State ex rel. Payne v. Mitchell

• Decision Date: 19 November 1968
• Docket Number: No. 12714,12714
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Mary Betty PAYNE, etc. v. E. L. MITCHELL, Justice of the Peace, et al.

Page 201

164 S.E.2d 201

152 W.Va. 448

STATE ex rel. Mary Betty PAYNE, etc. v. E. L. MITCHELL, Justice of the Peace, et al.

No. 12714.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1968.

Decided Nov. 19, 1968.

Syllabus by the Court

'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed(eral) Ins. Co. of N(ew) Y(ork), 146 W.Va. 160 (133 s.e.2d 770.).

Katz, Katz, & Kantor, David M. Katz, Norris Kantor, Bluefield, Bailey, Worrell, Camper & Viers, Harry G. Camper, Jr., Welch, for appellant.

Barley & Goode, Grover C. Goode, Leon P. Miller, Welch, for appellees.

BROWNING, Judge:

Plaintiff, Mary Betty Payne, instituted this action in the Circuit Court of McDowell County, for false arrest, false imprisonment and violation of her civil rights under T. 42, § 1983 of the U.S. Code, alleging that on May 31, 1965, she was arrested on a warrant charging her with profanity and taken before a justice of the peace, who ordered her placed in jail where she was held for approximately eight hours before being released. She was subsequently, on June 3, 1965, tried and convicted and fined $10.00, which conviction was dismissed on motion of the state upon her appeal. The complaint alleges that her arrest and imprisonment were accomplished with profanity and threatening gestures on the part of the constable who arrested her and the justice of the peace; she was refused the right to telephone relatives or an attorney and was denied admission to bail. A copy of the warrant filed as an exhibit recites, in part, 'Whereas Ralph Brash of said county has this day made complaint and information on oath * * * that Mrs. Mary Betty Payne of said County, on the 30th day of May, 1965, in said County, Did unlawfully and profanely curse and swear in a public place and cause a disturbance of the peace, against the peace and dignity of the State of West Virginia.' Named as defendants are the justice, the constable and their bonding company. Defendants answered denying any irregularities in the procedures against plaintiff and discovery depositions were taken in behalf of both plaintiff and defendants.

Mrs. Payne, the plaintiff, testified that she owned a home at Premier, McDowell County, and had resided there for approximately five years; a sewer line runs by her house to a culvert resulting in some difficulties in the past; and that on May 29, 1965, a Saturday, five of her neighbors met by her property alleging the sewer line to be stopped up, she had a stick but did not raise it, no profanity was used by either side, but that 'I told Ralph I'm going to the law, I can't stand that filth any longer. You could get hepatitis or typhoid fever from it. He said, you don't own this. I said, I've got the deed for it. I'll take you for a warrant for trespassing.' She further testified that on May 31, 1965, at approximately 4:30 p.m., Constable Mays arrived at her home, broke her screen door and informed her he had a warrant for her for fighting and disturbing the peace; she changed her clothes and accompanied him outside where she observed a neighbor and shouted to him, 'Hey Alfred, did you hear any cussing or fighting or shooting down there?'; she got into the car and was 'humiliated' all the way to the justice of the peace; the justice said 'Take her to jail. Get her out of here.'; she asked permission to call her daughter and her lawyer and was refused and also asked the amount of her bond to which no reply was made; at the jail she was again refused permission to telephone but through the services of some children outside the jail, her daughter was contacted and she was released at approximately 11:00 p.m Ralph Brash testified: that on May 29, he and another man had gone to unstop the sewer; that plaintiff threatened them with a broom handle and called them 'dirty trash'; that he went to the justice two days later, told the justice of his complaint and the warrant was sworn to before 'the girl' in the justice's office.

John Mays, the constable, states that he picked up the warrant for Mrs. Payne at the office of Justice of the Peace Mitchell on the evening of Monday, the 31st; went to plaintiff's home and informed her of the warrant, did not break in her screen door, did not use any profanity or threaten her in any way; did not show her the warrant brcause she did not ask to see it; she talked to a neighbor in leaving the home; he took her to the justice and 'she got a little loud and he told me to take her and put her in jail, that he was afraid she would go back over there and get in some trouble with those people;' there was no one present to go her bail; and, Mrs. Payne might have requested permission to telephone at the jail.

Mitchell, the justice of the peace, testified that Brash told him Mrs. Payne was calling him 'all kinds of names', he asked Brash if he wanted '* * * to make this complaint under oath and he said he did. I told him to go around to the window and give the girl the information and see about the warrant', and he thereafter issued the warrant for 'profanity and disturbance of the peace.' He further stated that when she was brought before him by Constable Mays he did not read the warrant to her, she did not ask to call a lawyer or to his recollection, anyone else; he did not set bail as no one was present to give bail for her; he later set bail at $500.00 around 9:00 p.m.; and, he thought it necessary to place her in jail 'Because she was in a rage over them people.'

Defendants moved for summary judgment on the basis of the pleadings and discovery depositions which motion the court sustained on March 14, 1967, a motion to set aside such judgment was overruled and plaintiff applied to this Court for an appeal which was granted on December 4, 1967.

It may be that upon a full development of the facts in this case it will be found that the defendants are without liability to the plaintiff in this action upon the authority of the cases cited by counsel for the defendants. In the early case of Fausler v. Parsons, 6 W.Va. 486, this Court held that where the subject matter and the person are within the jurisdiction of a court the judge thereof is not subject to a civil action for any minor matter done by him 'in the exercise of his judicial functions.' In the recent Virginia case of Berry v. Smith, 148 Va. 424, 139 S.E. 252, 55 A.L.R. 279, it was held that judicial officers 'acting within their jurisdiction' are exempt from civil liability for official acts even though it is alleged that such acts were malicious and corrupt. We have carefully considered also the very recent decision of the Supreme Court of the United States in Pierson, et al. v. Ray, et al., 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, decided April 11, 1967. Succinctly the holding in that case was to the effect that the civil rights act did not abolish the immunity of judges for acts 'within the judicial role.' However, as will hereinafter be noted, there is a conflict of evidence upon what might be material points and we are of the opinion that the case is...