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The certified question asked the Supreme Court, ÃÛÁÄÖ±²¥œUnder West VirginiaÃÛÁÄÖ±²¥™s common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance, and, if so, what are the elements of such a public nuisance claim?ÃÛÁÄÖ±²¥�

In January, attorneys for the city and county argued to the court that they were not asking it to disturb the fact finding. They asked the court to say that the U.S. District Court got the legal standard wrong, which they said was the point of the certified question.

Attorney David Frederick, on behalf of the city and county, argued the distributors did not comply with legal requirements under state and federal law and, as a result, created a massive public nuisance.

ÃÛÁÄÖ±²¥œWe must answer only questions of law that rest on an undisputed factual record, at times, this Court has declined to answer certified questions when the factual record was undeveloped,ÃÛÁÄÖ±²¥� State Supreme Court Justice C. Haley Bunn said in the opinion.

The question emerges from lawsuits filed by the City of Huntington and the Cabell County Commission against drug distributors AmerisourceBergen Drug Corp., Cardinal Health Inc., and McKesson Corp. relating to the opioid epidemic faced by Huntington and Cabell County. After a 10-week bench trial, the U.S. District Court for the Southern District of West Virginia ruled in favor of the drug distributors. The city and county appealed the district courtÃÛÁÄÖ±²¥™s judgment, and the Fourth Circuit certified the question.

Many of the factual findings made by the District Court are disputed by the parties and are currently on appeal to the Fourth Circuit.

ÃÛÁÄÖ±²¥œThe tragic effects of the opioid epidemic in Huntington and Cabell County are well-known and accepted by the parties,ÃÛÁÄÖ±²¥� MondayÃÛÁÄÖ±²¥™s Supreme Court opinion said. ÃÛÁÄÖ±²¥œYet, we resolve that we cannot, at this juncture, answer the question certified to this Court from the Fourth Circuit due to the disputed factual findings, and related legal conclusions resting on those factual findings, on appeal from the federal district court in this case.ÃÛÁÄÖ±²¥�

The Supreme Court said it answers a certified question if ÃÛÁÄÖ±²¥œthe disposition of the case depends wholly or principally upon the construction of law determined by the answer, regardless of whether the answer is in the negative or affirmative.ÃÛÁÄÖ±²¥�

In order for it to answer a certified question, the court said it requires specific, undisputed facts and a question concerning a legal issue that substantially controls the case. The opinion says it is asked to answer questions of law.

ÃÛÁÄÖ±²¥œIn considering the question before us, we note that whether a nuisance exists is a factual issue,ÃÛÁÄÖ±²¥� it said. ÃÛÁÄÖ±²¥œMoreover, this Court has repeatedly stated that ÃÛÁÄÖ±²¥˜[a] public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of personsÃÛÁÄÖ±²¥™ and has distinguished between a public and a private nuisance by explaining that a public nuisance ÃÛÁÄÖ±²¥˜affects the general public,ÃÛÁÄÖ±²¥™ while a private nuisance ÃÛÁÄÖ±²¥˜injures one person or a limited number of persons only.ÃÛÁÄÖ±²¥™ÃÛÁÄÖ±²¥�

To answer the question, the document states the court would need to rely on the ÃÛÁÄÖ±²¥œthe nature of the partiesÃÛÁÄÖ±²¥™ relationship,ÃÛÁÄÖ±²¥� which would require ÃÛÁÄÖ±²¥œa comprehensive factual analysis.ÃÛÁÄÖ±²¥� The document said the court lacked ÃÛÁÄÖ±²¥œsufficient undisputed findings of fact allowing the Court to conduct such analysis.ÃÛÁÄÖ±²¥�

In their appeal to the Fourth Circuit, and in their briefing before the Supreme Court, the city and county contested the district courtÃÛÁÄÖ±²¥™s factual findings favorable to the defendants and the related legal conclusions dependent upon those findings, the opinion states.

The document stated the court cannot assume what the Fourth Circuit will determine regarding the contested rulings by the district court, either factually or legally. And itÃÛÁÄÖ±²¥™s not constituted for the purpose of making advisory decrees or resolving academic disputes.

In her separate opinion, Justice Beth Walker concurred that the court did not have enough information to accurately answer the question.

