What To Do:

There are numerous Statutes in Virginia that reference the enforceability of prior Court Orders and Contempt proceedings. Specifically, Virginia Code Section 16.1–69.24 indicates that a Judge of a District Court shall have the same powers and jurisdiction as a Judge in the Circuit Court to punish summarily for contempt, but in no case shall the fine exceed $250.00 nor may the imprisonment exceed 10 days for one contempt citation. Additionally, such fine and sentence shall be appealed as a matter of right, within the period described in the Code, which is 10 calendar days, to the Court designated for the Appeal. The Circuit Court shall conform in all respects to the provisions of Virginia Code Section 18.2–456–459. This Code Section has been in effect since 1972 in similar form and it does give the Court the Statutory power to carry out the general provisions in the Virginia Code. The case of Hanson v. Commonwealth, April I, 1997, sets the standard fo what evidence is sufficient to find a litigant in contempt of Court. The evidence in this case was sufficient to find that the defendant willfully disobeyed a Court Order, indicates that the standard should be a willful disobeyance of the Court Order, not an inadvertent disobeyance of the Court's Order. The evidence for the litigant to be found in Contempt of Court again is to show that it was a willful or intentional disobeyance or violation of the Court Order. Additionally, Virginia Code Section 16.1– 69.25 allows for a Judge in a District Court, within the scope of their general jurisdiction in the area to which the Court serves, to issue warrants, summons and subpoenas, including subpoena duces tetlims or other process in civil, traffic and criminal cases to include fugitive warrants and conduct proceedings thereon in accordance with the provisions. Additionally, Virginia Code Section 16.1– 69.25 allows for a Judge in a District Court, within the scope of their general jurisdiction in the area to which the Court serves, to issue warrants, summons and subpoenas, including subpoena duces tetlims or other process in civil, traffic and criminal cases to include fugitive warrants and conduct proceedings thereon in accordance with the provisions. This discretionary and summary authority of a Judge in the District allows for these processes to be issued within the jurisdiction of the Court only.

Virginia Code Section 16.1–279.1 which deals with Protective Orders in cases of family abuse allows for the Court, in its discretion, to enter orders to include any relief necessary for the protection of a petitioner and family member or household members of the petitioner and a Protective Order that is issued pursuant to these Code Sections can also allow for a temporary custody or support Order. A Protective Order issued in this regard can only be issued for a specific period of time or as otherwise authorized by law. Any violation of such Protective Order, whether entered exparte or after notice to all parties, shall constitute contempt of Court. Please see subsection © of the aforesaid Statute. The Court may also assess costs and fees to either party, even if the Protection Order is entered after a full hearing.

Virginia Code Section 16.1–253.2 speaks specifically of violations of any provisions of a Protective Order. In addition to any other penalty provided by law under the genera! contempt Statute previously cited for other criminal sanctions, any person who violates any provision of a Protective Order issued under Virginia Code Section 16.1–253,253.1, 253.4, 278.14 and 279.1 or subsection B of Virginia Code Section 20-103, shall be punishable as contempt of Court and is guilty ofa Class 1 misdemeanor. Punishment for any persons committing a second offense, within 5 years of a prior conviction, when either the instant offense or prior offense was based on an act or threat of violence, shall include a mandatory minimum term of confinement of 60 days. If a person is convicted of a third offense of violating a Protective Order.. when the first offenSe is comnutted within 20 years of the first conviction is guilty of a Class 6 felony. Said punishment shall include a mandatory miilimum of 6 months jail time.

These penalties are harsh obviously, and I had a case where my client made four separate violations of a Protective Order on the same day, and faced a Class 6 felony with mandatory minimum term of jail time for 6 months. Despite an Order not to contact his wife, he texted her to say happy birthday, he sent her a happy birthday card by mail, left her a voice mail message saying happy birthday and he also sent her flowers. Those four violations, if convicted of each, could constitute a Class 6 felony with a mandatory jail term of at least 6 months. Fortunately, the Juvenile Court saw the wisdom of my argument and found my client guilty of only one (1) violation which resulted in my client only doing one weekend in jail. Again, the first violation of a protective order is a Class I misdemeanor, punishable by up to 12 months in jail and also a $2,500.00 fine, but can also be summarily disposed of with a fine less then $250.00 and 10 days in jail for the violation, under the general contempt Statute.

