“ ‘It is well established that the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.’ Syllabus Point 1, Nelson v. Public Employees Insurance Board, [171] W.Va. [445], 300 S.E.2d 86 (1982).”
How later courts described this case
- “ ‘It is well established that the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.’ Syllabus Point 1, Nelson v. Public Employees Insurance Board, [171] W.Va. [445], 300 S.E.2d 86 (1982).”
- “While the interpretation of a statute by the agency charged with its administration should ordinarily be afforded deference, when that interpretation is unduly restrictive and in conflict with the legislative intent, the agency’s interpretation is inapplicable.”
- discussing whether state was required to provide emergency shelter but never reaching constitutional issue
- “We agree with the respondent that the use of the word ‘may’ in a statute often indicates discretion.”
Written by the judges who cited it.
The opinion
NEELY, Justice,
dissenting:
We are asked by the petitioners to dream. We are asked to dream of shelter and safety, food and care, for the homeless of our state. Of a community in which despair is met with succor, and discomfort is relieved. We remember: “The republic is a dream. Nothing happens unless first a dream.” 1 We believe that the government men weave, though warped with reality, must be woofed with dreams. As men, we share this dream.
As a court, however, we are translators of dreams into reality, and we are limited to our constitutional role. It is not enough that we, like all men, dream. We must knit the dreams we are asked to dream into the complex fabric of experience, history, consequence, and other dreams that is the law. The majority opinion, though woofed with dreams, is warped with folly, and to this warp I dissent.
Having stipulated the dream, let us now examine the folly. The majority opinion, apart from standing in a general way for the proposition that homelessness is a bad thing, is nearly entirely without meaning. A writ of mandamus is issued to the Commissioner of the Department of Welfare directing that “the petitioners and other similarly situated persons” be provided “emergency shelter, food and medical *24 care” as "required” by the applicable statutes. It is not clear from the opinion what emergency services beyond those that the Department of Welfare already provides are required, nor is it clear exactly who the class of “similarly situated persons” is meant to include. It is also neither clear what additional expenses are required, nor which current recipients of welfare funds are to be denied their benefits so that whatever the court-ordered program is can be undertaken. The Court appears to me to have said to the Commissioner: “We are against homelessness and we want you, without funds (since we haven’t any spending authority) and without guidance (since we don’t want to take the trouble to think the problem through), to do something (but we won’t tell you what) about it.” This is hardly a zenith in the art of judicial command.
I also disagree with the majority concerning their reading of the statute, but I weary of explaining that a selection of words from a statute does not, merely because the words come from that statute, necessarily embody the statute’s meaning. I therefore resort to illustration. To wit, the 4th Amendment to the United States Constitution plainly states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall ... cause ... the persons or things to be seized.” Or better yet: “The right ... people ... shall ... be violated ... upon ... persons or things to be seized.” Through the magic of ellipsis, great mischief can be accomplished, and the threat of that great mischief should make us wary — even where, as here, the mischief is less great — of the deliberate misreading of statutes as a means of accomplishing even the most charitable of our dreams.
Most readers of the “Social Services for Adults” statute, W. Va. Code, 9-6-1 et seq. [1981], would conclude that the statute was enacted to provide incapacitated adults who are in another’s care some protection from abuse or neglect at their caretaker’s hands, see particularly, W.Va.Code, 9-6-4 [1981], and to permit peace officers to offer transportation to a hospital to any incapacitated adult who is then and there in an emergency situation, so that immediate remedial treatment may be provided. W.Va.Code, 9-6-5 [1981]. Most readers would also have noticed that the word “housing” does not appear in the statute, whose entire thrust is toward the provision of temporary emergency care. In fact, the stated purposes of the statute indicate that its design is to wean its beneficiaries of dependency on the state. W.Va.Code, 9-6-2 [1981]. Most readers, I expect, would consider that stated purpose to conflict directly with the new entitlement the majority has read into the statute.
The Department of Welfare’s records reveal that the original petitioners either misrepresented that they had been denied assistance by the Department of Welfare or else had failed to obtain such assistance by the simple expedient of not applying for it. The “controversy” was restored when a new crop of petitioner-intervenors were allowed to intervene two working days before the oral argument, several of whom allege that they are homeless as a result of the Department of Welfare’s refusing to assist them. Although these allegations may be true, and establish a “controversy,” they do not establish with any particularity the class of people for whom the Commissioner is required to provide housing. Does it include people in certain income brackets only? Does it include those with sufficient income to pay rent who prefer to spend their income on alcohol? Does it include those who simply don’t like the shelters currently run by charitable organizations? Should the opinion be read to eradicate any distinction between temporary and permanent housing? Is the current Emergency Assistance program run by the Department of Welfare, which provides temporary shelter, swallowed by the new program, which appears to contemplate permanent housing for anyone unwilling or unable to pay rent? Can anyone be turned down?
The Commissioner of the Department of Welfare is no doubt as concerned with the answers to these questions as I am, yet we receive no guidance from the majority. *25 The Court has pretended that this is an issue resolvable by writ of mandamus by in turn pretending that the Department of Welfare had a non-discretionary duty to undertake this kind of broad housing reform before the majority opinion was written. The Court cannot tell the Department of Welfare what it expects because it must maintain the pretense that the duty was non-discretionary, and that the Department of Welfare “already knows” who is to be included.
A similar analysis applies to the question of what is to be done for this class, assuming that it can be defined. What are the standards of care? What are the State’s liabilities? For how long must people be housed? Where may they be housed? Where are shelters to be established? How far may people be moved to a shelter? What if they are reluctant to move? The fictions that the Court has entertained in order to avail itself of this opportunity for moral self-congratulation prevent the Court from providing answers to these and other vital questions. As with the scope of the class, the duty to house the homeless is considered non-discretionary, so the Department of Welfare must already know what to do.
Since we are not a legislature, and have no spending authority, we cannot pay for whatever reforms it is we have required. The costs must be paid from the Department of Welfare’s own budget. The noble lustre of the Court’s heroic decision is slightly tarnished, to my mind, by the fact that we ourselves do not shoulder the burden of this wondrous reform; rather we have dropped it on the backs of the traditional clients of the Department of Welfare — the children, aged, blind, and disabled of our state.
The moral of the story is that it is not enough for us merely to emote on issues. We are judges, and are given the respect and the salaries that come with the job, in order to, with patience (at least) and wisdom (at best), craft sensible and realistic solutions to the problems it is incumbent upon us to solve. I am not convinced that it is incumbent upon us to solve this problem, at least as formulated, and I am absolutely convinced that the sense and realism of the majority opinion are entirely inadequate.
. Carl Sandburg, Washington Monument by Night (1922)