710-1077 Criminal contempt of court. (1) A person commits the offense of criminal contempt of court if:

(a) The person recklessly engages in disorderly or contemptuous behavior, committed during the sitting of a court in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority;

(b) The person creates a breach of peace or a disturbance with intent to interrupt a court's proceedings;

(c) As an attorney, clerk, or other officer of the court, the person knowingly fails to perform or violates a duty of the person's office, or knowingly disobeys a lawful directive or order of a court;

(d) The person knowingly publishes a false report of a court's proceedings;

(e) Knowing that the person is not authorized to practice law, the person represents the person's self to be an attorney and acts as such in a court proceeding;

(f) The person intentionally records or attempts to record the deliberation of a jury;

(g) The person knowingly disobeys or resists the process, injunction, or other mandate of a court;

(h) The person intentionally refuses to be qualified as a witness in any court or, after being qualified, to answer any proper interrogatory without a privilege to refuse to answer;

(i) Being a juror, the person intentionally, without permission of the court, fails to attend a trial or official proceeding to which the person has been summoned or at which the person has been chosen to serve; or

(j) The person is in violation or disobedience of any injunction or order expressly provided for in part V of chapter 712.

(2) Except as provided in subsections (3) and (7), criminal contempt of court is a misdemeanor.

(3) The court may treat the commission of an offense under subsection (1) as a petty misdemeanor, in which case:

(a) If the offense was committed in the immediate view and presence of the court, or under such circumstances that the court has knowledge of all of the facts constituting the offense, the court may order summary conviction and disposition; and

(b) If the offense was not committed in the immediate view and presence of the court, nor under such circumstances that the court has knowledge of all of the facts constituting the offense, the court shall order the defendant to appear before it to answer a charge of criminal contempt of court; the trial, if any, upon the charge shall be by the court without a jury; and proof of guilt beyond a reasonable doubt shall be required for conviction.

(4) When the contempt under subsection (1) also constitutes another offense, the contemnor may be charged with and convicted of the other offense notwithstanding the fact that the contemnor has been charged with or convicted of the contempt.

(5) Whenever any person is convicted of criminal contempt of court or sentenced therefor, the particular circumstances of the offense shall be fully set forth in the judgment and in the order or warrant of commitment. In any proceeding for review of the judgment, sentence, or commitment, no presumption of law shall be made in support of the jurisdiction to render the judgment, pronounce the sentence, or order the commitment. A judgment, sentence, or commitment under subsection (3)(a) shall not be subject to review by appeal, but shall be subject to review in an appropriate proceeding for an extraordinary writ or in a special proceeding for review.

All other judgments, sentences, or commitments for criminal contempt of court shall be subject to review by appeal, in a proceeding for an appropriate extraordinary writ, or in a special proceeding for review.

(6) Nothing in this section shall be construed to alter the court's power to punish civil contempt. When the contempt consists of the refusal to perform an act which the contemnor has the power to perform, the contemnor may be imprisoned until the contemnor has performed it. In such a case the act shall be specified in the warrant of commitment. In any proceeding for review of the judgment or commitment, no presumption of law shall be made in support of the jurisdiction to render the judgment or order the commitment. When a court of competent jurisdiction issues an order compelling a parent to furnish support, including child support, medical support, or other remedial care, for the parent's child, it shall constitute prima facie evidence of a civil contempt of court upon proof that:

(a) The order was made, filed, and served on the parent or proof that the parent was present in court at the time the order was pronounced; and

(b) The parent did not comply with the order.

An order of civil contempt of court based on prima facie evidence under this subsection shall clearly state that the failure to comply with the order of civil contempt of court may subject the parent to a penalty that may include imprisonment or, if imprisonment is immediately ordered, the conditions that must be met for release from imprisonment. A party may also prove civil contempt of court by means other than prima facie evidence under this subsection.

