*1 289 endanger human so as to an automobile drive inclined to reverse for would be life.29 We Virginia of West ex rel. UNITED evidence, STATE which would bar of sufficient lack AMERICA, MINE OF LO WORKERS jeopardy grounds, see on double retrial Bender, Dana States, CAL UNION V. 437 98 S.Ct. Burks v. U.S. United Dixon, Harris, Frazier, D. Dennis D. (1978); Clarence 1 v. 57 State L.Ed.2d Lloyd, Isner, Jerry (1979), A. Paul G. Donald D. op- 252 S.E.2d 162 W.Va. Payne, Larry evidence, Marco, Pigott, E. I. Mason posed weight Florida, Dwight Riegel, Samples, retrial, v. L. Jimmie G. not bar see Tibbs does Shiflett, 2211, 72 Ronald L. 102 S.Ct. L.Ed.2d James H. Thorne U.S. Wayne Woodall, Petitioners, except for the fact that the State A. opportunity to meet given adequate v. claim as we unconsciousness the defendant’s have outlined it above. WATERS, Judge The Honorable John L. weight of Finally, our conclusion about the County, of Barbour Circuit Court fact that the evidence is buttressed Energy Marketing Company, Inc., a presence of ad evidence of the alcohol was Virginia Corporation, Respon West though the trial court even con mitted dents. temporaneous tests indicated the de blood No. 23838. intoxicated, clearly not and the fendant was jury.30 trial court so instructed the Under Supreme Appeals Court circumstances, marginal relevance these Virginia. West may outweighed of alcohol use have been substantially by potential prejudice its Submitted Jan. 1997. may jury, see W.Va.R.Evid. jury’s On
have obscured the deliberations. Decided 1997. Feb. remand, the trial court should consider more Maynard Dissenting Opinion of Justice carefully balancing under factors 16, 1997. July Virginia and set West Rules Evidence balancing its of the eounterfactors on forth McGinnis,
the record. See State (1994); Arnoldt v. 455 S.E.2d Oil, Inc., 394, 412 Ashland
III. CONCLUSION foregoing, judgment of Based on the County is Court of Pleasants Circuit reversed, this case is remanded for
new trial.
Reversed and Remanded. symp- the accident.” This Court hoi at the time of had suffered from other 29. The defendant vision, he assignment dizziness and blurred but error initially toms such as had not hear this refused to previously experienced a blackout. present appeal. review of the record on Our assignment may have substantial indicates this jury instructed the 30. The trial court merit. influence of alco- defendant "was not under the *4 National Labor Relations
diction Board. parte preliminary in- find that the ex
We junction petitioners’ in violation of issued process rights due should vacated. Additionally, petitioners’ we hold that to set aside motion granted. have We also should been find proceedings record below does support the circuit court’s continued exercise grant in this of its case. We writ as moulded.
I. Background
Facts July 15, respondent Energy On Co., Marketing ('‘Energy Marketing”) Inc. complaint in the Circuit Court of filed *5 naming County, Barbour as defendants Local Mine of 1938 of the United Workers America (“Local 1938”) (the thirteen and individuals1 union local and the individuals collective- “petitioners”). ly referred to as hereinafter (1) alleged: complaint Energy that The Donnelly, Donnelly, & Charles F. Hostler (the below) was Marketing plaintiff in the Charleston, L.C., for Petitioners. process County mining of coal a Barbour Julian, Anderson, Anthony Charles Fair- purchased Marketing had Energy mine that mont, Respondents. for (“Rauer”) Corporation Rauer in a from Coal (the (2) sale; bankruptcy petitioners that the STARCHER, Justice: below) its were Local and defendants formerly employed by who were members prohibition a in which the This is writ Rauer; petitioners and had the and thirteen petitioners, a labor union local harassed, “stopped, and threatened coal members, respon- the prohibit seek to of its by Energy Marketing truck drivers ... hired exercising jurisdic- judge circuit from dent transport its coal to market ...” from ... arising dispute. a labor tion in a case out of mine. the former Rauer case, underlying respondent the In the complaint alleged Energy further preliminary re- The judge issued a remedy at Marketing a law to straining petitioners’ “picket-line” con- was “without the protect respondent its from the economic hard- request at the of the coal business duct of the any petition- ships by the caused the refusal truck company without notice to to fulfill the contracts due to threats judge the a de- drivers Subsequently entered ers. dates, times, places or for judgment against petitioners, the mak- violence.” No fault petitioners’ alleged were further injunction permanent adjudging and the conduct ing the complaint. complaint The damages; judge specified for the petitioners