In Re Joseph Brown , 470 S.W.3d 433 ( 2015 )

IN THE COURT OF APPEALS OF TENNESSEE
AT MEMPHIS
February 25, 2015 Session
IN RE: JOSEPH BROWN
Direct Appeal from the Juvenile Court for Shelby County
No. S9206 Curtis S. Person, Jr., Judge
No. W2014-00825-COA-R3-JV- Filed March 23, 2015
An attorney was summarily punished for direct criminal contempt. The attorney appeals,
alleging numerous procedural errors and claiming that his actions did not rise to the level
of contemptuous behavior. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
and Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
Andre C. Wharton and Alexander Wharton, Memphis, Tennessee, for the appellant,
Joesph Brown.
Herbert H. Slatery, III, Attorney General and Reporter, Andree S. Blumstein, Solicitor
General and Kathryn A. Baker, Assistant Attorney General, for the appellee, State of
Tennessee.
OPINION
I. FACTS & PROCEDURAL HISTORY
The basis of this appeal is a finding of contempt made on March 24, 2014, by
Shelby County Juvenile Court Magistrate Harold Horne. On that date, a litigant appeared
pro se for a hearing before Magistrate Horne. Magistrate Horne determined that no
notice of the hearing had been provided to the opposing party or counsel and therefore
continued the hearing for one month. Later that same day, attorney and former judge
Joseph Brown appeared before Magistrate Horne and addressed the court on behalf of the
aforementioned litigant. At the outset, Mr. Brown indicated his awareness that the
hearing had already been continued until a later date. Nevertheless, Mr. Brown insisted
that the case against the litigant should be “dismissed flat out” due to deficiencies he
perceived in the record, and he claimed that notice to the opposing party was not
necessary prior to dismissal. Magistrate Horne reiterated that the matter would be
resolved at the April 24 hearing. The following exchange ensued:
MR. BROWN: If it pleases the tribunal, I will file a Petition for
Habeas Corpus and close this place down like I did
before if you make her come back here one more time.
THE COURT: Mr. Brown, you are very close to finding yourself in
contempt.
MR. BROWN: Excuse me, on what authority do you sit by the way?
As a former judge here, we have a rule in the
Thirtieth Judicial District. It says every single
Magistrate Referee has to be unanimously approved by
every Circuit, Chancery, and Criminal Court Judge. I
don‟t recall that your name‟s ever been submitted, sir.
This tribunal on a General Sessions Court‟s
authority is insufficient to establish you. Therefore I
challenge your authority to hear it.
And by the way, what is that, Magistrate, sir,
with due respect.
THE COURT: Mr. Brown, the Court finds you in contempt.
MR. BROWN: Here‟s ten dollars. That‟s all you‟ve got on me.
THE COURT: I sentence you to twenty-four day -- for twenty-four
hours in the Shelby County jail.
MR. BROWN: You‟re out of it. The maximum---
THE COURT: You may have a seat.
MR. BROWN: I‟m not. Ten dollars. That‟s all you‟ve got. Twenty.
Take the two.
THE COURT: Get the bailiffs.
MR. BROWN: Go find the law or I‟m reporting you to the Court of
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Judiciary. I‟ll have you charged with violation of
process. Now you want to get into this, let‟s get into it.
This sorry operation needs to stop.
THE COURT: Twenty-four hours in the Shelby County jail for
contempt. You may have a seat.
MR. BROWN: Excuse me.
THE COURT: Do you wish to have another twenty-four hours?
MR. BROWN: If you try to do this you need to straighten yourself up
and you cite your authority.
THE COURT: Do you wish to have a second day, Mr. Brown?
MR. BROWN: What did you say?
THE COURT: Do you wish to have a second day?
MR. BROWN: A second date?
THE COURT: Day.
MR. BROWN: Day?
THE COURT: Yes, sir.
MR. BROWN: I tell you what. You cite the authority. You find it. I
looked it up before I came in here. You have ten
dollars maximum contempt jurisdiction. Now you
jump in here.
THE COURT: That‟s two days in the Shelby County jail. Do you
wish to continue?
MR. BROWN: Okay. Okay, I‟ll tell you what. I‟ll be out of here very
shortly on a Petition for Habeas Corpus, and I‟ll bring
up all these problems, and guess what, you might not
be operating tomorrow.
3
THE COURT: Have a seat, Sir.
MR. BROWN: Okay, as a courtesy to the officers, I‟ll do that. Mmm-
huh.
THE COURT: Alright.
MR. BROWN: It‟s a circus, sir.
THE COURT: That‟s three days.
MR. BROWN: You can do all you want.
THE COURT: Four days.
MR. BROWN: You don‟t have the jurisdiction I had to do it. You‟ve
got to be up above a trial judge. You‟ve got ten
dollars.1
THE COURT: Five days.
MR. BROWN: I offered you ten dollars.
At that point, Mr. Brown was physically removed from the courtroom and escorted to the
Shelby County Jail.
Later that afternoon, Mr. Brown‟s attorneys filed a motion requesting that the
juvenile court set bail for Mr. Brown or release him on his own recognizance. This
motion was denied by order of Juvenile Court Judge Curtis Person. Counsel for Mr.
Brown then filed a “Motion Appealing Juvenile Court Finding of Contempt and Denial of
1
Despite Mr. Brown‟s challenges to the authority of Magistrate Horne in open court, he does not raise any
issue on appeal regarding Magistrate Horne‟s authority. He does not suggest that a juvenile court
magistrate lacks authority to order imprisonment of a contemner, nor does he claim that Magistrate Horne
was never “approved” by the other judges in the district, as he alleged in court on the date of the incident.
We note, however, that the juvenile court “may punish a person for contempt of court for disobeying an
order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of
its orders by imposing a fine or imprisonment[.]” Tenn. Code Ann. § 37-1-158. See also State v. Ream,
No. M2007-00264-COA-R3-JV, 2008 WL 4367457, at *2 n.2 (Tenn. Ct. App. Sept. 18, 2008) (noting
that the juvenile court has “the same authority as circuit or chancery court” with regard to contempt). In
addition, a juvenile court magistrate “has the powers of a trial judge” in the conduct of proceedings.
Tenn. Code Ann. § 37-1-107(c).
4
Appeal Bond” in the Criminal Court of Shelby County. Criminal Court Judge James
Beasley entered an order “granting” the appeal from the juvenile court‟s finding of
contempt and releasing Mr. Brown on his own recognizance pending a hearing of the
“appeal.”
The following day, March 25, 2014, Magistrate Horne entered written “Findings
and Recommendations” regarding the matter of Mr. Brown‟s contempt. The written
findings detailed the court‟s encounter with the unrepresented litigant earlier in the day
and the fact that the court reset the matter for April 24. The findings then describe the
incident with Mr. Brown as follows:
After the passage of some considerable time Mr. Joseph Brown
came forward stating that he wished to address the Court on behalf of [the
litigant]. The bottom line of his lengthy diatribe was that he wanted the case
dismissed and he did not agree that the petitioner‟s counsel was entitled to
notice of the hearing.
During the course of Mr. Brown‟s remarks it became clear that he
was entering on a course designed to disrupt and denigrate the court
proceedings as his comments became progressively more disrespectful and
it appeared that he was willfully and intentionally baiting the court. The
manner and demeanor of his person was as one who sought to foment a riot
in the Courtroom and he was addressing the audience more so than the
Court.
At this point Mr. Brown was admonished to stop and that his actions
amounted to contempt. He continued his tirade and indulged in willful
misconduct clearly intended to embarrass, hinder and obstruct the
administration of justice; and to derogate the court‟s authority and dignity,
thereby bringing administration of law into disrepute. Additionally, the
Court was of the opinion that Mr. Brown was attempting to provoke a riot
in a courtroom which was filled with over 70 citizens and that a failure to
act quickly would disrupt the orderly progress of the Court‟s hearings. (It
should be noted that while a recording of the proceedings will show the
words used and their tone, the recording will not show Mr. Brown‟s
directing some of his invective toward the “audience” rather than the
Magistrate).
The Court informed Mr. Brown that he was in contempt and that he
would be sentenced to 24 hours confinement and ordered the Bailiff[s] to
remove him from the courtroom. Thereafter Mr. Brown continued his
willful misconduct and the sentence was increased to 2 days. He at one
point pulled out one or two ten ($10.00) bills and offered the payment for
his actions stating that he had looked up the Court‟s authority in contempt
5
cases before coming to the court and the limit of the Court‟s authority was
$10.00. As he continued his ranting the sentence was progressively
increased to 3 days, then 4 days, then 5 days at which point the bailiffs
managed to remove him from the courtroom.
The Court finds that Mr. Joseph Brown‟s conduct was a willful,
deliberate, orchestrated event designed to show his disrespect for the
judicial system and that his conduct amounted to an actual, direct,
obstruction of, and interference with, the administration of justice. That he
was offered an opportunity to stop his charade and he refused to regain
control of himself, engaged in escalating confrontation which required that
he be physically removed from courtroom.
Magistrate Horne‟s written findings further stated and recommended that “Mr. Joseph
Brown is in direct criminal contempt of this Court and that he be committed to the Sheriff
of Shelby County to be confined for a period of five (5) days.” These findings and
recommendations were confirmed as an order of the juvenile court by Judge Person on
March 25, 2014.
The judges of the Criminal Court of Shelby County requested that a special judge
be assigned to hear the “appeal” of Mr. Brown‟s contempt matter due to having
previously served with Mr. Brown as “a fellow judge.” The Tennessee Supreme Court
assigned the case to the Honorable Paul G. Summers, Senior Judge. Judge Summers
requested briefing as to whether the appeal from the Juvenile Court‟s finding of contempt
should proceed in Criminal Court or the Court of Appeals pursuant to the Tennessee
Rules of Appellate Procedure. Thereafter, Mr. Brown filed a notice of appeal to this
Court (still within thirty days of the Juvenile Court‟s contempt finding).2 Judge Summers
eventually concluded that Mr. Brown‟s “appeal” to criminal court was improvidently
filed, and he entered an order that “remanded and transferred” the matter back to juvenile
2
“Contempt proceedings are sui generis and are incidental to the case out of which they arise.” Baker v.
State, 417 S.W.3d 428, 435 (citing Doe v. Bd. of Prof'l Responsibility, 104 S.W.3d 465, 474 (Tenn.
2003)). Accordingly, “[a] judgment of contempt fixing punishment is a final judgment from which an
appeal will lie.” Hall v. Hall, 772 S.W.2d 432, 436 (Tenn.Ct.App.1989) (citing State v. Green, 689
S.W.2d 189 (Tenn. Cr. App. 1984)). The judgment of contempt becomes final “upon entry of the
judgment imposing a punishment therefore.” State ex rel. Garrison v. Scobey, No. W2007-02367-COA-
R3-JV, 2008 WL 4648359, at *4 (Tenn. Ct. App. Oct. 22, 2008) (citing Green, 689 S.W.2d at 190); see
also Rose v. Rose, No. E2005-01833-COA-R3-CV, 2006 WL 1132086, at *4 (Tenn. Ct. App. Apr. 27,
2006) (“a judgment of contempt, summary or otherwise becomes final upon the entering of punishment
therefor”); Bailey v. Crum, 183 S.W.3d 383, 387 (Tenn. Ct. App. 2005). “It matters not that the
proceedings out of which the contempt arose are not complete.” Moody v. Hutchison, 159 S.W.3d 15, 31
(Tenn. Ct. App. 2004) (citing Green, 689 S.W.2d at 190). An order that imposes punishment for
contempt “is a final appealable order in its own right, even though the proceedings in which the contempt
arose are ongoing.” Coffey v. Coffey, No. E2012-00143-COA-R3-CV, 2013 WL 1279410, at *5 (Tenn.
Ct. App. 2013) (citing Bailey v. Crum, 183 S.W.3d 383, 387 (Tenn. Ct. App. 2005)).
6
court. The record before us contains the technical record, transcripts from the
proceedings in juvenile court, an audio recording of the proceedings in juvenile court, as
well as those from the proceedings in criminal court.
II. ISSUES PRESENTED
Mr. Brown presents the following issues for review on appeal, which are quoted
from his brief:
1. Whether the lower court erred in not affording due process and properly
citing Appellant with contempt because the Court was so intertwined
and embroiled with the matter that it should have been disqualified from
presiding over the matter?
2. Whether the lower court properly followed Tennessee Rule of Criminal
Procedure 42(a) when it did not state how Appellant was in contempt
during the proceedings, nor include sufficient basis in its disposition of
the matter?
3. Whether the lower court erred in finding that Appellant‟s zealous
advocacy for his client amounted to contemptuous behavior?
The Tennessee Attorney General‟s office filed a brief on appeal as attorney of record for
the State of Tennessee, urging this Court to affirm the juvenile court‟s finding of
contempt. For the following reasons, we affirm the decision of the juvenile court and
remand for further proceedings.
III. STANDARD OF REVIEW
“„A determination of contempt is within the sound discretion of the trial court,
subject to the provisions of the law.‟” Daniels v. Grimac, 342 S.W.3d 511, 517 (Tenn.
Ct. App. 2010) (quoting Watkins, ex rel. Duncan v. Methodist Healthcare Sys., No.
W2008-01349-COA-R3-CV, 2009 WL 1328898, at *3 (Tenn. Ct. App. May 13, 2009)).
Because a trial court‟s use of its contempt power is discretionary, appellate courts review
a trial court‟s contempt citation using the abuse of discretion standard. Outdoor Mgmt.,
LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007). “An abuse of discretion
occurs when the trial court causes an injustice by applying an incorrect legal standard,
reaches an illogical result, resolves the case on a clearly erroneous assessment of the
evidence, or relies on reasoning that causes an injustice.” Gonsewski v. Gonsewski, 350
S.W.3d 99, 105 (Tenn. 2011) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166,
7
176 (Tenn. 2011); Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). The
abuse of discretion standard
does not permit an appellate court to substitute its judgment for that of the
trial court, but “„reflects an awareness that the decision being reviewed
involved a choice among several acceptable alternatives, and thus envisions
a less rigorous review of the lower court‟s decision and a decreased
likelihood that the decision will be reversed on appeal.‟”
Id. (quoting Henderson, 318 S.W.3d at 335 (quoting Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 525 (Tenn. 2010))).
IV. DISCUSSION
“[T]he inherent power of courts to punish contemptuous conduct has long been
regarded as essential to the protection and existence of the courts.” Black v. Blount, 938
S.W.2d 394, 397-98 (Tenn. 1996) (citing State v. Galloway, 45 Tenn. 326, 331 (1868)).
“The power of courts to punish for contempt is of immemorial antiquity,
and is inherent in all courts as a necessary power belonging to them in order
to enable them to accomplish the purposes for which they were designed;
that is, the orderly trial and decision of causes, the enforcement of public
order, the prevention of interferences with their proceedings, and the
enforcement of the due respect belonging to them as institutions of the
country.”
Baker v. State, 417 S.W.3d 428, 435 (Tenn. 2013) (quoting Graham v. Williamson, 128
Tenn. 720, 164 S.W. 781, 782 (1914)). “The court‟s power to punish parties for
courtroom misconduct is „absolutely essential to the smooth functioning of the judicial
system.‟” Parris v. Parris, No. M2006-02068-COA-R3-CV, 2007 WL 2713723, at *5
(Tenn. Ct. App. Sept. 18, 2007) (quoting Dargil v. Terminix Int’l Co., 23 S.W.3d 342,
344 (Tenn. Ct. App. 2000)).
In Tennessee, conduct punishable as contempt is delineated in Tennessee Code
Annotated section 29-9-102, which provides:
The power of the several courts to issue attachments, and inflict
punishments for contempts of court, shall not be construed to extend to any
except the following cases:
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(1) The willful misbehavior of any person in the presence of the
court, or so near thereto as to obstruct the administration of justice;
(2) The willful misbehavior of any of the officers of such courts, in
their official transactions;
(3) The willful disobedience or resistance of any officer of the such
courts, party, juror, witness, or any other person, to any lawful writ,
process, order, rule, decree, or command of such courts;
(4) Abuse of, or unlawful interference with, the process or
proceedings of the court;
(5) Willfully conversing with jurors in relation to the merits of the
cause in the trial of which they are engaged, or otherwise tampering with
them; or
(6) Any other act or omission declared a contempt by law.
Although “„acts constituting contempt cover a wide range,‟” the “„most familiar forms of
contempt are found in acts which hinder, delay, and obstruct the administration of
justice[.]‟” Black, 938 S.W.2d at 399 (quoting Winfree v. State, 175 Tenn. 427, 135
S.W.2d 454 (1940)).
Contempt can be either civil or criminal in nature. Black, 938 S.W.2d at 398.
“Civil contempt occurs when a person refuses or fails to comply with a court order and a
contempt action is brought to enforce private rights.” Id. (citing Robinson v. Air Draulics
Eng’g Co., 214 Tenn. 30, 37, 377 S.W.2d 908, 911 (1964)). Conversely, criminal
contempt is “intended to preserve the power and vindicate the dignity and authority of the
law, and the court as an organ of society.” Id. (citing State ex rel. Anderson v.
Daugherty, 137 Tenn. 125, 127, 191 S.W. 974 (1917); Gunn v. S. Bell Tel. & Tel. Co.,
201 Tenn. 38, 41-42, 296 S.W.2d 843, 844-45 (1956)). Although criminal contempt may
arise in the course of private civil litigation, criminal contempt proceedings “„in a very
true sense raise an issue between the public and the accused.‟” Id. (quoting Daugherty,
191 S.W. at 974). In punishing criminal contempt, “the Judiciary is sanctioning conduct
that violates specific duties imposed by the court itself, arising directly from the parties‟
participation in judicial proceedings.” Baker, 417 S.W.3d at 438 (citations omitted).
This appeal involves criminal contempt.
Contempt can be further classified as direct or indirect depending on whether the
misbehavior occurred in the court‟s presence. State v. Beeler, 387 S.W.3d 511, 520
(Tenn. 2012).
This classification is important in criminal contempt cases because
Tennessee Rule of Criminal Procedure 42 allows for a summary proceeding
if the contemptuous conduct occurs before the court; but if not, certain
9
procedural protections must be observed, including notice, a hearing, and
recusal if the contempt charged involves disrespect to or criticism of the
judge.
Id. (citing Tenn. R. Crim. P. 42). Thus, direct and indirect contempt differ “in the
minimal procedure that will satisfy the requirements of due process in each case.” Black,
938 S.W.2d at 398. Direct contempt is based on acts committed in the presence of the
court and may be punished summarily. Id. “Tennessee courts have held that direct acts
of contempt include acts committed in the presence of the court that are disrespectful,
unreasonable, or contemptuous; use of violent or loud language or noises; or „turbulent‟
conduct that disrupts the proceedings.” Watkins ex rel. Duncan v. Methodist Healthcare
Sys., W2008-013490COA-R3-CV, 2009 WL 1328898, at *6 (Tenn. Ct. App. May 13,
2009). Indirect contempt occurs outside the presence of the court and may be punished
only after the accused has been given notice and an opportunity to respond to the charges
at a hearing. Black, 938 S.W.2d at 398 (citing State v. Maddux, 571 S.W.2d 819, 821
(Tenn. 1978)). Courts imposing criminal contempt sanctions for acts not committed in
their presence must comply with more stringent procedural standards. State v. Patty, No.
03C01-9812-CC-00430, 1999 WL 627395, at *4 (Tenn. Crim. App. Aug. 19, 1999).
Specifically, at the time of the proceedings below, Tennessee Rule of Criminal Procedure
42 provided the following with regard to criminal contempt:
(a) Summary Disposition. A judge may summarily punish a person
who commits criminal contempt in the judge‟s presence if the judge
certifies that he or she saw or heard the conduct constituting the contempt.
The contempt order shall recite the facts, be signed by the judge, and
entered in the record.
(b) Disposition on Notice and Hearing. A criminal contempt shall
be prosecuted on notice, except as provided in subdivision (a) of this rule.
(1) Content of Notice. The criminal contempt notice shall:
(A) state the time and place of the hearing;
(B) allow the defendant a reasonable time to prepare a
defense; and
(C) state the essential facts constituting the criminal contempt
charged and describe it as such.
(2) Form of Notice. The judge shall give the notice orally in open
court in the presence of the defendant or, on application of the district
attorney general or of an attorney appointed by the court for that purpose,
by a show cause or arrest order.
(3) Release on Bail. The criminal contempt defendant is entitled to
admission to bail as provided in these rules.
(4) Disqualification of Judge. When the contempt charged involves
10
disrespect to or criticism of a judge, that judge is disqualified from
presiding at the hearing, except with the defendant‟s consent.
(5) Punishment Order. If the court finds the defendant guilty of
contempt, the court shall enter an order setting the punishment.
Tenn. R. Crim. P. 42 (2013) (emphasis added).3 “A punishment imposed summarily is
one imposed „without ceremony or delay.‟” Watkins, 2009 WL 1328898, at *7 (quoting
Black’s Law Dictionary 1435 (6th ed. 1990)).
“Rule 42(a) is permissive in nature.” Watkins, 2009 WL 1328898, at *5.
Accordingly, criminal contempt may be adjudicated summarily if the judge certifies that
he or she saw or heard the conduct and that it was committed in the presence of the court,
or it may be adjudicated by judgment after notice and a hearing. State v. Provencio, No.
E2005-01253-CCA-R3-CD, 2005 WL 3088078, at *2 (Tenn. Crim. App. Nov. 18, 2005).
A trial judge has discretion to punish criminal contempt by summary disposition if the
judge certifies that the conduct constituting contempt was committed in the presence of
the court. State v. Smith, No. W1999-00814-CCA-R3-CD, 2000 WL 1664280, at *6
(Tenn. Crim. App. Oct. 23, 2000). “The determination of what action constitutes
contempt necessitating immediate summary disposition rests within the discretion of the
trial judge.” Id. “Unfortunately, our courts are occasionally subjected to genuinely
disruptive conduct.” Beeler, 387 S.W.3d at 520 n.5. “In such cases, exercise of the
summary contempt power may be necessary to restore order, but Rule 42(a) presupposes
that the observed conduct is contemptuous; if the court has any doubt on this point, a
summary proceeding is not the appropriate means for adjudicating the matter.” Id.
Summary punishment “is reserved for those circumstances in which it is essential”
because it “departs, often dramatically, from traditional notions of due process that are
the hallmarks of criminal justice.” State v. Turner, 914 S.W.2d 951, 957 (Tenn. Crim.
App. 1995). “As a result, courts universally agree that summary contempt powers should
be used sparingly, and even then only in cases of „exceptional circumstances.‟” Id.
(quoting Harris v. United States, 382 U.S. 162, 164-65 (1965)). Determining whether
exceptional circumstances exist “is generally left to the sound discretion of the trial
court.” Watkins, at *6; see also Provencio, 2005 WL 3088078, at *3 (“the determination
of what constitutes an exceptional circumstance [is left] to the discretion of the trial
court”).
The courts‟ summary contempt authority “must be viewed in light of its express
purpose and function,” which is “to punish certain conduct when necessary to vindicate
3
Rule 42(b) was amended effective July 1, 2014, to replace the word “defendant” with the word “alleged
contemner,” to delete reference to a “show cause order,” and to add “an attorney representing a party in
the case” to the list of those who may apply for issuance of a notice of criminal contempt pursuant to
(b)(2). These changes are not material to the issues on appeal.
11
the dignity and authority of the court.” Turner, 914 S.W.2d at 956. “Summary contempt
is appropriate when there is a need to act swiftly and firmly to prevent contumacious
conduct from disrupting the orderly progress of a . . . trial . . . . [and] may be necessary to
restore order.” Beeler, 387 S.W.3d at 520 n.5 (internal quotations omitted).
Mr. Brown‟s first issue on appeal is whether Magistrate Horne proceeded
inappropriately when finding him in contempt “because the court‟s direct authority was
so intertwined with the matter that the court should have applied Tennessee Rule of
Criminal Procedure 42(b).” Mr. Brown contends that this case involves indirect
contempt and claims that the magistrate should have afforded him all of the procedural
protections set forth in Rule 42(b), including notice of the charge of contempt and a
separate hearing before a different judge with either testimony from the magistrate or a
review of the recording of the incident.
Despite Mr. Brown‟s insistence to the contrary, this case clearly involves direct
criminal contempt “based on acts committed in the presence of the court.” Black, 938
S.W.2d at 398. Rule 42(a) governs the manner by which a judge may summarily punish
a person who commits criminal contempt in the judge‟s presence. “The procedures
governing prosecutions of indirect criminal contempt . . . are outlined in Rule 42(b).” Id.
(emphasis added). “[A] trial judge is not disqualified from summary proceedings under
Rule 42(a) involving acts of direct contempt.” Watkins, 2009 WL 1328898, at *8. The
subpart of Rule 42(b) that “specifically disqualifies the trial judge from presiding does
not apply to direct criminal contempts.” Turner, 914 S.W.2d at 959 n.13.
In this case, we cannot say that the magistrate abused his discretion in concluding
that exceptional circumstances existed to warrant summarily punishing Mr. Brown for
direct criminal contempt. The conduct occurred in the presence of the judge and
constituted “willful misbehavior . . . in the presence of the court, or so near thereto as to
obstruct the administration of justice,” within the meaning of Tennessee Code Annotated
section 29-9-102(1). “Clearly, a trial judge has the authority to punish direct contempt
summarily when necessary to protect the authority and integrity of the court and to
prevent obstruction of the administration of justice.” Watkins, 2009 WL 1328898, at *5.
“Acts of willful disobedience or disrespectful conduct, by their nature, pose the risk of
obstructing the administration of justice.” Turner, 914 S.W.2d at 958. Exceptional
circumstances justifying summary contempt “certainly include acts threatening the judge
or disrupting a hearing or obstructing court proceedings, or other unusual situations . . .
where instant action is necessary to protect the judicial institution itself.” Id. at 957
(internal quotations omitted). Some factors for consideration are “the reasonably
expected reactions of those in the courtroom, the manner in which the remarks are
delivered, the delay in the proceedings caused by a disrespectful outburst, and the failure
to heed explicit directives of the court.” Id. at 958. Here, Mr. Brown expressed clear
12
disrespect for the magistrate‟s ruling that the case would be heard at a later date and
threatened to “close this place down like I did before if you make her come back here one
more time.” When the magistrate warned Mr. Brown that he was close to being held in
contempt, Mr. Brown addressed the magistrate in a condescending manner and
challenged the magistrate‟s authority. The magistrate found it “clear that [Mr. Brown]
was entering on a course designed to disrupt and denigrate the court proceedings as his
comments became progressively more disrespectful and it appeared that he was willfully
and intentionally baiting the court,” with a manner and demeanor of “one who sought to
foment a riot in the Courtroom . . . addressing the audience more so than the Court.” The
magistrate found that Mr. Brown “indulged in willful misconduct clearly intended to
embarrass, hinder and obstruct the administration of justice; and to derogate the court‟s
authority and dignity, thereby bringing administration of law into disrepute.” The
magistrate specifically noted that the courtroom “was filled with over 70 citizens and that
a failure to act quickly would disrupt the orderly progress of the Court‟s hearings.”
According to the magistrate, Mr. Brown was “directing some of his invective toward the
„audience‟ rather than the Magistrate.” Mr. Brown produced ten-dollar bills as payment
for his actions and claimed that the magistrate had no authority to impose additional
punishment, adding, “I looked it up before I came in here.” When the magistrate said,
“You may have a seat,” Mr. Brown defiantly responded, “I‟m not.” Mr. Brown
threatened to report the magistrate to the Court of Judiciary and have him charged with
violation of process. He referred to the court as a “sorry operation” and a “circus” and
told the magistrate to “straighten yourself up.”4 Mr. Brown was eventually removed
from the courtroom by the bailiffs.
Mr. Brown argues on appeal that his conduct did not rise to the level of
contemptuous behavior and that he was simply “respectfully and zealously” advocating
for his client without obstructing the administration of justice. We respectfully disagree.
“„Court proceedings are to be conducted in a civil and dignified manner, and when one
strays from that course, their conduct risks obstructing the administration of justice.‟”
Parris, 2007 WL 2713723, at *6 (quoting Provencio, 2005 WL 3088078, at *2). We find
the circumstances of this case comparable to those in Turner. In that case, an attorney
began “arguing with the Court in a disrespectful and loud voice” after an unfavorable
ruling. Turner, 914 S.W.2d at 954. The trial judge urged the attorney to calm down, and
the attorney responded by saying, “don‟t you raise your voice to me.” Id. The trial judge
found the attorney in summary contempt for his outburst and assessed a $50 fine and ten
days in jail. The exchange escalated from that point, with the attorney commenting in a
loud and disrespectful voice, “I don‟t care what you do. Send me to jail”; “I am not going
to jail”; “You think you are powerful on that bench, send me to jail”; “You are not going
4
We have the benefit of an audio recording of the incident in the record on appeal, and our
review of the recording indicates that the magistrate remained calm and professional throughout
the exchange.
13
to have anything to do with any of my cases. I am not afraid of you or your contempts.”
Id. The trial court ultimately entered three judgments of contempt against the attorney.
On appeal, the court of criminal appeals recognized that there are competing interests at
stake when a contemner is counsel for a litigant in the underlying proceedings. Id. at
958. In that situation,
[A court has a] duty to safeguard two indispensable conditions to the fair
administration of criminal justice: (1) counsel must be protected in the right
of an accused to “fearless, vigorous and effective” advocacy, no matter how
unpopular the cause in which it is employed; (2) equally so will this Court
“protect the processes of orderly trial, which is the supreme object of the
lawyer‟s calling.”
Id. (quoting Offutt v. United States, 348 U.S. 11, 13 (1954)). It is “„essential to a fair
administration of justice that lawyers be able to make honest good-faith efforts to present
their clients‟ cases.‟” Id. (quoting In re McConnell, 370 U.S. 230, 236 (1962)). Still, the
court ultimately affirmed the trial judge‟s findings that the attorney engaged in willful
misbehavior in the presence of the court, and it upheld the three judgments of contempt:
The record reflects counsel‟s distemper in response to a ruling of the trial
judge and his apparent refusal to gain control of himself. It further reflects
an escalating confrontation in which appellant had to be physically
removed from the courtroom. The conduct resulted not only in the
temporary delay of the trial for purposes of removing the jury, but also in
the mistrial of the proceedings. We have no difficulty concluding that
appellant‟s conduct was willful and that its effect obstructed the
administration of justice. Given this direct confrontation with the trial judge
and this display of boisterous conduct which required removal from the
courtroom, we find that the trial court did not abuse its discretion in
invoking summary contempt procedures.
Turner, 914 S.W.2d at 961.
This case is also analogous to State v. Whetstone, No. E2010-02333-CCA-R3-CO,
2011 WL 5147795 (Tenn. Crim. App. Oct. 31, 2011), where another attorney was held in
direct criminal contempt for disruptive conduct. The attorney interrupted the court‟s
proceedings to complain about various matters such as the delay in the start of his
hearing. The attorney was “angry, contentious and threatening” and “basically lost his
temper to the point he threatened” the judge with an ethics complaint. Id. at *5. During
the course of the attorney‟s “temper tantrum,” the judge summarily found him in
contempt and imposed three ten-day periods of confinement, to run consecutively. Id. at
14
*11. On appeal, the Tennessee Court of Criminal Appeals affirmed the summary finding
of direct criminal contempt. See also In re Bowling, No. E2007-00262-COA-R3-JV,
2007 WL 2780378, at *5 (Tenn. Ct. App. Sept. 25, 2007) (affirming a finding of direct
criminal contempt against an attorney who questioned a new judge‟s experience in
juvenile court and impugned the judge‟s character during a heated exchange, repeatedly
raising her voice to talk over the judge and refusing to accept the judge‟s given
explanation).
The Tennessee Supreme Court has recognized that additional considerations come
into play when an attorney behaves disrespectfully in court:
[W]e explicitly hold that criminal contempt of court which obstructs the
administration of justice includes all willful misconduct which embarrasses,
hinders, or obstructs a court in its administration of justice or derogates the
court‟s authority or dignity, thereby bringing the administration of law into
disrepute. We also emphasize that disrespectful conduct by an attorney has
a greater impact upon the dignity of a court than does disrespectful conduct
of a lay person. Public respect for the law derives in large measure from
the image which the administration of justice presents. Lawyers play an
integral role in the administration of justice and, as such, their conduct can
have a great influence upon the extent to which the proceedings are
perceived as fair and dignified by jurors, defendants, witnesses, and
spectators. Accordingly, a lawyer‟s allegations of inequity and unfairness
are uniquely denigrating to the dignity of the proceedings. See generally
Matter of Campolongo, 495 Pa. 627, 435 A.2d 581 (1981).
Black, 938 S.W.2d at 401.
On appeal following a finding of criminal contempt, “the defendant must
overcome the presumption of guilt by demonstrating that the evidence preponderates
against the trial court‟s findings.” Daniels, 342 S.W.3d at 517 (citing Watkins, 2009 WL
1328898, at *3).
We will not disturb a verdict of guilt for lack of sufficient evidence unless
the facts contained in the record and any inferences which may be drawn
from the facts are insufficient, as a matter of law, for a rational trier of fact
to find the defendant guilty beyond a reasonable doubt.
Black, 938 S.W.2d at 399 (citing Daugherty, 137 Tenn. at 127, 191 S.W. at 974).
After carefully reviewing the record, we find that the evidence does not
15
preponderate against the trial court‟s findings, and the trial court did not abuse its
discretion in exercising its permissive discretionary authority to summarily punish Mr.
Brown for direct criminal contempt. See Watkins, 2009 WL 1328898, at *5. The
magistrate did not apply an incorrect legal standard, reach an illogical result, resolve the
case on a clearly erroneous assessment of the evidence, or rely on reasoning that caused
an injustice. See Gonsewski, 350 S.W.3d at 105 (defining an abuse of discretion). The
imposition of summary punishment was justified given Mr. Brown‟s boisterous conduct
in the courtroom and his failure to obey the trial court‟s directives. The magistrate was
within his discretion in finding that these were exceptional circumstances justifying the
extraordinary remedy of summary punishment. Here, summary punishment was in order,
and the magistrate did not err or otherwise violate Mr. Brown‟s due process rights by the
procedure employed.5
Mr. Brown alternatively argues on appeal that even if Rule 42(a) is applicable to
this case, the magistrate failed to follow “proper procedure” under Rule 42(a), which
provides:
Summary Disposition. A judge may summarily punish a person who
commits criminal contempt in the judge‟s presence if the judge certifies
that he or she saw or heard the conduct constituting the contempt. The
contempt order shall recite the facts, be signed by the judge, and entered in
the record.
Mr. Brown complains that the magistrate did not enter a written order reciting the facts
regarding the finding of contempt until the day after the March 24 incident. The juvenile
court issued a “mittimus” to the Sheriff of Shelby County on March 24, commanding the
Sheriff to confine Mr. Brown in the county jail for five days because he had been found
guilty of “contempt committed in the presence of the court.” However, the magistrate‟s
written findings and recommendations were not issued or approved by the juvenile court
judge until March 25. Mr. Brown seems to argue that he could not be incarcerated for
direct criminal contempt until a written order was drafted and entered in the record
setting forth in detail the reasons for the finding of contempt. We respectfully disagree.
Rule 42(a) clearly states that a judge may “summarily punish” one who commits criminal
contempt in the judge‟s presence if the judge certifies that he saw or heard the
contemptuous conduct. Although Rule 42(a) requires the entry of a written order reciting
the facts, it does not state that such an order must be entered in the record before the
5
On appeal, Mr. Brown relies heavily on the Tennessee Supreme Court‟s decision in State v. Green, 783
S.W.2d 548 (Tenn. 1990), where the court reversed five findings of direct criminal contempt made by a
trial judge who had a history of conflict with the defendant-attorney, including a pending contempt charge
in a separate case and a complaint filed by the judge against the attorney before the Board of Professional
Responsibility. Green is distinguishable from the case at bar.
16
judge can summarily punish the contemner. “A punishment imposed summarily is one
imposed „without ceremony or delay.‟” Watkins, 2009 WL 1328898, at *7 (quoting
Black’s Law Dictionary 1435 (6th ed. 1990)). “A summary proceeding is a „[s]hort,
concise, and immediate proceeding‟ and a summary process is „[s]uch as is immediate or
instantaneous, in distinction from the ordinary course, by emanating and taking effect
without intermediate applications or delays.‟” Id. Considering that summary contempt is
appropriate “when there is a need to „act swiftly,‟” Beeler, 387 S.W.3d at 520 n.5
(citation omitted), we reject the notion that a trial judge must halt the proceeding in order
to draft and enter a written order before the contemner can be punished.
Tennessee courts have declined to require strict compliance with Rule 42(a)‟s
requirements for a written order. In State v. Johnston, No. E2002-02028-CCA-R3-CD,
2003 WL 23094414, at *4-5 (Tenn. Crim. App. Dec. 30, 2003), the trial judge found a
non-party in contempt and entered a handwritten order on a warrant for a party, simply
stating that the non-party was found in contempt for perpetrating a fraud on the court and
therefore sentenced to ten days in jail to be served immediately. The Tennessee Court of
Criminal Appeals found this “skeletal order” was “deficient under Rule 42(a)” because it
failed to address the factual basis for the contempt and failed to indicate whether the
judge saw or heard the contemptuous conduct or whether such conduct took place in the
court‟s presence. Id. at *4. That being said, however, the court was “not compelled to
dismiss the proceedings altogether,” as the non-party urged the court to do. Id. at *5.
The court explained that a trial court that “fails to follow the requisites of Rule 42(a)
relative to the contents of its order holding an individual in contempt risks having its
contempt finding dismissed on the basis of insufficient evidence to support the
conviction.” Id. (citing Varley v. Varley, 934 S.W.2d 659, 664 (Tenn. Ct. App. 1996)).
However, the record before the court contained the trial judge‟s oral statements at the
hearing in which he found the defendant‟s actions to be contemptuous and certified that
the conduct occurred in his presence. The deficiency was merely the omission of this
information from a written order. The court of criminal appeals concluded, “[a]lthough
the better and correct practice would be for this information to be included in the order as
required by Rule 42(a), the defendant has not proven that he was harmed by the technical
deficiency, especially in view of the de novo appeal and circuit court judgment which
followed.” Id. at *5.
In another case, a defendant challenged a trial court‟s contempt order because it
“did not include either the factual basis of the charge or whether or not the contemptuous
statement was made in the court‟s presence.” Provencio, 2005 WL 3088078, at *3-4.
The court again found that “the preferred practice is certainly to include the requisite
factual detail in the order,” but the court nonetheless affirmed the contempt finding
because the defendant failed to show that he was harmed by the “technical omission.” Id.
at *4.
17
Here, we likewise find no harm to Mr. Brown from the juvenile court‟s one-day
delay in entering its written order, which clearly contains the requisite factual basis for
the contempt order. Although Mr. Brown claims he “was harmed by this insufficiency
because [he] had no way to defend his actions in front of the Court and was immediately
sentenced and sent to jail,” we are not persuaded that Mr. Brown was prejudiced by the
one-day delay. For the reasons already set forth in this opinion, Mr. Brown was not
entitled to a hearing on the summary finding of direct criminal contempt. In sum, we find
no reason to dismiss the contempt finding based on an alleged failure to comply with the
procedures of Rule 42(a).6
V. CONCLUSION
For the aforementioned reasons, the decision of the juvenile court is hereby
affirmed and remanded for further proceedings. Costs of this appeal are taxed to the
appellant, Joseph Brown, and his surety, for which execution may issue if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
6
Mr. Brown‟s brief on appeal vaguely asserts that this matter should be dismissed “due to double-
jeopardy considerations.” We are unable to definitively determine the basis for Mr. Brown‟s “double
jeopardy” argument, but it appears to be based on his assumption that “the initial finding of contempt by
Magistrate Horne was procedurally deficient and the subsequent Order of [the] Juvenile Court [was] void
ab initio.” We hold that the juvenile court‟s finding of contempt was neither procedurally deficient nor
void ab initio. In any event, however, we deem the issue of double jeopardy waived because it was not
listed as one of the issues presented for review in Mr. Brown‟s brief. “„Courts have consistently held that
issues must be included in the Statement of Issues Presented for Review required by Tennessee Rules of
Appellate Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.‟” Bunch
v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App. 2008) (citing Hawkins v. Hart, 86 S.W.3d 522, 531
(Tenn. Ct. App. 2001)).
18