State ex rel. Preissler v. Dostert

Decision Date20 November 1979
Docket NumberNo. 14516,14516
Citation260 S.E.2d 279,163 W.Va. 719
CourtWest Virginia Supreme Court
PartiesSTATE ex rel. Detlev PREISSLER v. The Hon. Pierre E. DOSTERT, Judge, etc., et al.

Syllabus by the Court

1. Where there is no showing on the record that any party has properly instituted proceedings in a court of record, the court cannot exercise jurisdiction over the matter and any purported order or judgment entered is void and its enforcement may be restrained by prohibition.

2. The prosecuting attorney is a constitutional officer who exercises the sovereign power of the State at the will of the people and he is at all times answerable to them. W.Va.Const., art. 2, § 2; art. 3, § 2; art. 9, § 1.

3. Before a prosecuting attorney may be disqualified from acting in a particular case and relieved of the duties imposed upon him by the Constitution and by statute, the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard.

Radosh & Askin, Steven M. Askin, Martinsburg, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Gottlieb, Asst. Atty. Gen., Charleston, for respondents.

McGRAW, Justice:

Petitioner seeks a writ of prohibition against Pierre E. Dostert, Circuit Judge of Jefferson County and William Richard McCune, Jr., Special Prosecuting Attorney of Jefferson County. Petitioner alleges that the respondent judge is disqualified from acting in the case and that his order disqualifying the elected prosecutor and appointing a special prosecutor is void and of no effect. We award the writ.

On the evening of March 25, 1979, the petitioner was visited at his home in Harpers Ferry by a Mr. Willie Herbert Windham. Mr. Windham, a helicopter pilot, had flown a helicopter to Harpers Ferry and had parked it adjacent to the petitioner's residence. At approximately 8:00 p. m. that evening, three officers of the Harpers Ferry police department went to the petitioner's residence to arrest Mr. Windham for violating a municipal ordinance and a statute, 1 both regulating the operation of aircraft within city limits.

According to the petitioner, the officers attempted to force their way into his home. When he asked to see a warrant, a man whom he recognized as the respondent judge stepped forward holding a small pistol which he placed in petitioner's face and shouted, "This is America; I am the Judge; this is my warrant as I am the law." The respondent judge directed the officers to arrest the petitioner, which they immediately did. The officers then arrested the petitioner's son, again allegedly at the direction of the respondent judge.

The respondent judge offers a different version of the facts. He states that he was present at the time of the petitioner's arrest at the request of the arresting officers. In his affidavit, the respondent states that he requested the owner of the residence, petitioner, to accompany the Harpers Ferry police, but that this request was refused on the ground that there was no warrant. By counsel, respondent alleges that the petitioner refused to allow the police to arrest Mr. Windham and became verbally abusive towards them.

Respondent maintains that he then stated to the officers that inasmuch as a misdemeanor (obstructing an officer) was being committed in their presence, they could arrest the petitioner. According to respondent the arrest was effected only after a struggle during which the petitioner screamed obscenities at both the police and the respondent. Shortly thereafter, Erik Preissler, son of the petitioner, allegedly attempted to prevent the pilot from accompanying the police and the respondent then indicated that the police could also arrest Erik Preissler, which they did without a struggle. The events were witnessed by the respondent judge, the three police officers, and an unnamed bystander.

On March 26, 1979, a warrant charging the petitioner with obstructing an officer, sworn to by Sergeant Roland T. Turner of the Harpers Ferry police force, was filed in the magistrate court in Jefferson County, West Virginia.

On March 27, 1979, Robert R. Skinner, the prosecuting attorney of Jefferson County, was alleged to have made statements to the press 2 concerning the charges against the petitioner. Shortly thereafter, attorney for the petitioner approached the respondent judge and informally demanded that either the petitioner be allowed to have a hearing or the charges be dismissed with prejudice. 3

On April 5, 1979, the respondent judge entered an order summarily recusing Jefferson County Prosecutor Robert Skinner and appointing the respondent William Richard McCune, Jr., as a special prosecutor to proceed with the petitioner's case. The petitioner then filed a petition for a writ of prohibition asking this Court to restrain William Richard McCune, Jr., from acting as special prosecutor against the petitioner and from proceeding further in the action, and to prohibit the Honorable Pierre E. Dostert from taking any further action in the proceeding against the petitioner. A rule on the petition was awarded July 6, 1979.

