State of West Virginia ex rel. Michael S. White v. Michael Todt, Administrator, William R. Sharpe, Jr., Hospital; Ted Johnson, Interstate Compact Administrator, West Virginia Department of Health and Human Resources, No. 23271 (W. Va. July 8, 1996) (McHugh, C.J.):
Affirming the transfer of a person under involuntary commitment in Nebraska, but ordering the Administrator of the Interstate Compact on Mental Health to promulgate rules and regulations implementing the statute governing detention of escaped mental patients, the Court held that due process requires that laws provide explicit standards for those who apply them in order to prevent their arbitrary and discriminatory enforcement.
West Virginia Health Care Cost Review Authority v. Boone Memorial Hospital, No. 23035 (W. Va. May 17, 1996) (Cleckley, J.):
Affirming a circuit court ruling upholding an agency's determination regarding the necessity of administrative approval of a hospital's purchase of certain equipment, the Court held (1) once an administrative regulation is legislatively approved, it has the force and effect of statute, entitling it to controlling weight unless the promulgating agency exceeded its constitutional or statutory authority or was arbitrary or capricious; (2) if the language of a regulation is clear and within the authority of the enacting body, courts must apply and not construe the regulation; and (3) even where there is a conflict between a regulation and a statute, such conflict will be judicially resolved using ordinary canons of interpretation.
Michael McComas, Winifred Andrews, and Mary Blackwell v. Board of Education of Fayette County; Philip J. Tissue, President; W. Jack Flint, Ralph L. Parks, Daniel E. Wright, and Jeanne M. Young, No. 23291 (W. Va. May 17, 1996) (Cleckley, J.):
Affirming a judgment overturning a school board's decision to consolidate several schools, the Court held (1) proof of intent to violate the Open Governmental Proceedings Act, W. Va. Code § 6-9A-1, et seq., is not required; (2) in determining whether allegedly informal, private conversations are outside the provisions of the Open Governmental Proceedings Act, courts should focus on whether exclusion of the public from such conversations undermined the fundamental purposes of the Act; and (3) a planned meeting among a quorum of a school board to gather, review, or discuss information relevant to an issue before the board must be public, and if it is not, its conduct violates the Open Governmental Proceedings Act, W. Va. Code § 6-9A-3.
Appalachian Power Company, et al. v. State Tax Department of West Virginia and Charles O. Lorensen, State Tax Commissioner of West Virginia, No. 22795 (W. Va. December 8, 1995): 195 W.Va. 573, 466 S.E.2d 424:
Affirming the tax department's interpretation of a statute regarding the deductibility of company use and line loss, the Court held (1) appellate review of the interpretation of a statute or administrative rule or regulation is to be performed de novo; (2) judicial review of an interpretative rule of an administrative agency is nondeferential; (3) judicial review of a legislative rule of an administrative agency is two-pronged: (i) if the intention of the legislative branch is clear from a review of the applicable statutes, no deference is granted to the agency's position, which can be upheld only if it conforms to the legislative intent or (ii) if the intention of the legislative branch is not clear from a review of the applicable statutes, substantial deference is granted to the agency's position, which can be invalidated only if the agency has exceeded its constitutional or statutory authority or has acted in an arbitrary and capricious manner.
Shakuntala Modi, M.D. v. West Virginia Board of Medicine, No. 22792 (W. Va. November 17, 1995) (Albright, J.): 195 W.Va. 230, 465 S.E.2d 230:
Affirming an order that invalidated the imposition of professional discipline by the board of medicine where such order deviated from the findings, conclusions, and recommendations of the hearing examiner used by the board, the Court held that where an administrative agency has conducted a contested hearing through a hearing examiner or an administrative law judge, it must give detailed reasons in its decision for departure from the findings, conclusions, and recommendations of the hearing examiner or administrative law judge, particularly where the agency is basing its decision on economic, scientific, or other technical data within the agency's expertise or where the agency has not heard or received the evidence from which it is rendering different findings or conclusions.
