Graf v. Frame

• Decision Date: 12 March 1986
• Docket Number: No. 16815,16815
• Citation: 177 W.Va. 282,352 S.E.2d 31
• Court: West Virginia Supreme Court
• Parties: , 36 Ed. Law Rep. 1259 David GRAF, et al. v. Clark B. FRAME, as Regent of the West Virginia Board of Regents; and the West Virginia Board of Regents, a Public Corporation.

Page 31

352 S.E.2d 31

177 W.Va. 282, 36 Ed. Law Rep. 1259

David GRAF, et al. v. Clark B. FRAME, as Regent of the West Virginia Board of Regents; and the West Virginia Board of Regents a Public Corporation.

No. 16815.

Supreme Court of Appeals of West Virginia.

March 12, 1986.

Dissenting Opinion June 3, 1986.

Concurring Opinion Dec. 5, 1986.

Syllabus by the Court

1. " 'A writ of mandamus will not issue unless three elements coexist--(1) a clear [legal] right in the petitioner to the relief sought; (2) a [clear] legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)." Syl., Oakley v. Gainer, --- W. Va. ---, 331 S.E.2d 846 (1985).

2. " 'A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty.' Syl. pt. 4, Glover v. Sims, 121 W. Va. 407, 3 S.E.2d 612 (1939)." Syl. pt. 3, Allen v. State Human Rights Commission, --- W. Va. ---, 324 S.E.2d 99 (1984).

3. " 'One who accepts a public office does so cum onere, that is, he assumes the burdens and [the] obligations of the office as well as its benefits, subjects himself to all constitutional and legislative provisions relating to the office, and undertakes to perform all [the] duties imposed on its occupant; and while he remains in such office he must perform all such duties.' " Nelson v. West Virginia Public Employees Insurance Board, --- W.Va. ---, ---, 300 S.E.2d 86, 90 (1982), quoting State ex rel. Preissler v. Dostert, 163 W. Va. 719, 730, 260 S.E.2d 279, 286 (1979).

4. W.Va. Const. art. III, § 2 imposes a duty upon a public officer who is an attorney to refrain from representing persons who allegedly have claims against the public agency of which he is a member or against those agencies or employees thereof subject to the supervision of the public agency of which he is a member.

5. "Ordinarily, in mandamus proceedings, costs [and reasonable attorney fees] will not be awarded against a public officer who is honestly and in good faith endeavoring to perform his duty as he conceives it to be." Nelson v. West Virginia Public Employees Insurance Board, --- W.Va. ---, ---, 300 S.E.2d 86, 91 (1982).

Larry Harless, Morgantown, for appellant.

Clark B. Frame, Morgantown, pro se.

Bruce Ray Walker, Asst. Atty. Gen., Charleston, for the W.Va. Bd. of Regents.

McHUGH, Justice:

In this mandamus proceeding the petitioners, current (and two former) physicians ^{1 1} faculty members at the West Virginia University Medical Center, request that this Court order the respondents to perform what the petitioners allege are the nondiscretionary duties of the respondents as public officers, specifically, (1) for respondent Frame, an attorney and a member of the respondent West Virginia Board of Regents, to refrain from acting as an attorney for persons with alleged claims against faculty members and employees of West Virginia University and of other institutions of higher learning in this State when such claims are based upon functions performed by such faculty members/employees in their course of employment with any such institution supervised by the respondent West Virginia Board of Regents and (2) for respondent West Virginia Board of Regents to prohibit respondent Frame and any other of the Board's members from representing litigants against the Board or institutions or employees thereof which it supervises. The petitioners also request that they be awarded costs and reasonable attorney fees associated with bringing (1) this mandamus proceeding and (2) an unsuccessful malicious prosecution case of Dr. Graf, one of the petitioners, against respondent Frame and his law firm associate.

Finding merit to the argument for mandamus relief with respect to respondent Frame, ² we grant a writ of mandamus as moulded.

I

Clark Frame, an attorney and a member of the West Virginia Board of Regents, in his capacity as an attorney brought a medical malpractice action for a Ms. Riggi against Drs. Blessing and Elyanderani, formerly physicians at the West Virginia University (WVU) Medical Center hospital, where the alleged medical malpractice occurred, and formerly faculty members at the WVU School of Medicine. This civil action is currently pending, with Frame and one of his law firm's associates as counsel of record for the plaintiff. Neither West Virginia University nor the West Virginia Board of Regents is named as a defendant.

In a second case, one of Frame's associates brought a medical malpractice action for a Mr. and Mrs. Roy against Drs. Graf and Davis. Dr. Graf was then, and is now, a physician at the WVU Medical Center hospital, where the alleged medical malpractice occurred, and a faculty member of the WVU School of Medicine. This civil action was later dismissed with prejudice by agreed order. Neither West Virginia University nor the West Virginia Board of Regents was named as a defendant.

