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Are justices dropping hints?

We’ve read and heard a lot lately about how U.S. Supreme Court justices are supposed to abide by the Constitution, the law and precedents in their rulings, regardless of how they may feel personally about an issue. The same is true of the West Virginia Supreme Court.

But that doesn’t mean justices can’t drop hints.

In May 2018, state high court justices (three of whom are off the court now) ruled in a lawsuit brought by B.R. Juvenile victims of a abuse and neglect are identified only by their initials.

B.R. had sued the state Department of Health and Human Resources, alleging the agency didn’t do enough to protect her from being abused — including being raped and beaten — while she lived with an aunt and uncle. I don’t know what evidence her attorney had, but it didn’t matter.

A circuit judge ruled against her. He dismissed the suit, citing the DHHR’s “qualified immunity” against such actions.

B.R.’s attorney appealed, but it did no good — well, almost no good. Supreme Court justices sitting in May 2018 upheld the circuit judge, also citing qualified immunity.

But there was nothing to keep B.R.’s attorney from trying again with a second lawsuit against the DHHR — and this time, he had a roadmap to follow, courtesy of the justices.

In their nearly four-page 2018 written opinion, justices made it clear why they had turned down B.R.’s appeal. Just in case anyone reading was too dense to get the point, they reiterated — twice in succeeding sentences. What killed B.R.’s lawsuit was that her attorney failed “to allege a single, specific law that (the DHHR) allegedly violated.”

It seems that the agency’s qualified immunity is null and void if a plaintiff can prove the DHHR disobeyed a specific law.

B.R.’s attorney can read. He filed a second lawsuit. It, too, was rejected by a circuit judge. But on Tuesday, the current justices released their opinion regarding an appeal: B.R.’s lawsuit can go forward, presumably to be argued on the merits of her case.

What changed? As last week’s written opinion notes, the new filing is similar to the one in 2018, but this time, B.R.’s attorney “added an additional count … alleging that (the DHHR) violated a statutory provision.” In other words, the agency is accused of breaking a specific state law — and that throws qualified immunity out the window.

Ah, the DHHR lawyers argued, what about res judicata? What about collateral estoppel? We laypeople would boil both concepts down by referring to them as bans against double jeopardy — being tried twice on the same accusation.

Not even a nice try. To the circuit judge’s credit, B.R.’s initial lawsuit was dismissed without prejudice. That means it could be filed again.

Will B.R. win her lawsuit? Who knows — but she won’t be deprived by the qualified immunity technicality of a chance to make her case. She’ll get her shot at justice.

Good for the justices, both those sitting in 2018 and those who agreed unanimously with last week’s decision.

They behaved as an appeals court ought to, disregarding any personal feelings and ruling as the law and the Constitution require.

But in doing so, they gave B.R.’s lawyer the tip he needed to avoid losing on a technicality. The justices, in short, found a way to ensure justice is done.

Myer can be reached at: mmyer@theintelligencer.net.

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