Hendershot v. Handlan

special prosecutor appoint- appointment The VI, Art. 40 of the ment to office and violates Sec. West Certainly Virginia the constitution does Constitution. appointments authorized un- not differentiate between by authority appointments der election laws and Poling: other laws. As noted upon any Legislature not confer shall power appointment judge, to of-

fice, provided further than the same is herein for,” sayeth language the Constitution. That expositor. plain its own The words are too positive The mandate is too to evade. mistake. provision made No Constitution power appointing prosecut- whereunder ing attorney may be conferred on circuit courts judges. S.E. 779. Hendershot, Blaine Sr.

James Joseph Handlan, M. The Honorable Judge, etc. (No. 14110) Decided October 1978. Lantz, Eugene Sr.,

Hague, Rudolph, Hague Hague, & T. George and E. Lantz for relator.

Joseph pro M. Handlan se.

Caplan, Chief Justice: original proceeding prohibition petition-

In this er, Hendershot, Sr., prohibit- James Blaine seeks a writ ing respondent, Joseph Handlan, Judge M. County, conducting Circuit Court of Wood from a trial proceeding against petitioner and further in a con- tempt pending matter now said court. controversy

This arises as a result of a divorce action October, Hendershot, instituted James Blaine Jr., petitioner, against the son of the Jennie Lou Hen- preliminary hearing July A dershot. was held on 1977, during testimony which the court heard from wit- parties parties nesses for the and from the themselves. At the conclusion of that the court awarded custody daughter mother, of the infant to the Jennie Lou. awarding custody July

The order such was entered on and, providing support money after for the attorney’s fees, proceeded child and as follows: “The having Plaintiff, Court learned that James Blaine Hendershot, Defendant, Jr. did not turn over to the Jen- Hendershot, nie Lou parties the infant child of the ... grandparents, and further James B. Hender- shot, Hendershot, wife, Sr. and Anna his have absconded with the child ... the Court does direct Clerk capias ... or ... to the Sheriff Court to issue Circuit arrest officer ... to forthwith other law enforcement Hendershot, Jr., James apprehend Blaine and James Hendershot, Anna Hendershot ... Blaine Sr. Handlan, Judge Joseph ... whose M. deliver the same County ... in the Wood Courthouse office is located Judgment.” hear Court’s capias July 1977 order a was result of the

As a and, 6, 1977, James Blaine Hender- on November issued shot, incarcerated in the Wood was arrested Sr. imposed in County Bond was Correctional Institution. $20,000.00 posted he November the amount The bond was to 7, 1977, which he was released. after appearance the circuit court on Decem- before secure his why he should not be held to show cause ber contempt of court. Court, by order filed November

The Circuit Hendershot, mother, Jennie Lou directed the infant’s petition charging Blaine Hender- James file a Hendershot, Sr., Jr., and Anna Hen- shot, Blaine James directing contempt and them with of court dershot to show appear court on December before said contempt. The why they held in should not be cause and, 22, 1977 contempt petition was filed on November day, 1977 for a the court set December that same hearing on the matter. by the motions were filed 1977 several December

On disqualification petitioner, one of which moved illness, petitioner, By reason of his Judge Handlan. a motion for a continuance. filed on December granted mat- and the a continuance was The motion for January for a bill 1978. Motions continued to ter was granted discovery but mo- for were particulars and disqualification trial, were jury dismissal and for a tions prohibition proceeding in followed. This denied. following questions: raised

Petitioner 1) petitioner punish the court can a court order when alleged violation of for an proceeding? party to the he was not a 2) petitioner does the fact that pur- was arrested capias

suant to a issued at the court’s in- preclude stance subsequent proceedings against him where he had no notice of charge having against prior been made him his arrest? petitioner

While party was not a pro- to the divorce ceeding, he was a witness at the plead- and the ings disclose that he had actual notice of the court’s custody decision to award of the infant to the mother. apparent seems that because of relationship his to his and, having physical son custody child, he was acting in concert with him to frustrate the court’s order. person may adjudicated A be in contempt of court for violating an order of which he knowledge, has actual notwithstanding the time of the violation the yet order had formally been up. drawn Belden v. Scott, 150 Ohio St. 83 N.E.2d Likewise, person party not a proceeding who had actual knowledge may the court’s order charged with violating for such if acting he is in con- privity party. cert or with a City Chase National Bank v. Norwalk, (1934); Mfg. U.S. 431 Corp. Alemite Staff, (2nd 1930). 42 F.2d 832 Cir. Code, 1931, 61-5-26, provides courts

judges thereof issue attachment punish summarily them in the instances enumerat Contempt may ed therein. be civil or criminal. Where the primary purpose preserve is to authority the court’s punish orders, disobedience of its primary criminal. purpose Where the provide is to a rem edy injured for an suitor and compliance to coerce contempt an order the may is civil. The same act consti tute both civil and contempt criminal contempts and wholly be neither altogether civil nor criminal but may partake of characteristics of both. State ex rel. Ar Conley, nold v. _ W.Va. _, 153 S.E.2d 681 We think this is so in the instant case.

