judge robert n. scola, jr. february 10, 2010. identify types of contempt advise judges how to...

Judge Robert N. Scola, Jr.

February 10, 2010

• IDENTIFY TYPES OF CONTEMPT

• ADVISE JUDGES HOW TO CONDUCT HEARING FOR EACH KIND OF CONTEMPT

• PREPARE WRITTEN ORDER

• IMPOSE APPROPRIATE SANCTIONS

WHAT IS CONTEMPT?

•Refusal to obey legal order, mandate or decree by Judge. Section 38.23 Florida Statutes

•An act tending to embarrass, hinder or obstruct the court.

KINDS OF CONTEMPT

EVERY CONTEMPT IS EITHER

•DIRECT OR INDIRECT

AND

•CRIMINAL OR CIVIL

DIRECT V. INDIRECT CONTEMPT

•DIRECT CONTEMPT OCCURS IN THE PRESENCE OF THE COURT

•INDIRECT CONTEMPT OCCURS OUTSIDE THE PRESENCE OF THE COURT

CRIMINAL V. CIVIL CONTEMPT•CRIMINAL CONTEMPT IS DESIGNED TO

PUNISH OR VINDICATE THE AUTHORITY OF THE COURT

•CIVIL CONTEMPT IS DESIGNED TO COMPEL COMPLIANCE WITH A COURT ORDER OR COMPENSATE AGGRIEVED PARTY

•THERE CAN BE CRIMINAL CONTEMPT IN A CIVIL CASE OR CIVIL CONTEMPT IN A CRIMINAL CASE

DIRECT CIVIL CONTEMPT

•OCCURS IN THE PRESENCE OF THE COURT

•NO STATUTE, RULE OR CASE LAW SPECIFICALLY AUTHORIZING

•ONLY MENTIONED IN ONE CASE

SCENARIO 1

•AN INDEFINITE PERIOD OF INCARCERATION IS A VALID SANCTION TO COERCE COMPLIANCE WITH A COURT ORDER

•ORDER OF INCARCERATION MUST CONTAIN PURGE PROVISION

FORMER HUSBAND REFUSES TO OBEY DIRECT ORDER IN OPEN COURT TO SIGN FORM NAMING FORMER WIFE AS BENEFICIARY OF PENSION. CAN HE BE INCARCERATED UNTIL HE SIGNS?

SCENARIO 2

•CIVIL CONTEMPT IS MEANT TO COERCE, NOT PUNISH

•THE CONTEMNOR MUST HAVE THE PRESENT ABILITY TO COMPLY: HE MUST “HOLD THE KEY TO HIS OWN JAIL CELL” OR THE CONTEMPT BECOMES CRIMINAL CONTEMPT

FORMER HUSBAND RETIRES AND NOW CANNOT CHANGE BENEFICIARY. MUST HE BE RELEASED FROM

JAIL?

DIRECT CRIMINAL CONTEMPT•Occurs in the presence of the Judge

“Under the eye of the court”•Summary proceedings•Reserved for exceptional circumstances,

e.g. acts that threaten a judge, disrupt a hearing or obstruct court proceedings

•Must give contemnor opportunity to explain conduct before adjudication and must give contemnor opportunity to present mitigating circumstances before sentence

•Must be proven beyond reasonable doubt

SCENARIO 4VINNY FIRMLY BELIEVES THAT THE

JUDGE’S ORDER IS LEGALLY INCORRECT AND THAT IS WHY HE HAS VIOLATED IT.

CAN JUDGE STILL HOLD VINNY IN CONTEMPT?

•EVEN LEGALLY INCORRECT ORDER MUST BE FOLLOWED– PARTY MAY APPEAL

SCENARIO 5

•Rule 3.830 provides for summary proceeding in direct criminal contempt; taking recess converts action into indirect criminal contempt with additional procedural safeguards

PRO SE LITIGANT ASKS FOR A RECESS SO THAT HE CAN RETAIN COUNSEL. SHOULD

REQUEST BE GRANTED?

