Joanna I. Tabit
Deputy Attorney General
Charleston, West Virginia
Attorney for the Appellee
Franklin D. Cleckley
Morgantown, West Virginia
Attorney for the Appellant,
Paul M. Cowgill, Jr.
This Opinion was delivered PER CURIAM.
"A circuit court has no power to proceed summarily to
punish for contempt of such court except in the instances
enumerated in Code, 1931, 61-5-26." Syllabus point 2, State ex
rel. Arnold v. Conley, 151 W.Va. 584, 153 S.E.2d 681 (1966).
This is an appeal by Paul M. Cowgill, Jr., an attorney
who represented Jackie Lee Smarr in a felony case, from an order of
the Circuit Court of Doddridge County, holding him, Paul M.
Cowgill, Jr., in contempt of court for misrepresentations relating
to his representation of Mr. Smarr. Specifically, the court fined
Mr. Cowgill $500.00 for repeatedly misrepresenting to the court the
status of Mr. Smarr's appeal. In the present proceeding, Mr.
Cowgill contends that the trial court violated his right to due
process of law in the contempt proceeding by acting in a summary
manner and by refusing to allow him a jury trial. He also claims
that the court erred in refusing to allow him the right to obtain
the assistance of an attorney of his choice. After reviewing the
record and the questions presented, this Court disagrees with the
appellant's assertions. Accordingly, the judgment of the Circuit
Court of Doddridge County is affirmed.
The appellant, Paul M. Cowgill, Jr., was appointed by the
Circuit Court of Doddridge County to represent Jackie Lee Smarr in
a felony proceeding. Mr. Smarr was convicted of the felony, and
the appellant was responsible for prosecuting an appeal in his
On a number of occasions, the appellant represented to
the circuit court which had tried Jackie Lee Smarr that an appeal
was in the process of being completed or that it was pending before
the Supreme Court of Appeals. In spite of these representations,
on January 26, 1990, when the trial court directly confronted the
appellant concerning the status of Mr. Smarr's case, the appellant
advised the court that no appeal had been taken, but that he had
attempted to obtain an executive pardon for Mr. Smarr.
After learning that no appeal had been taken in spite of
the appellant's representations, the trial court issued a show
cause order directed at the appellant whereby the appellant was
required to show cause why he should not be held in contempt of
court for his actions relating to the appeal of Jackie Lee Smarr.
On the day set for the hearing under the show cause
order, the appellant appeared and filed a motion for a continuance.
In that motion he alleged, among other things, that he wished to be
represented by an attorney of his choice, but that his attorney of
choice had a conflict but could appear before the court on the next
motion day. After hearing the appellant's representations, the
trial court summarily denied the motion for a continuance and
proceeded with the contempt hearing. At that point, the appellant
elected to stand silent and, based upon his silence, the trial
court found him in contempt of court and fined him $500.00. It is
from this judgment of contempt that the appellant now presents this
On appeal, the appellant claims that he had a right to a
jury trial and that, under the circumstances, the trial court
violated his right to due process when the court summarily found
him in contempt of court. He also claims that the trial court
committed reversible error by denying him assistance of counsel and
that the overall proceedings denied him due process of law.
In West Virginia the common law power of all courts,
except the Supreme Court of Appeals, to punish summarily for
contempt is curtailed by W.Va. Code, 61-5-26. See State ex rel.
McNinch v. Porter, 105 W.Va. 441, 143 S.E. 93 (1928); State v.
Hansford, 43 W.Va. 773, 28 S.E. 791 (1897). Although the power to
punish summarily is curtailed, it is not altogether abolished, and
W.Va. Code, 61-5-26, still provides that:
The courts and the judges thereof may issue attachment for contempt and punish them summarily only in the following cases: (a) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; (b) violence or threats of violence to a judge or officer of the court, or to a juror, witness, or party going to, attending or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court; (c) misbehavior of an officer of the court, in his official character; (d) disobedience to or resistance of any officer of the court, juror, witness, or other person, to any lawful process, judgment, decree or order of the said court. No court shall, without a jury, for any such contempt as is mentioned in subdivision (a) of this section, impose a fine exceeding $50.00, or imprison more than ten days . . . No court shall impose a fine for contempt, unless the defendant be present in court, or shall have been served with a rule of the court to show cause, on some certain day, and shall have failed to appear and show cause.
