JURISPRUDENCE BY NOMENCLATURE

Contempt jurisprudence is jurisprudence by the ambiguous nomenclature of the words “criminal” and “civil.” Much confusion would  be avoided if the words “public” and “private” were used instead of “criminal” and “civil” to distinguish the contempt power used to punish past disobedience with public aspects from contempt power employed to remedy the effects of past disobedience, or to coerce future obedience  affecting only private rights.4

Besides being a hostage to nomenclature, criminal and civil contempt sometimes steal each other’s conceptual clothing. To achieve a desired result, courts will often state that a criminal contempt charge not only punishes but also coerces and that a civil contempt charge not only coerces but also punishes.

5 This is more psychology than it is law. It is a conflation of the concepts of coercion in fact and coercion in law. 6 Jailing a person as a means of civil coercion also punishes.

Incarcerating a person for criminal contempt punishes, but it also coercively deters similar misconduct in the future or encourages proper future conduct.

LIMITS ON CRIMINAL BUT NOT CIVIL CONTEMPT

New York Judiciary Law § 750(A) states that criminal contempt consists of certain specified acts “and no others.” But civil contempt has a cowcatcher, which is § 753(A)(8). In addition to those civil con- tempts specified in § 753’s seven prior subsections, under subsection 8 one may look to the common law, that is, to “any other case where an attachment or any other proceeding to punish for a contempt has been usually adopted and practiced in a court of record.” Note also that a criminal contempt proceeding may be instituted by the sovereign, a party, or the court, sua sponte,7 whereas civil contempts may only be brought by an aggrieved litigant. There is no authority for a court to jump into the shoes of a private litigant.8 4 See generally People ex rel. Negus v. Dwyer, 90 N.Y. 402, 406-07 (1882).
5 Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444-45 (1910).6 Id. 7 N.Y. JUDICIARY § 750 (McKinney 1994).
8 See United States v. Russotti, 746 F.2d 945, 949-50 (2d Cir. 1984).


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A PRACTICE COMMENTARY TO JUDICIARY LAW ARTICLE 19


Lawrence N. Gray, Esq.*

INTRODUCTION

Commencing with its ad hoc status in New York’s colonial period through its first codification in the Revised Statutes of the 1800’s and in the present Judiciary Law Article 19,1 criminal and civil contempt (non-Penal Law) has undergone so many contradictory and anomalous twists and turns—especially over the last forty years—that Judiciary Law Article 19 is really two statutes. One appears as the written statute itself. The other is the written statute as interpreted, qualified, augmented, and in certain respects, rewritten by appellate case law. No one has studied the Article’s pertinent sections and its case law gloss with the goal of making some sense of a veritable hodgepodge—a task akin to making a silk purse out of a sow’s ear. Ergo, this effort.

THE NATURE OF CRIMINAL AND CIVIL CONTEMPT

New York’s Judiciary Law Article 19 codifies and regulates contempt, the inherent judicial power to preserve its existence and its function to adjudicate and order under the rule of law. It is not a conferral of power by the legislative branch. Thus, it has the inherent power to enforce its orders and compel decorum in its presence. Without this power a court is not a court but a black robe giving advice.2 The judiciary’s power to adjudicate, order, and compel decorum under pain of jail or fine is nondelegable3 and has two facets which Judiciary Law §§ 750 and 753 codify. The first is
criminal contempt, which vindicates a court’s authority and public justice generally. The second is civil con

* Lawrence N. Gray, received his B.A. from St. John’s University (1966, Cum laude), J.D. from St. John’s University School of Law (1969).

1 N.Y. JUDICIARY LAW §§ 750 to 781 (Consol. 2003).

2 See generally Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).

3 See Goldberg v. Extraordinary Special Grand Juries, 418 N.Y.S.2d 695, 698 (4th Dep’t 1979);

See also People ex rel. Stearns v. Marr, 84 N.Y.S. 965 (4th Dep’t 1903); Chicago Truck Drivers v. Brotherhood Labor Leasing, 207 F.3d 500, 504-505 (8th Cir. 2000); Church v. Steller, 35 F. Supp. 2d 215, 216-217 (N.D.N.Y. 1999); Stein Industries Inc. v. Jarco Industries Inc., 33 F. Supp. 2d 163, 165-167 (E.D.N.Y. 1999). 61


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62 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 1:61 tempt, which is concerned with the vindication of the rights of private litigants. Primarily, however, the judiciary’s contempt power vindicates judicial authority.

JURISPRUDENCE BY NOMENCLATURE

Contempt jurisprudence is jurisprudence by the ambiguous nomenclature of the words “criminal” and “civil.” Much confusion would be avoided if the words “public” and “private” were used instead of “criminal” and “civil” to distinguish
the contempt power used to punish past disobedience with public aspects from contempt power employed to remedy the effects of past disobedience, or to coerce future obedience affecting only private rights.4

Besides being a hostage to nomenclature, criminal and civil contempt sometimes steal each other’s conceptual clothing. To achieve a desired result, courts will often state that a criminal contempt charge not only punishes but also coerces and that a civil contempt charge not only coerces but also punishes.

5 This is more psychology than it is law. It is a conflation of the concepts of coercion in fact and coercion in law. 6 Jailing a person as a means of civil coercion also punishes.

Incarcerating a person for criminal contempt punishes, but it also coercively deters similar misconduct in the future or
encourages proper future conduct.

LIMITS ON CRIMINAL BUT NOT CIVIL CONTEMPT

New York Judiciary Law § 750(A) states that criminal contempt consists of certain specified acts “and no others.” But civil contempt has a cowcatcher, which is § 753(A)(8). In addition to those civil con- tempts specified in § 753’s seven prior subsections, under subsection 8 one may look to the common law, that is, to “any other case where an attachment or any other proceeding to punish for a contempt has been usually adopted and practiced in a court of record.” Note also that a criminal contempt proceeding may be instituted by the sovereign, a party, or the court, sua sponte,7 whereas civil contempts may only be brought by an aggrieved litigant. There is no authority for a court to jump into the shoes of a private litigant.8 4 See generally People ex rel. Negus v. Dwyer, 90 N.Y. 402, 406-07 (1882).
5 Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 444-45 (1910).6 Id. 7 N.Y. JUDICIARY § 750 (McKinney 1994).
8 See United States v. Russotti, 746 F.2d 945, 949-50 (2d Cir. 1984).

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ARTICLE 19: THE ROUND PEG IN NEW YORK’S CASE LAW

Contempt law is the subject of contradictory and anomalous twists and turns. New York’s Court of Appeals, where the law is tailored to the needs of a momentarily desired result, cannot make up its mind as to what criminal contempt is and is not, and how criminal contempt is to navigate through the court system. The Court of Appeals has held that Judiciary Law civil contempt is “penal in nature” for exclusionary rule purposes.

9 But the Court has also said that Judiciary Law criminal contempt was “civil in nature” with its punishment described as “remedial and coercive”,10 and that although Judiciary Law criminal contempt may be charged in a civil proceeding,it possesses “criminal overtones.” 11 For its part, the United States Supreme Court has declared that Judiciary Law criminal contempts are “crime(s) in the ordinary sense,”12 shoehorning them into the “serious-versus-petty-offense” matrix for jury trial purposes.

The Supreme Court’s declaration that “criminalcon-tempts are crimes in the ordinary sense” is not true and never will be true—any more than the papacy of Galileo’s day could make the sun revolve around the Earth. “Crimes in the ordinary sense” are defined by legislatures. Criminal contempts are no more “crimes in the ordinary sense” than “crimes in the ordinary sense” are criminal contempts. A legislature does not confer inherent contempt powers on the courts by defining contempt as a crime.

Consider the converse. If a legislature had the power to enact and confer inherent contempt powers on the courts, it could repeal them and put the courts out of existence because, again, a court without inherent contempt power is merely advice cloaked in a black robe.

Criminal and civil contempts, as codified in Article19, are sui generis special proceedings brought through the civil side of thecourt. They are governed by New York’s Civil Practice Law and Rules (C.P.L.R.), references to which appear throughout Judiciary Law Article 19.13 Note that Article 19’s predecessor, containing both civil and criminal contempt provisions, is the 1909 Code of Civil Procedure—a historical sign that 9 Inc. Village of Laurel Hollow v. Laverne Originals, Inc., 17 N.Y.2d 900, 901 (1996).

10 Goodman v. State, 340 N.Y.S.2d 393, 395 (1972).

11 People v. Colombo, 323 N.Y.2d 161, 164 (1971), quoting People ex

rel. Valenti v. McCloskey, 160 N.E.2d 647, 651 (emphasis added).

12 United Mine Workers of America v. Bagwell, 512 U.S. 821, 826

(1994); see also Bloom v. Illinois, 391 U.S. 194, 201 (1968).

13 See, e.g., N.Y. JUDICIARY Law §§ 752, 756 (Consol. 2003).


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Judiciary Law criminal contempts were never contemplated to be “crimes in the ordinary sense.”

