1

REMEDIAL AND PUNITIVE SANCTIONS FOR CONTEMPT

By

The Honorable Raymond Satter1

A. Introduction

Rule 107 of the Colorado Rules of Civil Procedure was amended by the Colorado

Supreme Court, effective April 1, 1995. Rule 407, C.R.C.P. applies to county court proceedings;

it is identical to Rule 107. These are the only rules that govern contempt in Colorado. There is

no corresponding rule in the rules of criminal procedure. The new rule now clearly defines and

discusses forms of contempt, and remedial and punitive sanctions for contempt, in a manner that

emulates recent Colorado appellate decisions. The new rule differentiates between contempt in

the presence of the court and that which occurs out of the hearing or sight of the court, sets forth

separate sanctions depending on the purpose to be served, and outlines different types of

proceedings depending on where the contempt occurs.

B. Source and Description of the Power of Contempt

In general, the power of contempt is limited to maintenance of order in court,

enforcement of court orders and control (punishment) over acts which are committed either in

court or out-of-court which tend to obstruct the administration of justice. The power to punish

for contempt is an inherent power of the court and finds its source in the common law:

The power to punish for contempt, as a punitive measure or to coerce obedience, is an

inherent and indispensable power of the courts. Such power 'is not derived from the

Legislature and cannot be made to depend upon the legislative will.' Intrinsic in tribunals

following the common law, such as ours, is the right to protect themselves against insults

and indignities, interference with the administration of justice, and disobedience of their

orders.2

Contempt is now defined by Rule 107(a)(1) as:

Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent

disturbance toward the court, or conduct that unreasonably interrupts the due course of

judicial proceedings; behavior that obstructs the administration of justice; disobedience

or resistance by any person to or interference with any lawful writ, process, or order of the

court; or any other act or omission designated as contempt by the statutes or these rules.

1 The Honorable Raymond Satter is a judge with the Denver County Court. 2008 by Raymond N. Satter. All

rights reserved. 2 Austin v. City and County of Denver, 156 Colo. 180, 397 P.2d 743, 745 (1964) citing People ex rel. A.G. v. News–

Times Pub. Co., 35 Colo. 253, 84 P. 912 (1906). See People v. Razatos, 699 P.2d 970 (Colo.1985); People v.

Barron, 677 P.2d 1370 (Colo.1984); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); Board of County

Commissioners of Weld County v. In re Nineteenth Judicial District, 895 P.2d 545, 19 BTR 887 (Colo.1995). For

further discussion of contempt as an inherent power of the courts, see ABA Standards for Criminal Justice, The

Function of the Trial Judge, 6–1.1. Contempt is not a crime. See Benninghoven v. Dees, 849 P.2d 906

(Colo.App.1993).

2

"Court" is now defined by Rule 107(a)(6) as:

[A]ny judge, magistrate, commissioner, referee, or a master while performing official

duties."

This includes judges conducting settlement conferences.3

Obviously, included in this definition of "court" is the justices of the Colorado Supreme

Court, who can issue citations for failure to comply with their orders, including those brought by

the presiding disciplinary judge in attorney discipline cases. See In re Boyer, 988 P.2d 625

(Colo.1999). Although jurisdiction is always a prerequisite for a court to exercise its inherent

powers, jurisdiction is pretty much presumed in contempt matters. See Levin v. Anouna, 990 P.2d

1136 (Colo.App.1999).

For a useful discussion of the circumstances under which a juror may be held in contempt

for failure to fully answer questions posed during voir dire, as well as what type of evidence will

be considered in connection with such a case, see People v. Kriho,. 996 P.2d 158 (Colo.App.),

reh. denied Sept. 2, 1999, cert. denied March 20, 2000. In Kriho, the court held that a knowing

and willful concealment of relevant information by a prospective juror may be an obstruction of

the judicial process (and contemptuous) if it hinders the court's ability to provide a defendant

with a fair and impartial jury. However, the court cautioned against the use of contempt

proceedings to address such issues, and noted the rare circumstances in which they had and

should be used. The case also includes a detailed discussion of the importance of maintaining

jury deliberation secrecy.

C. What Contempt Is Not

There are other types of misconduct or inappropriate behavior which occur in a judicial

setting which are not necessarily contempt, but which are sometimes thought as contemptuous by

trial courts, such as unprofessional conduct by an attorney, or violation of the Colorado Rules of

Professional Conduct.4 In Hill v. Boatright,5 the direct contempt sanction imposed by the trial

court was reversed, since the conduct was in essence an ethical violation.6

Some refusals to comply with court orders are protected by the doctrine of separation of

powers, where an executive agency would be preempted from exercising powers within its own

sphere. White v. Adamek, 907 P.2d 735, 738 (Colo.App.1995). See also State of Colorado

3 Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902 (Colo.1992). 4 See Rule 241, C.R.C.P., the Colorado Rules of Procedure Regarding Lawyer Discipline. rule 241(1)(b) vests

disciplinary and disability jurisdiction exclusively with the Colorado Supreme Court. 5 .Hill v. Boatright, 890 P.2d 180 (Colo.App.1994), affirmed in part and reversed in part on other grounds, 919

P.2d 221 (Colo.1996). Cf. People v. Holmes, 967 P.2d 192 (Colo.App.1998) (direct contempt finding (in order to

punish attorney-litigant for his foul language directed at prosecutor but heard by judge) was not abuse of

discretion).. 6 In Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902 (Colo.1992), the district court's imposition of sanctions for

the failure of the defense attorneys to participate in a settlement conference in good faith was vacated.

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Department of Corrections v. Pena, 911 P.2d 48, 56 (Colo.1996),where the Colorado Supreme

Court held a district court could only find the executive director of the department of institutions

in contempt for failing to take a state-sentenced prisoner if there was space available, and could

not be held in contempt for refusal to do that which he or she was unable to do.

D. Differentiating Contempt and Sanctions

To discuss contempt, it is necessary to speak in terms of the following four words, and

their respective effects:

1. DIRECT AND INDIRECT: dictates type of procedure.

2. PUNITIVE AND REMEDIAL (formerly criminal and civil): dictates type of sanction.

These four words encompass and summarize all there is to know with regard to the subject of

contempt The first set of words are utilized in determining which type of procedure must be

followed in seeking to impose a particular penalty for contempt. The second set of words are

utilized in determining the type of sanction, punishment or order of compliance to be imposed.

E. Direct and Indirect Contempt Defined

DIRECT CONTEMPT. Rule 107(a)(2) defines Direct Contempt as: "Contempt that the

court has seen or heard and is so extreme that no warning is necessary or that has been repeated

despite the court's warning to desist." This is contempt which is committed IN the judge's

presence.

The key element, for procedural purposes, is "in the presence" of the judge. If this

element is missing, the contempt is indirect, and may not be dealt with summarily. In Losavio v.

District Court,7 a district attorney was held in summary contempt for remaking to a defendant,

"I'll bet you're glad that he's [the judge] in your corner." The judge did not personally hear the

remark, but the defendant who did snitched off the D.A. Fifteen days in jail for the D.A., and no

stay! However, since the judge did not have personal knowledge of the remark, a hearing was

required, and the case was reversed. In People v. Ganatta,8 another district attorney (same town,

different D.A.) informed the judge that granting a delay during a trial to a defense attorney would

cause him to be forced to further delay the court because he could not alter the order of his

witnesses. The judge tolerated the D.A.'s delay on this representation. Subsequently, the D.A.

altered the order of his witnesses anyway, and the judge felt that the D.A. had deliberately misled

the court. The D.A. was held in summary contempt, but the Court of Appeals reversed: "[E]ven

if the contemptuous conduct occurs in the presence of the court, if there are circumstances which

have occurred out of the presence of the court that may constitute a lawful justification for the

contemptuous behavior, a hearing, conforming to the requirements of due process is required."

