.See footnote 33
(B) INJUNCTIVE RELIEF
Fueling the funding inadequacy which created the
actuarial unsoundness of the Teachers Retirement System was the
diversion of funds dedicated for use by the Teachers Retirement
System to reimburse the Public Employees Insurance Agency. The
vehicles to accomplish this expropriation of pension assets were
H.B. 4167, a supplemental appropriation bill, and S.B. 5, the
budget bill for fiscal year 1988-89.See footnote 34
We held in Dadisman I that all contributions, including
employer contributions to a public employment retirement plan,
became part of the corpus of that pension trust and are not thereafter to be considered state funds available for use for any
other purpose other than that for which the moneys were entrusted.
See Dadisman I, supra, 181 W. Va. at 793, 384 S.E.2d at 830.
Immediately after this civil action was instituted, the
circuit court issued a temporary injunction restraining any further
expropriation of funds of the Teachers Retirement System for any
non-pension purpose. The temporary injunction was then fused into
a permanent injunction by the final order of April 21, 1994. We
hold this portion of the final order that grants the temporary
injunction is affirmed for the reasons recited in Syllabus Point 22
in Dadisman I:See footnote 35
The funds in the PERS trust are an equitable
estate, property held in common for the
benefit of each member and retirant, and
dedicated to private ends. The trust funds
are not taxpayers' money. The trust funds
have been earned by public employees for the
benefit of the trust, thus, the funds are not
public property. Any use by the Legislature
of the PERS trust funds for a purpose unrelated to that for which the contributions
were entrusted is an adverse modification of
vested rights of the PERS participants and
constitutes an expropriation.
Accordingly, and again extrapolating the language in
Dadisman I, we hold that the funds in the Teacher Retirement System
are an equitable estate, property held in common for the benefit of
each member and retirant, and dedicated to private ends. The trust
funds are not taxpayers' money. The trust funds have been earned
by the plan participants for the benefit of the trust, thus, the
funds are not public property. Any use by the legislature of the
Teachers Retirement System trust funds for a purpose unrelated to
that for which the contributions were entrusted is an adverse
modification of vested rights of the Teachers Retirement System
participants and constitutes an expropriation.
(C) ATTORNEYS' FEES AND EXPENSES
The circuit court found that the petitioners were
entitled to attorneys' fees and expenses to be paid by all of the
respondents. The lower court retained jurisdiction to resolve any
disputes which may arise, presumably as to the amount of those fees
and expenses and the allocation of payment among the various
respondents.See footnote 36
The petitioners assert a belief that they are entitled to
an award of attorneys' fees and expenses by virtue of our decision
in Nelson v. West Virginia Public Employees Insurance Board, 171
W. Va. 445, 300 S.E.2d 86 (1982), holding that attorneys' fees and
expenses will be awarded in mandamus proceedings involving public
officials who knowingly disregard their duty to faithfully execute
the law.
The petitioners support a claim for fees and expenses by
arguing that the pleadings in the case sub judice were modeled in
large part upon the pleadings in Dadisman I, particularly in regard
to the failure to make adequate appropriations to the Teachers
Retirement System and the expropriation of funds from the Teachers
Retirement System to the Public Employees Insurance Agency. This
syllogism, argues the petitioners, is sufficient to justify the
circuit court's finding that attorneys' fees and expenses should be
awarded.
Conversely, the respondents argue with equal vigor, and
also relying on Nelson that no attorneys' fees and expenses should
be assessed against them since none of the public officials
involved "knowingly disregarded their duty to faithfully execute the law," which is a predicate finding for any award of attorneys'
fees and expenses under Nelson.
Since the circuit court's order fails to make any
specific finding as to why attorneys' fees and expenses were
awarded, we can only speculate how the lower court determined that
the respondents' conduct justified that award.
However, since we must remand this phase of the case to
the Circuit Court of Kanawha County for further development, any
speculation as to what prompted the circuit court to award
attorneys' fees and expenses is not necessary.
