Opinion
No. COA12–865.
2013-05-21
In the Matter of Jennifer FOSTER.
Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
Appeal by defendant from order entered 17 January 2012 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 12 December 2012. Attorney General Roy Cooper, by Assistant Attorney General Kimberly N. Callahan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
GEER, Judge.
Defendant Jennifer Foster appeals from the superior court's order holding her in direct criminal contempt of court. On appeal, defendant primarily argues that she was not given summary notice of the contempt charge and a summary opportunity to respond prior to being held in contempt. Since defendant was held in contempt before being given an opportunity to explain why contempt sanctions should not be imposed, we hold that the superior court erred in finding that defendant was given a summary opportunity to respond pursuant to N.C. Gen.Stat. § 5A–14(b) (2011). We, accordingly, reverse the court's order finding defendant in contempt. Given our holding, we do not reach the merits of defendant's remaining arguments.
Facts
The State's evidence tended to show the following facts. On the evening of 5 November 2011, a Saturday, defendant entered the Buncombe County Detention Facility and went to an area designated by sign as a “Magistrate Court.” Defendant told the magistrate on duty that she was an attorney, was present on behalf of some Occupy Ashville protestors, and then asked, “ ‘What the hell is going on around here?’ “ The magistrate told defendant to “watch her language” and stated that, as an attorney, defendant should know not to curse in a courtroom.
Defendant proceeded to request a list of names of individuals for whom warrants had been issued in connection with a protest march. The magistrate declined to give defendant the names, but said she could check whether defendant had an active warrant. After defendant requested she do so, the magistrate told defendant that she did not have an active warrant. Defendant then stated: “ ‘What the fuck is going on around here?’ “ The magistrate again warned defendant not to curse in the courtroom and asked defendant to leave.
In response, defendant stated, “ ‘Oh, yeah, I said “fuck,” ‘ “ “ ‘This is fucking ridiculous,’ “ and “ ‘This is fucking crazy .’ “ In total, defendant made approximately five statements containing the word “fuck.” After the third or fourth time defendant said “fuck,” the magistrate “informed her that [the magistrate] was going to hold her in contempt.” Defendant continued cursing and walked towards the door. Although the magistrate told defendant to stop and return because she had been held in contempt, defendant exited the office.
The magistrate called law enforcement officers and instructed them to detain defendant and bring her back to the magistrate's office. The officers arrested defendant and returned her to the office, where the magistrate informed defendant she had been held in contempt and that she would be jailed for five days.
The magistrate also gave defendant a written contempt order that she had filled out. The written order provided that defendant was held in contempt for:
REPEATEDLY CUSS[ING] IN THE COURTROOM AFTER BEING INSTRUCTED TO WATCH HER LANGUAGE. “HELL” AND “FUCK” WERE REPEATED NUMEROUS TIMES TO THE MAGISTRATE. DEFENDANT WAS CHECKING ON THE STATUS OF WARRANTS ON OTHER INDIVIDUALS AND BECAME BELLIGERENT. SHE WAS TOLD SHE WOULD BE HELD IN CONTEMPT OF COURT AND SHE CONTINUED TO CUSS AS SHE WALKED TO THE DOOR TO EXIT.
DEFENDANT FIRST INFORMED MAGISTRATE THAT SHE IS AN ATTORNEY SO WHEN SHE CUSSED SHE WAS TOLD THAT AS AN ATTORNEY SHE SHOULD KNOW THAT SHE IS IN A COURT ROOM [SIC] AND SHOULD KNOW NOT TO CUSS. SHE CONTINUED.
Defendant told the magistrate that she had not known she was in a courtroom and asked whether the magistrate was, in fact, a judicial official.
Approximately 30 minutes later, the magistrate was notified that defendant had given notice of appeal de novo to superior court. The magistrate then completed a written “Conditions of Release and Release Order” form that provided for a $10,000.00 cash-only appeal bond. The magistrate told defendant that she was imposing that bond requirement because of the great weight of evidence against defendant that the magistrate had personally observed; the fact that defendant, as an attorney, had shown no respect for the court and thereby indicated to the magistrate that defendant may not appear for the de novo appeal hearing; and the fact that defendant's association with the protestors may have sparked some sort of protest or riot that would threaten public safety.
