I have no doubt it applies, but the question is just how much it applies.

For instance, there are many criminal contempt cases that are handled just like Hoyt is handling this one. Private litigant brings motion and Hoyt rules on it. The US Attorney manual even talks about this.

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm00768.htm

So would the failure to “appoint” a prosecutor give Rosenthal an out? Beats the heck out of me. The rule seems mandatory, but I suspect there is some wiggle room for “judicial discretion.”

My bet is that Hoyt won’t jail Rosenthal. Could be very interesting if he does.

Rule 42 doesn’t speak to “contempt in criminal cases” but to “criminal contempt”; I assume that the Supreme Court knows the difference. (So does the 7th Circuit — there’s a 7th Circuit case, In re Troutt, applying Rule 42 to an indirect criminal contempt arising out of a civil case.)

Rule 37(b) deals with discovery order violations; this has gone a little farther than that. Absent any authority to the contrary, I think it’s safe to say that Rule 42 governs.

You’re applying a criminal law analysis to a civil matter. This is not a Rule 42 case. Judge Hoyt has the inherent authority to hold someone in contempt as well as authority under Rule 37(b) of the Federal Rules of Civil Procedure.

I agree that Rule 42 probably provides a good sketch of what due process requires but I don’t think it is determinative.

It all gets very confusing because of the use of the words “criminal” and “civil.” Rosenthal has a contempt action seeking criminal penalties which arises out of a civil action.

I think the bottom line is that despite what Tom says Hoyt could throw Rosenthal in the slammer if he wants. Whether Rosenthal could get out is a whole other question.

Thanks for the comment.

Whether the judge witnessed the contempt doesn’t appear to be part of the Rule 42 analysis.

The U.S. Supreme Court’s rule is the constitutional rule. The statute, ¬ß3691, broadens the right to a jury trial, but the contemnor must invoke the right.

Rule 42 is clear: the show cause order must give notice.

If the contemnor receives constitutional due process (which Chuck is receiving) but Rule 42 is violated in the process (and he doesn’t object), I doubt that that would justify habeas relief. I’d have to give that some more thought.

At best it seems like a gamble, unless there’s a silver-bullet case from the Fifth Circuit already.

The U.S. Supreme Court has said that so long as you don’t ask for more than 6 months in jail (Texas has adopted this rule), it is a minor offense and the right to a jury does not apply.

In Texas, it is not the show cause order than must give sufficient notice but it is the motion itself. I don’t know if this is the same in Federal court. Any defects would be grounds for a post conviction habeas.