State Va. v. Marshall
| Decision Date | 03 May 2011 |
| Docket Number | Nos. 35736,35737.,s. 35736 |
| Citation | 227 W.Va. 679,714 S.E.2d 331 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, ex rel. Rhonda BAY, Petitionersv.Brenda K. MARSHALL, Magistrate of Wood County, et al., RespondentsState of West Virginia, ex rel. Ashleigh and Daniel Jurkovich, Petitionersv.Jason Bennett, et al., Magistrate of Roane County, et al., Respondents. |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. “Petitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself.” Syl. Pt. 1, State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
2. “A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.” Syl. Pt. 2, State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
3. Syl. Pt. 3, State ex rel. Deblasio v. Jackson, 227 W.Va. 206, 707 S.E.2d 33 (2011).
4. “Where a clerk of a court has denied an application to proceed in forma pauperis, and the applicant has requested a review of that denial by a judge, the sole issue to be determined by the judge reviewing the application and financial affidavit is whether the applicant meets the Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases.” Syl. Pt. 4, State ex rel. Deblasio v. Jackson, 227 W.Va. 206, 707 S.E.2d 33 (2011).
5. “The appeal bond required by the Rules of the Supreme Court of Appeals is a cost within the meaning of W.Va.Code, 59–2–1, and a poor person, within the meaning of that statute, may prosecute an appeal on his own recognizance, rather than by posting a money bond.” Syl. Pt. 2, Rosier v. Rosier, 162 W.Va. 902, 253 S.E.2d 553 (1979).
Bruce Perrone, Legal Aid of West Virginia, Charleston, WV, for the Appellants.Victoria L. Casey, Charleston, WV, for the Intervenor West Virginia Landlords Association, Inc., of the West Virginia Landlords Association, Inc., Kanawha County/Charleston Chapter.
In the consolidated cases examined by the Court in this matter, tenants have sought relief in the form of writs of mandamus and prohibition in cases originating separately in Wood County and Roane County. In State ex rel. Rhonda Bay v. Honorable Brenda K. Marshall, Magistrate of Wood County, et al., tenant Rhonda Bay seeks a writ of mandamus to compel the Magistrate Court of Wood County to accept the filing of her appeal to the Circuit Court of Wood County without requiring her to post an appeal bond.1 In State ex rel. Ashleigh and Daniel Jurkovich v. Honorable Jason Bennett, Magistrate of Roane Co., et al., Ashleigh and Daniel Jurkovich seek a writ of mandamus to compel the Magistrate Court of Roane County to allow them to file an appeal without the payment of a filing fee. Subsequent to thorough review of the arguments of counsel, records submitted for review by this Court, and applicable precedent, this Court finds that the requested writs of mandamus should be granted as moulded. The Magistrate Courts of Wood County and Roane County failed to perform a non-discretionary duty by requiring the posting of an appeal bond in Ms. Bay's case and the payment of a filing fee in the Jurkoviches' case.
In the first of these two consolidated matters, Rhonda Bay, a tenant of landlord Albert Pryor, leased property in Parkersburg, West Virginia, through a month-to-month verbal rental agreement for $695.00 per month. According to the record in this matter, a water pipe on the premises broke in August 2010. Responding water company personnel ultimately reported unsafe conditions, and citations for violation of health and safety codes were issued.
Mr. Pryor filed an unlawful detainer action 2 against Ms. Bay in Magistrate Court in September 2010. Ms. Bay denied the allegations and asserted that she had not received notice of the hearing 3 held on October 6, 2010, during which immediate possession of the leased premises and costs of $387.22 were awarded to Mr. Pryor. When Ms. Bay sought to appeal this holding, she was informed that she would be required to pay an appeal bond despite the fact that she had been permitted to submit a financial affidavit pursuant to West Virginia Code § 59–2–1 (1999) (Repl.Vol.2005),4 allowing her to proceed in forma pauperis and waiving the payment of a normal circuit court filing fee.
