JUSTICE COURT ‑- VENUE

JUSTICE COURT ‑- VENUE

A defendant in a criminal action in justice court is limited to one change of venue as a matter of right when he makes an affidavit that he cannot have a fair and impartial trial.  Any further changes are within the discretion of the court.

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                                                                  March 28, 1957

Honorable George W. Sibbald
Prosecuting Attorney of Cowlitz County
Cowlitz County Courthouse
Kelso, Washington                                                                                                                Cite as:  AGO 57-58 No. 39

Dear Sir:

            You have asked our opinion as to whether there is any limitation of the number of changes of venue which the defendant may exercise in a justice court criminal matter.

            Our answer is that a defendant may demand only one such change as a matter of right, and that further changes are in the discretion of the court.

                                                                     ANALYSIS

            The only statutory provisions governing change of venue in justice courts are RCW 3.20.100 and 3.20.110.  In so far as here pertinent, RCW 3.20.100 provides that:

            "If, previous to the commencement of any trial before a justice of the peace, the defendant, his attorney or agent, shall make and file with the justice an affidavit that the deponent believes that the defendant cannot  [[Orig. Op. Page 2]] have an impartial trial before such justice, the justice shall forthwith transmit all papers and documents belonging to the case to the next nearest justice of the peace in the same county, who is not of kin to either party, sick, absent from the county, or interested in the result of the action, either as counsel or otherwise.  The justice to whom the papers and documents are transmitted shall proceed as if the suit had been instituted before him. . . ."

            And RCW 3.20.110 sets out that

            "Change of venue may be allowed for the same causes for which they are allowed in the superior court."

            The grounds authorizing change of venue in superior courts are set out in RCW 4.12.030.  Provisions governing prejudice are found in RCW 4.12.040 and 4.12.050, the final provision of the latter stating:

            "No party or attorney shall be permitted to make more than one such application in any action or proceeding (under this section and RCW 4.12.040)."

            The general rules applicable to your question are stated in 22 C.J.S. Criminal Law as follows:

            Section 186, p. 300, Power and Duty of Court in General.

            "The venue of a criminal prosecution is fixed by law, and a court has no power to change the venue except on a proper showing and in strict conformity with the statute; . . . A motion for change of venue should be granted only in aid of justice, and should not be permitted as an instrument of obstruction or delay. . . ."

            Section 192, p. 303, Discretion of Court.

            "Accused in a criminal case has no absolute right to a change of venue.  Such right depends on a showing of cause to be made by him, and on compliance with the statutory provisions on the subject . . ."

             [[Orig. Op. Page 3]]   Section 205, p. 323, Successive Applications.

            "By statute, more than one change of venue is sometimes prohibited, and even where the statute makes no provision for a second change, a prohibition of more than one change will be implied, although, on the other hand, it has been held that in the absence of any statutory prohibition accused may be granted more than one change of venue for good cause. . . ."

            InState ex rel. Colvin v. Superior Court for King County, 154 Wash. 315, in passing on RRS § 1774 (now codified as RCW 3.20.100, supra,) our court said, at page 319:

            ". . . We have heretofore held that the prejudice spoken of in change of venue statutes 'is a personal prejudice against the litigant or his attorney.'  State ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 Pac. 40.  It is manifest that the defendant, whose trial had been delayed for more than a month, wanted further delay, and that the prejudice of which he complains was not 'a personal prejudice against' him or his attorney.  We are not inclined to sanction any rule that will make the statute an instrument of delay rather than to promote fair and impartial trials."  (Emphasis supplied.)

            And, inState ex rel. McFerran v. Starr, 32 Wn. (2d) 544, where an attempt was made to prevent a justice of the peace from disqualifying himself and transferring the cause to another justice of the peace on the grounds of bias and prejudice, the court held that a justice of the peace has the inherent power to disqualify himself.

            InState ex rel. Douglas v. Superior Court of King County, 121 Wash. 616, our supreme court held:

            ". . . The right to the change is an absolute one and the question of prejudice cannot be inquired into under the express language of the statute . . ."

            The court in this case was referring to change of venue in the superior court but the same rule applies to justice courts, and the right of one change in either court is absolute.

             [[Orig. Op. Page 4]]

            It is apparent from the foregoing that the right to change of venue is governed by statute; that RCW 3.20.100 provides that, when a defendant makes an affidavit that he cannot have a fair and impartial trial, it is the duty of the justice of the peace to transfer the cause "to the next nearest justice of the peace in the same county, who is not of kin to either party, sick, absent from the county, or interested in the result of the action, either as counsel or otherwise," and that the first such change, and this change only, is a matter of right.  This follows by necessary implication, both from the wording of the statute itself and because of the limitation of RCW 4.12.050, which, by virtue of RCW 3.20.110, is applicable to justice courts as well as to superior courts.  Any changes of venue after the first on the grounds of bias and prejudice are matters within the discretion of the court.  (RCW 4.12.030 and 4.12.050.)

            As the supreme court, in the Colvin case, supra, has said, "the prejudice spoken of in change of venue statutes 'is a personal prejudice against the litigant or his attorney.'"  No rule will be sanctioned which "will make the statute an instrument of delay rather than to promote fair and impartial trials."

            In conclusion, if a defendant has a right to a change of venue because of bias or prejudice of the justice of the peace, he exhausts the right upon his first application.  Any further change is dependent on the discretionary exercise of its inherent power by the court to which the cause is transferred.

            We trust that this opinion will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General