SER Ten South Management v. Hon. Robert B. Wilson

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term FILED
_______________ June 19, 2013
released at 3:00 p.m.
No. 12-0678 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA, EX REL. TEN SOUTH

MANAGEMENT COMPANY LLC, D/B/A VISTA VIEW

Petitioner

HONORABLE ROBERT B. WILSON, ACTING CHIEF ADMINISTRATRATIVE

LAW JUDGE OF THE WEST VIRGINIA HUMAN RIGHTS COMMISSION and

MONICA ROBINSON,

Respondents

____________________________________________________________

PETITION FOR WRIT OF MANDAMUS

WRIT GRANTED AS MOULDED

____________________________________________________________

Submitted: January 8, 2013

Filed: June 19, 2013

Charles R. Bailey, Esq. Patrick Morrisey, Attorney General
David J. Mincer, Esq. J. Robert Leslie, Deputy Attorney General
Bailey & Wyant, PLLC Charleston, West Virginia
Charleston, West Virginia Counsel for the Respondents
Counsel for the Petitioner

CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.
SYLLABUS BY THE COURT

1. “A writ of mandamus will not issue unless three elements coexist—

(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of

respondent to do the thing which the petitioner seeks to compel; and (3) the absence of

another adequate remedy.” Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153

W.Va. 538, 170 S.E.2d 367 (1969).

2. “A ‘no probable cause’ determination by the West Virginia Human

Rights Commission is not an adjudication on the merits of a discrimination complaint

since the parties have not been afforded a public hearing in which to litigate the merits of

the facts and issues propounded in the complaint.” Syl. pt. 1, Jones v. Glenville State

College, 189 W. Va. 546, 433 S.E.2d 49 (1993).

3. An attorney who acts as a hearing officer for the West Virginia

Human Rights Commission for the purpose of an administrative review of a “no probable

cause” determination may not later represent the complaining party in proceedings before

the Commission on the claim.

i
Benjamin, Justice:

The petitioner, Ten South Management Company, LLC, d/b/a Vista View

(“Ten South”), seeks the issuance of a writ of mandamus to compel the respondent, the

Honorable Robert B. Wilson, Acting Chief Administrative Law Judge (“ALJ Wilson”) of

the West Virginia Human Rights Commission (“the Commission”), to issue an order

dismissing the case filed by the respondent, Monica Robinson (“Robinson”), before the

Commission. The petitioner alternatively seeks a written order, detailing findings upon

which the Commission based its determination to reverse its earlier decision to dismiss

Robinson’s claim, as well as a subpoena for all documents reviewed in the course of that

administrative review. Finally, Ten South seeks to compel the Commission to disqualify

the Assistant Attorney General now representing Robinson from further representation

because he acted as a review hearing officer when the Commission reconsidered its initial

dismissal of Robinson’s claims. For the reasons stated herein, we decline to issue the

writ insofar as it requests that Robinson’s claims be dismissed, and demands that the

Commission be required to state what facts upon which it reversed its earlier

determination. We further decline to order that a subpoena be issued to allow Ten South

access to any documents that were reviewed in the course of the administrative review.

We issue the writ to clarify that an attorney who acted as a review hearing officer for the

Commission when a claimant requested reconsideration of a “no probable cause” finding

may not later represent that claimant in proceedings before the Commission on the claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Ten South, operates an apartment complex in Charleston,

West Virginia. From August of 2009 to January 4, 2010, respondent Robinson was

employed by Ten South as a leasing agent. After a performance review in December of

2009, Robinson alleged she was demoted to the position of Recertification Clerk.

Robinson was terminated on January 4, 2010. On January 11, 2011, Robinson filed a

complaint with the Commission alleging that she was unlawfully discriminated against

by Ten South. Ten South denied Robinson’s charge of discrimination.

On June 9, 2011, Yodora P. Booth, Director of Operations for the

Commission, issued a finding that no probable cause (“NPC”) was found in Robinson’s

complaint and ordered that it be dismissed. Contained in the order were instructions on

how to request a reconsideration of the Commission’s initial determination of NPC, or a

“second chance” to pursue her claim before the Commission. The procedure detailed in

the order was as follows:

The West Virginia Human Rights act, as amended, provides
that you may request an Administrative Review of the No
Probable Cause determination. Such request shall be made
within ten (10) days of receipt of this letter. The request
for review must be in writing and must state specifically the
grounds relied on and may contain new evidence not
previously considered by the Commission. If your request is
favorably considered, you will be notified by correspondence
as to the details of the hearing. In which case, you have a
right to be represented by an Attorney, if you have one.
Requests which are not in compliance with the
aforementioned requirements will not be considered.

(Emphasis in original). The certificate of service indicated that the order was mailed to

Robinson at an address in St. Albans, Kanawha County, on June 10, 2011.

On June 24, 2011, Robinson appeared at the Commission’s office and filed

a two-page handwritten request for reconsideration of the NPC finding. In this request

she detailed additional allegations of discrimination against Vista View that were not

included in the original complaint.

The administrative review was scheduled for September 17, 2011. The

hearing was not held at the Commission’s office; it was held in the office of the Attorney

General’s Civil Rights Division. Assistant Attorney General Paul R. Sheridan conducted

this review hearing. The stated purpose of the hearing was “for the presentation of

objections to the NPC finding and the provision of any additional evidence.” Vista View

was given an opportunity to respond and did appear at this proceeding.

On October 19, 2011, the Commission reversed the earlier NPC finding,

and found that there was probable cause alleged in the complaint. In a letter signed by the

then-acting executive director of the Commission, Phyllis H. Carter, Robinson was

informed that her complaint would proceed to a hearing before an administrative law

judge. The letter further stated that pursuant to the Human Rights Act, W. Va. Code § 5

11-10 (1994), Robinson would be represented by the Attorney General’s office if she did

not have private counsel.

On October 13, 2011, Robinson amended her complaint, alleging that Vista

View engaged in pay disparity between herself and similarly situated white co-workers.

She again alleged that her termination on January 4, 2010, was due to her race.

On October 31, 2011, Mr. Sheridan filed a notice of appearance on behalf

of Robinson. On this same day, Ten South filed an answer to the Amended Complaint of

Robinson, denying her allegations of discrimination. On March 29, 2012, Ten South

filed a motion to disqualify Mr. Sheridan from representing Robinson in proceedings

before the Commission, arguing that he was conflicted from representing Robinson

because he had acted in a judicial capacity while conducting the administrative review of

the NPC finding. The motion to disqualify Mr. Sheridan was denied by ALJ Wilson on

April 6, 2012. In his order, ALJ Wilson found that the administrative review hearing was

not an adjudication in nature; therefore, Mr. Sheridan was not disqualified from later

representing Robinson. ALJ Wilson further found that Ten South did not object to Mr.

Sheridan serving as a hearing officer for the administrative review and that Ten South

had not been prejudiced by Mr. Sheridan’s service as hearing officer.

Ten South filed its Petition for Writ of Mandamus in this Court on June 1,

2012. On June 6, 2012, ALJ Wilson entered an order staying all proceedings, including

discovery depositions and pre-trial mediation. The public hearing scheduled for July 10,

11 and 12, 2012, was continued until this Court resolves this matter.

II. STANDARD OF REVIEW

This is an original jurisdiction proceeding. We are not directly reviewing a

ruling or determination by a lower tribunal. Our standard for original mandamus

jurisdiction is as follows:

A writ of mandamus will not issue unless three elements
coexist—(1) a clear legal right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the
thing which the petitioner seeks to compel; and (3) the
absence of another adequate remedy.

Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367
(1969).

