Hendershot v. Hendershot

• Decision Date: 22 January 1980
• Docket Number: No. 14457,14457
• Citation: 263 S.E.2d 90,164 W.Va. 190
• Court: West Virginia Supreme Court
• Parties: James Blaine HENDERSHOT, Jr. v. Jennie Lou HENDERSHOT.

Page 90

263 S.E.2d 90

164 W.Va. 190

James Blaine HENDERSHOT, Jr. v. Jennie Lou HENDERSHOT.

No. 14457.

Supreme Court of Appeals of West Virginia.

Jan. 22, 1980.

Syllabus by the Court

1. A contempt will be deemed criminal when a jail sentence is imposed and the contemnor is given no opportunity in the sentencing order for immediate release by purging himself of contempt by doing an act which is within his power to accomplish.

2. Article III, Section 14 of the West Virginia Constitution prohibits imprisonment without a jury trial in a criminal contempt proceeding.

Hague, Rudolph, Hague & Lantz, George E. Lantz and Eugene T. Hague, Parkersburg, for James Blaine Hendershot, Sr.

Richardson & Richardson, William B. Richardson and William B. Richardson, Jr., Parkersburg, for Jennie Lou Hendershot.

MILLER, Justice:

In this appeal from a criminal contempt proceeding, the appellant, James Hendershot, Sr., ¹ urges that his constitutional right to a trial by jury was violated.

Appellant was sentenced to serve 90 days in jail and fined $500 on a charge that he violated a court order in a divorce case which required appellant's son to relinquish custody of his child appellant's grandson to the son's wife. The petition for contempt alleged that appellant had conspired with his son to remove the child from the State. We considered some of the procedural aspects of this case in Hendershot v. Handlan, W.Va., 248 S.E.2d 273 (1978).

At the hearing on the contempt charge, the appellant requested a trial by jury, but this was refused by the trial court.

Appellant argues that Article III, Section 14 of the West Virginia Constitution ² affords an absolute right to a jury trial for all crimes and misdemeanors, and that criminal contempt is a crime. He acknowledges that Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), sets a federal constitutional right to a jury trial in cases where the potential punishment involves imprisonment for more than six months.

In Bloom, the Supreme Court abandoned its traditional position, exemplified in Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958), that a criminal contempt trial could be conducted without a jury regardless of the severity of the penalty imposed. Bloom, noting the lack of substantial common law precedent for summary proceedings in criminal contempt, ³ held that criminal contempt was in essence a crime, and expressed a fundamental concern for the potential for abuse in criminal contempt proceedings:

"Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. . . .

"The court has long recognized the potential for abuse in exercising the summary power to imprison for contempt it is an 'arbitrary' power which is 'liable to abuse.' Ex parte Terry, 128 U.S. 289, 313, 9 S.Ct. 77, 32 L.Ed. 405, 412 (1888). '(I)ts exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions.' Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390, 69 L.Ed. 767, 775 (1925)." (391 U.S. at 201-02, 88 S.Ct. 1481-82, 20 L.Ed.2d 528-29.)

The Supreme Court arrived at its holding in Bloom by an empirical analysis of the right to a jury trial as it existed in this Country at the time the United States Constitution was framed. In so doing, the Court relied on the conclusions of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), that historically the right to a jury trial in a criminal case did not include "petty" offenses. This term was defined in Cheff to be an offense for which the punishment does not exceed a six-month confinement. Bloom followed Duncan's constitutional analysis that the Due Process Clause of the Fourteenth Amendment to the United States Constitution mandated this result on the states, since the right to a trial by jury is a fundamental right embodied in the concept of due process.

Appellant argues that while Bloom sets the federal constitutional standard, Article III, Section 14 of the West Virginia Constitution clearly calls for a more protective standard. In this respect, Oregon v. Haas, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), permits a state under its constitution to set a higher standard of constitutional protection than is available under the federal constitution. We have recognized this principle in several cases. State ex rel. McLendon v. Morton, W.Va., 249 S.E.2d 919 (1978); Waite v. Civil Service Commission, W.Va., 241 S.E.2d 164 (1977); Adkins v. Leverette, W.Va., 239 S.E.2d 496 (1977).

