CrimLaw

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Creating Law from Whole Cloth:

A lawyer had a bad conflict in scheduling court dates. We all have them, but this fellow was having a particularly bad day. He got stuck in one court and didn't call to tell the other court what was going on until two hours after his trial was to start. The second court held a hearing and found him guilty giving him a $1,000 fine, 30 days suspendened jail time, and forbade him practicing in the jurisdiction for one year.

The problem is that Virginia's Legislature has limited the ability of courts to punish contempt to 10 days and $250 unless a jury has been impaneled. See 18.2-457. A pesky limitation which the judge tries to get around by holding a "plenary" hearing on "indirect" contempt. In order to do this the judge finds that the summary contempt statute does not apply because this situation doesn't fall under 18.2-456(1). He's right it would fall under either 18.2-456(5) or 18.2-456(6) and still be constrained under 18.2-457.

Of course, the attorney appealed (we are by nature litigious). The Virginia Court of Appeals upheld the decision. It waxes on quoting Michie's Jurisprudence, Barton's Law Practice, AmJur, etc. to show that the attorney is in contempt and that the court has an inherent power to find contempt. Which may be correct as far as it goes.

The Appellate Court then goes on to quote a 1904 case for the proposition that there are summary/direct and constructive/indirect contempt. Yes, I know it's a stretch but, if you ignore the fact that the primary purpose of "indirect" contempt is to punish citizens for exercising their right to free speech, it could actually work as an excuse for the judge's actions except for one thing; the case it cites - indeed the very quote it uses - states that "the power of the court to punish is the same in both cases." Burdett v. Commonwealth, 103 Va. 838, 843, 48 S.E. 878, 880 (1904). So, if the court has limited power in punishing summary contempt it only has limited power in punishing indirect contempt (10 days = 10days; $250 = $250). But the court just passes by this without even so much as an attempt to explain it away.

So now we have new law in the Commonwealth. If your client commits an act which is contempt while directly in front of the judge during a proceeding in his case the judge can only give him 10 days but if he does something before or after the hearing he can be punished in whatever manner the judge deems appropriate (although I think there is still a six month limit out there without a jury).

Hopefully this will go to the Virginia Supreme Court for "clarification."

Here's the case.

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