Smoot v. Dingess

• Decision Date: 12 July 1977
• Docket Number: No. 13717,13717
• Citation: 160 W.Va. 558,236 S.E.2d 468
• Parties: Clarence SMOOT v. Grace DINGESS, Sheriff, Logan County.
• Court: West Virginia Supreme Court

Page 468

236 S.E.2d 468

160 W.Va. 558

Clarence SMOOT v. Grace DINGESS, Sheriff, Logan County.

No. 13717.

Supreme Court of Appeals of West Virginia.

July 12, 1977.

Concurring Opinion July 26, 1977.

Syllabus by the Court

1. In a proceeding for civil contempt a person cannot be incarcerated upon unsworn testimony, and in any civil contempt hearing before a judge for the purpose of committing an individual to jail, the decision of the judge incarcerating him must be founded upon competent evidence.

2. Whenever a person is incarcerated for civil contempt, he must have an opportunity to appeal the proceedings by which he was so incarcerated, and as an effective appeal can be prosecuted only upon an adequate transcript, a court reporter must be available and a stenographic record of civil contempt proceedings must be made.

3. Where an indigent is incarcerated for civil contempt and is unable to afford the cost of a transcript for appeal, it is the obligation of the State to provide him with one.

4. In a habeas corpus proceeding a formal return is required of or on behalf of the custodian of the body of the petitioner; however, when it appears to the judge that a reasonable opportunity to be heard has not been afforded to the real party in interest in a habeas corpus proceeding testing incarceration for civil contempt, the judge may order that notice be given formally to the real party in interest, and a continuance granted for a reasonable time for the purpose of permitting a return to be drafted and filed; provided, that the requirement of a return may be waived on the record or waived by conduct of all parties by trying the issues as if a proper return had been filed.

5. Orders of a special judge who has not met the constitutional prerequisites for holding that office are void.

James M. Cagle, Charleston, for plaintiff in error.

Charles T. Bailey, Logan, for defendant in error.

NEELY, Justice:

This is an appeal from the denial of a writ of habeas corpus in the Circuit Court of Logan County by J. Ned Grubb sitting by designation as special judge. Clarence Smoot, the appellant here and petitioner below challenged his incarceration in the Logan County Jail for civil contempt because of his failure to pay alimony to his wife.

Petitioner was convicted of contempt by Special Judge John Esposito, who presided over this domestic relations case by stipulation entered into by counsel for the parties in 1972. It appears that the petitioner had been delinquent for some time in payment of alimony and on May 13, 1975, Special Judge John Esposito entered an order to show cause why petitioner should not be held in contempt. Thereafter on May 30, 1975, the petitioner appeared before Judge Esposito who summarily incarcerated him in the Logan County Jail. However, upon reflection, Judge Esposito released the petitioner the following day and caused the jailer to advise petitioner to appear in court again on June 5, 1975. On that date further proceedings were conducted and the matter continued to June 12, 1975, at which time the petitioner was again adjudged in contempt of court and committed to the Logan County Jail for a period of six months or until such time as he paid his arrearages in alimony.

On this habeas corpus appeal we are concerned with four questions: First, was the defendant adequately advised of his right to counsel and did he have an opportunity to obtain counsel before the hearings; second, did the court behave improperly because none of the witnesses at the contempt hearing was placed under oath, and no transcript of the hearing was made which would permit appellate review; third, was the denial of the writ of habeas corpus improper in light of the verified petition by the petitioner and the lack of a return by the sheriff; and, fourth, were all the proceedings void because the special judge was under thirty years of age at the time the order was entered.

I

We find that the petitioner was not indigent, knew of his right to be represented by counsel, and had a fair opportunity to procure counsel for the hearings. Regardless of whether a contempt proceeding is civil or criminal, a defendant has the right to be represented by counsel, and if he is indigent counsel must be appointed to represent him. Eastern Associated Coal Corp. v. Doe, W.Va., 220 S.E.2d 672 (1975). However, in this case, petitioner did not make reasonable efforts to secure counsel and did not represent to the court either at the original contempt hearing or at the habeas corpus hearing that he had been indigent at any time during these proceedings and he demonstrated that at all times he had been fully aware of his right to counsel.

II

The question of the absence of both sworn witnesses and a transcript provides adequate reason for reversing the lower court and discharging the petitioner. Rudimentary notions of due process indicate that a person cannot be incarcerated upon unsworn testimony, and that in any hearing before a judge for the purpose of committing an individual to jail, the decision of the judge in that regard must be founded upon competent evidence. While we recognize that as a practical matter all of the parties to the original contempt proceedings knew the circumstances concerning the payment of alimony, there was no competent evidence adduced under oath at the hearing upon which the special judge could render his decision. Furthermore, whenever a person is committed to jail and suffers the loss of his liberty, he must have an opportunity to appeal the proceeding by which he was convicted. An effective appeal can only be prosecuted upon an adequate transcript and, accordingly, we hold that whenever a person faces a possible loss of his liberty, except for contempt committed in the presence of the court, a court reporter must be available and a stenographic record of the proceedings made. Regardless of whether the contempt is civil or criminal, the jail is the same, and if an individual is indigent and unable to afford the cost of a transcript for appeal, it is the obligation of the State to provide him with one. ¹ An adequate record of the proceeding is one of the fundamental rights of due process. Even in civil proceedings where liberty is not at stake, but where a substantial interest is placed in jeopardy, we have required a transcript for appeal. North v. West Virginia Board of Regents, W.Va., 233 S.E.2d 411 (1977). Likewise, we have required full verbatim transcripts in mental health commitment proceedings. Syllabus pt. 8, State ex rel. Hawks v. Lazaro, W.Va., 202 S.E.2d 109 (1974).

III

The petitioner argues that his writ below should have been granted because the sheriff failed to make a proper return to justify the sheriff's continued custody of petitioner. Petitioner argues that petitioner's verified petition was uncontroverted and that the absence of a responsive pleading in the form of a return gave the judge no disputed issues of fact on which to hold the hearing. We agree that the sheriff should have filed a return and that W.Va.Code, 53-4-7 (1923) contemplates that in habeas corpus proceedings the person having custody of petitioner's body should make a return setting forth sufficient facts to justify continued detention of the party seeking release. See State ex rel. Vizziri v. Lowe, 103 W.Va. 266, 137 S.E. 10 (1927) and State ex rel. Neider v. Reuff, 29 W.Va. 751, 2 S.E. 801 (1887). However, we also recognize that the real party in interest in this case was not the State, but rather a private individual who had caused petitioner to be incarcerated in vindication of her individual, private rights.

The record discloses that petitioner's former wife was not given formal notice of the habeas corpus hearing, although the special judge did direct petitioner's counsel to inform Mrs. Smoot's counsel of the hearing informally. Under these circumstances, while a formal return is required of or on behalf of the custodian of the petitioner's body, when it appears to the judge that a reasonable opportunity to be heard has not been afforded to the real party in interest, the judge may order that notice be given formally to the real party in interest, and a continuance granted for a reasonable time for the purpose of permitting a return to be drafted and filed, unless the requirement of a return is waived on the record or waived by conduct of all parties by trying the issues as if a return had been filed.

IV

Finally, the petitioner challenges the validity of the original order of incarceration because the Special Judge, John Esposito, was under thirty years of age at the time that he acted as special judge and could not, therefore, enter any valid order. We hold that the special judge's being under thirty makes all of his orders void, since W.Va.Const., art. 4, § 4, provides that: "(J)udges must have attained the age of thirty," . . . a requirement that is jurisdictional. The appellee argues that orders of Special Judge Esposito are valid, despite his being under the proper age because Mr. Esposito was a de facto judge, disabled for a reason unknown at the time to any of the parties, who acted under color of lawful authority pursuant to the parties' stipulation. For authority, appellee cites Tower v. Whip, 53 W.Va. 158, 44 S.E. 179 (1903), and State ex rel. Matko v. Ziegler, 154 W.Va. 872, 179 S.E.2d 735 (1971). We overrule Tower v. Whip, and so much of Matko v. Ziegler as implies that a judge who lacks the qualifications mandated by the West Virginia Constitution for regular judges may acquire legitimacy for his orders by virtue of being a de facto judge.

The Court is of the opinion that judges should have a special place in the universe of governmental officials, and that the orders of a special judge who has not met the constitutional prerequisites for holding that office are invalid. ² Consequently, we hold that all orders entered by ...