Committee on Legal Ethics of the West Virginia State Bar v. Triplett

MILLER, Justice,

dissenting:

We have traditionally stated that the scope of appellate review is confined to those issues decided at the trial level except where the lower court lacked jurisdiction to act in the first instance. This has coalesced into the language reflected in Syllabus Point 2 of Duquesne Light Co. v. State Tax Dep’t, 174 W.Va. 506 , 327 S.E.2d 683 (1984): “ ‘This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.’ Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522 , 102 S.E.2d 733 (1958).”

Here the question of the constitutionality of the black lung fee statute could have been raised below, but it was not. Because the issue was not raised below, there is no factual record developed. The ex parte affidavits filed as attachments to the ami-cus brief of Jane Moran are, to my mind, woefully inadequate to predicate the factual conclusion reached by the majority.

Furthermore, the majority’s reliance on Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 , 105 S.Ct. 3180 , 87 L.Ed.2d 220 (1985), is completely misplaced. I find, contrary to the majority’s statement, at 85, that Walters does not set “clear, bright line standards.” What Walters did was to uphold the ten dollar fee statutorily authorized for a lawyer or agent who represented a veteran who was seeking veteran’s benefits. It did so chiefly because it *550 began with this fundamental legal proposition:

“Judging the constitutionality of an Act of Congress is properly considered ‘ “the gravest and most delicate duty that this Court is called upon to perform.” ’ Rostker v. Goldberg, 453 U.S. 57, 64 [ 69 L.Ed.2d 478, 486 , 101 S.Ct. 2646, 2651 (1981)] (quoting Blodgett v. Holden, 275 U.S. 142, 148 , 276 U.S. 594 , 72 L.Ed. 206 , 48 S.Ct. 105 (1927) (Holmes, J.)), and we begin our analysis here with no less deference than we customarily must pay to the duly enacted and carefully considered decision of a coequal and representative branch of our Government.” 473 U.S. at 319 , 105 S.Ct. at 3188 , 87 L.Ed.2d at 232 .

The Supreme Court’s bottom line in Walters was that there was no factual showing that the fee system deprived veterans of due process under Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976):

“We accordingly conclude that under the Mathews v. Eldridge analysis great weight must be accorded to the Government interest at stake here. The flexibility of our approach in due process cases is intended in part to allow room for other forms of dispute resolution; with respect to the individual interests at stake here, legislatures are to be allowed considerable leeway to formulate such processes without being forced to conform to a rigid constitutional code of procedural necessities. See Parham v. J.R., 442 U.S. [584], at 608, n. 16, 61 L.Ed.2d 101 , 99 S.Ct. 2493 [2507, n. 16 (1979) ]. It would take an extraordinarily strong showing of probability of error under the present system — and the probability that the presence of attorneys would sharply diminish that possibility— to warrant a holding that the fee limitation denies claimants due process of law. We have no hesitation in deciding that no such showing was made out on the record before the District Court.” 473 U.S. at 326 , 105 S.Ct. at 3192 , 87 L.Ed.2d at 236 . 1

In this case, I simply do not believe that such an “extraordinarily strong showing” has been made based on the generalized ex parte affidavits filed with this Court. 2 Here the main complaint by the several affiants is not so much the amount of the fee received, but the delay in receiving fees because of the backlog of black lung cases. I know of no court which has seized on this fact to void a fee system.

Finally, there appears to me to be a lamentable lack of due process extended to the Department of Labor, which now finds its attorney’s fee mechanism declared unconstitutional without ever having the opportunity to be heard before this Court announced its decision.

I am authorized to state that Justice McHUGH joins me in this dissent.

. Mathews v. Eldridge, 424 U.S. at 335 , 96 S.Ct. at 903 , 47 L.Ed.2d at 33 , formulated this set of factors to determine the appropriate due process requirements:

"[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

. In Walters , the Supreme Court was confronted with similar generalized assertions about the unfairness of the administrative procedures in the Veteran’s Administration and made this telling comment:

“Anecdotal evidence such as this may well be sufficient to support a finding by a judge or jury in litigation between private parties that a particular fact did or did not exist. But when we deal with a massive benefits program provided by Congress in which 800,000 claims per year are decided by 58 regional offices, and 36,000 claims are appealed to the BVA, it is simply not the sort of evidence that will permit a conclusion that the entire system is operated contrary to its governing regulations.” 473 U.S. at 324 n. 11, 105 at S.Ct. at 3191 n. 11, 87 L.Ed.2d at 235 n. 11.