III. ANALYSIS

Ten South raises three grounds upon which it believes it is entitled to a writ

of mandamus. The first is that Robinson’s request for Administrative Review of the NPC

finding was untimely filed. The second is that the Commission failed to issue sufficient

findings or explanation as to why the Commission reversed its initial NPC findings.

Finally, Ten South argues that Mr. Sheridan should be disqualified from representing

Robinson because he acted in an adjudicatory fashion when he conducted the

administrative review of Robinson’s complaint. Each ground shall be addressed

separately.

A. Timeliness

Ten South submits that Robinson’s request for administrative review, or a

“second chance,” should have been filed by June 21, 2011, and that it was three days

overdue when it was filed on June 24, 2011. The timeliness of the request is mandated

by W. Va. Code § 5-11-10 (1994), which states:

If it shall be determined after such investigation that no
probable cause exists for substantiating the allegations of the
complaint, the commission, shall, within ten days from such
determination, cause to be issued and served upon the
complainant written notice of such determination, and the
said complainant or his attorney may, within ten days after
such service, file with the commission a written request for a
meeting within the commission to show probable cause for
substantiating the allegations of the complaint.

The Commission has promulgated procedural rules that govern practice and

procedure before the Commission. W. Va. Code R. § 77-2-2.13 (1999) states that when

the term “service” is used, it means service within Rule 4 of the West Virginia Rules of

Civil Procedure (“W. Va. R. Civ. P.”). Rule 4 of the W. Va. R. Civ. P. details the

acceptable manner of service: by any person over the age of 18 years who is not a party

to the action through delivery of the summons and complaint to the party; by the sheriff

delivering the summons and complaint to the party; by certified mail or by regular mail

addressed to the party; or by forwarding a copy of the summons and complaint to the

Secretary of State to accept service as specified by any applicable statute.

Further guidance may be found in W. Va. Code R. § 77-2-4.14.a (1999),

which details what constitutes service of a NPC determination and how an aggrieved

complainant may request a review of that determination. This section states,

A complainant may apply to the Commission, through its
compliant director or such other person as the executive
director may designate, for an administrative review of the
dismissal of her/his complaint. Requests for review shall be in
writing, shall state specifically the grounds relief on, may
contain new evidence not previously considered by the
Commission and shall be filed at the Commission office
within ten (10) days from the date of the complainant’s
receipt of such copy.

When used in conjunction with the applicable time period in which she had

to request administrative review of the NPC finding, Robinson argues that the word

“service” should be based upon her actual receipt of the document. She also points to the

language of the document that the Commission sent to her, which notes that her request

for administrative review is due “within ten (10) days of receipt of this letter.” She

argues her filing on June 24, 2011, was within ten days of her receipt of the letter.

We agree with Robinson’s interpretation of the filing deadline. While the

statute uses the word “service,” the rules interpreting that statute promulgated by the

Commission clearly detail “receipt” as the operative phrase in terms of when the time

starts for calculation of the deadline. Robinson filed her request for administrative

review on June 24, 2012, fourteen days after the NPC document was placed in the U.S.

Mail but within 10 days of Robinson’s receipt thereof. Ten South’s interpretation of the

deadline is unduly restrictive and seems to disregard the fact that the NPC document

advised Robinson that she had to take action within ten days of her receipt of the letter.

Ten South cannot show that it has a clear legal right to the dismissal of Robinson’s

request for administrative review and we deny the requested writ of mandamus on this

ground.1

B. Sufficiency of Findings

Ten South’s next basis for the issuance of a writ of mandamus is based on

the lack of specific findings in the Commission’s reconsideration of its initial NPC

finding. Ten South argues that the Commission was obligated to provide findings of fact

in support of the decision to reconsider the initial NPC finding. Ten South further posits

that it was entitled to any documents or evidence submitted by Robinson and any written

report or recommendation written by Mr. Sheridan, in his role as hearing officer for the

administrative review. Ten South argues that without these documents it is impossible to

determine whether and how Robinson met her burden to show that the NPC

determination was arbitrary, capricious or not in accordance with the law.

