IN THE SUPREME COURT OF APPEALS OF WEST-u-ISlampIJ1La-----~

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STATE OF WEST VIRGINIA ex rei FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS

Petitioners

vs

THE HONORABLE PATRICK N WILSON Judge of the Circuit Court of Wyoming County West Virginia GALEN HANSEN and ALBERT MAGRO

Respondents

VERIFIED PETITION FOR WRIT OF PROIDBITION

PATRICK MORRISSEY ATTORNEY GENERAL Dawn E George (WV Bar 10718) Assistant Attorney General West Virginia Higher Education Policy Commission 1018 Kanawha Boulevard East Charleston WV 25301 Telephone (304) 558-2102 Facsimile (304) 926-0461

Counselfor the Petitioner Fairmont State University Board ofGovernors

TABLE OF CONTENTS

I QUESTIONS PRESENTED I

II STATEMENT OF THE CASE 1

III SUMMARY OFARGUMENT 2

IV STATEMENT REGARDING ORAL ARGUMENT 2

V ARGUMENT2

A Issuance of a Writ ofProhibition is Appropriate Under the Standard Established by this Court 2

B The Respondent Judge Exceeded his Judicial Power by Exercising Subject Matter Jurisdiction Under the Pre-requisites of West Virginia Code sect 55-I 7-3(a)(1 ) 4

C The Respondent Judge Committed Error in Determining Marion County is an Appropriate Venue 6

I Venue considerations involving Fairmont fall under West Virginia Codesect 14-2-2 as the related code section West Virginia Code sect 14-2-2a does not confer venue on Fairmont 6

2 Considerations ofvenue when two separate State agencies are parties to a suit should be interpreted under West Virginia Code sect 14-2-2 over a separate general venue statute 8

VI CONCLUSION1 0

VERIFICATION 11

TABLE OF AUTHORITIES

Cases

Ables v Mooney 164 WVa 19264 SE2d 424 (1979) 5

Hanker v Banker 196 WVa 535474 SE2d 465 (1996) 8

Blankenship v Estep 201 WVa 261496 SE2d (1997) 3

Blower v West Virginia Educational Broadcasting Agency 182 WVa 528 389 SE2d 739 (1990) 9

Crystal RM v Charles AL 194 WVa 138459 SE2d 415 (1995) 2

Davis v West Virginia Bridge Commission 113 WVa 110 166 SE 819 (1932) 9

Gomez v State Athletic Commission 2016 WL 5348350 (WVaSeptember 232016) 5 6

Hinkle v Bauer Lumber Home Building Center Inc 158 WVa 492211 SE2d 70 (1975) 3

Kanode v Gills 2016 WL 2301206 (WVa May 242013) 5

McKinley v Queen 125 WVa 61925 SE2d 763 (1943) 3

Meadows v Wal-Mart Stores Inc 166 WVa 775 530 SE2d 676 (1999) 7

Melissa C v West Virginia Department ofHealth and Human Resources 2016 WL 2970887 (WVa May 20 2016) 5

Motto v CSX Transportation Inc 220 WVa 412 647 SE2d 848 passim

Ohio County Commission v Manchin 171 WVa 552301 SE2d 183 (1983) 2

Peterson v West Virginia University Board ofGovernors 2007 WL 2220192 (SDWVa July 31 2007) 5

Smith v Maynard 186 WVa 421 412 SE2d 822 (1991) 9

Smith v State Workmens Compensation Commissioner 159 WVa 108219 SE2d 361 (1975) 7

State ex rei Smith v Bosworth 145 WVa 753 117 SE2d 610 (1960) 3

State ex rei Dale v Stucky 232 WVa 299 752 SE2d 330 (2013) 3

State ex rei Stewart v Alsop 207 WVa 430 533 SE2d 362 (2013) 4 9

State ex rei TermNet Merchant Services Inc v Jordan 217 WVa 696 619 SE2d 209 (2005) 3

ii

TABLE OF AUTHORITIES

Cases

Ables v Mooney 164 WVa 19264 SE2d 424 (1979) 5

Hanker v Banker 196 WVa 535474 SE2d 465 (1996) 8

Blankenship v Estep 201 WVa 261496 SE2d (1997) 3

Blower v West Virginia Educational Broadcasting Agency 182 WVa 528 389 SE2d 739 (1990) 9

Crystal RM v Charles AL 194 WVa 138459 SE2d 415 (1995) 2

Davis v West Virginia Bridge Commission 113 WVa 110 166 SE 819 (1932) 9

Gomez v State Athletic Commission 2016 WL 5348350 (WVaSeptember 232016) 5 6

Hinkle v Bauer Lumber Home Building Center Inc 158 WVa 492211 SE2d 70 (1975) 3

Kanode v Gills 2016 WL 2301206 (WVa May 242013) 5

McKinley v Queen 125 WVa 61925 SE2d 763 (1943) 3

Meadows v Wal-Mart Stores Inc 166 WVa 775 530 SE2d 676 (1999) 7

Melissa C v West Virginia Department ofHealth and Human Resources 2016 WL 2970887 (WVa May 20 2016) 5

Motto v CSX Transportation Inc 220 WVa 412 647 SE2d 848 passim

Ohio County Commission v Manchin 171 WVa 552301 SE2d 183 (1983) 2

Peterson v West Virginia University Board ofGovernors 2007 WL 2220192 (SDWVa July 31 2007) 5

Smith v Maynard 186 WVa 421 412 SE2d 822 (1991) 9

Smith v State Workmens Compensation Commissioner 159 WVa 108219 SE2d 361 (1975) 7

State ex rei Smith v Bosworth 145 WVa 753 117 SE2d 610 (1960) 3

State ex rei Dale v Stucky 232 WVa 299 752 SE2d 330 (2013) 3

State ex rei Stewart v Alsop 207 WVa 430 533 SE2d 362 (2013) 4 9

State ex rei TermNet Merchant Services Inc v Jordan 217 WVa 696 619 SE2d 209 (2005) 3

ii

State ex rei West Virginia Real Estate Appraiser Licensing and Certification Board v Chiles 234 WVa 125 763 SE2d 663 (2014) 8

Thomas v Board ofEducation 167 WVa 911 280 SE2d 816 (1981) 8

Thomas v McDermitt 232 WVa 159 751 SE2d 264 (2013) 7

West Virginia Consolidated Public Retirement Board v Wood 233 WVa 222 757 SE2d 752 (2014) 7

Statutes

W Va Code sect 6-9A-l 5 W Va Code sect 6-9A-61 6 10 W Va Code sect 14-2-2passim W Va Code sect 14-2-2(a)8 W Va Code sect 14-2-2(a)(I)8 W Va Code sect 14-2-2apassim W Va Code sect 29A-5-44 W Va Code sect 53-1-1 2 W Va Code sect 55-13-1 5 W Va Code sect 55-17-1 4 W Va Code sect 55-17-3(a) 4 W Va Code sect 55-17-3(a)(1)passim

Rules

West Virginia Rules of Appellate Procedure 19 4

iii

I QUESTIONS PRESENTED

1 Whether the Respondent Judge exceeded his judicial powers by exercising subject matter

jurisdiction over the parties in violation of West Virginia Code sect 55-17-3(a)(1) (2008)

