Civics 101: The balance of power is due to the checks inherent in a three-branch system of government. One key part of that balance is the power of the legislative branch to control the state’s purse. In every state but one, that is the delicate balance that preserves democracy.
In West Virginia, however, the court has a blank check. The Legislature has no control over the amount of money that the court demands and spends every year. The court spends “its” money in any way it pleases. West Virginia’s governance system is, therefore, out of balance.
In 49 other states, the Legislature and the executive work with the judicial branch to determine how much money should be appropriated for the court’s work. But not so in West Virginia, where the Supreme Court has complete control of what is budgeted for the judiciary.
Before I go on, I’m compelled to make a confession. For a dozen years, as the court’s administrative director, I took advantage of this situation. Who wouldn’t enjoy the ability to tell — instead of ask — the Legislature what an entire branch of government is going to spend? Telling is a whole lot easier than asking, negotiating and, ultimately, finding a way to agree, typically through compromise, with what the Legislature wishes on issue after issue.
Even as I did so, I knew I was in the wrong from even the most elementary civics point of view. But I worked for five justices, all of whom agreed (a rarity on most any subject) that the court’s budget privilege is sacred, and that no one who worked for the court should ever suggest otherwise.
After all, the court itself had ruled four decades ago (State Ex Rel. Bagley v. Blankenship) that it alone has complete control over the judiciary’s own appropriations. Fancy that — the court ruled in its own favor!
Still, why does it matter who controls that approximately $140 million the court appropriates for itself annually? Besides that pesky little issue of the balance of power (with West Virginia’s judiciary having grabbed far more power than the framers envisioned), what’s the harm?
It matters for at least two reasons: First, the court can spend its money on whatever it wants, without question from legislators. Reasonable people might question how the court spends their tax dollars. An investigative reporter would likely find some expenditures that would cause the public great alarm.
Second, the Legislature is that branch which sets policy initiatives through the passage of bills. That legislative process is at the heart of who we are as a state. The way the Legislature gets what it wants is through funding certain initiatives, and holding all state spending units responsible for fulfilling policy objectives.
The Legislature has no such authority with the court.
Here’s an example of how the court thumbed its nose at the Legislature: The Legislature determined that certain sex offenders should have supervision beyond incarceration. Further, the code clarifies that such post-incarceration supervision should be handled by probation officers who are in a focused unit for handling that most unique and horrific set of criminals.
For years, the court followed the Legislature’s wishes. But in September, with what appears to be a reckless disregard for public safety, the unit was eliminated and 17 probation officers were fired.
There’s only one way to rein in an out-of-control court: The Legislature needs to pass a bill to amend the state’s Constitution via a vote of the people. If the Legislature wants to regain its control of the purse and preserve a true balance of power, it will enact such legislation in the coming year, conveniently, an election year, and allow the people to weigh in themselves.
Otherwise, the court will continue to spend money with no accountability. And West Virginia’s government will remain distinctly unbalanced.