Menis E. Ketchum 2

This case involved a challenge by incumbent state senator Donna J. Boley to the eligibility of Frank Deem to appear on the Republican primary ballot for West Virginia's Third Senatorial District. Boley argued that Deem, a resident of Wood County, failed to satisfy the residency requirements in Article VI, Section 4 of the West Virginia Constitution and the Senate Redistricting Act of 2011, which bar both senators in a multi-county district from being chosen from the same county. Deem conceded the plain language made him ineligible but contended the provisions violated candidates' and voters' rights under the First and Fourteenth Amendments and parallel state constitutional provisions on speech, association, equal protection, and political participation. The court held that the residency requirements are constitutional, as they advance a compelling state interest, and issued a writ of mandamus directing the Secretary of State to withdraw Deem's certification.

electionscivil rights

The case involved Dr. Joe J. White, Jr.'s appeal of the administrative revocation of his driver's license for six months after a police officer at a sobriety checkpoint determined he was driving under the influence based on field sobriety tests, including the horizontal gaze nystagmus test, even though his blood alcohol content measured below the legal limit. The Supreme Court of Appeals of West Virginia reversed the circuit court's order upholding the revocation by the Division of Motor Vehicles Commissioner and remanded the matter for a new administrative hearing. The court confirmed that evidence from the horizontal gaze nystagmus test is admissible but held that White was entitled to challenge the lawfulness and procedural compliance of the checkpoint itself. The core reasoning centered on the need for proper notice and opportunity to contest the checkpoint's adherence to standardized guidelines under state rules, which had not been adequately addressed in the original hearing.

criminal lawprocedure

The case involved a workers' compensation claimant who suffered a back injury at work in 2003 and later sought to add major depressive disorder as a compensable condition, after a social worker and physician assistant diagnosed him with depression linked to the injury. The claims administrator and lower tribunals denied the request, citing lack of prior authorization for the psychiatric consultation, a pre-existing condition, and timing issues. The West Virginia Supreme Court of Appeals reversed the Board of Review's order, holding that claimants do not need prior authorization from the claims administrator for an initial psychiatric consultation under the applicable regulations. The court reasoned that the denial improperly prevented a proper psychiatric evaluation and report as required by W.Va.C.S.R. § 85-20-12.4, and remanded for the claimant to receive such an evaluation to determine compensability.

labor & employment

This case concerned a divorce action in which the family court awarded the wife permanent spousal support of $1,000 per month after considering the husband's VA disability benefits for PTSD along with his other income sources. The circuit court set aside that award and instead ordered $500 per month for 18 months, without specifically addressing the disability benefits or finding the family court's factual determinations clearly erroneous. The Supreme Court of Appeals of West Virginia reversed and remanded, adopting the view that VA disability benefits may be included among a payor spouse's recurring earnings or resources when calculating spousal support under state law and directing the circuit court to address the family court's findings and award with particularity.

family law

The case involved Shenandoah Sales & Services, Inc., a corporation that sought to appeal two Jefferson County real estate tax assessments to the circuit court after the county Board of Review and Equalization upheld the assessor's valuations. The corporation, through its vice-president David C. Tabb, filed the appeals without retaining a licensed attorney, prompting the circuit court to order that it must appear through counsel and to dismiss both appeals when no attorney entered an appearance. The Supreme Court of Appeals affirmed the dismissals. It held that a corporation is a separate legal entity that may not represent itself in circuit court through a non-lawyer agent, as doing so constitutes the unauthorized practice of law under long-settled authority. The Court rejected arguments that a hearing was required before dismissal or that a prior case allowed pro se corporate appearances.

taxesbusiness & regulatoryprocedure

The case concerned a home builder's attempt to compel arbitration of claims brought by 40 residents alleging injuries from excessive radon gas caused by defective or missing mitigation systems in 11 newly constructed homes. The residents asserted contract, warranty, negligence, fraud, and emotional distress claims, while the builder argued that purchase agreements containing arbitration clauses bound both signatories and non-signatories. The circuit court examined the agreements and concluded the arbitration provisions were ambiguous and unconscionable. The Supreme Court of Appeals denied the builder's petition for a writ of prohibition, holding that the record supported the lower court's findings that the parties had not reached a meeting of the minds on arbitration and that the clauses were unenforceable.

proceduretorts & liability

This case involved former employees of the Cabell County Jail who sued the county and related entities under the West Virginia Wage Payment and Collection Act after their jobs ended when the jail closed in 2003 and they were not paid for accumulated sick leave that the new regional facility would not honor. The circuit court entered judgment for the employees in the amount of $406,932.26, including liquidated damages and fees, but the Supreme Court of Appeals reversed. The court held that the accumulated sick leave did not qualify as unpaid wages under the Act because the county's policy expressly cancelled such leave upon termination of employment, and the employees therefore had no enforceable claim to payment for it.

