State ex rel. Lawson v. Wilkes

• Decision Date: 25 February 1998
• Docket Number: No. 24582.,24582.
• Citation: 202 W.Va. 34,501 S.E.2d 470
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Deborah A. LAWSON and the Public Defender Corporation for the Twenty-third Judicial Circuit, Petitioners, v. Honorable Christopher WILKES, Judge of the Circuit Court of Jefferson County, and Ismael Velasquez, Respondents.

501 S.E.2d 470

202 W.Va. 34

STATE of West Virginia ex rel. Deborah A. LAWSON and the Public Defender Corporation for the Twenty-third Judicial Circuit, Petitioners, v. Honorable Christopher WILKES, Judge of the Circuit Court of Jefferson County, and Ismael Velasquez, Respondents.

No. 24582.

Supreme Court of Appeals of West Virginia.

Submitted January 13, 1998.

Decided February 25, 1998.

Deborah A. Lawson, Public Defender Corporation, Twenty-third Judicial Circuit, Charles Town, for Petitioners.

PETITION FOR WRIT OF PROHIBITION

DAVIS, Chief Justice:

In this original proceeding in prohibition, the petitioners, Deborah A. Lawson, an attorney at law, and the Public Defender Corporation for the Twenty-third Judicial Circuit, her employer, ask this court to prohibit the Circuit Court of Jefferson County from compelling the Public Defender Corporation, as guardian ad litem for an incarcerated convict, to pursue a civil appeal that it believes to be without merit. We find that the circuit court erred in appointing a guardian ad litem to assist an incarcerated convict in connection with a civil forfeiture proceeding. Consequently, we grant the writ of prohibition as moulded.

I. FACTUAL AND PROCEDURAL HISTORY

Ismael Velasquez [hereinafter "Velasquez"] was indicted on four counts of distribution of marijuana after an undercover police officer made four controlled purchases of marijuana from him. Velasquez was also indicted on one related count of possession of marijuana with intent to distribute. A jury trial was had on one count of distribution of marijuana and the associated count of possession with intent to distribute. The jury convicted Velasquez on both counts. Thereafter, Velasquez pleaded guilty to a second count of distribution of marijuana. The remaining charges were nolled pursuant to a plea agreement. Velasquez was then sentenced to three concurrent terms of two to ten years. During the trial and the subsequent plea negotiations, Velasquez was represented by Steven M. Askin, Esq.¹ However, shortly after filing a notice of intent to appeal Velasquez's criminal conviction, Mr. Askin surrendered his license to practice law. Consequently, an appeal of the criminal action was pursued by Kevin D. Mills, Esq.² Ultimately, the petition for appeal was denied by this Court.

Pursuant to the West Virginia Contraband Forfeiture Act, W.Va.Code § 60A-7-701, et seq., a civil forfeiture action was also initiated seeking forfeiture of $21,241.25 in United States Currency and a 1987 Suzuki Samarai motor vehicle, both of which were believed to have been substantially connected to the aforementioned illegal drug transactions. At the time of the filing of the civil forfeiture petition, the circuit court appointed David Camilletti as guardian ad litem for Velasquez. In addition, Velasquez was represented in the forfeiture action by Steven Askin. After Mr. Askin surrendered his law license, Cinda Scales, Esq., was assigned to represent Velasquez. Ultimately, Ms. Scales filed a motion to withdraw as counsel claiming that Velasquez refused to execute an authorization for her to represent him in the forfeiture action.³

At some point during the proceedings, the circuit court also appointed the Public Defender Corporation as guardian ad litem for Velasquez. Notwithstanding this appointment, the court did not release Mr. Camilletti from his representation as guardian ad litem at that time. The Public Defender Corporation, presumably by its employee Deborah Lawson [hereinafter collectively referred to as the "PDC"], filed a response to the forfeiture petition and a trial schedule was established.