2 Whether the Respondent Judge exceeded his judicial powers in violation of the exclusive

venue statutes of West Virginia Code sect 14-2-2 (1976) by interpreting the text of West

Virginia Code sect 14-2-2a (2004) as including institutions ofhigher education against the

clear language of the Legislature

II STATEMENT OF THE CASE

On June 192017 the Marion County Circuit Court improperly denied Fairmont State

University Board of Govemors (hereinafter Fairmont) and the West Virginia Higher Education

Policy Commissions (hereinafter WVHEPC) The underlying cause of action was filed in the

Marion County Circuit Clerk on March 3 2017 without providing the pre-suit notice required by

West Virginia Code sect 55-17-3(a)(1) Appendix p 000001 Fairmont raised the issues of

improper subject-matter jurisdiction venue and failure to state a claim upon which relief may be

granted Id p 000002 The Circuit Court determined that pre-suit notice was not necessary in

the cause of action Id p 000006

After reaching this conclusion the Circuit Court determined the venue provisions of West

Virginia Code sect 14-2-2a requires an expansive reading to include Fairmont despite the clear

indication from the Legislature that Fairmont was not an institution ofhigher education

contemplated by the statuteld pp 000002-5 On further consideration of the parties arguments

the Circuit Court also adopted the argument that West Virginia Code sect 6-9A-6 (1999) provides

the more specific venue considerations despite the presence of a second state agency which does

not fall under the specific requirements of this statutory provision Id The Order did not consider

1

I QUESTIONS PRESENTED

1 Whether the Respondent Judge exceeded his judicial powers by exercising subject matter

jurisdiction over the parties in violation of West Virginia Code sect 55-17-3(a)(1) (2008)

2 Whether the Respondent Judge exceeded his judicial powers in violation of the exclusive

venue statutes of West Virginia Code sect 14-2-2 (1976) by interpreting the text of West

Virginia Code sect 14-2-2a (2004) as including institutions ofhigher education against the

clear language of the Legislature

II STATEMENT OF THE CASE

On June 192017 the Marion County Circuit Court improperly denied Fairmont State

University Board of Govemors (hereinafter Fairmont) and the West Virginia Higher Education

Policy Commissions (hereinafter WVHEPC) The underlying cause of action was filed in the

Marion County Circuit Clerk on March 3 2017 without providing the pre-suit notice required by

West Virginia Code sect 55-17-3(a)(1) Appendix p 000001 Fairmont raised the issues of

improper subject-matter jurisdiction venue and failure to state a claim upon which relief may be

granted Id p 000002 The Circuit Court determined that pre-suit notice was not necessary in

the cause of action Id p 000006

After reaching this conclusion the Circuit Court determined the venue provisions of West

Virginia Code sect 14-2-2a requires an expansive reading to include Fairmont despite the clear

indication from the Legislature that Fairmont was not an institution ofhigher education

contemplated by the statuteld pp 000002-5 On further consideration of the parties arguments

the Circuit Court also adopted the argument that West Virginia Code sect 6-9A-6 (1999) provides

the more specific venue considerations despite the presence of a second state agency which does

not fall under the specific requirements of this statutory provision Id The Order did not consider

1

or address this Courts previous rulings regarding West Virginia Code sect 14-2-2 and the potential

application ofother venue statutes in detennining venue against a state agency Id

III SUMMARY OF THE ARGUMENT

The Circuit Court committed clear error and exceeded its jurisdiction in failing to

consider application of West Virginia Code sect 55-17-3(a)(1) in this cause of action In all cases

involving state agencies this is a prerequisite for jurisdiction in the Circuit Courts and no actions

may go forward when Plaintiffs do not comply with the statutory requirements Motto v CSX

Transportation Inc 220 WVa 412 647 SE2d 848 (2007) Clear error also exists under the

Circuit Courts interpretation ofvenue under West Virginia Code sect 14-2-2 and sect 14-2-2a by

improperly engaging in judicial interpretation of the statute by adding statutory language and

intent and erroneously applying stale caselaw Ohio County Commission v Manchin 171 WVa

552301 SE2d 183 (1983)

III STATEMENT REGARDING ORAL ARGUMENT

Oral argument is warranted under Rule 19(a) of the West Virginia Rules ofAppellate

Procedure because this case involves assignments oferror in the application ofsettled

jurisdictional law requiring reversal oforders rendered by a Court lacking subject-matter

jurisdiction because resulting orders are void ab initio

v ARGUMENT

A Issuance of a Writ of Prohibition is Appropriate under the Standard Established by this Court

The writ ofprohibition shall lie as a matter of right in all cases ofusurpation and abuse

ofpower when the inferior court has no jurisdiction of the subject-matter in controversy or

having such jurisdiction exceeds its legitimate powers W Va Code sect 53-1-1 (1923) This

Court reviews jurisdictional questions de novo Syllabus Point 1 Crystal RM v Charlies AL

2

194 WVa 138459 SE2d 415 (1995) Lack ofjurisdiction of the subject matter may be raised

in any appropriate manner lI1d at any time during the pendency of the suit or action State ex

rei TermNet Merchant Services Inc v Jordan 217 WVa 696 619 S E2d 209 (2005)( quoting

McKinley v Queen 125 WVa 61962525 SE2d 763 766 (1943)(citation omittedraquo The

urgency of addressing problems regarding subject-matter jurisdiction cannot be understated

because any decree made by a court lacking jurisdiction is void TermNet 217 WVa at 700

619 SE2d at 2013

To enable the court to hear and determine an action suit or other proceeding it must

have jurisdiction of the subject matter and jurisdiction of the parties both are necessary and the

absence of either is fatal to its jurisdiction Syllabus Point 3 State ex reI Dale v Stucky 232

WVa 299 752 SE2d 330 (2013) see also Syllabus Point 3 State ex reI Smith v Bosworth

145 WVa 753 117 SE2d 610 (1960) Syllabus Point 3 Blankenship v Estep 201 WVa 261

496 SE2d 211 (1997) Whenever it is determined that a court has no jurisdiction to entertain

the subject matter of a civil action the forum court must take no further action on the case other

than to dismiss it from the docket Syllabus Point 1 Hinkle v Bauer Lumber amp Home Building

Center Inc 158 WVa 492 211 SE2d 705 (1975) [I]t is fundamental doctrine that

jurisdiction of the subject-matter can only be acquired by virtue of the Constitution or of some

statute Dale 232 WVa at 303-4 752 SE2d at 334-5

It is axiomatic that the Circuit Court must be the appropriate venue for any cause of

action in addition to subject-matter jurisdiction Venue in causes of action involving state

agencies is governed by West Virginia Code sect 14-2-2 Fairmont as an institution ofhigher

education not specifically delineated in West Virginia Code sect 14-2-2a is subject to the general

venue requirements of West Virginia Code sect 14-2-2 This venue is conferred by this Courts

3

interpretation of West Virginia Code sect 14-2-2 in instances where a separate venue statute

governs the issue cf State ex rel Stewart v Alsop 207 WVa 430434533 SE2d 362 366

(2000)(Considering venue against the State Superintendent under W Va Code sect 29A-5-4 and

finding venue rests on W Va Code sect 14-2-2)

