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In Fields, the Court first found that Section 6 did not expressly grant a private cause of action, nor did it meet the rigorous requirements to find an implied cause of action.
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No. 20-0183
11-18-2020
Cody Ryan FIELDS, Petitioner v. Ross H. MELLINGER, Individually and in His Capacity as a Deputy with the Jackson County, West Virginia, Sheriff's Department; Tony Boggs, Individually and in His Capacity as the Sheriff of Jackson County, West Virginia; and the Jackson County Commission d/b/a the Jackson County Sheriff's Department, Respondents
Lonnie C. Simmons, Luca D. DiPiero, DiPiero Simmons McGinley & Bastress, PLLC, Charleston, West Virginia, Michael T. Clifford, Charleston, West Virginia, Attorneys for the Petitioner. Wendy E. Greve, Drannon L. Adkins, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Attorneys for the Respondents.
Lonnie C. Simmons, Luca D. DiPiero, DiPiero Simmons McGinley & Bastress, PLLC, Charleston, West Virginia, Michael T. Clifford, Charleston, West Virginia, Attorneys for the Petitioner.
Wendy E. Greve, Drannon L. Adkins, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Attorneys for the Respondents.
Jenkins, Justice: The United States District Court for the Southern District of West Virginia presents the following certified question for resolution by this Court: "Does West Virginia recognize a private right of action for monetary damages for violations of Article III, Section 6 of the West Virginia Constitution ?" We have considered the parties briefs and oral arguments, the appendix record submitted, and extensive legal authority on this issue. We conclude that there is no private right of action for monetary damages for a violation of Article III, Section 6 of the West Virginia Constitution. Accordingly, we answer the certified question in the negative.
I.
FACTUAL AND PROCEDURAL HISTORY
On July 2, 2019, Cody Ryan Fields ("Mr. Fields") filed a complaint in the United States District Court for the Southern District of West Virginia ("district court") against Ross H. Mellinger, individually and in his capacity as a Deputy with the Jackson County, West Virginia, Sheriff's Department ("Deputy Mellinger"); Tony Boggs, individually and in his capacity as the Sheriff of Jackson County, West Virginia; and the Jackson County Commission d/b/a the Jackson County Sheriff's Department ("Sheriff's Department") (collectively "the Defendants"). The following state law claims are asserted by Mr. Fields in his complaint: constitutional tort, for violations of Article III, Sections 6, 10, and 17 of the West Virginia Constitution ; negligence in the hiring, retention, and/or supervision of employees; battery; and outrageous conduct/intentional infliction of mental, physical, and emotional distress. Additionally, the following federal law claims are asserted in the complaint by Mr. Fields: excessive force under United States Code title 42 section 1983 ; Monell and supervisory liability under United States Code title 42 section 1983 ; and unlawful conspiracy under United States Code title 42 sections 1983 & 1985.
Monell refers to Monell v. New York City Department of Social Services , 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), which held that
a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d 611.
In his complaint, Mr. Fields alleged the following facts:
5. On or about the 20th day of September[ ] 2017, defendant [Deputy] Mellinger, under the auspices of executing a search warrant upon the residence of Joseph Farrel ... near Ripley, Jackson County, West Virginia, confronted [Mr. Fields] in a detached garage with the front bay door open and told [Mr. Fields] to get on the ground. [Mr. Fields] was standing with his hands in the air and bending at the waist to get down when [Deputy] Mellinger, using deadly and excessive force, and not utilizing lesser means of command such as pepper spray, viciously struck [Mr. Fields] in the face with the butt end of a shotgun, all of which was without probable cause or provocation, and without any resistance whatsoever, causing facial injuries and knocking out several of [Mr. Fields’] teeth .... Thereafter, [Deputy] Mellinger told [Mr. Fields] that his teeth needed to come out anyway.
6. At the time of the attack by [Deputy] Mellinger, [Mr. Fields] was not under arrest, having committed no crime, he was being compliant, he was not attempting to flee, he was not attempting to assault or strike [Deputy] Mellinger[,] and he was not threatening to do so.
7. At the time [of the attack, Deputy] Mellinger had no reason to believe that [Mr. Fields] had committed or was committing any crime, in that [Mr. Fields] was situate in an open garage, detached from the residence [that] the defendant had a warrant to search and, apparently, did not search at that date and time. [Deputy Mellinger] had no reason to believe [Mr. Fields] was in possession of any weapons and never inquired of [Mr. Fields] whether he was in possession of any weapons prior to attacking him. Indeed [Deputy] Mellinger never inquired of [Mr. Fields] who he was and what he was doing in the garage.
According to the complaint, Mr. Fields was then placed under arrest for obstruction and simple possession. Mr. Fields repeatedly attempted to have a suppression hearing related to the charges, but the State's witnesses were continually unavailable. Accordingly, the charges were dismissed by the Jackson County Magistrate Court.
The Defendants ultimately filed a partial motion to dismiss, which, relevant to this certified question, sought dismissal of Mr. Fields’ claim for relief under the West Virginia Constitution, asserting that state constitutional claims are not supported by the law. Following Mr. Fields’ response to the motion, the Defendants’ reply, and a telephonic conference, the district court took the Defendants’ partial motion to dismiss under advisement and directed the parties to submit a proposal for certified question. By "Order of Certification" filed on March 4, 2020, the district court submitted its certified question to this Court. We accepted the certified question and placed this matter on the docket for argument under Rule 20 of the West Virginia Rules of Appellate Procedure.
II.
STANDARD OF REVIEW
We exercise plenary review of a question certified by a federal district court: " ‘A de novo standard is applied by this Court in addressing the legal issues presented by a certified question from a federal district or appellate court.’ Syllabus Point 1, Light v. Allstate Ins. Co. , 203 W. Va. 27, 506 S.E.2d 64 (1998)." Syl. pt. 1, Martinez v. Asplundh Tree Expert Co. , 239 W. Va. 612, 803 S.E.2d 582 (2017). See also Syl. pt. 1, Bower v. Westinghouse Elec. Corp. , 206 W. Va. 133, 522 S.E.2d 424 (1999) ("This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court."). Applying this standard, we proceed to answer the question herein certified.
III.
DISCUSSION
In this proceeding, we are presented with the following question certified by the district court:
Does West Virginia recognize a private right of action for monetary damages for violations of Article III, Section 6 of the West Virginia Constitution ?
Because our answer to this question requires constitutional analysis, we begin by reviewing this Court's role as it relates to matters of constitutional interpretation.
This Court previously has recognized that
[a] constitution is the fundamental law by which all people of the state are governed. It is the very genesis of government. Unlike ordinary legislation, a constitution is enacted by the people themselves in their sovereign capacity and is therefore the paramount law. This basic organic law can be altered or rewritten only in the manner provided for therein.
