Can the West Virginia Board of Pharmacy issue a declaratory ruling that strikes down part of its own enabling statute as void for vagueness, preempted, or unconstitutional?

Official title

Opinion of the Attorney General's Office Regarding Whether the West Virginia Board of Pharmacy Has the Authority to Entertain and Issue a Declaratory Ruling Pertaining to the Interpretation, Validity, and Constitutionality of Certain Aspects of the West Virginia Pharmacy Act

Plain-English summary

Walgreen Co. and Kroger Co. filed a petition asking the West Virginia Board of Pharmacy to issue a declaratory ruling under W. Va. Code § 29A-4-1 holding W. Va. Code § 30-5-12b (a section of the Pharmacy Act) void for vagueness, preempted by federal law, void under the doctrine of desuetude, and prospective only in effect. The Board's general counsel asked the AG whether the Board could even consider such a petition.

The AG said no, on three reasons running together.

The Board's authority is limited by its enabling statute. Rowe v. West Virginia Dept. of Corrections sets the basic rule: an administrative agency "may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority." The Pharmacy Act does not give the Board authority to interpret its own enabling statute except by promulgating rules. Even rules cannot, "under the guise of 'interpretation,'" modify or rewrite a statute (Consumer Advocate Division v. Public Service Commission). The Board cannot declare its own enabling statute void.

Declaratory rulings under § 29A-4-1 are narrow. The statute lets agencies decide "applicability to any person, property or state of facts." A declaratory ruling is binding "between the agency and the petitioner on the facts alleged" and "shall not be binding on any other person." It is built for fact-specific applications, not for broad legal pronouncements. The Walgreen/Kroger petition asked the Board to declare a statute facially unconstitutional, which is exactly what § 29A-4-1 doesn't do. The Maryland Court of Special Appeals applied the same reading to its parallel statute (McIntyre v. Board of Education).

A petition seeking broad legal conclusions looks more like a request for a legislative or interpretive rule, which has its own procedure (notice and comment, legislative and judicial review under § 29A-3-9). The Board cannot use the declaratory-ruling vehicle as an end-run around rule-making.

Separation of powers compounds the problem. W. Va. Const. art. V, § 2 forbids one branch from exercising the powers of another. State ex rel. Barker v. Manchin called the separation of powers "part of the fundamental law of our State" that "must be strictly construed and closely followed." Striking down a statute as unconstitutional is a judicial function. An administrative agency that did so would invade the judiciary's province. Florida cases (Suntide and Padilla) reach the same conclusion: an agency abuses its authority by using declaratory statements as a vehicle for opposing parties to bypass the courts.

So the Board could not entertain the petition.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is a declaratory ruling under § 29A-4-1?

A: A formal agency statement applying a rule or statute to a specific fact pattern. § 29A-4-1: "A declaratory ruling, if issued after argument and stated to be binding, is binding between the agency and the petitioner on the facts alleged, . . . but it shall not be binding on any other person." It's a narrow vehicle for resolving real-world applicability questions, not a tool for sweeping legal interpretation.

Q: Why can't an administrative agency declare its own statute unconstitutional?

A: Because that would put the agency in a judicial role. As Am Jur 2d puts it (cited in the opinion): "[I]t is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable." Only the judiciary, applying the constitution, can strike down a statute. The agency would also be self-defeating: the same legislature that created the agency wrote the statute, and the agency cannot dismantle the legislature's work.

Q: Why does separation of powers matter so much in West Virginia?

A: W. Va. Const. art. V, § 2 has a strict reading. State ex rel. Barker v. Manchin: it "is not merely a suggestion, it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed." Compared with some federal jurisprudence that allows substantial overlap between branches, West Virginia keeps the boundaries firm. An agency stepping into legislative or judicial territory faces a high bar.

Q: What should an industry petitioner do instead?

A: Litigate. To challenge a statute as void for vagueness, preempted, or unconstitutional, the petitioner needs to bring an action in court. Declaratory relief is available in court (the Uniform Declaratory Judgments Act, W. Va. Code § 55-13-1 et seq.) but not before the issuing agency. The petitioner can also pursue legislative change directly with the legislature.

Q: Could the Board still interpret § 30-5-12b in some way short of declaring it unconstitutional?

A: Maybe, through a properly noticed rule-making proceeding under § 29A-3-9, with legislative and judicial review. Even there, the Consumer Advocate Division case warns that "[a] statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten." So even rule-making interpretation has limits. Anything that effectively rewrites the statute is impermissible.

