The Board of Examiners for Registered Professional Nurses repeatedly continued hearings without written agreements between the complainants and the Board to extend the time for a final ruling.
How later courts described this case
- The Board of Examiners for Registered Professional Nurses repeatedly continued hearings without written agreements between the complainants and the Board to extend the time for a final ruling.
- “‘The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction.’ Syl., State ex rel. Vineyard v. O’Brien, 100 W. Va. 163, 130 S.E. 111 (1925).”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2024 Term
__________________ May 24, 2024
released at 3:00 p.m.
C. CASEY FORBES
No. 23-431 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
__________________
STATE OF WEST VIRGINIA EX REL. JOSE RAVELO, DDS
Petitioner,
v.
WEST VIRGINIA BOARD OF DENTISTRY,
Respondent.
____________________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT DENIED
____________________________________________________________
Submitted: February 7, 2024
Filed: May 24, 2024
Edward C. Martin, Esq. Patrick Morrisey, Esq.
Flaherty Sensabaugh Bonasso PLLC Attorney General
Charleston, West Virginia Lindsay S. See, Esq.
Solicitor General
Justin C. Withrow, Esq. Joanne M. Vella, Esq.
Paul M. Flannery, Esq. Assistant Attorney General
Flannery Georgalis LLC Charleston, West Virginia
Cleveland, Ohio Counsel for Respondent
Counsel for Petitioner
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE WALKER, deeming herself disqualified, did not participate in the
decision of this case
JUDGE GREGORY L. HOWARD, JR. sitting by temporary assignment.
JUSTICE BUNN concurs and reserves the right to file a concurring opinion.
JUSTICE WOOTON dissents and reserves the right to file a separate opinion.
JUDGE HOWARD dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “‘The writ of prohibition will issue only in clear cases where the
inferior tribunal is proceeding without, or in excess of, jurisdiction.’ Syl., State ex rel.
Vineyard v. O’Brien, 100 W. Va. 163, 130 S.E. 111 (1925).” Syl. Pt. 1, State ex rel.
Johnson v. Reed, 219 W. Va. 289, 633 S.E.2d 234 (2006).
2. “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.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va.
12, 483 S.E.2d 12 (1996).
i
3. “The primary rule of statutory construction is to ascertain and give
effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W. Va. 660, 76
S.E.2d 885 (1953).
4. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
5. An agreement to extend the period of time for an applicable regulatory
board to issue a final ruling on a complaint pursuant to West Virginia Code § 30-1-5(c) is
not barred by the fact that the applicable board is also the complainant.
ii
ARMSTEAD, C.J.:
Petitioner Jose Ravelo, DDS (hereinafter “Petitioner”), seeks a writ of
prohibition directing the West Virginia Board of Dentistry (hereinafter “the Board”) to
cease its current investigation of him and to prohibit the Board from taking any further
disciplinary action against him based upon his treatment of a patient in 2021. Petitioner
asserts that the Board violated the statutory time limitation for resolution of disciplinary
actions and violated his due process rights.
After careful consideration of the parties’ arguments, legal authorities, and
the appendix record, this Court finds that the Board complied with West Virginia Code §
30-1-5(c), which permits an extension of time for the Board to issue a final ruling. Because
the extended time period had not yet expired when Petitioner filed the instant petition, we
deny his request for a writ of prohibition.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner is a board-certified oral surgeon who currently practices at
Mountain State Oral & Facial Surgery. 1 On August 19, 2021, Petitioner performed a
surgical procedure on F.S., a seventy-four year old man who presented with an infection at
1
Petitioner has been licensed in West Virginia since 2018.
1
his jaw line. 2 Petitioner determined that a surgical procedure was the best solution to
remove the infection. Prior to performing the surgical procedure, Petitioner was aware that
F.S. was taking Plavix, a blood thinner designed to reduce the risk of heart attacks.
Petitioner did not direct F.S. to stop taking Plavix ahead of his upcoming surgery.
Petitioner performed surgery on F.S. at 8:00 a.m. on August 19, 2021, and after being kept
for evaluation, F.S. was discharged to return home. Later the same afternoon, Petitioner’s
office placed a post-operative call to F.S.’s home and was informed by F.S.’s wife that he
was not doing well. Thereafter, a video call occurred to better assess F.S.’s condition.