The court was aware of the made disobedience its custody that the infant was not surrendered designated. Instead, to the mother the time the fa- ther, grandfather grandmother, absconded, alleged- and ly taking Code, 1931, the infant with them. W.Va. 61-5- 26(d) provides may punish summarily that the court for process, judgment, ... “disobedience to lawful de- this, cree or order of said court.” Pursuant the court capias directed the issuance for partici- all three pants. petitioner, child, grandfather the was the one found. While we believe that the court could proceeded try petitioner contempt have under (d) above, section the court directed that petition by upon be filed the mother and served petitioner participants. other contempt petition being

Action on the one civil con- tempt, summary punishment was not available to the A petitioner court. rule to show cause was served on the hearing yet and a was set. The matter to be heard so petitioner’s complaint guilty he has been found punished plain is without merit. The purpose capias prevent was to further disobedi- appeal ence of the court’s lawful order. No of the court’s custody by order was taken father of the child. Sub- sequent father, grandpar- said order the child and the simply disappeared. appears they sought ents It process evade of law and take matters into their own will hands. be determined hear- ing assumption whether such is true.

Relying Mississippi, Johnson 403 U.S. 29 L. petitioner Ed. 2d 91 S. Ct. 1778 contends hearing that he was entitled to notice before he was Johnson, held, In it “If arrested. was some essential personally elements of the offense of are not judge, depend upon observed so that he must knowledge statements made for his others about elements, process requires those essential due alleged contemnor be fair accorded notice given opportunity at which he is to show that judge was alleged contempt related to the version of the incomplete.” inaccurate, misleading, or and a hear- with notice petitioner has been served The hearing prohibit that He seeks to ing had been set. capias apprehended on a ground that he was the sole appearance assuring post bond his required and explanation, having petitioner, hearing. The without the July 17, 1977 to process of the law from the evaded 6, 1977, gave no reason to believe the court November designated time appear at the he would that by capi- apprehension of a use was had to unless resort in circum- the court’s action the believe that as. We justified. presented here was stances Kirby, the 130 S.E. 86 In Ex Parte contempt proceedings history shows “The of court said: judges inherent and courts the the law concedes to that authority an attachment in the first to issue and rule, the case is instance, an antecedent where without flagrant.” Reflecting the lati- urgent the 1, Syllabus in Point of State West tude afforded courts of Hart, 24 W.Va. 416 “Where Virginia v. Frew open court, in the usual not committed why an attach- a rule to show cause is to issue course issue, though the attachment some- not ment should support In further in the first instance.” times issues expression judge’s in the instant case is action Kirby, supra: “The attachment herein is of the Court court, the same merely process and serves whereby writ an accused purpose a warrant or other as directing The order and held for trial. apprehended petitioners purport to find the does not the attachment opportunity to be heard guilty, extends to them but (emphasis opinion) ...” Kirby, supra Frew and expressed principles capias at bar. The Hart, supra, applicable to the case are purport respondent to find the by did issued merely provided güilty but petitioner charges. held to answer he could be means such as in circumstances urgent that a trial It is here, presented provided with the means which it require can enforcement its lawful orders. respondent judge

Here acting believed he was child, paramount best interest concern custody. given consideration child’s He was reason to believe his being disobeyed order was petitioner’s contrary action was to the child’s Consequently, best interest. the court believed that it imperative quickly was it decisively, that act and both protection for the require child’s welfare and to obedience of its order. opinion, lawful We are of the firm case, in the respondent circumstances that fully justified issuing capias was in imposing and assuring petitioner’s appearance bond hearing at a guilt contempt. to determine his or innocence of reasons, foregoing prohibition For the writ of denied. denied.

Writ concurring part dissenting in Miller, Justice, in part:

My goes majority’s sanctioning dissent to the of the of an use attachment arrest this case. I concur ultimately the final court placed result since trial procedural footing. on a correct I majority correctly While the states the rule of non- liability party’s syllabus, I the first do not that believe on the record in this case there awas showing sufficient factual to warrant an the issuance of arrest attachment. majority acknowledges contemnor, B. James Sr.,

Hendershot, party original was not a to the divorce action, daughter-in-law. which was between his son nothing There is in the record before us show he to that knowledge requiring actual had order that son his custody transfer child to his wife. the court filed with petition or affidavit no

