1 

STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS

SWVA, Inc., 

Petitioner below, Petitioner 

vs) No. 17-0120 (Cabell County 16-C-807) 

Huntington Sanitary Board and 

City Council of the City of Huntington, 

Respondents below, Respondents 

CORRECTED MEMORANDUM DECISION

Petitioner SWVA, Inc. (SWVA), an industrial customer of Respondent Huntington 

Sanitary Board (Sanitary Board), objected to the process by which the Sanitary Board sought a 

rate increase in December 2016. Just prior to approval of the ordinance implementing the rate 

increase by Respondent City Council of the City of Huntington (City Council) in December 2016, 

SWVA sought a writ of mandamus and injunctive relief from the Circuit Court of Cabell County 

claiming that the Sanitary Board did not comply with statutory notice requirements. The circuit 

court denied the relief sought on the grounds that SWVA has an administrative remedy with the 

Public Service Commission (PSC) for challenging the Sanitary Board’s alleged noncompliance.1

This Court has considered the parties’ briefs, oral arguments, and the record on appeal. As 

explained below, we find no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21(d) of the 

West Virginia Rules of Appellate Procedure. 

I. Factual and Procedural Background 

The operative facts in this case are undisputed by the parties and involve a series of 

meetings conducted by the Sanitary Board and the City Council in December 2016. First, the 

Sanitary Board met to consider proposed rate increases to fund fifteen itemized projects in the total 

amount of $75 million. During this meeting on December 5, 2016, discussion turned to a new 

statutory provision requiring the Sanitary Board to provide prior public notice of construction 

projects that are not in the ordinary course of business. Concerns raised included whether the 

ordinance implementing the rate increase could be presented for approval by City Council prior to 

new City Council members taking office at the beginning of 2017. Ultimately, the Sanitary Board 

adjourned without taking action; a second meeting was scheduled for December 7, 2016. 

 1 Petitioner is represented by Carte P. Goodwin, Esq., and Joseph M. Ward, Esq. 

Huntington Sanitary Board is represented by Robert R. Rodecker, Esq. and Laura A. Hoffman, 

Esq. The City Council of the City of Huntington is represented by Scott A. Damron, Esq. 

FILED 

December 15, 2017 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
2 

When the Sanitary Board convened on December 7, 2016, it considered “An Ordinance 

Established and Fixing Rates, Fees and Charges of the Municipal Sewer System of Huntington, 

West Virginia” (Ordinance). The Ordinance proposed a three-step increase in rates charged by the 

Sanitary Board in order to fund $7.5 million in construction projects (reduced from the $75 million 

in projects proposed in the prior meeting). The Sanitary Board approved the Ordinance for 

consideration by City Council. 

After a first reading, the City Council referred the Ordinance to its Finance Committee. 

During a meeting conducted on December 14, 2016, detailed presentations regarding the rate 

increases and the nine (reduced from fifteen) construction projects to be funded were made. 

During the public comment period of the meeting, SWVA representatives John O’Connor and 

Elizabeth Grille presented opposition to the proposal. By unanimous vote, the Finance Committee 

sent the Ordinance back to City Council with a positive recommendation. 

On December 15 and 22, 2016, the Sanitary Board and City Council caused to be published 

in the Herald Dispatch newspaper a notice that the Council intended to take up consideration of 

the proposed Ordinance. The notice included the full text of the proposed Ordinance and stated 

that the hearing would be held on December 27, 2016, at 7:30, if interested parties wanted the 

opportunity to address the matter. A second notice was published on December 16 and 23, 2016, 

again providing the date and time of the hearing, and also informing the public that a copy of the 

Ordinance could be obtained from the Huntington City Clerk’s office. 

SWVA contends that it “was concerned about the effect the proposed rates increases would 

have on its operations,” but was unable “to obtain, never mind digest, specifics about the Ordinance 

within the compressed timeframe.” For that reason, on December 27, 2016 – the same day as the 

hearing – SWVA filed a complaint and petition for writ of mandamus and injunctive relief against 

the Sanitary Board and City Council. As relief, SWVA sought (1) a declaration that the nine 

proposed projects were not in the ordinary course of business and, thus, the Sanitary Board and 

the City Council were required to give public notice compliant with West Virginia Code § 24-2-

11(l) (2015)2

; (2) a mandate that the Sanitary Board and City Council comply with the notice 

requirements set forth in that section; and (3) an order preventing a vote on the proposed Ordinance 

until the notice requirements were met. SWVA filed a motion for a preliminary injunction and a 

temporary restraining order seeking to compel or enjoin noncompliance with the notice 

requirements, prohibit further consideration of the Ordinance, and to annul any decision made 

relating to the Ordinance if made in violation of West Virginia Code § 24-2-11(l). 

