State v. Ruggeri

• Decision Date: 03 July 1967
• Docket Number: No. 10730,10730
• Citation: 19 Utah 2d 216,429 P.2d 969
• Parties: d 216 The STATE of Utah, Plaintiff, v. The Honorable Henry RUGGERI, District Judge, Defendant.
• Court: Utah Supreme Court

Page 969

429 P.2d 969

19 Utah 2d 216

The STATE of Utah, Plaintiff, v. The Honorable Henry RUGGERI, District Judge, Defendant.

No. 10730.

Supreme Court of Utah.

July 3, 1967.

Phil L. Hansen, Atty. Gen., Jay Banks, Dist. Atty., Salt Lake City, for plaintiff.

Harley W. Gustin, Gustin & Richards, Salt Lake City, for defendant.

ELLETT, Justice:

The State of Utah seeks an extraordinary writ to compel the defendant judge to reverse his holding and to admit in evidence testimony which he had theretofore held inadmissible.

Rule 65B, U.R.C.P., is as follows:

(a) Special Forms of Writs Abolished. Special forms of pleadings and of writs in habeas corpus, mandamus, quo warranto, certiorari, prohibition, and other extraordinary writs, as heretofore known, are hereby abolished. Where no other plain, speedy and adequate remedy exists relief may be obtained by appropriate action under these rules, on any one of the grounds set forth in subdivisions (b) and (f) of this rule.

(b) Grounds for Relief. Appropriate relief may be granted:

(3) Where the relief sought is to compel any inferior tribunal, or any corporation, board or person to perform an act which the law specially enjoins as a duty resulting from an office, trust or station; * * *.

Subdivision (f) deals with habeas corpus matters.

While the rule abolishes extraordinary writs by name, nevertheless the remedy remains the same as when names were important, and in this case the State is simply seeking the relief which would be sought by way of the old writ of mandamus.

This matter is closely akin to the case of State v. Brady, 18 Utah 2d 434, 425 P.2d 155, recently decided by this court. There the defendant was entrapped into testifying against himself in a matter pending before a committing magistrate. Here the same thing occurred before the grand jury. Brady was subpoenaed before the grand jury, and without being told that he was the target of an investigation regarding himself and others, he testified after having asked for an attorney and being told that he could not have one in the grand jury room.

He was indicted for perjury for the testimony so given. He made a motion before the defendant judge to suppress the testimony given in the grand jury room, and the judge after hearing the arguments on the motion took the position that the constitutional rights of Brady had been violated, and the motion was granted.

The defendant contends that this court by an extraordinary writ cannot review errors of judgment.

It will be noticed that while the district court is a court of general jurisdiction, it is an inferior court to the Supreme Court for the purposes of the granting of an extraordinary writ.

The rule quoted above provides that we give appropriate relief where an inferior tribunal should be compelled to perform an act which the law specifically enjoins upon it. Had His Honor refused to rule upon the motion, we would have had no doubt that this court could compel him to rule, but we know of no case which would permit us to direct him how to rule; nor do we think that, now he has made his ruling, we can by mandamus compel him to change it.

In 34 Am.Jur., Mandamus, § 2, the following language is used:

Mandamus may be defined as a command issuing from a court of law of competent jurisdiction, in the name of the state or sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.

Section 4 reads as follows:

Mandamus is a remedy at law the nature and purpose of which is indicated in the definition already given. It is employed to compel the performance, when refused, of a ministerial duty, this being its chief use. It is available also to compel action, when refused, in matters involving judgment and discretion, but not to direct the exercise of judgment or discretion in a particular way, or the retraction or reversal of action already taken in the exercise of either.

This court has had many occasions to discuss the writ and how it should be used.

The case of State v. Hart, Judge, 19 Utah 438, 57 P. 415, was a case wherein the judge refused to impanel a jury of twelve men as requested by the prosecuting officer. In discussing the matter at page 443, 57 P. at page 416, this court said:

While it is clear that mandamus will not lie to direct or control the decision of an inferior court in a matter within its discretion, or to direct a court how it shall decide a case, the law is clearly established that when a court erroneously refuses to act in matters within its jurisdiction the writ will lie to compel it to do so. (Emphasis added.)

In Merrill on Mandamus (section 203) it is said that when a court refuses to try a case, erroneously deciding that it has no jurisdiction, it will be compelled by writ of mandamus to assume jurisdiction, and proceed with the case. It is now well established that when an inferior court has refused to entertain jurisdiction on some matter preliminary to a decision of a case before it on the merits, or refuses to act when the law requires it to act, or where, having obtained jurisdiction in a case it refuses to proceed in due exercise thereof, a writ of mandamus is a fitting and proper remedy to set such court in motion, and to speed the trial of a case, so as to reach the proper end, when no action below was had on the merits; but such right will not lie to an inferior court to correct alleged errors occurring in the exercise of its judicial discretion.

Again in Ketchum Coal Co. v. Christensen, Judge, 48 Utah 214, at page 221, 159 P. 541, at page 544, this court used the following language:

This court may not, be means of a writ of mandate, control or direct the discretion of an inferior court, however humble that tribunal may be. In any case, therefore, which has not proceeded to judgment, the inferior court may merely be compelled to act or go forward in case it refuses or fails to do so, but its judicial acts or discretion may not be controlled to any extent by a superior court by a writ of mandate.

In Richards v. District Court of Weber County, 71 Utah 473, at page 478, 267 P. 779, at page 781, this court made the following statement:

It is elementary that judicial or discretionary powers are not controlled by mandamus. A court may, by writ of mandate, be required to entertain jurisdiction and determine controversies where it refuses or fails to do so, but the decision itself is left to the court. This is fundamental.

In the case of Utah Copper Co. v. District Court of Third Judicial Dist., etc., 91 Utah 377, 64 P.2d 241, the District Court refused to allow certain amendments to the copper company's complaint and struck some of the allegations already made. This court was asked to grant a writ of mandamus. After citing authorities, the court at page 391 of the Utah Reports, 64 P.2d at page 247, said:

The reasons for such holdings are that where a court has jurisdiction of the subject-matter and of the parties, rulings made on demurrers, permitting or refusing amendments to pleadings, motions to strike, etc., involve and invoke jurisdiction not only requiring but demanding judgment of the court with respect thereto, and no matter how erroneous the rulings may be in such particular, they may not be reviewed on any of the extraordinary remedies. This court is firmly committed to that doctrine. (Emphasis added.)

This court has been liberal in granting extraordinary writs when there is no plain, speedy and adequate remedy at law to prevent a miscarriage of justice. See Mayers v. Bronson, 100 Utah 279, 114 P.2d 213, 136 A.L.R. 698. However, the granting of the writ is always a matter of discretion with this court and never a matter of right on behalf of the applicant. See Ferris, The Law of Extraordinary Legal Remedies, page 230.

The Supreme Court of our sister state of Nevada had occasion to pass upon a matter similar to the instant case. There a grand jury had not indicted local county commissioners but had filed a report with the court charging the commissioners with malfeasance and misfeasance in office. The commissioners filed a motion to expunge and strike from the record the report filed by the grand jury. The trial judge denied the motion, and a writ of mandamus was requested of the Nevada Supreme Court. That case is entitled State ex rel. Weber, et al., v. McFadden, Judge, 46 Nev. 1, 205 P. 594. At page 595 of 205 P. it was said:

Counsel for respondent insist that mandamus is not proper remedy in this case, and we agree with their contention. Whether it was respondent's legal duty under the facts stated in the petition to grant the motion cannot be inquired into in this proceeding. The act sought to be reviewed and reversed was not a ministerial act. The power to strike or refuse to strike the report from the files of the court involved the exercise of purely judicial functions. It is a rule of general acceptance that mandamus will not lie to control discretion or revise judicial action. 18 R.C.L. 297--299; High's Extraordinary Legal Remedies (3d Ed.) pp. 31, 32, 169, 174. This rule is well settled in this state. State (ex rel. Combination Silver Min. Co.) v. Curler, 4 Nev. 445; State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309; Hoole v. Kinkead, 16 Nev. 217; State (ex rel. Office Specialty Mfg. Co.) v. Curler, 26 Nev. 347, 67 Pac. 1075; State v. (Ninth Judicial) District Court, 40 Nev. 163, 161 Pac. 510. In the latter case this court recognized the general acceptance of the rule in the following language:

'It needs no citation of authority to support the well-established rule that the writ of mandamus will not assume the function of a writ of error, nor will it serve to require the inferior tribunal to act in a particular manner or to enter any particular judgment or...