Doe v. Maywood Housing Authority, 95-1288

• Decision Date: 07 December 1995
• Docket Number: No. 95-1288,95-1288
• Citation: 71 F.3d 1294
• Parties: Jane DOE and Mary Roe, Plaintiffs-Appellees, v. MAYWOOD HOUSING AUTHORITY and Ricardo Marshall, Defendants. Appeal of Robert L. SCOTT.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1294

71 F.3d 1294

33 Fed.R.Serv.3d 1006

Jane DOE and Mary Roe, Plaintiffs-Appellees, v. MAYWOOD HOUSING AUTHORITY and Ricardo Marshall, Defendants.

Appeal of Robert L. SCOTT.

No. 95-1288.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1995.

Decided Dec. 7, 1995.

Sheldon T. Zenner, Nicole N. Auerbach (argued), Maureen D. Pearson, Katten, Muchin & Zavis, Chicago, IL, Helen Cropper, Amy F. Peterson, Cook County Legal Assistance Foundation, Oak Park, IL, for Jane Doe, Mary Roe.

Stanley L. Hill, Andre M. Grant, Hill & Associates, Chicago, IL, for Maywood Housing Authority.

Judith A. Scully, Chicago, IL, for Ricardo Marshall.

Robert L. Scott, Chicago, IL, pro se.

Before POSNER, Chief Judge, and CUDAHY and MANION, Circuit Judges.

MANION, Circuit Judge.

Attorney Robert L. Scott appeals two orders from the district court, one which found him in criminal contempt for violating a protective order requiring that he and his clients not use real names to identify the plaintiffs in this case, and the second which sanctioned him under Fed.R.Civ.P. 11 for filing a frivolous counterclaim. Because the district court's orders were well-founded and Scott was granted all necessary procedural protections, we affirm.

I. Background

In May 1993 plaintiffs Jane Doe and Mary Roe filed a complaint against defendants Maywood Housing Authority ("Maywood") and Ricardo Marshall alleging violations of the federal Fair Housing Act, 42 U.S.C. Sec. 3601 et seq. (Title VIII), and of their constitutional rights, for which they sought redress under 42 U.S.C. Sec. 1983. The plaintiffs charged that Marshall, an official with Maywood, attempted to receive sexual favors in exchange for advantages in housing opportunities. The plaintiffs also alleged that Maywood knew of Marshall's history of sexual harassment but allowed him to continue to work there. Attorney Robert L. Scott ("Scott"), the actual appellant in this case, represented Maywood and Marshall until March 29, 1994, when he withdrew as counsel. The underlying case is still pending in the district court. ¹

Because of the sensitive subject matter of the plaintiffs' suit, on June 30, 1993, the district court granted the motion of Doe and Roe to proceed using pseudonyms. On August 31, 1993, the district court entered a protective order which prevented Maywood and Marshall from using Doe's and Roe's real names during this litigation. But on November 16, 1993, on behalf of Maywood and Marshall, Scott filed an answer and counterclaim (a document erroneously entitled "Complaint") in which Scott used plaintiffs' pseudonyms in the caption, but repeatedly referred to the plaintiffs by their true names in the body of the document. The counterclaim sought damages from Doe and Roe for filing their complaint, and sounded in the nature of a malicious prosecution cause of action.

The district court sealed the answer and counterclaim because it disclosed the identities of Doe and Roe in violation of the protective order. Doe and Roe moved to dismiss the counterclaim and filed a motion for an order to show cause why Scott should not be held in contempt of court for revealing their identities. In his response to the motion for an order to show cause, Scott again referred to the plaintiffs by their true names.

On September 21, 1994, the district court, in a well-reasoned memorandum opinion and order, considered the parameters of its protective order and whether Scott's actions violated that order. When it found they had, it considered whether these violations could constitute civil or criminal contempt and whether Scott was entitled to a jury trial. The district court concluded that Scott's violations of the protective order could constitute criminal contempt, although they were not a candidate for summary adjudication under Fed.R.Crim.P. 42(a), and that a jury trial was not necessary because the sanctions the court was considering did not exceed six months' imprisonment or a $10,000 fine. Accordingly, the district court ordered Scott to show cause why he should not be held in criminal contempt for revealing the identities of Doe and Roe in violation of the protective order. The district court also dismissed the counterclaim with prejudice, notifying Scott that it considered the filing and signing of the counterclaim a violation of Fed.R.Civ.P. 11. The court set a hearing date for the contempt citation and a briefing schedule on the Rule 11 violation. ²

On October 21, 1994, the district court granted Scott an extension of time to file a memorandum on the Rule 11 violation. At a status hearing on October 27, 1994, the district court scheduled a hearing on its order to show cause. On November 15, 1994, the district court granted Scott leave to file a substitute memorandum in place of an earlier-filed brief. On December 5, 1994, the evidentiary hearing was rescheduled at Scott's request so that he could retain an attorney, which he never did. That evidentiary hearing took place on December 20, 1994. Scott represented himself, testified, offered arguments and exhibits, and presented the testimony of a Maywood board member.

On December 30, 1994, the district court entered the two orders that are the subject of this appeal. The district court found Scott to be in criminal contempt for violation of the August 30, 1993 protective order and assessed a fine of $2,000. In a separate order it found Scott had violated Rule 11 by filing the counterclaim, and ordered him to pay the attorneys' fees for Doe and Roe in connection with their motion to dismiss the counterclaim. Those fees totaled $2,565.00. Although Scott appeals the contempt and Rule 11 orders, Maywood and Marshall do not appeal the order dismissing the counterclaim.

II. Discussion

A. Criminal Contempt

The fundamental distinction between criminal and civil contempts is the type of process due for their imposition. International Union, UMWA v. Bagwell, --- U.S. ----, ---- - ----, 114 S.Ct. 2552, 2561-63, 129 L.Ed.2d 642 (1994). A contempt sanction is considered civil "if it is remedial and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court." Id. at ----, 114 S.Ct. at 2557. Here Scott appeared to ignore the authority of the district court and his sanction is for criminal contempt.

Federal Rule of Criminal Procedure 42(b) governs the procedures to be used in imposing the criminal contempt sanctions authorized by 18 U.S.C. Sec. 401(3) and issued by the district court in this case. "Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 1429-30, 99 L.Ed.2d 721 (1988). Therefore, we must ensure that Scott received the necessary protections mandated by Rule 42(b), which include reasonable notice of the charge and an opportunity to be heard in defense before punishment is imposed. Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972). Further, Scott is entitled to have the contempt proved beyond a reasonable doubt. Bagwell, --- U.S. at ----, 114 S.Ct. at 2557 (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911)). In our review of the sufficiency of the evidence in support of a finding of criminal contempt, we must determine whether any reasonable trier of fact could have been convinced of guilt beyond a reasonable doubt. United States v. Maynard, 933 F.2d 918, 920 (11th Cir.1991) (citations omitted). The conviction will be sustained if there is substantial evidence to support it. Id. Further, in evaluating the district court's reasoning, we defer to its determination of the witness' credibility at the evidentiary hearing. See, e.g., United States v. Messino, 55 F.3d 1241, 1252 (7th Cir.1995) (district judge in best position to assess credibility of defendant because judge is intimately familiar with record and has opportunity to observe defendant's demeanor at hearing).

The essential elements of a finding of criminal contempt under 18 U.S.C. Sec. 401(3) are a lawful and reasonably specific order of the court and a willful violation of that order. United States v. KS & W Offshore Eng'r, Inc., 932 F.2d 906, 909 (11th Cir.1991) (citing United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)). Although Sec. 401(3) does not expressly contain an intent requirement, this court has held that willfulness is an element of criminal contempt and must be proved beyond a reasonable doubt. United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974). "Willfulness" is defined as a "volitional act done by one who knows or should reasonably be aware that his conduct is wrongful," and it may be inferred from "the facts and circumstances in proof." Id.

We conclude, first, that the protective order the district judge issued was a lawful and reasonably specific (as well as not uncommon) mechanism to protect Doe and Roe from humiliation and embarrassment. In the underlying suit Doe and Roe charged that Marshall attempted to coerce sexual favors for improvements in their housing conditions, and that Maywood was negligent in its supervision of Marshall's conduct. Considering the nature of these allegations, the district court properly ordered the use of pseudonyms by Doe and Roe. Our review of the relevant part of the protective order indicates that it was properly tailored and not unduly broad or burdensome.

We next consider Scott's violation of the protective order. Scott admitted he violated the order, but said he did not do so "willfully." The district court held an evidentiary hearing, heard testimony from Scott and a Maywood board member, and reviewed written submissions by the parties....