State Ex Rel. Moats v. Janco

Browning, Judge,

dissenting:

I dissent. However, I am in agreement with all of the questions decided by the majority except the holding that the fees provided by Code, 50-17-11, as amended, hereinafter referred to as Section 11, disqualified the justice from acting in the case and rendered his judgment therein void. However, there is, especially in view of the very recent decision of Tate v. Short, 401 U.S. 395 (1971), much to be said for the position of the other dissenting Judge to the effect that the judgment of “thirty days or $50.00 fine” was void, therefore making it unnecessary to reach the question of the constitutionality of Section 11. If there had been a majority for holding the judgment void upon that ground I could have in good conscience gone along. However, I do not agree with the majority in evading one of the principal issues in this case which was the question of whether this indigent defendant was entitled to counsel at or before his arraignment. That question was decided by the trial court, it was assigned as error in this Court, and I am bewildered at the action of the majority in not passing upon that question and believe the reasons assigned for not doing so to be utterly without validity. The same Judges did pass upon that question as did the two dissenting Judges in this case when it was originally decided, *902 and it is my opinion that the majority Judges have left themselves open to the charge that they evaded and failed to decide that question in order that they could reach the issue of the constitutionality of Section 11 and thereby, by judicial fiat, destroy the justice of the peace system of this State.

This is the only reason given by the majority for not deciding whether the judgment of the justice was void because the defendant was not furnished with counsel at or prior to his entering his plea of guilty:

In the absence of a decision of the Supreme Court of the United States upon the question, in view of the conflicting decisions in the various jurisdictions, and inasmuch as a decision with respect to the right of the petitioner to the assistance of counsel to represent him in the criminal proceeding before the justice of the peace is unnecessary in the decision of this proceeding, that question is not considered or determined, and no opinion is entertained or expressed upon that question.

In two fairly recent cases, Winters v. Beck, 239 Ark. 1151 , 397 S.W.2d 364 (1965), cert. denied, 385 U.S. 907 (1966), and State v. DeJoseph, 3 Conn. Cir. 624, 222 A.2d 752 (1966), cert. denied, 385 U.S. 982 (1966), in which the defendants had been denied counsel in a state court upon trials for misdemeanors, the Supreme Court denied certiorari, thereby refusing to review the decisions of the lower court and strongly indicating that that Court has no intention of extending the rule in the Gideon case to misdemeanors. (In the Winters case, the defendant, although pleading not guilty, was denied counsel, convicted and given a 9-month jail sentence.) If this Court had decided the counsel question, reversed the judgment of the trial court and released the prisoner upon the ground that failure to provide him with counsel violated the due process clauses of the Constitution of the United States and of this State, then it could not have, for reasons hereinafter to be stated, reached the question of the constitutionality of Section 11 without overruling a long line of decisions of this Court.

*903 This is the fifth syllabus point of State ex rel. Titus v. Hayes, 150 W.Va. 151 , 144 S.E.2d 502 (1965): “When it is not necessary in the decision of a case to determine the question of the constitutionality of a statute, this Court will not consider or determine such question.” Five previous decisions of this Court are cited in support of that holding. Although, as stated in my dissent to the original majority opinion before the rehearing, the judgment of the justice was not void by virtue of the defendant not being furnished with counsel prior to his plea, the granting of the writ in this case upon that ground would not have been as disastrous to the judicial system of this State as the Court’s decision holding that the $2 and $.50 fees provided by Section 11, the receipt of which are contingent upon the conviction of a defendant, disqualifies a justice of the peace from sitting in a criminal case where there is a remote possibility that he may receive either or both such fees. However, I assume that even if we could have thereby avoided deciding these issues in this case, it would only have been a matter of time until both questions would have been presented in proper cases just as it will not be long before the counsel question will again be presented in a proper case.

