Blair v. Maynard, No. 16488

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW; This is an original proceeding in which the petitioner, Myrtle Sue Blair, seeks a writ of mandamus to compel the respondent; Stewart
Citation324 S.E.2d 391,174 W.Va. 247
PartiesMyrtle Sue BLAIR v. Elliott E. MAYNARD, Judge.
Docket NumberNo. 16488
Decision Date21 December 1984

Page 391

324 S.E.2d 391
174 W.Va. 247
Myrtle Sue BLAIR
v.
Elliott E. MAYNARD, Judge.
No. 16488.
Supreme Court of Appeals of
West Virginia.
Dec. 21, 1984.

Page 392

[174 W.Va. 248] Syllabus by the Court

1. Under West Virginia Constitution art. III, § 17, the right of self-representation in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably denied.

2. The fundamental right of self-representation recognized in West Virginia Constitution art. III, § 17 may not be denied without a clear showing in the record that the pro se litigant is engaging in a course of conduct which demonstrates a clear intention to obstruct the administration of justice.

Myrtle Sue Blair, pro se.

Gregory W. Bailey, Deputy Atty. Gen., Charleston, for respondent.

McGRAW, Justice:

This is an original proceeding in which the petitioner, Myrtle Sue Blair, seeks a [174 W.Va. 249] writ of mandamus to compel the respondent, Judge Elliott E. Maynard of the Circuit Court of Mingo County, to allow her to appear pro se in a civil action brought by the petitioner in that court. A trial in this case was previously begun in which the petitioner was acting as her own counsel. An early mistrial resulted, however, when the petitioner made certain improper remarks in her opening statement to the jury. 1 Subsequently, the respondent informed

Page 393

[174 W.Va. 250] the petitioner that the case would be set again for trial only when she had an attorney to assist her. The respondent maintains that, due to the petitioner's limited experience and the legal complexities of this particular case, allowing the petitioner to continue to appear as her own counsel will likely result in more mistrials, unfairly imposing additional burden and expense upon the defendants. The petitioner, also citing economic reasons, wishes to continue pro se.
I

Self-representation by a litigant was formerly a duty rather than a privilege or right. II W. Odgers & W. Odgers, The Common Law of England 1423 (1911). Preceding the gradual evolution of the legal profession, the common law requirement was that a party "should appear and conduct his own cause in his own words." 1 F. Pollock & F. Maitland, The History of English Law 211 (2nd ed. 1898). Even long after the establishment of the legal profession, self-representation often maintained a preferred, if not mandatory, status. In England, "not until 1837 was counsel allowed in cases of felony." T. Plucknett, A Concise History of the Common Law 435 (5th ed. 1956). For a variety of legal and cultural reasons, "it was only gradually that an attorney was allowed to take the place of his client for all purposes." II W. Holdsworth, A History of English Law 312 (4th ed. 1936).

Justice Stewart, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), concisely summarized the early American experience.

In the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England.

The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, "the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting

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the law to secure convictions." This prejudice gained strength in the Colonies where "distrust of lawyers became an institution." Several Colonies prohibited pleading for hire in the 17th century. The prejudice persisted into the 18th century as "the lower classes came to identify lawyers with the upper class." The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a "sudden revival, after the War of Revolution, of the old dislike and distrust of lawyers as a class." In the heat of these sentiments the Constitution was forged.

This is not to say that the Colonies were slow to recognize the value of counsel in criminal cases. Colonial judges soon departed from ancient English practice and allowed accused felons the aid of counsel for their defense. At the same time, however, the basic right of self-representation was never questioned. We have found no instance where a colonial court required a defendant in a criminal case to accept as his representative an unwanted lawyer. Indeed, even where counsel was permitted, the general practice continued to be self-representation.

[174 W.Va. 251] 422 U.S. at 826-28, 95 S.Ct. at 2537, 45 L.Ed.2d at 576-77 (footnotes omitted).

Whether viewed as an inherent right, or guaranteed by constitution or statute, the right to act as one's own attorney in courts of law is still uniformly recognized. See, e.g., Phillips v. Tobin, 548 F.2d 408 (2nd Cir.1976); Sangster v. Sangster, 366 So.2d 1136 (Ala.Civ.App.1979); People v. Dunlap, 623 P.2d 408 (Colo.1981); Dobbins v. Dobbins, 234 Ga. 347, 216 S.E.2d 102 (1975), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); Custom Builders, Inc. v. Clemons, 52 Ill.App.3d 399, 367 N.E.2d 537, 10 Ill.Dec. 149 (1977); State ex rel. Stephan v. O'Keefe, 235 Kan. 1022, 686 P.2d 171 (1984); Hickman v. Frerking, 4 Kan.App.2d 590, 609 P.2d 682 (1980); Ann Arbor Bank v. Weber, 338 Mich. 341, 61 N.W.2d 84 (1953); Maldonado v. State Board of Parole, 102 Misc.2d 880, 424 N.Y.S.2d 589 (1979); State v. Pledger, 257 N.C. 634, 127 S.E.2d 337 (1962); Akron v. Hardgrove Enterprises, Inc., 47 Ohio App.2d 196, 353 N.E.2d 628, 1 Ohio Op.3d 275 (1973); Washington State Bar Ass'n v. Great Western Union Savings and Loan Ass'n, 91 Wash.2d 48, 586 P.2d 870 (1978).

The right of parties to appear on their own behalf in the courts of this State is firmly rooted in our state constitution. In State v. Blosser, 158 W.Va. 164, 207 S.E.2d 186 (1974), this Court recognized that the right to assistance of counsel guaranteed to persons accused of crimes by West Virginia Constitution art. III, § 14 contained the correlative right of self-representation in criminal proceedings. In Syllabus point 2, this Court held that:

An accused may represent himself in a criminal proceeding, but the election to do so must be predicated upon an intelligent and understanding waiver by the accused of the fundamental right to effective assistance of counsel upon a full and fair disclosure and explanation by the trial court of the constitutional right to counsel.

The following year, the United States Supreme Court similarly held that, under the sixth amendment of the federal constitution, applicable to the states by the fourteenth amendment, defendants in state criminal prosecutions had an independent right to defend themselves without assistance of counsel. Faretta v. California, supra; see also Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942) ("[T]he Constitution does not force a lawyer upon a defendant."); Osborn v. Bank of the United States, 22 (9 Wheat.) U.S. 738, 829, 6 L.Ed. 204, 226 (1824) ("Natural persons may appear in court, either by themselves or by their attorney."). 2

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The right, claimed by the petitioner herein, to act as her own attorney in civil proceedings, although derived from a different source, stands on equal footing with the parallel right accorded the criminally accused under West Virginia Constitution art. III, § 14. West Virginia Constitution art. III, § 17 provides, in pertinent part, that, "The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law...."

This provision "contemplates that every person ... shall have recourse to the courts to seek redress of his injuries." Pittsburgh Elevator Company v. Board of [174 W.Va. 252] Regents, 310 S.E.2d 675, 686 (W.Va.1983). 3 This constitutional right of access to the courts is not limited to those persons able and willing to employ an attorney. Litigants who, by choice or necessity, seek to advocate their own cause cannot be denied this fundamental right. As observed by another court, "the right to self-representation embodies one of the most cherished ideals of our culture; the right of an individual to determine his own destiny." People v. McIntyre, 36 N.Y.2d 10, 324 N.E.2d 322, 325, 364 N.Y.S.2d 837, 842 (1974). "Like most fundamental freedoms, the right to proceed pro se derives from the belief that respect for human dignity is best served by respect for individual freedom of choice." Soto v. United States, 369 F.Supp. 232, 235-36 (E.D.Pa.1973), aff'd 504 F.2d 1339 (3rd Cir.1974).

The inherent right of self-autonomy over one's causes has previously been recognized by this Court in reference to civil proceedings. In West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959), we stated that "natural persons may manage, prosecute, or defend their own actions, suits and proceedings and defend prosecutions against themselves except when the public welfare demands...

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36 practice notes
  • Estate of Jones v. City of Martinsburg (In re Estate of Jones), No. 18-0927
    • United States
    • Supreme Court of West Virginia
    • October 30, 2020
    ...at 396 (internal citation and quotation omitted)Dreyfuse, ___ W. Va. at ___, 842 S.E.2d at 751 (quoting, in part, Blair v. Maynard, 174 W. Va. 247, 253, 324 S.E.2d 391, 396 (1984)) (emphasis added.). In short, pursuant to our case law, the petitioner should have been given a Dreyfuse hearin......
  • Daye v. Plumley, No. 13-0913
    • United States
    • Supreme Court of West Virginia
    • April 4, 2014
    ...or unreasonably denied." Syl. Pt. 2, Cottrill v. Cottrill, 219 W.Va. 51, 631 S.E.2d 609 (2006) citing Syl. Pt. 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984). Indeed, the fundamental right of self-representation may not be denied without a clear showing in the record that the pro......
  • Tabb v. Jefferson Cnty. Comm'n, No. 17-0095
    • United States
    • Supreme Court of West Virginia
    • March 23, 2018
    ...in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably denied." Syllabus Point 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984).4. "The fundamental right of self-representation recognized in West Virginia Constitution art. III, § 17 may not be denie......
  • WV DHHR EMPLOYEES FEDERAL CU v. Tennant, No. 31506.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2004
    ...worse, planting an error and nurturing the seed as a guarantee against a bad result)." This Court further stated in Blair v. Maynard, 174 W.Va. 247, 253, 324 S.E.2d 391, 396 Of course, the court must not overlook the rules to the prejudice of any party. The court should strive, however, to ......
  • Request a trial to view additional results
36 cases
  • Estate of Jones v. City of Martinsburg (In re Estate of Jones), No. 18-0927
    • United States
    • Supreme Court of West Virginia
    • October 30, 2020
    ...at 396 (internal citation and quotation omitted)Dreyfuse, ___ W. Va. at ___, 842 S.E.2d at 751 (quoting, in part, Blair v. Maynard, 174 W. Va. 247, 253, 324 S.E.2d 391, 396 (1984)) (emphasis added.). In short, pursuant to our case law, the petitioner should have been given a Dreyfuse hearin......
  • Daye v. Plumley, No. 13-0913
    • United States
    • Supreme Court of West Virginia
    • April 4, 2014
    ...or unreasonably denied." Syl. Pt. 2, Cottrill v. Cottrill, 219 W.Va. 51, 631 S.E.2d 609 (2006) citing Syl. Pt. 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984). Indeed, the fundamental right of self-representation may not be denied without a clear showing in the record that the pro......
  • Tabb v. Jefferson Cnty. Comm'n, No. 17-0095
    • United States
    • Supreme Court of West Virginia
    • March 23, 2018
    ...in civil proceedings is a fundamental right which cannot be arbitrarily or unreasonably denied." Syllabus Point 1, Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984).4. "The fundamental right of self-representation recognized in West Virginia Constitution art. III, § 17 may not be denie......
  • WV DHHR EMPLOYEES FEDERAL CU v. Tennant, No. 31506.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2004
    ...worse, planting an error and nurturing the seed as a guarantee against a bad result)." This Court further stated in Blair v. Maynard, 174 W.Va. 247, 253, 324 S.E.2d 391, 396 Of course, the court must not overlook the rules to the prejudice of any party. The court should strive, however, to ......
  • Request a trial to view additional results

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