Jarvis v. West Va. State Police
| Decision Date | 18 November 2010 |
| Docket Number | No. 35444.,35444. |
| Citation | 227 W.Va. 472,711 S.E.2d 542 |
| Parties | Betty JARVIS, Plaintiff Below, Appelleev.WEST VIRGINIA STATE POLICE, D.M. Nelson, A.S. Perdue, and C.E. Akers, Defendants Below, AppellantsandWanda Carney, Plaintiff Below, Appelleev.West Virginia State Police, D.M. Nelson, A.S. Perdue, and C.E. Akers, Defendants Below, Appellants. |
| Court | West Virginia Supreme Court |
1. “Ordinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.” Syllabus Point 2, State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 460 S.E.2d 54 (1995).
2. “A circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doctrine.” Syllabus Point 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009).
3. Syllabus Point 4, McNair v. Erwin, 84 W.Va. 250, 99 S.E. 454 (1919).
4. A plaintiff who brings a cause of action alleging that he or she was criminally prosecuted in retaliation for exercising a right protected by the state or federal constitution must plead and prove as an element of the cause of action that there was an absence of probable cause to support the criminal prosecution.
5. In a claim for retaliatory prosecution in which a plaintiff alleges that he or she was criminally prosecuted in retaliation for exercising a right protected by the state or federal constitution, a grand jury indictment is prima facie evidence of probable cause for the underlying criminal prosecution, and a plaintiff may rebut this evidence by showing that the indictment was procured by fraud, perjury, or falsified evidence.
6. “A judgment of conviction ... although reversed on writ of error and the accused discharged from further prosecution on remand of the case, is conclusive evidence of probable cause for believing the accused guilty of the offense charged to him, unless the conviction was procured by fraud; and on plaintiff in an action for malicious prosecution devolves the duty of averring and by convincing proof showing such fraud by other undue means.” Syllabus Point 1, Haddad v. Railway Co., 77 W.Va. 710, 88 S.E. 1038 (1916).
7. “In the absence of an insurance contract waiving the defense, the doctrine of qualified or official immunity bars a claim of mere negligence against a State agency not within the purview of the West Virginia Governmental Tort Claims and Insurance Reform Act, W. Va.Code § 29–12A–1, et seq. , and against an officer of that department acting within the scope of his or her employment, with respect to the discretionary judgments, decisions, and actions of the officer.” Syllabus Point 6, Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).
Michael D. Mullins, Esq., Robert L. Bailey, Esq., Steptoe & Johnson, Charleston, WV, for Appellants.Lonnie C. Simmons, Esq., Robert M. Bastress, III, Esq., DiTrapano, Barrett & Dipiero, Charleston, WV, for Appellees.
The appellants, West Virginia State Police and State Troopers D.M. Nelson, A.S. Perdue, and C.E. Akers, appeal the August 4, 2009 order of the Circuit Court of Kanawha County that denied the appellants' motion to dismiss a complaint filed against them by the appellees, Betty Jarvis and Wanda Carney, alleging claims for retaliatory prosecution and negligence. For the reasons explained below, we reverse the circuit court's order.
In 2004, the West Virginia State Police, an appellant herein, began conducting a major drug enforcement investigation in Mingo County. In connection with the investigation, Carla Collins became a cooperative witness for the state police. Subsequently, Ms. Collins was killed and her body was discovered in a makeshift grave near an abandoned trailer. It was later determined that Valerie Friend murdered Ms. Collins in April 2005, at the direction of George “Porgie” Lecco.
The federal government charged several individuals with various crimes in connection with Ms. Collins' murder including George Lecco, Valerie Friend, and Walter Harmon. Mr. Harmon was represented by Lawyer Michael T. Clifford. Mr. Clifford employed Appellee Wanda Carney as an investigator. Appellee Betty Jarvis, an aunt of Mr. Harmon, offered to assist Mr. Clifford and Ms. Carney in connection with providing a defense for her nephew.
