SER Ten South Management v. Hon. Robert B. Wilson ( 2013 )

No. 12-0678 - SER Ten South Management Company v. Wilson
FILED
June 19, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
Workman, Justice, concurring: SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I join in the Court’s holdings that the respondent’s request for an administrative
review meeting pursuant to West Virginia Code § 5-11-10 (2011) was timely; that the
petitioner was not entitled to issuance of an order with detailed findings and conclusions
supporting the Commission’s finding of probable cause; that the petitioner was not entitled
to subpoena all records reviewed by Paul Sheridan with respect to the administrative review
meeting, and/or Mr. Sheridan’s written recommendations; and that in the particular
circumstances of this case, Mr. Sheridan was serving in a judicial role at the meeting and is
therefore disqualified from further participation in this matter as counsel.
I write separately to discuss in more detail what the majority aptly describes as the
“complete disconnect[]” between the statute governing the administrative review hearing,
West Virginia Code § 5-11-10, and the regulation promulgated by the West Virginia Human
Rights Commission, West Virginia Code of State Regulations § 77-2-4.14.f.2.1
1
Title 77, Series 2 of the West Virginia Code of State Regulations, Rules of Practice
and Procedure Before the West Virginia Human Rights Commission, was effective January
1, 1999.
1
West Virginia Code § 5-11-10 provides, in relevant part, that after a complainant has
been served with a no-probable-cause letter, he or she may
file with the commission a written request for a meeting with the
commission to show probable cause for substantiating the
allegations of the complaint. If it shall be determined after such
investigation or meeting that probable cause exists for
substantiating the allegations of the complaint, the commission
shall immediately endeavor to eliminate the unlawful
discriminatory practices . . . .
Under the clear and unambiguous language of the statute, the sole purpose of the meeting
is to give the complainant a second chance to convince the Commission that probable cause
exists. As this Court has previously explained,
[i]f an administrative review of the ‘no probable cause’
determination occurs, the HRC reviews the investigator’s
recommendation along with any new information submitted by
the parties and the initial ‘no probable cause’ determination is
either affirmed, reversed and set for hearing, or remanded within
the HRC for further investigation
Jones v. Glenville State College, 189 W. Va. 546, 551, 433 S.E.2d 49, 54 (1993) (emphasis
supplied).
As noted by the majority, in Jones this Court found that the probable cause
determination “to a certain extent, parallels the gatekeeping function performed by private
attorneys who, prior to filing civil actions in the appropriate forum, determine the validity of
complaints[.]” Id. at 552, 433 S.E.2d at 55 (quoting Allen v. State Human Rights Com’n, 174
W. Va. 139, 150, 324 S.E.2d 99, 110-11 (1984)). In determining whether a complainant has
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demonstrated probable cause at the statutory “second chance” meeting, the Commission is
exercising a purely executive function under W. Va. Code § 5-11-10. “[I]t is clear that the
HRC has only acted as an investigatory body, not a judicial body, in ascertaining whether
probable cause existed to support the allegations in the complaint.” Jones, 189 W. Va. at 553,
433 S.E.2d at 56.
However, the regulation promulgated by the Commission, 77 CSR 2-4.14.f.2,
describes the meeting as one in which “the Complainant shall have the burden of showing
that the dismissal of the complaint is arbitrary, capricious, or not in accordance with the
law.”2 This is, without question, a judicial review standard that is completely disconnected
from the statute. Nothing in the statute suggests that the purpose of the meeting is to
determine the validity of the initial no-probable-cause determination. Rather, the meeting
is one in which the complainant gets a second chance to demonstrate probable cause, and the
Commission gets a second chance to review the evidence and determine whether probable
2
The regulation at issue provides: “The Commission’s attorney or other designated
person shall preside at the review and shall be provided with all information in the
Commission file pertaining to the complaint under review. In the discretion of the presiding
person, testimony taken at such review hearing may be transcribed or taken under oath or
affirmation. The complainant shall have the burden of showing that the dismissal of the
complaint is arbitrary, capricious, or not in accordance with the law. The presiding person,
after considering the evidence, shall file a report and recommendation with the executive
director which shall recommend that the dismissal of the complaint be upheld, reversed, or
modified or that the complaint be remanded for further investigation. The report shall be
filed within fifteen (15) days after the review.”
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cause exists. The complainant may present, and the Commission may consider, additional
evidence and/or argument. See Jones, 189 W. Va. at 551, 433 S.E.2d at 54.
