Topical Index of Opinions

Summarizing signed opinions from the September 1989
Term through the September 1998 Term

In Re: Beth Ann B. And Courtney Danielle B., No. 25210 (December 16, 1998)(Workman, J.) (McCuskey, J., participating)(McGraw, J., not participating): ___ W. Va. ___, ___S.E.2d ___ [1998 WL 874944]

The Court reversed and remanded this matter to the lower court with directions to conduct a disposition hearing for the limited purposes of ascertaining whether the mother: (1) fully understood the contents of an agreed order and the consequences of the termination of parental rights; (2) was aware of possible less drastic alternatives than termination; (3) voluntarily consented to the termination; and (4) was informed of the right to a disposition hearing. The Court held that even when a parent has signed an agreed order stipulating to the predicate facts necessary for termination of the parent=s rights, the lower court must hold a disposition hearing in which the specific inquiries enumerated in Rules 33 and 35 of the Rules of Procedure for Child Abuse and Neglect Proceedings are made prior to terminating an individual=s parental rights.

In Re: The Petition of Robert Jeffries and Judy Jeffries, his wife, for the adoption of Rebecca L. Jeffries, an infant, No. 25198 (December 14, 1998)(Starcher, J.)(McCuskey, J., participating)(McGraw, J., not participating): ___ W. Va. ___, 512 S.E.2d 873:

The court reversed and remanded an action involving the issue of whether a biological father of a child abandoned the child. The Court held that Afor a natural parent to avoid the presumption that he or she has abandoned the child who is over the age of 6 months, W. Va. Code ' 48-4-3(c)(a)(1) [1997] requires the parent to financially support the child, within the means of the parent. Furthermore, W. Va. Code ' 48-4-3(c)(a)(2)[1997] requires a parent to visit or otherwise communicate with the child when the parent: (1) knows where the child resides; (2) is physically and financially able to do so; and (3) is not prevented by the person or authorized agency having the care or custody of the child. If there is evidence in a subsequent adoption proceeding that the natural parent has both failed to both financially support the child, and failed to visit or otherwise communicate with the child in the 6 months preceding the filing of the adoption petition, a circuit court shall presume the child has been abandoned.@

State of West Virginia v. Ardyce C. Bull and Michael P. Bull, No. 25179 (December 4, 1998)(Starcher, J.): ___ W. Va. ___, 512 S.E.2d 177:

The Court affirmed the appellant=s convictions of violations of W. Va. Code ' 9-6-15(b), which established the criminal offense of abuse or neglect of an incapacitated adult. The Court concluded that the language of W. Va. Code ' 9-6-15(b) and its associated definitional sections defining the terms Aincapacitated adult,@ Aabused,@ Aemergency situation@ and Aneglect,@ should leave no doubt in the mind of a reasonable person as to the conduct that is declared to be subject to criminal prosecution and penalty. Thus, the Court held that W. Va. Code ' 9-6-15(b) is not unconstitutionally vague. The Court also rejected the appellant=s contention that the indictments should have been dismissed because they used language in the disjunctive Aor@ as opposed to the conjunctive Aand.@

In Re: Harley C., No. 25160 (November 23, 1998)(Maynard, J.): ___ W. Va. ___, 509 S.E.2d 875:

Reversing and remanding, the Court found the child at issue to be abused. The trial court order restoring permanent custody to the biological parents was reversed. The Court reiterated that Aimplicit in the definition of an abused child under W. Va. Code ' 49-1-3 (1995) is the child whose health or welfare is harmed or threatened by a parent or guardian who fails to cooperate in identifying the perpetrator of abuse, rather, choosing to remain silent.@

State of West Virginia v. Michael M., II and Angela H. AND State of West Virginia v. Brianna H., infant, Travis H., father, and Melissa Y., mother AND State of West Virginia v. Tobias W., infant, et al., Nos. 24879, 24961 and 24962 (June 22, 1998)(McCuskey, J.): 202 W. Va. 350, 504 S.E.2d 177:

Reversing, in part, and remanding with directions an order of the circuit court (1) directing that several children be placed in permanent foster care, rather than adoptive homes and (2) granting post-termination visitation rights to the children's parents, the Court held, inter alia, as follows: [1] where parental rights have been terminated pursuant to W. Va. Code 49-6-5(a)(6) (1996) and it is necessary to remove the abused and/or neglected child from his or her family, an adoptive home is the preferred permanent out-of-home placement of the child; and [2] in determining the appropriate permanent out-of-home placement of a child under W. Va. Code ' 49-6-5(a)(6) (1996), the circuit court shall give priority to securing a suitable adoptive home for the child and shall consider other placement alternatives, including permanent foster care, only where the court finds that adoption would not provide custody, care, commitment, nurturing and discipline consistent with the child's best interests or where a suitable adoptive home cannot be found.

In the Interest of: Micah Allyn R., a child under the age of eighteen years, No. 24878 (June 22, 1998)(Maynard, J.)(Workman, J., concurring): 202 W. Va. 400, 504 S.E.2d 635:

Reversing and remanding the trial court=s decision in an abuse and neglect case, the Court held, inter alia, that: [1] when a parent is unable to properly care for a child due to the parent=s terminal illness, so that conditions which would constitute neglect of the child occur and continue to be threatened, termination of parental rights, without consent, is contrary to public policy, even though there is no reasonable likelihood that the conditions of neglect will be substantially corrected in the future. In such circumstances, a circuit court should ordinarily postpone or defer decision on termination of parental rights. However, such deference on the parental rights termination issue does not require a circuit court to postpone or defer decision on custody or other issues properly before the court. In fact, efforts towards locating prospective adoptive parents shall be made so long as every measure is taken to foster and maintain the bond and ongoing relationship between the parent and child.

State of West Virginia v. Julie G., natural mother of Emily G., an infant; and John F., Natural Father of Emily G., an infant, No. 24580 (December 17, 1997)(Davis, J.)(Workman, C.J. and Starcher, J., dissenting): 201 W. Va. 764, 500 S.E.2d 877:

Reversing and remanding an order finding that an infant was not a neglected child on the grounds that the circuit court failed to consider relevant evidence developed during the mother=s improvement period, the Court held, inter alia, as follows: (1) In making a determination of whether a child is an abused and/or neglected child, as defined in W. Va. Code ' 49-1-3, a court must consider evidence of a parent=s progress, or lack thereof, during the pre-adjudication improvement period. However, pursuant to W. Va. Code ' 49-6-2(c), such evidence is proper only if it relates back to conditions that existed at the time of the filing of the abuse and/or neglect petition, and that were alleged in such petition. Evidence regarding a parent=s pre-adjudication improvement period may not be used to informally amend a previously filed petitioner. The proper method of presenting a new allegation to the circuit court is by requesting permission to file an amended petition, pursuant to Rule 19 of the West Virginia Rules of Procedure for Child Abuse and Neglect Proceedings. (2) Under Rule 19 of the W. Va. Rules of Procedure for Child Abuse and Neglect Proceedings, amendments to an abuse/neglect petition may be allowed at any time before the final adjudicatory hearing begins. When modification of an abuse/neglect petition is sought, the circuit court should grant such petition absent a showing that the adverse party will not be permitted sufficient time to respond to the amendment, consistent with the intent underlying Rule 19 to permit liberal amendment of abuse/neglect petitions.

State of West Virginia ex. rel. Paul and Chris B. v. Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County; Pete and Cynthia L.S.; and Natasha Collette B., Anatoli Josef F., Alevhnia Marie B., and Olya Tess B., No. 24438 (October 24, 1997)(Davis, J.): 201 W. Va. 248, 496 S.E.2d 198:

Granting as moulded a petition for writ of prohibition, the Court ruled that a parent=s relinquishment of his/her parental rights either in anticipation of future adoption proceedings or as part of previously initiated adoption proceedings doe snot constitute abandonment for abuse and neglect purposes.

In the Matter of Taylor B., No. 23997 (July 14, 1997)(McHugh, J.): 201 W. Va. 60, 491 S.E.2d 607:

Reversing an order returning a two and a half year old child abuse victim to his parents, the Court held that the circuit court erred in not terminating the parents= parental rights where, despite the parents= denial of any abuse, the undisputed medical evidence indicated that the child=s injuries were consistent with "shaken baby syndrome". The Court remanded for development of a permanency plan and an award of supervised visitation.

In re: Joseph A. and Justin A., No. 23780 (March 26, 1997)(Maynard, J.): 199 W. Va. 438, 485 S.E.2d 176:

Affirming an order giving the Department of Health and Human Resources legal custody of the infant children for placement in long-term foster care in a child abuse and neglect proceeding, the Court held (1) evidence that the children=s father inflicted a serious head injury on one of the children by throwing an ashtray at him, failed to obtain medical treatment for the child, and kept gun powder and pornographic videos in the home accessible to the children was sufficient to support a finding that the children were abused and/or neglected; (2) the circuit court did not abuse its discretion in not ordering an improvement period where the children had been previously removed from and then returned to the home on allegations that the father sexually abused his daughter, now emancipated, that the father had threatened another child, also emancipated, if he would not lie about the alleged abuse, and that supervised visitation with the father was stressful to the children; (3) the exclusion of the father from an in camera hearing at which one of the children testified was not error where the father=s attorney was present throughout the interview and had an opportunity to cross-examine the child; and (4) the placement of the children with their sister and then in a foster home for the long term was the least restrictive alternative available.

In re Jonathan G., No. 23465 (December 18, 1996)(Workman, J.): 198 W. Va. 716, 482 S.E.2d 893:

Affirming the circuit court=s order restoring custody of an abused/neglected child to his natural parents, but remanding for further proceedings on whether the child=s foster parents should have visitation, the Court ruled (1) under W. Va. Code, 49-6-2(c) and Bowens v. Maynard, 174 W. Va. 184, S.E.2d 145 (1984), foster parents may have a limited right to participate in abuse and neglect proceedings, provided that their involvement is separate and distinct from the fact-finding portion of the proceedings and is structured to provide pertinent information about the child; (2) the level and type of participation by foster parents in abuse and neglect proceedings is left to the sound discretion of the circuit court, with due consideration of the length of time the foster parents had physical custody and the relationship that has evolved between them and the child; (3) the proceedings were properly dismissed after the State and DHHR withdrew the petition and agreed that there evidence that the conditions leading to the abuse could be corrected; (4) the circuit court=s removal of DHHR as the child=s case manger for its failure to prepare a reunification case plan did not absolve the Department duty to formulate such a plan; (5) the role of the prosecuting attorney vis-a-vis DHHR in abuse and neglect cases is that of attorney-client, and the prosecutor has no independent right to formulate and advocate positions separate from those of DHHR; and (6) a child has a right to continued association with individuals with whom he has formed a close emotional bond, including foster parents, where continued contact is in the best interests of the child.

In re: Katie S. and David S., No. 23584 (November 14, 1996)(Recht, J.): 198 W. Va. 79, 479 S.E.2d 589

Affirming, in part, and reversing, in part, an order terminating the mother=s parental rights for her failure to supervise and provide for the children and referring the children for adoption, the Court ruled that (1) when it appears that one parent has neglected or abused the children and the other has abandoned them, both allegations should be included in the abuse and neglect petition filed under W. Va. Code, 49-6-1(a); (2) the mother failed to demonstrate any reasonable likelihood that her parenting skills would improve so as to warrant additional improvement periods or a less restrictive disposition, such as long-term foster care; and (3) the circuit court erred in not considering the possibility of post-termination visitation between the mother and the children.

West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Doris S. and Rosalee S. and West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Melissa C., Brian AS.@ C., Larry AM.@ C., Joseph E., David E., and any known and unknown putative father or fathers of the infant children, Brian AS.@C. and Larry AM.@C., David E. AND West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Doris S. and Rosalee S. and West Virginia Department of Health and Human Resources ex rel. Brenda Wright, Social Service Worker v. Melissa C., Brian AS.@ C., Larry AM.@ C., Joseph E., David E., and any known and unknown putative father or fathers of the infant children, Brian AS.@C. and Larry AM.@C., Melissa C. and Doris S., Nos. 23156 and 23157 (July 8, 1996)(Workman, J.): 197 W. Va. 489, 475 S.E.2d 865:

Affirming the termination of parental rights where no one present in a home at the time of another infant=s death could explain the possible cause of such death, the Court held that (1) an abused child includes one whose parent fails to cooperate with authorities in identifying the perpetrator of physical abuse of the child or another child in the abused child=s household; (2) a parent=s silence in the face of competent evidence of abuse and/or neglect may create an inference of such parent=s guilt; (3) child abuse and/or neglect includes permitting another adult in the parent=s household to abuse and/or neglect other children in the household, regardless of the familial relationships among the parties; (4) the term Aknowingly@ in W. Va. Code ' 49-1-3(a)(1) includes not only actual knowledge, but where the parent should have known that abuse has occurred; and (5) parental rights can be terminated where (i) there is clear and convincing evidence that a parent Aknowingly@ allowed another adult to inflict serious physical injury on another child living in the household, regardless of the familial relationships among the parties, and (ii) where there is no reasonable likelihood that the conditions of abuse can be substantially corrected because the perpetrator has not been identified and the parent has not cooperated with authorities in their attempts to identify the perpetrator.

State of West Virginia ex rel. Amy M., Shane B., II, Jesse B., Matthew B., and Travis B. v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, Betty Jo B., and Shane B., No. 23212 (April 8, 1996)(Workman, J.): 196 W. Va. 251, 470 S.E.2d 205:

Issuing a writ of prohibition against a post-adjudicatory improvement period, the Court held a writ of prohibition may be used to restrain courts from granting improvement periods of greater duration than permitted under W. Va. Code '' 49-6-2(b) and 49-6-5(c).

In the Interest of: Tiffany Marie S., Taylor Brooks S., children under the age of eighteen years, No. 23198 (March 20, 1996)(Cleckley, J.): 196 W. Va. 223, 470 S.E.2d 177:

In the Matter of Lindsey C., No. 23065 (December 14, 1995)(Albright, J.): 196 W. Va. 395, 473 S.E.2d 110:

In the Matter of Brian D., No. 22558 (July 19, 1995)(Workman, J.): 194 W. Va. 623, 461 S.E.2d 129:

In re: Christina L. and Kenneth J.L., Nos. 22803 and 22804 (July 11, 1995)(Cleckley, J.): 194 W. Va. 446, 460 S.E.2d 692:

Reversing and remanding for further proceedings relating to termination of parental rights where the mother did not dispute termination as to one child who was sexually abused by her boyfriend, but did as to another child who was not sexually abused, the Court held (1) where one child has suffered physical and/or sexual abuse, another child residing in the home when the abuse took place, but who was not the direct victim of physical and/or sexual abuse, was nevertheless at risk of being abused and, accordingly, is an abused child under W. Va. Code ' 49-1-3(a); (2) where parental rights are terminated, a court may nevertheless order continued visitation or contact if (i) it is in the best interest of the child, (ii) there is a close emotional bond, (iii) the child has expressed a mature wish for continued contact, and (iv) it will not be detrimental to the child's well-being; and (3) where parental rights termination is sought on the ground of abandonment, it should be specifically alleged in the petition and every effort should be made to comply with the notice provisions of W. Va. Code ' 49-6-1.

In the Interest of Renae Ebony W., a child under the age of 18 years, No. 22556 (December 21, 1994)(Workman, J.): 192 W. Va. 421, 452 S.E.2d 737:

Reversing a circuit court decision that ratified emergency removal of a child from the custody of her parents, but returned the child to those parents for a three-month improvement period, the Court held that where a child is initially removed from the custody of his or her parents pursuant to W. Va. Code ' 49-6-3, and where such emergency removal is ratified upon a finding of imminent danger, the child shall remain in the temporary legal and physical custody of the State or some responsible relative and out of the allegedly abusive home during the improvement period until the circumstances which constitute an imminent danger cease to exist or until the alleged abuser has been precluded from residing in or visiting the home.

Sharon Alonzo v. Jacqueline F., adult; Rick F., adult; Phillip F., infant; and the West Virginia Department of Health and Human Resources, No. 22181 (May 20, 1994)(Miller, J.): 191 W. Va. 248, 445 S.E.2d 189:

State of West Virginia ex rel. S.C. v. Gretchen Lewis Chafin, Secretary, Department of Health and Human Resources; and James Kirby, Director, Laurel Park Pressley Ridge School, No. 22090 (April 22, 1994)(McHugh, J.): 191 W. Va. 184, 444 S.E.2d 62:

Directing Department of Health and Human Resources compliance with statutory provisions designed to protect children, the Court held (1) whether or not a court orders immediate transfer of custody pursuant to W. Va. Code ' 49-6-3(a), if the court finds there is imminent danger to a child, it may schedule a preliminary hearing; (2) the court may order that a child be placed in the temporary custody of DHHR or some other person for a period of 60 days if the court finds, following the preliminary hearing, that no alternative less drastic will adequately protect the child; (3) if, in addition to finding no less drastic alternative, the court finds, following the preliminary hearing, that the child has been abused and/or neglected, then the court and DHHR, no later than 60 days after the temporary custody placement, must proceed with disposition of the child in accordance with W. Va. Code ' 49-6-5; (4) pursuant to W. Va. Code ' 49-6-5(a), DHHR must, in conjunction with parental rights termination proceedings, file with the court a copy of the child's case plan, including the permanency plan for the child; (5) W. Va. Code ' 49-6-5(a) defines a case plan as a written document which includes, where applicable, the requirements of a family case plan pursuant to W. Va Code ' 49-6D-3, as well as the additional requirements of W. Va. Code ' 49-6-5(a); (6) the court must proceed to disposition, pursuant to W. Va. Code ' 49-6-5(a), including possible temporary placement with the DHHR if the parent(s) are unwilling or unable to adequately care for the child; (7) DHHR shall file with the court a petition for review, a report detailing efforts to find a permanent placement, and a copy of the child's case plan, if the child has not been placed in permanent foster care, in an adoptive home, or with a natural parent, within one year of the receipt of physical custody, pursuant to W. Va. Code ' 49-6-8(a); upon a petition for one-year review, pursuant to W. Va. Code ' 49-6-8(a), the court shall conduct a hearing to determine whether and under what conditions custody shall continue with DHHR, to determine what efforts are necessary to provide the child with a permanent home, and to enter an appropriate order in accordance with the best interests of the child; (8) a court shall retain jurisdiction as long as a child remains in temporary foster care; and (9) DHHR must file a report with the court, pursuant to W. Va. Code ' 49-6-8(d), where any child in its temporary or permanent custody receives more than three placements in one calendar year no later than 30 days after the third placement.

Georgia Boarman v. Raymond T. Boarman, No. 21814 (December 15, 1993)(Workman, C.J.): 190 W. Va. 533, 438 S.E. 2d 876:

In re: Lacey, Shanna and Nicholas P., and Michelle S., No. 21528 (June 24, 1993)(Brotherton, J.): 189 W. Va. 580, 433 S.E.2d 518:

In a case of alleged neglect in litigation for three years, the Court affirmed the termination of parental rights and assistance to the mother in her wish to be surgically sterilized, the Court held (1) neither W. Va. Code ' 49-6-2(b) nor W. Va. Code ' 49-6-5(c) mandate an improvement period of twelve months; (2) a trial court may terminate an improvement period before the end of twelve months if it is determined that the parents are not making satisfactory progress; and (3) the only minimum improvement period is the three-months contained in W. Va. Code ' 49-6-2(b).

In re: Jeffrey R. L., juvenile No. 21535 (June 14, 1993)(McHugh, J.): 190 W. Va. 24, 435 S.E.2d 163:

State of West Virginia v. James R., II, No. 20933 (October 9, 1992)(Brotherton, J.): 188 W. Va. 44, 422 S.E.2d 521:

Applying W. Va. Code ' 49-6-4(a), the Court held that no evidence acquired from a parent or custodian as the result of examinations performed in the course of abuse and neglect proceedings may be used in any subsequent criminal proceedings.

In the Interest of Carlita B., No. 19899 (July 29, 1991)(Workman, J.): 185 W. Va. 613, 408 S.E.2d 365:

James M., Timothy M., Ike S. M. and Brandon C. M., infants under the age of eighteen years v. Honorable Elliott E. Maynard, Judge of the Circuit Court of Mingo County, and Steve M., No. 19948 (July 29, 1991)(Workman, J.): 185 W. Va. 648, 408 S.E.2d 400:

In the Matter of Scottie D., Rebecca W., Patsy D., and Crystal D., Children Under the Age of Eighteen Years, No. 19676 (June 14, 1991)(McHugh, J.): 185 W. Va. 191, 406 S.E.2d 214:

Reversing a trial court's refusal to terminate the parental rights of a father whose children were abused by their mother, the Court held that where one parent knowingly refrains from intervening to prevent the abuse of a child by the other parent or where one parent supports the other parent's version of how a child's injuries occurred despite clear and convincing medical evidence to the contrary, termination of the nonparticipating parent's rights is proper under W. Va. Code ' 49-6-1 to 49-6-10. On a procedural issue, the Court further held that a guardian ad litem, appointed pursuant to W. Va. Code ' 49-6-2(a) to protect the interests of a child in a parental rights termination case, has a duty to appeal any decision which, in the guardian's reasonable judgment, is contrary to the best interests of the child.

In the Matter of: Jonathan P., No. 19229 (November 30, 1989)(Miller, J.): 182 W. Va. 302, 387 S.E.2d 537:

Where custody of six-month old baby was taken from mother after she continued to feed him regular milk, causing diarrhea, and slept in car in sub-freezing weather, despite offers of assistance from the Department of Human Services, the Court held:(1) W. Va. Code ' 49-6-3 permits the immediate, temporary taking of custody of a child by the DOH where there exists "an imminent danger to the physical well-being of the child" and there are "no reasonably available alternatives to the removal of the child"; (2) request for an improvement period, under W. Va. Code ' 49-6-2(b), must be made "prior to final hearing"; and, (3) termination of parental rights may be employed without the use of intervening less restrictive alternatives when there is no reasonable likelihood that conditions of neglect or abuse can be substantially corrected. Where, in addition to acts of neglect, the mother spent time between initial custody order and final custody hearing hitchhiking from coast-to-coast doing "psychic" research, with particular emphasis on ESP and clairvoyance, and where mother was diagnosed as suffering from schizophrenia, the Court held there was sufficient evidence to support termination of parental rights.

Baby Boy R., an Infant, by His Next Friend, Patricia R. and Patricia R. v. Lori Velas, Protective Service Worker, W. Va. Department of Human Services, et al., No. 19015 (November 3, 1989)(Brotherton, C.J.): 182 W. Va. 182, 386 S.E.2d 839:

William E. Galloway v. Rose Ann Cinello, No. 21226 (October 23, 1992)(Miller, J.): 188 W. Va. 266, 423 S.E.2d 875:

Where attorney improperly acted as both notary and trustee on a deed of trust, the Court held (1) a notary with a disqualifying interest may not legally perform, under W. Va. Code ' 29C-3-102, any notarial act in connection with the transaction; (2) to determine whether a notary's disqualifying interest should act to void the instrument acknowledged, a court should consider whether an improper benefit was obtained by the notary or any party to the instrument, as well as whether any harm flowed from the transaction, overruling Tavenner v. Barrett, 21 W. Va. 656 (1883); (3) once it is shown that actual prejudice, unfair dealing, or undue advantage has resulted from a notary's disqualifying interest in an instrument, the burden shifts to the notary to demonstrate than no improper benefit was obtained and no harm occurred as the result of the acknowledgment; and (4) a notary is liable to persons involved, under W. Va. Code ' 29C-6-101, for all damages proximately caused by the notary's "official misconduct," which means the unauthorized, unlawful, abusive, negligent, reckless, or injurious exercise of the power or authority of a notary.

Roy Lee McClure and Mary Frances McClure, his wife v. Lu Ann Dotson and Lu Ann Dotson McClure, Administratrix of the Estate of James Edward McClure, and Kansas City Life Company, Inc., a corporation, No. 19777 (March 15, 1991)(Miller, C.J.): 184 W. Va. 649, 403 S.E.2d 197:

Where decedent's parents sought to disqualify daughter-in-law, whom they suspected was responsible for their son's death, from administering their son's estate, the Court held that the county commission has jurisdiction to determine the propriety of appointments of personal representatives, guardians, committees, and curators under W. Va. Code ' 44-1-4, and its action is conclusively presumed to have been proper in all collateral proceedings. On the other hand, the Court held that a personal representative may be removed by a circuit court for cause where it is shown that such representative acted in violation of his or her fiduciary duties.

State of West Virginia ex rel. Joe E. Miller, Commissioner, Division of Motor Vehicles of the State of West Virginia v. Honorable Neil A. Reed, Judge of the Circuit Court of Preston County, and Neil L. Shedd, II AND Susan J. Burrough v. Jane L. Cline, Commissioner, West Virginia Department of Motor Vehicles, Nos. 25191 and 25146 (December 8, 1998)(Workman, J.)(McCuskey, J., participating) (McGraw, J., not participating): ___ W. Va. ___, 510 S.E.2d 507:

In consolidated matters addressing the issue of whether the West Virginia Division of Motor Vehicles (DMV) provided sufficient notice of revocation of a drivers= license, the Court held that pursuant to the provisions of W. Va. Code ' 17B-2-13 (1996), an individual who holds a driver=s license issued by the DMV is required to notify the DMV in writing on the prescribed form concerning a change of address within 20 days after a change of residence. The DMV satisfies the requirements of due process by mailing a copy of a driver=s license revocation or suspension order to an individual whose license to drive is revoked or suspended, addressed to such individual at the last recorded address shown by the DMV=s records. The Court also held that when an individual brings a mandamus action seeking to compel the DMV to perform a statutory duty which relates to DMV=s maintenance of records and such action is not an administrative appeal pursuant to the West Virginia Administrative Procedures Act, then the action shall be brought in the Circuit Court of Kanawha County pursuant to W. Va. Code ' 14-2-2(a)(1) and 53-1-2.

Thomas S. Clark, M.D. v. West Virginia Board of Medicine AND Thomas S. Clark, M.D. v. West Virginia Board of Medicine, Nos. 23789 and 23790 (July 17, 1998)(Maynard, J.) (Starcher, J., deemed himself disqualified)(Steptoe, Judge, sitting by special assignment): 203 W. Va. 394, 508 S.E.2d 111:

Affirming in part, reversing in part and remanding with directions the decision of the trial court with respect to proceedings appealed from the decision of the Board of Medicine, the Court held, inter alia, as follows: when the circuit court finds that the rights of a petitioner have been prejudiced because of one of the six reasons set for in W. Va. Code ' 29A-5-4(g) and the court exercises its discretion to reverse, modify or vacate the ruling of the West Virginia Board of Medicine, then any disciplinary sanction the Board of Medicine is authorized to levy pursuant to legislative rule or statute is also available to the circuit court.

State ex rel. Deleno H. Webb, M.D. v. West Virginia Board of Medicine AND State ex rel. Deleno H. Webb, M.D. v. West Virginia Board of Medicine, Nos. 24640 and 24641 (July 16, 1998)(Starcher, J.)(Workman, J., dissenting) (Maynard, J., deemed himself disqualified)(Johnson, Judge, sitting by special assignment): 203 W. Va. 234, 506 S.E.2d 830:

Affirming in part, reversing in part and remanding the trial court=s decision with respect to two disciplinary complaints filed against Dr. Webb, the Court held, inter alia, as follows: the doctrine of laches may be applicable in proceedings by and before the W. Va. Board of Medicine. However, in applying the doctrine of laches in such proceedings, the interest of the state, the public and the medical profession must be given substantial consideration, and the doctrine should be applied narrowly and conservatively and in such a fashion as to not unfairly impair the Board=s duty and responsibility to supervise and regulate the medical profession for the protection of the profession and the public. The Court then held that the Board of Medicine could go forward with one disciplinary proceeding against Dr. Web, charging him with having a sexual relationship with a patient; however, in the other proceeding, charging the same doctor with the same conduct, the Court determined that the complainant=s delay in making a complaint bars further proceedings.

State of West Virginia ex rel. Judy Monk v. Honorable David W. Knight, Judge of the Circuit Court of Mercer County, The Mercer County Board of Education and Gregory Dalton, No. 24366 (November 24, 1997)(Maynard, J.)(Workman, C.J. concurring in part and dissenting in part): 201 W. Va. 535, 499 S.E.2d 35:

Denying a petition for writ of prohibition by teacher (Monk) seeking to prevent enforcement of the Board=s decision to hire another teacher (Dalton), the Court held (inter alia) as follows: (1) When two teachers with equal qualifications apply for a vacant teaching position and one applicant files a grievance after the position is filled, the other applicant has no duty or obligation to intervene in the grievance proceeding until a decision has been rendered that substantially and adversely affects him or her; and (2) Absent a specific statutory authorization, county boards of education cannot fill vacant teaching positions by random selection or lottery when two or more equally qualified employees apply for the vacant position. West Virginia Code ' 18-4-7a provides the criteria the board of education must take into consideration when determining which candidate is most qualified. The candidate who is most qualified must be chosen to fill the vacancy.

David P. Hanlon v. Logan County Board of Education and Tim Murphy, No. 23957 (November 20, 1997)(Davis, J.):201 W. Va. 305, 496 S.E.2d 447:

Affirming the trial court=s affirmance of a decision by the West Virginia Educational Employees Grievance Board, the Court reiterated that a final order of the hearing examiner made pursuant to W. VA. Code ' 18-29-1, et seq. and based upon findings of fact should not be reversed unless clearly wrong. The Court also found that W. Va. Code ' 18A-4-16 does not preclude a county board of education from entering into an extracurricular coaching assignment agreement with an individual employed by another county=s board of education, provided both county boards of education agree to the proposed arrangement. The Court also addressed the default provisions of W. Va. Code ' 18-29-3(a).

State of West Virginia ex rel. Ken Hechler, West Virginia Secretary of State v. Christian Action Network, a tax-exempt Virginia corporation, No. 23573 (July 16, 1997)(McHugh, J.): 201 W. Va. 71, 491 S.E.2d 618:

Affirming, in part, and reversing, in part, an order permanently enjoining the respondent from soliciting funds in West Virginia to support its lobbying efforts in Congress, the Court held that the circuit court did not err in ruling (1) that the respondent was a Acharitable organization@ subject to the requirements of the Solicitation of Charitable Funds Act, W. Va. Code, 29-19-1, et seq., and (2) that the requirement that the respondent include on all of its printed solicitations a notice that state residents may obtain a summary of the registration and financial documents from the Secretary of State does not violate the First Amendment right to speech, but did err in ruling that the respondent is required to file with the Secretary of State copies of all solicitation materials mailed to the public.

Affiliated Construction Trades Foundation and Bruce Tarpley, President of Affiliated Construction Trades Foundation v. Regional Jail and Correctional Facility Authority, and Jack Roop, Executive Director of the Regional Jail and Correctional Facility Authority, No. 23750 (July 11, 1997)(Maynard, J.): 200 W. Va. 621, 490 S.E.2d 708:

Taunia Hale v. Mingo County Board of Education, No. 23748 (March 21, 1997)(Starcher, J.): 199 W. Va. 387, 484 S.E.2d 640:

Reversing the dismissal of the claims of appellant, a school board secretary, that she was laid off during a reduction in force in violation of her seniority rights and remanding for further proceedings, the Court held that the circuit court erred in ruling (1) that appellant had to file a separate grievance to assert her claims and could not intervene in a grievance filed by another school board secretary on the same grounds and (2) that appellant=s intervention was not timely where the record was silent as to the date on which appellant filed for intervention.

Delbert Martin v. West Virginia Division of Labor Contractor Licensing Board and Larry Workman v. West Virginia Division of Labor Contractor Licensing Board, No. 23380 (February 21, 1997)(Davis, J.): 199 W. Va. 613, 486 S.E.2d 782:

State ex rel. Katherine Anne Hoover, M.D., v. Honorable Robert K. Smith, Special Judge of the Circuit Court of Kanawha County, the West Virginia Board of Medicine, and Anne Werum Lambright, No. 23613 (December 13, 1996)(McHugh, C.J.): 198 W. Va. 507, 482 S.E.2d 124:

Moulding a writ of prohibition requested by petitioner, the respondent in a medical disciplinary proceeding below, to challenge the refusal of the hearing examiner to issue subpoenas for discovery depositions, the Court held while there is no constitutional or statutory right to discovery depositions in administrative proceedings, where it would be fundamentally unfair to refuse to allow a physician in medical disciplinary proceedings to conduct discovery prior to the contested hearing, such as where the Board of Medicine impedes the physician=s ability to adequately address the charges being investigated, due process may require the issuance of subpoenas for pre-hearing discovery purposes, and prohibited the hearing examiner from proceeding with the administrative hearing without determining whether such circumstances exist in this case.

The Daily Gazette Company, Inc., a West Virginia Corporation v. The West Virginia Development Office and its Director, Thomas C. Burns, No. 23560 (December 13, 1996)(McHugh, C.J.): 198 W. Va. 563, 482 S.E.2d 180:

Reversing a ruling refusing plaintiff newspaper=s request for documents relating to proposed construction of a pulp mill under the Freedom of Information Act, W. Va. Code, 29B-1-1 et seq., as exempt from disclosure as internal memoranda or letters received or prepared by a public body under W. Va. Code, 29B-1-4(8), the Court ruled that (1) when an agency claims an exemption under section 4(8), it must file a Vaughn index, providing a relatively detailed justification as to why each document is exempt, specifically identifying the reasons that the statutory exemption is relevant and correlating the claimed exemption with the particular part of the withheld document to which the claimed exemption applies and (2) the statute specifically exempts only those written internal government communications consisting of advice, opinions and recommendations which reflect a public body=s deliberative, decision-making process, written advice, opinions and recommendations from one public body to another, and written advice, opinions and recommendations to a public body from outside consultants or experts obtained during the public body=s deliberative, decision-making process; it does not exempt from disclosure written communications between a public body and private persons or entities which do not consist of advice, opinions or recommendations to the public body from outside consultants or experts obtained during the public body=s deliberative, decision-making process. The Court remanded for a determination of whether the documents are exempt from disclosure under section 4(8).

State ex rel. Judson White v. Larry F. Parsons, Administrator, South Central Regional Jail, No. 23542 (December 9, 1996) (Albright, J.): 199 W. Va. 1, 483 S.E.2d 1:

State ex rel. Katherine Anne Hoover, M.D. v. Honorable Irene Berger, Judge, et al., No. 23737 (November 15, 1996)(Cleckley, J.): 199 W. Va. 12, 483 S.E.2d 12:

Granting a writ of prohibition to prevent enforcement of a subpoena duces tecum issued by the Board of Medicine and requiring production of a transcript by a court reporter hired by petitioner to record a meeting of the Board at which petitioner appeared, the Court ruled that the Board had no authority to issue the subpoena where its purpose was not to further the Board=s investigation or any other proper statutory purpose, but merely to guarantee the accuracy of the Board=s minutes of the meeting.

State of West Virginia ex rel. Michael S. White v. Michael Todt, Administrator, William R. Sharpe, Jr., Hospital; Ted Johnson, Interstate Compact Administrator, West Virginia Department of Health and Human Resources, No. 23271 (July 8, 1996) (McHugh, C.J.): 197 W. Va. 334, 475 S.E.2d 426:

West Virginia Health Care Cost Review Authority v. Boone Memorial Hospital, No. 23035 (May 17, 1996)(Cleckley, J.): 196 W. Va. 326, 472 S.E.2d 411:

Affirming a circuit court ruling upholding an agency=s determination regarding the necessity of administrative approval of a hospital=s purchase of certain equipment, the Court held (1) once an administrative regulation is legislatively approved, it has the force and effect of statute, entitling it to controlling weight unless the promulgating agency exceeded its constitutional or statutory authority or was arbitrary or capricious; (2) if the language of a regulation is clear and within the authority of the enacting body, courts must apply and not construe the regulation; and (3) even where there is a conflict between a regulation and a statute, such conflict will be judicially resolved using ordinary canons of interpretation.

Michael McComas, Winifred Andrews, and Mary Blackwell v. Board of Education of Fayette County; Philip J. Tissue, President; W. Jack Flint, Ralph L. Parks, Daniel E. Wright, and Jeanne M. Young, No. 23291 (May 17, 1996)(Cleckley, J.): 197 W. Va. 188, 475 S.E.2d 280:

Affirming a judgment overturning a school board=s decision to consolidate several schools, the Court held (1) proof of intent to violate the Open Governmental Proceedings Act, W. Va. Code ' 6-9A-1, et seq., is not required; (2) in determining whether allegedly informal, private conversations are outside the provisions of the Open Governmental Proceedings Act, courts should focus on whether exclusion of the public from such conversations undermined the fundamental purposes of the Act; and (3) a planned meeting among a quorum of a school board to gather, review, or discuss information relevant to an issue before the board must be public, and if it is not, its conduct violates the Open Governmental Proceedings Act, W. Va. Code ' 6-9A-3.

Appalachian Power Company, et al. v. State Tax Department of West Virginia and Charles O. Lorensen, State Tax Commissioner of West Virginia, No. 22795 (December 8, 1995)(Cleckley, J.): 195 W. Va. 573, 466 S.E.2d 424:

Affirming the tax department=s interpretation of a statute regarding the deductibility of company use and line loss, the Court held (1) appellate review of the interpretation of a statute or administrative rule or regulation is to be performed de novo; (2) judicial review of an interpretative rule of an administrative agency is nondeferential; (3) judicial review of a legislative rule of an administrative agency is two-pronged: (i) if the intention of the legislative branch is clear from a review of the applicable statutes, no deference is granted to the agency=s position, which can be upheld only if it conforms to the legislative intent or (ii) if the intention of the legislative branch is not clear from a review of the applicable statutes, substantial deference is granted to the agency=s position, which can be invalidated only if the agency has exceeded its constitutional or statutory authority or has acted in an arbitrary and capricious manner.

Shakuntala Modi, M.D. v. West Virginia Board of Medicine, No.22792 (November 17, 1995)(Albright, J.): 195 W. Va. 230, 465 S.E.2d 230:

Affirming an order that invalidated the imposition of professional discipline by the board of medicine where such order deviated from the findings, conclusions, and recommendations of the hearing examiner used by the board, the Court held that where an administrative agency has conducted a contested hearing through a hearing examiner or an administrative law judge, it must give detailed reasons in its decision for departure from the findings, conclusions, and recommendations of the hearing examiner or administrative law judge, particularly where the agency is basing its decision on economic, scientific, or other technical data within the agency=s expertise or where the agency has not heard or received the evidence from which it is rendering different findings or conclusions.

State of West Virginia ex rel. Laura Meadows and Danny Martin v. Ken Hechler, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, No. 22875 (July 19, 1995)(Workman, J.): 195 W. Va. 11, 462 S.E.2d 586:

Invalidating W. Va. Code ' 29A-3-12(b), which permitted legislative veto of proposed administrative regulations where, despite federal statute and federal court order, the Legislature failed to approve or reject proposed nursing home regulations, the Court held such statute to violate W. Va. Const. art. V, ' 1, by impermissibly encroaching upon the executive branch's obligation to enforce the law.

Wetzel County Solid Waste Authority, et al. v. West Virginia Division of Natural Resources, et al., and West Virginia Division of Environmental Protection, and its director, David Callaghan; and Pasquale N. Mascaro, President and Owner of Lackawanna Transport Company, No. 22778 (July 14, 1995)(McHugh, C.J.): 195 W. Va. 1, 462 S.E.2d 349:

Rejecting numerous challenges to imposition of a solid waste assessment fee on landfill operators, the Court held (1) the solid waste assessment fee authorized by W. Va. Code ' 7-5-22 is a regulatory fee rather than a tax since revenue from the fee is used for the sole purpose of defraying the costs of the administration of duties imposed upon the county or regional solid waste authorities and (2) because the imposition of a solid waste assessment fee is rationally related to the legitimate statute purpose of defraying the costs of regional or county solid waste authorities and their solid waste programs in a non-arbitrary or discriminatory manner, the equal protection and due process rights found in W. Va. Const. art. III, ' 1 are not violated.

G. Frank Keen, et al. v. William Maxey, in his official capacity as Director, West Virginia Division of Forestry, and Coastal Lumber, Inc., No. 22591 (March 24, 1995)(Neely, C.J.): 193 W. Va. 423, 456 S.E.2d 550:

Affirming an order permitting the sale of timber in Kumbrabow State Forest by the division of forestry, the Court held that W. Va. Code '' 20-1-7(13) and 19-1A-1, et seq., clearly and unambiguously grant authority to the division of forestry to contract for the sale of timber, with the written approval of the governor, so long as such sale comports with the overall sound management of the forest.

Guy R. Hill v. Jane L. Cline, Commissioner, and the West Virginia Department of Motor Vehicles, No. 22080 (March 24, 1995)(Neely, C.J.): 193 W. Va. 436, 457 S.E.2d 113:

In re: Petition of Chester Snuffer for an Appeal of a Final Order of the Division of Natural Resources that Revokes Hunting and Fishing Privileges for Five Years, No. 22479 (March 24, 1995)(Fox, J.): 193 W. Va. 412, 456 S.E.2d 493:

Reinstating an administrative order revoking a hunting and fishing license, the Court held that, pursuant W. Va. Code ' 20-2-38, the director of the division of natural resources may, within his or her discretion, refuse to issue or revoke a hunting or fishing license for "cause," which includes not only the violation of specific hunting and fishing regulations, but other reasons.

Barbara L. Vest v. Board of Education of the County of Nicholas, No. 22547 (February 17, 1995)(Cleckley, J.): 193 W. Va. 222, 455 S.E.2d 781:

In a certified question proceeding involving the authority of the education and state employees grievance board to hear discrimination claims and the preclusive effect of any board decision on such claims, the Court held that (1) although the grievance board does not have authority to determine liability under the Human Rights Act, it has authority to grant relief to employees for "discrimination," "favoritism," and "harassment," as those terms are defined in W. Va. Code ' 18-29-2, in a manner consistent with the provisions of the Human Rights Act; (2) except where provided by statute, administrative adjudication does not have preclusive effect unless the decision was rendered pursuant to specific statutory authority, the agency's procedures were substantially similar to court procedures, and the issues litigated were identical; and (3) a civil action filed pursuant to the Human Rights Act is not precluded by a prior decision of the education and state employees grievance board arising from the same facts and circumstances.

Mark A. Miller v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 21984 (February 17, 1995)(Cleckley, J.): 193 W. Va. 210, 455 S.E.2d 769:

In a case involving calculation of the period of revocation for subsequent DUI-suspensions, the Court held that under W. Va. Code ' 17C-5A-3(b)(2)(B), which provides that "at least one half" of a revocation period must elapse "from the date of the initial revocation during which time the revocation was actually in effect" before a license may be reissued, if a revocation is suspended and the driver retains the right to drive, the period of time the driver is permitted to drive shall not be credited toward the total amount of time that must elapse prior to reinstatement.

Leonard Sniffin v. Jane O. Cline, Commissioner, Department of Motor Vehicles, No. 22573 (February 17, 1995)(Cleckley, J.): 193 W. Va. 370, 456 S.E.2d 451:

Affirming a second-offense DUI revocation on the basis of a conviction in another jurisdiction, the Court held that a prior criminal adjudication in another state establishing driving under the influence satisfies the same function as an administrative hearing under W. Va. Code ' 17C-5A-2.

Alfred O. McDonald, Jr. v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 21292 (February 17, 1995)(Workman, J.): 193 W. Va. 189, 455 S.E.2d 558:

Rejecting constitutional arguments related to the effect of a DUI-suspension on a driver's employment, the Court held that the administrative procedures contained in W. Va. Code '' 17C-5A-1 to -4, which permit the revocation of a driver's license for driving under the influence of alcohol, are not violative of the driver's due process and equal protection rights because a valid driver's license is necessary for the driver's employment.

Randy D. Abshire v. Jane L. Cline, Commissioner, Department of Motor Vehicles, No. 22229 (February 17, 1995)(Cleckley, J.): 193 W. Va. 180, 455 S.E.2d 549:

Raymond J. Keegan and Argent Research and Recovery, Ltd. v. Larrie Bailey, as he is the Treasurer of West Virginia, No. 21921 (April 22, 1994)(McHugh, J.): 191 W. Va. 145, 443 S.E.2d 826:

Where private company sought access to records of stale checks issued by State of West Virginia, the Court held that unless records of state-dated warrants are presumed to be abandoned property as defined in W. Va. Code ' 36-8-8b(a), such records of state-dated warrants are subject to disclosure pursuant to the Freedom of Information Act, W. Va. Code ' 29B-1-1, et seq.

Francis O. Day Co., Inc. v. Director, Division of Environmental Protection of the West Virginia Department of Commerce, Labor and Environmental Resources, et al., Nos. 21916 and 21917 (March 28, 1994)(Brotherton, C.J.): 191 W. Va. 134, 443 S.E.2d 602:

State ex rel. Chesapeake and Potomac Telephone Company of West Virginia v. Honorable John C. Ashworth, Judge of the Circuit Court of Raleigh County, and Beckley Hospital, Inc., No. 21930 (December 16, 1993)(Neely, J.): 190 W. Va. 547, 438 S.E.2d 890:

Granting a writ of prohibition against a circuit court suit for a refund of telephone charges where a complaint was initially filed with the Public Service Commission, the Court held that although one must ordinarily exhaust administrative remedies before the commencement of proceedings in circuit court, W. Va. Code ' 24-4-7 confers concurrent jurisdiction on the Public Service Commission and circuit courts where a customer seeks a refund based upon the rules of the Public Service Commission, but once a complaint is filed with the Public Service Commission, an action in circuit court is foreclosed until the administrative remedies are exhausted.

Jackson L. Smith v. L.W. Bechtold, Commissioner of the West Virginia Department of Motor Vehicles, No. 21543 (November 23, 1993)(Brotherton, J.): 190 W. Va. 315, 438 S.E.2d 347:

Cecil C. Varney v. Ken Hechler, Secretary of State of West Virginia, No. 21493 (July 16, 1993)(Workman, C.J.): 189 W. Va. 655, 434 S.E.2d 15:

Rejecting complaint that one of an agency's lawyers served as hearing examiner and that no responsive pleading was filed by the agency upon the respondent's appeal of the agency's decision to circuit court, the Court held (1) W. Va. Code ' 29A-5-1(d) permits an agency to designate any of its employees as a hearing examiner in contested cases and (2) W. Va. Code ' 29A-5-4 only requires the filing of a responsive pleading in an administrative appeal when the circuit court orders such pleading to be filed.

State of West Virginia ex rel. West Virginia Board of Education, et al. v. Honorable Roger L. Perry, Judge of the Circuit Court of Logan County, et al., No. 21697 (July 16, 1993)(Miller, J.): 189 W. Va. 662, 434 S.E.2d 22:

Where citizens sought to challenge school consolidation decision of state board through a writ of certiorari proceeding, the Court held (1) W. Va. Code ' 29A-1-2(b) defines contested case as a proceeding that involves rights, duties, interests, or privileges of specific parties which are required by law to be decided after an administrative hearing; (2) W. Va. Code ' 29A-1-2(b) does not create a substantive right to a hearing for parties; and (3) neither statutes relating to school closing or consolidation nor regulations of the state board of education mandate an administrative hearing prior to its decision to accept, reject, or modify a local board's plan to close or consolidate.

West Virginia Radiologic Technology Board of Examiners v. H. Darrel Darby, D.P.M., No. 21214 (February 16, 1993)(Miller, J.): 189 W. Va. 52, 427 S.E.2d 486:

Rejecting a podiatrist's claim that licensing board lacked authority to seek injunction preventing him from using unlicensed radiologic technologists to take x-rays, the Court held that W. Va. ' 30-23-3(b) prohibits any firm, association, or corporation from providing radiologic technology services by anyone other than a practitioner or licensee under W. Va. Code ' 30-23-3(a).

State of West Virginia ex rel. Mario J. Palumbo, Attorney General v. Graley's Body Shop, Inc., an Ohio corporation, et al., No. 21301 (December 14, 1992)(McHugh, C.J.): 188 W. Va. 501, 425 S.E.2d 177:

In an important decision involving the rights of those subject to administrative investigations, the Court held that whether a penalty is civil or criminal depends on (1) legislative intent and (2) whether the sanctions are so punitive as to constitute a criminal penalty. With respect to the second part of this inquiry, the Court held that the following factors should be considered: (1) whether the sanction involves an affirmative disability or restraint; (2) whether the sanction has historically been regarded as a punishment; (3) whether the sanction is imposed only where there is a finding of scienter; (4) whether the sanction will promote the traditional purposes of punishment, retribution and deterrence; (5) whether the regulated behavior already constitutes a crime; (6) whether reasons exist for its imposition independent of retribution and deterrence; and (7) whether it appears to be excessive in light of the justifications for its imposition. With respect to the specific sanctions involved, those available under the West Virginia Antitrust Act, W. Va. Code ' 47-18-1, et seq., the Court held them to be civil in nature and, therefore, suspected violators were not required to be notified that they are targets of an investigation or that they may have counsel present at oral deposition.

Francis O. Day Co., Inc. v. West Virginia Reclamation Board of Review, No. 21261 (December 11, 1992)(Neely, J.): 188 W. Va. 418, 424 S.E.2d 763:

Ronald G. Parks v. Board of Review of the West Virginia Department of Employment Security; James G. Dillon, as Chairman thereof; G. Charles Hughes and Jane Doe, as Members thereof; and Charles T. Cunningham, Administrative Law Judge, No. 21418 (December 11, 1992)(Miller, J.): 188 W. Va. 447, 425 S.E.2d 123:

Rejecting the Department of Employment Security's attempt to force claimants to submit to telephonic hearings of their claims, the Court held that where a party requests a hearing before an administrative law judge under W. Va. Code ' 21A-7-8, such party may not be required, over objection, to submit to a telephonic hearing.

Joy Technologies, Inc. v. Liberty Mutual Insurance Company, et al., No. 20153 (July 21, 1992)(Brotherton, J.)(as modified): 187 W. Va. 742, 421 S.E.2d 493:

West Virginia Board of Medicine v. Honorable George Spillers, Judge of the Circuit Court of Brooke County and Weirton Medical Center, Inc., No. 21006 (May 14, 1992)(Neely, J.): 187 W. Va. 257, 418 S.E.2d 571:

Retha A. Osborne v. West Virginia Human Rights Commission and Advance/Gregg Security, No. 19838 (February 7, 1991)(Neely, J.): 184 W. Va. 584, 402 S.E.2d 253:

Vince P. Shumate v. West Virginia Department of Motor Vehicles, No. 19230 (April 19, 1990)(McHugh, J.): 182 W. Va. 810, 392 S.E.2d 701:

Terry Halstead and Theodore Morris v. George Dials, Commissioner, West Virginia Department of Energy, and Appalachian Mining, Inc., No. 19502 (March 23, 1990)(Miller, J.): 182 W. Va. 695, 391 S.E.2d 385:

Walter C. Blower v. West Virginia Educational Broadcasting Authority, No. 19154 (January 26, 1990)(Miller, J.): 182 W. Va. 528, 389 S.E.2d 739:

In a certified question proceeding finding that the Educational Broadcasting Authority is a state agency entitled to the special venue provisions of W. Va. Code ' 14-2-2, the Court set forth five factors for determining whether a particular entity constitutes a state agency: (1) whether the entity's powers are substantially created by the legislature; (2) whether the composition of the entity's governing board is prescribed by the legislature; (3) whether the entity is empowered to operate on a statewide basis; (4) the extent to which the entity is financially dependent upon public funds; and, (5) whether the entity is required to deposit its funds in the state treasury.

Stowers and Sons Trucking Company, Inc. v. Public Service Commission and Eugene Roberts & Son, Inc., No. 19014 (December 20, 1989)(Miller, J.): 182 W. Va. 374, 387 S.E.2d 841:

In a competitor's appeal of an award of an amended certificate to permit a common carrier to transport tanks and pipe used in southern West Virginia drilling operations, the Court reversed, holding that the Public Service Commission violated its mandatory duty under W. Va. Code ' 24A-2-5 to consider evidence of whether "the service furnished by existing transportation facilities is reasonably efficient and adequate," which would compel denial of a competing certificate. In so holding, the Court expressly rejected, as in direct conflict with clear statutory language to the contrary, the PSC's adoption of the "regulated competition" doctrine, which provides that even whether there is no showing that existing service is inadequate, certification is appropriate if it serves the public interest.

The Consumer Advocate Division of the Public Service Commission of West Virginia, on Behalf of the Residential and Small Commercial Customers of Hope Gas, Inc. v. The Public Service Commission of West Virginia and Hope Gas, Inc., No. 19080 (November 3, 1989)(McHugh, J.): 182 W. Va. 152, 386 S.E.2d 650:

State of West Virginia ex rel. Howard Tuck v. Thomas W. Cole, Chancellor of the West Virginia Board of Regents; The West Virginia Board of Regents; James W. Rowley, President of West Virginia College of Graduate Studies; and William Crockett, No. 18200 (October 19, 1989)(Neely, J.): 182 W. Va. 178, 386 S.E.2d 835:

Robert L. Lowther v. Fred Riggleman and Granville J. Zopp v. Donald H. Lowther, No. 20997 (February 25, 1993)(Miller, J.): 189 W. Va. 68, 428 S.E.2d 49:

Where brother of partner sought priority in distribution of partnership assets, the Court held (1) the liability of a partnership to creditors other than the partners must be given priority, pursuant to W. Va. Code ' 47-8A-40, in any dissolution and (2) a partner cannot assert a lien on partnership assets that creates a preferential claim over general creditors.

John Woodruff Kessel, et al. v. David Keene Leavitt, et al., No. 23557 (July 22, 1998)(Davis, C. J.)(Workman, J., concurring and dissenting)(McCuskey, J. not participating)(McHugh, J. [retired], sitting by temporary assignment): ___ W. Va. ___, 511 S.E.2d 720:

Affirming the circuit court=s ruling in a case of first impression, alleging tortious interference with parental or custodial relationship, and dismissing an appellant for failure to post his appeal bond, the Court held, inter alia, as follows: [1] when a party appeals a lower court=s ruling to the Supreme Court of Appeals of West Virginia and he/she is required to post an appeal bond, his/her failure to post such bond will result in the dismissal of that party=s appeal and the consequent affirmance, as to that party, of the lower court=s ruling; [2] an appellant/defendant may not assign as error a circuit court=s affirmative assertion of personal jurisdiction over a coappellant/codefendant when the coappellant/codefendant either has not challenged the assertion of personal jurisdiction over him/her or has otherwise, by his/her acts and/or omissions, waived his/her right to challenge the personal jurisdiction ruling.

State of West Virginia ex rel. Allstate Insurance Company, a foreign corporation v. The Honorable Martin J. Gaughan, Judge of the Circuit Court of Ohio County, West Virginia, and Carol J. Thoburn, No. 24510 (July 14, 1998)(Davis, C. J.): 203 W. Va. 358, 508 S.E.2d 75:

Granting a petition for writ of prohibition as moulded, the Court held, inter alia, as follows: [1] a party seeking to petition this Court for an extraordinary writ based upon a non-appealable interlocutory decision of a trial court, must request the trial court set out in an order findings of fact and conclusions of law that support and form the basis of its decision. In making the request to the trial court, counsel must inform the trial court specifically that the request is being made because counsel intends to seek an extraordinary writ to challenge the court=s ruling. When such a request is made, trial courts are obligated to enter an order containing findings of fact and conclusions of law. Absent a request by the complaining party, a trial court is under no duty to set out findings of fact and conclusions of law in non-appealable interlocutory orders.

State of West Virginia ex rel. Ron Kern and Sandra Kern v. Katherine Santucci, Magistrate for Jefferson County and Brian S. Riedmuller, No.24131 (July 11, 1997)(Maynard, J.): 201 W. Va. 144, 494 S.E.2d 911:

Granting a moulded writ of prohibition to prevent the dismissal of petitioners= appeal from magistrate court ruling for failure to post bond, the Court held that the magistrate did have authority to require the posting of an $800 appeal bond nunc pro tunc upon discovering that, through oversight or omission, no bond had been required as mandated by Rule 18(b) of the Rules of Civil Procedure for Magistrate Courts, but that the magistrate was required to give timely notice of the correction of the appeal bond to any party adversely affected thereby. The Court afforded the petitioners a twenty-day period in which to post the bond or to seek a waiver thereof under Rule 22 of the Rules of Civil Procedure for Magistrate Courts and, upon the posting of such bond or the filing of the affidavit of indigency, ordered the respondent to refrain from impeding the petitioners= appeal to circuit court.

Chandra K. Parkulo v. West Virginia Board of Probation and Parole and the West Virginia Division of Corrections, No. 23366 (November 15, 1996)(Albright, J.): 199 W. Va. 161, 483 S.E.2d 507:

Reviewing summary judgment and dismissal of an action against the Division of Corrections and the Parole Board for injuries plaintiff received when attacked by a parolee on grounds of sovereign immunity, the Court held (1) the Parole Board, being a quasi-judicial body, is entitled to absolute immunity from tort liability for acts or omissions which are covered by liability insurance purchased by the State pursuant to W. Va. Code, 29-12-5, and which are performed in the exercise of its judicial function, unless such immunity is expressly waived by the applicable insurance contract; and (2) the Apublic duty doctrine@ and the Aspecial relationship@ exception thereto apply to the Parole Board and the Division of Corrections unless coverage for the acts or omissions complained of is expressly provided in the insurance coverage issued pursuant to W. Va. Code, 29-12-5. Because the insurance contract was not included in the record on review, the Court reversed and remanded the case to the circuit court for a determination of the liability of the defendants under the policy; however, the Court held that in future, dismissal of suits brought against the State under W. Va. Code, 29-12-5 and Pittsburgh Elevator v. W. Va. Board of Regents, 172 W. Va. 743, 310 S.E.2d 675 (1983), will not be reviewed on appeal unless the complaint limits the recovery sought to the applicable insurance coverage, and the scope of the coverage is apparent from the record.

Bernard Thomas Hanson v. Mineral County Board of Education, No. 23176 (November 14, 1996)(Recht, J.): 198 W. Va. 6, 479 S.E.2d 305:

Ruth Riffe v. William Armstrong; Deborah Nolley; Dr. Phillip Robertson; Springhaven, Inc., a West Virginia corporation; and Princeton Community Hospital, Inc., a West Virginia corporation, No. 22980 (July 17, 1996) (Albright, J.): 197 W. Va. 626, 477 S.E.2d 535:

Joan S. Lipscom v. Tucker County Commission, No. 23122 (July 11, 1996)(Albright, J.): 197 W. Va. 84, 475 S.E.2d 84:

Sandra Gail Maples and John Maples v. West Virginia Department of Commerce, Division of Parks and Recreation, No. 23112 (July 5, 1996)(Albright, J.): 197 W. Va. 318, 475 S.E.2d 410:

William L. Province v. Tammy M. Province and Michael L. Province and Linda D. Province v. William L. Province and Tammy M. Province, No. 22689 (May 17, 1996)(Cleckley, J.): 196 W. Va. 473, 74 S.E.2d 894:

Reviewing an interlocutory order entered pursuant to R. Civ. P. 54(b), the Court held that, when reviewing the propriety of such order, it must determine (1) whether the circuit court completely disposed of one or more claims and (2) whether there is Ano just reason for delay.@

Billie Burgess v. Mark Porterfield and State Farm Mutual Automobile Insurance Company v. SuperAmerica Group, Inc., dba SuperAmerica Corporation, No. 22956 (March 11, 1996)(McHugh, C.J.): 196 W. Va. 178, 469 S.E.2d 114:

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Scott Runyan Pontiac-Buick, Inc., et al., No. 22728 (July 19, 1995)(Cleckley, J.): 194 W. Va. 770, 461 S.E.2d 516:

State of West Virginia ex rel. Arrow Concrete Company, a West Virginia corporation; Arrow Industries Corporation, an Ohio corporation; and Paul Burge, Jr. v. Honorable George W. Hill, Jr., Judge of the Circuit Court of Wood County, and On Target Concrete, Inc., No. 22842 (June 19, 1995)(McHugh, C.J.): 194 W. Va. 239, 460 S.E.2d 54:

Mary Coleman, et al. v. Irwin Sopher, No. 22592 (June 15, 1995)(Cleckley, J.): 194 W. Va. 90, 459 S.E.2d 367:

Donald C. McCormick v. Allstate Insurance Company and David Dailey, No. 22551 (June 15, 1995)(Cleckley, J.): 194 W. Va. 82, 459 S.E.2d 359:

James M.B. and Lawrence E.B. v. Carolyn M. and William M., No. 22545 (February 17, 1995)(Cleckley, J.): 193 W. Va. 289, 456 S.E.2d 16:

Dismissing an appeal as improvidently granted where a R. Civ. P. 59(e) motion had not been ruled upon by the trial court, the Court held (1) it has an obligation to independently ascertain the basis of its jurisdiction in every case; (2) jurisdictional defects cannot be waived by the parties; (3) an appeal pursuant to W. Va. Code ' 58-5-1 can be taken only from "final" decisions of a circuit court; (4) "final" decisions are those which terminate the litigation between the parties, leaving nothing but enforcement; (5) R. Civ. P. 59(e) provides the procedural mechanism for parties who wish to challenge a final judgment entered as the result of a motion to dismiss or motion for summary judgment; (6) a R. Civ. P. 59(e), sometimes misnomered a "motion for reconsideration," filed within ten days of entry of judgment, suspends the finality of such judgment and renders the case premature for appeal; and (7) when a R. Civ. P. 59(e) motion is filed, the appeal period begins to run from the date of the entry of the order disposing of the motion.

State of West Virginia v. Dawnella Rogers, No. 21516 (July 22, 1993)(Workman, C.J.): 189 W. Va. 730, 434 S.E.2d 402:

Hayes Coonrod v. James B. Clark, individually and James B. Clark, d/b/a St. Albans Metal Works, Inc., and any other corporate entities solely controlled by James B. Clark, No. 21398 (July 20, 1993)(Neely, J.): 189 W. Va. 669, 434 S.E.2d 29:

Overruling its holding in First Nat'l Bank of Bluefield v. Clark, 181 W. Va. 494, 383 S.E.2d 298 (1989), and dismissing an appeal filed outside the four-month appeal period, the Court held that for a petition for appeal to be timely presented under W. Va. Code ' 58-5-4, the petition must be filed with the clerk of the circuit court within four months of the entry of judgment or within such additional period, up to two months, as may be authorized pursuant to W. Va. Code ' 58-5-4.

West Virginia Department of Health and Human Services v. Warren Hess, John Mellinger, and Vicki Britner, No. 21278 (March 16, 1993)(Miller, J.): 189 W. Va. 357, 432 S.E.2d 27:

Interpreting an unusual statute defining the term "days" for appeal purposes as "working days exclusive of Saturday, Sunday or official holidays," the Court held that, pursuant to W. Va. Code ' 29-6A-2(c), an appeal of a grievance board decision must only be filed within thirty "working days" and not "calendar days. "On another issue of appellate procedure, the Court held that although there is no statute relieving the State of the obligation to pay filing fees in connection with an appeal, where such fees are due, W. Va. Code ' 59-1-15 requires the circuit clerk to certify the amount due to the auditor for payment.

Robert L. Lowther v. Fred Riggleman and Granville J. Zopp v. Donald H. Lowther, No. 20997 (February 25, 1993)(Miller, J.): 189 W. Va. 68, 428 S.E.2d 49:

David F. Graf, M.D. v. West Virginia University and West Virginia University Medical Corporation, No. 20722 (December 11, 1992)(Neely, J.): 189 W. Va. 214, 429 S.E.2d 496:

Dallas Pugh v. Workers' Compensation Commissioner and Alamco, Inc., No. 21106 (December 11, 1992)(McHugh, C.J.): 188 W. Va. 414, 424 S.E.2d 759:

Charles W. Young v. JCR Petroleum, Inc., a foreign corporation; J.R. Barati; and Jerry L. Willey, Nos. 21010 and 21137 (November 12, 1992)(Neely, J.): 188 W. Va. 280, 423 S.E.2d 889:

Joyce Triggs v. Berkeley County Board of Education, No. 20220 (May 15, 1992)(Neely, J.): 187 W. Va. 500, 420 S.E.2d 260:

State of West Virginia v. Kennie Childers, No. 20426 (March 5, 1992)(Miller, J.): 187 W. Va. 54, 415 S.E.2d 460:

State of West Virginia v. Melissa Walters, No. 20110 (November 18, 1991)(McHugh, J.): 186 W. Va. 169, 411 S.E.2d 688:

Rejecting the prosecution's appeal from the dismissal of misdemeanor battery complaints, the Court held that W. Va. Code ' 58-5-30 does not authorize an appeal by the State from the dismissal of a criminal complaint initially filed in magistrate court.

Cynthia R. Durm v. Heck's, Inc., a West Virginia corporation; and New River Foodland, Inc., a West Virginia corporation, No. 19791 (February 13, 1991)(Workman, J.): 184 W. Va. 562, 401 S.E.2d 908:

Retha A. Osborne v. West Virginia Human Rights Commission and Advance/Gregg Security, No. 19838 (February 7, 1991)(Neely, J.): 184 W. Va. 584, 402 S.E.2d 253:

Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (December 6, 1990)(Miller, J.): 184 W. Va. 237, 400 S.E.2d 245:

Calvin P. Fenton, et al. v. Taunja Willis Miller, et al., No. 19174 (March 29, 1990)(Neely, C.J.): 182 W. Va. 731, 391 S.E.2d 744:

Frank Billotti v. A.V. Dodrill, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden, No. 18534 (March 9, 1990) (Brotherton, J.): 183 W. Va. 48, 394 S.E.2d 32:

Orville Arnold and Maxine Arnold v. United Companies Lending Corporation, a corporation, and Michael T. Searls, an individual, No. 25053 (December 14, 1998) (McCuskey, J.)(McGraw, J., not participating): ___ W. Va. ___, 511 S.E.2d 854:

Answering certified questions, the Court addressed issues regarding the validity of an arbitration agreement in the context of a consumer loan and the duties of loan brokers to prospective borrowers. The Court=s reformulated questions and the answers were: (1) AWhether an arbitration agreement entered into as part of a consumer loan transaction containing a substantial waiver of the consumer=s rights, including access to the courts, while preserving for all practical purposes the lender=s right to a judicial forum, is void as a matter of law.@ The Court found that under the circumstances of the case, the agreement which bound the consumer to relinquish his or her right of access to the courts as well as many substantive rights, while the lender retains the right to a judicial forum for purposes of collection and foreclosure proceedings, deficiency judgments, and other procedures, was unconscionable and therefore void and unenforceable as a matter of law; (2) AWhether a loan broker owes a fiduciary duty to prospective borrowers: (a) to provide a written contract containing a description of the services to be performed; (b) to give them an opportunity to consider and cancel the agreement; (c) to inform them of the costs of the broker=s services; and (d) to disclose the loan options and risks available to them.@ The Court answered subparts a, b and c in the affirmative based upon the West Virginia Consumer Credit and Protection Act, W. Va. Code ' 46A-6C-1 et seq. As to subpart d, the Court found that if a loan broker is acting as a broker in the strictest sense, the duty of disclosure exists. However, if a loan broker acts as a mere middleman, the law imposes no duty of disclosure.

State of West Virginia ex rel. United Asphalt Suppliers, Inc. v. Honorable David H. Sanders, Judge of the Circuit Court of Berkeley County, Martinsburg L.L.C., Giant Food Stores, Inc., Richard D. Poole, Inc., and United Paving, Inc., A West Virginia Corporation, No. 25319 (December 11, 1998)(Workman, J.)(McCuskey, J., participating) (McGraw, J., not participating): ___ W. Va. ___, 511 S.E.2d 134:

Leroy M. Rashid and Richard C. Rashid v. Schenck Construction Company, Inc., and Schenck & Associates, Inc., a Kentucky corporation, United States Fidelity & Guaranty Company, Intervenor, No. 21300 (April 23, 1993)(Brotherton, J.): 190 W. Va. 363, 438 S.E.2d 543:

Frank M. Erwin, Legal Guardian of Jody R. Henson, an infant v. Jody R. Henson, an infant and Dennis R. Henson, Administrator of the Estate of Shirley A. Henson v. State Farm Mutual Automobile Insurance Company, Robin L. Godfrey, No. 24181 (May 8, 1998)(Starcher, J.): 202 W. Va. 137, 502 S.E.2d 712:

Reversing and remanding the decision of the circuit court regarding the reduction of fees or costs claimed by an attorney appointed as a guardian ad litem, the Court held, inter alia, as follows: [1] In cases where a trial court appoints an attorney as guardian ad litem to represent the interests of an infant, in determining the appropriate fee to be paid to the guardian ad litem, the trial court shall consider the factors enunciated in Syllabus Point 4 of Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986), except for factor number six; and [2] Trial courts must give an explanation on the record for any order reducing the amount of fees or costs claimed by an attorney appointed as a guardian ad litem by the court. The explanation must provide enough guidance for the guardian ad litem to respond meaningfully by petitioning the trial court for reconsideration of the reduction order and allowing the attorney to submit additional supporting written documentation or explanation for the fees and costs. The trial judge=s award is reviewed under an abuse of discretion standard.

Sylvia Gum, as executrix for the Estate of Charles Lee Gum, deceased v. Roger Lee Dudley, Robert Dudley, Tamara Suzette Baker and Lillian B. Ayr, No. 23845 (December 8, 1997)(Davis, J.): 202 W. Va. 477, 505 S.E.2d 391:

Affirming in part, reversing in part and remanding with directions the lower court=s denial of Gum=s motion to set aside the jury verdict and grant a new trial, the Court addressed the following issues: (a) whether the failure to disclose the settlement agreement between Baker and Ayr warranted setting aside the jury verdict and granting a new trial and (b) whether the attorney=s failure to disclose the settlement agreement constituted a violation of the general duty of candor attorneys owe to out court. After reiterating the standard for granting a new trial and restating the requirement that settlement agreements be promptly disclosed both to the court and to opposing counsel, the Court held as follows: (1) When defendants settle a cross-claim between them the settlement agreement should be promptly disclosed to the court and all other parties in the litigation. (2) The general duty of candor is recognized in West Virginia and an attorney engaged in the practice law in this State have a general duty of candor to the courts of this State. (3) The general duty of candor requires attorneys be hones and forthright with court; that attorneys refrain form deceiving or misleading courts either through direct representations or through silence; and this duty is owed to courts during all aspects of litigation. (4) In determining whether an attorney=s silence violated the general duty of candor owed to a court, it must be shown by a preponderance of the evidence that (a) the silence invoked a material misrepresentation, (b) the court believed the misrepresentation to be true, (c) the misrepresentation was meant to be acted upon, (d) the court acted upon the misrepresentation, and (e) damage was sustained. (5) In determining the imposition of a sanction for violating the general duty of candor, a court may consider but is not limited to: (a) ordering disclosure of information not disclosed, (b) granting a continuance, (c) holding counsel in contempt, (d) precluding a party form calling a witness, offering evidence, or raising a defense, (e) dismissal of a case, (f) declaring a mistrial, (g) imposing attorney=s fees and litigation costs, or (h) granting a new trial. A sanction imposed by a trial court for violation of the general duty of candor is reviewed on appeal for an abuse of discretion; and (6) When this Court believes a case before it presents the appearance of conduct that does not comport with the West Virginia Rules of Professional Conduct, we will comply with Rule 8.3(a) of the RPC and Canon 3D(2) of the Code of Judicial Conduct, and refer the matter to the Office of Disciplinary Counsel for its review and appropriate action. The Court affirmed that part of the circuit court=s order denying a new trial on the grounds that failure to disclose the settlement agreement did not prejudice the outcome of this particular case. The Court reversed the circuit court=s final order insofar as it failed to consider Mr. Janelle=s conduct as a violation of the general duty of candor, and, therefore, remanded the case with directions that the circuit court impose an appropriate sanction due to Mr. Janelle=s violation of the general duty of candor.

In the Matter of John Curtis Dortch, No. 24040 (April 14, 1997)(McHugh, J.): 199 W. Va. 571, 486 S.E.2d 311:

Keith Shaffer, Administrator of the Estate of Keith Shaffer, II, deceased and Keith Shaffer, individually, Thomas G. Wilson v. Charleston Area Medical Center, Inc., a West Virginia corporation, Arvind Z. Vrandia, M.D., and Brigette Joseph, M.D., Crystal Hawkins Castleberry, No. 23419 (March 19, 1997)(McHugh, J.): 199 W. Va. 428, 485 S.E.2d 12:

Affirming, in part, and reversing, in part, an order quashing a charging lien filed by appellant attorney against the settlement of a civil action by appellee, also an attorney and appellant=s former associate, the Court ruled (1) the circuit court did not err in not allowing appellant additional time to submit proof on a quantum meruit claim where appellant was well aware that appellee would be presenting evidence on such claim and was given an additional ten days to provide proof, but failed to do so, and (2) the circuit court erred in not allowing appellant to develop his theory that he was entitled to one-half of the attorney fees from the settlement by virtue of an oral agreement with appellee and remanded the case for further proceedings.

William E. Smith, D. Ray Smith, and Smith Company, a corporation v. Charles B. Stacy, dba Spilman, Thomas & Klostermeyer, a law firm, No. 23196 (December 19, 1996)(Workman, J.):198 W. Va. 498, 482 S.E.2d 115:

Reversing summary judgment for defendants in a legal malpractice action and remanding for further proceedings, the Court ruled that evidence defendants breached a contract for specific services was sufficient to warrant application of the ten-year statute of limitations applicable to contract actions and adopted the continuous representation doctrine through which the statute of limitations in an attorney malpractice action is tolled until the professional relationship terminates with respect to the matter underlying the malpractice action. The Court held that the continuous representation doctrine does not apply where (1) the attorney=s role is only tangentially related to representation provided after the malpractice; (2) there are no clear indicia of an ongoing, continuous, developing and dependent attorney-client relationship; and (3) the attorney=s involvement after the malpractice is for the performance of the same or related services and is not merely a continuation of a general professional relationship.

Lawyer Disciplinary Board v. Phillip B. Allen, John P. Coale, and Greta Van Susteren, No. 22700 (November 15, 1996)(Albright, J.): 198 W. Va. 18, 479 S.E.2d 317:

Reluctantly dismissing ethics charges against out-of-state lawyers for improper solicitation of clients in West Virginia, the Court held that while the evidence clearly supported the Disciplinary Board=s finding that the respondents= conduct violated the Rules 7.1(c), 7.3(a), 7.3(b)(1), and 8.4(a) of the Rules of Professional Conduct, the Court did not have jurisdiction to discipline them because the misconduct occurred at a time when only persons Aregularly engaged in the practice of law@ in West Virginia were subject to professional discipline under Article VI, ' 4 of the West Virginia State Bar Constitution and By-Laws.

Kopelman and Associates, L.C., a West Virginia corporation v. Peggy L. Collins and Gregory M. Courtright, individually and dba Collins and Courtright, a partnership, No. 23183 (June 14, 1996)(Cleckley, J.): 196 W. Va. 489, 473 S.E.2d 910:

Reversing an order awarding an hourly fee in a contingency fee case taken by the plaintiff=s former associates when they departed the firm, the Court held that although the amount of time spent by each respective firm is an important factor in a contingency fee case where a lawyer employed by a firm takes the client upon his or her departure and no contract exists governing how the fees are to be divided, the following factors must also be considered (1) the relative risks assumed by each firm; (2) the frequency and complexity of any issues addressed by each firm; (3) the proportion of funds invested and other contributions made by each firm; (4) the quality of representation; (5) the degree of skill needed to achieve success; (6) the results of each firm=s efforts; (7) the reason the client chose the departing lawyer; (8) the viability of the claim at the time of departure; and (9) the amount of recovery. The Court further held that, as long as its reasons are set forth in the record, any award of attorney fees in these cases will be reviewed solely under an abuse of discretion analysis.

Linda M. Statler, Guardian of Destiny Lynn Ware v. Vel Anne Dodson, Executrix of the Estate of Richard A. Ware, No. 22544 (December 13, 1995)(Recht, J.) 195 W. Va. 646, 466 S.E.2d 497:

Reversing an order denying attorney fees based, in part, on the circuit court=s view that no implied contract existed between the attorney and the pretermitted child on whose behalf the attorney sought to establish paternity for purposes of sharing in her biological father=s estate, the Court held that a contract for legal services between infants and their lawyers will be implied if (1) employment of the lawyer was reasonably necessary; (2) the terms of employment were fair and reasonable; and (3) the legal services were performed and necessary.

State of West Virginia ex rel. John Doe, Jane Doe, and Jane Roe v. Honorable Joseph G. Troisi, Special Judge of the Circuit Court of Kanawha County, and Michele Rusen, Special Prosecuting Attorney for Kanawha County, No. 22817 (May 18, 1995)(Cleckley, J.): 194 W. Va. 28, 459 S.E.2d 139:

State of West Virginia ex rel. West Virginia Highlands Conservancy, Inc.; West Virginia Wildlife Federation; West Virginia Council, Trout Unlimited, Inc.; and West Virginia Citizen Action Group v. West Virginia Division of Environmental Protection and David C. Callaghan, Director of the West Virginia Division of Environmental Protection, No. 22233 (April 14, 1995)(Cleckley, J.): 193 W. Va. 650, 458 S.E.2d 88:

Troy Maynard v. Kenneth Adkins, No. 22529 (March 27, 1995)(McHugh, J.): 193 W. Va. 456, 457 S.E.2d 133:

Dana Ruth Musick v. Lynn Allen Musick, No. 22344 (December 15, 1994)(Workman, J.): 192 W. Va. 527, 453 S.E.2d 361:

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General of West Virginia v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, and Fahlgren Martin, Inc., No. 22235 (November 18, 1994)(Neely, J.): 192 W. Va. 195, 451 S.E.2d 761:

State of West Virginia ex rel. Calvin Ray Tyler v. Honorable A. Andrew MacQueen, III, Judge of the Circuit Court of Kanawha County, No. 22269 (July 15, 1994)(Workman, J.): 191 W. Va. 597, 447 S.E.2d 289:

Linda L. Powroznik, Administratrix and Personal Representative of the Estate of Dennis F. Powroznik v. C&W Coal Company, a corporation, No. 22014 (May 27, 1994)(Miller, J.): 191 W. Va. 293, 445 S.E.2d 234:

In a case involving whether a contingency fee on the full amount of a settlement in a Mandolidis case can be collected, the Court held (1) in determining the excess recovery in a deliberate intent suit against an employer under W. Va. Code ' 23-4-2(b), the amount of workers' compensation benefits must be deducted from the total award or settlement; (2) where a workers' compensation claim is made under W. Va. Code ' 23-4-2(b), the attorney fee for any workers' compensation award is controlled by the fee schedule set forth in W. Va. Code ' 23-5-5; and (3) the attorney fee for damages obtained in excess of workers' compensation benefits is not controlled by the fee schedule set forth in W. Va. Code ' 23-5-5.

West Virginia Canine College, Inc., and Wayne Davis v. David R. Rexroad, Lynne W. Rexroad, individually and as attorneys and partners in the law firm of Rexroad and Rexroad; RoyD. Law, as an attorney; and Jolynne Corp., a West Virginia Corporation, and Paul McCormick and David R. Rexroad v. Wayne Davis, No. 21970 (May 20, 1994)(Miller, J.): 191 W. Va. 209, 444 S.E.2d 566:

Robert Reed Sowa, heretofore, and in his individual capacity heretofore appointed as guardian ad litem v. Roy C. Huffman, Stanley Adkins, and Randy Harris, Committee for Nolan B. Hamric, an incompetent, and County Commission of Braxton County, John Hamric and Leah Hamric, Intervenors, No. 21569 (April 4, 1994) (McHugh, J.): 191 W. Va. 105, 443 S.E.2d 262:

Rejecting an attempt by a court-appointed guardian ad litem to recover attorney fees and expenses incurred after the competency of his client was determined and a committee appointed, the Court held that the duties of a guardian ad litem appointed pursuant to W. Va. Code ' 27-11-1(b) to represent a respondent in an incompetency proceeding conclude when a committee is appointed and the appeal period expires.

Barbara Ann Quesinberry v. Michael R. Quesinberry and Tina Michelle Carter v. Jerome Elwood Carter, Jr., No. 21927 (March 24, 1994)(Neely, J.): 191 W. Va. 65, 443 S.E.2d 222:

In a certified question proceeding involving issues regarding the compensation of attorneys appointed as guardians for prisoners and infants, the Court held (1) the Administrative Office of the Courts is not responsible for the payment of fees and costs for attorneys appointed as guardians for prisoners named as defendants in civil actions; (2) appointment of guardians for prisoners named as defendants in civil actions is not mandatory, pursuant to R. Civ. P. 17(c), if the trial court can order another appropriate remedy such as continuing the civil action pending the prisoner's release; (3) if the parties are indigent so as to preclude an assessment of the fees and costs of an attorney appointed as guardian for an infant in a paternity case, the child is an "eligible client" pursuant to W. Va. Code ' 29-21-1, et seq., requiring payment through the Office of Public Defender Services; and (4) in a limited number of instances when a court determines that an attorney is essential to the administration of justice in private civil litigation, an attorney may be appointed without compensation.

State of West Virginia ex rel. Charleston Area Medical Center, a corporation v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; Joshua Herb, an infant suing by his next friend and mother, Vicki Herb; and Vicki Herb; and Glen F. Herb, No. 21821 (October 29, 1993) (Miller, J.): 190 W. Va. 186, 427 S.E.2d 759:

Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (April 23, 1993)(Brotherton, J.): 189 W. Va. 222, 429 S.E.2d 504:

State of West Virginia ex rel. Angela McClanahan v. Honorable John Hamilton, Judge of the Circuit Court of Pendleton County, No. 21523 (April 23, 1993)(Miller, J.): 189 W. Va. 290, 430 S.E.2d 569:

J. David Judy, III v. Honorable Sam White, Judge of the Circuit Court of Doddridge County, No. 21324 (December 16, 1992)(McHugh, C.J.): 188 W. Va. 633, 425 S.E.2d 588:

State of West Virginia ex rel. Morgan Stanley & Co., Inc.; Goldman Sachs & Co.; and Chase Securities, Inc. v. Honorable A. Andrew MacQueen, Judge of the Circuit Court of Kanawha County, and State of West Virginia, No. 20857 (March 19, 1992) (Workman, J.): 187 W. Va. 87, 416 S.E.2d 55:

Gary Wayne Frasher v. West Virginia Board of Law Examiners, No. 20087 (July 29, 1991) (Workman, J.): 185 W. Va. 725, 408 S.E.2d 675:

Charles G. Garlow v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, AND David L. Grubb v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, Nos. 20204 and 20205 (December 17, 1991)(McHugh, J.): 186 W. Va. 457, 413 S.E.2d 112:

Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (November 22, 1991)(Miller, C.J.): 186 W. Va. 195, 411 S.E.2d 850:

The Committee on Legal Ethics of the West Virginia State Bar v. Arch A. Moore, Jr., No. 19724 (October 31, 1991)(Brotherton, J.): 186 W. Va. 127, 411 S.E.2d 452:

Bruce E. Hall and Talheim Village, Inc. v. Pat A. Nichols, No. 19363 (December 20, 1990) (Workman, J.): 184, W. Va. 466, 400 S.E.2d 901:

Bernice B. Weinstein v. West Virginia Board of Law Examiners, Ross Maruka, Bradley J. Pyles, G. Charles Hughes, Rebecca A. Baitty, Sarah Nell Hall, James St. Clair, and Robert Aitcheson, No. 19651 (June 14, 1990) (Miller, J.): 183 W .Va. 158, 394 S.E.2d 757:

Ralph J. Keister and Ruby Keister v. William W. Talbott and Charles F. Herold, Webster County Clerk, No. 19081 (April 2, 1990) (Miller, J.): 182 W. Va. 745, 391 S.E.2d 895:

State of West Virginia ex rel. Timothy N. Barber v. The Honorable Danny O. Cline, as Judge of the Fourteenth Judicial Circuit, No. 19457 (March 22, 1990)(McHugh, J.): 182 W. Va. 669, 391 S.E.2d 359:

Roy E. Hicks v. Amos C. Wilson, No. 19137 (January 25, 1990)(Neely, C.J.): 182 W. Va. 660, 391 S.E.2d 350:

State ex rel. Jay Montgomery Brown, Prosecuting Attorney of Marion County v. Honorable Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Frank C. Mascara, Special Prosecuting Attorney of Marion County, No. 19361 (January 25, 1990)(Neely, C.J.): 182 W. Va. 519, 389 S.E.2d 484:

Where a circuit judge sua sponte appointed a special prosecutor to present "certain cases" to a grand jury, the Court held that such appointment violated W. Va. Code ' 7-7-8, which limits such appointments to specific cases in which the elected prosecutor is disqualified.

Paula D. Cunningham v. The Honorable A.L. Sommerville, Jr., and the Honorable Danny O. Cline, Judges of the Fourteenth Judicial Circuit Court of West Virginia; William C. Martin, Prosecuting Attorney of Braxton County, West Virginia; and Richard A. Facemire, Prosecuting Attorney of Clay County, West Virginia, No. 19273 (December 20, 1989)(McHugh, J.): 182 W. Va. 427, 388 S.E.2d 301:

State of West Virginia ex rel. H.K. Porter Company, Inc. v. Honorable Sam White, Judge of the Circuit Court of Pleasants County, AND State of West Virginia ex rel. Steven F. Wright v. Honorable Sam White, Judge of the Circuit Court of Pleasants County, Nos. 19150 and 19151 (October 19, 1989) (Brotherton, C.J.): 182 W. Va. 97, 386 S.E.2d 25:

Orville Arnold and Maxine Arnold v. United Companies Lending Corporation, a corporation, and Michael T. Searls, an individual, No. 25053 (December 14, 1998) (McCuskey, J.)(McGraw, J., not participating): ___ W. Va. ___, 511 S.E.2d 854:

Answering certified questions, the Court addressed issues regarding the validity of an arbitration agreement in the context of a consumer loan and the duties of loan brokers to prospective borrowers. The Court=s reformulated questions and the answers were: (1) AWhether an arbitration agreement entered into as part of a consumer loan transaction containing a substantial waiver of the consumer=s rights, including access to the courts, while preserving for all practical purposes the lender=s right to a judicial forum, is void as a matter of law.@ The Court found that under the circumstances of the case, the agreement which bound the consumer to relinquish his or her right of access to the courts as well as many substantive rights, while the lender retains the right to a judicial forum for purposes of collection and foreclosure proceedings, deficiency judgments, and other procedures, was unconscionable and therefore void and unenforceable as a matter of law; (2) parties to the liquidation proceedings, so long as the issue appealed may impact the ultimate disposition of the litigation. Moreover, a party is not required to challenge the final order in the circuit court before pursuing appeal. Any error by the circuit court which the party could not have reasonably known or which the party could not have reasonably brought to the circuit court=s attention prior to the entry of the court=s final order may be raised on appeal. Because the circuit court failed to adhere to the mandatory provisions contained in W. Va. Code ' 33-24-25(b) requiring the court to schedule a hearing and to dictate the specifics of notification including naming the individual responsible for providing notice and the parties to receive such notice, two of the cases were remanded for hearings in compliance with the mandatory statutory provisions. The Court also concluded that a state may impose a limitation date on federal claims against an insolvent insurance company or health service corporation when that date merely subordinates the priority of late filed federal claims rather than causing them to be absolutely invalidated. The Court held that W. Va. Code ' 33-24-27, which specifies the order of distribution for claims against the liquidated estate of certain insolvent insurance companies and assigns late filed claims to distribution priority VII, is a law that was enacted for the purpose of regulating the business of insurance in that it operates to protect the claims of policy holders. Thus, under the operation of the McCarran-Ferguson Act, W. Va. Code ' 33-24-27 reverse preempts the federal priority statute.

Jordache Enterprises, Inc., a foreign corporation, et al. v. National Union Fire Insurance Company of Pittsburgh, PA, No. 24672 (November 25, 1998)(Maynard, J.)(Davis, C. J., concurring, in part, and dissenting, in part): ___ W. Va. ___, 513 S.E.2d 692:

In an insurance coverage and bad faith action, the insureds appealed the circuit court=s decision to grant summary judgment to the insurer. The Court affirmed in part and reversed in part, holding inter alia that: (1) a debtor in bankruptcy who is a party to an action but whose participation in the action is automatically stayed by the provisions of 11 U.S.C. ' 362 may be precluded by the principles of res judicata and collateral estoppel from relitigating the same claims or issues of which there was a final adjudication as to his co-defendants, in a subsequent action; (2) in order for a policyholder to bring a common law bad faith claim against his insurer, according to Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986) and its progeny, the policyholder must first substantially prevail against his insurer in the underlying contract action.

Public Citizen, Inc. v. First National Bank in Fairmont, No. 23282 (December 5, 1996)(Cleckley, J.): 198 W. Va.329, 480 S.E.2d 538

Reversing a bench judgment in favor of defendant bank in an action pursuant to the Uniform Commercial Code to recover sums embezzled by plaintiff=s employee in 1989 by depositing in his personal account checks made out to plaintiff, AAttn@ of the employee, the Court ruled, inter alia, that (1) in reviewing findings and conclusions of the circuit court in a bench trial, the final order and the ultimate disposition are reviewed under an abuse of discretion standard, while the circuit court=s underlying factual findings are reviewed under a clearly erroneous standard; (2) the circuit court erred in applying W. Va. Code, 46-3-110(d)(1993), specifying that checks are payable in the alternative where the language of the instrument is ambiguous, retroactively to the 1989 transactions; and (3) the bank did not act according to Athe reasonable commercial standards@ of the banking business in allowing corporate checks to be deposited in an individual account without first inquiring as to the employee=s authority, so as to bar plaintiff=s claim for contributory negligence under W. Va. Code, 46-3-406.

Patricia L. Peters v. Nanette Peters, Executrix of the Estate of John Lewis Peters, deceased, as such Executrix, and Nanette Peters, in her individual right, Don Randall Peters, John Michael Peters, and the Whitesville State Bank, a corporation, No. 21896 (March 24, 1994)(Neely, J.): 191 W. Va. 56, 443 S.E.2d 213:

FirstBank Shinnston, a West Virginia banking corporation v. West Virginia Insurance Company, a corporation; and Frank W. Maley, Jr., No. 19760 (July 25, 1991)(McHugh, J.): 185 W. Va. 754, 408 S.E.2d 777:

Sherwood Sparks, Sydney Larrick, Sara Otto, Nancy Straub, Jim Parker, Howard Earehart, Shirley Minter and Tom Stone, Trustees of the Beckley United Methodist Temple of Beckley v. Farmers Federal Savings and Loan Association, a federally chartered savings and loan association, No. 19428 (July 20, 1990)(Brotherton, J.): 183 W. Va. 315, 395 S.E.2d 559:

Gary C. Milner v. Garfield H. Milner, Jr. and The Montgomery National Bank, No. 19251 (July 12, 1990)(Workman, J.): 813 W. Va. 273, 395 S.E.2d 517:

State of West Virginia ex rel. Hanley C. Clark, Insurance Commissioner of the State of West Virginia v. Blue Cross Blue Shield of West Virginia, Inc; West Virginia State Medical Association; West Virginia Hospital Association; Blue Cross Western Pennsylvania; International Union; United Mine Workers; and Joann Williams, et al.; Pennsylvania Blue Shield AND State of West Virginia ex rel. Hanley C. Clark, Insurance Commissioner of the State of West Virginia v. Blue Cross Blue Shield of West Virginia, Inc.; West Virginia State Medical Association; West Virginia Hospital Association; Pennsylvania Blue Shield; International Union; United Mine Workers; and Joann Williams, et al.; Blue Cross Western Pennsylvania AND State of West Virginia ex rel. Hanley C. Clark, Insurance Commissioner of the State of West Virginia v. Blue Cross Blue Shield of West Virginia, Inc.; West Virginia State Medical Association; West Virginia Hospital Association; Blue Cross Western Pennsylvania; Pennsylvania Blue Shield; International Union; United Mine Workers; and Joann Williams, et al.; United States of America, on behalf of Champus, Department of Veterans Affairs -VA Hospitals, Department of Defense, Department of Health and Human Services, Office of Personnel Management and Medicaid, et al., Nos. 24625, 24626 and 24627 (December 4, 1998) (Davis, C. J.): 230 W. Va. 690, 510 S.E.2d 764:

The Court affirmed in part, reversed in part and remanded matters arising out of a complex liquidation proceeding involving Blue Cross Blue Shield of West Virginia. The Court found that W. Va. Code ' 33-24-25 establishes procedures to be followed in liquidation proceedings involving hospital service corporations, medical service corporations, dental service corporations or health service corporations. Included in the liquidation procedures are directions for resolving objections to the receiver=s determinations in such proceedings. Pursuant to the statute, the legislature has removed the requirement that parties must challenge final orders in the circuit court before pursing appeals. Thus, the Court held that when the procedures set forth in W. Va. Code ' 33-24-25 have been followed, and the circuit court has entered a final order, that order may be appealed even though it does not completely and finally resolve a cause of action arising in the liquidation proceedings, or terminate litigation between parties to the liquidation proceedings, so long as the issue appealed may impact the ultimate disposition of the litigation. Moreover, a party is not required to challenge the final order in the circuit court before pursuing appeal. Any error by the circuit court which the party could not have reasonably known or which the party could not have reasonably brought to the circuit court=s attention prior to the entry of the court=s final order may be raised on appeal. Because the circuit court failed to adhere to the mandatory provisions contained in W. Va. Code ' 33-24-25(b) requiring the court to schedule a hearing and to dictate the specifics of notification including naming the individual responsible for providing notice and the parties to receive such notice, two of the cases were remanded for hearings in compliance with the mandatory statutory provisions. The Court also concluded that a state may impose a limitation date on federal claims against an insolvent insurance company or health service corporation when that date merely subordinates the priority of late filed federal claims rather than causing them to be absolutely invalidated. The Court held that W. Va. Code ' 33-24-27, which specifies the order of distribution for claims against the liquidated estate of certain insolvent insurance companies and assigns late filed claims to distribution priority VII, is a law that was enacted for the purpose of regulating the business of insurance in that it operates to protect the claims of policy holders. Thus, under the operation of the McCarran-Ferguson Act, W. Va. Code ' 33-24-27 reverse preempts the federal priority statute.

David C. Anderson, Jr., individually and as Executor of the Estate of Charlotte Lee Anderson, deceased v. Ricky A. Robinson, and H&H Industrial, Inc., a corporation and CNA, akA Continental National American Insurance Company, CNA, aka Continental Columbia Casualty Company, and Gibraltar Casualty Company, No. 19839 (July 2, 1991) (McHugh, J.): 186 W. Va. 92, 411 S.E.2d 35:

Marsha Mills, individually and as the Administratrix of the Estate of Terrance Lee Mills v. Quality Supplier Trucking, Inc., a West Virginia corporation, and Roadway Express, Inc., a corporation, No. 25141 (November 20, 1998)(Workman, J.): 203 W. Va. 621, 510 S.E.2d 280:

Answering a certified question from the Circuit Court of Mineral County, West Virginia, the Court was asked to decide whether Maryland law governing the affirmative defense of contributory negligence would apply in a wrongful death action pending in West Virginia against an Ohio trucking company for an incident that occurred in Maryland. Because the doctrine of contributory negligence, which bars a plaintiff=s recovery if that plaintiff is guilty of any negligence, is against the public policy of West Virginia, the Court held that the contributory negligence law of foreign jurisdictions will not be enforced in the courts of this State.

Lucia Blais v. Allied Exterminating Company, et al., No. 23160 (December 13, 1996) (Recht, J.): 198 W. Va. 674, 482 S.E.2d 659:

Reversing summary judgment for defendant in an action for injuries resulting from application of insecticides to plaintiff=s Virginia residence and remanding for further proceedings, the Court ruled that (1) the doctrine of equitable estoppel is a substantive rule of law, requiring application of lex loci delicti, the law of the jurisdiction in which the cause of action arose and (2) the circuit court erred in not considering Virginia law in applying the doctrine of equitable estoppel as a defense to defendants= assertion that the statute of limitations barred plaintiff=s cause of action.

State of West Virginia ex rel. Herbert Elish, et al. v. Honorable Ronald E. Wilson, Judge of the Circuit Court of Hancock County; Larry G. Godich, et al., No. 21752 (July 22, 1993)(Brotherton, J.): 189 W. Va. 739, 434 S.E.2d 411:

Roger Nadler, Executor of the Estate of James A. Schoettkner and Administrator of the Estate of Sara R. Schoettkner, et al. v. Liberty Mutual Fire Insurance Company, No. 21004 (November 13, 1992)(Miller, J.): 188 W. Va. 329, 424 S.E.2d 256:

Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (May 15, 1992)(Miller, J.): 187 W. Va. 292, 481 S.E.2d 738:

Affirming a $6.2 million verdict in a wrongful death case arising from the electrocution of an Ohio employee at a West Virginia power plant, but denying the power company and general contractor's attempt to seek contribution from the independent contractor for whom the employee worked, the Court followed Ohio law, holding that (1) comity is a court-created doctrine by which a forum court may give the laws accorded by another state effect in the subject litigation; (2) comity is founded upon principles of harmony and uniformity among coequal states, of the reasonable expectations of parties who engage in multistate activity, and of compatibility of the laws of the forum and other state; (3) W. Va. Code ' 23-2-1(c) makes the compensation law of another state the exclusive remedy against the employer for a nonresident employee who covered by compensation law of another state and who injured while temporarily working in West Virginia; and (4) a foreign corporation not covered by West Virginia's workers' compensation law, but covered by the compensation law of another state, who temporarily employs a nonresident who is injured in West Virginia, is immune from liability in an action for contribution by a joint tortfeasor.

Liberty Mutual Insurance Company v. Triangle Industries, Inc., and Triangle PWC, Inc. v. Wausau Insurance Companies and Employers Insurance of Wausau; New Jersey Property-Liability Guaranty Association, on behalf of Ideal Mutual Insurance Company, in Liquidation, and Zurich-American Insurance Company, Severally and in the Alternative, No. CC999 (February 21, 1990)(Brotherton, J.): 182 W. Va. 580, 390 S.E.2d 562:

State of West Virginia ex rel. Stan Farley, Sheriff of Putnam County v. Honorable O. C. Spaulding, Judge of the Circuit Court of Putnam County, and the County Commission of Putnam County, No. 24965 (July 14, 1998)(McCuskey, J.)(Workman, J., and Starcher, J., concurring)(Davis, C. J., and Maynard, J., dissenting): 203 W. Va. 275, 507 S.E.2d 376:

Granting as moulded a petition for writ of prohibition, seeking to prevent Judge Spaulding from enforcing two administrative orders designating nine individuals hired by the County Commission to perform court security functions for the county=s judiciary as court marshals and granting them certain power and duties, the Court held, inter alia, as follows: [1] a county commission has the authority to employ individuals to perform court security functions for the county judiciary, but this authority is limited insofar as it cannot be exercised in a manner which impairs or supplants the power and duty of the county sheriff, under W. Va. Code ' 51-3-5 (1923) and Rule VII of the West Virginia Trial Court Rules, to select one or more deputy sheriffs to serve as court bailiff and to provide a sufficient number of bailiffs for every court of record in the county; and [2] the judge of the circuit court, or the chief judge of a multi-judge circuit, has the inherent administrative power to designate and authorize persons to perform security services necessary to the safe and efficient operation of the county judiciary, provided that such administrative action does not impair or supplant the power and responsibility of the county sheriff to furnish deputy sheriffs to serve as court bailiffs for the county=s courts.

Albert Cable; Brenda Cable; David Cable; Roger Cable; Linda Cable, singly, and as legal guardian and next friend of Brittany Cable, her infant child; Claude White; Chloe White; Brian Bullock; Angela Bullock; Patricia Bullock; Timothy Bullock; Mary Hall; Grady Hall; Joseph Hundley and Allene Hundley v. Tennis Hatfield, Clerk of the Circuit Court of Mingo County, West Virginia, and Marrowbone Development Company, No. 24479 (July 10, 1998)(Davis, C. J.)(Starcher, J., dissenting)(Maynard, J., deemed himself disqualified)(O'Briant, Judge, sitting by special assignment): 202 W. Va. 638, 505 S.E.2d 701:

Affirming the circuit court=s dismissal of a writ of prohibition, seeking to require the circuit clerk to file a complaint submitted by mail, the Court held inter alia as follows: [1] W. Va. Code ' 56-4-36 (1923) (Repl. Vol. 1997) is superseded by W. Va. R. Civ. P. 7(c) and 71B(a), insofar as that statute relates to extraordinary remedies. Thus, demurrer is no longer available to challenge a petition for an extraordinary remedy. To be proper, a challenge to the legal sufficiency of a petition for an extraordinary remedy must be made in the form of a Rule 12(b)(6), as Rule 12(c) motion or a Rule 56 motion; [2] a circuit judge, or chief judge of a multi-judge circuit, shall have the authority to enter an administrative order governing when separate filing fees are required and may require additional filing fees in multiple plaintiff cases until such time as a statewide rule governing filing fees in multiple plaintiff cases is promulgated; [3] when a circuit court clerk receives a complaint, which lists multiple plaintiffs, complies with the W. Va. Rules of Civil Procedure and is accompanied by the filing fee set forth by W. Va. Code '59-1-11(a) (1996) (Repl. Vol. 1997), the clerk must file the complaint. Once such a complaint has been filed, the circuit judge to whom the case has been assigned must determine whether the requirements, if any, that have been administratively established by the chief judge of that circuit are met such that additional filing fees should be assessed; [4] W. Va. R. Civ. P. 3 requires, in mandatory language, that a completed civil case information statement accompany a complaint submitted to the circuit clerk for filing. In the absence of a completed civil case information statement, the clerk is without authority to file the complaint.

State of West Virginia ex rel. The County Commission of McDowell County, West Virginia v. The Honorable Kendrick King, Chief Judge of the Circuit Court of McDowell County, West Virginia, No. 24480 (June 12, 1998)(Starcher, J.): 202 W. Va. 258, 503 S.E.2d 826:

Granting a petition for writ of prohibition as moulded, relating to the administrative authority of the circuit court to determine, approve and change the location of magistrate court and family law master offices, the Court held as follows: [1] W. Va. Code '' 50-1-11 (1980) and 48A-4-21 (1993) recognize that the overall authority to determine and approve the location of magistrate court and family law master offices [Alower court offices@] lies with the West Virginia supreme Court of Appeals. The primary responsibility for recommending a location for such offices to the Supreme Court lies with the judge, or chief judge in a circuit with more than one judge, of the circuit court for the county in which the offices are located, in consultation with the county commission and under the guidance of principles and procedures established by the Supreme Court. In responding to recommendation from the circuit court, the Supreme Court will show deference to the circuit court=s experience and knowledge of local conditions; [2] The preferred location for lower court offices is a county-owned building, assuming that the building is otherwise safe, convenient, affordable and meets all applicable standards. If suitable space for such offices in a county-owned building cannot be arranged, the preference should be given to other public or quasi-public buildings such as municipal buildings or senior citizen centers. If a public or quasi-public building location cannot be arranged, privately owned buildings may be used. However, before there is a change of location from a public or quasi-public building to a private building, it must be established that the current offices are unsafe, inadequate, or otherwise fail to meet appropriate standards, and that the owner of the public or quasi-public building currently in use cannot make the building meet standards at a reasonable cost; [3] once a lower court office location has been established in a county, if a judge, or chief judge in a circuit with more than one judge, believes that the location of the offices should be changed, the judge must, prior to taking any action to implement such a change, consult with and provide a statement of reasons for the proposed change to the administrative director of the Supreme Court. Additionally, if major rehabilitation or major renovation of existing lower court offices is planned by the owner of the offices, the judge, or chief judge, shall, prior to the commencement of any such rehabilitation or renovation, obtain and submit plans for such rehabilitation or renovation to the administrative director; [4] no change in office location or major office renovation or rehabilitation of lower court offices shall be ordered, permitted or authorized by the circuit court without the prior approval of the Supreme Court; [5] a judge, or chief judge in a circuit with more than one judge, in consultation with the administrative director of the Supreme Court, is empowered to make inquiries and conduct proceedings to assure that funds expended from the magistrate court fund or by this Court for lower court offices are as a priority expended by the recipient of the funds to ensure that the offices are appropriately maintained and kept up to applicable standards.

