Grable v. Brown
Grable v. Brown
Opinion of the Court
Appellant, Henry Joseph Dudzinski, appeals as of right from the trial court’s order finding him in contempt of court and sentencing him to twenty-nine days in jail. Although we conclude the trial court erred and infringed on appellant’s First Amendment right to free speech, we affirm the contempt order.
I. FACTUAL AND PROCEDURAL HISTORY
On May 30, 2000, appellant sat in the courtroom as a spectator during pretrial settlement discussions in Grable v Brown.
On April 12, 2001, appellant again wore the “Kourts Kops Krooks” shirt when he appeared as a spectator for a motion hearing in Estate of Grable. Before arguments began, the trial judge stated on the record that certain spectators were wearing inappropriate shirts and that they were disruptive of the proceedings. Defense counsel moved for the trial court to order appellant and the two other people wearing the shirts to remove their shirts or leave the courtroom. The trial judge found that the shirts affected the fair administration of justice and granted defendant’s motion. When the trial judge ordered appellant and the two other spectators to take off their shirts or leave the courtroom, appellant refused, stating that he was invoking his First Amendment rights. The other two spectators wearing the shirts complied with the court’s order. The trial judge gave appellant one more opportunity to comply with the order, but appellant
H. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision to hold a party or individual in contempt. In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 714; 624 NW2d 443 (2000). However, to the extent that our review requires us to examine questions of law, such as constitutional issues, our review is de novo. Id.; Thomas v Deputy Warden, State Prison of Southern Michigan, 249 Mich App 718, 724; 644 NW2d 59 (2002).
HI. APPELLANT’S FIRST AMENDMENT RIGHTS
Appellant argues that the trial court violated his First Amendment right to freedom of expression by
The United States Supreme Court has explained that “the right of free speech is not absolute at all times and under all circumstances,” and that certain well-defined and narrowly limited classes of speech are preventable and punishable. Chaplinski v New Hampshire, 315 US 568, 571-572; 62 S Ct 766; 86 L Ed 1031 (1942). Every citizen lawfully present in a public place has the right to engage in expressive activity and such activity may generally not be restricted on the basis of its content, but may be restricted if the manner of expression is basically incompatible with the normal activity of the particular place at the particular time. Grayned v City of Rockford, 408 US 104, 115-116; 92 S Ct 2294; 33 L Ed 2d 222 (1972). Speech or expression that is restricted because of the content
The state has a compelling interest in protecting a criminal defendant’s right to a fair trial, which is guaranteed by the Sixth Amendment of the United States Constitution. Where fair trial rights are at a significant risk, the First Amendment rights of trial spectators must be curtailed. Norris v Risley, 918 F2d 828, 832 (CA 9, 1990). However, the content of speech in a courtroom may only be restricted if it constitutes an imminent threat to the administration of justice. Eaton v Tulsa, 415 US 697, 698; 94 S Ct 1228; 39 L Ed 2d 693 (1974).
The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil. . . . [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. [Craig v Harney, 331 US 367, 376; 67 S Ct 1249; 91 L Ed 1546 (1947).]
“Criticism of the courts within limits should not be discouraged and it is a proper exercise of the rights of free speech and press. Such criticism should not subject the critic to contempt proceedings unless it
Whether the threat to the impartial and orderly administration of justice must be a clear and present or a grave and immediate danger, a real and substantial threat, one which is close and direct or one which disturbs the court’s sense of fairness depends upon a choice of words. Under any one of the phrases, reviewing courts are brought in cases of this type to appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes. [Pennekamp v Florida, 328 US 331, 336; 66 S Ct 1029; 90 L Ed 1295 (1946).5 ]
If the speech posed a serious and imminent threat to a fair trial, the First Amendment rights must bow to the constitutional right to a fair trial. Norris, supra at 832.
Appellant argues that the trial court erred in ordering him to take off his shirt or leave the courtroom because the statement on his shirt was protected speech under the First Amendment. We agree that the trial court’s order was erroneous under the circumstances of this case. The trial court relied on In re Contempt of Warriner, 113 Mich App 549; 317 NW2d 681 (1982), remanded 417 Mich 1100.26 (1983), to support its conclusion that appellant’s behavior was not constitutionally protected because it affected the fair administration of justice. However, Warriner does
A case dealing with a First Amendment issue that is more analogous to the present case is Norris, supra. In Norris, supra at 829, the petitioner was charged as a criminal defendant for a sexual offense. At his arraignment, approximately fifteen spectators ap
The West Virginia Supreme Court came to a similar conclusion. In West Virginia v Franklin, 327 SE2d 449, 451 (W Va, 1985), the defendant was on trial for driving under the influence of alcohol, resulting in death. During his trial, between ten and thirty demonstrators for the organization of Mothers Against Drunk Drivers (madd) appeared in the courtroom wearing buttons reading “madd” in capital letters. Id. at 454. The demonstrators sat directly in front of the jury prominently displaying their madd buttons. Id. The West Virginia Supreme Court reversed the defendant’s conviction and granted the defendant a new trial after concluding that the spectators with their buttons constituted “a formidable, albeit passive, influence on the jury.” Id. at 455.
In In re Frankel, 165 AD2d 382; 567 NYS2d 1018 (1991), the Appellate Division of the Supreme Court of New York reviewed a New York trial court’s order requiring attorneys wearing “Ready to Strike” buttons to remove them while in a nonjury courtroom or be found in contempt. While the appellate court recognized that the trial court had the inherent power to require order in the courtroom, it also concluded that an individual’s First Amendment rights could not be “limited or subordinated in his freedom of expression to anything less than the absolute requirement to prevent the obstruction of justice.” Id. at 384. In concluding that the buttons presented no serious or imminent threat to the administration of justice, the appellate court found it significant that there was no jury present to be influenced one way or the other by the presence of the buttons or their message. Id. at 385-386. Once again, In re Frankel is similar to the present case in that it involved a written political statement in a courtroom. In re Frankel is also more similar to the present case than Risley and Franklin in that the
Applying the applicable constitutional law, we conclude that appellant’s behavior did not present a serious and imminent threat to the fair administration of justice. The statement on appellant’s shirt, “Kourts Kops Krooks,” appears to compare courts and police officers to the Ku Klux Klan and imply that they are corrupt “crooks.” Because the underlying case involved allegations of police brutality, the message on appellant’s shirt related to the issues in the underlying case. It appears that the trial court ordered appellant to leave the courtroom because of the specific content of the shirt rather than the fact that the shirt contained a political message. Because the trial court restricted the content of appellant’s expression, it needed a substantial or compelling governmental interest for doing so. Although the message on appellant’s shirt appeared to criticize the integrity of the court and one of the parties in the underlying case, appellant’s conduct and the message on his shirt did not unduly affect either party’s right to a fair trial. Appellant was sitting in the courtroom quietly and was not disturbing the proceedings. He was not with a large group, but was with only two other people wearing the same or similar shirts. Most importantly, appellant wore the shirt as a spectator at a pretrial
“Trial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Brown v United States, 356 US 148, 153; 78 S Ct 622; 2 L Ed 2d 589 (1958). In this case, the trial court failed to distinguish between the two. Although appellant’s shirt may have been insulting to the trial court and to one of the parties in the underlying case, it did not affect either party’s right to a fair trial. “Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Craig, supra at 376. A trial court may not impinge on the First Amendment rights of a courtroom observer on the basis of a mere offense to its sensibilities or those of one of the parties. We conclude that the statement on appellant’s shirt was constitutionally protected political speech that did not constitute an imminent threat to the administration of justice and that the trial court erred in ordering appellant to remove his shirt or leave the courtroom.
W. THE CONTEMPT ORDER
Notwithstanding our conclusion regarding the constitutionality of the trial court’s order to remove the shirt or leave the courtroom, the ultimate question before this Court is whether the trial court abused its discretion in finding that appellant was in criminal contempt for disobeying the court’s order. We con-
The supreme court, circuit courts, 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 to its authority.
(b) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings.
Imprisonment for criminal contempt is appropriate where a defendant does something he was ordered not to do. People v Ahumada, 222 Mich App 612, 617; 564 NW2d 188 (1997). Contempt committed in the immediate view and presence of the court may be punished summarily by fine, imprisonment, or both. MCL 600.1711(1); Ahumada, supra at 618. Punishment for contempt is appropriate when it is “required
The court’s power to punish individuals for contempt is not without limitations. “The contempt power is awesome and must be used with the utmost restraint.” In re Hague, 412 Mich 532, 555; 315 NW2d 524 (1982). The courts have the responsibility to apply the contempt power judiciously and only when the contempt is clearly and unequivocally shown. In re Contempt of Auto Club Ins Ass’n, supra at 708. “ ‘The limits of the power to punish for contempt are the least possible power adequate to the end proposed.’ ” People v Kurz, 35 Mich App 643, 656; 192 NW2d 594 (1971), quoting Harris v United States, 382 US 162, 165; 86 S Ct 352; 15 L Ed 2d 240 (1965). Specifically, the United States Supreme Court recognized that a state’s power to punish for contempt is limited by the extent of protection afforded by the First Amendment. Pennekamp, supra at 336.
The United States Supreme Court addressed the issue of criminal contempt for in-court statements regarding judicial bias in In re Little, 404 US 553, 554; 92 S Ct 659; 30 L Ed 2d 708 (1972). In In re Little, supra at 554, the trial court found the petitioner, a pro se criminal defendant, in contempt for stating, following the close of the evidence, that the judge was biased and had prejudiced the case and that the petitioner was a political prisoner. The Supreme Court reversed the judgment against the petitioner, concluding that petitioner’s statements at trial did not constitute criminal contempt because the petitioner did not speak loudly, act boisterously, disobey a valid court order, or in any other way disrupt the court proceeding. Id. at 555-556. The Court explained that
In the present case, appellant willfully disobeyed the trial court’s order to remove his shirt or leave the courtroom. Appellant was on notice and understood what the trial court was ordering him to do, but still refused to obey the order. The trial court found appellant in contempt only after having given him several chances to obey its order. “A party must obey an order entered by a court with proper jurisdiction, even if the order is clearly incorrect, or the party must face the risk of being held in contempt and possibly being ordered to comply with the order at a later date.” Kirby v Michigan High School Athletic Ass’n, 459 Mich 23, 40; 585 NW2d 290 (1998). “Violations of an order are punishable as criminal contempt even though the order is set aside on appeal or though the basic action has become moot.” United States v United Mine Workers of America, 330 US 258, 294; 67 S Ct 677; 91 L Ed 884 (1947) (citation omitted). Imprisonment for criminal contempt is
V. PROPORTIONALITY OF APPELLANT’S SENTENCE
Appellant also argues that his sentence of twenty-nine days in jail was disproportionately high. However, appellant has fully served his twenty-nine-day sentence. “Where a subsequent event renders it impossible for this Court to fashion a remedy, an issue becomes moot.” People v Rutherford, 208 Mich App 198, 204; 526 NW2d 620 (1994). Because appellant has already served his sentence, we conclude that this issue is moot. Id.
Affirmed.
In Grable v Brown, Wayne Circuit Court, Docket No. 99-906156-NO, the personal representative of the estate of a decedent brought a suit against a Detroit police officer who fatally shot the decedent.
Appellant was also wearing a button that read something to the effect of “Stop police brutality. Wear black October 22nd.”
The hearing transcripts give several slightly different readings of appellant’s shirt. At the May 30, 2000, hearing, the trial judge indicated that appellant’s shirt read: “Kourt Kops Krooks” or “Kourts, Kops and
Because appellant fully served his jail term, his appeal is arguably moot. People v Rutherford, 208 Mich App 198, 204; 526 NW2d 620 (1994). However, this Court will consider questions that are moot, but involve issues of public significance and are likely to recur, yet evade judicial review. People v Kaczmarek, 464 Mich 478, 481; 628 NW2d 484 (2001). The present issue is significant because it involves courtroom spectators’ First Amendment rights to express themselves. This issue is likely to recur because appellant or others may want to wear clothing bearing political messages in a courtroom in the future, yet it is likely to evade judicial review because many courtroom spectators will either merely obey the trial judge’s order to leave the courtroom or will not obtain judicial review until their contempt of court sentences are served. Thus, we will address the merits of this appeal.
Pennekamp involved a question of when, if ever, the press may be held in contempt subsequent to publication of certain material.
Our Supreme Court reduced the defendant’s punishment to five days’ confinement. In re Contempt of Warriner, 417 Mich 1100.26 (1983).
As it relates to the order of contempt in this case (discussed in Part w), the present case differs from In re Frankel in that appellant violated a direct order of the court to take off his shirt or leave the courtroom. In In re Frankel, the petitioners did not violate the supreme court justice’s order, but challenged its legitimacy in the appellate court.
On May 3, 2001, Cornell Squires filed a complaint for habeas corpus on appellant’s behalf, which this Court denied. Squires v Wayne Co Sheriff, unpublished order of the Court of Appeals, entered May 4, 2001 (Docket No. 234097). A person may file a complaint for habeas corpus in order to release a prisoner from illegal confinement. However, appellant was not illegally confined because, as discussed, the criminal-contempt order was valid. Instead of filing a complaint for habeas corpus, appellant’s proper avenue for relief was to apply for leave to appeal the trial court’s order that he remove his shirt or leave the courtroom.
The trial court also has the power to suspend, modify, restore, or grant an injunction during the pendency of an appeal if an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction. MCR 2.614(C).
Reference
- Full Case Name
- In re CONTEMPT OF DUDZINSKI. GRABLE v. BROWN
- Cited By
- 2 cases
- Status
- Published