20230209_C360560_41_360560.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re CONTEMPT OF KATHY H. MURPHY.
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
February 9, 2023
Plaintiff-Appellee, 9:10 a.m.
v No. 360560
Wayne Circuit Court
KATHY H. MURPHY LC No. 19-005667-01-AR
Defendant-Appellant.
Before: M.J. KELLY, P.J., and BOONSTRA and SWARTZLE, JJ.
SWARTZLE, J.
A judge observes contemptuous behavior by an attorney in open court, but off the record.
The judge immediately holds a summary proceeding and finds the attorney criminally responsible.
The judge fails, however, to describe the attorney’s statements on the record, and on appeal, the
criminal-contempt conviction must be reversed for this reason. Does double jeopardy prohibit a
subsequent nonsummary proceeding on remand? As explained, the answer is No, and we affirm.
I. BACKGROUND
The underlying factual and procedural background was set forth in detail by the circuit
court on appeal from the district court, and we need not go into detail here. Before proceeding
further, however, a brief discussion about contempt proceedings will help guide our discussion.
“Contempt of court is a willful act, omission, or statement that tends to impair the authority
or impede the functioning of a court.” In re Contempt of Robertson, 209 Mich App 433, 436; 531
NW2d 763 (1995). Contempt can either be civil or criminal in nature. There is no dispute that
Murphy’s contempt was criminal in nature, and therefore we need not spend time with civil
contempt.
MCL 600.1711 defines when a court may use summary proceedings to punish
contemptuous behavior. “When contempt is committed in the immediate view and presence of
the court, the court may punish it summarily by fine, or imprisonment, or both.” MCL
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600.1711(1). This is called “direct contempt,” and this Court has explained that direct contempt
does not require “a separate hearing before the court imposes any proper sanctions because all
facts necessary to a finding of contempt are within the personal knowledge of the judge.” In re
Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 712; 624 NW2d 443 (2000) (cleaned up).
In sum, direct contempt can be resolved with a summary proceeding.
Logically enough, the alternative to direct contempt is “indirect contempt.” “If the
contemptuous conduct occurs outside the court’s direct view, i.e., it is ‘indirect’ contempt, the
court must hold a hearing to determine whether the alleged contemnor actually committed
contempt.” Id. at 712-713 (cleaned up). As our Legislature set forth in MCL 600.1711(2), “When
any contempt is committed other than in the immediate view and presence of the court, the court
may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by
affidavit or other method and opportunity has been given to defend.” This nonsummary
proceeding is akin to a criminal bench trial, and it is undisputed that double jeopardy applies to a
contempt conviction arising from such a proceeding. United States v Dixon, 509 US 688, 696;
113 S Ct 2849; 125 L Ed 2d 556 (1993). The primary question on appeal is whether double
jeopardy similarly applies to a contempt conviction arising from a summary criminal contempt
proceeding.
Returning to the facts of this appeal, Murphy and another attorney represented a criminal
defendant during a preliminary examination in district court. Murphy purportedly made
contemptuous statements in open court, but while the district court was off the record. The district
court judge immediately held a summary proceeding and found Murphy criminally liable for
contempt of court. The district court judge sentenced Murphy to several days in jail, but the judge
delayed the sentence for a few days so that the preliminary examination could proceed. Murphy
subsequently served her jail sentence.
Murphy appealed the contempt conviction to the circuit court. The circuit court heard oral
arguments and subsequently issued a thorough written opinion. The circuit court concluded that
the district court judge had abused her discretion because the judge “did not specify what happened
when making her factual findings.” Thus, it was “impossible for the [circuit court] to find that the
district court had sufficient evidence to hold Murphy in contempt.” The circuit court further
explained, “Here, the evidence does not support [the district court judge’s] findings. This is not
necessarily due to a lack of evidence; rather it is due to a lack of competent evidence.” The circuit
court reversed the district court, vacated Murphy’s contempt conviction, and remanded for a
nonsummary proceeding before a different district court judge.
In a motion for reconsideration, Murphy argued that remand for a nonsummary proceeding
would violate her constitutional right against being held twice in jeopardy. According to Murphy,
a reversal on appeal based on insufficient evidence is legally equivalent to an acquittal, and,
therefore, she could not be lawfully tried again on the same contempt charge. The circuit court
denied the motion, relying on two principle points—first, the reversal was not based on insufficient
evidence but rather insufficient findings by the district court judge, and second, the case law was
unclear whether double jeopardy applies in the context of a summary criminal contempt
proceeding.
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Murphy appealed to this Court by leave granted on the questions presented, In re Contempt
of Murphy, unpublished order of the Court of Appeals, entered May 2, 2022 (Docket No. 360560),
and we heard oral arguments on her appeal in early January 2023.
II. ANALYSIS
On appeal, Murphy claims that double jeopardy applies to summary criminal contempt
proceedings and, when a contempt conviction is reversed for insufficient evidence, double
jeopardy prohibits retrial for that same contemptuous behavior. Murphy’s claims involve
questions of constitutional law, and we review these de novo. People v Szalma, 487 Mich 708,
715; 790 NW2d 662 (2010).
A. DOUBLE JEOPARDY
The United States Constitution provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” US Const, Am V. Our Michigan Constitution
similarly provides that “[n]o person shall be subject for the same offense to be twice put in
jeopardy.” Const 1963, art 1, § 15. “We have interpreted our double-jeopardy provision
consistently with the federal provision.” People v Wafer, 509 Mich 31, 37; ___ NW2d ___ (2022).
“The prohibition against double jeopardy protects individuals in three ways: (1) it protects
against a second prosecution for the same offense after acquittal, (2) it protects against a second
prosecution for the same offense after conviction, and (3) it protects against multiple punishments
for the same offense.” Id. at 37-38. “This protection attaches once the defendant is put to trial
before the trier or fact, whether it be a jury or a judge.” People v Beck, ___ Mich ___, ___; ___
NW2d ___ (Docket Nos. 160668, 160669), slip op at 4, (2022).
B. CONSTITUTIONAL AVOIDANCE
Before reaching the primary question—does double jeopardy bar a nonsummary
proceeding on remand—we first consider whether we can avoid this question under the
constitutional-avoidance doctrine. People v McKinley, 496 Mich 410, 415-416; 852 NW2d 770(2014). Double jeopardy does, indeed, treat a reversal on appeal for insufficient evidence as legally
equivalent to an acquittal and, on that basis, double jeopardy bars retrial on remand. McDaniel v
Brown, 558 US 120, 131; 130 S Ct 665; 175 L Ed 2d 582 (2010). But, a reversal for a similar-but-
distinct reason, i.e., the conviction was against the great weight of the evidence, is not barred by
double jeopardy. See Tibbs v Florida, 457 US 31; 102 S Ct 2211; 72 L Ed 2d 652 (1982). Thus,
the precise ground on which reversal is based is a key matter for purposes of double jeopardy.
Here, the circuit court explained that there was not a lack of sufficient evidence supporting
Murphy’s contempt conviction, but rather a lack of sufficient competent evidence or, otherwise
described, a lack of sufficient findings. This is a rather fine line to draw, but it is understandable.
It is the rare instance when a judge holds a person in direct criminal contempt of court for behavior
that occurs in open court, but that behavior is not adequately described by the judge or otherwise
in the record. When contemptuous behavior occurs in open court but off the record, it is imperative
that the judge make an adequate record before holding the person in contempt, 17 Am Jur 2d,
Contempt, § 185, pp 642-644, and we agree with the circuit court that this was not done here.
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With that said, this circumstance is different than a bench trial, for example, where the
record has sufficient evidence in it to support a judge’s ultimate finding, but the judge fails to make
specific findings to justify that ultimate finding. Here, we literally have nothing in terms of what
was said, to whom it was said, in what tone and context it was said, etc. The record is bereft of
either evidence in the record or description by the district court judge. In other words, this record
arguably exhibits both insufficient evidence and insufficient competent evidence. In this
circumstance, we will err on the side of caution and proceed as if the reversal was based, at least
in part, on insufficient evidence.
There is case law in Michigan standing for the proposition that, when a contempt
conviction from a summary proceeding is reversed on appeal, the proper remedy is a remand for a
new, nonsummary proceeding. See In re Scott, 342 Mich 614; 71 NW2d 71 (1955); In re Meizlish,
72 Mich App 732; 250 NW2d 525 (1976). Yet, neither In re Scott nor In re Meizlish involved a
reversal for insufficient evidence. See In re Scott, 342 Mich at 617-618, 622; In re Meizlish, 72
Mich App at 740-741. Accordingly, precedent does not give us a more narrow ground on which
to stand, and therefore we turn to Murphy’s primary question on appeal—does double jeopardy
attach to a conviction from a summary criminal contempt proceeding?
