§710-1077 - Criminal contempt of court.
§710-1077 Criminal contempt of court.
(1) A person commits the offense of criminal contempt of court if:
(a) The person recklessly engages in disorderly or
contemptuous behavior, committed during the sitting of a court in its immediate
view and presence, and directly tending to interrupt its proceedings or impair
the respect due to its authority;
(b) The person creates a breach of peace or a
disturbance with intent to interrupt a court's proceedings;
(c) As an attorney, clerk, or other officer of the
court, the person knowingly fails to perform or violates a duty of the person's
office, or knowingly disobeys a lawful directive or order of a court;
(d) The person knowingly publishes a false report of
a court's proceedings;
(e) Knowing that the person is not authorized to
practice law, the person represents the person's self to be an attorney and
acts as such in a court proceeding;
(f) The person intentionally records or attempts to
record the deliberation of a jury;
(g) The person knowingly disobeys or resists the
process, injunction, or other mandate of a court;
(h) The person intentionally refuses to be qualified
as a witness in any court or, after being qualified, to answer any proper
interrogatory without a privilege to refuse to answer;
(i) Being a juror, the person intentionally, without
permission of the court, fails to attend a trial or official proceeding to
which the person has been summoned or at which the person has been chosen to
serve; or
(j) The person is in violation or disobedience of any
injunction or order expressly provided for in part V of chapter 712.
(2) Except as provided in subsections (3) and
(7), criminal contempt of court is a misdemeanor.
(3) The court may treat the commission of an
offense under subsection (1) as a petty misdemeanor, in which case:
(a) If the offense was committed in the immediate
view and presence of the court, or under such circumstances that the court has
knowledge of all of the facts constituting the offense, the court may order
summary conviction and disposition; and
(b) If the offense was not committed in the immediate
view and presence of the court, nor under such circumstances that the court has
knowledge of all of the facts constituting the offense, the court shall order
the defendant to appear before it to answer a charge of criminal contempt of
court; the trial, if any, upon the charge shall be by the court without a jury;
and proof of guilt beyond a reasonable doubt shall be required for conviction.
(4) When the contempt under subsection (1)
also constitutes another offense, the contemnor may be charged with and
convicted of the other offense notwithstanding the fact that the contemnor has
been charged with or convicted of the contempt.
(5) Whenever any person is convicted of
criminal contempt of court or sentenced therefor, the particular circumstances
of the offense shall be fully set forth in the judgment and in the order or
warrant of commitment. In any proceeding for review of the judgment, sentence,
or commitment, no presumption of law shall be made in support of the
jurisdiction to render the judgment, pronounce the sentence, or order the
commitment. A judgment, sentence, or commitment under subsection (3)(a) shall
not be subject to review by appeal, but shall be subject to review in an
appropriate proceeding for an extraordinary writ or in a special proceeding for
review.
All other judgments, sentences, or commitments
for criminal contempt of court shall be subject to review by appeal, in a
proceeding for an appropriate extraordinary writ, or in a special proceeding
for review.
(6) Nothing in this section shall be construed
to alter the court's power to punish civil contempt. When the contempt
consists of the refusal to perform an act which the contemnor has the power to
perform, the contemnor may be imprisoned until the contemnor has performed it.
In such a case the act shall be specified in the warrant of commitment. In any
proceeding for review of the judgment or commitment, no presumption of law
shall be made in support of the jurisdiction to render the judgment or order
the commitment. When a court of competent
jurisdiction issues an order compelling a parent to furnish support, including
child support, medical support, or other remedial care, for the parent's child,
it shall constitute prima facie evidence of a civil contempt of court upon
proof that:
(1) The order was made, filed, and served on the
parent or proof that the parent was present in court at the time the order was
pronounced; and
(2) The parent did not comply with the order.
An order of civil contempt of court based on prima
facie evidence under this subsection shall clearly state that the failure to
comply with the order of civil contempt of court may subject the parent to a
penalty that may include imprisonment or, if imprisonment is immediately
ordered, the conditions that must be met for release from imprisonment. A
party may also prove civil contempt of court by means other than prima facie
evidence under this subsection.
