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SER White v. Parsons
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1996 Term ___________ No. 23542 ___________ STATE OF WEST VIRGINIA EX REL. JUDSON WHITE, Petitioner, v. LARRY F. PARSONS, ADMINISTRATOR, SOUTH CENTRAL REGIONAL JAIL, Respondent _______________________________________________________ Petition for a Writ of Prohibition WRIT GRANTED AS MOULDED _______________________________________________________ Submitted: September 10, 1996 Filed: December 9, 1996 Matthew A. Victor Charleston, West Virginia Attorney for the Petitioner Chad M. Cardinal Assistant Attorney General Charleston, West Virginia Attorney for the Respondent JUSTICE ALBRIGHT delivered the Opinion of the Court. JUDGE RECHT sitting by temporary assignment. SYLLABUS BY THE COURT In a rule-making procedure, when an agency has before it substantial objections to the proposal made by interested persons, as a result of a comment period or hearing precedent to the approval of a regulation, the agency must conduct a good faith review of those objections and reflect the substance of that review on the rule-making record. Albright, Justice: On June 3, 1996, an absolute ban against the possession or use of tobacco by inmates was put into effect at the South Central Regional Jail, located at Charleston, West Virginia, under the authority of legislative rules promulgated by the Jail and Correctional Facility Standards Commission. The petitioner, Judson White, was a pretrial detainee at the jail, who petitioned this CourtSee footnote 1 pro se for relief from the tobacco ban. This Court granted a rule to show cause why a writ of prohibition should not issue and appointed counsel to represent petitioner. After hearing oral arguments, the Court further ordered respondent to file with the Court "any documentation available regarding the
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promulgation" of the underlying anti-tobacco regulations and ordered additional briefs from the parties. After consideration of the petition, the oral arguments, the briefs of the parties, and the documentation filed, we award a moulded writ. FACTS On March 25, 1994, respondent, the Administrator of the South Central Regional Jail, announced that all tobacco use at the South Central Regional Jail (The SCRJ) would be eliminated by June 1, 1994. Tobacco use was to be phased out under a schedule put in place April 1, 1994. Richard Kincaid, an inmate at the SCRJ, filed a petition for injunctive relief prohibiting enforcement of the Administrator's tobacco ban, and this Court, treating the matter as a habeas corpus petition, awarded a moulded writ in State ex rel. Kincaid v. Parsons, 191 W.Va. 608, 447 S.E.2d 543 (1994) . In its opinion, the Kincaid Court found that a total ban on the use of tobacco amounted to a legislative rule that "cannot be left to the sole discretion of the administrator of one regional jail; rather, the State Administrative Procedures Act (APA)See footnote 2 and W.Va. Code

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