We have recently had occasion to revisit the issue of the
circumstances when attorneys' fees and expenses may be awarded in
a mandamus proceeding against public officials, which while not
departing from the standard announced in Nelson, supra, did amplify
and clarify when, why and how to address this issue. In State ex
rel. West Virginia Highlands Conservancy, Inc. v. West Virginia
Division of Environmental Protection, ___ W. Va. ___, 458 S.E.2d 88
(1995) (Highlands II), we considered the propriety of awarding
attorneys' fees and expenses to a constellation of environmental
organizations who were acknowledged to "operate on low budgets and
receive most of their operating expenses from public and private
contributions." See Highlands II, ___ W. Va. at ___, 458 S.E.2d at
___.
The predecessor of Highlands II was State ex rel. West
Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, 191 W. Va. 719, 447 S.E.2d 920 (1994)
(Highlands I). Highlands I was a technically complex case
involving efforts by these same environmental organizations to
compel, through mandamus relief, the West Virginia Division of
Environmental Protection to address several problems relating to
acid mine drainage from coal mining sites producing acid mine
drainage. We granted some, but not all, of the relief requested in
Highlands I.
In Highlands II, the petitioners returned to this Court
seeking an award of attorneys' fees and expenses incurred in
Highlands I. We specifically recognized that in Highlands I the
issues involved both a knowing disregard of a mandatory duty by the
Division of Environmental Protection and issues that had not been
previously addressed by this Court. See Highlands II, ___ W. Va.
at ___, 458 S.E.2d at ___.
We then analyzed a series of cases where: (1) Attorneys'
fees and expenses had been awarded when a public official acted
with deliberate intention to fail to obey the law [Nelson, supra];
(2) Attorneys' fees and expenses had been awarded when a public
official disregarded a clear, nondisrectionary duty, without a
deliberate intent to avoid obeying the law [Meek v. Pugh, 186
W. Va. 609, 413 S.E.2d 666 (1991) (highest scoring fire department
employee not promoted)]; and, (3) Attorneys' fees and expenses have
not been awarded when a public official's duty is not clear [State
ex rel. McGraw v. Zakaib, 192 W. Va. 195, 451 S.E.2d 761 (1994) (attorney general's duty in circumstances presented in the case had
not been previously addressed)]. See Highlands II, ___ W. Va. at
___, 458 S.E.2d at ___.
In an effort to provide guidance to the bench and bar, we
synthesized all three categories of cases into two general contexts
where attorneys' fees and expenses may be awarded to a prevailing
petitioner in a mandamus action as: (1) where a public official
has deliberately and knowingly refused to exercise a clear, legal
duty; and (2) where a public official has failed to exercise a
clear, legal duty, although the failure was not the result of a
decision to disregard knowingly a legal command. See Highlands II,
___ W. Va. at ___, 458 S.E.2d at ___.
In the first context, we held that a presumption exists
in favor of an award of attorneys' fees and expenses unless
extraordinary circumstances indicate an award would be
inappropriate, then attorneys' fees and expenses would be allowed.
See Highlands II, ___ W. Va. at ___, 458 S.E.2d at ___.
In the second context, we found there to be no
presumption in favor of an award of attorneys' fees but provided a
matrix for the Court to follow to determine whether it would be
fair to leave the cost of litigation with the private litigant or
impose them upon the taxpayers. We established the following
factors:
(a) The relative clarity by which the legal
duty was established;
(b) Whether the ruling promoted the general
public interest or merely protected the
private interest of the petitioner for a small
group of individuals; and
(c) Whether the petitioner has adequate
financial resources such that it could afford
to protect its own interests in court and as
between the government and the petitioner.
See Highlands II, ___ W. Va. at ___, 458 S.E.2d at ___.
Since the parties and the circuit court did not have the
benefit of our analysis relating to the award of attorneys' fees
and expenses as expressed in Highlands II at the time the final
order was entered, it is only appropriate that we remand this phase
of the case to the Circuit Court of Kanawha County with directions
to determine which of the categories, if any, this case belongs and
thereafter, to apply the various factors assigned to the
appropriate category to make findings and conclusions on the entire
issue of attorneys' fees and expenses. It would be inappropriate
for this Court to suggest, based upon the state of the record
before us, whether this case belongs in either category, or if it
belongs in any category, which category.