State of West Virginia ex rel. Laura Meadows and Danny Martin v. Ken Hechler, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, No. 22875 (W. Va. July 19, 1995) (Workman, J.): 195 W.Va. 11, 462 S.E.2d 586:
Invalidating W. Va. Code § 29A-3-12(b), which permitted legislative veto of proposed administrative regulations where, despite federal statute and federal court order, the Legislature failed to approve or reject proposed nursing home regulations, the Court held such statute to violate W. Va. Const. art. V, § 1, by impermissibly encroaching upon the executive branch's obligation to enforce the law.
Wetzel County Solid Waste Authority, etc., et al. v. West Virginia Division of Natural Resources, etc., et al., and West Virginia Division of Environmental Protection, and its director, David Callaghan; and Pasquale N. Mascaro, President and Owner of Lackawanna Transport Company, No. 22778 (W. Va. July 14, 1995) (McHugh, C.J.): 195 W.Va. 1, 462 S.E.2d 349:
Rejecting numerous challenges to imposition of a solid waste assessment fee on landfill operators, the Court held (1) the solid waste assessment fee authorized by W. Va. Code § 7-5-22 is a regulatory fee rather than a tax since revenue from the fee is used for the sole purpose of defraying the costs of the administration of duties imposed upon the county or regional solid waste authorities and (2) because the imposition of a solid waste assessment fee is rationally related to the legitimate statute purpose of defraying the costs of regional or county solid waste authorities and their solid waste programs in a non-arbitrary or discriminatory manner, the equal protection and due process rights found in W. Va. Const. art. III, § 1 are not violated.
G. Frank Keen, et al. v. William Maxey, in his official capacity as Director, West Virginia Division of Forestry, and Coastal Lumber, Inc., No. 22591 (W. Va. March 24, 1995) (Neely, C.J.): 193 W.Va. 423, 456 S.E.2d 550:
Affirming an order permitting the sale of timber in Kumbrabow State Forest by the division of forestry, the Court held that W. Va. Code §§ 20-1-7(13) and 19-1A-1, et seq., clearly and unambiguously grant authority to the division of forestry to contract for the sale of timber, with the written approval of the governor, so long as such sale comports with the overall sound management of the forest.
Guy R. Hill v. Jane L. Cline, Commissioner, and the West Virginia Department of Motor Vehicles, No. 22080 (W. Va. March 24, 1995) (Neely, C.J.): 193 W.Va. 436, 457 S.E.2d 113:
Affirming a DUI revocation where a traffic stop was instituted based upon a complaint by the driver's girlfriend, the Court reaffirmed its recent holding in State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994), that whether there is reasonable suspicion depends upon the totality of the circumstances, which includes both the quantity and quality of the information known by police.
In re: Petition of Chester Snuffer for an Appeal of a Final Order of the Division of Natural Resources that Revokes Hunting and Fishing Privileges for Five Years, No. 22479 (W. Va. March 24, 1995) (Fox, J.): 193 W.Va. 412, 456 S.E.2d 493:
Reinstating an administrative order revoking a hunting and fishing license, the Court held that, pursuant W. Va. Code § 20-2-38, the director of the division of natural resources may, within his or her discretion, refuse to issue or revoke a hunting or fishing license for "cause," which includes not only the violation of specific hunting and fishing regulations, but other reasons.
Barbara L. Vest v. Board of Education of the County of Nicholas, No. 22547 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 222, 455 S.E.2d 781:
In a certified question proceeding involving the authority of the education and state employees grievance board to hear discrimination claims and the preclusive effect of any board decision on such claims, the Court held that (1) although the grievance board does not have authority to determine liability under the Human Rights Act, it has authority to grant relief to employees for "discrimination," "favoritism," and "harassment," as those terms are defined in W. Va. Code § 18-29-2, in a manner consistent with the provisions of the Human Rights Act; (2) except where provided by statute, administrative adjudication does not have preclusive effect unless the decision was rendered pursuant to specific statutory authority, the agency's procedures were substantially similar to court procedures, and the issues litigated were identical; and (3) a civil action filed pursuant to the Human Rights Act is not precluded by a prior decision of the education and state employees grievance board arising from the same facts and circumstances.
