Arthur Patton v. County of Berkeley, West Virginia

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2019 Term

______________ FILED

November 12, 2019 No. 18-0375 released at 3:00 p.m. _______________ EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

ARTHUR PATTON, Petitioner v.

COUNTY OF BERKELEY, WEST VIRGINIA and

BERKELEY COUNTY SHERIFF’S DEPARTMENT, and

DEPUTY JOHN CARDELLO, individually, and in his capacity as an employee of Berkeley County,

Respondents

________________________________________________________

Appeal from the Circuit Court of Berkeley County The Honorable Christopher C. Wilkes, Judge

Civil Action No. 17-C-258 AFFIRMED

____________________________________________________________

Submitted: September 11, 2019 Filed: November 12, 2019

Christian J. Riddell, Esq. Charles R. Bailey, Esq.

Stedman & Riddell, PLLC Michael W. Taylor, Esq.

Martinsburg, West Virginia Bailey & Wyant, PLLC Counsel for the Petitioner Charleston, West Virginia

James W. Marshall, Esq.

Bailey & Wyant, PLLC Martinsburg, West Virginia Counsel for the Respondents

CHIEF JUSTICE WALKER delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “‘“Appellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus point 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).’ Syl. Pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998).” Syllabus Point 1, J.F. Allen Corp. v. Sanitary Bd. of City of Charleston, 237 W. Va. 77, 785 S.E.2d 627 (2016).

2. “The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.” Syllabus Point 1, Wickland v. American Travellers Life Ins., 204 W. Va. 430, 513 S.E.2d 657 (1998).

3. County sheriff’s departments and the law enforcement officials they employ are not within the executive branch of state government for purposes of the tolling provisions of West Virginia Code § 55-17-3(a)(2) (2016). i

WALKER, Chief Justice:

Petitioner Arthur Patton was arrested on June 2, 2015, by Deputy John Cardello of the Berkeley County Sheriff’s Department and eventually pleaded no contest to third offense DUI and fleeing from a law enforcement officer. More than two years later, he sued Respondents Deputy Cardello, Berkeley County and its Sheriff’s Department, claiming that his arrest violated his constitutional rights and was intentional infliction of emotional distress and battery. The circuit court dismissed Mr. Patton’s claims because he did not file within the two-year statute of limitations. He now appeals the dismissal on the grounds that (1) the circuit judge should have been disqualified from the case; and (2) the tolling provision of West Virginia Code § 55-17-3(a) should have applied once he gave notice of his claim to the Berkeley County Sheriff’s Department.1 We disagree and find that because the sheriff’s department is not part of the executive branch of state government, the tolling provision of § 55-17-3(a) did not apply. And, Mr. Patton’s allegations that the circuit judge should have been disqualified were properly adjudicated (twice) by the Chief Justice of this Court and are without merit.

I. FACTUAL AND PROCEDURAL BACKGROUND Mr. Patton alleges that on June 2, 2015, Deputy John Cardello used excessive force in apprehending him and beat him so badly that he required facial reconstructive surgery and the insertion of a metal plate into his cheek. He claims that video from Deputy Cardello’s “dash-cam” shows him radioing dispatch that Mr. Patton was “making a run for it before [Mr. Patton] had even opened his car door, indicating . . . that Deputy Cardello intended to set up his justification for brutality before engaging with him.” Deputy Cardello then rushed Mr. Patton the moment he stepped out of the car. Mr. Patton asserts that the deputy next beat him repeatedly about his body and face while Mr. Patton lay helpless in a river. Mr. Patton also alleges that during criminal proceedings, the dash-cam video disappeared for a long period of time and became the subject of a discovery dispute. The discovery dispute was eventually resolved and the video was produced. Mr. Patton eventually pled no contest to third offense DUI and fleeing from a law enforcement officer.

