State ex rel. Askin v. Dostert, No. 15538

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation295 S.E.2d 271,170 W.Va. 562
PartiesSTATE ex rel. Steven ASKIN v. Hon. Pierre DOSTERT, Judge, & Donald Giardina, Sheriff.
Docket NumberNo. 15538
Decision Date17 June 1982

Page 271

295 S.E.2d 271
170 W.Va. 562
STATE ex rel. Steven ASKIN
v.
Hon. Pierre DOSTERT, Judge, & Donald Giardina, Sheriff.
No. 15538.
Supreme Court of Appeals of West Virginia.
June 17, 1982.

Page 272

[170 W.Va. 563] Syllabus by the Court

1. The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals.

2. The common law power of inferior courts to require security for good behavior, as applied to attorneys, is obsolete and has been superceded by the modern organization of judicial power in West Virginia; therefore W.Va.Code § 30-2-8 [1923] is of no force and effect.

3. Where a court has jurisdiction to issue a particular order, the fact that such order is erroneous, irregular, or is improvidently rendered, does not justify one in disregarding or violating the order, and then citing the court's error as a defense to a charge of contempt. Where, however, the court or judge lacks jurisdiction, or is without power or authority to render the order, refusal to comply with such order may not be punished as contempt.

G. Patrick Jacobs, Charleston, D. Michael Burke, Martinsburg, for relator.

Richard S. Glaser, Jr., and Marianne K. Hoover, Asst. Attys. Gen., Charleston, for respondents.

McGRAW, Justice:

In this habeas corpus proceeding the petitioner, Steven M. Askin, challenges the constitutionality of W.Va.Code § 30-2-8 (1980 Replacement Vol.), which recognizes the right of a court to require from an attorney security for his good behavior. 1

The petitioner is an attorney at law licensed to practice in the State of West Virginia. On the morning of March 26, 1982, he was representing a client in connection with a charge of murder in the Circuit Court of Jefferson County, Judge Pierre E. Dostert, one of the respondents herein, presiding.

The petitioner asserts that while cross-examining a State witness he was attempting to show inconsistencies between the witness' in-court testimony and a prior statement the witness had given the State Police, by the use of a photocopy of the written statement of the witness procured from the prosecuting attorney. The record indicates that the trial judge, acting sua sponte and without objection from the prosecuting attorney, asked the petitioner whether the statement he was using to impeach the witness was signed by the witness. The petitioner replied that it was not, but that it was a photocopy of the written statement

Page 273

the witness had given [170 W.Va. 564] the State Police, and that he had received the photocopy from the prosecutor. The trial judge, again acting sua sponte and without objection by the State, informed the petitioner that he could not cross-examine the witness with an unsigned copy of the statement.

The petitioner then asked the court to require the prosecuting attorney to produce the witness' signed statement. However, the court informed the petitioner that he could not cross-examine the witness by use of the signed statement because it had not been introduced into evidence. The petitioner attempted to inform the court of the provisions of Rule 26.2 of the West Virginia Rules of Criminal Procedure 2 by reading the rule to the court, and explained that he was not trying to introduce the statement into evidence.

At this point the trial judge directed the sheriff to remove the jury from the courtroom, and ordered the petitioner to post a security of $50 to guarantee his good conduct for the remainder of the trial. The petitioner informed the court that he did not have $50 in cash on his person. The court then directed the petitioner to write a check in the amount of $50. The petitioner responded that he did not have a check with him and moved for a mistrial. The court next directed the petitioner to go to the judge's chambers and to telephone his office and have a check sent to court. When the petitioner refused, the court ordered him into the custody of the sheriff, the other respondent herein, for contempt of court,

Page 274

"for a period of ten (10) days, or until such time as he obeys the order of the court, to post Fifty Dollars ($50.00) conditioned upon his good behavior ...." The [170 W.Va. 565] trial was recessed pending obedience of this order. 3

That same day the petitioner, while in jail, filed his petition by counsel for a writ of habeas corpus, which was granted by this Court. The petitioner was released from jail without bond at 1:50 p. m. after approximately four hours of incarceration.

The petitioner contends that he should not be found in contempt of court because the order of the circuit court commanding him to post $50 security conditioned upon his good behavior has no legitimate basis in the law. He argues that W.Va.Code § 30-2-8 is unconstitutional because it is vague and overbroad and does not give a person of ordinary intelligence fair notice of what conduct is prohibited by the statute, and thus violates the guaranty of due process contained in article 3, section 10 of the West Virginia Constitution.

The petitioner further contends that the statute infringes upon his right to free speech, as protected by W.Va.Const. art. 3, § 7, and upon his client's right to counsel, protected by W.Va.Const. art. 3, § 14. The petitioner argues that W.Va.Code § 30-2-8, as utilized by the respondent, inhibits zealous advocacy on behalf of counsel representing criminal defendants, and should be declared unconstitutional.

The petitioner argues in the alternative that even if W.Va.Code § 30-2-8 is held to be constitutional, he should not be held in contempt of court because the trial court's ruling thereon constituted an abuse of discretion and lacked sufficient legal foundation. He contends that the order of the trial court finding him in contempt was invalid under the criteria established by this Court in State v. Boyd, 166 W.Va. 690, 276 S.E.2d 829 (1981), because the petitioner's conduct did not justify a citation for contempt, and that his failure to obey an unlawful order of a court does not constitute contempt.

