State of Idaho v. Kathleen J. Elliott Contempt of Court
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 32265
IN THE MATTER OF KATHLEEN J.
ELLIOTT.
----------------------------------------------------------STATE OF IDAHO,
Plaintiff-Respondent,
v.
DWIGHT DOUGLAS RICE,
Defendant,
and
KATHLEEN J. ELLIOTT,
Real Party in InterestAppellant.
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Boise, February 2008 term
2008 Opinion No. 43
Filed: March 28, 2008
Stephen W. Kenyon, Clerk
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
County. Hon. Michael E. Wetherell, District Judge.
The order of the district court is vacated. No attorney’s fees are awarded. Costs
are awarded to appellant.
Hampton & Elliott, Boise, attorneys for appellant. Dennis Benjamin argued.
Hon. Lawrence G. Wasden, State Attorney General, for respondent. Jessica
Lorello argued.
___________________________________
W. JONES, Justice
I. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
Ms. Elliott and Mr. Roark represented Dwight Douglas Rice, a criminal defendant in
State v. Rice, Case No. H0500227. In that case, prosecuted by Ms. Armstrong, Rice was charged
with enticing children over the Internet, and subsequently found guilty.
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On Friday, July 22, 2005, the court held an in-chambers meeting regarding the
prosecution’s request for information on the anticipated testimony of a potential witness of the
defense. At this hearing, the district court ruled as follows:
So, what I am going to do is I am going to order that the Defense will either
provide access to their expert to allow the State to interview the expert with
regard to his opinion and the basis of those opinions prior to trial or in the
alternative the Defense shall provide to the State a summary of testimony which it
anticipates it will elicit from its expert witness and the basis of the witness’s
opinions.
Given this choice, Ms. Elliott agreed that she “would produce a summary.” On Monday July 25,
2005, the district court formally entered its order, adding additional substance (indicated in
italics below):
[T]he court orders that the defense must either make its expert available for
interview by the state as to his anticipated testimony or opinions or defense
counsel may provide to the state a written summary of the substance of the
testimony of the witness. Such a summary must be adequate to allow the state
to be aware of the basis of the expert’s opinion. Failure to provide such an
adequate summary or to allow the interview of the witness will result in the
court continuing the trial after the expert renders his opinion to allow the state
at least two days time to prepare for cross-examination and financial sanctions
to reimburse the state for any costs incurred in delaying the trial.
The next morning on July 26, 2005, the district court — presumably referring to its order
on the previous day that the defense produce a witness summary or report — asked Ms. Elliott
whether she had provided any additional information to the State regarding the defense’s
witness, and Ms. Elliott indicated that she had not. The court immediately took a recess and
upon returning, with no further discussion, the district court then summarily found Ms. Elliott in
criminal contempt of court: “I find the defense counsel in criminal contempt of the court. The
Court will reserve punishment until the conclusion of trial. It appears that there has been a
willful disobeying of the Court’s order . . . .”
The district court eventually provided Ms. Elliott the opportunity to explain her actions
on Monday, July 26, 2005.
She then stated that she
relied upon the court’s ruling when the court said failure to provide such an
adequate summary or to allow interview of the witnesses will result in [the] court
continuing the trial after the expert renders his opinion to allow the State at least
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two day’s time to prepare for cross-examination and financial sanction to
reimburse the State for any cost incurred in delaying the trial.
She further explained that she believed that the order was “three-fold,” as she believed it
allowed her to select among an “interview, or a summation, or . . . a leeway of two days granted
if the witness was (sic) called and that the defense would pay the cost of that.” In the district
court’s Order Re: Finding of Contempt, it stated that it did not find credible Ms. Elliott’s
explanation, and that “having it her way was more important than the inconvenience caused to
citizen jurors, opposing counsel, and witnesses and any disruption that might occur in the court’s
calendar.” The parties do not dispute that the defense never called the witness on whom the
supposedly-disruptive missing report or summary was lacking. In addition, the supposedlyinconvenienced jury had yet to be sworn.
