State v. Miller, 26851

• Decision Date: 24 March 2000
• Docket Number: 26851
• Parties: STATE OF WEST VIRGINIA EX REL. MICHAEL A.P., Petitioner, V. HONORABLE LAWRANCE S. MILLER, JR., JUDGE OF THE CIRCUIT COURT OF PRESTON COUNTY, THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES AND THE MONONGALIA COUNTY YOUTH SERVICES CENTER, Respondents.IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2000 Term Submitted:
• Court: West Virginia Supreme Court

197 W.Va. 597, 588
476 S.E.2d 535, 544

STATE OF WEST VIRGINIA EX REL. MICHAEL A.P., Petitioner,
V.
HONORABLE LAWRANCE S. MILLER, JR., JUDGE OF THE CIRCUIT COURT OF PRESTON COUNTY, THE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES AND THE MONONGALIA COUNTY YOUTH SERVICES CENTER, Respondents.

No. 26851

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2000 Term

Submitted: February 15, 2000

Filed: March 24, 2000

PETITION FOR WRIT OF PROHIBITION

SYLLABUS BY THE COURT

1."'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.' Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977)." Syllabus point 1, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).

2."'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)." Syllabus point 1, State ex rel. Youth Services Systems, Inc. v. Wilson , 204 W. Va. 637, 515 S.E.2d 594 (1999).

3."'A circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer's representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship.' Syl. Pt. 1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991)." Syllabus point 2, Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994).

4.In a juvenile proceeding, the decision whether to grant or deny a motion to disqualify a lawyer due to a conflict of interest is within the sound discretion of the circuit court, even where the interested parties have waived any conflict.

Virginia Jackson Hopkins Kingwood, West Virginia Attorney for the Petitioner

Melvin C. Snyder III Prosecuting Attorney for Preston County Kingwood, West Virginia Attorney for Respondent, Honorable Lawrance S. Miller

WRIT DENIED

JUSTICE DAVIS delivered the Opinion of the Court.

Davis, Justice:

In this original proceeding in prohibition, Michael A.P., (FN1) a juvenile, seeks to prohibit the Circuit Court of Preston County, acting in its juvenile court capacity, from enforcing its order of November 18, 1999. By that order, the court disqualified Michael's court-appointed counsel from further representing him due to the appearance of impropriety arising from her former representation of another juvenile who is expected to be called as a witness for the State in the proceedings against Michael. Michael contends that, because the parties concerned have waived any potential conflict of interest, the disqualification order should not be enforced. We hold that the decision whether to disqualify counsel, even when any conflict has been waived, is within the discretion of the trial court. In addition, we conclude that no appropriate grounds for issuing a writ of prohibition were presented in this case. Therefore, the writ is denied.

I. FACTUAL AND PROCEDURAL HISTORY

On September 27, 1999, the Preston County Prosecutor filed a juvenile delinquency petition against Michael A.P., the petitioner, alleging various offenses including possessing a deadly weapon on school property. (FN2) Michael, a student, was allegedly found to have brought a knife to school with him. During a preliminary hearing in this matter, Virginia Jackson Hopkins was appointed to represent Michael. In addition, the principal of the school testified at the hearing. He stated that another student, Daniel B., who had also been found to have a knife on school property, alerted him that Michael had a knife at school. Following the preliminary hearing, Michael was placed in the legal custody of the West Virginia Department of Health and Human Resources and, and in the physical custody of the Monongalia County Youth Services Center.

Subsequent to Michael's preliminary hearing, Ms. Hopkins was appointed to represent Daniel B. in connection with charges against him for having a knife on school property. However, at a preliminary hearing on the charges against Daniel, the assistant prosecuting attorney moved that Ms. Hopkins be disqualified due to the conflicting interests of the two boys, who were both being represented by Ms. Hopkins. Although Ms. Hopkins objected to being disqualified, the circuit court granted the prosecutor's motion and appointed other counsel for Daniel.

Meanwhile, in Michael's case, Ms. Hopkins requested a trial by jury and further asked that Michael be released to the custody of his father. Sometime after these requests were made, the prosecuting attorney filed a motion to disqualify Ms. Hopkins from representing Michael. The prosecutor asserted that during Ms. Hopkins' representation of Daniel, she was believed to have discussed with him the facts relating to Michael. Furthermore, the prosecutor stated that Daniel was expected to testify at the adjudicatory hearing in Michael's case. The prosecutor argued that Ms. Hopkins' examination of Daniel at Michael's adjudicatory hearing would create an actual conflict, or at least the appearance of impropriety. Ms. Hopkins resisted being disqualified. She asserted that there was no actual conflict as the boys gave corresponding accounts of the relevant events. (FN3) She also reported that the juveniles and their parents had waived any potential conflict, though she presented the court with no evidence demonstrating this fact. (FN4) After conducting a hearing on the motion to disqualify, the circuit court entered an order finding Ms. Hopkins was disqualified from further representing Michael. In its order, the court explained:

[I]t may create the appearance of impropriety for Ms. Hopkins to continue representation of the Juvenile Respondent. In particular, there is a likelihood that Ms. Hopkins will cross examine, Daniel [B.], another Juvenile Respondent, who she previously represented, about matters related to this case which she discussed with him while she represented him.

Michael, through Ms. Hopkins, then filed a petition for writ of prohibition in this Court seeking to prohibit the circuit court from disqualifying Ms. Hopkins as his counsel. (FN5) We granted a rule to show cause. We now deny the writ of prohibition.

II. STANDARD FOR WRIT OF PROHIBITION

Expressing the limits to our exercise of original jurisdiction in prohibition, we have frequently explained that "'[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a...