Appeals Court Reverses Attorney’s Criminal Contempt Conviction

An order holding an attorney in criminal contempt must be reversed, the Michigan Court of Appeals has ruled, finding that the attorney’s due process rights were violated and there was insufficient evidence to support the charges.

The case of In re Guardianship of JO and Contempt of Gerald Zamborowski (Docket No. 376883) involved alleged misrepresentations made by attorney Gerald Zamborowski during guardianship proceedings in the St. Clair County Probate Court. On April 14, 2025, Adult Protective Services filed a petition to appoint a guardian for Zamborowski’s former client, JO, and the probate court appointed a guardian ad litem (GAL) that same day. A hearing was scheduled for April 16, 2025. In the meantime, JO told the GAL that he wanted to contest her appointment. As a result, on April 16, 2025, Zamborowski filed both an appearance indicating that he had been retained by JO and a jury demand.

However, the probate court questioned whether Zamborowski had actually spoken with JO before filing his appearance and the jury demand. Ultimately, St. Clair County Probate Judge John D. Tomlinson concluded that Zamborowski had made misrepresentations and held him in criminal contempt.

Zamborowski appealed, arguing:

• there was insufficient evidence to support the finding of criminal contempt.

• the probate court violated his due process right to notice of the contempt charges and their factual bases, thereby depriving him of an opportunity to prepare a defense.

• the probate court’s comments and conduct throughout the contempt and underlying guardianship proceedings demonstrated actual and apparent bias, and therefore any future contempt proceedings should be adjudicated by a different probate court judge.

The Court of Appeals agreed with Zamborowski.

First, whether Zamborowski was not truthful with the probate court “depended upon facts outside the personal knowledge of the trial court[,]” the Court of Appeals said. “[T]herefore, Zamborowski could not be punished so summarily, based solely upon an alleged misstatement made in court.”

Second, Zamborowski “was not given notice of the charges against him in a manner consistent with due process, which under MCL 600.1711(2) and MCR 3.606(A) requires some form of proof of the facts charged such that the alleged contemnor has an opportunity to mount a defense,” the Court of Appeals said.

And third, “the judge presiding over this case has an extensive history with Zamborowski,” the Court of Appeals observed. “On a number of occasions, the trial court’s own words appear to indicate this shared history continues to color interactions between them. … These remarks suggest that the trial court would have difficulty putting aside its previously expressed views, and we believe the appearance of justice would be better served by remanding Zamborowski’s ongoing contempt proceedings to a different judge.”

Judge Michael F. Gadola, Judge Christopher M. Murray and Judge Michael J. Kelly were on the Court of Appeals panel that issued the unpublished opinion.

Additional Facts

At the June 16, 2025 hearing on the underlying guardianship petition, the probate court expressed concerns about Zamborowski’s conduct. In particular, the probate court said it believed Zamborowski had, similar to the filing of his appearance, filed JO’s jury demand without first consulting with JO. As a result, the probate court entered an order that prohibited Zamborowski from contacting JO about the jury demand except through JO’s court-appointed GAL. Several weeks later, the GAL determined that JO did in fact want a jury trial, and the prohibition was lifted.

At a July 2, 2025 evidentiary hearing on Zamborowski’s alleged contempt, the probate court emphasized its concern about his “premature representation” of JO. At this hearing, the probate court also pointed to Zamborowski’s filing of the jury demand. Zamborowski explained to the probate court that the transcript from the April 16, 2025 hearing showed the first count of criminal contempt was related to his filing of an appearance, and not his filing of a jury demand. According to Zamborowski, the former concern was predicated on “a misunderstanding about what he meant on April 16, 2025, when he said that he had not yet met with or discussed the case with JO.” Zamborowski explained that he “meant only to say that he had not had a chance to sit down and discuss the petition with JO, although [he] was told by JO over the phone that JO had just been ‘served with something.’”

