SER Wolfe v. King
Annotate this CaseJanuary 1994 Term
___________
No. 22049
___________
STATE OF WEST VIRGINIA EX REL. HAROLD B. WOLFE,
Petitioner,
v.
HONORABLE KENDRICK KING, JUDGE OF
THE CIRCUIT COURT OF McDOWELL COUNTY,
Respondent
_______________________________________________________
Petition for Writ of Prohibition
Writ Granted _______________________________________________________
Submitted: February 8, 1994
Filed: April 20, 1994
Harold B. Wolfe
Welch, West Virginia
Pro Se
John M. Hedges
Special Assistant Attorney General
Morgantown, West Virginia
Attorney for the Respondent
CHIEF JUSTICE BROTHERTON delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "[A] person, in order to be competent to serve and
return such process, must be a credible person." Syllabus pt. 1,
in part, Peck v. Chambers, 44 W. Va. 270, 28 S.E. 706 (1897).
2. A convicted felon who has completed the punishment and paid all fines set by judgment of the court is considered to be a credible person for the purpose of service of process pursuant to Rule 4(c) of the West Virginia Rules of Civil Procedure.
Brotherton, Chief Justice:
This case involves a petition by Harold B. Wolfe, pro se,
asking that a writ of prohibition be directed against the
respondent, Judge Kendrick King of the Circuit Court of McDowell
County, West Virginia. In that petition, the petitioner asks that
Judge King be prohibited from preventing him from serving process,
which is a business that he conducts in McDowell County.
On September 16, 1993, Judge King issued, sua sponte, an
order stating that "any and all process in Circuit Court 'B' before
the undersigned Judge of this Court served by any convicted felon,
especially one who has been convicted of extortion, embezzlement,
fraud or other infamous crime, will not be deemed to have been
served by a 'credible person' within the purview of Rule 4(c) and
Section 56-3-11 and will not be acceptable to or accepted by this
Court and any such service will be deemed defective, irregular,
null and void." The petitioner is a convicted felon who has
served his sentence and paid all fines in full. Although no
records have been filed with this Court, it appears from Judge
King's order that Mr. Wolfe was convicted of extortion. The
petitioner claims that this order would effectively put him out of
business.
Rule 4(c) of the West Virginia Rules of Civil Procedure
requires service of process be performed "by the sheriff or by any
credible person who is not a party, except that an attorney for a
party shall not serve original process." West Virginia Code 56-3-
11 (1993) authorizes the sheriff, deputy sheriff, or "any credible
person" to serve process.
Little case law exists which defines the phrase "credible
person." In Stevens v. Saunders, 159 W.Va. 179, 220 S.E.2d 887
(1975), this Court noted that Rule 4(a) of the West Virginia Rules
of Civil Procedure was worded differently than the Federal Rule it
was modeled after in order to reflect a prior West Virginia
practice which was not permitted under the Federal Rule:See footnote 1 "In
prior West Virginia practice, it was permissible under Code, 56-3-
6, as amended, to do something which is not allowed under Federal
Rule 4(a), that is, to have process served by a credible person
selected by the plaintiff or his attorney. The West Virginia Rule
continues this former West Virginia practice. Lugar & Silverstein, W.Va. Rules, 41 (1960)." Id. at 891. West Virginia retains the
practice of permitting the plaintiff to choose who can serve
process. The question now before us is how the requirement of
credibility limits the traditional practice.
The only West Virginia case which deals directly with
this issue is Peck v. Chambers, 44 W.Va. 270, 28 S.E. 706 (1897),
which involved a complicated property transaction in which the
summons was served on one party by a private person rather than the
Logan County sheriff. That individual then claimed that he had not
received the summons. In holding that the service was conclusive,
the West Virginia Supreme Court presumed that "the Legislature
meant something when it used the word 'credible'; it surely
thereby designated a class of persons who might serve process."
Id. at 708. The Court found important the requirement that one who
was to serve process be a person "competent to give evidence, . . .
worthy of belief." Id. The Court then concluded "[i]n order . . .
that a person should be competent to serve process under the
statute, he must be a person worthy of belief." Id. The Court
stated that "if the return of process by persons unworthy of credit
is to be held conclusive and unassailable, the property and rights
of individuals would be no longer be safe." Id. By putting the
emphasis on whether the process server was competent to give
evidence and was worthy of belief, the Court made pivotal the
process server's ability to testify in court regarding that service. Consequently, we next look to determine if a convicted
felon is "competent to give evidence, . . . worthy of belief."
In general, persons who are convicted of felonies lose
certain civil rights which are otherwise considered inalienable:
the right to vote and the right to serve in public office. See
Wharton's Criminal Law, 21, p. 114-15, (15th ed. 1993); LaFave and
Scott, Substantive Criminal Law, 1.6, p. 41-42 (Vol.1 1986). The
United States Supreme Court has ruled that the individual state can
determine what, if any, disenfranchisement it assigns to the ex-
convict. In Richardson v. Ramiriez, 418 U.S. 24, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974), the United States Supreme Court upheld
California's law which denied ex-convicts the right to register and
vote. After a long discussion of whether the issue was moot, the
Court determined that since the second section of the Fourteenth
Amendment provided that a state's representation in Congress was to
be reduced to the extent that the state denies or abridges it's
citizens' right to vote, "except for participation in rebellion, or
other crime," the California Supreme Court erred in holding
California could no longer, consistent with the Equal Protection
Clause, exclude from franchisement felons who had completed their
sentences and paroles. Id. at 56. In reaching this conclusion,
the United States Supreme Court delved into the history of the
first section of the Fourteenth Amendment, which includes the Equal
Protection Clause. Id. at 41-49. The majority of the Court agreed that the framers of the Constitution did not intend that the first
section of the Fourteenth Amendment prohibit outright that which
was expressly exempted from the lesser sanction of reduced
representation found in section two. Id. at 54-55.
In West Virginia, there is no constitutional or statutory
provisions that specifically prohibit a person convicted of a
felony from serving process. Our statutes allow convicts to
testify in court.See footnote 2 Other jurisdictions seem split on whether a
convicted felon is permitted to testify in court.See footnote 3 Although
several states still do not permit such testimony,See footnote 4 many others
have removed the conviction of crime generally as a reason for
disqualification.See footnote 5 Instead, the witness' conviction was brought out on cross-examination and it was the jury's duty to consider the
witness' criminal record in determining the credibility of his
testimony. See State v. Crummit, 123 W.Va. 36, 13 S.E.2d 757
(1941); State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977).
In federal court, even a convicted perjurer is permitted
and considered competent to testify. In Schoppel v. United States,
270 F.2d 413 (4th Cir. 1959), the Court found that:
[T]he trend in recent years has been to allow
any person of competent understanding to
testify and to let the jury take into account
the character of the witness in determining
his credibility and the weight to be accorded
his testimony. The Supreme Court so held in
regard to a convicted felon in Rosen v. United
States, 1918, 245 U.S. 467, 38 S. Ct. 148, 62 L. Ed. 406, and a similar liberal view of
admissibility was announced in respect to the
testimony of a wife called as a witness for
her husband, abrogating the ancient rule of
exclusion, Funk v. United States, 1933, 290 U.S. 371, 54 S. Ct. 212, 78 L. Ed. 369.
When Rule 26 of the Federal Rules of
Criminal Procedure, Title 18 U.S.C.A., was
later adopted pursuant to congressional
authorization, it embodied the same doctrine.
It provides in part:
. . . the admissibility of evidence
and the competency and privileges of
witnesses shall be governed, except
when an act of Congress or these
rules otherwise provide, by the
principles of the common law as they
may be interpreted by the courts of
the United States in the light of
reason and experience.
The Advisory Committee on Rules noted that
this rule contemplates the development of a
uniform body of rules of evidence for criminal
cases in the Federal Courts, and that while
based on the common law, it "does not fetter
the applicable law of evidence to that
originally existing at common law," but that
"the law may be modified and adjusted from
time to time by judicial decisions."
F.R.Cr.Proc., 18 U.S.C.A. p. 255.
For other criminal cases, decided both
before and after the adoption of Rule 26,
which hold that convicted felons are competent
to testify, see: United States v. Segelman,
D.C.W.D. Pa. 1949, 83 F. Supp. 890; Chapman v.
United States, 5th Cir. 1926, 10 F.2d 124;
Peace v. United States, 7th Cir. 1921, 278 F. 1980; Ammerman v. United States, 8th Cir.
1920, 267 F. 136, 143. Indeed, the practice
of calling prisoners as witnesses is so common
that the objection is now seldom raised and
never upheld in federal courts, and in the
states too the common law rule has generally
been abandoned, except for those convicted of
perjury. 2 Wigmore § 519, (3rd Ed. 1940).
Even a convicted perjurer may competently
testify in a Federal Court. United States v.
Margolis, 3rd Cir. 1943, 138 F.2d 1002.
Id. at 415-16. In Schoppel, the Fourth Circuit felt that it was
better to "let the witnesses be heard and trust the practical sagacity of the jurors who have been made fully aware of their
informant's shortcomings" instead of forbidding them to testify.
Id. at 416.
