A Practice Commentary To Judiciary Law Article 19
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Lawrence N. Gray, Esq.= Lawrence N. Gray, received his B.A. from St. John's University (1966, Cum laude), J.D. from St. John's University School of Law (1969).
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Commencing with its ad hoc status in New York's colonial period through its first codification in the Revised Statutes of the 1800's and in the present Judiciary Law Article 19,1 criminal and civil contempt (non-Penal Law) has undergone so many contradictory and anomalous twists and turns-especially over the last forty years-that Judiciary Law Article 19 is really two statutes. One appears as the written statute itself. The other is the written statute as interpreted, qualified, augmented, and in certain respects, rewritten by appellate case law. No one has studied the Article's pertinent sections and its case law gloss with the goal of making some sense of a veritable hodgepodge-a task akin to making a silk purse out of a sow's ear. Ergo, this effort.
New York's Judiciary Law Article 19 codifies and regulates contempt, the inherent judicial power to preserve its existence and its function to adjudicate and order under the rule of law. It is not a conferral of power by the legislative branch. Thus, it has the inherent power to enforce its orders and compel decorum in its presence. Without this power a court is not a court but a black robe giving advice.2 The judiciary's power to adjudicate, order, and compel decorum under pain of jail or fine is nondelegable3 and has two facets which Judiciary Law ßß 750 and 753 codify. The first is criminal contempt, which vindicates a court's authority and public justice generally. The second is civil con-Page 62tempt, which is concerned with the vindication of the rights of private litigants. Primarily, however, the judiciary's contempt power vindicates judicial authority.
Contempt jurisprudence is jurisprudence by the ambiguous nomenclature of the words "criminal" and "civil." Much confusion would be avoided if the words "public" and "private" were used instead of "criminal" and "civil" to distinguish the contempt power used to punish past disobedience with public aspects from contempt power employed to remedy the effects of past disobedience, or to coerce future obedience affecting only private rights.4
Besides being a hostage to nomenclature, criminal and civil contempt sometimes steal each other's conceptual clothing. To achieve a desired result, courts will often state that a criminal contempt charge not only punishes but also coerces and that a civil contempt charge not only coerces but also punishes.5 This is more psychology than it is law. It is a conflation of the concepts of coercion in fact and coercion in law.6 Jailing a person as a means of civil coercion also punishes. Incarcerating a person for criminal contempt punishes, but it also coercively deters similar misconduct in the future or encourages proper future conduct.
New York Judiciary Law ß 750(A) states that criminal contempt consists of certain specified acts "and no others." But civil contempt has a cowcatcher, which is ß 753(A)(8). In addition to those civil contempts specified in ß 753's seven prior subsections, under subsection 8 one may look to the common law, that is, to "any other case where an attachment or any other proceeding to punish for a contempt has been usually adopted and practiced in a court of record." Note also that a criminal contempt proceeding may be instituted by the sovereign, a party, or the court, sua sponte,7 whereas civil contempts may only be brought by an aggrieved litigant. There is no authority for a court to jump into the shoes of a private litigant.8
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Contempt law is the subject of contradictory and anomalous twists and turns. New York's Court of Appeals, where the law is tailored to the needs of a momentarily desired result, cannot make up its mind as to what criminal contempt is and is not, and how criminal contempt is to navigate through the court system. The Court of Appeals has held that Judiciary Law civil contempt is "penal in nature' for exclusionary rule purposes.9 But the Court has also said that Judiciary Law criminal contempt was "civil in nature" with its punishment described as "remedial and coercive',10 and that although Judiciary Law criminal contempt may be charged in a civil proceeding, it possesses "criminal overtones."11 For its part, the United States Supreme Court has declared that Judiciary Law criminal contempts are "
Consider the converse. If a legislature had the power to enact and confer inherent contempt powers on the courts, it could repeal them and put the courts out of existence because, again, a court without inherent contempt power is merely advice cloaked in a black robe. Criminal and civil contempts, as codified in Article 19, are sui generis special proceedings brought through the civil side of the court. They are governed by New York's Civil Practice Law and Rules (C.P.L.R.), references to which appear throughout Judiciary Law Article 19.13 Note that Article 19's predecessor, containing both civil and criminal contempt provisions, is the 1909 Code of Civil Procedure-a historical sign thatPage 64 Judiciary Law criminal contempts were never contemplated to be "crimes in the ordinary sense."
Criminal contempt has a curious place in the procedures governing New York's appellate system. For example, a grand jury proceeding is a criminal proceeding.14 However, a motion to quash, fix conditions on, or modify a grand jury subpoena is held to be a civil proceeding brought through the civil side of the court pursuant to C.P.L.R. ß 2304. The denial of these motions is appealable to the Court of Appeals as a civil appeal.15 If the witness, after the Court of Appeals rules against him, still refuses to obey the subpoena and is held in criminal contempt under Judiciary Law ß 750, the question then becomes whether New York's Civil Practice Law and Rules or its Criminal Procedure Law governs. The latter, by its own terms, limits appeals to those specified therein.16 It makes no reference to an appeal from a Judiciary Law criminal contempt adjudication arising out of a grand jury proceeding. Yet the Court of Appeals and Appellate Division review many criminal contempts arising out of grand jury and criminal trial proceedings without a word as to the type of appeal that is before them. More than a century ago, but still without positive results, New York's Court of Appeals asked its legislature to address this matter.17
Under Judiciary Law ß 750(A)(l), a court may punish "disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due its authority." Such conduct, may alternatively, be punished under Penal Law ß 215.50(1) by the local prosecutor.18 The rest is controlled by confusing case law.
In 1888, a federal court ordered a defendant's wife removed from the courtroom. The defendant assaulted a court officer who was seeking to eject his wife and then bolted out of the courtroom. The court held him in "immediate-view-and-presence" summary contempt and imposed punishment. A few days later, the authorities caught the defendant and immediately incarcerated him. The Supreme Court ruled thatPage 65a court's jurisdiction to punish for contempt in its "immediate view and presence" attaches at the instant of the contempt and that a court, under circumstances such as these, may immediately adjudicate and impose punishment even though the contemnor is not present to speak on his own behalf prior thereto.19 In a 1949 federal trial of the head of the Communist Party of America and others, the trial court was confronted with pandemonium. First the judge ordered the miscreants jailed. He then...
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