Criminal contempt has a curious place in the procedures governing New York’s appellate system. For example, a grand jury proceeding is a criminal proceeding.14 However, a motion to quash, fix conditions on, or modify a grand jury subpoena is held to be a civil proceeding brought through the civil side of the court pursuant to C.P.L.R. § 2304. The denial of these motions is appealable to the Court of Appeals as a civil appeal.15 If the witness, after the Court of Appeals rules against him, still refuses to obey the subpoena and is held in criminal contempt under Judiciary Law § 750, the question then becomes whether New York’s Civil Practice Law and Rules or its Criminal Procedure Law governs. The latter, by its own terms, limits appeals to those specified therein.16 It makes no reference to an appeal from a Judiciary Law criminal contempt adjudication arising out of a grand jury proceeding.

Yet the Court of Appeals and Appellate Division review many criminal con-tempts arising out of grand jury and criminal trial proceedings without a word as to the type of appeal that is before them. More than a century ago, but still without positive results, New York’s Court of Appeals asked its legislature to address this matter.17

IMMEDIATE VIEW AND PRESENCE CONTEMPT

Under Judiciary Law § 750(A)(1), a court may punish “disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due its authority.” Such conduct, may alternatively, be punished under Penal Law § 215.50(1) by the local prosecutor.18 The rest is controlled by confusing case law.

In 1888, a federal court ordered a defendant’s wife removed from the courtroom. The defendant assaulted a court officer who was seeking to eject his wife and then bolted out of the courtroom. The court held him in “immediate-view-and-presence” summary contempt and imposed punishment. A few days later, the authorities caught the defendant and immediately incarcerated him. The Supreme Court ruled that 14 Santangelo v. People, 381 N.Y.S.2d 472 (1976).

15 Cunningham v. Nadjari, 383 N.Y.S.2d 590 (1976).

16 People v. Fetcho, 91 N.Y.2d 765, 769 (1998); see also Matter of Abe A, 56 N.Y.2d 288, 293, 452 N.Y.S.2d 6, 8 (1982).

17 See People ex rel. Negus, 90 N.Y. at 406.

18 See generally People ex rel. Sherwin v. Mead, 92 N.Y. 415, 419-420 (1883).


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a court’s jurisdiction to punish for contempt in its “immediate view and presence” attaches at the instant of the contempt and that a court, under circumstances such as these, may immediately adjudicate and impose punishment even though the contemnor is not present to speak on his own behalf prior thereto.19 In a 1949 federal trial of the head of the Communist Party of America and others, the trial court was confronted with pandemonium. First the judge ordered the miscreants jailed. He then filled out “saw-and-heard” certifications setting forth what happened and imposing punishment under Federal Rule of Criminal Procedure 42(b). The Second Circuit affirmed, noting that the purpose of the “immediate-view-and-presence” contempt power is to keep control over the courtroom. It does not matter that seizure and jail may precede the paperwork.20

In 1952, the Supreme Court reviewed a case involving the courtroom contempt of several lawyers who had defended Communists in a Smith Act prosecution. The trial lasted for months. The trial judge did not pronounce the lawyers in contempt until the trial was over. The Supreme Court held that the word, “summary,” as used in reference to the “immediate-view-and-presence” summary contempt power, did not refer to the timing of its imposition. Rather, it referred to a procedure so summary that it dispenses with formal process and a hearing prior to punishment’s imposition. The presiding judge’s eyes and ears determine the facts then and there, subject to a brief opportunity for the contemnee to be heard on his own behalf if circumstances permit.

Reasons permitting instantaneous use of the summary contempt power, said the court, are not reasons compelling its instantaneous exercise. The contrary would encourage a trial judge to act in hot-blooded anger rather than awaiting a cooler second thought. Summary contempt adjudication and punishment should be imposed immediately if delay would prejudice an ongoing trial. Alternatively, it might be deferred if its instantaneous imposition would prejudice an ongoing
trial.21

The course of contempt law began to change when the case of a lawyer named Offutt reached the Supreme Court. Justice Frankfurter, writing for a unanimous court, described an “activist-seeking-combat” judge who became personally embroiled with Offutt. The judge did not adjudicate and punish instantly, but instead waited until after the trial 19 Ex parte Terry, 128 U.S. 289 (1888). 20 See United States v. Hall, 176 F.2d 163 (2d Cir. 1949).
21 See Sacher v. United States, 343 U.S. 1 (1952).

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was over. The court held that where the contempt adjudicated by the judge is entangled with his personal feelings against the offending lawyer—and he or she does not act instantly—a different judge must preside over the post trial contempt proceeding. The court was concerned not only with justice but also the appearance of justice.22

Starting in 1971, courtroom contempt jurisprudence became a hodgepodge of confusing and contradictory Supreme Court decisions. In one case, a defendant named Mayberry “made brazen efforts to denounce, insult, and slander the court.”23 The judge was not an “activist-seeking-combat.” He remained calm and did not adjudicate and punish the defendant until after the trial. In order to bring the case under its Offutt holding, the court engaged in post hoc psychoanalysis of the trial judge. In the Court’s view, a judge, vilified as in this case, necessarily became personally embroiled with the lawyer. But the court was quick to add that a judge could not be driven off a case of contempt simply by a contemnor’s added abuse and hectoring. A vicious attack does not render a presiding judge less qualified to act. In such circumstances, however, if the judge does not adjudicate instantly, another judge would have to preside over the contempt hearing.24

The new rule seemed clear until it was applied to the courtroom antics of a lawyer named Taylor. Nine times during the
trial, the court adjudicated Taylor in criminal contempt of court. But it was only after the trial had concluded that the judge imposed the punishment which, in the aggregate, added up to four years imprisonment. The Supreme Court’s majority affirmed the notion that summary punishment for adjudicated courtroom contempt did not always have to be imposed instantly at trial but, at least in Taylor’s case, more notice and hearing were required before he could be finally adjudicated and punished for contempt. The court also said Taylor would have to be brought before a different judge for this purpose because contemptous courtroom conduct—though short of personal attack—might still personally provoke a trial judge. The court was now concerned with the likelihood of bias or the possible appearance of bias, not simply justice or the appearance thereof.25

22 See Offutt v. United States, 348 U.S. 11 (1954).

23 Mayberry v. Pennsylvania, 400 U.S. 455, 462 (1971).

24 See id.

25 See Taylor v. Hayes, 418 U.S. 488 (1974).

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Remember Mayberry? His lawyer was Mr. Codispotti, who behaved like a wild man during trial. In front of the jury, he called the judge “crazy,” a “Caesar,” and accused the judge of trying to railroad Mayberry. Following the procedure set forth in Taylor’s case, Codispotti’s contempt was sent to a different judge because he had not been held in contempt and punished at the moment of his contemptous behavior. The second judge was presented with the trial transcript. Codispotti offered no defense. He was found guilty of six separate contempts and sentenced to six months imprisonment, to be served consecutively. According to the Supreme Court, the question presented was whether the aggregate punishment of more than six months imprisonment entitled Codispotti to a jury trial. The court held that generally a contemnor whose separate and distinct contempts bring him an aggregate punishment of more than six months is not entitled to a jury trial. A judge does not exhaust his power to adjudicate and punish summarily whenever the punishment imposed for separate contemptous acts during trial exceeds six months. But, the Court added, Codispotti’s contempts were tried seriatim in one proceeding and he was “found guilty” and “sentenced” to a term of imprisonment which exceeded the six months punishment allowable for a petty offense without a jury trial. Therefore, the court reasoned that he was tried for the equivalent of a serious offense and was entitled to a jury trial.

26 The Court’s use of the words “found guilty” and “sentenced” was notable. These are words used in the criminal prosecution of a crime, not judicial contempt. A person is “adjudicated in contempt” and then “punished.” (Also note the Court’s later opinion where it carelessly referred to the specifications in a contempt order to show cause as “counts.”27 An order to show cause is not an indictment. In 1996 the Court had to reinvent what it said regarding Mr. Codispotti to allow multiple federal misdemeanors to be tried in one trial before a judge even though their aggregate punishment might well exceed six months. Otherwise, federal misdemeanants would be entitled to as many jury trials as there were misdemeanors charged.28)

Consequently, the Supreme Court’s“immediate-view-and-presence” summary contempt jurisprudence reduces itself to a syllogism. While cool reflection, if practical under the given circumstances, is pref 26 See Codispotti v. Pennsylvania, 418 U.S. 506 (1974).
27 United States v. Dixon, 509 U.S. 688 (1993).
28 See Lewis v. United States, 518 U.S. 322 (1996).


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erable to heat and haste, cool reflection presupposes delay in holding a contemnor in contempt. Delay, in turn, draws into question whether summary contempt was necessary in the first place. If it was not necessary in the first place, the summary contempt power was never awakened. The syllogism is reversed if heat and haste prevail.

