# Swisher v. United States

> District of Columbia Court of Appeals · March 22, 1990 · 572 A.2d 85

URL: https://www.frixlaw.com/law-library/cases/9698889

## Case

- **Full name:** Mickey W. SWISHER, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** March 22, 1990
- **Citations:** 572 A.2d 85; 1990 D.C. App. LEXIS 61; 1990 WL 31937
- **Precedential status:** Published
- **Opinion:** Concurrence by Schwelb
- **Judges:** Belson, Schwelb, Reilly
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9698889

## Opinion text

SCHWELB, Associate Judge,
concurring:
I agree that even under the astonishing minority rule, which postulates that the contemnor’s absence occurs in the presence of the court, the judgment in this case must be reversed. The proceedings lacked basic fairness, and there was no emergency *95 which warranted the denial of such fundamental protections as prior notice of the nature of the proceedings and a reasonable opportunity to consult with counsel. I would go further, however, and take the next en banc opportunity to bury once and for all the misbegotten and unjust minority doctrine that a person’s absence occurs in the presence of the court, and therefore justifies summary proceedings at which the contemnor is denied the basic protections conventionally accorded to any person charged with a crime. At the very least, I would explicitly decline to extend this shibboleth beyond the context in which it has heretofore been applied — namely, the case of the trial lawyer who did not appear on time.
I
The power of courts to impose summary punishment without trial is a most unusual one. In re Oliver, 333 U.S. 257, 274-75 , 68 S.Ct. 499, 508-09 , 92 L.Ed. 682 (1948). It has its origin in the divine right of kings, and its existence “is understandable [only] when seen through the perspective of its age of inception, an age of allegedly divinely ordained monarchies, ruled by a king totally invested with all sovereign legal powers and accountable only to God.” R. GoldfaRb, The Contempt Power 11-12 (1963). Consistently with the creed which gave it birth, the summary contempt authority has been characterized as “perhaps, nearest akin to despotic power of any power existing under our form of government.” State ex rel. Ashbaugh v. Circuit Court, 97 Wis. 1, 8 , 72 N.W. 193, 194-95 (1897) (quoted in Green v. United States, 356 U.S. 165, 194 , 78 S.Ct. 632, 649 , 2 L.Ed.2d 672 (1958) (Black, J., dissenting)). The Supreme Court has described it as the “rather extraordinary power to punish without the formalities required by the Bill of Rights for the prosecution of federal crimes generally.” Offutt v. United States, 348 U.S. 11, 14 , 75 S.Ct. 11, 13 , 99 L.Ed. 11 (1954).
Because summary contempt proceedings represent a departure from accepted standards of due process, and because they are subject to grave abuse, the authority of courts to invoke them has been restricted to “ ‘the least possible power adequate to the end proposed.’ ” Oliver, supra, 333 U.S. at 274 , 68 S.Ct. at 508 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 230-31 , 5 L.Ed. 242 (1821)); see also Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 , 107 S.Ct. 2124, 2129 , 95 L.Ed.2d 740 (1987). The power to punish summarily for contempt, and thus to dispense with fundamental constitutional protections, may be invoked “ ‘only where necessary to maintain an orderly system of justice.’ ” In re Gorfkle, 444 A.2d 934, 939 (D.C.1982) (quoting In re Hunt, 367 A.2d 155, 158 (D.C.1976) (per curiam) (Hunt I), cert. denied, 434 U.S. 817 , 98 S.Ct. 54 , 54 L.Ed.2d 72 (1977)); see also In re Thompson, 454 A.2d 1324, 1327 (D.C.1982) (per curiam). The “necessities” of the administration of justice must “require” summary disposition before a court may resort to it. Offutt, supra, 348 U.S. at 14 , 75 S.Ct. at 13 .
Necessity connotes an irresistible demand. United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir.1971). To say, as we most recently did in Warrick v. United States, 528 A.2d 438, 443 (D.C.1987), that the power to punish summarily should be exercised sparingly, tends, if anything, to understate the constitutional imperative. Fundamental protections such as notice of the charges and the opportunity to consult counsel are not to be overridden in the absence of extraordinary circumstances which leave the trial judge with no reasonable alternative.
For contempt aficionados, the prototypical case in which summary proceedings are deemed appropriate occurred in Stuart England more than three and one half centuries ago. In 1631, a man who had been convicted of a felony expressed his displeasure with that denouement by throwing a brickbat 1 at the Chief Justice. Judi *96 cial proceedings were not then, nor are they now, readily manageable when hard objects (or hard insults) are flying around the heads of august jurists. The unfortunate defendant missed the target of his ill-advised wrath, but his imperfect aim did not inure substantially to his benefit. Apparently pursuant to the order of the Lord Chief Justice, the defendant’s right hand was cut off and fixed to the gibbet, and he was immediately hanged in the presence of the court. The Contempt Power, swpra, at 15.
