THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as In re Contempt of Skilling ,
8 FSM Intrm. 419 (App. 1998)

[8 FSM Intrm. 419]

IN THE MATTER OF THE CONTEMPT
OF HARRY H. SKILLING,
Appellant.

APPEAL CASE NO. K1-1996
KOSRAE CRIMINAL ACTION NO. 123-96

OPINION

Submitted:  April 4, 1998
Decided:  August 4, 1998

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCE:
For the Appellant:     Richard C. Martin, Esq.
                                    Attorney General
                                    Kosrae Department of Justice
                                    P.O. Box 870
                                    Lelu, Kosrae FM 96944

*    *    *    *

HEADNOTES
Contempt
     In the Kosrae State Code, contempt of court is defined as intentionally obstructing court proceedings or court operations directly related to the administration of justice or intentionally disobeying or resisting the court's writ, process, order, rule, decree or command.  In re Contempt of Skilling, 8 FSM Intrm. 419, 424 (App. 1998).

Contempt
     Section 6.1104 of the Kosrae Code expressly gives criminal contempt defendants certain due process safeguards.  In re Contempt of Skilling, 8 FSM Intrm. 419, 424 (App. 1998).

[8 FSM Intrm. 420]

Constitutional Law ) Due Process; Contempt
     In the vast majority of criminal contempt cases, the defendant is given substantially those procedural rights normally accorded to defendants in other criminal cases.  In re Contempt of Skilling, 8 FSM Intrm. 419, 424 (App. 1998).

Contempt
     In order to maintain order in the courtroom, courts have a limited power to make a finding of contempt "summarily" where the contemptuous conduct takes place during courtroom proceedings and is personally observed by the judge. This exception is typically used when the accused disrupts courtroom proceedings and the judge must act immediately to restore order.  Fewer procedural safeguards are required in such contexts because the events have occurred before the judge's own eyes and because a reporter's transcript is often available, a hearing is less critical to ensuring that the defendant is treated fairly. In re Contempt of Skilling, 8 FSM Intrm. 419, 424 (App. 1998).

Contempt
     The Kosrae Code and Rules of Criminal Procedure provide that a court may summarily punish a contempt committed in its presence if the justice directly saw or heard the conduct constituting the contempt and so certifies.  In re Contempt of Skilling, 8 FSM Intrm. 419, 424 (App. 1998).

Contempt
     In situations in which attorneys or witnesses have been held in criminal contempt of court for failure to appear at court hearings, the FSM Supreme Court trial court has given notice that it was considering holding the defendant in criminal contempt, has taken testimony from the defendant, and has considered whether the defendant's conduct in missing the hearing was intentional.  In re Contempt of Skilling, 8 FSM Intrm. 419, 424-25 (App. 1998).

Contempt
     Under Kosrae state law, summary contempt is only appropriate when the contempt is committed in the court's presence, and when the presiding justice directly saw or heard the conduct constituting the contempt.  In re Contempt of Skilling, 8 FSM Intrm. 419, 425 (App. 1998).

Contempt
     Under Kosrae law, summary contempt is not appropriate for someone's failure to appear on time.  Since the alleged contempt is an indirect contempt ) a contempt not in the presence of the judge ) the court should schedule a show cause hearing to enable the accused to present his own defense.  In re Contempt of Skilling, 8 FSM Intrm. 419, 425 (App. 1998).

Contempt
     Summary contempt proceedings are viewed with disfavor.  In re Contempt of Skilling, 8 FSM Intrm. 419, 425 (App. 1998).

Contempt
     Contempt of court is not a matter between opposing litigants, it is a matter between the offending person and the court.  In re Contempt of Skilling, 8 FSM Intrm. 419, 426 (App. 1998).

Contempt
     Criminal contempt requires a specific intent to consciously disregard an order of the court, and willfulness does not exist where a defendant pursues in good faith a plausible though mistaken alternative.  Mere negligent failure to comply with an order of the court is not enough.  In re Contempt of Skilling, 8 FSM Intrm. 419, 426 (App. 1998).

[8 FSM Intrm. 421]

Contempt
     There must be an identifiable, specific order in the record creating an affirmative duty to appear in order for an alleged contemnor to be guilty of contempt for non-appearance.  In re Contempt of Skilling, 8 FSM Intrm. 419, 426 (App. 1998).

