9 Contempt

9. CONTEMPT

9.1 DEFINITION AND SCOPE OF CONTEMPT

9.11 Definition of contempt:

A. Type of Behavior -

1. Disregard for or disobedience to command of the court;

OR

2. Interruption of court by disorderly or insolent conduct either in its presence or so near thereto as to disturb its proceedings or impair due respect for the authority, justice or dignity of the court. [Wood, 103 Ga.App. 305, 119 SE2d 261 (1961), rev'd 370 U.S. 375 (1962)].

B. Effect - Conduct must constitute "clear and present danger to orderly administration of justice" - some interference with the court's administration of justice must actually result or be imminently threatened [Wood v. Ga., 370 U.S. 375 (1962); Garland, 253 Ga. 789, 325 SE2d 131 (1985)].

C. Courtroom Advocacy Test: "[A]ttorney may be held in contempt for statements made during courtroom proceedings only after the court has found:

1. that the attorney's statements and attendant conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice and

2. that the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy." [In re Jefferson, 283 Ga. 216, 657 SE2d 830 (2008)].

3. Factors to consider in considering contempt from courtroom advocacy:

a. extent to which the attorney was put on notice prior to the contempt citation that a continuation of the offending statements would constitute contempt;

b. likely impact of statements on fact-finder deliberations, including both the nature and timing of conduct and whether the fact-finder is a judge or jury;

c. whether the offending statements occurred as an isolated incident or constituted a pattern of behavior;

d. significance of the particular issue in question to the case as a whole and the relative gravity of the case; and

e. the extent, if any, to which the trial court provoked the offending statements with its own improper statements. [In re Jefferson].

9.12 Inherent authority - Every court has the inherent power to protect the integrity of its proceedings and processes [GA. CONST. Art. 6, Sec. 1, Para. 4].

9.13 Limitations on exercise to control statements - the power of the court to punish for contempt is limited by the right of free speech and depends upon the setting of the conduct [Garland,253 Ga. 789, 325 SE2d 131 (1985)]:

A. In court statements are subject to reasonable control, court's power broad.

B. Out of court statements during pendency of proceedings may constitute contempt if clear and present danger but balance with free speech rights delicate and court must proceed carefully.

C. Following end of proceedings or concerning judge who will no longer be involved in case, it is almost impossible to show clear and present danger.

9.14 Exercise of contempt power last resort - Judge should never enter a finding of contempt where conduct has destroyed objectivity or even engaged judge's emotions.

9.15 Types of Contempt

A. Civil Contempt is a tool to force obedience to court's order to do or refrain from act [Cobb v. Black, 34 Ga. 162 (1865)]. It is remedial and contemnor may be imprisoned only until he\she performs act or agrees to adhere to order [Ensley v. Ensley, 239 Ga. 860, 238 SE2d 920 (1977); [Schmidt v. Schmidt, 270 Ga. 461, 510 SE2d 810 (1999)]. It is said that contemnor has the key to the jailhouse door since compliance ends civil contempt. Considered civil proceeding.

B. Criminal Contempt consists of acts done or words spoken constituting disorderly or insolent conduct disturbing the proceedings or impairing due respect for the authority, justice or dignity of the court such that there is a clear and present danger to the orderly administration of justice. Wood v. Ga., 370 U.S. 375 (1962); Garland, 253 Ga. 789, 325 SE2d 131 (1985). The purpose of criminal contempt is punitive, not remedial; it is considered a criminal proceeding subject to criminal due process safeguards including proof beyond a reasonable doubt [Garland, 253 Ga. 789, 325 SE2d 131 (1985)] and right to counsel [McDaniel, 202 Ga.App. 409, 414 SE2d 536 (1992)]. Criminal contempt can remain an issue even after contemnor has ceased defying the court and belatedly complied with a court order, but whenever punishment is unconditional and defendant cannot end punishment by compliance, criminal due process applies [Schmidt v. Schmidt, 270 Ga. 461, 510 SE2d 810 (1999)]. Punishment is limited to 10 days and/or $200 [OCGA 15-10-2]; The procedure in criminal contempt varies depending upon whether it is direct or indirect contempt:

1. Direct criminal contempt involves disorderly or disrespectful acts committed in the presence or so near the presence of the court as to obstruct the administration of justice. This means within the judge's sensory perception (e.g., sight, hearing, etc.) [White, 71 Ga.App. 512, 31 SE2d 78 (1944)]; court must be able to "act on its own knowledge of the facts [McDaniel, 202 Ga.App. 409, 414 SE2d 536 (1992); Moody, 131 Ga.App. 355, 358(2), 206 SE2d 79 (1974)]. Judge must be able to perceive the contemnor, need not observe the contempt [Hayes, 298 Ga.App. 419, 680 SE2d 508 (2009) (physical precedent only)(judge could not smell alcohol)]. Case law conflicting over whether non-appearance in court is direct or indirect contempt (see "Attorney non-appearance," below).

2. Direct contempt may be result of conduct outside court [Hayes (presence of alcohol in system result of prior evening's drinking)].

