Champ v. McGhee, s. 14841

• Citation: 270 S.E.2d 445,165 W.Va. 567
• Decision Date: 23 September 1980
• Docket Number: 14946,Nos. 14841,s. 14841
• Parties: Carl S. CHAMP v. John R. McGHEE, Police Judge, etc. Gladys S. RADFORD v. John R. McGHEE, Police Judge, etc.
• Court: Supreme Court of West Virginia

Page 445

270 S.E.2d 445

165 W.Va. 567

Carl S. CHAMP v. John R. McGHEE, Police Judge, etc.

Gladys S. RADFORD v. John R. McGHEE, Police Judge, etc.

Nos. 14841, 14946.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1980.

Syllabus by the Court

Under art. 3, § 14 of the West Virginia Constitution, the right to a jury trial is accorded in both felonies and misdemeanors when the penalty imposed involves any period of incarceration.

William J. Akers, Michael F. Gibson, Princeton, for petitioners.

J. W. Feuchtenberger, Bluefield, for respondent.

NEELY, Chief Justice:

Carl S. Champ and Gladys S. Radford, in separate petitions for writs of prohibition that have been consolidated for decision, seek to prohibit prosecutions against them for their alleged violations of municipal ordinances of the City of Bluefield, until they are afforded a jury trial as provided by W.Va.Const., Art. III, § 14. Relators contend that § 60 of the Code of Ordinance, City of Bluefield, which provides that "no jury shall be allowed in any trial in said court for the violation of any ordinance of said city," is unconstitutional.

Carl S. Champ was arrested on 13 March 1980 and charged with violating two municipal ordinances which respectively prohibit appearing in a public place in a state of intoxication and driving under the influence of intoxicating liquor. Gladys S. Radford was arrested on 15 June 1980 and charged with: appearing in public in a state of intoxication; carrying a dangerous and deadly weapon; driving while under the influence of intoxicating liquor; and, failing to maintain control of her motor vehicle. The crimes with which relators are charged have sentences which include possible incarceration. Both relators requested a trial by jury which was denied under § 60 of the Code of Ordinance, City of Bluefield.

I

While the Federal Constitution allows no constitutional right to a jury for "petty offenses," Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), the West Virginia Constitution provides that a jury trial shall be granted in all trials of crimes and misdemeanors under art. 3, § 14. Our Court has established that our State Constitution may afford individuals a higher standard of protection than that available under the Federal Constitution. Adkins v. Leverette, W.Va., 239 S.E.2d 496 (1977). Our Court recently ruled in Hendershot v. Hendershot, W.Va., 263 S.E.2d 90, 95 (1980) that art. 3, § 14 prohibits imprisonment without a jury trial in criminal contempt proceedings because:

(I)t can be seen that from the time this State was formed, the framers of the West Virginia Constitutions, the Legislature, and this Court have been unanimous in the belief that under Article III, Section 14 of the West Virginia Constitution, the right to a jury trial is accorded in both felonies and misdemeanors where the penalty imposed involves any period of incarceration. ¹

Under art. 8, § 11 of the W.Va.Const., the Legislature may provide for the establishment of municipal courts in incorporated cities. Municipalities are empowered by the Legislature to pass municipal ordinances which are not contrary to the Constitution and laws of this State and "to prescribe reasonable penalties in the form of fines, forfeitures and imprisonment in the county jail or the place of imprisonment in such municipality, if there be one, for a term not exceeding thirty days." W.Va.Code, 8-11-1 (1976).

II

Respondent argued that the availability of a trial de novo in the circuit court satisfies the right to a jury trial since the accused may plead guilty or nolo contendere without participating in the trial process and demand an appealable sentence under W.Va. Code, 8-34-1 (1969). ² We find this a persuasive argument with regard to prosecutions without the possibility of a jail term or where the court indicates in advance that a conviction will not result in incarceration. However, the law is designed to protect against abusive and capricious action on the part of those in authority; it protects against the worst and not the best public servants. If it could be presumed that all municipal courts will be staffed by qualified, objective, and temperate judicial officers, the argument that a trial de novo in the circuit court with a jury satisfies the constitutional requirement might be well taken. But we can make no such assumption about the judiciaries of our municipalities, although in many cities the personnel are quite outstanding.

Mechanically, it is quite oppressive to appeal a jail sentence to the circuit court. ³ While a person might be willing to accept an outrageous fine because it would cost him more in terms of time and money to appeal than the fine is worth, almost no one would go to jail unjustly. Once a person is convicted of a misdemeanor and sentenced to jail, he must then post an appeal bond which, if cynically manipulated, can defeat his appeal. Although there are remedies available through habeas corpus to secure an indigent a recognizance bond, most indigents are ignorant of the process and will languish in jail for want of a surety. While a competent municipal court will always grant a recognizance bond to resident indigents, the municipal court which wishes to punish a defendant notwithstanding his right to appeal will find the bond technique most satisfactory.

III

This is not to say that a defendant cannot be sentenced to jail without a jury trial; it is to say, however, that any defendant in jeopardy of incarceration must affirmatively waive his right to a jury in writing before he may be tried and sent to jail without one. Similarly, if the judge signifies in advance of trial that the matter is exclusively administrative, such as a parking fine, and that notwithstanding provisions in the ordinance which permits a jail sentence, he will under no condition impose one, then the trial may proceed without a jury.

While violations of the public ordinances of municipalities are strictly criminal in nature since they are not private wrongs, Charleston v. Beller, 45 W.Va. 44, 30 S.E. 152 (1898), the bulk...