That evening, the City Council convened its hearing to consider the proposed Ordinance. 

After debate and public comment, the City Council approved the Ordinance by a 7-3 vote. The 

next day, a hearing on SWVA’s motions was noticed for January 10, 2017. At that hearing before 

the circuit court, the Sanitary Board argued that the majority of the injunctive relief requested by 

SWVA was now moot. Further, the Sanitary Board argued that SWVA was not entitled to any of 

 2 As discussed more fully below, West Virginia Code § 24-2-11(l) establishes certain 

public notice requirements if a large, publicly-owned utility seeks to pursue a construction project. 

The notice required by this provision is only necessary if the projects are not in the ordinary course 

of business. 
3 

the remaining requested relief because (1) the improvements approved by the City Council in the 

Ordinance were in the “ordinary course of business” for which no notice is required under West 

Virginia Code § 24-2-11(l); and (2) SWVA had not exhausted its administrative remedies available 

through the PSC. 

Following the hearing, the circuit court denied SWVA’s motions, and dismissed its 

complaint with prejudice. In doing so, the circuit court found that the improvements adopted in 

the Ordinance were in the “ordinary course of business” and, therefore, did not require notice under 

W. Va. Code § 24-2-11(l). The circuit court also determined that the statutes governing the PSC 

provided an adequate remedy at law, and that SWVA was required to exhaust that specific 

administrative remedy. Specifically, the circuit court referenced West Virginia Code §§ 24-2-

1(b)(6) and (7) (2015) as providing an adequate remedy for SWVA, because those sections grant 

the PSC jurisdiction “over large municipal utilities, such as [the Sanitary Board], with regard to 

the investigation and resolution of disputes involving their ‘rates, fees and charges,’ and . . . 

provides that customers of those large municipal utilities may bring complaints before the 

commission regarding those rates [sic] fees and charges.” 

SWVA appeals to this Court and argues that the circuit court erroneously characterized its 

challenge to the Ordinance as a complaint regarding the rates, fees and charges raised in the 

Ordinance when, in fact, it was challenging the Sanitary Board’s and City Council’s failure to 

comply with the notice requirements of West Virginia Code § 24-2-11(l). As a result of that 

mischaracterization, SWVA argues that the circuit court erroneously concluded it had a remedy 

under West Virginia Code § 24-2-1(b)(6) and (7). SWVA further argues that the circuit court erred 

in determining that the projects considered in the proposed Ordinance were “in the ordinary course 

of business” such that the notice requirements under § 24-2-11(l) were inapplicable. 

II. Standard of Review 

As we have established, “[a] de novo standard of review applies to a circuit court’s decision 

to grant or deny a writ of mandamus.”3

 We are likewise governed by a de novo standard of review 

in determining the scope of the PSC’s statutorily granted jurisdiction: “‘[w]here the issue on an 

appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, 

we apply a de novo standard of review.’ Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 

459 S.E.2d 415 (1995)”4 With these standards in mind, we turn to the parties’ arguments. 

 3

 Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 

555 (2008). 

4

 Syl. Pt. 4, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 

555 (2008). 
4 

III. Discussion 

Central to the circuit court’s denial of SWVA’s writ of mandamus was SWVA’s failure to 

meet the third element of our oft-repeated standard relating to when mandamus may be 

appropriate: “‘To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) 

a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of 

another adequate remedy.’ Syl. Pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981)).”5

 

As we have discussed, “‘the burden of proof as to all the elements necessary to obtain mandamus 

is upon the party seeking the relief[,] . . . a failure to meet any one of them is fatal.’”6 Accordingly, 

the circuit court denied the writ of mandamus having determined that SWVA had an adequate 

remedy before the PSC to challenge the rates, fees and charges in the Ordinance. The circuit court 

concluded that redress was available to SWVA under West Virginia Code §§ 24-2-1(b)(6) and (7), 

which provide: 

The jurisdiction of [the PSC] over political subdivisions of this state 

providing separate or combined services and having at least four 

thousand five hundred customers and annual combined gross 

revenue of $3 million or more that are political subdivisions of the 

state is limited to7: . . . 

