The Bully Pulpit And The Blind Spot

The South Carolina Supreme Court affirmed the reversal of a criminal contempt imposed on an attorney

In 2019, attorney Lauren Martel represented the mother in a child custody dispute. A family court judge held Martel in criminal contempt following a contentious exchange during a hearing. Martel filed a notice of appeal and served it on the family court judge, the Beaufort County Clerk of Court, and the court of appeals.

The Attorney General was not served but learned of it from an "unidentified source"

The State argued the appeal should be dismissed because Martel failed to serve her notice of appeal on the State through the Attorney General. The court of appeals held it had appellate jurisdiction and reversed the contempt order on the merits. The State filed a petition for a writ of certiorari concerning only the appellate jurisdiction issue, and this Court granted the petition. Therefore, the sole issue before this Court is whether Martel's failure to serve her notice of appeal on the Attorney General deprived the court of appeals of appellate jurisdiction.

Result

The State cites several appellate decisions in its brief in which the State was not served with a notice of appeal from a criminal contempt conviction. The State notes these cases "have slipped through the cracks over the past two decades." The State also maintains Martel's appeal has "exposed a troubling blind spot in South Carolina law." To remove this "blind spot," we clarify that in cases governed by Rule 203, a notice of appeal from a criminal contempt conviction imposed on or after the date of this opinion must be served on the Attorney General. The deadline for the service of the notice of appeal shall be dictated by the type of court from which the appeal arises, as outlined in Rule 203(b)(1)-(6), SCACR. Martel's case is unaffected by our decision.

The Court of Appeals decision is linked here

This case involves a family court judge's direct contempt citation against Appellant, attorney Lauren Martel. Martel argues the family court erred in finding her in criminal contempt at a hearing in which the judge's impartiality and temperament were questioned. We agree, and we reverse the finding of contempt.

A contentious hearing

From the outset of the January 15 hearing, the atmosphere was tense and combative—there was confusion about which orders the parties were discussing, the family court judge and attorneys talked over each other multiple times, and the family court referenced a constitutional provision that neither party raised and had no relevance to the family court matter. Although the family court judge initially properly cautioned the attorneys and parties about "order and decorum," the judge's own behavior during the proceeding was concerning. In addressing Mother's motion to recuse, the family court discussed Martel's and Mother's affidavits at length and vehemently and intemperately denied all allegations set forth in the affidavits. After this heated discussion, Martel asked for a break to regain her composure, and the family court summarily denied her request. However, the court did grant Martel's subsequent request for a bathroom break.

Following this recess, the judge called Mother to the stand and essentially cross-examined her about the allegations set forth in Mother's affidavit, interrupting the witness multiple times as she attempted to answer the court's questions. Six pages in to the court's questioning, the judge asked Mother, "Now, what other reasons do you believe—what other facts do you have that would indicate I wouldn't be fair?" Mother responded, "The—just the way you're acting right now," noting the court's bullying behavior.

The attorneys then questioned Mother about her affidavit. When Mother stepped down from the witness stand after Father's attorney questioned her, she commented, "Again, bullying." The judge responded by asserting Mother had alleged he was a bully but had "offered no proof of that." The court advised Mother he was considering holding her in contempt, noting, "You have to follow the rules. This is a court of law." The judge then turned to Martel, stating, "That goes for you too, please. Now, I'm gonna call you to the stand."

The court on the purported contempt

We find that when Martel expressed concern that she might need an attorney or that the Rules of Professional Conduct might bar her from acting as a witness in her client's case, the family court should have given her the opportunity to seek counsel and consider whether she was able to properly obey the court's demands. While Martel's own behavior during this proceeding certainly was not perfect, our review of the transcript reveals the behavior of the family court judge was vastly more problematic.

(Mike Frisch)