Manchin v. Browning

NEELY, Justice,

dissenting:

I dissent from the majority’s opinion. At the outset, let me disassociate myself entirely from any suggestion of impropriety the Attorney General may infer from the majority’s lengthy peroration on professional ethics. To the extent that the majority finds in the Code of Professional Responsibility guidance about the political role of the office of the Attorney General, I disagree, 1 and to the extent that there is an implied criticism of the Attorney General, I will have no part in it.

I

The majority asserts for the Attorney General a role analogous to a legal aid attorney for State employees sued in their official capacity, and concludes that he is therefore bound to advocate zealously the personal opinions of the officer whom he represents. This position is untenable.

The West Virginia Code states that “the attorney general shall appear as counsel for the State in all causes pending ... in any federal court, in which the State is interested; ... he shall defend all actions and proceedings against any State officer in his official capacity ... when the State is not interested in such cause against such officer, but should the State be interested against such officer, he shall appear for the State ....” W.Va.Code, 5-3-2 [1972], The Attorney General’s primary duty is clearly to the State. He is not empowered to act as counsel for State employees, except to the extent that prosecution of the employee’s interest is compatible with the interests of the State.

In this case the majority admits in their opinion that “[t]he Secretary of State ... agreed with the plaintiff in the civil action that the existing apportionment statute was unconstitutional.” If the Attorney General must defend this point of view of Mr. Manchin, then there is no true adversarial relationship between the parties; such a trial would be a sham. This Court has in the past recognized the importance of maintaining a true adversarial relationship, stating that “[a]t law, persons jointly interested in the object of the suit must stand on the same side of the case upon the record, ...” Sadler v. Taylor, 49 W.Va. *794 104, 115 , 38 S.E. 583, 587 (1901). I do not understand why these basic principles of the adversary system have suddenly become obsolete.

If in the case at bar Mr. Manchin were threatened with personal liability, or if the Secretary of State exercised any policy-making authority, I might be willing to confer on Secretary Manchin some degree of participation in what would, in either of those circumstances, be in some sense “his” litigation. Neither, however, is here the case. Under West Virginia law, a public officer acting within the scope of his authority in performance of his official duties may not be held civilly liable for consequences of his acts, unless it is shown that he acted willfully, maliciously or corruptly, Kondos v. West Virginia Board of Regents, 318 F.Supp. 394 (S.D.W.Va.1970), aff'd., 4th Cir., 441 F.2d 1172 , so this case poses no personal threat to Mr. Manchin.

Furthermore, the West Virginia Code gives the Secretary of State no policy-making authority. The governmental role of Mr. Manchin as the Secretary of State is described in several statutes. W.Va.Code, 5-2-1 [1923], charges the Secretary of State with the clerical duties of the Executive Department. W.Va.Code, 5-2-2 [1923], empowers the Secretary to administer oaths. W.Va.Code, 3-l-3a [1971], directs the Secretary of State to implement the federal Voting Rights Act Amendments of 1970. Most importantly, W.Va.Code, 3-1A-6 [1974] establishes the Secretary of State as the chief election official of the State, and gives him “authority ... to make, amend and rescind such rules, regulations and orders as may be necessary to carry out the policy of the legislature _” (emphasis added).

The majority cites Article 7, Section 1 of the West Virginia Constitution for the proposition that the role of the Attorney General is limited to his statutory grant of authority. This same section applies as well to the office of Secretary of State. As the Code makes plain, the people of West Virginia have delegated no duties to the Secretary of State that would empower him to ignore or countermand the directions of the legislature. His authority is not to carry out such of the legislature’s policy as he considers to be constitutional, but to carry out the policy of the legislature as contained in the duly enacted statutes. His opinions about the constitutionality of statutes, however well-founded or well-intentioned, are personal to him.

Secretary Manchin has no interest in the question of constitutionality beyond that of an ordinary citizen. His duty is to administer the legislative policy, however construed. “One who accepts a public office ... subjects himself to all constitutional and legislative provisions relating to the office, and undertakes to perform all the duties imposed on its occupant; and while he remains in such office he must perform all such duties” State ex rel. Preissler v. Dostert, 163 W.Va. 719 , 260 S.E.2d 279, 286 (1979).

I search in vain for any provision authorizing the disbursement of state funds to vindicate the personal opinions of ministerial employees on constitutional issues in a court of law. I commend the majority on their acuity — in the tradition of Peter Pan, they are able to locate a provision which, like Tinkerbell, appears to vanish whenever a grown-up enters the room.

