Port v. Heard

• Decision Date: 01 July 1985
• Docket Number: No. 84-2523,84-2523
• Citation: 764 F.2d 423
• Parties: Bernard and Odette PORT, Petitioners-Appellants, v. Jack HEARD, Sheriff of Harris County, Texas, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 423

764 F.2d 423

Bernard and Odette PORT, Petitioners-Appellants, v. Jack HEARD, Sheriff of Harris County, Texas, Respondent-Appellee.

No. 84-2523.

United States Court of Appeals, Fifth Circuit.

July 1, 1985.

Randy Schaffer, Houston, Tex., for petitioners-appellants.

Brad Beers, Calvin A. Hartmann, Jim Lavine, William J. Delmore, III, Asst. Dist. Attys., Houston, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, WILLIAMS, and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Found to be in contempt of a Texas court for refusing to testify before a Texas grand jury, fined $500 each, and confined in the Harris County jail, Bernard and Odette Port petitioned the district court for release by habeas corpus. The Ports challenge the contempt judgments on two grounds: that their testimony was privileged by a parent-child testimonial privilege, and that it was privileged under the Fifth Amendment despite the state court's grant of use immunity. Initially finding that the Ports' appeal was not mooted by their release from custody, we affirm the denial of habeas relief.

I.

In June 1984, David I. Port, son of Bernard and step-son of Odette, was the primary suspect in the murder of Debra Schatz, a United States Postal Service employee. David's parents (the Ports) were summoned to appear before a state grand jury convened in Houston, Texas. The Ports appeared but invoked their privilege against self-incrimination and refused to testify. The state district court found them in contempt and they were incarcerated in the Harris County jail. A month later the Ports' petition for writ of habeas corpus was granted by the Texas Court of Criminal Appeals. Ex parte Port, 674 S.W.2d 772 (Tex.Crim.App.1984).

However, these events commenced to repeat themselves when the Ports were again served with subpoenas to appear before a different grand jury. The state district court granted the state prosecutor's motion to compel the Ports' testimony under a grant of use immunity. The Ports persisted in their silence and were again found to be in contempt. The district court fined the Ports $500 each and ordered the respondent, Jack Heard, the Sheriff of Harris County, to take the Ports into custody until they purged themselves of the contempt.

The Ports' second habeas corpus petition was denied without written opinion by the Texas Court of Criminal Appeals. The Ports then filed their petition with the United States District Court for the Southern District of Texas. Besides asserting their Fifth Amendment privilege against self-incrimination, the Ports urged the court to recognize their privilege, as parents, to refuse to testify against their son. The court denied the petition on September 7, 1984, and this appeal followed. 594 F.Supp. 1212 (D.C.Tex.).

Meanwhile, the Ports appeared before the grand jury on November 7 and 9. The district court determined that Bernard Port had purged himself of the contempt by virtue of his appearance and testimony. No similar determination was made for Odette Port. Bernard Port was released from confinement on the 9th. The grand jury's term expired on January 31, 1985, and it disbanded. Accordingly, the state district court ordered Odette Port's release from confinement on January 30. Payment of the fines has been suspended by personal bond pending appeal. On these subsequent developments, the respondent-appellee Heard (Harris County or the County) has premised his suggestion of mootness filed with this Court.

II.

At the outset we note that there is no question but that we have statutory jurisdiction under the "in custody" requirement of the habeas corpus statute, 28 U.S.C. Sec. 2254. ¹ Jurisdiction is established for this purpose as long as the petitioner is in the custody of the state when the petition for writ of habeas corpus is filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968) (overruling Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960)). Subsequent release of the petitioner does not oust the court of statutory jurisdiction. Id. The Ports, who were in the Harris County jail at the time their petition was filed, have met the statutory jurisdictional requirement.

However, regardless of the language of the habeas corpus statute, we have jurisdiction to hear only live cases or controversies as delineated in Art. III, Sec. 2 of the Constitution. When this is an issue, the doctrine of mootness supplies the analysis used to discover whether the Article III power may be brought to bear in a particular case. Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 556, 42 L.Ed.2d 532 (1975); Pierce v. Winograd, 757 F.2d 714, 717 (5th Cir.1985) (Higginbotham, J., dissenting). While both mootness and the "in custody" requirement concern the court's power to hear a dispute, they are analytically distinct issues because they derive from separate grants of authority. Carafas v. LaVallee, 391 U.S. at 237-38, 88 S.Ct. at 1559-60; Escobedo v. Estelle, 655 F.2d 613, 615 n. 5 (5th Cir.1981). We turn now to the mootness issue.

