As an arbitrator and hearing officer/ALJ in New Mexico, I am occasionally confronted with the issue of proper use of contempt and contempt-like powers. I have from time to time been frustrated with the arbitrator and hearing examiner's relative lack of powers to compel compliance. However, reading a recent New Mexico court decision, it occurred to me without such powers we are also insulated from their potential abuse in heated situations.
In Lynette Concha, et al., v. Hon. Sam B. Sanchez and State of New Mexico, 2011-NMSC-031, concluded a trial judge abused his contempt powers by jailing 32 rowdy observers at a trial without a hearing or bond. While these are extreme circumstances that (knock on wood) rarely confront a mediator or ALJ, the ultimate conclusion of the court is still instructive to all neutral decision makers.
The underlying hearing concerned a controversial criminal case, in which a defendant who had plead guilty to criminal sexual contact of his 13-year-old niece moved the Court for a sentence reduction. His motion was heard and denied on Thursday, November 19, 2009 and the Judge recessed the court, as the bailiff cried "All rise." Thereafter, the Judge directed the many family and friends of the criminal defendant family to remain seated, and the criminal defendant stated "This has all been one sided." The crowd's noise increased and some members indicated agreement with that statement. Additionally, several unidentified members of the crown shouted messages of support to the criminal defendant, and derogatory statements concerning the victim and the family members who had supported her.
Less than a minute after the bailiff said "all rise" and the Judge told them to remain seated, the Judge shouted "That's enough,--I'll hold everyone of you in contempt and jail you all!" The noise level immediately dropped, but one unidentified voice said "We"ll all go," at which point the Judge yelled "You'll all go? Okay, take them all. go on, all of you, go on to Jail!" The Judge then had the sheriffs called immediately, and deputy sheriffs arrived and processed the spectators on the criminal defendant's side of the court into the Taos Pueblo Jail, the Taos County Jail, and the Santa Fe County Detention Center. That day, "[w]ithout any further hearing or fact-finding process," the Judge entered 32 "identical two-sentence orders that facially adjudicated each Petitioner guilty of direct criminal contempt." Id. ¶10.
In response to an emergency writ of prohibition or superintending control, the Judge "took the position that he had used contempt sanctions against all Petitioners, whether guilty or innocent of misconduct in order to protect the safety of all courtroom occupants and to regain control of the courtroom" The Judge maintained "that his primary goal was to ensure the safety of the victim and her family. He feared that an attack was imminent because 'all hell broke loose' in the courtroom at the close of the hearing and there were some members of the crown who were standing and yelling. Respondent said he was especially concerned because there were no 'law enforcement' personnel present at the court and one of the court's two bailiffs was outside the courthouse managing security at the entrance. Respondent further explained that he could not tell which of the members of crowd were standing or yell," so "he had no choice but to arrest all the spectators in the area of the courtroom where the disturbance had taken place." Id .¶¶ 17-18.
After the Judge ordered the 32 Petitioners to jail on Thursday, there was no hearing conducted, and arraignment was not scheduled until the following Monday. The emergency Petition was filed on Friday and the state Supreme Court issued a stay of the contempt proceedings and ordered the Petitioners release, while also ordering them to appear for the arraignment scheduled on Monday. On Monday, instead of holding an arraignment or other hearing, the Judge "entered a single order, naming all Petitioners as codefendants in a single case," summarily dismissing the entire matter with prejudice. Id. ¶13.
While conceding a trial judge has inherent authority to exercise contempt powers to maintain decorum and control of the courtroom, the Supreme Court concluded the Judge did not have authority to hold the Petitioners in direct contempt--meaning without a hearing, based on personal observations--since the Judge admitted he did not know who among the 32 Petitioners were standing and yelling. The Court also concluded the Judge would have lacked authority to hold the Petitioners in indirect contempt, since the "Petitioners were given no opportunity to prepare or present any defense." Id. ¶40.
Notably, while sympathetic to the Judge's situation at the time, the Court concluded the "the need for courtroom control cannot override the requirement that judges themselves must honor the rule of law." Id. ¶42. In particular, "[a] judge's exercise of contempt power must be tailored to the contemptuous conduct, exerting just enough judicial power to right the wrong; no more, no less. Id. ¶44. Here, however, the judge did not give the Petitioners adequate warning of the consequences of disobedience and, furthermore, had already obtained complete control--to the extent the audience had quieted--by the time he did exercise his contempt powers.
Wow. Well, if you have need of neutral services that don't involve risk of detainment or similar exercise of contempt powers, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
Notably, while sympathetic to the Judge's situation at the time, the Court concluded the "the need for courtroom control cannot override the requirement that judges themselves must honor the rule of law." Id. ¶42. In particular, "[a] judge's exercise of contempt power must be tailored to the contemptuous conduct, exerting just enough judicial power to right the wrong; no more, no less. Id. ¶44. Here, however, the judge did not give the Petitioners adequate warning of the consequences of disobedience and, furthermore, had already obtained complete control--to the extent the audience had quieted--by the time he did exercise his contempt powers.
Wow. Well, if you have need of neutral services that don't involve risk of detainment or similar exercise of contempt powers, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
