A Precarious Constitutional Right to Damages
The Supreme Court of West Virginia has held that public hospital employees who were unconstitutionally discharged for distributing leaflets had a right of action under the West Virginia Constitution for reinstatement and backpay. 1 A decade later, the Court used broad language when recognizing a private right of action against municipalities and local governments that violate the Due Process Clause of the West Virginia Constitution, stating 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.” 2 The Court went on to hold that despite the existence of a constitutional right of action, the claim was barred because of statutory immunity. 3 Notwithstanding the broad language in Hutchison, the vitality of West Virginia’s constitutional-damages case law is unclear. The West Virginia Supreme Court recently declined to extend a private constitutional right of action to other provisions of the Constitution, such as its search-and-seizure provision. 4 Moreover, it is unclear whether any private constitutional rights of action exist against government employees in their personal capacities or if claims must be brought against cities and municipalities.
State and Local Non-Constitutional Tort Liability
West Virginia’s Constitution maintains near-absolute sovereign immunity for the State. 5 Plaintiffs can, however, bring claims against the State that are barred by sovereign immunity in the West Virginia Court of Claims, which is an administrative arm of the legislature charged with considering and investigating certain claims against the State and making recommendations to the legislature regarding the resolution of the claims. 6 The legislature has the ultimate power to approve or deny the award or resolution recommended by the Court of Claims. 7
Political subdivisions, including municipalities, are liable in certain instances of negligence, subject to an list of exceptions. 8 Government employee liability is largely a matter of common law. 9 Attempting to reconcile the confusing and ill-defined array of common-law immunity standards that West Virginia courts had articulated for government employees, the West Virginia Supreme Court said, “to the extent that governmental acts or omissions which give rise to a cause of action fall within the category of discretionary functions, a reviewing court must further determine whether the plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive in accordance with State v. Chase Securities, Inc. In absence of such a showing, both the State and its officials or employees charged with such acts or omissions are immune from liability.” 10