Evans, Paul V.

English

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The Power to Punish Summarily for “Direct” Contempt of Court: An Unnecessary Exception to Due Process

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THE POWER TO PUNISH SUMMARILY FOR "DIRECT"CONTEMPT OF COURT: AN UNNECESSARYEXCEPTION TO DUE PROCESSCONTEMPT OF COURT is uniformly classified either as "indirect" or"direct,"' and it is well recognized that a judge can punish the latterwithout a formal hearing. This summary2 power to punish a "direct"contempt is obviously offensive to the traditional values of a fair trial5a"A contempt is an act of willful disobedience, "calculated to embarrass, hinder, orobstruct the court in the administration of justice." Ex parte Holbrook, 133 Me. 276,280, 177 Ad. 418, 420 (1935). Contempts are generally classified as criminal orcivil. The former are subclassified as direct or indirect. Generally, criminal contemptis committed against the majesty of the court, while a civil contempt is the failure toexecute some order of the court issued in a civil suit, and is prosecuted by the opposingparty. A direct contempt is one committed cin the-presence of the court," in contrastto an indirect contempt which is committed "out of the presence of the court." In thecase of an indirect contempt, however, an order to show cause must issue, and a separatehearing must be held. See Comments, 33 YALE LJ. 536 (1924); 2i HARV. L. REV.x61 (i9o8). See also Fox, THE HIsTORY OF CONTEMPT OF COURT (1927) (whereinthe author suggests that there was no historical right to a jury trial for contempts in theface of the court; notwithstanding evidence to the contrary compiled by an early writer-Mr. Solly-Flood).The power to punish summarily for contempt has been repeatedly criticized. Offuttv. United States, 348 U.S. 11 (i954); Cooke v. United States, 267 U.S. 517 (1925) ;Sacher v. United States, 343 U.S. 1, 22 (1952) (dissenting opinion); Comments, 2STAN. L. REV. 763 (1950) ; 31 COLUM. L. REV. 956 (i93i) ; 37 HARV. L. REV. 1oio(1924). Mr. Justice Black, dissenting in Sacher v. United States, supra at 22, said,"The historic power of summary contempt grew out of the need for judicial enforce-ment of order and decorum in the courtroom and to compel obedience to court orders.I believe the idea of judges having unrestricted power to by-pass the Bill of Rightsin relation to criminal trials and punishments is an illegitimate offspring of this coer-cive contempt power. It has been said that a 'summary process of the Star Chamberslipped into the common law courts,' and that the alleged ancient history to support itsexistence is fiction "'"Summary" has been held to refer to the method by which punishment is imposed,thus allowing a judge to sentence at the end of the trial, without notice and hearing.Sacher v. United States, 343 U.S. 1 (1952) ; criticized 37 CORNELL L.Q. 795 (1952),66 HARV. L. REV. 170 (1952), 36 MINN. L. REv. 965 (1952). Previously, it hadbeen understood to mean the time and method in which punishment was imposed, re-quiring an imposition immediately upon the occurrence of the contemptuous act. Cookev. United States, 267 U.S. 517 (1925). Perhaps the Supreme Court returned to therationale of the Cooke case in Offutt v'. United States, 348 U.S. 11 (i954). See note19 infra.'Powell v. Alabama, 287 U.S. 45, 68 (1932): "It has never been doubted by thiscourt, or any other so far as we know, that notice and hearing are preliminary stepsessential to the passing of an enforceable judgment, and that they, together with a legallyDUKE BAR JOURNAL [Vol. 5: 155but, on the other hand, it is said to be essential to the preservation ofthose very values which it offends.4 For, since fairness in the adminis-tration of justice can be guaranteed only to the extent that a court canmaintain order, dignity, and impartiality in its proceedings, the summarycontempt power is defended as a measure necessary for preserving thisproper decorum.5In seeking to confine the exercise of this power within the limits ofits rationale, the courts have settled upon the phrase "in the presence ofthe court," or some variant thereof,6 to define contemptuous conductcompetent tribunal having jurisdiction of the case, constitute basic elements of the con-stitutional requirements of due process of law"; Tumey v. Ohio, 273 U.S. 510, 522(9z7): "That officers acting in a judicial or quasi-judicial capacity are disqualified bytheir interest in the controversy to be decided is, of course, the general rule"; Rochin v.California, 34z U.S. 165, r69 (1952); Mullane v. Central Hanover Bank and TrustCo., 339 U.S. 306, 310 (1950).'E.g., Cooke v. United States, z67 U.S. 517, 534 (x925): "To preserve order inthe courtroom for the proper conduct of business, the court must act instantly to suppressdisturbance or violence or physical obstruction or disrespect to the court when occurringin open court. There is no need of evidence or assistance of counsel before punishment,because the court has seen the offense. Such summary vindication of the court's dignityand authority is necessary . . . and the punishment imposed is due process of law"; Exparte Robinson, 85 U.S. (i 9 Wall.) 505, 5o (x873) (". .. essential to the preservationof order") ; Anderson v. Dunn, 5 U.S. (6 Wheat.) 