*1 626 S.E.2d Petersburg, Virginia EPPS, City George M. Sheriff Cases). (Two Virginia COMMONWEALTH 0591-04-2, 2303-04-2. Record Nos. Virginia, Appeals of
Court of Richmond. 14, 2006.
March *7 McMullan, P.C., & on Gibney, (Thompson John A. Jr. briefs), Richmond, for appellant. (Judith McLees, Attorney H. Assistant General
John Senior briefs), General, Attorney appellee. on Jagdmann, Williams
695 BENTON, ELDER, FITZPATRICK, C.J., and Present: FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY HALEY, and JJ. A EN
UPON REHEARING BANC FRANK, Judge. P. ROBERT
In M. separate appeals, George Epps, appellant, ap two him peals judgment finding guilty of the trial court one of civil three counts criminal count In contempt. appeal, appellant this consolidated contends the 1) trial court in: finding Judge authority erred Baskervill had 2) 16, 1, orders; April July failing enter the 2002 and 2003 to advise whether the him civil charges against were 3) criminal; finding Judge competent Baskervill to testify 4) as a sitting judge; finding appellant violated Code 18.2- 456(4) 5) unsecured; for leaving the courthouse finding superseding legislation did not relieve from the duty 6) entrance; a providing deputy at the courthouse refusing to admit evidence of “impossibility” comply with the court 7) orders; order; finding appellant violated the 2002 8) 9) finding appellant order1; July violated the finding Baskervill Judge right appellant’s had a to enter office July demand return 2003 letter and order.
By published opinion dated July panel divided this Court reversed the of the trial court.- judgment Epps v. (2005). Va.App. S.E.2d We stayed the mandate of that decision and granted rehearing banc, en 46 Va.App. rehear Upon *8 banc, lifted, ing en it is ordered that the of the mandate is stay and the of judgment the trial court is reversed. Appellant argues July
1. he did not violate the 2003 order remov- ing sign the We order from the courthouse door. note that the trial order, appellant violating court did not convict of that rather the court appellant guilty July found of criminal "for the subsequent removal of Court Order door from the Courthouse to refusal return said order."
BACKGROUND This of security case concerns the “old courthouse” building in Petersburg. The courthouse houses a courtroom on the second floor. The first floor includes the office of the Circuit Administrator, Gladys Court D’Al- Kennedy, Judge Circuit , ton’s City’s public library. office and the law The court presentence reports receives mail and at the administrator’s Lawyers office. also schedule all at Ms. hearings Kennedy’s office. At the to entrance the old courthouse is a desk occupied by the deputy assigned provide security sheriff building. courthouse
In April Judges Circuit Court D’Alton and Baskervill met with appellant, City Petersburg, Sheriff discuss mutual problems. judges The memorialized agreement reached at that in a meeting letter addressed to sheriff, which the court .entered as a court order on April 16, 2002, detailing appellant certain duties would in perform present service the court. Pertinent to the case awas provision that building, main court which has a public “[t]he business, library law and conducts court’s shall have a deputy at the front entrance at all times during business hours p.m. Monday Friday.” 8:00 a.m. and 4:30 through Appel- complied lant with that order for a year. over 6, 2003, appellant On June wrote a letter to the circuit court and district court clerks difficulties Petersburg discussing resulting from a reduction of funds from Compensation stated, “[wjithout Board. The letter among things, other these funds from the I can longer deputies fee bills no have remain with the court once building court has concluded.” The did not send the circuit court judges copy this letter. 9, 2003, Judge
On June wrote a letter Chief discussing funding staffing problems. D’Alton his office’s letter, court, clerks, In that not tell the had he did as he no longer deputy he would be able maintain with 2002 order. compliance courthouse door Instead, July he wrote that the reduction “[a]s *9 person- some require for FY04 will budget the Sheriffs Office maintaining related directly which are changes nel courts, jails, for our document state of readiness present unit.” transportation services and our 1, 2003, who deputy removed the July Effective court was not the old courthouse entrance when guarded trial, At he decided remove appellant explained session. deputy from the front desk and return the deputy jail jails responsibilities “to to man the and fulfill the help jail system.” in the things getting that were behind April required was aware of the 2002 order that Appellant Essentially, front desk. presence deputy of a could not with the comply testified he and still his in the properly discharge responsibilities order jail. security staff the needs Appellant properly continued it of the court when was session. 1, 2003, that no July Judge
On Baskervill was informed entrance, at the old courthouse which left deputy posted Kennedy building. Judge Ms. alone that Baskervill direct- preparation posting sign ed the of a that indicated the temporarily security. courthouse was closed due to lack of The further number to call in order to sign gave phone gain entrance.
Appellant sign removed that from the courthouse door on 1, 2003, July saying sign, he did so because he determined the itself, security was a risk. that day, Judge preparation
Later Baskervill directed the posting virtually sign of another identical on the court- 1, 2003, July house door. Also on she entered an order posted sign with the that provided: City
It to the appearing Court Sheriff security has for the Petersburg provide ceased to Court- session, is not in it is that in house when Court ORDERED security provided, such times when is not the Courthouse only by calling shall be locked. Entrance shall be had 733- is directed to post copy 2423. The Clerk this Court this Order on the front door of each Courthouse.
Appellant then removed from the courthouse door both the second sign and the court order accompanied it.
The next morning, July Judge Baskervill went to the sheriffs office to retrieve the second sign and order. *10 Appellant responded that judge the had no right post papers on the courthouse door because he was in charge of courthouse security. The judge again asked for the return of those items. Appellant went to his office pulled and the out order, sign and still taped together. Judge Baskervill again items, asked for those and appellant “no, responded, I want to so, read them.” After doing told the that the inaccurate, order was and she right had no to post it. He eventually returned sign, the but not the order. When she again order, asked for refused, the return of the he and the judge left his office. of appellant’s One deputies returned the order to the court the following day.
