. S.·G. Yurkq
Updated By Melissa Marland

I. INTRODUCTION ………………………………………………………………………………………………… 1
II. SEPARATION OF POWERS …………………….. …………………………………………………………… 1
III. RULEMAKING …………………………………………………………………………………………………. 2
IV. CONTESTED CASES ………………………………………………………………………………………….. 4
V, APPEALS AND JUDICIAL REVIEW …………………………………………………………………………. 6
VI. FREEDOM OF INFORMATION ……………………………………………………………………………… 8
VII. CONCLUSION ………………………………………………………………………………………………… 10
FOOTNOTES . . .. . . . . . . .. .. . . .. . .. . . . . . .. .. . . . . . .. . . . . .. . .. .. . .. .. . .. . . . . . . . . . . . .. .. . . .. . .. . . . . .. .. .. . .. . . . . . . . . .. .. .. . . . . . .. .. . . .. .. . … . . .. . . 11
Administrative law is the “branch of law that controls the administrative operations of government..
It sets forth the powers that may be exercised by administrative agencies, lays down the principles
governing the exercise of those powers and provides legal remedies to those aggrieved by administrative
action.” 1
Thus, administrative law encompasses most areas of public policy. Implementation of administrative
law occurs through legislatively authorized agencies. The Administrative Procedures Act, which
generally governs the procedures of an agency, is found ·in West Virginia Code § 29A-l-l et seq. 2
An administrative agency is defmed as “any state board, commission, department, office or officer
authorized by law to make rules or adjudicate contested cases”, except those in the legislative or
judicial branches. 3 ·
Soine agencies, state boards, commissions, departments and officers are not included in W. Va.
Code §29A-l-l et seq. The excluded officials and governmental organizations receive separate
treatment in the Code under their specific title. 4 Counties and local governmental agencies are not
included in West Virginia Code §29A-l-l et seq. 5
Implementation of legislative directives results in a blending of quasi-legislative and quasi-judicial
powers. These powers irichide the authority to issue rules and regulations that have the force of law, to
pennit investigation of charges and to decide cases. 6
Despite. the apparent conflict with separation of powers principles,· the courts· recognize the
le.gislature’s right to delegate to-an administrative agency the power to niake rules and regulations~ 7 The
)Vest Virginia· Supreme Court of ·Appeals takes· the position that although agencies have . matters
submitted to them in which they “take evidence, attempt to apply law, and make decisions, these acts are
not judicial acts. 8 Rather, the Court characterizes these acts as quasi-judicial.
Generally left free to develop rules and regulations under the legislative delegation of discretionary
authority, an administrative agency develops expertise in a particular area. Judicial discretion and
deference· to agency actions and interpretations . of statute by officers or agencies charged with its
administration is· practiced by the courts because of the expertise developed by the agencies. 9
Therefore, absent an abuse of discretion, the courts generally decline to disturb agency actions.
There are, however, limitations to judicial deference. When an agency reverses course from its
precedents, reasonable notice and supporting rationale must be given before the standards are changed.
~ailure to do so may lead to the inference that the agency’s actions are arbitrary and capricious. Such a
actice may result in the court’s re£usal to enforce legislative rules and regulations. 10
Administrative agencies have no general or common law powers. Administrative agencies may onJ.r · ·act
within the scope of the authority conferred on them. 11 An agency’s power, therefore, must l
found statutorily either expressly or by implication. An agency’s power may not, however, be extended
by implication beyond that which is necessary for just and reasonable execution of the power. 12
Responsibility for determining the limits of statutory grants of authority by the legislature is a judicial
function entrusted to the courts. West Virginia courts, however, tend to construe an agency’s authority
broadly enough to prevent the defeat of the statutorily identified purpose. 13 Judicial construction of
agency pwposes tends to deal with the .rights of the public rather than the internal rights of agency
employees. 14 Thus, when a court is askecl tofmd_implied powers in a grant of legislative authority, it
must assume that the lawmakers intended to place no greater restraint on the liberties of a citizen than
was clearly and unmistakenly indicated by language used in the statute. 15
Moreover, any administrative –yegulation that significantly interferes with the exercise of a
fundamental right requires rigorous scrutiny and must be supported by a compelling interest.16
Rulemaking has evolved as the agency’s method of policy development. Exchanging places with ad
hoc procedure, rulemaking develops uniformity in procedure and -compliance with policy.· Further,
rulemaking puts affected parties on notice of potential changes in administrative procedure.
Rulemaking is defined as the. “process for the formulation, amendment or repeal of a rule … ” 1 .
