The Slightest Personal Impulse To Reprisal
Admit it. When someone calls you a “fool” or perhaps something worse, you want to respond. And not politely. You might lock ‘em up if you could…
This summer, incensed by a ruling in a child-custody case involving his granddaughter, 69-year-old Don Bandelman followed the judge into a public courthouse restroom and berated him as "a fool," court records show.
District Judge Jack Robison, Bandelman said, angrily told him to leave.
Then Robison did something more problematic, raising questions about whether he abused his power as a judge. Robison directed bailiffs to arrest Bandelman and then sentenced the man to 30 days in jail for contempt of court.
Chuck Lindell’s Austin American Statesman article continues:
Bandelman's jailing was unusual because a finding of direct contempt is generally reserved for acts that:
- Take place during court proceedings, usually in the courtroom or jury room.
- Are witnessed by the judge.
- Disrupt court, impede the administration of justice or challenge the judge's authority.
“During court proceedings”… which is to say, not in the bathroom. The article makes reference to a US Supreme Court case from 84 years ago, and not being intimately familiar with it, I drug up Cooke v. U.S., 267 U.S. 517 (1925). After an adverse ruling in one case, but while he still had other cases pending, a lawyer wrote a letter to the judge expressing that while he had previously hoped that the judge could be fair, “My hopes in this respect have been rudely shattered.”
Later in the courtroom, the judge sentenced him to thirty days (sound familiar?) without formal notice of charges or any real opportunity to respond. The Supremes, led by former president Taft, overturned the sentence and remanded the case to be heard by a new judge, saying, among other things:
The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice, and in maintaining the authority and dignity of the court, is most important and indispensable.
But its exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge.
The judge must banish the slightest personal impulse to reprisal, but he should not bend backward, and injure the authority of the court by too great leniency.
The point of the case seems to be that there’s some sort of due process difference between contemptuous acts witnessed by the judge in court versus out of court – which is a silly distinction at best, as far as I can make it out. However the last portion of the Court’s opinion addresses a valid point. Judges are human, they can get their feelings hurt like anyone else. Should we allow them this immense power, to jail citizens on the spot when they feel criticized?
And doesn’t a story like the one in today’s newspaper (judge pissed off at litigant for calling him a fool, imposes 30 days in jail) actually reduce respect for the judiciary, and for court proceedings in general? If you sow the seeds of disrespect, surely you will eventually reap contempt.
