Davis, Robin Jean

Palmer, Louis J., Jr.

English

The Research Repository @ WVU (West Virginia University)

Volume 102 Issue 5 Issue 5, A Tribute to Thomas E. McHugh: An Encyclopedia of Legal Principles From His Opinions as a Justice of the West Virginia Supreme Court of Appeals Article 25 June 2002 West Virginia Supreme Court of Appeals Original Jurisdiction Robin Jean Davis West Virginia Supreme Court of Appeals Louis J. Palmer Jr. Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Jurisdiction Commons Recommended Citation Robin J. Davis & Louis J. Palmer Jr., West Virginia Supreme Court of Appeals Original Jurisdiction, 102 W. Va. L. Rev. (2002). Available at: https://researchrepository.wvu.edu/wvlr/vol102/iss5/25 This A Tribute to Thomas E. McHugh: An Encyclopedia of Legal Principles From His Opinions as a Justice of the West Virginia Supreme Court of Appeals is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. A TRIBUTE TO THOMAS E McHUGHappellate court comes too late and usually will be disregarded. ' 1378K. Recusal of JusticeJustice McHugh stated in State ex rel. Hash v. McGraw1377 that[t]he administrative actions of the Chief Justice of the SupremeCourt of Appeals of West Virginia in a particular case do notnecessarily represent a pecuniary or personal interest that wouldaffect the Chief Justice's impartiality, nor render the Chief Justiceincapable of hearing the same case in ajudicial capacity.1378L. Unpublished OpinionsJustice McHugh stated in Pugh v. Workers' CompensationCommissioner1379 that "[u]npublished opinions of this Court are of no precedentialvalue and for this reason may not be cited in any court of this state as.precedent orauthority, except to support a claim of res judicata, collateral estoppel, or law ofthe case."1380M. Interlocutory OrdersJustice McHugh stated in State ex rel. Arrow Concrete Co. v. Hill1381 that"[o]rdinarily the denial of a motion for failure to state a claim upon which reliefcan be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) isinterlocutory and is, therefore, not immediately appealable.'1382XXI. WEST VIRGINIA SUPREME COURT OF APPEALS ORIGINAL JURISDICTIONA. Writ of MandamusJustice McHugh held in West Virginia Board of Education v. Hechler1383that "[m]andamus may be used to attack the constitutionality or validity of a statute1376 Id. at Syl. Pt. 1.1377 376 S.E.2d 634 (W. Va. 1988).1378 Id. at Syl. Pt. 2.1379 424 S.E.2d 759 (W. Va. 1992).1380 Id. at Syl. t 3.1381 460 S.E.2d 54 (W. Va. 1995).1382 Id. at Syl. PL 2.1383 376 S.E.2d 839 (W. Va. 1988).Special]1Davis and Palmer: West Virginia Supreme Court of Appeals Original JurisdictionDisseminated by The Research Repository @ WVU, 2002WEST VIRGINIA LAW REVIEWor ordinance."' 384In State ex rel. Robinson v. Michael,1385 Justice McHugh held that "[a] writof mandamus will not lie to compel the prosecuting attorney to represent a party ina civil contempt action arising out of the failure by a party to comply with a divorcedecree which orders support payments."138 6Justice McHugh stated in Graf v. Frame138 7 that "[o]rdinarily, inmandamus proceedings, costs [and reasonable attorney fees] will not be awardedagainst a public officer who is honestly and in good faith endeavoring to performhis duty as he conceives it to be.,1388The issue in Vance v. Ritchie 389 involved the appropriateness of amandamus action to compel institution of condemnation proceedings. JusticeMcHugh ruled that[a]n action in mandamus to compel the State Commissioner ofHighways to institute condemnation proceedings and pay aproperty owner just compensation for damage done to his or herreal property as a result of road work conducted by the StateDepartment of Highways or agents thereof is within thecontemplation of W.Va. Code, 14-2-2(b) [1976] relating to "[a]nyproceeding for injunctive or mandamus relief involving the taking,title, or collection for or prevention of damage to real property"which establishes proper venue in the "circuit court of the countyin which the real property affected is situate.' 390The case of Staton v. Hrko1391 called upon Justice McHugh to addressseveral matters pertaining to mandamus. The court held that "[a]ll factualallegations properly pleaded in the petition for a writ of mandamus which are notdenied in the answer are deemed to be admitted.' 1392 It was said that "[tiheprocedure in effect before the adoption of the Rules of Civil Procedure in 1960 isapplicable to extraordinary proceedings such as mandamus proceedings.'1393Justice McHugh noted that "[a] statute in effect prior to the Rules of CivilProcedure and which still applies to a mandamus proceeding is W.Va. Code, 57-4-11384 Id. at Syl. Pt. 4.1385 276 S.E.2d 812 (W. Va. 1981).1386 Id. at Syl. Pt. 7.1387 352 S.E.2d 31 (W. Va. 1986).1388 Id. at Syl. Pt. 5 (alteration in original).1389 358 S.E.2d 239 (W. Va. 1987).1390 Id. at Syl. (alteration in original).1391 379 S.E.2d 159 (W. Va. 1989).1392 Id. at Syl. Pt. 1.1393 Id. at Syl. Pt. 2.