The fabric of our society depends on respect for the law and cooperation with the judicial branch of government. One of the most important responsibilities is the duty to obey an order to appear in court or comply with a subpoena summoning a witness to appear. “Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.” Fla. R. Civ. P. 1.410(f). The absentee can even be held in criminal contempt.
That is what happened to a man who failed to show up at a hearing where the judge had ordered him to appear in a divorce case. The court held the husband both in civil contempt and direct criminal contempt. But in the husband’s appeal to Florida’s First District Court of Appeal, the State of Florida was joined as an indispensable party and it recommended that the failure to appear in court should be treated as indirect, rather than direct, criminal contempt. Although the First District concluded that the evidence was insufficient to establish criminal contempt against the husband because there was no evidence that he knowingly failed to attend the hearing without an excuse, the First District held that the failure to appear constituted direct criminal contempt.
However, the First District also certified a question of great public importance so that the husband could ask the Florida Supreme Court to resolve the issue of whether a party who is ordered by a court to appear at a scheduled hearing, but fails to appear, may be found in direct criminal contempt under Florida Rule of Criminal Procedure 3.830, or whether such conduct should be addressed as indirect criminal contempt under Florida Rule of Criminal Procedure 3.840.
Why would that distinction matter? Because direct contempt occurs in the immediate presence of the judge, whereas indirect contempt occurs outside of the courtroom and greater procedural due process safeguards must be afforded before a conviction and punishment. It stands to reason that fewer procedural protections would be needed to find the person guilty if the judge personally and directly saw or heard the misconduct. There was some confusion as to where the misconduct occurs in a case of absenteeism. Does the misconduct of failing to appear occur directly within the court’s presence (because the court can see that the person is not present), or does the violation actually occur outside of the court such as when the person determines in his own mind that he will not appear and decides not to get in the car and drive to the courthouse?
The Florida Supreme Court accepted jurisdiction to review the case based on the certified question of great public importance. It noted that the district courts of appeal had issued opinions on both sides of the issue, and one of its own prior opinions had approved a decision holding an absentee in direct criminal contempt as if the violation occurred in the immediate presence of the judge.
In November 2015, the Florida Supreme Court receded from its 1972 opinion and held that when a failure to appear results in criminal contempt proceedings, a charge of indirect criminal contempt is applicable. By contrast, direct criminal contempt usually applies to direct affronts to the judge that disrupt and frustrate an ongoing proceeding and require immediate action to vindicate the judge’s authority in the courtroom. That situation would not apply when a person is absent. The violation actually occurs outside of the judge’s presence.
Because the Supreme Court held that indirect criminal contempt would apply, the procedural protections of Florida Rule of Criminal Procedure 3.840 must be afforded and the trial court would have to conduct a hearing at a later date when the alleged contemnor is present. The Supreme Court explained that, in spite of being able to see that an individual was absent, “the trial court may not have personal knowledge with respect to whether an individual knew that his or her presence was required, or whether the individual was somehow unable to appear, and therefore could not know whether the nonappearance was willful.” See State v. Diaz de la Portilla, 177 So. 3d 965, 973 (Fla. 2015). Although greater procedural protections apply under the Supreme Court’s recent decision, it remains critically important to comply with subpoenas and orders to appear in court.