WEST VIRGINIA RECORD

CHARLESTON - Hit with a 38-page complaint, West Virginia Department of Highways Legal Director Anthony Halkias has more than a few questions concerning a pending case in Kanawha Circuit Court.

Beyond the specifics and statistics laid out in the complaint that attorney John Skaggs prepared, though, Halkias holds the most basic of wonderings: Who is suing the DOH and why?

Halkias and Assistant Director Jeff Miller recently filed their response to Coal River Mountain Watch's February Petition for Declaratory Judgment, Writ of Mandamus and Writ of Prohibition.

The lawsuit lists Danny Ellis, Cabinet Secretary of the West Virginia Department of Transportation, and The Public Service Commission of West Virginia as defendants, but Coal River Mountain Watch's real interest is in proving that the state legislature's allowance of trucks to exceed certain weight limits is unconstitutional and unsafe for the residents who live along those roads.

Therein lays the "Why us?"

"The Commissioner may have discretion but not enough discretion to ignore the laws of the state," Halkias said. "That's our position in a nutshell.

"We feel the parties who are indispensable to this lawsuit were not named. If you're going to talk about a law passed by the Legislature, you would need to have other parties in the lawsuit, probably. That is our position. We're doing what the law says."

Halkias feels the defendants who were named were merely obeying laws set forth by the Legislature and shouldn't be at fault.

"This is an unusual case," Halkias said. "However, it raises some constitutional issues. The Department of Highways is going to comply with laws passed by the Legislature until a court declares them unconstitutional."

That's the reason Halkias is hung up on "Why?". He's also trying to figure out "Who?"

The original complaint lists "Coal River Mountain Watch, an Association" as the plaintiff, though Miller says some of the writing contained afterward makes it confusing to know exactly whom he is dealing with.

"Part of the problem presented is that the only plaintiff identified in the lawsuit is presumably an association, Coal River Mountain Watch," Miller said. "At various points, it alleges that the plaintiff lives at certain places and lives with certain local traffic conditions and the only plaintiff identified in the pleading has no residence."

Halkias added that he could not find anything that he can find no record of Coal River Mountain Watch being established as an entity.

The group's complaint states: "Coal River Mountain Watch is a public interest group representing local residents in counties whose members (reside) along various public roads in coal producing counties, including but not limited to roads which are part of the Coal Resource Transportation System."

"We're kind of at a loss to respond to those allegations since we don't think they sufficiently identified just who the plaintiffs are," Halkias said. "Sometimes when an entity is formed properly, they can be a group representing a lot of individuals.

"There's no known evidence of these people forming a legal entity."

Actual numbers and figures, such as the disputed weights of coal trucks, the amount of money the DOH has collected in fines for overweight trucks and bridge weight limits will also be a point of disagreement between the two sides, though Halkias admitted the case will center more on constitutional issues than statistics.

Halkias and Miller threw in a claim for governmental immunity, too, in case Coal River Mountain Watch later demands monetary damages.

Currently, there is no such claim. Halkias, though, says he is playing it safe because he isn't sure what the group is after.

It's just another one of the questions Halkias is trying to find answers to.

"This defendant says the petition, as filed, fails to set forth a clear and concise statement of facts and circumstances," the response says, "upon which affirmative relief may be granted."

Kanawha Circuit Court case number 06-C-257