Syllogisms aside, why should a trial court—in the face of contemptous obstructive courtroom behavior—postpone its adjudication and punishment of it? The contempt power’s purpose is to put a stop to such behavior and deter future occurrences of it—at a time when it is meaningful to stop and deter it! Trial jurists must be ready to repress disorders quickly and, if necessary, ruthlessly. If a judge waits until the end of a trial to impose contempt sanctions, an appellate court may be suspicious as to whether the trial judge was vindicating justice or venting his spleen. It is submitted that this appellate suspicion often reveals itself in “due process” incantations contained in opinions reversing contempt citations while simultaneously deploring the lack of decorum prevalent in the nation’s trial courts. This phenomenon is reminiscent of the farmer who swore that he could keep a horse alive by starving it. When he proved his point, the horse died. New York’s Appellate Divisions, First and Second Departments, have also promulgated rules governing the
“immediateview-and-presence” summary contempt power. Each sentence confuses and is confused by those that precede and follow it. The language in these decisions betrays a robotic tracking of the Supreme Court cases outlined above.29

BIAS RECUSAL MOTIONS AND CONTEMPT

The right to be heard subsumes the right to make motions relevant to a legal proceeding, such as a motion brought to secure a litigant’s right to an unbiased tribunal as recognized by the Due Process Clauses of the Fifth and Fourteenth Amendments. Allegations of judicial bias are, by their very nature, insulting. But they are not the fodder of criminal contempt. Asserting in good faith, preferably in respectful language, that a judge is biased is not contempt whether or not the judge is present.30 This is not a license, however, to beat a judge around the ears in open court, under the guise of stating the grounds of one’s recusal mo

29 22 N.Y. C.R.R. §§ 604.2, 701.2.

30 See Holt v. Virginia, 381 U.S. 131 (1965). See also
In re Little,

404 U.S. 553 (1972); Cooke v.
United States, 267 U.S. 517 (1925); In re Rotwein, 51
N.E.2d 669

(1943).

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tion. Such abuse directly obstructs the proceedings and, in particular, undermines the court’s authority over them.31

CONTEMPT AND THE DUTY TO OBEY COURT ORDERS

Unless stayed, an order issued by a court having subject matter and in personam jurisdiction must be obeyed. One may appeal without obtaining a stay, but the order must be obeyed as though no appeal was taken at all. Even clearly wrong orders—or those issued with malevolent motives—fall under the “stay’em-or-obey’em” rule. There is one exception. It is the transparently invalid or “void-on-its-face” order, that is, an order for which the court does not have subject matter jurisdiction or which does not aid in determining whether subject matter jurisdiction exists—or, an order such as “go shoot yourself.” For policy reasons, one who, even in the best of faith, disobeys a seemingly invalid or void order assumes the risk that the appellate courts will ultimately disagree with him. Having called the law wrong, he
will be found guilty of contempt. The alternative would be jurisprudence where each man is the judge of his own cause—colloquially known as the law of the street. It would place a premium on experimentation withdisobedience.

Concerning an interim order issued by a court pending its determination as to whether it has subject matter jurisdiction, policy requires that, pending its decision on this subject, its order must nevertheless be obeyed because the court must be and remain in a position to provide for a determination either way. Thus, one who disobeys an interim order designed to preserve the status quo pending a decision on subject matter jurisdiction is guilty of criminal contempt whether the decision is adverse or favorable to him. He may not, however, be held in civil contempt since an ultimate determination that there is no subject matter jurisdiction means that there is and was nothing to coerce or remedy.32

SUBPOENAS AS COURT MANDATES FOR CONTEMPT PURPOSES

Judicial subpoenas, which include grand jury subpoenas issued by prosecutors in good faith, are mandates of the court. It is highly improbable that there is any lawyer in the United States who does not

31 See, e.g., In re Rotwein 51 N.E.2d at 672; Werlin
v. Golberg, 517

N.Y.S.2d 745 (2d Dep’t
1987); Matter of Mordkovsky, 232 A.D.2d 863, 649
N.Y.S.2d 71 (3d Dep’t

1996).

32 See, e.g., Walker v. City of Birmingham, 388 U.S.
307 (1967);

United States v. United Mine
Workers, 330 U.S. 258 (1947); Ketchum v. Edwards, 47
N.E. 918 (1897);

Matter of Schulz, 654

N.E. 1226 (1895); People ex rel. Day v. Bergen, 53
N.Y. 404 (1873);

People ex rel. Davis v. Sturtevant, 9 N.Y. 263 (1853);
In re Landau,

243 N.Y.S. 732 (2d Dep’t 1930).

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know that a judicial or grand jury subpoena is a court
mandate.33

Subpoenas are self-limited by the terms of the written commands contained within their four corners. All attorneys have the authority to issue judicial subpoenas on behalf of the court. Prosecutors may also issue grand jury subpoenas on behalf of a grand jury.34 In any event, they must be returnable in a designated action or proceeding, and then only on a date that the action or proceeding appears on the court’s calendar or that the grand jury is expected to be in session. Lawyers may not convert court process into a function of their offices. Except as may be authorized by statute or court order, attorneys do not have the legally-enforceable authority to “adjourn” or compromise compliance with the terms of a subpoena as originally issued—not if they want their subpoena to remain, as its Latin parent implies, under penalty (sub poena). Only a court under C.P.L.R. § 2304 may quash, modify, or fix the conditions of a subpoena. When an attorney takes it upon himself to “adjourn” a subpoena’s compliance date, or bargains and negotiates a modus vivendi with opposing counsel as a means of securing compliance, he is taking a calculated risk. If compliance is not forthcoming, the attorney will have no recourse with the courts to enforce the subpoena through contempt proceedings because at the moment the subpoena’s terms are altered without court mandate—or statutory authorization—the “subpoena” is no longer a court mandate. A modus vivendi between counsel is supposed to expedite compliance, saving time and trouble for both sides. If things go sour, it becomes just like any other deal that goes sour. The attorney must serve a new subpoena and go by the numbers. A contempt proceeding predicated on an attorney-modified subpoena will fail because any disobedience was not related to a court mandate, which was the subpoena as originally written and served. Judicial intervention will be waived or co-opted by operation of law. An attorney who compromises the written terms of a subpoena by altering its original written terms renders it an “oral subpoena” which is not a subpoena at all. In a contempt proceeding, the status of a person’s property or liberty cannot depend on a swearing contest between attorneys as to who said what over the telephone when they substituted a modus vivendi for the subpoena as originally written.35

33 N.Y. CRIM. PRO. § 610.10-610.90 (McKinney 1993);
Waste Conversion

v. Rollins Environmental Services, 893 F.2d 605, 613
(3d Cir. 1990)

(Scirica, J., dissenting).

34 Manning v. Valente, 72 N.Y.S.2d 88, aff’d, 77
N.E.2d 3 (1947).

35 N.Y. CRIM. PRO. § 610.10(2); [N.Y. C.P.L.R.] §§
2302, 2305;

Loubriel v. United States, 9
F.2d 807, 809 (2d Cir. 1926); Matter of Kaplan, 168
N.E.2d 660, 662;

203 N.Y.S.2d 836, 840


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CONTEMPT AND THE CLEAR COURT ORDER PREVIOUSLY COMMUNICATED


An imprecise command followed by punishment for lack of strict compliance is a form of tyranny.36 It is akin to a directive from Alice in Wonderland’s Queen of Hearts. The operative language of a court’s order must be clear. Vague goals, aspirations, and warnings that do not find their way into the operative language of a court’s order may not form the predicates of a contempt proceeding. This is not to suggest that a court order must be in any special language or physical form, but there must be an unambiguous command couched in its operative language such that a reasonable person would know that he or she is under judicial compulsion—and know what is being compelled. The clarity of an order is a function not only of its language but also of the audience to whom it is addressed. Is it addressed to an illiterate, an attorney, or someone in between?37 In sum, there is nothing talismanic about the word “order” as long as compulsion may be reasonably inferred.

Communication of an order, like its clarity, is always an issue in a contempt proceeding—even for the first time on appeal. In using the word “communicated,” one is not extolling any particular method of communication for its own sake. Knowledge of the contents of an order—no matter how communicated or obtained—is determinative.38 However, it will not suffice to communicate the mere shell of an order—that is, the mere fact that it has been issued without disclosure of its contents.39 For civil contempt only, knowledge of an order’s terms may be imputed to the head of a governmental agency.40 As to an intermediary who obtains knowledge of the content of an order, he has several choices. One choice is silence. Another is to apprise the party commanded of the order and its terms. The final choice
is to counsel
(1960); Spector v. Allen, N.E.2d 360, 364-65 (1939);
People v.

McIntoch, 606 N.Y.S.2d 248 (2d
Dep’t 1994); Maritime Fish Products, Inc v. World Wide
Fish Products,

Inc, 474 N.Y.S.2d 281, 287
(1st Dep’t 1984); Application of Mullen, 31 N.Y.S. 2d
710, 715 (1941).

36 See Pasadena Bd. of Educ. v. Spangler, 427 U.S.
424, 438-39 (1976).

See also Raley v. Ohio,
360 U.S. 423, 438 (1959); United States v. Int’l Bhd.
of Teamsters,

Chauffeurs, Warehousemen and
Helpers of Am., AFL-CIO, 899 F.2d 143, 146 (2d Cir.
1990).

37 See In re Levine, 27 F.3d 594, 596 (D.C. Cir.
1994). See also

United States v. Revie, 834 F.2d
1198, 1201 (5th Cir. 1987).

