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No. 32751 - Jeremiah
Bart Morris v. Crown Equipment Corporation, a foreign
corporation; and Jefferds Corporation, dba Homestead Materials
Handling Company, a West Virginia corporation
Albright, J., concurring:
I concur with the reasoning and conclusions in this Court's majority opinion
in the instant case. I write separately to amplify several of the points made in that opinion.
The venue provisions of
, 56-1-1(c) that are at issue in the
instant case address the ability of a court that has jurisdiction over the person(s) and subject
matter of a case to nevertheless abstain from the exercise of that jurisdiction, on venue
grounds, when another court is available and more appropriate. The doctrine that permits
such an abstention _ which can apply in both intrastate and interstate contexts _ is known
as forum non conveniens. (See footnote 1)
In the interstate application of the forum non conveniens doctrine, the state
announcing such a policy disclaims any interest in providing a forum for litigation within the
scope of the policy, i. e., litigation between foreigners on causes of action predicated on the
laws of another state. Carrie and Schechter, Unconstitutional Discrimination in the
Conflict of Laws: Privileges and Immunities, 69 Yale Law Journal 1323, 1383 (1960).
A number of courts and commentators have discussed the effect of the
Privileges and Immunities Clause of the United States Constitution on the exercise of the
doctrine of forum non conveniens:
. . . [w]e perceive no reason why the doctrine
] should not be available in this State, upon a proper
showing and without discrimination against either noncitizens
or against FELA cases.
Price v. Atchison, T. & S. F. Ry. Co.
, 42 Cal.2d 577, 581, 583, 268 P.2d 457, 460 (1954)
. . . [t]he application of the doctrine [forum non conveniens
as to refuse jurisdiction in an action brought by a citizen of
another state will not violate Article 4 if jurisdiction would also
have been refused had the plaintiff been a citizen of the forum
Zurick v. Inman
221 Tenn. 393, 399, 426 S.W.2d 767, 770 (1968) (emphasis added).
. . . [M]any courts have followed the general rule that applying
the doctrine of forum non conveniens to refuse jurisdiction in an
action brought by a citizen of a foreign state does not violate the
Privileges and Immunities Clause if jurisdiction would be
refused in an action brought by a citizen of the forum state in the
same circumstances. A particular state may apply the doctrine of forum non conveniens
, as long as it is applied to citizens and
Owens Corning v. Carter
, 997 S.W.2d 560, 569 (Tex. 1999) (footnote omitted) (emphasis
However, the doctrine [of forum non conveniens
], as we
construe it, is non-discriminatory
and does not turn on
considerations of domestic residence or citizenship as against
foreign residence or citizenship. It turns, rather, on
considerations of convenience and justice and it may, therefore,
be applied for and against domestic residents and citizens as
well as for and against foreign residents and citizens.
Gore v. U. S. Steel Corp
., 15 N.J. 301, 311, 104 A.2d 670, 675-676 (1954) (emphasis added).
A state that restricts forum non conveniens to cases involving
plaintiffs from other states may run afoul of the Privileges and
Immunities Clause of the U.S. Constitution.
Note, Georgia On the Nonresident Plaintiff's Mind, 36 Ga. L. Rev. 1109, 1142 n.243,
(2002). (See footnote 2)
In Norfolk and Western Ry. Co. v. Tsapis
, 184 W.Va. 231, 234-235, 400 S.E.2d
239, 242-243 (1990), this Court stated:
A number of other courts have reached the same conclusion that
the common law doctrine of forum non conveniens can be
utilized to deny access to courts to nonresident plaintiffs in
FELA cases in appropriate circumstances without running afoul
of the Privileges and Immunities Clause.