On the same date that this case was dismissed, the Roys were dismissed by agreed order from a malicious prosecution case which had been brought by Dr. Graf against the Roys and Frame's associate. Clark Frame was thereafter added as a defendant to Dr. Graf's malicious prosecution case. The latter was tried and the jury's verdict was in favor of the defendants (the Frames). Dr. Graf incurred $5,750.00 in costs and attorney fees in his unsuccessful malicious prosecution action.

In this mandamus proceeding the petitioners assert that respondent Frame, by placing himself in the situations involving actual or apparent conflict of interests between personal gain and public duties, has violated and is violating W.Va. Const. art. III, §§ 2, 3, 10 and 17 ³; art. VI, § 45 ⁴; art. XII, § 12 ⁵; and DR-1-102(A)(5), DR-5-105(A), DR-8-101(A)(2) and DR-9-101(A), (B) and (C) of the Code of Professional Responsibility (1983). ⁶ We conclude that respondent Frame, unwittingly, has violated and is violating W.Va. Const. art. III, § 2. It is, therefore, not necessary to discuss the other state constitutional provisions or, with one exception (DR 9-101), the disciplinary rules listed above.

II

A.

At the outset this Court notes again the well settled law on the requirements for the granting of mandamus relief:

'A writ of mandamus will not issue unless three elements coexist--(1) a clear [legal] right in the petitioner to the relief sought; (2) a [clear] legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).

Syl., Oakley v. Gainer, --- W.Va. ---, 331 S.E.2d 846 (1985). See also syl. pt. 1, American Federation of State, County & Municipal Employees v. Civil Service Commission, 341 S.E.2d 693 (W. Va. 1985); syl., State ex rel. Ruddlesden v. Roberts, --- W.Va. ---, 332 S.E.2d 122 (1985); syl. pt. 1, West Virginia Citizens Action Group, Inc. v. Daley, --- W.Va. ---, 324 S.E.2d 713 (1984); syl. pt. 1, Jawa v. Board of Education, --- W.Va. ---, 324 S.E.2d 161 (1984); syl. pt. 1, Allen v. State Human Rights Commission, --- W.Va. ---, 324 S.E.2d 99 (1984) (and cases collected at 105 n. 3); syl. pt. 2, Wheeling Barber College v. Roush, --- W.Va. ---, 321 S.E.2d 694 (1984); syl. pt. 1, Woodruff v. Board of Trustees, --- W.Va. ---, 319 S.E.2d 372 (1984); syl. pt. 1, Reed v. Hansbarger, --- W.Va. ---, 314 S.E.2d 616 (1984) (and cases collected at 619-20).

It is also well established in this jurisdiction that " '[a] peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty.' Syl. pt. 4, Glover v. Sims, 121 W. Va. 407, 3 S.E.2d 612 (1939)." Syl. pt. 3, Allen v. State Human Rights Commission, --- W.Va. ---, 324 S.E.2d 99 (1984). See also syl. pt. 2, American Federation of State, County & Municipal Employees v. Civil Service Commission, 341 S.E.2d 693 (W.Va.1985); State ex rel. Taylor v. MacQueen, --- W.Va. ---, 322 S.E.2d 709 (1984); syl. pt. 2, Reed v. Hansbarger, --- W.Va. ---, 314 S.E.2d 616 (1984) (and cases collected at 620).

B.

The Constitution of West Virginia is the source of the nondiscretionary duty owed by respondent Frame. Indeed, W.Va.Const. art. III, § 20 urges the people to preserve free government and the blessings of liberty by, inter alia, "a frequent recurrence to fundamental principles."

One of these "fundamental principles" is declared in W.Va. Const. art. III, § 2, quoted at n. 3, supra. This constitutional provision, part of this State's "Bill of Rights," is obviously derived from and tracks verbatim the language of Section 2 of the Virginia "Bill of Rights" composed by George Mason in the year 1776. See The Constitution Of Virginia: Report of the Commission on Constitutional Revision 87-88 (Michie Co. 1969). The respondents clearly are "magistrates" under this provision. In Mason County Board of Education v. State Supt. of Schools, 165 W.Va. 732, 274 S.E.2d 435 (1980), this Court stated that W.Va. Const. art. III, § 2 applied to "all officers and employees of the body politic in this State." 165 W.Va. at 739, 274 S.E.2d at 439. See generally Ralston v. Town of Weston, 46 W.Va. 544, 548-49, 33 S.E. 326, 328 (1899) ("public servants" equated with "magistrates"). It is clear that respondent Frame in his capacity as a member of the respondent Board is a "public officer." There are several indicia of being a "public officer":

'Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated [as] an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a...