More importantly, Virginia Code Section 16.253.2 states that upon conviction of any offense hereunder for which a mandatory minimum term of jail time is not specified, the person shalI serve a term of confinement and in no case shall the entire terms imposed be suspended. The Court shall also enter a Protective order, pursuant to Virginia Code Section 16.1-279.1 for a certain period, no to exceed two years from the date of conviction. In other words, any conviction of a violation of the provisions of a Protective Order, will result in some incarceration.

Virginia Code Section 16.1–292 indicates what happens to a person who violates a Court Order, entered by the Juvenile Court. It states that the Court, in addition to the powers under that Code Section, also may have power to punish summarily for contempt acts as set forth in Virginia Code Section 18.2–456. In other words, the Court can summarily punish on general contempt Code Section and charge a $250.00 fine or less but also after Notice and opportunity to be heard, hold a second proceeding to the same offense, and order punishment of up to 10 days in jail or put a juvenile in a detention facility. If a person was a Juvenile at the time of the offense, but 18 at the time of disposition, the Judge may order confinement in jail, under this Code Section.

Additionally, upon conviction of any verdict of contempt of Court in failing or refusing to comply with an Order of the Juvenile Court for support, the Court may commit and sentence a party to confinement injail, workhouse, city farm or work squad for an undetermined period or further Order of the Court. The Court can set a fixed period, not to exceed 12 months injail, or it can set the disposition off'for an undetermined period, not to exceed 12 months injail or continue the matter until further Order of the Court. Generally, the Court will enter a purge clause pursuant to the Statutory Authority under Subsection B of the Virginia Code 16.1–292. The Code further states that the contempt power of the Court is not limited against adults, but the Court is limited with respect to a child Vlolatirig the terms of an Order of the Court. It goes on to say that this limitation can not be construed to deprive the Court of its power to punish a child summarily for contempt set forth in Virginia Code Section 18.2- 456 or punish a child for contempt of violation of a dispositional order in a delinquency proceeding after notice and a hearing regarding contempt. The Court may also find that the child is in need of services and if they find that the child has willfully or materially violated for a second of time, the Court shall find the Court in need of services for any willful or material violation of an Order of the Court. A child may be taken to foster care, group home or other nonsecure residential facility. The Court has the authority to suspend the child's motor vehicle license for an indefinite period of time.

A violation of a Protective Order is a Class 1 misdemeanor, if the violator or defendant is an adult. Pursuant to Virginia Code Section 18.2–60.4, any person who violates the provisions of a Protective Order issued in a stalking case, is also guilty of a Class 1 misdemeanor. If convicted, the Code states that the Court shall, in addition to the sentence imposed, enter a protective Order Tor a specific period not to exceed two years from the date of conviction. In other words, in both instances stated above, the Court has no discretion in whether or not it shall extend a protective order for up to two years, it only has the discretion to determine the duration or term of the proactive order.

Finally, Virginia Code Section 18.2–456 speaks in situations where the Courts may issue attachments for contempt and punishment summarily, but it limits the types of cases that the Court has that authority to do so. The Court can only issue a summary contempt proceeding for misbehavior in the court or so near thereto that it would obstruct or interrupt the administration for justice; (2) for violence, threats of violence to a Judge or officer of the Court, to include juror, witness or party going to or returning from Court for any court proceeding; (3) any vile, contemptuous or insulting language to a Judge in Court on in a Judge's presence intended for his hearing; (4) misbehavior of an officer of the Court; and (5) disobedience or resistance of an officer of the Court, juror, witness, etc. or other person to any lawful process. No Court shall without a jury, for any such contempt as is mentioned in the first class stated in Virginia Code Section 18.2–456 impose a fine not exceeding $250.00 or jail time of 10 days. However in the case of a jury, the Court may, ascertain the fine or jail time proper to be inflicted and may give judgment according to the jury verdict.

In Virginia Code Section 18.2–458, a District Court judge shall have the same power as a Judge of the Circuit Court.

Virginia Code Section 19.2–11, indicates the proper procedure to be followed in contempt cases and states specifically that no Court or Judge shall impose a fine upon a juror, witness or other person for disobedience of its process or any contempt, unless that person is present in Court at the time of such sentence. If not, it shall be served upon said person with the Rule and notice of a certain time for him to Show Cause why a fine shall not be imposed or other disposition that the Court deems proper. Virginia Code Section 19.2–276, indicates that if a witness who was summoned to appear in Court or grand jury fails to appear without good cause to attend, shall be punishable as provided for in other Code Sections.

Fortunately, most of the Summary contempt proceedings do require the party to be present before punishment can be inflicted on the alleged violator. No Court shall remit any fine or penalty except for contempt. The Court shall have the authority to set aside a judgment or verdict and set a new trial in any contempt proceedings.

Other Virginia Code Sections dealing with contempt are Virginia Code Section 20–66, which relates to what happens if a person is summons as a witness and fails to appear without reasonable cause, it states that the witness will be found in contempt of Court. If the Court makes that disposition, the Court may proceed with the trial of the case in the witness absence and enter a Judgment or continue the case to a future date.

I believe I have discussed and included all Virginia Code Sections that I have found in reference to contempt of Court.

What Not to Do:

A good friend of mine and one of the best trial lawyers that I have ever met told me of a fact situation years ago that resulted in him telling the Court, in response to a question from the Judge, as to whether or not the lawyer thought he was in contempt of Court by stating to the Court that the “Court could not measure my contempt in these proceedings.” I have attempted to use that on one occasion and I would advise you not to. You should mumble that to yourself if you feel the need. It is best not to start any statement with the Court that you believe will probably be contemptuous with the statement "all due respect" nor is it proper to under mind or refuse to comport with the dignity and respect that all Judges deserve as an officer of the Court and as a litigant. I also recently had a client who was an African American refer to a Richmond Circuit Judge as a "colored Judge". Fortunately, that individual Judge had a wonderful sense of humor and countered by asking what color I was, all to the great dismay of me and opposing counsel. My client then spoke with the Judge for approximately 5 minutes in a similar fashion and of course, the Judges good humor diffused the situation. I do believe it is important that all of us consider the dignity and respect that the Court deserves in every aspect of trying a case. It also concerns me that some of the Judges do not control, in my opinion, the banter back and forth between counsel. Judge Farmer, who is now retired, had the best demeanor of any sitting Judge that I have ever experienced. He would repeatedly instruct counsel not to banter back and forth, and he insisted that counsel only speak directly to the Court, without speaking directly to each other. I do believe that this is a proper approach to eliminate that type of disrespect and misconduct that occurs somewhat frequently in litigation matters.

Obviously, a Court Order is an obligation that should be taken seriously, and I have understood repeatedly, that some lawyers actually advise their client not to follow a Court Order of visitation or child support, which I believe is bad advice and inappropriate advice and should result in most cases with the Court finding the lawyer in contempt of Court for that advice. I have had cases where counselors of the children have advised mothers not to allow visitation, rather than to have them go back to Court and ask the Court to change visitation before they instruct the client to specifically violate a Court Order. Because of the discussions earlier in this outline, the Court has substantial authority to punish this type of advice and it should not be given by any lawyer nor should it be given by any other person without punishment. The Attorney General has issued an opinion on the application of Virginia Code Section 53.1–116 in contempt proceedings. In reference to good conduct credit awarded persons confined to a local jail for contempt of Court for failure to pay court order support payments. Specifically, Virginia Code Section 53.1–116(a) states that the length of a legislative prisoner's sentence of 12 months or less in jail for misdemeanors shall earn good conduct credit to reduce the length of their time served in prison. Obviously, it states that it is contempt, and that in a civil contempt preceding the contemptor must be in a position to purge himself of contempt because if in a civil contempt preceding the punishment is remedial, imprisonment for civil contempt would need to be purged if possible. The person confined must have the ability to effect a release from incarceration by purging himself of contempt at any time during the sentence that is issued. However, the Court may impose a punishment for failure to comply with a Court Order and if the only option through the Court is confinement, the person in violation would not be able to purge himself from contempt. Accordingly, the Attorney General with the Sheriff or local jail authorities shall determine whether a person detained is pursuant to a civil or criminal contempt finding, and good time credit shall only be awarded to those persons serving criminal contempt sentences to receive good conduct credit described in Virginia Code Section 53.1–116(a). I have read almost every case I could find in reference to contempt of Court, and I will cite some of those cases for your consideration.

