Gribben v. Kirk, No. 22910

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY
Citation195 W.Va. 488,466 S.E.2d 147
Parties, 3 Wage & Hour Cas.2d (BNA) 306 John T. GRIBBEN, et al., Petitioners Below, Appellees, v. Col. Thomas KIRK, Superintendent of the Division of Public Safety; Glen B. Gainer, Jr., Auditor of the State of West Virginia; and Larrie Bailey, Treasurer of the State of West Virginia, Respondents Below, Appellants.
Docket NumberNo. 22910
Decision Date08 December 1995

Page 147

466 S.E.2d 147
195 W.Va. 488, 3 Wage & Hour Cas.2d (BNA) 306
John T. GRIBBEN, et al., Petitioners Below, Appellees,
v.
Col. Thomas KIRK, Superintendent of the Division of Public
Safety; Glen B. Gainer, Jr., Auditor of the State of West
Virginia; and Larrie Bailey, Treasurer of the State of West
Virginia, Respondents Below, Appellants.
No. 22910.
Supreme Court of Appeals of
West Virginia.
Submitted Sept. 19, 1995.
Decided Dec. 8, 1995.

Page 149

[195 W.Va. 490] Syllabus by the Court

1. "In certain instances a suit may be maintained against a State official in his individual capacity, notwithstanding the constitutional immunity provision found in Article VI, Section 35 of the West Virginia Constitution, where the relief sought involves a prospective declaration of the parties' rights. However, where the relief sought involves an attempt to obtain a retroactive monetary recovery against the official based on his prior acts and which recovery is payable from State funds, the constitutional immunity provision bars such relief." Syl. pt. 2, Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979).

2. Mandamus will lie against a State official to adjust prospectively his or her conduct to bring it into compliance with any statutory or constitutional standard.

3. The crucial date for drawing a line between prospective and retroactive relief should be the initiation of the relevant mandamus action and not the date of judgment.

4. In cases of "special damages," prejudgment interest must be granted as a matter of right.

Barbara H. Allen, Michael C. Allen, Allen & Allen, Charleston, for Appellees.

Donald L. Darling, Senior Deputy Attorney General, Charleston, for Appellants.

Webster J. Arceneaux III, Thomas G. Casto, Lewis, Friedberg, Glasser, Casey and Rollins, Charleston, for amicus curiae William R. Cordle, et al.

CLECKLEY, Justice:

The respondents below and appellants herein, Colonel Thomas Kirk, Superintendent of the Division of Public Safety (DPS) 1; Glen B. Gainer, Jr., Auditor of the State of West Virginia; and Larrie Bailey, Treasurer of the State of West Virginia, appeal the December 29, 1994, and March 17, 1995, orders of the Circuit Court of Kanawha County. The order dated December 29, 1994, awarded the petitioners below and appellees herein, John T. Gribben, et al., who are 117 present and

Page 150

[195 W.Va. 491] former members of the DPS, an aggregate sum of $1,152,678.37 in a mandamus proceeding for unpaid overtime wages. The March 17, 1995, order awarded an additional amount of $4,093.07, for a total sum of $1,156,771.44. 2 Both orders issued writs of mandamus against the Auditor and Treasurer and directed the Auditor to pay the petitioners' claims, together with interest accrued thereon from December 31, 1988, by warrants drawn upon the State Treasury. The orders further directed the Treasurer to endorse the checks drawn upon the warrants.

On appeal, the respondents assert the circuit court erred by ordering a monetary award payable from the general funds of the State Treasury and by awarding interest in a mandamus proceeding. The respondents further assert that if this Court finds interest is appropriate, the circuit court erred in determining the date from which interest should be calculated. By cross-appeal, the petitioners allege the circuit court erred in setting the date interest should begin accruing. Although both parties argue the circuit court erred in setting the date, the parties do not agree upon a date that should be used to calculate the interest due.

I.

FACTS AND PROCEDURAL HISTORY

This case represents the third group of present and former State Police Troopers who have filed actions in an attempt to collect unpaid back wages for overtime. In the first action, Adams, et al. v. Mooney, Civil Action No. Misc.-77-342, the Honorable Patrick Casey, Judge of the Circuit Court of Kanawha County, by order entered January 14, 1988, awarded 123 current and former State Police Troopers $484,254.86 in retroactive overtime pay. The second action, Cordle, et al. v. Kirk, 3 Civil Action No. 83-P.Misc.622, bears an important relationship to the present case and, therefore, it is necessary for this Court to explain the Cordle case in more detail.

Cordle was a class action mandamus proceeding filed on October 13, 1983, requesting the circuit court to order the DPS Superintendent to compensate the petitioners for overtime wages. By order dated December 31, 1988, the Honorable Margaret L. Workman, who then was serving as a Judge on the Circuit Court of Kanawha County, 4 found the exemption in W.Va.Code, 15-2-5, 5 of State Police Troopers from the overtime pay provision of the West Virginia Wage and Hour Law, W.Va.Code, 21-5C-1, et seq., "is unconstitutional in that it denies equal protection under the laws as required by the Fourteenth Amendment to the United States Constitution and it violates the prohibition against passage of special legislation found in Article 6, Section 39 of the West Virginia Constitution." (Citation omitted).

The order further provided that under the facts of the case, an award of back wages is not barred under West Virginia's constitutional immunity against suit. 6 Nevertheless, although the petitioners argued the appropriate time period to calculate the award was from July 1, 1978, until June 30, 1985, the circuit court determined the petitioners could not receive retroactive overtime pay pursuant to this Court's decision in Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979),

Page 151

[195 W.Va. 492] prior to October 13, 1983, the date the lawsuit was filed. Instead, the circuit court awarded the petitioners back wages for the time frame from October 13, 1983, "to June 30, 1985, the date Federal Wage and Hour guidelines were adopted by the department." The order did not identify the individuals entitled to the overtime pay or the sum certain amount due.

By "AMENDED JUDGMENT ORDER" filed on August 10, 1992, 7 the Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, identified 392 individuals who were entitled to relief under the December 31, 1988, order. The order calculated the amount of unpaid overtime due each individual, which resulted in an aggregate award of $3,501,501.35, plus costs and fees. The order also issued a writ of mandamus against the DPS "to allocate sufficient funds from its budget to compensate the Petitioners ... plus reasonable costs and fees as approved by the Court." This decision in Cordle was not appealed by the State.

The parties agree that the Cordle class has experienced a significant amount of difficulty in collecting the award. 8 According to the respondents' brief, the collection efforts of the Cordle class were unsuccessful until the 1994 Legislature appropriated $2,000,000 for the 1994-95 fiscal year to pay "Overtime and Wage Court Awards." Of the $2,000,000 appropriated, the Adams class received full payment on the principal in the amount of $484,254.86. The Cordle class received partial payment in the amount of $1,500,000. 9

Meanwhile, the third action evolved. On February 10, 1994, another group of State Police Troopers filed a "Motion for Leave to Intervene" in Cordle. 10 This group claimed they were coerced and mislead into "opting out" of the Cordle litigation. These petitioners were denied the right to intervene; so, on March 1, 1994, they filed this independent action for a writ of mandamus in the Circuit Court of Kanawha County captioned John T. Gribben, et al. v. Col. Thomas Kirk, Superintendent of the Division of Public Safety, Glen B. Gainer, Jr., Auditor of the State of West Virginia, and Larrie Bailey, Treasurer of the State of West Virginia, Civil Action No. 94-MISC-160. The petitioners requested that the circuit court issue a writ of mandamus declaring them to be members of the Cordle class and enforcing their right to relief pursuant to the Cordle judgment. By order dated June 22, 1994, the circuit court granted the writ of mandamus upon the finding that misrepresentations were made and the petitioners were intimidated and coerced into "opting out" of the Cordle class. The order declared the Gribben petitioners to be members of the Cordle class and stated they are entitled to the same relief as the Cordle class for unpaid wages from October 13, 1983, to June 30, 1985.

By orders dated December 29, 1994, and March 17, 1995, 11 the circuit court awarded the Gribben petitioners the aggregate total principal of $1,156,771.44. The circuit court also awarded interest payable thereon from December 31, 1988, the date the Cordle class was deemed entitled to unpaid wages, even though the class members and the amount due to each member was not calculated until the order dated August 10, 1992. Both orders issued writs of mandamus against the State Auditor and Treasurer to pay the petitioners'

Page 152

[195 W.Va. 493] claims by warrants drawn on the State Treasury.

II.

DISCUSSION

We take up two questions: (1) whether sovereign immunity or separation of powers precludes a court from ordering the petitioners a monetary award payable from the general funds of the State Treasury; and (2) whether the circuit court erred by awarding interest in a mandamus proceeding. For purposes of clarity, we discuss the issues of sovereign immunity and separation of powers separately. The issues presented in this case involve questions of law; therefore, our review is plenary and de novo. See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995). More specifically, appellate courts review questions involving principles of sovereign immunity de novo. United States v. Woodley, 9 F.3d 774, 781 (9th Cir.1993).

A.

Sovereign Immunity

The respondents argue that the constitutional immunity provision of Section 35 of Article VI of the West Virginia Constitution bars the petitioners' claim for back overtime pay. Section 35 of Article VI of the West Virginia...

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47 practice notes
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...court makes a clear error of judgment or exceeds the bounds of permissible choices in the circumstances.'" (quoting Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 With respect to the sentences imposed for Allen's numerous misdemeanor convictions, we find that the trial court prope......
  • Rowe v. Grapevine Corp., No. 26353.
    • United States
    • Supreme Court of West Virginia
    • December 15, 1999
    ...45, 521 S.E.2d 537 (1998), this position is without merit. See infra section III. C. of this opinion. 25. As we noted in Gribben v. Kirk, 195 W.Va. 488, 466 S.E.2d 147 (1995), "the privity concept is fairly elastic under West Virginia law, as elsewhere." Id. at 498, 466 S.E.2d at 157 n. 26.......
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...to right the wrong that has been committed." Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or in other words: "We grant trial court judges wide latitude in conducting the business of their courts.......
  • Hensley v. West Virginia DHHR, No. 25020.
    • United States
    • Supreme Court of West Virginia
    • October 2, 1998
    ..."In reviewing a circuit court's award of prejudgment interest, we usually apply an abuse of discretion standard." Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995) (citation omitted). "Under the abuse of discretion standard, we will not disturb a circuit court's decision unles......
  • Request a trial to view additional results
47 cases
  • State v. Allen, No. 25980.
    • United States
    • Supreme Court of West Virginia
    • November 17, 1999
    ...court makes a clear error of judgment or exceeds the bounds of permissible choices in the circumstances.'" (quoting Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 With respect to the sentences imposed for Allen's numerous misdemeanor convictions, we find that the trial court prope......
  • Rowe v. Grapevine Corp., No. 26353.
    • United States
    • Supreme Court of West Virginia
    • December 15, 1999
    ...45, 521 S.E.2d 537 (1998), this position is without merit. See infra section III. C. of this opinion. 25. As we noted in Gribben v. Kirk, 195 W.Va. 488, 466 S.E.2d 147 (1995), "the privity concept is fairly elastic under West Virginia law, as elsewhere." Id. at 498, 466 S.E.2d at 157 n. 26.......
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • December 12, 2001
    ...to right the wrong that has been committed." Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or in other words: "We grant trial court judges wide latitude in conducting the business of their courts.......
  • Hensley v. West Virginia DHHR, No. 25020.
    • United States
    • Supreme Court of West Virginia
    • October 2, 1998
    ..."In reviewing a circuit court's award of prejudgment interest, we usually apply an abuse of discretion standard." Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995) (citation omitted). "Under the abuse of discretion standard, we will not disturb a circuit court's decision unles......
  • Request a trial to view additional results

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