State ex rel. West Virginia Bd. of Educ. v. Perry, 21697

• Citation: 434 S.E.2d 22,189 W.Va. 662
• Decision Date: 16 July 1993
• Docket Number: No. 21697,21697
• Court: Supreme Court of West Virginia
• Parties: , 85 Ed. Law Rep. 540 STATE of West Virginia ex rel. WEST VIRGINIA BOARD OF EDUCATION; James J. Maccallum, President; Paul J. Morris, Vice-President; N. Blaine Groves, Secretary; Virgil C. Cook, Member; Audrey S. Horne, Member; Michael D. Greer, Member; Cleo P. Mathews, Member; Patricia Full Hamner, Member; Charles H. Wagoner, Member; and Dr. Henry Marockie, State Superintendent of Schools, Relators, v. Honorable Roger L. PERRY, Judge of the Circuit Court of Logan County; Paul Burgess, Larry R. Bartram, Debra A. Grimes, Jerry Aleshire, Debbie Pickett, Ella Smutko, Diann Lynn Kish, and Christa Dawn Bias, Respondents.

Page 22

434 S.E.2d 22

189 W.Va. 662, 85 Ed. Law Rep. 540

STATE of West Virginia ex rel. WEST VIRGINIA BOARD OF EDUCATION; James J. Maccallum, President; Paul J. Morris Vice-President; N. Blaine Groves, Secretary; Virgil C Cook, Member; Audrey S. Horne, Member; Michael D. Greer Member; Cleo P. Mathews, Member; Patricia Full Hamner Member; Charles H. Wagoner, Member; and Dr. Henry Marockie, State Superintendent of Schools, Relators, v. Honorable Roger L. PERRY, Judge of the Circuit Court of Logan County; Paul Burgess, Larry R. Bartram, Debra A. Grimes, Jerry Aleshire, Debbie Pickett, Ella Smutko, Diann Lynn Kish, and Christa Dawn Bias, Respondents.

No. 21697.

Supreme Court of Appeals of West Virginia.

Submitted June 1, 1993.

Decided July 16, 1993.

Syllabus by the Court

1. Our Administrative Procedures Act, W.Va.Code, 29A-1-2(b), defines a contested case before an agency as a proceeding that involves legal rights, duties, interests, or privileges of specific parties which are required by law or constitutional right to be determined after an agency hearing. Thus, an agency must either be required by some statutory provision or administrative rule to have hearings or the specific right affected by the agency must be constitutionally protected such that a hearing is required.

2. The provisions in W.Va.Code, 29A-5-1, et seq., outlining the procedure for hearing contested cases do not create substantive rights as such rights must exist either by statutory language creating an agency hearing, by the agency's rules and regulations, or by some constitutional command.

3. Neither the statutes relating to the closing or consolidation of schools nor the West Virginia Board of Education's regulations mandate that the West Virginia Board of Education hold an administrative hearing before determining whether to accept, modify, or reject a local board of education's plan to close or consolidate its schools. In the absence of such a right to a hearing, a contested case does not arise under the Administrative Procedures Act, W.Va.Code, 29A-1-1, et seq.

4. " 'Mandamus will lie to control a board of education in the exercise of its discretion upon a showing of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law.' Syl. pt. 4, Dillon v. Board of Education, 177 W.Va. 145, 351 S.E.2d 58 (1986)." Syllabus Point 1, Pell v. Board of Education of Monroe County, 188 W.Va. 718, 426 S.E.2d 510 (1992).

5. "Actions wherein a state agency or official is named, whether as principal party or third-party defendant, may be brought only in the Circuit Court of Kanawha County." Syllabus Point 2, Thomas v. Board of Education, County of McDowell, 167 W.Va. 911, 280 S.E.2d 816 (1981).

6. " 'Prohibition will lie to prohibit a judge from exceeding his legitimate powers.' Syllabus Point 2, State ex rel. Winter v. MacQueen, 161 W.Va. 30, 239 S.E.2d 660 (1977)." Syllabus Point 3, Smith v. Maynard, 186 W.Va. 421, 412 S.E.2d 822 (1991).

Darrell V. McGraw, Jr., Atty. Gen., Katherine A. Schultz, Deputy Atty. Gen., Brentz Thompson, Asst. Atty. Gen., Charleston, for relators.

Thomas E. Esposito, Esposito & Esposito, Logan, Mark Hobbs, Pros. Atty. for Logan County, Logan, for respondents.

MILLER, Justice:

We granted a rule to show cause in this original proceeding in prohibition at the request of the relators, the West Virginia Board of Education (WVBE) and its members, who claim that the respondent trial judge exceeded his jurisdiction in determining that the Circuit Court of Logan County had venue to hear the underlying suit. The relators assert that the WVBE is a state agency and that they are state officers and, thus, under W.Va.Code, 14-2-2 (1976), the only proper venue for the underlying action is the Circuit Court of Kanawha County. ¹ The relevant portion of W.Va.Code, 14-2-2(a)(1) (1976), states: "(a) The following proceedings shall be brought and prosecuted only in the circuit court of Kanawha county: (1) Any suit in which the governor, any other state officer, or a state agency is made a party defendant, except as garnishee or suggestee." (Emphasis added).