(7) Any violation or disobedience of any injunction or order expressly provided for in part V of chapter 712 is punishable by:

(a) A fine of not less than $400 nor more than $5,000;

(b) Imprisonment for not less than one nor more than six months; or

(c) Both a fine and imprisonment pursuant to paragraphs (a) and (b). [L 1972, c 9, pt of 1; am L 1973, c 136, 8(a); am L 1979, c 181, 3; am L 1987, c 176, 3; am L 1988, c 141, 60; gen ch 1993; am L 2008, c 157, 3; am L 2015, c 35, 27]

 

Revision Note

 

In subsection (7)(a), "or" deleted and punctuation changed and in subsection (7)(b), punctuation changed pursuant to 23G-15.

 

COMMENTARY ON 710-1077

 

Contempt of court is, perhaps, one of the least understood areas of the law. Perkins has said "a large part of it is clearly outside the area of criminal law and much of the rest hardly more than 'quasi-criminal.'"[1] The contempt proceeding has been called "'an anomaly,' a mixture of the attributes of the criminal process and those of the equity proceeding."[2]

Not the least source of confusion is the various classifications of contempt depending on (1) the type of penalty imposed (civil or criminal), and (2) the proximity of behavior penalized to the judicial proceeding with which it interferes (direct or constructive).

Civil contempt is disobedience to a court order; it is punished by a penalty which is coercive and corrective in nature; the penalty can be avoided by compliance with the court order. For example, for refusal of a witness to answer a proper question, the court may order the witness imprisoned until the witness answers. Criminal contempt is conduct which brings the court into disrespect or which interferes with the administration of justice. The penalty for criminal contempt is a sentence or order which the defendant cannot avoid. Insulting behavior toward the court or an assault on a bailiff would constitute two modes of criminal contempt, for which a court might impose a sentence of imprisonment for a certain period of time. Certain contempt may be both civil and criminal if both types of dispositions are appropriate. Refusal to answer a proper question may be penalized as both criminal and civil contempt; the court may, e.g., order the contemnor to be imprisoned for one day and to be imprisoned thereafter until the contemnor answers the question.

It is often said that a direct contempt is one which takes place in the presence of the court or so near the court as to interfere with judicial proceedings. An indirect or constructive contempt is contempt committed at a distance from the court or proceedings but which degrades the court or interferes with its proceedings. Although couched in substantive terms, the consequences of the distinction are largely procedural. If the contempt is direct, the court may impose punishment summarily, whereas if the contempt is constructive, due process requires that the court issue an order to show cause and hold a hearing thereon before punishment is imposed. This being the case, a more rational "determinant insofar as procedure is concerned is whether or not the contempt was committed under such circumstances that the judge has knowledge of all the facts and hence has no need to hear evidence."[3]

Although often challenged, the United States Supreme Court had held, until recently, mostly on historical grounds,[4] that contempt proceedings were not intended by the framers of the Constitution to be within the constitutional guarantees of trial by jury,[5] and that "it has always been the law of the land, both state and federal, that the courts--except where specifically precluded by statute--have the power to proceed summarily in contempt matters."[6]

In a recent series of opinions, the Court has redefined the nature of contempt and its relation to constitutional procedural guarantees. In United States v. Barnett (1964),[7] Cheff v. Schnackenburg (1966),[8] Bloom v. Illinois (1968),[9] and Dyke v. Taylor Implement Mfg. Co. (1968)[10] the Court has gradually, and in increments, adopted the position that: (1) the Constitution's criminal jury trial provisions apply to serious offenses and not to petty offenses;[11] (2) criminal contempt "is a crime in every fundamental respect" and, for purposes of the constitutional guarantees to trial by jury in criminal cases, it will be treated the same as other criminal offenses;[12] and (3) where the criminal contempt constitutes a serious offense, the Constitution guarantees the right to trial by jury, where the criminal contempt constitutes a petty offense, it does not.[13]

