STATE ex rel. CHARLES REECE and SALLY REECE, his Wife υ. JOE GIES, Justice of the Peace, etc., and CHARLESTON HOUSING AUTHORITY
No. 13332
Supreme Court of Appeals of West Virginia
Submitted May 1, 1973. Decided June 5, 1973.
Concurring Opinions July 31, 1973 and August 2, 1973.
209 S.E.2d 559 | 156 W. Va. 729
For these reasons I would have granted the writ of prohibition.
No appearance by respondents.
BERRY, PRESIDENT:
The relators, Charles and Sally Reece, filed a petition with exhibits attached thereto for a writ of prohibition in this Court on February 6, 1973 praying that the respondents, Joe Gies, Justice of the Peace, District II, Kanawha County, and the Charleston Housing Authority,
The relators were residents of Orchard Manor which is a federally funded low income housing project in Charleston, West Virginia. The relators occupied a four bedroom apartment at a monthly rental of $86. On December 19, 1972 the relators received written notification from the Charleston Housing Authority that as a result of their chronic non-payment of rent and the fact that the relators were keeping pets in their apartment in violation of their lease, the Housing Authority would be forced to sue for possession of the relators’ apartment.
On January 9, 1973 the respondent Charleston Housing Authority filed an unlawful entry and detainer complaint with the respondent Joe Gies, Justice of the Peace. At the subsequent trial before the justice of the peace, judgment in the amount of $300 was awarded to the Charleston Housing Authority.
The relators timely filed a motion to appeal and sought to proceed in forma pauperis because the relators were unable to post the bond required by
The relators contend that the justice of the peace system in West Virginia has inherent deficiencies which have the effect of preventing a fair and impartial trial. They
The relators also contend that the justice of the peace had a financial interest in the outcome of the case in that the justice would be entitled to a fee of $2.50 for his services in connection with an execution on a judgment, and he would also be entitled to $.35 for mailing each suggestee execution by registered and/or certified mail.
No answer was filed on behalf of the respondent and the attorney general appeared and filed a brief citing as authority therefor the provisions of
The grounds upon which the relators rely for the awarding of the writ of prohibition are: (1) That the summons served upon the relators violated due process of law in that it did not sufficiently apprise them of the underlying claim; (2) that the justice of the peace who tried the case is a layman not trained in the law and therefore was unable to understand the legal argument of counsel for the relators, thus preventing a fair and impartial trial; (3) that the relators as indigents were denied due process and equal protection of the law by the provision of
There is no merit in the first contention of the relators that the summons did not sufficiently apprise them of the claim. The summons, a copy of which was attached to the relators’ petition as an exhibit, informs the relators that the action by the respondent Housing Authority was for the unlawful withholding of the premises which were specifically described in detail, and therefore fulfills all requirements of due process of law in this instance.
The second contention that the relators were denied due process of law because the justice of the peace had no formal legal training and was unable to understand the legal arguments of counsel for the relators is not well taken. It has been specifically held by this Court that this contention is without merit because of the constitutional provisions for such courts under the provisions of
It was held in the Moats case that:
“The Constitution prescribes no qualification for a justice of the peace except the requirement of
Article VIII, Section 27 , that he must reside in the district for which he was elected and the requirement ofArticle IV, Section 4 , that he must be a citizen entitled to vote; and there are no additional qualifications prescribed for a justice of the peace such as legal training or the status of a duly licensed attorney at law as contended by the petitioner.* * *
“In view of the foregoing this Court holds that a duly elected justice of the peace who resides in the district for which he was elected is authorized and empowered to exercise within the county in which such district is located the jurisdiction conferred upon him by the Constitution and the statutes of this State; and his lack of professional legal training and his inability
to attain the status of a duly licensed attorney at law do not of themselves render his judgment of conviction of a defendant of a criminal offense of which the justice has jurisdiction violative of the due process clauses of the Federal and State Constitutions.”
