SER WV State Police v. Taylor, Judge
Annotate this CaseSeptember 1997 Term
___________
No. 24150
___________
STATE OF WEST VIRGINIA ex rel.
THE
WEST VIRGINIA STATE POLICE
, a governmental agency, and
SERGEANT T. A. BARRICK, Director of the West Virginia State Police Criminal
Records Section, Petitioners,
v.
HONORABLE C. REEVES TAYLOR,
Judge of the Circuit Court of Mineral County;
MARSHA K. MILLS, individually and as
Administratrix of the Estate of Terrance Lee Mills;
QUALITY SUPPLIER TRUCKING, INC.,
a West Virginia Corporation; and
ROADWAY EXPRESS, INC., a corporation,
Respondents.
________________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
________________________________________________________
Submitted: September 9, 1997
Filed: November 20, 1997
H.F. Salsbery, Esq.
Darrell V. McGraw, Jr., Esq.
Madonna C. Estep, Esq.
Attorney General
Salsbery &
Druckman
Dolores A. Martin, Esq.
Charleston, West Virginia
Assistant Attorney General
Attorneys for Petitioners
Charleston,
West Virginia
Attorneys for Respondents
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "'"A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W.Va.Code, 53-1-1." Syl. pt. 2, State
ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).' Syl. pt. 2, State ex
rel. Kees v. Sanders, 192 W.Va. 602, 453 S.E.2d 436 (1994)." Syllabus Point 1, State ex rel.
United Hosp. Center, Inc. v. Bedell, 199 W.Va. 316, 484 S.E.2d 199 (1997).
2. "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." Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
3. In the absence of exceptional circumstances, criminal history record
information for an individual who does not consent to the release of the information may not
be obtained by a subpoena duces tecum to a governmental or law enforcement agency issued
at the request of a private party in civil litigation.
Cf. W.Va. Code, 15-2-24 [1977]
.
4. In determining whether exceptional circumstances exist that would
permit a circuit court in the exercise of its discretion to enforce a subpoena duces tecum to
a law enforcement or governmental agency in a civil action for criminal history record
information regarding an individual who has not consented to the release of such
information, a circuit court must consider: (1) whether the criminal history record
information which the subpoena duces tecum seeks is essential to the party seeking the
information in preparing and presenting their case; (2) whether the party seeking the
information has exhausted all other reasonable avenues other than a subpoena duces tecum
to a governmental or law enforcement agency for obtaining the criminal history record
information which is sought; (3) whether there is a substantial possibility of injustice if the
party cannot obtain the criminal history record information which is sought by the subpoena
duces tecum; and (4) whether the party in possession of the criminal history
record
information and the person(s) about whom the information is sought have had a fair
opportunity under the circumstances
to present argument
against the release of the
information,
and whether their privacy and confidentiality interests can be appropriately
protected.
These four denominated areas of inquiry do not foreclose the circuit court from
taking into account such other relevant considerations as it may see fit in the exercise of its
discretion to determine whether there are exceptional circumstances that warrant enforcing
such a subpoena duces tecum.
5. If a circuit court concludes that exceptional circumstances exist
in civil
litigation
permitting the enforcement of a subpoena duces tecum issued to a governmental
or law enforcement agency for criminal history record information regarding an individual
who has not consented to the release of such information, the circuit court must examine in
camera any criminal history record information which is provided in response to such a
subpoena duces tecum before the information is given to the party who has had the subpoena
duces tecum issued so that the circuit court in its discretion may redact any sensitive or
confidential information which clearly will not be of significance in the case before the court.
Additionally, the circuit court shall have wide discretion to impose an appropriate protective
order to protect the privacy and confidentiality of the information provided in response to the
subpoena duces tecum, while permitting the appropriately limited use of the information in
connection with the pending litigation. Any person may file such pleadings as they deem
appropriate to bring to the circuit court's attention any matters and concerns arising in
connection with the enforcement of such a subpoena duces tecum or the information which
is provided in response to the subpoena duces tecum.
Starcher, Justice:
In this case, a plaintiff in a civil lawsuit issued a subpoena to the West Virginia
State Police for the criminal record of the man who killed her husband. The killer, who is in
prison for the crime, had refused to authorize the release of his criminal record. The Circuit
Court of Mineral County required that the records be made available for the civil litigation.
We conclude that such a subpoena may be enforced only if there are
exceptional circumstances. Because the record is not clear as to whether such circumstances
exist in this case, we require the circuit court not to enforce the subpoena until the court
applies the exceptional circumstances test set forth in this opinion.
I.
Facts and Background
The petitioners, the West Virginia State Police and Sergeant T. A. Barrick,
invoke the original jurisdiction of this Court by a writ of prohibition under the provisions of
Article VIII, Section 3 of the West Virginia Constitution, and W.Va. Code, 53-1-2 [1933].
We proceed by first reviewing the positions of the parties to the instant proceeding
.
A.
Petitioners' Contentions
The petitioners allege that:
1. Petitioner Sergeant Barrick is the supervisor in charge of the Criminal
Identification Bureau ("CIB"), a division of the petitioner
West Virginia State Police
. The
CIB is established pursuant to the provisions of W.Va. Code, 15-2-24(a) [1977].
2. The CIB operates a central state repository for the storage of fingerprints
and other records of persons arrested or detained by law enforcement officers.
This opinion
will refer generally to such records as "criminal history record information."