State ex rel. Smith v. Gore , 150 W. Va. 71, 77, 143 S.E.2d 791, 795 (1965). For this reason, "[c]ourts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution." Syl. pt. 3, State ex rel. Casey v. Pauley , 158 W. Va. 298, 210 S.E.2d 649 (1975). See also Syl. pt. 3, Diamond v. Parkersburg-Aetna Corp. , 146 W. Va. 543, 122 S.E.2d 436 (1961) ("The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it."). Thus, as we recently acknowledged, the Court bears the " ‘task of interpreting the Constitution and the laws of this State as they exist.’ " State v. Smith , 243 W.Va. 470, ––––, 844 S.E.2d 711, 719 (2020) (quoting W. Va. Bd. of Educ. v. Bd. of Educ. of the Cty. of Nicholas , 239 W. Va. 705, 721, 806 S.E.2d 136, 152 (2017) (additional quotations and citation omitted)). In other words,
[a]lthough this Court is vested with the authority "to construe, interpret and apply provisions of the Constitution, ... [we] may not add to, distort or ignore the plain mandates thereof." State ex rel. Bagley v. Blankenship , 161 W. Va. 630, 643, 246 S.E.2d 99, 107 (1978). Thus, "[i]f a constitutional provision is clear in its terms, and the intention of the electorate is clearly embraced in the language of the provision itself, this Court must apply and not interpret the provision." Syl. pt. 1, State ex rel. Trent v. Sims , 138 W. Va. 244, 77 S.E.2d 122 (1953). On the other hand, "if the language of the constitutional provision is ambiguous, then the ordinary principles employed in statutory construction must be applied to ascertain such intent." State ex rel. Forbes v. Caperton , 198 W. Va. 474, 480, 481 S.E.2d 780, 786 (1996) (internal quotations and citations omitted).
State ex rel. Morrisey v. W. Va. Office of Disc. Counsel , 234 W. Va. 238, 255, 764 S.E.2d 769, 786 (2014). See also Syl. pt. 1, Winkler v. State Sch. Bldg. Auth. , 189 W. Va. 748, 434 S.E.2d 420 (1993) ("Questions of constitutional construction are in the main governed by the same general rules applied in statutory construction."). Even where a provision is found to be ambiguous, it "requires interpretation consistent with the intent of both the drafters and the electorate." State ex rel. Brotherton v. Blankenship , 157 W. Va. 100, 127, 207 S.E.2d 421, 436-37 (1973) (Neely, J., dissenting).
Turning to the question at hand, "[a]s in every case involving the application or interpretation of a constitutional provision, analysis must begin with the language of the constitutional provision itself." State ex rel. Mountaineer Park, Inc. v. Polan , 190 W. Va. 276, 283, 438 S.E.2d 308, 315 (1993). Under Article III, Section 6 of the West Virginia Constitution,
[t]he rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.
Mr. Fields seeks monetary compensation under this provision for personal injuries allegedly resulting from the use of excessive force by officers of the Sheriff's Department. Patently absent from this provision is any allowance for a private right of action for monetary damages. Thus, we must determine whether a private right of action corresponds with the intent of the drafters and the electorate of our constitution. Mr. Fields observes that, in two other contexts, this Court has acknowledged a private cause of action for damages arising from a constitutional violation. He first cites to this Court's opinion in Fox v. Baltimore & Ohio R.R. Co. , 34 W. Va. 466, 12 S.E. 757 (1890), in which it was held that,
[i]n an action brought to recover damages under section 9 of Article III of the constitution, as compensation for permanent injury to real estate by the construction of a railroad upon a street adjacent to such property, it is proper for the owner to bring an action for trespass on the case, and he may count for permanent damages and recover the same according to the evidence, although, when the injury occurred, he was not in the actual occupancy of the property, but was in constructive possession of the same through his tenant under a lease.
Syl. pt. 1, id. The Fox Court, in turn, relied upon the case of Johnson v. City of Parkersburg , 16 W. Va. 402 (1880), in which the Court held that,
[w]hen the Constitution forbids a damage to private property and points out no remedy, and no statute gives a remedy for the invasion of the right of property thus secured, the common law, which gives a remedy for every wrong, will furnish the appropriate action for the redress of such grievances.
Syl. pt. 3, id. (second emphasis added). Notably, unlike Article III, Section 6, which is at issue herein, Article III, Section 9, which the Court addressed in its prior holdings, guarantees "just compensation":
"Private property shall not be damaged or taken for public use without just compensation; nor shall the same be taken by any company incorporated for the purpose of internal improvement until just compensation shall have been paid or secured to be paid to the owners; and, when private property shall be taken or damaged for public use or for the use of such corporations, the compensation to the owner shall be ascertained in such manner as may be prescribed by general law."
Fox , 34 W. Va. at 470, 12 S.E. at 759 (quoting W. Va. Const. art. III, § 9). Additionally, under the holding in Johnson , a remedy will be judicially created only where "no statute gives a remedy for the invasion of the right." Syl. pt. 3, in part, Johnson , 16 W. Va. 402. As we will explain in more detail below, alternate remedies for Mr. Fields’ alleged injuries are available. Accordingly, we find this line of cases does not counsel us to create a private cause of action for a violation of Article III, Section 6 of the West Virginia Constitution.
Mr. Fields additionally points to a second occasion when this Court acknowledged a private cause of action for a constitutional violation. See Hutchison v. City of Huntington , 198 W. Va. 139, 479 S.E.2d 649 (1996). Hutchison addressed a violation of the Due Process Clause of Article III, Section 10 of the West Virginia Constitution, and held:
Unless barred by one of the recognized statutory, constitutional or common law immunities, a private cause of action exists where a municipality or local governmental unit causes injury by denying that person rights that are protected by the Due Process Clause embodied within Article 3, § 10 of the West Virginia Constitution.
Syl. pt. 2, Hutchison , 198 W. Va. 139, 479 S.E.2d 649. In reaching this conclusion, the Hutchison Court provided no analysis; instead, the Court merely observed that "[t]here is no dispute among the parties that a private cause of action exists where state government, or its entities, cause injury to a citizen by denying due process. To suggest otherwise, would make our constitutional guarantees of due process an empty illusion." Id. at 150, 479 S.E.2d at 660. The Court then found the plaintiff's constitutional claim was barred by statutory immunity. Id. Thus, we find little guidance from the Hutchison opinion to aid us in analyzing the certified question. In posing its certified question to this Court, the district court expressly requested clarification of this Court's decision in Harrah v. Leverette , 165 W. Va. 665, 271 S.E.2d 322 (1980), superseded by statute on other grounds as recognized by W. Va. Reg'l Jail & Corr. Facility Auth. v. A.B. , 234 W. Va. 492, 515 n.30, 766 S.E.2d 751, 774 n.30 (2014), as the United States District Courts, in endeavoring to interpret West Virginia law on the issue of whether a private cause of action for damages would be recognized for a constitutional violation, have sometimes relied upon Harrah . Harrah involved an original jurisdiction proceeding filed by inmates incarcerated at Huttonsville Correctional Center seeking unconditional release from confinement based on cruel and unusual punishment. The Harrah Court held that " Article III, § 5 of the West Virginia Constitution , prohibits state prison administrators and correctional officers from using physical force on inmates, absent imminent and present danger of harm to others, themselves or state property." Syl. pt. 3, Harrah , 165 W. Va. 665, 271 S.E.2d 322. Additionally, the Court held that
Because Hutchison addresses violations of the due process clause and the instant matter addresses unreasonable search and seizure, we do not, by our decision today, disturb the Hutchison holding. However, as reflected in our ultimate decision in this case, we decline Mr. Fields’ invitation to extend the Hutchison holding to claims for violations of Article III, Section 6 of the West Virginia Constitution.
