Advice to Attorneys on Contempt
| Publication year | 2012 |
| Pages | 79 |
2012, January, Pg. 79. Advice to Attorneys on Contempt
January 2012
Vol. 41, No. 1 [Page79]
Judges' Corner is published quarterly to provide information Colorado judges would like to disseminate to attorneys. If you would like to suggest topics or write an article for this Department, please send an e-mail to Coorindating Editor Alan Loeb, Colorado Court of Appeals Judge, at alan.loeb@judicial.state.co.us.
About the Author
Raymond N. Satter has been a Denver County Judge since 1987. Before that, he was in solo private practice. He is a member of the CBA Ethics Committee and frequently lectures on the subject of contempt.
Rule 107 of the Colorado Rules of Civil Procedure (Rules or C.R.C.P.) governs all contempt situations in Colorado. C.R.C.P. 407 applies to county court contempt proceedings; it is identical to Rule 107. These are the only rules that govern contempt in Colorado. There is no corresponding rule in the Colorado Rules of Criminal Procedure. Therefore, reference in this article will be to Rule 107 alone.
Rule 107 clearly defines and discusses forms of contempt and remedial and punitive sanctions for contempt. The Rule differentiates between contempt that occurs in the presence of the court and contempt that occurs beyond the hearing or sight of the court. It sets forth separate sanctions depending on the purpose to be served, and outlines different types of proceedings depending on where the contempt occurs.
When possible, attorneys and their clients should avoid situations that may subject them to findings and sanctions for contempt by a court. This article is intended to help attorneys and their clients avoid contempt problems.
Defining "Contempt of Court"
In general, the power of contempt is limited to maintenance of order in court, enforcement of court orders, and control (punishment) over acts committed either in court or out of court that tend to obstruct the administration of justice. The authority to punish for contempt is an inherent power of the court and finds its source in the common law:
The power to punish for contempt, as a punitive measure or to coerce obedience, is an inherent and indispensable power of the courts. Such power "is not derived from the Legislature and cannot be made to depend upon the legislative will." Intrinsic in tribunals following the common law, such as ours, is the right to protect themselves against insults and indignities, interference with the administration of justice, and disobedience of their orders.(fn1)
"Contempt" is defined by Rule 107(a)(1) as
[d]isorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; behavior that obstructs the administration of justice; disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court; or any other act or omission designated as contempt by the statutes or these rules.
"Court" is defined by Rule 107(a)(6) as "any judge, magistrate, commissioner, referee, or a master while performing official duties." This includes judges conducting settlement conferences.(fn2) Also included in this definition are the justices of the Colorado Supreme Court, who can issue citations for failure to comply with their orders, including those issued by the presiding disciplinary judge in attorney discipline cases, as well as unauthorized practice of law cases.
Something said in a heated exchange with the judge may be a violation of the Rules of Professional Conduct or contempt of court. Other types of misconduct or inappropriate behavior that occur in a judicial setting may not necessarily be contempt but sometimes are thought as contemptuous by trial courts. Unprofessional conduct by an attorney or violation of the Rules of Professional Conduct are example of this.(fn3)
In Hill v. Boatright,(fn4) the direct contempt sanction imposed by the trial court was reversed, because the conduct in essence was an ethical violation.(fn5) Arguments of counsel are not contempt unless they create "an obstruction which blocks the judge in the performance of his judicial duty."(fn6) It has been held there was no contempt by an attorney if the court's order was erroneous, and there was no disruption.(fn7) However, where an attorney's actions in not timely submitting jury instructions delayed and hindered proceedings, a $1,000 fine was held on appeal to be not excessive, even though it was not based on any damages, costs, or amounts of the opposition's attorney fees.(fn8)
Direct Contempt
Rule 107(a)(2) defines "direct contempt" as "[c]ontempt that the court has seen or heard and is so extreme that no warning is necessary or that has been repeated despite the court's warning to desist." This is contempt that is committed in the judge's presence, and is restricted to what the judge saw or heard, not what someone else reported to the judge. The key element, for procedural purposes, is "in the presence" of the judge. If this element is missing, the contempt is indirect and may not be dealt with summarily. In Losavio v. District Court,(fn9) a district attorney (DA) was held in summary contempt for remarking to a defendant, "I'll bet you're glad that [the judge is] in your corner." The judge did not hear the remark, but the defendant told the judge of the DA's comment. That resulted in fifteen days in jail for the DA, and no stay. However, because the judge did not have personal knowledge of the remark, a hearing was required, and the contempt finding was reversed.
In People v. Ganatta,(fn10) a DA informed the judge that granting the DA a delay during a trial would cause him to be forced to further delay the court because he could not alter the order of his witnesses. The judge tolerated the DA's delay on this representation. The DA subsequently altered the order of his witnesses anyway, and the judge felt that the DA had deliberately misled the court. The DA was held in summary contempt, but a division of the Colorado Court of Appeals reversed:
[E]ven if the contemptuous conduct occurs in the presence of the court, if there are circumstances which have occurred out of the presence of the court that may constitute a lawful justification for the contemptuous behavior, a hearing, conforming to the requirements of due process is required.(fn11)
Indirect Contempt
Rule 107(a)(3) defines "indirect contempt" as "[c]ontempt that occurs out of the direct sight or hearing of the court." In other words, any contempt that the court has not personally seen or heard is indirect contempt. If a contempt is direct contempt, it may be punished by the court summarily, with little or no hearing. If a contempt is indirect, it may not be punished summarily, and the contemnor has certain essential rights to a hearing and due process.(fn12)
This begs the question: Does a failure to appear occur inside or outside the presence of the court? In People v. Madonna,(fn13) a party failed to appear for a scheduled sentencing hearing and received an additional ninety days in jail for the failure to appear. In Harthun v. District Court,(fn14) and District Attorney In and For Alamosa County v. District Court,(fn15) a lawyer or DA failed to appear. The judges dealt with these failures to appear as...
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