Judge Robert N. Scola, Jr.
February 10, 2010
• IDENTIFY TYPES OF CONTEMPT
• ADVISE JUDGES HOW TO CONDUCT
HEARING FOR EACH KIND OF
CONTEMPT
• PREPARE WRITTEN ORDER
• IMPOSE APPROPRIATE SANCTIONS
WHAT IS CONTEMPT?
• Refusal to obey legal order, mandate or
decree by Judge. Section 38.23 Florida
Statutes
• An act tending to embarrass, hinder or
obstruct the court.
KINDS OF CONTEMPT
EVERY CONTEMPT IS EITHER
• DIRECT OR INDIRECT
AND
• CRIMINAL OR CIVIL
DIRECT V. INDIRECT CONTEMPT
• DIRECT CONTEMPT OCCURS IN THE
PRESENCE OF THE COURT
• INDIRECT CONTEMPT OCCURS OUTSIDE
THE PRESENCE OF THE COURT
CRIMINAL V. CIVIL CONTEMPT
• CRIMINAL CONTEMPT IS DESIGNED TO
PUNISH OR VINDICATE THE AUTHORITY
OF THE COURT
• CIVIL CONTEMPT IS DESIGNED TO
COMPEL COMPLIANCE WITH A COURT
ORDER OR COMPENSATE AGGRIEVED
PARTY
• THERE CAN BE CRIMINAL CONTEMPT IN
A CIVIL CASE OR CIVIL CONTEMPT IN A
CRIMINAL CASE
DIRECT CIVIL CONTEMPT
• OCCURS IN THE PRESENCE OF THE
COURT
• NO STATUTE, RULE OR CASE LAW
SPECIFICALLY AUTHORIZING
• ONLY MENTIONED IN ONE CASE
SCENARIO 1
FORMER HUSBAND REFUSES TO OBEY
DIRECT ORDER IN OPEN COURT TO SIGN
FORM NAMING FORMER WIFE AS
BENEFICIARY OF PENSION. CAN HE BE
INCARCERATED UNTIL HE SIGNS?
• AN INDEFINITE PERIOD OF
INCARCERATION IS A VALID SANCTION
TO COERCE COMPLIANCE WITH A
COURT ORDER
• ORDER OF INCARCERATION MUST
CONTAIN PURGE PROVISION
SCENARIO 2
FORMER HUSBAND RETIRES AND NOW CANNOT
CHANGE BENEFICIARY. MUST HE BE RELEASED FROM
JAIL?
• CIVIL CONTEMPT IS MEANT TO COERCE, NOT
PUNISH
• THE CONTEMNOR MUST HAVE THE PRESENT
ABILITY TO COMPLY: HE MUST “HOLD THE KEY
TO HIS OWN JAIL CELL” OR THE CONTEMPT
BECOMES CRIMINAL CONTEMPT
DIRECT CRIMINAL CONTEMPT
• Occurs in the presence of the Judge
“Under the eye of the court”
• Summary proceedings
• Reserved for exceptional circumstances,
e.g. acts that threaten a judge, disrupt a
hearing or obstruct court proceedings
• Must give contemnor opportunity to
explain conduct before adjudication and
must give contemnor opportunity to present
mitigating circumstances before sentence
• Must be proven beyond reasonable doubt
SCENARIO 4
VINNY FIRMLY BELIEVES THAT THE
JUDGE’S ORDER IS LEGALLY INCORRECT
AND THAT IS WHY HE HAS VIOLATED IT.
CAN JUDGE STILL HOLD VINNY IN
CONTEMPT?
•EVEN LEGALLY INCORRECT ORDER
MUST BE FOLLOWED– PARTY MAY
APPEAL
SCENARIO 5
PRO SE LITIGANT ASKS FOR A RECESS SO
THAT HE CAN RETAIN COUNSEL. SHOULD
REQUEST BE GRANTED?