1
Robinson’s counsel argues that Ten South failed to timely object to
Robinson’s request for reconsideration. Inasmuch as we have resolved the issue on other
grounds, we do not address this argument.

W. Va. Code § 5-11-10 details the review process. It mandates that after an

initial NPC finding, the complainant may request an administrative review. The statute

states that

. . . [i]f 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 complained of by conference,
conciliation and persuasion.

The procedure for the review hearing is further refined in W. Va. Code R. §

77-4.4.14.f.1 et seq. (1999). W. Va. Code R. §77-4-4.14.f.2 allows for the Commission’s

attorney or other designated person to preside at the administrative review. The rules

allow for this person to be provided with the entire Commission file pertaining to the

complaint under review. The person presiding at the review hearing is authorized to take

any testimony under oath or to transcribe the testimony, but the rules do not require that

this happen.

The standard for review at the administrative review hearing is contained in

W. Va. Code R. § 77-4-4.14.f.2. This rule states, in pertinent part,

The complainant shall have the burden of showing that the
dismissal of the complaint is arbitrary, capricious, or not in
accordance with 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.

W. Va. Code R. § 77-4-4.14.f.3 states that if it is determined after

administrative review of an initial NPC finding that probable cause exists to credit the

allegations of the complaint, a recommended finding of probable cause will be made and

reported to the chairperson or executive director of the Commission. This allows the

chairperson or executive director to reopen the case or make such other disposition as he

or she deems appropriate.

The Commission’s duly promulgated rules specifically state that the

determinations made by it after an administrative review do not amount to a

determination of the merits of a case. W. Va. Code R. § 77-4-4.14.f.6 states,

The determination of the Commission or executive director
regarding an administrative review is not a determination on
the merits of the case. Upon a finding of no probable cause, a
dismissal order, accompanied by a “right to sue” letter, shall
be provided to the complainant.

Nowhere in the rules does the administrative review contemplate the

issuance of an order with the types of findings of fact being sought by Ten South. Ten

South cites no case law, statute, rule or regulation that would entitle it to this type of

order. Instead, at this stage in the proceeding, the Commission acts as gatekeeper to

determine whether complaints will be set for further hearings and development of

evidence or dismissed for lack of probable cause.

The NPC finding itself is not an adjudication of the case. We have held,

A “no probable cause” determination by the West Virginia
Human Rights Commission is not an adjudication on the
merits of a discrimination complaint since the parties have not
been afforded a public hearing in which to litigate the merits
of the facts and issues propounded in the complaint.

Syl. pt. 1, Jones v. Glenville State College, 189 W. Va. 546, 433 S.E.2d 49 (1993). This

is a preliminary ruling on the part of the Commission, not a final adjudication of the

merits of the complaint. An expansive order at this stage simply is not contemplated by

the rules or statute. It is instead the final order that is the adjudication of the complaint

and claims which is an appealable order. As such, we find that there is no authority for

Ten South’s requests for detailed findings of fact that support the Commission’s decision

after an administrative review that there was probable cause to Robinson’s complaint.

Without such a showing that Ten South has a clear legal right to the requested relief, this

Court cannot issue a writ of mandamus on that ground.

Ten South had also requested that this Court require the Acting Chief ALJ

to issue a subpoena for all records reviewed by the hearing officer in this administrative

review. We find no authority in the controlling statute and regulations providing that Ten

South have access to this type of information. Therefore, we cannot compel the issuance

of a subpoena for this information and Ten South is not entitled to a writ of mandamus on

this ground.

