|Thomas Auxier of Indore, Clay County, 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 that Auxier did not receive proper notice of a hearing that Judge Alsop held.
Auxier, representing himself before the high court, succeeded with his presentment.
Auxier had experience in speaking out.
He had been in a long dispute with the West Virginia Department of Highways over the proper width and maintenance of Payne Hollow Road.
In 2005, he reportedly 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 Judge Alsop to order Auxier to remove the fence. Alsop granted the order.
Angry, Auxier reportedly toppled the fence posts, leaving the posts and wire along the road.
Neighbor Billy Truman asked Judge Alsop to hold Auxier in contempt of the order to remove the fence.
Judge Alsop set a hearing Nov. 10, 2005,
mailing the notice to Auxier on Nov. 7.
Auxier did not appear at the hearing.
On Nov. 12, Auxier went to the Indore post office and picked up several days worth of mail and found the hearing notice.
Judge Alsop found Auxier in contempt and ordered him to pay $300 to Truman's attorney, Jerome Novobilski of Clay.
Auxier then petitioned the Supreme Court of Appeals to reverse Judge Alsop's order.
In May, 2006, while Auxier waited for the Supreme Court to decide whether to hear his appeal, the judge 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 the Supreme Court's 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 court 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.
The high court ordered a refund of any money Auxier paid to Novobilski.
Alsop could 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.
Concerning Auxier's methods along his rural road, the court said "A citizen's remedy lies in the public domain, rather than in undertaking to alter the road by private means."