CONTEMPT - PowerPoint Presentation

Slide1

CONTEMPT

Creed McGinleySlide2

OBJECTIVES

To define and analyze the source of contempt powers.

To distinguish between criminal and civil contempt.To identify limitations on our contempt powers.

To provide judges with basic background and procedural checklists to deal with contempt situations.Slide3

CONTEMPT

Introduction

“ O! It is excellent

To have a giant’s strength; but it is tyrannous

To use it like a giant.”Slide4

A Court must possess the authority

to protect itself against those who disregard its dignity and authority.Slide5

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CONTEMPT Power is exercised to. . .

Maintain order and decorum

Punish for disrespect shown to Court or its orders

Enforce the Court’s writs & orders

Punish acts which obstruct the administration of justiceSlide6

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“Walk softly and carry a big stick”Theodore Roosevelt

“Walk tall and carry a big stick”

-- Buford

PusserSlide7

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put a black robe

on them and

it will come out.”

- - Dickie Jerman

“If there is any s-- of a

b---- in a person,Slide8

History & Source of

Contempt Powers

Statutory

Scott v State

, 109 Tenn, 390

,

71 S.W. 824 (1902)State v Beeler S.W.3d 511 (2012)

Inherent

Loy v. Loy

, Tenn App 450, 222 SW 2d 873 (1949)Slide9

Statutory Authority & Punishments

General

- T.C.A.

§ 29-9-102 – Scope of Power

Power to issue attachments or inflict punishments exist in the following cases:

Willful Misbehavior

Willful Disobedience or Resistance

Abuse or Interference with . . .

The Jury

Any other act or omission (declared by law)Slide10

Statutory Authority & Punishments

Domestic

-

T.C.A.

§ 36-5-104

Failure to comply w/ child support order – Criminal Sanction

Profanity

- T.C.A. § 29-9-107

Profanely swears or curses in presence of court (Class C Misdemeanor)

Violation of Anti-Nuisance Injunction

-

T.C.A.

§ 29-3-111

Any person who enters or uses any building or place while closed under a preliminary or permanent injunctionSlide11

Statutory Authority & Punishments

Contempt

- T.C.A.

§ 16-1-103

For the effectual exercise of its powers, court is vested w/ power to punish for contempt (As provided in this Code section).

Punishment

- T.C.A. § 29-9-103

May be a Fine or Imprisonment or both Circuit, Chancery, & Appellate courts – Fine up to $ 50 & up to 10 days All other courts – Limited to fine of $ 10

Damages

-

T.C.A.

§ 29-9-105

Performance of forbidden act May be imprisoned until the act is rectified by returning to status quo or by payment of damages.Slide12

Statutory Authority & Punishments

Omission to Perform Act

-

T.C.A.

§ 29-9-104

Omission to perform an act which is in person’s power to perform.

May be imprisoned until act is performed.

Municipal Citation - T.C.A.

§ 29-9-108

Willful failure to appear in court w/o just cause

Fine of up to $ 10 and imprisoned for up to 5 days

Violation of Order of Protection

-

T.C.A.

§ 36-3-610

Violation of Order – In accordance with the law

No difference between general session’s and court of record’s authority provided general session’s judge is a licensed attorney A civil penalty of $ 50 may be assessedSlide13

Court Rule

Tennessee Rules of Criminal Procedure - Rule 42

Criminal Contempt

Summary Disposition

Disposition upon Notice & HearingSlide14

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Court Rule

Tennessee Rules of Civil Procedure

P. 45.06 – Contempt

P. 65.06 –

Enforcement of Restraining Orders & InjunctionsTennessee Rules of Juvenile ProcedureP. 1(b)Slide15

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Terms & Concepts

Direct v. Indirect ContemptDirect

Committed in presence of judge & punishable summarily

Indirect

Not in presence of judge & only after notice of hearing

Criminal v. Civil Contempt

(Depends on the purpose for which the power is exercised)

Criminal

Primary to preserve Court’s authority & punish for disobedience of its orders

Civil

Primary is to provide a remedy or injured suitor & coerce compliance with an orderSlide16

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Terms & Concepts

Judge Koch describes the difference as:Civil contempt

Intended to benefit the litigant

Imposed to compel compliance (parties in contempt may purge themselves through compliance)

Criminal contemptIntended to punish for an offense against the authority of the court

Imposed as punishment for failure to comply (contemptuous party cannot be freed through eventual compliance)Slide17