On May 5, 2017, Mr. Patton sent a notice under West Virginia Code § 55- 17-3(a)(2)2 of intent to file an action to Doug Copenhaver, President of the Berkeley County Council. Mr. Patton alleges that this notice tolled the statute of limitations for thirty days from the date the notice was provided and received. On June 5, 2017, Mr. Patton filed his complaint alleging a violation of his constitutional rights, intentional infliction of emotional distress, and battery. Respondents moved to dismiss the complaint, arguing that Mr. Patton had not filed his civil suit within the two-year statute of limitations under West Virginia Code § 55-2-12,3 and that the statute of limitations was not tolled because the Berkeley County Sheriff’s Office did not qualify as a “government agency” under West Virginia Code § 55-17-2(2).4 The circuit court granted Respondents’ joint tolled for thirty days from the date the notice is provided and, if received by the government agency as evidenced by the return receipt of the certified mail, for thirty days from the date of the returned receipt. motion to dismiss Mr. Patton’s civil action, finding that sheriff’s departments are political subdivisions,5 and that West Virginia Code §§ 29-12A-1 through -186 does not contain a notice requirement or any applicable tolling of the general two-year statute of limitations.

For the purposes of this section: . . . (2) “Government agency” means a constitutional officer or other public official named as a defendant or respondent in his or her official capacity, or a department, division, bureau, board, commission or other agency or instrumentality within the executive branch of state government that has the capacity to sue or be sued[.]

The circuit court concluded that Mr. Patton’s action was filed outside of the statute of limitations and dismissed the action in September of 2017.

Mr. Patton alleges that following the dismissal of his claims, he learned that the daughter of the circuit judge who adjudicated this case worked as co-counsel on Mr. Patton’s criminal case during the discovery dispute regarding the dash-cam video. Because Mr. Patton believed that the daughter was involved in his criminal prosecution and in the dispute about the dash-cam video, he alleged this made her a material witness in the case, giving her more than a de minimis interest in it. So, Mr. Patton filed a motion to disqualify the circuit judge from the underlying civil matter.

In the motion to disqualify the circuit judge, Mr. Patton asserted that after he filed his complaint, he learned that Deputy Cardello initially lied about having previously disclosed the video in discovery, that the State then claimed for a period of months that the video could not be located, and that the video was eventually produced only after his counsel filed a motion to compel and refused to engage in plea negotiations until the video was produced. Mr. Patton alleged that a question existed as to whether there was an attempt to hide or otherwise suppress the video by intentionally misfiling it, or by never actually filing it at all, both of which he argued constituted police or prosecutorial misconduct. Mr. Patton alleged that the daughter’s testimony would most likely be needed given her personal involvement in the case.

After Mr. Patton’s motion to disqualify was denied by then-Chief Justice Loughry on October 3, 2017, Mr. Patton filed a complaint against the circuit judge with the Judicial Investigation Commission (JIC). Next, Mr. Patton filed a supplemental motion for disqualification with this Court informing the Court that he had filed a complaint with the JIC.7 Then-Chief Justice Workman issued an order denying Mr. Patton’s second motion on March 30, 2018.

Meanwhile, Mr. Patton moved to alter or amend the circuit court’s judgment, arguing that its decision to dismiss his civil claims was clearly erroneous because a sheriff should be considered a constitutional officer within the executive branch, tolling the statute of limitations under the notice provision of West Virginia Code § 55-17-1.8 The circuit court denied Mr. Patton’s motion on April 6, 2018, finding no grounds for reconsideration, as there were no manifest errors of law or fact to be corrected because county sheriff’s departments, county commissions, city governments, and individuals employed by those respond to them and the Legislature requires more timely information regarding these actions, all in order to protect the public interest. The Legislature further finds that protection of the public interest is best served by clarifying that no government agency may be subject to awards of punitive damages in any judicial proceeding.

(b) The Legislature further finds that there are numerous actions, suits and proceedings filed on behalf of the State of West Virginia or a government agency thereof, that may affect the public interest. Depending upon the outcome, this type of litigation may have significant consequences that can only be addressed by subsequent legislative action. In such litigation, the Governor, Department of Administration and the Legislature may not be directly involved as parties.

Additionally, the Governor, Department of Administration and the Legislature need advance notice of potential moneys that may become available as a result of seizure or forfeiture of assets under state or federal criminal law. The Governor, Department of Administration and the Legislature require more timely information regarding these actions in order to protect the public interest. The Legislature further finds that protection of the public interest is best served by requiring notice to the Governor, the Secretary of the Department of Administration, the President of the Senate and the Speaker of the House of Delegates of any action brought on behalf of the state or a government agency thereof, which may result in a judgment, award or settlement and when the state or a government agency thereof, becomes eligible for moneys from state or federal seizure or forfeiture of assets in criminal cases.

