SER McMahon v. Hamilton
Annotate this Case
September 1996 Term
___________
No. 23422
___________
STATE OF WEST VIRGINIA
EX REL. MARIE M. McMAHON,
Petitioner
v.
HONORABLE JOHN M. HAMILTON,
SPECIAL JUDGE OF THE CIRCUIT COURT
OF MORGAN COUNTY, AND
JOHN P. ADAMS, ET AL.,
Respondents
___________________________________________________
Petition for Writ of Prohibition
WRIT GRANTED AS MOULDED
___________________________________________________
Submitted: September 25, 1996
Filed: December 13, 1996
Marie M. McMahon
Berkeley Springs, West Virginia
Pro Se
Lucien G. Lewin
Steptoe & Johnson
Martinsburg, West Virginia
Joanna I. Tabit
Steptoe & Johnson
Charleston, West Virginia
Attorneys for Respondents, John P. Adams,
Honorable Donald C. Hott, Glen Stotler, Donald Sharp,
Morgan County Fire Board and Howard Trittipoe
Paul B. Weiss
Martin & Seibert
Martinsburg, West Virginia
Attorney for Respondents, Paul B. Weiss, Susan R. Snowden,
Daniel T. Booth and Martin & Seibert, L.C.
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1. "'"A writ of prohibition will lie where the trial court does not have
jurisdiction or, having jurisdiction, exceeds its legitimate powers." Syllabus Point 3, State
ex rel. McCartney v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978).' Syllabus Point 4,
Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991)." Syl. pt. 2, State ex rel. Reed v.
Douglass, 189 W. Va. 56, 427 S.E.2d 751 (1993).
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.
" Syl. pt. 4, State ex rel. Hoover v. Berger, No. 23737, ___ W. Va. ___,
___ S.E.2d ___ (Nov. 15, 1996).
3.
Under W. Va. R. Civ. P. 17(c), whenever an infant, incompetent person,
or convict has a duly qualified representative, such as a guardian, curator, committee or other
like fiduciary, such representative may sue or defend on behalf of the infant, incompetent
person, or convict. If a person under any disability does not have a duly qualified
representative he may sue by his next friend. The court shall appoint a discreet and
competent attorney at law as guardian ad litem for an infant, incompetent person, or convict
not otherwise represented in an action, or the court shall make such other order as it deems
proper for the protection of any person under disability.
4.
Where a substantial question exists regarding the mental competency of a
party not otherwise represented to proceed with the litigation presently before the court, the
court may, where there is good cause shown, require the party to undergo a mental
examination in order to determine whether a guardian ad litem should be appointed to protect
the party's interests pursuant to West Virginia Rule of Civil Procedure 17(c).
5.
"W. Va. Code, 27-3-1(a), provides for confidentiality of communications
and information obtained in the course of treatment and evaluation of persons who may have
mental or emotional conditions or disorders, subject to the exceptions set out in W. Va.
Code, 27-3-1(b)." Syl. pt. 1, State v. Simmons, 172 W. Va. 590, 309 S.E.2d 89 (1983).
6. W
hen a court orders a party to undergo a mental examination by a
psychiatrist to determine whether a guardian ad litem should be appointed to protect the
party's interests under West Virginia Rule of Civil Procedure 17(c), the court shall receive
a copy of the appointed psychiatrist's report of such examination. Pursuant to W. Va. Code, 27-3-1(b)(3) [1977], the court may release such report only if it finds that it is sufficiently
relevant to a proceeding before the court to outweigh the importance of maintaining the
confidentiality established by W. Va. Code, 27-3-1(a) [1977].
McHugh, Chief Justice:
Pro se petitioner Marie McMahon, invoking this Court's original jurisdiction
pursuant to W. Va. Code, 53-1-3 [1933], seeks to prohibit enforcement of an order entered
April 8, 1996 in the Circuit Court of Morgan County by the Honorable John M. Hamilton,
special judge, a respondent herein. In that order, Judge Hamilton, upon the motion of
respondents Martin & Seibert, L.C., Susan R. Snowden, Daniel T. Booth and Paul B. Weiss,
ordered petitioner to undergo a psychiatric examination to determine whether she is mentally
competent to proceed with the underlying civil action instituted by her against respondents
and others such that a guardian ad litem should be appointed to protect her interests.
This CourtSee footnote 1 has before it the petition, the responses thereto, and all matters of
record. For reasons discussed below, petitioner Marie McMahon's request that this Court
prohibit enforcement of that portion of the circuit court's order directing her to undergo a
mental examination is denied. However, this Court finds that it was error for the circuit
court to direct the appointed psychiatrist to transmit copies of the resulting report to the
respondents herein. Accordingly, enforcement of that portion of the circuit court's order is
prohibited.
I.
A.
