Wilson v. MooreWilson v. Moore
ORDER
THIS CAUSE сame before the Court upon the Petition of James Wilson for Writ of Habeas Corpus (filed September 13, 1999).
THE MATTER was referred to the Honorable Charlene H. Sorrentino, United States Magistrate Judge. A Report and Recommendation dated February 1, 2001 has been filed recommеnding that the Petition be DENIED as to Claims Two, Three, and Four, and GRANTED as to Claim One, and that the conviction for criminal contempt be vacated.
It appears from a review of the record that no written objections to the Report and Recommendation have been filed.
Accordingly, after a de novo review of the record herein, and being otherwise fully advised in the premises, the Court enters the following Order ADOPTING the Report and Recommendation in part. For the reasons stated in the Report and Recommendation, the Petition will be DENIED as to Claims Two, Three, and Four. For the reasons set forth below, the Petition will be GRANTED as to Claim One, and Petitioner’s conviction for criminal contempt VACATED.
I. Background
In Claim One, Petitioner contends that his conviction for indirect criminal contempt of court was entered in violation of his First Amendment right to freedom of sрeech. Petitioner is currently confined in a state correctional institution, and is serving sentences for multiple felonies that are not under attack in this petition. This petition concerns only the six month consecutive sentence that was added to that term for his contempt conviction.
As discussed by Magistrate Judge Sor-rentino, the conviction for indirect criminal contempt stemmed from a letter written to Chief Judge Richard G. Payne of the Circuit Court of Monroe County, Florida. Chief Judge Payne had presided over Petitioner’s trial, but recused himself рrior to the March 25, 1997 sentencing. The letter was sent after the recusal and sentencing, but during the pendency of the appeal. The letter is quoted verbatim in the Report and Recommendation, and need not be restated here. This Court agrees with Magistrate Judge Sorrentino’s characterization of the letter as insulting but not threatening.
After a hearing before Judge Steven P. Shea, Petitioner was held to be in indirect criminal contempt. See DE # 10, Ex. B. Judge Shea found that the letter contained several “profane” statements, a “denigrating” statement, аnd a “derogatory” statement, and noted that Petitioner addressed Judge Payne as “Mr.” rather than “Judge” or “Your Honor.” Judge Shea further noted: “Indirect criminal contempt may be found not only for violation of a court order, but also if Defendant’s conduct was calculated to embarrass, hinder, intimidate, influence, impede or obstruct the Court in the administration of justice, or calculated to lessen the Court’s authority and dignity.” Ultimately, the court concluded that the statements “were calculated to embarrass the Court and to lessen the Judge’s аuthority and dignity,” and therefore, held Petitioner in criminal contempt.
Petitioner appealed this conviction, and the conviction was affirmed per
curiam. See
DE # 10, Ex. E. In support, the appellate court cited only
O’Brien v. State,
Because Petitioner’s First Amendment claim was litigated in state court, this Court may not grant his application for writ of habeas corpus unless the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of evidence presеnted in the State court proceeding.
II. Relevant Supreme Court Precedent
It is well-established that there must be a “clear and present danger of the obstruction of justice” before out-of-court speech may be punished—even when the matter in question is still pending before the court.
See, e.g., Craig v. Harney,
For example, in
Craig v. Harney,
a newspaper publisher, editorial writer, and news reporter were held in contempt for publishing news articles that gave an “unfаir” report of what had transpired before a judge, when the matter was still pending before the court.
Craig,
Similarly, in
Pennekamp v. Florida,
What is meant by clear and present danger to fair administration of justice? No definition cоuld give an answer. Certainly this criticism of the judge’s inclinations or actions in these pending nonjury proceedings could not directly affect such administration. This criticism of his actions could not affect his ability to decide the issues. Here there is only criticism of judicial action аlready taken, although the cases were still pending on other points or might be revived by rehearings. For such injuries, when the statement amounts to defamation, a judge has such remedy in damages for libel as do other public servants.
Id.
at 348,
Furthermore, in the seminal case
New York Times Co. v. Sullivan,
Where judicial officers are involved, this Court hаs held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice.
