The Associated Press

CHARLESTON -- A former justice told the Supreme Court Wednesday that a handful of leading lawmakers wait each year until after the 60-day legislative session is over, then decide how to spend millions of taxpayer dollars.

During arguments that lasted for two hours, former justice Margaret Workman said the leaders' actions are unconstitutional because the entire Legislature should designate how state money is spent.

Workman said legislative leaders do this though the annual budget digest, a document which includes a set of directives from leading lawmakers to state agencies instructing them how to spend portions of their budget.

House Speaker Bob Kiss, D-Raleigh, also manipulates money through an account in the governor's contingency fund known as the "098 account," she said.

The 098 account in the governor's contingency fund is a set of accounts to be used for emergencies or other projects that the governor deems worthwhile.

Wednesday's arguments centered around a lawsuit that challenges the constitutionality of the budget digest process.

The budget digest, a summary document prepared after the Legislature adjourns, is "innocuous on its face," Workman said.

The issue facing the court is the set of requests included in the document. Under the heading "legislative intent," the budget digest lays out suggestions on how state agencies should spend portions of their money.

The budget digest itself is not unconstitutional, but the way it's used by legislative leaders is, Workman said.

"The problem is that the digest carries the weight of law" because state agencies are afraid if they don't follow the legislative intent in the budget digest, their funding will be cut in the future, she said.

Legislative leaders routinely direct money to the their own districts and to the districts of those loyal to them, Workman argued.

Workman filed the lawsuit last year on behalf of Delegate Arley Johnson, D-Cabell, and several groups, including the League of Women Voters of West Virginia, the American Civil Liberties Union and the West Virginia Education Association.

The petition names Kiss and Senate President Earl Ray Tomblin, D-Logan, as defendants. Neither were present.

Lawyers for Kiss and Tomblin agreed that legislative leaders designate expenditures after the session is over. But suggesting "legislative intent" is not the same as appropriating money, said Jennifer Walker, who represented Tomblin.

That action is constitutional, because the money has already been appropriated, Walker said.

In an effort to summarize the question the court faces, Justice Robin Davis asked Workman, "Is this the issue, whether the Legislature should delegate this duty to a select few individuals?"

Workman nodded.

Officially, the budget digest is approved by a Budget Conference Committee, made up of 12 Senate and House leaders. Workman alleged that committee "rubber stamps" a decision that an even smaller group of leaders has previously approved.

Justice Joe Albright, a former House speaker, expressed concern on several occasions that budget digest decisions are not approved by the entire Legislature.

"How do you express legislative intent any other way than by a vote of 134 legislators?" Albright asked Walker and Mike Mowery, who represented Kiss.

Workman called budget digest decisions "secretive," saying they're made "at an unknown time and place."

Walker disputed the notion. Budget digest requests are discussed for months, while legislators are still in session, she said.

"There are mounds of letters that go back and forth, for months. There's always a school principal who needs something here or a community that needs a sewer system," Walker said.

In many respects, the arguments were a repeat performance. Justices initially heard arguments in the case in October. But after consulting on the case, they decided that former Gov. Cecil Underwood should be party to the lawsuit.

Justices also asked to hear more information about the 098 account in the governor's civil contingency fund. The plaintiffs contend that while the 098 account was handled by the governor's administrative staff, money from the account was never released without the approval of House leadership.

Although the 098 account is a separate issue from the budget digest, Workman contends it proves her point that legislative leaders have too much influence over the state's operating budget.

Brian Glasser, representing Underwood, told justices that money from the 098 account has been spent and the former governor should have no active participation in the case.