No. 22781 -- State of West Virginia ex rel. Clayton Collins v.
Honorable Thomas A. Bedell, Judge of the Circuit
Court of Harrison County
No. 22783 -- State of West Virginia ex rel. John Leslie Peeples
v. Honorable David W. Knight, Judge of the Circuit
Court of Mercer County
Neely, Senior Justice, dissenting:
I dissent in a case where there is no harm to these
particular defendants because I believe that a criminal defendant
appealing from a proceeding in magistrate court before a non-lawyer
judge, should be afforded a statutory right to a jury trial de novo
on appeal to the circuit court. Accordingly, I would find that
W. Va. Code 50-5-13 , which eliminated the aforementioned
right, to be unconstitutional. As stated by the majority, the
amendment provides that when there has been a jury trial in a
criminal proceeding in a magistrate court, the review on appeal to
the circuit court is limited to the record of the magistrate court
trial. W. Va. Code 50-5-13(b) . Furthermore, if the
defendant waives the right to a jury trial in a criminal proceeding
in magistrate court, then the review on appeal to the circuit court
is limited to a trial de novo before a judge, without a jury.
I believe the majority's opinion is just another step in the ongoing trend in American law to abolish the constitutional rights of criminal defendants and to destroy citizens' rights to a jury trial. For an in depth discussion of this alarming and
insidious trend, see State v. Rummer, 189 W. Va. 369, 384-403, 432
S.E.2d 39, 54-73 (1993) (Neely, J., dissenting). Rummer involved
different issues but the effect of the Court's decision was the
same-- a further erosion of the civil rights of criminal
Under the former statutory scheme, the question on appeal
from a jury trial before a magistrate was not whether the judgment
of the court not of record was correct, but whether the accused is
guilty of the offense charged and for which he has been tried.
However, as stated by the majority, under the amended statute the
circuit court takes on the role of a reviewing court, rather than
a trial court. The 1994 amendments penalize criminal defendants
exercising their right to a jury trial below by stripping them of
their right to a de novo trial on appeal to the circuit court.
However, when they graciously and expeditiously waive their right
to a jury trial below, they are rewarded with the right to a de
novo trial before a lawyer-judge on appeal.
This amounts to an unconstitutional deprivation of due
process, based in part on the inherently political nature of our
magistrate system. The requirements to be a magistrate in West
Virginia are simple: if you are over twenty-one years of age, with a high school education or its equivalent, absent any felony or
misdemeanor convictions involving moral turpitude, you, too, can
run for election in your county of residence. W. Va. Code 50-1-4
. There are no preliminary requirements of formal legal
education or training.
Basically, without even being asked to walk and chew gum
at the same time, a total buffoon can win an election and be
rewarded with a four-year term as a magistrate. The mandatory
training program for magistrate judges helps smart, interested
magistrates, but is largely wasted on dim bulbs or those who don't
want to learn. There is nothing fundamentally wrong with the
concept of using non-lawyer judges for misdemeanors. However, in
the big picture, some due process attaches even to misdemeanor
The Supreme Court of the United States has indirectly
addressed the constitutionality of non-lawyer magistrates in the
case from Kentucky of North v. Russell, 427 U.S. 328, 96 S.Ct.
2709, 49 L.Ed.2d 534 (1976), as mentioned in the majority opinion.
In North, the appellant claimed that when incarceration is a
possible penalty, due process required that his case initially be
tried before a judge with formal legal training, irrespective of
whether a trial de novo was available before a lawyer/judge on
appeal. The Supreme Court essentially found this argument mooted by the fact that in Kentucky a defendant facing a criminal sentence
did have the opportunity "[i]n all instances" to have a trial de
novo before a lawyer/judge. North, 427 U.S. at 334 [emphasis
added.] Thus, the Court tacitly affirmed the constitutionality of
non-lawyer judges based upon the guarantee of a trial de novo on
appeal before a lawyer/judge.
In Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781,
49 L.Ed.2d 732 (1976), decided just two days after the North
decision, the Supreme Court again partially relied on the existence
of a trial de novo to uphold a state court system when a defendant
in a criminal case was initially tried without a jury before a non-
lawyer judge, but had the right to obtain a trial de novo by jury
on appeal. Thus, in Ludwig the Supreme Court ruled that no due
process violation was found.
Our amended statute eliminates the right to a trial de
novo on appeal for defendants who exercise their constitutional
right to a jury trial; although, a trial de novo before a judge is
preserved for defendants waiving their right to a jury trial below.
W. Va. Code 50-5-13(b) , states:
In the case of an appeal of a criminal proceeding tried before a jury, the hearing on the appeal before the circuit court shall be a hearing on the record. In the case of an appeal of a criminal proceeding tried before the magistrate without a jury, the hearing on the appeal before the circuit court shall be a trial de novo, triable to the court, without a jury.
[Emphasis added.] The mere fact that the 1994 statute provides
that all jury trials in magistrate court be electronically
recorded, thus theoretically preserving the record for review on
appeal, should not be used to disguise the fact that we have
effectively eliminated a criminal defendant's right to trial by
jury in the presence of a lawyer/judge.
No doubt the majority, as well as the Legislature, rightfully assumes they are highly unlikely ever to be in a position to benefit from the constitutional rights designed to protect criminal defendants. Presumably this explains the haste with which such rights have been diminished or eliminated by this Court and others. See State v. Charles, 183 W. Va. 641, 398 S.E.2d 123 (1990) (Miller, J., dissenting; Neely, J., joining) (creation of "lustful disposition" exception to W.Va.R.Evid., Rule 404(b)). Nonetheless, I dissent; it is the protection and preservation of constitutional rights that keep the judiciary in business.