William C. Forbes|
Michael C. Allen
Special Prosecuting Attorney
Charleston, West Virginia
Attorneys for Petitioner
Assistant Public Defender
Charleston, West Virginia
Attorney for Respondents
JUSTICE McGRAW delivered the Opinion of the Court.
1. 'Prohibition lies only to restrain inferior courts from proceeding in
causes over which they have no jurisdiction, or, in which, having jurisdiction, they are
exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal
or certiorari.' Syl. pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370 (1953).
Syllabus point 2, Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984).
2. 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. Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483
S.E.2d 12 (1996).
3. In proceedings under the West Virginia Post-Conviction Habeas Corpus
Act, W. Va. Code §§ 53-4A-1 to -11, discovery is available only where a court in the exercise
of its discretion determines that such process would assist in resolving a factual dispute that,
if resolved in the petitioner's favor, would entitle him or her to relief.
4. When, during the pendency of a proceeding, a new procedural rule is promulgated, or an existing procedural rule is amended, a circuit court, in its discretion, may nevertheless revert to the previous rule where application of the new or amended rule would be impracticable or work injustice in that proceeding. A circuit court should, however, make every effort to apply the new or amended procedural rule to any matter pending at the time the new rule becomes effective.
This original proceeding in prohibition raises the issue of whether the Circuit
Court of Kanawha County exceeded its legitimate powers by failing to apply the recently-
promulgated Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia
(hereafter the Habeas Corpus Rules) to a discovery dispute arising in a case pending at the
time such rules were adopted. Because application of the new Habeas Corpus Rules in such
a context was obviously both feasible and worked no injustice on the parties, we conclude
that the lower court overstepped its authority in declining to apply the new rules to an
existing discovery dispute.
This case arises out of a habeas corpus proceeding currently pending in the
Circuit Court of Kanawha County. The petitioner in that case, Gerald Mollohan, is
challenging his 1995 convictions on two counts of first-degree sexual assault. Pursuant to
an agreed scheduling order, Mollohan served discovery requests on the State on July 23,
1999, seeking answers to interrogatories and the production of certain documents. On that
same date, Mollohan also noticed the depositions of, and served subpoenas on, two assistant
prosecuting attorneys, K. Michele Drummond and Donald Morris, both of whom
participated in Mollohan's underlying criminal prosecution. The State, as respondent before
the circuit court, subsequently filed omnibus objections to this discovery together with a
motion to quash the subpoenas, arguing among other things that Rule 71B of the West
Virginia Rules of Civil Procedure does not authorize the use of discovery in extraordinary
writs. The circuit court rejected this contention in a November 3, 1999 order, finding that
the civil procedure rules govern discovery in this post-conviction habeas corpus
proceeding. The State's motion to quash was accordingly denied, and Mollohan's motion
to compel discovery granted. See footnote 1
The State subsequently sought prohibition relief in this Court,See footnote 2
December 15, 1999, we issued an order requiring the circuit court to determine whether
discovery should proceed in the underlying proceeding in light of th[e] Court's adoption of
Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia. The
Habeas Corpus Rules took effect immediately upon their issuance on December 13, 1999,
and, by their own terms, apply to all post-conviction habeas corpus matters pending in the
circuit courts of this State . . . [on the date of adoption].
In response to this order, the circuit court conducted a hearing and subsequently
entered an order on February 14, 2000. In that order, the circuit court began by stressing that
it did not construe this Court's December 15 order as requiring it to hold a hearing and
determine whether good cause exists for Mr. Mollohan to obtain the discovery he had
requested previously, as required by Rule 7 of the new . . . [Habeas Corpus Rules].
See footnote 3
according to the lower court, this Court's ruling left it . . . [with] discretion to determine
whether discovery should proceed pursuant to the November 3, 1999 order, in light of the
new habeas rules that took effect December 13, 1999. Stating that consideration such as
logic, fairness and judicial economy require it to apply the new rules to post-conviction
habeas proceedings . . . based on the stage to which that action had progressed as of
December 13, 1999, the circuit court ruled that the West Virginia Rules of Civil Procedure,
and not the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia,
shall govern the discovery depositions.
The State now seeks a writ of prohibition to compel the circuit court to apply
the new Habeas Corpus Rules to the requested depositions, thus requiring Mollohan to
demonstrate good cause before obtaining such discovery.
The general standard for issuance of the writ of prohibition is set forth in
W. Va. Code § 53-1-1 (1923), which states that prohibition shall lie in all cases of
usurpation and abuse of power, when the inferior court has not jurisdiction of the subject
matter in controversy, or, having such jurisdiction exceeds its legitimate powers. See syl.
pt. 2, Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984); syl. pt. 1, Crawford v. Taylor,
138 W. Va. 207, 75 S.E.2d 370 (1953). The statute creates two distinct circumstances
warranting prohibition relief: (1) where a tribunal acts upon a matter over which it has no
jurisdiction; and (2) where a tribunal, although retaining jurisdiction, nevertheless acts
outside of its legitimate powers. The present case falls under the second category, as there
is no jurisdictional challenge to the circuit court's action.
