Dissenting:
I dissent to the majority opinion.
I concede that this is a masterfully drafted opinion, because only an opinion which has been so carefully crafted could lull the reader into believing that it is proper to hold that a constitutional provision means one thing to*697day, but another tomorrow. In upholding House Bill 4031, the majority uses enough smoke and mirrors to put the modern-day illusionist David Copperfield to shame. Just as Copperfield made the Statue of Liberty disappear and later reappear, so the majority makes the Constitution disappear in 1994 and re appear in 1995.
The majority upholds the validity of House Bill 4031 on the flimsy basis of two Attorney. General opinions, the failure of the Governor of this State to perform a discretionary duty, and the doctrine of retroactivity.
Quite frankly, I have never known this Court to use the opinion of an Attorney General as a crutch to declare an act of the Legislature valid.1 In fact, the majority cited two cases as standing for the proposition that opinions of the Attorney General are merely persuasive, not binding. The majority then concluded: “However, in this case we believe the Attorney General opinions failed to take into account the historical background surrounding the adoption of § 33 of Article VI.” Therefore, the majority implies that these opinions were wrong. Yet, these opinions are considered justification for holding House Bill 4031 valid.
The majority correctly states that the Attorney General opinions are incorrect. However, they essentially conclude that because they believe Article VI, § 33 to be ambiguous, the Legislature should not be penalized for relying on what the majority determined to be the incorrect interpretation.2 I disagree. Just because the Attorney Generals couldn’t read and understand the plain meaning of the section doesn’t mean that the section is ambiguous. The majority even admits that in the future the Commission’s recommendation must be submitted in the first fifteen days of a regular session in four-year cycles which began in 1971. Yet, this resolution was submitted long after the first fifteen days of the 1994 regular session and not in the fourth year of the cycle. It is clearly the “obvious” interpretation of § 33— and the majority opinion so holds for the future — that compensation resolutions can only be submitted in four-year cycles which began in 1971. However, the majority dances around the maypole and declares the obvious ambiguous.
The second illusion used in the majority opinion concerns the Governor’s failure to perform his duty to appoint a sufficient number of citizens to the Commission to create a quorum in order that the Commission could meet. Is that a valid reason to declare an unconstitutional act of the Legislature valid? As a matter of fact, the Governor cannot be faulted for reading Article VI, § 33 of the Constitution (as the majority interprets it beginning in 1995) as stating that a resolution must be submitted within the first fifteen days of a regular legislative session in the fourth year, calculated from 1971. That being true, when he was pressured by the Legislature — not by citizens, but by the Legislature — to fill the vacancies on the Commission with their recommendations, he certainly had a right to believe that the fifteen-day period had passed and that 1994 was not the fourth year, as calculated from the 1971 regular session. The majority admits, in discussing the Governor’s failure to fill the vacancies on the Commission, that they cannot find any case law that would govern the effect of the Governor’s failure to appoint members to the Commission. To put part of the blame for the passage of House Bill 4031 on the Governor is simply unconscionable.
One of the fallacies in the majority’s reasoning is that they treat the Citizens Legislative Compensation Commission as an administrative agency in theory, if not in actual fact. It is not. It is a constitutional commission created by the citizens of the State when they approved the constitutional amendment in Article VI, § 33. The majority cites a number of cases, such as State ex rel. Broth-*?erton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976) and Serian v. State by and through the West Virginia Board of Optometry, 171 W.Va. 114, 297 S.E.2d 889 (1982), for the proposition that failure of the executive to appoint people to statutory boards paralyzes the operation of administrative agencies. Those eases involved administrative agencies performing necessary functions in order for the agency to operate properly. That is not true in this case. Regardless of whether the Commission ever met, the Legislature could still operate. The compensation and expenses the legislators receive as a result of the Commission’s recommendations have nothing to do with the general operation of the legislative branch of government.
I also find that applying the principle of retroactivity is unnecessary in this case. According to Article VI, § 33, and the majority opinion, the year 1995 will be the proper year in which a compensation resolution should be submitted to the Legislature. Rather than tortuously attempt to hold House Bill 4031 valid, the majority should have held House Bill 4031 unconstitutional and pointed out that, in accordance with their opinion as to the proper interpretation of Article VI, § 33, a similar resolution could properly be submitted in the first fifteen days of the regular session in January, 1995. That simple solution does not require this Court to manipulate precedent to stand as authority for their decision to make improper actions valid.
That being said, I also dissent because the petitioners, intervenors, and the majority miss the heart of the issue: The deprivation of the citizens’ rights through the abuse of legislative power.3 This has become all too prevalent in this day and age.
As the majority points out, prior to the adoption of Article VI, § 33 of the West Virginia Constitution, as amended in 1970, the Legislature had to go to the citizens of this State with a constitutional amendment requesting a pay raise. To have even a hope of obtaining approval of such a request, the Legislature had to include additional duties in order to justify the increased compensation. In the general election of 1970, the citizens were persuaded to give up their constitutional right to control the compensation of legislators by delegating that power to a Citizens Legislative Compensation Commission, which is a constitutional citizens commission, not a government or statutory commission. For the first time, this amendment allowed the Citizens Commission to set compensation, allowances, and expenses. The citizens did not relinquish this power lightly.
