State ex rel. Joint Committee on Government & Finance of West Virginia Legislature v. Bonar

230 S.E.2d 629, 159 W. Va. 416, 1976 W. Va. LEXIS 208

• Court: West Virginia Supreme Court
• Decided: March 16, 1976
• Docket: No. 13647
• Status: Published

Opinions

Wilson, Justice:

Appellant, Robert L. Bonar, Superintendent of the West Virginia Department of Public Safety, appeals from an order of the Circuit Court of Kanawha County, West Virginia, entered on August 6, 1975, awarding a writ of mandamus by which the appellant was compelled and commanded to provide the Joint Committee on Government and Finance of the West Virginia Legislature with certain records theretofore demanded in a subpoena issued by the Joint Committee and served on the appellant on April 21, 1975.

Appellant contends that the records which are sought are privileged and confidential and that the information sought violates the rights of employees of the Department of Public Safety.

The Joint Committee on Government and Finance, created by statute, is empowered, among other things, to study and survey matters of government and finance; is granted access to records of every agency or department of the State; and is specifically granted the power to compel the attendance of witnesses and the production of books, papers, documents and records by the issuance of a subpoena. See, W. Va. Code Chapter 4, Article 3, Sections 1-4.

By House Concurrent Resolution No. 8, adopted May 24, 1974, the Legislature directed the Joint Committee on Government and Finance to make a comprehensive study of the administration and personnel policies of the Department of Public Safety so that recommendations might be made and legislation might be adopted to improve such administration and policies. By House Concurrent Resolution No. 45, adopted March 9, 1975, the Joint Committee on Government and Finance was directed to continue such studies.

Pursuant to such statutory and legislative authority and directions, a subcommittee of the Joint Committee issued and served a subpoena on Robert L. Bonar, Superintendent of the West Virginia Department of Public Safety, directing him to produce certain writings, documents or reports.¹

The appellant refused to comply with the subpoena, and on June 10, 1975, the Joint Committee sought to enforce the subpoena by petitioning the Circuit Court of Kanawha County, West Virginia, for a writ of mandamus, the awarding of which prompts this appeal.

The Joint Committee and the appellant present the issues here involved as ones of great constitutional import suggesting a confrontation between the legislative and the executive branches of the government on the constitutional issue of separation of powers.

We do not see the issues in that dimension.

Not every dispute between a legislative body and a branch of the Executive Department rises to the level of a constitutional confrontation, and we are not required to view this case as a “... boundary dispute bottomed on irreconcilable claims to constitutional power.” 12 U.C.L.A. L. Rev. 1044 (1964-1965).

However, to resolve the issues presented by this appeal with due regard for the real or imagined intrusions by one branch of government into the affairs of another, the common constitutional starting point is as follows:

“The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; ...” W. Va. Const., Art. V, §1.

Inherent in the constitutional concept of separation of powers is the acknowledgment that the powers granted and exercised by each department separately must in some way be conjoined to produce a governmental entity.

Equally important is the acknowledgement that each separate department, in addition to its specific powers, has certain inherent powers without which its specific powers would be meaningless, and these inherent powers must also be conjoined to produce a governmental entity.

For example, the Legislature, in order to exercise its separate and distinct powers effectively, must have broad powers to acquire information regarding the subject matter of its legislation and to that end must necessarily acquaint itself with the manner in which various agencies of the government are being run. This Court has previously recognized this principle. Sullivan v. Hill, 73 W. Va. 49, 79 S.E. 670 (1913); and Cashman v. Sims, 130 W. Va. 430, 43 S.E.2d 805 (1947). It does not question that principle now. It recognizes that legislative investigatory powers are grounded in English, colonial and Congressional history.²

West Virginia history is free of instances in which the Executive Department of government has felt compelled to assert some sort of executive privilege against legislative investigatory intrusions. However, such confrontations, although infrequent, are a well-recognized part of the history of relationships between the Congress and the President of the United States.³

Other instances of constitutional confrontations have concerned clashes between individual rights and legislative powers; individual rights and executive privilege; legislative powers and judicial powers; and executive privilege and judicial process.

