Hendershot v. Hendershot

Neely, Chief Justice,

dissenting:

The choice between order and liberty is always difficult and never permanent, Eastern Associated Coal Corp. v. Doe, _ W.Va. _, 220 S.E.2d 672, 680 (1975). Today’s choice to require jury trials in contempt proceedings is prompted by the same optimism which through successive generations has brought the world from slavery to individual freedom; however, today’s decision is in no way dictated by the law. The choice is a legitimate one of policy, which of course is the fountainhead of all law, but I reluctantly conclude that the policy is unwise. As we enter the decade of the 1980’s and world-wide population continues to push against fixed resources, while the post World War II international order crumbles around us leaving the withered leaves of industrial enterprise lying on every side with the means of exchange frozen in the currents of trade, there will ensue an even more militant struggle to preserve income shares. Since a continued incompetence on the part of political institutions can reasonably be foreseen, *205 the demands in the next decade upon the one remaining force of order, namely the courts, shall become ever more urgent.

Mankind is an evolutionary aberration; he has come from savage beast hunting in the primeval forests to master of atomic energy in 2000 years, a long time in terms of human lives but the mere twinkling of an eye in terms of evolution. Each individual man contains the potential both for surpassing love and self-sacrifice as well as destruction and chaos. Notwithstanding that the forces of order are also the forces of tyranny, without order man becomes a beast. Whether man is viewed as a fallen angel as he was in the 14th Century when summary proceedings for contempt began, or whether he is perceived under the 20th Century view as a risen ape, the need for an ordered society remains.

The inevitable course of history will ultimately point out the folly of today’s ruling; consequently, the purpose of this dissent is to analyze the law which is available to reverse the majority’s policy when it finally becomes evident that jury trials for contempt will destroy the authority of courts. When the lower courts and those seeking enforcement of their orders conclude that the ancient procedure will again be acceptable to this Court, they may raise the issue by bringing an action in prohibition to prohibit the lower court from empaneling a jury, State ex rel. Hinkle v. Black, _ W.Va. _, _ S.E.2d _ (1979).

I respectfully dissent from the majority’s decision that a judge is not empowered to punish for contempt without the intervention of a jury. The majority states that the United States Supreme Court in Bloom v. Illinois, 891 U.S. 194 (1968) found a lack of substantial common law precedent for summary proceedings in contempt. While the majority included the part of footnote 2 in Bloom which recites the historical analysis relevant to their argument, they omitted the preceding part of that footnote in which Blackstone’s Commentaries on the Laws of England is cited for the proposition that:

*206 The process of attachment for these and the like contempts must necessarily be as ancient as the laws themselves; for laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. A power, therefore, in the supreme courts of justice, to supress such con-tempts by an immediate attachment of the offender results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. [Bloom v. Illinois, 391 U.S. 194 , 198 n.2 (1968).]

The Court later commented in that same footnote:

Of course, ‘Blackstone’s Commentaries are accepted as the most satisfactory exposition of the common law of England.... [Undoubtedly the framers of the Constitution were familiar with it. Schick v. United States, 195 U.S. 65, 69 (1904).” [Id. at 199 n.2.]

The history behind the doctrine that by “immemorial usage” all contempts could be tried summarily is indeed ambiguous; however, the adherence to that doctrine in American jurisprudence had been consistent up to the Bloom decision. This adherence is probably best exemplified by contrasting Justice Felix Frankfurter’s academic attack upon the historical basis of the “immemorial usage” doctrine when he was a Harvard Law School Professor in Frankfurter & Landis, “Power of Congress over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts - A Study in Separation of Powers,” 37 Harv. L. Rev. 1010 , 1042-1052 (1924), with the deciding vote he subsequently cast as a Supreme Court justice in Green v. United States, 356 U.S. 165 (1958) which upheld summary proceedings in contempt.