The Court has distinguished the severity of the penalty authorized or imposed from the seriousness of the offense committed.[14] However, this appears to be a distinction without a difference, because a majority of the Court appear to accept as the best, if not the only, evidence of the seriousness of the offense the penalty authorized or imposed.[15] Although "the exact location of the line between petty offenses and serious crimes" is not settled,[16] a majority of the Court appear to accept the position that where the maximum term of imprisonment may not exceed six months a jury trial is not guaranteed by the Federal Constitution in criminal contempt cases.[17]

Justices Black and Douglas have taken the position that a defendant charged with criminal contempt is entitled, under the Federal Constitution, to a trial by jury.[18] Whether this position results from their characterization of criminal contempt as a serious crime, or from the belief that any imprisonment is a severe penalty which cannot be imposed without trial by jury, is not clear.[19]

The procedural right to trial by jury in cases of criminal contempt, where "severe" punishment is authorized and the offense therefore regarded as "serious," which the Supreme Court has imposed on the states as a matter of constitutional law, has long been recognized by statute in Hawaii.[20] Previous Hawaii law limited the punishment which may be imposed if the Court proceeded summarily without a jury.[21]

Section 710-1077 attempts to preserve as much of the framework of the previous chapter on contempts[22] as is possible, and at the same time, to clarify and, in some instances, expand the statutory law.

Subsection (1) spells out more clearly than the previous code the types of conduct regarded as contumacious. Subsections (1)(a), (1)(b), (1)(g), and (1)(h) are clarifications of former law. Each subsection states specifically the mental culpability required for conviction. Contempt in open court under subsection (1)(a) may be committed recklessly; however, under subsection (1)(b) [breach of the peace], (1)(g) [disobedience or resistance to process, injunction, or mandate], and (1)(h) [refusal to be qualified as a witness or answer proper interrogatory] the actor must act intentionally.

Subsection (1)(d) limits contempt by publication to one who "knowingly publishes a false report of a court's proceedings." The Code eliminates language contained in the previous codification which could be interpreted to penalize as contemptuous constitutionally protected publications.[23]

Subsections (1)(c) [violation of duty or order by officer of court], (1)(e) [unauthorized practice before a court], (1)(f) [recording deliberation of a jury], and (1)(i) [failure of juror to attend trial or official proceeding] are additions to statutory law. Although similar types of behavior have been held to constitute criminal contempt under case law development,[24] the Code proposes codification of conduct regarded as contempt of court. The policy against common-law crimes also weighs heavily against the unrestrained common-law development of loose statutory standards.

Subsection (2) makes the offense a misdemeanor; a slight reduction in the two years' imprisonment previously authorized.[25] As in the case of all misdemeanors the offense is triable as a criminal offense, i.e., by a jury unless jury trial is waived.

Subsection (3) preserves the court's power to dispose of criminal contempts without a jury trial; however, in such cases, the offense must be treated as a petty misdemeanor. The Code makes no distinction, as does the prior law,[26] in the summary punishment which may be imposed by State Supreme, Circuit, and District Courts. The Code's lowest grade of criminal offense, petty misdemeanor, seems easily within the Supreme Court's concept of "petty offense." Disposition of an offense under subsection (3) would not, therefore, violate the defendant's constitutional right to trial by jury. Moreover, the division of subsection (3) into two parts provides due process in another respect. Subsection (3)(b) assures that where the contempt is not direct, i.e., not in the immediate view and presence of the court, nor under such circumstances that the court has knowledge of all the facts constituting the offense, the defendant must be charged, and, if tried, proved guilty beyond a reasonable doubt.

A majority of the United States Supreme Court has rejected, repeatedly, the position taken by Black and Douglas, JJ., in their dissents in Barnett, Cheff, and Dyke, that a jury trial is guaranteed by the Federal Constitution in all criminal contempt cases. We have considered implementing by statute this policy in favor of jury trials. However, it seems to us that, on the balance, the value in permitting the court to proceed without a jury, in cases where the offense is treated as a petty misdemeanor, outweighs the value of enlarging the defendant's right to jury trial. A contrary decision would force the court, in some instances, to be a witness in its own behalf--a status it would be ill-suited and loath to assume.

