Men & Women Against Discrimination v. Family Prot. Servs. Bd.

• Citation: 229 W.Va. 55,725 S.E.2d 756
• Decision Date: 26 May 2011
• Docket Number: No. 35558.,35558.
• Court: Supreme Court of West Virginia
• Parties: MEN & WOMEN AGAINST DISCRIMINATION, A West Virginia Corporation, Plaintiff Below, Appellee v. The FAMILY PROTECTION SERVICES BOARD, Judi Ball, Barbara Hawkins, Kathie King, Judy King Smith, and Lora Maynard, Defendants Below, Appellants.

229 W.Va. 55

725 S.E.2d 756

MEN & WOMEN AGAINST DISCRIMINATION, A West Virginia Corporation, Plaintiff Below, Appellee

v.The FAMILY PROTECTION SERVICES BOARD, Judi Ball, Barbara Hawkins, Kathie King, Judy King Smith, and Lora Maynard, Defendants Below, Appellants.

No. 35558.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 8, 2011.

Decided May 26, 2011.

Syllabus by the Court

1. “A regulation that is proposed by an agency and approved by the Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act, W. Va.Code, 29A–1–2(d) [1982], and such a legislative rule has the force and effect of law.” Syl. Pt. 5, Smith v. W. Va. Human Rights Comm'n, 216 W.Va. 2, 602 S.E.2d 445 (2004).

2. “A circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. “Once a disputed regulation is legislatively approved, it has the force of a statute itself. Being an act of the West Virginia Legislature, it is entitled to more than mere deference; it is entitled to controlling weight. As authorized by legislation, a legislative rule should be ignored only if the agency has exceeded its constitutional or statutory authority or is arbitrary or capricious.” Syl. Pt. 2, W. Va. Health Care Cost Review Auth. v. Boone Mem'l Hosp., 196 W.Va. 326, 472 S.E.2d 411 (1996).

4. “Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking.” Syl. Pt. 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

5. “ ‘Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an ‘injury-in-fact’—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.' Syl. pt. 5, Findley v. State Farm Mutual Automobile Insurance Company, 213 W.Va. 80, 576 S.E.2d 807 (2002).” Syl. Pt. 2, Doering v. City of Ronceverte, 228 W.Va. 147, 718 S.E.2d 497 (2011).

Darryl V. McGraw, Jr., Esq., Attorney General, State of West Virginia, Charleston, WV, and Robert M. Bastress, Jr., Esq., Special Assistant Attorney General, Morgantown, WV, for Appellants.

Harvey D. Peyton, Esq., Peyton Law Firm, PLLC, Nitro, WV, for Appellee.

William D. Turner, Esq., Pyles & Turner, LLP, Lewisburg, WV, for Amicus Curiae West Virginia Coalition Against Domestic Violence, Inc., National Network to End Domestic Violence, Domestic Violence Legal Empowerment and Appeals Project, and Battered Women's Justice Project.

Helen Gerostathos Guyton, Esq., Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Washington, DC, for Amici Curiae National Network to End Domestic Violence, Domestic Violence Legal Empowerment and Appeals Project, and Battered Women's Justice Project.

PER CURIAM:

The appellants herein and defendants below, the Family Protection Services Board (“the Board”), Judy King Smith, Chairperson of the Board, Judi Ball, Secretary/Treasurer of the Board, and Kathie King, Lora Maynard and Barbara Hawkins, all members of the Board (jointly “the Appellants”), appeal from the entry of summary judgment against them by the Circuit Court of Kanawha County, West Virginia. The Board is a public body created by the West Virginia Domestic Violence Act, West Virginia Code §§ 48–26–101 to –1101 (2009 & Supp.2010) (“WVDVA”). Among other things, the Board is charged with establishing and enforcing standards for the licensure of all domestic violence shelters and family protection programs in West Virginia, and funding such shelters and programs once they become licensed. W. Va.Code § 48–26–401. The Board is also charged with licensing programs to treat perpetrators of domestic violence. Id. at § 48–26–404.

Respondent herein and plaintiff below, Men and Women Against Discrimination (“MAWAD”), describes itself as

a non-profit charitable corporation organized to protect the rights of children under the age of eighteen years to access and relationship [sic] with both parents regardless of gender and to promote fairness and gender equality in the implementation of the purposes of the West Virginia Domestic Violence Act and the manner in which services are provided pursuant to that Act to the citizens of the State of West Virginia.

