In re Contempt of Dudzinski

• Decision Date: 17 June 2003
• Docket Number: Docket No. 234148.
• Citation: 667 N.W.2d 68,257 Mich. App. 96
• Parties: In re CONTEMPT of Henry Joseph DUDZINSKI. Estate of Lamar Grable, Plaintiff, v. Eugene Brown, Defendant. Henry Joseph Dudzinski, Appellant, v. Third Circuit Court Judge, Appellee.
• Court: Court of Appeal of Michigan — District of US

667 N.W.2d 68

257 Mich. App. 96

In re CONTEMPT of Henry Joseph DUDZINSKI.

Estate of Lamar Grable, Plaintiff, v. Eugene Brown, Defendant.

Henry Joseph Dudzinski, Appellant, v. Third Circuit Court Judge, Appellee.

Docket No. 234148.

Court of Appeals of Michigan.

Submitted January 15, 2003, at Detroit.

Decided June 17, 2003, at 9:00 a.m.

Released for Publication August 11, 2003.

Tamara A. French, Detroit, for Henry J. Dudzinski.

Before ZAHRA, P.J., and MURRAY and FORT HOOD, JJ.

ZAHRA, J.

Appellant, Henry Joseph Dudzinski, appeals as of right from the trial court's order finding him in contempt of court and sentencing him to twenty-nine days in jail. Although we conclude the trial court erred and infringed on appellant's First Amendment right to free speech, we affirm the contempt order.

I. Factual and Procedural History

On May 30, 2000, appellant sat in the courtroom as a spectator during pretrial settlement discussions in Grable v. Brown.¹ Appellant and his wife were wearing shirts² bearing the following statement: "Kourts Kops Krooks."³ The trial judge told appellant and his wife that the shirts were not permitted in his courtroom and told them to leave the courtroom immediately. The trial judge told appellant and his wife that they could return to the courtroom after they had taken their shirts off. Appellant left the courtroom and returned after he had removed his shirt. The trial judge explained to appellant that his shirt was offensive, "taint[ed] the fair administration of justice," and deprived the parties of a fair trial. The trial judge then warned appellant that he could not wear the shirt in his courtroom in the future.

On April 12, 2001, appellant again wore the "Kourts Kops Krooks" shirt when he appeared as a spectator for a motion hearing in Estate of Grable. Before arguments began, the trial judge stated on the record that certain spectators were wearing inappropriate shirts and that they were disruptive of the proceedings. Defense counsel moved for the trial court to order appellant and the two other people wearing the shirts to remove their shirts or leave the courtroom. The trial judge found that the shirts affected the fair administration of justice and granted defendant's motion. When the trial judge ordered appellant and the two other spectators to take off their shirts or leave the courtroom, appellant refused, stating that he was invoking his First Amendment rights. The other two spectators wearing the shirts complied with the court's order. The trial judge gave appellant one more opportunity to comply with the order, but appellant again refused. The trial court found appellant in direct criminal contempt and sentenced him to twenty-nine days in jail. The trial court denied appellant's emergency motion to vacate the contempt order because it determined that appellant's conduct amounted to a protest that affected the fair administration of justice. Appellant fully served his twenty-nine day jail term.⁴

II. Standard of Review

We review for an abuse of discretion a trial court's decision to hold a party or individual in contempt. In re Contempt of Auto Club Ins. Ass'n, 243 Mich.App. 697, 714, 624 N.W.2d 443 (2000). However, to the extent that our review requires us to examine questions of law, such as constitutional issues, our review is de novo. Id.; Thomas v. Deputy Warden, State Prison of Southern Michigan, 249 Mich.App. 718, 724, 644 N.W.2d 59 (2002).

III. Appellant's First Amendment Rights

Appellant argues that the trial court violated his First Amendment right to freedom of expression by finding him guilty of contempt of court for wearing his "Kourts Kops Krooks" shirt in the courtroom. The First Amendment of the United States Constitution provides, "Congress shall make no law ... abridging the freedom of speech...." U.S. Const., Am. I. The analogous provision in the Michigan Constitution provides that "[e]very person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press." Const. 1963, art. 1, § 5. The rights of free speech under the Michigan and federal constitutions are coterminous. Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 202, 378 N.W.2d 337 (1985). Therefore, federal authority construing the First Amendment may be considered in interpreting Michigan's guarantee of free speech. Michigan Up & Out of Poverty Now Coalition v. Michigan, 210 Mich.App. 162, 168-169, 533 N.W.2d 339 (1995).

The United States Supreme Court has explained that "the right of free speech is not absolute at all times and under all circumstances," and that certain well-defined and narrowly limited classes of speech are preventable and punishable. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Every citizen lawfully present in a public place has the right to engage in expressive activity and such activity may generally not be restricted on the basis of its content, but may be restricted if the manner of expression is basically incompatible with the normal activity of the particular place at the particular time. Grayned v. City of Rockford 408 U.S. 104, 115-116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Speech or expression that is restricted because of the content of the message it conveys is subject to the most exacting scrutiny. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). In order to restrict speech on the basis of its content, the state must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Widmar v. Vincent, 454 U.S. 263, 269-270, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981).

The state has a compelling interest in protecting a criminal defendant's right to a fair trial, which is guaranteed by the Sixth Amendment of the United States Constitution. Where fair trial rights are at a significant risk, the First Amendment rights of trial spectators must be curtailed. Norris v. Risley, 918 F.2d 828, 832 (C.A.9, 1990). However, the content of speech in a courtroom may only be restricted if it constitutes an imminent threat to the administration of justice. Eaton v. Tulsa, 415 U.S. 697, 698, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974).

The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.... [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate. [Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947).]

"Criticism of the courts within limits should not be discouraged and it is a proper exercise of the rights of free speech and press. Such criticism should not subject the critic to contempt proceedings unless it tends to impede or disturb the administration of justice." In re Gilliland, 284 Mich. 604, 610-611, 280 N.W. 63 (1938). The United States Supreme Court explained that reviewing courts must use a balancing test when determining whether speech constitutes an imminent threat to the administration of justice:

Whether the threat to the impartial and orderly administration of justice must be a clear and present or a grave and immediate danger, a real and substantial threat, one which is close and direct or one which disturbs the court's sense of fairness depends upon a choice of words. Under any one of the phrases, reviewing courts are brought in cases of this type to appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes. [Pennekamp v. Florida, 328 U.S. 331, 336, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946).⁵]

If the speech posed a serious and imminent threat to a fair trial, the First Amendment rights must bow to the constitutional right to a fair trial. Norris, supra at 832.

Appellant argues that the trial court erred in ordering him to take off his shirt or leave the courtroom because the statement on his shirt was protected speech under the First Amendment. We agree that the trial court's order was erroneous under the circumstances of this case. The trial court relied on In re Contempt of Warriner, 113 Mich.App. 549, 317 N.W.2d 681 (1982), remanded 417 Mich. 1100.26, 338 N.W.2d 888 (1983), to support its conclusion that appellant's behavior was not constitutionally protected because it affected the fair administration of justice. However, Warriner does not support the trial court's conclusion that the statement on appellant's shirt was not constitutionally protected speech. In Warriner, supra at 550, 317 N.W.2d 681, the defendant was an observer in a courtroom during a hearing to set bond for his friend. As the defendant's friend was being led out of the courtroom after the amount of bond was determined, the defendant raised his fist in the air and began shouting in full view of the judge. Id. at 550-551, 317 N.W.2d 681. The trial court found the defendant to be in contempt of court and sentenced him to thirty days in a correctional facility. Id. at 551, 317 N.W.2d 681.⁶ This Court determined that the defendant's conduct did not amount to constitutionally protected free speech because "[d]isruptive, contemptuous behavior in a courtroom is not protected by the constitution." Id. at 555, 317 N.W.2d 681, citing Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965). In the present case, although appellant was a spectator in the courtroom, there is no indication that he, unlike the defendant in Warriner, made any verbal outbursts or aggressive movements in the courtroom. Inste...