ARON FREELAND, Petitioner below, Petitioner, v. WILLIAM K. MARSHALL, COMMISSIONER, WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION, Respondent below, Respondent.
No. 22-0109
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
October 16, 2023
September 2023 Term
FILED October 16, 2023 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
The Honorable Kenneth D. Ballard, Judge
Civil Action No. 20-P-285
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: September 26, 2023
Filed: October 16, 2023
Edward L. Bullman, Esq.
Bullman and Bullman
Charleston, West Virginia
Counsel for the Petitioner
Patrick Morrisey, Esq.
Attorney General
Grant Newman, Esq.
Assistant Solicitor General
Charleston, West Virginia
Counsel for the Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
SYLLABUS OF THE COURT
- “A de novo standard of review applies to a circuit court‘s decision to grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison County Commission v. Harrison County Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008).
- “Interpreting a statute . . . presents a purely legal question subject to de novo review.” Syl. Pt. 1, in part, Appalachian Power Co. v. State Tax Department, 195 W. Va. 573, 466 S.E.2d 424 (1995).
- “Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.” Syl. Pt. 3, State ex rel. Greenbrier County. Airport Authority v. Hanna, 151 W. Va. 479, 153 S.E.2d 284 (1967).
- “Mandamus is a drastic remedy to be invoked only in extraordinary situations[.]” Syl. Pt. 2, in part, State ex rel. Sowards v. County Commission of Lincoln County, 196 W. Va. 739, 474 S.E.2d 919 (1996).
- “Mandamus will issue where the undisputed facts show that petitioner has clear legal right to the performance of the act demanded, and a corresponding duty rests upon respondent to perform that duty; and that there is no other adequate remedy open to petitioner.” Syl., Board of Education of Fayetteville Dist. v. Lawson, 113 W. Va. 60, 166 S.E. 696 (1932).
- “It is well established that the word ‘shall,’ in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.” Syl. Pt. 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).
- “It is settled that in mandamus proceedings where a public officer willfully fails to obey the law, costs will be awarded.” Syl. Pt. 3, Nelson v. West Virginia Public Employees Insurance Board, 171 W. Va. 445, 300 S.E.2d 86 (1982).
HUTCHISON, Justice:
The Petitioner, Aron Freeland, a convicted felon incarcerated in the West Virginia Division of Corrections and Rehabilitation (“DCR“) penal system, appeals a final order of the Circuit Court of Kanawha County entered on January 13, 2022, denying his
I. Facts and Procedural Background
The Petitioner filed a self-represented petition for a writ of mandamus against the Respondent on October 7, 2020. In this petition, the Petitioner claimed the Commissioner had a duty to “develop a policy directive and/or operational procedure that is in compliance with the [sic]
(i)(1) An eligible inmate may receive extra good time in the sole discretion of the commissioner for meritorious service or performing extra assigned duties during emergencies; and
(2) In addition to the good time granted under subsection (c) of this section and that authorized by subdivision (1) of this subsection, an eligible inmate serving a felony sentence may receive up to 90 days good time per program for successfully completing an approved, but not required, academic or vocational program, which is not part of the inmate‘s required individualized reentry programing plan. The commissioner shall adopt a written policy to effectuate the purposes of this subsection.
On August 6, 2021, the circuit court appointed the Petitioner counsel and on December 15, 2021, convened a hearing on the Petitioner‘s mandamus request. At the hearing, the Petitioner‘s counsel argued that the Legislature‘s use of the word “shall” in amended
The Commissioner, though, asserted the sentence “[t]he commissioner shall adopt a written policy to effectuate the purposes of this subsection” applied only to (i)(2) and not (i)(1) because the right to good time under (i)(1) rests in the Commissioner‘s “sole discretion.” The Commissioner also informed the circuit court that, while no written policy existed as to (i)(2), “the [Division of Corrections] is currently working on policy language for that subsection as required by the statute.”