In his concurrence in Green Justice Frankfurter wrote: “[t]he fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes out a century and a half of the legislative and judicial history of federal law based on such assumptions.” Id. at 189 . Frankfurter’s final justification for upholding the *207 doctrine was that it was the legislature’s province to extend the participation of the jury and not the Court’s. He pointed to a long list of Supreme Court justices and to two score cases which established an “unbroken legislative and judicial history from the foundation of the Nation.” Id. at 193 . Our Court, by this reasoning certainly, has overstepped its bounds in determining what has already been decided by the legislative branch, by impliedly striking down our State statute, W.Va. Code, 61-5-26 [1923] empowering a judge summarily to punish contempt committed in the face of the Court.

Whatever doubts there may be about the historical origins of the power to punish constructive contempt, there is no comparable confusion regarding any contempt committed in the face of the Court (in facie curiae). As Justice Frankfurter observed, “[t]he most authoritative student of the history of contempt of court has shown that ‘from the reign of Edward I it was established that the Court had power to punish summarily contempt committed * * * in the actual view of the Court.’ Fox, History of Contempt of Court, 49-52.” Green, supra at 189 . Fox was the same legal historian who wrote of the historical error in the origins of indirect contempt in his articles in the 1920’s in which he concluded, “in the common law contempt not committed in the face of the Court was unknown.” Fox, “Eccentricities of the Law of Contempt of Court”, 36 L. Q. Rev. 394, 398 (1920). Regardless of any historical error resulting in the development of summary proceedings for the trial of contempt cases, even these justices who have urged that contemnors are constitutionally entitled to trial by jury have recognized the necessity for an exception for contempts in facie curiae. Sacher v. United States, 343 U.S. 1 (1952), (Black, J., dissenting), Green v. United States, 356 U.S. 165 (1958), (Black, J., dissenting). In this regard I should point out that the majority opinion has passed on jury trials for contempts in the face of the court only by way of dicta, since the case before us concerns an indirect contempt. Consequently, I urge the lower courts to require this Court to face the issue of whether the *208 vain act of a jury trial for contempts in the face of the court should be mandated by continued summary punishment of them until such time as this Court is confronted with a case of summary punishment through which it can examine this area of the law.

While the historical error in the origins of the power to punish summarily for constructive contempt was not sufficient to persuade Justice Frankfurter to restrict this power, our Court finds such error so egregious that the power to punish summarily for any contempt must be abolished. It is true that during the medieval period the courts were not empowered to punish summarily for contempt committed out of the presence of the court; however, “at the beginning of the seventeenth century, the judges were taking upon themselves to punish summarily offenses which in the Middle Ages would have been remedied by an indictment ... (and) [i]n the middle of the seventeenth century they were exercising this jurisdiction in the case of contempts committed out of court.” 3 W. Holdsworth, A History of English Law 394 (2nd imp. 1973).

There is no question that our parent state of Virginia has always considered the power to punish summarily to be an inherent part of the judicial system. In The Commonwealth v. Dandridge, 4 Va. (2 Va. Cas.) 408 (1824) the Virginia Supreme Court of Appeals addressed the extent of the contempt power and concluded that under the English authorities the courts were empowered to punish summarily for both direct and indirect contempt. In a separate opinion Judge White noted that the power was “an inseparable attendant upon every superior tribunal,” id. at 436 , but that the legislature would be the proper tribunal to limit the contempt power of the courts. The Virginia legislature subsequently defined contempt and limited the power of the courts to punish summarily. That statute was adopted almost in toto by our state. 1

*209 This statute was held constitutional in Commonwealth v. Deskins 31 Va. (4 Leigh) 685 (1834). The inherent power of the courts to punish summarily for contempt has been consistently upheld in Virginia. Holt v. Commonwealth, 205 Va. 332 , 136 S.E.2d 809 (1964), rev’d on other *210 grounds sub nom. Holt v. Virginia, 381 U.S. 131 (1965); Carter v. Commonwealth, 96 Va. 791 , 32 S.E. 780 (1899).