A rule is defmed to inClude every regulation, standard or statement of policy or interpretation of general
application and future effect, including the amendment or repeal thereof, affecting private rights;
privileges or interests, or the procedures available to the public, adopted by an agency to implement,
extend, apply, interpret or make specific the law enforced or administered by it or to govern its
organization or procedure. 18 Thus, rules promulgated by an agency must derive their force and effect
from the statute under which they are promulgated. Rules may not be in conflict with the statute nor can
they supply omissions of. the statute. 19 ·Furthermore, ·an agency is not permitted to promulgate rules
which alter, limit or conflict with the express provisions of the enacting statute. 20
There are three classifications of rules identifie4 in the Code. Each classification is defined by the
action it pennits the administrative agency to take. The three classifications are interpretive rules,
legislative rules and procedural rules. An interpretive rule is defmed as a rule which is:
adopted by an agency independently of any delegation of legislative power which is intended by
the agency to provide information or guidance to the public regarding the agency’s
interpretations, policy or opinions upon the law enforced or administered by it and which is not
intended by the agency to be determinative of any issue affecting private rights, privileges or
interests . . . . 21
” A legislative rule is defmed as a rule which is proposed or promulgated by an agency which, when
.:ffective, “is determinative on any issue affecting private rights, privileges or interests . . . . ” 22 A
legislative rule has the force of law or may provide a basis for civil or criminal liability. A legislative
rule may also grant or deny specific benefits.23
A procedural rule is a rule “which fixes .rules of procedure, practice or evidence for dealings with or
proceedings before an agency, including forms prescribed by the agency.” 24
Before a procedural or interpretive rule may be promulgated, the agency must provide notice to the
public. Notice ·is accomplished when the agency files the proposed text in the State Register. 25 Notice
requirements include the time, place and date of the hearing and must be published in the State Register
“not less than thirty nor more than sixty. days before the date of such hearing or the last day specified … ”
··-for receiving written material. 26 Depending on the rule, evidence for any fmdings and determinations
may be taken or an opportunity for public comment may be required. Although it is normally within an
agency’s discretion to determine the· appropriate spokesperson for presentation of opposing viewpoints,
it must, under standards of reasonableness and good faith, consider a legitimate request by those wishing
to express opposing views. 27 The agency has the discretion to limit public co~ent to a written form.
All fmdings and determinations shall be filed in the State ·Register. The agency must include a
·<,tatement of reasons and a· transcript of all evidence and public comments ·received pursuant to
.>tice. “29 This information is to remain available for public inspection for at least five years from the
hearing date. 30 ·
All proposed legislative rules, except emergency rules, are submitted to a joint committee of the
legislature. The joint committee, known as the Legislative Rule-Making Committee, reviews all
proposed legislative rules deemed appropriate.31 The Committee inay hold public hearings· on proposed
legislative rules but in any event is required to scrutinize the proposed rules for compliance with
statutory purpose. 32 _. ‘
Such review shall include, but not be limited to, a determination of:
(I) Whether the agency has exceeded the scope of its statutory authority in approving the
proposed legislative rule;
(2) Whether the proposed legislative rule is in ·conformity with the legislative intent of the
statute which the rule is intended to implement, extend, apply, interpret or make specific;
(3) Whether the proposed legislative rule conflicts with any other provision of this code or
with any other rule adopted by the same or a different agency;
(4) Whether the proposed legislative rule is necessary to fully accomplish the objectives ofthr
statute under which the proposed rule was promulgated;
( 5) Whether the proposed legislative rule is reasonable, especially as it affects the convenience
of the general public or of persons particularly affected by it;
( 6) Whether the proposed legislative rule could be made less comple~ . or more readily
understandable by the general public; and
(7) Whether the proposed legislative. rule was promulgated in compliance with the requirements of
this article and with any requirements imposed by any other provision of this code. 33
The Committee must recommend to the legislature that·the agency be authorized to promulgate the
rule or part of the rule before the rule may be finalized; The Committee may also recommend that
amendments be made to the legislative rule or that the rule be withdrawn. 34
If an authorized agency fmds that an emergency exists, the agency may, without a hearing,
promulgate emergency rules. The emergency rules must be filed in the.State Register before becoming
.effective. The Legislative Rule-Making Review Committee shall receive copies of the text of the
emergency rules; Such rules are subject to de novo review by “any court having original jurisdiction of
an action challenging their validity. 35
Emergency rules are in effect for not more than 15 months and may expire earlier if they fail to meet
the statutory .requirements of W.Va. Code§ 29A-3~15. Any regulation of an agency governed by the
Administrative Procedures Act remains a nullity and, as such, provides no one with clear legal right to
judicial relief, until the statutory mechanisms set forth in the Act for its promulgation are complied
~·~ .·. .
