Appellants Brief — Patterson v. Warner

Supreme Court brief1973

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MICHAEL NOBAX, .

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

;

No. 72-5830 4

;

‘

CLOVER PATTERSON,

Appellant,

v. ‘

GEORGE WARNER, Individually and in his official ;

capacity of Justice of the Peace of Kanawha :

County, Louden District, West Virginia, and ;

GRAHAM MOTOR COMPANY, a corporation, i

Appellees. 4

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BRIEF FOR APPELLANT

PUEDE PSS Sere

Of Counsel; GEORGE R. HIGINBOTHAM

PAUL J. KAUFMAN ;

ROBERT B. KEITER 1116-B Kanawha Blvd.., E.

1116-B Kanawha Blvd., E. Charleston, W.Va. 25301 ;

Charleston, W.Va. 25301 Attorneys for Appellant.

a kes

| (i)

INDEX

gS Pare

te ok er Seis la%, bv by ok occ ob ss we 6

ARGUMENT

I. Due process demands a hearing appropriate to

the nature of the case, and, because of the

nature of the justice of the peace system, a

meaningful hearing includes appellate review ...... . 8

A. The decision of a justice of the peace,

because of his lay-judge status, does not in

and of itself deny due process, but the bar

to review of such a judgment by a learned

judge is contrary to due process of law ........ 9

B. The appellate process offers the only

viable avenue of attack upon the decision

of a justice of the peace that is void

because he possesses a financial interest in

the outcome of appellant’scase ..........., 17

Il. The interests of the appellant in review of the

judgment of a justice of the peace is protected

by the Due Process Clause of the Fourteenth

IE oo yoy ey oe Sb kno os 20

A. The nature of the appeal bond requires

access to a court of record for the

I sla ene yo ee Gh po so oie Boy boo ees 20

-—

en ee

be: Ai meee

(it)

B. Because appellant has been denied a fair

and adequate trial due process will strike

at any impediment to a hearing appropri-

ate to the nature of appellant’s case ..........

II]. Since the statutory double appeal bond re-

quirement infringes upon appellant’s interest

in access to the courts and cannot be justified

by either a rational or a compeiling state

interest, it therefore contravenes appellant’s

constitutional guarantee to equal protection

RS Pn ais ia oral a ee ose 6 6 > 6 ?

A. Access to the courts represents a funda-

mental interest guaranteed by the Equal

yo Pe cee a are area oe

B. The double appeal bond requirement is

not reasonably related to a legitimate

state interest and consequently fails to

meet the more stringent compelling state

ee eee erie ee eae eee

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25(1972) .....-----++-

Armstrong v. Manzo, 300 U.S. 545 (1966) .........----

Barbier v. Connolly, 113 U.S. 27 (1884) ............ 26,30

Beers v. Beers, 4 Conn. S35 (IGZ3) 2. ccc ce neeee

Bendheim Bros. & Co. v. Baldwin, 73 GA. 594 (1884)...---

Beverly v. Scotlan Urban Enterprises, 402 U.S. 955

Hie eee were bonne ae eee ea

Boddie v. Connecticut, 401 U.S. 391 (1971) ........--5:

Brotherhood of RR. Trainmen v. Virginia, 377 U.S. |

Oe Saletan SARI HAL Ged EP ae ee

(iii)

Brooks v. Small Claims Court, 105 Cal. Rptr. 785, F

ee Deere Rk PR eee OF 7: | 21 ;

Burns v. Ohio, 360 U.S. 252(1959) ................, 36

Capitol Transaction Co. v. Hof, 174 U.S. 1 (1899)... 2... 14 ;

Chambers v. Baltimore & Ohio Ry., 207 U.S. 142 ...... 26.30

Chambers v. District Court of Dubuque, 152 N.W.2d

<n eghh Sahat ft GE ETE eT Ee REET Ce 30 E

Chewning v. Tomlinson, 105 W. Wa. 76, 141 S.E. 532 .

Sg Mita Reg EO ie Sete pt GP ae Beg Net dae eA. f

Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949)... 28 .

Douglas v. California, 372 U.S. 353 (1963) ......... eee

Edwards v. California, 314 U.S. 160 (1941) ............ 35 q

Estes v. Texas, 381 U.S. 532(1965) ................. 23

Evans v. Taylor, 28 W. Va. 184(1886) ............. 16,19

Federal Power Commission v. Florida Power & Light

Co., 404 U.S. 453 (1972) reh. den. 405 U.S.948....... 25

Frederick v. Schwartz, 402 U.S. 937 PEOOO. cae s ae, 25

Gaines v. Hawkes, 153 W. Va. 471. 170 S.E.2d 676

ie rth eee rr oxy ck. ee

oS A). re 1]

Gideon v. Wainwright, 372 U.S. 342(1963) .......... 10, 23

Greenbrier Valley Bank v. Holt, 114 W. Va. 363, 161

MEMOIRS ootN ace ke A ae 21

Griffin v. Illinois, 351 U.S. 12(1956) .............. 30. 36

Gulf, Colorado & Sante Fe Ry. v. Ellis, 165 U.S. 150

PN ie er re iG co on ka a ae

Harper v. Virginia Board of Elections, 383 U.S. 663

cM AURORA ED eevee WT arn ae re neng eo mn aoa

Huffman v. Boerson, 406 U.S. 337 SOP TRR: eee see 25

tS LS

CL, ee

eral

(iv)

Jack Spring v. Little, 280 N.E.2d 208 (1972) .........3 30, 36

James v. Union Guano Co., 264 U.S. 171 (1924) ......... 29

Jeffrey v. Jeffrey, 296 N.Y.S.2d 74, 57 Misc. 2d 416

ay meas Werk whale Rk ea hea a Pace 30

Kramer v. Union Free School District, 395 U.S. 621

PUN ag age Set EN ye ok a aoa Sb 64s oS 29

Loe ¥. Meo, 424 F. 20 G91 (ISTO) 2. ww eee. 30

Lindsey v. Normet, 405 U.S. 56 (1972) .......... 33. 35. 36

McDonald v. Beard of Education, 394 U.S. 802

Se ee eA ork a Wind Ow are ack Oe Ow en oe 29

McGowan v. Maryland, 366 U.S.420(1961) .........., 9

Martin v. Superior Court, 176 Col. 289, 168 P. 135

RES ARE aPC ar stag a er 30

Mayberry v. Pennsylvania, 400 U.S.455(1971) ......... 4

Meltzer v. LeCraw, 402 U.S.654(1971) .............. 35

Mullane v. Central Hanover Bank & Trust Co., 339

ae re I ee a ee 14

Murchinson, In re, 349 U.S. 133 (1955) ............... 3

NAACP v. Button, 371 U.S. 415 (1963) ............ 10, 30

Ortwein v. Schwab, US. _—_, 93 S.Ct. 1172

ERS ee ee

People ex rel Mann, 97 N.Y.533 (1892) .............. 12

Powell v. Alabama, 287 U.S. 45 (1932) ............... 10

Powell v. Miller, 41 W. Va. 371, 23 S.E. 557 (1895) ....... 4

Richmond v. Henderson, 48 W. Va. 389, 37 S.E. ©53

SN ae NS k wlar cles ie kas Rae eS 8, 11, 15, 27, 28, 30

Rideau v. State of Louisiana 373 U.S. 723 (1963) Phelan: ae

Roberts v. Superior Court, 264 Cal. App. 2d 282, 70

re i re ae ee ee 30

Shapiro v. Thompson, 394 U.S. 618 (1969) 29, 36, 38

(y)