Constitutional Law ) Kosrae ) Due Process; Contempt
     A summary order of contempt for non-appearance violates an accused's right to due process under the Kosrae Constitution.  Accordingly, on appeal the conviction will be vacated and remanded.  In re Contempt of Skilling, 8 FSM Intrm. 419, 426 (App. 1998).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This appeal is taken from a Finding of Contempt and Order of Fine issued by Kosrae State Court against Appellant Harry Skilling on October 17, 1996.  That Court found Mr. Skilling in criminal contempt for arriving late to a hearing in a case in which he was representing Kosrae State as a prosecutor, and ordered him to pay a fine of $5.00.

     Because Kosrae State Court found Mr. Skilling in criminal contempt before he arrived in court, without affording him notice and a full opportunity to explain why he had failed to appear on time, we vacate the conviction.  We remand this matter to the Kosrae State Court for proceedings consistent with this opinion.

I.  Background
     On the morning of October 17, 1996, Appellant Harry Skilling appeared in court as a prosecutor for Kosrae State in Kosrae State v. Rickson W. George, Criminal Case No. 123-96.  Trial was to commence at 9:00 a.m.  Assistant Public Defender Patrick Olter appeared on behalf of the defendant.  Defendant Rickson George failed to appear for trial.

     Mr. Skilling informed the Court that the State had its witnesses present and was ready to proceed.  Defense counsel Olter could not explain his client's absence.  Following discussion on the record as to how best to proceed in the absence of the Defendant Rickson George, the Court decided to issue a bench warrant to bring the defendant before the Court in the afternoon for a 1:00 p.m. hearing.  At that time, defendant would be asked to show cause why he should not be held in contempt for failing to appear for trial in the morning and trial would be rescheduled.

     The following discussion occurred between defense counsel and the Court before the decision was made to schedule an afternoon hearing:

Counsel Olter:  Excuse me, before you issue your ruling [on Defendant Rickson George's contempt], like we all know, we don't know yet, maybe he is on his way and got into an accident . . . Perhaps when he gets here his reasons might be good.  Therefore, I'm with Counsel Skilling's submissions.  Let's proceed on with the first step.  We proceed on the show cause so the Court can find out the reason.  If the Court finds that [Rickson George's] reasons weren't excusable, then Court can take probable actions against him.  He is entitled to be held in contempt for the reason of not showing up if the Court deems proper.  I think the most appropriate thing to do at this time is to find out the exact

[8 FSM Intrm. 422]

reason why he did not show up at nine o'clock, then afterwards Court may decide whether to proceed on with the case or order continuance.

*  *  *  *

Court:  . . . I could order these policemen to remain but as I see it, I feel that it's really unfair to these people.  Therefore a bench arrest is issued upon Rickson W. George to appear here at one o'clock.  We'll show cause him and the trial in this case will be continued.  I'm not going to order these witnesses to remain here today, but please you may go now and the trial will be set and you will be notified.  Court will set the trial or maybe you have preference for next week[.]

Appellant's Brief, Transcript of October 17, 1996 Hearing (hereinafter "App. Br. Tr.") at A7.  A few minutes later, the Court again explained the purpose of its one o'clock hearing:

Court:  Okay, we will issue bench arrest on Rickson W. George.  Bench arrest upon him, bring him to jail until one o'clock.  We'll meet at one o'clock for his show cause at which time we will set trial for next week. Right there's no objection for the trial?
 
Counsel Olter:  Is that what you mean by setting it at a later date?

Court:  Yes.  I will review the calendar for next week and when we meet at one o'clock I will announce the date and time of the trial.  As for the discovery, I'm sure you both know the rules . . . .

Id. at A8-A9.  After discussion of other issues, the Court announced as follows:

Court:  Okay, for this case we will issue bench arrest upon Rickson for one o'clock if he arrested before one o'clock.  We will meet here at one o'clock.  I hope Counsel Skilling and Mr. Olter you both will make yourself available at one o'clock.  If he's not around by one o'clock, this Court will rule on that.