See footnote 1
1
The CIB
also has access to
criminal history record information
compiled by the National Crime
Information Center
("NCIC")
, a federal agency in the Department of Justice.
3. The respondent, Marsha K. Mills, is the plaintiff in a wrongful death suit
in the Circuit Court of Mineral County, West Virginia.
See footnote 2
2
On February 6, 1997, the Circuit
Court of Mineral County, pursuant to a request by respondent Mills, issued a subpoena duces
tecum directing the petitioners to produce criminal history record information for Elijah
Ruffin, Jr.
4. In response to the subpoena duces tecum, the petitioners filed a "Motion
to Quash Subpoena Duces Tecum."
5. On April 23, 1997, in a brief order that did not include factual findings
or a statement of reasons, the circuit court, following a telephonic hearing, denied the
petitioners' motion to quash and ordered that the criminal history record information of
Elijah Ruffin, Jr. be provided to the respondent Mills by the petitioners.
On June 18, 1997, this Court agreed to consider a writ of prohibition to review
the circuit court's ruling on the petitioners' motion to quash.
The petitioners contend that respondent Mills is not entitled to obtain criminal
history record information from the petitioners by means of a court order enforcing a
subpoena duces tecum
See footnote 3
3
because such a method for obtaining such information is not
authorized by the provisions of W.Va. Code, 15-2-24 [1977], which addresses the release of
criminal history record information in subsections (c), (d) and (e).
Subsection (c) of
W.Va. Code, 15-2-24 [1977]
authorizes the release of such
information to law enforcement and governmental agencies which request the information:
The criminal identification bureau may furnish fingerprints,
photographs, records or other information to authorized law-
enforcement and governmental agencies of the United States
and its territories, . . . upon proper request stating that the
fingerprints, photographs, records or other information
requested are necessary in the interest of and will be used solely
in the administration of official duties and the criminal laws.
(Emphasis added.)
Petitioners note that respondent Mills is neither a law enforcement or
governmental agency; nor does she have the intention to use the information sought about
Elijah Ruffin, Jr. for the administration of official duties and criminal laws.
Subsection (d) of W.Va. Code, 15-2-24 [1977] authorizes the release of
criminal history record information upon request to entities or individuals other than law
enforcement agencies or organizations:
The criminal identification bureau may furnish, with the
approval of the superintendent, fingerprints, photographs,
records or other information to any private or public agency,
person, firm, association, corporation or other organization, .
. . but all requests . . . for such fingerprints, photographs, records
or other information must be accompanied by a written
authorization signed and acknowledged by the person whose
fingerprints, photographs, records or other information is to be
released. (Emphasis added.)
Petitioners state that respondent Mills has not supplied the petitioners with Mr.
Ruffin's written authorization to release information about him.
Subsection (e) of W.Va. Code, 15-2-24 [1977] authorizes the release of
criminal history record information to federal and state identification bureaus for "the
purpose of aiding law enforcement:"
The criminal identification bureau may furnish fingerprints,
photographs, records and other information of persons arrested
or sought to be arrested in this State to the identification bureau
of the United States government and to other states for the
purpose of aiding law enforcement. (Emphasis added).
Petitioners note that respondent Mills is an individual plaintiff in a civil case,
and not a law enforcement identification bureau.
In summary, petitioners say that the release of Mr. Ruffin's criminal history
record information to respondent Mills pursuant to a court order enforcing a subpoena duces
tecum is barred by state law,
because Ms. Mills does not fall within one of the three
categories of persons or entities listed in W.Va. Code, 15-2-24 [1977] that may obtain such
information
.
The petitioners also contend that the federal regulations which govern the
dissemination of criminal history record information bar the release of the information to
respondent Mills pursuant to a court order enforcing a subpoena duces tecum.
Petitioners cite to 28 C.F.R. 20.33 [1990], which states:
[C]riminal history record information contained in any
Department of Justice criminal history record information
system will be made available:
(1) To criminal justice agencies for criminal justice purposes;
and
(2) To Federal agencies authorized to receive it pursuant to
Federal statute or Executive order.
(3) Pursuant to Public Law 92-544 (86 Stat. 1115) for use in
connection with licensing or local/state employment or for other
uses only if such dissemination is authorized by Federal or state
statutes and approved by the Attorney General of the United
States. (Emphasis added.)
Since the West Virginia statute, W.Va. Code, 15-2-24 [1977], which delineates
three categories of persons or entities that may obtain criminal record history information,
does not provide for the release of criminal record history information pursuant to a court
order enforcing a subpoena duces tecum, petitioners contend that 28 C.F.R. 20.33 [1990]
prohibits the use of such a method for obtaining the information that respondent Mills seeks.
Petitioners conclude that the circuit court's denial of petitioners' motion to
quash respondent Mills' subpoena duces tecum for the criminal history record information
of Elijah Ruffin, Jr. was clearly erroneous as a matter of law.
B.
Respondent's Contentions
In response to the petitioners' contentions, respondent Marsha K. Mills submits the following allegations and argument. We emphasize that we accept respondent Mills' factual allegations as substantially true only for purposes of our ruling in the instant case. Respondent states that:
1. The underlying action in the circuit court arises from the shooting death
of the respondent Marsha Mills' husband, Terrance Lee Mills. At the time of his death,
Terrance Mills was employed by Quality Supplier Trucking as an over-the-road truck driver.
