Hodge v. Ginsberg

• Decision Date: 27 January 1983
• Docket Number: No. 15776,15776
• Citation: 303 S.E.2d 245,172 W.Va. 17
• Court: West Virginia Supreme Court
• Parties: Tracy HODGE, et al., etc. v. Leon GINSBERG, Commr., W.Va. Dept. of Welfare.

Page 245

303 S.E.2d 245

172 W.Va. 17

Tracy HODGE, et al., etc. v. Leon GINSBERG, Commr., W.Va. Dept. of Welfare.

No. 15776.

Supreme Court of Appeals of West Virginia.

Jan. 27, 1983.

Dissenting Opinion Jan. 28, 1983.

Syllabus by the Court

1. "Inherent in the republican form of government established by our State Constitution is a concept of due process that insures that the people receive the benefit of legislative enactments." Syllabus Point 1, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981) .

2. The Department of Welfare is a creation of the Legislature, and has as its express purpose the provision of welfare assistance programs "to the end that residents of the State who are subject to the recurring misfortunes of life may continue to have such aid and encouragement as the county alone, the State alone or the State in cooperation with the federal government may provide." W.Va.Code § 9-1-1 (1979 Replacement Vol.).

3. "In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meanings." Syllabus Point 1, Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980).

4. The Social Services For Adults Act, W.Va.Code §§ 9-6-1 through 9-6-8 (Cum.Supp.1982), is clearly remedial legislation which should be construed to achieve its beneficial purposes.

5. While the interpretation of a statute by the agency charged with its administration should ordinarily be afforded deference, when that interpretation is unduly restrictive and in conflict with the legislative intent, the agency's interpretation is inapplicable.

6. The term "incapacitated adult" contained in W.Va.Code § 9-6-1 was intended by the Legislature to encompass indigent persons who, by reason of the recurring misfortunes of life, are unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health.

7. "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." Syllabus Point 1, Nelson v. Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).

8. The lack of shelter, food and medical care which poses a substantial and immediate risk of death or serious permanent injury to an incapacitated adult is a valid reason for intervention by the Department of Welfare through the provision of adult protective services.

Larry Harless, Charleston, for petitioners.

Chauncey H. Browning, Atty. Gen., Mary Beth Kershner and Joanna Bowls-Vickers, Asst. Attys. Gen., Charleston, for respondent.

McGRAW, Chief Justice:

This is an original proceeding in mandamus. The petitioners are six homeless residents of the City of Charleston. ¹ The respondent is Leon Ginsberg, Commissioner of the West Virginia Department of Welfare. The petitioners seek to compel the respondent to provide adult protective services to incapacitated individuals such as themselves and others similarly situated. We find that the petitioners are entitled to such relief, and grant the writ.

The individual petitioners are all persons within the state of West Virginia who lack the means to maintain a permanent residence, and who therefore are often forced to spend their days and nights on public streets, alleys, riverbanks, and other various outdoor locations. The petitioners claim that the Commissioner of the Department of Welfare has a statutory and constitutional duty to provide emergency shelter to enable them and similarly situated persons to adequately sustain life and reasonable health.

The petitioners' statutory claim is based upon the provisions of W.Va.Code §§ 9-6-1 through 9-6-8 (Cum.Supp.1982), the Social Services For Adults Act. The Act is designed to provide protective services to incapacitated adults. See generally W.Va.Code § 9-6-2. Specifically, W.Va.Code § 9-6-7 provides:

The department may develop a plan for a comprehensive system of adult protective services including social case work, medical and psychiatric services, home care, day care, counseling, research and others.

It shall offer such services as are available and appropriate in the circumstances to persons who, other than for compensation, have or intend to have the actual, physical custody and control of an incapacitated adult and to such incapacitated adults or to adults who may request and be entitled to such protective services ....

An "incapacitated adult" is defined by the Act as "any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health." W.Va.Code § 9-6-1(4). The Department of Welfare is authorized to institute proceedings to abate any abuse or neglect of an incapacitated adult or to abate an emergency situation. W.Va.Code § 9-6-4. An "emergency situation" is defined as "a situation or set of circumstances which presents a substantial and immediate risk of death or serious permanent injury to an incapacitated adult." W.Va.Code § 9-6-1(5). The petitioners claim that they are incapacitated adults who are entitled to protective services under the provisions of the Act.