SCENARIO 6:COURT IMPOSES THE FOLLOWING

SENTENCE:

• 6 MONTHS IN JAIL• $750.00 FINE• ATTORNEY’S FEES TO OTHER PARTY• ORDER RESTRICTING VINNY FROM

APPEARING IN COURT AGAIN WITHOUT CO-COUNSEL

• REQUIRING VINNY TO WRITE 1000 TIMES “I WILL NOT DISOBEY THE JUDGE”

•JAIL SENTENCE OF 6 MONTHS: •775.02 AUTHORIZES SENTENCE NOT TO

EXCEED ONE YEAR FOR CONTEMPT.•NO JURY REQUIRED IF SENTENCE IS SIX

MONTHS OR LESS•FINE OF $750.00:• FINE MAY NOT EXCEED $500.00; 775.02•ATTORNEY’S FEES:•AWARD OF ATTORNEY’S FEES FOR

COURT’S WASTED TIME NOT PROPER FOR CRIMINAL CONTEMPT

ARE THE FOLLOWING SANCTIONS PROPER?

•RESTRICT ATTORNEY FROM APPEARING WITHOUT CO-COUNSEL:

• COURT MAY NOT RESTRICT ATTORNEY FROM PRACTICE OF LAW BY REQUIRING ATTORNEY TO APPEAR WITH CO-COUNSEL

•WRITING 1000 TIMES:• IMPROPER SANCTION: IF CONTRIVED

TO INSTILL CONTRITENESS-UNNECESSARY. IF CONTRIVED FOR ANY OTHER PURPOSE-ABUSE OF DISCRETION

SCENARIO 7

•THE JUDGMENT OF GUILT OF CONTEMPT SHALL INCLUDE A RECITAL OF THOSE FACTS UPON WHICH THE ADJUDICATION IS BASED:

•THESE COMMENTS ARE CONCLUSIONS, NOT FACTS.

•ORDER WAS LEGALLY INSUFFICIENT

VINNY’S JUDGE WRITES THE FOLLOWING ORDER: “VINNY HAS ENGAGED IN INJUDICIOUS, UNETHICAL AND INTEMPERATE CONDUCT.” IS

THIS SUFFICIENT?

ELEMENTS OF PROPERLY WRITTEN ORDER

• RECITATION OF SPECIFIC FACTS UPON WHICH THE CONTEMPT WAS BASED

• DEFENDANT AFFORDED OPPORTUNITY TO PRESENT MITIGATING CIRCUMSTANCES

• ADJUDICATION OF GUILT FOR CONTEMPT• SENTENCE IMPOSED• ADVISE OF RIGHT TO APPEAL WITHIN 30

DAYS AND RIGHT TO APPOINTED COUNSEL FOR APPEAL

SCENARIO 8MAY WITNESS BE HELD IN CONTEMPT

FOR PERJURY

• MERE FACT THAT COURT BELIEVES ONE WITNESS OVER ANOTHER IS INSUFFICIENT TO ESTABLISH CONTEMPT

• WHERE WITNESS’ TESTIMONY IN OPEN COURT WAS “DIAMETRICALLY OPPOSITE” TO HIS OWN PREVIOUS TESTIMONY, OK TO HOLD IN CONTEMPT

SCENARIO 9

IS DISRUPTION IN HALLWAY OUTSIDE COURT CONTEMPT?

•THERE MUST BE EVIDENCE THAT THE WORDS WERE DIRECTED AT THE COURT OR INTENDED TO INTERRUPT OR HINDER JUDICIAL PROCEEDINGS

•WAS REMARK CALCULATED TO LESSEN COURT’S AUTHORITY OR DIGNITY?

•WHERE DEFENDANT KICKED DOOR AND TOLD BAILIFF “F … YOURSELF” OK TO HOLD IN CONTEMPT: CALCULATED TO LESSEN COURT’S AUTHORITY OR DIGNITY

SCENARIO 10CAN DEFENDANT BE HELD IN CONTEMPT

FOR SHOWING UP IN COURT WITH MARIJUANA IN SYSTEM?

