Rice v. Underwood

517 S.E.2d 751, 205 W. Va. 274, 1998 W. Va. LEXIS 222
CourtWest Virginia Supreme Court
DecidedDecember 11, 1998
Docket25166
StatusPublished
Cited by10 cases

This text of 517 S.E.2d 751 (Rice v. Underwood) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rice v. Underwood, 517 S.E.2d 751, 205 W. Va. 274, 1998 W. Va. LEXIS 222 (W. Va. 1998).

Opinion

WORKMAN, Justice:

The Appellant and Petitioner below, Thomas D. Rice (“Appellant”), appeals the denial of his petition seeking to prohibit the Appel-lee and Respondent below, the Honorable Cecil H. Underwood, Governor of the State of West Virginia (“Governor Underwood”), from removing him as an appointed member of the West Virginia Racing Commission (“Racing Commission”) before the expiration of his term and seeking an order that Governor Underwood’s appointment of Mr. Rice’s successor to the Racing Commission be declared null and void.

This matter was originally brought as a writ of prohibition against Governor Underwood in the Circuit Court of Kanawha County. The circuit court correctly recognized that Appellant’s petition for writ of prohibition was inappropriate since it was not directed to an inferior tribunal. 1 Accordingly, the circuit court properly elected to treat Appellant’s petition as a writ of mandamus and petition for injunctive relief. Appellant contends that West Virginia Code § 6-6-4 (1993), upon which Governor Underwood based his removal of Appellant, (1) violates *278 the West Virginia Constitution and (2) was repealed by implication with the enactment of West Virginia Code § 19-23-27 (1997). Because we find that West Virginia Code § 6 — 6—4 is consistent with constitutional provisions, has not been repealed by implication, and was properly invoked by Governor Underwood in removing Appellant from the Racing Commission, we must uphold the circuit court’s order denying the relief sought by Appellant.

I. Background Facts

The basic facts in the case are not disputed. Appellant was appointed as a member of the Racing Commission by former Governor, Gaston Caperton, on August 2, 1996. Appellant’s appointment was confirmed by the Senate of the West Virginia Legislature in Special Session on October 16, 1996. Appellant’s appointment was for a term ending April 1, 2000. Governor Underwood, without citation of cause, removed Appellant as a member of the Racing Commission effective November 15, 1997. Governor Underwood’s November 13, 1997, letter removing Appellant simply stated, “[b]y virtue of the authority vested in me as Governor of West Virginia, I hereby remove you from office as a member of the West Virginia Racing Commission, effective November 15, 1997.” Governor Underwood appointed Joseph B. Knotts as Appellant’s successor, effective November 16, 1997. Mr. Knotts’ appointment was unanimously confirmed by the Senate of the West Virginia Legislature in the 1998 Regular Session on March 14,1998.

Appellant brought a writ a prohibition against Governor Underwood in the Circuit Court of Kanawha County on November 24, 1997, seeking an order to prohibit Governor Underwood from removing him from the Racing Commission. On that same day, a rule to show cause was issued. On December 4, 1997, Appellant amended his petition and sought an order that Governor Underwood’s November 16, 1997, appointment of Joseph B. Knotts to the Racing Commission be declared null and void. As explained above, the circuit court treated Appellant’s petition for a writ of prohibition as a writ of mandamus and petition for injunctive relief. After a hearing on the matter, the circuit court issued an order, dated December 19, 1997, denying the relief sought by Appellant and dismissing his petition. The circuit court found that, pursuant to West Virginia Code § 6-6-4, Appellant served as a member of the Racing Commission at the Governor’s will and pleasure and, therefore, Governor Underwood was entitled to remove Appellant at his will and pleasure.

II. Standard of Review

The instant appeal comes to this Court by way of a ruling by the circuit court denying Appellant a writ of mandamus against Governor Underwood. When reviewing a circuit court’s decision to deny or to grant the extraordinary remedy of mandamus, “ ‘[t]he standard of appellate review of a circuit court’s order granting relief through the extraordinary writ of mandamus is de novo.’ Syllabus Point 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995).” Syl. Pt. 1, O’Daniels v. City of Charleston, 200 W.Va. 711, 490 S.E.2d 800 (1997). In this regard, “we consider de novo whether the legal prerequisites for mandamus relief are present.” State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996).

“ ‘A writ of mandamus will not issue unless three elements coexist — (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.’ Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993); Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).” Syl. Pt. 2, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995). In reviewing a petitioning party’s entitlement to the remedy of mandamus, we examine whether the party seeking the relief has a legal right to such relief and whether a corresponding duty exists that the respondent perform the relief sought.

Appellant has also raised issues regarding the correctness of the circuit court’s interpretation of statutory and common law. The law in this state is well-settled that, “ ‘[wjhere the issue on appeal from the circuit court is clearly a question of law or involving *279 an interpretation of a statute, we apply a de novo standard of review.’ Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” Syl. Pt. 1, University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996).

III. Discussion

Appellant first contends that the lower court erred by failing to recognize that West Virginia Code § 6 — 6—4, upon which Governor Underwood relied in removing him, violates Article IV, § 6, Article IV, § 8, Article V, § 1, Article VII, § 8, and Article VII, § 10 of the West Virginia Constitution, as they apply to a public officer or board member with staggered fixed terms whose duties are quasi-legislative or quasi-judicial in nature. Appellant argues that the separation of powers doctrine dictates that the executive is not to use the sword of removal of a quasi-judicial or quasi-legislative public officer simply because he wishes to have someone of his own choosing in that office.

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Cite This Page — Counsel Stack

Bluebook (online)
517 S.E.2d 751, 205 W. Va. 274, 1998 W. Va. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-underwood-wva-1998.