Julie Ann Hamstead v. Matthew Harvey, individually and as Prosecuting Attorney for Jefferson County, West Virgina, and the Jefferson County Commission, a corporate body ( 2022 )

FILED
March 23, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Julie Ann Hamstead,
Plaintiff Below, Petitioner
vs.) No. 21-0410 (Jefferson County 19-C-186)
Matthew Harvey, individually and as
Prosecuting Attorney for Jefferson County,
West Virginia, and the Jefferson County
Commission, a corporate body,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioner Julie Hamstead, the plaintiff below, by counsel Braun A. Hamstead, appeals the
April 26, 2021, order of the Circuit Court of Jefferson County that granted summary judgment to
respondents, the defendants below, Matthew Harvey individually and as the Prosecuting Attorney
for Jefferson County, West Virginia, and the Jefferson County Commission, a corporate body. The
order dismissed petitioner’s action for violation of the right of privacy. Respondents, by counsel
James W. Marshall, III and Adam K. Strider, respond in support of the circuit court’s order.
Petitioner filed a reply.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.
On April 25, 2016, petitioner followed a truck into a private parking lot. Petitioner claims
that she did so because she believed the construction workers in the truck were going to pour a
concrete sidewalk that would block access to a second parking lot located between her husband’s,
attorney Braun Hamstead’s, law office and another building that petitioner and her husband owned.
Petitioner claims that the driver of the truck accidentally drove into her vehicle, damaging her
driver’s door. Other witnesses said that petitioner hit the truck. Petitioner avers that there was little
to no damage to the truck and that she and the truck’s driver were about to exchange information,
1
when three police officers arrived at the scene. One of the officers was State Trooper Derek R.
Walker. 1
Petitioner avers that upon Trooper Walker’s arrival, a construction worker falsely shouted
that she had caused the accident. Petitioner claims that Trooper Walker then “promptly and
brutally” arrested her by (1) dragging her across the gravel parking lot leaving bruises on her
shoulder, (2) slamming her face first into the truck breaking her glasses and then slamming her
onto the graveled lot, and (3) handcuffing her hands behind her back. At petitioner’s request,
Trooper Walker transported petitioner to a hospital for an evaluation. There, hospital workers
found petitioner had bruises, but no other injuries. Petitioner was then taken to the police
department and booked. Thereafter, the Jefferson County prosecuting attorney 2 filed three
misdemeanor charges against petitioner in magistrate court: destruction of property, disorderly
conduct, and obstructing an officer.
On December 1, 2016, petitioner’s criminal defense attorney (then Christopher J. Barnhart)
issued a subpoena to the State Police for documents regarding Trooper Walker’s past use of force.
On February 27, 2017, the State Police responded, but gave the documents to the prosecuting
attorney’s office instead of giving them to petitioner. Among those documents was a “Report of
Response to Resistance or Aggression” (the “Report”) which is at issue in this appeal. The first
page of the Report includes petitioner’s name, date of birth, and social security number. The Report
does not contain medical records, but it does contain Trooper Walker’s recitation of claims about
petitioner’s medical condition after the arrest. An assistant prosecuting attorney filed a motion to
quash petitioner’s subpoena. A magistrate ordered that the documents, including the Report, be
turned over for review. For reasons unknown, the documents, including the Report were later
placed in the magistrate court file in petitioner’s criminal case, which is open to the public.
Petitioner’s social security number was not redacted from the Report nor were the statements
regarding her injuries at the time of her arrest.
During the course of petitioner’s magistrate court criminal case, her husband, lawyer Braun
A. Hamstead, became her criminal defense attorney. On August 30, 2017, Mr. Hamstead received
a copy of the magistrate court file which included the unredacted copy of the Report. However,
neither petitioner nor Mr. Hamstead took steps to seal the documents or redact petitioner’s
birthdate or social security number from the Report.
Following a bench trial in November of 2017, a magistrate found petitioner guilty of
disorderly conduct and obstruction but acquitted her of the charge of destruction of property based
on the lack of evidence regarding damage to the truck. Petitioner appealed her convictions to the
circuit court. Petitioner notes that Mr. Harvey, then the Jefferson County prosecutor, subpoenaed
1
Petitioner notes that Trooper Walker was later fired for assaulting a juvenile after a high-
speed car chase. See W. Va. State Police v. Walker, No. 20-0558, 2021 WL 5410430 (W. Va. Nov.
19, 2021) (upholding Trooper Walker’s dismissal for use of excessive force and conduct
unbecoming a state trooper).