The cash-only bond requirement imposed by the magistrate violated the local policy set by the resident superior court judge and the chief district court judge of the 28th Judicial District. The local policy specifically provided that “[c]onditions requiring ‘Cash Only’ are not allowed.”
Defendant's appeal de novo to superior court was heard on 1 December 2011. Defendant testified in her own defense to the following. Defendant received a phone call from an Occupy Ashville protestor at approximately 8:00 p.m. on 5 November 2011. The “hysterical” caller explained warrants had been issued against protestors based on participation in a political march. Defendant believed, as an attorney, she could help peacefully resolve the situation by going to the magistrate's office, obtaining a list of protestors with warrants, and helping those individuals turn themselves in.
Upon arrival to the magistrate's office, defendant was “somewhat annoyed,” stated she was an attorney, and asked, “ ‘[W]hat the hell is going on with these warrants for people being arrested for marching without a permit.’ “ The magistrate responded, “ ‘Watch your language,’ “ defendant complied, and the magistrate then declined to give defendant either a list of names of protestors with warrants or the number of protestors with warrants. When leaving the office, defendant stated, “ ‘What the fuck is going on? This is a bunch of bullshit.’ “ According to defendant, prior to sentencing defendant, the magistrate never warned defendant that she was in a courtroom or could be held in contempt and never told defendant to return to the courtroom because she was being held in contempt.
On cross-examination, defendant admitted she created a Facebook page and posted on that page the following language: “ ‘Yes, I cursed and was generally raising hell: “What the fuck is going on around here, etc.,” as I exited the magistrate's office.’ “ Defendant additionally stated that she posted the following on the Facebook page: “What the fuck is going on here? And this is a bunch of bullshit, as I'm walking out the door. And there you have the evidence of my contempt.”
At the conclusion of the de novo hearing, the superior court made oral findings of fact and conclusions of law, and rendered an order affirming the magistrate's order holding defendant in contempt. On 17 January 2012, the superior court entered a written order finding defendant in contempt, using the form AOC–CR–390, Rev. 4/11 entitled “DIRECT CRIMINAL CONTEMPT/SUMMARY PROCEEDINGS/FINDINGS AND ORDER.” In its written order, the court found that defendant “REPEATEDLY CURSED IN THE MAGISTRATE COURT AFTER BEING INSTRUCTED NOT TO USE THAT TYPE OF LANGUAGE.” The order also included a finding, in the AOC form's preprinted language, that “the contemnor was given summary notice of the charges and summary opportunity to respond.” Defendant timely appealed to this Court.
Discussion
“In a contempt proceeding, we review the determination of a trial court by asking ‘whether there is competent evidence to support the [court's] findings of fact and whether the findings support the conclusions of law.’ “ State v. Okwara, ––– N.C.App. ––––, ––––, 733 S.E.2d 576, 578 (2012) (quoting Hartsell v. Hartsell, 99 N.C.App. 380, 385, 393 S.E.2d 570, 573 (1990), aff'd per curiam, 328 N.C. 729, 403 S.E.2d 307 (1991)). “However, ‘[f]indings of fact to which no error is assigned are presumed to be supported by competent evidence and are binding on appeal.’ “ Tucker v. Tucker, 197 N.C.App. 592, 594, 679 S.E.2d 141, 142–43 (2009) (quoting Pascoe v. Pascoe, 183 N.C.App. 648, 650, 645 S.E.2d 156, 157 (2007)).
Defendant contends, among other arguments, that the superior court erred in affirming the magistrate's summary direct criminal contempt adjudication because the court's finding that the magistrate gave defendant summary notice and a summary opportunity to respond, as required under N.C. Gen.Stat. § 5A–14, was erroneous. We agree.
We note that, in her brief, defendant discusses the superior court's oral rendition of its findings at the hearing. However, since the court reduced its contempt order to writing, the controlling findings are those in the written order—specifically, the preprinted finding that “the contemnor was given summary notice of the charges and summary opportunity to respond”—and not those rendered at the hearing. See Durham Hosiery Mill Ltd. P'ship v. Morris, ––– N.C.App. ––––, ––––, 720 S.E.2d 426, 428 (2011) (“The general rule is that the trial court's written order controls over the trial judge's comments during the hearing.”).
