Judge Robert N. Scola, Jr.

1
CONTEMPT IF YOU MUST, DO IT RIGHT

• Judge Robert N. Scola, Jr.

February 10, 2010
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LEARNING OBJECTIVES

• IDENTIFY TYPES OF CONTEMPT
• ADVISE JUDGES HOW TO CONDUCT HEARING FOR EACH
  KIND OF CONTEMPT
• PREPARE WRITTEN ORDER
• IMPOSE APPROPRIATE SANCTIONS

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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.

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KINDS OF CONTEMPT

• EVERY CONTEMPT IS EITHER
• DIRECT OR INDIRECT
• AND
• CRIMINAL OR CIVIL

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DIRECT V. INDIRECT CONTEMPT

• DIRECT CONTEMPT OCCURS IN THE PRESENCE OF THE
  COURT
• INDIRECT CONTEMPT OCCURS OUTSIDE THE PRESENCE OF
  THE COURT

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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

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DIRECT CIVIL CONTEMPT

• OCCURS IN THE PRESENCE OF THE COURT
• NO STATUTE, RULE OR CASE LAW SPECIFICALLY
  AUTHORIZING
• ONLY MENTIONED IN ONE CASE

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SCENARIO 1
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?
YES

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

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SCENARIO 2
FORMER HUSBAND RETIRES AND NOW CANNOT CHANGE
BENEFICIARY. MUST HE BE RELEASED FROM JAIL?
YES

• 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

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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

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SCENARIO 4
VINNY FIRMLY BELIEVES THAT THE JUDGES ORDER IS
LEGALLY INCORRECT AND THAT IS WHY HE HAS VIOLATED
IT. CAN JUDGE STILL HOLD VINNY IN
CONTEMPT?
YES

• EVEN LEGALLY INCORRECT ORDER MUST BE FOLLOWED
  PARTY MAY APPEAL

12
SCENARIO 5
PRO SE LITIGANT ASKS FOR A RECESS SO THAT HE CAN
RETAIN COUNSEL. SHOULD REQUEST BE GRANTED?
NO

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

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SCENARIO 6COURT IMPOSES THE FOLLOWING SENTENCE

• 6 MONTHS IN JAIL
• 750.00 FINE
• ATTORNEYS 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

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ARE THE FOLLOWING SANCTIONS PROPER?

• 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
• ATTORNEYS FEES
• AWARD OF ATTORNEYS FEES FOR COURTS WASTED TIME
  NOT PROPER FOR CRIMINAL CONTEMPT

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• 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

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SCENARIO 7
VINNYS JUDGE WRITES THE FOLLOWING ORDER VINNY
HAS ENGAGED IN INJUDICIOUS, UNETHICAL AND
INTEMPERATE CONDUCT. IS THIS SUFFICIENT?
NO

• 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

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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

18
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

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SCENARIO 9IS 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 COURTS AUTHORITY
  OR DIGNITY?
• WHERE DEFENDANT KICKED DOOR AND TOLD BAILIFF F
  YOURSELF OK TO HOLD IN CONTEMPT CALCULATED TO
  LESSEN COURTS AUTHORITY OR DIGNITY

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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

21
SCENARIO 11CAN ENTIRE STATE ATTORNEYS OFFICE
BE HELD IN CONTEMPT OF COURT?
NO

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

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SCENARIO 12ONCE TRIAL RESUMES, JURY RETURNS
VERDICT FOR DEFENDANTS. VINNY POUNDS TABLE AND
YELLS YES!!
CAN HE BE HELD IN CONTEMPT FOR OUTBURST?
NO

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

23
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

24
SCENARIO 13 MOTHER FAILS TO PAY CHILD SUPPORT AND
PRESENTS NO EVIDENCE OF INABILITY TO PAY

• 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

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SCENARIO 13 (CONTINUED)

• 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

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SCENARIO 14
MOTHER SPENDS MONEY AT CASINO INSTEAD OF PAYING
COURT ORDERED SUPPORT

• 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

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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

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SCENARIO 16
IS ADDITIONAL HEARING REQUIRED WHEN FATHER IS
ARRESTED 30 DAYS LATER?
YES

• 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

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SCENARIO 17
MUST CONTEMPT BE PROVEN BEYOND REASONABLE DOUBT
WHERE JAIL SENTENCE IS IMPOSED?
NO

