Harman v. Frye

• Decision Date: 15 December 1992
• Docket Number: No. 21233,21233
• Court: West Virginia Supreme Court
• Parties: David C. HARMAN, Magistrate for Mineral County, Petitioner, v. Honorable Andrew N. FRYE, Jr., Judge of the Twenty-First Judicial Circuit, Respondent.

Page 566

425 S.E.2d 566

188 W.Va. 611

David C. HARMAN, Magistrate for Mineral County, Petitioner, v. Honorable Andrew N. FRYE, Jr., Judge of the Twenty-First Judicial Circuit, Respondent.

No. 21233.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 8, 1992.

Decided Dec. 15, 1992.

Syllabus by the Court

1. Except where there is a specific statutory exception, a magistrate may not issue a warrant or summons for a misdemeanor or felony solely upon the complaint of a private citizen without a prior evaluation of the citizen's complaint by the prosecuting attorney or an investigation by the appropriate law enforcement agency. Following such evaluation by the prosecuting attorney or investigation by the appropriate law enforcement agency, the prosecuting attorney shall institute all necessary and proper proceedings before the magistrate, and, in suitable cases, law enforcement officers may obtain warrants and assist private citizens in obtaining the warrant or summons from the magistrate. To the extent In re Monroe, 174 W.Va. 401, 327 S.E.2d 163 (1985), is inconsistent with our holding in this case, it is overruled.

2. "By application to the circuit judge, whose duty is to insure access to the grand jury, any person may go to the grand jury to present a complaint to it. W.Va. Const. art. 3, § 17." Syl. pt. 1 State ex rel. Miller v. Smith, 168 W.Va. 745, 285 S.E.2d 500 (1981).

3. Criminal cases involving the issuance of cross-warrants must be prosecuted by the prosecuting attorney, who is charged with the duty under W.Va.Code, 7-4-1 [1971] of instituting and prosecuting all necessary and proper criminal proceedings against offenders, and, in cases where it would be improper for the prosecuting attorney or his assistants to act, by a competent attorney who is appointed to act under W.Va.Code, 7-7-8 [1987].

John M. Hedges, Charleston, for petitioner.

No appearance for respondent.

McHUGH, Chief Justice:

In this original proceeding in mandamus, David C. Harman, Magistrate of Mineral County, seeks to have this Court compel the Circuit Court of Mineral County to appoint a special prosecutor in a cross-warrant action involving private citizens' complaints. Magistrate Harman also requests in his petition that this Court modify Rule 3 of the Rules of Criminal Procedure for the Magistrate Courts of West Virginia, and declare that private citizen criminal complaints for both misdemeanor and felony cases be approved by an attorney for the state or investigated by the appropriate law enforcement agency before being presented to a magistrate for a probable cause determination.

I.

The facts underlying this original proceeding in mandamus involve the filing of cross-warrants for battery. Following a dispute, Jessie Sions filed a private citizen complaint against Randy Montgomery in the Magistrate Court of Mineral County, and an arrest warrant for battery was issued for Mr. Montgomery. Later, based on the same incident, Mr. Montgomery filed a private citizen complaint in magistrate court against Mr. Sions and, upon his complaint, an arrest warrant for battery was issued for Mr. Sions.

An investigation of the charges was conducted by the Mineral County Sheriff's Department at the request of the prosecuting attorney's office. The prosecuting attorney's office ultimately concluded, upon completion of the investigation and review of the sheriff department's written report, that both charges were potentially valid. The prosecuting attorney's office then sought a continuance in magistrate court so that a special prosecutor could be obtained to prosecute one of the cross-warrants because of the possible conflict the prosecuting attorney may face in dealing with both sides of the cross-warrants.

Subsequent to the prosecuting attorney's request that the circuit court appoint a special prosecutor, the circuit court entered an administrative order directing the magistrate to proceed on both criminal cases without a prosecuting attorney representing the state on either side. The magistrate then petitioned this Court for direction on how to proceed with these cross-warrants with no prosecuting attorney. This Court issued a rule against the respondent, the Honorable Andrew N. Frye, Jr., directing him to show cause why a peremptory writ of mandamus should not be awarded as prayed for in the petition.

Shortly after this Court issued a rule to show cause in this proceeding, a second administrative order was entered by the circuit court providing, among other things, that no magistrate of the Twenty-First Judicial Circuit shall issue any felony warrants upon a citizen complaint, "without first having the matter investigated by some law enforcement authority in the county involved." In response to this order, the magistrate again petitioned this Court to amend the petition for a peremptory writ and to also take action with regard to citizen complaints generally. This Court entered an order on June 24, 1992, amending the rule to show cause. An amicus brief was filed by William C. Forbes, prosecuting attorney for Kanawha County, on behalf of the State of West Virginia. An amicus brief was also filed by William J. Neal, Magistrate of Cabell County.

II. PRIVATE CITIZEN COMPLAINTS

This case presents this Court with the complex and troublesome issue of whether private citizens should be required to present a criminal complaint for both felony and misdemeanor cases to the prosecuting attorney ¹ or the appropriate law enforcement agency before the matter is presented to a magistrate for the issuance of a summons or complaint. The petitioner and the state, in its amicus brief, urge this Court to adopt a procedure requiring private citizens to first present criminal complaints to the prosecuting attorney or the appropriate law enforcement agency to determine if there is sufficient evidence to present the matter to the magistrate for a probable cause determination and the issuance of a warrant or summons. At the outset, we would like to emphasize that the term "private citizens" does not include law enforcement officers.

The filing of criminal complaints before a magistrate is governed by Rule 3 of the West Virginia Rules of Criminal Procedure, ² which provides: "Rule 3. The Complaint. The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate." The procedure for filing criminal complaints is also governed by Rule 3 of the Rules of Criminal Procedure for the Magistrate Courts of West Virginia:

Rule 3. Complaint. The complaint is a written statement of the essential facts constituting the offense charged. The complaint shall be presented to and sworn or affirmed before a magistrate, in the county where the offense is alleged to have occurred, by any person showing reason to have reliable information and belief. If from the facts stated in the complaint the magistrate finds probable cause, the complaint becomes the charging instrument initiating a criminal proceeding.

This Court has previously addressed the power of a private citizen to institute criminal proceedings before a magistrate under W.Va.R.Crim.P. 4(a). ³ In In re Monroe, 174 W.Va. 401, 327 S.E.2d 163 (1985), ⁴ we specifically disapproved of a procedure whereby the magistrate required a police investigation prior to a finding of probable cause and the issuance of an arrest warrant in felony cases. We recognized that "a police investigation is not a prerequisite to the issuance of an arrest warrant under W.Va.R.Crim.P. 4(a)[,]" and that "[a]lthough a police investigation may coincidentally be conducted, such an investigation does not provide the legal basis for a finding of probable cause." 174 W.Va. at 405, 327 S.E.2d at 167. We held in syllabus point 3:

The determination of whether probable cause exists to support the issuance of an arrest warrant under W.Va.R.Crim.P. 4 is solely a judicial function to be performed by the magistrate and is to be based upon the contents of 'the complaint, or from an affidavit or affidavits filed with the complaint.'

See also syl. pt. 3, In re Wharton, 175 W.Va. 348, 332 S.E.2d 650 (1985). ⁵

However, despite the disapproval we expressed in In re Monroe, the case before us has brought to our attention the misuse of the procedure allowing citizens to file criminal complaints without any investigation by the prosecuting attorney or the appropriate law enforcement agency, and the administrative disorder which has resulted therefrom. Therefore, notwithstanding our holding in In re Monroe, we deem it necessary to reevaluate the rule allowing private citizens to file criminal complaints for misdemeanors and felonies without any investigation by the prosecuting attorney or the appropriate law enforcement agency. As part of our analysis of the rule allowing citizens to file misdemeanor and felony complaints, we shall review the various procedures for filing criminal complaints followed on both the federal and state levels.

A. Federal Criminal Complaints

W.Va.R.Crim.P. 3 is the same as Rule 3 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 3 provides: "Rule 3. The Complaint. The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a magistrate."

On the federal level, because the prosecution of criminal cases is controlled by the United States in federal courts, there has been a great reluctance to allow private citizens to file a criminal complaint. Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir.1972) (in federal system, crimes are always prosecuted by federal government, not by private citizens); New York v. Muka, 440 F.Supp. 33 (N.D.N.Y.1977) (private citizen has no right to prosecute a federal crime); United States v. Bryson, 434 F.Supp. 986 (W.D.Okla.1977) (prosecution of criminal actions in federal courts is a matter solely within the discretion of ...