[Link to
GCH-0015](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0015LOPS.doc)

[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

Legal Opinion: GCH-0043

Index: 2.245

Subject: PH Due Process Determination: West Virginia

February 20, 1992

HUD DUE PROCESS DETERMINATION

for the

STATE OF WEST VIRGINIA

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of West Virginia Eviction Procedures.

IV\. Analysis of West Virginia Eviction Procedures for

Each of the Regulatory Due Process Elements.

V. Conclusion.

ANALYSIS

I. Jurisdiction: West Virginia

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of l937

(42 U.S.C. 1437d(k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency or any drug-related criminal activity on or near such

premises, the agency may . . . exclude from its grievance

procedure any such grievance, in any jurisdiction which

requires that prior to eviction, a tenant be given a hearing

in court which the Secretary determines provides the basic

elements of due process . . . .

The statutory phrase \"elements of due process\" is defined by

HUD at 24 CFR 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

WEST VIRGINIA: DUE PROCESS DETERMINATION

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of West Virginia to determine

if eviction procedures under those laws require a hearing with

all of the regulatory \"elements of due process,\" as defined in

966.53(c).

HUD finds that the requirements of West Virginia law

governing an action for unlawful detainer (W.Va. Code, Chapt. 55,

Article 3) or an action for wrongful occupation (W.Va. Code,

Chapt. 55, Art. 3A-1) include all of the elements of basic due

process, as defined in 24 CFR 966.53(c). This conclusion is

based upon requirements contained in the West Virginia

Constitution, Code, case law and court rules.

III\. Overview of West Virginia Eviction Procedures

A. Eviction Procedures

In West Virginia, a landlord may evict a tenant by:

\(1\) an action for unlawful detainer. W.Va. Code,

Chapt. 55, Article 3, or

\(2\) a summary eviction action for wrongful occupation of

residential property. W.Va. Code, Chapt. 55, Art.

3A-1.1

1A landlord may also evict by bringing an action for

ejectment. W.Va. Code 55-4-1 et seq. Dispossession by an

action for ejectment is not considered in this due process

determination.

2

WEST VIRGINIA: DUE PROCESS DETERMINATION

B. Jurisdiction

A tenant may be evicted by an action for unlawful detainer,

or by a summary eviction action for wrongful occupation. Either

form of action may be brought in the Magistrate Court or the

Circuit Court. W.Va. Code 55-3-1 (unlawful detainer);

55-3A-1(a) (summary eviction). If brought in the Magistrate

Court, either form of action may be removed to the Circuit Court

if more than \$300 is involved. W.Va. Code 50-8-4.

C. Action for Unlawful Detainer

An action for unlawful detainer is brought under the West

Virginia Code Chapter 55, Article 3. W. Va. Code 55-3-1 states

that:

If any forcible or unlawful entry be made upon any land,

building, structure, or any part thereof, or if, when the

entry is lawful or peaceable, the tenant shall detain the

possession of any land, building, structure, or any part

thereof after his right has expired, without the consent of

him who is entitled to the possession, the party so turned

out of possession . . . may within three years after such

forcible or unlawful entry, or such unlawful detainer, sue

out of the clerk\'s office of the circuit court, or any court

of record empowered to try common-law actions . . . .

In addition, W.Va. Code 37-6-19 states that:

any person who shall have the right of re-entry into the

lands by reason of rent issuing thereout being in arrear, or

by reason of the breach of any covenant or condition, may

. . . commence an action of unlawful detainer.

A landlord initiates an action for unlawful detainer in

Magistrate Court or Circuit Court with a summons and complaint.

Return must be within ninety days of the summons. The summons

and complaint must be served on the tenant at least 10 days

before the return day. The case must be heard by a jury. W.Va.

Code 55-3-3.

D. Summary Eviction Proceeding for Wrongful Occupation of

Residential Rental Property

A summary eviction proceeding is brought pursuant to the

West Virginia Code Chapter 55, Article 3A. W.Va. Code

55-3A-1(a) states that a \"person desiring to remove a tenant

from residential rental property may apply for such relief to the

3

WEST VIRGINIA: DUE PROCESS DETERMINATION

magistrate or the circuit court of the county in which such

property is located . . . .\" 2

The landlord obtains from the court a time and place for a

hearing, and serves on the tenant a verified petition which

states the time of the hearing. The time of hearing must not be

less than five nor more than ten judicial days following the

landlord\'s request for a hearing date.

