W. VA. DEPT. OF MILITARY AFFAIRS v. Berger

Citation508 S.E.2d 628,203 W.Va. 468
Decision Date02 October 1998
Docket NumberNo. 25140.,25140.
CourtSupreme Court of West Virginia
PartiesWEST VIRGINIA DEPARTMENT OF MILITARY AFFAIRS AND PUBLIC SAFETY, DIVISION OF JUVENILE SERVICES, and Phyllis H. Carter, Director, Division of Juvenile Services, Petitioners, v. The Honorable Irene BERGER, Judge of the Circuit Court of Kanawha County, Respondent.
Dissenting Opinion of Justice Starcher November 9, 1998.

Darrell V. McGraw, Jr., Attorney General, Diana P. Fisher, Assistant Attorney General, Charleston, West Virginia, Attorneys for the Petitioners.

Jon R. Blevins, Assistant Prosecuting Attorney, Charleston, West Virginia, Attorney for the Respondent. DAVIS, Chief Justice:

In this original proceeding for a writ of prohibition, the petitioner, West Virginia Department of Military Affairs and Public Safety, Division of Juvenile Services [hereinafter "the Division"], requests this Court to prohibit the respondent, the Honorable Irene Berger, Judge of the Circuit Court of Kanawha County, from requiring the Division to transport juveniles to and from court appearances during such juveniles' detention prior to adjudication of delinquency. We have thoroughly considered this petition. We conclude that the writ should be denied.

I. FACTUAL AND PROCEDURAL HISTORY

The facts giving rise to this petition for a writ of prohibition involve two juveniles. One juvenile was the subject of a detention order placing him/her at the West Central Juvenile Detention Center in Parkersburg, West Virginia [hereinafter "West Central"], pending disposition of a delinquency petition.1 The detention order directing the juvenile's placement at West Central reveals that the Kanawha County Sheriff's Department was charged with initially transporting the juvenile to West Central.

The second juvenile was the subject of a detention and bond order placing him/her at the Southern Regional Juvenile Detention Center in Princeton, West Virginia [hereinafter "Southern"], pending further court proceedings. In addition to placing the juvenile at Southern, the detention and bond order directed the Sheriff of Kanawha County to convey the juvenile to Southern.

On May 6, 1998, the Honorable Judge Irene Berger issued an order in each of the two above-described juvenile cases. Each order required the Division to transport one of the two juveniles from his/her respective detention center to the Kanawha County Circuit Court, located in Charleston, West Virginia, for court proceedings to be held on May 8, 1998. Following the court proceedings, the Division was to return the juvenile to his/her respective detention center, if such return was deemed appropriate by the court. Judge Berger's orders represented the first occasion on which the Division had been directed to transport, to and from court, juveniles who were being detained pending resolution of delinquency petitions filed against them.2 The Division apparently complied with the orders of May 6, 1998, and filed this petition for writ of prohibition on May 7, 1998.

Following the Division's compliance with Judge Berger's orders of May 6, the proceeding scheduled with regard to the juvenile being detained at Southern was continued from May 6 to May 11, 1998. Consequently, on May 8, 1998, Judge Berger issued an order requiring the Division to again transport the juvenile from Southern, in Princeton, to Charleston for the May 11 proceedings. The Division received a copy of the order, by fax, at approximately 4:00 p.m., on Friday, May 8. Although the Division complied with the order,3 it also filed a "MOTION FOR STAY OF PROCEEDINGS" in the circuit court on the morning of May 11, 1998. The Division's counsel argued the motion in court, but it was denied because the juvenile was present and the charges against him/her were withdrawn by the prosecutor.

Immediately following the above-described proceedings of May 11, the same juvenile had a detention hearing in the Kanawha County Circuit Court regarding another matter. The detention hearing resulted in the juvenile being ordered back to Southern, and further resulted in the Division being ordered to again transport the juvenile to Charleston for a preliminary hearing on May 14, 1998. Counsel for the Division orally objected to the portion of the order requiring the Division to provide transportation for the juvenile. Counsel also moved for a stay of the proceedings, which motion was denied. Subsequently, the Division filed in the circuit court a written motion for stay of the proceedings. On May 13, 1998, the Division filed in this Court an amended statement of facts and exhibits to support its earlier filed petition for writ of prohibition. At the time the amended statement of facts was filed, the aforementioned written motion for stay of proceedings had not yet been ruled upon by the lower court. We granted a rule to show cause, and now deny the writ of prohibition.

II. DISCUSSION
A. Writ of Prohibition

We have repeatedly expressed the limits to our exercise of original jurisdiction in prohibition by declaring that "[m]andamus, prohibition and injunction against judges are drastic and extraordinary remedies.... As extraordinary remedies, they are reserved for really extraordinary causes." State ex rel. Lawson v. Wilkes, 202 W.Va. 34, 38, 501 S.E.2d 470, 474 (1998) (quoting State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996)

). See also State ex rel. United States Fidelity & Guar. Co. v. Canady, 194 W.Va. 431, 436, 460 S.E.2d 677, 682 (1995); State ex rel. Doe v. Troisi, 194 W.Va. 28, 31, 459 S.E.2d 139, 142 (1995). Indeed, it is well established that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

The Division argues that prohibition is appropriate in this instance as the circuit court exceeded its legitimate powers. Addressing the application of a writ of prohibition where a court has exceeded its legitimate powers, we have held:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With due consideration for these standards, we proceed to consider the particular issue raised by the Division.

B. Transportation of Detained Juveniles

The Division argues that the Circuit Court of Kanawha County was without authority to order the Division to transport juveniles, who are being detained prior to adjudication of delinquency, to and from court proceedings. The Division submits that there is no provision in Chapter 49 of the West Virginia Code mandating that it provide such transportation services. Moreover, the Division contends, it has not been allocated funds to perform such a service and likewise does not have correctional officers or secured vehicles to properly transport such juveniles to and from court appearances.

In addition, the Division argues that, pursuant to W.Va.Code § 28-1-4 (1971) (Repl. Vol.1992), prior to adjudication, juveniles are within the custody of the court pronouncing commitment. Because the juveniles are within the custody of the court, the Division reasons, the county sheriff's department bears the responsibility of transporting juveniles to and from court. In support of this reasoning, the Division cites W.Va.Code § 51-3-5 (1923) (Repl.Vol.1994) ("every circuit court ... shall be attended by the sheriff of the county in which it is held").4 Finally, the Division claims that the sheriff's department has traditionally transported detained juveniles to and from court appearances.

In her response, Judge Berger concedes that the statutes creating the Division do not expressly provide for or require the Division to transport youths in its care. However, Judge Berger submits that no other agency, state or local, is expressly assigned this responsibility. Contrary to the Division's argument that the obligation to transport these juveniles rests with the various county sheriff's departments, Judge Berger contends that the Kanawha County Sheriff's obligation to transport prisoners of any type appears to have expired with the close of the county jail. See W.Va.Code § 7-8-4 (1923) (Repl.Vol. 1993) (requiring county jailer to "attend the sessions of court, be amenable to its authority, and obey its orders"), and W.Va.Code § 31-20-5(v) (1998) (Supp.1998) ("The [Regional Jail A]uthority shall provide for the transportation of inmates between the regional jails and local holding facilities for court appearances.").

According to Judge Berger, "[h]istorically and currently, the jail or juvenile facility having custody of the pre-trial detainee has had the...

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