State ex rel. Koppers Co., Inc. v. International Union of Oil, Chemical and Atomic Workers

• Decision Date: 28 October 1982
• Docket Number: Nos. 15393,15394,s. 15393
• Citation: 171 W.Va. 290,298 S.E.2d 827
• Parties: STATE ex rel. KOPPERS CO., INC., etc. v. INTERNATIONAL UNION OF OIL, CHEMICAL AND ATOMIC WORKERS, etc., et al., Defendants Below, Kenneth Rhodes. STATE ex rel. KOPPERS CO., INC., etc. v. INTERNATIONAL UNION OF OIL, CHEMICAL AND ATOMIC WORKERS, etc., et al., Defendants Below, Jerald L. Cheek.
• Court: West Virginia Supreme Court

Page 827

298 S.E.2d 827

171 W.Va. 290

STATE ex rel. KOPPERS CO., INC., etc.

v.

INTERNATIONAL UNION OF OIL, CHEMICAL AND ATOMIC WORKERS,

etc., et al., Defendants Below, Kenneth Rhodes.

STATE ex rel. KOPPERS CO., INC., etc.

v.

INTERNATIONAL UNION OF OIL, CHEMICAL AND ATOMIC WORKERS,

etc., et al., Defendants Below, Jerald L. Cheek.

Nos. 15393, 15394.

Supreme Court of Appeals of

West Virginia.

Oct. 28, 1982.

Dissenting Opinion Dec. 14, 1982.

Syllabus by the Court

1. Indirect criminal contemnors are entitled to the same rights as criminal defendants, including a right to be prosecuted by a state's attorney.

2. A party's private counsel is prohibited from replacing the prosecuting attorney whose duty it is to prosecute criminal contempt charges stemming from a civil suit; and it makes no difference whether such private lawyer is appointed special prosecutor.

Abraham Pinsky, Wellsburg, William Fahey, Weirton, for appellees.

Patrick Cassidy, Patrick M. Flatley, O'Brien, Cassidy & Gallagher, Wheeling, for appellants.

HARSHBARGER, Justice:

The International Union of Oil, Chemical and Atomic Workers, Local Union No. 3-42971's contract with Koppers Co., Inc. expired May 31, 1980. No new agreement was reached, so the union began picketing at Koppers' Follansbee plant on June 1. Koppers convinced a Brooke County Circuit Court judge to issue a temporary injunction on June 9 against mass picketing, traffic or business obstruction, and assaults. Peaceful picketing by four local union picketers at a time on a twenty-foot strip of the plant's private entrance road, was allowed. That injunction was amended on June 25 to prohibit picketing on the twenty-foot strip of land.

Koppers filed fourteen petitions for attachment and for orders to show cause why respondents should not be held in contempt, that were made returnable on August 6, 1980. These hearings were continued until August 14. Six more petitions were filed, also returnable August 14.

Defense counsel requested jury trials, the right to which was guaranteed to criminal contempt defendants in Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980). Koppers came to us to prohibit the jury trials, contending that because jail terms were not requested, they were not appropriate; but we refused its petition. More attachment petitions were filed--six on August 28, six on August 29, eighteen on September 9, 1980. All fifty petitions naming forty-nine individuals, including appellants Cheek and Rhodes (many strikers were named in more than one petition, individually and as parts of groups), were set for trials starting September 15, 1980.

The trial court took up pretrial matters on the 15th. During that conference, all contempt cases originally docketed and styled in equity were transferred to the criminal docket and entitled "State of West Virginia on relation of Koppers Company, Inc." Union counsel unsuccessfully moved that they be tried by the county prosecutor, and Koppers' lawyers asked to be appointed special prosecutors. The trial court permitted Koppers' counsel to prosecute, although he did not formally designate them special prosecutors.

The dispositive question is, should private lawyers representing a party that obtained an injunction prosecute criminal contempts arising from injunction violations?

A criminal contempt, as opposed to a civil contempt, is prosecuted to vindicate the authority and dignity of a court. State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981); Hendershot v. Hendershot, supra; Floyd v. Watson, 163 W.Va. 65, 254 S.E.2d 687, 691 (1979); Eastern Associated Coal Corp. v. Doe, 159 W.Va. 200, 220 S.E.2d 672 (1975). When a criminal contempt is not committed in a court's presence, it is an indirect (or constructive) contempt. The court is informed of the alleged affront by affidavit and petition for attachment or order to show cause. Issuance of an attachment initiates a separate and distinct criminal proceeding, different from the civil suit that spawned the contempt. State ex rel. Walker v. Giardina, 170 W.Va. 483, 294 S.E.2d 900 (1982); State ex rel. Taylor v. Devore, 134 W.Va. 151, 58 S.E.2d 641 (1950); McMillan v. Hickman, 35 W.Va. 705, 14 S.E. 227, 230 (1891); Alderson v. Commissioners, 32 W.Va.. 640, 9 S.E. 868, 5 L.R.A. 334, 25 Am.St.Rep. 840 (1889). A criminal contempt should be brought in the name of the State. Hendershot, supra at Footnote 1; McMillan, supra; Alderson, supra. ¹

