No. 16-0738 - State of West Virginia ex rel. Pressley Ridge, et al. v. West Virginia 

Department of Health and Human Resources, et al. FILED 

November 17, 2016 

released at 3:00 p.m. 

LOUGHRY, Justice, dissenting: RORY L. PERRY, II CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

The majority unwisely invokes this Court’s “inherent authority” to interject 

itself into a contractual dispute between the respondents, the West Virginia Department of 

Health and Human Resources and its Bureau for Medical Services and Bureau for Children 

and Families (collectively “respondents” or “the Department”), and the petitioners, private 

companies that provide facilities for the residential care and treatment of juveniles in West 

Virginia. While I will continue to act, as I always have, in the best interests of the children 

in our state, mandamus relief is unwarranted in this instance. Accordingly, I am impelled to 

dissent. 

To be sure, this matter is essentially a contractual dispute involving changes 

to the reimbursement of youth residential services under an amendment to the State Medicaid 

Plan. As the circuit court aptly recognized in its order denying the petitioners’ request for 

injunctive relief:1 

The discretion to contract on behalf of the State lies in 

the executive branch. West Virginia law vests the Secretary [of 

1

The petitioners did not appeal the circuit court’s order. Having enjoyed a test run 

before the circuit court, and evading appellate review of their unsuccessful attempt to obtain 

injunctive relief, the petitioners now seek a writ of mandamus in this Court. 

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the Department] with the sole authority and discretion to 

contract in the name of the Department on the State’s behalf. 

Specifically, State law authorizes the Secretary to “[s]ign and 

execute in the name of the state by the State Department of 

Health and Human Resources any contract or agreement with 

the federal government or its agencies, other states, political 

subdivisions of this state, corporations, associations, 

partnerships or individuals[.]” W.Va. Code § 9-2-6(4). Yet 

Petitioners ask this Court to disregard that authority and instead 

commandeer the Department’s executive authority to contract 

for residential treatment services without identifying how the 

Department has purportedly violated the law. Such an 

injunction would clearly violate the separation of powers 

between the executive and the judiciary.2 

Nonetheless, the petitioners have managed to create a quagmire of speculation that juveniles 

being housed in these residential facilities will be harmed under the respondents’ new 

provider agreements, absent the respondents’ promulgation of new or revised legislative 

rules. They do so as a means of attacking what is within the sole prerogative of the executive 

branch: administration of the state Medicaid program. Again, as the circuit court found: 

This interference in executive discretion is amplified 

because Petitioners are also asking this Court to interfere with 

the Department’s authority in administering the West Virginia 

Medicaid program. Medicaid is a federal-state partnership, and 

federal law requires each state to designate a “single state 

agency” to operate their respective Medicaid programs. 42 

U.S.C. § 1396a(a)(5). That entity in West Virginia is the Bureau 

for Medical Services. W.Va. Code §§ 9-1-2(n) & 9-2-13(a)(3). 

Critically, federal law prohibits the designated single state 

2

See W.Va. Const. art. V, § 1 (“The legislative, executive and judicial departments 

shall be separate and distinct, so that neither shall exercise the powers properly belonging to 

either of the others; nor shall any person exercise the powers of more than one of them at the 

same time[.]”). 

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agency delegating its authority to “issue policies, rules, and 

regulations on program matters,” 42 C.F.R. § 431.10. Yet 

Petitioners are asking this Court to interfere in the Department’s 

administration of the Medicaid program and place the decision 

of how providers are to be reimbursed with the providers 

themselves. Simply put, Petitioners cannot command such 

interference in the Medicaid program. 

(Footnote added.). 

The petitioners have presented this Court with myriad assertions concerning 

the interplay between various new policies and existing statutory and regulatory law. 

Critically, however, the petitioners have utterly failed in their burden to show a clear legal 

right to the relief they seek: a writ compelling the respondents to engage in legislative rulemaking prior to implementation of the new policies/contracts. See Syl. Pt. 2, State ex rel. 

Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970) (citation omitted) (“‘To entitle one 

to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and 

a corresponding duty on the respondent to perform the act demanded.’”). While the 

petitioners have endeavored to mask this monetary, contractual dispute with various 

allegations, such as the potential for risk to the well-being of juveniles placed in their care 

and the potential exclusion of multi-disciplinary teams in placement decisions, the first 

allegation is speculative, at best, and the second was arguably disabused by the Department’s 

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counsel during oral argument.3 Importantly, this Court must be circumspect on matters 

affecting the function of the executive branch of government and must act only upon a 

specific, existing duty that a state officer has violated. Indeed, this Court should not issue 

a writ in anticipation of some theoretical omission of duty. 

Although the majority relies upon this Court’s decision in E.H. v. Matin, 168 

W.Va. 248, 284 S.E.2d 232 (1981), as support for invoking this Court’s “inherent powers” 

and granting a moulded writ, the case at bar is nothing like Matin. In Matin, a group of 

patients filed a mandamus action in this Court, alleging they were “confined as mental 

patients in Huntington State Hospital under conditions which violate W.Va. Code, 27-5-9 

[1977] which accords all patients a right to both humane conditions of custody and 

therapeutic treatment.” Matin, 168 W.Va. at 249, 284 S.E.2d at 233. These patients sought 

judicial intervention for the deplorable conditions, which were described as the “‘Dickensian 

Squalor’ of unconscionable magnitudes of West Virginia’s mental institutions.”4 168 W.Va. 

at 249, 284 S.E.2d at 232-33 (internal citation omitted). Unlike Matin, the petitioners are not 

3

During oral argument, when this Court pressed the petitioners’ counsel for a specific 

example of how a particular Department regulation conflicts with a particular provision in 

the new provider agreements, as opposed to the generalized concerns that had been voiced, 

counsel deferred the question to his co-counsel, who was equally unable to provide the Court 

with an adequate response. Surely, the evidentiary hearing ordered by the majority of this 

Court is unnecessary to answer this fundamental question. 

