Jay Folse v. Glenn Elliott ( 2022 )

FILED
February 1, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Jay Folse,
Plaintiff Below, Petitioner
vs.) No. 20-0677 (Ohio County 20-C-455)
Glenn Elliott,
Defendant Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Jay Folse appeals the August 27, 2020, order of the Circuit
Court of Ohio County dismissing his civil action pursuant to the West Virginia Freedom of
Information Act (“FOIA”), West Virginia Code §§ 29B-1-1 to -7. Respondent Glenn Elliott, mayor
of the City of Wheeling (“City”), by counsel Rosemary Humway-Warmuth, filed a summary
response in support of the circuit court’s order.
The 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 that the circuit court failed to make findings of fact and conclusions of
law sufficient to permit meaningful appellate review of the court’s ruling. For this reason, this case
is remanded to the circuit court for the entry of an order that includes sufficient findings.
Petitioner owns property at 305 South Broadway Street in Wheeling, West Virginia. On
January 28, 2020, petitioner submitted a FOIA request to the City. Petitioner requested that the
City provide him, in electronic format, information within nineteen subject areas: (1) “[a]ll
communication and information as to why the electrical meters were removed from the house at
305 S[outh] Broadway St[reet]”; (2) “[a]ll communication about [petitioner]”; (3) “[a]ny
communication or information about threats made to city employees by [petitioner]”; (4) “[a]ny
information on why an individual can be arrested in Wheeling for doing plumbing work on his
own house if he is not a master plumber”; (5) “[a]ny information about why a contractor’s license
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is needed to work on your own house”; (6) “[a]ny information or communication about code
inspectors being able to force entry into homes without the owner[’]s or occupant[’]s consent”; (7)
“[a]ny information or communication about why a picture of [petitioner] was placed at the entrance
of the building at 1500 Chapline St[reet]”; (8) “[a]ll communication between city employees and
[American Electric Power (‘AEP’)] employees”; (9) “[a]ny information or communication on why
the U[.]S[.] or state constitution does not apply to city employees”; (10) “[a]ny communication
between city employees and the state [d]epartment of [l]abor”; (11) “[a]ll building permits
requested and issued from the last five years”; (12) “[a]ll pay records for all city employees for the
last five years”; (13) “[a]ll information, applications, and communication about your latest job
opening and hiring process for a code inspector” (14) “[a]ll information and communication about
the transfer of property on the 1400 block of Market St[reet],” including “[a]ny information as to
why this sale does not have to be held at public auction as required by [the] state code”; (15) “[a]ll
communication and information about the purchase of property owned by Americo[, Inc.] at 58
19th St[reet],” including “all communication between members of the public and between
shareholders of Americo[, Inc.]”; (16) “[a]ny communication or information about Don Nickerson
being able to act as a [municipal] judge and run for and be elected as a county commissioner,”
including “[a]ny information or communication regarding the legality of this . . . possible conflict”;
(17) “[a]ll communication between city employees and employees of the Robinson and McElwee
law firm”; (18) “[a]ll communication between anyone with the last name Bordas or employees of
the law firm Bordas & Bordas”; and (19) “[a]ny information about the mental illnesses that
[counsel for the City] has been diagnosed with.” 1
The City responded to petitioner’s FOIA request by letter dated February 5, 2020. The City
claimed that, while blank applications and the job posting for code inspector were available from
its human resources department, submitted applications were exempt from disclosure pursuant to
West Virginia Code § 29B-1-4(a)(2). 2 Similarly, the City stated that, while the salary scale for
city employees was also available from the human resources department, individual employee
payroll records were exempt under West Virginia Code § 29B-1-4(a)(2). More generally, the City
found petitioner’s nineteen specific requests to be overly broad and burdensome and to include
queries about information that the City believed did not constitute public records. To the extent
that the City had records responsive to petitioner’s requests, the City invited petitioner to schedule
an appointment to come to the city offices to review available records.
Dissatisfied with the City’s response to his FOIA request, petitioner filed a civil action on
1
Counsel for the City serves as the city solicitor.
2
West Virginia Code § 29B-1-4(a)(2) exempts from disclosure
[i]nformation of a personal nature such as that kept in a personal, medical, or similar
file, if the public disclosure of the information would constitute an unreasonable
invasion of privacy, unless the public interest by clear and convincing evidence
requires disclosure in this particular instance: Provided, That this article does not
preclude an individual from inspecting or copying his or her own personal, medical,
or similar file.
2
February 24, 2020, in the Circuit Court of Ohio County, alleging that the City was improperly
withholding the documents he requested. Petitioner sought release of all such documents and to be
awarded his costs in bringing the civil action pursuant to West Virginia Code § 29B-1-7. 3
Following an extension of time in which to respond to petitioner’s complaint, the City filed
a motion to dismiss the civil action pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure for a failure to state a claim upon which relief can be granted. The City argued that the
civil action should be dismissed or, alternatively, that “[petitioner]’s proceedings should at the
very least be stayed pending his review of documents which review was offered to him in a timely
response by the City to which he has not availed himself.” Thereafter, petitioner filed a response
to the City’s motion, stating that he did not feel comfortable entering the city offices. According
to petitioner, “[t]here were already claims made by an unknown city employee that [petitioner]
threatened them” and that the city code enforcement officer “claimed that [petitioner] barged into
his office in a threatening manner.”
By order entered on June 22, 2020, the circuit court denied the motion to dismiss. Of
petitioner’s nineteen specific requests, the circuit court found that the City did not have to respond
to nine of them. The circuit court determined that information about the job posting and the hiring
process for a code inspector and the pay records for city employees were exempt from disclosure.
The circuit court further found that documents about communications with the law firms
mentioned in petitioner’s FOIA request did not need to be disclosed because they may contain
attorney-client communications. Additionally, the circuit court determined that petitioner’s
requests for city employee communications with AEP and the West Virginia Division of Labor
and for building permits “from the last five years” were not specific enough to necessitate a
response from the City. Finally, the circuit court found that petitioner’s requests about the
applicability of the United States and West Virginia Constitutions to city employees and about the
mental health of the city solicitor did not constitute public records requests.
The circuit court directed the City to respond to the ten remaining queries set forth in
petitioner’s FOIA request. Accordingly, the circuit court ruled that
[o]n or before July 31, 2020, [the City] shall furnish proper and reasonable
opportunities to [petitioner] for inspection and examination of the records at the
City of Wheeling offices, and reasonable facilities for making memoranda or
abstracts therefrom, during the usual business hours. [Petitioner] and [the City]
shall communicate in an effort to agree upon reasonable dates and times during
which [petitioner] may inspect the documents approved by the [c]ourt. [The City]
may make reasonable rules and regulations necessary for the protection of the
3
West Virginia Code § 29B-1-7 provides that
[a]ny person who is denied access to public records requested pursuant to this
article and who successfully brings a suit filed pursuant to section five of this article
shall be entitled to recover his or her attorney fees and court costs from the public
body that denied him or her access to the records.
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records and to prevent interference with the regular discharge of [its] duties. If the
records requested exist in magnetic, electronic[,] or computer form, [the City] shall
make copies available on magnetic or electronic media, if so requested. [The City]
may establish fees reasonably calculated to reimburse it for its actual cost[s] in
making reproductions of records in accordance with FOIA.
Believing that the circuit court disposed of his FOIA request in its June 22, 2020, ruling,
petitioner filed a motion for the entry of a final order so that he could appeal the court’s decision.
By order entered on August 12, 2020, the circuit court denied the motion, finding that petitioner’s
civil action remained on its active docket as its June 22, 2020, order directed the parties to arrange
for the City to provide petitioner with the documents it found he lawfully requested. The circuit
court further noted that petitioner engaged in improper contact with the court by “directly
contact[ing] the [c]ourt’s offices via telephone regarding this case” on more than one occasion.
The circuit court ordered petitioner to stop his improper conduct.
On August 26, 2020, the City provided the circuit court with a case status update with
attachments. One of those attachments was a June 24, 2020, e-mail from petitioner to the City. In
the e-mail, petitioner referred to the circuit court’s June 22, 2020, order as “a total joke” and “the
worst order I have ever read.” Petitioner further disparaged the circuit court by referring to the
presiding judge as “a total disgrace to the legal community.” 4 The other attachments were July 13,
2020, and July 23, 2020, letters from the City to petitioner. In both letters, pursuant to the circuit
court’s June 22, 2020, order, the City asked petitioner to provide dates and times when he would
be available to come to the city offices to review those documents the court found he properly
requested and to make copies if he so chose. The City renewed its motion to dismiss the civil
action, arguing that petitioner “appeared not to be cooperative in carrying out the directives” set
forth in the June 22, 2020, order. The City suggested that, if the circuit court considered the
attachments to its case status update, it would be proper to convert its renewed motion into a motion
for summary judgment.
On August 27, 2020, the circuit court entered the following order granting the renewed
motion to dismiss:
This matter comes before the [c]ourt on [the City]’s [case status update,]
filed August 26, 2020, in the above matter. Based upon the exhibits attached to the
[case status update], it appears that [petitioner] has failed and refused to avail
himself to the remedies provided to him in the [c]ourt’s June 22, 2020 [o]rder. It is
accordingly
ORDERED that [the City]’s [m]otion to [d]ismiss shall be and is hereby
GRANTED[,] and this matter is stricken from the [c]ourt’s active docket. It is
further
4
In another e-mail from petitioner also attached to the City’s case status update, petitioner
commented that he was not sure “who in their right mind” voted for the reelection of the City’s
mayor.
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ORDERED that the [c]lerk shall provide an attested copy of this [o]rder to
[petitioner] and counsel for [the City].
To which rulings the respective objections of the parties are hereby noted
and preserved.
Petitioner now appeals the circuit court’s August 27, 2020, order dismissing his civil
action. “Only matters contained in the pleading can be considered on a motion to dismiss under
Rule 12(b) [of the West Virginia Rules of Civil Procedure] . . . and if matters outside the pleading
are presented to the court and are not excluded by it, the motion should be treated as one for
summary judgment and disposed of under Rule 56 [of the Rules of Civil Procedure].” Syl. Pt. 4,
in part, U.S. Fidelity & Guar. Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 703 (1965), overruled on
other grounds, Sprouse v. Clay Commc’n, Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975). As it is
plain on the face of the August 27, 2020, order that the circuit court relied upon the attachments to
the City’s case status update in dismissing the civil action, we construe the order as awarding the
City summary judgment.
Rule 56(c) provides that summary judgment shall be granted where “there is no genuine
issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
In Syllabus Point 3 of Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232(1997), overruled on other grounds, Sostaric v. Marshall, 234 W. Va. 449, 766 S.E.2d 396 (2014),
we held that
[a]lthough our standard of review for summary judgment remains de novo,
a circuit court’s order granting summary judgment must set out factual findings
sufficient to permit meaningful appellate review. Findings of fact, by necessity,
include those facts which the circuit court finds relevant, determinative of the issues
and undisputed.
Even if we did not construe the order as awarding summary judgment and instead reviewed it as
an order dismissing the action for “[a] failure to state a claim upon which relief can be granted”
pursuant to Rule 12(b)(6), in P.T.P., IV by P.T.P, III v. Board of Education of the County of
Jefferson, 200 W. Va. 61, 488 S.E.2d 61 (1997), we extended the holding set forth in Syllabus
Point 3 of Lilly to require sufficient findings to support dismissal orders. Id. at 65, 488 S.E.2d at
65; see id. at 62, 448 S.E.2d at 62, syl. pt. 1.
On appeal, the parties dispute various aspects of petitioner’s FOIA request. However, they
fail to address the absence of findings in the circuit court’s August 27, 2020, order relevant to
either the summary judgment standard set forth in Rule 56(c) or the dismissal standard set forth in
Rule 12(b)(6).
Based upon our review of the August 27, 2020, order, we surmise that the civil action was
dismissed as a sanction for petitioner’s refusal to comply with the June 22, 2020, order that granted
him access to those documents it found that he lawfully requested. Petitioner argues that he
continues to be hesitant about entering the city offices to view documents for the same reasons he
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gave below. We note that the circuit court did not state that it was sanctioning petitioner with the
dismissal of his civil action due to non-compliance with the August 27, 2020, order. Rather, the
single finding the circuit court made to support the dismissal is suggestive of the court’s reasoning.
If the circuit court intended to dismiss the civil action as a sanction for misconduct, we
have held that a dismissal may be entered for “serious litigation misconduct pursuant to the
inherent powers of the court . . . when trial court findings adequately demonstrate and establish
willfulness, bad faith or fault of the offending party.” Syl. Pt. 7, State ex rel. Richmond Am. Homes
of W. Va., Inc. v. Sanders, 226 W. Va. 103, 697 S.E.2d 139 (2010) (emphasis added). In Syllabus
Point 6 of Sanders, we held, in pertinent part, that
[t]o determine what will constitute an appropriate sanction, the court may consider
the seriousness of the conduct, the impact the conduct had in the case and in the
administration of justice, any mitigating circumstances, and whether the conduct
was an isolated occurrence or was a pattern of wrongdoing throughout the case.
Id. (quoting Syl. Pt. 2, Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996)).
The only occurrence of misconduct the circuit court relied upon in its August 27, 2020,
order was petitioner’s refusal to comply with the June 22, 2020, order. While the circuit court’s
August 12, 2020, order found that petitioner had engaged in improper conduct by attempting to
directly contact the court, the August 27, 2020, order does not mention this behavior or whether
petitioner complied with the directive to stop engaging in that behavior. This information could
impact whether his non-compliance with the June 22, 2020, order was willful pursuant to Syllabus
Point 7 of Sanders.
Therefore, while the circuit court’s sole finding in the August 27, 2020, order suggests that
it intended to dismiss the civil action due to misconduct, the order contains insufficient findings to
permit meaningful appellate review of its decision. In asking the circuit court to dismiss the civil
action a second time, the City renewed a Rule 12(b)(6) motion and suggested that the motion could
be granted pursuant to Rule 56. The standard set forth in either of those rules does not govern the
sanctioning of a party for misconduct. Accordingly, we remand this case to the circuit court for
the entry of an order that includes sufficient findings to explain the basis of either its dismissal of
the civil action or the award of summary judgment to the City. 5
Remanded with Directions.
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In remanding this case for sufficient findings to allow meaningful appellate review of the
circuit court’s decision, we note that, if the circuit court’s intent is to dismiss the civil action due
to misconduct, we recently found that “nothing in Bartles or Sanders requires a hearing” on that
issue. Crystal Mountain W. Va., LLC v. Cty. Comm’n of Ohio Cty., No. 19-0482, 2020 WL
3408103, at *6 n.13 (W. Va. Jun. 18, 2020) (memorandum decision).
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ISSUED: February 1, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice William R. Wooton
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