In 1984, petitioner, acting pursuant to a general power of attorney granted her
by Bart and Alice Whirley, instituted a lawsuit against six defendants in the Circuit Court
for the City of Winchester, Virginia, attacking the probate of the estate of one Ann Schrader.
By order of October 15, 1986, that lawsuit was dismissed.
Subsequently, Charles G. Aschmann, Jr., the attorney hired by petitioner in the
above-mentioned probate action, sued petitioner and the Whirleys for payment of $7,000 in
legal fees associated with that action. Petitioner filed a counterclaim against Mr. Aschmann,
alleging legal malpractice. By order of February 9, 1987, the Circuit Court for the City of
Alexandria, Virginia granted Mr. Aschmann's motion for a directed verdictSee footnote 2 as well as his
motion to strike petitioner's counterclaim. The court further ordered petitioner to pay to Mr.
Aschmann $7,000 plus interest from January 5, 1987. Petitioner never appealed that
judgment order.
The remaining facts of this case consist primarily of a multitude of lawsuits
instituted by petitioner, pro se, in a variety of state and federal courts against a various
medley of defendants, among them, federal and circuit court judges, lawyers and clerks of
court. Petitioner's litigious behavior is rooted in her adamant belief that she was denied her constitutional right to a trial by jury when the above-described directed verdict was rendered
against her for $7,000 in unpaid legal fees. Petitioner contends that the defendants against
whom she has asserted, and in some cases, reasserted, this claim have all conspired to
deprive her of due process. Though recitation of petitioner's many court actions is repetitive
and, at times, confusing, we believe it necessary to the ultimate resolution of this case,
particularly with regard to respondents' position that petitioner does not comprehend the
meaning and effect of the countless lawsuits she has instituted for more than a decade.
B.
Pursuant to the Full Faith and Credit clause of the United States Constitution,
art. IV, § 1, the Circuit Court of Morgan County entered the above-described judgment of
$7,000 for nonpayment of legal fees against petitioner and in favor of Mr. Aschmann. The
circuit court further denied petitioner's counterclaim that the $7,000 judgment was void on
the ground that, by directing a verdict in Mr. Aschmann's favor, the Circuit Court for the
City of Alexandria, Virginia had denied petitioner her constitutional right of trial by jury.
Petitioner subsequently filed petitions for appeal with this Court regarding the
Morgan County Circuit Court's dismissal of her counterclaim against Mr. Aschmann and the
entry of the $7,000 judgment for nonpayment of legal fees in favor of Mr. Aschmann. This
Court denied petitioners' petitions for appeal by orders of April 26, 1989 and July 9, 1990.
By order of December 10, 1990, the Supreme Court of the United States denied petitioner's
petition for writ of certiorari of this Court's July 9, 1990 order.
In the meantime, petitioner instituted an action in the United States District
Court for the Eastern District of Virginia in an effort to collaterally attack the $7,000
judgment for nonpayment of legal fees. In that case, petitioner named as a defendant the
Honorable Donald Kent, the judge who presided over the nonpayment of legal fees
proceeding and who signed the order awarding Mr. Aschmann $7,000 in legal fees.
Petitioner also named as defendants the attorney who represented Mr. Aschmann and whose
motion for a directed verdict was granted in that case, as well as the attorney who also
represented Bart and Alice Whirley, on whose behalf petitioner instituted the original probate
action. Petitioner alleged that these defendants conspired to deny her the constitutional right
to a trial by jury. This action was dismissed as to all defendants. Petitioner's subsequent
appeal of this order to the Fourth Circuit Court of Appeals was denied, as was her petition
for writ of certiorari to the Supreme Court of the United States.
Petitioner, at the same time,See footnote 3 instituted an action against Mr. Aschmann in the
United States District Court for the Northern District of West Virginia in yet another effort
to attack the $7,000 judgment. This action was transferred to the United States District Court for the Eastern District of Virginia where Mr. Aschmann's motion for summary judgment
was granted. Though petitioner's action was dismissed with prejudice, she nevertheless filed
a "motion for reconsideration" and a motion to vacate the judgment awarding Mr. Aschmann
$7,000 in unpaid legal fees. In its order of March 4, 1988, the district court denied
petitioner's motions, clearly stating that it "is bound to give to the prior state court judgment
the same preclusive effect which it would receive in the courts of Virginia[,]" and that it
"do[es] not have subject matter jurisdiction to review the final judgments or decisions of state
courts." Petitioner filed a "petition for rehearing" in the United States Court of Appeals for
the Fourth Circuit, which petition was denied by order of August 19, 1988.