N.C. Gen.Stat. § 5A–14, the basis for the criminal contempt charge in this case, provides:
(a) The presiding judicial official may summarily impose measures in response to direct criminal contempt when necessary to restore order or maintain the dignity and authority of the court and when the measures are imposed substantially contemporaneously with the contempt.
(b) Before imposing measures under this section, the judicial official must give the person charged with contempt summary notice of the charges and a summary opportunity to respond and must find facts supporting the summary imposition of measures in response to contempt. The facts must be established beyond a reasonable doubt.
(Emphasis added.)
At the 1 December 2011 superior court hearing, the magistrate testified that upon being admitted into the magistrate's office, defendant stated she was representing Occupy Ashville protesters and asked, “ ‘What the hell is going on around here?’ “ The magistrate told defendant that, as an attorney, defendant “should already be aware that the magistrate's office is a courtroom and that she should watch her language.” When defendant claimed she had not “cussed,” the magistrate responded that defendant had.
The magistrate further testified that after she checked whether defendant had an active warrant, defendant said, “ ‘What the fuck is going on around here?’ “ The magistrate then stated, “ ‘Ms. Foster, this is the second time you've cussed in the courtroom. I'm going to ... have to ask you to leave.’ “ Defendant responded by making additional statements including the word “ ‘fuck.’ “ The magistrate testified that “[a]bout the second or third statement after I asked her to leave the courtroom, I informed her that I was going to hold her in contempt.” (Emphasis added.) Later, the magistrate again testified, “I informed [defendant] twice [that her behavior was disruptive] and then informed her that she was going to be held in contempt.”
The magistrate then testified to the following:
A.... She continued to cuss, but at that point walked towards the glass enclosure and glass door. I told her to stop and come back to the window, and she continued out the door.
Q. And what was your purpose in having her come back to the window?
A. Because I had already informed her that I was going to hold her in contempt.
Q. Did she stop?
A. No.
Q. Where was it that she went to after that?
A. She left the building.
(Emphasis added.) The magistrate further stated that she ordered officers in the facility to take defendant into custody, and “[o]nce she was searched and processed, then they brought her back over and I did an initial appearance to inform her that she had been held in contempt, the reasons that I had held her in contempt, and that I was holding her in contempt for five days. She was also given a copy of the contempt form that I had filled out.” (Emphasis added.)
Thus, the magistrate's testimony tended to show that after defendant cursed, the magistrate told defendant not to curse; defendant cursed again; the magistrate told defendant she had cursed again and asked defendant to leave; defendant continued to curse several more times while walking to the door; and the magistrate then held defendant in contempt prior to the time defendant actually left the office. While the magistrate recalled telling defendant “that she was going to be held in contempt,” it is apparent from the entirety of the magistrate's testimony that this statement was not a warning that defendant would be held in contempt if she used inappropriate language again, but, rather, that statement was the language the magistrate used when she actually held defendant in contempt.
This conclusion is supported by the magistrate's further testimony that even though the magistrate had ordered defendant to leave, the magistrate then ordered defendant not to leave “[b]ecause I had already informed her that I was going to hold her in contempt.” The conclusion that the magistrate had already held defendant in contempt when the magistrate ordered defendant not to leave the office is also supported by the magistrate's testimony that she had the officers arrest defendant; defendant was then searched and processed; and defendant was returned to the magistrate's office only after being processed. At that point, the magistrate informed defendant “she had been held in contempt,” handed defendant a copy of the contempt form that the magistrate had already filled out, and sentenced defendant to five days in jail.
The magistrate's testimony did not show that the magistrate warned defendant that she would be held in contempt if she continued to curse. While defendant probably could have assumed that was a possibility, the magistrate's testimony also does not show that she gave defendant an opportunity to be heard regarding the contempt charge prior to being held in contempt.
