# Smoot v. Dingess

> West Virginia Supreme Court · July 26, 1977 · 160 W. Va. 558

URL: https://www.frixlaw.com/law-library/cases/9602942

## Case

- **Full name:** Clarence Smoot v. Grace Dingess Sheriff, Logan County
- **Court:** West Virginia Supreme Court
- **Decided:** July 26, 1977
- **Citations:** 160 W. Va. 558; 236 S.E.2d 468
- **Precedential status:** Published
- **Opinion:** Concurrence by Miller
- **Judges:** Neely, Miller
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9602942

## Opinion text

Miller, Justice,
concurring:
While I concur in the result, I diverge from the majority on the due process rights that should have been accorded the petitioner.
In North v. West Virginia Board of Regents, _ W. Va. _, 233 S.E.2d 411 (1977), this Court held that where substantial property or liberty rights are at stake, the following due process standards would apply:
“[A] formal written notice of charges; sufficient opportunity to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges, to confront his accusers, and to present evidence on his own behalf; an unbi *565 ased hearing tribunal; and an adequate record of the proceedings.” [ 233 S.E.2d at 417 ]
A six-month j ail sentence is a substantial restraint on a person’s liberty.
I disagree with the factual conclusion that petitioner made no reasonable effort to secure counsel. His testimony was uncontradicted that after learning that his counsel could not attend the initial hearing, he contacted every law firm in Logan, but was refused their counsel for a variety of reasons. He appears to have fallen into that wonderous category where his income was just enough to make him ineligible for appointed or legal aid counsel, but too little to allow him to secure retained counsel. The matter was a disagreeable domestic case that most attorneys undoubtedly would prefer to avoid, but a court cannot, for this reason, act on contempt without having made counsel available.
I take further issue with the statement that a transcript is not necessary for contempt committed in the presence of the court. This remark has no bearing on the case at hand, since there was no act of contempt directed at the court and done in its presence. The statement is totally ambiguous since it does not delineate between the act of contempt and the summary proceeding that may follow to punish such contempt. State ex rel. Arnold v. Conley, 151 W. Va. 584 , 153 S.E.2d 681 (1966), and State ex rel. Browning v. Jarrell, _ W. Va. _, 192 S.E.2d 493 (1972), touch on some aspects of this type of proceeding.
Undoubtedly, the due process requirements will differ where the act of contempt occurs in the courtroom, since there is an immediate need to preserve orderly judicial procedure. Even in this setting a record can and should be made. The United States Supreme Court has considered various aspects of this particular type of contempt. Codispoti v. Pennsylvania, 418 U.S. 506 , 41 L. Ed. 2d 912 , 94 S. Ct. 2687 (1974); Taylor v. Hayes, 418 U.S. 488 , 41 L. Ed. 2d 897 , 94 S. Ct. 2697 (1974); Mayberry v. Pennsylvania, 400 U.S. 455 , 27 L. Ed. 2d 532 , 91 S. Ct. 499 (1971). *566 Again, I would emphasize that the present case does not pertain to this type of direct contempt against the court.
Finally, I am delighted that the court is moderating the undiscriminating doctrine espoused in Eastern Associated Coal Corp. v. Doe, _ W. Va. _, 220 S.E.2d 672 (1975), in regard to the right to attack jurisdiction. The uniform and long established rule in contempt has been that where the court lacks jurisdiction over the subject matter or the parties, or is without power or authority to render the particular order, its contempt order may be attacked on this basis either directly or collaterally. Where the underlying order on which the contempt is based is merely erroneous, irregular or improvidently awarded, it generally can be attacked only by an appeal. Annot., 12 A.L.R.2d 1059 , 1067 (1950); 17 Am. Jur. 2d Contempt § 42; 17 C.J.S. Contempt §64.
In the present case the trial court judge, because of his constitutional age infirmity, had no power to enter the underlying order, and habeas corpus would lie to attack its validity. State ex rel. Browning v. Jarrell, supra; and Ex Parte Mylius, 61 W. Va. 405 , 56 S.E. 602 (1907). We have also recognized that a prohibition will lie where the court acts in contempt without or beyond its authority. White v. County Court of Roane County, 99 W. Va. 504 , 129 S.E. 401 (1925); Powhatan Coal & Coke Co. v. Ritz, 60 W. Va. 395 , 56 S.E. 257 (1906).
I am authorized to state that Justice McGraw joins with me in this concurring opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9602942. Public record. Not legal advice.