Epps v. Com., Record No. 0591-04-2.

• Citation: 46 Va. App. 161,616 S.E.2d 67
• Decision Date: 26 July 2005
• Docket Number: Record No. 2303-04-2.,Record No. 0591-04-2.
• Parties: George M. EPPS, Sheriff of City of Petersburg v. COMMONWEALTH of Virginia (Two Cases).
• Court: Supreme Court of Virginia

616 S.E.2d 67

46 Va. App. 161

George M. EPPS, Sheriff of City of Petersburg v. COMMONWEALTH of Virginia (Two Cases).

Record No. 0591-04-2.

Record No. 2303-04-2.

In the Court of Appeals of Virginia, Richmond.

July 26, 2005.

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John A. Gibney, Jr. (Thompson & McMullan, P.C., on briefs), Richmond, for appellant.

John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on briefs), for appellee.

Present: ELDER, FRANK and HUMPHREYS, JJ.

ROBERT P. FRANK, Judge.

In two separate appeals, George M. Epps, appellant, appeals the judgment of the trial court finding him guilty of three counts of criminal contempt and one count of civil contempt. In this consolidated appeal, appellant contends the trial court erred in: 1) finding Judge Baskervill had authority to enter the April 16, 2002 and July 1, 2003 orders; 2) failing to advise appellant whether the charges against him were civil or criminal; 3) finding Judge Baskervill competent to testify as a sitting judge; 4) finding appellant violated Code § 18.2-456(4) for leaving the courthouse unsecured; 5) finding that superseding legislation did not relieve appellant from the duty of providing a deputy at the courthouse entrance; 6) refusing to admit evidence of "impossibility" to comply with the court orders; 7) finding appellant violated the April 16, 2002 order; 8) finding appellant violated the July 1, 2003 order¹; and 9) finding Judge Baskervill had a right to enter appellant's office and demand return of the July 1, 2003 letter and order. For the following reasons, we reverse and remand.

BACKGROUND

This case concerns security of the "old courthouse" building in Petersburg. The courthouse houses a courtroom on the second floor. The first floor includes the office of the Circuit Court Administrator, Gladys Kennedy, Circuit Judge D'Alton's office and the City's public law library. The court receives mail and presentence reports at the administrator's office. Lawyers also schedule all hearings at Ms. Kennedy's office. At the entrance to the old courthouse is a desk occupied by the deputy sheriff assigned to provide security for the courthouse building.

In April 2002, Circuit Court Judges D'Alton and Baskervill met with appellant, the Sheriff of the City of Petersburg, to discuss mutual problems. The judges memorialized the agreement reached at that meeting in a letter addressed to the sheriff, which the court entered as a court order on April 16, 2002, detailing certain duties appellant would perform in service to the court. Pertinent to the present case was a provision that "[t]he main court building, which has a public law library and conducts the court's business, shall have a deputy at the front entrance at all times during business hours of 8:00 a.m. and 4:30 p.m. Monday through Friday." Appellant complied with that order for over a year.

On June 6, 2003, appellant wrote a letter to the circuit court and district court clerks in Petersburg discussing difficulties resulting from a reduction of funds from the Compensation Board. The letter stated, among other things, that "[w]ithout these funds from the fee bills I can no longer have deputies remain with the court building once court has concluded." The appellant did not send the circuit court judges a copy of this letter.

On June 9, 2003, appellant wrote a letter to Chief Judge D'Alton discussing his office's funding and staffing problems. In that letter, he did not tell the court, as he had the clerks, that he would no longer be able to maintain a deputy at the courthouse door in compliance with the April 16, 2002 order. Instead, he wrote that "[a]s of July 1, 2003, the reduction in the Sheriff's Office budget for FY04 will require some personnel changes which are directly related to maintaining the present state of readiness for our courts, the jails, document services and our transportation unit."

Effective July 1, 2003, appellant removed the deputy who guarded the old courthouse entrance when court was not in session. At trial, appellant explained he decided to remove the deputy from the front desk and return the deputy to the jail "to help to man the jails and fulfill the responsibilities of the things that were getting behind in the jail system." Appellant was aware of the April 16, 2002 order that required the presence of a deputy at the front desk. Essentially, appellant testified he could not comply with the April 16, 2002 order and still properly discharge his responsibilities in the jail. Appellant continued to properly staff the security needs of the court when it was in session.