Although defendant's own version of the events varied a slight bit from the magistrate's testimony, there is also nothing in defendant's testimony suggesting that she was given a summary opportunity to respond to the contempt charge prior to being held in contempt. Accordingly, the record contains no evidence that defendant was given a summary opportunity to respond to a potential contempt charge prior to being held in contempt.
This Court addressed the requirement of a summary opportunity to respond in Peaches v. Payne, 139 N.C.App. 580, 533 S.E.2d 851 (2000). There, after an attorney had questioned the rulings of the trial court several times during a trial, the court removed the jury and told the attorney that he was being held in contempt because of his disrespect for the court. Id. at 585, 533 S.E.2d at 853. Court was then immediately recessed without the contemnor having been given an opportunity to present reasons not to impose a sanction. Id. at 587, 533 S.E.2d at 855.
Although this Court noted that a formal hearing is not required when the trial court punishes acts of contempt in its presence, the Court held that the statute “guarantee[s] a potential contemnor a chance to respond to the charges.” Id., 533 S.E.2d at 854. The Court concluded that the trial court failed to comply with the statutory requirements when it did not give the contemnor a summary opportunity to respond and, therefore, reversed. Id. The Court specifically noted with respect to attorneys being held in contempt:
Trial judges must have the ability to control their courts. However, because a finding of contempt against a practitioner may have significant repercussions for that lawyer, judges must also be punctilious about following statutory requirements.
Id., 533 S.E.2d at 855.
This Court again addressed the requirement of an opportunity to be heard in State v. Randell, 152 N.C.App. 469, 567 S.E.2d 814 (2002) (per curiam). In Randell, the defendant remained seated when first the bailiff announced “all to rise” and again when the judge called on everyone to rise. Id. at 471, 567 S.E.2d at 816. The trial court took a recess, called the defendant up to the bench, and told him that he was in custody for 30 days for contempt of court based on his not standing up. Id. at 470–71, 567 S.E.2d at 816. Later in the day, after the defendant had already been taken into custody, the defendant was given an opportunity to be heard on the contempt charge, and the trial court explained at that time that the defendant “was going to be punished for not giving his name when the court asked for it in addition to not standing when summoned to do so.” Id. at 471, 567 S.E.2d at 816.
On appeal, this Court reversed because, “[a]lthough the trial court did give defendant ample opportunity to explain himself after the fact, such does not serve to correct” the court's failure to do so prior to holding the defendant in contempt. Id. at 472, 567 S.E.2d at 817. The Court stressed that the purpose of the statutory requirement of an opportunity to be heard is to ensure that the individual has an opportunity to present reasons not to impose a sanction. Id. The Court observed “that defendant's actions were indeed contemptuous,” but nonetheless reversed the order holding him in contempt because of the trial court's failure to provide a summary opportunity to be heard. Id.
We believe Peaches and Randell are controlling in this case. Here, as indicated in both the magistrate's and the superior court's written contempt orders, the basis for the contempt charge was defendant's repeated use of profanity in the magistrate court after being warned not to curse. The evidence showed that defendant was given at least two warnings about profanity, but was never specifically informed about a looming contempt charge until she was actually held in contempt. As in Randell and Peaches, defendant's opportunity to be heard was only granted after the court had announced that defendant was being held in contempt of court.
The State nonetheless points to In re Owens, 128 N.C.App. 577, 496 S.E.2d 592 (1998), aff'd per curiam,350 N.C. 656, 517 S.E.2d 605 (1999), as establishing that the magistrate met the statutory requirements of N.C. Gen.Stat. § 5A–14(b). In Owens, the trial court held a reporter in contempt when she refused to answer questions in a criminal case, claiming a First Amendment privilege against testifying. 128 N.C.App. at 579–80, 496 S.E.2d at 594. This Court rejected the reporter's argument on appeal that she had been denied an opportunity to explain why sanctions should not be imposed because: (1) the trial court had already denied the reporter's motion to quash the subpoena against her; (2) prior to the reporter's testimony, “and in her presence, the trial judge also expressly told another testifying reporter who asserted the privilege that ‘I've already ruled twice that privilege does not exist for you all in these kinds of situations' “; (3) the reporter “clearly was on notice that the trial court had considered the privilege claim and rejected it”; and (4) “[b]efore holding her in contempt, the trial judge specifically warned [the reporter] that her failure to answer questions would subject her to contempt sanctions.” Id. at 581, 496 S.E.2d at 594.