• Rule 3.830 provides for summary
proceeding in direct criminal
contempt; taking recess converts
action into indirect criminal contempt
with additional procedural safeguards
SCENARIO 6:
COURT IMPOSES THE FOLLOWING
SENTENCE:
•
•
•
•
6 MONTHS IN JAIL
$750.00 FINE
ATTORNEY’S FEES TO OTHER PARTY
ORDER RESTRICTING VINNY FROM
APPEARING IN COURT AGAIN
WITHOUT CO-COUNSEL
• REQUIRING VINNY TO WRITE 1000
TIMES “I WILL NOT DISOBEY THE
JUDGE”
ARE THE FOLLOWING SANCTIONS PROPER?
• JAIL SENTENCE OF 6 MONTHS:
• 775.02 AUTHORIZES SENTENCE NOT TO
EXCEED ONE YEAR FOR CONTEMPT.
• NO JURY REQUIRED IF SENTENCE IS SIX
MONTHS OR LESS
• FINE OF $750.00:
• FINE MAY NOT EXCEED $500.00; 775.02
• ATTORNEY’S FEES:
• AWARD OF ATTORNEY’S FEES FOR COURT’S
WASTED TIME NOT PROPER FOR CRIMINAL
CONTEMPT
• RESTRICT ATTORNEY FROM
APPEARING WITHOUT CO-COUNSEL:
• COURT MAY NOT RESTRICT ATTORNEY
FROM PRACTICE OF LAW BY REQUIRING
ATTORNEY TO APPEAR WITH COCOUNSEL
• WRITING 1000 TIMES:
• IMPROPER SANCTION: IF CONTRIVED
TO INSTILL CONTRITENESSUNNECESSARY. IF CONTRIVED FOR ANY
OTHER PURPOSE-ABUSE OF
DISCRETION
SCENARIO 7
VINNY’S JUDGE WRITES THE FOLLOWING
ORDER: “VINNY HAS ENGAGED IN INJUDICIOUS,
UNETHICAL AND INTEMPERATE CONDUCT.” IS
THIS SUFFICIENT?
• THE JUDGMENT OF GUILT OF CONTEMPT
SHALL INCLUDE A RECITAL OF THOSE FACTS
UPON WHICH THE ADJUDICATION IS BASED:
• THESE COMMENTS ARE CONCLUSIONS, NOT
FACTS.
• ORDER WAS LEGALLY INSUFFICIENT
ELEMENTS OF PROPERLY
WRITTEN ORDER
• RECITATION OF SPECIFIC FACTS UPON
WHICH THE CONTEMPT WAS BASED
• DEFENDANT AFFORDED OPPORTUNITY TO
PRESENT MITIGATING CIRCUMSTANCES
• ADJUDICATION OF GUILT FOR CONTEMPT
• SENTENCE IMPOSED
• ADVISE OF RIGHT TO APPEAL WITHIN 30
DAYS AND RIGHT TO APPOINTED COUNSEL
FOR APPEAL
SCENARIO 8
MAY WITNESS BE HELD IN CONTEMPT
FOR PERJURY
• MERE FACT THAT COURT BELIEVES
ONE WITNESS OVER ANOTHER IS
INSUFFICIENT TO ESTABLISH
CONTEMPT
• WHERE WITNESS’ TESTIMONY IN
OPEN COURT WAS “DIAMETRICALLY
OPPOSITE” TO HIS OWN PREVIOUS
TESTIMONY, OK TO HOLD IN
CONTEMPT
SCENARIO 9
IS DISRUPTION IN HALLWAY OUTSIDE
COURT CONTEMPT?
• THERE MUST BE EVIDENCE THAT THE WORDS
WERE DIRECTED AT THE COURT OR INTENDED
TO INTERRUPT OR HINDER JUDICIAL
PROCEEDINGS
• WAS REMARK CALCULATED TO LESSEN
COURT’S AUTHORITY OR DIGNITY?
• WHERE DEFENDANT KICKED DOOR AND
TOLD BAILIFF “F … YOURSELF” OK TO HOLD IN
CONTEMPT: CALCULATED TO LESSEN
COURT’S AUTHORITY OR DIGNITY
SCENARIO 10
CAN DEFENDANT BE HELD IN CONTEMPT
FOR SHOWING UP IN COURT WITH
MARIJUANA IN SYSTEM?