Although one might question today whether the Lord Chief Justice sufficiently made it his “object all sublime ... to let the punishment fit the crime,” 2 I think most reasonable persons would agree that a judge must have the authority to deal promptly, firmly and effectively with those who physically disrupt judicial proceedings. Such power is required in order to preserve the integrity and dignity of the judicial process. “It is a mode of vindicating the majesty of law, in its active manifestation, against obstruction and outrage.” Offutt, supra, 348 U.S. at 14 , 75 S.Ct. at 13 . If the case of the flying brickbat were being decided today, summary disposition, albeit with a less drastic remedy, would be found to be justified because two indispensable elements were both present. First, the conduct was so outrageous and disruptive that the “necessities of the administration of justice” required immediate action. See Offutt, supra, 348 U.S. at 14 , 75 S.Ct. at 13 . Second, the misbehavior occurred in its entirety in the Chief Justice’s presence, and he presumably acquired personal knowledge of it by his own observation, so that there was no need for the conventional fact-finding which is required when witnesses and lawyers must try to reconstruct in the courtroom, after the fact, events which occurred at a different time and place. See Cooke v. United States, 267 U.S. 517, 534-35 , 45 S.Ct. 390, 394 , 69 L.Ed. 767 (1925). Controlling decisions of the Supreme Court establish that the summary contempt power may be utilized only in situations in which both of these conditions exist.
In Ex parte Terry, 128 U.S. 289 , 9 S.Ct. 77 , 32 L.Ed. 405 (1888), a man assaulted a marshal in the “personal view” of the judge, interrupting an ongoing trial. The Supreme Court held that the trial judge had the authority to punish the offender at once, without any notice or hearing. The Court stated that the authority to take such action is essential to the existence of every court, because “[bjusiness cannot be conducted unless the court can suppress disturbances, and the only means of doing that is by immediate punishment.” Id. at 308 , 9 S.Ct. at 81 . As the Court put it,
[a] breach of the peace in facie curiae is a direct disturbance and a palpable contempt of the authority of the court. It is a case that does not admit of delay, and the court would be without dignity that did not punish it promptly and without trial.
Id. The Court recognized, however, that the authority to punish summarily might be abused or exercised arbitrarily, id. at 309 , 9 S.Ct. at 81 , and found its invocation to be justifiable only if the court was
satisfied, from what occurred under its own eye and within its hearing, that the ends of justice demanded immediate action, and that no explanation could mitigate [the contemnor’s] offence or disprove the fact that he had committed such contempt of its authority and dignity as deserved instant punishment.
Id. at 310 , 9 S.Ct. at 81 .
In Cooke v. United States, supra, the Court reiterated the existence of a judge’s authority to punish summarily, but held that it was limited to situations where there was
such an open threat to the orderly procedure of the court and such a flagrant defiance of the person and presence of the judge before the public in the “very hallowed place of justice,” as Blackstone has it, [that if it] is not instantly sup *97 pressed and punished, demoralization of the court's authority will follow. Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process, that the assumption that the court saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it.
267 U.S. at 536 , 45 S.Ct. at 394-95 .
In In re Oliver, supra, the Court reiterated the principles of Terry and Cooke , and held that except in a narrowly limited category of cases, one charged with contempt must be accorded basic constitutional protections including, among others, the right to notice of the charges against him, the right to counsel, and the right to present a defense. The Court stated that
[t]he narrow exception to these due process requirements includes only 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. If some essential elements of the offense are not personally observed by the judge, so that he must depend upon statements made by others for his knowledge about these essential elements, due process requires, according to the Cooke case, that the accused be accorded notice and a fair hearing as above set out.
