Rufener v. Shaud
| Decision Date | 02 December 1977 |
| Docket Number | 12263,Nos. 12262,s. 12262 |
| Citation | 98 Idaho 823,573 P.2d 142 |
| Parties | Ernest RUFENER and Griselda Rufener, Applicants-Appellants, v. Russell C. SHAUD, Magistrate, Fifth Judicial District, State of Idaho, Respondent. |
| Court | Idaho Supreme Court |
James J. May of May, May, Sudweeks & Fuller, Twin Falls, for applicants-appellants.
Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., Boise, for respondent.
Defendants-appellants Ernest and Griselda Rufener were charged by criminal complaint with first degree murder, kidnapping, and embezzlement. Preliminary hearing was held and magistrate Granata bound the defendants over on involuntary manslaughter and false imprisonment rather than first degree murder or kidnapping. The prosecuting attorney filed an appropriate information against each defendant in district court, but later each information was dismissed by the district court on motion of the prosecuting attorney. The prosecuting attorney then refiled complaints alleging first degree murder and kidnapping. Respondent, Magistrate Russell C. Shaud, was assigned to the case on second filing. Defendants moved to dismiss the complaint, or in the alternative, to require the original magistrate to hear the case again; respondent denied the motion. Defendants then sought alternative writs of prohibition and/or mandate from the district court to require Judge Shaud to either dismiss the cases or re-assign them to the original magistrate. The district court denied the motions and defendants appeal. This case comes before this court as two appeals, which were consolidated by the Court.
Defendants assign error to the procedure of dismissing and refiling a charge once a defendant has been through preliminary hearing and probable cause has been found lacking on that charge.
This question was raised and disposed of in the recent case of Stockwell v. State, 98 Idaho ---, 573 P.2d 116 (1977), which held in substance that such a refiling is not prohibited unless done without good cause or in bad faith. The record in this case reflects neither and therefore we believe defendants' claim in this respect to be without merit.
Defendants also assign error to the refusal of the district judge to order the preliminary hearing on the refiled charges to be held before Judge Granata. They cite as authority the Oklahoma cases of Chase v. State, Okl.Cr.App., 517 P.2d 1142 and Jones v. State, Okl.Cr.App., 481 P.2d 169. These cases do not persuade us that Idaho should adopt the rule that the same judge who heard the first preliminary hearing must hear the one on the refiled charge if he is still available. In this state judges are assigned through the administrative procedures of the Court and not selected by the parties.
The state contends that writs of mandate and prohibition are not available in this situation. We agree with the latter position and affirm.
Writs of mandate and prohibition are provided for by statute. 1 Each may be issued only when there is no plain, speedy and adequate remedy in the ordinary course of the law, I.C. §§ 7-303, and 7-402, 2 or when the court has no jurisdiction or exceeds its jurisdiction.
This court has held that
"A right of appeal is regarded as a plain, speedy and adequate remedy at law in the absence of a showing of exceptional circumstances or of the inadequacy of an appeal to protect existing rights." Smith v. Young, 71 Idaho 31, 33, 225 P.2d 466, 468 (1950).
See also, Coeur d'Alene Turf Club Inc. v. Cogswell, 93 Idaho 324, 461 P.2d 107 (1969); Felton v. Prather, 95 Idaho 280, 506 P.2d 1353 (1973). Nothing in this case precludes defendants from their normal right to appeal. Defendants contend that appeal is inadequate to prevent them from being subjected to the remainder of the criminal process and that the writ is necessary to prevent them from having to negotiate the second preliminary hearing and possible eventual trial. This court long ago recognized that Willman v. District Court, 4 Idaho 11, 35 P. 692 (1894). There are no circumstances shown in this case to be exceptional nor is it shown that defendants will be subjected to any hardships over and above those ordinarily borne by a defendant in a criminal prosecution. Smith v. Young, supra. Either writ was consequently improper under the circumstances in this case.
The writ of prohibition additionally is available upon a showing that the body to be enjoined by the writ is in some manner in excess of its jurisdiction. I.C. § 7-401. The magistrate clearly had jurisdiction. I.C. § 1-2208(3)(d).
Affirmed.
I concur in the action of the Court in affirming the district court's denial of the applications for writs of prohibition and/or mandate. It is clear, as the decision of the Court has pointed out, that the statutory grounds for issuance of the writs did not exist and therefore the district court properly denied the writ.
This case bears out the evaluation I made of what the Court's decision actually stands for in the companion case of State v. Stockwell, 98 Idaho 797, 573 P.2d 116 (1977), namely: a violation of defendant's constitutional rights to due process of law, and a radical realignment of the power structure prescribed by article 1, § 8 of the Idaho Bill of Rights, which interposed a neutral judiciary between the prosecutor-advocate and the accused. As I feared, the true lesson in Stockwell was that this Court, in effect, was putting Idaho magistrates on notice that it would condone whatever judicial restructuring was necessary to uphold "prosecutorial zeal that demands an obsequious judge and inevitable victory in every case." People v. Uhlemann, 9 Cal.3d 662, 108 Cal.Rptr. 657, 662, 511 P.2d 609, 614 (1973). In Rufener, that lesson is more nakedly evident.
To his credit, Justice Bakes, in authoring Stockwell, did attempt to keep that opinion within bounds. The porous logic of the opinion, however, like the faulty earthenworks at Teton Dam, has immediately given way. In Stockwell, the majority heard an appeal from a non-appealable district court order granting habeas corpus relief, and used the occasion to reach all the way back to the preliminary hearing in a criminal action which was dismissed and declared that the magistrate at that hearing committed error. Despite the inevitable message which such appellate practice conveys, the Court in Stockwell concluded:
" . . . our holding is a narrow one based upon the following circumstances of this case: (1) that the magistrate erred by preventing the state from reopening and introducing additional relevant evidence at the preliminary hearing; (2) that the record in this case does not suggest that the dismissal and refiling of the charge was done for harassment or delay or because the prosecutor had made no effort to present available evidence at the first preliminary hearing; and (3) the prosecutor followed steps in refiling the charge which were not prohibited by the statutes or criminal rules in felony cases."
By the time we get to Rufener, Stockwell is said to stand for the proposition that "such a refiling is not prohibited unless done without good cause or in bad faith." This is the standard which is applied in those states which have retained the ancient prosecutorial privilege of nolle prosequi and which have no equivalent to Idaho's constitutional and statutory protections:
" . . . the right of the prosecutor to nol-pros a case is not subject to judicial control unless exercised by the prosecutor in a scandalous or corrupt manner, or shown to be capricious and vexatiously repetitious." District of Columbia v. Benefield, 248 A.2d 127 (D.C.C.A.1963).
Nonetheless, Justice Bakes is silent in the face of Rufener's distortion of the views he attempted to state in Stockwell. 1 I can only conclude that Rufener is what Stockwell truly stands for. Again, that message will not be lost on this state's prosecutors and magistrates.
According to the opinion of Magistrate Shaud which the district court adopted in substance the question before the Court in Rufener's petition for writ of prohibition concerns "whether or not the prosecuting attorney may dismiss an action and then refile charges for the same or more serious offense." The question betrays an unfortunate mind-set which is apparently prevalent among Idaho's lower judiciary and which today prevails in this Court as well. Given Idaho's constitutional and statutory framework, the question which should have been addressed is:
Has the prosecutor presented a proper motion for dismissal, obtained a valid dismissal order, and shown sufficient reason to justify refiling the same charges which were rejected earlier by the committing magistrate?
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