C. DOUBLE JEOPARDY AND SUMMARY CRIMINAL CONTEMPT PROCEEDINGS
On this question, Murphy argues that courts have recognized that double jeopardy attaches
to a criminal contempt conviction arising from a nonsummary proceeding. Given that both types
of proceeding involve contemptuous behavior, and a criminal conviction can result from either
type of proceeding, Murphy makes the argument that double jeopardy must likewise extend to
summary proceedings as well. While her argument has some rhetorical weight, it ultimately fails.
Double jeopardy can indeed bar a subsequent criminal prosecution on the same charge for
the same conduct, though not in every circumstance. Broadly speaking, when a criminal
conviction is reversed on appeal, double jeopardy usually does not bar reprosecution. Bravo-
Fernandez v United States, 580 US 5, 18; 137 S Ct 352; 196 L Ed 2d 242 (2016). Trial errors can
result in a criminal conviction being reversed by an appellate court, with the remedy being a
remand for a new trial. See, e.g., People v Smith, 498 Mich 466, 487-488; 870 NW2d 299 (2015)
(remanding for new trial due to prosecutorial misconduct); People v Ramsey, 503 Mich 941; 921
NW2d 538 (2019) (remanding to this Court to determine whether the decision to grant a new trial
for a verdict against the great weight of the evidence was within the range of principled outcomes
of the trial court). Only in certain circumstances will jeopardy attach to a conviction reversed on
appeal; for example, a reversal based on insufficient evidence will preclude retrial, as mentioned
earlier. Thus, the mere fact that Murphy was criminally convicted, and that conviction was
reversed on appeal, does not, by itself, imply that double jeopardy must bar a nonsummary
proceeding on remand.
Moreover, while it is the case that both summary and nonsummary proceedings involve
the punishment of contemptuous behavior, the purpose and nature of the proceedings vary in
material ways. A summary proceeding is meant to address and punish contemptuous behavior
immediately. 17 Am Jur 2d, Contempt, §§ 1, 7, pp 468, 474. Judges must have some authority to
maintain order in their courtrooms separate from reliance on the political branches of government.
Id. § 153, p 598. As the U.S. Court of Appeals for the Seventh Circuit explained, “The need for
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the court to conduct its duties is the fundamental rationale underlying the court’s summary
contempt powers.” FTC v Trudeau, 606 F3d 382, 389 (CA 7, 2010).
Consistent with the purpose, the nature of summary proceedings is quite distinct from other
criminal proceedings. No charges are filed and no evidence is taken—the judge is, in a real sense,
the “victim, prosecutor, judge, and jury.” 17 Am Jur 2d, Contempt, § 189, p 649. In Trudeau, the
Seventh Circuit described the proceeding as follows:
The use of summary contempt power is proper only for charges of misconduct, in
open court, in the presence of the judge, which disturbs the court’s business, where
all of the essential elements of the misconduct are under the eye of the court, are
actually observed by the court, and where immediate punishment is essential to
prevent demoralization of the court’s authority before the public. [Trudeau, 606
F3d at 386 (cleaned up).]
This is consistent with Michigan law. MCL 600.1711(1); In re Scott, 342 Mich at 618-620.
Given the swiftness of conviction and lack of typical process, summary proceedings are
disfavored and can be used only in rare circumstances. Sacher v United States, 343 US 1, 8; 72 S
Ct 451; 96 L Ed 717 (1952). With that said, this procedure—unique in American criminal law—
has been justified because the judge observes the contemptuous behavior first-hand in open court.
In re Scott, 342 Mich at 618-619. Courts have consistently held that summary criminal contempt
proceedings satisfy due process. In re Contempt of Warriner, 113 Mich App 549, 554-555; 317
NW2d 681 (1982).
In contradistinction, nonsummary criminal contempt proceedings are much more akin to a
traditional criminal bench trial. This type of proceeding involves allegedly contemptuous behavior
that has occurred outside the judge’s direct observation in open court; for example, a party’s failure
to follow a court’s written order. See, e.g., In re Contempt of Henry, 282 Mich App 656, 673-677;
765 NW2d 44 (2009). The purpose of a nonsummary proceeding is different than a summary one,
as immediate correction and punishment are not required, and therefore more traditional due-
process protections can be observed, including the notice of charges, the assistance of counsel, and
a public hearing. Dixon, 509 US at 696. For these reasons, the U.S. Supreme Court held in Dixon
that double jeopardy applies to nonsummary proceedings; but at the same time, both Justice Scalia
(writing for the majority) and Justice White (writing in dissent) agreed that this did not imply that
double jeopardy extended to summary proceedings. Id. at 697 n 1 (Scalia, J, writing for the
majority); id. at 723 n 1 & 729 n 4 (White, J, dissenting).
