Saturday, February 6, 2016

Virgin Islands Supreme Court: Advocacy 1, Contempt 0

The Virgin Islands Supreme Court has reversed an order finding an attorney in contempt of court.

The attorney represented a mother whose children had been taken from her and was trying to get them back. The purported contempt came when the judge suggested that the attorney's client should readily submit to counseling.

The problem started when the judge 

observ[ed] that “it seems so simple, just do the counseling.” (J.A. 64.) When [attorney] Walker was permitted to respond, the following dialogue ensued, as is reflected in the hearing transcript:

WALKER: I also take issue with the Court’s comment that it is very easy for [the mother] to attend these family sessions. She attended three sessions, one was on the phone, two were in person, and I believe two of them were with M.R. and [the counselor]. I think it’s easy for people to sit in this room and pass judgment on [the mother], and sit on the bench and drive a government car and remark as to what is easy for [the mother] to do. [The mother] is –

THE COURT: Attorney Walker –

WALKER: If I may be heard.

THE COURT: Attorney Walker, no, you may not be heard. Can you remove her from here right now.

(Thereupon, Attorney Walker returned to her seat at counsel table.)

THE COURT: Attorney Walker, I’d like you – for you to leave, please. You are being disrespectful to the Court.

WALKER: I’m not being disrespectful to the Court. You’re making remarks about my client that have nothing to do with the facts that have been made. For the Court to sit there and say that it’s easy –

THE COURT: Oh, marshal, please remove her.

WALKER: Not a problem.

THE COURT: I don’t know what car the Court drives has to do with this case. I just don’t understand. It’s very unprofessional and unnecessary.

WALKER: Then I have to file a motion to recuse you because you’re making comments about my client that are not in evidence.

(Thereupon, Attorney Walker was escorted out of the courtroom.)

The hearing resumed without counsel. Contempt proceedings were initiated later that day.

The court here

In its May 21, 2015 opinion, the Superior Court concluded that Walker obstructed the administration of justice by “arguing with the court in aggravated and elevated tones” and “by personally criticizing a judge in open court.” In re M.R., 62 V.I. at 408. We conclude that neither of these purported acts constitutes the obstruction of the administration of justice in this case...

First, we note that the transcript of the May 8, 2013 hearing, as prepared by the court reporter, does not reflect that Walker argued with the judge. Rather, it indicates that Walker immediately stopped speaking when the judge interrupted her, did not resume speaking again until the judge finished her remarks, ceased speaking when the judge interrupted her a second time, and then left the courtroom with the marshal when instructed to do so. (J.A. 72-73.) Although the record reflects that Walker denied the Superior Court’s charge that she was being disrespectful, merely objecting to or disagreeing with a judge and succinctly stating the reasons for the objection—without more, such as interrupting the judge or using profane language—cannot form the basis for a criminal contempt sanction..


The remark that the Superior Court characterizes as “criticizing a judge” also cannot constitute an obstruction to the administration of justice in this instance. To be sure, Walker’s remark that it is “easy for people to . . . sit on the bench and drive a government car and remark as to what is easy for [the mother] to do,” (J.A. 72), may well have offended the judge. However, the record contains no evidence that this comment was so disruptive that it posed “an imminent threat to the administration of justice” so as to justify “the offended judge being judge, jury and executioner.”

...Walker’s remark squarely constitutes zealous—although in this case, ineffective—advocacy that cannot form the basis for a criminal contempt conviction.

Indeed the problem lay elsewhere

In this case, to the extent any disruption occurred, it is attributable not to Walker, but to the Superior Court’s reaction to her advocacy. An attorney has the right to make a good-faith legal argument that a judge does not approve of in presenting his or her client’s case to a court. McConnell, 370 U.S. at 236. We can find no justification for the Superior Court to respond to Walker’s fleeting remark by ordering her immediate removal from the courtroom, leaving her client unrepresented in a quasi-criminal proceeding in which her fundamental liberty interest in the care, custody, and control of her children was at stake. See Troxel v. Granville, 530 U.S. 57, 65 (2000); In re R.S.N., 706 N.W.2d 705, 708 (Iowa 2005) (holding indigent parents are entitled to court-appointed counsel in involuntary termination of parent rights proceedings); In re Guardianship of Dotson, 367 A.2d 1160, 1163 (N.J. 1976) (“While it is denominated a civil matter, it is almost quasi-criminal in nature, since it seeks to terminate for cause all parental ties between the children here involved and their natural parents. . . . As such, it is deserving of special treatment.”); Particia C. Kussmann, Right of Indigent Parent to Appointed Counsel in Proceeding for Involuntary Termination of Parental Rights, 92 A.L.R.5th 379 (2001) (collecting cases). Thus, the Superior Court abused its discretion when it found Walker in criminal contempt to the extent the sanction is predicated on a finding that she obstructed the administration of justice...

In this case, Walker alleged—both orally and in writing— that the judge should recuse herself because criticism of that very judge formed the basis for the contempt charge, meaning that “the alleged victim” would simultaneously serve as “the investigator, the prosecutor, [and] the fact finder.”


Attorneys possess an obligation to advocate zealously for their clients, in good faith within the bounds of the law. On some occasions, this may entail making an argument that displeases a judge, or that a judge interprets—rightly or wrongly—as criticism. In this case, the Superior Court perceived as criticism what an attorney likely intended as advocacy, and imposed the severe sanction of criminal contempt. In doing so, it ignored the maxim that “the law gives [judges] as persons, or courts as institutions . . . no greater immunity from criticism than other persons or institutions.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978). Accordingly, we reverse the Superior Court’s May 21, 2015 opinion and order adjudicating Walker in criminal contempt.

The court expressed the view that recusal is appropriate where the judge is the "victim" of the contempt.


The judge took the bench in 2013.  (Mike Frisch)

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