Attorney General of West Virginia,
THE HONORABLE PAUL ZAKAIB, JR.,
Judge of the Circuit Court of Kanawha County,
and FAHLGREN MARTIN, INC.
Darrell V. McGraw, Esq.
Silas Taylor, Esq.
Senior Deputy Attorney General
Charleston, West Virginia
Attorneys for the Petitioner
Larry A. Winter, Esq.
David D. Johnson, III., Esq.
Spilman, Thomas & Battle
Charleston, West Virginia
Attorneys for Respondent Fahlgren Martin, Inc.
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "It is settled that in mandamus proceedings where a
public officer willfully fails to obey the law, costs will be
awarded." Syllabus Point 3, Nelson v. West Virginia Public
Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982).
2. "In mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded." Syllabus Point 4, Nelson v. West Virginia Public Employees Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982).
This case's central question concerns whether the
Honorable Darrell V. McGraw, Attorney General of West Virginia,
should pay the costs and attorneys' fees that Fahlgren Martin, Inc.
incurred during a mandamus action in which the Attorney General was
ultimately ordered by this Court to approve as to form a proposed
contract to provide advertising services for the State Lottery.
See State ex rel. Fahlgren Martin, Inc. v. McGraw, 190 W. Va. 306,
438 S.E.2d 338 (1993)(hereinafter Fahlgren Martin I). Because the
Attorney General's actions in Fahlgren Martin I do not show a
"willful" failure to obey the law, we refuse to require the
Attorney General to pay Fahlgren Martin's costs and attorneys'
fees, and, therefore, we grant the requested writ of prohibition.See footnote 1
Today's case arises out of Fahlgren Martin I, a mandamus
action brought by Fahlgren Martin against the Attorney General, Ron
Riley, Director of the Purchasing Division of the Department of
Administration, and Chuck Polan, Secretary of the Department of
Administration. In Fahlgren Martin I, the Attorney General, as
required by W. Va. Code 5A-3-13 , was ordered to approve as to form a proposed contract to provide advertising services for the
State Lottery. After we awarded the requested writ of mandamus in
Fahlgren Martin I, Fahlgren Martin petitioned the Circuit Court of
Kanawha County seeking reimbursement from the Attorney General's
office of its costs and attorneys' fees incurred in the prosecution
of Fahlgren Martin I.
Proceeding on the Fahlgren Martin I record, the circuit
court found that the Attorney General's refusal to approve the 1993
contract was a knowing and willful disregard of his duty that
forced Fahlgren Martin to litigate to obtain that which it was
clearly entitled by statute. The circuit court required the
Attorney General to pay Fahlgren Martin's "costs including
reasonable attorneys' fees incurred in the prosecution and
subsequent appeal of this mandamus action," by order dated 23
February 1994. According to the Attorney General's brief, Fahlgren
Martin's costs and attorneys' fees are approximately $75,000. The
Attorney General then petitioned this Court for a writ to prohibit
enforcement of the circuit court's payment order.
In order to determine the appropriateness of the award of
costs and attorneys' fees, Fahlgren Martin I's record must be
briefly reviewed. An advertising contract between the State Lottery and Fahlgren Martin was drafted after the Lottery
Commission found and the Purchasing Division confirmed that
Fahlgren Martin received the highest score in the 1993 bidding
process. In March 1993, the Purchasing Division forwarded the
purchasing order and underlying documents to the Attorney General
for his review, pursuant to W. Va. Code, 5A-3-13  which
requires the Attorney General to approve contracts as to form.
Fahlgren Martin I, id., 190 W. Va. at ___, 438 S.E.2d at 341.
