WEST VIRGINIA RECORD

MARTINSBURG – U.S. District Judge John Preston Bailey won't second guess a West Virginia Supreme Court of Appeals decision approving construction of homes on 123 acres in Jefferson County.

On Oct. 29, Bailey dismissed a challenge from county planning commissioners to the state Supreme Court's jurisdiction over the Far Away Farms development.

Bailey rebuked the commissioners for apparently timing a motion at the Supreme Court of Appeals in an effort to manipulate the legal system.

The Justices ruled in favor of developers last year in a suit against the county board of zoning appeals, which denied a permit for Far Away Farms.

Instead of ordering the board of zoning appeals to issue the permit, the Justices ordered the planning commissioners to issue it.

The commissioners petitioned the U. S. Supreme Court to review the decision, and last November the Justices in Washington denied the petition.

On April 13, in a tactic that would irritate Bailey, the commissioners filed a motion to intervene at the Supreme Court of Appeals.

The Supreme Court of Appeals denied intervention on April 30, three to two.

The commissioners turned to federal court in June, alleging due process violations.

Their lawyer, Bob Bastress of Morgantown, argued that they weren't parties to the case at the Supreme Court of Appeals.

For Far Away Farms, Richard Gay of Berkeley Springs moved to dismiss their suit.

He wrote that they sued Far Away Farms "instead of summoning the courage to pursue a cause of action against the West Virginia Supreme Court of Appeals."

His associate Nathan Cochran followed with a brief arguing that issuing the permit was a ministerial act and the commissioners had no discretion.

"The planning commission's angst over its purported non-party status to the state court proceeding is much akin to a district court clerk who insists that she be made party to a case in order to enter an order into the record," he wrote to Bailey on Oct. 6.

Bailey made up his mind quickly but built his decision carefully.

"Under West Virginia law, a collateral attack of a judgment is allowed where the court issuing the judgment lacked jurisdiction," he wrote.

He wrote that he had to determine who the parties were and what matters were or could have been put at issue.

"The merits of the West Virginia Supreme Court of Appeals ruling need not be considered," he wrote.

The commission wasn't named in the complaint or served with process, he wrote, but counsel for the board of zoning appeals also represented the commission.

He wrote that commissioner Ed Dunleavy appealed to the U. S. Supreme Court.

He ruled that when the commissioners moved to intervene at the Supreme Court of Appeals to contest jurisdiction, they submitted to the court's jurisdiction.

He quoted a 1938 decision that, "After a party has his day in court, with opportunity to present his evidence and view of the law, a collateral attack upon the decision as to jurisdiction there rendered merely retries the issue previously determined."

He wrote that the commissioners waited until after the U. S. Supreme Court denied Dunleavy's appeal before moving to intervene at the Supreme Court of Appeals.

"That appears to this court to be an intentionally ill timed motion to intervene in an effort to manipulate the legal system," he wrote.

"The West Virginia Supreme Court actually considered the jurisdictional issues several times, and each time rejected the arguments that it lacked jurisdiction," he wrote.

"After finding that the West Virginia Supreme Court fully and fairly considered its jurisdiction this court's inquiry ends," he wrote.

"Any argument that the court acted in error is to be disregarded by this court," he wrote.

When the Supreme Court of Appeals approved Far Away Farms, the Justices held that the developers met every requirement for a permit.

They found that the developers addressed all unresolved issues at a hearing and no one refuted their evidence.