Lewis v. W. Va. Supreme Court of Appeals
| Decision Date | 05 December 2013 |
| Docket Number | Civil Action No. 2:13–cv–13110. |
| Citation | 985 F.Supp.2d 776 |
| Parties | Quincy Gray McMichael LEWIS, Plaintiff, v. WEST VIRGINIA SUPREME COURT OF APPEALS, Defendant. |
| Court | U.S. District Court — Southern District of West Virginia |
OPINION TEXT STARTS HERE
R. Brandon Johnson, Stroebel & Johnson, Lewisburg, WV, Randy Burton, Burleson, Houston, TX, Wendy J. Murphy, New England Law Boston, Boston, MA, for Plaintiff.
Joseph V. Schaeffer, Spilman Thomas & Battle, Morgantown, WV, Neva G. Lusk, Spilman Thomas & Battle, Charleston, WV, for Defendant.
The plaintiff in this case disagrees with a decision by the Supreme Court of Appeals of West Virginia (“SCAWV”) and asks this court to declare that decision unconstitutional and enjoin its enforcement. But the plaintiff cannot sue the SCAWV or its justices because the plaintiff disagrees with its decision. If the plaintiff disagrees with a SCAWV decision, she may file a petition for a writ of certiorari with the United States Supreme Court. She did that. Accordingly, for bringing this lawsuit when it is clearly barred by the Eleventh Amendment to the United States Constitution, and for the reasons set forth in this opinion, the plaintiff's counsel, Wendy J. Murphy, is SANCTIONED in the amount of $450, with payment to be made to the court within sixty (60) days of this Order.
In this case, the plaintiff seeks to challenge State ex rel. J.W. v. Knight, 223 W.Va. 785, 679 S.E.2d 617 (2009), where the SCAWV upheld a court-ordered gynecological examination of the alleged victim in a criminal sexual assault case. The plaintiff, who was not a party to that case, brought the instant action against the SCAWV “in its official capacity only” to enjoin enforcement of State ex rel. J.W. v. Knight. . The plaintiff further sought a declaratory judgment holding State ex rel. J.W. v. Knight unconstitutional. ( Id. at 13). On October 21, 2013, I determined that the plaintiff's suit was barred by the Eleventh Amendment and accordingly dismissed it. ( SeeMem. Op. & Order, 983 F.Supp.2d 768, 2013 WL 5720137 (S.D.W.Va.2013) [Docket 17] ). I further ordered the plaintiff's counsel to show cause why they should not be sanctioned under Rule 11 of the Federal Rules of Civil Procedure for bringing this lawsuit. ( See id.).
To adequately explain my decision to sanction the plaintiff's counsel, I will describe the SCAWV decision at issue. I will also describe the plaintiff's counsel's litigation strategy challenging that decision in this court.
In State ex rel. J.W. v. Knight, two brothers were charged with various acts of sexual abuse against their sister, J.W., a fifteen year-old minor. 223 W.Va. 785, 679 S.E.2d 617, 618 (2009). One of the brothers, Jason Wilson, moved the trial court for a physical examination of J.W. to determine whether any physical penetration or intercourse had occurred. Id. at 619. In deciding Jason Wilson's motion, the trial court applied the six-part test set out in State v. Delaney, 187 W.Va. 212, 417 S.E.2d 903 (1992). That test enumerated the factors a trial court must consider before ordering a physical or psychological examination against a victim in a criminal case:
[T]he judge should consider (1) the nature of the examination requested and the intrusiveness inherent in that examination; (2) the victim's age; (3) the resultingphysical and/or emotional effects of the examination on the victim; (4) the probative value of the examination to the issue before the court; (5) the remoteness in time of the examination to the alleged criminal act; and (6) the evidence already available for the defendant's use.
Id. at 907. The trial court ultimately granted Jason Wilson's motion after applying the Delaney test. State ex rel. J.W., 679 S.E.2d at 619. The trial court found that the gynecological examination sought was not overly intrusive given J.W.'s age and the fact that the examination was less extensive than those administered to women in the general population for health purposes. Id. at 619, 621. The trial court also found that the evidence sought by Jason Wilson was not otherwise available and that the examination was not too remote in time from the alleged abuse. Id. at 621.
After the trial court ordered J.W. to undergo the physical examination, the state prosecutor sought a writ of prohibition from the SCAWV to prevent the examination from going forward. Id. at 618. The only issue the SCAWV considered was whether the trial court had applied the Delaney test correctly. Id. at 618. On that issue, the SCAWV held that the trial court had properly applied the Delaney test “under the facts of this particular case.” Id. at 622. The court did not consider any federal constitutional issues.