Like other states, West Virginia has limited the rights
of convicted felons.See footnote 6 Article 4, section one, of the West Virginia
Constitution states that no one "who is under conviction of
treason, felony, or bribery in an election . . . shall be permitted
to vote while such disability continues . . . ." Consistent with
this wording, the West Virginia Supreme Court held that after
completing the punishment fixed by judgment, a person convicted of
bribery in an election can again vote. Osborne v. Kanawha County
Court, 68 W.Va. 189, 69 S.E. 470 (1910). Further, the Attorney
General expressed the opinion that a person convicted of any of the
listed offenses in Article 4, Section 1, may vote after serving the
full term of imprisonment or after he has been pardoned. 51 Op.
Att'y. Gen. 182 (1965).
The question of who can vote is crucial in determining
who can hold elected office in this State. In Article 4, Section
4, the Constitution provides that only those "citizens entitled to vote, shall be elected or appointed to any state, county, or
municipal office . . . ." Thus, once convicted felons regain their
right to vote, they also regain their right to hold elected office.
In Peck, the Court put great emphasis on the requirement
that the process server be "competent to give evidence, . . .
worthy of belief." 44 S.E. at 708. The primary reason for
requiring a process server to be credible and competent to give
evidence is in the event the party claimed that he had not received
service, the server could testify that process was indeed served
upon that party. Nothing in the West Virginia Code or Constitution
prohibits an ex-convict from testifying or defines him as not
credible.
Accordingly, we hold that a convicted felon who has
completed the sentence and paid all fines set by the judgement of
the court is considered to be a credible person for the purpose of
the service of process pursuant to Rule 4(c) of the West Virginia
Rules of Civil Procedure. It would be an odd state of affairs if,
in this State, a convicted felon could run for governor and hold
that office, but could not serve process because greater
credibility is required.
Writ Granted.
Footnote: 1 Rule 4(c) of the Federal Rules of Civil Procedure provides that:
(2)(A) A summons and complaint shall, except
as provided in subparagraphs (B) and (C) of
this paragraph, be served by any person who is
not a party and is not less than 18 years of
age.
Thus, the federal rules, with minor exceptions, now permit private
persons to serve process. However, there is little which discusses
what role a felon would have in the service of process.
Footnote: 2 West Virginia Code § 57-3-5 states that "[c]onviction of felony or perjury shall not render the convict incompetent to testify, but the fact of conviction may be shown in evidence to affect his credibility." See W.Va. Code § 28-5-36; W.Va. Code § 62-8-6.
Footnote: 3 See Note, The Need for Reform of Ex-Felon
Disenfranchisement Laws, 83 Yale L. J. 580 (1974); see also Note,
The Equal Protection Clause as a Limitation on the State's Power to
Disenfranchise Those Convicted of a Crime, 21 Rutgers L. Rev. 299
(1967).
Footnote: 4 See Moster v. Bower, 286 N.E.2d 418 (Ind. App. 1972); Moore v. State, 338 A.2d 344 (Md. App. 1975); State v. Simmons, 247 A.2d 313 (N.J. 1968); Blocker v. State, 40 S.W.2d 803 (Tex. Crim. App. 1931).
Footnote: 5 In People v. Beard, 602 N.Y.S.2d 430 (N.Y.A.D. 1993),
the New York court ruled that neither alcoholism nor a prior
criminal conviction rendered the person testifying an inherently
incredible witness in a first degree robbery prosecution. In State
v. Neumann, 499 N.E.2d 487 (Ill. App. 1986), cert. denied, 481 U.S. 1051, 107 S. Ct. 2184, 95 L. Ed. 2d 840 (1987), the court held that a
criminal record does not disqualify a person from testifying; it
merely goes to his credibility. See also Parrish v. Brooks, 856 S.W.2d 522 (Tex.App. 1993); State v. Huntley, 474 So. 2d 42 (La.
App. 1985); Lassiter v. State of Georgia, 333 S.E.2d 412 (Ga.App.
1985); State v. Valeriano, 468 A.2d 936 (Conn. 1983); State v.
Huffman, 659 S.W.2d 571 (Mo.App. 1983); Eichelberger v. Barnes
Hospital, 655 S.W.2d 699 (Mo.App. 1983); State v. Carter, 449 A.2d 1280 (N.J. 1982); Stone v. State, 45 S.E. 630 (Ga. 1903); Sutton v.
Fox, 13 N.W. 477 (Wis. 1882); Koch v. State, 106 N.W. 531 (Wis.
1906). Some states permit ex-convicts to testify, except in cases
involving perjury. Ex Parte Marshall, 93 So. 471, 25 ALR 338 (Ala.
1922); Lowe v. State, 52 P.2d 115 (Okla.Crim.App. 1935).
Footnote: 6 Although the issue of the right of a convicted felon to vote or hold office is not before us in this opinion, we find the current state of law informative in our examination of the question of who is considered credible for the purposes of the service of process.
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