Cite as In re Contempt of Cheida,
7 FSM Intrm. 183 (App. 1995)

[7 FSM Intrm. 183]




Argued:  February 1, 1994
Decided:  July 3, 1995

     Hon. Judah C. Johnny, Temporary Justice, FSM Supreme Court*
     Hon. Keske S. Marar, Temporary Justice, FSM Supreme Court**
     Hon. Harry H. Skilling, Temporary Justice, FSM Supreme Court***

     *Associate Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
     **Associate Justice, Chuuk State Supreme Court, Weno, Chuuk
     ***Associate Justice, Kosrae State Court, Lelu, Kosrae

For the Appellant:     Robert Diemer, Esq.
                                   Office of the Public Defender
                                   P.O. Box 245
                                   Tofol, Kosrae FM 96944

For the Appellee:      Susan Bussey, Esq.
                                    Chief of Litigation
                                    Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei FM 96941

*    *    *    *

     The intentional disobedience required for a conviction for contempt necessarily includes an element of voluntariness.  In re Contempt of Cheida, 7 FSM Intrm. 183, 185 (App. 1995).

     The tardiness of a person who appears before the court as a witness, not as an attorney, who was presented with an unexpected legitimate and confirmed conflict between the demands of two branches of government, and who made efforts to notify the court he would be late, cannot be considered intentional disobedience of the court's summons.  In re Contempt of Cheida, 7 FSM Intrm. 183, 186 (App. 1995).

[7 FSM Intrm. 184]

*    *    *    *

JUDAH C. JOHNNY, Temporary Justice Presiding:
     On February 5, 1993, the Chuuk trial division of the FSM Supreme Court adjudged Picho Cheida guilty of criminal contempt under 4 F.S.M.C. 119(1)(b) and fined him $20 based on a finding that he had made an intentional decision to disobey a summons to appear before the Court at a particular time.  Cheida appeals his conviction, arguing that he did not intend to disobey the summons and that the trial court improperly found him guilty of contempt based on mere negligence.  For the reasons discussed below we reverse the conviction.

Factual Background
     The appellant, Picho Cheida, is a staff attorney with the Chuuk State Legislature. On May 7, 1992, he was served with a summons to appear as a witness before the FSM Supreme Court, Chuuk State Trial Division (Benson, J. presiding), on May 8, 1992, at 2 p.m.  On May 8th the Legislature was in session and the appellant was the only one of the four staff attorneys who was present at work.  He was called to attend a Senate Committee hearing at 1:20 p.m. and was still in that hearing at approximately 1:45 p.m. when he was called to a Joint Session of the Chuuk State Legislature and the Chuuk State Executive Branch.  He left the Senate Committee, after passing a note to the Committee's Chairman or Vice Chairman explaining that he was needed in the House Chamber.

     When he left the Senate Committee meeting, approximately 15 minutes before he was scheduled to be in Court, the appellant asked a secretary with the Legislature to call the Court to say that he would be late in getting there.  Then the appellant proceeded to the joint session where he remained for approximately 10-15 minutes.  According to the appellant, he was unable to excuse himself from the joint session in order to reach the Court's hearing by 2 p.m.  He did, however, leave the session long enough to ask a secretary to call the Court a second time to say that he would be late for the scheduled Court proceeding.  The appellant states that he came straight to the Court once he left the joint session and arrived approximately 15 to 20 minutes after 2 p.m.  When he got to the Court, the proceeding had already been adjourned.

Trial Court Decision:
     On February 5, 1993, after trial, the Court (Yinug, J.), ruling orally, found the appellant guilty of contempt under 4 F.S.M.C. 119(1)(b), and fined him $20.  In a written decision issued that day, the Court explained:

     After weighing the testimony the court finds that the defendant made a conscious decision to disregard and disobey the court's lawful order to appear at the courthouse punctually, and by his own testimony arrived at the courthouse at least 15 minutes late.

At the time of the oral ruling, the Court stated:

     The decision he made was to disobey the court's order by deciding on his own that it will be all right to come in late.  And that's what he did.  He came in here and the hearing was over. . . .  [i]t was intentional in the sense that he didn't want to come at a particular time to the court's order.  It was not intentional in the sense that he w(ould) not cooperate at all, he was not going to show up.  He wanted to show up but he just

[7 FSM Intrm. 185]

couldn't do it under the circumstances.  So therefore, I think technically he was [in] contempt. . . .
Tr. at 58-59.

Standard of Review
     The Appellate Division is obliged to accept the factual findings of the Trial Court where there is credible evidence in the record to support the findings.  Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992); Engichy v. FSM, 1 FSM Intrm. 532, 556 (App. 1984).  The evidence must be viewed in the light most favorable to the Trial Court's factual determination.  Id.  We review the legal standard applied by the Trial Court on a de novo basis.

     The appellant was convicted criminal contempt of court under 4 F.S.M.C. 119(1)(b), which defines the offense as "any intentional disobedience or resistance to the Court's lawful writ, process, order, rule, decree, or command."  Contemptuous behavior includes not only intentionally avoiding a hearing, but also intentionally arriving late for a hearing.  See In re Robert (II), 1 FSM Intrm. 18, 19-20 (Pon. 1981) (attorney held in contempt for arriving at hearing 30 minutes late).

     In this case we conclude that the Trial Court applied an incorrect "intentional disobedience" standard when it convicted the appellant of criminal contempt.  In our view, "intentional disobedience," in the sense that the phrase is used in the code section on contempt, necessarily includes an element of voluntariness.  See Pennsylvania v. Local Union 542, 552 F.2d 498, 510, cert. denied, 434 U.S. 822 (1977) ("willfulness is an element of criminal contempt which must be proved beyond a reasonable doubt"); United States v. Seale, 461 F.2d 345, 368 (7th Cir. 1972) ("[t]he minimum requisite intent [to convict for criminal contempt] is . . . a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful").  A "volitional act" is an act done in the exercise of one's will.  Therefore, a volitional act is a willful act.  "Willful" means "intentional," that is "on purpose." Words and Phrases, Intentional.  Thus, an "intentional" act is one directed by person who is conscious of what he is doing, who has intelligence enough to understand the physical nature and consequences of the act, and who does it without compulsion of an irresistible physical force or an irresistible insane impulse.  Connors v. Pantano, 86 N.W.2d 367, 369 (Neb.).  Here, therefore, the uncontradicted testimony was that the appellant wished to comply with the summons but felt compelled to meet with the unexpected demands that the State Legislature placed on him at the last moment. We view that here, there was sufficient compulsion of irresistible force placed upon him by the State Legislature.  Indeed the Trial Court itself recognized this, and stated that the appellant "wanted to show up but he just couldn't do it under the circumstances."  Moreover, the appellant testified that he was aware that under the Legislature's rules he could be held in contempt by the Legislature for disruptive conduct.  That strongly supports the idea that the appellant did not arrive late voluntarily, but only because he felt compelled to do so by the State Legislature.

     The Trial Court read "intentional disobedience" to include not only voluntary disobedience, but also "any conscious" disobedience, and therefore found that the appellant was in contempt because he "made a conscious decision to . . . disobey the court's lawful order."  The application of this intent standard allowed the Trial Court to find the appellant in contempt for failing to show up in a timely fashion, despite the court's recognition that the appellant "wanted to show up but he just couldn't do it under the circumstances."  Under such a standard an individual who was kidnapped at gun-point on the way to a scheduled court appearance could be convicted of criminal contempt if he or she consciously decided to obey the demands of the kidnapper, knowing that the result would be that

[7 FSM Intrm. 186]

he/she will miss the hearing, rather than attempting to flee the gunman.  Therefore, it is clear that an individual's conscious decision to disobey a Court order must be made with a certain level of voluntariness or volition in order to justify a criminal contempt conviction.  We conclude that the level of voluntariness or volition was not present here.

     Our ruling in this case should not be interpreted as meaning that individuals may show up late in response to a court order any time they conclude that, in their own view, something else is more important.  But here the evidence showed that the appellant legitimately felt compelled to attend to extremely pressing exigencies at the State Legislature, that those exigencies were unexpected and arose at the last moment, and that the appellant became aware of the conflict too late to make a formal request to reschedule.  Moreover, as soon as the appellant became aware that he might be late he had that information conveyed to the Court, and as soon as he knew he would certainly be late, he conveyed that information to the court.

     It is true that in In re Robert (II), 1 FSM Intrm. 18 (Pon. 1981), an attorney was held in contempt for appearing late to a hearing before the FSM Supreme Court even though at that time, he was investigating a matter required by another Court. However, the opinion in Robert was based, in part, on the fact that the attorney had failed to "advise this Court and opposing counsel" and to "seek a later hearing."  Id. at 20.  Based on that language, we believe that the attorney in Robert would not have been held in contempt had he taken the kind of steps to notify the Court that were taken by the appellant in this case.  As Robert is referenced here, we make note that the facts in Cheida are distinguishable from Robert in the sense that in Robert, the defendant was required to appear in Court as an attorney representing a party.  He was an officer of the Court.  The appropriate measure that Robert should have taken, which he failed to take, was to move the Court, either orally or in writing, for continuance or delay of proceeding.  FSM Civ. R. 7(b).  In his capacity, Robert, a lawyer, licensed to practice before this Court, could communicate with the Court or the Presiding Judge.  In this case, however, even though Cheida was a lawyer, he was not licensed to practice before the FSM Supreme Court.  Tr. at 39. Furthermore, Cheida would appear only as a witness before the Court.  Therefore, his capacity before the Court was merely a witness.  In this capacity, Cheida did not have the privileges of a lawyer as Robert.  Cheida could not move the Court, for a witness has no standing to make a motion to the Court.  Granted that Cheida could have made a request to the Court, in our opinion, his request would ordinarily be directed to the officers or staff of the Court for referral to the Presiding Judge.  In this case, Cheida twice communicated or at least caused two contacts with the Court. Indeed the trial court recognized this.  Tr. at 58 (lines 19-20).  What was the purpose of Cheida's attempts to communicate with the Court?

     To restate the unique circumstances here, under which Mr. Cheida is relieved of liability for criminal contempt, we note the following circumstances, of which the lack of any one could have resulted in a different conclusion.

     (1)  Mr. Cheida appeared before the Court as a witness, and not as an attorney.

     (2)  Mr. Cheida was presented with a legitimate, and confirmed, conflict between two branches of government.

     (3)  Mr. Cheida made multiple efforts to notify the Court, before the hearing and immediately near the start of the hearing.

     We look upon the question from the standpoint of the human-side of the Court. Here is an individual who has no access to the Judge.  Therefore he directed his telephone calls to the Court secretaries.  We believe it is humane to construe that those communications were to seek delay in the

[7 FSM Intrm. 187]

court's schedule.  Given the unexpected event and the tightness of time, we feel that the measure that Cheida took were the best that he could have taken, and to us reasonable, in the circumstances, so that his tardiness cannot be considered to be intentional disobedience of the Court's summons.  The appellant's case presents highly unusual circumstances.  Other individuals who disobey a court's summons should not expect to escape contempt penalties because of our decision here.

     For the reasons discussed above, the decision of the Trial Court is reversed. The contempt conviction is reversed and the Court will enter an order of judgment of acquittal.

*    *    *    *