3. Indirect criminal contempt involves contemptuous behavior outside of the court's sensory presence [Herring,165 Ga. 254, 140 SE2d 491 (1927)].

9.16 Disobedience of Court Orders - To find contempt from a disobedience of a court order, one must find:

A. Accused had actual knowledge of the court order [Lassiter v. Swift & Co.,204 Ga. 561, 50 SE2d 359 (1948)];

B. Order was definite enough to put the accused on notice of what conduct was prohibited [Schiselman v. Trust Co. Bank, 246 Ga. 274, 271 SE2d 183 (1980)];

C. Order was directed to accused [In re Hadaway, 290 Ga.App. 453, 659 SE2d 863 (2008)];

D. Accused was able to comply but wilfully refused to do so [In Re: Brookins, 153 Ga.App. 82, 264 SE2d 580 (1980); A.H. Robins Co. v. Fadely, 299 F2d 557 (5th Cir., 1962); In re Hadaway (lack of wilfulness found on appeal)].

NOTE - Violation of a conditional pretrial release bond is not contempt of court for either the Defendant or the victim (for instance, where the victim encourages the defendant to violate a "no-contact" provision. The only remedy is revocation of the bond [Salter v. Greene, 226 Ga.App. 384, 486 SE2d 650 (1997)]. Bonds for good behavior are different (see 20.71G).

9.17 Double Jeopardy from Contempt Finding - A finding of criminal contempt is a criminal conviction for purposes of the U.S. Fifth Amendment's Double Jeopardy clause. If proof of the contempt and proof of the crime each require an element of proof not found in the other, prosecution may proceed. If one charge requires proof of everything required to show the other (plus perhaps additional elements) then double jeopardy prevents prosecution [U.S. v. Dixon,509 U.S. 2849 (1993)].

EXAMPLE - A defendant found guilty of violating a bond for good behavior which prohibited him from "assaulting or threatening" his girlfriend

9.2 DIRECT CRIMINAL CONTEMPT [OCGA 15-1-4]

9.21 Record all proceedings [In re Shafer, 216 Ga.App. 725; 455 SE2d 421 (1995)] (if not feasible, must draw very detailed order with findings of fact and conclusions of law).

9.22 Notify the accused of observed contemptuous conduct [Mayberry v Pa., 400 US 455 (1971)].

A. Must be done immediately after conduct, if using summary procedure <Dowdy v. Palmour, 251 Ga. 135, 141-142(2), 304 SE2d 52 (1983)].

B. Notice must contain all factual elements of contemptuous conduct [Mayberry v Pa., 400 US 455 (1971)]; recite words or acts as exactly as possible - no conclusory statements. [In re Shafer, 216 Ga.App. 725; 455 SE2d 421 (1995)].

NOTE - Definition of "contempt" not limited to OCGA 15-1-4 [See Bradley, 111 Ga. 168, 36 SE2d 630 (1900)].

CAUTION - Opportunity to speak (allocation) after apprising contemnor of basis of contempt inquiry is always required - even when court just observed contemptuous conduct in its presence. Coleman, 269 Ga.App. 827, 605 SE2d 424 (2004).

9.23 Give accused opportunity to speak (for allocution) [Mayberry v. Pa., 400 US 455 (1971); Johnson, 258 Ga.App. 33, 572 SE2d 669 (2002)]:

A. Accused may show cause why conduct not contempt.

B. Accused may show mitigating factors.

C. Accused may apologize to court.

9.24 Pronounce sentence [OCGA 15-1-4]:

A. Must do at once in summary proceedings [Taylor v Hayes,418 US 488 (1974); Spruell, 148 Ga.App. 99, 250 SE2d 807 (1978)].See order below (9.51).

CAUTION - Unless notification (9.22), opportunity to respond (9.23), and sentence are all done immediately, use the same procedure as indirect contempt (see 9.3); additionally, if contempt is directed to judge or judge reacts to become involved in the controversy, cite the contemptuous conduct by rule nisi or other written order and recuse self from hearing the contempt [Dowdy v. Palmour, 251 Ga. 135, 141-142(2), 304 SE2d 52 (1983) (delay until end of proceeding); compare In re Hatfield, 290 Ga.App. 134, 658 SE2d 871 (2008) with In re Longino, 254 Ga.App. 366; 562 SE2d 761 (2002)]. If sentence is immediate, imposition of punishment may be postponed until the end of the proceedings [Dowdy].

B. Must be sustained by evidence beyond reasonable doubt [Garland,253 Ga. 789, 325 SE2d 131 (1985)].

C. No right to attorney [In re Longino, 254 Ga.App. 366, 562 SE2d 761 (2002)] (but see "Right to Counsel" discussion under Case Citations below).

D. No right to jury [Bennett v. Bagwell & Stewart, Inc.,216 Ga. 290, 116 SE2d 288 (1980)].

E. Judge must not personally react or inject self in controversy [Taylor v. Hayes, 418 US 488 (1974); In re Crane, 253 Ga. 667, 324 SE2d 443 (1985)].

NOTE - If judge not able...