Willard E. Bays, Petitioner Below, Petitioner
Darry Casto, Clerk, Putnam County Magistrate Court, Respondent Below, Respondent
County 16-C-60 and 16-C-155
Willard E. Bays, pro se, appeals two orders of the Circuit
Court of Putnam County. In the first order, entered on May
13, 2016, (in Civil Action 16-C-60) the circuit court denied
petitioner's petition for a writ of mandamus, that sought
to compel Respondent Darry Casto, Clerk, Putnam County
Magistrate Court, to destroy the records of petitioner's
misdemeanor convictions for writing worthless checks in Case
Nos. 03M1159, 03M1560, 03M1561, 03M1562, and 03M1563
(collectively, "misdemeanor cases"). In the second
order, entered on July 7, 2016, (in Civil Action 16-C-155)
the circuit court dismissed the mandamus petition on the
ground that it previously addressed petitioner's request
in No. 16-C-60. Respondent, by counsel Gordon L. Mowen, II,
and Zachary A. Viglianco, filed a summary response in support
of the circuit court's orders.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds 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 of the Rules of Appellate Procedure.
entered guilty pleas and was convicted in his misdemeanor
cases in 2003. As a result, petitioner was ordered to pay
certain fines, costs, restitution, and fees. Petitioner
admits that he has never paid those court-ordered fines,
costs, restitution, and fees. According to petitioner, the
last collection effort occurred on May 4, 2004. However,
petitioner admits that respondent also requested that the
West Virginia Division of Motor Vehicles ("DMV")
suspend his driver's license in an effort to persuade him
to pay the fines, costs, and restitution assessed in his
misdemeanor cases "subsequent[ ]" to May 4, 2004.
Petitioner does not give a date for respondent's request
to the DMV.
with his driver's license being "currently
suspended, " petitioner filed two petitions for a writ
of mandamus in the Circuit Court of Putnam County, in Civil
Action Nos. 16-C-60 and 16-C-155, to compel respondent to
destroy the records in his misdemeanor cases pursuant to Rule
12 of the West Virginia Administrative Rules for the
Magistrate Courts, which sets forth a schedule pursuant to
which all magistrate court records shall be retained.
Petitioner argued that the circuit court should apply the
1988 version of Rule 12 because it was in effect at the time
of his convictions. In 2003, misdemeanor convictions for
writing worthless checks were included under "[a]ll
other misdemeanors." See Rule 12(c),
W.Va.Admin.Rul.Magis.Cts. (1988). Rule 12(c)(3) provided, as
follows: "After one year from last collection effort,
transfer case to inactive status; after 10 years from last
collection effort, destroy all records except case history
petitioner's argument, in Civil Action No. 16-C-60, the
circuit court denied petitioner's petition based on the
current version of Rule 12. The relevant provision has been
moved to Rule 12(d)(3), which provides, that, in cases in
which fines were assessed but remain unpaid, respondent is
required to "[r]etain all records for 75 years after
conviction date[.]" In Civil Action No. 16-C-155, the
circuit court dismissed that petition on the ground that it
previously addressed petitioner's request in Civil Action
now appeals the circuit court's orders in Civil Action
Nos. 16-C-60 and 16-C-155. We review the circuit court's
orders refusing petitioner's petitions for a writ of
mandamus de novo. See Painter v. Ballard, 237 W.Va.
502, ___, 788 S.E.2d 30, 34-35 (2016); Nobles v.
Duncil, 202 W.Va. 523, 528, 505 S.E.2d 442, 447 (1998).
This standard applies to cases where the circuit court's
decision was based on the following analysis:
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). The
party seeking the writ has the burden of "show[ing the]
clear legal right . . . and [the] corresponding duty[.]"
Syl. Pt. 1, Dadisman v. Moore, 181 W.Va. 779, 384
S.E.2d 816 (1988) (internal quotations and citations
omitted); see also Syl. Pt. 3, State ex rel.
Nelson v. Ritchie, 154 W.Va. 644, 177 S.E.2d 791 (1970)
(holding that "[h]e who seeks relief by mandamus must
show a clear legal right to the remedy").
appeal, petitioner reiterates the argument he made in the
circuit court: that the version of Rule 12 in effect in 2003
applies and that, pursuant to that version of the rule, he
had a clear legal right to have respondent destroy the
records of his misdemeanor cases. Respondent counters that
the circuit court properly found that the current version of
Rule 12 requires him to retain the records in
petitioner's misdemeanor cases for seventy-five years
following the date of his convictions. However, respondent
states that we have no need to conduct an analysis of whether
the 2015 version of the rule may be retroactively applied to
cases in which convictions occurred prior to its effective
date. Rather, respondent argues, assuming arguendo,
that the version of Rule 12 in effect in 2003 applies,
petitioner's allegations are insufficient to show his
entitlement to a writ of mandamus.
on our review of the record, we find that, assuming
arguendo, the version of Rule 12 in effect in 2003
applies, petitioner's allegations reveal no duty on
respondent's part to destroy the records in
petitioner's misdemeanor cases. The applicable provision
of the prior rule provided as follows: "After one
year from last collection effort, transfer case to inactive
status; after 10 years from last collection effort,
destroy all records except case history sheet." Rule
12(c)(3), W.Va.Admin.Rul.Magis.Cts. (1988) (emphasis added).
Petitioner contends the last effort to collect the fines,
costs, and restitution owed by him occurred on May 4, 2004.
However, petitioner admits that respondent requested that the
DMV suspend his driver's license in an effort to persuade
him to pay the court-ordered fines, costs, and restitution
"subsequent[ ]" to May of 2004. Petitioner does not
give a date for respondent's request, but his statement
that his driver's license is "currently
suspended" indicates ongoing collection efforts in
active cases. Given that petitioner's
allegations suggest that the time periods specified in Rule
12(c)(3) have been periodically renewed-such that respondent
has additional time to continue trying to collect the fines,
costs, and restitution owed by petitioner-we find that
petitioner fails to satisfy his burden of showing a clear
legal right to the destruction of the records in his
misdemeanor cases. Therefore, we conclude that the circuit
court did not err in refusing petitioner's mandamus
petitions in Civil Action Nos. 16-C-60 and 16-C-155.
foregoing reasons, we affirm the circuit court's May 13,
2016, order denying petitioner's petition for a writ of a
mandamus in Civil Action No. 16-C-60 and affirm the circuit
court's July 7, 2016, order dismissing his petition for a
writ of a mandamus in Civil Action No. 16-C-155.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin Jean Davis Justice Margaret L. Workman Justice Menis ...