We note that the United States District Courts for the two West Virginia districts have addressed whether private causes of action for monetary damages would be recognized in West Virginia and are split in their answers to this question. Compare Nutter v. Mellinger , No. 2:19-CV-00787, 2020 WL 401790, at *6 (S.D.W. Va. Jan. 23, 2020) (explaining that "[i]t is true though that this court has previously found that Article III provisions of the West Virginia Constitution do not provide a private cause of action for damages, with the exception of § 10 .... I agree and find that a private plaintiff cannot bring a claim for damages under Article III, § 6 of the West Virginia Constitution when there is not an independent statute authorizing such a cause of action."), and Howard v. Ballard , No. 2:13-CV-11006, 2015 WL 1481836, at *4 (S.D.W. Va. Mar. 31, 2015) (commenting that "a violation of Article III, § 5 of the West Virginia Constitution does not independently give rise to claims for money damages"), and McMillion-Tolliver v. Kowalski , No. 2:13-CV-29533, 2014 WL 1329790, at *2 (S.D.W. Va. Apr. 1, 2014) (concluding that "[t]he Harrah court did not include a cause of action under the state constitution for money damages among the remedies it listed. Without an independent statute authorizing money damages for violations of the West Virginia Constitution, the plaintiff's claim must fail."), and Smoot v. Green , No. CIV.A. 2:13-10148, 2013 WL 5918753, at *4-5 (S.D.W. Va. Nov. 1, 2013) (discussing claims against a state agency and supervisory defendants, as opposed to individuals, and finding that "[i]nasmuch as the decision in Harrah does not contemplate a damages award for Article III violations in this setting, it is ORDERED that, to the extent the claims under Article III seek monetary relief, they be, and hereby are, dismissed"), with Barcus v. Austin , No. 1:17CV122, 2018 WL 4183213, at *5 (N.D.W. Va. Aug. 31, 2018) (quoting Syllabus point 2 of Hutchison and pointing out that "[t]he parties do not dispute that West Virginia law recognizes a private cause of action, analogous to one arising under § 1983, for state constitutional violations"), and Spry v. W. Va. , No. 2:16-CV-01785, 2017 WL 440733, at *9 (S.D.W. Va. Feb. 1, 2017) (noting the dispute among federal district courts in West Virginia as to "[w]hether the West Virginia Constitution gives rise to a private right of action for money damages" and reasoning that, "[g]iven its ruling in Hutchison , the Court suspects that the [West Virginia Supreme Court of Appeals] would recognize a cause of action for money damages for the violation of other Article III rights"), and Harper v. C.O. Joseph Barbagallo , No. 2:14-CV-07529, 2016 WL 5419442, at *13 (S.D.W. Va. Sept. 27, 2016) (remarking that "[t]he Court is unconvinced that the Supreme Court of Appeals of West Virginia would refuse to recognize a private right of action under Section 5 of Article III when it has recognized such a right with regard to Section 10"), and Ray v. Cutlip , No. 2:13-CV-75, 2014 WL 858736, at *3 n.1 (N.D.W. Va. Mar. 5, 2014) (mentioning in a footnote that "West Virginia recognizes a private right of action for violations of the West Virginia Constitution," and quoting Hutchison ).
[a] person brutalized by state agents while in jail or prison may be entitled to:
(a) A reduction in the extent of his confinement or his time of confinement;
(b) Injunctive relief, and subsequent enforcement by contempt proceedings, including but not limited to, prohibiting the use of physical force as punishment, requiring psychological testing of guards, and ordering guards discharged if at a hearing they are proved to have abused inmates;
(c) A federal cause of action authorized by 42 U.S.C. § 1983 ; and
(d) A civil action in tort.
Syl. pt. 4, Harrah , 165 W. Va. 665, 271 S.E.2d 322. Several district court opinions have interpreted Harrah as not allowing a cause of action for money damages for violations of Article III of the West Virginia Constitution other than the Section 10 right of recovery recognized by Hutchison . See, e.g. , Billiter v. Jones , No. CV 3:19-0288, 2020 WL 118595, at *5 (S.D.W. Va. Jan. 9, 2020) (determining that money damages were not available for claims under Article III, Sections 7 and 16 of the West Virginia Constitution, but observing that "[t]he Supreme Court of Appeals did, however, authorize injunctive relief in Harrah v. Leverette for an article III, section 5 claim" (emphasis added)); Murray v. Matheney , No. 2:13-CV-15798, 2017 WL 4849113, at *8 (S.D.W. Va. Oct. 26, 2017) (granting summary judgment to defendants as to plaintiff's claims for money damages for violations of Article III, Section 5 of the West Virginia Constitution, because "monetary damages under the West Virginia Constitution [are] outside the scope of those contemplated by the Harrah court"); McMillion-Tolliver v. Kowalski , No. 2:13-CV-29533, 2014 WL 1329790, at *2 (S.D.W. Va. Apr. 1, 2014) (concluding that "[t]he Harrah court did not include a cause of action under the state constitution for money damages among the remedies it listed").
Mr. Fields contends that cases such as these have misinterpreted the Harrah decision. He focuses on remedy (d) in Syllabus point 4, which provides that a civil action in tort is among the remedies available to a person who has been brutalized by state agents while in jail or prison, and interprets it as creating an implied cause of action for damages for a violation of Article III, Section 5 of the West Virginia Constitution. We disagree. There simply is no language in Harrah adopting an implied cause of action for a constitutional violation. Rather, it is explained in the body of the opinion that "[a] single spontaneous attack by a guard may simply be a common law tort[.]" Harrah , 165 W. Va. at 677, 271 S.E.2d at 330. Thus, remedy (d) is merely acknowledging that, under the proper circumstances, a brutalized inmate might have a common law tort cause of action. Therefore, we find that the district courts that have concluded "[t]he Harrah court did not include a cause of action under the state constitution for money damages among the remedies it listed" have properly interpreted this case. McMillion-Tolliver , 2014 WL 1329790, at *2.
Having found no grounds to find the drafters and the electorate intended to create a cause of action for monetary damages for a violation of Article III, Section 6, from existing West Virginia precedent, we next consider how other courts have addressed this issue.
The leading case by the United States Supreme Court that recognized a constitutional tort is Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). In Bivens , the Court recognized that a violation of the Fourth Amendment to the United States Constitution "by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct." Id. at 389, 91 S. Ct. at 2001, 29 L. Ed. 2d 619. The Court made this finding despite the fact that "the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation." Bivens , 403 U.S. at 396, 91 S. Ct. at 2004, 29 L. Ed. 2d 619. In analyzing whether to adopt an implied cause of action, the Bivens Court acknowledged the well-settled principle that, " ‘where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ " Id. (quoting Bell v. Hood , 327 U.S. 678, 684, 66 S. Ct. 773, 777, 90 L. Ed. 939 (1946) ). However, even in the absence of a federal statute that provided a general right to sue under the circumstances presented in Bivens , the Court found that the case "involve[d] no special factors counseling hesitation in the absence of affirmative action by Congress." Id. at 396, 91 S. Ct. at 2005, 29 L. Ed. 2d 619. Also significant to the decision in Bivens was the lack of any alternate remedy for the plaintiff. See id. at 410, 91 S. Ct. at 2011-12, 29 L. Ed. 2d 619 (Harlan, J., concurring) ("It will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court.... For people in Bivens’ shoes, it is damages or nothing.").
"Constitutional torts, as the name implies, seek recovery of money damages for constitutional wrongs. Most commonly, these actions are brought under 42 U.S.C. § 1983 [.]" W. Va. Lottery v. A-1 Amusement, Inc. , 240 W. Va. 89, 103, 807 S.E.2d 760, 774 (2017).