To take the control of the State’s case away from the “chief ‘law-trained’ officer of the State” and inject the opinions of a clerical officer who has no legal training is nonsensical. It raises the possibility of collusive lawsuits in the future between plaintiffs and sympathetic nominal defendants, and injects into litigation an element which may very well be antagonistic to the interests of the State, and is beyond normal political control. A ministerial employee is not held accountable for his political opinions precisely because, from a political point of view, he is entitled to none. With this decision, the Court has granted to clerks and nominal parties an unpoliced political vote, and secured for that vote the paid, zealous advocacy of the State Attorney General.

II

The majority cites as authority for their holding the case of Motor Club of Iowa v. *795 Department of Transportation, Iowa, 251 N.W.2d 510 , decided in 1977 by the Iowa Supreme Court. The vast weight of authority has, unsurprisingly, held contrary to our majority (as the majority opinion itself admits). In order to distinguish away these cases, my brothers have indulged themselves in some extremely fine — in fact, questionable — distinctions. With cases that appear to support their extraordinary view they have been less painstaking. An illustration of this intellectual relaxation is to be found in their selection of the Iowa ease as authority for their position. The majority has missed a glaring and obvious distinction between Motor Club, supra, and the case at bar. In fact, the distinction they have missed turns the precedent against them.

The 65th General Assembly of the State of Iowa established a Department of Transportation, and delegated to it certain functions. Among those functions was the duty of the Commission of the Department of Transportation to “adopt rules ... governing the length of vehicles and combinations of vehicles .... ” Iowa Code § 307.10 (5). Pursuant to this authority the commission voted to establish a 65-foot limit, but a trial court held that rule invalid. While the case was on appeal, personnel on the commission changed, the majority became the minority, and the commission attempted to dismiss the appeal in order to abide by the (now-favorable) ruling of the trial court. It was at this point that the Iowa attorney general interfered, and sought to continue the appeal against the wishes of the commission.

The distinction is this: in Motor Club the government officers resisting the attorney general’s interference were doing so on a matter over which they had an express grant of rule-making authority from the legislature, and were acting within the ambit of that authority. The commission was qualified to make the law, had had that task entrusted to it, and was acting within its bounds. I wholeheartedly endorse the decision of the Iowa court on these facts. I, too, think the Iowa court is right. I think the Iowa justices have written a fine opinion. But where, as in our case, a nominal plaintiff is not entrusted with policy-making authority and is required by statute to bow to the policies of the legislature, Motor Club simply does not apply.

Our legislators, in entrusting to the Secretary of State limited rule-making authority in order that he may carry out legislative policies, could hardly have expected that Mr. Manchin would turn on them and attack legislative enactments under color of that authority, and could even less have imagined that this Court would not only countenance, but endorse, such actions. Where the political process neither solicits nor endorses a government officer’s opinions on a matter, he is not entitled forcibly to inject those opinions into that process in any other than a purely advisory manner. He is certainly not entitled to substitute his personal views for those of the State as expressed in its duly enacted legislation, nor to interfere with the State officer charged to “appear as counsel for the State in all causes ... in which the State is interested.” W.Va.Code, 5-3-2 [1972].

Ill

The majority seeks to assert that the petitioner was “an essential party” to the litigation, and had a “real interest” in the outcome. They do not define these terms, nor do they explain their assertion. With sloppy language the majority has attempted to obscure the fact that the doctrines at which they hint do not support their conclusions. This is understandable, for had they been precise they would have found themselves obliged to rewrite entire bodies of law.

In order to have any meaning at all, “essential party” must refer to “necessary” or “indispensable” parties. Under the four-part test created by this Court in Pioneer Co. v. Hutchinson, 159 W.Va. 276 , 220 S.E.2d 894 (1975) Secretary Manchin is not an indispensable party: (1) He has no interest distinct or severable from the question of the statute’s constitutionality; (2) In his absence the federal court could have rendered justice between the parties before it; (3) Any decree the Court would *796 make would have had no injurious effect on any legitimate interest of his; (4) A final determination arrived at by the Court without his presence would neither have been inconsistent with equity, or with good conscience. This analysis is consistent with that of Professor Lugar. Commenting on Rule 19, W. Va. R. C.P., he states that indispensable parties are parties “who ought to be parties if complete relief is to be accorded between those already parties.” Lugar and Silverstein, West Virginia Rules, p. 171. Since the Secretary of State admittedly agrees with the plaintiffs in the federal case, complete relief can be granted in this case without his interference.

A “necessary” party is similar to an “indispensable” party. A necessary party has been stated to “have an interest in the controversy, but one which is separable from that of parties before the Court” as opposed to an indispensable party, who has “an interest in the controversy of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” 14A M.J., Parties § 3. His position as Secretary of State confers neither such interest on Mr. Manchin, and he would not have been considered either “necessary” or “indispensable” had he not been selected as the nominal party.

