M E M O R A N D U M

TO: William Luff

FROM: Bill Toussaint

SUBJECT: David C. Harman, Magistrate, v. Hon. Andrew N. Frye, Jr., Judge (No. 2l233, Filed Dec. l5, l992).

DATE: January 20, l993

This case held, among other things, that: "Except where there is a specific statutory exception, a magistrate may not issue a warrant or summons for a misdemeanor or felony solely upon the complaint of a private citizen without a prior evaluation of the citizen's complaint by the prosecuting attorney or an investigation by the appropriate law enforcement agency." (From Syllabus Point l and page 23 of the Court's opinion.)

W. Va. Code l8-8-4 prescribes: "... and if the parent, guardian or custodian does not comply with the provisions of this article, then the attendance director or assistant shall make complaint against such parent, guardian or custodian before a magistrate of the county.

* * * *

If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the accused has committed it, a warrant for the arrest of the accused shall issue to any officer authorized by law to arrest persons charged with offenses against the state."

The purpose of the Harman/Frye case is to restrict the private citizens' opportunity to file complaints against one another through a magistrate without first having the complaint either evaluated by the prosecuting attorney or investigated by the appropriate law enforcement agency--except where there is a specific statutory exception--to see if there is "probable cause."

The reasons for the decision are: (l) Prosecutors represent the state rather than vindicate private rights; (2) charges which are unfounded, vindictive, or frivolous will not be allowed because of investigation by the prosecuting attorney or the police (in aid of the prosecutor); (3) impartial processing of criminal complaints rather than retaliatory charges and counter-charges will be the norm in our criminal justice system; and (4) persons trained either in the law or in law enforcement, who are subject to rules of professional conduct and discipline, will normally *review and approve criminal complaints before a magistrate (who does not have the means to investigate complaints) must consider them.

Memo to William Luff
Page Two
January 20, l993

This decision/case does not appear to affect county attendance directors or assistant attendance directors who file complaints with magistrates for enforcement of the compulsory school attendance law without going through their prosecuting attorney because: (a) this case restricts private citizens'filing criminal complaints against one another, whereas attendance directors and their assistants are not private citizens; (b) the investigatory work which this case requires of prosecutors and police, and restricts from private citizens, has already been done by school officials, **and (c) the school law in W. Va. Code l8-8-4 (quoted earlier) mandates attendance directors and assistant attendance directors to make complaints before magistrates to enforce the compulsory school attendance law.

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* There remains the alternative of the private citizen's going directly to a grand jury with a criminal complaint (with the circuit court's approval).

** In pursuance of W. Va. Code l8-8-4 and 5.

NOTE: This case is, however, being reconsidered by the West Virginia Supreme Court of Appeals.