State v. Boone
| Decision Date | 13 December 1975 |
| Docket Number | No. 47960,47960 |
| Citation | 218 Kan. 482,543 P.2d 945 |
| Parties | STATE of Kansas, Appellant, v. William F. BOONE, Appellee. |
| Court | Kansas Supreme Court |
1. A preliminary examination is a hearing before a magistrate on a complaint to determine if a felony has been committed and if there is probable cause to believe that the person charged committed it. Other principles concerning the nature of a preliminary examination and the functions of an examining magistrate are stated.
2. A basic requirement of due process is the right to a fair trial in a fair tribunal.
3. An accused's right to due process of law is not per se infringed because his preliminary examination is conducted by a nonlawyer judge.
4. In general, the test used to determine whether due process is offended in criminal cases presenting circumstances of potential judicial bias is whether the judge's situation is one which would offer a possible temptation to the average person as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the state and the accused.
5. Due process of law in the conduct of a preliminary examination is not offended because the county attorney is the statutory legal adviser to the examining magistrate.
6. The classification under K.S.A.1974 Supp. 59-201 prescribing certain qualifications of examining magistrates according to a county's population is not so palpably arbitrary and unreasonable as to deny equal protection of the laws.
Tim W. Ryan, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellant.
John Berglund, Clay Center, argued the cause and was on the brief for appellee.
John C. Peck, of Everett, Seaton & Peck, Manhattan, was on the brief amicus curiae for Robert M. Solem and Susan Wilken.
HARMAN, Commissioner:
In this appeal by the state the issue is whether a criminal defendant's rights to due process and equal protection of the laws under the federal constitution are violated when he is required to submit to preliminary examination before a nonlawyer judge.
The facts in the case are agreed. Appellee William F. Boone was charged with unlawful possession of firearms, a felony under K.S.A. 21-4204(1)(b). At his preliminary hearing in the Clay county court appellee Boone raised the issue now before us, asserting the judge was not a lawyer and possessed little judicial experience and further that the county attorney prosecuting the action was by statute the legal adviser of the county judge. The county judge overruled appellee's objections to examination before him, conducted a preliminary hearing and bound appellee over for trial in the Clay county district court. Upon arraignment there appellee raised the same objections and moved to dismiss the information filed against him. On June 5, 1975, the district court sustained defendant's motion. This appeal by the state ensued.
We first examine certain statutes pertaining to county courts along with population factors. County courts are established pursuant to K.S.A. 20-802, under which the judge of that court is authorized to conduct a preliminary examination in a criminal case. It may also be noted that a county court judge is a magistrate under the definition stated in K.S.A. 22-2202(12)(c) and presides over one of a group of courts which exercise limited criminal jurisdiction including the conduct of preliminary investigations (city courts, courts of common pleas and magistrate courts, all with countywide jurisdiction).
Under K.S.A. 20-803 the probate judge of a county also serves as judge of the county court. Certain exceptions to this exist by reason of specially created courts, mostly in our larger counties, with the result there are presently in Kansas a total of ninety-three probate judges who are ipso facto county court judges in their respective counties. K.S.A.1974 Supp. 59-201 outlines the qualifications for probate judge. Among other things it provides:
Under this statute there are presently 22 of our 105 counties in Kansas in which the county court judge is required to be a lawyer because their population is over 24,000. According to data supplied by our state judicial administrator two counties which have less than 24,000 population presently have a lawyer serving as county court judge by reason of special legislation (see K.S.A. 20-1425, 20-1505 and 20-2404) and four others of like population have lawyer magistrates by reason of election. Summing up, 77 county courts are now served by judges who are not lawyers.
We consider next the nature and purpose of a preliminary examination. In Kansas, every person arrested, or served with a summons charging a felony has the right to a preliminary examination before a magistrate, unless such warrant has been issued as a result of an indictment by a grand jury (K.S.A. 22-2902(1)). This court has repeatedly held that a preliminary hearing is not a trial in the sense that word is ordinarily used (State v. Bloomer, 197 Kan. 668, 421 P.2d 58, cert. den. 387 U.S. 911, 87 S.Ct. 1697, 18 L.Ed.2d 631). The right to a preliminary examination is purely statutory. It is not mandated either by general constitutional privileges (Sciortino v. Zampano, 385 F.2d 132 (CA 2, 1967), cert. den. 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872), or the requirements of constitutional due process (Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340).
According to K.S.A. 22-2202(14) the term 'preliminary examination' means a hearing before a magistrate on a complaint to determine if a felony has been committed and if there is probable cause to believe that the person charged committed it. In State v. Pigg, 80 Kan. 481, 103 P. 121, the purpose of a preliminary hearing was delineated thus:
(Syl. 1.)
Accord: State v. Cox, 193 Kan. 571, 396 P.2d 326, cert. den. 380 U.S. 982, 85 S.Ct. 1350, 14 L.Ed.2d 276.
In State v. Bloomer, supra, this was said:
(197 Kan. p. 671, 421 P.2d p. 62)
Thus a preliminary examination affords the person arrested as a result of a complaint an opportunity to challenge the existence of probable cause for further detaining him or requiring bail. Also, a preliminary examination can give the accused general information about the nature of the crime charged and apprise him of the sort of evidence he will be required to meet when he is subjected to final prosecution in the district court (In re Mortimer, 192 Kan. 164, 386 P.2d 261). The object of a preliminary examination is not to determine the guilt or innocence of the accused. The examining magistrate has no power to acquit but only the power to discharge from custody. Such discharge is not a bar to another prosecution (State v. Bloomer, supra). The magistrate in a felony case has no jurisdiction to arraign the accused or to accept a plea of guilty of the charge (State v. Talbert, 195 Kan. 149, 402 P.2d 810, cert. den. 382 U.S. 868, 86 S.Ct. 143, 15 L.Ed.2d 107). To iterate, a magistrate conducting a preliminary examination serves a limited function-to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it.
Traditionally the rule has been that unless there is a statutory or constitutional requirement a judge need not be an attorney (see 46 Am.Jur.2d, Judges, § 8). The challenge here is constitutional, the denial of due process aspect of which we shall first discuss. A basic requirement of due process is the right to a fair trial in a fair tribunal. The argument for the requirement that only a law trained judge can constitutionally conduct a preliminary examination is something like this: A preliminary hearing is a 'critical stage' of a prosecution (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387); it is now well established as a matter of federal constitutional law that an indigent criminal defendant is entitled to the assistance of counsel in any federal...
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