Similar to Article III, Section 6 of the West Virginia Constitution, the Fourth Amendment to the United States Constitution provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
See, e.g. , Ziglar v. Abbasi , ––– U.S. ––––, ––––, 137 S. Ct. 1843, 1854, 198 L. Ed. 2d 290 (2017) (discussing Bivens and observing that "[t]he Court held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures").
In Ziglar , ––– U.S. at ––––, 137 S. Ct. at 1854, 198 L. Ed. 2d 290, the United States Supreme Court explained that,
[i]n 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens , Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.
In the time since the Bivens decision was handed down, however, the Court has been reluctant to extend its holding, and has expressed that,
[g]iven the notable change in the Court's approach to recognizing implied causes of action, however, the Court has made clear that expanding the Bivens remedy is now a "disfavored" judicial activity. [ Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009) ]. This is in accord with the Court's observation that it has "consistently refused to extend Bivens to any new context or new category of defendants." Correctional Services Corp. v. Malesko , 534 U.S. 61, 68, 122 S. Ct. 515, [520,] 151 L. Ed. 2d 456 (2001). Indeed, the Court has refused to do so for the past 30 years.
Ziglar v. Abbasi , ––– U.S. ––––, ––––, 137 S. Ct. 1843, 1857, 198 L. Ed. 2d 290 (2017). To this end, the Ziglar Court observed that
The Ziglar Court explained that,
[i]n the decade that followed [Bivens ], the Court recognized what has come to be called an implied cause of action in two cases involving other constitutional violations. In Davis v. Passman , 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979), an administrative assistant sued a Congressman for firing her because she was a woman. The Court held that the Fifth Amendment Due Process Clause gave her a damages remedy for gender discrimination. Id. , at 248-249, 99 S. Ct. 2264. And in Carlson v. Green , 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980), a prisoner's estate sued federal jailers for failing to treat the prisoner's asthma. The Court held that the Eighth Amendment Cruel and Unusual Punishments Clause gave him a damages remedy for failure to provide adequate medical treatment. See id. , at 19, 100 S. Ct. 1468. These three cases—Bivens , Davis , and Carlson —represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.
Ziglar , ––– U.S. at ––––, 137 S. Ct. at 1854-55, 198 L. Ed. 2d 290.
the Court declined to create an implied damages remedy in the following cases: a First Amendment suit against a federal employer, Bush v. Lucas , 462 U.S. 367, 390, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983) ; a race-discrimination suit against military officers, Chappell v. Wallace , 462 U.S. 296, 297, 304-305, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983) ; a substantive due process suit against military officers, United States v. Stanley , 483 U.S. 669, 671-672, 683-684, 107 S. Ct. 3054, 97 L. Ed. 2d 550 (1987) ; a procedural due process suit against Social Security officials, Schweiker v. Chilicky , 487 U.S. 412, 414, 108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988) ; a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer , 510 U.S. 471, 473-474, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994) ; an Eighth Amendment suit against a private prison operator, [ Correctional Services Corp. v. Malesko , 534 U.S. 61, 63, 122 S. Ct. 515, 517, 151 L. Ed. 2d 456 ]; a due process suit against officials from the Bureau of Land Management, Wilkie v. Robbins , 551 U.S. 537, 547-548, 562, 127 S. Ct. 2588, 168 L. Ed. 2d 389 (2007) ; and an Eighth Amendment suit against prison guards at a private
prison, Minneci v. Pollard , 565 U.S. 118, 120, 132 S. Ct. 617, 181 L. Ed. 2d 606 (2012).
Ziglar , ––– U.S. at ––––, 137 S. Ct. at 1857, 198 L. Ed. 2d 290. In Wilkie , 551 U.S. 537, 127 S. Ct. 2588, 168 L. Ed. 2d 389, the Court set out a two-part analysis for determining the availability of a Bivens type action:
our consideration of a Bivens request follows a familiar sequence, and on the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. Bush [v. Lucas , 462 U.S. 367, 378, 103 S. Ct. 2404, 2411, 76 L. Ed. 2d 648 (1983)]. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: "the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation." Bush, supra , at 378, 103 S. Ct. [at 2411, 76 L. Ed. 2d 648].
Wilkie , 551 U.S. at 550, 127 S. Ct. at 2598, 168 L. Ed. 2d 389.
Relying on the Supreme Court's change in approach to recognizing an implied cause of action for monetary damages based upon a constitutional violation, numerous state courts have declined to adopt such a cause of action. And, even though state courts have utilized somewhat varying approaches to address this issue, the existence of alternative remedies frequently is the deciding factor. See, e.g. , State, Dep't of Corr. v. Heisey , 271 P.3d 1082, 1098 (Alaska 2012) (commenting that "the availability of an alternative remedy is dispositive on the issue of a Bivens -type remedy"); Bd. of Cty. Comm'rs of Douglas Cty. v. Sundheim , 926 P.2d 545, 553 (Colo. 1996) ("While it may be appropriate to recognize an implied state constitutional cause of action when there is no other adequate remedy, we agree ... that where other adequate remedies exist, no implied remedy is necessary."); Kelley Prop. Dev., Inc. v. Town of Lebanon , 226 Conn. 314, 627 A.2d 909, 922 (1993) (observing that "[t]he several sister jurisdictions that have addressed the issue of whether to recognize a state Bivens action have pursued varying methods of analysis, with varying results. In a significant number of cases, however, the focus has been on the presence or absence of an existing alternative remedy, either by way of statute or under the common law, to provide some measure of relief for the injured party."); St. Luke Hosp., Inc. v. Straub , 354 S.W.3d 529, 537 (Ky. 2011) (declining to provide money damages for due process violations under state constitution because "adequate alternative remedies exist, as evidenced by the fact that Straub's complaint alleged four alternative theories of recovery against all the defendants."); Provens v. Stark Cty. Bd. of Mental Retardation & Dev. Disabilities , 64 Ohio St.3d 252, 594 N.E.2d 959, 965-66 (1992) (holding that "public employees do not have a private cause of civil action against their employer to redress alleged violations by their employer of policies embodied in the Ohio Constitution when it is determined that there are other reasonably satisfactory remedies provided by statutory enactment and administrative process.").
The states are roughly split on recognizing a Bivens -type action for monetary damages resulting from the violation of a constitutional right. See Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 7-07, at 7-20 (4th ed 2006) ("State courts are about evenly divided whether state law should ever recognize an implied cause of action for damages directly under a state constitutional guarantee.").
This same principle has been recognized in federal courts. See Ziglar , ––– U.S. at ––––, 137 S. Ct. at 1865, 198 L. Ed. 2d 290 ("[T]he existence of alternative remedies usually precludes a court from authorizing a Bivens action."); Bowman v. Sawyer , No. 19-CV-1411-WJM-KMT, 2020 WL 6390992, at *4 (D. Colo. Nov. 2, 2020) (same).
In Straub , the Supreme Court of Kentucky observed that,
[i]n Bivens , the Supreme Court originally considered "alternative remedies" to be those instance[s] in which Congress provided an alternative remedy. After Supreme Court decisions in Correctional Services Corp. v. Malesko , 534 U.S. 61, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001), and Wilkie , any alternative process that contains a "convincing reason" to refrain from recognizing a new cause of action can preclude a Bivens action.
