W. Va. Code ยงยง 50-5-1 et seq. Also prior to 1994, this Court recognized that a magistrate court was not a court of record. See Truglio v. Julio, 174 W. Va. 66, 68, 322 S.E.2d 698, 700 (1984) ("Although the magistrate court is not a court of record, its final judgment is binding unless overturned on appeal."); Criss v. Salvation Army Residences, 173 W. Va. 634, 639 n. 9, 319 S.E.2d 403, 408 n. 9 (1984) (noting that magistrate court is not a court of record); State ex rel. O'Neill v. Gay, 169 W. Va. 16, 23, 285 S.E.2d 637, 641 (1981) (same). However, in 1994, the legislature amended certain provisions of the West Virginia Code pertaining to magistrate courts.
Moreover, it not only would punish the tenant for reporting violations "but also would stand as a warning to others that they dare not be so bold[.]" 397 F.2d at 701. In West Virginia, this Court first addressed the defense of retaliatory eviction in Criss v. Salvation Army Residences, 173 W. Va. 634, 319 S.E.2d 403 (1984). In Criss, one argument raised by the tenants was that W. Va. Code, 55-3A-1, et seq., "denies them an adequate remedy for the defense of retaliatory eviction."
The majority of state courts to address the issue reach the same conclusion. See Marquez-Luque v. Marquez, 192 Cal.App.3d 1513, 238 Cal.Rptr. 172 (App.), modified 193 Cal.App.3d 1093 (App. 1987); Hopkins v. Justice of the Peace Court No. 1, 342 A.2d 243 (Del.Super. 1975); Hill v. Levenson, 259 Ga. 395, 383 S.E.2d 110 (1989); North Sch. Congregate Housing v. Merrithew, 558 A.2d 1189 (Me. 1989); Carroll v. Housing Opportunities Comm'n, 306 Md. 515, 510 A.2d 540 (1986); Reiter v. Reiter, 240 Mont. 450, 784 P.2d 917 (1990); Martin v. Rogers, 42 Ohio App.3d 110, 536 N.E.2d 665 (1987); Criss v. Salvation Army Residences, 173 W. Va. 634, 319 S.E.2d 403 (1984). But see Lum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989); Alfour Inc. v. Light-foot, 123 N.J. Super. 1, 301 A.2d 197 (1973).
After minimal discovery, Imperial moved for summary judgment. The circuit court granted Imperial's motion in an amended judgment order dated October 8, 1986, relying principally upon Criss v. Salvation Army Residences, 173 W. Va. 634, 319 S.E.2d 403 (1984). The court concluded that the retaliation defense "must derive from, or in some respect be related to, exercise by the tenant of rights incident to his capacity as a `tenant'."
ยถ80 West Virginia's highest state court acknowledged that if all tenants asserted their jury-trial right under the state's FED statute, that might thwart the statute's purpose of providing "a quick procedure to remove a hold-over tenant." Criss v. Salvation Army Residences, 319 S.E.2d 403, 407 (W.Va. 1984).
Even so, most state courts to consider the issue have followed the analytical path laid out in Pernell and have concluded that, under jury trial guarantees similar to ours, statutory actions by a landlord to recover possession of real property from a tenant are legal in nature and are thus triable to a jury. See, Ex Parte Moore , 880 So. 2d 1131 (Ala. 2003) ; Hill v. Levenson , 259 Ga. 395, 383 S.E.2d 110 (1989) ; N. Sch. Congregate Housing v. Merrithew , 558 A.2d 1189 (Me. 1989) ; Criss v. Salvation Army Residences , 173 W. Va. 634, 319 S.E.2d 403 (1984) ; Baldwin Sod Farms, Inc. v. Corrigan , 746 So. 2d 1198 (Fla. App. 1999). But see Vinson v. Hamilton , 854 P.2d 733 (Alaska 1993) (holding that action for possession brought under forcible entry and detainer statute was equitable in nature and that thus, parties did not have state constitutional right to jury trial).
" This statute must be read in conjunction with W. Va. Code ยง 55-3A-1 et seq., entitled "Remedies For Wrongful Occupation of Residential Rental Property" (hereinafter "Wrongful Occupation Act"). The Wrongful Occupation Act was passed in 1983 "to provide the landlord with a quick procedure to remove a hold-over tenant[.]" Criss v. Salvation Army Residences, 173 W. Va. 634, 638, 319 S.E.2d 403, 407 (1984). W. Va. Code ยง 55-3A-1(a) states:
That the Rules have the force and effect of a statute is unquestioned. Criss v. Salvation Army Residences, 173 W. Va. 634, 639, 319 S.E.2d 403, 408 (1984). Third, looking at the purpose of the federal regulation in question, we believe that 28 C.F.R. ยง 20.33 requires state "statutory" authority for criminal history record information dissemination for non-law enforcement purposes to guarantee that there are established governmental standards, controls, protections and oversight for such dissemination.
f prohibition back into proper focus. See State ex rel. Chafin v. Halbritter, 191 W. Va. 741, 448 S.E.2d 428 (1994) (granted prohibition because Court disagreed with trial court's ruling concerning "marital property"); McDowell County Bd. of Educ. v. Stephens, 191 W. Va. 711, 447 S.E.2d 912 (1994) (granted a rule to show cause to determine whether a lower court should have dismissed amended pleading); State ex rel. Scales v. Committee on Legal Ethics, 191 W. Va. 507, 446 S.E.2d 729 (1994) (granted prohibition to stop investigation of an attorney); State ex rel. Erickson v. Hill, 191 W. Va. 320, 445 S.E.2d 503 (1994) (granted prohibition to discovery order because it was abusive and oppressive); State ex rel. Spaulding v. Watt, 188 W. Va. 124, 423 S.E.2d 217 (1992) (prohibition granted to prevent defendant's release on bail); State ex rel. Strickland v. Daniels, 173 W. Va. 576, 318 S.E.2d 627 (1984) (granted writ to prohibit magistrate from removing only part of case to circuit court); Criss v. Salvation Army Residences, 173 W. Va. 634, 319 S.E.2d 403 (1984) (granted prohibition because tenant may be evicted before full appeal). The modern abuse of the writ of prohibition began in Woodall v. Laurita, 156 W. Va. 707, 712, 195 S.E.2d 717, 720 (1973), where a unanimous Court stated:
We ruled in Strickland that the tenant was not adequately protected by the right to appeal "because she [tenant] could well be evicted before the appeal is fully heard." Strickland, 173 W. Va. at 580, 318 S.E.2d at 631; see also Criss v. Salvation Army Residences, 173 W. Va. 634, 640, 319 S.E.2d 403, 409 (1984) ("[t]he petitioners in the case before us are not fully protected by the right to appeal because they could be evicted before the appeal is heard"). After finding that prohibition would also save the parties time and money, we held prohibition to be an appropriate remedy.