[Vol. 1022West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 25https://researchrepository.wvu.edu/wvlr/vol102/iss5/25A TRIBUTE TO THOMAS E. McHUGH[1931]. Under this statute depositions are authorized or permitted to be taken."'1394The court further indicated that "[s]pecial circumstances exist, authorizing thetaking of a deposition in an action not covered by the Rules of Civil Procedure,when the knowledge of a particular matter rests wholly with the person or personsto be deposed, especially when accompanied by the likelihood of hostility orinterest. "'395 Staton concluded that[m]andamus lies when a court or other tribunal, based upon amisapprehension of the law, refused to exercise certainjurisdiction or discretion because the court or other tribunalbelieved that it did not possess such jurisdiction or discretion. Inthat situation mandamus lies to compel the court or other tribunalto exercise the jurisdiction or discretion but does not ordinarily lieto direct the manner in which to exercise discretion.1396Justice McHugh said in State ex rel. Lambert v. Cortellessi 397 that[m]andamus lies to compel a county commission to "give dueconsideration to the duties, responsibilities and work required ofthe assistants, deputies and employees" of a county officer, asrequired by W.Va. Code, 7-7-7, as amended, where the countycommission has arbitrarily fixed the overall budget of a countyofficer without having consulted with the county officer as to theamount of funds which is "reasonable and proper" for theperformance of the statutory duties of his or her office. 398The court also ruled that "[w]here a county commission arbitrarily fixes acounty officer's budget without complying with the provisions of W.Va. Code,7-7-7, as amended, the county commission is responsible for the county officer'sreasonable attorney's fees incurred in a mandamus proceeding to compelcompliance with that statute." 1399Justice McHugh held in Pell v. Board of Education of Monroe County1400that[p]ursuant to W.Va. Code, 18-5-13 [1990], a county board ofeducation has the authority to close and consolidate schools.1394 Ma at Syl. Pt. 3.1395 Id. at Syl. Pt. 4.1396 Staton, 379 S.E.2d at Syl. Pt. 5.1397 386 S.E.2d 640 (W. Va. 1989).1398 Id. at Syl. Pt. 1.1399 Id. at Syl. Pt. 5.1400 426 S.E.2d 510 (W. Va. 1992).Special]3Davis and Palmer: West Virginia Supreme Court of Appeals Original JurisdictionDisseminated by The Research Repository @ WVU, 2002WEST VIRGINIA LAW REVIEWHowever, mandamus will lie to control a county board ofeducation in the exercise of its discretion upon a showing ofcaprice, passion, partiality, fraud, arbitrary conduct, some ulteriormotive, or misapprehension of the law. If a comprehensiveeducational facilities plan has been developed by a county boardof education, approved by the state board of education, submittedto a regional educational services agency, granted approval forfunding on a priority basis by the state school building authority,satisfied all requirements for approval, notice, and hearingpursuant to W.Va. Code, 18-5-13a [1991], and contracts have beenentered into to begin implementation of such plan, then it isarbitrary and capricious for a county board of education, with noarticulated reasons, to take action that would cause the plan to notbe implemented or to replace such plan with an alternative plan,where such action would place in jeopardy the possibility ofobtaining the approved funding.1 40 1B. Writ of ProhibitionThe case of State ex rel. Maynard v. Bronson140 2 involved the issuance of awrit of prohibition in the context of dismissed indictments. Justice McHughindicated that[p]rohibition is not a proper remedy to challenge the dismissal ofindictments by a judge of a circuit court acting pursuant to theWest Virginia Agreement on Detainers, W.Va. Code, 62-14-1, etseq., where the judge of the circuit court had jurisdiction of thesubject matter in controversy, and nothing in the record indicatesthat the judge exceeded his legitimate powers." 1403Justice McHugh relied on the decision in Hinkle v. Black,1404 to addresswrit of prohibition issues in State ex rel. Oldaker v. Fury.140 5 Oldaker stated that[i]n determining whether to grant a rule to show cause inprohibition when a court is not acting in excess of its jurisdiction,this Court will look to the adequacy of other available remediessuch as appeal and to the over-all economy of effort and moneyamong litigants, lawyers and courts; however, this Court will useprohibition in this discretionary way to correct only substantial,1401 Id. at Syl. Pt. 2.1402 277 S.E.2d 718 (W. Va. 1981).1403 Id. at Syl.1404 262 S.E.2d 744 (W. Va. 1979).1405 317 S.E.2d 513 (W. Va. 1984).