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

30
SCENARIO 18
MAY RETROACTIVE AND FUTURE FINES BE IMPOSED TO
COERCE COMPLIANCE WITH COURTS DISCOVERY ORDER?
NO

• 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

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SCENARIO 19
MAY CONTEMNOR BE SENTENCED TO INDEFINITE PERIOD
OF INCARCERATION FOR FAILURE TO PAY IF SHE HAS
THE PRESENT ABILITY?
YES

• SENTENCE OF INCARCERATION FOR INDIRECT CIVIL
  CONTEMPT MAY BE FOR A FIXED OR INDEFINITE PERIOD
• BUT SET FOR STATUS PERIODICALLY

32
SCENARIO 20
MAY PARTY BE HELD IN CONTEMPT FOR FAILING TO PAY
COURT ORDERED DEBT?
NO

• DEBTS NOT INVOLVING SUPPORT CANNOT BE ENFORCED BY
  COURTS CONTEMPT POWER
• IF MATTER RELATES TO COURTS EQUITABLE
  DISTRIBUTION SCHEME, CONTEMPT IS NOT AVAILABLE

33
SCENARIO 21
IS PARTY ENTITLED TO COURT APPOINTED ATTORNEY FOR
INDIRECT CIVIL CONTEMPT WHERE A JAIL SENTENCE IS
POSSIBLE
NO

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

34
SCENARIO 22
MAY COURT ORDER PAYMENT OF EXPENSE OF RENTAL CAR
WHERE HUSBAND FAILED TO COMPLY WITH COURT ORDER?
YES

• CIVIL CONTEMPT PROCEEDINGS MAY BE USED TO EITHER
• COMPENSATE INJURED PARTY FOR LOSSES SUSTAINED OR
• COERCE OFFENDING PARTY TO COMPLY WITH PREVIOUS
  COURT ORDER

35
SCENARIO 23
MAY COURT CHANGE CUSTODY AS A SANCTION FOR
VIOLATION OF A COURT ORDER
NO

• 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

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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

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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

38
SCENARIO 24 MAY JUDGE ORDER ARREST TO ENSURE
APPEARANCE AT CONTEMPT HEARING?

• YES, IF JUDGE HAS GOOD REASON TO BELIEVE SHE
  WILL NOT ATTEND HEARING, JUDGE SHOULD ISSUE
  WARRANT FOR CONTEMNORS 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

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SCENARIO 25 MUST JUDGE RECUSE SELF FROM CONTEMPT
PROCEEDINGS?

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

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SCENARIO 26 MUST ALLEGATIONS IN ORDER TO SHOW
CAUSE BE MADE UNDER OATH?
YES

• ORDER TO SHOW CAUSE BASED UPON UNSWORN AFFIDAVIT
  WAS LEGALLY INSUFFICIENT
• THINK ABOUT AN INFORMATION OR INDICTMENT IN
  CRIMINAL CASE

41
SCENARIO 27 MUST JUDGE ALLOW CLOSING ARGUMENTS IN
NON-JURY INDIRECT CONTEMPT TRIAL?
YES

• TRIAL COURT VIOLATED DEFENDANTS RIGHTS BY NOT
  ALLOWING ARGUMENT
• DEFENDANT ENTITLED TO SAME CONSTITUTIONAL DUE
  PROCESS PROTECTIONS AS ANY OTHER CRIMINAL
  DEFENDANT

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SCENARIO 28 IS CLAIM OF INABILITY TO COMPLY A
VALID DEFENSE TO CONTEMPT
YES

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

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SCENARIO 29 IS LACK OF INTENT TO VIOLATE ORDER A
VALID DEFENSE TO CONTEMPT
YES

• 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

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SCENARIO 30 ARE WRITTEN FINDINGS NECESSARY IF
COURT ANNOUNCES FINDINGS ORALLY ON THE RECORD?

• 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

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SCENARIO 31 IS CONTEMNOR ENTITLED TO AN APPOINTED
ATTORNEY?
YES

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

46
SCENARIO 32 MAY JUVENILE COURT JUDGE IMPOSE 15
DAY SENTENCE WITHOUT CONSIDERING ALTERNATIVE
SANCTIONS?
NO

• COURT MUST CONSIDER ALTERNATIVE SANCTIONS TO
  SECURE DETENTION
• ONLY UPON FINDING SUCH WOULD BE INAPPROPRIATE OR
  UNAVAILABLE MAY COURT IMPOSE SECURE DETENTION