* * *
. . . no one factor [is] necessarily dispositive in a forum non
analysis and . . . the doctrine [has] to be applied
flexibly on a case-by-case basis [citing Piper Aircraft v. Reyno
454 U.S. 235, 102, S.Ct. 252, 70 L. Ed. 2d 419 (1991).]
(Emphasis added.) (See footnote 3)
Based on the foregoing authority (and the authority cited in the majority
opinion), it appears that in applying a forum non conveniens
venue statute like W.Va. Code
56-1-1(c) , it is constitutionally permissible to take into account
the residency or
citizenship of the plaintiff, along with other appropriate factors. However, it is
constitutionally impermissible to treat nonresidency in or noncitizenship of West Virginia
as a categorical
ground requiring the courts of West Virginia to dismiss a case on the basis
of forum non conveniens
, without regard to other factors that may be relevant. And of
course, the forum non conveniens
principles simply do not apply where the defendant is a
West Virginia entity or the cause of action arose in West Virginia.
This Court's opinion in the instant case correctly concludes that our decision
in State ex rel. Riffle v. Ranson, 195 W.Va. 121, 464 S.E.2d 763 (1995) cannot and does not
diminish this Court's duty to assure that all venue-related statutory language is read and
applied in a constitutional fashion.
Notably, the Riffle opinion did not mention State ex rel. Kenamond v. Warmuth,
179 W.Va. 230, 232, 366 S.E.2d 738, 740 (1988), which states:
Procedural statutes relating to venue, like West Virginia Code
§ 56-1-1, are effective only as rules of court and are subject to
modification, suspension or annulment by rules of procedure
promulgated by this Court. W.Va. Const.
art. 8, § 3; W.Va. Code
§ 51-1-4 (1981 Replacement Vol.); W.Va. Code
§ 51-1-4a (1981
Replacement Vol.). Ultimately, civil venue questions are
governed by the procedural rules promulgated by this Court, the
procedural statutes that are not inconsistent with those
procedural rules, and the opinions issued by this Court
interpreting those procedural rules and statutes. [Footnote
omitted]. (See footnote 4)
Applying this settled principle, this Court recently held that statutory
provisions . . . [were] enacted in violation of the Separation of Powers Clause, Article V,
§ 1 of the West Virginia Constitution, insofar as they address procedural litigation matters
that are regulated exclusively by this Court pursuant to the Rule-Making Clause, Article VIII,
§ 3 of the West Virginia Constitution. Syllabus Point 3, in part, Louk v. Cormier
W.Va. 81, 622 S.E.2d 788 (2005).
In Louk, we stated:
This Court has made clear that [t]he legislative, executive, and
judicial powers . . . are each in its own sphere of duty,
independent of and exclusive of the other; so that, whenever a
subject is committed to the discretion of the [judicial],
legislative or executive department, the lawful exercise of that
discretion cannot be controlled by the [others]. Danielley v.
City of Princeton, 113 W.Va. 252, 255, 167 S.E. 620, 622
(1933). Promulgation of rules governing litigation in the courts
of this State rests exclusively with this Court.
218 W.Va. at ___,
622 S.E.2d at 800. (See footnote 5)
Therefore, it is clear that the Separation of Powers Clause, Art. V, Sec. 1 of the West Virginia Constitution
, authorizes the substantive review and limitation of statutes in the
areas of venue and forum non conveniens
by the supreme court of appeals insofar as the
statutes (1) address procedural litigation matters that are regulated exclusively by the
supreme court of appeals pursuant to the Rule-Making Clause, Article VIII, Sec. 3 of the
West Virginia Constitution; or (2) present other constitutional concerns.
Finally, it should be noted that the result in each of the cases relied upon by the
dissenting opinion in the instant case turns and relies on a purported distinction between non-
residents and non-citizens, in applying the Privileges and Immunities Clause. The dissent
replicates that distinction by finding that the application of W.Va. Code
, 56-1-1(c)  in
the instant case to dismiss Mr. Morris' case is constitutionally permissible, because this West
Virginia statute facially applies to both citizen and non-citizen nonresidents. (See footnote 6)
As this Court's opinion makes clear at note 2, the notion that there is a
substantial and dispositive constitutional distinction between discrimination on the basis of
residency and discrimination on the basis of citizenship has been set aside by a series of
decisions by the United States Supreme Court. Authority grounded in this obsolete
distinction is therefore fairly unpersuasive; and it seems that any discriminatory scheme,
whether against non-residents or non-citizens, is of constitutional dimension and must be
measured against a standard higher than a rational basis. A court's ability to take into
account the residency of a plaintiff in a true forum non conveniens situation, which I believe
is permissible, is more respecting of the constitutional values at stake than any categorical
Accordingly, I concur with this Court's opinion and judgment.
