Jack S. Kaplan Bryan R. Cokeley
Allan N. Karlan Jan L. Fox
Morgantown, West Virginia Steptoe & Johnson
Attorneys for Relators Charleston, West Virginia
Attorneys for Respondents
Gretchen Lewis and James Turner
JUSTICE CLECKLEY delivered the Opinion of the Court.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE ALBRIGHT did not participate.
1. W. Va. Code, 56-1-1(b) (1986), is the exclusive authority for a
discretionary transfer or change of venue and any other transfer or change of venue from one
county to another within West Virginia that is not explicitly permitted by the statute is
impermissible and forbidden.
In this original proceeding for a writ of prohibition, we are asked to answer the
question left unresolved in State ex rel. Smith v. Maynard, 193 W. Va. 1, 454 S.E.2d 46
(1994); namely, whether the 1986 revisions to W. Va. Code, 56-1-1(b) (1986),See footnote 1 preclude
other discretionary transfers of venue not explicitly authorized by the statute. We hold that
W. Va. Code, 56-1-1(b), is the exclusive authority for a discretionary transfer or change of
venue and any other transfer or change of venue from one county to another within West
Virginia that is not explicitly permitted by the statute is impermissible and forbidden.
In August of 1994, the defendants Gretchen Lewis and James Turner filed a
motion to transfer the case from Kanawha County to Lewis County based on W. Va. Code,
56-9-1 (1939),See footnote 2 and the doctrine of forum non conveniens. On October 31, 1994, a hearing was held on the motion to transfer. The defendants argued that for convenience in litigation
the case should be transferred to Lewis County as that is the county in which the plaintiffs
reside, the hospital is located, and the majority of witnesses to be called for trial reside. The
defendants argued that the only connection to Kanawha County is the fact Gretchen Lewis
resides in that county. Otherwise, the entire case concerns events occurring in Lewis
County.
At the hearing, the plaintiffs responded that venue was appropriate in this case
as one of the defendants resides in Kanawha County.See footnote 3 Furthermore, they argued that preference should be given to their choice of county in which to file the case and that the
defendants failed to overcome the presumption that the case should remain in Kanawha
County. They argued the hospital is under the control of the Department of Health and
Human Resources, certain witnesses are located in Kanawha County, and documents relied
upon to answer certain interrogatories were obtained in Kanawha County. Finally, it was
argued that due to the sensitive nature of the sexual harassment allegations, Mrs. Riffle
would prefer not to testify in her home county.
After reviewing the briefs of the parties and hearing oral arguments on this
issue, the circuit court ruled from the bench that the case should be transferred from
Kanawha County to Lewis County. The circuit court specifically found that,
notwithstanding the fact the Circuit Court of Kanawha County had venue to hear the case,
"the most convenient and the most appropriate forum is Lewis County."
The normal deference accorded to a circuit court's decision to transfer a case,
Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Co., __ W. Va. __, 460
S.E.2d 1 (1994) ("[a] circuit court's decision to invoke the doctrine of forum non conveniens
will not be reversed unless it is found that the circuit court abused its discretion"), does not apply where the law is misapplied or where the decision to transfer hinges on an
interpretation of a controlling statute. See Mildred L.M. v. John O.F., 192 W. Va. 345, 350,
452 S.E.2d 436, 441 (1994) ("[t]his Court reviews questions of statutory interpretation de
novo"). Under these circumstances, our review is plenary.
