CHARLESTON – Justices of the Supreme Court of Appeals showed no enthusiasm for settling a dispute over fees that Cabell County commissioners pay the West Virginia Regional Jail Authority to keep suspects behind bars.
The jail authority charges $48 a day, but last year Circuit Judge Robert Pancake slashed the rate to $40.42.
Jail authority commissioners want the Justices to reverse Pancake. They claim Cabell County has fallen about $1,800,000 behind on its jail bill. They claim other counties have reduced payments in light of Pancake's decision.
The dispute reached the Justices at oral arguments Oct. 10, but their cautious response suggested they might prefer that state legislators take charge.
Legislators have adjusted the calculation of rates several times since creating the jail authority in 1985.
Cabell County commissioners argue that the jail authority bases its rate on beds when legislative rules require them to base it on inmates.
The county claims the inflated rate allows the jail authority to accumulate greater reserves than it needs.
The jail authority defends it calculation and asserts that the U.S. Constitution obligates counties to pay.
Pancake did not find a constitutional obligation.
For the jail authority, Charleston attorney Gary Pullin told the Justices it makes no sense to recognize a constitutional obligation but decide that counties don't have to pay to meet it.
"The obligation to pay is constitutional," he told the Justices.
Justice Joseph Albright said the jail authority calculates rates under a rule that should have gone through a committee hearing and votes in both houses.
Pullin agreed but said that shouldn't invalidate the jail authority's action.
For Cabell County, Charleston attorney Ancil Ramey said the constitutional obligation falls on the state, not the counties.
He said that when legislators created the jail authority, they provided that prisoners could not sue counties but could only sue the state.
"They build in a profit margin," Ramey said.
Albright said a 10 percent margin made sense.
He asked if the Court could declare a violation of a broad legislative instruction to the jail authority.
Ramey said the authority should base its rate on inmates, not beds. He said the authority should look at costs in a fiscal year and project an increase for the next year.
Pullin asked the Justices to keep in mind that the rate can move at any time.
"This is a rolling figure," Albright said. "It can never be precise. You have a cushion."
"A very small cushion," Pullin replied.
"That depends on your definition of small," Albright countered.
Justice Spike Maynard asked if other counties wouldn't pay or would pay less.
"That is the probable consequence of what they are asking," Pullin said, adding that some counties have stopped paying. "It has come down to a matter of pay what you want whenever you want."
The Justices briefly touched on a separate argument that the jail authority lacked a quorum when it adopted the $48 rate.
One commissioner voted by phone and according to the minutes, one voted by proxy.
Albright said the minutes reflected a misunderstanding of the word proxy.
Maynard said the Justices commonly sit in on meetings by phone. He said circuit judges hear arguments by phone.
"But the authority has no rule on it," Ramey said.
"Neither do we," Maynard said.