C. Conflict of Interest

The final ground upon which the Petitioner seeks issuance of a writ of

mandamus is to address the apparent conflict of an assistant attorney general representing

Robinson after that same assistant attorney general previously acted as the hearing

examiner who made recommendations to the Commission that resulted in the

reinstatement of Robinson’s complaint. After the Commission’s initial NPC finding was

reversed and probable cause was found for Robinson’s complaint, Mr. Sheridan entered a

notice of appearance as counsel for Robinson. The matter has now been set for hearing,

albeit stayed sua sponte by ALJ Wilson. Ten South posits that Mr. Sheridan’s

appearance as counsel violated Rule 1.12 (a) of The West Virginia Rules of Professional

Conduct because Mr. Sheridan acted as a judge and lawyer in the same matter.

From the outset we note that since the time this petition for writ of

mandamus was filed and the issuance of this opinion, Mr. Sheridan is no longer

employed as an Assistant Attorney General. While the immediate question of whether

Robinson’s counsel may represent her in these proceedings is moot, the likelihood of

future recurrence of this issue warrants discussion by this Court. “A case is not rendered

moot even though a party to the litigation has had a change in status such that he no

longer has a legally cognizable interest in the litigation or the issues have lost their

adversarial vitality, if such issues are capable of repetition and yet will evade review.”

Syl. pt. 1, State ex rel. M.C.H. v. Kinder, 173 W.Va. 387, 317 S.E.2d 150 (1984); see also

State ex rel. Fillinger v. Rhodes, ___ W. Va. ___, 741 S.E.2d 118 (March 12, 2013)

(“This Court has addressed issues that are likely to arise in the future on a continuing

basis that are of special importance to the public and to the bar even when a settlement

has been reached.”).

Rule 1.12 of the Rules of Professional Conduct prohibits a former judge or

arbitrator from representing anyone in connection with a matter in which the lawyer

participated personally and substantially as a judge or other adjudicative officer,

arbitrator or law clerk, unless all parties in the proceedings consent after consultation.

Ten South objected to Mr. Sheridan’s appearance as Robinson’s counsel.2

As a preliminary matter, we find that under the Commission’s procedural

rules, the Commission’s attorney or other designated person is to preside at the

administrative review hearing. W. Va. Code R. § 77-2-4.14.f.2. The petitioner has not

asked this Court to invalidate this rule. Instead, the petitioner asks that Mr. Sheridan be

disqualified from serving as Robinson’s counsel “in further proceedings before the

2
Upon our review of the record we find that contrary to the April 6, 2012, order of
ALJ Wilson denying Ten South’s motion for disqualification of Mr. Sheridan, Ten South
did in its answer to the amended complaint object to Mr. Sheridan’s representation of
Robinson.

Human Rights Commission.” Because Mr. Sheridan presided at the administrative

review hearing in an adjudicatory role as the hearing officer for the Commission, Ten

South argues that Mr. Sheridan is conflicted from now representing Robinson.

Robinson argues that the Attorney General is mandated to represent the

Commission,3 and that the procedural rules for the Commission contemplate and

authorize the actions taken by Mr. Sheridan throughout this proceeding, including serving

as hearing officer during the administrative review. Robinson posits that the role of legal

adviser and legal advocate are generally encompassed in the meaning of the term “legal

services” and that the Commission often looks to counsel for advice in discerning

probable cause cases. Furthermore, Robinson argues that because the NPC determination

was not an adjudication of the merits of her complaint, Mr. Sheridan did not serve in an

adjudicatory role.

3
W. Va. Code § 5-11-7 (1967) states,

The commission may call upon other officers, department 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.

Despite Robinson’s arguments that Mr. Sheridan’s actions were

investigatory, we find that a careful review of the actions taken in the course of Mr.

Sheridan’s role as the hearing office is necessary. Those duties included listening to the

evidence presented by Robinson in support of her complaint. Mr. Sheridan was entitled

to determine whether the hearing was to be transcribed. He was authorized to administer

an oath. He evaluated the evidence presented. He then made recommendations to the

Commission as to whether Robinson’s complaint should go further. While the ultimate

decision about whether probable cause had been established was not his—and we do not

know what Mr. Sheridan’s recommendation may have been—Mr. Sheridan nonetheless

heard evidence, weighed the evidence and made a recommendation to the Commission

about what needed to be done in this case. After the Commission found probable cause

to continue with Robinson’s complaint, Mr. Sheridan then entered a notice of appearance

on behalf of Robinson.