All parties must be provided with an opportunity for a hearing in contested cases. A contested case
is defmed as a: ·
proceeding before an agency in which the legal rights, duties, interests or privileges of specific
parties are required by law or constitutional right to be detelmined after an agency hearing, but
does not include cases in ·which an agency issues· a license, permit or certificate after an
examination to test the knowledge or ability of the applicant where the controversy concerns
whether the examination was fair or whether the applicant passed the examination and does not
include rule making. 37
Written notice must be provided at least ten days before a hearing in a contested case may occur.
The written notice “shall contain the date, time and place of the hearing and a short and plain statement
of the matters asserted.” 3 8 –
/ The hearings permit parties to “present evidence and argument with respect to the matters and issues
involved . . . . All of the testimony and evidence at any such hearing shall be reported by stenographic
notes and characters or by mechanical means. All rulings on the advisability of testimony and evidence
shall also be reported.” 3 9
The_ agency is required to “prepare an official record, which shall include reported testimony and
exhibits in each contested case, and all agency staff memoranda and data used in consideration of the
case …. ” Th~ agency is not, however required to transcribe the testimony unless there is a rehearing or –
judicial review. 40 Each agency adopts rules of procedures for hearings in contested cases. 41
Provi<Jed that it is statutorily authorized, each agency has the power to issue subpoenas or subpoenas
duces tecum. Any agency that is granted power to seek a subpoena by statute must exercise that power
strictly in conformity with the authorizing statute. 42 –
An ·administrative agency having authority to issue subpoenas duces tecum may seek enforcement of
such a subpoena in the circuit court; ·Enforcement may -be sought provided that the inquiry is within the
scope of authority of the agency, the demand is not too indefinite and the information sought is
reasonably relevant to the authorized inquiry. 43
—- —— Service of a subpoena must occur “at least five days before the return date thereof, either by personal
_krvice- made by any person over eighteen years of age or by registered or certified mail.” Service by
registered or certified mail is proved by a return receipt signed by the person to whom the subpoena or
the- subpoena duces-tecum is directed. The agency will- issue the ·subpoenas and subpoenas duces tecum,
but proper service is the responsibility of the parties. Requests for subpoenas and subpoenas duces
tecum must be written and include a statement whereby the requesting parties agree to pay any related
fees. 44 – – · –
W.Va. Code § 29A-5-1(d) provides for imparti~ hearings in contested c3;ses. This section further
empo~ers’ the agency, any agency member or any hearing examiner to:
( 1) Administer oaths and affirmations, (2) rule upon offers of proof and receive relevant
evidence, .(3) regulate the course of the hearing, (4) hold conferences for the settlement or
simplification of the issues by consent of the parties, ( 5) dispose of procedural requests or
similar matters,- and (6) take any other action authorized by a rule adopted by the agency. 45
The rules of evidence apply in hearings. 46 However, the informal nature of administrative hearings
may require, in certain circumstances, relaxation of evidentiary rules. 47 Evidence, including papers,
records, agency staff memoranda and documents in the possession of the agency shall be offered and
made a part of the record in the case. 48 –
All parties have the right to cross-examine testifying witnesses. Each party may submit rebuttal –,
evidence.49 The st~tute permits agencies to “take notice of judicially cognizable facts.” Notice of sue.
action will be provided to the parties by the agency. 50 Errors or omissions in the transcript of the
proceedings may also be resolved at a hearing upon a written motion to the agency. 51
Final orders or decisions of the agency must be in writing and include findings of fact and
conclusions of law. 52 Simple recitation of fmdings of fact in bare statutory language will not suffice.
53 In reviewing the record, the Supreme CoUrt of Appeals will not be bound to accord weight to
assertions by administrative agencies which have no foundati~n in the record before the court . 54
A party may propose fmdings of fact and conclusions of law, as well as exceptions to proposed
fmdings of fact and conclusions of law. The agency must rule on any party’s proposed fmdings in a
contested case. Such ruling will be disturbed by the courts only upon a showing that the agency abused
its discretion. Although the agency does not need to extensively discuss each proposed fmding, rulings
must be sufficiently clear to assure the reviewing court that all proposed fmdings have been considered
and dealt with and have not been overlooked or concealed. 55 Copies of the documents must be served
upon each party and his attorney of record, if any, in person or by registered or certified mail. 56
All fmal orders or decisions are subject to judicial review. 57 The review process is initiated by. __ .
filing a petition in the Circuit·Court of Kanawha County or in th~ circuit court of the county where th.· ·
petitioner resides. The agency, as well as all other parties of record,· must be served with a copy of the
petition. The appeal may be based on questions of law or questions of fact or both. 58
Filing an appeal will not stay enforcement of the agency order or decision. Furthermore, delay in the
disposition or decision of the case· will not invalidate the order or judgment of an administrative body.