Oliver, supra, 333 U.S. at 275-76 , 68 S.Ct. at 508-09 . Accord, Harris v. United States, 382 U.S. 162, 164 , 86 S.Ct. 352, 354 , 15 L.Ed.2d 240 (1965) (summary contempt appropriate only in “exceptional circumstances,” such as acts threatening the judge, disrupting a hearing, or obstructing court proceedings, and may not be utilized where swiftness is not a prerequisite of justice). 3
II
I do not believe that it can be plausibly argued that, in the present case, there existed conditions of the kind which the Supreme Court has deemed indispensable for the exercise of the summary contempt power. As the opinion of the court in the present case points out, it was certainly not necessary for the judge to proceed in this fashion. Various alternatives were available to him, all compatible with Swisher’s rights. The judge could have modified the conditions of Swisher’s release. He could have issued an order to show cause and tried Swisher a few days later, or at least deferred action until Swisher could consult with his counsel. Another possibility would have been to leave it to the government to institute at bail-jumping prosecution. 4 There was no courtroom disturbance or emergency which required immediate action; indeed, the summary contempt proceeding occurred a day and a half after Swisher had failed to appear. The judge could determine with his own senses that Swisher was not present, but there was no way of assessing, without additional information from Swisher or others, why Swisher had been absent and whether his conduct was willful, so that “not all of the essential elements of the offense [were] under the eye of the court.” Harris, supra, 382 U.S. at 164 , 86 S.Ct. at 354 . The only conceivable basis for sustaining a proceeding as summary as the one which the judge conducted here is by analogy to the “absent trial lawyer” eases. I think that we should, in the words of Mark Anthony, come to bury that line of authority, and not *98 to praise it, extend it, or even allow it to survive.
Ill
As the per curiam opinion recognizes, see pp. 90-91, supra, a substantial majority of courts have concluded that an attorney’s failure to appear in court on time may not be punished as summary contempt. See Annot, 13 A.L.R.4th 123 , 159-75 (1982 & Supp.1989). They have done so because a contrary rule is illogical, unfair, and irreconcilable with Supreme Court precedent regarding the limits of the summary contempt power.
Logic is surely strained by the notion that absence amounts to presence. State v. Ryan, 59 Hawaii 425, 429 , 583 P.2d 329, 332 (1978) (per curiam). As the court pointedly observed in Klein v. United States, 80 U.S.App.D.C. 106, 108 , 151 F.2d 286, 288 (1945) (per curiam) (quoting Ex parte Clark, 208 Mo. 121, 130 , 106 S.W. 990, 997 (1907)):
The petitioner [contemnor] himself was absent. His acts ad interim were likewise absent. His doings went with him. It would seem like an exquisite and palpable contradiction of terms to complain in one breath that the petitioner [con-temnor] and his acts were absent, and in the next breath to say that such absence constituted a presence; that is, a contempt committed in the presence of the court.
An attorney’s failure to appear can thus be characterized as having occurred in the presence of the court only in a semantic sense. In re Lamson, 468 F.2d 551, 552 (1st Cir.1972) (per curiam).
Willfulness is an element of criminal contempt, and “[w]hether such willfulness exists is not something that the court can be aware of from its own observations in the courtroom and without inquiry from other sources.” Taylor v. District Court, 434 P.2d 679, 681 (Alaska 1967). As the court put it in United States v. Marshall, 451 F.2d 372, 374 (9th Cir.1971):
In Rule 42(a) eases, the judge is his own best witness of what occurred. If he must depend upon the testimony of other witnesses or the confession of the con-temnor for his knowledge of the offense, Rule 42(a) does not apply.
In the present case, the judge based his ruling essentially on the “confession” of the contemnor, made in open court without a prior opportunity to consult with counsel.
Several federal appellate courts have also reasoned that summary contempt proceedings are inappropriate where attorneys have failed to appear, because there is no “need for immediate penal vindication of the dignity of the court.” See, e.g., Jessup v. Clark, 490 F.2d 1068, 1071 (3d Cir.1973); United States v. Willett, 432 F.2d 202, 205 (4th Cir.1970) (per curiam) (both quoting Cooke, supra, 267 U.S. at 536 , 45 S.Ct. at 395 ). In United States v. Delahanty, 488 F.2d 396, 398 (6th Cir.1973), the court concluded that an attorney’s late appearance did not present “exceptional circumstances ... such as acts threatening the judge or disrupting a hearing or obstructing court proceedings” (quoting Harris, supra, 382 U.S. at 164 , 86 S.Ct. at 354 ), and thus did not justify summary punishment. As the court put it in Willett, supra, 432 F.2d at 205 , any affront to the dignity of the court resulting from the attorney’s belated arrival did not constitute “such an unusual situation that summary action was required to protect the judicial institution itself.”
In disapproving the use of summary proceedings in absent lawyer cases, several courts have urged that judges be vigilant lest “the drastic power authorized escape the permissible limits of reason and fairness.” Pietsch v. President of the United States, 434 F.2d 861, 864 (2d Cir.1970) (per Justice Clark), cert. denied, 403 U.S. 920 , 91 S.Ct. 2236 , 29 L.Ed.2d 698 (1971); see also Marshall, supra, 451 F.2d at 374 . These warnings should be heeded.
IV
Given the force of the foregoing authorities, one might well wonder why the District of Columbia subscribes to the minority “counsel’s absence occurs in the judge’s presence” rule. Therein hangs a tale.