II. STANDARD OF REVIEW
In In re Weick, 142 Idaho 275, 127 P.3d 178 (2005), this Court stated the standard under
which it reviews contempt sanctions:
The sanction or penalty imposed under a contempt order is reviewed under an
abuse of discretion standard. The determination of whether a sanction or penalty
should be imposed is within the discretion of the trial court. This Court does not
weigh the evidence, but rather reviews the district court’s findings to determine
[whether] they are supported by substantial and competent evidence. Evidence is
regarded as substantial if a reasonable trier of fact would accept it and rely upon it
in determining whether a disputed point of fact has been proven. When the trial
court exercises its discretion, this Court will not interfere unless the lower court
clearly abused its discretion.
In re Weick, 142 Idaho at 278, 127 P.3d at 181 (internal citations omitted).
Although the trial court has discretion over whether to impose a sanction, it only has
discretion to impose a sanction insofar as the application of its discretion yields its conclusion of
guilt beyond a reasonable doubt. Steiner v. Gilbert, 144 Idaho 240, __, 159 P.3d 877, 883 (2007)
(“To impose a sanction in a case involving criminal contempt, the trial court must find all of the
elements of contempt beyond a reasonable doubt.”).
III. ANALYSIS
The definition of “willful” is “‘an indifferent disregard of duty’ or ‘a remissness and
failure in performance of a duty’ but not a ‘deliberately and maliciously planned dereliction of
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duty,’” and this definition “applies to contempt proceedings.” In re Weick, 142 Idaho at 281, 127
P.3d at 184 (2005). In other words, an order must be violated willfully in order to hold in
contempt one who violated the order.
Because Ms. Elliott complied with the district judge’s order, she did not willfully violate
it. The order provided four options: (1) elect not to call the witness; (2) supply a summary to the
State; (3) make the witness available to the State; (4) delay a decision on the issue and then pay
the costs of doing so if she chose to call the witness. When Ms. Elliott chose the fourth option,
she complied with the order.
Because she complied with the order, she should not be held in contempt of court for
failing to comply with it.
The State argues that the district court did not intend to make the trial delay with payment
of the cost of the delay an available option, but rather that provision of the order was a penalty or
sanction for failure to make the witness available for interview or to provide a summary of
testimony. At best that is a possible interpretation of the order. Nevertheless, Ms. Elliott’s
interpretation of the order is also a reasonable interpretation of the order. To find a person in
criminal contempt for willfully disobeying a court order, the order must be clear and
unequivocal. See United States v. Fleischman, 339 U.S. 349, 370-71 (1950) (Douglas, J.,
dissenting) (“failure to take action required by an order can be punished only if the action is
clearly, specifically, and unequivocally commanded by that order.”); see also Terminal R. Ass’n
of St. Louis v. United States, 266 U.S. 17, 29 (1924) (“In contempt proceedings . . . a decree will
not be expanded by implication or intendment beyond the meaning of its terms when read in the
light of the issues and the purpose for which the suit was brought, and the facts found must
constitute a plain violation of the decree so read.”). At the very least, this Court cannot say that
the order of the court was clear and unequivocal or not susceptible to different reasonable
interpretations.
This case seems to be nothing more than a legitimate misunderstanding between the court
and counsel as to what was expected. Under such circumstances, there was no justification for
summarily imposing criminal contempt upon Ms. Elliott, especially when there was nothing to
indicate the court did not consider counsel’s interpretation of the order as providing an
alternative means of compliance until after the choice was made and certainly no indication that
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the court would consider that interpretation to result in criminal contempt until the court
summarily imposed the contempt without any advance notice.
Since counsel’s interpretation of the order was a reasonable interpretation, the Court
cannot find that there was any willful disobedience of the order and therefore the district court’s
finding of contempt of court is vacated. Since the Court concludes that this controversy resulted
from a mutual misunderstanding of the court’s order, no attorney’s fees are awarded. Costs to
appellant.
IV. CONCLUSION
For the foregoing reasons, we vacate the district court’s finding of Ms. Elliott in contempt
of court, and award costs to Ms. Elliott.
Justices BURDICK and J. JONES, CONCUR.
Chief Justice EISMANN, concurring in part and dissenting in part:
I concur in the majority opinion except for the denial of Ms. Elliott’s request for an award of
attorney fees under Idaho Code § 7-610. That statute provides that in contempt proceedings “the
court in its discretion, may award attorney’s fees to the prevailing party.” Ms. Elliott is the
prevailing party in this case. Regardless of the competing interpretations of the district court’s
order, I would award attorney fees because it summarily adjudicated Ms. Elliott in contempt
under circumstances in which summary contempt proceedings were clearly inappropriate.
