W. Va. Dep't of Health & Human Res. v. E.H., 14-0664

Decision Date07 October 2015
Docket NumberNo. 14-0845,No. 14-0664,14-0664,14-0845
CourtSupreme Court of West Virginia
PartiesWEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU FOR BEHAVIORAL HEALTH AND HEALTH FACILITIES, Respondent Below, Petitioner v. E.H., et al. Petitioners Below, Respondents

Appeal from the Circuit Court of Kanawha County

Honorable Louis H. Bloom, Judge

Civil Action No. 81-MISC-585

AFFIRMED, IN PART, AND REVERSED, IN PART

Patrick Morrisey, Esq.

Attorney General

Elbert Lin, Esq.

Solicitor General

Daniel W. Greear, Esq.

Chief Counsel

Julie Marie Blake, Esq.

Assistant Attorney General

Charleston, West Virginia

Attorneys for the Petitioner

Lydia C. Milnes, Esq.

Jennifer S. Wagner, Esq.

Mountain State Justice, Inc.

Charleston, West Virginia

Attorneys for the Respondents

JUSTICE LOUGHRY delivered the Opinion of the Court.

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. In the context of institutional reform litigation, this Court may choose to exercise its appellate jurisdiction over an order entered by the circuit court that it deems to approximate a final order by its nature and effect.

2. "Inherent in the republican form of government established by our State Constitution is a concept of due process that insures that the people receive the benefit of legislative enactments." Syl. Pt. 1, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1982).

3. "It is the obligation of the State to provide the resources necessary to accord inmates of State mental institutions the rights which the State has granted them under W.Va. Code, 27-5-9 [1977]." Syl. Pt. 3, E.H. v. Matin, 168 W.Va. 248, 284 S.E.2d 232 (1981). LOUGHRY, Justice:

This case is before the Court on the consolidated appeals of the petitioner, the West Virginia Department of Health and Human Resources, Bureau for Behavioral Health and Health Facilities (the "DHHR," unless otherwise indicated), seeking relief from the June 3, 2014, and August 13, 2014, orders of the Circuit Court of Kanawha County. As grounds for this appeal, the DHHR asserts: (1) this Court has appellate jurisdiction to consider these appeals despite the circuit court's failure to certify the challenged orders as partial final judgments; (2) the circuit court exceeded its authority under the separation of powers doctrine and our West Virginia precedent by compelling compliance with an Agreed Order entered on July 2, 2009, through the immediate implementation of a pay raise restructuring plan at two state mental health hospitals; and (3) it reasonably believed the 2009 Agreed Order only required an increase to the salaries of existing direct care employees. Following a careful review of the briefs, the arguments of counsel, the lengthy appendix record submitted, and applicable law, we reverse the circuit court's refusal to declare the particular rulings on appeal as partial final judgments, but we otherwise affirm the orders at issue.

I. Facts and Procedural Background1

In order to fully appreciate the circuit court's rulings on appeal, it is necessary to review the history of this institutional reform litigation that began in 1981 when a group of patients at the Mildred Mitchell-Bateman Hospital ("Bateman")2 filed a mandamus action in this Court seeking judicial intervention for deplorable conditions described as the "'Dickensian Squalor' of unconscionable magnitudes of West Virginia's mental institutions." E.H. v. Matin, 168 W.Va. 248, 249, 284 S.E.2d 232, 233 (1981) (internal citation omitted) ("Matin I"). The Court stated that it was only being asked "to order the executive branch to fulfill its obligation under clear and unambiguous statutory provisions[,]" recognizing that the Legislature had previously "acknowledged its concern for both humane conditions of custody and effective therapeutic treatment . . ." through its passage of West Virginia Code § 27-5-93 in 1977. Matin I, 168 W.Va. at 257, 284 S.E.2d at 237. The Court transferred the case to the Circuit Court of Kanawha County for the purpose of monitoring compliance while bearing in mind the following:

(1) W. Va. Code, 27-5-9 [1977] creates specific enforceable rights in the entire inmate population of the State's mental hospitals. (2) W. Va. Code, 27-5-9 [1977] requires a system of custody and treatment which will reflect the competent application of current, available scientific knowledge. Where there is a good faith difference of opinion among equally competent professional experts concerning appropriate methods of treatment and custody, such differences should be resolved by the director of the West Virginia Department of Health and not by the courts. (3) It is the obligation of the [S]tate to provide the resources necessary to accord inmates of mental institutions the rights which the State has granted them under W. Va. Code, 27-5-9 [1977].