F. Jane Hustead, Guardian ad Litem, et al. v. Ashland Oil, Inc., No. 23169 (June 17, 1996) (Workman, J.): 197 W. Va. 55, 475 S.E.2d 55:

Rejecting an attempt by a guardian ad litem to challenge, post-judgment, through a declaratory judgment action, the settlement of cases in behalf of infant plaintiffs, the Court held (1) when a court approves a settlement by entry of a judgment order pursuant to W. Va. Code ' 56-10-4, the judgment, if unappealed, becomes final and subject to the doctrine of res judicata; (2) although R. Civ. P. 60(b) permits collateral attack on a final judgment, it is available only when one of the enumerated circumstances stated therein is present; (3) a declaratory judgment cannot be used as a substitute for a direct appeal; and (4) in determining whether a declaratory judgment action should be heard, the court must decide (i) whether the claim involves uncertain and/or contingent events that may not occur, (ii) whether the claim is dependent upon facts, (iii) whether there is adversarialness among the parties, and (iv) whether a declaration would settle the underlying controversy.

Andrew Haba, Janet Lowry Haba, as Administrators of the Estate of Andrew J. Haba v. The Big Arm Bar and Grill, Inc., et al., No. 22706 (March 1, 1996)(Albright, J.): 196 W. Va. 129, 468 S.E.2d 915:

Affirming the award of summary judgment where an earlier trial involving slightly different parties resulted in the allocation of more than fifty percent fault to the plaintiffs= decedent arising from the same accident, the Court held that (1) in the absence of a claim of inadequate representation, parties who resist consolidation of separate actions involving identical factual issues are bound by factual determinations made in those separate actions and are estopped from relitigating those issues and (2) where a jury has determined a party=s comparative fault in relation to all persons whose negligence contributed to a particular event, and such party=s negligence exceeds the combined negligence of other persons involved in the event, such party is barred from recovering damages in a subsequent action.

State of West Virginia v. Susan Miller, No. 22571 (May 18, 1995)(Cleckley, J.): 194 W. Va. 3, 459 S.E.2d 114:

Leroy M. Rashid and Richard C. Rashid v. Schenck Construction Company, Inc., and Schenck & Associates, Inc., a Kentucky corporation, United States Fidelity & Guaranty Company, Intervenor, No. 21300 (April 23, 1993)(Brotherton, J.): 190 W. Va. 363, 438 S.E.2d 543:

Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (April 23, 1993)(Brotherton, J.): 189 W. Va. 222, 429 S.E.2d 504:

Public Citizen, Inc. v. First National Bank in Fairmont, No. 23282 (December 5, 1996)(Cleckley, J.): 198 W. Va. 329, 480 S.E.2d 538

Reversing a bench judgment in favor of defendant bank in an action pursuant to the Uniform Commercial Code to recover sums embezzled by plaintiff=s employee in 1989 by depositing in his personal account checks made out to plaintiff, AAttn@ of the employee, the Court ruled, inter alia, that (1) in reviewing findings and conclusions of the circuit court in a bench trial, the final order and the ultimate disposition are reviewed under an abuse of discretion standard, while the circuit court=s underlying factual findings are reviewed under a clearly erroneous standard; (2) the circuit court erred in applying W. Va. Code, 46-3-110(d)(1993), specifying that checks are payable in the alternative where the language of the instrument is ambiguous, retroactively to the 1989 transactions; and (3) the bank did not act according to Athe reasonable commercial standards@ of the banking business in allowing corporate checks to be deposited in an individual account without first inquiring as to the employee=s authority, so as to bar plaintiff=s claim for contributory negligence under W. Va. Code, 46-3-406;.

Ralph R. Young, Jr., and Marion M. Young v. Sheryl Sodaro, No. 22349 (February 21, 1995)(McHugh, J.): 193 W. Va. 304, 456 S.E.2d 31:

N. Joe Rahall v. Nicholas Tweel, No. 20102 (November 1, 1991)(Miller, C.J.): 186 W. Va. 136, 411 S.E.2d 461:

Reversing a trial court decision that a party who signs a promissory note, but receives no direct benefit, is an accommodation party, and not liable to the principal, the Court held (1) a party's status on commercial paper is determined solely from the face of the instrument under W. Va. Code ' 41-1-101, et seq., with any ambiguity resolved in favor of the party's status as an endorser; (2) because a party's status on commercial paper can be determined from usage or custom, a signature in the lower right hand corner of an instrument may be deemed an intent to sign as the maker of a note or the drawer of a draft; (3) although the accommodation status of a party may be established by parol evidence against the party accommodated, parol evidence is not admissible, under W. Va. Code ' 46-3-415(3), against a holder in due course without notice of the accommodation; and, (4) the party asserting status as an accommodation party has the burden of proof, with the factors to be considered including the party's stated purpose in signing the note, the party's involvement in negotiating the financing, the purpose of the loan, whether the party received any benefit from the transaction, and whether the party's signature was necessary to secure the loan.

Solid Waste Services of West Virginia v. Public Service Commission and Halt Out-of-State Garbage, Inc., No. 20996 (July 15, 1992)(Neely, J.): 188 W. Va. 117, 422 S.E.2d 839:

West Virginia AAA Statewide Association v. Public Service Commission and West Virginia Towing and Recovery Association, No. 19941 (December 11, 1991)(Workman, J.): 186 W. Va. 287, 412 S.E.2d 481:

State of West Virginia ex rel. Linda Ward, as executrix of the estate of L. David Ward, and Linda Ward, Individually and as mother and next friend of Isaac Willard Ward, Benjamin David Ware, Tiffany Sheree Ward and Kenneth Ryan Ward v. Honorable George W. Hill Jr., Judge of the Circuit Court of Wood County, F. G. Powderly, M.D.; Bruce Pierson, Jr., M.D.; and Jorge E. Prieto, M.D., No. 23989 (July 2, 1997)(Starcher, J.): 200 W. Va. 270, 489 S.E.2d 24:

Granting a writ of prohibition to prevent enforcement of a circuit court order allowing nonsettling defendants in a medical malpractice action to interview and use at trial the testimony of a settling defendant=s expert witness, the Court held that (1) the circuit court abused its discretion under W. Va.R.Civ.P. 6 in holding a hearing on the non-settling defendants= motion to depose the settling defendant=s experts where plaintiffs were given only about 24 hours notice of such hearing and almost no time to prepare; (2) absent a formal agreement among defendants in a litigation proceeding involving multiple defendants, the circuit court should not generally permit a settling defendant=s expert witnesses to testify for the remaining defendants; and (3) when a settlement agreement between the settling defendant and the plaintiffs prohibits the continued use of the settling defendant=s expert witnesses by the remaining defendant=s the circuit court, subject to W. Va.R.Civ.P. 26(b)(4)(B), should honor that agreement by not permitting the remaining defendants to use or present such information in the preparation for or conduct of the trial.

Bernard Thomas Hanson v. Mineral County Board of Education, No. 23176 (November 14, 1996)(Recht, J.): 198 W. Va 6, 479 S.E.2d 305:

Billie Burgess v. Mark Porterfield and State Farm Mutual Automobile Insurance Company v. SuperAmerica Group, Inc., dba SuperAmerica Corporation, No. 22956 (March 11, 1996)(McHugh, C.J.): 196 W. Va. 178, 469 S.E.2d 114:

Affirming a circuit court=s refusal to reduce a punitive damages verdict by the amount of an earlier settlement, the Court held that defendants against whom awards of compensatory and punitive damages are rendered are entitled to a reduction of the compensatory damages award, but not the punitive damages award, by the amount of any good faith settlement previously made with the plaintiff by other jointly liable parties.

Annette J. Painter v. Patrick Devolta Peavy, No. 22206 (November 18, 1994)(Cleckley, J.): 192 W. Va. 189, 451 S.E.2d 755:

State of West Virginia ex rel. McDowell County Board of Education v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, Melanie Campbell Church, and Wendy Emazetta Burks, No. 22050 (July 20, 1994)(Workman, J.): 191 W. Va. 711, 447 S.E.2d 912:

Walter E. Hamilton, Executor of the Estate of David L. Hamilton, and Walter E. Hamilton, duly appointed Committee for Joan A. Hamilton v. John W. Harper, Haskell Burke and Paul D. Waugh, Inc., a corporation, dba Ragtime Club, and Nationwide Mutual Insurance Company, No. 19710 (April 25, 1991)(Workman, J.): 185 W. Va. 51, 404 S.E.2d 540:

James K. Sexton and Barbara Sexton v. Public Service Commission and Southern Jackson County Public Service District, a public utility, No. 21147 (November 13, 1992) (Miller, J.): 188 W. Va. 305, 423 S.E.2d 914:

Potomac Valley Soil Conservation District, a public body under the law of the State of West Virginia v. Wanda E. Wilkins, et al., No. 20727 (November 12, 1992)(Brotherton, J.): 188 W. Va. 275, 423 S.E.2d 884:

Thomas D. Rice v. The Honorable Cecil H. Underwood, Governor of the State of West Virginia, No. 25166 (December 11, 1998) (Workman, J.)(Starcher, J., dissenting)(McCuskey, J., disqualified) (Henning, Judge, sitting by temporary assignment)(McGraw, J., not participating): ___ W. Va. ___, ___ S.E.2d ___, [1998 WL 865101]:

Affirming the lower court=s refusal to issue Writs of Prohibition or Mandamus, the Court held that W. Va. Code ' 6-6-4, the general removal statute authorizing a governor to remove appointed executive officers at a governor=s will and pleasure without stating his reasons for removal, is consistent with the West Virginia Constitution, has not been repealed by implication and was properly invoked by Governor Underwood in removing Mr. Rice as an appointed member of the West Virginia Racing Commission.

State of West Virginia v. George A. Easton AND State of West Virginia v. Kevin True, Nos. 25057 and 25058 (December 7, 1998)(Davis, C. J.)(McCuskey, participating)(McGraw, J., not participating): 203 W. Va. 631, 510 S.E.2d 465:

Appellant=s convictions for the felony offenses of the willful creation by a custodian of an emergency situation for an incapacitated adult and convictions for misdemeanor battery were affirmed. As to the constitutional vagueness challenge to W. Va. Code ' 9-6-15(b) the Court found that the statutory language sufficiently satisfied the requirements of notice of both the proscribed conduct and the possible penalties. The Court also held that Anot only may an individual be convicted of a crime in accordance with the criminal statute in effect at the time of his/her offense, but he/she may also be sentenced in conformity with the same criminal statute found to be applicable.@ Finally, the Court held that the convictions for battery and willful creation of an emergency situation when the offenses arose from the same incident and involved the same victim did not constitute a violation of double jeopardy rights. The Court found that the plain language of the two penal statutes clearly indicated that the defendants were convicted of and sentenced for two distinct criminal offenses.

State of West Virginia ex rel. Samuel Anstey v. William K. Davis, Commissioner, Division of Corrections, and George Trent, Warden, Mt. Olive Correctional Center AND State of West Virginia ex rel. Gary W. Sheppard and Dwaine C. King v. William K. Davis, Commissioner, Division of Corrections, and George Trent, Warden, Mt. Olive Correctional Center AND State of West Virginia ex rel. Larry E. James, Jr. v. William K. Davis, Commissioner, Division of Corrections, and George Trent, Warden, Mt. Olive Correctional Center AND Charles Plantz v. George Trent, Warden, Mt. Olive Correctional Center, Nos. 25155, 25156, 25157 and 25158 (November 20, 1998)(Maynard, J.)(Davis, C.J., concurring): 203 W. Va. 538, 509 S.E.2d 579:

In cosolidated proceedings involving inmate of the Mount Olive Correctional Center, the Court held: (1) prison inmates have no constitutional right to possess personal computers in their cells; (2) the elements of an inmate=s claim under a retaliation theory are the inmates invocation of a specific constitutional right, the defendant=s intent to retaliate against the inmate for his or her exercise of that right, a retaliatory adverse act and causation, i.e., but for the retaliatory motive, the complained of incident would not have occured; and (3) 95 C.S.R. 2, ' 18.5 (1996), which concerns the security of the personal property of prisoners, does not mandate the storing of personal property by prison administrators, but merely states the procedures to be followed if personal property is stored.

State of West Virginia ex rel. George Carper v. West Virginia Parole Board, No. 25184 (November 20, 1998)(Starcher, J.)(Davis, C.J., dissenting): 203 W. Va. 583, 509 S.E.2d 864:

In granting a Writ of Mandamus as molded, the Court reviewed the retroactive application of a 1997 statutory amendment to West Virginia parole law, W. Va. Code ' 62-12-13, which authorized increased periods of time between parole hearings for prisoners serving life terms of imprisonment with the possibility of parole. The Court held that the retroactive application of the statute does not facially violate the constitutional prohibition against ex-post facto laws, if the amendment is narrowly applied on a case-by-case basis with appropriate safeguards. Specifically, the Court held that to pass constitutional muster under the ex-post facto clause, the provisions of W. Va. Code ' 62-12-13(a)(5)C allowing up to 3 years between parole reviews for prisoners serving terms of life imprisonment with the possibility of paroleCmust be applied on a case-by-case basis to prisoners whose offenses occurred at a time when the law prescribed annual parole reviews. The Board of Parole may only extend the period between parole review hearings for such prisoners beyond 1 year if the Board has made a case-specific individualized determination with reasoned findings on the record showing why there will be no detriment or disadvantage to the prisoner from such an extension. Additionally, the Court held that due process requires that such a prisoner receiving a review period of more than 1 year must be afforded the opportunity to submit information for the Board=s consideration during any extended period requesting that a review be granted before the expiration of the extended period.

State of West Virginia ex rel. West Virginia Deputy Sheriffs= Association, Inc., a West Virginia corporation, Rodney A. Miller, Rick Woodyard, Pat Mull, K. C. Bohrer, David D. Gentry, Joseph C. Stiles, and Terry L. Miller, individually and as members of the Executive Board of the West Virginia Deputy Sheriffs= Association v. James L. Sims, Executive Secretary of the State of West Virginia Consolidated Public Retirement Board, David L. Wyant, Chairman; and the Honorable Cecil H. Underwood, Governor; Glen B. Gainer, III, Auditor; John D. Perdue, Treasurer; Joseph F. Markus, Cabinet Secretary; Carl A. Guthrie, Janet F. Wilson, James P. Quarles, Elizabeth Poundstone, Beatrice H. Gladwill and S. S. Satterfield, Members, No. 25212 (November 18, 1998)(Starcher, J.)(Davis, C.J., deemed herself disqualified): ___ W. Va. ___, 513 S.E.2d 669:

Granting a writ of mandamus to compel the Consolidated Public Retirement Board to transfer certain funds from the public employees retirement system (APERS@) to a newly-created deputy sheriff=s retirement system and to register new members for that system, the Court held that the mere speculative possibility that the transfer of funds to the new system would impair the fiscal solvency of the PERS trust fund does not bar the transfer of assets where legal mechanisms exist that can detect and correct any impaired solvency in a timely fashion. Specifically, the Court held that the fiduciary duty of the Board included an affirmative duty to monitor the effect of legislative actions upon the fund and to take all necessary actions, including initiating court proceedings, to protect the fiscal and actuarial solvency of the funds and assets under its control. The Court also expressed disfavor over statutory Atest cases,@ whereby the enabling legislation includes a command that the legality of a particular statute be tested by judicial review; such statutory judicial review provisions may violate the separation of powers doctrine contained in Article V, Section 1 of the West Virginia Constitution. Courts are not obliged to accept and/or rule in proceedings that arise as a result of such provisions.

State of West Virginia ex rel. West Virginia Regional Jail and Correctional Facility Authority v. West Virginia Investment Management Board, No. 25134 (July 17, 1998)(Maynard, J.)(Davis, C. J., and McCuskey, J., dissenting): 203 W. Va. 413, 508 S.E.2d 130:

Granting the petition for writ of mandamus, whereby the Regional Jail and Correctional Facility Authority, requests an evaluation of the constitutionality of House Bill 4072 (1998), which authorizes the investment of PERS monies in the Authority to enable it to complete construction or renovation of certain jails and correctional facilities in the State, the Court held, inter alia, as follows: [1] HB 4072 (1998) does not substantially impair the contract rights of PERS beneficiaries; [2] syllabus point 2 of State ex rel. Marockie v. Wagoner, 190 W. Va. 467, 438 S.E.2d 810 (1993), which holds the Legislature may not designate funds that will be used to liquidate a revenue bond issue out of a current tax source which flows into the general revenue fund, is overruled to the extent that it prevents the Legislature from exercising its power to prudently invest State or public funds, pursuant to Article X, Section of the West Virginia Constitution; [3] HB 4072 does not violate the limitation on the contracting of State debt in Article X, Section 4 of the West Virginia Constitution; [4] HB 4072 does not implicate the constitutional due process guarantees of PERS beneficiaries as long as the State continues to pay PERS beneficiaries; [5] HB 4072 does not, on its face, mandate the violation of the Investment Management Board=s fiduciary duty to PERS beneficiaries.

Pendleton Citizens for Community Schools, a West Virginia nonprofit corporation, et al. v. Henry Marockie, State Superintendent of Schools, et al. AND Pendleton Citizens for Community Schools, a West Virginia nonprofit corporation, et al. v. Henry Marockie, State Superintendent of Schools, et al., Nos. 25138 and 25139 (July 14, 1998)(Starcher, J.): 203 W. Va. 310, 507 S.E.2d 673:

Reversing the circuit court=s determination that the closing of a high school in Circleville (Pendleton County) violates both statutory law and the constitutional right to education, the Court held, inter alia, as follows: W. Va. Code ' 18-9D-16 (1993) does not prohibit the School Building form exercising discretion in weighing and applying the factors listed in that section, in order to prioritize requests for funding.

Dr. James C. McCoy v. Fred VanKirk, in his official capacity as the Commissioner of the West Virginia Division of Highways, and Rite Aid of West Virginia, Inc., a West Virginia corporation, No. 24019 (December 16, 1997)(Starcher, J.): 201 W. Va. 718, 500 S.E.2d 534:

Reversing and remanding a trial court=s decision holding unconstitutional W.Va. Code ' 17-2A-19 (1994) on the grounds that it violates the equal protection guarantees of the United States and West Virginia Constitutions and that it violates the West Virginia constitutional requirement which states that the object of each act of the legislature must be contained in its title, the Court found that Dr. McCoy, an Aabutting landowner@ has a right of first refusal to purchase the subject property at fair market value. In reaching this decision, the Court held as follows: (1) Under W. Va. Code ' 17-2A-19, an Aabutting landowner@ is an individual who owns real property that boarders on or touches real property being offered for sale by the Commissioner of the Division of Highways. A Aprincipal abutting landowner@ is an individual who owns real property that borders on or touches real property being offered for sale by the Commissioner, and who is also an individual from whom the real property being sold by the Commissioner was acquired or his or her surviving spouse or descendant. (2) Under W. Va. Code ' 17-2A-119, all abutting landowners must receive preferential treatment when the Commissioner chooses to sell state highways property that the Commissioner has determined is not necessary for present or future use. The statute directs that the Commissioner must offer to sell property acquired after 1973 that has not substantially changed since its acquisition to principal abutting landowners at a cost equal to the amount paid in acquiring the real estate, plus costs and interest. The Commissioner may also first offer to sell right-of-way property to principal abutting landowners without following the procedures for a public auction. The Commissioner must offer all other abutting property owners the first right to purchase the highway=s property for fair market value. Holding that consitutional right at issue is, in essence an economic right and, therefore, applying the Arational relationship@ test, the Court determined that the distinction between abutting landowners and the general public is rationally related to a legitimate state purpose and, therefore, does not violate equal protection. Additionally, the Court found that the title of the act was sufficient to apprise any interest party of its nature, thus meeting the constitution requirements. The Court remanded the case for a determination of the fair market value of the property, noting that the price obtained at auction may be considered as evidence of the fair market value of the property; however, the auction value is not its exclusive measure.

West Virginia Trust Fund, Inc., a West Virginia non-stock, non-profit corporation, as Trustee v. Honorable Larrie Bailey, Treasurer of the State of West Virginia and State of West Virginia ex rel. Honorable Darrell V. McGraw, Jr., in his official capacity as the Attorney General of West Virginia v. West Virginia Trust Fund, Inc., a West Virginia corporation; and David Gardner, Chairman, West Virginia Trust Fund, Inc. and Stanley L. Klos v. Honorable Larrie Bailey, Treasurer of West Virginia and State of West Virginia ex rel Stanley Klos v. West Virginia Board of Investments, a body corporate of the State of West Virginia and West Virginia Trust Fund, Inc., a West Virginia corporation, No. 23939 (March 28, 1997)(Starcher, J.): 199 W. Va. 463, 485 S.E.2d 487:

Affirming, in part, and reversing, in part, an order ruling that the West Virginia Trust Fund Act, W. Va. Code, 44-6B-1, et seq., allowing placement of state employee pension funds and the workers= compensation and coal workers= pneumoconiosis funds in an irrevocable trust fund managed by West Virginia Trust Fund, Inc., a non-profit, non-stock corporation for purposes of investing up to sixty percent of such funds in corporate equities, is unconstitutional, the Court held (1) West Virginia Trust Fund, Inc., has a sufficient fiduciary and symbiotic relationship with the State so as to make it subject to the prohibition in W. Va. Const., art., X, sec. 6, against investment of State funds in corporate stocks; and (2) the circuit court erred in ruling that the statute usurps or interferes with the duties and powers of the State Treasurer.

State ex rel. West Virginia Division of Natural Resources; Charles B. Felton, Jr., Director, West Virginia Division of Natural Resources; and James D. Fields, Chief, Law Enforcement Division, West Virginia Division of Natural Resources v. Honorable Danny O. Cline, Judge of the Circuit Court of Braxton County; Shelly L. DeMarino, Prosecuting Attorney for Gilmer County; and Ernest V. Morton, Jr., Prosecuting Attorney for Webster County, No. 23840 (February 20, 1997)(Davis, J.): 200 W. Va. 101, 488 S.E.2d 376:

Granting a writ of prohibition to prevent enforcement of the circuit court=s order dismissing prosecution of a DNR citation charging the carrying a loaded firearm in a motor vehicle, the Court held that the provisions of W. Va. Code, 20-2-5(10)(1994), prohibiting the vehicular transportation of a loaded firearm, do not violate the right to keep and bear arms for lawful purposes enunciated in W. Va. Constitution, Article III, Section 22.

State ex rel. School Building Authority of West Virginia v. Dr. Henry R. Marockie, President, School Building Authority of West Virginia, No. 23675 (December 13, 1996)(Cleckley. J.): 198 W. Va. 424, 481 S.E.2d 730

Moulding a writ of mandamus requested by petitioner to compel respondent to issue refunding bonds to discharge bonds issued prior to this Court=s decision in Winkler v. State School Building Authority, 189 W. Va. 748, 434 S.E.2d 420 (1993), the Court ruled that (1) this Court will entertain mandamus actions to test the legitimacy of a proposed government issue only when this Court=s prior decisions are not adequate to provide proper guidance for meaningful legal evaluation; (2) petitioner may issue bonds to refund pre-Winkler bonds even though they were not specifically mentioned in the Winkler opinion; (3) the school building capital improvements fund is not a special fund which may be used to finance new school construction projects, but it may be used to finance refunding bonds issued to redeem pre-Winkler bonds; (4) petitioner may issue refunding bonds in a principal amount greater than the principal amount of the pre-Winkler bonds to be refunded, but only in the additional amount required to establish and maintain an escrow account for the repayment of those pre-existing bonds not presently due and payable; (5) petitioner may not issue alleged refunding bonds for the redemption of pre-Winkler bonds which have the practical effect of generating cash at closing in order to make immediately available the anticipated debt service savings from such Arefunding@.

State ex rel. the Charleston Building Commission, a public corporation v. Walter B. Dial, Jr., Chairman Pro Tem of the Charleston Building Commission, a public corporation, No. 23582 (December 11, 1996) (Cleckley, J.): 198 W. Va. 185, 479 S.E.2d 695

In granting a writ of mandamus to compel the chairman pro tem of the Commission to execute an agreement to employ a financial advisor and to issue bonds to finance the State=s lease-purchase of a vacant building, the Court held (1) respondent, as chairman pro tem of the Commission, has the same duties and responsibilities as the duly elected chairman of the Commission, including the authority to execute the agreement on behalf of the Commission; (2) under W. Va. Code, 8-12-5 and the city charter, the Commission has the authority to acquire and renovate a building and lease it to the State under a lease-purchase agreement; (3) neither the Commission=s issuance of revenue bonds, certificates of participation or other financial obligations to finance the acquisition and renovation of the building, nor the proposed lease-purchase agreement violates W. Va. Const, art. X, ' 8, prohibiting the municipality from incurring excessive debt; and (4) use of rental payments to retire the bonds issued by the Commission does not violate W. Va. Const, art X, ' 4, prohibiting the State from contracting debt, or W. Va. Const., art. X, ' 6, prohibiting pledging the credit of the State to an individual or public body.

Wheeling Park Comm=n v. Hotel and Restaurant Employees, International Union, et al., No. 23448 (November 18, 1996)(McHugh, C.J.): 198 W. Va. 215, 479 S.E.2d 876

Reversing an injunction restricting leafleting, picketing, and other union organizing activities at Oglebay Park, the Court ruled that while the standard used in evaluating the constitutionality of restrictions in a statute, ordinance, or regulation on content-neutral speech in a public forum under W. Va. Const., art III, ' 7, is whether the time, place, and manner of the restrictions were narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication, the constitutionality of such restrictions in an injunction is tested by a more stringent standard, i.e., whether the restrictions burden no more speech than necessary to serve a significant government interest.

State of West Virginia ex rel. the County Commission of Boone County, a public body corporate of the State of West Virginia v. Ed Cooke, Clerk of the County Commission of Boone County, No. 23375 (July 17, 1996)(McHugh, C.J.): 197 W. Va. 391, 475 S.E.2d 483:

Invalidating the Tax Increment Financing Act [TIFA], W. Va. Code ' 7-11B-1, et seq., which permitted the issuance of Atax increment bonds@ by county commissions and private developers in order to fund infrastructure and other public improvements, such as water projects, to be paid through the application of additional property taxes generated by the increase in property value attendant to the project funded, the Court held (1) tax increment bonds issued pursuant to the TIFA, would create a Adebt@ within the meaning of W. Va. Const. art. X, ' 8, and (2) because the TIFA does not provide for Athe collection of a direct annual tax on all taxable property . . . separate and apart from and in addition to all other taxes for all other purposes@ in accordance with W. Va. Const. art. X, ' 8, in order to pay the principal and interest on tax increment bonds issued, it is unconstitutional.

State of West Virginia ex rel. Thornton Cooper v. Honorable Gaston Caperton, Governor of the State of West Virginia, et al., No. 23059 (February 29, 1996)(Cleckley, J.): 196 W. Va. 208, 470 S.E.2d 162:

Affirming a judgment validating a constitutional amendment despite the Secretary of State=s failure to publish its text in accordance with relevant constitutional and statutory provisions mandating such publication where a summary of the amendment was published, the Court held that (1) ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, are reviewed de novo; (2) the sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law; (3) to preserve an issue for appeal, a party must articulate it with sufficient clarity to alert the trial court of the nature of the claimed defect; (4) the purposes of the requirements regarding proposed constitutional amendments contained in W. Va. Const. art. XIV, ' 2 are (i) to ensure, through the endorsement of a legislative supermajority and the support of a majority of those voting in a statewide referendum, that constitutional amendments reflect a true and broad-based political consensus and (ii) to guarantee such a referendum may be held only after the legislature has taken steps to inform the electorate fully and accurately about the proposed amendment; (5) no amendment to the West Virginia Constitution is valid unless (i) a duly-recorded concurrence of two-thirds of the members of each house is obtained, (ii) the proposed amendment is submitted to the electorate, (iii) the amendment is ratified by a majority of those voting in a statewide referendum, (iv) the people are informed about the proposed amendment in substantial compliance with the directives of W. Va. Const. art. XIV, ' 2 and in a manner sufficient to permit the voters to make up their minds, and (v) the absence of evidence that the State=s voter education efforts misled or confused voters if strict compliance with W. Va. Const. art. XIV, ' 2, did not occur; (6) when the State fails to publish the full text of a proposed amendment in a newspaper in every county but instead publishes a summary of the amendment, the results of the referendum will not be set aside if (i) the summary fully, fairly, and accurately describes the amendment, (ii) the summary is, in fact, more understandable than the actual text of the amendment, (iii) the summary was adopted by the Legislature, (iv) there was no probable evidence that the summary misled the voters or reasonably could be read to have had a misleading effect, and (v) there was no probative evidence that publication of the full text of the amendment would have made any difference in the outcome of the referendum; and (7) any departures from W. Va. Const. art. XIV, ' 2 will be strictly reviewed.

In re: Application of Teresa Jane Dailey for State License to Carry a Concealed, Deadly Weapon, No. 22964 (November 16, 1995)(Recht, J.): 195 W. Va. 330, 465 S.E.2d 601:

Invalidating the delegation to circuit courts of licensing authority for concealed weapons permits, the Court held (1) pursuant to W. Va. Const. art. V, ' 1, the legislature cannot commit to the judiciary powers which are primarily legislative; (2) the regulation and control of dangerous and deadly weapons is an exercise of police power within the province of the legislative branch; (3) W. Va. Code ' 61-7-4 confers an insufficient amount of judicial discretion with regard to the issuance of concealed weapons permits to avoid conflict with W. Va. Const. art. V, ' 1, which provides, AThe legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others;@ and (4) its invalidation of this provision is to have only prospective application.

State of West Virginia ex rel. Laura Meadows and Danny Martin v. Ken Hechler, Secretary of State of West Virginia; Earl Ray Tomblin, President of the Senate of West Virginia; and Robert C. Chambers, Speaker of the House of Delegates of West Virginia, No. 22875 (July 19, 1995)(Workman, J.): 195 W. Va. 11, 462 S.E.2d 586:

Invalidating W. Va. Code ' 29A-3-12(b), which permitted legislative veto of proposed administrative regulations where, despite federal statute and federal court order, the Legislature failed to approve or reject proposed nursing home regulations, the Court held such statute to violate W. Va. Const. art. V, ' 1, by impermissibly encroaching upon the executive branch's obligation to enforce the law.

State of West Virginia ex rel. Glen B. Gainer, III, Auditor of the State of West Virginia v. West Virginia Board of Investments, No. 22574 (May 31, 1995)(Workman, J.): 194 W. Va. 143, 459 S.E.2d 531:

Disallowing the investment of public employee pension funds in corporate securities, the Court held that (1) until public employee pension funds are paid as benefits, the State has a beneficial ownership interest arising from a statutory trust relationship and (2) W. Va. Code ' 12-6-9(j), granting authority to the consolidated public employees retirement system board to invest in corporate stock, is violative of W. Va. Const. art. X, ' 6, which prohibits the State from becoming a "stockholder in any company or association."

State of West Virginia ex rel. West Virginia State Board of Education v. Glen B. Gainer, III, State Auditor, and Larrie Bailey, State Treasurer, in their official capacities, No. 22549 (December 21, 1994)(Cleckley, J.) 192 W. Va. 417, 452 S.E.2d 733:

Robert Carl Crain, et al. v. Donald E. Bordenkircher, Warden, et al., No. 16646 (December 15, 1994)(Workman, J.): 193 W. Va. 63, 454 S.E.2d 108:

State of West Virginia ex rel. James Lawrence, Commissioner of the West Virginia Division of Tourism and Parks v. Chuck Polan, Cabinet Secretary, Department of Administration, No. 22590 (December 12, 1994)(Miller, J.): 192 W. Va. 629, 453 S.E.2d 612:

Rejecting a proposal for issuing bonds to fund improvements at Stonewall Jackson State Park, the Court held that although W. Va. Code ' 5B-1-13b authorizes the commissioner of tourism and parks to issue revenue bonds which are to be liquidated from a special fund derived from revenues from park recreational facilities, such bonds violate W. Va. Const. art. X, ' 4, where the facilities operate at a net deficit and only the use of general revenue funds will permit liquidation of the bonds.

State of West Virginia ex rel. Darrell E. Holmes, Clerk of the Senate of West Virginia, and Donald L. Kopp, Clerk of the House of Delegates of West Virginia v. Glen B. Gainer, III, Auditor of the State of West Virginia, et al., No. 22226 (July 20, 1994)(Miller, J.): 191 W. Va. 686, 447 S.E.2d 887:

Upholding a legislative pay raise despite procedural irregularities, the Court held that although W. Va. Const. art. VI, ' 33 precludes the Citizens Legislative Compensation Commission from submitting its resolution on compensation and allowances to the Legislature except on an quadrennial basis beginning with the 1971 legislative session, based upon general principles of retroactivity, such holding does not invalidate the legislative compensation and allowances provisions contained in House Bill 4031.

State ex rel. Clarksburg Municipal Building Commission and the City Council of the City of Clarksburg v. David E. Spelsberg, Secretary of the Clarksburg Municipal Building Commission, No. 22312 (July 18, 1994) (Neely, J.): 191 W. Va. 553, 447 S.E.2d 16:

Approving plans for a city to construct a new municipal building using revenue bonds payable from rents paid by the city to its building commission, the Court held that W. Va. Const. art. X, ' 8 does not prohibit a municipal building commission from issuing revenue bonds that are payable from rents from the municipality, when the contract is for a term of thirty years, permitting periodic payment as services are furnished, with nonbinding cancellation clauses such that there is no present indebtedness for the aggregate of all installments, and the contract can be terminated at the end of any fiscal year if the municipality decides not to appropriate funds.

State of West Virginia ex rel. Richard A. Robb, Chairman, Kanawha County Republican Executive Committee v. Honorable W. Gaston Caperton, III, Governor, State of West Virginia, No. 22310 (July 8, 1994)(Miller, J.): 191 W. Va. 492, 446 S.E.2d 714:

Rejecting an attempt to compel an election to fill a circuit judge vacancy which occurred after the primary, the Court held that because a specific constitutional provision will be given precedence over a general constitutional provision relating to the same subject matter where the two cannot be reconciled, W. Va. Const. art. VIII, ' 7, relating to the manner of filling a vacancy in the office of justice of the supreme court of appeals or judge of a circuit court takes precedence over the more general provision of W. Va. Const. art. IV, '' 7 and 8, relating to the manner of filling vacancies in state and county offices.

Putnam County Fire Service Board, Inc. v. Jack Kelly and Josephine Kelly, et al., No. 22044 (July 8, 1994)(Workman, J.): 192 W. Va. 37, 449 S.E.2d 508:

Where approximately 5,000 voters signed referendum petition, about 500 less than were required, within 15 days after expiration of publication of an ordinance adopting a county fire service fee, the Court nevertheless upheld the validity of the fee, holding that W. Va. Code ' 7-17-12, which provided that such petitions be filed within 15 days, but which was later amended to extend such time to 45 days, was constitutional.

State of West Virginia ex rel. Henry R. Marockie, State Superintendent of Schools and President of the West Virginia School Building Authority v. Charles H. Wagoner, Secretary of the West Virginia School Building Authority, No. 22214 (June 15, 1994) (McHugh, J.): 191 W. Va. 458, 446 S.E.2d 680:

In the final installment of a trilogy of cases, the Court approved the use of lottery revenues to retire bonds issued to construct school buildings, holding that the school building debt service fund, described in W. Va. Code ' 29-22-18, as consisting of monies allocated from the net profits of the lottery, may be used to liquidate the School Building Authority's revenue bonds without violating W. Va. Const. art. X, ' 4, because the monies are a new revenue source not treated as part of the general revenue of the State.

Darrell V. McGraw, Jr., in his official capacity as Attorney General of West Virginia v. Honorable Gaston Caperton, in his official capacity as Governor of the State of West Virginia, et al., No. 22011 (May 19, 1994)(Brotherton, C.J.): 191 W. Va. 528, 446 S.E.2d 921:

In a case involving the legality of a contract for the purchase of computers and technical support for the State's school system, the Court held that a one-year contract with a multi-year, no-bid, non-binding renewal option at the State's discretion, does not violate W. Va. Const. art. X, ' 4 or W. Va. Code ' 12-3-17.

State of West Virginia ex rel. Council of the City of Charleston; Linda Nielson; and West Virginia Waste Services, Inc. v. Kent Strange Hall, as Mayor of the City of Charleston, No. 22067 (February 18, 1994) (McHugh, J.): 190 W. Va. 665, 441 S.E.2d 386:

Affirming a city's long-term plan for operation of its landfill by a private company, the Court held that (1) W. Va. Const. art. X, ' 8 does not preclude a contract for a term of 25 years whereby a city is obligated to pay a fee for solid waste disposal when that fee comes from a special fund collected by the city for such solid waste disposal, and (2) an agreement which gives a city the option to purchase improvements made to its solid waste facility at certain years of the agreement or when the city decides to prematurely terminate the agreement does not violate W. Va. Const. art. X, ' 8 or W. Va. Code ' 11-8-26, because the city has the sole discretion to determine whether it will purchase the improvements.

Women's Health Center of West Virginia, Inc., et al. v. Ruth Ann Panepinto, Ph.D., Secretary, West Virginia Department of Health and Human Resources, et al., Nos. 21924, 21925 and 21926 (December 17, 1993) (Workman, C.J.): 191 W. Va. 436, 446 S.E.2d 658:

State of West Virginia ex rel. Henry R. Marockie, as State Superintendent of Schools and as President of the School Building Authority of the State of West Virginia v. Charles H. Wagoner, as Secretary of the School Building Authority of the State of West Virginia; William S.E. Winkler and Diane Hinkle, Intervenors, No. 21952 (December 13, 1993)(Miller, J.): 190 W. Va. 467, 438 S.E.2d 810:

Rejecting a legislative scheme to dedicate a portion of the sales tax to retire bonds to fund the building of schools, the Court held (1) the legislature may not designate funds that will be used to liquidate a revenue bond issue from a tax source that flows into the general revenue fund without violating W. Va. Const. art. X, ' 4; (2) if the legislature creates a new tax source or increases the amount to be paid on an existing tax account, this new or increase amount may be used to liquidate revenue bonds without violating W. Va. Const. art. X, ' 4; (3) the legislature may use an existing special revenue source to liquidate revenue bonds without violating W. Va. Const. art. X, '4, as long as such source has not traditionally been directed into the general revenue fund; (4) because, under the newest scheme, school building bonds were to be liquidated with a portion of existing general revenue, new debt was created in violation of W. Va. Const. art. X, ' 4; and (5) W. Va. Const. art. X, ' 6a applies only to counties, municipalities, or other political subdivisions, not to the state or its agencies.

State of West Virginia ex rel. Fahlgren Martin, Inc. v. Darrell V. McGraw, Jr., Attorney General of the State of West Virginia; Chuck Polan, Secretary of the Department of Administration of the State of West Virginia; and Ron Riley, Director of the Purchasing Division of the Department of Administration of the State of West Virginia, No. 21820 (November 23, 1993)(Brotherton, J.): 190 W. Va. 306, 438 S.E.2d 338:

Delineating the scope of the Attorney General's authority to review state contracts, the Court held (1) W. Va. Code ' a-3-13 grants the attorney general power to approve certain contracts only "as to form;" (2) if a contract is legal, the attorney general must approve the contract, regardless of any personal misgivings, but may communicate his or her concerns to the division of purchasing; (3) the attorney general may not postpone approval of a contract pending a trial, investigation, or other proceeding; (4) the attorney general has no investigative powers in connection with his or her review of a contract; and (5) the term "form" as used in W. Va. Code ' a-3-13 does not include any matters extrinsic to the written contract, but means only the legality of all matters contained therein as it relates to the constitution, statutes, and the law of contract.

State of West Virginia ex rel. Mountaineer Park, Inc., a West Virginia corporation v. Charles Polan, Secretary of the Department of Administration, et al., AND State of West Virginia ex rel. West Virginia State Lottery Commission v. Charles Polan, Secretary of the Department of Administration, et al., Nos. 21767 and 21768 (October 28, 1993)(McHugh, J.): 190 W. Va. 276, 438 S.E.2d 308:

Invalidating agency approval of video lottery terminals at a horse track, the Court held (1) only lottery operations which are regulated, controlled, owned and operated in the manner provided by general laws enacted by the West Virginia Legislature may be properly conducted in accordance with the exception to the general prohibition against lotteries in W. Va. Const. art. VI, ' 36; (2) delegation of legislative authority to an executive agency is constitutional only if adequate statutory guidance is given by the legislature to the agency; and (3) a general delegation of authority to the lottery commission authorizing "electronic video lottery systems" was inadequate to permit the promulgation of lottery rules and regulations permitting the installation of video lottery terminals at the horse track.

William S.E. Winkler and Diane Hinkle v. State of West Virginia School Building Authority, and United National Bank, as Trustee, et al., No. 21829 (July 22, 1993)(Miller, J.): 189 W. Va. 748, 434 S.E.2d 420:

Prohibiting the future issuance of bonds by the school building authority as violative of W. Va. Const. art. X, ' 4, which provides, "No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion or defend the State in time of war," the Court held (1) questions of constitutional construction are generally governed by the same principles as for statutory construction; (2) bonds issued after the election procedures contained in W. Va. Const. art. XIV, ' 2, override the specific limitations of W. Va. Const. art. X, '' 4 and 6; (3) W. Va. Const. art. X, ' 4 restricts the creation of long-term debt by the State through revenue bonds or other obligations; (4) W. Va. Const. art. X, ' 6 restricts the State from granting credit to political subdivisions and from granting credit or assuming liabilities for debts of private entities; (5) W. Va. Const. art. X, ' 4 does not prohibit the State from issue revenue bonds that are to be liquidated pursuant to contracts requiring rental payments from another state agency, contracts requiring payment for necessary services like utilities, or dedicated revenue placed in a special fund; (6) based upon settled principles of retroactivity, the declaration of unconstitutionality of the scheme devised for school construction would be prospective only; and (7) because refunding or refinancing of existing bonds does not create new debt, such refunding or refinancing would not be prohibited by the ruling of unconstitutionality of the primary scheme.

State of West Virginia ex rel. Cindy Walls v. Patricia Noland, as a Magistrate of Jefferson County, and Michael D. Thompson, as Prosecuting Attorney, No. 21495 (July 16, 1993) (Brotherton, J.): 189 W. Va. 603, 433 S.E.2d 541:

Upholding the constitutionality of the worthless check statute, the Court held that the statutory complaint form contained in W. Va. Code ' 61-3-39f is constitutionally sufficient because it requires a detailed itemization of the relevant facts and provides a sufficient basis for an independent determination of whether there is probable cause to proceed with a prosecution.

Richard Lee Kincaid and Aaron Bolen, on Behalf of Themselves and All Others Similarly Situated v. R. Michael Mangum, Sheriff of Raleigh County, et al., No. 21505 (June 10, 1993)(McHugh, J.): 189 W. Va. 404, 432 S.E.2d 74:

In a case challenging the constitutionality of jail standards which had been approved by the legislature through the use of an omnibus bill which included 44 sets of various agency rules, the Court held that unless there is a reasonable basis for grouping various matters in a single bill, and such grouping will not lead to logrolling or other deceptive consequences, the "one-object" rule of W. Va. Const. art. VI, ' 30, prohibits the practice of grouping different matters in one bill. In deciding to make its ruling prospective only, however, the Court further held that when it issues an interpretation of the West Virginia Constitution that was not clearly foreshadowed, and when retroactive application would excessively burden governmental functions, the new interpretation will apply prospectively.

Contractors Association of West Virginia, a West Virginia corporation, and the Flexible Pavements Council of West Virginia, an unincorporated association v. West Virginia Department of Public Safety, Division of Public Safety, et al., No. 21519 (March 25, 1993)(McHugh, J.): 189 W. Va. 685, 434 S.E.2d 357:

Rejecting, in part, a constitutional challenge to the transfer of highway funds to the state police based upon W. Va. Const. art. VI, ' 52, which provides that certain funds may be spent only for the cost of "administration and collection" of the funds and the cost of "construction, reconstruction, repair or maintenance of public highways," the Court held that the term "maintenance" includes programs directly related to highway safety, such as road patrol, traffic control, traffic court, motorcycle safety, and motorcycle licensing, but does not include programs not directly related to highway safety, such as the construction, operation, and maintenance of state police barracks.

E.H., et al. v. Matin, et al., No. 21467 (February 25, 1993)(Miller, J.): 189 W. Va. 102, 428 S.E.2d 523:

Jarrett Printing Company v. Ronald Riley, as Director of the Purchasing Division of the Department of Administration of the State of West Virginia; Gaston Caperton, as Governor of West Virginia; and BJW Printing and Office Supplies, No. 21477 (December 9, 1992)(Neely, J.): 188 W. Va. 393, 424 S.E.2d 738:

Applying W. Va. Const. art. VI, ' 34, which provides that no legislator "shall be interested, directly or indirectly, in [the legislative printing] contract," the Court held that (1) the plain and unambiguous meaning of this constitutional provision is to prohibit a legislator from having "any interest" in a legislative printing contract; (2) a special relationship exists between husband and wife creating a mutual interest in the contracts of each; and (3) the award of a legislative printing contract to the spouse of a legislator would violate W. Va. Const. art. VI, ' 34.

David Johnson and Christinena Johnson v. Honorable Callie Tsapis, Judge of the Circuit Court of Brooke County, and David B. Cross, Prosecuting Attorney for Brooke County, No. 20477 (December 19, 1991)(Miller, C.J.): 186 W. Va. 642, 413 S.E.2d 699:

Where West Virginia employer hired Ohio private detective to investigate allegations of employee drug use, the Court affirmed the circuit court's decision that W. Va. Code ' 61-6-11, which prohibits any person "not a bona fide resident of this State" from conducting criminal or quasi-criminal investigations, violates the Privileges and Immunities Clause of Article IV, Section 2 of the United States Constitution.

State ex rel. Ira Dadisman, et al. v. W. Gaston Caperton, as Governor, et al., No. 20419 (December 17, 1991)(McHugh, J.): 186 W. Va. 627, 413 S.E.2d 684:

Where the public employees' retirement system was determined to be actuarially sound, despite past underfunding, the Court held that appropriations to correct such past underfunding were not mandated by its previous decision in Dadisman v. Moore, 181 W. Va. 779, 384 S.E.2d 816 (1989), and further that a 1990 amendment to W. Va. Code ' 5-10-28, which eliminated the divisions between state and public employer accounts, did not constitute an unconstitutional impairment of contract.

Cleve Benedict, et al. v. Charles M. Polan, et al., No. 20116 (December 13, 1991)(Workman, J.): 186 W. Va. 452, 413 S.E.2d 107:

Invalidating the attempted legislative transfer by supplemental appropriation of special revenue account funds to the Division of Human Services, the Court held that (1) the legislature may not amend or contradict substantive statutes through passage of a supplemental appropriations bill, and (2) W. Va. Code ' 12-2-2(j) prohibits the transfer of funds for purposes other than those expressly provided relative to special revenue accounts.

Common Cause of W. Va., et al. v. Earl Ray Tomblin, et al., No. 20325 (December 9, 1991) (Neely, J.): 186 W. Va. 537, 413 S.E.2d 358:

In a constitutional challenge to the process for adoption of the legislative budget digest, the Court held (1) because the digest does not have the force and effect of law, W. Va. Code ' 4-1-18, which directs its preparation by the conferees committee on the budget, is not an unconstitutional delegation of power by the legislature; (2) despite lacking the force and effect of law, because of its practical importance to governmental operations, the process for adoption of the budget digest must observe certain requirements, including approval by the entire conferees committee on the budget at a regularly scheduled public meeting; and (3) the finance committees, their chairpersons, or the subcommittee chairpersons must record, by appropriate means, the discussions, negotiations, compromises, agreements, and votes taken in pursuit of the budget digest.

Daniel Lewis and Sonja Lewis v. Canaan Valley Resorts, Inc., a corporation, No. 19780 (July 19, 1991)(McHugh, J.): 185 W. Va. 684, 408 S.E.2d 634:

In a case upholding the constitutionality of the West Virginia Ski Responsibility Act, W. Va. Code ' 20-3A-1, et seq., the Court adopted a new principle of statutory construction, holding that if legislation impairs the adjudication of vested rights or availability of judicial remedies, the legislation will nevertheless withstand constitutional scrutiny if (1) a reasonably effective alternative remedy is provided, or (2) the purpose of the legislation is to "eliminate or curtail a clear social or economic problem" and is a "reasonable method of achieving such purpose."

Janet L. Gibson and Carol Holcomb v. West Virginia Department of Highways, an agency of the State of West Virginia, and William S. Ritchie, Jr., West Virginia Commissioner of Highways and his Successor as such, No. 19712 (May 24, 1991)(Miller, C.J.): 185 W. Va. 214, 406 S.E.2d 440:

Despite rejecting a constitutional challenge to W. Va. Code ' 55-2-6a, which limits to ten years the time within which a suit may be filed for deficiencies in the planning, design, or construction of an improvement to real property, the Court held that although there is a presumption of constitutionality with regard to legislation, with special deference accorded matters of economic legislation, when a legislative enactment either substantially impairs vested rights or severely limits existing procedural remedies permitting judicial adjudication of disputes, the certain remedy provision of W. Va. Const. art. III, ' 17 is implicated.

Orville Arnold and Maxine Arnold v. United Companies Lending Corporation, a corporation, and Michael T. Searls, an individual, No. 25053 (December 14, 1998) (McCuskey, J.)(McGraw, J., not participating): ___ W. Va. ___, 511 S.E.2d 854:

Answering certified questions, the Court addressed issues regarding the validity of an arbitration agreement in the context of a consumer loan and the duties of loan brokers to prospective borrowers. The Court=s reformulated questions and the answers were: (1) AWhether an arbitration agreement entered into as part of a consumer loan transaction containing a substantial waiver of the consumer=s rights, including access to the courts, while preserving for all practical purposes the lender=s right to a judicial forum, is void as a matter of law.@ The Court found that under the circumstances of the case, the agreement which bound the consumer to relinquish his or her right of access to the courts as well as many substantive rights, while the lender retains the right to a judicial forum for purposes of collection and foreclosure proceedings, deficiency judgments, and other procedures, was unconscionable and therefore void and unenforceable as a matter of law; (2) AWhether a loan broker owes a fiduciary duty to prospective borrowers: (a) to provide a written contract containing a description of the services to be performed; (b) to give them an opportunity to consider and cancel the agreement; (c) to inform them of the costs of the broker=s services; and (d) to disclose the loan options and risks available to them.@ The Court answered subparts a, b and c in the affirmative based upon the West Virginia Consumer Credit and Protection Act, W. Va. Code ' 46A-6C-1 et seq. As to subpart d, the Court found that if a loan broker is acting as a broker in the strictest sense, the duty of disclosure exists. However, if a loan broker acts as a mere middleman, the law imposes no duty of disclosure.

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Pawn America, a West Virginia business and State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Pawn America, a West Virginia business, Lisa Funk, individually, and Brent Jackson, individually, Pawn America, a West Virginia business, No. 24632 (July 17, 1998)(McCuskey, J.,) (Starcher, J., concurring): ___ W. Va. ___, 511 S.E.2d 854:

Affirming the lower court=s determination that the Attorney General has the authority to investigate Pawn America to determine whether it has engaged in acts which violate the West Virginia Consumer Credit and Protection Act, the Court held: licensed pawnbrokers are excluded from the coverage of the West Virginia Consumer Credit and Protection Act insofar as they engage in true pawn transactions that are within the scope of a valid pawnbroker=s license. However, this exclusion is not applicable to activities which are not true pawns and are beyond the scope of such license and, thus, ultra vires.

State of West Virginia by and through Darrell V. McGraw, Jr., Attorney General v. Imperial Marketing, et al., and Suarez Corporation Industries, No. 22809 (March 20, 1996)(Recht, J.): 196 W. Va. 346, 472 S.E.2d 792:

Affirming a preliminary injunction restricting the manner and method by which a direct mail marketer may solicit customers in West Virginia, the Court held (1) on appeals from the award of a preliminary injunction, findings of fact will be reviewed under a clearly erroneous standard, conclusions of law will be reviewed under a de novo standard, and the application of the facts to the law and the decision regarding issuance of the preliminary injunction will be reviewed under an abuse of discretion standard; (2) under W. Va. Code ' 46A-7-110, the Consumer Credit and Protection Act, and W. Va. Code ' 46A-6D-1 to -10, the Prizes and Gifts Act, a preliminary injunction may be issued if the Attorney General has demonstrated by credible evidence that reasonable cause exists to believe the respondent is engaging in or is likely to engage in conduct sought to be restrained; (3) findings of Amaterial misrepresentation@ or Aactually misleading@ are unnecessary for the issuance of a preliminary injunction under the Consumer Credit and Protection Act, rather such injunction may issue based upon any misrepresentation of fact that materially induced a purchaser=s decision to buy; and (4) the legislature is accorded considerable deference in restricting and regulating solicitations which are or may be deceiving or misleading even to the extent of permitting prior restraints upon deceptive solicitation.