(6) Investigation and resolution of disputes involving political 

subdivisions of the state regarding inter-utility agreements, rates, 

fees and charges, service areas and contested utility combinations. 

(7) Customers of water and sewer utilities operated by a political 

subdivision of the state and customers of stormwater utilities 

operated by a public service district may bring formal or informal 

complaints regarding the commission’s exercise of the powers 

enumerated in this section and the commission shall resolve these 

complaints.8

 5

 Syl. Pt. 3, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W. Va. 25, 658 S.E.2d 

555 (2008). 

6 State ex rel. Burdette v. Zakaib, 224 W. Va. 325, 331, 685 S.E.2d 903, 909 (2009) 

(internal citation omitted). 

7

 It is undisputed that the Sanitary Board is a publicly-owned utility with more than 4,500 

customers and annual gross revenues of $3 million or more.

8

 Some provisions at issue in this appeal have undergone several revisions that took effect 

in July 2017. However, the pertinent portions of those provisions on which we rely have remained 

unchanged. At all relevant times herein, the 2015 amendments to these provisions were applicable. 
5 

 SWVA contends that it does not have a remedy under these provisions because the 

challenge it raised to the Ordinance does not involve the rate, fees and charges, but rather the 

failure of the Sanitary Board and the City Council to comply with the notice provisions required 

under West Virginia Code § 24-2-11(l) prior to consideration of the Ordinance. 9 More 

specifically, SWVA argues that it challenges the Ordinance because the notices published in the 

 9

 West Virginia Code § 24-2-11(l) provides, in relevant part: 

Water, sewer and/or stormwater utilities that are political 

subdivisions of the state and having at least four thousand five 

hundred customers and combined gross revenues of $3 million 

dollars or more desiring to pursue construction projects that are not 

in the ordinary course of business shall provide notice to both 

current customers and those citizens who will be affected by the 

proposed construction as follows: 

(1) Adequate prior public notice of the contemplated construction by 

causing a notice of intent to pursue a project that is not in the 

ordinary course of business to be specified on the monthly billing 

statement of the customers or the utility for the month next 

preceding the month in which the contemplated construction is to be 

before the governing body on first reading. 

(2) Adequate prior public notice of the contemplated construction by 

causing to be published as a Class I legal advertisement of the 

proposed action, in compliance with the provisions of article three, 

chapter fifty-nine of the code. The publication area for publication 

shall be all territory served by the district. If the political subdivision 

provides service in more than one county, publication shall be made 

in a newspaper of general circulation in each county that the political 

subdivision provides service. 

(3) The public notice of the proposed construction shall state the scope 

of the proposed construction, the current rates, fees and charges, the 

proposed changes to said rates, fees and charges; the date, time and 

place of both a public hearing on the proposal and the proposed final 

vote on adoption; and the place or places within the political 

subdivision where the proposed construction and the rates, fees and 

charges may be inspected by the public. A reasonable number of 

copies of the proposal shall be kept at the place or places and be 

made available for public inspection. The notice shall also advise 

that interested parties may appear at the public hearing before the 

political subdivision and be heard with respect to the proposed 

construction and the proposed rates, fees and charges. 
6 

Herald Dispatch did not adequately notify the public or customers as required under the notice 

provision and thus, § 24-2-1(b)(6) and (7) do not apply to grant the PSC jurisdiction over its 

challenge to the Ordinance. Even accepting SWVA’s argument that it challenges the Ordinance 

based on the lack or insufficiency of the notice as opposed to the rates, fees and charges the 

Ordinance imposes, we find that SWVA has an available remedy through the PSC under §24-2-

1(b)(2) (2015). 10 

West Virginia Code § 24-2-1(b)(2) grants the PSC jurisdiction over “[r]egulation of 

measurements, practices, acts or services, as granted and described in section seven of this 

article[.]”11 Section seven, in turn, provides, in relevant part: 

