PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Carrico, S.J.
CLAUDE M. SCIALDONE
v. Record No. 090303
COMMONWEALTH OF VIRGINIA OPINION BY
JUSTICE CYNTHIA D. KINSER
BARRY R. TAYLOR, ET AL. FEBRUARY 25, 2010
v. Record No. 090305
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
These appeals arise from a judgment of the Circuit Court of
the City of Virginia Beach summarily holding Claude M.
Scialdone, Barry R. Taylor, and Edward S. Jones (collectively,
the defendants) in contempt pursuant to Code § 18.2-456. 1
Contrary to the holding of the Court of Appeals of Virginia, we
conclude that the defendants preserved for appeal their argument
that the circuit court deprived them of their due process rights
by conducting a summary contempt proceeding. We also conclude
that all the essential elements of the alleged contemptible
conduct did not occur in the presence of the circuit court and
that the defendants were, therefore, entitled to the due process
rights associated with a plenary proceeding. Thus, we will
reverse the judgment of the Court of Appeals.
1
By order dated June 17, 2009, the Court consolidated these
appeals.
I. RELEVANT FACTS AND PROCEEDINGS
The events leading to the circuit court's finding of
contempt occurred during a felony jury trial in which Scialdone
and Taylor, law partners, represented a client charged with
various offenses stemming from his conduct in an internet chat
room with a police officer posing as a minor. Scialdone
appeared as lead counsel at trial, and Jones assisted as a law
student clerking in Scialdone and Taylor's law office.
On July 12, 2006, during the criminal trial, Scialdone
attempted to introduce into evidence a document purporting to be
the rules pertaining to the use of a "Yahoo!" internet chat room
(Document 1). The Yahoo username appearing near the top of the
page was "westisanazi." 2 Based on the Commonwealth's objection,
the circuit court refused to admit the document into evidence
because it contained a copyright date of 2006 and a print date
of July 11, 2006, while the alleged crimes had occurred in 2005.
The circuit court instructed Scialdone that only the rules as
they existed at the time of the alleged offenses would be
admissible.
A short time later, Scialdone again referenced the rules of
the chat room and offered into evidence another document setting
forth the chat room rules (Document 2). The circuit court noted
2
Judge Patricia L. West presided over the criminal trial.
2
that Document 2 looked exactly the same as Document 1, except
Document 2 had no copyright or print date on the bottom of the
page. Document 2 also bore a different Yahoo username:
"wndydpooh." When the court inquired as to the document's
authenticity, both Scialdone and his client stated that the
client's father had printed it shortly after his son's 2005
arrest. The court expressed concern that Document 2 appeared as
though someone had "white[d] out" the copyright and print date
on Document 1 and then copied the page.
Scialdone then called his client's father to testify, out
of the presence of the jury, to establish that he had given
Scialdone Document 2. The witness testified that within two
weeks of his son's arrest and with the assistance of another
family member, he printed the Yahoo chat room rules and
delivered them to Scialdone's law partner. According to the
witness, the document he provided bore the username of his wife:
"pdulyea."
That testimony prompted the circuit court to inquire who
"wndydpooh" was and to ask Scialdone the name of his secretary.
Scialdone replied that her name was "Wendy [Suttlage]." The
court then stated, "Yeah. That's what I thought. Get her over
here." The court directed Scialdone to instruct both Suttlage
and Taylor to come to the courtroom and to refrain from talking
with either of them or "explain[ing] anything else."
3
When Suttlage and Taylor arrived, the circuit court
instructed Taylor to wait in the hall while it questioned
Suttlage under oath. In response to the court's questioning,
Suttlage testified that her Yahoo username was "[w]ndydpooh" and
that she had printed off the Yahoo chat room rules the previous
weekend but had no knowledge of any alteration of a document.
The circuit court then instructed Suttlage to leave the
courtroom and called Taylor to testify under oath.
Taylor stated that, when asked earlier that day to search
for the chat room rules, he found Document 2 in the conference
room of the law office and gave it to Scialdone. Taylor
testified that he believed the client had brought Document 2 to
the law office. Taylor denied altering Document 2 or knowing of
its alteration.
At that point, the circuit court stated:
One of you – one of the three of you, I guess – Mr.
Jones, you're in this too – is going to come clean
about this. And I expect it to be done if you all –
I'm trying to think if there are any other questions I
need to ask. You all better – somebody better take
the fall or everybody is going to take the fall for
this.
The circuit court then brought Suttlage back into the
courtroom and asked who had instructed her to print Document 2
from the internet. Suttlage responded that Taylor had done so
and that she had given Document 2 to Taylor after printing it.
The court inquired of Taylor how Document 2 could be the one
4
provided by the client's father when Suttlage indicated she had
printed it and given it to him. In response, Taylor insisted
the two documents (Document 1 and Document 2) were the same and
continued to deny knowledge of any alteration. The court
declared: "Mr. Taylor, you better come clean with me right now.
What is going on?" Taylor again denied involvement, whereupon
the court instructed Suttlage and Taylor to wait in the hall and
to refrain from speaking with each other.
The circuit court then called Jones to the witness stand
and placed him under oath. Upon questioning by the court, Jones
admitted he was likely in the law office when Document 2 was
printed from the internet but denied he was in the office when
it was retrieved that day to be offered into evidence. When
Jones admitted printing Document 1, the court inquired about the
username appearing on that document. The court stated: "I
couldn't figure out what it was until it was shown to me what it
says. . . . West is a Nazi is what it says. . . . Mr. Scialdone,
you better do some talking."
At that point, the circuit court placed Scialdone under
oath and sent Jones to the hall. Scialdone stated that he had
not seen any document the previous weekend containing the chat
room rules and that he did not know how to use computers, enter
a username, or print a document from the internet. The court
replied:
5
But you know how to white out and copy, I would
assume, which is what's been done to this document
that is being represented as being given to you two
years ago but was actually run off by your secretary
. . . on Sunday. . . . There is a serious ethical
issue here, if not criminal.
When Scialdone again denied any wrongdoing, the court stated:
Somebody in your firm, Mr. Scialdone – and it's
Scialdone and Taylor. So it's you and under your
direction, and you're the lead counsel in this case.
Somebody has perpetrated a fraud on this court, and I
will get to the bottom of it. I am not – I am finding
– at this point in time I am finding both you and Mr.
Taylor and Mr. Jones – get them back in here – in
contempt; and we will deal with it after the trial.
And if it comes out that one of you may not have had
any knowledge, I may reconsider; but at this point in
time all of you are involved.
When Taylor and Jones returned to the courtroom, the
circuit court asked who was responsible for the "westisanazi"
username. Jones admitted culpability, stating that he had been
"upset about some of the [court's] rulings." The court
admonished Jones and stated:
[R]ight now I am finding all three of you in contempt.
We will have hearings on this after the trial is over
as to what exactly happened here, but we're going to
complete this trial. And the three of you have been
found in contempt. If anyone is cleared after the
fact – and that's if someone can convince me that they
were not part of whatever fraud has been perpetrated
on the court – then we will deal with that after the
fact.
But right now all three of you are being held in
contempt. I'm finding that a fraud was perpetrated on
the court. I'm finding that Westisanazi is not a
funny joke, and it's contempt.
. . . .
6
[W]e will finish this trial and then we will have
hearings on this matter as far as anything that you
might – anything else you might want to say.
Otherwise, it will just be sentencing hearings.
Scialdone replied, "I don't think there's any basis of you
finding me in contempt." Again, the court stated:
I have a document that you tried to offer into
evidence, and you argued vehemently that it was a
document that your client and his father provided to
you two years ago when, in fact, it's a document that
your secretary printed out on Sunday for you and Mr.
Taylor. Those are the facts.
. . . .
[I]f Mr. Taylor wants to take the full fall for it, he
can; but right now it's both of you on the line and
. . . Mr. Jones as well. So if somebody wants to
break ranks and rat somebody out, they can; but
otherwise the three of you are in contempt. And I do
find all three of you contemptible at this point in
time.
Taylor asked the court to "note our exception."
After further discussion, the circuit court allowed Taylor
to return to the law office to retrieve additional documents in
an attempt to locate the 2005 chat room rules provided by the
client's father. The court instructed Taylor to "bring . . .
every piece of paper that you have related to this case." The
court required Scialdone and Jones to remain in the courtroom.
When Taylor returned with some documents, the circuit court
instructed Suttlage to look through them. Neither Suttlage nor
Taylor could locate the 2005 copy of the chat room rules. The
court then instructed a deputy sheriff to accompany Suttlage to
7
the law office so she could print, using the “wndydpooh”
username, another set of the chat room rules using the same
computer that she had used to print Document 2. The court
believed that a new copy would bear the current day's date on
the bottom of the page. The court also wanted Suttlage, with
the assistance of the deputy sheriff, to establish when she had
printed Document 2. The court again instructed Scialdone,
Taylor, and Jones to remain in the courtroom.
Suttlage returned to the courtroom about a half-hour later
with another set of the chat room rules she had printed in
accordance with the court's instructions. As the circuit court
noted, that document had a copyright date of 2006 at the bottom
of the page. Referring to Document 2, the court stated:
"There's a space on there where evidently something was laid
over on the copyright date and it was copied . . . . So which
one of the three of you want to fess up? Who took the copyright
off the document?"
After again denying any involvement in altering Document 2,
Scialdone asked the circuit court: "[A]re we going to be charged
– what kind of contempt are we being charged with?" The court
responded: "I am just at this point in time saying that I am
finding you in contempt, all three of you; and we'll deal with
it after the trial." Scialdone stated: "Well . . . if I'm being
charged with something, I'd like to know what I'm being charged
8
with, whether it's civil contempt, criminal contempt, or
whatever it is. And I may want to have a lawyer for that." The
court replied: "[R]ight now I'm finding you in summary contempt,
all three of you." The court continued:
[T]he issues of contempt for the three of you will be
dealt with after the trial is over. Right now it's
summary contempt, and we'll deal with sentencing at
that time. Whether I pursue anything further, I don’t
know. I haven't made up my mind about that, but right
now we're just dealing with the issue of contempt.
When Taylor noted that the most recent set of the chat room
rules that Suttlage had printed did not contain a page number at
the top, as Document 2 did, the circuit court again instructed
Suttlage to return to the law office to print another set of the
rules with a copyright date and print date at the bottom of the
page and a "Page 1 of 1" header. In explaining what he
characterized as a "communication error," Taylor told the court,
"I don't think it's contempt." The circuit court replied that
it was, "unless I am convinced otherwise that these documents
weren't changed." The court then told the defendants: "[L]et's
see what they come back with this time."
Suttlage later returned to the courtroom with a set of the
Yahoo chat room rules obtained from each of the law office's
computers. The court noted that each new document contained the
2006 copyright date and reiterated that Document 2 appeared to
have been altered. Without further rulings or any objections
9
from the defendants about the finding of contempt, the court
recessed for the day.
On July 14, 2006, after the conclusion of the criminal
trial, the circuit court returned to the issue of contempt. The
court stated:
Pursuant to Code Section 18.2-456, I found all
three of you in contempt of court. Mr. Taylor and Mr.
Scialdone, I found that the two of you attempted to
perpetrate a fraud upon the court by you, Mr. Taylor,
altering the document that was to be presented to this
court and you, Mr. Scialdone, for offering that
fraudulent document to the court. That very clearly
falls under Section 4 of [Code §] 18.2-456,
misbehavior of an officer of the court in his official
character.
You, Mr. Jones, violated [Section] 3 of [Code
§] 18.2-456 which deals with vile, contemptuous, and
assaulting language addressed to or published of a
judge for or in respect of any act or proceeding . . .
in such court. 3
The court then sentenced each of them to ten days in jail and a
$250 fine. Taylor stated, "Note our exception for the record,
please." The court replied: "Note everybody's exception."
3
In relevant part, Code § 18.2-456 prohibits:
(3) Vile, contemptuous or insulting language addressed
to or published of a judge for or in respect of any
act or proceeding had, or to be had, in such court, or
like language used in his presence and intended for
his hearing for or in respect of such act or
proceeding;
(4) Misbehavior of an officer of the court in his
official character[.]
10
Scialdone, Taylor, and Jones each filed a notice of appeal
and, on July 17 and 18, 2006, a motion for stay of execution of
the sentence pending appeal and a memorandum in support of the
motion. They complained that the contempt proceeding was
summary in nature without notice of the statutory basis for the
circuit court's action, that they were denied the right to
counsel, and that the alleged contemptible conduct was not
wholly contained in the record of the underlying criminal trial.
They further asserted that the circuit court had conducted an
investigation, interrogated witnesses, and sent a deputy sheriff
to conduct a warrantless search of their computers and office
and to seize documents. The defendants also alleged that the
circuit court judge had "immediately left the bench without
giving the [defendants] the opportunity to present any evidence,
. . . argument or to have the assistance of counsel." For these
reasons, they maintained that the alleged contempt was not
susceptible to a summary proceeding and therefore requested the
circuit court to postpone execution of the sentences pursuant to
Code § 19.2-319.
On July 19, because the circuit court had not ruled on
their motions, the defendants, now represented by counsel, filed
an emergency motion for stay of execution of the sentences in
the Court of Appeals. The defendants alleged that the circuit
court had "effectively denied their motion by not ruling on it."
11
In resolving the emergency motion, the Court of Appeals learned
that the circuit court had not yet entered a written order
holding the defendants in contempt. Following inquiry by the
Court of Appeals, the circuit court entered an order that same
day. After receiving the circuit court's order, the Court of
Appeals granted a temporary stay of the execution of the
defendants' jail sentences pending a ruling on their motions to
stay by the circuit court.
On July 24, 2006, the circuit court convened a hearing on
the defendants' motions to stay. At that hearing, the court
told the defendants that they had no right to counsel because it
was summary contempt but that it would, nevertheless,
"accommodate" their attorney. After the court remarked a second
time that the defendants had no right to counsel, Scialdone
stated: "Judge, I believe we have a right to counsel." The
hearing on the motions to stay was continued until July 26,
2006.
At the subsequent hearing, the circuit court ruled:
Although you've been found in summary contempt
and thus have no right to counsel, I have, in fact,
read all of the papers and information submitted by
[your counsel] and I've also reviewed a memorandum of
12
law submitted by the National Association of Criminal
Defense Lawyers.[ 4 ]
It appears that their position is that this is
not summary contempt but some other form of contempt.
But I do not find their arguments persuasive. I cannot
imagine any worse misbehavior by attorneys in the
presence of the court or so near thereto as to
obstruct or interrupt the administration of justice
than in this case.
The court also stated that the contemptible conduct "did occur
in court and had to be dealt with immediately to preserve the
integrity of the trial." Continuing, the court found that
although the parties "may not have actually manufactured in the
courtroom the fraudulent document . . . , it was certainly
continuing in nature" because they offered it into evidence.
The court also disagreed with the defendants' assertions that
everything regarding the contemptible conduct had not occurred
before the court and noted that the defendants had not objected
when the court obtained documents from the law office.
The circuit court concluded: "As such, I do not believe
that you have a substantial likelihood of prevailing on appeal
and thus your request for a stay is denied." When the court
remanded the defendants into custody, Taylor asked: "Judge,
could we . . . note our exceptions, please?" The court
4
The National Association of Criminal Defense Lawyers filed
an amicus brief in support of the defendants' motions for stay,
arguing that a summary contempt proceeding was improper under
the circumstances.
13
responded, "I'll note your exceptions for all three of you."
This Court subsequently granted a stay of execution of the
sentences pending appeal.
On appeal to the Court of Appeals, a three-judge panel held
that the summary contempt proceeding conducted by the circuit
court violated each of the defendant's due process rights and
thus remanded for further proceedings. Scialdone v.
Commonwealth, 51 Va. App. 679, 718-24, 727, 660 S.E.2d 317, 337-
41 (2008). Upon rehearing en banc, the Court of Appeals held
that the defendants had "failed to preserve for appeal their
argument that the [circuit] court deprived them of due process
rights associated with plenary contempt." Scialdone v.
Commonwealth, 53 Va. App. 226, 230, 670 S.E.2d 752, 754 (2009).
Citing Nusbaum v. Berlin, 273 Va. 385, 406, 641 S.E.2d 494, 505
(2007), the Court of Appeals concluded that the defendants had
failed to object to the nature of the proceedings at any point
prior to filing their motions to stay and had never specifically
asked for the relief they now claimed was improperly denied.
