Borchert, Application of
| Citation | 359 P.2d 789,57 Wn.2d 719 |
| Decision Date | 16 February 1961 |
| Docket Number | No. 35379,35379 |
| Parties | Application of Richard N. BORCHERT for a Writ of Habeas Corpus. |
| Court | United States State Supreme Court of Washington |
Charles O. Carroll, Pros. Atty., Hugh R. McGough, Robert E. Dixon, Deputy Pros. Attys., Seattle, for appellant.
Henry Opendack, Irving C. Paul, Jr., Seattle, for respondent.
Richard N. Borchert, while driving an automobile outside of an incorporated city or town in King county, was arrested for driving a motor vehicle while under the influence of intoxicating liquor, reckless driving, and operating a motor vehicle without a valid operator's license. The venue was laid, as provided by law, in the justice court nearest to the point of the alleged violation. Upon arraignment before the unsalaried justice of the peace, defendant challenged the jurisdiction of the court upon the ground that RCW 3.16.070, which fixes the compensation of justices of the peace on a fee basis, was unconstitutional, in that it denied him due process of law, in violation of the fourteenth amendment to the United States constitution.
Prior to ruling on the motion, the justice of the peace advised defendant's counsel that she would grant a change of venue to a salaried judge at the county seat. The change of venue was refused, and the motion to dismiss was denied. The case regularly proceeded to trial.
Defendant was found guilty of driving while under the influence of intoxicating liquor, and of operating a motor vehicle without a valid operator's license. He sought a writ of habeas corpus before the superior court for King county. Petitioner contended that the fee justice lacked jurisdiction to try the case, for the reason that the justice was prejudiced against him due to the fact that the compensation of the justice was not upon a fixed salary, but upon a schedule of fees fixed by the legislature. The superior court granted the writ. The state has appealed.
The appeal presents a single question: Does RCW 3.16.070, which provides a schedule of fees to compensate unsalaried justices of the peace, violate the due process provision of the fourteenth amendment to the United States constitution?
Art. IV, § 1, of our state constitution, provides:
'The judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide.'
Art. IV, § 10, amendment 28, provides in part:
'The legislature * * * shall prescribe by law the powers, duties and jurisdiction of justices of the peace: * * * In corporated cities or towns having more than five thousand inhabitants, the justices of the peace shall receive such salary as may be provided by law, and shall receive no fees for their own use.'
Art. IV, § 13, provides in part:
'No judicial officer, except * * * unsalaried justices of the peace, shall receive to his own use any fees or perquisites of office. * * *' (Italics ours.)
RCW 3.16.070 provides the schedule of fees to compensate unsalaried justices of the peace, as authorized by Art. IV, § 13, of the state constitution.
Salaried and unsalaried justices of the peace in the state of Washington are constitutional officers. The constitution requires that justices of the peace in cities of more than five thousand inhabitants be salaried, and authorizes the legislature to compensate unsalaried justices of the peace upon a fee basis. The legislature, in the exercise of its discretion (as authorized by the constitution), has by law established the office of an unsalaried justice of the peace, and determined by RCW 3.16.070 the schedule of fees which such justices shall receive as compensation.
From the cited sections, we conclude that justice courts in the state of Washington which are presided over by unsalaried justices of the peace are constitutional tribunals, and that the compensation fee schedule provided by RCW 3.16.070 is authorized by, and in conformity with, the state constitution.
Does Art. IV, § 13, of the state constitution, which authorizes the establishment of an unsalaried justice court system, violate the due process clause of the fourteenth amendment to the United States constitution?
Respondent asserts that such courts are unconstitutional because their presiding officers are inherently biased against an accused person. We do not agree.
For a judge to be biased or prejudiced against a person's cause is to have a preconceived adverse opinion with reference to it, without just grounds or before sufficient knowledge. It is a particular person's state of mind that affects his opinion or judgment. Bias or prejudice on the part of an elected judicial officer is never presumed. Barbee Mill Co. v. State, 1953, 43 Wash.2d 353, 261 P.2d 418. When it is asserted to exist, the legislature has provided an accused person an absolute right to a change of venue to another judge.
In the instant case, respondent asserts that prejudice is 'inherent' in the system due to the fact that the justice's compensation is on a fee basis. The system, however, provides for both salaried and unsalaried justices of the peace, who have concurrent jurisdiction of the offense and who were available in this case. The respondent, if he believed the fee justice to be prejudiced against him, had an absolute right to a change of venue to a salaried judge, without cost to the accused. The respondent was represented by an attorney. The venue which provided the forum for the respondent's trial was not challenged. Jurisdiction alone was attacked upon the ground of bias or prejudice. Bias or prejudice may affect or disqualify a particular forum or venue of trial. Bias or prejudice of a judicial officer does not, however, affect jurisdiction.
We conclude that the contention of the respondent is without merit for the reason that the fee justice court, which forms a part of our justice court judicial system, had jurisdiction to try the respondent, and that the alleged bias or prejudice of the fee justice affected only the venue or the forum of the trial, which venue or forum was not challenged.
The trial court, in striking down RCW 3.16.070 as violative of the fourteenth amendment to the United States constitution, relied upon the case of Tumey v. State of Ohio, 1927, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. In that case, the accused was charged in the 'liquor court' of North College Hill, Ohio, with illegal possession of liquor. The court was established by a village ordinance, and presided over by the village mayor. Unless the mayor found the accused guilty, he received no compensation for the performance of his judicial duties. The ordinance did not provide for a trial by jury, there could be no change of venue, and the right of appeal was limited to questions of law. The United States supreme court struck down the ordinance establishing the tribunal under the Ohio law, upon the ground that the judicial system created thereby, and under which Tumey was tried, violated the fourteenth amendment, in that it denied him procedural due process.
The following comparison between the village ordinance which was struck down and the existing Washington law shows the procedural safeguards afforded an accused person in this state. Village ordinance authorized by Ohio law.
(1) Fee justices not authorized by Ohio state constitution.
(2) Justices' compensation entirely dependent upon conviction.
(3) No right to a jury trial.
(4) No right to change of venue.
(5) Limited right of appellate review confined to questions of law only.
Washington law.
(1) Fee justices authorized by Art. IV, § 13, state constitution.
(2) Compensation by county regardless of result. RCW 10.46.210.
(3) Right to a jury trial. RCW 10.04.050.
(4) Change of venue guaranteed, costs to abide the result of the suit. RCW 3.20.100, 3.20.131.
(5) Right of appeal to superior court and trial de novo, which renders justice court action null and void. RCW 10.10.010.
Legislation establishing fee justice courts in other jurisdictions, which contains only a portion of our legislative safeguards against possible bias or prejudice, has been upheld in the following jurisdictions: Hill v. State, 1927, 174 Ark. 886, 298 S.W. 321; Brooks v. Town of Potomac, 1928, 149 Va. 427, 141 S.E. 249; Richardson v. State, 1928, 109 Tex.Crim.R. 148, 4 S.W.2d 79; Ex parte Lewis, 1930, 47 Okl.Cr. 72, 288 P. 354; State of Indiana v. Schelton, 1933, 205 Ind. 416, 186 N.E. 772; State v. Gonzales, 1939, 43 N.M. 498, 95 P.2d 673; Gavagan v. Marshall, 1948, 160 Fla. 154, 33 So.2d 862.
The respondent cites no cases in this, or any jurisdiction in the United States, where a fee justice court having safeguards against possible bias or prejudice of a justice of the peace, similar to those provided by the laws of the state of Washington, has been struck down by the United States supreme court as violative of the fourteenth amendment to the United States constitution. We have found none.
An accused person arraigned before an unsalaried justice of the peace has, under existing Washington law, the procedural safeguards set forth above against the possible bias or prejudice of the unsalaried justice. The exercise of these statutory safeguards against such a possibility of prejudice affords an accused person the due process of law required by the fourteenth amendment to the United States constitution. In the light of the salient distinguishing features between the village ordinance authorized by Ohio law and the Washington law authorized by our state constitution, the Tumey case is not controlling. See Dugan v. State of Ohio, 1928, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784; Bevan v. Krieger, 1933, 289 U.S. 459, 53 S.Ct. 661, 77 L.Ed. 1316.
We conclude that RCW 3.16.070 is not violative of the due process provision of the fourteenth amendment to the United States constitution.
Was respondent afforded such due process of law in the instant case? The superior court judge,...
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