Justices say Fairmont State suit wasn’t filed in proper court

By Kyla Asbury | Nov 13, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that Fairmont State University lawsuit should have been filed in Kanawha Circuit Court — not in Marion Circuit Court.

Earlier this year, Galen Hansen and Albert Magro, professors at the university, filed the lawsuit in Marion Circuit Court against the university and the Higher Education Policy Commission regarding alleged secret meetings when conducting a search for a new university president. They claimed the secret meetings violated the state’s Open Meetings Act.

“Fairmont State requests that we issue a writ prohibiting the circuit court from hearing the lawsuit against it and the HEPC,” Justice Menis Ketchum wrote in the Nov. 1 opinion. “West Virginia’s venue statutes require that the lawsuit against Fairmont State and the HEPC be filed in Kanawha County. The circuit court exceeded its legitimate powers by holding otherwise. Therefore, we issue the requested writ of prohibition.”

In the lawsuit, Fairmont and HEPC filed identical motions to dismiss the lawsuit and asserted that exceptions do not apply in this case—lawsuits against state agencies must be filed in Kanawha County.

“The circuit court denied Fairmont State’s and the HEPC’s motions to dismiss and held that Marion County was a proper venue to hear the lawsuit,” Ketchum wrote. “In response, Fairmont State filed its petition for a writ of prohibition with this court.”

The circuit court incorrectly presumed that, because it had subject matter jurisdiction over the lawsuit, it had venue as well, the opinion states.

“Both Fairmont State and the HEPC fall within the Legislature’s definition of a state agency, which is, ‘a state department, board, commission, institution, or other administrative agency of state government,’” Ketchum wrote. “More importantly, the parties do not dispute that Fairmont State and the HEPC are state agencies.”

The circuit court conceded in its order that the plain language of Section 14-2-2a mentions only West Virginia University and Marshall University.

However, the circuit court’s order continued: “It logically follows that actions against other universities not specifically named in the statute should also be tried in the county in which the action occurred. This argument is the most compelling and the one on which this Court’s decision as to venue primarily turns.” 

In short, the circuit court extended Section 14-2-2a to Fairmont State because it could think of no reason why the Legislature would treat Fairmont State differently than West Virginia University or Marshall University.

“We have repeatedly held that courts must not ‘arbitrarily…read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted,’” Ketchum wrote. “And because ‘the express mention of one thing implies the exclusion of another[,]’ we must presume that the Legislature purposely omitted Fairmont State from Section 14-2-2a based on its express mention of West Virginia University and Marshall University. Indeed, Section 14-2-2a is plain and unambiguous, so it must be applied, not interpreted or construed.”

The Supreme Court held that a lawsuit in which West Virginia University or Marshall University is made a party defendant shall be brought in the circuit court of any county in which the cause of action arose, unless otherwise agreed by the parties.

“This statutory exception to the general rule that an action against a state agency may be brought only in Kanawha County applies exclusively to lawsuits against West Virginia University or Marshall University,” Ketchum wrote. “Neither West Virginia University nor Marshall University were made parties to this lawsuit. Therefore, Section 14-2-2a does not apply to this case.”

The lawsuit stems from the first search for a new president to lead Fairmont State after Maria Rose announced last year she would retire. 

Another search was done later and last month the board named Mirta Martin as the university’s new president.

West Virginia Supreme Court of Appeals case number: 17-0630

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