2
Ralph Lorenzetti was the prosecuting attorney for Jefferson County on April 25, 2016,
the date of petitioner’s arrest. However, in November of 2016, respondent Matthew Harvey was
elected as Jefferson County’s prosecuting attorney.
2
her husband to appear as a witness in her circuit court case even though Mr. Hamstead was serving
as her counsel.
While petitioner’s criminal appeal was pending, she filed a civil rights lawsuit in the circuit
court against certain police officers and various individuals who testified at her magistrate court
trial. Thereafter, the civil rights lawsuit was removed to federal court. On or about December 3,
2018, Mr. Hamstead gave interviews to the media about the lawsuit. On December 4, 2018, a
reporter for the Charleston Gazette-Mail, Jake Zuckerman, e-mailed Mr. Harvey asking about
Trooper Walker and the excessive use of force claims lodged against him in an unrelated case
involving a juvenile. The reporter also posed the following question to Mr. Harvey regarding
petitioner’s pending criminal prosecution:
I know you’re limited about public statements here, but I was wondering if you
might have time for a phone call to discuss anything you might be able to discuss
without breaking some judicial canon, or at least point me on background toward
some filings worth reading.
I spoke with Braun Hamstead, [petitioner’s] counsel, who told me he has been
subpoenaed in the case, so I wanted to ask you about that as well, given the unusual
nature of issuing a subpoena to one’s spouse and/or counsel.
That same day, Mr. Harvey replied by e-mail:
Here [are] the documents from the public records in the Hamstead matter. These
records were subpoenaed by the defense and are entered in the magistrate court
records on line 17 with the image description as “walker.”
Attached to respondent’s e-mail were various documents including the Report that contained
petitioner’s unredacted social security number and medical information. The reporter, by reply e-
mail, asked Mr. Harvey about the subpoena directed to Mr. Hamstead in his wife’s case, to which
Mr. Harvey replied:
Before I can comment further about the reasons for the subpoena[,] I need to
confirm that question is in response to a statement made by Mr. Hamstead? The
comments to rule 3.6 allow me to respond to mitigate a statement made by a party
to litigation.
The reporter responded that, “Yes it was made in response to a comment by Mr. Hamstead.” Mr.
Harvey then explained his reasons for issuing the subpoena to Mr. Hamstead. Subsequently, the
reporter posted an unredacted copy of the Report to his Twitter account where it was viewable by
the general public.
On December 7, 2018, petitioner moved the circuit court to dismiss the remaining
misdemeanor charges, disorderly conduct and obstruction, based on her claim of prosecutorial
misconduct. The circuit court denied that motion. Thereafter, in exchange for Mr. Harvey’s
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dismissal of the obstruction charge, petitioner pled no contest to the misdemeanor disorderly
conduct charge. She was convicted of that charge on March 29, 2019. 3
On November 5, 2019, petitioner filed the instant case alleging invasion of privacy by Mr.
Harvey in his capacity as the prosecutor of Jefferson County. She also filed suit against respondent
Jefferson County Commission as Mr. Harvey’s employer. Petitioner alleged that the Report
contained not only petitioner’s social security number and her private medical treatment
information, but also understated the extent of her injuries, and falsely accused her of causing the
accident that Trooper Walker arrested her for. She further alleged that the Report was prepared by
the State Police with an eye toward exonerating Trooper Walker for her unlawful arrest and for his
use of unnecessary force that caused her substantial permanent injuries. Finally, she asserted that
Mr. Harvey effectively took up authorship of the Report and represented to the public that the
assertions in the Report were true.
On March 19, 2021, respondents filed a motion for summary judgment. Petitioner filed a
response and respondents filed a reply. Following oral argument, the circuit court granted summary
judgment to respondents by an order entered on April 26, 2021. The circuit court held that Mr.
Harvey enjoyed absolute prosecutorial immunity for the transmission of the Report to the reporter,
as it was done within his role as a prosecuting attorney. In the alternative, the circuit court held
that Mr. Harvey was entitled to qualified immunity, as well as the statutory immunity afforded to
employees of a political subdivision under “The Governmental Tort Claims and Insurance Reform
Act,” West Virginia Code § 29-12A-1 to -18. The circuit court also granted summary judgment to
respondent Jefferson County Commission because Mr. Harvey’s actions were a “prosecutorial
function” for which political subdivisions are immunized under West Virginia Code § 29-12A-
5(a)(2). Finally, the circuit court found that, even in the absence of these immunities, respondents
were entitled to summary judgment because the undisputed facts demonstrated no support for
petitioner’s claim of invasion of privacy.