Matin I, 168 W.Va. at 259-60, 284 S.E.2d at 238. In 1983, the parties agreed to the West Virginia Behavioral Health System Plan, which the circuit court accepted. This Plan, which was designed to address the problems identified by the parties, was to be implemented by the DHHR with oversight by the circuit court and a court monitor.

Ten years later, the matter was again before this Court. See E.H. v. Matin ("Matin II"), 189 W.Va. 102, 428 S.E.2d 523 (1993). The circuit court had enjoined the construction of a new mental health hospital to replace the Weston State Hospital.4 Concluding that the circuit court exceeded its authority, the Court held that "[w]here the legislature, through the budget process, expressly provides for funding to build a new public facility, absent some constitutional challenge or an express statutory provision to the contrary, the courts are not authorized to interfere with the legislative mandate." Matin II, 189 W.Va. at 103, 428 S.E.2d at 524, syl. pt. 1. Thereafter, the William R. Sharpe, Jr. Hospital ("Sharpe") was built. Following additional briefing by the parties regarding whether continued court monitoring was necessary, the Court issued its opinion in E.H. v. Matin ("Matin III"), 189 W.Va. 445, 432 S.E.2d 207 (1993), retaining the court monitor for at least eighteen additional months, or longer if shown to be necessary.

In 2002, the parties and the circuit court agreed to dissolve the office of the court monitor and removed the case from the circuit court's active docket, although jurisdiction to reopen the case was retained to address various unresolved issues. In fact, the circuit court continued to hold periodic hearings to assess the parties' progress in that regard. Around this same time, the position of "Ombudsman for Behavioral Health" was developed by the DHHR.5 Regular reports were issued by the Ombudsman to both the circuit court and the DHHR and, in the annual report for 2007-2008, several issues were identified, including those involving the provision and coordination of case management services and the treatment of persons with traumatic brain injuries.

On July 3, 2007, the circuit court adopted and entered the parties' mediated Consent Order on Services To Individuals With Traumatic Brain Injuries. During hearings held in 2008, the circuit court addressed the continuing problem of the DHHR's compliance with this consent order. Based upon the significant issues raised in the Ombudsman's reports, including non-compliance with the consent order and possible violations of West Virginia Code § 27-5-9, the circuit court entered an order on August 28, 2008, reopening the case and scheduled an evidentiary hearing.

Thereafter, the DHHR sought a writ of prohibition in this Court to prevent the lower court from reopening the case. In addressing the DHHR's request for extraordinary relief, the Court recounted the contents of the July 3, 2008, Ombudsman report that identified violations of patients' rights that were first identified decades earlier in Matin I. The Court noted that this report detailed

staff related issues including a practice called "Freezing", in which staff members are required to work an additional eight hour shift on top of the eight hour shift they have just finished. This "Freezing" process is mandatory and those that refuse to follow the practice are given written reprimands.6 The staff also stated that the "90 day temp" employee system does not work. These 90 day temporary workers are often, if not always, unqualified and inexperienced staff assigned to deal with violent and aggressive patients. One of these 90 day temporary employees was fired for drinking on the job and the regular staff generally does not feel comfortable working with them.

Matin v. Bloom ("Matin IV"), 223 W.Va. 379, 383-84, 674 S.E.2d 244-45 (2009) (footnote omitted) and (footnote added). In summarizing the situation existing then, the Court stated that

[i]n general, the portrait that emerges from the Ombudsman's reports is that of a hospital that is overcrowded with patients, most of whom are frustrated by living on top of each other, being denied privacy and not having daily access to basic grooming needs. The regular staff suffers from extremely low morale due to forced overtime and working with unqualified temporary workers with questionable backgrounds. Specifically, the term 'Dickensian Squalor' that Justice Neely used to describe the hospital in 1981 is an apt description of the hospital that emerges from the Ombudsman's July 3, 2008 report.

Id., 223 W.Va. at 384, 674 S.E.2d at 245 (emphasis added). The Court refused to issue the writ on the grounds that the circuit court had "the power to ensure that patients are receiving the treatment guaranteed to them under W.Va. Code § 27-5-9[,]" as well as the "power to enforce a Consent Order it previously issued." See id. at 381; 674 S.E.2d at 242.

Following Matin IV, the circuit court held an evidentiary hearing in April 2009. Dr. Shahid Masood, the clinical director at Bateman, testified that staffing vacancies were causing unsustainable working hours...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT