West Virginia Record

Saturday, December 14, 2019

Supreme Court grants writ regarding class certification in Municipal Water Works case

State Court

By Kyla Asbury | Dec 4, 2019

Water

CHARLESTON – The West Virginia Supreme Court of Appeals granted a writ of prohibition in a case involving Municipal Water Works.

Municipal Water Works invoked the Supreme Court's original jurisdiction in prohibition to challenge the March 12 order issued by Wyoming Circuit Court granting a motion for class certification by Sherman Taylor, David Bailey and Joanna Bailey, according to a Nov. 5 corrected opinion. Justice Tim Armstead authored the majority opinion.

In its petition to the Supreme Court, Municipal Water raised two main arguments: that the Circuit Court judge, Judge Warren R. McGraw, should have disqualified himself prior to granting the motion to certify the class because he is a potential class member; and that the Circuit Court’s order did not contain a “thorough analysis” of the four class certification prerequisites in Rule 23(a) of the West Virginia Rules of Civil Procedure.

Armstead wrote that after review the court granted the requested writ of prohibition.

Taylor and the Baileys filed a complaint against Municipal Water alleging they were exposed to pollutants in their water supply and they filed a motion for class certification on Dec. 7, 2018. Municipal Water urged the Circuit Court to deny the class certification motion, but the court granted the certification. 

Municipal Water then filed an instant writ on April 26 and on May 2, McGraw advised the Supreme Court that Municipal Water had filed a motion for his disqualification. He then told the Supreme Court he would recuse himself voluntarily and the Supreme Court granted the motion for disqualification on May 16 and Circuit Judge Derek C. Swope was appointed to replace McGraw.

"It is undisputed that the circuit court judge who granted the motion certifying the class is a potential class member – Municipal Water supplies water to the circuit court judge’s residence and to the Wyoming County courthouse," Armstead wrote. "Municipal Water asserts that because the circuit court judge is a potential class member his 'impartiality is reasonably and necessarily questioned. It is not disputed that [the circuit court judge] had more than a de minimus interest in the proceeding and a clear economic interest in the subject matter in controversy when he certified the class.'"

To avoid the appearance of impropriety, the McGraw had a duty to disqualify himself, Municipal Water argued, and the Supreme Court agreed.

"In the present case, the circuit court judge is a potential class member and could be entitled to recover financially if the class action is successful," Armstead wrote. "We find that this potential financial interest creates an appearance of impropriety."

McGraw appropriately requested that he be recused from presiding over further action in this matter and the Supreme Court granted that motion, Armstead wrote.

"However, because the circuit court judge granted the class certification order prior to his disqualification, and because this certification order is the central issue in this litigation, we find that Municipal Water’s writ challenging the circuit court’s March 12, 2019, order certifying the class must be granted," Armstead wrote.

The Supreme Court found that the Circuit Court's order did not contain a thorough analysis of the Rule 23(a) factors and that because the circuit court failed to conduct a thorough analysis of the Rule 23(a) factors, the order granting class certification must be vacated.

West Virginia Supreme Court of Appeals case number 19-0404

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