Petitioner now appeals the circuit court’s April 26, 2021, order granting summary judgment
to respondents.
“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v.
Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). “A motion for summary judgment should be
granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning
the facts is not desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v.
Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). “Summary judgment is
appropriate where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on
an essential element of the case that it has the burden to prove.” Painter, 192 W. Va. at 190, 451
S.E.2d at 756, Syl. Pt. 4.
3
Petitioner’s conviction order was then used in federal court to obtain the dismissal of most
of the claims petitioner raised in her civil rights lawsuit, with the federal judge finding the
conviction to be proof that petitioner had been arrested upon probable cause. These dismissal
orders were later affirmed by the United States Court of Appeals for the Fourth CircuitSee
Hamstead v. W. Va. State Police, 841 F. App’x 615 (4th Cir. 2021).
4
Petitioner raises four assignments of error on appeal. In petitioner’s first assignment of
error, she argues that the circuit court erred in granting summary judgment to Mr. Harvey based
on absolute immunity. In petitioner’s second assignment of error, she argues that the circuit court
erred in granting summary judgment to Mr. Harvey based on qualified immunity. Petitioner’s
arguments in both assignments of error dovetail and concern the manner by which the circuit court
determined that Mr. Harvey was entitled to both absolute immunity and qualified immunity for his
actions regarding petitioner. Ultimately, however, petitioner concedes that the circuit court should
have focused its analysis solely on the issue of qualified immunity. Therefore, we need not reach
her first argument, that the circuit court should not have afforded Mr. Harvey absolute,
prosecutorial immunity. Instead, we focus our attention on petitioner’s second assignment of error
in which she argues that the circuit court erred in granting summary judgment to Mr. Harvey based
on qualified immunity where she provided evidence that Mr. Harvey’s actions were undertaken in
retaliation for petitioner calling him out after he repeatedly and maliciously subpoenaed her
counsel/husband as a witness in her own trial in violation of Rule 3.8(e) of the Rules of
Professional Conduct, and where Mr. Harvey’s actions fell outside his qualified immunity under
the common law and West Virginia Code § 29-12A-5(b)(2).
Petitioner highlights that “[t]here is no immunity for an executive official whose acts are
fraudulent, malicious, or otherwise oppressive.” Syl., in part, State v. Chase Securities, Inc., 188
W. Va. 356, 424 S.E.2d 591 (1992). Petitioner contends that Mr. Harvey’s motive was a question
for a jury and that summary judgment was inappropriate where there was substantial evidence of
a pattern of gross prosecutorial misconduct and convincing evidence that Mr. Harvey used his
position to engage in a personal vendetta against petitioner and her counsel for calling him out for
his misconduct. Petitioner avers that a strong inference exists that Mr. Harvey acted vindictively
and oppressively against petitioner and her counsel in publishing the Report, thus precluding
summary dismissal of the claim. Finally, petitioner argues that questions of motive and intent are
generally held to not be well suited to disposition by summary judgment. See, e.g., Syl. Pt. 4,
McClung v. Marion Cty. Comm’n, 178 W. Va. 444, 360 S.E.2d 221 (1987) (“Whether the
defendant in a retaliatory discharge case acted wantonly, willfully or maliciously is a function
peculiarly within the province of the fact finder.”).
We disagree and find that the circuit court did not err in finding that Mr. Harvey was
entitled to qualified immunity. Under the doctrine of qualified immunity, public officials and
employees are immune for acts or omissions arising out of the exercise of discretion in carrying
out their duties, so long as they are not violating any clearly established laws of which a reasonable
public official or employee would have known or otherwise acting maliciously, fraudulently, or
oppressively. See Parkulo v. W. Va. Bd. of Prob. and Parole, 199 W. Va. 161, 483 S.E.2d 507(1996). The common law doctrine of qualified immunity is designed to protect public officials
from the threat of litigation resulting from difficult decisions which must be made in the course of
public employment. To overcome qualified immunity, a claimant must establish that the employee
or official knowingly violated a clearly established law or acted maliciously, fraudulently, or
oppressively. A court must first decide whether the facts alleged set forth a violation of some
constitutional or legal right and decide if the right was “clearly established” at the time of the
defendant’s alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001).
5
Further,
[i]f a public officer is either authorized or required, in the exercise of his
judgment and discretion, to make a decision and to perform acts in the making of
that decision, and the decision and acts are within the scope of his duty, authority
and jurisdiction, he is not liable for negligence or other error in the making of that
decision, at the suit of a private individual claiming to have been damaged thereby.
Syl. Pt. 4, Clark v. Dunn, 195 W. Va. 272, 465 S.E.2d 374 (1995) (emphasis added). This Court
has held that “[a] public officer is entitled to qualified immunity for discretionary acts, even if
committed negligently.” Maston v. Wagner, 236 W. Va. 488, 500, 781 S.E.2d 936, 948 (2015). To
assess this question, a court must determine whether the acts or omissions constitute legislative,
judicial, executive, or administrative policy-making acts or whether they involve discretionary
governmental functions. See Syl. Pt. 10, W. Va. Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W.
Va. 492, 766 S.E.2d 751 (2014). If the act or omission is a policy-making act, then the State and/or
the officials involved are absolutely immune. If, on the other hand, the act or omission falls within
the category of discretionary functions,
a reviewing court must determine whether the plaintiff has demonstrated that such
acts or omissions are in violation of clearly established statutory or constitutional
rights or laws of which a reasonable person would have known or are otherwise
fraudulent, malicious, or oppressive . . . . In absence of such a showing, both the
State and its officials or employees charged with such acts or omissions are immune
from liability.
Id., Syl. Pt. 11, in part.
Because there is no specific delineation of what may or may not be said when a prosecuting
attorney communicates with the press, discretion is inherent. Thus, the analysis turns to whether
the acts alleged by the plaintiff can overcome qualified immunity because the acts violated some
clearly established right of which a reasonable public official would have known, or were
otherwise malicious, fraudulent, or oppressive.
Petitioner’s lawsuit is based on the common law right against unreasonable invasion of
privacy. West Virginia recognizes four types of invasion-of-privacy claims:
An “invasion of privacy” includes (1) an unreasonable intrusion upon the
seclusion of another; (2) an appropriation of another’s name or likeness; (3)
unreasonable publicity given to another’s private life; and (4) publicity that
unreasonably places another in a false light before the public.
Syl. Pt. 8, Crump v. Beckley Newspapers, Inc., 173 W. Va. 699, 320 S.E.2d 70 (1983). Petitioner’s
complaint also alleges the third type: that unreasonable publicity was given to her private life. An
invasion of privacy claim requires communication of facts related to one’s “private life.” This
element is unmet because Mr. Harvey communicated a public record. The documents in question
were part of the public case file in the possession of the Jefferson County Magistrate Clerk.
Petitioner’s attorney was aware the Report had been filed and was a public record but, like Mr.
Harvey, overlooked the social security number. Neither petitioner nor her attorney-husband took
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action to have the document removed from the file, redacted, or sealed. Further, the record shows
that petitioner’s counsel, on more than one occasion, filed documents in the unredacted and
unsealed public record that contained petitioner’s social security number. Moreover, the reporter
could have obtained the same documents by contacting the magistrate clerk and paying a copying
fee.
There is no liability when the defendant merely gives further publicity to
information about the plaintiff that is already public. Thus there is no liability for
giving publicity to facts about the plaintiff’s life that are matters of public record,
such as the date of his birth, the fact of his marriage, his military record, the fact
that he is admitted to the practice of medicine or is licensed to drive a taxicab, or
the pleadings that he has filed in a lawsuit. On the other hand, if the record is one
not open to public inspection, as in the case of income tax returns, it is not public,
and there is an invasion of privacy when it is made so.
Restatement (Second) of Torts § 652D, cmt. b (1977) (emphasis added). Accordingly, because Mr.
Harvey violated no legal standard, the circuit court committed no error in finding that he was
entitled to qualified immunity from petitioner’s claims.
Further, there are no facts in the record to indicate that the transmission of the Report to
the reporter was undertaken maliciously. The petitioner’s sole basis for claiming malice is her
claim that her underlying criminal prosecution was undertaken maliciously and without probable
cause in an effort to protect Trooper Walker from an excessive use of force claim regarding her
arrest. However, petitioner’s conviction on a plea of no contest eliminates any claim of a lack of
probable cause or a finding that the prosecution was malicious. As this Court has held,
“‘[i]n an action for malicious prosecution, plaintiff must show: (1) that the
prosecution was set on foot and conducted to its termination, resulting in plaintiff’s
discharge; (2) that it was caused or procured by defendant; (3) that it was without
probable cause; and (4) that it was malicious. If plaintiff fails to prove any of these,
he can not recover.’ Radochio v. Katzen, 92 W.Va. 340, Pt. 1 Syl. [114 S.E. 746,
(1922) ].” Syl. Pt. 3, Truman v. Fidelity & Casualty Co. of New York, 146 W.Va.