-59 The agency may stay enforcement, and the appellant, after filing the petition, may apply to the
circuit court for a stay. 60 Upon th~ filing of a petition for appeal and within fifteen days of receipt of
the petition, the agency shall transmit to such circuit court the original or· a certified copy of the entire
record of the proceeding under review, including a transcript of all testimony and all papers, motions.
documents, evidence and records as were before the agency, all agency staff memoranda submitted in
connection with the case, and a statement of matters officially noted; but, by stipulation of all parties to
the review proceeding, the record may be shortened. The appellant must provide security for appellate
costs. If the court fmds that a party has unreasonably refused to stipulate to limit the record, it may tax
the party. 61 · ·
The court or judge will assign a hearing date for the appeal to be heard. Such date may not be sooner
than ten days after the petition is filed. 62 Appeals taken on questions of law, fact or both shall be heard
upon assignments of error filed in the cause or set out in the brief of the appellant. Errors not argued by
brief may be disregarded, but the court may consider and decide errors which are not assigned or
argued. 63 —
/ Without a jury, the reviewing court shall review the record and may hear oral arguments and require
written briefs. 64 The Court
may affirm the order or decision of the agency or remand the case for further proceedings. It
shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the
petitioner or petitioners have been prejudiced because the administrative fmdings, inferences,
conclusions, decision or order are:
(I) In violation of constitutional or statutory provisions; or
(2) In excess of the statutorY authority or jurisdiction of the agency; or
(3) Made upon unlawful procedures; or
( 4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole
record; or .
(6) Arbitrary’ or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion. 65
The right to appeal the final judgment of.the circuit court exists for any party adversely affected.
Review may be sought “by appeal to the supreme court of appeals· of .this state . . . .” 66 The statute
-u-ants jurisdiction to the court “to hear and entertain such appeals uponapplication made therefor in the
.”1anner and within the time provided by law for civil appeals generally. 67
The scope of judicial review is narrow. The function of the West Virginia Supreme Court of
Appeals, as the reviewing court, is to review the record and, from the record, determine if the evidence
presented supports the fmdings of the agency. The Supreme Court of Appeals will then determine
whether the circuit court’s conclusions follow froin the agency’s findings. If, however, the record of the
proceedirigs below does not reveal those facts which were determinative· of the ruling or the logic
· behind the ruling, the Supreme Court of Appeals is powerless to review the agency’s action. 68
· Although the results may appear arbitrary and capricious, the standard of review of agency decisions
requires a searching and careful inquiry into the facts. The ultimate scope of review of agency deCisions
is narrow, and the reviewing court is not empowered to substitute its judgment for that of the agency. 69
Generally, judicial review of action of an agency must await issuance of a fmal administrative order
enforceable against a person or class of persons. Until an administrative decision has been formalized
and its effect felt by the challenging party, judicial review is premature. 70
There is a further presumption of the validity of the rules duly noticed and promulgated by an
administrative agency pursuant to a specific statutory delegation of power. Such a presumption is
rebuttable only upon a showing that the challenged regulation is an unreasonable exercise of the
delegated power, i.e., inconsistent with the statute. 71
The agency’s determination of matters within. its area of expertise is entitled to substantial weight
The reviewing court, however, needs to make searching and careful inquiry into the facts. 72 Where tl.
agency is clearly wrong, the court need not defer to the agency’s fmding of fact. 73
Upon judicial review of a contested case, the circuit court shall reverse, vacate or modify the order
or decision of the agency if substantial rights of the petitioner or petitioners have been prejudiced. Such
prejudice may occur because of administrative fmdings, inferences, conclusions, decisions or. orders
which are in yiolation of constitutional or statutory provisions; which are in excess of statutory au,thority
or jurisdiction of the agency; . which are made upon unlawful procedures; which are affected by other
error of law; which are clearly wrong in view of the reliable probative and substantial evidence on the
whole record; or which are. arbitrary or capricious or characterized by abuse of discretion or a clearly
unwarranted exercise of discretion. 74
There is a general rule that where an administrative remedy is provided by statute or by rules and
regulations having the force and effect of law, relief must be sought from the administrative body. Such
remedy must be exhausted before the courts will act. The exhaustion of administrative remedies applies
alike to relief at law and relief in equity. 75 · ·
This doctrine is inapplicable; however, where resort to available procedures. would be an exercise in
futility. 76 Other exceptions to the doctrine include Jack of agency jurisdiction or constitutionality of
underlying agency statute. 77
The Freedom.of Information Act is based on the philosophy that the government serves the people.