38 See McCormick v. Axelrod, 453 N.E.2d 508, 513
(1983). See also

People ex rel. Davis, 9 N.Y. at

278.
39 See People v. McCowan, 629 N.Y.S.2d 163 (1995).
40 McCormick, 453 N.E.2d at 513.

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obedience, for one who counsels disobedience is
committing a contempt.

Incitement and execution are touched with equal
guilt.41

Lastly, a court order—unlike a subpoena or summons—need not be hand-delivered. It need only be communicated. One can use a bullhorn. An attorney who anticipates that a person to be served with a subpoena will engage in a game of hare and hounds might have a court “so-order” the subpoena. This will enable the process server to yell its contents through a door or use the telephone because knowledge, not physical service, of the contents of a court’s order is determinative. One who closes his eyes and ears to the terms of a court order is chargeable with the knowledge he would have obtained had he not closed his eyes and ears because deliberate ignorance equals knowledge.42

ABILITY TO COMPLY WITH A COURT MANDATE AND CONTEMPT

A bona fide lack of ability to comply with a court’s order is a complete defense to contempt of any stripe.43 This defense does not include a self-inflicted inability to comply. For instance, when documents are subpoenaed or ordered to be produced they are, at that moment, deemed to be in custodia legis such that if the person subpoenaed or ordered to produce the documents destroys them, he has committed criminal contempt then and there. Like any other
infraction of law, it only remains for a petitioner or prosecutor to prove it.44 But this same malefactor may not be held in civil coercive contempt because production of destroyed documents cannot be coerced.45 Still, there may be a host of other adverse consequences for the malefactor, such as dismissal of a claim or defense, or monetary indemnification.

Ability to comply is a function of an order’s clarity, as well as conditions and circumstances beyond one’s control at the time of an order’s

41 See People ex rel. Drake v. Andrews, 90 N.E. 347
(1909).

42 See Gallun v. Hibernia Bank & Trust Co., 195 N.W.
703, 704-705

(Wis. 1923). See also
Matter of Barbara, 180 N.Y.S.2d 924, 928-929 (1958);
United States v.

Joly, 493 F.2d 672, 675 (2d
Cir. 1974); People v. Sugarman, 215 N.Y.S. 56, 63 (1st
Dep’t 1926).

43 Hicks v. Feiock, 485 U.S. 624, 638 n.9 (1988);
People Who Care v.

Rockford Bd. of Educ.,
111 F.3d 528, 533 (7th Cir. 1997) (Posner, J.);
Montesano v. North

Fork Bank, 722 N.Y.S.2d 767
(2d Dep’t 2001); Foley v. Foley, 422 N.Y.S.2d 465 (2d
Dep’t 1979);

Matter of Wegman’s Sons, 57

N.Y.S. 987, 989 (1st Dep’t 1899).
44 See United States v. Bryan, 339 U.S. 323, 330-31
(1950); Jurney v.

McCracken, 294 U.S. 125,
147-149 (1935); United States v. Asay, 614 F.2d 655,
660 (9th Cir.

1980); People ex rel. Day v.
Bergen, 53 N.Y. 404, 410-11 (1873).

45 See generally McNeil v. Dir. Patuxent Inst., 407
U.S. 245, 251

(1972); Schoenberg v. Shapolsky Publishers, Inc., 971
F.2d 926, 935

(2d Cir.1992).


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issuance—and also at the time for compliance with it. Compliance is always impossible if the order’s command is incomprehensible, and it is a practical impossibility when it is ambiguous. The burden of proof on the issue of inability to comply rests with the accused contemnor. He or she must show that—under all the surrounding circumstances—all good faith efforts were made to comply. Substantial efforts do not equal all good faith efforts. A standard less than all good faith efforts would dilute an order’s command, and condemn the law to a fool’s errand of subjectively distinguishing, on a case-by-case basis, the substantial from the insubstantial. Such an enterprise would encourage experimentation with disobedience and gamesmanship with results as unpredictable as the weather. Any legal standard—like “substantial”—that is of uncertain application and results in widely varying applications is as good as no standard at all. Since coercion is its primary function, civil contempt may not be used where obedience is not reasonably perceived to be within the ability of the contemnor. It entails a factual impossibility defense.46

CRIMINAL CONTEMPT’S COLLATERAL BAR RULE

One of the most important doctrines of contempt law is the collateral bar rule. When a court with subject matter and in
personam jurisdiction issues an order, one may not disobey it and then for the first time attack it in a criminal contempt proceeding subsequently instituted to punish disobedience of it. On appeal from a criminal contempt adjudication, one is also not permitted to collaterally attack the underlying order which was disobeyed. Subjective good faith that an order is predicated upon a mistake of law or fact does not constitute a defense to contempt of any type. Citizens—particularly lawyers—are not permitted to “test case” the law by disobeying an order, and then claim to be a “Roe plaintiff” in pursuit of a higher cause. One may obtain reversal of an order but such reversal will not constitute a post facto defense to a criminal contempt of it.

The collateral bar rule does not apply to civil contempt. If a judgment is overturned, a civil contempt auxiliary to it evaporates because there is—and was—nothing to coerce or remedy. An important illustration of the difference between criminal and civil contempt for collat 46 See generally Comb’s v. Ryan’s Coal Co., 785 F.2d 970, 984 (11th

Cir. 1986); Piambino v.
Bestline Prod., Inc., 645 F. Supp. 1210, 1213 (S.D.
Fla. 1986); Powers

v. Powers, 653 N.E.2d 1154,
1157 (1995).


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eral bar rule purposes is what happens to a person who has been held in both types of contempt after appellate reversal of a judgment in an action underlying the same disobeyed order. The civil contempt is voided because there is nothing to coerce or remedy. The criminal contempt will stand because there may still be plenty left to punish.47

There are qualifications to the collateral bar rule. It assumes that there are adequate and orderly review procedures in
place before or after an order’s issuance that are sufficient to safeguard the contemnor’s rights and privileges. A court’s order may not require the irretrievable surrender of constitutional rights, such as compelling testimony or the production of documents which are privileged under the Fifth Amendment without a grant of immunity, or the irretrievable surrender of privileged information, such as that which is the product of confidential communications between attorney and client or physician and patient.

One which does so may be attacked for the first time on appeal from a criminal contempt citation. If the order is upheld, the criminal contempt will stand; if not, it will be reversed. Orders implicating First and Fourth Amendment rights stand on different footing. They do not require the person to do anything requiring his own affirmative conduct to be part of the process of the court’s order, such as testifying or turning over documents. Orders involving First and Fourth Amendment rights, in contrast to Fifth Amendment rights, do not require the compelled party to irretrievably let his own cat out of the bag.48

THIRD PARTY ADVICE AND CONTEMPT

Each person bears an individual responsibility for compliance with a court order. Thus, reliance on the advice of others
is not a defense to contempt, because an attorney can always be found who advises that it is legal to rob banks. Disobedience to a court order is the product of individual rational choice, no matter how premised or motivated.

Advice of counsel is simply no defense,49 and neither is religious belief.50

47 See GTE Sylvania, Inc. v. Consumers Union, 445 U.S.
375 (1980). See also Walker v. City of
Birmingham, 388 U.S. 307 (1967); United States v.
United Mine Workers,

330 U.S. 258 (1947);
Howat v. Kansas, 258 U.S. 181 (1922); United States v.
Terry, 17 F.3d

575 (2d Cir. 1994); United
States v. Cutler, 840 F. Supp. 959 (E.D.N.Y. 1994);
Balter v. Regan,

468 N.E.2d 688 (1984).

48 See United States Catholic Conference v. Abortion
Rights

Mobilization, Inc., 487 U.S. 72, 7879 (1988). See also
Maness v.

Myers, 449 U.S. 449, 458-468 (1975); In re Novak, 932
F.2d 1397,
1401-1402 n. 7 (11th Cir. 1991); In re Establishment
Inspection of

Hern Iron Works, Inc., 881 F.2d
722, 726-729 (9th Cir. 1989); United States v.
Dickinson, 465 F.2d

496, 511 (5th Cir. 1972).

49 See Butterly v. Lomenzo, 36 N.Y.2d 250, 256-57; 236
N.E.2d 799, 803

(1975); People v.
D’Amato, 211 N.Y.S.2d 877, 880-81 (1st Dep’t 1961).


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The courts are the courts of Caesar, and a civilized society based upon the rule of law could not survive the “third-party-advice” defense.

