Wednesday, April 26, 2017

Punishing the Profane

May 6, 2013 by Adrienne Meiring

Using Criminal Contempt Powers in an Ethical Manner

Adefendant spews forth a string of curses during his initial hearing. A cell phone goes off in a busy courtroom, but no one will take responsibility for the disruption. When submitting a check to pay her fine, a litigant writes an expletive (expressing how she feels about the court) in the memo section.

Judges often face disrespectful and disruptive behavior in the courtroom. While a judge certainly can and should safeguard the integrity, security, and decorum of the court, a judge must be careful when exercising contempt powers to not turn an attempt to maintain courtroom control into an abuse of judicial power. The goal of contempt is to restore the court’s authority and dignity in a fair, impartial, and dispassionate manner. This article examines how a judge may use his or her direct contempt powers without running afoul of the Code of Judicial Conduct.

Legal Authority and Types of Contempt

Judges are empowered, both by statute and the common law, with the power to punish individuals for contemptuous acts that oppose the court’s authority, justice, and dignity. See Hopping v. State, 637 N.E.2d 1294, 1296-97 (Ind. 1958); I.C. § 34-47-2-1 et seq. However, two considerations are important for a judge to evaluate when making a contempt finding, as different due process procedures are required depending on the type of contempt found.

First, what is the intended purpose of the contempt sanction? Is it to punish or to compel compliance with a court order? Civil contempt involves a violation of a court order resulting in a proceeding for the benefit of an aggrieved party (i.e. child support). Thus, any penalty in a civil contempt proceeding must be coercive or remedial in nature. In re Direct Criminal Contempt Proceedings, 864 N.E.2d 425, 428 (Ind. Ct. App. 2007). Criminal contempt involves any act directed against the dignity and authority of the court which obstructs the administration of justice and tends to bring the court into disrepute. Id. A criminal contempt sanction is punitive in nature since the purpose is to “vindicate the authority of the court.” Id.

Second, does the judge have personal knowledge of the contempt? Direct contempt includes any act committed in the presence of the court that manifests disrespect for and defiance of the court. Id. Acts of direct contempt may be punished summarily, without formal charges or an evidentiary hearing. But a judge still must state on the record what contemptuous act occurred and should give the individual an opportunity to apologize or explain before the judge pronounces sentence. Finally, the judge must reduce the finding to writing. I.C. § 34-47-2-4.

Indirect contempt concerns acts that undermine court orders or activities but are outside the judge’s personal knowledge. In re Direct Criminal Contempt Proceedings, 864 N.E.2d at 428. Indirect contempt proceedings require appointment of a special judge in some circumstances, and the defendant is entitled to additional due process protections such as notice and an opportunity to be heard. I.C. § 34-47-3-5 et seq.

The focus of this article is on direct criminal contempt sanctions.

Cases When Judges Stepped Over the Line

Although most judges appropriately impose contempt sanctions or merely make a legal error that is best corrected in the appellate process (i.e. not reducing a finding to writing), judicial conduct commissions and state supreme courts have found that some judges’ contempt sentences were such gross abuses of power that the judges violated ethical rules.

The most egregious cases have been when judges summarily (and unfairly) sentenced individuals to jail for contempt with no due process. In Matter of Restaino, 890 N.E.2d 224 (N.Y. 2008), a city court judge was removed from office for jailing 46 court observers when a cell phone began ringing and no one would take responsibility for the disruption. Similarly, in Matter of Sanchez, Order (N.M., May 17, 2011), the New Mexico Supreme Court accepted a judge’s permanent resignation and ordered that he never hold judicial office for jailing 32 courtroom spectators, only some of whom participated in a brief courtroom disturbance involving shouts of support for a defendant.

Other judges have been disciplined for failing to act impartially when imposing a contempt sanction. A Washington state judge was publicly reprimanded and ordered to attend additional training on domestic violence awareness/prevention for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given the police. In re Shelton, Order of Reprimand (Wash. State Comm’n on Jud. Cond., July 8, 2011); see also Matter of Singer, Determination (N.Y. State Comm’n on Jud. Cond., July 1, 2009) (judge publicly reprimanded for holding an attorney in contempt for not disclosing the address of a domestic violence shelter where the litigant was residing when the attorney had a legal basis for withholding the information).

Judges also have been disciplined for imposing contempt sanctions in a manner that escalated the situation and brought the judiciary in disrepute. In Matter of Toth, 978 A.2d 914 (N.J. 2009) a traffic judge was publicly reprimanded for engaging in an auction-style dialogue with an uncivil litigant whereby the judge increased the contempt sentence each time the litigant opened his mouth. See also Commission on Judicial Performance v. Littlejohn, 62 So. 3d 968 (Miss. 2011)(judge publicly reprimanded for ordering an attorney incarcerated for contempt when the attorney refused to recite pledge of allegiance). Other judges have received discipline for using their contempt powers due to personal animus. See Matter of Bridges (N.C. Jud. Stds. Comm’n, Aug. 24, 2009) (judge publicly reprimanded for issuing an order to show cause to a woman as to why she should not be held in criminal contempt for distributing political flyers alleging the judge was corrupt); Matter of Gordon, 924 A.2d 512 (N.J. 2007)(judge received a public reprimand for conducting summary contempt proceedings against a litigant who had written profane remarks on checks sent to pay fines).

Best Practices

So what should the ethically-minded judge do to avoid some of the ethical pitfalls that present themselves when an individual, in the heat of the moment, engages in disrespectful, profane behavior in court and directs those responses at the judge? In other words, the person engages in conduct that is subject to direct criminal contempt. The following is a useful checklist for the ethically-minded judge:

  • Keep the ego in check. A contempt finding is not about vindicating the judge personally, it is about restoring the authority of the court. If a judge needs a short break (less than five minutes) in order to be able to dispassionately render a decision, he should take it. Just like a parent, a judge shouldn’t punish when he’s really angry!
  • Make a written record about the contemptuous conduct and the sanction being imposed: (1) state the case being heard, (2) describe what happened (be specific), (3) make a finding about whether the conduct was done in defiance, in disrespect, or against the dignity of the court, (4) describe the resulting disturbance to the court’s business, (5) include a written order of the sanction being imposed, and (6) have the clerk or court staff make a CCS entry of the document pursuant to TR 77.
  • Give the person an opportunity to explain, apologize, or purge.
  • Make findings to support the finding of contempt (describe any evidence, i.e. who observed the contemptuous conduct) before announcing the sanction (fine or incarceration).
  • Inform the person of the right to appeal the contempt sentence.
  • Make sure there is a written record.

Then, after following all of these steps, a judge should do one last thing: take a moment to make sure that she is seeing the forest from the trees. Just because a judge has the power to find someone in contempt does not mean she should always use it. Going back to the first example described in this article, certainly a defendant who uses profanity in the courtroom merits a contempt sentence, right? But, what if the defendant is known to have a mental illness and he appears to not have received his prescribed medication? Might that mitigate the contemptuous conduct? Perhaps there may be other, more effective ways to restore order to the courtroom in that case.

When imposing a contempt sanction, a judge might well want to heed the infamous words of caution from Spiderman’s Uncle Ben Parker: “With great power also comes great responsibility.” My wish for all of the ethically-minded judges out there: use your power wisely.

*A special thanks to Judge John Potter, Jasper Circuit Court, whose contributions to and advice on this article were tremendous.

Photo of Adrienne MeiringIf any judge needs a consultation regarding the subject of this article or any other matter involving judicial conduct, contact Adrienne Meiring at 317-232-4706 or