E.g., Losavio, Jr. v. District Court, 182 Colo. 180, 512 P.2d 266 (1973); Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892). The power to punish for criminal contempt is an inherent and indispensable power of the court and exists independently of legislative authorization.Austin v. City County of Denver, 156 Colo. 180, 397 P.2d 743 (1964); Allen v. Bailey, 91 Colo. 260, 14 P.2d 1087 (1932); People ex rel. Attorney General v. News-Times Publishing Co., 35 Colo. 253, 84 P. 912 (1906), writ of error dismissed sub nom. Patterson v. Colorado, 205 U.S. 454 (1907).
See id. Where an individual previously has been enjoined by the court against practicing law without a license, violations of that injunction are punishable in contempt proceedings conducted pursuant to C.R.C.P. 107.Cf. Austin v. City County of Denver, 156 Colo. 180, 184, 397 P.2d 743, 745 (1964) ("The power to punish for contempt, as a punitive measure or to coerce obedience, is an inherent and indispensable power of the courts."). Shell argues in passing that the proceedings below were constitutionally insufficient.
See Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950); Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984); Austin v. City and County of Denver, 156 Colo. 180, 397 P.2d 743 (1964); Pittman, 149 Colo. 380, 369 P.2d 85. Under Order 85-3, a minimum fine of $500 is imposed for late settlement of matters scheduled for trial of more than one day, regardless of the reasons for delay. The rule does not permit the trial judge in an appropriate case to forego imposition of a fine altogether or impose a fine of less than $500. In effect, Order 85-3 imposes a penal sanction without providing any opportunity for a hearing.
P.R. v. District Court, 637 P.2d 346, 350 (Colo. 1981); Wright v. District Court, 192 Colo. 553, 555, 561 P.2d 15, 16-17 (1977); Ealy v. District Court, 189 Colo. 308, 310, 539 P.2d 1244, 1245-46 (1975); Austin v. City County of Denver, 156 Colo. 180, 184-85, 397 P.2d 743, 746 (1964). A remedial contempt order must be supported by findings of fact establishing that the court's order has not been complied with and that the alleged contemner has the present ability to comply.
The purpose of the hearing is to ascertain the guilt of the accused by deciding contested factual issues. See Austin v. Denver, 156 Colo. 180, 397 P.2d 743 (1964). Where indirect contempt has been charged, as distinguished from contemptuous conduct occurring in the presence of the court, the respondent is entitled to notice of the charge, the right to be represented by counsel at the hearing, the right to call and confront witnesses, the right to an adjudication by the court, and, in the absence of an overriding and compelling interest, the right to have the hearing conducted in open court.
"The citation and a copy of the motion and affidavit shall be served upon such person a reasonable time before the time designated." Under C.R.C.P. 107(c), a defendant has the right to have notice of the purpose of the hearing and to have an opportunity to be heard. Ealy v. District Court, 189 Colo. 308, 539 P.2d 1244 (1975); Austin v. Denver, 156 Colo. 180, 397 P.2d 743 (1964). We have recognized that the contempt citation "plays a very important role in enabling the person charged to understandably shape his course and prepare his defense."
Not a single one of these requirements was met in the present case. In Austin v. Denver, 156 Colo. 180, 397 P.2d 743 (1964), this court reversed a contempt judgment involving alleged misconduct in the presence of and an affront to the dignity of the court. The defendant in that case supposedly made an improper communication to a jury member during a trial recess.
See Smith v. District Court, supra. A procedure which accords with due process of law is essential. See Austin v. Denver, 156 Colo. 180, 397 P.2d 743 (1964). I.
The ultimate determinant of "the validity of contempt procedures is whether due process of law is accorded." In re Marriage of Lamutt, 881 P.2d 445, 446 (Colo.App. 1994) (citing In re Marriage of Peper, 38 Colo.App. 177, 554 P.2d 727 (1976)); see also Austin v. City County of Denver, 156 Colo. 180, 184, 397 P.2d 743, 746 (1964) (in contempt proceedings, courts should improvise procedure that accords with due process).
Proceedings in contempt must accord with the tenets of due process. Austin v. City County of Denver, 156 Colo. 180, 397 P.2d 743 (1964); In re Marriage of Peper, 38 Colo. App. 177, 554 P.2d 727 (1976). Hence, we hold that a contempt proceeding is fatally defective unless it is shown that the contemnor had actual notice or knowledge of the existence of the order at the time he is claimed to have violated it. Knox v. Knox, 517 P.2d 1350 (Colo.App. 1974) (not selected for official publication).