Farber v. Douglas

• Decision Date: 18 December 1985
• Docket Number: No. 16886,16886
• Parties: Michael C. FARBER v. James Wilson DOUGLAS, Prosecuting Attorney of Braxton County, West Virginia, and Danny O. Cline, Judge of the Circuit Court of Braxton County, West Virginia.
• Court: West Virginia Supreme Court

Page 456

361 S.E.2d 456

178 W.Va. 491

Michael C. FARBER v. James Wilson DOUGLAS, Prosecuting Attorney of Braxton

County, West Virginia, and Danny O. Cline, Judge

of the Circuit Court of Braxton County,

West Virginia.

No. 16886.

Supreme Court of Appeals of

West Virginia.

Dec. 18, 1985.

Statement of Justice McGraw

Oct. 19, 1987.

Syllabus by the Court

1. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

2. It is generally held that a prosecutor is disqualified from acting in a criminal proceeding where he has a personal or pecuniary interest in the proceeding that conflicts with his duties as a public prosecutor.

3. "A 'lawfully administered' oath or affirmation is an essential element of the crimes of perjury, W.Va.Code, 61-5-1 [1931], and false swearing, W.Va.Code, 61-5-2 [1931]; and a 'lawfully administered' oath or affirmation, as that phrase is used in W.Va.Code, 61-5-1 [1931], and W.Va.Code, 61-5-2 [1931], is an oath or affirmation authorized by law and taken before or administered by a tribunal, officer or person authorized by law to administer such oaths or affirmations." Syllabus Point 1, State v. Wade, 174 W.Va. 381, 327 S.E.2d 142 (1985).

4. In order to support a charge of false swearing under W.Va.Code, 61-5-2, the person administering the oath or affirmation must be qualified to do so and the sworn testimony, document, or affidavit must be authorized by law to be rendered under an oath or affirmation.

Dan L. Hardway, Quarrier & Dunbar Sts., Charleston, for petitioner.

Silas B. Taylor, Deputy Atty. Gen., Charleston, for respondent James Wilson Douglas.

Danny O. Cline, pro se.

MILLER, Chief Justice:

In this original prohibition action, we are asked to prohibit the circuit court judge and the prosecuting attorney of Braxton County from taking any action against Michael Farber, the relator, based upon a two-count false swearing indictment recently returned by a Braxton County grand jury against the relator.

Two grounds are asserted for the prohibition. First, the prosecutor should have disqualified himself as a matter of law from seeking this indictment because he has a direct interest in the criminal charge, which arose out of a civil action in which he was a party. The underlying civil action, which was filed by the relator as the attorney representing a group of taxpayers, involved, in part, the propriety of the prosecutor's actions in relocating his law office into a building purchased by the Braxton County Commission. Second, the charge of false swearing should be declared void as a matter of law. We conclude the indictment must be dismissed as a matter of law for both reasons asserted and award the writ of prohibition.

The respondent prosecutor, who is represented by the attorney general, does not address the merits of the prohibition claim, but challenges the relator's right to prohibition in this Court because he could have filed for similar relief in the Circuit Court of Braxton County. The respondent judge has filed a pro se response in which he asserts that he is without knowledge of the underlying facts and, therefore, takes a neutral position.

In addressing the respondent prosecutor's claim that prohibition in this Court is improper, we find the argument lacks merit under Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979):

"In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance."

Hinkle involved a situation where the relator claimed the trial court had abused its powers whereas here we have a claim that the prosecutor acted beyond his jurisdiction by seeking an indictment when he should have disqualified himself.

Furthermore, we have utilized prohibition to control the actions of prosecutors where they have acted improperly in performing their official duties. In State ex rel. Miller v. Smith, 168 W.Va. 745, 285 S.E.2d 500 (1981), we granted a writ of prohibition to prevent a prosecutor from improperly influencing a grand jury. ¹ A writ of prohibition was also granted in State ex rel. Moran v. Ziegler, 161 W.Va. 609, 244 S.E.2d 550 (1978), to prevent a private prosecutor from assisting the public prosecutor when it appeared that he had had prior consultations with the defendant concerning the same offense. Cf. State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974). Therefore, if we find that the prosecutor should have disqualified himself from seeking the false swearing indictment against the relator, prohibition would be an appropriate remedy for this usurpation of judicial power.

The substantive issue in the present case is whether a public prosecutor is foreclosed from pursuing a criminal prosecution in a case in which he has a direct interest and is personally implicated. Here the prosecutor was a named party to the underlying civil suit filed by the relator against the county commissioners. The object of that civil action brought by certain taxpayers was to remove the commissioners on the theory that they had acted improperly in the purchase of a building into which the prosecutor's offices were relocated. Even though the prosecutor was dropped as a named party under an agreement that he would not represent the county commissioners, we do not believe this action removed his interest since his law office arrangement with the commissioners was part of the subject matter of the underlying civil litigation.

Furthermore, the actual event leading to the indictment was a motion by the relator to have the judge who presided in the civil action to disqualify himself insofar as he had jurisdiction to reconsider his earlier decision not to appoint a special prosecutor to investigate the conduct of the prosecutor. Specifically, the taxpayers alleged that the prosecutor offered something of value to a county commissioner to influence his vote on the purchase of the building, in violation of W.Va.Code, 61-10-15 and gave false testimony under oath, in violation of W.Va.Code, 61-5-2.

The relator, as the attorney representing the taxpayers, executed an affidavit sworn before a notary public in connection with his motion to disqualify in which he stated the motion was made in good faith and there were "ample facts of record" to support the allegations made in the motion. ² The false swearing indictment was based upon this sworn affidavit. Thus, we are presented with a situation where a prosecutor who has been charged by a group of taxpayers with allegedly committing certain criminal acts subsequently seeks a false swearing indictment against the taxpayers' attorney who executed a sworn affidavit attached to the motion in which the allegations were made.

We have often discussed the obligations of a public prosecutor in serving the interests of the State as well as the defendant. In Britton, 157 W.Va. at 715-16, 203 S.E.2d at 466, we elaborated on this issue:

"A prosecutor's duty as a public officer is to serve the interest of the State in securing convictions of those who violate the laws of this organized society. On a concomitant parity with the former duty is the duty that a prosecutor must conduct his office always to insure justice for those subjected to prosecution. Consequently, a prosecutor's duty to the accused is fairness. Though the public interest demands that a prosecution be conducted with energy, skill and zealousness, the State's attorney should see that no unfair advantage is taken of the accused. 'It is as much the prosecutor's duty to see that a person on trial is not deprived of any of his statutory or constitutional rights as it is to prosecute him for the crime with which he may be charged.' 63 Am.Jur.2d Prosecuting Attorneys § 27 (1972); See also, 27 C.J.S., District and Prosecuting Attorneys § 12 (1972 Supp.)."

See also, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984); State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 (1984); State ex rel. Skinner v. Dostert, 166 W.Va. 743, 278 S.E.2d 624 (1981); State ex rel. Moran v. Ziegler, supra. The prosecutor in Britton had previously consulted with the defendant concerning the crime with which he was subsequently charged. We held that the prosecutor had an obligation to recuse himself from the case in order to protect the due process rights of the defendant.

In Syllabus Point 3 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), we made this comment on the duties of a public prosecutor:

"The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the...