707, 123 S.E.2d 59 (1961).
Syl. Pt. 2, Norfolk S. Ry. Co. v. Higginbotham, 228 W. Va. 522, 721 S.E.2d 541 (2011) (emphasis
added). If a charge is supported by probable cause, the case against the defendant cannot be a
malicious prosecution. Here, petitioner was convicted in magistrate court of disorderly conduct
and obstructing an officer in a bench trial. On appeal, the circuit court denied petitioner’s motion
to dismiss the charges on the basis of prosecutorial or police misconduct. Petitioner then pleaded
nolo contendere to a misdemeanor charge of disorderly conduct in exchange for the State dropping
the obstruction charge. “Once convicted, whether as a result of a plea of guilty, nolo contendere,
7
or . . . [trial], convictions stand on the same footing.” State v. Evans, 203 W. Va. 446, 450, 508
S.E.2d 606, 610 (1998) (citation omitted). 4 Accordingly, we find no error.
In petitioner’s third assignment of error, she argues that the trial court erred in finding that
Mr. Harvey violated no legal right despite the fact that his publication of the Report intentionally
or recklessly placed petitioner in a false light by wrongfully inferring that she was guilty of the
then-dismissed destruction of property charge and that she faked the injuries she received from
Trooper Walker’s unnecessary and forceful arrest. Petitioner highlights that the right to privacy is
well established under West Virginia law and that her claim is based on the disclosure of private
information to the public at large, publication of unsupported and untrue medical information, and
other false information designed to place her in a false light. Petitioner cites to Syllabus Point 8 of
Crump, in which we recognized a cause of action for “publicity that unreasonably places another
in a false light before the public.”
The Restatement (Second) of Torts § 652E (1977) sets forth the elements of
a false light invasion of privacy claim as follows:
One who gives publicity to a matter concerning another that places the other
before the public in a false light is subject to liability to the other for invasion of his
privacy, if
(a) the false light in which the other was placed would be highly offensive
to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity
of the publicized matter and the false light in which the other would be placed.
Taylor v. W. Va. Dep’t of Health & Hum. Res., 237 W. Va. 549, 569-70, 788 S.E.2d 295, 315-16
(2016).
4 Later in their brief, respondents note that petitioner repeatedly contends her breach-of-
privacy claim is for “false light” invasion of privacy (“publicity that unreasonably places another
in a false light before the public”) and not “unreasonable publicity given to another’s private life.”
Respondents point out that petitioner’s complaint (1) raised a claim for unreasonable publicity, (2)
did not contain a “false light” claim, and (3) did not contain factual allegations that could provide
notice of such a claim. Further, it would have been improper for the circuit court to infer a duty to
amend petitioner’s complaint at the summary judgment stage, or to allow petitioner to amend her
complaint through briefing or oral advocacy. See S. Walk at Broadlands Homeowner’s Ass’n, Inc.
v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“It is well-established that
parties cannot amend their complaints through briefing or oral advocacy.”). Moreover, petitioner
never moved to amend her complaint and, therefore, it remains as was containing only her claim
for undue publicity. Finally, even if the arguments regarding false light had been considered by
the circuit court, they are without merit.
8
Petitioner further argues that the trial court defined her claim as one limited to unreasonable
publicity given to another’s private life, and, therefore, ignored her claim that the Report and the
context in which Mr. Harvey used it were relevant to her claims. Petitioner further contends that
e-mails with the reporter show that the reporter asked generally about claims of excessive force
and a “hefty civil seizure” by Trooper Walker, with only one reference to petitioner and Mr.
Hamstead which regards the subpoena to Mr. Hamstead. Petitioner avers that Mr. Harvey, in
sending the Report to the reporter, took an illicit role in defending Trooper Walker from
petitioner’s allegations in the federal lawsuit. Petitioner further avers that the Report bore no
relationship to the communication to which Mr. Harvey was responding. Petitioner further argues
that the Report was generated to exonerate Trooper Walker from the claim that he used excessive
force in a false arrest of petitioner, and that it contained disparaging statements that petitioner
faked her injuries. Petitioner contends that Mr. Harvey published the Report knowing that
petitioner had been exonerated of the destruction of property charge and, therefore, concludes that
Mr. Harvey “acted in reckless disregard as to the falsity of the publicized matter and the false light
in which the other would be placed.” See Taylor, supra. Petitioner further argues that Mr. Harvey
had a duty to carefully review and investigate the contents of the Report before moving it from the
magistrate court file, taking it out of the context in which it had been filed, and transmitting it to
the public at large, thereby representing the Report as truthful. Finally, petitioner argues that the
Report was not a “court document” when Mr. Harvey sent it to the reporter because it was not
attached to any court pleading. Instead, petitioner claims that the Report was a discovery document
that Mr. Harvey tried to withhold from petitioner’s counsel during discovery.