(emphasis added).

7 182 Colo. 186, 512 P.2d 264 (1973). 8 622 P.2d 107 (Colo.App.1980).

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INDIRECT CONTEMPT. Rule 107(a)(3) defines Indirect Contempt as: "Contempt that

occurs out of the direct sight or hearing of the court." In other words, everything else that the

court has not personally seen or heard is indirect contempt.

To constitute a direct contempt, the conduct must take place in, or immediately adjacent

to, the courtroom while the court is in session so that the judge has personal knowledge (i.e. saw

it, heard it; no circumstantial evidence here!) in his or her official capacity. Indirect contempt is

defined as everything which is not direct contempt. The judge didn't see it, the judge didn't hear

it. If a contempt is direct contempt, it may be punished by the court summarily, with little or no

hearing. If a contempt is indirect, it may not be punished summarily, and the contemnor has

certain essential rights to hearing and due process.9

Example: failure to appear. Does a failure to appear occur inside or outside the presence

of the court? In People v. Madonna,10 a party failed to appear for a scheduled sentencing

hearing, and received 90 days for the failure to appear. In Harthun v. District Court,11 and

District Attorney In and For Alamosa County v. District Court,12 a lawyer or district attorney

failed to appear. The judges dealt with these FTA's as direct contempt, proceeded against the

various people summarily and imposed various punishments. The sentences/sanctions imposed

in the three foregoing cases were all reversed on appeal.13

The same result occurred in Marriage of Johnson,939 P.2d 479 (Colo.App.1997),where

the district judge's finding that an attorney was in direct contempt for appearing at a hearing by

telephone, and not in person, was reversed, holding that at best the conduct in question

constituted indirect contempt. Only conduct that occurs in open court that the judge actually sees

or hears can constitute direct contempt.

F. Punitive Sanctions for Contempt Defined

Punitive sanctions for contempt (formerly referred to as "criminal contempt" in the old

Rule 107) are now defined by Rule 107(a)(4) as: "Punishment by unconditional fine, fixed

sentence of imprisonment, or both, for conduct that is found to be offensive to the authority and

9 The following are cases which contain discussions of the difference between direct and indirect contempt, and the

need to be correct in distinguishing between the two. Dooley v. District Court, 811 P.2d 809 (Colo.1991); People v.

Madonna, 651 P.2d 378 (Colo.1982); P.R. v. District Court, 637 P.2d 346 (Colo.1981); People v. Ganatta, 622

P.2d 107 (Colo.App.1980); People v. Lucero, 196 Colo. 276, 584 P.2d 1208 (1978); Losavio v. District Court, 182

Colo. 180, 512 P.2d 266 (1973); Harthun v. District Court, 178 Colo. 118, 495 P.2d 539 (1972); District Attorney

In and For Alamosa County v. District Court, 150 Colo. 136, 371 P.2d 271 (1962). 10 651 P.2d 378 (Colo.1982). 11 178 Colo. 118, 495 P.2d 539 (1972). 12 150 Colo. 136, 371 P.2d 271 (1962). 13 In cases involving failures to appear, the critical question is whether an unexcused absence should be classified as

a direct or an indirect contempt for procedural purposes. Our appellate courts have held that an essential element of

the offense of failure to appear is the inadequacy of the explanation for the absence, or the intent of the party who

failed to appear (more on intent later). Matters involving a party's intent or willfulness are matters which are outside

the knowledge of a judge, and, therefore, a hearing must be held in order to determine the facts.

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dignity of the court." Punitive sanctions are imposed where the primary purpose for exercising

the power is to punish for disobedience of its orders or to punish for actions which flaunt the

dignity and authority of the court.

G. Remedial Sanctions for Contempt Defined

Remedial sanctions for contempt (formerly referred to as "civil contempt" in the old Rule

107) are now defined by Rule 107(a)(5): "Sanctions imposed to force compliance with a lawful

order or to compel performance of an act within the person's power or present ability to

perform." Remedial sanctions are imposed where the primary purpose of the exercise of the

power of contempt is to coerce compliance with an order and/or to provide a remedy for an

injured suitor.

H. Distinctions Between Punitive And Remedial Sanctions

Punitive sanctions for contempt are used to punish an offense act; remedial sanctions for

contempt are used to enforce compliance with an order of court. While this distinction appears

simple, most of the reversals in contempt cases result from a confusion of the two different

sanctions. In most cases, the penalty will define whether or not a proceeding is remedial or

punitive. If the penalty is solely definite and punitive, the contempt will be deemed to be

punitive, regardless of the intent of the judge. If the coercive action of the court is solely

remedial, to obtain compliance with an order, the contempt will be deemed to be remedial even

though a jail sentence may be involved regardless of the intent of the judge. A jail sentence

which is definite, and which may not be avoided through any corrective action is punitive, a

criminal penalty. A jail sentence which is indefinite, and which may be avoided through taking

certain actions, is remedial, a civil penalty.14 Perhaps these illustrations of court orders are

helpful:

1. "Go to jail," is a punitive sanction for contempt.

2. "Go to jail until you do something," is a remedial sanction for contempt.

3. "Pay a fine of $100," is a punitive sanction for contempt.

4. "Pay $10 a day until you do something," is a remedial sanction for contempt.

It is possible to employ both punitive and remedial sanctions simultaneously, in the same

14 For examples, see McVay v. Johnson, 727 P.2d 416 (Colo.App.1986); People v. Razatos, supra,; Marriage of

Crowley, 663 P.2d 267 (Colo.App.1983); Marriage of Woodrum, 618 P.2d 732 (Colo.App.1980); Marriage of

Hartt, 43 Colo.App. 335, 603 P.2d 970 (1979); Marshall v. Marshall, 35 Colo.App. 442, 536 P.2d 845 (1975),

affirmed in part, reversed in part 191 Colo. 165, 551 P.2d 709 (1976). See also People ex rel. PUC v. Entrup, 143

P.3d 120 (Colo. App. 2006), where a judge’s contempt sanction was reversed in part because of a lack of distinction

in the findings of remedial and punitive contempt, plus the attempt to impose and suspend punitive sanctions upon

the contemnor..

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case. Rule 107(e) now provides in pertinent part: "... Remedial and punitive sanctions may be

combined by the court, provided appropriate procedures are followed relative to each type of

sanction and findings are made to support the adjudication of both types of sanctions."15

Carefully note that a punitive sanction cannot, by definition, be suspended. Rule 107(e)

now provides: "The court shall not suspend any part of a punitive sanction based upon the

performance or non-performance of any future acts. The court may reconsider any punitive

sanction. Probation shall not be permitted as a condition of any punitive sanction." The case of

McVay v. Johnson,16 is an illustration of this rule. The trial court found that a non-paying father

did not have the present ability to pay child support, but it found that in the past he had the

ability to pay but did not do so. The trial judge imposed a "punitive sanction" of ten days in jail,

but suspended that sentence indefinitely on condition that father pay as ordered. The Colorado

Court of Appeals reversed. The penalty began as a punitive penalty ("Go to jail 10 days"), but

was then conditioned on the performance of future duties ("But you don't have to go to jail if you

will pay as I order you to"). What started as a punitive penalty therefore became remedial, or

civil, in nature. The appellate court stated: "In order to confine a contemnor under a remedial

contempt order, the trial court must find that the contemnor has the present ability to perform the

act ordered," and the trial court in this case specifically found no such ability.17

Judgment and contempt are no longer exclusive remedies and now may be ordered

simultaneously. In re Marriage of Nussbeck, 974 P.2d 493 (Colo.1999), cert. denied 528 U.S.

