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Summary Contempt and Punishment in Virginia


June 12, 2023 by Tom Roberts, Esq.

When judges violate the law - summary contempt and punishment for conduct outside of their presence.

Judges have substantial power — power which they at times abuse. It is wrong for a judge to summarily hold an individual in contempt for a matter that the judge did not personally observe in the courtroom.

Examples of this might include a judge summarily holding a litigant in contempt when the deputy reports back to the court that she observed something said in the hallway.

However, an equally divided court en banc Virginia Court of Appeals affirmed a Loudoun County trial judge who summarily held a witness in contempt when the witness had trouble following the instructions of the court not to mention the witness’ statement admitting that she had smoked weed prior to coming to the court.

While some cases may be decided on a razor edge’s set of facts, the law remains clear:

Parties facing a contempt charge for events occurring outside the presence of the judge are entitled to due process rights, to notice of the contempt charge, a fair plenary hearing, and representation by counsel.

What is summary adjudication and punishment of contempt?

Summary adjudication and punishment of contempt are lawfully used to vindicate the authority and dignity of the court where “immediate punishment is essential to prevent ‘demoralization of the court’s authority’ before the public.” Parham v. Commonwealth, 60 Va. App. 450, 457 (2012) (quoting In re Oliver, 333 U.S. 257, 275 (1948) (citation omitted)). “In a summary adjudication, no evidence or further proof is required because the court has observed the offense.” Gilman v. Commonwealth, 275 Va. 222, 227-28 (2008) (citing Cooke v. United States, 267 U.S. 517, 534 (1925)).

Examples of Direct Contempt

What are examples of behavior for which a court may summarily adjudicate and punish you for contempt?   Flipping the bird to the judge.  Cursing the judge.  Etc.

Summary punishment is limited to “direct contempt” committed in the court's immediate presence.

“Summary punishment always, and rightfully, is regarded with disfavor . . . .” Scialdone v. Commonwealth, 279 Va. 422, 443 (2010) (quoting Sacher v. United States, 343 U.S. 1, 8 (1952)). In accordance with the constitutional requirements of procedural due process, a court’s authority to find and punish contempt in a summary proceeding is narrowly limited to direct contempt. See id. at 442-43. “Generally, a direct contempt is one committed in the presence of the court.” Gilman, 275 Va. at 227. For a court to summarily punish for contempt, “the court-disturbing misconduct must not only occur in the court’s immediate presence, . . . the judge must have personal knowledge of it acquired by his own observation of the contemptuous conduct.” In re Oliver, 333 U.S. at 275. In cases of indirect contempt where the judge did not personally observe all the essential elements of the misconduct, due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. Scialdone, 279 Va. at 443 (alteration in original) (quoting In re Oliver, 333 U.S. at 275). When a judge’s knowledge of the contemptuous conduct is “acquired from the testimony of others, or even from the confession of the accused, [this] would not justify conviction without a trial in which there was an opportunity for [the accused to present a] defense.” See In re Oliver, 333 U.S. at 275 (emphasis added).

In a summary contempt proceeding, “when a trial court observes the essential elements of the contemptible conduct,” the court may “ask questions to clarify some detail.” Scialdone, 279 Va. at 447. But the answers to such questions—whether provided by the accused or other witnesses—cannot serve as the trial court’s factual basis for finding any essential element of the alleged contemptible conduct. See id.; In re Oliver, 333 U.S. at 275.

Virginia Court of Appeals Reverses Loudoun County Circuit Court reaffirming due process rights are a must - only to affirm the Circuit Court by an equally divided en banc court!

In the Loudoun County case, the Virginia Court of Appeals 3 judge panel concluded “Because all the essential elements of the alleged contemptible conduct did not occur in the presence of the circuit court, Ms. Orndoff had due process rights to notice of the contempt charge, a fair plenary hearing, and representation by counsel. See Amos v. Commonwealth, 61 Va. App. 730, 743 (2013) (“If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires . . . that the accused be accorded notice and a fair hearing.” (alteration in original) (quoting In re Oliver, 333 U.S. at 275-76)), aff’d, 287 Va. 301 (2014). Therefore, the circuit court erred in exercising the power of summary contempt.”  Orndoff v. Commonwealth of Virginia (2023) (vacated opinion and trial court affirmed by equally divided en banc court)


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