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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2017 Term FILED _______________ 

November 1, 2017 

No. 17-0630 released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

_______________ SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

STATE OF WEST VIRGINIA ex rel.
 

FAIRMONT STATE UNIVERSITY BOARD OF GOVERNORS,
 

Petitioner
 

v. 

THE HONORABLE PATRICK N. WILSON,
 

GALEN HANSEN,
 

ALBERT MAGRO, and
 

WEST VIRGINIA HIGHER EDUCATION POLICY COMMISSION,
 

Respondents
 

Petition for Writ of Prohibition 

WRIT GRANTED 

Submitted: October 17, 2017 

Filed: November 1, 2017 

Patrick Morrissey, Esq. Jerry A. Carbo, Esq.
 

Attorney General Shippensburg, Pennsylvania
 

Dawn E. George, Esq. Counsel for the Respondents,
 

Assistant Attorney General Galen Hanson and Albert Magro
 

Charleston, West Virginia
 

Counsel for the Petitioner Candace Kraus, Esq.
 

West Virginia Higher Education Policy 

Commission 

Charleston, West Virginia 

Counsel for the Respondent, 

West Virginia Higher Education Policy 

Commission 
JUSTICE KETCHUM delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Actions wherein a state agency or official is named, whether as a 

principal party or third-party defendant, may be brought only in the Circuit Court of 

Kanawha County.” Syl. Pt. 2, Thomas v. Bd. of Educ., 167 W.Va. 911, 280 S.E.2d 816 

(1981), disapproved on other grounds by Hansbarger v. Cook, 177 W.Va. 152, 157 n.5, 

351 S.E.2d 65, 70 n.5 (1986). 

2. Under West Virginia Code § 14-2-2a [2004], a lawsuit in which 

West Virginia University or Marshall University is made a party defendant shall be 

brought in the circuit court of any county in which the cause of action arose, unless 

otherwise agreed by the parties. This statutory exception to the general rule that an action 

against a state agency may be brought only in Kanawha County applies exclusively to 

lawsuits against West Virginia University or Marshall University. 

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Justice Ketchum: 

The Fairmont State University Board of Governors (“Fairmont State”) and 

the West Virginia Higher Education Policy Commission (“HEPC”) were sued in the 

Circuit Court of Marion County by some faculty members of Fairmont State. Fairmont 

State and the HEPC filed identical motions to dismiss the lawsuit based on, among other 

things, improper venue. The circuit court denied both motions to dismiss. 

Fairmont State requests that we issue a writ prohibiting the circuit court 

from hearing the lawsuit against it and the HEPC. West Virginia’s venue statutes require 

that the lawsuit against Fairmont State and the HEPC be filed in Kanawha County. The 

circuit court exceeded its legitimate powers by holding otherwise. Therefore, we issue 

the requested writ of prohibition. 

I.
 

FACTUAL AND PROCEDURAL BACKGROUND
 

On March 3, 2017, some faculty members at Fairmont State sued their 

university’s Board of Governors and the HEPC in Marion County Circuit Court. The 

lawsuit alleges that Fairmont State deliberated and decided on public matters in private 

meetings in violation of the West Virginia Open Meetings Act (West Virginia Code §§ 6­

9A-1 to -12 [1975]) and that it did not fully comply with the plaintiffs’ Freedom of 

Information Act request. In addition, the lawsuit alleges that the HEPC failed to exercise 

its oversight responsibility over Fairmont State to prevent it from acting illegally. The 

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faculty members sought injunctive relief, a writ of mandamus, and a declaratory 

judgment. 

Fairmont State and the HEPC filed identical motions to dismiss the lawsuit 

based on, among other things, improper venue. They asserted that, subject to exceptions 

which do not apply in this case, lawsuits against state agencies must be filed in Kanawha 

County. The circuit court denied Fairmont State’s and the HEPC’s motions to dismiss 

and held that Marion County was a proper venue to hear the lawsuit. In response, 

Fairmont State filed its petition for a writ of prohibition with this Court. 