*99 Forty-five years ago, the Court of Appeals for this Circuit held in Klein v. United States, supra, that an attorney’s unexcused failure to appear in court following a five-day recess was not misconduct in “the presence of the court” as that term was used in section 268 of the federal Judicial Code, 28 U.S.C. § 385 , and could not be punished summarily. Twenty-five years after Klein , however, in Sykes v. United States, 264 A.2d 894, 895-96 (D.C.1970) (Sykes I), this court affirmed an attorney’s criminal contempt conviction for failure to appear for a hearing. Although the trial judge had issued an order to show cause, and Sykes had been found guilty following a hearing, Sykes contended on appeal that his contempt had not been committed in the presence of the court and that the proceedings utilized by the judge were insufficient. This court held, however, that the District of Columbia follows what it acknowledged to be the minority rule that
the offensive conduct, to wit, the absence, occurs in the presence of the court, and the unexcused absence may be held to be contempt of court, provided notice and an opportunity to be heard are given.
Id. at 895 (internal quotation marks and footnote omitted). Quoting from Arthur v. Superior Court of Los Angeles County, 62 Cal.2d 404, 409 , 398 P.2d 777, 780-81 , 42 Cal.Rptr. 441 , 444-45 (1965), the court provided the following justification for its holding:
Elusive attorneys are a recurring problem in trial courts, particularly in calendar departments, a fact of which this court may take judicial notice. [Several] cases of this nature have reached this court in the past decade, and in [some] of those cases there was evidence of repeated offenses by the attorneys held in contempt. To hold that Attorney Sykes’ failure to appear at the appointed hour was not contempt committed in the presence of the court within the meaning of [our statute] would provide insulation to attorneys who now overextend themselves, and encourage them to go further in trying the patience of trial judges through absences which obstruct normal courtroom procedure but border upon being excusable.
Sykes I, supra, 264 A.2d at 895-96 .
Sykes next appealed to the United States Court of Appeals, which reversed his conviction for insufficient evidence of willfulness. Sykes v. United States, 144 U.S.App.D.C. 53 , 444 F.2d 928 (1971) (per curiam) (Sykes II). The federal appellate court did not agree, however, with Sykes’ procedural contentions. After alluding to its holding in Klein that an attorney’s failure to appear did not occur in the presence of the court within the meaning of the federal statute, the court continued:
In the appellant’s case, however, and in previous decisions applying the District of Columbia statute, the District of Columbia Court of Appeals has adopted the contrary view. See In re Shorter, 236 A.2d 318 (D.C.1967); In re Saul, D.C. Mun.App., 171 A.2d 751 (D.C.1961). 5
We see no reason for us to interfere with the local court’s permissible interpretation of its own statutory contempt authority. We think it pertinent to note also that the District of Columbia trial courts have, at least in the reported cases, conducted a show cause hearing before finding an attorney in contempt. In the light of this practice we cannot say that the local court’s interpretation of the District of Columbia statute is unreasonable or that the procedure adopted affords inadequate protection to attorneys cited for contempt.
Id. at 55, 444 F.2d at 930 . In other words, the federal appellate court approved a procedure under which the judge issued an order to show cause to the offending attorney and subsequently held a hearing — a far cry indeed from what took place in the present case.
Acceptance in this jurisdiction of the doctrine that an attorney’s absence occurs in the presence of the court has subsequently *100 led, perhaps inexorably, to holdings that have affirmed criminal contempt convictions in cases in which, unlike Sykes, Saul and Shorter, no order to show cause was issued, and in which the contemnors were adjudicated in criminal contempt immediately after their belated arrival in court. See, e.g., In re Gregory, 387 A.2d 720 (D.C.1978); In re Hunt, 367 A.2d 155 (D.C.1976) (per curiam), cert. denied, 434 U.S. 817 , 98 S.Ct. 54 , 54 L.Ed.2d 72 (1977). 6 That development, in turn, led to the even more abbreviated procedure which was here utilized by the trial judge.
This downhill slide was perhaps predictable once the courts of this jurisdiction acceded to the “minority” rule. Since con-tempts in the presence of the court are summary contempts, see Rule 42(a), and since no hearing is required in the kinds of disruptive contempts epitomized by Ex parte Terry or the case of the flying brickbat, a pristine but indiscriminate logic might lead to the conclusion that the lawyer (or even the layman) who arrives in court late can be sentenced to imprisonment without being told in advance that he is being charged with criminal contempt, and without having the opportunity to discuss his case with his lawyer.
