Summary Criminal Contempt Finding Was Improper When The Conduct Did Not Take Place In The Judge's Presence
FEDERAL TRADE COMMISSION v. TRUDEAU (May 20, 2010)
Kevin Trudeau was found guilty of civil contempt of court for violating the terms of a consent order. In 2009, the Seventh Circuit affirmed Judge Gettleman's (N.D. Ill) finding of contempt (see intheiropinion) but remanded for reconsideration of a nearly $40 million penalty. During the course of the remand proceedings, Trudeau instigated an e-mail barrage on Judge Gettleman. He asked his radio listeners, his website viewers, and his e-mail list readers to send e-mails directly to the judge in support of his cause. Most of the e-mails were polite and innocuous -- some, however, were at least mildly threatening. In all, the judge received over 300 e-mails. The next afternoon, the judge found Trudeau guilty of criminal contempt and sentenced him to 30 days of incarceration. Trudeau appeals.
In their opinion, Judges Manion, Rovner, and Tinder vacated and remanded. Substantively, a judge has the authority to punish "misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice" under 18 U.S.C. § 401. Procedurally, Rule 42(a) of the Federal Rules of Criminal Procedure provides the framework for a typical finding of criminal contempt. Here, however, the court used the summary procedures of Rule 42(b). A summary finding of direct criminal contempt under Rule 42(b) requires that the contemptuous behavior occur in the presence of the judge. The fundamental principle that a court should use the least possible power in a contempt case requires not only that the contempt finding is permissible under Rule 42(b) but that there is also a compelling reason to invoke it. The Court found neither present here. The conduct that he punished did not occur in his physical presence. In fact, he had to summon Trudeau to court to impose the penalty. The Court also found no evidence in the record of a disruption of the court's ability to function or other compelling reason to use the summary procedures. The Court declined to address Trudeau's arguments that his conduct did not meet the "presence" requirement of § 401 and that it was protected by the First Amendment.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select