The specific issue to be addressed in this case is:
Did the Circuit Court of Cabell County exceed its authority by denying the West Virginia Real Estate Appraiser Licensing and Certification Board’s motion to dismiss and continuing to conduct proceedings in Cabell County even though the Board is arguably a state agency entitled to the special venue provisions of West Virginia Code § 14-2-2?
A more general issue that this case will address is:
When is a board, agency, or other entity considered the “state” for purposes of the statute requiring all cases against the state to be brought in Kanawha County?
This began as a disciplinary proceeding against Respondent, David Bunch, as a result of his real estate appraisal practices. Respondent then brought suit against the West Virginia Real Estate Appraiser Licensing and Certification Board in Cabell County, West Virginia to prevent the proceeding from going forward. The Board moved to dismiss, claiming that it was a state agency and that any suit against it had to be brought in Kanawha County. The trial court denied the motion. The Board then requested a writ of prohibition from the West Virginia Supreme Court.
The Petitioner, the West Virginia Real Estate Appraiser Licensing and Certification Board (hereinafter referred to as “the Board”), argues that the Board is entitled to the special venue provision of West Virginia Code § 14-2-2 which requires that any lawsuit against a state agency must be filed and litigated in the Circuit Court of Kanawha County. Under this provision, no other county is an appropriate venue.
In support of its argument that the Board is a state agency, Petitioners cite to the factors set forth in Blower v. West Virginia Educational Broadcasting Authority, 182 W.Va. 528, 389 S.E.2d 739 (1990). Blower requires the Court to examine the legislative framework of the particular entity, agency, or organization. Of particular relevance to the determination are whether the legislature created and designed the agency and its governing board. Other factors to be considered are whether the agency operates statewide, whether the agency is dependent on public funding, and whether the agency is required to keep its funds in the state treasury. The Board claims that it qualifies as a “state agency” because it meets all of these factors except one. The Board argues that the fact that it does not rely on state funding, and is a “self supporting entity,” should not disqualify it from status as a state agency where the other factors are present.
If the Board is, in fact, a state agency as it claims to be, then it argues that a writ of prohibition is warranted. In support of this argument, the Board cites to prior cases in which the Supreme Court of Appeals has issued a writ of prohibition on the grounds that a court has improperly retained a case which should have been brought only in Kanawha County under the special venue provisions of West Virginia Code § 14-2-2.
In his two page response, Respondent David E. Bunch argues that the Board is not a state agency, and therefore the special venue provisions of West Virginia Code § 14-2-2 are inapplicable and the case may properly proceed in the Circuit Court of Cabell County. The Respondent cites the same Blower factors as those proffered by the Petitioners, but relies upon the Court’s interpretation and application of those factors in Mayo v. West Virginia Secondary School Activities Commission, 223 W.Va. 88, 672 S.E.2d 224 (2008). In Mayo, the Court found that the Secondary Schools Activities Commission (SSAC) did not qualify as a “state agency” largely because it did not receive state funding, even where the SSAC’s powers and duties were prescribed by the legislature. The SSAC, like the Board, was funded by membership dues. The Respondent argues that the facts of the instant matter are analogous to Mayo, and that the Court should reach the same conclusion and find that the Board is not a state agency.
The Opinion of the Court will likely shed additional light on the weight to be afforded to each of the various Blower factors in determining whether an entity qualifies as a “state agency” for purposes of the special venue provisions of West Virginia Code § 14-2-2. This could certainly affect the ability of other agencies to successfully argue that lawsuits filed against them may be filed only in Kanawha County.