Shelton v. Tucker, 364 U.S. 479 (1960) ............. 36, 38

Smith v. Bennett, 365 U.S. 708 (1961) ............... 36

Staats v. McCarthy, 130 W. Va. 240, 43 S.E.2d 826

2 said MEE NRL ee CERO REECE ee Ee,

State ex rel Moats v. Janco, == W.Va. —-, 180

eae TOROU TE ec iach a ce ac ce cane, S, 9, 14, 17

Truax v. Corrigan, 257 U.S. 312(1921) ............. 26.30

Tumey v. Ohio, 237 U.S.510(1927) .............. 18, 23

Turner v. State of Louisiana, 379 U.S. 466 ( | ra 23

United States v. Kras, =US. —. 93 S.Ct. 631

| SE TE Eee eS. ae

United Mine Workers v. Ill. State Bar Assoc., 389 U.S.

WEMNUIPEE Phinney CO od wie aA Sey hey & 10

Ward v. Village of Monroeville, Ohio, U.S. er

PU NR ae ee a i ae a kip 18

Ward v. Winchester, 11 Va. L. Reg. 501 (1902) .......... 10

White v. Maryland, 373 U.S. 59(1963) ............... 24

Wilfong v. Jackson, 120 W. Va. 328, 198 S.E. 134

pein REE EOL Oi Def ghey er el 24

Williams v. Brannen, 116 W. Va. 1, 178 S.E. 67

SPUR EP SEG Wh We ha wie aw SAS ru aeons es 20

Worley v. Easley, 123 W. Va. 1, 13 S.E.2d 158 | Pa 24

Statutes:

Federal

Og tt | ee 2h ee On Ld, 2

RMN gra hee ae | 2

tipo |, Se an At ene A es 2

eM Oy 8 eed iy se civ ine eres 2

neal a SO OD ee a RO 2

MOM chin. st Cece arn ee ee a 2

PRBS R PR AEE S

(yu)

State

to tk LS Sr |

ok Yh as 28

West Virginia Code 50-15-2 coe kee ORME okt eK ee

West Virginia Code 50-17-12... 2... 0... eee. 17

Rk 21

West Virginia Code $8-4-13 .................... 28

Other Authorities:

Curl, A Challenge for Unremitting Activity For

Reform of Lower Courts, 50 W. Va. L. Q. 106

SUN cde aly MCA we Witke se ee et ol eee 9

Davis, Administrative Law, Exhaustion §20.03 ....... 25

Developments in the Law—Equal Protection 82 Harv.

re ee eee 3]

Silverstein, Small Claims Courts versus Justices of the

Peace, 53 W. Va. L. Rev. 241 (1956) ........... 8

Smith, The Justice of the Peace System, 15 Cal. L.

BORE wow eC WE CER EONS ek ek 13

Pound, Essays on Jurisprudence from the Columbia

PE I a ae sk ok ok a cae ews 12

West Virginia Blue Book, Vol. 53-56 (1969- i ee 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-5830

CLOVER PATTERSON,

Appellant,

WV.

GEORGE WARNER, Individually and in his official

capacity of Justice of the Peace of Kanawha

County, Louden District, West Virginia, and

GRAHAM MOTOR COMPANY. a corporation,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BRIEF FOR APPELLANT

OPINION BELOW

The opinion of the United States District Court for the

Southern District of West Virginia, entered on September

13, 1972, is unreported, however it is reproduced in the

Single Appendix.

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PREP BOLT LFA SEP RPE RARE AY

PETE PN REHEAT HR AS aan met

SA TO AE A —-_ mm

JURISDICTION OF THIS COURT

The jurisdiction of this Court is invoked pursuant to

Title 28. United States Code, Section 1253, which

authorizes a direct appeal from a judgment by a

three-judge district court denying 2n injunction restrain-

in, the enforcement of a state statute. The Court below

was a statutory three-judge panel convened pursuant to

Title 28, United States Code, Section 2281, ef seq. which

dismissed appellant's action seeking to hold the require-

ment of posting a bond double the amount of the

judgment in order to perfect an appeal from a judgment

rendered by a justice of the peace in a civil action as

violative of the due process and equal protection guaran-

tees of the Fourteenth Amendment to the United States

Constitution. The District Court’s jurisdiction was in-

voked pursuant to Title 28, United States Code, Sections

1343, 2201. and 2202, and Title 42, United States Code,

Sections 1981, 1983, and 1989.

The District Court judgment was entered on Septem-

ber 13, 1972; appellants notice of appeal was filed on

October 24, 1973; the case was docketed in this Court on

December 6, 1972, as No. 72-5830: probable jurisdiction

was noted March 26, 1973.

PROVISIONS OF THE UNITED STATES

CONSTITUTION

Fourteenth Amendment:

Section 1. Citizenship: privileges and immunities:

due process; equal protection. All persons born or

naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

oO SS

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law: nor

deny to any person within its jurisdiction the equal

protection of the laws.

STATUTE INVOLVED

West Virginia Code 50-15-2:

The appeal shall not be granted by the justice

unless, within ten days after the judgment is

rendered or revived or an order is entered refusing to

set aside a judgment, bond with good security. to be

approved by the justice, in a penalty double the

amount of the judgment, is filed with him. with

condition to the effect that the person proposing to

appeal will perform and satisfy any judgment which

may be rendered against him on such appeal by the

court to which the appeal is taken as provided in

section one [ §50-15-1] of this article. or if he does

not wish to stay the execution on such judgment,

with condition to pay the costs of such appeal if the

judgment appealed from be affirmed. In case there

be judgment before the justice against the plaintiff

for costs only, and the plaintiff desires to appeal,

the bond shall be for costs, conditioned as aforesaid.

and in a penalty not exceeding one hundred dollars.