Although Mr. Sheridan was not the judge in this matter, because he did not

have the final authority to render a decision, he nonetheless did adjudicate matters within

this proceeding, within a normal definition of the word. His actions were similar to those

of a judicial referee or hearing examiner, who hears the evidence of the parties, weighs it

and analyzes it, and then makes recommendations to a judge, who has the ultimate

decision-making authority. Therefore, Mr. Sheridan’s representation of Robinson in this

matter is inconsistent with the conflict of interest rationale of Rule 1.12 of the West

Virginia Rules of Professional Conduct.

However, we further find that Mr. Sheridan’s disqualification in this case

was not the result of any improper or unethical conduct on his part. The determination of

this issue turns on an issue related to the validity of W. Va. C. R. § 77-2-4.14.f.2, as

discussed herein. That regulation describes what we have deemed to be a judicial review

that is not necessarily contemplated by statute. The statute upon which this regulation is

based contemplates the Commission reviewing the initial 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

Commission for further investigation.” Jones v. Glenville State College, 189 W. Va. 546,

551, 433 S.E.2d 49, 54 (1993).

In Jones, we noted 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)). The Commission’s probable cause

determination also parallels the gatekeeping function performed by a prosecuting

attorney, who prior to and even after submitting a criminal matter to a grand jury,

determines whether the evidence is sufficient to proceed with the case. State ex rel

Hamstead v. Dostert, 173 W. Va. 133, 138-90, 313 S.E.2d 409, 415 (1984) (“With

respect to the determination of whether to seek an indictment, the ultimate criterion must

be whether, in the prosecutor’s professional judgment, it appears from the evidence that

there is probable cause to believe that an offense has been committed and that the

defendant committed it.”); State ex rel. Skinner v. Dostert, 166 W. Va. 743, 752, 278

S.E.2d 624, 631 (1981) (“The prosecuting attorney, in his sound discretion, may refrain

from prosecuting a cause or, having commenced a prosecution, may move the dismissal

of a cause, when in good faith and without corrupt motivation or influence, he thinks that

the guilt of the accused is doubtful or not capable of adequate proof.”); State ex rel.

Miller v. Smith, 168 W. Va. 745, 755–756, 285 S.E.2d 500, 506 (1981) (“Prosecuting

attorneys are executive officers, see W. Va. Const. art VII, § 1; W. Va. Code § 5-3-2

(1979 Replacement Vol.), §7-4-1, and in the performance of their executive duties they

are not subject to the judicial writ of prohibition[.]”).

In determining whether the complainant has demonstrated probable cause at

the statutory “second chance” meeting, the Commission is exercising a purely executive

function. “[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, W. Va. Code R.

§ 77-2-4.14.f.2, describes this 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.” This is, without question, a judicial review standard that is

completely disconnected from the statute and, indeed, makes no sense in this context.

Nothing in the statute states, suggests or even permits an inference that the purpose of the

meeting is to determine the validity of the initial NPC 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 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.

It is within this conflict between the statute and the regulation that Mr.

Sheridan found himself placed when he acted as the hearing officer. Since the statute

contemplates the review of additional evidence by the Commission, the regulation creates

a quasi-judicial proceeding in which Mr. Sheridan was clearly performing judicial tasks.

The fault is not with Mr. Sheridan, who was at all times performing the tasks assigned to

him by his client, the Commission. Fault lies with the Commission, which promulgated a

rule that is inconsistent with the statute and created a no-win situation for its counsel.

However, although the validity of the regulation is questionable, this issue is not directly

before us in this petition for writ of mandamus4 and so we decline to rule on that issue at

this time.

