West Virginia Record

Thursday, November 21, 2019

Judge orders Ohio County Circuit Clerk to explain why she refused to accept law firm's filing

Attorneys & Judges

By Chris Dickerson | Nov 6, 2019

Ohiococh

WHEELING – Ohio County’s circuit clerk has been ordered to appear before a circuit judge next week to explain why she allegedly failed to perform her duties by refusing to accept a filing by a Wheeling law firm.

On Nov. 6, Ohio Circuit Chief Judge Ronald Wilson filed a Rule To Show Cause ordering Brenda Miller to appear in person Nov. 13 for a show cause hearing.

The order says Miller needs “to show cause, if she can, why she is not legally obligated to execute the statutory duties of circuit clerk which necessarily includes acceptance of the filings presented to her by Toriseva Law.”


Miller

Miller declined to comment on the petition or Wilson's order.

"I respect the judiciary, and I'll leave it at that," she told The West Virginia Record.

On Nov. 4, Toriseva Law filed a petition for writ of mandamus claiming Miller failed to perform her duties by refusing to accept a filing. The firm says it attempted to file a document on behalf of an unnamed client in a domestic proceeding Nov. 1 in Miller’s office. The petition states that the underlying proceeding is deemed confidential by state code.

“Said document is time sensitive and the date of filing may have a significant financial impact upon the relief provided to petitioner’s client,” the petition states. “On that same date, Brenda Miller, Circuit Clerk for Ohio County, West Virginia, refused to accept the filing on behalf of petitioner’s client.

“Specifically, Ms. Miller refused to accept the document, refused to log the date and time of the filing of the document, refused to place the document in the file indicated by petitioner, refused to take a courtesy copy for the presiding judge, and turned petitioner away stating petitioner required the permission of a certain judge of the 1st Judicial Circuit in order to file the document.”

The law firm says that as a circuit clerk, “Miller’s duties are ministerial in nature only and she does not possess discretion in the carrying out of her duties.”

“As a recordkeeper and a fee officer, the clerk's duties are ministerial; that is, the duties are prescribed by statute, order, rule, or other directive and are absolute, certain, and required,” the petition states, quoting the West Virginia Circuit Clerk Procedural Manual. “The clerk has no discretion as to the performance of these duties; he or she must execute them. The clerk may exercise reasonable administrative judgment, however, as to the most efficient and effective way to perform or accomplish the ministerial duties. …

“Ms. Miller blatantly violated and ignored her duties as the Ohio County Circuit Clerk.”

The law firm says Miller usurped the powers of the court and exceeded her duties as circuit clerk.

“Miller has attempted to exert discretion on the filings of other similarly situated individuals and refused to accept their filings as required by the West Virginia Circuit Clerk Handbook,” the petition states. “A Circuit Court clerk of almost twenty (20) years of experience should fully comprehend her legal duties in that position.

“All citizens, not just judges and practicing lawyers of this state, expect her to understand her duties. Even a single act of refusing a filing is a dereliction of duty and is made worse by her approximate twenty (20) years on the job. Experience that should lead her, or anyone, to know better.”

The firm asks the court to enter a Writ of Mandamus requiring Miller to accept the filings provided to her by the firm, log the date and time of said filings, and place said filings in the files prescribed.

The three attorneys at the firm – Teresa Toriseva, Joshua Miller and Jake Polverini – signed the petition.

In his Nov. 6 order, Wilson ordered that the order be served to Miller by personal service by the Ohio County Sheriff’s Department at her office. It says the order also was faxed to Miller’s office.

Ohio Circuit Court case number 19-C-234

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Ohio Circuit CourtToriseva Law

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