West Virginia Record

Friday, February 28, 2020

Judges must explain prying, Justices rule

By Steve Korris | Jan 4, 2007


CHARLESTON – Land owners in highway condemnations can pry into appraisals of their neighbors in exceptional circumstances.

But according to the West Virginia Supreme Court of Appeals, judges who allow the prying must explain the circumstances.

The Court in December struck down an order of Hardy Circuit Judge Donald Cookman, who would have opened confidential records of the West Virginia Department of Transportation to land owner Fort Pleasant Farms.

Cookman would have granted two unusual bodies of evidence -- appraisals of nearby properties and reports of consultants who would not testify at trial.

The Justices did not stop him from signing a similar order in days ahead as long as he has held a hearing and found enough facts to satisfy a West Virginia civil procedure code allowing a broader range of discovery in exceptional circumstances.

Justice Brent Benjamin delivered the opinion. Justices Joseph Albright and Spike Maynard concurred.

Justice Larry Starcher concurred in part and dissented in part. He described government in condemnation as an 800-pound gorilla.

He wrote, "These are inherently exceptional circumstances."

On the other hand, Chief Justice Robin Davis would preserve confidentiality. She dissented five ways at once, calling the majority "wrong on all counts."

Fort Pleasant Farms occupies 160 acres in the path of the Corridor H highway. It holds about 2,500,000 yards of shale, and the Department of Transportation plans a quarry.

The department in 2004 condemned about 48 acres. The road would split the property, leaving about 98 acres on one side and 14 on the other.

The department started a civil action in Hardy Circuit Court in Moorefield.

Fort Pleasant Farms told condemnation commissioners the state should pay millions. The department told commissioners it should pay less than a million.

In 2005, Fort Pleasant Farms served two interrogatories on the department.

One sought to identify every expert the department consulted with, retained or communicated with, whether or not the department intended to call them as witnesses.

The other sought appraisals of similar properties within half a mile.

The department objected, arguing that the first interrogatory went beyond the scope of discovery, violated attorney work product and might violate attorney client privilege.

The department argued that the second interrogatory violated privacy rights of property owners with no connection to the litigation.

The department also attacked the second interrogatory as immaterial and burdensome.

Commissioners held a hearing in December 2005. They valued the taking and residue damage at $1,100,600.

Both sides objected in circuit court, and Fort Pleasant Farms moved to compel answers to its interrogatories.

Cookman granted the motion last April 13. He declared the interrogatories permissible, relevant and not unduly burdensome.

He wrote that use of the records at trial would be a different issue.

He told the department to comply immediately.

Instead, the department asked the Supreme Court of Appeals for a writ of prohibition, claiming Cookman exceeded his legitimate powers and abused his discretion.

Clarence Martin III of Martinsburg and John Athey of Keyser represented the department before the Justices.

For Fort Pleasant Farms, James Gray of Clarksburg, Ancil Ramey of Charleston and Oscar Bean of Moorefield argued for the first time that federal law required disclosure.

They argued that federal law applies because Corridor H will spend federal funds.

The majority chose not to apply federal law.

Benjamin wrote that Cookman "made no findings regarding the presence or absence of 'exceptional circumstances' warranting the production of discovery relating to non-testifying experts and/or consultants or the interplay of federal law with the parties' discovery obligations."

He wrote, "... we are left to speculate as to the circuit court's reasons for ordering the disclosure…"

Starcher wrote, "Citizens have an absolute right to know how a government arrived at a suggested price for land…"

Nothing in the decision pleased Davis. She did not even agree that the Court should apply the doctrine of exceptional circumstances.

She wrote for her first point that the issues in this case "must be resolved by federal law," but for her second point she denied that federal law required disclosure.

For her third point she wrote that the majority failed to recognize the confidentiality of the information.

She wrote that the Nevada Supreme Court denied a newspaper's bid to treat appraisals as public information.

For her fourth point she called the decision a "distortion of our carefully crafted rules that govern disclosure of information from trial and non-trial experts."

For her final point she predicted an unnecessary new burden on courts.

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West Virginia Supreme Court of Appeals