Because of the way the issues were formulated, the parties attach great
significance to the scope and breadth of a circuit court's discretion under our case law. For
instance, the relators strenuously argue that because State ex rel. Smith v. Maynard, supra,
is not directly applicable to this case, "Kanawha County is a county of preference under
W. Va. §14-2-2. Therefore, the case must be evaluated under traditional law of forum non
conveniens." Under the traditional doctrine of forum non conveniens, the relators claim the
circuit court abused its discretion. The respondents maintain with equal vigor that the circuit
court has not abused its discretion. These arguments, in our judgment, deflect attention from
the more important question presented by the circuit court's ruling. Succinctly stated, we
must squarely decide whether W. Va. Code, 56-1-1(b), superseded and rendered inapplicable
the doctrine of forum non conveniens as previously defined.See footnote 5
To be clear, the West Virginia Legislature is the paramount authority for
deciding and resolving policy issues pertaining to venue matters.See footnote 6 Once the Legislature
indicates its preference by the enactment of a statute, the Court's role is limited. Our duty
is to interpret the statute, not to expand or enlarge upon it. State ex rel. Frazier v. Meadows,
193 W. Va. 20, 23-24, 454 S.E.2d 65, 68-69 (1994). More significantly, any subsequent
policy changes must come from the Legislature itself and, in the absence of constitutional
or statutory authority to the contrary, this Court has no blanket power to recast the statute to
meet its fancy. State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., ___ W. Va. ___,
461 S.E.2d 516 (1995).
It has been emphasized repeatedly that "the starting point in every case
involving construction of a statute is the language of the statute itself." Landreth Timber Co.
v. Landreth, 471 U.S. 681, 685, 105 S. Ct. 2297, 2301, 85 L.Ed.2d 692, 697 (1985). W. Va.
Code, 56-1-1(b), provides as follows:
"Whenever a civil action or proceeding is brought
in the county wherein the cause of action arose, under the provisions of subsection (a) of this section, if no defendant
resides in such county, a defendant to the action or proceeding
may move the court before which the action is pending for a
change of venue to a county wherein one or more of the
defendants resides, and upon a showing by the moving
defendant that the county to which the proposed change of
venue would be made would better afford convenience to the
parties litigant and the witnesses likely to be called, and if the
ends of justice would be better served by such change of venue,
the court may grant such motion."
By its terms, this statute indicates the procedural area in which this new
revision is to have effect, that being, intra-State venue disputes.See footnote 7 As many courts have done
in the past, because this statute appears to abrogate our recently developed common law rule
in the area of forum non conveniens, our initial task is to analyze with care this legislative
enactment to determine what impact this revision has to factual situations such as are
presented in this case. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392, 90 S. Ct.
1772, 1783, 26 L.Ed.2d 339, 352 (1970), the United States Supreme Court made the
following observations:
"In many cases the scope of a statute may reflect nothing more
than the dimensions of the particular problem that came to the
attention of the legislature, inviting the conclusion that the
legislative policy is equally applicable to other situations in
which the mischief is identical. . . . On the other hand, the
legislature may, in order to promote other, conflicting interests,
prescribe with particularity the compass of the legislative aim,
erecting a strong inference that territories beyond the boundaries so drawn are not to feel the impact of the new legislative
dispensation."
In State ex rel. Smith v. Maynard, supra, we addressed what effect the 1986
revisions contained within W. Va. Code, 56-1-1(b), had upon our common law doctrine of
forum non conveniensSee footnote 8:
"We believe it is necessary to answer the question
whether a circuit court should exercise its discretion to transfer
cases in light of our decisions interpreting W. Va. Code, 56-9-1,
or whether W. Va. Code, 56-1-1(b), has superseded and
removed those cases as guiding precedents. We hold that
W. Va. Code, 56-1-1(b), exclusively controls a transfer decision
where its prerequisites have been met; namely, the forum
selected is where the cause of action arose, and the defendant
resides in another county and requests the case be transferred to
that county. In other words, where W. Va. Code, 56-1-1(b),
applies, its explicit provisions render inapplicable the doctrine
of forum non conveniens. As a consequence, to the extent that
the West Virginia doctrine of forum non conveniens has
survived this new statutory enactment, it applies only where W.
Va. Code, 56-1-1(b), does not apply." 193 W. Va. at ___, 454
S.E.2d at 52.
Both sides to this appeal acknowledge the specific question we must answer
was deliberately left unresolved in Maynard. Today, we address that issue. It is clear to us that when the West Virginia Legislature adopted W. Va. Code, 56-1-1(b), it intended to do
more than codify our existing decisional law on forum non conveniens. When the
Legislature places strict limits on the application of an old legal doctrine, it is in a revisionary
mode. Indeed, the plain language of the statute indicates the Legislature "was revising as
well as codifying." Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S. Ct. 544, 546, 99 L.Ed.