Applying the foregoing legal principles to the instant cause of action there are no other

adequate means to obtain relief outside a writ of prohibition as the Circuit Court does not have

jurisdiction over the Petitioner Should the Circuit Court continue to proceed against the

Petitioner irreparable injury or harm will accrue to the Petitioner

B The Respondent Judge exceeded his Judicial Powers by Exercising Jurisdiction Because the Prerequisites of West Virginia Code sect 55-17-3(a)(I) Were Not Met

In the absence ofpre-suit notice pursuant to West Virginia Code sect 55-17-3(a)(1) the

Circuit Court may not exercise jurisdiction over the Petitioner West Virginia Code sect 55-17shy

3(a)(1) provides that a party instituting an action against a government agency must provide

both the agencys chief officer and the attorney general with written notice by certified mail of

the claim and relief requested at least thirty days prior to institution of the action The applicable

statute of li~itations is thereafter tolled for a period of thirty days from the date it is mailed and

again from the date evidenced by the return receipt that it was received by the agencys chief

officer In considering the applicable statute in a prior case this Court held that compliance

with the pre-suit notification provisions set forth in W V Code sect 55-17-3(a) (2002) is a

jurisdictional pre-requisite for filing an action against a State agency subject to the provisions of

W V Code sect 55-17-1 et seq (2002) Motto v CSXTransp Inc 220 WVa at 412647 SE2d

at 848

With the passage of this pre-suit notice the Legislature enacted notice requirements for

certain actions against executive branch agencies which may impact the public interest in order

4

to provide adequate time for all appropriate governmental entities to act Id 220 WVa at 419

647 SE2d at 855 hi so doing the applicable statute oflimitations extends during the pre-suit

notice period Id The failure to comply with the pre-suit notice deprives the Circuit court of

jurisdiction over this matter Id

Here the Circuit Court did not address the Petitioners arguments regarding pre-suit

notice under West Virginia Code sect 55-17-3(a)(1) instead relying on Ables v Mooney 164 WVa

264 SE2d 424 (1979) The application ofAbles to the instant cause of action is questionable

given the fact that Ables was decided prior to the passage of West Virginia Code sect 55-13-1 et

seq The decision in Ables simply addresses constitutional immunity and the ability to sue a state

agency or official in circuit court when the actions exceed constitutional authority This Cause of

Action is against the Fairmont State University Board of Governors as the governing body of the

institution There are no individual causes of action against any of the Board members related to

this cause ofaction

Since the decision in Motto interpretation of West Virginia Code sect 55-17-3(a)(1) has

rested on the premise that failure to provide pre-suit notice is a complete bar to jurisdiction in the

action See Peterson v West Virginia University Board aGovernors 2007 WL 2220192

(SDWVa July 31 2007)(Pre-suit notice must occur prior to the filing ofa complaint and does

not extend to notice prior to service ofthe complaint) Kanode v Gills 2013 WL 2301207

(WVa May 242013) Melissa C v West Virginia Department oHealth amp Human Resources

2016 WL 2970887 (WVa May 20 2016)(Petitioners failure to provide pre-suit notice

mandated dismissal of the action) This Court previously addressed pre-suit notice in Gomez v

State Athletic Commission as it relates to pre-suit notice under cases asserting violations of West

Virginia Code 6-9A-l et seq (1999 and held pre-suit notice was required under West Virginia

5

194 WVa 138459 SE2d 415 (1995) Lack ofjurisdiction of the subject matter may be raised

in any appropriate manner lI1d at any time during the pendency of the suit or action State ex

rei TermNet Merchant Services Inc v Jordan 217 WVa 696 619 S E2d 209 (2005)( quoting

McKinley v Queen 125 WVa 61962525 SE2d 763 766 (1943)(citation omittedraquo The

urgency of addressing problems regarding subject-matter jurisdiction cannot be understated

because any decree made by a court lacking jurisdiction is void TermNet 217 WVa at 700

619 SE2d at 2013

To enable the court to hear and determine an action suit or other proceeding it must

have jurisdiction of the subject matter and jurisdiction of the parties both are necessary and the

absence of either is fatal to its jurisdiction Syllabus Point 3 State ex reI Dale v Stucky 232

WVa 299 752 SE2d 330 (2013) see also Syllabus Point 3 State ex reI Smith v Bosworth

145 WVa 753 117 SE2d 610 (1960) Syllabus Point 3 Blankenship v Estep 201 WVa 261

496 SE2d 211 (1997) Whenever it is determined that a court has no jurisdiction to entertain

the subject matter of a civil action the forum court must take no further action on the case other

than to dismiss it from the docket Syllabus Point 1 Hinkle v Bauer Lumber amp Home Building

Center Inc 158 WVa 492 211 SE2d 705 (1975) [I]t is fundamental doctrine that

jurisdiction of the subject-matter can only be acquired by virtue of the Constitution or of some

statute Dale 232 WVa at 303-4 752 SE2d at 334-5

It is axiomatic that the Circuit Court must be the appropriate venue for any cause of

action in addition to subject-matter jurisdiction Venue in causes of action involving state

agencies is governed by West Virginia Code sect 14-2-2 Fairmont as an institution ofhigher

education not specifically delineated in West Virginia Code sect 14-2-2a is subject to the general

venue requirements of West Virginia Code sect 14-2-2 This venue is conferred by this Courts

3

interpretation of West Virginia Code sect 14-2-2 in instances where a separate venue statute

governs the issue cf State ex rel Stewart v Alsop 207 WVa 430434533 SE2d 362 366

(2000)(Considering venue against the State Superintendent under W Va Code sect 29A-5-4 and

finding venue rests on W Va Code sect 14-2-2)

Applying the foregoing legal principles to the instant cause of action there are no other

adequate means to obtain relief outside a writ of prohibition as the Circuit Court does not have

jurisdiction over the Petitioner Should the Circuit Court continue to proceed against the

Petitioner irreparable injury or harm will accrue to the Petitioner

B The Respondent Judge exceeded his Judicial Powers by Exercising Jurisdiction Because the Prerequisites of West Virginia Code sect 55-17-3(a)(I) Were Not Met

In the absence ofpre-suit notice pursuant to West Virginia Code sect 55-17-3(a)(1) the

Circuit Court may not exercise jurisdiction over the Petitioner West Virginia Code sect 55-17shy

3(a)(1) provides that a party instituting an action against a government agency must provide

both the agencys chief officer and the attorney general with written notice by certified mail of

the claim and relief requested at least thirty days prior to institution of the action The applicable

statute of li~itations is thereafter tolled for a period of thirty days from the date it is mailed and

again from the date evidenced by the return receipt that it was received by the agencys chief

officer In considering the applicable statute in a prior case this Court held that compliance

with the pre-suit notification provisions set forth in W V Code sect 55-17-3(a) (2002) is a

jurisdictional pre-requisite for filing an action against a State agency subject to the provisions of

W V Code sect 55-17-1 et seq (2002) Motto v CSXTransp Inc 220 WVa at 412647 SE2d

at 848

With the passage of this pre-suit notice the Legislature enacted notice requirements for

certain actions against executive branch agencies which may impact the public interest in order

4

to provide adequate time for all appropriate governmental entities to act Id 220 WVa at 419

