DAVIS, Justice:
The petitioners herein and defendants below, Cavalry SPV I, LLC ("SPV I"); Cavalry SPV II, LLC ("SPV II"); Cavalry Investments, LLC ("CI"); and Cavalry Portfolio Services, LLC ("CPS")
In Case Number 11-1564, the Petitioners appeal from an order entered October 7, 2011, by the Circuit Court of Kanawha County. By that order, the circuit court denied the Petitioners' motion to dismiss the investigative subpoena; granted the Attorney General's motion for a temporary injunction enjoining the Petitioners from collecting debts they had acquired before they were licensed in West Virginia to do so; compelled the Petitioners to comply with the investigative subpoena; and ordered the Petitioners to send a letter to affected consumers. On appeal to this Court, the Petitioners challenge the validity and enforceability of the Attorney General's investigative subpoena. Upon a review of the parties' arguments, the appendix record submitted for appellate consideration, and the pertinent authorities, we affirm, in part, and reverse, in part, the circuit court's October 7, 2011, order. In summary, we find that the Attorney General's investigatory powers include the power to issue investigative subpoenas pursuant to W. Va.Code § 46A-7-104 (1974) (Repl.Vol. 2006) and that the subject investigative subpoena was validly issued in the case sub judice in accordance with the Attorney General's statutory authority to conduct investigations. We further conclude that when the Attorney General files a cause of action against a person or entity that is subject to an investigative subpoena, the Attorney General's subpoena authority ends as to those matters that form the basis of the complaint's allegations, and the rules of discovery applicable to civil proceedings generally provide the method by which the Attorney General may continue to investigate the alleged wrongdoing. However, an investigative subpoena survives the Attorney General's filing of a lawsuit when the subpoena, in whole or in part, pertains to matters that do not form the basis of the subject complaint. Therefore, the Attorney General's investigative subpoena in the case sub judice is enforceable as to matters that are not encompassed by the Attorney General's pending civil action against the Petitioners. Accordingly, we reverse that portion of the circuit court's order that enforced the entirety of the Attorney General's investigative subpoena prior to determining whether any of the matters of inquiry addressed therein are now subject to civil discovery in the pending enforcement proceedings and remand this case to the circuit court to conduct such an analysis. We affirm the remainder of the circuit court's rulings preliminarily upholding the Attorney General's investigative subpoena.
In Case Number 12-0546, the Petitioners appeal from an order entered March 20, 2012, by the Circuit Court of Kanawha County. By that order, the circuit court denied the Petitioners' motion to dissolve or modify the aforementioned temporary injunction; refused the Attorney General's motion for stay of discovery pending the Petitioners' compliance with the Attorney General's investigative subpoena; deemed that portion of the court's October 7, 2011, order requiring the Petitioners to comply with the Attorney General's investigative subpoena to be a final and appealable order; and provided language to be included in the Petitioners' letter to affected consumers. On appeal to this Court, the Petitioners contest the circuit court's decision to uphold its imposition of a temporary injunction. Upon a review of the parties' arguments, the appendix record submitted for appellate consideration, and the pertinent authorities, we affirm the circuit court's March 20, 2012, order. In summary, we find that once the Attorney General has instituted a civil action against a person or entity to enjoin unlawful conduct, the Attorney General may also seek temporary relief against the person or entity during the pendency of such proceedings in accordance with W. Va.Code § 46A-7-110 (1974) (Repl.Vol. 2006). We further conclude that the temporary injunction imposed upon the Petitioners herein was properly issued in compliance
The facts giving rise to the instant controversies are not generally disputed by the parties. All of the Petitioners herein are engaged in various aspects of the collection of consumer debts, which include purchasing charged-off debts that are deemed to be uncollectible by the original creditors and attempting to collect these debts from consumer debtors.
Thereafter, on June 3, 2010, the Attorney General filed a civil action in the Circuit Court of Kanawha County against all four Petitioners (1) seeking an order compelling the named Petitioners to comply with the investigative subpoena and (2) alleging violations of the West Virginia Consumer Credit and Protection Act, W. Va.Code § 46A-1-101 et seq. See generally W. Va.Code § 46A-7-108 (1974) (Repl.Vol.2006) (authorizing Attorney General to bring action to enjoin violations of chapter); W. Va.Code § 46A-7-111 (1999) (Repl.Vol.2006) (permitting Attorney General to bring civil actions against creditors). As to the alleged statutory violations, the Attorney General also sought temporary relief pursuant to W. Va.Code § 46A-7-110 (1974) (Repl.Vol.2006) to enjoin the Petitioners from continuing their alleged misconduct during the pendency of the enforcement proceedings. The Petitioners moved to dismiss the Attorney General's complaint.