4

In Matin, this Court had the benefit of depositions of hospital staff and experts who 

had evaluated the clinical and custodial program at the hospital. 168 W.Va. at 251, 284 

S.E.2d at 234. 

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a group of juveniles alleging some mistreatment arising out of their involuntary placement 

in the petitioners’ residential facilities; instead, they are companies objecting to the change 

in the method of reimbursement for their provider services. Specifically, rather than 

reimbursing these providers based on a “bundled” rate, as had previously been done, the 

petitioners will be required to bill for medical treatment separately from room, board, and 

supervision under the respondents’ new provider agreements. In short, the instant matter is 

nothing like the deplorable conditions that compelled the Court to act in Matin, where there 

was a clear legislative mandate “for both humane conditions of custody and effective 

therapeutic treatment” in West Virginia Code § 27-5-9 (1977). Matin, 168 W.Va. at 257, 284 

S.E.2d at 237. 

In addition, the majorityexcuses the petitioners’ failure to institute a mandamus 

proceeding in the circuit court, which would have provided them with a record that may or 

may not have supported their arguments. Instead, the majority embraces this fundamental 

failure as the basis for awarding a moulded writ. Not only could the petitioners have 

simultaneously sought mandamus relief in the circuit court when they filed their petition for 

injunctive relief, they could have sought mandamus relief in the circuit court after they were 

denied injunctive relief. In short, this Court should not award mandamus relief to correct 

strategic errors that resulted in the petitioners’ inability to demonstrate a clear legal right to 

the relief they seek. Moreover, and perhaps most importantly, the petitioners are not entitled 

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to relief in mandamus because they have another adequate remedy. See Syl. Pt. 2, in part, 

State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969) (“A writ of 

mandamus will not issue unless three elements coexist . . . (3) the absence of another 

adequate remedy.”). Rather than seeking mandamus relief to avoid what the petitioners 

undoubtedly believe are unfavorable contractual terms, the respondents posit that the 

petitioners 

should simply exercise their contractual right to refuse to sign 

the new provider agreements. That negotiation process has a 

natural give and take. On the one hand, if enough providers 

refuse to sign,5 then the Department will have to bend to their 

terms because the Department needs a certain number of 

providers to give services; on the other hand, if a majority of 

providers sign such that the Department can ensure adequate 

residential services for its children, then the protesting providers 

need to decide whether they can accept the new terms. 

(Footnote added). 

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I recognize there is a great need in this state for qualified, residential facilities where 

circuit courts may place juveniles when that need arises. By the same token, the petitioners 

are in the business of providing those services and, thus, have a strong motivation for 

contracting with the Department to provide those services. In fact, as the respondents point 

out, the majority of residential treatment providers in West Virginia have already signed 

contracts with the Department on these new terms. Out of the twenty-four providers in West 

Virginia, the respondents report that all five emergency shelters have signed contracts, and 

that twelve out of nineteen residential treatment providers have done so, as well. The 

majority does not address whether its decision impacts those signed contracts. 

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Lastly, I am concerned that the majority has essentially directed6 the Juvenile 

Justice Commission to participate in some undefined and unspecified manner in the 

proceeding that the majority orders to be docketed in the circuit court “as if it were an 

original proceeding in mandamus in that court.”7 While I believe that the Juvenile Justice 

Commission serves an important purpose, interjecting itself into this contractual dispute is 

not one of them. 

The Juvenile Justice Commission is charged with “reviewing facilities and 

programs operated or contracted by the Division of Juvenile Services and the Department of 

Health and Human Resources. . . . and look[ing] at strengths, gaps and needs within West 

Virginia’s juvenile justice processes.”8 Although the Commission’s original mission 

statement provides that “[t]hrough collaboration and communication between the Court, the 

Legislature, and the Executive agencies, West Virginia’s investment of energy and resources 

6

Although the majority uses the term “encourage,” the circuit court will most 

assuredly receive the message behind that word, which is that the Juvenile Justice 

Commission and the Commission to Study the Residential Placement of Children should be 

made to participate in the circuit court proceeding. See infra note 7. 

7

The majority also directs another commission, the Commission to Study the 

Residential Placement of Children, to participate in this case. This particular Commission 

is under the auspices of the Department. See W.Va. Code § 49-2-125(b) (Supp. 2016) 

(“There is created within the Department of Health and Human Resources the Commission 

to Study the Residential Placement of Children . . . .”). 

8

http://www.courtswv.gov/court-administration/juvenlie-justice-commission/History. 

html (last visited Nov. 15, 2016). 

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into children who are in trouble will result in the best possible future for the State,”9 said 

mission cannot constitutionally extend into active participation in litigation between 

residential providers and the Department or to taking any action that usurps the sole statutory 

authority of the Department’s Secretary to enter into contracts on behalf of the Department. 

W.Va. Code § 9-2-6(4). Indisputably, the children of this state benefit from cooperation 

among all three branches of government, and while I encourage that cooperation, there is also 

no requirement that the Department seek this Court’s imprimatur on every action taken by 

it. 

For the reasons set forth herein, I respectfully dissent. I am authorized to state 

that Justice Benjamin joins in this separate opinion. 

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http://www.courtswv.gov/court-administration/juvenlie-justice-commission/pdf/ 

Mission%20Statement.pdf (last visited Nov. 15, 2016) 

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