Subsection (4) provides that contempts which constitute both contempt and another offense do not relieve the defendant of liability for the other offense merely because its commission was contemptuous of the court. For example, if a person were to cause disorder in a courtroom, during the course of proceedings, by assaulting another person, the person would be guilty of contempt. The person would also be guilty of an assault. The fact that the court imposed summary punishment for the contempt, or the fact that the person was put in jeopardy for the misdemeanor offense of criminal contempt of court, would not allow the defendant to plead double jeopardy to a charge of assault based on the same conduct. Any danger presented by the possibility of multiplicity of convictions is obviated somewhat by the limitation in chapter 706 against ordering that sentences be served consecutively.

Subsection (5) is a concise restatement of former law,[27] with the exception that it eliminates the restriction against district courts trying cases of constructive contempt.

Subsection (6) explicitly preserves the court's power to deal with cases of civil contempt and is otherwise a restatement of prior law.[28]

 

SUPPLEMENTAL COMMENTARY ON 710-1077

 

Act 136, Session Laws 1973, amended subsection (5) by amending the last sentence of the first paragraph and by adding the second paragraph. Prior to amendment, the last sentence of the first paragraph read: "A conviction under subsection (3)(a) shall not be subject to review by direct appeal."

Act 181, Session Laws 1979, amended subsection (1) and added subsection (7) as part of an effort to provide a remedy to abate as nuisances, certain offenses against public health and morals.

Act 157, Session Laws 2008, amended subsection (6) to provide that when a court of competent jurisdiction issues an order compelling a parent to furnish the parent's child with support, proof that the order was made, filed, and served on the parent or that the parent was present in court at the time the order was pronounced, and that the parent did not comply with the order, shall constitute prima facie evidence of a civil contempt of court. Act 157 clarified that if an order of civil contempt based on prima facie evidence imposes immediate imprisonment, the order shall set forth the conditions that must be met for release from imprisonment. The Act also clarified that civil contempt of court may be established by means other than by prima facie evidence. Act 157 facilitated the proof of civil contempt of court in proceedings involving enforcement of a court order compelling a parent to pay child support, medical support, or other remedial care for the parent's child. Conference Committee Report No. 21-08, Senate Standing Committee Report No. 873.

Act 35, Session Laws 2015, amended subsection (6) by changing the paragraph designations and subsection (7) by making technical nonsubstantive amendments.

 

Law Journals and Reviews

 

Contemporary Contempt: The State of the Law in Hawaii. I HBJ, no. 13, at 59 (1997).

An Evaluation of the Summary Contempt Power of the Court: Balancing the Attorney's Role as an Advocate and the Court's Need for Order. 19 UH L. Rev. 145 (1997).

 

Case Notes

 

Court's summary contempt power discussed. 365 F. Supp. 941 (1973).

Whether attorney's conduct in court amounted to contempt. 55 H. 430, 521 P.2d 668 (1974).

Violation of order enjoining unauthorized practice of law as criminal contempt. 55 H. 458, 522 P.2d 460 (1974).

Defendant's failure to appear for trial as directed was direct contempt of court under subsection (3)(a) and was not subject to review by appeal. 56 H. 203, 532 P.2d 663 (1975).

Attorney's absence from court proceeding is not contempt committed within presence of court. 59 H. 425, 583 P.2d 329 (1978).

Refusal to perform an act which the contemnor is unable to perform must be punished as criminal rather than civil contempt. 60 H. 160, 587 P.2d 1220 (1978).

Failure to set forth factual specifications required in subsection (5) warranted reversal of contempt conviction. 60 H. 221, 588 P.2d 428 (1978).

Summary application of section upheld. 65 H. 119, 648 P.2d 1101 (1982).

Where there is a trial without a jury, the judge who lodged the complaint for contempt may not decide the outcome. 70 H. 459, 776 P.2d 1182 (1989).