789, 793 (1955). Again, in Maynard, we stated:
"W. Va. Code, 56-1-1, was enacted after our
decision in Hinkle, 164 W. Va. 112, 262 S.E.2d 744 (1979).
Without giving 28 U.S.C. § 1404 the analysis we give it in this
opinion, we adopted the doctrine of forum non conveniens in
note 13 of Hinkle, 164 W. Va. at 124, 262 S.E.2d at 751. We
may 'assume that our elected representatives . . . know the law.'
Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.
Ct. 1946, 1957-58, 60 L.Ed.2d 560, 575-76 (1979). Thus, it is
logical that the West Virginia legislature was fully aware of this
Court's formulation of the forum non conveniens doctrine and,
in its wisdom, chose to revise it." 193 W. Va. at ___, 454
S.E.2d at 53. (Footnote omitted).
Our law of forum non conveniens was broad and permitted circuit courts
enormous discretion in its application.See footnote 9 It may well be that the Legislature believed the
discretion was too broad and that it licensed circuit courts to "set adrift on an uncharted sea,
to order transfers according to their personal notions of justice." Norwood, 249 U.S. at 34, 75 S. Ct. at 548, 99 L.Ed. at 794. (Clark, J., dissenting). We do not believe it is
unreasonable for the West Virginia Legislature to have found that the doctrine of forum non
conveniens, as developed by our decisions, swept more broadly than its justification.See footnote 10 It
must be underscored that it has been the policy in this State and country that, unless a statute
provided otherwise, the plaintiff's choice of forum should rarely be disturbed. Gulf Oil Corp.
v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947). We need not
pronounce a verdict on whether the doctrine of forum non conveniens, as developed by this
Court, was a wise extrapolation of decisional law then in existence. A development of major
significance has intervened making it clear that the Legislature not only changed the
landscape of forum non conveniens, but it did more: it limited its application to a fact-
specific situation. Considering the specific language of the statute, we do not believe the
Legislature intended that the old doctrine was to continue.See footnote 11 It has been a mainstay of Anglo-
American jurisprudence that the common law gives way to a specific statute that is
inconsistent with it; when a statute is designed as a revision of a whole body of law applicable to a given subject, it supersedes the common law. William N. Eskridge, Jr., &
Phillip P. Frickey, Cases and Materials On Legislation: Statutes And The Creation of the
Public Policy 690 (1988). In our view, the enactment of W. Va. Code, 56-1-1(b), represents
the wholesale abandonment of the doctrine of forum non conveniens in all areas of intra-
State transfers, quite evidently prompted by the sense of overbroad judicial discretion in its
application.
W. Va. Code, 56-1-1(b), has no language whatsoever permitting transfers of
the type granted by the circuit court. Expressio unius est exclusio alterius (express mention
of one thing implies exclusion of all others) is a well-accepted canon of statutory
construction. Brockway Glass Co. Inc., Glassware Div. v. Caryl, 183 W. Va. 122, 394
S.E.2d 524 (1990); Dotts v. Taressa J.A., 182 W. Va. 586, 591, 390 S.E.2d 568, 573 (1990);
McGlone v. Superior Trucking Co., Inc., 178 W. Va. 659, 663, 363 S.E.2d 736, 740 (1987).
If the Legislature explicitly limits application of a doctrine or rule to one specific factual
situation and omits to apply the doctrine to any other situation, courts should assume the
omission was intentional; courts should infer the Legislature intended the limited rule would
not apply to any other situation. Hence, a statute which specifically provides that a thing is
to be done in a particular manner, normally implies that it shall not be done in any other
manner. See 73 Am. Jur. 2d Statutes § 211 (1974). "This canon is a product of logic and
common sense, and it has special force when the statutory scheme is carefully drafted." State
v. Sugg, 193 W. Va. 388, ___ n.14, 456 S.E.2d 469, 482 n.14 (1995). The parties do not question nor discuss the quality of the statute, and we expressly find that our venue statutes
are carefully sculpted and are the product of a legislative process culminating with the 1986
revisions.
In addition to application of the expressio unius est exclusio alterius rule of
statutory construction, we find our conclusion that the Legislature intended to exclude and
abolish all other intra-State applications of the doctrine of forum non conveniens not
expressly codified is compelled by both reason and common sense. To conclude otherwise
would mean the Legislature did a useless act. Prior to the 1986 revisions, our common law
doctrine of forum non conveniens permitted a circuit court to do exactly what the Legislature
provided in the revisions. To suggest that the Legislature only wanted to continue to give
circuit courts explicit discretion in this specific area, when that authority already existed
under common law, would undermine the wisdom of the Legislature in determining policy
matters. The 1986 revisions limited as well as authorized judicial discretion in this area. To
be clear, the argument that the doctrine of forum non conveniens is helpful in the
administration of justice in this State has force, but it is properly addressed to the West
Virginia Legislature and not to this Court. See State v. Evans, 170 W. Va. 3, 5, 287 S.E.2d
922, 924 (1982) ("[s]hould 'reason and experience' dictate a change in that statute, it is up
to our legislature to draft and pass appropriate modifications"). If we have erred in our
construction of this statute, the Legislature may and should reassert its will.
To recapitulate, we hold that W. Va. Code, 56-1-1(b), is the exclusive authority
for a discretionary transfer or change of venue and any other transfer or change of venue
from one county to another within West Virginia that is not explicitly permitted by the
statute is impermissible and forbidden. Therefore, the writ of prohibition is granted.
Writ granted.
"Whenever a civil action or proceeding is brought in the county wherein the cause of action arose, under the provisions of subsection (a) of this section, if no defendant resides in such county, a defendant to the action or proceeding may move the court before which the action is pending for a change of venue to a county wherein one or more of the defendants resides, and upon a showing by the moving defendant that the county to which the proposed change of venue would be made would better afford convenience to the parties litigant and the witnesses likely to be called, and if the ends of justice would be better served by such change of venue, the court may grant such motion."
"A circuit court, or any court of limited
jurisdiction established pursuant to the provisions of section
1, article VIII of the Constitution of this State, wherein an
action, suit, motion or other civil proceeding is pending, or
the judge thereof in vacation, may on the motion of any party,
after ten days' notice to the adverse party or his attorney, and
for good cause shown, order such action, suit, motion or other
civil proceeding to be removed, if pending in a circuit court,
to any other circuit court, and if pending in any court of
limited jurisdiction hereinbefore mentioned to the circuit
court of that county: Provided, that the judge of such other
circuit court in a case of removal from one circuit to another
may decline to hear said cause, if, in his opinion, the demands
and requirements of his office render it improper or
inconvenient for him to do so."
"Any civil action or other proceeding, except
where it is otherwise specially provided, may hereafter be
brought in the circuit court of any county:
"(1) Wherein any of the defendants may reside
or the cause of action arose, except that an action of ejectment
or unlawful detainer must be brought in the county wherein
the land sought to be recovered or some part thereof, is[.]"
" Transfer from the District for Trial. (a) For
Prejudice in the District. The court upon motion of the
defendant shall transfer the proceeding as to that defendant to
another district whether or not such district is specified in the
defendant's motion if the court is satisfied that there exists in
the district where the prosecution is pending so great a
prejudice against the defendant that the defendant cannot
obtain a fair and impartial trial at any place fixed by law for
holding court in that district.
"(b) Transfer in Other Cases. For the
convenience of parties and witnesses, and in the interest of
justice, the court upon motion of the defendant may transfer
the proceeding as to that defendant or any one or more of the
counts thereof to another district."
Rule 21(a) is similar to W. Va. Code, 56-9-1. It may be invoked successfully only when
the circuit court is persuaded that the prejudice is such that unless abated will deprive the
parties of a fair trial. Historically, good cause in the context of this statute means the
moving party must demonstrate prejudice. See Pittsburgh, Wheeling & Ky. R. Co. v.
