State ex rel. Goodwin v. Cook

• Decision Date: 17 October 1978
• Docket Number: No. 14248,14248
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. James W. GOODWIN v. The Honorable Jerry W. COOK, Judge, etc., et al.

Page 602

248 S.E.2d 602

162 W.Va. 161

STATE ex rel. James W. GOODWIN v. The Honorable Jerry W. COOK, Judge, etc., et al.

No. 14248.

Supreme Court of Appeals of West Virginia.

Oct. 17, 1978.

Dissenting Opinions Oct. 26, 27, 1978.

Syllabus by the Court

1. A citizen and taxpayer may have standing in prohibition to challenge the constitutionality of a statute which not only affects the administration of justice, but requires the payment of public funds.

2. "As a general rule any person who will be affected or injured by the proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition; but a person who has no interest in such proceeding and whose rights will not be affected or injured by it can not do so." Syllabus Point 6, Linger v. County Court, 150 W.Va. 207, 144 S.E.2d 689 (1965).

3. Upon the question of the constitutionality of a statute, courts are guided by the cardinal rule that favors a construction of the statute so that it will not be found to conflict with a constitutional principle.

4. W.Va.Code, 7-7-8, authorizing a circuit judge to appoint a special prosecutor where the court finds the prosecuting attorney is unable or it would be improper for him to act in a given case, does not violate Article VI, Section 40 of the West Virginia Constitution, which prohibits the Legislature from conferring on any court the power of appointment to office.

5. W.Va.Code, 7-7-8, authorizing the payment out of the county treasury of a reasonable fee to a special prosecutor, does not create an impermissible pecuniary interest in the special prosecutor so as to render the statute unconstitutional under the due process provisions of Article III, Section 10 of the West Virginia Constitution.

Thomas, Perry, Covert & King, M. Joseph Thomas, St. Albans, and Robert G. Perry, for relator.

Douglas Witten, Logan, Guy R. Bucci, Charleston, for respondents.

MILLER, Justice:

This original prohibition challenges the constitutionality of W.Va.Code, 7-7-8, which provides for the disqualification of the prosecuting attorney and the appointment by the circuit court of a special prosecutor. ¹ The primary ground for the unconstitutionality is based on Article VI, Section 40 of the West Virginia Constitution, which states:

"The legislature shall not confer upon any court, or judge, the power of appointment to office, further than the same is herein provided for."

We decline to hold the statute unconstitutional.

Petitioner James W. Goodwin is a County Commissioner in Boone County and also the uncle of an assistant prosecuting attorney of Boone County. A complaint was filed against Mr. Goodwin in a magistrate court, alleging misuse of county property. Subsequently, the respondent, the Honorable Jerry W. Cook, Judge of the Circuit Court of Boone County, utilizing the provisions of W.Va.Code, 7-7-8, entered an order disqualifying the prosecuting attorney and his assistants from proceeding in the matter. Judge Cook then appointed Douglas Witten and Guy R. Bucci, attorneys at law, to act as special prosecutors. ²

Petitioner, Goodwin, maintains that the constitutional provision prohibiting a judge from having the power of appointment to office renders W.Va.Code, 7-7-8, unconstitutional. The argument is also made that the provision in the statute permitting payment of a reasonable compensation creates a pecuniary interest in the special prosecutor which violates due process concepts, rendering the statute unconstitutional. Consequently, petitioner claims the respondent judge is without authority to appoint special prosecutors to pursue the case against him.

The respondent judge and special prosecutors argue that the statute is not unconstitutional as our constitutional provision does not apply to temporary appointments resulting from a temporary disqualification of the prosecuting attorney. Respondents also contend that this provision must also be read in the light of law that holds, even in the absence of a statute, that a trial court possesses the inherent power to remove a prosecutor for cause in an individual case and appoint a special prosecutor. They assert the fee payment is not unconstitutional since the special prosecutor is not paid from the costs of the case. Respondents also maintain that petitioner lacks standing to challenge the Judge's action.

Since the question of petitioner's standing is a threshold issue, we deal with it first. The respondents do not dispute the fact that the petitioner, Goodwin, is being subjected to a criminal investigation. Although the record does not disclose the precise nature of the charge filed in the magistrate court, it is not denied that the respondent judge has transferred jurisdiction of the charge to the circuit court. ³

It seems apparent that petitioner has either been charged with a criminal offense or is the subject of criminal investigation by the special prosecutors, or both. On this basis he may be deemed to have a special interest in the correctness of the appointment of the special prosecutor. Moreover, as a citizen and taxpayer, he may have standing to challenge the constitutionality of a statute which not only affects the administration of justice, but requires the payment of public funds for a special prosecutor. ⁴

