There are two different kinds of contempt that judicial officials may impose: civil and criminal. Civil contempt is imposed when a person has not complied with a court order and is a measure to compel the person to do as the order states. For example, if a person does not pay court ordered child support, a judge may find the person in civil contempt and imprison them until they pay as ordered. Civil contempt is not divided between direct and indirect contempt. The failure to comply with a court order, whether that occurs in the judicial official’s presence or not, can constitute civil contempt. Criminal contempt is imposed in response to a person’s actions that disrupt court proceedings, show disrespect, or violate a court order, and in contrast with civil contempt, is divided between indirect criminal contempt and direct criminal contempt. As judicial officials, magistrates have the authority find a person in contempt, but that authority is limited to direct criminal contempt. Read on for more about this contempt authority and procedure for magistrates.
Criminal contempt. The exclusive grounds for behavior that constitutes criminal contempt are listed in G.S. 5A-11. There are twelve categories of criminal contempt listed in separate subdivisions. Among them, the first four are most relevant for magistrates.
Interruption. It is criminal contempt to commit willful behavior during a court proceeding and directly tending to interrupt that proceeding. G.S. 5A-11(a)(1). An example would be a defendant continually interrupting a magistrate during an initial appearance when the magistrate is attempting to advise the defendant of the charges against them.
Disrespect. It is criminal contempt to commit willful behavior during a court proceeding, in the immediate view and presence of the court, that directly tends to impair the respect due the court. G.S. 5A-11(a)(2). An example would be a litigant in a small claims action demeaning a magistrate with comments and insults.
Disobedience. It is criminal contempt to willfully disobey, resist, or interfere with a court’s lawful process, order, directive, instruction, or execution. G.S. 5A-11(a)(3). An example would be a defendant not turning over their cell phone during an initial appearance after being ordered to do so pursuant to a search warrant.
Refusal to be sworn or answer. It is criminal contempt to willfully refuse to be sworn or affirmed as a witness, or once sworn, to refuse to answer any legal and proper question when the refusal is not legally justified. G.S. 5A-11(a)(4). An example might be a witness in a small claims action refusing to cooperate or answer questions without relying on a claim of privilege or confidentiality.
Willfulness. Behavior must be willful to amount to criminal contempt. G.S. 5A-12(b) requires, for the four circumstances listed above, that the behavior must be either “willfully contemptuous” or preceded by a clear warning by the court that the conduct is improper. Willfully contemptuous conduct is conduct that, by its nature, is clearly intended to interrupt, demean, or obstruct the court as prohibited by G.S. 5A-11. For example, highly egregious behavior like spitting at the magistrate or violently throwing a chair would amount to willfully contemptuous behavior. In other circumstances, it may not be as clear if a person’s intent is to convey a bad-faith disregard for the court, such as if a person is interrupting the magistrate or using profane language. When behavior is not clearly “willfully contemptuous,” it must be preceded by clear warnings by the court before it may be considered criminal contempt. So in our examples, the individual interrupting the court or using profane language may only be held in criminal contempt if their behavior is coming after they have been given a clear warning by the magistrate to stop the behavior. When possible, providing a warning before finding a person’s behavior constitutes criminal contempt satisfies G.S. 5A-12(b) and avoids later questions into whether the behavior was willfully contemptuous.
Intoxication. In the context of first appearances, people may be very intoxicated when they are brought before the magistrate. While they may interrupt or obstruct the proceedings, or otherwise behave in a manner that appears contemptuous, it’s possible their intoxication prevents them from forming the requisite mental state for criminal contempt. G.S. 15A-511(a)(3) permits magistrates to delay initial appearances when a person is too intoxicated or unruly for the proceeding to continue. When a person is intoxicated to that extent, delaying the initial appearance removes intoxication as a complicating factor in assessing whether a person’s behavior amounts to criminal contempt.
Direct or Indirect. Once behavior is determined to be criminal contempt, the next determination is whether it amounts to direct or indirect criminal contempt. Direct and indirect criminal contempt are defined by G.S. 5A-13. This is an important distinction because magistrates are only authorized to impose direct criminal contempt (G.S. 7A-292(a)(2)).
Criminal contempt must meet three requirements before it may be considered direct criminal contempt. Any other criminal contempt that does not meet the requirements for direct criminal contempt is indirect criminal contempt. The three requirements for direct criminal contempt are:
- The behavior is committed within the sight or hearing of the presiding judicial official,
- The behavior is committed in, or in immediate proximity to, the room where proceedings are being held before the court, and
- The behavior is likely to interrupt or interfere with matters before the court.
Only when all three of these conditions are met will criminal contempt meet the definition for direct criminal contempt. The case In re Paul, 84 N.C. App. 491 (1987) provides an example of this distinction. In this case, there were two instances of criminal contempt by interrupting court proceedings (the first subdivision for criminal contempt described above). Here, an attorney coached a spectator to attempt to disrupt a trial by standing up and yelling in protest. The attorney’s conduct leading to the interruption took place outside of court, before the trial, and was therefore treated as indirect criminal contempt. The spectator’s conduct causing the interruption took place in court, during the trial, and therefore the conduct constituted direct criminal contempt.
Summary or plenary. Once behavior has been determined to be criminal contempt, and determined that it is direct criminal contempt rather than indirect, the magistrate must determine whether to initiate summary or plenary proceedings.
Plenary proceedings are conducted at a later date before a district court judge. When a person engages in potential direct criminal contempt before a magistrate, the magistrate may issue a court order for that person to appear before a district court judge to show cause why they should not be held in contempt of court. Magistrates may elect to initiate plenary proceedings when it is not necessary to respond immediately to the potentially contemptuous behavior or if they feel they have become too personally involved to decide the contempt impartially. Plenary proceedings may also be used when the behavior is so belligerent or disruptive that it is not possible in the moment to initiate a summary proceeding. Plenary proceedings may be ordered by completing AOC-CR-219. If the magistrate has probable cause that the person will not voluntarily appear for the plenary proceeding, the magistrate may issue an order for arrest to keep the person in custody. If the magistrate elects to do so, the person is entitled to conditions of release and entitled to counsel if they are indigent (G.S. 5A-16).
Summary proceedings are immediate, on-the-spot responses to the behavior constituting direct criminal contempt. Magistrates may only initiate summary proceedings “substantially contemporaneously” with the behavior when necessary to restore order or maintain the dignity or authority of the court. If the proceeding is not substantially close in time to the behavior, or if the proceeding is not necessary in order to restore order or maintain the dignity of the court in the moment, the magistrate should initiate plenary proceedings instead.
Summary proceeding procedure. When a magistrate has determined the best way to proceed is with a summary proceeding, the magistrate must take the following steps in conducting the hearing:
- Inform the person that they are being charged with direct criminal contempt.
- Inform the person that direct criminal contempt may be punished by up to 30 days in jail, up to $500 in fines, and/or censure.
- Give the person an opportunity to respond to the charge.
While it is possible the person may not avail themselves of the opportunity to respond to the charge of contempt, due process and G.S. 15A-14 require the magistrate to provide them the chance. As a summary opportunity to respond, the person is not entitled to counsel. Only after notifying the person of the proceeding, possible consequences, and giving them a chance to respond may the magistrate proceed to making findings. The standard for direct criminal contempt is beyond a reasonable doubt. If a magistrate finds beyond a reasonable doubt that the person willfully committed direct criminal contempt, they must record those findings on AOC-CR-390 and may then proceed to determining punishment.
Punishment. For the four grounds establishing direct criminal contempt described above, the available punishments are imprisonment for up to 30 days, a fine of up to $500, and/or censure (for more on punishments authorized for other forms of direct criminal contempt, see G.S. 5A-12). Censures are professional reprimands and are rarely imposed on individuals who are not attorneys. In determining the appropriate punishment, the magistrate may elect imprisonment, a fine, or any combination of the two. At any time after imposing punishment, the magistrate may terminate or reduce the fine or length of imprisonment (G.S. 5A-12(d)). The person held in contempt also has a right to appeal.
Appeal. A magistrate’s determination of contempt may be appealed for a hearing de novo before a superior court judge. If the magistrate imposed confinement as part of the punishment, the person may not be held for more than 24 hours without a bail determination by a district court judge. If a district court judge has not set conditions of release in that time, then a magistrate may set conditions (G.S. 5A-17).
Contempt by juveniles. The procedure and available punishments are different for contempt by juveniles. The grounds for contempt and burden of proof are the same as discussed earlier. One key difference is that if the magistrate elects to initiate a summary proceeding, they must appoint an attorney to represent the juvenile and allow the attorney an opportunity to confer with the juvenile.
Another difference is that the punishments authorized for contempt by a juvenile are detention in a juvenile detention facility for up to five days, up to 30 hours of community service, and/or any evaluation to determine the needs of the juvenile (G.S. 5A-32(c)). Just as in contempt proceedings for adults, the magistrate may terminate or reduce the punishment imposed at any time. The magistrate may orally order the juvenile to be detained to the extent necessary to ensure their appearance at contempt proceedings, and any appeal from finding a juvenile in contempt is to the Court of Appeals (G.S. 5A-32(e)).
As always, feel free to reach out to me with any questions or comments. I can be reached at elrahal@sog.unc.edu.
