Dreyer: Contempt is in the eye of the beholder?

Judge: Are you trying to show contempt for this court?

Mae West: I was doin’ my best to hide it.

Among many famous Mae West quotes (“You only live once, but if you do it right, once is enough.”), a passing line about contempt of court is hardly noteworthy. But it shows us the practical dilemma about a person’s conduct, free speech and a judge’s discretion. These days, we are hearing regularly about gag orders, contempt of court and other measures regarding a certain former president. There is a fine line between criticizing a court and insulting a judge — and the current examples may become important for those of us who navigate litigious waters for a living. Indiana law, like most states and federal jurisdictions, considers contempt of court under a rather broad standard. Our I.C. 34-47-2-1 allows direct contempt for “disturbing” a court with “noise or confusion,” including “talking, moving about, or by signs, or gestures; or … in any other manner.” It allows the judge to impose punishment on the spot up to six months for each act of contempt. “Indirect” contempt can be found for actions not in the presence of the court. But civil contempt is shown by actions that disobey or impede a court order — most commonly failure to pay child support — and it is enforced to ensure compliance, not as an affront to the court.

However, the recent order to reinstate a gag order upon the former president defendant — that is, what one can say out of court — is not technically contempt, but seems to be treated a such. The judge wrote: “First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice — a principle reflected in Supreme Court precedent, the Federal Rules of Criminal Procedure, and the Local Criminal Rules. And contrary to Defendant’s argument, the right to a fair trial is not his alone, but belongs also to the government and the public.”

So all of us out here in trial court land may feel like we know contempt when we see it. Or do we? There are many interesting contempt examples to note for our instruction, edification or just
plain enjoyment.

Skolnick v. State

“Padlock Pivarnik” is what disgruntled litigant Skolnick printed on a leaflet that he distributed to the public outside the courthouse in which sat Judge Alfred Pivarnik (future Indiana Supreme Court justice). Skolnick was taken to jail for direct contempt. Skolnick unsuccessfully litigated many other contempt findings in the 1970s involving his cases with Judge Pivarnik, and they served as a foundation for current law regarding direct/indirect contempt. But Skolnick won the leaflet appeal that instructed Indiana courts that direct contempt has to be in a judge’s presence or directly impede the courts’ operation. Otherwise, due process requires notice and hearing.

Al Capone in contempt for going to the race track, etc.

In 1929, famous gangster Al Capone was subpoenaed to a federal grand jury in Chicago. Capone submitted a doctor’s affidavit from Miami indicating that he was suffering from pleurisy and pneumonia, had been bedridden for the last six weeks and whose health would be threatened if he had to travel fro Miami to Chicago. It was concurred by three other Miami doctors. After a challenge from the federal prosecutors and admitting evidence, the court found that Capone had “frequent attendance at the race track,” as well as a boat trip and other travel during the period in which he was allegedly bed-ridden. The court entered a sentence of six months in Cook County Jail for contempt of court.

Turner v. Rogers: What judges have to do

In South Carolina, a deadbeat dad appeared in court with no attorney facing the mother of his children, also without counsel. The court found him in contempt and sentenced him to jail. Thus began the first case in 30 years regarding civil right to counsel. In 2011, the U.S. Supreme Court ruled that judges had to do four things before putting a pro se support defendant in jail for contempt: 1) notice that ability to pay is a critical issue, 2) use of a written form to get financial information about ability to pay, 3) questions from the court about financial status, and 4) an express finding that there is an ability to pay. Although Turner is a case about contempt, it continues to support efforts to appoint counsel for a variety of civil cases involving evictions, debt collection and other types. The case was remanded.

14 years for civil contempt!

In 1995, corporate attorney H. Beatty Chadwick had a reported worth of $2.75 million. During the acrimonious divorce against his wife, Bobbie, he claimed it was all gone. A Philadelphia judge put him in jail for contempt for not submitting a financial statement. He never did. In 2009, after 14 years in jail, a trial judge indicated that Chadwick “had the ability to comply with the court order … but that he had willfully refused to do so.” But Chadwick’s continued imprisonment would be proper only if it were likely he would ultimately comply. The judge said there was little chance of that. After release, Chadwick said, “If I had been convicted of murder in the third degree in Pennsylvania, I would have been out in half the time I was in jail.” A simple average rate calculation shows the $2.75 million to be worth at least $3.8 million when Chadwick was released in 2009. Sometimes contempt can be worth it.

Punishment cannot always work upon the resolve of some people. Susan McDougal, from another former president’s Whitewater cases, served a total of two years in jail for contempt of court for refusing to answer questions. She never did.•

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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association. Opinions expressed are those of the author.