It is generally held that the complete discharge of a purely remedial civil contempt order renders moot the contemnor's direct appeal therefrom. In re Hunt, 754 F.2d 1290, 1293 (5th Cir.1985); Thyssen Inc. v. S/S Chuen On, 693 F.2d 1171, 1173 n. 3 (5th Cir.1982). Whether a contempt order should be labeled "civil" or "criminal" depends upon "the apparent purpose of the trial court in issuing the contempt judgment." In re Hunt, 754 F.2d at 1293. If the purpose is punitive or "designed to vindicate the authority of the court," the contempt is labeled criminal. Id. If the contempt judgment is meant to secure compliance with some order of the court or to remedy some harm resulting from noncompliance, the contempt is labeled civil. Id. (citing Thyssen Inc., 693 F.2d at 1173-74; Smith v. Sullivan, 611 F.2d 1050, 1053 (5th Cir.1980)). However, a contempt order is considered civil only when the intention behind it is wholly coercive or remedial; when it is partly coercive and partly punitive, "the criminal feature of the order is dominant and fixes its character for purposes of review." Nye v. United States, 313 U.S. 33, 42-43, 61 S.Ct. 810, 812-813, 85 L.Ed. 1172 (1941) (quoting Union Tool Co. v. Wilson, 259 U.S. 107, 110, 42 S.Ct. 427, 428, 66 L.Ed. 848 (1922)); see In re Stewart, 571 F.2d 958, 964 n. 4 (5th Cir.1978).

The contempt order here was based on Tex.Code Crim.Proc.Ann. art. 20.15 (Vernon 1977). ² While the language of the statute indicates that its primary purpose is to compel testimony, the fine levied here was not contingent on compliance with the court's demand. In our opinion such a fine, payable regardless of purgation of the contempt, could not be classified as other than punitive. Compare Cheff v. Schnackenberg, 384 U.S. 373, 377, 86 S.Ct. 1523 1524, 16 L.Ed.2d 629 (1966) (six month incarceration, not contingent on compliance, was criminal in nature) with Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (prison sentence, imposed for two years or until contemnors complied with order to testify before grand jury, was civil in nature) and In re Hunt, 754 F.2d at 1293 (fine, imposed upon noncompliance after a five-day grace period, was civil in nature). The imposition of the fines, purely punitive in nature, converted the contempt judgments here into criminal judgments, at least for our purposes.

It is clear enough that release of the Ports from confinement would have mooted their petitions had confinement been the only sanction imposed, the contempt being, in that case, purely civil in nature. See In re Campbell, 628 F.2d 1260, 1261 (9th Cir.1980) (restatement of principle that purgation moots challenge of civil contempt judgment), and cases cited therein. Conversely, there are numerous cases holding that a criminal contempt judgment is not mooted by the contemnor's release from confinement. See, e.g., Ridgway v. Baker, 720 F.2d 1409, 1411-12 n. 2 (5th Cir.1983) (contemnor ordered to pay arrearages in child support; collateral consequences present); United States v. Camil, 497 F.2d 225, 227-28 (5th Cir.1974) (two hour confinement; capable of repetition but evasive of review; collateral consequences); Wolfe v. Coleman, 681 F.2d 1302, 1305-06 (11th Cir.1982) (forty-five day sentence; collateral consequences). But see, e.g., Broughton v. North Carolina, 717 F.2d 147, 149 (4th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1917, 80 L.Ed.2d 464 (1984) (thirty day sentence for criminal contempt; habeas challenge mooted by release because no collateral consequences present). However, the holding in Broughton, and the use of the collateral consequences doctrine in all these cases, makes clear that the mootness of contempt judgments turns, not on the formalistic enterprise of labeling the contempt judgment, but on the presence vel non of a live controversy. Thus, had confinement been the only sanction imposed on the Ports, the controversy would have ended when they purged themselves of the contempt or, for other reasons, were released from custody. However, since the court also imposed a fine, contingent neither on compliance nor on any other event within the Ports' control, we must now determine whether the fine alone preserves their habeas petition from "ending 'ignominiously in the limbo of mootness.' " Sibron v. New York, 392 U.S. 40, 55, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968) (quoting Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct. 909, 911, 4 L.Ed.2d 963 (1960) (dissenting opinion)).

The fine was a direct consequence of the judgment challenged. Thus, we are faced with a novel issue: whether a fine alone can preserve a habeas petition from mootness once jurisdiction has properly attached in terms of the "in custody" requirement. Cf. Spring v. Caldwell, 692 F.2d 994, 996-98 (5th Cir.1982) (...