Q: What is the doctrine of desuetude?

A: A common-law doctrine arguing that a statute can become unenforceable through prolonged disuse coupled with an open and notorious violation. It is rare and disfavored in most American jurisdictions. The petitioners had asked the Board to declare § 30-5-12b void under this doctrine. Whether the doctrine applies to the Pharmacy Act is not what the AG decided; the AG only decided that the Board lacked authority to make the declaration. The petitioners were free to argue desuetude in court.

Q: Does this rule apply to all West Virginia agencies?

A: Yes, in substance. Every administrative agency in West Virginia is subject to the same separation-of-powers limit and the same enabling-statute boundary. The declaratory-ruling vehicle in § 29A-4-1 applies generally under the WVAPA. So the AG's analysis is not specific to the Board of Pharmacy; it would apply to any agency receiving a similar petition.

Q: Is there a way for an agency to flag a constitutional concern?

A: Through internal channels. An agency can decline to enforce a statute it believes unconstitutional and let the petitioner challenge non-enforcement in court. It can also flag constitutional concerns to the legislature or the AG. What it cannot do is issue a binding declaratory ruling holding the statute void. That is the judicial role.

Background and statutory framework

The Pharmacy Act and the request. W. Va. Code §§ 30-5-1 et seq. is the West Virginia Pharmacy Act. Section 30-5-12b deals with specific aspects of pharmacy practice. The Board of Pharmacy's authority comes from §§ 30-5-2, 30-5-12b(1) and (p), and 30-5-28. Walgreen Co. and Kroger Co. petitioned the Board for a declaratory ruling holding § 30-5-12b void for vagueness, preempted by federal law, void under desuetude, and prospective only.

The agency authority limit. Rowe v. West Virginia Dept. of Corrections, 170 W. Va. 230 (1982), Syl. Pt. 3: "It is fundamental law that the Legislature may delegate to an administrative agency the power to promulgate rules to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority."

Consumer Advocate Division v. Public Service Commission, 182 W. Va. 152 (1989), Syl. Pt. 1: "A statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten."

The declaratory-ruling vehicle. § 29A-4-1: agencies may issue declaratory rulings as to "applicability to any person, property or state of facts." The ruling is "binding between the agency and the petitioner on the facts alleged," but "shall not be binding on any other person." It is fact-specific and narrowly binding.

§ 29A-1-2(d) distinguishes a declaratory rule from a legislative rule. § 29A-1-2(I) defines a "rule" broadly to include "every regulation, standard or statement of policy or interpretation of general application and future effect." A general legal pronouncement about constitutionality looks like a rule, not a declaratory ruling. Rules require notice and comment, plus legislative and judicial review under § 29A-3-9.

Separation of powers. W. Va. Const. art. V, § 2: "The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others . . . ." State ex rel. Barker v. Manchin, 167 W. Va. 155 (1981): "[I]t is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed."

Out-of-state consensus. McIntyre v. Board of Education, 461 A.2d 63 (Md. App. 1983), interpreting Maryland's parallel declaratory-ruling statute, narrowly construed agency authority. Suntide Condo. Ass'n, 504 So. 2d 1343 (Fla. Dist. Ct. App. 1987), warned against using declaratory statements as a "vehicle for obstructing an opposing party's pursuit of a judicial remedy." Padilla v. Liberty Mut. Ins. Co., 832 So. 2d 916 (Fla. Dist. Ct. App. 2002), said an agency "should refrain from issuing a declaratory statement until the proceedings in court conclude."

Application. The Board lacked authority to issue the declaratory ruling Walgreen and Kroger sought. The petitioners were free to pursue judicial relief, including through declaratory judgment proceedings in circuit court, but the Board could not entertain the request.

Citations

• W. Va. Const. art. V, § 2
• W. Va. Code §§ 29A-1-1 et seq. (Administrative Procedures Act)
• W. Va. Code § 29A-1-2(d), (I); § 29A-3-2(b); § 29A-3-9; § 29A-4-1
• W. Va. Code §§ 30-5-1 et seq.; § 30-5-2, § 30-5-12b, § 30-5-28
• Rowe v. West Virginia Dept. of Corrections, 170 W. Va. 230 (1982)
• Consumer Advocate Division of Public Service Commission v. Public Service Commission, 182 W. Va. 152 (1989)
• State ex rel. Barker v. Manchin, 167 W. Va. 155 (1981)
• McIntyre v. Board of Education, 461 A.2d 63 (Md. App. 1983)
• Suntide Condo. Ass'n, Inc. v. Div. of Florida Land Sales, 504 So. 2d 1343 (Fla. Dist. Ct. App. 1987)
• Padilla v. Liberty Mut. Ins. Co., 832 So. 2d 916 (Fla. Dist. Ct. App. 2002)
• A. Neely, Administrative Law in West Virginia § 4.27
• 2 Am. Jur. 2d, Administrative Law § 77

