Hubby v. Carpenter

• Decision Date: 14 November 1986
• Docket Number: No. 17165,17165
• Citation: 177 W.Va. 78,350 S.E.2d 706
• Parties: Robert Nielsen HUBBY, Jr. v. James CARPENTER, Mayor and Municipal Judge for City of Buckhannon, etc.
• Court: West Virginia Supreme Court

Page 706

350 S.E.2d 706

177 W.Va. 78

Robert Nielsen HUBBY, Jr. v. James CARPENTER, Mayor and Municipal Judge for City of

Buckhannon, etc.

No. 17165.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 9, 1986.

Decided Nov. 14, 1986.

Syllabus by the Court

1. "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." Syllabus, Champ v. McGhee, 165 W.Va. 567, 270 S.E.2d 445 (1980).

2. "The due process clause of Article III, § 10 of the Constitution of West Virginia prohibits a municipal court judge from dismissing municipal charges solely because the accused has exercised his constitutional right to a jury trial, when the penalty under state law for the same offense carries a heavier jail sentence than provided for by municipal ordinance." Syllabus Point 2, Scott v. McGhee, --- W.Va. ----, 324 S.E.2d 710 (1984).

3. In the absence of special circumstances, the doctrine of the separation of powers is not applicable to municipalities.

Daniel J. Post, Buckhannon, for petitioner.

David W. McCauley, Coleman & Wallace, Buckhannon, for respondent.

MILLER, Chief Justice:

This original proceeding in prohibition challenges the validity of W.Va. Code, 8-10-1, ¹ which vests mayors with the authority to hear and determine violations of municipal ordinances, on the basis that it contravenes the separation of powers clause, ARTICLE V, SECTION 1 OF THE WEST VIRGINIA CONSTITUTION².

In April, 1986, the relator, Robert Nielsen Hubby, Jr., was arrested on a charge of contributing to the delinquency of a minor and was taken before James Carpenter, the mayor of the City of Buckhannon, who had previously issued the arrest warrant, and a hearing date was set. According to the respondent mayor, contributing to the delinquency of a minor is prohibited by Article 3 of Ordinance No. 100 of the City of Buckhannon. The relator then petitioned this Court for a writ of prohibition seeking to prevent the mayor from conducting the misdemeanor proceeding.

Section 8 of the Charter of the City of Buckhannon entitled "Legislative Department: Duties" vests the legislative power of the city in the city council composed of the mayor, the city recorder, and five councilmen. Section 10 of the Charter provides that the mayor shall preside over city council meetings, and Section 18 provides that the judicial power of the city shall be vested in a police court of which the mayor shall be the judge. ³

In the past, most challenges to municipal court procedures have been based on due process grounds or a constitutional provision specifically applicable to criminal proceedings. In Champ v. McGhee, 165 W.Va. 567, 270 S.E.2d 445 (1980), this Court invalidated a Bluefield municipal ordinance which prohibited jury trials in municipal courts and held in its single Syllabus:

"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." ⁴

The Court also recognized in Champ that defendants in municipal court are entitled to a twelve-person jury, although in magistrate court they would only be entitled to a six-person jury under Article VIII, Section 10 of the West Virginia Constitution. ⁵

Four years later in a case arising out of the same municipal court, we held in Scott v. McGhee, --- W.Va. ----, 324 S.E.2d 710 (1984), that the due process clause of our Constitution prohibits a municipal court judge in certain circumstances from dismissing municipal charges solely because the defendant exercised his right to a jury trial. In granting a writ of prohibition to prevent dismissal of the municipal charges, we held in Syllabus Point 2:

"The due process clause of Article III, § 10 of the Constitution of West Virginia prohibits a municipal court judge from dismissing municipal charges solely because the accused has exercised his constitutional right to a jury trial, when the penalty under state law for the same offense carries a heavier jail sentence than provided for by municipal ordinance."

The right to counsel, as guaranteed by both the United States Constitution ⁶ and the West Virginia Constitution, was extended in Bullett v. Staggs, 162 W.Va. 199, 250 S.E.2d 38 (1978), to criminal trials in municipal courts as reflected by Syllabus Point 1: "Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." We also ruled in Bullett that circuit courts under W.Va. Code, 51-11-5, have the authority to appoint counsel for an indigent charged with a municipal ordinance violation.

The legislature has afforded persons convicted of municipal ordinance violations with an appeal de novo to the circuit court. W.Va. Code, 8-34-1. ⁷ In State v. Eden, 163 W.Va. 370, 256 S.E.2d 868 (1979), we held that our due process clause prohibits the imposition of a heavier penalty upon a defendant who exercises his right of appeal from magistrate court. In State v. Bonham, --- W.Va. ----, 317 S.E.2d 501 (1984), we reaffirmed and extended this principle to appeals from municipal courts, stating in Syllabus Point 2:

"A defendant who is convicted of an offense in a trial before a magistrate or in municipal court and exercises his statutory right to obtain a trial de novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence. W.Va. Const. art. III, § 10."

In Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), a municipal court judge was held to be subject to the due process guarantee that a judicial tribunal be neutral and detached. There, the United States Supreme Court found that a defendant was denied due process because he had been compelled to stand trial in a mayor's court, which provided a substantial portion of the village revenues. It was also shown that the mayor had substantial executive powers with regard to administering the affairs of the municipality. ⁸

The Supreme Court's decision in Ward was a logical outgrowth of its earlier decision in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). In Tumey, the defendant was convicted of violating the prohibition law before the mayor of a small town in Ohio, whose regular salary was supplemented by the fees and costs he levied against persons he found to have violated municipal ordinances. The Supreme Court held the convictions violated due process, because the judge had "a direct, personal, substantial pecuniary interest in reaching a conclusion against him [the defendant] in his case." 273 U.S. at 523, 47 S.Ct. at 441, 71 L.Ed. at 754.

We have adopted the principles of Ward and Tumey and have sustained due process challenges to our former justice of the peace system based upon the concept that the pecuniary interest of the justice of the peace disqualified him from trying the case. ⁹ In Keith v. Gerber, 156 W.Va. 787, 197 S.E.2d 310 (1973), we granted a writ of prohibition preventing the mayor of the City of St. Marys from trying the accused on a traffic offense. There the mayor, in addition to a $300 yearly salary, received five dollars in compensation for each conviction obtained in his court. We stated in Syllabus Point 1: "Where a judge has a pecuniary interest in any case to be tried by him he is disqualified from trying the case, and prohibition is the proper remedy to restrain such trial." ¹⁰

In his response to the rule to show cause in this case, the respondent mayor asserts that he is not disqualified under Ward, because the City of Buckhannon realizes only a tiny fraction of its revenues from fines levied in the mayor's court. He included a chart showing the city's revenues during the past two fiscal years which indicated that the fines imposed in the mayor's court constituted less than one percent of the City's total revenues. In Ward, the mayor's court over a five-year period generated some forty percent of village revenues. It would appear that the Ward Court intimated that at some minimal level of collective fines due process would not be violated because their influence on the municipal court's decision-making process would be insubstantial. We agree with the respondent mayor that given the minor amount of municipal revenues derived from the mayor's court, a due process violation has not been shown. ¹¹

With these procedural safeguards as a backdrop, we address the relator's separation of powers argument. We begin by observing that Article VIII, Section 11 of the West Virginia Constitution authorizes the legislature to establish municipal, police, or mayor's courts and to specify the method by which such judges shall be selected. This section also prohibits the judges from receiving compensation on a fee basis. ¹² As indicated earlier, the legislature by virtue of W.Va. Code, 8-10-1, has vested mayors of municipalities with the judicial power to hear municipal law violations. ¹³

We have found only one case that addresses the precise separation of powers question presented here. In Poynter v. Walling, 54 Del. 409, 177 A.2d 641 (1962), the claim was made that a municipal court judge who was the mayor could not sit because of the separation of powers bar. The court held that the constitutional requirement that the three departments of government be separate "applies to state government and not to the government of municipal corporations and their officers." 54 Del. at 415, 177 A.2d at 645. This holding is in accord with the general rule that the separation of powers doctrine applies to state government and state officers and ordinarily does not extend to the government of municipal corporations. Sarlls v. State ex rel. Trimble, 201 Ind. 88, 166 N.E. 270 (1...