Defendant's Giving E-Mail Address as Prosecutor's Name + "[e-mail]" Isn't Contempt of Court

Readers, these are trained pro se litigants; do not try this at home (especially since other courts might disagree).

From Commans v. Dunbar, decided Friday by Judge Jennifer M. Perkins, joined by Judge Kent E. Cattani:

Daniel Commans appeals his conviction and punishment for contempt of court for providing a vulgar email address with a coded insult to the prosecutor during a virtual court hearing. We reverse because Commans' behavior in providing the email address, though sophomoric, did not warrant a contempt finding, much less 180 days in jail….

On August 29, 2024, the Lake Havasu Municipal Court held an arraignment hearing for Commans on misdemeanor charges for resisting arrest and criminal trespass. Commans attended virtually and was not represented by counsel. At the outset of the hearing, the judge asked Commans to provide an email address. Commans provided two email addresses, stating that he had trouble getting emails in the past. He spelled out the second one: "[e-mail]." To confirm, the judge read it back letter by letter.

Neither the judge nor the prosecutor, Charles Yaeger, reacted to the email address on the record, and the hearing proceeded uninterrupted. The court appointed an attorney to represent Commans and continued the arraignment to September 12, 2024. Later that day, the court issued a written order notifying Commans that, at the September 12 hearing, he would have to "show cause why [he] should not be held in contempt of Court for providing the … email address."

At the September 12 hearing, Commans accepted a plea deal resulting in a sentence of 180 days in jail on the misdemeanor charges. The court then stated it had already found Commans in "direct contempt," so only sentencing was at issue. His attorney argued the punishment should be mitigated because the email address was protected speech under the First Amendment to the United States Constitution. Commans himself asserted it was a real email address. The court imposed the maximum allowable punishment of 180 days for contempt to run consecutive to any other jail time. In doing so, the court stated: "[T]here is free speech. The Court is a little bit different. You don't get to say anything you want. This was vulgar. It was directed at an officer of the Court clearly designed for that purpose." …

The court rejected Commans' First Amendment argument:

We agree with Commans that his speech did not constitute "fighting words." There was no indication that Commans' words provoked or were likely to provoke a violent reaction from people listening to the virtual hearing. His speech remained subject to First Amendment protections. But Commans was not entitled to use vulgarity without repercussion in a courtroom setting. See Zal v. Steppe (9th Cir. 1992) ("[T]he trial judge is charged with preserving the decorum that permits a reasoned resolution of issues. Zealous counsel cannot flout that authority behind the shield of the First Amendment.").

But the court concluded that the judge abused his discretion in finding Commans guilty of contempt:

By rule, an Arizona court may hold a person in criminal contempt if that person … ["]willfully engages in any other unreasonable conduct that obstructs the administration of justice or lessens the court's dignity and authority.["] … The email address drew no attention until after the hearing and thus could not have obstructed the administration of justice….

[As to the dignity and authority prong, t]wo cases provide helpful guidance. In In re Little (1972), the United States Supreme Court invalidated a contempt order imposed on a criminal defendant for stating during trial that "the court was biased, [ ] had prejudged the case[,] and that [the criminal defendant] was a political prisoner." The contempt order was governed by a statute that made any behavior "directly tending to interrupt [the court's] proceedings, or to impair the respect due to its authority" punishable for contempt. The Supreme Court observed that vehement language alone does not confer "the power to punish for contempt," and it invalidated the contempt order because the defendant had not "disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties."

In Hirschfeld v. Superior Ct. (Ariz. App. 1995), the superior court held in contempt an attorney representing a father in a custody matter. The attorney had physically harassed the mother by following her around the judge's chambers while demanding to know the child's whereabouts in an abusive manner. This Court affirmed, concluding that harassing and intimidating litigants, witnesses, attorneys, and jurors in or near the courtroom lessens the dignity and authority of the court. Citing Little, this Court warned, however, that the contempt power "should be used with caution," and should not "be pressed beyond reasonable limits."

Here, Commans was not loud or boisterous—he calmly spelled out the email address. Commans' conduct did not disrupt the proceeding—the vulgarity of the email address went unnoticed until after the hearing. He did not harass or intimidate anyone—the childish insult may have embarrassed the prosecutor, but it did not intimidate or harass him. And Commans received no warning against using offensive or insulting language in the courtroom. If Commans had received such a warning, providing the vulgar email address would have constituted a more direct challenge to the court's authority and been a greater affront to the court's dignity and authority. The lack of a warning weighs against holding him in contempt….

