                                                                               FILED
                                                                            June 8, 2016
No. 14-1266 – Painter v. Ballard                                             released at 3:00 p.m.
                                                                           RORY L. PERRY II, CLERK

                                                                         SUPREME COURT OF APPEALS

                                                                              OF WEST VIRGINIA

Chief Justice Ketchum, dissenting:


             West Virginia Code § 25-1-3c(c)(1) [2005] instructs: “The warden shall

deduct from the earnings of each inmate, legitimate court-ordered financial obligations. .

. . The Commissioner of the Division of Corrections shall develop a policy that outlines

the formula for the distribution of the offender’s income[.]” (Emphasis added).

Following this legislative directive, the Division of Corrections enacted Policy Directive

111.06(III), which excluded funds provided to an inmate from family or friends from

being deducted by the warden. Policy Directive 111.06 states:


             Earnings: All sums of money paid to an inmate on account of
             any work assignment, or other allowable means by which an
             inmate may be compensated for work performed or goods
             sold, including earnings from work in correctional industries
             and indigent pay. Earning shall also include 40% of the
             proceeds from any arts and crafts sale. Earnings shall further
             include all sums of money received by the inmate on account
             of a settlement of a lawsuit; civil judgment; or other lawful
             process, inheritance, bequest, gift, except funds provided the
             inmate by family or friends. Earnings shall not include sums
             deducted for mandatory savings.
(Emphasis added). Thus, under Policy Directive 111.06, money sent to an inmate from

his/her family or friends does not constitute “earnings” and may not be deducted by the

warden for the purposes outlined in W.Va. Code § 25-1-3c.


             In the present case, Mr. Painter received $25.00 “from home” and the

warden deducted 40% of this gift ($10.00). I believe that this Court should have applied



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the plain language of Policy Directive 111.06 and ruled that the warden was not

permitted to deduct 40% of the funds Mr. Painter received “from home.”


             Based on the foregoing, I respectfully dissent.




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