On July 1, 2003, Judge Baskervill was informed that no deputy was posted at the old courthouse entrance, which left Ms. Kennedy alone in that building. Judge Baskervill directed the preparation and posting of a sign that indicated the courthouse was temporarily closed due to lack of security. The sign further gave a phone number to call in order to gain entrance.

Appellant removed that sign from the courthouse door on July 1, 2003, saying he did so because he determined the sign, itself, was a security risk.

Later that day, Judge Baskervill directed the preparation and posting of another virtually identical sign on the courthouse door. Also on July 1, 2003, she entered an order to be posted with the sign that provided:

It appearing to the Court that the Sheriff of the City of Petersburg has ceased to provide security for the Courthouse when Court is not in session, it is ORDERED that in such times when security is not provided, the Courthouse shall be locked. Entrance shall be had only by calling 733-2423. The Clerk of this Court is directed to post a copy of this Order on the front door of each Courthouse.

Appellant then removed from the courthouse door both the second sign and the court order that accompanied it.

The next morning, July 2, 2003, Judge Baskervill went to the Sheriff's Office to retrieve the second sign and order. Appellant responded that the judge had no right to 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 and pulled out the sign and order, still taped together. Judge Baskervill again asked for those items, and appellant responded, "no, I want to read them." After doing so, appellant told the judge that the order was inaccurate, and she had no right to post it. He eventually returned the sign, but not the order. When she again asked for the return of the order, he refused, and the judge left his office. One of appellant's deputies returned the order to the court the following day.

Judge D'Alton then issued a rule to show cause against appellant requiring appellant to show cause why he should not be held in contempt of court, pursuant to Code § 18.2-456 upon violation of the orders of April 16, 2002 and July 1, 2003. The rule was issued upon the sworn statement of Judge Baskervill, which was attached to the rule.

Prior to the beginning of the contempt trial, appellant inquired whether the proceeding was criminal or civil in nature. The court responded the proceeding was both civil and criminal. At trial, the Commonwealth offered the testimony of Judge Baskervill, which the trial court admitted over appellant's objection.

At trial, appellant asked that he be allowed to put on evidence outlining staffing problems and his efforts to obtain additional funding from the City and the Compensation Board to obtain additional staffing to comply with the order. The trial court denied appellant's request, ruling that appellant's inability to comply with the court order is not a defense to contempt. The trial court did allow a proffer. Appellant testified in his own behalf.

The trial court found appellant guilty of one count of civil contempt for violating the April 16, 2002 order by not having security at the doors of the courthouse on July 1 and July 2, 2003. Further, the trial court found appellant guilty of three counts of criminal contempt violating various subsections of Code § 18.2-456. The first act was the removal of the sign and order on July 2, 2003 constituting misbehavior under Code § 18.2-456(1). The court, on this charge, found appellant, by removing the sign and order, denied the public access to the courthouse, thus defeating the purpose of the sign and order. The trial court thus concluded appellant "interrupt[ed] the administration of justice."

The trial court also found appellant guilty of criminal contempt on July 1, 2003 for, without justification, leaving the courthouse without security and without notice to the court. The trial court found this act to be "an act of misbehavior of an official nature or character of an officer of the court" in violation of Code § 18.2-456(4).

Finally, the trial court found appellant guilty of criminal contempt for the July 2, 2003 removal of the court order from the courthouse door and subsequent refusal to return the order to the court upon reasonable request in violation of Code § 18.2-456(5).

ANALYSIS

I. VALIDITY OF ORDERS

Appellant contends Judge Baskervill had no authority to enter the April 16, 2002 order requiring posting of a deputy at the front desk and the July 1, 2003 order directing that the courthouse be closed when security was not provided. He maintains that since the April 16, 2002 order exceeds the authority of Code § 17.1-513, the trial court had no subject matter jurisdiction and the order is void. Therefore, contends appellant he had no duty to obey the order. We disagree.

"It is, of course, well settled that disobedience of, or resistance to a void order, judgment, or decree is not contempt." Robertson v. Commonwealth, 181 Va. 520, 536, 25 S.E.2d 352, 358 (1943). This is so because "a void order, judgment, or decree is a nullity and may be attacked collaterally." Id.

Appellant cites Code §...