The chambers of the West Virginia Supreme Court of Appeals
CHARLESTON – The state Supreme Court heard a case about a former Logan High School student who claims she was sexually abused by a teacher while school officials allegedly failed to protect her.
But the April 21 oral arguments were more about a fight over procedural doctrine and governmental protections.
The Logan County Board of Education claims procedural rules, governmental immunity and the statute of limitations should keep the lawsuit from going to trial. But an attorney for the former student counters by saying the case should be sent back to Logan Circuit Court for discovery and trial, citing both the gravity of the abuse and the board’s procedural choices.
In the 2022 lawsuit, Elizabeth Vestal claimed former Logan High School teacher and band director Brandon Willard began sexually assaulting her in May 2003 when she was a sophomore and continued through her junior and senior years, at band camp, on school trips, at school events and later at a band camp after graduation.
She claims Willard’s conduct ranged from groping and forced sexual touching to rapes on school premises and at band functions, accompanied by threats that kept her silent until she later disclosed the abuse to her parents.
Vestal sued in October 2022 in Kanawha County. It was transferred to Logan County in early 2023. Logan Circuit Court Judge Kelly Codispoti later denied the school board’s motions to dismiss as untimely and refused to reach the board’s immunity and constitutional arguments.
In the appeal, the board asks the Supreme Court to overturn the denial of its motions to dismiss and to either dismiss the claims against it outright or grant a writ of prohibition halting the case.
Vestal, who turned 18 in October 2004, had two years after reaching majority to sue for her injuries according to state code at the time. But amendments to code in 2016 and 2020 expanded the time for childhood‑sexual‑abuse claims, ultimately allowing such actions to be filed until age 36.
The board argues Vestal’s claims can’t be revived because the old limitations period already has passed. And even taking the statute of limitations out of the equation, the attorney for the school board argued it, as a political subdivision, only can be liable for negligence and can’t be a perpetrator or for responsible for aiding, abetting or concealing the sexual abuse.
Vestal also argues that under U.S. Supreme Court authority, the expiration of a statute of limitations does not create a vested property right in the defense that is protected by substantive due process.
Three of the bigger procedural questions before the court are:
· Did the school board forfeit or preserve its immunity and constitutional defenses by the way it sequenced its motions?
· Does the Tort Claims Act allow a school board to be sued for negligent hiring and supervision in a child‑sex‑abuse case where the perpetrator was a teacher?
· Can the Legislature constitutionally revive childhood‑sexual‑abuse claims against a public entity after the old statute of limitations has run?
Miller
Vestal’s attorney Josh Miller, during Tuesday’s oral arguments, said Codispoti ruled three or four times that motions to dismiss the case were untimely.
“She did not address whether or not immunity was would be granted or not granted,” Miller said. “The court just wrote, ‘You didn’t file a timely. You violated the rules of civil procedure. I’m not going to rule on them. We can now have discovery. Petitioner can file a motion for summary judgment. Petitioner can bring it up in trial if they want to.’ …
“But if we’re going to talk about immunity, they don’t have it here for a number of reasons. Number one, it’s too soon to determine it. … The plaintiff should be allowed the opportunity to develop the record, develop the facts and then, upon motion for summary judgment, possibly have the immunity defense initiated and the circuit court rule on it. That’s the most important part.
“And once immunity is raised, it needs to be ruled on. And I agree with the petitioner in that so long as it’s raised timely and under proper facts and under a proper motion. Here it was not filed under a proper motion.”
As for the constitutionality of the statute of limitations, Miller said the new statute was “broadened to help victims of sexual assault and rape.”
“The Legislature has seen it fit because it’s an important public policy to protect minors, even when they become young adults, because maybe they aren't courageous enough to forward their claims on their own,” Miller argued. “They need to grow that courage later in life to bring those claims. And our Legislature saw fit to do that, and they did that.
“And it’s permissible. Several states have reviewed this in recent years and found it to be constitutional. Vermont says it’s constitutional. Maryland does. Georgia does. North Carolina does. And they say that you can expand the statute of limitations and protect children who can bring claims because those that were there to protect them either may have not have protected them at the time or don’t know enough themselves to help forward their case into the future.”
Willard, who lived in Kanawha County when the complaint originally was filed, also was listed as the music teacher at John Adams Middle School in the South Hills section of Charleston at the time. He also ran for a seat on Charleston City Council in 2018.
“Willard’s relentless pursuit of Elizabeth for his own sexual gratification turned Elizabeth’s high school years into a nightmare,” the complaint states. “A 16-year-old student cannot consent to sex with her adult teacher/band director.”
In a statement to The West Virginia Record at the time, Willard denied Vestal's claims.
"These allegations are a complete and total fabrication," he said. "They are absolutely not true. These shocking and false allegations date back almost 20 years to when I was in my first job out of college.
"I will most certainly defend against these claims and am confident I will be vindicated."
Vestal claims she suffered personal injuries and damages, including but not limited to past and future pain, suffering and mental anguish, past and future lost enjoyment of life, past and future humiliation, embarrassment, indignity and shame, economic damages, diminished earning capacity and future lost wages.
She seeks compensatory damages for her special and general injuries, permanent physical injuries, past and future pain, suffering and mental anguish, past and future lost enjoyment of life, past and future humiliation, embarrassment, indignity, shame, and economic damages, diminished earning capacity, and future lost wages, attorney fees, court costs and other relief.
Vestal is being represented by Miller and Teresa Toriseva of Toriseva Law in Wheeling. The school board is being represented by Duane Ruggier II and Evan Olds of Pullin Fowler Flanagan Brown & Poe in Charleston. Willard is represented by Jennifer F. Tully of Bailey and Wyant in Charleston.
West Virginia Supreme Court of Appeals case number 24-163 (Logan Circuit Court case number 23-C-10)
