Sen.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 2 earn. :fll? IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST 'l I'll: STATE OF WEST VIRGINIA, ex rel., r: I. c- .. 5.: :Eg't'rg - I I: 55.2.3}. G. ISAAC SPONAUGLE, RE West Virginia citizen and taxpayer, Petitioner, v. Civil Action Number: 18-P-217 Honorable Charles E. King, Judge JAMES CONLEY JUSTICE, II, Governor of the State of West Virginia, Respondent. ORDER GRANT - MOTION TO DISIV SS On August 27, 2018 came the Petitioner G. Isaac Sponaugle, pro se, and Keepondent James Conley Justice, II, Governor of the State of West Virginia (hereinafter "Respondent"), by counsel Michael W. Carey and David R. Pogue of Carey, Scott, Douglas Kessler, PLLC, for hearing on Keepondent?s motion to dismiss. After due consideration of the written submissions of the parties and the arguments presented at the hearing, Respondent?s motion is hereby GRANTED, and the Court makes the following ?ndings of fact and conclusions of law. I. FINDINGS OF FACT 1 . On or about June 19, 2018, Petitioner ?led the instant Petition for Writ of Mandamus against ReSpondent, in his of?cial capacity as Governor of the State of West Virginia, asking this Court to order Respondent to ?reside at the seat of government during his term of of?ce, and keep there the public records, books and papers pertaining to his respective Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 3 2. It is undisputed that Petitioner did not comply with the pre-suit notice requirements set forth in W. Va. Code? 55-17-3 prior to instituting this action. More speci?cally, Petitioner did not provide ReSpondent and/or the Attorney General written notice, by certi?ed mail, return receipt requested, ofthe alleged claim and the relief desired at least thirty days prior to the institution of this action. 3. On or about July 12, 2018, Re5pcndent moved to dismiss this action based on Petitioner?s failure to comply with the mend: notice procedures set forth in W. Va. Code II. CONCLUSIONS OF LAW This action must be dismissed as a result of Petitioner? 3 failure to comply with pre-suit notice requirements set forth in Code which states, in its entirety, as follows: Notwithstanding any provision o?aw to the contrary, at least thirty days prior to the institution of an action against a__govemment agency, the complaining party or parties must provide the chief of?cer of the government agency and the Attorney General written notice, by certi?ed mail, return receipt requested, of the alleged claim and the relief desired. Upon receipt, the chief of?cer of the government agency shall forthwith forward a copy of the notice to the President of the Senate and the Speaker of the House of Delegates. The provisions of this subdivision do not apply in actions seeking injunctive relief where the court ?nds that irreparable harm would have occurred if the institurion of the action was delayed by the provisions of this subsection. W. Va. Code 55-17-3 (a)(1)(emphasis added). Under the plain language of this statutory provision, the referenced pre-suit notice is required for "an action? against ?a government agency.? This Court does not have to guess at what the Legislature meant by the term ?action," because the Legislature provided a definition. As used W. Va. Code 55?17-3, the term "action" means "a proceeding instituted against a governmental agency in a circuit court or in the supreme court of appeals, except actions instituted pursuant to statutory provisions that authorize a Speci?c 3.90.10. 2018 KANAWHA CO. CIRCUIT CLERK No. 8815 P. 4 procedure for appeal or similar method of obtaining relief from the ruling of an administrative agency and actions instituted to appeal or otherwise seek relief from a criminal conviction, including, but not limited to= actions to obtain habeas corpus relief." See W. Va. Code 55-17-2 (1). The instant mandamus proceeding is plainly an ?action? under this de?nition. Indeed, nowhere in this de?nition did the Legislature state or even imply that mandamus actions, like the case at bar, are excepted. The only exceptions provided in this de?nition are for appeals from the ruling of an administrative agency and appeals from criminal convictions. The instant action ?led by Petitioner is neither of these things. The Legislature also provided a de?nition of the term. ?government agency,? which includes, among other things, "a Constitutional of?cer or other public of?cial named as a defendant or respondent in his or her omcial See W. Va. Code Petitioner does not dispute that ReSpondent is a "government agency" Within dais de?nition. Accordingly, because the instant mandamus action was brought against Respondent in his of?cial capacity as Governor of the State of West Virginia, and does not fall within any of the narrow exceptions to the term "action," this lawsuit is plainly an "action against a government agency" subject to the pre-suit notice requirements of W. Va. Code? 55-17~3. The West Virginia Supreme Court of Appeals has held that ?