This Court has developed a significant body of law pertaining to the second
category of prohibition cases, including the adoption of a five-factor test for determining
when such relief is appropriate:
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).
We have imposed tight constraints on the extraordinary writ of prohibition,
frequently emphasizing that this Court will use prohibition . . . to correct only substantial,
clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or
common[-]law mandate . . . . Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262
S.E.2d 744 (1979). The Court has concomitantly stressed that [a] writ of prohibition will
not issue to prevent a simple abuse of discretion by a trial court. . . . Syl. pt. 2, in part, State
ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977); see also syl. pt. 3,
State ex rel. McDowell County Sheriff's Dep't v. Stephens, 192 W. Va. 341, 452 S.E.2d 432
(1994). This does not mean, however, that prohibition may never be employed where a
lower court is imbued with some measure of discretion over a particular matter. For
example, while trial courts retain considerable discretion in managing discovery, see syl.
pt. 1, McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995), our past cases have
recognized that there may be circumstances where this discretion is abused to such an extent
that it gives rise to a clear question as to whether there has been a departure from legal
requirements. In syllabus point 1 of State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va.
622, 425 S.E.2d 577 (1992), we held that notwithstanding the discretion ordinarily afforded
a circuit court on discovery matters, [a] writ of prohibition is available to correct a clear
legal error resulting from a trial court's substantial abuse of its discretion in regard to
discovery orders. Thus, although this Court will not use the writ of prohibition to remedy
simple abuses of discretion on the part of inferior tribunals, such relief may be obtained to
correct substantial abuses of discretion tantamount to a clear misapplication of applicable
While this case calls upon the Court to determine the correctness of the circuit
court's refusal to apply the discovery provisions of the new Habeas Corpus Rules to a case
pending at the time these rules became effective, it is important to place the current
controversy into perspective. Thus, before turning to the precise issue involved in this case,
it bears rehashing the broader events that have brought us to this point.
This case is largely the product of the confusion resulting from the 1998
amendments to the West Virginia Rules of Civil Procedure. Those amendments included the
adoption of Rule 71B,See footnote 4
as well as the recision of Rule 81(a)(5).See footnote 5
The intent behind such
changes, as stated by the Advisory Committee, was to dramatically simplify the procedural
aspects of writ practice and align them more closely with 'ordinary' civil procedure. While
these amendments have certainly had such effect, they have also had the unfortunate
consequence of interjecting considerable uncertainty regarding the procedures applicable to
collateral proceedings brought pursuant to the West Virginia Post-Conviction Habeas Corpus
Act, W. Va. Code §§ 53-4A-1 to -11 (the Act).
Prior to 1998 amendments, it was quite clear that the Rules of Civil Procedure
did not apply to collateral actions brought pursuant to the Act. E.g., State ex rel. Bradley v.
Johnson, 152 W. Va. 655, 658, 166 S.E.2d 137, 139 (1969) (noting that Rules of Civil
Procedure do not . . . apply to criminal proceedings, or to the extraordinary proceeding of
habeas corpus . . . .), overruled on other grounds by State v. Eden, 163 W. Va. 370,
256 S.E.2d 868 (1979). We stated succinctly in Gibson v. Dale, 173 W. Va. 681, 319 S.E.2d
806 (1984), that the rules of procedure in criminal and civil cases do not apply in
post-conviction habeas corpus proceedings. Id. at 688 n.7, 319 S.E.2d at 813 n.7. In
making this broad statement, the Court in Gibson relied largely upon the express exclusion
contained in Rule 81(a)(5). As a consequence of the abrogation of this rule, many of the
circuit courts of this jurisdiction understandably interpreted such change to signify a
departure from this past practice.
In response to the uncertainty generated by this development, the Court,
pursuant to its rulemaking authority under Article VIII, § 3 of the West Virginia Constitution,
promulgated the Habeas Corpus Rules. Adopted on December 13, 1999 and given
immediate effect, these rules are modeled closely upon analogous federal rules governing
post-conviction habeas corpus.See footnote 6
Importantly, when appropriate, the Rules of Civil Procedure
may now be applied to habeas proceedings, but only to the extent that they do not conflict
with the more specific provisions of the new rules themselves. The most significant aspects
of the Habeas Corpus Rules largely codify habeas practice as it was prior to 1998.
This is clearly evident in the area of discovery. In accord with our earlier holding in Gibson,See footnote 7 7 where we limited discovery to circumstances where a petitioner can demonstrate that the materials in the possession of the State contain relevant evidence which would enable . . . [the petitioner] to prove specific allegations entitling him to relief, 173 W. Va. at 689, 319 S.E.2d at 814, Habeas Corpus Rule 7(a)See footnote 8 8 now similarly requires that a habeas petitioner obtain leave of court through good cause shown before invoking discovery procedures. Rule 7(a) is intended to be consistent with the standard enunciated in Gibson.