2. At the time of the shooting, Elijah Ruffin, whose criminal history
record information is being sought by the respondent, was employed by Roadway Trucking
Company as an over-the-road truck driver. Ruffin was subsequently convicted of
manslaughter in Terrance Mills' death.See footnote 4
4
The shooting occurred after an argument between
the truck drivers which began on citizens' band radio. Ruffin also shot at Mills' fellow
employee, Richard A. Bryan, who was "running" with Mills in a separate truck; Bryan was
not injured.See footnote 5
5
3. During the sentencing phase of Ruffin's trial, respondent Mills became
aware of certain information concerning Ruffin's past criminal conduct. Subsequently
respondent Mills, individually and as executrix of her late husband's estate, filed a wrongful
death suit against Roadway Trucking Company,See footnote 6
6
alleging inter alia the negligent hiring of
Elijah Ruffin.See footnote 7
7
4. Respondent Mills believes that Ruffin's criminal history includes but
is not limited to: (a) another manslaughter conviction; (b) assault with intent to murder; and
(c) multiple weapons possession charges.See footnote 8
8
5. Respondent Mills' counsel was advised by Ruffin's prison case manager
that Ruffin's criminal history record information could be released by the prison, upon
receipt of Ruffin's written authorization or upon receipt of a court order. Respondent's
counsel attempted to contact Ruffin on several occasions by leaving messages with prison
authorities requesting that Ruffin call counsel collect. Ruffin did not call.See footnote 9
9
6. After attempts to obtain authorization from Ruffin were unsuccessful,
the respondent's counsel moved the circuit court for the entry of an order authorizing the
release of Ruffin's criminal history record information. The circuit court granted the
respondent's motion and ordered the release of the criminal history record information.
Respondent's counsel says that when counsel attempted to use the order to obtain the
information from the Maryland prison, the prison had been instructed by the Maryland
Attorney General's Office that it is not obligated to follow the orders of a West Virginia
circuit judge.
7. Although Maryland advised that it would release the information upon
receipt of a federal court order or a Maryland circuit court order, the respondent's counsel
states that "because there is no action currently pending in federal court or in Maryland state
court which involves this case," respondent's counsel determined that "the simplest course"
would be to have a subpoena duces tecum for the information issued and served upon the
petitioners.
The petitioners' unsuccessful attempt to quash this subpoena duces tecum led
to the instant case before this Court, upon a writ of prohibition.
The respondent disagrees with the petitioners' assertion that the circuit court
exceeded its legitimate authority by ordering the release of the criminal history record
information of Elijah Ruffin.
Respondent Mills argues that the three categories of authorized releases of
criminal history record information which are set out in W.Va. Code, 15-2-24 [1977],
subsections (c), (d), or (e) are not stated in the statute to be the exclusive permissible methods
for obtaining the information sought by the respondent.
Respondent points out that the statute addresses only the permissible furnishing
of information which is requested by an agency or individual, and is silent as to the
production of information when required to do so by a court order enforcing a subpoena
duces tecum.
Respondent additionally contends that the federal regulations
regarding the
dissemination of criminal history record information
do not bar the use of a court order
enforcing a subpoena duces tecum.
Respondent cites to 28 C.F.R. § 20.21(b)(2) [1977], which provides in
pertinent part that:
. . . dissemination of nonconviction [criminal history record
information] data [must be] . . . limited, whether directly or
through any intermediary only to:
. . . (2) Individuals and agencies for any purpose authorized by
statute, ordinance, executive order, or court rule, decision or
order, as construed by appropriate State or local officials or
agencies[.] (Emphasis added.)
See footnote 10
10
Respondent also argues that substantial injustice would result if she is not able
to demonstrate in her civil case alleging negligent hiring what the
criminal history record
information
report on Elijah Ruffin, Jr. is -- and thus what the defendant Roadway would
have learned had it sought and obtained such information.
Additionally, respondent says she will be unfairly prejudiced in the discovery
process if she is unable to review such information to identify what Ruffin's entire criminal
history actually is -- since he will not provide this information.
II.
Standard of Review
The standard of review applicable to a writ of prohibition like the instant case
was stated in Syllabus Point 1 of State ex rel. United Hosp. Center, Inc. v. Bedell, 199 W.Va.
316, 484 S.E.2d 199 (1997):
"'A writ of prohibition will not issue to prevent a simple abuse
of discretion by a trial court. It will only issue where the trial
court has no jurisdiction or having such jurisdiction exceeds its
legitimate powers. W.Va.Code, 53-1-1.' Syl. pt. 2, State ex rel.
Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425
(1977)." Syllabus Point 2, State ex rel. Kees v. Sanders, 192
W.Va. 602, 453 S.E.2d 436 (1994).
Additionally, Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12,
483 S.E.2d 12 (1996), states:
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.
Finally, when a writ of prohibition raises the invasion of confidential materials
that are exempted from discovery, the discretionary exercise of this Court's original
jurisdiction may be particularly appropriate. See Syllabus Point 3, State ex rel. USF&G v.
Canady, 194 W.Va. 431, 460 S.E.2d 677 (1995). If a circuit court's discovery ruling with
respect to allegedly confidential materials will result in the compelled disclosure of those
materials, a hard and more stringent examination will be given to determine if the circuit
court abused its discretion. Id., Syllabus Point 5.
III.
Discussion
A.
Is There An Absolute Bar?
The first issue which we address is whether there is an absolute bar to a non- governmental party obtaining criminal history record information about an individual who will not consent to the release of the information by means of a court order enforcing a subpoena duces tecum issued in a civil action to a governmental or law enforcement agency.
We conclude that there is no absolute bar -- for four reasons. First, our statute does not compel finding such a bar. Second, the pertinent federal regulations do not compel finding such a bar. Third, constitutional considerations and equity strongly argue for finding no bar. Fourth, the important interests of privacy, confidentiality and economy may be served without finding an absolute bar.
1.
The West Virginia Statute
West Virginia's statute addressing the release of criminal history record
information, W.Va. Code, 15-2-24 [1977], directly addresses only the release of criminal
history record information when such information is "requested."
The statute is silent on
what is permissible upon the issuance of a court order requiring the production of such
information
. And our statute does not state, either expressly or indirectly, that the
authorizations for the release of information which the statute delineates are exclusive.
We have under analogous circumstances found that the lack of an express
statutory authorization for the power of subpoena did not mean that finding such a power
is barred. In Huntington Human Relations Comm'n ex rel. James v. Realco, Inc., 175
W.Va. 24,
26, 330 S.E.2d 682, 684 (1985),
this Court rejected the contention that a
statute's failure to explicitly state that
a local human relations commission
had the power to
obtain documents by means of a subpoena duces tecum issued by a circuit court "implicitly
denied" that power to the commission -- so that such power could not be found in other
principles and provisions of law. 175 W.Va. at 25, 330 S.E.2d at 683.
In Huntington, we declined to apply the principle of expressio unius est
exclusio alterius ("the express mention of one thing implies the exclusion of another") --
because other authority permitted finding that the Commission had the power of subpoena,
even though the power was not expressly set forth in the statute authorizing the creation of
local commissions.
In the instant case,
we similarly conclude that W.Va. Code, 15-2-24 [1977]'s
silence regarding whether criminal history record information may be obtained by means of
a court order enforcing a subpoena duces tecum does not mandate an absolute bar to
obtaining such information by such a method -- if there is
other substantial
support in the law
for finding that such a procedure may be permitted.
As discussed hereinafter, we do find -- in the language of the pertinent
federal regulations, in the policies and procedures authorized by the West Virginia Rules
of Civil Procedure, and
in consideration of constitutional guarantees and equity --
other
substantial support for permitting the use of a court order enforcing a subpoena duces
tecum in exceptional circumstances to obtain criminal history record information.
Therefore we do not apply the principle of expressio unius est exclusio
alterius to W.Va. Code, 15-2-24 [1977] to find an absolute bar against the use of a court
order enforcing a subpoena duces tecum to obtain criminal history record information
.
2.
Federal Regulations
Two separate federal regulations govern the dissemination of criminal history
record information. Although the language of the regulations in question is not a model of
clarity, it appears that the regulatory limitation on the petitioners' dissemination of national
NCIC information is stricter than the limitation which governs the dissemination of state
CIB information.
28 C.F.R. Sec. 20.21 [1977], which is principally relied upon by the
respondent, pertains to the dissemination of state criminal history record information which
is collected and retained in a centralized state criminal information bureau (CIB).
28 C.F.R. 20.33 [1990], which is principally relied upon by the petitioners,
pertains to the dissemination of national criminal history record information which may be
obtained by states or localities from the NCIC.
One way in which the
regulations differ is in the type of criminal history
record to which each regulation applies. The regulation pertaining to the dissemination of
state CIB criminal history record information, 28 C.F.R. Sec. 20.21 [1977], only limits
the dissemination of non-conviction data -- such as records of arrests where no conviction
is subsequently obtained.See footnote 11
11
In contrast, 28 C.F.R. 20.33 [1990], which applies to national
NCIC information, does not make a distinction between conviction and nonconviction
information.
See footnote 12
12
In this opinion, we adopt the premise that the respondent seeks and the
petitioners object to producing both conviction and nonconviction criminal history record
information regarding Mr. Ruffin. We also proceed upon the premise that the respondent
seeks and the petitioners object to producing information which is directly contained in
petitioners' state CIB database, as well as the national information which petitioners may
request as a participant in the NCIC.See footnote 13
13
We initially consider the federal regulation governing the dissemination of
state CIB criminal history record information, 20 C.F.R. 20.21(b)(2) [1977],
which inter
alia authorizes the release of nonconviction data from a state database upon the issuance
of a "court order."
Since by its own terms this regulation contemplates the release of criminal
history record information pursuant to a court order, the regulation cannot support a
finding of an absolute bar to the release of criminal history record information pursuant
to a court order enforcing a subpoena duces tecum.
We next examine the federal regulation
which addresses the dissemination
of national NCIC
information, 28 C.F.R. 20.33 [1990].
This regulation states in pertinent
part that:
(a) Criminal history record information . . . will be made
available . . . (3) for other [non-law enforcement] uses only if
such dissemination is authorized by Federal or state statutes
and approved by the Attorney General of the United States.
(Emphasis added.)
The issue presented by this regulatory language is: does a court order
enforcing a subpoena duces tecum fall within 28 C.F.R. 20.33(a)(3) [1990]'s "state
statute" requirement
?See footnote 14
14
In addressing this question, we first observe that the use of subpoenae duces
tecum in the discovery process
to obtain access to documents in the possession of persons
who are not parties to the litigation -- and the ability of a circuit court to determine the
appropriateness of such subpoenae -- is explicitly provided for in the
West Virginia Rules
of Civil Procedure
, Rules 30(b)(1) [1988] and 45(b) [1988].