647 SE2d at 855 hi so doing the applicable statute oflimitations extends during the pre-suit

notice period Id The failure to comply with the pre-suit notice deprives the Circuit court of

jurisdiction over this matter Id

Here the Circuit Court did not address the Petitioners arguments regarding pre-suit

notice under West Virginia Code sect 55-17-3(a)(1) instead relying on Ables v Mooney 164 WVa

264 SE2d 424 (1979) The application ofAbles to the instant cause of action is questionable

given the fact that Ables was decided prior to the passage of West Virginia Code sect 55-13-1 et

seq The decision in Ables simply addresses constitutional immunity and the ability to sue a state

agency or official in circuit court when the actions exceed constitutional authority This Cause of

Action is against the Fairmont State University Board of Governors as the governing body of the

institution There are no individual causes of action against any of the Board members related to

this cause ofaction

Since the decision in Motto interpretation of West Virginia Code sect 55-17-3(a)(1) has

rested on the premise that failure to provide pre-suit notice is a complete bar to jurisdiction in the

action See Peterson v West Virginia University Board aGovernors 2007 WL 2220192

(SDWVa July 31 2007)(Pre-suit notice must occur prior to the filing ofa complaint and does

not extend to notice prior to service ofthe complaint) Kanode v Gills 2013 WL 2301207

(WVa May 242013) Melissa C v West Virginia Department oHealth amp Human Resources

2016 WL 2970887 (WVa May 20 2016)(Petitioners failure to provide pre-suit notice

mandated dismissal of the action) This Court previously addressed pre-suit notice in Gomez v

State Athletic Commission as it relates to pre-suit notice under cases asserting violations of West

Virginia Code 6-9A-l et seq (1999 and held pre-suit notice was required under West Virginia

5

interpretation of West Virginia Code sect 14-2-2 in instances where a separate venue statute

governs the issue cf State ex rel Stewart v Alsop 207 WVa 430434533 SE2d 362 366

(2000)(Considering venue against the State Superintendent under W Va Code sect 29A-5-4 and

finding venue rests on W Va Code sect 14-2-2)

Applying the foregoing legal principles to the instant cause of action there are no other

adequate means to obtain relief outside a writ of prohibition as the Circuit Court does not have

jurisdiction over the Petitioner Should the Circuit Court continue to proceed against the

Petitioner irreparable injury or harm will accrue to the Petitioner

B The Respondent Judge exceeded his Judicial Powers by Exercising Jurisdiction Because the Prerequisites of West Virginia Code sect 55-17-3(a)(I) Were Not Met

In the absence ofpre-suit notice pursuant to West Virginia Code sect 55-17-3(a)(1) the

Circuit Court may not exercise jurisdiction over the Petitioner West Virginia Code sect 55-17shy

3(a)(1) provides that a party instituting an action against a government agency must provide

both the agencys chief officer and the attorney general with written notice by certified mail of

the claim and relief requested at least thirty days prior to institution of the action The applicable

statute of li~itations is thereafter tolled for a period of thirty days from the date it is mailed and

again from the date evidenced by the return receipt that it was received by the agencys chief

officer In considering the applicable statute in a prior case this Court held that compliance

with the pre-suit notification provisions set forth in W V Code sect 55-17-3(a) (2002) is a

jurisdictional pre-requisite for filing an action against a State agency subject to the provisions of

W V Code sect 55-17-1 et seq (2002) Motto v CSXTransp Inc 220 WVa at 412647 SE2d

at 848

With the passage of this pre-suit notice the Legislature enacted notice requirements for

certain actions against executive branch agencies which may impact the public interest in order

4

to provide adequate time for all appropriate governmental entities to act Id 220 WVa at 419

647 SE2d at 855 hi so doing the applicable statute oflimitations extends during the pre-suit

notice period Id The failure to comply with the pre-suit notice deprives the Circuit court of

jurisdiction over this matter Id

Here the Circuit Court did not address the Petitioners arguments regarding pre-suit

notice under West Virginia Code sect 55-17-3(a)(1) instead relying on Ables v Mooney 164 WVa

264 SE2d 424 (1979) The application ofAbles to the instant cause of action is questionable

given the fact that Ables was decided prior to the passage of West Virginia Code sect 55-13-1 et

seq The decision in Ables simply addresses constitutional immunity and the ability to sue a state

agency or official in circuit court when the actions exceed constitutional authority This Cause of

Action is against the Fairmont State University Board of Governors as the governing body of the

institution There are no individual causes of action against any of the Board members related to

this cause ofaction

Since the decision in Motto interpretation of West Virginia Code sect 55-17-3(a)(1) has

rested on the premise that failure to provide pre-suit notice is a complete bar to jurisdiction in the

action See Peterson v West Virginia University Board aGovernors 2007 WL 2220192

(SDWVa July 31 2007)(Pre-suit notice must occur prior to the filing ofa complaint and does

not extend to notice prior to service ofthe complaint) Kanode v Gills 2013 WL 2301207

(WVa May 242013) Melissa C v West Virginia Department oHealth amp Human Resources

2016 WL 2970887 (WVa May 20 2016)(Petitioners failure to provide pre-suit notice

mandated dismissal of the action) This Court previously addressed pre-suit notice in Gomez v

State Athletic Commission as it relates to pre-suit notice under cases asserting violations of West

Virginia Code 6-9A-l et seq (1999 and held pre-suit notice was required under West Virginia

5

to provide adequate time for all appropriate governmental entities to act Id 220 WVa at 419

647 SE2d at 855 hi so doing the applicable statute oflimitations extends during the pre-suit

notice period Id The failure to comply with the pre-suit notice deprives the Circuit court of

jurisdiction over this matter Id

Here the Circuit Court did not address the Petitioners arguments regarding pre-suit

notice under West Virginia Code sect 55-17-3(a)(1) instead relying on Ables v Mooney 164 WVa

264 SE2d 424 (1979) The application ofAbles to the instant cause of action is questionable

given the fact that Ables was decided prior to the passage of West Virginia Code sect 55-13-1 et

seq The decision in Ables simply addresses constitutional immunity and the ability to sue a state

agency or official in circuit court when the actions exceed constitutional authority This Cause of

Action is against the Fairmont State University Board of Governors as the governing body of the

institution There are no individual causes of action against any of the Board members related to

this cause ofaction

Since the decision in Motto interpretation of West Virginia Code sect 55-17-3(a)(1) has

rested on the premise that failure to provide pre-suit notice is a complete bar to jurisdiction in the

action See Peterson v West Virginia University Board aGovernors 2007 WL 2220192

(SDWVa July 31 2007)(Pre-suit notice must occur prior to the filing ofa complaint and does

not extend to notice prior to service ofthe complaint) Kanode v Gills 2013 WL 2301207

(WVa May 242013) Melissa C v West Virginia Department oHealth amp Human Resources

2016 WL 2970887 (WVa May 20 2016)(Petitioners failure to provide pre-suit notice

mandated dismissal of the action) This Court previously addressed pre-suit notice in Gomez v

State Athletic Commission as it relates to pre-suit notice under cases asserting violations of West

Virginia Code 6-9A-l et seq (1999 and held pre-suit notice was required under West Virginia