By order entered October 7, 2011, which order forms the basis of Case Number 11-1564 in this Court, the circuit court denied the Petitioners' motion to dismiss the complaint and granted the Attorney General's request for temporary relief. In pertinent part, the court ruled:
(Footnote added). Finally, the order directed the Petitioners to send a letter to all affected consumers
From this order, the Petitioners appeal to this Court in Case Number 11-1564.
Following the circuit court's order restraining the Petitioners' debt collection activities through its imposition of a temporary injunction, the Petitioners moved to dissolve or otherwise modify the terms of the temporary injunction. By order entered March 20, 2012, which order forms the basis of Case Number 12-0546 in this Court, the circuit court denied the Petitioners' motion to dissolve or modify the temporary injunction. In rendering its ruling, the circuit court also declared final that portion of its earlier order compelling the Petitioners to comply with the Attorney General's investigative subpoena so as to permit the Petitioners to file an appeal therefrom. The court further clarified the language to be included in the aforementioned letter to affected consumers. In addition, the circuit court denied the Attorney General's request to stay discovery pending the Petitioners' compliance with the investigative subpoena thereby allowing discovery to proceed in the underlying civil action. Finally, with regard to the Petitioners' subpoena compliance, the court recognized that,
From this order, the Petitioners appeal to this Court in Case Number 12-0546.
Given that our consideration of the assigned errors is governed by specific standards of review applicable to each issue, we will set forth the corresponding standards in our discussion thereof.
Because each of the instant appeals raises distinct issues, we will consider each case separately.
In Case Number 11-1564, the Petitioners contend that the circuit court erred by (1) determining that the Attorney General's investigative subpoena is valid despite the Attorney General's failure to hold an administrative hearing prior to its issuance, the lack of probable cause to support the subpoena, and the subpoena's inclusion of unauthorized interrogatories and (2) enforcing the investigative subpoena after the Attorney General had filed a lawsuit against the Petitioners.
Moreover, we apply a three-part standard of review to the circuit court's order finding the Attorney General's investigative subpoena to be valid and enforceable against the Petitioners:
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). Our consideration of the Petitioners' assignments of error will be guided by these standards.
At the outset, we note that "[t]he powers and duties of the Attorney General are specified by the constitution and by rules of law prescribed pursuant thereto." Syl. pt. 1, Manchin v. Browning, 170 W.Va. 779, 296 S.E.2d 909 (1982), overruled on other grounds by State ex rel. Discover Fin. Servs., Inc. v. Nibert, 231 W.Va. 227, 744 S.E.2d 625
To ascertain whether a hearing is a necessary prerequisite to the issuance of an investigative subpoena and whether the Attorney General has the authority to request information by interrogatory, we must examine the governing statutory language.
The first step of statutory construction requires an examination of the Legislature's intent in enacting the subject statute: "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). "When 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." Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959). Accord Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) ("A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect."). In other words, "[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). Accord Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995) ("We look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.").
Applying these rules of statutory construction to the subject legislative provision, we find the language of W. Va.Code § 46A-7-104 to be plain and unambiguous in its intention to permit the Attorney General to issue an investigative subpoena. Accordingly, we hold that the Attorney General's investigatory powers include the power to issue investigative subpoenas pursuant to W. Va. Code § 46A-7-104 (1974) (Repl.Vol.2006). Considering the questions posed by the Petitioners, we further conclude that the plain language of W. Va.Code § 46A-7-104 definitively answers and dispenses with both the
In their arguments before this Court, the Petitioners contend that W. Va.Code § 46A-7-104(1) requires the Attorney General to hold an administrative hearing prior to the issuance of an investigative subpoena. We disagree. The language of this provision does not impose upon the Attorney General an obligation to hold an administrative hearing incident to the issuance of an investigative subpoena. In fact, the word "hearing" does not appear anywhere in the language of W. Va.Code § 46A-7-104(1). While it is plausible to read the statute as contemplating that a hearing may be held at some point in time to facilitate certain processes related to the subpoena's execution, e.g., the administration of oaths or affirmations and the compulsory attendance of witnesses, W. Va.Code § 46A-7-104(1) simply does not require the Attorney General to hold a hearing as a prerequisite to the issuance of an investigative subpoena.