Claire Nowak, who was JO’s caregiver, testified that she was with JO when he was served the petition and that she had called Zamborowski to retain him. Zamborowski introduced his phone records into evidence, which showed two calls made to a number he testified belonged to JO. A third call was then placed to the probate court a few minutes later, which appeared to indicate that he contacted the probate court to make his appearance after speaking with JO.

Ultimately, the probate court found the evidence unpersuasive and held Zamborowski in criminal contempt.

Zamborowski appealed.

Insufficient Evidence Of Contempt

On appeal, Zamborowski first argued there was insufficient evidence to support the finding of criminal contempt.

“We agree,” the Court of Appeals said, citing MCL 600.1711(1). This statute says that a trial court may summarily punish contempt that is committed “in the immediate view and presence of the court.”

Meanwhile, the elements required “to support criminal contempt are (1) a wilful disregard or disobedience of the order of the court, and (2) that the contempt is clearly and unequivocally shown,” the Court of Appeals explained.

Here, at the outset of Zamborowski’s evidentiary hearing, the probate court “expressly stated that the sole evidentiary basis for its accusation was that Zamborowski appeared to have admitted filing an appearance and jury demand before speaking with his client …,” the Court of Appeals said. Moreover, at the conclusion of that hearing, the probate court’s factual findings “were no more substantial. The trial court began by, again, pointing to Zamborowski’s contradictory statements during the April 16, 2025 hearing. The trial court then seemed to suggest that Zamborowski’s contradiction was an accidental confession because ‘other people could contact Mr. Zamborowski and say here’s what’s going on.’ (Emphasis added.)”

Next, the Court of Appeals pointed out that, at the April 16, 2025 hearing, Zamborowski said that he “’did not have a conversation with [JO] about this since he received the papers. I got them this morning.’ Zamborowski’s statement, ‘I got them this morning,’ is consistent with the explanation he would later offer: When he said he had not yet had a conversation with JO, Zamborowski meant only that he had not sat down with JO to discuss the petition because Zamborowski did not have the petition itself until the morning of April 16, 2025.”

According to the Court of Appeals, Zamborowski “consistently maintained that he did in fact speak with JO before filing an appearance and jury demand. To support that claim, Zamborowski pointed out that he could not have known the case number – or that there even was a guardianship case involving JO – if he had not spoken with JO before filing an appearance and jury demand. Zamborowski also presented the witness testimony of Nowak. And although the trial court appears not to have found Nowak’s testimony particularly credible, Zamborowski produced phone records that corroborated Nowak’s testimony and supported his version of events. But the trial court dismissed the phone records out of hand and reemphasized Zamborowski’s alleged misrepresentations ….”

The probate court “cited no evidence that Zamborowski’s statement was inconsistent with the explanation he provided,” the Court of Appeals observed. “Zamborowski, on the other hand, provided an explanation for the statement that concerned the court and supported that explanation with witness testimony and documentary evidence. The trial court’s only rebuttal was to speculate about an alternative scenario in which Zamborowski was contacted by either Nowak or her husband about the case; however, the trial court cited no evidence to support that claim. Rather, the trial court simply repeated the one piece of evidence it believed it had.”

As a result, Zamborowski “could not be punished so summarily, based solely upon an alleged misstatement made in court,” the Court of Appeals held. “Self-contradiction alone cannot be a basis for the exercise of a power our [Michigan] Supreme Court has deemed ‘awesome’ and to be used ‘with the utmost restraint.’”

Due Process Violation

The Court of Appeals continued by addressing Zamborowski’s assertion that the probate court violated his due process right to notice of the contempt charges and their factual bases, thereby depriving him of an opportunity to prepare a defense.

“We agree,” the Court of Appeals said, referencing MCR 3.606(A) and MCL 600.1711(2).

Under MCR 3.606(A), “[f]or a contempt committed outside the immediate view and presence of the court, on a proper showing on ex parte motion supported by affidavits, the court shall either (1) order the accused person to show cause, at a reasonable time specified in the order, why that person should not be punished for the alleged misconduct; or (2) issue a bench warrant for the arrest of the person,” the Court of Appeals explained. Meanwhile, MCL 600.1711(2) “provides that ‘[w]hen any contempt is committed other than in the immediate view and presence of the court, the court may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by affidavit or other method and opportunity has been given to defend.’ (Emphasis added).”

