FILED April 26, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
No. 20-0973 – West Virginia Office of Miners’ Health, Safety and Training v. Bobby Beavers
Chief Justice Hutchison, dissenting, joined by Justice Moats:
I dissent because the majority opinion has rewritten state law, and in doing
so has imposed a bureaucratic mindset that violates fundamental principles of due process.
At its heart, this case is about evidence and the burden of proof. Basic
principles of due process tell us that it is the proponent of a theory who bears the burden
of proof. Moreover, as written, the state law governing hearings before the Coal Mine
Safety Board of Appeals (“the Board”) incorporates those basic principles of due process.
In order for the Board to suspend a miner’s certificate to work, state law requires the
introduction of evidence showing “by a preponderance of the evidence” that the suspension
is warranted. The state law provides that
the board shall proceed to determine the case upon consideration of all the evidence offered and shall render a decision containing its findings of fact and conclusions of law. If the board finds by a preponderance of the evidence that the certificate or certificates of the charged person should be suspended or revoked, as hereinafter provided, it shall enter an order to that effect.
W. Va. Code § 22A-1-31(c) (2016) (emphasis added). Hence, in this case, the Office of
Miners’ Health, Safety and Training (“OMHST”) bore the burden of proving to the Board,
by a preponderance of the evidence, that Bobby Beavers had “Cannabinoids/THC” in his
system. See W. Va. Code § 22A-1A-1(a)(1)(B) (2019).
1 The majority opinion fairly renders the facts: Mr. Beavers tested negative for
THC in a drug screen on February 9, 2020. On February 10th, when Mr. Beavers asked his
pharmacist for something to help him sleep, the pharmacist recommended an over-the-
counter hemp-derived remedy that contained CBD. The pharmacist assured him the CBD
wouldn’t affect any drug screens. Mr. Beavers used the CBD product that night. The next
day when he showed up to work (on February 11th), he was surprised with another drug
test. This time, he tested positive for some form of THC. Upon receiving the positive test,
OMHST suspended Mr. Beavers’s certificates to work as a miner for a period of six
months.
Mr. Beavers appealed to the Board. Before the Board, OMHST bore the
burden of proof. The Board obviously heard the testimony and the evidence from Mr.
Beavers indicating that he never intentionally consumed any THC-containing product.
Unfortunately, as West Virginia’s law stands right now, the majority is right: the lack of
intent was, sadly, no defense. 1
I encourage the Legislature to study and rectify this issue, because CBD 1
products, contaminated with THC, are becoming common in the marketplace and accidental consumption of forms of THC are likely to become commonplace. Moreover, while the delta-9 version of THC is the intoxicating form found in marijuana, some CBD products contain non-intoxicating versions like delta-8. There is a possibility that tests relied upon by OMHST do not necessarily distinguish between legal and illegal forms of THC. Moreover, as this case makes clear, the tests may not distinguish between legal CBD and illegal THC, resulting in miners being punished for engaging in perfectly legal activity.
2 The problem in this case is, OMHST put a doctor on the stand who essentially
testified that the drug screening test was unreliable and could not distinguish between legal
CBD and illegal THC. The doctor stated she was not a scientist and does not conduct any
testing, but she admitted that a drug screen might test positive for THC when the actual
substance was CBD. The doctor also said she could not testify if the testing process could
distinguish between THC and CBD. Based upon the doctor’s testimony, the Board reached
its ultimate conclusion founded “upon consideration of all the evidence offered:” OMHST
had failed to prove by a preponderance of the evidence that Mr. Beavers had THC in his
system. The Board considered the evidence presented and concluded that OMHST’s
doctor “was not able to testify that the testing mechanism or methodology could distinguish
between THC and CBD.”
