Fahey v. Brennan

Fox, Judge,

dissenting:

I am unable to concur in the majority opinion in this case, and am still of the opinion that these proceedings ought to be disposed of under our decision in the companion cases, Numbers 10412, 10413, in which the same parties were involved, decided December 11, 1951. I understand, of course, that the present decision is not intended as a departure from the principles laid down in that instance as to jurisdiction, but that a situation has developed which makes it proper to disqualify Judge Brennan in the present proceedings because it is proposed, as I see the case, to hold in advance that he intends to exceed his legitimate powers. To this I cannot agree and my contention is that we should wait until Judge Brennan has had an opportunity to perform his functions in the case before passing final judgment on his action or actions.

One thing is settled in the case, and that is that the Circuit Court of Hancock County had jurisdiction, and under the decision of this Court, dated December 11, 1951, Judge Brennan was free to proceed with the trial of the matter involved in the two petitions. In January proceedings were set in motion to bring about such trial, and the cases were set for a date when it seemed quite clear that the sole counsel for the petitioners was engaged in the trial of another important case, and it was impossible for him to give due consideration or effort to the petitioners’ case. That situation developing, petitions were filed in this Court for a writ of prohibition, based on, I assume, an abuse of legitimate power supposed to be exercised by Judge Brennan. I think we are safe in assuming that gross abuse of legitimate power in legal effect amounts to excessive use of such power, and while I did not participate in the granting of the rule in these cases in the first instance, I am not prepared to say that the rule should not have been granted.

But the situation calling for the granting of the rule no longer exists. It is true, of course, that many allegations in the petition charge prejudice against Judge Brennan, but the main ground was the inability of the petitioners to have the benefit of the services of their counsel. That situation has been removed by lapse of time, and when the return day of the rule came along there was nothing in the way of setting a new date for a hearing on these proceedings, and the question, the controlling question, justifying the granting of the rules, became moot. .Ordinarily there would have been open but one course of action, namely the dismissal of the rule, and the regular procedure setting a new date for the trial. However, at this time, petitioners, apparently realizing that they could not further proceed on their original proposition, filed an amended petition in this Court in which they somewhat enlarged upon the allegations of prejudice against Judge Brennan, particularly charging that he had attempted to influence certain witnesses, and as I understand the majority opinion, it is solely upon this new development that the writs were awarded in this case.

In the first place, I doubt whether a case of this character lends itself to an amendment. I know, of course, that public questions should be dealt with in a liberal way, but it seems to me that when a case must be terminated because the question involved has become plainly moot, the case ends there. I do not want to over stress this point, but I do stress the point that the matter alleged in the amendment on which the Court’s present action is based makes no definite substantial charge against the respondent, Judge Brennan. If the fact be that Judge Brennan made an attempt to interview and influence witnesses to change their testimony to the prejudice of petitioners in this case, the charge would not only be substantial, but would merit full investigation. But, from anything which appears in the pleadings we cannot say what Judge Brennan did, and he could have no notice of that with which he is charged, except the general charge from which we are asked to infer that he did something to the prejudice of the petitioners. To sum it up, those allegations are not well pleaded, and if attempted to be relied upon should first have been made in an independent proceeding, and second, should have been pleaded in detail. Much is made of the fact that the allegations are not denied, and are taken for confessed on the part of Judge Brennan. This is in keeping with the rule that an allegation well pleaded will, on demurrer, be taken as true. I do not question that rule, but I think no allegation is sufficiently well pleaded, if said to be true, to plainly disqualify Judge Brennan from hearing and deciding these cases.

In the decisions made on December 11, 1951, we dealt with the general proposition of where a judge was interested in a’ suit, was a material witness, as well as the question of the allegations of the defendant’s strong interest and prejudice against the petitioners. On the charge that every decisive question had been decided against petitioners in advance of. the hearing, we took occasion to say that while these were grave charges, striking at the very foundation of sound principles, they did not affect the jurisdiction which was the only question then before the Court, and further referred to the fact that the way was always open to develop in the trial of the case the conduct and interest of the trial judge, and, of course, the right of appeal. We finally said:

“The sound public policy that makes it the duty of this Court to jealously guard its powers and prerogatives, admonishes us against any infringement of the powers and prerogatives of courts subject to the appellate power of this Court, such as circuit courts and other courts of record. We are not justified, we think, in ignoring the plain provisions of the statute which has been in existence for more than one hundred years, and the provisions of the By-Laws of The West Virginia State Bar which have been approved by this Court under its rule making power, which have the force of law, and which have had the recent attention of the Legislature of the State, by depriving circuit courts of the powers and authorities plainly given them by such statute and Rules. The statute and Rules, as they exist, may afford opportunity for abuse, but we can not ignore statutes merely because they may be misused. In such cases we must resort to the provisions for review which, happily, in this case are specifically provided for. We can not grant the writs prayed for herein without ignoring a plain statutory provision and Rules solemnly adopted by this Court, and such action we are unwilling to take.”

My broad view of these cases is that they rest safely on the ground of permitting constitutional courts, such as circuit courts, to administer the powers plainly granted to them, reserving to ourselves, as the appellate Court, having general supervision of all courts, the power to correct errors. This is the reason which impels me to persist in my views that the Circuit Court of Hancock County should be permitted to try these cases in due course, subject, of course, to the right of appeal if error has been committed in the proceeding.