1. Allstate Wrecker Service v. Kanawha County Sheriff’s Department, No. 010709. Plaintiffs appeal from the circuit court’s order granting summary judgment in favor of defendants in this action for a violation of the West Virginia Anti-Trust Act, conspiracy, restraint of trade and tortious interference with business relations.

Accept to Motion Docket

 

2. Mercer County Board of Education v. Kitty Townsend, No. 010796. Grievant appeals from the circuit court’s order denying her seniority credit for the time that she was employed as a long-term substitute teacher.

Grant 4-1
[Davis, J.]

 

3. Sue Ann Shroyer v. Harrison County Board of Education, No. 010798. Petitioner appeals from the circuit court’s order affirming the decision of the West Virginia Education and State Employee’s Grievance Board denying petitioner’s grievance.

Accept to Motion Docket

 

4. State of West Virginia ex rel. James Farris v. Howard Painter, Warden, No. 010801. Petitioner appeals from the circuit court’s denial of his petition for habeas corpus relief.

Refuse 5-0

 

5. State of West Virginia v. Robert McClain, No. 010810. Defendant appeals from the circuit court’s denial of his Rule 35 Motion to Correct Sentence.

Grant 5-0

 

 

6. State of West Virginia v. Robert D. Copen, No. 010849. Defendant appeals from his conviction for first degree murder. He was sentenced to life in prison without the possibility of parole.

Accept to Motion Docket

Justices Starcher and Albright would grant the defendants’s petition and would have this matter fully briefed and set on the argument docket. They state, as grounds for this position, as follows:

We believe that the Court should give full appellate review, with full briefing and oral argument, to all cases involving life imprisonment. Our reasons are somewhat overlapping.

First, without full state court appellate review, such criminal convictions do not have any sort of "stamp of approval" or presumption of correctness, in any subsequent or collateral proceeding -- for example, in federal or state habeas corpus. As an example, this Court recently refused to review a life-with-no-parole murder conviction. Then, the Supreme Court of the United States reversed this Court, saying that the conviction may have violated established constitutional law, and remanded the matter for further proceedings. Flippo v. W.Va., 528 U.S. 11, 120 S.Ct. 7, 145 L.Ed.2d 16 (1999). (Justice Starcher notes that he voted not to review this case, a vote of which he now repents.) The Supreme Court noted that the last court to rule on the merits of the case was the Circuit Court of Fayette County. We find this rather embarrassing -- to have a West Virginia trial court’s errors fixed by the "the U.S. Supremes" -- without this Court even taking a look at the issues first. Moreover, the day my well come when the Supreme Court of the United States (or even this Court) requires full appellate review of such cases as a matter of due process. We would support such a position. If that day comes, this Court does not want to find itself in a position of having to deal with whether such a ruling might be retroactive.

Second, merely looking at the appeal petitions in these cases means we do not get the benefit of the West Virginia Attorney General’s review -- as is ordinarily the case when a petition is accepted, briefed, and argued. When there is a full review, the Attorney General’s office will often recognize and acknowledge clear error when it is present -- although they may argue that such error was harmless. Simply put, Attorney General involvement means better quality briefs and argument, and improves the quality of justice.

Third, full appellate review assures that important issues in these "life imprisonment" cases are brought to the attention of the bar generally, and can be followed by interested lawyers. When cases are briefed and argued and an opinion is to be written, amici or other voices may ask to be heard on important issues.

Fourth, our criminal jurisprudence is better reasoned and developed when such cases are briefed and dealt with in an opinion. Where we uphold a conviction (as we do in most cases), opinion writing forces the Court to consciously recognize and articulate its reasoning. Additionally, as one of three co-equal branches of government, we have a duty to reflect on what is going on in our court system and our broader society, that leads to such severe criminal sentences.

Fifth, when the Court accepts life imprisonment cases for full briefing and argument, we can (in appropriate cases) appoint new counsel, so that exceptionally important issues will be properly presented. It is apparent to us that some defendants do not have their issues well raised due to inexperienced counsel preparing their petitions. Regrettably, but inescapably, the quality of an appeal petition can make some difference as to whether or not we accept a case for full argument.

Finally, we should have these cases argued and briefed because the consequences of error at trial are so extreme. In Illinois, since the reinstatement of the death penalty, as many people as have been executed have been freed from death row, due to trial errors. Here in West Virginia, we know all about the Fred Zain case. We know that trials can be unfair, and criminal convictions can be downright wrong. Where the sentence is of life imprisonment, simple fairness means that we must take the steps that will try to detect any unfairness in the proceedings that led to the sentence.

 

 

7. Harvest Capital v. WV Department of Energy, Division of Environmental Protection, No. 010627. The petitioners, Harvest Capital, 51 Systems, Inc., and Design Fuels Corporation, appeal from summary judgments entered in the Circuit Court of Kanawha County in favor of the respondents, the West Virginia Department of Energy and Ground Breakers, Inc. In so ruling, the Circuit Court determined that the respondents acted properly in initiating and conducting reclamation activities upon the petitioners’ property after the petitioners’ mining permit was revoked. The petitioners contend that the reclamation violated their right to due process of law.

