Benjamin, Albright issue venue case concurring opinions

By Steve Korris | Jul 14, 2006



CHARLESTON – When the West Virginia Supreme Court of Appeals declared that the state's restriction on lawsuits from residents of other states violated the United States Constitution, only two of five Justices felt that way.

They decided four to one that a Virginia man could sue over a Virginia injury in a West Virginia court. But by reading concurring opinions, they, in essense, split at two and a half votes each way.

In concurring opinions, Justice Brent Benjamin utterly rejected the constitutional analysis and Justice Joseph Albright half heartedly defended the state's right to deny access to courts.

Benjamin wrote that the majority invalidated West Virginia Code when they should have applied it.

Benjamin would have sent the suit back to Kanawha Circuit Court so the trial judge could collect evidence and resolve the dispute over the proper venue.

Albright wrote that under the Constitution, a West Virginia court could take residency into account but could not categorically dismiss suits of nonresidents.

These opinions left Chief Justice Robin Davis and Justice Larry Starcher as the only clear voices finding state code unconstitutional. That result stands.

The decision sends a lawsuit of Virginia resident Bart Morris back to Kanawha County Circuit Judge Louis Bloom, who had dismissed it.

Morris claimed he suffered an injury operating a Crown Equipment Corporation forklift at an Alcoa factory in Virginia.

His suit named Crown Equipment, an Ohio corporation, as lead defendant.

He named forklift distributor Jefferds Corporation, of West Virginia, as second defendant. Jefferds does business as Homestead Materials Handling Company.

Crown Equipment moved to dismiss, citing West Virginia code that prohibits a suit from a resident of another state unless all or a substantial part of the case occurred in West Virginia.

Bloom granted the motion.

Morris petitioned the Supreme Court of Appeals to remand the suit to Bloom.

The Justices declared that the state's restriction on nonresident lawsuits violated the Privileges and Immunities Clause of the U. S. Constitution.

The clause states that, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Justice Spike Maynard dissented.

Benjamin did not dissent, but he criticized the majority for relieving Morris of his obligation to establish proper venue in Kanawha County.

He wrote, "This Court has repeatedly stated that it will avoid invalidating a statute on constitutional grounds where reasonably possible."

He quoted a 1929 U. S. Supreme Court decision that, "There are manifest reasons for preferring residents in access to often overcrowded Courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the Courts ..."

He wrote that so long as the Legislature provided a rational basis for discriminating, its law should withstand constitutional scrutiny.

He wrote that because legislators failed to articulate the basis for discriminating, the Court could not speculate on their intentions.

He wrote, "The Legislature might consider setting forth its findings relating to the need for a discriminatory venue section ..."

Albright steered a middle course. He agreed with Davis and Starcher in their reasoning and conclusions, but wrote that he would amplify their points.

He quoted a federal court decision from Texas that refusing jurisdiction does not violate the Privileges and Immunities Clause "if jurisdiction would be refused in an action brought by a citizen of the forum state in the same circumstances."

He quoted decisions allowing courts to take residency into account and a West Virginia federal court decision that courts can deny access in appropriate circumstances.

He quoted a U. S. Supreme Court decision that courts must apply forum doctrines flexibly, on a case by case basis.

He wrote that the West Virginia Constitution authorized the Court to review and limit venue statutes.

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