United Mine Workers of America v. Faerber

MILLER, Justice:

In this case we are asked to determine whether a public official who has been adjudged in contempt of an order of this Court and has been ordered to pay a monetary fine is liable for the payment personally or in his official capacity. In United Mine Workers of America v. Faerber, 179 W.Va. 73, 365 S.E.2d 353 (1986), we found the respondent, Kenneth Faerber, the Commissioner of the Department of Energy, in civil contempt for his dilatory conduct in complying with an order of this Court. We imposed a compensatory fine, consisting principally of attorney’s fees incurred by the United Mine Workers of America (UMWA) in bringing and successfully prosecuting the contempt motion.¹ The UMWA subsequently filed a motion to hold the respondent Commissioner personally liable for the payment of the fine, rather than in his official capacity.

It is of some significance that in fashioning the contempt fine against the respondent, we pointed out that it was for civil contempt and concluded that it would be:

“[A] monetary fine in the nature of compensation or damages to the UMWA because of the respondent’s failure to comply with the order. In this case the UMWA suffered its costs and attorneys’ fees in bringing this action, and suffered the inconvenience of making an appearance before this Court, but no other real detriment. We, therefore, hold that the respondent must pay the UMWA’s costs and reasonable attorneys’ fees in bringing this action in contempt, and $100 compensatory damages.” 179 W.Va. at 77, 365 S.E.2d at 356. (Footnote omitted).

One of the more analogous cases is Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), which involved a federal district court order assessing attorney’s fees against the Department of Corrections of the State of Arkansas. Its corrections officials had been found to have acted in bad faith in failing to implement the district court’s order. This order had mandated corrective action in the Arkansas penal system because of unconstitutional prison conditions.

The United States Supreme Court was primarily concerned with the Eleventh Amendment bar of suits against the states. In order to avoid this bar, it concluded that the award was essentially a part of prospective relief and, therefore, appropriate under Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908). It went on to say: “In this case, the award of attorney’s fees for bad faith served the same purpose as a remedial fine imposed for civil contempt. It vindicated the District Court’s authority over a recalcitrant litigant.” 437 U.S. at 691, 98 S.Ct. at 2574, 57 L.Ed.2d at 534-35.

In Hutto, the Supreme Court had earlier stated “[n]or does he [appellant] question the settled rule that a losing litigant’s bad faith may justify an allowance of fees to the prevailing party.14” 437 U.S. at 689, 98 S.Ct. at 2573, 57 L.Ed.2d at 533. (Footnote reference included).² It also had made this comment: “If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance.” 437 U.S. at 691, 98 S.Ct. at 2573, 57 L.Ed.2d at 534.

Finally, in Hutto, the state suggested that the fees should be paid by the correction officials personally which the Supreme Court rejected in note 32, 437 U.S. at 699, 98 S.Ct. at 2578, 57 L.Ed.2d at 540:

“This is manifestly unfair when, as here, the individual officers have no personal interest in the conduct of the State’s litigation, and it defies this Court’s insistence in a related context that imposing personal liability in the absence of bad faith may cause state officers to ‘exercise their discretion with undue timidity.’ Wood v. Strickland, 420 U.S. 308, 321, 43 L.Ed.2d 214, [224], 95 S.Ct. 992 [1000 (1975)].”

Thus, it appears from Hutto that under a “bad faith” exception, attorney’s fees and costs may be awarded to the prevailing party and this extends to a civil contempt proceeding where attorney’s fees are awarded. We have come to much the same conclusion in Daily Gazette Co., Inc. v. Withrow, 177 W.Va. 110, 350 S.E.2d 738 (1986), where one of the issues was whether attorney’s fees could be collected in a successful suit under our State’s Freedom of Information Act, W.Va.Code, 29B-1-1, et seq. We concluded in Syllabus Point 6: “For a person prevailing in an action under the State’s Freedom of Information Act to recover reasonable attorney’s fees, the evidence before the trial court must show bad faith, vexatious, wanton or oppressive conduct on the part of the custodian of the public record(s).” However, under Hutto, when such an award is made against a public official, he ordinarily is not liable personally to pay the award. The Hutto rationale appears to have general acceptance.³ E.g., Jackson v. Whitman, 642 F.Supp. 816 (W.D.La.1986); Thomas v. City of Evanston, 636 F.Supp. 587 (N.D.Ill.1986); Sebastian v. Texas Dept. of Corrections, 558 F.Supp. 507 (S.D.Tex.1983); Halderman v. Pennhurst State School and Hospital, 533 F.Supp. 649 (E.D.Pa.1982); In re Orange County Publications v. County of Orange, 120 A.D.2d 596, 502 N.Y.S.2d 71 (1986); Town of Seymour v. City of Eau Claire, 112 Wis.2d 313, 332 N.W.2d 821 (Wis.App.1983).

Two courts have attempted to articulate what conduct beyond a bad faith standard must be shown in order to fasten personal liability on the official. Woolfolk v. Brown, 358 F.Supp. 524 (E.D.Va.1973), involved state welfare administrators in Virginia who were found in contempt of court for implementing new work rules for welfare recipients in violation of an injunction issued by the federal district court. The court refused to impose personal liability on the malfeasant state administrators, despite concluding that the defendants had willfully and without a reasonable belief in the correctness of their actions disobeyed and violated an injunction of the court. The court indicated that the imposition of personal liability would require “a strong showing of personal, wilfull misconduct to hold an administrator ... liable,” which it found had not been shown. 358 F.Supp. at 537.

