Wasserman v. State, 94-03113
| Decision Date | 12 April 1996 |
| Docket Number | No. 94-03113,94-03113 |
| Citation | 671 So.2d 846 |
| Parties | 21 Fla. L. Weekly D902 Phillip R. WASSERMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Pinellas County; B.J. Driver, Senior Judge.
Phillip R. Wasserman, Clearwater, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Appellee.
Phillip Wasserman appeals his conviction for indirect criminal contempt. We reverse because Mr. Wasserman's conduct, while ill-mannered and reprehensible, does not constitute indirect criminal contempt as a matter of law.
The facts underlying the contempt adjudication are as follows. Mr. Wasserman, a lawyer, failed to appear at a court hearing before Judge John Lenderman in response to a subpoena issued to compel production of a file in Mr. Wasserman's possession. Judge Lenderman instructed his judicial assistant, Cindy Decker, to prepare an order to show cause for Mr. Wasserman's failure to appear.
About an hour after the hearing, Mr. Wasserman called the judge's chambers and spoke to Ms. Decker, who informed him that the judge had directed that an order to show cause be issued. Mr. Wasserman became angry and asked to speak to Judge Lenderman. The judge was still in court and, when Ms. Decker sent him a message, he declined to speak to Mr. Wasserman ex parte. Ms. Decker testified that Mr. Wasserman began screaming at her, calling her a "little motherf-----" and calling the judge a "motherf------ son of a b----." Mr. Wasserman, on the other hand, contended that either he used no obscenities or Ms. Decker hung up the phone before he used any foul language.
According to Judge Lenderman, when he returned to his chambers from the courtroom, Ms. Decker was visibly upset. She told him that Mr. Wasserman had been very abusive and that she needed to go home. The judge returned to his courtroom and presided over hearings until 5 p.m. or later. At approximately 6 p.m. that evening, the judge called Ms. Decker at home and asked her what Mr. Wasserman had said to her. Subsequently, Judge Lenderman issued a second order to show cause which included the contempt issue now on appeal.
The contempt hearing was presided over by a judge other than Judge Lenderman. At the conclusion of the hearing, the trial court entered a judgment of indirect criminal contempt and sentenced Mr. Wasserman to serve 30 days in the county jail, the last 20 days to be suspended upon the condition that Mr. Wasserman attend and successfully complete a class on ethics as approved by the Florida Bar.
It is clear that the sole conduct which forms the basis of the contempt charge before us is Mr. Wasserman's utterance of vulgar comments made to a judicial assistant out of the presence of the trial judge. We must determine whether such utterances may be punished by indirect criminal contempt. In order to make this determination, we are called upon to examine the limitations imposed on the trial court's contempt power by the First Amendment to the United States Constitution. 1 However, before we begin we emphasize that this opinion does not address the power of direct criminal contempt because the power of a court to punish for in-court contempts stands on a different footing than contempts occurring out of the presence of the court. It has long been recognized that "courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates." Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242, 247 (1821).
The test to be applied to determine whether an out-of-court statement is contemptuous is whether it constitutes a clear and present danger to the orderly administration of justice. Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). The "clear and present danger" standard is defined in Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192 (1941), as "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." Its proper application is described in Craig v. Harney, 331 U.S. 367, 373-376, 67 S.Ct. 1249, 1253-1255, 91 L.Ed. 1546 (1947), wherein the Court explains that whether speech constitutes a clear and present danger is measured not by the content of the remark but by the impact on judicial action:
The history of the power to punish for contempt (see Nye v. United States, [313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941) ] supra; Bridges v. State of California, [314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192 (1941) ] supra) and the unequivocal command of the First Amendment serve as constant reminders that freedom of speech and of...
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