V
SUMMARY
By way of summary, and for the reasons recited in this
opinion, the final order of the Circuit Court of Kanawha County
entered July 21, 1994 is addressed upon this appeal as follows:
(1) That portion which held that a writ of mandamus is
appropriate is hereby vacated and dismissed as being moot;See footnote 37
(2) That portion which entered a permanent injunction
enjoining the Teachers Retirement System from making payments to
the Public Employees Insurance Agency for health insurance for
retirees is hereby affirmed;
(3) That portion which finds that W. Va. Code 18-9A-
6a(c) (1994) (S.B. 1000), designed to create an unfunded liability
allowance, will eliminate the unfunded liability in the Teachers
Retirement System over the next forty (40) years is affirmed as
serving as the basis for the application of mootness jurisprudence;
(4) That portion of the order that the case be dismissed
from the active docket of the circuit court, without prejudice,
with leave for the petitioners to reactivate the case at any future
date upon ten days' notice by filing a motion with the circuit
court alleging that the state failed to properly fund the required
unfunded liability allowance as required in W. Va. Code 18-9A-6a(c)
(1994) is hereby affirmed;
(5) That portion of the order relating to the
petitioners being entitled to their attorneys' fees and expenses to be paid by the respondents is hereby reversed and remanded with
directions.
Vacated, in part; affirmed, in
part; and reversed and remanded
with directions, in part.
Footnote: 1
In Civil Action No. 89-C-261, Ms. Fleming filed a class
action suit on behalf of herself and all other retired principals
and teachers who are or were members of the West Virginia Teacher
Retirement System. Ms. Fleming's suit sought the same relief as
the West Virginia Education Association in their suit, Civil Action
No. 89-MISC-18. These actions were consolidated by order entered
June 23, 1989 and that consolidation continues in this Court for
purposes of this opinion. Footnote: 2
Larry Tucker was originally named, but Earl Ray Tomblin
replaced him when Mr. Tomblin became President of the State Senate.Footnote: 3
The Teachers Retirement System was established as a money
purchase plan, whereby the retirement benefits consisted of member
contributions, employer contributions and interest. Eventually,
the pension system was changed to allow an alternate calculation
based upon a percentage of the average final salary, commonly
referred to as a defined benefit plan. W. Va. Code 18-7A-26
(1994).Footnote: 4
"Terminated members" refers to members who left the Teachers
Retirement System membership to join the Teachers Defined
Contribution Plan, which became effective in 1991. The system was
established to create a savings to the state by decreasing the
amount needed for the newly-hired teachers' pension matching
amount. The savings is then contributed to the Teachers Retirement
System's unfunded liability. W. Va. Code 18-7A-18a (1990).Footnote: 5
The Teachers Accumulation Fund is the fund in which
contribution of members are to be accumulated. The amount of the
contributions are dictated pursuant to W. Va. Code 18-7A-15 (1953).
The contributions to the Teachers Accumulation Fund are ultimately
paid out in the form of benefits through the Benefit Fund. W. Va.
Code 18-7A-18(a), (c) (1993).Footnote: 6
Contributions to the Employers Accumulation Fund can best be
summarized as follows: (1) Until 1988 the employer matched the
employees' 6.0 percent contribution; (2) After 1988, the matching
contribution continued for those employees who are not within the
universe of the public school support program. For those employees
affected by the public school support program, the employer
contribution is calculated on the Teachers Retirement Fund
Allowance under the School Aid Formula established in W. Va. Code
18-9A-6a (1994); (3) A matching contribution is also made for all
employees paid out of federal special revenues contribution; and
(4) Beginning July 1, 1989, contributions by the county boards of
education were made under the Teachers Retirement Fund Allowance.
