The West Virginia Supreme Court’s refusal this week to answer a certified question from the U.S. Fourth Circuit Court of Appeals, concerning the role of prescription drug sales in the state’s opioid epidemic, is like the kid in right field who doesn’t want the ball hit to him. Nervous, perhaps scared of dropping the ball, he backs away from responsibility. That’s not unlike what the majority did here. It’s disappointing and it’s a disservice to the people of West Virginia.

No one expects unanimous agreement on every issue, but we should expect our highest court to engage. Especially on matters as pressing as the opioid crisis.

The Fourth Circuit posed a fair and necessary question: Under West Virginia’s common law, can conditions caused by the distribution of a controlled substance constitute a public nuisance, and, if so, what are the elements of such a public nuisance claim?

A public nuisance is an act or condition that unreasonably interferes with the health, safety, peace, or convenience of the general public. This compared to a private nuisance limiting harm to specific individuals rather than the general public.

Justice Beth Walker, in her concurrence , raised a valid concern. She said the court lacks the full factual record needed for a reasoned analysis leaving it to guess. She warned of the danger in offering a conclusion that might later prove unfounded. But that concern, while real, doesn’t justify silence.

Ironically, the majority’s refusal means the Fourth Circuit will now be forced to make what’s called an “Erie guess” – a federal court’s best prediction of how a state’s high court would rule in the absence of binding precedent. One guess for another? Wouldn’t it be better for West Virginians to speak to West Virginia law?

Chief Justice Bill Wooton, joined by Judge Tera Salango (sitting by designation), argued in dissent. The court, Wooten said shrunk from its duty. “Our mandate is to resolve an issue, which is exactly what the Fourth Circuit has asked us to do,” he said.

The certified question, he explained, clearly falls within the parameters of West Virginia Code § 51-1A-3 , which allows our court to answer legal questions from federal or out-of-state courts when no controlling precedent exists. Wooton further noted that nothing in the law requires the certified question to resolve an entire case.

The Fourth Circuit is simply asking the court to weigh in on one crucial legal issue. That is, in fact, its job.

Fairness requires this caveat: one ruling should not define an entire court, or any one justice. Even the kid in right field deserves more than to be remembered for a single dropped ball. This court has worked hard to repair its reputation after past scandals (and yes, one still wonders what happened to that infamous $32,000 couch ).

But at a time when the court may soon be called upon to decide high-stakes constitutional questions – those surrounding HB 2755 or Governor Morrisey’s Executive Order 7-25 – West Virginians need to know their justices are ready to take the field, not hide from the play.