To repeat, I am in firm disagreement with the majority in holding that the $2 and $.50 fees provided in Section 11 are violative of any provision of the Constitution of this State or of the United States. Even if the $2 and $.50 fees provided for in Section 11 were violative of the due process clauses of the Constitution of the United States and of this State upon a factual showing that a defendant’s rights had been adversely affected thereby, it is clear from this record that this petitioner cannot successfully contend that his rights were violated for reasons hereinafter to be stated. This is not a declaratory judgment proceeding and no person can avail himself of any constitutional guarantee unless he has been adversely affected by the provision of the Constitution upon which he relies.

The justice in this case could not possibly have been influenced in his decision by the possibility of receiving these fees inasmuch as the defendant pleaded guilty to the charge of driving a motor vehicle upon a public highway while *904 intoxicated. Actually he emphasized his guilt by saying that he was so drunk he did not know what road he was on when he was arrested.

It must be remembered that this is a collateral attack upon the judgment of the justice and that if appellant is to be released in this habeas corpus proceeding it must be upon the ground that the judgment was absolutely void. The majority held that the judgment was void because of the denial of due process of law as guaranteed by the Constitution of the United States and the Constitution of this State and based its conclusion upon the presumption that the justice convicted the defendant in the expectation or hope that he would thereby and thereafter receive the additional fees of $2 and $.50 as provided by the statute. It is clear by the record that he received neither the $2 fee nor the $.50 fee, and if he transmitted the record of the conviction, he did so at his own expense. It is certainly true that this justice could not have been influenced by any future expected financial gains by-accepting a guilty plea from this defendant. The defendant replied, when asked if he wanted to employ a lawyer, that he only had a “nickel” in his pocket. The record shows that defendant and his family were on “welfare.”

As is usual upon appeals and writs of error to this Court from a judgment of a circuit court, there are many assignments of error. I agree with the majority in finding that a justice of the peace need not be an attorney. I also agree with some reluctance that this justice imposed a valid sentence, thirty days, which he had a right to do under, the statute, even though the judgment is ambiguous. This, however, may be questionable in light of the aforementioned Tote case.

The conviction in this case for operating a motor vehicle upon a public highway while intoxicated is under the provisions of Chapter 17B, Article 3, Section 4, of the Code, as amended, and if the possibility in such a case that a justice might receive a fee of $.50 for certifying a transcript of his docket to the commissioner of motor vehicles and a fee of $2 if the defendant sought and was granted bond produced “a pecuniary interest in the justice which disqualifies him from *905 acting in the case,” as held in the fourth syllabus point of the majority opinion, then the same rule must apply to all criminal cases of which a justice has jurisdiction. Section 11, provides that “every justice shall be entitled to a fee of four dollars in each criminal case and proceeding before him,” which he shall receive whether he finds a defendant guilty or not guilty and that fee is paid by the taxpayers out of the county treasury. (Emphasis added.) But Section 11 provides for the fee of $.50 for making and certifying the transcript of his docket in any case to the clerk of the circuit court or other court or any other office in which he may be by law required to certify such transcript, and $2 for bond or recognizance to be paid by defendant. In no criminal case could the justice receive the $.50 fee nor the $2 fee unless he found the defendant guilty. Therefore, it would appear that this Court may have abolished the justice of the peace system insofar as it relates to criminal cases.

Even if the decision of the majority may be construed as applying the severability rule to the constitutionality of Section 11, that is, holding that the justice has jurisdiction in certain misdemeanor cases and is entitled to a fee of $4, but that the further provisions of the section permitting him fees of $2 and $.50 for services rendered subsequent to the entry of judgment are invalid, the effect on the judicial process of this State is just as devastating as if the whole section had been rendered invalid. The first part of the section clearly points out the duties to be performed by the justice from the issuance of the warrant to the final entry of judgment as being a part of the trial for which he earns the $4 fee. The opinion of this Court in Titus makes it clear that the $2 fee for bond and the $.50 fee for certification of a copy of the docket of the justice to the court of the county having jurisdiction of criminal appeals is not a part of the trial and it cannot be taxed as costs against the defendant. The same rule will apply, of course, to the $.50 fee for supplying a copy of his docket showing a conviction for driving drunk to the commissioner of motor vehicles. It is evident then if the justice cannot receive any compensation for services rendered subsequent to the trial as provided by this section then he being a constitutional *906 officer whose only compensation is by means of the fee system, he could not be required to perform the services and pay the expenses of preparing a copy of his docket and transmitting it to the court or administrative official which the section provides that he shall do. The decision of the majority upon this issue may have created a dilemma that not even the legislature can resolve, for if the legislature should amend Section 11 to provide that the $2 and $.50 fees provided for therein shall be paid out of the county treasury as is the $4 fee for trial of a criminal case by the justice and not to be paid by the defendant, that would merely compound the invalidity of those fees, if it may be assumed or even presumed that justices decide cases before them not upon the law or the evidence but in such manner as provides them the highest financial returns. If those fees were to be paid out of the county treasury, there would be more temptation for the justice to find a defendant guilty than at present, for then he would know that all he had to do to receive his fees would be to file his bill with the county court at the end of each month and it would be paid. Under the present provisions of the statutes, as was held in Titus, the defendant does not have to pay the $2 fee in order to give bond, and he cannot be punished by imprisonment or otherwise for failure to pay that fee. To repeat, I would assume that the same rule would be applicable to the $.50 fee for supplying a transcript of the docket of conviction to the commissioner of motor vehicles.

Under the present statute the defendant at least is responsible for payment of the fees if the justice can collect them, but now that the majority has held that they are in violation of the constitution, it would appear that the justice cannot by mandamus or otherwise be required to employ clerical assistants at his own expense to prepare such information and send it to the places provided for by the Code. The effect of the decision will be calamitous not only to justices of the peace but to police officers, prosecuting attorneys, the commissioner of motor vehicles, courts of record having criminal jurisdiction (most of whose dockets are already overcrowded), and, probably most of all, the plaintiff in eveiy criminal case, whether it be a felony or a misdemeanor, the people of the State of *907 West Virginia. I am in agreement with decisions of this Court and the courts of other jurisdictions cited in the majority opinion in support of its holding upon this issue, but I am firmly of the opinion that not one is remotely in point.

This Court unanimously held in State ex rel. Osborne v. Chinn, 146 W.Va. 610 , 121 S.E.2d 610 (1961), that an act of the legislature providing for justices of the peace of Kanawha County to be paid salaries solely out of a separate or special fund, the fund to be created from fines, fees, costs and other monies obtained from cases tried by justices of the peace, was violative of the due process clauses of the state and federal constitutions. If there was not sufficient money in that fund to pay the salaries of the justices, there was no provision for the payment thereof.

In Williams v. Brannen, 116 W.Va. 1 , 178 S.E. 67 (1935), an act of the legislature which provided only two sources of compensation by a justice of the peace in misdemeanor cases, (1) costs paid by the accused when convicted, and (2) a fund accumulated in the office of the sheriff of the county from fines assessed by the justice, was held to be in violation of the constitution. Neither of those cases is in point inasmuch as the present statute provides that the justice of the peace shall be paid a fee of $4 for the trial of a misdemeanor case whether he finds the defendant guilty or not guilty, and his compensation comes from the general revenue fund of the county and it is not dependent whatever upon the number of convictions that he or other justices may have rendered.

In Tumey v. Ohio, 273 U.S. 510 (1927), a statute provided that a mayor of a town receive no compensation for trying a criminal case unless he found the defendant guilty. The Court, of course, held that statute to be in violation of the Constitution of the United States. In Doty v. Goodwin, 246 Ark. 149 , 437 S.W.2d 233 (1969), the Supreme Court of Arkansas, logically held that a statute which provided that a defendant, if convicted by a justice of the peace, was required to pay the fee of the justice for conducting the trial was violative of the constitution of that state and of the United States. The majority cites no other cases in support of its decision upon this *908 issue. It is my opinion that neither of the fees involved in this case violates any provision of the Constitution of the United States or of this State. Furthermore, it is my opinion that the $2 and the $.50 fees are so small that they may be properly ignored as within the maxim de minimis non curat lex. Incidentally, in the Tumey case, cited in the majority opinion as authority for holding the fees in Section 11 to be violative of due process, the court stated that if the fees were of a de minimis nature they would come within that rule and not be violative of due process. The fees in the Tumey case amounted to $12, several times the fees provided by Section 11.

