The Volokh Conspiracy
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From In re Martel, decided yesterday by the South Carolina Court of Appeals (Judges Paula Thomas, Stephanie McDonald, and Blake Hewitt):
This case involves a family court judge's direct contempt citation against Appellant, attorney Lauren Martel. Martel argues the family court erred in finding her in criminal contempt at a hearing in which the judge's impartiality and temperament were questioned. We agree, and we reverse the finding of contempt.
The first family court judge assigned to hear the emergency motion in this contentious custody litigation properly recused herself "to avoid any appearance of impropriety" when Martel's client [Mother] …, expressed concerns about the first judge's familiarity with the family of [Father] …. The then-chief administrative judge for Fourteenth Circuit family court matters stepped in to the January 10, 2019 emergency hearing and rescheduled the matter for the following week. At that time, Martel advised that this second judge might have a conflict as well. In response, the family court instructed her to "file something. We want it in writing."
The following day—January 11—Martel emailed the scheduling clerk—copying the family court judge, Father's counsel, and others—and identified several issues she believed necessitated the second judge's recusal as well. We will not detail all of the concerns here, but the email included an allegation that the second judge "appears to be practicing law in this case rather than presiding over this serious matter in [an] unbiased manner" possibly due to his close relationships with Father's family and counsel and the judge's personal bias against Mother's attorney, Martel….
On January 14, Martel filed a motion titled "Notice to Recuse to Continue and Order" seeking recusal on several grounds; the motion was accompanied by Mother's affidavit supporting her recusal request and seeking a change of venue. Martel also attached her own affidavit in support of recusal and a venue change. Both affidavits noted the judge's relationships with Father's family and Father's counsel; Mother's affidavit made a number of other troubling claims. The family court addressed the recusal motion at a January 15 hearing and found Martel in criminal contempt after she declined to answer the court's hostile questions about her affidavit. Concerned that she had a professional responsibility to her client not to become a witness in the case, Martel offered to withdraw her affidavit.
The family court subsequently instructed the bailiff to take Martel into custody and told her he was reporting her to the supreme court. When she again emphasized that she did not want to become a witness to the detriment of her client, the judge responded that Martel was already a witness due to "the allegations about [him]" and noted, "I'm gonna call the Supreme Court and see what we're gonna do about you." Later that day, the judge issued a handwritten order of contempt ordering Martel to pay a $500 fine by 12:00 p.m. on January 16, 2019. The order further stated:
The Defendant's Counsel Lauren Martel, Esquire has engaged in indignities that have interfered with the Court's ability to administer to [sic] judicial functions. The attorney refused to comply with a court order and defied the authority of this court. The attorney was rude and disrespectful towards the court. She constantly spoke out of turn and interrupted this court.
On January 22, the Chief Justice issued an order prohibiting this family court judge from acting as chief judge for purposes of administering the underlying child custody action from which Martel's contempt citation arose. The Chief Justice's order designated an out-of-circuit family court judge to act as administrative judge for matters involving Mother and Father's case.
On March 8, the family court judge filed his formal order of contempt, claiming Martel's affidavit "made numerous false allegations" and contained "slanderous and disrespectful unfounded allegations about this Judge claiming that [he was] bias [sic] and prejudice [sic] against her and her client, Tara Rhoten." The court found Martel "defiantly refused to take the stand to be questioned about the affidavit." ….
From the outset of the January 15 hearing, the atmosphere was tense and combative—there was confusion about which orders the parties were discussing, the family court judge and attorneys talked over each other multiple times, and the family court referenced a constitutional provision that neither party raised and had no relevance to the family court matter. Although the family court judge initially properly cautioned the attorneys and parties about "order and decorum," the judge's own behavior during the proceeding was concerning.
In addressing Mother's motion to recuse, the family court discussed Martel's and Mother's affidavits at length and vehemently and intemperately denied all allegations set forth in the affidavits. After this heated discussion, Martel asked for a break to regain her composure, and the family court summarily denied her request. However, the court did grant Martel's subsequent request for a bathroom break.
Following this recess, the judge called Mother to the stand and essentially cross-examined her about the allegations set forth in Mother's affidavit, interrupting the witness multiple times as she attempted to answer the court's questions. Six pages in to the court's questioning, the judge asked Mother, "Now, what other reasons do you believe—what other facts do you have that would indicate I wouldn't be fair?" Mother responded, "The—just the way you're acting right now," noting the court's bullying behavior.
The attorneys then questioned Mother about her affidavit. When Mother stepped down from the witness stand after Father's attorney questioned her, she commented, "Again, bullying." The judge responded by asserting Mother had alleged he was a bully but had "offered no proof of that." The court advised Mother he was considering holding her in contempt, noting, "You have to follow the rules. This is a court of law." The judge then turned to Martel, stating, "That goes for you too, please. Now, I'm gonna call you to the stand."
Martel responded by asking what order of the court Mother had violated. This angered the judge, who responded by demanding that Martel take the stand to discuss the allegations raised in her own affidavit. The family court accused Martel of making conclusory and slanderous allegations in her recusal filings but stated from the bench that he would recuse himself "from ever hearing one of [Martel's] cases." The court's subsequent March 13 order noted the judge believed he could "no longer be fair or impartial on any case wherein, Lauren Martel, Esquire, appear[ed] before [him]." Still, even after stating from the bench that he would "do an order" of recusal, the family court continued to demand that Martel take the stand to testify about her affidavit.
When Martel asked whether she needed to obtain her own lawyer, the family court declined to respond but refused to give her an opportunity for a recess to contact counsel or otherwise assess whether she should testify—the court simply demanded an immediate "yes or no." And, the family court ignored Martel's expressions of concern regarding the duty she owed Mother not to act as a witness in the case.
We find that when Martel expressed concern that she might need an attorney or that the Rules of Professional Conduct might bar her from acting as a witness in her client's case, the family court should have given her the opportunity to seek counsel and consider whether she was able to properly obey the court's demands. While Martel's own behavior during this proceeding certainly was not perfect, our review of the transcript reveals the behavior of the family court judge was vastly more problematic…. "Attorneys are placed in precarious positions when forced to repeatedly call a court's attention to its own errors." …
Dayne C. Phillips, of Price Benowitz, LLP, represents Martel.