Scialdone, 53 Va. App. at 234, 670 S.E.2d at 756. The motions
to stay, according to the Court of Appeals, were insufficient to
preserve their arguments on appeal because Code § 19.2-319 "does
not expressly or implicitly call upon the [circuit] court to
reconsider its prior rulings or vacate the judgment being
appealed." Id. at 236, 670 S.E.2d at 757. The Court of Appeals
14
stated: "Under Rule 5A:18, raising a legal argument in support
of one type of relief does not preserve for appellate review the
same argument in support of another type of relief which was
never requested." Id. at 234, 670 S.E.2d at 756. Because the
defendants had never requested "any procedural right associated
with plenary contempt," the Court of Appeals reasoned that it
would be wrong to impose upon the circuit court the sua sponte
obligation to vacate the conviction "when the party standing to
benefit from the vacature . . . conspicuously chose not to seek
such relief." Id. at 236-37, 670 S.E.2d at 757.
Now before this Court, the defendants challenge the Court
of Appeals' holding that they failed to preserve their argument
for appeal as well as the circuit court's conducting a summary
contempt proceeding. We will address the issues seriatim.
II. ANALYSIS
A. Preservation of Appellate Issue
The defendants maintain that Rule 5:25, Code § 8.01-384,
and this Court's precedents require only that a party state
his/her objections and the grounds therefor and that their
motions to stay and accompanying memoranda satisfied those
requirements. The Court of Appeals erred, the defendants
maintain, in holding that they were also required to specify the
relief sought. According to the defendants, the circuit court
had the opportunity to consider their argument objecting to the
15
summary contempt proceeding and in fact ruled on that argument
at the July 26 hearing. They also contend that pursuant to Code
§ 8.01-384(A), they had to indicate either "the action which
[they] desire[d] the court to take" or their "objections to the
action . . . and [their] grounds therefor," not both. Code
§ 8.01-384(A).
The Commonwealth counters that the Court of Appeals
correctly applied Rule 5A:18 in holding that the defendants
waived their argument that the circuit court deprived them of
due process by conducting a summary contempt proceeding. The
Commonwealth asserts that the defendants were required to
specify in the circuit court the relief they sought and could
not merely rely on their motions to stay. The Commonwealth also
argues that the purpose of Code § 8.01-384 "is not to define
what constitutes a 'specific objection,'" but merely to
eliminate "the previous requirement that a formal 'exception' is
necessary, after a litigant has already made a specific
objection below."
The provisions of Rule 5:25, in relevant part, state:
"Error will not be sustained to any ruling of the trial court
. . . unless the objection was stated with reasonable certainty
at the time of the ruling." Rule 5:25; see also Rule 5A:18.
The purpose of the rule is to "afford the trial court an
opportunity to rule intelligently on the issues presented, thus
16
avoiding unnecessary appeals and reversals." Weidman v.
Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991). A party
must state the grounds for an objection "so that the trial judge
may understand the precise question or questions he is called
upon to decide." Jackson v. Chesapeake & Ohio Ry. Co., 179 Va.
642, 651, 20 S.E.2d 489, 492 (1942). Thus, the provisions of
Rule 5:25 "protect the trial court from appeals based upon
undisclosed grounds." Fisher v. Commonwealth, 236 Va. 403, 414,
374 S.E.2d 46, 52 (1988). To satisfy the rule, "an objection
must be made . . . at a point in the proceeding when the trial
court is in a position, not only to consider the asserted error,
but also to rectify the effect of the asserted error." Johnson
v. Raviotta, 264 Va. 27, 33, 563 S.E.2d 727, 731 (2002). In
addition, "a specific, contemporaneous objection gives the
opposing party the opportunity to meet the objection at that
stage of the proceeding." Weidman, 241 Va. at 44, 400 S.E.2d at
167. The rule is not intended, however, "to obstruct
petitioners in their efforts to secure writs of error, or
appeals, but . . . to put the record in such shape that the case
may be heard in this [C]ourt upon the same record upon which it
was heard in the trial court." Kercher v. Richmond,
Fredericksburg & Potomac R.R. Co., 150 Va. 108, 115, 142 S.E.
393, 395 (1928).
17
In analyzing whether a litigant has satisfied the
requirements of Rule 5:25, this Court has consistently focused
on whether the trial court had the opportunity to rule
intelligently on the issue. "If [the] opportunity [to address
an issue] is not presented to the trial court, there is no
ruling by the trial court on the issue, and thus no basis for
review or action by this Court on appeal." Riverside Hosp.,
Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006).
An appellate court can only "determine whether or not the
rulings and judgment of the court below . . . were correct."
Jackson, 179 Va. at 651, 20 S.E.2d at 493.
For example, in Eure v. Norfolk Shipbuilding & Drydock
Corp., 263 Va. 624, 561 S.E.2d 663 (2002), the trial court twice
ruled that the language in a particular agreement was ambiguous
and permitted the introduction of parol evidence before
reversing its previous rulings and holding that the language was
unambiguous. Id. at 628-29, 561 S.E.2d at 665-66. In rejecting
a claim that the plaintiff had waived one of her appellate
arguments, this Court stated that, "[h]aving ruled on the issue
three times, the trial court clearly had the opportunity 'to
rule intelligently' on the issue," and therefore the case did
not implicate the "concerns" underpinning Rule 5:25. Id. at
631-32, 561 S.E.2d at 667. In George v. Commonwealth, 276 Va.