This contradistinction highlights a key difference between the two procedures. One of the
purposes of the guarantee against double jeopardy is to protect a person from having to endure the
cost, uncertainty, embarrassment, and general harassment of multiple criminal trials on the same
charge for the same conduct. Blueford v Arkansas, 566 US 599,605; 132 S Ct 2044; 182 L Ed 2d
937 (2012); 21 Am Jur 2d, Criminal Law, § 269, p 405. In a summary proceeding, the person does
not participate in a criminal trial or quasi-trial proceeding. The judge takes the matter up
immediately, no evidence is taken or jury impaneled, and sentencing is swift (even if the
enforcement is slightly delayed so that court proceedings can conclude without further disruption).
This is in stark contrast to a regular criminal trial or a nonsummary criminal contempt proceeding,
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where matters can take days, weeks, months, and even years, evidence is gathered and submitted
to the court, etc. With a summary proceeding, in sum, there is no possibility of “the harassment
of successive trials.” United States v Rollerson, 449 F2d 1000, 1004 (CA DC, 1971).
Courts outside of this jurisdiction have relied upon this absence of successive trials in
holding that double jeopardy does not attach to a criminal conviction arising from a summary
contempt proceeding. See, e.g., Rollerson, 449 F2d at 1004; United States v Mirra, 220 F Supp
361, 366 (SDNY, 1963); Marino v State, 165 So 3d 60, 61 (Fla App, 2015); People v Totten, 143
Ill App 3d 132, 134; 491 NE2d 924 (1986); Commonwealth v Warrick, 344 Pa Super 611, 613;
497 A2d 259 (Pa App, 1985); State v Warren, 186 NJ Super 35, 44-45; 451 A2d 197 (NJ Sup Ct,
1982). There is some academic work that suggests that double jeopardy should apply to summary
proceedings, but in making the argument, the work downplays a court’s need to use its contempt
authority immediately. In one article, for instance, the author suggests that rather than being held
in criminal contempt in a summary proceeding, a recalcitrant criminal defendant can simply be
bound and gagged or jailed for civil contempt until such time that the defendant promises to
behave. Rudstein, Double Jeopardy and Summary Contempt Proceedings, 69 Notre Dame L Rev
691, 720 (1994). These and similar suggestions are belied by case law and decades, if not
centuries, of actual courtroom experience. See, e.g., Pounders v Watson, 521 US 982, 988-989;
117 S Ct 2359; 138 L Ed 2d 976 (1997); In re Terry, 128 US 289, 309; 9 S Ct 77; 32 L Ed 405(1888) (explaining that “a direct contempt is an open insult in the face of the court to the persons
of the judges while presiding, or a resistance to its powers in their presence”); see also Illinois v
Allen, 397 US 337, 344; 90 S Ct 1057; 25 L Ed 2d 353 (1970) (“Not only is it possible that the
sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant,
but the use of this technique is itself something of an affront to the very dignity and decorum of
judicial proceedings that the judge is seeking to uphold.”).
Accordingly, we join our sister jurisdictions in holding that summary criminal contempt
proceedings are not subject to the constitutional protections against double jeopardy. As compared
to regular criminal trials and nonsummary proceedings, summary proceedings serve different
purposes and, more importantly, are subject to materially different procedures. A person who is
held in criminal contempt in a summary proceeding has not been subject to the harassment of a
criminal trial. If the person is successful on appeal and has the conviction reversed, then remand
for a nonsummary proceeding before a different judge does not pose a risk of successive trials.
III. CONCLUSION
For these reasons, we conclude that if a criminal conviction for contempt of court from a
summary proceeding is reversed on appeal, double jeopardy will not bar the matter from being
taken up in a nonsummary proceeding on remand. The circuit court did not err in remanding this
matter for a nonsummary criminal contempt proceeding before a different district court judge. If
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Murphy is held criminally liable at the conclusion of the nonsummary proceeding, then the district
court will credit her for time served.
Affirmed.
/s/ Brock A. Swartzle
/s/ Michael J. Kelly
/s/ Mark T. Boonstra
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