(7) Any violation or disobedience of any
injunction or order expressly provided for in part V of chapter 712 is
punishable by:
(a) A fine of not less than $400 nor more than
$5,000, or
(b) By imprisonment for not less than one nor more
than six months, or
(c) Both (a) and (b). [L 1972, c 9, pt of §1; am L
1973, c 136, §8(a); am L 1979, c 181, §3; am L 1987, c 176, §3; am L 1988, c
141, §60; gen ch 1993; am L 2008, c 157, §3]
COMMENTARY ON §710-1077
Contempt of court is, perhaps, one of the least understood
areas of the law. Perkins has said "a large part of it is clearly outside
the area of criminal law and much of the rest hardly more than
'quasi-criminal.'"[1] The contempt proceeding has been called "'an
anomaly,' a mixture of the attributes of the criminal process and those of the
equity proceeding."[2]
Not the least source of confusion is the various
classifications of contempt depending on (1) the type of penalty imposed (civil
or criminal), and (2) the proximity of behavior penalized to the judicial
proceeding with which it interferes (direct or constructive).
Civil contempt is disobedience to a court order; it is
punished by a penalty which is coercive and corrective in nature; the penalty
can be avoided by compliance with the court order. For example, for refusal of
a witness to answer a proper question, the court may order the witness
imprisoned until the witness answers. Criminal contempt is conduct which
brings the court into disrespect or which interferes with the administration of
justice. The penalty for criminal contempt is a sentence or order which the
defendant cannot avoid. Insulting behavior toward the court or an assault on a
bailiff would constitute two modes of criminal contempt, for which a court
might impose a sentence of imprisonment for a certain period of time. Certain
contempt may be both civil and criminal if both types of dispositions are
appropriate. Refusal to answer a proper question may be penalized as both
criminal and civil contempt; the court may, e.g., order the contemnor to be imprisoned
for one day and to be imprisoned thereafter until the contemnor answers the
question.
It is often said that a direct contempt is one which takes
place in the presence of the court or so near the court as to interfere with
judicial proceedings. An indirect or constructive contempt is contempt
committed at a distance from the court or proceedings but which degrades the
court or interferes with its proceedings. Although couched in substantive
terms, the consequences of the distinction are largely procedural. If the
contempt is direct, the court may impose punishment summarily, whereas if the
contempt is constructive, due process requires that the court issue an order to
show cause and hold a hearing thereon before punishment is imposed. This being
the case, a more rational "determinant insofar as procedure is concerned
is whether or not the contempt was committed under such circumstances that the
judge has knowledge of all the facts and hence has no need to hear
evidence."[3]
Although often challenged, the United States Supreme Court
had held, until recently, mostly on historical grounds,[4] that contempt
proceedings were not intended by the framers of the Constitution to be within
the constitutional guarantees of trial by jury,[5] and that "it has always
been the law of the land, both state and federal, that the courts--except where
specifically precluded by statute--have the power to proceed summarily in
contempt matters."[6]
In a recent series of opinions, the Court has redefined the
nature of contempt and its relation to constitutional procedural guarantees.
