CHARLESTON – In unison, West Virginia's Supreme Court of Appeals shouted at West Virginia's Legislature to wake up and get to work on finding a fair way to pay for regional jails.

The Justices issued a writ of mandamus Nov. 21, compelling adoption of a legislative rule for setting the Regional Jail Authority's rates for keeping inmates in custody.

The Justices let the daily rate of $48.50 stand, but they don't want it to stand for long.

Justice Joseph Albright declared that, "... escalating regional jail costs have effectively crippled the counties of this state with regard to their respective budgetary decisions."

He wrote, "That this matter is urgently deserving of serious attention from the Legislature cannot be disputed."

He quoted a 1942 opinion holding that the Legislature should refrain from imposing on county courts greater burdens than their revenues justify.

He wrote, "The Legislature has imposed upon the county courts 'greater burdens than their revenues justify.'"

No one dissented.

The Justices rejected the drastic solution of Cabell Circuit Judge David Pancake, who unilaterally cut Cabell County's rate to $42.02 last year.

To their utter frustration, the Justices found no evidence in the record for the authority's $48.50 rate or Pancake's $42.02 rate.

Albright declared, "We find our collective judicial hands to be tied…"

Although the case came from Cabell County, the Justices rendered a statewide decision because they found public safety concerns and funding issues "intrinsically entwined."

Albright pointed out that Lincoln, Mingo, Wayne, Fayette, Harrison and Taylor counties reduced jail payments in light of Pancake's order.

The Legislature created the authority in 1985, so counties could close obsolete jails. The authority built ten regional jails.

In 1994 the authority's board adopted a procedural rule for setting daily rates. In 1998, the Legislature required them to discard the 1994 rule and adopt a legislative rule.

The board never adopted a legislative rule. They continued setting rates according to the old procedural rule.

In 2004, they voted to raise the rate from $45 to $48.50.

In 2005, Cabell County commissioners passed a budget reducing jail payments from $1,635,839 to $1,089, 322.

The county fell behind on inmate payments, and the authority asked the Supreme Court of Appeals to order the county to catch up.

Instead, the Supreme Court of Appeals ordered Pancake to conduct proceedings to determine the issues.

In May 2006, Pancake ruled that Cabell County commissioners properly reduced jail payments when they reduced other payments to avoid a deficit.

He ruled that the authority invalidated the procedural rule of 1994 by failing to adopt a legislative rule after 1998.

He cut Cabell County's rate to $40.42.

He didn't pull the rate out of the air. Both sides had told him they got $40.42 when they divided operating expenses of the Western Regional Jail by the number of inmate days.

On appeal for the authority, Gary Pullin of Charleston protested that Pancake allowed Cabell County to default on about $1,800,000 in fees.

He warned the Justices that Pancake's order "seriously threatens the viability of the unique statewide jail system in West Virginia."

He called the default "a planned, organized, deliberate and premeditated effort by Cabell County commissioners to avoid their constitutional and legal debts."

For Cabell County, Ancil Ramey of Charleston answered that rising jail costs forced counties to close libraries, drop health insurance, curtail services and lay off employees.

He claimed that authority revenues exceeded expenditures by almost $16 million in 2005, and that the authority carried a surplus of more than $12 million.

Pullin responded that the authority maintained no more reserves than necessary to fulfill its financial obligations for a brief period.

The Justices heard oral arguments Oct. 10.

In their deliberation they agreed that Pancake made a mistake, but they chose not to reverse him and remand the case to his court with directions.

Instead they invoked original jurisdiction, as if the case never passed through circuit court. That way they could send a message to legislators, rather than to Pancake.

First, they rejected Pancake's reasoning that the obligation to create a legislative rule deprived the procedural rule of validity.

Albright wrote, "... we are reluctant to adopt the trial court's position to essentially 'throw out the baby with the bath water.'"

Due to the normal passage of time in drafting, promulgating, and adopting legislative rules, he wrote, there would have been a period after adoption of the statutory directive when the procedural rule had to remain in force.

Valid procedural rules remain in force until withdrawn, repealed, or replaced by the Legislature or pursuant to the rule making power of the authority, he wrote.

The Justices could not confirm that expenditure schedules in the record before them required a $48.50 rate, nor could they conclude that the rate was not justified.

They rejected Pancake's calculation that yielded $40.42. Albright wrote, "... we have been unable to verify this amount due to the absence of supporting documentation."

The Justices ordered the authority board to meet promptly, formulate a proposed rule for review by the Legislature, and faithfully pursue promulgation of such a rule.

If the authority seeks in the meantime to raise the rate, they wrote, board members must see proof that the rate has been properly calculated.

Albright advised board members to "act without delay despite the possibility of forthcoming legislative action ..."

He wrote, "The continued reliance by the authority on an outdated procedural rule cannot be permitted to continue."

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