To demonstrate the disconnect between the statute and the regulation, let us envision
a circumstance where a complainant brings additional evidence to the meeting, and/or makes
additional or more persuasive argument as to the merits of the case. After reviewing this
evidence and/or considering this argument, let us assume the Commission determines that
probable cause exists, which is precisely what the statute permits it to do. What, then, would
be the purpose of the Commission going on to determine whether the initial no-probable­
cause finding was “arbitrary, capricious, or not in accordance with the law,” which is what
the regulation requires it to do? If the Commission determines that its initial finding was not
“arbitrary, capricious, or not in accordance with the law,” can it still go forward with the case
based on its consideration of the new evidence or argument? Or was the complainant’s
presentation at the meeting, and the Commission’s finding of probable cause, an exercise in
futility?
Let us now consider the same scenario, but assume that the Commission first
determines that its initial finding was not “arbitrary, capricious, or not in accordance with the
law,” which is precisely what the regulation commands it to do. What, then, would be the
purpose of the Commission going on to permit the complainant “to show probable cause for
substantiating the allegations of the complaint”? If the Commission determines that
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probable cause exists, is it nonetheless precluded from going forward by virtue of its initial
no-probable-cause finding, which it determined to be valid?
As the above demonstrates, the statute provides the complainant with a right: a
second-chance opportunity to convince the Commission that probable cause exists. In
contrast, the regulation takes away that right and instead imposes on the complainant a
burden: to convince the Commission that its initial no-probable-cause determination was
“arbitrary, capricious, or not in accordance with the law.” As a concomitant, the statute
imposes upon the Commission a duty: to determine at the conclusion of the complainant’s
presentation whether probable cause exists and, if so, to proceed to remedy the alleged
discrimination. In contrast, the regulation imposes a limitation on the Commission’s duty:
if the initial no-probable-cause finding was legally sufficient under a judicial review
standard, then there is a serious question as to whether the Commission can proceed to
remedy the alleged discrimination, even if probable cause is found to exist at the conclusion
of the complainant’s presentation at the “second chance” meeting.
This Court has consistently held that
[i]t is fundamental law that the Legislature may delegate to an
administrative agency the power to make rules and regulations
to implement the statute under which the agency functions. In
exercising that power, however, an administrative agency may
not issue a regulation which is inconsistent with, or which alters
or limits its statutory authority.
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Syl. Pt. 6, Simpson v. W. Va. Office of Ins. Com’r, 223 W. Va. 495, 678 S.E.2d 1 (2009); Syl.
Pt. 3, Rowe v. West Virginia Department of Corrections, 170 W. Va. 230, 292 S.E.2d 650(1982). Additionally:
Any rules or regulations drafted by an agency must faithfully
reflect the intention of the Legislature, as expressed in the
controlling legislation. Where a statute contains clear and
unambiguous language, an agency’s rules or regulations must
give that language the same clear and unambiguous force and
effect that the language commands in the statute.
Syl. Pt. 4, Maikotter v. University of West Virginia Board of Trustees/West Virginia
University, 206 W. Va. 691, 527 S.E.2d 802 (1999). Similarly:
‘Rules and Regulations of . . . [an agency] must faithfully reflect
the intention of the legislature; when there is clear and
unambiguous language in a statute, that language must be given
the same clear and unambiguous force and effect in the . . .
[agency’s] Rules and Regulations that it has in the statute.’ Syl.
pt. 4, Ranger Fuel Corp. v. West Virginia Human Rights
Commission, 180 W. Va. 260, 376 S.E.2d 154 (1988).
Syl. Pt. 5, Appalachian Power Co. v. Tax Dep’t., 195 W. Va. 573, 466 S.E.2d 424 (1995)
(quoting Syl. Pt. 2, in part, Chico Dairy Co. v. Human Rights Com’n, 181 W. Va. 238, 382
S.E.2d 75 (1989).
These black-letter principles were anticipated, although not expressly formulated in
syllabus points, in Anderson & Anderson Contractors, Inc. v. Latimer, 162 W. Va. 803, 807­
08, 257 S.E.2d 878, 881 (1979), where this Court held that “[a]lthough an agency may have
power to promulgate rules and regulations, the rules and regulations must be reasonable and
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conform to the laws enacted by the Legislature.” See also Sheppe v. West Virginia Bd. Of
Dental Exmrs., 147 W. Va. 473, 483, 128 S.E.2d 620, 626 (1962) (“the statute . . . is the
ultimate authority and no rules and regulations which are in conflict therewith can be
enforced.”).
