Nаomi ISAACSON, Plaintiff-Appellant, v. Nauni Jo MANTY, Defendant-Appellee.
No. 12-2384.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 12, 2012. Filed: July 19, 2013.
Rehearing and Rehearing En Banc Denied Sept. 5, 2013.
721 F.3d 533
Before LOKEN, MELLOY, and COLLOTON, Circuit Judges. COLLOTON, Circuit Judge.
of the matter asserted—i.e., that Childs spoke with Andrews. As such, it is hearsay.
The second statement—Childs‘s report that Andrews said “he couldn‘t do anything about it“—is also inadmissible. This statement is hearsay within hearsay. Boyce testified about a statement by Childs that reported a statеment by Andrews. This type of evidence is admissible only “if each part of the combined statements conforms with an exception to the rule [against hearsay].”
There is no admissible evidence to establish that Andrews knew about а substantial risk to Glaze‘s safety. Andrews is thus entitled to qualified immunity.
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For the foregoing reasons, we affirm the denial of qualified immunity to Childs, reverse the denial of qualified immunity to
Orva Lee Boothby, argued, Washington, DC (James Allen Jardine, on the brief, Saint Paul, MN), for appellant.
Timothy Joseph Pramas, argued, Minneapolis, MN (Nauni Manty, on the brief), for appellee.
Naomi Isaacson was sanctioned by the United States Bankruptcy Court for the District of Minnesota for making factually unsupported and harassing statements in documents filed with the court. Isaacson appeals, arguing principally that the bankruptcy judge‘s failure to recuse herself from the sanctions proceedings violated Isaacson‘s rights under the Due Process Clause of the Fifth Amendment. We affirm.
Isaacson is the рresident of Yehud-Monosson USA, Inc., a New York corporation that filed a petition for relief under Chapter 11 of the Bankruptcy Code in the Southern District of New York. The bankruptcy case was transferred to the District of Minnesota and converted to a Chapter 7 proceeding.
A discovery dispute arose between the Chapter 7 trustee, Nauni Manty, and Isaacsоn. Manty asserted that Isaacson had not turned over certain documents and filed a motion for turnover. The court granted Manty‘s motion and entered a turnover order stating that if Isaacson failed to turn over certain materials and Manty filed an affidavit identifying those materials, then the court would “issue the appropriate sanctions against Naomi Isaacson for hеr failure to comply with this court‘s order, which may include monetary sanctions and/or a finding of contempt punishable by arrest and incarceration.” Manty then filed an affidavit of noncompliance. The bankruptcy judge who had issued the turnover order recused himself, and the case was reassigned to a new judge.
Manty filed a motion for contempt, and the hearing on that mоtion was continued and rescheduled for December 6. On November 17, 2011, the new bankruptcy judge1 issued an order requiring Isaacson to appear at the December 6 hearing, because contempt was sought against her personally rather than against the debtor. On November 25, Isaacson moved to vacate the order and filed a memorandum in support of her mоtion. In that memorandum, Isaacson leveled accusations of bigotry, prejudice, and conspiracy against both bankruptcy judges, trustee Manty, the United States trustee, and the entire judicial system. Among other things, Isaacson referred to the new bankruptcy judge as a “black-robed bigot” and “Catholic Knight Witch Hunter,” described Manty‘s “track record of lies, deceit, treachery, аnd connivery,” called the United States trustee a “priest‘s boy,” accused the judge and trustees of ex parte communications, and declared that “[a]cross the country the court systems and particularly the Bankruptcy Court in Minnesota, are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church.”
At a November 29 hearing on thе motion to vacate, Isaacson‘s attorney acknowledged that Isaacson had written the memorandum. The court denied the motion to vacate. Isaacson did not appear as ordered at the December 6 contempt hearing, and the court issued an order finding Isaacson in civil contempt for her failure to comply with the turnover order and for her failure to appear. The order provided that Isaacson could purge herself of the contempt for failure to comply by turning over certain documents to Manty, and of the contempt for failure to appear by appearing at a hearing on January 4, 2012.
The bankruptcy court also sua sponte issued an order to show cause relatеd to Isaacson‘s November 25 memorandum. The court identified ten “unsupported” and “outrageous” statements, and ordered Isaacson and her attorney to appear at the January 4 hearing to show cause why sanctions should not be imposed against each of them pursuant to
Isaacson‘s written response to the order to show cause defended the veracity of all statements in her November 25 memorandum and made similar statements anew. Among other statements, Isaacson explained that her description of the bankruptcy judge as a “Catholic judge” did not refer to the Roman Catholic Church, but rather to “а mentality and an adherence to a universal creed of White Supremacy.” Isaacson then failed to appear at the January 4 hearing. The bankruptcy judge ruled that Isaacson had violated
The district court,2 applying
II.
A.
Before reaching the merits, we must first consider our jurisdiction over this appeal. The Supreme Court held in Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 205-10, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999), that an order of sanctions against counsel pursuant to
Our jurisdiction over bankruptcy appeals, however, is governed by
The bankruptcy court invoked
Winslow v. Hunter (In re Winslow), No. 91-1239, 1992 WL 19837, at *2 (10th Cir. Feb. 5, 1992); Oxley v. Watson (Matter of Watson), 884 F.2d 879, 880-81 (5th Cir. 1989); cf. Klestadt & Winters, 672 F.3d at 816 n. 7; In re Rimsat, Ltd., 212 F.3d 1039, 1044 (7th Cir.2000). But Isaacson contends that the sаnctions issued against her are criminal in nature, because the monetary penalty was punitive and not intended to compensate the court. If the sanctions order is criminal rather than civil, then it is a final, appealable order. Union Tool Co. v. Wilson, 259 U.S. 107, 111, 42 S.Ct. 427, 66 L.Ed. 848 (1922).
As presented by the parties, therefore, the jurisdictional inquiry seems to turn on whether a non-compensatory monetary sanction made payable to the court and issued under
On close review, however, we conclude that
That
torneys,
Even where a court cites incorrect authority as the basis for contempt sanctions, we may consider alternative grounds for the imposition of those sanctions, so long as the court could have sanctioned the same conduct under another source of authority, the court‘s findings are adequate to meet the applicable standard, and the contemnor‘s due process rights are protected. Fellheimer, Eichen & Braverman, P.C. v. Charter Techs., Inc., 57 F.3d 1215, 1225-27 (3d Cir.1995); In re Courtesy Inns, Ltd., 40 F.3d 1084, 1089-90 (10th Cir.1994). The bankruptcy court determined that Isaacson caused the filing of papers that contained “unbelievably and unmitigatingly outrageous” assertions. This is the sort of contumacious conduct that is sanctionable under the court‘s inherent power. See Chambers, 501 U.S. at 50, 111 S.Ct. 2123; Caldwell, 77 F.3d at 283-85; United States v. Thoreen, 653 F.2d 1332, 1340 (9th Cir.1981); Chilcutt v. United States, 4 F.3d 1313, 1328 (5th Cir.1993) (Jones, J., concurring). As Isaacson received notice of the “precise ground for the imposition of sanctions” and an opportunity to be heard, we may consider whether the award should be affirmed based on the bankruptcy court‘s inherent power. Fellheimer, 57 F.3d at 1227. Because the monetary penalty was punitive, payable to the court, and noncompensatory, the penalty imposed was criminal in nature. Hicks v. Feiock, 485 U.S. 624, 631-32, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). We therefore have jurisdiction over this appeal. Union Tool Co., 259 U.S. at 111.
B.
Isaаcson challenges the bankruptcy judge‘s failure to recuse herself from the contempt proceedings. Isaacson asserts that the statements for which she was sanctioned “greatly offended the personal sensitivities of the judge,” and that the rationale of Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), required the judge to recuse. Mayberry held that where a judge was the target of a litigant‘s ongoing “brazen efforts to denounce, insult, and slander the court” during a twenty-one-day trial, id. at 462, 91 S.Ct. 499, and became “embroiled in a running, bitter controversy” with the litigant, recusal was necessary. Id. at 465, 91 S.Ct. 499. “No one so cruelly slandered,” thought the Court, “is likely to maintain that calm detachment necessary for fair adjudication.” Id.; see also Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974) (reassignment required where judge had “become embroiled in a running controversy” with putative contemnor, despite the absence of “personal attack“).
Isaacson, however, did not move for recusal or object to the judge‘s participation, and she therefore forfeited any objection. We review forfeited objections in a criminal proceeding under the plain-error standard of
In Mayberry, the Supreme Court held that “a defendant in criminal contempt proceedings shоuld be given a public trial before a judge other than the one reviled by the contemnor.” 400 U.S. at 466. But the Court also explained that “not every attack on a judge... disqualifies him from sitting.” Id. at 465. The Court distinguished Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), which affirmed a contempt conviction where the same judge who had been the subject of the contemnor‘s vitriol presided over the contempt proceedings. In Ungar, a hostile prosecution witnеss refused to answer questions and accused the court of badgering him and suppressing evidence. Id. at 579-80, 84 S.Ct. 841. The trial judge did not become “embroiled in intemperate wrangling” with the witness, but “strongly admonished [him] that his conduct was disruptive and disorderly and that he would be held to the natural consequences of his acts.” Id. at 585, 84 S.Ct. 841. Ungar held that the judge‘s participation in the contempt proceedings was not а due process violation, because the record did not create “an abiding impression that the trial judge permitted himself to become personally embroiled with the petitioner.” Id. Although the witness had offered “disruptive, recalcitrant and disagreeable commentary, [it was] hardly an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.” Id. at 584, 84 S.Ct. 841.
The line between Ungar and Mayberry is indistinct, and this case is not obviously governed by Mayberry and its requirement of recusal. In Mayberry, the contemnor persistently antagonized the judge over twenty-one days, calling him a “dirty, tyrannical old dog,” “stumbling dog,” and “fool” to his face. 400 U.S. at 456-61. The Court determined that this behavior was “apt to strike at the most vulnerable and human qualities of a judge‘s temperament,” and thus required a different judge to preside over the contempt proceedings. Id. at 466 (internal quotation omitted). Unlike the “fighting words” uttered in the judge‘s presence over a considerable period of time in Mayberry, Isaacson‘s statements were a scattered attack on various participants in the legal process that were submitted to the bankruptcy court in written memoranda. The record does not show obviously that the judge became “embroiled in intemperate wrangling,” Ungar, 376 U.S. at 585, or that Isaacson‘s attack was apt to interfere with the judge‘s temperament. Mayberry, 400 U.S. at 466. The bankruptcy judge reasonably could have concluded that Mayberry did not apply. There was no obvious error.
But even if Mayberry‘s analysis were applied categorically whenever the same judge “reviled by the contemnor” presides over the contempt proceedings, id., Isaacson has not demonstrated prejudice or a miscarriage of justice arising from the bankruptcy judge‘s participatiоn. While it is “structural” error for a “biased trial judge” to preside in a case, Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)), and it is an open question whether an obvious structural error automatically satisfies the third prong of the plain-error test, Puckett v. United States, 556 U.S. 129, 140-41, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), the Mayberry rule addresses the appearance of bias. Mayberry focused on the likelihood that a judge could “maintain that calm detach-
ment
We see no reasonable probability of a different outcome before a different judge. The evidence of Isaacson‘s contempt was undisputed and aggravated. Isaacson‘s attorney admitted that Isaacson authored the memorandum with unsubstantiated and scurrilous allegations against the court, the trustees, and the judicial system. After the bankruptcy court put Isaacson on notice that she could face monetary sanctions of $1,000 for each of ten unsubstantiated statеments, Isaacson defended their veracity and leveled similar assertions. When the bankruptcy court afforded Isaacson an opportunity to be heard, she failed to appear at the contempt hearing. Only then did the judge issue a sanctions order with a penalty of $500 per statement. Isaacson has not shown a reasonable probability that another judgе would have sanctioned her differently. Given the essentially uncontroverted evidence of contempt, there likewise is no basis for concluding that any error seriously affected the fairness, integrity, or public reputation of judicial proceedings. See United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).
C.
Isaacson‘s remaining claims about the contempt process are without merit. The bankruptcy court adequately explained the reason for the sanctions, saying that Isaacson‘s statements were “totally devoid of any true, factual” basis, and that the motion to vacate was “frivolous” and “inflammatory.” After the court issued an order to show cause why Isaacson should not be sanctioned $1,000 per statement, she continued to file documents that were replete with similar statements. We think $500 per statement in these circumstances satisfactorily reflects the seriousness of the contumacious behavior, the public interest in terminating the contemnor‘s activity, and the importance of deterring such acts in the future. See United States v. United Mine Workers of Am., 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947). The bankruptcy court did not abuse its discretion.
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For the foregoing reasons, the judgment of the district court is affirmed.