State ex rel. Walker v. Giardina

• Citation: 170 W.Va. 483,36 A.L.R. 4th 964,294 S.E.2d 900
• Decision Date: 22 June 1982
• Docket Number: No. 15507,15507
• Court: Supreme Court of West Virginia
• Parties: , 36 A.L.R.4th 964 STATE ex rel. Gary William WALKER v. Donald GIARDINA, Sheriff, etc., W. H. Gifft & Ray Boyd, etc. West Virginia

Page 900

294 S.E.2d 900

170 W.Va. 483, 36 A.L.R.4th 964

STATE ex rel. Gary William WALKER v. Donald GIARDINA, Sheriff, etc., W. H. Gifft & Ray Boyd, etc.

No. 15507.

Supreme Court of Appeals of

West Virginia.

June 22, 1982.

Rehearing Denied Sept. 16, 1982.

Syllabus by the Court

1. A party may not disobey a lawful order of an appellate court because he has been advised to do so by a lower court.

2. "A person, although not a party to a proceeding, may be charged with contempt for the violation of a court's order entered therein if he has actual knowledge of such order and is acting in concert or privity with a party." Syllabus Point 1, Hendershot v. Handlan, 162 W.Va. 175, 248 S.E.2d 273 (1978).

3. "One may be charged with contempt for violating a court's order, of which he has actual knowledge, notwithstanding that at the time of the violation the order had not yet been formally drawn up." Syllabus Point 2, Hendershot v. Handlan, 162 W.Va. 175, 248 S.E.2d 273 (1978).

4. This Court possesses the power to punish a party for contempt of an order executed by this Court.

5. "Whether a contempt is classified as civil or criminal does not depend upon the act constituting such contempt because such act may provide the basis for either a civil or criminal contempt action. Instead, whether a contempt is civil or criminal depends upon the purpose to be served by imposing a sanction for the contempt and such purpose also determines the type of sanction which is appropriate." Syllabus Point 1, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981).

6. "Where the purpose to be served by imposing a sanction for contempt is to punish the contemner for an affront to the dignity or authority of the court, or to preserve or restore order in the court or respect for the court, the contempt is criminal." Syllabus Point 4, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981).

7. "The appropriate sanction in a criminal contempt case is an order sentencing the contemner to a definite term of imprisonment or an order requiring the contemner to pay a fine in a determined amount." Syllabus Point 5, State ex rel. Robinson v. Michael, 166 W.Va. 660, 276 S.E.2d 812 (1981).

8. The rationale for a jury trial in a criminal contempt proceeding as set out in Hendershot v. Hendershot, 164 W.Va. 190, 263 S.E.2d 90 (1980), was based on Section 14 of Article III of the West Virginia Constitution and, therefore, must be deemed to impose a similar limitation on our criminal contempt power.

9. When a court has reliable information that there has been a deliberate violation of its order by a person having knowledge of its order, the court may in its discretion initiate a criminal contempt proceeding through the prosecuting attorney of the county where the court sits and from which its order issued.

Sprague W. Hazard, Martinsburg, for appellant.

Braun Hamstead, Pros. Atty. for Jefferson County, Charles Town, for appellees.

MILLER, Chief Justice:

This case is before us on a rule to show cause for contempt of this Court. The respondents are two deputy sheriffs, who were custodians of the Jefferson County Jail on the evening of February 9, 1982. The charge is made that they refused to obey a stay of order of this Court.

On November 22, 1981, Petitioner Gary William Walker was arrested on a fugitive warrant and incarcerated in the Jefferson County Jail from that date until February 9, 1982. On January 4, the petitioner submitted a petition in the Circuit Court of Jefferson County for a writ of habeas corpus in opposition to extradition proceedings brought against him by the State of Florida. The Circuit Court Judge, Pierre E. Dostert, conducted an evidentiary hearing on February 9, with the petitioner presenting evidence to controvert the facts contained in the fugitive warrant. The habeas corpus relief was denied.

A stay of execution for reasonable time in order to perfect an appeal to this Court was sought by the petitioner and denied by the trial court. Whereupon, pursuant to Rule 6(c) and 2 of the Rules of Appellate Procedure West Virginia Supreme Court of Appeals, ¹ an application was made to this Court for a stay of execution. We granted a stay of execution and at 8:00 P.M. on February 9, the Clerk of this Court, George W. Singleton, telephonically informed one of the petitioner's jailors, Ray Boyd, that a stay of execution had been granted by this Court. Mr. Singleton also telephoned the prosecuting attorney, Braun A. Hamstead, who subsequently verified the stay and that George W. Singleton was the Clerk of the West Virginia Supreme Court of Appeals to the other jailor, W. H. Gifft.

Jailor Gifft then informed Judge Dostert of the stay issued by this Court, and was instructed by Judge Dostert to ignore our stay order. At 9:00 P.M. on February 9 the petitioner was released to Florida officials who took the petitioner to Virginia and transported him to Florida the next day.

This petition was then brought which among other things sought a rule to show cause as against Jailors Gifft and Boyd to determine if they should be held in contempt of this Court for failing to obey the telephonically communicated order of this Court. We granted a rule to show cause returnable April 27, 1982. ²

I.

Jailors Boyd and Gifft clearly ignored our order for a stay of execution in the proceedings against the petitioner. In subsequent sworn depositions taken in this matter, they readily admit that they recognized the order and its legality and that they disobeyed it by turning over the prisoner to Florida officials. Therefore, they have admitted their contempt. They defend their action by claiming that they were instructed to ignore our order and turn the petitioner over by Circuit Court Judge Dostert. We do not recognize this as a valid defense as one is not excused for his disobeyance of a valid court order because someone told him not to obey it.

This principle of law has developed in the area of the attorney-client relationship where it has been held that the advice of counsel is not ordinarily a defense to contempt resulting from a willful disobedience of a lawful court order. United States v. Seavers, 472 F.2d 607 (6th Cir. 1973); Sawyer v. Dollar, 190 F.2d 623 (D.C.Cir.1951); Becton, Dickinson and Company v. Food and Drug Administration, 448 F.Supp. 776 (N.D.N.Y.1978); United States v. Wefers, 314 F.Supp. 137 (D.N.H.1970); City of Vernon v. Superior Court, 38 Cal.2d 509, 241 P.2d 243 (1952); Alves v. Braintree, 341 Mass. 6, 166 N.E.2d 720 (1960); 17 C.J.S. Contempt § 38 (1963 Ed.). Furthermore, an attorney is subject to punishment for instructing a client to disobey a court order. Sawyer v. Dollar, supra; In re Apfel, 202 App.Div. 76, 195 N.Y.S. 325 (1922); 7 C.J.S. Attorney and Client § 83 (1980 Ed.).

In Bailey v. Bailey, 127 W.Va. 826, 829, 35 S.E.2d 81, 82-83 (1945), the contemnor, Bailey, sought to avoid contempt by asserting he had relied on advice of counsel in regard to making reduced alimony payments, but we said:

"The fact that Bailey may have been advised to the contrary and may have been told that the contract was not superseded by the decree but remained in effect, although it may mitigate the trial chancellor's pronouncement if he is found guilty of contempt, cannot otherwise affect the result."

See also State ex rel. Mason v. Harper's Ferry Bridge Co., 16 W.Va. 864 (1879).

In Sawyer v. Dollar, supra, the United States Court of Appeals for the District of Columbia had determined that certain stock in a steamship company held by the Secretary of Commerce belonged to the shareholders of the company and ordered the shares to be delivered. The Secretary sought to rely on the Department of Justice's advice that he did not have to deliver the shares. The court, however, refused to relieve him of contempt for failing to deliver the stock certificates as ordered. Moreover, even his claim that he was acting on the advice of the President was of no avail.

"In the present case the courts have decided that the Commission and the Secretary did not and do not hold these shares on behalf of the United States as its agents. The court has power to enforce that judgment in so far as the Secretary and the members of the Commission are concerned. The executive branch of the Government has no power in the face of that judgment to decide that the Secretary does hold the shares as agent of the United States. To claim that the executive has such power is to claim the total independence of the executive from judicial determinations in justiciable cases and controversies. To characterize such judicial determinations as illegal coercion of the executive is to deny one of the fundamental concepts of our government." Sawyer v. Dollar, supra at 639.

The Secretary's final contention was that he had been found not in contempt and ordered to withhold the stock by a California court. The court rejected this claim stating:

"The decision of the California court that the respondents here were not in contempt there could not and did not foreclose this court from proceeding with the present contempt proceeding, and its judgment of no contempt is not res judicata here." Sawyer v. Dollar, supra at 634.

We have not been able to find a case where a trial court judge directed a party to disobey a stay order from an appellate court. We conclude however based on the foregoing authorities that a party may not disobey a lawful order of an appellate court because he has been advised to do so by a lower court.

II.

The fact that our order was orally communicated by telephone rather than in writing is of no relevance since the parties involved were aware of the contents of the order and its authenticity. In State v. Robertson, 124 W.Va. 648, 22 S.E.2d 287 (1942), this Court issued a temporary injunction under W.Va.Code, 53-5-5, to prevent the convening of a nominating convention. The contemnors were persons who were active in...