7. Examples of Contempt in Facie Curiae
The conduct may run the gamut from the obvious
frontal assault on the system, Ex parte Terry, 128 U.S.
289, 9 S.Ct. 77, 32 L.Ed. 405 (1888) (lawyer who
assaulted marshal); to the demeaning of the system, In re
Yengo, 84 N.J. at 127 (An attorney’s absence from court
in the middle of trial, coupled with an inadequate excuse,
constitutes contempt in the presence of the court); the
deception of the system, Kerr Steamship Co. v. Westoff,
204 N.J. Super. 300 (Law Div. 1985), aff’d as modified,
215 N.J. Super. 301 (App. Div. 1987) (witness who lied
blatantly before the court); the flouting of the system, In
re Carton, 48 N.J. 9 (1966) (lawyer who disobeyed a
lawful court order); and degrading the system by insult
to the court, In re Daniels, 118 N.J. at 67 (Attorney’s
mocking gestures, including laughing, rolling his head,
and throwing himself into the back of his seat in response
to the court’s rulings constituted contempt in facie
curiae); In re DeMarco, 224 N.J. Super. 105, 121-22
(App. Div. 1988) (Contempt was warranted by an
attorney’s pattern of abusive behavior directed at the trial
judge that exceeded the bounds of colloquy and
constituted rude, uncalled-for attacks upon the
objectivity and integrity of the judge, thus disrupting
trial proceedings).
Defendant’s nonappearance for sentencing on
criminal charges does not warrant an adjudication of
contempt in facie curiae when he or she was not afforded
an opportunity to explain the absence. State v. Quintana,
270 N.J. Super. at 683.
8. Maximum Penalties
Punitive contempt is punishable by not more than
six months in jail or a fine of $1,000 or both. In re Yengo,
84 N.J. at 121 (citing In re Buehrer 50 N.J. at 516).
B. Contempt Outside the Presence of the Court
1. Definition
An act committed not in the presence of the court,
but at some distance therefrom. In re Yengo, 84 N.J. at
123 (citing In re Bozorth, 38 N.J. Super. 184, 188-89
(Ch. Div. 1955).
2. Rules Governing Contempt Outside the Presence of the Court
A proceeding to punish for contempt other than
proceedings under R. 1:10-1 shall be on notice and
instituted only by the court upon an order for arrest or an
order to show cause specifying the acts or omissions
alleged to have been contumacious. The contemnor shall
be released on his or her own recognizance pending the
hearing unless the judge determines that bail is
reasonably necessary to assure appearance, and the matter
shall not be heard by the judge who instituted the
prosecution if the appearance of objectivity requires trial
by another judge. R. 1:10-2When the contempt is not in open court the
contemnor shall be advised of the charges against him or
her, have a reasonable opportunity to meet them by way
of defense or explanation, have the right to be represented
by counsel, and have a chance to testify and call other
witnesses in his or her behalf. Matter of Daniels, 219 N.J.
Super. 550, 580 (App. Div. 1987), aff’d 118 N.J. 51 cert.
denied, 498 U.S. 951 (1990).When the result of a contemptuous act committed
outside the presence of the court reflects upon the
integrity of a judge, such judge should disqualify himself
or herself from hearing the contempt proceeding. Matter
of Daniels, 118 N.J. at 68; Van Sweringen v. Van
Sweringen, 22 N.J. 440, 447 (1956).3. Examples of Contempt Outside the Presence of the Court
An attorney’s attempt to introduce a defense witness
in the middle of a murder trial, when she had failed to
supply a witness list to the court or State, did not warrant
a contempt proceeding under R. 1:10-1 since the
attorney’s explanation had some “semblance of
adequacy.” In re Lependorf, 212 N.J. Super. 284, 290
(App. Div. 1986) (citing In re Yengo, 84 N.J. at 127).
The proper procedure is to conduct a contempt hearing
under R. 1:10-2 after defendant’s trial and before a
different judge where the attorney presents witnesses. In
re Lependorf, 212 N.J. Super. at 293.Defendant’s statement that he did not intend to
comply with an order to testify at some future time did
not warrant a charge of contempt. In re Matos, 273 N.J.
Super. 6, 17 (App. Div. 1994). Under N.J.S.A. 2A:81-
17.3 there must be a “criminal proceeding before a court
or grand jury” and the person must refuse “to answer a
question” before that person may be held in contempt.
Id. at 18.