Supreme Court of Appeals to Hear Cases in
Barbour County Courthouse

      Philippi, W. Va. - The Barbour County Courthouse, which is marking its centennial year, will celebrate another historic event on October 7 at 10:00 a.m. For the first time, the West Virginia Supreme Court will hear cases in the newly restored courthouse in Philippi.

      The five justices will hear oral arguments in five cases. The public is invited to attend and also may watch and listen to the proceedings over the Supreme Court Web site at www.state.wv.us/wvsca or over public access television Channel 9. Local high school and college students will be divided into groups and observe the cases as a teaching tool.

      The Barbour County Commission paid for the courthouse restoration with various grants and private donations. "The Supreme Court’s visit recognizes the importance of the work that’s been done to restore the Barbour County Courthouse. Our courthouses are symbols of our communities, and it is vital to improve them," Barbour and Taylor Circuit Judge Alan Moats said.

1. Foundation for Independent Living, Inc., et al. v. Cabell-Huntington Board of Health , No. 31120. This is an appeal from a permanent injunction entered in the Circuit Court of Cabell County, wherein the circuit court ruled in favor of the Foundation, declared that the local board of health had exceeded its powers and found the provisions of a local ordinance restricting smoking to be an impermissible use of police power reserved to the legislature. The ordinance in question seeks to ban smoking in certain enclosed public areas within Cabell County. The board of health contends that it was within its discretion to implement and enforce the subject regulation. An amicus curiae brief was filed on behalf of the Local Health Association of West Virginia, West Virginia Public Health Association, Inc., West Virginia Association of Sanitarians, West Virginia State Medical Association, West Virginia Hospital Association, Coalition for a Tobacco-Free West Virginia, Harrison County Medical Society Alliance, American Lung Association of West Virginia, National Association of Local Boards of Health and Americans for Nonsmokers’ Rights. A motion to intervene in the case was granted to David Dryden and the Kanawha-Charleston Board of Health, parties in a similar challenge to a Kanawha County smoking ordinance. Counsel for the parties in both the Cabell and Kanawha County cases will appear and argue.

2. Bernice Hughes Adkins v. Jimmy Stacy, et al. , No. 31242. This is an appeal from the final order of the Circuit Court of Logan County. It is a real property dispute over a parcel of land between two neighbors. Plaintiff claims the portion of land belongs to her and has been encroached upon by defendants. Defendants claim the property in dispute belongs to them by way of adverse possession. The trial court, after conducting a bench trial, ruled in favor of the defendants on their adverse possession claim, thus holding that the land in dispute belongs to the defendants. The plaintiff claims the decision was in error and appeals to this Court asking that the circuit court order be reversed and that the case be remanded for further proceedings.

(Bernice Hughes Adkins is represented by William T. Forester, Logan, WV. Defendants are represented by Mark Hobbs, Chapmanville, WV.)

3. Frank S. Martino v. Betty J. Barnett, et al. , No. 31270. This certified question arises from the Circuit Court of Harrison County, concerning the interpretation of a federal law known as the Gramm-Leach-Bliley Act, which is designed to protect the privacy of nonpublic personal information from unlawful disclosure, and the West Virginia Privacy Act. The plaintiff is seeking the address of defendant Betty J. Barnett from her auto insurer, Nationwide Mutual Insurance Co., so that she may be served with a Summons and Complaint in an auto accident case. Nationwide filed a Motion for Protective Order below, contending that the Gramm-Leach-Bliley Act prohibits such disclosure to the plaintiff. Certain certified questions concerning the Act arose and were answered by the circuit court in its order, stating that the Act does not apply to the information sought by the plaintiff and Nationwide should therefore provide defendant’s address to the plaintiff for the purpose requested. Nationwide Mutual Insurance Co. argues that the circuit court answered the questions incorrectly. The plaintiff asserts that dissemination of such routine information for the purpose it is sought is not restricted by the Act. Amicus curiae briefs were filed by the West Virginia Bankers Association and the American Bankers Association on the interpretation of the Gramm-Leach-Bliley Act.

(Frank Martino is represented by David J. Romano and Michael J. Romano, Clarksburg, WV. Nationwide Mutual Insurance Co. is represented by E. Kay Fuller and Walter M. Jones, III, Martin & Seibert, LC, Martinsburg, WV.)

4. State v. Sheila Jean Brooks , No. 31158. This criminal appeal arises from defendant’s conviction in the Circuit Court of Mercer County for battery. The defendant contends that there was error with regard to certain evidentiary rulings and instructions given to the jury during the trial of this matter. The defendant argues that had the jury instructions included a different self defense instruction, as well as a mutual affray instruction, she would not have been convicted of the battery charges. She also contends that if certain photographs and medical records were admitted into evidence she would not have been convicted of the battery charges. The defendant is seeking a new trial. In response, the State argues that the defendant was not entitled to any jury instruction on self defense or a mutual affray. The State has taken the position that the photographs and medical records at issue were properly excluded.

5. Haislop and Reed v. Gary Edgell, Supt., WV Dept. of Public Safety, et al. , No. 31261. This appeal involves certain constitutional challenges to the West Virginia Sexual Offender Registration Act. The defendants, who were convicted of sexual offenses, filed an injunction in the Circuit Court of Wood County attempting to prohibit publication of their names as sex offenders as provided under the Act. Defendants do not challenge their convictions as sexual offenders, instead, the defendants raise constitutional challenges to the lower court’s refusal to grant their injunction – alleging a violation of ex post facto principles and the due process clause. They argue that the retroactive application of the West Virginia Sexual Offender Registration Act to persons who committed the crimes before the public notification provisions became effective, requiring lifetime publication, is a violation of ex post facto principles embodied in the West Virginia Constitution. Defendants also raise due process challenges, arguing that they have a right to a hearing to demonstrate that rehabilitation and publication are reasonably based on the risk of re-offending. Defendants argue they should be given the opportunity to prove they are no longer dangerous and therefore should not be subject to the publication provisions of the Act. In response, the State argues that the ex post facto principles would not apply in this instance because the purpose of the Act is regulatory, rather than punitive. In response to the due process challenges raised, the State argues that due process was afforded to the defendants at the time of their convictions for the sexual offenses. The State contends the convictions are not being protested and any consequence flows from the criminal conduct.

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