There was concluded it could have which setting facts on out knowledge the divorce had actual that the contemnor mother, or custody to the transferring of the child acting in concert was the contemnor show that facts to the order. violate father with the custody, transferring which the order Included within violated, is this statement: to be claimed the order grandparents ... having ... learned “The court ...” The trial court the child with have absconded be arrested the contemnor authorized same order judg- court’s “to hear brought the court before July 12, 1977. entered order was ment.” This facts, we know not. of these learned How the court held at was that a further represented testimony given the court was time sworn the order notice of grandfather had actual show father with the child’s acting in concert and was custody. obtaining from mother prevent charged nonparty cannot be A legal knowledge it unless he is if he has order even acting in concert order or is party to the privity with a terms, as stated United violate its party a 1976): (E.D. 510-11, La. IBEW, 72 F.R.D. v. States of the consent knowledge of the existence “Mere privity. Zenith to establish insufficient decree is L. Ed. 2d 23 Corp. U.S. [395 v. Hazeltine. (1969)] doing Likewise, the mere 1562 89 S.Ct. contempt. grounds act is not prohibited the decree described which the act is not ‘[I]t the defendant forbid, only that act when may but Staff, Manufacturing Corp. v. 42 it.’ Alemite does 1930). degree (C.2, of active Some 833 F.2d signatory must be shown with a participation showing privity. The mere to establish Kline, Heyman enough. v. not interest common 1971).” (C.2, 444 F.2d 65 Carpen Sequoia District Council also NLRB See (9th 1977); v. International Cir. EEOC ters, F.2d 628 (4th Association, Cir. 541 F.2d Longshoremen’s 1976); University Denton, New York v. 35 A.D.2d (Sup. 1970); parte Davis, N.Y.S.2d Ct. Ex (Tex. 1971); Hall, S.W.2d United States v. 472 F.2d cf. (5th 1972). Cir.

Judge Mfg. Corp. Staff, Learned Hand in Alemite (2nd 1930), F.2d 832 Cir. discussed the rationale behind this rule:

“On the other hand no court can make a decree party; which will bind one but court equity law; is as much so as a limited court of it lawfully enjoin large, cannot the world at no broadly matter it how words its decree. If it as- so, pro sumes to do decree tanto brutum fulmen,1 enjoined persons are free to ignore it. the act “[I]t not described which decree

may forbid, but when act the defendant does it.” F.2d at [42 832-33] exceptions

He went on note general two to the rule: respondent “This means must either defendant, legally abet or must be identified with him.” F.2d at 833] City Norwalk, In Chase National Bank v. 291 U.S.

436-37, 894, 898, 475, (1934), nonpar- 78 L. Ed. 54 S.Ct. ty’s status was discussed: persons technically “It agents is true that

employees specifically enjoined from knowingly aiding performing defendant prohibited if act their relation is that of associate persons legally or confederate. Since such are privy identified with the defendant his contempt, provision merely explicit makes as already implies.” to them the law [ci- tations omitted] Alemite, supra, proposi- National cited

Chase for the persons tion that to treat as a conduct 1Loosely part empty translated from the Latin “as to that noise.” relationship extend the con- bearing is to such a

not persons act who power against “the conduct tempt adjudged rights have not been independently and whose subject that: “To according The Court concluded to law.” equi- principles peril violates established them to such 437, procedure.” 78 L. Ed. ty jurisdiction U.S. at [291 898, at 477] 54 S.Ct. at Bot- Supreme State Court Golden

The United States NLRB, L. Ed. 2d 94 S.Ct. tling v. 414 U.S. Co. question privity and re-af- (1973), spoke to the Regal v. Knitwear Co. firmed its earlier decision (1945), NLRB, L. Ed. 65 S.Ct. 324 U.S. 65(d) of the Federal Rules it held that Rule where subject Procedure, concerning persons to an Civil essentially order, followed the common law: 65(d) from the common-law “Rule ‘is derived injunction a decree of doctrine parties also those identi- defendant but binds interest, “privity” with fied with them subject them, represented them or to their Knitwear, US, Regal at 89 L. Ed. control.’ L. Ed. 2d at 94 S.Ct. U.S. 661.” at 422-23] jurisdiction directly find a case in our I do not

While Finley issue, me that ex rel. it seems to State Freshwater, 210, 148 S.E. Bros. Robertson, 648, 22 S.E.2d 287 Freshwater, In with this law. are not inconsistent in- party named in the bill for that a Court concluded injunction order, although junction, not named enjoined person and therefore could collect dam- was a injunction. Clearly party wrongful had ages from opportunity un- had the to answer served and been derlying suit. nonparties who had actual notice

Robertson involved directly injunction proceeded conspire of an injunction named defendants to violate holding nominating prohibited con- which had Obviously participation with the their direct vention.

185 parties knowledge injunction brought named after foregoing within the them rule.