A reading of Sykes I and Sykes II dispels any notion that either this court or our federal brethren contemplated a procedure such as that utilized by the trial court in the present case. Nevertheless, I find the minority rule logically unsound and incompatible with Supreme Court precedent. I would abandon it once and for all.
As I have noted, this court first explicitly adopted the “minority” rule in Sykes I, indicating in that opinion that it had implicitly done so in Saul and Shorter. The question whether the court should follow the minority rule rather than the majority doctrine was not raised in either of these cases, however, nor was it of much consequence, since each trial judge had proceeded by order to show cause followed by a hearing. The most that can be said of Saul and Shorter is that the question here presented merely “lurkfed] in the record,” Webster v. Fall, 266 U.S. 507, 511 , 45 S.Ct. 148, 149 , 69 L.Ed. 411 (1925). These decisions cannot reasonably be viewed as authoritative precedents on the subject. Id.
In Sykes I, this court did explicitly adopt the “absence occurs in the court’s presence” theory, and in Sykes II, the federal appellate court chose to countenance that result. Since Sykes, this court has dutifully adhered to these precedents in perhaps a dozen cases. In none of them, however, has the court discussed the limitations of a trial judge’s summary contempt authority, as defined by the Supreme Court in cases such as Cooke, Offutt and Oliver , nor has it attempted to reconcile the result which it has reached with the purposes of the summary contempt doctrine. For aught that appears in our jurisprudence on this subject, no constitutional issue is presented at all.
We should not go into the twenty-first century, or even the last decade of the twentieth, clinging to a rule which has as little basis in reason or fairness as this one. 7 In the words of one of this nation’s greatest jurists, “it is revolting to have no better reason for a rule of law then that it was laid down in the time of Henry IV.” O.W. Holmes, The Path Of The Law 187 (1921). At an appropriate en banc sitting of this court, “absence equals presence” should join Bolingbroke 8 in comparative *101 historical oblivion. 9
. Presumably, a fragment of brick which was utilized as a missile. See Webster’s Third New International Dictionary 275 (1971). Persons who have hurled verbal brickbats at judges have *96 also been summarily punished. See, e.g., Fisher v. Pace, 336 U.S. 155 , 69 S.Ct. 425 , 93 L.Ed. 569 (1949).
. W. GILBERT & A. SULLIVAN, THE MIKADO, Act II, lines 337-39.
. Even where a defendant is disorderly in the courtroom and prompt action would otherwise be called for, summary contempt proceedings may be inappropriate if there is reason to entertain doubts as to his sanity. See, e.g., Rollerson v. United States, 119 U.S.App.D.C. 400, 407-08, 343 F.2d 269, 276-77 (1964) (eschewing brickbats and avoiding direct conflict with the judge, the defendant threw a pitcher of water at the prosecutor).
. Judge Beaudin has held that a criminal contempt adjudication of a defendant who failed to appear bars a subsequent criminal prosecution for bail jumping. United States v. Jackson, 113 Daily Wash.L.Rptr. 2437, 2442-44 (Super.Ct.D.C.1985).
. In Sykes I, this court also alluded to Shorter and Saul as "implicitly” adopting the "minority position.” In fact, neither of these decisions addressed the issue at all. See p. 100, infra.
. For the subsequent history of the Hunt case, which itself demonstrates the deficiencies of summary proceedings in cases of this kind, see the per curiam opinion at pp. 91-92 & note 16.
. In Sykes I, as we have noted, this court justified its adoption of the minority rule on the theory that it was required to enable judges to deal with attorneys who took on too many cases. The court provided no explanation why there was an emergency so great that non-summary proceedings would be inadequate to deal with this situation, nor did it address the question whether the misconduct in its entirety was observable by the court.
.This was Henry IV's name before he seized the throne in questionable fashion from his cousin, Richard II.
. In any event, I would not extend "absence is presence" from the context of the late-arriving lawyer to that of an unschooled layman. Since a lawyer has legal training, the consequences of having to proceed without counsel and without being told of the charge, while unfair enough, are not as devastating as they are to a layman still in his teens such as Swisher. See In re Allis, 531 F.2d 1391, 1393 (9th Cir.), cert. denied, 429 U.S. 900 , 97 S.Ct. 267 , 50 L.Ed.2d 185 (1976). Recently, in Hercules & Co. v. Shama Restaurant Corp., 566 A.2d 31 (D.C.1989), we declined to extend another outmoded doctrine, which was inconsistent with Supreme Court precedent in analogous federal cases, but to which this court was committed under M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971), even though it was arguably difficult to articulate a persuasive distinction between the situation to which the doctrine applied and the circumstances to which we were asked to extend it.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9698889. Public record. Not legal advice.