Oral findings by the trial court are insufficient to meet the requirements of section. 71 H. 564, 798 P.2d 906 (1990).

Compulsory joinder of offenses requirement under 701-109(2) applies to criminal contempt charges. 72 H. 164, 811 P.2d 815 (1991), cert. denied, 502 U.S. 867 (1991).

Where there is no judgment, sentence, or commitment for an appellate court to review pursuant to subsection (5), petition requesting ruling that attorney's conduct was not contemptuous was premature. 74 H. 267, 842 P.2d 255 (1992).

Counsel yelling at the court and blatantly stating, in the presence of the jury, that court was working with opposing counsel, were simply contemptuous acts that supreme court found to be inexcusable. 76 H. 187, 873 P.2d 66 (1994).

Trial court erred by failing to include any factual specifications in its judgment as required under subsection (5); in such case, a judgment of conviction of criminal contempt must be vacated and not reversed. 88 H. 188, 964 P.2d 642 (1998).

Where defendant was appropriately convicted of and sentenced for criminal contempt under subsection (3)(a) and subsection (5) required defendant to seek review in a proceeding for an extraordinary writ or special proceeding, defendant's direct appeal dismissed for lack of appellate jurisdiction. 92 H. 178, 989 P.2d 262 (1999).

Order called for by this section should be in form of a written order to show cause. 7 H. App. 95, 746 P.2d 574 (1987).

When prosecutor is necessary to bring charge for offense under section. 7 H. App. 298, 758 P.2d 690 (1988).

Factual specifications requirement may be satisfied if particular circumstances of the case are described in the district court's oral findings. 7 H. App. 586, 788 P.2d 176 (1990).

Contemnor has no standing to appeal under subsection (3)(a); judgment must be reviewed by extraordinary writ or special proceeding; attorney's tardy court appearance constitutes indirect contempt under subsection (3)(b). 9 H. App. 249, 833 P.2d 85 (1992).

Minor was properly adjudicated a law violator in a criminal contempt proceeding for failing to comply with rules of a protective supervision order. 96 H. 255 (App.), 30 P.3d 269 (2001).

Where there was no evidence that when defendant failed to appear in court defendant violated subsection (1)(g) by knowingly disobeying or resisting "the process, injunction, or other mandate of a court", defendant could not be convicted of criminal contempt of court under this section. 105 H. 274 (App.), 96 P.3d 603 (2004).

As the no-contact condition of defendant's probation sentence was not a "process, injunction, or other mandate of a court" that, if violated, was punishable as criminal contempt, but rather, was a condition placed on defendant for the privilege of being released into the community on probation rather than being imprisoned, the statutory prerequisites for a criminal-contempt conviction were not present in the case and this section was not applicable to convict defendant for criminal contempt for violating a term of probation. 120 H. 312 (App.), 205 P.3d 577 (2009).

Criminal contempt of court under this section is not available as a sanction for a violation of a condition of probation as there is no provision in chapter 706 that authorizes the use of criminal contempt as a sanction for violation of a condition of probation; the exclusive sanctions for a violation of a condition of probation in chapter 706 are set forth in 706-625. 120 H. 312 (App.), 205 P.3d 577 (2009).

Mentioned: 86 H. 214, 948 P.2d 1055 (1997).

 

__________

710-1077 Commentary:

 

1. Perkins, Criminal Law 456 (1957).

 

2. Prop. Mich. Rev. Cr. Code, comments at 420.

 

3. Perkins, supra at 462.

 

4. Whether the historical analysis was ever sound is subject to doubt. See Bloom v. Illinois, 391 U.S. 194, 198 note 2 (1968).

 

5. Article III, 2, of the Constitution provides that "[t]he Trial of all Crimes, except in cases of Impeachment, shall be by jury...." The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." The Fifth and Fourteenth Amendments forbid the federal government and the states from depriving a person of "life, liberty or property without due process of law."