817, 120 S.Ct. 56, 145 L.Ed.2d 49 (1999), the Colorado Supreme Court reversed the prior Court

of Appeals decision, In re Marriage of Nussbeck, 949 P.2d 73 (Colo.App.1997), which held the

reduction of child support arrearages to a judgment protected the contemnor from either remedial

or punitive contempt sanctions. In Nussbeck, the Supreme Court upheld a Magistrate's order

finding a respondent father had failed to pay a child support order that had been reduced to

judgment, holding him in punitive contempt and imposing a 90 day jail sentence, "to vindicate

the dignity of the court for your continual obstruction of the order of the court." In addition it

overruled In re Marriage of Woodrum, 618 P.2d 732 (Colo.App.1980). In Woodrum, the court

entered judgment against a father for past due child support, but also found the father in contempt

and ordered him to pay $40 per month on the arrearage.

The Colorado Court of Appeals recently distinguished between remedial and punitive

contempt in terms of the relief available. In Eichhorn v. Kelley, 56 P.3d 124 (Colo.App.2002),

the court held that C.R.C.P. 107(d)(2) specifically allows an award of attorney fees as a remedial

sanction, but C.R.C.P. 107(d)(1) has no comparable provision for a punitive sanction, so the

latter provision must be construed to exclude an award of attorney fees as a punitive sanction. In

Wimmershoff v. Finger, 74 P.3d 529 (Colo.App.2003), the Court of Appeals allowed a pro se

attorney to recover his attorney's fees in a remedial contempt action.

15 See Razatos, Marshall, Woodrum and Crowley, supra. For example: "For your past refusal to pay child support,

go to jail for ten days, and for your future refusals to pay child support, go to jail until you do." 16 727 P.2d 416 (Colo.App.1986). 17 727 P.2d at 418.

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I. Procedures Required in Direct Contempt Matters

Rule 107(b) directs the manner in which direct contempt proceedings are handled. It

provides that when a direct contempt is committed, it may be punished summarily. Prior to the

imposition of any sanctions, the court is required to enter an order on the record or in writing:

1. reciting the facts constituting the contempt, including a description of the person's

conduct,

2. making a finding that the conduct was so extreme that no warning was necessary or the

person's conduct was repeated after the court's warning to desist, and

3. making a finding that the conduct is offensive to the authority and dignity of the court.

If all of the elements are met, a judge may punish an offender on the spot, without any

further hearing other than apologies in mitigation. Prior to the imposition of any sanctions, the

court must allow the person the right to make a statement in mitigation.

It may not be an element per se, but in most cases a warning from the judge should

precede the actual declaration of contempt.18 This may mean that, in reality, there is a need for

repeat conduct: conduct, warning, conduct again. It may be that the conduct was so extreme that

no warning was necessary (in the unusual situation where the judge gets punched in the nose, or

someone else gets punched in the nose).

Mere misbehavior is not alone sufficient to give rise to a finding of contempt, but the

misbehavior must cause some form of disruption:

The power of a judge to punish contempt committed in his presence is not designed to

protect his own dignity or person, but to protect the rights of litigants and the public by

ensuring that the administration of justice shall not be thwarted or obstructed.19

The power should be "invoked only when the judicial process has been seriously affronted or

disrupted."20

Arguments of counsel are not contempt unless there is created "an obstruction which

blocks the judge in the performance of his judicial duty."21 It has been held there was no

18 People v. Ellis, 189 Colo. 378, 540 P.2d 1082 (1975): Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39

L.Ed.2d 693 (1974). 19 People v. Ellis, 189 Colo. 378, 540 P.2d 1082, 1083 (1975). In Ellis, the trial court was offended by a punitive

defendant's answers to the court's questions during arraignment, and without warning sentenced him to 30 days in

jail. The Supreme Court noted no facts were before it which would support a finding of contempt. No clear warning

was given. Since the primary factual foundation consisted of the defendant's responses to the court's questions, the

record did not support a finding of direct contempt for which summary punishment would lie. Case reversed and

dismissed. 20 Thrap v. People, 192 Colo. 341, 558 P.2d 576 (1977). 21 In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962); Hill v. Boatright, 890 P.2d 180

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contempt by an attorney if the court's order was erroneous, and there was no disruption.22 But

where an attorney's actions delayed and hindered proceedings by not timely submitting jury

instructions, a $1,000 fine was held to be not excessive, even though it was not based on any

damages, costs or amounts of the opposition's attorney fees.23

Intent. Not every state requires that a contemnor's conduct be intentional or willful, but

Colorado does. Rule 107 is silent on the requirement, but many of the Colorado appellate cases

have required intent. In the case of In re Murley,24 the Supreme Court stated that a finding of

intention was not necessary, but "it goes to the gravamen of the offense." See People v. Holmes,

967 P.2d 192 (Colo.App.1998) which held a direct contempt finding in and order punishing an

attorney-litigant for his foul language directed at the prosecutor but heard by the judge was not

abuse of discretion. Later cases have clearly required a finding by the court that the conduct

which is the subject of a contempt be willful or intentional. In Harthun, the Supreme Court

demanded that the trial court have a hearing to determine if the attorney's absence was

"deliberate" or "willful," or intended to delay or inconvenience the court. In the case of Lobb v.

Hodges,25 the Court of Appeals required the trial court to find whether or not the absence of the

party was "in good faith and with honest intent."

Direct remedial contempt sanctions can be imposed "on the spot." Of course, the

appropriate findings are required. A court should recite on the record or in writing at least: (1)

that the contemnor is under an order to perform, (2) that the contemnor has or is refusing to

perform the order, and (3) the contemnor has the present ability to perform.26,27

While remedial contempt sanctions can be imposed "on the spot," the court must

nonetheless make sure the contemnor has the present ability to perform the court's orders. The

perils of direct remedial contempt are evident in In re the Estate of Elliott, 993 P.2d 474

(Colo.2000). See also People v. Mulberry, 919 P.2d 835 (Colo.App.1995), cert. denied (because

criminal case in which criminal defendant refused to testify was dismissed, punitive sanction was

appropriate). The trial court became so furious with the contemnor, that the contemnor was

ordered incarcerated, following a heated exchange with the judge, without making the necessary

findings that the contemnor had the present ability to restore missing money to the Estate. As a

result, the contempt order was reversed and the case was remanded.

J. Procedures Required in All Indirect Contempt Matters

(Colo.App.1994); Jordan v. County Court, 722 P.2d 450 (Colo.App.1986) (the Judge Larry Lopez–Alexander

"Excuse me, your honor" case). But see also Menin v. County Court, 697 P.2d 398 (Colo.App.1984). 22 People v. Roberts, 722 P.2d 443 (Colo.App.1986). 23 Wooden by Wooden v. Park School District R–3, 748 P.2d 1311 (Colo.App.1987). 24 124 Colo. 581, 239 P.2d 706 (1951). 25 641 P.2d 310 (Colo.App.1982). 26 Marshall v. Marshall, supra. 27 0Example: "I am ordering you to tell me where you have hidden your daughter." [refusal] "Very well, the court

finds the respondent has been directly ordered by this court to reveal the whereabouts of her daughter, that the

respondent refuses to comply with this order, and that she has the present ability to perform the court's order.

