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Summary Contempt, §§ 785.01(1)(a), 785.04(2)(b); Conduct Prompted by the Court

Cesar Deleon v. Circuit Court for Brown County, 2012AP278, District 3, 10/10/12

court of appeals decision (1-judge, ineligible for publication); case activity

Summary Contempt, §§ 785.01(1)(a), 785.04(2)(b) – “Unit” of Sanctionable Conduct 

Separate, consecutive punishments meted out for each of 11 profane utterances and 1 act of spitting during brief exchange with judge upheld, against argument they “amounted only to a single act of contempt because they took place during a short period of time.” Foreign authority telescoping multiple sanctions into single punishment, rejected, United States v. Murphy, 326 F.3d 501, 504 (4th Cir. 2003); Williams v. State, 599 So. 2d 255, 256 (Fla. Dist. Ct. App. 1992).

¶13      Moreover, any perceived ambiguity in Wis. Stat. § 785.01(1)(a) is resolved by Wis. Stat. § 785.04(2)(b)’s provision that a circuit court may impose punitive sanctions for “each separate contempt of court.”[4]  Section 785.04(2)(b) applies only when a court, as the court did here, uses summary procedure to sanction an individual for a contempt committed in the court’s presence.  See Wis. Stat. § 785.04(2)(b); see also Wis. Stat. § 785.03(2).[5]  If an individual, through his or her “misconduct,” could only commit one contemptuous act before receiving immediate sanctions, § 785.04(2)(b)’s provision allowing a court to summarily impose sanctions for “each separate contempt of court” would be rendered superfluous.  See Tammy W-G. v. Jacob T., 2011 WI 30, ¶113, 333 Wis. 2d 273, 797 N.W.2d 854 (when construing statutes, courts avoid constructions that would render any portion of the statute superfluous).

¶14      Further, although Deleon cites cases from other jurisdictions in support of his assertion that his repeated acts constituted only a single act of contempt, we observe that still other jurisdictions have concluded multiple disrespectful acts during a single proceeding constitute multiple acts of contempt.  See Smith v. Maryland, 855 A.2d 339, 343 (Md. 2004) (court may find individual in contempt multiple times in single proceeding); Jackson v. Bailey, 605 A.2d 1350, 1356-57 (Conn. 1992) (three statements in approximate thirty second time frame properly treated as three separate instances of contempt). 

¶15      We find these cases more persuasive than the ones cited by Deleon.  To conclude otherwise would allow a litigant to show disrespect to the court multiple times during the same hearing, even when there has been a pause between those acts.  In this case, each of Deleon’s contemptuous acts was separated by a question or comment from the court.  As a result, the court properly determined his actions amounted to distinct contemptuous acts.

Of note: the court deems that the rule of lenity “applies only to criminal statutes and the contempt statutes are civil in nature,” ¶12, citing State v. Cole, 2003 WI 59, ¶13, 262 Wis. 2d 167, 663 N.W.2d 700 for the former principle and State v. Carpenter, 179 Wis. 2d 838, 840, 508 N.W.2d 69 (Ct. App. 1993) for the latter. Carpenter indeed holds “that contempt of court is not a crime,” id. But that doesn’t mean, pace the court here, that contempt is “civil in nature.” Nor does Cole so hold. It is self-evident that a contempt sanction resulting in incarceration – a year, in this very instance – is punitive. And as pointed out by In Interest of DLD, 327 NW 2d 682, 110 Wis. 2d 168, 179 (1983), “Traditionally, a punitive sanction was imposed for criminal contempt and a remedial sanction for civil contempt. The distinction between the purposes of the contempt is retained in the current statute without the criminal and civil contempt designations.” Briefly put, if there’s a compelling reason why the rule of lenity oughtn’t apply to punishment of a year or more in prison, it isn’t advanced by this decision. Murphy, authority favorable to Deleon and rejected by the court, rests on the rule of lenity, so this principle of construction very much matters to the result.

