Tyler v. Heywood
| Decision Date | 03 March 2000 |
| Docket Number | No. S-97-1301.,S-97-1301. |
| Citation | 607 N.W.2d 186,258 Neb. 901 |
| Parties | Billy Roy TYLER, appellant v. Calvin HEYWOOD et al., appellees. |
| Court | Nebraska Supreme Court |
Billy Roy Tyler, pro se.
Don Stenberg, Attorney General, and Linda L. Willard, Lincoln, for appellee.
On September 17, 1997, Billy Roy Tyler (appellant) filed an action in the district court for Lancaster County, naming as defendants various State officials (the defendants). Appellant was granted leave to proceed in forma pauperis. His handwritten claim asserts the following:
NeB Rev Stats [sic] 83-4114 says that 15 out of 45 days ... respite is mandated but under practices Policies of Respondents (acting in concert and under color of state law) relator Has been Held continually in solitary confinement for 400 days or so. As complained of in 557-119 Relator Has Received ALmost 1,000 days disciplinary segregation in the "Hole." Relator invokes the jurisdiction of this Court pursuant to NeB. Rev. Stats. §§ 25-101, 83-4,111, 83-4,114 et seq., Art. I §§ 1 thru 25 the 5th, 8th, 13th & 14th Amendments to [the] U.S. Constitution and Requests (1) a declaration that His 400 day confinement in Hole as is said violates relator's legal & constitutional rights (2) a injunction against further violations of 83-4,114 as well as a order immediately Removing Relator from Hole for said aggregate 15 days Respite as suBtracted from 400 days (3) $50,000,000 punitive and compensatory damages as well as whatever else the court deems just and meet in the Premises.
The defendants filed a motion to make more definite and certain, asserting that "the Petitioner's Petition [is] so vague and ambiguous that they cannot reasonably frame a responsive pleading." The district court conducted a telephonic hearing with the parties regarding this motion on November 25, 1997. The substance of this hearing was as follows:
On November 25, 1997, after the hearing had been concluded, the court made a minute entry stating that "[b]ased on plaintiff's contemptuous conduct during this hearing, this case is dismissed."
Appellant then appealed the dismissal of his case, asserting that the "Trial Court Erred in denying Relator Plenary Review and erred In dismissing Appellant's case upon demurrer." The Nebraska Court of Appeals found that the case had not been dismissed on a demurrer, but on the district court's own motion, as a sanction for appellant's direct act of contempt upon the court. Tyler v. Heywood, 8 Neb.App. 553, 598 N.W.2d 73 (1999). The Court of Appeals further determined that the district court lacked the authority to dismiss a case upon its own motion for contempt because Neb.Rev.Stat. § 25-601 (Reissue 1995) does not list contempt as one of the grounds available for dismissal upon the court's own motion. The Court of Appeals then reversed the order of dismissal and remanded the cause for further proceedings. The State petitioned for further review, which we granted.
In its petition for further review, the State asserts that the Court of Appeals erred in determining that the district court improperly dismissed appellant's suit as a sanction for his direct contempt.
An appellate court, reviewing a final judgment or order in a contempt proceeding, reviews for errors appearing on the record. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. A trial court's factual finding in a contempt proceeding will be upheld on appeal unless the finding is clearly erroneous. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997).
Appellate review of a district court's use of inherent power is for an abuse of discretion. Schindler v. Walker, 256 Neb. 767, 592 N.W.2d 912 (1999).
We first consider whether the district court correctly found that appellant's actions constituted contempt. It is a longstanding rule that insolent, insulting, or notorious language directed at the court constitutes grounds for a finding of contempt. In re Dunn, 85 Neb. 606, 124 N.W. 120 (1909). Appellant's language here obviously fits within that definition. We also note that this is not a case where appellant uttered an unreflective expletive in open court due to the pressures of the moment, or where appellant and the court were engaged in an argumentative colloquy being fed by both sides. See Connell v. State, 80 Neb. 296, 114 N.W. 294 (1907), overruled on other grounds, State, ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937). Instead, we have here an unprovoked stream of obscenities in open court, directed toward the court during a hearing, "calculated ... to lessen respect in the authority, dignity, and integrity of courts generally, and particularly the court toward which [the language] was directed." See McFarland v. State, 172 Neb. 251, 261, 109 N.W.2d 397, 404 (1961).
Appellant's conduct was an act of direct contempt. Direct contempt occurs in the presence of the court, so that the court has personal knowledge of the facts and has no need to inform itself of them by using witnesses or other evidence. In re Contempt of Potter, 207 Neb. 769, 301 N.W.2d 560 (1981). Direct contempt may be punished summarily. Id. Indirect contempt, in contrast, occurs outside the presence of the court and requires "some notice of the facts allegedly constituting the contempt and a hearing or opportunity to be heard." Id. at 773, 301 N.W.2d at 562.
In a concurring opinion in Tyler v. Heywood, 8 Neb.App. 553, 598 N.W.2d 73 (1999), a concern is raised about the sufficiency of the district court's order, citing Gonzalez v. State, 119 Neb. 13, 226 N.W. 801 (1929), and Tastee Inn, Inc. v. Beatrice Foods Co., 167 Neb. 264, 92 N.W.2d 664 (1958). However, unlike the present case, the records in Gonzalez, supra, and Tastee Inn, Inc., supra, did not adequately set out the allegedly contemptuous conduct. In this case, the bill of exceptions, as quoted above, adequately identifies the behavior occurring in the presence of the court upon which appellant was found in contempt.
After the court informed appellant that he was in contempt, appellant's use of obscenities continued. The court then appropriately ended the hearing, at which time appellant used still more obscenities. As we first noted in Ferson v. Armour & Co., 109 Neb. 648, 651, 192 N.W. 125, 127 (1923), We determine that the district court was not clearly erroneous in finding that appellant's language during the hearing constituted contempt. Klinginsmith v. Wichmann, 252 Neb. 889, 567 N.W.2d 172 (1997); In re Dunn, supra.
We next turn to the issue of whether the district court possessed the authority to dismiss appellant's case as a sanction for his contempt. It is a longstanding and well-established rule in this State that "[t]he power to punish for contempt is incident to every judicial tribune, derived from its very constitution, without any expressed statutory aid [and] inherent in all courts of record." Kregel v. Bartling, 23 Neb. 848, 852, 37 N.W. 668, 670 (1888). See, also, In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996); In re Contempt of Potter, 207 Neb. 769, 301 N.W.2d 560 (1981); Bahm v. Raikes, 200 Neb. 195, 263 N.W.2d 437 (1978); Paasch v. Brown, 199 Neb. 683, 260 N.W.2d 612 (1977); State ex rel. Beck v. Frontier Airlines, Inc., 174 Neb. 172, 116 N.W.2d 281 (1962); Butterfield v. State, 144 Neb. 388, 13 N.W.2d 572 (1944); In re Dunn, 85 Neb. 606, 124 N.W. 120 (1909); Nebraska Children's Home Society v. State, 57 Neb. 765, 78 N.W. 267 (1899). Accordingly, Neb.Rev.Stat. § 25-2121 (Reissue 1995), which grants courts the power to punish contempt by "fine and imprisonment," does not limit the court's inherent authority to impose sanctions in addition to what is listed in § 25-2121. In re Interest of Krystal P. et al., supra.
The Court of Appeals reasoned that the district court lacked authority under § 25-601 to dismiss ...
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