Suit alleges discriminatory treatment in domestic violence shelter, program licensure

CHARLESTON – A children's advocacy group alleges that the state of West Virginia has engaged in unconstitutional and discriminatory funding of domestic violence programs and shelters, and has filed a lawsuit to stop it.

On June 2, the Vienna-based Men and Women Against Discrimination filed an injunction in Kanawha Circuit Court against the Family Protection Services Board to prohibit it from dispensing any funds for the fiscal year starting July 1. Along with the Board, the suit also names its officers Judy King Smith, Emily Hopta, Judi Ball, Lora Maynard and Barbara Hawkins.

According to MAWAD'S complaint and suit, filed with the assistance of Nitro attorney Harvey D. Peyton, the Board, which is under the direction of the state Department of Health and Human Services, has a statutory duty to implement portions of the West Virginia Domestic Violence Act. Among the Board's duties are implementation of standards for licensure of all domestic violence shelters and programs in the state.

Ninety-five percent of the funding the shelters and programs receive come from the Board via its special revenue account, the West Virginia Family Protection Fund. According to the suit, $15 from every marriage license issued in West Virginia goes to the Fund.

What MAWAD finds troubling, Peyton says, is the how board has granted the West Virginia Coalition Against Domestic Violence carte blanche to participate in the licensure process.

According to the suit, part of the criteria for licensure includes having a "certified domestic violence advocate" who has "been approved by the board of directors of the West Virginia Coalition Against Domestic Violence." Likewise, the Board requires that not only all family protection programs have one-third of its service providers be certified by WVCADV, but also those programs conducting outreach services have its staff attend "at least two West Virginia Coalition Against Domestic Violence advocate certifications training a year."

Because their role has been written into the state Code of State Rules, Peyton says that WVCADV, an Elkview-based non-profit organization, has become a de facto government agency.

"Based on the foregoing, the Family Protection Services Board has unlawfully delegated the appropriation of public funds into the hands of a private entity, i.e. the West Virginia Coalition Against Domestic Violence," Peyton wrote.

"Programs cannot be licensed without the employment of certified personnel; only the West Virginia Coalition Against Domestic Violence is designated to approve certification; employment of individuals certified by the West Virginia Coalition Against Domestic Violence constitutes an ongoing requirement for receipt of public funding; membership in the Coalition is a condition of certification."

Furthermore, language in WVCADV's own advocate certification program conflicts with state law. Along with obtaining a grant from the U.S. Department of Justice's Office of Violence Against Women, WVCADV requires that "domestic violence advocates promote the safety and well-being of women and children who are victims of abusive relationships."

This, says Peyton, constitutes gender discrimination.

"In addition to constituting an unlawful and unconstitutional delegation of authority in violation of Article V, Section I of the Constitution of the State of West Virginia, the manner in which the Family Protection Services Board has chosen to implement and exercise its powers and duties violates the equal protection clause of Article II, Section IV of the West Virginia Constitution and W. Va. Code 48-26-601(c) and West Virginia Code of State Rules 191-2-6.4.a because its certification and licensure procedures result in discrimination in the provision of services based on sex."

Because it is an injunction MAWAD is filing, Peyton says they are not asking for damages. However, they are asking to be awarded attorney fees and related costs.

The case has been assigned to Kanawha Circuit Judge James C. Stucky.

Kanawha Circuit Court Case No. 08-C-1056