T. T. v. State

BUCHANAN, Chief Judge,

concurring in result.

I concur in result.

I concur in the majority’s conclusion that “criminal contempt is not an act for which a juvenile can be adjudicated a delinquent child under IC 31—6—4—1(b)(1).” A juvenile who is in contempt of court has not committed “an act that would be an offense if committed by an adult”; therefore, it was improper for the trial judge to confine T. T. to secure detention until she reached age twenty under the authority of Ind.Code 31-6-4-6.5(b).1

Having so agreed, I would go further and address more fully the separate issue of whether juvenile courts may, apart from a delinquency proceeding, hold a juvenile status offender in contempt pursuant to Ind. Code 31-6-7-15 (“The juvenile court may punish a person for contempt of court under IC 34-4-7, IC 34-4-8, or IC 34-4-9.”) (hereinafter referred to as the Contempt Statute). Had certain procedural requirements been met,2 and they were not, T. T. could *658properly have been cited for indirect criminal contempt3 and imprisoned for up to three months.4

In 1979, the Indiana Legislature promulgated the present version of the Contempt Statute. During that same legislative session, IC 31-6-4-6.5 was enacted to prohibit the secure detention of status offenders alleged to be delinquent children. The two statutes, enacted during the same year and placed together in Title 31, Article 6 dealing with juvenile law, must be construed together so as to harmonize and give effect to each. Connell v. Logansport, (1979) Ind. App., 397 N.E.2d 1058; Wayne Twp. v. Lutheran Hospital, (1974) 160 Ind.App. 427, 312 N.E.2d 120, trans. denied. The legislature’s attempt to deinstitutionalize status offenders in IC 31-6-4-6.5 cannot be construed standing alone, Demoss v. Demoss, (1964) 135 Ind.App. 548, 195 N.E.2d 496, but must be interpreted in light of the need for effective enforcement of juvenile court orders.

The Contempt Statute grants the juvenile court power to punish a person for contempt of court pursuant to the general contempt provisions in Title 34, Article 4, Chapters 7, 8, and 9. The list of acts constituting contempt set out in Chapter 7 is not exhaustive—it is “not for the Legislature to declare what the court shall or shall not consider to be a contempt,” Little v. State, (1883) 90 Ind. 338, 341—but is a recognition of the court’s inherent contempt power:

“The right to punish for contempt is inherent in every court. It is necessary to the preservation of order, to the enforcement of judgments, writs and orders, and therefore is essential to the due administration of justice.... It is therefore sometimes necessary for courts to exercise their power to punish for contempt, not for the sake of the judges nor to vindicate them, but in order to maintain the standing, the respect, the dignity, and the usefulness of the courts through and by which justice is administered to the people.”

Ray v. State, (1917) 186 Ind. 396, 404-05, 114 N.E. 866, 869.

The legislature is a regulator of contempt power by the judiciary, but it cannot take the power away or materially impair it. LaGrange v. State, (1958) 238 Ind. 689, 153 N.E.2d 593; Cheadle v. State, (1886) 110 Ind. 301, 11 N.E. 426; Holman v. State, (1885) 105 Ind. 513, 5 N.E. 556; Little, supra. IC 31-6-4-6.5(a), which prohibits the secure detention of status offenders alleged to be delinquent children, should not be read to limit the juvenile court’s inherent contempt power over status offenders who willfully disobey a court order. Acts constituting contempt may be punished in accordance with the statutory and inherent powers of the trial judge, regardless of the status of the person in contempt.5 See Bryant v. State, (1971) 256 Ind. 587, 591, 271 N.E.2d 127, 130 (“the statute giving *659Juvenile Court exclusive jurisdiction over juveniles does not apply to a case of direct contempt in another court, and ... the court in which the contempt occurs has full power to punish the juvenile as it would any other person”).

It should be remembered that a criminal contempt proceeding is a separate proceeding from the main action out of which it grows, Allison v. State ex rel. Allison, (1963) 243 Ind. 489, 187 N.E.2d 565; Denny v. State ex inf. Brady, (1932) 203 Ind. 682, 182 N.E. 313, and the Contempt Statute should be read accordingly. Thus, T. T. has committed two distinct transgressions. True, one of them would be a status offense, an act of delinquency which does not warrant incarceration according to the legislative scheme. But she also has committed a separate offense by willfully defying a lawful court order—an act which warrants a citation for indirect criminal contempt and which subjects her to incarceration for up to three months. Any other interpretation of the Contempt Statute would undermine the trial court’s ability to effectively conduct court business.

Had the necessary contempt procedure been followed in this case, the trial court could, in my opinion, have sentenced T. T. to up to three months in a secure facility.

. “A child alleged to be a delinquent child under IC 31—6—4—1(b)(1) [children who commit acts that would be offenses if committed by adults] may be held in a secure facility_”

. “In all cases of indirect contempts, the person charged therewith shall be entitled, before answering thereto, or being punished therefor, to have served upon him a rule of the court, against which the alleged contempt may be committed; which said rule shall clearly and distinctly set forth the facts which are alleged to constitute such contempt; and shall specify the time and place of such facts with such reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against him; and shall specify a time and place at which he is required to show cause, in said court, why he should not be attached and punished *658for such contempt, which time the court shall, on proper showing, extend so as to give the defendant a reasonable and just opportunity to purge himself of such contempt. No such rule as hereinbefore provided for, shall ever issue until the facts, alleged therein to constitute such contempt, shall have been brought to the knowledge of the court by an information, duly verified by the oath of affirmation of some officer of the court, or other responsible person.”

IC 34-4-7-8. See also IC 34-4-7-9 and IC 34—4-8-1.

.“Every person who shall be guilty of any wilful disobedience of ... any order lawfully issued by any court of record ... shall be guilty of an indirect contempt of the court ....” IC 34-4-7-3.

. “Punishments for contempts of court, under this chapter, may be by fine or imprisonment, or both, in the discretion of the court inflicting the same, but no fine shall exceed the sum of five hundred dollars [$500], nor shall any imprisonment extend beyond the term of three [3] months.” IC 34-4-7-6.

. This does not mean juveniles placed in secure facilities for contempt of court should be incarcerated with adult offenders. Judges may look to the Juvenile Code for guidance. See, e.g., I.C. 31-6-4-6.5(b) (juvenile who commits an act that would be an offense if committed by an adult may be securely detained, but “must be restricted to an area ... in which he has no more than incidental contact with persons charged with, imprisoned for, or incarcerated for crimes”).