Clay County man has contempt charges reversed by Supreme Court
Steve Korris Apr. 27, 2007, 2:45am
CHARLESTON - Without an attorney, Thomas Auxier of Indore convinced the West Virginia Supreme Court of Appeals that Clay Circuit Court Judge Jack Alsop should not have held him in contempt.
The Justices unanimously ruled April 6 that Auxier did not receive proper notice of a contempt hearing Alsop held.
Auxier succeeded on his own. He appeared before the Justices Feb. 13 "pro se," meaning for himself.
He had displayed the same spirit of self reliance in a long dispute with the West Virginia Department of Highways over the proper width and maintenance of Payne Hollow Road.
In 2005, he placed fence posts along the road and strung wire from post to post, to mark a boundary between his property and the public right of way.
The highway department asked Alsop to order Auxier to remove the fence, and Alsop granted the order. Auxier angrily toppled the fence posts. He left the posts and wire along the road.
A neighbor, Billy Truman, asked Alsop to hold Auxier in contempt of the order to remove the fence. Alsop set a hearing Nov. 10, 2005. On Nov. 7, the court mailed a hearing notice to Auxier.
Auxier did not appear at the hearing.
On Nov. 12, Auxier traveled to the Indore post office and picked up several days worth of mail. He found the hearing notice. On Nov. 14, Alsop found Auxier in contempt and ordered him to pay $300 to Truman's attorney, Jerome Novobilski of Clay.
Auxier petitioned the Supreme Court of Appeals to reverse Alsop's order.
Last May, while Auxier waited for the Justices to decide whether to hear his appeal, Alsop signed a permanent injunction preventing Auxier from restricting travel, bulldozing, expanding the road or harassing neighbors.
Auxier appealed that order.
The Justices elected to hear his appeal on contempt but not his appeal on the injunction.
In their unsigned opinion reversing the contempt order, they wrote that a court must mail a hearing notice nine days before a hearing unless a judge fixes another period.
"The notice of hearing was mailed three days prior to the scheduled hearing, and there is no indication that a reduced time period was explicitly set forth by the lower court," they wrote, adding that the purpose of the notice requirement is "to prevent a party from being prejudicially surprised by a motion."
They quoted a 1974 decision finding that when a court deprives a party of an opportunity to prepare for a hearing, the court denies due process and exceeds its jurisdiction.
They ordered a refund of any money Auxier paid to Novobilski and wrote that it was within Alsop's discretion to hold another contempt hearing.
They did not give Auxier a free hand on Payne Hollow Road. They wrote that he should address any allegations of inadequate maintenance or improper action to the highway department.
"A citizen's remedy lies in the public domain, rather than in undertaking to alter the road by private means," they wrote.