______________________________________________________________
2. “In
determining whether to entertain and issue the writ of prohibition for cases
not involving an absence of jurisdiction but only where it is claimed that the
lower tribunal exceeded its legitimate powers, this Court will examine five factors:
(1) whether the party seeking the writ has no other adequate means, such as direct
appeal, to obtain the desired relief; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3) whether the lower
tribunal's order is clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent disregard for
either procedural or substantive law; and (5) whether the lower tribunal's order
raises new and important problems or issues of law of first impression. These
factors are general guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue. Although all five factors
need not be satisfied, it is clear that the third factor, the existence of clear
error as a matter of law, should be given substantial weight.” Syllabus
Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
3. “Upon judicial review of a contested case under the West Virginia Administrative Procedure[s] Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: '(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.'” Syllabus Point 2, Shepherdstown V.F.D. v. W.Va. Human Rights, 172 W.Va. 627, 309 S.E.2d 342 (1983).
4. In
a circuit court's final disposition of an administrative appeal pursuant to W.Va.
Code § 29A-5-4 (1998) of the Administrative Procedures Act, the circuit
court is not authorized to order a State administrative agency to cease the use
of certain procedures and to direct the State agency to draft and implement new
procedures which are subject to the circuit court's review.
Maynard, Justice:
Petitioner
Joseph Cicchirillo, Commissioner of the West Virginia Division of Motor Vehicles
(hereafter “the Commissioner”), seeks a writ of prohibition to prevent
the enforcement of a portion of the July 5, 2005, final order of Respondent,
the Honorable Jack Alsop, Judge of the Fourteenth Judicial Circuit, that ordered
the Commissioner to cease the use of certain procedures in license revocation
proceedings and directed the Commissioner to draft new procedures which are subject
to the circuit court's review. For the reasons that follow, we grant the writ
of prohibition.
3)
The Commissioner shall forthwith cease and desist the unconstitutional procedures
currently being implemented in revocation of license proceedings, as defined
herein.
4)
In accordance with the principles enunciated herein, the Commissioner shall draft
rules and regulations, requiring the hearing examiner's recommendations to be
signed and submitted to the Commissioner for his consideration.
5)
Any decision by the Commissioner to modify, vacate, reverse, or reject, the hearing
examiner's recommendations shall set forth written findings, to allow a meaningful
appellate review.
6)
This Court retains jurisdiction to review the proposed regulations which shall
be submitted within ninety (90) days to this Court.
In his
petition for a writ of prohibition, the Commissioner does not challenge the circuit
court's conclusion that the practice of permitting staff personnel to substitute
their judgment for that of the hearing examiner violates Mr. Rose's and Ms. Tonkin's
due process rights or the circuit court's reversal of Mr. Rose's and Ms. Tonkin's
license revocations. Rather, he seeks to prevent the enforcement of the circuit
court's directives set forth in paragraphs three through six above. (See
footnote 2) We granted a rule to show cause. For the reasons that
follow, we now grant the writ.
In
determining whether to entertain and issue the writ of prohibition for cases
not involving an absence of jurisdiction but only where it is claimed that the
lower tribunal exceeded its legitimate powers, this Court will examine five factors:
(1)
whether the party seeking the writ has no other adequate means, such as direct
appeal, to obtain the desired relief; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3) whether the lower
tribunal's order is clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent disregard
for either procedural or substantive law; and (5) whether the lower tribunal's
order raises new and important problems or issues of law of first impression.
These factors are general guidelines that serve as a useful starting point
for determining whether a discretionary writ of prohibition should issue. Although
all five factors need not be satisfied, it is clear that the third factor,
the existence of clear error as a matter of law, should be given substantial
weight.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483
S.E.2d 12 (1996). With these standards to guide us, we now determine the propriety
of granting a writ of prohibition in the instant case.
(a) Any party adversely affected by a final order or decision in a contested case is entitled to judicial review thereof under this chapter, but nothing in this chapter shall be deemed to prevent other means of review, redress or relief provided by law.
(b)
Proceedings for review shall be instituted by filing a petition, at the election
of the petitioner, in either the circuit court of Kanawha County, West Virginia
or in the circuit court of the county in which the petitioner or any one of the
petitioners resides or does business[.]
In addition, W.Va. Code § 29A-5-4(g) provides:
The
court may affirm the order or decision of the agency or remand the case for further
proceedings. It shall reverse, vacate or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners have been prejudiced
because the administrative findings, inferences, conclusions, decision or order
are:
(1)
In violation of constitutional or statutory provisions; or
(2)
In excess of the statutory authority or jurisdiction of the agency; or
(3)
Made upon unlawful procedures; or
(4)
Affected by other error of law; or
(5)
Clearly wrong in view of the reliable, probative and substantial evidence on
the whole record; or
(6)
Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
Concerning a circuit court's authority in reviewing contested cases under W.Va.
