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Contempt Civil versus
Criminal with Many Citations
Special Focus on New York By Citations Are
Federal Court Level
* 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).
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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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 jail
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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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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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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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 a secret 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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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).
|