STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS




STATE OF WEST VIRGINIA EX REL.
WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY,                                         FILED
Petitioner                                                         September 15, 2016
                                                                         released at 3:00 p.m.
                                                                       RORY L. PERRY, II CLERK
vs.) No. 15-1021                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA

COUNTY COMMISSION OF WEBSTER COUNTY,

DANIEL B. DOTSON, PRESIDENT,

JERRY F. HAMRICK, VICE PRESIDENT, AND

ANNA CARPENTER, COMMISSIONER,

Respondents



                             MEMORANDUM DECISION

              This is a writ of mandamus proceeding filed under the original jurisdiction of
this Court by Petitioner, West Virginia Regional Jail and Correctional Facility Authority
(hereinafter “Regional Jail”), through counsel, Leah Macia, General Counsel, and Stephen
R. Connolly, Deputy Attorney General. The Regional Jail seeks to have this Court compel
the Respondents, County Commission of Webster County and its three elected officials
(hereinafter collectively “the Commission”),1 pay accrued money owed to the Regional Jail
for services provided to inmates from Webster County.

                This Court has considered the parties’ briefs, the appendix submitted, and the
parties’ oral arguments. Upon consideration of the standard of review, the Court grants the
writ of mandamus as moulded. In view of prior precedent on the dispositive issue presented
in this case, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.




       1
      The three county commissioners named were Daniel B. Dotson, Jerry F. Hamrick,
and Anna Carpenter.

                                              1

                                        I.

                               FACTUAL BACKGROUND


               The Regional Jail was created through legislation known as the West Virginia
Regional Jail and Correctional Facility Authority Act. See W. Va. Code § 31-20-1 et seq.
(1989). Pursuant to the Act, the Legislature authorized the development of regional jails in
order “[t]o provide a cost-efficient system within this state for the construction, maintenance
and operation of adult jails and correctional facilities.” W. Va. Code § 31-20-1a(b)(1) (1998)
(Repl. Vol. 2015). Under the Act, the operational costs for the regional jail system are paid
by the entities that place inmates in the facilities. See W. Va. Code § 31-20-10a (2004)
(Repl. Vol. 2015).

                In this proceeding, the Regional Jail has asserted that the Commission owes
it $1.31 million dollars for services provided to inmates from Webster County, and that the
Commission has failed to make payments on the debt. The Commission has admitted that
it owes the Regional Jail $1.31 million dollars.2 The Regional Jail also indicated that the
amount owed continues to increase at an estimated amount of $40,000 per month. In an
effort to collect the money owed by the Commission, the Regional Jail alleges that it has held
discussions with the Commission and other county officials, and attempted to bill the
Commission on a monthly basis. The Regional Jail has asserted that all of its efforts to get
the Commission to pay the debt have failed. Consequently, the Regional Jail now asks this
Court to issue a writ of mandamus to compel the Commission to pay the debt.

                                           II.

                                       DISCUSSION


              We have held that “[s]ince mandamus is an ‘extraordinary’ remedy, it should
be invoked sparingly.” State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 303,
460 S.E.2d 436, 438 (1995) (footnote omitted). The traditional test for granting mandamus
relief has been stated as follows:

                     A writ of mandamus will not issue unless three elements
              coexist–(1) a clear legal right in the petitioner to the relief
              sought; (2) a legal duty on the part of respondent to do the thing
              which the petitioner seeks to compel; and (3) the absence of
              another adequate remedy.


       2
       The Regional Jail indicated that the Commission has not paid on the debt since mid­
2012. The Commission disputes this point, but does not challenge the amount owed.

                                              2

Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).
See Syl. pt. 2, State ex rel. Cooke v. Jarrell, 154 W. Va. 542, 177 S.E.2d 214 (1970) (“To
entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right
thereto and a corresponding duty on the respondent to perform the act demanded.”). As
shown below, the Regional Jail has satisfied the requirements for obtaining the writ.

              It was previously noted that the Commission does not dispute the fact that it
owes the Regional Jail $1.31 million dollars for services rendered to inmates from Webster
County, and that the debt continues to grow at an estimated amount of $40,000 per month.
The Commission also concedes it has a statutory duty to pay the Regional Jail the debt owed.
The statutory duty is found in W. Va. Code § 31-20-10(h) (2010) (Repl. Vol. 2015). This
statute provides in relevant part:

                     When inmates are placed in a regional jail facility . . . ,
              the county shall pay into the Regional Jail and Correctional
              Facility Authority Fund a cost per day for each incarcerated
              inmate to be determined by the Regional Jail and Correctional
              Facility Authority[.]

See also W. Va. Code § 31-20-10a(c) (“The county is responsible for costs incurred by the
Authority for housing and maintaining inmates in its facilities who have not been committed
to the custody of the Commissioner of Corrections”).

              The Commission argues that it should not be required to pay the debt it owes
the Regional Jail. Some of the reasons cited by the Commission include: it experienced an
increase in drug prosecutions from 2013-2014; from 2010-2015 its coal severance monies
were reduced in half; real property is being taxed at the maximum allowable rate; it has spent
its “rainy day” reserve fund; it reduced its budget; it imposed a hiring freeze; employee
benefits have been cut; it no longer funds many community programs and services; tax
assessment, tax collection, county police services, and prosecution will become practically
non-existent; the Regional Jail has a surplus of $58,482,000;3 and the Regional Jail “spends
money on unnecessary programs such as computer kiosks for inmate video conferencing.”


       3
        We note in passing that the Legislature has provided a statutory mechanism for
dealing with excess funds held by the Regional Jail. See W. Va. Code § 31-20-10(d) (2010)
(Repl. Vol. 2015) (“If the authority determines that moneys held in these funds are in excess
of the amount needed to carry out the purposes of this article, it shall take any action that is
necessary to release the excess and transfer it to the General Revenue Fund of the State
Treasury.”).

                                               3

Based upon these reasons, the Commission contends that the application of W. Va. Code §
31-20-10(h) to the facts of its circumstances is unconstitutional. We disagree.

                 The issue of an unconstitutional application of a statute to a specific set of facts
is not new to this Court. See City of Wheeling v. Natural Gas Co. of W. Va., 74 W. Va. 372,
385, 82 S.E. 345, 351 (1914) (“[I]t has been many times decided that though a statute may
be lawful as applied to some person it may nevertheless be rendered invalid in its application
to others, if its enforcement would deprive them of legal and constitutional rights.” (citation
omitted)). “This Court has repeatedly held that a statute may be constitutional on its face but
may be applied in an unconstitutional manner.” State ex rel. Haden v. Calco Awning &
Window Corp., 153 W. Va. 524, 530, 170 S.E.2d 362, 366 (1969). See Lewis v. Canaan
Valley Resorts, Inc., 185 W. Va. 684, 691, 408 S.E.2d 634, 641 (1991) (“[A] statute may be
constitutional on its face but may be applied in an unconstitutional manner.”); Syl. pt. 12,
Farley v. Graney, 146 W. Va. 22, 119 S.E.2d 833 (1960) (“An act of the legislature may be
valid in its general scope and broad outline but invalid to the extent that the restrictions
imposed thereby are clearly arbitrary and unreasonable in their application to specific
property.”); Syl. pt. 8, Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129, 67 S.E. 613 (1910)
(“It is no objection to the remedy in such case, that the statute, the application of which in
the particular case is sought to be prevented, is not void on its face, but is complained of only
because its operation in the particular instance works a violation of a constitutional right.”).
In Syllabus point 6 of Kolvek v. Napple, 158 W. Va. 568, 212 S.E.2d 614 (1975), we
succinctly held: “A statute may be valid on its face but unconstitutionally applied. The
unconstitutional application of the statute may be prohibited and the statute allowed to
stand.”

                In the instant case, the Commission has failed to show how W. Va. Code
§ 31-20-10(h) is arbitrary or capricious in its application to the facts of this case. Indeed, the
facts of this case show only that the Commission has arbitrarily chosen not to make payments
on the debt it owes the Regional Jail. Although we recognize the Commission may have
encountered an unexpected loss in revenue from the coal industry, this situation is a state­
wide problem that is not peculiar to the Commission. Moreover, this Court does not have
authority to decide what bills government entities can avoid paying, in times of financial belt
tightening, because of revenue shortage from the coal industry. The issues raised by the
Commission in this regard are matters for the Legislature to consider and resolve. Our duty
is to apply the law, not reinvent it in order to allow a party to avoid payment of a debt.

              The Regional Jail has argued that under our decision in State ex rel. Regional
Jail & Correctional Facility Authority v. County Commission of Cabell County, 222 W. Va.
1, 657 S.E.2d 176 (2007), it is entitled to the requested writ. We agree.