The majority overlooked the Virginia contempt statute which was substantially adopted by our state and instead focused on our unique Constitutional language requiring a jury trial in the “trials of crimes, and misdemeanors.” W. Va. Const. Art. III, §14. The majority maintains that the specificity of that language somehow changes the scope of that provision in opposition to similar language in other state Constitutions. Admittedly our language is different from any other state, but there is no suggestion that this language was intended to abolish the statutory right to punish summarily for contempt. A review of the debates during the first Constitutional convention reveals no discussion of this particular provision in the Bill of Rights. Instead it seems more likely that our unique language may be attributed to a desire to avoid confusing language. One commentator suggests that the delegates consciously chose straightforward language and labored to avoid such “hackneyed and confusing expressions as ‘all men are by nature equally free.’ ” 1 Debates and Proceedings of the First Constitutional Convention of West Virginia 39 (Introduction). In substance there is very little difference between the protection afforded by the Virginia Constitution and the protection afforded by the West Virginia Constitution. 2

*211 Our Court first focused on our unique provision insuring a jury trial when it was discovered that the provision could be used to make a jury trial mandatory in all cases. After twenty-five years of allowing the defendant to waive a right to a jury in a misdemeanor the court was presented with the argument that the provision for jury trials contains the word “shall” (see footnote 2) so that jury trials would be commanded. An evenly divided court allowed the defendant to continue waiving a jury in misdemeanors. State v. Cottrill, 31 W. Va. 162 , 6 S.E. 428 (1888). If that court had read the provision literally, a jury trial would have been required for even the most minor offense. A majority of that court did not read the language completely literally because two members realized that the statute allowing juries to be waived, W. Va. Code, Ch. 116-29 [1887], was passed contemporaneously with the Constitution and thus it would be wrong to assume that the framers of the West Virginia Constitution required juries in every single criminal prosecution.

Cottrill is heavily relied upon by our majority to show that all the judges in that case were in fundamental agreement that a jury trial is required in all cases. The majority includes portions of those four justices’ opinions in a footnote to buttress their argument that a jury trial must be granted in criminal contempt proceedings. It would seem that a decision four years earlier by the very same members cited in the majority’s footnote on *212 the issue of the right to a jury trial in contempt proceedings should also be of value. That court unanimously upheld the right of the Supreme Court to punish both direct and indirect contempt summarily and the right of lower courts to punish contempt summarily as limited by statutory provisions. State v. Frew & Hart, 24 W. Va. 416 (1884). 3

In addition to relying on Cottrill, supra, as precedent in this jurisdiction for the principle that a defendant in criminal contempt proceedings has the right to a trial by jury, the majority also seems to rely upon the principle expressed in State ex rel. Arnold v. Conley, 151 W.Va. 584 , 153 S.E.2d 681 (1966), that criminal contempt proceedings are to be treated as criminal in nature from a procedural standpoint. The majority neglected to include the principle immediately following in that opinion, namely, “[w]hile this court has held in many cases that a trial for criminal contempt ‘is a proceeding in the *213 nature of a criminal trial,’ or ‘a quasi criminal proceeding,’ it has never held that a contempt proceeding is actually a criminal trial.” 151 W. Va. at 587 , 153 S.E.2d at 683 (1966).

The majority’s legal support in the case before us for abolishing the power to punish summarily for contempt consisted of: the expansion of a suggestion in Bloom that the doctrine allowing summary proceedings for constructive contempt was predicated on an historical error in the common law — an error which did not apply to direct contempt and an error which moved the U.S. Supreme Court to restrict summary confinement to a six month limit while our statute, W.Va. Code, 61-5-26 [1923] has a limit of ten days; the argument that the West Virginia Constitution’s clause is unique in its application despite the fact that Virginia’s right to a jury trial contains substantially the same ideas and despite the fact that our statute limiting the power to punish for contempt is virtually the same as our parent state of Virginia; and, the argument that West Virginia jurisprudence has always accorded a jury trial despite the fact that the right to a jury trial has been treated as inapplicable to contempt proceedings consistently in Virginia and West Virginia jurisprudence until today’s decision rewrote the law.

