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SER WV Highlands v. Div. of Environment
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1995 Term
No. 22233
STATE OF WEST VIRGINIA EX REL.
WEST VIRGINIA HIGHLANDS CONSERVANCY, INC.;
WEST VIRGINIA WILDLIFE FEDERATION;
WEST VIRGINIA COUNCIL, TROUT UNLIMITED, INC.; AND
WEST VIRGINIA CITIZEN ACTION GROUP,
Relators

v.
WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION AND DAVID C. CALLAGHAN, DIRECTOR OF THE WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION, IN HIS OFFICIAL CAPACITY, Respondents
Petition for Writ of Mandamus Motion for Attorney's Fees and Costs
MOTION GRANTED, IN PART
Submitted: January 31, 1995 Filed: April 14, 1995
Patrick C. McGinley         Darrell V. McGraw, Jr. Morgantown, West Virginia        Attorney General Phillip B. Scott             Joseph A. Lazell Carey, Hill & Scott                Senior Assistant Attorney Charleston, West Virginia General Attorneys for the Relators         Charleston, West Virginia
                            Attorneys for the Respondents
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS OF THE COURT

1.
Costs and attorney's fees may be awarded in mandamus proceedings involving public officials because citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed nondiscretionary duties.

2.
Attorney's fees may be awarded to a prevailing petitioner in a mandamus action in two general contexts: (1) where a public official has deliberately and knowingly refused to exercise a clear legal duty, and (2) where a public official has failed to exercise a clear legal duty, although the failure was not the result of a decision to knowingly disregard a legal command.

3.
Where a public official has deliberately and knowingly refused to exercise a clear legal duty, a presumption exists in favor of an award of attorney's fees; unless extraordinary circumstances indicate an award would be inappropriate, attorney's fees will be allowed.

4.
Where a public official has failed to exercise a clear legal duty, although the failure was not the result of a decision to knowingly disregard a legal command, there is no presumption in favor of an award of attorney's fees. Rather, the court will weigh the following factors to determine whether it would be fairer to leave the costs of litigation with the private litigant or impose them on the taxpayers: (a) the relative clarity by which the legal duty was established; (b) whether the ruling promoted the general public interest or merely protected the private interest of the petitioner or a small group of individuals; and (c) whether the petitioner has adequate financial resources such that petitioner can afford to protect his or her own interests in court and as between the government and petitioner.

5.
Apportionment of attorney's fees is appropriate where some of the claims and efforts of the claimant were unsuccessful. Where part of the attorney's fees sought was expended on discrete efforts that achieved no appreciable advantage in the litigation, or where the claim for attorney's fees rests partly on a result to which the claimant made no significant contribution, a court may consider these circumstances and apportion the attorney's fees accordingly. Cleckley, Justice:


        The relators in State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Division of Environmental Protection, 191 W. Va. 719, 447 S.E.2d 920 (1994) (Highlands I),See footnote 1 return to this Court seeking an award of attorney's fees and costs. Highlands I dealt with both a knowing disregard of a mandatory duty by the Division of Environmental Protection and issues that had not been previously addressed by this Court. Because the relators in this technically complex case are entitled to costs and attorney's fees for the part of their petition demonstrating a knowing disregard of a mandatory duty, we grant their request, in part, and award the relators $16,274.25, or one -half of their costs and attorney's fees.
I.
FACTS AND PROCEDURAL HISTORY

        Highlands I found that W. Va. Code, 22A-3-11(g) (1990), and 38 W. Va. C.S.R.

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