Indirect criminal contemnors are entitled to the same rights as other criminal defendants, e.g., the presumption of innocence, proof beyond a reasonable doubt, criminal rules of evidence, right to counsel, full and plain information about the character and cause of the accusation, and admission to bail. Doctors Memorial Hospital, Inc. v. Woodruff, 165 W.Va. 324, 267 S.E.2d 620 (1980); Hendershot, supra; Smoot v. Dingess, 160 W.Va. 558, 236 S.E.2d 468 (1977); State ex rel. Hoosier Engineering Co. v. Thornton, 137 W.Va. 230, 72 S.E.2d 203 (1952); State ex rel. West Virginia-Pittsburgh Coal Co. v. Eno, 135 W.Va. 473, 63 S.E.2d 845 (1951); State ex rel. Continental Coal Co. v. Bittner, 102 W.Va. 677, 136 S.E. 202, 49 A.L.R. 968 (1926); State v. Davis, 50 W.Va. 100, 40 S.E. 331 (1901). See W.Va. Rules of Criminal Procedure, Rule 42(b). Chief Justice Miller, with Justice McGraw and myself agreeing, suggested that criminal procedure arrest requirements should be imposed when an attachment for criminal contempt is perfected. Hendershot v. Handlan, 162 W.Va. 175, 248 S.E.2d 273, 283 (1978) (Miller, J., concurring and dissenting in part). Also, contemnors aree entitled to be prosecuted by a state's attorney as are other criminal defendants. It is a standard criminal procedure involving the government's attempt to punish violators of its laws. ²

We have discussed the role of a prosecuting attorney in criminal prosecutions. State ex rel. Skinner v. Dostert, 166 W.Va. 743, 278 S.E.2d 624 (1981); State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 (1979); State v. Atkins, 163 W.Va. 502, 2611 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980). A public prosecutor's fundamental duty is to do justice; his or her presence should protect against overzealousness and an unrestrained pursuit of private vindication. Code of Professional Responsibility, EC-7-13, West Virginia Code, Appendix; ABA Standards of Criminal Justice (2d Ed. 1980), Standard 3-1.1(c); 44 A.B.A.J. 1159, 1218 (1958); ABA Opinion 150 (1936). Participation by a private prosecutor does not obviate the need for a public prosecutor's presence, he being ultimately responsible for discretion regarding prosecution of alleged public law offenders. State v. Atkins, supra. If the government's prosecutor fails to perform his duties, he is answerable under W.Va. Const. art. IX, § 4 and art. IV, § 6. State ex rel. Preissler v. Dostert, supra; State ex rel. Skinner v. Dostert, supra.

Although a private prosecutor is held to the same high standards as a public one, the apparent conflict of interest and pressure of "wearing two hats" militates against permitting a party's private counsel to prosecute a criminal contempt charge stemming from a civil suit; and it makes no difference whether he acts as private lawyer or by appointment as special prosecutor. See Code of Professional Responsibility, W.Va.Code, App., EC-7-13, EC-5-1, EC-5-11, EC-5-14, EC-5-23; ABA Standards for Criminal Justice (2d Ed. 1980), Standard 3-2.1 and comments, p. 3.13. ³ A trial judge may use his discretion about whether to permit a party's counsel to act as a private prosecutor to assist the government prosecutor. State v. Atkins, supra. We also note from Atkins: "[T]he role of a private prosecutor does not imply that he should be favored for selection as special prosecutor where the regular prosecutor is disqualified under W.Va.Code, 7-7-8." Id., 163 W.Va. at 506-507, 261 S.E.2d at 59.

We are supported by decisions in other jurisdictions. In re Lahm Industries, Inc., 609 F.2d 567, 569-70 (1st Cir.1979); Ramos Colon v. United States Attorney for District of Puerto Rico, 576 F.2d 1, 5 (1st Cir.1978); Brotherhood of Locomotive Firemen and Enginemen v. United States, 411 F.2d 312 (5th Cir.1969); Kienle v. Jewel Tea Co., 222 F.2d 98, 100 (7th Cir.1955); Harthun v. District Court for Second Judicial District, 178 Colo. 118, 495 P.2d 539, 542 (1972); Peterson v. Peterson, 278 Minn. 275, 153 N.W.2d 825 (1967); Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274, 278 (1948). See generally Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183 (1971).

We also recognize decisions that permit private counsel, with appointment by the court as special prosecutor, to prosecute a criminal contempt. Musidor, B.V. v. Great American Screen, 658 F.2d 60 (2d Cir.1981), cert. denied, 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656 (1982); United States v. Cunningham, 599 F.2d 120 (6th Cir.1979); McCann v. New York Stock Exchange, 80 F.2d 211 (2d Cir.1935), cert. denied, 299 U.S. 603, 57 S.Ct. 233, 81 L.Ed. 444 (1936) (court may appoint a party's attorney to prosecute a contempt if respondent is properly notified that it is a criminal action); People v. Martin-Trigona, 94 Ill.App.3d 519, 49 Ill.Dec. 743, 418 N.E.2d 763, 767 (1980), reh. and U.S. cert. denied (1981) (court may appoint a private litigant to prosecute contempt in a direct criminal contempt proceeding); Department of Health v. Roselle, 34 N.J. 331, 169 A.2d 153 (1961) (New Jersey has special statute authorizing a party other than a prosecutor to prosecute a contempt, R.R. 4:87-2(c); R.R. 3:8-2(c)).

Justice is better served by avoiding appearances of impropriety and of inherent conflicts of interest, presented when a private party's counsel in a civil suit is permitted to prosecute a criminal contempt against an opposing party. We agree with the Nebraska Supreme Court's language in Leeman v. Vocelka, supra 32 N.W.2d, at 278:

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