State Ex Rel. Reece v. Gies

198 S.E.2d 211, 156 W. Va. 729, 1973 W. Va. LEXIS 265

• Court: West Virginia Supreme Court
• Decided: June 5, 1973
• Docket: 13332
• Status: Published

Opinions

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, be prohibited from proceeding to evict the relators from their home pursuant to a judgment for unlawful entry and detainer. A rule was issued February 19, 1973 returnable May 1, 1973 at which time the case was submitted for decision. The respondents did not file an answer and respondent Joe Gies did not appear on May 1 during the oral argument. Briefs were submitted by the relators and the Attorney General of West Virginia, who appeared on behalf of the respondents, citing Code, 55-13-11, as amended, as authority therefor, without objection by the relators.

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 Code, 50-15-2, which requires that bond be posted in an amount double that of the judgment ($600) plus one year’s rent ($1,032) or a bond in the total amount of $1632. As a result of their failure to post bond, the justice of the peace refused to allow the relators to file their appeal.

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 contend that the respondent Gies was a layman and had no formal legal training and hence was unable to understand the legal argument of their counsel. The relators contend that they, as indigents, were denied due process of law and equal protection of the law by the provision of Code, 50-15-2, which requires that they post an appeal bond in an amount double that of the amount of the judgment against them and an amount sufficient to cover one year’s rent of the premises.

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 Code, 55-13-11, as amended, without objection by the relators, although the authority cited by the attorney general for such action would not appear to be applicable to the instant case.

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 Code, 50-15-2, requiring that an appeal bond be posted in an amount double that of the judgment against them and an amount sufficient to cover one year’s rent of the premises before an appeal can be granted; and, (4) that the justice of the peace had a financial interest in the outcome of the case in that he was entitled to a fee of $n,50 for the issuance of an execution on a judgment rendered in favor of the plaintiff respondent and was also entitled to an additional $.35 for mailing the suggestee execution by registered or certified mail.

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 Article VIII of the Constitution of West Virginia. State ex rel. Moats v. Janco, 154 W.Va. 887, 180 S.E.2d 74.

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 of Article 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 Article VIII, Section 28 of the Constitution of West Virginia. Code, 50-2-1 (b) gives a justice of the peace civil jurisdiction “Of actions of unlawful entry or detainer of real estate situated within his county as provided in article eleven [50-11-1 et seq.] of this chapter;”.

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 Code, 50-15-2 requiring them to post an appeal bond in an amount double that of the judgment against them and an amount sufficient to cover one year’s rent of the premises.

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 Fourteenth Amendment. In the case of Lindsey v. Normet, supra, the Supreme Court of the United States held that an Oregon statute requiring a tenant to post bond on appeal from an adverse decision in an amount twice the rent expected to accrue pending the appellate decision and providing that if the landlord prevailed the landlord was entitled to collect the entire amount of the bond was a denial of the equal protection clauses of the Federal Constitution because there was no reasonable relationship between the bond requirement and the actual rent accrued and damages sustained by the landlord. However, the Court stated in that case: “We see no constitutional barrier to Oregon’s insistence that the tenant provide for accruing rent pending judicial settlement of his disputes with the lessor.” The Court in that case also stated: “ * * * a State may properly take steps to insure that an appellant post adequate security before an appeal to preserve the property at issue, to guard a damage award already made, or to insure a landlord against loss of rent if the tenant remains in possession, * * * .”

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 Code, 50-15-2, in an amount double that of the judgment in a justice of the peace court did not violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, although the Patterson case did not involve an unlawful detainer action. In the recent case of Greer v. Dillard, __ Va. __, 193 S.E.2d 668, the Supreme Court of Appeals of Virginia held that an indigent was required to post a $600 bond in order to appeal a case from a court not of record to a court of record, and the right to appeal was contingent upon satisfying the statutory requirements in connection therewith. It should be noted that the giving of the bond under Code, 50-15-2, in an amount double that of the judgment against the tenant and for one year’s rent stays the execution on such judgment and allows the tenant to stay in the premises during the pendency of the appeal with the bond as security for the rent accrued if the landlord prevails. However, this statute, Code, 50-15-2, also provides that if the tenant does not wish to give a bond in order to stay an execution on such judgment he is only required to give security for the costs of such appeal. We therefore hold that the requirements for appeal bond contained in Code, 50-15-2, do not violate the equal protection clauses of the Federal and State Constitutions.

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. Janeo, 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.

Code, 50-17-1, as amended, provides for the fees to be charged by the justices of the peace in civil cases, and reads as follows:

“(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 Turney 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.

In the case of State ex rel. Osborne v. Chinn, supra, this Court held in the first point of the syllabus that:

“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 Fourteenth Amendment to the Constitution of the United States and Article III, Section 10 of the Constitution of this State, and that where such fee was not waived the judgment of conviction was null and void. In the case of Ward v. Village of Monroeville, Ohio, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267, the Supreme Court of the United States held that where the mayor of the town before whom the.petitioner was compelled to stand trial for traffic offenses was responsible for the town’s finances and the fines, forfeitures, costs and fees obtained through trials held by the mayor provided a substantial portion of the town’s funds, the petitioner-was denied a trial by an impartial judge in violation of the due process clause of the United States Constitution. It was also held that the petitioner was entitled to a neutral and unbiased judge in the first instance and it was irrelevant that the defendant could be tried de novo on appeal by an impartial judge when his constitutional rights were violated in an initial trial. See Williams v. Brannen, supra.

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 justice of the peace, having a pecuniary interest in the trial of the case, was disqualified from trying such case, and the judgment entered by the justice of the peace is void. State ex rel. Moats v. Janco, supra.

The writ prayed for is granted.

Writ granted.