 

6. United States v. Barnett, 376 U.S. 681, 692, rehearing denied, 377 U.S. 973 (1964). See also Green v. United States, 356 U.S. 165, 183-187 (1958), and the cases collected therein.

 

7. See note 6 supra.

 

8. 384 U.S. 373 (1966).

 

9. See note 4 supra.

 

10. 391 U.S. 216 (1968).

 

11. "It is old law that the guarantees of jury trial found in Article III and the Sixth Amendment do not apply to petty offenses. Only today we have reaffirmed that position. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L.Ed.2d 491 (1968)." Bloom v. Illinois, supra at 210.

 

12. Bloom v. Illinois, supra at 201-202.

 

13. Id.

 

14. United States v. Barnett, supra at 694 note 12.

 

15. In a note to Duncan v. Louisiana, 391 U.S. 145, 162 (1968), the Court said: "Cheff involved criminal contempt, an offense applied to a wide range of conduct including conduct not so serious as to require jury trial absent a long sentence. In addition criminal contempt is unique in that legislative bodies frequently authorize punishment without stating the extent of the penalty which can be imposed. The contempt statute under which Cheff was prosecuted, 18 U.S.C. 401, treated the extent of punishment as a matter to be determined by the forum court. It is therefore understandable that this Court in Cheff seized upon the penalty actually imposed as the best evidence of the seriousness of the offense for which Cheff was tried." (Emphasis added.) This explanation of the largely unstated reasoning in Cheff became, in an opinion decided the same day as Duncan, the "rule in Cheff." In Bloom v. Illinois, supra at 211, the Court said: "Under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense. See, ante, p. 503, n. 35." (Emphasis added.)

 

16. Duncan v. Louisiana, supra at 161.

 

17. See, e.g., Cheff v. Schnackenburg, see note 8 supra, which, however, set the maximum at six months not on the basis of constitutional principles, but on the basis of the Court's supervisory powers, and Dyke v. Taylor Implement Mfg. Co., see note 10 supra, which upheld a conviction for criminal contempt, notwithstanding the fact that the defendant was denied trial by jury, where the punishment was limited by statute to ten days' imprisonment plus fine.

 

18. Green v. United States, 365 U.S. 165, 193 (1958) (dissenting opinion); United States v. Barnett, supra at 724, (dissenting opinion); Cheff v. Schnackenburg, supra at 384 (dissenting opinion); Dyke v. Taylor Implement Mfg. Co., supra at 223 (dissenting opinion).

 

19. Compare Barnett, supra at 727 ("[I]f the present defendants committed the acts with which they are charged, their crimes cannot be classified as 'petty,' but are grave indeed."), and Cheff, supra at 387 ("[T]he determination of whether the offense is 'petty' also requires an analysis of the nature of the offense itself; even though short sentences are fixed for a particular offense a jury trial will be constitutionally required if the offense is of a serious character."), with Dyke, supra at 223 ("I am loath to hold whippings or six months' punishment 'as petty.' And here, where the offense is punishable by a $50 fine and 10 days in jail behind bars, I feel the same way. Even though there be some offenses that are 'petty,' I would not hold that this offense falls in that category.")

 

20. H.R.S. 729-1 ("Whoever, after trial by jury, is adjudged guilty of contempt of any court...shall be fined not more than $500 or imprisoned not more than two years....").

 

21. Id.

 

22. H.R.S. chapter 729.

 

23. See H.R.S. 729-1, which provides inter alia that one commits contempt "by publishing animadversions on the evidence or proceedings in a pending trial tending to prejudice the public respecting the same, and to obstruct and prevent the administration of justice; or by knowingly publishing an unfair report of the proceedings of a court, or malicious invectives against a court or jury tending to bring the court or jury, or the administration of justice[,] into ridicule, contempt, discredit or odium...."

 

24. See Perkins, supra at 461.

 

25. H.R.S. 729-1.

 

26. Id.

 

27. Id. 729-5.

 

28. Id. 729-2.

 

 

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