liable the Marketing’s by Energy petitioners’ motion to set had been verified denied the later 13,1996. juris- president July on judgment and to defer aside the default Shiflett, Dixon, Bender, Samples, Riegel, H. G. James V. Dennis D. L. Jimmie Dana Clarence D. 1. Harris, Isner, Lloyd, Jerry Wayne A. Paul G. Donald D. L. A. Woodall. Ronald Thome Marco, Piggott, Payne, Larry Dwight I. Mason E. complaint sought “Temporary July Three The union members were served on against petitioners day signed; Restraining Order” order five [sic]2 were 16; interfering day, July the next “enjoining them from with the served on one was 18; 19; July July transportation of coal served on one on [sic] extradition on one 22; Energy complaint July July 23; The on Marketing. August ...” one and one on 15,1996. money damages also a claim for made “in against petitioners adequate amounts 17, 1996, July petitioners On an filed plaintiff any compensate and all losses practice charge against Energy unfair labor occasion the actions the defen [sic] Marketing the National Labor Relations dants.” (“NLRB”), pursuant Board to the National Act, day complaint On the that the was Labor Relations same U.S.C. Sees. 151-169 15, 1996) Energy (July Marketing’s charge complained filed The [1988]. Taylor County Marketing counsel went cham- had “discriminated in terms respondent judge hiring bers against employees asked the former judge preliminary injunction Company, Rauer to issue Coal based on their con- activity against petitioners. Based on counsel’s certed status union mem- statements,4 respondent judge signed charge pending. bers.” This NLRB is Granting Request for “Order Plaintiff’s Tem- August On about without notice porary Injunction.” petitioners, Energy Marketing ten- July preliminary injunction respondent judge proposed The dered to the judgment order did not contain August was brief. order order.5 On law, respondent or findings signed of fact conclusions or state judge the order. any July its pre- reasons for issuance. The order As with preliminary injunc- liminarily enjoined petitioners order, from “ob- tion the default order did any any structing [Energy findings manner ... Mar- not contain of fact conclusions (other keting’s] property reciting to or from their ... nonappear- access law than interfering *6 petitioners with the [or] extradition and ance of the and the consequent [sic] transportation by of [Energy Energy Marketing coal ... Mar- of judg- entitlement to default.) keting] property by from its ... in any to and ment manner whatsoever.” The stated order that Using same wording July the as the no of required Energy bond would Mar- preliminary injunction order, the Au- keting, gave requiring but no for not reason gust default judgment order made a bond. permanent the petitioners on the restrictions
Subsequently, Energy Marketing cop- preliminarily had which had been ordered. The preliminary injunction ies of judgment the order and default order also ruled that Ener- complaint personally upon gy the Marketing served the was to collect dam- entitled fees, complaint. ages, attorney union in the named members and court costs from the 4. Affidavits submitted 2. 3. The federal court This Federal Rules provide terminology. from those found in the Federal Rules of Civil Virginia counties. county 728, 732, only "preliminary injunctions." Compare Procedure.” Ashland Oil v. Court state that "West opinion respondent circuit for Rules Civil Procedure 65 Virginia’s injunction "temporaiy restraining system. will use the consisting Civil Procedure Energy Marketing’s judge presides West by the of Barbour correct Virginia Kaufman, respondents procedures (1989) West 65(b) over a two- law does not orders," [1960] and Unlike the Virginia counsel [1987]. to this Taylor differ West with but 5.It ly sel telling its contractual as to whether lence made to employees reprisal, rassed, ing circuit clerk complaint. made "irreparable showed also told appears default mine, an oral him and threatened coal truck drivers. Coun- and that had the that one or two that affidavits that the until Energy Marketing’s "proffer" employees harm” if the mine could not obligations. respondent judge judge stopped working there had been threats of vio- August piclceters that there was a likelihood were to the of supporting The record is silent 1996. the Energy Marketing had respondent judge, Energy counsel actual- filed with the out stopped, copy the of fear Market- request meet the ha- of voiding injunction of the the Lastly, required and petitioners. order set October judgment.7 damages hearing on the amount of for a by petitioners Energy to Market- owed Marketing suggested circuit Energy to the ing. any court that deficiencies in the court’s or- fact, including findings the lack of ders — 9, 1996, filed petitioners September On law, conclusions of statement of the counterclaim. The answer answer and an reasoning by or- court’s be cured —could allegations Energy Marketing’s all of denied making pro appropriate der nunc tunc find- threats, harassment, illegal interfer and ings (Energy Marketing’s conclusions. and transportation. petition The coal ence with response to the show cause order issued (1) in tortious ers’ counterclaims included: Energy Marketing that this Court stated had petitioners’ contractual terference petitioners preliminary not noticed the (2) Virginia violations the West rights; injunction application because of insufficient Act, W.Va.Code, et Rights 5-11-1 Human company’s only information —the counsel [1967]; and violations of federal labor seq. names, the union members’ counsel knew Energy Mar upon the refusal of law based petitioners did not know whether would be alleged bargaining to honor collective keting by the represented same counsel who had alia, Invoking, inter West Vir agreements. appeared for the union bank- the Rauer 60(b), ginia Civil Procedure Rules of earlier.) year ruptcy hearing a filed with their answer and coun petitioners hearing At the close of the on October Complaint a “Motion to terclaim Dismiss respondent judge ruled from Injunction Judgment.”6 and Vacate bench, petitioners’ denying the motion to dis- respondent judge On October complaint miss the and vacate the petitioners’ argument on motion heard judgment, summarily con- and default complaint and vacate the default dismiss the jurisdiction cluding that the circuit court’s petitioners’ judgment. The counsel asserted pre-empted The was not the NLRB. entirely petitioners’ picketing judge stayed proceedings court peaceful, argued the circuit court calculate and ascertain the amount of dam- NLRB, be- ages by petitioners should defer to the Market- owed pending charges pre-empt- NLRB ing petitioners appeal cause the to allow to this jurisdiction. peti- Upon petitioners’ for a application ed the circuit Court. alia, contended, granted prohibition, counsel also inter writ of a Rule to tioners’ petitioners of notice on October 1996. On No- the lack Show Cause *7 1996, 30, persons September petitioners threatening injuiy property. Ac- filed a to or 6. On the deferring pro- cordingly, administratively practice charge I am unfair labor with the second ceedings pending pro- the Board further charge Energy before Market- NLRB. This claimed that ceedings Virginia West before the courts. "unlawfully ing prosecuted had maintained and against court former em- a lawsuit in state the petitioners’ counsel also maintained that The Company, ployees Rauer Coal in retaliation 7. Marketing’s request judgment by Energy de- for activity concerted and status as union for their premature untimely, and because 5, 1996, fault had been On the National members.” December process on all of identi- service of the individuals regarding this sec- Labor Relations Board wrote complaint was not in the as union members fied charge, petitioners' ain letter to the ond NLRB 15, August petition- completed The until 1996. counsel: cited State ex rel. Glass Blowers ers’ counsel injunc- appears parte’ that the 'ex While it Silver, S.E.2d 151 W.Va. Association court, by pursuant the state to the tion issued (1967), in which this Court held that service may improperly Employer's lawsuit be read to process on a labor union should be accom- upon impinge jurisdiction of the exclusive plished by naming serving and individual union Board, sufficiently ambiguous also to it is so as representatives the union. Ener- members as may only proscribe Marketing argued be read to conduct one gy that service on all but state, properly regulated by by July completed such member had been Local 1938 23, ingress egress picketing days August blocking prior and and mass than 20 1966—more 1996; appears judiciary Energy Marketing that the state will inde- to dismiss ... it offered judgment against voluntarily the one pendently resolve the between the Na- the default tension August legit- until Labor Relations Act and the state’s union member who not served tional regulate conduct which is 1996. imate interest 15,1996, respondent judge adequately protect process vember issued rights the due reflecting parties a brief written order his enjoined.” earlier of the that are ruling; oral this order did not contain find- To adequate pro assure there is ings of fact or a statement of the court’s process rights tection of due in the issuance reasoning. preliminary injunctions, this Court stated in Ashland Oil: II. Although parte the effect of an ex order
Discussion
granting
preliminary injunction
remains
53-5-8,
§
the same under W.Va.Code
A.
grant
court shall
only
such an
if
Standard
Review
clearly appears
it
specific
from
facts shown
briefly
First we
state the standard
by
by
complaint
affidavit or
verified
Findings
of review.
by
of fact made
loss,
irreparable injury,
immediate and
or
circuit
clearly
court
reviewed under a
damage will
applicant
result to the
before
standard;
respect
erroneous
with
to the con
party
attorney
the adverse
or his
can be
by
court,
clusions of law reached
opposition.
applicant’s
heard in
attor-
review;
apply
we
a de novo standard of
ney
certify
efforts,
must
to the court the
if
issuance,
respect
scope
to the
and terms
any, which
give
have been made to
preliminary injunction,
of a
apply
notice and the reasons supporting any
standard of
abuse
discretion. State
claim that
given.
notice should not be
by
through
Imperial
McGraw v.
Syllabus
Oil,
Point Ashland
Inc. v. Kauf
Marketing, 196 W.Va.
472 S.E.2d man,
(1989).
181 W.Va.
denied, -U.S.-,
cert.
against
foregoing
Measured
Ash-
(1996).
117 S.Ct.
The “reason” advanced Ener- gy Marketing for give prior its failure to B. *8 petitioners notice to the only it knew —that Preliminary Injunction The the picketers wholly “names” of the un- —is examine the pre issuance of the unpersuasive. president reasonable and We liminary injunction in light process of Energy the due of Marketing complaint verified the guarantees in Virginia days the West Energy and United two before Marketing’s counsel Therefore, States Constitutions.8 In Ashland Oil v. days filed the action. at least two 728, Kaufman, 731, 181 W.Va. approaching 384 S.E.2d before respondent the circuit 173, (1) 176 judge, this Court determined that Energy Marketing knew the iden- existing pertaining “[t]he rules tity to issuance of of the union local and full the names of preliminary injunctions Virginia members; West do the named individual union and Const., 3, 10; Const., § 8. W.Va. art. U.S. amend. XIV.
297
(2)
clearly
record
that
legal papers seeking an
Because the
shows
the
prepared
had
Moreover,
petitioners were
their fundamental
injunction
petitioners.
the
denied
against
by
rights
of an
day
complaint
that
the
was
constitutional
the issuance
ex
the
on
same
injunction
parte
against
injunction
preliminary
them
preliminary
the
filed —but after
heard,
an opportunity
without notice or
to be
complaint and the
signed
order was
—the
compliance
the
petitioners
on three of the
and without
with
established
order were served
(and
requirements
safeguards
and
for the
petitioners
the
on the
issuance
on five more of
injunction
parte
of
where such
inescapable
an ex
notice
following day.) The conclusion is
opportunity
given,
is not
we hold
Marketing
given the
that
Energy
could have
injunction may
the
not be enforced and
petitioners
they
notice to which
were
the
Oil,
entitled,
should be vacated.9 See Ashland
181
not to do
but chose
so.
(1989).
728,
provisions of our state and federal constitu
Judgment
The Default
opportunity to be
tions are notice and the
heard,
essential
which are
next
We
address
court’s
any pending proceeding.”
the
court
judg
not to set
the default
decision
aside
Co.,
& H.
Inc. v. International
P.G.
Coal
issue,
addressing
ment.
this
we do not
Union,
America,
Mine Workers
United
petitioners
decide whether service on the
569, 579,
551, 561
390
W.Va.
S.E.2d
23, 1996,
by July
complete
complete
or not
(1988)
quoting
(McHugh,
concurring),
J.
August
therefore wheth
until
1996—and
Chesapeake
System
and Ohio
Federation
Marketing’s
request
er
for a default
Hash,
96, 101
170 W.Va.
294 S.E.2d
judgment
premature.
was or was not
We
Corp. v.
Eastern Associated Coal
Cf.
arguendo
judgment
that the default
assume
Doe,
2, 220
207 n.
John
prematurely; and we
was not entered
hold
(1975) (Failure
give
678 n.
applying
principles
of law
settled
opportunity
may deprive
notice and
defend
grant
should
nevertheless
circuit court
have
jurisdiction); but
court of
Anderson
cf.
petitioners’
motion to vacate
de
ed
Latimer,
Contractors, Inc. v.
Anderson
judgment.
fault
(1979) (Miller, J.,
W.Va.
257 S.E.2d
delay
“A motion to vacate
concurring) (questioning whether
alone
sound
jurisdiction).
judgment
is addressed to the
discre-
can result in a loss
(1)
prelimi-
injunctions
that the
contend
at
Petitioners also contend:
9. Petitioners also
that the
nary injunction is invalid because no motion
they
issue
case are flawed
lack
in this
because
complaint,
Virginia
accompanied
citing
West
terms,
description
specificity
in their
and lack
[1988]; (2)
7(b)(1)
Civil Procedure
Rules of
sought
act or acts
to be re
in detail of the
injunctions
are invalid because
circuit
Oil,
strained,
required by
Ashland
did
set bond or state reasons
not
court
setting
not
at 178. We decline to decide
384 S.E.2d
[1923];
one,
W.Va.Code,
(3)
citing
53-5-9
issue,
ruling.
necessary
this
as it is not
to our
August
filing
supporting affidavits on
that the
However,
by
language
that the
used
observe
entry
of the default
after
prohibiting
court
“interference”
circuit
order,
requirements
Virginia
West
violated
any
coal ...
what
[I960];
the "extradition of
manner
55(2)
Procedure
Rules
Civil
added)
specific
(emphasis
may
soever ..."
not be
preliminary injunction did not contain
that
the
“findings of fact
conclusions of law
enough
pass
muster.
on its face to
constitutional
grounds
of its action....”
which constitute
injunction
language
probably what
This
in the
is
required
Virginia
Rules
West
which
referring to
December
the NLRB was
in its
52(a).
injunction
Because the
Procedure
Civil
letter,
stated
that the circuit
grounds, we do
vacated on other
not
must be
"ambiguous”
is
and could
in this case
address these contentions.
prohibit
protected
conduct
read to
court did
that the circuit
We also note
Relations Act. See Consolidation
National Labor
*9
engaged
it
in the "bal-
that or how had
indicate
Va.,W.
Coal
v. Disabled Miners
Southern
Co.
of
considering
part
ancing”
should
of
a
be
denied,
(4th Cir.1971),
404
tion of the court and the court’s on determining judg- whether a default appeal motion will not on such be disturbed ment should be entered in the face of a 6(b) an showing unless there is abuse of such upon Rule motion10 or vacated a Rule Holt, 60(b)11 Evans v. Syllabus motion, Point discretion.” the trial court should con- (1) (1995). It degree prejudice W.Va. is a sider: suffered policy by by plaintiff basic established this Court delay from the in answer- (2) merits, ing; presence cases should be decided on their and of material issues of (3) consequently judgments defenses; default fact are not fa- and meritorious sig- (4) stake; vored and a liberal construction should be nificance of the interests at and 60(b) degree accorded a Rule motion to intransigence part vacate a on the Parsons Consoli- judgment party default order. the defaulting in origi- [footnotes not Supply Corp., dated Gas nal]. W.Va. (1979).
256 S.E.2d
Syllabus
Parsons v. Consolidated
Point
Supply Corp., supra,
Gas
163 W.Va. at
“The Rules of Civil Procedure
(1979).
299 First, Energy Marketing has not claimed Since all of the factors to be considered any prejudice resulting delay by from the weigh on setting behalf of aside the default petitioners responding complaint. to the judgment, the circuit court was constrained any prejudice apparent Nor is from the rec- under the facts applicable of the ease and the ord. legal grant petitioners’ standards to mo- tion to judgment; set aside the consequently, Second, petitioners have fac- contested the the court’s decision not to set aside the de- legal tual of Energy Marketing’s bases judgment fault was an abuse of claims, discretion. have made counterclaims. There juncture is no reason to at conclude this petitioners’ defenses are not meritorious. D. Moreover, D., as discussed at Sec. III. infra disputed factual matters in the case call into Jurisdiction question the fundamental issue of the circuit argue Petitioners the circuit court jurisdiction. should have dismissed the entire action Third, the interests at stake include a brought by Energy Marketing for lack of
judgment against petitioners as-yet unde- jurisdiction practice after unfair labor damages, attorney termined fees and costs. charges arising out of the same matters at Additionally, statutory substantial and consti- issue in the circuit court case had been filed rights may tutional be at stake. These are by petitioners NLRB, with the pre-empting significant interests. jurisdiction. the circuit court’s Petitioners Fourth, petitioners were not intransi- also contend before the circuit court gent. They good-faith advanced colorable properly could injunc- issue or maintain an filing reasons for not their answer and coun- against petitioners, tion the court was terclaim and prior defensive motions required first to find the existence of vio- judgment’s entry. default petitioners lence, picketing, mass or overt threats of (eleven timely in a days acted fashion from physical violence. issuance) judgment’s the default to seek re- Energy responds Marketing that the initial
lief from judgment. the default In Evans v. allegations of Holt, threats of violence and intimi- 587, 193 at W.Va. 457 at S.E.2d dation which were made when the case period was of one month to file a motion to set permitted jurisdiction filed the exercise of judgment aside a learning after of it court, juris- and that the court’s was held to be reasonable. In v. Parsons subsequently pre-empted by diction was not Supply Corp., Consolidated Gas 163 atW.Va. filing charges 256 with the NLRB. S.E.2d a one and one-half delay month in answering accepted recently This Court addressed the neglect.
excusable issue of the of a circuit court over Additionally, inasmuch as the fore pickets dispute conduct of in a labor going essentially factors equitable con charge when a has been filed with the NLRB cerns, it is relevant that Marketing, Markets, in Riesbeck Food Inc. v. United beneficiary judgment, the default had Workers, Food and Commercial Local Un “unclean it disregarded hands” —because es ion mandatory tablished legal procedures in ob denied, cert. U.S. S.Ct. taining parte preliminary injunction. the ex Riesbeck, L.Ed.2d 132 after a equity A court of should be reluctant lengthy importance discussion of the of def permanent enshrine as obtained policy erence to federal labor and to the process violation of established due safe procedures national administrative estab guards simply party’s because of a brief de govern lished to of labor conduct dis lay responding “Law, to a claim. it should putes, we stated: remembered, properly game is not Berryman, forfeits!” A may enjoin pickets White state court from obstructive, (Neely, engaging disruptive, in- J., dissenting.) timidating behavior. Such conduct is not
300 not to to the NLRB. The defer the National Labor Rela- determination under
protected
circuit court’s exer-
challenge
instant
Act,
clearly subject to state
is
tions
by
of
instance,
jurisdiction
brought
is
a writ
cise of its
even
in the first
court control
prohibi-
traditional rule
prohibition. Our
Labor Relations
the National
though
trial
will lie where the
tion is that the writ
prac-
unfair labor
considering an
Board is
having
jurisdiction, or
court does not have
arising
union
out of
charge
by
filed
a
tice
powers.
legitimate
jurisdiction exceeds its
the same incident.
Starcher, 174
v.
Monongahela Power Co.
Riesbeck,
2,
supra.
Syllabus Point
593,
A
200
writ
328 S.E.2d
W.Va.
However,
that —aside
Riesbeck also held
prohibit
enforce-
prohibition will lie to
prevent
exercising
jurisdiction
its
from
injunction
the trial court
ment of an
where
obstructive,
intimidating con
disruptive or
its
jurisdiction
have
or exceeded
did not
to the
circuit court should “defer
duct —a
jurisdiction.
proper
Meadows on Behalf of
jurisdiction
the Na
primary and exclusive
Virginia
Employees West
Professional
Relations Board to determine
tional Labor
75,
Hey,
v.
184
399 S.E.2d
Educ. Ass’n
W.Va.
pro
arising
of activities
out
all contentions
434,
(1990);
Casey,
v.
175 W.Va.
657
Hechler
prohibited
7
or
Section
tected
Section
(1985);
Dingess,
799
see Smoot v.