During the call, Petitioner noted swelling in the floor of F.S.’s mouth, and he asked F.S. to
return to the office. After F.S. returned to Petitioner’s office, Petitioner noted “swelling
and clotting on the floor of F.S.’s mouth.” After draining the area to reduce the swelling,
Petitioner recommended that F.S. go to the emergency room for evaluation.
F.S. was transported by ambulance to the Emergency Department at
Princeton Community Hospital where he was described as being in “significant acute
distress.” F.S. was admitted to the hospital where he remained for nine days. He was on
a ventilator for five of the nine days while he was hospitalized.
2
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R. App. P. 40(e).
2
A few weeks following F.S.’s surgery, Petitioner’s counsel sent a letter to the
Board informing it of the complication following F.S.’s surgery.3 West Virginia Code §
30-4-19(g)(18) authorizes the Board to take disciplinary action against a licensee,
certificate holder, or permittee who “[f]ail[s] to report to the board within 72 hours of
becoming aware of any life threatening occurrence, serious injury, or death of a patient
resulting from the licensee’s [] dental treatment.” Id. Although Petitioner self-reported
pursuant to West Virginia Code § 30-4-19(g)(18), he noted that he did not believe that
F.S.’s complication met the statutory requirements of “life threatening occurrence” or
“serious injury[,]” and that he self-reported out of an abundance of caution. Petitioner
informed the Board, among other things, that F.S. had a “bleeding complication and
hematoma requiring precautionary emergency room care.” Further, Petitioner indicated
that F.S. “remained in the hospital for a few days and was discharged in good condition.”
Following receipt of Petitioner’s self-report, the Board issued a subpoena for
F.S.’s medical records from Princeton Community Hospital. By letter dated February 14,
2022, Susan M. Combs, Executive Director of the Board, informed Petitioner that after
reviewing his records and F.S.’s records from Princeton Community Hospital, the
Complaint Committee of the Board “believes that violations of the standard of care in the
practice of dentistry may have occurred” and “recommended to the Board that a complaint
be filed in this matter.” Specifically, the Complaint Committee expressed concerns that
3
The letter was dated September 7, 2021.
3
Petitioner “did not consult [F.S.’s] physician, nor advise [F.S] to stop taking Plavix prior
to his surgery.” In addition, the Complaint Committee believed that Petitioner nicked an
artery during F.S.’s surgery, and because F.S. was still taking Plavix at a therapeutic level,
such action resulted in “bleeding and swelling that required a nine day hospital stay, in
which [F.S.] was on a ventilator for five of those days.”
By letter dated March 14, 2022, Petitioner responded to the complaint.
Petitioner attached an article from the American Journal of Medicine, which he maintains
“support[s] his decision to continue F.S.’s Plavix treatment.” By letter dated April 11,
2022, Petitioner forwarded a report from Caroline M. Webber, DDS, for the Complaint
Committee’s review and consideration. Petitioner asserts that Dr. Webber concluded in
her report that Petitioner did not violate the standard of care.
On July 12, 2022, the Board issued a subpoena to Petitioner seeking CT scans
taken between June 1, 2021, and October 31, 2021, related to F.S. On July 26, 2022, the
Board provided Petitioner with a status report concerning the complaint at issue in this
matter. At that time, the Board indicated that it was “still reviewing and considering the
matters alleged.” In addition, the Board indicated that, if it found probable cause regarding
the allegations in the complaint, it would issue a charging statement. The Board further
advised Petitioner in the July 26, 2022 status report that, if it did not find probable cause,
it would notify Petitioner by letter. In May 2023, Petitioner, through his counsel,
forwarded a letter to the Board asserting, among other things, that the Board had failed to
4
adhere to the time requirements set forth in West Virginia Code § 30-1-5(c) and that its
investigation was contrary to law. Petitioner also included a Freedom of Information Act
(hereinafter “FOIA”) request for, among other things, the Board’s investigatory file.
