Markey v. Wachtel, s. 14504

• Citation: 264 S.E.2d 437,164 W.Va. 45
• Decision Date: 11 December 1979
• Docket Number: 14505,14479 and 14480,Nos. 14504,s. 14504
• Court: West Virginia Supreme Court
• Parties: Catherine MARKEY v. ANDREW S. WACHTEL, Director of Clinical Services, Spencer State Hospital. Leo TRIPLETT v. Kenneth CLARK, Director of Clinical Services, Huntington State Hospital. State of West Virginia In the Interest of C. F. H. In the Interest of G. T. M.

Page 437

264 S.E.2d 437

164 W.Va. 45

Catherine MARKEY v. ANDREW S. WACHTEL, Director of Clinical Services, Spencer

State Hospital.

Leo TRIPLETT v. Kenneth CLARK, Director of Clinical Services, Huntington

State Hospital.

State of West Virginia In the Interest of C. F. H.

In the Interest of G. T. M.

Nos. 14504, 14505, 14479 and 14480.

Supreme Court of Appeals of West Virginia.

Dec. 11, 1979.

Syllabus by the Court

1. Article III, Section 10 of the West Virginia Constitution cannot be interpreted to require a constitutional right to jury trial in a proceeding for the involuntary commitment of an adult to a mental health facility.

2. "Article VIII, Section 13 of the West Virginia Constitution and W.Va. Code, 2-1-1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law." Syllabus Point 2, Morningstar v. Black and Decker Manufacturing Co., W.Va., 253 S.E.2d 666 (1979).

3. The right to a jury trial in an involuntary mental commitment does not exist as a part of our common law.

4. The requirement of W.Va. Code, 27-5-4(j), which mandates that the mental hygiene commissioner shall determine if there are less restrictive alternatives available, has as a corollary that a good faith effort must be made to find a placement in a less restrictive alternative, and that such search must encompass a reasonably broad geographic area.

5. W.Va. Code, 27-5-4(i)(3), cannot be construed to require a testifying physician or psychologist to produce records pertaining to an individual when such records are not prepared by him and are not in his custody or control or that of the institution for which he works.

Daniel F. Hedges, Charleston, for petitioners Markey and Triplett.

Jay Montgomery Brown, Fairmont, for C. F. H. & G. T. M.

Tom Trent, Asst. Atty. Gen., Charleston, for respondents Wachtell and Clark.

Chauncey H. Browning, Jr., Atty. Gen., David R. Brissell, Asst. Atty. Gen., Charleston, for appellee State.

MILLER, Justice:

In State ex rel. Hawks v. Lazaro, W.Va., 202 S.E.2d 109 (1974), we set forth a number of due process rights which must be accorded adults who are faced with involuntary commitment to mental hospitals. ¹ In the four consolidated cases now before us, ² we are asked to further hold that such persons shall be accorded the right to a jury trial. We decline to do so.

The argument is advanced that our constitutional language that "(n)o person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers," ³ goes beyond the protection customarily afforded by the Fifth and Fourteenth Amendments of the United States Constitution, since neither of these federal amendments contains the clause, "and the judgment of his peers." As a corollary to this argument, it is contended that, under the English common law, a jury trial was afforded on the issue of insanity and, therefore, that the jury trial right must be conceived as having become a part of Article III, Section 10 of the West Virginia Constitution.

I

The precise genealogy of Article III, Section 10 of the West Virginia Constitution is difficult to trace. Its remote antecedent is the 39th clause of Magna Carta, which, according to its translation by Holdsworth in A History of English Law, Vol. II (7th ed. 1956) at 59, states:

"No freeman shall be taken or/and imprisoned, or disseised, or exiled, or in any way destroyed, nor will we go upon him nor will we send upon him, except by the lawful judgment of his peers or/and by the law of the land." ⁴

The two critical phrases, "by the lawful judgment of his peers" and "by the law of the land," are found in Section VIII of the Virginia Declaration of Rights of 1776: "(N)o man (shall) be deprived of his liberty except by the law of the land, or the judgment of his peers." Most commentators appear to agree that despite a certain fundamental difference in origin, the phrase "the law of the land," by the time our Federal Constitution was framed in 1789, had come to have the same meaning as "due process of law." Hough, Due Process of Law To-Day, 32 Harv.L.Rev. 218 (1919); Reeder, The Due Process Clauses and "The Substance of Individual Rights", 58 U.Pa.L.Rev. 191 (1910).