This prohibition suit had its genesis in a school consolidation and closure plan that was prepared by the Superintendent and Board of Education of Logan County. At that time, the WVBE had assumed control of the Logan County school system pursuant to W.Va.Code, 18-2E-5(g) (1990). ² After the local board held a public meeting on March 22, 1993, concerning the closure plan, the plan was forwarded to the WVBE. The WVBE, at a March 24, 1993 meeting, approved the closure of Sharples Junior-Senior High School for grades 9 through 12, but retained grades 7 and 8 at the school.

Subsequently, several citizens filed suit in the Circuit Court of Logan County seeking to set aside the decision of the WVBE closing Sharples School for grades 9 through 12. Intertwined in their suit is the argument that the WVBE had no authority to make this decision. This argument is primarily premised upon the contention that the decision by the WVBE to assume control of the Logan County school system under W.Va.Code, 18-2E-5(g), was improper or, at the least, did not extend to closing Sharples School.

After the filing of the citizens' suit in the Circuit Court of Logan County, the WVBE and its members moved to dismiss the suit, contending that the venue was improper. The circuit court refused to grant the motion to dismiss. The WVBE and its members then filed the instant petition for a writ of prohibition in this Court. Thus, we are concerned only with the procedural question of whether the Logan County Circuit Court has venue to hear the suit against the WVBE.

At the trial level, the circuit court, in its April 23, 1993 order, determined that "these pleadings constitute a petition of Writ of Certiorari, which petition prays for this Court to review the decision of the State Board of Education to intervene in the operation of the Logan County school system pursuant to Code, 18-2E-5." The foregoing theory propounded by the trial court is not pursued by the respondents in this prohibition suit. ³

During arguments before this Court, the respondents did not assert that the underlying suit was in the nature of a writ of certiorari. Instead, the respondents argue that the actions of the WVBE on March 24, 1993, ordering that the senior high school portion of Sharples School be closed for the 1993-1994 school year, may be administratively reviewed. The respondents contend that the underlying suit is a contested case under our Administrative Procedures Act (APA), W.Va.Code, 29A-5-1, et seq., and, therefore, that they have the right to an administrative review in the Circuit Court of Logan County. Specifically, the respondents rely on W.Va.Code, 29A-5-4(b) (1964), which permits judicial review of a contested case to "be instituted by filing a petition, at the election of the petitioner, in either the circuit court of Kanawha county, West Virginia, ... or in the circuit court of the county in which the petitioner or any one of the petitioners resides[.]" ⁴

We do not agree, however, with the respondents' premise that the underlying suit is a "contested case," as that term is defined by W.Va.Code, 29A-1-2(b) (1982), which states:

" 'Contested case' means a proceeding before an agency in which the legal rights, duties, interests or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing, but does not include cases in which an agency issues a license, permit or certificate after an examination to test the knowledge or ability of the applicant where the controversy concerns whether the examination was fair or whether the applicant passed the examination and does not include rule making[.]"

Our APA, W.Va.Code, 29A-1-2(b), defines a contested case before an agency as a proceeding that involves legal rights, duties, interests, or privileges of specific parties which are required by law or constitutional right to be determined after an agency hearing. Thus, an agency must either be required by some statutory provision or administrative rule to have hearings or the specific right affected by the agency must be constitutionally protected such that a hearing is required.

In other words, the provisions in W.Va.Code, 29A-5-1, et seq., outlining the procedure for hearing contested cases do not create substantive rights, as such rights must exist either by statutory language creating an agency hearing, by the agency's rules and regulations, ⁵ or by some constitutional command. These statutory and regulatory sources for finding the right to an administrative hearing are recognized in our traditional rule regarding exhaustion of administrative remedies, as set out in Syllabus Point 4 of Mounts v. Chafin, 186 W.Va. 156, 411 S.E.2d 481 (1991):

" ' " '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.' Syl.Pt. 1, Daurelle v. Traders Federal Savings & Loan Association, 143 W.Va. 674, 104 S.E.2d 320 (1958)." Syl.Pt. 1, Cowie v. Roberts, , 312 S.E.2d 35 (1984).' Syllabus Point 1, Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985)."

Our interpretation of the contested case language of our APA is consistent with that of the United States Supreme Court in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), which concluded that the federal APA did not confer substantive jurisdiction: "We thus conclude that the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action." 430 U.S. at 107, 97 S.Ct. at 985, 51 L.Ed.2d at 200-01.

In the context of a school closure case, the Maryland Court of Special Appeals in Elprin v. Howard County Board...