IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
Spring 2024 Term FILED _____________________ April 15, 2024 released at 3:00 p.m. ASHLEY N. DEEM, DEPUTY CLERK No. 22-ICA-163 INTERMEDIATE COURT OF APPEALS _____________________ OF WEST VIRGINIA
HANK HECKMAN and LOREN GARCIA, Plaintiffs Below, Petitioners,
v.
BETSY JIVIDEN, JEFF SANDY, and PATRICK MORRISEY, Defendants Below, Respondents. ________________________________________________________
Appeal from the Circuit Court of Kanawha County Honorable Tera Salango, Judge Civil Action Nos. 21-C-903 and 21-C-904
AFFIRMED _________________________________________________________
Submitted: January 10, 2024 Filed: April 15, 2024
Jeremy B. Cooper, Esq. Johnnie E. Brown, Esq. Blackwater Law PLLC James A. Muldoon, Esq. Aspinwall, Pennsylvania Pullin, Fowler, Flanagan, Brown & Counsel for Petitioners Poe, PLLC Charleston, West Virginia Counsel for Respondent Morrisey
William E. Murray, Esq. Bailey & Wyant, PLLC Charleston, West Virginia Counsel for Respondents Jividen and Sandy
CHIEF JUDGE SCARR delivered the Opinion of the Court. SCARR, CHIEF JUDGE:
Petitioners, Hank Heckman and Loren Garcia, appeal the Orders granting the
Respondents’ motions to dismiss entered by the Circuit Court of Kanawha County on
September 14, 2022. Petitioners brought various claims against the Respondents in their
individual and official capacities for their involvement in the creation and implementation
of a West Virginia Department of Corrections and Rehabilitation policy that changed the
good time and parole eligibility for those reincarcerated after the revocation of their
supervised release. The implementation of the new policy led to the rearrest and
reincarceration of individuals who had already been released on parole, including the
Petitioners. After the Petitioners’ release pursuant to State ex rel. Phalen v. Roberts, 245
W. Va. 311, 858 S.E.2d 936 (2021), they brought suit, seeking damages, injunctive relief,
and declaratory judgment for various tort and constitutional claims. The circuit court found
that the Respondents were entitled to absolute, qualified, and statutory immunity from
liability regarding their involvement with the creation and implementation of the policy.
The circuit court also concluded that the Respondents were not “persons” under 42 U.S.C.
§ 1983, that the Petitioners had failed to state a claim for a taking and for money damages,
and that Respondent Morrisey’s office was entitled to sovereign immunity.
Having reviewed the parties’ arguments, the record on appeal, and the
controlling law, we affirm the circuit court’s September 14, 2022, dismissal orders. We
affirm for the reasons discussed below, on the basis of the Respondents’ immunity from
liability regarding the creation and implementation of the policy.
1 I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Hank Heckman was indicted in Taylor County, West Virginia, in
2010 for sexual offenses, and was subsequently committed as a youthful offender pursuant
to a plea agreement. Following Mr. Heckman’s commitment as a youthful offender, he was
placed on three years of supervised probation and ten years of extended supervised release.
Mr. Heckman violated his supervised probation and was reincarcerated until he completed
his term of supervised probation. Once released, Mr. Heckman began his ten-year term of
supervised release. Mr. Heckman’s supervised release was subsequently revoked, and on
July 20, 2017, he was ordered to serve all ten years of his supervised release in prison. On
June 11, 2020, Mr. Heckman was released on parole after serving one fourth of his ten-
year sentence.
Petitioner Loren Garcia was indicted in Randolph County, West Virginia, in
2013 for child abuse offenses. Ms. Garcia pleaded guilty and was sentenced to an
indeterminate term of not less than one nor more than three years in prison followed by ten
years of extended supervised release. After Ms. Garcia was released from prison and placed
on supervised release, she was indicted for First Degree Robbery in Harrison County, for
which she pleaded guilty and was sentenced to a determinate term of ten years in prison.