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Terms & Concepts

ContemnorsAttorneys

Jurors

Witnesses

Litigants

Domestic“Professional” (repeaters who buck system)Slide18

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CONSTITUTIONAL RIGHTS & DUE PROCESS

Right to Attorney –

Sevier v. Kenneth Turner

, 742 F 2d 262 (6

th

Cir 1984)Mastin v. Fellerhoff, 526 F Supp 969 (SD Ohio 1981)

Conflict Free Prosecutor

–

Wilson v. Wilson

, 984 SW 2d 898 (Tenn 1998)

Young v US ex rel Vuitton

, 481 US 787, 107 S Ct 2124 (1987)

Confrontation

–

Guthrie v Oldham

, No 85-118-III (Tenn Crim App. Filed May 9, 1985)

Limitations on Powers & Right of DefendantsSlide19

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Limitations on Powers & Right of Defendants

CONSTITUTIONAL RIGHTS & DUE PROCESS

Notice

–

United States v. United Mine Workers of America

, 330 US 258, 297, 67 S Ct 677 (1947)

Storey v. Storey

, 835 SW 2d 593, 599-600 (Tenn App 1992)

Burden of Proof

–

Criminal Contempt

– Beyond a reasonable doubt.

State ex rel Anderson v. Daughery

,

137 Tenn 126, 191 SW 974 (1916)

O’Brien v. State ex rel Bibb

,

26 Tenn App 270, 170 SW 2d 931 (1943)

Civil Contempt –

Clear & convincing evidence.

Oriel v. Russell

, 278 US 358, 364,49 S Ct 173 (1929)

Wright, supra

at

§ 3-16. P 136Slide20

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Limitations on Powers & Right of Defendants

CONSTITUTIONAL RIGHTS & DUE PROCESS

Right to Remain Silent

–

Gompers v. Bucks

Stove, 221 US 418,444, 31 S Ct 492 (1991)

Kornick v. Kornick

, 3 Tenn Civ App 41, 44 (1931)

Double Jeopardy

–

Most courts have previously held that double jeopardy is no bar to conviction for contempt & a criminal conviction for essentially the same act.

Maples v. State

, 565 SW 2d 202,203 (Tenn 1978)Slide21

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Limitations on Powers & Right of Defendants

NO RIGHT TO TRIAL BY JURY

Dyke v. Taylor Implement Manufacturing

Company 391 US 216, 88 S Ct 1472 (1968)

Pass v State

181 Tenn 613, 183 S W 2d 1, (1944)

Robinson v. Gaines, 725 SW 2d 992, 695 (Tenn Crim App 1986)

CAVEAT

– There is also no right to a jury trial in a civil contempt proceeding.

Weinstein v. Heinberg,

490 SW 2d 692 (Tenn App 1992)

Slide22

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Limitations on Powers & Right of Defendants

RIGHT TO UNBIASED JUDGE

State v. Swisher,

676 S W 2d 576 (Tenn Crim App1984)

Defendant does not disrespect or criticize trial judge –

Trial judge not required to disqualify himself.

State v. Green,

708 S W 2d 424 (Tenn Crim App 1986)

Three contempt charges involved criticism of judge –

Judge should have recused himself.Slide23

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Limitations on Powers & Right of Defendants

CONTEMPT & AN ERRONEOUS ORDER

Principle underlying contempt powers so strong –

Even erroneous orders must be obeyed or risk contempt.

Walker v. City of Birmingham,

388 US 307, 98 S Ct (1967)

State v. Sammons

, 656 S W 2d 86d2, 869 (Tenn Crim App 1982)

Nucular Fuel v. Local Union,

719 S W 2d 550, 552 (Tenn Crim App 1986)

Overnite Transportation Co. v. Teamsters Local Unio No 480 et al,

TN Supplement May 16, 2005) Slide24

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DispositionFrom ABA Standards for Criminal Justice 2d Ed. 1980

STANDARD 6-4.2

Admonition & Warning

–

No sanction other than censure unless:

Character or Acts clearly contemptuous

Conduct warranting sanction preceded by a clear warning about impermissibility of conduct and potential sanctionsSlide25

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DispositionFrom ABA Standards for Criminal Justice 2d Ed. 1980

STANDARD 6-4.3

Notice of Intent to Use Contempt Power: Postponement of Adjudication

Judge should inform alleged offender of intention to institute proceedings as soon as practicable.