In suits for the forcible or unlawful entry upon land.

or for the unlawful detention of real estate. if

judgment be rendered for recovery of possession of

the premises, either with or without damages for

detention, the bond shall be in a penalty double the

amount of the damages, where judgment has been

rendered for damages for the detention. together

with an amount sufficient. in the opinion of the

justice, or of the circuit or other appellate court or

judge thereof, when the appeal is granted by such

court or judge, to cover one year's rent of the

— ia, ae

premises. In such suits where the judgement is not

for damages for detention the bond shall be in a

penalty equal to an amount sufficient, in the

opinion of the justice, or of the circuit or other

appellate court or judge thereof, when the appeal is

granted by such court or judge, to cover one year's

rent of the premises, and an additional sum of not

less than fifty nor more than one hundred dollars.

PROVISIONS OF THE WEST VIRGINIA

CONSTITUTION

Article VII, Section 28:

The civil jurisdiction of a justice of the peace shall

extend to action of assumpsit, debt, detinue and

trover, if the amount claimed, exclusive of interest,

does not exceed three hundred dollars. The jurisdic-

tion of justices of the peace shall extend throughout

their county: they shall be conservators of the

peace and have such jurisdiction and powers in

criminal cases as may be prescribed by law. And

justices of the peace shall have authority to take the

acknowledgement of deeds and other writings.

administer oaths, and take and certify depositions.

And the legislature may give to justices such

additional civil jurisdiction and powers within their

respective counties as may be deemed expedient.

under such regulations and restrictions as may be

prescribed by general law, except that in suits to

recover money or damages, their jurisdiction and

powers shall in no case exceed three hundred

dollars. Appeals shall be allowed from judgments of

justices of the peace in such manner as may be

prescribed by law.

PO EE A eR

QUESTIONS PRESENTED

1. Whether it is logical to provide, as a matter of due

process, the right to be represented by counsel in civil

cases, and to require such representation in criminal

cases, but to deny the right to have a case decided by one

learned in the law?

2. Because of the historical antecedents of the present

day justice of the peace system, did the framers of West

Virginia’s constitution intend to include review as a

matter of right, and as a matter of choice, in the judicial

process.

3. Whether the financial interest of a tribunal in the

outcome of a case is so prejudicial as to deny appellant

due process of law?

4. If there exists in West Virginia an absolute right of

appeal in the justice of the peace system. and if there

exists an interest in the appellant in having his case

adjudicated by a fair and adequate tribunal, are these

interests so significant as to be deemed fundamental?

5. Will due process strike at any bar to access to the

courts when a fundamental interest is involved?

6. Given the appellant’s fundamental interest in access

to the courts, does the state have any compelling interest

in maintaining the double bond provision that conditions

his access to a court of record?

7. Does the double appeal bond requirement bear a

reasonable relationship to the state’s interests in protect-

ing monetary judgments, safeguarding its judicial system

or offsetting its court expenses?

STATEMENT OF THE CASE

In November of 1968 appellant purchased a used

automobile from appellee Graham Motor Company by a

conditional sale with the balance due represented by a

negotiable promissory note. Subsequent to the delivery

of the vehicle and prior to full payment on the contract,

appellant encountered numerous mechanical defects in

the car, and, after being unable to obtain satisfaction

from his vendor, appellant repudiated his agreement with

appellee. Appellant then made no further payments on

the contract.

On October 23, 1969, appellant received notice to

appear in the court of appellee Justice of the Peace

George Warner in order to answer a law suit filed against

him by appellee Graham Motor Company. Appellant

appeared and asserted various defenses to Graham Motor

Company’s claim upon the above described contract,

however judgment was cast against appellant in the

_amount of three hundred dollars ($300.00). Appellant,

believing an injustice had been worked against him,

sought to appeal his case in order to be heard before a

learned judge in a court of record. But, in order to

perfect his appeal, appellant was required to satisfy a

statutory bond requirement in the amount of six hundred

dollars ($600.00), twice the amount of the judgment.

Because of appellant’s poverty he was unable to meet this

condition of appeal.

Prior to execution upon the judgment, appellant

sought, and was granted a hearing by a three-judge

Federal District Court upon his application for injunctive

and declaratory relief on grounds that his civil rights were

being denied. There it was held that the double-bond to

appeal provision in the West Virginia Code was constitu-

tional, and all relief was denied. This appeal was then

filed.

oe er

ee one rete os

SUMMARY OF ARGUMENT

The West Virginia Constitution provides for what is in

essense two systems of trial courts in the state: courts of

record, and courts not of record. The latter is a justice of

the peace system, an anachronism which provides only

for a hearing before a lay-judge. Because a justice of the

peace with civil jurisdiction was unknown at common

law, the state constitution further provides for review of

the decision made by the lay-judge in a court of record

before a learned-judge. This review, a trial de novo, also

allows the appellant to be heard in a tribunal that has no

pecuniary interest in the outcome of the case. However,

when the framers of the West Virginia Constitution

provided a litigant access to the system of courts of

record, they also allowed the state legislature to regulate

an appellant’s avenue to such a hearing by procedural

devices. Appellant contends that the imposition of a

statutory double appeal bond is not a reasonable regula-

tion and denies him due process and equal protection of

the law.

In the due process argument appellant contends that

because of the nature of the justice of the peace system.

appellate review is part and parcel of the whole hearing

process, and therefore rises to a fundamental interest that

may not be denied by an arbitrary cost requirement that

impedes access of an indigent to a fair and adequate

hearing.

In the equal protection argument appellant asserts that

the double bond requirement infringes upon his funda-

mental interests in access to the courts and cannot be

justified by either a rational or a compelling state

interest.

CC nt

DUE PROCESS DEMANDS A HEARING APPROPRI-

ATE TO THE NATURE OF THE CASE, AND

BECAUSE OF THE NATURE OF THE JUSTICE OF

THE PEACE SYSTEM, A MEANINGFUL HEARING

INCLUDES APPELLATE REVIEW.

The justice of the peace system as originally instituted

in the United States played an important role in local law

enforcement. In the formative years of this country the

lack of attorneys and the relative isolation of the various

settlements along the eastern seaboard required the

transplanting of a system of readily accessible small

courts from their origin in medieval England to the

American Colonies. And for these same reasons the

framers of the West Virginia Constitution saw fit to retain

the office of justice of the peace. Silverstein, Sruall

Claims Courts versus Justices of the Peace, 53 W. Va. L.

Rev. 241. 242 (1956). Thus the State Constitution now

provides for what is in essence two systems of trial

courts: courts of record—circuit courts and various

inferior tribunals—and courts not of record —justices of

the peace. Constitution Article 8, Section 1: Richmond

y. Henderson, 48 W. Va. 389, 398-399, 37 S.E. 653

(1900).

Courts not of record are presided over generally by a

lay judge, See State ex rel. Moats v. Janco, ____ W.. Va.

