Civil Contempt Proceedings Concerning Richard, In re

• Decision Date: 21 August 1985
• Docket Number: No. 14733,14733
• Parties: In re the CIVIL CONTEMPT PROCEEDINGS CONCERNING Michelle RICHARD. . Original Proceedings
• Court: South Dakota Supreme Court

Page 429

373 N.W.2d 429

In re the CIVIL CONTEMPT PROCEEDINGS CONCERNING Michelle RICHARD.

No. 14733 Supreme Court of South Dakota.

Original Proceedings.

Argued Nov. 27, 1984.

Decided Aug. 21, 1985.

Bruce Ellison, Rapid City, for Michelle Richard.

MORGAN, Justice (on reassignment).

Michelle Richard (Richard), who was incarcerated in the Pennington County Jail for civil contempt for refusal to testify before a grand jury, filed a petition in this court requesting issuance of a writ of mandamus or a writ of certiorari against Seventh Circuit Judge Jeff W. Davis (trial court), claiming that he had exceeded his authority by barring Bruce Ellison (Ellison) from any manner or form of contact with her. At the time, Ellison, who had apparently been previously appointed by the trial court to represent Richard and subsequently discharged by the trial court, was still representing her as volunteer counsel. This court determined that certiorari was the appropriate vehicle, issued an order to show cause why a writ should not be granted and directed both sides to submit briefs. We grant the writ of certiorari.

We summarize briefly the history of this case leading up to the trial court's actions. In April of 1982, Richard was charged with two counts of first-degree murder in connection with the shooting death of Conrad and Sylvia Wilson, father and daughter. Ellison was appointed counsel for Richard and represented her until the charges were dismissed in May of 1983. In September of 1984, Richard was subpoenaed to testify before a Pennington County Grand Jury investigating the homicides. She requested the appointment of counsel, specifically Ellison, and the trial court complied although there is no order of record. The immediate issue at that point appeared to be the type of immunity the state's attorney would grant Richard. ¹ Since the state's attorney would only agree to grant "use and derivative use" immunity, not "transactional" immunity, Ellison advised Richard not to testify. After one hearing before the trial court wherein she was instructed to testify, she nevertheless refused to do so:

MS. RICHARD: I still really don't understand the meaning of the immunity and I don't trust the State because I have been threatened so many times already with being charged with murder charges and accessory and being picked up, so I refuse to testify.

Richard was again taken before the trial court and the trial court adjudged her to be in contempt and ordered her incarceration until she decided to testify before the grand jury. At the time her incarceration began, Richard began a fast, refusing food but taking liquids, including juices.

At some point thereafter, which Richard alleged to be September 14, 1984, the trial court upon its own motion and over the objection of Richard, apparently removed the appointment of counsel for Ellison and substituted Rapid City attorney Allen Nelson (Nelson). It appears it was the trial court's intention to give Richard a second opinion regarding grants of immunity. We glean all this from the transcripts of a September 19, 1984, hearing because there is no written order of Nelson's appointment nor any written order of Ellison's removal. At this juncture, Richard also raised an additional reason regarding her refusal to testify. The then target of the grand jury investigation was Charles Swallow, whom Richard alleged was a first cousin which according to Indian tradition, made him a brother. She claimed that according to Indian values and traditions she could not testify against her brother, therefore, she again refused to testify. The trial court denied her petition for release upon the grounds that she had not shown that incarceration would not persuade her to testify.

About three weeks later, the incident occurred which ultimately triggered this proceeding. The jailer was informed by Ellison, after he had been visiting Richard, that she was going to refuse the liquids she had been receiving and go on a complete fast. The next day, October 12, 1984, after an ex parte meeting with the Pennington County Sheriff, the trial court convened a hearing which resulted in the trial court ordering Ellison barred from seeing Richard, speaking to her, or consulting with her. The grand jury subsequently indicted Swallow without Richard's testimony and Richard was released from incarceration. The matter, however, is not rendered moot by her release, since Richard's subpoena remains in effect as does the trial court's order barring her representation by or consultation with Ellison.