Not to be discouraged by these failed court actions, petitioner then instituted
a lawsuit in the United States District Court for the Western District of Virginia against the
following defendants, alleging, inter alia, that they had all conspired to deny her the
constitutional right to a trial by jury in all of her prior claims: five of the six defendants in
the original probate action in Winchester, Virginia, the presiding judge, the clerk of the court,
and the four attorneys who participated therein, including Mr. Aschmann; Judge Donald
Kent, who ordered petitioner to pay Mr. Aschmann $7,000 in unpaid legal fees, as well as
the two attorneys who participated in the unpaid legal fees case; the Honorable Albert V.
Bryan, Jr. of the United States District Court for the Eastern District of Virginia, who
presided over and dismissed petitioner's previous action against Judge Kent, as well as both
the clerk of that court and counsel for one of the defendant attorney's in that action.
Petitioner also named as defendants Judge Patrick Henry of the Circuit Court of Morgan County, who presided over the litigation concerning attorney David Savasten, see n. 3, supra,
and who accorded full faith and credit to the $7,000 judgment awarded Mr. Aschmann.
Petitioner further named as defendants the Honorable William Kidd of the United States
District Court for the Northern District of West Virginia who dismissed petitioner's previous
action against attorneys Savasten, Bentley and Douglas, see n. 3, supra, as well as the
Honorable Richard Williams of the United States District Court for the Eastern District of
Virginia, who likewise dismissed petitioner's action against Mr. Aschmann.See footnote 4 Finally,
petitioner named as defendants attorneys Clarence E. Martin, III and Daniel T. BoothSee footnote 5 for
their participation in both entering Mr. Aschmann's $7,000 judgment for nonpayment of
legal fees in Morgan County Circuit Court and her action against Mr. Aschmann before
Judge Williams.
By order of January 14, 1993, the Honorable B. Waugh Crigler, United States
Magistrate Judge, recommended dismissal of all of petitioners' claims against all of the
named defendants.See footnote 6 By subsequent order, entered July 27, 1993, Magistrate Judge Crigler,
upon determining that petitioner "has engaged in litigation that is frivolous, unnecessary, vexatious, and oppressive to all defendants in this case[,]" recommended that monetary
sanctions of approximately $42,378.77 be levied against her pursuant to Rule 11 of the
Federal Rules of Civil Procedure. Magistrate Judge Crigler further recommended that
petitioner be enjoined "from filing, instituting, continuing or prosecuting any civil action in
this or in any other federal court without first obtaining leave of this court. . . . In no way,
however, should this Order be construed as prohibiting [petitioner] from pursuing any direct
appeal of the decisions by this court or by the Fourth Circuit Court of Appeals in this case[.]"
Magistrate Judge Crigler's recommendations were adopted by orders entered by the
Honorable James H. Michael, Jr., Judge of the United States District Court for the Western
District of Virginia. On appeal, the United States Court of Appeals for the Fourth Circuit
affirmed both of these orders.
During the pendency of the above proceeding, petitioner instituted another
action in the Circuit Court of Berkeley County, West Virginia, seeking to vacate the $7,000
judgment previously entered against her in the Circuit Court of Morgan County and to vacate
"the lien thereinafter entered . . . for the unsatisfied amount of said judgment." Named as
defendants were the Honorable Christopher Wilkes, who entered an order permitting the sale
of petitioner's home to satisfy the $7,000 judgment, and Clarence E. Martin, III and Daniel
T. Booth, attorneys who participated in prior proceedings concerning that judgment. Finding,
inter alia, that petitioner's motion "constitutes a collateral attack on a final judgment of a court of competent jurisdiction[,]" Judge Donald C. HottSee footnote 7 denied petitioner's motion by order
entered October 28, 1993. Petitioner's petition for appeal of this order was refused by this
Court on April 6, 1994.
Upon motion by Mr. Martin and Mr. Booth, Judge Hott permanently enjoined
petitioner "from instituting in any court of this State any action at law or in equity [against
them] based in whole, in part, or in any manner whatsoever upon allegations that the
judgment of the Circuit Court for the City of Alexandria, Virginia . . . is in any manner void,
voidable or otherwise invalid[.]" Judge Hott reasoned that,
[b]ased upon . . . [petitioner's] pattern of abusive and oppressive
litigation, it may be anticipated that [petitioner] will accept
neither the judgment of the United States District Court for the
Western District of Virginia nor the judgment of the Circuit
Court for Berkeley County, West Virginia as final, valid,
binding and dispositive of her claims against the Plaintiffs
herein, but is likely in the future to embroil the Plaintiffs in
further repetitious and frivolous litigation predicated upon her
unfounded contention that the judgments of the Circuit Court for
the City of Alexandria and the Circuit Court for Morgan County
in the respective cases of Aschmann v. McMahon are invalid
and that the Plaintiffs' actions in obtaining or enforcing said
judgments are tortious in nature.
By subsequent order entered January 13, 1994, Judge Hott further imposed
sanctions against petitioner, pursuant to Rule 11 of the West Virginia Rules of Civil
Procedure, in the amount of $6,210.01.