Accordingly, I find you in direct contempt of court, and as a remedial sanction, am ordering you remanded into the

custody of the sheriff until you do reveal the whereabouts of your daughter."

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It is important to remember that any action which may constitute contempt which has

occurred outside of the direct sight or hearing of the court is considered indirect contempt. It

would be improper to handle any such matter summarily. A hearing is required; this is

mandatory. The hearing must be initiated through the use of a motion, order and citation for

contempt, as set forth in Rule 107(c):

"When it appears to the court by motion supported by affidavit that indirect contempt has

been committed, the court may ex-parte order a citation to issue to the person so charged

to appear and show cause at a date, time and place designated why the person should not

be punished. The citation and a copy of the motion, affidavit and order shall be served

directly upon such person at least twenty days before the time designated for the person

to appear."

The foregoing is now a fixed procedure for all indirect contempt proceedings.

Regardless of whether punitive or remedial sanctions are sought, there must be at least twenty

days between the date of service of the motion, order and citation and the first appearance date on

the citation. The motion must be supported by an affidavit. The procedures have been further

divided into two categories for punitive and remedial sanctions.

K. Procedures Required in Indirect Contempt Matters Where Punitive Sanctions are

Sought

The procedures for punitive sanctions for indirect contempt are set forth in Rule

107(d)(1). Following a hearing where the rights set forth in the following section (§ 107.12) are

afforded to the person charged with contempt, the court may impose a fine or imprisonment or

both if the court expressly finds that the person's conduct was offensive to the authority and

dignity of the court. Of course, the person shall have the right to make a statement in mitigation

prior to the imposition of sentence. People v. J.M., 22 P.3d 545 (Colo.App.2000), cert. denied,

April 23, 2001, involved a trial court's attempt in a juvenile delinquency case to hold a juvenile's

parents in contempt, pursuant to C.R.S. § 19–2–113(1)(a), C.R.S. for failure, without good cause,

to attend any proceedings concerning the juvenile. The trial court sentenced the parents to jail as

a part of the juvenile's sentence for contempt of court. The court of appeals found this to be an

illegal sentence under the juvenile code, and reversed the trial court. The district attorneys urged

affirmance based upon the theory that the sentence was in reality a remedial sanction. However

no procedural safeguards were afforded to the parents prior to the imposition of sentence. I

suggest the proceeding is more punitive in nature than remedial.

L. Due Process Rights Required for Punitive Sanctions

A detailed analysis of minimum due process rights that are now required before the court

imposes punitive sanctions for indirect contempt follows.

Notice. Notice of the allegations comprising the contemptuous acts, as well as the date of

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the first appearance, is generally provided in the motion, citation and order to show cause. As

stated in Rule 107(c): "The citation and a copy of the motion, affidavit and order shall be served

directly upon such person at least twenty days before the time designated for the person to

appear." Note that the citation must now provide sufficient time to permit the person to properly

prepare for a hearing (at least twenty days). The citation to show cause, which is issued by the

deputy clerk of the court, is a result of the court's entry of an order directing the clerk to issue the

citation. The order can either be generated by the court sua sponte, or on motion and affidavit

from counsel.28 The court can only find a contempt as to the specific conduct which is described

in the citation.29

Appointment of Special Prosecutor. As set forth in Rule 107(d)(1): The court may

appoint special counsel to prosecute the contempt action. This may be necessitated in the

situation where the court is initiating the contempt proceeding. This is most frequent in

situations of juror misconduct, and juror and witness failures to appear. Depending on the court

which is involved, either an Assistant City Attorney or a Deputy District Attorney should be

appointed as a special prosecutor, in those circumstances where it does not look well for a judge

to prosecute his/her own cause. The rule is permissive, however, in case the resources are not

available, or the City Attorney or D.A. is reluctant.

Hearing Before Another Judge. Rule 107(c) now states: "If the judge initiates the

contempt proceedings, the person shall be advised of the right to have the action heard by

another judge." The appellate courts in Colorado have held that hearings for indirect contempts

should be heard by a different judge.30 The language of these cases, taken together, do not make

it clear whether the need for a different judge is a requirement, a strong suggestion or one

possibility. If a hearing before a different judge is a requirement, such a procedure is

burdensome, a nuisance and perhaps not in the interests of justice, particularly in cases which

involve nothing more than absent attorneys or parties. Contempt matters arising in dissolution of

marriage and child support cases are never referred to another judge, and there has never been an

appellate decision which held that a different judge was either necessary or desirable in such

contempt cases. A judge's continued presence on a contempt arising from a dissolution case may

28 In Dooley v. District Court, 811 P.2d 809 (Colo.1991), it was held that a two day notice of a contempt hearing

against two public defenders was inadequate. 29 People v. Razatos, supra; P.R. v. District Court, supra; Wright v. District Court, 192 Colo. 553, 561 P.2d 15

(1977); Ealy v. District Court, 189 Colo. 308, 539 P.2d 1244 (1975); Austin v. City and County of Denver, 156

Colo. 180, 397 P.2d 743 (1964); Eatchel v. Lamphere, 170 Colo. 545, 463 P.2d 457 (1970); Harthun v. District

Court, supra. 30 People v. Ganatta; Ealy v. District Court; Harthun v. District Court. The Ealy and Ganatta decisions both merely

cited to the Harthun case as authority for the proposition that a different judge is required in cases involving indirect

contempt. Harthun is not very explicit on such a requirement, but merely states:

"Although the case at bar does not involve a personal attack and affront to the judge [it involved a lawyer who

FTA'd], as was the case in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), an indirect

contempt case involving an attorney, we subscribe to the rationale therein whereby the court commented that where

conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called

upon to act in a case of contempt in which he is involved may without flinching from his duty, properly ask that one

of his fellow judges take his place." [Emphasis added.] Harthun v. District Court, supra, 495 P.2d at 541–542.

11

be legitimate and tolerated because he/she has no "entanglement" in the proceedings, or no

personal involvement. Usually these indirect contempt proceedings are party-generated and seek

imposition of a remedial sanction.31

The Right to Counsel. The right to be represented by counsel at a contempt hearing is

recognized in Rule 107(d)(1): "At the first appearance, the person shall be advised of the right

to be represented by an attorney and, if indigent and if a jail sentence is contemplated, the court

will appoint counsel." The right to be represented by appointed counsel where a jail sentence is

contemplated presents a problem for some jurisdictions which lack funds for such services. The

public defender in Colorado will not provide attorneys for contempt proceedings, nor pay the

costs for any appointed attorneys. Nevertheless, both Colorado appellate courts have held the

right to appointed counsel to be fundamental.32 If the court fails to advise the person of the right

to an attorney, then it cannot impose jail as a punitive sanction, since it must be presumed that

the court is no longer contemplating jail.

Right to a Jury Trial. The U.S. Supreme Court, in Codispoti v. Pennsylvania,33

articulates when a contemnor is entitled to a trial by jury. When the necessity of circumstances

warrants, a contemnor may be summarily tried for summary direct contempt, and punished for a

term of no more than six months in prison. Codispoti is reflected in Rule 107(d)(1): "The

maximum jail sentence shall not exceed six months unless the person has been advised of the

right to a jury trial." The proscription without proper advisement is mandatory.34 The principle

that a contemnor does not have a right to a jury trial unless a sentence in excess of six months is

contemplated was once again confirmed in Kourlis v. Port, 18 P.3d 770 (Colo.App.2000). The

judge had indicated at the outset of the proceedings that no more than six months in jail would be

imposed, denied the defendant a right to a jury trial in the contempt proceeding and was affirmed.