Many of these conflicts come to the courts in the context of the effect to be given to legislative or judicial subpoena powers.

When such conflicting claims must be judicially resolved, courts must endeavor to balance competing interests in such a manner as to do no violence either to the separate integrity of any branch of government or to the successful conjoinder of powers necessary to the formation of a governmental entity or to the individual rights of a free people.

This balancing of interests has produced some well-recognized and workable guidelines for those whose competing interests are, in the final analysis, defined and determined by the courts.

The judiciary has always guarded its own subpoena powers against any claim of executive privilege. See, United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (C.C.D. Va. 1807); and United States v. Nixon, 418 U.S. 683, 41 L.Ed.2d 1039 (1974).

Likewise, the courts go far to protect the rights of the Legislature in the pursuit of a legitimate legislative purpose by pertinent inquiries against any claim of privilege by individuals, other than the privilege against self-incrimination. See, Barenblatt v. United States, 360 U.S. 109, 3 L.Ed.2d 1115 (1959); Wilkinson v. United States, 365 U.S. 399, 5 L.Ed.2d 633 (1960); and Braden v. United States, 365 U.S. 431, 5 L.Ed.2d 653 (1961).

Similarly, the judiciary will not interfere with the legislative exercise of a subpoena power when such issuance is within a specific constitutional grant. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 44 L.Ed.2d 324 (1975).

However, the courts will not assume that every legislative investigation is justified by a public need that overbalances private or executive rights or privileges. See Watkins v. United States, 354 U.S. 178, 1 L.Ed.2d 1273 (1957); and Sinclair v. United States, 279 U.S. 263, 73 L.Ed. 692 (1929).

A less precise formula for the balancing of interests prevails in civil litigation. Cases can be found in which the courts have refused to require a department head to disclose information in civil actions. State v. Bouchelle, 122 W. Va. 498, 11 S.E.2d 119 (1940); and Gardner v. Anderson, 9 F. Cas. 1158 (No. 5,220) (C.C.D. Md. 1876). On the other hand, the courts will sometimes require production of documents, at least for in camera inspection. Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975); and Sun Oil Company v. United States, 514 F.2d 1020 (U.S. Ct.Cl. 1975).

From the above authorities, with specific reference to the judicial or legislative subpoena power, it is apparent that the courts jealously guard their own subpoena powers and equally jealously guard the legislative subpoena power.

However, neither subpoena power is subject to unquestioned enforcement. The courts will, on proper motion, refuse to enforce a judicial subpoena duces tecum calling for the production of documents in the absence of a showing that the documents sought are relevant and material to the matter in controversy and that proof is not otherwise practically available. Ebbert v. Bouchelle, 123 W. Va. 265, 14 S.E.2d 614 (1941). A similar standard should prevail when the courts are asked to enforce a legislative subpoena duces tecum, and this would require the Legislature to show: (1) that a proper legislative purpose exists; (2) that the subpoenaed documents are relevant and material to the accomplishment of such purpose; and (3) that the information sought is not otherwise practically available.

The Joint Committee chose in this instance not to use legislative power to enforce obedience to its subpoena by attachment, fine or imprisonment. See, W. Va. Code, Chapter 4, Article 1, Section 5; and Sullivan v. Hill, supra.

Instead, the Joint Committee chose to attempt to have the courts enforce its subpoena by mandamus. It might have sought the assistance of the courts under the W. Va. Code, Chapter 4, Article 3, Section 4, which provides as follows:

“... If any witness subpoenaed to appear at such hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, papers, documents or records within his or her control when the same are demanded, the committee shall report the facts to the circuit court of Kanawha county or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such court in the first instance ... .”

Under the provisions of Article V, Section 1 of the Constitution of West Virginia, this must be considered a grant of judicial authority, because the courts of this State are forbidden to exercise legislative authority of any kind. See, County Court v. Demus, 148 W. Va. 398, 401, 135 S.E.2d 352 (1964); and Sutherland v. Miller, 79 W. Va. 796, 91 S.E. 993 (1917).