If it may be presumed (apparently the majority has so presumed) that a justice of the peace, a constitutional officer elected by the people, would, in a criminal case, disregard the law and the evidence and violate his oath of office and find a defendant guilty when he was of the opinion that he was not guilty in order to enrich himself by the possibility of receiving the $2 and $.50 fees, it may be difficult' for the majority to distinguish the rule laid down in this case in criminal cases from the trial of civil cases of which justices of the peace have jurisdiction in a limited degree. In civil cases the justice receives compensation for trial of the case regardless of whether he finds a judgment for the plaintiff or the defendant just as in a criminal case, but if he finds judgment for the plaintiff, it is probable, not just “remotely possible,” that under the provisions of Chapter 50 of the Code, the justice may receive additional costs or “fees,” for example, for issuing execution upon the judgment for sale of the defendant’s property to satisfy the judgment or for attachment of the defendant’s wages to satisfy the judgment. The possibility of additional financial enrichment by finding a verdict for a plaintiff in a civil case far exceeds that for finding a defendant guilty of a charge of drunk driving, for example, or for any other misdemeanor. A litigant may be deprived of .due process of law in a civil case as well as in a criminal case.

It may be true that the office of justice of the peace is outdated, that it should be abolished and that courts of record should be created having jurisdiction of misdemeanors and *909 limited jurisdiction in civil cases perhaps similar to or greater than the jurisdiction now conferred upon justices of the peace. However, this Court does not have the authority to abolish that office, nor does the legislature. It is a judicial office and is clearly provided for under Article VIII, Section 1 of the Constitution of this State which provides, “The judicial power of the State shall be vested in a supreme court of appeals, in circuit courts and the judges thereof, in such inferior tribunals as are herein authorized and in justices of the peace.” For 90 years that provision in that article relating to justices of the peace has not been disturbed and only the people by their vote, if the question is submitted to them by the legislature, can abolish that office. Furthermore, the legislature has not seen fit to compensate justices of the peace (except in counties having a population of 200,000 or more and there is only one such county in the state) except by the fee system. This Court does not have the authority to change that manner of compensating justices of the peace unless, of course, an act of the legislature is clearly in violation of the constitution, although the presumption is always to the contrary.

My astonishment at this incredible decision of this Court which in effect abolishes the constitutional office of justice of the peace which, as heretofore stated, is provided for in the same sentence of the Constitution which created this Court, is such that for once I am speechless. Fortunately, I do not have to speak, for my position is eloquently expressed by the language used in the dissenting opinion of Lance v. Board of Education of County of Roane, 153 W.Va. 559 , 170 S.E.2d 783 (1969):

I am amazed, shocked and deeply distressed at the unprecedented and constitutionally unauthorized decision of the majority of this Court in this proceeding by which it undertakes to invalidate certain statutory provisions and two provisions of Sections 1 and 8, Article X of the Constitution of this State. By my oath of office as a Judge of this Court, which I consider binding in conscience, I swore to support, not to invalidate, the Constitution of this State and, with all the sincerity at my command and upon grounds and for reasons to be stated in this dissent, I dissent from the decision of the majority. It should be clearly *910 understood that in expressing my dissentient views, however, in this honest and sincere disagreement between my associates and me, my criticisms are directed, not to them, but to their decision.

With respect to the sanctity of an official oath to support a Constitution, the great Chief Justice, John Marshall, in the landmark case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 , at page 178, 2 L. Ed. 60 , used this language: “Why otherwise does it [the United States Constitution] direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!” Though these remarks were directed to the oath to support the Constitution of the United States they are applicable to an oath to support the Constitution of this State.