These statements are equally applicable in civil cases where a justice of the peace is given jurisdiction by statute, in accordance with
The third contention of the relators is that they are indigents and that by virtue thereof were denied due process and equal protection of law by the provision of
The Supreme Court of the United States has held that due process does not require a state to provide an appellate system. McKane v. Durston, 153 U.S. 684, 14 S. Ct. 913, 38 L. Ed. 867; Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36; Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172, 35 L. Ed. 2d 572. It was held in the Ortwein case that a statute requiring a filing fee to be paid by indigents seeking to appeal an adverse welfare decision did not violate the due process or equal protection clause of the
The double bond in the case at bar could never be more than $600 because the limit of the jurisdiction in a civil action before a justice of the peace is $300. If the appellant does not prevail the bond merely covers the judgment, interest and costs. The bond for the amount of the year‘s rent is to cover accrued rent while the tenant remains in the landlord‘s premises during the pendency of the appeal, and only the actual damages and cost, and actual rent owed during that time could be recovered under the bond. Both bond requirements bear a reasonable relation to the amount subject to be recovered under the bond. If the tenant were allowed to remain in the premises without paying rent or giving a bond to secure the payment of the damages and rent during the pendency of the appeal, a tenant could remain in the premises rent free during an appeal which could last, in some cases, for more than a year and result in the landlord being deprived of his property without due process of law.
It was held by a three judge federal court in the case of Patterson v. Warner, 371 F. Supp. 1362 (S.D. W.Va. 1972), that the bond requirement by West Virginia
The fourth contention that the justice of the peace has a financial interest in the outcome of the case in that he is entitled to a fee of $2.50 for the issuance of an execution, which is only issued where judgment is rendered in favor of the plaintiff, is well taken. This was fully discussed in the relators’ brief and argument without objection or response by either counsel for the respondent Housing Authority or the attorney general, both of whom appeared at the hearing. See Cook v. Collins, 131 W.Va. 475, 48 S.E.2d 161. This raises a serious question with regard to the fee system used by the justices of the peace in this state in connection with civil and criminal trials. It has been under attack in many cases in this state and this Court has held that where a justice of the peace has any pecuniary interest in the decision of any case he is disqualified from trying such case. State ex rel. Moats v. Janco, 154 W.Va. 887, 180 S.E.2d 74; State ex rel. Osborne v. Chinn, 146 W.Va. 610, 121 S.E.2d 610; Williams v. Brannen, 116 W.Va. 1, 178 S.E. 67.
“(1) For entering and trying any civil suit and the issuance of all papers including distress warrant and attachment orders and the performance of all other services in connection with any such civil suit whether the suit be contested or uncontested and whether or not the suit be completed or discontinued but excepting services in connection with executions or garnishments and suggestee executions .......... $5.00
“(2) For all services in connection with an execution or judgment, suggestion on judgment, execution and garnishment whether execution be without garnishment or there be both execution and garnishment or suggestee execution ....... $2.50
* * *
“(9) For mailing each suggestee execution by registered and/or certified mail and return receipt requested .......... .35”
It will be noted that the justice of the peace gets an initial fee of $5 in a civil case which is to be paid by the plaintiff. If the justice of the peace finds in favor of the plaintiff he gets an additional fee of $2.50 for issuing an execution on the judgment in order to satisfy it for the plaintiff. He also gets a fee of $.35 for mailing each suggestee execution by registered or certified mail. These additional fees are obtained only if judgment is rendered for the plaintiff. It therefore clearly appears that a justice of the peace has a financial interest in finding a judgment for the plaintiff. The United States Supreme Court held in Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, that: “But it certainly violates the 14th Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case.” The same principle applies to civil cases as well as criminal cases.
“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.”
In the case of State ex rel. Moats v. Janco, supra, it was held that where a justice of the peace received a fee for $.50 for certifying a transcript of the defendant‘s conviction in a drunk driving case to the Department of Motor Vehicles, and a fee of $2 for an appeal bond to which he was entitled only in the event of the conviction of the accused, this resulted in a pecuniary interest of the justice of the peace and violated the due process clause of the
It is clear that the justice of the peace in the trial of this civil action had a pecuniary interest in receiving an additional fee of $2.50 if he found a judgment against the relators and by virtue of this fact and the decided cases relative thereto this constituted a violation of the due process clauses of the Federal and State Constitutions.
The writ prayed for is granted.
Writ granted.