[Vol. 1024West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 25https://researchrepository.wvu.edu/wvlr/vol102/iss5/25A TRIBUTE TO THOMAS E. McHUGHclear-cut, legal errors plainly in contravention of a clear statutory,constitutional, or common law mandate which may be resolvedindependently of any disputed facts and only in cases where thereis a high probability that the trial will be completely reversed ifthe error is not corrected in advance.14 6Justice McHugh restated the holding of Oldaker in the single syllabus ofhis decision in the case of Ash v. Twyman.' 4 7Justice McHugh stated in Peyatt v. Kopp1408 that "[p]rohibition does not lieagainst a prosecuting attorney to restrain him from presenting a case to a grand jurywhere the prosecuting attorney, in performing his statutory duties, has probablecause to believe that a criminal offense has been committed and that the defendantcommitted the offense." 1409C. Certified QuestionsIn Kincaid v. Mangum1410 Justice McHugh held:When a certified question is not framed so that this Court is ableto fully address the law which is involved in the question, thenthis Court retains the power to reformulate questions certified to itunder both the Uniform Certification of Questions of Law Actfound in W.Va. Code, 51-lA-l, et seq. and W.Va. Code, 58-5-2[1967], the statute relating to certified questions from a circuitcourt of this State to this Court.1411D. Writ of Habeas CorpusRelying on State ex rel. Pingley v. Coiner,1412 Justice McHugh held inState ex rel. J.D.W. v. Harris1413 that "[h]abeas corpus lies to secure relief fromconditions of imprisonment which constitute cruel and unusual punishment inviolation of the provisions of Article I, Section 5, of the Constitution of WestVirginia and of the Eighth Amendment to the Constitution of the United1406 Id. at Syl.1407 Syl., Ash v. Twyman, 324 S.E.2d 138 (W. Va. 1984).1408 428 S.E.2d 535 (W. Va. 1993).1409 ld. at Syl. Pt. 2.1410 432 S.E.2d 74 (W. Va. 1993).1411 Id. at Syl. Pt. 3.1412 186 S.E.2d 220 (W. Va. 1972).1413 319 S.E.2d 815 (W. Va. 1984).Special]5Davis and Palmer: West Virginia Supreme Court of Appeals Original JurisdictionDisseminated by The Research Repository @ WVU, 2002WEST VIRGINIA LAW REVIEWStates." 414In Bowman v. Leverette,1415 Justice McHugh was called upon to examinethe use of habeas corpus to challenge a conviction based upon prior federal andstate supreme court decisions that prohibited shifting the burden of proof on anelement of an offense to a defendant. The Bowman court held thatW.Va. Code, 53-4A-1(d) [1967] allows a petition forpost-conviction habeas corpus relief to advance contentions orgrounds which have been previously adjudicated only if thosecontentions or grounds are based upon subsequent court decisionswhich impose new substantive or procedural standards in criminalproceedings that are intended to be applied retroactively.1416Bowman went on to address prior precedents on shifting the burden ofproof to the defendant and held that "[tihe decisions in Sandstrom v. Montana, 442U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and State v. O'Connell, [163]W.Va. [366], 256 S.E.2d 429 (1979), do not require full retroactiveapplication.'1417Justice McHugh held in State ex rel. Dye v. Bordenkircher418 that "[w]hena stay of proceedings under W.Va. Code, 62-7-2 [1931], is in effect the propermethod of seeking bail pending appeal is by a petition for habeas corpus to thisCourt." 14 19XXII. CONSTITUTIONAL LAWA. Retroactive Application of Constitutional PronouncementsJustice McHugh indicated in Kincaid v. Mangum 1420 that "[w]hen thisCourt issues an interpretation of the W.Va. Const. which was clearly notforeshadowed, and when retroactive application of the new interpretation wouldexcessively burden the government's ability to carry out its functions, then the newconstitutional interpretation will apply prospectively." 14211414 Id. at Syl. Pt. 2.1415 289 S.E.2d 435 (W. Va. 1982).1416 Id. at Syl. Pt. 1.1417 Id. at Syl. Pt. 2.1418 284 S.E.2d 863 (W. Va. 1981).1419 Id. at Syl. Pt. 3.1420 432 S.E.2d 74 (W. Va. 1993).1421 Id. at Syl. Pt. 5.[Vol. 1026West Virginia Law Review, Vol. 102, Iss. 5 [2002], Art. 25https://researchrepository.wvu.edu/wvlr/vol102/iss5/25

West Virginia Supreme Court of Appeals Original Jurisdiction

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West Virginia Supreme Court of Appeals Original Jurisdiction

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