4
“ ‘ “In the exercise of its appellate jurisdiction, this Court will not decide
nonjurisdictional questions which were not considered and decided by the court from
which the appeal has been taken.” Syllabus Point 1, Mowery v. Hitt, 155 W. Va. 103[,
181 S.E.2d 334] (1971).’ Syl. pt. 1, Shackleford v. Catlett, 161 W. Va. 568, 244 S.E.2d
(continued . . .)
18

Because of the conflicting standards between statute and regulation, Mr.

Sheridan was unwittingly placed in a position resulting in his technical violation of Rule

1.12 of the Rules of Professional Conduct. Although this was an unintentional technical

violation by Mr. Sheridan, we hold that an attorney who acts as a hearing officer for the

West Virginia Human Rights Commission for the purpose of an administrative review of

a “no probable cause” determination may not later represent the complaining party in

proceedings before the Commission on the claim.

We conclude that Ten South has a clear legal right to the relief requested:

the disqualification of Mr. Sheridan. We further find that ALJ Wilson should have

entered an order that disqualified Mr. Sheridan from representing Robinson in

proceedings before the Commission. Finally, we find that use of the writ of mandamus in

the instant proceeding is comparable to the typical issuance of a writ of prohibition

challenging a circuit court’s ruling on a motion for disqualification. This Court has

consistently found that use of a writ of prohibition is an appropriate mechanism to

challenge a lower court’s ruling on disqualification of counsel. See State ex rel. Keenan

v. Hatcher, 210 W.Va. 307, 311, 557 S.E.2d 361, 365 (2001); State ex rel. Ogden

327 (1978).” Syl. pt. 3, Voelker v. Frederick Business Properties Co., 195 W. Va. 246,
465 S.E.2d 246 (1995).

19
Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 589, 482 S.E.2d 204, 206 (1996); State ex

rel. McClanahan v. Hamilton, 189 W.Va. 290, 296, 430 S.E.2d 569, 575 (1993). The

rationale for such a finding was succinctly set forth in Ogden Newspapers, wherein we

stated:

The reason that a writ of prohibition is available in this Court
to review a motion to disqualify a lawyer is manifest. If a
party whose lawyer has been disqualified is forced to wait
until after the final order to appeal, and then is successful on
appeal, a retrial with the party’s formerly disqualified counsel
would result in a duplication of efforts, thereby imposing
undue costs and delay. See State ex rel. DeFrances v. Bedell,
191 W. Va. at 516, 446 S.E.2d at 909.

Conversely, if a party who is unsuccessful in its motion to
disqualify is forced to wait until after the trial to appeal, and
then is successful on appeal, not only is that party exposed to
undue costs and delay, but by the end of the first trial, the
confidential information the party sought to protect may be
disclosed to the opposing party or made a part of the record.
Even if the opposing party obtained new counsel, irreparable
harm would have already been done to the former client. The
harm that would be done to the client if it were not allowed to
challenge the decision by the exercise of original jurisdiction
in this Court through a writ of prohibition would effectively
emasculate any other remedy.

198 W. Va. at 589–90, 482 S.E.2d at 206–7.

The petitioner is entitled to the writ of mandamus on this issue.

IV. CONCLUSION

For the foregoing reasons, we deny the requested writ of mandamus insofar

as Ten South requested dismissal of the Robinson complaint on the ground that the

request for reconsideration was untimely. We further deny the requested writ of

mandamus that would require the Commission to explain its reasons for granting

Robinson’s request for reconsideration and issue an order compelling the issuance of

subpoena for the records reviewed in the course of the administrative hearing. We grant

the writ of mandamus as it relates to the representation of Robinson by Mr. Sheridan. We

find that through no fault of his own, Mr. Sheridan is disqualified from further

representation of Robinson because he previously acted in an adjudicatory fashion when

he oversaw the administrative hearing after the Commission initially dismissed the

Robinson complaint, and he represented the Commission itself in the earlier stages of this

proceeding.

Writ granted as Moulded.