labor & employment

The case involved a class action lawsuit by Diana Mey against Pep Boys and related companies, alleging that an automated voicemail message offering to buy a car listed on Craigslist violated the Telephone Consumer Protection Act (TCPA). The circuit court dismissed the complaint, finding that the message did not constitute an unsolicited advertisement because it responded to an invitation in the advertisement placed by the plaintiff's son. The West Virginia Supreme Court affirmed the dismissal, reasoning that the call was a legitimate inquiry about the advertised vehicle rather than an attempt to sell goods or services, and thus not prohibited under the TCPA; it also upheld the denial of post-judgment relief motions.

business & regulatoryprocedure

The case involved three consolidated disputes in which family members sued nursing homes for negligence allegedly causing residents' deaths, after signing admission agreements containing arbitration clauses that the nursing homes sought to enforce to dismiss the court actions. The court analyzed whether Section 15(c) of the West Virginia Nursing Home Act, which voids pre-dispute waivers of the right to sue, was preempted by Section 2 of the Federal Arbitration Act, and separately evaluated the common-law doctrine of unconscionability as applied to the clauses. It held that the state statute is preempted by the FAA but that Congress did not intend the FAA to cover arbitration clauses in pre-injury nursing home contracts for subsequent personal injury or wrongful death claims. The court further concluded that the arbitration agreements in two of the cases were unconscionable and unenforceable, while remanding the third for consideration of that issue.

healthcarefederal powerproceduretorts & liability

This case involved a dispute between two cable television companies in West Virginia, where the smaller company, Community Antenna Service, Inc., alleged that the larger company, Charter Communications VI, LLC, offered discounted "buy-back" rates only to customers who might switch providers in order to drive the smaller company out of business, in violation of state law prohibiting unduly discriminatory rates under the West Virginia Cable Television Systems Act. After a jury trial, the circuit court awarded compensatory and punitive damages to Community Antenna, and on appeal, the Supreme Court of Appeals of West Virginia affirmed. The court held that the Act provides a private cause of action for such violations and that the evidence supported the jury's findings that Charter's targeted pricing plans were unduly discriminatory and intended to harm competition. The decision was based on prior precedent requiring uniform rate structures and the specific facts showing the plans were selectively offered only in competitive areas.

business & regulatory

The case involved the Affiliated Construction Trades Foundation (ACT) filing a declaratory judgment action against the West Virginia Department of Transportation, Division of Highways (DOH), and Nicewonder Contracting, Inc., challenging the DOH's award of a contract for constructing sections of the King Coal Highway without competitive public bidding or a prevailing wage requirement, in alleged violation of state laws (W.Va. Code §§ 5-22-1 et seq. and 21-5A-1 et seq.) and federal laws (23 U.S.C. § 112 and 40 U.S.C. §§ 3141-3144). The circuit court dismissed the action, ruling that ACT lacked standing because it had not suffered a cognizable, redressable harm. The Supreme Court of Appeals of West Virginia reversed, holding that ACT had representative standing as an association to assert claims on behalf of its members (construction workers potentially affected by the wage and bidding practices), even without direct injury to the association itself, provided the members would have standing individually and the suit was germane to the association's purpose; the court remanded for further proceedings after clarifying West Virginia's rules on associational standing in declaratory actions. The core reasoning focused on principles of justiciability, adversity of parties, and precedent allowing associations to represent injured members without requiring the association to prove its own injury.

labor & employmentbusiness & regulatoryprocedure

The case concerned whether a movie theater in Logan, West Virginia, qualified for an economic opportunity tax credit under W.Va.Code § 11-13Q-19(a)(5) as a "destination-oriented recreation and tourism" business after investing millions and creating jobs. The State Tax Commissioner denied the credit, the Office of Tax Appeals affirmed the denial, but the circuit court reversed and the Supreme Court of Appeals affirmed, holding that the theater was entitled to the credit. The court reasoned that the statutory phrase was undefined, so it should be given its common, ordinary meaning drawn from dictionaries, and that the facts supported qualification because a substantial portion of patrons traveled from out of state or from outside the local area specifically to attend movies or in connection with tourism to the nearby Hatfield-McCoy Trail System.

taxesbusiness & regulatory

The case involved a pro se petitioner who sought a writ of mandamus after the circuit clerk failed to make an initial determination on his application to proceed in forma pauperis and the circuit court denied the application without explanation, preventing him from filing a civil action without prepaying fees. The court granted a writ of mandamus as moulded, holding that the clerk had a non-discretionary duty under W.Va. Code § 59-2-1, Rule 77(e) of the West Virginia Rules of Civil Procedure, and the Financial Guidelines to review the financial affidavit first and determine eligibility based on those guidelines. The circuit court erred by denying the application on grounds that the underlying action was frivolous rather than addressing the financial eligibility. Although inconsistencies in the petitioner's affidavits regarding real property ownership prevented a finding of a clear legal right to proceed in forma pauperis, the procedural failures by the clerk and court warranted the moulded writ to ensure proper review.

