769 S.E.2d 881 (W.Va. 2015), 14-1045, State ex rel. West Virginia Secondary Sch. Activities Comm'n v. Hummel

Docket Nº:14-1045
Citation:769 S.E.2d 881, 234 W.Va. 731
Opinion Judge:Ketchum, Justice
Party Name:STATE OF WEST VIRGINIA EX REL. THE WEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION; DAVID COTTRELL, President; MIKE ARBOGAST, Vice President; GARY RAY, Executive Director; RICK JONES, Member; DAN ERENRICH, Member; EDDIE CAMPBELL, Member; GREGORY PRUDICH, Member; CRAIG LEE LOY, Member; GREG WEBB, Member; ROBERT DUNLEVEY, Member; RONALD SPENCER,
Attorney:For Petitioners: William R. Wooton, Esq., Wooton & Wooton, Beckley, WV. For Respondents: James G. Bordas, Jr., Esq., Michelle Marinacci, Esq., Bordas & Bordas, PLLC., Wheeling, WV.
Judge Panel:JUSTICE KETCHUM delivered the Opinion of the Court. JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion and is joined therein by CHIEF JUSTICE WORKMAN. LOUGHRY, Justice, concurring, joined by Chief Justice Workman:
Case Date:February 26, 2015
Court:Supreme Court of West Virginia
 
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769 S.E.2d 881 (W.Va. 2015)

234 W.Va. 731

STATE OF WEST VIRGINIA EX REL. THE WEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION; DAVID COTTRELL, President; MIKE ARBOGAST, Vice President; GARY RAY, Executive Director; RICK JONES, Member; DAN ERENRICH, Member; EDDIE CAMPBELL, Member; GREGORY PRUDICH, Member; CRAIG LEE LOY, Member; GREG WEBB, Member; ROBERT DUNLEVEY, Member; RONALD SPENCER, Member, Petitioners

v.

THE HONORABLE DAVID W. HUMMEL, Judge of the Circuit Court of Marshall County; PAMELA F., Individually, and as Parent and Legal Guardian of D.W., a Minor, Respondents

No. 14-1045

Supreme Court of Appeals of West Virginia

February 26, 2015

Submitted February 4, 2015

WRIT DENIED.

SYLLABUS

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[234 W.Va. 732] BY THE COURT

1. " A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court." Syl. Pt. 2, in part, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)

2. " Decisions properly within the purview of the legislative grant of authority to the West Virginia Secondary Schools Activities Commission under West Virginia Code § 18-2-25 (2008), such as the application of WVSSAC Rules and the review of calls or rulings made by game officials, are not subject to judicial review." Syl. Pt. 3, State ex rel. W.Va. Secondary Sch. Activity Comm'n v. Webster, 228 W.Va. 75, 717 S.E.2d 859 (2011).

3. " As a general rule courts should not interfere with the internal affairs of school activities commissions or associations." Syl. Pt. 2, State ex rel. W.Va. Secondary Sch. Activities Comm'n v. Oakley, 152 W.Va. 533, 164 S.E.2d 775 (1968).

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4. " The judiciary is the final authority on issues of statutory construction, and we are obliged to reject administrative constructions that are contrary to the clear language [234 W.Va. 733] of a statute" Syl. Pt. 5, CNG Transmission Corp v. Craig, 211 W.Va. 170, 564 S.E.2d 167 (2002).

5. " Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).

6. " It is fundamental law that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the statute under which the agency functions. In exercising that power, however, an administrative agency may not issue a regulation which is inconsistent with, or which alters or limits its statutory authority." Syl. Pt. 3, Rowe v. W.Va. Dep't of Corr., 170 W.Va. 230, 292 S.E.2d 650 (1982).

7. " 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." See Syl. Pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).

For Petitioners: William R. Wooton, Esq., Wooton & Wooton, Beckley, WV.

For Respondents: James G. Bordas, Jr., Esq., Michelle Marinacci, Esq., Bordas & Bordas, PLLC., Wheeling, WV.

JUSTICE KETCHUM delivered the Opinion of the Court. JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion and is joined therein by CHIEF JUSTICE WORKMAN.

