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

• Court: Supreme Court of West Virginia
• Citation: 438 S.E.2d 847,190 W.Va. 504
• Docket Number: No. 21894,21894
• 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.
• Decision Date: 15 December 1993

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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.

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[190 W.Va. 505] 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

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[190 W.Va. 506] 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

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[190 W.Va. 507] 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...