In Class v. Norton, 505 F.2d 123 (2d Cir.1974), the Second Circuit reached a similar conclusion in a case involving the Connecticut Commissioner of Welfare. The district court in that case, although declining to hold the Commissioner in contempt for his alleged failure to comply with orders requiring timely processing of welfare assistance applications, found significant noncompliance with its prior orders and assessed a $1,000 fine against the commissioner in both his individual and official capacities to cover the appellees’ attorney’s fees and costs in bringing on the contempt charges. On appeal, the court reversed the lower court’s imposition of individual liability and stated:

“Proof of bad faith ordinarily suffices to justify an assessment of attorneys’ fees and costs against a defendant.... Where the defendant is insulated from liability by a qualified executive immunity of the scope witnessed here, however, ‘bad faith’ alone in the sense used here as illuminated by the facts found would not appear to be enough. In the absence of malice or a clear abuse of discretion, this punitive award does not lie against the Commissioner. Cf. Jordan v. Weaver, 472 F.2d 985, 999 (7th Cir.1973), rev’d on other grounds, sub nom. Edelman v. Jordan, 415 U.S. 615, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

“In the light of the court’s findings, this award against the appellant personally must be reversed. The court specifically declined to infer ‘willful disobedience’ of its prior order, [Class v. Norton] 376 F.Supp. [496] at 498 [D.C.Conn.1974] or any ‘deliberate design’ to nullify that order, id. at 500. In addition, ‘much of the failure of compliance’ could be attributed to insufficient clarification of department policies, id. at 501 — a lamentable state of affairs to be sure, but hardly the stuff of which a case for malice or abuse of discretion may be made.” 505 F.2d at 127-28.

In the initial mandamus proceeding, we did not set a specific time period within which the respondent was to comply with our direction to implement the rules and regulations. Prior to the contempt hearing, the respondent had issued the rules. Based on these factors, we stated in the contempt case that the respondent “did not openly defy the Court.” 179 W.Va. at 75, 365 S.E.2d at 355. That determination is controlling here and compels the conclusion that the imposition of personal liability is not warranted in the circumstances of this case.⁴

Accordingly, the UMWA’s motion to impose the attorney’s fee award personally upon the respondent, Commissioner Faer-ber, is denied.

Motion denied.

1 . The contempt case was an outgrowth of United Mine Workers of America v. Faerber, 179 W.Va. 65, 365 S.E.2d 345 (1986) where this Court granted a writ of mandamus requiring the respondent to enforce a statute that we held required "full roof bolting" in all underground coal mines utilizing auger-type continuous coal mining equipment.

2 . Note 14 of Hutto, 437 U.S. at 689, 98 S.Ct. at 2573, 57 L.Ed.2d at 533, states in material part:

“An equity court has the unquestioned power to award attorney’s fees against a party who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. Alyeska Pipeline Service Co. v. Wilderness Soc., 421 U.S. 240, 258-259, 44 L.Ed.2d 141, [154,] 95 S.Ct. 1612 [1622 (1975) ]; Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 54 L.Ed.2d 648, 98 S.Ct. 694 [ (1978) ]; Straub v. Vaisman & Co., Inc. 540 F.2d 591, 598-600 (CA3 1976).... The award vindicates judicial authority without resort to the more drastic sanctions available for contempt of court and makes the prevailing party whole for expenses caused by his opponent’s obstinacy. Cf. First Nat. Bank v. Dunham, 471 F.2d 712 (CA8 1973). Of course, fees can also be awarded as part of a civil contempt penalty. See, e.g., Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 67 L.Ed. 719, 43 S.Ct. 458 ([1923)]; Signal Delivery Service, Inc. v. Highway Truck Drivers, 68 F.R.D. 318 (ED Pa.1975).”

3 . The UMWA cites a number of decisions for the proposition that a public official who acts in "bad faith" can be held individually liable for costs and attorney’s fees. McNamara v. Moody, 606 F.2d 621 (5th Cir.1979); Universal Amusement Co., Inc. v. Vance, 559 F.2d 1286 (5th Cir.1977); Dillard v. Yeldell, 334 A.2d 578 (D.C.App.1975); Roesch-Zeller, Inc. v. Hollembeak, 5 Ill.App.2d 94, 124 N.E.2d 662 (1955); Elview Const. Co., Inc. v. North Scott Community School Dist., 373 N.W.2d 138 (Iowa 1985); Lehan v. Greigg, 257 Iowa 823, 135 N.W.2d 80 (1965); Ludwig v. Board of County Comm’rs of Sarpy County, 170 Neb. 600, 103 N.W.2d 838 (1960); Fowler v. Gillman, 76 Utah 414, 290 P. 358 (1930). Most of these cases arose in a markedly different context than is present here and generally involved a claim that a public official had acted to violate someone’s constitutional rights. Furthermore, in most of these cases, the public officials were not found to be liable for attorney’s fees in their personal capacity. Universal Amusement Co., Inc. v. Vance, supra; Dillard v. Yeldell, supra; Elview Const. Co., Inc. v. North Scott Community School Dist., supra; Lehan v. Greigg, supra; Ludwig v. Board of County Comm’rs of Sarpy County, supra; Fowler v. Gillman, supra. In McNamara, attorney’s fees were personally charged pursuant to the Attorney Fees Award Act of 1976, 42 U.S.C. § 1988, a provision which is inapplicable to our jurisdiction. Hollembeak also involved a statutory fee provision.

4 . Because we have decided the merits of the personal liability issue, we do not address the procedural issue. This involves the question of whether personal liability could be found when the original mandamus and the contempt proceeding were brought against the Commissioner only in his official capacity. See generally Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985).