David H. Sanders
Public Defender Corporation
Martinsburg, West Virginia
Counsel for Petitioner
Rita A. Stuart
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondents Skaff and Hun
Jack C. McClung
Charleston, West Virginia
Counsel for Amicus Curiae
This Opinion was delivered PER CURIAM.
"'Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.' Pt. 1, syllabus, State ex rel. Lilly v. Carter, 63 W. Va. 684 [60 S.E. 873 (1908)]." Syl. Pt. 1 , State ex rel. West Virginia Secondary School Activities Commission v. Oakley, 152 W. Va. 533, 164 S.E.2d 775 (1968).
On July 23, 1992, we issued a moulded writ of habeas
corpus in this case with regard to requiring the West Virginia
Board of Probation and Parole to hold parole eligibility hearings.
State ex rel. Smith v. Skaff, 187 W. Va. 651, 420 S.E.2d 922
(1992).See footnote 1 A further claim made by the relator, who was a prisoner
remanded to the custody of the Division of Corrections, was that he
be released from custody partly on the ground that he had been
illegally lodged in a regional jail.
In our previous opinion, we recognized that the relator's
confinement was illegal under our decision in State ex rel. Dodrill
v. Scott, 177 W. Va. 452, 352 S.E.2d 741 (1986).See footnote 2 We also
recognized, however, the problem of overcrowding in state penal
facilities, and the fact that the State is in the process of
building a new prison to relieve the problem. See Crain v.
Bordenkircher, 187 W. Va. 596, 420 S.E.2d 732 (1992); Crain v.
Bordenkircher, 180 W. Va. 246, 376 S.E.2d 140 (1988). Accordingly,
we withheld ruling on this aspect of the relator's petition and
ordered the Division of Corrections to develop within six months a
plan "to provide some temporary arrangement to meet its obligation
to house and detain all those lawfully sentenced to a state penal
facility until such time as the new prison is completed." 187 W.
Va. at ___, 420 S.E.2d at 926.
On December 28, 1992, the Division of Corrections filed
its plan with this Court. By order dated January 6, 1993, we
deferred action pending a review of the plan by Patrick D. McManus,
the Special Master appointed by this Court to oversee the
Division's efforts to bring the state penal system within
constitutional requirements. See Crain v. Bordenkircher, 176
W. Va. 338, 342 S.E.2d 422 (1986). On February 8, 1993, this Court
received a report from the Special Master generally approving the
The plan submitted by the Division of Corrections has
three components. First, a new 100-bed dormitory has been
constructed at the Huttonsville Correctional Center to house jail-confined offenders currently awaiting transfer to a state
correctional facility. Second, the Division of Corrections has
proposed the acquisition and renovation of the former Denmar
Hospital in Hillsboro in order to accommodate approximately 150
minimum and medium security inmates. Finally, the Division of
Corrections has proposed utilizing regional jails, a portion of
which is to be staffed by its employees, as a method of housing
another 150 inmates.
As previously noted, the Special Master's report on the
Division of Corrections' plan is generally favorable. First, he
notes that the new dormitory at Huttonsville has provided some
immediate relief. Second, he states that the Denmar proposal
appears to be a very cost-effective plan which could provide
significant short-term relief. Third, he views with approval the
Division's recognition that it should make a financial contribution
to the operation of the regional jail system to the extent that its
facilities are used to house state prisoners. Finally, the Special
Master urges that alternative sentencing be considered as an
additional tool for reducing jail overcrowding.
The Division of Corrections has complied with our
directive to develop a plan for the temporary housing of state
prisoners. We believe that its plan would improve what is
currently a dire situation. We recognize, as does the Division of
Corrections, that legislative funding is necessary to implement its
plan. We trust that the necessary funding of its proposals can be
secured and its plan expeditiously implemented.
We decline to intervene further in this matter as the
limited issue initially raised in this case has been met. We do
not find the petitioner has status to pursue this matter further as
his primary questions are now moot. As we stated in Syllabus Point
1 of State ex rel. West Virginia Secondary School Activities
Commission v. Oakley, 152 W. Va. 533, 164 S.E.2d 775 (1968):
"'Moot questions or abstract propositions, the decision of which would avail nothing in the determination of controverted rights of persons or of property, are not properly cognizable by a court.' Pt. 1, syllabus, State ex rel. Lilly v. Carter, 63 W. Va. 684 [60 S.E. 873 (1908)]."
See also State ex rel. Miller v. Locke, 162 W. Va. 946, 253 S.E.2d 540 (1979)
For the reasons stated above, we conclude that the issue
of the relator's unlawful confinement in the regional jail is now
moot, and to that extent this case is dismissed. The moulded writ
of habeas corpus heretofore issued by this Court as to the West
Virginia Board of Probation and Parole remains in effect as to all
other issues raised by the relator. The writ is denied.
Footnote: 1Syllabus Points 3, 4, and 5 of State ex rel. Smith v. Skaff, supra, state:
"3. The Parole Board has a
mandatory duty not only to consider an inmate
for parole once the inmate becomes eligible,
but also to conduct a parole hearing, if
necessary, at any facility where the inmate is
being lodged, be it a facility within the
Division of Corrections or a county or
"4. It is a violation of West
Virginia Code § 62-12-13 (1989) for the Parole
Board to refuse to consider an inmate for
parole until after his transfer into a
Division of Corrections facility when he is
otherwise eligible for such consideration.
"5. Until construction of the new
penitentiary is completed, the Parole Board
has the latitude to give parole consideration
to those inmates being detained in county or
regional jails who have been convicted of
nonviolent crimes upon review of their
records. When the Parole Board determines
that an inmate has sufficiently met the
requirements of West Virginia Code § 62-12-13
(1989), then it may grant parole without
actually holding a hearing at the facility
where the inmate is housed."
Footnote: 2 In Syllabus Point 1 of State ex rel. Smith v. Skaff, supra, we stated:
"The statutory scheme of this state places a
nondiscretionary duty upon the Division of
Corrections to incarcerate those inmates who are
sentenced to the penitentiary in a state penal
facility operated by the Division of Corrections.
Hence, the Division of Corrections is prohibited
from lodging inmates in a county or regional jail
facility absent the availability of space in these
facilities once the inmates have been sentenced to
a Division of Corrections facility."
See also State ex rel. Dodrill v. Scott, supra.