In July 2023, the Board responded to Petitioner’s FOIA request by providing
copies of F.S.’s medical records from Princeton Community Hospital, an expert report
from Michael B. Lee, DDS, and correspondence regarding an extension of time for the
Board to issue a final ruling in Petitioner’s matter.4 The extension was requested by John
E. Bogers, DDS, President of the Board to Susan M. Combs, Executive Director of the
Board, pursuant to West Virginia Code § 30-1-5(c), which permits the party filing a
complaint and the Board to “agree in writing to extend the time for the final ruling.” Id.
The extension extended the time for the Board to issue its final ruling from July 20, 2023,
to July 20, 2024.
On July 19, 2023, Petitioner filed the petition for a writ of prohibition that is
the subject of this action.5
4
These documents were included as part of the “second rolling production of
responsive FOIA documents.”
5
On November 15, 2023, this Court issued a rule to show cause directing the Board
to show cause why a writ of prohibition should not be awarded as prayed for by Petitioner.
Pursuant to Rule 16(j) of the West Virginia Rules of Appellate Procedure, “[u]nless
otherwise provided, the issuance of a rule to show cause in prohibition stays all further
proceedings in the underlying action for which an award of a writ of prohibition is sought.”
5
II. STANDARD OF REVIEW
Petitioner invokes this Court’s original jurisdiction in prohibition asserting
that the Board exceeded its legitimate powers by failing to reach a resolution within the
statutory maximum time to resolve the allegations against him and by launching its own
investigation without sufficient cause. See Syl. Pt. 1, State ex rel. Johnson v. Reed, 219 W.
Va. 289, 633 S.E.2d 234 (2006) (“‘The writ of prohibition will issue only in clear cases
where the inferior tribunal is proceeding without, or in excess of, jurisdiction.’ Syl., State
ex rel. Vineyard v. O’Brien, 100 W. Va. 163, 130 S.E. 111 (1925).”). Because Petitioner
asserts that the Board “exceeded the statutory limits on its power and jurisdiction,” we are
guided by the following:
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.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
6
With these standards in mind, we will now consider whether a writ of
prohibition is warranted in this case.
III. ANALYSIS
Petitioner seeks a writ of prohibition, and because Hoover requires that “the
existence of clear error as a matter of law, should be given substantial weight,” we begin
by assessing Petitioner’s argument that the Board erred as a matter of law.
A. TIME REQUIREMENTS SET FORTH IN WEST VIRGINIA CODE § 30-1-
5(C)
Petitioner asserts that the Board’s investigation exceeded the statutory time
limits imposed by West Virginia Code § 30-1-5(c). In examining this statute, we are
mindful of our rules of statutory construction. “The primary rule of statutory construction
is to ascertain and give effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb,
138 W. Va. 660, 76 S.E.2d 885 (1953). “A statutory provision which is clear and
unambiguous and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877,
65 S.E.2d 488 (1951). In other words, “[w]here the language of a statutory provision is
plain, its terms should be applied as written and not construed.” DeVane v. Kennedy, 205
W. Va. 519, 529, 519 S.E.2d 622, 632 (1999).
7
With these rules in mind, we examine West Virginia Code § 30-1-5(c), which
governs matters before administrative boards, including the Board of Dentistry, and which
provides:
Every board referred to in this chapter shall investigate
and resolve complaints which it receives and shall, within six
months of the complaint being filed, send a status report to the
party filing the complaint and the Respondent by certified mail
with a signed return receipt and within one year of the status
report’s return receipt date issue a final ruling, unless the party
filing the complaint and the board agree in writing to extend
the time for the final ruling. The time period for final ruling
shall be tolled for any delay requested or caused by the
respondent or by counsel for the respondent and in no event
shall a complaint proceeding be dismissed for exceeding the
time standards in this section when such overage is the result
of procedural delay or obstructive action by the accused or his
or her counsel or agents.
Prior to 2005, this statute did not contain any specific deadlines for resolution of
complaints. It provided “merely that ‘[e]very board referred to in this chapter has a duty
to investigate and resolve complaints which it receives and shall do so in a timely manner.’
