CONTEMPT
Creed McGinley
OBJECTIVES

To define and analyze the source of
contempt powers.

To distinguish between criminal and
civil contempt.

To identify limitations on our contempt
powers.

To provide judges with basic
background and procedural checklists
to deal with contempt situations.
CONTEMPT
Introduction
“ O! It is excellent
To have a giant’s strength; but it is
tyrannous
To use it like a giant.”
A Court must
possess the
authority
to protect itself
against those who
disregard its
dignity and
authority.
CONTEMPT Power is exercised to. . .
Maintain order and decorum
Punish for disrespect shown
to Court or its orders
Enforce the Court’s writs
orders
&
Punish acts which obstruct the
administration of justice
5
“Walk softly and carry a big stick”
Theodore Roosevelt
“Walk tall and
carry a big
stick”
-- Buford Pusser
6
“If there is any s-- of a
b---- in a person,
put a black robe
on them and
it will come out.”
--
Dickie Jerman
7
History & Source of
Contempt Powers
Statutory
Inherent
Scott v State, 109 Tenn, 390,
71 S.W. 824 (1902)
State v Beeler S.W.3d 511
(2012)
Loy v. Loy, Tenn App 450,
222 SW 2d 873 (1949)
Statutory Authority & Punishments
1. General - T.C.A. § 29-9-102 – Scope of Power
Power to issue attachments or inflict punishments exist
in the following cases:
•
Willful Misbehavior
•
Willful Disobedience or Resistance
•
Abuse or Interference with . . .
•
The Jury
•
Any other act or omission (declared by law)
Statutory Authority & Punishments
2. Domestic - T.C.A. § 36-5-104
Failure to comply w/ child support order – Criminal
Sanction
3. Profanity - T.C.A. § 29-9-107
Profanely swears or curses in presence of court (Class C
Misdemeanor)
4. Violation of Anti-Nuisance Injunction - T.C.A. §
29-3-111 Any person who enters or uses any building or
place while closed under a preliminary or permanent
injunction
Statutory Authority & Punishments
5. Contempt - T.C.A. § 16-1-103
For the effectual exercise of its powers, court is vested w/ power to
punish for contempt (As provided in this Code section).
6. Punishment - T.C.A. § 29-9-103
May be a Fine or Imprisonment or both Circuit, Chancery, &
Appellate courts – Fine up to $ 50 & up to 10 days
All other courts – Limited to fine of $ 10
7. Damages - T.C.A. § 29-9-105
Performance of forbidden act May be imprisoned until the act is
rectified by returning to status quo or by payment of damages.
Statutory Authority & Punishments
8.
9.
Omission to Perform Act - T.C.A. § 29-9-104
Omission to perform an act which is in person’s power to
perform. May be imprisoned until act is performed.
Municipal Citation - T.C.A. § 29-9-108
Willful failure to appear in court w/o just cause
Fine of up to $ 10 and imprisoned for up to 5 days
10. Violation of Order of Protection - T.C.A. § 36-3-610
Violation of Order – In accordance with the law
No difference between general session’s and court of record’s authority
provided general session’s judge is a licensed attorney
A civil penalty of $ 50 may be assessed
Court Rule
Tennessee Rules of Criminal Procedure - Rule 42
Criminal Contempt
Summary Disposition
Disposition upon
Notice & Hearing
Court Rule
Tennessee Rules of Civil Procedure
– P. 45.06 – Contempt
– P. 65.06 – Enforcement of Restraining Orders
& Injunctions
Tennessee Rules of Juvenile Procedure
– P. 1(b)
14
Terms & Concepts

Direct v. Indirect Contempt
– Direct
Committed in presence of judge & punishable summarily
– Indirect
Not in presence of judge & only after notice of hearing

Criminal v. Civil Contempt
(Depends on the purpose for which the power is exercised)
– Criminal
Primary to preserve Court’s authority & punish for disobedience of
its orders
– Civil
Primary is to provide a remedy or injured suitor & coerce
compliance with an order
15
Terms & Concepts
Judge Koch describes the difference as:

Civil contempt
– Intended to benefit the litigant
– Imposed to compel compliance (parties in contempt may
purge themselves through compliance)