The respondents answer stating that this proceeding is now moot because the petitioner was released from jail approximately four hours after his incarceration, and that he returned to the courtroom and complied with the trial court's evidentiary ruling. The respondents further argue that rulings on evidentiary matters are within the sound discretion of the trial court, and are final until overruled by an appellate court, and therefore, the petitioner abused his position as an officer of the court by refusing to honor the court's ruling. The respondents contend the petitioner's behavior warranted the posting of bond, and his refusal to do so justified a finding of contempt and incarceration. Respondent Dostert has also filed an individual reply to the writ issued by this Court, in which he contends that there is no outstanding controversy in this matter, and that the petitioner's conduct justified the imposition of the good behavior bond.

There are two basic issues raised by this proceeding: (1) does a West Virginia circuit court have the power to require security for an attorney's good behavior; and (2) does the refusal to obey a court order requiring such security constitute a basis for a contempt citation.

I.

At common law many American courts claimed authority to govern the admission and practice of attorneys appearing before them as a necessary component of their inherent judicial powers. See, e.g., West Virginia State Bar v. Earley, 144 W.Va. 504, 529-530, 109 S.E.2d 420, 436 (1959) and cases cited therein. In addition, state legislatures often enacted statutes or rules regulating the admission and practice of attorneys in state courts. See Annot., 144 A.L.R. 150 (1943). Much confusion resulted from these two divergent lines of authority, and different state courts took different approaches when faced with challenges to statutes regulating the practice of law. Id.

Page 275

It was decided at an early point in West Virginia jurisprudence that the Legislature[170 W.Va. 566] possessed the authority to govern the admission and practice of attorneys in West Virginia courts, but that the judiciary retained its common law supervisory powers "to exclude or admit, on application for admission, or to dismiss, after admission, for misconduct or unfitness of character ...." Ex parte Hunter, 2 W.Va. 122, 182 (1867). However, as a result of legislative and constitutional modifications, the dichotomy of authority to regulate the practice of law, once shared by the legislative and judicial departments, has not survived in West Virginia. Today, the exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals. State ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641 (1981).

The position of this Court as sole regulator of the practice of law in West Virginia began with the enactment by the Legislature, in 1945, of W.Va.Code § 51-1-4a (1981 Replacement Vol.). See 1945 W.Va. Acts ch. 44. The statute mandated that this Court promulgate rules defining the practice of law, prescribe a code of ethics governing the professional conduct of attorneys, and adopt procedures for disciplining violations thereof. 4 Enactment of W.Va.Code § 51-1-4a thus placed in this Court exclusive authority to promulgate rules governing the practice of law, and conclusively transferred authority for admitting to the practice of law from local courts to the Supreme Court of Appeals. This shift of power was recognized in West Virginia State Bar v. Earley, supra. Furthermore, with ratification of the 1974 Judicial Reorganization Amendment the exclusive power of this Court to govern the practice of law attained the status of constitutional mandate. W.Va.Const. art. 8, § 1 et seq.; see State ex rel. Frieson v. Isner, supra. Thus, the Legislature first delegated its authority to regulate the practice of law to...

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33 practice notes
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...it is ultimately determined to have been erroneously or improvidently awarded." See also Syl. pt. 3, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982) ("Where a court has jurisdiction to issue a particular order, the fact that such order is erroneous, irregular,......
  • Committee on Legal Ethics of West Virginia State Bar v. Douglas, No. 17949
    • United States
    • Supreme Court of West Virginia
    • March 7, 1988
    ...the practice of law in West Virginia is vested in the Supreme Court of Appeals." Syllabus Point 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 3. This Court may in appropriate circumstances exercise its inherent supervisory power to review attorney disciplinary charge......
  • Lawyer Disciplinary Bd. v. Kupec, No. 23011.
    • United States
    • Supreme Court of West Virginia
    • April 2, 1998
    ...of law in West Virginia is vested in the Supreme 505 S.E.2d 627 Court of Appeals." Syl. pt. 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982). See also Syl., Christie v. W. Va. Health Care Cost Review Authority, 176 W.Va. 420, 345 S.E.2d 22 (1986). In an effort to......
  • Morris v. Painter, No. 29758.
    • United States
    • Supreme Court of West Virginia
    • July 3, 2002
    ...ill or that he/she should not be transferred to another facility because of a mental illness.16 See State ex rel. Askin v. Dostert, 170 W.Va. 562, 568, 295 S.E.2d 271, 277 (1982) ("It is fundamental that no individual can be required to forfeit constitutionally protected property and l......
  • Request a trial to view additional results
33 cases
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...it is ultimately determined to have been erroneously or improvidently awarded." See also Syl. pt. 3, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982) ("Where a court has jurisdiction to issue a particular order, the fact that such order is erroneous, irregular,......
  • Committee on Legal Ethics of West Virginia State Bar v. Douglas, No. 17949
    • United States
    • Supreme Court of West Virginia
    • March 7, 1988
    ...the practice of law in West Virginia is vested in the Supreme Court of Appeals." Syllabus Point 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 3. This Court may in appropriate circumstances exercise its inherent supervisory power to review attorney disciplinary charge......
  • Lawyer Disciplinary Bd. v. Kupec, No. 23011.
    • United States
    • Supreme Court of West Virginia
    • April 2, 1998
    ...of law in West Virginia is vested in the Supreme 505 S.E.2d 627 Court of Appeals." Syl. pt. 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982). See also Syl., Christie v. W. Va. Health Care Cost Review Authority, 176 W.Va. 420, 345 S.E.2d 22 (1986). In an effort to......
  • Morris v. Painter, No. 29758.
    • United States
    • Supreme Court of West Virginia
    • July 3, 2002
    ...ill or that he/she should not be transferred to another facility because of a mental illness.16 See State ex rel. Askin v. Dostert, 170 W.Va. 562, 568, 295 S.E.2d 271, 277 (1982) ("It is fundamental that no individual can be required to forfeit constitutionally protected property and l......
  • Request a trial to view additional results

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