Thomas v. Justice Court of Washakie County

• Decision Date: 14 July 1975
• Docket Number: No. 4538,4538
• Citation: 538 P.2d 42
• Parties: Lenora Eloise THOMAS, Petitioner, v. The JUSTICE COURT OF WASHAKIE COUNTY, Woyming, and the Honorable Ray Pendergraft, Justice of the Peace, Respondents.
• Court: Wyoming Supreme Court

Page 42

538 P.2d 42

Lenora Eloise THOMAS, Petitioner, v. The JUSTICE COURT OF WASHAKIE COUNTY, Woyming, and the Honorable Ray Pendergraft, Justice of the Peace, Respondents.

No. 4538.

Supreme Court of Wyoming.

July 14, 1975.

James H. Sperry, Sperry & Obert, Worland, for petitioner.

Robert A. Jones, Washakie County and Pros. Atty., for respondents.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

McCLINTOCK, Justice.

Lenora Eloise Thomas, charged in Justice Court of Washakie County, Wyoming with the crime of manslaughter in violation of § 6-58, W.S.1957 by original proceedings in this Court seeks to prohibit the said justice court and Ray Pendergraft, a nonlawyer justice of the peace of that court, from proceeding with preliminary hearing of the matter. On or about January 31, 1975 one Jerry Wayne Thomas, husband of the petitioner, was found dead alongside U.S. Highway 20, approximately nine miles north of Worland, Wyoming, Petitioner was arrested and charged with voluntary manslaughter, a felony. A preliminary hearing was set for April 7, 1975 by Ray Pendergraft, the acting and qualified justice of the peace of Washakie County, who is not an attorney. The present proceeding was filed after he had denied motion of the accused to call in an attorney-justice to hear the matter.

Judge Pendergraft was appointed justice of the peace on January 7, 1975, pursuant to provisions of §§ 5-99.2 and 5-99.3, W.S.1957, 1973 Cum.Supp. No question is raised as to his probity and lack of bias, and the issue under the application is whether it is a denial of due process in violation of Art. 1, § 6 of the Wyoming Constitution and the Fourteenth Amendment to the Constitution of the United States for Judge Pendergraft, a nonattorney justice of the peace, to conduct a preliminary hearing in this matter.

Although neither party has raised the question, we think that before we reach the issue on the merits we must first determine whether it is proper for this Court under its rules and previous decisions, to exercise jurisdiction of the matter. ¹

We have previously held that we would not in advance of a trial upon the merits of a criminal charge determine the constitutionality of the statute under which the defendant was charged. In State of Wyoming ex rel. Owen v. District Court of Sheridan County, Wyo., 393 P.2d 806 (1964), it is said:

'It is unnecessary to consider the question of the statute's validity on any basis since it is elementary that a writ of prohibition will issue only when the party seeking it is without other adequate means of redress for a wrong about to be inflicted by act of an inferior tribunal. * * * If by attacking a complaint upon constitutional grounds any person charged with a crime were able to cause the supreme court to proceed against the forum of the criminal action, the usual course in the administration of criminal law would be disrupted. No sufficient cause for the issuance has been presented, and the writ must be denied.'

In State ex rel. Sheehan v. District Court of the Fourth Judicial District, Wyo., 426 P.2d 431, 437 (1967), we said:

'Prohibition tests only jurisdiction. It will not issue where there is a plain, adequate and speedy remedy in the ordinary course of the law.'

In Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411 (1899) it is said that where a court proceeds in an unconstitutional manner the effect thereof is to destroy the jurisdiction of the court, so it follows that if the justice court was proceeding in an unconstitutional manner so as to deny the petitioner due process of law it would be a proper case for prohibition, provided that there is no plain, speedy, and adequate remedy in the ordinary course of law. As we were advised at the oral argument, petitioner is presently free on her own recognizance, but it was argued that there is no assurance that this condition will continue and that if after the preliminary hearing bond is required, defendant may not be in a position to deposit it. The possibility therefore exists that she could be deprived of her liberty pending final disposition of the charge. She is presently represented by court-appointed counsel, as assured by our law to protect the rights of needy persons, so we may agree with counsel that the requirement to deposit any surety or other bond in any material amount could present a problem that might result in her incarceration.