In United States v. Barnett (1964),[7] Cheff v. Schnackenburg (1966),[8] Bloom
v. Illinois (1968),[9] and Dyke v. Taylor Implement Mfg. Co. (1968)[10] the
Court has gradually, and in increments, adopted the position that: (1) the
Constitution's criminal jury trial provisions apply to serious offenses and not
to petty offenses;[11] (2) criminal contempt "is a crime in every
fundamental respect" and, for purposes of the constitutional guarantees to
trial by jury in criminal cases, it will be treated the same as other criminal
offenses;[12] and (3) where the criminal contempt constitutes a serious
offense, the Constitution guarantees the right to trial by jury, where the
criminal contempt constitutes a petty offense, it does not.[13]
The Court has distinguished the severity of the penalty
authorized or imposed from the seriousness of the offense committed.[14]
However, this appears to be a distinction without a difference, because a
majority of the Court appear to accept as the best, if not the only, evidence
of the seriousness of the offense the penalty authorized or imposed.[15]
Although "the exact location of the line between petty offenses and
serious crimes" is not settled,[16] a majority of the Court appear to
accept the position that where the maximum term of imprisonment may not exceed
six months a jury trial is not guaranteed by the Federal Constitution in
criminal contempt cases.[17]
Justices Black and Douglas have taken the position that a
defendant charged with criminal contempt is entitled, under the Federal
Constitution, to a trial by jury.[18] Whether this position results from their
characterization of criminal contempt as a serious crime, or from the belief
that any imprisonment is a severe penalty which cannot be imposed without trial
by jury, is not clear.[19]
The procedural right to trial by jury in cases of criminal
contempt, where "severe" punishment is authorized and the offense
therefore regarded as "serious," which the Supreme Court has imposed
on the states as a matter of constitutional law, has long been recognized by
statute in Hawaii.[20] Previous Hawaii law limited the punishment which may be
imposed if the Court proceeded summarily without a jury.[21]
Section 710-1077 attempts to preserve as much of the
framework of the previous chapter on contempts[22] as is possible, and at the
same time, to clarify and, in some instances, expand the statutory law.
Subsection (1) spells out more clearly than the previous code
the types of conduct regarded as contumacious. Subsections (1)(a), (1)(b),
(1)(g), and (1)(h) are clarifications of former law. Each subsection states
specifically the mental culpability required for conviction. Contempt in open
court under subsection (1)(a) may be committed recklessly; however, under
subsection (1)(b) [breach of the peace], (1)(g) [disobedience or resistance to
process, injunction, or mandate], and (1)(h) [refusal to be qualified as a
witness or answer proper interrogatory] the actor must act intentionally.
Subsection (1)(d) limits contempt by publication to one who
"knowingly publishes a false report of a court's proceedings." The
Code eliminates language contained in the previous codification which could be
interpreted to penalize as contemptuous constitutionally protected
publications.[23]
Subsections (1)(c) [violation of duty or order by officer of
court], (1)(e) [unauthorized practice before a court], (1)(f) [recording
deliberation of a jury], and (1)(i) [failure of juror to attend trial or
official proceeding] are additions to statutory law. Although similar types of
behavior have been held to constitute criminal contempt under case law
development,[24] the Code proposes codification of conduct regarded as contempt
of court. The policy against common-law crimes also weighs heavily against the
unrestrained common-law development of loose statutory standards.
Subsection (2) makes the offense a misdemeanor; a slight
reduction in the two years' imprisonment previously authorized.[25] As in the
case of all misdemeanors the offense is triable as a criminal offense, i.e., by
a jury unless jury trial is waived.
Subsection (3) preserves the court's power to dispose of
criminal contempts without a jury trial; however, in such cases, the offense
must be treated as a petty misdemeanor. The Code makes no distinction, as does
the prior law,[26] in the summary punishment which may be imposed by State
Supreme, Circuit, and District Courts. The Code's lowest grade of criminal
offense, petty misdemeanor, seems easily within the Supreme Court's concept of
"petty offense." Disposition of an offense under subsection (3)
would not, therefore, violate the defendant's constitutional right to trial by
jury. Moreover, the division of subsection (3) into two parts provides due
process in another respect. Subsection (3)(b) assures that where the contempt
is not direct, i.e., not in the immediate view and presence of the court, nor
under such circumstances that the court has knowledge of all the facts
constituting the offense, the defendant must be charged, and, if tried, proved
guilty beyond a reasonable doubt.
A majority of the United States Supreme Court has rejected,
repeatedly, the position taken by Black and Douglas, JJ., in their dissents in
Barnett, Cheff, and Dyke, that a jury trial is guaranteed by the Federal
Constitution in all criminal contempt cases. We have considered implementing
by statute this policy in favor of jury trials. However, it seems to us that,
on the balance, the value in permitting the court to proceed without a jury, in
cases where the offense is treated as a petty misdemeanor, outweighs the value
of enlarging the defendant's right to jury trial. A contrary decision would
force the court, in some instances, to be a witness in its own behalf--a status
it would be ill-suited and loath to assume.
