IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1999 Term
STATE OF WEST VIRGINIA EX REL. YOUTH SERVICES SYSTEMS, INC.
A WEST VIRGINIA CORPORATION,
HONORABLE RONALD E. WILSON
JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY
TRACY GALLOWAY, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF D'OMINIQUE GALLOWAY,
WRIT OF PROHIBITION
Submitted: February 16, 1999
Filed: May 13, 1999
David L. Wyant,
J. Sims, Esq.
Shuman, Annand, Bailey, Wyant & Robert G. McCoid, Esq.
Earles Sims & McCoid
Wheeling, West Virginia Wheeling, West Virginia
Attorney for Petitioner Attorneys for Respondents
JUSTICE WORKMAN delivered the Opinion of the Court.
1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
2. A private corporation that enters into a contract with an agency of this State for the provision of juvenile detention services does not meet the definition of a "political subdivision" under the Governmental Tort Claims and Insurance Reform Act, West Virginia Code §§ 29-12A-1 to -18 (1999), and is therefore not entitled to the immunity provisions set forth in the Act.
Youth Services Systems
("Youth Services") seeks a writ of prohibition to prevent enforcement of the
rulingSee footnote 1 1 issued by the
Circuit Court of Ohio County, in which the court found that Youth Services is not a
"political subdivision" within the meaning of the Governmental Tort Claims and
Insurance Reform Act (the "Act"), West Virginia Code §§ 29-12A-1 to -18
(1999), and is therefore not entitled to immunity from prosecution for a wrongful death
action. After closely examining the statutory provisions at issue, we find no error in the
lower court's ruling and accordingly, we refuse to grant a writ of prohibition.
I. Factual and Procedural Background
Mrs. Tracy Galloway, Plaintiff below, initiated delinquency proceedings against her fourteen-year-old son, D'Ominique, with the filing of a petition on September 22, 1995, wherein she alleged that D'Ominique was both incorrigible and a runaway.See footnote 2 2 Three days later, D'Ominique was arrested and placed at the Northern Regional Juvenile Detention Facility.See footnote 3 3 Following the detention hearing on September 26, 1995, the circuit court entered an order on September 27, 1995, requiring D'Ominique to remain at the Northern Regional detention facility. The dispositional hearing was held on September 28, 1995, and the circuit court directed that D'Ominique be placed at Olympic CenterSee footnote 4 4 in Kingwood, West Virginia, for inpatient drug and alcohol treatment. Both Mrs. Galloway and the juvenile probation officer agreed to the placement. The dispositional order further provided that D'Ominique was to have a psychological examination while at the Olympic Center. When the Ohio County Juvenile Probation Officer, Susan Mortakis, contacted the Olympic Center, Ms. Mortakis was purportedly told that she had to obtain preapprovalSee footnote 5 5 from the West Virginia Medical InstituteSee footnote 6 6 before the Olympic Center could accept D'Ominique. Youth Services claims that when it contacted West Virginia Medical Institute for the necessary approval,See footnote 7 7 it was told that the transfer would not be authorized until a psychiatric evaluation was performed and a treatment plan submitted.See footnote 8 8
After holding the
adjudicatory hearing on October 12, 1995, the circuit court placed D'Ominique on probation
for one year.See footnote 9 9 Shortly
after his release from the Northern Regional detention facility and while in the custody
of his mother, D'Ominique ingested controlled substances and shot himself in the head. He
later died as a result of the gunshot wound. Although D'Ominique had been scheduled to
have a drug and alcohol evaluation on October 16, 1995, no such evaluation was performed
because of his releaseSee footnote 10 10
four days prior to the scheduled evaluation.
Mrs. Galloway instituted a
wrongful death suit against Youth Services and West Virginia Medical InstituteSee footnote 11 11 on February 13,
1997, asserting negligent failure to approve and secure treatment for D'Ominique. On
February 12, 1998, Youth Services filed a motion for summary judgment wherein it claimed
immunity from suit under the Act. Judge Wilson concluded, following a hearing on the
motion, that Youth Services was not a "political subdivision" entitled to
immunity under the Act. Seeking to prevent enforcement of the lower court's denial of
statutory immunity, Youth Services requests that a writ of prohibition issue.
II. Standard of Review
We recently set forth the controlling standard of review for writs of prohibition that do not involve a challenge to the lower court's assertion of jurisdiction:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. Pt. 4, State ex rel. Hoover v Berger, 199 W. Va. 12, 483 S.E.2d 12
(1996). In this case, Youth Services contends that the circuit court's ruling with regard
to its entitlement to immunity was clearly erroneous as a matter of
Youth Services bases its argument for immunity on two separate provisions of the Act. The first section concerns immunity for "enforcement of the lawful orders of any court." W. Va. Code § 29-12A-5(a)(3). Youth Services relies secondarily on the statutory immunity extended under the Act for the provision, equipping, lawful operation or maintenance of any prison, jail, or correctional facility. See W. Va. Code § 29-12A-5(a)(14). Before we consider the applicability of these immunity provisions, however, there is an initial hurdle that must be met. Since the immunity provisions at issue apply only to political subdivisions, Youth Services must first qualify as a "political subdivision" to invoke statutory immunity.
The term "political
subdivision" is defined in West Virginia Code § 29-12A- 3(c) as:
any county commission, municipality and county board of education; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; any instrumentality supported in most part by municipalities; any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities or towns; a combined city-county health department . . .; public service districts; and other instrumentalities including, but not limited to, volunteer fire departments and emergency service organizations as recognized by an appropriate public body and authorized by law to perform a government function: Provided That hospitals of a political subdivision and their employees are expressly excluded from the provisions of this article.
In its attempt to come within the statutory parameters of a political subdivision, Youth Services looks to the definitional language which references "any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties, cities, or towns." In circular fashion, Youth Services suggests that since the youth detention services it provides qualify as a government function, it necessarily follows that it is a "public body charged by law" to perform such governmental services. Concerning the critical issue of whether it is a public body, Youth Services acknowledges that the term "public body" is not defined within the Act and then proceeds to a completely distinct statutory enactment to locate a favorable definition of such term. Citing the definition provided in the West Virginia Freedom of Information Act ("FOIA"),
West Virginia Code §§ 29B-1-1 to -7 (1998), Youth Services
appropriates the closing catch- all FOIA language that defines a "public body"
as "any other body which is created by state or local authority or which is primarily
funded by the state or local authority." W. Va. Code § 29B-1-2(3). Glossing
over significant analytical obstacles, Youth Services concludes that because it gets most
of its money from the DHHR and because DHHR is statutorily authorized to provide services
for juvenile offenders,See footnote 12 12
Youth Services therefore qualifies as a public body under the FOIA definition of such
term. Having qualified itself as a public body, Youth Services concludes that it therefore
comes within the Act's definition of a political subdivision based on its provision of a
governmental function. See W. Va. Code § 29-12A-3(c).
Dismantling the argument constructed by Youth Services, Plaintiff contends that Youth Services' reliance on the Act is misplaced as the definition of "political subdivision" found in West Virginia Code § 29-12A-3(c) clearly encompasses only governmental entities. As support for its position, Plaintiff cites a principle of statutory construction known as noscitur a sociis or "'a word is known by the company it keeps.'" Banker v. Banker, 196 W. Va. 535, 545, 474 S.E.2d 465, 475 (1996) (quoting Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 311, 465 S.E.2d 399, 413 n.10 (1995)). The entities expressly identified in the statutory definition of the term "political subdivision"
include "county commission," "municipality,"
"county board of education," "combined city- county health
department," and "public service district." W. Va. Code
§ 29-12A-3(c). Each of these entities, as Plaintiff emphasizes, is clearly
governmental in both origin and purpose. Plaintiff contends that this Court's recognition
in Randall v. Fairmont City Police Dep't, 186 W. Va. 336, 412 S.E.2d 737 (1991), that
"[a] 'political subdivision' includes a municipality, a county commission, a county
board of education and certain other local governmental entities" supports her
position that only governmental entities can qualify as "political
subdivisions." Id. at 341, 412 at 742 n.3 (emphasis supplied); see also Cook v.
McDowell County Emergency Ambulance Serv. Auth., Inc., 191 W. Va. 256, 445 S.E.2d 197
(1994) (equating "public governmental entities" with "political
In furtherance of its
contention that Youth Services cannot come within the definitional parameters of a
"political subdivision," Plaintiff identifies another well-accepted canon of
statutory construction, which requires that "'the words of a statute are to be given
their ordinary and familiar significance and meaning.'" Keatley v. Mercer County Bd.
of Educ., 200 W. Va. 487, 491, 490 S.E.2d 306, 310 (1997) (quoting Metropolitan Property
and Liab. Ins. Co. v. Accord, 195 W. Va. 444, 450, 465 S.E.2d 901, 907 (1995)). Citing
Black's Law Dictionary, Plaintiff observes that the definition of a political subdivision
is "[a] division of the state made by proper authorities thereof, acting within their
constitutional powers, for the purpose of carrying out a portion of those functions of
state which by long usage and inherent necessities of government have always been regarded
as public." Black's Law Dictionary at p.1043 (5th ed. 1979). Since Youth Services is
a privately incorporated entity, Plaintiff argues that it clearly is not "a division
of the state made by the proper authorities." Id. As such, Youth Services cannot come
within the customary meaning associated with the term "political subdivision."
Plaintiff finds additional
significance in the fact that the terms "private corporations,"See footnote 13 13 "contractors,"
or "independent contractors" are glaringly absent from the delineation of what
constitutes a "political subdivision." See W. Va. Code § 29-12A-3(c).
Moreover, given that the Act expressly excludes both "contractors" and
"independent contractors" f rom the definition of the term "employee,"
Plaintiff argues that the Legislature cogently stated its intention that independent
contractors are not entitled to the immunity provisions extended therein. See W. Va. Code
§ 29-12A-3(a). Since Youth Services is a privately created corporation, Plaintiff
maintains that it simply cannot come within the statutory definition of "political
subdivision." See W. Va. Code § 29-12A-3(c).
Refuting Youth Services' characterization of itself as a political subdivision, Plaintiff suggests instead that Youth Services is an independent contractor. Plaintiff observes that all of the rights and obligations that Youth Services has in connection with its operation of the Northern Regional Detention Facility arise solely from the contract that it entered into with DHHR. Thus, as Plaintiff explains, the status of Youth Services is inextricably tied to that contractual relationship. As further proof of the independent contractor status of Youth Services, Plaintiff looks to the West Virginia Juvenile Offender Rehabilitation Act, West Virginia Code §§ 49-5B-1 to -7 (1979), to suggest that the Legislature clearly envisioned that private agencies, such as Youth Services, would operate detention facilities. The statutory provision in effect at the time of D'Ominique's deathSee footnote 14 14 defined a juvenile facility as "a place . . .[or] institution . . . which is used for the lawful custody and treatment of juveniles and may be owned or operated by public or private agencies." W. Va. Code § 49-5B-3(6) (repealed 1997). Despite the repeal of that particular statutory provision, the Juvenile Offender Rehabilitation Act still provides for private agencies to contract with the DHHR for the purpose of providing services to juvenile offenders. See W. Va. Code § 49-5B-4(c) (1997) (stating that DHHR is "authorized to enter into cooperative arrangements and agreements with private agencies or with agencies of the state and its political subdivisions to effectuate the purpose of this article") (emphasis supplied). Plaintiff maintains that Youth Services undeniably typifies a private agency of the sort that the Legislature fully contemplated and authorized to provide juvenile services. See id.
Based on the foregoing
arguments, Plaintiff maintains that because Youth Services is an independent contractor
incapable of meeting the definition of a "political subdivision," the Act's
immunity provisions do not apply. We agree. Notwithstanding the sophistic attempts of
Youth Services to find legislative authorization for its existence, the fact remains that
the Legislature did not affirmatively act to create Youth Services. Contrariwise, Youth
Services is simply an ordinary private corporation whose incorporation resulted through
the same magisterial means as hundreds of other West Virginia corporations. The contention
of Youth Services that its provision of legislatively-authorized services recasts its
corporate status to that of "political subdivision" is simply untenable.
Similarly fallacious is Youth Services' complementary position that by virtue of its
receipt of the majority of its funds from DHHR, its private corporation status is
converted to that of a public body.See footnote 15 15 See also 4-H Road Community Ass'n v. West Virginia Univ. Found., Inc., 182
W. Va. 434, 388 S.E.2d 308 (1989) (holding that university foundation was not a
"public body" subject to FOIA because it was formed by private citizens pursuant
to general corporate laws; no legislative mandate predated its incorporation; its location
was not on state property; it did not utilize state employees; and selection of its board
of directors, as well as their duties, was governed by corporate by-laws). Accordingly, we
hold that a private corporation that enters into a contract with an agency of this State
for the provision of juvenile detention services does not meet the definition of a
"political subdivision" under the Act and is therefore not entitled to the
immunity provisions set forth in the Act.
Since Youth Services is
not a political subdivision, it cannot invoke the immunity provisions set forth in the
Act.See footnote 16 16 Based on
our conclusion that Youth Services has failed to demonstrate that the lower court's ruling
was clearly erroneous as a matter of law, we determine that Youth Services is not entitled
to a writ of prohibition. See Berger, 199 W. Va. at 14-15, 483 S.E.2d at 14-15, syl. pt 4.
Accordingly, the writ of prohibition sought by Youth Services is hereby denied.
Footnote: 11 Two orders were entered in connection with the lower court's ruling. Initially, the court by order dated September 2, 1998, summarily denied the summary judgment ruling. By separate order dated November 17, 1998, the circuit court detailed its reasoning for the ruling. The second ruling was prompted by a letter from Youth Services specifically requesting the court's bases for its ruling.
Footnote: 22 While D'Ominique was housed at the detention center, his mother filed a second petition against him, alleging that he was in possession of crack cocaine with intent to deliver.
Footnote: 33 Youth Services, a non-profit corporation, operates the Northern Regional Juvenile Detention Facility pursuant to a contract with the DHHR.
Footnote: 44 The record fails to describe the nature of this facility.
Footnote: 55 Although Youth Services takes the position that preapproval was required by West Virginia Medical Institute before Olympic Center would agree to the transfer, Plaintiff asserts that only the preparation of and submission of a specific form--"MCM-1"--was required. Plaintiff asserts that it was the responsibility of Youth Services to complete the MCM-1 form.
Footnote: 66 West Virginia Medical Institute has a contract with the Health Care Financial Administration of the United States Department of Health and Human Services for the purpose of evaluating, monitoring, and approving medical treatment for Medicare recipients. Since D'Ominique was a Medicaid beneficiary, his placement request was required to be submitted to West Virginia Medical Institute for preauthorization approval pursuant to its contract with the United States Department of Health and Human Services.
Footnote: 77 See supra note 5.
Footnote: 88 West Virginia Medical Institute later explained that the psychiatric evaluation was a prerequisite to placement based on D'Ominique's diagnosis of major depression. There is, however, no evidence that D'Ominique was ever diagnosed as suffering from depression.
Footnote: 99 There is nothing in the record indicating why the circuit court seemingly altered its prior position regarding the need to have D'Ominique submit to a drug and alcohol evaluation. The court's decision to place D'Ominique on probation without first securing the evaluation appears inconsistent to this Court.
Footnote: 1010 Youth Services observes that no objection was made to D'Ominique's release by his mother, his attorney, the probation officer, or the prosecuting attorney.
Footnote: 1111 West Virginia Medical Institute has entered into a settlement agreement with Mrs. Galloway.
Footnote: 1212 See W. Va. Code 49-5B-4(b), (c) (1998).
Footnote: 1313 Plaintiff readily admits that the Act contemplates that a separately incorporated entity could come within the Act if such entity was created by a county or municipal government. See W. Va. Code § 29-12A-3(c).
Footnote: 1414 Although this statutory provision was repealed in 1997, it clearly was in effect at the time of the incident which precipitated the wrongful death suit.
Footnote: 1515 If this proposition was true, we can think of numerous entities who could join Youth Services in claiming they, too, are entitled to immunity under the Act because of their receipt of significant government funding and their provision of services which are, arguably, governmental in nature.
Footnote: 1616 Because we determine that Youth Services does not qualify as a "political subdivision" under the Act, we do not address its entitlement to immunity under the specific statutory provisions upon which it relied. See W. Va. Code 29-12A-5(a)(3), (14).