Refuse 5-0

 

8. Harvest Capital v. WV Department of Energy, Division of Environmental Protection, No. 010800. The petitioner, West Virginia Department of Energy, appeals from a summary judgment entered in the Circuit Court of Kanawha County in favor of the respondent, Ground Breakers, Inc. The summary judgment was based upon respondent Ground Breakers’ cross-claim against the petitioner i.e., Ground Breakers alleged that the contract under which it performed reclamation for the petitioner allowed Ground Breakers to recover from the petitioner its legal fees and costs incurred in defending Harvest Capital, et al. v. West Virginia Department of Energy, et al., case no. 010627.

Grant  5-0

 

 

9. A. T. Applegate v. Vijay Jain, No. 010853. The petitioner, Vijay K. Jain, appeals from a $32,500 default judgment entered in the Circuit Court of Kanawha County in favor of the respondents, A. T. and Doris Applegate. The action concerned damage to real property allegedly caused by the petitioner, and the Circuit Court entered the default judgment because the petitioner failed to appear for trial. The petitioner contends that the Circuit Court committed error in not following the proper procedures for entering a default judgment.

Refuse 5-0

 

10. Farmers & Mechanics Mutual Ins. Co. v. Brenda Cook, No. 010857. The petitioner, Leah D. Buckler, challenges a summary judgment entered in the Circuit Court of Hardy County in favor of the respondent, Farmers and Mechanics Mutual Insurance Company. In the underlying action, Ms. Buckler alleged a wrongful death claim against Gerald and Brenda Cook arising from the shooting death of Homer G. Buckler. See, State v. Brenda Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999). The respondent insurer, Farmers and Mechanics, filed a declaratory judgment action alleging that, although it issued a homeowners insurance policy to the Cooks, it had no duty to provide the Cooks with coverage or to defend the wrongful death action, since the acts of the Cooks toward Mr. Buckler were intentional. The petitioner contends that the question of the Cooks’ intent should have been resolved by a jury.

Grant   5-0

 

 

11. Farmers & Mechanics Mutual Ins. Co. v. Brenda Cook, No. 010858. The petitioners, Gerald Cook and Brenda Cook, challenge a summary judgment entered in the Circuit Court of Hardy County in favor of the respondent, Farmers and Mechanics Mutual Insurance Company. In the underlying action, Leah D. Buckler. See, State v. Brenda Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999). The respondent insurer, Farmers and Mechanics, filed a declaratory judgment action alleging that, although it issued a homeowners insurance policy to the Cooks, it had no duty to provide the Cooks with coverage or to defend the wrongful death action, since the acts of the Cooks toward Mr. Buckler were intentional. The petitioners contend that their acts did not fall within the "intentional acts exclusion" of the policy.

Grant   5-0

 

 

12. Bonnie L. Ranson v. Women’s Health Center of West Virginia, Inc., No. 010860. The petitioner, West Virginia Insurance Guaranty Association, appeals from a summary judgment entered in the Circuit Court of Kanawha County in favor of the respondent, Associated Radiologists, Inc. In the underlying action, an injured plaintiff sued the respondent for medical negligence, and, later the respondent’s insurer became insolvent, resulting in payment obligations by the petitioner. In granting summary judgment, the Circuit Court required the petitioner to pay a $300,000 statutory cap with regard to an excess policy issued by the insolvent insurer, even though the petitioner had already paid a $300,000 statutory cap as to the primary policy issued by the insolvent insurer. The petitioner contends that the Circuit Court committed error in requiring the "double payment" of the statutory cap.

Refuse 5-0

 

 

13. Patricia Castello v. Robert Witchey, No. 010866. This is a motor vehicle accident case wherein the petitioner, State Farm Mutual Automobile Insurance Company (the underinsurance carrier defending in the name of Robert A. Witchey), appeals from a jury verdict returned in the Circuit Court of Ohio County in favor of the respondents, Patricia Castello et al. According to State Farm: (1) the respondents’ alleged damages were not supported by the evidence at trial and (2) State Farm’s underinsurance coverage was never even triggered, since the Castellos failed to exhaust all available bodily injury liability limits.

Refuse 5-0

 

 

14. James Waddell v. Clay County Commission, No. 010870. The petitioner, James A. Waddell, appeals from a summary judgment entered in the Circuit Court of Clay County in favor of the respondents, Clay Commission and Clay County Emergency Ambulance Authority. In granting summary judgment, the Circuit Court concluded that a meeting held by the respondents on June 22, 1998, without notice to the public, did not violate the West Virginia Open Governmental Proceedings Act, W.Va. Code, 6-9A-1 [1999], et seq. The petitioner contends, however, that inasmuch as the respondents deliberated at the meeting upon an issue which was voted upon the following day, the respondents violated the Act.

Accept to Motion Docket

 

 

15. State of West Virginia ex rel. William Thomas Davis v. The Honorable James P. Mazzone, Judge of the Circuit Court of Ohio County, West Virginia and The Honorable Scott R. Smith, Prosecuting Attorney of Ohio County, West Virginia and The Honorable James Spencer, Administrator of the Northern Regional Jail, No. 010703. In this original habeas corpus proceeding, the petitioner, William Thomas Davis, challenges the revocation of his release upon bail. In the underlying case, the petitioner was charged with breaking and entering, fleeing law enforcement officers and conspiracy to commit a breaking and entering. The Circuit Court revoked the petitioner’s bail upon the ground that the petitioner had voluntarily been in the presence of his co-defendant. The petitioner contends that the Circuit Court failed to conduct a thorough hearing prior to revoking his bail.

Refuse as Moot   5-0