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Energy and Environment Monitor

West Virginia Supreme Court Slams Class Certification Order from Trial Court Judge Who Stood to Benefit from the Class Action

November 7, 2019

By: Robert G. McLusky

The West Virginia Supreme Court has ruled that a Circuit Court judge should not have decided whether to “certify” a class action in which he was a potential class member. In addition, the Court has vacated the certification order of the Circuit Court as inadequately supported. See State ex rel. Municipal Water Works v Swope, No. 19-0404 (W.Va. Sup. Ct. Oct. 18, 2019).


In March 2019, a group of Wyoming County residents sued their water utility for delivering polluted water that they claimed was both increasing their risks of disease as well as actually causing disease in a smaller sub-group. The group asked the Circuit Court of Wyoming County to “certify” the groups so that they could proceed with a “class action” in which the individually-named plaintiffs were appointed to represent all similarly situated persons.


Judge Warren McGraw, the Circuit Court judge, granted the motion to certify the class, finding that they met all four criteria for certification—that the size of the class makes joinder of all affected individuals impracticable; that the claims of the class members share common legal and factual issues; that the claims of the named individuals are “typical” of the claims of the class as whole; and that the absent or unnamed class members will be adequately represented. 


Soon after certifying the class, however, Judge McGraw asked the State Supreme Court to recuse him from the case in response to a motion from the water provider. The water provider also filed a request for an extraordinary writ in the Supreme Court challenging the class certification order on two grounds—first, that Judge McGraw should have recused himself BEFORE ruling on the class certification; and second, that the class certification order was not supported by an adequate analysis of the four factors used for evaluating certification requests.


Here, the Supreme Court determined that it could exercise its authority to review the class certification order even though it marked only the beginning, and not the end, of the trial court proceedings (normally, appeals courts will review only “final” orders resolving an entire case).  The Court noted that it previously expressed a preference for considering requests for extraordinary relief as to class certification orders rather than awaiting appeals from a full disposition of the merits of the underlying case. For class action practitioners, this signals that the Court’s door is open to review class certification decisions early.


The Supreme Court then ruled that Judge McGraw should never have considered the request for class certification himself because he is a potential class member—the water utility provided water to the Judge’s home and to his workplace at the Circuit Court of Wyoming County. But the Court did not stop there.  It also ruled that the certification order itself, regardless of its authorship, was infirm. It found that Judge McGraw’s certification order was cursory and did not include the type of probing analysis of the four-factor certification test that it laid out in an earlier decision. Accordingly, the Court vacated the certification order and sent the case back to a new judge in the Circuit Court.



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