Applegate & Son, 21 W. Va. 172 (1882). The good cause referred to in this section
applies to situations where the judge is disqualified, see Forest Coal Co. v. Doolittle, 54
W. Va. 210, 46 S.E. 238 (1903); where an uninterested and unbiased jury cannot be
found in the circuit where the suit was originally filed, see Ingersoll v. Wilson, 2 W. Va.
59 (1867); or where the clerk of the court is a party litigant. See Hunter v. Beckley
Newspaper Corp., 129 W. Va. 302, 40 S.E.2d 332 (1946).
Although some of our cases inartfully refer to W. Va. Code, 56-9-1, as a
forum non conveniens statute, see Norfolk and Western Ry. Co. v. Tsapis, 184 W. Va.
231, 236, 400 S.E.2d 239, 244 (1990) ("[w]e also recognize that W. Va. Code, 56-9-1
(1939), which provides a mechanism for transfer of cases within the circuit courts of this
State, operates as an intercircuit forum non conveniens"), our recent interpretation of
W. Va Code, 56-1-1, sub silentio overruled those cases. We stated in State ex rel Smith
v. Maynard, 193 W.Va. at ___, 454 S.E.2d at 50-51:
"In deciding this matter, it is essential to
distinguish between W. Va. Code, 56-9-1, and W. Va. Code,
56-1-1(b). W. Va. Code, 56-9-1, is a general provision for
transferring cases from one circuit court to another circuit
court. On the other hand, W. Va. Code, 56-1-1, is a general
venue statute." (Footnote omitted).
More importantly, transfers under W. Va. Code, 56-9-1, are not automatic.
In referring to W. Va. Code, 56-9-1, this Court stated:
"[T]his procedure is not automatic and is subject to the
approval of the chief justice of this Court who, by virtue of
Article VIII, Section 3 of the West Virginia Constitution,
serves as 'the administrative head of all courts.' Moreover,
this same section enables the chief justice to assign a judge
'from one circuit to another,' so that it may be more
expeditious to bring in a judge rather than transfer the case to
another circuit." Norfolk and Western Ry. Co. v. Tsapis, 184
W. Va. at 236, 400 S.E.2d at 244.
The issue sub judice is not one under the good cause provision of W. Va.
Code, 56-9-1, but is one concerning the most convenient venue to try this action. Even if
we believed there was conflict between the statutes, we would resolve such tension in
favor of the more recent and specific statute. See State ex rel. Simpkins v. Harvey, 172
W. Va. 312, 305 S.E.2d 268 (1983).
The parties place too much emphasis on W. Va. Code, 56-9-1, as an independent statutory source for a transfer to another circuit based upon the convenience of the parties and the witnesses. In our judgment, this section is not applicable to the discretionary intercircuit transfers discussed in W. Va. Code, 56-1-1(b). More importantly, the circuit court did not rely upon this section in making its ruling. The order entered by the circuit court did not mention good cause within the contemplation of W. Va. Code, 56-9-1. Rather, the order transferred the case due to the convenience of the parties. Furthermore, the appropriate procedures were not invoked to effectuate a transfer under W. Va. Code, 56-9-1. Finally, today's holding makes clear that W. Va. Code, 56- 1-1(b), is the exclusive authority for a forum non conveniens intercircuit transfer. W. Va. Code, 56-1-1(b), is analogous to Rule 21(b) cited above.
"At bottom, the doctrine of forum non conveniens is nothing
more or less than a supervening venue provision, permitting
displacement of the ordinary rules of venue when, in light of
certain conditions, the trial court thinks that jurisdiction ought
to be declined. But venue is a matter that goes to process
rather than substantive rights--determining which among
various competent courts will decide the case."
In Syllabus Point 1 of Cannelton Industries, Inc. v. Aetna Casualty & Surety Co., supra,
we stated:
"'The common law doctrine of forum non
conveniens is simply that a court may, in its sound discretion,
decline to exercise jurisdiction to promote the convenience of
witnesses and the ends of justice, even when jurisdiction and
venue are authorized by the letter of a statute.' Syllabus point
1, Norfolk & Western Railway Co. v. Tsapis, 184 W. Va.
231, 400 S.E.2d 239 (1990)."