In Re: Glay Collier, II
582 F. App'x 419
5th Cir.2014Background
- Collier, a Louisiana consumer bankruptcy attorney, was sued by a client (Wheeler) for mishandling funds and violations of 11 U.S.C. §§ 362(a) and 524; the district court granted summary judgment on the § 362 claim and proceeded under § 105 as to § 524.
- The district court issued an order (July 14, 2014) directing Collier to stop advertising “No Money Down” Chapter 7 services and later set a show-cause hearing (July 28) for alleged violations.
- At the July 28 hearing, evidence showed Collier had stopped television ads by the deadline but five websites (28 ads) remained; most were removed by July 23 and the final ad was being removed but had not disappeared by the hearing.
- The district court found Collier in contempt and sentenced him to an unconditional 48-hour jail term, ordering immediate remand to the U.S. Marshal.
- Collier sought emergency mandamus from the Fifth Circuit, arguing the contempt and imprisonment were criminal in nature and required the procedural protections for criminal contempt; the Fifth Circuit stayed the sentence and later granted mandamus vacating the contempt order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nature of contempt: civil vs criminal | Collier: Although court labeled it civil, the 48-hour unconditional jail term is criminal and required criminal-procedure protections | District court: Proceeding was civil contempt (court so stated on record and in show-cause order) | The contempt was criminal in nature because the sentence was unconditional and punitive; criminal protections were required |
| Adequacy of procedural protections | Collier: He lacked required notice, prosecution, and standards applicable to criminal contempt (e.g., Rule 42 protections, burden beyond reasonable doubt) | District court: Characterized proceeding as civil; did not apply criminal procedures | Court held district court failed to provide required criminal-contempt procedural protections |
| Standard of proof applied | Collier: Record does not reflect application of criminal standard beyond a reasonable doubt | District court: Did not explicitly apply heightened standard; treated as civil | Fifth Circuit noted absence of required criminal standard and that record did not show willfulness found beyond reasonable doubt |
| Remedy—mandamus availability | Collier: Immediate relief necessary because he was remanded and had no adequate alternative remedy | District court: Sentence already imposed; normal appeals may be available later | Mandamus appropriate: Collier had no other adequate means and his right to relief was clear and indisputable; writ granted vacating contempt order |
Key Cases Cited
- Kerr v. U.S. Dist. Court, 426 U.S. 394 (1976) (mandamus is a drastic remedy for extraordinary situations)
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (established three-part test for mandamus relief)
- In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir.) (mandamus standard; right to writ clear if district court abused discretion)
- In re Bradley, 588 F.3d 254 (5th Cir.) (civil vs criminal contempt analysis and tests)
- Lewis v. S.S. Baune, 534 F.2d 1115 (5th Cir.) (court’s characterization of proceeding is a factor but not conclusive)
- United States v. Puente, [citation="558 F. App'x 338"] (5th Cir.) (criminal-contempt procedural and evidentiary protections)
- In re Times Picayune, L.L.C., [citation="561 F. App'x 402"] (5th Cir.) (mandamus remedy is extraordinary)