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Abuse of Contempt Power
Judge John D. Potter Jasper Circuit Court
Judge questions DCS workers about paralyzed girl's gruesome death
Moores, the Marion Juvenile Court judge, also questioned the conduct of Carter, Rupert and the two Damar Services employees. She ordered all four officials to appear in court to determine whether she should hold them in contempt of court for filing false documents in Linda's case.
– Indianapolis Star, October 13, 2014
Contempt
• Contempt is an act or refusal to act in disobedience of a Court, arising from opposi5on to its authority, jus5ce or dignity. See Fishback v. State, 131 Ind. 304, 30 N.E. 1088 (1892).
• Contempt includes any act that pertains to a pending proceeding and tends to deter the Court from the performance of its du5es or to obstruct the administra5on of jus5ce. See Rice v. State, 858 N.E.2d 988 (Ind. Ct. App. 2006).
• Contempt can occur inside or outside the Courtroom. See T.R. 37(B)(1) • Contempt can also be sought by a party who has been injured or damaged
by the failure of another to comply or conform with a court order. See Aaron v. ScoR, 851 N.E.2d 309 (Ind. Ct. App. 2006), trans. denied 869 N.E.2d 446 (Ind. 2007).
Varie5es of Contempt
• There are three different kinds of two types of contempt.
1. Statutory Contempt vs. Inherent Powers 2. Criminal vs. Civil Contempt 3. Direct vs. Indirect Contempt
Inherent Power v. Statutory Power
• “The power to punish for contempt is inherent in all courts…it is as essen5al to the preserva5on of the existence of courts as is the natural right of self defense to preserva5on of human life…As it is a co-‐ordinate branch of government, and as judicial power can only be exercised in the courts it must follow that Courts possess inherent powers which they do not owe to the legislature, and among these is [the contempt power].” Holman v. State, 5 N.E. 556 (Ind. 1886); see also In re Contempt of Houston, 711 N.E.2d 33 (Ind. 1999).
• Contempt power is not limited by statutory defini5ons of contempt. See LiRle v. State, 90 Ind. 338 (Ind. 1883); Mahoney v. State, 72 N.E. 151 (Ind. 1904); LaGrange v. State, 153 N.E.2d 293 (Ind. 1958); Worthington v. State, 391 N.E.2d 1164 (Ind. Ct. App. 1979).
Criminal v. Civil Contempt • Has absolutely nothing to do with whether the case is a
criminal case or a civil case. • Has absolutely nothing to do with whether or not the
contumacious ac/ons could be charged as a crime. • Has absolutely nothing to do with whether the punishment
for the contempt is jail or fine or sanc5on in some other way, the contemnor.
• The dis5nc5on between the two types, criminal and civil contempt, is based upon the reason for the punishment for the contempt.
Criminal v. Civil Contempt • “Not the fact of punishment, but the character and purpose of punishment serve
to dis5nguish between civil and criminal [contempt] proceedings. Punishment for civil contempt is remedial and for the benefit of the complainant, whereas, for criminal contempt, it is puni5ve, to vindicate the authority of the Court. See Gompers v. Buck’s Stove & Range Company, 221 U.S. 4, 31 S.Ct. 492 55 L.Ed. 797 (1911).
• Classic Example of Civil Contempt—failure to pay child support—the remedy is remedial and for the benefit of the spouse who is complaining to the Court about non-‐payment.
• Classic Example of Criminal Contempt—calling the judge a “#$@!!? ass****” in open Court. The jail sentence is puni5ve, to vindicate the authority of the Court.
Direct v. Indirect Contempt
• This is the most important dis5nc5on to make and to know.
• Whether contempt is direct or indirect governs what type of procedure is used.
• Using the wrong procedure, direct for indirect contempt, is a common mistake made by lawyers and judges.
Direct v. Indirect Contempt
Just to confuse you a liRle more… Direct Contempt is always Criminal Contempt
Indirect Contempt may be Criminal Contempt or Civil Contempt. Remember: it depends on the purpose of the punishment for the contempt: is it remedial for the benefit of an aggrieved party or puni5ve to vindicate the dignity and authority of the Court?