procedure

The case involved voters and property owners challenging Ronceverte's Ordinance 2009-01, which annexed about 295 acres including the Stoney Glen Subdivision and connecting roadways without an election under W.Va. Code 8-6-4. The circuit court dismissed the suit for lack of standing. The Supreme Court of Appeals reversed, holding that members of the Organ Cave Group had standing because they were qualified voters and freeholders within the annexed territory who were improperly excluded from the petition process required by the statute. As a result, the petitions and ordinance were deemed void from the beginning, though new annexation efforts were not barred.

procedureproperty

In O'Dell v. Stegall, the plaintiff claimed a prescriptive easement over a gravel lane providing access to his property and sued his neighbors for damages after they allegedly interfered with his use of the lane, which was the only access point for the defendants' landlocked property. A jury found for the plaintiff on the easement and related claims, and the circuit court entered judgment accordingly. On appeal, the West Virginia Supreme Court reversed, holding that the plaintiff failed to prove the elements of a prescriptive easement under clarified common-law standards that disfavor such easements. The court reasoned that the plaintiff's use was not shown to be adverse or exclusive, particularly where general public use of the lane raised a presumption of permissiveness, and that the plaintiff already had alternative access via his own driveway. The opinion also rejected the damages claims as unsupported once the easement was found not to exist.

property

The case involved the Clerks of the West Virginia Senate and House of Delegates seeking a writ of prohibition to stop a circuit court from enforcing orders that required them to remove or redact references to a gubernatorial pardon from the official legislative journals. The underlying dispute arose when an individual who received a pardon for prior misdemeanor convictions obtained a circuit court expungement order directing the destruction of related records, including journal entries, and the circuit court later expanded that order to cover the pardon itself. The Supreme Court of Appeals of West Virginia granted the writ, concluding that the circuit court exceeded its authority because legislative journals are under the exclusive control of the Legislature, their recitals are conclusive, and courts lack power to order alterations to them.

criminal lawprocedure

The case involved M & J Garage and Towing, Inc. suing the West Virginia State Police after the company was removed from a WVSP list of available wrecker services due to alleged customer overcharging. The circuit court dismissed the complaint for declaratory and injunctive relief, finding the police actions fair and equitable under internal policy. The Supreme Court of Appeals held that police detachments have reasonable discretion to dispatch registered towing services in fulfilling their law-enforcement mission but lack statutory authority to resolve billing disputes, which must instead be referred to the Public Service Commission. Because the WVSP had rescinded its separate wrecker list after the suit was filed, the court affirmed the dismissal order without granting injunctive relief.

business & regulatoryprocedure

The case involved the Shepherdstown Observer's FOIA request to the Jefferson County Clerk for copies of a citizen petition and signatures seeking a referendum to overturn a new county zoning ordinance. The Clerk refused disclosure, asserting the petition was not a public record under W.Va. Code 29B-1-2(4) because it was not prepared by a public body, and the circuit court dismissed the complaint on that ground while also citing voter secrecy concerns akin to a secret ballot. The West Virginia Supreme Court reversed and remanded, holding that the petition related to the conduct of the public's business and was subject to disclosure under the FOIA, distinguishing it from protected ballot secrecy and drawing on precedents regarding referendum petitions.

electionsfree speech

The case involved a former associate professor at West Virginia University at Parkersburg who sued the university in circuit court for unpaid wages and liquidated damages under the West Virginia Wage Payment and Collection Act based on additional teaching services performed under Faculty Overload Contracts. The circuit court dismissed the complaint, finding that the plaintiff failed to exhaust available administrative remedies and that the claims were barred by sovereign immunity under the state constitution. The Supreme Court of Appeals reversed, holding that the Wage Payment and Collection Act expressly permits an employee to file a wage claim directly in circuit court without first pursuing administrative remedies. The court further held that sovereign immunity does not bar such claims by state employees for unpaid wages. The case was remanded for further proceedings.

labor & employmentprocedure

The case involved a 14-year-old defendant convicted by a jury in Cabell County Circuit Court of first-degree murder in the shooting death of a woman during a disputed drug transaction, after the case was transferred from juvenile to adult jurisdiction. Following the verdict, the court added "with mercy" to the conviction at the state's request, resulting in a life sentence with mercy, and the defendant appealed on the ground that the circuit court erred by removing his court-appointed counsel before trial due to discovery violations. The Supreme Court of Appeals of West Virginia affirmed the conviction and sentence, holding that there was good cause for the counsel's removal and that the defendant received adequate representation from subsequent counsel. The court noted that the defendant had previously sought a writ of prohibition on related grounds, which was refused.

criminal lawprocedure