61 (8z) : "Courts of justice areuniversally acknowledged to be vested, by their very creation, with power to imposesilence, respect, and decorum"; In re Cooper, 32 Vt. 253, 257 (859) (". . . implied,because it is necessary to the exercise of all other powers") ; In re Oliver, 333 U.S. 257,274 (1948) (dictum): "This Court held [in Ex parte Terry, 128 U.S. 289 (1888)]that under such circumstances a judge has power to punish an offender at once, withoutnotice and hearing, although his conduct may also be punishable as a criminal offense.This Court reached its decision because it believed that a court's business could not beconducted unless it could suppress disturbances within the courtrom by immediate pun-ishment." See also cases cited in note 5 infra.5 Offutt v. United States, 348 U.S. 11 (1954) ; Sacher v. United States, 343 U.S. I(195z); Ex parte Terry, 128 U.S. 289 (888) Ex parte Poulson, 19 Fed. Cas. 12os,No. 11350 (1835); Weldon v. State, i5o Ark. 407, 234 S.W. 466 (1921); Peopleex rel. Field v. Turner, i Cal. r5z (1850) ; State v. Winthrop, 148 Wash. 526, z69Pac. 793 (1928). See also Comment, 37 HARv. L. REV. oxo, 1023 (1924), andcases cited in note 4 supra. As to the congressional power to deal with contempts, seeMarshall v. Gordon, 243 U.S. 571, 541 (1917): "[T]he power rests simply upon theimplication that the right has been given to do that which is essential to the executionof some other and substantive authority expressly conferred. . . . Hence, it rests solelyupon the right of self-preservation to enable the public powers to be exerted. . . . [W] tthink from the very nature of that power that it is clear that it does not embracepunishment for contempt as punishment. . . ."; Anderson v. Dunn, 5 U.S. (6 Wheat.)6r, 69 (18z) ("the least possible power adequate to the end proposed").aNye v. United States, 313 U.S. 33 (194); Ex parte Poulson, 19 Fed. Cas. xzoS,No. 11350 (x835) ("so near the presence of the court as to obstruct the administrationwhich can be termed "ldirect"-and hence summarily punishable. Thisphrase, in addition, recognizes that, in fairness to the accused, only ajudge who could observe the contemptuous nature of the conduct inopen court should be invested with this power.' Having adopted thisshort-hand formula, some courts have, however, ignored the broaderconsiderations to which the phrase was intended to give expression and,by an uncritical application, have rationalized the imposition of summarypunishment in exactly the type of situation which it was designed toexclude.8of justice") i Cooke v. United States, z67 U.s. 517 (19z5) ("in open court") ; Savin,Petitioner, 131 U.S. 267 (x889) 5Ex parte Clark, 2o8 Mo. 12i, io6 S.W. 990 (907)("presence of the court") 5 People ex rel. Field v. Turner, I Cal. 15z (1850) ("in itspresence") i In re Wood, 8z Mich. 75, 45 N.W. 1113 (1890) ("the immediate view andpresence") 5 FED. R. CRIM. P. 42(a) ("actual presence") 4 BLACKSTONE, COMMEN-TARIES 286 (16th ed. 1875) ("face of the court").7 See Cooke v. United States, 267 U.S. 517, 536 (1925): 'Punishment without issueor trial was so contrary to the usual and ordinarily indispensible hearing before judg-ment, constituting due process, that the assumption that the court saw everything thatwent on in open court was required to justify the exception. . . ." In re Wood, 8zMich. 75, 82, 45 N.W. 1113, 1115 (189o): ". . . contempts not committed in (thecourtes) immediate view and presence must be brought before the court by affidavit ofthe persons who witnessed them, or have knowledge of them. . . ." Cf. In re Oliver,333 U.S. 257, 272 (948) (dictum) : "This Court said that knowledge acquired fromthe testimony of others, or even from the confession of the accused, would not justifyconviction without a trial in which there was an opportunity for defense." Savin,Petitioner, I31 U.S. 267, 277 (1889); Nelles, The Summary Power to Punish for Con-tempt, 31 CoLuM. L. REv. 956 (1931 ) ; Frankfurter and Landis, Power of CongressOver Procedure in Criminal Contempts in "Inferior" Federal Courts-A4 Study in Sepa-ration of Powers, 37 