Right to Enter a Plea to the Charge. A punitive contempt proceeding is similar to a

criminal trial in some respects. Rule 107(d)(1) provides that a person faced with punitive

sanctions has "the right to plead either guilty or not guilty to the charges." The person can either

admit or deny the charges. If, at the first appearance date, the person knowingly and voluntarily

admits the charges and waives all rights to trial and appeal, including the right to counsel, then

the court can proceed to a penalty phase in the proceedings.

The Presumption of Innocence. Since a punitive contempt proceeding is similar to a

criminal trial, Rule 107(d)(1) now provides the person who is charged with contempt has the

presumption of innocence.

31 In Harthun, the Supreme Court noted that:

"the semblance of due process is a sham when the judge is both prosecutor and judge. The fact that the judge is

prosecutor in an indirect contempt case, subjects the accused to the possibility of reprisal just as much as in the case

of a judge presiding in a contempt case wherein he had been personally attacked." 495 P.2d at 542. 32 Marriage of Wyatt, 728 P.2d 734 (Colo.App.1986); People v. Lucero, supra; Padilla v. Padilla, 645 P.2d 1327

(Colo.App.1982); See also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). 33 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974). 34 See People v. Zamora, 665 P.2d 153 (Colo.App.1983).

12

Burden of Proof. It naturally follows, given the similarity to a criminal trial, that

amended Rule 107(d)(1) would provide: "the right to require proof of the charge beyond a

reasonable doubt."35

The Right to Confront/Call Witnesses. Rule 107(d)(1) now provides for "the right to

present witnesses and evidence, the right to cross-examine all adverse witnesses, the right to

have subpoenas issued to compel attendance of witnesses at trial."36

The Right to Remain Silent or to Testify. Rule 107(d)(1) as amended provides for "the

right to remain silent, the right to testify at trial," The case of People v. Razatos has made it

clear that a moving party in a contempt situation may not be able to rely upon testimony from the

alleged contemnor to prove up the case. The Supreme Court held:

"[T]he possibility of imprisonment arising out of contempt proceedings, whether civil or

criminal, has been held to trigger [certain constitutional rights].... By analogy, the

possibility of imprisonment for contempt should trigger the Fifth Amendment privilege

against self-incrimination, and its Colorado counterpart, at least where the potential exists

for a contempt sanction imposed as punishment. We hold that it does."37

The Razatos decision holds, therefore, that an alleged contemnor has the right to decline

to testify where his testimony might tend to provide evidence which could lead to a finding of

contempt and a punitive jail sentence. The privilege does not apply where the jail sentence to

be imposed is for remedial purposes.38 In In re Marriage of Alverson, 981 P.2d 1123

(Colo.App.1999), it was held error to force a husband contemnor to testify when he asserted his

Fifth Amendment privilege to remain silent in an indirect punitive contempt proceeding.

The Right to Appeal. The Rule 107(d)(1) now requires an advisement to include the

right to appeal any adverse decision. This ties in Rule 107(f), concerning appeal: "For the

purposes of appeal, an order deciding the issue of contempt and sanctions shall be final."

The Right to Make a Statement in Mitigation. The right to allocution is basic in a

criminal trial proceeding. Rule 107(d)(1) now requires this to be included in the advisement:

"The person shall have the right to make a statement in mitigation prior to the imposition of 35 As the Colorado Supreme Court noted in People v. Razatos:

"The deprivation of a person's liberty has the same effect on the confined person when jailed after civil or other types

of proceedings as when imprisoned after conviction for a crime." 699 P.2d at 976. 36 This right is assured by Losavio v. District Court, 182 Colo. 186, 512 P.2d 266 (1973). See also People v.

Razatos, supra. 37 0699 P.2d at 977. 38 1The parties and the court should know in advance whether there is a "punitive jail sentence" contemplated at the

end of the hearing—or not. If such a sentence exists, even as a bare possibility, a claim of "the Fifth" must be

honored, and the moving party must prove the case without the benefit of testimony from the accused. This can

place a tough burden on the moving party if the substance of the proceeding involves the alleged contemnor's ability

or inability to pay child support, for example.

13

sentence."

Other Rights Not Specifically Set Forth in the Rule. The right to the protections

which are afforded by the double jeopardy clauses of both the federal and Colorado

constitutions.39 This means that a finding in contempt could bar a subsequent action for

contempt if the new action is based upon the same facts as the prior contempt adjudication. The

double jeopardy clause no longer bars the subsequent prosecution of a criminal defendant who

has been adjudicated in contempt when the criminal charges arise from the same incident, since

the elements of contempt and the elements of underlying criminal offenses are different.40

The Right to "Good Time." Although it may be argued that there is no good time for

contempt because good time is a legislative credit for a criminal sentence that is imposed

pursuant to statute and because it would seem to undermine the court's authority to impose an

exact punishment to vindicate the authority and dignity of the court, the Colorado Court of

Appeals has held that good time is available to a contemnor. In re the Marriage of Helmich, 937

P.2d 897 (Colo.App.1997), held that a contemnor is entitled to good time as calculated by the

sheriff pursuant to West's C.R.S.A. § 17–26–109 as with any other criminal sentence.

M. Due Process Rights Required for Remedial Sanctions

A detailed analysis of minimum due process rights that are now required before the court

imposes remedial sanctions for indirect contempt follows.

A Straightforward Rule. The procedures for remedial sanctions for indirect contempt

are set forth in Rule 107(d)(2):

"In a contempt proceeding where remedial sanctions may be imposed, the court shall

hear and consider the evidence for and against the person charged and it may find the

person in contempt and order sanctions. The court shall enter an order in writing or on

the record describing the means by which the person may purge the contempt and the

sanctions that will be in effect until the contempt is purged. In all cases of indirect

contempt where remedial sanctions are sought, the nature of the sanctions and remedies

that may be imposed shall be described in the motion or citation. Costs and reasonable

attorney's fees in connection with the contempt proceeding may be assessed in the

discretion of the court. If the contempt consists of the failure to perform an act in the

power of the person to perform and the court finds the person has the present ability to

perform the act so ordered, the person may be fined or imprisoned until its performance."

It would seem that the foregoing language is self-explanatory. It is important to review the

39 2People v. Matheson, 671 P.2d 968 (Colo.App.1983). 40 3People v. Stenson, 902 P.2d 389, (Colo.App.1994); People v. Allen, 868 P.2d 379 (Colo.1994); United States

v. Dixon, ___ U.S. ___, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Dixon overruled Grady v. Corbin, 495 U.S. 508,

110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

14

motion for contempt citation as well as the proposed citation to make sure that the sanctions and

remedies the movant wishes to be imposed are adequately described in the said motion or

citation.

Procedural Safeguards. All of the procedural safeguards which are required in the case

of punitive sanctions are not required for purely remedial sanctions. Of course, if the possibility

of a combination of the two sanctions exists, then a complete advisement for punitive sanctions

will be required. Remember that regardless of whether punitive or remedial sanctions are sought

in an indirect contempt situation, there must be at least 20 days between the date of service of the

motion, order and citation and the date of the hearing.

Present Ability to Perform. If the contempt consists of the failure to perform an act in

the power of the person to perform (i.e. pay back child support), and if the court finds the person

has the present ability to perform the act so ordered (pay back child support), then the person

may be fined or imprisoned until its performance. The court must enter an order in writing or on

the record describing the means by which the person may purge the contempt and the sanctions

that will be in effect until the contempt is purged.

Burden of proof. Certain general principles of law and procedure are as applicable in

contempt cases as in any other cases. The moving party, in a case of indirect remedial contempt,

has the burden of going forward, and the burden of proving the proposition, of making a prima

facie showing that an underlying court order has been violated. However, the contemnor has the

burden of proving his/her present inability to comply with the court's prior orders.41

While remedial contempt sanctions can be imposed "on the spot," after the court has

made sure the contemnor has the present ability to perform the court's orders, nonetheless certain

privileges may prevent the imposition of the sanction. In Gordon v. Boyles, 9 P.3d 1106

(Colo.2000), the Colorado Supreme court that the newsperson's privilege pursuant to § 13–90–

119.5, C.R.S. negated the trial court's order of contempt against the defendant, who steadfastly

refused to reveal his sources in a libel and slander case.

N. Failures To Appear, Bench Warrants

Rule 107(c) sets forth the procedure to be followed in situations of failures to appear for a

contempt citation and the issuance of bench warrants.42 There were few changes to the language

41 Marriage of Lamutt, 881 P.2d 445 (Colo.App.1994). 42 "If such person fails to appear at the time so designated, and it is evident to the court that the person was properly

served with copies of the motion, affidavit, order, and citation, a warrant for the person's arrest may issue to the

sheriff. The warrant shall fix the date, time and place for the production of the person in court. The court shall state

on the warrant the amount and kind of bond required. The person shall be discharged upon delivery to and approval

by the sheriff or clerk of the bond directing the person to appear at the date, time and place designated in the warrant,

and at any time to which the hearing may be continued, or pay the sum specified. If the person fails to appear at the

time designated in the warrant, or at any time to which the hearing may be continued, the bond may be forfeited upon

proper notice of hearing to the surety, if any, and to the extent of the damages suffered because of the contempt, the

bond may be paid to the aggrieved party. If the person fails to make bond, the sheriff shall keep the person in

15

of "old Rule 107" from a procedural context. The courts basically handle failures to appear in the

same manner as with non-appearing criminal defendants. If there is no appearance in derogation

of the court's order to appear, then a bench warrant issues. The court can specify cash or surety

bond, or CASH ONLY. The benefit of a cash only bond is that if the contemnor posts a cash

bond, and then fails to appear at the bond return hearing, the cash bond can be forfeited and paid

to the injured party (many times the creditor). If a professional surety bond is posted, and the

contemnor fails to appear at the bond return hearing, the court can issue a new bench warrant, set

a new bond (hopefully significantly higher than the first one) and order a bond forfeiture hearing

be held. Remember to ask the court to provide professional sureties with prompt notice of bond

forfeiture hearings.43

In In re People ex rel. B.C., 981 P.2d 145 (Colo.1999). the Colorado Supreme Court held

that a writ in the nature of ne exeat (under C.R.C.P. 106) is an appropriate as a means of ensuring

that a party does not depart from the jurisdiction of the court and thereby evade a hearing on

whether he or she should be held in contempt under C.R.C.P. 107.

O. Appeals from Contempt Orders

Rule 107(f) states: "For the purposes of appeal, an order deciding the issue of contempt

and sanctions shall be final." Practically, the review of county court contempt sanctions is

brought in the district court by either filing a petition under Rule 106, C.R.C.P., for a writ of

prohibition or mandamus,44 or on direct appeal pursuant to Rule 411, C.R.C.P. See Securities

Investor Protection Corp. v. First Entertainment Holding Corp., 36 P.3d 175 (Colo.App.2001),

where a remedial contempt sanction was appealed. The appeal from the district court would then

be to the Supreme Court. The review of orders for contempt sanctions imposed by district courts

would be to the Court of Appeals on direct appeals, or to the Supreme Court on original

proceeding pursuant to C.A.R. 21(a).45 Punitive sanctions are not equivalent to a conviction for a

crime. A C.R.Crim.P. Rule 35(c) motion for post conviction review was held to be an improper

avenue of appeal.46

custody subject to the order of the court." 43 See C.R.S. § 16–4–109. 44 Jordan v. County Court, 722 P.2d 450 (Colo.App.1986). 45 District Attorney In and For Alamosa County v. District Court, 150 Colo. 136, 371 P.2d 271 (1962); People v.

Allen, 868 P.2d 379 (Colo.1994). 46 Benninghoven v. Dees, 849 P.2d 906 (Colo.App.1993).

16

. SAMPLE FORMS

Motion for Contempt Citation

DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

COURT USE ONLY

Plaintiff(s):

Super Duper Mart

Defendant(s):

Anthony Rubbercheck

Attorneys for the Plaintiff: Bill Kolectr, #987654 123 Intergalactic Bldg 3222 Seventeenth Street Denver, Colorado 80202 Telephone: (303) 555-1212 Attorneys for the Defendant:

Case Number:

Division:

Courtroom:

MOTION FOR CONTEMPT CITATION

COMES NOW the Plaintiff above-named, by and through its attorney, Bill Kolectr, and

hereby moves this Court for the issuance of a citation against the defendant, ANTHONY

RUBBERCHECK, requiring Defendant to show cause why he is not in contempt of Court for his

failure to obey the Court's order of August 22, 20__.

In support of this Motion, Plaintiff states as follows:

1. Under date of August 22, 20__, this Court ordered the Defendant to answer written

interrogatories concerning the property and assets of the Defendant within twenty days of receipt

of the interrogatories by the Defendant, pursuant to Rule 69, C.R.C.P.

2. Defendant was served with a copy of the Motion, Order and Interrogatories under Rule

69, C.R.C.P. by private process server on September 2, 20__, and said order directed Defendant

to file his answers to the Interrogatories with this Court within twenty days of service upon the

Defendant.

17

3. Defendant failed to answer said Interrogatories on or before September 28, 20__, and

has continued to fail to answer said Interrogatories as ordered.

4. Because of Defendant's willful failure in refusing to comply with and abide by the

Order of this Court as aforesaid, and further his failure to answer said Interrogatories in

compliance with the aforesaid Order in this matter, it has become necessary for the Plaintiff to

further employ services of counsel to institute these contempt citation proceedings, in which

attorney fees therefore in a reasonable sum of $_______ should be paid for by the defendant

herein.

WHEREFORE, Plaintiff prays that this Court issue a citation directed to the said

ANTHONY RUBBERCHECK, requiring the said ANTHONY RUBBERCHECK to personally

be and appear before this Court on a specified time and date to show cause why he is not in

contempt of Court for his failure to comply with the order of this Court, and that said Citation

inform the said Defendant that if the Defendant so fails to appear at the specific time before this

Court a fine and/or imprisonment may be imposed upon Defendant to vindicate the dignity of

this Court, and that if Defendant so fails to appear as ordered, that a bench warrant may be issued

for the arrest of the Defendant without further notice; and Plaintiff further prays this Court for

reasonable attorney fees in the sum of $_______, the request for which shall be included in the

Citation directed to the said Defendant herein, that this motion together with the Order and

Citation pursuant to Rule 107, C.R.C.P. be served by private process server, and for such other

and further relief as the Court deems just and proper in the circumstances.