Unless statutorily provided otherwise, the public policy of West Virginia is that all persons are: ·
entitled. to full and complete information rega.J:’ding the affairs of goveriunent and the official acts.
of those who represent them as public officials and employees. The people, in delegating
authority, do not give their public servants the right to decide what is good for the people to
know and what is.not good for them to know. The people insist on remaining informed so· that
they may retain control over the instruments of government they have created …. 78
Disclosure provisions of the Freedom of Information Act are to be construed liberally; and the
exemptions to the Act are to be strictly construed. 79 .. ·
A person 80 may inspect or copy any public record 81 by directing such request to the custodian 82
of such record. 83 The custodian is required to “furnish proper and reasonable opportunities for
insp_ection and examination of the records in his office and reasonable facilities for making memoranda
or abstracts therefrom, during the. usual business hours, to all persons having occasion to make
examination of them.” 84 The custodian may, however, make reasonable rules and regulations -.
~ecessary for the protection of the records and to prevent interference with the regular discharge of his
-duties. 85
Such requests must state with reasonable specificity the infonnation sought. 86 Upon receipt of a
request, the custodian must either furnish the requested infonnation 87; advise the person making the
request of the time and place at which he may inspect and copy the materials 88; or give the requesting
person, in writing,_ a denial which states the reasons why the request was denied, and indicating that the
responsibility of the custodian of any public records or public body to produce the requested records or
documents is at an end, and which shall afford the person requesting them the opportunity to institute
proceedings for injunctive or declaratory relief in the circuit court in the county where the· public record
is kept. 89
The statute does identify categories of infonnation which are exempt from disclosure .. The primary
purpose of the privacy exemption to the Act is to protect individuals from the injury and embarrassment
that can result from unnecessary disclosure of personal information. 90 A court must weigh or balance
the individual’s right of privacy against the public’s right to know. 91 The party claiming exemption
from the general disclosure requirement under the Act has the burden of showing express applicability
of such exemption to the material requested. 92
Included in the exemption is infonnation “of a personal nature such as that kept in a personal,
-nedical.or similar· file, if the public ·disclosure thereof would constitute ~ unreasonable iri.vasion of
.. ~’rivacy, ·unless the public interest, by. clear and convincing evidence, requires disclosure in the
particular. instance.” 93 Also excluded is infonnation used to administer licensing, employment or
academic exams 94; trade secrets 95; law enforcement records which deal with detection and
investigation of crime 96; statutorily exempted information 97; infonnation which describes the
location of undeveloped historic, prehistoric, archaeological; paleontological and battlefield sites or gifts
.. in ·which usage is restricted ·98; financial information prepared by .an agency which ·regulates· or
supervises fmancial institutions 99; and internal memoranda or letters prepared or received by a public .
body. 100
A public body is defmed as:
every state officer, agency, department, including the executive, legislative and judicial
departments, division, bmeau, board and commission; every county and city governing
body, school district, special district, municipal corporation, and any board, department,
commission, council or agency thereof; and any other body which is created by state or
local authority or which is primarily funded by the state or local authority. 101
Denial of the right to inspect a public body’s record allows an individual to seek “injunctive or
declaratory relief in the circuit court in the county where the public record is kept.” Further, the court
has the jurisdiction to enjoin the custodian or public body from withholding records and to order the
··- :oduction of any records improperly withheld from the person seeking disclosure. 102
The court shall determine the matter de novo. and the burden is on the public body to sustain i
action. In deciding whether public disclosure of information of a personal nature generally exempt from
disclosure under the Freedom of Information Act would constitute unreasonable invasion of privacy, the
Supreme Court of Appeals looks to whether disclosure would result in a substantial invasion of privacy
and, if so, how serious the invasion would be. 103
Additionally, the court considers the extent or value of the public interest, the purpose or objective
of the individu~ seeking disclosure, whether the information is available from other sources, whether
the infomiation was given with the expectation of confidentiality, and whether it is possible to fashion a
release so as to limit the invasion of individual privacy. 104
If an adequate source of information is available, records will not be released even in cases where
the individual fails to present clear and convincing evidence that legitimate reasons exist which would
overcome the Act’s exemption provisions. 105 The court, on its own motion, may view the documents
in controversy in camera before reaching a decision. 106
A custodian of the records may be found in contempt of court for noncompliance. 107 Additionally;
if found to have willfully violated the provisions of Article 29B, a· custodian of public records “shall be
guilty. of a misdemeanor,.· and, upon conviction thereof, shall be fined not les~ than .one hundred dollars
nor more than five hundred dollars, or be imprisoned in the county jail for not more than ten days, or, in __ _
the discretion of the court, by both such fme and imprisonment.” 108 /
There are several sources of information for Administrative Law. Alfred S. Neeley, IV’s book,
Administrative Law in West Virginia provides analysis of cases as.well as an extensive listing of cases
in Administrative Law up to the early 1980s. Michie’s Jurisprudence For Virginia and West Viiginia
also provides an overview in the Administrative Law section. Cases rel~vant to Administrative Law can
be· found in West’s Virginia and West Virginia Digest under Administrative Law. Cases relevant to
freedom of information issues can be found in the section entitled “RECORDS”.
