my years as a public defender, I experienced more than once a judge or court commissioner threaten to hold me in contempt for being late to court or due to some other action on my part. Thankfully I had wonderful attorney supervisors like Neil McGinn or Lewis Epps who smoothed things over. However, just in case, I did prepare the following outline. Given the current contempt threats by judges to attorneys for eye-rolling or insisting the presumption of innocence be given a client, they might wish to review the following outline.
A. THE THREAT OF CONTEMPT
`When the judge threatens to hold you (or your client) in contempt, either because of a prior action or conditionally in the event that an offending action is repeated,
1. Express regret that the court believes your action may be contemptuous, and state that you had no intention to embarrass or obstruct the court.
2. The contempt power of a court is to be used sparingly and not in a arbitrary, capricious or oppressive manner. In re Adam’s Rib, 39 Wis. 2d 741, 746(1967).
3. There are two types of contempt: remedial or punitive. Sec. 785.02. Remedial contempt is a non summary procedure which requires due process. Sec. 785.03(1). Summary contempt requires no special due process considerations and is therefore expressly limited to” contempt of court in the actual presence of the court.” Sec. 785.03(2).
a. An attorney”s failure to attend court at a scheduled time does not occur in the presence of the court so that the non summary provisions and due process applies. Gower v. Marinette County Cir. Court, 154 Wis. 2d 1, 452 N.W. 2d 355 (1990).
b. In the Matter of Sanctions in State v. Willie Rodgers: Scott F. Anderson, v. Circuit Court for Milwaukee County, The Honorable Robert Crawford, Presiding, 219 Wis. 2d 1, 578 N.W.2d 633(1998) the court held that: (1) a circuit court’s interest in creating a particular courtroom culture did not outweigh the need for fairness or the need for the circuit court to make a record when imposing sanctions for an attorney’s tardiness; (2) a circuit court’s failure to delineate the factors that influenced its decision constituted an erroneous exercise of its discretion; (3) the record did not demonstrate that the circuit court examined the relevant facts, applied a proper standard of law, or used a demonstrated rational process to reach a conclusion that a reasonable trial judge would reach; and (4) because the circuit court did not articulate its reasoning on the record, the court was unable to conclude that the sanction was just. The Court held that “A court should use caution in imposing sanctions against attorneys. Mistakes by attorneys can often be corrected without sanctions if they are isolated mistakes resulting from inexperience, inadvertence or misunderstanding. A judge should utilize opportunities to criticize and correct unprofessional conduct of attorneys and counselors, brought to his or her attention. Furthermore, circuit courts should tailor sanctions to the severity of the misconduct. . . . . For a reviewing court to determine whether the sanctions imposed in a particular case are just, a circuit court must make a record of the reasons for imposing sanctions in that case. To make a record, the circuit court should give the attorney an opportunity to explain his or her tardiness. The record must address the disruptive impact on the court’s calendar resulting from the attorney’s late arrival, the reasonableness of the attorney’s explanation and the severity of the sanction to be imposed.
4. Should it appear that the judge wishes to proceed to contempt proceeding, request adjournment of the proceeding to protect your due process right to appointment of counsel. Sec. 977.05(4)(k).
5. Court commissioners, municipal courts and administrative agencies DO NOT have contempt powers but must instead petition a circuit court to hold someone in contempt. Sec. 785.06; State ex rel. Stedman v. Rohner, 149 Wis. 2d 146, 438 N.W. 2d 585 (1989).
6. Unless the context make the proposition obvious, ask precisely what action has provoked the court, why the court believes your acts to be improper. MAKE SURE THIS IS ALL ACCURATELY REFLECTED ON THE RECORD AND OBTAIN A TRANSCRIPT. See, O’Leary v. Allphin, 64 Ill. 2d 500,514 (1976).
a. If it pertains to the facts of your case, explain that the contempt order unreasonably restricts your advocacy because:
• it deprives your client of the Sixth Amendment right to effective assistance of counsel and Sixth Amendment right to choice of counsel( which is limited)
• it deprives your client of 5th & 14th amendment due process rights by unreasonably restricting his right to be heard, by burdening the client with unclear legal requirements, by forbidding vigorous advocacy which the law mandates
• violates privilege against self-incrimination
• it infringes upon your or your client’s constitutional right of freedom of expression and association
• improperly compels disclosure of work product or mental theory/ impressions of the case
7. Respectfully challenge any inaccurate factual statement made by the court, and any erroneous conclusions of law.
– BUT –
Be careful not to utter any factual statements or concessions which arguably might furnish an adequate factual basis for summary contempt;
– AND –
Do not be afraid to refuse to answer any self-incriminating questions.
8. Prepare in advance the documents required to assure presentation of an expeditious motion for bail on appeal.
Take steps to assure the availability of a lawyer to assist if an emergency should arise.
B. ON BEING HELD IN CONTEMPT
If the judge announces his present intention to hold you in contempt, and if your sense of the situation indicates that an apology would be inappropriate or ineffective,
1. Move for precise specification of the charges.
2. Move to withdraw from present case since you cannot represent client under such restrictive conditions.
3. If contempt order comes during trial, move for mistrial on above stated grounds.
4. Request time to retain counsel and to answer the charges.
5. Request that the matter be heard before a different judge, asserting, so far as applicable, that.
(a) The judge has become personally embroiled in the case to the extent that he can no longer proceed with the required objectivity.
(b) You will seek to prove in your defense that the allegedly contemptuous conduct was responsive to provocations on the part of the judge.
