CHARLESTON – Under West Virginia law anyone who intends to sue the state must give 30 days notice, but Justices of the Supreme Court of Appeals appear ready to strike down that law.
At oral arguments Feb. 14, Justice Joseph Albright said the Court could rule on the constitutionality of the law even though the attorney who brought the appeal did not raise a constitutional challenge.
"I don't see any way to address this outside of the constitutionality of this statute," Albright said.
He said the law treads on the Court's power to make rules. He called it "a rather draconian statute."
"If a lot of states have these laws there must be a good reason that has not occurred to me," Justice Spike Maynard said.
The Justices must decide what to do with a lawsuit of Logan County residents Adda Motto, Marie and David Carey and Sharon Runyon. They claim they lost their homes in a flood in 2003.
Bernard Layne III of Charleston filed the suit in Logan Circuit Court in 2005, a day before the two-year statute of limitations would have expired.
The suit accused railroad owner CSX Transportation and the Department of Environmental Protection of negligence.
After filing suit, Layne sent notice to the Department of Environmental Protection.
CSX removed the suit to U. S. District Court, but a federal judge remanded it to Logan County.
The Department of Environmental Protection moved for transfer to Kanawha County, and the Logan Circiut Court granted the transfer.
The department then moved to dismiss for failure to give 30 days notice.
Layne asked Circuit Judge Tod Kaufman to stay the suit for 30 days so Layne could comply with the law. Kaufman granted the stay last May.
Kaufman ruled that he would have dismissed the suit if the 30 day law was jurisdictional, but he decided that the law was procedural. He invited the Supreme Court of Appeals to review his distinction between jurisdiction and procedure.
The Justices agreed in October to review Kaufman's decision.
Although the suit named the Department of Environmental Protection, the Bureau of Risk and Insurance Management handled the defense. BRIM retained Anita Casey, a Charleston attorney in private practice.
Casey wrote to the Justices that Layne failed in another case to follow the statutory requirement.
"Because the plaintiffs had prevailed in the other case, the plaintiffs' attorney apparently believed that there was no longer a need to follow statutory requirements set forth by the Legislature," she wrote. "... the Legislature most certainly has the authority to establish time limits relative to the filing of lawsuits as a means of establishing safeguards in order to protect the public interests."
Layne responded that when legislators passed the law in 2002, they meant to insure that they could prepare for judgments with budget consequences.
"Since the judgment sought in this case is for insurance benefits, it does not meet the definition of "judgment ...'" he wrote.
At oral arguments, Albright asked Casey if the law prohibited people from prosecuting suits.
"This is a public interest statute," Casey replied, adding that judgments against the Bureau of Risk and Insurance Management come from public coffers.
"How is it constitutional?" Justice Brent Benjamin asked.
Casey said constitutionality was not raised in this case.
"Who is hurt?" Maynard asked.
"The public," Casey replied.
"What is the harm to the public good?" Albright asked.
"I cannot tell you what the Legislature had in mind," Casey said.
Maynard then read from the law.
"The Legislature requires more timely information regarding these actions, all in order to protect the public interest," he said. "More timely information? That's just a bunch of words."
When Layne's turn came, Albright asked him what legal basis the Court had to rule in his favor.
Layne said the Court could exercise its rule-making powers.
The Justices took it under advisement.