5.3Contempt for Interrupting Proceedings or Disrespecting the Court’s Authority

A.Statutory Authority

“The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:

(a) Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due its authority.

(b) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings.” MCL 600.1701(a)-(b).¹

B.Misconduct by Criminal Defendants

A criminal defendant’s constitutional right to confront his or her accusers, US Const, Am VI, and Const 1963, art 1, § 20, encompasses the ancillary right to be present in the courtroom during trial.² Maryland v Craig, 497 US 836, 844 (1990). However, a defendant may waive the right to be present because of his or her conduct in the courtroom. In Illinois v Allen, 397 US 337, 343 (1970), the Court stated:

“[W]e explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”

See, e.g., People v Harris, 80 Mich App 228, 229-230 (1977) (trial court properly exercised discretion in removing defendant who, despite numerous warnings, repeatedly interrupted the trial with his willful and disorderly behavior). Cf. People v Buie (On Remand), 298 Mich App 50, 59-60 (2012) (defendant’s removal from courtroom not justified following a single interruption of voir dire).

The Allen Court discussed three constitutionally permissible approaches a trial judge may use in handling an obstreperous defendant. See Allen, 397 US at 344. Relevant to this benchbook is the court’s authority to cite or threaten to cite the defendant for contempt. Id. at 344. Criminal contempt may be used to punish the conduct and may deter the defendant from similar future conduct. See People v Ahumada, 222 Mich App 612, 617-618 (1997). Where the sanctions for criminal contempt pale in comparison to the penalty for the offense charged, criminal contempt may be of little use, in which case civil contempt may be used and the defendant jailed until he or she acts properly. See Allen, 397 US at 345.

Michigan courts have relied upon Allen in affirming convictions where the defendant’s conduct resulted in his or her absence at trial. See e.g., People v Kammeraad, 307 Mich App 98, 149 (2014) (holding that the trial court properly excluded the defendant from the courtroom during his trial due to the defendant’s repeatedly disruptive behavior).

“‘[T]he test for whether [a] defendant’s absence from a part of his [or her] trial requires reversal of his [or her] conviction is whether there was any reasonable possibility that [the] defendant was prejudiced by his [or her] absence.’” People v Buie (On Remand), 298 Mich App 50, 59 (2012), quoting People v Armstrong, 212 Mich App 121, 129 (1995) (reversal not required where the defendant was absent for only a short period during voir dire and there was no evidence to support a finding that there was any reasonable possibility that he was prejudiced by the brief absence).

C.Right to Allocute

Finding a defendant in contempt of court at the sentencing hearing does not violate the defendant’s right to allocute under MCR 6.425(D)(1)(c), as long as the court has provided the defendant with an opportunity to allocute as required by the court rule. See People v Kammeraad, 307 Mich App 98, 149 (2014) (finding the defendant in contempt did not violate his right to allocute under MCR 6.425(D)(1)(c) where “the circuit court gave defendant every opportunity to allocute,” and rather than allocuting, the “defendant engaged in a nonsensical rant that had absolutely nothing to do with his sentencing”).³

D.Right to Free Speech

“Disruptive, contemptuous behavior in a courtroom is not protected by the constitution.” People v Warriner, 113 Mich App 549, 555 (1982), citing Cox v Louisiana, 379 US 559 (1965).

A “court’s contempt ruling at the [defendant’s] sentencing hearing [did not] violate[] his constitutional right to free speech under the First Amendment” where “[the d]efendant’s conduct during sentencing was disorderly, contemptuous, and insolent, directly tending to impair the respect due the court and reflecting the culmination of disorderly, contemptuous, insolent, and disrespectful behavior, MCL 600.1701(a), all of which was directly witnessed by the court firsthand,” and the “defendant’s actions and remarks tended to disturb the administration of justice.” People v Kammeraad, 307 Mich App 98, 146, 148-149 (2014).

E.Attorney Misconduct: The Line Between Zealous Representation and Contempt

In People v Kurz, 35 Mich App 643, 651 (1971), the Court of Appeals distinguished between zealous representation of a client’s interests in court and contumacious conduct. The Court stated the following:

“Unless a lawyer’s conduct manifestly transgresses that which is permissible[,] it may not be the subject of charges of contempt. Any other rule would have a chilling effect on the constitutional right to effective representation and advocacy. In any case of doubt, the doubt should be resolved in the client’s favor so that there will be adequate breathing room for courageous, vigorous, zealous advocacy.”

The misconduct “must constitute an imminent, not merely a likely, threat to the administration of justice.” In re Little, 404 US 553, 555 (1972).

In Kurz, the trial court was not justified in charging defense counsel with 107 instances of contempt, almost all of which involved the allegedly improper voicing of objections to questions asked by the prosecutor. Id. at 661-679 (transcripts of some of the charged instances of misconduct).

In In re Contempt of O’Neil, 154 Mich App 245, 246-247 (1986), the trial court was justified in finding a criminal defense attorney in contempt for continuing to argue an issue after the court made its ruling and warning the attorney that further argument would result in a contempt citation. The Court of Appeals found that by the time the court warned the attorney, the attorney had fully advocated his client’s position. Id. at 248. For cases reaching similar results, see In re Contempt of Peisner (People v Jackson), 78 Mich App 642, 643 (1977), and In re Burns, 19 Mich App 525, 526 (1969).

To be subject to sanctions, the attorney’s conduct must amount to a “wilful creation of an obstruction of the performance of judicial duty[.]” In re Meizlish, 72 Mich App 732, 738 (1976), citing In re McConnell, 370 US 230, 236 (1962). In McConnell, after the judge told the attorney to stop a certain line of questioning, the attorney asserted a right to ask the questions and stated that he planned to continue until the bailiff stopped him. Id. at 235. The United States Supreme Court reversed the contempt citation against the attorney, finding that the attorney’s mere statement that he planned to continue the questioning did not constitute an obstruction of justice. Id. at 235-236.

To avoid the appearance of partiality, the court should excuse the jury before citing an attorney for contempt of court. People v Williams, 162 Mich App 542, 547 (1987).