Mark A. Miller v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 21984 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 210, 455 S.E.2d 769:
In a case involving calculation of the period of revocation for subsequent DUI-suspensions, the Court held that under W. Va. Code § 17C-5A-3(b)(2)(B), which provides that "at least one half" of a revocation period must elapse "from the date of the initial revocation during which time the revocation was actually in effect" before a license may be reissued, if a revocation is suspended and the driver retains the right to drive, the period of time the driver is permitted to drive shall not be credited toward the total amount of time that must elapse prior to reinstatement.
Leonard Sniffin v. Jane O. Cline, Commissioner, Department of Motor Vehicles, No. 22573 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 370, 456 S.E.2d 451:
Affirming a second-offense DUI revocation on the basis of a conviction in another jurisdiction, the Court held that a prior criminal adjudication in another state establishing driving under the influence satisfies the same function as an administrative hearing under W. Va. Code § 17C-5A-2.
Alfred O. McDonald, Jr. v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 21292 (W. Va. February 17, 1995) (Workman, J.): 193 W.Va. 189, 455 S.E.2d 558:
Rejecting constitutional arguments related to the effect of a DUI-suspension on a driver's employment, the Court held that the administrative procedures contained in W. Va. Code §§ 17C-5A-1 to -4, which permit the revocation of a driver's license for driving under the influence of alcohol, are not violative of the driver's due process and equal protection rights because a valid driver's license is necessary for the driver's employment.
Randy D. Abshire v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 22229 (W. Va. February 17, 1995) (Cleckley, J.): 193 W.Va. 180, 455 S.E.2d 549:
Reversing a DUI-suspension where the driver was denied a hearing because of an allegedly untimely request for a continuance of such hearing, the Court held that when a request for a continuance is made and, by no fault of the driver or the driver's attorney, the request is not received by the DMV at least five days prior to the hearing, in accordance with DMV rules, the driver may not be denied the opportunity to demonstrate "good cause" for continuing the hearing.
Raymond J. Keegan and Argent Research and Recovery, Ltd. v. Larrie Bailey, as he is the Treasurer of West Virginia, No. 21921 (W. Va. April 22, 1994) (McHugh, J.): 191 W.Va. 145, 443 S.E.2d 826:
Where private company sought access to records of stale checks issued by State of West Virginia, the Court held that unless records of state-dated warrants are presumed to be abandoned property as defined in W. Va. Code § 36-8-8b(a), such records of state-dated warrants are subject to disclosure pursuant to the Freedom of Information Act, W. Va. Code § 29B-1-1, et seq.
Francis O. Day Co., Inc. v. Director, Division of Environmental Protection of the West Virginia Department of Commerce, Labor and Environmental Resources, et al., Nos. 21916 and 21917 (W. Va. March 28, 1994) (Brotherton, C.J.): 191 W.Va. 134, 443 S.E.2d 602:
Overturning the reversal of an adminstrative agency decision not to issue a permit, the Court held that evidentiary findings by adminstrative tribunals should not be reversed unless "clearly wrong."
State ex rel. Chesapeake and Potomac Telephone Company of West Virginia v. Honorable John C. Ashworth, Judge of the Circuit Court of Raleigh County, and Beckley Hospital, Inc., No. 21930 (W. Va. December 16, 1993) (Neely, J.): 190 W.Va. 547, 438 S.E.2d 890:
Granting a writ of prohibition against a circuit court suit for a refund of telephone charges where a complaint was initially filed with the Public Service Commission, the Court held that althought one must ordinarily exhaust administrative remedies before the commencement of proceedings in circuit court, W. Va. Code § 24-4-7 confers concurrent jurisdiction on the Public Service Commission and circuit courts where a customer seeks a refund based upon the rules of the Public Service Commission, but once a complaint is filed with the Public Service Commission, an action in circuit court is foreclosed until the administrative remedies are exhausted.
