25-2121 Conduct constituting contempt; powers of court of record to punish. - Nebraska Statutes

25-2121. Conduct constituting contempt; powers of court of record to punish.Every court of record shall have power to punish by fine and imprisonment, or by either, as for criminal contempt, persons guilty of (1) disorderly, contemptuous, or insolent behavior towards the court, or any of its officers in its presence; (2) any breach of the peace, noise, or other disturbance tending to interrupt its proceedings; (3) willful disobedience of or resistance willfully offered to any lawful process or order of said court; (4) any willful attempt to obstruct the proceedings, or hinder the due administration of justice in any suit, proceedings, or process pending before the courts; or (5) contumacious and unlawful refusal to be sworn or affirmed as a witness, and when sworn or affirmed, refusal to answer any legal and proper interrogatory. SourceR.S.1867, Code § 669, p. 512; R.S.1913, § 8236; C.S.1922, § 9189; C.S.1929, § 20-2121; R.S.1943, § 25-2121.Annotations1. Grounds2. Procedure3. Punishment1. GroundsFor purposes of subsection (3) of this section, "willful" means the violation was committed intentionally, with knowledge that the act was in violation of the lawful process or court order. In re Contempt of Sileven, 219 Neb. 34, 361 N.W.2d 189 (1985); State v. Thalken, 2 Neb. App. 867, 516 N.W.2d 635 (1994).Disobedience of an injunction must be willful before a breach thereof is contempt. Paasch v. Brown, 199 Neb. 683, 260 N.W.2d 612 (1977).Question asked must be pertinent to issue in the case to justify conviction of contempt for refusal to answer question. Tastee Inn, Inc. v. Beatrice Foods Co., Inc., 167 Neb. 264, 92 N.W.2d 664 (1958).Conduct of bondsman hindered administration of justice. Cornett v. State, 155 Neb. 766, 53 N.W.2d 747 (1952).Willful disobedience of or resistance willfully offered to any lawful process or order of court constitutes criminal contempt. In re Application of Niklaus, 144 Neb. 503, 13 N.W.2d 655 (1944).False statements made to court by attorney in respect to substitution of page in pleading constituted criminal contempt. Butterfield v. State, 144 Neb. 388, 13 N.W.2d 572 (1944).Unless the disobedience of an order of court is willful, it is not contempt. Whipple v. Nelson, 138 Neb. 514, 293 N.W. 382 (1940).Supreme Court can punish, as contempt, contumacious refusal of witness to answer a legal and proper interrogatory propounded to him in hearing before referee in disbarment proceeding. State v. Degele, 137 Neb. 810, 291 N.W. 554 (1940).Where layman engages in the practice of "ambulance chasing," he is guilty of contempt of court. State ex rel. Wright v. Hinckle, 137 Neb. 735, 291 N.W. 68 (1940).Notary may commit a witness for contempt when, during taking of deposition, witness refuses to answer proper questions. Ehlers v. State, 133 Neb. 241, 274 N.W. 570 (1937).Former husband's failure to make payments for support of children as required by decree of divorce is not contumacious if due to lack of means and ability to procure means to pay such support money. Scott v. State, 132 Neb. 39, 270 N.W. 833 (1937).Willful disobedience of injunction order constituted contempt. McFry v. City of Lincoln, 127 Neb. 404, 255 N.W. 239 (1934).Obstructing sheriff in holding foreclosure sale was contempt of court. Lux v. State, 126 Neb. 133, 252 N.W. 897 (1934).Editorial relating to case pending on appeal to Supreme Court was contemptuous per se. State v. Lovell, 117 Neb. 710, 222 N.W. 625 (1929).Discussion of merits of case by juror with person outside of court was contempt. Rozean v. State, 109 Neb. 354, 191 N.W. 319 (1922).Abuse of freedom of the press relating to undetermined cases in court will sustain conviction of contempt. Bee Pub. Co. v. State, 107 Neb. 74, 185 N.W. 339 (1921).Reprehensible misconduct in open court is contempt. Aabel v. State, 86 Neb. 711, 126 N.W. 316 (1910).Section is merely confirmatory of common law power. State v. Rosewater, 60 Neb. 438, 83 N.W. 353 (1900); State v. Bee Pub. Co., 60 Neb. 282, 83 N.W. 204 (1900).Party may be guilty of contempt in disobeying erroneous order. Jenkins v. State, 59 Neb. 68, 80 N.W. 268 (1899).Power to punish for contempt is inherent in courts of common law jurisdiction regardless of statute. Nebraska Children's Home Soc. v. State, 57 Neb. 765, 78 N.W. 267 (1899).Failure to pay decree for alimony is not contempt per se. Leeder v. State, 55 Neb. 133, 75 N.W. 541 (1898); Segear v. Segear, 23 Neb. 306, 36 N.W. 536 (1888).Statement of grounds of objection to trial before presiding judge, if on good points, is not contempt. Le Hane v. State, 48 Neb. 105, 66 N.W. 1017 (1896).Attorney's refusal to practice before certain judge with statement of reasons, is not contempt. Hawes v. State, 46 Neb. 149, 64 N.W. 699 (1895).Publication regarding a cause during its pendency in court of an article which tends to embarrass administration of justice is a contempt. Percival v. State, 45 Neb. 741, 64 N.W. 221 (1895).Party ignoring alternative writ of mandamus may be guilty of contempt. McAleese v. State, 42 Neb. 886, 61 N.W. 88 (1894).Exception to charge of judge to grand jury for purpose of securing ruling thereon is not contempt. Clair v. State, 40 Neb. 534, 59 N.W. 118 (1894).The power to punish for contempt of court is inherent in every judicial tribunal. Rhodes v. Houston, 202 F.Supp. 624 (D. Neb. 1962).2. ProcedureWhere an affidavit is used to prosecute a contempt charge, failure to use the word "willful" is not fatal where the reading of the affidavit clearly indicates intentional disobedience. Sempek v. Sempek, 198 Neb. 300, 252 N.W.2d 284 (1977).The right of confrontation does not apply to criminal contempt proceedings and defendant's presence is not required if there have been suitable notice and adequate opportunity to appear and be heard. State v. Rhodes, 192 Neb. 557, 222 N.W.2d 837 (1974).Deposition of defendant can be taken in contempt proceeding. State ex rel. Beck v. Lush, 168 Neb. 367, 95 N.W.2d 695 (1959).Procedure to punish for violation of mandatory injunction is authorized. Meier v. Nelsen, 156 Neb. 666, 57 N.W.2d 273 (1953).Criminal contempts must be prosecuted by information in separate action by state. Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274 (1948).Conviction for contempt may be reviewed only on petition in error, as in criminal cases. Gentle v. Pantel Realty Co., 120 Neb. 630, 234 N.W. 574 (1931); State v. Dodd, 99 Neb. 800, 157 N.W. 1010 (1916).Formal complaint must be filed and opportunity given to defend, where evidence must be adduced to determine whether contempt has been committed. Gonzalez v. State, 119 Neb. 13, 226 N.W. 801 (1929).Without formal complaint, finding by court that party to civil action is guilty of contempt is insufficient to sustain conviction. Finegold v. State, 112 Neb. 64, 198 N.W. 572 (1924).Where offense is committed in court's presence, notice to accused is not essential. In re Dunn, 85 Neb. 606, 124 N.W. 120 (1909).Where act alleged is contempt per se, accused is not entitled to acquittal on mere denial. Emery v. State, 78 Neb. 547, 111 N.W. 374 (1907).Presumptions and intendments will not be indulged in to sustain convictions for contempt. Crites v. State, 74 Neb. 687, 105 N.W. 469 (1905).Disavowal of intent is receivable in extenuation. Mackay v. State, 60 Neb. 143, 82 N.W. 372 (1900).Proceedings in contempt, in their nature, are criminal. Boyd v. State, 19 Neb. 128, 26 N.W. 925 (1886).3. PunishmentThis section does not limit the court's inherent authority to impose sanctions in addition to those listed herein. Tyler v. Heywood, 258 Neb. 901, 607 N.W.2d 186 (2000).This section is a codification of the common law of contempt and does not supplant a court's inherent contempt powers. The fact that this section does not list attorney fees as punishment that a court of record may impose in a contempt proceeding does not necessarily prohibit the court from awarding attorney fees under certain circumstances. Attorney fees may also be recovered when a recognized and accepted uniform course of procedure allows recovery of an attorney fee. In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).Failure to support wife and child in violation of court order could be punished by contempt proceedings. State v. Pitzel, 181 Neb. 176, 147 N.W.2d 524 (1966).Information was sufficient hereunder; sentence of four months in county jail and one hundred dollars fine for attempt to bribe juror was sustained. Kopp v. State, 124 Neb. 363, 246 N.W. 718 (1933).Proceeding against party for contempt hereunder is in nature of criminal prosecution and governed by rules of construction applicable thereto; sentence of six months in county jail and two hundred fifty dollars fine for attempt to bribe juror was sustained. McCauley v. State, 124 Neb. 102, 245 N.W. 269 (1932).District court could punish disobedience of its lawful orders by fine or imprisonment, or both. Back v. State, 75 Neb. 603, 106 N.W. 787 (1906).Power to punish for contempt is conferred, not upon judges, but upon courts of record. Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995 (1892).