Subsection (4) provides that contempts which constitute both
contempt and another offense do not relieve the defendant of liability for the
other offense merely because its commission was contemptuous of the court. For
example, if a person were to cause disorder in a courtroom, during the course
of proceedings, by assaulting another person, the person would be guilty of
contempt. The person would also be guilty of an assault. The fact that the
court imposed summary punishment for the contempt, or the fact that the person
was put in jeopardy for the misdemeanor offense of criminal contempt of court,
would not allow the defendant to plead double jeopardy to a charge of assault
based on the same conduct. Any danger presented by the possibility of
multiplicity of convictions is obviated somewhat by the limitation in Chapter
706 against ordering that sentences be served consecutively.
Subsection (5) is a concise restatement of former law,[27]
with the exception that it eliminates the restriction against district courts
trying cases of constructive contempt.
Subsection (6) explicitly preserves the court's power to deal
with cases of civil contempt and is otherwise a restatement of prior law.[28]
SUPPLEMENTAL COMMENTARY ON §710-1077
Act 136, Session Laws 1973, amended subsection (5) by
amending the last sentence of the first paragraph and by adding the second
paragraph. Prior to amendment, the last sentence of the first paragraph read:
"A conviction under subsection (3)(a) shall not be subject to review by
direct appeal."
Act 181, Session Laws 1979, amended subsection (1) and added
subsection (7) as part of an effort to provide a remedy to abate as nuisances,
certain offenses against public health and morals.
Act 157, Session Laws 2008, amended subsection (6) to provide
that when a court of competent jurisdiction issues an order compelling a parent
to furnish the parent's child with support, proof that the order was made,
filed, and served on the parent or that the parent was present in court at the
time the order was pronounced, and that the parent did not comply with the
order, shall constitute prima facie evidence of a civil contempt of court. Act
157 clarified that if an order of civil contempt based on prima facie evidence
imposes immediate imprisonment, the order shall set forth the conditions that
must be met for release from imprisonment. The Act also clarified that civil
contempt of court may be established by means other than by prima facie
evidence. Act 157 facilitated the proof of civil contempt of court in
proceedings involving enforcement of a court order compelling a parent to pay
child support, medical support, or other remedial care for the parent's child.
Conference Committee Report No. 21-08, Senate Standing Committee Report No.
873.
Law Journals and Reviews
Contemporary Contempt: The State of the Law in Hawaii. I
HBJ No. 13, at pg. 59.
An Evaluation of the Summary Contempt Power of the Court:
Balancing the Attorney's Role as an Advocate and the Court's Need for Order.
19 UH L. Rev. 145.
Case Notes
Court's summary contempt power discussed. 365 F. Supp. 941.
Whether attorney's conduct in court amounted to contempt. 55
H. 430, 521 P.2d 668.
Violation of order enjoining unauthorized practice of law as
criminal contempt. 55 H. 458, 522 P.2d 460.
Defendant's failure to appear for trial as directed was
direct contempt of court under subsection (3)(a) and was not subject to review
by appeal. State v. Taylor, 56 H. 203, 532 P.2d 663.
Attorney's absence from court proceeding is not contempt
committed within presence of court. 59 H. 425, 583 P.2d 329.
Refusal to perform an act which the contemnor is unable to
perform must be punished as criminal rather than civil contempt. 60 H. 160,
587 P.2d 1220.
Failure to set forth factual specifications required in
subsection (5) warranted reversal of contempt conviction. 60 H. 221, 588 P.2d
428.
Summary application of section upheld. 65 H. 119, 648 P.2d
1101.
Where there is a trial without a jury, the judge who lodged
the complaint for contempt may not decide the outcome. 70 H. 459, 776 P.2d
1182.
Oral findings by the trial court are insufficient to meet the
requirements of section. 71 H. 564, 798 P.2d 906.