Whenever, under the provisions of this chapter, the 

commission shall find any regulations, measurements, practices, 

acts or service to be unjust, unreasonable, insufficient or unjustly 

discriminatory, or otherwise in violation of any provisions of this 

chapter, or shall find that any service is inadequate, or that any 

service which is demanded cannot be reasonably obtained, the 

commission shall determine and declare, and by order fix reasonable 

measurement, regulations, acts, practices or services, to be 

furnished, imposed, observed and followed in the state in lieu of 

those found to be unjust, unreasonable, insufficient or unjustly 

discriminatory, inadequate or otherwise in violation of this chapter, 

and shall make such other order respecting the same as shall be just 

and reasonable.12

SWVA alleges that the public notices provided by the Sanitary Board and the City Council 

were either insufficient or were in violation of the notice provisions, codified in § 24-2-11(l) – one 

such “provision of this chapter.” When § 24-2-1(b)(2), the jurisdictional provision, is reviewed in 

 10 SWVA also argues that West Virginia Code § 24-2-1(b)(6) is inapplicable because it 

provides for PSC jurisdiction over the investigation and resolution of disputes relating to rates, 

fees, and charges only in the context of inter-utility agreements, not all challenges to rates, fees 

and charges. Because we find that the PSC has jurisdiction over compliance with the notice 

requirements, we need not address that argument. 

11 West Virginia Code § 24-2-1(b) provides that the PSC’s jurisdiction over large, 

publicly-owned utilities, as defined in that section, is limited to issues arising from the contexts 

enumerated in §24-2-1(b)(1) to -(b)(8). Although not raised in its brief, SWVA contended at oral 

argument that the delegation to the local sanitary board in §24-2-11(l) somehow abrogates the 

general jurisdiction of the PSC set forth in § 24-2-7(a). We decline to adopt that view. The 

provisions of §24-2-11(l) and §24-2-7(a) are not contradictory and we find that they may be read 

together to give effect to the Legislature’s intent. 

12 W. Va. Code § 24-7-2(a) (2015) (emphasis added). 
7 

conjunction with § 24-2-7(a), it is apparent that jurisdiction with regard to challenges to the notice 

provisions of chapter 24 is clearly and unambiguously granted to the PSC. This Court has long 

held that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute 

should not be interpreted by the courts, and in such case it is the duty of the courts not to construe 

but to apply the statute.”13 Applying the statute to these circumstances, the PSC has jurisdiction 

over SWVA’s challenge to the Ordinance for failure to fully comply with the notice provisions set 

forth in § 24-2-11(l). 

In addition to SWVA’s failure to meet the third element required for mandamus to issue, 

we have also discussed that “[t]he general rule is 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, and such remedy must be exhausted before the courts will act.”14 Further, 

we have explained that “[p]roceedings in equity for injunctions cannot be maintained where there 

is an administrative remedy provided by statute which is adequate and will furnish proper 

remedy.”15 Thus, the circuit court did not err in denying the writ of mandamus or in denying 

injunctive relief on the grounds that SWVA had another remedy at law that had not been exhausted. 

SWVA next raises as error the circuit court’s determination that the projects were “in the 

ordinary course of business” and therefore the forms of notice provided for under West Virginia 

Code § 24-2-11(l) were not required.16 For the same reasons set forth above, however, the circuit 

court did not have jurisdiction to determine whether the notice provisions were applicable, and 

therefore should not have ruled on the merits of whether the projects were or were not “in the 

ordinary course of business” so as to trigger the notice requirements. As we have discussed, 

insufficiency of or noncompliance with public notice required under West Virginia Code § 24-2-

11 is within the jurisdiction of the PSC, not the circuit court. 

 

For the foregoing reasons, we affirm the result reached by the circuit court in denying the 

writ of mandamus and injunctive relief for failure to exhaust an available administrative remedy. 

Affirmed. 

 13 Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 

S.E.2d 353 (1959). 

14 Syl. Pt. 1, Daurelle v. Traders Fed. Sav. & Loan Ass’n of Parkersburg, 143 W. Va. 674, 

104 S.E.2d 320 (1958). 

15 Syl. Pt. 4, Bank of Wheeling v. Morris Plan Bank & Trust Co., 155 W. Va. 245, 183 

S.E.2d 692 (1971). 

16 The circuit court, having determined that the projects were “in the ordinary course of 

business,” instead found that the Sanitary Board and the City Council had “provided public notice 

sufficient to satisfy the only notice requirement to which the Ordinance was subject” by providing 

the statutory notice required under West Virginia Code §§ 8-11-4 and 16-13-16 and forwarding 

the press release to the newspaper. 
8 

ISSUED: December 15, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker