Starcher v. Crabtree

McGRAW, Justice,

dissenting:

When confronted with constitutional challenges to statutory enactments, this Court has exercised considerable restraint through the application of the doctrine of least intrusive remedy. This Court held, for example, in Syllabus Point 4 of State ex rel. Alsop v. McCartney, 159 W.Va. 829 , 228 S.E.2d 278 (1976), that “under the doctrine of least obtrusive remedy this Court will not strike down otherwise constitutional legislation when there is an adequate remedy to prevent such legislation from being unconstitutionally applied.” See also Bailey v. Truby, 174 W.Va. 8 , 321 S.E.2d 302, 306 (1984); Anderson’s Paving, Inc. v. Hayes, 170 W.Va. 640 , 295 S.E.2d 805, 807 (1982); Don S. Co. v. Roach, 168 W.Va. 605 , 285 S.E.2d 491, 496 (1981); State ex rel. S.M.B. v. D.A.P., 168 W.Va. 455 , 284 S.E.2d 912, 916 (1981); Weaver v. Shaffer, 170 W.Va. 107 , 290 S.E.2d 244, 249-51 (1980); Waite v. Civil Service Commission, 161 W.Va. 154, 166 , 241 S.E.2d 164, 170-71 (1977); State ex rel. Whitman v. Fox, 160 W.Va. 633, 642-43 , 236 S.E.2d 565, 571 (1977); State ex rel. Harris v. Calendine, 160 W.Va. 172, 176-80 , 233 S.E.2d 318, 322-24 (1977). In the instant proceeding, the only changes needed to permit the statute in question to pass constitutional muster would be to place the Family Law Masters squarely in the Department of Human Services and to permit a de novo appeal of their determinations to the circuit courts. Clearly, this would further, not frustrate, the intent of the Legislature in enacting a comprehensive domestic relations bill and would avoid the loss of sorely needed federal funds. It is interesting that the majority asserts deference to the Legislature as a reason for effectively negating the unequivocal intent of the Legislature. Because the role of courts is often one of reconciliation between conflicting constitutional law and statutory law, I dissent from the adoption of the most intrusive remedy by the majority.