Criminal contempt
– Intended to punish for an offense against the authority of the
court
– Imposed as punishment for failure to comply (contemptuous
party cannot be freed through eventual compliance)
16
Terms & Concepts
Contemnors
–
–
–
–
–
–
Attorneys
Jurors
Witnesses
Litigants
Domestic
“Professional”
(repeaters who buck
system)
17
Limitations on Powers & Right of Defendants
CONSTITUTIONAL RIGHTS & DUE PROCESS
1.
Right to Attorney –
Sevier v. Kenneth Turner, 742 F 2d 262 (6th Cir 1984)
Mastin v. Fellerhoff, 526 F Supp 969 (SD Ohio 1981)
2.
Conflict Free Prosecutor –
Wilson v. Wilson, 984 SW 2d 898 (Tenn 1998)
Young v US ex rel Vuitton, 481 US 787, 107 S Ct 2124 (1987)
3.
Confrontation –
Guthrie v Oldham, No 85-118-III (Tenn Crim App. Filed May 9,
1985)
18
Limitations on Powers & Right of Defendants
CONSTITUTIONAL RIGHTS & DUE PROCESS
4.
Notice –
United States v. United Mine Workers of America, 330 US 258, 297, 67 S Ct
677 (1947)
Storey v. Storey, 835 SW 2d 593, 599-600 (Tenn App 1992)
5.
Burden of Proof –
Criminal Contempt – Beyond a reasonable doubt.
State ex rel Anderson v. Daughery, 137 Tenn 126, 191 SW 974 (1916)
O’Brien v. State ex rel Bibb, 26 Tenn App 270, 170 SW 2d 931 (1943)
Civil Contempt – Clear & convincing evidence.
Oriel v. Russell, 278 US 358, 364,49 S Ct 173 (1929)
Wright, supra at § 3-16. P 136
19
Limitations on Powers & Right of Defendants
CONSTITUTIONAL RIGHTS & DUE PROCESS
6.
Right to Remain Silent –
Gompers v. Bucks Stove,
221 US 418,444, 31 S Ct 492 (1991)
Kornick v. Kornick, 3 Tenn Civ App 41, 44 (1931)
7.
Double Jeopardy –
Most courts have previously held that double jeopardy is no bar to
conviction for contempt & a criminal conviction for essentially
the same act. Maples v. State, 565 SW 2d 202,203 (Tenn
1978)
20
Limitations on Powers & Right of Defendants
NO RIGHT TO TRIAL BY JURY
Dyke v. Taylor Implement Manufacturing Company 391 US 216,
88 S Ct 1472 (1968)
Pass v State 181 Tenn 613, 183 S W 2d 1, (1944)
Robinson v. Gaines, 725 SW 2d 992, 695 (Tenn Crim App 1986)
CAVEAT – There is also no right to a jury trial in a civil
contempt proceeding.
Weinstein v. Heinberg, 490 SW 2d 692 (Tenn App 1992)
21
Limitations on Powers & Right of Defendants
RIGHT TO UNBIASED JUDGE
State v. Swisher, 676 S W 2d 576 (Tenn Crim App1984)
Defendant does not disrespect or criticize trial judge –
Trial judge not required to disqualify himself.
State v. Green, 708 S W 2d 424 (Tenn Crim App 1986)
Three contempt charges involved criticism of judge –
Judge should have recused himself.
22
Limitations on Powers & Right of Defendants
CONTEMPT & AN ERRONEOUS ORDER
Principle underlying contempt powers so strong –
Even erroneous orders must be obeyed or risk contempt.
Walker v. City of Birmingham, 388 US 307, 98 S Ct (1967)
State v. Sammons, 656 S W 2d 86d2, 869 (Tenn Crim App 1982)
Nucular Fuel v. Local Union, 719 S W 2d 550, 552 (Tenn Crim App 1986)
Overnite Transportation Co. v. Teamsters Local Unio No 480 et al, TN
Supplement May 16, 2005)
23
Disposition
From ABA Standards for Criminal Justice 2d Ed. 1980
STANDARD
6-4.2
Admonition & Warning –
No sanction other than censure
unless:
Character or Acts clearly contemptuous
Conduct warranting sanction preceded by
a clear warning about impermissibility of
conduct and potential sanctions
24
Disposition
From ABA Standards for Criminal Justice 2d Ed. 1980
STANDARD 6-4.3
Notice of Intent to Use Contempt Power:
Postponement of Adjudication

Judge should inform alleged offender of intention to
institute proceedings as soon as practicable.