_ , 180 S.E. 2d 74, 78 (1971); and since a justice with

civil jurisdiction was unknown at common law. Rich-

mond, supra, Article 3, Section 28 of the State Constitu-

tion provides for review of a justice’s decision in a court

of record. However, when providing an avenue to a court

of record, the framers allowed the legislature to prescribe

the manner in which an appeal ~.\y be taken. The

question posed here is whether the double-bond require-

ment, Code 50-15-2, is merely a procedural device that

regulates appellant’s access to the courts or whether it

acts as a bar to the entire process and is therefore in

excess Of a legislature’s power to regulate judicial

procedure.

A. The Decision of A Justice of the Peace.

Because of His Lay-Judge Status, Does Not in

and of Itself Deny Due Process, But the Bar To

Review of Such A Judgment by A Learned

Judge Is Contrary to Due Process of Law.

The justice system in England had special safeguards to

prevent abuses that were never adopted in West Virginia.

For example the selection and qualification of the justice

was all important. As one commentator has pointed out:

“two or three of the best reputation in each

county” were to be selected. They were to be “of

the best reputation and most worthy men in the

county”, and as if even that had proved inadequate

more stringent requirements were set up by a later

statute which ordered them to be “of the most

sufficient knights, esquires, and gent]:men.” Curl, A

Challenge For Unremitting Activity for Reform of

Lower Courts, 50 W. Va. L. Q. 106, 121 (1947).

However, today, as the West Virginia Supreme Court

noted in State ex rel. Moats v. Janco, supra, there are no

qualifications prescribed for justices of the peace. Neither

the state constitution, state statutes nor the common law

set forth any eligibility requirement (except that he

“shall reside in the district for which he is elected.”

Const. Art 8, §27) so tKat “it is possible, unde: our

system, to elect to this office a man or woman who can

neither read nor write. Just anybody can be elected

.... 50 W. Va. L. Q. supra, at 112. And, in that as of

the time this action arose, and, in that as of the time of

this appeal, there is only one justice in the entire State of

West Virginia who was or is an attorney,' appellant

suggests that appellee Justice Warner is not competent to

adjudge the underlying merits in this matter to a

conclusion without some form of review by a learned

judge.

It has long been recognized that attorneys are more

capable of handling legal matters than are laymen. This

fact is the basis of the constitutional right of a party ina

civil suit to be represented and heard by counsel. NAACP

v. Button, 371 U.S. 415, 429 (1963); Brotherhood of RR

Trainmen v. Virginia, 377 U.S. 1, 6-7 (1964); United

Mine Workers y. Ill. State Bar Assoc., 389 U.S. 353, 356

(1967); Ward v. Winchester, 11 Va. L. Reg. 501 (1902).

Indeed, the difference in competence is so great that in

the area of criminal proceedings this Court has recently

determined that lawyers must not only be provided for

indigent defendants in felony matters but also in mis-

demeanors where a loss of liberty is likely. Argersinger v.

Hamlin, 407 U.S. 25, (1972). There Mr. Justice Douglas,

quoting Powell v. Alabama, 287 US. 45, 68 (1932) and

Gideon vy. Wainwright, 372 U.S. 342, 344 (1963) stated:

The night to be heard would be, in many cases, of

little avail if it did not comprehend the right to be

heard by counsel.

* * * * *

‘In a negative manner, the official state register, West Virginia

Blue Book, volumes 53-56 for the years 1969-1972, indicates that

Carrol T. Lay of Summersville District, Nicholas County, is the

only licensed attorney in the office of justice of the peace.

wa s

...in Our adversary system of criminal justice any

person haled into court, who is too poor to hire a

lawyer, cannot be assured a fair trial unless counsel

is provided for him. 407 U.S. at 31.

Surely it is illogical to guard so jealously a party’s

constitutional right to be represented in civil and criminal

matters, and yet to forbid the party by what purports to

be a procedural device from having his case heard by an

attorney judge. To suggest that the lawyer's role is

somehow constitutionally more significant than the role

of the judge renders the right to counsel of little avail if

the presiding judge is incapable of understanding argu-

ments advanced by counsel. Cf. 50 W. Va. L. Q. at 121.

(remarks of Judge Simms)

The distinction in ability between an attorney-judge

and lay-judge was recognized by the Court in a case

involving what has traditionally been regarded as a civil

matter: juvenile proceedings. /n re Gault 387 U.S. 1, 17

(1967). In Gault this Court took special note of the

general absence of judicial qualifications in juvenile

matters, and particularly the non-attorney status of many

juvenile judges. 387 U.S. at 14, fn. 14. This lack of

“expertise, the keystone of the whole venture.” led the

Court, among other things, to conclude “that unbridled

discretion, however benevolently motivated. is frequently

a poor substitute for principle and procedure.” /d. at

18.7 What is left then in the lay-judge situation, is not

7In 1900 the West Virginia Supreme Court in Richmond y.

Henderson, supra, noted the disparity between courts of record

(presided over by a learned judge) and a justice of the peace court

(presided over by a lay judge) when it was concluded that because

the justice system with civil jurisdiction was unknown at common

law, and a (then) recent amendment to the state constitution did

not elevate the status of the justice court to that of a court of

ws ow. -

FD | enh AAT a) ee 4 LRA

rule by law but a latitude of decision-making that may

best be characterized as rule by fiat.

While the advantages of rule by law vis-a-vis rule by fiat

should be apparent, they were succinctly stated by Dean

Pound as:

‘Administration of justice according to law has six

advantages: (1) Law makes it possible to predict the

course which the administration of justice will take;

(2) Law secures against errors of individual judg-

ment; (3) Law secures against improper motives on

the part of those who administer justice; (4) Law

provides the magistrate with standards in which the

ethical ideas of the community are formulated; (5)

Law gives the magistrate the benefit of all the

experience of his predecessors; (6) Law prevents

sacrifice of ultimate interests, social and individual,

to the more obvious and pressing but less weighty

immediate interests.” Pound, “Justice According to

Law,” Essays on Jurisprudence from the Columbia

Law Review 230 (1963). [Emphasis added. ]

Unfortunately the untrained judge is usually not able

to take advantage of principle and procedure and often is

faced with difficulties which are described below:

“With no training in the law, no training in the

process of judicial thought, and no mental habit of

mind acquired by constant experience in legal

reasoning, it would indeed be strange if a [lay

record, the constitutional prohibition against a review of facts

found by a jury was inapplicable to a jury verdict in a justice of

the peace court. 481 W. Va. at 398-399. Cy. Bendheim Bros, & Co.

y. Baldwin, 73 Ga. 594 (1884) (Suggesting that lay judge should

not even undertake to instruct a jury because of a lack of legal

knowledge); People ex rel Mann, 97 N.Y. 533 (1892) (commenting

on the historic administrative function of a justice and the gradual

accretion of judicial function.)

eSebgioebeare-

judge] did not treat each case as a unique proposi-

tion. He has no category or class into which he may

| place it, no analogies from which to draw to solve

| the new problem before him. He has no legal rules.

principles or standards by which to judge the merits

of the controversy to be decided. Wholly unlike the

judge who is trained in the law, he has no precedents

to guide him. In deciding the cause before him, the

lay judge is necessarily limited by his own personal

experience acquired in the short span of a single

lifetime. He cannot call on the legal experience of

the ages to assist him but is helpless to any more

than apply his own personal notions of right and

wrong to the case at hand. The justice which such

tribunal is capable of dispensing is but the out-

cropping of the experiences of a personality. often

limited and warped by passion and prejudice, and at

best, as variable as the personalities of the justices

who comprise [the system] .... Such justice is not

justice at all. It is unequal, uncertain, and capricious.

