RECIPES FOR DIRECT CONTEMPT
October 3, 2012 § 4 Comments
We visited the various types of contempt and how the court addresses them in a previous post.
Here are some examples of direct criminal contempt that the courts have recognized:
- Foul or threatening language or physical assault. Lamar v. State, 607 So.2d 129 (Miss. 1992). Note that the misconduct in Lamar took place in the foyer of a court room. Also, Varvaris v. State, 512 So.2d 886, 887-88 (Miss. 1987).
- Language insulting to or in ridicule of the court. In re Smith, 926 So.2d 878, 883 (Miss. 2006). Also, Miss. Bar v. Lumumba, 912 So.2d 871, 880-82 (Miss. 2005). See, also UCCR 1.01.
- Outrageous dress or costume may be contemptuous, but only after a warning to correct the offense. 17 Am. Jur. 2d Contempt §56.
- Refusal to answer questions on the witness stand is contemptuous if no privilege applies. Hentz v. State, 496 So.2d 668, 675 (Miss. 1986).
- Disrespectful language in a motion or in argument may be found to be contempt, but if the language is personally insulting to the judge, he should recuse and allow another judge to adjudicate it as constructive criminal contempt. Purvis v. Purvis, 657 So.2d 794, 797 (Miss. 1995).
- Tardiness or failure to appear at the appointed time. Wyssbrod v. Wittjen, 798 So.2d 352 (Miss. 2001). See, also UCCR 1.05.
- Arriving late for a hearing, even though the attorney had a conflict with another court-scheduled matter, where the attorney did not notify the second court of the conflict and request a rescheduling. Alviers v. Bay St. Louis, 576 So.2d 1256, 1257 (Miss. 1991).
- Refusal to attend a court-ordered proceeding without justifiable cause. In re Hampton, 919 So.2d 949, 955 (Miss. 2006).
- Contumacious objections that show a refusal to accept the rulings of the court may be contempt, although it is improper for the court to threaten contempt for a single, timely objection. Young v. State, 679 So.2d 198, 205 (Miss. 1996).
- Refusal to produce documents in violation of a court order to do so, where no provilege applies. Morgan v. Thomas, 448 F.2d 1256 (5th Cir. 1971). Note that this may also be dealt with as civil contempt.
- Drunkenness in the court room that interferes with the court. Neely v. State, 98 Miss. 816, 54 So.2d 315 (1911).
- Subornation of perjury. 17 Am. Jur. 2d Contempt §79. But, see Corr v. State, where a false affidavit filed with the clerk for return of process was held to be indirect contempt.
APPROACHING ZERO TOLERANCE
October 2, 2012 § 7 Comments
If you have gotten the impression that many chancellors are tightening down on the handling of fiduciary matters, it’s not just your imagination or overactive paranoia glands. More and more chancellors across the state are approaching zero tolerance for sloppy handling of estates, guardianships and conservatorships.
There are several reasons for this. One, and perhaps paramount, is that it is the judge’s job. But here are several others:
- There is the case of attorney Michael J. Brown, of Hinds County, who helped fritter away hundreds of thousands of dollars of a ward’s account.
- There is the case of the lawyer in jail in Rankin County who has been unable to account for fiduciary funds, and who will begin serving federal and state sentences therefor as soon as Judge Grant releases him from his civil contempt sentence — which is contingent on his accounting.
- There is the case of another lawyer in Rankin County who refuses to account for fiduciary funds, and who is likewise cooling his heels in the county bastille until he complies.
- There is the case of the lawyer on the coast who committed suicide when the questions started floating about how fiduciary matters in his charge were handled, and the last I heard the missing funds are more than $1.2 million.
The genius of our fiduciary system in Mississippi is that it creates a three-tiered system of protection for the ward or beneficiaries. The fiduciary is bonded (in most cases) and is accountable to the court; the lawyer works with the fiduciary, providing advice, guidance and oversight to see that the law is followed; and the court authorizes actions, demands and approves accounts and inventories, and scrutinizes the actions of both the fiduciary and the ward. Whenever any one tier fails, it is up to the other two to catch and fix the failed part. When judges wink at incompetent legal work in fiduciary matters we are shirking our duty to innocent beneficiaries, creditors and people who are unable to protect their own interests.
It’s not the stuff of movies and detective novels that money is stolen from fiduciary accounts. I have seen it right here in our little backwater, and I am sure it is happening and has happened in yours (not meaning that you live in a backwater).
Fraud and mishandling of funds thrive in the sloppy handling of fiduciary matters. When you leave it up to the fiduciary to go about unaccounted for and unadvised and unsupervised, you are inviting trouble. And chancellors are becoming ever more vigilant and intolerant.
IS THERE AN INDEPENDENT CAUSE OF ACTION FOR TPR?
October 1, 2012 § 5 Comments
Termination of parental rights pursuant to MCA 93-15-103 has long been treated, at least in this chancery district, as an independent cause of action that may be invoked whenever the criteria of 93-15-103(3) are met.
The COA decision in LePori v. Welch (discussed here in a previous post dealing with other points), decided June 26, 2012, though, calls that theory into question.
In his opinion for the court, Judge Maxwell addresses the appellant’s argument that the chancellor failed to address the “substantial erosion” factor set out in 93-15-103(3)(f). He said, beginning in ¶5:
But the grounds for termination in section 93-15-103(3) are to be considered only when the circumstances of section 93-15-103(1) are met:
When a child has been removed from the home of its natural parents and cannot be returned to the home of his natural parents within a reasonable length of time because returning to the home would be damaging to the child or the parent is unable or unwilling to care for the child, relatives are not appropriate or are unavailable, and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them, the grounds listed in subsections (2) and (3) of this section shall be considered as grounds for the termination of parental rights. The grounds may apply singly or in combination in any given case.
Miss. Code Ann. § 93-15-103(1).
¶6. It is clear from the plain language of section 93-15-103—as well as the cases that have applied this section—the concern of the statute is when a parent’s rights may be terminated in order for the child to be adopted. E.g., S.R.B.R. v. Harrison County Dep’t of Human Servs., 798 So. 2d 437, 445 (¶32) (Miss. 2001) … [Emphasis in original text]
The above language is not the actual holding of the case, but it is about as clear a statement that you will find interpreting the intent and purpose of 93-15-103(1), which is the threshold statute for TPR. What Judge Maxwell is saying, in my opinion, is that there is no cause of action for TPR that is independent of an adoption. TPR is done ” … in order for the child to be adopted … ,” in Judge Maxwell’s own words.
I wonder, though, what this language of the statute means in light of that interpretation: ” … and when adoption is in the best interest of the child, taking into account whether the adoption is needed to secure a stable placement for the child and the strength of the child’s bonds to his natural parents and the effect of future contacts between them …” What about where the court finds that adoption is not needed to secure a stable placement? Does that cancel out the TPR action if all the criteria are proven?
My emphatic answer is … I don’t know. What I do know is that nine judges of the COA joined in Judge Maxwell’s opinion, and that one concurred ” … in part and in the result without separate written opinion,” making it 99% unanimous. So the mind of the COA on the subject would appear to be clear.
I also know that this would appear to change the way we have done business in this district, and maybe in yours, too. Stay tuned for further developments.
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