Jackson L. Smith v. L.W. Bechtold, Commissioner of the West Virginia Department of Motor Vehicles, No. 21543 (W. Va. November 23, 1993) (Brotherton, J.): 190 W.Va. 315, 438 S.E.2d 347:
On a procedural issue raised in DMV's appeal of reversal of the suspension of a driver's license, the Court held that before any continuance may be granted in an appeal from the DMV, the circuit court must conduct an evidentiary hearing and make a finding that there is a substantial probability that the driver will prevail on the merits and that he will suffer irreparable harm if a continuance is not granted.
Cecil C. Varney v. Ken Hechler, Secretary of State of West Virginia, No. 21493 (W. Va. July 16, 1993) (Workman, C.J.): 189 W.Va. 655, 434 S.E.2d 15:
Rejecting complaint that one of an agency's lawyers served as hearing examiner and that no responsive pleading was filed by the agency upon the respondent's appeal of the agency's decision to circuit court, the Court held (1) W. Va. Code § 29A-5-1(d) permits an agency to designate any of its employees as a hearing examiner in contested cases and (2) W. Va. Code § 29A-5-4 only requires the filing of a responsive pleading in an administrative appeal when the circuit court orders such pleading to be filed.
State of West Virginia ex rel. West Virginia Board of Education, et al. v. Honorable Roger L. Perry, Judge of the Circuit Court of Logan County, et al., No. 21697 (W. Va. July 16, 1993) (Miller, J.): 189 W.Va. 662, 434 S.E.2d 22:
Where citizens sought to challenge school consolidation decision of state board through a writ of certiorari proceeding, the Court held (1) W. Va. Code § 29A-1-2(b) defines contested case as a proceeding that involves rights, duties, interests, or privileges of specific parties which are required by law to be decided after an administrative hearing; (2) W. Va. Code § 29A-1-2(b) does not create a substantive right to a hearing for parties; and (3) neither statutes relating to school closing or consolidation nor regulations of the state board of education mandate an administrative hearing prior to its decision to accept, reject, or modify a local board's plan to close or consolidate.
West Virginia Radiologic Technology Board of Examiners v. H. Darrel Darby, D.P.M., No. 21214 (W. Va. February 16, 1993) (Miller, J.): 189 W.Va. 52, 427 S.E.2d 486:
Rejecting a podiatrist's claim that licensing board lacked authority to seek injunction preventing him from using unlicensed radiologic technologists to take x-rays, the Court held that W. Va. § 30-23-3(b) prohibits any firm, association, or corporation from providing radiologic technology services by anyone other than a practitioner or licensee under W. Va. Code § 30-23-3(a).
State of West Virginia ex rel. Mario J. Palumbo, Attorney General v. Graley's Body Shop, Inc., an Ohio corporation, et al., No. 21301 (W. Va. December 14, 1992) (McHugh, C.J.): 188 W.Va. 501, 425 S.E.2D 177:
In an important decision involving the rights of those subject to administrative investigations, the Court held that whether a penalty is civil or criminal depends on (1) legislative intent and (2) whether the sanctions are so punitive as to constitute a criminal penalty. With respect to the second part of this inquiry, the Court held that the following factors should be considered: (1) whether the sanction involves an affirmative disability or restraint; (2) whether the sanction has historically been regarded as a punishment; (3) whether the sanction is imposed only where there is a finding of scienter; (4) whether the sanction will promote the traditional purposes of punishment, retribution and deterrence; (5) whether the regulated behavior already constitutes a crime; (6) whether reasons exist for its imposition independent of retribution and deterrence; and (7) whether it appears to be excessive in light of the justifications for its imposition. With respect to the specific sanctions involved, those available under the West Virginia Antitrust Act, W. Va. Code §§ 47-18-1, et seq., the Court held them to be civil in nature and, therefore, suspected violators were not required to be notified that they are targets of an investigation or that they may have counsel present at oral deposition.