I Bernard Schwartz, Administrative Law (Little, Brown & Company, 2nd Ed. 1984), p.2.
2 The APA was first discussed by the Supreme Court of Appeals in State ex rei. Burchette v.
Taylor, 150 W. Va. 702, 149 S.E.2d 234 (1966). .
3 W.Va. Code§ 29A-1-2(a).
4 .See e.g. Workers’ Compensation, Department of Employment Security, Public Service
Commission, Agriculture, and Board of Education, Human Rights Commission. See generally W. Va.
Code§§ 29A-1-3, 29A-5-5.
5 Southwestern Community Action Council. Inc .. v. City of Huntington Human Relations Comm,
179 W.Va. 573, 371 S.E.2d 70 (1988); Lipscomb v. Tucker County Commission, 197 W.Va. 84, 475
S.E.2d 84 (1996).
6 See generally Schwartz at § 1. 1.
7 Rowe v. W. Va Dept. of Corrections, ·170 W. Va. 230, 292 S.E.2d 650 (1982}
8 State v. Huber, 129 W.Va. 19~, 40 S.E.2d 11 (1946); Wiseman v. Calvert, 134 W.Va. 303, 59
S.E.2d 445 (1950). See W.Va. Const., ·art. V, § 1 (1872). Halltown Paperboard Co. v. C. L. Robinson
Corp., 150 W. Va. 624, 148 S.E.2d 721 (1966). In re Tax Assessments Against Southern Land Co., 143
W. Va. 152, 100 S.E.2d 555 (1957), overruled on another point; In re Assessment of Kanawha Valley
Bank, 144 W.Va. 346, 109 S.E.2d 649 (1959).
9 United Hosp. Ce11ter. Inc. v. Richardson, 757 F.2d 1445 (4th Cir. 1985).
10 C & P Telephone Co. ofW. Va. v. Public Service Comm. ofW. Va., 171 W.Va. 708, 301
S.E.2d 798 (1983).
11 State Human Rights Commission v. Pauley, 158 W.Va. 495, 212 S.E.2d 77 (1975).
12 Walter v. Ritchie, 156 W. Va. 98, 191 S.E.2d 275 (1972); Mountaineer:Disposal Serv .. Inc. v.
Dyer, 156 W. Va. 766, 197 S.E.2d 111 (1973); W. Va. Public Employees Ins. Bd. v. Blue Cross Hosp.
Service. Inc., 174 W.Va. 605, 328 S.E.2d 356 (1985), appeal after remand, 180 W. Va; 177, 375 S.E.2d
809~ See also Colvin ,infra, and Pauley, supr~o for the proposition that an agency has incidental powers
as are reasonably_ and necessarily implied in the full and proper exercise of the ·powers which have been
expressly conferred.
13 Colvin v. State Workmen’s Compensation Comriir., 154 W. Va. 280, 175 S.E.2d 186 (1970).
14 State ex rei. Burchette v. Taylor, 150 W. Va. 703, 149 S.E.2d 234 (1966). See also Cuny·
State Human Rights Commission, 166 W.Va. 163, 273 S.E.2d 77 (1980).
15 Walter v. Ritchie, 156 W.Va. 98, 191 S.E.2d 275 (1972).
16 Southwestern Community Action Council. Inc. v. Community Services Administration, 462 F.
Supp. 289 (S.D. W. Va. 1978). . .
17 W.Va. Code§ 29A-1-20).
18 W.Va. Code§ 29A-1-2(i).
19 Tulley v. State Farm Mutual Auto. Ins. Co., 345 F. Supp. 1123 (S.D. W. Va. 1972).
20 Ney v~ State Workmen’s Compensation Comm’r., 171 W. Va. 13, 297 S.E.2d 212 (1982);
Rowe v. W. Va. Dept. of Corrections, 170 W. Va. 230, 292 S.E.2d 650 (1982); Anderson & Anderson
Contractors. Inc. v. Latimer, 162 W.Va. 803, 257 S.E.2d 878(1979).