ÃÛÁÄÖ±²¥œI write separately to emphasize that this CourtÃÛÁÄÖ±²¥™s power to answer questions certified by our esteemed colleagues in the federal courts is not declined lightly here,ÃÛÁÄÖ±²¥� Walker said. ÃÛÁÄÖ±²¥œI cherish this CourtÃÛÁÄÖ±²¥™s role as the ÃÛÁÄÖ±²¥˜final arbiterÃÛÁÄÖ±²¥™ of West Virginia law and gratefully acknowledge the respectful deference inherent in a certified question. But our power is not without limit, and here it is necessary to exercise restraint.ÃÛÁÄÖ±²¥�

Walker said the state Supreme Court does not have the integral facts to guide a reasoned analysis, which could place the court in the ÃÛÁÄÖ±²¥œprecarious position of venturing a guess as to what the facts might ultimately be to then reach a conclusion that, as a matter of law, public nuisance does or does not extend to them.ÃÛÁÄÖ±²¥�

ÃÛÁÄÖ±²¥œI not only concur in the majorityÃÛÁÄÖ±²¥™s declination to answer the certified question but also see no other option at this stage of the proceeding,ÃÛÁÄÖ±²¥� Walker said.

In a separate, dissenting opinion, Chief Justice William R. ÃÛÁÄÖ±²¥œBillÃÛÁÄÖ±²¥� Wooton, joined by Kanawha County Circuit Court Judge Tera L. Salango, who is sitting on the bench for the case, said the state Supreme Court has the duty and responsibility to answer the certified question asked by the Fourth Circuit.

Wooton then stated he would answer the first part of the question in the affirmative and provide guidance as to the elements of a public nuisance cause of action.

ÃÛÁÄÖ±²¥œMore specifically, I would hold that under West VirginiaÃÛÁÄÖ±²¥™s longstanding common law, ÃÛÁÄÖ±²¥œÃÛÁÄÖ±²¥˜[a] public nuisance is an act or condition that unlawfully operates to hurt or inconvenience an indefinite number of persons,ÃÛÁÄÖ±²¥™ÃÛÁÄÖ±²¥� he said. ÃÛÁÄÖ±²¥œThus, the distribution of a controlled substance as defined in West Virginia Code section 17C-1-68 (2021) is actionable under a public nuisance theory if it causes a condition of widespread harm, meaning that it causes hurt or inconvenience to an indefinite number of persons.

ÃÛÁÄÖ±²¥œThe distinction between a public nuisance and a private nuisance is that the former affects the general public, and the latter injures one person or a limited number of persons only,ÃÛÁÄÖ±²¥� he added. ÃÛÁÄÖ±²¥œOrdinarily, a suit to abate a public nuisance cannot be maintained by an individual in his private capacity, as it is the duty of the proper public officials to vindicate the rights of the public.ÃÛÁÄÖ±²¥�

Mike Woelfel, co-counsel for Cabell County, said he feels good about the case moving forward as it goes back to the Fourth Circuit Court of Appeals.

ÃÛÁÄÖ±²¥œWe have three different opinions today. Clearly the Chief Justice and Justice Salango were favorable to us and we would have preferred to have that as the majority decision,ÃÛÁÄÖ±²¥� he said.

The city and county have been searching for justice in this case for years; Woelfel started on the case in 2017.

ÃÛÁÄÖ±²¥œIts been a long journey with a lot of twists and turns, but IÃÛÁÄÖ±²¥™m optimistic,ÃÛÁÄÖ±²¥� he said.

Woelfel highlighted a footnote in WootonÃÛÁÄÖ±²¥™s and SalangoÃÛÁÄÖ±²¥™s opinion: ÃÛÁÄÖ±²¥œ[t]o be blunt, the opioid crisis is ÃÛÁÄÖ±²¥˜a man-made plague,ÃÛÁÄÖ±²¥™ twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated.ÃÛÁÄÖ±²¥�

Woelfel said the footnote describes the effects the opioid epidemic had on communities.

ÃÛÁÄÖ±²¥œThose of us who live in this community know the demons that this has sent ÃÛÁÄÖ±²¥” this epidemic of opioids that they have unleashed on West Virginia and Cabell County and we move forward,ÃÛÁÄÖ±²¥� he said.

The city and county will go back to the Fourth Circuit to draw three judges who will move the case forward.

The declination of the question will put the decision back into the hands of the Fourth Circuit Court. Huntington Mayor Patrick Farrell wrote on his Facebook page that both the city and county have spent years trying to hold opioid distributors accountable.

ÃÛÁÄÖ±²¥œNow itÃÛÁÄÖ±²¥™s back to the Federal Fourth Circuit as we continue the fight for justice,ÃÛÁÄÖ±²¥� he said.