I now must turn to the only other area of legal justification offered by the majority, namely our sister states. The majority suggests that seven states have similarly required jury trials in contempt proceedings, although they do admit that only two have required jury trials in all criminal contempt proceedings. But even that modest assertion is incorrect. Minnesota has not applied the right to a jury to any criminal contempt, and in the very case cited by the majority, the Minnesota Supreme Court specifically limited their decision to cases of indirect contempt and failed to find that the defendant was entitled to a jury as a matter of constitutional right even in indirect contempt cases. Peterson v. Peterson, 278 Minn. 275 , 153 N.W.2d 825 (1967). The single state *214 that has formed a constitutional right to a jury trial in all criminal contempt proceedings is Alaska. In reaching this singular conclusion, however, the Alaska Supreme Court was much more honest in protraying the nature of their novel precedent than our own Court. Rejecting any attempt to find legal support for their decision, the Alaska Supreme Court frankly stated, “[i]n reaching this construction, we expressly [hold] that contemporary social values, rather than historical categorizations, should determine whether a prosecution is criminal for purposes of the right to jury trial.” State v. Browder, 486 P.2d 925, 936 (Alaska 1971).

Having finally unmasked the majority opinion as a pure policy decision based on “contemporary social values” rather than historical precedent we must now consider whether this is indeed a valid policy. Unfortunately the majority was so concerned with creating the legal justification for the reversal of law that has been accepted since at least the 17th Century that they neglected to include the policy reasons that directed the result. The importance of the right to a fair trial cannot be overemphasized, but the judiciary must be possessed of sufficient power to insure the effective administration of the judicial system in the protection of individual rights. On an abstract level, it would seem easy to provide a jury trial in direct contempt cases. Upon closer examination, however, the actual trial process would require cross-examination of the judge-witness, testimony by other lawyers against a fellow lawyer, and the need to recreate the contemptuous act. To require a judge to endure a proceeding of this type would restrict his power and his inclination to use his contempt power. Without that power, the judge would be at the mercy of the disorderly who want to disrupt the judicial process. It is a well known tactic by litigators who practice before administrative tribunals, when saddled with a sure loser, as a last resort to bait the tribunal to see if something would be said which would cause a reversal. The reason that the power to punish for direct contempt has been indispensable for centuries is not that judges are *215 inordinately sensitive or overly conscious of personal security, but that it “is a safeguard not for judges as persons but for the function which they exercise.” Pennekamp v. Florida, 328 U.S. 331, 366 (1946).

Stripped of the power to punish summarily for contempt, a judge becomes dependent upon the popular will of the jury in preserving order in the courtroom and enforcing orders outside the courtroom. As a general rule, reliance upon the jury would not upset a legitimate finding of contempt by the judge; however, it does not take a great deal of imagination to think of instances when a judge’s enforcement of the law would place him in a distinct minority of the populous. Looking back to the days of court ordered integration in the Southern states, it is doubtful that a Southern jury would have upheld a charge of criminal contempt against a fellow Southerner who defied a court order. Looking to the future it is fair to say that the court may once again have to stand alone to vindicate principle, and that they should be left naked, stripped of the power to punish summarily for contempt is poor preparation for the next assault upon the judicial process which we will inevitably face. Again, the contempt power was not conceived in order to vindicate the dignity of a particular judge, but instead to prevent interference with the administration of justice.

This Court went very far in Eastern Associated Coal Co. v. Doe, supra in assuring a prompt and orderly procedure for dissolving temporary injunctions and for providing appeals from unlawful injunctions. Furthermore, the Supreme Court of Appeals is ever vigilant for abuses of the contempt power, indeed, there are judges who make asses of themselves in this regard. However, we are always here and have been most responsive to petitions for prohibition in contempt cases in the face of the court. In that lone instance we are the jury. We can both insure against abuses of judicial power and simultaneously provide the forces of order with the necessary power to accomplish necessary social purposes.

A comparison of the relevant statutory sections reveals that our statute is nearly identical to the statute passed by the Virginia Assembly in 1834. The only significant difference is that Virginia’s *209 provision covering contemptuous language, Va. Code, §18.2-456(3) [1975], is omitted from our statute. The Virginia Code provision is as follows:

The courts and judges may issue attachments for contempt, and punish them summarily, only in the cases following:

(1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;

(2) Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had in such court;

(3) Vile, contemptuous or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;

(4) Misbehavior of an officer of the court in his official character;

(5) Disobedience or resistance of an officer of the court, juror, witness or other person to any lawful process, judgment, decree or order of the court. Va. Code, §18.2-456 [1975].

A judge of a district court shall have the same power and jurisdiction as a judge of a circuit court to punish summarily for contempt, but in no case shall the fine exceed fifty dollars, or the imprisonment exceed ten days, for the same contempt. Va. Code, §18.2-458 [1975].

In West Virginia the Code language is as follows:

The courts and the judges thereof may issue attachment for contempt and punish them summarily only in the following cases: (a) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; (b) violence or threats of violence to a judge or officer of the court, or to a juror, witness, or party going to, attending or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court; (c) misbehavior of an officer of the court, in his official character; (d) disobedience to or resistance of any officer of the court, juror, witness, or other person, to any lawful process, judgment, decree or order of the said court. No court shall, without a jury, for any such contempt as is mentioned in subdivision (a) of this section, impose a fine exceeding fifty dollars, or imprison more than ten days. But in any such case the court may impanel a jury (without an *210 indictment or any formal pleading) to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict. No court shall impose a fine for contempt, unless the defendant be present in court, or shall have been served with a rule of the court to show cause on some certain day, and shall have failed to appear and show cause. W. Va. Code, §61-5-26 [1923].

The applicable constitutional provisions are:

West Virginia

The trial of crimes and misdemeanors, unless herein otherwise provided, shall be by jury, and shall be held publicly and without unreasonable delay, in the county where the alleged offence was committed, unless upon petition of the accused and for good cause shown, or in consequence of the existence of war or insurrection in such county, it is removed to, or instituted *211 in, some other county. In all such trials the accused shall be informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel for his defense, and compulsory process for obtaining witnesses in his favor. W. Va. Const., Art. Ill, §14.

Virginia

That in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers. Va. Const., Art. I, §8.

In State v. Frew & Hart, three of the four members wrote separately and their statements provide an interesting contrast to the statements gleaned from Cottrill by the majority.

At common-law, as clearly appears in Dandridge’s Case, the power to punish for such constructive contempts was as much an inherent because a necessary power, as to punish for direct contempts; and as we have seen, this position is abundantly sustained by authority. (Johnson, J., 24 W.Va. at 455 ).

... it may be stated as a proposition of law unquestioned and unquestionable, that by the common-law of England as well as by the uniform discussions of this country, courts have the inherent power to punish for contempts in a summary manner, and that his power is an essential element and part of the court itself which cannot be taken away without impairing the usefulness of the court, because it is a power necessary to the exercise of all others. This much has never been disputed....

.. .Apart from any statutory enactment, I regard it as the settled law of Virginia and this state, fully established by the able opinions and the general court of Virginia in Dandridge’s Case, 2 Va. Cas. 408 , that the courts oí these states possess the power to punish, in a summary manner, both direct and constructive contempts. The right to do so in cases of the first class no one denies. (Snyder, J., 24 W. Va. at 473 ).

[T]he members of this court are well agreed as to the law applicable in this case. (Green, J., 24 at 480).