Here, nothing there is in the record to demonstrate actually the contemnor knew of existence of the custody transferring daughter-in-law. to his Like- wise, there is absent factual basis on court could have concluded that the contemnor was act- ing in concert the defendant to violate the transfer properly order. Before court could consider whether warranted, the issuance an arrest attachment was brought such facts must have to the been attention petition court verified or affidavit. II peculiar posture require While the of this case does not holding for the procedure actual discussion of sur- rounding attachment, contempt an arrest since the final subsequent on properly rests rule to issued cause, feel, I show nevertheless view of the lack of any developed subject, statement that some stan- so, dards should set. In order to do a review of the safeguards procedural in our set law useful applicable how determine these standards be to an arrest attachment.

Despite language majority opinion that con- tempt criminal, firmly can be either civil or it has been a principle established in our law of punishment proceeding for its is criminal in character governing and the rules of evidence criminal are trials applicable. Conley, ex rel. Arnold v. State plain: 153 S.E.2d 683 makes this

“ proceedings ‘Whether civil are or crimi nal, court the nature aof offense, proceeding criminal pun for its character, ishment criminal its and the governing rules of evidence criminal trials are * * applicable. Contempt, 4 M.J. Section page effect, Am.Jur.2d, 242. To the same see page 72; Contempt, Section ex rel. Alder State Cunningham, 607, pt. 1, syl., son v. W. Va. 331; Davis, 76; 40 S.E. v. 50 W. Va.

S.E. State Bittner, 102 v. ex rel. Continental Coal Co. State 968]; syl., 677, pt. 2 A.L.R. 136 S.E. W. Va. Devore, pt. Taylor v. 134 W. Va. ex rel. State Engineer- 641; syl., ex rel. Hoosier 58 S.E.2d State Thornton, 230, pt. syl., ing v. 137 W. Va. Co. 203; ex rel. ex rel. [State State Cox S.E.2d Taft 106, pt. syl., Taft], 100 S.E.2d 143 W. Va. Cox 161.” apply in a rules of evidence

Not do criminal proceeding, demonstrated the follow- but as Engineering ing language from ex rel. Hoosier Co. 239, 203, Thornton, 230, 208 72 S.E.2d v. underlying on which the affidavit or information sufficient facts cause is issued must contain rule to show constitute an offense: to v. Lew rel. Ben Franklin “In Coal Co.] State [ex 812,

is, 529, stated: 113 Va. 168 S.E. Court W. * * contempt And, prosecution is in since crime, prosecution such nature information should state the acts affidavit certainty constituting great the offense with as required proceedings. criminal State [ex as Bittner, v. W. rel. 102 Va. Continental Coal Co.] 968]; Davis, 677, v. 202 A.L.R. State [49 136 S.E. 331; 100, Ralphsynder, v. 50 W. Va. 40 S.E. State 352, 721, rel. Va. 12 S.E. State 34 W. [ex Alderson] 607, Cunningham, 11 In 33 W. Va. S.E. 76.’ v. Komar, rel. Mineral v. State Coal State [ex Co.] 810, 526, held: ‘To 168 S.E. this Court 113 W. Va. support adjudication the informa issued, affidavit, upon which the rule is tion or to consti must show on its face facts sufficient Gibson, v. Va. the offense.’ See 33 W. tute State 58; C.J.S., Contempt, 97, 17 Section 72.” 10 S.E. salutary Obviously, safeguards have been in these premise law on the basic into our fused contempt proceed liberty property in a are at stake jail. power fine and ing of the court’s See reason _ W. _, 468, Dingess, Va. 236 S.E.2d v. Smoot (1977) protections (concurring opinion). arise from These Due Process Clause of our and Federal Consti- tutions. States, 517,

In 537, Cooke v. United 267 U.S. 69 L. Ed. 767, 774, clearly 45 S.Ct. the Court linked the Due Process proceeding, Clause stat- ing: process law, therefore, prosecu-

“Due contempt, except tion of of that committed in open court, requires that should accused charges advised on the opportunity and have a reasonable by way to meet them of defense or explanation. We think this includes the assist- counsel, requested, ance if to call give testimony, witnesses relevant either complete exculpation the issue of or in extenua- mitigation penal- tion of the offense and in ty imposed. Hollingsworth Duane, to be See 6,616] Sr. Fed. No. [Wall. Cas. Fed. Cases 360; Stewart, 455]; In re 118 La. [43 So. (N.S.) parte Clark, Ex 208 Mo. 121 L.R.A. 990].” S.W. While dealt with Cooke federal district concept process there is no doubt that its due contempt procedures binding has been made on the Groppi Leslie, states. 404 U.S. 30 L. Ed. 2d (1972); Mississippi, S.Ct. Johnson v. 403 U.S. (1971); 423, Oliver, 91

L. Ed. 2d S.Ct. 1778 In re 333 U.S. 257, 682, 92 L. Ed. 68 499 S.Ct. Illinois, 194,

In 522, Bloom v. 20 391 U.S. L. Ed. 2d Supreme the S.Ct. United States Court made analysis background an extensive of the common law of review, contempt. In the course of it made this state- ment: long recognized potential