In their briefs, the parties to the instant case agree that W.Va. Code
, 56-1-1(c) 
addresses forum non conveniens
principles and procedures in an interstate context, just as
earlier parts of the statute address these principles and procedures in an intrastate context. See State ex rel. Riffle v. Ranson
, 195 W.Va. 121, 464 S.E.2d 763 (1995).
In Syllabus Point
1 of Cannelton Industries, Inc. v. Aetna Casualty & Surety Co.
194 W.Va. 203, 460 S.E. 2d 18
(1954) we stated:
The common law doctrine of forum non conveniens is simply that a
court may, in its sound discretion, decline to exercise jurisdiction to
promote the convenience of witnesses and the ends of justice, even
when jurisdiction and venue are authorized by the letter of a statute.
See also Adkins v. Underwood
520 F.2d 890 ( 7th
Cir. 1975) (Illinois Supreme Court
did not violate the privileges and immunities clause in view of apparent well-established
policy of Illinois courts of allowing nonresident access to Illinois courts and of evenhanded
application of forum non conveniens
Am.Jur.2d, Constitutional Law, Sec. 769  states:
Insofar as such is not prohibited by the Privileges and
Immunities Clause, the fact that the parties to an action are
noncitizens or nonresidents of the state may be taken into
by a court in determining whether to apply the
doctrine of forum non conveniens, and the application of such
doctrine so as to refuse to exercise jurisdiction in an action
brought by a citizen of an American sister state is not repugnant
to the Privileges and Immunities Clause if, under the particular
circumstances, the exercise of jurisdiction would have been
refused had the plaintiff been a citizen of the forum state . . .
The Supreme Court has permitted nonresidence to be taken into account
forum non conveniens dismissals[,] Michael Hoffheimer, Mississippi Conflicts of Law,67 Miss. L.J. 175, 321 (1997) (emphasis added).
See also Hinchman v. Gillette
217 W.Va. 378, 391, 618 S.E.2d 387, 400 (2005)
(Davis, J., concurring) (procedural statutes are effective only as rules of court and are subject
to modification, suspension, or annulment by rules of procedure promulgated by this Court).
Syllabus Point 1, Stern Bros., Inc. v. McClure
, 160 W.Va. 567, 236 S.E.2d
222 (1977) (Under Article VIII, Section 8 of the Constitution of West Virginia . . .
administrative rules promulgated by the Supreme Court of Appeals of West Virginia have
the force and effect of statutory law and operate to supersede any law that is in conflict with
them.); Williams v. Cummings
, 191 W.Va. 370, 372, 445 S.E.2d 757, 759 (1994) (This
statute . . . is in conflict with and superseded by T.C.R. XVII, which addresses the
disqualification and temporary assignment of judges, and thereby dispenses with [the statute]
. . .; Meadows on Behalf of Professional Employees of West Virginia Educ. Ass'n v. Hey
184 W.Va. 75, 79 n.4, 399 S.E.2d 657 n.4 (1990) (We note that the procedural statutes
relating to venue are effective only as rules of court and subject to modification, suspension,
or annulment by rules of procedure promulgated by the Supreme Court.) (citation omitted).
The thoughtful concurrence by Justice Benjamin also cites to State of Missouri ex rel.
Southern Ry. Co. v. Mayfield, 340 U.S. 1, 3-4, 71 S.Ct. 1, 95 L.Ed. 3 (1950), a case that turns
on a distinction between discrimination against citizens of other states and discrimination
against residents of other states.