W. Va. Code § 30-1-5(b) (1996).” State ex rel. Miles v. W. Va. Board of Registered
Professional Nurses, 236 W. Va. 100, 105, 777 S.E.2d 669, 674 (2015). In 2005, the time
requirements contained in subsection (c) were added.
8
In reviewing the time requirements imposed by West Virginia Code § 30-1-
5(c), we must first identify when the operative complaint was filed.6 Initially, we conclude
that Petitioner’s self-report, that occurred in September of 2021, did not constitute the
complaint in this matter. Petitioner’s self-report was “made out of an abundance of
caution.” Further, it specifically indicated that Petitioner “does not believe that a
reasonable interpretation of [F.S.’s] complication would meet the statutory requirements
of ‘life threatening occurrence’, nor ‘serious injury’.” We agree with Petitioner that
dentists may alert the Board of their own misconduct. However, in this case, Petitioner did
not admit to any misconduct and his report merely advised the Board of the basis for a
potential complaint. Therefore, we do not find the September 2021 self-report to be a
complaint. Instead, Petitioner’s self-report began the process that eventually led to the
filing of a complaint.
By letter dated February 14, 2022, the Board informed Petitioner that the
Complaint Committee recommended that a complaint be filed against him.7 The Complaint
Committee expressed concern that Petitioner had not consulted with F.S.’s physician nor
had he advised F.S. to stop taking Plavix prior to his surgery. The Complaint Committee
also believed that Petitioner nicked an artery during F.S.’s dental surgery which, combined
6
Petitioner indicates that this Court need not decide whether his self-report is the
operative “complaint” because there is no scenario under which the Board can prevail on
the statutory time limits issue. As explained below, we disagree.
7
The February 14, 2022 correspondence referenced the case number that had been
assigned to the complaint: Case Number 2022-DB-0006D.
9
with F.S.’s continued use of Plavix, caused the bleeding and swelling that required a nine
day hospital stay. Petitioner was given thirty days to respond, which he did by letter dated
March 14, 2022. In his March 14, 2022 letter, Petitioner indicated that he was responding
to the “complaint” regarding his care of F.S., and he referenced Case No. 2022-DB-0006D.
For these reasons, we conclude that the Board’s correspondence dated February 14, 2022,
serves as the operative complaint in this matter. See W. Va. Code § 30-4-19(a) (“The
[B]oard may initiate a complaint . . . upon receipt of credible information[.]”). Having
determined that the complaint was filed on February 14, 2022, we proceed to examine
whether the Board complied with the required timeframes set forth in West Virginia Code
§ 30-1-5(c).
“The plain language of [West Virginia Code § 30-1-5(c)] requires the
issuance of an interim status report within six months” of the complaint being filed. Miles,
236 W. Va. at 106, 777 S.E.2d at 675. In this case, such status report would have been due
on or about August 14, 2022. The Board complied with this requirement by sending a
status report dated July 26, 2022. The status report states, in part, as follows:
The purpose of this letter is to provide you with a status
report concerning the complaint filed against you by the Board.
At this time, the Complaint Committee of the Board is still
reviewing and considering the matters alleged.
We will attempt to keep you informed and notify you as
to the Board’s decision regarding the complaint. Should the
Board find probable cause as to the allegations in the
complaint, the Board will issue a charging statement against
10
you. If no probable cause is found, the Board will notify you
by letter that no further action will be taken.
Petitioner argues that the Board’s status report is conclusory, offers “no
insight into what the Board has done, what additional steps it plans to take, or when it plans
to take them,” and therefore, does not constitute a valid status report. Petitioner maintains
that to constitute a proper status report, this report should have included the following types
of information: (1) information regarding what the Board had done so far as it relates to
documents that had been reviewed; (2) identification of concerns with Petitioner’s conduct;
and (3) an explanation regarding the next step in the case. Petitioner further asserts that,
without a valid status report, the Board’s time to investigate Petitioner’s treatment of F.S.
expired six months after the Board’s complaint, which would have been in August 2022.
Petitioner concedes that our Court has not addressed the precise information
that the Board must include in a status report required by West Virginia Code § 30-1-5(c).