In Howard v. Ferguson, 116 W.Va. 362, 180 S.E. 529 (1935), certain citizens and taxpayers in Mingo County sought to prohibit the Circuit Court of Wayne County from exercising jurisdiction in Mingo County when the Legislature had transferred Mingo County to the same judicial circuit as Wayne County, but before the expiration of the term of office of the circuit judge of Mingo County. The Court, in discussing petitioners' standing, stated:

"Ordinarily, prohibition is invoked by a party or parties interested in a specific matter as to which they are advised that the tribunal concerned is acting in excess or abuse of jurisdiction. But it is not necessary that the petitioner or petitioners for prohibition be directly concerned in the subject matter of the controversy, 'as every citizen is interested in restraining courts within their appropriate jurisdictions.' Midland Inv. Corporation v. Ballard, 101 W.Va. 591, 595, 133 S.E. 316." (116 W.Va. at 364-65, 180 S.E. at 530)

Judge Haymond, writing for a unanimous Court in State ex rel. Glass Bottle Blowers Association v. Silver, 151 W.Va. 749, 155 S.E.2d 564 (1967), emphasized the State's interest in any prohibition suit:

"The State, in its capacity as sovereign, also has an interest to prevent any of its courts from acting without jurisdiction or in excess of the jurisdiction conferred upon it. State ex rel. Collier v. County Court of Mingo County, 97 W.Va. 615, 125 S.E. 576. In the opinion in that case this Court, with relation to the writ of prohibition, used this language: 'At common law the relator need have no personal interest in the proceeding sought to be prohibited. The writ would issue upon the application of a stranger to the record of the suit or proceeding sought to be prohibited. The original theory upon which the writ issued was that where an inferior court usurped jurisdiction or exceeded its jurisdiction it acted in contempt of the sovereign the fountain of justice and the source of jurisdiction. In modern practice the state stands in the relation of sovereign; so that any court, proceeding in excess of the jurisdiction conferred upon it, in principle acts in contempt of the state. 2 Spelling's Inj. and Ex.Rem. §§ 1745, 1746; High's Ex.Rem. § 779; Mayo v. James, 12 Grat. (Va.) 17; Worthington v. Jeffries, L.R. 10 C.P. 379; State v. Burckhart (Burckhartt), 87 Mo. 533; Thompson (Thomson) v. Tracy, 60 N.Y. 31; State v. Superior Court, 7 Wash. 77, 34 P. 430; 7 Comyn's Digest (5th ed.), 141; 8 Bacon's Abridg. 210.' " (151 W.Va. at 754, 155 S.E.2d at 567-68)

From the foregoing authorities, it is clear that the petitioner, Goodwin, does have standing to challenge the constitutionality of the statute authorizing the Judge to appoint special prosecutors. Moreover, his special interest as a person subject to a criminal charge or criminal investigation by an allegedly improperly appointed special prosecutor would give him standing under the following cases: State ex rel. Linger v. County Court, 150 W.Va. 207, 144 S.E.2d 689 (1965); State ex rel. Gordon Memorial Hospital, Inc. v. West Virginia State Bd. of Examiners for Registered Nurses, 136 W.Va. 88, 66 S.E.2d 1 (1951); Midland Investment Corp. v. Ballard, 101 W.Va. 591, 133 S.E. 316 (1926).

We come now to the main issue, and that is a consideration of the scope of Article VI, Section 40 of the West Virginia Constitution. This provision bars the Legislature from conferring upon the courts the power of appointment to office.

Upon the question of the constitutionality of a statute, we must be guided by the cardinal rule that favors a construction of the statute so that it will not be found to conflict with a constitutional principle. Woodring v. Whyte, W.Va., 242 S.E.2d 238 (1978); State ex rel. West Virginia Housing Development Fund v. Waterhouse, W.Va., 212 S.E.2d 724 (1974); State ex rel. Metz v. Bailey, 152 W.Va. 53, 159 S.E.2d 673 (1968).

We are not cited, nor do we find any history of this particular constitutional provision. It was not in the 1863 Constitution, but came to us in the 1872 Constitution. ⁵ This provision was considered in Poling v. County Court, 116 W.Va. 580, 182 S.E. 778 (1935). There, the Court held a statute authorizing circuit judges to fill vacancies in the office of prosecuting attorney Acts 1933, Ex.Sess., C. 51 to be unconstitutional in light of Article VI, Section 40.

Poling correctly stated that the office of prosecuting attorney is a public office. It is constitutionally sanctioned. West Virginia Constitution, Article IX, Section 1. State v. Ehrlick, 65 W.Va. 700, 64 S.E. 935 (1909), discusses some of the historical background of the office and the fact it is separate from the office of ...