George F. Fordham, Esq. Kevin
V. Sansalone, Esq.
Clarksburg, West Virginia Sansalone & Sansalone
Attorney for the Appellant Fairmont, West Virginia
Attorney
for the Appellee
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE MCGRAW dissents.
2. “'Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.' Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” Syllabus point 3, Alden v. Harpers Ferry Police Civil Service Commission, 209 W. Va. 83, 543 S.E.2d 364 (2001).
3. “Entry of an order by a policemen's civil service commission takes place when entered in an order book of the policemen's civil service commission and dated by the recorder of the city.” Syllabus point 2, Echard v. City of Parkersburg, 187 W. Va. 350, 419 S.E.2d 14 (1992).
4. “'Where the Legislature has prescribed limitations on the right to appeal, such limitations are exclusive, and cannot be enlarged by the court.' State v. De Spain, 139 W. Va. 854, [857,] 81 S.E.2d 914, 916 (1954).” Syllabus point 1, West Virginia Department of Energy v. Hobet Mining & Construction Co., 178 W. Va. 262, 358 S.E.2d 823 (1987).
5. Mandamus cannot be utilized as a substitute for an appeal or writ of error.
6. When
an individual is adversely affected by a police civil service commission decision
rendered pursuant to W. Va. Code § 8-14-20(b) (1937) (Repl. Vol. 1996),
he/she may obtain relief from the adverse decision in one of two ways: (1) he/she
may request relief through a petition for appeal or, in the alternative, (2)
he/she may request relief by mandamus, where appropriate. After choosing one
of these courses of relief, he/she is constrained to follow that course to its
finality. Therefore, once a person decides to seek a petition for appeal, he/she
is precluded from seeking a writ of mandamus pursuant to W. Va. Code § 8-14-20(b),
with respect to the same employment decision that is the subject of his/her appeal.
Davis, Justice:
Arlie Ashby (hereinafter referred to as “Mr. Ashby”)
appeals an adverse decision by the Circuit Court of Marion County dismissing
his appeal of an order of the Police Civil Service Commission that affirmed his
discharge as a patrolman with the City of Fairmont Police Department (hereinafter
referred to as the “Police Department”). Mr. Ashby was terminated by
the Police Department, and the Fairmont Civil Service Commission upheld the discharge.
Mr. Ashby appealed the decision to the circuit court. During the pendency of
that appeal and in response to the City of Fairmont's (hereinafter referred to
as “the City”) motion to dismiss, Mr. Ashby requested that the appeal
be converted to a petition for a writ of mandamus if the court determined that
the petition for appeal was untimely filed. The circuit court granted the City's
motion to dismiss finding that the appeal was untimely filed. The circuit court
further denied Mr. Ashby's motion for a writ of mandamus. Upon a review of the
parties' arguments and the pertinent authorities, we affirm the decision of the
circuit court finding that the appeal was untimely, and we further find that
a writ of mandamus was statutorily precluded. (See
footnote 1)
Additionally, to resolve this case, we are required
to consider the application of the relevant statute. In this regard, we have
held that “'[w]here the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a statute, we
apply a de novo standard of review.' Syllabus point 1, Chrystal
R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” Syl.
pt. 3, Alden v. Harpers Ferry Police Civil Serv. Comm'n, 209 W. Va.
83, 543 S.E.2d 364 (2001). Mindful of these applicable standards, we now
consider the substantive issues herein raised.
(b) In the event the commission
sustains the action of the removing officer, the member has an immediate right
of appeal to the circuit court of the county wherein the city or the major portion
of the territory thereof is located. In the event that the commission reinstates
the member, the removing officer has an immediate right of appeal to the circuit
court. In the event either the removing officer or the member objects to the
amount of the attorney fees awarded to the member, the objecting party has an
immediate right of appeal to the circuit court. Any appeal must be taken within
ninety days from the date of entry by the commission of its final order.
Upon an appeal being taken and docketed with the clerk of the circuit court of
the county, the circuit court shall proceed to hear the appeal upon the original
record made before the commission and no additional proof may be permitted to
be introduced. The circuit court's decision is final, but the member or removing
officer, as the case may be, against whom the decision of the circuit court is
rendered has the right to petition the supreme court of appeals for a review
of the circuit court's decision as in other civil cases. The member or removing
officer also has the right, where appropriate, to seek, in lieu of an appeal,
a writ of mandamus. The member, if reinstated or exonerated by the circuit
court or by the supreme court of appeals, shall, if represented by legal counsel,
be awarded reasonable attorney fees as approved by the court and the fees shall
be paid by the governing body.