The petitioner contends that due to his personal participation in the petitioner's arrest, the respondent judge is disqualified from hearing or acting in the petitioner's case and that his order appointing respondent McCune as special prosecutor is void. Respondents argue that prohibition should not issue in that (1) the magistrate who has jurisdiction of the case has not been made a party to the action, (2) the respondent has no jurisdiction over the case, is not attempting to exercise jurisdiction over the case, and will disqualify himself from further participation if he subsequently assumes jurisdiction over the case, (3) the circuit court judge properly exercised his discretion in appointing a special prosecutor, and (4) the judge by appointing a special prosecutor was merely advancing the cause towards a final hearing.


We do not find respondents' challenge to the authority of this Court to award the writ in this case meritorious. The respondents argue that since the petitioner faces charges before a magistrate in the magistrate court rather than before the respondent judge in the circuit court, and since the magistrate and the magistrate court were not named parties to this action, the writ cannot issue. Respondents correctly state that this Court has held that a writ of prohibition must go against both the tribunal and the person having an adverse interest to be affected by the writ. State ex rel. St. Clair v. Marinari, 150 W.Va. 373, 145 S.E.2d 464 (1965). However, the petitioner here is not seeking to stay the proceedings of the magistrate court upon the substantive charge of obstructing an officer. Rather, the petitioner is challenging the respondent judge's authority under W.Va.Code § 7-7-8 to remove the elected prosecutor and appoint a special prosecutor and the validity of the order implementing the removal. The statute clearly grants this power only to circuit court judges. The magistrate and the magistrate court have no jurisdiction over the appointment of special counsel and, therefore, are not proper parties to whom the writ may be directed. As to the petitioner's request that the respondent be prohibited from further action in the case, we need not reach that issue for reasons discussed Infra.

Respondents also cite State ex rel. Partain v. Oakley, W.Va., 227 S.E.2d 314 (1976), as holding that "any person whose right may be affected by the issuance of a writ by this Court must be made a party and must be given notice of the proceedings by service of the writ." While the magistrate and the magistrate court have jurisdiction of the substantive offense with which the petitioner is charged, we cannot find any rights of the magistrate or the magistrate court which may be affected by the issuance of a writ of prohibition against the respondent judge to restrain an action over which the magistrate court has no jurisdiction.

As we find that the respondents were correctly made parties to this action, we proceed to discuss the merits of the petitioner's case.


Petitioner seeks both prospective and retroactive relief by means of prohibition. First he asks that, by reason of his participation in petitioner's arrest, the respondent judge be restrained from sitting on petitioner's case and from taking any further action thereon. 4 Petitioner also asks that we restrain the enforcement of the order entered April 5, 1979, recusing the elected prosecuting attorney and appointing a special prosecutor, on the grounds that by reason of the respondent's alleged disqualification to act in the case, the order is void.

We note that the undisputed facts of this case indicate that the respondent judge was present at the time of petitioner's arrest and was involved in the proceedings. Apparently, even the respondents do not question that the judge's involvement in the events on the night of petitioner's arrest disqualifies him to hear the merits of petitioner's case, as evidenced by the respondent judge's statement that should the case come before him in circuit court, he would voluntarily disqualify himself from hearing it.

While on these facts we believe a reasonable basis exists for a finding that the respondent judge is indeed disqualified from acting in the petitioner's case, we decline to make the factual determination of disqualification at this time. The proper procedure under the administrative rules of this Court for recusing a circuit court judge by reason of disqualification is the filing of a written motion for disqualification in the circuit court stating the evidence supporting the challenge. 5 Once the proper motion is filed, all proceedings stop and the judge is prohibited from taking any further action in the case until a determination can be had on...

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