Further, the plain language of the statute does not address the specific information that
must be included in status reports. West Virginia Code § 30-1-5(c) requires boards to “send
a status report to the party filing the complaint and the Respondent by certified mail with
a signed return receipt.” Id. Given the lack of case law directly addressing this issue,
Petitioner relies upon cases that discuss generally how boards should conduct
investigations and which reiterate the responsibility of boards to act diligently.
11
In Miles, this Court granted a writ of prohibition against the West Virginia
Board of Registered Professional Nurses because the nursing board failed (1) to resolve a
complaint within one year of its status report and (2) to acknowledge the need for an
extension of time until after the deadline for resolution had passed. The status report in
Miles, which simply stated that the matter was “under continued investigation and review
by the Board staff” was not dispositive, and this Court did not discuss any potential
deficiencies with the substance of that status report. Id. at 103, 777 S.E.2d at 672.8 Given
the wide range of professions and occupations governed by Chapter 30 of the West Virginia
Code, we decline to impose specific subjects that must be contained in the required status
report. Should the Legislature desire to codify any such requirements, it certainly may do
so in the future.
The status report in this matter was dated July 26, 2022. Petitioner argues
that the Board was required to issue its final ruling on or before July 26, 2023. However,
the “West Virginia Board of Dentistry Agreement to Extend Deadline for Final Ruling”
indicates that the Board was required to issue its final ruling in this matter on or before July
20, 2023. Although the parties differ as to which date in July 2023 the final ruling was
8
This Court noted that the status report was not sent via certified mail and that a
second status report was sent several months later.
12
required, they appear to agree that, absent an appropriate extension, such resolution was
required by July 2023.
Prior to both of the dates the parties believe apply, the Executive Director of
the Board and the President of the Board agreed to a one-year extension for the issuance of
the final ruling in this matter pursuant to West Virginia Code § 30-1-5(c), which permits
“the party filing the complaint and the board” to agree to an extension. Id. Petitioner
argues that the extension clause contained in West Virginia Code § 30-1-5(c) does not
apply in cases where the Board itself initiates a complaint. However, we identify no such
prohibition in our statute. There is no statutory restriction on the length of an extension,
and importantly, the statute does not exclude a board from availing itself of this particular
provision in cases in which a board initiates a complaint.9 Therefore, we hold that an
agreement to extend the period of time for an applicable regulatory board to issue a final
ruling on a complaint pursuant to West Virginia Code § 30-1-5(c) is not barred by the fact
that the applicable board is also the complainant. In the instant case, there has been only
one extension by agreement, which is authorized by West Virginia Code § 30-1-5(c).
Therefore, the time for final resolution of the complaint has not expired, and we, therefore,
9
We are mindful of Petitioner’s concerns that boards may attempt to take advantage
of this provision by extending the deadline for final resolution by an unreasonable period
of time. In such case, a licensee, certificate holder, or permittee may have a due process
claim. See infra. However, this was not the case here.
13
conclude that the Board has not violated the statutory time limits imposed upon disciplinary
actions.
B. INVESTIGATION
Petitioner next argues that the Board lacked an adequate basis for
investigating his treatment of F.S. and failed to abide by the statutory procedures for
launching such investigation. The Board is empowered “to issue subpoenas, to conduct
investigations and hire an investigator and to take testimony and other evidence concerning
any matter within its jurisdiction.” West Virginia Code § 30-1-5(b) (emphasis added).
Further, the Board is required to “investigate and resolve complaints which it receives[.]”
West Virginia Code § 30-1-5(c). Finally, the Board “may initiate a complaint … upon
receipt of credible information.” W. Va. Code § 30-4-19(a).
Petitioner maintains that his September 2021 self-report did not constitute
“credible information” supporting the Board’s “investigation.” However, the requirement
regarding “credible information” relates to the Board’s authority to initiate a complaint.
See W. Va. Code § 30-4-19(a) (“The board may initiate a complaint upon … receipt of
credible information[.]”) Petitioner maintains that even if his self-report constituted
credible information, the correct next step for the Board would have been to issue a
complaint against him, not to conduct an investigation.
