State ex rel. Paige v. Canady

• Decision Date: 17 July 1996
• Docket Number: No. 23273,23273
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. James H. PAIGE, III, Secretary/Tax Commissioner of the West Virginia Department of Tax and Revenue, Defendant Below, Petitioner, v. Honorable Herman G. CANADY, Jr., Judge of the Circuit Court of Kanawha County, James M. Sturgeon, Jr., and Carolyn S. Sturgeon, Plaintiffs Below, Respondents.

Page 154

475 S.E.2d 154

197 W.Va. 154

STATE of West Virginia ex rel. James H. PAIGE, III,

Secretary/Tax Commissioner of the West Virginia

Department of Tax and Revenue, Defendant Below, Petitioner, v. Honorable Herman G. CANADY, Jr., Judge of the Circuit Court

of Kanawha County, James M. Sturgeon, Jr., and

Carolyn S. Sturgeon, Plaintiffs Below,

Respondents.

No. 23273.

Supreme Court of Appeals of West Virginia.

Submitted March 5, 1996.

Decided July 17, 1996.

[197 W.Va. 155] Syllabus by the Court

1. " 'Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue.' Syl. pt. 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973)." Syllabus point 1, State ex rel. Williams v. Narick, 164 W.Va. 632, 264 S.E.2d 851 (1980).

2. "A writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders." Syllabus point 1, State Farm v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

3. Highly placed public officials are not subject to a deposition absent a showing that the testimony of the official is necessary to prevent injustice to the party requesting it.

4. When determining whether to allow the deposition of a highly placed public official, the trial court should weigh the necessity to depose or examine an executive official against, among other factors, (1) the substantiality of the case in which the deposition is requested; (2) the degree to which the witness has first-hand knowledge or direct involvement; (3) the probable length of the deposition and the effect on government business if the official must attend the deposition; and (4) whether less onerous discovery procedures provide the information sought.

5. The burden is upon the proponent of the deposition to show the necessity of taking an oral deposition of a highly-placed government official.

Barry L. Koerber, Assistant Attorney General, Charleston, for Petitioner.

Jay M. Potter, Thomas H. Vanderford, IV, James M. Sturgeon, Jr., Pauley, Curry, Sturgeon & Vanderford, Charleston, for Respondents James M. Sturgeon, Jr. and Carolyn S. Sturgeon.

ALBRIGHT, Justice:

James Paige, III, Secretary/Tax Commissioner of the West Virginia Department of Tax and Revenue, petitions this Court for a writ of prohibition to prevent the Circuit Court of Kanawha County from enforcing its order of December 12, 1995, which required that Commissioner Paige be deposed. Commissioner Paige asserts that, as a high-ranking government official, he is not subject to deposition absent exceptional circumstances, a clear showing of necessity, or proof that the relevant information is not available through other discovery procedures. We find that the circuit court abused its discretion in ordering that Commissioner Paige submit to the deposition, and we therefore grant the writ as moulded.

On December 20, 1994, James M. Sturgeon, Jr., and Carolyn S. Sturgeon, plaintiffs below and respondents, submitted a request under the West Virginia Freedom of Information Act ("FOIA"), W.Va. Code § 29B-1-3 (1993), ¹ requesting the production of certain documents pertaining to the application of Commissioner Paige explains that this case consists of identifying what documents actually exist and determining to what extent such documents are exempt from disclosure under the tax payer confidentiality statute contained in West Virginia Code § 11-10-5d (1995). The Commissioner submits that all of the documents discovered, except the administrative decisions and the taxpayer correspondence, have been released.

                [197 W.Va. 156] State tax laws from 1978 to the present. 2  The Sturgeons explain that they made their FOIA request based upon their belief that the Tax Division has historically disregarded its own precedents and has thereby prevented taxpayers from receiving predictable and equal treatment by the Tax Division.  The Sturgeons assert that this is a problem that will not be resolved unless and until private tax practitioners assemble a data base of such precedents.  The Sturgeons further assert that, for several years prior to their FOIA request, they tried to convince the Commissioner to comply with his statutory duty to disclose such information, which was created under W.Va. Code § 11-10-5d(k) (1995). 3
                

With regard to the administrative decisions, Commissioner Paige asserts that the Tax Commissioner was not required to release such decisions, or summaries thereof, prior to the adoption of W.Va. Code § 11-10-5d(k), which became effective on July 1, 1986. The Commissioner acknowledges, however, that W.Va. Code § 11-10-5d(k) created a mandatory duty to release such information, after having omitted any identifying characteristics or facts about the taxpayer.