Straub , 354 S.W.3d at 538 n.40. The Straub Court then reasoned that,
[i]n the present matter, this opinion notes the availability of other remedies for the alleged violation of Straub's rights under the Kentucky Constitution—traditional tort actions. Based on the United States Supreme Court's narrowing acceptance of Bivens actions since 1980 and our application of the Bivens two-step inquiry to the facts before us, we reject Straub's alternative request to recognize a new tort cause of action under Bivens .
Straub , 354 S.W.3d at 538. Although the Straub Court stated that it applied the Bivens two-step inquiry in reaching its conclusion, the court did not set out its findings with respect to whether special factors existed to counsel hesitation against implying a Bivens cause of action, apparently finding the presence of adequate alternative remedies to be sufficient justification.
Similarly, in Provens , 594 N.E.2d 959, the Supreme Court of Ohio addressed whether a teacher employed by the state had a private cause of action for violations of the Ohio Constitution. The plaintiff in Provens failed to identify the constitutional rights allegedly violated, but based upon her allegations, the Ohio court inferred that she had claimed a violation of her right to free speech under Section 11, Article I of the Ohio Constitution. Id. at 961. The court explained that, "[e]ven though this court is empowered to grant relief not expressly provided by the legislature, and may grant relief by creating a new remedy, we shall refrain from doing so where other statutory provisions and administrative procedures provide meaningful remedies." Id. at 961-62. In response to the plaintiff's argument that the alternative remedies available were not "adequate and meaningful," the Provens Court found otherwise. Id. at 963. Noting that alternate remedies were available through the Ohio Civil Rights Commission and through a grievance process that had been negotiated by plaintiff's employee bargaining organization, the Provens Court explained that,
[w]hile the remedies provided the plaintiff here through the administrative process of a hearing before the [Civil Rights Commission] and through the arbitration process under the collective bargaining agreement do vary from the remedies that might be available through a civil proceeding, such difference shall not be controlling where, in the totality, it may be concluded that the public employee has been provided sufficiently fair and comprehensive remedies. In [ Bush v. Lucas , 462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983) ], the United States Supreme Court clearly evidenced that alternative avenues providing a less than complete remedy for the wrong suffered were not sufficient to warrant the recognition of a cause of action for damages arising from a constitutional violation. 462 U.S. at 388, 103 S. Ct. at 2417, 76 L. Ed. 2d at 664.
Provens , 594 N.E.2d at 965. See also Heisey , 271 P.3d at 1096-98 (declaring that "a litigant must establish two requirements before we will consider a possible Bivens -type claim: that ‘alternative remedies’ do not exist; and that the constitutional violation is ‘flagrant’ "; finding that 42 U.S.C. § 1983 provided an alternate remedy; and concluding that "[e]ven if Heisey may no longer bring a § 1983 claim, an ‘alternative remedy’ existed for Bivens purposes" (quoting Adkins v. Stansel , 204 P.3d 1031, 1034 (Alaska 2009) ); Giraldo v. Dep't of Corr. & Rehab. , 168 Cal.App.4th 231, 85 Cal. Rptr. 3d 371, 390 (2008) (declining to recognize a constitutional tort for violation of the cruel or unusual punishment clause of the California Constitution, in part, because "there are adequate alternative remedies available for a claim such as that asserted by plaintiff here. First, we have concluded that California law imposes on at least some prison personnel a duty to protect prisoners from foreseeable harm caused by other inmates, breach of which could give rise to a claim for negligence. Additionally, and as defendants point out, plaintiff had available a claim pursuant to 42 U.S.C. § 1983 for violation of the Eighth Amendment to the federal Constitution."); Kelley Prop. Dev., Inc. , 627 A.2d at 922 (declining to "construe our state constitution to provide a basis for the recognition of a private damages action for injuries for which the legislature has provided a reasonably adequate statutory remedy"); Shields v. Gerhart , 163 Vt. 219, 658 A.2d 924, 934 (1995) ("We agree that it may be appropriate to imply a monetary damages remedy to enforce constitutional rights where the Legislature has fashioned no other adequate remedial scheme. Where the Legislature has provided a remedy, although it may not be as effective for the plaintiff as money damages, we will ordinarily defer to the statutory remedy and refuse to supplement it.").
Clearly, reasonable alternative remedies are available for a violation of Article III, Section 6 of the West Virginia Constitution. This is evidenced in the instant matter by the fact that Mr. Fields has asserted state law claims for negligence in the hiring, retention, and/or supervision of employees; battery; and outrageous conduct/intentional infliction of mental, physical, and emotional distress. He also has asserted federal claims for excessive force under United States Code title 42 section 1983 ; a Monell claim and supervisory liability under United States Code title 42 section 1983 ; and unlawful conspiracy under United States Code title 42 sections 1983 & 1985.
See supra note 1 for an explanation of a Monell claim.
Based upon the foregoing discussion, and because alternate remedies are available for a violation of Article III, Section 6 of the West Virginia Constitution, we now hold that West Virginia does not recognize a private right of action for monetary damages for a violation of Article III, Section 6 of the West Virginia Constitution. Applying this holding to the claims asserted by Mr. Fields, he cannot assert a private action for monetary damages based on a violation of Article III, Section 6 of the West Virginia Constitution because no such cause of action is recognized in this state.
Mr. Fields additionally encourages this Court to conclude that a damages remedy is available for a violation of Article III, Section 6 of the West Virginia Constitution based upon the Restatement (Second) of Torts Section 874A (1979), which provides that,
[w]hen a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
According to comment a to this section, "[a]s used in this Section, the term ‘legislative provision’ includes ... constitutional provisions." Given our analysis in this certified question action, including our consideration of United States Supreme Court precedent, we decline to address Section 874A of the Restatement (Second) of Torts in our resolution of this case.
IV.
CONCLUSION
Based upon the foregoing analysis, we answer the question certified by the United States District Court for the Southern District of West Virginia in the negative as follows:
Question: "Does West Virginia recognize a private right of action for monetary damages for violations of Article III, Section 6 of the West Virginia Constitution ?"
Answer: West Virginia does not recognize a private right of action for monetary damages for a violation of Article III, Section 6 of the West Virginia Constitution.
Certified Question Answered.
JUSTICE HUTCHISON concurs and reserves the right to file a concurring opinion.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
Hutchison, J., concurring: I concur with the majority's holding that West Virginia does not recognize a private right of action for monetary damages for a violation of Article III, Section 6 of the West Virginia Constitution. I write separately because I believe that the Court should look to The Restatement (Second) of Torts § 874A (1979) in determining whether a legislative provision (or, in this case, a constitutional provision) implies a private right of action for monetary damages.
Section 874A provides:
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
Comment a to § 874A clarifies that, "[a]s used in this Section, the term ‘legislative provision’ includes statutes, ordinances and legislative regulations of administrative agencies at various levels of government. It also includes constitutional provisions."
Article III, section 6 of the West Virginia Constitution provides:
The rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.
(Emphasis added).
(Footnote added). Comment h to § 874A instructs: "The primary test for determining whether the courts should provide a tort remedy for violation of the legislative provision is whether this remedy is consistent with the legislative provision, appropriate for promoting its policy and needed to assure its effectiveness." Id. In so determining, the section enumerates six factors "to which a court may be expected to give consideration." They include:
(1) The nature of the legislative provision;
(2) The adequacy of existing remedies;
(3) The extent to which the tort action will aid or supplement or interfere with, existing remedies and other means of enforcement;
(4) The significance of the purpose that the legislative body is seeking to effectuate;
(5) The extent of the change in tort law; and
(6) The burden that the new cause of action will place on the judicial machinery.