333 S.E.2d
Act
Relations]
[29
Labor
[National
8 of
558,
(Miller,
12. We note that 29 U.S.C. Sec. 107 sets forth if after prerequisites that must be satisfied before a fed- findings of fact the court.... may jurisdiction eral court temporary restraining exercise to issue a prerequisites, These federal court while not preliminary order or in- courts, binding upon important state are an indi- junction dispute. prerequisites in a These labor policy, pro- cation of our labor and can federal requirement include the that: guidance considering vide to circuit courts a No court of the United States shall have request preliminary injunction for in labor temporary permanent or issue Oil, dispute. Ashland Cf. injunction any involving growing case or out (Adherence procedures S.E.2d at 179 to certain dispute, chapter, aof labor as defined in this preliminary injunctions temporary re- except testimony hearing after of witnesses straining orders contained in Federal Rule of (with open opportunity in amination) court for cross-ex- adequately Civil Procedure 65 will more assure support allegations of a process.) due oath, complaint testimony made under upon evidence and after a fair statements substantial From parties, hearing hearing on for all that there is a need transcript of the October prevent vio- motion to the com for a circuit court petitioners’ dismiss lent, obstructive, intimidating judgment, disruptive vacate the default it plaint and solely the circuit court relied appears conduct. upon Energy Marketing’s allega initial determination, Lacking any such upon the assumed conclusive ef tions —and prohibi grant are constrained to the writ of judgment as to the truth of fect of the default However, if tion as moulded. grounds sufficient allegations those —as finds, upon court based substantial evidence petitioners’ claim of to consider refuse hearing parties, and after a fair for all preemption. NLRB *13 injunction an as authorized Ri is needed question to address the of We do not need violent, prevent disruptive, esbeck to obstruc judgment may
whether or when a default
tive,
intimidating
or
conduct in connection
jurisdictional
a conclusive effect as to
have
dispute,
may
circuit
with the labor
the
court
a
allegations or bar the consideration of claim
legitimate jurisdiction in
exercise its
accord
have
pre-emption
of
because we
concluded
principles
with the
enunciated herein.14
in this
that the default
issued
ease
judg-
have been vacated. The default
should
III.
support
the circuit
ment
therefore cannot
to
to the NLRB.
court’s decision not
defer
Conclusion
reasons,
judg
foregoing
grant
For the
the
Leaving aside the default
ment,
prohibition
writ of
as
possible
supporting the
moulded.
the sole
basis
Energy Marketing’s
court’s decision is
circuit
As
Writ Granted Moulded.
However,
allegations.
initial
Riesbeck and
simply
teach that
“look
Eastern Associated
MAYNARD, Justice, dissenting:
allegations
in
ing again” at the initial
made
(Filed
1997)
July
“reasoned determination
the case is not the
original prohibition proceed-
This
an
Associated,
is
jurisdiction,” Eastern
of its own
ing
appeal.
is
an
it
not an
(1975),
Since
is
at 679
220 S.E.2d
—it
appeal,
type
normally
the
of record
filed with
required
upon
of the circuit court
a
which is
appeal
an
has not been filed with this Court.
jurisdiction
challenge
such
nonetheless,
majority,
outwardly
The
while
par
by petitioners.13 Upon
the one made
a
acknowledging
prohibition
that the case is a
ty’s
pre-emption
juris
court
claim of
state
appeal
proceeding, has treated it like an
in
by proceedings
diction
before the National
Board,
order to reach the conclusion which it seeks
a circuit court should
Labor Relations
view,
point
reach. From that
I
I
feel
evidentiary hearing
and make
conduct
must dissent.
findings of fact and conclusions of law to
is a
determine whether there
need for the
prohibition
This
has
that
Court
stated
lies
jurisdiction,
court
continued exercise
state
in two situations. The first is where a lower
or
the circuit court should defer to
whether
jurisdiction
tribunal does not have
jurisdiction
of the NLRB.
it;
subject matter of the case before
The
us contains no
is where a lower tribunal exceeds its
record before
reasoned
second
court,
legitimate powers
acting
regard
determination
based
Miners,
past
13.
Consolidation Coal Co. v. Disabled
months
should not be in itself automatic
Cf.
(4th Cir.1971),
the circuit court legitimate pow- exceeded its I have other reasons for dissenting from issuing ers in involved this majority’s the' decision in this case. The case. majority predicates its conclusion that *14 recently
This Court has recognized also circuit court granting erred in prelimi- prohibition that may be nary injunction used a discretion on ground that the circuit ary manner when a lower acting court is not preliminary court issued the injunction even jurisdiction, in excess of its but though this use of Energy Marketing Company, Inc. prohibition appropriate is only gave to correct no notice to the relators that it was legal substantial clear-cut errors that seeking temporary injunction. previ- As plainly in statutory indicated, contravention of clear ously recognized and as by the constitutional or common law mandate. majority, Energy Marketing Company, Inc. disputes involving such errors must be re did assert a reason giving prior for not independently solvable any disputed facts company notice. The prior asserted that prohibition only because can be used in filing petition, this its it did not know who the way in cases in high proba was, which there is a attorney inferentially relators’ did bility that the trial ruhng wDl be not know precisely give where to notice. completely reversed if error is not majority argues corrected The that because the com- Amy advance. State ex rel. M. v. plaint was fihng verified before the Kauf man, (1996). action, 196 W.Va. given and that notice was some also, Black, See Hinkle v. 164 W.Va. 262 day the relators on the same fihng as the (1979). S.E.2d 744 petition, but filing complet- after the ed, Energy Marketing Company must have ease, present relators, In the caDedthe give known how prior or where to the notice “petitioners” by majority, conceded, have fihng majority of the action. The majority arid the acknowledged, has that En- states: “The inescapable conclusion is ergy Marketing Company, Inc., asserted rea- Energy Marketing given peti- could have giving prior sons for not notice of the fact tioners the notice to they which were enti- seeking preliminary injunction. that it was tled, but chose not to do so.” I find this Nonetheless, majority says that the rea- majority’s absurd. The view is not at aU not, fact, view, sons were my valid. “inescapable” very plausible alternative to —a disputed there was thus a critical fact in this “inescapable” alternative is that disputed ease. That fact was whether Ener- Marketing really did not know where to gy Marketing Company, Inc. did or did not prior serve the fihng notice of its giving prior have a vahd reason for not notice petition, but did learn where to serve the to the relators. Where there is such a dis- day, notice the fihng. same but after the fact, puted Amy Kaufman, State ex rel. M. v. id., “discretionary” prohibition indicates that Frankly, I am at a loss to understand how does not he. judgment injunctive we have a default in an
304 on, below, but, majority going proceeding 281 489 S.E.2d the default resolve proceeds to DEPARTMENT OF WEST VIRGINIA pre-emption basis of the on the question AND HUMAN RESOURCES HEALTH large body of law this There is issue. WRIGHT, Brenda Social Service ex rel. prohibition does indicates State Below, Appellee Worker, Petitioner should not errors and to correct mere not lie appeal, of an usurp the function be used v. Cook, 252 S.E.2d 162 W.Va.
Handley v. J., Respondents and Amanda SCOTT C. Casey 156 (1979), rel. v. Wood ex State Below, Appellants (1972), ex State 193 S.E.2d W.Va. 878, 122 Muntzing, 146 W.Va. rel. Zirk v. J., J., C., J., Brenda Tina Homer Leslie Arnold, (1962), Brown v. S.E.2d 851 Any C., and Putative Father of Scott (1943), Taylor v. 26 S.E.2d W.Va. C., Putative Father Scott Unknown Stevenson, 97 S.E. Below, Appellees. Respondents Court, 7 Judge the Circuit and Buskirk No. 24007. majori- case the But in this just that. ty attempted to do Appeals Supreme Court have in this case could Everything involved Virginia. West majority if the by appeal, and been handled 3, 1997. June Submitted prosecuted, as appeal insisted that had might have the outcome requires, our law 11, 1997. June Decided from the outcome very different been outcome, as majority. That
reached indicated, on a based its decision previously manifest, of fact “inescapable” determination *15 actually occurred. than on what
rather very real my opinion, courts have In individuals, organiza- protect obligation to violence, tions, from society as a whole of the protect them in the exercise and to Often, by the law. rights given to them in labor dis- preliminary injunction questions in the heat of violent putes must be resolved disorder, threatening crisis. such in a situations, policy needed to I feel that society outweighs the need protect pursuit every “i” in the judiciary to dot Here, believe, I formality. perfect legal “i’s,” dotting along majority turned vehicle, the “INES- the use of that new CAPABLE,” findings make the factual it support conclusion which needed legal personally I am wanted to reach. party and do not wish contortionist law, from twisting of the and I dissent such majority has what the done.