[c]ompliance with the pie-suit noti?cation provisions set forth in W. Va.Code 55?17?3 (2002) is a jurisdictional pre-requisite for ?ling an action against a State agency subject to the provisions of W. Va.Code 55?17?1 et seq. (2002)." Syl. Pt. 3, Motto v. CSK Transu.. Inc.= 647 848 2007). The Court has ?nther held that ?dismissal is reuuired for failure to comply with the notice provisions contained within W. Va. Code 55-17-3 due to a lack of jurisdiction.? is; at 855; see also Melissa C. v. W. Virginia Dep't of Health 8: Lima}; 33;, 2016 WL 2970887, at *3 (W. Va. 2016)(holding that 3 Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No. 8815 P. 5 dismissal of an action against a government agency was mandatory where the petitioner did not provide the notice required by W. Va. Code 55-17-3). Accordingly, because this action is an "action against a government agency" within the ambit of 55-17-3 but Petitioner did not provide the notice required by W. Va. Code 5 5?1 7?3 prior to instituting this action, the action must be dismissed. Despite the plain language of W. Va. Code and the relevant de?nitions in W. Va. Code 55-l7r2, Petitioner maintains that does not apply to the type of action he has ?led. As explained below, each of Petitioner?s arguments is without merit. A. By its plain language, 55-17-3(a) is not limited to actions for ?judgments.? Petitioner asserts that the pie-suit notice requirements in W. Va. Code 55-17-3 (60(1) only apply to actions that seek a ?judgment,? as de?ned in W. Va. Code However, Respondent moved to dismiss based on Petitioner? failure to comply with W. Va. Code 55-17-3 which, by its plain language, is not. limited to actions for ?judgments." Indeed, 55-17-3 does not even contain the word ?judgment,? nor does the de?nition of ?action? set forth in include the word ?judgment.? Rather, the term ?judgment" comes into play in 55-17-3Q1, which is not the basis for Reapondent?s motion to dismiss- Section SS-l7a2(3) de?nes ?judgment? as ?a judgment, order or decree of a court which would: (A) Require or otherwise mandate an expansion of, increase in, or addition to the services, duties or responsibilities of a government agency; (B) Require or otherwise mandate an increase in the expenditures of a government agency above the level of expenditures approved 0r autho?zed before the entry of the preposed judgment; (C) Require or otherwise mandate the employment or other hiring of, or the contracting with, persomel or other entities by a government agency in addition to the personnel or other entities employed or otherwise hired by, or contracted with or by the government agency; (D) Require or otherwise mandate payment of a claim based upon a breach of contract by a government agency; or (E) Declare an act of the Legislature unconstitutiOna] and, therefore, unenforceable.? W. Va. Code Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 6 Again, 5 5-17-3Lg1, which is the basis for Respondent?s motion, requires that "at least thirty days prior to the institution of on action against a government agency, the complaining party or parties must provide the chief of?cer of the government agency and the Attorney General written notice, by certified mail, return receipt requested, of the alleged claim and the relief desired." W. Va. Code 55?17-3 (emphasis added). Section 55-l7n3 further requires the chief of?cer of the government agency to forward a copy of the notice (but not the complaint, petition, and/or other pleadings) to the President of the Senate and the Speaker of the House of Delegates. See Id. Section 55?17-31h1, on the other hand,.adds additional requirements for actions that seek a ?judgment?: (1) Notwithstanding any procedural rule or any provision of this code to the contrary, in an action instituted against a government agency that re eks a judgment, as de?ned in section two of this article, the chief of?cer of the gOVernrnent agency which is named a party to the action shall, upon receipt of service, forthwith give written notice thereof together with a copy of the complaint ?led to the President of the Senate and the Speaker of the House ofDelegates.? (2) Upon request, the chief of?cer of the government agency shall furnish the President and Speaker with captes of pleadings ?led and discovery produced in the proceeding and other documents, information and periodic reports relating to the proceeding as may be requested. W. Va. Code? 55-17-3 added). In other words, 55-17-31g1 sets forth the baseline pre-suit notice requirements for every ?action,? as de?ned in W. Va. Code against a goVermnent agency. If the ?action? seeks a ?judgrnentf then 55-17?3 (131 sets forth additional requirements targeted at enabling increased legislative oversight. Thus, the statute does not limit the notice requirements in 55-17 to actions seeking a ?judgment.? Rather, the statute requires additional steps (which must be taken by the chief of?cer of the government agency, not the complaining party) for actions Sep.10. 2018 KANAWHA C0. CIRCUIT CLERK No.8815 P. 7 seeking a ?judgment.?2 Here, Respondent?s motion to dismiss is based on Petitioner is admitted failure comply with the pie-suit notice requirements set forth in The provisions in 55-17-3(b) regarding the additional steps that the chief of?cer of the government agency must take in actions seeking a ?judgmen are not at issue. As the West Virginia Supreme Court of Appeals has is not for [courts] arbitrarily to read into [a statute] that which it does not say.? Subcgje; Comc'ns, Inc. v. Nield, 624 729, 736 2005); see also State ex rel. Frazier v. Meadows, 454 65, 69 are not free to read into the language what is not there, but rather should apply the statute as written?). Under the plain language of the pie?suit notice requirements therein apply to ?an action against a government agency.? It does not say- "an action for ajudgmentg" it says "an action.? Likewise, the de?nition of ?action? in W. Va. Code 55-17-2(1) does not contain the word ?judgment.? The Court rejects Petitioner's attempt to read the word ??udginent? into these statutory sections. B. This action is not excepted from 55-17-3(a) by the Legislature?s statement of its ?ndings and purpose in 55-17-1. In an attempt to circumvent the plain language of Petitioner attempts to use a related statutory section setting forth the Legislature's ?ndings and purpose to argue that only applies to actions seeking a?judgment," as de?ned in W. Va. Code However, W. Va. Code 55-17-1, which sets forth the Legislature?s ?ndings and purpose, does not state that Chapter 55, Article 17 as a whole is limited to actions seeking a ?judgment.? Paragaph 2 Indeed, if 55-17-3 (3) and/or the statute as a whole were limited to actions seeking a ?judgment," then the langUage in specifying that 55-17-3 applies to ?an action instituted against a government agency that seeks a judgement, as de?ned in section two of this article? would be super?uous and redundant. See Code added). 6 Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 8 of 55-17-1 states as follows: The Legislature ?nds that there are numerous actions, suits and proceedings ?led against state government agencies and of?cials that may affect the public interest. Depending upon the outcome, this type of litigation may have signi?cant consequences that can only be addressed by subsequent legislative action. in these actions, the Legislature is not directly involved as a party- The Legislature is not a pr0per party to these actions because of an extensive structure of constitutional protections established to safeguard the prerogatives of the legislative branch under our governmental system of checks and balances. Government agencies and their of?cials require more notice of these actions and time to respond to them and the Legislature requires more timely information regarding these actions> all in order to . protect the public interest. The Legislature further ?nds that protection of the public interest is best served by clarifying that no government agency may be subject to awards of punitive damages in any judicial proceeding. W. Va. Code? added)? Nowhere in this paragraph does the Legislature state that it is only concerned with actions seeking a ?judgment." The paragraph does make reference to actions, suits and proceedings ?that may affect the public interest,? 'but it does not state that actions that may affect ?the public interest? are limited to actions seeking a ?judgmen In this Court?s View, an action seeking judicial interpretation and enforcement of a purported constitutional requirement regarding the State?s chief executive is an action that ?may affect the public interest.? Petitioner seizes upon paragraph of 55-17-1, which states that is the purpose-of this article to establish procedures to be followed in certain civil actions ?led on behalf of or against state government agencies and their of?cials." W. Va. Code? 55-17-l(c) However, nowhere does the Legislature state that these ?certain civil actions? are limited to actions seeking a ?judgment.? To the contrary, the Legislature de?ned the term ?action" broadly to mean ?a proceeding instituted against a governmental agency in a circuit court or in the supreme court of appeals," and excepted only actions seeking relief from arr-administrative ruling or criminal conviction. See Code 3 Paragraph of 55-17-1 discusses suits ?led an behalf of the State, and is therefore not relevant to the motion at hand. SealO. 2018 KANAWHA C0. CIRCUIT CLERK No.8815 P. 9 55-17-220). If the only ?actions? covered by the statute were?those seeking a ?judgrnentf then it would make no sense for the Legislature to separately and broadly de?ne the term ?action? in a way that does not even mention the word ?judgment.? Moreover, even if 55?17-1 did contain some reference to the word ?judgment? (which it does not), ?a related statute cannot be utilized to create doubt in an otherwise clear statute.? See Subcarg?er Inc.) 624 at 735. As previously discussed, the language of 55-17?3 is clear. It does not say that pre-suit notice is required only for ?an action seeking a judgment." Rather, it says that pro-suit notice is required for "an action? against a government agency. Again, the Legislature de?ned the term ?action? quite broadly as a ?proceeding instituted against a governmental agency,? and did not limit it to proceedings seeking a ?judgment.? See W.Va.,Code Accordingly, the Court rejects Petitioner?s argument that W. Va. Code 55-17?1 narrows the scope=of W. Va. Code 55-17-3 and/or the de?nition of ?action? in Code 55-17-20). C. The West Virginia Sup reme' Court?s decision in Motto did not narrow the scope of W. Va. Code 55-17-301) to actions seeking a ?judgment.? At the hearing on August 27, 201 8, Petitioner argued for the ?rst time that the West Virginia Supreme Court of Appeals? held in Motto, supra, that W. Va. Code 55-17-3(a) only applies to actions seeking a ?judgmen In M_ott_g, the plaintiffs sued the West Virginia Department of Envircrunental Protection for damages arising ?orn a ?ood. 647 at 850. It was undisPuted that the plaintiffs were required to comply with W. Va. Code ?