5

Code sect 55-17-3(a)(1) 2016 WL 5348350 (WVa September 232016) There are no factual

differences between the instant cause of action and that found in Gomez thus the results should be

the same Fairmont is entitled to the same consideration in its motion to dismiss for the failure to

provide pre-suit notice under West Virginia Code sect 55-17-3(a)(1)

Simply put the Circuit Court does not have subject matter jurisdiction over the parties

and an order mandating dismissal is appropriate

C Marion County is an inappropriate venue (or this case against both Fairmont and the Higher Education Policy Commission

It is well settled that venue against agencies of this State is governed by West Virginia

Code sect 14-2-2 Unfortunately the Circuit Clerk improperly determined through judicially

interpreting a different statute West Virginia Code sect 14-2-2a language the Legislature did not

write and bootstrapped from that statute to create venue in that Court Error also accrued to the

parties when the Circuit Court determined that venue pursuant to West Virginia Code sect 6-9A-6

provided more specific venue requirements than found in West Virginia Code sect 14-2-2

1 Venue considerations involving Fairmontfall under West Virginia Code sect 14-2-2 as the related code section West Virginia Code sect 14-2-2a does not contain an ambiguity allowingfor interpretation to include Fairmont

Courts may not engage in judicial interpretation of a statute in the absence of a clearly

ambiguous term contained in the statute nor may they add language to a statute that the

Legislature did not intend Motto 220 WVa at 420647 SE2d at 856

The two code sections primarily at issue here are West Virginia Code sect 14-2-2 and sect 14shy

2-2a The former is the statute which addresses venue for cases against most State agencies

while the latter provides special venue requirements for West Virginia and Marshall Universities

The terms of Section 2a could not be clearer It provides any civil action in which the

West Virginia University Board of Govemors West Virginia University the West Virginia

6

University Medical School or any department or office of any of those entities or any officer

employee agent intern or resident ofany of those entities acting within the scope ofhis or her

employment is made a party defendant shall be brought in the circuit court of any county

wherein the cause of action arose unless otherwise agreed by the parties W Va Code sect 14-2shy

2a(a) Subsection (b) provides identical language for Marshall University No other institution of

higher learning are contemplated in the statute and there is no catch all provision

The Circuit Court determined venue was proper in Marion County by determining that

West Virginia Codesect 14-2-2a was intended by the Legislature to apply to more institutions of

higher learning than just the enumerated schools ofWest Virginia and Marshall Universities

Appendix p 000004 The Circuit Court did this by improperly interpreting section 2a to reach

that result even though the statute contains no ambiguity which requires interpretation Id

A cardinal rule of statutory construction is that significance and effect must if

possible be given to every section clause word or part of the statute Syllabus Point 3

Meadows v Wal-Mart Stores Inc 166 WVa 775 530 SE2d 676 (1999) Syllabus Point 7

Thomas v McDermitt 232 WVa 159 751 SE2d 264 (2013) The primary object in

construing a statute is to ascertain and give effect to the intent of the Legislature Syllabus Point

1 Smith v State Workmens Compensation Commissioner 159 WVa 108219 SE2d 361

(1975) Syllabus Point 6 West Virginia Consolidated Public Retirement Board v Wood 233

WVa 222 757 SE2d 752 (2014) Where the Legislature itself has not acted it is improper for

this Court under the guise of statutory interpretation to amend legislative enactments in order to

judicially impose upon the Legislature a result it did not intend Motto 220 WVa at 420647

SE2d at 856 It is not for this Court [to] arbitrarily read into [a statute] that which it does not

say Just as courts are not to eliminate through judicial interpretation words that were

7

purposefully included we are obligated not to add to statutes something the Legislature

purposefully omitted Id 213 WVa at 398582 SE2d at 845 (quoting Banker v Banker 196

WVa 535 546474 SE2d 465476 (1996raquo

In the Order from the Circuit Court venue resulted from an improper interpretation ofa

statute containing no ambiguity of application Where the Legislature itself has not acted it is

improper for this Court under the guise of statutory interpretation to amend legislative

enactments in order to judicially impose upon the Legislature a result it did not intend Motto

220 WVa at 420647 SE2d at 856

To allow this interpretation of the statute to include Fairmont and other institutions of

higher education would impose an interpretation on the statute the Legislature did not intend

Nothing in the statute in any way refers suggests connection to or otherwise has application to

any other school beyond West Virginia and Marshall Universities Yet this is what the Circuit

Court did

2 Considerations 0venue when two state agencies are parties to a suit should be interpreted under West Virginia Code sect 14-2-2 over a separate general venue statute

When a cause of action involves a state agency of venue rests on the requirements set

forth in West Virginia Code sect 14-2-2 over separate general non-specific venue statutes This

Section requires that any suit in which the governor any other state officer or a state agency is

made a party defendant shall be brought and prosecuted only in the circuit court of Kanawha

County W Va Code sect 14-2-2(a)(1) Actions wherein a state agency or official is named

whether as a principal party or third-party defendant may be brought only in the Circuit Court of

Kanawha County Syllabus Point 2 Thomas v Board oEducation 167 WVa 911280 SE2d

816 (1981) Syllabus Point 2 State ex reI West Virginia Real Estate Appraiser Licensing and

8

Certification Board v Chiles 234 WVa 125 763 SE2d 663 (2014) In detennining whether a

particular organization is a state agency we will examine its legislative framework In particular

we will see if its powers are substantially created by the legislature and whether its governing

boards composition is prescribed the legislature Syllabus Point 1 Blower v West Virginia

Educational Broadcasting Authority 182 WVa 528 389 SE2d 739 (1990) In this case there

is no question that Fairmont and the WVHEPC are State agencies

In prior cases this Court has consistently interpreted West Virginia Code sect 14-2-2 as

exclusive and controlling as to other general venue provisions Stewart 207 WVa at 434533

SE2d at 366 The reason for exclusive venue statutes such as West Virginia Code sect 14-2-2 is

to prevent the great inconvenience and possible public detriment that would attend if

functionaries of the state government should be required to defend official conduct and states

property interests in sections of the commonwealth remote from the capitol Smith v

Maynard 186 WVa 421423412 SE2d 822824 (1991)(quotingDavis v West Virginia

Bridge Commission 113 WVa 110 113 166 SE 819821 (1932raquo

Where as in this case there are two separate state agencies names as party defendants

venue should be considered exclusively in accordance with West Virginia Code sect 14-2-2 as a

different result will result in a state agency improperly brought before a circuit court in an

inappropriate venue Simply put the statutory framework requires this case against Fainnont and

the WVHEPC to be brought in Kanawha County 1 While the Circuit Court arguably might have

venue over Fainnont alone under West Virginia Code sect 6-9A-6 it does not have proper venue

1 During the pendency of the instant cause ofact jon Plaintiff Hansen attempted to file a separate injunction against Fairmont exclusively in the Circuit Court of Kanawha County on two separate occasions In the first case the Circuit Court dismissed the action for lack of notice under W Va Code sect 55-53 In the second the Circuit found it did not have jurisdiction as the suit named Fairmont exclusively Plaintiff did not appeal either result making those rulings irrelevant to this case

9

for the WVHEPC Section 2 facially provides venue against State agencies such as the