State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General v. Scott Runyan Pontiac-Buick, Inc., et al., No. 22728 (July 19, 1995)(Cleckley, J.): 194 W. Va. 770, 461 S.E.2d 516:

Reversing an order holding the attorney general was without authority to seek relief in behalf of consumers under the Consumer Credit and Protection Act against automobile financing companies after a dealer improperly failed to remit extended warranty premiums, which passed through the financing companies, to the warranty company, the Court held that (1) the attorney general has the right to bring a civil action against an assignee to collect a refund of an excess charge imposed upon a consumer regardless of whether the assignee committed any wrong; (2) the issue of wrongdoing is only relevant under W. Va. Code ' 46A-7-111(1), where civil penalties are sought against the assignee; and (3) if an assignee can establish an unintentional violation on the part of the wrongdoer, a penalty may not be imposed under W. Va. Code ' 46A-7-111(1).

Chrysler Credit Corporation v. James E. Copley and Cynthia R. Copley, No. 21235 (February 18, 1993)(Miller, J.): 189 W. Va. 90, 428 S.E.2d 313:

Where consumers sought to counterclaim against finance company under lemon law, the Court held (1) the applicable time period for filing a "lemon law" action under W. Va. Code ' 46A-6A-4 is "within one year of the expiration of the express warranty term;" (2) a consumer can assert a defective product claim as a defense in a collection action pursuant to W. Va. Code ' 46A-2-102, et seq.; and (3) such counterclaim can be asserted without regarding to any statute of limitations.

One Valley Bank of Oak Hill, Inc., a corporation v. Robert T. Bolen, Sr., and Judith G. Bolen, his wife, No. 21266 (December 16, 1992)(Neely, J.): 188 W. Va. 687, 425 S.E.2d 829:

Where car buyers counterclaimed against assignee of credit agreement on the ground that dealership misrepresented a rental vehicle as a factory car, the Court held (1) when a note is created as the result of a consumer transaction, an assignee of such note, pursuant to W. Va. Code ' 46A-2-102, takes the note subject to all claims and defenses, regardless of whether the assignee is a holder in due course; (2) a consumer is allowed to recover, pursuant to W. Va. Code ' 46A-2-102(5), an amount not to exceed the amount owing to the assignee at the time of such assignment, plus any additional damages recoverable pursuant to W. Va. Code ' 46A-5-101 for illegal, fraudulent, or unconscionable conduct; and (3) punitive damages are not available under the fraud or unconscionable conduct provisions of W. Va. Code ' 46A-2-121.

Fernando Casillas and Mireille Casillas v. Tuscarora Land Company and First National Bank of Greencastle, No. 19986 (December 19, 1991)(Brotherton, J.): 186 W. Va. 391, 412 S.E.2d 792:

Reversing a decision that the Consumer Credit and Protection Act, W. Va. Code ' 46A-1-101, et seq., barred suit against a bank for alleged misrepresentations regarding whether resort property, whose purchase was financed by the bank, was subject to flooding, the Court held (1) a common law action may be maintained against a lender, assignee, or holder where direct allegations of fraud or negligence exist apart from the provisions of the Consumer Credit and Protection Act; (2) under a common law action for fraud or negligence, the defenses under the Consumer Credit and Protection Act are not available to either party; and (3) the Consumer Credit and Protection Act does not immunize lenders, assignees, or holders from liability for common law actions for fraud or negligence.

Billy J. Jones and Sandra L. Jones v. The Credit Bureau of Huntington, Inc., No. 19479 (November 13, 1990)(McHugh, J.): 184 W. Va. 112, 399 S.E.2d 694:

Affirming a verdict of $4,000 in compensatory damages and $42,500 in punitive damages against a credit bureau that had erroneously reported that a $20,000 judgment had been entered against the plaintiffs, the Court held that (1) under the Federal Credit Reporting Act, 15 U.S.C. '' 1681 to 1681t, the plaintiff need only prove actual damages, which may consist of humiliation, emotional distress, reputational harm, and injury to the plaintiff's credit rating, sustained as the result of a willful or negligent failure to comply with such Act; and, (2) punitive damages recoverable under the Federal Credit Reporting Act need not bear a reasonable relationship to compensatory damages, but may be related to (i) the remedial purpose of the Act, (ii) the harm to the consumer intended to be avoided or corrected by the Act, (iii) the manner in which the consumer reporting agency conducted its business, and (iv) the consumer reporting agency's income and net worth.

State of West Virginia ex rel. John Zirkle v. Honorable Fred L. Fox, II, Judge of the Circuit Court of Marion County, and the City of Fairmont, a municipal corporation, No. 25192 (December 9, 1998)(Workman, J.,) (Starcher, J., dissenting)(McCuskey, J., participating) (McGraw, J., not participating): 203 W. Va. 668, 510 S.E.2d 502:

The petitioners sought a writ of prohibition preventing the enforcement of a lower court order directing that the petitioner be incarcerated for civil contempt of court. The Court denied the requested writ. The Court held that Awhere a contemnor alleges financial inability to pay in a civil contempt proceeding, he bears the burden of proving such inability to comply with a court mandate in order to avoid imprisonment.@

State Farm Mutual Automobile Insurance Company v. Honorable Booker T. Stephens, Judge of the Circuit Court of McDowell County, Donald Ray Perkins, and Sheila D. Perkins, No. 21368 (December 16, 1992)(Miller, J.): 188 W. Va. 622, 425 S.E.2d 577:

Karen L. Potesta; Cynthia P. Keane, dba C&K Associates, a general partnership; and Bossio Enterprises, Inc., a corporation v. United States Fidelity & Guaranty Company, a corporation AND Karen L. Potesta; Cynthia P. Keane, dba C&K Associates, a general partnership; and Bossio Enterprises, Inc., a corporation v. United States Fidelity & Guaranty Company, a corporation, No. 24441 (May 15, 1998)(Davis, C.J.)(Maynard, J., dissenting)(Workman, J., disqualified): 202 W. Va. 308, 504 S.E.2d 135:

Answering questions certified by the United States Court of Appeals for the Fourth Circuit and distinguishing between the doctrines of waiver and estoppel, the Court held as follows: [1] There is no requirement that an insured have detrimentally relied upon an insurer=s previously stated reasons(s) for denying coverage in order to assert waiver to prevent the insurer, in subsequent litigation, from asserting other, previously unarticulated reasons for denying coverage. Rather, the insured must show by clear and convincing evidence where waiver is implied, that the insurer intentionally and knowingly waived the previously unarticulated reason(s) for denying coverage; [2] In order to rely on the doctrine of estoppel to prevent an insurer, who has previously stated one or more reasons for denying coverage, from asserting other, previously unarticulated reasons for denying coverage, the insured must prove that s/he was induced to act or to refrain form acting to her/his detriment because of her/his reasonable reliance on the previously stated grounds(s) for declination; [3] Generally, the principles of waiver and estoppel are inoperable to extend insurance coverage beyond the terms of an insurance contract; [4] While implied waiver may be employed to prohibit an insurer, who has previously denied coverage on specific ground(s), from subsequently asserting a technical ground for declination of coverages, implied waiver may not be utilized to prohibit the insurer=s subsequent denial based on the nonexistence of coverage; [5] Exceptions to the general rule that the doctrine of estoppel may not be used to extend insurance coverage beyond the terms of an insurance contract, include, but are not necessarily limited to, instances where an insured has been prejudiced because: (1) a misrepresentation, made at the policy=s inception by either the insurer or its agent, has resulted in the insured being prohibited from procuring the coverage s/he desired; (2) an insurer has represented the insured without a reservation of rights; and (3) the insurer has acted in bad faith.

Charles A. Porter v. Michael Kenneth McPherson, No. 23309 (November 15, 1996) (Workman, J.): 198 W. Va. 158, 479 S.E.2d 668:

Reversing a ruling that because plaintiff was not fully compensated by a settlement with the defendant tortfeasor, under Kittle v. Icard, 185 W. Va. 126, 405 S.E.2d 456 (1991), a medical provider=s claims for the cost of medical services provided plaintiff were extinguished, the Court held that the medical provider=s claim was not for subrogation, dependent upon the plaintiff=s ability to obtain a recovery for medical expenses from a tortfeasor, as in Kittle; instead the claim arose from a contract with the plaintiff to reimburse the provider for medical services rendered, placing the plaintiff and the provider in a debtor-creditor relationship, and such claim cannot be extinguished or barred by the doctrine of subrogation. The Court also held that the circuit court=s finding that the provider had not proven that plaintiff=s medical care and treatment were reasonable or necessary or proximately caused by the accident giving rise to the tort action did not preclude the provider from bringing a separate action to enforce its contract rights against plaintiff.

Fraternal Order of Police, Lodge Number 69, and Thomas L. Hartley v. The City of Fairmont and Edwin Thorne, as City Manager, No. 22905 (February 14, 1996)(Cleckley, J.): 196 W. Va. 97, 468 S.E.2d 712:

Reversing a trial court=s failure to grant summary judgment for the plaintiffs in a case involving interpretation of the phrase Aper year@ in a two-year collective bargaining agreement that provided for a A4% per year wage increase,@ the Court held that the phrase Aper year@ in a contract is equivalent to the word Aannually.@

Barn-Chestnut, Inc. v. CFM Development Corporation, No. 22474 (April 14, 1995)(Workman, J.): 193 W. Va. 565, 457 S.E.2d 502:

The Wheeling Clinic, a partnership v. Byron L. Van Pelt, No. 22309 (December 9, 1994) (McHugh, J.): 192 W. Va. 620, 453 S.E.2d 603:

Deanna Lynn Haymaker, Individually, and as Administratrix of the Estate of Kevin D. Haymaker and David Michael Matheny v. General Tire, Inc., an Ohio Corporation, and Turnpike Ford, Inc., No. 20100 (July 23, 1992)(McHugh, C.J.): 187 W. Va. 532, 420 S.E.2d 292:

John D. Stump & Associates, Inc., and John D. Stump v. Cunningham Memorial Park, Inc., Smith Company, William E. Smith, D. Ray Smith, and William E. Rowe, No. 20208 (May 29, 1992)(Miller, J.): 187 W. Va. 438, 419 S.E.2d 699:

Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, et al., and Gallia Refrigeration, Inc., aka Pasquale Electric Company, an Ohio Corporation v. The Travellers Insurance Company, a Connecticut Corporation, et al., No. 19940 (December 19, 1991)(Miller, C.J.): 186 W. Va. 501, 413 S.E.2d 156:

Desco Corporation, dba Colliers Industries v. Harry W. Trushel Construction Company and Fire Foe Corporation v. Industrial Risk Insurers, No. 19993 (December 6, 1991)(Miller, C.J.): 186 W. Va. 430, 413 S.E.2d 85:

Art's Flower Shop, Inc. v. The Chesapeake and Potomac Telephone Company of West Virginia, Inc., and the Reuben H. Donnelly Corporation, No. 20085 (December 5, 1991) (Brotherton, J.): 186 W. Va. 613, 413 S.E.2d 670:

Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (November 22, 1991)(Miller, C.J.): 186 W. Va. 195, 411 S.E.2d 850:

Joe D. Helmick and Tammy Helmick v. Potomac Edison Company, a Maryland corporation, Carl Belt, Inc., a Maryland Corporation, Hester Industries, a corporation, and Potomac Edison Company, a Maryland Corporation, No. 19772 (June 27, 1991)(Neely, J.): 185 W. Va. 269, 406 S.E.2d 700:

Jeffrey W. Stemple and Judith E. Stemple v. Lewis M. Dobson, Carol Y. Dobson, and Ace Exterminators, Inc., a West Virginia corporation, No. 19559 (December 12, 1990)(Miller, J.): 184 W. Va. 317, 400 S.E.2d 561:

Michael Acord and Kathryn L. Acord v. Chrysler Corporation, a corporation, and Earehart AMC/Jeep, Inc., dba Earehart Dodge, a corporation, No. 19498 (November 29, 1990)(Neely, C.J.): 184 W. Va. 149, 399 S.E.2d 860:

Karen J. Thomas, also known as Karen J. LaRosa v. James D. LaRosa, No. 19629 (November 9, 1990)(Neely, C.J.): 184 W. Va. 374, 400 S.E.2d 809:

Elkins Manor Associates, a limited partnership, and Elkins Manor, Inc., a corporation v. Eleanor Concrete Works, Inc., a corporation v. United States Fidelity and Guaranty Company v. Lawrence D. Butcher, No. 19272 (July 25, 1990)(Miller, J.): 183 W. Va. 501, 396 S.E.2d 463:

John T. Copley v. NCR Corporation, Maria McCarthy, Donald W. Hodgson and Victor Cononi, G.I. Williamson, George J. Carpini, C.J. Steinmetz, Paul W. Lappetito, Manuel Garcia, Elton White, W.F. Buster, D.J. Herman and C.E. Exley, Jr., No. 19204 (June 12, 1990)(Miller, J.): 183 W. Va. 152, 394 S.E.2d 751:

In reversing an order enforcing a mandatory arbitration provision of an employment contract, the Court held that under Section 1 of the United States Arbitration Act, 9 U.S.C. ' 1, et seq., which provides for mandatory enforcement of arbitration clauses involving maritime or interstate commerce, an exemption is provided for employment of workers engaged in interstate or foreign commerce.

Earl F. Shrewsbery v. National Grange Mutual Insurance Company, No. 19191 (June 7, 1990)(Neely, C.J.): 183 W. Va. 322, 395 S.E.2d 745:

Jerri T. Warner v. Glenn Dice Warner, No. 19039 (May 18, 1990)(Workman, J.): 183 W. Va. 90, 394 S.E.2d 74:

Dr. Sriramloo Kesari, etc. v. John Simon, d/b/a Hilltop Industries, and United States Fidelity & Guaranty Company, etc. v. J.L. Bowling Roofing & Sheet Metal Company, Inc., No. 19011 (April 12, 1990)(Brotherton, J.): 182 W. Va. 795, 392 S.E.2d 511:

Roy E. Hicks v. Amos C. Wilson, No. 19137 (January 25, 1990)(Neely, C.J.): 182 W. Va. 660, 391 S.E.2d 350:

Jordache Enterprises, Inc., a foreign corporation, et al. v. National Union Fire Insurance Company of Pittsburgh, PA, No. 24672 (November 25, 1998)(Maynard, J.)(Davis, C. J., concurring, in part, and dissenting, in part): ___ W. Va. ___, 513 S.E.2d 692:

In an insurance coverage and bad faith action, the insureds appealed the circuit court=s decision to grant summary judgment to the insurer. The Court affirmed in part and reversed in part, holding inter alia that: (1) a debtor in bankruptcy who is a party to an action but whose participation in the action is automatically stayed by the provisions of 11 U.S.C. ' 362 may be precluded by the principles of res judicata and collateral estoppel from relitigating the same claims or issues of which there was a final adjudication as to his co-defendants, in a subsequent action; (2) in order for a policyholder to bring a common law bad faith claim against his insurer, according to Hayseeds, Inc. v. State Farm Fire & Cas., 177 W. Va. 323, 352 S.E.2d 73 (1986) and its progeny, the policyholder must first substantially prevail against his insurer in the underlying contract action.

Dieter Engineering Services, Inc., a Florida corporation v. Parkland Development, Inc., William Abruzzino, Rebecca Abruzzino, Center Designs, Inc., and Plaza Management, Inc., No. 23330 (December 16, 1996)(McHugh, C.J.): 198 W. Va. 48, 483 S.E.2d 48:

Affirming a $94,367 verdict for plaintiff in a breach of contract action to recover compensation for engineering services performed for defendants in conjunction with construction of a shopping center, the Court ruled that (1) pursuant to W. Va. Code, 31-1-66, which states, in relevant part, that A[n]o foreign corporation which is conducting affairs or doing or transacting business in this State without a certificate of authority shall be permitted to maintain any action or proceeding in any court of this State until such corporation shall have obtained a certificate of authority@, such corporation may maintain an action or proceeding in any court in this State after obtaining a certificate of authority even though the corporation did not have the certificate at the time it instituted the action or proceeding; (2) the assignment to plaintiff of defendants= accounts receivable was not void on the ground that plaintiff did not exist at the time of the assignment agreement; and (3) the stockholders of defendant corporation could be held individually liable under Laya v. Erin Homes, Inc., 177 W. Va. 343, 352 S.E.2d 93 (1986).

State ex rel. Truong Van Nguyen v. Honorable Irene Berger, Judge of the Circuit Court of Kanawha County, and William C. Forbes, Prosecuting Attorney for Kanawha County, AND State of West Virginia v. Steve A. Rife, Nos. 23614 and 23655 (December 16, 1996) (Recht, J.): 199 W. Va. 71, 483 S.E.2d 71:

Denying a writ of prohibition to force dismissal of an indictment and reversing dismissal of another indictment against corporate officers for violations of W. Va. Code, 23-1-16(a), the Court held that corporate officers, along with the corporation, may be criminally responsible for the corporation=s failure to pay workers= compensation premiums and to file quarterly workers= compensation reports required by the statute under the common law rule that officers, agents and directors of a corporation may be criminally liable if they cause the corporation to violate the criminal law while conducting corporate business.

Joseph M. Persinger, on behalf of himself and other shareholders of Persingers, Incorporated, a West Virginia Corporation; Kenneth T. Williamson; Carol Preston Williamson v. R. Frank Carmazzi, Sales One, Inc., a West Virginia corporation; Sales Two, Inc., a West Virginia corporation; John C. Morton; W. Guy Wiles, Jr.; William A. Tantlinger; Persingers Incorporated, a West Virginia corporation; William F. Agee; First Huntington National Bank N.A., No. 21804 (February 17, 1994)(Neely, J.): 190 W. Va. 683, 441 S.E.2d 646:

Effectively rejecting an attempt by minority shareholders to upset a corporate takeover, the Court held (1) under W. Va. Code ' 31-1-19, shareholders are only entitled to receive notice of the time and place of the annual meeting and are not entitled to receive notice of a proposed bylaw amendment unless such amendment involves the articles of incorporation, a merger, a sale of assets, or dissolution; (2) a shareholder may vote on a measure even though the shareholder has a personal interest in the measure apart from his or her interest as a shareholder; (3) unless illegal, ultra vires, fraudulent, or majority stockholders use their voting power for selfish purposes adverse to the interests of the corporation, a corporation stock redemption does not constitute breach of a fiduciary duty; and (4) when majority stockholders seek a corporation's merger, they may do so for any purpose, so long as the terms tendered to the minority shareholders accurately reflect the fair market value of the minority interest.

John Mills v. USA Mobile Communications, Inc., a domestic corporation, and Jack W. Fuellhart, individually, No. 21761 (October 29, 1993)(Miller, J.): 190 W. Va. 209, 438 S.E.2d 1:

State of West Virginia ex rel. Herbert Elish, et al. v. Honorable Ronald E. Wilson, Judge of the Circuit Court of Hancock County; Larry G. Godich, et al., No. 21752 (July 22, 1993)(Brotherton, J.): 189 W. Va. 739, 434 S.E.2d 411:

Eddie Bowling, et al. v. Ansted Chrysler-Plymouth-Dodge, Inc., and David Akers, No. 20994 (December 11, 1992)(Miller, J.): 188 W. Va. 468, 425 S.E.2d 144:

Charles W. Young v. JCR Petroleum, Inc., a foreign corporation; J.R. Barati; and Jerry L. Willey, Nos. 21010 and 21137 (November 12, 1992)(Neely, J.): 188 W. Va. 280, 423 S.E.2d 889:

Joy Technologies, Inc. v. Liberty Mutual Insurance Company, et al., No. 20153 (July 21, 1992)(Brotherton, J.)(as modified): 187 W. Va. 742, 421 S.E.2d 493:

State of West Virginia v. Kennie Childers, No. 20426 (March 5, 1992)(Miller, J.): 187 W. Va. 54, 415 S.E.2d 460:

In the Matter of: Determination Pursuant to Chapter 31, Article 1, Sections 122 and 123 of the Code of West Virginia of 1931, Amended, of FAIR FALUE OF SHARES OF BANK OF RIPLEY, a West Virginia Banking Corporation Owned by Shareholders Dissenting From the Merger of Bank of Ripley with Ripley Bank Merger Subsidiary, Inc., a Subsidiary of City Holding Company, No. 19609 (November 13, 1990)(Miller, J.): 184 W. Va. 96, 399 S.E.2d 678:

Where minority shareholders, dissenting from a proposed bank merger, failed to physically tender their shares for notation within the 20 day period set forth in W. Va. Code ' 31-1-123(f), the Court held (1) the statutory rights of dissenting shareholders are to be construed favorably to shareholders, especially where there is no prejudice to the corporation; (2) failure to comply with W. Va. Code ' 31-1-123(f) may be waived by the corporation or may be excused for good cause; and, (3) where a dissenting shareholder has complied with the other provisions of W. Va. Code ' 31-1-123, failure to comply with W. Va. Code ' 31-1-123(f) will not terminate the shareholder's rights if the delay is not substantial and the corporation can demonstrate no prejudice.

Hodges Realty Co., Inc., etc. v. John Smiley's Motel, Inc., etc., No. 18901 (June 21, 1990)(Brotherton, J.): 183 W. Va. 328, 395 S.E.2d 751:

State of West Virginia v. Robert Eugene Carter, No. 25186 (December 14, 1998)(Maynard, J.)(McCuskey, J., participating)(McGraw, J., not participating): ___ W. Va. ___, 513 S.E.2d 718:

Affirming appellant=s conviction for two counts of malicious assault on a correctional officer and one count of battery on a correctional officer. The Court rejected appellant=s argument that because more than three terms of court had elapsed between the time he was indicted and brought to trial, his conviction should be reversed. Appellant was in federal custody for some time following his indictment, but prior to his arraignment. The Court held that pursuant to W. Va. Code ' 62-3-21, when an accused is charged with a felony or misdemeanor and arraigned in a court of competent jurisdiction, if three regular terms of court pass without trial after presentment or indictment, the accused shall be forever discharged from prosecution for the felony or misdemeanor charged unless the failure to try the accused is caused by one of the exceptions enumerated in the statute.

State of West Virginia v. Johnny Rodoussakis, No. 25170 (December 10, 1998) (Maynard, J.)(McCuskey, J., participating)(McGraw, J., not participating): ___ W. Va. ___, 511 S.E.2d 469:

Affirming the defendant=s conviction of felony murder, the Court held in a case of first impression that pursuant to W. Va. Code ' 61-2-1, death resulting from an overdose of a controlled substance as defined in W. Va. Code ' 60A-4-401 and occurring in the commission of or attempt to commit a felony offense of manufacturing or delivering such controlled substance, subjects the manufacturer or deliverer of the controlled substance to the felony murder rule.

State of West Virginia v. Barbara Jean Milburn, No. 25006 (December 9, 1998)(Maynard, J.)(Davis, C.J., dissenting)(McCuskey, J., participating) (McGraw, J., not participating): ___ W. Va. ___, 511 S.E.2d 828:

Affirming defendant=s conviction of first degree murder with mercy, second degree arson, and two counts of providing false information to a state police officer, the Court rejected appellant=s claim of prejudicial joinder because evidence of each of the crimes charged would be admissible in a separate trial for the other. The Court further held, inter alia, that the trial court did not err in admitting into evidence two statements made to the police by her juvenile co-defendant.

State of West Virginia v. George A. Easton AND State of West Virginia v. Kevin True, Nos. 25057 and 25058 (December 7, 1998)(Davis, C.J.)(McCuskey, participating)(McGraw, J., not participating): 203 W. Va. 631, 510 S.E.2d 465:

Appellant=s convictions for the felony offenses of the willful creation by a custodian of an emergency situation for an incapacitated adult and convictions for misdemeanor battery were affirmed. As to the constitutional vagueness challenge to W. Va. Code ' 9-6-15(b), the Court found that the statutory language sufficiently satisfied the requirements of notice of both the proscribed conduct and the possible penalties. The Court also held that Anot only may an individual be convicted of a crime in accordance with the criminal statute in effect at the time of his/her offense, but he/she may also be sentenced in conformity with the same criminal statute found to be applicable.@ Finally, the Court held that convictions for battery and willful creation of an emergency situationCwhen the offenses arose from the same incident and involved the same victimCdid not constitute a violation of double jeopardy rights. The Court found that the plain language of the two penal statutes clearly indicated that the defendants were convicted of and sentenced for two distinct criminal offenses.

State of West Virginia v. Ardyce C. Bull and Michael P. Bull, No. 25179 (December 4, 1998)(Starcher, J.): ___ W. Va. ___, 512 S.E.2d 177:

The Court affirmed the appellant=s convictions of violations of W. Va. Code ' 9-6-15(b), which established the criminal offense of abuse or neglect of an incapacitated adult. The Court concluded that the language of W. Va. Code ' 9-6-15(b) and its associated definitional sections defining the terms Aincapacitated adult,@ Aabused,@ Aemergency situation@ and Aneglect,@ should leave no doubt in the mind of a reasonable person as to the conduct that is declared to be subject to criminal prosecution and penalty. Thus, the Court held that W. Va. Code ' 9-6-15(b) is not unconstitutionally vague. The Court also rejected the appellant=s contention that the indictments should have been dismissed because they used language in the disjunctive Aor@ as opposed to the conjunctive Aand.@

State of West Virginia v. Nathan Shelton, No. 25019 (December 4, 1998)(McCuskey, J.): ___ W. Va. ___, 512 S.E.2d 568:

Vacating the lower court=s sentencing order and remanding for further proceedings, the Court held that when convicted persons are otherwise eligible for home incarceration, the process of setting of a fee for home incarceration by a circuit judge or magistrateCas well as the establishment of a fee schedule for home incarceration costs by supervising circuit judgesCmust take into account the ability of individual offenders to pay those costs so that indigents are not unfairly denied access to home incarceration as an alternative form of sentencing.

State of West Virginia v. Zenie Junior Myers, III, No. 25004 (November 20, 1998) (Davis, C.J.)(Maynard, J., deemed himself disqualified)(Moats, Judge, sitting by temporary assignment): ___ W. Va. ___, 513 S.E.2d 676:

The defendant=s conviction and sentence for the crime of first degree murder were reversed. The case was remanded with instructions that the defendant be permitted to withdraw from his plea of guilty and his plea agreement. The Court held, inter alia, that: (1) for the purposes of plain error analysis, when there exists a plea agreement in which the State has promised to remain silent as to specific sentencing matters and the State breaches such agreement by advocating specific matters at a sentencing hearing, prejudice to the defendant is presumed. In this situation, the burden then shifts to the State to prove beyond a reasonable doubt that its breach of the plea agreement did not prejudice the outcome of the proceeding. The mere showing that the trial court would have sentenced the defendant upon the same terms even without such a breach will not satisfy the State=s burden; (2) whenever the State violates a sentencing neutrality provision of a plea agreement, the violation seriously affects the fairness, integrity and public reputation of the proceeding; and (3) when a plea agreement has been breached by the State, it is the province of the Supreme Court or the trial court in the first instance, and not the defendant, to decide whether to grant specific performance of the plea agreement or permit withdrawal of the guilty plea.

State of West Virginia v. Michael Daniel Salmons, No. 24967 (November 4, 1998)(Davis, C.J.): 203 W. Va. 561, 509 S.E.2d 482:

Affirming defendant=s conviction of kidnaping and aggravated robbery, the Court held in part that a violation of State v. Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988) is subject to a harmless error analysis. A rebuttable presumption exists that a defendant represented by legal counsel has been informed of the constitutional right to testify. When a defendant is represented by legal counsel, a Neuman violation is harmless error in the absence of evidence that a defendant=s legal counsel failed to inform him/her of the right to testify, or that the defendant was coerced or misled into giving up the right to testify. When a defendant represents him/herself at trial, a Neuman violation is harmless error where it is shown that the defendant was in fact aware of his/her right to testify and that the defendant was not coerced or misled into giving up the right to testify.

State of West Virginia v. Robert Vaughn Evans AND State of West Virginia v. James B. Lewis, Nos. 25000 and 25209 (October 2, 1998) (Workman, J.): 203 W. Va. 446, 508 S.E.2d 606:

Affirming a revocation of probation and a recidivism finding in two consolidated cases, the Court held that convictions based upon pleas of nolo contendere can be used both to revoke probation and to enhance sentencing under West Virginia=s recidivism laws. Because convictions, rather than pleas, are the critical factor for sentence enhancement, the Court held that it was immaterial whether the plea was guilty, not guilty, or nolo contendere; because for recidivism purposes, it is the conviction, not the plea, that controls. In addition, the Court held that pursuant to West Virginia Rule of Evidence 1101(b)(3), the rules of evidence are not applicable during criminal proceedings that involve probation revocation.

State of West Virginia v. Jacob W. Beard, No. 24644 (July 15, 1998)(Workman, J.): 203 W. Va. 325, 507 S.E.2d 688:

James Stuckey v. George Trent, Warden, and West Virginia Division of Corrections, No. 24528 (July 2, 1998)(Workman, J.): 202 W. Va. 498, 505 S.E.2d 417:

Affirming the trial court=s denial of habeas relief in a first-degree murder case, the Court held, inter alia, as follows the in West Virginia, (1) murder by any willful, deliberate and premeditated killing, and (2) felony-murder (both) constitute alternative means under W. Va. Code ' 61-2-1 (1987) of committing the statutory offense of murder in the first degree; consequently, the State=s reliance upon both theories at a trial for murder of the first degree does not, per se, offend the principles of due process, provided that the two theories are distinguished for the jury through court instructions; nor does the absence of a jury verdict form distinguishing the two theories violate due process, where the State does not proceed against the defendant upon the underlying felony.

State of West Virginia v. Orville Ray Yoak AND State of West Virginia v. Roger D. Hardman, Nos. 24505 and 24506 (June 22, 1998) (Maynard, J.): 202 W. Va. 331, 504 S.E.2d 158:

Remanding a criminal case involving the authority of a trial judge to use alternative sentencing when sentencing an individual convicted of third offense driving under the influence of alcohol, the Court held that the 1994 amendment contained in W. Va. Code ' 17C-5-2(o) and presently codified at W. Va. Code ' 17C-5-2(p) (1996) has effectively overruled State ex rel. Hagg v. Spillers, 181 W. Va. 387, 382 S.E.2d 581 (1989) and State ex rel. Moomau v. Hamilton, 184 W. Va. 251, 400 S.E.2d 259 (1990), by permitting circuit courts to consider the alternative sentence of home incarceration, pursuant to W. Va. Code ' 62-11B-1 et seq. in such circumstances.

State of West Virginia ex rel. C. E. "Sam" Hall, Prosecuting Attorney for Boone County v. Honorable Lee Schlaegel, Jr., Judge of the Circuit Court of Boone County, and Charles Gregory Brown, No. 24581 (April 2, 1998) (Workman, J.): 202 W. Va. 93, 502 S.E.2d 190:

Granting a writ of prohibition, seeking to prohibit Judge Schlaegel=s order dismissing the State=s information against the Mr. Brown for operating a motor vehicle during a period when his operator=s license had been revoked for DUI, the Court ruled unanimously (inter alia) as follows: Until such time as a driver whose license has been revoked for driving under the influence has complied with the statutorily-prescribed steps for reissuance of his driver=s license set forth in W. Va. Code ' 17C-5A-3(b), he/she remains subject to prosecution for driving while his/her license is revoked for driving under the influence, pursuant to W. Va. Code ' 17B-4-3(b), notwithstanding the fact that the statutory period of revocation has elapsed.

State of West Virginia ex rel. Deborah A. Lawson and the Public Defender Corporation for the Twenty-Third Judicial Circuit v. Honorable Christopher Wilkes, Judge of the Circuit Court of Jefferson County, and Ismael Velasquez, No. 24582 (February 25, 1998)(Davis, C.J.): 202 W. Va. 34, 501 S.E.2d 470:

Granting as moulded a petition for writ of prohibition, the Court ruled unanimously as follows: [1] In the absence of an express written waiver of his or her right to a committee under W. Va. Code ' 28-5-36, or a guardian ad litem under Rule 17(c) of the West Virginia Rules of Civil Procedure, a suit cannot be directly maintained against a prisoner; [2] A forfeiture action brought under the West Virginia Contraband Forfeiture Act is an action in rem that is brought against the item(s) sought to be forfeited, and not an action against the owner of such item(s); and [3] Rule 17(c) of the West Virginia Rules of Civil Procedure does not require appointment of a guardian ad litem for an otherwise unrepresented convict whose property is subject to a civil forfeiture action pursuant to the West Virginia Contraband Forfeiture Act, as such an action is maintained against the property, and is not directly maintained against the owner convict.

State of West Virginia v. Mark Randal Murrell, No. 23808 (December 16, 1997)(Workman, C.J.): 201 W. Va. 648, 499 S.E.2d 870:

Affirming in part and reversing in part a criminal sentencing order, the Court held that an individual is not excused from the imposition of the maximum sentence allowed under a statute simply because he is indigent, even if that sentence includes the imposition of fines pursuant to statute. The Court noted that while there is no prohibition against the imposition of the maximum penalty prescribed by law, indigent defendants may not be incarcerated solely because of their inability to pay court-ordered fines or costs. The Court reversed the portion of the lower court=s ruling that would require payment of attorney fees within thirty days, in conflict with statutory law, providing that the order is not enforceable during a period of imprisonment.

State of West Virginia ex rel. Sergeant T. A. Barrick, West Virginia State Police, a government agency v. Honorable Robert B. Stone, Judge of the Circuit Court of Monongalia County, and R.E.P., No. 24473 (December 11, 1997)(Starcher, J.): 201 W. Va. 569, 499 S.E.2d 298:

Granting a petition for writ of prohibition, seeking to prevent enforcement of an order requiring the CIB to expunge a valid criminal conviction from an individual=s criminal history record, the Court held as follows: A circuit court, absent extraordinary circumstances and to protect constitutional rights or some other compelling public policy imperative, does not in the absence of statutory authority have the power to order the expungement of criminal history record information regarding a valid criminal conviction maintained by the State Police Criminal Investigation Bureau pursuant to W. Va. Code '15-2-24 (1977).

State v. Gary Michael Lucas, No. 23903 (November 20, 1997)(Starcher, J.): 201 W. Va. 271, 496 S.E.2d 221:

Affirming the circuit court=s order of restitution in the amount of $1,430,000, the Court held, inter alia, (a) where a criminal defendant intends to and does obtain money or other benefit from an insurance company by committing a criminal act of arson, the insurance company is a direct victim of the crim and is eligible for restitution under the provisions of W. Va. Code ' 61-11A-4(a) and (b) in cases where full restitution is ordered and where noncompliance with the restitution order will not in itself yield a potential penalty, the decision whether to make findings and assign reasons in support of the order of restitution is committed to the sound discretion of the court; however, if the record is insufficient, if potential penalties will be triggered by the defendant=s failure to pay the restitiution, or if less than full restitution is ordered, the circuit court must make approrpriate findings and conclusiosns regarding the matters which it has considered.

State ex rel. The West Virginia State Police and Sgt. T. A. Barrick v. The Honorable C. Reeves Taylor, Marshal K. Mills, Quality Supplier Trucking, Inc. and Roadway Express, Inc., No. 24150 (November 20, 1997) (Starcher, J.): 201 W. Va. 554, 499 S.E.2d 283:

State of West Virginia v. Brian Hemlick, No. 23785 (October 3, 1997)(Maynard, J.): 201 W. Va. 163, 495 S.E.2d 262:

Affirming defendant=s conviction of conspiracy to commit murder, the Court reemphasized the Afive essential requirements@ for granting a new trial on the ground of Anewly discovered evidence.@ The Court held inter alia that the claimed evidence did not meet the requirements of the Anewly discovered evidence@ rule.

State of West Virginia v. Lorie Ann McGuire, No. 23671 (July 18, 1997)(Workman, C.J.): 200 W. Va. 823, 490 S.E.2d 912:

Affirming defendant=s conviction of voluntary manslaughter conviction arising from the death of her newborn, the Court held, inter alia, that (1) there was insufficient evidence that the baby was stillborn to warrant giving a defense instruction on proof and definition of Alive birth@; (2) defense instructions on involuntary manslaughter were incomplete and inaccurate and the State=s instruction on voluntary manslaughter was supported by the evidence; (3) the exhumation of the body for a second autopsy upon the State=s ex parte request was not a critical stage of the proceedings entitling defendant to notice and the right to be present; and (4) the circuit court did not err in not granting defendant credit for time served when she was out on bail on home confinement prior to trial.

State of West Virginia v. Gary AMo@ Wade, No. 23559 (July 11, 1997)(Davis, J.): 200 W. Va. 637, 490 S.E.2d 724:

Affirming defendant=s conviction of felony murder without mercy, the Court held that (1) self-defense and provocation are not available as defenses to a charge of felony murder where the predicate felony is delivery of a controlled substance; (2) as a matter of law, second-degree murder, voluntary manslaughter and involuntary manslaughter are not lesser included offenses of felony murder; (3) the evidence of defendant=s participation in the drug transaction was sufficient to support the felony murder conviction; (4) the circuit court did not err in admitting testimony of the victim=s father; and (5) the court did not abuse its discretion in not removing for cause two of the jurors.

State of West Virginia v. Samuel Farmer, No. 23701 (July 3, 1997)(Workman, C.J.): 200 W. Va. 507, 490 S.E.2d 326:

Affirming defendant=s convictions of four counts of delivery of marijuana, the Court held that (1) the circuit court=s sua sponte questioning of the State=s only witness outside the presence of the jury to clarify confusing testimony as to the dates on which defendant allegedly sold him marijuana did not exceed the court=s authority under W. Va.R.Evid. 614(b).

State of West Virginia v. Tracy John Craft, No. 23610 (June 24, 1997)(McHugh, J.): 200 W. Va. 496, 490 S.E.2d 315:

Affirming defendant=s sentence of life without mercy following his plea of guilty to first-degree murder, the Court held that when defendant or counsel objects to alleged factual inaccuracies in the presentence investigation report of the summary of the report, the circuit court is required under W. Va.R.Crim.P. 32(c)(3)(D) make findings as to every allegation of inaccuracy or a determination that no such finding is necessary, but defendant=s failure to raise the issue constituted a waiver.

State of West Virginia v. Anthony Ray Mc., No. 23736 (June 19, 1997)(Davis, J.): 200 W. Va. 312, 489 S.E.2d 289:

State of West Virginia v. Donald E. Williams, Jr., No. 23744 (June 18, 1997)(Starcher, J.): 200 W. Va. 466, 490 S.E.2d 285:

Affirming defendant=s conviction of second-offense DUI, the Court held, inter alia, that unless it can be shown that the factual predicates for a prior out-of-state DUI conviction failed to include any element of the West Virginia DUI statute, the prior out-of-state DUI conviction is prima facie proof for purposes of sentence enhancement. The Court ruled that the mere fact that the Virginia DUI statute prohibited Adriving or operating@ a vehicle while under the influence of alcohol, while the West Virginia DUI statute prohibited only Adriving@ in such a condition, did not preclude the use of the Virginia conviction for sentence enhancement purposes.

State of West Virginia v. James Quinn, No. 23537 (June 4, 1997)(Starcher, J.): 200 W. Va. 432, 490 S.E.2d 43:

Affirming defendant=s conviction of sexual misconduct toward a child by a custodian, the Court held that the circuit court did not err in ruling that (1) the Rape Shield Law, W. Va. Code, 61-8B-11, prohibited the defendant from cross-examining the child victim about statements she had previously made about having been the victim of sexual misconduct by persons other than the defendant where the defendant failed to make a prior threshold showing outside the presence of the jury of substantial proof that the other statements of the victim were false and (2) prior consistent statements by the child victim regarding the defendant=s alleged sexual misconduct were not hearsay and were admissible under W. Va.R.Evid. 801(d)(1)(B).

State of West Virginia ex rel. Franklin Ring v. Gail Boober, Jefferson County Magistrate, No. 23676 (May 30, 1997)(Maynard, J.): 200 W. Va. 66, 488 S.E.2d 66:

Affirming the circuit court=s denial of a petition for a writ of prohibition to prevent a bench trial in magistrate court on a charge of receiving and transferring stolen goods, the Court ruled that W. Va. Code, 50-5-8(b) and Rule 5(c) of the West Virginia Rules of Criminal Procedure for Magistrate Courts, providing for a waiver of the right to a jury trial in magistrate court if a written request for a jury trial is not made within 20 days from the date of the defendant=s initial appearance (or, if the defendant is indigent, from the date of appointment of counsel), does not unconstitutionally deprive a defendant of his right to trial by jury.

State of West Virginia v. Christopher Whetzel, No. 23846 (May 30, 1997)(Maynard, J.): 200 W. Va. 45, 488 S.E.2d 45:

State of West Virginia ex rel. Ginny Conley, Prosecuting Attorney for Wood County v. Honorable George W. Hill, Judge of the Circuit Court of Wood County, No. 23839 (May 30, 1997)(Workman, C.J.): 199 W. Va. 686, 487 S.E.2d 344:

State of West Virginia v. Ronnie Redden, No. 23879 (May 29, 1997)(Starcher, J.): 199 W. Va. 660, 487 S.E.2d 318:

Affirming defendant=s conviction of first-degree sexual assault following a bench trial in circuit court, the Court held that (1) the circuit court did not err in concluding that defendant had knowingly, intelligently and voluntarily waived his right to a jury trial and (2) where a transcript of an on-the-record waiver hearing clearly shows that the defendant personally made a knowing, intelligent and voluntary waiver of his right to jury trial, the circuit court=s failure to obtain defendant=s signature on a written waiver, as required by Rule 23(a) of the West Virginia Rules of Criminal Procedure, does not, of itself, invalidate such waiver.

State of West Virginia ex rel Glen Aaron, Kimberly Brogan, Brian Russell Clark, Brent McCrea, Roy DeAngelo Sharpless and Robert Lee Williams v. Honorable Charles E. King, Judge of the Circuit Court of Kanawha County, and John J. Myatt, Chief Probation Officer for the Thirteenth Judicial Circuit, No. 23932 (April 11, 1997)(Davis, J.): 199 W. Va. 533, 485 S.E.2d 702:

State of West Virginia v. Judy Browning, No. 23457 (March 17, 1997)(Maynard, J.): 199 W. Va. 417, 485 S.E.2d 1:

Affirming defendant=s convictions of first-degree murder with mercy and shooting at a person in a public street, the Court held (1) the evidence was sufficient to support the convictions; (2) in a murder case, an instruction that a jury may infer malice and intent to kill from the use of a deadly weapon does not unconstitutionally shift the burden of proof where the State proves beyond a reasonable doubt that the defendant, without lawful justification, excuse or provocation, shot the victim with a firearm; (3) the admission of the victim=s statement, made in the presence of defendant and others, that defendant always carried a gun did not violate defendant=s right to confront witnesses where defendant did not dispute the statement at the time, and it was only introduced after defendant testified that she did not carry a gun; (4) admission of the victim=s statement that he had had an argument with defendant and terminated his relationship with her was not error where defense counsel failed to object on the ground that the statement was hearsay and the statement was relevant to prove motive; (5) admission of handwritten notes illegally seized from defendant=s home was not error where they were introduced to impeach defendant=s credibility after she testified that she did not recall the victim terminating their relationship; and (6) defendant was afforded a right of allocution at her sentencing hearing.

State of West Virginia v. William Bradford, No. 23454 (March 14, 1997)(Maynard, J.): 199 W. Va. 383, 484 S.E.2d 221:

Affirming defendant=s convictions of first-degree murder without mercy in the shooting and dismemberment of his father, second-degree sexual assault of his step-mother, and use of a firearm in the commission of a felony, the Court held that (1) the circuit court=s decision to admit inculpatory statements defendant made to police after he was advised of his Miranda rights was not clearly wrong where, although defendant stated AI=m done talking@, it could logically be inferred from the surrounding circumstances that defendant was referring only to further discussion of the dismemberment, and was not exercising his right to remain silent on other matters; (2) the crime of accessory after the fact is not a lesser included offense of first-degree murder which would warrant the giving of an instruction; (3) the trial court=s refusal to allow defendant to cross-examine his step-mother as to supposed discord in her marriage to the victim as a motive for her to murder him was not error where defendant was allowed to testify as to his version of events, implicating his step-mother, and there was no other evidence directly linking her to the murder; (4) the prosecution=s references to defendant=s use of foul language, the dismemberment of the victim, and the Bible were not prejudicial where the defense made as many references to the evidence as the State and did not object to the references to the Bible; and (5) the fact that three different judges presided over various stages of the proceedings did not deny defendant due process or a fair trial.

State of West Virginia v. Dominique Rahman, No. 23329 (December 20, 1996) (Workman, J.): 199 W. Va. 144, 483 S.E.2d 273:

Remanding defendant=s conviction of four felony counts of possession of heroin with intent to deliver for a hearing under Batson v. Kentucky, 476 U.S. 79 (1986), the Court held , inter alia, that (1) the fact that a black juror remained on the jury panel did not preclude defendant from claiming racial discrimination in jury selection under Batson arising from a preemptive strike of another black juror, and (2) in resolving defendant=s claim of racial discrimination under Batson, the circuit court should have considered defendant=s assertion that a similarly situated white juror was not challenged and should have required the State to articulate a credible reason for disparate treatment of similarly situated black and white jurors.

State of West Virginia v. Dennis Macri, et al., No. 23468 (December 19, 1996)(Workman, J.): 199 W. Va. 696, 487 S.E.2d 891:

Granting a moulded writ of prohibition to prevent dismissal of multiple indictments, the Court held (1) the State may appeal dismissal of an indictment under W. Va. Code, 58-5-30 as bad or insufficient only when the dismissal is predicated the indictment=s failure to contain the elements of the offense to be charged so as to sufficiently apprise the defendant of the charges against him or her or to contain sufficient accurate information to permit a plea of former acquittal or conviction, and (2) a circuit court exceeds its jurisdiction in dismissing an indictment on grounds that it was procured by an assistant prosecuting attorney who is not a resident of West Virginia because an assistant prosecuting attorney is not a public officer required to be a citizen of this State under W. Va. Const., art. IV, Section 4.

State of West Virginia v. Betty Jane Smith, No. 23312 (December 19, 1996)(Workman, J.): 198 W. Va. 702, 482 S.E.2d 687:

Affirming a circuit court order releasing defendant from confinement in a mental facility but retaining jurisdiction over her for 18 years following her acquittal of second-degree murder due to mental illness, the Court held that (1) W. Va. Code, 27-6A-3 (1995), requiring the circuit court to retain jurisdiction over a defendant found not guilty by reason of mental illness for the maximum period to which the defendant could have been sentenced but for the mental illness, does not violate due process or equal protection principles where W. Va. Code, 27-6A-4 allows the circuit court flexibility to terminate retained jurisdiction prior to the end of the maximum sentence period in consideration of the acquittee=s mental condition; (2) because W. Va. Code, 27-6A-3 (1995) is not punitive or criminal in nature or purpose, ex post facto principles do not prohibit the application of the 1995 statute to an offense which occurred in 1994; and (3) the circuit court did not err in continuing the proceedings past the effective date of W. Va. Code, 27-6A-3 (1995), in order to obtain a copy of the new legislation.

State of West Virginia v. Julie Wyatt, No. 23260 (December 12, 1996)(Albright, J.): 198 W. Va. 530, 482 S.E.2d 147:

Reversing defendant=s conviction of murder of a child by failure to provide medical care and remanding for a new trial, the Court held (1) W. Va. Code, 61-8D-2(b), defining the crime charged, is not unconstitutionally vague; (2) the instructions defining the offense charged were inaccurate, misleading and confusing; and (3) the circuit court did not err in excluding defendant=s expert testimony on battered woman syndrome to negate defendant=s intent to commit the crime.

State of West Virginia v. Leeman Jarvis, No. 23086 (December 12, 1996)(Albright, J.): 199 W. Va. 38, 483 S.E.2d 38:

Affirming defendant=s conviction of second-degree murder in the death of his daughter-in-law, the Court held, inter alia, (1) instructions on lesser included offenses were warranted by the evidence, notwithstanding the fact that the court initially had ruled that lesser included offense instructions would not be allowed; and (2) the circuit court did not err in allowing decedent=s divorce attorney to testify when her estranged husband invoked the attorney-client privilege as representative of decedent=s estate

State of West Virginia v. Michael Head, No. 23404 (November 14, 1996)(Recht, J.): 198 W. Va. 298, 480 S.E.2d 507:

Reversing the circuit court=s denial as untimely of defendant=s motion for reduction of his 60-year sentence for aggravated robbery, the Court held (1) once a motion for reconsideration of sentence under W. Va.R.Crim.P. 35(b) is timely made, the failure of the defendant to remind the circuit court that the motion is pending does not constitute an abandonment of the motion; (2) what constitutes a Areasonable period@ for a court to rule on a Rule 35(b) motion must be determined based on the facts of each case; (3) where a court fails to rule on a Rule 35(b) motion due to administrative error, any resultant delay in disposing of the motion cannot be considered an unreasonable delay barring a ruling on the motion; and (4) while in considering Rule 35(b) motions the circuit court should generally consider only those events that occur within the 120-day filing period, as long as the court does not usurp the role of the parole board, it may consider matters beyond the filing period to serve the ends of justice.

State of West Virginia v. Charles Rhea Hinkle, No. 23424 (October 31, 1996)(Cleckley, J.): 200 W. Va. 280, 489 S.E.2d 257:

Reversing the defendant=s conviction for involuntary manslaughter while driving a motor vehicle in an unlawful manner, the Court held (1) unconsciousness (or automatism) is not part of the insanity defense, but a separate defense which may eliminate the voluntariness of a criminal act, rather than negating the mental element of a crime, and requires a separate instruction; (2) an instruction on the defense of unconsciousness is warranted where the defendant alleges that he was rendered unconscious at the time of the crime by reason of a then-undiagnosed brain disorder affecting the reticular activating system of his brain; and (3) an instruction on the defense of unconsciousness should charge the jury that even if it believes there is a reasonable doubt about the consciousness of the defendant at the time of the crime, a defendant who voluntarily operates a motor vehicle with knowledge of a pre-existing condition which may result in loss of consciousness or of prior recurring episodes of loss of consciousness may be guilty of reckless disregard for the safety of others.

State of West Virginia v. Randy L. Thornton, No. 23345 (October 15, 1996)(Albright, J.): 197 W. Va. 726, 478 S.E.2d 576:

Reversing a judge=s decision not to entertain a motion for reduction of sentence filed within 120 days of the denial by the Supreme Court of a prisoner=s petition for post-conviction habeas corpus, the Court noted such ruling was compelled by the language of R. Crim. P. 35(b), but also held that under the revised version of R. Crim. P. 35(b), which became effective on September 1, a motion for reduction of sentence must be filed only within 120 days after sentence is imposed, probation is revoked, entry of an order dismissing or rejecting an appeal from a conviction or probation revocation, or entry of a mandate affirming a judgment of conviction or probation revocation.

State of West Virginia v. Eugene Blake, No. 23458 (October 11, 1996)(Cleckley, J.): 197 W. Va. 700, 478 S.E.2d 550:

Reversing a murder conviction where the trial court excluded evidence that a key prosecution witness failed to disclose during the witness=s earlier polygraph examination an allegedly inculpatory statement made by the defendant, but rejecting the defendant=s claim of a right to reversal under Neuman, the Court held (1) in order for a prior inconsistent statement by a witness to be admissible (i) the statement must be inconsistent, but is not required to be diametrically opposed to the witness=s testimony, (ii) if the statement is presented in the form of extrinsic evidence, rather than through cross-examination of the witness, the area of impeachment must be sufficiently relevant and the requirements of R. Evid. 613(b), including notice and an opportunity to respond, must be satisfied, and (iii) the jury must be instructed that the evidence is admissible only for impeachment purposes and not as evidence of a material fact; (2) although a witness may not ordinarily be impeached by his or her prior failure to disclose a material fact, such impeachment should be permitted where the failure to disclose occurred under circumstances where it would have been incumbent on the witness or natural for the witness to disclose the material fact; (3) although evidentiary rulings do not automatically warrant reversal of a conviction, where the improper exclusion of evidence places the underlying fairness of the trial in doubt or where the exclusion adversely affect the substantial rights of the defendant, reversal is warranted; (4) the factors to be considered in determining the retroactivity of a new constitutional rule of criminal procedure are (i) the purposes served by the new rule, (ii) the extent of reliance by police on the old rule, and (iii) the effect of retroactive application of the new rule on the administration of justice; and (5) a judicial decision in a criminal case is to be given prospective application only if (i) it establishes a new principle of law, (ii) its retroactive application would retard its operation, and (iii) its retroactive application would produce inequitable results.

State of West Virginia v. James L. Crabtree, No. 23408 (October 11, 1996)(Cleckley, J.): 198 W. Va. 620, 482 S.E.2d 605:

Affirming a defendant=s conviction of malicious wounding, battery, and recidivism, the Court held that (1) a statement or conduct by a declarant that is inconsistent with a hearsay statement admitted under R. Evid. 806 is not subject to the requirement that the declarant be afforded an opportunity to explain or deny the inconsistency; (2) testimony not responsive to the question posed may be stricken upon motion of the examiner, particularly where such testimony is otherwise inadmissible; (3) where there has been waiver, which is the intentional relinquishment or abandonment of a known right, the Aplain error@ doctrine under R. Crim. P. 52(a) does not apply; (4) a criminal defendant=s right to inspect tangible objects under R. Crim. P. 16(a)(1)(C) includes the right to have an expert examine objects the prosecution contends were used or possessed by the defendant at the time of the commission of the crime; (5) a criminal defendant who desires expert inspection of a tangible object in the prosecution=s possession should file a motion (i) setting forth the circumstances of the proposed analysis, (ii) identifying the expert who will perform the analysis, and (iii) describing the expert=s qualifications and scientific background; and (6) a trial court granting a criminal defendant=s motion for expert inspection of evidence in the prosecution=s possession may provide for appropriate safeguards, including the performance of any testing at the State laboratory under the supervision of the State=s analyst.

State of West Virginia v. Larry Potter, No. 23406 (October 11, 1996)(Cleckley, J.): 197 W. Va. 734, 478 S.E.2d 742:

Affirming the first-degree sexual assault and sexual abuse by a custodian convictions of a church pastor where the defendant confessed to a police officer and later to a minister, the Court held (1) a suspect must make some affirmative indication that he or she desires to speak with an attorney or wishes to have counsel appointed in order to assert the right to counsel during a police interrogation; (2) when a suspect voluntarily goes to the police station for question at the request of an investigating officer and gives inculpatory statements despite the officer=s warnings regarding the severity of the allegations against the suspect, the statements are admissible as a voluntary confession unless the suspect can show he or she was in custody or that the statements were otherwise involuntary; and (3) a communication between a person and a clergyman will be privileged under W. Va. Code ' 57-3-9 if (i) the communication was made to a clergyman, (ii) the communication was in the form of a confidential confession or other communication, (iii) the confession or confidential communication was made to the clergyman in his or her professional capacity, and (iv) the confession or confidential communication was made in the course of a religious discipline enjoined by the rules of practice of the clergyman=s denomination.

State of West Virginia v. Robert Lee Greene, No. 23063 (July 11, 1996)(Albright, J.): 196 W. Va. 500, 473 S.E.2d 921:

Rejecting a double jeopardy challenge to a criminal prosecution that followed civil forfeiture of a motor vehicle allegedly used in furtherance of the same criminal activity, the Court held (1) federal and state constitutional double jeopardy provisions are coextensive; (2) to determine whether a penalty is civil or criminal for double jeopardy purposes, a court must decide (i) whether the Legislature intended the penalty to be civil or criminal and (ii) whether the penalty, even if intended to be civil, is so punitive either in its purpose or effect, as to be criminal in nature; and (3) the forfeiture provisions of W. Va. Code ' 60A-7-703(a)(2) and (4) were intended to be civil in nature and are not so punitive either in purpose or effect as to violate principles of double jeopardy.

State of West Virginia v. James Hughes, No. 22978 (July 8, 1996)(Workman, J.): 197 W. Va. 518, 476 S.E.2d 189:

Affirming the denial of credit for time served while on home confinement as a condition of pretrial bail, the Court held that (1) the Home Confinement Act, W. Va. Code ' 62-11B-1, et seq., which permits home confinement as a condition of bail, applies only to post-conviction bail and (2) home confinement as a condition of pretrial bail is neither confinement nor under the Home Confinement Act and, accordingly, time spent on home confinement as a condition of pretrial bail does not count as credit toward any sentence subsequently imposed.

State of West Virginia v. Chester Houston, No. 22950 (July 3, 1996)(Recht, J.): 197 W. Va. 215, 475 S.E.2d 307:

Affirming a defendant=s conviction of delivery of marijuana where the sale to an undercover informant was accomplished only after repeated rebuffs by the defendant, the Court held (1) the entrapment defense is subjective in nature, occurring where the design or inspiration for the crime originates with the police who secure its commission by an accused who otherwise would not have perpetrated it except for the instigation or inducement of police; (2) where competent evidence is offered that police induced the defendant to commit the crime, the burden shifts to the prosecution to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense; (3) upon review of a trial court=s failure to enter a judgment of acquittal based upon an entrapment defense, the evidence will be considered in the light most favorable to the prosecution and reversal will occur only where no rational trier of fact could have found the existence of predisposition beyond a reasonable doubt; (4) the outrageous government conduct defense is objective in nature and does not depend upon negation of a predisposition on the part of the accused; (5) in order to prove the outrageous government conduct defense pursuant to due process provisions of W. Va. Const. art. X, ' 3, and U.S. Const. amend. 5, it must be demonstrated that the conduct was so egregious and reprehensible that it violates notions of fundamental fairness and a universal sense of justice; (6) if outrageous governmental conduct rising to the level of a constitutional due process violation is proven, there may be no prosecution of the crime arising from such conduct; (7) whether outrageous governmental conduct is present depends upon (i) whether the conduct went beyond mere inducement to criminal activity, but rose to the level of the creation or manufacture of the criminal activity solely for the purpose of instituting criminal charges, (ii) whether the conduct was not motivated by a desire to prevent future crime or protect the public at large, (iii) whether the governmental conduct itself constituted criminal or improper activity, and (iv) whether the government appealed to humanitarian instincts, such as sympathy or friendship, or to human frailties, such as avarice, in order to overcome the defendant=s initial resistance; and (8) factual determinations regarding the defense of outrageous government conduct will be reviewed under a clearly erroneous standard and legal conclusions regarding the same will be analyzed under a de novo standard of review.

Beverly S. Jackson Muscatell v. Jane L. Cline, Commissioner, No. 22945 (June 14, 1996) (Albright, J.): 196 W. Va. 588, 474 S.E.2d 518:

State of West Virginia ex rel. Daniel W. Eads, Jr. v. William C. Duncil, Warden, Huttonsville Correctional Center, and the West Virginia Board of Probation and Parole, No. 23279 (June 14, 1996)(Albright, J.): 196 W. Va. 604, 474 S.E.2d 534:

State of West Virginia v. James Stephen Marple, No. 23163 (June 14, 1996)(Cleckley, J.): 197 W. Va. 47, 475 S.E.2d 47:

Affirming defendant=s conviction of first-degree murder with mercy, where an officer=s statement on direct examination that the defendant Arefused to acknowledge his rights. He wouldn=t talk to us,@ in violation of State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977), was not objected to at trial, the Court held (1) the plain error rule creates a limited exception to the general forfeiture policy of R. Evid. 103(a)(1), in that where a trial court=s error seriously affected the fairness, integrity, and public reputation of the judicial process, an appellate court has the discretion to correct such error despite the defendant=s failure to object; (2) a Aplain@ error is one that is clear and uncontroverted at the time of the appeal; and (3) a defendant need not demonstrate that without the allegedly Aplain@ error, he would have been acquitted, but rather need only demonstrate that the trial was adversely affected.

State of West Virginia v. Angela Dawn Miller, No. 23155 (June 14, 1996)(Cleckley, J.): 197 W. Va. 588, 476 S.E.2d 535:

Affirming defendant=s conviction of first-degree murder without mercy where the defendant raised a number of issues, the Court held (1) R. Crim. P. 12(b) requires that a defendant raise any objection to an indictment before trial and without a timely objection the indictment will not be invalidated unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted; (2) the sufficiency of an indictment, reviewed de novo, is determined by practical rather than technical considerations; (3) to succeed on an abuse of discretion claim regarding the judicial management of a criminal trial, e.g., permitting the circuit clerk to read the voir dire questions to the prospective jurors, a defendant must identify a specific rule or statutory violation and demonstrate that the measures or procedures used were prejudicial; (4) whether a prospective juror is biased depends upon whether the juror has such a fixed opinion that he or she could not judge impartially the guilt of the defendant; (5) although a prospective juror may state affirmatively upon voir dire that he or she could set aside any predisposition and decide the case on the evidence, such representations should not be credited if other facts in the record indicate to the contrary; (6) a juror=s bias may be shown by admission or by proof of specific facts demonstrating such prejudice or connection with the parties that bias is presumed; (7) the moving party bears the burden of demonstrating the bias of a prospective juror; (8) a trial court=s discretionary ruling on a motion to strike a prospective juror for cause will be disturbed on appeal only where there is clear and definite evidence that such juror would have been unable to faithfully and impartially perform his or her duties under the instructions of the trial court; (9) when an inference of malice through the use of a deadly weapon instruction is given, the jury should be cautioned that (i) any inference only arises by satisfactory proof that a deadly weapon was used and (ii) where there was legal justification, excuse, or provocation, the inference of malice does not arise and malice must be demonstrated independently of proof of use of a deadly weapon; and (10) if requested by a defendant, a trial court must instruct the jury that the defendant has no obligation to offer evidence on the subject of malice and the jury may not draw any inference from the defendant=s silence.

State of West Virginia v. Thomas Berrill, No. 23050 (June 14, 1996)(Albright, J.): 196 W. Va.578, 474 S.E.2d 508:

Affirming convictions of wearing a mask in public and disrupting a public meeting where the defendant wore a devil=s costume to a school board meeting to protest a high school=s ARed Devil@ mascot, but remanding for resentencing affording the defendant his right of allocution, the Court held (1) because W. Va. Code ' 61-5-19, the disruption of a public meeting statute, is content-neutral, it survives first amendment scrutiny as a reasonable time, place, and manner restriction on the rights of speech and petition; (2) W. Va. Code ' 61-6-22, the wearing a mask in public statute, does not violate the free speech provisions of the federal and state constitutions; and (3) the right of allocution is subject to plain error analysis.

State of West Virginia v. Todd Andrew H., No. 23186 (June 14, 1996)(Cleckley, J.): 196 W. Va. 615, 474 S.E.2d 545:

Where officer who had taken juvenile to police station because he had failed to appear in response to a traffic citation and because the officer believed there might be a juvenile petition pending against the defendant, and later arrested the juvenile when records revealed the defendant was a Arunaway,@ despite being informed by the juvenile that he was living at home and was no longer a runaway, discovered crack cocaine on the juvenile=s person after conducting a search, the Court found both the arrest and search unlawful, holding that (1) a juvenile may be taken into custody without a warrant or court order, under W. Va. Code ' 49-5-8(b)(3), if the officer has reasonable grounds to believe the child is a runaway without just cause from the child=s parents and the child=s health, safety, and welfare are in jeopardy; (2) in order to determine whether a child=s health, safety, and welfare are in jeopardy in order to justify a warrantless arrest, there must be objective evidence that the child is (i) behaving in a self-destructive manner, (ii) exposed to imminent physical harm, (ii) under the influence of drugs or alcohol, or (iv) incoherent and confused; and (3) in the absence of special circumstances justifying the warrantless arrest of a juvenile, the officer should either (i) obtain an arrest warrant or other appropriate court order or (ii) deliver the juvenile to his or her parents.

State of West Virginia v. Virgil Luther Ivey, No. 23079 (June 14, 1996)(McHugh, C.J.): 196 W. Va. 571, 474 S.E.2d 501:

Affirming defendant=s conviction of negligent shooting while hunting and rejecting an argument that the Court should impose a higher standard than ordinary carelessness or negligence, the Court held that under W. Va. Code ' 20-2-57, it is a misdemeanor for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to act with ordinary carelessness or ordinary negligence in shooting, wounding, or killing any human being or livestock, or in destroying any other chattels or property.

State of West Virginia ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, and Matthew R. Hensley, No. 23242 (June 13, 1996)(Recht, J.): 197 W. Va. 37, 475 S.E.2d 37:

Where, following defendant=s acquittal in magistrate court of public intoxication and destruction of property, he was indicted for malicious assault arising from the same bar fight that resulted in the misdemeanor charges, the circuit court dismissed under R. Crim. P. 8(a), the mandatory joinder rule, from which the prosecutor sought a writ of prohibition, with the Court remanding for further hearing and ruling that (1) R. Crim. P. 8(a) requires the prosecuting attorney, in a single charging document, to charge all offenses arising from the same act or transaction, or on two or more acts or transactions, connected together or constituting parts of a common scheme or plan, whether felonies, misdemeanors, or both, provided the offenses occurred in the same jurisdiction and the prosecuting attorney knew or should have known of all the offenses or had an opportunity to present all offenses prior to the time that jeopardy attached in any one of the offenses; (2) the burden of joining multiple offenses under R. Crim. P. 8(a) is upon the prosecution and not the defendant; and (3) the appropriate remedy for violation of R. Crim. P. 8(a) is dismissal of the subsequent charges.

State of West Virginia v. Robert C. Johnson, No. 22954 (May 21, 1996)(McHugh, C.J.): 197 W. Va. 575, 476 S.E.2d 522:

State of West Virginia v. William Harrison Meade, No. 23109 (May 17, 1996)(McHugh, C.J.): 196 W. Va.551, 474 S.E.2d 481:

Affirming defendant=s conviction of attempted murder where one of the assignments of error concerned a trial court directive that the defendant remove his shirt to display his tattoos to the jury, the Court held that where a criminal defendant=s tattoos are relevant to the issue of identity and where the trial court has properly weighed the probative value of such evidence against its potential for unfair prejudice, it is not an abuse of discretion for the trial court to direct the defendant to reveal or display his or her tattoos to a witness and to the jury.

State of West Virginia v. Wayne E. Broughton, No. 22944 (April 8, 1996)(Workman, J.): 196 W. Va. 281, 470 S.E.2d 413:

State of West Virginia v. Floyd Lee No. 22977 (April 8, 1996)(Workman, J.): 196 W. Va. 261, 470 S.E.2d 215:

Affirming defendant=s conviction of first-degree murder without a recommendation of mercy where an otherwise inadmissible statement was admitted to rebut a defense psychiatrist=s testimony that the defendant had a Ablackout@ when the murder was committed, the Court held that although the scope of the impeachment exception to exclusionary rule where a statement was voluntary, but illegally obtained, does not permit the use of such statement to impeach the credibility of defense witnesses, when a defendant offers expert testimony which calls into question the defendant=s mental condition at the time of the commission of the crime, and the expert=s opinion is based, in part, on the defendant=s statements to the expert, the otherwise inadmissible statement may be admitted pursuant to the impeachment exception, either during cross-examination or rebuttal, even if the defendant does not testify.

State of West Virginia v. Jeffrey Scott LaRock, No. 22979 (March 20, 1996)(Cleckley, J.): 196 W. Va. 294, 470 S.E.2d 613:

Affirming a conviction of first-degree murder without mercy arising from the killing of a nineteen-month-old child, holding that (1) in determining the sufficiency of evidence to convict, all evidence, both direct and circumstantial, and all inferences that could be made therefrom, as well as any conflicts or credibility issues, must be viewed in a light most favorable to the prosecution; (2) a defendant is protected from undue prejudice in the admission of evidence pursuant to R. Evi. 404(b) if (i) the prosecution offered the evidence for a proper purpose, (ii) the evidence was relevant, (iii) the trial court clearly weighed its probative value against its potential for unfair prejudice, and (iv) the trial court gave a limiting instruction; (3) a trial judge has discretion to bifurcate the guilt and punishment phases of a case in which the jury is required to make a finding of mercy, particularly where the truth-finding function of the trial process would be harmed by a unitary trial, and should consider the following factors in making such discretionary ruling: (i) whether limiting instructions would be effective; (ii) whether evidence is sought to be introduced solely for the mercy and not the guilt determination, (iii) whether evidence sought to be introduced would be admissible for the mercy but not for the guilt determination, or vice-versa, (iv) whether unfair prejudice or disadvantage can be demonstrated by a unified or bifurcated proceeding, (v) whether a unitary trial would prevent the introduction of evidence for purposes of the mercy determination, and (vi) whether bifurcation would unreasonably lengthen the trial; (4) the failure to bifurcate the guilt and punishment phases of a case in which the jury is required to make a finding of mercy will constitute reversible error where Acompelling prejudice@ to the defendant resulted, amounting to fundamental unfairness; and (5) the plain error rule applies only to avoid a miscarriage of justice, where the fairness, integrity, or public reputation of the proceedings were seriously impaired by the alleged error.

State of West Virginia v. John A. Lacy, No. 23055 (February 15, 1996)(Cleckley, J.): 196 W. Va. 104, 468 S.E.2d 719:

Remanding for another suppression hearing where the scope of a search exceeded the property mentioned in the warrants executed prior to such search, but where officers asserted that expansion of search was prompted by the discovery of a weapon and ammunition, the Court held (1) when reviewing a ruling on a motion to suppress, an appellate court should construe all facts in the light most favorable to the prosecution, with particular deference to the factual findings of the trial court; (2) although factual findings relating to a suppression motion are subjected to only a clearly erroneous standard of review, the ultimate decision regarding whether the a search or seizure was reasonable is a question of law to be reviewed de novo; (3) a trial court=s denial of a motion to suppress will be affirmed unless (i) it is unsupported by substantial evidence, (ii) it is based upon an erroneous interpretation of the law, or (iii) it is clearly wrong; (4) a warrant must particularly describe the things to be seized and the sufficiency of a warrant in this regard depends upon whether an officer reading the description in the warrant would reasonably know what items are to be seized; (5) where detailed specificity is impossible in a warrant, generic language is permissible if it particularizes the types of items to be seized; (6) when a warrant is the authority for a search, the executing officer must act within the confines of the warrant; (7) police may not use an initially lawful search to conduct a broad warrantless search; (8) police may interfere with a citizen=s fourth amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and justified for law enforcement purposes; (9) to determine whether an intrusion is minimal, the reviewing judge must examine the interests implicated when police feel a search for weapons is necessary to secure the premises during a search and the privacy interests of the citizen to be free of an unreasonable search and seizure in his or her residence; (10) only when police face a circumstance, such as the need to secure a searched premises, and a reasonable belief that links the sought-after information with the perceived danger, is it constitutional to conduct a limited search of private premises without a search warrant; (11) neither exigent circumstances nor probable cause is required for a protective sweep for weapons as long as, analyzing the situation presented at the scene from the perspective of the officer, (i) there were specific, articulable facts indicating danger and (ii) the officer=s suspicion of danger to the officer or others was reasonable; and (12) a Aprotective search@ is (i) a quick and limited search of premises for weapons once an officer has individualized suspicion that a dangerous weapon is present and poses a threat to the safety of the officer or others, (ii) a cursory visual inspection limited to areas where the suspected weapon could be located, and (iii) must terminate once the weapon is located and secured.

State of West Virginia v. Frederick Sears, Jr., No. 23049 (February 14, 1996)(Cleckley, J.): 196 W. Va. 71, 468 S.E.2d 324:

Where defendant, who pleaded guilty to wanton endangerment with a firearm under W. Va. Code ' 61-7-12, was sentenced to 3-5 years pursuant to W. Va. Code ' 62-12-13, which renders those convicted of a felony with the use of a firearm parole ineligible for three years, the Court reversed, holding that (1) once a defendant establishes a prima facie claim that double jeopardy principles have been violated, the burden shifts to the prosecution to show by a preponderance of the evidence that double jeopardy principles do not bar the prosecution or punishment at issue; (2) the purpose of the double jeopardy clause is to ensure that sentencing courts do not exceed, by imposing multiple punishments, the limits prescribed by the legislature, which has the substantive power to define crimes and their punishments; (3) whether imposition of a statutory penalty would violate double jeopardy principles, a court must examine (i) whether the statute serves only a remedial purpose or serves to punish and deter criminal conduct and (ii) whether the penalty is linked to the commission of a specific offense; (4) under Blockburger, if two statutes contain identical elements of proof, the presumption is that double jeopardy principles have been violated unless there is a clear and definite statement by the legislature that cumulative punishment is permissible; and (5) a conviction which is used as the predicate to establish the crime of wanton endangerment with a firearm cannot also be used to enhance a defendant=s punishment under W. Va. Code ' 62-12-13, the delayed parole eligibility statute, in the absence of explicit legislative authority.

State of West Virginia v. Charles Omechinski, No. 23032 (February 14, 1996) (Cleckley, J.): 196 W. Va. 41, 468 S.E.2 173:

Affirming a conviction where the defendant complained that his witness was permitted to testify as a rebuttal witness for the prosecution after the witness discussed her testimony with another witness and the prosecutor in violation of a sequestration order, the Court held (1) R. Evid. 615, which is designed to discourage fabrication, collusion, and the shaping of testimony to conform or respond to that of other witnesses, makes sequestration a matter of right; (2) R. Evid. 615 applies to rebuttal witnesses and precludes witnesses from discussing their testimony with other witnesses who are subject to recall; (3) witnesses should be clearly directed, when R. Evid. 615 is invoked, that they must leave the courtroom, with the exceptions that the rule permits, and that they are not to discuss with anyone other than counsel the case or what their testimony has been or will be or what occurs in the courtroom, but in the absence of a specific request, a party may not claim error as a result of the failure to instruct as to the impact of a sequestration order; and (4) in determining whether to exclude a rebuttal witness=s testimony under R. Evid. 615, a trial court should consider (i) the significance of the testimony, (ii) whether the testimony is subject to tailoring, (iii) whether cross-examination or other evidence could reveal any problems with the testimony, (iv) whether the testimony encompasses the same ground as that of other witnesses, (v) the order of the testimony, and (vi) whether there is any potential for bias that may motivate the rebuttal witness to tailor his or her testimony.

State of West Virginia v. Russell E. Garrett, No. 22832 (December 11, 1995)(McHugh, C.J.): 195 W. Va. 630, 466 S.E.2d 481:

Affirming a conviction of first-degree murder without mercy where there was some dispute, because of the deterioration of the remains, about whether the victim=s death was by criminal means, the Court held that although corpus delicti may not be established solely by an accused=s inculpatory statement, it is sufficient if independent evidence, when considered in conjunction with such statement, establishes a crime beyond a reasonable doubt.

State of West Virginia v. Elizabeth Ladybird Jenkins, No. 22722 (December 11, 1995)(McHugh, C.J.): 195 W. Va. 620, 466 S.E.2d 471:

Overturning an uttering conviction where the trial judge precluded the defendant from submitting a handwriting exemplar to the jury, the Court held that (1) preliminary questions of authentication and identification under R. Evid. 901 are conditional and, accordingly, are governed by R. Evid. 104(b); (2) in order to be admissible, the party offering evidence under R. Evid. 901 must make a prima facie showing that Athe matter in question is what its proponent claims;@ (3) in making a determination of authenticity or identity under R. Evid. 901, it is the role of the trier of fact, and not the trial judge, to determine whether the evidence is credible, with the trial judge=s role limited to only determining whether a reasonable juror could find in favor of authenticity or identity; (4) a finding of authenticity or identity does not guarantee admissibility, which must be determined under another rule of evidence; (5) a trial judge=s ruling on authenticity or identity will not be disturbed on appeal unless there has been an abuse of discretion; (6) although evidentiary rulings are discretionary, when an evidentiary ruling deprives a criminal defendant of certain procedural due process rights, such as the right of confrontation, the right to present evidence, or the right to counsel, reversible error may be found.

State of West Virginia v. Earnest Sutphin, No. 22833 (December 7, 1995)(Recht, J.): 195 W. Va. 551, 466 S.E.2d 402:

Affirming a second-degree murder conviction where a juror visited the home of a witness and discussed the case during the trial and where the victim=s father was permitted to testify regarding the defendant=s threat to kill the victim if she ever left him, the Court held (1) a judge has a duty to conduct a Remmer hearing where there are allegations of improper communications with jurors during a trial and to thereafter make findings and conclusions as to whether such communications were unduly prejudicial so as to deny the defendant a fair trial; (2) hearsay within hearsay is nevertheless admissible, under R. Evid. 805, if each level of hearsay is governed by one of the exceptions to the hearsay rule; (3) a threat of future action is not hearsay under R. Evid. 801(d)(2) as against a declarant/party; (4) a threat of future conduct is a manifestation of a criminal defendant=s state of mind and therefore is admissible as an exception to the hearsay rule contained in R. Evid. 803(3); (5) in order to qualify as an excited utterance under R. Evid. 803(2), the declarant must have (i) experienced a startling event or condition, (ii) reacted while under the stress or excitement of the event and not from reflection and fabrication, and (iii) the statement must relate to the startling event or condition; and (6) in order to determine whether an allegedly Aexcited utterance@ was made under the stress or excitement of the event and not from reflection and fabrication, the trial court must consider (i) the lapse of time between the stimulus and the statement, (ii) the age, physical condition, and mental state of the declarant, (iii) the nature of the stimulus, and (iv) the nature of the statement.

State of West Virginia ex rel. Ronald Gene Daniel v. Carl Legursky, Warden, West Virginia Penitentiary, No. 22917 (November 17, 1995)(Cleckley, J.) 195 W. Va. 314, 465 S.E.2d 416:

Affirming the denial of post-conviction habeas corpus relief where primary ground asserted was ineffective assistance of counsel, the Court held (1) the fulcrum for any ineffective assistance of counsel claim is the adequacy of counsel=s investigation; (2) unless there is an inadequate investigation of the case, there is a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and judicial scrutiny of such conduct must be highly deferential; (3) in any post-conviction proceeding, trial counsel=s effectiveness should be determined by examining what was known and reasonable at the time of counsel=s representation; (4) a claim of ineffective assistance of counsel may be rejected if the petitioner fails to establish either that (i) counsel=s performance was deficient under an objective standard of reasonableness or (ii) there is a reasonable probability that, but for counsel=s unprofessional conduct, the result of the proceeding would have been different; and (5) to be successful, a claim of ineffective assistance of counsel must relate to a critical stage in the adversary proceedings.

State of West Virginia ex rel. Robert E. Morgan v. George Trent, Warden, Mt. Olive Correctional Center, AND Larry F. Dean v. William C. Duncil, Warden, Huttonsville Correctional Center, Nos. 22886 and 22847 (November 17, 1995)(Miller, J.): 195 W. Va. 257, 465 S.E.2d 257:

Rejecting post-conviction habeas corpus challenges to first-degree sexual assault convictions where the victims had not reached their twelfth birthdays and the relevant statute required them to be Aeleven years old or less,@ the Court held that, under a common sense approach to construction of the phrase, W. Va. Code ' 61-8B-3(a)(2), applies to a person who is eleven years old, but has not reached his or her twelfth birthday.

State of West Virginia v. Mabel Lewis, aka Mabel Beasley, No. 22789 (November 16, 1995) (Recht, J.): 195 W. Va. 282, 465 S.E.2d 384:

Affirming a sentencing order that conditioned probation on eight months of home confinement and four months of incarceration, where the statutory minimum sentence was one year, Court held that under W. Va. Code ' 62-12-9(b), home incarceration is not considered the same as jail incarceration and, accordingly, time spent in home incarceration does not count toward the one-third time of the minimum statutory sentence, which can be ordered as a condition of probation.

State of West Virginia v. Sean M. Harris, No. 22815 (October 27, 1995)(Cleckley, J.): 195 W. Va. 43, 464 S.E.2d 363:

Affirming the transfer of a youthful offender to the penitentiary without a hearing for purposes of reconsidering the offender=s sentence, the Court held that except in specific, well-defined circumstances, a pretransfer hearing pursuant to W. Va. Code ' 49-5-16(b) is unnecessary when (1) all the significant information is in the breast of the court; (2) there is no significant dispute regarding the accuracy and relevancy of the information; and (3) there was a knowing and intelligent waiver of W. Va. Code ' 49-5-16(b) at the time the underlying plea agreement was accepted by the court.

State of West Virginia ex rel. Ira Michael Brewer, II v. Honorable Larry V. Starcher, Judge of the Circuit Court of Monongalia County, and Susan Tucker, Prosecuting Attorney for Monongalia County, No. 22966 (October 27, 1995)(Cleckley, J.): 195 W. Va. 185, 465 S.E.2d 185:

State of West Virginia v. Dale Edward Guthrie, No. 22710 (July 19, 1995)(Cleckley, J.): 194 W. Va. 657, 461 S.E.2d 163:

State of West Virginia v. Kanju Osakalumi, No. 22614 (July 19, 1995)(McHugh, C.J.): 194 W. Va. 758, 461 S.E.2d 504:

State of West Virginia ex rel. Omarri Hill v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; and Larry F. Parsons, Administrator, South Central Regional Jail, No. 22881 (July 19, 1995)(Fox, J.): 194 W. Va. 688, 461 S.E.2d 194:

Directing the immediate release of a prisoner who had successfully completed his period of incarceration under the youthful offender statute, but whom the trial court refused to release on the grounds that the prisoner had not been entitled to youthful offender treatment and that the statute unconstitutionally restricted the sentencing options of the circuit court, the Court held (1) W. Va. Code ' 25-4-6 provides that a juvenile offender who successfully completes his training program "shall be returned to the jurisdiction of the court which originally committed him. He shall be eligible for probation for the offense with which he is charged, and the judge of the court shall immediately place him on probation;" (2) a sentence which is technically infirm, but generally and substantially complies with the spirit and purpose of the law, is not void, but merely voidable, and if the prosecution fails to protest such sentence by timely objection, such failure may constitute waiver of the right to challenge the legality of the sentence; and (3) the discretionary authority conferred on the commissioner of corrections under W. Va. Code '' 25-4-6 and 49-5-16(b) does not unconstitutionally intrude upon the sentencing authority of courts.

State of West Virginia v. Jacob W. Beard, No. 22504 (July 19, 1995)(Workman, J.): 194 W. Va. 740, 461 S.E.2d 486:

State of West Virginia v. Linda Hardesty, No. 22593 (July 18, 1995)(Fox, J.): 194 W. Va. 732, 461 S.E.2d 478:

State of West Virginia v. Bruce Allen Lilly AND State of West Virginia v. Cecil Wayne Lilly, Nos. 22541 and 22542 (July 17, 1995)(Fox, J.): 194 W. Va. 595, 461 S.E.2d 101:

State of West Virginia v. Forrest Wood, No. 22575 (July 14, 1995)(McHugh, C.J.): 194 W. Va. 525, 460 S.E.2d 771:

State of West Virginia ex rel. Jamal Adeen Azeez v. Michael Mangum, Sheriff of Raleigh County, No. 22221 (July 13, 1995) (Workman, J.): 195 W. Va. 163, 465 S.E.2d 163:

State of West Virginia v. Henry Donovan Buzzard, No. 22531 (July 11, 1995)(Workman, J.): 194 W. Va. 544, 461 S.E.2d 50:

State of West Virginia v. Ronald Lee Wyne, No. 22346 (July 11, 1995)(Miller, J.): 194 W. Va. 315, 460 S.E.2d 450:

Affirming a life recidivist conviction where the defendant complained that the trial court took judicial notice of the triggering offense, the Court affirmed, holding that (1) a life recidivist penalty may be imposed under W. Va. Code ' 61-11-18 if the defendant has been convicted of two prior felonies in addition to the third felony which triggers the life recidivist proceeding and (2) a recidivist proceeding does not require proof of the triggering offense because such triggering offense must be proven prior to the invocation of the recidivist proceeding.

State of West Virginia v. Craig G. Phillips, No. 22633 (July 11, 1995)(Cleckley, J.): 194 W. Va. 569, 461 S.E.2d 75:

Reversing a second-degree murder conviction where statements of victim were admitted regarding her intention to divorce the defendant due to his infidelities, the Court held (1) R. Evid. 803(1) permits admission of a hearsay statement under the present sense impression exception if (i) the statement was made at the time or shortly after the event, (ii) the statement describes the event, and (iii) the event giving rise to the statement was within the declarant's personal knowledge; (2) a separate showing of trustworthiness, e.g., corroborating evidence, may be considered, but is not required, in determining whether to admit a hearsay statement under the present sense impression exception; (3) R. Evid. 803(3) permits admission of a hearsay statement under the state-of-mind exception, but the statement meet the relevancy requirements of R. Evid. 401 and 402; (4) if the declarant's state-of-mind is irrelevant to resolution of the case, the declarants hearsay statement is inadmissible; and (5) although forcing the defendant to use one of his or her peremptory challenges to remove a prospective juror who should have been removed for cause does not violate the defendant's constitutional right to trial by an impartial juror in the absence of a showing of prejudice, such use of a peremptory challenge violates W. Va. Code ' 62-3-3 and constitutes reversible error.

State of West Virginia ex rel. Clayton Collins v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, AND State of West Virginia ex rel. John Leslie Peeples v. Honorable David W. Knight, Judge of the Circuit Court of Mercer County, Nos. 22781 and 22783 (June 19, 1995) (McHugh, C.J.): 194 W. Va. 390, 460 S.E.2d 636:

Upholding the constitutionality of a new statutory scheme providing for a more limited right of appeal from a misdemeanor conviction in magistrate court, the Court held that (1) W. Va. Code ' 50-5-13, which does not provide a de novo appeal of a misdemeanor magistrate court conviction, does not violate W. Va. Const. art. III, ' 14 or art. VIII, ' 10; (2) because W. Va. Code ' 50-5-13 provides meaningful appellate review by the circuit court, a criminal defendant's due process rights under W. Va. Const. art. III, ' 10 and U.S. Const. amend. xiv, ' 1, are not violated when a nonlawyer presides over the jury trial afforded; and (3) changes to criminal procedure do not violate the ex post facto principles of W. VA. Const. art. III, ' 4 and U.S. Const. art. I, ' 1, unless they (i) alter the definition of a crime so that what is currently punished as a crime was an innocent act when committed, (ii) deprive the accused of a defense which existed at the time the crime was committed, or (iii) increases the punishment for the crime after it was committed.

Lawrence A. Carte v. Jane L. Cline, Commissioner of the West Virginia Division of Motor Vehicles, No. 22530 (June 16, 1995)(Fox, J.): 194 W. Va. 233, 460 S.E.2d 48:

State of West Virginia v. James A. Roy, No. 22695 (June 15, 1995)(Cleckley, J.): 194 W. Va. 276, 460 S.E.2d 277:

State of West Virginia v. Kenneth Jay Mason, No. 22581 (June 15, 1995)(Cleckley, J.): 194 W. Va. 221, 460 S.E.2d 36:

State of West Virginia ex rel. John Doe, Jane Doe, and Jane Roe v. Honorable Joseph G. Troisi, Special Judge of the Circuit Court of Kanawha County, and Michele Rusen, Special Prosecuting Attorney for Kanawha County, No. 22817 (May 18, 1995)(Cleckley, J.): 194 W. Va. 28, 459 S.E.2d 139:

State of West Virginia v. Susan Miller, No. 22571 (May 18, 1995)(Cleckley, J.): 194 W. Va. 3, 459 S.E.2d 114:

State of West Virginia v. Shawn Satterfield, No. 22374 (March 27, 1995)(McHugh, J.): 193 W. Va. 503, 457 S.E.2d 440:

State of West Virginia v. Kimberly Don Bradshaw, No. 22302 (March 27, 1995)(Cleckley, J.): 193 W. Va. 519, 457 S.E.2d 456:

State of West Virginia v. Eleanor Chambers, No. 22336 (March 24, 1995)(Neely, C.J.): 194 W. Va. 1, 459 S.E.2d 112:

State of West Virginia v. Samuel Martin Moore, No. 22347 (March 24, 1995)(Neely, C.J.): 193 W. Va. 642, 457 S.E.2d 801:

Affirming a conviction of first-degree sexual abuse and burglary where, in violation of statute, the defendant was examined for competence by only a psychologist, and not a psychiatrist, and where the defendant complained that inculpatory statements were the product of his intoxication and mental retardation, the Court held that (1) when a motion for mental status evaluation is filed to determine sanity or competency, an examination should be conducted by "one or more psychiatrists, or a psychologist and a psychiatrist" in accordance with W. Va. Code ' 27-6A-1, but failure to do so may be deemed, when the circumstances warrant, to be harmless error and (2) in determining the voluntariness of a confession, the trial court must assess the totality of all the surrounding circumstances, and no one factor, including mental retardation or intoxication at the time of the interrogation, is alone sufficient to invalidate a confession.

State of West Virginia v. Marvin D. Sugg, No. 22486 (March 10, 1995)(Cleckley, J.): 193 W. Va. 388, 456 S.E.2d 469:

State of West Virginia v. Doug Jones, No. 22377 (March 6, 1995)(Cleckley, J.): 193 W. Va. 378, 456 S.E.2d 459:

State of West Virginia v. Gerald D. Mullins, No. 22514 (March 3, 1995)(Fox, J.): 193 W. Va. 315, 456 S.E.2d 42:

State of West Virginia ex rel. Aristides Rojas v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County, and Pamela Games-Neely, Prosecuting Attorney for Berkeley County, No. 22599 (February 23, 1995)(Fox, J.): 193 W. Va. 206, 455 S.E.2d 575:

State of West Virginia v. Samuel E. Adams, AND State of West Virginia ex rel. Samuel Adams v. Delbert Harrison, Sheriff of Putnam County, Nos. 22398 and 22397 (February 17, 1995)(Cleckley, J.): 193 W. Va. 277, 456 S.E.2d 4:

State of West Virginia ex rel. Michele L. Rusen, Prosecuting Attorney for Wood County v. Honorable George W. Hill, Judge of the Circuit Court of Wood County, and Lisa Harder, No. 22441 (December 21, 1994) (Cleckley, J.): 193 W. Va. 133, 454 S.E.2d 427:

State of West Virginia ex rel. Albert Kees v. Honorable David H. Sanders, Judge of the Circuit Court of Berkeley County, No. 22368 (December 21, 1994)(McHugh, J.): 192 W. Va. 602, 453 S.E.2d 436:

Rejecting an attempt to force a trial judge to remand a traffic case to municipal court for a new trial with court-appointed counsel, the Court held that in a municipal court proceeding on a minor traffic offense, where a judge states, in advance of trial, that notwithstanding the applicable provision which permits a jail sentence, the judge will under no condition impose one nor impose a fine so onerous that the defendant cannot pay it thereby subjecting him to a contempt charge which may result in a jail sentence, then appointment of counsel pursuant to W. Va. Code ' 29-21-2(2) is not required.

State of West Virginia v. David Duane Allen, No. 22240 (December 15, 1994)(Cleckley, J.): 193 W. Va. 172, 455 S.E.2d 541:

State of West Virginia v. Helen Jean Honaker, No. 21860 (December 15, 1994)(Cleckley, J.): 193 W. Va. 51, 454 S.E.2d 96:

State of West Virginia ex rel. William A. Allen v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, No. 22359 (December 9, 1994)(Workman, J.): 193 W. Va. 32, 454 S.E.2d 77:

Refusing to block a DUI prosecution based, in part, on blood alcohol tests performed by hospital personnel, the Court held (1) W. Va. Code ' 17C-5-4 does not govern the admissibility of blood alcohol tests conducted prior to the defendant's arrest at the direction of a treating physician or other medical personnel and (2) medical records regarding blood alcohol tests ordered by medical personnel for diagnostic purposes are subject to subpoena and not inadmissible by virtue of W. Va. Code ' 57-5-4d.

State of West Virginia v. Harry E. Farmer, No. 22162 (December 9, 1994)(McHugh, J.): 193 W. Va. 84, 454 S.E.2d 378:

Affirming a 90-year sentence for kidnapping, the Court held that a trial judge, for purposes of imposing a sentence on a defendant, convicted of kidnapping, for a period of not less than twenty or not less than ten years, has discretion to make findings as to whether the defendant inflicted bodily harm on the victim and as to whether ransom, money, or other concession has been paid or yielded for return of the victim, and because such findings are solely for the purposes of sentencing, and are not elements of the crime of kidnapping, a defendant's rights to due process and trial by jury are not violated by W. Va. Code ' 61-2-14a.

State of West Virginia v. Brian Hopkins, No. 22079 (December 8, 1994)(Neely, J.): 192 W. Va. 483, 453 S.E.2d 317:

State of West Virginia v. Lyle B. McGinnis, Jr., No. 22031 (December 8, 1994)(Cleckley, J.): 193 W. Va. 147, 455 S.E.2d 516:

State of West Virginia v. Gail B. Stuart, Jr., No. 22033 (December 8, 1994)(Cleckley, J.): 192 W. Va. 428, 452 S.E.2d 886:

State of West Virginia ex rel. R.L. v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, and Steven R. Bratke, Special Prosecuting Attorney for the State of West Virginia, No. 22495 (December 8, 1994)(Neely, J.): 192 W. Va. 435, 452 S.E.2d 893:

State of West Virginia v. Larry Gene Kelley, Jr., No. 22205 (November 21, 1994)(McHugh, J.): 192 W. Va. 124, 451 S.E.2d 425:

State of West Virginia v. Mark Wayne Phalen, No. 22077 (November 21, 1994)(McHugh, J.): 192 W. Va. 267, 452 S.E.2d 70:

Affirming a forgery conviction arising from the defendant's false signature on a fingerprint card, the Court held that (1) when a person who has given a false name later admits that the name given was false, whether the defendant had the requisite intent under W. Va. Code ' 61-4-5 to commit forgery is a question of fact for the jury and (2) giving a false name on a police fingerprint card may constitute forgery since the act prejudices the legal rights of the State by frustrating its authority to administer justice.

State of West Virginia v. Thomas Russell Leroy Derr, No. 22101 (November 18, 1994) (Cleckley, J.): 192 W. Va .165, 451 S.E.2d 731:

State of West Virginia v. Robert Russell Farley, No. 22139 (November 18, 1994)(Cleckley, J.): 192 W. Va. 247, 452 S.E.2d 50:

State of West Virginia v. Melody Long, No. 22195 (November 2, 1994)(Miller, J.): 192 W. Va. 109, 450 S.E.2d 806:

In a decision involving the sentencing options available for defendants convicted of first or second-offense DUI, the Court held that W. Va. Code ' 17C-5-2(m) permits home detention and W. Va. Code ' 62-11B-5(1)(A) permits authorization to travel to and from the offender's place of employment during the period of home detention, for individuals convicted of first or second-offense DUI.

State of West Virginia v. Ronald Dillon, No. 21807 (July 20, 1994)(Workman, J.): 191 W. Va. 648, 447 S.E.2d 583:

Affirming the drug convictions of a defendant who complained that the introduction of audio recordings of conversations he had with a police informant who failed to appear for trial violated his right of confrontation, the Court held that proof of consent for purposes of electronic intercept under W. Va. Code '' 62-1D-3 and 62-1D-6 need not be by the consenting person's testimony, but may be demonstrated through other evidence, such as the testimony of the person to whom consent was given.

State of West Virginia v. Mabel Lewis aka Mabel Beasley, No. 21835 (July 19, 1994) (Workman, J.): 191 W. Va. 635, 447 S.E.2d 570:

Overturning the sentence of an habitual shoplifter, the Court held that, prior to 1994 amendment, W. Va. Code ' 61-3A-3(c), which prohibited probation for third-offense shoplifters, violated the proportionality principle contained in the cruel and unusual punishment clauses of U.S. Const. amend. VIII and W. Va. Const. art. III, ' 5.

State of West Virginia v. Robert Earl Kirkland, Jr., No. 21759 (July 15, 1994) (Workman, J.): 191 W. Va. 586, 447 S.E.2d 278:

State of West Virginia ex rel. Marshall Goff v. Honorable Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Ron Watkins, Sheriff of Marion County, No. 22088 (June 17, 1994)(McHugh, J.): 191 W. Va. 473, 446 S.E.2d 695:

Reversing a trial court's refusal to grant good-time and trustee credit for a prisoner consecutively sentenced to a jail term of six months as a condition of probation on one count and six-months on another count, the Court held (1) a person who is ordered to serve a six-month period in the county jail as a condition of probation for one offense consecutive to an additional jail term of six-months on another offense is eligible for good crime credit pursuant to W. Va. Code ' 7-8-11 and (2) when a person is ordered to confinement in the county jail as a condition of probation and performs work as a trustee within the jail, that person is entitled to a reduction in sentence in accordance with the provisions of W. Va. Code ' 17-15-4.

State of West Virginia v. Lanny Crouch, Jr., No. 21883 (May 26, 1994)(Neely, J.): 191 W. Va. 272, 445 S.E.2d 213:

Affirming a first-degree murder conviction in which the defendant complained that a private attorney hired by the victim's family virtually handled the entire case, the Court held that, pursuant to ' 7-7-8, the employment of a practicing lawyer to assist the State in a criminal prosecution is not prohibited.

In the Matter of an Investigation of the West Virginia State Police, Serology Division, No. 21973 (May 20, 1994)(Miller, J.): 191 W. Va. 224, 445 S.E.2d 165:

State of West Virginia ex rel. Eustace Brown, Derek Johnson, Vincent Nelson, and Donnie Smalls v. Jerry Dietrick, Administrator, Eastern Regional Jail, and the Honorable Gail Boober, Jefferson County Magistrate, No. 21904 (April 20, 1994) (Miller, J): 191 W. Va. 169, 444 S.E.2d 47:

State of West Virginia ex rel. John R. Modie v. Honorable George W. Hill, Jr., Judge of the Court of Wood County, No. 22126 (March 28, 1994)(McHugh, J.): 191 W. Va. 100, 443 S.E.2d 257:

Prohibiting trial of a defendant held on a detainer lodged in Ohio more than 180 days prior to his trial, the Court held that the failure of the State to bring an accused to trial within 180 days following the State's receipt of the petitioner's notice of imprisonment and request for final disposition, pursuant to the Agreement on Detainers, W. Va. Code ' 62-14-1, mandates dismissal of the indictments pending against the petitioner, where there was no motion for continuance made by the State and the delay was not reasonable or necessary.

State of West Virginia v. Ronnie Wayne Jenkins, No. 21775 (March 25, 1994)(Miller, J.): 191 W. Va. 87, 443 S.E.2d 244:

State of West Virginia v. William Ulysses Mayo, Jr., No. 21760 (March 25, 1994)(Miller, J.): 191 W. Va. 79, 443 S.E.2d 236:

State of West Virginia v. Harry Jarrell, No. 21625 (February 18, 1994)(Brotherton, J.): 191 W. Va. 1, 442 S.E.2d 223:

State of West Virginia v. Thomas J. Blair, III, No. 21558 (December 14, 1993)(McHugh, J.): 190 W. Va. 425, 438 S.E.2d 605:

Reversing the conviction of a local water company president for providing inadequate facilities, the Court held that the statute under which he was prosecuted, W. Va. Code ' 24-3-1 is unconstitutionally vague because the language "establish and maintain adequate and suitable facilities" and "perform such service . . . as shall be reasonable, safe and sufficient for the security and convenience of the public" does not provide adequate standards for adjudication or set forth with requisite clarity the specific acts prohibited.

State of West Virginia v. David Leadingham, No. 21678 (December 14, 1993)(McHugh, J.): 190 W. Va. 482, 438 S.E.2d 825:

State of West Virginia v. George W.H., No. 21658 (December 13, 1993)(Miller, J.): 190 W. Va. 558, 439 S.E.2d 423:

State of West Virginia v. Charles R. Kilmer, No. 21504 (December 10, 1993)(Workman, C.J.): 190 W. Va. 617, 439 S.E.2d 881:

Affirming a conviction of first degree murder without mercy, the Court rejected an argument that due process requires the taping of police interrogations, holding that W. Va. Const. art. III, ' 10, does not mandate that police electronically record custodial interrogations.

State of West Virginia v. Ronzel Richards, No. 21564 (November 23, 1993)(Brotherton, J.): 190 W. Va. 299, 438 S.E.2d 331:

Reversing two malicious wounding convictions where the prosecution introduced evidence of prior convictions, the Court held (1) the mentioning of character issues by defense counsel during opening statements does not open the door for the introduction of otherwise inadmissible character evidence, and (2) the state may not seek W. Va. Code ' 62-12-2 enhancement for use of a firearm during the commission of a crime unless it gives the defendant notice pursuant to Syllabus Point 2 of State v. Johnson, 187 W. Va. 360, 419 S.E.2d 300 (1992).

In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, No. 21973 (November 10, 1993)(Miller, J.): 190 W. Va. 321, 438 S.E.2d 501:

State of West Virginia v. Lisa A. Nelson, No. 21568 (October 14, 1993)(Neely, J.): 190 W. Va. 73, 436 S.E.2d 308:

State of West Virginia v. Dawnella Rogers, No. 21516 (July 22, 1993)(Workman, C.J.): 189 W. Va. 730, 434 S.E.2d 402:

State of West Virginia v. Lisa A. Nelson, No. 21273 (July 22, 1993)(Workman, C.J.): 189 W. Va. 778, 434 S.E.2d 697:

Affirming a conviction of fraudulently secreting a public record for a police records clerk who falsely reported a criminal record, the Court rejected the defense that as custodian of the record, she could not be convicted under W. Va. Code ' 61-5-3, holding that a position of mere public employment which requires providing information to the public based upon a review of public records is not equivalent to an officer in lawful charge of the public records for purposes of W. Va. Code ' 61-5-3.

State of West Virginia v. Charles Daniel O'Donnell, No. 21143 (July 22, 1993)(Workman, C.J.): 189 W. Va. 628, 433 S.E.2d 566:

State of West Virginia ex rel. Cindy Walls v. Patricia Noland, as a Magistrate of Jefferson County, and Michael D. Thompson, as Prosecuting Attorney, No. 21495 (July 16, 1993) (Brotherton, J.): 189 W. Va. 603, 433 S.E.2d 541:

Upholding the constitutionality of the worthless check statute, the Court held that the statutory complaint form contained in W. Va. Code ' 61-3-39f is constitutionally sufficient because it requires a detailed itemization of the relevant facts and provides a sufficient basis for an independent determination of whether there is probable cause to proceed with a prosecution.

State v. Gary F., an infant, and Debbie F., his mother, No. 21412 (June 28, 1993)(Workman, C.J.): 189 W. Va. 523, 432 S.E.2d 793:

State of West Virginia v. Sean Romane Harris, No. 21400 (June 9, 1993)(Neely, J.): 189 W. Va. 423, 432 S.E.2d 93:

State of West Virginia v. Ronald Dean Rummer, No. 21095 (May 25, 1993)(Miller, J.): 189 W. Va. 369, 432 S.E.2d 39:

Where defendant allegedly attacked victim, first grabbing her vagina and then her breasts, the Court sustained his conviction of two counts of sexual abuse, holding that a defendant who commits two or more of the separate acts of sexual contact defined in W. Va. Code ' 61-8B-1(6) may be convicted of each separate act without a violation of double jeopardy principles.

State of West Virginia v. Timothy Layton, No. 21173 (April 27, 1993)(Brotherton, J.): 189 W. Va. 470, 432 S.E.2d 740:

State of West Virginia ex rel. Angela McClanahan v. Honorable John Hamilton, Judge of the Circuit Court of Pendleton County, No. 21523 (April 23, 1993)(Miller, J.): 189 W. Va. 290, 430 S.E.2d 569:

Andrew Keith Peyatt v. Donald L. Kopp, Magistrate, and Edmund J. Matko, Prosecuting Attorney for Harrison County, No. 20999 (March 12, 1993)(McHugh, J.): 189 W. Va. 114, 428 S.E.2d 535:

State of West Virginia ex rel. Jeffrey B. Reed, Prosecuting Attorney for Wood County v. Honorable Daniel B. Douglass, Judge of the Circuit Court of Wood County, and Dean Ray Buckley, No. 21520 (February 16, 1993)(Miller, J.): 189 W. Va. 56, 427 S.E.2d 751:

State of West Virginia v. Susan A. Carrico, No. 21299 (February 11, 1993)(Neely, J.): 189 W. Va. 40, 427 S.E.2d 474:

State of West Virginia ex rel. Patricia V. Kutsch, Prosecuting Attorney of Ohio County v. Honorable Ronald E. Wilson, Circuit Judge of Ohio County, and Earl Thomas Beals, No. 21530 (February 11, 1993) (Neely, J.): 189 W. Va. 47, 427 S.E.2d 481:

Reversing a trial court's decision to suppress an Ohio conviction which was to be introduced in conjunction with the defendant's charge of thirdoffense DUI, the Court held that a person convicted of driving under the influence under an Ohio statute that makes it an offense to operate a motor vehicle with "a concentration of ten hundredths of one gram or more by weight of alcohol per two hundred liters of his breath" has committed an offense with "the same elements" as the offense set forth in W. Va. Code ' 17C-5-2(d)(1)(E) of operating a motor vehicle with "an alcohol concentration in his blood of ten hundredths of one percent or by weight."

Curtis Mangus v. Honorable Charles E. McCarty, Judge of the Circuit Court of Calhoun County and Patricia L. McCartney, Probation Officer for Calhoun County, No. 21310 (December 18, 1992)(Workman, J.): 188 W. Va. 563, 425 S.E.2d 239:

State of West Virginia v. David White, No. 20962 (December 17, 1992)(Workman, J.): 188 W. Va. 534, 425 S.E.2d 210:

Reversing a trial court's imposition of a jail sentence of five months and twenty-nine days as a condition of the granting of five years' probation, the Court held that if a trial court imposes a jail sentence as a condition of probation, the period of incarceration may not exceed the maximum one-third of the minimum statutory sentence pursuant to W. Va. Code ' 62-12-9(4).

State of West Virginia v. Richard C. Seibert, Jr., No. 20931 (December 17, 1992)(Brotherton, J.): 189 W. Va. 201, 429 S.E.2d 243:

Reversing the dismissal of an indictment for sexual assault where a previous indictment for the same offense had been dismissed, the Court held that dismissal of an indictment does not ordinarily foreclose the prosecutor from procuring a new indictment and that dismissal does not constitute return of a "not true bill" sufficient to trigger W. Va. Code ' 52-2-9.

State of West Virginia v. Jack Earl Walker, No. 21023 (December 17, 1992)(Neely, J.): 188 W. Va. 661, 425 S.E.2d 616:

Karl S. Dietz v. Carl Legursky, No. 21144 (December 16, 1992)(McHugh, C.J.): 188 W. Va. 526, 425 S.E.2d 202:

David C. Harman, Magistrate for Mineral County v. Honorable Andrew N. Frye, Jr., Judge of the Twenty-First Judicial Circuit, No. 21233 (December 15, 1992)(McHugh, C.J.): 188 W. Va. 611, 425 S.E.2d 566:

Abolishing the citizen complaint procedure for initiating criminal prosecutions, the Court held that, beginning on April 1, 1993, except where there is a specific statutory exception, a magistrate may not issue a warrant or summons for a misdemeanor or felony solely upon the complaint of a private citizen without a prior evaluation of the citizen's complaint by the prosecuting attorney or an investigation by the appropriate law enforcement agency. On a separate issue, the Court held that, in cases involving cross-warrants, where it would be improper for the prosecutor to act, trial courts should appoint special prosecutors pursuant to W. Va. Code ' 7-7-8.

United States of America v. John P. Dobkin, aka Jack Dobkin; and Benjamin C. Dobkin, No. 21229 (October 22, 1992)(Neely, J.): 188 W. Va. 209, 423 S.E.2d 612:

Interpreting statutes regulating the control of gambling devices on a certified question from federal district court, the Court held (1) reimbursement to a video poker machine player in money or anything of value, except free plays, constitutes gambling under W. Va. Code '61-10-1; (2) betting on the outcome of a video poker machine constitutes gambling under W. Va. Code '61-10-5; (3) permitting the use of a video poker machine for gambling purposes in a hotel, tavern or other location constitutes a violation of W. Va Code ' 61-10-6; and (4) use of a video poker machine for gambling purposes does not constitute a violation of W. Va. Code '61-10-11.

State of West Virginia v. James R., II, No. 20933 (October 9, 1992)(Brotherton, J.): 188 W. Va. 44, 422 S.E.2d 521:

State of West Virginia ex rel. O.C. Spaulding, Prosecuting Attorney for Putnam County v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Mark J. McClelland, No. 21304 (September 17, 1992)(Miller, J.): 188 W. Va. 124, 423 S.E.2d 217:

Overturning the award of post-conviction bail to a defendant convicted of first-degree sexual assault, the Court held that because first-degree sexual assault involves violence, it is subject to the provisions of W. Va. Code ' 62-1C-1(b), which prohibits the award of post-conviction bail by circuit judges for certain types of offenses.

State of West Virginia v. Donald Wayne Triplett, No. 20172 (July 23, 1992)(Workman, J.): 187 W. Va. 760, 421 S.E.2d 511:

State of West Virginia v. Richard A. Knotts, No. 20522 (July 23, 1992)(Workman, J.): 187 W. Va. 795, 421 S.E.2d 917:

State of West Virginia v. Carl Morris, No. 20906 (July 22, 1992)(Brotherton, J.)(as modified): 187 W. Va. 737, 421 S.E.2d 488:

State of West Virginia v. Marvin John Thomas, No. 20676 (July 15, 1992)(Neely, J.): 187 W. Va. 686, 421 S.E.2d 227:

State of West Virginia v. Jay Montgomery Brown, No. 20472 (July 10, 1992)(Workman, J.): 188 W. Va. 12, 422 S.E.2d 489:

Overturning the dismissal of an indictment for 17 counts of embezzlement by a public official, the Court held that embezzlement by a public official, under W. Va. Code ' 61-3-20, does not require evidence of specific intent, but evidence that the public official intended to perform the act that resulted in embezzlement is alone sufficient.

State of West Virginia v. Michael Lewis, No. 20930 (July 6, 1992)(Miller, J.): 188 W. Va. 85, 422 S.E.2d 807:

Rejecting an attempt to seek interlocutory review of the denial of a motion to suppress, the Court held that W. Va. Code ' 58-5-2 does not permit the certification of questions in criminal cases. On another issue, the Court held that although the prosecution can promptly seek a writ of prohibition in a criminal case where the trial judge lacks jurisdiction or has abused discretion, if it relies upon the latter ground, it must demonstrate that the judge's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction.

State of West Virginia v. Gary Paul Kerns, No. 20485 (July 1, 1992)(McHugh, C.J.): 187 W. Va. 620, 420 S.E.2d 891:

Rejecting the imposition of payment of special prosecutor fees pursuant to a criminal conviction, the Court held that W. Va. Code ' 62-12-9 does not allow a circuit court to impose, as a condition of probation, the payment of special prosecutor fees. On a separate issue, the Court also noted that where a special prosecutor is appointed due to the disqualification of the regular prosecutor, it is not error for the trial court to deny a motion to remove the special prosecutor following reindictment when the reasons for the regular prosecutor's initial disqualification remain in effect.

State of West Virginia v. William Jones, No. 20657 (June 26, 1992)(Miller, J.) 187 W. Va. 600, 420 S.E.2d 736:

Affirming the habitual criminal conviction of a defendant who held a Sears repairman hostage until his stove was repaired or replaced, the Court held (1) the remoteness of prior felonies is irrelevant for purposes of habitual criminal prosecutions; (2) imposition of a life recidivist sentence does not depend on the prior imposition of the 5-year enhancement under W. Va. Code ' 61-11-18; and (3) where more than the statutory number of prior convictions have been proved, excess convictions are surplusage and do not affect the validity of a habitual criminal conviction.

State of West Virginia v. Patrick Shawn Johnson, AND State of West Virginia v. Larry Barber, Nos. 20197 and 20198 (May 29, 1992)(Miller, J.): 187 W. Va. 360, 419 S.E.2d 300:

Affirming sentence enhancements imposed following jury findings regarding use of a firearm, the Court held that (1) W. Va. Code ' 62-12-2 prohibits probation for a person convicted of committing a felony with the use, presentment, or brandishing of a firearm; (2) W. Va. Code ' 21-12-2 allows the prosecution to give notice of intention to seek enhancement by either a statement in the indictment or other written statement; and (3) a trial court has no obligation to inform the jury of the effect of the finding of use of a firearm.

State of West Virginia v. Gary Wheeler, No. 20286 (May 28, 1992)(Brotherton, J.) 187 W. Va. 379, 419 S.E.2d 447:

State of West Virginia v. Robert M. Gray, No. 20733 (May 28, 1992)(Neely, J.) 187 W. Va. 283, 418 S.E.2d 597:

State of West Virginia v. Denzil Delaney, No. 19837 (April 16, 1992)(Brotherton, J.): 187 W. Va. 212, 417 S.E.2d 903:

State of West Virginia ex rel. Frankie Allan Phillips v. Shirley Boggess, Court Reporter for the Circuit Court of Nicholas County, No. 20914 (April 3, 1992)(McHugh, C.J.): 187 W. Va. 153, 416 S.E.2d 270:

State of West Virginia v. Terry A. Gill, No. 20155 (March 24, 1992)(Miller, J.): 187 W. Va. 136, 416 S.E.2d 253:

Affirming convictions of sexual assault, sexual abuse, and sexual abuse by a parent, custodian, or guardian, for the same acts, the Court rejected the defendant's double jeopardy arguments, holding that (1) the Blockburger "same evidence" test does not apply where there is clear indication of a contrary legislative intent; (2) a claim that the double jeopardy clause has been violated based upon multiple punishments for the same act is to be resolved by determining the legislative intent as to punishment; (3) where legislative intent is not clear, the Blockburger test should be applied; and (4) a legislative statement in W. Va. Code ' 61-8D-5(a), the sexual abuse by a parent, custodian, or guardian statute, that "[in addition to any other offenses set forth in this code, the Legislature hereby declares a separate and distinct offense under this subsection," clearly and unequivocally establishes a legislative intent for multiple punishments for the same criminal acts when the statutory criteria are met.

Committee on Legal Ethics of The West Virginia State Bar v. Charles F. Printz, Jr., No. 20665 (March 23, 1992)(Neely, J.): 187 W. Va. 182, 416 S.E.2d 720:

Holding that it would have been improper to prosecute an attorney for compounding a felony or misprision of a felony under W. Va. Code ' 61-5-19, the Court held that a penal statute may become void under the doctrine of desuetude if (1) the statute proscribes acts that are malum prohibitum and not malum in se; (2) there has been open, notorious, and pervasive violation of the statute for a long period; and (3) there has been a conspicuous policy of nonenforcement of the statute.

Gary Allen Gibson v. Carl E. Legursky, Warden, West Virginia Penitentiary, No. 20628 (March 5, 1992)(Miller, J.): 187 W. Va. 51, 415 S.E.2d 457:

State of West Virginia v. Kennie Childers, No. 20426 (March 5, 1992)(Miller, J.): 187 W. Va. 54, 415 S.E.2d 460:

State of West Virginia v. Phillip A. Ward, No. 19797 (July 29, 1991)(Workman, J.): 188 W. Va. 380, 424 S.E.2d 725:

State of West Virginia ex rel. Lawrence Redman, Jr. v. Jerry C. Hedrick, Warden, West Virginia Penitentiary, No. 19510 (July 25, 1991)(McHugh, J.): 185 W. Va. 709, 408 S.E.2d 659:

State of West Virginia v. Karen Sue DeBerry, No. 19990 (July 25, 1991)(McHugh, J.): 185 W. Va. 512, 408 S.E.2d 91:

Where mother encouraged her 12-year-old daughter to consume alcohol at a party until she lost consciousness, gave her daughter's unconscious body to a man at the party to carry home where he raped her, after which the daughter died from acute ethanol intoxication, the Court reversed a trial court's dismissal of a charge of causing serious bodily injury to a child by felonious neglect, holding that (1) there is no requirement of proof of intent in a prosecution under W. Va. Code ' 61-8D-4(b) for felonious neglect of a minor child causing serious bodily injury, and (2) the use of the term "neglect" in W. Va. Code ' 61-8D-4(b), which is defined in W. Va. Code ' 61-8D-1(6) as "unreasonable failure by a parent . . . to exercise a minimum degree of care to assure said minor child's physical safety or health," does not render the statute unconstitutionally vague, because it gives persons of ordinary intelligence fair notice of the conduct prohibited and provides adequate standards for adjudication.

State of West Virginia v. Raymond Hayes, No. 19783 (July 12, 1991)(McHugh, J.): 185 W. Va. 664, 408 S.E.2d 614:

Where defendant was convicted of issuing a worthless check for payment of a security deposit, the Court affirmed, holding that (1) W. Va. Code ' 61-3-39 and ' 61-3-39a are not void for vagueness, and (2) a violation of W. Va. Code ' 61-3-39a, issuance of a worthless check for a preexisting debt, is not a lesser included offense of W. Va. Code ' 61-3-939, issuance of a worthless check to obtain property or a thing of value, which includes a security deposit.

State of West Virginia v. Lola Mae C., No. 19707 (July 11, 1991)(Workman, J.): 185 W. Va. 452, 408 S.E.2d 31:

State of West Virginia v. Cyrus Jonathan George, No. 19648 (July 11, 1991)(Workman, J.): 185 W. Va. 539, 408 S.E.2d 291:

State v. Rubin (Skeeter) Julius, No. 19836 (July 3, 1991)(Miller, C.J.): 185 W. Va. 422, 408 S.E.2d 1:

State of West Virginia v. Edward H. Young, No. 19647 (June 28, 1991)(McHugh, J.): 185 W. Va. 327, 406 S.E.2d 758:

State of West Virginia v. Larry Caskey and Sandra Caskey, No. 20018 (June 27, 1991) (Brotherton, J.): 185 W. Va. 286, 406 S.E.2d 717:

State of West Virginia v. Andrew G. Hlavacek, No. 19699 (June 27, 1991)(Brotherton, J.): 185 W. Va. 371, 407 S.E.2d 375:

State of West Vrginia v. Jeffrey A. Ward, No. 19704 (May 9, 1991)(Brotherton, J.): 185 W. Va. 361, 407 S.E.2d 365:

Rejecting a challenge to sentencing which occurred almost three years after the defendant was convicted, the Court restated its holding in the single syllabus of Ball v. White, 170 W. Va. 417, 294 S.E.2d 270 (1982), that, in order to constitute a violation of the defendant's right to due process, delay in sentencing must be purposeful, oppressive, or otherwise prejudicial. Further rejecting a challenge to a four-month jail sentence as a condition to the two years' probation received by the defendant when his sentence of 1-10 years for daytime burglary was imposed, the Court held that, as a condition of probation, a court may require, under W. Va. Code ' 62-12-9(4), that a probationer "serve a period of confinement in the county jail . . . not to exceed one third of the minimum sentence established by law . . . , but in no case shall such period of confinement exceed six consecutive months."

State of West Virginia ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Willie "Doc" Williams, No. 19855 (April 25, 1991)(McHugh, J.): 185 W. Va. 72, 404 S.E.2d 763:

State of West Virginia ex rel. Benjamin Roach v. Jerry Dietrick, Superintendent, Eastern Regional Jail, No. 20005 (April 17, 1991)(Miller, C.J.): 185 W. Va. 23, 404 S.E.2d 415:

Where the prosecution sought to set aside a guilty plea after the defendant was released pursuant to the department of corrections' calculation of good time credit, the Court ordered the defendant's discharge from further prosecution, holding that a person who has been incarcerated in jail awaiting sentencing, and who is credited with presentence jail time under W. Va. Code ' 61-11-24, is also entitled to receive good time credit under W. Va. Code ' 28-5-27(c) for the presentence jail time.

Kathy Jo Schofield v. West Virginia Department of Corrections, No. 19708 (March 15, 1991)(Neely, J.): 185 W. Va. 199, 406 S.E.2d 425:

State of West Virginia ex rel. Darrell Gene Knotts and Rosalee Juba-Plumley, Special Prosecuting Attorney for the 29th Judicial Circuit v. Honorable Clarence L. Watt, III, Judge of the 29th Judicial Circuit, No. 20207 (December 19, 1991)(Miller, C.J.): 186 W. Va. 518, 413 S.E.2d 173:

State of West Virginia v. Stephen W. Hatfield, No. 19987 (December 19, 1991)(McHugh, J.): 186 W. Va. 507, 413 S.E.2d 162:

State of West Virginia v. Stewart Martin Elliott, No. 20128 (December 13, 1991)(Workman, J.): 186 W. Va. 361, 412 S.E.2d 762:

State of West Virginia ex rel. Department of Transportation, et al. v. Honorable A. L. Sommerville, Jr., Judge of the Circuit Court of Webster County; Thomas Arthur Grimes; and Melvin Cox, No. 20324 (December 12, 1991) (McHugh, J.): 186 W. Va. 271, 412 S.E.2d 269

Reversing a circuit court injunction prohibiting authorities from weighing suspected overweight vehicles if the driver refuses to submit the vehicle to weighing, the Court held that (1) where a statute is both remedial and penal, its remedial provisions should be liberally construed to achieve the purposes of the statute and its penal provisions should be strictly construed to enforce the penalties provided, and (2) W. Va. Code ' 17C-17-10(a) permits authorities to "require the driver of any vehicle . . . to stop and submit such vehicle . . . to a weighing," even where the driver refuses to comply with W. Va. Code ' 17C-17-10, and is subject to a separate criminal penalty.

State of West Virginia v. Mary M. Burd, No. 20001 (December 11, 1991)(Workman, J.): 187 W. Va. 415, 419 S.E.2d 676:

State of West Virginia v. Larry Eldon James, No. 19938 (November 20, 1991)(Neely, J.): 186 W. Va. 173, 411 S.E.2d 692:

State of West Virginia v. Melissa Walters, No. 20110 (November 18, 1991)(McHugh, J.): 186 W. Va. 169, 411 S.E.2d 688:

Rejecting the prosecution's appeal from the dismissal of misdemeanor battery complaints, the Court held that W. Va. Code ' 58-5-30 does not authorize an appeal by the State from the dismissal of a criminal complaint initially filed in magistrate court.

State of West Virginia ex rel. James F. Painter v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20203 (October 31, 1991)(Brotherton, J.): 186 W. Va. 82, 411 S.E.2d 25:

State of West Virginia ex rel. O.C. Spaulding, Prosecuting Attorney for Putnam County v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Michael B. Pauley, No. 20384 (October 17, 1991)(Miller, C.J.): 186 W. Va. 125, 411 S.E.2d 450:

State of West Virginia v. James William Smith, No. 19958 (October 16, 1991)(Neely, J.): 186 W. Va. 33, 410 S.E.2d 269:

State of West Virginia v. Gary Wayne Miller, No. 19593 (December 19, 1990)(McHugh, J.): 184 W. Va. 367, 400 S.E.2d 611:

State of West Virginia v. John Allen Whitt, No. 19544 (December 14, 1990)(Miller, J.): 184 W. Va. 340, 400 S.E.2d 584:

Rejecting a challenge to the admissibility of a recording of a telephone conversation between the defendant and a citizen who was cooperating with police, the Court held that 18 U.S.C. ' 2511 (2) (c) permits the admission of evidence derived from intercepted wire or oral communications where the interceptor is acting under color of law and is a party to the communication or where the interceptor is acting under color of law and one of the parties to the communication has given prior consent. Moreover, the Court held that if there is an allegation consent was coerced, the State must show there were no undue pressure, threats or promises.

State of West Virginia ex rel. Fredtricia Natalie Johnson v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; and William C. Forbes, Prosecuting Attorney of Kanawha County, No. 19827 (December 14, 1990)(Miller, J.): 184 W. Va. 346, 400 S.E.2d 590:

Prohibiting the prosecution of a defendant who was indicted more than one year after misdemeanor charges were dismissed by the prosecution, the Court held that where a misdemeanor warrant in magistrate court is dismissed, further prosecution for the same offense after one year has passed since execution of the original warrant is precluded unless the record shows one or more of the exceptions contained in W. Va. Code ' 61-3-21.

State of West Virginia v. James Edward S., No. 19577 (December 12, 1990)(Miller, J.): 184 W. Va. 408, 399 S.E.2d 42:

State of West Virginia v. Raymond Housden, No. 19644 (November 29, 1990)(Workman, J.): 184 W. Va. 171, 399 S.E.2d 882:

Rejecting a challenge to a sentence imposing consecutive life recidivist and 1-10 year sentences, the Court held that for multiple convictions rendered on the same day, sentences may be imposed which run consecutively, even though one of those convictions is subject to enhancement under W. Va. Code ' 61-11-19.

State of West Virginia v. Brigitte Wickline, No. 19494 (October 24, 1990)(Miller, J.): 184 W. Va. 12, 399 S.E.2d 42:

State of West Virginia v. Michael Perolis, No. 19607 (October 18, 1990)(Neely C.J.): 183 W. Va. 686, 398 S.E.2d 512:

Robert Craigo v. Carl Legursky, Warden, West Virginia Penitentiary, No. 19728 (October 4, 1990)(Workman, J.): 183 W. Va. 678, 398 S.E.2d 160:

State of West Virginia v. Edward Charles L., No. 19004 (July 27, 1990)(Workman, J.): 183W. Va. 641, 398 S.E.2d 123:

State of West Virginia v. Charles Ray Merritt, AND Charles Ray Merritt v. Carl Legursky, Warden, West Virginia Penitentiary, Nos. 19489 and 19488 (July 26, 1990) (Workman, J.): 183 W. Va. 601, 396 S.E.2d 871:

State of West Virginia v. John W. Schoolcraft, No. 19303 (July 25, 1990)(Brotherton, J.): 183 W. Va. 579, 396 S.E.2d 760:

State of West Virginia v. Betty Jean Kelly, No. 19368 (July 25, 1990)(Miller, J.): 183 W. Va. 509, 396 S.E.2d 471:

State of West Virginia v. Paul William Ferrell, No. 19401 (July 24, 1990)(Neely, C.J.): 184 W. Va. 123, 399 S.E.2d 834:

State of West Virginia v. Thomas Eugene Sayre, No. 19214 (July 24, 1990)(Brotherton, J.): 183 W. Va. 376, 395 S.E.2d 799:

State of West Virginia ex rel. Eugene Blake v. Honorable Robert G. Chafin, Judge of the Circuit Court of Wayne County, No. 19362 (July 11, 1990)(Workman, J.): 183 W. Va. 269, 395 S.E.2d 513:

State of West Virginia ex rel. Ricky Starr, Michael Bryant, Bobby Chafin, Tim Preece, Albert Rush Cline and Mike Holbrook v. Honorable Robert C. Halbritter, Duly Appointed and Acting Special Judge of the Circuit Court of Logan County, West Virginia, and Donald C. Wandling, Prosecuting Attorney of Logan County, West Virginia, No. 19649 (June 28, 1990)(McHugh, J.): 183 W. Va. 350, 395 S.E.2d 773:

State of West Virginia v. Jesse Braden King, No. 18391 (June 28, 1990)(McHugh, J.): 183 W. Va. 440, 396 S.E.2d 402:

E.B., Jr., V.E.B., and M.D.H., all juveniles under the age of eighteen years v. Honorable Thomas B. Canterbury and the Honorable John C. Ashworth, Judges of the Tenth Judicial Circuit, and Lawrence R. Frail, Prosecuting Attorney of Raleigh County,No. 19565 (June 26, 1990)(Workman, J.): 183 W. Va. 197, 394 S.E.2d 892:

Under W. Va. Code ' 49-5-1 to -18, the Court held that until a juvenile is transferred to adult jurisdiction, a grand jury has no authority to return a true bill of indictment against such juvenile.

State of West Virginia v. Arthur Dale Collins, No. 18795 (June 22, 1990)(Miller, J.): 186 W. Va. 1, 409 S.E.2d 181:

William C. Duncil, Warden v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Judson Warren White, No. 19360 (June 12, 1990)(Miller, J.): 183 W. Va. 175, 394 S.E.2d 870:

State of West Virginia v. John B. Kerns, No. 19247 (June 8, 1990)(McHugh, J.): 183 W. Va. 130, 394 S.E.2d 532:

State of West Virginia v. Elbert Wayne Giles, Jr., No. 19048 (June 7, 1990)(Brotherton, J.): 183 W. Va. 237, 395 S.E.2d 481:

Where juvenile suspect was transported by officer to police headquarters without sufficient probable cause, was not taken before a judicial officer in a timely manner, and was extensively interrogated in an accusatory fashion, the Court determined that he had been "taken into custody," under W. Va. Code ' 49-5-8(d), and should have been afforded a "written statement explaining [his] right to a prompt detention hearing, his right to counsel including appointed counsel if he cannot afford counsel and his privilege against self-incrimination," and that two inculpatory statements which were the product of the interrogation should have been suppressed. On another issue, the Court held that if a murder case is prosecuted under both felony-murder and first-degree murder theories, jury instructions must be given to distinguish between these two theories and verdict forms must be provided so that it can be determined under which theory the conviction is based.

State of West Virginia, ex rel. William C. Forbes, Prosecuting Attorney for Kanawha County v. The Honorable Patsy McGraw, Magistrate, Kanawha County Magistrate Court, No. 19550 (June 4, 1990)(Workman, J): 183 W. Va. 144, 394 S.E.2d 743:

Irvin Hutchinson v. Jerry Dietrich, Administrator, Eastern Regional Jail, and Honorable Thomas W. Steptoe, Jr., Judge of the Circuit Court of Morgan County, No. 19483 (May 17, 1990)(Brotherton, J.): 183 W. Va. 25, 393 S.E.2d 663:

State of West Virginia v. Terry Lee Ruggles, No. 19105 (May 17, 1990)(Brotherton, J.): 183 W. Va. 58, 394 S.E.2d 42:

State of West Virginia v. John R. Maynard, No. 19135 (March 30, 1990)(Workman, J.): 183 W. Va. 1, 393 S.E.2d 221:

State of West Virginia v. Phillip Porter, No. 18874 (March 22, 1990)(McHugh, J.): 182 W. Va. 776, 392 S.E.2d 216:

State of West Virginia v. Ronald Eugene Daniel, No. 19301 (March 9, 1990)(Brotherton, J.): 182 W. Va. 643, 391 S.E.2d 90:

Frank Billotti v. A.V. Dodrill, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden, No. 18534 (March 9, 1990) (Brotherton, J.): 183 W. Va. 48, 394 S.E.2d 32:

State of West Virginia v. Karl Dietz, No. 18909 (March 8, 1990)((McHugh, J.)(on rehearing): 182 W. Va. 544, 390 S.E.2d 15:

State ex rel. Jim Webb v. Honorable Ronald E. Wilson, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County AND State ex rel. Hugh Wellman v. Honorable Ronald E. Wilson, Special Judge of the Circuit Court of Mingo County, and Donald J. Tennant, Jr., Special Prosecuting Attorney of Mingo County, Nos. 19276 and 19279 (February 15, 1990)(McHugh, J.): 182 W. Va. 538, 390 S.E.2d 9:

Because the initial indictments were dismissed as void after expiration of three unexcused regular terms of court, the Court held that, under the three-term rule of W. Va. Code ' 62-3-21, the defendants were "forever discharged" and could not be prosecuted on the charges contained in the indictments.

State of West Virginia v. Steve Adkins, AND State of West Virginia v. Goodwill Motors, Inc., a corporation, Jack Webb, Joey Kohari, and Hugh Wellman, AND State of West Virginia v. Irvin "K.O." Damron, AND State of West Virginia v. Samuel Kapourales, AND State of West Virginia v. Robert Simpkins, AND State of West Virginia v. Paul Sizemore, AND; State of West Virginia v. R. Doyle Van Meter, II, AND State of West Virginia v. W. Thomas Ward, Nos. 19255; 19256; 19257; 19248; 19259; 19260; 19261; and 19262 (December 20, 1989) (Brotherton, C.J.): 182 W. Va. 442, 388 S.E.2d 316:

The Court rejected the State's attempt to appeal the dismissal of indictments under the three-term rule, holding that the right of the State to appeal in criminal cases is limited under W. Va. Code ' 58-5-30 to the dismissal of indictments that are "bad or insufficient".

State of West Virginia v. John Spence, Jr., No. 18203 (December 20, 1989)(Miller, J.): 182 W. Va. 472, 388 S.E.2d 498:

State of West Virginia v. Dewey C. Davis, No. 18871 (December 20, 1989)(Miller, J.): 182 W. Va. 482, 388 S.E.2d 508:

State of West Virginia v. Cheryl L. Satterfield, No. 18657 (December 14, 1989)(Neely, J.): 182 W. Va. 365, 387 S.E.2d 832:

State v. Winston C. Fortner, Jr., No. 18941 (December 14, 1989)(Miller, J.): 182 W. Va. 345, 387 S.E.2d 812:

State of West Virginia v. Daney L. Marcum, No. 18651 (October 19, 1989)(Neely, J.): 182 W. Va. 104, 386 S.E.2d 117:

Farm Family Mutual Insurance Company v. Thorn Lumber Company and Farmer Boy Ag, Inc., No. 24503 (March 12, 1998)(Starcher, J.): 202 W. Va. 69, 501 S.E.2d 786:

Reversing and remanding an order of default judgment entered pursuant to Rule 55 of the West Virginia Rules of Civil Procedure, the Court found that the circuit court abused its discretion in refusing to set aside a default judgment on the issue of damages and in finding that the loss paid by the insurance carrier to its insured was a Asum certain,@ such that no evidentiary hearing was required, under Rule 55. The Court held that the term Asum certain,@ as used in Rule 55, contemplates a situation where the amount due cannot be reasonably disputed, is settled with respect to amount, ascertained and agreed upon by the parties, or fixed by operation of law. A claim is not for a Asum certain@ merely because the claim is stated as a specific dollar amount in a complaint, verified complaint, or affidavit.

Jana Lynn Tudor v. Charleston Area Medical Center, Inc., a West Virginia corporation, and Janice Smith, No. 23948 (December 16, 1997)(Workman, C. J.)(Maynard, J., dissenting): 203 W. Va. 111, 506 S.E.2d 554:

Affirming the trial court rulings on questions of evidence, jury instructions, denial of motions for directed verdict but reversing as to a motion for remittitur in a constructive retaliatory discharge case, the Supreme Court held, inter alia, as follows: (1) C.S.R. ' 64-12-14.2.4 (1987) sets forth a specific statement of a substantial public policy which contemplates that a hospital unit will be properly staffed to accommodate the regulation=s directive; to ensure that patients are protected form inadequate staffing practices; and to assure that medical care is provided to hospital patients, especially children and young adolescents, who must depend upon others to protect their medical interests and needs. (2) In cases where the jury is presented with an intentional infliction of emotional distress (IIED) claim, without physical trauma or without concomitant medical or psychiatric proof of emotional or mental trauma, and damages awarded by the jury for IIED under these circumstances necessarily encompass punitive damages and, therefore, an additional award for punitive damages would constitute an impermissible double recovery. Where, however, the jury is presented with substantial and concrete evidence of a plaintiff=s serious physical, emotional or psychiatric injury arising out of the IIED, then any compensatory or special damages awarded would be in the nature of compensation to the injured plaintiff(s) for actual injury, rather than serving the function of punishing the defendant(s) and deterring such future conduct, a punitive damage award in such cases would not constitute an impermissible double recovery. To the extent this holding conflicts with our decision in Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), it is hereby modified. (3) Where a jury verdict encompasses damages for IIED, absent physical trauma, as well as for punitive damages, it is incumbent upon the circuit court to review such jury verdicts closely and to determine whether all or a portion of the damages awarded by the jury for IIED are duplicative of punitive damages such that some or all of an additional award for punitive damages would constitute an impermissible double recovery. If the circuit court determines that an impermissible double recovery has been awarded, it shall be the court=s responsibility to correct the verdict. The Court directed that the punitive damage awards against both the appellants be remitted on the grounds that the punitive damages are duplicative of the jury=s award of damages for IIED.

Gina K. Andrews, Administratrix of the Estate of Justin Kyle Andrews, Gina K. Andrews, individually, and Jeffery Andrews, individually v. Reynolds Memorial Hospital, Inc., a corporation, and R. W. Spore, M.D., No. 23858 (December 5, 1997)(McHugh)(Starcher, J., concurring)(Maynard J., dissenting): 201 W. Va. 624, 499 S.E.2d 846:

Mary Coleman, et al. v. Irvin Sopher, No. 23943 (November 20, 1997)(Davis, J.)(Maynard, J., dissenting): 201 W. Va. 588, 499 S.E.2d 592:

Timothy W. Clark, Jr. and Brian K. Cunningham v. Kawasaki Motors Corp., U.S.A., and Kawasaki Heavy Industries, Ltd., No. 23395 (July 16, 1997)(McHugh, J.): 200 W. Va. 763, 490 S.E.2d 763:

Affirming a judgment for the plaintiffs in an action against defendant ATV manufacturer for injuries plaintiffs sustained while using the ATV, the Court held that the circuit court properly used the Asettlement first@ method of reducing the jury verdict to reflect prior settlements and the comparative fault of the parties, i.e., by first subtracting the amount of the prior settlements from the jury verdict and then reducing the remainder by the percentage of plaintiffs= comparative negligence, rather than the Afault first@ method.

Larry E. Alkire v. First National Bank of Parsons, a national banking association v. Mosler, Incorporated, a Delaware corporation, No. 23125 (July 15, 1996)(Recht, J.): 197 W. Va. 122, 475 S.E.2d 122:

Reversing vacation of a $1.05 million punitive damages award and remanding for further proceedings, the Court held (1) the amount of a punitive damages award must be reviewed by both the trial and appellate courts in accordance with the requirements of Garnes and TXO; (2) punitive damages review pursuant to Garnes and TXO should not include the Areally mean/really stupid@ dichotomy mentioned in TXO; and (3) punitive damages review pursuant to Garnes and TXO follows a two-step process: (i) determining whether Aany@ award of punitive damages was warranted under the circumstances of the case and (ii) whether the Aamount@ of punitive damages awarded was warranted.

Danny Reed and Sonya Reed v. Kathy L. Wimmer, No. 22705 (October 27, 1995)(Cleckley, J.): 195 W. Va. 199, 465 S.E.2d 199:

Carol Sue Bullman v. D & R Lumber Company, No. 22729 (October 27, 1995)(Cleckley, J.): 195 W. Va. 129, 464 S.E.2d 771:

Affirming an award of both treble and punitive damages in a wrongful removal of timber case, the Court held (1) the treble damage award available under W. Va. Code ' 61-3-48a is to provide compensatory damages to landowners for damaged or removed timber and (2) because W. Va. Code ' 61-3-48a states that treble damages shall be in addition to and notwithstanding any other penalties provided by law, a plaintiff may recover punitive damages in addition to such treble damages.

Sandra Bressler v. Mull's Grocery Mart, No. 22343 (July 19, 1995)(Workman, J.): 194 W. Va. 618, 461 S.E.2d 124:

Sandra K. Michael, as Administratrix and Personal Representative on Behalf of the Estate of Randi Nichole Michael v. Francisco D. Sabado, Jr., M.D., No. 22032 (December 21, 1994)(Cleckley, J.): 192 W. Va. 585, 453 S.E.2d 419:

Mark Capper, Anita M. Lefevre, et al., dba Mauser Hall Partnership v. Fred Gates, dba Gates Associated, No. 21996 (December 8, 1994) (Neely, J.): 193 W. Va. 9, 454 S.E.2d 54:

William E. Wehner, Jr., Administrator of the Estate of Jennifer Wehner; Nicole Fisher; and Jessica Landau v. Brett Barry Weinstein; Mark Weinstein; Associated Hearing Instruments of King of Prussia, Inc.; Bossio Enterprises, Inc., dba Mario's Pizza; Matthew Kiser; Sigma Phi Epsilon, a national fraternal organization and association; Sigma Phi Epsilon Building Association, Inc., a corporation; and the West Virginia University Board of Trustees, Nos. 21911, 21912, 21913, and 21914 (April 20, 1994)(Miller, J.): 191 W. Va. 149, 444 S.E.2d 27:

Where defendants sought to reduce plaintiff's wrongful death award by the amount the decedent would have consumed over the course of her life, the Court held that W. Va. Code ' 55-7-6(c)(1)(B)(i) allows as part of the elements of damages in a wrongful death case compensation for reasonably expected loss of income of the decedent and does not require that such amount be reduced for estimated personal consumption.

Carolyn Liston and Daley Liston v. The University of West Virginia Board of Trustees on Behalf of West Virginia University, No. 21546 (December 13, 1993)(Miller, J.): 190 W.Va 410, 438 S.E.2d 590:

Glenn M. Wilt and Sandra B. Wilt v. Robert Buracker, Sheriff as Successor in Interest to Roy E. Thompson, Administrator of the Estate of Charles W. Nickelson, Jr., No. 21708 (December 13, 1993)(Miller, J.): 191 W. Va. 39, 443 S.E.2d 196:

In addition to holding that loss of enjoyment of life is not subject to economic calculation, the Court held that (1) prejudgment interest, pursuant to W. Va. Code ' 56-6-31, may be awarded in damages for expenditures for household services, and (2) when liability is clearly established and the jury has made an erroneous calculation of damages, a remittitur may be directed on remand, but if the plaintiff declines to accept the remittitur, a new trial will be awarded solely on the issue of damages.

Ellen Roxanna Linville, Administratrix of the Estate of Jack K. Linville v. John W. Moss, III, and Guest Trucking Company, Inc., No. 21263 (July 22, 1993)(Workman, C.J.): 189 W. Va. 570, 433 S.E.2d 281:

Eddie Bowling, et al. v. Ansted Chrysler-Plymouth-Dodge, Inc., and David Akers, No. 20994 (December 11, 1992)(Miller, J.): 188 W. Va. 468, 425 S.E.2d 144:

Cell Inc., a West Virginia corporation v. Ranson Investors, a West Virginia limited partnership; George W. Bushey, individually; and Vernon L. Tetlow, individually, AND Cell, Inc., a West Virginia corporation v. Ranson Investors, a West Virginia limited partnership; George W. Bushey, individually; and Vernon L. Tetlow, individually, Nos. 20858 and 20861 (December 9, 1992)(Neely, J.): 189 W. Va. 13, 427 S.E.2d 447:

Sara W. Slack v. Kanawha County Housing and Redevelopment Authority, a corporation; Frank Vinson; Carl Smith; James Schwartz, Kanawha County Housing and Redevelopment Authority, a Corporation; Frank Vinson; Carl Smith, No. 20725 (July 9, 1992)(Miller, J.): 188 W. Va. 144, 423 S.E.2d 547:

Ronald Davis, Executor of the Estate of Jennings Davis v. The Celotex Corporation, No. 20651 (June 12, 1992)(Miller, J.): 187 W. Va. 566, 420 S.E.2d 557:

Daphne Colleen Pasquale, Personal Representative of the Estate of Michael David Pasquale v. Ohio Power Company, an Ohio corporation, Central Operating Company, a West Virginia corporation; and Gallia Refrigeration, Inc., a/k/a Pasquale Electric Company, an Ohio corporation, No. 20264 (May 15, 1992)(Miller, J.): 187 W. Va. 292, 418 S.E.2d 738:

Affirming a $6.2 million verdict in a wrongful death case against a power plant and a general contractor arising from the electrocution of the employee of a subcontractor, the Court held that the factors to be considered in determining whether a verdict is excessive include (1) whether the defendant actively cross-examined the plaintiff's damages witnesses; (2) whether the defendant introduced its own damages evidence; and (3) whether the defendant sought to ensure that the jury was properly instructed on damages. With respect to the calculation of prejudgment interest, the Court further held that future wage loss is not a prejudgment loss or special damage under W. Va. Code ' 56-6-31.

TXO Production Corp., a Delaware corporation licensed to do business in West Virginia v. Alliance Resources Corp., et al., No. 20281 (May 14, 1992)(Neely, J.): 187 W. Va. 457, 419 S.E.2d 870:

Mark A. Robinson, individually and Julia A. Robinson, individually and as parent and natural guardian of Mark A. Robinson, II, an infant v. Charleston Area Medical Center, Inc., a West Virginia corporation, and Kanoj K. Biswas, M.D., No. 20109 (December 20, 1991)(McHugh, J.): 186 W. Va. 720, 414 S.E.2d 877:

Reducing a $15.25 million verdict to $11.75 million for the family of an infant who suffered permanent brain damage as the result of an obstetrician's alleged malpractice, the Court upheld the constitutionality of W. Va. Code ' 55-7B-8, which imposes a $1 million cap on noneconomic damages in medical malpractice actions, which it further held applies as the maximum amount that can be awarded for the aggregate claims of all plaintiffs against a health care provider as defined in the statute.

Buckhannon-Upshur County Airport Authority v. R & R Coal Contracting, Inc., a West Virginia corporation, a/k/a/ R & R contracting, Inc., a corporation; W.A. Ryder Contracting Company, Inc., a corporation; Willie A. Ryder; Allied Fidelity Insurance Company, a corporation; L. Robert Kimball and associates, a Pennsylvania sole proprietorship; Continental Casualty Company, a corporation; Buckeye Union Insurance Company, a corporation; Boston Old Colony Insurance Company, a corporation; Firemen=s Insurance Company of Newark, New Jersey, a corporation; and Continental Insurance Company, Continental Insrance Company, a corporation, No. 20211 (December 17, 1991) (Workman, J.): 186 W. Va. 583, 413 S.E.2d 404:

Desco Corporation, dba Colliers Industries v. Harry W. Trushel Construction Company and Fire Foe Corporation v. Industrial Risk Insurers, No. 19993 (December 6, 1991)(Miller, C.J.): 186 W. Va. 430, 413 S.E.2d 85:

Julian Garnes and Sharon Garnes v. Fleming Landfill, Inc., and John T. Fleming, No. 20284 (December 5, 1991)(Neely, J.): 186 W. Va. 613, 413 S.E.2d 879:

Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (November 22, 1991)(Miller, C.J.): 186 W. Va. 195, 411 S.E.2d 850:

Boyd Thurman Beard and Mary F. Beard v. Romeo Y. Lim, John A. B. Holt and the Eye and Ear Clinic of Charleston, Inc. v. Ethicon, Inc., and Hospital and Physicians Supply Co., Inc., No. 19670 (July 18, 1991) (Workman, J.): 185 W. Va. 749, 408 S.E.2d 772:

Larry Schartiger and Donna Schartiger, his wife, et al. v. Land Use Corporation, a West Virginia corporation, et al., No. 19482 (July 11, 1991)(Neely, J.): 187 W. Va. 612, 420 S.E.2d 883:

In a suit brought by landowners whose water wells were rendered unproductive by the defendants' mining activities, but where the defendants' offered to connect the plaintiffs to the local public water system and to pay damages of $30,000, which was rejected by the plaintiffs in favor of a jury trial, which resulted in an award of restored water but no compensatory damages, the Court held that, under W. Va. Code ' 22A-3-25(f), an award of attorney fees to the "prevailing" party may only be made where the plaintiff demonstrates that the litigation effected a "material alteration of the legal relationship of the parties in a manner which the legislature sought to promote in the fee statute." Moreover, the Court stated that attorney fees may be limited to those incurred prior to the rejection of a reasonable offer of settlement.

George W. Bostic v. Mallard Coach Company, Inc., No. 19790 (June 27, 1991)(Neely, J.): 185 W. Va. 294, 406 S.E.2d 725:

Discussing the damages available under the West Virginia "lemon law," W. Va. Code ' 46A-6A-4(b), the Court held that the trier of fact may award one or more of the following: (1) refund of the purchase price; (2) diminished value; (3) cost of repair; (4) loss of use; (5) annoyance; (6) inconvenience; and (7) reasonable attorney fees. On another issue, the Court granted an additur in order to compensate the plaintiff for the cost of his expert witness, which was initially awarded by the jury, but was not included in its final award after it was instructed to recalculate its verdict, holding that when an initial jury verdict specifying the payment of certain expenses is not included in its final verdict calculated after instructions to award a sum certain, it is appropriate for the trial court to enter an additur or, at the election of the defendant, to award a new trial on the issue of damages alone.

John Fullmer, M.D. and Marlene Fullmer v. Swift Energy Co., Inc., No. 19630 (April 22, 1991)(Neely, J.): 185 W. Va. 45, 404 S.E.2d 534:

Charles R. Miller v. Monongahela Power Company, No. 19640 (February 7, 1991)(Neely, J.): 184 W. Va. 663, 403 S.E.2d 406:

Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773 (February 22, 1990)(Miller, J.): 182 W. Va. 597, 390 S.E.2d 796:

Phyllis Belcher and Stephanie L. Belcher v. Sherry L. Goins, No. 19566 (December 19, 1990) (McHugh, J.): 184 W. Va. 395, 400 S.E.2d 830:

Martha J. Rice, Administratrix of the Estate of Joyce Gail Rice v. Larry E. Ryder and Steven W. Ryder, No. 19386 (December 6, 1990) (Brotherton, J.): 184 W. Va. 255, 400 S.E.2d 263:

Where an unmarried, childless woman was killed in an automobile accident, the Court held that, pursuant to W. Va. Code ' 55-7-6, financial dependency is not a prerequisite to a wrongful death recovery, but that her parents and siblings could receive "compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent." Moreover, with respect to distribution of the wrongful death proceeds, the Court held that, pursuant to the wrongful death statute, damages shall be distributed in accordance with the decedent's will or, if there is no will, in accordance with the laws of descent and distribution.

Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (December 6, 1990)(Miller, J.): 184 W. Va. 237, 400 S.E.2d 245:

Tom Ellis and Mara Ellis, his wife v. Honorable Charles E. King, Judge of the Circuit Court of Kanawha County; JMI Transport, Inc., an Arkansas corporation, and Hamilton M. Potter, No. 19792 (December 5, 1990)(Brotherton, J.): 184 W. Va. 227, 400 S.E.2d 235:

Richard W. Adams and Sandra Adams v. Nissan Motor Corporation in U.S.A., AND Richard W. Adams and Sandra Adams v. Nissan Motor Corporation in U.S.A., Nos. 19041 and 19130 (November 3, 1989)(Brotherton, C.J.): 182 W. Va. 234, 387 S.E.2d 288:

F. Jane Hustead, Guardian ad Litem, et al. v. Ashland Oil, Inc., No. 23169 (June 17, 1996) (Workman, J.): 197 W. Va. 55, 475 S.E.2d 55:

Rejecting an attempt by a guardian ad litem to challenge, post-judgment, through a declaratory judgment action, the settlement of cases in behalf of infant plaintiffs, the Court held (1) when a court approves a settlement by entry of a judgment order pursuant to W. Va. Code ' 56-10-4, the judgment, if unappealed, becomes final and subject to the doctrine of res judicata; (2) although R. Civ. P. 60(b) permits collateral attack on a final judgment, it is available only when one of the enumerated circumstances stated therein is present; (3) a declaratory judgment cannot be used as a substitute for a direct appeal; and (4) in determining whether a declaratory judgment action should be heard, the court must decide (i) whether the claim involves uncertain and/or contingent events that may not occur, (ii) whether the claim is dependent upon facts, (iii) whether there is adversarialness among the parties, and (iv) whether a declaration would settle the underlying controversy.

Darrell V. McGraw, Jr., in his official capacity as Attorney General of West Virginia v. Honorable Gaston Caperton, in his official capacity as Governor of the State of West Virginia, et al., No. 22011 (May 19, 1994)(Brotherton, C.J.): 191 W. Va. 528, 446 S.E.2d 921:

Colene C. McCormick v. Vondon Ray McCormick, Jr., et al., No. 19484 (November 29, 1990)(Neely, C.J.): 184 W. Va., 399 S.E.2d 469:

Roberta Meadows and Tara Sue Morgan v. Wade Belknap and Gary Cogar and Carma Perrine v. Roberta L. Meadows and Tara Sue Morgan, No. 23534 (February 21, 1997)(Davis, J.): 199 W. Va. 243, 483 S.E.2d 826:

Reversing denial of injunctive relief to plaintiff to prevent her daughters from interfering with her right to dispose of timber on real property, the Court ruled that plaintiff=s deceased husband=s conveyance of the property, to which he owned fee simple title, to defendants with a reservation of a life estate and timber rights to himself and plaintiff, in which deed plaintiff joined, extinguished plaintiff=s dower interest and conveyed to plaintiff the right to use the property during her lifetime, including the right to dispose of the timber thereon and to prevent defendants= interference with such right.

William E. Galloway v. Rose Ann Cinello, No. 21226 (October 23, 1992)(Miller, J.): 188 W. Va. 266, 423 S.E.2d 875:

Where attorney improperly acted as both notary and trustee on a deed of trust, the Court held (1) a notary with a disqualifying interest may not legally perform, under W. Va. Code ' 29C-3-102, any notarial act in connection with the transaction; (2) to determine whether a notary's disqualifying interest should act to void the instrument acknowledged, a court should consider whether an improper benefit was obtained by the notary or any party to the instrument, as well as whether any harm flowed from the transaction, overruling Tavenner v. Barrett, 21 W. Va. 656 (1883); (3) once it is shown that actual prejudice, unfair dealing, or undue advantage has resulted from a notary's disqualifying interest in an instrument, the burden shifts to the notary to demonstrate than no improper benefit was obtained and no harm occurred as the result of the acknowledgment; and (4) a notary is liable to persons involved, under W. Va. Code ' 29C-6-101, for all damages proximately caused by the notary's "official misconduct," which means the unauthorized, unlawful, abusive, negligent, reckless, or injurious exercise of the power or authority of a notary.

Raymond Kenneth McGuire, et al. v. Gertrude Walker, et al., No. 20917 (October 23, 1992)(Miller, J.): 188 W. Va. 214, 423 S.E.2d 617:

Martin Greenfield v. Schmidt Baking Company, Inc., John F, Morrison and Dennis Swartz, No. 23574 (March 19, 1997)(Davis, J.): 199 W. Va. 447, 485 S.E.2d 391:

Reversing summary judgment for the defendant employer in an action for defamation, invasion of privacy, intentional infliction of emotional distress, and the tort of outrage arising from defendant=s posting of a letter at the workplace indicating that plaintiff had abused the company=s sick leave policy and remanding for further proceedings, the Court held that the circuit court erred in ruling that plaintiff=s claims were pre-empted by federal law under '301 of the Labor Management Relations Act of 1947, 29 U.S.C. '185, where resolution of plaintiff=s state court claims does not require an interpretation of the collective bargaining agreement between the parties.

State ex rel. Joseph Suriano, Jr., and the Ohio County Education Association v. Honorable Martin J. Gaughan, Judge of the Circuit Court of Ohio County, and Thomas J. Romano, M.D., No. 23555 (December 5, 1996)(Cleckley, J.): 198 W. Va. 339, 480 S.E.2d 548:

In granting a writ of prohibition preventing the respondent judge from conducting further proceedings in a libel action arising from comments by representatives of a local teacher=s union on defendant doctor=s withdrawal from participation in state insurance programs following enactment of the Omnibus Health Care Act of 1989 (the Act), W. Va. Code, 16-29D-1 et seq., the Court ruled (1) defendant, by writing letters to newspapers, professional journals and organizations, fellow physicians and government officials in opposition to the Act, became a limited purpose public figure, required to prove by clear and convincing evidence that petitioner=s comments were made with actual malice or recklessness showing a total disregard for the truth and (2) petitioner=s statements were substantially true, that is, they would not have had a different effect on the mind of the reader from that which the pleaded truth would have produced, and were not, therefore, actionable.

Stan Maynard v. Daily Gazette Company, a corporation, dba The Charleston Gazette, No. 21815 (July 20, 1994)(Brotherton, C.J.): 191 W. Va. 601, 447 S.E.2d 293

Dean M. Harris v. Harold Adkins, No. 21537 (June 28, 1993)(Miller, J.): 189 W. Va. 465, 432 S.E. 2d 549:

Overruling its holding in Webb v. Fury, 167 W. Va. 434, 282 S.E.2d 28 (1981), regarding absolute privilege under the right to petition clause of the West Virginia Constitution, where city council candidate was sued after making allegedly defamatory comments about a city councilman at a public city council meeting, the Court held that the right to petition under W. Va. Const. art. III, ' 16 does not provide an absolute privilege for intentional or reckless falsehoods, but the right is protected by the actual malice standard of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).

Raymond D. Hinerman v. The Daily Gazette Company, Inc., No. 20489 (July 16, 1992)(Neely, J.): 188 W. Va. 157, 423 S.E.2d 560:

Ronald L. Dixon v. Ogden Newspapers, Inc., a corporation and Donald J. Naegele v. Ogden Newspapers, Inc., a corporation, No. 19425 (February 27, 1992)(Brotherton, J.): 187 W. Va. 120, 416 S.E.2d 237:

Michael C. Farber v. Walter J. Dale, individually and in his capacity as the Chairman of the West Virginia Health Care Cost Review Authority, No. 19138 (April 12, 1990)(Brotherton, J.): 182 W. Va. 784, 392 S.E.2d 224:

In a defamation action brought by an attorney against the Chairman of the Health Care Cost Review Authority who filed an ethics complaint against such attorney charging that the attorney's conduct at a hearing before the Authority, "reminded him of the Gestapo in a Fascist tactics meeting," the Court held that Article VI, ' 43 of the West Virginia State Bar Constitution grants absolute immunity in actions for libel against complaining witnesses and parties in attorney disciplinary proceedings.

Andrew Lakatos and Virginia Lakatos v. Estate of Frank J. Billotti, deceased, and Rose Ann Billotti, No. 25056 (November 20, 1998)(Maynard, J.): 203 W. Va. 553, 509 S.E.2d 594:

Reversing the lower court, the Court overruled State ex rel. Miller v. Sencindiver, 166 W. Va. 355, 275 S.E.2d 10 (1980) and held that the plain statutory language of W. Va. Code ' 42-4-2 (1931) provides that upon the death of the victim, the total estate held in a joint tenancy passes in its entirety to the person or persons who would have taken the same if the slayer had predeceased the victim.

Roy Lee McClure and Mary Frances McClure, his wife v. Lu Ann Dotson and Lu Ann Dotson McClure, Administratrix of the Estate of James Edward McClure, and Kansas City Life Company, Inc., a corporation, No. 19777 (March 15, 1991)(Miller, C.J.): 184 W. Va. 649, 403 S.E.2d 197:

Where parents alleged that their daughter-in-law had killed their son and that she should not recover his life insurance proceeds, the Court held that although W. Va. Code ' 42-4-2 permits proof of a conviction of felonious killing to bar the slayer from obtaining life insurance proceeds or property from the decedent, if there is no such conviction, then evidence of an unlawful and intentional killing must be demonstrated by a preponderance of the evidence in a civil action.

State of West Virginia ex rel. Allstate Insurance Company, a foreign corporation v. The Honorable Martin J. Gaughan, Judge of the Circuit Court of Ohio County, West Virginia, and Carol J. Thoburn, No. 24510 (July 14, 1998)(Davis, C. J.): 203 W. Va. 358, 508 S.E.2d 75:

Granting a petition for writ of prohibition as moulded, the Court held, inter alia, as follows: [1] in a third-party bad faith action where an insured has signed a release of his/her claim file to a third-party litigant, an insurer may raise a quasi attorney-client privilege to communication in the insured=s claim file. The quasi attorney-client privilege belongs to the insurer, not the insured, and may be waived only by the insurer; [2] all communications in an insured=s claim file that were generated prior to the filing date of a third-party=s underlying complaint against the insured are not protected by the quasi attorney-client privilege. All communications in an insured=s claim file generated on and after the filing date of a third-party=s complaint against an insured, are presumptively quasi attorney-client privilege communications; [3] where a third-party has obtained a release from the insured giving the third-party access to all communications in the insured=s claim file, in order for the third-party to seek discovery of communications in the claim file generated on or after the date the third-party filed his/her complaint against the insured, the third-party must provide some reasonable description of each communication he/she seeks that was generated on or after the date the third-party filed his/her complaint against the insured. In other words, the third-party may not merely request all communication in the claim file generated on or after the filing date of the complaint against the insured. Thereafter, if the insurer raises the quasi attorney-client privilege to such specifically requested communication, the insurer must prove the elements of the traditional common law attorney-client privilege for each communication it seeks to shield from discovery through assertion of the quasi attorney-client privilege. The trial court must then make an independent determination for each communication the insurer seeks to shield from discovery. If the trial court determines that some or all of the specifically requested communication has been shown to satisfy the elements of the traditional common law attorney-client privilege, then such communication is protected from disclosure by the quasi attorney-client privilege; [4] a third party may, in some instances, obtain discovery of documents found to be protected by the quasi attorney-client privilege. To obtain such documents, the burden is on the third-party to show a Acompelling need@ for each communication that has been found to be protected from disclosure by the quasi attorney-client privilege. To satisfy the quasi attorney-client privilege compelling need test, the third-party must show that (a) the specifically requested protected communication cannot reasonably be obtained elsewhere and (b) that the specifically requested protected communication could reasonably be interpreted by the fact finder as tending to prove an element of the bad faith cause of action or (c) that the specifically requested protected communication could reasonably be used to lead to the discovery of facts that tend to prove an element of the bad faith cause of action. Any protected communication for which the third-party satisfies the quasi attorney-client privilege compelling need test must be produced to the third-party; [5] when attorney-client privileged documents are inadvertently disclosed during discovery, such disclosure does not in and of itself constitute a waiver of the privilege. In order to determine whether to apply the waiver doctrine to such disclosure trial courts must consider the following factors: (a) the reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of document production, (b) the number of inadvertent disclosures, (c) the extent of the disclosures, (d) the promptness of measures taken to rectify the disclosure, (e) whether the overriding interest of justice would be served by relieving the party of its error and (f) any other factors found to be relevant. The party inadvertently disclosing attorney-client privileged communication bears the burden of showing by a preponderance of evidence that the communication should retain its privileged status. The trial court=s determination of this issue will not be reversed absent an abuse of discretion.

State of West Virginia ex rel. United Hospital Center, Inc., a corporation v. Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County, and Mary Mobley, Administratrix of the Estate of Agnes Becker, No. 23847 (March 14, 1997) (McHugh, J.): 199 W. Va. 316, 484 S.E.2d 199:

Granting a moulded writ of prohibition in a proceeding seeking to prevent enforcement of discovery orders in a civil action arising from the fall of a 93-year-old woman at the petitioner=s hospital, the Court held that (1) neither an incident report prepared by a nurse at the time of the fall nor a subsequent investigative report of the facts surrounding the fall was protected by the attorney-client privilege where neither report involved protected attorney-client communications; (2) the incident report was not protected by the work product doctrine where the primary motivating purpose behind its creation was not to assist in pending or probable future litigation, but to comply with hospital rules and regulations requiring preparation of such reports in the ordinary course of business; (3) the investigative report was is protected by the work product doctrine only to the extent that it involves opinion work product - factual work product portions of the document are discoverable on a showing of Asubstantial need@ or Aundue hardship@ to the moving party; and (4) in designating its general counsel to testify during depositions, the petitioner waived the attorney-client privilege and the work product doctrine as to factual matters counsel was asked to recount in the deposition. The Court issued the writ only with regard to the investigative report and only to the extent that the circuit court had yet to determine which portions of the report, if any, involved opinion work product protected from discovery and factual work product which was discoverable on a proper showing of need.

B.F. Speciality Company, a corporation, and Martin Shaffer v. Charles M. Sledd Company, a corporation, No. 23072 (July 19, 1996)(Recht, J.): 197 W. Va. 463, 475 S.E.2d 555:

Refusing to reverse a defense verdict where the chief assignments of error were regarded the failure of the trial court to order complete discovery, the Court held (1) a trial court has broad discretion in controlling the discovery process, and (2) an abuse of discretion with respect to discovery management occurs when the trial court acts so arbitrarily and unreasonably as to indicate a lack of careful consideration and to shock the appellate court=s sense of justice.

State of West Virginia ex rel. James H. Paige, III, Secretary/Tax Commissioner of the West Virginia Department of Tax and Revenue v. Honorable Herman G. Canady Jr., Judge of the Circuit Court of Kanawha County, James M. Sturgeon, Jr., and Carolyn S. Sturgeon, No. 23273 (July 17, 1996) (Albright, J.): 197 W. Va. 154, 475 S.E.2d 154:

Prohibiting enforcement of a subpoena against the state tax commissioner in a FOIA action, the Court held (1) highly-placed public officials are not subject to deposition absent a showing that their testimony is necessary to avoid undue prejudice; (2) in determining whether to permit the deposition of a highly-placed official, the court should consider (i) the nature of the underlying case, (ii) the degree to which the official has first-hand knowledge about or had direct involvement in the matter in dispute, (iii) the probable length of the deposition and the effect of the official=s absence on the conduct of his or her office, and (iv) whether other discovery alternatives are available that would provide the information sought by deposition; and (3) the burden is upon the party requesting the deposition of a highly-placed public official to demonstrate its necessity.

State of West Virginia ex rel. United States Fidelity and Guaranty Company and Tim Linsky v. Honorable Herman G. Canady, Jr., Judge of the Circuit Court of Kanawha County, and Robert M. Lovell, No. 22867 (July 11, 1995)(Cleckley, J.): 194 W. Va. 431, 460 S.E.2d 677:

Shelley S. McDougal and David L. McDougal v. Julie K. McCammon, M.D., No. 22215 (February 17, 1995)(Cleckley, J.): 193 W. Va. 229, 455 S.E.2d 788:

State of West Virginia ex rel. Ethel G. Erickson v. Honorable George Hill, Judge of the Circuit Court of Wood County, and Charles F. Erickson, Executor of the Estate of Charlie O. Erickson, No. 22197 (May 26, 1994)(Neely, J.): 191 W. Va. 320, 445 S.E.2d 503:

State of West Virginia ex rel. Maurillo Chaparro and Susan Chaparro, husband and wife v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County; Grove's Furniture Store; Dennis Grove, individually; and Southland Corporation, No. 21903 (December 9, 1993)(Neely, J.): 190 W. Va. 395, 438 S.E.2d 575:

State of West Virginia ex rel. Joan B. Kitzmiller, Executrix of the Estate of Eugene O. Kitzmiller v. Honorable John L. Henning, Jr., Judge of the Circuit Court of Randolph County; Paul Eugene Nefflen, M.D.; and Davis Memorial Hospital, a West Virginia corporation, No. 21841 (November 2, 1993)(Neely, J.): 190 W. Va. 142, 437 S.E.2d 452:

State of West Virginia ex rel. John David Letts, an infant under the age of 18 years who sues by his parents and next friends, et al. v. Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County; Charleston Area Medical Center, Inc., a West Virginia corporation; and Ellen Szego, M.D., No. 21599 (July 16, 1993)(Workman, C.J.): 189 W. Va. 616, 433 S.E.2d 554:

Catherine Young v. Joseph Saldanha, No. 21274 (April 23, 1993)(Workman, C.J.): 189 W. Va. 330, 431 S.E.2d 669:

Rejecting a malpractice plaintiff's argument that the defendant physician waived the statutory peer review privilege by virtue of his suit to obtain peer review material following revocation of his staff privileges, the Court held that to effect a waiver of the privilege of confidentiality which attends information and records properly the subject of health care peer review pursuant to W. Va. Code '' 30-3C-1 to -3, an individual must formally indicate his intent to waive confidentiality by executing a valid waiver.

State of West Virginia ex rel. Donald C. McCormick v. Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County; Allstate Insurance Company, an Illinois corporation; and David Dailey, No. 21458 (February 25, 1993)(Miller, J.): 189 W. Va. 258, 430 S.E.2d 316:

State Farm Automobile Insurance Co. v. Honorable Booker T. Stephens Judge of the Circuit Court of McDowell County, Donald Ray Perkins, and Sheila D. Perkins, No. 21368 (December 16, 1992)(Miller, J.): 188 W. Va. 622, 425 S.E.2d 577:

State ex rel. Teresa Fearnow Shroades v. Honorable Patrick G. Henry, Judge of the Circuit Court of Berkeley County, No. 21167 (July 22, 1992)(Neely, J.): 187 W. Va. 723, 421 S.E.2d 264:

Reversing an order which denied a discovery request for certain hospital records in a medical malpractice case, the Court held that (1) under W. Va. Code ' 30-3C-1, et seq., governing medical peer review organizations, the determination of what materials are privileged is a factual question with the party asserting the privilege having the burden of proof; (2) W. Va. Code ' 30-3C-3, which protects "records and proceedings of a review organization," does not extend to anything considered by a review organization which is "otherwise available from original sources;" and (3) trial courts should conduct an in camera inspection of documents sought to be protected under the medical peer review organization statute.

Dorothy Dent v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, Jack Fruth, and Fruth Pharmacy, Inc, a corporation, No. 20086 (June 6, 1991) (Neely, J.): 185 W. Va. 171, 406 S.E.2d 68:

Delbert Nutter, Dana Nutter, and Edna Nutter, Committee and next friend of Linda Mullins, and Thomas Mullins v. Honorable Elliott E. Maynard, Judge of the Circuit Court of Mingo County; Wyeth Laboratories, and Wyeth Laboratories, Inc.; Nicholas County Health Department; Nicholas County Family Planning Clinic; William Lester, M.D.; and Robert E. Fleer, M.D., No. 19460 (June 21, 1990)(Workman, J.): 183 W. Va. 247, 395 S.E.2d 491:

Ronald Luster and Sharon Luster v. James E. Brown, No. CC994 (October 30, 1989) (Brotherton, C.J.): 182 W. Va. 122, 386 S.E.2d 489:

Susan Willis, et al. v. Wal-Mart Stores, Inc., et al., No. 24152 (June 24, 1998)(Workman, J.): 202 W. Va. 413, 504 S.E.2d 648:

Answering questions certified from the U.S. District Court for the Southern District of West Virginia with respect to the W. Va. Human Rights Act, W. Va. Code ' 5-11-1, et seq., the Court held, inter alia, as follows: discrimination based upon same-gender sexual harassment is a recognized cause of action under the Act.

West Virginia Human Rights Commission, on its own behalf and on behalf of Caprice A. Stephen v. Wilson Estates, Inc., a West Virginia corporation, and Brian K. Wilson, No. 24142 (May 18, 1998)(Workman, J.)(Maynard, J. and McCuskey, J., concurring): 202 W. Va. 152, 503 S.E.2d 6:

Reversing and remanding the trial court=s order of summary judgment in a suit for discrimination under the West Virginia Fair Housing Act, W. Va. Code ' 5-11A-1, et seq. (1995), the Court held, inter alia, that a cause of action exists for discrimination directed against a tenant based on the race of those individuals with whom the tenant chooses to associate.

West Virginia Human Rights Commission on its own Behalf and on Behalf of Jr. Mitchell v. John Garretson, No. 23078 (February 15, 1996) (Cleckley, J.): 196 W. Va. 118, 468 S.E.2d 733:

Reversing the dismissal of a housing discrimination suit not instituted within the thirty-day period prescribed by W. Va. Code ' 5-11A-13(o)(1), the Court held that (1) Human Rights Commission complainants have a property interest in their complaints that cannot be extinguished except by a ruling on the merits or upon a showing of good cause related to the complainants= actions or failure to act and (2) dismissal of a housing discrimination suit, which has been timely and properly filed with the Human Rights Commission, because of its failure to timely remove the case to circuit court as provided W. Va. Code ' 5-11A-13(o)(1), would deprive the complainant of his or her property interest in the resolution of the complaint without due process of law, and is therefore improper.

Larry E. Paxton v. State of West Virginia Department of Tax and Revenue, No. 22218 (November 23, 1994)(Miller, J.): 192 W. Va. 213, 451 S.E.2d 779:

Affirming a circuit court ruling that the State has an obligation to ensure that its lottery outlets are physically accessible to the disabled, the Court held that because the Lottery Commission is a public entity within the meaning of the Americans with Disabilities Act and provides an aid, benefit, or service on a continuing basis to its licensees, its licensing of lottery outlets is governed by 28 C.F.R. ' 35.130(b)(1), which precludes a public entity that provides any aid, benefit, or service from allowing disability discrimination through contractual, licensing, or other arrangements.

Willis Layne, Jr. v. West Virginia Child Support Enforcement Division, No. 24637 (July 2, 1998)(Maynard, J.): ___ W. Va. ___, 505 S.E.2d 412:

Affirming the grant of a permanent injunction against the Division in a child support arrearages case, the Court held, inter alia, that when an obligor owes matured, unpaid child support arrearages, the mandatory procedure which must be followed prior to instituting automatic withholding of the obligor=s income is set forth in W. Va. Code ' 48A-5-2.

Michael D.C. v. Wanda L. C., No. 23937 (October 24, 1997)(Davis, J.): 201 W. Va. 381, 497 S.E.2d 531:

Affirming in part, reversing in part and remanding, the Court ruled, inter alia, (1) the statutory defenses to adultery set forth in W. Va. Code '48-2-14 (1996) are affirmative defenses which must be proven by clear and convincing evidence by the party asserting the defense(s) and (2) acts of sexual misconduct by a mother, albeit wrongs against an innocent spouse, may not be considered as evidence going to the fitness of the mother for child custody unless her conduct is so aggravated, given contemporary moral standards, that reasonable men would find that her immorality, per se, warranted a finding of unfitness because of the deleterious effect upon the child of being raise by a mother with such a defective character. In addition, the Court set forth various factors which lower courts should consider in assessing circumstantial proof of adultery. The case was reversed and remanded for the sole purpose of setting out adequate findings on the distribution of marital property.

Pamela Jane Griffis v. James Lyle Griffis, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, AND Kimberly O. Shreve v. Steve Allen Shreve, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, AND Shirley Diann Mitchell v. Thomas G. Mitchell, Child Support Enforcement Division, West Virginia Department of Health and Human Resources, Nos. 24628, 24629 and 24630 (May 21, 1998)(Davis, C. J.):202 W. Va. 203, 503 S.E.2d 516:

Answering questions certified to it from the Circuit Court of Boone County, the Court stated, as follows: [1] when the parents of a minor child or children marry or remarry, and sums of child support subsequently due under a preexisting child support order, entered by a court of competent jurisdiction, regarding the child or children, automatically terminates and no further child support will accrue under that order from the date of the subsequent marriage forward. However, where the parties do not marry or remarry, but simply cohabit, the preexisting order does not automatically terminate, but remains in full effect, and the child support obligation continues as defined in the order; [2] when a valid court order required payment of child support by one parent to another, and the parent who is required to make such payments has failed to make any or all of the required child support payments, the subsequent marriage or remarriage of the parents does not operate to nullify the arrearages that accumulated prior to such marriage or remarriage; [3] when a parent has assigned to the state child support arrearages that accumulated pursuant to a valid court order prior to the marriage of parents or remarriage of divorced parents, the subsequent marriage or remarriage of the parents does not inhibit the state=s right to collect the child support arrearages.

Letitia Danette Huber v. James Patrick Huber, No. 23407 (June 11, 1997)(Davis, J.): 200 W. Va. 446, 490 S.E.2d 48

Reversing a divorce order granting plaintiff ex-wife 10% of defendant ex-husband=s $475,000 personal injury settlement as compensation for loss of consortium, the Court ruled that (1) the non-injured spouse has the burden of proving the amount of a tort settlement or verdict allocated for loss of consortium, which is the separate non-marital property of the non-injured spouse; (2) the injured spouse has the burden of proving the amount of a tort settlement or verdict allocated for non-economic and post-divorce loss, which is the separate non-marital property of the injured spouse; and (3) to the extent the parties do not provide sufficient evidence to make an allocation of all of a tort settlement or verdict, the balance shall be classified as marital property subject to equitable distribution. The Court held that the circuit court and the family law master failed to make adequate findings of fact to establish what portions of the settlement were marital and non-marital property and remanded for further proceedings.

James M. Porter v. Stephanie A. Bego, No. 23473 (May 12, 1997)(Starcher, J.): 200 W. Va. 168, 488 S.E.2d 443:

Barbara Ann Spence v. Mark Vernon Spence, No. 23751 (May 12, 1997)(Starcher, J.): 199 W. Va. 609, 486 S.E.2d 778:

Affirming a ruling awarding defendant ex-husband the dependent income tax exemption for the parties= infant child, the Court ruled that while the family law master should have considered the income of plaintiff=s husband in determining her household income, the record did not show that the award of the exemption to the non-custodial parent was inequitable in this case.

Karen Pearson v. Roger Pearson, No. 23679 (March 21, 1997)(Davis, J.): 200 W. Va. 139, 488 S.E.2d 414:

Affirming, in part, and reversing, in part, and remanding for further proceedings in plaintiff ex-wife=s appeal of an alimony award and property division in a divorce action, the Court held that (1) the circuit court failed to make appropriate findings of fact to warrant an award of $375 per month in permanent alimony where the family law master recommended only $150 per month and to justify denial of attorney fees to the legal aid service which represented plaintiff; (2) plaintiff failed to adduce sufficient evidence to warrant an additional lump sum award of alimony to compensate her for alleged physical and emotional abuse during the marriage; (3) the circuit court did not err in terminating alimony once defendant ex-husband reaches 65 or not granting plaintiff a set-off in property distribution based on defendant=s anticipated receipt of retirement benefits statutorily excluded from consideration as property subject to equitable distribution under the Railroad Retirement Act of 1974; (4) the circuit court erred in issuing restraining orders against the parties pursuant to W. Va. Code, 48-2-15(b)(9) without a finding of abuse; and (5) there was insufficient evidence to conduct a meaningful review of whether the circuit court erred in awarding a credit union account to defendant.

State of West Virginia ex rel. George B. W. v. Honorable Tod J. Kaufman, Judge of the Circuit Court of Kanawha County, and Sharon B. W., No. 23927 (March 3, 1997) (Workman, C.J.): 199 W. Va. 269, 483 S.E.2d 852:

Granting a moulded writ of prohibition to prevent enforcement of an order mandating immediate visitation between the child and the mother and requiring an additional psychological evaluation of the child following an award of emergency custody to the father on allegations of sexual abuse of the child in the mother=s home, the Court held that the circuit court exceeded its legitimate authority in ordering mandatory visitation and a psychological evaluation without holding a hearing to determine whether such actions were in the best interest of the child and remanded for an immediate hearing on the visitation issue and a hearing on the evaluation issue.

Katrina Rae Carter v. Henry Denzil Carter, No. 23253 (November 18, 1996)(McHugh, C. J.): 198 W. Va. 171, 479 S.E.2d 681:

Reversing an order reducing a $16,800 child support arrearage by $4000 to punish the mother for preventing visitation, the Court ruled that even though a custodial parent has interfered with or discouraged visitation between a noncustodial parent and the parties= children, a circuit court does not have authority to reduce the amount of accrued child support arrearages owed by the noncustodial parent in order the punish the custodial parent for such interference with or discouragement of visitation.

Scott E. Petruska v. Brigitte I. Petruska, No. 22981 (November 15, 1996)(Recht, J.): 200 W. Va. 79, 488 S.E.2d 354:

Affirming, in part, and reversing, in part, an alimony award in a divorce action, the Court held that the circuit court (1) erred in terminating rehabilitative alimony during the dependency of the parties= daughter without considering the disparity in the incomes of the parties and defendant=s role as a stay-at-home mother; (2) did not abuse its discretion in not allowing plaintiff ex-husband credit for temporary support payments which exceeded the amount of the final support awarded; and (3) did not err in not requiring plaintiff to pay $850 per month in additional child support to support his daughter=s swimming training.

Tammera L. Smith v. Clyde Ellsworth Smith, III, No. 23267 (July 19, 1996)(Workman, J.): 197 W. Va. 505, 475 S.E.2d 881:

Reversing a ruling that the appreciation of separately-owned, closely-held corporate stock, during the marriage, was the husband=s separate property, the Court held that where one spouse worked for a corporation, during the marriage, as an officer or director, and had a significant, separate ownership interest in such corporation, and where the other spouse also worked for the corporation during the marriage as an employee, at least such portion of the appreciation in the value of corporate stock during the marriage attributable to the active involvement of each spouse must be deemed marital property.

Searene Two Feathers Rock v. Orval Bahe Rock v. West Virginia Department of Health and Human Resources, No. 23064 (July 19, 1996) (Workman, J.): 197 W. Va. 448, 475 S.E.2d 540:

Where a mother fled to West Virginia after a Maryland court awarded visitation rights to a father whom their child accused of sexually molesting her, and where the Maryland court eventually awarded custody to the father, the Court affirmed the circuit court=s ruling that jurisdiction under the UCCJA was proper in Maryland, holding that upon verification by a West Virginia court that a custody proceeding is pending in another state and that the other court desires to continue to assert jurisdiction pursuant to the UCCJA, the West Virginia court is mandated under W. Va. Code ' 48-10-6a to defer jurisdiction to the other court.

Lisa S. Rogers v. Robert Alan Rogers, No. 23075 (July 11, 1996)(Recht, J.): 197 W. Va. 365, 475 S.E.2d 457:

Where husband=s adultery was found to have contributed to the divorce, but wife was awarded only $100 monthly rehabilitative alimony for a period of five years, the Court reversed and remanded, holding that punitive alimony may be awarded where additional support is required to (i) reimburse the innocent spouse for expenses related to the fault, e.g., psychological counseling; (ii) assure the innocent spouse continues to enjoy the standard of living attained during the marriage; and (iii) discourage the behavior that contributed to dissolution of the marriage.

Nancy H. Mayhew v. Robert E. Mayhew, No. 23263 (July 5, 1996)(Albright, J.): 197 W. Va. 290, 475 S.E.2d 382

With respect to several issues presented in a divorce proceeding, the Court held (1) with respect to a business in which one or both of the spouses had an interest during the marriage, any appreciation in the value of such business during the marriage arising from the investment of marital property or the work of either party in the business is equitable property; (2) a party asserting that property is marital or separate has the burden of proof; (3) although the right to receive rehabilitative alimony terminates with the payee=s death, such alimony should continue upon the payor=s death unless his or her estate is insufficient to meet other obligations or other equitable principles apply; (4) a court may compel either party to pay the other=s reasonable attorney fees and costs in a divorce proceeding; and (5) whether claims or defenses in a divorce proceeding have been asserted for vexatious, wanton or oppressive purposes is a relevant consideration in determining the award of attorney fees and costs.

Penny A. Kyle v. Edward D. Kyle, No. 23061 (July 5, 1996)(Albright, J.): 197 W. Va.. 252, 475 S.E.2d 344:

Marshall Costello, Administrator of the Estate of Donna F. McDonald Costello v. Michael McDonald, No. 22854 (June 14, 1996) (McHugh, C.J.): 196 W. Va. 450, 473 S.E.2d 736:

With respect to the right to child support arrearages upon the death of the obligee, the Court held (1) upon death of a child support obligee, there is a presumption that the obligee=s estate is entitled to any arrearages; (2) the presumption of ownership of arrearages in a child support obligee=s estate may be rebutted by clear and convincing evidence that the welfare of the child[ren] was [were] adversely affected by the obligor=s failure to pay support during the life of the obligee; and (3) if the presumption is rebutted, the court must determine the amount of the arrearage which should be given to the child[ren] to ensure the child[ren]=s maintenance in the standard of living to which the child[ren] has [have] become accustomed.

State of West Virginia ex rel. West Virginia Department of Health and Human Resources, Child Advocate Office, on Behalf of Jason Gavin S. by Diann S. v. Carl Lee H., No. 23108 (June 14, 1996)(McHugh, C.J.): 196 W. Va. 369, 472 S.E.2d 815:

Where paternity action was not instituted until 14 years after the birth of the child, allegedly because the mother did not realize until years later that she had been sexually assaulted by the defendant while she was unconscious after having become intoxicated at a party, the Court reversed the circuit court=s application of the doctrine of laches, reinstating a child support obligation of nearly $100,000, holding that (1) where a plaintiff delays instituting a paternity action due to being misled by the defendant regarding facts necessary to cause the plaintiff to be aware of the right to institute such action, the doctrine of laches does not apply and (2) if a plaintiff does not institute a paternity action within a reasonable time after learning of the facts necessary to create awareness of the right to institute such action, then the doctrine of laches is available if the defendant can demonstrate that the delay worked to his detriment.

George M. Banker v. Anne F. Banker, No. 22166 (May 17, 1996)(Cleckley, J.): 196 W. Va. 535, 474 S.E.2d 465:

Reversing a divorce decree and remanding with respect to alimony and attorney fees, the Court held (1) under W. Va. Code ' 48-2-15(e), a circuit may modify a divorce decree to include alimony even where the decree expressly denied alimony or failed to address the issue, overruling Savage v. Savage, 157 W. Va. 537, 203 S.E.2d 151 (1974); (2) when a party to a divorce neglects to assert a claim for alimony for an unreasonable and unexplained length of time to the prejudice of the other party, relief may be denied pursuant to the doctrine of laches; (3) for the doctrine of laches to bar an award of alimony, the passage of time is alone insufficient, rather the circuit court must consider the circumstances surrounding the delay and the nature of prejudice to the other party; (4) the factors to be considered in determining whether to award attorney fees in a divorce action include (i) the party=s financial ability to pay his or her own fee, (ii) the beneficial results obtained by the attorney, (iii) the respective financial conditions of the parties, (iv) the effect of attorney fees on each party=s standard of living, (v) the respective degree of fault in the deterioration of the marriage, and (v) the reasonableness of the attorney fee; and (5) the award of attorney fee rests within the sound discretion of the family law master and should not be disturbed on appeal absent an abuse of such discretion.

Diana Lynn nee Spears Carter v. Lonnie Elmer Carter, No. 22904 (March 21, 1996)(Recht, J.): 196 W. Va. 239, 470 S.E.2d 193:

Affirming an order holding a mother in contempt for interference with the father=s visitation rights, but remanding for a gradual resumption of unsupervised visitation, the Court held (1) a civil contempt order is reviewed generally under an abuse of discretion standard, its findings of fact under a clearly erroneous standard, and its conclusions of law under a de novo standard; (2) where there are allegations of sexual or other abuse of a child, the circuit court and family law master should weigh the risk of harm of supervised visitation or the complete deprivation of visitation if the allegations are false against the risk of harm of unsupervised visitation if the allegations are true; (3) in order to minimize the physical and psychological harm to the child, supervised visitation, if previously ordered, should be gradually phased out if it is determined that the allegations that supported supervision are not supported by credible evidence or that the noncustodial parent presently poses no threat of harm to the child; and (4) the best interest of the child are of paramount importance with regard to both visitation and custody.

Grant Preece v. Eva Preece, No. 22861 (December 15, 1995)(Workman, J.): 195 W. Va. 460, 465 S.E.2d 917:

Concluding that the circuit court had insufficient information to make a determination that the terms of a property settlement agreement were fair and equitable, the Court held that use of the phrase, A[i]n all divorce actions,@ in W. Va. Code ' 48-2-33, indicates that financial disclosure should occur in all divorce cases, and the existence of a separation agreement does not alleviate the necessity of complying with such requirement.

Barbara Graham v. Simon Graham, No. 22701 (November 17, 1995)(Miller, J.): 195 W. Va. 343, 465 S.E.2d 614:

Sheila L., on behalf of Ronald M.M., an infant v. Ronald P.M., No. 22794 (October 27, 1995)(Cleckley, J.): 195 W. Va. 210, 465 S.E.2d 210:

Reversing an order giving full faith and credit to an Ohio custody decree, the Court held (1) a court may continue its jurisdiction under the Parental Kidnapping Prevention Act, if it has made a custody determination consistent with the provisions of 28 U.S.C. ' 1738A(d), if it maintains jurisdiction under its law, and if either the child or a contestant continues to reside in the state; (2) a Acustody determination@ under the PKPA is a judgment, decree, or other order of a court providing for the custody or visitation of a child, including permanent, temporary, initial, and modified orders; (3) to assume emergency jurisdiction under the PKPA, (i) a court must have jurisdiction under its own law, (ii) the child must be physically present in the state, and (iii) the child must be either abandoned or in an emergency situation that necessitates action to protect the child from being subjected to or threatened with mistreatment or abuse; (4) unsubstantiated allegations of abuse or mistreatment are alone insufficient to invoke jurisdiction under the PKPA to permit entry or modification of a permanent custody order; (5) if emergency jurisdiction is based upon the unsubstantiated statements of a parent, additional evidence should be adduced as quickly as possible to affirm or negate the allegations and temporary jurisdiction should last only so long as the emergency exists or until a court that has jurisdiction to enter or modify a permanent custody award is apprised of the situation and accepts responsibility to ensure that the child is protected; and (6) emergency child custody matters should be among those cases given priority and resolved as quickly as reasonably feasible.

James Garland Casdorph, Jr. v. Shela Gail Casdorph, No. 22687 (July 13, 1995)(Workman, J.): 194 W. Va. 490, 460 S.E.2d 736:

Camilla M. Boyle and Charles E. Bradley v. Robert E. Boyle, No. 22564 (June 16, 1995)(Fox, J.): 194 W. Va. 124, 459 S.E.2d 401:

Carlos James Burnside v. Jacquelyn Nagle Burnside, No. 22399 (March 24, 1995)(Cleckley, J.): 194 W. Va. 263, 460 S.E.2d 264:

Stephen L.H. v. Sherry L.H., No. 22084 (March 6, 1995)(Cleckley, J.): 195 W. Va. 384, 465 S.E.2d 841:

David Lee White v. Janet C. Williamson, No. 22040 (December 21, 1994)(Workman, J.): 192 W. Va. 683, 453 S.E.2d 666:

Dana Ruth Musick v. Lynn Allen Musick, No. 22344 (December 15, 1994)(Workman, J.): 192 W. Va. 527, 453 S.E.2d 361:

Pamela Katherine Henry v. Diana L. Johnson, Family Law Master of Mason County, and Howard Lee Henry, No. 22030 (October 28, 1994)(Neely, J.): 192 W. Va. 82, 450 S.E.2d 779:

State of West Virginia ex rel. Gretchen Lewis Chafin v. Honorable Robert C. Halbritter, Special Judge of the Circuit Court of Mingo County, and H. Truman Chafin, No. 22104 (July 21, 1994)(Workman, J.): 191 W. Va. 741, 448 S.E.2d 428:

Sydney O. Metzner v. William R. Metzner, No. 21380 (May 27, 1994)(Brotherton, J.): 191 W. Va. 378, 446 S.E.2d 165:

In an important case to lawyers involved in divorce proceedings, the Court held (1) when a contingency fee contract is executed during the marriage, it constitutes "marital property" within the meaning of W. Va. Code ' 48-2-1(c)(1); (2) accounts receivable, such as unpaid attorney fees, are assets with a value that can be ascertained as of the date of separation, and are to be considered marital property for purposes of equitable distribution; (3) contingent fees for cases pending at the time of separation should be treated as marital property; (4) only that portion of a contingency fee representing compensation for work done during the marriage constitutes marital property, and (5) courts must retain continuing jurisdiction in order to determine the manner in which to effectuate an equitable distribution of contingency fees.

State of West Virginia ex rel. Ethel G. Erickson v. Honorable George Hill, Judge of the Circuit Court of Wood County, and Charles F. Erickson, Executor of the Estate of Charlie O. Erickson, No. 22197 (May 26, 1994)(Neely, J.): 191 W. Va. 320, 445 S.E.2d 503:

Cleo A.E. v. Rickie Gene E. v. Amber Dawn E. and the West Virginia Department of Health and Human Resources, No. 21704 (December 16, 1993)(Workman, C.J.): 190 W. Va. 543, 438 S.E.2d 886:

Rebecca White Ball (formerly Wills) v. Mark E. Wills, No. 21608 (December 15, 1993)(Workman, C.J.): 190 W. Va. 517, 438 S.E.2d 860:

Georgia Boarman v. Raymond T. Boarman, No. 21814 (December 15, 1993)(Workman, C.J.): 190 W. Va. 533, 438 S.E.2d 876:

Mary Nelle Wood v. Craig Herbert Wood, Jr., No. 21764 (December 10, 1993)(Workman, C.J.): 190 W. Va. 445, 438 S.E.2d 788:

Addressing several issues related to alimony and child support, the Court held (1) when a circuit court fails to properly apply the child support guidelines, an award on appeal shall be made retroactive to the date of the petition; (2) when the circumstances warrant, rehabilitative alimony may be extended, modified, or converted to permanent alimony; (3) in order to determine when circumstances warrant a change in rehabilitative alimony, the circuit court should consider (i) the recipient's potential work skills, (ii) employment conditions in the recipient's community, (iii) the recipient's age, health, and skills, and (iv) the recipient's inability to fulfill the expectations of the initial award; (4) once the automatic stay is lifted in a bankruptcy proceeding, a circuit court may award attorney fees; (5) in order to make an award of attorney fees nondischargeable under 11 U.S.C. ' 523(a)(5), the circuit court should designate such fees as in the nature of support, alimony, or maintenance; and (6) attorney fees are in the nature of support, alimony, or maintenance when incurred in an effort to obtain child support, alimony, or maintenance.

John D.K. v. Polly A.S., No. 21777 (November 23, 1993)(Miller, J.): 190 W. Va. 254, 438 S.E.2d 46:

Clarifying several issues related to domestic relations procedure, the Court held (1) in the absence of a statutory period of limitation, a circuit court may review a family law master's recommended order even if no timely exceptions are filed; (2) a circuit court or family law master may order a home study be performed to investigate allegations of abuse and neglect in a domestic relations proceeding; and (3) it is mandatory, pursuant to W. Va. Code ' 49-6A-2, for any circuit judge, family law master, or magistrate having reasonable cause to suspect abuse or neglect to file an immediate report with the division of human services.

State of West Virginia ex rel. Donna Ann Hendricks v. Honorable John S. Hrko, Judge of the Circuit Court of Wyoming County, and James Hendricks, Jr., No. 21567 (July 22, 1993)(Miller, J.): 189 W. Va. 674, 434 S.E.2d 34:

Clayton E. Higginbotham v. Juanita J. Higginbotham, No. 21215 (June 28, 1993)(Miller, J.): 189 W. Va. 519, 432 S.E.2d 789:

Where circuit judge modified family law master's findings of fact after conducting a series of hearings when the family law master hearing tapes were found to be inaudible, the Court reversed, holding (1) W. Va. Code ' 48A-4-10(c) limits a circuit judge's ability to alter the family law master's findings and conclusions unless they fall within one of the six categories, and (2) W. Va. R. Civ. P. 52(a) requires specific findings of fact and conclusions of law by a circuit court when altering the findings and conclusions of a family law master.

Michael L. Robinson v. Debra Catherine Robinson McKinney, No. 21549 (June 24, 1993) (McHugh, J.): 189 W. Va. 459, 432 S.E.2d 543:

Where parties agreed to change custody of their child without court approval, the Court held that (1) the ten-year statute of limitations of W. Va. Code ' 38-3-18 and not the doctrine of laches applies to enforcement of a child or spousal support order, and (2) an agreement to modify or terminate child support is ordinarily effective upon entry of an order pursuant to W. Va. Code ' 48-2-15(3).

Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (April 23, 1993)(Brotherton, J.): 189 W. Va. 222, 429 S.E.2d 504:

State of West Virginia ex rel. Gail Treadway, now Charlotte Richmond, Child Protective Service Worker, West Virginia Department of Health & Human Resources v. Richard McCoy, Father; Willard McCoy, Infant; Angela Pearl Meadows Infant; Cletus Browning and Janet Browning, His Wife, Foster Parents, No. 21460 (April 8, 1993)(Neely, J.): 189 W. Va. 210, 429 S.E.2d 492:

Kenneth R. Simmons v. Loretta L. Comer, No. 21459 (April 2, 1993)(Miller, J.): 190 W. Va. 350, 438 S.E.2d 530:

Elizabeth Ellen Phillips v. Harold Phillips, No. 21218 (December 16, 1992)(McHugh, C.J.): 188 W. Va. 692, 425 S.E.2d 834:

State of West Virginia ex rel. Patricia Ann Stutler v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Brady Ralph Paxton, No. 21344 (December 14, 1992)(Workman, J.): 188 W. Va. 426, 424 S.E.2d 771:

Rejecting a mother's contention that wage withholding could be instituted when the number of days her husband's child support payments were late exceeded thirty, the Court held that in order to institute wage withholding pursuant to W. Va. Code ' 48-2-15b(2), the obligor must have failed to pay an amount equal to the support payable for one support period.

Anna Marie Jeffrey v. Mark Jeffrey, No. 20922 (December 14, 1992)(Workman, J.): 188 W. Va. 476, 425 S.E.2d 152:

Erin Lufft, now Erin Campbell v. James Lufft, No. 20918 (November 25, 1992)(Brotherton, J.): 188 W. Va. 339, 424 S.E.2d 266:

State of West Virginia ex rel. Lora Dillon v. Honorable L. D. Egnor, Judge of the Circuit Court of Cabell County, and Robert K. Means, in his official capacity as Family Law Master for Cabell County, No. 21296 (October 23, 1992)(Miller, J.): 188 W. Va. 221, 423 S.E.2d 624:

Clarifying divorce procedure in all cases, but especially those involving pro se litigants, the Court held (1) a circuit judge is authorized, pursuant to W. Va. Code ' 48A-4-1(i), to refer divorce cases to a family law master for hearing, except in uncontested cases or where child custody or support is not involved and a written property settlement agreement has been signed; (2) a family law master is required, pursuant to W. Va. Code ' 48A-4-4(b), to submit a recommended order within ten days following the close of evidence; (3) all recommended orders shall include, pursuant to W. Va. Code ' 48A-4-4(e), findings of fact and conclusions of law on all material issues of fact, law, or discretion, appearing on the record, as well as the appropriate sanction, relief, or denial thereof; (4) where a circuit court agrees with the recommended order in cases involving pro se litigants, the judge may endorse the recommended order or may issue a brief order incorporating the findings and conclusions by reference; (5) where a circuit court disagrees with the recommended order, the judge may issue an order identifying alternative findings and conclusions, but incorporating by reference the approved portions of the recommended order; (6) the family law master, not unrepresented litigants, has the obligation of preparing the recommended order; and (7) the circuit court, not unrepresented litigants, has the obligation of preparing the final order.

Darlene Belcher and Melissa Arnold v. Mary Terry, Acting Director of the Child Advocate Office, et al., No. 20530 (July 16, 1992)(Workman, J.): 187 W. Va. 638, 420 S.E.2d 909:

Addressing a problem with child support obligors' seeking employment for which they are paid in cash in order to avoid wage withholding, the Court held (1) W. Va. Code ' 48A-5-3(o) makes it a misdemeanor for an employer to knowingly and willingly conceal income being paid to a child support obligor in order to avoid wage withholding; (2) an employer is liable to the obligee for any amount of child support which the employer fails to withhold from the obligor's wages due to an agreement between the employer and the obligor for cash payments in order to avoid such withholding; (3) in order to recover from an employer, an obligee must present clear and convincing evidence that the cash payments were made in order to avoid wage withholding for the obligor; (4) an employer can be liable to an obligee for punitive damages when the employer enters into an agreement with an obligor for cash payments in order to avoid wage withholding; (5) an obligee has a separate cause of action, independent of the Child Advocate Office, against an employer and obligor who enter into an agreement for cash payments in order to avoid wage withholding; and (6) the Child Advocate Office has a cause of action against an employer and obligor who enter into an agreement for cash payments in order to avoid wage withholding.

Mary D. v. Honorable Clarence Watt, Judge of the Circuit Court of Putnam County, and George D., No. 20453 (May 29, 1992)(McHugh, C.J.): 190 W. Va. 341, 438 S.E.2d 521:

State of West Virginia ex rel. Robert S. Sullivan v. Honorable Clarence L. Watt, Judge of the Circuit Court of Putnam County, and Ruth D. Sullivan, No. 20921 (May 29, 1992)(Miller, J.) 187 W. Va. 447, 419 S.E.2d 708:

State of West Virginia ex rel. Naoma Lee Smith v. Honorable W. Robert Abbott, Judge of the Circuit Court of Fayette County, and Christopher Duke King, No. 20854 (May 15, 1992)(Brotherton, J.): 187 W. Va. 261, 418 S.E.2d 575:

Virginia Ann Sly (Topping) v. James Howard Sly, No. 20167 (April 3, 1992)(McHugh, C.J.): 187 W. Va. 172, 416 S.E.2d 486:

Lewis H. Rexroad v. Constance L. Rexroad, No. 20154 (February 7, 1992)(Miller, J.): 186 W. Va. 696, 414 S.E.2d 457:

Where husband received substantial, regular overtime pay, the Court held that, in calculating the amount of spousal or child support, consideration may be given to overtime pay ordinarily obtained. Where wife refused to communicate with husband for long periods, with the last silent treatment lasting 9 months, the Court held that W. Va. Code ' 48-2-15(i) bars alimony only where the party (1) has committed adultery; (2) has been convicted of a felony; and (3) has abandoned or deserted the other spouse for six months, but in other situations where fault is considered in awarding alimony, the court or master shall consider and compare the fault or misconduct of either or both of the parties and the effect of such fault or misconduct on the deterioration of the marital relationship.

Margie Isabell Hardy v. Larry Vernon Hardy, No. 19936 (December 19, 1991)(Brotherton, J.): 186 W. Va. 496, 413 S.E.2d 151:

Mary B. Holstein v. Elborn Holstein, No. 19835 (December 19, 1991)(Miller, C.J.): 186 W. Va. 385, 412 S.E.2d 786:

Betty Jo Summers, n/k/a Betty Jo Kidd v. Samuel David Summers, Jr., AND Betty Jo Summers, n/k/a Betty Jo Kidd v. Samuel David Summers, Jr., Nos. 19965 and 19896 (December 18, 1991)(Workman, J.): 186 W. Va. 635, 413 S.E.2d 692:

Erma Farley v. Max Farley, Sr. and State of West Virginia ex rel. Department of Health and Human Resources v. Max Farley, Sr., No. 19902 (December 12, 1991)(Neely, J.): 186 W. Va. 263, 412 S.E.2d 261:

Estaline Charlton v. Howard S. Charlton, Jr., No. 19763 (December 6, 1991)(Miller, C.J.): 186 W. Va. 670, 413 S.E.2d 911:

Susan Carolyn Pyle v. Honorable A.L. Sommerville, Circuit Judge of Webster County, Battle Ridge Coal Co., and Michael Stevenson Pyle, No. 20418 (November 20, 1991) (Neely, J.)(as modified): 186 W. Va. 177, 411 S.E.2d 696:

Reversing a trial court's injunction against income withholding in favor of other measures to secure payment of support, the Court held that W. Va. Code ' 48-2-15b provides for automatic income withholding of child support payments without further court action when one of five statutory criteria is met, and a circuit court may only issue an order staying withholding when it was commenced pursuant to either of the first two statutory criteria.

Wanda June McGraw v. William Raymond McGraw, No. 19758 (November 1, 1991)(Neely, J.): 186 W. Va. 113, 411 S.E.2d 256:

Resolving a dispute concerning the status of railroad retirement benefits, the Court held that although the Railroad Retirement Act, 45 U.S.C. ' 231m, precludes considering as marital property the basic railroad retirement annuity, which is equivalent to social security benefits, the Railroad Retirement Solvency Act, 45 U.S.C. ' 231m(b) (2), allows any supplemental railroad annuity to be considered as divisible marital property.

Carol A. Lozinski v. John M. Lozinski, Jr., No. 19623 (July 17, 1991)(Workman, J.): 185 W. Va. 558, 408 S.E.2d 310:

Where, for purposes of litigating support and property issues, a West Virginia wife sought personal jurisdiction over her husband who had relocated to Georgia, the Court held that failure to provide support to one's children constitutes a tortious act under our long-arm statute, W. Va. Code ' 56-3-33, such that personal jurisdiction may be obtained over the obligor/tortfeasor, provided that the other statutory requirements have been met.

Ronald L. Wyatt, Sr. v. Kimberly Ann Wyatt, No. 19787 (July 16, 1991)(Miller, C.J.): 185 W. Va. 472, 408 S.E.2d 51:

Where property settlement agreement waived child support during period of father's education, the Court set aside the agreement, and ordered the repayment of AFDC benefits paid during the period, holding that the duty of a parent to support a child cannot be waived or contracted away, and W. Va. Code ' 48A-2-8(a) (1) does not abrogate this duty, but provides that the parties must still enter into "an agreement which provides for the custody and support of the child or children . . . ."

Vallie Rich v. Donald K. Rich and Tammy J. Rich, No. 19675 (May 24, 1991)(Workman, J.): 185 W. Va. 148, 405 S.E.2d 858:

Where father conveyed certain real estate to his second wife two weeks after entry of an order finding him to be in arrears on his child support payments, the Court held that an interspousal transfer of property in close proximity to the occurrence of a substantial child support obligation may constitute evidence of fraudulent intent under the Uniform Fraudulent Transfers Act, W. Va. Code ' 40-1A-1 to -12, and may result in the transfer being set aside.

Janice M. Kinder v. Honorable E. Lee Schlaegel, Jr., Judge of the Circuit Court of Boone County, and Carlos M. Kinder, No. 20029 (April 25, 1991)(Brotherton, J.): 185 W. Va. 56, 404 S.E.2d 545:

Josephine J. Holst v. Honorable A. Andrew MacQueen, No. 19911 (March 15, 1991)(Neely, J.): 184 W. Va. 620, 403 S.E.2d 22:

Ira Gangopadhyay v. Nirmal K. Gangopadhyay, No. 19608 (February 13, 1991) (Miller, C.J.): 184 W. Va. 695, 403 S.E.2d 712:

Nancy Darlene M. v. James Lee M., No. 19513 (December 18, 1990)(McHugh, J.): 184 W. Va. 447, 400 S.E.2d 882:

David L. Wyant v. Betsy G. Wyant, No. 19263 (December 17, 1990)(Brotherton, J.): 184 W. Va. 434, 400 S.E.2d 869:

Doyle Jones v. Jacqueline Jones and Robey J. Knight, Committee for Jacqueline Jones, incompetent, No. 19266 (December 14, 1990) (Miller, J.): 184 W. Va. 297, 400 S.E.2d 305:

Luis E. Soriano v. Mayra M. Soriano, No. 19407 (December 12, 1990)(McHugh, J.): 184 W. Va. 302, 400 S.E.2d 546:

Donna Jo Scott, individually, and as next friend for Donald Benjamin Waoner and Luke Harmon Wagoner v. William L. Wagoner, Executor of the Estate of Timothy Allan Wagoner; Lou Ann Wagoner, and Lloyd Winters, No. 19527 (December 12, 1990) (McHugh, J.): 184 W. Va. 312, 400 S.E.2d 556:

Where mother sought continued child support from father's estate after he was killed by his second wife's lover, the Court overruled Robinson v. Robinson, 131 W. Va. 160, 50 S.E.2d 455 (1948), holding that if compelling considerations are present, a court has the authority, under W. Va. Code ' 48-2-15(e), to enforce a child support obligation as a lien against the deceased obligor's estate.

Louise Maloy Hamstead v. Richard Elbert Hamstead, No. 19529 (December 7, 1990) (Brotherton, J.): 184 W. Va. 272, 400 S.E.2d 280:

Antonia Jeane Gardner v. Wayne B. Gardner, No. 19616 (December 6, 1990)(Workman, J.): 184 W. Va. 260, 400 S.E.2d 268:

Colene C. McCormick v. Vondon Ray McCormick, Jr., et al., No. 19484 (November 29, 1990)(Neely, C.J.): 184 W. Va. 69, 399 S.E.2d 469:

Judith R. v. Honorable John Hey, Judge of the Circuit Court of Kanawha County, No. 19212 (July 26, 1990)(Workman, J.): 185 W. Va. 117, 405 S.E.2d 447:

Martha Louise Goode v. Carl Edward Goode, No. 19439 (July 20, 1990)(McHugh, J.): 183 W. Va. 468, 396 S.E.2d 430:

Robert Bettinger v. Marie Militzer Bettinger, No. 19382 (July 17, 1990)(Miller, J.): 183 W. Va. 528, 396 S.E.2d 709:

In a complex case raising an issue regarding the valuation of a professional corporation for purposes of equitable distribution, the Court held: (1) although family law masters have discretion in making value determinations, they are not free to reject competent expert testimony which was unrebutted, and (2) although a buy-sell agreement in a close corporation setting the stock value should not be considered binding for purposes of equitable distribution since such agreements may be manipulated by the shareholders to reflect an artificially low value, such valuation should be weighed along with other factors in making a determination as to the value of such stock. In reversing a reduction in the marital share of a professional corporation based upon the theoretical tax liability if the shareholder sold his interest, the Court held although the Internal Revenue Code specifically exempts from federal and state taxes the transfer of property between spouses which arise incident to a divorce, if it is ascertained that a future sale will actually occur as a result of an equitable distribution of marital property, the tax implications of such sale to a third party may be considered. In affirming its prior holding in Cross v. Cross, 178 W. Va. 563, 363 S.E.2d 449 (1987), the Court held that even where the existence of substantial nonliquid assets dictate installment payments for a spouse's share, interest should be paid at the going rate in the absence of some special hardship factor shown by the obligor. The Court further held that the valuation of a vested defined contribution plan for equitable distribution purposes is the present actual value of the contributions made and the accumulated earnings thereon, which is not to be discounted to present value. In clarifying the method of calculating child support pursuant to the child support guidelines, the Court directed compliance with a two-step process: first, "primary child support," covering the essential needs of the children, must be calculated, and second, a "standard of living adjustment," must be calculated, based upon defined percentages for the number of children. With respect to adherence to the child support guidelines in cases where the obligor has discretionary monthly income above $6,000 or both parents have combined discretionary monthly income above $8,000, the Court held that a decision not to follow such guidelines must be accompanied by an explanation of such decision. Finally, with respect to the payment of fees and costs, the Court held that W. Va. Code ' 48-2-13(a) (4) permits the award of attorney and expert witness fees during the course of litigation to spouses who are unable to pay such fees.

