As coercion tools go, civil contempt is one of the most effective. The prospect of doing time down at the local jail is enough to convince most people to obey the court. But every now and then a judge runs up against a litigant who is beyond persuading.
Superior Court Judge Jack W. Jenkins is butting heads with two such individuals at the moment. They are Melvin Davis and Licurtis Reels, brothers who refuse to bow to a court order requiring them to relinquish bucolic waterfront land near Beaufort, N.C., that has been in their family for more than a century.
The Morehead City, N.C., judge held the pair in civil contempt in March 2011. They have been incarcerated ever since, spending the past three years in jail, and they show no signs of acquiescing. It appears to be a record length for civil contempt jail time in North Carolina, but it doesn’t come close to the record of 14 years held by a Pennsylvania man.
“They are steadfast,” said L. Lamar Armstrong Jr., a Smithfield lawyer who represents an investment group called Adams Creek Associates that, according to rulings from both state and federal trial and appellate courts, rightfully owns the property at the heart of the dispute. His clients have shelled out more money fighting Davis and Reels in court than they paid for the land, which they have been unable to develop because of the ongoing legal battle that stretches back 11 years.
Under North Carolina law, a person can be held in civil contempt indefinitely and without further hearings on the matter for refusing to perform an act that does not require monetary payment, or if the person will not pay child support.
Armstrong says that Davis and Reels have repeatedly made it clear to the court that while they have the ability to comply with Jenkins’ order and move or demolish their homes, sheds and other structures sitting on the land, they simply will not.
“They have the keys in their pocket to get out of jail and they refuse to use those keys,” he added. “I guess they’ll just stay locked up forever.”
‘A fine line’
Three years is an unusually long time to spend in jail without being charged with a crime. A lawyer who has been helping Davis and Reels, Terry B. Richardson of Wilmington, calls their case “one of the most atrocious human rights violations of a generation.” But one man, an attorney no less, was held on civil contempt for far longer.
H. Beatty Chadwick had been behind bars for 14 years when a Pennsylvania trial judge finally threw up his hands in 2009 and admitted that it was futile to keep him jailed another day. Chadwick paid a considerable price, but he proved that contrary to the classic song some people fight the law and actually win.
The court believed that Chadwick was hiding millions of dollars in overseas bank accounts to keep his ex-wife from getting her hands on the money during their divorce. He maintained that he lost the cash in bad investments, making it impossible for him to allow the court to access the accounts, as a judge had requested. He never complied with the court.
“The purpose of civil contempt is coercion, not punishment,” said Chadwick’s attorney, Michael J. Malloy of Media, Pa. “Once it becomes obvious that it’s no longer working, that it’s lost its effect, it becomes ridiculous. Once you get to that point you can’t hold them anymore.”
He added, “That’s a fine line for a judge, making that decision.”
Howard B. Stravitz, an associate professor at the University of South Carolina School of Law in Columbia, where he teaches civil procedure, echoed Malloy in saying that if the brothers remain defiant the court eventually will have to blink.
“I think at some point the court’s going to let them go,” he said “That’s ridiculous, three years. You can’t keep them in jail forever.”
The turning point in Chadwick’s case occurred when he convinced the court to let a new trial judge take a fresh look at the contempt finding, according to Malloy. Before then, he said the standoff between Chadwick and the first judge had become a “mano a mano thing.”
“It should never go back to the original judge,” Malloy said.
Other courts have considered Davis’ and Reels’ case, but so far all the judges have deferred to Jenkins on his initial contempt finding, determining that he alone has discretion to lift the order. Jenkins declined to discuss the matter.
‘Beginning of the end’
One glaring difference between Chadwick’s situation and that of Davis and Reels does not bode well for the brothers. Chadwick contended that he could not satisfy the court’s order even if he wanted to cooperate, while Davis and Reels have taken an entirely opposite stance.
William T. Graham, a former Superior Court judge who serves on the board of directors for the North Carolina Institute for Constitutional Law, said the pair’s rights are not being violated because their imprisonment is voluntary.
“At this point, I don’t see any constitutional law problem,” he said. “If the court properly tells you to do something, how else can the court enforce its order other than finding you in contempt?”
Graham, who was taken aback by the unique situation, added, “There are some stubborn people in this world, but have you ever spent time in a local jail? My son is a District Court judge and he says that’s the hardest time you can do. … It sounds like somebody needs to talk some sense into somebody.”
Richardson, the brothers’ attorney, contends that the two have been jailed because the court wrongly characterized the case as a trespass action when, in reality, Davis and Reels have been ejected from their land.
“This case is so simple that it is the difference between trespass and ejectment,” he said. “If the court would treat this as an ejectment, this would be over.”
The difficulty, though, is that all three sides have reached a stalemate. The investors have spent too much time and money to back down now. Davis and Reels obviously do not want to walk away from their ancestral land. And what precedent would the court set if it were to admit defeat and free the brothers because they waited out the system?
“You won’t want to see the state saying, ‘I ordered you to do this and you won’t so I give up.’ That’s the beginning of the end when that happens,” said Lee S. Rosen, a Raleigh divorce lawyer who often deals with civil contempt in the context of unpaid child support.
J. Michael Crowell, a professor of public and governmental law at the University of North Carolina School of Government in Chapel Hill, said the court could look for alternatives to jailing Davis and Reels.
But he added, “I don’t know, in this particular case, what other alternatives there might be.”
Follow Phillip Bantz on Twitter @SCLWBantz