• NO. THERE WAS NO EVIDENCE HE WAS
UNDER THE INFLUENCE IN COURT OR HAD
VIOLATED A COURT ORDER
• HOWEVER, DEFENDANT WHO PASSED OUT
IN COURT BECAUSE HE “DID A LITTLE
COKE” THAT MORNING COULD BE IN
CONTEMPT BECAUSE HE OBSTRUCTED
ADMINISTRATION OF JUSTICE
SCENARIO 11
CAN ENTIRE STATE ATTORNEY’S OFFICE
BE HELD IN CONTEMPT OF COURT?
• ANY ACTIONS BY OTHERS IN THE SAO
WOULD HAVE OCCURRED OUTSIDE THE
PRESENCE OF THE COURT
SCENARIO 12
ONCE TRIAL RESUMES, JURY RETURNS
VERDICT FOR DEFENDANTS. VINNY
POUNDS TABLE AND YELLS “YES!!”
CAN HE BE HELD IN CONTEMPT FOR
OUTBURST?
• UNLESS GIVEN SPECIFIC DIRECTIONS
NOT TO DISPLAY REACTION TO VERDICT,
CANNOT HOLD IN CONTEMPT
INDIRECT CIVIL CONTEMPT
• Occurs outside presence of the court
• Meant to coerce compliance with court
order or compensate party
• Willful refusal despite present ability to
comply
• Contemnor “holds keys to his jail cell”
• Because it is civil and not criminal,
contemnor is not entitled to the same due
process rights
SCENARIO 13
MOTHER FAILS TO PAY CHILD SUPPORT
AND PRESENTS NO EVIDENCE OF
INABILITY TO PAY
• INITIAL BURDEN IS ON MOVANT TO SHOW:
•A. PRIOR COURT ORDER
•B. FAILURE TO PAY
• THERE IS A PRESUMPTION BASED UPON
PRIOR COURT ORDER OF ABILITY TO PAY
• BURDEN THEN SHIFTS TO RESPONDENT TO
SHOW INABILITY TO PAY
SCENARIO 13 (CONTINUED)
• IF COURT FINDS A WILFUL VIOLATION, THERE
MUST BE A SEPARATE, AFFIRMATIVE FINDING
OF PRESENT ABILITY TO PAY THE PURGE
AMOUNT
• COURT MUST SPECIFICALLY IDENTIFY THE
SOURCE OF THE FUNDS AVAILABLE TO PAY
THE PURGE AMOUNT
SCENARIO 14
MOTHER SPENDS MONEY AT CASINO INSTEAD
OF PAYING COURT ORDERED SUPPORT
• IF CONTEMNOR WILLFULLY DIVESTS
HERSELF OF ABILITY TO COMPLY THROUGH
HER OWN FAULT, WITH INTENT AND PURPOSE
OF VIOLATING COURT ORDER, THIS IS NOT
CIVIL CONTEMPT BECAUSE SHE NO LONGER
HAS THE ABILITY TO COMPLY
• THIS WOULD CONSTITUTE INDIRECT
CRIMINAL CONTEMPT
SCENARIO 15
MAY CONTEMPT HEARING BE HELD AND
INCARCERATION BE IMPOSED WHERE
CONTEMNOR FAILS TO APPEAR AT HEARING
• IN INDIRECT CIVIL CONTEMPT
PROCEEDING:
• IF FATHER FAILS TO APPEAR AT HEARING
AFTER PROPER NOTICE TO APPEAR, HE MAY
BE HELD IN CONTEMPT AND A WRIT OF
BODILY ATTACHMENT ISSUED
SCENARIO 16
IS ADDITIONAL HEARING REQUIRED WHEN
FATHER IS ARRESTED 30 DAYS LATER?
• A CIVIL CONTEMNOR IS ENTITLED TO A
HEARING TO DEMONSTRATE INABILITY TO
COMPLY WITH PURGE PROVISIONS EVEN AFTER
CONTEMPT…
• PARTICULARLY WHERE ORDER OF CONTEMPT
WAS ENTERED A SUBSTANTIAL PERIOD OF TIME
BEFORE ARREST
SCENARIO 17
MUST CONTEMPT BE PROVEN BEYOND
REASONABLE DOUBT WHERE JAIL
SENTENCE IS IMPOSED?