We think that Conkling v. De Lany, 167 Neb. 4, 91 N.W.2d 250 (1958) is pertinent on the question whether we should exercise jurisdiction. In that case contention was made in the district court that a justice of the peace was disqualified for personal interest in the outcome of the case, and a writ of prohibition against her was sought in district court. Upon denial of the writ, appeal was taken to the Supreme Court of Nebraska. The court said, 91 N.W.2d at 253:

'It is the general rule that prohibition cannot be resorted to when ordinary and usual remedies provided by law are adequate and available as it is not intended to be a substitute therefor. * * * However, the function of the writ, as evidenced by many cases herein cited, has been extended to cover situations where, even though the inferior tribunal had jurisdiction, the superior court deemed it necessary and advisable to issue the writ to prevent palpable and irremediable injustice, especially when it appeared there existed no adequate remedy by appeal or otherwise to prevent it from occurring.'

The court then continued, 91 N.W.2d at 256:

'A party has a right to have his case heard and determined by a judge who is not disqualified by interest from hearing and determining it. * * * As stated in Forest Coal Co. v. Doolittle, supra, 54 W.Va. 210, 46 S.E. 238, 239; 'The authorities almost uniformly hold that when a judge of an inferior court is recused (incompetent to act) before judgment in a case in which he has an interest, such as disqualifies him, and a prohibition is applied for to restrain him from further sitting in the cause, it will be granted, if, upon the application therefor, it appears that he is disqualified. 'Prohibition is the proper remedy to prevent action by a judge who is disqualified by interest or otherwise.' Works on Courts and their Jurisdiction, 638. 'A writ of prohibition will lie to restrain a judge from proceeding in an action in which he is disqualified by reason of interest, although the court over which he presides may have jurisdiction of the cause.' 23 Am. & Eng.Enc.Law, 2 Ed. 223."

The court then considered facts showing that the justice had decided a large number of cases in which she had been disqualified by personal interest and that the practice was continuing:

'* * * Under such a situation we think, because of the public interest and concern in every one charged with a crime being tried before a disinterested and qualified judge, that the only solution to this problem is to grant the writ and prevent appellee from acting further as a justice in all cases in which she is disqualified. This would not prevent the appellee from acting as justice of the peace in such cases if she removes her disqualification by having the requirements of section 29-2709, R.R.S.1943, complied with in each case.'

Taking judicial notice of our own records collated in the course of our supervisory powers over the justice of the peace courts, we note that at the present time there are 23 justices of the peace in this state who are members of the bar and 16 who are nonmembers. It therefore follows that the occasion for preliminary hearing before nonlegal justices could be fairly frequent and unless the question is now decided doubt upon the point may continue for some time, to the vexation of persons accused of felonies and the uncertainty of their attorneys as to the proper proceeding.

It is aparent that the issue involved in the application is one which, in view of Gordon v. Justice Court for the Yuba Judicial District of Sutter County, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72 (1974) may be consistently raised in all preliminary hearings in criminal cases where the justice of the peace is a nonlawyer. This indicates that the question is one of serious public interest and one that should be laid to rest at the earliest opportunity. While the question could have been saved and raised on appeal and any uncertainty concerning the petitioner's immediate status would have been eliminated by a finding by the justice of no probable cause for the criminal complaint, we believe that the circumstances of this case are sufficiently exceptional to justify exercise of jurisdiction in the first instance.

Proceeding to the merits of the cause, we conclude that the holding of a preliminary hearing or examination by a nonlawyer justice of the peace in a felony matter does not constitute a denial of due process and the application for writ of prohibition should be denied.

Since the 1869 enactment of laws for the territory of Wyoming, our law has directed that a person arrested for felony shall be taken before a justice of the peace for the purpose of inquiry into the complaint. 'If upon the whole examination, it appears that there has been no offense committed, or that there is not probable cause for holding the prisoner to answer the offense, he shall be discharged.' Chapter 74, § 36, S.L. of Wyoming 1869, now § 7-173, W.S.1957. If the justice finds such offense and probable cause to hold the suspect he is required to provide for proper bond in all bailable offenses. Generally speaking, these statutory provisions have remained in effect without substantial change since 1869. In 1972 this Court adopted the Wyoming Rules of Criminal Procedure, which in part superseded previous statutes but did not eliminate the provision just quoted. In pertinent part Rule 7(b), W.R.Cr.P. now provides:

'If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The...