E. Applicable Rules

Actions in the Magistrate Court are governed by the rules of

Civil Procedure for the Magistrate Courts of West Virginia

(Magistrate Rules). Magistrate Rule 1.

Actions in the Circuit Court are governed by the West

Virginia Rules of Civil Procedure for Trial Courts of Record

(R.C.P.). R.C.P. 1, 81.

The West Virginia Rules of Evidence (R.E.) govern

proceedings in the courts of the State. R.E. Rule 101.

F. West Virginia Constitution: Due Process Clause

The West Virginia Constitution guarantees due process.

Article 3, 10 provides that \"no person shall be deprived of

life, liberty or property without due process of law and the

judgment of his peers.\" Evictions in West Virginia are subject

to the due process clause of the State Constitution.

2 W. Va. Code 50-4-8 provides a right to remove a case

from the Magistrate Court to the Circuit Court if more than

\$300.00 is \"involved.\" In State ex rel Strickland, 318 S.E.2d

627, 632 (1984), the court held that \"magistrate courts have

initial jurisdiction over unlawful detainer cases regardless of

the amount in controversy, but removal to circuit court is a

matter of right if the case involves more than \$300.\" Magistrate

Rule 12 provides that:

Unless good cause is shown as to why such requirements

should be excused, the following motions and requests,

if made, shall be made in writing and shall be filed

with the court and served upon all parties not less

than 7 days before the first date scheduled for trial:

\(1\) Removal to Circuit Court . . . .

4

WEST VIRGINIA: DUE PROCESS DETERMINATION

Decisions of West Virginia courts indicate that the due

process clause of the West Virginia Constitution gives identical

if not more extensive rights than the Federal due process clause.

State v. Bonham, 317 S.E.2d 501 (1973); Harris v. Calendine, 233

S.E.2d 318 (1977). Decisions of the Supreme Court of Appeals

have held that due process includes the elements of notice

(Sisler v. Hawkins, 217 S.E.2d 60 (1975)), a right to be heard

(Bowen v. Flowers, 184 S.E.2d 611 (1971)), the opportunity to

prepare an adequate defense (Simpson v. Stanton, 193 S.E. 64

(1937)), and the right to assert available defenses (State v.

Ruthbell Coal Co., 56 S.E.2d 549 (1949)).

IV\. Analysis of West Virginia Eviction Procedures for Each of

the Regulatory Due Process Elements

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

In both the Magistrate and Circuit Courts, a civil action is

commenced by filing a complaint with the court. The complaint

must contain a short and plain statement of the claim showing

that the plaintiff is entitled to relief. Magistrate Rule 2;

R.C.P. 3.

Under 55-3A-1, a summary eviction proceeding for wrongful

occupation of residential property is initiated by filing a

\"petition\" (which apparently constitutes the complaint in the

special proceeding). The petition includes a short statement of

the facts and the nature of the landlord\'s claim as well as an

identification of the tenant and the property. At a minimum,

W.Va. Code 55-3A-1(a)(3) requires a written allegation that:

the tenant is in arrears in the payment of rent, has

breached a warranty or a leasehold covenant, or has

deliberately or negligently damaged the property or

knowingly permitted another person to do so . . . .

The summons and complaint must be served on the defendant.

Magistrate Rule 3; R.C.P. Rule 4. Requirements for service of

process are the same in the Magistrate and Circuit Courts.

(Magistrate Rule 3 requires service of the summons and complaint

upon the defendant in the same manner as provided by R.C.P.

Rule 4.)