Second, we recognize that the
West Virginia Rules of Civil Procedure
have
the force of a statute. Syllabus Point 3, State v. Mason, 157 W.Va. 923, 205 S.E.2d 819
(1974). That the Rules have the force and effect of a statute is unquestioned. Criss v.
Salvation Army Residences, 173 W.Va. 634, 639, 319 S.E.2d 403, 408 (1984).
Third, looking at the purpose of the federal regulation in question, we believe
that 28 C.F.R. 20.33 [1990]
requires state "statutory" authority for criminal history record
information
dissemination for non-law enforcement purposes to guarantee that there are
established governmental standards, controls, protections and oversight
for
such
dissemination.
Measured against this standard, civil process pursuant to the Rules is an
approved governmental mechanism, with standards, procedures and safeguards that can
protect the important interests encountered in dealing with criminal history record
information -- and these procedures and safeguards have the force and effect of a statute.
State v. Mason, supra.
Applying the foregoing reasoning, we conclude that a court order issued
pursuant to the West Virginia Rules of Civil Procedure enforcing a subpoena duces tecum
substantially meets the "statute" requirement of 28 C.F.R. 20.33 [1990], thereby
permitting this Court to find that 20 C.F.R. 20.33 [1990] does not impose an absolute bar
to the release of criminal history record information pursuant to such an order.See footnote 15
15
3.
Constitutional Concerns and Equity
A third and important reason for not finding an absolute bar to the release of
criminal history record information pursuant to a court order enforcing a subpoena duces
tecum is evident when we consider and apply to the instant case the principles of
constitutionally guaranteed access to the courts and of equity.
As the instant case illustrates, in a particular civil case the contents of a
person's criminal history record information may be necessary to the fair resolution of
significant issues in the litigation. In such a case, substantial injustice and unfairness might
result from making potentially crucial information unavailable to litigants, by imposing an
absolute bar on obtaining the information by the use of civil process pursuant to procedures
authorized by the West Virginia Rules of Civil Procedure.See footnote 16
16
W.Va. Const. Art. III, Sec. 17, provides in pertinent part that "[t]he courts
of this State shall be open, and every person, for an injury done to him, in his person,
property or reputation, shall have remedy by due course of law . . ." and establishes our
state constitutional right to access to the courts for the redress of grievances. McClung v.
Marion County Comm'n, 178 W.Va. 444, 449, note 6, 360 S.E.2d 221, 226, note 6
(1987); Deller v. Naymick, 176 W.Va. 108, 115, note 14, 342 S.E.2d 73, 80, note 14
(1985). A severe limitation on a procedural remedy permitting court adjudication of cases
implicates the certain remedy provision of Article III, Section 17 of the West Virginia
Constitution. Syllabus Point 6, Gibson v. W. Va. Dept. of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991).
Thus an absolute bar to obtaining criminal history record information through
a subpoena duces tecum might in a particular case impermissibly burden an important
constitutional right, by unreasonably denying a litigant the ability to use the process of the
courts to obtain relevant evidence to prosecute or defend against a civil claim.
Considering both the constitutional reasonableness and the equity of imposing
an absolute bar upon the respondent's obtaining the records in question, we note that the
respondent Mills is clothed with the particular concern our law gives to the victims of
crimes under the Victim Protection Act of 1984, W.Va. Code 61-11A-1 [1984] et seq.--
because Ms. Mills is the "fiduciary of a deceased victim's estate . . . [and] a member of
a deceased victim's immediate family." W.Va. Code, 61-11A-2 [1984].
Thus it could run substantially counter to public policy if the application of
an absolute bar to obtaining criminal history record information by subpoena duces tecum
were to
significantly impair Ms. Mills' ability to prosecute civil claims arising out of her
late husband's murder, by effectively hiding the criminal record of his killer.
Notably, this Court has stated that even statutory prohibitions against the
disclosure of information must yield to the constitutional rights of individuals.
In the related area of discovery in a criminal proceeding, we have held that
statutory protections restricting the disclosure of information which impose a substantial
burden upon a criminal defendant's right to a fair trial must yield to protection of the
defendant's constitutional rights. State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995).
In such cases, however, we have stated that it is appropriate to place the burden upon the
party seeking the information to demonstrate a particularized need to disclose the
information. Id. And we follow such an approach here.
In summary, constitutional and equitable principles provide strong support
for the conclusion that there is not an absolute bar to obtaining criminal history record
information by means of a court order enforcing a subpoena duces tecum.
4.
Privacy, Confidentiality and Burdensomeness
Fourth, considerations of privacy, confidentiality and burdensomeness do not
argue for an absolute bar on the release of such information pursuant to a court order
enforcing a subpoena duces tecum -- if such release is permitted only under exceptional
circumstances, when there is a specific showing of need for the information's release, and
when there is adequate protection for these important interests.
As to privacy and confidentiality, courts are well-versed in crafting appropriate
limitations on the use of sensitive information, and we may presume that such expertise will
be applied appropriately to criminal history record information in those rare cases where a
court authorizes its release pursuant to a subpoena duces tecum. See discussion at note 17,
infra.
As to burdensomeness, our statutes explicitly authorize the release of criminal
record history information to such private parties as employers, with the consent of the
person about whom the information is sought -- and without a person's consent, upon request
by government agencies for official reasons. W.Va. Code, 15-2-24(d) [1977].
These rather broad categories of individuals and agencies who are able to
routinely obtain criminal history record information strongly suggest that in the rare case
where a court order requires such information to be released to a non-governmental party,
no undue burden will be imposed upon the petitioners.