• BURDEN OF PROOF FOR CIVIL
CONTEMPT IS PREPONDERANCE OF THE
EVIDENCE, REGARDLESS OF THE
SANCTION
SCENARIO 18
MAY RETROACTIVE AND FUTURE FINES BE
IMPOSED TO COERCE COMPLIANCE WITH
COURT’S DISCOVERY ORDER?
• IF FINE IS RETROACTIVE WITHOUT PURGE
PROVISION, IT BECOMES CRIMINAL CONTEMPT
• IF FINE IS TO COERCE OR COMPENSATE AND
ALLOWS FOR PURGE PROVISION, IT IS
APPROPRIATE INDIRECT CIVIL CONTEMPT
SCENARIO 19
MAY CONTEMNOR BE SENTENCED TO
INDEFINITE PERIOD OF INCARCERATION
FOR FAILURE TO PAY IF SHE HAS THE
PRESENT ABILITY?
• SENTENCE OF INCARCERATION FOR
INDIRECT CIVIL CONTEMPT MAY BE FOR A
FIXED OR INDEFINITE PERIOD
• BUT SET FOR STATUS PERIODICALLY
SCENARIO 20
MAY PARTY BE HELD IN CONTEMPT FOR
FAILING TO PAY COURT ORDERED DEBT?
• DEBTS NOT INVOLVING SUPPORT
CANNOT BE ENFORCED BY COURT’S
CONTEMPT POWER
• IF MATTER RELATES TO COURT’S
EQUITABLE DISTRIBUTION SCHEME,
CONTEMPT IS NOT AVAILABLE
SCENARIO 21
IS PARTY ENTITLED TO COURT APPOINTED
ATTORNEY FOR INDIRECT CIVIL CONTEMPT
WHERE A JAIL SENTENCE IS POSSIBLE
• THOUGH RESPONDENT HAS A RIGHT TO
OBTAIN COUNSEL, 14TH AMENDMENT
DOES NOT REQUIRE THE COURT TO
APPOINT COUNSEL FOR INDIGENT CIVIL
CONTEMNOR
SCENARIO 22
MAY COURT ORDER PAYMENT OF EXPENSE OF
RENTAL CAR WHERE HUSBAND FAILED TO
COMPLY WITH COURT ORDER?
• CIVIL CONTEMPT PROCEEDINGS MAY BE
USED TO EITHER:
•COMPENSATE INJURED PARTY FOR LOSSES
SUSTAINED OR
•COERCE OFFENDING PARTY TO COMPLY
WITH PREVIOUS COURT ORDER
SCENARIO 23
MAY COURT CHANGE CUSTODY AS A SANCTION
FOR VIOLATION OF A COURT ORDER
• CONTEMPT SHOULD NOT BE USED AS A
BASIS FOR CHANGE OF CUSTODY
• ALL DECISIONS RELATING TO
CUSTODY/VISITATION OF CHILDREN MUST BE
MADE IN THE BEST INTEREST OF THE
CHILDREN
ORDER OF INDIRECT CIVIL
CONTEMPT
• STATE RESPONDENT HAS BEEN ADJUDICATED OF
INDIRECT CIVIL CONTEMPT
• DATE OF ORIGINAL ORDER
• AFFIRMATIVE FINDING OF WILLFUL VIOLATION
• SPECIFIC FACTS OF VIOLATION
• FINDING OF PRESENT ABILITY TO COMPLY
• SEPARATE FINDING OF PRESENT ABILITY TO COMPLY
WITH PURGE PROVISIONS
• SPECIFY SENTENCE (EITHER FIXED OR INDEFINITE)
• SET PRECISE PURGE PROVISION
• IDENTIFY SOURCE OF PURGE SATISFACTION
INDIRECT CRIMINAL CONTEMPT
• This is a criminal charge and like any criminal
charge (except for direct criminal contempt) the
full panoply of due process rights apply
• These rights include: right to counsel, right to
jury trial (for more than 6 months jail)
• Designed to punish contemnor for conduct
occurring outside presence of the court
• Burden of Proof: Beyond Reasonable Doubt
SCENARIO 24
MAY JUDGE ORDER ARREST TO ENSURE
APPEARANCE AT CONTEMPT HEARING?