Because of the April 1993 indictment of Elden "Butch"
Bryan, the Director of the State Lottery, for fraudulently awarding
the 1991 Lottery advertising contract to Fahlgren Martin, the
Attorney General on 5 May 1993 announced he was withholding
approval of the 1993 contract. Id., 190 W. Va. at ___, 438 S.E.2d
at 341. The Attorney General advised Secretary Polan and Mr. Riley
that "until the criminal issue has been resolved...it would be
remiss of this office to approve the contract and the purchase
change request for the fiscal year 1993." Id., 190 W. Va. at ___,
438 S.E.2d at 341. Although there was no evidence of any
illegality in the 1993 contract's procurement, Mr. Bryan and "two
of the three Lottery employees who comprised the 1993 bid
evaluation committee also were involved in the illegal 1991
evaluation process." Id., 190 W. Va. at ___, 438 S.E.2d at 341.
On 14 May 1993, Fahlgren Martin, Inc., filed a petition
for a writ of mandamus in the Circuit Court of Kanawha County to
order the Attorney General to approve the 1993 contract as to form,
and to require Mr. Riley and Mr. Polan to carry out the terms of
the Lottery advertising contract. Id., 190 W. Va. at ___, 438
S.E.2d at 341. The circuit court granted the requested writ of
mandamus and, subsequently, we affirmed.See footnote 2 Following this Court's
decision and the Attorney General's approval as to form, the
Division of Purchasing immediately cancelled the 1993 Lottery
In support of his request for relief, the Attorney General maintains that absent clear precedent, public officers must be allowed to interpret their authority without fear of reprisals. In Fahlgren Martin I, id., 190 W. Va. at ___, 438 S.E.2d at 344, we discussed the case of Manchin v. Browning, 170 W. Va. 779, 296 S.E.2d 909 (1982), which concerned the limited role of the Attorney General. In Fahlgren Martin I, we concluded that under Manchin "because the Attorney General has no common law authority, his power is limited to what is conferred by law through statute and the Constitution." However, we acknowledged that although "the facts behind this case [Fahlgren Martin I] and Manchin are different," Manchin's reasoning applies. Fahlgren Martin I, 190 W. Va. at ___, 438 S.E.2d at 344.
However, in Fahlgren Martin I, the Attorney General did
not use the common law justification rejected in Manchin; rather,
the Attorney General maintained that his authority arose from his
oath of office and noted that during the previous four
administrations, the Attorneys General had considered the legality
of proposed contracts. Based on Manchin's reasoning and the
language of W. Va. Code 5A-3-13 See footnote 3, we rejected the Attorney
General's argument and awarded a writ of mandamus.
Fahlgren Martin maintains that State ex rel. Hercules
Tire & Rubber Supply Co. of W. Va., Wholesale Division of H. & I
Auto Supply Co. v. Gore, 152 W. Va. 76, 159 S.E.2d 801 (1968),
offered the Attorney General clear guidance concerning his role in
the awarding of state contracts. Hercules was a mandamus action to
compel the commissioner of the department of finance and administration to sign a state purchase contract. Although
Hercules, 152 W. Va. at 83, 159 S.E.2d at 806, does note that the
code provides that "'the responsibility and duty of the attorney
general' is merely to approve such contracts as to form," we fail
to see how this one line without explanation in a factually
distinct case offers such clear guidance. In Fahlgren Martin I,
the Attorney General argues that his responsibility arose not just
under the code section but from his oath of office. We also note
that Fahlgren Martin I did not look to Hercules for guidance, and
thus we reject Fahlgren Martin's contention that the Attorney
General violated clear precedent.
Although one requirement for a writ of mandamus is "a
clear right to the relief sought" (Syl. pt. 2, in part, Myers v.
Barte, 167 W. Va. 194, 279 S.E.2d 406 (1981)), the showing of such
"a clear right" does not automatically shift a petitioner's costs
and attorneys' fees onto the public officer involved. Although
some disingenuous hindsight rule would be easy to apply, accurate
predications of court decisions are not a requirement for the
office of Attorney General, even when the Attorney General served
on this Court. See Mitchell v. Forsyth, 472 U. S. 511, 535, 105 S.
