Basil R. Legg, Jr.
V. McGraw, Jr.
Clarksburg, West Virginia Attorney General
Attorney for the Appellant Kellie D. Talbott
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellees
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
2. Absent an express statutory provision to the contrary, West Virginia Code § 29A-5-4 (1998) does not preclude a party from seeking relief from an administrative decision through an extraordinary writ. A party seeking to challenge an administrative decision by means of an extraordinary writ does so under the authority of the statutes permitting such writs.
This is an appeal from the
January 25, 2001, order of the Kanawha County Circuit Court, denying the petition
for a writ of certiorari filed by Dorsey C. Scott (hereinafter Appellant)
to obtain judicial review of the administrative proceedings of the State Superintendent
of Schools (hereinafter State Superintendent) by which Appellant's
professional teaching and administration certificates were revoked. Appellant
assigns error to the circuit court's ruling that, as a matter of law, certiorari
is no longer a proper means by which judicial review of the State Superintendent's
decisions regarding certification revocation may be obtained. Appellant also
argues that the lower court incorrectly found that his due process rights
were not abridged by the procedures followed in the administrative proceedings.
Upon review of the petition for appeal, the certified record and the briefs
and argument of counsel, we reverse the decision of the circuit court and
remand for further proceedings.
By letter dated March 8, 2000,
the State Superintendent notified Appellant that proceedings would be instituted
to consider revocation of his certification because of a history of drunkenness,
including a felony conviction for a third offense of driving under the influence
(See footnote 1) The letter also informed Appellant that a
hearing on the matter would be held before the Professional Practice Panel (hereinafter
Panel) on March 28, 2000, with the proceedings governed by State
Board Policy 1340 (hereinafter Policy 1340")
(See footnote 2) . Additionally, the letter noted
that failure to contest or defend the allegations would result in the admission
of the charges under the provisions of section 4.14 of Policy 1340.
Appellant's counsel formally
requested and was granted a continuance of the March 28, 2000, hearing. During
the period of continuance, settlement negotiations between counsel for the
parties ensued. By letter dated June 14, 2000, counsel for the State Superintendent
forwarded to Appellant's counsel a proposed settlement agreement. After making
minor changes in the agreement, Appellant's counsel forwarded it to his client
on June 20, 2000.
(See footnote 3) On June 29, 2000, counsel for the State
Superintendent faxed a letter bearing the same date to Appellant's counsel which indicated that she understood
that his client was agreeable to entering into a settlement agreement in lieu
of appearing before the Panel but that she had not received a response to
the settlement proposal. The letter went on to state: Please be advised
that the Practice Panel is currently scheduled to meet on July 18, 2000 at
the Wingate Inn in South Charleston, West Virginia. If Mr. Scott has not agreed
to a settlement by that date, we will be presenting evidence before the Panel
in his case. Appellant's counsel asserts that he called counsel for
the State Superintendent upon receipt of the June 29, 2000, letter to request
that the hearing be continued until the August 2000 meeting of the Panel because
he would be in Florida on July 18, 2000, and no other attorney was available
to appear on his client's behalf on that date.
(See footnote 4)
Subsequently, the State
Superintendent sent a letter by certified first-class mail to Appellant on
July 13, 2000. The letter was captioned AMENDED NOTICE and informed
Appellant that, unless he agreed to the settlement proposal, the revocation
hearing before the Panel would be held on July 18, 2000. The amended notice
also specified the time and place of the hearing. A copy of the amended notice was also sent to
(See footnote 5)
The Panel convened the hearing
as scheduled on July 18, 2000.
(See footnote 6) Neither Appellant nor his
attorney were present at the hearing and no explanation was given to the Panel
for their absence. Instead, the State Superintendent's counsel informed the
Panel that Appellant and his attorney were duly notified of the hearings.
Thereafter, the State Superintendent's counsel presented evidence in support
of revocation of Appellant's certification.
On August 2, 2000, the Panel
entered its decision recommending that the State Superintendent revoke Appellant's
certification based on his felony DUI conviction and other DUI convictions
dating back to 1977. The State Superintendent adopted the Panel's recommendation
and by order dated August 17, 2000, revoked Appellant's certification.
Appellant sought judicial
review of the administrative revocation proceedings by filing a petition for
writ of certiorari in the Kanawha County Circuit Court on November 14, 2000. On or about December 13, 2000, the State Superintendent
by counsel filed a motion to dismiss the petition on the grounds that it was
not timely filed within the thirty-day period required by the Administrative
Procedures Act (hereinafter APA).