W. Va. Code 18-7A-18(b) (1993) and W. Va. Code 18-9A-6a (1993).Footnote: 7
The Benefit Fund is the fund from which annuities are to be
paid. The Benefit Fund is the vessel into which all monies from
the Teachers Accumulation Fund and Employers Accumulation Fund as
well as the Reserve Fund are distributed and thereafter utilized
for payment of retirement or death benefits. W. Va. Code 18-7A-
18(c) (1993).Footnote: 8
All gifts, bequests and interest earnings from investments
are to be deposited in the Reserve Fund. Thereafter these funds
are ultimately distributed to eligible participants through the
Benefit Fund. W. Va. Code 18-7A-18(d) (1993).Footnote: 9
The Expense Fund is the fund from which the expenses incurred
in the administration of the Teachers Retirement System are to be
paid. W. Va. Code 18-7A-18(e) (1993).Footnote: 10
In its petition for temporary injunction, the West Virginia
Education Association contended that the 1984 amendment to W. Va.
Code 18-7A-18(c) was the seminal event from which evolved the
unfunded liability crisis.Footnote: 11
In FY 1987-88, Teachers Retirement System incurred a $31
million deficit. In FY 1988-89, the Teachers Retirement System was
required to expend long-term investment funds in order to meet
current benefit expenditures and had requested over $19 million
from the Teachers Accumulation Fund.Footnote: 12
This information was derived exclusively from the pleadings.
For the most part, none of the critical allegations relating to the
issues having to do with unfunded liability were denied by the
respondents. However, this record does not reveal any evidentiary
development in the circuit court.Footnote: 13
H.B. 4167 states, in pertinent part, that "The board shall
transfer monthly to the P.E.I.B. [PEIA] from employee contribution
moneys, employer contribution moneys, accumulated reserves or
investment income, an amount of money sufficient to reimburse the
P.E.I.B. [PEIA] for the cost of the state's share of health care
claims of retired Teacher Retirement System members who have
elected health care coverage through P.E.I.B. [PEIA] . . ." H.B.
4167, 68th Leg., Reg. Sess., 1988 W.Va. Acts (effective Feb. 10,
1988).Footnote: 14
S.B. 5 was the budget bill for fiscal year 1988-89. S.B. 5,
68th Leg., 2nd Extraordinary Sess., 1988 W.Va. Acts (effective June
10, 1988).Footnote: 15
Brief of respondents Mr. Tomblin and Mr. Chambers, Exhibit
1, Actuarial Valuation as of July 1, 1994, p.1.Footnote: 16
See supra note 13.Footnote: 17
See supra note 14.Footnote: 18
The majority of abuses occurred during the second
administration of Governor Arch A. Moore, Jr. (January, 1985 -
January, 1989).Footnote: 19
This vice was alleged to be a product of the enactment of
W. Va. Code 18-7A-18(c) (1993). Prior to this enactment Teachers
Accumulation Fund and Employers Accumulation Fund funds should have
been transferred only in limited circumstances.Footnote: 20
See supra notes 13 & 14, and accompanying text.Footnote: 21
Gaston Caperton became Governor in January, 1989.Footnote: 22
As a result of the action taken by the Governor's Task Force,
an actuary was retained by the Consolidated Public Retirement
Board. In a study prepared by that actuary, Scott L. Dennison, the
following conclusion relating to S.B. 1000 was expressed:
Code § 18-9A-6a guarantees that the Legislature will
appropriate the amount of contribution necessary to fund
TRS [Teachers Retirement Fund] over a reasonable time
period (40 years from July 1, 1994).
West Virginia is
now funding its Teachers' Retirement System on an
actuarially sound basis.
This legislation finally
provides a definitive solution to the nagging problem of
one of our state's two largest debts--the $3 billion
Unfunded Liability of its largest retirement
system. . . .
[I]n terms of 1994 dollars the Unfunded Liability is
already shrinking under this new funding program.
