Pauley v. Gainer

353 S.E.2d 318, 177 W. Va. 464

• Court: West Virginia Supreme Court
• Decided: March 19, 1986
• Docket: CC956
• Status: Published

Opinions

MILLER, Chief Justice:

This appeal involves two certified questions. The first question is whether the Governor was an indispensable party to the underlying proceeding which sought to challenge the propriety of the Governor’s line-item veto of seven million dollars in the 1985-86 fiscal year budget bill. The second question relates to the substantive issue, the propriety of the veto itself.

These issues arise in the context of pending litigation in which the plaintiffs, who are the parents of children enrolled in the public school system, filed a class action suit challenging the constitutionality of the public school system. In the original action, the defendants were the State Treasurer, the State Auditor, the members of the State Board of Education, and the State Superintendent of Schools.

A brief procedural history of the underlying litigation will be useful. The class action was originally dismissed in the Circuit Court of Kanawha County for failure to state a claim upon which relief could be granted. In Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979), we reversed the dismissal and established certain guidelines to be followed on remand. After extensive hearings were held, the circuit court found several aspects of the public school financing system to be unconstitutional and ordered the development of a master plan by the defendants. This master plan was subsequently developed and approved in a final order entered March 4, 1983. No appeal was taken from this order. More recently, we addressed some additional issues arising out of this same class action. In Pauley v. Bailey, 174 W.Va. 167, 324 S.E.2d 128 (1984), the plaintiffs contended certain policy directives of the State Board of Education and the State Superintendent of Schools contravened the March 4, 1983 final order of the circuit court. We found that the policy directives did not comply with the master plan.¹

The present controversy had its genesis on August 8,1985, when the plaintiffs filed a motion for an order of implementation in which they contended the Governor’s line-item veto of seven million dollars from the 1985-86 fiscal year budget bill was improper. This appropriation was intended to finance salary equity adjustments for school teachers and school service personnel. The original defendants were served with the motion, but because the Governor was not an original party defendant, he was not served. The motion was heard on August 21,1985. At the hearing, the State Auditor objected to the circuit court’s ruling on the motion until the Governor was made a party. The circuit court overruled this objection, heard arguments, and, after framing the two certified questions, ruled on them.

The circuit court ruled that the Governor was not an indispensable party and that his line-item veto was contrary to the law. On appeal; we accepted the certified questions and upon the Governor’s motion we permitted him to intervene and argue before this Court.

On the procedural issue of his right to be made a party in the underlying action, the Governor argues that Rule 19(a) of the West Virginia Rules of Civil Procedure (W.Va.R.C.P.) mandates that he was an indispensable party.²

Initially, we observe that this case involves several unique features. The present case marks the first time that we have accepted a case challenging the validity of a governor’s veto that was first decided in circuit court rather than in this Court by way of an original mandamus as was done in the following cases.³ State ex rel. Steele v. Kopp, 172 W.Va. 329, 305 S.E.2d 285 (1983); State ex rel. Brotherton v. Blankenship, 158 W.Va. 390, 214 S.E.2d 467 (1975); State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973); Russell Transfer, Inc. v. Moore, 158 W.Va. 534, 212 S.E.2d 433 (1975); State ex rel. Browning v. Blankenship, 154 W.Va. 253, 175 S.E.2d 172 (1970).⁴

The other unique feature of the present case is that the issue sought to be litigated in the underlying case was essentially a new issue that was independent of the original mandate of the circuit court. This issue involving the validity of the Governor’s line-item veto of an appropriation included in the 1985-86 fiscal year budget bill was an action that occurred after the entry of the circuit court’s final order filed on March 4, 1983. Pauley v. Bailey, 174 W.Va. at 171-72, 324 S.E.2d at 132. As we have previously indicated, the present case could have been brought in this Court as an independent mandamus action.

Thus, the character of the issue in the underlying suit is not a continuation or enforcement of issues that were previously resolved by the circuit court’s final order, but is a new and independent issue brought about by the Governor’s April 20,1985 line-item veto. With the underlying case in this posture, we believe that it is analogous at least insofar as the Governor is concerned, who was not a party to the underlying case, to a new action which would require the application of Rule 19(a), W.Va.R.C.P.⁵

Under this rule, the Governor must be deemed to be an indispensable party since it is his action regarding the line-item veto which is the subject matter of the litigation. Under Rule 19(a), W.Va.R.C.P., a person becomes an indispensable party if he has “an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may ... as a practical matter impair or impede his ability to protect that interest....” It is difficult to conceive of how the matter could have been fairly adjudicated without the Governor being brought into the suit. Under the provisions of Article VI, Section 51(D)(11) of the West Virginia Constitution, only the governor has the constitutional authority to veto or reduce items in the budget bill.⁶

Even the most rudimentary notions of due process would dictate this result in the absence of Rule 19(a), W.Va.R.C.P., as we indicated in Syllabus Point 2 of Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64 (1937): “The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard.” See also Tucker v. Tucker, 176 W.Va. 80, 341 S.E.2d 700 (1986) (per curiam); Menon v. Davis Memorial Associates, Inc., 160 W.Va. 453, 235 S.E.2d 817 (1977) (per curiam); Sisler v. Hawkins, 158 W.Va. 1034, 217 S.E.2d 60 (1975). Therefore, we conclude in an action brought in circuit court challenging a governor’s exercise of his constitutional authority to veto or reduce items in a budget bill, the governor is an indispensable party under Rule 19(a), W.Va.R.C.P.