• NO. THERE WAS NO EVIDENCE HE WAS UNDER THE INFLUENCE IN COURT OR HAD VIOLATED A COURT ORDER

• HOWEVER, DEFENDANT WHO PASSED OUT IN COURT BECAUSE HE “DID A LITTLE COKE” THAT MORNING COULD BE IN CONTEMPT BECAUSE HE OBSTRUCTED ADMINISTRATION OF JUSTICE

SCENARIO 11

CAN ENTIRE STATE ATTORNEY’S OFFICE BE HELD IN CONTEMPT OF COURT?

•ANY ACTIONS BY OTHERS IN THE SAO WOULD HAVE OCCURRED OUTSIDE THE PRESENCE OF THE COURT

SCENARIO 12

ONCE TRIAL RESUMES, JURY RETURNS VERDICT FOR DEFENDANTS. VINNY POUNDS TABLE AND YELLS “YES!!”

•UNLESS GIVEN SPECIFIC DIRECTIONS NOT TO DISPLAY REACTION TO VERDICT, CANNOT HOLD IN CONTEMPT

CAN HE BE HELD IN CONTEMPT FOR OUTBURST?

INDIRECT CIVIL CONTEMPT

• Occurs outside presence of the court•Meant to coerce compliance with court

order or compensate party•Willful refusal despite present ability to

comply•Contemnor “holds keys to his jail cell”•Because it is civil and not criminal,

contemnor is not entitled to the same due process rights

•INITIAL BURDEN IS ON MOVANT TO SHOW:•A. PRIOR COURT ORDER•B. FAILURE TO PAY

•THERE IS A PRESUMPTION BASED UPON PRIOR COURT ORDER OF ABILITY TO PAY

•BURDEN THEN SHIFTS TO RESPONDENT TO SHOW INABILITY TO PAY

SCENARIO 13

MOTHER FAILS TO PAY CHILD SUPPORT AND PRESENTS NO EVIDENCE OF

INABILITY TO PAY

•IF COURT FINDS A WILFUL VIOLATION, THERE MUST BE A SEPARATE, AFFIRMATIVE FINDING OF PRESENT ABILITY TO PAY THE PURGE AMOUNT

•COURT MUST SPECIFICALLY IDENTIFY THE SOURCE OF THE FUNDS AVAILABLE TO PAY THE PURGE AMOUNT

SCENARIO 13 (CONTINUED)

SCENARIO 14

• IF CONTEMNOR WILLFULLY DIVESTS HERSELF OF ABILITY TO COMPLY THROUGH HER OWN FAULT, WITH INTENT AND PURPOSE OF VIOLATING COURT ORDER, THIS IS NOT CIVIL CONTEMPT BECAUSE SHE NO LONGER HAS THE ABILITY TO COMPLY

•THIS WOULD CONSTITUTE INDIRECT CRIMINAL CONTEMPT

MOTHER SPENDS MONEY AT CASINO INSTEAD OF PAYING COURT ORDERED SUPPORT

SCENARIO 15

MAY CONTEMPT HEARING BE HELD AND INCARCERATION BE IMPOSED WHERE

CONTEMNOR FAILS TO APPEAR AT HEARING

• IN INDIRECT CIVIL CONTEMPT PROCEEDING:

•IF FATHER FAILS TO APPEAR AT HEARING AFTER PROPER NOTICE TO APPEAR, HE MAY BE HELD IN CONTEMPT AND A WRIT OF BODILY ATTACHMENT ISSUED

SCENARIO 16

IS ADDITIONAL HEARING REQUIRED WHEN FATHER IS ARRESTED 30 DAYS LATER?

•A CIVIL CONTEMNOR IS ENTITLED TO A HEARING TO DEMONSTRATE INABILITY TO COMPLY WITH PURGE PROVISIONS EVEN AFTER CONTEMPT…

•PARTICULARLY WHERE ORDER OF CONTEMPT WAS ENTERED A SUBSTANTIAL PERIOD OF TIME BEFORE ARREST

SCENARIO 17

MUST CONTEMPT BE PROVEN BEYOND REASONABLE DOUBT WHERE JAIL

SENTENCE IS IMPOSED?

•BURDEN OF PROOF FOR CIVIL CONTEMPT IS PREPONDERANCE OF THE EVIDENCE, REGARDLESS OF THE SANCTION

SCENARIO 18

MAY RETROACTIVE AND FUTURE FINES BE IMPOSED TO COERCE COMPLIANCE WITH

COURT’S DISCOVERY ORDER?

•IF FINE IS RETROACTIVE WITHOUT PURGE PROVISION, IT BECOMES CRIMINAL CONTEMPT

•IF FINE IS TO COERCE OR COMPENSATE AND ALLOWS FOR PURGE PROVISION, IT IS APPROPRIATE INDIRECT CIVIL CONTEMPT

SCENARIO 19

MAY CONTEMNOR BE SENTENCED TO INDEFINITE PERIOD OF INCARCERATION

FOR FAILURE TO PAY IF SHE HAS THE PRESENT ABILITY?

•SENTENCE OF INCARCERATION FOR INDIRECT CIVIL CONTEMPT MAY BE FOR A FIXED OR INDEFINITE PERIOD

•BUT SET FOR STATUS PERIODICALLY

SCENARIO 20

MAY PARTY BE HELD IN CONTEMPT FOR FAILING TO PAY COURT ORDERED DEBT?

•DEBTS NOT INVOLVING SUPPORT CANNOT BE ENFORCED BY COURT’S CONTEMPT POWER

•IF MATTER RELATES TO COURT’S EQUITABLE DISTRIBUTION SCHEME, CONTEMPT IS NOT AVAILABLE

SCENARIO 21

IS PARTY ENTITLED TO COURT APPOINTED ATTORNEY FOR INDIRECT CIVIL CONTEMPT

WHERE A JAIL SENTENCE IS POSSIBLE

•THOUGH RESPONDENT HAS A RIGHT TO OBTAIN COUNSEL, 14TH AMENDMENT DOES NOT REQUIRE THE COURT TO APPOINT COUNSEL FOR INDIGENT CIVIL CONTEMNOR

SCENARIO 22

MAY COURT ORDER PAYMENT OF EXPENSE OF RENTAL CAR WHERE HUSBAND FAILED TO

COMPLY WITH COURT ORDER?

•CIVIL CONTEMPT PROCEEDINGS MAY BE USED TO EITHER:

•COMPENSATE INJURED PARTY FOR LOSSES SUSTAINED OR•COERCE OFFENDING PARTY TO COMPLY WITH PREVIOUS COURT ORDER

SCENARIO 23

MAY COURT CHANGE CUSTODY AS A SANCTION FOR VIOLATION OF A COURT ORDER

•CONTEMPT SHOULD NOT BE USED AS A BASIS FOR CHANGE OF CUSTODY

•ALL DECISIONS RELATING TO CUSTODY/VISITATION OF CHILDREN MUST BE MADE IN THE BEST INTEREST OF THE CHILDREN

ORDER OF INDIRECT CIVIL CONTEMPT

• STATE RESPONDENT HAS BEEN ADJUDICATED OF INDIRECT CIVIL CONTEMPT

•DATE OF ORIGINAL ORDER•AFFIRMATIVE FINDING OF WILLFUL VIOLATION•SPECIFIC FACTS OF VIOLATION•FINDING OF PRESENT ABILITY TO COMPLY•SEPARATE FINDING OF PRESENT ABILITY TO COMPLY

WITH PURGE PROVISIONS•SPECIFY SENTENCE (EITHER FIXED OR INDEFINITE)•SET PRECISE PURGE PROVISION•IDENTIFY SOURCE OF PURGE SATISFACTION

INDIRECT CRIMINAL CONTEMPT•This is a criminal charge and like any criminal

charge (except for direct criminal contempt) the full panoply of due process rights apply

•These rights include: right to counsel, right to jury trial (for more than 6 months jail)

•Designed to punish contemnor for conduct occurring outside presence of the court

•Burden of Proof: Beyond Reasonable Doubt

• YES, IF JUDGE HAS GOOD REASON TO BELIEVE SHE WILL NOT ATTEND HEARING, JUDGE SHOULD ISSUE WARRANT FOR CONTEMNOR’S ARREST OR WRIT OF BODILY ATTACHMENT

•UPON ARREST, CONTEMNOR IS ENTITLED TO BOND HEARING AND RELEASE UPON SAME CONDITIONS AS APPLY TO OTHER CRIMINAL CHARGES

SCENARIO 24

MAY JUDGE ORDER ARREST TO ENSURE APPEARANCE AT CONTEMPT HEARING?

• JUDGE MUST DISQUALIFY SELF ONLY IF THE CONTEMPT INVOLVES PERSONAL DISPRESPECT OR CRITICISM OF THE JUDGE

SCENARIO 25

MUST JUDGE RECUSE SELF FROM CONTEMPT PROCEEDINGS?

•ORDER TO SHOW CAUSE BASED UPON UNSWORN AFFIDAVIT WAS LEGALLY INSUFFICIENT

•THINK ABOUT AN INFORMATION OR INDICTMENT IN CRIMINAL CASE

SCENARIO 26

MUST ALLEGATIONS IN ORDER TO SHOW CAUSE BE MADE UNDER OATH?

•TRIAL COURT VIOLATED DEFENDANT’S RIGHTS BY NOT ALLOWING ARGUMENT

•DEFENDANT ENTITLED TO SAME CONSTITUTIONAL DUE PROCESS PROTECTIONS AS ANY OTHER CRIMINAL DEFENDANT

SCENARIO 27

MUST JUDGE ALLOW CLOSING ARGUMENTS IN NON-JURY INDIRECT

CONTEMPT TRIAL?

•INABILITY TO COMPLY IS A VALID DEFENSE UNLESS THE CONTEMNOR VOLUNTARILY CREATED THE INABILITY

SCENARIO 28

IS CLAIM OF INABILITY TO COMPLY A VALID DEFENSE TO CONTEMPT

•WHERE DEPUTY HAD TO BORROW DEPUTIES TO ASSIST IN THE COURTROOM, INSUFFICIENT EVIDENCE OF INTENT TO VIOLATE AN ORDER

•HOWEVER, THE MERE FACT THE CONTEMNOR SAYS HE DID NOT HAVE INTENT IS NOT BINDING

SCENARIO 29

IS LACK OF INTENT TO VIOLATE ORDER A VALID DEFENSE TO CONTEMPT

• WRITTEN JUDGMENT OF CONTEMPT MUST INCLUDE A WRITTEN STATEMENT OF THE FACTS

•HOWEVER, WHERE SUFFICIENT ORAL FINDINGS ARE MADE ON THE RECORD, WRITTEN FINDINGS OF FACT NOT REQUIRED FOR INDIRECT CRIMINAL CONTEMPT

•THERE MUST BE A COURT REPORTER PRESENT SINCE THIS IS A CRIMINAL PROCEEDING

SCENARIO 30

ARE WRITTEN FINDINGS NECESSARY IF COURT ANNOUNCES FINDINGS ORALLY ON THE

RECORD?

•INDIRECT CRIMINAL CONTEMPT PROCEEDING MUST FULLY COMPLY WITH RULE 3.840 AND DEFENDANT IS ENTITLED TO COURT APPOINTED COUNSEL IF INDIGENT

SCENARIO 31

IS CONTEMNOR ENTITLED TO AN APPOINTED ATTORNEY?

•COURT MUST CONSIDER ALTERNATIVE SANCTIONS TO SECURE DETENTION

•ONLY UPON FINDING SUCH WOULD BE INAPPROPRIATE OR UNAVAILABLE MAY COURT IMPOSE SECURE DETENTION

SCENARIO 32

MAY JUVENILE COURT JUDGE IMPOSE 15 DAY SENTENCE WITHOUT CONSIDERING

ALTERNATIVE SANCTIONS?