Charles Lusher, pro se, appeals the May 13, 2016, order of
the Circuit Court of Kanawha County imposing a fine and court
costs for speeding in violation of West Virginia Code §
17C-6-1. Respondent Town of Pratt ("the Town"), by
counsel Carrie A. Dysart, filed a summary response requesting
that petitioner's appeal be dismissed as moot. Petitioner
filed a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds that petitioner's appeal has been
rendered moot. For these reasons, a memorandum decision
dismissing the appeal is appropriate under Rule 21 of the
Rules of Appellate Procedure.
December 29, 2015, petitioner was issued a citation by the
Town for traveling 54 miles per hour ("mph") in a
40 mph zone in violation of West Virginia Code §
17C-6-1. Petitioner challenged the citation in the Municipal
Court of the Town of Pratt, which found him guilty of
appealed to the Circuit Court of Kanawha County, which held a
trial de novo on May 12, 2016. By order entered on May 13,
2016, the circuit court convicted petitioner of a speeding
violation, finding that the Town proved its case "beyond
a reasonable doubt." The circuit court imposed a fine of
$75 and assessed petitioner $82 in court costs for a total
amount of $157, consistent with the fine and costs ordered by
the municipal court.
now appeals the circuit court's May 13, 2016, order.
"Moot questions or abstract propositions, the decision
of which would avail nothing in the determination of
controverted rights of persons or of property, are not
properly cognizable by a court." Syl. Pt. 4, Cline
v. Mirandy, 234 W.Va. 427, 765 S.E.2d 583 (2014)
(internal quotations and citations omitted).
appeal, petitioner contends that he was prosecuted and
sentenced in an unconstitutional manner. Though the Town
denies that petitioner was unconstitutionally prosecuted and
sentenced, it has agreed to both rescind petitioner's
speeding citation and refund the fine and the court costs in
the total amount of $157. Therefore, the Town argues that
petitioner's appeal should be dismissed as moot.
contends that, in addition to a refund of $157, he is also
entitled to (1) consequential damages for incidental expenses
such as traveling to and from his court appearances; and (2)
damages for the pain and suffering that the Town has
inflicted upon him. However, this is not a civil action in
which petitioner has sued the Town for alleged constitutional
violations.  Rather, this case comprises the Town's
prosecution of petitioner for a traffic infraction. The Town
has agreed to both rescind petitioner's speeding citation
and refund the fine and the court costs. We find that, if
petitioner wants monetary damages from the Town, he must file
a civil action. We dismiss petitioner's appeal as moot
because the Town has undertaken to grant him all the relief
available to him in this proceeding.
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin Jean Davis Justice Margaret L. Workman Justice Menis E.
Ketchum Justice Elizabeth D. Walker
See Syl. Pt. 2, Hutchison
v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649
(1996) (holding that "[u]nless barred by one of the
recognized statutory, constitutional[, ] or common law
immunities, a private cause of action exists where a
municipality or local governmental unit causes injury by
denying that person rights that are protected by the Due
Process Clause embodied within Article 3, § 10 of the
West Virginia Constitution").
With his reply, petitioner filed a
motion for the disqualification of the Justices of this
Court. We deny the motion for petitioner's failure to
comply with Rule 33(d) of the West Virginia Rules of
Appellate Procedure, which requires that a motion for
disqualification be accompanied by a certificate verifying
that the motion "is well grounded in fact and is
warranted by existing law or good faith argument for the
extension, modification, or reversal of existing law"
and "not interposed for any improper ...