IN THE SUPREME COURT OF MISSISSIPPI
NO. 2020-CA-00581-SCT
JOHN I. DONALDSON, COUNTY PROSECUTOR FOR YAZOO COUNTY, MISSISSIPPI
v.
HONORABLE MARY B. COTTON, COUNTY COURT JUDGE/YOUTH COURT JUDGE OF YAZOO COUNTY
DATE OF JUDGMENT: 05/15/2020 TRIAL JUDGE: HON. MARY BARNETTE COTTON COURT FROM WHICH APPEALED: YAZOO COUNTY YOUTH COURT ATTORNEY FOR APPELLANT: BARRY STUART ZIRULNIK ATTORNEY FOR APPELLEE: MARY BARNETTE COTTON NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: VACATED AND REMANDED - 04/07/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
¶1. Judge Mary B. Cotton, the Yazoo County Youth Court Judge, ordered Attorney John
Donaldson,1 first verbally then by written order dated April 3, 2020, to prepare the court’s
orders for youth court matters. Donaldson refused to abide by Judge Cotton’s order of April
3, 2020. As a result, Judge Cotton determined that Donaldson was in contempt of court and
1 Donaldson serves as the county prosecutor for Yazoo County. See Miss. Code § 43- 21-117(2) (Rev. 2021) (“The county prosecuting attorney shall serve as the youth court prosecutor[.]”). she entered an order of contempt, fining Donaldson for his past and continuing refusal to
draft the youth court orders.
¶2. Donaldson now appeals the order of contempt. He argues that Judge Cotton lacked
authority to order him to prepare orders for youth court matters. He maintains that preparing
orders is the responsibility of the judicial staff and that he was under no legal obligation to
do so. Donaldson argues also that the order of contempt violated his due process rights.
¶3. This Court finds that a youth court judge has the inherent authority to order a county
prosecutor to prepare orders in youth court matters. We find also that Donaldson’s alleged
contempt is constructive criminal contempt and that his due process rights were violated.
Therefore, the Court vacates the order of contempt and remands the case for further
proceedings.
STATEMENT OF THE FACTS
¶4. Before taking the bench, Judge Cotton had served as the Yazoo County prosecutor.
Judge Cotton asserts in her brief that “[u]pon learning she was unopposed in the election to
the position of County Court/Youth Court Judge, Judge Cotton reached out to [Donaldson]
regarding the possibility of his accepting the position as County/Youth Court Prosecutor to
fulfill Judge Cotton’s unexpired term in that position.” She goes on to say that she explained
to Donaldson the responsibilities of the position, including “the fact that the County/Youth
Court Prosecutor in Yazoo County was responsible for drafting the Orders following certain
Youth Court hearings.” Donaldson agreed to accept the position, and he was appointed by
2 the county’s board of supervisors in January 2019. Judge Cotton began serving as the Yazoo
County youth court judge in January 2019.
¶5. Immediately after Donaldson was appointed, he received training in the use of the
youth court’s MYCIDS (Mississippi Youth Court Information Delivery System) computer
program regarding the preparation of court orders. Even though Donaldson participated in
MYCIDS training, Judge Cotton did not require him to prepare orders immediately and gave
him additional time to learn to use and familiarize himself with the MYCIDS system. Judge
Cotton reminded Donaldson several times during 2019 that preparing orders would be his
responsibility in the future.
¶6. On December 17, 2019, Judge Cotton verbally ordered Donaldson to begin preparing
the orders of the youth court starting the next month. Specifically Judge Cotton directed him
to prepare the orders for all delinquency cases beginning in January 2020 and then to prepare
the orders for all abuse and neglect cases beginning in March 2020.
¶7. On January 16, 2020, Donaldson responded by sending Judge Cotton a letter in which
he declined to follow the judge’s verbal order to prepare the orders for certain youth court
matters because he “simply do[es] not have time nor desire to do something that [he] do[es]
not believe that should be in [his] job description as Yazoo County’s Prosecuting Attorney.”
Donaldson argued that, based on statutory requirements and opinions of other prosecutors
and the attorney general’s office, his “duties end upon adjudication and disposition” and
“[t]hey do not include any clerical work beyond that point.” For support, Donaldson cited an
attorney general opinion to the effect that “paperwork necessary for taking a juvenile into
3 custody and disposition of a case should be done by youth court staff, hired by the judge and
paid by the county, out of the court budget, as provided for in Sec. 43-21-119.” Miss. Att’y
Gen. Op., No. 96-0829, 1996 WL 744342, Harkey, at *2 (Dec. 16, 1996). Donaldson
included copies of Mississippi Code Sections 43-21-119 and 43-21-123, opining that those
statutes “provide that you, as Youth Court Judge, or your designee, are responsible for
appointing sufficient staff, including clerical, hired by you and paid by the county out of
funds allocated in the court’s budget.”
