Strike three for brothers jailed seven years for civil contempt

Two brothers who have been jailed for nearly seven years for civil contempt have failed for the third time to convince the North Carolina Court of Appeals to set them free.

But the latest decision issued Jan. 16 includes a dissent that offers hope for Melvin Davis and Licurtis Reels, who refuse to comply with a court order to abandon their family land on the coast near Beaufort. The order requires them to remove buildings from the property and confirm in a written agreement that they will never return to the land.

Davis, 69, and Reels, 59, have been jailed for civil contempt since March 2011, the longest anyone in the state has been held behind bars for defying a court order. They dispute the validity of court rulings that have concluded that a group of developers, Adams Creek Associates, owns the land in question.

Adams Creek’s attorney, Lamar Armstrong of Smithfield, had argued that releasing Davis and Reels while they continued to flout the court’s order would send a message that the “irrational and unreasonable refusal to comply with a multitude of judicial orders and rebuke to the entire legal system prevails over the rule of law.

“It means that coercion, which resides somewhere in the recesses of the minds of those like Reels and Davis being forced to do what they can and should do, mystically transmutes into punitive conduct by judges and the system simply by the passage of time,” Armstrong wrote in Adams Creek’s brief.

The brothers’ attorney, James Hairston of Raleigh, contended in the latest appeal that the intended coercive effect of jailing Davis and Reels for contempt has failed, rendering their continued incarceration punitive. Earlier appeals hinged on the assertion that Davis and Reels owned the land.

“Nothing has worked, thus there is no coercive effect from the order,” Hairston said in an interview. “These guys are going on seven years in jail. For the court to say the imprisonment for failure to comply with the court’s order is not punitive is ridiculous.”

Compliance is key, not cost

Judge Rick Elmore, who wrote the majority opinion, stressed that Davis and Reels have testified that even if they could comply with the court order they would not. Therefore, he found that it was unnecessary for the trial court to consider evidence that the brothers could not afford to raze the structures on the land, which would cost an estimated $46,000. Davis’ bank account contains about $100, and Reels’ bank account is nonexistent.

“We hold the trial court did not err in refusing to make futile findings on their alleged inability to comply with the prior order due to defendants’ outright refusals to purge their contempt,” Elmore wrote.

He added that under state law a person held in civil contempt “may be imprisoned as long as the civil contempt continues without further hearing.”

Finding that the brothers’ argument that their civil contempt had become punitive “misses the point,” he wrote that the “relevant consideration is not whether the purpose of an order can be served by continuing to punish a contemnor, but whether its purpose can still be served by compliance.”

King Arthur and the Black Knight

In her dissent, Judge Donna Stroud contended that the trial judge should have considered whether Davis and Reels could comply with the part of the order requiring them to bulldoze their buildings on the land, rather than closing the case based on the brothers’ refusal to sign a piece of paper.

“Logically, they must be able to comply with all of the provisions of the order, or they cannot comply with the order,” she wrote.  

Stroud suggested that the Adams Creek developers go ahead and clear the buildings themselves and move forward with their plans for the land, rather than waiting on Davis and Reels to act. And, similarly, she said the court should follow King Arthur’s “wise lead” in the movie “Monty Python and the Holy Grail” and “leave defendants behind.”

After losing his arms and legs in a sword fight with King Arthur, the Black Knight still stubbornly refuses to let King Arthur pass through the forest. “We’ll call it a draw,” King Arthur quips, before continuing on his way.

Stroud also noted that the yearly expense of keeping an inmate at the Carteret County jail, where Davis and Reels are housed, is $21,900. So far, the continued incarceration of Davis and Reels has cost taxpayers about $300,000. And that number is likely to snowball because Reels has diabetes and Davis fell down some stairs at the jail and now has a back injury.

“This simple property dispute has been transformed into a state-funded enforcement action for the benefit of the plaintiff,” Stroud wrote. “Plaintiff has incurred attorney fees for this matter for years, and I cannot fathom why plaintiff does not simply bulldoze the structures remaining on the property and proceed with whatever plans it may have.”

Armstrong, the developers’ attorney, said Stroud’s dissent overlooks the importance of the court’s order requiring Davis and Reels to agree to never return to the land. He added that clearing the property is “only a partial solution.”

“The dissent acts like it doesn’t matter if they don’t sign this” agreement to abandon the land, he said. “But it does matter.”

He added, “If we are ever going to have peace on the property, they and their extended family have to recognize that they don’t own it and won’t go on it. That’s not just symbolic. It’s the core of this.”

Stroud’s dissent gives Davis and Reels an automatic right of appeal — and Hairston was gearing up to take the case to the state Supreme Court.

“The most salient fact is that it ain’t worked,” he said. “And when it doesn’t work, the case law throughout the country is at some point clearly imprisonment is punitive.”

The 28-page decision is Adams Creek Associates v. Davis (Lawyers Weekly No. 011-011-18). An opinion digest is available at nclawyersweekly.com.

Follow Phillip Bantz on Twitter @NCLWBantz