Smith, The Justice of the Peace System, 15 Cal. L.

Rev. 118, 127-128 (1927) (quoting from Pound.

Outlines of Lectures on Jurisprudence) (3rd ed.) 75.

While it may occur in some quarters to argue that the

inability to comprehend the nature of a legal defense is a

quality which might also be found in attorney-judge. and

that there are laymen, and undoubtedly many self-

educated men, who could -render competent judgment,

this presupposes that formal legal training and experience

are totally irrelevant in legal decision making. The fact

that error may exist in the administration of justice by

leamed men cannot justify a system in which the

frequency of error is multiplied by the lack of expertise.

This is particularly true when the possibility for redress

may be foreclosed by a cost requirement,

ia ed

s SSS

To be sure, appellant does not contend that the fact

appellee Warner is not an attorney violates his right to

due process. State ex rel Moats v, Janco, supra. But he

does contend that given the nature of the justice of the

peace system his right to be heard includes the appellate

process.

The essence of due process under the Fourteenth

Amendment is the right to be heard “at a meaningful

time and in a meaningful manner,’ Armstrong v. Manzo.

300 U.S. 545, 552 (1966), in a “hearing appropriate to

the nature of the case,’ Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306. 313 (1950). In 1899 this

Court, in Capitol Transaction Co. v. Hof, 174 U.S. 1,

considered the nature of a meaningful hearing in the

District of Columbia justice of the peace system. There it

had been contended that Capitol, who was the defendant

in an action in a justice court, was being denied its

Seventh Amendment right to trial by jury because a jury

before a justice of the peace was unknown at common

law and therefore it would not receive a fair hearing.

This was notwithstanding the fact that Hof had de-

manded a jury trial and a jury of twelve was convened.

Capitol argued that this was not the common law jury

required by the Seventh Amendment.

Mr. Justice Gray delivered the opinion of the Court

and agreed wih Capitol’s argument. A jury free from all

judicial control (the justice was not a judge) was not

known at common law, 174 U.S. 39, but, citing a line of

state decisions, he found that a fair trial was not

dispensed with because the liberty of appeal, and trial de

novo, preserved the right to a hearing before a common

law jury. Id. at 42-43. And, in conclusion, the Court

found that the fair hearing—trial by jury — was not unduly

obstructed by “‘security to pay and satisfy the judg-

ment.” Id. at 45. But, the size of the bond there was only

“an undertaking to pay and satisfy whatever final

judgment may be recovered in the appellate court.” Id. at

42. Further, it was held in the state decisions to which

Mr. Justice Gray referred that:

A law containing arbitrary and unreasonable provi-

sions, made with the intention of annihilating or

impairing the trial by jury, would be subject to the

same considerations as if the object had been openly

and directly pursued. Citing Beers v. Beers. 4 Conn.

535, 539-540 (1823), 174 U.S. at 28.

Thus it was implied that a monetary hurdle would be

questionable even though Mr. Justice Gray was satisfied

that because the appellate process afforded the Seventh

Amendment Constitutional requirement Capitol was at-

forded a hearing appropriate to the nature of its case.

Subsequently, in 1900, the West Virginia Supreme

Court, relying heavily upon the opinion in Hof, decided

that Article VIII, Section 28 of the West Virginia

Constitution provides the right of appeal from a justice of

the peace on law and fact notwithstanding the presence

of a jury below. Richmond v. Henderson, 48 W. Va. 389.

37 S.E. 653. The reasons assigned in the state decision

were several. First, Judge Brannon for the Court pointed

out that a justice of the peace with civil jurisdiction was

unknown at common law and therefore a jury trial was

not necessary below. 48 W. Va. at 398. Second. since the

jury was not necessary and since its existence at the

justice of the peace level was only the result of an

addendum to the constitutional article creating the

justice’s jurisdiction, that addendum did not have the

effect of equalizing a justice of the peace court with the

court of record. /d. at 399-400. Third, he held, in effect.

that a jury before a justice was not a jury because only a

jury of twelve was known at common law. /d. at 402.

;

eS Lt ee LRRD 2

vit

NORE IES

FRAY ANPING

NAILS Ae

eee we eres Penner assess

Ergo. the constitutional prohibition against review of 4

jury's findings did not apply to the justice of the peace

system. Finally, the court interpreted the language of the

constitutional right to appeal in regard to the nature of

the hearing on review as follows:

“Appeals shall be allowed from the judgments of

justices of the peace in such manner as may be

prescribed by law.” [West Virginia Constitution

Article VIII, Section 28.|

Now. everybody knows that the legal signification

of “appeal.” unless the context otherwise manifests,

means an appellate process which opens the former

judgment and verdict, and sends the case to a higher

court for trial de novo upon the same facts, or new

facts, regardless of tie former trial. When the

Constitution thus granted an appeal as broad as the

whole field of a justices jurisdiction, without any

qualification except as the legislature might pre-

scribe, it meant that such appeal should have its

ordinary function and efficacy to retry any case. on

law and fact, to which the legislature might extend

it. It did not tie the power of review down by saying

that it should not be made except by the rules of

the common law. It applied no limitation; it

unreservedly gave this appeal with all the legal

incidents of that appeal. one of which is the power

to retry questions of fact. /d. at 404.

Judge Brannon’s decision was grounded not only upon

Hof, but also on an earlier state opinion in Evans »

Taylor, 28 W. Va. 184 (1886), where it was held that the

procedure denominated “appeal” is in actuality the

removal and transfer of the controversy to a court of

record for a second complete hearing. The “appeal”

Operates so as to vacate the judgment of the inferior

tribunal and “renders it ineffectual as the foundation of

EE —— —

an action.” 28 W. Va. at 188. These statements provided

a basis for Judge Brannon’s ruling that because the office

of justice of the peace was not rooted in the common

law, as was the court of record, there can be no equating

of the two systems, and therefore one has an absolute

right of review in a court of record. Appellant's right of

appeal then, is a fundamental part of the entire judicial

process in the justice of the peace system under decision

of this Court and the State of West Virginia.

