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.

This discusses how costs, fees, and interest affect the question of whether an appeal from arbitration is 23% successful.

AMI sued Abdeen; the case went to compulsory arbitration. The arbitrator gave AMI an award plus costs and fees but denied prejudgment interest. Abdeen appealed; after a bench trial the court awarded AMI slightly less principal, denied costs and fees, but added prejudgment interest. AMI then moved for fees and costs under Rule 77(f), arguing that Abdeen hadn’t beaten the arbitration award by 23%. The trial court denied the motion, ruling that the fee award doesn’t count toward the comparison. AMI appealed.

(We simplify somewhat. The trial court got mixed up about which party had appealed, didn’t say whether it had taken prejudgment interest into account, and thought it had jurisdiction to rule on a substantive motion after the Notice of Appeal. And the final judgment didn’t add the numbers up correctly, which nobody but the Court of Appeals noticed. This all makes the opinion a bit tedious and confusing, which could largely have been avoided by better drafting but wasn’t much, what else is new.)

So, do the attorney’s fees count? A case called Vega (199 Ariz.) had said that everything counts, which is what the rule clearly means (“at least twenty-three percent (23%) than the monetary relief . . . granted by the arbitration award”). Vega meant that costs count. This case holds that the same analysis means (1) that fees count and (2) that prejudgment interest counts, too.

The case also holds (3) that post-judgment interest on the arbitration award does not count.

(link to opinion)

A case about the “criminal acts” exclusion.

Wilshire’s insured went to prison for sexually assaulting S.A. in his basement. She sued him for false imprisonment. Wilshire denied coverage because its policy, while covering false imprisonment, excluded criminal acts. Wilshire filed this action for declaratory judgment that it had no coverage. Wilshire won; S.A. appealed.

The policy said that it applied to injury caused by an “offense.” S.A. argued that that meant a crime and since the policy explicitly covered false imprisonment the criminal-act exclusion couldn’t deny coverage for the crime of false imprisonment.

But Arizona Supreme Court precedent requires that contracts be construed against “indemnifying a person against loss resulting from his own willful wrongdoing.”  That construction does not render illusory coverage for the false imprisonment or other intentional acts. Intentional acts that unintentionally result in “wrongful conduct” remain covered (e.g., the security guard who detains a customer without proper cause or for too long).

S.A. argued that the precedent preceded the Arizona Victims’ Bill of Rights. The court agreed that that established a public policy to compensate victims but said that it can’t change the precedent “even where the crimes are as horrific” as in this case; that’s up to the Supreme Court. It would perhaps have been better to point out that the Bill of Rights doesn’t talk about insurance, that the insured and victim ends of things are governed by different – and to some extent opposite – principles, and that allowing people to buy insurance against committing crimes – especially “horrific” ones – is  a rotten idea. But its easier to pass the buck to the Supreme Court, especially if you want it to change the precedent.

Is that what this court wanted? Maybe not, since it ruled on only one of Wilshire’s two arguments, which means that if the Supreme Court reverses it will probably kick the case back to let the Court of Appeals rule on the other one. On the other hand, maybe the court wanted that, too.