At a subsequent pre-trial conference, Mr. Camilletti and the PDC both moved for leave to withdraw from representation as guardian ad litem for Mr. Velasquez. The circuit court granted Mr. Camilletti's motion, denied the PDC's motion, and apparently clarified that the PDC was to act in the capacity of guardian ad litem, and not in any manner as counsel for Velasquez. The PDC contends that throughout the pre-trial conference, Mr. Velasquez objected to being represented by the PDC. Mr. Velasquez apparently asserted two reasons for his objection. First, he felt he should be represented by counsel that he had retained (presumably Askin). Second, he believed the PDC, as an agency of the State, had an inherent conflict of interest in representing him.

Nevertheless, a jury trial was held in the civil forfeiture action wherein Velasquez appeared pro se, and the PDC appeared as his guardian ad litem. Prior to and during the course of the jury trial, numerous motions were made and argued on behalf of Velasquez, many of which were identical to motions previously raised in Velasquez's criminal trial. After hearing the evidence and the arguments of the parties, the jury returned a verdict in favor of the State, thereby permitting the forfeiture of Velasquez's above described property. In its order entering the jury verdict, the circuit court appointed the PDC to represent Velasquez in any appeal taken on this matter. Although the order does not indicate that the PDC was to act in the capacity of guardian ad litem, the PDC contends that it was in fact appointed only in that capacity.

Thereafter, the PDC again moved for leave to withdraw as guardian ad litem for Velasquez. The PDC alleged that no valid ground for appeal existed and that filing a petition for appeal in this civil proceeding would subject the PDC to sanctions under Rule 11 of the West Virginia Rules of Civil Procedure. The Circuit Court of Jefferson County, by its order entered November 4, 1997, denied the motion. Explaining its denial of the PDC's motion, the court stated:

Upon consideration, it is this Court's opinion that the relevant standard to be applied in consideration of this motion is that set forth in the case of Turner v. Haynes, 162 W.Va. 33, 245 S.E.2d 629 (1978), and its progeny. Even though this case is a civil action and one for which the Supreme Court of Appeals has not granted a right to court-appointed counsel, the claimant herein is under a legal disability and is entitled to representation by a guardian ad litem. This court finds that once a right to representation, of whatever nature, has attached, that right remains in place until a court of competent jurisdiction makes a final ruling on appeal. The West Virginia Supreme Court of Appeals accordingly is the body which must make a determination on the merits of an appeal, or lack thereof.

This order has the practical effect of compelling the PDC to pursue an appeal of the civil forfeiture action in spite of the fact that the PDC strongly believes that the appeal has no merit.⁴ The PDC has rather inartfully framed the issue raised in prohibition. However, we perceive that the PDC asks this Court to prohibit the circuit court from requiring it to bring such an appeal.

II. DISCUSSION

A. Writ of Prohibition

We have repeatedly stated the general rule with respect to the propriety of the extraordinary remedy of prohibition as follows: "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code, 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). In its petition, the PDC provided no specific argument as to why prohibition is appropriate in this case. However, we surmise that the PDC's argument, had it been made, would have been that prohibition should issue because the circuit court exceeded its legitimate powers.

In this regard, we have held:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). Moreover, we have explained that "[m]andamus, prohibition and injunction against judges are drastic and extraordinary remedies.... As extraordinary remedies, they are reserved for really extraordinary causes." State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal quotations and citations omitted). With due consideration for these standards, we have thoroughly contemplated the issue raised and find that the circuit court exceeded its legitimate powers by appointing a guardian ad litem for an incarcerated convict with respect to a civil forfeiture action brought pursuant to the West Virginia Contraband Forfeiture Act, W.Va.Code§§ 60A-7-701, et seq. Because the court exceeded its legitimate powers by appointing a guardian ad litem for Velasquez in the civil forfeiture action, itself, the court likewise may not compel such guardian to pursue an appeal of that action on behalf of Velasquez.

B. Guardian Ad Litem

Rule 17(c) of the West Virginia Rules of Civil procedure requires, in relevant part, the appointment of a guardian ad litem for a convict...