As a result, Ms. Garcia’s supervised release in Randolph County was revoked and she was
ordered to serve three years of her ten-year supervised release term in prison, to run
consecutively to the prison term imposed in Harrison County, with an additional thirty-
2 year period of supervised release to begin upon her release. Ms. Garcia began serving her
prison terms for the Harrison County case and the revocation of her Randolph County
supervised release on April 12, 2016. On December 5, 2019, Ms. Garcia was released on
parole after serving more than one fourth of her thirteen-year term. Both Petitioners were
released on parole after only serving a portion of the prison terms imposed after the
revocation of their supervised release due to the accumulation of good time pursuant to
West Virginia Code § 62-12-13 (2021) and West Virginia Code § 15A-4-17 (2021).
Following the onset of the Covid-19 pandemic, certain inmates in the custody
of the Department of Corrections and Rehabilitation (“DOCR”) were awarded good time
credit for their efforts in making masks and cleaning to help mitigate the spread of Covid-
19 in DOCR facilities. As part of the DOCR’s review of these inmates’ timesheets for the
award of good time, someone at the DOCR determined that certain inmates selected to
receive good time were ineligible for good time. As a result, on August 7, 2020,
Respondent Betsy Jividen, the DOCR Commissioner, put the good time award program
under review. At the time of this review, DOCR Policy Directive 151.02 governed good
time eligibility. It did not limit good time eligibility for persons whose supervised release
had been revoked, such as the Petitioners, who had already been released by this time. In
October of 2020, the DOCR adopted a new policy that made persons whose supervised
release had been revoked ineligible for parole and good time credit. As a result, on
November 23, 2020, Policy Directive 151.06, which removed good time eligibility for
persons whose supervised release had been revoked, was implemented. No formal
3 administrative rule regarding parole eligibility was issued, as Policy Directive 151.06 was
an internal DOCR policy.
On December 7, 2020, Respondent Jividen signed a series of arrest warrants
for those individuals who had previously had their supervised release revoked but were
subsequently released on parole based on good time credit. The reason alleged for the
arrests was “clerical error or mistake.” Two of these warrants were for Mr. Heckman and
Ms. Garcia, and another was for an individual named Scott Phalen. There were no
allegations that they had violated the terms of their parole. Soon after the issuance of these
warrants, Mr. Heckman, Ms. Garcia, and Mr. Phalen were arrested and reincarcerated.
On December 22, 2020, Ms. Garcia filed an original jurisdiction habeas
action in the Supreme Court of Appeals of West Virginia (“SCAWV”) predicated on the
theory that regardless of whether the DOCR policy changes were valid, such changes could
not be retroactively applied to persons whose crimes occurred before the policy change
took place on ex post facto principles. On December 23, 2020, Mr. Phalen filed a similar
original jurisdiction habeas with the SCAWV which was consolidated with Ms. Garcia’s.
The matter was set for oral argument to be held on April 14, 2021.
On March 25, 2021, SB 713 was introduced in the West Virginia Senate,
which codified the DOCR’s policy change regarding the ineligibility of good time for
persons whose supervised release had been revoked but restored the good time that was
4 previously taken from persons revoked from supervised release up to October 21, 2020.
SB 713 also provided absolute immunity to the DOCR and its agents for reincarcerating
individuals based on the change in good time policy. SB 713 was signed into law by the
Governor on April 19, 2021, with an effective date of April 30, 2021, amending West
Virginia Code § 15A-4-17.
On April 13, 2021, the day before oral argument in the SCAWV, the DOCR
preemptively recalculated Ms. Garcia’s good time based on SB 713 and determined that
she had sufficient good time to discharge her three-year sentence and be parole eligible for
her ten-year sentence. Ms. Garcia was released that same day, and thus her habeas petition
was dismissed as moot. On April 27, 2021, Mr. Heckman filed an original jurisdiction
habeas with the SCAWV on the same basis as the habeas petitions filed by Ms. Garcia and
Scott Phalen. On June 16, 2021, the SCAWV issued its decision in State ex rel. Phalen v.
