647 S.E.2d 848
I dissent from such a ridiculous holding. First and foremost, I dissent because
the statute is plainly unconstitutional, violating every notion of separation of the powers
constitutionally vested in each branch of government. Second, the cases cited as support
for the opinion simply don't support the opinion _ in fact, the cases suggest the exact
opposite result. And not just a few of the cases. All of them.
W.Va. Code, 55-17-3(a) is a flagrant violation of all notions of separation of powers. The Legislature cannot constitutionally pass a law that deprives the courts of jurisdiction over certain kinds of cases. Yet the majority's opinion suggests that the law may reach just that result.
The West Virginia Constitution states that “[t]he judicial power of the State shall be vested solely . . . in the circuit courts,” (See footnote 1) and states that circuit courts
shall have original and general jurisdiction of all civil cases at
law where the value or amount in controversy, exclusive of
interest and costs, exceeds one hundred dollars unless such
value or amount is increased by the legislature[.]
Id., Art. VIII, § 6. The Constitution gives the Legislature only one opportunity to tinker with
the civil case jurisdiction of the circuit court, and that is to increase the “amount in
controversy” requirement. Expressio unius est exclusio alterius, the express mention of one
thing implies the exclusion of another, applies when reading this section of the Constitution.
The Constitution doesn't give the Legislature the power to limit a circuit court's civil case
jurisdiction by imposing pre-suit notice requirements. W.Va. Code, 55-17-3(a) therefore
violates section 6 of Article VIII of our Constitution, because the statute attempts to limit the
civil case jurisdiction of the circuit courts.
The statute also violates section 1 of Article VIII of our Constitution, because it makes pre-suit notice to members of the Executive and the Legislative branches a prerequisite to filing a lawsuit against the State. This section of the Constitution places all judicial power in the courts _ yet the statute seizes for the Executive and the Legislative branches a measure of authority over the operation of the Judiciary.
The members of the majority _ as they have done in the past _ continue to
abdicate the judicial power of the courts to the Executive and Legislative branches. Piece
by piece, bit by bit, the Legislature has gnawed away at the Court's constitutional duties,
responsibilities and powers. The courts were designed by the Founding Fathers _ of our
Nation and our State _ to be a check and a balance against the powers of the Executive and
Legislative branches. I dissent because the majority opinion gives the green light to the
Legislature to continue passing laws that minimize the Judiciary's role in government, and
that limit the people's ability to access the courts to receive justice.
So why do I have a problem with this tried-and-true system of opinion writing? The reason those other state courts (and the federal courts) found their particular notice statutes to be jurisdictional is obvious: unlike West Virginia, those states' statutes explicitly make pre-suit notice jurisdictional. The majority opinion does not make this clear, and never points out that West Virginia's statute is totally different from all those other statutes.
In fact, none of the cases from federal and other state jurisdictions quoted by the majority opinion ever “interprets” a statute. The majority opinion quotes cases from state courts in Colorado, Connecticut, Georgia, Indiana, Kansas, Maine, Mississippi, Utah, Virginia, Wyoming, as well as district and federal circuit courts of the United States, as examples of courts consistently recognizing that the filing of pre-suit notice in an action against a governmental entity is a jurisdictional prerequisite. (See footnote 2) The cases interpret nothing, but rather apply clear statutory language making pre-suit notification a jurisdictional prerequisite.
The language of the statutes relied upon in the majority opinion simply is not found in West Virginia's statute. W.Va. Code, 55-17-3(a) is vastly different from all of the state and federal statutes relied upon by the majority opinion, and says absolutely nothing about pre-suit notification being jurisdictional. The majority opinion didn't “find” notice to be a jurisdictional prerequisite; the majority wrote it into the statute on a whim.
Furthermore, the opinion says that while some courts find their state's pre-suit notice statutes are not jurisdictional, those “other courts deem such non-compliance with statutory requirements to be a bar or defense to suit.” ___ W.Va. at ___, ___ S.E.2d at ___ (Slip Op. at 14). In reality, those courts said something directly opposite. Those courts actually do appear to interpret a vague state law, but they interpret their statutes to mean that plaintiffs can still proceed with their lawsuit even without giving pre-suit notice. For example, Minnesota held in Naylor v. Minnesota Daily, 342 NW.2d 632, 634 (Minn. 1984) that the state notice statute was not a jurisdictional bar to suit. The Minnesota court found that if a plaintiff fails to give notice, a jury “could consider the effect of the failure to receive notice in determining liability or damages. But the case may not be dismissed.” Similarly, the court in University of Texas Southwestern Medical Center v. Loutzenhiser, 140 S.W.2d 351 (Tex. 2004) said that “the failure to give notice of a claim . . . does not deprive a court of subject matter jurisdiction over an action on the claim.”
I would have written the majority opinion to hold that W.Va. Code, 55-17-3(a) is not a jurisdictional bar to suit, and that the failure to give pre-suit notice does not deprive a court of subject matter jurisdiction. However, notice by the plaintiff to the various state agencies / actors _ presuming such a notice requirement isn't flagrantly unconstitutional _ should be compelled before the case proceeds further, and the failure to give pre-suit notice can be considered by a jury in determining liability or damages.
I therefore respectfully dissent.