Respectfully submitted,

__________

Bill Kolectr, # _______

Attorney for the Plaintiff

123 Intergalactic Bldg.

___ Seventeenth Street Denver, Colorado 80202

Telephone: __________

STATE OF COLORADO

ss.

CITY AND COUNTY OF DENVER

Bill Kolectr, being first duly sworn states he is the attorney for Plaintiff herein, has read

the foregoing Motion for Contempt Citation and knows its contents, and to the best of his

knowledge and belief, the factual allegations set forth therein are true and correct.

__________

Bill Kolectr

Attorney for Plaintiff

18

SUBSCRIBED AND SWORN to before me this _______ day of September, _______.

My commission expires:

__________

Notary Public

Address: __________

19

Order for Contempt Citation

DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

COURT USE ONLY

Plaintiff(s):

Super Duper Mart

Defendant(s):

Anthony Rubbercheck

Attorneys for the Plaintiff: Attorneys for the Defendant:

Case Number:

Division:

Courtroom:

ORDER FOR CONTEMPT CITATION

Plaintiff's Motion for Contempt Citation came before this Court this day, and the Court

being fully advised upon the Motion of the Plaintiffs, and upon inspection of the Court filed

herein, and the Court finding that there is a Court Order dated August 22, 20__, requiring

Defendant to file his answer to Interrogatories under oath with this Court within twenty days of

service of said Interrogatories, and further finding that said Interrogatories were served upon the

Defendant on September 2, 20__, and that Defendant has failed to answer said Interrogatories,

NOW, THEREFORE, IT IS HEREBY ORDERED that the Clerk of the District Court

forthwith issue a Citation to said Defendant as follows:

TO: ANTHONY RUBBERCHECK, DEFENDANT

GREETINGS:

Pursuant to the Order of the Court dated this _______ day of September, 20__, you are

hereby ordered and directed to be and appear personally before the District Court in and

20

for the City and County of Denver, and State of Colorado at Denver, Colorado, on

Thursday, the 8th day of November, 20__, at 9:00 o'clock a.m., to then and there show

cause why you should not be held in contempt of Court and further why you have failed

to file your answer to Plaintiff's Interrogatories with this Court on or before twenty days

after your receipt of said Interrogatories, pursuant to said Order on file herein, and further

why you should not be ordered to pay plaintiff's reasonable attorney fees in the sum of

$_______ incurred in instituting this contempt citation action, further why a fine/or

imprisonment should not be imposed upon you to vindicate the dignity of this Court, and

insure further compliance with the Orders of this Court; and

YOU ARE FURTHER INFORMED, that if you so fail to be and personally appear before

this Court through an authorized agent with authority and the necessary information to

answer said Interrogatories at the time, date and place herein specified, a bench warrant

may be issued for your arrest without further notice.

IT IS FURTHER ORDERED that this Order, together with Motion and Citation may be

served by private process server.

DONE AND SIGNED IN OPEN COURT THIS _______ DAY OF SEPTEMBER,

_______.

BY THE COURT:

__________

District Court Judge

21

Contempt Citation

DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

COURT USE ONLY

Plaintiff(s):

Super Duper Mart

Defendant(s):

Anthony Rubbercheck

Attorneys for the Plaintiff: Attorneys for the Defendant:

Case Number:

Division:

Courtroom:

CONTEMPT CITATION

TO: ANTHONY RUBBERCHECK, DEFENDANT

GREETINGS:

Pursuant to the Order of the Court dated this _______ of September, 20__, you are hereby

ordered and directed to be and appear personally in Courtroom _______ of the District Court in

and for the City and County of Denver and State of Colorado, located at 1437 Bannock Street,

City and County Building, Denver, Colorado at 9:00 o'clock a.m., on the 8th day of November,

20__, to then and there show cause why you should not be held in contempt of Court for your

failure to comply with the order of this Court of August 22, 20__, and further why you should not

be ordered to pay Plaintiff's reasonable attorney fees in the sum of $_______ incurred in

instituting this contempt citation action, and further why a fine and/or imprisonment should not

be imposed upon you to vindicate the dignity of this Court, and to insure further compliance with

the orders of this Court, and

YOU ARE FURTHER INFORMED, that if you so fail to be and personally appear,

through an authorized agent with the authority and necessary information to answer said

22

interrogatories, before this Court at the time, date and place herein specified, a bench warrant

may be issued for your arrest without further notice.

DONE THIS _______ DAY OF SEPTEMBER, 20__.

MILES C. FLESCHE,

Clerk of the District Court

By: __________

(Deputy) Clerk

23

Order for Contempt Citation (on Court's Own Motion)

DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

COURT USE ONLY

Plaintiff(s):

Defendant(s):

Attorneys for the Plaintiff: Attorneys for the Defendant:

Case Number:

Division:

Courtroom:

ORDER FOR CONTEMPT CITATION

THIS MATTER comes on pursuant to the Court's own investigation of punitive

Contempt which occurred out of the presence of this court on _______ _______, _______, and

the Court being fully advised that despite the warnings of this Court to the Defendant in open

court that he not _______, the Defendant nonetheless proceeded to _______.

NOW, THEREFORE, IT IS HEREBY ORDERED that the Clerk of the _______ Court

forthwith issue a Citation to said Defendant, directing him, pursuant to this Order of this Court

dated this date, that he be hereby ordered and directed to be and appear personally before the

_______ Court in and for the City and County of Denver, and State of Colorado at Denver,

Colorado, on _______, the _______ day of _______, _______, at _______ o'clock __.M., to then

and there show cause why he should not be held in contempt of Court for disobeying a direct

verbal order of this court, and further why a fine and/or imprisonment should not be imposed

upon him to vindicate the dignity of this Court, and insure further compliance with the orders of

this Court.

The Citation shall inform Defendant of his rights on trial and appeal, and shall further

inform him that if he so fails to personally appear before this Court at the time, date and place

24

herein specified, a bench warrant shall be issued for his arrest without further notice.

DONE AND SIGNED IN OPEN COURT THIS _______ DAY OF _______, _______.

BY THE COURT:

__________

Judge

25

Contempt Citation (Where Only Punitive Sanctions Sought)

DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

COURT USE ONLY

Plaintiff(s):

Defendant(s):

Attorneys for the Plaintiff: Attorneys for the Defendant:

Case Number:

Division:

Courtroom:

CONTEMPT CITATION

TO: DEFENDANT

GREETINGS:

Pursuant to the Order of the Court dated the _______ day of _______, _______, you are

hereby ordered and directed to be and appear personally in Courtroom _______ of the _______

Court in and for the _______ County of _______ and State of Colorado, located at _______

Building, Denver, Colorado, on the _______ day of _______, _______, at _______ o'clock

__.m., to then and there show cause why you should not have punitive sanctions imposed for

contempt of Court for your failure to obey a direct verbal [written ] order of this Court to not

_______, and further why a fine and/or imprisonment should not be imposed upon you to

vindicate the dignity of this Court, and to insure further compliance with the orders of this Court.

YOU ARE HEREBY INFORMED that you have the following rights at the said

contempt hearing:

1. You have the right to an attorney. If you cannot afford one, one will be appointed to represent

26

you, in the event jail is contemplated.

2. You have the right to either a trial to the court or a trial to a jury (if the contempt sanction

could exceed 180 days).