Source

• Landing page: https://ago.wv.gov/media/18126/download?inline
• Original PDF: https://ago.wv.gov/media/18126/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General
Darrell V. McGraw, Jr., Attorney General
(304) 558-2021
Fax (304) 558-0140

June 7, 2012

David E. Potters, Esq.
Executive Director & General Counsel
West Virginia Board of Pharmacy
106 Capitol Street, Suite 100
Charleston, WV 25301

Dear Mr. Potters:

This is in response to your letter of May 9, 2012, requesting an Attorney General's Opinion with respect to a petition for a declaratory ruling that has been filed with the Board of Pharmacy (hereinafter "the Board"). In said Petition, a copy of which you have provided to our office, Petitioners Walgreen Co. and the Kroger Co. seek a declaration from the Board pursuant to W. Va. Code § 29A-4-1, as to the interpretation, validity, and constitutionality of certain aspects of the West Virginia Pharmacy Act, W. Va. Code § 30-5-12b.

THE QUESTION

The issue presented in your request is whether the Board has the authority to entertain and issue the declaratory ruling sought by the Petitioners as to the proper interpretation, validity, and constitutionality of certain aspects of the Pharmacy Act.

ANALYSIS

Fundamental principles of constitutional and administrative law dictate the conclusion that the Board does not have the authority to issue the ruling sought by the Petitioners. As is the case with all administrative agencies and boards in West Virginia, which are within the Executive Branch, the power of the Board is limited by the agency's enabling statute and the West Virginia Administrative Procedures Act. Simply stated, the Board cannot act outside the scope of the authority delegated to it by the Legislative Branch, and cannot usurp the constitutional duties of the Judicial Branch. Accordingly, the Board lacks the legal power to issue the declaratory ruling sought by the Petition.

In the case under consideration, the Petitioners request that the Board issue a ruling holding that, inter alia, W. Va. Code § 30-5-12b is void for vagueness, preempted by federal law, void under the doctrine of desuetude, and/or prospective only in effect. Any of these rulings would lie outside the Board's authority: "It is fundamental law that the Legislature may delegate to an administrative agency the power to promulgate rules to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority." Syllabus Point 3, Rowe v. West Virginia Dept. of Corrections, 170 W. Va. 230, 292 S.E.2d 650 (1982).

The Board's authority has been clearly delineated by the Legislature. Nowhere in the West Virginia Pharmacy Act is the Board granted the authority to interpret its own enabling statute, except under provisions granting the Board authority to promulgate rules. See W. Va. Code §§ 30-5-2, 30-5-12b(1) & (p), 30-5-28. Accordingly, the Board is limited to the procedures generally available to administrative agencies under the West Virginia Administrative Procedures Act (hereafter WVAPA), W. Va. Code § 29A-1-1 et seq. Although the Board may possess the ability to interpret provisions of its governing statutes for general applicability by promulgating a legislative or interpretive rule, it lacks the authority to issue any such interpretation through the vehicle of a declaratory ruling.

Even the Board's promulgation of legislative or interpretive rules under the WVAPA is subject to limitation: "A statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten." Syllabus Point 1, Consumer Advocate Division of Public Service Commission v. Public Service Commission, 182 W. Va. 152, 386 S.E.2d 650 (1989).

Thus, the Board may not make any finding undermining its own statutory authority, whether through a declaratory ruling or through the formal rule-making process under the WVAPA.

"Any limitations on an agency's [statutory] right to declare or rule with respect to the applicability of its rules, etc., is determined by the scope of its own rulemaking authority." McIntyre v. Board of Education, 461 A.2d 63, 67 (Md. App. 1983). Declaratory rulings under the WVAPA are strictly limited in their scope and function. The ability of a State agency to issue a declaratory ruling is limited to questions of "applicability to any person, property or state of facts[,]" and its binding effect is narrowly circumscribed:

A declaratory ruling, if issued after argument and stated to be binding, is binding between the agency and the petitioner on the facts alleged, . . . but it shall not be binding on any other person.