Francis O. Day Co., Inc. v. West Virginia Reclamation Board of Review, No. 21261 (W. Va. December 11, 1992) (Neely, J.): 188 W.Va. 418, 424 S.E.2d 763:
Where statute required a vote by five members of a seven member administrative board of review in order to reverse agency decision, but only three of five qualified members voted to reverse, the Court held that the vote constituted an affirmance, holding that when an administrative agency or board is unable to act because it lacks a statutory quorum or is unable to muster enough votes to meet a statutory requirement of a minimum number of votes for a decision, the agency or board must enter an order allowing the litigants to proceed to the next higher, judicial or administrative, tribunal.
Ronald G. Parks v. Board of Review of the West Virginia Department of Employment Security; James G. Dillon, as Chairman thereof; G. Charles Hughes and Jane Doe, as Members thereof; and Charles T. Cunningham, Administrative Law Judge, No. 21418 (W. Va. December 11, 1992) (Miller, J.): 188 W.Va. 447, 425 S.E.2d 123:
Rejecting the Department of Employment Security's attempt to force claimants to submit to telephonic hearings of their claims, the Court held that where a party requests a hearing before an administrative law judge under W. Va. Code § 21A-7-8, such party may not be required, over objection, to submit to a telephonic hearing.
Joy Technologies, Inc. v. Liberty Mutual Insurance Company, et al., No. 20153 (W. Va. July 21, 1992) (Brotherton, J.) (as modified): 187 W.Va. 742, 421 S.E.2d 493:
Where insurance industry had represented to insurance commissioner that proposed policy language was to be given a particular interpretation, the Court noted that the insurance industry was estopped from affording a different interpretation, holding that corporations which seek to do business in West Virginia must act in a manner consistent with their studied, unambiguous, official, affirmative representations to the state, its subdivisions, or its regulatory bodies.
West Virginia Board of Medicine v. Honorable George Spillers, Judge of the Circuit Court of Brooke County and Weirton Medical Center, Inc., No. 21006 (W. Va. May 14, 1992) (Neely, J.): 187 W.Va. 257, 418 S.E.2d 571:
Rejecting a hospital's attempt to supplement the record on appeal of an administrative decision to the Circuit Court of Brooke County, the Court held that review of Board of Medicine decisions shall be limited to the record before the Board of Medicine unless the petitioner can show "substantial procedural irregularities" in the proceedings before the Board of Medicine. On an unrelated issue, the Court held that original jurisdiction against the Board of Medicine is appropriate only in the Circuit Court of Kanawha County.
Retha A. Osborne v. West Virginia Human Rights Commission and Advance/Gregg Security, No. 19838 (W. Va. February 7, 1991) (Neely, J.): 184 W.Va. 584, 402 S.E.2d 253:
Rejecting a complainant's attempt to advance a retaliatory discharge claim after her gender discrimination claim was dismissed by the Human Rights Commission, the Court reaffirmed its holding in Syl. pt. 2 of McJunkin Corp. v. Human Rights Comm'n, 179 W.Va. 417, 369 S.E.2d 720 (1988), that a discrimination complaint must be sufficient to advise the defendant of the matters charged, but remanded the case for further proceedings after the Human Rights Commission admitted that it had mishandled the complaint from its inception.
Vince P. Shumate v. West Virginia Department of Motor Vehicles, No. 19230 (W. Va. April 19, 1990) (McHugh, J.): 182 W.Va. 810, 392 S.E.2d 701:
Rejecting driver's attack on ten-year suspension for second-offense DUI under a statute strengthened after his first arrest for DUI, the Court held that because the intent of the statute is not punitive, but protection of the public, the ex post facto clauses of the federal and state constitutions do not apply to administrative proceedings for which the purpose is to suspend or revoke a license to operate a motor vehicle.