As we noted above, the Board is authorized to conduct investigations. See
West Virginia Code § 30-1-5(b). If this Court were to agree with Petitioner’s position, the
14
Board would have been limited to two courses of action – it could have either accepted
Petitioner’s opinion that there was no “life threatening occurrence” or “serious injury” or
it would have been forced to file a complaint against Petitioner without assessing the
credibility of the information.
In the instant case, the Board properly conducted an initial investigation of
Dr. Ravelo’s treatment of F.S. in order to determine whether the information it received
was “credible” and thus warranted the filing of a complaint. By investigating, the Board
determined that F.S. had been hospitalized for nine days with five of those days on a
ventilator, not for a “few days” as Petitioner indicated in his self-report. In addition, the
investigation assisted the Complaint Committee in forming its belief that Dr. Ravelo had
nicked an artery during F.S.’s surgery which, combined with F.S.’s continuing use of
Plavix at a therapeutic level, caused bleeding and swelling that resulted in his nine-day
hospital stay. For these reasons, among others, the Complaint Committee disagreed with
Dr. Ravelo’s characterization contained in his self-report and instead deemed the incident
as a “life threatening occurrence” and “serious injury.”
Petitioner relies upon West Virginia Code 30-1-5(c), which requires the
Board to “investigate and resolve complaints.” Since the Board takes the position that
Petitioner’s self-report was not a complaint, Petitioner believes that the Board improperly
investigated his self-report by subpoenaing F.S.’s hospital records when there was not yet
an active complaint against him. Before this Court, Petitioner argues that this is “no mere
technical error.” However, in his self-report, Petitioner acknowledged that the Board
15
would conduct an investigation following receipt of his self-report. Specifically, the self-
report indicated that “Dr. Ravelo’s intention is to assist and cooperate with the Board’s
investigation into this incident in any way that he can, and he pledges complete
transparency in doing so.” We believe that Petitioner identified the proper next step
following the Board’s receipt of his self-report: an investigation. Moreover, West Virginia
Code § 30-4-19(a) permits the Board to initiate a complaint upon its receipt of “credible
information.” The requirement that the information be “credible” necessarily requires at
least an initial investigation of its veracity. Petitioner’s assertion that no investigation may
take place until after a formal complaint was filed is inconsistent with the language of the
statute. Accordingly, we are unpersuaded by Petitioner’s argument that the investigation
with which he agreed to cooperate with improper.
C. DUE PROCESS
Even though we conclude that the Board has not exceeded the statutory time
limits, we must now examine Petitioner’s assertion that the Board’s delay in resolving the
instant complaint violates his constitutional right to due process. Petitioner alleges a
violation of Article III, Section 17 of the West Virginia Constitution, which provides that
“[t]he courts of this State shall be open, and every person, for an injury done to him, in his
person, property or reputation, shall have remedy by due course of law; and justice shall
be administered without sale, denial or delay.” W. Va. Const. Art. III, § 17. “Due process
is succinctly stated in article III, § 10 of the West Virginia Constitution: ‘No person shall
16
be deprived of life, liberty, or property, without due process of law, and judgment of his
peers.’” SER Hoover v. Smith, 198 W. Va. 507, 511, 482 S.E.2d 124, 128 (1997).
In support of his due process argument, Petitioner relies upon cases involving
delays by the Office of Administrative Hearings in issuing drivers’ license-revocation
decisions. See Reed v. Staffelino, 239 W. Va. 538, 803 S.E.2d 508 (2017) and Frazier v.
