2.4Direct Contempt (“Summary Contempt Proceedings”)
Generally, the first step in analyzing contempt is determining whether the contempt is civil or criminal; of equal importance is determining whether the contempt is direct or indirect. Often distinguishing between criminal and civil contempt is not necessary in the context of direct contempt. United Mine Workers v Bagwell, 512 US 821, 827 n 2 (1994) (“Direct contempts that occur in the court’s presence may be immediately adjudged and sanctioned summarily, and, except for serious criminal contempts in which a jury trial is required, the traditional distinction between civil and criminal contempt proceedings does not pertain.”) (citations omitted).
Both MCL 600.1701(a) and MCL 600.1711(1) authorize the punishment of direct contempt. Direct contempt occurs “during [the court’s] sitting[]” and “in [the court’s] immediate view and presence.” MCL 600.1701(a). Similarly, MCL 600.1711(1) provides that direct contempt of court occurs when the contemptuous action is committed “in the immediate view and presence of the court,” and permits the court to “punish it summarily.” MCL 600.1711(1). See also In re Contempt of Henry, 282 Mich App 656, 675 (2009) (“When a contempt is committed in the immediate view and presence of a court and immediate corrective action is necessary, the court may summarily punish it.”).
“Punishment for contempt is appropriate when it is required to restore order in the courtroom and to ensure respect for the judicial process.” In re Contempt of Dudzinski, 257 Mich App 96, 108-109 (2003) (quotation marks and citation omitted). See also Johnson v Mississippi, 403 US 212, 214 (1971).
The United States Supreme Court has held that the summary punishment of contempt satisfies due process requirements. Fisher v Pace, 336 US 155 (1949); Ex parte Terry, 128 US 289 (1888). However, it has also cautioned that “for a court to exercise the extraordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to be heard, the court-disturbing misconduct must not only occur in the court’s immediate presence, but that the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct.” In re Oliver, 333 US 257, 274-275 (1948). Further, summary punishment should be reserved only for conduct that is “‘an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public’ that, if ‘not instantly suppressed and punished, demoralization of the court’s authority will follow.’” Id. at 275, quoting Cooke v United States, 267 US 517, 536 (1925).
“[S]ummary proceedings . . . are only appropriate in cases of direct contempt—which is committed in the immediate view and presence of the court—and when the court determines that immediate corrective action is necessary.” In re Contempt of Murphy, ___ Mich ___, ___ (2025). In a summary contempt proceeding, “the court must [first] show—either through the existing transcript or through making a record—what occurred, i.e., the ‘evidence,’ similar to the evidence put forward by a prosecutor in a traditional criminal case.” Id. at ___. “Second, it must also make findings as to how the actions that are alleged to have occurred constitute the offense of contempt.” Id. at ___. In this case, a district court judge held defendant in contempt of court for engaging in “disrespectful conduct in direct view of the judge” and reconvened for a summary contempt proceeding. Id. at ___. “The judge held [defendant] in contempt but did not describe [defendant’s] contumacious conduct with any particularity on the record.” Id. at ___. On appeal, “[t]he circuit court reversed the district court’s order and vacated [defendant’s] contempt conviction.” Id. at ___. Because the record lacked evidence, “the circuit court remanded the case to the district court for nonsummary proceedings before a different judge.” Id. at ___. Defendant argued that “further contempt proceedings on remand would constitute double jeopardy.” Id. at ___.
Current “[c]aselaw from Michigan and other jurisdictions provides that when an appellate court reverses a contempt conviction because a lower court erred by proceeding summarily instead of nonsummarily in the first instance, a remand to allow the nonsummary proceeding is appropriate.” Id. at ___. However, the present issue is “whether an appellate court may remand for nonsummary proceedings following vacation of a summary contempt conviction when summary proceedings were initially appropriate.” Id. at ___. The circuit court and the Court of Appeals held that “the prohibition against double jeopardy does not bar subsequent nonsummary contempt proceedings after vacation of a summary contempt conviction.” Id. at ___. On leave, the Michigan Supreme Court declined to reach the constitutional question and instead held that “remand for nonsummary proceedings after a summary contempt conviction has been vacated for insufficient findings is improper because it would be futile and exceed the scope of the judiciary’s inherent contempt powers.” Id. at ___. “The proceedings where the alleged contumacious conduct occurred concluded years ago and there is no allegation that [the defendant] refused to comply with a lawful order of the court.” Id. at ___. Finding the reasoning of other jurisdictions to be persuasive, the Court concluded that “remand to the district court for nonsummary proceedings is not appropriate in this instance because the original purpose of the contempt proceedings has been served.” Id. at ___.