While this Court has been vigilant in requiring jury
trials and due process of law in criminal contempt proceedings, it
is also recognized that in the specific instances enumerated in
W.Va. Code, 61-5-26, jury trials are not required and that a trial
court may punish summarily. See Hendershot v. Hendershot, 164
W.Va. 190, 263 S.E.2d 90 (1980); State v. Boyd, 166 W.Va. 690, 276
S.E.2d 829 (1981). In the syllabus of State v. Boyd, Id., the
Court restated generally the principle established in syllabus
point 2 of State ex rel. Arnold v. Conley, 151 W.Va. 584, 153
S.E.2d 681 (1966), that:
A circuit court has no power to proceed summarily to punish for contempt of such court except in the instances enumerated in Code, 1931, 61-5-26.
In examining W.Va. Code, 61-5-26, this Court specifically
notes that it permits a circuit court to punish summarily for
contempt "misbehavior of an officer of the court, in his official
character". See, W.Va. Code, 61-5-26(c).
In discussing misbehavior of an officer of a court as
constituting contempt, this Court has long recognized that an
attorney-at-law practicing at the bar of the court is an "officer
of the court" within the meaning of the statute. See State ex rel.
Browning v. Jarrell, 156 W.Va. 256, 192 S.E.2d 493 (1972); State v.
Hansford, supra; Ex parte Quarrier, 2 W.Va. 569 (1866); Ex parte
Faulkner, 1 W.Va. 269 (1866).
In State v. Boyd, supra, the Court examined at some
length what constitutes misbehavior of an officer of the court in
his official character under W.Va. Code, 61-5-26. In that case,
the Court reviewed with approval principles set forth by the
Supreme Court of the United States in In re McConnell, 370 U.S.
230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), and Ex parte Hudgings,
249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919). In those cases,
the Supreme Court of the United States essentially found that for
conduct to be misbehavior, it must be something which would
obstruct or interrupt the administration of justice and that it
must be something done in the presence of the court.
In the present case, in addressing the issue of the
potential contempt of the appellant, Mr. Cowgill, the trial court
read into the record repeated instances of where the appellant, who
was officially representing Jackie Lee Smarr in the felony case
pending against Mr. Smarr, in response to direct and clear
questions addressed to him by the court, misrepresented the status
of Mr. Smarr's case and, in effect, indicated that he was
prosecuting an appeal in that case when, in fact, he had not taken
This Court believes that in this matter the appellant was
an officer of the court, since he was an attorney-at-law practicing
before the Bar of the court. It is apparent from reading the
transcript relating to the questions posed to him that one of the
concerns of the court in questioning him relating to the status of
Mr. Smarr's case was a desire by the court to see that the lawful
sentence of the court relating to Mr. Smarr be carried out and that
justice be administered in accordance with the law. By
misrepresenting the status of Mr. Smarr's appeal, the appellant
effectively delayed the execution of that sentence.
In this Court's view, by intentionally making
misrepresentations which delayed the execution of the lawful
sentence imposed by the circuit court, the appellant effectively
obstructed or interrupted the administration of justice under the
principles discussed in State v. Boyd, supra.
In analyzing the overall situation, the Court believes
that the appellant, as an officer of the court, engaged in
misbehavior before the court in his official character as an
officer of the court. The Court concludes that his actions
constituted misbehavior of an officer of the court, in his official
character, as contemplated by W.Va. Code, 61-5-26(c), and that
under the clear provisions of that statute the circuit court had
legal authority to punish the appellant summarily for his conduct.
Under the circumstances, the Court believes that the appellant's
contentions relating to the denial of a jury trial, his right to
assistance of counsel, and to the overall conduct of the
proceedings are without merit.
The judgment of the Circuit Court of Doddridge County is,