Counsel Olter:  Perhaps it might be good to have the police officer to report to Court whether he's available or not especially to the Counsels. So we both can know whether the time set will be rescheduled.  If that's possible, I request that.

Court:  That is possible.  Very good comment.  If the arrest is not executed by one o'clock, obviously this Court will renew the bench arrest and perhaps extend it.  Next case) Clerk of Court is to issue bench arrest, Bailiff, Airine give that to Officer Sigrah when it's done.

Id. at A13-A14.

     An arrest warrant issued, and Mr. George was brought before the Court on the same afternoon.  When the Court reconvened at 1:00 p.m., Mr. George and Mr. Olter were present, but Mr. Skilling was not.  The Court asked Mr. Olter to confirm that it was in fact 1:00 p.m., and then summarily held Mr. Skilling in contempt of Court:

Court:  Mr. Olter, let me ask you, you remember what time it was?

Mr. Olter:  One o'clock.

[8 FSM Intrm. 423]

Court:  Okay, we both have the same recollection.  For that reason, Mr. Prosecutor is held in contempt of Court and hereby ordered to pay a fine of $5.00.  Let's proceed with Rickson George.  Rickson, your case was set for trial this morning but you did not appear.  Before we proceed on further, Mr. Olter, do you have anything to submit on behalf of your client?

Id. at B2.  The case then proceeded with Mr. George's show cause hearing.  After the Court ruled that Mr. George was not in contempt of Court for failing to appear for his trial at 9:00 a.m., because he had never been served with notice of the trial date, the Court apparently informed Mr. Skilling personally for the first time that he had been found in contempt:
 
Court:  Okay, this case will be continued to Monday.  Trial on this case will be held on Monday at one o'clock.  Okay?  You [Rickson George] are now free.  I accept your submission.  But before anything further, Mr. Prosecutor, you were late therefore, I hold you in contempt because the setting of this court was made to one o'clock.  The defense side and my side, we both agreed that we were served for one o'clock.  This Court tried to contact you but you were not available, therefore, you are held in contempt and a fine of $5.00 is imposed.  If you are not satisfied with this holding, you have the right to apeal [sic].

*  *  *  *

Mr. Skilling:  Your Honor, if I may.  I thought this case, as I understood, that suppose [sic] to be a show cause.  Bench arrest was executed upon him for a show cause at one o'clock then any setting of this court will be held at later time.

Court:  Yes, that's it.  That means we supposed to be here at one.

Mr. Skilling:  If I was miscommunicated, my understanding was that this court will determine whether or not to hold the defendant in contempt then will set this trial by sending notices to counsels.  Therefore I had no intentions to interfer [sic] or obstruct ruling or setting of this Court but that was my understanding but I must have been miscommunicated.

Court:  Okay, I believe you, like you said, we were set for one o'clock, the Court, you defense and also the defendant.

Mr. Skilling:  For record purposes, Your Honor, I'd like to put in record.  I'd like to appeal the Court's ruling on this contempt.

Court:  Okay, your fine is due on Thursday however, your appeal is well taken.  Okay Mr. Skilling?  Is that clear?

Id. at B5-B6.  The Court subsequently issued a written finding which stated that on October 17, 1996, at 1:20 p.m., the Court had issued a contempt order against the appellant because he was late to proceed in another criminal matter in which he was representing the State, and had fined him $5.00.  Finding of Contempt and Order of Fine (Oct. 17, 1996).

     Mr. Skilling filed his Notice of Appeal and Motion for Stay of Sentencing on October 22, 1996.  On appeal, he contends that the trial court violated his constitutional right to due process by finding him guilty of criminal contempt and imposing a fine in his absence, without giving him notice or

[8 FSM Intrm. 424]

conducting a hearing.  He argues that there was no immediate necessity for a summary contempt proceeding against him.  Instead, he should have been given an opportunity to explain why he was late and the Court should have fully considered these reasons before it rendered its judgment and sentence.  App. Br. at 3-6.  Kosrae State Court did not present a written brief and waived oral argument.