With regard to taxpayer correspondence, Commissioner Paige asserts that there are two types, general correspondence and super credit certification letters. The Commissioner argues that, because the Legislature created a limited exception to the general principle of confidentiality of taxpayer information with regard to the super credit in W.Va. Code § 11-10-5s(b)(1)(1995), taxpayer information beyond that outlined in the exception must remain confidential. Therefore, Commissioner Paige contends, there is no basis for releasing general taxpayer correspondence, and the release of such information would subject him to criminal penalties under W.Va. Code § 11-10-5d.

Commissioner Paige denied the Sturgeons' FOIA request by letter dated April 4, 1995. Mr. Sturgeon represents that he engaged in a number of discussions with Tax Division personnel and Commissioner Paige personally in an attempt to obtain compliance with the FOIA request during the three-month interim between the submission of the request and Commissioner Paige's denial. Following Commissioner Paige's denial, the Sturgeons, on April 13, 1995, filed a petition for an injunction and for a declaratory judgment.

In the course of discovery, the Sturgeons deposed Dale W. Steager, General Counsel to Commissioner Paige, and eleven other Tax Department employees who had been designated as its representatives in response to a At a subsequent hearing, the court ordered that Commissioner Paige submit to the deposition. However, the court limited the deposition to questions regarding: (1) whether, on a previous occasion, Commissioner Paige promised, either in writing or to Mr. Sturgeon directly, to implement the advisory opinion act by publishing those things required by the act; (2) what steps Commissioner Paige had taken to implement the release of the things required by the act, when he took such steps, and what impediments, if any, prevented him from placing into motion the publication of those things; (3) whether Commissioner Paige was specifically instructed by his superior not to publish such things, subject to whether he would invoke an applicable privilege; and, (4) what measures Commissioner Paige could take to redact or to furnish the information without disclosing or violating confidentiality.

[197 W.Va. 157] Rule 30(b)(6) notice of deposition. The Sturgeons also expressed a desire to depose Commissioner Paige. Commissioner Paige originally scheduled a date for such deposition, ⁴ but later opposed the deposition. The Commissioner states that he informally suggested that the Sturgeons submit written interrogatories or that the parties stipulate facts. However, according to the Commissioner, the Sturgeons insisted upon conducting a deposition. Consequently, Commissioner Paige sought judicial resolution of the question of whether respondents could compel his deposition. The circuit court conducted a hearing, temporarily stayed the deposition, and took the matter under advisement.

In addition, the court prohibited the Sturgeons from inquiring into Commissioner Paige's mental processes, his deliberative processes, the existence of any memorandums concerning Commissioner Paige's mental processes or deliberative processes, communications to which Commissioner Paige can claim a privilege, and matters pertaining to documents already released by Commissioner Paige. The court then granted the Commissioner's motion for a stay of the order to permit the filing of this petition.

Respondents, the Sturgeons, submit that the subject matter for the deposition would include: (1) the actions Commissioner Paige has ordered the Tax Department to take to comply with the disclosure statutes, both retroactively and prospectively; (2) the time frames necessary for the Tax Commissioner to comply retroactively with the mandates of the FOIA and the tax disclosure provisions applicable to administrative decisions; (3) whether the Tax Commissioner has acted in good faith or in willful and intentional disobedience of a statutory duty; and (4) how quickly his department could comply with any judgment order entered by the circuit court to compel compliance with both the FOIA and the Tax Procedures Act mandating disclosure of administrative decisions.

After the filing of this petition, the Tax Commissioner began releasing the administrative decisions, which had been redacted or modified to preserve taxpayer confidentiality. Since the submission of this petition, petitioner has notified this Court, through various motions for leave to supplement the record, that respondents have received redacted copies of the administrative decisions that were issued between July 1, 1986 and June 30, 1995. The Commissioner also represented that some of the decisions issued and served after June 30, 1995, have been issued...