In the meantime, petitioner was engaged in proceedings with the Morgan
County Fire Board, a respondent herein, relating to her refusal to pay county fire fees. The
Fire Board placed a lien upon her home for the amount of fees owed, which amount was
settled from the proceeds of the sale of petitioner's home upon foreclosure.
In an amended complaintSee footnote 8 filed in the Circuit Court of Morgan County on
March 1, 1996, petitioner instituted the underlying civil action in this case, naming as
defendants John P. Adams, the Honorable Donald C. Hott,See footnote 9 Glen Stotler, Donald Sharp,
Martin & Siebert, L.C., Daniel T. Booth, Susan Snowden, Paul Weiss, the Morgan County
Fire Board and Howard Trittipoe. In that complaint, petitioner again sought, inter alia, to
collaterally attack the $7,000 judgment for nonpayment of legal fees on the ground that she
was denied her constitutional right to a trial by jury.See footnote 10
By motion dated August 24, 1995, respondents Martin & Seibert, L.C., Susan
R. Snowden, Daniel T. Booth and Paul B. Weiss requested that the Circuit Court of Morgan
County "appoint a qualified psychiatrist to determine if [petitioner] is mentally competent
to proceed with the present action or if appointment of a guardian ad litem to protect her
interests is appropriate." Following an April 8, 1996 hearing on the matter, the circuit court
found:
There is no cause or reason to question the general sanity
or mental competency of [petitioner].
However, the Court has substantial concern with regard
to [petitioner's] mental ability to rationally comprehend and
accept matters relating to the present litigation and litigation that
has preceded it in other cases, both here and in other venues as
reflected by the pleadings and papers filed herein.
Accordingly, the Court finds that good cause has been
shown for the appointment of a competent psychiatrist to
examine [petitioner] and report back to the Court concerning
[petitioner's] ability to proceed with the present action in her
own right or whether a guardian ad litem should be appointed.
The court appointed Dr. Bradley Soule to examine petitioner and to report his findings back
to the court. The circuit court instructed Dr. Soule "that it requires no general finding of
[petitioner's] general competency. Rather, Dr. SouleSee footnote 11 should limit his evaluation and report to the question of whether [petitioner] is competent to act responsibly with regard to this and
other civil actions in which she has been involved and whether the appointment of Guardian
ad litem would be in [petitioner's] best interest."
The circuit court further ordered the appointed psychiatrist to "report back to
Court within 30 days of the date of this order his findings as to the concerns of the Court
heretofore stated. Concomitantly therewith, Dr. Soule shall transmit a copy of this report to
all parties hereto. Should Dr. Soule fail to do so the Clerk of the Court is authorized and
ordered to provide a copy of Dr. Soule's report to any party hereto requesting same."
It is the enforcement of this orderSee footnote 12 that petitioner seeks to prohibit.See footnote 13
II.
In syllabus point 2 of State ex rel. Reed v. Douglass, 189 W. Va. 56, 427 S.E.2d 751 (1993), we reiterated that which is necessary for this Court to grant a writ of
prohibition:
'"A writ of prohibition will lie where the trial court does
not have jurisdiction or, having jurisdiction, exceeds its
legitimate powers." Syllabus Point 3, State ex rel. McCartney
v. Nuzum, 161 W. Va. 740, 248 S.E.2d 318 (1978).' Syllabus
Point 4, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991).
Furthermore, in syllabus point 4 of State ex rel Hoover v. Berger, ___ W. Va.
___, ___ S.E.2d ___ (Nov. 15, 1996), this Court held:
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.
III.
As previously indicated, respondents filed a motion with the circuit court to
determine petitioner's mental competency to proceed with the pending civil action instituted by her and to, thereafter, determine if a guardian ad litem should be appointed to protect her
interests therein. It is respondents' contention that the circuit court's authority to order
petitioner to undergo a psychiatric examination so as to determine her mental ability to
rationally comprehend and accept matters relating to the present litigation and litigation that
has preceded it is derived from West Virginia Rule of Civil Procedure 17(c).
West Virginia Rule of Civil Procedure 17(c)See footnote 14
authorizes a court to, inter alia,
appoint a guardian ad litem for an incompetent person not otherwise represented in an action:
Infants, incompetent persons, or convicts. -- Whenever
an infant, incompetent person, or convict ha[s] a duly qualified
representative, such as a guardian, curator, committee or other
like fiduciary, such representative may sue or defend on behalf
of the infant, incompetent person, or convict. If a person under
any disability does not have a duly qualified representative he
may sue by his next friend. The court or clerkSee footnote 15 shall appoint a
discreet and competent attorney at law as guardian ad litem for
an infant, incompetent person, or convict not otherwise
represented in an action, or the court shall make such other
order as it deems proper for the protection of any person under
disability.
Id. (emphasis and footnote added).
The purpose of "appointing a guardian ad litem is to protect the person under
disability." Jackson General Hospital v. Davis, 195 W. Va. 74, 77, 464 S.E.2d 593, 596
(1995). Indeed,
courts should 'appoint guardians ad litem for parties litigant
when reasonably convinced that a party litigant is not
competent, understandingly and intelligently, to comprehend the
significance of legal proceedings and the effect and relationship
of such proceedings in terms of the best interests of such party
litigant.'
Buckler v. Buckler, 195 W. Va. 705, 708, 466 S.E.2d 556, 559 (1995) (quoting Graham v.
Graham, 240 P.2d 564, 569 (Wash. 1952)).
A court's "power to appoint a guardian ad litem [under Rule 17(c)] 'has been
broadly interpreted and has not been limited by a narrow construction of the words "infant"
or "incompetent" person.' Wright & Miller, Federal Practice & Procedure §1570 at 776
(1971)." Cyntje v. Government of the Virgin Islands, 95 F.R.D. 430, 432 (D.C.V.I. 1982),
aff'd, 782 F.2d 1027 (3d Cir. 1985). See N.O. v. Callahan, 110 F.R.D. 637, 649 (D. Mass.
1986); Huebner v. Ochberg, 87 F.R.D. 449, 456 (E.D. Mich 1980). A party who has not
been adjudicated incompetent may, nevertheless, lack the mental capacity to participate in
a matter before the court. In such an instance, under Rule 17(c), a court may appoint a
guardian ad litem to protect the interests of such party litigant.See footnote 16 See Helton v. Helton, 362 So. 2d 257, 259 (Ala. Ct. App. 1978); People In Interest of M.M., 726 P.2d 1108, 1119 (Colo.
1986); Callahan, 110 F.R.D. at 649; Cyntje, 95 F.R.D. at 432, 433; Matter of S.W., 385 A.2d 315, 317 (N.J. Ct. App. 1978); Bodnar v. Bodnar, 441 F.2d 1103, 1104, cert. denied,
404 U.S. 913 (1971). See also Buckler, 195 W. Va. at 708, 466 S.E.2d at 559 (without
reference to Rule 17(c), guardian ad litem appointed where adult party to divorce proceeding
had not been adjudicated incompetent but had been "acting in a manner potentially adverse
to her interests."); Adoption of Kirk, 623 N.E.2d 492, 495 (Mass. Ct. App. 1993), review
denied, 629 NE.2d 1004 (1994) ("An individual may be competent for one purpose but not
for another.").See footnote 17
When a substantial question exists regarding the mental competency of a party,
a court must determine whether the party is or is not competent to proceed with the action
before it. See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989), aff'd, 931 F.2d 60 (1991). Only then will the court be able to determine if a guardian ad litem should be
appointed under Rule 17(c). See Id.
In Cyntje, supra, the court determined that
[w]hen the competency of a party is raised, a court may
require that party to submit to a psychiatric examination, so that
the court may have medical facts on which its decision on the
necessity of appointing a guardian ad litem can be based.
'The court, as a layman cannot judge the plaintiff's
mental stability. It is appropriate that the court be furnished up-
to-date information concerning the plaintiff's present mental
condition, both in order to consider the many facets of the trial
and the proposed relief, and to avoid any risk of finding that the
time required for pretrial proceedings and trial might prove
futile.'See footnote 18
(footnote added). Id. 95 F.R.D. at 432 (quoting Swift v. Swift, 64 F.R.D. 440, 442 (E.D. N.
Y. 1974). See Bodnar, 441 F.2d at 1104 (a court "is not powerless to ascertain whether a
litigant is competent. . . . Where there is a showing of a substantial question of competency,
the Judge with protective restrictions can, in making that determination, require a medical
examination.")
In Cyntje, not unlike the present case, the court was given good cause to
question plaintiff's mental competency "not only because of the nature and substance of [his]
complaints, but also because they [were] so numerous and, in substance, alike." Id 95 F.R.D.
at 432. Of the eleven complaints filed by the plaintiff in that case, nine arose out of his
allegations that the government of the Virgin Islands illegally denied him permission to
operate an express bus service on the islands of St. Thomas and St. John. Id. The plaintiff
sued various government officials, some more than once, as well as individuals who were,
in some way, connected to the processing of his complaints. Id., 95 F.R.D. at 433.
The court in Cyntje, upon finding plaintiff's "mental competency to file and
prosecute court actions on his own behalf [to be] subject to question[,]" scheduled a hearing
in order to question plaintiff regarding the substance of his complaints and to "afford the
court an opportunity to observe [his] behavior and lucidity." Id., 95 F.R.D. at 433. The
court concluded that, thereafter, if it determines that plaintiff's mental competency remains
at issue, then it would appoint a psychiatrist to conduct a mental examination. Id.