On Friday, July 22, 2005, the district court held an in-chambers meeting with the deputy
prosecuting attorney and Ms. Elliott to discuss the prosecution’s request for information about a
possible defense expert witness. After argument from both counsel, the court stated:
So, what I am going to do is I am going to order that the Defense will
either provide access to their expert to allow the State to interview the expert with
regard [to] his opinion and the basis of those opinions prior to trial or in the
alternative the Defense shall provide to the State a summary of testimony which it
anticipates it will elicit from its expert witness and the basis of the witness’s
opinions.
Ms. Elliott then expressed her concerns that during an interview of the expert, the State’s
inquiry may delve into information that is not subject to disclosure under Idaho Criminal Rule
16. 1 The court responded that as an alternative the Defense could provide the summary. Ms.
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Idaho Criminal Rule 16(g) provides:
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Elliott asked when the summary would have to be provided, and the court responded that it must
be provided to the State “no later than Monday at 10:00.” The deputy prosecutor then asked if
the Defense was going to provide the interview or the summary, and Ms. Elliott responded, “We
will produce a summary.” The Defense did not produce the summary by the deadline of July 25,
2005, at 10:00 a.m.
On Tuesday, July 26, 2005, at 9:00 a.m., the district court met in open court with the
deputy prosecuting attorney and with defense counsel, Ms. Elliott and Mr. Roark. The court
recited the procedural history of the case, including defense counsel’s unsuccessful attempt to
have this Court intervene and block the discovery order. It then took up a motion by the State to
exclude the testimony of the Defense expert. When given an opportunity to respond to that
motion, Ms. Elliott stated that the Defense would follow the court’s written order that had been
entered on Monday. The court twice asked Ms. Elliott whether she had provided the information
to the State, and both times she answered that she had not. The court then declared a recess and
upon returning announced, “I find the defense counsel in criminal contempt of the court.”
The district court treated Ms. Elliott’s conduct as direct contempt and summarily
adjudicated her in contempt. Because the alleged contempt was clearly indirect contempt, the
court was clearly wrong in summarily adjudicating her in contempt. The court also adjudicated
her in “criminal contempt” without affording her the constitutional rights to which she was
entitled before a criminal contempt sanction could be imposed for indirect contempt. See, Camp
v. East Fork Ditch Co., Ltd., 137 Idaho 850, 860-61, 55 P.3d 304, 314-15 (2002), for a list of
those rights.
Idaho Criminal Rule 42 governs summary contempt proceedings in connection with a
criminal case. Subsection (b)(1) of that Rule provides:
(1) A summary proceeding may be used only if the contempt was
committed in the presence of the court. A contempt is committed in the presence
of the court if:
a. The conduct occurs in open court in the immediate presence of
the judge;
Except as to scientific or medical reports, this rule does not authorize the discovery or
inspection of reports, memoranda, or other internal defense documents made by the defendant, or
defendant's attorneys or agents in connection with the investigation or defense of the case, or of
statements made by the defendant or state or defense witnesses, or prospective state or defense
witnesses to the defendant, defendant's agents or attorneys.
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b. The judge has personal knowledge, based upon personally
observing and/or hearing the conduct, of the facts establishing all elements
of the contempt; and
c. The conduct disturbs the court’s business.
Summary contempt proceedings could not be used in this case because the allegedly
contemptuous conduct did not occur “in open court in the immediate presence of the judge” and
the judge did not have “personal knowledge, based upon personally observing and/or hearing the
conduct, of the facts establishing all elements of the contempt.” Ms. Elliott was allegedly
required to give the summary to the deputy prosecuting attorney no later than Monday, July 25,
2005, at 10:00 a.m. Her failure to do so did not occur in open court. Judge Wetherell did not
have personal knowledge of the facts establishing all elements of the contempt. He was not with
Ms. Elliott continuously from 11:10 a.m. on July 22, 2005, (when the hearing ended during
which he had orally ordered the discovery) until 9:00 a.m. on July 26, 2005, (when the hearing
commenced during which he found Ms. Elliott in contempt). Without being physically present
with Ms. Elliott during that entire time, he would not have personal knowledge of whether or not
she had complied with his oral order.