The Constitution of- West Virginia is the fundamental, organic law of this State. It was made by the sovereign people of West Virginia and by them alone; and only the people of West Virginia, not this Court, can unmake that Constitution. It, and it alone, creates, maintains and preserves this State as a sovereign governmental entity and without it, intact and unimpaired in all its parts, this State can not exist or function as a sovereign governmental entity. All the departments and offices of the State Government of West Virginia, including its executive, its legislative and its judicial branches, are created by that Constitution and the power and the authority, in their entirety, which any of them possesses are' derived solely from that Constitution and from no. other source. That Constitution is equally binding on all the political subdivisions of the State and upon its courts, and every officer and every citizen within its territorial limits.

To say that this Court, the creature of the Constitution from which it derives all the power and the authority which it possesses, may invalidate that Constitution or any of its provisions, is incredible beyond my power of belief and any such utterance does not make sense to me.

That this Court is without authority to invalidate the Constitution of this State or any of its provisions *911 is clear to me beyond question. Manifestly it derives no such power from the Constitution of this State or from any agency of the Federal Government. On the contrary, such power is denied it by express provisions of the Constitution. The people of this State, and they alone, possess that power to the exclusion of all governmental instrumentalities of the State.

Article IV, Section 5 of the Constitution of this State provides that every person elected or appointed to any office, before proceeding to exercise the authority or to discharge the duties of such office shall make oath or affirmation that he will support the Constitution of the United States and the Constitution of this State, and that he will faithfully discharge the duties of the office to the best of his skill and judgment. Under that provision any vote or act of any officer of this State, including all its judges, which operates to invalidate the Constitution or any of its provisions is ineffective and of no force or effect.

That no judge or other officer of this State can act as such in any manner to invalidate or nullify, change or amend any provision of the Constitution of this State is manifest by Sections 1 and 2, Article XIV of the Constitution by which the people reserve to themselves the exclusive right and power to alter or amend the Constitution and provide the manner in which any alteration or amendment shall be made. Those methods, which are exclusive, are ratification by a majority vote of the people of this State, at an election for the purpose, of acts or ordinances of a Constitutional Convention created in the manner provided by the Constitution and submitted to the people, and ratification by a majority vote of the people of this State, at an election for the purpose, of any amendment proposed by the Legislature. The action of the majority in undertaking to invalidate the constitutional provisions here under consideration is contrary to and violative of the constitutional provisions to which I have referred, and all such action is null and void and of no force or effect for that reason alone.

That this Court is without authority to invalidate any provision of the Constitution of this State is also indicated by the historical record that no judge of this Court in any of the more than 13,000 cases that have been decided by it during the period of 106 years of its existence has ever voted or acted to invalidate *912 any provision of the Constitution of this State; and until the present decision in this case none of the total number of fifty judges of this Court during its entire period of existence has ever engaged in or taken such action.

To the contrary, this Court in its prior decisions has uniformly held that this Court does not have the power to amend, alter or repeal any provisions of the Constitution of this State and that the provisions of that Constitution are binding upon all departments of government of this State, all its citizens, and all persons whomsoever within its jurisdiction.

(Incidentally, I agreed with the dissenting Judge when that case was decided in the conference room. However, when the majority opinion was prepared, I reluctantly decided to go along in the hope that the Supreme Court of the United States would make a final adjudication of this question, and the case is at this moment pending in that Court. In retrospect I regret not having authorized the dissenting Judge to note that I, too, dissented and joined in the views expressed in his dissenting opinion.)

Inasmuch as the Court did not decide the question of whether the judgment was void for the reason that this indigent defendant was not furnished with counsel, I have refrained from citing authority herein upon that issue as I did in my dissent to the original holding of the Court prior to the rehearing. In my opinion, the majority should likewise have refrained from discussing that question and citing authority relative to it.

For the reasons hereinbefore stated, I would affirm the judgment of the Circuit Court of Monongalia County.'