We disagree. As noted above, employees of political subdivisions are immune from
liability for injuries caused by negligent acts taken in the scope of their employment. West Virginia
Code § 29-12A-5(b) (1986) provides:
(b) An employee of a political subdivision is immune from liability unless
one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of
employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad faith,
or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a provision of this
code.
Mr. Harvey is an employee of the Jefferson County Commission for purposes of § 29-12A-5(b),
and thus is entitled to immunity. This statutory immunity for negligence is absolute and not
qualified. As previously discussed, responding to a reporter’s questions about an ongoing
prosecution was within the scope of Mr. Harvey’s duties as a prosecutor. Further, petitioner has
not identified any provision of the Code that would expressly impose liability. Finally, a public
official can be immune under multiple forms of immunity, petitioner’s unsupported arguments to
the contrary notwithstanding. Accordingly, we affirm the circuit court’s order granting summary
judgment to Mr. Harvey pursuant to the statutory immunity provided by West Virginia Code § 29-
12A-5(b).
9
In petitioner’s fourth and final assignment of error, she argues that the circuit court erred
in holding that Mr. Harvey’s employer, the Jefferson County Commission, could not be held liable
since, at the very least, Mr. Harvey acted negligently thereby rendering the Commission liable
under West Virginia Code § 29-12A-4(c)(2). The circuit court dismissed that claim under West
Virginia Code § 29-12A-5(a)(2) (1986) (“Section 5(a)(2)”) which provides that “[a] political
subdivision is immune from liability if a loss or claim results from . . . [j]udicial, quasi-judicial or
prosecutorial functions[.]” The circuit court found that, in light of Section 5(a)(2), the county
commission could not be held liable regardless of whether Mr. Harvey acted negligently.
Petitioner counters that Section 5(a)(2) was not intended to expand the scope of a
prosecutor’s immunities beyond the purely prosecutorial/judicial functions normally performed by
a prosecutor. Petitioner argues that Mr. Harvey’s publication was a discretionary, administrative
capacity function, and not a “prosecutorial function” and, therefore, the county commission is not
immune. Petitioner also claims that Section 5(b)(2) provides that, although county employees are
generally immune, they can be liable if their “acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner.” She highlights that Section 5(c) states that the
immunity of the employee conferred by Section 5(b) “does not affect or limit any liability of a
political subdivision for an act or omission of the employee.”
Petitioner next argues that West Virginia Code § 29-12A-4 (1986) (“Section 4”) is
controlling and renders the county commission liable for Mr. Harvey’s negligence. Section 4(c)(2)
provides that “[p]olitical subdivisions are liable for injury, death, or loss to persons or property
caused by the negligent performance of acts by their employees while acting within the scope of
employment.” Petitioner highlights that Mr. Harvey claims he failed to carefully read the contents
of the Report and accidentally published petitioner’s social security number to the public at large.
Petitioner cites various statutes protecting the privacy of one’s social security number. See e.g. W.
Va. Code § 16-5-33 (prohibiting use of social security numbers on birth, adoption or paternity
records); W. Va. Code § 3-2-30(b) (prohibiting use of social security numbers in voter lists); W.
Va. Code § 18-2-5a(11) (limiting use of social security numbers in student records). Thus,
petitioner avers that because Mr. Harvey, an employee of the respondent Jefferson County
Commission, negligently published petitioner’s social security number, the circuit court erred in
granting the county commission’s summary judgment motion.
We disagree and find that the circuit court correctly held that the county commission was
statutorily immune under Section 5(a)(2). Overcoming the statutory immunity provided by that
section requires proof of an underlying tortious offense. As discussed above, the facts in the record
on appeal cannot amount to an invasion of privacy tort because the disputed communication
involved a public document in a court file. Thus, the order on appeal is not erroneous as no
underlying tort occurred for which the county commission could be found liable.
Accordingly, for the foregoing reasons, we affirm the circuit court’s April 26, 2021, order.
Affirmed.
ISSUED: March 23, 2022
CONCURRED IN BY:
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Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
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