This Court has traditionally considered both civil and criminal contempt proceedings to be criminal in nature from a procedural standpoint, as expressed in State ex rel. Arnold v. Conley, 151 W.Va. 584, 587, 153 S.E.2d 681, 683 (1966):

" 'Whether the proceedings are civil or criminal, a contempt of court is in the nature of a criminal offense, and the proceeding for its punishment is criminal in its character, and the rules of evidence governing criminal trials are applicable. . . .' 4 M.J., Contempt, Section 3, page 242. To the same effect, see 17 Am.Jur.2d, Contempt, Section 78, page 72; State ex rel. Alderson v. Cunningham, 33 W.Va. 607, pt. 1, syl., 11 S.E. 76; State v. Davis, 50 W.Va. 100, 40 S.E. 331; State ex rel. Continental Coal Co. v. Bittner, 102 W.Va. 677, pt. 2 syl., 136 S.E. 202, 49 A.L.R. 968; State ex rel. Taylor v. Devore, 134 W.Va. 151, pt. 2 syl., 58 S.E.2d 641; State ex rel. Hoosier Engineering Co. v. Thornton, 137 W.Va. 230 pt. 1 syl., 72 S.E.2d 203; State ex rel. Taft v. Cox (State ex rel. Cox v. Taft), 143 W.Va. 106, pt. 2 syl., 100 S.E.2d 161."

The foregoing quote notes that our earlier cases were to the same effect, as illustrated by State ex rel. Hoosier Engineering Co. v. Thornton, 137 W.Va. 230, 239, 72 S.E.2d 203, 208 (1952):

"In State (ex rel. Ben Franklin Coal Co.) v. Lewis, 113 W.Va. 529, 168 S.E. 812, this Court stated: '. . . And, since a prosecution for contempt is in the nature of a prosecution for a crime, such affidavit or information should state the acts constituting the offense with as great certainty as is required in criminal proceedings. . . .' " (Citations omitted)

While we have in the past acknowledged that " '(t)he line of demarcation between acts constituting criminal and those constituting civil contempt is very indistinct,' " State ex rel. Arnold v. Conley, 151 W.Va. at 586, 153 S.E.2d at 683, Quoting 17 C.J.S. Contempt § 5(2), it is clear that our more recent cases focus on the nature of the punishment inflicted. We stated in Syllabus Point 9 and in part of Syllabus Point 10 of Eastern Associated Coal Corp. v. Doe, W.Va., 220 S.E.2d 672 (1975):

"In a contempt proceeding, whenever the defendant may effect his release from jail by performing such act or acts as the court directs, the contempt is civil in nature and the rules regarding criminal contempt do not apply regardless of the ultimate length of the time served in jail."

"Whenever a defendant is sentenced to jail for a definite period of time for having failed to obey a court order, the contempt is criminal and not civil; . . ."

We also held in Syllabus Point 1 of Floyd v. Watson, W.Va., 254 S.E.2d 687 (1979), that:

"Imposition of a fixed term of imprisonment for civil contempt is improper where the contemnor is given no opportunity to purge himself of the contempt and thus free himself from imprisonment."

In Floyd we elaborated on the ultimate distinction between a civil and criminal contempt:

" '(T)he most important result of the distinction between civil and criminal contempt is the rule that if a contempt procedure is criminal in nature, the sentence must be a determinate one, while if it is civil in nature, the sentence must be coercive.' See, Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 243 (1971). 'For this reason the authorities are in almost unanimous agreement that the imposition of a fixed term of imprisonment for civil contempt is improper where the contemnor is given no opportunity to purge himself of the contempt.' McDaniel v. McDaniel, 256 Md. 684 at 689, 262 A.2d 52 at 55. . . ." (254 S.E.2d at 692)

From the foregoing cases, it appears that a contempt will be deemed criminal when a jail sentence is imposed and the contemnor is given no opportunity in the sentencing order for immediate release by purging himself of contempt by doing an act which is within his power to accomplish. ⁴

The narrow question here, therefore, is whether Article III, Section 14 of the West Virginia Constitution affords a right to a jury trial in a criminal contempt proceeding where the defendant faces a potential jail sentence with no provision for immediate release by purging of the contempt. We begin by analyzing the scope of the right to jury trial in criminal cases at the time of the adoption of our State Constitution, in order to determine if there are historical characteristics of our State provisions for jury trial in criminal cases which make the petty offense limitation of Bloom inapplicable. The 1863 West Virginia Constitution, Article II, Section 8, provided:

"The trial of crimes and misdemeanors, unless herein otherwise provided, shall be by jury . . .."

This same provision was carried into Article III, Section 14 of the present West Virginia Constitution, adopted in 1872, except that the provision specified "a jury of twelve men."

The 1863 Constitution contained a further provision in its Article VII, Section 10:

"(T)he defendant, in such cases of misdemeanor or breach of the peace as may be made by law cognizable by a single Justice, when the penalty is imprisonment or a fine exceeding five dollars, shall be entitled to a trial by six jurors, if demanded, under such regulations as may be prescribed by law."

This provision was not carried into our 1872 Constitution...