II.  Discussion
     The Kosrae State Code defines contempt of court as follows:  "Section 13.604.  Contempt of Court.  Contempt of Court is intentionally obstructing Court proceedings or Court operations directly related to the administration of justice or intentionally disobeying or resisting a law for [sic] writ, process, order, rule, decree or command of the Court.  Contempt of Court is a category three misdemeanor." Kos. C. 13.604.  Section 6.1104 of the Kosrae State Code expressly gives defendants in criminal contempt situations certain due process safeguards:

Section 6.1104.  Contempt.

      (1)  In an adjudication of contempt:

(a)  The Court gives a person accused of civil contempt . . . .

(b)  The Court gives a person accused of criminal contempt written notice of the charge and an opportunity to defend.  The Court does not impose a sentence of imprisonment or a fine greater than $100 unless it affords the accused written notice of the charge, a speedy public trial, and the opportunity to confront the witnesses against him, to compel the attendance of witness [sic], to have counsel and to be released on bail pending adjudication of the charge.  The Court makes a charge within three months of the alleged contempt and does not charge a person twice for the same alleged contempt.  The Court may summarily punish a contempt committed in its presence.

Kos. C. 6.1104 (second emphasis added).

     In the vast majority of criminal contempt cases, the defendant is given substantially those procedural rights normally accorded to defendants in other criminal cases.  In re Iriarte (II), 1 FSM Intrm. 255, 260 (Pon. 1983) (explaining that these rights include, at a minimum, the right to receive reasonable notice of the charges, a right to examine any witnesses against the defendant, to offer testimony, and to be represented by counsel).  Id.  However, in order to maintain order in the courtroom, courts have a limited power to make a finding of contempt "summarily" where the contemptuous conduct takes place during courtroom proceedings and is personally observed by the judge.  Id.  This exception is typically used where the accused disrupts courtroom proceedings and the judge must act immediately to restore order.  Id. at 260 (citing Ex parte Terry, 128 U.S. 289, 95 S. Ct. 77, 32 L. Ed. 405 (1888)).  Fewer procedural safeguards are required in such contexts, based on the belief that because the events have occurred before the judge's own eyes and because a reporter's transcript is often available, a hearing is less critical to ensuring that the defendant is treated fairly. In re Iriarte (I) 1 FSM Intrm. 239, 250 (Pon. 1983) (citing Taylor v. Hayes, 418 U.S. 488, 499, 94 S. Ct. 2697, 2703, 41 L. Ed. 2d 897, 908 (1974)).  In keeping with this accepted practice, Rule 42(a) of the Kosrae Rules of Criminal Procedure provides that a criminal contempt may be punished summarily if the justice directly saw or heard the conduct constituting the contempt and so certifies.  Kos. Crim. R. 42(a).  The Kosrae State Code, cited above, provides that a court may summarily punish a contempt committed in its presence.  Kos. C. 6.1104.

     This Court has previously addressed situations in which attorneys or witnesses have been held

[8 FSM Intrm. 425]

in criminal contempt of court for failure to appear at court hearings.  In each case, the trial court has given notice that it was considering holding the defendant in criminal contempt, has taken testimony from the defendant, and has considered whether the defendant's conduct in missing the hearing was intentional.  See In re Contempt of Cheida, 7 FSM Intrm. 183 (App. 1995) (witness's contempt conviction reversed and judgment of acquittal entered where witness attempted to notify the court that he would be late, and arrived late because he felt compelled to attend conflicting State Legislature proceedings); In re Tarpley (II), 3 FSM Intrm. 145 (App. 1987) (appellate division reversed attorney's contempt conviction where trial court had expressly found that attorney's failure to ensure that his client was represented at a juvenile proceeding was negligent, rather than willful). Compare In re Robert, 1 FSM Intrm. 18 (Pon. 1981) (trial court found that attorney's intentional failure to take precautionary steps to avoid being late for scheduled court hearing constituted an "intentional obstruction of the administration of justice" within the meaning of 4 F.S.M.C. 119(1)(a)).  However, none of the above cases involved a summary contempt ruling.