Commission is solely in the Circuit Court ofKanawha County This should end the question

v CONCLUSION

WHEREFORE Fairmont respectfully requests an order declaring the Circuit Courts

June 19 2017 Order void ab initio prohibiting further action against Fairmont or otherwise

directing the Respondent Judge to dismiss the instant cause of action for lack of subject matter

jurisdiction and venue over the parties and ordering such other and further relief as necessary to

prevent prejudice

Respectfully Submitted

FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS

By Counsel

PATRICK MORRISSEY ATTORNEY GENERAL

Dawn E George State Bar 18 Assistant Attorney General West Virginia Higher Education Policy Commission Legal Division - 8th Floor 1018 Kanawha Blvd East Charleston West Virginia 25301 Telephone (304) 558-2102 Facsimile (304) 558-4820

Counsel for Petitioners Fairmont State University Board ofGovernors Patrick Morrissey

Dated July 192017

10

VERIFICATION

I Dawn E George being first duly sworn state that I have read the foregoing VERIFIED

PETITION FOR WRIT OF PROHIBITION that the factual representation contained therein are

true except so far as they are state to be on infonnation and belief and that insofar as they are

stated to be on infonnation and belief I believe them to be true

~e~ Taken subscribed and sworn before me this If)day of July 2017

My commission expires Dee 24 20m 1

-111111111111111111111111111111111111111111111111111111111= OfFICAl SEAL = STATE OF WEST VIRGINIA = = McnARY PUBue = VICtOrIa TimberS_ = EduCIIion PolIcy CUll = KanaWha Blvd East 8th Roor Charte5tOn WV 25301 = My COfIIIIIISIoII Explres Dec 24 2020 = 1111111111111 11111111111111111111111111111111111111111111 =

11

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12

University Medical School or any department or office of any of those entities or any officer

employee agent intern or resident ofany of those entities acting within the scope ofhis or her

employment is made a party defendant shall be brought in the circuit court of any county

wherein the cause of action arose unless otherwise agreed by the parties W Va Code sect 14-2shy

2a(a) Subsection (b) provides identical language for Marshall University No other institution of

higher learning are contemplated in the statute and there is no catch all provision

The Circuit Court determined venue was proper in Marion County by determining that

West Virginia Codesect 14-2-2a was intended by the Legislature to apply to more institutions of

higher learning than just the enumerated schools ofWest Virginia and Marshall Universities

Appendix p 000004 The Circuit Court did this by improperly interpreting section 2a to reach

that result even though the statute contains no ambiguity which requires interpretation Id

A cardinal rule of statutory construction is that significance and effect must if

possible be given to every section clause word or part of the statute Syllabus Point 3

Meadows v Wal-Mart Stores Inc 166 WVa 775 530 SE2d 676 (1999) Syllabus Point 7

Thomas v McDermitt 232 WVa 159 751 SE2d 264 (2013) The primary object in

construing a statute is to ascertain and give effect to the intent of the Legislature Syllabus Point

1 Smith v State Workmens Compensation Commissioner 159 WVa 108219 SE2d 361

(1975) Syllabus Point 6 West Virginia Consolidated Public Retirement Board v Wood 233

WVa 222 757 SE2d 752 (2014) Where the Legislature itself has not acted it is improper for

this Court under the guise of statutory interpretation to amend legislative enactments in order to

judicially impose upon the Legislature a result it did not intend Motto 220 WVa at 420647

SE2d at 856 It is not for this Court [to] arbitrarily read into [a statute] that which it does not

say Just as courts are not to eliminate through judicial interpretation words that were

7

purposefully included we are obligated not to add to statutes something the Legislature

purposefully omitted Id 213 WVa at 398582 SE2d at 845 (quoting Banker v Banker 196

WVa 535 546474 SE2d 465476 (1996raquo

In the Order from the Circuit Court venue resulted from an improper interpretation ofa

statute containing no ambiguity of application Where the Legislature itself has not acted it is

improper for this Court under the guise of statutory interpretation to amend legislative

enactments in order to judicially impose upon the Legislature a result it did not intend Motto

220 WVa at 420647 SE2d at 856

To allow this interpretation of the statute to include Fairmont and other institutions of

higher education would impose an interpretation on the statute the Legislature did not intend

Nothing in the statute in any way refers suggests connection to or otherwise has application to

any other school beyond West Virginia and Marshall Universities Yet this is what the Circuit

Court did

2 Considerations 0venue when two state agencies are parties to a suit should be interpreted under West Virginia Code sect 14-2-2 over a separate general venue statute

When a cause of action involves a state agency of venue rests on the requirements set

forth in West Virginia Code sect 14-2-2 over separate general non-specific venue statutes This

Section requires that any suit in which the governor any other state officer or a state agency is

made a party defendant shall be brought and prosecuted only in the circuit court of Kanawha

County W Va Code sect 14-2-2(a)(1) Actions wherein a state agency or official is named

whether as a principal party or third-party defendant may be brought only in the Circuit Court of

Kanawha County Syllabus Point 2 Thomas v Board oEducation 167 WVa 911280 SE2d

816 (1981) Syllabus Point 2 State ex reI West Virginia Real Estate Appraiser Licensing and

8

Certification Board v Chiles 234 WVa 125 763 SE2d 663 (2014) In detennining whether a

particular organization is a state agency we will examine its legislative framework In particular

we will see if its powers are substantially created by the legislature and whether its governing

boards composition is prescribed the legislature Syllabus Point 1 Blower v West Virginia

Educational Broadcasting Authority 182 WVa 528 389 SE2d 739 (1990) In this case there

is no question that Fairmont and the WVHEPC are State agencies

In prior cases this Court has consistently interpreted West Virginia Code sect 14-2-2 as

exclusive and controlling as to other general venue provisions Stewart 207 WVa at 434533

SE2d at 366 The reason for exclusive venue statutes such as West Virginia Code sect 14-2-2 is

to prevent the great inconvenience and possible public detriment that would attend if

functionaries of the state government should be required to defend official conduct and states

property interests in sections of the commonwealth remote from the capitol Smith v

Maynard 186 WVa 421423412 SE2d 822824 (1991)(quotingDavis v West Virginia

Bridge Commission 113 WVa 110 113 166 SE 819821 (1932raquo

Where as in this case there are two separate state agencies names as party defendants

venue should be considered exclusively in accordance with West Virginia Code sect 14-2-2 as a

different result will result in a state agency improperly brought before a circuit court in an

inappropriate venue Simply put the statutory framework requires this case against Fainnont and

the WVHEPC to be brought in Kanawha County 1 While the Circuit Court arguably might have

venue over Fainnont alone under West Virginia Code sect 6-9A-6 it does not have proper venue

1 During the pendency of the instant cause ofact jon Plaintiff Hansen attempted to file a separate injunction against Fairmont exclusively in the Circuit Court of Kanawha County on two separate occasions In the first case the Circuit Court dismissed the action for lack of notice under W Va Code sect 55-53 In the second the Circuit found it did not have jurisdiction as the suit named Fairmont exclusively Plaintiff did not appeal either result making those rulings irrelevant to this case

9

for the WVHEPC Section 2 facially provides venue against State agencies such as the