Judge should consider advisability of deferring
adjudication of contempt until after the trial unless
prompt action is imperative.
25
Disposition
From ABA Standards for Criminal Justice 2d Ed. 1980
Notice of Charge &
Opportunity to be Heard –
Before imposing punishment,
Offender should be given:
STANDARD
6-4.4
– Notice of charges and
– An opportunity to adduce evidence
or argument relevant to guilt or
punishment.
26
Contempt for Violation of Orders
REQUIREMENTS
ORDERS INCLUDED


ALL orders

NOT JUST final orders

Error or irregularity is not
justification for not obeying

Need not be entered yet


Knowledge of the
order
Within court’s
jurisdiction to make
Willful violation of
order
State v. Green, 783 S W
2d 548 (Tenn 1990)
27
Contempt for Violation of Orders
PROBLEM AREAS
DEFENSES:

Contempt findings required

Lack of jurisdiction

Orders may not put
everyone on notice.
B.A.S.I.C v. Kemp, 947 F
2d 11 (1st Cir, 1991)

Impossibility

Anticipatory Contempt. Keeley v
Massey, No 02A01-9307-CH00159 (Tenn App, W S, Feb 28,
1994)

Statute of Limitations

Commissioner not always
personally required to
appear. Simerly v. Norris,
No 1071 (Tenn Crip App,
March 26, 1987)
28
Cases of Special Interest
Criticism of Judges
Pro se litigant (In contempt)
“star chamber, hatchet court, crooked
judge, kangaroo trial” McGray v Adcox,
399 SW 2d 753 (Tenn, 1966)
Lawyer criticizes judge in press
(Not in contempt) No case
pending & comment not about a
particular case. In re Hicky, 149
Tenn 344, 258 SW 417 (1923)
Admin of courts criticized by
lawyer (Contempt unsupported)
In re Snyder, 472 US 634, 105 S ct
2874 (1985)
29
Cases of Special Interest
The Chicken Man
Contempt Conviction overturned
because defendants dressed
like chickens.
State v. Hodges, 695 SW 2d 171 (Tenn
1985)
Dead Beat Parent Who
Won’t Work
(Even the lack of employment is
no defense to the failure to
actively seek & accept
employment.)
Street
Vernacular
Witness in trial
who referred
to assailant
as “chicken
shit” should
not have
been held in
contempt.
Eaton v. City of
Tulsa, 415 US
697, 94 S Ct
1228 (1974)
Boyd v. Boyd, 8 T A M 1-12 (Tenn App E S
1982)
State ex rel Moore v. Owens, 15 T A M 11-17
(Tenn App M S Feb 7, 1990)
30
Cases of Special Interest – Conduct of Lawyer

Lawyer constantly
interrupts judge and
during prosecutor’s
argument, assumed a
“crucifixion stance”


Attorney who refused
appointment
Lawyer in contempt
for disrespect &
misconduct
31
Cases of Special Interest – Conduct of Lawyer
LATE TO COURT
 Secretary’s fault - No defense
State v. Richard Donnell, 9 TAM 7-38
(Tenn Crim App Dec 20, 1983)
 Scheduling Conflict - Conviction Reversed
No intent for criminal contempt.
In re Edward Witt Chandler, 906 F 2d 248 (6th Cir 1990)

Business Destroyed by Fire previous night
Judge fined $ 25
United States v. Anonymous, 215 F Supp 111 (D.C. Tenn
1963)
32
Cases of Special Interest – Conduct of Lawyer

No contact w/ witness by court order.
Defense lawyer held in contempt following witness interview.
State v. Robert Friedman, no 89-88-III (Ct Crim App March 8, 1990)

Two Lawyers fight in hall.
No contempt as not in presence of court (room). Fight in
courtroom is different.
Edwards v. Jameson, 679 S W 2d 195 (Ark 1984)
Contra United States v. Patterson, 26 F 509 (6th Cir 1886)

Court Order & Willful Violation
Attorney violates court order but claims careless not willful.
“OOPS” is not a valid defense.
In re Zimmerman, No 85-331-III (Ct of Crim App Aug 7, 1986)
33
Cases of Special Interest
Attorney Fees & Contempt
 Jury in Contempt
 Advice of Counsel as a Defense
 Sheriff’s Mistreatment of Pretrial
Detainee
 Perjury
 Intoxication in Court

