*1 “Bicentennial Year”

I am in receipt of your letter of April 1, 1976, wherein you request an opinion regarding several issues which may arise under or pertain to your division's enforcement of Chapter 20, Article 5A. Your request asks:

I have expanded my answer in response to your first inquiry to include potential civil actions involving malicious prosecutions. The terms “malicious prosecution” and “false arrest or imprisonment” are often inaccurately used interchangeably when in fact they are two basically and fundamentally distinct causes of action.

The gist of an action for malicious prosecution is the malicious purpose and lack of probable cause of a prosecutor in initiating criminal sanctions against an alleged violator. The gist of an action for false imprisonment is the illegal detention of a person without lawful process or by the unlawful execution of a lawful process. Vorholt v. Vorholt, 111 W.Va. 196, 160 S.E. 916 (1931).

False arrest or imprisonment has been further defined as “Any unlawful physical restraint by one of another's liberty, whether in prison or elsewhere.” Black's Law Dictionary 722 (Rev. 4th ed. 1968).

While the above-quoted definition of false imprisonment states that there must be a physical restraint, that restraint need not be an actual touching or confinement:

Therefore, if an individual is told by an officer that he is under arrest and the individual submits himself to the officer, said person is deprived of his liberty, and if the acts of the officer be unlawful, it is false imprisonment.

For civil liability to exist for false imprisonment or arrest, not only must the complainant be deprived of his liberty, but more importantly, that restraint must be unlawful:

*2 To summarize briefly, where warrants are issued upon a valid complaint by an individual with proper authority to so issue warrants and where lawfully executed by an individual with statutory or common-law authority to so execute, no action for false arrest will lie.

Whereas an action for false arrest or imprisonment will lie primarily against that individual or individuals who physically participate in an unlawful restraint of liberty, an action for malicious prosecution is pursued against the prosecutor or “complainant” in the criminal proceeding.

An action of malicious prosecution has been defined as one “[i]nstituted with intention of injuring defendant and without probable cause, and which terminates in favor of the person prosecuted. Black's Law Dictionary 1111 (Rev. 4th ed. 1968).

In order that recovery may be granted for malicious prosecution, it is essential that the plaintiff seeking redress allege and prove both a malicious purpose by the prosecutor and a lack of probable cause in the institution of the criminal proceedings:

Legal malice has been defined by our Supreme Court as “some motive other than a desire to punish the party who is alleged to have committed an offense.” Wadkins v. Digman, 82 W.Va. 623, 626, 96 S.E. 1016 (1918). It should be noted that our Court has further stated that while malice may be inferred from lack of probable cause, probable cause may not be inferred from the prosecutor's malice. Therefore, when probable cause exists, it is immaterial that the prosecutor's motives may be for a malicious purpose. Hunter v. Beckley Newspapers Corp., 129 W.Va. 302, 40 S.E.2d 332 (1946).

Courts look somewhat with disfavor upon suits for malicious prosecution, believing that persons acting in good faith and without malice have the right to protect their person and property without liability in damages to another who may be affected thereby. Porter v. Mack, 50 W.Va. 581, 40 S.E. 459 (1901).

Therefore, those Water Resources employees who have reason to believe that a violation of Code 20-5A exists or has existed would not be liable for malicious prosecution.

Your next question states:

There is no statutory or regulatory duty placed upon State employees to sign or be complaining witnesses for violations of West Virginia statutes. However, as part of the defined duties of Conservation Inspectors I, II and III, each is required to make inspections with regard to reclamation efforts and water pollution control programs and to file with his superiors reports of activities observed. It is specifically stated within civil service specifications that the “nature of work” for Conservation Inspectors I and III is such that they may be called upon or be required to testify at hearings and court proceedings. In addition, any individual may be subpoenaed to testify before various regulatory agencies and courts to relate his specific knowledge of any circumstances surrounding potential violations of Chapter 20, Article 5A.

*3 Your third query is:

Because a corporation is an artificial being, corporations allegedly guilty of criminal violations are indicted or cited as a natural person or individual may be, and such indictment will be charged in the name of the corporation.

Since it is not possible to arrest or confine an artificial person, and thus a corporation, after indictment or presentment, a summons is served upon the corporation as provided in West Virginia Code of 1931, as amended, Chapter 56, Article 3, Sections 13 and 14.

Section 13 provides, in part, that process against domestic corporations may be served:

Section 14 provides that foreign corporations licensed to do business in West Virginia may be served process as provided in Section 13 above:

Procedure after service as provided above differs from normal criminal procedure. Chapter 62, Article 2, Section 23, provides that where the corporation fails to appear, “ * * * [T]he court may proceed to trial and judgment without further process, as if the defendant had appeared and pleaded not guilty.”

In conclusion, I would advise that:

1. A Water Resources employee shall not be liable for false arrest or false imprisonment unless he unlawfully detains an individual without a valid warrant or executes a valid warrant in an unlawful manner.

*4 2. A Water Resources employee shall not be liable for malicious prosecution unless (a) he initiates criminal proceeding against an individual without probable cause to believe a violation exists and (b) he is motivated by some malicious purpose.

3. A Water Resources employee is, by the nature of his employment, charged with the responsibility of making observed violations known to his superiors and may be compelled to testify before regulatory review boards and the courts of this State, but is not required by law to sign warrants or to be a complaining witness.

4. Where there is a criminal violation by a corporation, that corporation, being an artificial person, is cited and indicted in the name of the corporation.