¶8. In response to Donaldson’s letter, Judge Cotton requested an opinion from the
attorney general, asking whether a “Youth Court Prosecutor is responsible for preparing the
orders issued by the youth court in the prosecution of a juvenile delinquent.” Miss. Att’y
Gen. Op., No. 2020-00020, 2020 WL 755928, Cotton, at *1 (Jan. 31, 2020). The attorney
general issued its opinion on January 31, 2020. At first, the attorney general’s office had
declined to answer, saying that its opinions are not to be used “to advise one public officer
about another public officer’s duties and responsibilities.” Id. But the attorney general’s
office went on to address the question of “who is responsible for the preparation of the orders
of the Youth Court[?]” Id. Relying on the Harkey opinion, the attorney general’s office
concluded that “[a]ny paperwork for ‘taking a juvenile into custody and disposition of a case’
is the responsibility of the youth court staff which is hired by the judge and paid by the
county out of the court’s budget.” Cotton, 2020 WL 755928, at *2. The Cotton opinion also
included a footnote that said:
Though finding the Judge to be ultimately responsible for the issuance of his orders, this office further opined that, “the Circuit Judge may, in his discretion,
4 require a clerk, administrator, attorney, or other individual involved in the criminal court process to draft and present a court order for the judge’s signature, in order for the action to be properly recorded among the court’s minutes.[”]
Id. n.1 (quoting Miss. Att’y Gen. Op., No. 2001-0219, 2001 WL 523505, Johnson, at *1
(Apr. 27, 2001)).
¶9. On April 3, 2020, Judge Cotton entered an order mandating the immediate
responsibility of the Yazoo County Court prosecutor for preparation of all youth court orders
for all adjudication, disposition, permanency, and review hearings. After Judge Cotton had
entered the order, she emailed Donaldson a copy of it with a message that explained the order
and instructed him to begin preparing the orders immediately. Donaldson responded to the
email, stating:
Betsy, . . . I am not your employee. I was elected just like you were. I answer to the best of my knowledge to the Attorney General of this State. If you budget for and[sic] Youth Court Prosecutor I believe that he reports to you and you may set his duties. I am the County Prosecuting Attorney and can Prosecute any matter which I deem to be suitable for Prosecution. I believe that is the law. I believe that my duties are set by statute. . . . Also think about the fact that I have been doing this for more than 35 years.
¶10. No delinquency hearings were held by the youth court following the entry of the order
dated April 3, 2020, until April 22, 2020. Additional hearings were held on April 27 and 28,
2020. Because Donaldson had not prepared orders for these three hearings, Judge Cotton, on
May 4, 2020, emailed Donaldson to remind him to comply with her order of April 3, 2020,
and “with Youth Court time standards for having [o]rders entered following Youth Court
hearings.”
5 ¶11. The next day, May 5, 2020, Donaldson wrote a letter to Judge Cotton in which he
again refused to abide by her order. In his letter, Donaldson explained his decision:
The 1996 opinion, Harkey, . . . recited and concludes that “[a]ny paperwork necessary to commence a filing in the youth court would be the responsibility of the youth court prosecutor. However, any paperwork for taking a juvenile into custody and disposition of a case is the responsibility of the youth court staff, which is hired by the Judge and paid by the County out of the court’s budget. Therefore, drafting the orders of the court would be the responsibility of the court staff hired by the Judge.”
You are apparently relying solely on a foot note referring to a Circuit Judge instead of the statute which is clearly stated and referred in both the 1996, opinion and the 2020, opinion requested by you. Please be advised that I do not work for you. I am not a clerical employee of the Court paid by the Youth Court, nor do I have a budget for clerical or other staff. Further, although I do not want to poison what has previously been an amicable relationship with you. (In fact I supported your initial appointment as Judge by the County Board of Supervisors and your later Election) I do not intend to follow your directive which I believe to be contrary to statute. In other words, I am an elected official bound by statute and not the wishes of the Youth Court Judge. Youth Court is not Circuit Court or a Criminal Court and has different procedures and practices.
As I tried to point out to you earlier, you have several options as the Youth Court Judge. You may hire an additional clerical for your staff or hire a Youth Court Prosecutor and I will continue in my present role as County Prosecutor.
(Emphasis omitted.)
¶12. On May 13, 2020, “in an effort to resolve the matter without the necessity of a formal
finding of contempt,” Judge Cotton met with Donaldson to discuss their differences, but to
no avail. The next day, May 14, 2020, Judge Cotton signed an order holding Donaldson in
contempt “for his failure and refusal to abide by [the] Court’s April 3, 2020 Order requiring
him to prepare the Orders following any and all adjudications, dispositions, permanency and
6 review hearings.”2 The court imposed upon Donaldson “a fine of $150.00 (representing
$50.00 per day of hearings for which he failed to prepare the Orders) upon [Donaldson]
which shall be paid to the Clerk of this Court within ten (10) days of entry of this Order.”
Judge Cotton determined also that Donaldson’s “continued refusal to prepare the Orders from
this date forward will place him in continuing contempt of Court.” Therefore, “for each day
on which hearings are conducted for which [Donaldson] is required to prepare these Orders,
and he fails or refuses to do so within ten (10) days of said hearings, [Donaldson] will be
automatically fined an additional $50.00 for his continued contempt.”
¶13. On June 3, 2020, Donaldson filed his notice of appeal. On appeal, Donaldson asks
[w]hether an [o]rder by Youth Court Judge Cotton directing County Prosecutor Donaldson to prepare all Youth Court orders rendered without, and in fact contrary to statutory authority, as well as Attorney General Opinions thereby (1) constituting an invalid and void order wholly lacking as the prerequisite foundation upon which an Order of Contempt can thereafter issue for failing to comply and (2) precluding issuance of a constructive Contempt Order when Yazoo County Prosecutor Donaldson, as a public officer and in good faith, acted in accordance with the Attorney General Opinions and was thereby precluded from incurring civil or criminal liability.
