For a fairly simple concept (play stupid games win stupid prizes), contempt of court has been subject to all sorts of legislation and case law trying to define the parameters of this judicial power. What can be punished? What process is needed for punishment? How much punishment can be meted out? These questions come up more than you'd think as people find varied and imaginative ways to run afoul of the judge and court.
RULE: 6 months is the maximum punishment for contempt without a jury.
The place to begin this discussion is in the United States Supreme Court. In 1970, that court was faced with the question of whether the State of New York could convict a defendant of a crime carrying a possible year punishment without a jury. Five justices ruled that it could not. Two of those justices said every crime that carries jail time carries a constitutional right to a jury trial. The other three said that petty offenses, which they defined as those carrying a punishment of up to six months, did not require a jury.1 Baldwin v. New York, 399 U.S. 66 (1970). From these three votes was born the now generally accepted rule that no jury is required for a crime carrying a maximum six month punishment.
A couple years prior to Baldwin the court had ruled that a judge couldn't imprison someone for two years on a contempt charge without seating a jury, but declined to set a hard line at which a jury was required. Bloom v. State of Illinois, 391 U.S. 194 (1968). Still, by 1974 the six month limit was an accepted fact and the court ruled that, while a number of summary contempts entered and ruled upon during the trial could have an aggregate punishment in excess of six months, if multiple contempts are tried and punished after the trial there must be a jury to impose an aggregate punishment of greater than six months. Codispoti v. Pennsylvania, 418 U.S. 506 (1974).
Types of Contempt
Usually, if I'm asked the types of contempt I answer summary and plenary. This division concentrates on how the judge handles the contempt. Summary is punished directly by the judge without any of the trappings of due process. Plenary is tried with the defendant being given all the rights she is entitled to under the various statutes and constitutions.
However, courts also divide contempts between direct and indirect. See Robinson v. Commonwealth, 41 Va.App. 137 (2003). This division concentrates on the activity of the contemptor. If the contemptor does something in the courtroom or in a manner that disrupts what is going on in the courtroom it is direct contempt.2 If the contemptor does something not immediately disruptive, but in defiance of the court's power to administer justice, it is indirect contempt. In theory, summary goes with direct and plenary goes with indirect. However, this is subject to modification and in Virginia the General Assembly has done so.
The Virginia Summary Contempt Statutes
§ 18.2-456. Cases in which courts and judges may punish summarily for contempt.
A. The courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases:
1. Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice;
2. Violence, or threats of violence, to a judge or officer of the court, or to a juror, witness, or party going to, attending, or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court;
3. Vile, contemptuous, or insulting language addressed to or published of a judge for or in respect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding;
4. Misbehavior of an officer of the court in his official character;
5. Disobedience or resistance of an officer of the court, juror, witness, or other person to any lawful process, judgment, decree, or order of the court; and
6. Willful failure to appear before any court or judicial officer as required after having been charged with a felony offense or misdemeanor offense or released on a summons pursuant to § 19.2-73 or 19.2-74.
B. The judge shall indicate, in writing, under which subdivision in subsection A a person is being charged and punished for contempt.
C. Nothing in subdivision A 6 shall be construed to prohibit prosecution under § 19.2-128.
This is what most Virginian lawyers and judges refer to when they talk about contempt. § 18.2-457 limits punishment of "any such contempt as is mentioned in" § 18.2-456(A)(1) to 10 days and/or $250 unless a jury is impaneled to determine punishment. § 18.2-458 limits a district court judge's ability to punish any summary contempt to 10 days and/or $250 and § 18.2-459 outlines the procedure for appealing the general district court summary contempt findings.
Note that while (A)(2) thru (A)(6) are subject to summary punishment by the judge they all cover things which are indirect contempt in many - if not most - circumstances. Note also, that the judge "may" use summary judgement under this statute - not shall. The statutes do not foreclose the use of plenary contempt.