Judge should consider advisability of deferring adjudication of contempt until after the trial unless prompt action is imperative.Slide26

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Disposition

From ABA Standards for Criminal Justice 2d Ed. 1980

STANDARD 6-4.4

Notice of Charge & Opportunity to be Heard

–

Before imposing punishment,

Offender should be given:

Notice of charges and

An opportunity to adduce evidence or argument relevant to guilt or punishment.Slide27

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Contempt for Violation of Orders

REQUIREMENTS

Knowledge of the order

Within court’s jurisdiction to make

Willful violation of order

State v. Green, 783 S W 2d 548 (Tenn 1990)

ORDERS INCLUDEDALL ordersNOT JUST final orders

Error or irregularity is not justification for not obeying

Need not be entered yetSlide28

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Contempt for Violation of Orders

PROBLEM AREAS

Contempt findings required

Orders may not put everyone on notice.

B.A.S.I.C v. Kemp,

947 F 2d 11 (1st Cir, 1991)Commissioner not always personally required to appear. Simerly v. Norris,

No 1071 (Tenn Crip App, March 26, 1987)

DEFENSES:

Lack of jurisdiction

Impossibility

Anticipatory Contempt.

Keeley v Massey,

No 02A01-9307-CH-00159 (Tenn App, W S, Feb 28, 1994)

Statute of LimitationsSlide29

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Cases of Special Interest

Criticism of Judges

Pro se litigant (In contempt)

“star chamber, hatchet court, crooked judge, kangaroo trial”

McGray v Adcox,

399 SW 2d 753 (Tenn, 1966)Lawyer criticizes judge in press (Not in contempt) No case pending & comment not about a particular case.

In re Hicky,

149 Tenn 344, 258 SW 417 (1923)

Admin of courts criticized

by lawyer (Contempt unsupported)

In re Snyder,

472 US 634, 105 S ct 2874 (1985)Slide30

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Cases of Special Interest

The Chicken Man

Contempt Conviction overturned because defendants dressed like chickens.

State v. Hodges,

695 SW 2d 171 (Tenn 1985)

Dead Beat Parent Who Won’t Work

(Even the lack of employment is no defense to the failure to actively seek & accept employment.)

Boyd v. Boyd,

8 T A M 1-12 (Tenn App E S 1982)

State ex rel Moore v. Owens,

15 T A M 11-17 (Tenn App M S Feb 7, 1990)

Street Vernacular

Witness in trial who referred to assailant as “chicken shit” should not have been held in contempt.

Eaton v. City of Tulsa,

415 US 697, 94 S Ct 1228 (1974)Slide31

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Attorney who refused appointment

Cases of Special Interest – Conduct of Lawyer

Lawyer constantly interrupts judge and during prosecutor’s argument, assumed a “crucifixion stance”

Lawyer in contempt for disrespect & misconductSlide32

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LATE TO COURT

Cases of Special Interest – Conduct of Lawyer

Secretary’s fault - No defense

State v. Richard Donnell,

9 TAM 7-38 (Tenn Crim App Dec 20, 1983)

Scheduling Conflict - Conviction ReversedNo intent for criminal contempt.

In re Edward Witt Chandler,

906 F 2d 248 (6

th

Cir 1990)

Business Destroyed by Fire previous night

Judge fined $ 25

United States v. Anonymous,

215 F Supp 111 (D.C. Tenn 1963)Slide33

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Cases of Special Interest – Conduct of Lawyer

No contact w/ witness by court order. Defense lawyer held in contempt following witness interview.

State v. Robert Friedman,

no 89-88-III (Ct Crim App March 8, 1990)

Two Lawyers fight in hall.

No contempt as not in presence of court (room). Fight in courtroom is different. Edwards v. Jameson,

679 S W 2d 195 (Ark 1984) Contra United States v. Patterson, 26 F 509 (6th

Cir 1886)

Court Order & Willful Violation

Attorney violates court order but claims

careless

not willful.

“OOPS” is not a valid defense.

In re Zimmerman,

No 85-331-III (Ct of Crim App Aug 7, 1986)Slide34

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Cases of Special Interest

Attorney Fees & ContemptJury in ContemptAdvice of Counsel as a DefenseSheriff’s Mistreatment of Pretrial Detainee

Perjury

Intoxication in CourtSlide35

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Cases of Special Interest

Contempt – Awarding of DamagesT-ShirtDeposition MisconductSlide36

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Direct Criminal Contempt

ELEMENTS Checklist (Rule 42(a))

Conduct occurs

in the presence

of the judge?

