Harrison County v. Harrison County Assessor

• Decision Date: 25 January 2008
• Docket Number: No. 33381.,33381.
• Court: West Virginia Supreme Court
• Parties: HARRISON COUNTY COMMISSION, Roger Diaz, President, Petitioners Below, Appellants, v. HARRISON COUNTY ASSESSOR, Cheryl L. Romano, Assessor, Respondent Below, Appellee.

658 S.E.2d 555

222 W.Va. 25

HARRISON COUNTY COMMISSION, Roger Diaz, President, Petitioners Below, Appellants, v. HARRISON COUNTY ASSESSOR, Cheryl L. Romano, Assessor, Respondent Below, Appellee.

No. 33381.

Supreme Court of Appeals of West Virginia.

Submitted January 8, 2008.

Decided January 25, 2008.

Syllabus by the Court

1. A de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus.

2. "`"Mandamus lies to require the discharge by a public officer of a nondiscretionary duty." Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479[, 153 S.E.2d 284 (1967)].' Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969)." Syllabus point 1, State ex rel. Williams v. Department of Military Affairs, 212 W.Va. 407, 573 S.E.2d 1 (2002).

3. "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." Syllabus point 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981).

4. "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).

5. "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 Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

6. "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." Syllabus point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).

7. "[W]here two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each." Syllabus point 4, in part, State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958).

8. When a county assessor seeks to hire an employee to perform duties other than assessing and appraising duties, the assessor is required to first obtain the advice and consent of the county commission pursuant to W. Va.Code § 7-7-7 (2000) (Repl.Vol. 2006). However, when a county assessor seeks to hire an employee to perform assessing and appraising duties, which employee will be paid from the revolving valuation fund established in W. Va.Code § 11-1C-8 (1998) (Repl.Vol.2003), the assessor is not required to obtain the advice and consent of the county commission. Instead, the assessor must obtain approval from the Property Valuation Training and Procedures Commission, as required by W. Va.Code § 11-1C-8(a).

Michael J. Florio, Florio Law Offices, Clarksburg, Attorney for the Appellants.

Gregory H. Schillace, Schillace Law Office, Clarksburg, WV, Attorney for the Appellee.

John Kennedy Bailey, John Kennedy Bailey PLLC, Charleston, Attorney for Amicus Curiae, The West Virginia Assessors' Association.

DAVIS, Justice:

The Harrison County Commission herein appeals the denial of its petition for writ of mandamus filed in the Circuit Court of Harrison County, and the granting of the Harrison County Assessor's counter-petition for writ of mandamus. Resolution of this appeal requires this Court to consider W. Va.Code § 11-1C-8(a) (1998) (Repl.Vol.2003) in connection with W. Va.Code § 7-7-7 (2000) (Repl.Vol.2006) to determine whether a county assessor is required to obtain the advice and consent of the county commission prior to hiring employees to perform assessing and appraising duties when said employees will be paid from designated moneys contained in a "revolving valuation fund," which fund is created by W. Va.Code § 11-1C-8. Having considered the various briefs submitted in this matter, the relevant law, and the oral arguments presented, we find that the circuit court correctly concluded that an assessor's hiring of employees to perform assessing and appraising duties is governed by W. Va.Code § 11-1C-8(a), and that the advice and consent of the county commission is not required. Therefore, we affirm the circuit court's denial of the Harrison County Commission's motion for writ of mandamus, as well as that court's granting of the Harrison County Assessor's counter-petition for writ of mandamus.

I. FACTUAL AND PROCEDURAL HISTORY

The facts presented in this case were stipulated below and are not in dispute. In May 2005, Harrison County Assessor Cheryl L. Romano, respondent below and appellee (hereinafter "Assessor Romano"), moved one of her existing employees from a position for which compensation had been paid from general county funds into a position involving assessing and/or appraising duties for which compensation was paid from a fund designated as the assessor's "valuation fund."¹ Assessor Romano obtained approval of the employee's change of position from the Property Valuation Training and Procedures Commission (hereinafter "the Valuation Commission"),² as required by W. Va.Code § 11-1C-8(a), but she did not seek approval from the Harrison County Commission, petitioner below and appellant (hereinafter "the County Commission"). In response, the County Commission filed a petition for writ of mandamus in the Circuit Court of Harrison County³ seeking to require Assessor Romano to obtain the advice and consent of the County Commission, pursuant to W. Va.Code § 7-7-7,⁴ in connection with the employee's change of position. Assessor Romano filed a counter-petition for writ of mandamus seeking to compel the County Commission to cease its alleged interference with Assessor Romano's employ of persons hired pursuant to W. Va.Code § 11-1C-8(a). By order entered September 18, 2006, the circuit court denied the County Commission's petition, and granted Assessor Romano's counter-petition. The County Commission then filed this appeal.

II. STANDARD OF REVIEW

We are herein asked to review a circuit court's denial of a petition for writ of mandamus, and in connection therewith, the circuit court's grant of the respondent's counter-petition seeking a writ of mandamus. In Syllabus point 1 of Staten v. Dean, this Court held that "[t]he standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo." 195 W.Va. 57, 464 S.E.2d 576 (1995). Although the Staten Court addressed the standard of review only in the context of an order granting relief in mandamus, since that time we have repeatedly clarified that the standard is the same regardless of whether the trial court granted or denied the writ. See, e.g., State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996) ("[W]e settled any doubt as to the standard of review for appeals in mandamus actions in West Virginia. In Syllabus Point 1 of Staten, we stated: `The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo." Thus, we consider de novo whether the legal prerequisites for mandamus relief are present."). See also Stern v. Chemtall Inc., 217 W.Va. 329, 334, 617 S.E.2d 876, 881 (2005) ("We have stated that a de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." (citation omitted)); Arneault v. Arneault, 216 W.Va. 215, 217, 605 S.E.2d 590, 592 (2004) (same); Bolyard v. Board of Educ. of Grant County, 214 W.Va. 381, 383, 589 S.E.2d 523, 525 (2003) (same); City of Benwood v. Board of Educ., County of Marshall, 212 W.Va. 436, 439, 573 S.E.2d 347, 350 (2002) ("In reviewing a circuit court's decision to grant or deny a writ of mandamus, this Court applies a de novo standard of review." (citation omitted)); Rice v. Underwood, 205 W.Va. 274, 278, 517 S.E.2d 751, 755 (1998) ("When reviewing a circuit court's decision to deny or to grant the extraordinary remedy of mandamus, "`[t]he standard of appellate review of a circuit court's order ... is de novo.'"" (citation omitted)). Accordingly, we now expressly hold that a de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus.

Under this standard, "`we consider de novo whether the legal prerequisites for mandamus relief are present.'" McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996) (quoting State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996)). Therefore, for purposes of our review, we note that

"`[m]andamus lies to require the discharge by a public officer of a nondiscretionary duty.' Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479 [153 S.E.2d 284 (1967)]." Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).

Syl. pt. 1, State ex rel. Williams v. Department of Military Affairs, 212 W.Va. 407, 573 S.E.2d 1 (2002). Furthermore, "[t]o 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).

Finally, to the extent that this Court's resolution of the instant matter requires us to resolve questions of law, our review remains de novo. "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." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. DISCUSSION

The County Commission seeks our reversal of the circuit court's denial of its petition for writ of...