HARv. L. REv. ioio (1924).8 Nye v. United States, 313 U.S. 33, 48 (1940) : "The question is whether the words'so near thereto' have a geographical or a causal connotation. Read in their contextand in the light of their ordinary meaning, we conclude that they are to be construedas geographical terms." Savin, Petitioner, 131 U.S. 267, 277 (1889) (attempted briberyin a witness waiting room) : "We are of opinion that, within the meaning of the statute,the court, at least when in session, is present in every part of the place set apart for itsown use, and for the use of its officers, jurors and witnesses; and misbehavior anywherein such place is misbehavior in the presence of the court." In Weldon v. State, 150Ark. 407, z34 S.W. 4.66 (i92), defendant in a pending case attacked the judge at abeach resort. The imposition of summary punishment by that judge for contempt wasaffirmed on the ground that the assault occurred in the "constructive presence" of thecourt. Cf. State -v. Goff, 88 S.E.2d 788 (S.C. 1955), where an assault committed onthe back steps of the courthouse, while the court was in recess and the jury retired toconsider a verdict, was held a direct contempt, since the court was "present" throughoutthe building in which it sat. In United States v. Shipp, 203 U.S. 563 (i9o6) (ondemurrer), 714 U.S. 386 (19o9) (on the merits), a Negro was lynched on the day hisappeal from a rape conviction had been granted by the United States Supreme Court.The Court exercised original jurisdiction to "punish summarily" the sheriff and theleaders of the mob..956] NOTESDUKE BAR JOURNALIllustrative is the recent case of Lyons v. Superior Court,' where thequestion presented was whether petitioner's tardiness, when he was solecounsel for defendant in a felony proceeding, was a "direct" contemptof court, for which he could be sentenced summarily to the county jail.In affirming the trial court's summary punishment, the majority rea-soned that the tardiness was such a participation in the trial as to bewithin the immediate view and presence of the court and that it tendedto obstruct the administration of justice."0Since the court could observe the fact that petitioner was absent,there is no surface difficulty in concluding that the absence occurred "inthe presence of the court."" But, clearly, only inexcusable tardiness iscontemptuous,' 2 and the lack of an excuse would be an element essentialto petitioner's contempt conviction. Inasmuch as the court had no first-hand knowledge as to whether the contempt was excusable, then onlyby a mechanical application of the "formula" could it conclude that thecontempt was "direct" and summarily punishable. Furthermore, it isevident that the obstruction to the administration of justice, which hadalready occurred, could hardly be redressed by imposing summarypunishment; nor could the dignity of the court be vindicated any betterin a summary than in a plenary proceeding.This latter observation raises the broader question as to whetherthere actually are any situations in which the summary contempt poweris necessary to accomplish the ends which purportedly justify its use.It is suggested that the reasoning advanced to sustain this power often43 Cal.zd 755, 278 P.zd 681 (x955)."0 Petitioner offered illness as an excuse for his tardiness of thirty-five minutes. Thecourt declined to believe this excuse, noting that petitioner had been habitually tardy.Compare In re McHugh, 152 Mich. 5o5, z16 N.W. 459 (z908), where the court heldthat an attorney's voluntary offer of a defense in a summary proceeding constituted awaiver of his right to a later plenary trial. If the courts are to hold that a contemnor,in offering an explanation or excuse in such cases, waives his right to notice and hearing,attorneys will certaintly be discouraged from offering any defense, even thought it mightbe substantial. Such a practice would seem undesirable, in view of the probability thatmost contempt situations are cleared up by explanation and apology." But see the language of the court in Ex parte Clark, zo8 Mo. 121, 148, io6 S.W.990, 997 (1907) : "It would seem like an exquisite and palpable contradiction of termsto complain in one breath that the petitioner and his acts were absent, and in the nextbreath to say that such absence constituted a presence .... 1"See Ex parte Clark, Id. at 148, io6 S.W. at 997: "The absence of an attorney,•.. from the court room at the precise time due there may be susceptible of many inno-cent explanations .... [N]one of these explanations are within the mere eyesight or ear-shot of any court of ordinary mortal endowments." Muffly v. State, 129 Neb. 334, z61N.W. 56o (1935) 5 Wise v. Commonwealth, 97 Va. 779, 34 S.E. 453 (t899).