Contempt Actions Debated in High Court

WASHINGTON (CN) - As lawyers debated whether abuse victims must bring civil contempt actions in the government's name, the Supreme Court on Wednesday tried to discern how the case would affect victims' ability to enforce restraining orders. "How does it work?" Justice Anthony Kennedy asked. "That is what we want to know."

Robertson v. U.S. ex rel. Watson challenges a victim's ability to bring criminal contempt charges in the District of Columbia when abusers violate a restraining order. The justices must decide whether criminal contempt cases should be brought in the name of the victim or the state.

The case stems from a civil protection order against John Robertson, who attacked and threatened to kill Wykenna Watson in March 1999. Three months later, he attacked her again, putting her in intensive care with severe lye burns.

A federal grand jury indicted Robertson on assault charges, and he agreed to plead guilty to attempted aggravated assault in exchange for a dismissal of the remaining charges and a promise by the U.S. Attorney's Office not to prosecute over the second incident.

Watson, with the help of the D.C. Attorney General's Office, filed a motion to hold Robertson in criminal contempt for having violated the protective order with the second attack. She won in federal court, and Robertson appealed his conviction and sentencing.

His attorney, Jaclyn Frankfurt, argued that the Constitution doesn't allow Watson to prosecute Robertson for criminal contempt, because that's something only the government can do.

"In our view, the party in a criminal action has to be the United States," she told the justices. And because only the government can prosecute, she said, the United States was bound to the terms of the plea agreement. Thus, Robertson's contempt conviction violated the principles of due process and separation of powers, Frankfurt argued.

Justice John Paul Stevens pointed out that private parties have been initiating contempt proceedings for "quite some time" in the District of Columbia. "If [your argument] is true," he told Frankfurt, the district has been "following an unconstitutional practice for about 25 years. ... And nobody thought about it in all this time?"

Watson's attorney, Robert Long Jr., argued that private prosecutions don't present a constitutional problem and are actually approved by the D.C. legislature and courts.

Justice Stephen Breyer rephrased the claim: "I think you would like to make the argument, which I would like to hear: Forget the United States. The Constitution permits this woman to bring the case as a private citizen," he said. "Now, if you are right about that, the plea agreement drops out, because nobody made a plea agreement with her.

"That is the argument you want to make at some point," he added, prompting laughter in the court.

Chief Justice John Roberts and Justices Sonia Sotomayor, Kennedy and Breyer wanted Long to explain whether Watson and other non-government prosecutors would face the same heightened standards as state prosecutors, including the requirement that they give defendants exculpatory evidence.

Long had trouble outlining the details, and he drew criticism from Scalia and Breyer for suggesting that private individuals offered a solution to the shortage and massive caseloads of public prosecutors.

Breyer asked him to suppose California tried to solve its budget woes by eliminating public prosecutors and forcing victims to prosecute their own crimes. "Is that constitutional?" he asked.

Long acknowledged "serious due process problems" with Breyer's hypothetical, but said the framers of the Constitution might not have flinched. Private prosecutors were common at the time, he said.

Ultimately, he urged the justices to either dismiss the case as "improvidentally granted" or affirm the contempt ruling against Robertson.

Solicitor General Elena Kagan also took tough questions from the bench, particularly when she argued that the plea agreement wasn't binding on other parts of the government.

"That's -- that's absolutely startling," Chief Justice Roberts interjected. "You are a defendant. You have to go to all ... the U.S. Attorney's Offices and say, will you agree to this and get everybody to sign off?"

Kagan's laid out her position, which falls between the two sides. She agreed with Robertson that Watson had been acting for the state, but she said Robertson still loses, because the plea agreement bound only the U.S. attorney's office, not Watson, who is "representing the D.C. court system."

"You draw a distinction between the D.C. Circuit ... and the United States?" Stevens asked, incredulous.

"Yes," Kagan replied.

Scalia likewise seemed surprised that Kagan would consider Watson an agent of the court, not the executive.

"Who would you like the person to be an agent of, Justice Scalia?" Kagan shot back, to laughter, but she quickly apologized after Chief Justice Roberts reminded her that questions usually go the other way.

Advocates of domestic-violence victims are concerned that a ruling for Robertson would greatly impede private prosecutions and would strip victims of an important weapon in enforcing protection orders.

If the justices say individuals must bring these cases in the government's name, advocates say, victims will be forced to meet state prosecutors' heightened standards -- a challenge for anyone filing pro se, as most victims do.

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