A.“Immediate View and Presence”
The Michigan Supreme Court defined “immediate view and presence” as follows:
“‘[I]mmediate view and presence’ are words of limitation, and exclude the idea of constructive presence. The immediate view and presence does not extend beyond the range of vision of the judge, and the term applies only to such contempts as are committed in the face of the court. Of such contempts, he [or she] may take cognizance of his [or her] own knowledge, and may proceed to punish summarily such contempts, basing his [or her] action entirely upon his [or her] own knowledge. All other alleged contempts depend solely upon evidence, and are inferences from fact[.]” In re Wood, 82 Mich 75, 82 (1890).
See also In re Scott, 342 Mich 614, 618-619 (1955) (discussing and quoting In re Wood).
MCL 600.1711(1) states that “[w]hen any contempt is committed in the immediate view and presence of the court, the court may punish it summarily by fine, or imprisonment, or both.” In re Contempt of Tauber, ___ Mich App ___, ___ (2025). In Tauber, defendant’s bond hearing was held over Zoom, and he was represented by appellant, an attorney. Id. at ___. “After the court’s bond ruling, appellant apparently believed that the Zoom hearing had disconnected and used derogatory curse words apparently in reference to the judge.” Id. at ___. “But the judge heard appellant, and he was held in criminal contempt.” Id. at ___. “Appellant contend[ed] that the trial court deprived him of due process of law by failing to allow an adjournment to review the video recording, failing to address the contempt as indirect and to hold a hearing, failing to provide notice and an opportunity to be heard, and failing to refer the contempt proceeding to a different judge.” Id. at ___. “The plain language of MCL 600.1711(1) allows the trial court to punish ‘any’ contempt committed ‘in the immediate view and presence of the court.’” Tauber, ___ Mich App at ___. “Where the contempt is committed directly under the eye or within the view of the court, it may proceed upon its own knowledge of the facts and punish the offender, without further proof, and without issue or trial in any form[.]” Id. at ___, quoting In re Scott, 342 Mich 614, 620 (1955). Further, the court noted “[t]he fact that the trial court conducted the hearing over Zoom instead of physically in the courtroom does not preclude a finding that misconduct or insolent behavior by an attorney constitutes contempt when it nonetheless occurs over video in the immediate view and presence of the court.” Tauber, ___ Mich App at ___.
As used in MCL 600.1701(a), the phrase “during its sitting” includes the period of time when the judge is actually in the courtroom conducting judicial business. In re Contempt of Warriner, 113 Mich App at 553-554. Therefore, if the contempt occurs in the courtroom during a period when the court has concluded one case and is about to proceed with another, it qualifies as having occurred during “the sitting of the court.” Id.
C.Personal Knowledge of All Necessary Facts
Contempt is only direct “when all the facts necessary to find the contempt are within the personal knowledge of the judge.” In re Contempt of Henry, 282 Mich App at 675. See also In re Scott, 342 Mich at 618 (holding that “in order to have a valid summary conviction, due process requires that the salient facts constituting the contempt be within the personal knowledge of the judge”). A judge does not have personal knowledge for purposes of summary contempt if the judge must rely on the testimony of other persons to establish the case against the contemnor. Id. at 619-622.
In a summary contempt proceeding, “the court must [first] show—either through the existing transcript or through making a record—what occurred, i.e., the ‘evidence,’ similar to the evidence put forward by a prosecutor in a traditional criminal case.” In re Contempt of Murphy, ___ Mich ___, ___ (2025). “Second, it must also make findings as to how the actions that are alleged to have occurred constitute the offense of contempt.” Id. at ___. In this case, a district court judge held defendant in contempt of court for engaging in “disrespectful conduct in direct view of the judge” and reconvened for a summary contempt proceeding. Id. at ___. “The judge held [defendant] in contempt but did not describe [defendant’s] contumacious conduct with any particularity on the record.” Id. at ___. On appeal, “[t]he circuit court reversed the district court’s order and vacated [defendant’s] contempt conviction.” Id. at ___. Because the record lacked evidence, “the circuit court remanded the case to the district court for nonsummary proceedings before a different judge.” Id. at ___. Defendant argued that “further contempt proceedings on remand would constitute double jeopardy.” Id. at ___.