3. You have the right to have this contempt matter heard by a different judge.

4. You have the right to plead either guilty or not guilty to the charges of contempt.

5. You are presumed innocent unless proven guilty.

6. The prosecutor must prove each and every element of the contempt charges against you

beyond a reasonable doubt.

7. You have the right to cross-examine all prosecution witnesses.

8. You have the right to present whatever witnesses and evidence you wish at trial or hearing.

9. You have the right to request the court to issue subpoenas to compel witnesses to testify for

you.

10. You have the right to remain silent. No one can force you to testify against yourself. The

fact that you do not testify cannot be held against you.

11. You have the right to testify on your own behalf, if you wish, waiving your right against self-

incrimination, and if you do, then the prosecutor will be able to cross-examine you.

12. You have the right to appeal an adverse decision of the trial court, which must be done within

_______ days of your trial.

YOU ARE FURTHER INFORMED, that if you so fail to personally appear before

this Court at the time, date and place herein specified, a bench warrant shall be issued for

your arrest without further notice.

DONE THIS _______ DAY OF _______, _______.

Clerk of the _______ Court

By: __________

(Deputy) Clerk

27

Order for Appointment of Special Prosecutor

DISTRICT COURT

CITY AND COUNTY OF DENVER, COLORADO

Court Address: 1437 Bannock Street

Denver, Colorado 80202

COURT USE ONLY

Plaintiff(s):

Defendant(s):

Attorneys for the Plaintiff: Attorneys for the Defendant:

Case Number:

Division:

Courtroom:

ORDER APPOINTING PROSECUTOR

THIS MATTER comes on pursuant to the Court's own investigation of criminal

Contempt which occurred out of the presence of this court on _______ _______, _______, and

the Court being fully advised that despite the warnings of this Court to the Defendant in open

court that he not _______, the Defendant nonetheless proceeded to _______.

NOW, THEREFORE, IT IS HEREBY ORDERED, pursuant to Rule 107(d)(1), C.R.C.P.,

that _______, Special Deputy District Attorney, [Assistant City Attorney ], or any other Deputy

District Attorney [Assistant City Attorney ], be appointed to prosecute the charges of criminal

contempt against the said _______ with the initial hearing set for the _______ day of _______,

_______, at _______ o'clock __.M.

DONE AND SIGNED IN OPEN COURT THIS _______ DAY OF _______, _______.

BY THE COURT:

__________

Judge

28

RULE 107. REMEDIAL AND PUNITIVE SANCTIONS FOR CONTEMPT

(a) Definitions.

(1) Contempt. Disorderly or disruptive behavior, a breach of the peace, boisterous

conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due

course of judicial proceedings; behavior that obstructs the administration of justice; disobedience

or resistance by any person to or interference with any lawful writ, process, or order of the court;

or any other act or omission designated as contempt by the statutes or these rules.

(2) Direct Contempt. Contempt that the court has seen or heard and is so extreme that no

warning is necessary or that has been repeated despite the court's warning to desist.

(3) Indirect Contempt. Contempt that occurs out of the direct sight or hearing of the court.

(4) Punitive Sanctions for Contempt. Punishment by unconditional fine, fixed sentence of

imprisonment, or both, for conduct that is found to be offensive to the authority and dignity of

the court.

(5) Remedial Sanctions for Contempt. Sanctions imposed to force compliance with a

lawful order or to compel performance of an act within the person's power or present ability to

perform.

(6) Court. For purposes of this rule, "court" means any judge, magistrate, commissioner,

referee, or a master while performing official duties.

(b) Direct Contempt Proceedings. When a direct contempt is committed, it may be

punished summarily. In such case an order shall be made on the record or in writing reciting the

facts constituting the contempt, including a description of the person's conduct, a finding that the

conduct was so extreme that no warning was necessary or the person's conduct was repeated after

the court's warning to desist, and a finding that the conduct is offensive to the authority and

dignity of the court. Prior to the imposition of sanctions, the person shall have the right to make a

statement in mitigation.

(c) Indirect Contempt Proceedings. When it appears to the court by motion supported

by affidavit that indirect contempt has been committed, the court may ex parte order a citation to

issue to the person so charged to appear and show cause at a date, time and place designated why

the person should not be punished. The citation and a copy of the motion, affidavit and order

shall be served directly upon such person at least twenty days before the time designated for the

person to appear. If such person fails to appear at the time so designated, and it is evident to the

court that the person was properly served with copies of the motion, affidavit, order, and citation,

a warrant for the person's arrest may issue to the sheriff. The warrant shall fix the date, time and

place for the production of the person in court. The court shall state on the warrant the amount

and kind of bond required. The person shall be discharged upon delivery to and approval by the

sheriff or clerk of the bond directing the person to appear at the date, time and place designated

in the warrant, and at any time to which the hearing may be continued, or pay the sum specified.

If the person fails to appear at the time designated in the warrant, or at any time to which the

hearing may be continued, the bond may be forfeited upon proper notice of hearing to the surety,

if any, and to the extent of the damages suffered because of the contempt, the bond may be paid

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to the aggrieved party. If the person fails to make bond, the sheriff shall keep the person in

custody subject to the order of the court.

(d) Trial and Punishment.

(1) Punitive Sanctions. In an indirect contempt proceeding where punitive sanctions may

be imposed, the court may appoint special counsel to prosecute the contempt action. If the judge

initiates the contempt proceedings, the person shall be advised of the right to have the action

heard by another judge. At the first appearance, the person shall be advised of the right to be

represented by an attorney and, if indigent and if a jail sentence is contemplated, the court will

appoint counsel. The maximum jail sentence shall not exceed six months unless the person has

been advised of the right to a jury trial. The person shall also be advised of the right to plead

either guilty or not guilty to the charges, the presumption of innocence, the right to require proof

of the charge beyond a reasonable doubt, the right to present witnesses and evidence, the right to

cross–examine all adverse witnesses, the right to have subpoenas issued to compel attendance of

witnesses at trial, the right to remain silent, the right to testify at trial, and the right to appeal any

adverse decision. The court may impose a fine or imprisonment or both if the court expressly

finds that the person's conduct was offensive to the authority and dignity of the court. The person

shall have the right to make a statement in mitigation prior to the imposition of sentence.

(2) Remedial Sanctions. In a contempt proceeding where remedial sanctions may be

imposed, the court shall hear and consider the evidence for and against the person charged and it

may find the person in contempt and order sanctions. The court shall enter an order in writing or

on the record describing the means by which the person may purge the contempt and the

sanctions that will be in effect until the contempt is purged. In all cases of indirect contempt

where remedial sanctions are sought, the nature of the sanctions and remedies that may be

imposed shall be described in the motion or citation. Costs and reasonable attorney's fees in

connection with the contempt proceeding may be assessed in the discretion of the court. If the

contempt consists of the failure to perform an act in the power of the person to perform and the

court finds the person has the present ability to perform the act so ordered, the person may be

fined or imprisoned until its performance.

(e) Limitations. The court shall not suspend any part of a punitive sanction based upon

the performance or non–performance of any future acts. The court may reconsider any punitive

sanction. Probation shall not be permitted as a condition of any punitive sanction. Remedial and

punitive sanctions may be combined by the court, provided appropriate procedures are followed

relative to each type of sanction and findings are made to support the adjudication of both types

of sanctions.

(f) Appeal. For the purposes of appeal, an order deciding the issue of contempt and

sanctions shall be final.

[Amended and Adopted by the Court, En Banc, January 26, 1995, amended effective April 1,

1995; corrected effective June 15, 1995.]