B. The Appellate Process Offers the Only Viable

Avenue of Attack Upon the Decision of A

Justice of the Peace That Is Void Because He

Possesses A Financial Interest in the Outcome

of Appellant's Case.

Even before appellee Graham Motor Company insti-

tuted the action against appellant in the court of Justice

Warmer it was favored with the likelihood of success:

Chapter 50, Article 17, Section | provides, in paragraphs

(2) and (9), fees that accrue to the justice only on

judgment for the plaintiff.’ Specifically. paragraph (2)

allows $2.50 to be collected

*in State ex rel Moats v. Janco, W.Va. 180 S.F.2d

74,87 (1971) Judge Browning in his dissent stated: [1] n 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

% 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

of “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

For all services in connection with an execution on

judgment, suggestion on judgment. execution and

garnishment whether execution be without garnish-

ment or suggestee execution.

And paragraph (9) provides 35¢ “For mailing each

suggestee execution by registered and/or certified mail

and return receipt requested.” This 35¢ fee is in addition

to postage and other supplies regularly provided by

county courts to Justice of the Peace courts. Code

50-19-3.

This Court has held that where a case arises

which would offer a possible temptation to the

average man 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

that possibility of bias violates due process of law. Tumey

v, Ohio, 273 U.S. 510, 532 (1927). [Emphasis added. |

The Tumey “possible temptation” rule was recently

quoted with approval in Ward vy. Village of Monroeville.

Ohio, __—sU SS. —__—, 93 S.Ct. 80, 83 (1972). wherein

convictions in traffic cases were overturned because the

mayor, who sat as traffic court judge, had a possible

interest as chief executive of the municipality that

derived substantial revenue from “‘fines, forfeitures, costs

and fees” imposed by the mayor’s court. _—US. ;

93 S.Ct. at 82. While the benefits to the mayor personally

guilty of a charge of drunk driving, 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.”

aa ee ee tres on -

were only indirect, the possible temptation to him in his

official capacity rendered his decisions invalid.

In West Virginia, as a matter of state law, this test is

stringently applied:

Where a justice of the peace has any pecuniary

interest in any case to be tried by him, however

remote, he is disqualified from trying such case.

Janco, supra, 180 S.E.2d at 80. | Emphasis added. |

Indeed, the ancient maxim nemo debit esse judet in

propria causa, no man shall be a judge in his own cause. is

so strictly applied that any possible temptation renders

the judgment void ab initio. Id. at 81.

Although the underlying judgment against appellant

may be void, appellant cannot just ignore the matter and

expect it to go away. He has to choices: (1) invoke his

constitutional right to appeal, which vacates the judg-

ment and restores the original position of the parties

prior to judgment, Evans vy. Taylor, supra, 28 W. Va. at

188. or (2) attack the judgment collaterally by invoking

equitable remedies. The latter course of action would also

restore the status quo; the judgment would be declared

void—assuming an equitable remedy, traditionally a mat-

ter of discretion, would be granted—and the appellee

Graham Motor Company could again sue appel-

lant before the same justice. But, as has been demon-

strated in argument I, A, the best interests of appellant

are served by obtaining a hearing before a learned judge

in a court of record.

Paradoxically appellants position in this regard is

analogous to that of the municipality in Ward, supra.

There it was argued that notwithstanding the possible

bias of the mayor-traffic covrt judge. any unfairness at

the trial level could be corrected on appeal and trial de

novo. US. 93 S.Ct. at 83-84. Mr. Justice Brennan,

ee. -

however, «ejected this proposition and stated that the

possibility of reversal on appeal does nothing to assure a

fair trial below. /d. Moreover, the West Virginia Supreme

Court in Williams v. Brannen, 116 W. Va. 1, 5, 178

S.E.67 (1935); in considering the “curing” of a justice’s

interest in criminal cases by appeal and trial de novo,

concluded that appeal was insufficient because “It is

ordinarily cheaper to pay a moderate fine than to pay the

expenses attendant upon an appeal.” Cf. 50 W. Va. L.Q.

at 122. While these principles may apply here also.

appellant believes that he may only obtain a fair trial

before a learned judge, and thus the only viable avenue of

attack for him is to exercise his right of appeal in order to

be heard in a court of record.

THE INTERESTS OF THE APPELLANT IN REVIEW

OF THE JUDGMENT OF A JUSTICE OF THE

PEACE IS PROTECTED BY THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT.

A. The Nature of the Appeal Bond Requires Ac-

cess to a Court of Record for the Appellant

The bond appellant faces may be posted in three ways:

(1) cash of $600, (2) a property bond of $600, or (3)2

commercial surety bond at a cost to appellant of

approximately six percent. Choice (2), the property

bond, presupposes that the appellant has property of that

value. but the facts have shown that appellant is indigent.

The second choice also presupposes that appellant is able

to prevail upon a non-indigent friend or relative to

undertake such a risk for him. And indeed it is a risk.

! vgn

Code 45-1-4 provides that one liable as a surety on a

judgment shall pay on motion of the obligee the amount

awarded, plus five percent damages, and interest. More-

over, in West Virginia a paid judgment cannot be

enforced against the appellant by his surety under the

subrogation rights provided by the statute. Greenbrier

Valley Bank y. Holt, 114 W. Va. 363, 171 S.E. 906

(1933). Thus the state law provides a considerable

deterrent to appellants exercise of this option.

This monetary risk of a surety on appeal is assumed by

a professional bondsman in choice (3) because he charges

a nonrefundable premium. Such a loss of funds, the

premium, in order to obtain the fair tribunal that ap-

pellant believes he is entitled to, was found by one court

to be a taking of property without due process of law

under the Sniadach rationale. Brooks v. Small Claims

Court, 105 Cal. Rptr. 785, 789, P.2d 4)

U.S.L.W. 2391 (1973). Similarly, choice (1), cash, would

also cause appellant to lose the beneficial use of his

property pending a hearing before a learned and unbiased

judge. Thus the effect of the bond upon appellant is

clear: he must suffer a loss of his property pending a fair

hearing in a fair tribunal. Appellant contends that

considering the effect of the bond upon appellant and the

function of the bond under state law, the means

employed under the challenged statute do not justify the

end.

The function of the appeal bond in the West Virginia

Justice of the Peace System is to provide “security

which the statute substitutes in place of the advantage

which the plaintiff gains by the judgment. It is because of

this security that the judgment is vacated,”’ Chewning v.

Tomlinson, 105 W. Va. 76, 78, 141 S.F. 532 (1928).