The court also held that the lower court "erred by finding Commans in contempt without first providing him an opportunity to be heard":

Courts may hold a person in contempt without notice or a hearing when "immediate punishment is essential to prevent demoralization of the court's authority," otherwise it violates principles of due process. In re Oliver (1948). Absent a "substantial interest in rapidly coercing compliance and restoring order," a defendant should receive notice and an opportunity to be heard. Here, there was no need for immediate punishment because the vulgar email address was not noticed until after the hearing….

Judge David Weinzweig (whose name readers may know from his recent guest-blogging about his Zen and the Art of Persuasive Writing) agreed as to the First Amendment and due process, but concluded that, "because a reasonable judge might conclude that Commans engaged in contemptuous conduct, I would remand for the municipal court to afford due process." He also added:

The Eighth Amendment prohibits "cruel and unusual punishments." As relevant to noncapital cases, this includes "sentences that are grossly disproportionate to the crime committed." Punishment must be proportionate; a sanction should match the severity of misconduct.

Six months in jail for an offensive email address exceeds constitutional bounds. Trial courts have broad discretion to maintain decorum in their courtrooms, but that discretion has limits. A 180-day sentence transforms contempt power from a tool to maintain order into a cudgel for punishing disrespect.

Thanks to Michael Smith (Smith Appellate Law Firm) for the pointer.

Bryan R. Whitney and Christopher Stafford (Whitney Whitney Baldridge Atkinson) represent Commans.

Comments

[Bored Lawyer]

Would it be different if he referred to the judge instead of the prosecutor in the same email address?

[apedad]

Reminds me of Larry Flynt's tshirt, "Fuck this Court."

[Frank Drackman]

What an Asshole, wouldn't be surprised if somebody shot him.

[ReaderY]

I agree with the dissent here with one small caveat. I agree that conduct very plausibly comes within the definition of contempt. I also agree that in a situation like this, a judge might arguably be biased by a sense of personal affront, and hence Due Process requires a different judge to determine whether contempt occurred and what the appropriate sentence should be.

I would, however, stop there. Having vacated the conviction and sentence on Due Process grounds, would not reach the sentence’s constitutionality with respect to Cruel and Unusual Punishment, under the constitutional avoidance doctrine.

However, I might well add a footnote that while there is no need to pass judgment on the constitutionality of the sentence given that it is beimg vacated on other grounds, nonetheless a six-month sentence for a single offensive insult would appear a bit much. I would cite to a series of cases where much more egregious and disruptive forms of contempt occurred. And I would then suggest that, assuming without deciding that contempt occurred in this case, it might be better as a matter of judicial prudence to reserve the maximum sentence for cases that had greater actual disruptive effect to the proceedings or that involved plausible threats of violence or similar.

[not guilty]

"I would, however, stop there. Having vacated the conviction and sentence on Due Process grounds, would not reach the sentence’s constitutionality with respect to Cruel and Unusual Punishment, under the constitutional avoidance doctrine."

This may not be the highest court to consider this matter. It is often prudent for an intermediate appellate court to address all issues raised, even though it finds one issue dispositive, for the benefit of any higher reviewing court.

[John F. Carr]

"did not warrant a contempt finding, much less 180 days in jail"

There should be a rule that the judge who is offended can do no more than remove the offensive person from court and refer for prosecution by a judge without emotional involvement. Supplement that with a categorical ban on more than an overnight stay for mere words.

A few years ago the appeals court in Massachusetts reversed a substantial contempt sentence for mouthing off the to the judge in court. The jailed person was a teenage girl with emotional problems. If you lock all of those up prom season is going to be mighty lonely.

[Rossami]

Agreed. Judges have an inherent conflict of interest in deciding contempt allegations within their own proceedings.

[Dr. Ed 2]

What if it was his address?

[Rossami]

It was, in fact, his working email address. One of them, anyway. Most people have multiple email addresses these days, some of them created for juvenile reasons.

[Dr. Ed 2]

That’s my point — what if he was to refuse to give it to the judge?

If the judge orders him to give the email address, and the judge doesn’t like what the address is, I think that’s the judges problem because the judge ordered him to say what it was.

[Gasman]

Just tried it. Google bounces it back as an invalid address.
That does not mean it was not valid at one point in the past.
So it's might still be up for grabs. Who here is going to be the next to own that address...

[Frank Drackman]

Play Stupid Games win Stupid Prizes, First Amendment says I can wear a Klan Robe at MLK Jr's Grave, good luck getting the First Amendment to pay your burial expenses.

[SRG2]

I just had an image of Josh writing an article defending a contempt finding for an appellant whose email address was "[e-mail]"

[Gasman]

That address too seems to be available, as it bounces back from Google as 'not found or unable to receive mail'.
Go for it.