767, 667 S.E.2d 779 (2008), this Court held that although a
18
defendant had failed to use the term "fatal variance" in his
argument to the trial court, he nevertheless "sufficient[ly] put
that court on notice of his position regarding the inconsistency
between the indictments and the jury instruction." Id. at 773,
667 S.E.2d at 782.
Similarly, in Weidman, the plaintiffs failed to object when
the trial court orally granted a motion to dismiss. 241 Va. at
43, 400 S.E.2d at 166. However, this Court held that the
plaintiffs "repeatedly made known to the court [their] position"
both at the hearing when the motion to dismiss was granted and
in a motion to rehear. Id. at 44, 400 S.E.2d at 167. Thus, the
"opportunity to rule intelligently on the issues presented [was]
afforded . . . the trial court." Id.; see also Brown v.
Commonwealth, 279 Va. 210, 217-18, ___ S.E.2d ___, ___ (2010)
(holding that the Commonwealth made known its position to the
trial court, which acknowledged it and thus had the opportunity
to rule intelligently on the issue); Raviotta, 264 Va. at 33,
563 S.E.2d at 732 (holding that the trial court was aware of the
plaintiff's objection before a matter was submitted to the jury
and if the court had agreed with the plaintiff, it could have
given the jury a different instruction); Kaufman v. Kaufman, 12
Va. App. 1200, 1204, 409 S.E.2d 1, 5-6 (1991) (holding that
although the appellant failed to endorse the final decree or
state any objections thereto, he had "made known to the trial
19
court his position" through memoranda and written correspondence
prior to the issuance of a final decree and the trial court had
"specifically acknowledged the existence of [the appellant's]
objections").
Although Scialdone asked the circuit court at one point in
the proceeding whether he was being charged with civil or
criminal contempt and indicated that he might want an attorney,
and later also told the court that he believed the defendants
had the right to be represented by counsel, we will focus on
whether the motions to stay execution of the sentences and
accompanying memoranda satisfied the requirements of Rule 5:25,
as did the Court of Appeals. Although a motion to vacate or a
motion for reconsideration would have been more precise, the
defendants' motions to stay clearly encompassed the arguments
they now present on appeal: that the circuit court improperly
conducted a summary contempt proceeding and thereby violated
their due process rights. In identical motions to stay and
memoranda, each defendant argued that he had "a defense to the
charge" and that summary contempt was improper because all of
the alleged contemptible conduct did not occur before the court,
thereby requiring the court to gather evidence before finding
the defendants in contempt. Thus, asserted the defendants, the
circuit court should have conducted a plenary contempt
proceeding and provided them with certain due process rights.
20
The Commonwealth argues, however, as the Court of Appeals
held, that presenting those arguments in motions to stay
execution of their sentences did not preserve the issue for
appeal. However, numerous cases from this Court regarding the
reasons for Rule 5:25 belie the Commonwealth's position. In the
motions to stay, the defendants objected to the actions of the
circuit court and made the court aware of the grounds for those
objections. See Rule 5:25; Code § 8.01-384(A). The motions
unquestionably "afford[ed] the trial court an opportunity to
rule intelligently" on the issue because the court in fact did
so. 5 See Weidman, 241 at 44, 400 S.E.2d at 167. The circuit
court stated: "I have . . . read all of the papers and
information submitted . . . . It appears [the] position is that
this is not summary contempt but some other form of contempt.
But I do not find [the] arguments persuasive." The court
responded to the defendants' assertions that all of the alleged
contemptible conduct did not occur before the court and that the
court had improperly called witnesses and collected evidence.
Finally, if any doubt remained, the circuit court held: "I do
not believe that you have a substantial likelihood of prevailing
on appeal and thus your request for a stay is denied."
5
Concerns about the opposing party having the opportunity
to address the objections are not present in this case, as there
was no opposing party in the summary contempt proceeding before
the circuit court.
21
In finding the defendants' arguments without merit, the
circuit court necessarily contemplated whether the defendants
were entitled to a plenary hearing and was well aware that
prevailing on appeal in this instance would result in the
defendants' receiving a new hearing. Therefore, the circuit
court manifested its awareness of the "precise question [it was]
called upon to decide": whether a summary contempt proceeding
was proper. See Jackson, 179 Va. at 651, 20 S.E.2d at 492.
Furthermore, the circuit court acknowledged at the July 24
hearing that it had received the motions to stay "last Monday,"
which was July 17, 2006, the date the defendants filed the
motions. Thus, the court was aware of the defendants'
objections to the summary contempt proceeding before the court
entered its July 19, 2006 written order finding them in
contempt. In this respect, we agree with the dissent in the
Court of Appeals:
[W]here a party makes his objections known to the
court prior to or at the time of entry of a final
order or decree and does not specifically disclaim the
desire to have the court rule on those objections,
entry of a final order or decree adverse to those
objections constitutes a rejection of them and
preserves them under Rule 5A:18 [and Rule 5:25] for
purposes of appeal.
53 Va. App. at 253, 670 S.E.2d at 765 (Elder, J., dissenting).
In Eure, we stated that "[t]he purpose of Rule 5:25 is 'to
protect the trial court from appeals based upon undisclosed
22
grounds, to prevent the setting of traps on appeal, to enable
the trial judge to rule intelligently, and to avoid unnecessary
reversals and mistrials.'" 263 Va. at 631, 561 S.E.2d at 667
(quoting Fisher, 236 Va. at 414, 374 S.E.2d at 52). Here, as in
Eure, the "concerns" served by Rule 5:25 are not present. Id.
This Court is not hearing the case on a different record than
that before the circuit court, Kercher, 150 Va. at 115, 142
S.E.2d at 395, nor is this appeal on "undisclosed grounds."
Fisher, 236 Va. at 414, 374 S.E.2d at 52. And, because the
defendants filed their motions to stay before the circuit court
entered its final order, "the trial court [was] in a position,
not only to consider the asserted error, but also to rectify the
effect of the asserted error." See Raviotta, 264 Va. at 33, 563
S.E.2d at 731. The trial court's having had the opportunity to
address the defendants' arguments, and then in fact ruling on
them, provides a "basis for review . . . by this Court on
appeal." See Riverside, 272 Va. at 526, 636 S.E.2d at 420.
We recognize that in some circumstances, an appellate issue
may be waived if a party merely voices disagreement with the
action of the trial court and does not state the specific relief
requested. See, e.g., Cheng v. Commonwealth, 240 Va. 26, 38,
393 S.E.2d 599, 606 (1990) (holding that improper comments or
conduct during argument will not be considered on appeal unless
the opposing party moves for a cautionary instruction or for a
23
mistrial). But, because of its particular facts and procedural
history, this case does not present such a circumstance. In
sum, however imprecise the vehicle by which the defendants
raised their objections, their motions to stay presented their
arguments squarely to the circuit court, which then ruled on
them. The purposes of Rule 5:25 as articulated by this Court
were satisfied: the circuit court was on notice of the
defendants' objections and it had the opportunity to rule
intelligently on those objections.
The Commonwealth argues, however, that the holding in
Nusbaum v. Berlin compels affirmance of the Court of Appeals'
judgment. Like the defendants, Nusbaum was found in criminal
contempt and argued on appeal that the summary contempt
proceeding violated his due process rights. 273 Va. at 402, 641
S.E.2d at 503. On at least two separate occasions after being
found in contempt, Nusbaum articulated the particulars of his
due process objections regarding the summary contempt proceeding
but nevertheless specifically told the trial court that he was
not asking the court to reconsider its ruling based on those
objections. Id. at 396-97, 641 S.E.2d at 499-500. Instead,
Nusbaum stated that he was only "mak[ing] sure" he preserved
issues for appeal. Id. at 404, 641 S.E.2d at 504. This Court
held that, by affirmatively advising the trial court he was not
seeking a reconsideration of the contempt finding, Nusbaum did
24
not allow the trial court to rectify what he subsequently
asserted as error and therefore "did not afford the [trial]
court an opportunity to rule intelligently on the due process
issues" he raised on appeal. Id. at 406, 641 S.E.2d at 505.
The case now before us is distinguishable from Nusbaum in
two respects. First, Nusbaum affirmatively told the trial court
he was not asking it to reconsider the finding of contempt based
on his due process objections. In contrast, the defendants here
made no such disclaimer while articulating their position that
they were entitled to a plenary contempt proceeding with
accompanying due process rights. In addition, unlike Nusbaum,
Scialdone expressed his desire for procedural rights when he
advised the circuit court that he might want an attorney.
Second, the circuit court in this case actually decided the
merits of the defendants' objections to the nature of the
proceeding. Even if, as the Court of Appeals held, the trial
court in Nusbaum had the same opportunity to rule on the
objections as the circuit court in this case did, the circuit
court here in fact ruled on the issue. In sum, Nusbaum's
affirmative disavowal of any request for a ruling on the merits
of his arguments deprived the trial court of the "opportunity to
rule intelligently" on his objections. Id. The same cannot be
said in regard to the situation presented in this appeal.
25
Thus, we conclude that the Court of Appeals erred in
holding that the defendants waived their argument that the
circuit court violated their due process rights by conducting a
summary contempt proceeding. The defendants' motions to stay
squarely presented their arguments to the circuit court and the
court ruled on the merits of the objections. For these reasons,
we hold that the defendants satisfied the requirements of Rule
5:25 and 5A:18 and preserved their arguments for appeal.
B. Summary Contempt
Citing In re Oliver, 333 U.S. 257 (1948), the defendants
argue that, unless the contemptible conduct occurs entirely in
the presence of the trial court, a party being held in contempt
deserves notice of the charges, an opportunity to present a
defense, and the assistance of counsel. Because they were not
given any of these procedural rights, the defendants maintain
they were deprived of their due process rights and ask this
Court to reverse their respective convictions for summary
contempt.
"It has long been recognized and established that a court
is invested with power to punish for contempt." Higginbotham v.
Commonwealth, 206 Va. 291, 294, 142 S.E.2d 746, 749 (1965). The
exercise of this power, however, "is a delicate one and care is
needed to avoid arbitrary or oppressive conclusions." Cooke v.
United States, 267 U.S. 517, 539 (1925). "[T]he limits of the
26
power to punish for contempt are 'the least possible power
adequate to the end proposed.' " Harris v. United States, 382
U.S. 162, 165 (1965).
Although the "power of the court to punish is the same,"
there are two distinct types of contempt, direct and indirect.