(See footnote 7) Following the submission
of briefs by the parties, the circuit court entered an order on January 25,
2001, denying Appellant's petition. In this order, the lower court found as
a matter of law that the 1988 amendment of the APA, which added the state
board of education to the agencies subject to the provisions of the APA, eliminated
any other avenue for obtaining judicial review of the State Superintendent's
revocation proceedings. The order also found that the notices of the administrative
hearing issued by the State Superintendent were adequate under due process
principles. It is from this order that this appeal is taken.
Subsequent amendment to
the APA removed the exemption of the State Board of Education.
(See footnote 10)
The State Superintendent argues this amendment, in effect, established
the provisions of the APA as the sole means of pursuing judicial review of
quasi-judicial administrative decisions of the state superintendent. West Virginia Code
§ 29A-5-4(a), which provides for appeal of such orders to a circuit court,
sets forth the ready answer to this argument: [N]othing in this chapter
shall be deemed to prevent other means of review, redress or relief provided
We applied West Virginia Code § 29A-5-4(a) in Halstead v. Dials, 182 W.Va. 695, 391 S.E.2d 385 (1990), in which we granted a writ of mandamus regarding a consent order made by the Commissioner of the Department of Energy in a contested administrative hearing. We recently commented on the vitality of Halstead in State ex rel. Stewart v. Alsop, 207 W.Va. 430, 533 S.E.2d 362 (2000). In Alsop, we granted a writ of mandamus to prevent a circuit court from joining the state superintendent of schools in an action against a county board of education on an employment issue. (See footnote 11) We observed in Alsop that
[a]lthough W.Va. Code §
29A-5-4 governs only appeals from administrative decisions, the statute does
not preclude a party from seeking relief from an administrative decision through
an extraordinary writ. It is specifically provided under W.Va. Code § 29A-5-4(a)
that nothing in this chapter shall be deemed to prevent other means of
review, redress or relief provided by law. When a party seeks to challenge
an administrative decision through an extraordinary writ, he/she does so under
the authority of the statutes permitting such writs.
Id. at 433 n. 4, 533 S.E.2d at 365 n. 4 (citations omitted). We adopt this commentary from Alsop to hold that, absent an express statutory provision to the contrary, West Virginia Code § 29A-5-4 does not preclude a party from seeking relief from an administrative decision through an extraordinary writ. A party seeking to challenge an administrative decision by means of an extraordinary writ does so under the authority of the statutes permitting such writs. We conclude that Appellant in the case before us was entitled to apply to the circuit court for a writ of certiorari if the statutory requirements for such a writ were met by his case. Accordingly, the circuit court's decision in this regard is reversed.
The next issue presented
by Appellant is whether the amended notice issued by the State
Superintendent after the time and place for the initial hearing was altered
was sufficient. In the circumstances of this case, we cannot find Appellant
was harmed by the limited effect of the second notice since it merely advised
him of that which changed _ the time and place of the hearing. See
West Virginia Dept. of Human Servs. v. Tammy B., 180 W.Va. 295, 376
S.E.2d 309 (1988); 2 Am. Jur. 2d Administrative Law § 336 (1994).
However, Appellant further
claims that he was entitled to a hearing before the State Superintendent and
that a hearing before the Panel, even if he and his counsel were able to attend,
is insufficient. We agree. Although the State Superintendent contends that
the procedures set forth in Policy 1340 regarding the conduct of certification
revocation proceedings comport with the provisions of the APA, West Virginia
Code § 29A-5-1(d) (1964) (Repl. Vol. 1998) authorizes hearings to be
conducted only by [t]he agency, any member of the body which comprises
the agency, or any hearing examiner or other person permitted by statute
to hold any such hearing . . . . Id. (emphasis supplied). We
can find no statute authorizing the establishment of a panel to hold a hearing
on the serious matter of terminating a license to teach in this state.
Based upon the foregoing,
the order of the Kanawha County Circuit Court denying the writ of certiorari
is vacated and the matter is remanded to the circuit court for further proceedings
consistent with the conclusions herein stated.
an individual is adversely affected by an educational employment decision
rendered pursuant to W.Va. Code §18A-4-7a (1993) (Repl. Vol. 1997), he/she
may obtain relief from the adverse decision in one of two ways. First, he/she
may request relief by mandamus as permitted by W.Va. Code § 18A-4-7a.
In the alternative, he/she may seek redress through the educational employees'
grievance procedure described in W.Va. Code §§ 18-29-1 to 18-29-11
(1992) (Repl. Vol. 1994). Once an employee chooses one of these courses of
relief, though, he/she is constrained to follow that course to its finality.
(See footnote 12)
Id. at 230, 503 S.E.2d at 543. West Virginia Code § 18A-4-7a relates to professional educational employees; a similar mandamus provision is found in West Virginia Code § 18A- 4-8, which governs school service personnel.