Stoddard v. Donahoe (CA1 4/6/10)

An interesting but troubling opinion on the contempt power.

During a sentencing hearing, Stoddard, a detention officer, took papers out of defense counsel’s file while she was standing at the bench. She demanded them back and the hearing stopped. The judge held a hearing on Stoddard’s acts and found him in indirect civil contempt, ordering him to purge it by apologizing sincerely to counsel at a news conference in front of the courthouse.

Rather than do that, Stoddard went to jail and filed this this special action. He challenged the penalty, not the finding of contempt. He argued that his contempt was criminal, not civil, and that the court violated his due-process and First-Amendment rights.

Civil and criminal are controlled by statue and there is also a rule on criminal contempt. A civil contempt is a violation of a court order as well as the in-the-courtroom, “obstruct-the-administration-of-justice” type of thing. The latter is “direct” contempt, the former “indirect.” The court can act on direct contempt immediately; indirect needs a hearing.  Statutory criminal contempt is, basically, a criminal act that violates a court order.  Criminal contempt under Criminal Rule 33 is contempt that isn’t itself a crime. A criminal contemnor is entitled to trial. Sanctions for criminal contempt are to punish; civil sanctions are to enforce the court’s order – the contemnor can avoid jail by obeying it.

(Lacking that handy primer, this court got confused and found a direct contempt “indirect,” as the opinion footnotes.) 

Stoddard claimed that his contempt was criminal because the trial judge’s minute entry apparently made it sound like a contumacious sort of thing – which word Rule 33 uses – and because it happened during a criminal hearing. But the sanction was civil in nature – Stoddard could get out of jail by making the apology – so it was civil contempt.

(Well, actually, it was civil contempt after the judge modified his order. At first he ordered Stoddard jailed unless he made an apology that counsel was satisfied with. In other words, he wasn’t in jail until he agreed to do something, or until his sentence was up, but until counsel decided that he’d done enough to go free. That’s called enslavement, not contempt, which apparently occurred to somebody because the judge changed the order, dropping the counsel-satisfaction part.)

Stoddard’s due-process argument was based on the court’s refusal to let him use as evidence  the papers he took from counsel’s file. They were privileged letters. But the trial judge reviewed them in camera and Stoddard admitted that when he took them out and read them they did not indicate a security threat or future crime, which is what he said he had been worried about.

Stoddard claimed that forcing him to make an apology violates the First Amendment. The Court of Appeals avoided the constitutional issue by finding the apology an abuse of discretion. A civil contempt sanction “must be designed to coerce the person to do or to refrain from doing some act.” Apologizing after the fact didn’t do that. The judge should have ordered Stoddard to get additional training in courtroom decorum, or to explain to the judge that he knew he goofed and how he would do it better the next time, or some such thing.

Why is this troubling? Because contempt is not rocket science. It should be part of a trial judge’s basic fund of knowledge, not something hazily-remembered that he messes up when the time comes. Indirect for direct? An apology on the courthouse steps? This particular judge read up on contempt a couple of years ago – and got it wrong then, too. But presumably he’s not alone. We thought those COJET things talked about contempt once in a while. Its time for another session.