As our own Judge Hatcher has ably demonstrated, at the time of Magna Carta the jury trial as we know it today did not exist. The term "judgment of his peers" historically meant that one in a superior rank in the medieval hierarchy could not be judged by one in an inferior rank. J. Hatcher, Magna Carta and the Jury System, 42 W.Va.L.Q. 1 (1935); see also Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 922 (1926).

Notwithstanding the separate evolution of the phrases "due process of law" and "judgment of his peers," they have become merged to a considerable degree, as illustrated by the case of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The central issue in Duncan was whether the Due Process Clause of the Fourteenth Amendment of the United States Constitution required that the right to a trial by jury in a criminal case, guaranteed by the Sixth Amendment, be made obligatory on the states. In order to resolve this issue, the Court had to determine if the concept of due process embodied the right to a trial by jury. After examining historical precedents, the Court concluded:

"(T)he right to jury trial in serious criminal cases is a fundamental right and hence must be recognized by the States as part of their obligation to extend due process of law to all persons within their jurisdiction. . . ." (391 U.S. at 154, 88 S.Ct. at 1450, 20 L.Ed.2d at 499.)

The Court in Duncan refused, however, to extend the right to a jury trial to all criminal cases, and followed its earlier interpretation of the Sixth Amendment in Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), that a jury trial is not required for petty offenses. Cheff noted that even Justice Goldberg's dissent in United States v. Barnett, 376 U.S. 681, 751, 84 S.Ct. 984, 1018, 12 L.Ed.2d 23, 65 (1964), recognized that:

" '(A)t the time of the Constitution all types of "petty" offenses punishable by trivial penalties were generally triable without a jury. This history justifies the imposition without trial by jury of no more than trivial penalties for criminal contempts.' " (384 U.S. at 379, 86 S.Ct. at 1525-26, 16 L.Ed.2d at 633-34)

Thus, despite the absolute language of the Sixth Amendment that "(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury" (emphasis supplied), the United States Supreme Court has held that the right is not absolute. The Court has looked to the historical fact that at the time the Constitution was framed, petty offenses were triable without a jury in both England and the original thirteen states.

We have never considered that the framers of Article III, Section 10 of the West Virginia Constitution intended to extend the right of jury trial to all cases. Had they so intended, there would have been no need for Article III, Section 13, which preserves the right to a jury trial "(i)n suits at common law," ⁵ nor for Article III, Section 14, which provides that "(t)rials of crimes, and misdemeanors . . . shall be by a jury of twelve men . . . ."

The language of Article III, Section 10 of our present State Constitution, which was adopted in 1872, concerning "due process of law, and the judgment of his peers," is not found in our original Constitution framed in 1863. Instead, Article II, Section 6 of the 1863 Constitution provided: "No person, in time of peace, shall be deprived of life, liberty or property, without due process of law." ⁶ Jelly v. Dils, 27 W.Va. 267 (1885), appears to have been the first occasion where our Court considered the 1872 constitutional language "due process of law, and the judgment of his peers." There, we unanimously stated:

"This provision of our constitution, as interpreted by the decisions of the courts, was not intended to create, enlarge or restrict the right of trial by jury but to preserve it inviolate, as it existed, when the constitution was adopted, and to permit no encroachment upon it." (27 W.Va. at 276)

Because Jelly was decided only thirteen years after the adoption of the 1872 Constitution, it must be deemed to accurately reflect the intention of the framers of that Constitution, particularly since two of the four members of the Jelly Court had served as members of the 1872 Constitutional Convention. ⁷

The principle stated in Jelly, that Article III, Section 10 was not designed to extend the right of jury trial to all cases, has been uniformly followed by this Court. See, e. g., Lamb v. Strother, 118 W.Va. 257, 189 S.E. 865 (1937); Lawhead v. Board of Trustees, 115 W.Va. 475, 176 S.E. 860 (1934). As noted in Lamb, to hold otherwise would be to destroy what is known as equity jurisdiction, where matters are traditionally heard without jury. Moreover, since administrative agencies are empowered to regulate property rights and levy fines as an incident of their enforcement powers, it is obvious that a jury trial would be required in virtually all administrative hearings if Article III, Section 10 were taken literally. A traditional attack on legislation which sought to regulate economic matters was, indeed, that such legislation violates the right to jury trial or due process as contained in Article III, Section 10 a challenge we have consistently rejected. ⁸

Even though the concepts of "property" and "liberty" found in Article III, Section 10 of our State Constitution and in the Fifth and Fourteenth Amendments to the United States Constitution have been given an expanded meaning, resulting in an extension of procedural due process protection, this Court has not held that Article III, Section 10...