895 S.E.2d 6
W. Va.2023Background
- Petitioner Aron Freeland, an incarcerated felon, filed a pro se petition for a writ of mandamus seeking an order requiring the DCR Commissioner to adopt a written policy implementing West Virginia Code § 15A-4-17(i) as amended by S.B. 713 (eff. Apr. 30, 2021).
- The 2021 amendment added subsection (i)(1) (extra good time at commissioner’s sole discretion for meritorious service/emergencies) and (i)(2) (up to 90 days good time per program for completing approved optional programs) and concluded: “The commissioner shall adopt a written policy to effectuate the purposes of this subsection.”
- The Commissioner argued the “shall adopt” duty applied only to (i)(2), not to (i)(1), and that (i)(1) vested sole discretion in the Commissioner; no written policy existed at the time of the circuit-court hearing.
- The Circuit Court denied mandamus; Freeland appealed. While the appeal was pending the Commissioner adopted Policy Directive No. 151.06 addressing (i)(2).
- The Supreme Court of Appeals reviewed the mandamus request de novo, held the statutory text plainly imposed a nondiscretionary duty to adopt a written policy covering the entire subsection (i) (both (1) and (2)), reversed the circuit court, granted mandamus to compel adoption of the written policy, found the (i)(2) claim moot to the extent already addressed by the new policy, remanded for issuance of the writ and for determination of costs (limited to expenses incurred after Apr. 30, 2021), and declined to set a fixed deadline for compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 15A-4-17(i) imposes a nondiscretionary duty to adopt a written policy | Freeland: the statute’s final sentence uses “shall” and “this subsection,” so Commissioner must adopt a written policy covering all of (i) | Commissioner: the duty to adopt a written policy applies only to (i)(2); (i)(1) is discretionary and thus not subject to a mandatory rulemaking duty | Held: “shall” imposes a nondiscretionary duty and “this subsection” refers to entire subsection (i), so Commissioner must adopt a written policy effectuating both (i)(1) and (i)(2) |
| Whether mandamus is an appropriate remedy to compel adoption of the policy | Freeland: mandamus is appropriate because the duty is statutory and nondiscretionary and no adequate remedy exists | Commissioner: mandamus cannot control discretionary decisions; alternatively, administrative grievance process is adequate | Held: mandamus may compel statutory nondiscretionary duties (policy adoption); petitioner showed clear right and corresponding duty; administrative remedies would be futile, so no adequate alternative remedy exists |
| Effect of Commissioner’s post-appeal adoption of a policy on relief sought | Freeland: seeks writ to compel implementation of written policy under amended statute | Commissioner: adoption of Policy Directive No. 151.06 moots relief as to (i)(2) | Held: claim to compel (i)(2) policy is moot to the extent the Commissioner already adopted a policy; mandamus still appropriate to compel a policy covering subsection (i) as a whole if not yet adopted |
| Whether petitioner may recover costs for pursuing mandamus | Freeland: incurred postage/copy costs and is entitled to costs because a public officer willfully failed to obey the law | Commissioner: acted in good faith, so costs unjustified | Held: costs are presumptively awardable where a public officer willfully fails to obey the law; remanded for determination of costs (limited to expenses after Apr. 30, 2021) |
Key Cases Cited
- Harrison County Commission v. Harrison County Assessor, 222 W. Va. 25, 658 S.E.2d 555 (W. Va. 2008) (de novo review applies to circuit court mandamus decisions)
- Appalachian Power Co. v. State Tax Department, 195 W. Va. 573, 466 S.E.2d 424 (W. Va. 1995) (statutory interpretation is a question of law reviewed de novo)
- State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va. 479, 153 S.E.2d 284 (W. Va. 1967) (mandamus enforces nondiscretionary duties)
- Board of Education of Fayetteville District v. Lawson, 113 W. Va. 60, 166 S.E. 696 (W. Va. 1932) (mandamus issues when petitioner has clear right, corresponding duty exists, and no adequate remedy)
- Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (W. Va. 1982) ("shall" ordinarily mandatory; costs awarded against public officers who willfully disobey law)
- Rogers v. Hechler, 176 W. Va. 713, 348 S.E.2d 299 (W. Va. 1986) (legislative mandate can create nondiscretionary duty to promulgate rules)
- Reynolds v. State Road Commission, 111 W. Va. 398, 162 S.E. 319 (W. Va. 1932) (mandamus does not control the exercise of discretion absent abuse)
- Monongalia Improvement Co. v. Morris, 106 W. Va. 243, 145 S.E. 387 (W. Va. 1928) (mandamus will not compel an act already performed; mootness)