     In In re Iriarte (I), 1 FSM Intrm. 239 (Pon. 1983), the trial court had an opportunity to review a due process challenge to a municipal court judge's summary contempt ruling, made in response to disruptive conduct in the courtroom.  The Court ruled that because the judge had failed to find defendant in contempt while he was still present in the courtroom, the court's written order finding defendant in contempt was void.  Id. at 251.  See also Iriarte (II), 1 FSM Intrm. at 257 (citing court order noting that defendant had exited the courtroom before the judge had had an opportunity to advise him he was in contempt).  The reviewing court reasoned that once defendant had left the area, there was no immediate necessity to act without a normal hearing to protect the integrity of court proceedings.  Iriarte (I), 1 FSM Intrm. at 251.  See also Iriarte (II), 1 FSM Intrm. at 262 ("when the necessity for immediate action ended, so too did the court's power to employ summary contempt").

     Under Kosrae State law, summary contempt is only appropriate when the contempt is committed in the presence of the Court, and when the presiding justice directly saw or heard the conduct constituting the contempt.  Kos. C. 6.1104; Kos. Crim. R. 42(a).  In this case, Mr. Skilling was found in contempt and fined before he even appeared in the courtroom.  When he did arrive, the Court apparently waited until after it had concluded its proceedings to announce to him that he had been found in contempt.  After Mr. Skilling then attempted to explain that he must have misunderstood the Court's instructions at the morning session, the Court did not provide him with a full opportunity to explain why he had failed to arrive at the start of the hearing, and it did not ascertain whether his tardiness was intentional or consider whether that tardiness had obstructed court proceedings in any way.  App. Br. Tr. at B5-B6.

     We find that under Kosrae law, summary contempt was not appropriate with Mr. Skilling absent from the courtroom.  Iriarte (I), 1 FSM Intrm. at 251.  Because the hearing was able to proceed in Mr. Skilling's absence, there was also no need for a summary contempt proceeding once he arrived.  Since the alleged contempt was an indirect contempt ) a contempt not in the presence of the judge ) the Court should have scheduled a show cause hearing to enable Mr. Skilling to present, in his own defense, arguments why he should not be held in contempt, and to give him time to order a transcript if he felt that perhaps he had been misinformed or misunderstood at the morning court session.  The short opportunity the Court gave Mr. Skilling to explain his absence on the record, after he had already been held in contempt of court, was not sufficient to afford him his right to due process.

     Summary proceedings are viewed with disfavor.  Iriarte (II) at 261.  The same reasoning behind the Court's desire to give Defendant George a show cause hearing when he failed to appear for trial applies to Mr. Skilling's unexplained absence from Defendant George's show cause hearing.  Although we can certainly appreciate the trial court's frustration when counsel fails to appear for a hearing, all defendants to criminal contempt charges are entitled to the same minimum due process guarantees.

[8 FSM Intrm. 426]

     The question presented to this Court on appeal was not whether there was sufficient evidence on the record to sustain Mr. Skilling's conviction for criminal contempt, but rather whether Mr. Skilling had been found guilty without due process of law.  Nevertheless, we note that the Kosrae State Court made no explicit finding that Mr. Skilling had intentionally obstructed Court proceedings or intentionally disobeyed an order or command of the Court, either on the record on October 17, 1996, or in its October 17, 1996 written Finding of Contempt and Order of Fine.  See Kos. C. 13.604.  Indeed, the record shows that the presence of this requisite element of intent to disobey is questionable.  The trial court responded, "I believe you . . ." after hearing Mr. Skilling's explanation of his failure to appear and that he "had no intentions to interefer [sic] or obstruct ruling or setting of this Court. . . ."  Mr. Skilling may have thought that his presence was not required at Defendant George's afternoon show cause hearing, because contempt of court is not a matter between opposing litigants, it is a matter between the offending person and the court.  See Ononpwi v. Aizawa, 6 FSM Intrm. 537, 540 (Chk. S. Ct. App. 1994).  Mr. Skilling's witnesses for the underlying criminal trial had been sent home by the Court in the morning session, and the parties had already been informed that trial would be continued.  Criminal contempt requires a specific intent to consciously disregard an order of the court, and willfulness does not exist where a defendant pursues in good faith a plausible though mistaken alternative.  Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 908, 909 (3d Cir. 1992).  Mere negligent failure to comply with an order of the court is not enough.  In re Tarpley (II), 3 FSM Intrm. 145 (App. 1987).  There must be an identifiable, specific order in the record creating an affirmative duty to appear in order for an alleged contemnor to be guilty of contempt for non-appearance.  In re Powell, 5 FSM Intrm. 114, 117 (App. 1991).  These are issues that the Kosrae State Court should bear in mind on remand.

     We find the Kosrae State Court's order of contempt and fine violated appellant's right to due process under Article II, 1(b) of the Constitution of the State of Kosrae.  Accordingly, appellant's conviction is vacated.  This matter is remanded to the Kosrae State Court to either conduct a hearing on the criminal contempt charge that affords the appellant his right to due process, or to dismiss that criminal contempt charge if it finds on review of the evidence that appellant's conduct did not constitute willful disobedience to an order or command of the Court.

III.  Conclusion
     Appellant's conviction is vacated.  This matter is remanded to the Kosrae State Court for further proceedings consistent with this opinion.

*    *    *    *
 
                                                                                                                                                                                                                                                                                                           
ystem32\wininet.dll (6.0.2900.2937) 2.296: Source:C:\WINDOWS\system32\SET123.tmp (6.0.2900.2995) 2.296: Destination:C:\WINDOWS\system32\urlmon.dll (6.0.2900.2960) 2.296: Source:C:\WINDOWS\system32\SET124.tmp (6.0.2900.2995) 2.296: Destination:C:\WINDOWS\system32\shlwapi.dll (6.0.2900.2937) 2.296: Source:C:\WINDOWS\system32\SET129.tmp (6.0.2900.2995) 2.296: Destination:C:\WINDOWS\system32\mshtml.dll (6.0.2900.2963) 2.296: Source:C:\WINDOWS\system32\SET133.tmp (5.1.2600.2995) 2.296: Destination:C:\WINDOWS\system32\xpsp3res.dll (5.1.2600.2937) 2.328: SetProductTypes: InfProductBuildType=BuildType.IP 2.328: SetAltOsLoaderPath: No section uses DirId 65701; done. 2.468: CreateUninstall = 1,Directory = C:\WINDOWS\$NtUninstallKB920213$ 2.484: LoadFileQueues: UpdSpGetSourceFileLocation for halaacpi.dll failed: 0xe0000102 2.500: ref tag c:\windows\system32\sp4.cab does not exist 2.500: ref tag c:\windows\system32\sp3.cab does not exist 2.500: ref tag c:\windows\system32\sp2.cab does not exist 2.500: ref tag c:\windows\system32\sp1.cab does not exist 2.500: ref tag c:\windows\system32\driver.cab does not exist 2.515: ref tag c:\windows\system32\fp40ext.cab does not exist 2.515: ref tag c:\windows\system32\fp40ext1.cab does not exist 2.515: ref tag c:\windows\system32\wms4.cab does not exist 2.515: ref tag c:\windows\system32\wms41.cab does not exist 2.515: ref tag c:\windows\system32\ims.cab does not exist 2.515: ref tag c:\windows\system32\ims1.cab does not exist 2.515: ref tag c:\windows\system32\ins.cab does not exist 2.515: ref tag c:\windows\system32\ins1.cab does not exist 2.546: Starting AnalyzeComponents 2.546: AnalyzePhaseZero used 0 ticks 2.546: No c:\windows\INF\updtblk.inf file. 2.546: OEM file scan used 0 ticks 2.718: AnalyzePhaseOne: used 172 ticks 2.718: AnalyzeComponents: Hotpatch analysis disabled; skipping. 2.718: AnalyzeComponents: Hotpatching is disabled. 2.718: FindFirstFile c:\windows\$hf_mig$\*.* 3.109: KB920213 Setup encountered an error: The update.ver file is not correct. 3.109: KB920213 Setup encountered an error: The update.ver file is not correct. 3.109: AnalyzeForBranching: Using effective target C:\WINDOWS\system32\SET133.tmp for c:\windows\system32\xpsp3res.dll 3.125: AnalyzeForBranching used 16 ticks. 3.156: AnalyzePhaseTwo used 31 ticks 3.156: AnalyzePhaseThree used 0 ticks 3.156: AnalyzePhaseFive used 0 ticks 3.156: AnalyzePhaseSix used 0 ticks 3.156: AnalyzeComponents used 610 ticks 3.156: Downloading 0 files 3.156: bPatchMode = TRUE 3.156: