No. 26110 - Eva Diane Maikotter v. University of West Virginia Board of Trustees/West
Davis, J., concurring in part and dissenting in part:
This case presents rather straightforward issues of statutory construction. The
majority has correctly concluded that the interpretation WVU seeks to impose on the
meaning of a job opening, as is set forth in W. Va. Code § 18B-7-1(d), does not comport
with the manner in which the Legislature used the phrase. No qualifying language was
attached to the phrase, therefore, it would be an abuse of our authority to add qualifying
language. I therefore concur in the resolution of the substantive issue properly raised by the
parties in this case. However, I must depart from the majority opinion with respect to
footnote 6 of the opinion. In my judgment this footnote violates state and federal due process
guarantees. Therefore, I am compelled to dissent from its insertion in the opinion.
It has been repeatedly and unequivocally stated that '[t]he Supreme Court of
Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a
consideration of those matters passed upon by the court below[.]' Syl. pt. 6, in part, Parker
v. Knowlton Const. Co., Inc., 158 W. Va. 314, 210 S.E.2d 918 (1975). Syl. pt. 2, in part,
Trent v. Cook, 198 W. Va. 601, 482 S.E.2d 218 (1996). See Whitlow v. Bd. of Educ. of
Kanawha County, 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993) (facts underlying ... [an]
issue will not have been developed in such a way so that a disposition can be made on
appeal); In re Katie S., 198 W. Va. 79, 90, 479 S.E.2d 589, 600 (1996) (Because of the
lack of factual development below, we decline to address this ... issue); Syl. pt. 4, Wheeling
Downs Racing Ass'n v. West Virginia Sportservice, Inc., 157 W. Va. 93, 199 S.E.2d 308
(1973) (This Court will not consider questions, nonjurisdictional in their nature, which have
not been acted upon by the trial court.); Syl. pt. 2, Sands v. Security Trust Co., 143 W. Va.
522, 102 S.E.2d 733 (1958) (This Court will not pass on a nonjurisdictional question which
has not been decided by the trial court in the first instance.).
The text of W. Va. Code § 18-29-8 provides in relevant part: In the event an
employee or employer appeals an adverse level four decision to the circuit court or an
adverse circuit court decision to the supreme court, and the employee substantially prevails
upon such appeal, the employee or the organization representing the employee is entitled to
recover court costs and reasonable attorney fees, to be set by the court, from the employer.
Obviously, this statute contemplates the award of reasonable attorney fees to an employee
substantially prevailing on appeal.
In only two previous opinions has this Court has addressed W. Va. Code § 18-
29-8. Both prior opinions were per curiam opinions. In University of West Virginia Bd. of
Trustees on Behalf of West Virginia University v. Graf, ___ W. Va. ___, 516 S.E.2d
741(1998) and in Putnam County Bd. of Educ. v. Andrews, 198 W. Va. 403, 481 S.E.2d 498
(1996), we denied the appellant's specific request for attorney fees under the statute.
However, in both Graf and Andrews notice and an opportunity to be heard was afforded to
each defendant before this Court made any ruling relating to an award of attorney fees under
W. Va. Code § 18-29-8.
In the instant proceeding, the majority has forced the lower court to award
attorney fees. In the final analysis, Ms. Maikotter may very well be entitled to attorney fees
under the statute. However, the majority should not make such a determination without any
analysis, i.e., without affording both parties an opportunity to address the matter. The record
is void of any evidence which may or may not militate against such an attorney fee award.
Did Ms. Maikotter engage in sanctionable conduct below that would permit the circuit court
to deny attorney fees? The majority cannot answer that question. Nor can the majority
answer any of a myriad of defenses WVU may have had to an award of attorney fees,
because WVU was not afforded notice and an opportunity to address the issue.
Due process is not a new principle. Due process is an old and faithful doctrine
embedded in the constitution of this state. Additionally, its aged protection reaches back to
the ratification of the nation's constitution. See State ex rel. Zirkle v. Fox, 203 W. Va. 668,
510 S.E.2d 502, 506 (1998), (The most basic of the procedural safeguards guaranteed by
the due process provisions of our state and federal constitutions are notice and the
opportunity to be heard, which are essential to the jurisdiction of the court in any pending
proceeding.); State ex rel. United Mine Workers of America, Local Union 1938 v. Waters,
200 W. Va. 289, 297, 489 S.E.2d 266, 274 (1997) ([T]he petitioners were denied their
fundamental constitutional rights by the issuance of an ex parte preliminary injunction
against them without notice or an opportunity to be heard); Eastern Associated Coal Corp.
v. John Doe, 159 W. Va. 200, 207 n.2, 220 S.E.2d 672, 678 n.2 (1975) (Failure to give
notice and opportunity to defend may deprive court of jurisdiction.). Due process is one of
the cornerstone legal principles that separates Anglo-American jurisprudence from many
foreign third world legal systems that pay lip service to the idea of notice and an opportunity
to be heard. See Syl. pt. 2, Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937) (The
due process of law guaranteed by the State and Federal Constitutions, when applied to
procedure in the courts of the land, requires both notice and the right to be heard.).
Unfortunately, in this opinion the majority has chosen to disregard an aged and deeply rooted
principle in our legal system.
I fail to understand the urgency in denying WVU an opportunity to show why attorney fees may not be appropriate in this case. Ms. Maikotter's failure to raise the issue before this Court could have been fully argued and brief on remand before the circuit court.
Additionally, consistent with due process, WVU could have mounted any objection it had
to an award of attorney fees. However, with its decision, the majority has denied WVU this
basic right. The role and authority of this Court is not to take sides and favor one party over
the other. Our constitutional obligation is to decide issues properly raised, based upon the
merits of those issues properly presented to this Court.See footnote 2
The issue of attorney fees was not
raised in this appeal. Therefore, I believe that constitutional due process principles
prohibited this Court from ordering the trial court to grant attorney fees.
For the reasons stated, I concur in part and respectfully dissent in part.