Judge D’Alton then issued rule to show requiring cause appellant to show why cause he should not be held in con- tempt court, pursuant § to Code 18.2-456 upon violation of 16, orders April and July 2003. The rule was issued upon the sworn Baskervill, statement of Judge which was attached to the rule.
Prior trial, of the beginning contempt inquired whether the proceeding was criminal or civil nature. The court responded the proceeding was both civil trial, and criminal. At the Commonwealth offered the testi- mony Baskervill, of Judge which the trial court admitted over appellant’s objection. trial,
At appellant asked that he be put allowed to on evidence outlining staffing problems and his efforts to obtain additional from funding City and the Compensation Board to obtain additional with staffing comply the order. The trial court appellant’s denied request, ruling appellant’s inability to comply with the court order is not a defense to contempt. The trial court did a proffer. Appellant allow testified his own behalf. count of civil of one appellant guilty found
The trial court having 2002 order violating contempt July July on 1 and courthouse at the doors security of three Further, appellant guilty found the trial court 2003. subsections violating various of criminal counts sign the removal of the § The first act was 18.2-456. under Code misbehavior constituting July order on 18.2-456(1). court, appellant, by found charge, on this The order, access to the public denied the sign removing order. courthouse, sign defeating purpose thus appellant “interrupt[ed] thus concluded The trial court of justice.” administration of criminal con- guilty found appellant
The trial court also for, justification, leaving July on without tempt court. security and without notice courthouse without “an act of misbehavior of The trial court found this act of an officer of the court” an official nature or character *11 18.2-456(4). § violation of Code criminal guilty of
Finally, the trial court found 2, of the court order from for the 2003 removal July to return the subsequent the courthouse door and refusal in violation of upon request order to the court reasonable 18.2-456(5). §
ANALYSIS I. VALIDITY OF ORDERS Baskervill had no authori Appellant Judge contends 16, of a requiring posting 2002 order ty April to enter the directing July front and the 2003 order deputy at the desk security provided. when that the courthouse be closed 16, exceeds the that since the order He maintains 17.1-513, subject no § the trial court had authority of Code Therefore, contends is void. jurisdiction matter and order disagree. the order. We duty obey he had no appellant, of, or is, course, that disobedience “It of well settled order, is not con- or decree judgment, resistance to a void Commonwealth, Robertson v. tempt.” 181 Va. order,
S.E.2d This is so because “a void judgment, or is a nullity may decree and be attacked collater- ally.” Id.
Appellant § cites Code 17.1-5132 as the sole of source jurisdiction for circuit courts. He circuit contends courts have no authority preside other than to “proceed- over and rule on Yet, ings.” ignores statutory other and common law powers orderly of the court to of ensure the administration Bacon, Supervisors See Bd. justice. 215 Va. of (1975) (holding when the building courthouse offices, is occupied by court and municipal the court has 2. Code 17.1-513 states: jurisdiction The proceedings by quo circuit courts shall have of quo warranto or information the nature of warranto and to issue mandamus, prohibition writs of and to all certiorari inferior tribunals existing created or under the laws of this and to issue proceedings arising writs of mandamus in all matters of from or pertaining supervisors govern- to the action of the boards or of other ing respec- bodies of the several counties for such which courts are tively may necessary held or cases in prevent in other which it justice may and according failure of in which issue mandamus principles They appellate jurisdiction of law. have common shall cases, criminal, appeal may, in all provided civil and in which an as law, judgment proceedings any be taken from the or inferior tribunal. They original general jurisdiction shall have and all cases law, chancery except cases at cases civil at law to recover $100, personal property money greater not of value than exclusive interest, except assigned such cases as are some other tribunal; $100; recovery also in all cases for the of fees in excess of penalties levy involving right or cases and collect toll or taxes also, validity bylaw any corporation; or the of an ordinance or cases, criminal, appeal may of all civil or which an be had to Supreme They original jurisdiction Court. shall all also have *12 presentments,
indictments and of in- for felonies informations and dictments for misdemeanors. cases, criminal, They jurisdiction appellate shall have civil of all may, by appeal, supersedeas provided in law, writ of which an error or as courts, thereof, by judges allowed taken to or such or the judgment any proceedings from or to inferior the tribunal. matters, They jurisdiction other shall also have of all civil and criminal, cognizable by therein and when a made law motion tribunals, they may money allowed in recover is such hear and same, although $100. less than determine the it is to recover
701 for building used the portion that to control authority 595, Carrillo, Va.App. 500 court); v. also Hutchins see (1998) court have the judges that district (stating S.E.2d 277 of inclement weath- on the occurrence to close court authority er). the secu authority to ensure have the inherent
Courts Commonwealth, Payne courtrooms. See rity their (1987) (“The 500, judge trial has 357 S.E.2d Va. security.”); see also Bond v. of courtroom supervision overall Va.App. (2000) respon judge’s exercise (upholding the trial decision security disallowing accused’s twin sibility for courtroom the in the court brother, among to sit audience prisoner, 53.1-120(A) room). § the “sheriff shall Code mandates the courtrooms ... are secure ensure that courthouses and However, judge from the chief disruption.” violence the sheriff responsible by agreement the circuit “shall be with security ... for Code designation deputies.” the of courtroom 53.1-120(B). § agreement
The 2002 order confirmed the between sheriff, the and it with the compliance ordered judges the order did not accu- agreement. Appellant argued never fact, rately agreement. appellant complied In with reflect July until 2003. order provide orderly In role to administration its when no justice, court ordered the courthouse closed Indeed, folly to claim the provided. it would be security was courtroom, but not judge power circuit court has the to ensure courthouse, security. impotent supervise If the courthouse, security ability ensure who enters man- Although is diminished. 53.1-120 courtroom security, courthouse the statute provide dates the sheriff ensuring properly does from the sheriff not bar court duty. discharges subject jurisdic trial court has matter
Clearly, the
security
tion
courtroom and courthouse
issues.