Thus counsel for appellee is simply incorrect in his

Suggestion that in West Virginia the bond is not a

—T

eS as

substitute for the judgment gained by Graham Motor

Company (Motion to Dismiss at 7); and appellee was

further incorrect by suggesting that the bond is to

safeguard a judgment to which the plaintiff is rightfully

entitled (/d. at 12). The plaintiff has no proprietary right

in his judgment; he is not entitled to his judgment

because it has been found that in any civil action the

defendant may appeal

without any bill of exceptions or certificate of

evidence, without any manifestation of error of law

on the record, simply an appeal as of right, without

any assignment of error or showing of error, which

appeal of its own force nullifies the verdict and

judgment and opens the case for trial de novo upon

both law and fact... . Richmond, supra, 48 W. Va.

at 405.

The function of the bond then is not just to indemnify

the victor from further trouble upon appeal and to secure

him from loss, but to provide the appellant with access to

a court of record for a final determination of the issues

involved. Thus a single bond, designed to cover the

“advantage” which the plaintiff gains by his judgment as

employed in the District of. Columbia and approved by

this Court in Hof, would suffice.

B. Because Appellant Has Been Denied A Fair and

Adequate Trial Due Process Will Strike at Any

Impediment to A Hearing Appropriate to the

Nature of Appellant's Case.

Appellant has attempted to demonstrate in the fore-

going sections of his argument that there are strong

reasons for appellate review in the West Virginia justice of

the peace system. First, there is a state constitutional

right of review which arises in part because of the lay

judge status of a justice. Second, the lack of expertise in

matters of law may cause a party asserting sophisticated

legal arguments to suffer because the justice fails to

recognize a valid defense. And third, because of a

statutory method of compensating justices, the lay judge

has some degree of prejudice against the defendant in

civil matters. These last two defects. which create a

reasonable possibility of error, in and of themselves work

a denial of due process.

In the oft cited and quoted opinion of Mr. Justice

_ Black in /n re Murchinson, 349 U.S. 133 (1955), it was

said that:

A fair trail in a fair tribunal is a basic requirement of

due process. Fairness of course requires an absence

of actual bias in the trial of cases. But our system of

law has always endeavored to prevent even the

probability of unfairness ... [T]o perform its high

function in the best way “‘justice must satisfy the

appearance of justice.” [Citations omitted, emphasis

supplied in Estes v. Texas, 381 U.S. 532, 543,

(1965).]

This principle of absolute fairness in the judicial

system has been used again and again to strike down

prejudicial procedures. Mr. Justice Clark summarized

many of these cases in Estes v. Texas, supra, wherein a

conviction in a widely televised and highly sensational

criminal trial was reversed because of the prejudice

attendant to the publicity. There he quoted Justice Taft

in Tumey v. Ohio, supra. that “possible temptations”

that may result in partiality constitute a denial of due

process. 381 U.S. at 543. And this rule, he noted further.

was applied in Turner v. State of Louisiana, 379 U.S. 466

(1963); Rideau vy. State of Louisiana, 373 U.S. 723

(1963); Gideon v. Wainwright, 372 U.S. 335 (1963). and

ere

White v. Maryland, 373 U.S. 59 (1963). In each of these

cases “the Court did not stop to consider the actual

effect of the practice but struck down the conviction on

the ground that prejudice was inherent in it.”’ /d.

More recently in Mayberry y. Pennsylvania, 400 US.

455, 465 (1971), Mr. Justice Douglas, giving the opinion

of a unanimous Court, found that a judge who was the

subject of highly personal aspersions giving rise to

contempt charges had become so embroided as to make

him unfit to sit in judgment. 400 U.S. at 465. The

principle, as Mr. Justice Burger implied in his concurring

opinion, is that “In every trial there is more of stake than

just the interests of the accused; the integrity of the

process” ... is also at stake. 400 U.S. at 468. Thus any

inherent defect which creates even the possibility of error

is a per se violation of due process of law.

The imperfect conditions in the justice of peace system

coupled with the absolute state right of review constitute

a fundamental interest in the appellant to access to a

court of record. However, before he may obtain the

plenary hearing in a court of record to which he is

entitled, appellant must satisfy the challenged appeal

bond. Staats v. McCarthy, 130 W. Va. 240, 43 S.E.2d 826

(1947); Worley v. Easley, 123 W. Va. 1, 13 S.E.2d 158

(1941); Wilfong v. Jackson, 120 W. Va. 328, 198 S.E.

134 (1938); Powell v. Miller, 41 W. Va. 371, 23 S.E. 577

(1895).

Access to the courts as grounded in the due process

clauses of the Fourteenth and Fifth Amendments has

been the subject of considerable discussion in this Court

since Boddie v. Connecticut, 401 U.S. 391 (1971). See

Ortwein v. Schwab, __—s-—* US. ——_——so«s,:«93-« S.Ct. :111722

(1973); U.S. v. Kraus, __ US. __ , 93 S.Ct. 631

(1973): Huffman yv. Boerson, 406 U.S. 337 (1972):

Frederick v. Schwartz, 402 U.S. 937 (1971): Meltzer v.

LeCraw, 402 U.S. 654 (1971); Beverly v. Scotland Urban

Enterprises, 402 U.S. 955 (1971). In Boddie Mr. Justice

Harlan, writing for the court, stressed the state’s mono-

poly over the means for legally dissolving a marriage, and

since “a meaningful opportunity to be heard” was firmly

imbedded in our due process jurisprudence, Connecticut’s

refusal to admit good-faith divorce plaintiffs to her courts

was a denial of the opportunity to be heard and a denial

of due process. 401 U.S. at 377.

Subsequently in the Kras opinion, delivered by Mr.

Justice Blackmun, it was pointed out that Boddie did not

mean that access for all individuals to the courts is a right

guaranteed by due precess in all circumstances.

US. __—«, 93 S.Ct. at 636. The test, as suggested by

Kras and Ortwein, is whether (1) the litigant’s interest is

fundamental, (2) resort to the courts is the sole path of

relief, and (3) governmental control over the relief is

exclusive. Appellant’s case satisfies all of these require-

ments.

(1) As set forth earlier, appellant’s right to a hearing in

a court of record rises to constitutional significance

because (a) the state provides an absolute right of review

as part and parcel of the entire process; (b) an inherent

defect in the system causes the judge to biased; (c) the

judge has no expertise in matters of law which may be

before him (as opposed to administrative expertise as in

Ortwein*) Thus at best appellant receives only token

access to the courts, Cf. Ortwein, = US. —s, 93

“Generally this Court has found that administrative agencies

have specialized understanding in their respective fields. Davis,

Administrative Law, Exhaustion, §20.03; E.g. Federal Power

Commission v. Florida Power & Light Co., 404 U.S. 453 (1972)

teh den. 405 U.S. 948.

ome

S.Ct. at 1176 (Douglas, J., Dissenting), and only a

semblance of equal treatment before the courts, See

Chambers v. Baltimore & Ohio Ry., 207 U.S. 142, 148:

Barbier v. Connolly, 113 U.S. 27, 31 (1884); Gulf y.

Colorado & Sante Fe Ry. v. Ellis, 165 U.S. 150 (1897);

Truax vy. Corrigan, 257 U.S. 312 (1921) (the fundamental

interest in equal treatment before the courts).

(2) The facts demonstrate that appellant sought to

resolve his dispute with his creditor by repudiating the

contract, but for appellee this solution was not satis-

factory and suit was filed. Thus Mr. Justice Harlan’s

statement obtains.

Resort to the judicial process by these plaintiffs is

no more voluntary in a realistic sense than that of

the defendant called upon to defend his interests in

court. For both groups this process is not only the

paramount dispute-settlement technique, but, in

fact, the only available one. In this posture we think

that this appeal is properly to be resolved in light of

the principles enunciated in our due process deci-

sions that delimit rights of defendants compelled to

litigate their differences in the judicial forum.

Boddie at 376-377. Quoted with approval in Aras,

Ras US. ___ , 93 S.Ct. at 637. Cf. Boddie at 387

(Brennan J. concurring in part).

(3) Like Boddie, and unlike Kras, 93 S.Ct. at 638,

appellant has no alternative but to submit the underlying

controversy to West Virginia’s legal system. He may not

negotiate reasonably with his opponent because he has no

bargaining position; the creditor knows that “J.P.” in

West Virginia means “judgment for the plaintiff.” 48 W.

Va. L. R. at 243, and therefore there is no reason for

Graham Motors to compromise with appellant. And 11

should be noted that it was Graham Motors that choose

the legal system wherein the controversy would be

Pupergs

« Whe

settled: courts not of record as opposed to courts of

record. Both systems of trial courts had concurrent

jurisdiction in this matter. See Richmond v. Henderson,

supra, 48 W. Va. at 401.

Appellant submits that there is no countervailing

governmental interest that overrides appellant's interest

in access to the court. Counsel for appellee has suggested

in their motion to dismiss that the purpose of the bond is

to protect the plaintiff when “there is no merit in the

appeal’. (Motion p. 7). But the West Virginia Supreme

Court has said that there need not be any merit to

appellants appeal: there need not be “... any manifesta-

tion of error of law or the record, simply an appeal as of

right, without any assignment of error of showing of

error...” Richmond at 405. If the challenged statute has

the winnowing effect appellee suggests it should, this flies

in the face of the underlying reasons for the appeal, and

there can be no justification for having any bond at all.

SINCE THE STATUTORY DOUBLE APPEAL BOND

REQUIREMENT INFRINGES UPON APPELLANT'S

INTERESTS IN ACCESS TO THE COURTS AND

CANNOT BE JUSTIFIED BY EITHER A RATIONAL

OR A COMPELLING STATE INTEREST, IT THERE-

FORE CONTRAVENES APPELLANT'S CONSTITU-

TIONAL GUARANTEE TO EQUAL PROTECTION

OF THE LAWS.

The statutory appeal bond provisions challenged herein

create two classes of civil litigants depending upon their

initial judicial forum. Chapter 50. Article 15, Section 2 of

the West Virginia Code would impose a double appeal

bond requirement on those civil litigants who wish to

appeal a justice of the peace court decision. Staats y.

SS ATT Ee ey, ORE Ex el ORI EAE EF RE TT AUP IS EOS RTE RO

ue Ay,

Eger am aha econ:

eee

McCarty, supra, while Chapter 58, Article 4, Section 13

of the Code provides that to appeal from a court of

record a party need only post an appeal bond “in g

penalty to be fixed by the court or judge.”’ As a practical

raatter the appeal bond under the latter statutory

provision is generally set at the amount of the judgment.

See generally Cohen v. Beneficial Loan Corp., 337 US.

541 (1949); Gaines v. Hawkes, 153 W.Va. 471. 170

S.E.2d 676 (1969). The more rigorous double appeal

bond requirement works a particular hardship on the

poor individual who seeks to appeal from a justice of the

peace court because he may be unable to post the higher

bond and is thus unable to secure access to a court of

record.

In West Virginia in actions to recover money the

plaintiff has a choice of initial forums since justice of the

peace courts and circuit courts have concurrent jurisdic-

tion in matters involving less than three hundred dollars.

West Virginia Code 50-2-1; 5 1-2-2.

It will be asked, why should A suing in a circuit

court upon a promissory note for three hundred

dollars have a jury, whereas B suing on a like note

before a justice not have a jury. The answer is B has

chosen a forum of a different nature from the

circuit court. Richmond vy, Henderson, supra. 48 W.

Va. at 401.

Because appellant's creditor chose to sue him before 4

justice of the peace, he was faced with the more onerous

double appeal bond requirement before he could appeal

the adverse decision to a court of record. Whereas. had

appellant’s creditor chosen to sue him in a court of

record, he only would have been faced with a bond of

approximately half the amount of the challenged bond in

order to appeal his case. Cf. Gaines v. Hawkes, supra. The

difference in the initial forum —-a matter of choice for the

plaintiff-creditor -is that the appellant. who is poor, may

not have the opportunity to appear in a court of record

and have his defenses determined by an unbiased and

learned judge because of the appeal bond.

Under the Equal Protection Clause the constitutional

validity of these classifications depend upon whether the

classification is reasonably related to a legitimate state

interest or, alternatively, if a fundamental interest is

involved, whether the classification can be justified by a

compelling state interest. Where ‘statutory classifications

exist, this court has generally inquired whether the

challenged classification is reasonably related to a legit-

imate state purpose. McGowan v. Marvland, 366 U.S. 420

(1961); McDonald y. Board of Education, 394 U.S. 802

(1969). This doctrine was succinctly set forth in James y.

Union Guano Co., 264 U.S. 171 (1924) by Mr. Justice

Butler:

The Fourteenth Amendment does not prevent a

state from prescribing a reasonable and appropriate

condition precedent to the bringing of a suit of a

specified kind or class so long as the basis of the

distinction if real, and the condition imposed has a

reasonable relation to a legitimate object. 264 U.S.

at 18].

However, where the challenged classification has touched

upon an individual's fundamental interests, this Court has

applied a stricter standard and required a showing of a

compelling state interest in order to justify the statutory

distinctions. Shapiro v. Thompson, 394 U.S. 618 (1969):

Kramer vy. Union Free School District, 395 US. 62]

(1969). The appellant contends that the ~ore stringent

challenged appeal bond infringes the appellant’s right of

access to the courts.

Breer « tere ere

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.