As part of Ms. Carney's investigation, she spoke to Carmella Blankenship and Valerie Friend. Both women told Ms. Carney that Mr. Harmon was not present at the murder of Ms. Collins. Ms. Carney also learned from her investigation that the police were allegedly involved in the drug trafficking under investigation and that State Trooper D.M. Nelson, an appellant herein, was rumored to have had a sexual relationship with Ms. Collins.
The State subsequently indicted Ms. Carney and Ms. Jarvis for obstructing a police officer and conspiracy to obstruct a police officer. The evidence the State relied upon in obtaining an indictment and at trial was that the two women had hindered the police investigation into Ms. Collins' murder by removing Carmella Blankenship from Mingo County and thereby delaying a police interview with Ms. Blankenship. The State further alleged that the appellees made derogatory remarks about the police to a material witness, Alola Boseman, that affected Ms. Boseman's ability to trust the police. Finally, it was alleged by the State that the appellees committed trespass and removed certain items having relevance to the case from the house where Ms. Friend resided prior to the murder.
In September 2006, a jury convicted Ms. Carney and Ms. Jarvis of obstruction and conspiracy to commit obstruction. The two women appealed to this Court, and in State v. Carney, 222 W.Va. 152, 663 S.E.2d 606 (2008), this Court reversed the convictions due to insufficiency of the evidence. This Court found that the obstruction statute requires that the defendant's conduct be either with force or unlawful. Upon application of the statute to the evidence below, the Court determined that Ms. Carney's and Ms. Jarvis's conduct was not unlawful. With regard to the alleged derogatory comments made by the women, this Court found that the comments were protected speech for which the appellees could not be prosecuted.
After the reversal of their convictions, the appellees brought in Kanawha County Circuit Court claims for retaliatory prosecution and negligence against the West Virginia State Police and State Troopers D.M. Nelson, A.S. Perdue, and C.E. Akers. With regard to the retaliatory prosecution claim, the appellees assert that their arrest and conviction was in retaliation for exercising their constitutional rights.1
The appellants thereafter moved to dismiss the complaints on the basis that the appellees failed to state a cognizable constitutional tort claim for retaliatory prosecution. The appellants also argued that they cannot be held liable under the doctrine of qualified immunity. Finally, the appellants posited that the appellees have no cognizable claim for negligence.
In its August 4, 2009 order, the circuit court denied the appellants' motion to dismiss. The appellants now appeal the circuit court's order.
This appeal arises from the circuit court's denial of a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. “Ordinarily the denial of a motion for failure to state a claim upon which relief can be granted made pursuant to West Virginia Rules of Civil Procedure 12(b)(6) is interlocutory and is, therefore, not immediately appealable.” Syllabus Point 2, State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 239, 460 S.E.2d 54 (1995). However, in Syllabus Point 2 of Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660 (2009), this Court held that “[a] circuit court's denial of summary judgment that is predicated on qualified immunity is an interlocutory ruling which is subject to immediate appeal under the ‘collateral order’ doctrine.” 2 Because the instant order denying a motion to dismiss is an interlocutory order that is predicated in part on qualified immunity, we find that the order is subject to immediate appeal under our holding in Robinson. We will review the order to dismiss under a de novo standard. See Syllabus Point 4, Ewing v. Board of Educ., 202 W.Va. 228, 503 S.E.2d 541 (1998) ().
On appeal to this Court, the appellants assign error in the circuit court's failure to hold that a plaintiff alleging retaliatory prosecution against the police must allege and prove lack of probable cause to prosecute. The circuit court, in finding that the appellees have asserted a viable state constitutional tort claim, applied Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy is an employment case in which the plaintiff alleged adverse conduct for exercising his rights under the First and Fourteenth Amendments. In that case, the Supreme Court explained:
[T]he burden [is] properly placed upon [plaintiff] to show that his conduct was constitutionally protected, and that this conduct was a substantial factor-or, to put it in other words, that it was a motivating factor in the Board's...
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