to address
the court is
security
trial
could
when
Whether the
court
order
*13
error,
not
jurisdictional.
in session is not
if any,
The
be
would
as to whether the trial
authority
court
had
to exercise its
Warden,
See Nelson v.
subject
jurisdiction.
matter
262 Va.
276,
Of course a
cannot be
guilty
contempt
court for
disobeying an order which the court
no authority
had
of law
make,
to
if a
jurisdiction
but
court has
of the
parties
order,
legal
it
authority
render the
then must be obeyed
it
though
even
or improvidently
erroneous
entered.
Id.
(citations
also
omitted);
at
Thus, the subject trial court had jurisdiction matter to order to provide security. was, courthouse The order most, void, rather voidable than did have the order, privilege disobey the even if it was erroneous. II. JUDGE BASKERVILL’S TESTIMONY Appellant contends the trial court in allowing Judge erred to testify Baskervill at the hearing, violation § Code 19.2-271. § part: 19.2-271 states in “No be compe- shall testify any
tent civil any criminal or as to proceeding matter which came him in the of his before course official only The exception prohibition duties.” of Code 19.2- 271 is: section,
Notwithstanding any any other of this provision court, judge, any having clerk of or other magistrate, person crime, of a warrants, is the victim who to issue power his office incompetent solely because not be shall of the arising out or civil proceeding criminal testify any crime. scope both analysis an appeal
This involves *14 disqualification provision used the term “official duties” as the exceptions as used in term of crime” the “victim clause. that inci concedes the the Commonwealth
Although in the came her to which the testified before dents by concessions duties,” we are not bound of her “official course Commonwealth, 230 Va. Tuggle v. by of the See parties. law (1985) 99, 5, 838, (affirming 5 death n. 846 n. 111 334 S.E.2d trial suggestion that the Attorney General’s despite sentence resentencing). case remanded for required court’s error the aof party challenged applicability Where a has appellate always on courts have particular appeal, statute plain to of that authority meaning raise and construe Court, Indeed, by Virginia Supreme as noted an statute. appellate accept court “cannot to a flawed construc be forced ... of an tactical simply oversight tion of a statute because parties.” decision or both of the Elliott v. one Common (2004). wealth, 464, 263, 267 Va. 593 S.E.2d 268 Here, the trial plain language court concluded it judge’s admitted the testimo apply statute did when ny, reasoning judge pro that the incidents which the about judicial of a posed proceeding.” occurred “outside testify Thus, address, subject of the we sua whether sponte, in the “matter came judge] [the was a which before Finnerty Thorn judge’s] course of official duties.” See v. [the (2004) Hall, Inc., ton 593 S.E.2d Va.App. statutory is “a pure question interpretation” that “a (noting also judiciary”); the core see competency matter within State, (Ind.Ct.App. One 1968 Buick v. 638 N.E.2d 1994) (“A is one sponte which we raise sua preliminary issue statutory & interpretation.”); Dep’t Bartus Health (1993) Servs., 501 N.W.2d Social Wis.2d (holding the Wisconsin of Appeals Court “had the authori- ty to raise the question statutory interpretation sua sponte,” and declining adopt per “to se rule requiring courts to seek briefing” additional because the court “consider[ed] such unnecessary a rule both unduly burdensome to the courts”).
The Canons of Judicial Conduct for the Commonwealth of Virginia a judge’s judicial define duties “include all the judge’s duties of the prescribed office by law.” Va. Sup.Ct. Jud. Cond. Canon 3 previously noted, As law well settled that courts have the inherent to ensure authority security of their courtrooms and to orderly ensure the justice. administration of This authority necessarily extends to ensuring security of the courthouse. trial
Additionally,
judges
authority
have the
ensure their orders are followed.
“Tt
is essential
to the
proper
law,
administration of the
enable courts
enforce
*15
decrees____’”
orders,
their
judgments
v.
Carter
Com
monwealth,
392,
(1986)
2
395,
5,
Va.App.
345
7
(quoting
Chadwick,
588,
In re
596,
109
1071,
Mich.
67 N.W.
“
(1896)).
‘The moment the courts of the United States were
called into existence
jurisdiction
and invested with
any
over
subject, they
possessed
became
of the power
protect
to
them
”
selves and
dignity
authority
of the court.’
Holt
(1964)
Va.
136 S.E.2d
Robinson,
(19 Wall.)