[Vol. 5: 1551956] NOTESfails to distinguish between punishment which is sufficient to removean obstruction to the administration of justice, or to vindicate the dignityof the court, and punishment which is necessary to accomplish these pur-poses.13 Indeed, if the test of necessity is applied to the various situa-tions in which the power has been invoked, the apparent conclusion isthat it has no justification at all.14 Consider, for example, the dearestcase-a calculated disturbance in the courtroom, intended by its perpe-trator not only to obstruct the proceeding, but to insult the court. In-stead of punishing the offender summarily, the judge could order himarrested immediately and charged with the crime of contempt. Theobstruction to the administration of justice would thereby be removed;and the vindication of the dignity of the court could be postponed to aseparate hearing.At least one commentator has maintained that the summary con-tempt power should continue to be tolerated as a petty power to dealwith petty offenses.15 To this it might be answered that, if the offensesare petty, they should not justify an exception to constitutional pro-cedural rights.10 The only basis for such an exception is not expediency,but necessity; and, absent a necessity, the exception should fail.'7" It is recognized that the summary contempt power exists as an exception to prin-ciples of due process. Myers v. United States, 264 U.S. 95, 1o4-o5 (1924) ; Sacher v.United States, 34.3 U.S. 1, 36 (595z); Blackmer v. United States, 284 U.S. 421, 440(5932). Therefore it would seem that the "necessity" which justifies such a sui generispower must be a strict necessity-not merely an expediency. Marshall v. Gordon, 243U.S. 521, 543 (1917) (reasoning that the power rests "solely" upon "the right ofself-preservation") ; Anderson v. Dunn, 5 U.S. (6 Wheat.) 6x (x821)." See I COMPLETE WORKS OF EDWARD LIVINGSTON ON CRIMINAL JURISPRUDENCE258-267 (1873). Mr. Livingston contends that the "plea of necessity" should belimited to the power to remove obstructions to the courts' orderly processes and does notjustify the existence of summary power to punish for contempt. He points out that inthis one area, a judge holds all three governmental functions--to define, prosecute andpunish such offenses. Since judges are only human, he urges that all contempts shouldbe statutorily defined as criminal offenses and punishable only in accordance with thisdefined law. Degrees of contempt would be recognized and the offender would, there-fore, be dealt with according to the nature of his offense. If an attorney were chargedwith contempt during a trial, the hearing on this charge could be deferred until theend of the trial.Nelles, op. dit. supra note 7.x Comment, 33 YALE L.J. 536 (1924) (if the punishment is inflicted to deter others,then it is purely penal in character, and the alleged contemnor should be afforded theprotections granted a defendant in a criminal trial)."'Marshall v. Gordon, 243 U.S. 521, 541 (1917): "[W]e think from the verynature of that power it is clear that it does not embrace punishment for contempt aspunishment, since it rests only upon the right of self-preservation. ... " See note 13$upra.i6o DUKE BAR JOURNAL [Vol. 5: 15 5Reconsideration by the courts of a power so discordant with dueprocess is always timely, though its existence has long been asserted. Atthe present, there is some indication that reconsideration is taking placeand may eventually lead to the complete abolition of this power.18 Itis submitted that such an abolition would be consistent with the efficientadministration of justice and would better accord with the requirementsof a fair trial.PAUL V. EVANS18 Due process of law requires notice and hearing before an impartial tribunal. Seenote 3 supra. In Offutt v. United States, 348 U.S. 11 (1954), the Court, relying onCooke v. United States, 267 U.s. 517 (1925), held that when a judge becomes per-sonally "embroiled" with an attorney during a trial, fairness requires that the offendedjudge may not impose summary punishment, but instead another judge must hear thecontempt proceeding. The result is to grant the accused a full, plenary hearing, underthe holding of the Cooke case, supra. Having taken this first step, so soon after thedecision in Sacher v. United States, 343 U.S. 1 (x952), see note z supra, the presentCourt may well eventually take the second, completely abolishing summary punishment.

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The Power to Punish Summarily for “Direct” Contempt of Court: An Unnecessary Exception to Due Process

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