34
Cases of Special Interest
Contempt – Awarding of
Damages
 T-Shirt
 Deposition Misconduct

35
Direct Criminal Contempt
ELEMENTS Checklist (Rule 42(a))

Conduct occurs in the presence of the
judge?
 Actor knows or should the actor know that
conduct is impermissible?
 Actor knows the consequences of
continuing?
 Conduct is willful or intentional?
36
Direct Criminal Contempt
ELEMENTS Checklist (Rule 42(a))

Is the conduct:
Obstructive?
Disruptive?
Interruptive?
Derogatory

Are immediate actions
necessary to maintain order
& decorum or to preserve the
authority of the judge?
37
Direct Criminal Contempt
DISPOSITION Checklist (Rule 42(a))
Take a recess!
Make findings on the record for each of the
elements of direct criminal contempt.
Give the actor an opportunity to respond to
the findings.
Make a finding of guilt.
Give the actor an opportunity for allocution.
38
Direct Criminal Contempt
DISPOSITION Checklist (Rule 42(a))
 Summarily impose
penalties:
Statutory fine (< $50)
Sentence (< 10 days)
Other restrictive
sanctions
 Order of Contempt
shall:
Recite the facts,
Be signed by
judge, and
Entered into the
record.
39
Indirect Criminal Contempt
ELEMENTS Checklist (Rule 42(b))

Conduct occurs outside the presence of
the judge?

Actor knows or should the actor know that
conduct is impermissible?

Actor knows the consequences of
continuing?

Conduct is willful or intentional?
40
Indirect Criminal Contempt
ELEMENTS Checklist (Rule 42(b))

Is the conduct:
Obstructive?
Disruptive?
Interruptive?
Derogatory

Are immediate actions
necessary to maintain order
& decorum or to preserve the
authority of the judge?
41
Indirect Criminal Contempt
DISPOSITION Checklist (Rule 42(b))
Take a recess!
Give notice of time & place of hearing
allowing reasonable time for preparation of
defense AND state the essential facts
constituting criminal contempt charged.
(May be oral in open court or by charging
instrument.)
If charge involves disrespect to or criticism of
judge, recusal mandatory.
42
Indirect Criminal Contempt
DISPOSITION Checklist (Rule 42(b))
Make finding of guilt beyond a reasonable
doubt.
Upon finding of guilt by court, order to be
entered fixing punishment:
Fine (< $50)
Jail Sentence (< 10 days)
43
Direct Contempt - Civil
ELEMENTS Checklist

Conduct occurs in the presence of the judge?

Actor knows or should the actor know that conduct
is prohibited or directed by the order of the court?

Actor knows the consequences of continuing?

Conduct is willful or intentional?

Is punishment necessary to compel compliance w/
order?
44
Direct Contempt - Civil
DISPOSITION Checklist
 Take a recess!
 Make findings on the record of each element.
 Make a finding of guilt.
 Give actor final opportunity to comply & to purge the
contempt.
 Summarily impose any reasonable fine and/or
sentence which TERMINATES upon compliance w/
the order.
45
Indirect Contempt - Civil
ELEMENTS Checklist

Conduct occurs outside the presence of the judge?

Actor knows or should the actor know that conduct
is prohibited or directed by the order of the court?

Actor knows the consequences of continuing?

Conduct is willful or intentional?

Is punishment necessary to compel compliance w/
order?
46
Indirect Contempt - Civil
DISPOSITION Checklist
 Upon notice of violation of court’s order, notice the
actor to appear and to show cause why he/she
should not be held in contempt.
 After hearing, make findings on the record of each
element.
 Make a finding of guilt.
 Grant actor a reasonable time to purge the contempt.
 Upon a failure to purge, impose any reasonable fine
and/or sentence which TERMINATES upon
compliance w/ the order.
47
Where to Get More Information
General Reference Materials on Contempt
Raybin, Criminal Practice and Procedure § 24. 14-15
(1985)
Pivnick, Tennessee Circuit Court Practice § 3-16 (1991)
Burch, Trial Handbook For Tennessee Lawyers § 49-54
(1980)
Wright, Federal Practice and Procedure (Criminal) § 701713 (2nd Ed.1982)
Feldman, Criminal Offenses and Defenses in Tennessee,
p. 122-133 (1988)
Garrett, Tennessee Divorce, Alimony and Child Custody §
16-2-4 (1995 Ed)
When a ship
misses the
harbor,
it is
rarely
the fault
of the
HARBOR!!
49