Subjective good faith and politeness are irrelevant. Organized crime figures and clergymen sometimes politely disobey a court order to testify. Some assert a defense that they foolishly relied on advice that was just as foolish. The succinct answer to this purported defense—and all of its aliases—is that contempt law is not so complex as to set it apart from the rest of the law to which ignorance is no defense.51

CONTEMPT AND ATTORNEYS

In good faith, an attorney may interpret what he or she understands to be the meaning of a court’s order and advise a client accordingly. The client may properly be held in contempt if the attorney’s advice is wrong. But as long as an attorney does not counsel outright disobedience to a court’s order, he or she may not be held in contempt. The right to counsel includes the right to the advice of counsel.52

For example, if a client is commanded to testify during a trial and will not receive immunity, the lawyer may advise the client that he has a Fifth Amendment privilege against testifying. This advice does not equate with counseling disobedience, although—as noted—the client may be held in contempt and hope for vindication on appeal.53 In contrast, an attorney who does not advise his client of a court order may be held in contempt if his failure to inform the client was both intentional and the cause of the client’s disobedience.54

WILLFULNESS AND CONTEMPT

Wherever the words “willful” and “willfully” appear in Article 19 the words “intentional” and “intentionally” should be substituted because the words “willful” and “willfully” import moral disapprobation and subjectivity into contempt’s mens rea. Contempt is not disobedience with an attitude. Without elucidating justification, the New York Court of Appeals and Appellate Divisions have often stated that the difference between civil and criminal contempt is the level of willfulness

50 See People v. Woodruff, 272 N.Y.S.2d 786, aff’d 288
N.Y.S.2d 1004

(1966). See also In re
Furhre, 419 N.Y.S.2d 426, aff’d on opinion below, 421
N.Y.S.2d 906 (2d

Dep’t 1979).

51 See United States v. Remini, 967 F.2d 754, 757-58
(2d Cir. 1992).

52 See Maness v. Meyers, 419 U.S. 449, 459-68 (1975).
See also In re

Landau, 243 N.Y.S. 732,
735-36 (2d Dep’t 1930).

53 See, e.g., Manes, 419 U.S. at 449.

54 See, e.g., Kanbar v. Quad Cinema Corp., 600
N.Y.S.2d 702, 704 (1st

Dep’t 1993).


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with which the disobedience is carried out.55 This is epistemological nonsense. To some, a willful child is merely a high-spirited child. In the mind’s eye of others, he is something else. The Court of Appeals long ago noted that a “willful disobedience is a criminal contempt while a mere disobedience . . . is treated [as a civil contempt].”56 The contrast between the words “willful” and “mere” in the same sentence serves to underline the fact that “willful” meant “intentional” for purposes of criminal contempt while the word “mere” meant a contempt which was not necessarily performed intentionally, that is, a civil contempt.

REFUSAL TO BE SWORN AS CONTEMPT

For purposes of Judiciary Law § 750(A)(5), the act of refusing to be sworn and testify may take many forms. Walking out of a legal proceeding as the oath is about to be administered is an obvious example. Walking out just after being sworn leads to the same result as does constantly consulting with counsel rather than proceeding.57

LEGAL AND PROPER QUESTIONS, MATERIALITY AND CONTEMPT

For purposes of Judiciary Law § 750(A)(5) regarding punishment for “contumacious and unlawful refusal. . . to answer any legal and proper interrogatory,” a legal question is one that violates no right or privilege of the witness. A proper question is one that is relevant and pertinent and fitting.58 “Legal” and “proper” are, by definition, questions of law for the court to determine. The very use of the words “legal and proper” would render it anomalous to treat them as questions of fact.59 They are not to be confused with “materiality” which is an issue of fact with a de minimis threshold. To determine whether a fact is material, the court might ask whether the testimony refused would have rendered something more or less probable on an issue relevant to a legal proceeding, or, whether it would have possibly and reasonably tended to 55 See McCormick v. Axelrod, 453 N.E.2d at 513. See also 466 N.Y.S.2d

279, 283 (1983).

56 People ex rel. Negus v. Dwyer, 90 N.Y. 402, 406 (1882).

57 See generally United States v. Bryan, 339 U.S. 323, 330 (1950);

United States v. Allen, 73 F.3d 64 (6th Cir. 1995); People ex rel. McDonald v. Keeler, 99 N.Y. 463,

484, 2 N.E. 615, 625-26 (1885).

58 Matter of Barnes, 204 N.E. 108, 125, 97 N.E. 508, 513 (1912)

(Werner, J., concurring).

59 People v. Ianiello, 365 N.Y.S.2d 821, 822, 826-27 (1975).


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affect the credibility of a witness.60 The concepts of “legal and proper” and “material” overlap, but are not legally synonymous.

MENS REA OF TESTIMONIAL CONTEMPT

Judiciary Law § 750(A)(3) relates to willful disobedience of a court’s lawful mandate, such as disobedience to its command to testify. § 750(A)(5) forbids the contumacious and unlawful refusal to answer any legal and proper question. The mens rea of both types of criminal contempt under these subsections is an intentional refusal to answer.

It is the product of rational choice. Nevertheless, court decisions often confuse testimonial contempt’s mens rea with its
effect. They also mistakenly add “willfulness” to its mens rea which has already been captured by the word “intentional.” One also encounters phrases such as “tending to obstruct” which are also not part of testimonial contempt’s mens rea. Obstruction is the effect of a cause, the cause being an intentional refusal to answer. A priest or flower child who refuses to answer for any number of ignoble or benign reasons may not have the slightest desire to be willful or to obstruct inquiry. They simply intentionally refuse to answer.61 Consider the well-coached contemnor who, because of a legal issue pending on appeal, refuses to testify. After the issue which might

have excused his refusal to testify is decided against him on appeal, this type of contemnor’s usual plea is that his reliance on what he thought would be a resolution of the issue favorable to him was in good faith.
Therefore, his argument proceeds, his good faith reliance constituted a lack of intent to refuse to answer. His argument is a “heads I win, tails the law loses” argument. What the contemnor thought the law would be after an appellate decision was his reason for refusing to testify. His intent was simply to refuse to testify.62

Similarly, fear for one’s safety or for the safety of one’s child, not rising to the level of immediate duress, is not a defense to contempt for intentional refusal to testify. It is the motive for intentionally refusing to 60 See United States v. Gaudin, 515 U.S. 506, 518-19 (1995). See also

New Jersey v. T.L.O., 469

U.S. 325, 345 (1985); People v. Davis, 423 N.E.2d 341,
345 (1981).
61 See, e.g., Keenan v. Gigante, 47 N.Y.2d 160, 390
N.E.2d 1151, 417

N.Y.S.2d 226 (1979);
People v. Woodruff, 272 N.Y.S.2d 786, aff’d, 21 N.Y.2d
848, 236 N.E.2d

159, 288 N.Y.S.2d 1004
(1968).
62 People v. Breindel, 342 N.Y.S.2d 428, 431-33,
aff’d, 356 N.Y.S.2d 626 (1974).


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testify.63 A refusal to answer a legal and proper interrogatory also takes the form of a flat refusal to answer or a refusal by evasive answer. A desire to obstruct may or may not lurk behind either form of contempt. This is motive or byproduct, not intent. At a contempt hearing, a contemnor has a right to introduce evidence of his state of mind—such as confusion or nervousness—at the time he allegedly refused to testify.64 This evidence bears on his intent. But it need not be proven that he intended to obstruct a legal proceeding or was “willful” in his intentional refusal to answer.65

CONTEMPT AND ORDERING A GRAND JURY WITNESS TO TESTIFY

As already noted, Judiciary Law §§ 750(A)(3) and 750(A)(5) relate
to disobedience of court mandates generally and to contumacious refusals to testify in a legal proceeding specifically, often including a grand jury. In New York, a grand jury witness, absent a waiver of immunity, automatically receives testimonial and transactional immunity for answers that are responsive to questions asked. Absent a viable claim of some privilege—other than the Fifth Amendment—the witness must testify responsively and truthfully.66 When a grand
jury witness raises a claim of privilege or objection to a question asked, he must be taken before the court for a ruling. The court will either sustain or overrule him. If overruled, the witness is ordered back into the grand jury to answer any questions previously rebuffed. If he still refuses to answer, he may be punished under the above-mentioned subsections of the Judiciary Law. Alternatively, he may also be indicted for Contempt in the First and Second Degrees.67 These are alternative punishments. Under present day double jeopardy jurisprudence from the Supreme Court, Judiciary Law criminal contempt adjudications for refusals to testify and

63 See, e.g., Piemonte v. United States, 367 U.S. 556,
559 n.2 (1961);

Simkin v. United States,
715 F.2d 34 (2d Cir. 1983); People v. Clinton, 346
N.Y.S.2d 345,

346-47 (3d Dep’t 1973); People v.
Gumbs, 478 N.Y.S.2d 513 (1984). See also Gray,
Judiciary And Penal Law

Contempt In New York: A
Critical Analysis, BROOK. J. LAW & POL’Y. 81, 93-96
(1994).

64 See generally People v. Martin, 42 N.Y.2d 882, 883;
366 N.E.2d 881,

397 N.Y.S. 2d 794
(1978); People v. Renaghan, 338 N.Y.S.2d 125, 127-28
(1st Dep’t 1972).

65 See generally People v. Tantleff, 356 N.E.2d 477
(1976).

66 See N.Y. CRIM. PRO. § 190.40(1) (McKinney 1994).
See also Brogan v.

United States, 522

U.S. 398 (1998); People v. McGrath, 46 N.Y.2d 12, 385
N.E.2d 541, 412

N.Y.S.2d 801 (1978);
People v. Tomasello, 21 N.Y.2d 143, 234 N.E.2d 190,
287 N.Y.S.2d

(1967).
67 N.Y. PENAL §§ 215.50(1), 215.51.