Personal knowledge must be “based upon personally observing and/or hearing the
conduct” constituting the contempt. I.C.R. 42(b)(1). The allegedly contemptuous conduct was
Ms. Elliott’s failure to give the deputy prosecuting attorney the required discovery by 10:00 a.m.
on July 25, 2005. Information gained from others, including an admission by the alleged
contemnor, does not constitute personal knowledge of the judge. As the United States Supreme
Court stated in In re Oliver, 333 U.S. 257, 274-75 (1948) (emphasis added):
There [in Cooke v. United States, 267 U.S. 517 (1925),] it was pointed out that for
a court to exercise the extraordinary but narrowly limited power to punish for
contempt without adequate notice and opportunity to be heard, the courtdisturbing misconduct must not only occur in the court’s immediate presence, but
that the judge must have personal knowledge of it acquired by his own
observation of the contemptuous conduct. This Court said that knowledge
acquired from the testimony of others, or even from the confession of the accused,
would not justify conviction without a trial in which there was an opportunity for
defense.
In Cooke, 267 U.S. at 535, the Court quoted from Ex parte Savin, 131 U.S. 267, 277 (1889), as
follows:
[I]n cases of misbehavior of which the judge cannot have such personal
knowledge, and is informed thereof only by the confession of the party, or by the
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testimony under oath of others, the proper practice is, by rule or other process, to
require the offender to appear and show cause why he should not be punished.
Ms. Elliott’s admission in open court that she did not provide the information to the State
did not give Judge Wetherell personal knowledge of the facts constituting the contempt. In re
Oliver, 333 U.S. 257, 274-75 (1948); Cooke v. United States, 267 U.S. 517, 535 (1925); Ex parte
Savin, 131 U.S. 267, 277 (1889). Since he clearly lacked the authority to summarily adjudicate
Ms. Elliott in contempt, I would award attorney fees to her.
Justice HORTON, concurring:
The district judge’s written order unambiguously required Ms. Elliott to do one of two
things: either make her witness available for an interview by the prosecuting attorney or provide
a summary of the substance of her witness’s testimony. Although subsequent events show that it
was not the district judge’s intention to limit the potential consequence of disobedience to his
order, his written order defined the consequences of noncompliance. The order unambiguously
stated:
Failure to provide such an adequate summary or to allow the interview of
the witness will result in the court continuing the trial after the expert renders his
opinion to allow the state at least two days time to prepare for cross-examination
and financial sanctions to reimburse the state for any costs incurred in delaying
the trial.
On the day that she was found to be in contempt, Ms. Elliott’s statements to the district
court reflected her willingness to accept those consequences. She stated: “Your Honor, I read
the court’s [order] to be three-fold. That there would be an interview, or a summation, or there
would be a leeway of two days granted if the witness was called and that the defense would pay
the costs of that.”
These facts are similar to those addressed in Lastufka v. State, 662 P.2d 991 (Alaska
App.1983). In that case, Lastufka was informed by the state’s attorney that he faced a potential
fine of $100 if found in contempt. He then admitted the contempt and was sentenced to serve
120 hours in jail. He successfully appealed. Reversing the judgment, the appellate court stated:
“We conclude that under these facts the court did not give Lastufka sufficient notice to impose a
jail sentence under its inherent power to punish contempt.” Id. at 992. We have similarly stated
that an alleged criminal contemnor “entitled to certain procedural due process protections before
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the court can impose sanctions. He [or she] is entitled to . . . notice of the sanctions which might
be imposed against him [or her]. . . .” Ross v. Coleman Co., Inc., 114 Idaho 817, 838, 761 P.2d
1169, 1190 (1988) (citing Bandelin v. Quinlan, 94 Idaho 858, 499 P.2d 557 (1972)).
In my view, Ms. Elliott elected not to comply with the district court’s order. Although it
is evident that it was not the district court judge’s intention to do so, his written order
affirmatively misled Ms. Elliot and deprived her of the right to notice of the sanctions which
might be imposed for disobedience to that order. For that reason, she may not be punished in
any fashion other than that prescribed in the order which she is alleged to have violated. The
order defined a sanction that would be imposed only if Ms. Elliott called the expert witness. As
the condition precedent to the prescribed punishment did not occur, she may not be punished.
Accordingly, I concur in the decision of the Court.
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