Monday, April 20, 2009

LTG 04-15-09: On contempt

Published in the Omaha CityWeekly for the week of April 15, 2009

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If there’s one thing I’ve learned in all the time I’ve practiced law, it’s that you don’t want to make a judge mad at you.

Douglas County Juvenile Court Judge Christopher Kelly held the Nebraska Department of Health and Human Services (HHS) in contempt for failing to provide court-ordered services for a mentally-ill youth. Judge Kelly threatened to fine HHS up to $10,000 if it did not find an appropriate treatment facility for the child.
Now that will get your attention, believe me.

The contempt power Kelly used is part of the inherent authority a judge has to make sure the judge’s orders are obeyed. Contempt can be confusing, of course, because there are three different types of contempt that a person can face.

The first, and most common, type of contempt is called a civil contempt, and is used to “encourage” a person to do what a judge has ordered them to do. To find someone in civil contempt a judge must find that a person knowingly and willfully failed to abide by a judge’s order. If the judge makes that finding, the person is held in contempt.

The next step is called a “purge plan,” where the person found in contempt (technically called a “contemnor,” although I’m still not entirely sure how to pronounce that) is given an opportunity to come into compliance with the order. If the person doesn’t, the judge can add some additional “encouragement” by fining the person or ultimately putting them in jail.

I think the guy trying to teach me how to swing a golf club would like to be able to use that kind of encouragement.

The legal cliché about civil contempt is that the person in contempt is supposed to “have the keys to his own jail cell,” meaning that the sanctions are meant not to punish, but to ensure compliance with the order. The basic premise is true, although it’s not quite as easy as it sounds. For example, if someone goes to jail on contempt for behind on child support, that person may have the keys to his own cell, but he’ll have to fork over some cash before he gets to put the key in the lock.

The second, far less common, type of contempt is called criminal contempt. The purpose of criminal contempt is to punish past behavior regardless of current compliance – the exact opposite of civil contempt. Criminal contempt is an actual charge, filed by a prosecutor and worked through the courts just like any other criminal case.

The third and final type of contempt is called direct contempt. This is the authority of a judge to control what happens in his or her courtroom. If something happens in the courtroom, in the direct presence of a judge, that holds the court itself in contempt, the judge can find that person in direct contempt immediately. Generally, direct contempt is used if a person either directly defies a judge, or attacks a judge verbally or physically.

The sanctions for a direct contempt are the same as for a civil contempt, meaning that a person could be fined or go to jail. But direct contempt is immediate, with no hearing or appeal. It’s the ultimate go to jail, go directly to jail, do not pass Go, do not collect $200.

Direct contempt is also fairly unusual, as most people are insufficiently dim to misbehave directly in front of a judge to such a degree that the judge drops the hammer in open court. But it does happen – and more importantly, the judge has the authority at any time to do so if necessary.

Going back to the HHS case where Kelly made the contempt finding, it appears that the application of contempt was successful. HHS was able to find a placement for the youth that met his needs, and the judge didn’t have to enter the fines that he promised. But he’s keeping his options open, not declaring that HHS has purged itself of contempt until a hearing right around the youth’s nineteenth birthday in a few months.

I’ve had the good fortune to work with Judge Kelly on an Indian Child Welfare Act conference a few months ago. He’s a smart, tough, and fair-minded judge who is relentless in looking out for the welfare of the kids that come in front of him. More importantly, he’s a huge Creighton basketball fan who understands the importance of not allowing P’Allen Stinnett to bring the ball up court with under a minute to go in a tight ballgame.

But I can tell you one thing. I wouldn’t want Judge Kelly upset with me. A little word of advice to HHS – make sure you’ve got that kid’s treatment lined up before your next hearing.

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