6. Do not hesitate to challenge an erroneous factual assertions made by the judge. Failure to do so at this time may result in effective loss of the right to challenge his assertions at a later time. If the factual setting is complex, state clearly that your present exceptions to the judge’s statement are not necessarily your only ones, and that you need additional time to consider his statement.
7. Note specifically every element of the supposed contempt which even arguably falls outside the judge’s personal and official knowledge. Object to summary proceedings on the ground that the judge does not possess the requisite first-hand information.
(a) You have, and should never hesitate to exercise a Fifth Amendment privilege against self-incrimination which prevents the judge from compelling the factual disclosures from you. On the other hand, any information which you provide could equip the judge with the requisite personal knowledge which empowers him to take summary action.
(b) If any witness is called, or any inquiry is made by the judge, insist upon your right to notice and upon an opportunity to retain and consult with counsel. Remember than any inquiry by the judge is an effective negation of the possession by him of the personal judicial knowledge which is an indispensable predicate to summary contempt proceedings.
C. ON ENTRY OF THE FORMAL JUDGMENT OF CONTEMPT
If an order is entered which actually holds you in contempt and imposes punishment:
1. Announce your intention to appeal, and move for bail pending appeal.
2. If the motion is denied, file your notice of appeal with the clerk in the courtroom and renew your motion. (If assistance is available, have the notice of appeal filed in the clerk’s office and get a stamped copy for future use.)
3. If bail is again denied, immediately prepare the best record available, authenticating the documents by affidavit, rather than clerk’s certificate in order to avoid delay, and file the documents with the motion for bail in the appellate court.
D. WHAT ARE YOUR RIGHTS IF FOUND IN CONTEMPT?
In Share Corp. v. Pro-Specialists, Inc., 107 Wis. 2d 318, 320 N.W. 2d 24 (Ct. App. 1982), the court of appeals held that a non summary criminal contempt proceeding is not a criminal action subject to the provisions of Ch. 973, Wis. Stats. The court in Share Corp went on to delineate the law in contempt of court in Wisconsin, beginning at 107 Wis. 2d 323.
There are two forms of contempt of court – civil and criminal. Civil contempt is remedial and coercive. It generally involves the enforcement of a private right through fines or imprisonment which can be purged by compliance with the order that led to the contempt. Criminal contempt, on the other hand, involves punishment for past actions that is determinate and not purgeable. Its purpose is to vindicate the authority and dignity of the court.
All courts of record have the inherent power to punish for criminal contempt those who willfully and intentionally disobey their lawful orders. However, that power is subject to reasonable legislation regulation. Section 757.04, Stats., outlines the procedure to be followed in criminal contempts. Unless the conduct which is thought to be contempt is committed within the presence of the court, the non summary procedure provisions of sec. 757.04 (2) are applicable. A non summary criminal contempt must be prosecuted on notice and verified petition by the district attorney, attorney general or a specially appointed attorney. The defendant is entitled to a reasonable time to prepare the defense, the right to bail, the substitution of a judge, and a presumption of innocence until proven guilty beyond a reasonable doubt. The defendant is also entitled to a right against self-incrimination, the right to call witnesses, and the right to a jury trial if the sentence is for more than six months.
Section 757.06, Stats. defines the available sanctions for criminal contempt. Under sec. 757.06 (2), punishment for a non summary criminal contempt “in no case may exceed” a $5,000 fine and/or imprisonment for one year. Section 757.06 (3) specifically provides that “[f]ines collected… may not be applied for the benefit of any party in a civil proceeding.”
Costs are penal in nature. We conclude that the language of sec. 757.06, Stats., prohibits the imposition of any penalty, including the assessment of costs, over and above the fines and imprisonment for non summary criminal contempt.
NOTE: The contempt sections of ch. 757, Wis. Stats., noted in the Share Corp. decision have been renumbered and are currently found at ch. 785, Wis. Stats.
Holt v. Virginia, 381 U.S. 131 (1965), affirming counsel’s right and duty to make any motion reasonably necessary to advance a client’s cause (in this case, motions to disqualify trial judge and for change of venue). Remember, criminal defense counsel “is not a potted plant.”
Cammer v. United States, 350 U.S. 399 (1956), held that defense attorney could not be found in contempt for conducting mail survey of federal grand jurors as to their bias against communist defendants.
Maness v. Meyers, 419 U.S. 449 (1975), held than an attorney could not be held in contempt for advising his client not to turn over potentially incriminating evidence requested by subpoena.
Chap. 785, Wis. Stats. and Annotations
Matter of Contempt in State v. Kruse,—Wis. 2d —, 533 N.W. 2d 819 (1995) reversing, 186 Wis. 2d 323
Gower v. Marinette County Circuit Court, 154 Wis. 2d 1(1990)
Lemmons v. Racine County Circ. Court, 148 Wis. 2d 740 (Ct.App. 1989)
Share Corp. v. Pro-Specialist, Inc., 107 Wis. 2d 575 (Ct. App. 1986)
State v. Dickson, 53 Wis. 2d 532(1972)
Tess-Mattner, “Civil and Criminal Contempt in Wisconsin,” 66 Marquette Law Review 369 (1983).
Boer, Note- “Due Process- Power of Legislature to Punish For Contempt” 1973 Wis. Law Review 268
Dobbs, “Contempt of Court: A Survey,” 56 Cornell L. Rev. 183 (1971).
Annotations: 14 L. Ed. 2d 934, 12 A.L.R. 2d 1059, and general ALR Index to Annotations under “Contempt”