WHEELING -– The West Virginia Supreme Court of Appeals will hear arguments in three cases Oct. 19 on the campus of Wheeling Jesuit University.
Students and members of the public are invited to attend, but due to limited seating, tickets will be required. Free tickets can be obtained from the Campus Activities Office at (304) 243-2235. The proceedings also will be broadcast over the Internet via the Court's Argument Webcast, accessible at http://www.state.wv.us.wvsca/Webcast.htm
"The Supreme Court tries to hear cases outside of Charleston as often as possible to give citizens who do not live near the Capitol an opportunity to see how we work," Supreme Court Chief Justice Robin Jean Davis said in a press release. "We held court at Marshall University in September and at West Virginia University last spring. We are honored now to be able to visit such a prestigious private college."
While in Wheeling, the justices also will attend the Fall Judicial Conference.
The cases the court will hear are
* Robert L. McCabe v. Evelyn Seifert, Warden, and Division of Corrections Parole Services, No. 32976. The Court is being asked to decide whether someone on parole can file a writ of habeas corpus, usually filed only by people still in jail or prison.
Robert L. McCabe on Dec. 11, 2000, pled guilty to three counts of obtaining money by false pretenses; one count of obtaining labor, services and materials by false pretenses; and one count of fraudulent schemes. He was sentenced to five concurrent terms of 1 to 10 years in prison. That sentence was to start after he completed a sentence on 1995 and 1996 charges that he was serving at the time of his indictment on the 2000 charges. He was granted parole from the older sentence, but the parole was later revoked. He argues that the sentencing order of Monongalia County Circuit Court Judge Russell M. Clawges, Jr., does not credit him with one year he served while awaiting his sentencing and that the plea agreement conflicts with the sentencing order. He also raises issues of ineffective assistance of counsel.
McCabe is appealing a circuit court ruling denying his writ of habeas corpus. Habeas corpus, a Latin phrase meaning "that you have the body," is usually filed by prisoners who allege their imprisonment is illegal. McCabe was granted parole on Jan. 23, 2006. He argues that, because he is on parole, he remains in the custody and control of the Division of Corrections and the legal remedies under the Post-Conviction Habeas Corpus Act should still be available to him. The state argues actions under the Act are moot because McCabe is no longer incarcerated. The state also says there is no conflict between the plea agreement and the sentencing order.
Justice Larry V. Starcher disqualified himself from the case; Ohio County Circuit Court Judge James Mazzone will hear the case in his place.
* Sarina L. Davis, Administratrix of the Estate of Elizabeth Westen v. Mound View Health Care, Inc., No. 33104. The Court is being asked to decide whether pre-lawsuit requirements in the Medical Professional Liability Act unconstitutionally restrict or deny access to the courts.
On March 23, 2003, Elizabeth Weston was an invalid resident of Mound View Health Care, Inc., when she sustained a broken leg and later died. The administratrix of her estate, Sarina Davis, alleges Weston's death was the result of medical malpractice. She filed a lawsuit two years later, within a few days of the statute of limitations expiration. She did not submit a Notice of Claim or Certificate of Merit as required by the Medical Professional Liability Act. She argues the case should be tried on its merits and not be barred by legal technicalities.
She also argues that the Act is unconstitutional because the Rulemaking Clause of the West Virginia Constitution gives the West Virginia Supreme Court the power to make rules governing court procedures and that those rules have the effect of law. She argues that the Separation of Powers Clause of the West Virginia Constitution requires the Court to thwart the unlawful action of one branch of government when it impairs the constitutional responsibilities and functions of another branch, as she alleges the Legislature did when it passed the Act.
Mound View Health Care, Inc, argues that the Medical Professional liability Act is constitutional as well as plain and unambiguous. Therefore, it says the legislative intent is plain and the law should not be interpreted by the courts. The nursing home argues that the Act's pre-lawsuit requirements are not procedural technicalities but instead are the jurisdictional basis for courts to rule. The facility argues that because the lawsuit did not meet the requirements of the Act, Marshall County Circuit Court Judge John T. Madden was correct to dismiss it.
* State of West Virginia v. Anthony Ray Whitt, No. 33039. The Court is being asked to decide whether a man convicted of second-degree murder had a right to compel testimony from a woman he says committed the crime.
Anthony Ray Whitt was convicted of second-degree murder for the Jan. 29, 2001, death of Dorothy Mitchell, his father's mistress. Whitt alleged he confessed to the murder to protect his girlfriend, who told him she accidentally killed Mitchell.
A jury found Whitt guilty; in a criminal case, a jury must be satisfied of the defendant's guilt beyond a reasonable doubt. McDowell County Circuit Court Judge Rudolph J. Murensky II sentenced Whitt to forty years in prison. In his appeal, Whitt seeks reversal of the conviction and sentence. He also wants a new trial.
Whitt argues that he was denied his Sixth Amendment right to compel witnesses to testify because Judge Murensky refused to allow him to call as a witness his girlfriend, whom he alleged killed Mitchell. He argues that the girlfriend had no valid Fifth Amendment privilege against self-incrimination because she had been previously acquitted. Therefore, she was immune from prosecution for that crime.
The State says the defendant was not denied any constitutional right because Judge Murensky ordered the girlfriend to testify and put her in jail when she refused to do so. Also, other witnesses gave testimony that implicated her