Request By:
Honorable Paul W. Richwalsky, Jr.
First Assistant Commonwealth's
Attorney
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Rodney V. Tapp, Assistant Attorney General
In your recent letter to the Attorney General, you have requested an opinion as to the prosecution of a criminal contempt of court case. Your questions concern a situation where a defense counsel in a criminal trial has been held in contempt of court and a mistrial has been declared by the trial judge. A determination of punishment for the contempt of court is to be made after a hearing is held before a different judge. Your first question asks what, if any, is the responsibility of the Commonwealth's Attorney in the prosecution of the case at the later hearing.
The answer to your question involves a consideration of the nature of the offense of criminal contempt of court. At common law, a criminal contempt of court is a misdemeanor. Although the offense is not defined by statute, it is classified as a misdemeanor under KRS 431.060:
Offenses are either felonies or misdemeanors. Offenses punishable with death or confinement in the penitentiary are felonies. All other offenses, whether at common law or made so by statute, are misdemeanors.
A contempt which is committed in the presence of the court may be punished in a summary way; however, for most contempts the court is required to proceed by rule to appear and answer, which is the common law mode of conducting such a proceeding. See Roberson's New Kentucky Criminal Law and Procedure, Section 1282, pages 1484-1485, (2d ed. 1927). Since contempt of court is an offense against the state or public justice, and not against the judge, it would be proper, and perhaps necessary in some instances, to proceed in the name of the Commonwealth against the person in contempt.
The Court in Young v. Knight, Ky., 329 S.W.2d 195, 200 (1959), recognized the well-settled rule that although contempts are regarded as offenses against the state, the court in which a contempt is committed has power to punish it or entertain proceedings to that end. Therefore, according to rule mentioned in Young, supra, the Circuit Court has jurisdiction to entertain proceedings in the instant criminal contempt of court.
KRS 15.725 provides in pertinent part for the responsibility of the Commonwealth's Attorney as it relates to the prosecution of criminal offenses:
(1) The Commonwealth's attorney shall attend each circuit court held in his judicial circuit. He shall have the duty to prosecute all violations of the criminal and penal laws which are to be tried in the circuit court in his judicial circuit. In addition, he shall have the primary responsibility within his judicial circuit to present evidence to the grand jury concerning such violations.
It is our opinion that this provision establishes the duty of the Commonwealth's Attorney to prosecute the instant criminal contempt of court. In addition, pursuant to the holding in
Melton v. Commonwealth, 160 Ky. 642, 170 S.W. 37 (1914), the prosecution may be brought before any judge or division of the circuit court.
Next, you ask for general information about the criminal contempt proceeding itself. As a general rule, a trial court may proceed, without notice and hearing, and punish summarily contumacious conduct committed in its presence. Notwithstanding this power, the
Supreme Court of the United States in Taylor v. Hayes, 418 U.S. 488, 41 L. Ed. 2d 897, 94 S. Ct. 2697 (1974), said:
[B]efore an attorney is finally adjudicated in contempt and sentenced after trial for conduct during trial, he should have reasonable notice of the specific charges and opportunity to be heard in his own behalf. This is not to say, however, that a fullscale trial is appropriate. Usually, the events have occurred before the judge's own eyes, and a reporter's transcript is available. 418 U.S. at 499, 41 L. Ed. 2d at 908.
Previously, in Sacher v. United States, 343 U.S. 1, 96 L. Ed. 717, 72 S. Ct. 451 (1952), the Supreme Court had held that the court need not afford the contemnor the full panoply of procedures such as "the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs and all that goes with a conventional court trial" Id., at 9, 96 L. Ed. at 726. In
Taylor v. Hayes, 418 U.S. 488, 500 N. 9, 41 L. Ed. 2d 897, 908 N. 13, 94 S. Ct. 2697 (1974), the Court decided only that contemnor is entitled to elementary due process protections of reasonable notice and opportunity to be heard. Therefore, it seems that the above mentioned common law of proceeding by rule would satisfy the notice requirement of Taylor, supra.
Although Taylor, supra, only mentions delay of final adjudication of contempt until after trial, it is our opinion that an alleged contemnor must be given notice and an opportunity to be heard after any substantial delay in final adjudication.
The Court in Albers v. Townes, Ky., 532 S.W.2d 443 (1975), reiterated the rule that the judge may resolve any issue of fact or law at the hearing as long as he does not impose a punishment of imprisonment greater than six month's time. A jury upon unanimous verdict and under instructions including the reasonable doubt protection may impose a punishment of greater than six months after determining for itself the guilt of the contemnor. See
Local No. 1667, United Auto Workers v. Kawneer Company, Inc., Ky., 490 S.W.2d 747, 748 (1973);
Armstrong v. Bryan, Ky., 273 S.W.2d 835, 836 (1954).
In conclusion, it is our opinion that the Office of the Commonwealth's Attorney is duty bound to represent the Commonwealth in criminal contempt proceedings.