Direct Contempt • Any conduct occurring in the presence and with the personal
knowledge of the judge, related to a current or pending proceeding which interferes with Court proceedings or business or tends to deter the Court from the performance of its du5es. In re Nasser, 644 N.E.2d 93 (Ind. 1994)
• Direct Contempt includes those ac5ons occurring in or near the Court, interfering with the business of the Court, of which the Court has personal knowledge. Warr v. State, 877 N.E.2d 817 (Ind. Ct. App. 2007).
Direct Contempt
How to iden5fy it? Like the Supreme Court defini5on of “hard core pornography” given by Jus5ce PoRer Stewart…….. You will know it when you see it.
Basically, if you see, hear, feel or, God forbid, taste or smell it—it is Direct Contempt.
Direct Contempt Direct Contempt must be dealt with immediately and summarily
when it happens. Ind. Code § 34-‐47-‐2-‐4 outlines the basic procedure to follow. It is important not to wait too long, or else you have to follow
the indirect contempt procedures. 5 minutes to gather composure, okay. Wai5ng un5l the end of the case or call, overturned! Too long.
Direct Contempt • Examples of Direct Contempt
– Disrespecsul conduct in Court Redman v. State, 28 Ind. 205 (1867) – Refusal to tes5fy or take the witness stand. Ind. Code § 34-‐47-‐2-‐2 – Crea5on of noise and confusion in the Courtroom Ind. Code §
34-‐47-‐2-‐1 – Failure of an aRorney to appear Cur5s v. State, 625 N.E.2d 496 (Ind.
Ct. App. 1993) – In5mida5ng a witness in the Courtroom Ind. Code § 34-‐47-‐2-‐3 – The manner of expression of a remark, if it is rude insolent or
disrespecsul. Russell v. State, 428 N.E.2d 1271 (Ind. Ct. App. 1981), State ex re. Stanton v. Murray, 108 N.E.2d 251 (Ind. 1952)
Direct Contempt • But, there are limits…
– Contempt will not lie to soothe the wounded sensibili5es of the Judge. Grimm v. State, 162 N.E.2d 454 (Ind. 1959).
– Punishment limited by reasonableness. Can be a sentence or a fine. Less than 6 months (180 days) has been held to be reasonable.
– There is a right to appeal. Ind. Code § 34-‐47-‐3-‐1 – A sentence longer than 180 days might require a jury trial. See Garrigus v. State ex rel. Moreland, 93 Ind. 239 (1884).
Indirect Contempt
• There are two types… – Indirect Criminal Contempt – Indirect Civil Contempt
• Indirect Contempt, in general, requires no5ce, in the form of a rule to show cause, opportunity to be heard, and in some cases the appointment of a special judge.
• The goal of this sec5on is to help you iden5fy indirect contempt and proceed correctly.
Indirect Contempt
• Indirect Civil Contempt – Very easy to iden5fy—it is filed by a party asking for a rule to show cause because another party is not following an order.
– Mo5on or applica5on must be verified and state the par5cular circumstances of the order that was violated.
– The purpose is to obtain relief for the aggrieved party – The Judge does not have to recuse himself because it grows out of willfully resis5ng, hindering, delaying or disobeying and lawful process or order of the Court. Ind. Code § 34-‐47-‐3-‐7.
Indirect Contempt
Indirect Civil Contempt -‐ Burden of proof on complaining party -‐ There are defenses and jus5fiable excuses -‐ Due process rights to a hearing, and right to answer the charge, and a right to counsel if indigent and facing jail -‐ Contempt will lie for willful failure to comply with an order or not reasonably diligent in complying. -‐ Remedy can be jail, money judgment or other -‐ Purge opportunity must be given!!!!!!!!!!!!!!!!!!!
