Criminal – Attorney’s contempt conviction is vacated

Where an attorney was found in summary contempt because of language included in a motion, but the motion was drafted, printed and submitted outside of open court, her conviction was vacated. Because potential contemptuous language in an out-of-court filing is properly assessed under indirect contempt, those alleged to have included contemptuous language in such filings are entitled to a plenary proceeding in which due process is applied.

Background

Debra Desmore Corcoran appeals the circuit court’s order finding her in summary contempt for language included in her motion to appoint an alternate ex parte judge.

Contempt

The issue on appeal is whether language in an out-of-court filing, if deemed contemptuous, would constitute direct or indirect contempt. Direct contempt occurs “in the presence of the court,” while indirect contempt “occur[s] outside the presence of the court.”

There is no dispute that the circuit judge’s basis for finding Corcoran guilty of criminal contempt was the language contained in her motion. His finding was not based on any behavior exhibited or words spoken by her in open court during the ex parte hearing. While it is true that the circuit judge certainly had personal knowledge about the ex parte hearing he conducted, and was therefore the “best witness of what occurred” at the hearing, there is no factual dispute that Corcoran’s filing of the motion—drafting it, printing it and submitting it—took place outside of open court.

As Corcoran’s counsel proffered during questioning by the circuit judge, she would have liked the opportunity to better prepare to defend her client, including the opportunity to investigate the incident, ascertain whether there were witnesses and whether there was an audio recordation of the ex parte hearing. She should have been afforded the opportunity to present a defense in the first place.

The purpose of summary punishment as “immediate punishment . . . essential to prevent ‘demoralization of the court’s authority’ before the public.” Assuming, without deciding, that the language used in the motion was contemptuous, it cannot be said that her court filing caused a demoralizing disruption during a live court proceeding.

Because potential contemptuous language in an out-of-court filing is properly assessed under indirect contempt, those alleged to have included contemptuous language in such filings are entitled to a plenary proceeding in which due process is applied. While it could be argued that the show cause hearing afforded her with these rights, although the circuit judge allowed her to present rudimentary legal authority on why she should not be held in summary contempt and asked her what evidence she would put on at a possible trial, this fell short of what would have been required under a plenary hearing.

Corcoran was not permitted to conduct an investigation, call any witnesses on her behalf or cross-examine any witnesses presented against her. After presenting his own findings and finding her in summary contempt, the circuit judge denied Corcoran’s request to be heard and exited the courtroom, and only then allowed Corcoran to proceed on the record outside of his presence, and after making his decision.

This is not tantamount to the process that is due in a plenary proceeding. She should have had the opportunity to be advised of the charges against her, have a reasonable opportunity to present a defense or explanation, have the right to counsel and the right to testify and call witnesses.

Remand

The language Corcoran used in her motion accused the judge of being “uninformed with an apparent desire to harm and embarrass counsel” and insinuated that he was suffering from a medical issue or some other influence that rendered him “unfit to be on the Bench on that date.” He is clearly the judge being reviled by those words.

While it is true that a decision on whether he is so situated that he must recuse from all future proceedings involving Corcoran remains the judge’s to make, it is also true that in a trial for contempt, he cannot both present the case against Corcoran as well as decide whether her actions support a finding under the statute. It is for these reasons a different judge must preside.

Reversed and remanded.

Corcoran v. Commonwealth, Record No. 2029-24-4, May 19, 2026. CAV (unpublished opinion) (Duffan). From the Circuit Court of Page County (Funk). David B. Hargett (Hargett Law, PLC, on briefs), for appellant. Anna M. Hughes, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-213. 10 pp.

Full-Text Opinion
VLW 026-7-213