(quoting
parte
Ex
86 U.S.
22 L.Ed.
(1874)),
rev’d on
grounds,
other
381 U.S.
85 S.Ct.
(1965). Thus,
Code applies any 19.2-271 to “matter” that a judge acting “[comes] before” in his or her capaci “official” ty. subject concern, “Matter” is defined as of or feeling, “[a] action.” The American Heritage Dictionary the English of 1992). (3d Language ed. of applies regardless The statute courtroom, chambers, that in whether matter occurs whether of office, any regardless other location or sheriffs over judicial subsequent proceedings in the matter results judge. an that order presides entry which that of the not the location duty” judge, of the It is the “official “matter,” that controls. in which he appellant, with Baskervill’s encounters
Judge orders, enforcing the purpose occurred for those violated merely who a disinterested witness was not her orders. She contemptuous behavior. Epps’s Sheriff happened observe of her Rather, precisely him out because sought she official that orders and her belief entry in the involvement in the course of these violated them. It was Epps Sheriff had that Baskervill observed the behavior Judge “official duties” she testified. about which
Thus, of the matter about which we conclude all relevant did, fact, [Judge in before “[come] Baskervill testified Judge contemplat- as the course of official duties” [her] Baskervill] § ed 19.2-271. by Code the Commonwealth’s contention
We next address testify she was the Judge competent Baskervill because Appellant responds that because contempt. victim of the against dignity an this case is offense with court, court, judge, agree is the victim. We appellant. predecessor 4781 of the of Virginia
Section Code 19.2-271, testify incompetent made officers judicial respect with a criminal defendant a court record against trial or the defendant made his any statements That statute any examination such officer. preliminary before *16 part: in provided relevant justice, police civil justice police and peace,
“No other judge or justice, juvenile and domestic relations court testify the accused against to justice competent trial shall be accused by to made in a court of record as statements preliminary or his examina- justice trial such on by on his justice.” tion such before Commonwealth, v.
Baylor 116, 190 Va. 56 S.E.2d (1949).
In Baylor, Supreme Virginia Court stated Code § by as amended in Assembly General mandat- justice ed that a trial be barred from in testifying circuit court to the fact that the accused had entered a guilty plea when his case was heard particular below. That statute “designed to an protect against intended accused testimony judicial certain officers before appeared whom he has as to admissions or him.” Id. confessions made
A comparison § of former § Code 4781 with Code 19.2-271 provisions § makes clear that the of Code 19.2-271 are much broader than § those of former Code 4781. Section 4781 was only to applicable criminal prosecutions and then in only cases pending hand, a circuit court. § On the other Code 19.2- 271 applies both proceedings civil and criminal in all courts judicial and makes officers incompetent testify mat- about ters that come before them their official capacity. It is applicable to all cases those that except specifically are enu- merated, any party may witness invoke its provisions. present The evolution this statute indicates the legislature’s all-inclusive, intent make the prohibition encompassing all situations where judge may be called to testify any “as to which matter came before him in the course his official except duties” when the is a judge victim of a crime. The General Assembly has recognized problem with § Code 19.2-271 with respect calling judicial as officers witnesses. In cases where a criminal finding is court, district court to circuit appealed the district court is an indispensable often witness to the contemptuous event below his or her testimony prosecu- essential Baugh tion an of the offense on appeal. 368, 372-73,
Va.App. § 417 S.E.2d 18.2- this resolves by requiring dilemma that the district court provides 3. Code 18.2-459
707 and the particular of the conviction a “certificate judge submit hear “may circuit court the offense.” The circumstances of adduced legal testimony any certificate and upon the case statutory scheme § 18.2-459. This on either side.” Code judge court and to the district proper accords deference evidence, availability relevant preservation and ensures effect, In Code judge’s testimony. particular, in the district § by to 19.2-271 provides exception § a narrow Code 18.2-459 certificate, way testify to judge, by a district court allowing as a in circuit court. witness
However, has not carved out a Assembly broad- General judicial § permit 19.2-271 that would exception er to Code testify to contemptuous witnesses behavior simply officer who court, legislature include circuit court nor did the circuit to legislature § 18.2-459. Had the intended judges by allowing § 19.2-271 cir- exception another to Code create certificate, it cuit such would judges testify through court have so indicated. chose, legislature must ... assume that the
“We
care,
it enacted
relevant
with
the words it used when
statute,
we
by
interpret
and we are bound
those words as
Inc., 240 Va.
Country Properties,
Barr v. Town
statute.”
&
“
sum,
292, 295,
In
are
‘[c]ourts
S.E.2d
func
legislative
This is a
to rewrite statutes.
permitted
legislature, clearly
dis
tion. The manifest intention of
There can be no
by
language,
applied.
its
must be
closed
confinement,
fine,
Any
pay a
under
18.2-
person sentenced to
or
may
judge’s contempt authority],
appeal therefrom the
[district
pro-
county
city
in which the sentence
circuit court of the
nounced,
sentencing
upon entering
recognizance before the
into
sufficient,
surety
penalty
appear
before
judge, with
and
deemed
taken,
appeal offense.
If such
such circuit court
answer
particular
a certificate of the conviction
circumstances
offense, together
recognizance,
be transmit-
with
shall forthwith
court,
sentencing judge
circuit
who
ted
to the clerk
such
immediately
judge
deliver the same to the
thereof. Such
shall
any legal
testimony
may
upon the
hear
the case
certificate
side,
may
as
seem to
on
make
order therein
adduced
either
such
proper.
him
”
departure from the words used where the
is
intention
clear.’
Id.
(quoting Anderson
182 Va.
(1944)).
“ ‘Contempt
as an act in disrespect
defined
*18
the court or its processes, or which obstructs the administra
”
tion
justice,
or
to bring
tends
the court into disrepute.’
Commonwealth,
Carter v.
2 Va.App.
5,
345 S.E.2d
7
(1986) (quoting
Contempt
Jurisprudence
§
4A Michie’s
2
(repl.
1983)).
embarrass,
vol.
act
Any
hinder,
which is
calculated
or obstruct
the court in
justice
the administration of
con
is
Potts,
tempt.
Black’s Law Dictionary defines “victim” as “person a crime, tort, a or other wrong.” Blank’s Law by harmed (8th 2004). Here, Dictionary 1598 ed. Judge Baskervill wit- behavior, yet nessed Sheriff Epps’s by she not victimized harmed, otherwise, it. She physically was not and she personal Any suffered no consequences. damages resulting Epps’s court, from Sheriff conduct by by were suffered not Judge individually. Baskervill Contempt dignity offends the court, of the not the dignity judge. it her Although was individual acts in her judicial capacity that prompted appel- actions, lant’s we disagree with the Judge Commonwealth that Baskervill was the victim of the offending behavior.