Rule 4 of the R.C.P. states that service of process shall be

made upon a defendant by delivering a copy of the summons

personally to the defendant; or by delivering a copy of the

5

WEST VIRGINIA: DUE PROCESS DETERMINATION

summons and complaint at the defendant\'s dwelling house or usual

place of abode to a member of the defendant\'s family above the

age of sixteen years and giving to such person information of the

purpose of the summons and complaint. Substitute service may

also be had by sending a copy of the complaint and summons by

registered or certified mail, return receipt requested and

delivery restricted to the addressee.

Adequate notice of the grounds for termination is required

by the due process clause of the West Virginia Constitution.

Article 3, 10. Due process requires notice as a prerequisite

to action in a court. Sisler v. Hawkins, 217 S.E.2d 60 (1975).

Notice need not be personal to meet the constitutional mandate,

but it must be carried out by some method established by law.

Harloe v. Harloe, 38 S.E.2d 362 (1946). Posting alone is

insufficient notice in a landlord-tenant action brought in

Magistrate Court. State ex rel. Thomas v. Neal, 299 S.E.2d 23,

25 (1982). While actual notice is not an absolute prerequisite

to jurisdiction, the lack of it may justify setting aside a

summary judgment. Cordell v. Jarrett, 301 S.E.2d 227, 229

(1982).

Adequate notice is guaranteed to the tenant under West

Virginia State law.

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

W.Va. Code 50-4-4 provides that any party to a civil

action in Magistrate Court may appear and conduct the action by

an attorney. This provision was not superseded by promulgation

of the Magistrate Rules (1988). See Magistrate Rule 1. Various

provisions of the Magistrate Rules refer to counsel, and imply

that a litigant in Magistrate Court may elect to be represented

by counsel. For example, Rule 8(b) refers to service \"upon a

party represented by an attorney of record.\" See also, Rule 9(b)

(certificate of service \"by the attorney\"), Rule 14(c) (service

of subpoena by an attorney), Rule 16(d) (parties not represented

by counsel).

The Circuit Court is a record court in which parties are

normally represented by counsel. R.C.P. Rule 5. See, Brewster

v\. Hines, 185 S.E.2d 513 (1971) (notice to an attorney for a

party is effective as notice to the party). Many provisions of

the R.C.P. refer to the role of counsel, and assume therefore

that parties in Circuit Court have the right to be represented by

counsel.

6

WEST VIRGINIA: DUE PROCESS DETERMINATION

The right to representation by counsel is guaranteed by the

due process clause of the State Constitution. Article 3, 10.

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

The West Virginia Rules of Evidence (W.V.R.E.) govern

proceedings in the State courts. W.V.R.E. Rule 101. The W.V.R.E.

are geared to promote the development of the law of evidence in

order to attain the truth in a judicial proceeding.

W.V.R.E. Rule 102.

The court must determine the qualifications of a person to

be a witness and the admissibility of evidence based on the

court\'s determination of relevance. W.V.R.E. Rule 104(a). A

party may present relevant evidence before the jury. W.V.R.E.

Rule 104(e). Generally, all relevant evidence is admissible

unless limited by constitutional requirements, by statute or by

court rules. W.V.R.E. Rule 402. Relevant evidence may only be

excluded if probative value of the evidence is substantially

outweighed on grounds of prejudice, confusion, or waste of time.

W.V.R.E. Rule 403.

Generally, every person is deemed competent to be a witness

unless specifically disqualified due to prescribed incapacities

outlined in W.V.R.E. Rule 601(a), (b). Except for opinion

testimony by expert witnesses, a witness must have personal

knowledge of the matter. W.V.R.E. Rule 602. The West Virginia

Rules of Civil Procedure (R.C.P.) provides that the testimony of

witnesses must be taken orally in open court (unless otherwise

provided by the R.C.P., the W.V.R.E., or other rules adopted by

the Supreme Court of Appeals). R.C.P. Rule 43(a).

At a trial or hearing, a pretrial deposition may only be

used against a party who had the opportunity to be present at the

taking of the deposition. R.C.P. Rule 32(a). Any deposition may

be used by a party to contradict or impeach the testimony of the

deposed witness. R.C.P. Rule 32(a)(1). At the taking of a

deposition, the witness may be cross-examined in the same manner

as permitted at trial. R.C.P. Rule 30(c). A deposition may only

be used at trial in specific and restrictive circumstances stated

in the rules. R.C.P. Rule 32(a). Provisions which allow the use

of a deposition at trial under \"exceptional circumstances\" note

the importance of presenting the testimony of witnesses orally in

open court. R.C.P. Rule 32(a)(3).