The case of Gilman v. Commonwealth 275 Va. 222, a 2008 case considered by the Supreme Court of Virginia on Appeal discusses the Circuit Court's adjudication of a petty contempt conviction on Appeal from the Juvenile and Domestic Relations District Court. The issue there was to determine whether the contemptor had a Sixth Amendment right of confrontation that was violated when the Circuit Court admitted into evidence, under Code 18.2–459, the certificate of the District Court Judge reciting the factual circumstances underlying the contempt or adJuaication previously. The Court discusses a petty contempt proceeding, indicating that it may be by direct or indirect evidence and is punishable under a Statute that authorizes no more than six months in prison. It also may be subject to summary adjudication. The Court also addresses the Sixth Amendment right of confrontation and the import of Virginia Code Section 16.1–69.24, which provides for Appeals from summary contempt adjudication in the District Court. The Court determined that because of the application and provisions of that Code Section that Virginia Code Section 16.1–69.24 and Section 18.2–1259 prevail over general provisions cited in Virginia Code Section 16.1–132 through 136, with a conclusion that a contemnor appealing the adjudication of summary contempt does not receive a trial de novo in the Circuit Court with attendant Sixth Amendment protection. As a result, he does not have a Sixth Amendment right of confrontation. The Court found that the General Assembly enacted specific Statutes distinguishing appeals of summary contempt adjudication from other appeals that apply to a right of trial de novo and as a result the General Assembly implicitly recognized the Supreme Court's determination that contempt adjudications are not criminal prosecutions and therefore are not protected by the Sixth Amendment.

The case of Austin v. Commonwealth, 42 Va., App. 33 a 2003 case, dealt with a female Juvenile who appealed an Order to the Court Appeals of Virginia from the Circuit Court of Franklin County which revoked her parole: Her Appeal dealt with the issue of whether or not the Circuit Court lacked jurisdiction to enter such an Order, arguing that the Juvenile Court alone had ajudication to determine whether she violated her parole. The Court of Appeals affirmed the Ruling of me Circuit Court stating that they in fact had jurisdiction. Because she was on parole, jurisdiction in the Circuit Court was proper for a parole revocation hearing.

The case of B.P., v. Commonwealth, 38 Va. App 735, a 2002 case, dealt with a juvenile Appealing the judgment of the Circuit Court of Rappahannock County, which affirmed a decision of the Juvenile Court, finding B.P., in contempt of Court for failure to obey an Order requiring her to attend school. The Juvenile was ordered to spend 10 days in a detention center for violating that Order. B.P. contended that the Juvenile Court lacked authority to order het to attend school and therefore the Court's order was void as a matter or law. The Court of Appeals disagreed and affirmed the Circuit Court's decision. They relied on the fact that any person violating an Order of the Juvenile Court, including a parent, is able to be sentenced and found guilty of contempt of Court. 1. Benton wrote a dissenting opinion stating that he did not believe that the Juvenile Court Judge was authorized by Statute to order the child to detention Brior to the entry of a Final Disposition Order of the status offense.

The case of Robertson v. Commonwealth, 181 Va. 520 a 1943 case is also an interesting case. That case dealt with the failing of an attorney to obey a Court Order. In that case, the Circuit Court entered a Judgment holding the attorney guilty of refusing to obey an Order of the Court while testifying in a case that was pending. The Defendant attorney was counsel for a Corporate Defendant in a personal injury case and the Plaintiff had compelled his testimony and refused to answer certain questions despite a Court Order to do so. The Appellant contended that the Court's power to punish him summarily for contempt of Court was limited and if it had the power to punish him, it would be under the fifth subdivision of the Statute, which authorized punishment for disobedience or resistance to any lawful process, judgment, decree or order and that the oral direction or command of the Court was not such an Order. The Court indicated that the Judge's holding of contempt for refusing to obey the verbal Order of the Court was a proper action.

The case of Middlebrooks v. Commonwealth, record no. 1516-01–1, in the Circuit Court for Newport News, involved a Defendant who appealed his conviction for abduction, maiming, robbery and use of a firearm in the commission of a felony. In that case there was a summary contempt proceeding for misbehavior in the presence of the Court and the Court in fact instructed the Defendant that he was disrupting the Court and the administration of justice. The Court specifically indicated to the Defendant what conduct the Court felt disrupted the Court's process. However, the Court found that because the record did not support the Commonwealth's contention that the Appellant defendant intended the trial Judge to hear his negative statement toward the prosecutor, the Apellant Court found that the evidence did not establish a violation of contempt of Court. They also found that the Judge misapplied the proper Code Section and should have sentenced the Defendant pursuant to Virginia Code Section 18.2–457, but because the punishment was in excess of the limits of that section, the part of the sentence that was excessive was deemed to be invalid. Therefore, the Court affirmed a 10 day jail sentence and $250.00 fine which were the Statutory limit involved in that case.

The case of Epps v. Commonwealth of Virginia, 47 Va. App. 687, a 2006 case by the Court of Appeals, it specifically addressed orders by Judge D'Alton that were entered by the Court and the Courts finding that the Sheriff of the City of Petersburg had ceased to provide proper security at the Courthouse. The Court again stated that any disobedience or resistance of an Order would be contempt, but if the Order is void, then there would be no contempt. The Court's indicated that the Circuit Court and all Court's hail the authority to ensure the security of the Court room and it certainly had subject matter jurisdiction to Order the Sheriff to provide adequate Courthouse security. The Court indicated that at most the Order was not voidable, not void, and the Sheriff did not have the authority or priviledge to disobey the Order even though it may have been an erroneous Order. The argument on Appeal by the Sheriff of Petersburg that the trial Court errored in failing to advise the Sheriff of whether the contempt charges were civil or criminal were found to be of no import because certainly case law suggests that it is a civil remedial contempt proceeding.

In a criminal contempt preceding the defendant is proven to be innocent and his guilt must be proven without a reasonable doubt. Further, he can not compelled to testify against himself. However, in a civil contempt proceeding, the matter has to be solely between the original party of the litigation and criminal cases between the public and the defendant that are not part of the original case. It is not the fact of punishment but rather the character of purpose that distinguishes civil from criminal contempt. The punishment in criminal content was to be determined and unconditional whereas the punishment in a civil contempt proceeding has the ability to remediate or purge itself from any punishment incurred. Obviously, in a criminal contempt proceeding the accused is entitled to Court appointed counsel if qualified, and may elect to have a jury, if the punishment exceeds six months. This case is probably the most important case that I discovered in defining the difference between civil and criminal contempt. The confusion in this case was that the Judge did have the authority to enter certain Orders and that the Sheriff failed to follow those Orders, and leaving the Court room without security was contemptuous. It was not encumbered upon the Judge to advise the Sheriff whether the charges were civil or criminal in nature.

Finally, the case of Baugh v. Commonwealth 14 Va. App. 368, a 1992 case that involves my friend David Baugh as a defendant in a criminal contempt proceeding. He also contended that the admissibility into evidence of a certificate prepared by the General District Court Judge detailing the circumstances of the offense, violated his constitutional rights of confrontation and his statutory right to a trial de novo, and that he was also denied his rights to a jury trial. Unfortunately for David the Court of Appeals affirmed the trial Court's ruling. It specifically stated that the events that occurred in the District Court which complies the evidence of the offense before the Court of record in the Circuit Court, had to be relevant and had to be produced as direct evidence and did not affect the de novo nature of the trial. Again, Justice Benton did not believe that David Baugh should have been summarily convicted of contempt by a trial Court of the General District Court for violating Virginia Code Section 18.2–456. Justice Benton felt that the facts failed to prove beyond a reasonable doubt that his conduct lead to a material disruption or obstruction to the administration ofjustice.

Finally, there are several other cases concerning this contempt of Court discussion such as Higginbotham v. Commonwealth, 206 Va. 291 1965, Estate of Hackler v. Hackler, 44 Va. App. 51. 2004, and Tharpe v. Commonwealth, 18 Va. App. 37, 1994. All of these cases should be read if you are preparing to defend a summary ruling of contempt. There is an interesting book called "Contempt of Court" which is in reference to a Turnof– the–Century Lynching that launched a hundred years of Federalism and is an interesting book to read. I have just started reading this book at the time that I prepared this outline. Hopefully, I will finish it before my global presentation so I can discuss it in detail.

Respectfully Submitted

Carl J. Witmeyer, II