-55-17-3 but failed to do sof Lt; at 8 50, 853. The questions addressed by the Court were (1) whether the compliance with the pro-suit noti?cation provisions Set forth in Code was a jurisdictional lire?requisite; and (2) whether an action dismissed for failure to comply with W. Va. Code 55-17-3(a) could be re- Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 10 ?led after expiration of the original statute of limitations pursuant West Virginia?s Savings Statute. at 451- The Court was not asked to address whether any particular type of action is covered by W. Va. Code nor to otherwise decide the scope of actions within the ambit of the statute. See at 85 3 (?The questions certi?ed to this court assume that the Act is applicable to this action?). Nevertheless, Petitioner points to the following general, preliminary discussion of W. Va. Code 55-17-3(a) that the Court included at the outset of its opinion: At $51.18 herein are the preliminary notice procedures set forth in W. Va. Code Under the provisions of W. Va. Code 55?17?3 a party instituting an action against a government agency must provide both the agency's chief of?cer and the attorney general With written notice, by certi?ed mail, of the claim and relief requested at least thirty days prior to institution of the action. The applicable statute of limitations is thereafter tolled for a period of thirty days from the date it is mailed and again from the date evidenced by the return receipt that it was-received by the agency's chief of?cer. W. Va. Code The Act de?nes the terms on ?action? government agency", and ?judgment? so that the procedures apply to only those claims filed in state courts seeking speci?c types of relief against certain executive branch agencies. W. Va. Code 55?17-2. Id, at 852. This is not a holding that the statute is limited to actions seeldng ?judgments.? First, while the Court generally observed that the statute de?nes certain terms so that its procedures apply only to claims seeking Speci?c types of relief, the Court did not state that the notice procedures apply only to claims seeking ?judgments." As previously discussed, the statute?s de?nition of ?action? excludes claims seeleing relief from administrative rulings and claims seeking relief ?om a criminal conviction. As a result, 55?17?3 pro-suit notice requirements only apply to proceedings seeking certain types of relief (to claims that do not seek relief from administrative rulings and/or criminal convictions), but this does not mean that 55?17?3(a) is restricted to proceedings seeking a ??udgment. Seam. 2018 KANAWHA C0. CIRCUIT CLERK No.8815 P. 11 Second, inasmuch as the Court was not asked to address the applicability of the statute to any particular type of action, and the scope of the statute was not at issue in the case, the above-quoted language in was more dicta. Indeed, the Court conducted no analysis of the language of W. Va. Code 55?17?3 nor the de?nition of the term ?action." Hadthe Court done so, the Court would have been left with the inescapable conclusion, made plain by the Legislature? 5 choice of language in W. Va. Code 55?17?3(a) and de?nition of the term "action," that W. Va Code 55?17?3(a) is not limited to actions seeking a ?j udgrnen Accordingly, the dicta cited by Petitioner fails to establish that the instant action is not subject to the pie?suit notice requirements of W. Va. Code D. The Legislature did not create an exception from 55-17-3(a) for ?prerogative writs.? In de?ning the tenth ?action,? the Legislature excepted ?actions instituted to appeal or Otherwise seek relief from a criminal conviction, including, but not limited to, actions to obtain habeas corpus relief.? See Code 5 5-17 Petitioner argues that because the Legislature excepted actions for habeas corpus relief, then ?logic? dictates that all ?prerogative Writs," including writs of mandamus, are excepted. This is argument is plainly without merit. lithe Legislature had meant to except all ?prerogative writs,? it would have done so instead of mentioning only habeas corpus relief. Moreover, the Legislature excepted actions to obtain habcas corpus relief as part of the broader category actions seeking relief ?ow: a criminal conviction, not actions seeking extraordinary remedies or prerogative writs. The Legislature excepted "actions instituted to appeal or otherwise seek relief from a criminal conviction, including. but not limited to, actions to obtain habeas corpus relief.? 'Sae Code added). It did not except actions for 10 Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 12 prerogative writs, including, but not limited to, actions to obtain habeas corpus relief. The Court rejects Petitioner?s attempt to read this language into the statute. E. Petitioner?s ?concurrent jurisdiction? argument is without merit. PetitiOner argues that because the circuit courts and the West Virginia Supreme Court of Appeals have concurrent jurisdiction of mandamus actions, and Rule 16 of the West Virginia Rules of Appellate Procedure (which governs mandamus actions before the West Virginia Stipreme Court of Appeals) does not mention Code pre-suit notice requirements, Reapondent is impermissibly ?attempting to set a different and higher bar in an inferior court than that of the Supreme Court of Appeals of West Virginia when both courts have concurrent jurisdiction over the same subject matter of this action.? ?Petitioner?s argument fails for several reasons. First, Petitioner?s argument is based on the assertion that both this circuit court and the West Virginia. Supreme Court of Appeals have concurrent jurisdiction over this action,.and that he simply ?elected? to ?le in this court rather than the Supreme Court of Appeals. While the West Virginia Supreme Court of Appeals can exercise ori ginal jurisdiction over mandamus actions, it does not do so unless the petitioner demonstrates that ?ling in circuit court would be unavailing. See W. Va. R. App. P. argument must explain why the original" jurisdiction relief sought is not available in any other court-or cannot be had through any other process?). Thus, Petitioner could not have simply ?elected? to proceed in the Supreme Court of Appeals instead of this Court. Second, even if it were true that Petitioner could have ?elected" to ?le this action in the West Virginia Supreme Court of Appeals, Petitioner incorrectly assumes that Code 55-1 7-3 does not apply to actions filed in the Supreme Court of Appeals. By its plain terms, 55-17-3 11 SealO. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 13 applies to any non-exempt ?action? against a government agency, and the Legislature defined ?action? as ?a proceeding instituted against a agency in a circuit court or in the supreme Chart of appeals . . . See W. Va. Code added). Thus, under the plain language of 55-17-20) and pre-suit notice requirements set forth in apply to actions instituted in the West Virginia Supreme Court of Appeals. Third, even assuming arguendo that 55-17-3 did not apply to actions instituted in the West Virginia Supreme Court of Appeals,'Petitioner assumes that there is something impermissible about setting requirements for actions instituted in circuit court? that are different than the requirements for actions instituted in the Supreme Court of Appeals. Petitioner has cited no authority for the proposition that the requirements for instituting an action in circuit court must be the same or lesser than the requirements for bringing an action before the SupremeCourt of Appeals. Regardless, because 55-l'7-3 plainly applies both to actions instituted in circuit court and= to actions instituted in the Supreme Court of Appeals, Petitioner?s argument is Without merit. F. The Court [declines to declare 55-17-3 unconstitutional. At the heating on August 27, 2018, Petitioner argued fer the ?rst time that if 55-17-3 applies to mandamus actions like the case at bar, then it is an unconstimticnal legislative encroachment on judicial authority. The Court notes that insofar as the West Virginia Supreme Court of Appeals has the power to promulgate rules for all cases and proceedings, if 55-17?3 is unconstitutional as applied to mandamus proceedings, then it is unconstitutional as to all types of civil actions. Nowhere in Petitioner?s opening pleading antl/ or subsequent written submissions has Petitioner sought a declaration that 55-17-3 is unconstitutional nor otherwise challenged the constitutionality of that statute. In addition, the Court notes that although two dissenting Justices in questioned the constitutionality of the statute, the West Virginia Supreme Court of Appeals 12 Sep.10. 2018 KANAWHA CO. CIRCUIT CLERK No.8815 P. 14 has continued to enforce the statute. See Melissa C., 2016 WL 2970887 at *3 (af?rming dismissal for failure to comply with 55-17-3 approximately nine years after Motto was decided) In light of all of the foregoing, this Court declines to declare 55-17-3 unconstitutional. DISPOSITION Based on all of the foregoing, Respondent?s motion to dismiss is hereby GRANTED. The Court hereby ORDERS that Petitioner?s Petition for Writ of Mandamus against ReSpondent be DISMISSED without prejudice. The Circuit Clerk is directed to forward a certi?ed copy of this Order to all counsel of record. Entered this [d ?day of 92 i ,2018. ?or?isr?able Charles Judge' Prepared by: ?/rp?a Michael W. Carey, WVSB No. 635 David Pogue, WVSB No. 10806 Carey, Scott, Douglas Kessler, PLLC 901 Chase Tower 707 Virginia Street, East P.O. Box 913 Charleston, WV 25323 (304) 345-1234 Counsel ?ir Respondent 13