Brief of respondents Mr. Tomblin and Mr. Chambers, Exhibit 1,
Actuarial Valuation as of July 1, 1994, p.2.Footnote: 23
There is no dispute that as of July 1, 1994, the unfunded
liability in the Teachers Retirement System had increased from $1.3
billion in 1983 to $3.25 billion.Footnote: 24
There is no dispute that funds dedicated to the Teachers
Retirement System were being transferred to the Public Employees
Insurance Agency to pay insurance premiums for retirees' health
insurance.Footnote: 25
There is no dispute that the unfunded liability rendered the
Teachers Retirement System actuarially unsound.Footnote: 26
The unfunded liability did make the Teachers Retirement
System actuarially unsound. See supra note 22.Footnote: 27
We are compelled to note that if the issue regarding the
measures to correct the unfunded liability of the Teachers
Retirement System was not obviated by the enactment of W. Va. Code
18-9A-6a(c) (1994) we would be required to comment upon the paucity
of findings by the circuit court which would support the conclusion
that the petitioners have a clear, legal right to the relief
sought; that the respondents do owe a constitutional and statutory
duty to the petitioners, and there is no other adequate remedy at
law. Given our finding of mootness as discussed below, there need
be no further comment as to the absence of factual and legal
predicates to these various conclusions.Footnote: 28
See supra note 23 for the Brief of Respondents, Mr. Tomblin
and Mr. Chambers, Exhibit 1, Actuarial Valuation as of July 1,
1994, p. 2.Footnote: 29
So there will be no misunderstanding as to the long-term
effect of this opinion, we are today holding that only the issue
surrounding the remedy to correct the unfunded liability is moot by
virtue of the enactment of S.B. 1000 [W. Va. Code 18-9A-6a(c)
(1994)]. However, as recited in Syllabus Points 1 and 2 to this
opinion, since the property right created by the State Teachers
Retirement System is constitutionally protected, any inadequate
funding of this system is invalid as it violates the prohibition
against impairment of contractual rights contained in both the
state and federal constitutions.Footnote: 30
The petitioners suggest that there remain sufficient
collateral issues that justify relief in the form of injunctive
relief and the demand for attorneys' fees and expenses. As we will
discuss in the next sections of this opinion, that portion of the
circuit court's order transforming the preliminary injunction into
a permanent injunction is affirmed. That portion relating to
attorneys' fees is remanded with direction.Footnote: 31
See infra p. 20 discussing the ramifications of the failure
to comply with W. Va. Code 18-9A-6a(c) (1994).Footnote: 32
Since we have determined that the issue designed to be
resolved by way of mandamus relief is moot, there is no need to
discuss any of the elements necessary to granting a writ of
mandamus including whether the petitioners have a clear, legal
right to the relief sought; whether the respondents have a legal
duty to do the thing which the petitioners seek to compel, and
whether there is an absence of another adequate remedy. See
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153
W. Va. 538, 170 S.E.2d 367 (1969).Footnote: 33
The full text of this portion of the circuit court's final
order is as follows:
This court further ORDERS that this case be
dismissed from this Court's docket, without
prejudice, with leave for the Petitioners to
reactivate the case at any future date in the
event that the State fails to properly fund
the required unfunded liability allowance as
currently provided for in W. Va. Code
18-9A-6a, upon ten days notice to all of the
parties to this Order, by the filing of a
Motion with the Court.Footnote: 34
See supra notes 13 & 14, and accompanying text.Footnote: 35
The full text of this portion of the circuit court's final
order is as follows:
In H.B. 4167 and S.B. 5, the legislature
required the Teachers' Retirement System to
pay monthly amounts for retired teacher health
insurance benefits. The Supreme Court has
recognized that it is unlawful to expropriate
pension funds for nonpension purposes. This
Court's Injunction dated January 30, 1989
shall be modified into a Permanent Injunction
and this Court ORDERS that the Teachers'
Retirement System is permanently enjoined from
making payments to PEIA [Public Employees
Insurance Agency] for health insurance for
retirees as required by H.B. 4167 and S.B. 5.Footnote: 36
The full text of this portion of the circuit court's final
order is as follows:
This court further ORDERS that the
Petitioners are entitled to their attorneys
fees and expenses to be paid by the
Respondents upon the submission of affidavits
and itemized statements by each of the counsel
for the Petitioners. Should any dispute arise
in this regard, the matter may be submitted to
this Court for further ruling.Footnote: 37
When a case is considered moot, the proper course for a court
is to vacate and remand with directions to dismiss the order or
opinion entered. United States v. Munsingwear, Inc., 340 U.S. 36,
39, 71 S. Ct. 104, 95 L. Ed. 36, (1950); see also Clarke v. United
States, 915 F.2d 699, 706 (D.C. Cir. 1990).
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