No. 33205 - Adda Motto, Marie Carey, David Carey, Kristi Carey, and Sharon Runyon v.
CSX Transportation, Inc. and West Virginia Department of Environmental
Protection, Office of Mine Lands and Reclamation, a West Virginia
Albright, Justice, concurring, in part, and dissenting, in part:
This case comes to us in the form of two certified questions arising in a civil
action pending in the Circuit Court of Kanawha County.
In view of the decision of this Court to require the dismissal of the underlying
action for failure of the Petitioners below to comply fully with West Virginia Code §55-17-
3(a) (2002) (Supp. 2006), I concur in the further judgment of this Court permitting the
underlying suit to be refiled after the expiration of the statute of limitations under the
provisions of the savings statute, West Virginia Code §55-2-18 (2001) (Supp. 2006).
However, I vigorously dissent from the new point of law, stated in syllabus
point three of the majority opinion, holding that the pre-suit notice to state officials required
by West Virginia Code §55-17-3(a) is jurisdictional
As explained in the majority opinion, the constitutional principles I maintain
are pivotal to a decision in this case were not addressed because the parties did not raise a
constitutional challenge to the statute. While the general rule is that courts do not pass upon
the constitutionality of a statute in such instances, the long-recognized exception to that rule
is when a decision upon that very point is necessary to the determination of the case. Syl.
Pt. 1, Edgell v. Conaway
, 24 W. Va. 747 (1884). This Court explained in State v. Harrison
130 W. Va. 246, 43 S.E.2d 214 (1947),
that [t]his widely recognized principle is based
upon the attitude of deference of the judiciary for the legislative department of the
. at 249, 43 S.E.2d at 216. I can think of no more decisive reason to invoke
the exception than when the legislative enactment being considered oversteps
constitutionally defined bounds to the powers of the legislative branch.
The majority suggests that without a constitutional challenge by the parties,
the only alternative remedy is, in effect, judicial repeal of the notice statute through
recognition of discretion of the courts to waive the pre-suit notice provisions. While it is not
entirely clear, that conclusion appears to rest on the determination that the notice
requirements are jurisdictional in nature. I maintain that the better approach is to fashion a
remedy for the absence of timely pre-suit notice that, in comity, recognizes and
accommodates in most cases the desire of the Legislature to have notice of litigation given
to its officers and to other affected state agencies before the state's interests are adversely
affected by the litigation. In most instances, such an accommodation can be achieved by
simply staying further action in the case (including suspending response times) until notice
is given for the required period of time. However, in cases seeking to bar or postpone some
projected state action alleged to pose imminent or irreparable harm to the complaining
parties, there may be a legitimate need for swift, if temporary, immediate action without the
required notice to state officials. To hold, as the majority does, that the statute under
consideration constitutes a jurisdictional
bar to all relief until the required notices are given
and the stipulated times have elapsed is unwise and unnecessary.
A similar accommodation involving a pre-suit notice provision governing
medical malpractice actions was crafted by this Court in Hinchman v. Gillette
, 217 W. Va.
378, 618 S.E.2d 387 (2005). The resolution fashioned in Hinchman
reflected a wise balance
of the prerogatives of the legislative and judicial branches of government without either
declaring the notice provisions jurisdictional or refusing to accommodate the legislative will.
In so doing, the right to citizens' access to the courts was expressly preserved. Id
. Syl. Pt.
2, 217 W. Va. at 379, 618 S.E.2d at 388. The statutory pre-suit notice requirements
examined in Hinchman
were intended to resolve a legislatively defined problem of crisis
dimension involving medical malpractice lawsuits. The legislative design was intended to
curtail the number lawsuits considered frivolous in order to ease a perceived economic crisis
and to instill or renew public confidence in the skills and quality of medical services in the
state. I note first that the statute in Hinchman
dealt with suits grounded in the common law,
over which the Legislature retains constitutional powers to enact statutory amendment, not
extraordinary remedies. Moreover I note that in the statute under consideration here, the
Legislature was not dealing with a perceived economic or social crisis as in Hinchman,
with the convenience of the state government in responding to litigation initiated by citizens
seeking some kind of relief from the actions of that state government.
It is also worth noting a distinction between our Court system and that of the
federal government. Federal courts' jurisdiction, with only a few exceptions, is derived from
acts of Congress. The jurisdiction of our state courts comes from the state constitution
directly, without Legislative enactment except in those cases in which the Legislature
chooses to enlarge, rather than restrict, that jurisdiction. The wisdom of those who drafted
our state constitution in choosing to secure to our people the aid of the courts directly, rather
than by the grace of the Legislature, ought to be respected. The opinion of this Court from
which I here dissent fails to give full respect to that highly meaningful distinction.
The impact of the majority opinion is even more inappropriate in cases seeking
extraordinary remedies. The jurisdiction of this Court and of the circuit courts to entertain
suits seeking extraordinary remedies such as mandamus derives from Article VIII of the
Constitution of this State and is not subject to restriction by the Legislature
. While this
Court has permitted the Legislature to set certain pre-conditions to the filing of suits seeking
common-law damages for alleged malpractice by health care providers, treating the type of
pre-conditions presently at issue as jurisdictional
in cases seeking relief by way of one or
another extraordinary remedy has potential for mischief that need not be chanced.
The course chosen by the majority operates to close the courthouse doors to
citizens seeking prompt redress against the government despite the express constitutional
guarantee that [t]he courts of this State shall be open, and every person, for an injury done
to him, in his person, property or reputation, shall
have remedy by due course of law. . . .
W.Va. Const. art. III,§ 17 (emphasis supplied). I firmly believe that this Court, giving due
respect to our republican form of government, should never sanction a remedy that sets
government above the people rather than as servant of the people. Indeed, this Court has
historically respected and adhered to this tenet. See
Syl. Pt. 2, Ralston v. Town of Weston
46 W.Va. 544, 33 S.E. 326 (1899) (The statute of limitations runs against the state and
municipal corporations, as against individuals in similar cases.); Syl. Pt. 3, City of Wheeling
, 12 W.Va. 36 (1877) (The statute of limitations . . . runs against a municipal
corporation, the same as against a natural person.), overruled on other grounds
Finally, we have reviewed the wealth of authority on which the majority bases
its decision to find the pre-suit notice provision at issue to be a jurisdictional matter. In my
estimation, the extensive discussion in the majority opinion regarding treatment by other
jurisdictions of pre-suit notice statutes without comparatively examining those states'
constitutional mandates and authority with ours has led to a questionable, if not faulty,
Accordingly, I concur in that portion of the majority opinion allowing refiling
of suit by application of the savings statute, I respectfully dissent from the remainder of the
opinion, based upon my firmly rooted convictions.