(Emphasis added).
The issues raised by the parties require us to
apply the statutory language of W. Va. Code § 8-14-20(b) regarding
appeals from a decision of the police civil service commission. “'The
primary object in construing a statute is to ascertain and give effect to
the intent of the Legislature.' Syllabus Point 1, Smith v. State Workmen's
Compensation Com'r, 159 W. Va. 108, 219 S.E.2d 361 (1975).” Syl.
pt. 2, Rose ex rel. Rose v. St. Paul Fire & Marine Ins. Co., 215
W. Va. 250, 599 S.E.2d 673 (2004). Moreover, when we address a statutory
provision, this Court is bound to apply, and not construe, the enactment's
plain language. We have previously held that “'[a] statutory provision
which is clear and unambiguous and plainly expresses the legislative intent
will not be interpreted by the courts but will be given full force and effect.'
Syllabus Point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d
488 (1951).” Syl. pt. 3, Rose ex rel. Rose v. St. Paul Fire & Marine
Ins. Co., 215 W. Va. 250, 599 S.E.2d 673.
Applying
the statutory law to the present case, the express language of W. Va. Code § 8-14-20(b) directs
that an officer wishing to appeal a final decision of the Police Civil
Service Commission must do so within ninety days of the date that decision
is entered by the Commission: “Any appeal must be taken within ninety
days from the date of entry by the commission of its final order.” (Emphasis
added). Typically, the word “must” is afforded a mandatory connotation. See McMicken
v. Province, 141 W. Va. 273, 284, 90 S.E.2d 348, 354 (1955) (construing “must” as
a “mandatory word”), overruled on other grounds by Bradley
v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Accord Alden
v. Harpers Ferry Police Civil Service Commission, 209 W. Va.
83, 87, 543 S.E.2d 364, 368 (2001). To ascertain whether Mr. Ashby fulfilled
this mandatory ninety-day requirement, we first consider when a final order
is “entered,” because entry of the final order signals the beginning
of the ninety-day period.
We have
previously explained that “[e]ntry of an order by a policemen's
civil service commission takes place when entered in an order book of the
policemen's civil service commission and dated by the recorder of the city.” Syl.
pt. 2, Echard v. City of Parkersburg, 187 W. Va. 350, 419 S.E.2d
14 (1992). Thus, pursuant to the plain language of W. Va. Code § 8-14-20(b)
and our prior holding, the appeal period commences at the time the order
is dated and entered in the Commission's books. See, e.g., Echard,
187 W. Va. 350, 419 S.E.2d 14 (holding that the ninety-day period
for appealing from the decision of the policemen's civil service commission
failed to commence where order of commission was not entered, but only endorsed for entry).
In this case, the Commission's decision was rendered
on May 13, 2002; thus, Mr. Ashby was required to file his petition for appeal
within ninety days of that date. To determine whether Mr. Ashby complied with
this requirement, we next consider the appropriate manner of determining the
appeal period.
West Virginia Code § 2-2-1(d) (1899) (Repl. Vol. 2002) instructs that the computation of time shall be accomplished in the following manner:
In computing any period of time
prescribed by any applicable provision of this code or any legislative rule or
other administrative rule or regulation promulgated pursuant to the provisions
of this code, the day of the act, event, default or omission from which the
applicable period begins to run is not included. The last day of the period
so computed is included, unless it is a Saturday, a Sunday, a legal holiday or
a designated day off in which event the prescribed period of time runs until
the end of the next day that is not a Saturday, Sunday, legal holiday or designated
day off.
(Emphasis added). Calculating the appeal period in this manner, the day of
the entry of the decision, May 13, 2002, is excluded. Therefore, the ninety-day
period begins to run on May 14, 2002, and the ninetieth day is Monday, August
12, 2002. Insofar as Mr. Ashby's petition for appeal was not filed with the
circuit clerk until August 14, 2002, it was untimely filed as being more
than ninety days after the entry of the Commission's decision.
“'Where the Legislature has prescribed
limitations on the right to appeal, such limitations are exclusive, and cannot
be enlarged by the court.' State v. De Spain, 139 W. Va. 854, [857,]
81 S.E.2d 914, 916 (1954).” Syl. pt. 1, West Virginia Dep't of Energy
v. Hobet Mining & Constr. Co., 178 W. Va. 262, 358 S.E.2d 823
(1987). The Legislature has set the appeal time frame of ninety days, and,
insofar as the statutory language is plain and mandatory, we must apply the
statute as written. Applying the clear and unambiguous language of the
statute, the petition for appeal to the circuit court was untimely filed because
it was filed more than ninety days after the Commission's decision was entered
in its order book. Therefore, we affirm the circuit court's ruling dismissing
Mr. Ashby's petition for appeal as untimely filed.
We agree with the City's contentions. Mr. Ashby could pursue either an appeal or a mandamus action to challenge the Commission's decision, but not both. West Virginia Code § 8-14-20(b) specifically directs that “[t]he member or removing officer also has the right, where appropriate, to seek, in lieu of an appeal, a writ of mandamus.” (Emphasis added). “'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syllabus point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).” Syl. pt. 2, State ex rel. Stanley v. Sine, 215 W. Va. 100, 594 S.E.2d 314 (2004). In other words,
“When a statute is clear
and unambiguous and the legislative intent is plain, the statute should not be
interpreted by the courts, and in such case it is the duty of the courts not
to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel
Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959).
Syl. pt. 2, Burrows v. Nationwide Mut. Ins. Co., ___ W. Va. ___,
600 S.E.2d 565 (2004).
The governing statutory language herein provides that a writ of mandamus may be sought in lieu of an appeal. “Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general and proper use.” Syl. pt. 4, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959). The plain meaning of the words “in lieu of” is “[i]nstead of or in place of; in exchange or return for[.]” Black's Law Dictionary 803 (8th ed. 2004). It is clear from the plain meaning of the statute that a writ of mandamus may be sought instead of, or in place of, a petition for appeal. Thus, the statutory language provides that the remedies of appeal and mandamus are mutually exclusive and that both may not be pursued simultaneously.
When recently faced with the issue of mutual exclusivity of remedies, we reached the identical result in our prior decision in Ewing v. Board of Education of the County of Summers, 202 W. Va. 228, 503 S.E.2d 541 (1998). In Ewing, we found that, although the educational employees' grievance procedure permits an aggrieved employee to seek relief by either an appeal or a writ of mandamus, the employee may not engage both methods simultaneously but rather must choose one and follow that method to its conclusion. Syllabus point 6 ofEwing holds:
When an individual is adversely
affected by an educational employment decision rendered pursuant to W. Va.
Code § 18A-4-7a (1993) (Repl. Vol. 1997), he/she may obtain relief from
the adverse decision in one of two ways. First, he/she may request relief by
mandamus as permitted by W. Va. Code § 18A-4-7a. In the alternative,
he/she may seek redress through the educational employees' grievance procedure
described in W. Va. Code §§ 18-29-1 to 18-29-11 (1992) (Repl.
Vol. 1994). Once an employee chooses one of these courses of relief, though,
he/she is constrained to follow that course to its finality.
202 W. Va. 228, 503 S.E.2d 541.
Moreover,
we have previously explained, and now expressly hold that “[m]andamus
[cannot] be utilized as a substitute for an appeal or writ of error.” State
ex rel. Cooper v. Garvin, 139 W. Va. 845, 849, 82 S.E.2d 612, 615
(1954). Accord Ray v. Ray, ___ W. Va. ___, ___ n.14,
602 S.E.2d 454, ___ n.14 (2004) (per curiam). Based
upon the forgoing discussion and the plain language of the statute, we additionally
hold that when an individual is adversely affected
by a police civil service commission decision rendered pursuant to W. Va.
Code § 8-14-20(b) (1937) (Repl. Vol. 1996), he/she may obtain relief
from the adverse decision in one of two ways: (1) he/she may request relief
through a petition for appeal or, in the alternative, (2) he/she may request
relief by mandamus, where appropriate. After choosing one of these courses
of relief, he/she is constrained to follow that course to its finality.
Therefore, once a person decides to seek a petition for appeal, he/she
is precluded from seeking a writ of mandamus pursuant to W. Va. Code § 8-14-20(b),
with respect to the same employment decision that is the subject of his/her
appeal.
When
the City filed a motion to dismiss before the circuit court based on the
untimeliness of Mr. Ashby's petition for appeal, Mr. Ashby requested that
if the court determined the appeal was untimely, that the petition for appeal
be considered as a petition for a writ of mandamus. The circuit court granted
the City's motion to dismiss and denied Mr. Ashby's request for mandamus
relief. (See
footnote 4) Because Mr. Ashby chose to pursue a petition
for appeal of the Commission's decision, he was precluded from seeking relief
in mandamus.
Accordingly, we affirm the circuit
court's denial of Mr. Ashby's request for mandamus relief.
to do so.