7

WEST VIRGINIA: DUE PROCESS DETERMINATION

Under the West Virginia rules, a party has the opportunity

to confront and cross-examine witnesses for the opposing party.

The Magistrate Rules require that the trial must \"be conducted by

the examination and cross-examination of witnesses under oath or

affirmation, and in accordance with the West Virginia Rules of

Evidence.\" Magistrate Rule 16(a). A witness may be cross-

examined on any matter relevant to issues in the case, including

credibility. W.V.R.E. Rule 611(b). Ordinarily, leading

questions are permitted on cross-examination of an adverse

witness. W.V.R.E. Rule 611(c).

The defendant-tenant may seek to refute the credibility of

the plaintiff\'s witness. The credibility of a witness may be

impeached by any party. W.V.R.E. Rule 607. The credibility of a

witness may be attacked by evidence of the witness\' reputation

for untruthfulness. W.V.R.E. Rule 608(a). Credibility of a

witness may also be attacked by evidence of a prior conviction of

a crime which involved dishonesty or was punishable by death or

imprisonment in excess of one year. W.V.R.E. Rule 609. A

witness may be examined concerning a prior statement. W.V.R.E.

Rule 613.

A party has a right to inspect writings or recorded

statements utilized in court by the adverse party. W.V.R.E. Rule

106\. This allows the tenant-defendant the opportunity to refute

such evidence presented by the PHA.

A defendant tenant has the right to present evidence and

witnesses to refute the case presented by the PHA, subject to

reasonable judicial control as to the method of interrogating

witnesses and of presenting evidence on direct and cross-

examination. W.V.R.E. Rule 611(a). The defendant may use a

subpoena to command attendance of witnesses or production of

documentary evidence. Magistrate Rule 14; R.C.P. Rule 45.

The West Virginia rules give a defendant-tenant a full

opportunity to defend against and refute the PHA\'s evidence,

including the right to confront and cross-examine witnesses.

In addition, the due process clause of the West Virginia

constitution grants a party the opportunity to refute evidence

and to cross examine witnesses. West Virginia Constitution

Art. 3, 10. The opportunity to be heard is an essential

ingredient of the due process guaranteed by Article 3, 10 of

the West Virginia Constitution. Bowen v. Flowers, 184 S.E.2d 611

(1971); Staley v. Hereford, 45 S.E.2d 738 (1947); accord, Cordell

v\. Jarrett, 301 S.E.2d 227, 230 (1982).

8

WEST VIRGINIA: DUE PROCESS DETERMINATION

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

( 966.53(c)(4))

For an eviction action in Magistrate Court, the Magistrate

Rules provide that \"the failure of the defendant to state a

particular defense in an answer shall not prevent the defendant

from raising such defense at trial.\" Magistrate Rule 4(d). The

defendant may file supplemental pleadings \"asserting claims or

defenses which have arisen since the date of the pleading\" on

terms as may be just. Magistrate Rule 7.

The R.C.P. are applicable to an eviction action in Circuit

Court. The R.C.P. provide for one form of action, known as a

\"civil action,\" and abolish procedural distinctions between

actions at law or in equity. R.C.P. Rule 2. The R.C.P. provide

that a party shall \"state in short and plain terms his defenses

to each claim asserted.\" R.C.P. Rule 8(b). In answering the

complaint, the defendant must set forth affirmatively any matter

\"constituting an avoidance or affirmative defense.\" R.C.P. 8(c).

If a responsive pleading is required, the defendant may assert

\"every defense, in law or fact\" by pleading or by motion. R.C.P.

Rule 12(b). No defense or objection is waived by being joined

with one or more other defenses or objections in a responsive

pleading or motion. R.C.P. Rule 12(b). If a responsive pleading

to a claim is not required, the defendant may assert at trial

\"any defense in law or in fact.\" R.C.P. Rule 12(b).

