State ex rel. Gooden v. Bonar

Decision Date05 October 1971
Docket NumberNo. 13103,13103
Citation183 S.E.2d 697,155 W.Va. 202
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Preston B. GOODEN v. Robert L. BONAR, Superintendent of the Department of Public Safety of theState of West virginia.

Syllabus by the Court

1. Due process of law may be afforded administratively as well as judicially and lawful administrative process is due process equally with lawful judicial process.

2. '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 the judicial branches of the governments.' Point 2, syllabus, State ex rel. Ellis v. Kelly, 145 W.Va. 70 (112 S.E.2d 641).

3. 'The general rule is that where an administrative remedy is provided by statute or by rules and regulations having the force and effect of law, relief must be sought from the administrative body, and such remedy must be exhausted before the courts will act.' Point 1, syllabus, Daurelle v. Traders Federal Savings and Loan Association of Parkersburg, 143 W.Va. 674 (104 S.E.2d 320).

4. He was seeks relief by mandamus must show a clear legal right to the remedy.

Maruka & Sansalone, Ross Maruka, Fairmont, Franklin D. Cleckley, Morgantown, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Thomas P. O'Brien, Jr., Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, Judge.

In this original mandamus proceeding, instituted in this Court June 28, 1971, the petitioner, Preston B. Gooden, seeks a writ to require the defendant, Robert L. Bonar, Superintendent of the Department of Public Safety of West Virginia, herein sometimes referred to as the Department of Public Safety or the department, to reinstate the petitioner to his position of a trooper in the Department of Public Safety and to order the payment of his salary and the restoration of other benefits to which he alleges he is entitled from the date of his dismissal by the defendant on April 24, 1971.

Upon the petition and its exhibits, this Court issued a rule returnable September 1, 1971. Upon the return day of the rule this proceeding was submitted for decision upon the petition and its exhibits, the answer of the defendant and its exhibits, and the written briefs and the oral arguments of the attorneys for the respective parties.

The material facts are not disputed and the question for determination is a question of law.

On and prior to April 24, 1971, the petitioner was a member in good standing of the Department of Public Safety with the rank of trooper and was assigned to the Morgantown, West Virginia detachment of Company A. On April 23, 1971, while off duty and in civilian clothes, the petitioner made a speech before a civic group in Morgantown in which he criticized the existence of political interference which he charged stifled the general activities within the department. On the following day, April 24, he was orally advised that he had been dismissed as a member of the department, and by Special Order 162 of that date, he was informed by the defendant that the petitioner had been discharged from the department for the good of the service pursuant to Chapter 15, Article 2, Section 19, Code, 1931, as amended, and the general orders of the department.

No notice of charges, pending dismissal, or opportunity to be heard was given the petitioner before his dismissal.

On May 4, 1971, he filed with the Board of Commissioners, herein sometimes referred to as the board, his petition for appeal from the dismissal order of the defendant, as provided by Chapter 15, Article 2, Sections 20 and 21, Code, 1931.

Following requests by attorneys for the petitioner, the acting superintendent of the department, during the absence of the defendant due to illness, by letter of June 30, 1971, addressed to two members of the Board of Commissioners, filed these five charges against the petitioner: (1) Prior to April 24, 1971 he made certain unsubstantiated charges against the Department of Public Safety, its members and its officers; (2) By his conduct he has lessened public confidence and trust in the department and adversely affected the morale of its members; (3) He is guilty of insubordination; (4) He has repeatedly violated general order No. 14 of the department; and (5) For causes necessary for the good of the service. A hearing of the appeal of the petitioner was set for May 25 but the hearing was cancelled by the board. By letter of July 3, the attorneys for the petitioner requested that the five charges be made more specific which the department refused to do by letter of July 7, 1971 which asserted that the charges were sufficient. Due to the illness of the defendant, a hearing set for July 14 was continued at the instance of the acting superintendent. On August 20, 1971, according to the briefs of counsel, the board notified the parties that a hearing would be held on September 15, 1971.

In support of his petition for a writ of mandamus the petitioner, in substance, asserts (1) that the defendant is without authority to discharge the petitionere as a member of the Department of Public Safety and (2) that the action of the defendant in discharging the petitioner without a prior hearing violates the due process of law provisions of the Fourteenth Amendment of the Constitution of the United States and of Article III, Section 10, of the Constitution of West Virginia, and is contrary to Section 19, Article 2, Chapter 15, Code, 1931, as amended.

On the contrary the defendant contends that the remedy provided by Sections 20 and 21, Article 2, Chapter 15, Code, 1931, fully satisfies the requirements of due process of law and that the writ sought by the petitioner should be denied.

Chapter 15, Article 2, Code, 1931, as amended, relates to the Department of Public Safety the members of which are commonly known as the State Police. Section 19 of the statute, to the extent here pertinent, provides that 'The superintendent may suspend or remove from the service any member of the department of public safety for any of the following causes, to-wit: Refusing to obey the orders of his superior officer, neglect of duty, drunkenness, immorality, inefficiency, abuse of his authority, interference with the lawful right of any person, participation in political primaries, conventions or elections, or any other cause that may in the opinion of the superintendent be necessary for the good of the service.'

Sections 20 and 21 of Article 2 of that chapter deal with the creation of a Board of Commissioners to hear originally and to review all cases of appeal from the findings of the superintendent on charges filed against any member of the department of public safety and all cases of the dismissal or suspension of any member of the department by the superintendent and specify the procedure to be followed in cases of dismissal or suspension of any member of the department.

Section 20 provides for the appointment by the Governor of two persons, residents of this State, as members of the Board of Commissioners. The section contains, among others, these provisions: 'The two persons so appointed shall constitute the board of commissioners whose duty it shall be to review all cases of appeal from the findings of the superintendent on charges filed against any such member of the department of public safety, and in all cases of dismissal or suspension of any member of the department of public safety by the superintendent as hereinbefore provided. * * *. When charges are filed against any member of the department of public safety before the board of commissioners, a copy of such charges shall be served upon the accused, who shall within a reasonable time, to be fixed by the board, be required to answer the same, and the board shall give notice in writing to the accused of the time and place when such charges will be heard and considered by it.'

Section 21 provides that 'In all cases before a trial shall be had the accused shall be served with a copy of the charges and given a reasonable opportunity to defend himself against such charges, and if on the hearing of such charges the members of the board shall be equally divided, then the accused shall be suspended until a further trial is had with a third member presiding as hereinafter provided for. If upon any trial two members of the board shall be of opinion that the accused is guilty of the charges preferred, then he shall be discharged from the service without further trial.' The section further provides that if at any trial the board should be equally divided it shall fix a day for a final hearing at which time the Governor shall act as the third member of the board and preside at the hearing, that 'if the board should again be equally divided in their finding, the governor shall cast the deciding vote on all hearings on charges preferred against any officer or member of the department of public safety.', and that upon such hearing 'It shall require the votes of at least two of the members of the board to suspend any member or charges preferred and the votes of three of the members of the board to dismis the accused.'

The foregoing provisions of Section 19 which have been in effect since 1919, expressly authorize the superintendent to suspend or remove from the service any member of the Department of Public Safety for any of the causes specified in the statute which include any cause that may in the opinion of the superintendent be necessary for the good of the service. It is evident that in authorizing the superintendent summarily to suspend or remove any member of the department for any of the enumerated causes without notice or a prior hearing, the Legislature believed that such authority was necessary for the effective administration of the department and undertook to safeguard the rights of the suspended or removed member by providing a subsequent hearing after notice...

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    ...the judicial branches of the governments." See also Syl. pt. 5, State ex rel. Bowen v. Flowers, supra; Syl. pt. 2, State ex rel. Gooden v. Bonar, 155 W.Va. 202, 183 S.E.2d 697 (1971); Syl. pt. 1, Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971). The interrelationship between procedural......
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