21 W.Va. Code§ 29A-l-2(c).
22 W.Va. Code§ 29A-l-2(d).
23 Id.
24 W.Va. Code§ 29A-1-2(g).
25 W.Va. Co4e § 29A-3-4(a).
26 W.Va. Co’de § 29A-3-7.
27 West Virginia Citizens Action Group v. Public Service Comm. of West Virgini!b 175 W.Va.
39, 330 S.E.2d 849 (1985).
28 W.Va. Code§ 29A-3-5.
29 W.Va. Code§ 29A-3-6.
30 Id.
31 W.Va. Code§ 29A-3-10(a).
. _ _../
32 The committee does not have the authority to veto rules and regulations otherwise
J’alidly promulgated by administrative agencies pursuant to the legislative delegation of
rulemaking power. Such action would violate the separation of powers doctrine embodied in
the Constitution. State ex rei. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).
33 W.Va. Code§ 29A-3-1 l(b).
34 W.Va. Code§ 29A~3-1 I (c).
35 W.Va. Code§ 29A-3-15(a).
36 W.Va. Code §§ 29A-3-1, et seq.; Wheeling Barber College v. Roush, 174 W. Va. 43, 321
S.E.2d 694 (W. Va. 1984).
37 W.Va. Code§ 29A-1-2(b).
38 W.Va. Code§ 29A-5-1(a). See also, Pauley v. Board ofEduc. of Mingo County, 179 W.Va.
152, 365 S.E.2d 816 (1988).
42 W. Va. Code §29A-5-1(b). _Huntington Human Relations Comm ex rei. James v. Realco. Inc.,
175 W.Va. 24, 330 S.E.2d 682 (1985). · …
43 E. I. duPont de Nemours& Co. v. Firiklea, 442 F. Supp. 821 (S.D. W.Va. 1977).
44 W.Va. Code§ 29A.;.-5-1(b).
45 W.Va. Code§ 29A-5-I(d).
46 W.Va. Code § 29A.,;5-2(a).
47 W. Va. Code §29A-5-2(a). Johnson v. State Dept. of Motor Vehicles, 173 W. Va. 565, 318
S.E.2d 616 (1984). See also Rociliano v. Fayette County Bd. ofEduc., 176 W.Va. 700, 347 S.E.2d 220
(1987) (evidence of teacher’s general reputation in community, based on hearsay evidence, may be
admissible as exception to hearsay rule in proceeding before school board where character of teacher
becomes crucial issue in case).
48 W.Va. Code§ 29A-5-2(b).
49 W.Va. Code§ 25?A-5~2(c).
50 W.Va. Code§ 29A-5-2(d).
51 W.Va. Code§ 29A-5-2(e).
52 W. Va. Code §29A-5•3. Citizens Bank of Weirton v. West Virginia Bd. of Banking and.
Financial Institutions; 160 W.Va. 220, 233 S.E.2d 719 (1977}. ·
53 W. Va. Code §29A-5-3. St. Mazy’s Hosp. v. State Health Planning and Development Agency,
178 W. Va. 792, 364 S.E.2d 805 (1987). .
54 Robertson v. Truby, .170 W.Va. 62, 289 S.E.2d 736 (1982). See also Workman v. Workmen’s
Compensation Commr., 160 W. Va. 656, 236 S.E.2d 236 (1977). ·
55 W.Va. Code§ 29A-5-3. St. Mazy’s Hosp. v. State Health Plannfug and Development Agency,
178 W.Va. 792, 364 S.E.2d 805 (1987). . .·
56 W.Va. Code§ 29A-5-3.
57 W.Va~ Code§ 29A-5-4(a).
58 W.Va. Code§ 29A-5-4(b).
59 W. Va. Code §29A-5-4(c). Johnson v. State Dept. of Motor Vehicles, 173 W. Va. 565, 318
S.E.2d 616 (1984) (ifthe decision is unduly delayed, a proceeding in mandamus may be instituted to
compel a decision, but not how to decide it). ·
60 W.Va. Code§ 29A-5-4(c).
61 W.Va. Code§ 29A-5-4(d).
62 W.Va. Code§ 29A-5-4(e).
63 ld. However, an administrative agency appeal is not subject to local rule governing appellate
procedure to circuit court and, therefore, failure to file note of argument under that rule did not warrant
dismissal. Kanawha County Local Court Rule 19; W.ya. Code§§ 22A-1A-20, 29A-1-1, et seq.,29A-5-
4, 29A-5-4(b). Coffman v. U.S. Steel Min. Co .. Inc., 178 W.Va. 673, 363 S.E.2d 750 (1987).
64 W.Va. Code§ 29A-5-4 (f).
65 W.Va. Code §29A-5-4(g).
66 W.Va. Code §§29A-5-4, 29A-6-1.
67W. Va. Code §29A-6-1.