"`Courts must presume that a legislature says in a statute what it means and means in a statute what it says there.'" Martin v. Randolph Cnty. Bd. of Educ., 195 W.Va. 297, 312, 465 S.E.2d 399, 414 (1995) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)). Moreover, "[i]t is not for this Court arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citations omitted).
We are confident that if the Legislature had intended to establish a precise and definite requirement that a hearing be held prior to the issuance of an investigative subpoena, the Legislature would have clearly stated the necessity of such a procedure as it did when it explained the process for the Attorney General to seek a party's compliance with an investigative subpoena. In this regard, the Legislature specifically has stated in W. Va. Code § 46A-7-104(3) that,
(Emphasis added). This statutory language plainly directs that a hearing is required before an order compelling compliance with an investigative subpoena may be issued. This language does not, however, address the need for a hearing to issue an investigative subpoena in the first instance. Therefore, we conclude that the Attorney General is not required to hold an administrative hearing prior to the issuance of an investigative subpoena pursuant to W. Va.Code § 46A-7-104.
Likewise, we reject the Petitioners' contention that the Attorney General's investigatory authority does not encompass the use of interrogatories. The plain language of W. Va.Code § 46A-7-104(1) permits the Attorney General to issue an investigative subpoena that
Given that the investigative subpoena can request a party to provide specific information, e.g., through description, identity, and location details, it stands to reason that the Attorney General's investigatory authority contemplates the use of questionnaires, or interrogatories, to specify the type of information sought through the subpoena. The use of interrogatories in this manner also benefits the party subject to the subpoena by directing his/her attention to the specific type
Pursuant to W. Va.Code § 46A-7-104(1), the existence of probable cause is a necessary prerequisite to the issuance of an investigative subpoena: "[i]f the attorney general has probable cause to believe that a person has engaged in an act which is subject to action by the attorney general, he may... make an investigation to determine if the act has been committed[.]"
State v. Fregien, 331 Mont. 18, 20-21, 127 P.3d 1048, 1050 (2006) (quoting State v. Nelson, 283 Mont. 231, 243-44, 941 P.2d 441, 449 (1997) (additional citation omitted)). Accord State v. Bilant, 307 Mont. 113, 121, 36 P.3d 883, 888 (2001) (finding probable cause for the issuance of an investigative subpoena to exist when there are "sufficient facts to support a determination that there is a probability of criminal activity" (citation omitted)). See also People v. Mason, 989 P.2d 757, 761 (Colo.1999) (holding that "probable cause for a subpoena ... requires a reasonable likelihood that the evidence sought exists and that there is a nexus between the [person to whom, or entity to which, the subpoena is directed] and the [alleged] crime"). Cf. Syl. pt. 4, Feathers v. West Virginia Bd. of Med., 211 W.Va. 96, 562 S.E.2d 488 (2001) ("A finding that probable cause exists to substantiate a complaint made under the Medical Practice Act is not a necessary prerequisite for the Board of Medicine to issue a subpoena or subpoena duces tecum under W. Va. Code, 30-3-7(a)(2) [1980].").
Probable cause for the issuance of an investigative subpoena, then, does not anticipate information of sufficient detail as would permit the successful prosecution of an enforcement proceeding. Rather, the Attorney General's investigative subpoena is designed to be issued when probable cause exists to believe a violation of the consumer protection laws of this State has occurred and serves to facilitate the Attorney General's investigation of such alleged wrongdoing by producing information that would support the filing of an enforcement action against the alleged violator. Under the facts of the case sub judice, we find that the Attorney General had probable cause to issue the subject investigatory subpoena and that the circuit court properly upheld the investigatory subpoena as valid.
We next consider whether the circuit court properly enforced the Attorney General's investigative subpoena. Pursuant to W. Va.Code § 46A-7-104, the Attorney General is authorized to seek an order compelling compliance with an investigative subpoena: "[u]pon failure of a person without lawful excuse to obey a subpoena ... and upon reasonable notice to all persons affected thereby, the attorney general may apply to the circuit court of the county in which the hearing is to be held for an order compelling compliance." W. Va.Code § 46A-7-104(3). Whether a court should enforce an administrative subpoena is governed by satisfaction of the criteria we enumerated in Syllabus point 1 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996):
Applying these elements to the facts of the present case, we find that the Attorney General has satisfied the elements necessary to obtain judicial backing of his investigative subpoena. Unquestionably, the investigative subpoena was issued for a purpose specifically authorized by the Legislature, i.e., to investigate alleged violations of the West Virginia Consumer Credit and Protection Act, and the material sought thereunder was designed to elicit information as to whether such statutory violations had, in fact, occurred. Moreover, at the time the Attorney General issued his investigative subpoena, he did not yet have the information in hand that he sought to obtain regarding the commission of the alleged violations, and the subpoena, itself, is sufficiently detailed to inform the parties subject thereto of the type of material that is requested thereunder. Finally, as noted in the preceding section, the Attorney General properly complied with the mandates of W. Va.Code § 46A-7-104(1) in issuing the investigative subpoena.
The investigative subpoena being thus "presumably valid" under Hoover, the Petitioners now bear the burden of proving the subpoena is invalid by challenging its "presumed relevance and purpose." Syl. pt. 1, in part, Hoover, 199 W.Va. 12, 483 S.E.2d 12. On appeal to this Court, the Petitioners contend that it is improper for the Attorney General to seek the enforcement of his investigative subpoena after he has filed a civil action against them alleging they have committed the same misconduct that he sought to investigate through the subpoena. Had the Attorney General sought to enforce his investigative subpoena at an earlier juncture, our inquiry likely would end here with a ratification of the circuit court's enforcement order. See Citizens' Aide/Ombudsman v. Grossheim, 498 N.W.2d 405, 407 (Iowa 1993) (noting that "[e]nforcement [of investigative subpoena] is the rule, not the exception, so
As we noted in the foregoing discussion, "[t]he investigatory power of the Attorney General ... authoriz[es the Attorney General] to investigate prior to making any charges of a violation of the law." Graley's Body Shop, 188 W.Va. at 505 n. 2, 425 S.E.2d at 181 n. 2 (emphasis added). Once a complaint has been filed formally charging a party with statutory misconduct, however, the Attorney General no longer may rely upon his powers of investigation to elicit information to establish those specific consumer protection violations that form the basis of the complaint. Rather, upon the commencement of enforcement proceedings through the filing of a civil action by the Attorney General, the Attorney General's investigatory powers end as to those matters addressed in the complaint and are supplanted by the rules of discovery applicable to civil proceedings generally.
W. Va. R. Civ. P. 26(b)(1). It has been said that
Franklin D. Cleckley, Robin J. Davis, and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 26[2], at 540 (2002) (footnotes omitted).
While both an investigative subpoena and civil discovery are designed to elicit information to support a claim, an investigative subpoena is not, however, a substitute for discovery. Simply stated, "[a] subpoena... is not a discovery device,"
That is not to say, however, that the Attorney General's investigative subpoena did not survive the filing of his complaint in the case sub judice. Rather, the Attorney General's investigative subpoena unquestionably remains valid and enforceable as to those matters about which his investigation remains pending. See, e.g., In re McVane, 44 F.3d 1127, 1141 (2d Cir.1995) ("[T]he initiation of civil proceedings does not moot an administrative subpoena." (citations omitted)); Resolution Trust Corp. v. Walde, 18 F.3d 943, 950 (D.C.Cir.1994) (same); Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508, 1518 (D.C.Cir.1993) (same); National Labor Relations Bd. v. Bacchi, No. 04 MC 28(ARR), 2004 WL 2290736, at *4 (E.D.N.Y. June 16, 2004) ("[I]t is well settled that the commencement of civil proceedings does not terminate an administrative agency's investigative authority nor moot its administrative subpoena." (citations omitted)); Reich v. Hercules, Inc., 857 F.Supp. 367, 369 (D.N.J. 1994) ("When an administrative agency issues a subpoena pursuant to broad statutory authorization, a supervening civil proceeding does not render the subpoena moot." (citations omitted)); Sutro Bros. & Co. v. Securities & Exch. Comm'n, 199 F.Supp. 438, 439 (S.D.N.Y.1961) (suggesting that administrative agency therein may continue its investigation following the commencement of public proceedings against alleged violators and recognizing that "such investigation [may] reveal further evidence for use in the pending proceeding"). See also Bowles v. Bay of New York Coal & Supply Corp., 152 F.2d 330, 330 (2d Cir.1945) ("[T]he rules of civil procedure do not apply to restrict or control administrative subpoenas.").
Nevertheless, to ensure that an investigative subpoena is not inadvertently used to obtain information from a defendant, against whom a civil complaint alleging statutory violations has been filed, when such inquiries should, instead, be made in accordance with the rules of discovery applicable to civil actions generally, we find it prudent to adopt the following holdings. Accordingly, we hold that when the Attorney General files a cause of action against a person or entity that is subject to an investigative subpoena, the Attorney General's subpoena authority ends as to those matters that form the basis of the complaint's allegations, and the rules of discovery applicable to civil proceedings generally provide the method by which the Attorney General may continue to investigate the alleged wrongdoing. However, an investigative subpoena survives the Attorney General's filing of a lawsuit when the subpoena, in whole or in part, pertains to matters that do not form the basis of the subject complaint.
