Because Mr. Riley holds the status of a pretrial detainee in state custody, his federal constitutional challenge arises under the due process clause of the Fourteenth Amendment to the United States Constitution.   (See footnote 9)  See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525-526 (5^th Cir. 1999) (“The constitutional rights of a pretrial detainee flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment . . . which provides that no state shall 'deprive any person of life, liberty, or property, without due process of law. . . .' U.S. Const. amend. XIV, § 5.” (citing Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)); Syl. pt. 8, Rush v. Wilder, 644 N.W.2d 151 (Neb. 2002) (“While a convicted prisoner's claim alleging inadequate medical care is brought under the Eighth Amendment, a pretrial detainee's claim alleging inadequate medical care is a due process claim.”). Cf. Loe v. Armistead, 582 F.2d 1291, 1293-94 (4^th Cir. 1978) (“At the outset, we note that Loe was not a prisoner detained under a judgment of conviction; rather, he was a pretrial detainee. Under such circumstances, the protections that apply to him are found in the due process clause of the fifth amendment, since he was a federal prisoner, rather than in the eighth amendment's prohibition against cruel and unusual punishment.” (citations omitted)).

    It has been explained that a constitutional challenge raised by a pretrial detainee may be classified as an attack upon either a “condition of confinement,” or an “episodic act or omission.” As one court has explained:

        We noted [in Hare v. City of Corinth, 74 F.3d 633 (5^th Cir. 1996) (en banc)] that determining which standard to apply in analyzing constitutional challenges by pretrial detainees hinges upon the classification of a challenge as an attack on a “condition of confinement” or as an “episodic act or omission.” 74 F.3d at 644. A “condition of confinement” case is a “[c]onstitutional attack[] on general conditions, practices, rules or restrictions of pretrial confinement.” Id.

Scott v. Moore, 114 F.3d 51, 53 (5^th Cir. 1997) (en banc). See also Olabisiomotosho, 185 F.3d at 526 (“We begin by deciding whether to classify the 'challenge as an attack on a “condition of confinement” or as an “episodic act or omission.”' The former category would include such claims as 'where a detainee complains of the number of bunks in a cell or his television or mail privileges.' The latter category, on the other hand, occurs 'where the complained-of harm is a particular act or omission of one or more officials.'”).

    Mr. Riley complains of a deprivation of adequate medical care that was not necessarily inflicted by a particular individual or on a particular occasion, but rather that W. Va. Code § 27-5-2(a) operates to systematically deprive him, as it would other pretrial detainees, of any chance of receiving medical care in the form of involuntary hospitalization. We find this complaint amounts to a challenge of his conditions of confinement. See, e.g., Fredericks v. Huggins, 711 F.2d 31, 33 (4^th Cir. 1983) (treating claim by pretrial detainees that they were unconstitutionally denied methadone detoxification as a “condition of confinement” claim). Because Mr. Riley herein challenges a condition of confinement, we apply “the reasonable relationship test of Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).” Scott, 114 F.3d at 53.

    As a foundation for its so called “reasonable relationship test,” Bell v. Wolfish first explained that pretrial detainees may not be subjected to punishment.

        In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. . . . A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a “judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest. . . . Under such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the constitution.

441 U.S. 520, 535-37, 99 S. Ct. 1861, 1872-73, 60 L. Ed. 2d 447, 466-67 (emphasis added) (internal citations omitted) (footnote omitted). See also Frake v. City of Chicago, 210 F.3d 779, 781 (7^th Cir. 2000) (“In this case it is Robert Frake's due process rights with which we are concerned. He was a pretrial detainee, not found guilty of a crime, and therefore he could not be 'punished.' For that reason, his treatment in the detention facility is analyzed under the Due Process Clause, rather than the Eighth Amendment's prohibition against cruel and unusual punishments.” (emphasis added) (citing Bell v. Wolfish, . . .)); Duran v. Elrod, 542 F.2d 998, 999 (7^th Cir. 1976) (“Strictly speaking, pre-trial detainees may not be punished at all because they have been convicted of no crime. The sole permissible interest of the state is to ensure their presence at trial. Following this reasoning, courts have held that suits by pre-trial detainees alleging conditions amounting to cruel and unusual punishment are better analyzed as due process attacks on conditions that exceed the sole permissible state interest of ensuring presence at trial. . . .” (emphasis added)).

    After clarifying that punishment may not be imposed upon pretrial detainees, Bell then described the test traditionally used in determining whether a governmental act is punitive in nature, or is merely a regulatory restraint that may be imposed prior to a determination of guilt:

    “Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment_retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.”

441 U.S. at 537-38, 99 S. Ct. at 1873, 60 L. Ed. 2d at 467-68 (quoting Kennedy v. Mendoza- Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644, 661 (1963)).

    The Supreme Court in Bell went on to explain that

        [t]he factors identified in Mendoza-Martinez provide useful guideposts in determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment in the constitutional sense of that word. A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. . . .  Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on “whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].” . . .  Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal_if it is arbitrary or purposeless_a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

441 U.S. at 538-39, 99 S. Ct. at 1873-74, 60 L. Ed. 2d at 468 (emphasis added) (footnotes omitted) (internal citations omitted).

    Another court, interpreting Bell, explained thusly:

        The standard applicable to conditions of confinement claims by pretrial detainees was enunciated in Bell v. Wolfish, . . . . The proper inquiry is whether those conditions amount to punishment of the detainee, for, under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt. Id. at 535, 99 S. Ct. at 1871-72[, 60 L. Ed. 2d at 466]. However, not every disability imposed during pretrial detention amounts to “punishment” in the constitutional sense. Id. at 537, 99 S. Ct. at 1873[, 60 L. Ed. 2d at 467]. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Id. at 539, 99 S. Ct. at 1874[, 60 L. Ed. 2d at 468]. The Government has legitimate interests that stem from its need to manage the facility in which the individual is detained. Id. at 540, 99 S. Ct. at 1874-75[, 60 L. Ed. 2d at 469]. Furthermore, there is a de minimis level of imposition with which the Constitution is not concerned. Id. at 539 n.21, 99 S. Ct. at 1874 n.21[, 60 L. Ed. 2d at 469 n.21].

Smith v. Copeland, 87 F.3d 265, 268 (8^th Cir. 1996).

    Analyzing W. Va. Code § 27-5-2(a) under the forgoing framework, we must determine if the complained of state action bears a rational relationship to a legitimate governmental purpose. Before deciding whether there is a legitimate purpose for the state action at issue, we more closely examine what exactly is that action.

        “'Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.' Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).” Syl. pt. 4, Syncor Int'l Corp. v. Palmer, 208 W. Va. 658, 542 S.E.2d 479 (2001).
Syl. pt. 4, Charter Commun. VI, PLLC v. Community Antenna Serv., Inc., 211 W. Va. 71, 561 S.E.2d 793 (2002). The Language of W. Va. Code § 27-5-2(a) is plain in expressly excluding incarcerated persons from those who may be the subject of an involuntary hospitalization application:

        (a) Any adult person may make an application for involuntary hospitalization for examination of an individual who is not incarcerated at the time the application is filed when the person making the application has reason to believe that: . . .

(Emphasis added).   (See footnote 10)  In practical application, however, this exclusion is limited to pretrial detainees, as there are other provisions in the Code providing for the involuntary hospitalization of incarcerated convicts. See W. Va. Code § 28-5-31. Moreover, this provision categorically excludes pretrial detainees from access to this type of medical care regardless of how serious their mental health condition may be, or how urgent their need for care.

    It is clearly established that, due to the limited purpose for which one may be detained prior to a conviction, which is merely to ensure presence at trial, the protections afforded pretrial detainees are at least as great as those afforded convicts under the Eighth Amendment. “[Fourteenth Amendment] due process is at least co-extensive as the guarantees of the eighth amendment.” Loe, 582 F.2d at 1294 (emphasis added) (citation omitted). See also Duran, 542 F.2d at 999-1000 (“We hold that as a matter of due process, pre-trial detainees may suffer no more restrictions than are reasonably necessary to ensure their presence at trial. While the decisions that have interpreted the Cruel and Unusual Punishment Clause may be valuable by analogy as defining that which may never be imposed on any inmate, whether convicted prisoner or pre-trial detainee, a more stringent standard controls the treatment by the state of pre-trial detainees. Since they are convicted of no crime for which they may presently be punished, the state must justify any conditions of their confinement solely on the basis of ensuring their presence at trial. Any restriction or condition that is not reasonably related to this sole stated purpose of confinement would deprive a detainee of liberty or property without due process, in contravention of the Fourteenth Amendment.”); Rush, 644 N.W.2d at 157 (“While a convicted prisoner's claim alleging inadequate medical care is brought under the Eighth Amendment, a pretrial detainee's claim alleging inadequate medical care is a due process claim. . . . In general, however, the claims are analyzed in the same manner, . . . . Thus, the analysis to be conducted would be the same regardless of whether [the] claim is brought under the 8^th or 14^th Amendments.” (citations omitted)).

    The fact that the protections afforded pretrial detainees under the Fourteenth Amendment are at least commensurate with Eighth Amendment protections granted convicts is significant as

    the [United States] Supreme Court has held that the eighth amendment prohibition against cruel and unusual punishments, applicable to the states via the fourteenth amendment, requires states to provide medical care for those whom it is punishing by incarceration. Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). . . .

Wideman v. Shallowford Comm. Hosp., Inc., 826 F.2d 1030, 1034 (11^th Cir. 1987) (emphasis added). Thus, the State may not deprive pretrial detainees of adequate medial care. Here, however, W. Va. Code § 27-5-2(a) plainly deprives pretrial detainees of adequate medical care when their mental health condition is so severe as to require involuntary hospitalization.

    Upon finding deprivation of medical care, we must next consider whether the provision of W. Va. Code § 27-5-2(a) excluding pretrial detainees from access to involuntary hospitalization procedures is reasonably related to a legitimate governmental objective. See Bell, 441 U.S. at 538-39, 99 S. Ct. at 1873-74, 60 L. Ed. 2d at 468-69. See also Scott, 114 F.3d at 53 (“Under Wolfish, 441 U.S. at 539, 99 S. Ct. at 1874[, 60 L. Ed. 2d at 468-69], a constitutional violation exists only if we then find that the condition of confinement is not reasonably related to a legitimate, non-punitive governmental objective.” (citation omitted)); Duran, 542 F.2d at 1001 (“Pre-trial detainees are by definition deprived of their liberty, and such deprivation is without due process except to the extent it is necessary to serve important state interests.”).

    Commissioner Lovrien appears to assert that the purpose behind the exclusion of pretrial detainees from access to involuntary hospitalization procedures under W. Va. Code § 27-5-2(a) is a measure to combat overcrowding of the mental health care facilities, and to prevent involuntary hospitalization to be improperly used to send “a significant number of incarcerated persons” to “Sharpe Hospital under somewhat doubtful circumstances.” We do not find these purposes rationally related to the exclusion of pretrial detainee's from involuntary hospitalization procedures. First, simply allowing an application for the involuntary hospitalization of a pretrial detainee to be filed does not mean that the detainee will automatically he hospitalized. Rather, the application merely initiates a gatekeeping process whereby the Commissioner can then evaluate whether the detainee should be involuntarily hospitalized. It is this evaluation process that is the proper avenue for reducing the number of improper involuntary hospitalizations.

    Furthermore, while Commissioner Lovrien contends that W. Va. Code § 27-5- 2(a) is a measure to combat overcrowding of the mental health care facilities, the Jail Authority informed us during oral argument that, although there were thirty-three thousand inmates housed in the Regional Jails during the last calendar year, only twenty requests were made for transfer to a psychiatric facility. The Jail Authority also opined that it anticipated the same low numbers for the next calendar year.   (See footnote 11)  Thus, we do not find Commissioner Lovrien's overcrowding argument persuasive.

    We are likewise unpersuaded by Commissioner Lovrien's assertion that the Jail Authority is required to provide psychiatric services for those in its custody, and, correspondingly, to the extent that Mr. Riley has been deprived of medical care, that culpability lies with the Authority. It is undisputed that the State has a duty to provide medical care_which includes necessary and adequate psychiatric and psychological services. See Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9^th Cir. 2002) (“Th[e] duty to provide medical care encompasses detainees' psychiatric needs.”); Rodney v. Romano, 814 F. Supp. 311, 312 (E.D.N.Y. 1993) (“[A] pretrial detainee, has at least as great a right to adequate medical treatment as that of a sentenced inmate. In addition, pretrial detainees, like sentenced inmates, are entitled to psychiatric and psychological care.”) (emphasis omitted). See also Riddle v. Mondragon, 83 F.3d 1197, 1202 (10^th Cir. 1996) (finding that under the Eighth Amendment “[t]he states have a constitutional duty to provide necessary medical care to their inmates, including psychological or psychiatric care.”); Partridge v. Two Unknown Police Officers, 791 F.2d 1182, 1187 (5^th Cir. 1986) (“Under the Bell v. Wolfish standard, the defendants had a duty, at a minimum, not to be deliberately indifferent to Partridge's serious medical needs. A serious medical need may exist for psychological or psychiatric treatment, just as it may exist for physical ills.” (footnote omitted)). Indeed, as the Fourth Circuit has said in a holding with which we are in agreement, “[w]e see no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart.” Bowring v. Godwin, 551 F.2d 44, 47 (4^th Cir. 1977). “The key factor in determining whether a system for psychological or psychiatric care in a jail or prison is constitutionally adequate is whether inmates with serious mental or emotional illnesses or disturbances are provided reasonable access to medical personnel qualified to diagnose and treat such illnesses or disturbances.” Inmates of the Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir. 1979). In short, “when inmates with serious mental ills are effectively prevented from being diagnosed and treated by qualified professionals, the system of care does not meet . . . constitutional requirements

. . . and violates the Due Process Clause.” Id.

    We understand and recognize that occasions will arise where the Jail Authority is simply ill equipped to provide for the medical needs of a given inmate. In this case, the Jail Authority, through its evaluating psychologist, determined that Mr. Riley's needs were beyond its capabilities. Under review of an application for involuntary hospitalization, Commission Lovrien could have considered whether the Jail's determination was accurate. However, because Mr. Riley is statutorily denied the opportunity to even make an application, no such review can occur.

    Finally, we note that the Prosecuting Attorney who is trying the underlying criminal case filed an amicus curiae brief in this case, asserting that the exclusion of pretrial detainees from the application process for involuntary hospitalization is rationally related to the government purpose of ensuring the public safety by removing from the public those individuals who have been alleged to pose a danger of serious harm because of a mental illness. The Prosecuting Attorney contends that because a mentally ill pretrial detainee is in custody, the detainee does not pose a risk of serious harm to others. This argument ignores the fact that the State has an affirmative duty to provide medical care to those in its custody.

    Courts have recognized that generally a state is under no affirmative obligation to provide protective services.

        Several court of appeals decisions have addressed the issue of whether a state or municipality has a duty under the fourteenth amendment to provide various protective services to its citizens. Almost without exception, these courts have concluded that governments are under no constitutional duty to provide police, fire or other public safety services.

Wideman, 826 F.2d at 1033-34. Indeed, in an authoritative ruling on this issue, the United States Supreme Court said, “our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 196, 109 S. Ct. 988, 1003, 103 L. Ed. 2d 249, 259 (1989).   (See footnote 12)  However, it has been recognized that where there is a special relationship between an individual and the state, certain rights may arise, such as the right to medical care:

    Both the Supreme Court and various circuit courts have indicated that the existence of a “special custodial or other relationship” between an individual and the state may trigger a constitutional duty on the part of the state to provide certain medical or other services. In these special circumstances, the state's failure to provide such services might implicate constitutionally protected rights.

Wideman, 826 F.2d at 1034. Elaborating on this “special relationship” principal, Wideman explained:

    The primary thread weaving these special relationship cases together is the notion that 
        if the state takes a person into custody or otherwise assumes responsibility for that person's welfare, a “special relationship” may be created in respect of that person, and the fourteenth amendment imposes a concomitant duty on the state to assume some measure of responsibility for the person's safety and well-being.

826 F.2d at 1035 (citation omitted). Wideman also provided examples of when the special relationship has been deemed to arise. Notably, it has been found to arise in the context of a pretrial detainee:

        Courts have . . . recognized the existence of a special relationship imposing a duty on a state or municipality to provide care and treatment for persons in its custody in situations less extreme than permanent incarceration or institutionalization. In Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985), cert. denied, [475] U.S. [1096], 106 S. Ct. 1492, 89 L. Ed. 2d 894 (1986), this court concluded that the due process clause of the fourteenth amendment mandates that pretrial detainees must be provided with at least minimally adequate levels of food, living space, and medical care, just as the eighth amendment requires such standards for convicted prisoners. Id. at 1573.

826 F.2d at 1034 (emphasis added). In the instant case, Mr. Riley was taken into custody by the State, which created a special relationship giving rise to a duty upon the State to assume responsibility for Mr. Riley's welfare, namely -- to provide him with at least minimally adequate levels of, inter alia, medical care. Moreover, Wideman concluded by explaining that “a constitutional duty can arise only when a state or municipality, by exercising a significant degree of custody or control over an individual, places that person in a worse situation than he would have been had the government not acted at all.” 826 F.2d at 1035. By virtue of excluding pretrial detainees from participating in the process for involuntary hospitalization, the State has worsened the situation for those in its custody who suffer from severe mental health conditions.

    We are mindful that,

    “In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond all reasonable doubt.” Syllabus Point 1, State ex rel. Appalachian Power Company v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).

Syl. pt. 4, McCoy v. Vankirk, 201 W. Va. 718, 500 S.W.2d 534 (1997). However, we also recognize that, “[p]risoners are no one's constituents and weld little, if any, political clout. Consequently, society frequently forgets about, or even ignores these people, its unfortunate charges. It is therefore incumbent upon this Court ever to be vigilant in the protection of their legal rights.” Ray v. McCoy, 174 W. Va. 1, 4, 321 S.E.2d 90, 93 (1984). Thus, based upon our analysis, we are constrained to hold that insofar as the “incarcerated persons” language of W. Va. Code § 27-5-2(a) (2002) (Supp. 2002) operates to wholly exclude pretrial detainees in state custody from participating in the application process for involuntary hospitalization, it is unconstitutional as it violates the due process right of such detainees to receive medical care.