Current “[c]aselaw from Michigan and other jurisdictions provides that when an appellate court reverses a contempt conviction because a lower court erred by proceeding summarily instead of nonsummarily in the first instance, a remand to allow the nonsummary proceeding is appropriate.” Id. at ___. However, the present issue is “whether an appellate court may remand for nonsummary proceedings following vacation of a summary contempt conviction when summary proceedings were initially appropriate.” Id. at ___. The circuit court and the Court of Appeals held that “the prohibition against double jeopardy does not bar subsequent nonsummary contempt proceedings after vacation of a summary contempt conviction.” Id. at ___. On leave, the Michigan Supreme Court declined to reach the constitutional question and instead held that “remand for nonsummary proceedings after a summary contempt conviction has been vacated for insufficient findings is improper because it would be futile and exceed the scope of the judiciary’s inherent contempt powers.” Id. at ___. “The proceedings where the alleged contumacious conduct occurred concluded years ago and there is no allegation that [the defendant] refused to comply with a lawful order of the court.” Id. at ___. Finding the reasoning of other jurisdictions to be persuasive, the Court concluded that “remand to the district court for nonsummary proceedings is not appropriate in this instance because the original purpose of the contempt proceedings has been served.” Id. at ___ (noting that “judges must both make sufficient findings to support a contempt adjudication and ensure that there is a sufficient record for review if the alleged conduct was not otherwise documented in court recordings or transcripts”).
E.No First Amendment Protection for Contemptuous Speech
“[D]isruptive, contemptuous behavior in a courtroom is not protected by the constitution.” People v Kammeraad, 307 Mich App 98, 149 (2014) (quotation marks and citation omitted). The defendant’s First Amendment rights were not violated by the trial court’s finding of contempt where his actions and remarks disturbed the administration of justice. Id. at 148-149 (noting that the defendant appeared at the sentencing hearing partially undressed, interrupted defense counsel, and when given the chance to make a statement, stated that he was “not the defendant” and that he believed the trial court had acted criminally).
However, “‘[c]riticism of the courts within limits should not be discouraged and it is a proper exercise of the rights of free speech and press. Such criticism should not subject the critic to contempt proceedings unless it tends to impede or disturb the administration of justice.’” In re Contempt of Dudzinski, 257 Mich App 96, 101-102 (2003), quoting In re Gilliland, 284 Mich 604, 610-611 (1938). Courts must use a balancing test to determine whether speech is punishable by contempt. In re Contempt of Dudzinski, 257 Mich App at 102. When determining whether certain speech constitutes contempt, courts must “appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes.” Pennekamp v Florida, 328 US 331, 336, 349-350 (1946) (weighing the danger to fair judicial administration against First Amendment protections and determining that two newspaper editorials criticizing the trial court did not present a clear and immediate danger to fair judicial administration).
Nevertheless, where the trial court found a trial spectator in direct criminal contempt after the spectator refused to obey the trial court’s order to remove a shirt with politically protected speech on it, the Court of Appeals upheld the finding of criminal contempt. In re Contempt of Dudzinski, 257 Mich App at 111. The Court explained that even though the statement on the shirt was constitutionally protected speech, the “willful violation of the trial court’s order, regardless of its legal correctness, warranted the trial court’s finding of criminal contempt.” Id.
F.Deferring Consideration of Direct Contempt
“When a court defers consideration of contempt until the conclusion of the trial, another judge must consider the charges.” In re Contempt of Henry, 282 Mich App at 676, citing In re Contempt of Scharg, 207 Mich App 438, 440 (1994).
In In re Contempt of Scharg, the trial court found the defendant, a defense attorney, in contempt at the conclusion of a criminal trial at which the defendant was representing a client. Scharg, 207 Mich App at 439. The trial court cited five separate disruptive incidents that occurred during the course of the trial and in the court’s presence and found the defendant in contempt; the defendant requested a hearing and the trial court denied the request. Id. The Court of Appeals reversed the trial court’s summary finding of contempt, holding that “[w]here the contumacious behavior does not require an immediate response, there is no need to sacrifice traditional procedural safeguards.” Id. at 439-440.
In In re Contempt of Henry, the defendant was held in contempt for perjuring herself during three indirect criminal contempt hearings. In re Contempt of Henry, 282 Mich App at 676. The defendant argued that the perjury was a direct contempt because it was committed in the presence of the trial court, and she was entitled to a full hearing before a different judge because the trial court did not immediately find her in contempt for the perjury. Id. at 675. The Court rejected the defendant’s argument, finding that the defendant was already participating in the evidentiary hearings required by MCL 600.1711(2), and after hearing all the evidence at the three hearings, the trial court found that the evidence showed that the defendant had perjured herself. In re Contempt of Henry, 282 Mich App at 676. Accordingly, “[t]he trial court certainly did not find that contempt occurred during a trial and then defer the contempt order until the conclusion of the trial like the court did in Scharg.” Id.