In June 2008, MAWAD filed a Complaint in the Circuit Court of Kanawha County alleging that the Appellants are implementing the WVDVA in a discriminatory manner and seeking to enjoin them from distributing funds to shelters and family protection programs until the alleged discriminatory practices have been addressed. On October 2, 2009, the circuit court entered summary judgment in favor of MAWAD, rendering “null and void” three legislative rules promulgated by the Board: C.S.R. §§ 191–2–1, 191–2–4.11 and 191–3–3 (2003). After fully reviewing this matter,¹ this Court reverses the circuit court's final order and remands for entry of an order dismissing the action for lack of standing.

I. FACTS AND PROCEDURAL HISTORY

MAWAD does not allege any actual instances of discrimination; rather, it challenges the Board's legislative rules as discriminatory on their face and, therefore, in conflict with the legislative intent underlying the WVDVA. Accordingly, a review of the WVDVA and the Board's legislative rules implementing that Act is necessary.

The Board, which is legislatively established by the WVDVA, consists of five members who are charged with facilitating “the formation and operation of shelters,” establishing a system of licensure for shelters and family protection programs, and evaluating shelters and programs annually. W. Va.Code § 48–26–401(3), (9), (11) & (13). A “shelter” is “a licensed domestic violence shelter created for the purpose of receiving, on a temporary basis, persons who are victims of domestic violence, abuse or rape as well as the children of such victims.” Id. at § 48–26–204. A “family protection program” is a “licensed domestic violence program offered by a locally controlled organization primarily for the purpose of providing services to victims of domestic violence or abuse and their children.” Id. at § 48–26–206.

The Board is further charged with distributing proceeds from a special revenue fund, known as the West Virginia Family Protection Fund, to licensed shelters and family protection programs. Id. at §§ 48–26–401(12) & –601. Shelters and family protection programs that apply for such funding must meet certain criteria. Among other things, shelters and family protection programs must be incorporated as non-profits, have boards of directors, receive at least 55% of their funding from sources other than the Board, and require their employees and volunteers to maintain confidentiality about the individuals they serve. Id. at § 48–26–601(b)(2)–(5). Importantly, a shelter or program may not be funded, or will lose funding, if it discriminates on the basis of “race, religion, age, sex, marital status, national origin or ancestry.” Id. at § 48–26–601(c) (emphasis added).

In addition to licensing and funding domestic violence shelters and family protection programs, the Board is also charged with regulating “programs of intervention for perpetrators of domestic violence” (“PIPs”). W. Va.Code § 48–26–404(a). Among other things, the Board must establish “criteria concerning a perpetrator's appropriateness for the program,” “systems for communication and evaluation among the referring court, the public and private agencies that provide programs for victims of domestic violence and the programs of intervention for perpetrators,” and “required qualifications concerning education, training and experience for providers of intervention programs.” Id. at § 48–26–404(b). Furthermore, as with domestic violence shelters, the Board is charged with issuing annual licenses to providers of PIPs. Id. at § 48–26–405.

To accomplish these goals, the WVDVA authorizes the Board to promulgate a series of legislative rules. Id. at § 48–26–403. “A regulation that is proposed by an agency and approved by the Legislature is a ‘legislative rule’ as defined by the State Administrative Procedures Act, W. Va.Code, 29A–1–2(d) [1982], and such a legislative rule has the force and effect of law.” Syl. Pt. 5, Smith v. W. Va. Human Rights Comm'n, 216 W.Va. 2, 602 S.E.2d 445 (2004). The rules promulgated by the Board, which have been approved by the Legislature, are found at West Virginia Code of State Rules (“C.S.R.”) §§ 191–1 to –5.

Pursuant to the Board's legislative rules, all family protection programs, domestic violence shelters and PIPs must be licensed by the Board in order to provide services to domestic violence victims or perpetrators in West Virginia. W. Va.C.S.R. § 191–1–5. The Board may seek an injunction against any organization attempting to provide such services without a license. Id. at § 191–1–5.1e. Moreover, the Board must conduct annual evaluations of all programs, shelters and PIPs, and it retains the authority to revoke licenses or otherwise suspend such organizations. Id. at §§ 191–1–5.3 & 5.6.

West Virginia Code of State Rules § 191–2–3 sets forth the requirements that family protection programs must meet in order to be licensed. Among other things, family protection programs must provide services including case management, advocacy, counseling and referral to other community resources. Id. at § 191–2–3.1.f. Furthermore, such programs must be governed by a board of directors and meet certain requirements with regard to their paid staff. Id. at § 191–2–3.2. Of...