Id.
at 272-73,
Finally, in
Gentile v. State Bar of Nevada,
III. Standard Applied by State Court
In the instant case, the state appellate court did not apply this Supreme Court precedent, instead relying exclusively upon the case
O’Brien v. Florida,
In addition, the trial judge in the instant case did not even make a finding that the speech “tended to degrade the court or the judge as a judicial officer.” Rather, as discussed, Judge Shea simply found that the statements “were calculated to embarrass the Court and to lessen the Judge’s authority and dignity.” This “calculated” to embarrass or to lessen authority and dignity standard is also patently less stringent than the standards set forth in the Supreme Court cases discussed above.
Notably, the facts of O’Brien, relied on by the state appellate court, arе indeed remarkably similar to the facts of the instant case. For example, in both cases, a defendant in a criminal case sent a letter to the trail judge after his conviction but while the appeal was still pending. The instant ease is only different in that the trial judge had recused himself from the case before sentencing and before the letter was sent. Importantly, the O’Brien court distinguished the line of Supreme Court cases applying a stricter test from these facts, stating:
We are unable to equate a letter reflecting upon the motives and integrity of the court written directly to the court in connection with matters under consideration as even being remotely related to those situations involving First Amendment guarantees contemplated by Pen-nekamp v. Florida.
Id.
at 257
(citing Pennekamp v. Florida,
In essence, the state court in O’Brien distinguished the Supreme Court cases applying thе clear and present danger test on two grounds. First, the letter was directed at matters then under consideration by the appellate court. Second, the letter was sent directly to the formerly presiding judge by the defendant. For these reasons, the state court in O’Brien applied a considerably less stringent requirement than the clear and present danger test. Presumably, the state court in the instant case relied on the same two distinctions.
IV. Discussion
If the state court’s failure to apply the more stringent standard to these facts was “contrary to, оr involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” then Petitioner’s contempt conviction must be vacated.
The first distinction drawn by the state court—that the letter addressed matters then under consideration by the appellate court—is clearly without merit. As discussed above, the Supreme Court in
Craig v. Harney
expressly applied the clear and present danger stаndard to speech about matters
then pending
before the court. Moreover, the speech in
Pennekamp v. State of Florida
and
Gentile v. State Bar of Nevada
was also about matters then pending before the Court. Therefore, the fact that Petitioner’s speech involved a matter still pending before the appellate court does not mean that the speech is not “related to those situations involving First Amendment guarantees.”
O’Brien,
The second distinction drawn by the O’Brien court—that the letter was sent directly to the judge by the defendant—is also unreasonable. Granted, the Supreme Court has not applied the clear and present danger test to an indistinguishable set of facts. The casеs cited above pertained to news reports about pending trials, to editorials critical of certain judges, and to an attorney’s public speech about a pending case, not to speech by an individual defendant. Nevertheless, whenever faced with out-of-court speech that is critical of the judiciary, the Supreme Court has been scrupulous in requiring a showing more substantial than that the speech “tended to” or was “calculated to” embarrass a judge. Therefore, the state court was unreasonable to apply this lesser standard to this set of facts.
Indeed, the language used by the Supreme Court in these First Amendment cases has been quite broad, and in no way infers that the holdings should be limited to their facts. As discussed, in
Gentile,
the Supreme Court firmly held that the attorney’s critical speech was “clаssic political speech” at the core of First Amendment protection.
Gentile,
This language in binding Supreme Court precedent clearly indiсates that the lenient standard applied by the state court is constitutionally insufficient to restrict out-of-court speech to or about a judicial officer. Therefore, the state court was unreasonable not to extend the standard announced in these Suрreme Court eases to Petitioner’s speech. As such, the conviction must be vacated as violative of Petitioner’s First Amendment rights.
CONCLUSION
In conclusion, for the foregoing reasons, it is
ORDERED AND ADJUDGED that Claims Two, Three, and Four of the Petition of James Wilson for Writ of Habeas Corpus (filed September 13, 1999) are DENIED. It is
FURTHER ORDERED that Claim One is GRANTED, and Petitioner’s Conviction for Contempt is VACATED.
Notes
. Specifically, the O’Brien court held: "While there may be some doubt as to whether the letter in question tends to obstruct or to interfere with the administration of justice there can be no question or doubt that the letter more than reasonably tended to degrade the court or the judge as a judicial officer.” Id. at 257