“The court has the exercising summary power for abuse in imprison the ‘arbitrary’ power for is an —it parte Terry, which is ‘liable abuse.’ Ex 289, 405, 412, 77, U.S. L. Ed. [32 S.Ct. (1888)]. one, exercise is a ‘[I]ts delicate and care arbitrary oppressive is needed avoid or conclu- States, 517, 539, 267 U.S. sions.’ Cooke United 69 Ed. L. 45 Ct. S. ^[396] (1925).” ^[39] 1482] Ed. at 88 S.Ct. at 20 L. 2d U.S. at apprehen- parallel spoke in Bloom also of The Court authority “open-ended to deal Congress in over sion lodged by the law in the contempt,” common courts, in substantial abuses: which had resulted curtailment of the con-

“The result was drastic tempt 4 Stat 487. ... power in the Act of That Act limited the omitted] [citations presence of the power in the to misbehavior justice; as to obstruct or so near thereto court in their official court officers misbehavior of transactions; of or resistance to and disobedience writ, of process, order or decree the lawful 203, 20 L. Ed. 2d at at court.” U.S. 1483]

S.Ct. in parallelism can be found this State A similar Code, This Legislature’s 61-5-26.2 enactment of appeared in Virginia, where it provision from was taken 24-26, Chapter 195, in Sections of identical form almost originally Virginia, having en- of been the 1849 Code may judges for and thereof issue attachment “The courts summarily only following punish in the cases: them (a) court, presence or near thereto as of so Misbehavior (b) justice; interrupt of the administration violence to obstruct or court, judge to a or officer of the or or threats of violence to returning to, attending juror, witness, party going or from or had, any proceeding had, court, respect or to be in act or or (c) court, court; in his of an officer such misbehavior (d) any character; to or resistance officer of disobedience official witness, person, any process, court, juror, lawful or other shall, judgment, No or of the said court. court without decree (a) any jury, as is mentioned subdivision such fifty dollars, exceeding imprison section, impose or more a fine impanel jury any days. But such case court than ten (without pleading) formal to ascertain an indictment or inflicted, may give judgment imprisonment proper to be fine or impose contempt, according a fine for verdict. No court shall to the present shall have been served unless defendant cause, day, some certain rule the court to show with a appear cause.” have failed to and show shall acted in Assembly the 1830-31 Session of the General as Chapter 11, Virginia. Section of the 1831 Acts of Court, Alpha Corp.,

This in Hallam v. Coal 454, 459, (1940), spoke scope S.E.2d on the section, stating: this which, by language,

“[This] section its conferred upon jurisdiction punish summarily the courts contempt, listed instances of including misbe- havior of an officer of the court in his official character, expressly ... proceeding excludes summarily all other cases.” Earlier, Porter, in State ex rel. McNinch (1928), 143 S.E. 93 McClaugherty, State v. 33 W. Va. 10 S.E. 407 the Court held that this statute was not unconstitutional restraint on judicial power punish inherent of a court for con- tempt.3 important Code, 61-5-26, to realize that W.Va. ais

limitation power summarily on the court’s to deal contempt; is, jury to act without and with- McNinch, speaking out indictment. of the statute point, stated: chapter 147, “Section been has held consti- McClaugherty, tutional. State v. 33 W. Va. 250 [10 S.E. It is there said that 407]. statute is sim- ply regulation proceedings and not upon jurisdiction limitation courts cases; and that under section punishment. courts have ‘an efficient means of They have the time to call before grand juries, petit them both and under they may delay statute with but little as —almost summarily punish as before the such statute — contempts. The statute as such courts regarded regulation, and, perhaps, well be as a Virginia Commonwealth, court in Carter v. 96 Va. portion statute, S.E. 780 declared the of its which had been Assembly provide amended in the 1897-98 session its General jury contempt, in all trial cases of indirect to be unconstitutional. ” at

necessary proper [105 limitation.’ W.Va. 445-46, 143 94-95] S.E. at understanding our law of of is critical to also Code, 61-5-26, desig- contempt to realize that while W.Va. summarily categories a court act the where nates contempt, prosecution this does not mean in the procedural no safe- in instances there are these Mylius, 61 guards. parte in Ex W.Va. 56 This Court contempt (1907), discussing for to in a failure S.E. 602 following syllabus: alimony, law in its pay set why person a shall not “A rule to show cause guilty contempt in adjudged of must be served party charged.” person on the committing jail upon judgment “A to or decree, contempt disobeying charge a a of void, person, a made in the absence imprisoned it relieved a person under will be corpus." writ of habeas “summarily” in connection with a The use of the word historically contempt right proceeding has meant of contempt proceeding the court to entertain without necessity right jury indictment or the to a trial.4 of Certainly Mylius requirement emphasizes of notice contempt “Mylius charge right heard. to be background summary procedure The of traced historical Power, Fox, Goldfarb, Contempt (1963), at 9-19 and in The in R. Summary The L.Q. Contempt, Rev. Process to Punish Pt. (1909). much of the extension of the sum Goldfarb concludes that punishment King mary power The v. Al for rests on opinion that has been shown to contain mon an undelivered Fox, King Almon, historical inaccuracies. See number of L.Q. Rev. 184 foregoing articles but Sir John Fox demonstrates Attachment, L.Q. article, Rev. 43 in a later The Writ of summary precedential proceedings basis person presence of the court and attachment of the out of extremely Illinois, meager at at common law. Bloom 391 U.S. 1480-81, inadequacy L. at n. Ed. 2d at 88 S.Ct. noted precedent, recognized that law but most courts common country summary proceedings in the use of con- have sanctioned presence tempt, committed within outside whether theory court, it was sanctioned at law. on the common hearing, day purge had to a him- being prison.” self of before sent comports at 603] S.E. This with the standard Cooke, previously set which has quoted. been Despite contrary,5 some statements this Court fidelity has with considerable pro viewed ceeding, regardless might whether it be labeled civil or criminal from standpoint, a substantive to be from a procedural viewpoint quasi-criminal in nature. ex Conley, supra, rel. Arnold v. and cases cited therein. approach, There is much merit to this as it avoids regard what most pursuit commentators as a difficult trying by to determine in advance some standard wheth- contempt proceeding er the is civil or criminal.6 Code, 61-5-26, regarded While W.Va. has been aas limi- power punish tation on summarily of court to contempt, completely I do not share this view. If the weighed against statute right, the common law which appears contempts to have pres- been limited to in the court, provides ence of the right statute broader punish summarily.7

The statute does set a limitation on the amount of punishment may meted out one instance. Un- Code, 61-5-26(a), der W.Va. which relates to misbehavior presence court, exceeding fifty of the “a fine dol- lars, imprisonment days” more than ten not be imposed empaneling jury. without course, contempt

Of even this area of direct in front recognized it has been there are cer- process procedures tain elemental due that must be af- Taylor Haynes, forded. In v. 488, 418 U.S. 41 L. Ed. 2d 897, (1974), 94 Supreme S.Ct. 2697 the United States 5 Smith, v. Smith 81 W.Va. 95 S.E. 199 6 See, e.g., Goldfarb, Contempt Power, supra 49-67; at J. Os Contempt Court, wald, (Robertson 1910); Dobbs, Con at 1-18 ed. tempt Survey, A (1971); Court: v. Johansen 56 Cornell L. Rev. 183 State, (Alaska 1971). 491 P.2d 762-67 7 See n. 4. power judge “for trial has the that while the

Court held courtroom, maintaining purpose con- summarily notice or punish and without presence and ob- in his temptuous conduct committed 497, 41 L. 2d at by at Ed. him” U.S. [418 served power 2702-703], if elects not to exercise at he S.Ct. occurs, then the court should time the at the specific charges provide notice “reasonable at behalf.” U.S. opportunity heard in his own to be at 2703] L. 2d S.Ct. Ed. process re- provides standard another due Bloom contempts where quiring jury in serious criminal trial keyed imprisonment this consti- six months. exceeds contemporaneous holding in Duncan tutional Louisiana, 2d U.S. L. Ed. S.Ct. jury provide a in all required states involving except petty those offenses. criminal trials Doe, Corp. Court, in Eastern Associated Coal This _ _, discussed some S.E.2d 672 required appointment aspects case, indigent. In that the contemnor counsel where proceeding, which found that Court injunction result- order that the violation of involved punishment fine and six in a maximum ed $500 pro- imprisonment, was a criminal months’ ceeding.8 Corp. was followed Smoot

Eastern Association Coal _ W. Va. _, (1977), where Dingess, 236 S.E.2d 468 v. stated: Court light Corp. contempt did not discuss Eastern Associated Coal Code, 61-5-26, it cite or consider the ramifications nor did of W.Va. whether, open question as is therefore of v. Illinois. Bloom Constitution, 14, Virginia III, West Section of the under Article crimes, misdemeanors, requires herein of and unless “trials by jury provided, men ...” a of twelve sets shall be otherwise contempt jury higher trial in criminal than standard directly except contempts imposed federally by Bloom, toas those recognized occurring were which the common law before the court summary province. This issue is not before us in within the court’s present case. “Regardless of contempt whether proceeding is criminal, civil or defendant has the counsel, represented by indigent if he and appointed represent counsel must be him.” 471] S.E.2d summary, In I requires that, believe our law regardless of whether is labeled civil or criminal, following procedural safeguards man- are Clause, dated the Due III, Process Article Section Virginia first, of the West adequate Constitution: an no- contempt charge tice opportuni- and reasonable ty heard, to be ex Engineering rel. Hoosier Co. v. Thornton, (1952); parte 72 S.E.2d 203 Ex Mylius, (1907); second, 61 W.Va. 56 S.E. 602 the as- counsel, or, sistance of retained indigency, in the case of appointed counsel; third, proceed- a record of the ings, Dingess, supra; fourth, Smoot v. application evidence, criminal rules of State ex rel. Arnold v. Conley, (1966). 153 S.E.2d 681 The one exception procedures that, to these where the con- tempt presence is committed of the court and punish observed it and the court elects to the con- tempt immediately, Taylor Hayes, it do supra. so. v. is within perspective procedural this broader safeguards proceedings our law that an arrest attachment must be viewed. While it is true person attachment for the arrest of the for a recognized law, sparing- was at common it was ly may only used and have been available where the alleged respond contemnor did not to the rule to show though practice cause.9 Even has obtained in this country, appears it way to have received little in the analysis.10 Supreme expressed The United States Court practice States, its aversion to the Cooke United 9 Fox, Attachment, (1924). The Writ Rev. 43 L.Q. 10 See, e.g., Planning Zoning Bros., Commission v. Zemel State, (1971); Supp. App. Robinson Conn. 292 A.2d 267 Ala. Croucher, (1964); Croucher v. App. 168 So.2d 491 2d Ill. 200 N.E.2d 854 it when L. Ed. 45 S.Ct. 390 U.S. stated: writ attachment that is not shown

“It copy of the order contained petitioner had an that are advised we charges until purport idea of the exact case, long after so In such a was read. order prac- proper delay, have been it seem to would Blackstone, 4 Commentar- tice, as laid down to show cause. rule ies, to rule issue enough to inform de- have contained should charged. nature of the fendant Duane, Hollingsworth Fed. [Wall. Sr. See 6,717] 367, 369. Without 12 Fed. Cases Cas. No. supposing a rule any ground that shown brought alleged contem- not have would nors, the circumstances it was harsh under L. Ed. at the arrest.” U.S. 395] 45 S.Ct. at an attach- Laying aside the historical antecedents clearly person, process noth- amounts ment of the person. I find it difficult ing than arrest of the more measure, extraordinary unattended as to reconcile this safeguards, by procedural mod- it seems to process. concept procedural ern due of the arrest attachment of the harshness Because important it procedure, I it is be surrounded think my To mind it rath procedural safeguards. certain recognize anomalous, say least, that we er property without notice and person’s cannot be seized extraordinary interest, An hearing, absent some state _ W.Va. _, (1977); George, 233 S.E.2d 407 derson v. Walden, Payne v. 190 S.E.2d ex rel. procedures yet process due accord no arrest attachment. governing the issuance nothing place, there in the record before In first ini- on what factual basis court us demonstrate tially probable that the contemnor it was decided alleged order. The failure had in fact violated the court’s an act which occurred the child was not to turn over presence of the court. In order to obtain even a rule contempt, cause for an affidavit or information to show must be filed to show the facts constitute Engineering contempt. ex rel. Hoosier v. Thorn- Co. ton, supra. person nothing an attachment of the more

Since arrest, by analogy impose require- I than an would procedure relating ments of our criminal to an arrest. complaint should either be verified or the written contain statement sworn to before court. must support finding probable facts to cause sufficient Code, an act of has occurred. W.Va. 62-1-1 that and -2.11

Furthermore, probable the issue of cause is not settled by finding likely the court’s that it is that the contem- contempt. nonparty committed the If he is a it must nor knowledge underly- that he had actual be shown ing legal privity party order and was either in with a party in violate the Fi- acted concert with order.12 urgent nally, must demonstrate some and com- facts pelling reason for the issuance of the arrest attachment normal rule show cause. lieu of the Kirby, parte Ex

In this connection majority, cited authorized the use S.E. 86 previous rule to show of an arrest attachment where cause had been issued and before similar repeated. Kirby’s reliance on Rex acts of were (K.B. Ferrers, Rep. 1758), Eng. v. Earl 1 Burr. Code, W.Va. 62-1-1: complaint of the essential facts con- “The is a written statement charged. upon stituting made before a the offense It shall be oath justice peace.” Code, 62-1-2: complaint probable appears from the that there is cause to “If it and that the defendant that an offense has been committed believe it, arrest of the defendant shall committed a warrant for the has persons charged any law to arrest issue to officer authorized against the State. More than one warrant issue with offenses complaint.” same pp. cases cited at 2-4. See proposition

for the that an attachment could issue in the instance, misplaced. reading A first case dem- onstrates the arrest attachment issued after respond the Earl refused had several rules to show process had cause detained threatened server.13 say

I do not there are no where instances a court issuing would be warranted an attachment for arrest instance, compelling. the first but the facts must Here, justify there is lack of facts in the record to finding compelling. the circumstances were proceeding

Another in the initial defect is that warrant of attachment served on the contemnor did not give any notice of the facts which constituted the al- leged contempt. Again, required, Syllabus we have Engineering Thornton, rel. State ex. Hoosier v. Co. supra, proceeded upon by where was a cause, rule to show that: prosecution

“In a for of court for an injunction alleged decree, violation of an not presence in committed of the the de- fully plainly fendant is be entitled in- formed of the character cause of accusa- tion.” parallel requirement obviously

A required of notice is in apply by an arrest attachment. I would continue to anal- ogy requirements procedure. our criminal See Code, W.Va. 62-1-3.14 13 Pennsylvania Cummins, The case v. of Thomas 1 1 Yeates (1791), by Kirby, clearly Pennsylvania relied on is the law in today. Magaziner Magaziner, See Commonwealth ex rel. v. 434 Pa. by Kirby A.2d 263 The other case cited to authorize in issuance attachment the first instance is Petrie v.

People, light People 40 Ill. but this must be read in Sherwin, required Ill. 187 N.E. 441 where the court contempts charge opportunity in indirect notice of the and an to be heard. signed justice “The shall warrant be and shall contain or, unknown, any the name of the defendant if his name is name or description by which he can identified be with reasonable certain- safeguard required in procedural an arrest A further alleged contemnor must attachment unnecessary delay. brought the court without before procedure the normal arrest under W.Va. This follows Code, 62-1-5.16 _ W.Va. _,

Certainly, Dingess, S.E.2d Smoot (1977),requires appointment of counsel in case of 62-1-6, ordinary Code, in indigency, as does W.Va. right bail is constitu to reasonable criminal case.16 III, Constitution, Virginia Article Section 5. tional. West extraordinary Moreover, nature of the of the because arrest-by-attachment procedure, view the court should liberally offense is not since a substantive criminal bail charged complaint. ty. It shall It shall describe the offense brought a the defendant be arrested before command county justice the warrant is executed.” standpoint Obviously, must from a mechanical the attachment office, it is the circuit court which has from the clerk’s since issue authorized the arrest attachment. Code, W.Va. 62-1-5: upon making warrant issued a “An officer an arrest under any person making complaint, an arrest without warrant presence, per- shall take the arrested an offense committed his delay justice county unnecessary before a son without person war- arrested without a which the arrest is made. When justice, complaint brought be filed and a shall rant before executing The officer the warrant shall warrant issued forthwith. justice the defendant to the before whom make return thereof brought.” Code, 62-1-6: justice plain inform the defendant terms “The shall and, him, right complaint against to counsel if of his nature of the indictment, presented have a of his offense is to be inform the defendant preliminary He shall also examination. required and that statement to make a statement he is not provide against may the de- him. He shall him be used made attorney with an means to communicate fendant reasonable purpose person of obtain- or other at least one relative arranging commit- ing The defendant shall not be counsel or bail. county jail until he has had from the of arrest ted to or removed arrange opportunity bail. with counsel or to to confer reasonable security measures as the circum- under such He be detained provide bail or if the is unable to warrant. If the defendant stances jail.” unbailable, he be committed to is shall offense involved.17 Should the contemnor not be able to make bail, hearing the court must then schedule a full on the practicable. soon prompt as as The denial of a hearing underlying charge particu- on the is larly concepts process offensive to of due where the con- jail.18 temnor remains in present promptly

In the trial case the court acted to 7, 1977, set bail on after November the arrest on Novem- alleged ber 6. Had post contemnor not been able to bond, setting hearing the trial court’s on Decem- 15, 1977, underlying charge ber on the would sufficiently prompt. not have been

Ill majority I disposition concur with the in the ultimate discharge of the case prohibition. writ of invalidity arrest attachment was cured when a proper petition for a rule show cause was filed and alleged served on the contemnor and the matter set for hearing. point, At this trial longer court was no acting jurisdiction prohibition excess of its would therefore lie.

I am authorized Harshbarger state Justice joins III, II concurring portions Parts of this opinion, joins por- and Justice with me in McGraw all opinion. tions of this extraordinary circumstances, Absent some which are not re case, $20,000 flected the record in this bail is unreasonable type Dostert, _ W.Va. _, of case. State ex rel. Hutzler v. 236 S.E.2d 336 parte Kirby, To the extent Ex 130 S.E. 86 (1925), suggests that a contemnor arrested an under attachment prompt hearing, Kirby has no I would overrule the case. seemingly purpose overlooks the basic fact that guilty contempt. if determine contemnor More over, point alleged contempt the critical is that is not a sub stantive criminal offense and the use of an arrest attachment extraordinary procedure.

therefore

Case Details

Case Name: Hendershot v. Handlan

Court Name: West Virginia Supreme Court

Date Published: Oct 18, 1978

Citation: 248 S.E.2d 273

Docket Number: 14110

Court Abbreviation: W. Va.