• YES, IF JUDGE HAS GOOD REASON TO
BELIEVE SHE WILL NOT ATTEND HEARING,
JUDGE SHOULD ISSUE WARRANT FOR
CONTEMNOR’S ARREST OR WRIT OF BODILY
ATTACHMENT
• UPON ARREST, CONTEMNOR IS ENTITLED TO
BOND HEARING AND RELEASE UPON SAME
CONDITIONS AS APPLY TO OTHER CRIMINAL
CHARGES
SCENARIO 25
MUST JUDGE RECUSE SELF FROM
CONTEMPT PROCEEDINGS?
• JUDGE MUST DISQUALIFY SELF ONLY IF THE
CONTEMPT INVOLVES PERSONAL
DISPRESPECT OR CRITICISM OF THE JUDGE
SCENARIO 26
MUST ALLEGATIONS IN ORDER TO
SHOW CAUSE BE MADE UNDER OATH?
• ORDER TO SHOW CAUSE BASED UPON
UNSWORN AFFIDAVIT WAS LEGALLY
INSUFFICIENT
• THINK ABOUT AN INFORMATION OR
INDICTMENT IN CRIMINAL CASE
SCENARIO 27
MUST JUDGE ALLOW CLOSING
ARGUMENTS IN NON-JURY INDIRECT
CONTEMPT TRIAL?
• TRIAL COURT VIOLATED DEFENDANT’S
RIGHTS BY NOT ALLOWING ARGUMENT
• DEFENDANT ENTITLED TO SAME
CONSTITUTIONAL DUE PROCESS
PROTECTIONS AS ANY OTHER CRIMINAL
DEFENDANT
SCENARIO 28
IS CLAIM OF INABILITY TO COMPLY A
VALID DEFENSE TO CONTEMPT
• INABILITY TO COMPLY IS A VALID
DEFENSE UNLESS THE CONTEMNOR
VOLUNTARILY CREATED THE INABILITY
SCENARIO 29
IS LACK OF INTENT TO VIOLATE ORDER
A VALID DEFENSE TO CONTEMPT
• WHERE DEPUTY HAD TO BORROW
DEPUTIES TO ASSIST IN THE
COURTROOM, INSUFFICIENT EVIDENCE
OF INTENT TO VIOLATE AN ORDER
• HOWEVER, THE MERE FACT THE
CONTEMNOR SAYS HE DID NOT HAVE
INTENT IS NOT BINDING
SCENARIO 30
ARE WRITTEN FINDINGS NECESSARY IF COURT
ANNOUNCES FINDINGS ORALLY ON THE
RECORD?
• WRITTEN JUDGMENT OF CONTEMPT MUST
INCLUDE A WRITTEN STATEMENT OF THE
FACTS
• HOWEVER, WHERE SUFFICIENT ORAL
FINDINGS ARE MADE ON THE RECORD,
WRITTEN FINDINGS OF FACT NOT REQUIRED
FOR INDIRECT CRIMINAL CONTEMPT
• THERE MUST BE A COURT REPORTER
PRESENT SINCE THIS IS A CRIMINAL
PROCEEDING
SCENARIO 31
IS CONTEMNOR ENTITLED TO AN
APPOINTED ATTORNEY?
• INDIRECT CRIMINAL CONTEMPT
PROCEEDING MUST FULLY COMPLY
WITH RULE 3.840 AND DEFENDANT IS
ENTITLED TO COURT APPOINTED
COUNSEL IF INDIGENT
SCENARIO 32
MAY JUVENILE COURT JUDGE IMPOSE 15
DAY SENTENCE WITHOUT CONSIDERING
ALTERNATIVE SANCTIONS?
• COURT MUST CONSIDER ALTERNATIVE
SANCTIONS TO SECURE DETENTION
• ONLY UPON FINDING SUCH WOULD BE
INAPPROPRIATE OR UNAVAILABLE MAY
COURT IMPOSE SECURE DETENTION