In holding that the Governor was an indispensable party, we do not wish to imply that in other suits involving subordinate executive officers that the Governor must always be joined as a party. Much depends on whether the Governor has a substantial and direct involvement in the issue litigated. In Wachter v. Dostert, 172 W.Va. 93, 303 S.E.2d 731 (1983), we held that the State Department of Highways was not an indispensable party in litigation involving two adjoining landowners who were contesting whether a road was public or private and gave this general statement in its single Syllabus:

“Rule 19(a) of the West Virginia Rules of Civil Procedure requires two general inquiries for joinder of a person who is subject to service of process. First, is his presence necessary to give complete relief to those already parties? Second, does he have a claim that, if he is not joined, will be impaired or will his non-joinder result in subjecting the existing parties to a substantial risk of multiple or inconsistent obligations? If the absent person meets the foregoing test, his joinder is required. However, in the event that the absent person cannot be joined, the suit should be dismissed only if the court concludes that the 19(b) criteria cannot be met.”

In the present case, despite the fact that other State officials were in the underlying suit, they had no direct or substantial interest in advocating the propriety of the Governor’s veto. Thus, it was clearly a constitutional prerogative of the Governor that was being challenged and his indispensability is apparent. The result would be different if the suit involved the action of some administrative agency such as illustrated by the underlying suit itself. The original class action challenged the constitutionality of the public school system and the defendants were those agencies and officers who were directly involved in its administration. The governor at the time the suit was filed was not a named party and would not have been an indispensable party under Rule 19(a) because the matter did not involve an issue with which his office was directly involved.

The California Supreme Court addressed this question in Serrano v. Priest, 18 Cal.3d 728, 557 P.2d 929, 135 Cal.Rptr. 345, cert. denied, 432 U.S. 907, 97 S.Ct. 2951, 53 L.Ed.2d 1079 (1977), where the governor and legislature contended they were indispensable parties in litigation involving the constitutionality of the financing of its public school system. In concluding they were not indispensable parties under a rule similar to our Rule 19(a), the California Supreme Court stated:

“[A]s we ... said in the Bank of California [v. Superior Court, 16 Cal.2d 516, 521, 106 P.2d 879, 883 (1940)] case,' in dealing with the doctrine of indispensable and necessary parties ‘we should ... be careful to avoid converting a discretionary power or a rule of fairness in procedure into an arbitrary and burdensome requirement which may thwart rather than accomplish justice.’ ... In the instant case it is quite clear that no governmental interest has lacked for able and willing advocates in the absence of the Legislature and Governor as parties. This case has been well-known to those entities since its inception, yet they have at no point sought intervention or indicated any interest in doing so.” (Citations and footnotes omitted).

See also Van Atta v. Scott, 27 Cal.3d 424, 613 P.2d 210, 166 Cal.Rptr. 149 (1980); Nason v. Commonwealth, 90 Pa.Cmwlth. 130, 494 A.2d 499 (1985).

Because we have concluded the Governor was an indispensable party in the underlying proceeding which challenged his line-item veto, we decline to address the substantive issue of whether the line-item veto was proper.⁷

Answered and Dismissed.

1 . In an earlier per curiam opinion, we held that a citizen's attempt to intervene in this class action was untimely. Pauley v. Bailey, 171 W.Va. 651, 301 S.E.2d 608 (1983).

2 . Rule 19(a), W.Va.R.C.P., provides, in part:

“(a) Persons to be joined if feasible. — A person who is subject to service of process shall be joined as a party in the action if„(l) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest....”

3 .The parties do not argue and, therefore, we do not decide whether it was proper for the veto issue to have been raised in the underlying action. It is apparent, however, that from the standpoint of judicial economy and time, an original mandamus in this Court would have involved less delay. When a challenge to a veto comes to this Court by way of an appeal or certified question from a circuit court, the delay between the time it was filed in and decided by the circuit court and appealed to and decided by this Court may render the issue moot because the fiscal year pertaining to the line-item veto may have expired.

4 .In most of these cases, the governor was made a party by way of intervention and, although we did not discuss the right of intervention in these mandamus cases, we commented on this issue in State ex rel. Evans v. Kennedy, 145 W.Va. 208, 215, 115 S.E.2d 73, 78 (1960):

"As a general rule any person having an interest in the subject matter or whose right or interest will be affected by the judgment awarding the writ, may intervene in a mandamus proceeding. There must, however, be a proper showing of substantial interest in the subject matter to authorize an intervention and a person on whom rests no duty to perform the act sought to be enforced in the mandamus proceeding, or who has no substantial and peculiar interest in the subject matter of the litigation, or whose interest will not be affected by a judgment awarding the writ can not intervene as a party....”

5 . The pertinent language of Rule 19(a), W.Va. R.C.P., is set forth in note 2, supra.

6 . Article VI, Section 51(D)(11) of the West Virginia Constitution provides, in part:

“Every budget bill or supplementary appropriation bill passed by a majority of the members elécted to each house of the legislature shall, before it becomes a law, be presented to the governor. The governor may veto the bill, or he may disapprove or reduce items or parts of items contained therein. If he approves he shall sign it and thereupon it shall become a law. The bill, items or parts thereof, disapproved or reduced by the governor, shall be returned with his objections to each house of the legislature."

7 . A major problem in resolving the substantive issue is that the Governor's response raises certain factual issues which appear to counter some of the plaintiffs' claims. The major contention of the Governor is that the seven million dollar line-item veto in the budget bill took place before House Bill 2089, 1985 W.Va. Acts, Ch. 57, was presented to and signed by him. This bill, a portion of which is contained in W.Va. Code, 18A-4-5c (1985), authorizes ten million dollars to be paid out of surplus revenues for school teacher and school service personnel salary equity adjustments, and that this along with an additional twenty-nine million dollars left in the budget more than covered the line-item veto of seven million dollars for salary equalization.