West Virginia Record

Thursday, December 5, 2019

Judge orders Ohio Co. circuit clerk to accept filing she had previously refused

Attorneys & Judges

By Chris Dickerson | Nov 13, 2019

Ohiococh

WHEELING – A circuit judge has ordered that Ohio County’s circuit clerk accept a filing she previously refused.

Ohio Circuit Chief Judge Ronald Wilson made the ruling Nov. 13 from the bench during a morning hearing. A week earlier, he had filed a Rule to Show Cause ordering Circuit Clerk Brenda Miller to appear for the hearing.

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 faxed Oct. 31 to Miller’s office. The petition states that the underlying proceeding is deemed confidential by state code.


Miller

Wilson ordered that the filing be accepted as it was filed and dated with the date of the original fax filing. He said the filing needed to be resubmitted with the required filing fee.

“There were competing orders from circuit court judges in this circuit that affected where the case needs to be filed,” attorney Teresa Toriseva told The West Virginia Record. “It involves confidential legal information, so I can’t discuss particulars of that case. But with these competing orders, she (Miller) was analyzing court orders.

“We’re pleased the writ was granted, but we continue to have issues with access to the courts in Ohio County. We’re going to be on alert.”

Miller said she was satisfied with the result.

“My attorney (Don Tennant) said that this was a win for us,” Miller told The Record. “I feel pretty good with how it came out.

“The judge pretty much said if we had communicated – the courts, the attorneys, the judges – this all didn’t have to have happened. It’s just an issue of how things are supposed to be properly taken in … what information is included to get things done properly.

“The judge said he didn’t think it had to come to this. If everyone had communicated better with each other, it would have been fine.”

Tennant, who represented Miller, declined further comment on the matter.

In court, Tennant argued that Miller could not accept the original paperwork because it was sent by fax and did not include the mandatory filing fee. He said Miller tried to get clarification about the filing from a Toriseva Law staff member. Tennant said Miller's office couldn't formally accept the filing by timestamping them until the additional information was available.

Wilson ordered Miller to accept Toriseva's case dated retroactively to Oct. 31 when the firm first tried to file the document.

Miller told The Record the filing in question was a modification of a case, which is considered a new case filing.

“With a new filing, it can’t be faxed in,” she said. “It has to have filing fee with it as well as a civil case information sheet. It has to include service information and payment for service.”

When asked to clarify whether the writ was granted, Toriseva again said it was.

“This is part of the problem,” Toriseva said. “She (Miller) doesn’t understand the ruling or the problem. She’s making legal judgments about my filings. Access to the courts is what this issue is about. It is one of the highest and most essential privileges of citizenship.

“A circuit clerk is not a gatekeeper. Parties can only be thrown out of or blocked from court by a judge after due process. If a person can’t file something in court, a person has no rights as a citizen.

"This is a constitutional rights issue. It’s about the rights of citizens to access the courts. No circuit clerk is a gatekeeper. It is the job of the circuit clerk to accept filings for the court’s consideration. Ms. Miller‘s public response after today’s hearing that “no writ was issued“ shows the problem – she does not understand her role or its limits. That’s what leads to abuse of power by elected officials. Judge Wilson issued the writ today from the bench and ordered the relief we requested.

"The filing will be accepted today and dated back to the original date that we attempted to make this filing. The voters of Ohio County should take notice of Ms. Miller’s apparent belief that she has the power to block access to the courts."

Miller said she loves her job.

“Since I first started on Jan. 1, 1999, I have loved this job,” she said. “I feel I can help a lot of people in my job. That’s why I keep running for re-election. I feel as long as I can help people, I’m doing my job.”

In the original petition, Toriseva Law said the timing of the filing was important.

“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 firm’s petition stated. “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 argued 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,” Toriseva Law’s 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 three attorneys at the firm –Toriseva, Joshua Miller and Jake Polverini – signed the petition.

Ohio Circuit Court case number 19-C-234

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Tennant Law OfficesOhio Circuit CourtToriseva Law

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