Ct. 2806, 2820, 86 L.Ed.2d 411, 431 (1985) (rejecting hindsight-
based reasoning to determine a official's qualified immunity from
suit); State v. Chase Securities, Inc., 188 W. Va. 356, 364, 424 S.E.2d 591, 599 (1992) (in immunity cases, "the official's act must
be shown to have violated clearly established law").
Rather, "[o]rdinarily, in mandamus proceedings, costs
will not be awarded against a public officer who is honestly and in
good faith endeavoring to perform his duty as he conceives it to
be. [Citations omitted.]" Nelson v. West Virginia Public
Employees Ins. Bd., 171 W. Va. 445, 450, 300 S.E.2d 86, 91 (1982).
Accord Syl. pt. 5 Graf v. Frame, 177 W. Va. 282, 352 S.E.2d 31
However, when a public official willfully fails to obey
the law, costs and attorneys' fees will be awarded. Syl. pt. 3,
It is settled that in mandamus proceedings where a public officer willfully fails to obey the law, costs will be awarded.
Syl. pt. 4, Nelson, states:
In mandamus proceedings where a public officer willfully fails to obey the law, attorney fees will be awarded.
See Graf v. Frame, supra, 177 W. Va. at 290, 352 S.E.2d at 39 (refusing to award costs and attorneys' fees because official "endeavored to comply in good faith on a case by case basis"); Pritchard v. Crouser, 175 W. Va. 310, 317, 332 S.E.2d 611, 618 (1985).
Nelson's requirement of a public official's willful
failure, is based on a long common law tradition of protecting a
public servant who acts in good faith even though those acts are
later found to be in error. In State ex rel. Koontz v. Bd. of Park
Com'rs of City of Huntington, 131 W. Va. 417, 429, 47 S.E.2d 689,
696 (1948), we said, "[a]n award of costs in mandamus against a
public officer. . .would have a tendency to deter such officer from
undertaking the performance of his duty in instances in which his
ultimate success may be doubtful." The Supreme Court in Harlow v.
Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d
396, 425 (1982), noted that a rule that routinely penalized public
officers would cause "distraction of officials from their
governmental duties, inhibition of discretionary action, and
deterrence of able people from public service." See, Nelson, 171
W. Va. at 451, 300 S.E.2d at 95 (Neely, J., concurring) (fee-
shifting can be a mechanism to control abuse).
In this case, we find that the Attorney General did not
willfully fail to obey the law and refuse to require the Attorney
General's office to pay the costs and attorney's fees that Fahlgren
Martin incurred in obtaining a writ of mandamus (Fahlgren Martin
I). Although in Manchin, this Court addressed the Attorney
General's common law powers and duties, Fahlgren Martin I, was a
case of first impression that established the procedures to be
followed when the State is about to enter a potentially illegal contract. We refuse to impose costs and attorneys' fees in this
case because we had not spoken in detail with respect to the duty
of the Attorney General in these circumstances. See Graf v. Frame,
supra, 177 W. Va. at 290, 352 S.E.2d at 39 (declining to award
costs and attorneys' fees when a respondent's duty had not been
previously addressed "in detail").
For the above stated reasons, the writ of prohibition is
Footnote: 1 No personal liability is involved because in this matter Attorney General McGraw was acting and was sued in his official capacity. When a public official is acting in his or her official capacity, any award of costs and reasonable attorneys' fees must be paid from the public officer's office budget.
Footnote: 2 The Attorney General appealed the circuit court's mandamus order but Sec. Polan and Mr. Riley did not. Subsequently, we ordered Sec. Polan and Mr. Riley to "make a written response to the appealed order." Fahlgren Martin I, id., 190 W. Va. at ____ n. 1., 438 S.E.2d at 342 n. 1. Sec. Polan and Mr. Riley are not subject to the circuit court's order requiring the Attorney General to pay Fahlgren Martin's attorneys' fees and costs incurred during prosecution of the mandamus action.
Footnote: 3 W. Va. Code 5A-3-13  provides that "[c]ontracts shall be approved as to form by the attorney general. A contract that requires more that six months for its fulfillment shall be filed with the state auditor."