The majority also states that Mr. Man-chin, or the office of the Secretary of State, (it is not clear which, the majority simply says “petitioner”), has a “real interest” in the outcome of the suit. Once again the majority has used language resembling terms used to describe accepted legal doctrines in order to call to mind those doctrines without being required to reconcile those doctrines with the opinion. To be given any meaning at all, the “real interest” language used by the majority must be deemed to refer to the “real party in interest” doctrine.

The “real party in interest” doctrine, as it applies to defendant states and state officers, contemplates the State to be the real party in interest where the State has “a substantial interest in the outcome of the suit”, State of West Virginia v. Haynes, 348 F.Supp. 1374, 1377 (S.D.W.Va. 1972). The pettifoggerous language used by the majority represents their attempt to counter the Attorney General’s assertion that Secretary Manchin is a merely nominal party. No number of misapplied legal “analogies” can change the fact that on this point the Attorney General is right.

As the federal Supreme Court has made clear, there are circumstances in which in-junctive relief may be sought in federal court against a defendant state. Ray v. Atlantic Richfield Co., 435 U.S. 151 , 98 S.Ct. 988 , 55 L.Ed.2d 179 (1978), Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908). These suits are made possible by the nominal party device, since the doctrine expounded in Ex parte Young, supra, removes the Eleventh Amendment bar only in suits against state officers, not in suits against the State or its agencies. National Ass’n for the Advancement of Colored People v. California, 511 F.Supp. 1244 (D.C.Cal.1981). “To be sure,” one authority has observed, “the doctrine of Ex parte Young has a fictive quality to it; nonetheless, it serves as an effective mechanism for providing relief against unconstitutional conduct by state officers and for testing the constitutionality of the state statutes under which they act.” Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3524. The nominal party device is part of a package of judicially endorsed procedural devices which serve the policy of seeing to it that constitutional claims against states are not procedurally stymied. The usual procedure in such a case is to sue the State through a nominal party — thereby sidestepping any sovereign immunity problems — and to bring an action for an extraordinary writ under the All Writs Act, 28 U.S.C. 1651 (1949), to avoid the procedural delays and frustrations of the declaratory judgment format. The majority’s discussion of the nominal party doctrine shows a flagrant misunderstanding of the history and purpose of this rather common device.

Lastly, I will point out that it is left to the plaintiff to select his nominal party, *797 and any state official whose duties include the supervision or implementation of some necessary aspect of the matter in dispute will do. The selection of the Secretary of State as the nominal party on whom to serve the federal complaint was a reasonable one, but by no means necessary. The plaintiffs in the federal suit could equally well have served the clerks of the Senate and House of Delegates and brought an action for a writ of mandamus to demand that the apportionment bill be disenrolled. The State Treasurer or the State Auditor could have been selected as the nominal plaintiff in an action for a writ of mandamus to prevent the disbursement of state funds to pay for any election alleged by the plaintiff to be unconstitutional. All fifty-five county clerks could have been named in an action to prohibit the operation of the polls in any county where the elections were to be run in an allegedly unconstitutional manner. The list of potential nominal parties goes on, but I have mentioned enough to make my point.

I suppose, at least, that we can all be grateful that the plaintiffs in the federal suit were unimaginative in their selection of a nominal party defendant. I suspect that even the hardiest federal judge would quail at the sight of fifty-five clamoring county clerks, each with legal counsel provided by the Attorney General, and each set on taking advantage of this Court’s new rule granting nominal parties the right to attempt to vindicate their personal opinions at the expense of the State, and against her interests.

. Sir William Holdsworth explains at some length the political forces which, by the end of the fifteenth century in England, "have caused the King’s attorney to become an official wholly different from the ordinary professional attorney, and have thus given to his office a wholly unique character.” Holdsworth, A History of English Law, vol VI; Methuen & Co. Ltd. and Sweet & Maxwell Ltd., London, 1971; p. 469. Whatever permutations the office of attorney general may have gone through since then, obvious and important distinctions remain. Most notably, as I discuss in the text, infra, the Attorney General is only obligated to defend an officer sued in his official capacity to the extent of that official capacity. His primary duty has always been, is now, and should always be to the State. In this sense, State officials are not entitled to the services of the office of the Attorney General in a traditional attorney-client relationship.

While I have the floor, I will also take issue with the majority's attempt at historical scholarship. I find the use of the term "attornatus regis" as early as 38 Henry III (A.D. 1254). The first general patent, giving to Thomas Derham "The power to act for the King in the Common Bench and ‘all our other courts’ ”, is dated July 13, 9 Henry IV (A.D. 1408). Holdsworth, vol. VI, at 459, n. 3, and 460.