No contempt of court this time for dropping the F-Bomb. Besides breaking and violating every procedural safeguard known to man, this conviction for contempt of court cannot be supported by the facts. Even if everything the tattle tale said were true, what she said and the circumstances around how she said it did not make it contempt of court.
People v. Perez, 2014 IL App 120978 (3d) (October).
What Did She Do?
Respondent was in traffic court all morning. In the hallway, a bailiff assigned to a different courtroom heard respondent say, “I waited all fucking morning and now she takes a break and I’m tired of waiting.”
The bailiff thought it was necessary to tattletail and she told the judge what she heard. The judge then charged here with indirect criminal contempt.
Attorney Wasn’t Sure About The Charge
Her attorney asked for continuance to research the charge, answer the charge, and prepare potential witnesses. You know, basic defense attorney stuff. The judge refused the continuance.
The bailiff testified that she went all the way down the hallway using the F-word. When bailiff told Respondent she could not use those words in the courthouse, Respondent stopped. The words were not directed at court personnel or anyone in particular.
The judge clearly stated that she believed the standard was by a preponderance then proceeded to sentence her to 8 days in jail.
Was it contempt of court for this defendant to cuss in the hallway after she was in court all morning before the judge took a break?
What is Contempt of Court Exactly?
Contempt of court is essentially a crime in and of itself.
But it’s different.
Contempt comes in two different flavors which means there are four different types of contempt of court. When, I first had to roll up sleeves with contempt of court situations, I created a cheat sheet to help me make sense of all this stuff.
It can get complicated and confusing, and I found that my chart helped clear everything all up for me.
Civil Contempt of Court
The first flavor of contempt of court comes in understanding the difference between civil contempt and criminal contempt of court.
Civil contempt is coercive in nature. The judge or court wants to force someone to do something. It is considered prospective in nature. That just means the court wants the person to do something in the future. Usually, the very near future.
We say that with civil contempt the contemnor holds the keys to his own cell. We just mean, that he can end the sanction by complying with what the court wants him or her to do. The faster they do it, the sooner they are let out of jail.
Criminal Contempt of Court
Criminal contempt is punitive in nature. The court is not looking into the future, but instead is looking backwards. The goal is to punish behavior that has already happened and the court considers unacceptable.
For example any behavior that goes against these four principles can be punished as criminal contempt of court:
(1) Judges and other court officials are entitled to respect when performing their judicial duties
(2) Judicial proceedings should be conducted in an orderly manner
(3) Court orders should be obeyed; and
(4) Individuals should not commit fraud upon the courts.
Direct v. Indirect
Direct Contempt of Court
Direct contempt of court means that the contemptuous behavior is known to the judge. This usually is true when the person does what they did in court in front of the judge. This is the fastest way to get in trouble.
Direct contempt of court can be either civil or criminal. It depends, on what the court is trying to get done with the sanction. Regardless, of whether it is direct civil contempt or direct criminal contempt, less procedural rights are required.
The law says that with direct contempt –
- May be summarily adjudicated immediately upon occurrence of the contemptuous acts”
- No evidentiary hearing required
- No notice required
- No written charges required
Indirect Contempt of Court
Indirect contempt of court is behavior that is not known to the judge directly. This is usually the case when the contemptuous behaviour occurs outside of the courtroom.
Indirect contempt of court comes with more procedural and constitutional protections for the person being charged. Indirect criminal contempt has the most of these protections.
For example any person who has been charged with indirect criminal contempt is allowed to benefit from the following safeguards:
- “Petition for Adjudication of Criminal Contempt”
- Same constitutionally mandated procedural requirements as other criminal proceedings
- Right to have nature of the charge definitely and specifically set forth in writing
- 5th Amendment right applies
- Presumption of innocence
- Right to court appointed counsel
- Right to public trial
- Right to confront and cross-examine witnesses
- Right to subpoena witnesses
- Admissions in open court may be punished as direct contempt
- Conduct must be shown to be willful
- Ct must recite that defendant found guilty beyond a reasonable doubt
And the adjudication must be in writing, set forth the grounds upon which the contempt is based, contain not merely opinions or conclusions of the trial court but facts showing the basis of the contempt and contain an adjudication of contempt and the sanctions imposed.
There were two main problems or mistakes in this case.
No Procedural Safeguards Obeyed
First, this defendant was clearly being charged with indirect criminal contempt. Notwithstanding the title of the petition and the fact that the judge called it civil contempt. She was sentenced to 8 days in jail and that is punitive.
Thus, this defendant was entitled to all the procedural and constitutional safeguards afforded any person that is charged with a crime. She received virtually, none of these safeguards.
The petition was titled “Petition for Rule To Show Cause”. That was a mistake since this language applies only in proceedings for indirect civil contempt and impermissibly shifts the burden of proof to respondent. In re Marriage of Betts, 200 Ill. App. 3d 26, 58-59 (1990).
This created a great deal of confusion for the court concerning the proper burden of proof.
Sufficiency of the Evidence
Second, there were serious problems with the sufficiency of the evidence in this case.
The appellate court was unable to conclude the evidence proved respondent intended to embarrass the judge, since respondent did not communicate this statement directly to the judge or identify the judge by name while in the hallway.
In addition, the bailiff’s testimony established respondent did not use profanity when referring to the judge as “she.” Instead, respondent complained the respondent was tired of waiting all “f*** morning.”
The appellate court also thought there seems to be an element of truthfulness to respondent’s declaration and verbalized frustration. These remarks about the additional delay resulting from the recess may constitute protected speech under the first amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 272-73 (1964) (“[This Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision.”).
Further, she did not disobey any direct or indirect orders of the court and in fact simmered down when the bailiff asked her too. So no court officer was disobeyed.
After considering the multiple ways a respondent may commit indirect criminal contempt, the court conclude the State’s evidence did not establish respondent was guilty of indirect criminal contempt beyond a reasonable doubt.
This conviction was reversed outright, leaving the judge no opportunity to refile against Respondent.