Harry J. Whiting v. Evelyn L. Whiting, No. 19049 (July 17, 1990)(Miller, J.): 183 W. Va. 451, 396 S.E.2d 413:

Thomas A. Loudermilk v. Carol Maxine Loudermilk, No. 19367 (July 12, 1990)(Neely, C.J.): 183 W. Va. 616, 397 S.E.2d 905:

Sara Escudero v. Honorable Patrick G. Henry, III, Judge of the Thirty-First Judicial Circuit, and Marc J. Sharp, No. 19637 (July 12, 1990)(Neely, C.J.): 183 W. Va. 370, 395 S.E.2d 793:

State of West Virginia ex rel. Division of Human Services by Mary C.M., Individually and as its Assignee v. Benjamin P.B., No. 19492 (June 28, 1990)(McHugh, J.): 183 W. Va. 220, 395 S.E.2d 220:

State of West Virginia ex rel. Department of Health and Human Resources, Child Advocate Office, Division of Income Maintenance, on Behalf of Emma Mae West v. West Virginia Public Employees Retirement System, a public corporation, No. 19606 (May 23, 1990)(Neely C.J.): 183 W. Va. 39, 393 S.E.2d 677:

In confirming the right of child advocate office to withhold public employees retirement benefits in order to satisfy a husband's spousal support obligation, the Court held the Legislature intended the withholding provisions of the Family Obligations Act of 1986, W. Va. Code ' 48A-1-3(19), to supersede the provisions of the Public Employees Retirement Act of 1961, W. Va. Code ' 5-10-46, which exempt pension benefits thereunder from legal process.

Jerri T. Warner v. Glenn Dice Warner, No. 19039 (May 19, 1990)(Workman, J.): 183 W. Va. 90, 394 S.E.2d 74:

In the Interest of: Brandon L.E., No. 19429 (April 18, 1990)(Workman, J.): 183 W. Va. 113, 394 S.E.2d 515:

Wanda Seay v. Honorable Rudolph J. Murensky, Judge of the Circuit Court of McDowell County, No. 19567 (April 12, 1990) (Neely, C.J.): 182 W. Va. 752, 391 S.E.2d 902:

Where a circuit judge refused to sign a divorce decree because the husband failed to appear at the final hearing before the family law master and because the decree contained a provision awarding a permanent protective injunction against the husband, the Court held that (1) when the parties, by verified complaint and answer, admit irreconcilable differences exist, a divorce may be granted without an appearance by the parties at any hearing, and (2) when the facts of a particular case justify the award of a permanent protective injunction under W. Va. Code ' 48-2-15(b) (8), even where no minor children are present, the circuit court shall not deny the protective injunction.

Calvin P. Fenton, et al. v. Taunja Willis Miller, No. 19174 (March 29, 1990)(Neely, C.J.): 182 W. Va. 731, 391 S.E.2d 744:

Robert C. Bridgeman, John B. Bridgeman, and David F. Bridgeman, Executors of the Estate of Robert Bridgeman, Deceased v. Barbara McKettrick Bridgeman, No. 19045 (March 22, 1990)(Neely, C.J.): 182 W. Va. 677, 391 S.E.2d 367:

Richie Calvin Tankersley v. Debra Rosemary Tankersley, No. 18687 (March 9, 1990)(Miller, J.): 182 W. Va. 627, 390 S.E.2d 826:

In a fight over equitable distribution of a funeral home operated as the husband's closely held corporation, the Court held that for purposes of equitable distribution under W. Va. Code ' 48-2-32(d) (1), marital property must be divided on the basis of its "net value," rather than its "market value." The Court defined "net value" of a closely held corporation as the net amount realized by the owner should the business be sold for its fair market value, or, in other words, taking into account the owner's continued liability for the debts of the business after its sale.

Tamara Leigh Nichols v. Carl Edwin Nichols, No. 18914 (March 9, 1990)(Brotherton, J.): 182 W. Va. 710, 391 S.E.2d 623:

Phyllis Jean Rogers v. Holroyd Elvin Rogers, No. 18824 (December 21, 1989)(Workman, J.): 182 W. Va. 388, 387 S.E.2d 855:

Michael K.T. v. Tina L.T., No. 18989 (December 21, 1989)(Workman, J.): 182 W. Va. 399, 387 S.E.2d 866:

Sherry Lou Clay v. Roger Dean Clay, No. 18988 (December 20, 1989)(Workman, J.): 182 W. Va. 414, 388 E.2d 288:

The Court reversed a judgment entered against a former wife, in the context of modification proceeding brought by her former husband, for damages to the marital home, which was eventually awarded to the husband, caused by the family's pet dog, who was permitted by the former wife to urinate and defecate with impunity throughout their humble abode, holding that a family law master is without jurisdiction to award monetary damages in a modification proceeding. On another issue, the Court held that because W. Va. Code ' 48-2-16(a) provides that child support is always subject to judicial modification, the parties to a divorce may not permanently fix the amount of child support by agreement.

Michele Andrea Shank v. Richard L. Shank, No. 18566 (December 8, 1989)(Brotherton, C.J.): 182 W. Va. 271, 387 S.E.2d 325:

Charlene Baldwin v. John Moses, Magistrate of Mingo County; Joey Kohari, Magistrate of Mingo County; Bill Webb, Magistrate of Mingo County; and Claude Snavely, Clerk of the Magistrate Court of Mingo County, No. CC992 (October 27, 1989)(Miller, J.): 182 W. Va. 120, 386 S.E.2d 487:

In a certified question proceeding exploring the jurisdiction of magistrates under the Prevention of Domestic Violence Ace, W. Va. Code ' 48-2A-1, et seq., the Court held that (1) once a final divorce decree is entered, a magistrate court may assert jurisdiction and issue a domestic violence protective order; (2) even though a former spouse no longer resides in the household, he or she remains subject to the Prevention of Domestic Violence Act; and, (3) a divorce decree containing language enjoining each party from molesting, annoying, or interfering with the other does not defeat a petition under the Prevention of Domestic Violence Act.

David M. v. Margaret M., No. 19020 (October 19, 1989)(Neely, J.): 182 W. Va. 57, 385 S.E.2d 912:

David Barr v. Willis "Tom" Gainer, No. 24815 (July 17, 1998)(McCuskey, J.): 203 W. Va. 379, 508 S.E.2d 96:

Affirming the lower court=s voiding of all votes case in the election for County Commissioner in a precinct in which a candidate=s sister served as a poll worker in violation of W. Va. Code ' 3-1-28(a)(5), the Court held, inter alia as follows: when the sibling of a candidate for public office serves as a poll worker in a precinct where the candidate=s name is on the ballot and there is evidence that the sibling=s presence at the polls prevented a free and full expression of the voters= will and affected the results of the election, all votes cast in that precinct for that office are rendered invalid and should be disallowed.

Robert L. Burkhart v. Honorable Virginia M. Sine, Circuit Clerk of Berkeley; Howard Strauss; D. Wayne Dunham, County Commissioner of Berkeley County; Robert S. Butler and John E. Wright, AND Robert L. Burkhart v. Honorable Virginia M. Sine, Circuit Clerk of Berkeley; Howard Strauss; D. Wayne Dunham, County Commissioner of Berkeley County; Robert S. Butler and John E. Wright, Nos. 23974 and 23975 (June 19, 1997)(Maynard, J.): 200 W. Va. 328, 489 S.E.2d 485:

Reversing denial of a writ of mandamus to declare the unsuccessful candidate for county commissioner in the general election ineligible and to compel certification of the unsuccessful candidate, the Court ruled that (1) where a candidate for county commission contests the qualifications of another candidate prior to the election in a mandamus proceeding, the litigation is not governed by the procedure provided in W. Va. Code, 3-7-6 and 3-7-7, and (2) pursuant to W. Va. Constitution, article 9, section 10, providing that no two county commissioners shall be elected from the same magisterial district, a person is Aelected@ from the magisterial district in which he or she resides on the date of the general election, which is determined by the magisterial district in which he or she residence on the date candidacy papers were filed. Consequently, the Court held that the circuit court erred in not holding the winner of the general election ineligible to hold office because he was elected from the same magisterial district in which a sitting commissioner resided at the time the candidacy papers were filed and in not certifying the other candidate as the winner of the general election.

In Re: The election contest between John C. Moore and Edward Powell for the Office of Weirton City Council, Ward Three, of the Municipal Corporation of Weirton, West Virginia, No. 23848 (June 19, 1997)(Maynard, J.): 200 W. Va. 335, 489 S.E.2d 492:

Reversing a judgment setting aside a prior decision declaring petitioner the victor in a city council election after a coin toss and instating petitioner=s opponent, the Court held that once the circuit court declared the election an tie to be broken by lot under W. Va. Code, 8-5-15, the election was decided by the coin toss, and the court had no authority to make the decision conditional on its ruling on a motion for reconsideration or to remove petitioner from office once he had taken the oath of office and remanded for entry of an order reinstating petitioner to office.

State of West Virginia ex rel. William Edward Sowards, II v. County Commission of Lincoln County; Paul D. Duncan, President, and Buster Stowers and Doug Waldron, members; and Kim Cecil, AND State of West Virginia ex rel. Lewis Walker, Jr. v. Paul Lambert, Clerk of the Circuit Court of McDowell County; and Pete J. Beavers, Nos. 23525 and 23541 (July 17, 1996) (Cleckley, J.): 196 W. Va. 739, 474 S.E.2d 919:

Refusing to remove two deputy sheriffs from the ballot despite their violation of W. Va. Code ' 7-14-15(a) which required their resignation before becoming candidates for elective office, the Court held (1) the fundamental right to seek elective office cannot be denied unless compelling state interests are served; (2) only where election mandamus relief is sought to preserve the right to vote or seek elective office will the ordinary requirements for the award of mandamus relief be relaxed, particularly with respect to the existence of an adequate, alternative remedy; (3) the legislature has broad authority to prescribe reasonable rules for the conduct of elections; (4) there is a legitimate state interest in preserving the integrity of both the electoral process and civil service system and the legislature may impose limits on political activity by public employees if the state=s interests outweigh the employees= first amendment rights; (5) the legislature may prohibit public employees from seeking elective office not only to avoid the potential of having an employee seeking his or her supervisor=s elective post, but also to prevent any pressure on laterals or subordinates to assist in the employee=s campaign; (6) although it is constitutionally permissible to suspend or discharge a deputy sheriff who seeks elective office, in order to achieve the goal of enfranchisement, judicial authority to remove a candidate from the ballot should be used sparingly; (7) political candidacy is a fundamental right that cannot be infringed upon where less restrictive alternatives are available; (8) only where the electoral process has been subverted by a candidate=s clear constitutional or statutory disqualification, or by bribery, fraud, intimidation, or other unlawful conduct, should a court invalidate the preference of the voters; and (9) the statutory prohibition against deputy sheriffs engaging in partisan political activity is insufficient to warrant setting aside the election of a deputy sheriff who violated such prohibition by failing to resign his or her position.

State of West Virginia ex rel. Brian Billings v. The City of Point Pleasant, a municipal corporation; Marilyn McDaniel, City Clerk; Russell Holland, Mayor of the City of Point Pleasant; and all Council Members of the City of Point Pleasant, No. 22837 (May 18, 1995)(Cleckley, J.): 194 W. Va. 301, 460 S.E.2d 436:

Upholding the constitutionality of a sixty day political party disaffiliation requirement, the Court held (1) the fundamental right to seek public office may not be restricted unless necessary to accomplish a legitimate and compelling governmental interest; (2) political party affiliation, involving speech and associational freedoms protected by the first amendment and W. Va. Const. art. III, '' 7 and 16, may not be restricted unless there is no less restrictive means of accomplishing a legitimate and compelling governmental interest; and (3) W. Va. Code ' 3-5-7(b)(6), which disqualifies a candidate who has changed political party affiliation within sixty days prior to filing, is the least restrictive means of accomplishing the legitimate and compelling governmental interest in preserving the integrity of the political process, promoting party stability, and avoiding voter confusion.

Write-In Pritt Campaign, in its capacity as a duly authorized political action committee, et al. v. Ken Hechler, in his capacity as Secretary of State of the State of West Virginia, No. 22394 (July 21, 1994)(Workman, J.): 191 W. Va. 677, 447 S.E.2d 612:

Rejecting an attempt by Charlotte Jean Pritt supporters to convert votes cast in a failed write-in gubernatorial campaign into a right to appear on the ballot as the Mountaineer Party, the Court held that a political action committee does not qualify as an "affiliation of voters representing any principle or organization" within the meaning of W. Va. Code ' 3-1-8.

Sandy Fisher v. City of Charleston, et al., No. 21356 (December 16, 1992)(Brotherton, J.): 188 W. Va. 518, 425 S.E.2d 194:

State of West Virginia ex rel. Samuel A. Cravotta, et al. v. Ken Hechler, as Secretary of State, and as a member of the State Election Commission, et al., No. 21308 (September 2, 1992)(Miller, J.): 187 W. Va. 790, 421 S.E.2d 698:

State of West Virginia ex rel. Terry Harden v. Ken Hechler, Secretary of State, et al., No. 21242 (July 20, 1992)(McHugh, C.J.): 187 W. Va. 670, 421 S.E.2d 53:

Sustaining a challenge to the state senate candidacy to an individual who would not have resided in West Virginia for 5 years preceding his election, but rejecting the second-place finisher's claim to his spot on the ballot, the Court held (1) the five-year durational residency requirement in W. Va. Const. art. IV ' 4, for state senators, is constitutional, and (2) when a vacancy occurs as the result of disqualification of a candidate not later than 84 days before the general election, the nominee may be appointed by the executive committee of the political party for the political subdivision in which the vacancy occurs no later than 78 days before the general election.

Greg D. Martin, Robert W. Burk, Jr., et al. v. Carole Jones, Circuit Clerk of Wood County; Lin Humphries, Circuit Clerk of Ohio County; and other Circuit Clerks; and Ken Hechler, in his official capacity as Secretary of State and Chief Elections officer of the State of West Virginia, No. 20868 (January 29, 1992)(Neely, J.): 186 W. Va. 684, 414 S.E.2d 445:

Where redistricting plan was not adopted until less than one year prior to general election, the Court held that where a candidate establishes his or her residence in a new district, part of which was his or her old district, the one-year durational residency requirement of W. Va. Const. art. VI, ' 12 does not apply as long the candidate establishes his or her residency in the new district on or before the day of the general election.

Richard L. "Dickie" Adkins v. Billy Joe Smith, No. 20074 (July 17, 1991)(Workman, J.): 185 W. Va. 481, 408 S.E.2d 60:

Sam MacCorkle v. Ken Hechler, Secretary of State, No. 19638 (June 8, 1990)(McHugh, J.): 183 W. Va. 105, 394 S.E.2d 89:

Overruling its decision in State ex rel. Hott v. Ewers, 106 W. Va. 18. 144 S.E. 578 (1928), the Court held that W. Va. Code ' 3-6-5, which authorizes write-in votes in general elections, applies with equal force to write-in votes in the election of members of political party executive committees, who are elected, rather than nominated, at primary elections.

Gene A. Haynes v. Ken Hechler, Secretary of State, Juanita Coe, Clerk of the Circuit Court of Wood County, Beryl A. Cunningham and R. Vance Golden, III, Ballot Commissioners of Wood County, Evelyn Waggoner, Clerk of the Circuit Court of Wirt County, Harvey J. McFee and Thelma Bibbee, Ballot Commissioners of Wirt County, No. 19548 (April 19, 1990)(McHugh, J.): 182 W. Va. 806, 392 S.E.2d 697:

Where envelope containing certificate of candidacy was stamped by a private postage meter with the last date for filing such certificate, but was not received by the Secretary of State for several days, the Court held that a private postage meter stamp is a presumptively valid and accurate postmark for purposes of W. Va. Code ' 3-5-7.

Mingo County Board of Education, Jada Hunter v. Frank Jones, No. 24968 (December 16, 1998)(Starcher, J.)(Workman, J., dissenting)(Maynard, J., disqualified)(Pancake, Judge, sitting by temporary assignment)(McCuskey, J., participating)(McGraw, J., not participating): ___ W. Va. ___, 512 S.E.2d 597:

The Court reversed and remanded with directions to enter an order directing the Mingo County Board of Education to place the Appellant, Jones, in the position of principal and to compensate him for any loss of wages or benefits he may have accrued, less any appropriate set-off. The Court held in syllabus point 2 that Awhen a school board posts a vacancy pursuant to W. Va. Code, 18A-4-7a [1993], and one or more qualified applicants apply for the position within the posting period, the school board must select a qualified applicant from those who applied during the posting period.@

Randall Conrad, James G. Cameron, Ben Kline, Charles E. Walker, Nelson W. Shaw, Joseph Farrie and all other present and former employees of defendant similarly situated v. Charles Town Races, Inc., a West Virginia corporation, No. 24739 (July 15, 1998)(Maynard, J.)(Davis, C. J., and McCuskey, J., deemed themselves disqualified) (Risovich, Judge, sitting by special assignment, dissenting): ___ W. Va. ___, ___ S.E.2d ___, [1998 WL 394638]:

Affirming the decision of the trial court with regard to the interaction between the Worker Adjustment and Retraining and Notification Act (WARNA), 29 U.S.C. '' 2101 - 2109 (1988), and the West Virginia Wage Payment and Collection Act (WPCA), W. Va. Code '' 21-5-1 to 21-5-18 (1975), the Court held as follows: Back pay damages paid pursuant to the WARNA do not constitute wages as defined by the WPCA, so that the time limitations governing the payment of wages in W. Va. Code ' 21-5-4(b), (c) and (d) do not apply to payments made pursuant to the WARNA.

Susan Willis, et al. v. Wal-Mart Stores, Inc., et al, No. 24152 (June 24, 1998)(Workman, J.): 202 W. Va. 413, 504 S.E.2d 648:

Answering questions certified from the U.S. District Court for the Southern District of West Virginia with respect to the W. Va. Human Rights Act, W. Va. Code ' 5-11-1, et seq., the Court held, inter alia, as follows: discrimination based upon same-gender sexual harassment is a recognized cause of action under the Act.

Betty A. Tiernan v. Charleston Area Medical Center, Inc., a West Virginia corporation, No. 24434 (May 21, 1998)(Davis, C. J.)(Workman, J., and Starcher, J., dissenting): 203 W. Va. 135, 506 S.E.2d 578:

Affirming in part, reversing in part and remanding a grant of summary judgment in an employee discharge case, the Court held, inter alia, as follows: [1] an at-will or otherwise employed private sector employee may sustain, on proper proof, a cause of action for wrongful discharge based upon a violation of public policy emanating from a specific provision of the state constitution. Determining whether a state constitutional provision may be applied to a private sector employer must be done on a case-by-case basis, i.e., through selective incorporation and application; [2] the Free Speech Clause of the state constitution is no applicable to a private sector employer. In the absence of a statute expressly imposing public policy emanating from the state constitutional Free Speech Clause upon private sector employers, an employee does not have a cause of action against a private sector employer who terminates the employee because of the exercise of the employee=s state constitutional right of free speech; and [3] in the context of tortious interference with a business relationship, one who intentionally causes a third person not to perform a contract or not to enter into a prospective business relation with another does not interfere improperly with the other=s business relation, by giving the third person (a) truthful information, or (b) honest advise within the scope of a request for the advice: adopting the Restatement (Second) of Torts ' 722 (1979).

Charles Travis v. Alcon Laboratories, Inc., No. 24207 (May 21, 1998)(Starcher, J.): 202 W. Va. 369, 504 S.E.2d 419:

Answering questions certified to it by the United States District Court for the Southern District of West Virginia, the Court stated, inter alia, as follows: [1] in order for a plaintiff to prevail on a claim for intentional or reckless infliction of emotional distress, four elements must be established. It must be shown: (a) that the defendant=s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency; (b) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct; (c) that the actions of the defendant cause the plaintiff to suffer emotional distress; and (d) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it; [2] in evaluating a defendant=s conduct in an intentional or reckless infliction of emotional distress claim, the role of the trial court is to first determine whether the defendant=s conduct may reasonably be regarded as so extreme and outrageous as to constitute the intentional or reckless infliction of emotional distress. Whether conduct may reasonably be considered outrageous is a legal question, and whether conduct is in fact outrageous is a question for jury determination; [3] whether the supervisor of an employer has, within the scope of employment, cause, contributed to, or acquiesced in the intentional or reckless infliction of emotional distress upon an employee, then such conduct is attributed to the employer and the employer is liable for the damages that result; [4] in claims for intentionally or recklessly inflicted emotional distress that arise from the termination of employment, the two year statue of limitation for personal injuries begins to run on the date of the last extreme and outrageous conduct or threat of extreme and outrageous conduct, which precipitated the termination of employment.

Jana Lynn Tudor v. Charleston Area Medical Center, Inc., a West Virginia corporation, and Janice Smith, No. 23948 (December 16, 1997)(Workman, C. J.)(Maynard, J., dissenting): 203 W. Va. 111, 506 S.E.2d 554:

Affirming the trial court rulings on questions of evidence, jury instructions, denial of motions for directed verdict but reversing as to a motion for remittitur in a constructive retaliatory discharge case, the Supreme Court held, inter alia, as follows: (1) C.S.R. ' 64-12-14.2.4 (1987) sets forth a specific statement of a substantial public policy which contemplates that a hospital unit will be properly staffed to accommodate the regulation=s directive; to ensure that patients are protected form inadequate staffing practices; and to assure that medical care is provided to hospital patients, especially children and young adolescents, who must depend upon others to protect their medical interests and needs. (2) In cases where the jury is presented with an intentional infliction of emotional distress (IIED) claim, without physical trauma or without concomitant medical or psychiatric proof of emotional or mental trauma, and damages awarded by the jury for IIED under these circumstances necessarily encompass punitive damages and, therefore, an additional award for punitive damages would constitute an impermissible double recovery. Where, however, the jury is presented with substantial and concrete evidence of a plaintiff=s serious physical, emotional or psychiatric injury arising out of the IIED, then any compensatory or special damages awarded would be in the nature of compensation to the injured plaintiff(s) for actual injury, rather than serving the function of punishing the defendant(s) and deterring such future conduct, a punitive damage award in such cases would not constitute an impermissible double recovery. To the extent this holding conflicts with our decision in Dzinglski v. Weirton Steel Corp., 191 W.Va. 278, 445 S.E.2d 219 (1994), it is hereby modified. (3) Where a jury verdict encompasses damages for IIED, absent physical trauma, as well as for punitive damages, it is incumbent upon the circuit court to review such jury verdicts closely and to determine whether all or a portion of the damages awarded by the jury for IIED are duplicative of punitive damages such that some or all of an additional award for punitive damages would constitute an impermissible double recovery. If the circuit court determines that an impermissible double recovery has been awarded, it shall be the court=s responsibility to correct the verdict. The Court directed that the punitive damage awards against both the appellants be remitted on the grounds that the punitive damages are duplicative of the jury=s award of damages for IIED.

Linda Sue Tolliver and Dana L. Tolliver v. The Kroger Company, a corporation conducting business in West Virginia, Terry Lucas, an individual, Philip Helms, an individual and Fred Fenton, an individual, No. 23940 (November 21, 1997)(Davis, J.): 201 W. Va. 509, 498 S.E.2d 702:

Affirming a grant of partial summary judgement in favor of The Kroger Company, Lucas, Helms and Fenton, the Court found (a) that the Tollivers= claim for intentional infliction of emotional distress had to be resolved through the grievance process established by the collective bargaining agreement and (b) that the Tollivers failed to properly plead a deliberate intention cause of action against the defendants, pursuant to W. Va. Code ' 23-4-2(c)(2)(i). The Court held that the emotional distress claim resulted from her job performance and her work relationship with her immediate supervisor; thus, resolution of that claim necessarily requires interpretation and application of the CBA. The Court also noted that failure on the part of a party to properly raise federal (LMR Act ' 301) preemption either before the circuit court or on appeal, constitutes a waiver of the preemption issue; however, if a party fails to raise Section 301 peremption at trial, but properly raises and briefs the issue on appeal, the waiver rule will not bar consideration of the issue on the merits. As to Mrs. Tolliver=s assault and battery claim, the Court held that assault and battery conduct is no a part of, nor a condition of employment. Hence, as a matter of public policy, the Court stated that a CBA may not bind employees to resolve assault or battery conduct by employers or their agents through grievance procedures. Finally, the Court reiterated that employer immunity from a tortious action for an injury to an employee may be overcome when an injured employee shows that the employer cause injury with deliberate intention, as defined in W.Va. Code ' 23-4-2(c)(2)(i).

David J. Hosaflook and Kathryn Hosaflook v. Consolidation Coal Company, Ronald Stovash and Thomas Simpson, No. 23045 (June 2, 1997)(McHugh, J.): 201 W. Va. 325, 497 S.E.2d 174:

Jacqueline Page v. Columbia Natural Resources, Inc., and R. Neal Pierce, No. 23469 (December 6, 1996)(Albright, J.): 198 W. Va. 738, 480 S.E.2d 174:

Affirming a $95,0000 judgment for the plaintiff in a Harless retaliatory discharge action arising from plaintiff=s testimony in another wrongful discharge action on behalf of the former employee, the Court ruled that (1) it is against the substantial public policy of West Virginia to discharge an at-will employee because such employee has given or may be called to give truthful testimony in a legal action; (2) once the plaintiff in a wrongful discharge action has established that discharge was motivated by an unlawful factor contravening a substantial public policy, the defendant will be liable unless it proves by a preponderance of the evidence that the same result would have occurred even in the absence of the unlawful motive; (3) plaintiff=s unsuccessful prosecution of an unemployment compensation claim did not bar her Harless action.

Joan S. Lipscomb v. Tucker County Commission, No. 23122 (July 11, 1996)(Albright, J.): 197 W. Va. 84, 475 S.E.2d 84:

Mark Williams v. Precision Coil, Inc., No. 22493 (March 24, 1995)(Cleckley, J.): 194 W. Va. 52, 459 S.E.2d 329:

Curniff Rowe, et al. v. Grapevine Corporation, et al., No. 22512 (February 16, 1995)(Neely, C.J.): 193 W. Va. 274, 456 S.E.2d 1:

Andrew P. Dzinglski v. Weirton Steel Corporation, No. 21888 (May 26, 1994)(Neely, J.): 191 W. Va. 278, 445 S.E.2d 219:

Gary Roberts and Jean Ann Roberts v. Leland Adkins and Leland Adkins, d/b/a L. Adkins Oil, No. 21805 (May 23, 1994)(Workman, J.): 191 W. Va. 215, 444 S.E.2d 725:

Reinstating a retaliatory discharge action brought by two employees allegedly terminated for purchasing a vehicle from their employer's competitor, the Court held that although W. Va. Code ' 21-5-5, which prohibits employers from forcing employees to purchase the employer's goods in lieu of payment of wages, does not support a claim for retaliatory discharge when an employee is terminated for patronizing the competitor of the employer engaged in the same business in which the employee is engaged, it does support a claim for retaliatory discharge when an employee is terminated for patronizing the competitor of the employer engaged in a different business than in which the employee is engaged.

Albert Coerte Voorhees v. Guyan Machinery Company, a West Virginia corporation, and Robert Shell, Jr., No. 21693 (March 24, 1994) (Neely, J.): 191 W. Va. 450, 446 S.E.2d 672:

Mack W. Bailey, et al. v. Sewell Coal Company, a West Virginia corporation, No. 21616 (November 2, 1993)(Neely, J.): 190 W. Va. 138, 437 S.E.2d 448:

Gilbert D. Ash, et al. v. Ravens Metal Products, Inc., a corporation, No. 21682 (October 15, 1993)(Miller, J.): 190 W. Va. 90, 437 S.E.2d 254:

Rejecting an employer's argument that striking employees' wage payment and collection claim for vacation benefits was barred by its collective bargaining agreement, the Court held that an arbitration clause of a collective bargaining agreement cannot nullify the statutory rights granted employees under the Wage Payment and Collection Act, W. Va. Code ' 21-5-1, et seq.

Charles Hogue v. Cecil I. Walker Machinery Company, No. 21406 (June 11, 1993)(Miller, J.): 189 W. Va. 348, 431 S.E.2d 687:

Beulah Sayres, Timothy Sayres, Jackie Rollyson, Cynthia Sayres, G. Michael Sayres, Donna Sayres, Charles Chesser, Gerald Lee Sayres, Mary Wamsley, and Jean Riffle v. Jerome Bauman, Robert Baum, William Randles, and Cablentertainment, No. 20864 (December 18, 1992)(Workman, J.): 188 W. Va. 550, 425 S.E.2d 226:

James H. Reed v. Sears, Roebuck & Company, Inc., Nos. 20924 and 20925 (December 18, 1992)(Workman, J.): 188 W. Va. 747, 426 S.E.2d 539:

Reversing a $375,000 verdict in favor of a repair technician who was discharged after he submitted a warranty claim on an air conditioner he was allegedly sold for parts, the Court held that (1) where a retaliatory discharge claim is based upon a warranty claim, the employee has no cause of action pursuant to the Consumer Credit and Protection Act, W. Va. Code '' 46A-6-101, et seq., unless the employee can demonstrate that a valid warranty was created at the time of the sale of the goods and (2) an express warrant is created, pursuant to W. Va. Code ' 46-2-313(1), only when the affirmation of fact, promise, or description of the goods is part of the basis of the bargain made by the seller to the buyer about the goods being sold.

Raoul Eddie Lilly v. Overnite Transportation Company, a Virginia corporation, doing business in the State of West Virginia, No. 21003 (December 17, 1992)(Workman, J.): 188 W. Va. 538, 425 S.E.2d 214:

Where trucker filed a retaliatory discharge action after he was allegedly terminated for refusing to operate a vehicle with unsafe brakes, the Court held that a cause of action for wrongful discharge may exist under W. Va. Code ' 17C-15-1(a), 17C-15-31, where an employee is discharged from employment in retaliation for refusing to operate a motor vehicle with brakes which would create a substantial danger to the safety of the general public.

Deborah Birthisel v. Tri-Cities Health Services Corp., a West Virginia corporation, dba HCA River Park Hospital, No. 21113 (November 25, 1992)(Miller, J.): 188 W. Va. 371, 424 S.E.2d 606:

Anthony Wilson v. Long John Silver's, Inc., No. 20889 (October 23, 1992)(Brotherton, J.): 188 W. Va. 254, 423 S.E.2d 863:

John Pannell v. Inco Alloys International, Inc., No. 20888 (October 13, 1992)(McHugh, C.J.): 188 W. Va. 76, 422 S.E.2d 643:

Reversing summary judgment in a workers' compensation discrimination case, where the Court found the existence of a genuine of material fact regarding whether the reasons given for the employee's discharge were pretextual, the Court held that 1990 amendments to W. Va. Code ' 23-5A-3, which strengthened protections for injured workers receiving compensation benefits, are to be applied prospectively.

Robert L. Mace v. Charleston Area Medical Center Foundation, Inc., a West Virginia corporation, No. 20123 (July 15, 1992)(Brotherton, J.): 188 W. Va. 57, 422 S.E.2d 624:

Sara W. Slack v. Kanawha County Housing and Redevelopment Authority, a Corporation, et al., No. 20725 (July 9, 1992) (Miller, J.): 188 W. Va. 144, 423 S.E.2d 547:

Lowell R. Adkins, et al. v. INCO Alloys International, Inc., a Delaware Corporation, et al., No. 20218 (April 22, 1992)(Miller, J.): 187 W. Va. 219, 417 S.E.2d 910:

David L. Williamson v. Sharvest Management Company, a corporation, dba Rock Creek Carry-Out, No. 20276 (February 28, 1992)(McHugh, J.): 187 W. Va. 30, 415 S.E.2d 271:

Saeed Mahmoodian, M.D. v. United Hospital Center, Inc. and Bruce C. Carter; and Ali Rahimian, M.D., and Florencia C. Lopez, M.D., No. 19504 (April 25, 1991)(McHugh, J.): 185 W. Va. 59l, 404 S.E.2d 750:

Erin Suter v. Harsco Corporation, No. 19424 (March 28, 1991)(Neely, J.): 184 W. Va. 734, 403 S.E.2d 751:

Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (December 6, 1990)(Miller, J.): 184 W. Va. 237, 400 S.E.2d 245:

William E. Cutright v. Metropolitan Life Insurance Company, et al., AND William E. Cutright v. Metropolitan Life Insurance Company, et al., Nos. 23884 and 23956 (July 11, 1997)(Maynard, J.): 201 W. Va. 50, 491 S.E.2d 308:

Affirming, in part, and reversing, in part, summary judgment in a wrongful discharge action brought by an insurance agent against his former employer, the Court held that the issue of whether plaintiff=s discharge for sexual discrimination violated state law was preempted by Title VII of the Civil Rights Act of 1964.

Sharon Williamson v. Warren Greene, et al., No. 23742 (June 2, 1997)(McHugh, J.): 200 W. Va. 421, 490 S.E.2d 23:

Answering questions certified by the Circuit Court of Jefferson County in sexual harassment and gender discrimination litigation under the West Virginia Human Rights Act, W. Va. Code, 5-11-1 et seq., the Court ruled that (1) under W. Va. Code 5-11-3(d), an Aemployer@ is Aany person employing twelve or more persons within the state@ at the time that the acts giving rise to the alleged discriminatory practice were committed; and (2) sexual harassment and gender discrimination in employment are contrary to the public policy of this State, so that even though a discharged at-will employee has no statutory claim for retaliatory discharge under the Human Rights Act because his or her employer did not employ the required number of employees at the time the acts giving rise to the alleged discriminatory conduct occurred, such employee may nevertheless maintain a common-law action for retaliatory discharge on such grounds under Harless v. First National Bank of Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1978).

David J. Hosaflook and Kathryn Hosaflook v. The Consolidation Coal Company, Ronald Stovash and Thomas Simpson, No. 23045 (June 2, 1997)(McHugh, J.): 201 W. Va. 325, 497 S.E.2d 174:

Affirming summary judgment against an employee who filed suit for handicap discrimination after he was laid off as part of a company reduction-in-force while on disability leave for retinitis pigmentosa, the Court, on rehearing, held that (1) disability leave is not a Ajob@ within the meaning of 77 W. Va. C.S.R. '1-4.2 and (2) the receipt of disability benefits does not constitute the Aperformance of services@ under W. Va. Code, 5-11-9(1) so as to render the employee a Aqualified handicapped person@ entitled to maintain an action under the West Virginia Human Rights Act for handicap discrimination.

Belinda Conrad v. ARA Szabo, the West Virginia Regional Jail and Correctional Facility Authority and Edward Rudloff, No. 23304 (December 5, 1996)(Cleckley, J.): 198 W. Va. 362, 480 S.E.2d 801:

Affirming, in part, and reversing, in part the dismissal of the Jail Authority and an individual correctional officer and summary judgment for plaintiff=s employer, a food services contractor, in an action for hostile environment sexual harassment, retaliatory discharge and breach of contract arising from termination of plaintiff=s employment as a cook supervisor at the Eastern Regional Jail, the Court ruled (1) the evidence established a prima facie case of hostile environment sexual harassment against plaintiff=s employer, precluding summary judgment; (2) there was sufficient evidence that plaintiff=s employer knew of her complaints about sexual harassment and that they were connected to her discharge to warrant submission to the jury of her claim for retaliatory discharge against the employer; (3) the correctional officer was not an Aemployer@ under W. Va. Code, 5-11-9(3), so as to be liable to plaintiff for sexual discrimination, but was subject to liability for unlawful retaliation pursuant to W. Va. Code, 5-11-9(7) to the extent that he aided and abetted plaintiff=s employer in sexual discrimination; and (4) the Jail Authority, though not plaintiff=s employer, was liable for sexual discrimination and retaliatory discharge to the extent that it knew of the sexual harassment she suffered and that the correctional officer acted as its agent in unlawfully recommending termination of her employment.

Phyllis Barlow v. Hester Industries, Inc., et al., No. 23305 (November 15, 1996)(Cleckley, J.): 198 W. Va. 118, 479 S.E.2d 628 :

Affirming a judgment for the defendant employer in an action for age and sex discrimination under the West Virginia Human Rights Act and for retaliatory discharge, the Court held (1) the circuit court did not abuse its discretion in not bifurcating for trial under R.Civ.P. 42 plaintiff=s discrimination and retaliatory discharge claims from defendants= counterclaim for breach of contract; (2) the court did not abuse its discretion in excluding evidence of the individual defendants= drinking habits and sexual or romantic relationships with employees; (3) the court did not err in admitting evidence of misconduct by plaintiff not discovered by defendants until after plaintiff was fired where the evidence was admitted for the limited purpose of determining the remedies available to plaintiff and not to show that defendant would have had a justified reason to discharge plaintiff separate and apart from the alleged discriminatory firing; and (4) the jury instructions covering Aat-will@ employment, burden of proof, defendant=s reasons for dismissal, and pretext were either proper or any error therein was waived by plaintiff=s failure to object at trial.

Alfred M. Skaggs v. Elk Run Coal Company, Inc., a West Virginia corporation, No. 23178 (July 11, 1996)(Cleckley, J.): 198 W. Va. 51 479 S.E.2d 561:

Reversing the denial of a new trial in an action instituted after the plaintiff was terminated for unsatisfactory work performance, but where plaintiff complained that the employer failed to reasonably accommodate his physical disabilities, the Court held (1) Areasonable accommodation@ under the Human Rights Act means reasonable modifications or adjustments that are designed, under the circumstances presented, to enable an individual with a disability to be hired or remain in his or her current position despite such disability; (2) an employer is not required to make the precise accommodation requested by a disabled applicant or employee as long as a reasonable alternative is offered that would permit the applicant or employee to perform the essential functions of the position; (3) in order to establish a prima facie case of handicap discrimination under the Human Rights Act, the plaintiff must show that (i) he or she is a qualified person with a disability, (ii) the employer was aware of his or her disability, (iii) an accommodation was necessary in order for the plaintiff to perform the essential functions of the position involved, (iv) a reasonable accommodation existed that would have permitted the plaintiff to perform the essential functions of the position involved, (v) the employer knew or should have known of the plaintiff=s need for accommodation and of the existence of such accommodation, and (vi) the employer refused or failed to provide the reasonable accommodation; (4) an employer may defend a handicap discrimination claim by disputing any of the essential elements of the plaintiff=s case or by demonstrating that the accommodation at issue would impose an Aundue hardship;@ (5) because Aundue hardship@ is an affirmative defense, the employer bears the burden of persuasion; (6) even if an employee cannot be accommodated to his or her current position, the employer must inform the employee of potential employment opportunities within the company and, if requested, consider transferring the employee to the open position, overruling Coffman v. West Virginia Board of Regents, 182 W. Va. 73, 386 S.E.2d 1 (1988); (7) in a disparate treatment case, rejecting as pretextual an employer=s assertion of a legitimate, nondiscriminatory reason for its action, together with the plaintiff=s satisfactory proof of a prima facie case by a preponderance of the evidence, is sufficient to support a factual finding of unlawful discrimination; (8) in a disparate treatment case, unlawful discrimination is proven if the plaintiff establishes, by a preponderance of the evidence, that forbidden intent was a Amotivating factor@ in an adverse employment decision, and liability will be imposed unless the employer can demonstrate, by a preponderance of the evidence, that the same action would have been taken in the absence of unlawful motive; (9) in a disparate treatment case, a plaintiff can raise a triable issue of discriminatory animus through either direct or circumstantial evidence; and (10) instructions in an employment discrimination case should inform the jury that (i) the plaintiff bears the burden of proving by a preponderance of the evidence that legally-prohibited bias was a motivating factor in the adverse employment decision, (ii) if the plaintiff carries this burden, the jury should find for the plaintiff unless the defendant can prove by a preponderance of the evidence that it would have made the employment decision even in the absence of the impermissible motive, and (iii) in determining both causation and intent, the jury should take into account any inferences raised by the plaintiff=s membership in a protected class, the plaintiff=s qualifications, the defendant=s alleged nondiscriminatory reason for its action, and all other relevant evidence bearing on the issues presented.

Sarah Martin v. Randolph County Board of Education, No. 22680 (November 17, 1995) (Cleckley, J.): 195 W. Va. 297, 465 S.E.2d 399:

Where central office employee complained that her demotion pursuant to a reduction-in-force was motivated by gender, the Court reversed for further development, holding that (1) unlawful discrimination in the form of compensation disparity based on race, gender, or other protected characteristic, is a Acontinuing violation@ that tolls the running of any period of limitations until such compensation disparity no longer occurred; (2) a plaintiff can establish a prima facie case of compensation discrimination if he or she proves that (i) he or she is a member of a protected class and (ii) that he or she receives lower compensation than a coworker who is not a member of a protected class and who is similarly situated to the plaintiff in terms of experience and job duties; (3) an employer may rebut a prima facie case of compensation discrimination by showing a legitimate, nondiscriminatory reason for the disparity; (4) although an unreasonable justification for compensation disparity may tend to show that such justification is pretextual, arbitrary differences are not actionable unless based upon an unlawfully discriminatory motivation; (5) W. Va. Code ' 18-29-2 allows an education employee to contest misclassification, but any monetary relief may extend retroactively only to the fifteen days preceding the grievance; and (6) although due deference is given to agency decisions within the scope of its jurisdiction, such deference does not extend to ad hoc representations, such as litigation arguments.

Irene Hanlon v. Terry Chambers, individually, and dba Chambers Chiropractic Offices, C.C., No. 22595 (October 26, 1995)(Cleckley, J.): 195 W. Va. 99, 464 S.E.2d 741:

Reversing an award of summary judgment in a sexual harassment case brought by a female supervisory employee arising from complaints of harassment by a male subordinate, the Court held (1) once a prima facie case of employment discrimination has been established, evidence of nondiscriminatory motivation will not be enough to warrant summary judgment unless no rational trier of fact could reject the purported reason for the employer=s action; (2) in order to determine whether a prima facie case of employment discrimination has been established for purposes of summary judgment, the appropriate test is whether a rational trier of fact could infer discriminatory motive, not whether the trial court would infer discriminatory motive where it the trier of fact; (3) to establish a claim for sexual harassment under W. Va. Code ' 5-11-1, et seq., based upon a hostile or abusive work environment, the employee must establish (i) unwelcome conduct, (ii) of a sexual nature, (iii) sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment, and (iv) imputable on some factual basis to the employer; (4) a supervisor is nevertheless an Aemployee@ under W. Va. Code ' 5-11-3(e) if he or she is not a partner, owner, or part-owner; (5) an employee may state a claim for hostile work environment based upon sexual harassment if unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature has the purpose or effect of unreasonably interfering with an individual=s job performance or creates an intimidating, hostile, or offensive work environment; (6) a supervisor may have a cause of action for hostile work environment based upon the conduct of subordinates if the employer knew or should have known about the offending conduct, but failed to take prompt and effective corrective measures; and (7) W. Va. Code ' 5-11-9(7)(C) prohibits an employer from retaliating against any individual for expressing opposition to a practice that he or she reasonably believes violates the provisions of the Human Rights Act.

Melvin Holstein v. Norandex, Inc., and Michael Counts, No. 22518 (July 17, 1995)(Fox, J.): 194 W. Va. 727, 461 S.E.2d 473:

Mary Jane Barefoot, Administratrix of the Estate of Grace Lambert v. Sundale Nursing Home, Jerry Bair, and Nancy Edgell, No. 22165 (April 13, 1995)(Cleckley, J.)(on rehearing): 193 W. Va. 475, 457 S.E.2d 152:

Barbara L. Vest v. Board of Education of the County of Nicholas, No. 22547 (February 17, 1995)(Cleckley, J.): 193 W. Va. 222, 455 S.E.2d 781:

In a certified question proceeding involving the authority of the education and state employees grievance board to hear discrimination claims and the preclusive effect of any board decision on such claims, the Court held that (1) although the grievance board does not have authority to determine liability under the Human Rights Act, it has authority to grant relief to employees for "discrimination," "favoritism," and "harassment," as those terms are defined in W. Va. Code ' 18-29-2, in a manner consistent with the provisions of the Human Rights Act; (2) except where provided by statute, administrative adjudication does not have preclusive effect unless the decision was rendered pursuant to specific statutory authority, the agency's procedures were substantially similar to court procedures, and the issues litigated were identical; and (3) a civil action filed pursuant to the Human Rights Act is not precluded by a prior decision of the education and state employees grievance board arising from the same facts and circumstances.

Lylloth G. Woodall v. International Brotherhood of Electrical Workers, Local 596, No. 22186 (December 16, 1994)(McHugh, J.): 192 W. Va. 673, 453 S.E.2d 656:

Affirming a JNOV in an age and gender discrimination suit instituted against a labor union with fewer than twelve office workers, the Court held (1) a labor organization, in its capacity as an employer, is not liable for otherwise unlawful discrimination, if it does not meet the definition of "employer" in W. Va. Code ' 5-11-3(d) and (2) officers and directors of a labor organization are not "employees" for jurisdictional purposes under W. Va. Code ' 5-11-3(e) unless they have additional duties that qualify them as employees outside of their duties as officers and directors.

Phyllis Gibson, Barbara Ellis Vance, Marjorie Elliott, Theresa Chinn, and Ruth Waters v. West Virginia Department of Health and Human Resources, Division of Health, No. 21919 (December 8, 1994)(Workman, J.): 192 W. Va. 372, 452 S.E.2d 463:

Charles P. Wilfong v. Chenoweth Ford, Inc., No. 22362 (November 18, 1994)(Workman, J.): 192 W. Va. 207, 451 S.E.2d 773:

West Virginia University/West Virginia Board of Regents v. Robert L. Decker and the Human Rights Commission, No. 22100 (July 8, 1994)(Neely, J.): 191 W. Va. 567, 447 S.E.2d 259:

Reversing an award in an age discrimination case involving a college professor, the Court held (1) "disparate impact" causes of action may exist under W. Va. Code '' 5-11-1, et seq., in age discrimination cases; (2) in proving a prima facie case of "disparate impact" under the human rights act, the complainant demonstrate that the employer has a particular employment practice or policy and that such practice or policy has a disparate impact on a protected class; (3) once a complainant establishes a prima facie case, the burden then shifts to the employer to demonstrate that the practice or policy is "job-related" or "consistent with business necessity;" (4) once the employer demonstrates "job-relatedness" or "business necessity," the complainant must demonstrate that neutral alternatives exist which the employer refuses to adopt or, in other words, that the practice or policy is a "pretext" for discrimination; and (5) a university does not engage in age discrimination when it compensates new faculty, regardless of age, based upon fair market value generally prevailing for entry-level faculty in their specific disciplines.

Belinda S. Myers and Sandra F. Tennant v. Morgantown Health Care Corp., a West Virginia corporation, No. 21360 (July 15, 1993) (Neely, J.): 189 W. Va. 647, 434 S.E.2d 7:

Lila Pearl Jones v. Glenville State College, No. 21416 (June 11, 1993)(Workman, C.J.): 189 W. Va. 546, 433 S.E.2d 49:

Morris Memorial Convalescent Nursing Home, Inc. v. Human Rights Commission and Viola Mayes, No. 21456 (May 21, 1993) (McHugh, J.): 189 W. Va. 314, 431 S.E.2d 353:

Marilyn Rae Harmon v. James Higgins, dba Capital City Beauty College, aka Weirton Beauty College, No. 20478 (December 16, 1992) (Brotherton, J.): 188 W. Va. 709, 426 S.E.2d 344:

Betty L. McCourt and Bernard L. McCourt v. Oneida Coal Company, Inc., a West Virginia corporation, No. 20992 (December 16, 1992)(Brotherton, J.): 188 W. Va. 647, 425 S.E.2d 602:

Dallas Stevenson Dobson v. Eastern Associated Coal Corporation, a corporation, West Virginia division, No. 20482 (July 23, 1992) (McHugh, C.J.): 188 W. Va. 17, 422 S.E.2d 494:

West Virginia Human Rights Commission v. Charles Moore, Executive Officer, National Bank of Commerce, No. 20199 (November 21, 1991)(McHugh, J.): 186 W. Va. 183, 411 S.E.2d 702:

Franklin Clay Coffman v. U.S. Steel Mining Company, Inc., and the Coal Mine Safety Board of Appeals, No. 19512 (July 9, 1991) (Workman, J.): 185 W. Va. 388, 407 S.E.2d 392:

Where a mine foreman verbally abused a miner who complained about an alleged safety violation, the Court held that aggravated verbal abuse in response to an employee's initiation of a safety grievance, which could discourage other miners from filing safety grievances, constitutes discrimination within the meaning of W. Va. Code ' 22A-1A-20.

FMC Corporation v. West Virginia Human Rights Commission and Teresa A. Frymier, No. 19555 (March 15, 1991)(Neely, J): 184 W. Va. 712, 403 S.E.2d 729:

Timothy Powell v. Wyoming Cablevision, Inc., No. 19491 (February 13, 1991)(Miller, C.J.): 184 W. Va. 695, 403 S.E.2d 717:

Affirming a retaliatory discharge award of $12,900 to a worker who was terminated upon his attempted return from an injury for which he received worker's compensation benefits, the Court held that, in order to establish a prima facie case of discrimination under W. Va. Code ' 23-5A-1, an employee must demonstrate that (1) a work-related injury was sustained; (2) workers' compensation proceedings were instituted; and (3) the filing of a workers' compensation claim was a "significant factor" in the employer's decision to discharge or otherwise discriminate against the employee. As with other employment discrimination actions, the Court further held that once a prima facie case is established, the burden then shifts to the employer to prove a legitimate, nondiscriminatory reason for the discharge, with an opportunity for the employee, in rebuttal, to offer evidence that the employer's proffered reason for the discharge is merely a pretext for the discriminatory act.

Harvey O'Dell v. Jennmar Corporation of West Virginia, Inc., No. 19426 (December 13, 1990)(Workman, J.): 814 W. Va. 280, 400 S.E.2d 288:

Affirming an award of summary judgment to an employer who unsuccessfully attempted to accommodate an employee's alleged physical impairment, the Court rejected the employee's argument that the issuance of a 15 percent PPD award for his back injury was alone sufficient to support his contention that he was "handicapped" within the meaning of W. Va. Code ' 5-911-3(t) (1).

Patricia Ann Paxton v. Paul Crabtree, Administrative Director, West Virginia Supreme Court of Appeals, State of West Virginia, Velt King, Magistrate of Clay County, No. 19615 (December 6, 1990)(Miller, J.): 184 W. Va. 237, 400 S.E.2d 245:

Bobby J. Shell v. Metropolitan Life Insurance Company, Frank T. Senkoski, and John W. Thomas, No. 19427 (July 12, 1990) (Neely, C.J.): 183 W. Va. 407, 396 S.E.2d 174:

John T. Copley v. NCR Corporation, Maria McCarthy, Donald W. Hodgson and Victor Cononi, G.I. Williamson, George J. Carpini, C.J. Steinmetz, Paul W. Lappetito, Manuel Garcia, Elton White, W.F. Buster, D.J. Herman and C.E. Exley, Jr., No. 19204 (June 12, 1990)(Miller, J.): 183 W. Va. 152, 394 S.E.2d 751:

In reversing an order enforcing a mandatory arbitration provision of an employment contract, the Court held that an arbitration clause in an employment contract cannot defeat a discrimination action filed pursuant to W. Va. Code ' 5-11-13(b).

Benjamin R. v. Orkin Exterminating Company, No. 19277 (March 8, 1990)(McHugh, J.): 182 W. Va. 615, 390 S.E.2d 814:

Mary Beth Perilli v. The Board of Education of Monongalia County, No. 18913 (November 29, 1989)(Neely, J.): 182 W. Va. 261, 387 S.E.2d 315: