State ex rel. Bowen v. Flowers

• Decision Date: 09 November 1971
• Docket Number: No. 13122,13122
• Citation: 184 S.E.2d 611,155 W.Va. 389
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. David S. BOWEN, Individually and doing business as Bowen Pharmacy v. Edwin F. FLOWERS, Commissioner, Department of Welfare for the State of West Virginia.

Page 611

184 S.E.2d 611

155 W.Va. 389

STATE of West Virginia ex rel. David S. BOWEN, Individually and doing business as Bowen Pharmacy v. Edwin F. FLOWERS, Commissioner, Department of Welfare for the State of West Virginia.

No. 13122.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 29, 1971.

Decided Nov. 9, 1971.

Syllabus by the Court

1. The opportunity to be heard is a fundamental requirement of the due process clause of the federal and state constitutions. However, where there is an overriding public interest involved the hearing may be postponed for a reasonable period of time in order to allow an investigation to be conducted.

2. In a case where a temporary suspension prior to a hearing pending an investigation is justified, the length of the suspension in order to conduct the investigation depends on the needs and circumstances of the individual case.

3. Where a suspension is justified prior to a hearing, the refusal to hold a hearing after a reasonable time has elapsed in which to conduct a proper investigation constitutes Arbitrary or Capricious action on the part of the administrative officer involved.

4. 'Mandamus lies to control the action of an administrative officer in the exercise of his discretion when such action is arbitrary or capricious.' Syllabus, Beverly Grill, Inc. v. Crow, 133 W.Va. 214. (57 S.E.2d 244)

5. 'Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to judicial branches of the government. Point 2, syllabus, State ex rel. Ellis v. Kelly, 145 W.Va. 70. (112 S.E.2d 641)

Leo Catsonis, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., James. G. Anderson, III, Phillip D. Gaujot, Asst. Attys. Gen., Charleston, for respondent.

BERRY, Judge:

This mandamus proceeding was instituted under the original jurisdiction of this Court by the petitioner, David S. Bowen, doing business as Bowen Pharmacy in Madison, West Virginia, against Edwin S. Flowers, the Commissioner of the Department of Welfare for the State of West Virginia, to compel the respondent to hold a hearing so that the petitioner could defend himself against certain unspecified 'irregularities' which resulted in the petitioner's suspension on June 28, 1971, from further participation in the medical pharmaceutical programs administered by the Department of Welfare. A rule was issued by this Court on September 13, 1971, returnable September 28, 1971, directing the respondent to show cause why the writ should not be awarded as prayed for by the petitioner. The respondent filed an answer to the petition which was demurred to by the petitioner and the case was submitted for decision on arguments and briefs of the parties.

The petitioner is a registered and licensed pharmacist who commenced business on December 1, 1969, at Bowen Pharmacy in Madison, West Virginia. Prior to the opening of his own store, the petitioner had been employed at a drug store in Madison and had dealt with the Department of Welfare in the dispensing of drugs and medications to welfare recipients under various aid programs administered by the Department of Welfare. After commencing his own business, petitioner qualified as a participating vendor-pharmacy with the Department and began furnishing medical prescription service to recipients of the various welfare programs. The petitioner received periodic payments from the Welfare Department, the amount depending on the invoices that the department received from the petitioner.

On March 26, 1971, the respondent requested the Purchasing Practice Procedures Commission to investigate Bowen Pharmacy. On June 28, 1971, the respondent suspended petitioner from participation in the programs administered by the Welfare Department because of alleged irregularities in petitioner's procedures. At the time of the suspension, Bowen alleged that the Department owed him approximately $36,000 for unpaid invoices which he had submitted. The respondent replied that the Department had invoices and checks made to petitioner, which were being held, that amounted to approximately $29,000, but denied the Department owed petitioner this amount.

On July 9, 1971, petitioner asked the respondent, in writing, for a hearing so that he could defend himself against the 'charges'. Petitioner states that he never received a reply to this request. The respondent claims that petitioner was told that the audit and investigation were not complete and that the matter was still under investigation.

The petitioner alleges that his reputation and business have been damaged as a result of this suspension and he asks that a writ of mandamus be awarded requiring respondent to afford him notice and hearing on the suspension or to reinstate him and pay to him the amounts due and owing him for goods and services rendered.

The petitioner claims his rights to due process have been denied as a result of the respondent's refusal to give him a hearing. The respondent replies that he is not required to give a hearing in these circumstances, as the rules and regulations do not provide for such hearing. Furthermore, the respondent contends that summary suspension is proper when an overriding public interest is involved.

There is no question that the petitioner is entitled to a hearing and be given the opportunity to defend himself under the due process clause of the federal and state constitutions. Article XIV, Section 1, Federal Constitution and Article III, Section 10, State Constitution; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64; In Re Downs, 82 N.M. 319, 481 P.2d 107. The opportunity to be heard is a fundamental requirement of the due process clause. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. However, where there is an overriding public interest involved the hearing may be postponed for a reasonable period of time in order to allow an investigation to be conducted. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113.

The petitioner relies on the case of Goldberg v. Kelly, Supra, in which it was held that a welfare recipient was entitled to a hearing before his welfare benefits could be terminated. It should be noted, however, that the court further stated that in some instances government benefits may be administratively terminated without affording the recipient an evidentiary hearing before the suspension or termination of benefits.

The petitioner strongly relies on the case of State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 136 S.E.2d 783, and asserts that it is indistinguishable from the case at bar. In that case the petitioner's privileges as a staff member of a hospital were summarily suspended for a period of three months, at the expiration of which his application for reinstatement was denied without giving any reason or affording him a hearing, and it was held that mandamus would lie to compel the hospital to give the petitioner a hearing with respect to his application.

It has been repeatedly held that where a public interest is involved it outweighs an infringement of a private interest and a temporary suspension may be warranted for a reasonable period of time pending an investigation. R. A. Holman & Co. v. Securities and Exchange Commission, 112 U.S.App.D.C. 43, 299 F.2d 127, cert. denied 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088; Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570. It has also been held that the Fourteenth Amendment to the Federal Constitution does not impair the police power of the state. City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833.

It clearly appears from the authorities that if the respondent had reason to believe irregularities were taking place he would be justified in temporarily suspending the petitioner's participation in the medical pharmaceutical programs administered by the respondent without first affording him a hearing, because the public welfare is involved in the dispensing of drugs in this program. However, the suspension cannot be for an indefinite period of time. The investigation in such case must be promptly and properly conducted and the hearing must be held within a reasonable period of time after the suspension. Gonzalez v. Freeman, Supra. The length of temporary suspension depends upon the needs and circumstances of the individual case. See Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624, and Gonzalez v. Freeman, Supra.

The petitioner has no right to obtain a contract to dispense drugs for the state under the program involved. However, where this contract or privilege is granted, the state cannot act arbitrarily,...