Derechin, 246 W. Va. 36, 866 S.E.2d 101 (2021). The glaring difference between those
cases and the instant case is that there were “no time constraints imposed by rule or statute
governing the issuance of decisions by [the Office of Administrative Hearings].” Frazier
v. Derechin, Id. at 41, 866 S.E.2d at 106. Due process was implicated in Frazier because
it operated as an “outer limit” due to the absence of statutory time constraints. Id. By
contrast, in the instant case, the Legislature has imposed explicit time constraints for the
Board to resolve complaints and provides a statutory process to extend such deadlines. The
Board is not in violation of the statutory time limits imposed upon disciplinary actions.10
10
Despite not being in violation of the statutory time limits imposed upon
disciplinary actions, Petitioner has identified instances in which a board could potentially
violate a licensee’s due process rights even though it is not technically in violation of
statutory time limits. Petitioner asserts that if this Court denies his petition for a writ of
prohibition, the Board could request multiple extensions for years to come. Admittedly,
this Court has seen at least one instance in which a board has permitted a case to languish
well past the statutory time limits without obtaining an extension to issue a final ruling. See
State ex rel. Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d 118 (2013) (The Board of
Examiners for Registered Professional Nurses repeatedly continued hearings without
written agreements between the complainants and the Board to extend the time for a final
ruling.) We take this opportunity to caution the Board that, although it is not in violation
17
“The requirements of due process are not reducible to a static formula, but
rather are sensitive to the facts and circumstances of a given case.” Hutchison v. City of
Huntington, 198 W. Va. 139, 479 S.E.2d 649 n. 21 (1996). In the instant case, Petitioner
relies upon the Board’s average time to resolve a complaint and the statute’s time
constraints, which he describes as the Legislature’s “intent that all professional licensing
investigations be completed within eighteen months for both due process and public safety
reasons.” However, Petitioner again fails to acknowledge that the Legislature clearly
contemplated that some matters would not be resolved within eighteen months by tolling
the time period for a final ruling “for any delay requested or caused by” a respondent in a
complaint proceeding and by authorizing boards and complainants to “agree in writing to
extend the time for the final ruling.” W. Va. Code § 30-1-5(c).
As we have previously concluded, “the flexibility required by due process
doctrines and the range of variables that can affect fairness . . . preclude our imposing
specific time limits” in certain cases. Hutchison at 156, 479 S.E.2d at 666. We believe
that this is such a case, and we reject Petitioner’s argument that the Board through its
actions to date, has violated his constitutional right to due process.
D. REMAINING HOOVER FACTORS
of the statutory time limits, we see no reason why this matter should not be resolved within
the extension already granted, if not even sooner.
18
Lastly, Petitioner argues that the remaining four factors enunciated in Hoover
support the issuance of a writ of prohibition. We disagree. The first Hoover factor directs
this Court to examine whether Petitioner “has no other adequate means, such as direct
appeal, to obtain the desired relief.” Syl. Pt. 4, in part, Hoover, 199 W. Va. 12, 483 S.E.2d
12 (1996). Petitioner acknowledges that there is a statutory right to seek judicial review of
Board decisions. His impatience with the Board’s failure to act does not tip the weight of
this factor in his favor.
We are likewise not persuaded by Petitioner’s arguments in support of the
second factor, which directs this Court to examine “whether [Petitioner] will be damaged
or prejudiced in a way that is not correctable on appeal.” Id. Petitioner asserts that he has
been damaged because he will be forced to wait and use the “ordinary judicial review
procedure[,]” “continue to endure the cloud over his license and delay his business plans[,]”
and “be compelled to go through a contested hearing and perhaps appeal from a final
judgment.” These complaints generally describe the disciplinary process to which every
other licensee, certificate holder, and permittee of the Board is subject during a disciplinary
action. We refuse to conclude that Petitioner is prejudiced because he will have to proceed
through the Board’s disciplinary process. With respect to the fourth factor, Petitioner
concedes that he cannot point to a “long record of untimely Board actions,” and we,
therefore, conclude that this factor does not warrant the issuance of a writ in this case.
Finally, Petitioner generally asserts that his petition raises multiple issues of first
impression regarding “the application of West Virginia Code § 30-1-5(c) and constitutional
19
due process to cases in which a licensee files a self-report.” Because we have concluded
that the Board has not violated the statutory time limits imposed upon disciplinary actions
and that Petitioner’s constitutional right to due process has not been violated by the Board,
we reject Petitioner’s assertion that this matter raises multiple issues of first impression.11
IV. CONCLUSION
For the foregoing reasons, the writ of prohibition is denied and the stay is
lifted contemporaneously with the issuance of the Court’s mandate.
Writ denied.
11
Because Petitioner has not prevailed, we deny his request for the Board to pay his
reasonable attorney’s fees and costs.
20