OPINION

Petition for Writ of Prohibition

Ketchum, Justice

Petitioner, the West Virginia Secondary School Activities Commission (SSAC), seeks a writ of prohibition to halt enforcement of an October 3, 2014, order of the Circuit Court of Marshall County. The circuit court enjoined the SSAC from enforcing its penalty against a high school student-athlete. The student-athlete was ejected from a football game, resulting in his automatic suspension from the next game.

By statute, the Legislature required the SSAC to provide a " proper review procedure." The circuit court found the SSAC violated this statutory requirement by adopting a regulation prohibiting review of ejections and refusing review of its penalty against the student-athlete. The SSAC argues that the circuit court erred because circuit courts have no review over its internal affairs and because the " non-review of ejections rule" is not unconstitutional. The student-athlete responds that the SSAC's regulations may be constitutional, but they also must comply with state statutes, which the non-review of ejections rule fails to do.

Upon review, we find that the SSAC's non-review of ejections rule violates the Legislature's requirement that the SSAC provide a proper review procedure. Because the circuit court's order was not in error, we deny the requested writ of prohibition.

I.

FACTUAL AND PROCEDURAL BACKGROUND

This dispute has its origin in a high school football game played on September 19, 2014. During the game, a referee flagged one of the student-athletes, D.W., for allegedly committing a flagrant personal foul.1 According to the referee's report to the SSAC, the student-athlete, while lying on his back on the ground, " drew back his right leg and delivered an upward kick striking the helmet/face mask of the Defender."

The referee ejected the student-athlete from the game. As required by the SSAC's rules, the referee completed a detailed report of the incident and submitted it to the SSAC within twenty-four hours. He also submitted the report to the student-athlete's principal. Because the SSAC does not allow participation in the game following an ejection, he was suspended from playing in the next game, scheduled for September 26th. The September 19th ejection and the suspension from the September 26th game operated as a single punishment.

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In the week leading up to the September 26th game, the student-athlete sought administrative review from the SSAC. He hoped to use video-evidence to show that the alleged [234 W.Va. 734] kick to the opposing player's face (or any other misconduct) did not occur. The student-athlete made multiple attempts that week to get the SSAC to review its punishment against him.

The SSAC is required by state statute to provide a proper review procedure.2 Nevertheless, it refused to review the student-athlete's administrative appeal. The SSAC instead invoked its non-review of ejections rule, which states: " The protest of a[n] . . . ejection will not be allowed. Accordingly, the Board of Directors is not authorized to order . . . ejections to be reconsidered." W.Va. C.S.R. § 127-3-15.3 [2014]. The SSAC did not review the video-evidence to determine whether the student-athlete's punishment was proper.

As a last resort, the student-athlete (by his mother, Pamela F.)3 sought a temporary restraining order and preliminary injunction from the Circuit Court of Marshall County, alleging the SSAC's non-review of ejections rule was not enforceable.4 The student-athlete argued before the circuit court that the SSAC's non-review of ejections rule violated the Legislature's requirement that the SSAC provide a proper review procedure. The SSAC responded that its non-review of ejections rule is enforceable because it is not unconstitutional. The SSAC did not address the student-athlete's statutory argument.

Before ruling on the matter, the judge stated, " I'm not making any ruling that anything is unconstitutional." The judge also said, " I am not reversing a referee. I'm not considering the call that the referee did." Likewise, the circuit court's order granting the preliminary injunction states: " [t]his Court is not, and has no intention of, examining the constitutionality of [the non-review of ejections rule]. . . . [t]his Court is not, and has no intention of, reviewing the ejection call made by the game official on September 19, 2014." The circuit court limited its analysis to whether the non-review of ejections rule complied with a statute that required the SSAC to provide a proper review procedure.

The circuit court found that the SSAC's non-review of ejections rule violates the Legislature's requirement that the SSAC provide a proper review procedure. It then granted an injunction against the SSAC's enforcement of its punishment. The SSAC then petitioned this Court for a writ of prohibition.

II.

STANDARD OF REVIEW

When considering a petition for a writ of prohibition, we have held:

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 [234 W.Va. 735]

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that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

Furthermore, " [a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court." Syl. Pt. 2, in part, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Rather, the circuit court's abuse of powers must...

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