I dissent because the majority opinion has rewritten West Virginia Code §
22A-1-31(c) and turned due process on its head. Contrary to the law, the majority opinion
conducts its own fact-finding mission and presumes that the test results offered by OMHST
are valid and reliable. Thus, the majority opinion wholly ignores the Board’s finding that
the test results proved nothing. Instead of following state law and putting the burden of
proof on OMHST, the majority opinion places the burden squarely on Mr. Beavers. It
chides him for “proceed[ing] without a lawyer,” and repeatedly points out that he “did not 2
___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op at 3 and 4). 2
3 properly challenge his test results.” 3 Mind you, thanks to OMHST’s suspension of his
miner’s certificates, Mr. Beavers was unemployed and facing six months without work,
with a pregnant wife and two young children at home. Under these circumstances, I can
only say that the majority opinion’s suggestion that Mr. Beavers should have hired a lawyer
and paid cash “to have his split sample tested at a SAMHSA certified laboratory” is unfair
and unrealistic.
But the fact remains that Mr. Beavers bore no burden of proof, and the
majority opinion cites no rule, statute, or most importantly, constitutional provision putting
the burden on Mr. Beavers. True, the majority opinion cites a rule in the Code of State
Rules as support for its conclusion that “[t]he Board did not have the legal authority to
disregard the laboratory test,” but that is a misstatement of the cited rule. The rule provides 4
that unchallenged test results “shall be admissible as though the [miner] and the Director
[of OMHST] had stipulated to their admissibility.” 56 C.S.R. § 19-8.4. The rule certainly
made OMHST’s test results admissible into evidence, but it did not make those test results
conclusive, irrefutable proof or shift the burden of proof to Mr. Beavers. Once the drug
screen results were admitted, the Board was free to ascribe to the results any probative
effect it felt warranted, based “upon consideration of all the evidence offered.” Based upon
___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 13). 3
___ W.Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 15). 4
4 the testimony of the doctor offered by OMHST, the Board concluded that the drug screen
results were unreliable and failed to establish that Mr. Beavers had THC in his system.
Hence, I dissent because the majority opinion has obliterated the fact-finding
powers of the Board, despite those powers being contained within state law. Specifically,
the majority opinion eviscerates the Board’s power “to determine the case upon
consideration of all the evidence offered” and narrows it down to one question: “did he 5
have a valid positive cannabinoids/THC test result?” 6 Again, the majority opinion ignores
the Board’s findings that the test results were invalid. Instead, the majority opinion makes
its own findings of fact, declaring that “yes” the test was “valid” and contained THC
because Mr.
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FILED April 26, 2022 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
No. 20-0973 – West Virginia Office of Miners’ Health, Safety and Training v. Bobby Beavers
Chief Justice Hutchison, dissenting, joined by Justice Moats:
I dissent because the majority opinion has rewritten state law, and in doing
so has imposed a bureaucratic mindset that violates fundamental principles of due process.
At its heart, this case is about evidence and the burden of proof. Basic
principles of due process tell us that it is the proponent of a theory who bears the burden
of proof. Moreover, as written, the state law governing hearings before the Coal Mine
Safety Board of Appeals (“the Board”) incorporates those basic principles of due process.
In order for the Board to suspend a miner’s certificate to work, state law requires the
introduction of evidence showing “by a preponderance of the evidence” that the suspension
is warranted. The state law provides that
the board shall proceed to determine the case upon consideration of all the evidence offered and shall render a decision containing its findings of fact and conclusions of law. If the board finds by a preponderance of the evidence that the certificate or certificates of the charged person should be suspended or revoked, as hereinafter provided, it shall enter an order to that effect.
W. Va. Code § 22A-1-31(c) (2016) (emphasis added). Hence, in this case, the Office of
Miners’ Health, Safety and Training (“OMHST”) bore the burden of proving to the Board,
by a preponderance of the evidence, that Bobby Beavers had “Cannabinoids/THC” in his
system. See W. Va. Code § 22A-1A-1(a)(1)(B) (2019).
