Ky. Supreme Court Clarifies Law Re: Contempt of Court

Riley v. Gibson (Ky., 2011)

Riley v. Gibson (Ky., 2011) – Dated: May 19, 2012 Dated: June 9, 2011- 2010-SC-000619-MR.pdf

There is continuing confusion about the process and parameters of an action for contempt. Unfortunately, many courts exercise this inherent power to protect the sanctity of the courts without regard for the type of contempt alleged and the type of penalty to be given to one held in contempt. A contempt is “willful disobedience toward, or open disrespect for, rules or orders of court.” Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1996) . A contempt occurring in the presence of the court is direct contempt, while a contempt committed outside the presence of the court is indirect contempt. Id. at 808. A contempt may be civil, which requires performance of a court order, or criminal, which allows punishment rather than obedience. Id. The latter requires a hearing and presentation of evidence, and must comport with due process, including the right to counsel and public access. Commonwealth v. Pace, 15 S.W.3d 393 (Ky. App. 2000); In re Oliver, 33,3 U.S. 257 (1948). If a court intends to punish a defendant for contempt with a serious fine for a single contempt, or confinement in excess of six months, there must be a trial by jury. Codispoti v.Pennsylvania, 418 U. S. 506 (1974) . Jurors may be punished for criminal contempt for disobeying the orders of the court. KRS 432.230.

Clearly, the trial court here was trying to balance respectful treatment of a juror with a possibility that she may have to punish a juror for misconduct. During a juror’s term of service, the trial court has the additional duty of jury management, ensuring that jurors are available and present for trial, that they are properly instructed on their conduct, and following up on indications that they might have violated that conduct requirement. In doing this, the trial court has any number of communications with some or all of the jury venire outside the confines of any specific trial.

From the scant record before us, it appears that the trial court may have been prepared to issue a contempt ruling and punishment if her further inquiries convinced her that the accused juror had committed the contempt. However, the “hearing” was not an appropriate contempt hearing, lacking the requisite due process. The juror was not represented by counsel; the juror was not allowed to cross-examine his accusers, and there was no public access. By questioning the jurors in her chambers, the trial court recognized the importance of protecting jury deliberations, even after trial, and referenced the fact that she had no wish to cause a “chilling effect” on future jurors. What she was really doing was examining jurors about their respect for the importance of the court’s orders, and whether one juror in particular had disobeyed her orders. Thus, despite the judge’s apparent willingness to hold the juror in contempt, this hearing could be viewed more as a preliminary investigation as part of the court’s power to manage the jury, rather than a true contempt hearing. From such a preliminary inquiry, the trial court could have decided to hold a full contempt hearing by issuing a rule or show cause order, followed by a public hearing at which the accused was represented by counsel, had the right to testify, present witnesses, and question all witnesses, and which was tried to a jury if more than six month’s confinement or a serious fine was an option.

Nonetheless, as far as the media was concerned, this hearing was labeled a criminal contempt proceeding, and as such, the media was entitled to be present, as was the public at large. If the court had intended simple jury management, practice would have allowed an initial inquiry to the jurors, which would not have required placement on a docket or making a record. Such a limited inquiry should be kept separate from an actual, formal contempt proceeding. Although conducted improperly, due to the time spent on the issue and the desire to make a record, we conclude that the trial court intended a contempt hearing in this instance.

Because the public’s interest in a criminal contempt proceeding is essentially the same as its interest in any criminal trial, criminal contempt proceedings must be open to the public, including the media. Although it is arguable here that after the first hearing the court was more interested in making a record to support her trial ruling denying a mistrial, the second proceeding, labeled a contempt hearing, must be taken at face value and regarded as such for purposes of public access. It is not sufficient to hold the hearing first, and then determine what it is. The media and the public have the right to rely on what the docket says in pursuing their right to access.
III. Conclusion
For the aforementioned reasons, the Court of Appeals’ denial of a writ of mandamus or prohibition on grounds of mootness is reversed. An exception to the mootness doctrine allows the media to pursue a writ when a case is capable of repetition but evades review. Additionally, The Courier-Journal and Mr. Riley are entitled to a writ stating that criminal contempt hearings are to be afforded public access. Public access is not required, however, for the court’s jury management functions, which are to be kept separate from contempt proceedings.

Minton, C.J.; Abramson, Cunningham, and Venters, JJ., concur. Schroder, J., concurs in result only by separate opinion in which Scott, J., joins.

SCHRODER, J., CONCURRING IN RESULT ONLY: The majority struggles too much to uphold the right of access in this case. In my view, the case is a simple one. The right of the public and press to attend criminal trials is implicit in the guarantees of the First Amendment. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). The proceeding at issue was to consider punishing a juror for disobeying the trial court’s admonition in a prior trial. This is a criminal contempt trial. It is subject to the press and public’s right of access. Id. Case closed.
Scott, J., joins.

Leave a Comment: