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Defense win! CoA rejects circuit court’s contempt of contempt statute

Julie C. Valadez v. Hon. Michael J. Aprahamian, 2021AP994, 2021AP1186, and 2021AP1436; 2/2/22, District 2 (1-judge opinions, ineligible for publication); case activity for 2021AP994, 2021AP1186, and 2021 AP1436 (including briefs)

In a child custody battle, the circuit court found Valadez, pro se, in contempt of court for: (1) sending it ex parte emails after being told not to, (2) repeatedly objecting and asking questions during a hearing, (3) failing to sign a release giving the GAL access to her confidential DHHS records; and (4) failing to stipulate to the release of additional, confidential DHHS records. The court of appeals, rejecting the judge’s claim that he wields inherent contempt powers beyond Chapter 785, reversed 3 of his 4 contempt findings.

The court of appeals issued one decision addressing the first 3 contempt findings and a second decision addressing the 4th contempt finding. The facts are rather involved but you don’t need to get into the weeds to understand the reasons for the court of appeals’ decisions.

Chapter 785 governs contempt of court.  Section 785.03(1) sets out the procedures for “nonsummary” contempt proceedings. This procedure requires someone other than the court itself to charge a person with contempt of court and request a remedial or punitive sanction. It also requires the court to hold a separate hearing on the matter.

Section 785.03(2) provides a “summary” contempt procedure that a court may use to address misconduct occurring in the courtroom while proceedings are taking place.

Contrary to the judge’s claim, circuit courts do not have inherent authority to hold someone in contempt beyond what is provided in Chapter 785. The court of appeals explained:

¶22 Although the Respondent is correct that courts have inherent authority deriving from the Wisconsin Constitution, see State v. Schwind, 2019 WI 48, ¶¶12-14, 386 Wis. 2d 526, 926 N.W.2d 742, “[f]or over one hundred twenty years … the Wisconsin Supreme Court has recognized legislative regulation of the contempt power, and the court has proscribed the exercise of this power outside of the statutory scheme,” Evans v. Luebke, 2003 WI App 207, ¶17, 267 Wis. 2d 596, 671 N.W.2d 304. (Emphasis supplied; additional citations omitted).

Valadez sent an ex parte email to the judge which prompted an order prohibiting her from doing so again and a warning that further contacts would subject her to a finding of contempt.  She later emailed the judge a question about a court reporter. The next time she was in court, the judge held her in contempt and sentenced her to 5 days in jail. He stayed the sentence for 30 days to allow her to pay $250 or perform 15 hours of community service.

The court of appeals held that sending a judge ex parte emails is not conduct disrupting courtroom proceedings.  Therefore, the “nonsummary” contempt procedure applied, and the circuit court violated it. Nobody (other than the judge sua sponte) charged Valadez with contempt of court, and the court did not hold a separate hearing on the matter. The court of appeals thus reversed this contempt finding. Opinion, ¶¶21-24.

Using the same reasoning, the court of appeals reversed the third and fourth contempt findings, which concerned Valadez’s refusal to release her DHHS records.  The court should have followed the “nonsummary” contempt procedure, but didn’t.  Opinion, ¶¶ 31-35; Opinion, ¶31.

As for Valadez’s repeated objections during a court hearing, you may read a 5-page excerpt from the transcript here. Some might view the exchange between Valadez and the court as a pro se litigant trying simultaneously to understand what was happening and to defend herself.  That’s not how the judge interpreted it. He saw her interruptions as interfering with his ability to conduct a proceeding. Thus, the court of appeals held that it was appropriate for him to invoke summary contempt proceedings to address her conduct.

To impose summary contempt, 4 requirements must be met: (1) The contumacious act must have been committed in the actual presence of the court; (2) the sanction must be imposed for the purpose of preserving order in court; (3) the sanction must be imposed for the purpose of protecting the authority and dignity of the court; and (4) the sanction must be imposed immediately after the contempt. Oliveto v. Circuit Ct. for Crawford Cnty., 194 Wis. 2d 418, 429-30, 533 N.W.2d 819 (1995) (citation omitted).

The court of appeals held that, with respect to Valadez’s interruptions in court, all four requirements were met. It therefore upheld the circuit court’s second contempt finding. Opinion, ¶29. 

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