For the foregoing reasons, we decline to find that there is an absolute bar to a
law enforcement agency releasing criminal history record information about an individual
who does not consent to the release of the information to a private litigant pursuant to a court
order enforcing a subpoena duces tecum in a civil action.
B.
Exceptional Circumstances
The next issue which we must address is: if there is no absolute bar, what
protections and constraints are necessary to protect the important confidentiality and privacy
interests that are at stake in this area? Here we must be concerned with both the
confidentiality and privacy interests of the individuals whose records may be sought,See footnote 17
17
and
the important confidentiality and privacy interests of law enforcement agencies and their
records.
We are especially concerned that the criminal history record information held
by and available to the West Virginia State Police does not become open or subject to general
"fishing expedition" subpoenae duces tecum issued in connection with ordinary civil
litigation.
See footnote 18
18
To protect against such a result, we conclude that it is necessary to impose
strict standards regarding the release of such information when release is sought by means
of a court order enforcing a subpoena duces tecum.See footnote 19
19
Therefore we hold that
in the absence of exceptional circumstances, criminal
history record information for an individual who does not consent to the release of the
information may not be obtained by a subpoena duces tecum to a governmental or law
enforcement agency issued at the request of a private party
in civil litigation.
In determining whether exceptional circumstances exist that would permit a
circuit court in the exercise of its discretion to enforce a subpoena duces tecum to a law
enforcement or governmental agency in a civil action for criminal history record
information regarding an individual who has not consented to the release of such
information, a circuit court must consider: (1) whether the criminal history record
information which the subpoena duces tecum seeks is essential to the party seeking the
information in preparing and presenting their case; (2) whether the party seeking the
information has exhausted all other reasonable avenues other than a subpoena duces tecum
to a governmental or law enforcement agency for obtaining the criminal history record
information which is sought; (3) whether there is a substantial possibility of injustice if the
party cannot obtain the criminal history record information which is sought by the
subpoena duces tecum; and (4) whether the party in possession of the criminal history
record information and the person(s) about whom the information is sought have had a fair
opportunity under the circumstances to present argument against the release of the
information, and whether their privacy and confidentiality interests can be appropriately
protected.
These four
denominated areas of inquiry do not foreclose the circuit court
from taking into account such other relevant considerations as it may see fit in the exercise
of its discretion, to determine whether there are exceptional circumstances that warrant
enforcing such a subpoena duces tecum.
If a circuit court concludes that exceptional circumstances exist permitting
the enforcement of a subpoena duces tecum issued to a governmental or law enforcement
agency
for criminal history record information regarding an individual who has not
consented to the release of such information, the circuit court must examine in camera any
criminal history record information which is provided in response to such a subpoena
duces tecum, before the information is given to the party who has had the subpoena duces
tecum issued, so that the circuit court in its discretion may redact any sensitive or
confidential information which clearly will not be of significance in the case before the
court.
Additionally, the circuit court shall have wide discretion to impose an
appropriate protective order to protect the privacy and confidentiality of the information
provided in response to the subpoena duces tecum, while permitting the appropriately
limited use of the information in connection with the pending litigation. Any person may
file such pleadings as they deem appropriate to bring to the circuit court's attention any
matters and concerns arising in connection with the enforcement of such a subpoena duces
tecum or the information which is provided in response to the subpoena duces tecum.
C.
The Instant Case
Having established the foregoing standards, we turn to applying them to the
facts of the instant case. With arguably privileged or otherwise presumptively non-disclosable materials, we must give a "hard and more stringent examination . . . to determine
if the circuit court abused its discretion" in allowing access to the materials. Syllabus Point
5, in part, State ex rel. USF & G v. Canady, supra.
Here our inquiry comes to an abrupt halt -- because we do not have enough
information to make such an examination. In this original jurisdiction proceeding, we do not
have the record from the underlying case. The contentions and apparent facts that we recite
in this opinion are entirely taken from the rather meager pleadings submitted by the parties
to this proceeding, and do not include any submissions by the defendants in the underlying
case.
The circuit court, which had no guidance as to what standards to apply to the
petitioner's motion to quash the
subpoena duces tecum
, did not make any factual findings
or give a statement of reasons in its brief order denying the petitioners' motion. Nor do we
have before us
even
a transcript of the hearing on the petitioners' motion to quash. While
it appears that the circuit court, in deciding to enforce the respondent's subpoena duces
tecum, may have employed an "exceptional circumstances" analysis similar to the approach
we have set forth in this opinion, we cannot reach such a conclusion based on the scant
information presented to us by the parties to this proceeding.
For example, on the issue of "exhausting other reasonable alternatives," it
initially appears that the respondent has gone to great lengths to obtain the sought-after
information -- but to no avail. However, the respondent has also advised us in her pleadings
that Mr. Ruffin's records would be released to the respondent by Maryland prison authorities
upon their receipt of an appropriate Maryland court order.
We do not understand why the respondent did not seek to open an original
jurisdiction proceeding in Maryland, based upon an appropriate circuit court order from
West Virginia, to obtain Mr. Ruffin's records from the Maryland prison.
Of course, we
cannot tell how reasonable, burdensome, expensive or possibly even futile such an attempt
would be. We must leave addressing such matters in the first instance to the circuit court.See footnote 20
20
In summary, it appears that the circuit court may have properly exercised its
discretion and in a de facto fashion permissibly determined that there were exceptional
circumstances that justified enforcing the subpoena duces tecum. But we cannot reach such
a conclusion from the limited record before us.