Code § 29A- 5-4, this Court has held:
Upon
judicial review of a contested case under the West Virginia Administrative Procedure[s]
Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order
or decision of the agency or remand the case for further proceedings. The
circuit court shall reverse, vacate or modify the order or decision of the
agency if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences, conclusions, decisions
or order are: “(1) In violation of constitutional or statutory provisions;
or (2) In excess of the statutory authority or jurisdiction of the agency;
or (3) Made upon unlawful procedures; or (4) Affected by other error of law;
or (5) Clearly wrong in view of the reliable, probative and substantial evidence
on the whole record; or (6) Arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.”
Syllabus Point 2, Shepherdstown V.F.D v. W.Va. Human Rights, 172 W.Va.
627, 309 S.E.2d 342 (1983). We find that the unambiguous provisions of W.Va.
Code § 29A-5-4 and this Court's prior holdings indicate that W.Va. Code § 29A-5-4
does not vest circuit courts reviewing administrative appeals of contested
cases with the authority to order an agency to cease a certain practice or
to direct an agency to promulgate new procedural rules which are subject to
the circuit court's review. Rather, a circuit court's disposition of an administrative
appeal is limited to affirming, remanding, reversing, vacating, or modifying
the agency's disposition of a contested case.
Our conclusion
is further supported by this Court's decision in State ex rel. Stewart v.
Alsop, 207 W.Va. 430, 533 S.E.2d 362 (2000). In Stewart, the complainant
lodged an administrative complaint against the Board of Education of Clay County.
After an adverse decision, the complainant filed a Level IV citizen's appeal
with the State Superintendent of Schools which was summarily dismissed. Instead
of appealing the State
Superintendent's dismissal, the complainant sought a writ of mandamus and/or
prohibition in the Circuit Court of Clay County against the Clay County Board
and the State Superintendent. The State Superintendent responded by filing
a motion to dismiss in which he asserted that venue was improper, and the circuit
court denied the motion. The State Superintendent then sought a writ of prohibition
in this Court to prevent the Circuit Court of Clay County from proceeding with
the complainant's action.
This
Court first discussed the nature of the complainant's action before the circuit
court. The State Superintendent contended that the proceeding was an original
action seeking equitable relief while the circuit court treated the matter as
an appeal from an administrative proceeding. We disagreed with the circuit court
and found that the complainant's action was not properly instituted under W.Va.
Code § 29A-5-4 of the Administrative Procedures Act. After noting that the
complaint below was styled “Amended Petition for Writs of Mandamus and/or
Prohibition,” this Court explained that W.Va. Code § 29A-5-4 provides
for an appeal of an administrative decision. We concluded that “[s]imply
put, [W.Va. Code § 29A-5-4] does not authorize relief by way of an extraordinary
writ.” 207 W.Va. at 433, 533 S.E.2d at 365. (See
footnote 6)
Significantly,
in the instant case, the challenged portions of the circuit court's order grant
essentially extraordinary relief against the DMV. Specifically, the circuit court
ordered what amounts to mandamus relief by seeking to compel the Commissioner
to replace his procedural rules with new rules which are subject to the circuit
court's review. See Puritan Coal Corp. v. Davis, 130 W.Va. 20, 32, 42
S.E.2d 807, 813 (1947) (opining that “[t]he writ of mandamus will issue
to compel the performance of a duty which devolves by law upon public officers
or others against whom the writ may be invoked . . .”). We believe, however,
that just as W.Va. Code § 29A-5-4 does not authorize relief by way of an
extraordinary writ, neither does it authorize a circuit court to sua sponte order
what is
essentially extraordinary relief in its final order disposing of an administrative
appeal.
Therefore,
we now hold that in a circuit court's final disposition of an administrative
appeal pursuant to W.Va. Code § 29A-5-4 (1998) of the Administrative Procedures
Act, the circuit court is not authorized to order a State administrative agency
to cease the use of certain procedures and to direct the State agency to draft
and implement new procedures which are subject to the circuit court's review.
Accordingly, to the extent that the circuit court's July 5, 2005, final order
directed the Commissioner to cease utilizing certain procedures and to draft
new procedural rules subject to the circuit court's review, we find that the
order constitutes clear error as a matter of law.
In sum,
we find that the circuit court exceeded its legitimate authority in its review
of an administrative appeal pursuant to W.Va. Code § 29A-5-4 and committed
a clear error of law in ordering the Commissioner the cease certain practices,
in directing the Commissioner to draft new rules, and in retaining jurisdiction
to review the rules. When this Court determines whether to issue the writ of
prohibition for cases where the lower tribunal exceeded its legitimate powers,
we give substantial weight to the existence of clear error as a matter of law.
Therefore, in the instant case, we grant the writ of prohibition prayed for by
the Commissioner. (See
footnote 7)
Writ granted.