Indirect Contempt • Indirect Civil Contempt examples:
– Child support order and arrearages. Branum v. State, 829 N.E.2d 622 (Ind. Ct. App. 2005)
– Order for specific performance. Meyer v. Wolvos, 707 N.E.2d 1029 (Ind. Ct. App. 1999).
– Order to pay costs of paternity tes5ng. Allee v. State, 462 N.E.2d 1074 (Ind. Ct. App. 1984).
– Transfer of property between par5es. Thompson v. Thompson, 458 N.E.2d 298 (Ind. Ct. App. 1984).
– Order to pay money to a Clerk or Court officer. Vanderkooi v. Echelbarger, 235 N.E.2d 165
Indirect Contempt
• Indirect Criminal Contempt – This is the trickiest to iden5fy and requires the trickiest procedures.
– Procedures and examples can be found at Ind. Code § 34-‐47-‐3 et seq.
– Remember: The purpose of indirect criminal contempt is to punish and to vindicate the authority of the Court.
– Seminal Indiana Case: In re Perello, 291 N.E.2d 698 (Ind. 1973).
Indirect Contempt
• Indirect Criminal Contempt examples: – Disobedience of process or order. Ind. Code § 34-‐47-‐3-‐1
– Interference with execu5on of process or order. Ind. Code § 34-‐47-‐3-‐2
– Influencing tes5mony or threatening a witness. Ind. Code § 34-‐47-‐3-‐3
– Making a false or inaccurate report of a case. Ind. Code § 34-‐47-‐3-‐4
Indirect Contempt • Indirect Criminal Contempt procedures:
– Ini5ated as an independent ac5on in the name of the State within a reasonable 5me axer the ac5on by informa5on
– No5ce served on the person – Due process rights to a hearing and right to be heard – Judge must recuse unless the conduct grows out of willfully resis5ng, hindering, delaying or disobeying and lawful process or order of the Court. Ind. Code § 34-‐47-‐3-‐7.
– Verified answer may be filed – Appointed counsel if indigent and facing jail 5me.
Indirect Contempt “Ini5ated as an independent ac5on in the name of the State within a reasonable 5me axer the ac5on by informa5on”…. What does this mean?
In re Perrello sheds light on this issue. Informa5on does not mean a formal criminal informa5on like a charging affidavit.
Must show 5me and place of the ac5ons and a clear and succinct statement of the facts cons5tu5ng the alleged contempt. -‐ Court’s order and findings, sealed and signed by Judge might be enough, but beRer prac5ce may require verifica5on.
Indirect Contempt
• Independent ac5on in the name of the state—who brings or prosecutes the ac5on.
• Easy answer: Whomever you appoint. – In Perrello, the Supreme Court appointed officials of the State to prosecute the ac5on– the Disciplinary Commission.
-‐ Probably means the Prosecu5ng ARorney because no private party is allowed as prosecutor in criminal contempt. Allison v. State ex rel. Allison, 187 N.E.2d 565 (Ind. 1963).
QUIZ
Failure to Appear at a Criminal Hearing
Defendant is picked up on a warrant and brought to Court and the Court sentences him sua sponte for 20 days for Contempt for failing to appear.
QUIZ
CHINS mom uses drugs…
Mom appears at the next review hearing where the drug test failures are part of the report. Judge orders her to jail for contempt for 30 days because she was ordered to remain drug free as part of the case plan and did not.
Abuse of the Contempt Power
• There are two types of “abuse”
– Abuse of Discre5on = overturned
– Abuse of contempt power
= In re Judge DodoHead , 999 N.E.2d 346 (Ind. 2387), rehearing denied, involuntary vaca/on ordered.
Complain about abuse of contempt and you are in good company…
In 1697 there were complaints about “Great Disorders and Irregularrytes of Proceedings” about a man punished for failing to take his hat off in court*, about orders that no person whatsoever “either Wi{ngly or willingly” was to “presume to piss against any of the walls, Posts or Railes or within the outside railes of the State house.” Friedman, Lawrence M., A History of American Law, 3rd Ed., Simon & Schuster, 2005.