Additionally, he argues that the order of contempt violated his due process rights as he was
not properly served and he was deprived of “his right to a fair and impartial hearing before
a separate presiding judge not occupying dual and conflicting roles of prosecutor and judge.”
2 Both parties and the docket say that the order of contempt was filed on May 15, 2020. The document itself reflects that it was filed with Mississippi Electronic Courts (MEC) on May 26, 2020.
7 STANDARD OF REVIEW
¶14. “[Q]uestions of law are reviewed de novo.” Miss. Dep’t of Revenue v. Hotel & Rest.
Supply, 192 So. 3d 942, 945 (Miss. 2016) (citing Equifax, Inc., v. Miss. Dep’t of Revenue,
125 So. 3d 36, 41 (Miss. 2013)).
¶15. This Court has held that when reviewing contempt cases:
If the contempt is civil, the proper standard utilized for review is the manifest error rule. If the contempt is criminal, then we will proceed ab initio and will determine on the record whether the person in contempt is guilty of contempt beyond a reasonable doubt. [P.K. v. Hinds Cnty. Youth Ct. (In re Interest of E.K.), 20 So. 3d 1216, 1221 (Miss. 2009).]
“However, it is not necessary to review the record if [a defendant] was guilty beyond a reasonable doubt [when a] case requires reversal on other procedural grounds.” [Purvis v. Purvis, 657 So. 2d 794, 797 (Miss. 1994).]
In re McDonald, 98 So. 3d 1040, 1042-43 (Miss. 2012) (second and third alterations in
original).
DISCUSSION
I. A youth court judge has the inherent authority to order a county prosecutor to prepare orders in youth court matters.
¶16. Donaldson contends that “Judge Cotton had no legal authority to order another elected
official outside the employ of the Youth Court to perform the duties that the Legislature
decreed were the responsibility of the Youth Court Judge and her salaried staff.” Donaldson
claims that “[r]equring another elected official to do work designated by the legislature to be
performed, budgeted and paid for by the Youth Court and its staff, is an Order that the Youth
has no power to make and accordingly not a lawful order.” It is Donaldson’s argument that
Mississippi Code Section 43-21-119 (Rev. 2021) and Mississippi Code Section 43-21-123
8 (Rev. 2021) and two attorney general opinions provide that preparing youth court orders is
the responsibility of the court staff hired by the youth court judge. Donaldson believes that
Judge Cotton should hire another youth court staff member under Sections 43-21-119 and
43-21-123 instead of requiring him to prepare the orders, which he describes as clerical work.
¶17. The operative question before the Court is whether a youth court judge has the
authority to order a county prosecutor to prepare orders for youth court matters in which that
official is the prosecuting attorney, not whether a youth court judge is required to hire
additional court staff under Section 43-21-119 and Section 43-21-123. This Court has
“recogniz[ed] and endors[ed] a trial judge’s duty to control the courtroom, using reasonable
measures to efficiently move matters along[.]” In re Blake, 912 So. 2d 907, 914 (Miss.
2005); see also Newell v. State, 308 So. 2d 71, 76 (Miss. 1975) (“The inherent power of this
Court to promulgate procedural rules emanates from the fundamental constitutional concept
of the separation of powers and the vesting of judicial powers in the courts.” (citing
Matthews v. State, 288 So. 2d 714 (Miss. 1974))); Aeroglide Corp. v. Whitehead, 433 So.
2d 952, 953 (Miss. 1983) (“[A]ll courts possess the inherent authority to control the
proceedings before them including the conduct of the participants.”). “A court’s power to
maintain control over the proceedings before it is not grounded in its punitive jurisdiction,
but in the necessary and inherent power to regulate its proceedings.” Spore v. State, 214 So.
3d 223, 227 (Miss. 2017) (internal quotation marks omitted) (quoting Knott v. State, 731 So.
2d 573, 576 (Miss. 1999)); see also United States v. Spellissy, 374 Fed. Appx. 898, 900 (11th
Cir. 2010) (“Courts have inherent powers derived from common law that assist in exercising
9 their enumerated judicial powers, such as managing their cases and courtrooms.” (citing
Byrne v. Nezhat, 261 F.3d 1075, 1132 n.110 (11th Cir. 2001), abrogated on other grounds
as recognized by Johnson v. 27th Ave. Caraf, Inc., 9 F.4th 1300 (11th Cir. 2021)).
Additionally, “[t]he phrase ‘judicial power’ in Section 144 of the Constitution includes the
power to make rules of practice and procedure, not inconsistent with the Constitution, for the
efficient disposition of judicial business.” Jones v. City of Ridgeland, 48 So. 3d 530, 536
(Miss. 2010) (emphasis added) (internal quotation marks omitted) (quoting S. Pac. Lumber
Co. v. Reynolds, 206 So. 2d 334, 335 (Miss. 1968)). Accordingly, we find that Judge Cotton
had the inherent power to order Donaldson to prepare youth court orders. Because of her
inherent power as a youth court judge, Judge Cotton could manage the youth court over
which she presided in the way that she deemed most efficient. That is what occurred here.
Judge Cotton ordered Donaldson to be responsible for “generating, reviewing, and modifying
all Orders following any and all adjudication, disposition, permanency and review hearings.”
She exercised her inherent discretionary powers as a judge to make the youth court operate
efficiently by requiring Donaldson, a lawyer and an officer of the court, to draft the orders
for those cases in which he was involved. Furthermore, drafting orders for judges is an
ordinary professional activity that lawyers routinely discharge in practice. See Hewes v.