Roberts, 245 W. Va. 311, 858 S.E.2d 936 (2021), holding that persons who had their
supervised release revoked remained parole eligible, and that the DOCR was not permitted
to reduce eligibility for good time for persons who had their supervised release revoked
when their underlying crimes were committed prior to the effective date of SB 713, due to
ex post facto principles. As a result of Phalen, Mr. Heckman was released on parole on
June 24, 2021, and his habeas petition was thus dismissed as moot.
5 On October 8, 2021, Mr. Heckman and Ms. Garcia, both individually and on
behalf of a class of persons similarly situated, filed this civil action. Their Complaint
asserted the following claims and relief:
• a declaration that the absolute immunity provision of SB 713 (codified as W. Va. Code § 15A-4-17(p)) is unconstitutional; • an injunction preventing the Respondents from relying on the absolute immunity provision in litigation; • “Civil RICO” pursuant to 18 U.S. §1961-1968 for the Respondents’ alleged enterprise formed to advance Governor Justice’s political interests by changing the good time and parole eligibility policies to prevent any perception of leniency to sex offenders; • assault and battery for the effectuation of the unlawful arrests; • false imprisonment; • abuse of process for issuing the warrants for arrest for nonexistent clerical error or mistake; • malicious prosecution; • violation of the Eighth Amendment of the U.S. Constitution for detaining people beyond the termination of their sentences; • violation of the Fourth Amendment of the U.S. Constitution for the unlawful seizure; • violation of the Fifth and Fourteenth Amendments to the U.S. Constitution for failing to provide Heckman and Garcia any due process before reincarcerating them; • violation of the Ex Post Facto clause of the U.S. Constitution; • an unlawful taking under the West Virginia Constitution for depriving Heckman and Garcia of their right to earn an income; • damages pursuant to W. Va. Code § 55-7-9, which authorizes a cause of action for damages sustained for violation of a statute, for Respondents’ violation of W. Va. Code § 62-12-13(b)(1)(A) and W. Va. Code § 15A-4-17(a); and • civil conspiracy for the Respondents’ concerted action and common plan to commit the torts outlined in the complaint.
6 After the Complaint was filed, Respondents Jividen and Sandy filed a joint
motion to dismiss, and Respondent Morrisey and the Attorney General’s office filed their
own motion to dismiss. These motions raised several defenses, including sovereign
immunity, absolute prosecutorial immunity, absolute immunity related to administrative
rule-making functions, absolute statutory immunity stemming from West Virginia Code §
15A-4-17(p), and qualified immunity. On August 31, 2022, the circuit court held oral
argument regarding these motions.
On September 14, 2022, the circuit court entered orders granting the
Respondents’ motions to dismiss. Regarding Respondents Jividen and Sandy, the circuit
court concluded that they were entitled to absolute immunity pursuant § 15A-4-17(p); that
they are agents of the State, therefore they are not “persons” under 42 U.S.C. §1983 and
no respondeat superior liability exists under 42 U.S.C. § 1983; that Petitioners failed to
state a claim for a taking under the West Virginia Constitution because they did not assert
that property was taken; that there is no independent cause of action for money damages
pursuant to the West Virginia Constitution; that Respondents Jividen and Sandy are entitled
to qualified immunity because they did not violate a clearly established right because
Phalen had not been decided before the Petitioners were reincarcerated; and that
Respondents Jividen and Sandy were entitled to absolute immunity because their actions
stem from administrative policy-making.
7 Regarding Respondent Morrisey and the Attorney General’s Office, the
circuit court concluded that they were entitled to absolute immunity for performing
statutory prosecutorial duties; that they were not a “person” under 42 U.S.C. §1983; that
they were entitled to sovereign immunity since the Complaint did not allege that recovery
was sought under the limits of the State’s liability insurance policy; and they were entitled
to qualified immunity because making legal arguments on behalf of the State is a
discretionary function and his arguments did not violate the Rules of Professional
Responsibility. This appeal followed.1
II. STANDARD OF REVIEW
Our standard of review is well settled. “A circuit court's decision that a
complaint fails to state a claim on which relief can be granted is a ruling of law, and we
review such a decision de novo.” See Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).