II.
 

STANDARD OF REVIEW
 

We use the following factors to decide whether to grant Fairmont State’s 

requested writ of prohibition: 

In determining whether to entertain and issue the writ 

of prohibition for cases not involving an absence of 

jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will 

examine five factors: (1) whether the party seeking the writ 

has no other adequate means, such as direct appeal, to obtain 

the desired relief; (2) whether the petitioner will be damaged 

or prejudiced in a way that is not correctable on appeal; (3) 

whether the lower tribunal’s order is clearly erroneous as a 

matter of law; (4) whether the lower tribunal’s order is an oft 

repeated error or manifests persistent disregard for either 

procedural or substantive law; and (5) whether the lower 

tribunal’s order raises new and important problems or issues 

of law of first impression. These factors are general 

guidelines that serve as a useful starting point for determining 

whether a discretionary writ of prohibition should issue. 

Although all five factors need not be satisfied, it is clear that 

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the third factor, the existence of clear error as a matter of law, 

should be given substantial weight.1 

Furthermore, we have noted that a writ of prohibition may be used to preclude a circuit 

court from hearing a lawsuit against a state agency when it does not have venue.2 

III.
 

ANALYSIS
 

Fairmont State and the HEPC argue that Marion County is not a proper 

venue for the lawsuit filed against them. Venue for lawsuits against state agencies is 

controlled by West Virginia Code § 14-2-2 [1976], which, in pertinent part and with 

emphasis added, provides: “(a) The following proceedings shall be brought and 

prosecuted only in the circuit court of Kanawha County: (1) Any suit in which . . . a state 

agency is made a party defendant.” Likewise, this Court has held: “Actions wherein a 

state agency or official is named, whether as a principal party or third-party defendant 

may be brought only in the Circuit Court of Kanawha County.”3 Syl. Pt. 2, Thomas v. 

1 Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 

(1996) (footnote added). 

2 See, e.g., State ex rel. W.Va. Real Estate Appraiser Licensing & Cert. Bd. 

v. Chiles, 234 W.Va. 125, 128, 763 S.E.2d 663, 666 (2014) (granting state agency’s writ 

of prohibition on ground that Kanawha County was only proper venue for plaintiff’s 

lawsuit against it); State ex rel. Stewart v. Alsop, 207 W.Va. 430, 435, 533 S.E.2d 362, 

367 (2000) (“This Court has previously utilized a writ of prohibition to preclude a trial 

court from proceeding to hear a case where venue was improper under [West Virginia’s 

state agency venue statutes].”); State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W.Va. 662, 

669, 434 S.E.2d 22, 29 (1993) (same). 

3 See also, Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer,
 

Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(3) at 370 (4th ed.
 

(continued . . .)
 

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Bd. of Educ., 167 W.Va. 911, 280 S.E.2d 816 (1981) (emphasis added), disapproved on 

other grounds by Hansbarger v. Cook, 177 W.Va. 152, 157 n.5, 351 S.E.2d 65, 70 n.5 

(1986). Indeed: “We have consistently held that the provisions of W.Va. Code § 14-2-2, 

as amended, are exclusive to other venue provisions.”4 

Both Fairmont State and the HEPC fall within the Legislature’s definition 

of a state agency, which is, “a state department, board, commission, institution, or other 

administrative agency of state government.”5 More importantly, the parties do not 

dispute that Fairmont State and the HEPC are state agencies. Therefore, unless an 

exception to the venue statute applies, West Virginia Code § 14-2-2 requires that the 

lawsuit filed against Fairmont State and the HEPC be brought in Kanawha County. 

Despite the clear directive of West Virginia Code § 14-2-2, the circuit court 

found that venue was proper in Marion County under West Virginia Code § 14-2-2a 

[2004]. Section 14-2-2a is limited to lawsuits against West Virginia University and 

Marshall University; it provides, with emphasis added, that: 

(a) Notwithstanding the provisions of section two of 

this article [Section 14-2-2], any civil action in which . . . 