1 The majority opinion fairly renders the facts: Mr. Beavers tested negative for
THC in a drug screen on February 9, 2020. On February 10th, when Mr. Beavers asked his
pharmacist for something to help him sleep, the pharmacist recommended an over-the-
counter hemp-derived remedy that contained CBD. The pharmacist assured him the CBD
wouldn’t affect any drug screens. Mr. Beavers used the CBD product that night. The next
day when he showed up to work (on February 11th), he was surprised with another drug
test. This time, he tested positive for some form of THC. Upon receiving the positive test,
OMHST suspended Mr. Beavers’s certificates to work as a miner for a period of six
months.
Mr. Beavers appealed to the Board. Before the Board, OMHST bore the
burden of proof. The Board obviously heard the testimony and the evidence from Mr.
Beavers indicating that he never intentionally consumed any THC-containing product.
Unfortunately, as West Virginia’s law stands right now, the majority is right: the lack of
intent was, sadly, no defense. 1
I encourage the Legislature to study and rectify this issue, because CBD 1
products, contaminated with THC, are becoming common in the marketplace and accidental consumption of forms of THC are likely to become commonplace. Moreover, while the delta-9 version of THC is the intoxicating form found in marijuana, some CBD products contain non-intoxicating versions like delta-8. There is a possibility that tests relied upon by OMHST do not necessarily distinguish between legal and illegal forms of THC. Moreover, as this case makes clear, the tests may not distinguish between legal CBD and illegal THC, resulting in miners being punished for engaging in perfectly legal activity.
2 The problem in this case is, OMHST put a doctor on the stand who essentially
testified that the drug screening test was unreliable and could not distinguish between legal
CBD and illegal THC. The doctor stated she was not a scientist and does not conduct any
testing, but she admitted that a drug screen might test positive for THC when the actual
substance was CBD. The doctor also said she could not testify if the testing process could
distinguish between THC and CBD. Based upon the doctor’s testimony, the Board reached
its ultimate conclusion founded “upon consideration of all the evidence offered:” OMHST
had failed to prove by a preponderance of the evidence that Mr. Beavers had THC in his
system. The Board considered the evidence presented and concluded that OMHST’s
doctor “was not able to testify that the testing mechanism or methodology could distinguish
between THC and CBD.”
I dissent because the majority opinion has rewritten West Virginia Code §
22A-1-31(c) and turned due process on its head. Contrary to the law, the majority opinion
conducts its own fact-finding mission and presumes that the test results offered by OMHST
are valid and reliable. Thus, the majority opinion wholly ignores the Board’s finding that
the test results proved nothing. Instead of following state law and putting the burden of
proof on OMHST, the majority opinion places the burden squarely on Mr. Beavers. It
chides him for “proceed[ing] without a lawyer,” and repeatedly points out that he “did not 2
___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op at 3 and 4). 2
3 properly challenge his test results.” 3 Mind you, thanks to OMHST’s suspension of his
miner’s certificates, Mr. Beavers was unemployed and facing six months without work,
with a pregnant wife and two young children at home. Under these circumstances, I can
only say that the majority opinion’s suggestion that Mr. Beavers should have hired a lawyer
and paid cash “to have his split sample tested at a SAMHSA certified laboratory” is unfair
and unrealistic.
But the fact remains that Mr. Beavers bore no burden of proof, and the
majority opinion cites no rule, statute, or most importantly, constitutional provision putting
the burden on Mr. Beavers. True, the majority opinion cites a rule in the Code of State
Rules as support for its conclusion that “[t]he Board did not have the legal authority to
disregard the laboratory test,” but that is a misstatement of the cited rule. The rule provides 4
that unchallenged test results “shall be admissible as though the [miner] and the Director
[of OMHST] had stipulated to their admissibility.” 56 C.S.R. § 19-8.4. The rule certainly
made OMHST’s test results admissible into evidence, but it did not make those test results
conclusive, irrefutable proof or shift the burden of proof to Mr. Beavers. Once the drug
screen results were admitted, the Board was free to ascribe to the results any probative
effect it felt warranted, based “upon consideration of all the evidence offered.” Based upon
___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 13). 3
___ W.Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 15). 4
4 the testimony of the doctor offered by OMHST, the Board concluded that the drug screen
results were unreliable and failed to establish that Mr. Beavers had THC in his system.
