By MATT HARVEY
The Exponent Telegram
CHARLESTON, W.Va. — A sharply divided state Supreme Court ruled Wednesday that the remains of a Medal of Honor recipient can be disinterred from the Cornstalk Wildlife Preserve and reburied with honor at the Donel C. Kinnard Memorial State Veterans Cemetery in Institute.
Justice Elizabeth D. Walker wrote the opinion for the majority. She was joined by Justices Robin Jean Davis and Menis E. Ketchum in affirming a ruling by Mason Circuit Judge David W. Nibert.
Chief Justice Allen H. Loughry II and Justice Margaret L.Workman filed dissenting opinions.
Walker noted that the record in the case showed no living blood relatives of Chester Howard West. West received the Medal of Honor in World War I and was buried in the Mason County cemetery of his wife’s family less than 17 years later, the victim of a homicide.
A living Medal of Honor recipient, Hershel Woodrow “Woody” Williams, proposed moving West from the cemetery, which had been made a part of the state preserve and become overgrown until a Scout and several helpers cleaned it up.
The family of West’s wife said the body should remain where it was.
Walker’s opinion noted that the cemetery had become overgrown and that “no one on Mr. West’s behalf has asserted any right to enter into the Cornstalk (Wildlife Management Area) to provide upkeep to the cemetery and particularly the gravesite of this Medal of Honor recipient.”
“On the other hand, upon discovery of Mr. West’s remains (by the Scouting project), Mr. Williams has expended time and energy to arrange for persons qualified to undertake Mr. West’s disinterment with dignity and care, transport his remains with honor, reinter them with full military honors, and provide perpetual care for his gravesite,” Walker wrote.
“We understand that (the family of West’s wife) has been denied the opportunity to enter Cornstalk WMA with the necessary equipment to keep the cemetery in the condition deserving of their loved ones,” Walker wrote. “The fact remains that the cemetery where he is buried is in a location where perpetual care is highly unlikely. Mr. Williams has demonstrated the integrity and capacity to provide a most suitable and deserving resting place for Mr. West’s remains.
“Accordingly, we hold that the Circuit Court of Mason County did not abuse its discretion in concluding that the equities favored the disinterment of the remains of Mr. West and granting the petition of Mr. Williams.”
Chief Justice Loughry cited a 1946 West Virginia Supreme Court opinion, Haudenschilt vs. Haudenschilt, in his dissenting opinion.
He noted that it found as “‘to the dead, who are not here to answer for themselves, it would be the height of injustice and cruelty to disturb their ashes, and violate the sanctity of the grave.’”
“Yet the majority of this Court,” Loughry wrote, has done just that and,in the process, they have opened Pandora’s Box.”
Loughry also pointed out there are other ways to honor West short of disinterment and reburial, including through setting a monument.
“Our nation’s (capital) is home to numerous monuments, such as the Washington Monument, the Jefferson Memorial, and the Lincoln Memorial,” wrote Loughry, whose opinion also noted just how poignant military cemeteries here and abroad are.
“Yet, President Washington is entombed at Mount Vernon; President Jefferson is buried at Monticello; and President Lincoln is entombed in Springfield, Illinois,” Loughry wrote.
He also cited the Vietnam Memorial in Washington, which contains the names of Americans who lost their lives as a result of the Vietnam War.
“Clearly, we honor the service and sacrifice of each person on the Wall even though their bodily remains were laid to rest elsewhere,” Loughry wrote.
Workman boiled the case down to being between the good intentions of Williams, who had no family relationship or personal connection with West, and the wishes of West’s widow and her heirs.
“This analysis is simplistic and to some appealing, but there is a major obstacle to this reasoning: The important concept in American jurisprudence called ‘standing, which the majority does not even address. … In this matter, despite his noble intentions, Mr. Williams lacks standing because he fails to articulate a legally cognizable interest and threatened or actual injury entitling him to remove Sgt. West’s remains,” Workman wrote.
Workman concluded by asking Williams to reconsider and leave the remains of West where they are.
“The most excellent way to honor our nation’s brave military heroes who sacrificed to preserve our freedoms is to follow the rule of law, without fear or favor,” Workman wrote. “The majority has failed to do so.”
Loughry also added this to his dissent: “I would caution lawyers engaged in estate work to apprise their clients — veterans and non-veterans alike — that if they wish their final resting place to be just that — final — their wish needs to be explicitly set forth in their testamentary papers with the caveat that their corporeal remains never be moved absent particularized circumstances.”
In other court news:
Harrison County Magistrate Keith Marple found probable cause for charges of possession with intent to deliver heroin and transportation of a controlled substance into the state against Douglas Allen Bonnell, 54, of Spelter.
The ruling sends the case to circuit court, where it could be presented to a grand jury as early as September.
Bonnell and Wendy Jean Leverton, 44, of Shinnston, traveled to Pittsburgh in late May, bought heroin there, then were arrested by State Police Senior Trooper Andrew Leach during a traffic stop on U.S. 19 in Enterprise, court documents allege. The trooper contends he found what’s believed to be over 150 heroin stamp bags in the vehicle.
Harrison Assistant Prosecutor John Lanham called Leach as the state’s only witness Wednesday. Harrison Assistant Defender Eric Householder represented Bonnell.
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