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Attorney Was In Criminal Contempt For Taping Proceedings Without Judge’s OK

Posted on Wednesday, November 4, 2020

A Bingham Farms attorney was properly held in criminal contempt for taping trial court proceedings without first obtaining the judge’s permission, the Michigan Court of Appeals has ruled.

39th District Court Judge Marco Santia found attorney Nicholas Somberg in criminal contempt after Somberg directed one of his associates to tape court proceedings without first asking the judge for approval. Judge Santia held that Somberg had “willfully” violated Michigan Supreme Court Administrative Order (AO) 1989-1, which requires that persons seeking to film court proceedings submit a request to the judge hearing the case before recording.

The contempt finding was upheld at a hearing before 39th District Court Chief Judge Joseph Boedeker and Somberg was fined $100. On appeal, the Macomb County Circuit Court affirmed the district court’s decision.

Somberg appealed again, arguing Judge Boedeker had abused his discretion and the trial courts had erred.

The Court of Appeals disagreed in In re Contempt of Somberg (Docket No. 344041).

“In sum, it was within the lower court’s power to hold appellant in contempt for a willful disregard of a court order,” the Court of Appeals wrote. “The contempt was committed in the immediate view of Judge Santia, and he stated that he intended to hold appellant in contempt but deferred the ultimate decision whether to hold appellant in contempt to Judge Boedeker. Judge Boedeker agreed with Judge Santia that appellant’s conduct was contemptuous, and held appellant in contempt, fining him $100.”

Judges Michael F. Gadola, Amy Ronayne Krause and Colleen A. O’Brien were on the panel that issued the unpublished opinion.

Criminal Contempt

In its opinion, the Court of Appeals first noted that criminal contempt is intended to punish a person’s wrongful conduct which, in this case, was Somberg’s failure to get permission to record court proceedings and therefore violating AO 1989-1.

Somberg “does not seriously dispute that the court had the power to hold him in contempt for violating a court order, but instead argues that the court’s exercise of its power in this instance was error,” the Court of Appeals explained, noting there was no dispute that Somberg had an associate record court proceedings.

On appeal, Somberg presented two main argument. “First, [Somberg] argues that his violation of AO 1989-1 was not ‘willful’ as required to hold him in contempt,” the Court of Appeals said. “Second, [Somberg] argues that his conduct did not ‘alter[] the status quo of the court room,’ which he contends is also necessary for a court to hold someone in contempt. Because [Somberg] was found to be in criminal contempt, the contempt must be proven beyond a reasonable doubt.”

Somberg asserted that his violation of AO 1989-1 could not have been willful because he did not know he was violating AO 1989-1 by filming the proceedings in front of Judge Santia without the judge’s permission. “Appellant seems to believe that this Court must accept as fact his assertion that he did not knowingly violate AO 1989-1,” the Court of Appeals said. “This is incorrect. Judge Santia was face-to-face with appellant when he violated AO 1989-1 and stated that he was not aware of AO 1989-1’s requirements. Judge Santia could choose whether or not to believe appellant’s statements. After Judge Santia heard appellant’s voice and saw his demeanor, the judge (1) determined that appellant’s statements that he did not knowingly violate AO 1989-1 were not credible and (2) stated that he intended to charge appellant with contempt and scheduled a hearing in front of Judge Boedeker.”

Regarding the hearing before Judge Boedeker, the Court of Appeals observed that Somberg did not testify but instead made a statement to the judge during which he indicated that he did not know he was violating AO 1989-1. “While Judge Boedeker was understanding of [Somberg’s] position that he did not knowingly violate AO 1989-1, Judge Boedeker noted that [Somberg], as an attorney, was generally aware of the court rules governing his behavior, and so he agreed with Judge Santia’s assessment that [Somberg’s] conduct of violating AO 1989-1 was contemptuous. That is, Judge Boedeker implicitly determined that [Somberg] willfully violated AO 1989-1, despite [his] statements to the contrary. As an appellate court, we defer to credibility determinations made by lower courts that had the opportunity to see and hear the witnesses.”

In light of the fact that Somberg is an attorney and is generally familiar with the rules governing the courts and Judge Boedeker’s determination that Somberg was not credible when he said that he did not knowingly violate AO 1989-1, “we conclude that Judge Boedeker’s finding beyond a reasonable doubt that appellant willfully violated AO 1989-1 was not clearly erroneous,” the Court of Appeals said.

Addressing whether the “status quo of the courtroom” was altered, the Court of Appeals explained that media outlets were covering the hearing and had obtained the necessary permission under AO 1989-1 to record the proceedings.

“However, unlike the media outlets, [Somberg] had not requested Judge Santia’s permission to film as required by AO 1989-1,” the Court of Appeals wrote. “When Judge Santia found out that [Somberg] had already filmed the proceedings without permission, the status quo of Judge Santia’s courtroom was altered; before, only persons who had received Judge Santia’s permission as required by AO 1989-1 were filming the proceedings, but now appellant had done so without permission. Because appellant had already filmed the proceedings without permission, there was no way to restore the status quo. That is, appellant’s conduct altered the status quo so that it could not be restored. Thus, criminal contempt was appropriate, and Judge Boedeker did not err by so finding.”

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