Compulsory joinder of offenses requirement under §701-109(2)
applies to criminal contempt charges. 72 H. 164, 811 P.2d 815, cert. denied,
112 S. Ct. 194.
Where there is no judgment, sentence, or commitment for an
appellate court to review pursuant to paragraph (5), petition requesting ruling
that attorney's conduct was not contemptuous was premature. 74 H. 267, 842
P.2d 255.
Counsel yelling at the court and blatantly stating, in the
presence of the jury, that court was working with opposing counsel, were simply
contemptuous acts that supreme court found to be inexcusable. 76 H. 187, 873
P.2d 66.
Trial court erred by failing to include any factual
specifications in its judgment as required under subsection (5); in such case,
a judgment of conviction of criminal contempt must be vacated and not
reversed. 88 H. 188, 964 P.2d 642.
Where defendant was appropriately convicted of and sentenced
for criminal contempt under subsection (3)(a) and subsection (5) required
defendant to seek review in a proceeding for an extraordinary writ or special
proceeding, defendant's direct appeal dismissed for lack of appellate
jurisdiction. 92 H. 178, 989 P.2d 262.
Order called for by this section should be in form of a
written order to show cause. 7 H. App. 95, 746 P.2d 574.
When prosecutor is necessary to bring charge for offense
under section. 7 H. App. 298, 758 P.2d 690.
Factual specifications requirement may be satisfied if
particular circumstances of the case are described in the district court's oral
findings. 7 H. App. 586, 788 P.2d 176.
Contemnor has no standing to appeal under paragraph (3)(a);
judgment must be reviewed by extraordinary writ or special proceeding;
attorney's tardy court appearance constitutes indirect contempt under paragraph
(3)(b). 9 H. App. 249, 833 P.2d 85.
Minor was properly adjudicated a law violator in a criminal
contempt proceeding for failing to comply with rules of a protective
supervision order. 96 H. 255 (App.), 30 P.3d 269.
Where there was no evidence that when defendant failed to
appear in court defendant violated subsection (1)(g) by knowingly disobeying or
resisting "the process, injunction, or other mandate of a court",
defendant could not be convicted of criminal contempt of court under this
section. 105 H. 274 (App.), 96 P.3d 603.
As the no-contact condition of defendant's probation sentence
was not a "process, injunction, or other mandate of a court" that, if
violated, was punishable as criminal contempt, but rather, was a condition placed
on defendant for the privilege of being released into the community on
probation rather than being imprisoned, the statutory prerequisites for a
criminal-contempt conviction were not present in the case and this section was
not applicable to convict defendant for criminal contempt for violating a term
of probation. 120 H. 312 (App.), 205 P.3d 577.
Criminal contempt of court under this section is not
available as a sanction for a violation of a condition of probation as there is
no provision in chapter 706 that authorizes the use of criminal contempt as a
sanction for violation of a condition of probation; the exclusive sanctions for
a violation of a condition of probation in chapter 706 are set forth in
§706-625. 120 H. 312 (App.), 205 P.3d 577.
Mentioned: 86 H. 214, 948 P.2d 1055.
__________
§710-1077 Commentary:
1. Perkins, Criminal Law 456 (1957).
2. Prop. Mich. Rev. Cr. Code, comments at 420.
3. Perkins, supra at 462.
4. Whether the historical analysis was ever sound is subject
to doubt. See Bloom v. Illinois, 391 U.S. 194, 198 note 2 (1968).
5. Article III, §2, of the Constitution provides that
"[t]he Trial of all Crimes, except in cases of Impeachment, shall be by
jury...." The Sixth Amendment states that "[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial
jury...." The Fifth and Fourteenth Amendments forbid the federal
government and the states from depriving a person of "life, liberty or
property without due process of law."
6. United States v. Barnett, 376 U.S. 681, 692, rehearing
denied, 377 U.S. 973 (1964). See also Green v. United States, 356 U.S. 165,
183-187 (1958), and the cases collected therein.
