SER Fairmont State University Bd. of Governors v. Hon. Patrick N. Wilson

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2017 Term
_______________ FILED
November 1, 2017
No. 17-0630 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel.
FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS,
Petitioner
v.
THE HONORABLE PATRICK N. WILSON,
GALEN HANSEN,
ALBERT MAGRO, and
WEST VIRGINIA HIGHER EDUCATION POLICY COMMISSION,
Respondents
____________________________________________________________
Petition for Writ of Prohibition
WRIT GRANTED
____________________________________________________________
Submitted: October 17, 2017
Filed: November 1, 2017
Patrick Morrissey, Esq. Jerry A. Carbo, Esq.
Attorney General Shippensburg, Pennsylvania
Dawn E. George, Esq. Counsel for the Respondents,
Assistant Attorney General Galen Hanson and Albert Magro
Charleston, West Virginia
Counsel for the Petitioner Candace Kraus, Esq.
West Virginia Higher Education Policy
Commission
Charleston, West Virginia
Counsel for the Respondent,
West Virginia Higher Education Policy
Commission
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “Actions wherein a state agency or official is named, whether as a
principal party or third-party defendant, may be brought only in the Circuit Court of
Kanawha County.” Syl. Pt. 2, Thomas v. Bd. of Educ., 167 W.Va. 911, 280 S.E.2d 816
(1981), disapproved on other grounds by Hansbarger v. Cook, 177 W.Va. 152, 157 n.5,
351 S.E.2d 65, 70 n.5 (1986).
2. Under West Virginia Code § 14-2-2a [2004], a lawsuit in which
West Virginia University or Marshall University is made a party defendant shall be
brought in the circuit court of any county in which the cause of action arose, unless
otherwise agreed by the parties. This statutory exception to the general rule that an action
against a state agency may be brought only in Kanawha County applies exclusively to
lawsuits against West Virginia University or Marshall University.
i
Justice Ketchum:
The Fairmont State University Board of Governors (“Fairmont State”) and
the West Virginia Higher Education Policy Commission (“HEPC”) were sued in the
Circuit Court of Marion County by some faculty members of Fairmont State. Fairmont
State and the HEPC filed identical motions to dismiss the lawsuit based on, among other
things, improper venue. The circuit court denied both motions to dismiss.
Fairmont State requests that we issue a writ prohibiting the circuit court
from hearing the lawsuit against it and the HEPC. West Virginia’s venue statutes require
that the lawsuit against Fairmont State and the HEPC be filed in Kanawha County. The
circuit court exceeded its legitimate powers by holding otherwise. Therefore, we issue
the requested writ of prohibition.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On March 3, 2017, some faculty members at Fairmont State sued their
university’s Board of Governors and the HEPC in Marion County Circuit Court. The
lawsuit alleges that Fairmont State deliberated and decided on public matters in private
meetings in violation of the West Virginia Open Meetings Act (West Virginia Code §§ 6­
9A-1 to -12 [1975]) and that it did not fully comply with the plaintiffs’ Freedom of
Information Act request. In addition, the lawsuit alleges that the HEPC failed to exercise
its oversight responsibility over Fairmont State to prevent it from acting illegally. The
1
faculty members sought injunctive relief, a writ of mandamus, and a declaratory
judgment.
Fairmont State and the HEPC filed identical motions to dismiss the lawsuit
based on, among other things, improper venue. They asserted that, subject to exceptions
which do not apply in this case, lawsuits against state agencies must be filed in Kanawha
County. The circuit court denied Fairmont State’s and the HEPC’s motions to dismiss
and held that Marion County was a proper venue to hear the lawsuit. In response,
Fairmont State filed its petition for a writ of prohibition with this Court.
II.
STANDARD OF REVIEW
We use the following factors to decide whether to grant Fairmont State’s
requested writ of prohibition:
In determining whether to entertain and issue the writ
of prohibition for cases not involving an absence of
jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will
examine five factors: (1) whether the party seeking the writ
has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3)
whether the lower tribunal’s order is clearly erroneous as a
matter of law; (4) whether the lower tribunal’s order is an oft
repeated error or manifests persistent disregard for either
procedural or substantive law; and (5) whether the lower
tribunal’s order raises new and important problems or issues
of law of first impression. These factors are general
guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue.
Although all five factors need not be satisfied, it is clear that
2
the third factor, the existence of clear error as a matter of law,
should be given substantial weight.1
Furthermore, we have noted that a writ of prohibition may be used to preclude a circuit
court from hearing a lawsuit against a state agency when it does not have venue.2
III.
ANALYSIS
Fairmont State and the HEPC argue that Marion County is not a proper
venue for the lawsuit filed against them. Venue for lawsuits against state agencies is
controlled by West Virginia Code § 14-2-2 [1976], which, in pertinent part and with
emphasis added, provides: “(a) The following proceedings shall be brought and
prosecuted only in the circuit court of Kanawha County: (1) Any suit in which . . . a state
agency is made a party defendant.” Likewise, this Court has held: “Actions wherein a
state agency or official is named, whether as a principal party or third-party defendant
may be brought only in the Circuit Court of Kanawha County.”3 Syl. Pt. 2, Thomas v.
1
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12
(1996) (footnote added).
2
See, e.g., State ex rel. W.Va. Real Estate Appraiser Licensing & Cert. Bd.
v. Chiles, 234 W.Va. 125, 128, 763 S.E.2d 663, 666 (2014) (granting state agency’s writ
of prohibition on ground that Kanawha County was only proper venue for plaintiff’s
lawsuit against it); State ex rel. Stewart v. Alsop, 207 W.Va. 430, 435, 533 S.E.2d 362,
367 (2000) (“This Court has previously utilized a writ of prohibition to preclude a trial
court from proceeding to hear a case where venue was improper under [West Virginia’s
state agency venue statutes].”); State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W.Va. 662,
669, 434 S.E.2d 22, 29 (1993) (same).
3
See also, Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer,
Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(3) at 370 (4th ed.
(continued . . .)
3
Bd. of Educ., 167 W.Va. 911, 280 S.E.2d 816 (1981) (emphasis added), disapproved on
other grounds by Hansbarger v. Cook, 177 W.Va. 152, 157 n.5, 351 S.E.2d 65, 70 n.5
(1986). Indeed: “We have consistently held that the provisions of W.Va. Code § 14-2-2,
as amended, are exclusive to other venue provisions.”4
Both Fairmont State and the HEPC fall within the Legislature’s definition
of a state agency, which is, “a state department, board, commission, institution, or other
administrative agency of state government.”5 More importantly, the parties do not
dispute that Fairmont State and the HEPC are state agencies. Therefore, unless an
exception to the venue statute applies, West Virginia Code § 14-2-2 requires that the
lawsuit filed against Fairmont State and the HEPC be brought in Kanawha County.
Despite the clear directive of West Virginia Code § 14-2-2, the circuit court
found that venue was proper in Marion County under West Virginia Code § 14-2-2a
[2004]. Section 14-2-2a is limited to lawsuits against West Virginia University and
Marshall University; it provides, with emphasis added, that:
(a) Notwithstanding the provisions of section two of
this article [Section 14-2-2], any civil action in which . . .
West Virginia University . . . is made a party defendant, shall
2012) (“Pursuant to W.Va. Code § 14-2-2, actions wherein a state agency or official is
named, whether as a principal party or third-party defendant, may be brought only in the
circuit court of Kanawha County.”).
4
Vance v. Ritchie, 178 W.Va. 155, 157, 358 S.E.2d 239, 241 (1987).
5
W.Va. Code § 14-2-3 [1967] (emphasis added). In 2017, the Legislature
amended this statute in ways which do not affect this appeal.
4
be brought in the circuit court of any county wherein the
cause of action arose, unless otherwise agreed by the parties.
(b) Notwithstanding the provision of section two of
this article [Section 14-2-2], any civil action in which
Marshall University . . . is made a party defendant, shall be
brought in the circuit court of any county wherein the cause
of action arose, unless otherwise agreed by the parties.
The circuit court conceded in its order that the plain language of Section
14-2-2a mentions only West Virginia University and Marshall University. However, the
circuit court’s order continued: “It logically follows that actions against other universities
not specifically named in the statute should also be tried in the county in which the action
occurred. This argument is the most compelling and the one on which this Court’s
decision as to venue primarily turns.” In short, the circuit court extended Section 14-2-2a
to Fairmont State because it could think of no reason why the Legislature would treat
Fairmont State differently than West Virginia University or Marshall University.
We have repeatedly held that courts must not “arbitrarily . . . 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.”6 And because “the express mention of
one thing implies the exclusion of another[,]” we must presume that the Legislature
6
Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21
(2013). See also, Int’l Union of Operating Eng’rs v. L.A. Pipeline Constr. Co., 237
W.Va. 261, 266, 786 S.E.2d 620, 625 (2016); W.Va. Bd. of Educ. v. Marple, 236 W.Va.
654, 662, 783 S.E.2d 75, 83 (2015); Young v. Apogee Coal Co., LLC., 232 W.Va. 554,
561 753 S.E.2d 52, 59 (2013); Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va.
484, 491, 647 S.E.2d 920, 927 (2007).
5
purposely omitted Fairmont State from Section 14-2-2a based on its express mention of
West Virginia University and Marshall University.7 Indeed, Section 14-2-2a is plain and
unambiguous, so it must be applied, not interpreted or construed.8
We hold that under West Virginia Code § 14-2-2a [2004], a lawsuit in
which West Virginia University or Marshall University is made a party defendant shall
be brought in the circuit court of any county in which the cause of action arose, unless
otherwise agreed by the parties. This statutory exception to the general rule that an action
against a state agency may be brought only in Kanawha County applies exclusively to
lawsuits against West Virginia University or Marshall University. Neither West Virginia
University nor Marshall University were made parties to this lawsuit. Therefore, Section
14-2-2a does not apply to this case.
Having established that West Virginia Code § 14-2-2a does not apply to
this lawsuit, we address another statute the circuit court relied on to conclude that Marion
County was a proper venue. The faculty members’ lawsuit alleges, in part, that Fairmont
State violated West Virginia’s Open Meetings Act set out in West Virginia Code § 6-9A­
1 to -12 [1975]. Under West Virginia Code § 6-9A-6 [1999], “[t]he circuit court in the
county where the public agency regularly meets has jurisdiction to enforce [the West
7
Syl. Pt. 3, in part, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710
(1984).
8
See Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384
(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to
be accepted and applied without resort to interpretation.”).
6
Virginia Open Meetings Act] upon civil action[.]”9 The circuit court incorrectly
presumed that, because it had subject matter jurisdiction over the lawsuit, it had venue as
well.
It is well-established that: “The terms ‘venue’ and ‘jurisdiction’ are not
synonymous.”10 “Jurisdiction is a court’s inherent power to decide a case; venue,
however, designates the particular county in which a court having jurisdiction may
properly hear and determine the case.”11 Because “[c]ourts must presume that a
legislature says in a statute what it means and means what it says there[,]” we decline to
insert “venue” into Section 6-9A-6 when the Legislature clearly limited the statute to
“jurisdiction.” The Legislature designated Kanawha County as the proper venue for suits
against state agencies.
However, that is not to say that a circuit court outside of Kanawha County
is always barred from hearing a lawsuit against a state agency for lack of venue. For
example, the Legislature has enacted exceptions to its rule that state agencies may be
sued only in Kanawha County, none of which apply here.12
9
Emphasis added.
10
Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, supra, §
12(b)(3) at 363 (citing W. Va. Secondary Sch. Activities Comm’n v. Wagner, 143 W.Va.
508, 520, 102 S.E.2d 901, 909 (1958) (“There is a distinction between jurisdiction and
venue and the two terms are not synonymous.”)).
11
Syl. Pt. 8, Brooke B., 230 W.Va. at 363, 738 S.E.2d at 29.
12
See, e.g., W.Va. Code § 14-2-2a (pertaining to lawsuits in which West
Virginia University or Marshall University are made party defendants); W.Va. Code §
(continued . . .)
7
Furthermore, objections to venue may be waived by the defendant.13 Under
West Virginia Rule of Civil Procedure 12(h)(1) [1998], “A defense of . . . improper
venue is waived (A) if omitted from a motion in the circumstances described in
subdivision (g) [Consolidation of Defenses in Motion], or (B) if it is neither made by
motion under this rule nor included in a responsive pleading or an amendment thereof[.]”
Put simply, “[o]rdinarily, [a defendant’s] failure to object specifically to venue before
pleading to the merits constitutes waiver of the objection.”14
When a state agency that is made a defendant in a lawsuit filed outside of
Kanawha County fails to object to venue, and thereby waives its objection to venue, the
circuit court in which the lawsuit was filed has subject matter jurisdiction to enforce the
West Virginia Open Meetings Act under Section 6-9A-6. Because Fairmont State and
the HEPC raised improper venue in their motions to dismiss, it is undisputed that they did
not waive their objection to venue. Therefore, the circuit court erred by relying upon
Section 6-9A-6 to find that Marion County was a proper venue for this lawsuit.15
14-2-2(b) (pertaining to lawsuits seeking injunctive relief for government taking of real
property).
13
See State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 233, 366 S.E.2d
738, 741 (1988) (“Unlike jurisdiction, . . . venue may be conferred by consent or
waiver[.]”).
14
Hansbarger, 177 W.Va. at 157, 351 S.E.2d at 71.
15
Before we dispose of this case, we note that Fairmont State and the
HEPC asserted an additional ground for its requested writ of prohibition. They claim that
West Virginia Code § 55-17-3(a)(1) [2008] required the plaintiffs to give them thirty
days presuit notice before filing their complaint, and that the Plaintiffs failed to do so.
(continued . . .)
8
IV.
CONCLUSION
The lawsuit filed against Fairmont State and the HEPC must be filed in the
Circuit Court of Kanawha County. Therefore, the circuit court exceeded its legitimate
powers by holding that venue for this lawsuit is proper in Marion County.
Writ Granted.
Because we grant Fairmont State’s requested writ of prohibition on grounds of venue, we
decline to address the issue of presuit notice.
9