WEST VIRGINIA RECORD

ELKINS – State officials violated the constitutional rights of wildlife sanctuary owner Joel Rosenthal, according to U.S. District Judge John Preston Bailey.

On Nov. 13, Bailey stripped state Division of Natural Resources director Frank Jezioro, assistant attorney general William Valentino and DNR conservation officer Sean Duffield of the immunity from lawsuits that state employees generally enjoy.

Rosenthal has accused them of defamation and malicious prosecution under West Virginia law and violation of due process under the U.S. Constitution.

"In this case the pleaded facts, taken as true, demonstrate that the defendants violated the plaintiff's constitutional rights," Bailey wrote.

He ruled that Rosenthal could sue them in their individual capacities. By removing their immunity, he exposed them to punitive damages. He also cast doubt on the responsibility of taxpayers to provide a defense.

Jezioro, Valentino and Duffield filed a motion to alter judgment a day before Thanksgiving, but Bailey denied it upon returning to work the next Monday.

No lawyer achieved more spectacular success in West Virginia courts this year than Rosenthal -– and he isn't a lawyer.

On Jan. 8, he defended himself before the state Supreme Court of Appeals, without a lawyer, against a charge that he illegally possessed wildlife.

DNR agents had arrested him in 2005 for rescuing a fawn that nearly drowned.

Pocahontas Circuit Judge Joseph Pomponio had cleared him of the charge, but Jezioro and Valentino sought to overturn Pomponio's decision.

At oral argument, Rosenthal embarrassed Valentino so completely that the Justices wished they had denied Valentino's petition for review.

Three days later, they admitted that they granted the appeal improvidently. Without issuing an opinion, they simply dismissed it.

Two weeks after that, Jezioro sent Rosenthal a letter ordering him to cease and desist from providing care and rehabilitation to wildlife on his property at Hillsboro.

In July, Rosenthal sued Jezioro, Valentino and Duffield in Pocahontas County. He also sued DNR officers Mike Pizzino and Howard Shinaberry, who arrested him.

The defendants removed the suit to federal court, arguing that Rosenthal raised questions under the U.S. Constitution.

They moved to dismiss, pleading first that Rosenthal didn't serve proper notice.

Bailey agreed that Rosenthal didn't comply with the rules. He wrote that he could quash faulty service and require effective service, but he chose to skip it.

"In this case, given that the plaintiff is proceeding 'pro se,' service was attempted in good faith, each of the defendants has timely notice of this action, and the defendants can demonstrate no prejudice, it would appear to be waste of time and resources to quash service and delay the progress of this action for a period of time, just to be back at this point some time in the future," Bailey wrote.

He quoted a 1947 decision of a federal appeals court that "courts should not put themselves in the position of failing to recognize what is apparent to everyone else."

Then he demolished a series of arguments for immunity, ruling that Jezioro, Valentino and Duffield lost it when they violated Rosenthal's rights.

"By threatening the plaintiff with prosecution after the Circuit Court of Pocahontas County found that he was legally entitled to carry on his activities in caring for abandoned and needy animals, the defendants violated the plaintiff's due process rights," he wrote.

He dismissed Pizzino and Shinaberry from the case, finding that a two-year statute of limitations had run out on Rosenthal's claims over his arrest.

For Jezioro, Valentino and Duffield, Brian Morrison of Charleston moved to alter judgment. He argued that DNR hasn't taken any further action against Rosenthal.

He wrote that Jezioro and Valentino must have been acting in their official capacities.

Bailey didn't see it that way.

"Having reviewed the motion, this Court is of the opinion that the same should be, and is, hereby denied," he wrote.