OPINION OF THE COURT
(December 31, 2008)
This matter comes before this Court due to the failure of Carolyn Burke (hereafter “Burke”), Official Court Reporter, to timely file transcripts in five appeals currently pending before this Court. For the following reasons, we find Burke in contempt of Court and impose monetary sanctions.
Burke, an Official Court Reporter, was responsible for filing transcripts of Supеrior Court proceedings in five matters that have been appealed to this Court.
In Petroleum Holdings-Two Bros., Inc. and Petroleum Holdings-Peters Rest, Inc. v. Theodore Cohen (hereafter “Petroleum Holdings”), Civ. No. 2007-123, this Court denied without prejudice Burke’s request for an extension of time to July 20, 2008, to file the transcript. This Court also required that Burke file with the Court Part II — Court Reporter Acknowledgement of Transcript Purchase Order (“TPO”) within ten days. On June 25, 2008, having not received Part II of the TPO or the transcript, this Court ordered Burke to show cause, in writing, within ten days, why she should not be held in contempt and to file the transcript with this Court within ten days. Burke failed to respond to the show cause order, and did not file the transcript or Part II of the TPO with this Court within ten days as directed.
In Albert Marcelle, Jr., v. Gov’t of the Virgin Islands (hereafter “Marcelle, Jr.”), Crim No. 2007-128, this Court denied Burke’s request for an extension of time to June 20, 2008, and ordered her to file with the Court Part II of the TPO. Having not received Part II of the TPO or the transcript as of June 25, 2008, this Court again issued an Order requiring Burke to show cause why she should not be held in contempt of Court and again ordering her to file the transcript within ten days. A month later, on July 23, 2008, the Court finally received Part II of the TPO. However, Burke failed to specify the date on which she expected to have the transcript completed. See V.I. S. Ct. R. 11(b) (requiring the court reporter to transmit Part II of the TPO to the Court with an estimation of the number of pages being transcribed and the date on which the transcript will be completed). Despite acknowledging that she received the TPO on January 9, 2008, this Court did not recеive Part III of the TPO, which serves as notification that the transcript was filed with the Superior Court, until September 22, 2008. To date, Burke has failed to respond to the show cause order.
On September 23, 2008, this Court issued an order requiring Burke to appear at its next session of oral arguments on October 24, 2008, to address the Petroleum Holdings and Marcelle Jr. matters and explain why she should not have sanctions imposed for her contempt. On October 8, 2008, Burke finally submitted the Petroleum Holdings transcript.
In Jared Bernhardt v. Margaret Bernhardt (hereafter “Bernhardt”), Civ. No. 2007-132, Appellant’s counsel hand delivered Part I of the TPO to the Superior Court on December 6,2007. Although Appellant’s counsel attempted to contact Burke repeatedly between December 2007 and May 2008, Burke could never be reached. In May 2008, Burke finally informed counsel’s office that she had not received the December 6, 2007 TPO.
On May 29, 2008, Appellant’s counsel sent Burke a second TPO. In July 2008, Burke filled out her portion of the form, but indicated that arrangements for payment had not been made. Appellant’s counsel states that she attempted to contact Burke several times to obtain the information necessary to tender payment, but has not been аble to reach Burke. Appellant’s counsel informed the Court, in a September 12, 2008 letter, that because of the delays in obtaining the transcript, her client “remains ousted from his home with very limited access to his children.”
In an October 3, 2008 order, this Court ordered Burke to file the Bernhardt transcript within ten days, as well as to show cause, in writing, as to why she should not be held in contеmpt for failure to timely transmit the transcript to this Court. This Court also ordered Burke to appear at its next session of oral arguments on October 24,2008, to address this matter and explain why she should not be sanctioned for her apparent contempt. Burke filed the Bernhardt transcript in Superior Court on October 21, 2008, but did not respond to the show cause order.