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criminal punishments under resulting indictments may
not be

consecutively imposed.68

For contempt purposes, there is a critical distinction between the witness who asserts a privilege or objection in the grand jury only to be overruled and ordered to testify by the supervising trial judge—and is then indicted for his continued refusal to answer—and the witness who flatly refuses to answer or testifies evasively. The former has preserved his objections. The latter has bypassed timely judicial intervention and thus waived any objections he otherwise might have had. Consequently, if a grand jury witness flatly refuses to answer, or refuses by evasive answer without invocation of any privilege, he may be immediately indicted without any prior judicial intervention. The prosecutor, on the other hand, retains the option of bringing the witness before the court for an order commanding him to testify under pain of Judiciary Law criminal contempt. Thirty days in prison and a new grand jury subpoena served on the contemnor on the way out sometimes serve as an inducement to him and others to testify forthrightly.69

CONTEMPT AND ORDERING A CRIMINAL TRIAL
WITNESS TO TESTIFY


A trial witness who asserts his Fifth Amendment privilege may refuse to answer questions until the prosecutor requests the court to confer immunity on him. In New York only the prosecutor’s request renders a trial court competent authority to confer immunity. The next step is for the court to order the witness to answer questions while advising him that upon doing so he will receive testimonial and transactional immunity.70 Without much need for elaboration, the court must advise the witness about what immunity means and what constitutes perjury. The court should also advise him regarding contempt.71 If the witness continues to refuse to answer, he may be held in “immediate-view-andpresence” summary contempt and jailed.72 This procedure does not apply to a civil trial where none of the participants is empowered to confer immunity. As is well known, however, assertion of the Fifth Amend

68 See Gray, supra note 63, 119-122.
69 See Gray, Criminal And Civil Contempt: Some Sense
Of A Hodgepodge

72 ST. JOHN’S L. REV.


337, 384-386 (1998).

70 N.Y. C.P.L.R. § 50.20.

71 See generally People v. Rappaport, 391 N.E.2d 1284,
(1979); People

v. Masiello, 270 N.E.2d
305 (1971).

72 See, e.g., O’Neil v. Kasler, 385 N.Y.S.2d 684 (4th
Dep’t 1976);

Clinton, 346 N.Y.S.2d at 345.


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ment in a civil case has adverse consequences to one’s claim or defense. In all events, assertion of the privilege must be bona fide, and involve a real and substantial danger of self-incrimination. Speculative possibility is not enough. What one’s name is, where one lives, how old a woman is, and whether a man wears a toupee can hardly be incriminating.73

**********************************
CONTEMPT’S BURDENS OF PROOF

Criminal contempt under the Judiciary Law must be proven beyond a reasonable doubt.74 No court has ever really explained why.

Simply saying that criminal contempt may involve jai is close but gets no cigar.75 People have been sent to jail for years for civil contempt which requires reasonable certainty, or possibly clear and convincing evidence.76 Judiciary Law criminal contempt proceedings are simply sui generis special proceedings brought on the civil side of the court.

Note that Article 19 specifically incorporates modalities of the New York Civil Practice Law and Rules.77

THE MANDATE OF COMMITMENT FOR CONTEMPT

The “mandate-of-commitment” requirement for a criminal or civil contempt adjudication under Judiciary Law § 752 and § 755 is stricti juris. Failure to adhere to these statutory requirements vitiates either type of contempt. A mandate for criminal contempt must state the operative facts constituting the contemptuous conduct in an evidentiary fashion and the results of that conduct. By way of illustration, for a criminal contempt committed in the immediate view and presence of the court, the mandate must state the facts constituting the contempt and that as a result of those facts the court’s proceedings were obstructed, or imminently in danger of being obstructed, or that the conduct impaired the court’s authority over the proceedings. It is not enough to write “see stenographic minutes” on the mandate of commit 73 See Gray, supra note 63.

74 See Young v. U.S. ex rel. Vuitton et Fils S.A., 481
U.S. 787, 798

(1987); See also Michaelson v.
United States, 266 U.S. 42, 66 (1924); County of
Rockland v. Civil

Serv. Employees Ass’n, Inc., 464
N.E.2d 121 (1984).

75 See, e.g., People v. Shapolsky, 185 N.Y.S.2d 639,
642 (1st Dep’t

1959).

76 Compare McCormick v. Axelrod, 453 N.E.2d 508, 512
(1983) with

Powers v. Powers, 86
N.Y.2d 63, 68 (1995).

77 See generally Nye v. United States, 313 U.S. 33,
47-48 (1941);

Blackmer v. United States, 284

U.S. 421, 440 (1932); Myers v. United States, 264 U.S.
95, 103 (1924);

Gompers v. Buck’s Stove &
Range Co., 221 U.S. 418 (1911); Bessette v. W.B.
Conkey Co., 194 U.S.

324, 327 (1904); Gabrelian
v. Gabrelian, 489 N.Y.S.2d 914, 918-20 (2d Dep’t
1985).

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ment. Judiciary law is concerned with what the presiding judge saw and heard, not what the stenographer may have seen and heard. After citing the reasoning for the criminal contempt mandate, the presiding judge may attach a mandate of commitment which references the “stenographic minutes attached.” A civil contempt mandate does not require a specification of willfulness but must contain a finding that the contemptuous conduct “defeated, impaired and
prejudiced” the right of a party to an action or special proceeding. (Some New York Appellate Division cases state, ad hoc, that the absence of this finding in a civil mandate is merely an irregularity that may be corrected on appeal. The courts offer no justification for this departure from the clear statutory requirement.
Nor do they explain how a finding of fact necessary to a legal conclusion can be made for the first time on appeal when the court made no such finding.)78 Conclusory assertions in any mandate of commitment, standing alone, are insufficient. However, the Judiciary Law contempt statutes themselves are cast in terms of adjectival conclusions.

Assuming that the evidentiary facts are fully set forth in a mandate, use of the statutory adjectives will not cause those facts to degenerate into mere conclusions. The adjectival and conclusory phrases in the mandate statutes are the results of the facts constituting the contemptuous conduct and they must be stated for a mandate to be sufficient. Otherwise, the mandate will be essentially saying that while there was a foul there was no harm.79

PURGATION OF CRIMINAL CONTEMPT

Contempt indictments may not be purged by doing or refraining from doing that which was commanded or forbidden in
the first place. In 1873, the Court of Appeals held that a Judiciary Law criminal contemnor is not permitted to supplement the record on appeal from his citation with an affidavit saying that as of the time of appellate argument he had obeyed the order previously disobeyed. Purgation was held to be within the discretion of the court contemned.80
The Court of

78 See, e.g., Hasegawa v. Hasegawa, 722 N.Y.S.2d 177
(2d Dep’t 2001).

79 See Waldman v. Churchill, 186 N.E. 690 (1933); See
In re Rotwein 51

N.E.2d 669 (1943);
Douglas v. Adel, 269 N.Y. 144 (1935); People ex rel.
Barnes v. Court

of Special Sessions, 147 N.Y.
290 (1895); Clinton Corner H.D.F.C. v. Lavergne, 719
N.Y.S.2d 77 (1st

Dep’t 2001); Sickmen v.
Goldstein, 398 N.Y.S.2d 583 (2d Dep’t 1977); Paine,
Weber v. Pioneer

Warehouse Corp., 402
N.Y.S.2d 5 (1st Dep’t 1978); Solano v. Martin, 389
N.Y.S.2d 413 (2d

Dep’t 1976); In re Boasberg,
143 N.Y.S.2d 272 (4th Dep’t 1955); Berkon v. Mahoney,
43 N.Y.S.2d 334,

rev’d on other grounds,
49 N.Y.S.2d 551, aff’d, 62 N.E.2d 388 (1945).

80 See People ex rel. Day v. Bergen, 53 N.Y. 404, 411
(1873).


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Appeals clouded this principle in 1978. In dicta, the
court stated

that
probably incorrect was the conclusion that under no
circumstances was
it permissible for a Judiciary Law criminal contempt
to be purged.

This
dictum makes more sense if stated positively: probably
correct is the
conclusion that, under rare circumstances, a Judiciary
Law criminal

contempt may be purged.81

The four Appellate Divisions’ treatment of this dictum falls into two categories. The first is that purgation of a criminal contempt is a stay of execution of punishment sine die by the court contemned which as exclusive control over the matter. The second is that purgation may occur at the Appellate Division where the court goes outside the record on appeal to find that a criminal contempt has been purged.82 Whatever else may be said, this 1978 dictum is haphazardly applied by the Appellate Divisions and tends to contradict a fundamental principle later reconfirmed by the Court of Appeals to the effect that a criminal contempt of court may not be privately settled by the parties—least of all by the unilateral action of a party doing what he was supposed to do ab initio.83

PURGATION OF CIVIL CONTEMPT

Civil contempt of a coercive nature is the classic situation in which the contemnor holds the key to his own jail cell. Coercion subsumes the concept of purgation by compliance. Coercive fines are different. One who is fined unless he does an act by a certain date may purge his contempt provided the date for compliance has not yet passed.84

CONTEMPT BY PUBLICATION

Contempt by media publication is still on the books in all fifty
states. In New York, it is found in Judiciary Law §
750(6) and Penal
Law § 215.50(5). It does not exist in the federal
courts. It was

removed
from the federal courts by statute in 1831 after the
failed impeachment

81 See People v. Leone, 376 N.E.2d 1287, 1288 (1978).

82 See, e.g., Kuriansky v. Ali, 574 N.Y.S.2d 805 (2d
Dep’t 1991);

Additional Jan. 1979 Grand
Jury v. Jane Doe, 444 N.Y.S.2d 201 (3d Dep’t 1981);
Ferrara v. Hynes,

404 N.Y.S.2d 201 (2d Dep’t
1978); People v. Belge, 399 N.Y.S.2d 539 (4th Dep’t
1977); Typothetae

of New York v. Typographical Union No. 6, 122 N.Y.S.
975 (1st Dep’t

1910).

