Supreme Court calendar for 4/16 issue

By The West Virginia Record | Apr 12, 2007

Argument Docket
Tuesday, April 17
Hampshire County Courthouse in Romney

1. James E. Burch, et al. v. NedPower Mount Storm, LLC, et al. - 33201

Legal Background: This is an appeal in a civil action, from an order of the circuit court dismissing the action. Appellants are landowners in Grant County who seek to enjoin the construction of a wind turbine facility. The construction of the facility was approved by the Public Service Commission. Appellants allege that the facility will destroy their property values and that the facility has no social value.

Procedural History: Appellants filed suit in the Circuit Court of Grant County alleging that the construction of this wind turbine facility along 10 miles of the Allegheny Front would constitute a nuisance, and sought to enjoin the construction. The circuit court dismissed this action, holding that an order of the Public Service Commission approving the siting of the facility forecloses any such action brought under the common law doctrine of nuisance.

Appellant's Argument: Appellants claim that the construction of the wind turbine facility should be enjoined because it will substantially reduce their property values and the construction of such a facility is not of sufficient social utility to justify the detrimental effect on their property values. Appellants argue that their nuisance claim was not addressed by the Public Service Commission and should not be precluded. They seek reversal of the circuit court's order and remand of this action for further proceedings.

Appellees' Argument: Appellees state that the Public Service Commission specifically outlined its consideration of the evidence on the issues raised in conditionally granting the certificate of public convenience and necessity to construct and operate the facility. Appellees state that the circuit court correctly concluded that a private nuisance action cannot reverse such a decision of the Public Service Commission.

2. State of W. Va. v. Denver A. Youngblood, Jr. - 31765

Legal Background: This is an appeal of a criminal case tried before a jury in the Circuit Court of Morgan County. At trial, before the defendant in a criminal case can be convicted of an offense, the jury must be satisfied of the defendant's guilt beyond a reasonable doubt. A mere preponderance of the evidence does not warrant the jury in finding the defendant guilty. The appellant, Denver A. Youngblood, Jr., was found guilty and convicted of two counts of sexual assault, two counts of brandishing a firearm, one count of wanton endangerment involving a firearm, and one count of indecent exposure. He was sentenced to a combined sentence of not less than 26 years and 90 days, or more than 60 years and 90 days.

Factual Background: Appellant was convicted based upon allegations that in July 2000 he abducted three young women and twice sexually assaulted one of them, and committed the remaining criminal acts. He argues that the three women made up the allegations against him because they would otherwise have been in trouble for not timely returning home from a party they attended. In support of this defense, appellant relies on a note, uncovered by appellant's investigator after the trial. The note was shown to a state trooper investigating the incident before trial, however the trooper never took possession of it. Appellant requested that the circuit court set aside the verdict and conviction based on the newly discovered evidence, but the request was denied.

Procedural History: After the conviction, appellant filed an appeal raising several errors. By per curiam opinion the West Virginia Supreme Court of Appeals affirmed the conviction. Appellant then petitioned the Supreme Court of the United States for writ of certiorari, arguing that suppression of the newly discovered note violated the State's federal constitutional obligation to disclose evidence favorable to the defense, citing to Brady v. Maryland, 373 U.S. 83 (1963). By opinion and order of June 19, 2006 the Supreme Court of the United States granted the petition for certiorari, vacated the judgment and remanded the case. The case is therefore currently before this Court on this assignment of error, known as a Brady issue.

Appellant's Argument: On appeal, the appellant argues that the State suppressed the note that is both exculpatory and impeachment evidence, to his detriment. He argues that the circuit court should have granted a new trial once presented with the evidence.

Appellee's Argument: The State responds by stating that the evidence is not exculpatory and would not change the outcome of the verdict.

3. Hartley Hill Hunt Club, et al. v. Ritchie County Commission, et al. - 33176 - Justice Benjamin disqualified. Judge Cookman sitting by temporary assignment.

Legal Background: This is an appeal of a civil case decided by the Circuit Court of Ritchie County. The Circuit Court entered judgment in favor of the county commission in a suit brought by the appellant, a private hunting club, challenging the prohibition of Sunday hunting in Ritchie County. Pursuant to W. Va. Code §20-2-5(28) voters of Ritchie County voted to prohibit Sunday hunting. Appellant argues that the statute at issue violates certain West Virginia Constitutional rights, making the statute unconstitutional.

Procedural History: W. Va. Code §20-2-5-(28) prohibits Sunday hunting on public property. The prohibition on Sunday hunting on private property is left to the voters in each of the State's counties. The Code section prohibits Sunday hunting on private property in any county where the issue has been submitted to the voters and a majority voted for the prohibition. If a county has not had such an election, Sunday hunting on private lands therein is permitted. The issue was posed to voters in Ritchie County in a 2002 local election, where a majority voted for the prohibition. Hartley Hill Hunt Club, a private hunting club with members who lease 2034 acres of land in Ritchie County for hunting, filed suit in circuit court, challenging the prohibition. The circuit court, in holding there is no constitutional right to hunt, dismissed the action. This appeal by Hartley Hill Hunt Club followed.

Appellant's Argument: Appellant argues that W. Va. Code §20-2-5-(28) violates the West Virginia Constitution. They argue Art. III, §22 grants the right to bear arms for lawful hunting and recreational purposes, and the prohibition against Sunday hunting in Ritchie County violates this right. Additionally, they argue that this particular Code section violates Art. VI, §1 by delegating legislative authority to the counties and Art. III, §10 because the ballot language is misleading and treats similarly situated individuals in an arbitrary and capricious manner.