Commission is solely in the Circuit Court ofKanawha County This should end the question

v CONCLUSION

WHEREFORE Fairmont respectfully requests an order declaring the Circuit Courts

June 19 2017 Order void ab initio prohibiting further action against Fairmont or otherwise

directing the Respondent Judge to dismiss the instant cause of action for lack of subject matter

jurisdiction and venue over the parties and ordering such other and further relief as necessary to

prevent prejudice

Respectfully Submitted

FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS

By Counsel

PATRICK MORRISSEY ATTORNEY GENERAL

Dawn E George State Bar 18 Assistant Attorney General West Virginia Higher Education Policy Commission Legal Division - 8th Floor 1018 Kanawha Blvd East Charleston West Virginia 25301 Telephone (304) 558-2102 Facsimile (304) 558-4820

Counsel for Petitioners Fairmont State University Board ofGovernors Patrick Morrissey

Dated July 192017

10

VERIFICATION

I Dawn E George being first duly sworn state that I have read the foregoing VERIFIED

PETITION FOR WRIT OF PROHIBITION that the factual representation contained therein are

true except so far as they are state to be on infonnation and belief and that insofar as they are

stated to be on infonnation and belief I believe them to be true

~e~ Taken subscribed and sworn before me this If)day of July 2017

My commission expires Dee 24 20m 1

-111111111111111111111111111111111111111111111111111111111= OfFICAl SEAL = STATE OF WEST VIRGINIA = = McnARY PUBue = VICtOrIa TimberS_ = EduCIIion PolIcy CUll = KanaWha Blvd East 8th Roor Charte5tOn WV 25301 = My COfIIIIIISIoII Explres Dec 24 2020 = 1111111111111 11111111111111111111111111111111111111111111 =

11

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12

purposefully included we are obligated not to add to statutes something the Legislature

purposefully omitted Id 213 WVa at 398582 SE2d at 845 (quoting Banker v Banker 196

WVa 535 546474 SE2d 465476 (1996raquo

In the Order from the Circuit Court venue resulted from an improper interpretation ofa

statute containing no ambiguity of application Where the Legislature itself has not acted it is

improper for this Court under the guise of statutory interpretation to amend legislative

enactments in order to judicially impose upon the Legislature a result it did not intend Motto

220 WVa at 420647 SE2d at 856

To allow this interpretation of the statute to include Fairmont and other institutions of

higher education would impose an interpretation on the statute the Legislature did not intend

Nothing in the statute in any way refers suggests connection to or otherwise has application to

any other school beyond West Virginia and Marshall Universities Yet this is what the Circuit

Court did

2 Considerations 0venue when two state agencies are parties to a suit should be interpreted under West Virginia Code sect 14-2-2 over a separate general venue statute

When a cause of action involves a state agency of venue rests on the requirements set

forth in West Virginia Code sect 14-2-2 over separate general non-specific venue statutes This

Section requires that any suit in which the governor any other state officer or a state agency is

made a party defendant shall be brought and prosecuted only in the circuit court of Kanawha

County W Va Code sect 14-2-2(a)(1) Actions wherein a state agency or official is named

whether as a principal party or third-party defendant may be brought only in the Circuit Court of

Kanawha County Syllabus Point 2 Thomas v Board oEducation 167 WVa 911280 SE2d

816 (1981) Syllabus Point 2 State ex reI West Virginia Real Estate Appraiser Licensing and

8

Certification Board v Chiles 234 WVa 125 763 SE2d 663 (2014) In detennining whether a

particular organization is a state agency we will examine its legislative framework In particular

we will see if its powers are substantially created by the legislature and whether its governing

boards composition is prescribed the legislature Syllabus Point 1 Blower v West Virginia

Educational Broadcasting Authority 182 WVa 528 389 SE2d 739 (1990) In this case there

is no question that Fairmont and the WVHEPC are State agencies

In prior cases this Court has consistently interpreted West Virginia Code sect 14-2-2 as

exclusive and controlling as to other general venue provisions Stewart 207 WVa at 434533

SE2d at 366 The reason for exclusive venue statutes such as West Virginia Code sect 14-2-2 is

to prevent the great inconvenience and possible public detriment that would attend if

functionaries of the state government should be required to defend official conduct and states

property interests in sections of the commonwealth remote from the capitol Smith v

Maynard 186 WVa 421423412 SE2d 822824 (1991)(quotingDavis v West Virginia

Bridge Commission 113 WVa 110 113 166 SE 819821 (1932raquo

Where as in this case there are two separate state agencies names as party defendants

venue should be considered exclusively in accordance with West Virginia Code sect 14-2-2 as a

different result will result in a state agency improperly brought before a circuit court in an

inappropriate venue Simply put the statutory framework requires this case against Fainnont and

the WVHEPC to be brought in Kanawha County 1 While the Circuit Court arguably might have

venue over Fainnont alone under West Virginia Code sect 6-9A-6 it does not have proper venue

1 During the pendency of the instant cause ofact jon Plaintiff Hansen attempted to file a separate injunction against Fairmont exclusively in the Circuit Court of Kanawha County on two separate occasions In the first case the Circuit Court dismissed the action for lack of notice under W Va Code sect 55-53 In the second the Circuit found it did not have jurisdiction as the suit named Fairmont exclusively Plaintiff did not appeal either result making those rulings irrelevant to this case

9

for the WVHEPC Section 2 facially provides venue against State agencies such as the

Commission is solely in the Circuit Court ofKanawha County This should end the question

v CONCLUSION

WHEREFORE Fairmont respectfully requests an order declaring the Circuit Courts

June 19 2017 Order void ab initio prohibiting further action against Fairmont or otherwise

directing the Respondent Judge to dismiss the instant cause of action for lack of subject matter

jurisdiction and venue over the parties and ordering such other and further relief as necessary to

prevent prejudice

Respectfully Submitted

FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS

By Counsel

PATRICK MORRISSEY ATTORNEY GENERAL

Dawn E George State Bar 18 Assistant Attorney General West Virginia Higher Education Policy Commission Legal Division - 8th Floor 1018 Kanawha Blvd East Charleston West Virginia 25301 Telephone (304) 558-2102 Facsimile (304) 558-4820

Counsel for Petitioners Fairmont State University Board ofGovernors Patrick Morrissey

Dated July 192017

10

VERIFICATION

I Dawn E George being first duly sworn state that I have read the foregoing VERIFIED

PETITION FOR WRIT OF PROHIBITION that the factual representation contained therein are

true except so far as they are state to be on infonnation and belief and that insofar as they are

stated to be on infonnation and belief I believe them to be true

~e~ Taken subscribed and sworn before me this If)day of July 2017

My commission expires Dee 24 20m 1

-111111111111111111111111111111111111111111111111111111111= OfFICAl SEAL = STATE OF WEST VIRGINIA = = McnARY PUBue = VICtOrIa TimberS_ = EduCIIion PolIcy CUll = KanaWha Blvd East 8th Roor Charte5tOn WV 25301 = My COfIIIIIISIoII Explres Dec 24 2020 = 1111111111111 11111111111111111111111111111111111111111111 =

11

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12

Certification Board v Chiles 234 WVa 125 763 SE2d 663 (2014) In detennining whether a

particular organization is a state agency we will examine its legislative framework In particular

we will see if its powers are substantially created by the legislature and whether its governing

boards composition is prescribed the legislature Syllabus Point 1 Blower v West Virginia

Educational Broadcasting Authority 182 WVa 528 389 SE2d 739 (1990) In this case there

is no question that Fairmont and the WVHEPC are State agencies

In prior cases this Court has consistently interpreted West Virginia Code sect 14-2-2 as

exclusive and controlling as to other general venue provisions Stewart 207 WVa at 434533

SE2d at 366 The reason for exclusive venue statutes such as West Virginia Code sect 14-2-2 is

to prevent the great inconvenience and possible public detriment that would attend if

functionaries of the state government should be required to defend official conduct and states

property interests in sections of the commonwealth remote from the capitol Smith v

Maynard 186 WVa 421423412 SE2d 822824 (1991)(quotingDavis v West Virginia

Bridge Commission 113 WVa 110 113 166 SE 819821 (1932raquo

Where as in this case there are two separate state agencies names as party defendants

venue should be considered exclusively in accordance with West Virginia Code sect 14-2-2 as a

different result will result in a state agency improperly brought before a circuit court in an

inappropriate venue Simply put the statutory framework requires this case against Fainnont and

the WVHEPC to be brought in Kanawha County 1 While the Circuit Court arguably might have

venue over Fainnont alone under West Virginia Code sect 6-9A-6 it does not have proper venue

1 During the pendency of the instant cause ofact jon Plaintiff Hansen attempted to file a separate injunction against Fairmont exclusively in the Circuit Court of Kanawha County on two separate occasions In the first case the Circuit Court dismissed the action for lack of notice under W Va Code sect 55-53 In the second the Circuit found it did not have jurisdiction as the suit named Fairmont exclusively Plaintiff did not appeal either result making those rulings irrelevant to this case

9

for the WVHEPC Section 2 facially provides venue against State agencies such as the

Commission is solely in the Circuit Court ofKanawha County This should end the question

v CONCLUSION

WHEREFORE Fairmont respectfully requests an order declaring the Circuit Courts

June 19 2017 Order void ab initio prohibiting further action against Fairmont or otherwise

directing the Respondent Judge to dismiss the instant cause of action for lack of subject matter

jurisdiction and venue over the parties and ordering such other and further relief as necessary to

prevent prejudice

Respectfully Submitted

FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS

By Counsel

PATRICK MORRISSEY ATTORNEY GENERAL

Dawn E George State Bar 18 Assistant Attorney General West Virginia Higher Education Policy Commission Legal Division - 8th Floor 1018 Kanawha Blvd East Charleston West Virginia 25301 Telephone (304) 558-2102 Facsimile (304) 558-4820

Counsel for Petitioners Fairmont State University Board ofGovernors Patrick Morrissey

Dated July 192017

10

VERIFICATION

I Dawn E George being first duly sworn state that I have read the foregoing VERIFIED

PETITION FOR WRIT OF PROHIBITION that the factual representation contained therein are

true except so far as they are state to be on infonnation and belief and that insofar as they are

stated to be on infonnation and belief I believe them to be true

~e~ Taken subscribed and sworn before me this If)day of July 2017

My commission expires Dee 24 20m 1

-111111111111111111111111111111111111111111111111111111111= OfFICAl SEAL = STATE OF WEST VIRGINIA = = McnARY PUBue = VICtOrIa TimberS_ = EduCIIion PolIcy CUll = KanaWha Blvd East 8th Roor Charte5tOn WV 25301 = My COfIIIIIISIoII Explres Dec 24 2020 = 1111111111111 11111111111111111111111111111111111111111111 =

11

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12

for the WVHEPC Section 2 facially provides venue against State agencies such as the

Commission is solely in the Circuit Court ofKanawha County This should end the question

v CONCLUSION

WHEREFORE Fairmont respectfully requests an order declaring the Circuit Courts

June 19 2017 Order void ab initio prohibiting further action against Fairmont or otherwise

directing the Respondent Judge to dismiss the instant cause of action for lack of subject matter

jurisdiction and venue over the parties and ordering such other and further relief as necessary to

prevent prejudice

Respectfully Submitted

FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS

By Counsel

PATRICK MORRISSEY ATTORNEY GENERAL

Dawn E George State Bar 18 Assistant Attorney General West Virginia Higher Education Policy Commission Legal Division - 8th Floor 1018 Kanawha Blvd East Charleston West Virginia 25301 Telephone (304) 558-2102 Facsimile (304) 558-4820

Counsel for Petitioners Fairmont State University Board ofGovernors Patrick Morrissey

Dated July 192017

10

VERIFICATION

I Dawn E George being first duly sworn state that I have read the foregoing VERIFIED

PETITION FOR WRIT OF PROHIBITION that the factual representation contained therein are

true except so far as they are state to be on infonnation and belief and that insofar as they are

stated to be on infonnation and belief I believe them to be true

~e~ Taken subscribed and sworn before me this If)day of July 2017

My commission expires Dee 24 20m 1

-111111111111111111111111111111111111111111111111111111111= OfFICAl SEAL = STATE OF WEST VIRGINIA = = McnARY PUBue = VICtOrIa TimberS_ = EduCIIion PolIcy CUll = KanaWha Blvd East 8th Roor Charte5tOn WV 25301 = My COfIIIIIISIoII Explres Dec 24 2020 = 1111111111111 11111111111111111111111111111111111111111111 =

11

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12

VERIFICATION

I Dawn E George being first duly sworn state that I have read the foregoing VERIFIED

PETITION FOR WRIT OF PROHIBITION that the factual representation contained therein are

true except so far as they are state to be on infonnation and belief and that insofar as they are

stated to be on infonnation and belief I believe them to be true

~e~ Taken subscribed and sworn before me this If)day of July 2017

My commission expires Dee 24 20m 1

-111111111111111111111111111111111111111111111111111111111= OfFICAl SEAL = STATE OF WEST VIRGINIA = = McnARY PUBue = VICtOrIa TimberS_ = EduCIIion PolIcy CUll = KanaWha Blvd East 8th Roor Charte5tOn WV 25301 = My COfIIIIIISIoII Explres Dec 24 2020 = 1111111111111 11111111111111111111111111111111111111111111 =

11

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12

IN THE WEST VIRGINIA SUPREME COURT OF APPEALS NO _____

State of West Virginia ex reI Fairmont State University Board of Governors

Petitioners

vs

The Honorable Patrick N Wilson Judge of the Circuit Court of Marion County West Virginia Galen Hansen and Albert Magro

Respondents

CERTIFICATE OF SERVICE

I Dawn E George Assistant Attorney General and counsel for Petitioner verify that on July 19

2017 I served a copy ofPetitioners Briefand Petitioners Appendix upon counsel for respondents

as indicated below by US Mail to the addresses below and sent copies to the additional counsel

listed below by US Mail

Honorable Patrick N Wilson Candace Kraus Marion County Courthouse Associate General Counsel PO Box 629 West Virginia Higher Education Policy Commission 219 Adams Street Legal Division-8th Flood Fainnont WV 26554 1018 Kanawha Blvd East

Charleston WV 25301 Jerry Carbo 614 Eric Drive Shippensburg P A 17257

12