Virginian Indirect Contempt
In Robinson, the Virginia Court of Appeals confuses indirect contempt with plenary: "Indirect or constructive contempt charges, therefore, are not brought summarily, but must proceed under a more formal procedure than an immediate adjudication by the court." Id. at 146. As discussed in the previous paragraph, this is clearly not true. However, although the language in Robinson is less clear than we might hope for, it does set out the idea that if the defendant is accused of indirect contempt and it is treated as plenary contempt (constitutional and statutory procedures observed), the judge can find the defendant guilty of common law contempt and sentence him without regard to any limitations in the summary contempt statutes.
Maximum Punishment
Theoretically, there is no maximum punishment for indirect, plenary contempt in Virginia. The appellate courts refer to "the unbridled authority of courts to punish for criminal contempt." Baugh v. Commonwealth, 14 Va.App. 368 (1992)(oft quoted thereafter). Unbridled, for those of you who didn't grow up watching cowboy movies, means "unrestrained." In other words, there is no maximum punishment for contempt in Virginia - only procedural limits as to how a judge can get there.
Conclusion
Summary contempt is limited by §§ 18.2-456 thru 459. A district court judge is limited to 10 days and/or a $250 fine for all summary contempt (whether direct or indirect) while a circuit court judge is limited to that punishment only in cases of direct, summary contempt. Even then, a circuit court judge can impanel a jury and seek a higher punishment.3
Plenary contempt is clearly available to the circuit court judge and has no maximum sentence except for the mandate from the U.S. Supreme Court that if contempt is to be greater than 6 months the contemptor is entitled to a jury to set the punishment.
On the other hand, plenary contempt does not appear to be available to the district courts. As already established, there is no maximum punishment for contempt. Under § 16.1-123.1(1) the general district court has jurisdiction over
local ordinances, misdemeanors, and traffic infractions while § 16.1-241
limits the jurisdiction of juvenile and domestic courts to those domestic crimes not rising to a
felony. See e.g. subsections I & J. A misdemeanor is defined as a crime not "punishable with confinement in a state correctional facility." § 18.2-8 (definition set by definition of a felony). Under § 53.1-20(B), a person "sentenced to the Department or sentenced to confinement in jail for a year or more shall be placed in the custody of the Department and received by the Director into the state corrections system." Ipso facto, a district court judge does not have, by the enabling statutes laid out by the General Assembly, the jurisdiction to address any crime that has the potential to punish the defendant more than twelve months and, as plenary contempt carries a potential sentence greater than 12 months it lies outside the jurisdiction granted a district judge.
The only real argument I can think of for a district court to have plenary contempt powers is that since a jury is required for a contempt sentence of more than 6 months and a Virginia district court lacks the power to impanel a jury a district court has plenary contempt powers up to six months. The appellate courts' reference to contempts punished with six months or less as "petty" would seem to support this distinction. However, I find this line of reasoning non-persuasive as the potentially infinite punishment attached to plenary contempt effectively makes it a felony whether a district court can seat a jury or not. An apt analogy might be that a district court lacks the ability to convict a defendant of grand larceny even if the sentencing guidelines only call for three months punishment; it has a potential maximum sentence of twenty years therefore it goes to circuit court for a felony determination. So, I don't think district courts have plenary contempt power in Virginia.
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1 Three other justices dissented and one did not participate.
2 Typically, this could be someone yelling or fighting in the hall outside the courtroom. I have seen it from further away. A judge in Pitcairn County was doing arraignments and bond hearings by video from the jail and construction at the jail was making so much noise he couldn't communicate with the defendants. He told a deputy to tell the construction people to stop; they didn't. He had the construction boss detained and brought to the courtroom to answer a possible contempt.
3 This leaves us with all sorts of interesting procedural questions. Does the defendant get an attorney? But, then it would become a plenary hearing. Does the defendant get jury selection? If so, who is striking jurors from the other side? The judge? In theory, the prosecutor has no place in summary contempt; it is entirely in the breast of the court. --- etc. et cetera &cetera . . .
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