Commonwealth Ex Rel. State Water Control Board v. Appalachian Power Co.

402 S.E.2d 703, 12 Va. App. 73, 7 Va. Law Rep. 1897, 1991 Va. App. LEXIS 44

• Court: Court of Appeals of Virginia
• Decided: March 19, 1991
• Docket: Record No. 1274-88-3
• Status: Published

Opinions

Benton, J., joined by Barrow, J., and Kennan, J.,

dissenting.

A case is moot when, upon “the termination of the circumstances out of which a controversy arose ... an adjudication upon the merits could serve no useful purpose beyond the gratification of a litigious party’s will to win.” Note, “Moot” Administrative Orders, 53 Harv. L. Rev. 628 (1940). “ ‘The duty of this court as to every other judicial tribunal, is to decide actual controversies by a judgment which can be carried in effect, and not to give opinions upon moot questions or abstract propositions, or to declare principals or rules of law which cannot affect the matter in issue in the case before it.’ ” Potts v. Mathieson Alkali Works, 165 Va. 196, 225, 181 S.E. 521, 533 (1935) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)) (emphasis added). I would hold that the matter at issue in this appeal is moot.

The mootness doctrine applies to administrative law cases whenever the record establishes:

that after the rendition of the administrative determination from which relief is sought in a court, an event has occurred which renders moot what, except for such event, might be a controversy upon which judicial power could act. The intervening events which may render a case moot are of varied character, such as subsequent legislation. . . .

2 Am. Jur. 2d Administrative Law §573 (1962); see also Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 148-49 (1937); United States v. Alaska Steamship Co., 253 U.S. 113, 115 (1920); Church of Scientology Flag Serv. Org. v. City of Clearwater, 777 F.2d 598, 604-06 (11th Cir. 1985), cert. denied, 476 U.S. 1116 (1986). A ruling should not be made on the merits of this appeal precisely because intervening events and a statutory change combined to terminate the controversy. The majority’s ruling will decide no actual controversy and will provide neither party with any relief.

The majority implies that the mootness doctrine should not apply when the issue is “capable of repetition, but evading review.” However, the majority does not explain how that theory is applicable to the issues presented by this appeal. Although Virginia cases do not address in detail the concept that the majority espouses, the West Virginia Supreme Court has adopted a test that I believe is persuasive and workable. In determining whether issues are “capable of repetition, but evading review,” that court has adopted a three-step analysis:

“First, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief. . . . Second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public. . . . Third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided. . . .”

Israel v. West Virginia Secondary Schools Activities Comm’n, 388 S.E.2d 480, 483 (W. Va. 1989) (quoting State v. Gleason, 404 A.2d 573, 578 (Me. 1979)).

The application of that test to the circumstances of this case does not lead to the conclusion that the mootness doctrine should be avoided. The issue in this appeal concerns the interpretation of a portion of Code § 62.1-44.15 that addressed the Board’s obligation in 1987 to hold an administrative hearing. Although the circuit court ruled that the Board violated the statute and voided the regulations adopted at the challenged hearing, the Board later met at a duly constituted, lawful meeting while this action was pending and adopted regulations virtually identical to the regulations voided by the circuit court. No challenge has been brought concerning the validity of that later meeting or the regulations adopted at that meeting.

More significantly, on July 1, 1989, during the pendency of this action, the legislature amended Code § 62.1-44.15 by fundamentally changing that portion of the statute governing the Board’s obligation to hold a hearing. All the parties concede that due to the amendment to Code § 62.1-44.15 the Board’s obligation to hold an administrative hearing has been substantially and fundamentally changed. This Court’s ruling concerning Code § 62.1-44.15, as it existed in 1987, no longer has any significance and certainly is irrelevant to any issues arising under the statute as it is now written.³

In addition, there is not, and cannot be, any suggestion that this Court’s interpretation of the statute governing the Board’s administrative hearing procedure, which has now been amended so as to fundamentally change the applicable procedure, raises an issue of great public interest. Likewise, no argument exists that this is an issue that may be repeatedly presented to the circuit court, yet escape review because of its fleeting nature. In summary, the theory that the majority relies upon to support its conclusion that the appeal is not moot simply cannot withstand analysis when tested upon the circumstances of this case. See also Weinstein v. Bradford, 423 U.S. 147, 148-49 (1975) (“in the absence of a class action, the ‘capable of repetition, yet evading review’ doctrine” has limited application).

Although I would hold that this action is moot, Appalachian is entitled to a decision concerning attorney fees. By its terms, Code § 9-6.14:21 allows a person who “contests any agency action . . . to recover . . . reasonable costs and attorney fees if such person substantially prevails on the merits of the case and the agency is found to have acted unreasonably, unless special circumstances would make an award unjust.” Like 42 U.S.C. § 1988, an analogous attorney fee statute, nothing in the language of Code § 9-6.14:21 conditions the power of the court to award fees on full litigation of the issues. Cf. Maher v. Gagne, 448 U.S. 122, 129 (1980). Thus, the awarding of costs and attorney fees is not contingent upon a determination whether an action is moot. Exeter-West Greenwich Regional Sch. Dist. v. Pontarelli, 788 F.2d 47, 52 (1st Cir. 1986).

However, I believe that the majority improvidently decides the reasonableness of the Board’s conduct. Whether the Board acted unreasonably is a question which involves in substantial measure issues of fact that should first should be determined by the trial court. Thus, I would further hold that Appalachian substantially prevailed and remand to the trial court the determination whether Appalachian is entitled to reasonable costs and attorney fees based upon the trial court’s findings concerning whether the agency acted unreasonably and whether special circumstances prevailed. See Code § 9-6.14:21.

3 Although the majority seems to suggest that a case is not moot when an agency enacts emergency measures to provide temporary relief while the validity of its permanent regulations is being judicially determined, we need not decide that issue because that is not this case.

This action was originally brought in 1987 by Appalachian Power Company to challenge the validity of regulations adopted by the State Water Control Board. In sustaining a motion for summary judgment, the trial judge held that the meeting at which the regulations were adopted was not conducted in conformance with state law and that as a consequence the regulations were void. While the Board’s appeal was pending in this Court, the Board met at a lawfully constituted meeting on September 27, 1988, and promulgated emergency regulations identical to those that had been adopted at the meeting that was deemed unlawful. Also while the appeal was pending the Board revised and repromulgated the regulations that the trial judge voided. Those revised and repromulgated regulations were enacted in accordance with statutory law as final regulations on September 13, 1989. No challenge was made to those meetings or to the final regulations that were enacted in 1989.

It should be noted, however, that the question at issue in the appeal to this Court does not concern the content of the regulations. The regulations are now in effect and have been so since 1988. The initial regulations were void only as a consequence of the trial court’s ruling that the meeting at which they were adopted was unlawful. Thus, the gravamen of the legal challenge was, and remains, whether the 1987 Board meeting was held in conformance with the law. However, in 1989 the legislature amended the law governing the Board’s procedure for holding such a meeting. It is this statutory change that causes this appeal to be moot. The statutory change is neither an emergency measure nor temporary.