Id. See e.g., Alaska Marine Pilots v. Hendsch , 950 P.2d 98 (Alaska 1997) ; Katzberg v. Regents of Univ. of Calif. , 29 Cal.4th 300, 127 Cal.Rptr.2d 482, 58 P.3d 339 (2002). I believe that consideration of the certified question under these factors would render a decision that is consistent with the majority's ultimate conclusion that no private right of action for monetary damages exists for a violation of Article III, Section 6 of the West Virginia Constitution.
For the foregoing reason, I concur.
Workman, Justice, dissenting:
I fundamentally disagree with the majority's refusal to recognize a private cause of action for damages under article III, section 6 of the West Virginia Constitution. This decision is contrary to the precepts of Hutchison v. City of Huntington , 198 W. Va. 139, 479 S.E.2d 649 (1996), and this Court's duty to ensure that the rights granted the citizens of this State under the West Virginia Constitution are upheld. In so doing, the majority has failed to uphold our most cherished law – the West Virginia Constitution. I therefore dissent.
The question certified in this case, whether a private cause of action exists for redress of damages resulting from a violation of article III, section 6 of our Constitution1 arises from the execution of a search warrant on September 20, 2017, by Jackson County Sheriff's Deputy Ross H. Mellinger, among others, at a residence located in Jackson County. Deputy Mellinger encountered the plaintiff, Cody Ryan Fields, who was standing in a detached garage adjacent to the residence with open bay doors. As Deputy Mellinger approached Mr. Fields, Mr. Fields had his hands raised and was bending at the waist to get on the ground. As Mr. Fields was bending down, Deputy Mellinger allegedly struck Mr. Fields in the face with the butt end of a shotgun. Mr. Fields was charged with obstructing an officer and simple possession of a controlled substance.
The facts are undisputed by the respondents.
According to Mr. Fields, Deputy Mellinger, among others, submitted written reports to Jackson County Sheriff Tony Boggs and Katie Franklin, the Jackson County Prosecuting Attorney, to mitigate the alleged excessive force used against him. Mr. Fields claimed that he made repeated attempts to schedule a suppression hearing on the underlying charges, but each time the State's witnesses were unavailable, and finally the charges were dismissed. Mr. Fields also asserted that the Jackson County Commission "implemented customs, policies or official or unofficial acts which led to the injury claimed by Plaintiff and failed to provide reasonable means of supervision of Deputy Mellinger despite having knowledge of his propensity or pattern or practice of violence."
Mr. Fields filed a lawsuit in the United States District Court for the Southern District of West Virginia against Deputy Mellinger, Sheriff Boggs, and the Jackson County Commission d/b/a the Jackson County Sheriff's Department (collectively "the respondents") alleging, inter alia, claims for violation of article III, sections 6, 10, and 17 of the West Virginia Constitution. The respondents moved to dismiss which gave rise to the following certified question before the Court: "Does West Virginia recognize a private right of action for monetary damages for violations of Article III, Section 6 of the West Virginia Constitution ?"
Mr. Fields also asserted claims for negligence; battery; excessive force pursuant to 42 U.S.C. § 1983 ; Monell [v. Dep't of Soc. Servs. of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ] and supervisory liability pursuant to 42 U.S.C. § 1983 ; and unlawful conspiracy pursuant to 42 U.S.C. §§ 1983 and 1985.
This Court long ago recognized that our "constitution is the fundamental law by which all people of the state are governed. It is the very genesis of government. Unlike ordinary legislation, a constitution is enacted by the people themselves in their sovereign capacity and is therefore the paramount law. " State ex rel. Smith v. Gore , 150 W. Va. 71, 77, 143 S.E.2d 791, 795 (1965) (emphasis added); Moats v. Cook , 113 W. Va. 151, 167 S.E.137, 138-39 (1932) ("The Constitution is the supreme law of the land...."). As this Court held in syllabus point three of State ex rel. Casey v. Pauley , 158 W. Va. 298, 210 S.E.2d 649 (1975), "[c]ourts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution. " (Emphasis added). Hence, it is the duty of the judicial branch, and more specifically this Court, to uphold the Constitution. See State ex rel. Richardson v. Cty. Court of Kanawha Cty. , 138 W. Va. 885, 890, 78 S.E.2d 569, 573 (1953) ("The Constitution represents the sovereign will of the people, and courts must not hesitate when necessary to uphold it.").
The respondents’ position that legislative authority is required for this Court to establish a constitutional tort and determine the remedies therefor is wholly without merit. The respondents provide no authority for their position because there is none; this Court has never found that the judiciary's ability to enforce constitutional rights and establish remedies for constitutional violations is dependent upon statutory authorization by the Legislature.
Thus, as a means of upholding the West Virginia Constitution, this Court has long held that various private causes of action exist under article III of the West Virginia Constitution beginning with a private cause of action for the state's taking of private property without just compensation. See Syl. Pt. 1, Fox v. Baltimore & O. R. Co. , 34 W. Va. 466, 12 S.E.757 (1890) ("In an action brought to recover damages under section 9 of article 3 of the constitution, as compensation for permanent injury to real estate by the construction of a railroad upon a street adjacent to such property, it is proper for the owner to bring an action for trespass on the case, and he may count for permanent damages, and recover the same according to the evidence, although, when the injury occurred, he was not in the actual occupancy of the property, but was in constructive possession of the same through his tenant under a lease.").
Next, in Harrah v. Leverette , 165 W. Va. 665, 271 S.E.2d 322 (1980), the Court recognized a cause of action for violating article III, section 5 of the West Virginia Constitution, stating that "a person brutalized by state agents while in jail or prison" may be entitled to "[a] civil action in tort[,]" because "Article III, [§]5 of the West Virginia Constitution[ ] prohibits of cruel and unusual punishment. Harrah , 165 W.Va. at 666, 271 S.E.2d at 324, Syl. Pts. 3 & 4, in part. In so doing, we clearly and unequivocally announced that this Court "is dedicated to the preservation of the rights vested in every person by our constitution and the federal constitution. Any attempt by the government to abridge those rights is anathema to us; repeated infractions, despite clear proscriptions by this Court and federal courts, are unforgivable." Id. at 681, 271 S.E.2d at 331.
Following Harrah , the Court next recognized a cause of action for violating article III, section 10 of the West Virginia Constitution in Hutchison . In Hutchinson , the Court held in syllabus point two that "[u]nless barred by one of the recognized statutory, constitutional or common law immunities, a private cause of action exists where a municipality or local governmental unit causes injury by denying that person rights that are protected by the Due Process Clause embodied within Article 3, § 10 of the West Virginia Constitution." 198 W. Va. at 144, 479 S.E.2d at 654, Syl. Pt. 2. We further held that in order to prove a claim under article 3, section 10, the Court established "[a]s under [ 42 U.S.C.] § 1983, the plaintiff must show (1) that there was a constitutional violation, and (2) that the claim is not barred by an applicable immunity." 198 W. Va. at 150, 479 S.E.2d at 660.