Turning again to the statute at issue in this case, West Virginia Code § 5-11-10, we
look at the right which is granted to the complainant in clear, unambiguous terms: he or she
may “file with the commission a written request for a meeting with the commission to show
probable cause for substantiating the allegations of the complaint.” We look then at the duty
which is imposed on the Commission in equally clear, unambiguous terms: “If it shall be
determined after such investigation or meeting that probable cause exists for substantiating
the allegations of the complaint, the commission shall immediately endeavor to eliminate the
unlawful discriminatory practices . . . .” Nothing in the statute requires the complainant to
demonstrate, or the Commission to rule upon, whether the initial no-probable-cause
determination can be sustained under a judicial standard of review. That burden is imposed
solely by the regulation at issue, 77 CSR 2-4.14.f.2. Further, nothing in the statute limits or
extinguishes the Commission’s authority to find probable cause and go forward with a case,
based upon the complainant’s presentation at the meeting. That limitation on the
Commission’s authority, which is urged by the petitioner, is based solely on the regulation
and is a plausible interpretation of its language.
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In short, the statute contains clear and unambiguous language, but the regulation does
not give the statute clear and unambiguous effect. Rather, the regulation takes away the right
given to the complainant by the statute, and imposes a burden in its stead; and takes away the
authority given to the Commission by the statute, and imposes a limitation of authority in its
stead. In short, the regulation, 77 CSR 2-4.14.f.2, does not “faithfully reflect the intention
of the Legislature, as expressed in the controlling legislation . . . ,” Syl. Pt. 4, Maikotter, 206
W. Va. at 692, 527 S.E.2d at 803; see also Syl. Pt. 5, Appalachian Power, 195 W. Va. at 579,
466 S.E.2d at 430; Syl. Pt. 2, in part, Chico Dairy, 181 W. Va. at 239-40, 382 S.E.2d at 76­
77; and “is inconsistent with, or . . . alters or limits [the HRC’s] statutory authority . . . ,” Syl.
Pt. 6, Simpson, 223 W. Va. at 497, 678 S.E.2d at 3.
Turning back to the facts in this case, had the meeting of September 7, 2011, been
held in conformity with the statute, not the regulation, it is clear that its purpose would have
been purely executive. Jones, 189 W. Va. at 553, 433 S.E.2d at 56. Unfortunately, because
the meeting was held in conformity with the regulation, its purpose was judicial, at least in
part, and therefore Mr. Sheridan must be deemed to have been performing a judicial function
insofar as he reviewed the evidence, heard the parties’ arguments, and made a
recommendation to the Acting Executive Director as to whether the previous no-probable­
cause finding was “arbitrary, capricious, or not in accordance with the law.”
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I agree wholeheartedly with the majority that the fault here lay not with Mr. Sheridan,
who was at all times performing the tasks required of him by statute,3 case law,4 and his
client, the Commission, and did nothing improper or unethical. Rather, the fault lay with the
Commission, which promulgated a rule that is totally inconsistent with the statute and sets
up a procedural road block for complainants, a road block entirely inconsistent with the
Commission’s statutory mission to provide a forum for resolution of discrimination
complaints that are supported by probable cause. Although I agree that the validity of 77
CSR 2-4.14.f.2 is not squarely before us, neither of the parties having challenged the rule and
a determination of its validity not being necessary to disposition of the case, this is clearly
an issue that the Commission should consider as it goes forward.
Accordingly, I concur.
3
West Virginia Code § 5-11-7 provides that “[t]he commission may call upon other
officers, departments and agencies of the state government to assist in its hearings, programs
and projects. The Attorney General of the state shall render legal services to the commission
upon request made by the commission or by the chairman or the executive director thereof.”
4
Allen v. State Human Rights Com’n, 174 W. Va. 139, 161 & n.28, 324 S.E.2d 99, 122
& n. 28 (1984) (“the Attorney General has a mandatory duty, under West Virginia Code §
5-11-7 (1979 Replacement Vol.), to furnish all legal services required by the Human Rights
Commission.”); see Vest v. Bd. of Educ. of Cty. of Nicholas, 193 W. Va. 222, 227 n.10, 455
S.E.2d 781, 786 n.10 (1995) (“By virtue of W. Va. Code, 5-11-7 (1967), the State prosecutes
all claims in which probable cause is found and in which the complainant is not represented
by private counsel, and the Attorney General has a mandatory duty to furnish all legal
services required by the Commission.”).
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