Manning v. Inge

• Decision Date: 05 March 1982
• Docket Number: No. CC926,CC926
• Citation: 288 S.E.2d 178,169 W.Va. 430
• Court: West Virginia Supreme Court
• Parties: Jack MANNING, Sheriff of Fayette County v. Dillard INGE, Magistrate of Fayette County, Ruth Dodd, Clerk of the Magistrate Court of Fayette County, and Kenneth Hawver.

Page 178

288 S.E.2d 178

169 W.Va. 430

Jack MANNING, Sheriff of Fayette County v. Dillard INGE, Magistrate of Fayette County, Ruth Dodd, Clerk of the Magistrate Court of Fayette County, and Kenneth Hawver.

No. CC926.

Supreme Court of Appeals of West Virginia.

March 5, 1982.

Syllabus by the Court

1. The State is a party to a criminal proceeding for the purposes of W.Va.Code, 50-4-7 [1978], and the prosecuting attorney may file an affidavit alleging that a magistrate before whom the criminal proceeding is pending has a personal bias or prejudice either against the State or in favor of the defendant or that he has counseled with the defendant respecting the merits of the proceeding.

2. The discretionary decision to move for the disqualification of a magistrate under W.Va.Code, 50-4-7 [1978], ultimately rests with the prosecuting attorney as the State's official representative in a criminal case. The exercise of that discretion must be properly evidenced by the execution of an affidavit by the prosecuting attorney.

3. "One is in jeopardy when he has been placed on trial on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded and a jury has been impaneled and sworn." Syl. pt. 1, Adkins v. Leverette, W.Va., 264 S.E.2d 154 (1980).

4. Jeopardy attaches in a non-jury trial in a magistrate court which is exercising proper jurisdiction when the accused has been charged in a valid warrant and has entered a plea and the magistrate has begun to hear evidence.

Paul M. Blake, Jr., Fayetteville, for plaintiff.

Hamilton & Mooney and Kevin B. Burgess, Fayetteville, for defendants.

McHUGH, Justice:

This action is before this Court upon certified questions from the Circuit Court of Fayette County, West Virginia, and a May 21, 1981, order of that court which remanded the underlying criminal action in this case to the Magistrate Court of Fayette County for disposition on the merits. The certified questions were docketed by this Court by order entered September 8, 1981. ¹ The facts from which the certified questions arise are undisputed.

On December 4, 1980, Deputy D. E. Brown of the Fayette County Sheriff's Office filed an information for an arrest warrant with Magistrate Dillard Inge. The information filed by the deputy alleged that Kenneth Hawver had sold beer without a license to do so. Magistrate Inge issued a warrant for Hawver's arrest. A hearing on the charge was scheduled for December 12, 1980, in magistrate court. The State was granted a continuance until December 29, 1980.

On December 22, 1980, Deputy Brown filed an affidavit of prejudice against Magistrate Inge. The affidavit alleged that Magistrate Inge had counseled with the defendant Hawver's attorney about the merits of the case and was prejudiced against Deputy Brown. The affidavit was executed on a form provided by this Court. It was signed by Deputy Brown. Upon receiving the affidavit Magistrate Inge informed Deputy Brown, and the prosecuting attorney's office, that he would hear argument on the affidavit prior to the trial of Hawver's case on December 29, 1980.

The defendant, Hawver, appeared before Magistrate Inge as scheduled. The State, however, failed to appear at the hearing. The Magistrate found the defendant not guilty of the crime with which he was charged.

The following day, December 30, 1980, the Sheriff of Fayette County, Jack Manning, filed a petition for a writ of prohibition in the Circuit Court of Fayette County. The circuit court issued the writ on the same day and heard argument on it on January 6, 1981. On May 21, 1981, the circuit court held that the affidavit of prejudice was proper and the filing of the affidavit had the effect of barring further proceedings by Magistrate Inge. Consequently, the circuit court held that Magistrate Inge's judgment entered on December 29, 1980, after the filing of the affidavit, was void.

The circuit court also certified three questions to this court on May 21, 1981. The questions were certified upon joint application of the parties to the prohibition action.

I. WHETHER THE STATE OF WEST VIRGINIA IS ENTITLED TO FILE AN

AFFIDAVIT UNDER § 50-4-7 OF THE CODE OF WEST VIRGINIA

AS AMENDED, FOR REMOVAL OF A CASE FOR

BIAS OR PREJUDICE OF A MAGISTRATE?

We answer this question in the affirmative. W.Va.Code, 50-4-7 [1978], provides, in part:

Any party to a civil or criminal proceeding before a magistrate in any county wherein there is more than one magistrate may file an affidavit that the magistrate before whom the matter is pending has a personal bias or prejudice either against him or in favor of any opposite party or that such magistrate has counseled with any opposite party with respect to the merits of the proceeding. The affidavit shall state the facts and reasons for belief in the truth thereof. Such affidavit must be filed at least two days before the trial or hearing date unless the grounds for such affidavit are not discovered until after such time. The supreme court of appeals shall provide a form affidavit which shall be made available to all parties and which shall comply with the requirements of this section.

The Sheriff argues that the affidavit filed by Deputy Brown on December 22, 1980, met the procedural requirements of the above quoted statute. The affidavit was on a form provided by this Court. ² The Sheriff argues that the use of the term "any party" in W.Va.Code, 50-4-7 [1978], indicates an intent on the part of the Legislature in enacting the statute to allow the State to file such an affidavit in a criminal case.

The magistrate admits the attractiveness of the Sheriff's argument but says that it is superficial and over simplified. Citing State v. Critzer, W.Va., 280 S.E.2d 288 (1981), the magistrate argues that, due to the State's official role in the criminal justice system, the State cannot be said to be an adversary party in a criminal action. He argues that the duty of the trial judge and the prosecutor is to insure a fair trial. From the positions and duties of those officials within the criminal justice system the magistrate would have us come to the conclusion that the State cannot be said to be a party in a criminal case.

An argument very similar to that advanced by Magistrate Inge was considered in State ex rel. Douglas v. Superior Court of Washington for King County, 121 Wash. 611, 209 P. 1097 (1922). In rejecting that argument the Supreme Court of Washington said:

It is contended by respondent that the statute is not intended to give this right to the prosecution, inasmuch as the state is representative both of the prosecution and the defendant, and the judge and the prosecuting attorney are simply officers to perform public functions. Theoretically, of course, the prosecuting attorney in his capacity as a public official represents the defendant, as well as the state, to the end that he should secure for the defendant any rights to which the latter may be justly entitled, and should endeavor to procure convictions only in cases where the law and evidence require such action. But in actual practice the trial of a criminal case does not differ materially from that of any other lawsuit. The defendant has his special counsel who can fully protect his rights, and who possesses no such tender consideration of the rights of the state, and if a prosecutor is going to perform his full duty he must, in the first instance, secure for the trial of the cause a judge and a jury who are impartial.... In the trial of a criminal cause the prosecuting attorney is the attorney for the public as represented by the state, and comes within the express language of the statute, and we believe within its intent. We conclude that an order of transfer should be made in a criminal case upon a proper showing of the prosecuting attorney.

209 P. at 1098. The statute in that case gave the right to "any party" to move for disqualification of a judge. Id.

Jurisdictions with statutes similar to W.Va.Code, 50-4-7 [1978], consistently hold that the State is a party to criminal proceedings for the purposes of the statute. See State ex rel. Brown v. Dewell, 131 Fla. 566, 179 So. 695 (1938); State v. Kraska, 294 Minn. 540, 201 N.W.2d 742 (1972); State ex rel. Tittmann v. Hay, 40 N.M. 370, 60 P.2d 353 (1936); State ex rel. Douglas v. Superior Court, supra. Other jurisdictions reach similar results on the basis of court rules or explicit statutes. See Peters v. Jamieson, 48 Hawaii 247, 397 P.2d 575 (1964); Allen v. Bach, 233 Ky. 501, 26 S.W.2d 43 (1930); Ex parte Howell, 273 Mo. 96, 200 S.W. 65 (1918); State ex rel. McNary v. Jones, 472 S.W.2d 637 (Mo.App.1971); State v. Brown, 8 Okla.Crim. 40, 126 P. 245 (1912).

The State represents the people and society in a criminal case. The State is as much entitled to an impartial judge as is the defendant. The goal of the criminal justice system is the determination of truth and the rendition of justice. Bias or prejudice against either party on the part of a judicial officer impairs that end. The State must be allowed to challenge a judicial officer who exhibits bias or partiality either against the State or for a defendant in a criminal case. Unless Code, 50-4-7 [1978], authorizes the filing of an affidavit of prejudice by the prosecuting attorney, there would be no method to remedy or prevent potential abuses of the criminal justice system which could result if a judicial officer is biased against the State or for the defendant in a criminal case. We, therefore, hold that the State is a party to a criminal proceeding for the purposes of W.Va.Code, 50-4-7 [1978], and the prosecuting attorney may file an affidavit alleging that a magistrate before whom the criminal proceeding is pending has a personal bias or prejudice either against the State or in favor of the defendant or that he has counseled with the defendant respecting the merits of the proceeding.

II. WHETHER THE AFFIDAVIT REQUIRED UNDER THE...