Importantly, the Court found that a constitutional tort existed in Hutchison without engaging in any lengthy, in-depth analysis of our jurisprudence or that of other jurisdictions. Rather, the Court relied upon its duty to uphold the Constitution, grounding its decision in the very simple notion that a cause of action was the only means of affording citizens a remedy when public servants violate rights guaranteed by our Constitution. As the Hutchison Court stated, "[t]here is no dispute among the parties that a private cause of action exists where state government, or its entities, cause injury to a citizen by denying due process. To suggest otherwise, would make our constitutional guarantees of due process an empty illusion." 198 W. Va. at 150, 479 S.E.2d at 660. Moreover, a private cause of action is " ‘the only realistic avenue for vindication of statutory and constitutional guarantees when public servants abuse their offices is an action for damages.’ See Alan K. Chen, The Ultimate Standard: Qualified Immunity in the Age of Constitutional Balancing Tests , 81 Iowa L. Rev. 261 (1995)." 198 W. Va. at 148, 479 S.E.2d at 658.
Some federal district courts in West Virginia have relied upon Hutchison in recognizing constitutional claims for violations of provisions other than article III, section 10. Cummings v. City of Wheeling, No. 5:19CV271, 2019 WL 6609693, at *4 (N.D.W. Va. Dec. 5, 2019) (relying, in part, on Hutchison to allow plaintiff's state constitutional claim arising out of officer's handling of a trained police dog during search in which dog bit plaintiff's body causing injury to proceed); Barcus v. Austin , No. 1:17CV122, 2018 WL 4183213 at *5 (N.D.W. Va. Aug. 31, 2018) (dismissing plaintiffs’ claims under article III, §§ 7, 10 and 11 for failing to plead sufficient facts but recognizing private causes of action for state constitutional violations pursuant to Hutchison ); Spry v. West Virginia , No. 2:16-CV-01785, 2017 WL 440733, at *9 (S.D.W. Va. Feb. 1, 2017) (where a count was alleged for violating West Virginia Constitution article III, section 6, the district court stated that "[g]iven its ruling in Hutchison , the Court suspects that the WVSCA would recognize a cause of action for money damages for the violation of other Article III rights[,]" allowing state constitutional claim for unlawful entry to proceed); Ray v. Cutlip , No. 2:13-CV-75, 2014 WL 858736, at *3 n.1 (N.D.W. Va. Mar. 5, 2014) (recognizing state constitutional claim based upon use of excessive force, stating that, based on Hutchison , "West Virginia recognizes a private right of action for violations of the West Virginia Constitution."); see also Wood v. Harshbarger , No. 3:13-21079, 2013 WL 5603243 at *6-8 (S.D. W. Va. Oct. 11, 2013) (relying on Harrah and finding plaintiff had alleged sufficient facts to state a constitutional claim to be free from cruel and unusual punishment under West Virginia Constitution article III, section 5 ).
In the instant case, this Court should easily have recognized a private cause of action for the alleged violation of article III, section 6 based upon our precedents. This extension of our law would have been incremental, logical, and predictable, and would have given the citizens of our State a means of protecting the rights afforded to them by the West Virginia Constitution.
Looking beyond this Court's precedents, an examination of federal and state law in other jurisdictions lends further support for recognizing a private constitutional cause of action; quite frankly, the idea that such a cause of action may be necessary to vindicate a violation of a person's constitutional rights by a public servant is not novel. Going back to Marbury v. Madison , 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803), there has been widespread recognition that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." Id. at 163 ; see also Owen v. City of Independence, Mo. , 445 U.S. 622, 651, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) ("How ‘uniquely amiss’ it would be ... if the government itself—‘the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct’—were permitted to disavow liability for the injury it has begotten.") (citation omitted).
Almost fifty years ago, in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the United States Supreme Court first recognized a direct cause of action for damages under the Fourth Amendment to the United States Constitution. In Bivens , agents with the Federal Bureau of Narcotics made a warrantless entry into the petitioner's apartment, searched the apartment, and arrested him on narcotics charges. Id. at 389, 91 S.Ct. 1999. The petitioner instituted a civil action in federal court alleging that both the search and his arrest were effected without a warrant and without probable cause in violation of the Fourth Amendment, and that unreasonable force was used against him during the arrest. Id. He claimed damages for humiliation, embarrassment and mental suffering as a result of the agents’ conduct. The district court dismissed his action on the ground, inter alia, that he failed to state a cause of action. Id. at 390, 91 S.Ct. 1999. The dismissal was affirmed on appeal and the Supreme Court granted certiorari. Id.
In reversing the dismissal of the petitioner's complaint for failure to state a cause of action, the Supreme Court rejected the respondents’ contention that because he had state tort remedies available, i.e., trespass and invasion of privacy, there was no need to recognize a federal cause of action to vindicate his constitutional rights. The Court reasoned:
Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting—albeit unconstitutionally—in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Accordingly, as our cases make clear, the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And ["]where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.["]
Id. at 391-92, 91 S.Ct. 1999 (emphasis added) (citations omitted).
In a similar vein, the Supreme Court dismissed the idea that an enabling statute was a prerequisite to its recognition of the private cause of action, stating that it found "no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must be remitted to another remedy, equally effective in the view of Congress." Id. at 397, 91 S.Ct. 1999. Instead, the Court opined that
[t]he question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. Cf. J. I. Case Co. v. Borak , 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12 L.Ed.2d 423 (1964) ; Jacobs v. United States , 290 U.S. 13, 16, 54 S.Ct. 26, 27-28, 78 L.Ed. 142 (1933). ‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’ Marbury v. Madison , 1 Cranch 137, 163, 2 L.Ed. 60 (1803).
403 U.S. at 397, 91 S.Ct. 1999.
Thus, in the case sub judice, this Court should have easily recognized a private cause of action under our State Constitution for a violation of article III, section 6, following the analysis of the Supreme Court in Bivens . Persuasive authority for such a cause of action does not end with Bivens , however, because other state supreme courts have similarly recognized this type of remedy for search and seizure violations. For example, in Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996), the Court of Appeals of New York found that a cause of action existed for alleged violations of the equal protection and search and seizure provisions of the New York Constitution. Id. 652 N.Y.S.2d 223, 674 N.E.2d at 1131. The plaintiffs in Brown were a class of "nonwhite males" who were stopped and questioned by police officers in Oneonta, New York, over a five-day period in 1992, while the officers investigated an attack of a seventy-seven-year-old white woman. The victim described her assailant as a black male. Because authorities were unable to identify a suspect based upon such cursory information, they first obtained a computer-generated list of all African American men attending the nearby State University and began systematically questioning each individual on the list. Id. 652 N.Y.S.2d 223, 674 N.E.2d at 1131-32. When these efforts failed to identify a suspect, law enforcement officers began a five-day " ‘street sweep’ " in which every "nonwhite male" found in the city was stopped and interrogated. Id. 652 N.Y.S.2d 223, 674 N.E.2d at 1132. No one was arrested for the crime. Id.
See State v. Duvernoy , 156 W. Va. 578, 582, 195 S.E.2d 631, 634 (1973) ("The language of Article III, Section 6 of the West Virginia Constitution is very similar to the Fourth Amendment to the Constitution of the United States. State v. Massie , 95 W.Va. 233, 120 S.E. 514 [(1923)]. This Court has traditionally construed Article III, Section 6 in harmony with the Fourth Amendment. State v. Andrews , 91 W.Va. 720, pt. 2 Syl., 114 S.E. 257 [(1922)].").
