Opinion
CR-02-2109.
February 27, 2004.
Appeal from Houston Circuit Court (CC-01-77 W-004).
The appellant, Benjamin E. Meredith, appeals from Judge Brad Mendheim's order holding him in direct contempt of court. He was fined $100 for this offense.
In its order, the circuit court made the following findings of fact:
"[Defendant's] Atty. Ben Meredith found in contempt of ct. for referring to the court as `he's an asshole,' w/in the hearing and presence of the court while the court was in session. Mr. Meredith punished summarily by a fine of $200 to be paid to the circuit clerk by 4:00 p.m. today, and Atty. Meredith banned from the ct. for the remainder of the day."
The trial court later reduced Meredith's fine to $100 in compliance with § 12-11-30(5), Ala. Code 1975.
In his brief to this Court, the appellant alleges that he requested a hearing before an impartial judge and that the circuit court denied this request. The State does not refute the appellant's claim, but states merely that, as a direct contemnor, he was not entitled to a hearing.
Rule 33.1(b)(1), Ala. R. Crim. P., defines direct contempt as follows:
"(1)'Direct Contempt' means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court's business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court's dignity and authority before the public."
See also Hawthorne v. State, 611 So.2d 436 (Ala.Crim.App. 1992).
Here, the record does not contain evidence indicating that "immediate action" was necessary "to prevent diminution of the court's dignity and authority before the public." The appellant's allegations in his appellate brief differ from those made in the trial court. The State argues that because the record is silent as to the appellant's claims, no error has been proven. The appellant argues that by denying his request for a hearing, the trial court has prevented him from making his record. Summary disposition of the contempt citation, he argues, was therefore improper. Moreover, because the language used "involve[d] gross disrespect or a personal attack upon the character of" Judge Mendheim, he should have referred the matter to another judge for a hearing. See Rule 33.5, Ala. R. Crim. P.
The Committee Comments to Rule 33.2, Ala. R. Crim. P., which address the summary disposition of direct contempts, states:
"The principal reason for requiring a time delay between citation and the imposition of sentence in ordinary cases is to provide a mandatory cooling-off period in the relations between the judge and the contemnor. Although Rule 33.5 does not permit a judge to rule in a case where the contempt involves a personal attack upon him, there is an inherent personal element in all contempt situations. See, e.g., Cooke v. United States, [ 267 U.S. 517 (1925]; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). A delay between citation and punishment gives all parties a chance to reacquire their objectivity. Also, it allows the contemnor time to discuss the matter with an attorney and to prepare a statement in his behalf.
"Although the Alabama decisions permit an absolutely summary procedure, see, e.g., Hancock v. Bell, [ 274 Ala. 390, 149 So.2d 842 (1963)]; Easton v. State, [ 39 Ala. 551 (1865)], the Advisory Committee considers such a procedure undesirable in many instances."
Accordingly, this cause is remanded to the Houston Circuit Court for that court to hold a hearing on the appellant's contempt citation in compliance with Rule 33.3(d), Ala. R. Crim. P. However, we wish to note that, in so holding, we do not suggest that the appellant's language was not properly deemed contempt of court. Due return shall be made to this Court within 28 days of the release of this opinion.
REMANDED WITH DIRECTIONS.
SHAW and WISE, JJ., concur. COBB, J., dissents with opinion, which BASCHAB, J., joins.
I respectfully dissent from the majority's opinion remanding this cause for the trial court to hold a hearing pursuant to Rule 33.3(d), Ala. R. Crim. P. I believe the record is sufficient to show that Ben Meredith's actions in this case constituted direct contempt under Rule 33.1(b)(1), Ala. R. Crim. P., and, therefore, a hearing was unnecessary.
Admittedly, the record in this contempt case is meager. The only evidence before us is the trial judge's order entered on the case action summary. According to the trial judge:
"[Defendant's] Att. Ben Meredith found in contempt of [c]t. for referring to the [c]ourt as `he's an asshole,' within the hearing and presence of the [c]ourt while the [c]ourt was in session. Mr. Meredith punished summarily by a fine of [$100] to be paid to the [c]ircuit [c]lerk by 4:00 p.m. today, and Atty. Meredith banned from the [c]t. for the remainder of the day. . . . Witnesses: Lt. Gary Lindsey, Ashton Ott, Matt Lamere, Carla Woodall[.]"
(C. 4.) According to the appellant in his brief on appeal, he had left the courtroom when he turned to Lt. Gary Lindsey and said, "He can be an asshole, can't he?" referring to the trial judge. The appellant claims that the trial judge, the court reporter, and another attorney were present in the courtroom, awaiting the entry of the jury in another case, while he was in the hallway referring to the judge as an "asshole." The appellant admits that the trial judge heard him and called him back into the courtroom to be held in contempt.
"`Direct Contempt' means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court's business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court's dignity and authority before the public."
Rule 33.1(b)(1), Ala. R. Crim. P. "The court may summarily find in contempt any person who commits a direct contempt. . . ." Rue 33.2(a), Ala. R. Crim. P. "No decision concerning the punishment to be imposed shall be made during the course of the proceeding at which the contempt occurs, unless prompt punishment is imperative to achieve immediate vindication of the court's dignity and authority." Rule 33.2(b), Ala. R. Crim. P. (Emphasis added.)
See also Rule 33.5, Ala. R. Crim. P. ("If the alleged contumacious conduct involves gross disrespect or a personal attack upon the character of the judge, or if the judge's conduct is so integrated with the alleged contempt that the judge contributed to or was otherwise involved in it,unless the conduct constitutes a direct contempt and prompt punishment by summary procedure is imperative under Rule 33.2(b), the citation shall be referred to another judge who shall hold a hearing to determine whether the contemnor committed the contempt charged, and, if so, to impose punishment.") (Emphasis added.)
I believe that the trial judge's order presents us with sufficient facts to support a conviction for direct contempt. Meredith's behavior, calling a judge "an asshole," was clearly insolent. The order stated that it was in the presence of the judge. The order states that the court was in session, thereby conducting business, which was clearly disturbed when Meredith called the trial judge "an asshole" within earshot of those in the courtroom.
The appellant's facts, although slightly different than those stated in order, also support a finding that he was guilty of direct contempt, rather than constructive contempt. He admits that he called the trial judge "an asshole" and that the trial judge heard him do so. The appellant also admits that there were other people present when he berated the trial judge. I believe the presence of the other people, which was not specified in the trial judge's order, but was admitted by the appellant in his brief, requires a finding that the trial court needed to take "immediate action . . . to prevent diminution of the court's dignity and authority before the public." Rule 33.1(b)(1). See also Rule 33.2(b), Ala. R. Crim. P. I also believe the contempt in this case to be more egregious because the contemptuous behavior was that of a lawyer, an officer of the court.
For the reasons above, I would affirm the judgment of the trial court.