Link to PDF file
No. 33918 - J.H. v. West Virginia Division of Rehabilitation Services, a State Agency
Benjamin, Chief Justice, concurring:
I concur with the holding of the Court. I write separately to again question the
jurisprudence of this Court's holding in Pittsburgh Elevator Co. v. West Virginia Board of
Regents, 172 W.Va. 743, 310 S.E.2d 675 (1983). The majority incorporates as Syllabus
Point 2 herein, the second syllabus point of Pittsburgh Elevator, in which this Court held that
[s]uits which seek no recovery from state funds, but rather allege that recovery is sought
under and up to the limits of the State's liability insurance coverage, fall outside the
traditional constitutional bar to suits against the State.
As set forth in my concurring opinion in Blessing v. National Engineering &
Contracting Co., 222 W.Va. 267, 664 S.E.2d 152 (2008), I believe the constitutionality of
the Pittsburgh Elevator decision should be reconsidered by this Court in view of the clear
and unambiguous mandate of sovereign immunity set forth in our Constitution. The
Constitution of West Virginia, Art. VI, § 35 (1872). Judicially-created exceptions to clear
and unambiguous mandates in the Constitution of West Virginia are neither appropriate nor
legitimate. Although it may be tempting, perhaps even expedient, for this Court to nullify
or amend constitutional provisions for reasons we deem important or necessary, we must
resist this urge lest this Court exceed both its legitimate power and our role in constitutional
governance. In this manner, we serve the greater good when we adhere to our constitutional
mandate, not when we except ourselves from our constitutional obligations in order to serve
partisan agendas or to satisfy some vague personal notion of cosmic justice. Such is a
disrespect to the document from which we derive our power.
I further believe that this Court should also make inquiry into how payments
in a claim such as this would be made to one making a claim against a State agency. Should
payments be made directly or indirectly from a state agency and not from a separate bona fide
insurance policy purchased by the State, Pittsburgh Elevator, in my opinion, would not, by
its own terms, apply.
I do not dissent herein, however, because the constitutional viability of Pittsburgh Elevator was not properly raised as error herein. The issue not being properly
being before the Court, I do not fault my colleagues for not addressing the issues of
sovereign immunity and coverage and concur in the majority opinion.