State ex rel. Green v. Dostert

• Decision Date: 24 June 1983
• Docket Number: No. 15722,15722
• Citation: 172 W.Va. 222,304 S.E.2d 675
• Parties: STATE ex rel. Stuart GREEN v. Pierre E. DOSTERT, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 675

304 S.E.2d 675

172 W.Va. 222

STATE ex rel. Stuart GREEN v. Pierre E. DOSTERT, Judge, etc., et al.

No. 15722.

Supreme Court of Appeals of West Virginia.

June 24, 1983.

Syllabus by the Court

1. Pursuant to Rule XVII of the West Virginia Trial Court Rules for Courts of Record, when a written motion for disqualification of a judge is filed at least seven days in advance of the trial date set in the proceedings, the judge is required to proceed no further in the matter pending resolution of the motion by the Chief Justice of the Supreme Court of Appeals.

2. "The writ of prohibition lies as a matter of right when the inferior court ... exceeds its legitimate powers." Syllabus Point 5, in part, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960).

Nicholas & Skinner and John C. Skinner, Jr., Charles Town, for relator.

Pierre E. Dostert, Judge, Circuit Court, Jefferson County, Charles Town, pro se.

McGRAW, Chief Justice:

This is an original proceeding in prohibition. The petitioner is Stuart Green. The respondents are the Honorable Pierre E. Dostert, Judge of the Twenty-third Judicial Circuit sitting in Jefferson County, and Rosa W. Lynch, Clerk of the Circuit Court of Jefferson County. The petitioner seeks to prohibit Judge Dostert from enforcing a sua sponte order issued October 29, 1982, directing the respondent clerk to deliver electronically recorded audio tapes of grand jury proceedings, which resulted in indictment of the petitioner for involuntary manslaughter, to the respondent judge for an in camera review. ¹ We find that the respondent judge acted outside his jurisdiction in issuing the order, and, therefore, grant the writ.

On October 5, 1982, the petitioner was arrested under a warrant charging him with murder in the first degree of his infant son. On October 14, 1982, after a preliminary hearing at which probable cause was found to bind the petitioner over to the grand jury, Judge Dostert convened a special grand jury to hear the charges against the petitioner. Although Judge Dostert convened the grand jury, he did not preside at the grand jury proceedings. Rather, the Honorable C. Reeves Taylor, Chief Judge of the Twenty-first Judicial Circuit, fulfilled this duty. ² On October 15, 1982, the special grand jury returned an indictment charging the petitioner with involuntary manslaughter. At the conclusion of the grand jury proceedings, the stenographer delivered tape recordings of the proceedings to the clerk of the circuit court.

On the same day the indictment was returned, the petitioner, who had been incarcerated in the Jefferson County Jail since his arrest, appeared before Judge Taylor and moved to be released on bail. The court granted the motion and set bail at $1000.00. This amount was tendered in the form of a check drawn on the trustee bank account of petitioner's counsel. Although the funds in the trustee account were represented to be the property of the petitioner, the prosecuting attorney objected to this method of giving bail, contending that it amounted to an attorney becoming surety on a bond. The court rejected the prosecutor's objection.

The petitioner asserts that after his release on bail on October 15, 1982, Judge Dostert, in a long-distance telephone conversation with the circuit court clerk, directed the clerk to return the tape recordings of the special grand jury proceedings to the stenographer. ³ The petitioner further asserts that Judge Dostert informed the clerk that Judge Taylor had erroneously instructed the grand jury, resulting in the petitioner not being indicted for murder, and that because bail had been improperly given, he would issue an order revoking the petitioner's bail and mail it from Florida. Judge Dostert admits having a conversation with the clerk on October 15, 1982, in which he expressed his opinion concerning the impropriety of an attorney giving bond for his client, but asserts that he told the clerk only that he "would consider the matter."

On October 27, 1982, the petitioner, by counsel, filed a motion to disqualify Judge Dostert from hearing the case, citing as grounds, inter alia, the conversation had between Judge Dostert and the clerk on October 15, 1982, regarding the special grand jury proceedings and the petitioner's release on bail. Two days after this motion was filed, Judge Dostert entered an order, sua sponte, directing the clerk to surrender to him all the electronically recorded tapes of the special grand jury proceedings for an in camera review. In accordance with the order, the clerk delivered the tapes to Judge Dostert. Although the petitioner's case had been placed upon the circuit court's docket, no trial had been scheduled at the time the order was entered. Subsequently, the petitioner initiated this proceeding to prohibit Judge Dostert from enforcing the sua sponte order. We find that the respondent judge exceeded his legitimate powers by failing to halt his involvement in the proceedings once the petitioner's motion for disqualification had been filed. ⁴

Pursuant to Rule XVII of the West Virginia Trial Court Rules for Courts of Record (Trial Court Rules), when a written motion for disqualification of a judge is filed at least seven days in advance of any trial date set in the proceedings, the judge is required to proceed no further in the matter pending resolution of the motion by the Chief Justice of the Supreme Court of Appeals. If the motion for disqualification is filed less than seven days prior to the date set for trial, the judge shall convene a hearing and rule upon the motion for disqualification himself, allowing the moving party to make a full record in support of the motion. ⁵

In the case sub judice, the petitioner filed his motion for disqualification on October 27, 1982, when no date had yet been set for trial. Clearly, then, the respondent judge was required under the provisions of Trial Court Rule XVII to "[p]roceed no further in the matter ...." See State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 (1979); Stern Bros., Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977). Accordingly, the respondent judge exceeded his legitimate authority by entering the sua sponte order of October 29, 1982, directing the clerk to surrender the tape recordings of the special grand jury proceedings which resulted in the indictment of the petitioner. "The writ of prohibition lies as a matter of right when the inferior court ... exceeds its legitimate powers." Syllabus Point 5, in part, State ex rel. Smith v. Bosworth, 145 W.Va. 735, 117 S.E.2d 610 (1960); see also W.Va.Code § 53-1-1 (1981 Replacement Vol.); State ex rel. Miller v. Smith, 168 W.Va. 745, 285 S.E.2d 500 (1981); State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978); State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977); State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963); White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942); Norfolk & Western Ry. v. Pinnacle Coal Co., 44 W.Va. 547, 30 S.E. 196 (1898); Wood County Court v. Boreman, 34 W.Va. 362, 12 S.E. 490 (1890).

Trial Court Rule XVII relating to the disqualification of judges was adopted by this Court on May 29, 1975, more than eight years ago, and was thoroughly discussed by the Court six years ago in Stern Bros., Inc. v. McClure, supra. Moreover, in State ex rel. Priessler v. Dostert, supra, a case involving the same judge involved in this proceeding, we specifically stated that "[o]nce the proper [disqualification] motion is filed, all proceedings stop and the judge is...