83 See Dep’t of Envtl. Prot. v. Dep’t of Envtl.
Conservation, 513

N.E.2d 706, 709 (1987).

84 See Gompers v. Buck’s Stove & Range Co., 221 U.S.
418, 442 (1910).

See also Penfield Co. v.
S.E.C., 330 U.S. 585, 590 (1947); Matter of Beiny
(Weinberg), 562

N.Y.S.2d 58, 60 (1st Dep’t
1990).


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trial of a federal district court judge who had the habit of holding everybody but his mother in contempt. Contempt by media publication is subject to the “clear and present danger” test, or its linguistic equivalent, the “substantial likelihood of material prejudice” test. Neither formulation requires the actual disruption of a judicial proceeding.

All that is required is a “clear and present danger” of disruption. Here, contempt has a unique constitutional cast—there must be bona fide detailed findings of fact constituting the clear and present danger. The facts found must be “constitutional facts.” Even the Supreme Court will search the record de novo to determine whether the facts surrounding a “publication contempt” actually constituted a “clear and present danger” to judicial proceedings. A trial court will not be sustained if it merely adopts conclusions contained in an order to show cause. Nevertheless, there are a few broad certainties regarding this type of contempt. The Supreme Court has never held that the news media can say or write anything it wants before and during a legal proceeding. Once the proceeding is over, however, the media can publish anything it wants about a case, as can the presiding judge. Many jurists have incurred the wrath of the New York Post’s lead editorial. Most of the cases articulating this rule come from early state court decisions.85

GAG ORDERS AND CONTEMPT

Judiciary Law §§ 750(A)(3), 750(A)(4), and 753(A)(1)
codify a court’s inherent power to punish disobedience or resistance to its lawful mandates. “Gag orders,” under proper circumstances, are included. Lawyers and litigants do not have an unqualified First Amendment right to disseminate information obtained only through court-ordered discovery. Pretrial discovery in civil cases leaves a substantial potential for abuse and blackmail—metaphorically bludgeoning one’s opponent into submission. It is the prevention of these abuses, and others, that constitutes the interest sufficient to justify gag orders restricting speech regardless of the First Amendment. Here restriction promotes a substantial
85 See Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). See also

Mu’ Min v. Virginia, 500 U.S. 415 (1991); Wood v.
Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331
U.S. 367 (1947);
Bridges v. California, 314 U.S. 252 (1941); Nye v.
United States, 313 U.S. 33 (1941); Craig v.
Hecht, 263 U.S. 255 (1923); Patterson v. Colorado, 205
U.S. 454 (1907); In re Jafree, 741 F.2d 133
(7th Cir. 1984); United States v. Cutler, 58 F.3d 825
(2d Cir. 1995); Ex Parte Poulson, 19 F. Cas.
1205 (E.D. Pa. 1835), cited with approval in Nye v.
United States, supra note 85; People v. Post
Standard Co., 13 N.Y.2d 185, 245 N.Y.S.2d 377 (1963);
Lauer v. 1056 Lex Corp., 305 N.Y. 887
(1953); Justices of the Appellate Div., First Dep’t v.
Erdman, 33 N.Y.2d 559 (1973); People ex rel
N.Y. Sup. Ct. v. Albertson, 275 N.Y.S. 361 (4th Dep’t
1934).

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84 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 1:61
governmental interest which is unrelated to the mere suppression of speech. Much information obtained through the court’s discovery process is only tangentially related to the underlying cause of action. Prior restraints placed on the discovery of EBT information—much of which will not be admitted at trial—are not restrictions on traditionally public
sources of information.86 The Supreme Court has observed that during litigation lawyers often have authoritative voices because of their presumptive access to inside information obtained through discovery.

First Amendment rights of free speech are telescoped as the words “pending proceeding” evolve into the words “trial,” or, especially, “voir dire.” The Court has held that civil discovery information is different from other types of information and thus not unqualifiedly protected speech under the First Amendment. A court order granting discovery of information, which would otherwise be unavailable without its order, may simultaneously place confidentiality requirements upon that information. But for the discovery order, the information would not have come into the possession of the litigant wanting to disseminate it in advance of trial. Gag orders, however, do not preclude a litigant from disseminating the identical information if it was obtained independently of the discovery process. A gag order, of course, may be no broader than that which is necessary.

The law uses a different calculus in criminal trials. Freedom of the press and speech is as broad as can be countenanced in an ordered society provided there is no clear and present danger to the integrity of a criminal trial. Criminal trials are not elections to be won through the media or the meeting hall. Freedom of speech and the press is not a license to subvert the law’s process, particularly the requirement that a jury verdict be based solely upon evidence received in open court. The Supreme Court has expressly noted that a trial court has the power to control outside publicity. The Supreme Court has cryptically stated that it has not yet had to consider what sanctions might be available against a recalcitrant press. At the same time, it has held that trial courts have the authority to control the release of information by the police and witnesses, as well as prosecutors and defense counsel.87

86 See Seattle Times v. Rheinhart, 467 U.S. 20 (1984).

87 See Sheppard v. Maxwell, 384 U.S. 333 (1966).


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CONTEMPT AND THE NEWS MEDIA

The news media’s confidential news sources are absolutely privileged under New York’s Civil Rights Law § 79-h(b). A later amendment— § 79-h(g)—affords qualified protection to nonconfidential news sources. In the latter case, a litigant must show that nonconfidential news source materials are highly material, relevant, and critical to his cause or claim, and not obtainable from any other source.

There are problems with the confidential news source statute. Article I, § 4 of the New York State Constitution mandates that the power of the grand jury to inquire into misconduct in public office shall never be impaired by law. Yet a New York Court of Appeals decision states that the confidential news-source shield law—§ 79-h(b)—did not impair the grand jury’s power to inquire into official wrongdoing. In that decision, the Court quashed the grand jury appearance of a news reporter in advance. The reporter’s confidential informant was a prosecutor turned felon who divulged secret grand jury testimony to the reporter.88 Does this law, as construed, violate the separation of powers doctrine to the extent that it prevents courts from enforcing orders necessary to protect the rights of litigants? Does it confer de facto immunity on corrupt prosecutors who commit the felony of Unlawful Grand Jury Disclosure?89

The history of the nonconfidential news source privilege—§ 79h(g)—is also interesting. In a civil case in 1988, the New York Court of Appeals found that a privilege for nonconfidential news sources could be found in Article I, § 8 of the state’s constitution.90 One may be puzzled by this change in New York’s jurisprudence. The language of Article I § 8 has been in the New York Constitution since 1821. In 1936, a unanimous Court of Appeals affirmed the denial of a writ of habeas corpus sought by a jailed news reporter who had refused to divulge his confidential news source to a grand jury. While the Court was not called upon to construe Article I, § 8, it did state that “on reason and authority, it seems clear that this court should not now depart from the general rule, in force in many of the States and in England, and create a privilege in favor of an additional class. If that is to be done, it should be done by the Legislature which has thus far refused to enact such 88 See Beach v. Shanley, 465 N.E.2d 304 (1985). 89 See N.Y. PENAL § 215.70 (McKinney 1999). 90 See O’Neil v. Oakgrove Construction, Inc., 523 N.E.2d 277 (1988).


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86 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 1:61
legislation.”91 Following the Court of Appeals interpretation of the State Constitution in 1988, the New York Legislature
enacted a qualified privilege for nonconfidential news sources and made it applicable to criminal as well as civil litigation. The Second Circuit Court of Appeals has construed New York’s nonconfidential news source shield law to mean that if a litigant has a prima facie case, then that which is highly material and relevant is not critical and necessary to his cause.92

One important factor in a criminal case is the Sixth Amendment to the United States Constitution, which guarantees a defendant the right to call witnesses on his own behalf. Most trial attorneys know that to show that something one has never seen is highly material and relevant and critical, but not available from another source is a practical impossibility. Construing the Constitution’s First Amendment, the Supreme Court has rejected New York’s reasoning by holding that there is no federal privilege for confidential or nonconfidential news sources in federal criminal trials. In civil litigation, there may be a qualified privilege for both confidential news sources and nonconfidential sources.93

There are three concluding points to be made here. First, saying that a nonconfidential news source privilege has a basis in the state’s constitution ignores the Court of Appeals’ own prior pronouncement and the language of the constitutional provision itself. Second, the legislature enacted the nonconfidential-source privilege on the heels of the
Court’s decision in a civil case—which recognized that the different factors present in a criminal case were not present in a civil case.94

Third, it is submitted that this special interest legislation ignores fundamental constitutional principles as well as the law’s right to every person’s evidence.