In concluding that such conduct on the part of law enforcement gave rise to a private cause of action, the New York high court reasoned, in part:
Claimants alleged that the defendant's officers and employees deprived them of the right to be free from unlawful police conduct violating the Search and Seizure Clause and that they were treated discriminatorily in violation of the State Equal Protection Clause. The harm they assert was visited on them was well within the contemplation of the framers when these provisions were enacted for fewer matters have caused greater concern throughout history than intrusions on personal liberty arising from the abuse of police power. Manifestly, these sections were designed to prevent such abuses and protect those in claimants’ position. A damage remedy in favor of those harmed by police abuses is appropriate and in furtherance of the purpose underlying the sections.
....
Damages are a necessary deterrent for such misconduct.... For those in claimants’ position "it is damages or nothing" (see , Bivens , 403 U.S., at 410, 91 S.Ct., at 2012, supra [Harlan, J., concurring]). The damage remedy has been recognized historically as the appropriate remedy for the invasion of personal interests in liberty, indeed, damage remedies already exist for
similar violations of the Federal Constitution. Those created by Congress and the Supreme Court, however, fail to reach State action though it is on the local level that most law enforcement functions are performed and the greatest danger of official misconduct exists....
Brown , 652 N.Y.S.2d 223, 674 N.E.2d at 1140-41.
Likewise, in Dorwart v. Caraway, 312 Mont. 1, 58 P.3d 128 (2002), the Supreme Court of Montana recognized a private cause of action for violations of the Montana Constitution. In Dorwart , the plaintiffs alleged that two deputy sheriffs unlawfully entered a home where they conducted a warrantless, unlawful and unreasonable search and seizure of the property, trespassed, invaded plaintiffs’ privacy, and wrongfully converted certain items of their property, all in violation of Montana's constitutional provisions concerning right to privacy, right to be free from unreasonable searches and seizure, and right to due process of law. Id. at 131.
In its determination that a violation of rights guaranteed by the Montana Constitution give rise to a cause of action for damages, the Dorwart court first recognized that "[b]y 1998, twenty-one states had recognized an implied cause of action for state constitutional violations." Id. at 133. The court then examined the reasoning of the Supreme Court in Bivens , discussed supra in greater detail, and the general principle set forth in the Restatement (Second) of Torts § 874A (1979) :
When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.
Section 874A, comment a, of the Restatement, supra , makes clear that the term "legislative provision" includes a constitutional provision.
58 P.3d at 135. (footnote added). The Supreme Court of Montana then concluded "that the Bivens line of authority buttressed by § 874A of the Restatement (Second) of Torts are sound reasons for applying a cause of action for money damages for violations of those self-executing provisions of the Montana Constitution." Id. at 136. The court further found that "[c]ommon law causes of action intended to regulate relationships among and between individuals are not adequate to redress the type of damage caused by the invasion of constitutional rights." Id. at 137.
More recently, in Zullo v. State, 209 Vt. 298, 205 A.3d 466 (2019), the Supreme Court of Vermont recognized, as a matter of first impression, that a direct private cause of action for money damages exists for violations of Vermont's constitutional search and seizure provision. In Zullo , the plaintiff alleged that a state trooper had violated his constitutional rights by stopping him without reasonable suspicion of any traffic violation, causing him to exit his vehicle without any reasonable suspicion of danger or the commission of a crime, seizing his car without probable cause, and searching his car without probable cause. Id. at 474-75.
The Vermont high court undertook an analysis of whether the constitutional provision at issue was self-executing, meaning that the right did not " ‘need further legislative action to become operative[,]’ " and whether an alternative remedy was already available to address the injuries caused by the violation of constitutional rights. Id. at 484. The court first found that the constitutional provision prohibiting unwarranted searches and seizures was self-executing, and also concluded that "[t]he standard remedy for ... [a] violation in a criminal context—the exclusionary rule—provides no relief to the instant plaintiff, who was not charged with a crime." Id. The court further rejected the State's argument that other alternative remedies, including an action against the officer pursuant to 42 U.S.C. § 1983, injunctive relief, or administrative relief, provided "meaningful redress to plaintiff for the constitutional transgression he alleges." Zullo , 205 A.3d at 485. Instead, the Zullo court concluded that
In sum, none of the alternative remedies proffered by the State can substitute as a viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most particularly in a case like this where plaintiff was not charged with a crime. In addition to providing a compensatory remedy for particular individuals whose constitutional rights have been violated by state officials, the adjudication of constitutional torts has played a critical role in establishing specific constitutional limits on governmental power in a way that could not be provided by injunctive relief or common law actions.
Id. at 488 ; see Binette v. Sabo, 244 Conn. 23, 710 A.2d 688, 700-01 (1998) ("In recognizing the existence of a damages action in the present case, we, like the United States Supreme Court in Bivens , reject an unduly restrictive application of our most fundamental constitutional guarantees. Endorsing the rationale underlying Bivens , we decline, as a matter of policy, to treat the harm that results from the abuse of governmental power as equivalent to that which arises from the commission of a battery or trespass by a private citizen. In the absence of compelling countervailing considerations, we believe that a state Bivens -type action is an appropriate remedy for the unique harm likely to result from a violation of [Connecticut's constitutional provisions pertaining to unreasonable searches and seizures and unlawful arrests] ... because, unlike the other remedies available to the plaintiffs, a Bivens -type remedy comprehends both the fundamental nature of the rights protected by those constitutional provisions and the special significance of the duty breached by their violation. We conclude, therefore, that the plaintiffs have alleged cognizable claims under the Connecticut constitution.") (footnote omitted); Moresi v. State ex rel. Dep't of Wildlife and Fisheries , 567 So.2d 1081, 1093 (La. 1990) (recognizing "that damages may be obtained by an individual for injuries or loss caused by a violation of Article I, § 5 of the 1974 Louisiana Constitution [pertaining to unconstitutional arrests and searches and seizures]"); Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 479 A.2d 921, 930 (1984) (finding that private cause of action for damages exists for violation of articles of Maryland's Declaration of Rights concerning searches and seizures, and deprivation of liberty, life and property); see also Godfrey v. State , 898 N.W.2d 844, 871 and 873 (Iowa 2017) (recognizing existence of constitutional tort claim for monetary damages for equal protection and due process violations); Strauss v. State, 131 N.J.Super. 571, 330 A.2d 646, 650 (1971) (recognizing plaintiff's cause of action for violation of his constitutional right to due process); Old Tuckaway Assocs. Ltd. P'ship v. City of Greenfield, 180 Wis.2d 254, 509 N.W.2d 323, 328 n.4 (Ct. App. 1993) (acknowledging that the Wisconsin Supreme Court had not yet recognized a direct action based upon an intentional violation of state constitution's due process provision, but allowing claim to go forward).
In summary, the majority, relying upon this Court's precedent, as well as legal authority from the United States Supreme Court and many other state courts, should have recognized a private cause of action for damages to redress a violation of West Virginia Constitution article III, section 6. This type of action is necessary to enforce West Virginia's citizens’ constitutional rights and to ensure the government's responsibility to provide and to protect those rights from governmental wrongdoing or deprivation. As the Supreme Court eloquently stated in Owen , "A damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees, and the importance of assuring its efficacy is only accentuated when the wrongdoer is the institution that has been established to protect the very rights it has transgressed." 445 U.S. at 651, 100 S.Ct. 1398.
For the foregoing reasons, I dissent.