Prior to the return date, the trial court informed us by letter that it did not intend to attend the hearing on the show cause order unless this court deemed it necessary. It further stated:

My position is that the Writ of Mandamus and/or Certiorari demanded by Mr. Ellison is not proper in this instance. Recognizing that a Writ of Mandamus cannot be granted by default, I have chosen not to answer and thus confine the case to the papers of the applicant. Also recognizing that the scope of review on a Writ of Certiorari cannot be extended any further than to determine whether I have regularly pursued the authority of my court I chose (sic) to stand on that record.

I only wish to emphasize that the entire record in this matter presents the actions that have taken place throughout these proceedings and not the limited references made by Mr. Ellison on his behalf in his brief.

By this reply, the trial court first tells us that the writ is not proper in this instance. It cites no authority for this proposition. Second, it tells us that it stands on the entire record as support for its action. The trial court apparently expects this court to search the record and brief its case. This is totally unacceptable. As a tribunal, we may not lend our offices to a respondent in order to formulate its argument and then sit in judgment on the merits of its cause. ²

SDCL 21-31-1 provides: "A writ of certiorari may be granted by the Supreme and circuit Courts, when inferior courts ... have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy."

The right to counsel is a fundamental right. Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); S.D. Const. art. VI, Sec. 7. As this court stated in State ex rel. Burns v. Erickson, 80 S.D. 639, 645-46, 129 N.W.2d 712, 715 (1964):

In criminal actions South Dakota has long recognized an accused's constitutional and statutory guaranty of right to counsel, Article 6, Section 7, South Dakota Constitution, SDC 1960 Supp. 34.1901, SDC 1960 Supp. 34.3506, which in this state at least has been equally comprehensive to that accorded by the federal system. Consequently, the decision of the United States Supreme Court in 1963 extending this constitutional guaranty to state courts as one of the fundamental rights essential to due process under the Fourteenth Amendment, Gideon v. Wainright, [supra ], is currently without impact on our criminal procedure.

A grand jury witness' right to counsel is recognized in SDCL 23A-5-11. ³ Because the right to counsel is so fundamental under our criminal justice system, any trial court which interferes with that right under SDCL 23A-5-14 ⁴ should clearly set out the basis for such action, specifying whether the attorney violated SDCL 23A-5-11 or unduly delayed or impeded the activity of the grand jury. No findings and conclusions are found in this record establishing any misconduct on Ellison's part. Indeed, the trial court did not even enter a written order for the record.

In Save Centennial Valley Ass'n Inc. v. Schultz, 284 N.W.2d 452, 454 (S.D.1979), we defined our scope of review in certiorari: "When such courts, officers, boards or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law." (Citations omitted.) We refined this statement when we further quoted: "Certiorari will not as a rule lie to correct mere errors and irregularities in the exercise of jurisdiction by an inferior court or tribunal which had jurisdiction. It will not lie to review technical lack of compliance of law or be granted to correct insubstantial errors which are not shown to have resulted in prejudice or to have caused substantial injustice to the relator." Id., citing 14 Am.Jur.2d Certiorari Sec. 10, p. 786. The issue then becomes whether the trial court, which had statutory authority to remove a grand jury witness' attorney when removal and replacement is necessary to ensure that the activities of a grand jury are not unduly delayed or impeded, was acting within the scope of that authority in this instance or whether the trial court committed substantial error which resulted in prejudice or caused substantial injustice to Richard.

" 'Once counsel has been chosen, whether by the court or by the accused, the accused is entitled to the assistance of that counsel at trial.' " Harling v. United States, 387 A.2d 1101, 1105 (D.C.App.1978) (citation omitted). The Harling Court went on to recognize, however, that the right is not absolute, suggesting it is proper to remove counsel only in instances demanded by the interests of justice when the gross incompetence or physical incapacity of counsel, or contumacious conduct, cannot be cured by a citation for contempt. We recognize that Ellison was not representing Richard as defense counsel in a criminal action at the time of the trial court's action. We take note, however, that Richard had been originally charged with the murder. The record reflects her statement that she was continually being threatened by the state's attorney with further prosecution and he was unwilling to grant transactional immunity when she was subpoenaed to appear before the grand jury. By statute, she was...