Appellee's Argument: The County Commission of Ritchie County argues there is no constitutional right to hunt on private property on Sundays, and therefore, appellants arguments are fatally flawed. Appellee argues in favor of the local election to prohibit Sunday hunting on private property.

4. State of W. Va. v. Brian Daniel Murray - 33193

Legal Background: This is an appeal of a criminal case tried before a jury in the Circuit Court of Morgan County. At trial, before the defendant in a criminal case can be convicted of an offense, the jury must be satisfied of the defendant's guilt beyond a reasonable doubt. A mere preponderance of the evidence does not warrant the jury in finding the defendant guilty. The jury found defendant guilty as a result of his actions when the vehicle he was driving collided with a bicycle being ridden by an individual who died from the injuries sustained in the incident.

Procedural History: The defendant was convicted following a jury trial of failure to render aid involving death and for failure to maintain control. He was sentenced to three years for failure to render aid in an accident involving death, and upon completion of one year of the incarceration, if defendant was not paroled, he be brought back before the court at which time the balance of said sentence is to be served on home confinement. Defendant was fined $100 for the failure to maintain control conviction. Defendant, Brian Daniel Murray, requests that the convictions be set aside and the case be remanded for a new trial.

Appellant's Argument: The appellant raises numerous assignments of error on appeal. He argues that the trial court committed plain and prejudicial error by making remarks to the jury, which when considered in their entirety, had the effect of improperly coercing the jury and resulted in a compromised verdict. Appellant also raises an issue regarding the prosecutor's reference in closing argument regarding appellant's failure to testify, and its implications as well as the prosecutor's expressing personal opinions as to the credibility of certain witnesses, as well as certain evidentiary issues, jury issues and sentencing issues, the cumulative effect of which warrants a new trial.

Appellee's Argument: The State contends that the defendant received a full and fair trial and the conviction should be affirmed, as none of the assignments of error raised by the defendant are reversible errors, cumulative or otherwise.

Motion Docket
Wednesday, April 18

1. Mountain Communities for Responsible Energy v. PSC of W. Va. & Beech Ridge Energy, LLC; WV State Building & Construction Trades Council, AFL-CIO, et al., Intervenors - 070449

Alicia A. & Jeffrey D. Eisenbeiss v. PSC of W. Va. & Beech Ridge Energy, LLC, Mountain Communities for Responsible Energy - 070433 - Nonprofit group and local property owners appeal an order granting an application of a power company to build a wind-powered facility in their locality.

2. State of W. Va. v. Mindy Keesecker- 062944 - Plaintiff appeals from her convictions on six counts of third degree sexual assault. Defendant raises various evidentiary and trial errors.

3. Barbara Born, et al. v. WV State Building & Construction Trades Council, et al. & Long View Power, LLC - 070579 - Citizens appeal an order granting waiver of the requirement to obtain a modification or amendment of the existing siting certificate previously granted to power plant.

4. Bayer MaterialScience, LLC v. Hon. Virgil T. Helton, State Tax Comm'r, Hon. Phyllis Gatson, Kanawha Co. Assessor, et al. - 062955 - Bayer appeals from the circuit court's order affirming the decision of the Kanawha County Commission sitting as the Board of Equalization and Review. The Board denied Bayer's challenges to the revised value of its industrial property as established by the State Tax Commissioner.

5. David W. Crites v. Pilgrim's Pride Corporation, K & B. Transportation, Inc. & Jeffrey Dearing - 063506 - Plaintiff appeals an adverse summary judgment order in a case asserting employment discrimination and violation of contract.

6. State of W. Va. v. David L. Feamster - 063509 - David Lee Feamster appeals the circuit court's order revoking his probation.

7. Barry D. Schmehl, an individual as an officer of Filly's of America, Inc. v. Virgil T. Hilton, State Tax Comm'r of W. Va. - 063373 - Barry D. Schmehl appeals the circuit court's order which affirmed the administrative decision of the Office of Tax Appeals. The OTA affirmed an assessment against Schmehl, as an officer of a corporation, for the corporation's unremitted sales and service taxes, interest and penalties.

Argument Docket
Wednesday, April 18

1. Robert J. Zaleski, M.D. v. West Virginia Physicians Mutual Insurance Co. - 33242 - Defendant insurance company appeals from the circuit court's order granting partial summary judgment in favor of plaintiff, ordering the reinstatement of insurance coverage to plaintiff, and denying defendant's motion to dismiss. - Rescheduled to May 9.

2. W. Va. University Bd. of Governors, et al. v. W. Va. Higher Education Policy Comm. - 33208 - The WVU Board of Governors et al. appeal the circuit court's summary judgment order in a declaratory judgment action. The court held that the W.Va. Higher Education Policy Commission has the authority to require all higher education classified employees to be paid at or above the "zero step" for their paygrade on the salary schedule set forth in W.Va. Code § 18B-9-3.

3. Grace Lontz, et al. v. Joyce Tharp, et al. - 33243 - Plaintiffs appeal from the circuit court's order dismissing their claims for wrongful discharge and constructive discharge.

4. Helen P. Walker v. Option One Mortgage Corp., et al. - 33225 - Defendants appeal from the circuit court's order denying their motion to file a compulsory counterclaim against plaintiff and a third-party complaint against plaintiff's daughter. To be presented on briefs only without oral argument.

5. Cornell F. Daye v. SER Thomas McBride, Warden - 33100 - Daye appeals the circuit court's 06/09/05 order denying his petition for a writ of habeas corpus with a finding that "Daye's Petition does not show any probable cause warranting further inquiry.

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