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

CourtSupreme Court of West Virginia
Writing for the CourtLOUGHRY, Justice
Citation778 S.E.2d 643,236 W.Va. 194
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.
Decision Date07 October 2015
Docket NumberNos. 14–0664,14–0845.

236 W.Va. 194
778 S.E.2d 643

WEST 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.

Nos. 14–0664
14–0845.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 2015.
Decided Oct. 7, 2015.


Patrick Morrisey, Esq., Attorney General, Elbert Lin, Esq., Solicitor General, Daniel W. Greear, Esq., Chief Counsel, Julie Marie Blake, Esq., Assistant Attorney General, Charleston, WV, for Petitioner.

Lydia C. Milnes, Esq., Jennifer S. Wagner, Esq., Mountain State Justice, Inc., Charleston, WV, for Respondents.

Opinion
778 S.E.2d 646

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 Background 1

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”)2filed 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 § 27–5–93in 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

778 S.E.2d 647

to replace the Weston State Hospital.4Concluding 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.5Regular 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.6The 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 240, 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
778 S.E.2d 648
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 for clinical staff; that use of temporary employees was an inefficient use of resources because “by the time they are trained[,] it is time for them to leave[;]” and that increasing salaries would be an “extremely effective” method for recruiting additional full-time...

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  • W. Va. Dep't of Health & Human Res. v. E.H., No. 14–0965.
    • United States
    • Supreme Court of West Virginia
    • October 22, 2015
    ...our recent holding in syllabus point one of West Virginia Department of Health and Human Resources et al. v. E.H.,––– W.Va. ––––, 778 S.E.2d 643, Nos. 14–0664, 14–0845, 2015 WL 5928503 (Oct. 7, 2015), wherein we held that “[i]n the context of institutional reform litigation, this Court may ......
  • Curry v. W. Va. Consol. Pub. Ret. Bd., No. 14–0846.
    • United States
    • Supreme Court of West Virginia
    • October 7, 2015
    ...statute requires service for a minimum of ten daysin any calendar month to receive a monthof service credit.5“ ‘Statutes which relate to 778 S.E.2d 643the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactm......
  • W. Va. Dep't of Health & Human Res. v. E.H., No. 16-0781
    • United States
    • Supreme Court of West Virginia
    • June 9, 2017
    ...Court recently recounted the case's long and extensive history in West Virginia Department of Health and Human Resources v. E.H., et al., 236 W. Va. 194, 778 S.E.2d 643 (2015), the lengthy procedural facts that are not pertinent to this appeal will not be repeated here. The instant appeal i......
3 cases
  • W. Va. Dep't of Health & Human Res. v. E.H., No. 14–0965.
    • United States
    • Supreme Court of West Virginia
    • October 22, 2015
    ...our recent holding in syllabus point one of West Virginia Department of Health and Human Resources et al. v. E.H.,––– W.Va. ––––, 778 S.E.2d 643, Nos. 14–0664, 14–0845, 2015 WL 5928503 (Oct. 7, 2015), wherein we held that “[i]n the context of institutional reform litigation, this Court may ......
  • Curry v. W. Va. Consol. Pub. Ret. Bd., No. 14–0846.
    • United States
    • Supreme Court of West Virginia
    • October 7, 2015
    ...statute requires service for a minimum of ten daysin any calendar month to receive a monthof service credit.5“ ‘Statutes which relate to 778 S.E.2d 643the same subject matter should be read and applied together so that the Legislature's intention can be gathered from the whole of the enactm......
  • W. Va. Dep't of Health & Human Res. v. E.H., No. 16-0781
    • United States
    • Supreme Court of West Virginia
    • June 9, 2017
    ...Court recently recounted the case's long and extensive history in West Virginia Department of Health and Human Resources v. E.H., et al., 236 W. Va. 194, 778 S.E.2d 643 (2015), the lengthy procedural facts that are not pertinent to this appeal will not be repeated here. The instant appeal i......

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