Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Johnson v. Pinson

Docket: 19-1014

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Contracts, Real Estate & Property Law

The Supreme Court affirmed the order of the circuit court granting summary judgment to Ruth Ann Pinson and dismissing Denise Johnson's claim that Ruth's husband, Mark Pinson, violated West Virginia's Uniform Fraudulent Transfers Act's (UFTA), W. Va. Code 40-1A-1 to -15, prohibition against fraudulent transfers, holding that Plaintiff did not present evidence demonstrating the existence of a material fact regarding Mark's status as her debtor within the meaning of the UFTA. Johnson asserted that Mark conveyed real property to Ruth with the intent to hinder, delay, or defraud Johnson's attempt to collect on a judgment assigned to her by a third party. The circuit court found that Ruth was entitled to summary judgment as a matter of law. The Supreme Court affirmed, holding that the circuit court did not misinterpret the UFTA or err in denying Johnson's motion to amend the complaint to add Mark as a defendant.

State v. Walker

Docket: 19-0777

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the circuit court denying Defendant's motion to correct illegal sentence, holding that the circuit court did not err in determining that defendants are not entitled to credit for time served on home incarceration where the home incarceration is a condition of probation. Defendant was convicted of one count of grand larceny by false pretenses. Defendant was sentenced to a term of one to ten years in prison, suspended in favor of three years' probation. After Defendant's probation was revoked, he was sentenced to the underlying term of incarceration. Thereafter, Defendant filed a motion to correct illegal sentence, asserting that he should be credited for time served on home incarceration as part of his probation. The circuit court denied the motion. The Supreme Court affirmed, holding that Defendant was not entitled to credit for time served while on home incarceration where that home incarceration was imposed as a condition of probation rather than as an alternative sentence to another form of incarceration.

Owens v. Lincoln County Board of Education

Dockets: 19-0684, 19-0687

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Government & Administrative Law, Labor & Employment Law

The Supreme Court affirmed the decision of the circuit court reversing the decision of the Public Employees Grievance Board (PEGB) determining that Petitioners, employees of the Lincoln County Board of Education, did not qualify as Executive Secretaries under W. Va. 18A-4-8(i)(45), holding that the circuit court did not err. Petitioners filed grievances with the PEGB seeking reclassification from Secretary III to Executive Secretary. The PEGB found that Petitioners did not meet section 18A-4-8(i)(45)'s definition of Executive Secretary but that they were entitled to reclassification because they met the Board's definition of Executive Secretary. The circuit court affirmed the PEGB's determination that Petitioners did not qualify as Executive Secretaries under the Code but reversed the decision granting Petitioners' requested classification, concluding that the Board's definition of Executive Secretary contravened state law because it conflicted with section 18A-4-8(i)(45). The Supreme Court affirmed, holding that the Board's definition of the Executive Secretary title was unquestionably contrary to the law.

AC&S Inc., v. George

Docket: 19-0459

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Labor & Employment Law

The Supreme Court affirmed the judgment of the circuit court denying AC&S, Inc.'s motion to dismiss this complaint claiming unlawful employment discrimination and retaliation, holding that the circuit court did not err. After his employment with AC&S was terminated, Plaintiff brought this case, asserting claims for unlawful employment discrimination and retaliation. AC&S filed a motion to dismiss and to compel arbitration of Plaintiff's claims under the terms of the collective bargaining agreement (CBA) between the relevant union and AC&S. After a hearing, the circuit court denied the motion, finding that Plaintiff's individual employment discrimination claims fell outside the scope of the CBA. The Supreme Court affirmed, holding that the statutory and common law employment discrimination claims fell outside the substantive scope of the CBA.

Antero Resources Corp. v. Steager

Docket: 18-1106

Opinion Date: November 17, 2020

Judge: Armstead

Areas of Law: Real Estate & Property Law, Tax Law

In this tax appeal, the Supreme Court affirmed in part and reversed in part the final order of the circuit court determining that certain purchases of tangible personal property and services made by Antero Resources Corporation did not qualify for the direct use exemption under W. Va. Code 9(b)(2) and 11-15A-3(a)(2) (the direct use exemption), holding that Antero was entitled to the direct use exemption for certain purchases and services. The office of tax appeals reimposed a sale and use tax assessment against Antero for purchases and rentals of certain personal property and services. The circuit court reversed, determining that because certain purchases of tangible personal property and services made by Antero were not directly used in its natural resource production, they did not qualify for the direct use exemption. The Supreme Court reversed in part, holding that Antero (1) was entitled to the direct use exemption for crew quarters and related equipment, portable toils, sewage systems, related water systems, and septic cleaning charges; and (2) was not entitled to the exemption for the rentals of trash trailers and waste receptacles.

Carr v. Veach

Docket: 19-0216

Opinion Date: November 17, 2020

Judge: Armstead

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the order of the circuit court denying Petitioners' motion for a new trial and renewed motion for a new trial after a bench trial, holding that the circuit court did not err in finding that Petitioners had neither an express easement nor a prescriptive easement across Respondents' property. At issue was an internal private road on Respondents' property that stretched to Petitioners' property. Respondents eventually revoked permission to use the internal road and blocked Petitioners' access across the private road. The circuit court determined that Petitioners had neither an express easement nor a prescriptive easement across Respondents' property. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in finding (1) no express easement existed that granted Petitioners the right to use the private road crossing Respondents' property; and (2) no easement across Respondents' land was established by prescription.

Sheehan v. Mortgage Electronic Registration Systems, Inc.

Docket: 19-1082

Opinion Date: November 17, 2020

Judge: Walker

Areas of Law: Real Estate & Property Law

The Supreme Court answered in the affirmative a question certified to it by the Bankruptcy Court for the North District of West Virginia, concluding that a manufactured home with a title issued by the Division of Motor Vehicles (DMV) may be converted to real property by operation of common law even when the home still maintains a motor vehicle title. At issue was how, under state law, one can perfect a security interest upon a manufactured home that maintains both personal and real property characteristics. The Supreme Court determined that satisfying the requirements of Snuffer v. Spangler, 92 S.E. 106 ( W. Va. 1917) converts the legal character of a manufactured home from personal to real property such that a lien on that property may be perfected by deed of trust even if the home's owners have not cancelled the DMV title under the cancellation procedure of W. Va. Cod3 17A-3-12b(a).