Because the matter at before Judge issue came Baskervill in course her official duties and because she was not a victim of a by crime committed Epps, Sheriff we conclude that the trial court erred in allowing Judge testify.4 Baskervill
Although admitting Judge court erred in Basker testimony, require vill’s that error does reversal if we v. Common- Lavinder determine the error was harmless.5 analysis 4. is to the this This limited facts of case. We need not decide contemptible whether can be victim of if the personal judge. behavior is directed at and to the individual Appellant’s testimony Judge paralleled 5. Baskervill’s. We will not objection testimony judge’s address whether waived his to the argued because the issue was we it waiver never will not address (1991) ten wealth, 407 S.E.2d Va.App. Commonwealth, ix, banc); 240 Va. 396 S.E.2d Ferguson see (1990) that proposition for the 8.01-678 (citing cases”). Com- The all required review “harmless-error harm- the error was argument no monwealth has offered See Land v. holding. for less, perceive no basis such and we (1970) 223, 226, 176 Va. (in erroneously allowed Common- rape case in which court case-in-chief, offer, in evidence defendant’s its wealth error could not holding for prior statutory rape, conviction chose subsequently because defendant simply found harmless testify ... “decision to take the stand because defendant’s admitting the testimo- induced the error” in may have been Judge in accord testimony was with ny). appellant’s While Baskervill’s, it is error say cannot harmless we testimony light Judge court to have allowed Baskervill’s why testify. chose to inability our to determine *19 III. AND CIVIL CONTEMPT CRIMINAL by failing the erred to Appellant contends trial court charges charges advise him which were criminal and which his trial tactics further maintains that Appellant were civil. contempt charges on are may differ whether depending civil, or to i.e., deciding testify whether to whether criminal It is punishment.6 to quantum call witnesses address the beginning the trial court indicated uncontroverted criminal. hearing charges that were both civil and Further, the trial court had by hearing, the end civil, and which were charges articulated which were criminal disposal in the has this information at his so that Va.App. sponte. Johnson v. sua (2005). criminal, argues Appellant proceeding the assis-
6. also if was hearing participate attorney in the general present at the could not tant However, co-counsel, pursuant al- to Code 2.2-511. proceeding as clearly though attorney general present, the record an assistant attorney general participate in the the assistant did not indicates Thus, predicate. argument this has no factual contempt proceedings. Appellant argues, event a retrial. and agree, we civil However, criminal contempt quite and are different offenses. those not prevent differences do the civil and criminal con- tempt charges being simultaneously.7 from tried
“Contempt proceedings prosecuted preserve power and vindicate the of the court dignity are criminal and punitive; those prosecuted and preserve rights enforce civil, remedial, of private parties are and coercive.” United Co., v. Newport Dry Steelworkers News & Dock Shipbuilding 220 Va. 260 S.E.2d There are significant differences kinds of proceedings: two In a criminal contempt proceeding, is pre- defendant innocent, he proved guilty beyond sumed be must a doubt, reasonable and he cannot be compelled testify Moreover, against contempt himself. a civil proceeding is the original parties litigation between is and instituted cause; tried as a the main a part contempt criminal proceeding public defendant, between the and the and is not a part original cause. (citation omitted).
Id. at
“A proceeding for criminal is a contempt quasi-criminal proceeding public between the and the violator.” In a criminal proceeding, always the trial court may *20 punish purpose the violator for the of upholding the authori- of In ty dignity and the court. a contempt proceeding nature, punishment imposed this a impris- is fine and/or onment. Appellant object joinder
7. at to the did not trial the civil criminal charges. contempt
711 more of the contempt partakes civil proceeding “A it of the than does proceeding civil a remedial nature of is to purpose main Its proceeding. a nature of criminal will afford which punishment of a imposition procure injured.” the parties remedial relief to 14, 16, 441 S.E.2d v. Va.App. 18 Kessler (1994) (citations omitted). 224 entitled to contempt,
In accused criminal if the jury punishment to have trial may counsel and elect a at 417 Baugh, six months. See Va.App. 14 exceeds however, (“We unbridled recognize, S.E.2d contempt for criminal authority punish of courts to contempts,’ penalty with a ‘petty is limited to jury absence of months.”). a civil may A court not convert exceeding not six to the trial without notice hearing into criminal contempt Ward, 553, 560, 425 Powell v. S.E.2d See Va.App. accused. (1993). However, may simulta an accused be tried contempt under certain circum criminal and civil neously for Steinberg, Va.App. v. 42, 47, 461 Steinberg stances. contempt criminal and civil “[Although long so as together, prejudice matters tried avoided [are] [is] rights privileges ‘the ... all the defendants accorded [are] ” Id. (quot cases.’ contempt in criminal owing defendants Workers, Mine ing United States United 330 U.S. (1947)). 677, 698, 91 L.Ed. 884 S.Ct. Here, indication that gives the record no him in a criminal rights privileges due afforded all the application proper burden proceeding, including clearly pro- conducted as proof. The cases were Virginia v. M. George “Commonwealth styled ceedings Epps.” An assistant Commonwealth’s attorney represented Ap- his own counsel. Appellant retained Commonwealth. to a the Commonwealth pellant jury was not entitled because 18.2-457, punishment which allows proceeded under Fifth jail. Finally, appellant’s no days more than ten he was not were not violated because rights Amendment *21 712
forced incriminate himself and voluntarily testified on his own behalf.