In Case Number 12-0546, the Petitioners contend that the circuit court erred by issuing and enforcing the temporary injunction enjoining them from collecting upon debts they acquired prior to their licensure as debt collectors in the State of West Virginia.
Syl. pt. 1, State ex rel. McGraw v. Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792 (1996). Guided by this standard, we proceed to consider the Petitioners' assignment of error.
W.Va.Code § 46A-7-110 (1974) (Repl.Vol.2006) specifically authorizes the Attorney General to seek temporary relief in conjunction with enforcement proceedings and provides that,
W. Va.Code § 46A-7-110. See also W. Va. Code § 46A-7-108 (1974) (Repl.Vol.2006) (permitting Attorney General to "bring a civil action to restrain a person from violating this chapter"); W. Va.Code § 46A-7-109 (1996) (Repl.Vol.2006) (authorizing Attorney General to bring civil action to restrain creditor from engaging in enumerated activities). Construing this provision in accordance with
Having established the Attorney General's authority to seek the subject temporary injunction, we next must consider whether the circuit court properly issued and enforced it. We previously have held that
Syl. pt. 2, State ex rel. McGraw v. Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792 (footnote added). We further have clarified that
Syl. pt. 4, State ex rel. McGraw v. Telecheck Servs., Inc., 213 W.Va. 438, 582 S.E.2d 885 (2003). See also Syl. pt. 4, Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792 ("Findings of `material misrepresentation' or `actually misleading' are not necessary predicates to support a temporary injunction under the West Virginia Consumer Credit [and Protection] Act, W. Va.Code 46A-7-110 (1974).").
Applying these holdings to the facts of the case sub judice, we find that the circuit court did not err in its issuance of the subject temporary injunction or in rendering its ruling upholding the same. In the proceedings below, the Attorney General amply demonstrated, "by the existence of some credible evidence, ... that reasonable cause exists to believe that the [Petitioners are] engaging in or [are] likely to engage in conduct sought to be restrained."
Thereafter, by order entered October 7, 2011, the circuit court issued the subject temporary injunction specifically to "ENJOIN[] [Petitioners SPV I, SPV II, and CI] from engaging in any actions to collect debts acquired prior to the date that they became licensed" as debt collectors in West Virginia. The record reflects that the three named Petitioners were not licensed at the time that the Attorney General filed the instant enforcement action on June 3, 2010, and that they did not become licensed until some time thereafter. SPV I eventually became licensed as a West Virginia debt collector on October 13, 2010; SPV II acquired its West Virginia debt collection license on October 12, 2010; and CI achieved licensure on October 7, 2010.
From this record evidence, we conclude that the Attorney General adequately established the existence of "reasonable cause" that the named Petitioners had collected debts in this State without a license sufficient to support the circuit court's issuance of a temporary injunction to restrain such alleged misconduct. See Syl. pt. 2, Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792. The Attorney General was not required to prove that the named Petitioners actually had engaged in the alleged misconduct, but rather only that there exists reasonable evidence to believe such a violation has been committed. See Syl. pt. 4, Telecheck Servs., 213 W.Va. 438, 582 S.E.2d 885; Syl. pt. 2, Imperial Mktg., 196 W.Va. 346, 472 S.E.2d 792. Moreover, the relief granted by the circuit court was temporary in nature; it was not permanent. As such, the circuit court's issuance of the temporary injunction was designed to forestall the named Petitioners' alleged misconduct only during the pendency of the proceedings until the matter achieves its final resolution through either the substantiation or disproof of the Attorney General's claims of the Petitioners' alleged statutory violations. Therefore, we conclude that the temporary injunction imposed upon the Petitioners herein was properly issued in compliance with this Court's prior holding in Syllabus point 2 of State ex rel. McGraw v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d 792 (1996). Accordingly, we affirm the circuit court's ruling in this regard.
For the foregoing reasons, in Case Number 11-1564, the October 7, 2011, order entered by the Circuit Court of Kanawha County is affirmed, in part, and reversed, in part, and this case is remanded for further proceedings consistent with this opinion. Furthermore, in Case Number 12-0546, the March 20, 2012, order entered by the Circuit Court of Kanawha County is affirmed.
Syl. pt. 2, in part, Leslie Co. v. Cosner Coal Co., 131 W.Va. 483, 48 S.E.2d 332 (1948).