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In re Remains of West

Supreme Court of West Virginia

June 7, 2017

IN RE: REMAINS OF CHESTER HOWARD WEST

          Submitted: February 15, 2017

         Appeal from the Circuit Court of Mason County The Honorable David W. Nibert, Judge Civil Action No. 15-P-18

          Robert M. Bastress, Jr. Morgantown, West Virginia Counsel for the Petitioner

          John R. Teare, Jr. Spilman, Thomas & Battle, PLLC Charleston, West Virginia Counsel for the Respondent

         SYLLABUS

         1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

         2. In cases of disinterment of human remains, an abuse of discretion standard governs our review of the circuit court's final order and ultimate disposition in the exercise of its powers in equity.

         3. "West Virginia Code § 29–1–8a (1993) preempts common law with respect to the matters specifically addressed in the statute. The statute preempts all common law claims involving 'historic or prehistoric ruins, burial grounds, archaeological site, or human skeletal remains, unmarked grave, grave artifact or grave marker of historical significance.' W. Va. Code § 29-1-8a(c)(1)." Syllabus Point 2, Hairston v. General Pipeline Construction, Inc., 226 W.Va. 663, 704 S.E.2d 663 (2010).

          OPINION

          WALKER, Justice

         This appeal arises from a petition filed in the Circuit Court of Mason County seeking authorization to disinter the remains of Chester Howard West, a World War I Medal of Honor recipient, and bury him with full military honors at the Gold Star Family Memorial Monument located within the Donel C. Kinnard Memorial State Veterans Cemetery in Institute, West Virginia ("Veterans Cemetery"). Hershel Woodrow Williams, a Medal of Honor recipient, filed the petition for Mr. West to be recognized as a recipient of the highest award a citizen can receive for bravery and valor. In an order dated March 23, 2016, the Circuit Court of Mason County granted Mr. Williams's petition.

         Petitioner Roger VanSickle urges this Court to reverse the order below on the grounds that the circuit court lacks the authority to rule on the question of disinterment of Mr. West's remains. Alternatively, Mr. VanSickle argues that the circuit court abused its discretion in concluding that the equities favor disinterment over the wishes of the surviving spouse at the time of Mr. West's death and the living VanSickle family relatives.

         Mr. Williams argues that the circuit court properly exercised its equitable jurisdiction and carefully balanced the equities in favor of disinterment of Mr. West's remains. He contends that Mr. West's remains should be moved to the Veterans Cemetery so that he is honored for his heroic service and his grave is properly maintained.

         Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm the March 23, 2016 order of the Circuit Court of Mason County.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. West received the Medal of Honor for his heroic service in World War I. According to facts in the hearing record below and undisputed by the parties, he was a 20-year-old first sergeant in an automatic rifle section of the 363rd Infantry Regiment, United States Army's 91st "Wild West" Division. On September 26, 1918, the opening day of the Allies' Meuse-Argonne Offensive, Mr. West ...


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