West Virginia Advocates for the Developmentally Disabled v. Casey

• Decision Date: 03 December 1987
• Docket Number: No. 17951,17951
• Citation: 178 W.Va. 682,364 S.E.2d 8
• Parties: WEST VIRGINIA ADVOCATES FOR THE DEVELOPMENTALLY DISABLED v. The Honorable Patrick CASEY, Judge of the Circuit Court of Kanawha County.
• Court: West Virginia Supreme Court

Page 8

364 S.E.2d 8

178 W.Va. 682

WEST VIRGINIA ADVOCATES FOR THE DEVELOPMENTALLY DISABLED v. The Honorable Patrick CASEY, Judge of the Circuit Court of

Kanawha County.

No. 17951.

Supreme Court of Appeals of

West Virginia.

Dec. 3, 1987.

Syllabus by the Court

1. A subpoena duces tecum issued by an administrative agency in connection with a hearing in a contested case must be served either by personal service or by registered or certified mail. W.Va.Code § 29A-5-1(b) (1986).

2. The good faith of the applicant is relevant in a proceeding before the Health Care Cost Review Authority to obtain a certificate of need, and may be inquired into by an affected person where facts on the record indicate that the applicant may have submitted false information.

3. "The writ of prohibition lies as a matter of right when the inferior court does not have jurisdiction of the subject matter in controversy or, having such jurisdiction, exceeds its legitimate powers." Syl. pt. 5, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960).

Robert R. Rodecker, Charleston, for petitioner.

James B. McIntyre, and James W. Thomas, Charleston, for respondent.

BROTHERTON, Justice:

In this proceeding, the West Virginia Advocates for the Developmentally Disabled (WVADD) ¹ asks us to prohibit enforcement of an order issued by the respondent, Judge Casey. The order granted a motion to quash or modify a subpoena duces tecum issued by the Health Care Cost Review Authority (HCCRA). We find, for the reasons set out below, that the circuit court was correct in quashing the subpoena, because it was not served in accordance with W.Va.Code § 29A-5-1(b) and, therefore, deny the writ as it relates to that portion of the order. We disagree, however, with the respondent judge's further conclusion that the evidence sought was necessarily irrelevant, and grant the writ in relevant part.

In December, 1986, Potomac Medical, Inc., filed an application with HCCRA for a certificate of need to construct a 220-bed psychiatric hospital in Raleigh County, West Virginia. See W.Va.Code § 16-2D-1 to -15. The petitioner, WVADD, sought and was granted "affected person" status. See W.Va.Code § 16-2D-2 (1985). The Health Care Cost Review Authority held an administrative hearing on the application in May, 1987. During the course of that hearing, a witness for Potomac Medical, Inc., testified that Charleston National Bank had agreed to provide up to $35 million for construction of the project. WVADD introduced evidence, however, that the maximum legal participation by Charleston National Bank was $6.3 million. At the conclusion of the hearing, counsel for Potomac Medical, Inc., requested that the record remain open in order for the applicant to submit further financial information.

On May 21, 1987, Potomac Medical filed additional information with HCCRA stating that funding was available through Prince Ahmed bin Abdulrahman. The information consisted of two letters addressed to James R. Clowser, the president of Potomac Medical, Inc. The letters were written on "Ahmed International, Inc." stationery, and offered a loan of $35 million on terms and with conditions not relevant to this opinion. Soon thereafter, WVADD filed information indicating, among other things, that Prince Ahmed bin Abdulrahman was not capable of providing the proffered financing. Further, Ahmed International, Inc., a Texas corporation, had ceased all activity late in 1986, and the prince was not authorized to loan money on its behalf. In response to this filing, Potomac Medical withdrew any reliance on Prince Ahmed bin Abdulrahman and informed HCCRA that it could obtain bond financing through Continental Securities Corporation.

On July 10, 1987, HCCRA held a conference and decided to re-open the hearing on August 5, taking into evidence the two letters from the prince and any additional information regarding source and nature of financing. The hearing examiner noted that the loan from the prince was only one source of financing offered, and that methods of financing similar projects often have changed, even after a certificate of need has been issued. The examiner expressed a desire to have full information regarding bond financing from Continental Securities Corporation in the file, and indicated a willingness to re-examine possible financing from Charleston National Bank. When asked specifically whether WVADD could inquire further regarding negotiations with the prince, the examiner indicated that such evidence and any objections thereto would be addressed at the August 5 hearing.

On July 29, HCCRA granted WVADD's request for a subpoena duces tecum directing James R. Clowser, president of Potomac Medical, Inc., to appear and to produce, among other things, all information in his possession relating to Prince Ahmed bin Abdulrahman. The subpoena was served on counsel for Mr. Clowser. Counsel for Mr. Clowser filed a motion to quash or mold the subpoena in the Circuit Court of Kanawha County, charging that WVADD did not serve the subpoena in accordance with W.Va.Code § 29A-5-1(b), and that to the extent it sought information regarding the prince, the subpoena sought irrelevant evidence and was, therefore, unreasonable.

After a hearing the respondent, Judge Casey, found that the subpoena was not served in compliance with W.Va.Code § 29A-5-1(b) because it was not served in person or by registered mail, and that information regarding Prince Ahmed bin Abdulrahman was irrelevant, because the applicant no longer relied on him for financing. Judge Casey, therefore, ordered that the subpoena be quashed, and granted WVADD leave to re-subpoena Mr. Clowser and to request documents other than those relating to the prince.

The petitioner, WVADD, requests this Court to prohibit the enforcement of the respondent's order, and to permit inquiry into Potomac Medical's correspondence with the prince because it is relevant to the credibility of the applicant. Counsel for Mr. Clowser responds that the information is irrelevant, and that WVADD seeks only to stall the issuance of a certificate of need because it is philosophically opposed to the project. Proceedings at the administrative level have been stayed pending resolution of this issue.

I.

The Health Care Cost Review Authority is authorized to issue subpoenas duces tecum by W.Va.Code § 16-29B-12(c) (1985). The same section makes applicable the relevant provisions of the Administrative Procedures Act, Chapter 29A of the West Virginia Code. Section 29A-5-1(b) (1985) provides that a subpoena issued under its auspices "shall be served ... either by personal...