The ultimate determination of whether qualified or statutory immunity bars a civil action is one of law for the court to determine. Therefore, unless there is a bona fide dispute as to the foundational or historical facts that underlie the immunity determination, the ultimate questions of statutory or qualified immunity are ripe for summary disposition.
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996). With
this plenary standard in mind, we address the parties’ arguments.
1 This Court held oral argument on January 10, 2024. 8 III. DISCUSSION
The issue facing this Court is to determine what immunity, if any, to which
the Respondents are entitled. The State enjoys, with some exceptions, a near-absolute
degree of protection from lawsuit or liability, recognized as sovereign immunity. See W.
Va. Const. art. VI, § 35; Pittsburgh Elevator Co. v. W. Virginia Bd. of Regents, 172 W. Va.
743, 749–57, 310 S.E.2d 675, 681–89 (1983). Additionally, the employees, officials, and
agents of the State (“public officials”) enjoy different but related immunities that shield
them from liability for much of the conduct that they undertake in service to the State. See
W. Virginia Bd. of Educ. v. Marple, 236 W. Va. 654, 661, 783 S.E.2d 75, 82 (2015).
Although related, sovereign immunity and the immunities enjoyed by public officials differ
in their scope and purpose. Id. Sovereign immunity is greater in scope, as it is intended to
protect the public purse. The immunities of a public official often confer a lesser degree of
protection, as their purpose is not to preserve the public official from damages, but to allow
them to perform their duties freely. See id. A public official can receive either qualified or
absolute immunity, depending upon the nature of the act and the nature of their duties.
Parkulo v. W. Virginia Bd. of Prob. & Parole, 199 W. Va. 161, 176, 483 S.E.2d 507, 522
(1996). Qualified immunity is, intuitively enough, a lesser degree of liability protection
than absolute immunity. See W. Virginia Reg'l Jail & Corr. Facility Auth. v. A.B., 234 W.
Va. 492, 507–08, 766 S.E.2d 751, 766–67 (2014).
9 “Qualified immunity is an immunity afforded to government agencies,
officials, and/or employees for discretionary activities performed in an official capacity.”
Maston v. Wagner, 236 W. Va. 488, 499, 781 S.E.2d 936, 947 (2015). Qualified immunity
shields public officials performing discretionary functions from civil liability so long as
their conduct does not violate clearly established statutory or constitutional rights that the
public official should have reasonably known. Id., at 499–500, 781 S.E.2d at 947–48. The
scope of protection provided by qualified immunity is meant to strike a balance between
the competing societal interests of holding public officials accountable when they exercise
power irresponsibly, and shielding them from harassment, distraction, and liability when
they perform their duties reasonably. Id., at 500, 781 S.E.2d at 948 (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity allows public officials to operate
with a freer hand, without fear of vexatious litigation holding them liable for difficult
decisions often required to be made by one performing the State’s business. “A policeman's
lot is not so unhappy that he must choose between being charged with dereliction of duty
if he does not arrest when he has probable cause, and being mulcted in damages if he does.”
Syl. in part, Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987) (overruled on
other grounds by Dale v. Ciccone, 233 W. Va. 652, 760 S.E.2d 466 (2014)).
The protections granted by qualified immunity protect not only public
officials, but society as a whole, as “claims frequently run against the innocent as well as
the guilty.” Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The societal costs qualified
immunity wards against include the expenses of litigation, the diversion of public officials’
10 energy from their duties, deterring able citizens from seeking public office, and the danger
that fear of being sued will discourage the effectual discharge of duty from all but the most
resolute or irresponsible of public officials. Id. In addition, because the discretionary acts
relevant to qualified immunity are necessarily influenced by the decisionmaker’s
experiences, values, and emotions, there often is no clear end to the relevant evidence. Id.
at 816. Judicial inquiry into subjective, discretionary acts therefore may entail overly broad
discovery, further increasing the burden of such litigation upon both public officials and
society. Id. at 817.
We find the case West Virginia Reg'l Jail & Corr. Facility Auth. v. A.B., 234
W. Va. 492, 766 S.E.2d 751 (2014), to be instructive to our analysis of a public official’s
immunity.
To determine whether the State, its agencies, officials, and/or employees are entitled to immunity, a reviewing court must first identify the nature of the governmental acts or omissions which give rise to the suit for purposes of determining whether such acts or omissions constitute legislative, judicial, executive or administrative policy-making acts or otherwise involve discretionary governmental functions. This critical first step may be evident from the nature of the allegations themselves or may be effectively accomplished by identifying the official or employee whose acts or omissions give rise to the cause of action.
A.B., 234 W. Va. at 507, 766 S.E.2d at 766. If this initial analysis finds that the
claims against the public official arise from judicial or legislative acts, or executive
11 or administrative policy-making, the public official is absolutely immune from
liability. Id.
Next, we must consider whether any claims that survive the first step
arise from ministerial or discretionary acts. See id. at 508, 766 S.E.2d at 767.
“Ministerial acts, by definition, are official acts which, under the law, are so well
prescribed, certain, and imperative that nothing is left to the public official's
discretion.” State v. Chase Sec., Inc., 188 W. Va. 356, 364, 424 S.E.2d 591, 599
(1992). As ministerial acts are so well-defined and proscriptive, they are essentially
“clearly established,” and thus a public officer would not be entitled to qualified
immunity and be liable for “nonperformance or misperformance of such acts.” See
id. In contrast, discretionary functions are those acts performed by a public official
which require the use of their discretion, judgements and decisions informed by their
knowledge, experience, values and emotions. See A.B., 234 W. Va. at 509, 766
S.E.2d at 768; Harlow, 457 U.S. at 816. Upon finding that a public official who was
not entitled to absolute immunity was performing discretionary functions, the last
step is for the reviewing court to determine whether the plaintiff has shown that the
public official violated clearly established and reasonably known statutory or
constitutional rights, or was otherwise fraudulent, malicious, or oppressive. A.B.,
234 W. Va. at 507, 766 S.E.2d at 766. In absence of such a showing, both the State
and its officials are immune from liability. Id.
12 There is only a narrow bandwidth of official conduct that a public
official may be held personally liable for under the doctrine of qualified immunity.
Because the purpose of qualified immunity is to allow public officials to exercise
their official discretion in the discharge of their duties without constant fear of
lawsuits, the sweep of qualified immunity is necessarily broad. Hutchison, 198 W.
Va. at 148, 479 S.E.2d at 658. Qualified immunity’s broad protections safeguard
from liability all but the plainly incompetent public official or one who knowingly
violates the law. Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The
constitutional or statutory right the plaintiff alleges was violated must have been
clearly established, settled law at the time of the act’s occurrence. Furthermore, that
clearly established, settled law must also have been reasonably known by the public
official. This presents serious hurdles for plaintiffs hoping to prevail in lawsuits
against public officials for their discretionary acts, as if the public official has a
colorable argument for the legality of their conduct, the legal right violated was
likely to not be so settled as to be “clearly established.”
Given this rule, we now must apply our immunities analysis to the
case at hand. The first step in this analysis is to identify whether the public official’s
acts constitute legislative or judicial acts, or executive or administrative policy-
making. Here, we look to the Petitioners’ Complaint to analyze the allegations and
the public officer’s duties.
13 The Complaint identifies the Respondents, listing their positions
within the government of West Virginia. Respondent Jividen is described as the
Commissioner for the DOCR. The Complaint describes Respondent Morrisey as the
Attorney General, with “authority over the Office of the Attorney General of West
Virginia.” Respondent Sandy is described as the Cabinet Secretary of the West
Virginia Department of Homeland Security (“DHS”). The Complaint also notes that
the DOCR is a subpart of the DHS. The Complaint alleges that Respondent Jividen
placed the “good time” award program under review, and signed arrest warrants for
the Petitioners that caused their rearrest and reincarceration. The Complaint alleges
that Respondent Morrisey is “personally responsible” for deciding whether the
Office of the Attorney General would defend the DOCR’s actions or “alternatively
whether his office will confess error,” and states that the Office of the Attorney
General defended the DOCR’s policy and actions at Respondent Morrisey’s behest.
The Complaint alleges that Respondent Sandy was involved in the decision to place
the “good time” program under review and in the drafting of SB 713, and that an
“agent” of his testified before the legislature justifying SB 713’s codification of the
DOCR’s policy change.
If the claims against the public official arise from judicial or
legislative acts, or executive or administrative policy-making, the public official is
entitled to absolute immunity. A.B., 234 W. Va. at 507, 766 S.E.2d at 766.
Analyzing the facts and allegations of the Complaint, it is evident that Respondents
14 Morrisey and Sandy are entitled to absolute immunity. Respondent Morrisey is the
Attorney General, a public official whose purpose is to serve as the State of West
Virginia’s chief attorney, and his alleged factual involvement is defending the State
in court, the very essence of judicial acts entitled to absolute immunity. Respondent
Sandy, the Cabinet Secretary for DHS, is a public official whose role could involve
both policy-making and executive decision-making for DHS and the administrative
agencies under its authority. However, the Complaint alleges that Respondent
Sandy was involved in the DOCR’s decision to place the “good time” program
under review, which is plainly administrative policy-making. The other alleged acts
of Respondent Sandy’s are that he was involved in SB 713’s drafting, and that his
“agent” testified before the legislature about SB 713, clear examples of legislative
acts. A public official has absolute immunity for administrative policy-making and
legislative acts, so Respondents Morrisey and Sandy are entitled to absolute
immunity. Respondent Jividen’s placement of the “good time” program under
review is administrative policy-making, and thus she is entitled to absolute
immunity for any claims arising out of that act. On the other hand, Respondent
Jividen’s signing of the arrest warrants that caused the Petitioners’ reincarceration
was not a judicial or legislative act, nor administrative or executive policy-making.
The issuance of the warrants and subsequent arrests and reincarcerations were the
enactment of the DOCR’s new policy, not its formation. Therefore, Respondent
Jividen is not entitled to absolute immunity for signing the warrants authorizing the
Petitioners’ arrests.
15 Having thus segregated the acts for which the Respondents are
entitled to absolute immunity, this Court must consider whether Respondent
Jividen’s issuance of the warrants causing the Petitioners’ arrest and reincarceration
was ministerial or discretionary. A public official is entitled to qualified immunity
for discretionary acts and receives no immunity for ministerial acts. Id. at 508, 766
S.E.2d at 767; Chase Sec., Inc., 188 W. Va. at 364, 424 S.E.2d at 599. A ministerial
act is one where the public official has no real decision-making, as the act is so
proscribed that nothing of substance is left to their discretion. See Harlow, 457 U.S.
at 816; Chase Sec., Inc., 188 W. Va. at 364, 424 S.E.2d at 599. The record shows
no evidence that there was any process that mandated Respondent Jividen’s issuance
of the arrest warrants, therefore as Commissioner of the DOCR, the issuance of the
arrest warrants was within her discretion. Indeed, Respondent Jividen’s letter
claiming that the DOCR had the authority to rearrest Petitioner Heckman shows that
her reasoning, experience, and values informed her decision to issue the warrants,
characteristic of a discretionary act.2 We thus conclude that Respondent Jividen’s
issuance of the warrants that led to the rearrest and reincarceration of the Petitioners
was a discretionary act entitled to qualified immunity.
2 Respondent Jividen’s letter was sent to a circuit court judge explaining Petitioner Heckman’s rearrest and reincarceration by stating that his original release date was “calculated using day-for-day good time credit” which the DOCR had since determined “is not appropriate for sex offenders serving time for a violation of their supervised release.” 16 The last step is to determine whether qualified immunity protects
Respondent Jividen from liability arising out of the issuance of the arrest warrants
for the Petitioners. To answer this ultimate question, we must determine whether
Respondent Jividen violated a clearly established constitutional or statutory right,
of which she should have reasonably been aware. It should be noted that we are
asking this question at the time of the decisionmaker’s act, not the present day. With
the hindsight guidance provided by State ex rel. Phalen v. Roberts, 245 W. Va. 311,
858 S.E.2d 936 (2021), it has now been clearly established that Respondent
Jividen’s act violated the Petitioners’ legal rights. However, we must ask whether it
had been clearly established at the time of the warrants’ issuance that Respondent
Jividen was violating the Petitioners’ rights.
The Petitioners argue that at the time of Respondent Jividen’s
issuance of the warrants, the case State v. Hargus, 232 W. Va. 735, 753 S.E.2d 893
(2013) had already clearly established that the issuance violated their legal rights.
In Hargus, the petitioners were sex offenders who had violated the terms of the
supervised release imposed on them pursuant to West Virginia Code § 62-12-26 and
had been subsequently reincarcerated after their supervised release’s revocation. Id.
at 739, 753 S.E.2d at 897. The Hargus petitioners claimed that their reincarceration
violated their due process rights and the double jeopardy clause under the United
States and West Virginia Constitutions. Id. at 741, 753 S.E.2d at 899. The Hargus
17 petitioners argued that § 62-12-26 violated due process and the double jeopardy
clause because a revocation of supervised release and subsequent reimprisonment
could be authorized by a circuit court finding a violation by a clear and convincing
standard, a lesser standard than what is usually required for criminal punishment, a
jury’s finding of guilt beyond a reasonable doubt. Id. They also argued that § 62-
12-26 violated the prohibition against double jeopardy, because “a person sentenced
to incarceration for a violation of supervised release is punished twice, once for the
original offense and then a second time when his supervised release is revoked and
he is sentenced to post-revocation incarceration.” Id. at 743, 753 S.E.2d at 901. The
Hargus Court resolved both issues by holding that post-revocation reincarceration
is part of the single sentence arising from the original conviction. Id. at 742–43, 753
S.E.2d at 900–01.
To understand whether Hargus had already “clearly established” the
legal rights at issue in Phalen, we must consider the issues addressed therein. The
petitioner in that case was Scott Phalen, one of the individuals released on parole
from post-revocation reincarceration. Phalen, 245 W. Va. at 314–15, 858 S.E.2d at
939–40. The DOCR argued that Mr. Phalen was ineligible for parole or good time,
despite § 62-12-13(b)’s statutory language that “any inmate” is eligible for parole if
they have served one fourth of their sentence, and West Virginia Code § 15A-4-
17(a)’s language that “all adult inmates” shall have good time apply to their
18 sentences.3 Phalen, 245 W. Va. at 316–17, 858 S.E.2d at 941–42. See W. Va. Code
§ 62-12-13(b) (2021); Id. at § 15A-4-17(a) (2018). The DOCR’s argument was that
Mr. Phalen’s post-revocation reincarceration was not a “sentence” at all, but a
“sanction” for violating the terms of his supervised release, and thus inapplicable to
the good time or parole statutes. Phalen, 245 W. Va. at 316–17, 858 S.E.2d at 941–
42. The court rejected the DOCR’s argument, stating they had already established
in Hargus that post-revocation reincarceration is a part of the original sentence,
therefore those serving such a term were eligible for good time and parole until the
effective date of SB 713. Id. at 318, 321, 858 S.E.2d at 943, 946.