Hence, I dissent because the majority opinion has obliterated the fact-finding
powers of the Board, despite those powers being contained within state law. Specifically,
the majority opinion eviscerates the Board’s power “to determine the case upon
consideration of all the evidence offered” and narrows it down to one question: “did he 5
have a valid positive cannabinoids/THC test result?” 6 Again, the majority opinion ignores
the Board’s findings that the test results were invalid. Instead, the majority opinion makes
its own findings of fact, declaring that “yes” the test was “valid” and contained THC
because Mr. Beavers did not spend his money on a lawyer or additional testing to prove
otherwise. In effect, the majority opinion creates a presumption of reliability for whatever
evidence OMHST presents to the Board, and rules that it is miners who bear the burden of
disproving that evidence.
In sum, while the majority opinion claims it cannot act as a “superlegislature”
and rewrite a statute, it has simultaneously rewritten two statutes at once. It has crippled
the Board’s fact-finding ability under West Virginia Code § 22A-1-31(c), and effectively
converted West Virginia Code § 22A-1A-1 into a strict liability statute. Thus, so long as
an employer or the OMHST produces a test positive for THC, from whatever source or
W. Va. Code § 22A-1-31(c). 5
___ W. Va. at ___, ___ S.E.2d at ___ (Slip. Op. at 21). 6
5 quality, the Board must blindly accept that evidence and act without question or any other
proof.
The result is that the majority opinion wholly ignores due process. 7
I understand that illicit drug use is rampant in West Virginia. I also
sympathize with mining companies and other employers who are determined to maintain
safe work sites. An impaired worker is a dangerous worker, and employers should be
allowed to rely upon medical test results to secure the safety of their workplaces. We can
argue all day about whether Mr. Beavers was impaired on the jobsite by having trace
amounts of THC in his system, but that is the policy argument upon which the majority
opinion claims it is deferring to the Legislature.
In a footnote, the majority opinion misrepresents the point of my dissent. 7
Let me say it again, in a nutshell: I am dissenting because the Board found that OMHST failed to meet its burden of proof and establish by a preponderance of the evidence that it could take Mr. Beavers’s licenses. After viewing all the evidence, the Board concluded that OMHST failed to show that Mr. Beavers had THC in his system because the test OMHST offered could not distinguish between illegal THC and legal CBD.
The majority opinion, however, in footnote 12, misreads this dissent and appears to deliberately misunderstand the meaning of “burden of proof.” The opinion’s footnote creates a non-existent, strawman position and recasts the dissent as my “desire to implement testing procedures that can distinguish between legal CBD and illegal THC.” The footnote then boldly knocks down that strawman and concludes “it is not the province of this Court to require the OMHST to do so.” The problem for the majority opinion is that I have advocated for no such test. I only advocate for the majority opinion to follow the law as it is written, to not subvert the Board’s statutory duty as factfinder, and to not rewrite the law to unconstitutionally impose its own preferred policy position.
6 The reality is that this case isn’t about a workplace safety decision; this is
about a decision by the State and its agencies to deprive a citizen of a government-provided
certificate allowing him to work. This is a constitutionally provided benefit, and due
process attaches to protect that benefit. The case before the Court has no bearing on an
employer’s right to maintain safety. Shifting the burden of proof onto the miner, and
rewriting state law to create a presumption that the government’s evidence is always right
and probative, turns due process and fairness on its head.
I therefore respectfully but strenuously dissent to the majority’s opinion. I
am authorized to state that Justice Moats joins in this dissenting opinion.