IV.
Conclusion
Because -- on the record before us -- we cannot say that the circuit court
properly exercised its discretion and found exceptional circumstances that would justify
enforcing the subpoena duces tecum in question, we are constrained to grant the writ as
moulded. We prohibit the enforcement of the subpoena duces tecum. The respondent is free
to present the issue of the enforcement of the subpoena duces tecum to the circuit court again
for the court's reconsideration, applying the principles enunciated in this opinion.
Writ Granted as Moulded.
Footnote: 1 1 "Criminal history record information" is the term used by the federal regulations that govern the national system of local, state and federal records of arrests, charges, dispositions, etc. 28 C.F.R. 20.3 [1976]. Compliance with federal regulations governing the dissemination of criminal history record information is a requirement of participating in the NCIC system and receiving federal financial assistance. 28 C.F.R. 20.1 [1976] et seq.
Footnote: 2 2 The defendants in the underlying lawsuit, Quality Supplier Trucking, Inc. and Roadway Express, Inc., have not participated in the instant prohibition proceeding before this Court.
Footnote: 3
3
By a "court order enforcing a subpoena duces tecum," we mean a ruling by a
circuit court which upholds the merits of the subpoena duces tecum's issuance. Such a
ruling may (as in the instant case) deny a motion to quash a subpoena. Or the circuit court
may take some other action to enforce a subpoena duces tecum. This Court has stated that:
A subpoena is issued automatically by a clerk of court upon
the ex parte application of one party litigant, and although a
subpoena is enforceable through the court's power of contempt
until it has been quashed by regular, in-court proceedings, a
bare subpoena is not the type of binding court order
contemplated by W.Va.Code, 27-3-1(b)(3) [1977] [the statute
governing the release of mental health records].
Syllabus Point 3, Allen v. Smith, 179 W.Va. 360, 368 S.E.2d 924 (1988).
In the instant case, we are similarly considering not a "bare subpoena," but a
binding court order determining after a hearing requiring compliance with a subpoena
duces tecum.
Footnote: 4 4 Ruffin was also convicted of use of a handgun in the commission of a crime of violence, assault, reckless endangerment and illegally transporting a handgun in a motor vehicle. He was sentenced to 25 years in prison. Allegedly the length of Ruffin's sentence was predicated upon his extensive criminal history, including an earlier conviction for shooting and killing another person.
Footnote: 5 5 This was the basis for Ruffin's assault and reckless endangerment convictions.
Footnote: 6 6 Mr. Mills' employer, Quality Supplier, was also named in the suit in a claim of tortious interference with Mrs. Mills' right to Workers' Compensation wrongful death benefits.
Footnote: 7
7
This Court has recognized a cause of action based upon negligent hiring. See King
v. Lens Creek Ltd. Partnership, 199 W. Va. 136, 483 S.E.2d 265 (1996); Thomson v.
McGinnis, 195 W.Va. 465, 465 S.E.2d 922 (1995); Sisson v. Seneca Mental
Health/Mental Retardation Council, Inc., 185 W.Va. 33, 404 S.E.2d 425 (1991). A
leading negligent hiring case is DiCosala v. Kay, 91 N.J. 159, 450 A.2d 508 (1982).
One commentator has described the test applied by courts in negligent hiring cases
as:
When the employee was hired, did the employer conduct a
reasonable investigation into the employee's background vis a
vis the job for which the employee was hired and the possible
risk of harm or injury to co-workers or third parties that could
result from the conduct of an unfit employee? Should the
employer have reasonably foreseen the risk caused by hiring
an unfit person?
Shattuck, Cathie A., "The Tort of Negligent Hiring and the Use of Selection Devices: the
Employee's Right of Privacy and the Employer's Need to Know," 11 Indus.Rel.L.J. 2-3,
and cases collected therein at notes 2-5. (1989).
The obtaining of criminal history record information has been an issue in a number
of negligent hiring and retention cases. See, e.g., Cramer v. Housing Opportunities
Comm'n., 304 Md. 705, 501 A.2d. 35 (1985); Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983); Parker v. Fox Vacuum, Inc., 732 S.W.2d 722 (Tex.App.-
Beaumont 1987); Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. App. 1980).
Footnote: 8 8 Respondent Mills says that during discovery she has learned that Ruffin disclosed one weapons possession charge on his application for employment with Roadway. Respondent alleges that notwithstanding this information, Roadway did not do any investigation into Ruffin's criminal background. Respondent has named an expert to testify that Roadway had a duty to investigate Ruffin's background pursuant to federal regulations, industry standards, and Roadway's own Safety Manual.
Footnote: 9 9 The respondent also scheduled Ruffin's deposition on two different occasions. In December, 1996, Ruffin, through counsel for the defendant Roadway, requested that the deposition be postponed until Ruffin could obtain counsel. The respondent agreed to postpone the deposition. The respondent, by counsel, attempted to contact Ruffin on multiple occasions to determine whether he had obtained counsel, but to no avail. Finally, the circuit judge ordered that the deposition of Ruffin be taken at his place of confinement. Respondent made arrangements with the prison and noticed the deposition for June 16, 1997. Counsel for the respondent as well as counsel for the defendant Roadway and a court reporter traveled to Maryland for the deposition, only to have Ruffin refuse to be deposed, notwithstanding the West Virginia circuit court's order.