* Court of Hus5ngs and Pie Powder in St. Anne and Annapolis
WARNING! Ethics Content
• The types of abuse that get Judges into trouble: – Being abusive – Viola5ng the “jerk rule”* yourself -‐ Jerks don’t win – Misusing judicial power for improper means – Messing with people’s Cons5tu5onal rights – Extreme stupidity – Being a bully—throwing you weight around because you can, etc.
– Using contempt to hide other illegal/unethical conduct
Indiana Cases • In re Johnson, 658 N.E.2d 589 (Ind. 1995)
ARorney and prosecutor agree to change proba5on revoca5on hearing from Dec. 4 to Dec. 6 because aRorney had a conflict. 10 days later another prosecutor made an ex parte request to re-‐set the hearing for Dec. 6. On Dec. 4, the aRorney learned of the change and called the Court which told him without a proper con5nuance mo5on, the aRorney would be held in contempt for not appearing. ARorney filed the mo5on. Judge denied it.
ARorney did not appear at hearing or date set for contempt and was arrested. He was brought before the court in orange to address his contempt and his client’s case who was also there.
Held: violated ex parte, and courteous, pa5ent Canons.
Indiana Cases
• In re Cox, 680 N.E.2d 528 (Ind. 1997) – Defendant, without counsel, appeared for bench trial. ARorney contacted the court about a con5nuance but did not enter appearance. Defendant stated she wanted representa5on and did not want to go forward with trial.
– Court gave her two op5ons: proceed with trial or exercise right to counsel and possible be held in contempt. She chose immediate trial.
– Held: misrepresented law and forced to choose between rights and contempt proceedings. 30 days.
More sample cases from other states • In re Espinosa, California Commission on Judicial Performance, February 9,
2006. – Judge Espinosa cut off defense aRorney’s sentencing argument axer one minute and
interrupted to ask aRorney about credit 5me. Axer aRorney agreed to credit 5me, the Judge sentenced the defendant. ARorney objected, but judge said, “I’ve made up my mind. I’m not going to listen—one more peep out of you and you’re in contempt of court.” Counsel, axer sentencing tried to preserve the record and was found in contempt and fined $50.00. Counsel demanded a hearing—more contempt, $250.00. Counsel asked for a hearing. 5 days in jail
In re AlbriRon, 940 So.2d 1083 (Fla. 2006) Judge AlbriRon asks parents if they are on drugs. They say, “no.” He orders an immediate drug test. When they fail, he holds them in contempt and jails them
In re Cresap, 940 So.2d 1083 (La. 2006) Judge Cresap held an aRorney in contempt four 5mes for failing to answer a ques5on that would have violated the aRorney-‐client privilege
In re Ruma, Mass. Comm. On Judicial Conduct, April 13, 2006 19 year old, got up, lex Court, while wai5ng for her case to be called and created no disturbance. J. Ruma held her in summary direct contempt and jailed her
Illinoying….
Man jailed for yawning in court Published: Aug. 10, 2009 at 2:25 PM
JOLIET, Ill., Aug. 10 (UPI) -‐-‐ An Illinois man received a six-‐month contempt of court jail
sentence for le{ng out a yawn as the judge was sentencing his cousin. Clixon Williams, 33, was at the fourth-‐floor courtroom at the Will County Courthouse in Joliet when he yawned audibly while Circuit Judge Daniel Rozak was sentencing his cousin to 2 years' proba5on on felony drug charges, the Chicago Tribune reported Monday.
Abuse of Discre5on
Abuse of discre5on in contempt proceedings resul5ng in reversal generally happens in these categories:
1. Failure to follow statutory procedures 2. Failure to give a full opportunity to be heard 3. Punishment for contempt is too severe or not
designed to have a coercive effect 4. Conduct is not contemptuous
Indiana Cases • In re Contempt of Wabash Valley, 827 N.E.2d 50 (Ind. Ct. App.
