THE INS AND OUTS OF CONTEMPT
September 26, 2012 § 7 Comments
Last week’s Corr v. State decision from the MSSC is a reminder that there are some intricacies to contempt that we should all be aware of as we go about our business in chancery court.
Contempt can be either civil, or criminal, or a combination of both.
- Civil contempt is for the benefit of the complaining party, and its purpose is remedial. An example is where the respondent owes child support and is jailed until he can come up with what he owes. The remedy is coercive and is intended to produce compliance. The burden of proof is by a preponderance of evidence.
- Criminal contempt is intended to vindicate the authority of the court. The sentence is punitive.
- The two types of contempt may be used in combination, as where the court orders the respondent jailed until he pays the amount due, and the court sentences him to thirty days as a punishment for non-compliance.
Civil contempt may be tried on seven days’ notice by Rule 81 summons.
Criminal contempt under Mississippi law may be either direct or indirect. The distinction determines what kind of due process notice is required.
- Direct criminal contempt involves words or actions in the presence of the court that are an affront to the authority or dignity of the court. Conduct such as insulting language or behavior, resistance to the court’s authority, disruption of the proceedings and the like may be treated as direct contempt. The court may act instantly to punish the contemnor because no evidence other than the judge’s own perception is necessary to sustain sanctions. In the alternative, the court may wait until later in the proceedings, at a break or at the end of a hearing, to address the misconduct.
- Indirect, or constructive, criminal contempt is contemptuous conduct that takes place outside the presence of the court which resists the court’s authority and tends to obstruct, interrupt or embarrass the administration of justice.
Direct contempt may be dealt with immediately, summarily, and without further notice to the contemnor. Some authorities suggest that, if the court delays action, the judge should recuse herself if the contempt is based on personal attacks.
In cases of indirect, or constructive, criminal contempt, the defendant: (1) is presumed innocent until proven guilty beyond a reasonable doubt; (2) is entitled to resonable notice of the nature and cause of the accusation; (3) has a right to be heard; (4) has a right to retain counsel; (5) has the right to call and cross-examine witnesses; (6) has the right to an unbiased judge; (7) has the right to a jury trial; and (8) has the right against self-incrimination. Dennis v. Dennis, 824 So.2d 604, 609 (Miss. 2002). If the judge, as in Corr, is substantially involved in the prosecution, as where he is instrumental in initiating the proceeding, or where he acts as prosecutor and judge, he should recuse himself and have the actual contempt hearing conducted by another judge.
When you draft contempt pleadings, give some thought to what it is you are trying to accomplish. If all you are trying to do is to get the ex-husband to pay his child support, civil contempt may do the job for you. It only requires a preponderance of evidence, as opposed to the heavier burden for criminal contempt. If you insist on criminal contempt, look carefully at Dennis and its requirements. Do you really want to strap them on? Are they really in your client’s best interest? When you insist on criminal contempt, you are affording the defendant Fifth Amendment self-incrimination protection, the higher burden of proof, and even right to a jury trial (this applies in cases where the aggregation of penalties would result in a sentence that would require Sixth Amendment protection. McGowan v. State, 258 So.2d 810, 802 (Miss. 1972); Purvis v. Purvis, 657 So.2d 794, 798 (Miss. 1995); Walls v. Spell, 722 so.2d 566, 574 (Miss. 1998)).
If you simply can not resist the urge to rattle the incarceration saber, be sure to acquaint yourself with the US Supreme Court decision in Turner v. Rogers.
[…] A previous post dealing with the subject is at this link. […]
[…] talked here before about the distinction between indirect and direct criminal contempt. Indirect contempt is also called constructive […]
[…] We visited the various types of contempt and how the court addresses them in a previous post. […]
I thought Corr was useful for clarifying that, say, conduct in the courthouse (clerk’s office, etc.) does not count as “in the presence of the judge” — presence means presence, not vicinity.
There are actually some cases that talk about conduct nearby, as in the halls of the courthouse. I think the dividing line falls where the court was affronted in a situation where the judge could clearly perceive with his own senses as it happened that the contemptuous conduct occurred, then it is direct. If it takes testimony of another to establish the facts, it should be treated as indirect. In Corr, I think the judge was correct that he should be able to take notice of what is in the court file. But it still took the admission of the contemnor, and perhaps testimony of others to make the case, which meant that they had to testify about matters outside the judge’s sensory perception. So I can’t argue with the MSSC ruling, and I agree that it does provide some helpful clarification in an area where there is only a small body of law to guide trial judges.
So if the judge at the bench hears shouting in the hallway, some 10 or 12-letter words perhaps, but needs to ask questions to find out WHO is shouting, still no direct contempt?
A few questions don’t remove it from direct contempt, in my opinion. I saw with my own two eyes a man flip me off while I was on the bench. I had the bailiff bring him forward and asked him whether he meant that as a gesture of contempt, which he affirmed. That cost him 5 days in jail (but had he denied it I would have found the gesture contemptuous and sentenced him anyway). Likewise, if the judge hears a disturbance out in the hall with his own ears and asks the bailiff to bring in the shouter, it would depend from there whether there is any dispute as to who caused it and why. If there is any genuine dispute, in my opinion, it should be treated from that point as indirect. If a lawyer does not appear in court when scheduled, is that in the presence of the court or not?