State ex rel. Billy Ray C. v. Skaff, 21894

• Decision Date: 15 December 1993
• Docket Number: No. 21894,21894
• Citation: 438 S.E.2d 847,190 W.Va. 504
• Parties: STATE of West Virginia ex rel. Billy Ray C., Jr., Relator, v. Major General Joseph J. SKAFF, Secretary, West Virginia Department of Military Affairs and Public Safety; Colonel Thomas L. Kirk, Superintendent of the West Virginia Division of Public Safety; and Larry Hite, David Shirlaw and Kelly George, Members of the West Virginia State Board of Risk and Insurance Management, Respondents.
• Court: West Virginia Supreme Court

Page 847

438 S.E.2d 847

190 W.Va. 504

STATE of West Virginia ex rel. Billy Ray C., Jr., Relator, v. Major General Joseph J. SKAFF, Secretary, West Virginia

Department of Military Affairs and Public Safety; Colonel

Thomas L. Kirk, Superintendent of the West Virginia Division

of Public Safety; and Larry Hite, David Shirlaw and Kelly

George, Members of the West Virginia State Board of Risk and

Insurance Management, Respondents.

No. 21894.

Supreme Court of Appeals of

West Virginia.

Submitted Nov. 2, 1993.

Decided Dec. 15, 1993.

Syllabus by the Court

1. " 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)." Syllabus Point 1, Smith v. West Virginia State Board of Education, 170 W.Va. 593, 295 S.E.2d 680 (1982).

2. "It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).

3. Under W.Va.Code, 15-2-21 (1977), a person who has been subjected to the use of excessive physical force by a State Police officer has the right to file a complaint with the Superintendent of the West Virginia Division of Public Safety. Under this same section, the Superintendent is required to investigate the complaint.

4. Implicit within the Superintendent of the West Virginia Division of Public Safety's mandatory duty to investigate allegations of misconduct under W.Va.Code, 15-2-21 (1977), there is a duty to promulgate formal, written investigation procedures. These procedures should outline (1) how a citizen may notify the Superintendent of alleged misconduct by a State Police officer, and (2) the specific procedure to be followed to ensure that a thorough investigation is conducted by an impartial and neutral party. These procedures also should require that a report of the investigation be given to the Superintendent on which to base his decision.

5. Under W.Va.Code, 29-12-5 (1986), which delegates to the West Virginia State Board of Risk and Insurance Management the authority to investigate and settle claims under the State's liability insurance, the Board of Risk is required to promulgate rules or regulations for State agencies covered by the State's liability insurance policy that will enable the Board to promptly identify potential liability claims against the State.

Daniel F. Hedges, Charleston, Franklin Cleckley, Morgantown, for relator.

Theresa Sage, Asst. Atty. Gen., South Charleston, for respondents Major General Joseph J. Skaff, Secretary, and Colonel Thomas L. Kirk, Superintendent.

Robert Nunley, Sr. Asst. Atty. Gen., Charleston, for respondent West Virginia State Bd. of Risk and Ins. Management.

MILLER, Justice:

In this original mandamus action, the relator, Billy Ray C., Jr., ¹ a seventeen-year-old juvenile, contends that two of the respondents, the Major General Joseph J. Skaff, Secretary of the West Virginia Department of Military Affairs and Public Safety (Secretary), and Colonel Thomas L. Kirk, Superintendent of the Division of Public Safety (Superintendent), violated his constitutional rights under Section 10 of Article III (due process) and Section 17 of Article III (open courts) of the West Virginia Constitution, by failing to provide the relator an opportunity to be heard in regard to his allegations of physical brutality against a State Police officer.

The relator also contends that the other respondents, members of the West Virginia State Board of Risk and Insurance Management (Board of Risk), have failed to create an adequate procedure to identify potential liability claims pursuant to W.Va.Code, 29-12-5 (1986); and that those same respondents have failed to require the other respondents, the Secretary and the Superintendent, to file with the Board of Risk statutorily required forms describing the activities and responsibilities engaged in by the agencies under their control pursuant to W.Va.Code, 29-12-6.

The relator in his petition states that he was the victim of an unwarranted physical attack by a State Police officer. After the incident, he sent a letter to the State Police headquarters alleging that he had been "beat up" by the officer, ² and requesting that "some action" be taken against the officer. The relator contends that an officer from the same detachment as the abusive officer, and who also has a reputation for brutality, was assigned to investigate the relator's allegations. The relator claims that the investigating officer threatened him with further charges if he did not withdraw the complaint against the abusive officer. The relator also states that a second officer was then assigned to investigate the allegations, but that no action was taken against the abusive officer. The respondents neither admit nor deny these charges.

The relator seeks the issuance of a writ of mandamus against the Secretary and the Superintendent ordering them to create a system whereby allegations of misconduct against State Police officers are investigated by an impartial entity. He also seeks a writ of mandamus compelling the Board of Risk to issue rules and regulations under W.Va.Code, 29-12-5, requiring the West Virginia Division of Public Safety to provide the Board with necessary information relating to incidents that expose the State to potential liability under its liability insurance policy.

I.

In Syllabus Point 1 of Smith v. West Virginia State Board of Education, 170 W.Va. 593, 295 S.E.2d 680 (1982), we stated our traditional criteria regarding the issuance of a writ of mandamus:

" 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)."

We went on to state in Smith:

"Our rule regarding utilization of a writ of mandamus must be read against the back drop of Judge Haymond's statement in Carter v. City of Bluefield, 132 W.Va. 881, 897, 54 S.E.2d 747, 757 (1949):

'The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it, in order to afford the relief a party is entitled to when there is no other adequate and complete legal remedy.' "

170 W.Va. at 595, 295 S.E.2d at 683.

With the foregoing in mind, we turn to the grievances alleged and the relief sought by the relator.

II.

The relator seeks a writ of mandamus to compel the Secretary and the Superintendent to create an impartial procedure for the investigation of allegations of abuse on the part of State Police officers. Addressing first the question of the relator's clear legal right to the foregoing relief, we note that whether one has a clear legal right to relief "is generally a question of standing. Thus, where the individual has a special interest in the sense that he is part of the class that is being affected by the action then he ordinarily is found to have a clear legal right." Smith v. West Virginia State Bd. of Educ., 170 W.Va. at 596, 295 S.E.2d at 683 (Citation omitted). The relator partially bases his claim to relief upon W.Va.Code, 15-2-21 (1977), which states, in pertinent part:

"The superintendent may suspend, demote in rank or discharge from the service any member of the department of public safety for any of the following causes: Refusing to obey the lawful orders of his superior officer, neglect of duty, drunkenness, immorality, inefficiency, abuse of his authority, interference with the lawful right of any person, participation in political activities, primaries, conventions or elections, conviction for a crime or any action proscribed under this article. The superintendent shall cause an investigation to be made when notice of any one or more of such causes is brought to his attention and shall determine whether or not the member should be suspended, demoted in rank or discharged." (Emphasis added).

We find that W.Va.Code, 15-2-21, gives the relator a right to bring to the attention of the Superintendent any of the statutorily enumerated causes that warrant the suspension, demotion in rank, or discharge of a State Police officer. One of the enumerated causes therein is "abuse of his authority[.]" Courts have recognized that the use of excessive force by a police officer constitutes an abuse of authority. See Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Martin v. Gentile, 849 F.2d 863 (4th Cir.1988); Clark v. Beville, 730 F.2d 739 (11th Cir.1984); Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991); State v. Wright, 310 Or. 430, 799 P.2d 642 (1990). Cf. Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980) (prison guards' abuse of prisoners).

The right of the relator to bring allegations of abuse by a State Police officer to the attention of the Superintendent is entwined with a legal duty that the Superintendent must perform. Under the foregoing Code section, the Superintendent, upon receipt of notice, "shall cause an investigation to be made" of the allegations against the officer. W.Va.Code, 15-2-21. The use of the word "shall" traditionally is given a mandatory connotation in this jurisdiction. As stated in Syllabus Point 1 of Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982):

"It is well established that the word 'shall,' in the absence of language in the statute showing a contrary...