W. Va. Code § 29A-4-1 (emphasis added).

In other words, a declaratory ruling may be issued only to determine the applicability of a statute or rule to a factual situation unique to the petitioner. The Petitioners here, however, do not request a ruling for this purpose; rather, the Board is asked to adopt broad conclusions of law as to the constitutionality of the Pharmacy Act. As a result, the Petition is more closely akin to a request for the promulgation of a legislative or interpretative rule than a request for a declaratory ruling. See W. Va. Code § 29A-1-2(d).

The provisions of the WVAPA applicable to these broader agency statements, including statements of policy or interpretation, highlight this latter distinction. The WVAPA defines as a rule:

. . . every regulation, standard or statement of policy or interpretation of general application and future effect, including the amendment or repeal thereof, affecting private rights, privileges or interests, or the procedures available to the public, adopted by an agency to implement, extend, apply, interpret or make specific the law enforced or administered by it or to govern its organization or procedure . . . . every rule shall be classified as "legislative rule," "interpretive rule" or "procedural rule," all as defined in this section, and shall be effective only as provided in this chapter.

W. Va. Code § 29A-1-2(I) (emphasis added). In addition, the Board must comply with the procedures contained in West Virginia Code § 29A-3-9, including notice and comment and legislative and judicial review, before issuing any such rule. Without complying with those protections, any ruling issued by the Board at the behest of the Petitioners will lack legal effect. Id. § 29A-3-2(b).

A declaratory ruling, by contrast, is binding only "on the facts alleged." W. Va. Code § 29A-4-1; see also A. Neely, Administrative Law in West Virginia § 4.27. Unlike a legislative rule, a declaratory ruling is, by its nature, a limited procedure with a limited reach and a limited application, not the broad relief sought by the Petitioners.

In short, neither the Petitioner nor the Board may use the narrow vehicle of a declaratory ruling as an end-run around the legislative process or the procedures required for the promulgation of a rule under the WVAPA.

Moreover, any attempt to issue the declaratory ruling sought by the Petition would violate the constitutional doctrine of separation of powers, by usurping the role of the Legislature in enacting laws and the role of the Judiciary in interpreting them. "Article V, section 2 of the Constitution of West Virginia, which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion, it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed." Syllabus Point 1, State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981). The Petitioners ask the Board to declare a constitutionally enacted statute invalid and unenforceable. The Board does not have the authority to make such a determination, which is the province of the Judiciary alone. See, e.g., 2 Am. Jur. 2d, Administrative Law § 77 ("[I]t is axiomatic that an administrative agency has no power to declare a statute void or otherwise unenforceable."). Further, "it is an abuse of authority for an agency to either permit the use of the declaratory statement process by one party to a controversy as a vehicle for obstructing an opposing party's pursuit of a judicial remedy, or as a means of obtaining, or attempting to obtain, administrative preemption over legal issues then pending in a court proceeding involving the same parties." Suntide Condo. Ass'n, Inc. v. Div. of Florida Land Sales, Condominiums & Mobile Homes, Dept. of Bus. Regulations, 504 So. 2d 1343, 1345 (Fla. Dist. Ct. App. 1987). Thus, the Board "should refrain from issuing a declaratory statement until the proceedings in court conclude." Padilla v. Liberty Mut. Ins. Co., 832 So. 2d 916, 919 (Fla. Dist. Ct. App. 2002).

If it is a change in statutory law that the Petitioners seek, that relief, of course, may only come from the Legislature and not from the Board. The West Virginia Supreme Court of Appeals has repeatedly declared that separation of powers prevents each branch of government from invading the province of the others. Syllabus Point 1, Consumer Advocate Division of Public Service Commission; Syllabus Point 3, Rowe; Syllabus Point 1, State ex rel. Barker v. Manchin. It is not permissible for any administrative agency to declare a law enacted by the Legislature, especially a portion of its own enabling statute, to be unconstitutional or invalid.

CONCLUSION

For these reasons, we conclude that fundamental principles of constitutional and administrative law prohibit the Board of Pharmacy from issuing the declaratory ruling sought by the Petitioners. For the Board to declare its own enabling statute unconstitutional would usurp the powers that are constitutionally vested solely in the Legislative and Judicial Branches.

Very truly yours,

DARRELL V. McGRAW, JR.
ATTORNEY GENERAL

FRANCES A. HUGHES
CHIEF DEPUTY ATTORNEY GENERAL