Terry Halstead and Theodore Morris v. George Dials, Commissioner, West Virginia Department of Energy, and Appalachian Mining, Inc., No. 19502 (W. Va. March 23, 1990) (Miller, J.): 182 W.Va. 695, 391 S.E.2d 385:
Where residents of an area near certain surface mining operations were granted intervention by the DOE in its administrative action against the mining company, but were not consulted prior to the DOE's entry into a consent decree with the operator, the Court held that because the original parties to an administrative proceeding may not waive the rights of intervenors by consent order or otherwise, the consent decree was invalid. The Court further held, however, that although intervenors may not concur in a proposed consent order, an administrative agency may approve such order if it is determined to be reasonable and in accordance with statutory dictates and public policy considerations.
Walter C. Blower v. West Virginia Educational Broadcasting Authority, No. 19154 (W. Va. January 26, 1990) (Miller, J.): 182 W.Va. 528, 389 S.E.2d 739:
In a certified question proceeding finding that the Educational Broadcasting Authority is a state agency entitled to the special venue provisions of W. Va. Code § 14-2-2, the Court set forth five factors for determining whether a particular entity constitutes a state agency: (1) whether the entity's powers are substantially created by the legislature; (2) whether the composition of the entity's governing board is prescribed by the legislature; (3) whether the entity is empowered to operate on a statewide basis; (4) the extent to which the entity is financially dependent upon public funds; and, (5) whether the entity is required to deposit its funds in the state treasury.
Stowers and Sons Trucking Company, Inc. v. Public Service Commission and Eugene Roberts & Son, Inc., No. 19014 (W. Va. December 20, 1989) (Miller, J.): 182 W.Va. 374, 387 S.E.2d 841:
In a competitor's appeal of an award of an amended certificate to permit a common carrier to transport tanks and pipe used in southern West Virginia drilling operations, the Court reversed, holding that the Public Service Commission violated its mandatory duty under W. Va. Code § 24A-2-5 to consider evidence of whether "the service furnished by existing transportation facilities is reasonably efficient and adequate," which would compel denial of a competing certificate. In so holding, the Court expressly rejected, as in direct conflict with clear statutory language to the contrary, the PSC's adoption of the "regulated competition" doctrine, which provides that even whether there is no showing that existing service is inadequate, certification is appropriate if it serves the public interest.
The Consumer Advocate Division of the Public Service Commission of West Virginia, on Behalf of the Residential and Small Commercial Customers of Hope Gas, Inc. v. The Public Service Commission of West Virginia and Hope Gas, Inc., No. 19080 (W. Va. November 3, 1989) (McHugh, J.): 182 W.Va. 152, 386 S.E.2d 650:
Where PSC "interpreted" administrative rule in order to include "transported gas" in the calculation of "unaccounted for gas" [UFG] that triggered, at a certain level, an obligation on the part of the utility to absorb, rather than pass on to customers, the cost of this UFG, the Court held that an agency may not modify, revise, amend, or rewrite an administrative rule under the guise of "interpretation." Where administrative rule permits waiver in cases of "undue hardship," the Court held that it will remand for further proceedings when such rule is waived for "hardship" only. Finally, the Court reaffirmed its rulings that administrative orders must contain specific findings of facts, rather than conclusory statements, in order to withstand judicial scrutiny, especially in cases involving complex economic or scientific data.
State of West Virginia ex rel. Howard Tuck v. Thomas W. Cole, Chancellor of the West Virginia Board of Regents; The West Virginia Board of Regents; James W. Rowley, President of West Virginia College of Graduate Studies; and William Crockett, No. 18200 (W. Va. October 19, 1989) (Neely, J.): 182 W.Va. 178, 386 S.E.2d 835:
Where college administrator sought appointment as a tenured professor, the Court held that because no property right existed in continued employment beyond his current contract, which included nontenure-track professorial duties, the college's refusal to rehire or to grant a hearing to such administrator did not constitute a due process violation.