Thus, unlike an ordinary civil litigant, a habeas petitioner is not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 1797, 138 L. Ed. 2d 97, 103 (1997). Instead, discovery is available only where a court in the exercise of its discretion determines that such process would assist in resolving a factual dispute that, if resolved in the petitioner's favor, would entitle him or her to relief.See footnote 9 9
We have never enunciated a broad rule concerning the application of new or
amended rules to pending cases. Instead, our practice has been to incorporate specific
transition provisions into various bodies of procedural rules. The approach taken in W. Va.
R. Crim. P. 59 is indicative of this practice:
These rules shall take effect on October 1, 1981. They govern all proceedings in actions brought after they take effect and also further proceedings in actions then pending, except to the extent that in the opinion of the circuit court their application in a particular action pending when the rules take effect would not be feasible or would work injustice, in which event the former procedure applies.
See also W. Va. R. Civ. P. 86. In the case of our recent adoption of the Habeas Corpus Rules, the Court likewise indicated that [t]he Rules will apply to all post-conviction habeas corpus matters pending in the circuit courts of this State on the date of this Order. The obvious thrust of this type of language is to require application of the new or amended procedural rules to the maximum extent possible. See Espinoza v. United States, 52 F.3d 838, 840 (10th Cir. 1995); Skoczylas v. Federal Bureau of Prisons, 961 F. 2d 543, 546 (5th Cir.1992). While there is a strong judicial presumption against the retroactive application of new laws to pending cases, we have consistently held that statutory changes that are purely procedural in nature will be applied retroactively. Joy v. Chessie Employees Fed. Credit Union, 186 W. Va. 118, 121, 411 S.E.2d 261, 264 (1991) (citing Pnakovich v. SWCC, 163 W. Va. 583, 589, 259 S.E.2d 127, 130 (1979)); see Public Citizen, Inc. v. First Nat'l Bank in Fairmont, 198 W. Va. 329, 335, 480 S.E.2d 538, 544 (1996) (remedial and procedural provisions are applied normally to pending cases despite the absence of a clear statement of legislative intent to do so). The reasoning behind this, as explained in Public Citizen, is that [i]n these situations, the reliance interest that is the foundation of the interpretive principle limiting retroactive application is not engaged. Id.See footnote 10 10
The Habeas Corpus Rules of course do not contain any provisions limiting their
retroactive operation to situations where such application would be practicable and just. This
flexibility should be presumed, however, notwithstanding the absence of such express
language. As our previous cases have stressed, [p]rocedural rules are designed to facilitate
adjudication on the merits; their purpose is not to defeat meritorious claims by requiring
mechanical adherence to rules which unique circumstances make inadvertently oppressive.
Wheeling Dollar Sav. & Trust Co. v. Singer, 162 W. Va. 502, 506-7, 250 S.E.2d 369, 372
(1978) (citing Rosier v. Garron, Inc., 156 W. Va. 861, 199 S.E.2d 50 (1973)). Therefore,
when, during the pendency of a proceeding, a new procedural rule is promulgated, or an
existing procedural rule is amended, a circuit court, in its discretion, may nevertheless revert
to the previous rule where application of the new or amended rule would be impracticable
or work injustice in that proceeding. A circuit court should, however, make every effort to
apply the new or amended procedural rule to any matter pending at the time the new rule
The circuit court was thus correct in discerning that it had discretion in
applying the new rules to the underlying habeas action; however, we still find that such
discretion was substantially abused by the decision not to apply Habeas Corpus Rule 7 to the
discovery matter at issue. We can discern no conceivable basis upon which to conclude that
application of Rule 7 to the depositions in question_which had not yet taken place at the
time the circuit court entered its February 14, 2000 orderSee footnote 11
_was in any way infeasible or
harbored any potential to work injustice on the habeas petitioner. Accordingly, we are
compelled to award the relief sought by the State.
For the reasons stated, we grant the relief requested by petitioner, and issue a
writ of prohibition requiring the Circuit Court of Kanawha County to subject the deposition
requests currently pending in the underlying habeas proceedings to the requirements of
Rule 7 of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West
Writ of prohibition granted as moulded.
Rule 7. Discovery.
(a) Leave of court required._ In post-conviction habeas corpus proceedings, a prisoner may invoke the processes of discovery available under the West Virginia Rules of Civil Procedure if, and to the extent that, the court in the exercise of its discretion, and for good cause shown, grants leave to do so. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the court for a petitioner who qualifies for the appointment of counsel under Rule 3(a).
(b) Requests for discovery._ Requests for discovery shall be accompanied by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced.
(c) Expenses._ If the respondent is granted leave to take the deposition of the petitioner or any other person, the court may, as a condition of taking the deposition, direct the respondent to pay the expenses of travel, subsistence and fees of counsel for the petitioner to attend the taking of the deposition.