We note initially that if the petitioners are members of the class which the Social Services For Adults Act is designed to benefit, they possess a constitutional right to the relief which they seek under Article III, Section 10 of the West Virginia Constitution. As we stated in Syllabus Point 1 of Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981): "Inherent in the republican form of government established by our State Constitution is a concept of due process that insures that the people receive the benefit of legislative enactments." Our inquiry therefore focuses on whether the petitioners are entitled to relief under the Act.

The respondent advances two principal arguments in opposition to the petitioners' claim for relief. First, the respondent contends that the petitioners are not "incapacitated adults" within the meaning of the Act. In this regard the respondent argues that the Act is in derogation of the common law, and therefore should be strictly construed against the petitioners. Second, the respondent contends that the provision of protective services under the Act is discretionary, precluding relief by mandamus. We find no merit in these contentions.

The Department of Welfare is a creation of the Legislature, and has as its express purpose the provision of welfare assistance programs "to the end that residents of the State who are subject to the recurring misfortunes of life may continue to have such aid and encouragement as the county alone, the State alone or the State in cooperation with the federal government may provide." W.Va.Code § 9-1-1 (1979 Replacement Vol.). The Department of Welfare has the responsibility of administering welfare assistance programs and possesses "all powers, not inconsistent with state law, as may be necessary for the disbursement and distribution of welfare assistance to those persons qualified therefor in as prompt, fair, orderly, efficient and economical manner as possible." W.Va.Code § 9-2-5 (1979 Replacement Vol.). The Commissioner of the Department of Welfare is the "chief executive officer and administrative head of the department," W.Va.Code § 9-2-2 (1979 Replacement Vol.), who is charged with the "powers, duties and responsibilities granted and assigned to that office ... by law ...." W.Va.Code § 9-2-6 (1979 Replacement Vol.). The Commissioner has specific authority and power to "[e]stablish and maintain such institutions as are necessary for the temporary care, maintenance, and training of children and other persons." W.Va.Code § 9-2-6(9).

One of the primary goals of the Department of Welfare is to provide aid to indigent persons. An "indigent person" is "any person who is domiciled in this State and who is actually in need as defined by department rules and regulations and has not sufficient income or other resources to provide for such need as determined by the department." W.Va.Code § 9-1-2(g) (1979 Replacement Vol.). Qualified indigent persons who apply for assistance "shall be granted state assistance in such form and amount, to such extent, and for such period, as authorized by applicable state laws, rules and regulations of the department and as determined by the department in accordance with such laws, rules and regulations and within limits of available funds." W.Va.Code § 9-3-2 (1979 Replacement Vol.); see also W.Va.Code § 9-3-1 (1979 Replacement Vol.).

On April 11, 1981, the Legislature amended chapter nine of the West Virginia Code by adding thereto a new article. See 1981 W.Va.Acts ch. 215. The amendment authorized the Department of Welfare to provide social services for adults; established a comprehensive protective service system; and provided for the promulgation of rules and regulations allowing for payment of services to incapacitated persons as defined in the amendment. Id. The amendment is now found at W.Va.Code §§ 9-6-1 through 9-6-8, and is titled "Social Services For Adults."

In accordance with the Legislature's directions, see W.Va.Code § 9-6-2, the Commissioner of the Department of Welfare promulgated regulations on August 14, 1981, implementing the Social Services For Adults Act. See W.Va.Dept. of Welfare, Social Services Manual, ch. 29 (1981). Regulation 29010 defines protective services as "casework, treatment and crisis intervention services provided to adults in hazardous situations who, due to physical and/or mental incapacities, are no longer able to care for their basic needs and who have no one else able or willing to do so." Regulation 29010 further states that the goal of adult protective services is to remedy "neglect, abuse, or exploitation." "Adult neglect" is defined as the failure to provide adequate food, ... shelter or medical care...