NOTICE OF CIVIL CONTEMPT PROCEEDINGS

Early on, the Supreme Court decided that the exact form of notice of contempt proceedings is not constitutionally important—as long as there is an opportunity to be heard.95 Judiciary Law § 761 provides that a civil contempt proceeding may be commenced by an order to show cause or by motion. The initiatory process must have the eight-point

91 People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 295
(1936).
92 See Gonzales et al v. Nat’l Broad. Co., 155 F.3d
618 (2d Cir.1998).
93 Id.
94 See O’Neil, 523 N.E.2d at 279.
95 See Cook v. United States, 267 U.S. 517, 536
(1925).

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2003] JUDICIARY LAW ARTICLE 19 heading, pursuant to § 756, warning of arrest and imprisonment. This requirement is waived by a failure to object and participation on the merits.96 The order to show cause or motion must be served on the accused contemnor, or it may be served on the attorney representing him in the underlying civil action if so ordered by the court. Service on the attorney is permissible because the civil contempt application is remedial and coercive—and ancillary to the main action in which the contemnor has not only been personally served with the complaint or petition but also has been heard on the merits leading up to the issuance of the court’s order.

NOTICE OF CRIMINAL CONTEMPT PROCEEDINGS

Criminal contempt is never ancillary to the main action whether that action is civil or criminal. Judiciary Law § 751(1) states that for a criminal contempt occurring outside the court’s immediate view and presence the contemnor must be notified and given a reasonable time to prepare a defense. § 751(1) does not mention motion papers or an order to show cause, which is in very sharp contrast to its civil contempt cousin, § 761. (Federal Rule of Criminal Procedure 42(b) mentions both written vehicles and also states that the contemnor may be given oral notice of the criminal contempt proceeding in open court.) But New York case law has written a hidden amendment to the § 751(1) statute by requiring personal service on the named criminal contemnor of the order to show cause or motion. This personal service requirement has been held to be jurisdictional and non-waivable.97 It is noted that the Revised Statutes, which preceded the Code of Civil Procedure of 1909, by their own language required personal service of criminal contempt papers (§ 12) but exempted service of civil contempt papers from such a strict requirement (§ 14).

SUFFICIENCY OF CONTEMPT ORDER TO SHOW CAUSE

The sufficiency of an order to show cause or a motion bringing a criminal or civil contempt proceeding depends on the facts of each case. It must accord the contemnor adequate notice of his or her alleged vio96 See Matter of Rappaport, 444 N.E.2d 1330 (1982).

97 See Pitt v. Davison, 37 N.Y. 235, 238-39 (1867);
See also Clinton Corner H.D.F.C. v. Angel
Lavergne, 719 N.Y.S.2d 77; In re Grand Jury Subpoena
Duces Tecum, 533 N.Y.S.2d 869 (1st Dep’t
1988); Matter of Minter, 518 N.Y.S.2d 181 (2d Dep’t
1970); People v. Balt, 312 N.Y.S.2d 587 (1st
Dep’t 1970).


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lation. The supporting affidavit must competently aver facts which make out a prima facie case of contempt. However,
defects in the preliminary papers are waived if the contemnor appears and defends on the merits.98

******************************************************
CONTEMPT IS TRIED IN OPEN COURT

Decisions construing Federal and State Constitutions as well as Judiciary Law § 4 require that court proceedings be public proceedings. Statutes guaranteeing a public trial in a criminal or civil case do not confer the right to compel asecret trial. The parties may not agree to a secret contempt proceeding. If they do, the proceeding will be void. There have been instances where a trial court has been erroneously persuaded to conduct a contempt hearing arising out of a grand jury proceeding in secret, based on the theory that grand jury secrecy might be violated.99 In 1948, however, the Supreme Court declared that while grand jury proceedings are secret, the contempts that arise out of them must be tried in open court.100 The same holding applies to contempts arising out of domestic relations proceedings. With
rare exception, secret or closed trials and proceedings are anathema to the law.101

SERIOUS AND PETTY CONTEMPTS

A serious non-penal law criminal contempt, for jury trial purposes, is one that is punished by more than six months in
jail.102 It is not one potentially punishable by more than six months in jail.103

Judiciary Law § 751(2)(a), in part, provides that “where an employee organization, as defined in . . . the civil service law, wilfully disobeys a lawful mandate of a court of record, or wilfully offers resistance to such lawful mandate, in a case involving or growing out of a strike in violation of . . . the civil service law, the punishment for each day that such
contempt persists may be by a fine fixed in the discretion of the court.” In 1968, a jury trial requirement was a constitutional function of only the amount of jail time imposed as punishment—six months plus—not the amount of 98 See Gray, supra note 69.

99 See In re Rosahn, 671 F.2d 690, 696 (2d Cir. 1982).

100 See In re Oliver, 333 U.S. 257 (1948).
101 See, e.g., People v. Jones, 391 N.E.2d 1335
(1979). 102 See Bloom v. Illinois, 391 U.S. 194
(1968).
103 Codispotti v. Pennsylvania, 418 U.S. 506 (1974)
discussed in Lewis v. United States, 116 S.Ct.
2163, 2165-66 (1996).


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JUDICIARY LAW ARTICLE 19
any fine imposed.104 The law changed in 1994. The United States Supreme Court held that there was a constitutional dividing line for jury trial purposes between a petty and a serious criminal contempt fine.
Today, a serious non-penal law criminal contempt fine ranges from $10,000 to $52,000,000.105 Courts apply principles of ratio and proportionality to determine what constitutes a serious contempt fine for jury trial purposes.106 A $10,000 fine for a man with a family and a mortgage may be draconian, while a $1,000,000 fine for a multi-national corporation may be picnic beer money. Courts invite a putative contemnor to submit a copy of his income tax return, a landlord his rent roll, or a corporation its corporate tax filing. Based on this evidence and the contempt hearing, the court will theoretically be in a position to make an educated “guesstimate” as to what constitutes a petty or serious
fine for jury trial purposes. This is the only area of the law where the right to a jury trial is determined nunc pro tunc
based on the jail time or fine imposed, not the length of incarceration or fine could have been potentially imposed at the inception of the proceeding.

CORPORATIONS AND CONTEMPT

Corporations are creatures of the sovereign. They are born without Fifth Amendment rights.107 They have Fourth Amendment rights played out in subpoena litigation on questions such as relevancy, overbreadth, burdensomeness, and the jurisdiction of the issuing authority.108 A custodian of corporate records may not assert a Fifth Amendment privilege against producing those records.109 Corporations obey subpoenas through their agents having knowledge of the law’s process directed to the corporation and its officers. And it is to agents, and agents alone, that the law looks for compliance with its process directed at the corporation.110 Corporate agents are representatives acting on behalf of the corporation. They disobey in an individual capacity and may be held in contempt, with their disobedience imputed to the corpora 104 See Goodman v. State of New York, 292 N.E.2d 665 (1972). See also

Rankin v. Shanker, 242 N.E.2d 802 (1968).
105 See United Mine Workers of America v. Bagwell, 512
U.S. 821 (1994).
106 See Dep’t of Housing Preservation v. Deka Realty
Corp., 620 N.Y.S.2d 837 (2d Dep’t 1995).
107 See Wilson v. United States, 221 U.S. 361 (1911);
See Grand Jury

Subpoenas Duces Tecum

(X&Y) v. Kuriansky, 505 N.E.2d 925 (1987).
108 See Oklahoma Press Publ’g Co. v. Walling, 327 U.S.
186 (1946).
109 See Braswell v. United States, 487 U.S. 99 (1988).

110 See Nelson v. United States, 201 U.S. 92, 115-16
(1906).


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90 CARDOZO PUB. LAW, POLICY & ETHICS J. [Vol. 1:61
tion which will also be held in contempt.111 However,
a corporation’s contempt is never imputed to its
innocent agents.112

CONCLUSION

It is long past time for New York to enact a new Judiciary Law Article 19. The present statute is of Thomas Jefferson’s vintage in terms of its penalties for criminal contempt. The remodeling should discard historical anachronism and that which constitutional interpretation has overlooked. A worthy, but not exclusive, place to start would be the enactment of a state counterpart to the federal recalcitrant witness statute, encoded at 28 U.S.C. § 1826.

111 See Braswell, 487 U.S. at 99. See also United States v. White, 322 U.S. 694 (1944); compare Nelson, 201 U.S. at 92 with Wilson v. United States, 221 U.S. 361 (1911); Cont’l Mortgage Guarantee Co. v. Whitecourt Constr. Co., 297 N.Y.S. 338, 339-40 (1937).

112 See United States v. Rylander, 460 U.S. 752,
758-761 (1983). See

also Ross v. Thousand Island
Park Ass’n, 196 N.Y.S. 811, 813 (4th Dep’t 1922); see
generally People v. Byrne, 570 N.E.2d 1066
(1991).