Adrian Osborne v. Kevin Mace, M.D., Montana Boyce, R.N., United Hospital Center, Inc., and West Virginia University Board of Governors (Judge White, concurring)

No. 25-ICA-72 - Adrian Osborne v. Kevin Mace, M.D., Montana Boyce, R.N., United
              Hospital Center, Inc., and West Virginia University Board of Governors
                                                                                   FILED
                                                                        November 12, 2025
                                                                               released at 3:00 p.m.

WHITE, Judge, concurring:                                              ASHLEY N. DEEM, CHIEF DEPUTY CLERK
                                                                         INTERMEDIATE COURT OF APPEALS
                                                                                OF WEST VIRGINIA

              I concur with Judge Greear’s opinion and its sound reasoning regarding the

application of the rational basis test to § 55-7B-4(c). I am writing a concurrence in order to

further develop why Whitlow v. Board of Education of Kanawha County, 190 W. Va. 223,

438 S.E.2d 15 (1993) is not outcome determinative of this case.




              Petitioner argues, for good reason, that Whitlow requires courts to apply the

rational basis test in a way that would hold § 55-7B-4(c) to violate the Equal Protection

Clause in Section X of Article III of the West Virginia Constitution just as Whitlow held

that § 29-12A-6(b) violated the Equal Protection Clause. Respondents argued that the case

at hand is distinguishable from the case of Whitlow for a number of reasons and therefore

inapplicable. While I agree with the Petitioner for the most part that the facts in each case

are indistinguishable in any way that matters, I concur with the majority opinion because

the rational basis test that was applied in Whitlow is not in concurrence with the current

state of the law regarding the rational basis test as most recently espoused by the Supreme

Court of Appeals of West Virginia (“SCAWV”).




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              It is my firm belief that the court in Whitlow and its antecedents, see, e.g.,

State ex rel. Longanacre v. Crabtree, 177 W. Va. 132, 350 S.E.2d 760 (1986); O’Neil v.

City of Parkersburg, 160 W. Va. 694, 237 S.E.2d 504 (1977), set forth a rational basis test1

with a heightened level of scrutiny that is not consistent with the traditional rational basis

test that federal courts and many, if not most, state courts have typically utilized when

analyzing alleged Equal Protection violations. Obviously, the SCAWV is not obligated to

adopt the federal standard for rational basis review2 which is a very deferential standard as

eloquently outlined in the majority opinion and the recent SCAWV cases. In Whitlow,

Longanacre, and O’Neil, the court examined the purported reasons set forth for the

legislature enacting such legislation and found that the legislation violated the equal

protection clause because it did not agree that the statute would accomplish the goal of the




       1
         The “rational basis test” has also been described as a “rational relationship test.”
See, e.g., Appalachian Power Co. v. State Tax Dept. of W. Va., 195 W. Va. 573, 594, 466
S.E.2d 424, 445 (1995); Murray Energy Corp. v. Steager, 241 W. Va. 629, 643, 827 S.E.2d
417, 431 (“When an equal protection challenge is made involving economic rights,
the rational relationship test is utilized…”); Michael H. v. Gerald D., 491 U.S. 110, 131
(1989) (“We apply… the ordinary ‘rational relationship’ test to Victoria’s equal protection
challenge.”).
       2
         State courts are free to adopt a more expansive interpretation of their own equal
protection clauses than federal court interpretations of the equal protection clause of the
Fourteenth Amendment. See generally Oregon v. Hass, 420 U.S. 714, 719
(1975) (recognizing that “a state is free as a matter of its own law” to provide greater
protections than the federal constitution). The SCAWV, while frequently looking to federal
cases for guidance, has indicated that the state equal protection clause may be even broader
than its federal counterpart. See Marcus v. Holley, 217 W. Va. 508, 523, 618 S.E.2d 517,
532 (2005); Syl. Pt. 3, Robertson v. Goldman, 179 W. Va. 453, 369 S.E.2d 888 (1988).

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legislature. In other words, the SCAWV appeared to adopt a “rational basis with bite” test3

which allowed the court to overturn legislation if it did not agree that the classifications

created by the statute would actually accomplish the legitimate interest the state was

attempting to address.




              For example, in Whitlow, the court noted the “rational basis advanced for

West Virginia Code § 29-12A-6, was to limit potential litigation and, thereby, to assist

political subdivisions in obtaining affordable insurance” and further stated “We are

unwilling to find a rational basis for the legislative reduction of the tolling period for minors

in this case.” 190 W. Va. at 231, 438 S.E.2d at 23. This statement alone is in direct

contradiction to the language in State ex rel. W. Va. Secondary Sch. Activities Comm’n v.

Cuomo, 247 W. Va. 324, 334, 880 S.E.2d 46, 56 (2022) which stated “[a]t the very least,

this rationale is debatable, which is all that rational basis requires for us to uphold the

Residence-Transfer Rule” when talking about the basis advanced for requiring in-state

students to sit out a year from athletics while allowing out-of-state students to play sports

without sitting out.