Following the SCAWV decision, J.W., through counsel Wendy J. Murphy, sought a writ of certiorari to the United States Supreme Court. Her petition stated the following two issues:
I. Whether it violates the Supremacy Clause for a state court to order a minor rape victim to submit to a penetrating pelvic examination, where the court lacks constitutional authority to issue such an order and the minor victim has a federal constitutional right to refuse to submit?
II. Whether it violates the Due Process Clause for a state court to order a child rape victim to submit to a penetrating pelvic examination at the behest of a criminal defendant?
Petition for a Writ of Certiorari, J.W. v. Knight, 2009 WL 2491812 (No. 09–191). The petition was denied on October 20, 2009. See J.W. v. Knight, 558 U.S. 970, 130 S.Ct. 461, 175 L.Ed.2d 308 (2009).
In November 2009, after denial of the petition for writ of certiorari, J.W., again through counsel Wendy J. Murphy, filed a new federal lawsuit in this court to enjoin enforcement of the original trial court order. That suit was dismissed as moot after the criminal defendant, Jason Wilson, pleaded guilty. J.W. appealed the dismissal to the Fourth Circuit. While that appeal was pending, the defendant withdrew his guilty plea in the underlying criminal action and the Fourth Circuit remanded the case. On remand, the suit was again dismissed as moot after it was revealed that J.W. had voluntarily undergone the disputed physical examination. See J.W. v. Knight, No. 1:09–CV–01277, 2011 WL 1137341 (S.D.W.Va. Mar. 24, 2011), aff'd,452 Fed.Appx. 411 (4th Cir.2011).
The instant case was brought by plaintiff Quincy Gray McMichael Lewis, a twenty-seven-year-old female resident of West Virginia. (Compl. [Docket 1], ¶ 21). The plaintiff, however, is not the subject of any court-ordered physical examination. Rather, she purported to bring a class action “for herself and on behalf of a class of ... [a]ll natural persons residing in West Virginia that are at risk for sexual victimization[.]” ( Id.). This class arguably would include every person living in the state of West Virginia. The Complaint alleges several constitutional violations based on the “ongoing vitality” of J.W. ( Id. ¶¶ 31–49).
The SCAWV moved to dismiss. I granted the defendant's motion on the basis that this court lacked subject matter jurisdiction under the Eleventh Amendment. . Because I found that the Eleventh Amendment clearly barred this suit, I ordered the plaintiff's counsel to submit a memorandum explaining why the plaintiff's “claims ... and other contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed.R.Civ.P. 11(b)(2).
The memorandum filed in response to my Order [Docket 19] was submitted by only Wendy J. Murphy, and was not joined by the other attorneys representing the plaintiff in this case. This memorandum uses a first person narrative to describe Ms. Murphy's credentials and her personal motivations for filing this lawsuit. Additionally, the memorandum attached a letter from a former judge, who discusses Ms. Murphy specifically. The other two attorneys representing the plaintiff did not respond to my Order. Although Rule 11 would allow me to sanction each of the attorneys who represented the plaintiff in this case, Ms. Murphy's memorandum indicates that the substance of the Complaint and response to the motion to dismiss in this case were handled solely by Ms. Murphy. For this reason, only Ms. Murphy is sanctioned.
Pursuant to Rule 11 of the Federal Rules of Civil Procedure, lawyers certify that the legal contentions they make “are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law[.]” Fed.R.Civ.P. 11(b)(2). In the Fourth Circuit, “[a]n assertion of law violates Rule 11(b)(2) when, applying a standard of objective reasonableness, it can be said that a reasonable attorney in like circumstances could not have believed his actions to be legally justified.” In re Sargent, 136 F.3d 349, 352 (4th Cir.1998) (internal quotations omitted). However, merely “asserting a losing legal position ... is not of itself sanctionable conduct.” Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 151 (4th Cir.2002). According to the Advisory Committee Notes to Rule 11, “the extent to which a litigant has researched the issues and found some support for its theories even in minority opinions, in law review articles, or through consultation with other attorneys should certainly be taken into account in determining whether” the rule has been violated. Fed.R.Civ.P. 11 advisory committee note to 1993 Amendments.
“If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction” on the attorneys who violated the rule. Fed.R.Civ.P. 11(c)(1). But because a sua sponte show cause order deprives a lawyer...
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