SPROUSE, JUSTICE, concurring:
I respectfully concur with the results of the well-written opinion of the majority. I would reach this conclusion not only on the basis of the rule announced in syllabus points 4 and 5, but for the additional reason that the bonding scheme provided by our statute for an appeal from a justice of the peace judgment for unlawful entry and detainer violates the equal protection clause of the
The Supreme Court of the United States in Lindsey v. Normet, 405 U.S. 56, struck down a similar bond requirement of the State of Oregon. The Oregon statute dealt with bonds required on appeal from a judgment on a forceable entry and wrongful detainer action similar to the West Virginia statute. It is true as indicated in the majority opinion that the formula and amount required for an appeal bond under the Oregon law were different from those contained in the West Virginia statute. There is likewise no disagreement with the majority‘s interpretation of the rule in Lindsey v. Normet, supra. That statute was held not to afford equal protection to unlawful detainer appellants because there was no reasonable relationship between the bond and the plaintiff‘s damage or the rent to accrue during the appellate process.
The majority decision finds a reasonable relationship between the bond required by the West Virginia statute (
As these facts demonstrate, the bond requirement does not bear a reasonable relationship to the plaintiff‘s damage and security for rent during the appellate proceedings. Therefore, I believe it is violative of the rule established by the Supreme Court in Lindsey. This is not to say that landlords should not be protected in their right to rent enforcement—they should be. The bond requirement statute, however, provides for no flexibility to the exigencies of specific defendants. Some parts of the bond formula considered individually might be fair—for example double the $300.00 amount to protect a $300.00 judgment. However, the fairness of the bond requirements cannot be judged in separate increments of $300.00 plus $300.00 plus $1,032.00. The defendants were required to provide the total amount of $1,632.00 for a $300.00 judgment and future rent regardless that their rent might be reduced under the rules of the Housing Authority due to unemployment and regardless of any finding as to probable litigation time.
I do not agree that the two cases cited in the majority opinion are dispositive of the due process of law issue raised in this case. State ex rel. Moats v. Janco, 154 W.Va. 887, 180 S.E.2d 74, holds that a justice of the peace‘s lack of training does not make his holdings violative of due process. Ortwein v. Schwab, 410 U.S. 656, 93 S. Ct. 1172,
It is true that the
Boddie involved an indigent‘s attempt to obtain access to a divorce court without payment of a fee and the right of a divorce was held to meet the above criteria. In United States v. Kras, 409 U.S. 434, 93 S. Ct. 631, it was decided that bankruptcy was not such a fundamental interest as to require access to the courts without any fee restriction. In Patterson v. Warner, 371 F. Supp. 1362 (S.D. W.Va.), it was held that relief from an automobile sales contract did not constitute in the defendant such a fundamental interest as to bring him within the Boddie due process rule. The Boddie decision held that the right to access to a divorce court “is the exclusive precondition to the adjustment of a fundamental human relationship“—marriage. Boddie v. Connecticut, supra at 383.
If access to our courts is necessary to adjust a marriage by breaking it up, it would seem to me to be more imperative that opportunity to preserve a marriage and family life be afforded by access to the courts. That is the fundamental human relationship involved here—the efforts of a father and mother to provide a home for their family in the face of economic adversity. This does not connote the bare commercialism of a sales contract nor the pure economic considerations of a bankruptcy
The fact that defendants had a hearing before a justice of the peace, however, presents a more difficult problem. Once it is determined that a litigant has a
The defendants contend that due to the justice of the peace‘s lack of training he was not able to consider a defense available to them established by rules of the Department of Housing and Urban Development. This is a factual contention not sufficiently documented in the record for a proper resolution on appeal. However, where a defendant as here has a right to access to the courts and, in addition, there is a factual showing of a denial of a meaningful hearing before a justice of the peace, this should certainly be a denial of due process of law where because of his impecunious condition the defendant has no opportunity to proceed to another court where he could obtain his meaningful hearing.
I am authorized to state that Justice Haden joins in the views expressed in this concurring opinion.
HADEN, JUSTICE, concurring:
I respectfully concur. Concerning the matters contained in Syllabus Point 3 appended to the majority opinion, and the supporting discussion contained in the case, the majority of this Court considers the relators’ Equal Protection argument pursuant to the
In its discussion of the Equal Protection argument, the majority begins with a bald statement of a legal principle which I believe to be irrelevant to this case. The Court says due process does not require the State to provide an appeal system. Without arguing the correctness of this unqualified statement, I suggest the basic question which should have been answered in the majority‘s opinion is: when the Constitution guarantees an appeal from a decision of a justice of the peace, in what respect may the Legislature limit or condition that right?
“The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.”
This section of the Constitution has been construed to be a clear mandate that all litigants, regardless of financial ability, are entitled to equal access to the judicial system. See, State ex rel. Payne v. Walden, 156 W.Va. 60, 190 S.E.2d 770 (1972), wherein this Court recently recognized that the double property value bond requirement of the Forthcoming Bond procedure under the West Virginia statute denies equal access to the courts to a person of low income: “... as effectively as if there were a statute that only tenants possessed of certain assets may use the courts.” Id. at page 776 of the Southeastern Report. In accord is the holding of Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957). There the Court refused to construe a statute, providing transcripts to indigent defendants for whom counsel had been appointed, to mean that indigents without such appointed counsel should be denied the transcript for purposes of appeal. To have done so would have constituted a denial of equal access to the courts forbidden by
Tracing the interesting history of this section of the Constitution to its origin in the Magna Charta, this Court, in McHenry v. Humes, 112 W.Va. 432, 164 S.E. 501 (1932), discusses examples of the egregious judicial abuses inveighed against by this ancient provision:
“‘Some men used to pay fines to have or obtain justice or right; others, to have their right or their proceedings or judgment speeded; others, for stopping or delaying of proceedings at law; and others were obliged to pay great and excessive fines (viz., a fourth part, a third part, or half of the debt sued for) to obtain justice and right, according to their several cases, so that the king seemed to sell justice and right to some and to delay or deny it to others. Against these mischiefs a remedy was provided by a clause in the great
charters of liberties, made by King John and King Henry III. That clause in each of those charters runs in the same or consonant words, which are these: Nulli venemus, nulli negabimus, aut differemus rectum aut justiciam.’ Mag. Char. Joh. 40; Char. Hen. III. 33.” (Emphasis supplied). Id., at page 436-37.
This case involved an increase authorized by the Legislature in fees chargeable by circuit clerks for the institution of suits. The Court recognized and adopted certain principles to test the validity of fee, cost and security statutes. It said such charges do not violate the Equal Access provision of the Constitution unless the statute (1) “requiring the payment ... discriminates between parties who before the law are entitled to the same remedy under the same conditions.“; (2) “... the imposition of costs is unreasonable, ...“; or (3) “... it operates as a penalty on the exercise of the constitutional right to have rights and liabilities declared by the courts.” Id., at page 437. Under these guidelines, the Court in McHenry, held a fifteen dollar fee to be reasonable and not in violation of
This writer recognizes and applauds the legitimate purpose of the Legislature in the enactment of provisions which protect judgments on appeal. Without the same, the force of lower court judgments would be effectively circumvented. Additionally, I recognize the State‘s interest in insuring protection of property rights to landlord appellees.
It is not irrelevant to note that no other place in our Constitution is one given an appeal of right from any judgment of the courts of this State. Both the Equal Access provision and the Appeal of Right section of the Constitution are unique to the jurisprudence of this State; they are not mere renditions or restatements of obscure principles copied from the laws of our mother state. Their provisions are clear, their purpose unquestionable and their protections, therefore, should not yield easily to legislative restrictions not reasonably related to some legitimate and compelling State interest.
I firmly believe the statutory provisions attacked by relators which require both a bond in an amount double that of the judgment, and in addition, an amount equal to one year‘s rent as conditions precedent to the perfection of an appeal, are unconstitutional. As applied to poor people who are tenants, the statutory provisions create two distinct classes of appellant—those who are financially able to proceed by posting bond for the appeal, and those who cannot by reason of insufficient finances. Such provisions are disapproved by the Payne, Linger, and McHenry cases, supra. Tested by the strictures of McHenry, the security for appeal, discriminates between parties who are otherwise entitled to the same remedy under the same conditions, and constitutes a cost which is unreasonably burdensome to the right of appeal and access to a court of record, not related reasonably to the interest of protecting judgments and protecting landlords’
Since 1933, this State has declared as its public policy that low income families may be provided with public-supplemented rental housing constructed by various public authorities. See,
It appears to me that such security provision, as it operates upon the rights of the relators, is a proscribed penalty on the exercise of their constitutional right to seek vindication in a court of record and denies them equal access to that court.
I am authorized to say that Justice Sprouse agrees with the views expressed in this concurring opinion.