Consequently, in considering the enforcement of a legislative subpoena duces tecum, the courts will apply principles long used by them in determining whether to enforce a judicial subpoena duces tecum.

In the instant case, the broad legislative purpose as proclaimed by the Legislature is not open to question and should not generally be resisted by any claim of executive or other privilege by the Superintendent of the Department of Public Safety. However, the relevancy and materiality of the documents requested, namely the originals of certain Activity Reports and Rating Sheets, have not been established. The Joint Committee made no effort, in its petition filed below, to set forth facts showing such necessity. It did not otherwise endeavor to make such a showing. Likewise, not only did it fail to establish that the information sought was not otherwise practically available, but indeed it appears from the face of the record that much of the requested material had previously been supplied in the form of copies. Some parts of the Joint Committee’s subpoena here in issue seem more dictated by local rather than legislative interests. Further, some of the Joint Committee’s arguments sound more in prosecutorial than in legislative concerns.

Perhaps the most pertinent case having a bearing on the issues involved in the instant case is Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974). The court held that it would not enforce a Congressional subpoena duces tecum served on the President of the United States for the production of tape recordings of conversations between the President and a presidential aide. The rationale of the court’s decision was that the court could find no merit in the argument that the Committee needed to resolve conflicting testimony and that such resolution was critical to the Committee’s perform-anee of its legislative function. The court frankly acknowledged that fact-finding by a legislative committee was undeniably a part of its task. However, it pointed out that Congress frequently legislated on the basis of conflicting information provided in its hearings. The court further rejected any comparison between the proceedings of a legislative committee and the proceedings of a grand jury. It pointed out that the proper discharge of the responsibility of a grand jury would turn entirely on its ability to determine whether there was probable cause to believe that certain named individuals committed certain specific crimes. Such judicial need for a showing of probable cause, the court contended, was much different from the legislative need for information which might very well be expected to be conflicting without interfering with the proper legislative purpose of legislating.

In the absence of a showing by the Joint Committee of the relevancy and materiality of the specific documents to a proper legislative as opposed to some other purpose, and in the absence of a showing that the information sought was not otherwise practically available, the court below should have denied access to such material, particularly when the Superintendent of the West Virginia Department of Public Safety raised such questions based on the protection of whatever rights employees of the Department might have against unnecessary disclosure of personal and confidential information concerning them.

For the reasons above stated, the order of the Circuit Court of Kanawha County, West Virginia, issuing a writ of mandamus compelling the production of the originals of certain specified documents from the Superintendent of the West Virginia Department of Public .Safety, is reversed, and the case is remanded to that court with directions to dismiss the proceeding.

Reversed and remanded.

1 The writings, documents or reports which were sought by said subpoena are as follows: “... (1) The originals, as received in the Central Headquarters Office of the Department of Public Safety, of the Activity Reports covering the period January through December 1974 for the sergeants stationed in Company C during that time, namely Sergeants E. M. Armstrong, J. L. Martin, Richard Osburn, J. H. Parsons and Russell Pitzer; (2) The originals, as received in the Central Headquarters Office of the Department of Public Safety, of the Rating Sheets for 1974 for each of the above named sergeants; (3) The originals, as received in the Central Headquarters Office of the Department of Public Safety, of all of the Activity Reports and Rating Sheets for Sergeant E. M. Armstrong since his being stationed at the Elkins detachment of the Department of Public Safety in 1969; (4) The originals, as received in the Central Headquarters Office of the Department of Public Safety, of all the Rating Sheets for Corporal Gordon L. Swartz since his being stationed at the Clarksburg detachment of the Department of Public Safety in 1972 ....”

2 For a provocative discussion of the origins and development of the rights of inquiry by legislative bodies, see 12 U.C.L.A. L. Rev. 1044, 1056-1066 (1964-1965).

3 For a summary, see, Nixon v. Sirica, 487 F.2d 700, 732-734 (D.C. Cir. 1973).