In Dwayne Tobal v. People of the Virgin Islands (hereafter “Tobal”), Crim No. 2008-070, this Cоurt granted, in a September 8, 2008 Order, the Appellant’s motion for expedited appeal, and accordingly ordered Burke to file the transcript on or before September 18,2008. However, Burke did
On October 24, 2008, Burke, represented by counsel, appeared before this Court to explain her repeated failure to submit transcripts on time and to comply with this Court’s orders. At this hearing, Burke’s counsel explained that Burke had difficulty submitting her transcripts in a timely fashion due to persistent back problems. Burke’s counsel stated that Burke had requested special accommodations from the Superior Court to accommodate these problems, but was told that such accommodаtions would not be possible. Burke’s counsel also informed the Court that she had experienced a death in her immediate family in the past year that made it increasingly difficult for her to prepare transcripts. Finally, Burke’s counsel attributed Burke’s failure to respond to this Court’s show cause orders to a “paralysis of fear.”
At the conclusion of the Oсtober 24, 2008 hearing, we invited Burke to, within ten days, meet with her supervisor and inform this Court of a recommended course of action for ensuring that the problems encountered do not re-occur. We have not received such an update from Burke.
II. JURISDICTION
“Every court of the Virgin Islands shall have power to punish by fine or imprisonment, at its discretion, such contempt оf its authority, and none other as . . . disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 14 V.I.C. § 581. See also 4 V.I.C. § 281 (“Every judicial officer shall have power ... to compel obedience to his lawful orders.”); 4 V.I.C. § 282 (“For the effectual exercise of the powers conferred in [4 V.I.C. § 281] a judicial officer may punish for contempt in
III. DISCUSSION
At the outset, this Court wishes to rеcognize the high volume and demanding nature of the work handled by the Superior Court’s official court reporters. This Court has considered these factors when evaluating requests for extensions of time, and has exercised its discretion in not sanctioning court reporters — including Burke — for relatively simple failures to perform their duties. See, e.g., Edwardo Carmona, Jr. v. People of the Virgin Islands, S. Ct. Crim. No. 2008-044 (V.I. Sept. 10, 2008) (granting court reporter’s request for extension of time to file transcript); Novelle Watts, Jr. v. Two Plus Two, Inc. and Wayne Bell, S. Ct. Civ. No. 2007-127 (V.I. June 24, 2008) (vacating show cause order for failure to file transcript after transcript was filed, albeit untimely); Martin v. Martin, S. Ct. Civ. No. 2007-117 (V.I. May 13, 2008) (granting Burke extension of time to complete transcript); Martin v. Martin, S. Ct. Civ. No. 2007-117 (V.I. Aug. 8, 2008) (accepting transcript filed 31 days late by Burke, but warning that “such dilatory tactics are not appreciated by this Court.”).
Burke’s actions, however, go far beyond a simple failure to perform her duties. As we shall explain below, Burke’s “failure to meet a long series of deadlines set for her” has resulted in “severe prejudice to both the parties and the court” that requires a finding of contempt and impositiоn of appropriate sanctions. Matter of Holloway,
Pursuant to this Court’s Rules of Appellate Procedure, a court reporter has ninety days to file a transcript after receipt of order. See V.I. S. CT. R. 11(b). Furthermore, Supreme Court Rule 11 (b) allows a court reporter to file a request for an extension of time with the Clerk of the Supreme Court if she believes that she cannot complete a transcript order within this ninety day period.
“A party may be held in civil contempt for failure to comply with a court order if ‘(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, аnd (3) the contemnor has not diligently attempted to comply in a reasonable manner.’ ” Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Tech., Inc.,
Burke has attributed her failure to submit transcripts in a timely mаnner to back problems and a death in her family. However, these factors, while they may serve to mitigate the punishment ultimately imposed, are not sufficient to excuse Burke for being held in contempt. Other courts, when faced with the same issue of whether to sanction a court reporter for failure to timely submit transcripts, have universally declined to withhold a contempt finding due to the existence of similar circumstances. See, e.g., People v. McGlotten,
As the Colorado Court of Appeals explained, “court reporters are considered officers of the court,” and thus are subject to a heightened duty because “their failures are attributable to the state.” McGlotten,
Furthermore, this Court is not convinced that Burke’s back problems and the death in her family rendered her unаble to timely file the transcripts in these cases. Other courts have found that the continuation of employment as a court reporter negates a defense that medical issues or problems in one’s personal life prevented a court reporter from discharging her duties. For instance, the McGlotten court rejected a court reportеr’s contention that her affliction with cancer prevented her from assisting in the preparation of the unfiled transcripts because she was still able to perform her full-time job as a court reporter in federal court, and thus her cancer diagnosis clearly did not interfere with her ability to prepare the requested transcripts. Id. at 492. In the instant сase, throughout the relevant period Burke has continued her employment as an official court reporter in the Superior Court, and nothing indicates that Burke’s back problems or the death of her relative have interfered with her job. Accordingly, these difficulties do not excuse Burke’s failure to submit the instant transcripts on time.
Finally, we note that evеn if these difficulties did impact Burke’s ability to file transcripts in a timely manner, the proper course of action
B. Monetary Sanctions are the Appropriate Punishment for Burke’s Contempt
Most courts, when holding a court reporter in contempt, have imposed a sanction that includes a fine,
We do find, however, thаt monetary sanctions are necessary. We consider Burke’s conduct sufficiently egregious that some sanction must be assessed to deter such dilatory conduct in the future. Burke’s actions have unacceptably prejudiced the litigants in these matters. Because of Burke’s tardy filings, briefing in Monsanto — a habeas appeal — and Marcelle Jr. — a criminal case — have been delayed by almost a year. Likеwise, counsel for the Appellant in Bernhardt alleges that her client has not been able to see his children or live in his house during the 11 month period she has been waiting to receive a 35 page transcript from Burke. Similarly, Petroleum Holdings, albeit a civil case, has been delayed almost a year due to Burke’s actions. Finally, though not rising to the same level of harm as in the other four cases, Burke’s failure to timely submit the transcript in Total — an expedited appeal pertaining to a criminal defendant’s pre-trial detention —■ resulted in both parties receiving even fewer days to submit their appellate briefs, as well as giving this Court less time to consider those briefs prior to oral argument.
Burke’s actions have not only delayed the appellate process, but have wasted scarce judicial resources. As a direct result of Burke’s repeated violations of this Court’s rules and orders, the Justices of this Court, their law clerks, and this Court’s deputy clerks have spent countless hours drafting and entering orders and revising briefing schedules in the affected matters. Furthermore, Burke’s failures to respond to this Court’s multiple show cause orders or provide any explanation for her failure to submit
This Court, having weighed the mitigating factors against the prejudice to the parties and harm to this Court, concludes that a fine equal to the lesser of $1000.00 or fifty percent of the revenue Burke obtained or is entitled to receive from preparation of the instant five transcripts is an appropriate monetary sanction. Such sum is to be determined by the Clerk of this Court.
IV. CONCLUSION
For the foregoing reasons, this Court holds Burke in civil contempt, and imposes a fine equal to fifty percеnt of the revenue Burke obtained from preparing the Petroleum Holdings, Marcelle Jr., Monsanto, Bernhardt, and Tobal transcripts as the sanction for Burke’s contempt.
Notes
Although Burke files her transcripts with the Superior Court rather than with this Court, this fact is immaterial to the jurisdictional analysis because a timely notice of appeal divests the Superior Court of jurisdiction and it is the rules and orders of this Court, not the Superior Court, that have been violated. See Matter of Peasley,
Although Burke initially requested extensions in Petroleum Holdings andMarcelle Jr., these extension requests made no mention of Burke’s back problems or the death in her family. No requests for extension of time were filed in Tobal, Bernhardt, or Monsanto.
See, e.g., Holloway,
See, e.g., United States v. Tucker,
Although not directly relevant to the matter of Burke’s contempt, we wish to remind Burke thаt the sanctions imposed by this Court are not the only potential negative consequences Burke may face as a result of her failure to timely submit transcripts. The United States Supreme Court has held that court reporters are not entitled to immunity when acting in their capacity as court reporters, and thus litigants aggrieved by a court reporter’s failure to timely submit a transcript may maintain a civil suit against that court reporter to recover damages stemming from the delay. See Antoine v. Byers & Anderson, Inc.,