       3
        “Rational basis with bite,” has also been referred to as “rational basis with teeth”
and “meaningful rational basis.” See Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund,
701 N.W.2d 440, 462 (Wis. 2005), overruled, Mayo v. Wis. Injured Patients and Families
Comp. Fund, 914 N.W.2d 678 (Wis. 2018). For a good general discussion of “rational basis
with bite,” see Jennifer Jolly-Ryan, Ebolamania and Equal Protection of Health Care
Workers Under Rational Basis with Bite Review, 120 W. Va. L. Rev. 575 (2017).
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              It appears that sometime after Whitlow, the SCAWV altered its course

regarding the rational basis with bite analysis that was clearly utilized in Whitlow,

Longanacre, and O’Neil. In Marcus v. Holley, 217 W. Va. 508, 618 S.E.2d 517 (2005), the

court referenced a more deferential standard by citing the United States Supreme Court’s

Schweiker v. Wilson, 450 U.S. 221 (1981) opinion when it stated: “This inquiry employs a

relatively relaxed standard reflecting the Court’s awareness that the drawing of lines that

create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in

making the necessary classification is neither possible nor necessary.” Id. at 524, 618

S.E.2d at 533. The court in Marcus v. Holley also opined that the legislature need not

articulate a rationale supporting its classification; it was sufficient if there was “any

reasonably conceivable state of facts that could provide a rational basis for the

classification.” Id. at 523, 618 S.E.2d at 532 (quoting Heller v. Doe, 509 U.S. 312, 320

(1993)). Furthermore, “in the process of determining whether a legitimate governmental

purpose exists, ‘the court may even hypothesize the motivations ... to find a legitimate

objective.’” Id. at 525, 618 S.E.2d at 534 (quoting Malmed v. Thornburgh, 621 F.2d 565,

569 (3d Cir. 1980)). The Court used similar language in Murray Energy Corporation v.

Steager, 241 W. Va. 629, 644, 827 S.E.2d 417, 432 (2019) stating that “the Equal Protection

Clause is satisfied so long as there is a plausible policy reason for the classification.”




              Finally, the language used in the SSAC case makes clear that the highly

deferential standard adopted by the United States Supreme Court should be utilized when


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a court in West Virginia applies the rational basis test. In SSAC, the court declared that

courts “must independently consider whether there is any conceivable rational basis for the

classification, regardless of whether the reason ultimately relied on is provided by the

parties or the court.” Id. at 334 n.6, 880 S.E.2d at 56 n.6 (citing Teigen v. Renfrow, 511 F.3d

1072, 1084 (10th Cir. 2007); and Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 146 (1st Cir.

2001) (recognizing that even if the government's stated justification for enforcing a

regulation is insufficient to uphold the rationality of the regulation, a court has the

obligation to seek out other conceivable reasons validating the regulation).




              The SSAC court also repeatedly quoted federal precedent concerning the

deferential nature of the rational basis test, noting that “[a] plaintiff challenging a statute

or rule under the rational basis test faces ‘a tremendous uphill battle,’” “[t]here is a ‘strong

presumption of validity’ when examining a statute under rational basis review, and the

burden is on the party challenging the validity of the legislative action to establish that the

statute is unconstitutional,” that “challenges to a statute or rule under rational basis review

rarely succeed,” and that “[i]n the ordinary case, a law will be sustained if it can be said to

advance a legitimate government interest, even if the law seems unwise or works to the

disadvantage of a particular group, or if the rationale for it seems tenuous.” 247 W. Va. at

333, 880 S.E.2d at 55. It also cautioned that “[t]o find that a rule or statute is

unconstitutional, it must be shown that the rule or statute is unconstitutional beyond a

reasonable doubt.” Id.


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              Accordingly, I believe the SCAWV in its more recent development of the

rational basis test in West Virginia implicitly overruled the way Whitlow, Longanacre, and

O’Neil applied the rational basis with bite test rather than using the traditional rational basis

test. The Whitlow court’s proclamation that “[c]arving suits by infants against political

subdivisions out of the general statutory tolling provisions can hardly be thought to

substantially diminish the number of suits filed,” 190 W. Va. at 231, 438 S.E.2d at 23, does

not comport with the deference our state Supreme Court has more recently stated the

rational basis test demands. It is my firm belief, under the current rational basis test as

established by the SCAWV, the decision in Whitlow might have gone the other way.4




       4
         Interestingly, one of the cases cited in Whitlow, the New Hampshire case of Carson
v. Maurer, 424 A.2d 825 (N.H. 1980) (per curiam), did not utilize the rational basis test to
strike down the statute in question. Instead, it applied a “more rigorous judicial scrutiny
than allowed under the rational basis test.” Id. at 830. However, since the parties agreed
the issue before us was solely whether the statute at hand violated the rational basis test,
our court should not examine whether such a heightened analysis is warranted in the case
at hand.
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