STATE OF WEST VIRGINIA EX REL. R.E. HAMRICK, JR., M.D.,
THE HONORABLE JAMES C. STUCKY,
JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, CHARLESTON AREA MEDICAL CENTER, A WEST VIRGINIA CORPORATION, DAVID RAMSEY, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT AND CEO OF CAMC, GLENN CROTTY, M.D., INDIVIDUALLY AND IN HIS CAPACITY AS CHIEF OPERATING OFFICER OF CAMC, ELIZABETH L. SPANGLER, M.D., INDIVIDUALLY AND IN HER CAPACITY AS VICE PRESIDENT OF MEDICAL AFFAIRS AT CAMC, AND FRANKLIN S. FRAGALE, JR., DISCOVERY COMMISSIONER,
PETITION FOR WRIT OF PROHIBITION
Submitted: November 14, 2006
Filed: November 30, 2006
2. Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue. Syllabus Point 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973).
3. In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance. Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).
4. Anyone appointed as a special master is a pro-tempore part-time judge and must comply with the Code of Judicial Conduct as set forth in Canon 6. Syllabus Point 3, Mantz v. Zakaib, 216 W.Va. 609, 609 S.E.2d 870 (2004).
5. Whenever a discovery commissioner is appointed by a circuit court, and there is a timely objection to that appointee, the trial court has a duty to hold an evidentiary hearing to determine the legitimacy of the objection.
This case is before this Court upon a petition for a writ of prohibition filed by the petitioner, Dr. R.E. Hamrick, Jr., against the respondents, the Honorable James C. Stucky, Judge of the Circuit Court of Kanawha County; David Ramsey, individually and in his capacity as President and CEO of Charleston Area Medical Center (CAMC); Glenn Crotty, M.D., individually and in his capacity as Chief Operating Officer of CAMC; Elizabeth L. Spangler, M.D., individually and in her capacity as Vice President of Medical Affairs at CAMC; and Franklin S. Fragale, Jr., discovery commissioner.
The petitioner seeks to prohibit Franklin S. Fragale, Jr., from serving as the discovery commissioner in his underlying case against CAMC arising out of the revocation of his privileges at the hospital. The petitioner contends that Mr. Fragale has a personal bias against him and his attorney and therefore, the circuit court should have granted his motion to recuse Mr. Fragale. Based upon the parties' briefs and arguments in this proceeding as well as the pertinent authorities, the writ is hereby granted.
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).
This Court has also held that:
Where prohibition is sought to restrain a trial court from
the abuse of its legitimate powers, rather than to challenge its
jurisdiction, the appellate court will review each case on its own
particular facts to determine whether a remedy by appeal is both
available and adequate, and only if the appellate court
determines that the abuse of powers is so flagrant and violative
of petitioner's rights as to make a remedy by appeal inadequate,
will a writ of prohibition issue.
Syllabus Point 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973).
Additionally, '[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code, 53-1-1.' Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Syllabus Point 1, State ex rel. Sims v. Perry, 204 W.Va. 625, 515 S.E.2d 582 (1999). Likewise, a writ of prohibition is an appropriate remedy in cases where the lower court has no jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers. W.Va. Code § 53-1-1 (1923). In the instant matter, the circuit court has jurisdiction, therefore we look to Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979):
In determining whether to grant a rule to show cause in
prohibition when a court is not acting in excess of its
jurisdiction, this Court will look to the adequacy of other
available remedies such as appeal and to the over-all economy
of effort and money among litigants, lawyers and courts;
however, this Court will use prohibition in this discretionary
way to correct only substantial, clear-cut, legal errors plainly in
contravention of a clear statutory, constitutional, or common law
mandate which may be resolved independently of any disputed
facts and only in cases where there is a high probability that the
trial will be completely reversed if the error is not corrected in
Further, in Syllabus Point 2 of State ex rel. State Road Commission v. Taylor, 151 W.Va. 535, 153 S.E.2d 531 (1967), this Court provided: Although a court has jurisdiction of the subject matter in controversy and of the parties, if it clearly appears that in the conduct of the case it has exceeded its legitimate powers with respect to some pertinent question a writ of prohibition will lie to prevent such abuse of power.
With those principles in mind, we note that this Court has held that discovery commissioners are subject to the Code of Judicial Conduct. In Syllabus Point 3 of Mantz, supra, we held that: Anyone appointed as a special master is a pro-tempore part-time judge and must comply with the Code of Judicial Conduct as set forth in Canon 6. Moreover, Canon 3 of the Code of Judicial Conduct requires special masters to perform their duties diligently and impartially. Further, Canon 3E(1) provides that, A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned[.]
Similarly, West Virginia Code of Judicial Conduct, Canon 3E(1)(a) states that a discovery commissioner has an affirmative duty to disqualify himself when the commissioner has a personal bias or prejudice concerning a party or a party's lawyer[.] In Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 108, 459 S.E.2d 374, 385 (1995), this Court explained that:
To protect against the appearance of impropriety, courts
in this country consistently hold that a judge should disqualify
himself or herself from any proceeding in which his or her
impartiality might reasonably be questioned ... we have
repeatedly held that where 'the circumstances offer a possible
temptation to the average ... [person] as a judge not to hold the
balance nice, clear and true' between the parties, a judge
should be recused. (citation omitted) (emphasis added). Syl. pt.
3, in part, State ex rel. Brown v. Dietrick, 191 W.Va. 169, 444
S.E.2d 47 (1994) ... In Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 2203, 100 L.Ed.2d
855, 872-73 (1988), the United States Supreme Court described
the standard for recusal as whether a reasonable and objective
person knowing all the facts would harbor doubts concerning
the judge's impartiality. The Supreme Court stated: 'The goal
is to avoid even the appearance of partiality.' Liljeberg, 486
U.S. at 860, 108 S.Ct. at 2203, 100 L.Ed.2d at 872. (Citation
omitted). To be clear, avoiding the appearance of impropriety
is as important in developing public confidence in our judicial
system as avoiding impropriety itself.
After fully reviewing the parties' arguments, we believe that given the circumstances surrounding the underlying case between the parties, the circuit court should have disqualified Mr. Fragale. Upon learning of Mr. Fragale's appointment as discovery commissioner, on July 19, 2006, Dr. Hamrick promptly filed his motion to recuse. At that time, Dr. Hamrick, through counsel, advised the circuit court that he was hesitant to place the specific objections in his motion to recuse due to the inflammatory and salacious nature of the objections. The circuit court then sent a letter to Dr. Hamrick's counsel asking for the additional details as to the basis of the requested recusal. On July 24, 2006, Dr. Hamrick filed his amended motion for recusal wherein he detailed the alleged conduct of Mr. Fragale against him and against his counsel Ms. Miller.
Having reviewed the allegations against Mr. Fragale, we believe that at a minimum they demonstrate specific conflicts between the parties which have resulted in turmoil and considerable discord. If the allegations against Mr. Fragale are accurate, we believe that such conduct would have necessarily affected the outcome of the underlying case. Nonetheless, in spite of the very serious allegations set forth by Dr. Hamrick against Mr. Fragale, on August 10, 2006, the circuit court ruled that a hearing [was] not necessary in order for the Court to make a decision in this matter and good cause or other justification does not exist to grant said motion.
We believe that a hearing should have been held in this matter to thoroughly investigate the allegations against Mr. Fragale. Since that did not happen, we are left without an adequate record with which to sufficiently explore those allegations. Moreover, given the sensitive nature of the allegations against Mr. Fragale combined with the myriad filings against him in the circuit court as well as before this Court, regardless of the veracity of those claims, we believe that in order to avoid the appearance of impropriety in the underlying case, the appropriate action should be the removal of Mr. Fragale as discovery commissioner. Upon removal of Mr. Fragale, the circuit court should immediately appoint a new discovery commissioner so that the underlying legal action may proceed promptly in order that all parties receive a fair and equitable hearing before an unbiased discovery commissioner.
According to the West Virginia State Bar, there are nearly 1,700 active lawyers in Kanawha County. It certainly should have been possible for the circuit court to have found one discovery commissioner who did not have a prior conflict or a quarrel with the parties involved in this litigation. It seems to us that it would have been an easy solution to have simply substituted another lawyer in this case to act as the discovery commissioner. At a minimum, as we have discussed, the circuit court should have conducted a hearing to test the veracity of the allegations set forth by Dr. Hamrick.
There simply has to be some manner in which parties to litigation are able to test the truth of such allegations and to introduce witnesses during an evidentiary hearing when a situation arises such as the one before us today. There is no question that the underlying allegations asserted outrageous conduct and we are at a loss to understand why the circuit court did not explore them further. We therefore hold that whenever a discovery commissioner is appointed by a circuit court, and there is a timely objection to that appointee, the trial court has a duty to hold an evidentiary hearing to determine the legitimacy of the objection.
In summary, we believe that it is in the best interests of all of the parties involved in the underlying legal action that in order to avoid even the appearance of partiality that Mr. Fragale be removed from the case as discovery commissioner. See Mantz, 216 W.Va. at 614, 609 S.E.2d at 875 (citations omitted). Consequently, we instruct the Circuit Court of Kanawha County to enter an order disqualifying Mr. Fragale from acting as discovery commissioner in this matter and direct the circuit court to immediately thereafter appoint a new commissioner.
Based upon the foregoing, we grant Dr. Hamrick's request for a writ of prohibition.