# Appellants Brief — Patterson v. Warner

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 1973
- **Citation:** 411 U.S. 905

## Text

FILE Copy

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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

b

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.

© THIEL PRESS «

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INDEX

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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)

q
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
7
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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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

3

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

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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

5

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?

=

6

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
7

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

10

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

1]

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

12
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-

13

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

el
14

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

15

“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.

;
|
a

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NORE IES

FRAY ANPING

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eee we eres Penner assess

16

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 —— —

17

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

oe

1s

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
ee

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 -

19

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,

he

ee. -

20

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

21

—T

eS as

22

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

23

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

24

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

25

(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

26

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

27

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,

es

Eger am aha econ:

eee

28

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

29

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
compelling state interest test is applicable © re since the
challenged appeal bond infringes the appellant’s right of
access to the courts.

Breer « tere ere

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1595%3A2. Public record. Not legal advice.