We find that under W. Va. R. Civ. P. 17(c), whenever an infant, incompetent
person, or convict has a duly qualified representative, such as a guardian, curator, committee
or other like fiduciary, such representative may sue or defend on behalf of the infant,
incompetent person, or convict. If a person under any disability does not have a duly
qualified representative he may sue by his next friend. The court shall appoint a discreet and
competent attorney at law as guardian ad litem for an infant, incompetent person, or convict not otherwise represented in an action, or the court shall make such other order as it deems
proper for the protection of any person under disability.
Where a substantial question exists regarding the mental competency of a party
not otherwise represented to proceed with the litigation presently before the court, the court
may, where there is good cause shown, require the party to undergo a mental examination
in order to determine whether a guardian ad litem should be appointed to protect the party's
interests pursuant to West Virginia Rule of Civil Procedure 17(c).
In this case, the circuit court found there to be good cause shown for
appointment of a competent psychiatrist to examine petitioner to ascertain her capacity to
understand the meaning and effect of the litigation she has instituted. See Donnelly v.
Parker, 486 F.2d 402, 407 (D.C. Cir. 1973). We agree.
The circuit court had before it numerous pleadings in which petitioner accused
various defendants of conspiring to deprive her of her constitutional right to a trial by jury
with regard to the $7,000 judgment against her for unpaid legal fees. Petitioner has sued
federal and circuit court judges, lawyers and clerks of court, some more than once, who have
had some connection to her lawsuits. Petitioner vehemently insists that they are all
participants in the constitutional conspiracy against her.
Petitioner's litigious behavior has cost her her home, which was sold to satisfy
the $7,000 judgment and from which she now faces ejectment. Moreover, her perceived
deprivation of her right to due process has also resulted in monetary sanctions against her in
excess of $50,000.
It is clear to this Court that petitioner either refuses to accept or is unable to
understand the meaning and effect of the legal proceedings she has instituted. We find that
a substantial question exists regarding petitioner's mental competency to proceed with the
litigation she has instituted in the Circuit Court of Morgan County and that good cause was
shown to warrant the circuit court's April 8, 1996 order requiring petitioner to undergo a
mental examination in order to determine whether a guardian ad litem should be appointed
to protect her interests pursuant to Rule 17(c).
IV.
As indicated above, the circuit court's April 8, 1996 order directs the appointed
psychiatrist, following examination of petitioner, to
report back to the Court within 30 days of the date of this order
his findings as to the concerns of the Court heretofore stated.
Concomitantly therewith, [the appointed psychiatrist] shall
transmit a copy of this report to all parties hereto. Should [the
appointed psychiatrist] fail to do so the Clerk of the Court is
authorized and ordered to provide a copy of [the] report to any
party hereto requesting same.
In syllabus point 1 of State v. Simmons, 172 W. Va. 590, 309 S.E.2d 89
(1983), this Court held: "W. Va. Code, 27-3-1(a), provides for confidentiality of
communications and information obtained in the course of treatment and evaluation of
persons who may have mental or emotional conditions or disorders, subject to the exceptions
set out in W. Va. Code, 27-3-1(b)."
W. Va. Code, 27-3-1(a) [1977] expressly provides that "[c]ommunications and
information obtained in the course of treatment or evaluation of any client or patient shall
be deemed to be 'confidential information[.]'" Id., in relevant part.
W. Va. Code, 27-3-1(b)(3) [1977], one of the exceptions to the confidentiality
provision of W. Va. Code, 27-3-1(a) [1977], provides that such confidential information
may be disclosed "[p]ursuant to an order of any court based upon a finding that said
information is sufficiently relevant to a proceeding before the court to outweigh the
importance of maintaining the confidentiality established by this section[.]"
The public policy underlying the nondisclosure of such confidential
information "is to enhance communications and effective treatment and diagnosis by
protecting the patient/client from the embarrassment and humiliation that might be caused
by the disclosure of information imparted during the course of consultation." Syl. Pt. 2, in
relevant part, State v. Roy, 194 W. Va. 276, 460 S.E.2d 277 (1995).
Clearly, the appointed psychiatrist's report of petitioner's mental examination
will be critical to the circuit court's determination of whether a guardian ad litem should be
appointed to protect petitioner's interests in the underlying litigation. Thus, it is necessary
that the circuit court receive a copy of the psychiatrist's report.
Our concern is with that portion of the circuit court's order directing the
appointed psychiatrist to transmit copies of his report to the respondents herein. As indicated
above, under W. Va. Code, 27-3-1(b)(3) [1977], such confidential information may not be
disclosed unless and until the circuit court finds "that said information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the
confidentiality established by this section." The circuit court has obviously not yet received
the appointed psychiatrist's report regarding petitioner's mental competence to proceed with
the underlying litigation. Not until he receives such report will he be able to determine
whether, under W. Va. Code, 27-3-1(b)(1) [1977], the information therein should be
disclosed to respondents as being sufficiently relevant to the proceeding before it to outweigh
the importance of maintaining the confidentiality established by W. Va. Code, 27-3-1 [1977].