                                                 4

               One of the issues presented in Cabell County involved a request by the
Regional Jail to have this Court, require the County Commission of Cabell County pay the
debt it owed the Regional Jail for housing its prisoners.4 At the time that the proceeding was
filed with this Court the county owed the Regional Jail $1.5 million dollars for fiscal year
2005.5 We determined that under W. Va. Code § 31-20-10 and § 31-20-10a(c) the county
had a mandatory duty to pay the debt owed to the Regional Jail. We addressed the matter as
follows:

                     Given this Court’s duty to uphold the laws of this state
              which includes the enactments of our Legislature, we are
              similarly constrained to recognize the mandatory language
              directing that the counties “shall pay” for the “costs of operating
              the regional jail facilities of this state to maintain each inmate”
              as well as the statutory language that imposes responsibility on
              the counties for “costs incurred by the Authority for housing and
              maintaining inmates in its facilities.” W. Va. Code §§ 31-20­
              10(h); 31-20-10a(c). . . . Accordingly, we conclude that the
              statutory provision imposing mandatory payment obligations on
              the Commission for inmates housed in the regional jail is clearly
              subject to enforcement. Furthermore, the trial court was without
              the authority to reduce the amount of assessments made by the
              Authority. . . . Accordingly, the Commission is required by
              statute to remit payment to the Authority for those amounts
              assessed for per diem payments in connection with fiscal year
              2005. Insofar as the trial court improperly reduced the per diem
              rate pursuant to which the Commission was obligated to pay the
              Authority for fiscal year 2005, the Commission remains
              responsible for the amounts as originally assessed for such
              period.


       4
         The case was filed as a petition for a writ of mandamus under the original jurisdiction
of this Court. We issued a rule to show cause returnable to the Circuit Court of Cabell
County for the development of an evidentiary record. The circuit court entered an order
partially granting the Regional Jail the relief requested. In doing so, the circuit court
drastically reduced the amount of money the Regional Jail was seeking. The Regional Jail
appealed that partial judgment.
       5
       While the case was pending before this Court, the county paid some of the debt and
reduced it to $457,355.00.

                                               5

Cabell County, 222 W. Va. at 13, 657 S.E.2d at 188.

               The decision in Cabell County is binding precedent on the resolution of the
instant case. See Scott v. Virginian Ry. Co., 117 W. Va. 180, 187, 184 S.E. 559, 562 (1936)
(“We are of the opinion that the case of Pedersen v. Delaware, L. & W. R. Co., . . . was
decided upon facts essentially analogous to the facts before us, and that it constitutes a
binding precedent for the decision of this case.”). See also State ex rel. Farley v. Cummings,
No. 12-0159, 2012 WL 3155730, at *2 (W.Va. May 9, 2012) (memorandum decision) (“The
holding in Hunter, supra, is binding precedent in this action. The writs of prohibition and
mandamus filed by the petitioners herein are granted.”). Insofar as “there is a complete lack
of proof that [W. Va. Code § 31-20-10] is being applied in an unreasonable, arbitrary or
capricious manner; . . . the statute . . . is constitutional.” State ex rel. Haden v. Calco Awning
& Window Corp., 153 W. Va. 524, 531, 170 S.E.2d 362, 366 (1969). Accordingly, we find
that under our precedent the Commission must pay the debt owed to the Regional Jail.


                                           III.

                                       CONCLUSION


               In view of the foregoing, we find that the Regional Jail is entitled to the writ,
as moulded. Therefore, we hold that the Commission must pay the debt of approximately
$1.31 million dollars it owed to the Regional Jail at the time that this proceeding was filed,
in addition to payment of the debt that accrued while this case was pending. We further
require the Regional Jail to work out a payment plan with the Commission that allows the
Commission to pay the past debt in installments over the course of a reasonable period of
time.6


       6
         The Regional Jail also has indicated in its brief that it contacted the state Tax
Commissioner and requested tax payments due to Webster County be withheld. See W. Va.
Code § 14-1-37(h) (2010) (Repl. Vol. 2014) (“The auditor and the chief administrators of the
various state agencies are authorized by this section to enter into interagency agreements for
the purpose of . . . collecting debts, fees and penalties due the state, its departments, agencies
or institutions.”). The Regional Jail has asked this Court to order the Tax Commissioner to
give it the tax monies it is holding for Webster County. We decline to grant such relief
because the Tax Commissioner is not a party to this litigation. See State v. Felty, 109 W. Va.
384, 390-91, 155 S.E. 122, 124 (1930) (“Under our decisions, which have been uniform, the
merits of a case should never be adjudicated in the absence of necessary parties.”); Syl. pt.
2, in part, United Fuel Gas Co. v. Morley Oil & Gas Co., 101 W. Va. 73, 131 S.E. 713 (1926)
(“The merits of a cause should never be adjudicated in the absence of necessary parties.”).

                                                6

                                                               Writ granted as moulded.

ISSUED: September 15, 2016

CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




During oral argument the Regional Jail stated that it was no longer seeking tax payments
from the Tax Commissioner.

                                           7