Langston, 853 So. 2d 1237, 1275-76 (Miss. 2003) (“Lawyers customarily draw up proposed
orders prior to a judge’s ruling on a motion. This is done for efficiency’s sake, not for
10 improper motives.”3 (emphasis added)). This Court finds that Judge Cotton’s order of April
3, 2020, was valid and enforceable because she had the inherent power to enter it.
¶18. Because Judge Cotton had the inherent authority to direct Donaldson to prepare orders
for youth court matters, we find that Donaldson’s arguments are unpersuasive and without
merit.4
3 Numerous local rules address the function of a lawyer’s presenting to a judge proposed orders. See Loc. R. Cnty. Ct. of Lowndes Cnty. 6 (“With the exception of orders of dismissal, remand or continuance, all orders must be presented to the Court. . . . All orders presented to the Court must also bear the number of the case before the Court will sign same.”); Loc. R. Cnty. Ct. & Youth Ct. of DeSoto Cnty. 2(b) (“A proposed Order shall accompany the Court’s copy of any motion which may be heard ex parte or is granted by consent.”); Loc. R. 5th Ch. Ct. Dist. 18 (“Judgments and orders should be presented to the Chancellor unless prior arrangements otherwise have been made.”); Loc. R. 5th Ch. Ct. Dist. 19 (“All pleadings, judgments, and orders must show the name and Mississippi State Bar number of the individual attorney actually presenting it[.]”); Loc. R. 16th Ch. Ct. 9 (“Before announcing ready in an uncontested divorce, the attorney shall have with him a proposed Judgment for same. Before any testimony is offered, the attorney shall present the Chancellor or Master a worksheet and the proposed Judgment.”); Loc. R. 11th Ch. Ct. Dist. 7. Preparation and Submission of Judgments (“(a) . . . all judgments must be presented to the assigned Chancellor within ten (10) calendar days after being directed to draw the same.”); Loc. R. 8th Ch. Ct. Dist. 4(b) (“Proposed judgments prepared by attorneys shall conclude with the . . . .” (emphasis added)); Loc. R. 1st Cir. Ct. Dist. 4(b) (“A proposed Order shall accompany the court’s copy of any motion which may be heard ex parte or is granted by consent.”); Loc. R. for 4th Cir. Ct. Dist. 4(b) (“A proposed Order shall accompany the court’s copy of all motions not agreed to[.]”); Loc. R. for 15th Cir. Ct. Dist. 6 (“Whenever an announcement of final disposition is made to the Court, a final order must be submitted to the Court on or before the last day of the term, or said case will be dismissed.”); Loc. R. for 18th Cir. Ct. Dist. 1 Disposition of Criminal Case (a)-(c). All of the foregoing local rules were approved by the Mississippi Supreme Court pursuant to Mississippi Rule of Civil Procedure 83(b). 4 Donaldson cites two attorney general opinions, which he avers support his position. We find neither of them is on point. In any event, opinions of the attorney general are not binding on this Court. See Basil v. Browning, 175 So. 3d 1289, 1293 (Miss. 2015) (“It is well-settled that Attorney General’s Opinions are not binding on this Court and serve only as persuasive authority in appropriate cases.”).
11 II. The order of contempt found, in effect, that Donaldson had committed constructive criminal contempt. As a result, Donaldson’s due process rights were violated.
¶19. The contempt order does not specify whether Donaldson was found to be in civil or
criminal contempt of court. Donaldson argues that he had been charged with constructive
criminal contempt and that his due process rights were violated because he did not receive
“notice via service of process under [Mississippi Rules of Civil Procedure] 81(d)[,]” and he
did not receive a separate hearing that “should have been tried by another judge.”
¶20. Judge Cotton argues that the order of contempt was a valid civil contempt order
because the court entered it with the primary purpose of gaining Donaldson’s compliance
with the order dated April 3, 2020. Judge Cotton argues also that “[i]f, however, this [C]ourt
views [Donaldson’s] contempt as criminal contempt, then it must be characterized as direct
contempt.” Judge Cotton contends that under Wyssbrod v. Wittjen, 798 So. 2d 352 (Miss.
2001), the court’s having personal knowledge of the offense allows Donaldson’s conduct to
fall within the direct contempt category and “could be summarily handled by the court
without formal notice or a separate evidentiary hearing.”
¶21. Mississippi Code Section 43-21-153 provides that:
(1) The youth court shall have full power and authority to issue all writs and processes including injunctions necessary to the exercise of jurisdiction and to carrying out the purpose of this chapter.
(2) Any person who wilfully violates, neglects or refuses to obey, perform or comply with any order of the youth court shall be in contempt of court and punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment in jail not to exceed ninety (90) days, or by both such fine and imprisonment.