Footnote: 10
10
The language cited by the respondent is reinforced by 28 C.F.R. Sec. 20.21(c)(3)
[1977], which states that:
States and local governments will determine the purposes for
which dissemination of criminal history record information is
authorized by State law, executive order, local ordinance,
court rule, decision or order. (Emphasis added.)
Footnote: 11
11
The comments to Sec. 20.21(b) [1977] state:
The regulations distinguish between conviction and
nonconviction information insofar as dissemination is
concerned. Conviction information is currently made available without limitation in many jurisdictions. Under these regulations, conviction data and pending charges could continue to be disseminated routinely. No statute, ordinance, executive order, or court rule is necessary in order to authorize dissemination of conviction data.
Footnote: 12 12 Although our ruling in the instant case does not turn on the distinction between conviction and nonconviction information, the jurisprudence of employment law has in many instances attached substantial importance to this distinction, particularly as it relates to the issue of what information or criteria an employer may use in making employment decisions. See Shattuck, note 5 supra.
Footnote: 13 13 We proceed upon these premises (1) because the pleadings are not completely clear on what the parties' positions in this area are, although the respondent's arguments focus on her need for conviction information; (2) because it appears that neither the respondent's subpoena duces tecum nor the circuit court's order made either a state/national or a conviction/nonconviction distinction; (3) because our state statute which deals with criminal history record information does not make such distinctions; and (4) because it appears that both conviction and nonconviction data in Mr. Ruffin's state and national criminal history record information may be relevant to the issues between the parties in the
underlying litigation.
Of course, nothing in this opinion will prohibit the circuit court or the respondent
from appropriately narrowing the scope of any information sought or disclosed in the
underlying proceeding, consistent with the principles enunciated herein.
Footnote: 14 14 The comments to 28 C.F.R. 20.21(b) [1977], the state CIB information dissemination regulation, state that a general public records/freedom of information law may be sufficient statutory authority for the dissemination of state CIB criminal history record information (nonconviction data). This comment indicates that "statutory" authorization for the dissemination of criminal history record information need not be specific in all instances.
Footnote: 15 15 As to the additional language in the federal regulation, "and approved by the Attorney General of the United States," 28 C.F.R. 20.33(a)(3) [1990] we have no way of knowing whether the Attorney General will approve of a request by the Petitioners to the NCIC requesting national criminal history record information about Mr. Ruffin. That issue does not relate to or control our determination in the instant case.
Footnote: 16 16 We have traditionally given the Rules a liberal construction favoring broad discovery, because broad discovery policies are "essential to the fair disposition of both civil and criminal lawsuits." State ex rel. U.S. Fidelity and Guar. Co. v. Canady, 194 W.Va. 431, 444, 460 S.E.2d 677, 690 (1995).
Footnote: 17 17 In United States Department of Justice v. Reporters Committee for Freedom of the
Press, 489 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989), the Supreme Court held that an individual's right to privacy in an FBI criminal history record information outweighs society's interest in the release of the information to full public disclosure pursuant to a request under the Freedom of Information Act. The Court gave great weight to the individual privacy interests at stake as it conducted a balancing test pursuant to the FOIA.
Footnote: 18 18 We emphasize that a central factual issue in the underlying case appears to be: what are the contents of the criminal history record information that the trucking company would have seen, if the company had done a criminal history record information request or similar background investigation on Mr. Ruffin? Therefore, this is a different case than a civil litigant simply seeking criminal history record information on a potential witness.
Footnote: 19
19
In formulating an exceptional circumstances test for subpoenae duces tecum
seeking criminal history record information, we draw upon the general principles which
this Court has applied in considering the enforcement of subpoenae duces tecum generally.
In this context, we have stated that:
The courts will, on proper motion, refuse to enforce judicial
subpoena duces tecum calling for the production of documents
in absence of a showing that the documents sought are relevant
and material to the matter in controversy and that proof is not
otherwise practically available.
State ex rel. Joint Committee on Government and Finance of West Virginia Legislature v.
Bonar, 159 W.Va. 416, 422, 230 S.E.2d 629, 632 (1976).
In Ebbert v. Bouchelle, 123 W.Va. 265, 267-68, 14 S.E.2d 614, 615 (1941), this
Court discussed in the context of a civil case the showing that must be made to utilize a
subpoena duces tecum:
There must be:
(a) A description of the writing, the production of which is
sought, sufficient to identify it.
(b) A showing of the relevance and materiality of its contents
to the matters in controversy in the pending case.
(c) The fact that the proof is not otherwise practically
available.
We further stated in State v. Harman, 165 W.Va. 494, 505, note 5, 270 S.E.2d 146, 153, note 5 (1980):
This quoted statement from Bouchelle is similar to the rule
given in 1 Wright, Federal Practice and Procedure (Criminal)
Sec. 274, regarding a subpoena duces tecum in a criminal
case:
"(1) That the documents are evidentiary and relevant; (2) That
they are not otherwise procurable by the defendant reasonably
in advance of trial by exercise of due diligence; (3) That the
defendant cannot properly prepare for trial without such
production and inspection in advance of trial and the failure to
obtain such inspection may tend unreasonably to delay the
trial; (4) That the application is made in good faith and is not
intended as a general fishing expedition."
Footnote: 20 20 We recognize that Ruffin's non-party status in the underlying case, coupled with his being in prison in another state, enormously impairs and complicates the ability of a West Virginia circuit court to compel Ruffin to answer questions or even to sign a release for his criminal history record information.
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