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Willis, 23 Ohio Misc. First and foremost among the documents constituting the organic law of this jurisdiction is the Constitution of the United States, for as we are informed by the State Constitution: "The State of West Virginia is, and shall remain, one of the United States of America.

We, as justices, upon taking office, are required to make oath or affirmation that we will support the Constitution of the United States and the Constitution of this State, and that we will faithfully discharge the duties of this office to the best of our skill and judgment. We will begin our scrutiny of the issues presented in this case by exploring the theoretical rationale underlying the petitioners' claim to the benefit of law in relation to the purpose and function of our system of government and the constitutional guarantee of due process of law.

It is thus the duty of courts to administer justice consistent with the organic law created by the people. The public policy statement of the people, or rule of law, with which we are concerned in this proceeding is contained in W. To accomplish the purposes of this article, the commissioner or the director of corrections management if one is appointed shall:. Delardas v. See, Moore v. Mott, Due Process of Law, at 2d. Starcher, W. In any legal system, the concept of rule of law further implies limitations on legislative power, safe-guards against abuse of executive power, proper protection of individual rights and liberties, equality before the law, and due process.

Due process of law refers to the law of the land which derives its authority from the inherent and reserved powers of the State exerted within the limits of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions, and implies conformity with natural and inherent principles of justice. The West Virginia Constitution provides that when the State seeks to deprive any person of life, liberty or property, due process of law must be applied, W.

The more substantial the deprivation inflicted by the State, the more responsible is the government to insure operative due process as the deprivation continues.

Ferrell, W. We are therefore presented with three basic issues by this petition: A whether the petitioners have a constitutional or statutory right to rehabilitation; B whether the respondents have a legal duty to provide rehabilitative services that they have failed to fulfill; and C whether the petitioners have another adequate remedy at law.

This is the greatest deprivation of liberty which the State can lawfully inflict, and all actions of the State with respect to deprivations of this magnitude are subject to strict scrutiny. The concept of a system governed by rule of law implies the subordination of all authorities, be they legislative, executive, or judicial, to certain principles which would generally be accepted as characteristic of law.

The legislative powers are vested in a senate and house of delegates, which are given detailed instructions in article 6 of the State Constitution respecting the procedures by which laws may be enacted. Magistrates are their trustees and servants, and at all times amenable to them. And this judicial power the people vested "solely in a supreme court of appeals and in the circuit courts, and in such intermediate appellate and magistrate courts as shall be hereafter established by the legislature, and in the justices, judges and magistrates of such courts.

Among the powers so reserved to the states is the exclusive regulation of their own internal government and police; and it is the high and solemn duty of the several departments of government created by the State Constitution to guard and protect the people of this State from all encroachments upon the rights so reserved.

Through this legislative due process the public consensus becomes a rule of law.

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The right to the benefit of law is one of the fundamental rights bestowed upon the people by the Constitution. After reserving to themselves specific rights of which the foregoing are examples, the people then proceeded to create the republican form of government as contemplated by the Constitution of the United States. See Jones v.

Before this court may properly issue a writ of mandamus in response to the petitioners' claims, three elements must co-exist: 1 the existence of a clear right in the petitioners to the relief sought; 2 the existence of a legal duty on the part of the respondents to do the thing the petitioners seek to compel; and 3 the absence of another adequate remedy at law. Calendine, W. Citing this language from Harris, the petitioners argue that incarceration in the West Virginia State Prison for Women at Pence Springs does not bear a rational relationship to the rehabilitative purpose of confinement where the prison administration denies inmates meaningful programs of education and treatment.

The petitioners assert that they have a right to rehabilitation by virtue of the substantive due process mandate of article 3, section 10 of the West Virginia Constitution, which provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law Essentially, the petitioners appear to be saying that they have a constitutional right to the benefit of the rules of law which constitute the body of authority through which the legitimate will of the people proceeds.

McDonnell, U. Procunier, U. The petitioners are therefore clearly entitled to enforce their fundamental right to the benefit of law as guaranteed by the West Virginia Constitution. The power of the State to exclusively regulate its own internal government and police, however, is subject to the Guaranty Clause of the United States Constitution, which provides: "The United States shall guarantee to every State in this Union a Republican Form of Government The classical American form of republican government was adopted by the people of West Virginia in the State Constitution.

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Through the State Constitution the people provided that "[t]he legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time The legislative branch of government is the first of these three departments dealt with by the State Constitution.

These article 6 procedures are the law of the land and the Legislature is bound by its oath to follow that law. Thus we see that the people, acting through their republican form of government, have enacted a rule of law which says that West Virginia penal institutions shall provide programs for the classification, education, and treatment of inmates. We held in State ex rel.

Poindexter v. The petitioners have been imprisoned. There are two different bodies of law which justify the petitioners' position. Government by rule of law means more than that government has the duty to maintain law and order; it also means that the government itself is subject to rules of law, and cannot disregard the law, or remake it to suit itself without heeding those procedures specified by law. See, D. Walker, The Oxford Companion to Law, supra.

In this sense our republican form of government embodies concepts of procedural and substantive due process which guarantee that the people receive the benefit of law as enacted by their Legislature. The culmination of these procedures in law, law being a public policy statement of the people acting through their legislature in the republican form of government.

First, as we have already discussed, the republican form of government which exists under the West Virginia Constitution, by its nature encompasses a concept of substantive due process which insures that the people receive the benefit of the laws enacted by the Legislature. The responsibility to see that the law enacted by the people is enforced rests primarily upon the executive department. What is commonly meant by this phrase is that we live by rule of lawa concept of utmost importance, but having no defined nor readily definable content.

When, however, the executive department fails to expedite the will of the people as expressed by the Legislature, the people may petition the courts by way of extraordinary proceedings such as mandamus, used here to require the executive branch to comply with the law enacted by the Legislature.

This is a primary guaranty of due process. Alabama, U. Hardy, U. Hampton, S. Thus, if due process of law has any meaning it is that there is no sovereign unless he conforms to the principles of legality. Once a rule of law has been adopted, all of those classes of people who benefit from the substance of that rule are entitled to have those public officials who are charged with administering the law, administer it for their benefit.

For example, article 2, section 2 of the West Virginia Constitution provides that "[t]he powers of government reside in all the citizens of the State, and can be rightfully exercised only in accordance with their will and appointment. It is well established that convicted prisoners do not forfeit the fundamental protections of the Constitution by reason of their conviction and confinement.

It is in the performance of this duty that we are of necessity called upon to interpret the meaning of the law enacted by the Legislature in order to insure that justice is done and the benefits of law are bestowed upon the people as intended by the Legislature.

The State Constitution creates a republican form of government through which the people express their consensus of what public policy should be. The respondents are Philip J. The petitioners seek a writ of mandamus to compel the respondents to provide them with meaningful educational and rehabilitative programs and to permit them daily exercise, as mandated by W. As we read the law the Legislature has passed, we are lead to the unavoidable conclusion that by virtue of the constitutional guarantee of due process, the inmates of the women's penitentiary, as well as other classes of citizens, are entitled to the benefit of law which the Legislature has enacted.

We are admonished by the Constitution we have sworn to uphold that "[f]ree government and the blessings of liberty can be preserved to any people only by a firm adherence to justice The fundamental principles which must guide us in the interpretation of the law are those principles embodied in the documents constituting the organic law, i. Harris v. County Court, W. Moore, W. Damron v. Consequently, the people incarcerated in the penitentiary, like all other citizens, have a constitutional right, guaranteed by due process as it operates through the republican form of government, to enjoy the benefit of this legislatively enacted rule of law.

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It is often said that we in America live in a land where we have a government of laws and not of men. But before that specification of form the people reserved to themselves certain powers. Accordingly, it is important to remember that the constitutional guarantee of due process is primarily a guarantee of legality itselflegality not of the formal or superficial kind, but of the fundamental inherent legality which is based upon tested principles of constitutional government.

It is evident from the provisions of W. It is also evident that the rehabilitative goal embodied in these statutes is deed to benefit the class of which the petitioners are members. These principles include the fundamental concepts of justice, morality and fairness. It is against this framework of legality that the claims of the petitioners must be tested.

These constitutional provisions respecting mandatory legislative procedures can therefore properly be deemed a form of procedural due process. Finally, the people also provided in the State Constitution that "[n]o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers. The Constitution of the United States of America, and the laws and treaties made in pursuance thereof, shall be the supreme law of the land.

The people, wisely anticipating that men are not angels and knowing the mischief and injustice that can result from unequal application of the law, or from the failure of government to follow the law of the land, provided in their organic law that "[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.

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This is an original proceeding in mandamus. In summary, statutory law is the public policy statement of the people acting through the legislative branch of the republican form of government. Cleek, Deputy Atty. Having thus created a legal devise by which public policy could be addressed and law established, the people, acting through the State Constitution, next created the executive department, see W. Should the Governor fail to take care that the laws be faithfully executed, or refuse to expedite the will of the people as expressed through their Legislature, redress is afforded by application to the judiciary, the third branch of the republican form of government created by the people in the State Constitution and guaranteed by the Constitution of the United States.

Philip J. Chauncey H. Browning, Atty.

By the terms of our organic law the people are entitled to the benefit of law enacted by their legislative representatives. The second body of law which justifies the petitioners' claims has grown around the substantive due process mandate contained in Article 3, section 10 of the West Virginia Constitution.