West Virginia University . . . is made a party defendant, shall 

2012) (“Pursuant to W.Va. Code § 14-2-2, actions wherein a state agency or official is 

named, whether as a principal party or third-party defendant, may be brought only in the 

circuit court of Kanawha County.”). 

4 Vance v. Ritchie, 178 W.Va. 155, 157, 358 S.E.2d 239, 241 (1987). 

5 W.Va. Code § 14-2-3 [1967] (emphasis added). In 2017, the Legislature 

amended this statute in ways which do not affect this appeal. 

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be brought in the circuit court of any county wherein the 

cause of action arose, unless otherwise agreed by the parties. 

(b) Notwithstanding the provision of section two of 

this article [Section 14-2-2], any civil action in which 

Marshall University . . . is made a party defendant, shall be 

brought in the circuit court of any county wherein the cause 

of action arose, unless otherwise agreed by the parties. 

The circuit court conceded in its order that the plain language of Section 

14-2-2a mentions only West Virginia University and Marshall University. However, the 

circuit court’s order continued: “It logically follows that actions against other universities 

not specifically named in the statute should also be tried in the county in which the action 

occurred. This argument is the most compelling and the one on which this Court’s 

decision as to venue primarily turns.” In short, the circuit court extended Section 14-2-2a 

to Fairmont State because it could think of no reason why the Legislature would treat 

Fairmont State differently than West Virginia University or Marshall University. 

We have repeatedly held that courts must not “arbitrarily . . . read into a 

statute that which it does not say. Just as courts are not to eliminate through judicial 

interpretation words that were purposely included, we are obliged not to add to statutes 

something the Legislature purposely omitted.”6 And because “the express mention of 

one thing implies the exclusion of another[,]” we must presume that the Legislature 

6 Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 

(2013). See also, Int’l Union of Operating Eng’rs v. L.A. Pipeline Constr. Co., 237 

W.Va. 261, 266, 786 S.E.2d 620, 625 (2016); W.Va. Bd. of Educ. v. Marple, 236 W.Va. 

654, 662, 783 S.E.2d 75, 83 (2015); Young v. Apogee Coal Co., LLC., 232 W.Va. 554, 

561 753 S.E.2d 52, 59 (2013); Phillips v. Larry’s Drive-In Pharmacy, Inc., 220 W.Va. 

484, 491, 647 S.E.2d 920, 927 (2007). 

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purposely omitted Fairmont State from Section 14-2-2a based on its express mention of 

West Virginia University and Marshall University.7 Indeed, Section 14-2-2a is plain and 

unambiguous, so it must be applied, not interpreted or construed.8 

We hold that under West Virginia Code § 14-2-2a [2004], a lawsuit in 

which West Virginia University or Marshall University is made a party defendant shall 

be brought in the circuit court of any county in which the cause of action arose, unless 

otherwise agreed by the parties. This statutory exception to the general rule that an action 

against a state agency may be brought only in Kanawha County applies exclusively to 

lawsuits against West Virginia University or Marshall University. Neither West Virginia 

University nor Marshall University were made parties to this lawsuit. Therefore, Section 

14-2-2a does not apply to this case. 

Having established that West Virginia Code § 14-2-2a does not apply to 

this lawsuit, we address another statute the circuit court relied on to conclude that Marion 

County was a proper venue. The faculty members’ lawsuit alleges, in part, that Fairmont 

State violated West Virginia’s Open Meetings Act set out in West Virginia Code § 6-9A1 to -12 [1975]. Under West Virginia Code § 6-9A-6 [1999], “[t]he circuit court in the 

county where the public agency regularly meets has jurisdiction to enforce [the West 

7 Syl. Pt. 3, in part, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 

(1984). 

8 See Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 

(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to 

be accepted and applied without resort to interpretation.”). 