In an unlawful detainer or summary eviction action, in

Magistrate Court or in Circuit Court, the applicable court rules

give a tenant the opportunity to present any available

affirmative legal or equitable defense which the tenant may have.

Cf. Warren v. Thompson, 160 S.E. 297 (1930). The West Virginia

Supreme Court of Appeals has been solicitous in preserving a

tenant\'s rights to present meritorious defenses in an expedited

unlawful detainer action. Cordell v. Jarrett, 301 S.E.2d 227,

231 (1982). The summary eviction statute provides that a tenant

\"may assert any and all defenses which might be raised in an

action for ejectment or an action for unlawful detainer.\" W.Va.

Code 55-3A-2. Since the court rules allow all available

defenses in an unlawful detainer action, tenant may also raise

such defenses against an action for summary eviction.

Due process under the State Constitution includes the right

to assert available defenses. Article 3, 10; State v. Ruthbell

Coal Co., 56 S.E.2d 549 (1949).

9

WEST VIRGINIA: DUE PROCESS DETERMINATION

The West Virginia Constitution, statutes and court rules

permit a tenant to raise any available equitable or legal defense

against the owner\'s action for eviction.

E. A decision on the merits ( 966.53(c)(5))

The incidents of the West Virginia rules of civil procedure

and evidence are designed to lead to a decision on the merits \--

a determination based on the law and the facts. The Rules of

Evidence must be construed \"to the end that the truth may be

ascertained and proceedings justly determined.\" W.V.R.E.

Rule 102. Similarly, the Civil Procedure Rules for an action in

Circuit Court \"shall be construed to secure the \"just . . .

determination of every action.\" R.C.P. Rule 1. The purpose of

the Magistrate Rules is also to \"help resolve cases in a just

. . . manner.\" Magistrate Rule 1.

For an action in Magistrate Court or Circuit Court, issues

of fact may be tried to the court or to a jury. Magistrate

Rule 16; R.C.P. Rules 38 and 39. In a jury trial, issues of fact

must be determined by the jury pursuant to instruction of law by

the court. Magistrate Rule 16(c). Issues not demanded for trial

by jury must be tried by the court. R.C.P. Rule 39(b). In

actions tried upon the facts without a jury, the court must find

the facts, state conclusions of law, and direct entry of the

appropriate judgement. R.C.P. Rule 52. Whether the facts are

determined by the court or by the jury, the decision must be

based upon the law as applied to the facts determined from the

evidence. At completion of the case, the court must \"grant the

relief to which the party in whose favor it is rendered is

entitled.\" R.C.P. Rule 54(c). The court may set aside a

judgment if the jury\'s verdict cannot be supported by the

evidence, or there was a material mistake in application of the

law. Magistrate Rule 17(d). The court may consider modifying or

disturbing a judgment if refusal to take such action would be

inconsistent with substantial justice. R.C.P. Rule 61. The

foregoing provisions of the Magistrate and Circuit Court Rules

indicate that the court must render a judgment upon the merit of

the case \-- based on the facts and the law.

A decision on the merits is also required by the due process

clause of the West Virginia State Constitution. Article 3, 10.

10

WEST VIRGINIA: DUE PROCESS DETERMINATION

V. Conclusion

West Virginia law governing an action in the Magistrate

Court or Circuit Court for unlawful detainer (W.Va. Code,

Chapt. 55, Article 3) or for wrongful occupation (W.Va. Code,

Chapt. 55, Art. 3A-1) requires that the tenant have the

opportunity for a pre-eviction hearing in court which provides

the basic elements of due process as defined in 24 CFR

966.53(c) of the HUD regulations.

By virtue of this due process determination under section

6(k) of the U.S. Housing Act of l937, a PHA in West Virginia may

evict a public tenant by judicial action for unlawful detainer or

summary action for wrongful occupation for any criminal activity

that threatens the health, safety, or right to peaceful enjoyment

of the premises of other tenants or employees of the PHA or any

drug related criminal activity on or near the premises, and is

not required to first afford the tenant the opportunity for an

administrative hearing on the eviction.

11