68 Harrison v. Ginsberg,l69 W.Va._ 162, 286 S.E.2d 276 {1982).
70 Consolidated Gas Sunnly Cotp. v. Federal Energy Regulatozy Commission. 611 F.2d 951 (4th
Cir. 1975). · ·
_ 71 U.S. v. Eureka Pipeline Co .. 401 F. Supp. 934 (N.D. W.Va. 1975).
72 Princeton Community Hosp. v. State Health Planning and Development Agency, ·174 W. Va .
. 558, 328 S.E.2d 164 (1985).
73 Cuny v. Gatson, 180 W. Va. 272, 376 S.E.2d 166 (1988) .
. 74 W.Va. Code§ 29A-5-4. St. Mary’s Hosp. v. State Health Planning and Development Agency,
178 W. Va. 792, 364 S.E.2d 805 ( 1987). .
75 Bank of Wheeling v. Morris Plan Bank& Trust Co., 155 W.Va. 24~, 183 S:E.2d 692 (1971).
See also St. Francis Hosp. v. Bower, 802 F .2d 697 (4th Cir. 1986), for the proposition that federal courts
· will not decide the merits of an administrative case until the plaintiff has exhausted all administrative
76 State ex rei. ·Bd. of Educ. of Kanawha County v. Casey, 176 W. Va. 733, 349 S.E.2d 436
77 State ex rei. Arnold v. Egnor, 166 W. Va. 411, 275 S.E.2d 15 (1981).
78 W.Va. Code§ 29B-1-1. ‘. ;
79 Queen v. ·West Virginia Hosps .. Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987); Veltri v.
Charleston- Urban Renewal Authority, 178 W.Va. 669, 363 S.E.2d 746 (1987); Hechler v. Casey, 175
W.Va. 434, 333 S.E.2d 799 (1985).
80 A person is statutorily defmed as “any natural person, corporation, partnership, fmn or
association.” W.Va. Code§ 29B-1-2(2). ·
81 Public record is statutorily defmed to include “any writing containing ~ormation relating
the conduct of the public’s business, prepared, owned and retained by a public body.” W.Va. Code s
82 Custodian is the “elected or appointed official charged with administering a public body.”
W.Va. Code § 29B-1-2(i).
83 W.Va. Code §29B-1-3(1) &.(2).
84 W.Va. Code§ 29B-1-3(3); Richardson v. Town of Kimball, 176 W.Va. 24, 340 S.E.2d 582
85 Id.
86 W.Va. Code § 29B-1-3(4).
87 W.Va. Code§ 29B-1-3(4)(a).
88 W.Va. Code§ 29B-1-3(4)(b).
89 W.Va. Code§ 29B-1-3(4)(c).
90 Hechler v. Casey, 175 W.Va. 434, 333 S.E.2d 799 (1985).
91 Id.; Robinson v. Merritt, 180 W. Va. 26, 375 S.E.2d 204 (1988); Child Protection Group v ..
Cline, 177 W.Va. 29, 350 S.E.2d 541(1986). .
92 Queen v. West Virginiil Hosps.,\ Inc., 179 W. Va. 95, 365 S.E.2d 375 (1987).
93 W. Va. Code § .. 29B-1-4(2). An mdividual, however, is not prohibited by the Act “from
inspecting or copying his own personal, medical or similar file.” Id. Robinson v. Merritt, ·180 W.Va.
26, 375 S.E.2d 204 (1988).
i 94 W.Va. Code§ 29B-1-4(3) .
95 W.Va. Code§ 29B-1-4(1).
96 W.Va. Code§ 29B-1-4(4).
97 W.Va. Code§ 29B- 1 -4(5).
98 W.Va. Code§ 29B- 1 -4(6).
99 W.Va. Code§ 29B- 1 -4(7).
100 W.Va. Code§ 29B- 1 -4(8).
101 W.Va. Code§ 29B-1-2(3).
102 W.Va. Code§ 29B-1-5{1)&(2); Sattler v. Holliday. 173 W. Va.471, 318 S.E.2d 50 (1984).
103 Daily Gazette Co .. Inc. v. Withrow, 177 W.Va. 110, 350 S.E.2d 738 (1986).
104 Robinsonv. Merritt, 180 W.Va. 26,375 S.E.2d 204 (1988).
105 Robinson v. Merritt, 180 W. Va: 26, 375 S.E.2d 204 (1988); Child Protection Group v. Cline,
177 W.Va. 29, 350 S.E.2d 541 (1986).
106 W.Va. Code§ 2~B-1-5{2).
107 Id.
108 W.Va. Code§ 29B-1-6.
. -·