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Virginia Open Meetings Act] upon civil action[.]”9 The circuit court incorrectly 

presumed that, because it had subject matter jurisdiction over the lawsuit, it had venue as 

well. 

It is well-established that: “The terms ‘venue’ and ‘jurisdiction’ are not 

synonymous.”10 “Jurisdiction is a court’s inherent power to decide a case; venue, 

however, designates the particular county in which a court having jurisdiction may 

properly hear and determine the case.”11 Because “[c]ourts must presume that a 

legislature says in a statute what it means and means what it says there[,]” we decline to 

insert “venue” into Section 6-9A-6 when the Legislature clearly limited the statute to 

“jurisdiction.” The Legislature designated Kanawha County as the proper venue for suits 

against state agencies. 

However, that is not to say that a circuit court outside of Kanawha County 

is always barred from hearing a lawsuit against a state agency for lack of venue. For 

example, the Legislature has enacted exceptions to its rule that state agencies may be 

sued only in Kanawha County, none of which apply here.12 

9 Emphasis added. 

10 Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, supra, § 

12(b)(3) at 363 (citing W. Va. Secondary Sch. Activities Comm’n v. Wagner, 143 W.Va. 

508, 520, 102 S.E.2d 901, 909 (1958) (“There is a distinction between jurisdiction and 

venue and the two terms are not synonymous.”)). 

11 Syl. Pt. 8, Brooke B., 230 W.Va. at 363, 738 S.E.2d at 29. 

12 See, e.g., W.Va. Code § 14-2-2a (pertaining to lawsuits in which West
 

Virginia University or Marshall University are made party defendants); W.Va. Code §
 

(continued . . .)
 

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Furthermore, objections to venue may be waived by the defendant.13 Under 

West Virginia Rule of Civil Procedure 12(h)(1) [1998], “A defense of . . . improper 

venue is waived (A) if omitted from a motion in the circumstances described in 

subdivision (g) [Consolidation of Defenses in Motion], or (B) if it is neither made by 

motion under this rule nor included in a responsive pleading or an amendment thereof[.]” 

Put simply, “[o]rdinarily, [a defendant’s] failure to object specifically to venue before 

pleading to the merits constitutes waiver of the objection.”14 

When a state agency that is made a defendant in a lawsuit filed outside of 

Kanawha County fails to object to venue, and thereby waives its objection to venue, the 

circuit court in which the lawsuit was filed has subject matter jurisdiction to enforce the 

West Virginia Open Meetings Act under Section 6-9A-6. Because Fairmont State and 

the HEPC raised improper venue in their motions to dismiss, it is undisputed that they did 

not waive their objection to venue. Therefore, the circuit court erred by relying upon 

Section 6-9A-6 to find that Marion County was a proper venue for this lawsuit.15 

14-2-2(b) (pertaining to lawsuits seeking injunctive relief for government taking of real 

property). 

13 See State ex rel. Kenamond v. Warmuth, 179 W.Va. 230, 233, 366 S.E.2d 

738, 741 (1988) (“Unlike jurisdiction, . . . venue may be conferred by consent or 

waiver[.]”). 

14 Hansbarger, 177 W.Va. at 157, 351 S.E.2d at 71. 

15 Before we dispose of this case, we note that Fairmont State and the 

HEPC asserted an additional ground for its requested writ of prohibition. They claim that 

West Virginia Code § 55-17-3(a)(1) [2008] required the plaintiffs to give them thirty 

days presuit notice before filing their complaint, and that the Plaintiffs failed to do so. 

(continued . . .) 

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IV.
 

CONCLUSION
 

The lawsuit filed against Fairmont State and the HEPC must be filed in the 

Circuit Court of Kanawha County. Therefore, the circuit court exceeded its legitimate 

powers by holding that venue for this lawsuit is proper in Marion County. 

Writ Granted. 

Because we grant Fairmont State’s requested writ of prohibition on grounds of venue, we 

decline to address the issue of presuit notice. 

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