The record
clear
contempt
makes
which
charges are crimi-
civil,
retrial,
nal and which are
on
the charges may be
joined
long
“so
as
...
‘[appellant
all the rights
is]
accorded
privileges owing
defendants in
criminal
” Steinberg,
47,
cases.’
21
at
Va.App.
IV. REMOVAL OF DEPUTY Appellant argues he did not have adequate notice that failing deputy have a at the some duty door violated provide security. He claims the show cause rule not does indicate this violation to be an issue. disagree. We The show clearly alleged cause appellant April violated the order of 2002. The affidavit attached to rule forth in set detail that deputy assigned to the front desk of the courthouse had been removed. The affidavit also stated the judges received no notice of the despite removal the fact that appellant notified the district court clerks. notice,
While claims no prejudice from a substan- tial amount his defense was explanation an he why removed the deputy after the court concluded business. Fur- ther, appellant specify any does not prejudice may that he have suffered. See Butler v. Va. Thus we find had proper notice.
V. SUPERSEDING LEGISLATION Appellant subsequent contends that to the order, legislature Appropriations enacted the 2003 Act, which his duty comply relieved with the order. The Appropriations Act of 2003 provides that unless states exists,” writing security “that a substantial risk the number security deputies courtroom strictly limited. 2003 Va. since concludes Appellant at 1787. ch. item Acts assigned to court- deputies the number specifies the Act security, courthouse designation no and makes such rooms security for require intend to legislature did *22 the argues Appellant not in session. courthouse when court is for disagree court order. We overruled the effectively Act two reasons. passed not Act was
First, Appropriations the 2003 although see 16, order, 2003 Acts Va. 2002 entry until after 17, (Act 1,2003, May Act of 1042, amending May ch. of 1733 2002-2004), the for 2002, budget which biennial provided that appellant in the 2003 Act security provision courtroom also a the 2002 order was his duties under contends modified Acts, see 2002 Va. and part Appropriations of the 2000 (Act 17, 2002, 899, 64, May for fiscal at 2265 of Acts ch. item ch. 1, 30, 2004); 2000 Va. Acts 2002, to June years July from (Act 61, 19, 2000, years May of fiscal 1073, item at 3260-61 30, 2002), 1, 2000, brought by to a fact out from June July Thus, con- language was Commonwealth at trial. identical 16, the April Act in effect when Appropriations in the tained entered, that language and the inclusion of 2002 order was at trial change. Appellant Act admitted the 2003 effected no already” place “the in that was in language that he was aware of on it because “just [in 2003]” that he decided act department’s budget. reductions in his further Second, security language even if the courtroom new, not support its inclusion would the 2003 Act had been argument his on premises seeks. Appellant result alterius,” which exclusio “expressio unius est maxim items, implica an specific mentions provides “when statute to be were not intended present tion arises that items Bd. County statute.” Wise scope included within the of Wilson, 485, 650, Supervisors v. 463 S.E.2d Va. terms, intended by express Clearly, legislature, security, not overall to courtroom staffing requirements limit lan interpreting statutory When security the courthouse. that guage
“is plain and we are unambiguous, plain bound Thus, meaning statutory of that language. when the Gener- Assembly al has used that a plain meaning, words have courts cannot give those words construction that amounts holding Assembly General meant something other than that actually expressed.” which it Shelton, (2004) Beck v. 267 Va. 593 S.E.2d (quoting County Charles, Lee Town St. 264 Va. (2002)). 568 S.E.2d
It is one of the fundamental rules of construction statutes that the legislature intention is to gathered from a part view of every the whole and of the statute taken and compared together, giving every word and every part of statute, if its possible, meaning, due effect and ordinary words used their popular meaning, unless plainly it appears they were used in some other sense. If legislature discovered, the intention of the can be thus it *23 permissible is to not to or add subtract from the words used in the statute. Commonwealth, v.
Posey
123
96
Va.
S.E.
(1918). This canon flows from the principle that
must
“[w]e
...
legislature chose,
care,
assume ...
the
with
the words it
Barr,
used
it
when
enacted the relevant statute.”
atVa.
295,
security. Nothing Act Appropriations modified that duty. will not a apply statutory We maxim of interpretation nullify Further, to an express statutory duty. a timely absent effort by appellant challenge validity of the order before he was held in contempt, the claim that was relieved duty of a on comply legislation based superceding irrele- vant. EVIDENCE
VI. IMPOSSIBILITY Appellant proffered detailing certain evidence his ef forts to him permit obtain additional which would then funding proffered with He also comply order. court is not session front entrance when to staff the that to go unperformed. tasks require would other testimony this is crucial Appellant contends an inability alleged impossibility. “[T]he his defense to an contemner, on to render obedience part, without fault his charge contempt.” to a court, is a defense good order 511, 514, 137 Va. Laing not but rather impossibility The facts do establish diffi a confronted with several situation where order, appeal He with the court options. comply cult could order, attempt judges to meet with the to resolve unilaterally conflict, requirements, his adjust job staffing the latter. the court order. He chose violate terms of testified, man “I to redirect the necessity felt the Appellant he pulling for other allocations” had “been power because daily allowing to use the court jails resources from testified, He “I made jails get in workload.” further behind away from court bring person decision to the conscious court, jails.” to man the after concluded actions, a even Legal impossibility occurs when defendant’s intends, exactly as he would consti- fully if carried out the actions impossibility a crime. occurs when tute Factual law, by criminal proscribed intended defendant are pre- to the a circumstance or fact unknown defendant but result. Tradi- him from intended bringing vents about de- as valid analysis recognizes legal impossibility tional recognize impossibility. fense but refuses to factual *24 Commonwealth, 633, 636, 347 v. S.E.2d Va.App. Parham 172,173-74 made a conscious decision impossibility, appellant
Far from order. to fulfill to the the court neglect one set duties Further, challenge timely by appellant absent effort in claim validity contempt, of the order he was held before order due comply was unable to with the appellant find funding on a lack of is irrelevant. We impossibility based the trial court did not err in evidence of excluding “impossibili- ty.”
VII. VIOLATION
THE
OF
APRIL
2002 ORDER
Appellant maintains he
did
violate the court’s
April
2002 order
imposed
because the letter
no duty upon
provide security.8 Appellant cites
Michaels
32 Va.App.
(2000),
Michaels,
position.
support his
In
contempt
we reversed a
conviction
the order did not expressly require the
because
to transport
prisoner.
sheriff
A
person
“contempt”
a court order
if
only it is shown
“
he
she has
its express
violated
terms.
‘The
process for contempt
lies for
disobedience
what
is de-
”
creed, not for what may be decreed.’
a person may
“[B]efore
be held in
violating
order,
court
the order must
be
definite terms as to the
duties thereby imposed upon him and the command must be
rather than
expressed
implied.”
(citations omitted).
Id.
Appellant the deputy from removing in the justice. His action tion of properly of responsibilities was to his entrance due courthouse the best his resources He wanted “allocate staffing jail. the system.” justice in the manage all his duties way possible above, own by his appellant, in Section VI As we discussed the viola- admission, deputy, to remove consciously decided chose to fulfill one intentionally He tion of the court order. appellant’s argu- over the court order. Under set of duties ment, if under order meaningless person orders are the court his This reason- priorities. based on own ignore can the order in the that a court ignores “well settled ing patently [rale] with protection justice power and administration is invested in the of its orders and punish disobedience Clintwood, 562, 569, 125 203 Va. decrees.” French v. Town of therefore, We, intentionally conclude violated 16,2002 order. AND
VIII. REMOVAL OF ORDER SIGN July claims he did not violate Appellant security closed when order which ordered courthouse not argues since the order did provided. not He further order, him from he did not violate prohibit removing position confusing, it. This somewhat removing order violating July was not convicted because removing the order and on sign order. He was convicted 18.2-456(1), i.e., § July violation of Code “[m]isbe court, or near thereto as presence havior so justice.”9 the administration of interrupt obstruct adminis- impede he Appellant contends did intend to 18.2-456(1). His acts belie justice tration of under Code as to Appellant does act was "so near thereto 9. not contest his justice.” interrupt obstruct or the administration this assertion. The order of July 2003 directed the clerk to on post copy “a of this order the front door of each court- house.” Clearly, posting was to the public advise of how they *26 could access the when courthouse the courthouse was locked. order, By removing sign and the public was denied access courthouse, to the an including inability to schedule cases with the court Appellant, by administrator. deliberately removing order, the sign effectively negated of purpose order. The trial court found the removal “interrupt[ed] orderly flow of the court’s business.”
Appellant excuses his behavior it claiming necessary was to security. Again, maintain court appellant substituted court’s directive with his own of what was view best for security. unilaterally He overruled the court’s considered judgment. By preventing public from learning of a means courthouse, of alternate access to the he intentionally preclud- ed the public transacting from business with the court.
IX. FAILURE TO RETURN ORDER Appellant Judge contends that Baskervill had no right to enter his office and demand the return of the court order no sign, but he cites authority that statement.10 The 1) Judge issues here are whether right Baskervill had a sign demand the return of the and order removed from the door, 2) she, courthouse if fact, she had that right, did that By make demand? failing any authority cite brief, of this in his support argument opening has 5A:20(c). provisions violated Rule unsup “[Statements ported by argument, authority, or citations to the record do Buchanan, not merit appellate consideration.” Buchanan v. Thus, 14 Va.App. 415 S.E.2d will we on not consider this issue It should also appeal. be noted refusing Judge was convicted Baskervill’s entry into his office. § may
10. Code enter 53.1-127 restricts who the interior of local facility. correctional lawful process convicted disobedience Appellant 18.2-456(5). court, under or order an officer Baskervill Judge no lawful order since there was He claims and order. sign return of the authority no demand had See authority proposition. no for this Again, appellant cites 5A:20(c). appeal. on not address this issue Rule We will judge’s demand complied he with Appellant argues also Judge the order deputy next when a returned day he is no evidence Continuing, claims there Baskervill. of the order. immediate return language requiring used she next Thus, he returned the order the appellant concludes since compliance he was in with her demand. day, Judge compels A of the record us conclude review the return extremely it clear she demanded Baskervill made papers for the a number that instant. The asked *27 I testified, to it. She “I didn’t to talk him about times. wish refused, just merely pick my papers up.” Appellant wished order, the he to read read stating Appellant wanted them. again judge Appel- the asked for their return. appellant lant he not the order to her but he did responded give would give her She left office. sign. appellant’s the the clearly judge
The
knew
appellant
evidence
indicates
the
sign
Appel-
demanded both
order and the
then and there.
the
give
lant
the
but refused to
her
order.
gave
sign
her
Michaels,
601, 529
Va.App.
cites
Appellant again
822,
there
no
the
arguing
express
was
directive
return
Michaels,
a
then
In
the court continued
order
and there.
at
criminal
so that
could be evaluated
trial
defendant
604,
Id.
at 824.
Hospital.
Central State
at
529 S.E.2d
While
sheriff,
not
order
to the
order did
copy
was sent
prisoner
hospital.
to the
Id.
transport
direct
sheriff
of contempt
transport.
for failure to
The sheriff was convicted
context,
Id.
at
In that
we held the
529 S.E.2d
825.
expressed,
in
must
Id. at
implied.
command
the order
case,
However,
609-10,
in
instant
We find the court did not err in appellant criminal for return contempt failure to the court order.
CONCLUSION 1) find that the trial finding We court did not err in: Judge authority 16,2002 Baskervill had to enter the April and July 2) orders; failing to advise appellant whether the charges 3) criminal; against him were civil or finding appellant violat- 18.2-456(4) ed Code for leaving courthouse without 4) security; finding that superseding did legislation not relieve appellant entrance; from providing deputy at the courthouse 5) to admit refusing evidence of “impossibility” comply with 6) orders; the court finding violated the 7) order; finding removing 8) door; from the July finding order courthouse right Baskervill had a Judge appellant’s to enter office and July demand return 2003 documents. find the We ruling sitting trial court’s that a circuit court competent testify contempt proceedings those was re- versible error and this error was not harmless. Accord- we ingly, reverse and remand for further proceedings consis- tent with this if opinion be so Commonwealth advised.
Reversed and remanded.
HUMPHREYS, J., FELTON, J., joins, with whom dissenting.
I in majority’s analysis holdings respect concur the with I presented to all issues in this appeal, Specifically, save one. respectfully disagree majority’s must with the conclusion that § of plain language Judge the Code 19.2-271 barred Basker- vill I testifying contempt hearing. Although from the in entirely agree that the “victim of crime” language Code situation, § 19.2-271 to this factual I believe inapplicable that the of plain language encompass the statute does considered, the in testifying judge situations where had not
721 testify- about which she was capacity, the “matter” judicial her court’s to admit Thus, I affirm trial decision would the ing. testimony. Judge Baskervill’s judge part, that provides, pertinent § “[n]o 19.2-271
Code any which came ... as matter competent testify shall be (Emphasis official him the course of his duties.” before added). “matter” interpretation I agree majority’s with the Law as, subject consideration.” Black’s under generally, “[a] (7th 1999). believe, however, that I ed. Dictionary impor- or another interpret apply to either majority neglects “came statute: appearing language tant in this phrase view, of the stat- my majority’s In construction before.” phrase virtually meaningless, thereby giving this ute renders construction “elementary statutory to the rule short shrift its full ef- must be every given that word the statute fect____” Home Ins. Co. v. Unemployment Beneficial Life 159, Comm’n, Va. Compensation S.E.2d (1943). duty’ states that is the ‘official
Specifically, majority “[i]t ‘matter,’ controls.” not the location of the that judge, However, before,” “came I believe the by using language judge manifested intent that must legislature its clear capacity. in his or her judicial have considered “matter” statute not indicate must Although the does that matter a trial formally presided during have over the before,” narrowly I “came when hearing, language believe construed,11 must present- indicates that the matter have been majority Judge [Epps] pre- "sought asserts Baskervill out 11. The that cisely entry of her in the the orders and because official involvement majority them.” then Epps her belief that Sheriff had violated The Judge was course of these 'official duties’ that "[i]t concludes in the Beyond which Baskervill observed the behavior about she testified.” Judge disagreeing it is conclude that Baskervill reasonable to fulfilling any duty” Epps, such an “official when she confronted Sheriff language ignores expansive interpretation plain statute of this statutory important principle Statutes that construction. another ... must be "operate to limit the introduction of relevant evidence strictly 236 Va. construed....” Bennett Thus, frustrates because 19.2-271 *29 722 judge
ed to the in a manner involving some form of a process. differently, deliberative matter Said the must have “come before” the when was in position actually she a to on pass judgment that issue. particular Here, although Baskervill the 16 Judge April issued and and, thus, 1 July orders should not have permitted been testify orders,12 as to the substance those she did not issue the show cause order for Nor she contempt. preside did over any the hearing regarding any issue form of a judicial opinion decision or regarding the Sheriffs misconduct. Thus, although July the 1 certainly orders “came her, the violated before” “matter” of Epps whether Sheriff those did orders not. it the that Because was latter was “under consideration” at contempt hearing, and about which Judge I primarily sought Baskervill that testify, believe § Code 19.2-271 did not in- Judge wholly render Baskervill competent testify at the contempt hearing.
Finally, notes, the majority Judge as en Baskervill was in official duties when she observed gaged course of her But is contemptuous judicial conduct. that not the behav Rather, ior at which statute is directed. I believe the considered judge must have contemptuous conduct while in the judicial Observing course her duties. a defendant’s misconduct not equivalent considering that conduct Commonwealth, Carter judicial capacity. 12 Va.App. Cf. (1991) 158-59, 408 S.E.2d 361-62 identi- (construing fact-finding process by disqualifying individuals who would other- testify, competent narrowly wise the statute should be construed against disqualification of the witness and in favor of the admissibil- id.; Bowers, ity of evidence. See also Va. & see Elec. Power Co. v. 542, 546, (1943) ("While Va. 25 S.E.2d this statute has its law, and, therefore, derogation purposes useful it is in of the common construed.”). strictly must be However, regardless because those orders were admissible of wheth- 12. Judge hearing, er Baskervill testified I also believe that was error Young v. harmless. See 479, Va. 75 S.E.2d (1953) (holding, contempt proceeding, of a context "[fjormal necessary proof [underlying] order not as the court order”). judicial its could take notice of own of court pertaining 19.2-271 to clerks cal language from prevent a clerk statute “does concluding ministerial performed he has how whether testifying function”). *30 not err in I would that the trial court did
Accordingly, hold testify at Judge competent Baskervill was concluding conduct of contempt hearing regarding the out-of-court sought because about which she the “matter” Thus, I dissent testify respectfully never “came before [her].” analysis holding portion majority’s from judgment would affirm the of the trial court.