State ex rel. Doe v. Troisi

Decision Date18 May 1995
Docket NumberNo. 22817,22817
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. JOHN DOE, Jane Doe, and Jane Roe, Relators, v. Honorable Joseph G. TROISI, Special Judge of the Circuit Court of Kanawha County, and Michele Rusen, Special Prosecuting Attorney for Kanawha County, Respondents.
[194 W.Va. 30] investigation. Once properly invoked, the circuit court has discretion to decide on a question-by-question basis whether the privilege was properly asserted during the grand jury proceedings

Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for relators.

Michele Rusen, Sp. Pros. Atty. for Kanawha County, Parkersburg, for respondents.

CLECKLEY, Justice:

In this original proceeding in prohibition, the relators request that we broaden the attorney-client privilege by creating a per se preliminary standard for grand jury proceedings that requires prosecutors to show a compelling need for certain information before a subpoena issued for the attorneys of investigated clients may be enforced. We decline to create such a far reaching standard out of fear that such an expansive rule would impede the grand jury's investigative duties. We recognize that because of the inherent conflict between the attorney-client privilege and the grand jury, it is necessary to grant the circuit court broad discretion to require a preliminary showing if there is a suspicion that the subpoena power is being misused.


The issues asserted in this original proceeding arise from a special grand jury proceeding before the respondent, the Honorable Joseph G. Troisi. Judge Troisi was appointed as a Special Judge for Kanawha County by an administrative order of this Court dated June 30, 1994, following the voluntary disqualification of all the Kanawha County Circuit Judges. The respondent, Michele Rusen, was appointed as Special Prosecutor by Judge Troisi after the Office of the Kanawha County Prosecuting Attorney disqualified itself from the investigation or prosecution of Target Client and Target B. 1 A special grand jury is currently investigating alleged criminal activities by Target Client and Target B. The relators in this case are John Doe, an attorney currently representing Target Client; Jane Doe, an investigator at John Doe's firm; and Jane Roe, a former associate in John Doe's law firm.

After Target B was accused of sexually harassing certain court employees and others, an investigation was conducted. The matter was then referred to the Judicial Hearing Board. Target B ultimately admitted to some of these allegations prior to resigning his position as a circuit judge.

Target B allegedly sexually harassed and abused Target Client on August 5, 1992, in his chambers. Target Client executed an affidavit detailing this harassment on August 5, 1992. Following an unusual series of events, in April, 1994, Target Client allegedly attempted to extort money from Target B in exchange for her silence about the harassment. Target Client was arrested by the Federal Bureau of Investigations following the extortion attempt and was represented by John Doe's law firm. The federal warrant for Target Client's arrest was later dismissed. Sometime following her arrest, Target Client, with the assistance of John Doe's law office, released a copy of the aforementioned affidavit and a press release. The press release and the affidavit were published in substantial part in the Charleston Daily Mail, a newspaper of general circulation.

Following the February special grand jury proceedings and further investigation, subpoenas were issued for John Doe, Jane Doe, and Jane Roe. The subpoenas were returnable for the second scheduled appearance of the grand jury on March 13, 1995. All the relators filed motions to quash the subpoenas. Jane Roe's motion to quash was heard At the in camera hearing, Judge Troisi agreed with the relator, Jane Roe, that the State must make a preliminary showing of the "purpose of ... [the] grand jury investigation" and the relevance and need for the requested testimony. The special prosecutor explained the purpose of the testimony was to elicit information surrounding Target Client's affidavit. Judge Troisi, satisfied with the special prosecutor's explanation, refused to quash the subpoena for Jane Roe. However, Judge Troisi stated his refusal to quash the subpoena in no way abrogated Jane Roe's right to assert the attorney-client privilege, and he would evaluate the assertion of this privilege on a question-by-question basis in an in camera hearing at the conclusion of the questioning of this witness. A similar hearing was held to consider John Doe's and Jane Doe's motions to quash. As with Jane Roe, Judge Troisi required the special prosecutor to make a preliminary showing and, once again, he found an adequate showing had been made to defeat the motions to quash.

[194 W.Va. 31] in camera by Judge Troisi on March 13, 1995.

Thereafter, Jane Roe was called to testify before the special grand jury. During her testimony, Jane Roe asserted the attorney-client privilege a number of times. The court held an in camera hearing to determine whether the privilege applied to the questions raised. During the course of the hearing, John Doe and Jane Doe were invited to participate in the in camera hearing. The court directed that Jane Roe's testimony be transcribed, and then scheduled another hearing for March 17, 1995, to consider the scope of the waiver of the attorney-client privilege.

As this Court interceded and issued a rule to show cause on or about March 14, 1995, the hearing scheduled for March 17, 1995, was not held. Jane Roe has testified, but has not been required to answer any questions where she asserted the attorney-client privilege. The special grand jury has taken no action that would render these proceedings moot.

A. Writ of Prohibition

We must first consider whether a writ of prohibition is an appropriate remedy for the parties in this case. As a recent practice, we have refused to exercise original jurisdiction to issue a writ of prohibition 2 when disputes are purely factual or where the issues raised are matters within the trial court's discretion and jurisdiction. See State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992). This limitation is no accident, but instead flows from deliberate policy decisions from this Court and the United States Supreme Court which have restricted the granting of writs of prohibition to cases of an extraordinary nature. State ex rel. Allen v. Bedell, 193 W.Va. 32, 36-39, 454 S.E.2d 77, 81-84 (1994) (Cleckley, J., concurring). See Ex parte Collett, 337 U.S. 55, 72, 69 S.Ct. 944, 953, 93 L.Ed. 1207, 1217 (1949), quoting Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 1559, 91 L.Ed. 2041, 2043 (1947) (" '[m]andamus, prohibition and injunction against judges are drastic and extraordinary remedies.... As extraordinary remedies, they are reserved for really extraordinary causes' "). In fact, in Syllabus Point 12 of Glover v. Narick, 184 W.Va. 381, 400 S.E.2d 816 (1990), we repeated our general standard in prohibition cases:

" 'In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition See also State ex rel. Elish v. Wilson, 189 W.Va. 739, 434 S.E.2d 411 (1993); State ex rel. Parkland Development, Inc. v. Henning, 189 W.Va. 186, 429 S.E.2d 73 (1993); Ash v. Twyman, 174 W.Va. 177, 324 S.E.2d 138 (1984).

                [194 W.Va. 32]  in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.'   Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979)."

The relators do not question the jurisdiction of the lower court, but are seeking prohibition on the ground that the special prosecuto...

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