Burdett v. Commonwealth, 103 Va. 838, 846, 48 S.E. 878, 881
(1904). Direct contempt occurs when the contemptible conduct
"is committed in the presence of the court." Id. at 845-46, 48
S.E. at 880-81. In that circumstance, the court "is competent
. . . to proceed upon its own knowledge of the facts, and to
punish the offender without further proof, and without issue or
trial in any form." Id. at 846, 485 S.E. at 881 (internal
quotation marks omitted); see also Code § 18.2-456 (enumerating
instances in which courts may summarily punish for contempt);
International Union, United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 832 (1994) ("[D]irect contempts in the presence of the
court traditionally have been subject to summary adjudication,
'to maintain order in the courtroom and the integrity of the
trial process in the face of an "actual obstruction of
justice." ' ") (citations omitted). Indirect contempt, however,
takes place when the contemptible conduct is "committed not in
the presence of the court." Burdett, 103 Va. at 846, 48 S.E. at
881. In that circumstance, "the offender must be brought before
the court by a rule or some other sufficient process." Id.; see
27
also United Mine Workers, 512 U.S. at 833 ("[P]rocedural
protections are afforded for contempts occurring out of court,
where the considerations justifying expedited procedures do not
pertain."). "Summary punishment always, and rightfully, is
regarded with disfavor and, if imposed in passion or pettiness,
brings discredit to a court as certainly as the conduct it
penalizes." Sacher v. United States, 343 U.S. 1, 8 (1952).
In In re Oliver, the Supreme Court summarized the
distinction between direct and indirect contempt:
Except for a narrowly limited category of contempts,
due process of law . . . requires that one charged
with contempt of court be advised of the charges
against him, 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 behalf, either
by way of defense or explanation. The narrow
exception to these due process requirements includes
only charges of misconduct, in open court, in the
presence of the judge, which disturbs the court's
business, where all of the essential elements of the
misconduct are under the eye of the court, are
actually observed by the court, and where immediate
punishment is essential to prevent "demoralization of
the court's authority" before the public. If some
essential elements of the offense are not personally
observed by the judge, so that he must depend upon
statements made by others for his knowledge about
these essential elements, due process requires . . .
that the accused be accorded notice and a fair hearing
as above set out.
333 U.S. at 275-76; see United States v. Marshall, 451 F.2d 372,
374 (9th Cir. 1971) (stating that when the misconduct occurs in
the court's presence, "the judge is his own best witness of what
28
occurred" and that the use of the testimony of other witnesses
precludes the use of summary contempt).
With regard to indirect contempt, the Supreme Court of the
United States explained that when a judge
can not have such personal knowledge [of the
misbehavior], and is informed thereof only by
confession of the party, or by testimony under oath of
others, the proper practice is, by rule or other
process, to require the offender to appear and show
cause why he should not be punished.
Cooke, 267 U.S. at 535. Such due process is required because
"[p]unishment without issue or trial [is] so contrary to the
usual and ordinarily indispensable hearing before judgment,
constituting due process, that the assumption that the court saw
everything that went on in open court [is] required to justify
the exception." Id. at 536; see In re Oliver, 333 U.S. at 273
("A person's right to reasonable notice of a charge against him,
and an opportunity to be heard in his defense . . . are basic in
our system of jurisprudence."). Therefore, unless the contempt
is "committed in open court," due process "requires that the
accused should be advised of the charges and have a reasonable
opportunity to meet them by way of defense or explanation."
Cooke, 267 U.S. at 537. This opportunity includes "the
assistance of counsel, if requested, and the right to call
witnesses." Id.
29
Thus, we must address two questions. First, did the
contemptible conduct in this case occur "in open court, in the
presence of the judge . . . where all of the essential elements
of the misconduct [were] actually observed by the court"? In re
Oliver, 333 U.S. at 275. And, if not, were the defendants
advised of the charges against them and given a reasonable
opportunity to meet them, the right to be represented by
counsel, and the chance to testify and call other witnesses?
Cooke, 267 U.S. at 537. Because the answer to both of these
questions is no, we will reverse the defendants' convictions of
contempt.
There is no question that the circuit court in this case
did not observe all the "essential elements" of the alleged
misconduct at issue. The court concluded that Scialdone and
Taylor "attempted to perpetrate a fraud upon [the] court by
[Taylor's] altering a document that was to be presented to [the]
court and [by Scialdone's] offering that fraudulent document to
the court" in violation of Code § 18.2-456(4). Although
Scialdone's offering the document into evidence occurred in the
circuit court's presence, the court's conclusion that the
document was altered was the result of extensive questioning and
evidence-gathering. The circuit court repeatedly stated that it
did not know what had taken place and that it would "get to the
bottom of it." After initially questioning Scialdone regarding
30
Documents 1 and 2, the court heard the client's father testify
about the chat room rules he had provided in 2005. When that
testimony revealed a different username had been used to obtain
the 2005 copy, the court asked Scialdone the identity of
"wndydpooh," the username on Document 2. Upon learning that
Scialdone's secretary was named Wendy, the court directed
Suttlage and Taylor to come to the courtroom and specifically
instructed that they not be informed of the reason for their
required appearance.
The circuit court then questioned Suttlage, Taylor,
Jones, and Scialdone, all under oath, regarding Documents 1
and 2. Despite that questioning, the court still was not
satisfied, stating that "[s]omebody has perpetrated a fraud
on this court, and I will get to the bottom of it." After
finding Taylor, Jones, and Scialdone in contempt, the court
instructed Taylor to return to the law office and retrieve
"every piece of paper . . . related to this case." When
Taylor returned to the courtroom with additional documents,
the court directed Suttlage to sort through the papers.
This effort did not provide the court with satisfactory
answers, so it twice instructed Suttlage to return to the
law office to print additional copies of the chat room
rules. On one of those occasions, the court directed a
deputy sheriff to accompany Suttlage to the law office.
31
Finally, when the additional copies provided by Suttlage
still did not allay the court's concerns, it ended the
investigation and held the defendants in summary contempt.