In this case, “[n]o such proof in conformity with the requirements of MCL 600.1711(2) – whether by affidavit or otherwise – appears in the lower court file,” the Court of Appeals said, noting that Zamborowski filed a motion for a bill of particulars on April 30, 2025, requesting the probate court state “the exact number of alleged misrepresentations made in the April 16 hearing and the content of each statement verbatem [sic].” However, Zamborowski’s motion “was not discussed during the May 7, 2025 show-cause hearing. Indeed, the trial court would not decide that motion until July 7, 2025, denying the motion five days after the hearing during which the trial court found Zamborowski in criminal contempt.”

According to the Court of Appeals, “Notably absent are any concerns about the circumstances under which Zamborowski filed a jury demand on behalf of JO. That issue was brought up for the first time during a June 16, 2025 hearing on the underlying guardianship petition. And although Zamborowski attempted to address the jury demand issue in his July 2, 2025 motion to dismiss – again suggesting at least some awareness of the nature of the charge against him – he did so without the benefit of being provided any form of proof of the facts charged beforehand, having only the trial court’s June 16, 2025 in court statements as notice of the charged conduct. Ultimately, the jury demand issue, which the trial court referenced when making its ruling, appears to have at least factored into the trial court’s final decision to hold Zamborowski in contempt.”

Based on the foregoing, “Zamborowski was not given notice of the charges against him in a manner consistent with due process, which under MCL 600.1711(2) and MCR 3.606(A) requires some form of proof of the facts charged such that the alleged contemnor has an opportunity to mount a defense,” the Court of Appeals held.

Different Judge Required

The Court of Appeals also agreed with Zamborowski that a different judge should adjudicate any future contempt proceedings.

In support of its decision, the Court of Appeals cited MCR 2.003(C)(1)(a), which requires disqualification of a judge when the judge demonstrates bias or prejudice against a party or attorney. “When considering whether to remand to a new judge, the ‘general concern … is whether the appearance of justice will be better served if another judge presides over the case.’ … However, we will not remand to a different judge just because the original judge reached incorrect legal conclusions, and repeated rulings against a party – no matter how erroneous or vigorously expressed – are not disqualifying.”

Although the probate court’s “words and conduct [did] not establish actual bias or prejudice against Zamborowski,” the Court of Appeals explained, “the judge presiding over this case has an extensive history” with Zamborowski. In fact, “[o]n a number of occasions, the trial court’s own words appear to indicate this shared history continues to color interactions between them,” the appeals court said. “On one occasion, the trial court cautioned parties – outside the presence of Zamborowski – that anyone taking suggestions from Zamborowski was ‘running the risk that I am going to paint you with the same brush.’ On another occasion, the trial court stated that Zamborowski has given him the ‘lasting impression’ that Zamborowski’s judgment is a cause for concern.”

Because these remarks suggest the probate court “would have difficulty putting aside its previously expressed views,” the Court of Appeals held that “the appearance of justice would be better served by remanding Zamborowski’s ongoing contempt proceedings to a different judge.”

Meanwhile, the Court of Appeals rejected Zamborowski’s claim that the probate court wrongly kept him from communicating with JO about the jury trial demand, except through the court-appointed GAL. “The extremely limited scope and duration of the no-contact order suggests that the trial court took great care when balancing JO’s rights to counsel and trial by jury with the trial court’s interest in ensuring that the proceedings were conducted within the ethical standards of the profession and appeared fair to all who observed them,” the appeals court said, declining to vacate the probate court’s orders in this regard.

“We remand to the trial court to vacate the judgment of contempt and dismiss,” the Court of Appeals concluded. “We further … order that any additional contempt proceedings stemming from this matter, to include two show cause orders encompassing three additional bases for possible contempt of court, be adjudicated by a different trial court judge.”