(c) It is the purpose of this article to establish procedures to be followed in certain civil actions filed on behalf of or against state government agencies and their officials. entities are political subdivisions and are not within the executive branch of state government; and that Mr. Patton did not provide any new evidence that would justify altering or amending the circuit court’s prior order. Mr. Patton now appeals that order.

II. STANDARD OF REVIEW

Regarding our standard of review, “‘“[a]ppellate review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus point 2, State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).’ Syl. Pt. 1, Albright v. White, 202 W. Va. 292, 503 S.E.2d 860 (1998).”9 And, “[t]he standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed.”10

III. DISCUSSION

A. Motion to Disqualify

In his first assignment of error, Mr. Patton alleges that the circuit judge should have been disqualified from presiding over the case because he had a close family member with an interest in Mr. Patton’s civil case who, at a minimum, would serve as a material witness. Mr. Patton contends that under West Virginia Code of Judicial Conduct 2.11(A)(2),11 the circuit judge should have recused himself.

Mr. Patton has previously raised this issue twice before this Court. Both times, the Court denied his request for disqualification.12 In a letter to this Court responding to the motion to disqualify him, the circuit judge explained that if his daughter was going to have involvement in Mr. Patton’s civil case, his recusal was warranted. But at that stage of the proceedings, the case had been dismissed and the only matter left for decision was Mr. Patton’s motion to alter or amend the judgment. The only additional grounds in his supplemental motion for disqualification was that Mr. Patton had filed a complaint against the circuit judge before the JIC. In response to that, the circuit judge stated he did not feel that a voluntary recusal was warranted but recognized that if the circumstances changed and it appeared that his daughter was going to have involvement in the case, his recusal was mandated. Mr. Patton alleges that his motion for disqualification specifically stated that the daughter would, in fact, need to be called as a witness, at least for a deposition, and that the circuit judge’s letter did not attempt to reconcile his agreement that a potential conflict would arise should his daughter be involved in the case.

Mr. Patton’s motions for disqualification alleged the same facts now presented in this appeal. His motions were denied by prior orders of two Chief Justices, who both determined that the evidence offered by Mr. Patton in support of his motion to disqualify was insufficient to warrant disqualification. “The matter of judicial recusal and disqualification is a matter of discretion reposed solely in the presiding judge and the Chief Justice of this Court.”13 Mr. Patton, now reiterating the same argument, fails to offer any new evidence or argument in support of his assertion that the proceedings below were not fair.14 As such, we find no error.

B. Tolling of the Statute of Limitations

The next issue we consider is whether the sheriff’s department is appropriately characterized as a “government agency” under West Virginia Code § 55-17- 2. Mr. Patton contends that the circuit court erred when it found that the Berkeley County Sheriff’s Department is not a “government agency” for purposes of West Virginia Code § 55-17-2, a finding that, in turn denied him the tolling effect of § 55-17-3(a)(2).

Mr. Patton argues that county-level law enforcement have regularly been held to be members of the executive branch and any ambiguity must be resolved in favor of inclusion. Mr. Patton asserts that under Webster County Commission v. Clayton,15 because a sheriff is allowed to hire persons to aid him or her in the execution of duties as a “constitutional officer of the State,” a sheriff is unquestionably a constitutional officer such that any suit brought against a sheriff’s department is subject to the notice requirements of § 55-17-3(a)(2).16 He also contends that in State ex rel. Miller v. Smith,17 and Games-Neely v. Sanders,18 this Court held that prosecuting attorneys are officers of the executive branch of government. Mr. Patton further alleges that § 55-17-6 (2016) provides that the notice provision of West Virginia Code § 55-17-3 is to be interpreted broadly,19 and that county- level governmental agencies have no reason to require less notice than their state-level counterparts so there is no cognizable reason why actions against political subdivisions should not raise the same concerns as “purely state level agencies[.]” We do not find Mr. Patton’s arguments persuasive.20

Article 17 is entitled “Procedures for Certain Actions against the State.” Section 55-17-1 provides that the purpose of Article 17 is to establish procedures to be followed in certain civil actions filed on behalf of or against state government agencies and their officials. Further, West Virginia Code § 55-17-2(2) provides, in pertinent part:

“Government agency” means a constitutional officer or other public official named as a defendant or respondent in his or her official capacity, or a department, division, bureau, board, commission or other agency or instrumentality within the executive branch of state government that has the capacity to sue or be sued[.][21] West Virginia Code § 55-17-3(a)(2) further provides:

(2) The written notice to the chief officer of the government agency and the Attorney General required by subdivision (1) of this subsection is considered to be provided on the date of mailing of the notice by certified mail, return receipt requested. If the written notice is provided to the chief officer of the government agency as required by subdivision (1) of this subsection, any applicable statute of limitations is tolled for thirty days from the date the notice is provided and, if received by the government agency as evidenced by the return receipt of the certified mail, for thirty days from the date of the returned receipt.[22] There is no definition of “executive branch” provided in West Virginia Code § 55-17-1, but Article VII, § 1 of the West Virginia Constitution provides that the executive department consists solely of “a governor, secretary of state, auditor, treasurer, commissioner of agriculture and attorney general, who shall be ex officio reporter of the court of appeals.” While a sheriff’s department performs executive functions, it is an executive agency of the county government. Sheriff’s departments are funded at the county level, are not included in the state budget, and are county organizations under Article IX, § 1 of the West Virginia Constitution.23

This Court recently refused to extend the tolling provision at issue here to local agencies. In Magee v. Racing Corporation of West Virginia,24 this Court was not directly asked to consider whether the Nitro police department, city, and an officer were “government agencies” within § 55-17-2. But, we concluded that the statute of limitations was not tolled as to these agencies even though the police department was given a thirty- day notice in that matter, as in this case.25 The petitioner in that matter treated the city entities as non-state governmental defendants.

The circuit court found an unpublished opinion from the Southern District of West Virginia, Braxton v. Joynes,26 instructive. In Joynes, the plaintiff filed an action against Mr. Joynes, John A. Dunn of the Raleigh County Sheriff’s Department, Garland A. Burke of the Fayette County Sheriff’s Department, Gant Montgomery of the Beckley City Police, the Raleigh County Commission, the Fayette County Commission, and the City of Beckley, among others, alleging violations of the Equal Protection and Due Process clauses of the United States Constitution pursuant to 42 U.S.C. § 1983 and violations of the West Virginia Constitution.27 The defendants moved for summary judgment contending that plaintiff’s claims were barred by the relevant statute of limitations and because defendants Joynes, Dunn, Burke, and Montgomery were immune from liability.28 In granting the defendants’ motion for summary judgment, the District Court held:

[c]ounty commissions, city governments or the individuals employed by those entities are not considered to be within the “executive branch of state government.” Therefore, § 55-17-3 upon which Plaintiff relies in is inapplicable to this action. Rather, claims against such entities are controlled by the Governmental Tort Claims and Insurance Reform Act . . . Pursuant to [that Act] in [an] action against a political subdivision the complaint and summons must be served “in the manner prescribed by law for the rules of civil procedure.” W. Va. Code § 29-12A-13(d). Thus, unlike suits against a “government agency” there is no notice requirement nor is there a tolling of the applicable statute of limitations.[29] Finding Braxton persuasive as to the specific issue before us, this Court holds that county sheriff’s departments and the law enforcement officials they employ are not within the executive branch of state government for purposes of the tolling provisions of West Virginia Code § 55-17-3(a)(2).30 West Virginia Code § 29-12A-6 does not contain a requirement to provide a political subdivision with a notice of intent to file suit, nor does it contain a tolling exception to the statute of limitations when the plaintiff provides notice of intent to file suit against a political subdivision.31 For these reasons, we conclude that (a sheriff is an employee of a political subdivision, the county commission, and is therefore immune from personal tort liability for acts occurring within the scope of employment, unless one of the exceptions noted in W. Va. Code § 29-12A-5(b) is applicable.); See also Haney v. Cty. Comm’n, Preston Cty., 212 W. Va. 824, 827, 575 S.E.2d 434, 437 (2002) (county commission is a political subdivision of the state); Fisk v. Lemons, 201 W. Va. 362, 363, 497 S.E.2d 339, 340 (1997) (analyzing cause of action against county sheriff’s department as a political subdivision.) the circuit court properly determined that West Virginia Code § 55-17-3(a)(2) did not apply to toll Mr. Patton’s claims against the Respondents before us in this case.

IV. CONCLUSION

For the reasons stated above, the April 6, 2018 order of the Circuit Court of Berkeley County denying Mr. Patton’s Motion to Alter or Amend Judgment is affirmed.

Affirmed.