Though the circuit court suspected Document 2 had been
altered when Scialdone first offered it into evidence, the
court's subsequent actions and statements demonstrate that it
did not know what had occurred or who was responsible. In
particular, the court's repeated requests that Suttlage return
to the law office and print new copies of the chat room rules
indicate that the court was not certain whether the absence of
the copyright and print date on the submitted document was due
to alteration or a function of the law office's computers and/or
printers.
By the time it had completed its investigation, the
circuit court had questioned four witnesses under oath,
including the three defendants, and had obtained additional
documents from the law office. Thus, it is clear that the
circuit court did not "have . . . personal knowledge" of
the misconduct, Cooke, 267 U.S. at 535, and that "all of
the essential elements of the misconduct" were not "under
the eye of the court." In re Oliver, 333 U.S. at 275.
Rather, the court was "informed thereof only by confession
of the party [and] testimony under oath of others." Cooke,
267 U.S. at 535. As in In re Oliver, the circuit court's
32
"conclusion that [the document was altered] was based, at
least in part, upon the testimony given . . . by one or
more witnesses other than petitioner." In re Oliver, 333
U.S. at 276. Thus, we conclude that the circuit court
erred by employing a summary proceeding to find Scialdone
and Taylor in contempt and thereby violated their due
process rights.
We reach the same conclusion as to Jones. The circuit
court found Jones in contempt for violating the prohibition in
Code § 18.2-456(3) of "vile, contemptuous, and assaulting
language addressed to . . . a judge," by "creating a screen name
'westisanazi.' " Although the document bearing the
"westisanazi" username was offered into evidence by Scialdone,
the court did not know the "essential elements" of what had
taken place: in particular who had created and used that screen
name. After asking Scialdone about the username, the court
questioned Jones under oath, who then admitted creating the
username and explained why he had done so. As with Scialdone
and Taylor, the circuit court had to engage in fact-gathering
before it knew that Jones was responsible for the username.
Moreover, Jones' alleged misconduct in creating the username did
not occur in the presence of the court. Jones' sole act was
creating the username and printing Document 1 in the law office,
which Scialdone then published to the court by offering it into
33
evidence. To the degree Jones engaged in contemptible conduct,
it occurred wholly outside the court's presence.
In sum, nothing indicates that defendants' conduct was
"such an open, serious threat to orderly procedure that
instant and summary punishment, as distinguished from due
and deliberate procedures, was necessary." Harris, 382
U.S. at 165 (internal citation omitted). The circuit court
relied on the statements of the defendants, as well as
others, and the gathering of additional documents before it
knew the essential elements of the offenses.
By our decision today, we do not, however, imply that
a trial court is unable to ask any questions in a summary
contempt proceeding. Circumstances will undoubtedly arise
when a trial court observes the essential elements of the
contemptible conduct, but nonetheless needs to ask
questions to clarify some detail. See, e.g., People v.
Clancy, 239 Ill. App. 369, 375 (1926) (holding that some
testimony can properly be heard in a case of direct
contempt). Indeed, a trial court will often provide the
contemnor with an opportunity to show cause why he should
not be held in contempt and ask questions in that regard.
See, e.g., Pounders v. Watson, 521 U.S. 982, 985-86 (1997)
(in summary contempt proceeding, court asked questions of
the contemnor to explain conduct); State v. Roll, 298 A.2d
34
867, 872-73 (Md. 1973) (aware of the contemnor's offense,
court heard additional testimony of details and asked
contemnor to show cause); In re Yengo, 417 A.2d 533, 540-42
(N.J. 1980) (holding that unexplained absence of attorney
requires explanation and some questioning). But, as we
have explained, a summary contempt proceeding in this case
was improper and violated the defendants' due process
rights.
Because this case is "outside the narrow category of cases
that can be punished as contempt without notice, hearing and
counsel," the defendants were entitled to the due process rights
outlined by the Supreme Court in In re Oliver: "[notice] of the
charges against [them],. . . a reasonable opportunity to meet
them by way of defense or explanation, . . . the right to be
represented by counsel, and . . . a chance to testify and call
other witnesses in [their] behalf, either by way of defense or
explanation." 333 U.S. at 275. Although the circuit court
afforded the defendants an opportunity to explain their conduct,
albeit under oath and upon questioning by the court, that
opportunity alone did not satisfy the due process rights to
which the defendants were entitled. The defendants were not
notified of the nature of the charges before being questioned by
the circuit court. Accord Davis v. Commonwealth, 219 Va. 395,
397-98, 247 S.E.2d 681, 682-83 (1978) (finding violation of
35
appellant's due process rights when he was told to appear in
court but was not told that the purpose for the appearance was
to explain why he should not be found in contempt). Without
such notice, the defendants could not prepare a defense to the
charges before they were placed under oath and questioned. In
addition, the circuit court did not provide the defendants the
right to call witnesses on their behalf or to retain counsel.
In fact, the court maintained its belief throughout the
proceeding that the defendants had no right to counsel. In sum,
the circuit court did not afford the defendants the due process
rights to which they were entitled.
III. CONCLUSION
For the reasons stated, we conclude the Court of Appeals
erred by holding that the defendants failed to preserve their
argument that the circuit court deprived them of due process by
proceeding with summary contempt. We further conclude that the
circuit court erred by failing to afford the defendants a
plenary proceeding with the requisite due process rights. Thus,
we will reverse the judgment of the Court of Appeals and remand
with directions that the Court of Appeals remand to the circuit
court for further proceedings consistent with this opinion.
Reversed and remanded.
36