Contempt: Judge Jails a Man for Making Noise

A state court judge has jailed a man for making a yawning noise in his courtroom. See here. Apparently, in Illinois, a state court judge may sentence someone who commits "contempt of court" to six months in jail. (In California, a person found guilty of contempt may be fined up to $1,000, imprisoned for up to five days, or both, for each separate act of contempt. See CCP § 1218.)

The "contempt of court" power allows judges to keep their courtrooms running smoothly. The reason this Illinois judge was able to throw the citizen in jail is because the alleged contemptuous action occurred in his immediate view and presence. No separate notice or hearing is required for "direct contempt"; indeed, according to the United States Supreme Court, "All that is required [for summary contempt] is that an order be made reciting the facts, adjudging the person guilty and prescribing the punishment.” See Arthur v. Sup.Ct. (1965) 62 C2d 404, 407; see also CCP § 1211.

In California, a lawyer’s offensive courtroom behavior may cause him or her to be in contempt. For example, courts have held that the following statements are sufficient to find someone in contempt: “This court obviously doesn't want to apply the law,” or, “You’re not my mother.” To me, these statements don't warrant any jail time. Yet, lawyers are subject to contempt and discipline for making “disrespectful” remarks about judges, even if such statements have merit. For example, courts have held that referring to a judge as a “petty”; accusing a judge of religious bias; or telling a judge his client hasn’t received a fair trial is enough to issue a finding of contempt.

Should judges have absolute power over conduct in their courtrooms? After all, the United States Supreme Court says that such power is necessary “where immediate punishment is essential to prevent demoralization of the court's authority before the public.” See Pounders v. Watson (1997) 521 U.S. 982, 988. In theory, it sounds reasonable. Many people would agree that judges ought to be able to control courtroom proceedings. After all, lawyers get paid an awful lot of money by the hour, and if one person is holding up proceedings, it costs both general taxpayers and clients money.

While the theory is sound, in reality, good judges don't need the threat of jail time or $1,000 fines to control their courtrooms. Which is better? A judge who can maintain order by the force of his words and personality, or a judge who has to use jail time to control an unarmed citizen in his courtroom? (And yes, that's a rhetorical question.)

Let us not forget: judges are public servants. They receive a good salary; lifetime medical benefits; and pensions from the very people who come to their courtrooms and who are subject to their contempt orders. They are also given several staff members who do much of the heavy lifting for them. Why should a public servant be able to throw a taxpaying citizen in jail based on a subjective interpretation of the person's non-verbal conduct? Why are courts--which are government buildings--exempt from free speech rights? Why can't a judge just ask the courtroom bailiff to remove the offending party from the court, thereby immediately ending any potential controversy?

I fear we have given our public servants far too much power. In this day and age, there are precious few judges who actually read all the documents in the cases before them. In my experience, most judges tend to rely on legal memos written by their staff. These memos purport to objectively summarize the facts and law in the tens or hundreds of pages filed by the parties' lawyers. As a result of these memos, many judges have already made up their mind about their cases prior to oral argument and do not bother to read any actual documents filed with the court. Sometimes, a judge's law clerk has even prepared a written order before the hearing. Consequently, most court appearances are either exercises in drudgery or "sucking up." With the typical large county courtroom having over thirty cases to hear in one day, rigorous debate has become impractical. There are dozens of other cases waiting; only a judge with a tremendous work ethic will read all the documents in the cases before him or her; and most motions raise procedural, not substantive, issues.

It would be more honest to put judges' law clerks--who research and write the legal memos--on the bench during oral argument, but this kind of honesty would destroy the image of judges as hard-working, caring public servants. As long as image is important to the appearance of order, law clerks will remain in the audience or jury box, silent and unassuming.

It isn't unreasonable to believe that the courts' overloaded dockets and generous staff have caused intellectually untenable conditions. For instance, a lawyer who prepares for court hearings is disfavored, because he or she may raise facts not in the law clerk's prepared memo. For example, when I've mentioned facts or law not in the judge's memo, I've had judges immediately change the subject and point to the front page of my papers and mention formatting issues that had nothing to do with the case itself. One time, a judge who didn't read the documents told me that my writing was disorganized and asked me to identify the specific page I was referring to. This deft maneuver allowed the judge to get up to speed on the spot. (As for being "disorganized," the sentence I was referring to was in bold font and couldn't be missed by anyone who had read the papers.) I've even had a judge say the wrong name of a plaintiff's supervisor in an employment case. (Did I correct the judge? Of course not. If I did, I would have given the judge an incentive to rule against my client or find me in contempt.) I have more stories--like the time a judge held me in contempt, never issued a written order, and later verbally revoked the finding of contempt--but I'll save them for another day.

There is no question that going "off-script" puts a lazy judge in a bad situation. If a lawyer raises an issue that isn't in the legal memo, the judge is clueless but has to act knowledgeable to prevent being embarrassed in front of his or her staff and the audience. Thus, a lawyer who intentionally or unintentionally reveals a judge's ignorance of the case creates problems for a judge. As a result, the lawyer who forcefully argues his client's case and disagrees with a judge is more likely to be deemed as "disrespectful" by a lazy judge than a judge who has read the papers and can use logic to refute the lawyer's arguments in open court. Therein lies the problem with allowing judges wide latitude to issue "direct contempt" orders. A good, hard-working judge who is familiar with a case probably won't need to use contempt powers against any lawyer; in contrast, a lazy judge concerned with saving face will use contempt powers to prevent being embarrassed. The moral of the story is this: the tool of contempt is used mainly by inept judges.

Amazingly, rather than checking the power of egotistical, lazy judges, the United States Supreme Court has assumed all judges are reasonable persons who can be trusted with almost absolute power. Perhaps as a result of its rosy assumption, the Court has erred on the side of giving lower-court judges more, rather than less, latitude to use contempt to maintain order. Unfortunately, the Court's rationale is flawed. The "contempt of court" power isn't necessary even for lazy judges to maintain order or to save face. A lazy but decent judge will, when presented with an issue not raised in his or her memo, defer to the other side. In other words, the lazy but honorable judge will turn to opposing counsel, who has read the documents, and expect the other lawyer to fill in the gaps. Some very wise judges don't ask any questions at all in their courtroom, making it almost impossible for a lawyer to have cause to say something out of line.

While "contempt of court" is useful to maintaining order, too often, it allows lazy judges to prevent participants from embarrassing them. Indeed, judges who don't read the papers are the ones being disrespectful to the legal process by causing lawyers to argue less forcefully, which penalizes diligence and inhibits strong debate. Surprisingly, while many people believe government workers have incentives to work as little as possible, they also believe that judges--who are government employees--are above laziness and pettiness. In the end, a judge who needs to use contempt orders and sanctions to maintain decorum probably shouldn't be a judge. Judges should use the power of contempt to prevent violence or to punish persons who intentionally violate written court orders. The real risk of public "demoralization" comes from out-of-control judges who abuse their contempt powers.

Bonus: here's an interesting piece on Judge Manuel Real aka Manny Real, who once "jailed five antiwar spectators for failing to stand as he left the courtroom." Perhaps Judge Real is Southern California's version of NoCal's Judge Samuel Conti. Judge Conti once sanctioned me around ten thousand dollars without bothering to give me a court hearing. When I called to ask for a hearing, he and/or his staff immediately sent the file back to state court, where he thought the case belonged (the sanctions were related to his belief that I should have kept the case in state court). The party that requested the sanctions later declared bankruptcy. I love karma.