Indirect Criminal Contempt
By Robert S. Held – February 24, 2016
Recently, a litigant in a post-dissolution family law matter was found in contempt of court for a posting on Facebook. The litigant, James Weddigen, wrote that he had “recorded” his court hearing and encouraged those viewing his Facebook page to record their family law court hearings. Mr. Weddigen also explained how a non-attorney could bypass security in order to bring a recording device to court. Initially, the trial court, in finding him in contempt, was not imposing a sanction but indicated the contemnor could purge the contempt by telling people that it is wrong to record court proceedings. The contemnor refused and was fined $100 per day until he purged the contempt. He was also ordered to pay the attorney fees of his former wife that were related to the contempt. In re Marriage of Weddigen, No. 4-15-0044, 2015 WL 6504800, at *1 (Ill. App. Ct. 4th Dist. Oct. 28, 2015).
The appellate court reversed the finding of contempt related to the Facebook posting because the lower court failed to adhere to procedures required for a finding of indirect criminal contempt. Id. at *10. This case provides a vivid template for discussing the circumstances where a finding of contempt could be appropriate as well as the distinct and specific procedures applicable to criminal contempt.
In Weddigen, the trial court did not appreciate the difference between civil and criminal contempt and merged the two distinct varieties of contempt into a new, hybrid proceeding. Id. at *7. The difference between civil and criminal contempt is marked, and constitutional protections are mandatory in an indirect criminal contempt proceeding. Because Mr. Weddigen was not afforded his constitutional rights, the Fourth District Appellate Court unanimously vacated the finding of contempt. Id. at *8.
To put criminal contempt in perspective—and to sustain our notions of substantial justice and comply with the Constitution—an alleged felon is provided notice of the charges, a fair jury trial, an opportunity to confront witnesses, and protection against self-incrimination. Should these and similar constitutional protections be provided to alleged criminal contemnors where the conduct arises outside the court’s presence?
Contempt can be any conduct, verbal or non-verbal, that embarrasses or obstructs the court, derogates from the court’s authority or dignity, brings the administration of justice into disrepute, or constitutes disobedience of a court order. In Weddigen, the trial court ruled that the Facebook posting was made in order to “bring disorder and disruption to my and every courtroom in the state.” Id. at *2. For that reason, the court, however dismissive of the First Amendment to the U.S. Constitution, proceeded on its theory against Mr. Weddigen that the social media post might be contemptuous. Id at *10 (Steigmann, J., specially concurring).
The powers of a court to make a finding of contempt and punish litigants, spectators, and counsel stem from the common law. The Appellate Court reaffirmed this principle in Thomas v. Koe, 395 Ill. App. 3d 570 (4th Dist. 2009): “It is well established law that all courts have the inherent power to punish contempt; such power is essential to the maintenance of their authority and the administration of judicial powers.”
Civil and Criminal Contempt Distinguished
The difference between civil and criminal contempt has nothing to do with the conduct of the contemnor. Rather, counterintuitively, it is the outcome sought by the resulting order that determines whether the conduct in question is a civil or criminal wrong. If the purpose of the contempt proceeding is to compel performance, the proceedings are civil. On the other hand, as was made clear by the court in In re Marriage of Betts, 200 Ill. App. 3d 26, 43 (4th Dist. 1990), if the contempt proceeding is to punish past conduct, the nature of the proceeding is criminal. In short, a civil contemnor can simply take the action sought to be coerced, and if he or she does so, no further contempt sanctions are imposed. The punishment for civil contempt can include a fine or incarceration. However, in selecting contempt sanctions, a court is obliged to use the least possible power to serve its purposes. Spallone v. United States, 493 U.S. 265, 276 (1990); City of Quincy v. Weinberg, 363 Ill. App. 3d 654, 667 (4th Dist. 2006).
It is not uncommon for courts to jail journalists who do not comply with subpoenas issued in conjunction with criminal investigations. Judith Miller, for example, was jailed while employed by the New York Times for refusing to reveal information about a leak from Vice President Cheney’s chief of staff concerning CIA operative Valerie Plame. Ms. Miller was found in civil contempt but “held the keys to the jail” because when she complied with the subpoena (after her source released her from her promise of confidentiality), she was freed. The special prosecutor had threatened criminal contempt (in addition to her civil confinement) in an effort to punish Ms. Miller for her refusal to comply with the subpoena. See generally In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006).
As the Betts court made clear, criminal contempt may be found in connection with any of the following conduct: disrespectful, disruptive, deceitful, and disobedient acts (or omissions) that affect judicial proceedings; the filing of a spurious will and application for its probate; inappropriate communications with jurors; disobedience of a court order; and failure by an attorney to abide by an injunction.
Criminal contempt may be direct (an act committed in the presence of the court) or indirect (all contempts that do not occur in proximity to the court). However, acts not seen directly by the judge but occurring within the court’s “constructive” presence can be deemed to be direct contempt also. People v. Javaras, 51 Ill. 2d 296, 299 (1972).
In Weddigen, all of the conduct occurred in the digital realm of social media—so it was indirect contempt. Because the court sought to punish Mr. Weddigen for his conduct, the contempt was criminal in nature. But the procedures used by the court were applicable to civil contempt (an effort to coerce the contemnor). For example, the court issued a “rule to show cause,” thereby placing the burden of proof on the contemnor. However, “shifting the burden of proof, whether it be of production or of persuasion, to a defendant in a criminal trial violates due process.” People v. Steele, 366 Ill. App. 3d 220, 222 (2d Dist. 2006).
The procedures in direct criminal contempt are far different from those in cases where the conduct occurs outside the presence of the court, i.e., in indirect contempt cases. As stated in Betts, “[i]n direct criminal contempt proceedings in which a judge has personal knowledge of all of the facts establishing contemptuous conduct, no formal charge is filed and no plea, issue or trial is required.” The presentation of evidence is unnecessary; intent may be inferred and the finding may be made in summary fashion without a trial. Only when the punishment for contemptuous conduct exceeds the punishment normally imposed for misdemeanors and is not imposed immediately is the contemnor entitled to a jury trial.
The constitutional protections cannot, as a practical matter, be afforded to direct criminal contemnors because the authority, dignity, and efficiency of the court would be compromised if a judge could not recognize, adjudicate, and immediately punish a contemnor for conduct that occurs in the judge’s presence.
Indirect Criminal Contempt
Indirect criminal contempt is a separate and distinct proceeding and is not part of the original case being tried when the contemptuous act occurred. People v. Budzynski, 333 Ill. App. 3d 433, 438 (4th Dist. 2002). It is important to note that the constitutional protections applicable to criminal defendants are required in an indirect criminal contempt proceeding. Thus, various cases have explicitly held that the indirect criminal contemnor
- must be formally served for the court to have personal jurisdiction,
- has the right to counsel,
- is presumed to be innocent,
- must be found guilty “beyond a reasonable doubt,”
- has a right to the privilege against self-incrimination,
- has a right to a trial by jury in “serious” cases, and
- has the right to appeal.
A criminal charge of contempt can be commenced by a criminal complaint or a petition for adjudication of indirect criminal contempt. A motion for rule to show cause is inapplicable to indirect criminal contempt proceedings because it unconstitutionally shifts the burden of proof to the defendant to prove his or her innocence.
Because a jury trial is available for cases of “serious” criminal contempt, the court must determine whether the indirect contempt will be treated as minor or serious. People v. Lindsey, 199 Ill. 2d 460, 471 (2002). In Budzynski, the court stressed the procedures to be followed at the defendant’s first appearance. The defendant should be advised of the charges and of his or her rights. Counsel should be appointed if appropriate.
In Illinois, a contempt charge is serious if the sentence exceeds six months or the fine exceeds $500. City of Rockford v. Suski, 307 Ill. App. 3d 233, 247 (2d Dist. 1999).
Note that the right to a trial by jury is determined by what sentence could be imposed. Accordingly, it is incumbent on the court to determine at the outset whether the punishment might exceed six months in prison or $500. Without such a determination, the defendant will not know whether he or she has a right to a jury trial and, thus, the defendant’s constitutional due process rights under the Fourteenth Amendment would be jeopardized.
Defenses to Indirect Criminal Contempt
Procedures with respect to indirect criminal contempt include the constitutional guarantees to traditional criminal defendants, i.e., proper notice, a fair trial, the presumption of innocence, the right to counsel, a public trial, proof of guilt beyond a reasonable doubt, protection against double jeopardy, and the privilege against self-incrimination.
Less obvious defenses exist and have been sustained. The lack of any order prohibiting the act in question may be a complete defense to criminal contempt. For example, an alleged oral order of the court may not be enforced in a criminal proceeding if the oral order was not received and understood.
If the violation was not willful, criminal contempt is unavailable. If the court does not have jurisdiction over the contemnor, a judgment will be reversed. As noted above, indirect criminal contempt is a separate proceeding from the underlying matter, and service is required on the defendant. If the charge of contempt was not sufficiently set forth, the defendant’s due process rights would trump the otherwise questionable conduct of the defendant. On that basis, the order of contempt can be vacated.
A direct criminal contemnor should be appropriately punished summarily; for indirect criminal contempt—where the contumacious conduct occurs outside the court’s presence—our due process requires substantially more. In short, an alleged indirect criminal contemnor should be treated no differently than a more traditional criminal defendant and afforded the rights that this country’s founding fathers thought fundamental.
The trial court’s determination to disregard Mr. Weddigen’s First Amendment rights and to hold him in contempt highlights the need for education on due process requirements for indirect criminal contempt. Assuming a Facebook post could constitute the basis for criminal contempt, we must follow the stringent requirements that justice requires. The court in People v. Mowery, 116 Ill. App. 3d 695 (4th Dist. 1983),perhaps best summed up indirect criminal contempt and the necessary procedural safeguards:
The inherent power of contempt is a powerful one; it is not to be used lightly nor when other adequate remedies are available; if it is used, it must conform strictly to the dictates of the law. It is a matter of deep concern to us that . . . the mechanics of the matter were so mishandled that the proceedings must be vacated. The record falls short of the due process and fundamental fairness to which defendant was entitled.
While the power of a court to punish is inherent and an essential element of its duty and power, the rights of parties and their counsel must not be given short shrift in the good-faith—yet mistaken—belief that indirect criminal contemnors should be treated any differently than any other citizen facing a criminal charge.
Keywords: criminal litigation, contempt, indirect criminal contempt, criminal law, due process
Robert S. Held is a partner at Harrison & Held, LLP, in Chicago, Illinois.