In her request for relief with this Court, Ms. Bay maintains that the Magistrate Court lacked authority to require the posting of an appeal bond where a financial affidavit pursuant to West Virginia Code § 59–2–1 had been submitted and approved, waiving the payment of the circuit court filing fee. Specifically, Ms. Bay emphasizes that West Virginia Code § 50–5–12(a) (1994) (Repl.Vol.2008) provides that “[n]o bond shall be required ... of a person who has been permitted to proceed without prepayment in accordance with the provisions of” West Virginia Code § 59–2–1.
Mr. and Mrs. Jurkovich instituted a civil action against their landlord, Mr. Clark Crider, seeking compensation for the loss of use of rental premises due to flea infestation, allegedly caused by pets of a neighboring tenant. Subsequent to the filing of a counterclaim and a separate action by Mr. Crider claiming damages to the rental unit, Mr. Crider was awarded $1,298.60. Mr. and Mrs. Jurkovich sought to appeal the magistrate court determination to the Circuit Court of Roane County. Prior to the initiation of their civil action, Mr. and Mrs. Jurkovich had filed a financial affidavit pursuant to West Virginia Code § 59–2–1 and had been permitted to proceed in forma pauperis, waiving the requirement for payment of a magistrate court filing fee. However, upon their attempt to appeal, they were informed by court personnel that they would be required to pay the $146.00 filing fee to appeal from magistrate court to circuit court.
Mr. and Mrs. Jurkovich now seek a writ of mandamus to compel the Magistrate Court of Roane County to allow them to file an appeal without the payment of circuit court filing fees.
This Court has consistently held that “[p]etitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself.” Syl. Pt. 1, State ex rel. Kucera v. The City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). In syllabus point two of Kucera, this Court also stated: “A writ of mandamus will not issue unless three elements coexist—(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.”
In State ex rel. Deblasio v. Jackson, 227 W.Va. 206, 707 S.E.2d 33 (2011), this Court recently addressed the procedures available to qualified indigent litigants to initiate civil actions without the prepayment of fees, costs, and security. In Deblasio, this Court explained that a proceeding in forma pauperis is permitted through the procedures identified in West Virginia Code § 59–2–1, as quoted above, and is implemented through Rule 77(e) of the West Virginia Rules of Civil Procedure, Rule 22 of the Rules of Civil Procedure for the Magistrate Courts of West Virginia, and the Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases, approved by this Court on April 29, 2003.5 In syllabus point three of Deblasio, this Court explained:
The Financial Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases, require the clerk of the court to make the initial determination whether the disclosures in an applicant's financial affidavit meet the Guidelines to proceed in forma pauperis. A writ of mandamus will issue to compel the clerk to perform that non-discretionary administrative duty. Syllabus point four of Deblasio provides as follows:
Where a clerk of a court has denied an application to proceed in forma pauperis, and the applicant has requested a review of that denial by a judge, the sole issue to be determined by the judge reviewing the application and financial affidavit is whether the applicant meets the Guidelines for Determining Eligibility for Waiver of Fees, Costs, or Security in Civil Cases.
The guiding language of West Virginia Code § 59–2–1 expressly provides that the statute applies to individuals “financially unable to pay the fees or costs attendant to the commencement, prosecution or defense of any civil action or proceeding, or an appeal therein....” Thus, fees associated with an appeal may also be waived upon the filing of a financial affidavit for the waiver of fees under the procedures of West Virginia Code § 59–2–1.6 An additional financial affidavit may be required under certain circumstances, as identified in West Virginia Rule of Civil Procedure 77(e)(1),7 explaining as follows:
A person seeking waiver of fees, costs, or security, pursuant to Chapter 59, Article 2, Section 1 [§ 59–2–1] of the Code of West Virginia, shall execute before the clerk or a deputy an affidavit prescribed by the chief justice of the Supreme Court of Appeals, which shall be kept confidential in divorce and domestic violence proceedings. An additional...
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