Notably, this Court in Peaches distinguished Owens by observing that the contemnor in Owens “had ample opportunity during her testimony at the hearing on the motion in limine to present on the record her reasons for declining to comply with the court's order ....“ Peaches, 139 N.C.App. at 587, 533 S.E.2d at 854. Those facts differed from the facts in Peaches, however, where “the court advised contemnor that, because he had questioned the rulings of the court and shown disrespect for the court, he was in the bailiff's custody. Court was immediately recessed without contemnor having been given ‘an opportunity to present reasons not to impose a sanction.’ “ Id., 533 S.E.2d at 855 (quoting Owens, 128 N.C.App. at 581, 496 S.E.2d at 594).
We similarly conclude that Owens is distinguishable from this case. Defendant was told to stop cursing and to leave the office, but the magistrate did not, prior to holding her in contempt, give defendant a summary “ ‘opportunity to present reasons not to impose a sanction.’ “ Id. (quoting Owens, 128 N.C.App. at 581, 496 S.E.2d at 594).
The State also argues that the superior court's preprinted finding of fact that defendant was given an opportunity to be heard is supported by the magistrate's written contempt order, which stated that defendant “was given summary notice of the charges and summary opportunity to respond.” However, because the magistrate's order was the order appealed de novo to superior court, the findings in that order did not constitute evidence before the superior court. See State v. McGee, 66 N.C.App. 369, 371, 311 S.E.2d 383, 384 (1984) (holding superior court, upon de novo review, erred in denying defendant's motion to dismiss contempt charge because State presented no evidence of contempt other than findings in appealed magistrate's order).
Finally, the State argues, “Defendant had the opportunity to explain to the magistrate why she felt compelled not to abide by her directives, but chose instead to continue to use profane language in the magistrate's presence.” While the evidence did show that the magistrate twice warned defendant not to curse, there was no evidence that the magistrate ever gave defendant an opportunity to provide reasons why contempt sanctions should not be imposed. The magistrate's warnings not to curse did not constitute evidence that defendant failed to seize an opportunity to respond to the charge of which she had not been informed. See Randell, 152 N.C.App. at 472, 567 S.E.2d at 817 (holding defendant not given opportunity to be heard on direct criminal contempt charge despite evidence of directives by trial court and bailiff for defendant to stand up prior to court holding defendant in contempt).
As in Randell, we agree that defendant's behavior was contemptuous, but since the magistrate failed to comply with the statutory requirements prior to holding defendant in contempt, we must reverse. We are, however, very troubled by defendant's use of profanity in the magistrate's office while conducting court-related business despite warnings by the magistrate about the inappropriate language. Such disrespect, particularly by an attorney familiar with proper courtroom practices, is wholly inappropriate. In addition, we are disturbed by defendant's Facebook posts following the incident which evidence her failure to acknowledge the wrongfulness of her conduct—indeed the posts indicate a very cavalier attitude.
Defendant went so far as to create a Facebook post regarding the incident that stated: “Funny thing is that pursuant to the First Amendment, myself, like every one of you, has the right to tell the judge they are a fucking idiot, which I did not even do in this case. Innocent, I tell you, struck by lightning in this arbitrary system we call American justice.” Given defendant is a lawyer practicing in our State's courts, we find defendant's attitude offensive and incomprehensible. Nonetheless, we must reverse under Peaches and Randell.
Because of our holding on this issue, we need not address defendant's remaining arguments. We note, however, that we are also troubled by the magistrate's choice to violate the bond policy established for the 28th Judicial District pursuant to N.C. Gen.Stat. § 15A–535(a) (2011). That policy provides unambiguously that “[c]onditions requiring ‘Cash Only’ are not allowed.” While defendant's behavior was certainly outrageous, the magistrate should not have reacted to that behavior by disregarding the established bond policy.
Reversed. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).