2005) – Trial court’s decision to decline to hear tes5mony from hospital
administrators about why they refused to comply with court order deprived them of due process before they were jailed for contempt. Overturned, remanded for a hearing.
Troyer v. Troyer, 867 N.E.2d 216 (Ind. Ct. App. 2007) Angry phone calls by wife to court staff days axer order was entered was not direct contempt.
In re Paternity of M.P.M.W., 908 N.E.2d 1205 (Ind. Ct. App. 2009) Two year sentence suspended on condi5on mom not violate any further orders is puni5ve and not coercive.
The Marion County Problem…
Hamilton
Hancock
Shelby
Johnson Morgan
Hendricks
Boone
Marion (Indianapolis) Marion (Indy)
Madison
In 2009 Marion County was sued over its use of bench warrants in contempt cases which led to….
• Ind. Code §31-‐16-‐12-‐6.5 “The Court may order a party who is alleged to be in contempt of court
under this sec5on to show cause why the party should not be held in contempt for viola5ng and order for support. The order to show cause must set forth: (1) the contempt allega5ons; (2) the failure to pay child support allega5ons; (3) when the court issued the order for support;* (4) the party’s history of child support payments;* (5) the specific date and 5me when and place where the party is required to show cause in the court; and (6) the party’s arrearage.*
Ind. Code § 31-‐16-‐12-‐6.5 • If a party fails to respond to an order to show cause…the court may issue
a bench warrant for the party to be arrested and brought to the court to respond to the rule to show cause.
• The court must determine an escrow that a party ordered to show cause…is required to deposit with the clerk…before the hearing to show cause.
• If the arrearage is more than $500.00, then the escrow amount must be between $500 and 100% of the arrearage. If less than $500, then the escrow must be the amount owed.
• The party remains in jail unless he pays the escrow. • The escrow can be used to pay arrearages, costs or distributed pursuant
to state and federal child support distribu5on laws • There is language for clerk and jail receipts in the statute • If the party cannot pay escrow and is in jail, he has a right to a hearing
within 48 hours, or the Court can review the escrow.
Were the new code sec5ons necessary?
• Maybe, but every “maybe” have wife called “maybe not.” • Ind. Code § 34-‐47-‐4-‐2 reads as follows:
– “For the purpose of procuring personal jurisdic5on over a person who has allegedly violated a court order or who is otherwise in contempt of court, the court may issue a writ of aRachment of the body of the person.”
– The statute also requires bail or escrow to be fixed by the Court. – Requires the Clerk to account for it, and to issue a receipt – Fixes bail at not more than the delinquent support owed. – Allows the sheriff to release a person who pays the bail or escrow. If this sounds similar to Ind. Code 31-‐14-‐12-‐6.5, that’s because it is.
Were the new code sec5ons necessary?
• Probably not because of inherent powers.
• “Circuit courts are vested with all the common-‐law powers of a court of general jurisdic5on, not locally inapplicable and inconsistent with Indiana’s form of government.” Board of Commissioners of White County v. Gwin, 36 N.E. 237 (Ind. 1894).
• You would be hard pressed to find any authority on common law court powers that would deny a common law court the authority to bring someone before it accused of viola5ng one of its orders.
Were the new code sec5ons necessary?
• Probably not because of case law and another statue.
• “If the defendant [in indirect contempt proceedings]: (1) fails to appear in court at the 5me and place specified in the rule to show cause, to answer the rule; or (2) appears in court but fails or refuses to answer…the court may proceed at once, and without any further delay, to aRach and punish the defendant for contempt.” See Ind. Code § 34-‐47-‐3-‐6 and Levick v. State, 69 N.E.2d 597 (Ind. 1946), ci5ng Oakland Coal Co. v. Wilson, 149 N.E. 54 (Ind. 1925), holding that this code sec5on is “declaratory” of the common law.
BeRer prac5ce….? • When the respondent fails to appear for a rule to show cause for failure to pay child support: – Check for good service, – If service is good, proceed, without any further delay, with the hearing. (You have a code cite, plus decades (centuries) of case law on your side about not complaining of the result if you do not show up for Court)
– Find him in contempt—issue a writ of aRachment* *Sentence for contempt now or later? Either way, but Court has to bring
Respondent to Court when picked up and inform him of why he is being held and the sentence and give chance to purge.
Perjury and Contempt • Perjury is not generally contempt even though it is contemp5ble; it is not
contumacious.
• There must be perjury plus something else…a disturbance of the court proceedings.
• Hegelaw v. State, 155 N.E.620 (Oh. App.) has a 3 part test:
1. The alleged false answers had an obstruc5ve effect; 2. There existed “judicial knowledge” of the falsity of the tes5mony; and 3. The ques5on was per5nent to the issue.
Split of Authority Warning ! Is the use of more Court 5me (because more witnesses had to
be called, etc.,) due to perjury one witness a disturbance to support contempt?
No: State v. Meese, 229 N.W. 31 (Wisc. 1930). Yes: Handler v. Gordon, 140 P.2d 622 (Colo. 1943). Indiana: No case I could find, but I hope so…
Handler v. Gordon
• Colo. Sup. Ct. quotes Jus5ce Cardozo: – “Perjury by a witness has been thought not to be enough where the
obstruc5on to judicial power is only that inherent in the wrong of tes5fying falsely.” Clark v. U.S., 289 U.S. 1
– The passage ci5ng Cardozo cites Jus5ce Oliver Wendell Holmes: “[it is beRer]…to leave the punishment of this class of contempts to regular, formal criminal process.” (i.e. Perjury), Gompers v. U.S., 233 U.S. 604.
– Holmes cited English authori5es and the Colorado Sup. Ct. addressed those quo5ng from Blackstone’s Commentaries, Book 4, Chapter XX, pages 280 and 281.
Indiana Cases In the MaRer of Guardianship of C.M.W., 755 N.E.2d 644 (Ind. Ct. App. 2001) -‐ Court
of Appeals determined that a grandfather did not commit direct contempt when he made misrepresenta5ons in his pe55on for emergency guardianship of his grandson, even though grandfather's ac5ons might have been unethical, malicious or perjurious; misleading nature of grandfather's statements was not evidence of contempt un5l the trial court heard the tes5mony of other witnesses, and grandfather did not cause a disrup5on or disturbance of the proceedings.
In re Marriage of Neiswinger, 477 N.E.2d 257, 260 (Ind. 1985) -‐ Supreme Court held that giving false tes5mony, the falsity of which could not have been known but only inferred by reference to later tes5mony and which causes no disturbance or disrup5on to the proceedings does not warrant a summary convic5on and, therefore, is not a direct contempt.
Contempt and Debt Collection “All forms of contempt are generally unavailable to enforce an
obligation to pay money, since such obligations may be enforced through execution.” Cowart v. White, 711 N.E.2d 523 (Ind. 1999), r’hrg granted, 716 N.E.2d 401
“Because parties may enforce obligations to pay a fixed sum of
money through execution, all forms of contempt are generally unavailable to enforce and obligation to pay money.” Carter v. Grace Whitney Properties, 939 N.E.2d 630 (Ind. Ct. App. 2010).
Contempt and Debt Collection What do those quotes really mean? Carter is the really good case. You cannot hold someone in
contempt for failing to make a court ordered payment, even if it was an agreed order, on an obligation of money owed.
You cannot continually return the debtor to Court on a T.R. 69 Proceedings Supplemental or statutory execution as a club to beat payment or settlement of claims from a debtor.
Contempt and Debt Collection NORMAL PROCESS: Judgment
Pro Supp FTA RTSC FTA Body Attachment with bond.
Contempt is for failure to appear when ordered and the
“warrant” is for failure to appear for the RTSC. Contempt must be deliberate and intentional. (Jail, forgot,
etc.) Sentence must be reasonable.