Accordingly, when a court orders a party to undergo a mental examination by
a psychiatrist to determine whether a guardian ad litem should be appointed to protect the
party's interests under West Virginia Rule of Civil Procedure 17(c), the court shall receive
a copy of the appointed psychiatrist's report of such examination. Pursuant to W. Va. Code,
27-3-1(b)(3) [1977], the court may release such report only if it finds that it is sufficiently
relevant to a proceeding before the court to outweigh the importance of maintaining the
confidentiality established by W. Va. Code, 27-3-1(a) [1977].
It was, therefore, error for the circuit court to order the appointed psychiatrist
to transmit copies of his report of petitioner's mental examination to all parties in the first
instance.
V.
For the reasons discussed above, petitioner's petition for a writ of prohibition
is granted as moulded. The case shall proceed below in accordance with the principles set
forth in this opinion.
Writ granted as moulded.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia
Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton,
Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on
that same date. Pursuant to an administrative order entered by this Court on October 15,
1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of
Appeals commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
According to the court's February 9, 1987 order, though a jury was empaneled
to hear the case, the court directed a verdict for Mr. Aschmann after all of the parties
presented their cases. We note that Mr. Aschmann's motion for voluntary nonsuit against
the Whirleys was granted and that the action against them was dismissed without prejudice.Footnote: 3
Also during this time, petitioner filed a legal malpractice action in Morgan
County Circuit Court against attorney David H. Savasten who, along with Mr. Aschmann,
represented Bart and Alice Whirley in the original probate action. The circuit court, the
Honorable Patrick G. Henry, III, judge, dismissed petitioner's action and by order of April
18, 1990, this Court refused petitioner's petition for appeal. Petitioner subsequently filed suit
in the United States District Court for the Northern District of West Virginia against Judge
Henry, Mr. Savasten and Mr. Savasten's two attorneys, Claudia Bentley and Richard L.
Douglas, alleging that they conspired against her to violate her constitutional rights. This
action was dismissed, which dismissal was affirmed by the United States Court of Appeals
for the Fourth Circuit. Footnote: 4
This action was originally brought in the United States District Court for the
Northern District of West Virginia but was transferred to the Eastern District of Virginia. Footnote: 5
Mr. Booth is a respondent herein. See discussion, infra.Footnote: 6
In its January 14, 1993 order, the court found it necessary to fully articulate
the reasons for its dismissal of petitioner's claims in the hope that, "[i]f this action does
anything, . . . it will bring to [petitioner's] attention the proposition that the right to a trial by
jury in a civil case, under the Constitution of the United States, is a qualified right, not an
absolute one." (footnote omitted). Footnote: 7
Judge Hott is a respondent herein. See discussion, infra.Footnote: 8
Petitioner's original complaint was filed August 8, 1995.Footnote: 9
Judge Hott was apparently named as a defendant because he dismissed
petitioner's most recent lawsuit, issued a permanent injunction against her and made various
rulings against her in the proceedings with the Morgan County Fire Board.Footnote: 10
In her amended complaint, petitioner alleged, inter alia:
Defendants Hott, Martin & Seibert and their attorneys are
using any means to enforce a Virginia Judgment that is void (per
applicable laws) on its face. Said judgment clearly shows no
jury made the decision . . . that it was a discretional judgment by
the court . . . such discretion was not afforded said court with
compliance to Constitutions a jurisdictional requirement. He
abused his power to rule against the overwhelming evidence in
favor of this Plaintiff . . . in short, Aschmann was paid $1878.36
to write a complaint he never was able to get a court to accept
. . . it had to be amended by another attorney subsequently. It
is a matter of record and a one page affidavit by local attorney
(hereto attached) substantiates a part of the above. Plaintiff was
denied completion of the court by that Alexandria court, denied
due process and Court abused his power. Defendants Hott and
two of Martin & Seibert Attorneys, Weiss & Snowden
perpetrated the denial of trial by jury and other acts that violate
WV Const. Art. 3, 17 and 3, 10, as well as those of the United
States Constitution, Amendments One, Five, Seven and
Fourteen on August 9, 1993 [.]
Speaking to Plaintiff, Defendant Hott admits on page 34
(transcript) 'You have not got it to trial yet'. . . which appears
to ordinary persons, to be bragging of his power to deny jury
trial (in reality to do so violates his own oath of office) and is at
the least disrespectful and destructive to the Constitutions he has
sworn to uphold and support; he is also ambiguous possibly,
when he admits recognition of same by telling Plaintiff 'You are
reading the Constitution' (thusly he must know Alexandria
Virginia Judgment to be void) but goes on to say 'I have never
been a constitutional lawyer, I just work out of the Code of
West Virginia, that is about all I can comprehend.' The end
result was an injunction to keep this Plaintiff out of court on
these matters, which was another abuse of power and process,
since the courts are open to all.
. . . .
This Plaintiff has never submitted a hand written
pleading in any of these matters. Per the above and the
Constitutions that support her actions (as well as stare decisis)
she is loyal enough to the Constitutions to fight for their survival
but that does not make her psychotic ( nor does she misrepresent
. . . lie or fail to know what court she is in, as two defendants
herein did) she is upset emotionally that SOME judicial officers
seem determined to destroy the very foundation of our judicial
system . . . she does love justice which has not been
forthcoming to her YET [.]Footnote: 11
Upon Dr. Soule's subsequent refusal to perform the requested examination,
the circuit court appointed another psychiatrist, Dr. Raymond Shapiro. The order appointing
Dr. Shapiro has, to date, not been signed or entered.Footnote: 12
Also in its April 8, 1996 order, the circuit court ordered a stay of the
underlying civil action until such time as the appointed psychiatrist has reported to the court.
Petitioner immediately filed a petition for a writ of prohibition with this Court and, by order
of May 16, 1996, this Court issued a rule to show cause. Oral arguments on the matter were
heard on September 25, 1996.Footnote: 13
Subsequent to the filing of this petition for writ of prohibition, this Court, by
order of October 21, 1996, refused yet another petition for appeal filed by petitioner. By
order of September 15, 1995, the Morgan County Circuit Court granted Mr. Aschmann's
motion for summary judgment in his ejectment action against petitioner. Mr. Aschmann had
purchased petitioner's home when it was sold to satisfy the $7,000 judgment for unpaid legal
fees. The circuit court's September 15, 1995 order ordered petitioner to vacate her former
residence. Footnote: 14
W. Va. R. Civ. P. 17(c) is substantially similar to Fed. R. Civ. P. 17(c). We
therefore give due consideration to federal cases interpreting the latter in determining the
meaning and scope of our rules. State v. McGinnis, 193 W. Va. 147, 158 n.14, 455 S.E.2d 516, 527 n.14 (1994); Painter v. Peavy, 192 W. Va. 189, 192 n.6, 451 S.E.2d 755, 758 n. 6
(1994). Footnote: 15
Though W. Va. R. Civ. P. 17(c) permits the clerk to appoint a guardian ad
litem, its federal counterpart contains no such provision. See Marlyn Lugar and Lee
Silverstein, West Virginia Rules of Civil Procedure, p. 162-63 (1960), for a discussion of the
difference between the West Virginia and the federal rule and the reason the West Virginia
rule includes the clerk within its provision.Footnote: 16
We emphasize that this petitioner has not been adjudicated incompetent and
that the circuit court, in its April 8, 1996 order, expressly stated that its concern was with
regard to petitioner's "ability to proceed with the present action" and that "[t]here is no cause
or reason to question [her] general sanity or mental competency [.]" Indeed, "a declaration
of incompetency and the resulting appointment of a committee, guardian, or conservator to
oversee an individual's affairs may affect [petitioner's] constitutionally-guaranteed liberty
interests[,]" State ex rel. Shamblin v. Collier, 191 W. Va. 349, 352, 445 S.E.2d 736, 739
(1994), and would implicate Chapter 44A of the West Virginia Code, "West Virginia
Guardianship and Conservatorship Act," and its legislatively-derived procedures to
determine a person's competency. See e.g., W. Va. Code, 44A-2-1, et seq. We do not
address, in this case, those situations in which a party is either "under an existing
guardianship or has otherwise been judicially found to be incompetent." Thomas v.
Humfield, 916 F.2d 1032, 1033 n.1 (5th Cir. 1990), aff'd, 32 F.3d 566 (1994), cert. denied,
115 S. Ct. 1138 (1995). Footnote: 17
Cf. syl. pt. 3, In Matter of Lindsey C., ___ W. Va. ___, 473 S.E.2d 110
(1995) ("In abuse and neglect proceedings the appointment of a guardian ad litem is required
for adult respondents who are involuntarily hospitalized for mental illness, whether or not
such adult respondents have also been adjudicated incompetent.")Footnote: 18
Compare Helton, 362 So. 2d at 259, in which the court indicated that in some
cases, "it is sufficient that the trial court is apprised of the possibility that a party is
incompetent by the pleadings or otherwise. Such notice enables the court to appoint a
guardian ad litem to protect the alleged incompetent's interests." Thus, based upon evidence
of the party's mental incompetence introduced below, "the trial court could have properly
concluded -- without an additional mental examination -- that the [party] was mentally
incompetent and that the appointment of a guardian ad litem was necessary to protect his
interests." Id.
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