Cork v. State

97 So. 3d 1211
CourtMississippi Supreme Court
DecidedSeptember 20, 2012
DocketNos. 2010-KM-01393-SCT, 2010-KM-01674-SCT, 2010-KM-01410-SCT, 2010-KM-01466-SCT
StatusPublished
Cited by12 cases

This text of 97 So. 3d 1211 (Cork v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cork v. State, 97 So. 3d 1211 (Mich. 2012).

Opinion

RANDOLPH, Justice,

for the Court:

¶ 1. Appellants appeal direct criminal contempt orders for failing to serve or improperly serving process on defendants in paternity and child-support proceedings and for notarizing proof-of-service affidavits outside the presence of the affiants.1 The chancellor initially found Appellants in civil contempt and ordered a sentencing hearing. However, after conducting that hearing, he proceeded to hold all in direct criminal contempt. Appellants submit, and the State concedes, that the alleged conduct was not direct criminal contempt, but constructive criminal contempt. As the conduct was not civil contempt or direct criminal contempt, the chancellor should have recused himself from the proceedings. The Appellants were entitled to the due-process safeguards required for constructive criminal contempt proceedings. Accordingly, we reverse the contempt judgments and remand the cases to the Jackson County Chancery Court for entry of an order of recusal, and otherwise order proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Mississippi Department of Human Services (“DHS”) retained the law firm of Young Williams, P.C., for a large number of paternity and child-support cases. The law firm contracted process-service companies to serve defendants in the DHS cases. Individual process servers were instructed [1213]*1213to serve process on a defendant, complete a proof-of-service affidavit, and send it to the owners of the process-service companies. Upon receipt of the affidavits, the owners, who were notaries public, would notarize them outside the presence of the individual process servers.

¶ 3. In four cases, the DHS defendants testified that they had not been served personally. The chancellor then issued show-cause orders for a hearing and issued subpoenas instanter, requiring the process servers (Lott, Corr, and Moon) to appear and demonstrate why they should not be held in contempt for failing to serve process as set forth in their proof-of-service affidavits and for signing the affidavits outside the notary’s presence. The chancellor also issued show-cause orders and subpoenas instanter, requiring the owners of the process-service companies (Smith and Wells) to appear and show cause why they should not be held in contempt for notarizing proof-of-service affidavits without administering oaths and witnessing the process servers signing the affidávits. At the show-cause hearings for Lott, Corr, Smith, and Wells, Lott and Corr testified that they had served process as set forth in their affidavits. No one disputed that the process servers had signed the proof-of-service affidavits outside the notary’s presence and the notaries later had signed and sealed them outside the process servers’ presence. At the conclusion of that hearing, the chancellor held Lott, Corr, Smith, and Wells in civil contempt.2 Thereafter, he conducted a combined “sentencing hearing,” and then found Lott, Corr, Moon, Smith, and Wells in direct criminal contempt and sentenced each of them to thirty days in'jail and a $100 fine.

ISSUES

¶ 4. Appellants raised numerous issues. Our holding requires us to address only the following two:

1. Whether the chancellor’s judgments holding Appellants in direct criminal contempt should be reversed, because the chancellor failed to recuse himself where he initiated, prosecuted, and adjudicated the criminal contempt proceedings.
2. Whether the judgments holding Appellants in direct criminal contempt should be reversed, because the alleged contemptuous conduct occurred outside the presence of the court, and Appellants were not given notice of the criminal nature of the proceedings and served with summonses.

LAW AND ANALYSIS

I. Standard of Review

¶ 5. We apply a de novo standard when reviewing procedural issues raising questions of law. See Kumar v. Loper, 80 So.3d 808, 812 (Miss.2012) (“On questions of law, appellate courts use a de novo standard of review.”) (citation omitted).

II. The chancellor violated Appellants’ due-process rights by failing to recuse himself from the proceedings for constructive criminal contempt and failing to provide appellants notice of the criminal nature of the charges.

¶ 6. The State concedes that these cases involved neither civil contempt nor [1214]*1214direct criminal contempt, but that, instead, the proceedings were for constructive criminal contempt. Thus, Appellants were entitled to due-process protections. Accordingly, the chancellor was required to recuse himself from the proceedings and to issue summonses giving Appellants notice of the criminal contempt charges against them. See In re Smith, 926 So.2d 878, 888 (Miss.2006) (“The citing judge must recuse himself from conducting the [constructive] contempt proceedings involving the charges.”) (emphasis added) (citation omitted); Premeaux v. Smith, 569 So.2d 681, 684 (Miss.1990) (“defendant must be afforded minimum due process rights” and “[d]ue process includes notice to the alleged contemnor that she was being considered for criminal contempt.”) (citation omitted).

¶ 7. Appellants’ argument, the State’s concession, and the record convince us that the proceedings were for criminal contempt, not civil contempt. This Court has provided that:

[i]n classifying a finding of contempt as civil or criminal, this Court focuses on the -purpose for which the power was exercised. On appeal, the trial court’s classification is not conclusive. Thus, the determination should focus on the character of the sanction itself and not the intent of the court imposing the sanction.

Cooper Tire & Rubber Co. v. McGill, 890 So.2d 859, 867-68 (Miss.2004) (emphasis in original) (citations omitted). “The purpose of civil contempt is to compel compliance with the court’s orders, admonitions, and instructions, while the purpose of criminal contempt is to punish.” Graves v. State, 66 So.3d 148, 151 (Miss.2011) (citations omitted). The chancellor did not hold Appellants in contempt to compel compliance with an order, admonition, or instruction, but rather as punishment for alleged past

offenses — failure to serve process personally and their signing and notarizing of proof-of-service affidavits without the notary being physically present to witness the signatures.

¶ 8. The proceedings were for constructive (indirect) criminal contempt, “that is, for acts that — in whole or in part — occurred outside the presence of the judge[,]” not for direct criminal contempt, and, therefore, Appellants were entitled to due-process protections. Graves, 66 So.3d at 153. “A direct criminal contempt is one which takes place in the very presence of the judge making all the elements of the offense personal knowledge.” Varvaris v. State, 512 So.2d 886, 887-88 (Miss.1987) (emphasis added) (citation omitted). This Court has provided that:

[d]irect criminal contempt involves words spoken or actions committed in the presence, of the court that are calculated to embarrass or prevent the orderly administration of justice. Punishment for direct contempt may be meted out instantly by the judge in whose presence the offensive conduct was committed

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Bluebook (online)
97 So. 3d 1211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cork-v-state-miss-2012.