12 Miss. Code Ann. § 43-21-153 (Rev. 2021). “The decision to hold a person or entity in
criminal or civil contempt also is a discretionary function of the trial court.” In re Spencer,
985 So. 2d 330, 337 (Miss. 2008) (citing Wyssbrod, 798 So. 2d at 359).
¶22. “Contempt convictions are to be carefully examined.” In re Smith, 926 So. 2d 878,
887 (Miss. 2006) (citing Melvin v. State, 210 Miss. 132, 48 So. 2d 856 (1950)). “The first
question is whether the contempt is civil or criminal in nature, which we determine by
looking at the primary purpose of the contempt order.” Id. (citing Cooper Tire & Rubber Co.
v. McGill, 890 So. 2d 859, 868 (Miss. 2004)). This Court has held that:
If the primary purpose is to enforce the rights of private party litigants or to enforce compliance with a court order, the contempt is civil. [Common Cause of Miss. v. Smith, 548 So. 2d 412, 415 (Miss. 1989).] One may be jailed or fined for civil contempt, however, the contemnor must be relieved of the penalty when he performs the required act. Hinds County Bd. of Supervisors v. Common Cause of Mississippi, 551 So. 2d 107, 120 (Miss. 1989). Criminal contempt penalties are designed to punish for past offenses and they do not end when the contemnor has complied with the court order. Smith, 548 So. 2d at 415-16.
Conduct directed against the court’s dignity and authority is criminal contempt. Lawson v. State, 573 So. 2d 684, 686 (Miss. 1990). It involves an act “which tends to bring the court into disrepute or disrespect.” Lawson, 573 So. 2d at 686 (quoting Cook v. State, 483 So. 2d 371, 374 (Miss. 1986). Conduct amounting to criminal contempt must be directed against the court or against a judge acting judicially rather than individually. Culpepper v. State, 516 So. 2d 485, 486 (Miss. 1987).
Purvis, 657 So. 2d at 796-97.
¶23. In determining a contempt’s purpose, “the determination should focus on the character
of the sanction itself and not the intent of the court imposing the sanction.” Miss. Dep’t of
Mental Health v. Lamar Cnty. (In re C.W.), 250 So. 3d 1248, 1255 (Miss. 2018) (internal
13 quotation marks omitted) (quoting In re McDonald, 98 So. 3d at 1043). The order of
contempt stated in relevant part as follows:
As a result of his actions, this Court has no alternative but to hold Mr. John I. Donaldson in contempt of Court for his failure and refusal to abide by this Court’s April 3, 2020, Order requiring him to prepare the Orders following any and all adjudications, dispositions, permanency and review hearings. Mr. Donaldson is in contempt of Court for his failure to prepare any and all Orders since the entry of the April 3, 2020, Order requiring him to do so. Therefore, the Court does hereby impose a fine of $150.00 (representing $50.00 per day of hearings for which he failed to prepare the Orders) upon Mr. Donaldson which shall be paid to the Clerk of this Court within ten (10) days of entry of this Order.
Further, his continued refusal to prepare the Orders from this date forward will place him in continuing contempt of Court. As such, for each day on which hearings are conducted for which Mr. Donaldson is required to prepare these Orders, and he fails or refuses to do so within ten (10) days of said hearing, Mr. Donaldson will be automatically fined an additional $50.00 for his continued contempt.
¶24. “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.” In re
McDonald, 98 So. 3d at 1043 (internal quotation marks omitted) (quoting Graves v. State,
66 So. 3d 148, 151 (Miss. 2011)). The order of contempt found Donaldson in contempt “for
his failure to prepare any and all Orders since the entry of the April 3, 2020, Order[,]” i.e.,
past behavior, and sanctioned him with a $150 fine for that past behavior. The court went on
to find Donaldson in “continuing contempt of [c]ourt” for “his continued refusal to prepare
the [youth court] orders[.]” The purpose of the order of contempt as a whole was not to
motivate Donaldson to comply with Judge Cotton’s April 3, 2020 order. Rather, the primary
purpose of the contempt order as a whole was to punish Donaldson for his having failed to
14 comply with the court’s order of April 3, 2020. The order of contempt stated clearly that
Donaldson was being held in contempt “for his failure and refusal to abide by this [c]ourt’s
April 3, 2020, [o]rder[.]” The contempt order fined Donaldson $50 each for three youth court
hearings after that date for which he had failed to prepare orders, totaling $150. The
contempt order punished Donaldson for failing to prepare the youth court orders resulting
from hearings conducted on April 22, 27, and 28, 2020. Donaldson’s conduct was directed
against and was disrespectful of the court’s authority, which are characteristics of criminal
contempt. See Lawson, 573 So. 2d at 686. Despite the court’s continuing contempt language,
we find that the overriding and dominant purpose of the order of contempt was to punish
Donaldson for his past disobedience of the court’s order, thereby making his contempt
criminal in nature.
¶25. The dissent classifies the single order of contempt as a civil instead of criminal
contempt because “Donaldson’s status as contemnor would have ended with his compliance
with the Court’s April 3, 2020, order directing him to prepare orders.” Diss. Op. ¶ 43. This
is incorrect. First, contrary to the dissent’s assertions, Donaldson cannot fully “purge himself
of his contempt of court with compliance.” Diss. Op. ¶ 42. The dissent focuses only on the
continuing contempt language of the contempt order and ignores the first part of the order
that imposed a $150 fine for Donaldson’s past conduct. Additionally, this Court has held that
Contempts are neither wholly civil nor altogether criminal. And “it may not always be easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both.” Bessette v. Conkey, 194 U.S. [324], [24 S. Ct. 665, 667, 48 L. Ed. 997 (1904)].
15 Common Cause of Miss., 551 So. 2d at 120 (alterations in original) (quoting Gompers v.
Buck’s Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 55 L. Ed. 797 (1911)).While
it may be that the order’s continuing contempt language is suggestive of civil contempt, the
main thrust of the contempt order is the punishment of Donaldson for his past disobedience
of the trial court’s orders. Cf. In re C.W., 250 So. 3d at 1256. The order of contempt clearly
punished Donaldson by imposing a fine for his failure to abide by Judge Cotton’s order of
April 3, 2020, that required him to prepare the youth court orders for three court hearings.