In reading the amendment, you realize, as the legislature did in 1970, that in order to approve the amendment, the citizens had to be assured that the Legislature would have nothing to do with setting their own compensation. That was accomplished by the following provisions of § 33: (1) The Commission shall be composed of seven members who have been residents of this State for at least ten years prior to the date of appointment; (2) members are to be appointed by the Governor of this State without the need of confirmation of the Senate; (3) the members shall be broadly representative of the public at large; and (4) members of the Legislature and officers and employees of the State or of any county, municipality, or other governmental unit of the State shall not be eligible for appointment to or serve as a member of the Commission. How much clearer can it be? The Legislature should have no control over the determination of their own compensation, allowances, or expenses.
But did that happen in the passage of House Bill 4031? Clearly not. In the closing weeks of the 1994 regular session of the Legislature, the Governor was coerced by legislators — not citizens, legislators — into making appointments to the Commission of people recommended by the legislators. Why do I say coerced? Because the Governor’s legislative program was stalled in the Legislature, and if he was to get any of his programs passed, the demand was to fill the vacancies on the Commission with legislative recommendations. The President of the West Virginia Senate, not a member of the Commission with whom the power to call meetings was vested, wrote a letter to the *699Attorney General requesting an opinion as to when the Commission could meet. Legislators contacted the proposed chairman of the Commission prior to the Governor's appointment about his feelings on a legislative pay raise, including the amount, and got an agreement as to how certain travel expenses would be handled in the future.
So, it was no surprise at all that a typed compensation and expense resolution, with fill-in blanks as to amount, was sent to the Commission members, including the new ones, as the agenda for the only Commission meeting held prior to submission of the resolution on March 3, 1994. The resolution included intricate details about payment of compensation for extra duties performed by legislators and even delegated to certain legislative leaders the Commission’s power to set extra compensation for some members. The record of the meeting-is devoid of any discussion by the Commission about these matters. Nor was there any discussion about any of the matters contained in the typed resolution, by the Chairman concerning his private conversations with legislators or by any member of the Legislature appearing before the Commission, to explain the need for the proposed items in the resolution. Nor did the Commission attempt to call any legislator or legislative staff to explore the need for a pay raise, as you would think a duly independent Citizens Commission would do, before recommending an increase in compensation from $6,500.00 to $20,000.00.
Can anyone believe that this was not a legislative preemption of the authority of the Citizens Legislative Compensation Commission to achieve their own desires? The Citizens Commission was transformed into an arm of the Legislature and turned its back on the citizens they were appointed to represent. The blame lies not so much with the Commission as it does with those legislators who participated in the takeover of the Citizens Commission.
The last issue which the majority touches on, but quickly forgets, is the question of due process. “No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.” W.Va. Const. Art. Ill, § 10. The intervenors argue that due process was a sham.
What exactly is required by due process generally depends upon the facts of each case. More than anything else, however, due process means “fundamental fairness.” Pinkerton v. Farr, 159 W.Va. 228, 220 S.E.2d 682 (1975). Inherent in our form of government is the concept that due process insures that the citizens of this State receive the benefit of all legislative enactments. Hodge v. Ginsberg, 172 W.Va. 17, 303 S.E.2d 245 (1983). See also Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).
The record in this case reveals a process that is fundamentally unfair to the people of West Virginia. By refusing to take issue with the Legislature’s actions, the majority condones undisclosed ex parte communications and knuckles under to legislative pressure.4 The citizens of West Virginia are entitled to an unbiased Commission and a fair recommendation before being deprived of their tax dollars.
The only way that government officials can re-establish the trust of the citizens they are elected or appointed to represent is to be completely open with the people of West Virginia. Circumvention of the Constitution or the statutes, even to achieve an important goal, serves only to weaken our government. Government officials must go beyond the procedure that is required to instill confidence in the citizens.
The only people who got any due process in this instance were the legislators. Are we *700not entitled to more from our elected officials? Apparently not.
. It is noteworthy to point out that the majority never finds that House Bill 4031 is constitutional, but simply holds it to be valid.
. The majority found that allowing a compensation resolution to be submitted more often than every four years would emasculate the language in the latter portion of the third paragraph, which sets out the four-year cycle beginning after the 1971 regular session of the Legislature. Further, they felt that such an interpretation would be contrary to the Court's normal rule of interpretation requiring the Court to consider all parts of a constitutional or statutory provision.
. I also take issue with the dissent authored by Justice Neely. It certainly should be recognized as the ultimate treatise on how to deprive citizens of their constitutional rights.
. Like the E.P.A. regulation in Sierra Club v. Costle, 657 F.2d 298, 401 (D.C.Cir.1981), discussed in the majority opinion, nothing in Article VI, § 33 forbids ex parte communication with the Commission. Likewise, I do not believe such communication should be forbidden, absent a constitutional provision to the contrary. What should be required, however, is that any ex parte communication between the Commission and legislators be reported at the public meeting. The balance between individual communication and public reporting of the contact can only be maintained if the Commission members are truly independent and not members appointed at the legislature's request.