Contempt – Conduct Prompted by the Court

¶19      We conclude the circuit court did not provoke Deleon’s outrageous behavior.  Deleon made two contemptuous statements before the court found him in contempt and made the third contemptuous statement before the court said anything more.  Although the court, during moments of its dialogue with Deleon, used the words “good” and “keep it up” while it found Deleon in contempt, the court, unlike the one in Johnson, did not verbally spar with Deleon to the point where it appeared the court invited Deleon’s behavior.  Instead, the court attempted to shift focus by inquiring about the status of trial.  Deleon’s trial counsel advised the court that he presumed trial was still happening.  Then, as the court attempted to explain to Deleon his right of allocution, Deleon interrupted with more contemptuous statements.  Deleon made another contemptuous statement after his attorney spoke in mitigation of his behavior and after the court stated it would take Deleon’s circumstances into consideration.  When the court asked Deleon if he wanted to consider the district attorney’s plea offer, Deleon responded with yet another profane statement.  Finally, Deleon’s act of spitting at the court cannot be construed as being invited behavior by the court.

¶20      Although the court could have handled the situation differently, such as by inviting Deleon’s counsel to talk to Deleon or by taking a recess, the court is not responsible for Deleon’s conduct.  Deleon is an adult, seemed savvy about court procedures, and was represented by an attorney.  He cannot blame the court for his abominable behavior.

You be the judge: read the exchange, ¶¶5-6, and decide for yourself whether the judge bore some responsibility for exacerbating Deleon’s abominable behavior. That said, Deleon’s act of spitting toward the judge should, as the court indicates, be singled out from Deleon’s stream of invective. Indeed, as the judge said at the time, “Spitting, it’s unbelievable,” ¶6. But this leads to a separate concern: the interaction had become so inflamed that the judge arguably couldn’t have meted out fair punishment, and instead should have recused herself from determining the appropriate sanction. Taylor v. Hayes, 418 U.S. 488, 501(1974) (where contemptuous conduct that personally attacks a judge so as to embroil her in a personal controversy with the defendant, judge shouldn’t preside over contempt proceeding); also see, Mayberry v. Pennsylvania, 400 U. S. 455, 463 (1971). Granted, summary contempt is exempt from the rule that “a criminal contemnor is entitled to, inter alia, an unbiased judge,” Schroeder v. Schroeder 100 Wis. 2d 625, 638, 302 N.W.2d 475, 482 (1981), so recusal may not have been required. But, especially considering that the judge was seemingly imposing a sort of swear-jar punishment calculus – unsuccessfully at that, with an apparent overcount, ¶25 -, discretion might well have been the better part of valor. Perhaps, that is, delegation of punishment to another judge after tempers had cooled might have been a wiser course.

Comtempt – Consecutive Sanction

Punitive contempt sanction may be ordered consecutive to a sentence.

¶22      “‘A court’s power to use contempt stems from the inherent authority of the court.’”  Frisch v. Henrichs, 2007 WI 102, ¶32, 304 Wis. 2d 1, 736 N.W.2d 85 (quoting Griffin v. Reeve, 141 Wis. 2d 699, 706 n.4, 416 N.W.2d 612 (1987)).  The legislature may, within limitations, regulate this power and “when the procedures and penalties of contempt are prescribed by statute, the statute controls.” Douglas Cnty. v. Edwards, 137 Wis. 2d 65, 88, 403 N.W.2d 438 (1987) (citing State ex rel. Lanning v. Lonsdale, 48 Wis. 348, 367, 4 N.W. 390 (1880)).

¶23      We agree with Deleon that Wis. Stat. ch. 785 says nothing about whether contempt sanctions may be served concurrently or consecutively.  However, because the legislature has not prescribed how contempt sanctions may be served, the court’s inherent power in this area allows it to impose sanctions as it deems appropriate.  Here, the court determined it was appropriate for Deleon to serve his contempt sanction consecutively to his prison sentence.

¶24      Deleon, nevertheless, argues that because a court’s contempt power is used to ensure the dignity of the courtroom, “it means little to impose a punishment for that contempt decades down the road.”  If Deleon believes someone with a long prison sentence should be able to escape the consequences of his or her contemptuous conduct, Deleon can make that policy argument to the legislature. Absent a change in the statute, we conclude a circuit court has the discretion to order punitive contempt sanctions to be served either concurrently or consecutively to an existing sentence

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