7. See note 6 supra.
8. 384 U.S. 373 (1966).
9. See note 4 supra.
10. 391 U.S. 216 (1968).
11. "It is old law that the guarantees of jury trial found
in Article III and the Sixth Amendment do not apply to petty offenses. Only
today we have reaffirmed that position. Duncan v. Louisiana, 391 U.S. 145, 88
S. Ct. 1444, 20 L.Ed.2d 491 (1968)." Bloom v. Illinois, supra at 210.
12. Bloom v. Illinois, supra at 201-202.
13. Id.
14. United States v. Barnett, supra at 694 note 12.
15. In a note to Duncan v. Louisiana, 391 U.S. 145, 162 (1968),
the Court said: "Cheff involved criminal contempt, an offense applied to
a wide range of conduct including conduct not so serious as to require jury
trial absent a long sentence. In addition criminal contempt is unique in that
legislative bodies frequently authorize punishment without stating the extent
of the penalty which can be imposed. The contempt statute under which Cheff
was prosecuted, 18 U.S.C. §401, treated the extent of punishment as a matter to
be determined by the forum court. It is therefore understandable that this
Court in Cheff seized upon the penalty actually imposed as the best evidence of
the seriousness of the offense for which Cheff was tried." (Emphasis
added.) This explanation of the largely unstated reasoning in Cheff became, in
an opinion decided the same day as Duncan, the "rule in Cheff." In
Bloom v. Illinois, supra at 211, the Court said: "Under the rule in
Cheff, when the legislature has not expressed a judgment as to the seriousness
of an offense by fixing a maximum penalty which may be imposed, we are to look
to the penalty actually imposed as the best evidence of the seriousness of the
offense. See, ante, p. 503, n. 35." (Emphasis added.)
16. Duncan v. Louisiana, supra at 161.
17. See, e.g., Cheff v. Schnackenburg, see note 8 supra, which,
however, set the maximum at six months not on the basis of constitutional
principles, but on the basis of the Court's supervisory powers, and Dyke v.
Taylor Implement Mfg. Co., see note 10 supra, which upheld a conviction for
criminal contempt, notwithstanding the fact that the defendant was denied trial
by jury, where the punishment was limited by statute to ten days' imprisonment
plus fine.
18. Green v. United States, 365 U.S. 165, 193 (1958)
(dissenting opinion); United States v. Barnett, supra at 724, (dissenting
opinion); Cheff v. Schnackenburg, supra at 384 (dissenting opinion); Dyke v.
Taylor Implement Mfg. Co., supra at 223 (dissenting opinion).
19. Compare Barnett, supra at 727 ("[I]f the present
defendants committed the acts with which they are charged, their crimes cannot
be classified as 'petty,' but are grave indeed."), and Cheff, supra at 387
("[T]he determination of whether the offense is 'petty' also requires an
analysis of the nature of the offense itself; even though short sentences are
fixed for a particular offense a jury trial will be constitutionally required
if the offense is of a serious character."), with Dyke, supra at 223
("I am loath to hold whippings or six months' punishment 'as petty.' And
here, where the offense is punishable by a $50 fine and 10 days in jail behind
bars, I feel the same way. Even though there be some offenses that are
'petty,' I would not hold that this offense falls in that category.")
20. H.R.S. §729-1 ("Whoever, after trial by jury, is
adjudged guilty of contempt of any court...shall be fined not more than $500 or
imprisoned not more than two years....").
21. Id.
22. H.R.S., Chapter 729.
23. See H.R.S. §729-1, which provides inter alia that one
commits contempt "by publishing animadversions on the evidence or
proceedings in a pending trial tending to prejudice the public respecting the
same, and to obstruct and prevent the administration of justice; or by
knowingly publishing an unfair report of the proceedings of a court, or
malicious invectives against a court or jury tending to bring the court or
jury, or the administration of justice[,] into ridicule, contempt, discredit or
odium...."
24. See Perkins, supra at 461.
25. H.R.S. §729-1.
26. Id.
27. Id. §729-5.
28. Id. §729-2.