By written order entered January 13, 2022, the circuit court denied the requested writ of mandamus finding, in pertinent part:
The clear language of both W. Va. Code § 15A-4-17(i) and also the amendments [to it in 2021 in S.B. 713] place the authority [to award good time] in the sole discretion of the commissioner with approval from the superintendents. Nothing in this section requires or contemplates a policy directive and/or operational procedure relating to extra good time. Therefore, the Petitioner fails to demonstrate “the existence of a clear legal right in the petition to the relief sought.” Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969). Further, the Petitioner has failed to establish “the existence of a legal duty on the part of respondent to do the thing which petitioner seeks to compel.” Id.
The Petitioner appealed the denial of the writ of mandamus to this Court.
II. Standard of Review
The case before us is an appeal of a denial for a writ of mandamus. This Court‘s review in such cases is plenary, as we have held, “[a] de novo standard of review applies to a circuit court‘s decision to grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cnty. Comm‘n v. Harrison Cnty. Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008). This case also requires us to address
III. Discussion
On an appeal of a final order from circuit court in a mandamus case, this Court‘s obligation is to determine ”de novo whether the legal prerequisites for mandamus relief are present.” State ex rel. Cooper v. Caperton, 196 W. Va. 208, 214, 470 S.E.2d 162, 168 (1996). Thus, we commence with examining those prerequisites.
“Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.” Syl. Pt. 3, State ex rel. Greenbrier Cnty. Airport Auth. v. Hanna, 151 W. Va. 479, 153 S.E.2d 284 (1967). Such a non-discretionary duty may arise because of a statutory obligation. See, e.g., Syl. Pt. 2, Hickman v. Epstein, 192 W. Va. 42, 450 S.E.2d 406 (1994) (“The function of a writ of mandamus is to enforce the performance of official duties arising from the discharge of some public function, or imposed by statute.“). Because “[m]andamus is a drastic remedy to be invoked only in extraordinary situations[,]” Syl. Pt. 2, in part, State ex rel. Sowards v. Cnty. Comm‘n of Lincoln Cnty., 196 W. Va. 739, 474 S.E.2d 919 (1996), “it should be invoked sparingly.” State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 303, 460 S.E.2d 436, 438 (1995). A party seeking a writ of mandamus shoulders a heavy burden. State ex rel. Richey v. Hill, 216 W. Va. 155, 160, 603 S.E.2d 177, 182 (2004). “To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy.” Syl. Pt. 2, Myers v. Barte, 167 W. Va. 194, 279 S.E.2d 406 (1981). If a petitioner fails to satisfy any of these factors, mandamus will not issue. See State ex rel. Burdette v. Zakaib, 224 W. Va. 325, 331, 685 S.E.2d 903, 909 (2009) (a failure to satisfy any of the three mandamus elements is fatal to the request for mandamus). Conversely, while the mandamus factors pose significant hurdles, they are not insurmountable; when a Petitioner satisfies all three elements, a writ of mandamus will issue. “Mandamus will issue where the undisputed facts show that petitioner has clear legal right to the performance of the act demanded, and a corresponding duty rests upon respondent to perform that duty; and that there is no other adequate remedy open to petitioner.” Syl., Bd. of Educ. of Fayetteville Dist. v. Lawson, 113 W. Va. 60, 166 S.E. 696 (1932). We turn now to determining whether the Petitioner has carried his burden as to the mandamus elements.
A. The Petitioner has a clear legal right, and the Commissioner has a corresponding legal duty.
The crux of this case involves the final sentence of
We find the text of
The parties, though, differ as to what constitutes “this subsection.” The Petitioner asserts that “this subsection” applies to all of
The Commissioner further argues mandamus relief is unavailable because the Legislature vested him with the “sole discretion” to award additional good time under
The Commissioner correctly identifies that mandamus ordinarily will not lie to control discretion. “Mandamus cannot be employed ordinarily to control official discretion.” Syl. Pt. 1, Reynolds v. State Rd. Comm‘n, 111 W. Va. 398, 162 S.E. 319, 319 (1932); see also Beverly Grill, Inc., v. Crow, 133 W. Va. 214, 219, 57 S.E.2d 244, 246 (1949) (“This Court has held, in numerous decisions, that mandamus will not lie to control an administrative or executive officer in the performance of a discretionary act, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive or misapprehension of law upon the part of such officer.“). The Petitioner, though, is not claiming that the Commissioner must award him good time under
The circuit court did not address whether the Petitioner had an adequate remedy at law that would bar mandamus relief. For the following reasons, we conclude that there are no other adequate remedies.
While “[g]enerally mandamus is not an appropriate remedy where another sufficient and specific remedy exists[,]” State ex rel. Lawhead v. Kanawha Cnty. Ct., 129 W. Va. 167, 169, 38 S.E.2d 897, 898 (1946), “if such other remedy is inadequate or is not equally as beneficial, convenient and effective, mandamus will lie.” State ex rel. Smoleski v. Cnty. Ct. of Hancock Cnty., 153 W. Va. 307, 312, 168 S.E.2d 521, 524 (1969). The Petitioner‘s brief asserts he “has no other adequate remedy at law. Petitioner has exhausted his administrative remedies by filing grievances and writing directly to the office of the commissioner.” The Commissioner‘s summary response does not respond to the Petitioner‘s claim that the Petitioner has no other adequate remedy besides mandamus. The Commissioner‘s failure to address this contention in his summary response legally constitutes his tacit agreement that the Petitioner has no other adequate remedy at law. See
A confession of error is not dispositive, though. We have held that a confession of error does not relieve this Court of its judicial duty to independently examine the error confessed to determine if the confession of error is meritorious. See, e.g., Syl. Pt. 1, Sorongon v. W. Va. Bd. of Physical Therapy, 232 W. Va. 263, 752 S.E.2d 294 (2013) (per curiam) (“In a case where the appellee confesses error and indicates that the judgment should be reversed, this Court, upon ascertaining that the errors confessed are supported by law and constitute cause for the reversal of the judgment . . . will reverse the judgment[.]” Syl. pt. 4, Petition of Hull, 159 W.Va. 363, 222 S.E.2d 813 (1976).“); see also 5 C.J.S. Appeal and Error § 1081 (2019) (“[T]he appellate court is not relieved of its duty to perform its judicial function by a party‘s filing of confession of error, as it is still obligated to independently examine the errors confessed in order to protect the public interest.“).
In the circuit court, the Commissioner asserted that the DCR grievance system provided an adequate remedy in lieu of mandamus. However, given the Commissioner‘s consistent position throughout this litigation (both in the circuit court and before this Court) that he was not obligated to adopt a written policy as to (i)(1), resort to the DCR grievance system would have proven futile. See, e.g., Athlone Indus., Inc. v. Consumer Prod. Safety Comm‘n, 707 F.2d 1485, 1489 (D.C. Cir. 1983) (resort to administrative remedies would have been futile as it was “highly unlikely that the [agency] would change its position if the case were remanded to it” as it had “defended [its] position before this and other courts.“). A futile administrative remedy is no remedy at all. See Rosewell v. LaSalle Nat. Bank, 450 U.S. 503, 537 (1981) (Stevens, J., dissenting) (“A futile state remedy is not significantly different from no remedy at all.“). Having independently reviewed whether the Petitioner has an adequate remedy other than mandamus to compel the Commissioner to adopt a written policy as directed by
The Petitioner has surmounted the high hurdles to prove entitlement to a writ of mandamus by establishing all three mandamus elements. The circuit court should have
C. The Petitioner is entitled to costs.
The Petitioner avers that he “was required to expend his own limited funds to obtain performance of the Respondent of a mandatory duty” and that “he is entitled to recover his expenses such as postage and copies.” We agree.
The Commissioner has not argued any extraordinary circumstances exist precluding an award of costs. As such, we also remand this case to the circuit court for further proceedings to determine the nature and amount of costs to which the Petitioner is entitled.9
III. Conclusion
For the foregoing reasons, we reverse the January 13, 2022, judgment of the Circuit Court of Kanawha County and remand this case for further proceedings consistent with this opinion.
Reversed and remanded with directions.