Actor knows or should the actor know that conduct is impermissible?Actor knows the consequences of continuing?

Conduct is willful or intentional?Slide37

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Direct Criminal Contempt

ELEMENTS

Checklist (Rule 42(a))

Is the conduct:Obstructive?

Disruptive?Interruptive?Derogatory

Are immediate actions necessary to maintain order & decorum or to preserve the authority of the judge?Slide38

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Direct Criminal Contempt

DISPOSITION Checklist (Rule 42(a))

Take a recess!

Make findings on the record for each of the elements of direct criminal contempt.

Give the actor an opportunity to respond to the findings.

Make a finding of guilt.

Give the actor an opportunity for allocution.Slide39

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Direct Criminal Contempt DISPOSITION

Checklist (Rule 42(a))

Summarily impose penalties:

Statutory fine (

<

$50)

Sentence (< 10 days)

Other restrictive sanctions

Order of Contempt shall:

Recite the facts,

Be signed by judge, and

Entered into the record.Slide40

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Indirect Criminal Contempt

ELEMENTS Checklist (Rule 42(b))

Conduct occurs

outside the presence

of the judge?

Actor knows or should the actor know that conduct is impermissible?Actor knows the consequences of continuing?

Conduct is willful or intentional?Slide41

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Indirect Criminal Contempt

ELEMENTS

Checklist (Rule 42(b))

Is the conduct:Obstructive?

Disruptive?Interruptive?Derogatory

Are immediate actions necessary to maintain order & decorum or to preserve the authority of the judge?Slide42

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Indirect Criminal Contempt

DISPOSITION Checklist (Rule 42(b))

Take a recess!

Give

notice

of time & place of hearing allowing reasonable time for preparation of defense AND

state the essential facts constituting criminal contempt charged. (May be oral in open court or by charging instrument.)If charge involves disrespect to or criticism of judge,

recusal mandatory

.Slide43

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Indirect Criminal Contempt DISPOSITION

Checklist (Rule 42(b))

Make finding of guilt beyond a reasonable doubt.

Upon finding of guilt by court, order to be entered fixing punishment:

Fine (

<

$50)Jail Sentence (< 10 days)Slide44

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Direct Contempt - Civil

ELEMENTS Checklist

Conduct occurs

in the presence

of the judge?

Actor knows or should the actor know that conduct is prohibited or directed by the order of the court?

Actor knows the consequences of continuing?Conduct is willful or intentional?

Is punishment necessary to compel compliance w/ order?Slide45

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Direct Contempt - Civil

DISPOSITION Checklist

Take a recess!

Make findings on the record of each element.

Make a finding of guilt.

Give actor final opportunity to comply & to purge the contempt.

Summarily impose any reasonable fine and/or sentence which

TERMINATES

upon compliance w/ the order.Slide46

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Indirect Contempt - Civil

ELEMENTS Checklist

Conduct occurs outside

the presence

of the judge?

Actor knows or should the actor know that conduct is prohibited or directed by the order of the court?

Actor knows the consequences of continuing?Conduct is willful or intentional?

Is punishment necessary to compel compliance w/ order?Slide47

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Indirect Contempt - Civil

DISPOSITION Checklist

Upon notice of violation of court’s order, notice the actor to appear and to show cause why he/she should not be held in contempt.

After hearing, make findings on the record of each element.

Make a finding of guilt.

Grant actor a reasonable time to purge the contempt.

Upon a failure to purge, impose any reasonable fine and/or sentence which

TERMINATES

upon compliance w/ the order.Slide48

Where to Get More Information

General Reference Materials on ContemptRaybin,

Criminal Practice and Procedure § 24. 14-15 (1985)

Pivnick,

Tennessee Circuit Court Practice

§ 3-16 (1991)

Burch, Trial Handbook For Tennessee Lawyers § 49-54 (1980)Wright,

Federal Practice and Procedure (Criminal) § 701-713 (2nd Ed.1982)

Feldman,

Criminal Offenses and Defenses in Tennessee

, p. 122-133 (1988)

Garrett,

Tennessee Divorce, Alimony and Child Custody

§ 16-2-4 (1995 Ed)Slide49

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When a ship

misses the harbor,

it

is

rarely

the fault

of the

HARBOR!!