The Petitioners’ argument that Hargus had already clearly established
the violation found in Phalen is predicated upon the fact that in both Hargus and
Phalen the argument concerned whether reincarceration after the revocation of
supervised release pursuant to West Virginia Code § 62-12-26 was a separate
punishment from the original sentence. In Hargus, the Petitioners’ constitutional
arguments were predicated upon the view that these were separate punishments, as
was the DOCR’s argument in Phalen. These arguments were essentially that a
person’s post-revocation reincarceration was a “sanction” distinct from their
original sentence, and thus they were ineligible for good time or parole. See Hargus,
3 It should be noted that in the 2018 version of West Virginia Code § 15A-4-17(a) there was an exception to the general application of good time for those committed pursuant to West Virginia Code § 25-4-1 (1999), but that statute is not implicated here. 19 232 W. Va. at 741, 753 S.E.2d at 899; Phalen, 245 W. Va. at 316–17, 858 S.E.2d at
941–42. Indeed, the Phalen Court overtly recognized how neatly the Hargus
petitioners’ and the DOCR’s arguments dovetailed. Phalen, 245 W. Va. at 316, 858
S.E.2d at 941. The Petitioners’ argument here has an intuitive appeal, essentially
positing that since Hargus all but foreclosed the logic and reasoning behind the
DOCR’s argument in Phalen, the legal right must have already been “clearly
established.” Indeed, a review of Hargus makes the outcome of Phalen quite
predictable. If one were to forecast the outcome of Phalen, the prudent
prognosticator would have predicted the decision going against the DOCR.
Despite Hargus’ influence upon Phalen’s outcome, qualified
immunity does not require the public official to have a strong argument; all that is
required to receive immunity is that the right was not “clearly established” or
reasonably known by the official. See Hutchison, 198 W. Va. at 148, 479 S.E.2d at
658 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); A.B., 234 W. Va. at 507,
766 S.E.2d at 766. Crucially, Hargus and Phalen were addressing different issues,
despite the same underlying logic controlling the outcome of both cases. Hargus
only adjudicated the constitutionality of post-revocation reincarceration, while
Phalen addressed whether a person was eligible for good time and parole for their
post-revocation reincarceration. Hargus’ logic was plainly influential in deciding
Phalen, but qualified immunity’s standard is “clearly established,” not probable, or
20 likely to be established. Although Phalen was plainly the next logical step after
Hargus, the SCAWV had not yet taken that step until the decision in Phalen.
Indeed, despite the Phalen majority not finding the DOCR’s argument
persuasive, the DOCR was not without its own textual and logical support. As the
Phalen dissent points out, West Virginia Code § 62-12-26 states that supervised
release is only to begin upon the “expiration” of one’s sentence or parole, suggesting
that the underlying sentence had ended, making supervised release distinct from the
sentence. Phalen, 245 W. Va. at 323, 858 S.E.2d at 948 (Armstead, J., dissenting).
See W. Va. Code § 62-12-26(a) (2021). The dissent also points out that § 62-12-26
grants the court the discretion to modify, terminate, or revoke one’s supervised
release, powers the court is typically given over a parole term rather than a sentence.
Phalen, 245 W. Va. at 324, 858 S.E.2d at 948 (Armstead, J., dissenting). In light of
the contextual differences between Hargus and Phalen and the colorable arguments
put forth in the Phalen dissent, we cannot say that the application of parole and good
time to those reincarcerated after the revocation of their supervised release under §
62-12-26 was clearly established before the Phalen decision. Therefore, Respondent
Jividen is entitled to qualified immunity protection from liability for claims arising
out of her signing the warrants that led to the rearrest and reincarceration of the
Petitioners.
21 Because we hold that the Respondents have absolute and qualified
immunity from all claims arising out of their acts in this case, we need not reach any
of the Petitioners’ other claims, including respondeat superior, SB 713’s statutory
immunity provisions and their constitutional validity, declaratory judgment,
Respondent Morrisey’s sovereign immunity and alleged involvement in the crafting
and execution of the new DOCR good time policy, and the Respondents’
personhood under 42 U.S.C. § 1983. It should be noted that nothing in this decision
should be taken to challenge or disturb Phalen. That case is the natural progeny of
Hargus’ reasoning, and since Phalen the applicability of good time and parole to a
person’s post-revocation reincarceration has been clearly established. All we are
deciding here is that before Phalen, the Respondents’ conduct did not fit into that
narrow bandwidth of conduct a public official can be held liable for under our
immunity doctrine.
IV. CONCLUSION
For the foregoing reasons, the circuit court’s September 14, 2022, dismissal
orders are affirmed.
Affirmed.