Then, Judge Cotton continued in the order to give Donaldson a warning that he would be in
further contempt and would be punished automatically if he “fails or refuses” to prepare
future youth court orders. The main objective of the contempt order was to punish Donaldson
for his past refusal to prepare youth court orders, not to force or motivate him to comply with
Judge Cotton’s April 3, 2020, order.
¶26. Because we determine the type of contempt “by looking at the primary purpose of the
contempt order[,]” In re Smith, 926 So. 2d at 887 (citing Cooper Tire, 890 So. 2d at 868),
it is clear that the primary purpose of the order of contempt was to punish Donaldson “for
his failure and refusal to abide by [Judge Cotton’s] April 3, 2020, [o]rder[.]” The order of
contempt is largely criminal in nature. Therefore, we must determine whether it is a direct
or constructive criminal contempt order.
¶27. In Dennis v. Dennis we held:
There are two forms of criminal contempt: direct and constructive. Direct contempt occurs in the presence of the court and may be dealt with immediately. Indirect contempt occurs outside the presence of the court, and the defendant must be provided notice and a hearing.
16 Direct 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 . . . .
Unlike direct contempt, constructive contempt involves actions which are committed outside the presence of the court . . . In the case of constructive criminal contempt, we have held that defendants must be provided with procedural due process safeguards, including a specification of charges, notice, and a hearing.
Moulds v. Bradley, 791 So. 2d 220, 224-25 (Miss. 2001) (citations omitted).
Dennis v. Dennis, 824 So. 2d 604, 608-09 (Miss. 2002) (alteration in original). “[T]he
distinction between direct and constructive contempt is important in determining the
necessary procedural prerequisites to finding an individual in contempt.” Purvis, 657 So. 2d
at 797. “This Court has held that where the contemptuous act is direct . . . the court is
empowered to punish the actor summarily, but where the act is constructive . . . the court
must give the contemnor the procedural protections of notice and a fair hearing.” Wyssbrod,
798 So. 2d at 360 (citing Lawson, 573 So. 2d at 686).
¶28. The order of contempt was limited to Donaldson’s refusal to abide by the order of
April 3, 2020. Therefore, this Court examines Donaldson’s actions after the youth court had
entered its order of April 3, 2020. He did not prepare the youth court orders for hearings that
had been conducted on April 22, 27, and 28, 2020. On May 5, 2020, in response to an email
from Judge Cotton, Donaldson sent her a letter in which he expressly refused to prepare those
orders. On May 13, 2020, Judge Cotton and Donaldson had an informal meeting to try to
17 come to agreement, to no avail. We find that Donaldson’s contemptuous actions had been
committed outside the presence of the court.
¶29. Judge Cotton argues that if the contempt order is of a criminal nature, it was a direct
criminal contempt order and Donaldson was not entitled to notice or to a separate hearing.
The judge’s argument relies on Wyssbrod, 798 So. 2d 352. In Wyssbrod, an attorney
informed the trial court by telephone the morning of a court-ordered hearing that he would
not be at the hearing. Wyssbrod, 798 So. 2d at 357-61. As a result, the trial court held the
attorney in direct contempt for failure to appear at the hearing. Id. at 358. On appeal, this
Court recognized that “[c]ourts are divided as to whether an attorney’s absence is best
characterized as . . . direct contempt.” Id. at 360 (citing United States v. Nunez, 801 F.2d
1260, 1264 (11th Cir. 1986)). “This Court has held that a party’s failure to appear in court
at the appointed time constitutes constructive contempt.” Id. (citing Murrell v. State, 655 So.
2d 881, 887 (Miss. 1995), disagreed with on other grounds by Dilworth v. State, 909 So. 2d
731 (Miss. 2005)). Ultimately, we relied on a case from the United States Court of Appeals
for the Fifth Circuit, Smith v. Smith, 145 F.3d 335, 342 (5th Cir. 1998), which recognized
an exception: when the reason for the absence is known to the court, then the contempt can
be treated as direct contempt. Wyssbrod, 798 So. 2d at 360 (citing Smith, 145 F.3d at 342).
The Court found that the attorney’s behavior constituted direct contempt because he had
notified the court the morning of the hearing, meaning “[his] actions and reasons for his
actions were known to the court.” Id. at 361. As such, he “was not entitled to formal notice
or a separate evidentiary hearing.” Id.
18 ¶30. The reasoning of Judge Cotton’s argument seems to lead to a conclusion that
Wyssbrod created an exception that allows a court to treat a constructive criminal contempt
order as a direct criminal contempt order as long as the court had knowledge of the
contemnor’s actions and reasons for those actions, thus obviating the constructive contempt’s
due process protections. She asserts that “Donaldson specifically and directly advised Judge
Cotton of his intention to refuse to obey the Order; therefore, that refusal [was] within Judge
Cotton’s knowledge.” She claims that “[Donaldson’s actions clearly amounted to direct
contempt under Wyssbrod and could be summarily handled by the court without formal
notice or a separate evidentiary hearing.” Specifically, Judge Cotton asserts that Donaldson’s
letters and emails that informed the youth court of his intention not to comply with the order
were equivalent to the attorney’s telephone call in Wyssbrod.
¶31. We disagree. This Court based its opinion in Wyssbrod on an established exception
from a Fifth Circuit Court of Appeals case. See Smith, 145 F.3d at 342 (citing Thyssen, Inc.
v. S/S Chuen On, 693 F.2d 1171, 1175 (5th Cir. 1982)). But this Court’s research of other
jurisdictions’ case law has revealed that contemptuous “[l]etters written to a judge seem
uniformly to be cataloged as indirect and constructive contempt at best, never direct
contempt.” State v. Calabretta, No. CA-3170, 1986 WL 5512, at *3 (Ohio App. 1986); see
also Bulcke v. Sup. Ct. of Los Angeles Cnty., 94 P.2d 1006, 1009 (Cal. 1939) (“that letters
or other written communications sent through the mail to a judge necessarily seem to fall
within the class of contempts known as indirect or constructive contempts.” (internal
quotation marks omitted) (quoting 31 A.L.R. 1239))). The Supreme Court of California best
19 summarized why letters and emails should not form the basis for a direct contempt charge:
“A judge usually cannot say with any certainty that a letter or telegram received by him
purporting to be signed by a certain person was either written or sent by that person; hence
such an act, if contumacious, should be classified as an indirect contempt.” Id.
¶32. Therefore, we decline to apply the Wyssbrod exception because “[t]his Court will
normally favor finding that the contemnor’s actions involved constructive contempt when
there is a legitimate issue as to whether the contemnor has committed constructive or direct
contempt since constructive contempt requires a specification of charges, notice and a
hearing.” Purvis, 657 So. 2d at 798 (citing Wood v. State, 227 So. 2d 288, 290 (Miss. 1969));
see also Ex parte Redmond, 159 Miss. 449, 132 So. 328, 330 (1931) (“Whenever there is
any doubt whether the alleged contemnor has been guilty of direct or constructive contempt,
the doubt should be resolved in favor of the latter, rather than the former.”). Thus, this Court
finds that Donaldson’s alleged misconduct, if proven, amounted to constructive criminal
contempt and that Donaldson was entitled to due process protections.
¶33. The majority of Donaldson’s conduct occurred outside the Court’s presence and
“[w]ith regard to a contempt proceeding, ‘[t]he fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful manner.’” Vincent v.
Griffin, 872 So. 2d 676, 678 (Miss. 2004) (quoting Mathews v. Eldridge, 424 U.S. 319, 333,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). This Court has held that “[a] defendant in contempt
proceedings is entitled to notice and is entitled to be informed of the nature and cause of the
accusation, of his rights to be heard, to counsel, to call witnesses, to an unbiased judge, to
20 a jury trial,[5] and against self-incrimination, and that he is presumed innocent until proven
guilty beyond reasonable doubt.” Dennis, 824 So. 2d at 609 (citing Young v. United States
ex rel. Vuitton et Fils S.A., 481 U.S. 787, 798-99, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987)).
Donaldson was not afforded those due process rights.
¶34. “Criminal-contempt defendants are entitled to notice under Mississippi Rule of Civil
Procedure 81(d), which requires service of process.” In re McDonald, 98 So. 3d at 1045
(citing Miss. R. Civ. P. 81(d)(2)). Here, there is no evidence that Donaldson received notice
under Rule 81. As the Court stated in In re McDonald, the court’s “failure to issue [a]
summon[s] for the contempt proceeding[] violated the Defendant[’s] due-process rights and
warrants reversal of the contempt judgment[].” Id.
¶35. Additionally, we have held that, in constructive contempt cases, “[t]he citing judge
must recuse himself from conducting the contempt proceedings involving the charges.” In
re Smith, 926 So. 2d at 888 (internal quotation mark omitted) (quoting Cooper Tire, 890 So.
2d at 869). Because this was a constructive contempt order, Judge Cotton was required to
recuse herself and her failure to do so violated Donaldson’s due process rights. See Corr v.
State, 97 So. 3d 1211, 1215 (Miss. 2012) (“[The chancellor’s] failure to do so violated
Appellants’ due-process rights and warrants reversal of the contempt judgments.”).
¶36. This Court has held that when there has been a failure to issue a Rule 81(d) summons
to a defendant and no recusal by the trial judge, “the contempt judgments must be vacated.”
5 “[I]f the punishment is a fine exceeding $500 or imprisonment for more than six months, the accused is entitled to a trial by jury.” Graves, 66 So. 3d at 152 (citing Walls v. Spell, 722 So. 2d 566, 574 (Miss. 1998)).
21 In re McDonald, 98 So. 3d at 1045 (citing Purvis, 657 So. 2d at 797). Because Donaldson
was not properly served with a Rule 81(d) summons and Judge Cotton did not recuse, this
Court vacates the contempt order and remands the case to the Yazoo County Youth Court.
See id. at 1045-46. Judge Cotton shall recuse.
III. Donaldson did not have immunity from civil and criminal liability under Mississippi Code Section 7-5-25.
¶37. In addition to arguing that Judge Cotton violated his due process rights by holding him
in contempt, Donaldson asserts that the order of contempt violated his “immunity from civil
or criminal liability in acting in accordance with the Attorney General’s legal opinion[]”
under Mississippi Code Section 7-5-25. The relevant portion of Mississippi Code Section
7-5-25 provides
When any officer, . . . , or person authorized by this section to require such written opinion of the Attorney General shall have done so and shall have stated all the facts to govern such opinion, and the Attorney General has prepared and delivered a legal opinion with reference thereto, there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support.
Miss. Code Ann. § 7-5-25 (Rev. 2019) (emphasis added). First, Donaldson did not request
or receive a written opinion from the attorney general; therefore, this provision does not
apply. Second, even if the provision did apply, Donaldson’s argument is without merit. The
court ordered Donaldson to prepare the orders on April 3, 2020, and reliance on an attorney
general opinion is no defense to failure to comply with a court order. This argument is
without merit.
22 CONCLUSION
¶38. This Court finds that a youth court judge has the inherent power to order an attorney
to prepare court orders for youth court matters in which the attorney is a participant.
Therefore, we uphold Judge Cotton’s order of April 3, 2020, as a valid, enforceable court
order.
¶39. We find that Donaldson’s noncompliance occurred outside the youth court’s presence,
making the contempt charge against him one of constructive criminal contempt. Thus,
Donaldson was entitled to due process protections, which he was not given. Since Donaldson
was not afforded a hearing or served with notice of a hearing, and Judge Cotton did not
recuse, this Court vacates the order of contempt and remands the case to the Yazoo County
Youth Court for proceedings consistent with this opinion. Judge Cotton shall recuse.
¶40. VACATED AND REMANDED.
KING, P.J., MAXWELL, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, C.J., AND BEAM, J.
COLEMAN, JUSTICE, DISSENTING:
¶41. Because the record shows that Judge Cotton found John Donaldson to be in civil
rather than criminal contempt, I, with respect, dissent.
¶42. Judge Cotton signed two orders finding Donaldson to be in contempt of her directive
that he prepare youth court orders. In the first, she fined him $150 for past conduct, but she
also wrote the following:
Further, his continued refusal to prepare the Orders from this date forward will place him in continuing contempt of Court. As such, for each day on which
23 hearings are conducted for which Mr. Donaldson is required to prepare these Orders, and fails or refuses to do so within ten (10) days of said hearing, Mr. Donaldson will be automatically fined an additional $50.00 for his continued contempt.
(Emphasis added.) From the plain text of the order, Donaldson would no longer be in
contempt of court if he complied with the court’s April 3, 2020, order that he prepare court
orders. In other words, he would purge himself of his contempt of court with compliance.
If the primary purpose of the contempt order is to enforce the rights of private[-]party litigants or enforce compliance with a court order, then the contempt is civil. Purvis v. Purvis, 657 So. 2d 794, 796 (Miss. 1994). The contemnor may be jailed or fined for civil contempt; however, the contemnor must be relieved of the penalty when he performs the required act. Id. at 796–97. Criminal contempt penalties, on the other hand, are designed to punish the contemnor for disobedience of a court order; punishment is for past offenses and does not terminate upon compliance with the court order. Common Cause of Miss. v. Smith, 548 So. 2d 412, 415–16 (Miss. 1989).
Miss. Dep’t of Mental Health v. Lamar Cnty. (In re C.W.), 250 So. 3d 1248, 1256 (¶ 27)
(Miss. 2018) (alteration in original) (quoting In re Williamson, 838 So. 2d 226, 237 (¶ 29)
(Miss. 2002)).
¶43. In the case sub judice, Donaldson’s status as contemnor would have ended with his
compliance with the court’s April 3, 2020, order directing him to prepare orders. Because,
as set forth above, criminal contempt does not terminate upon compliance, I cannot agree
with the majority that the contempt here is criminal in nature. By contrast, we held the
contempt order at issue in In re C.W. to be criminal, not civil, in nature because the
contemnor could not possibly purge the contempt. In re C.W., 250 So. 3d at 1256 (¶ 30).
In In re McDonald, 98 So. 3d 1041 (¶ 1) (Miss. 2012), the chancellor found several parties
in what he characterized as civil contempt. He ordered that they, among other things, pay
24 $88,500 in sanctions. Id. On appeal, we held that the contempt was criminal in nature
because such penalties indicate punishment rather than an attempt to compel compliance.
Id. at 1043 (¶ 5). Notably absent from the Court’s discussion of the contempt order at issue
was any process by which the contemnors could purge their contempt. See also Corr v.
State, 97 So. 3d 1211 (Miss. 2012). In Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶¶ 15-18)
(Miss. 2011), we characterized as civil contempt an order by a chancellor fining an ex-wife
$500 for every hour she remained in the marital home as civil contempt. Id. at 147 (¶¶ 15-
18).
¶44. The majority responds by arguing that Judge Cotton must have found Donaldson in
criminal contempt because, should Donaldson choose to comply with the April 2020 order
and thereby no longer be in contempt, he will not get the money he paid while in contempt
back. The majority cites no authority for its proposition that fines paid while in contempt
must be refunded once a party complies before the contempt can be considered civil, and
indeed no such authority exists. That such is the case is not surprising. Civil contempt
would lose much if its effectiveness if a contemnor could simply hold out against a court
order, knowing that all fines would be refunded at the time of the contemnor’s choosing.
One purges oneself of civil contempt by obeying the order of the court, not by getting a
refund. Smith, 548 So. 2d at 415.
¶45. I agree with the majority’s disposition of the primary issue of whether Judge Cotton
had the authority to order Donaldson to prepare orders. However, because Judge Cotton
25 found Donaldson to be in civil contempt and because I discern no manifest error in her
choosing to do so, I would affirm.
RANDOLPH, C.J., AND BEAM, J., JOIN THIS OPINION.