Justices go three ways in three rulings

CHARLESTON – In three clashes between circuit judges and state government, the West Virginia Supreme Court of Appeals found the state wrong in one, the judge wrong in another, and both the state and the judge wrong in the third.

First the Justices patted Berkeley County Circuit Judge David Sanders on the back for forcing improvements in child protection services in the Eastern Panhandle.

Sanders in 2004 held the Department of Health and Human Resources in contempt for failing to hire enough workers in the child protection office at Martinsburg.

The Justices approved his contempt order in an April 6 decision, though they told him to dismiss it now that it has served its purpose.

They credited Health and Human Resources Secretary Martha Walker with "sweeping changes" and "huge improvements" in employment conditions for child protection workers throughout West Virginia.

"We suspect that the actions taken by Secretary Walker were impelled, at least in part, by the continuing interest and careful monitoring of the DHHR staff vacancies by Judge Sanders," the Justices wrote.

Sanders chose drastic action after the department fumbled a heartbreaking case.

On Oct. 22, 2004, a person not ready for birth chose birth anyway to escape a womb of cocaine and amphetamines.

A doctor notified Eastern Panhandle child protection. The department asked Berkeley County circuit court for emergency custody. The court granted it.

From his hospital, the baby went to foster care.

At a Nov. 5 hearing, Sanders prescribed random drug screens for the parents and told them they would see their son at the discretion of the department.

He worried about the department, too. He had heard too many cases of children suffering because the office in Martinsburg did not employ enough workers.

He wrote that DHHR in the Eastern Panhandle was "dangerously understaffed, with as many as 12 unfilled positions."

He predicted that the staff shortage would interfere with oversight of visitation and placement in the baby's case.

On that very day, the baby's investigative worker left the department. No one reassigned the case and for weeks no one noticed.

A supervisor learned of the breakdown Nov. 30.

When the baby's father and guardian ad litem Margaret Gordon of Berkeley Springs found out, they filed a contempt petition against the department.

They argued that the department not only dropped the baby's case but also failed to schedule visits for the parents or start their drug treatments.

At a hearing in December, department workers testified about conditions at the Martinsburg office.

In January 2005, Sanders held the department in contempt of their obligations under West Virginia law.

He wrote that he would purge the order if the department immediately filled vacancies and sped up the training of new workers.

He ordered geographic pay differentials, "…to forestall the heavy attrition rate purportedly due to workers leaving to work in contiguous states."

The department soon took steps in the right direction, but Sanders would not grant a motion to purge his order.

The department asked the Supreme Court of Appeals to purge it or declare that Sanders exceeded his authority when he signed it.

The Justices held that staffing directives were not beyond Sanders's scope, in light of his recognition of danger not only to this child but to all children.

They wrote that Sanders exercised authority as a constitutional officer upholding laws that protect West Virginia children from abuse and neglect.

There was no doubt, they wrote, that unfilled positions played a part in the delayed assignment of the case.

Sanders pushed too far, however, with his order for geographic pay differentials. The Justices ruled that he exceeded his authority on that.

"While we do not wish to downplay the unacceptable situation that the trial court found itself presented with in regularly presiding over abuse and neglect cases during a period when DHHR staff vacancies reached crisis proportions, the extreme nature of these facts do not justify an invasion of the executive branch's province to set the salaries of its employees," they wrote.

They directed Sanders to purge the order.

The next day, in another case of a circuit judge telling a state department what to do, the Justices turned around and ruled that the judge exceeded his authority.

They held that Braxton County Circuit Judge Jack Alsop committed three errors in an order against the Division of Motor Vehicles.

Alsop last July found the division's license revocation procedures unconstitutional.

He chose drastic action after division attorney John Bonham testified that he rewrote a hearing examiner's recommendations on drivers Rita Tonkin of Gilmer County and Lonnie Rose of Braxton County.

Examiner Ramona Ward had found insufficient evidence to revoke their licenses, but Bonham told Alsop the facts warranted revocation.

Alsop disagreed. He reinstated the licenses of Tonkin and Rose.

He found that the division violated due process by substituting the findings of employees for findings of examiners.

Alsop told DMV Commissioner Joseph Cicchirillo to cease unconstitutional practices. He gave Cicchirillo 90 days to write rules and he retained jurisdiction to review them.

Cicchirillo asked the Supreme Court of Appeals for a writ of prohibition against most of the order, though he did not challenge the decision to let Tonkin and Rose drive.

The Justices held that Alsop committed an error in ordering Cicchirillo to cease certain practices, another in directing him to write rules, and another in retaining jurisdiction to review the rules.

They granted the writ.

Four days later they caught another circuit judge in the territory of a state board. This time they had to tell both the judge and the board what to do.

They held that Randolph County Circuit Judge John Henning wrongly reversed a decision of the Education and State Employees Grievance Board over pay raises for correctional officers.

That sounds like vindication for the grievance board, but the Justices sourly noted that the board decided two cases when it should have decided 80.

The corrections department in 1994 offered a 5 percent raise for a successful apprenticeship. Ever since workers have bickered about who deserves the raise.

In 2002 Cecil Pritt, Joseph Daniels and 21 others filed a grievance alleging discrimination because some had received 5 percent and they had not.

The department denied the grievances at three levels, setting up a Level Four hearing of the grievance board.

Then 57 Huttonsville Correctional Center officers joined the grievance.

At Level Four the grievance board held that nobody discriminated, because those who did not get the raise were not similarly situated to those who did.

Pritt and Daniels asked Henning to reverse the decision, and Henning did so. He told the grievance board to figure out how much the state owed Pritt and Daniels.

The corrections department asked the Supreme Court of Appeals for reversal.

The Justices reversed. They wrote that the grievance board specifically found that Pritt and Daniels were not similarly situated to those who got 5 percent.

They noted, however, that only Pritt and Daniels presented to the grievance board evidence of rank, employment date and apprenticeship.

The Justices invited the other 78 officers in the grievance to try to establish that they were similarly situated to those who got 5 percent.

The Justices told Henning to remand the case to the grievance board.