Updating this prior entry, a reader has brought some material to my attention indicating that the matter of judicial contempt powers, particularly with respect to whether contempt is direct or indirect, is more nuanced than the statutory language would suggest. Some of the tension comes from the notion that certain powers are inherent to the judiciary, beyond the power of the legislature to regulate. From the Civil Bench Book, published by the Indiana Judicial Center:
It is the prerogative of the courts of this state and not the legislature to define the conduct that constitutes a contempt of court. Among the inherent powers of the court is that of maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business and punishing unseemly behavior. McIntire v. State, 223 N.E.2d 347 (1967). The legislature may not take away or materially impair the court’s contempt power, but the legislature does have the power to prescribe rules of practice and procedure. La Grange v. State, 153 N.E.2d 593 (1958), 69 A.L.R.2d 668. However, the contempt power may not be utilized to protect the personal or individual feelings of the judge. Grimm v. State, 162 N.E.2d 454 (1959). The courts are not limited to statutory definitions.
The distinction between direct and indirect contempt might not, therefore, be entirely statutory. The courts take the position that it is not. I do not know whether the legislature has offered a definitive opinion or what would happen if both branches fought for supremacy over the issue. In any case, according to the courts, the distinction focuses on two inquiries:
(1) whether the act stands in disregard of judicial authority, thereby threatening the integrity of the court and impeding its work and (2) whether the judge possessed immediate and personal knowledge of the contemptuous act. Nasser, 644 N.E.2d at 96. In addressing this second inquiry, the Nasser court explained:
For example, if an attorney berated a judge in front of the jurors before entering the courtroom, this would clearly disrupt the court proceedings. It would not, however, be considered direct contempt if presence in the courtroom was the determinative factor. Because knowledge is the critical issue, such an act can be summarily punished as direct contempt.
Id. at n.2. The court of appeals noted that the trial court judge did not gain full knowledge of the facts of Davidson’s contemptuous behavior until four days later. Therefore, the trial court judge did not meet the immediate personal knowledge prong of the two-part test of Hopping v. State, 637 N.E.2d 1294 (Ind. 1994) discussed in Davidson.
The distinction is an important one because an action for indirect contempt often requires the appointment of a special judge, whereas direct contempt requires the immediate action of the sitting judge. [Note: the appointment of a special judge is not called for where the case “grow[s] out of willfully resisting, hindering, delaying, or disobeying any lawful process or order of court.†Ind. Code § 34-47-3-7(b); Davidson v. State, 836 N.E.2d 1018, 1024 (Ind. Ct. App. 2005). (emphasis added)
So, which is it in the case of the Muncie attorney who filed the salacious affidavit? (The latest news report from this morning on which is here.) I’m still going to go with indirect contempt since the affidavit was written and executed outside of the knowledge of the judge, filed at a time when the judge could not and did not review it immediately, and reviewed by the judge when the court was closed and (due to the election) would be closed for another day. The element of immediacy just seems to be lacking from what I’ve read in the newspapers (admittedly a shaky source of information.) But, it’s important to note that the distinction is not solely a matter of statutory construction; but, rather, a matter where the case law has to be factored in as well.
I’m just happy this is taking place in Muncie, as many odd things seem to do, which is on the other side of the state from me.
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