     Case: 14-30887       Document: 00512780901        Page: 1    Date Filed: 09/24/2014




                   REVISED September 24, 2014
           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                  FILED
                                                                            September 19, 2014

                                      No. 14-30887
                                                                               Lyle W. Cayce
                                                                                    Clerk


In re: GLAY H. COLLIER, II

                                                        Petitioner.


    Petition for a Writ of Mandamus from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 5:11-CV-01670


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Glay H. Collier, II (“Collier”), a Louisiana licensed attorney practicing
consumer bankruptcy law, filed this petition for a writ of mandamus
challenging the district court’s imposition of a forty-eight hour jail sentence for
his civil contempt of court. After this emergency mandamus petition was filed,
we stayed the execution of the sentence pending our review on the merits. We
now GRANT Collier’s petition and issue a Writ of Mandamus VACATING the
district court’s order.
                                             I.
       The order in question arises out of an action that was pending in the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Western District of Louisiana, Wheeler v. Collier. 1               In that case, a client
(“Wheeler”) sued Collier, along with his law partner and law firm, for
mishandling client funds in violation of 11 U.S.C. § 362(a) and § 524.
       Wheeler moved for summary judgment. On May 22, 2014, the district
court granted summary judgment in favor of Wheeler on the merits of the §
362 claim. Regarding the § 524 claim, the court held that it had the power to
punish a violation of § 524 under 11 U.S.C. § 105. 2 The court deferred deciding
the merits of the § 524 claim in order to hold a hearing.
       The court held that hearing on July 14, 2014. The court entered a
contempt order under § 105, finding that Collier violated § 524. The district
court imposed fines and ordered Collier to cease all advertising for “no money
down” Chapter 7 bankruptcy legal services. The court set a deadline of July 21,
2014 for Collier to stop all advertisements for these services.
       On July 23, 2014, the district court ordered Collier to “show cause as to
why he should not be held in civil contempt, including fines and confinement,
for violating [the] court’s [July 14th] [o]rder” requiring him to stop the
advertisements. 3 The hearing was set for July 28, 2014.
       At the July 28th hearing, Collier appeared with counsel. Testimony was
produced that revealed that Collier had stopped all television advertisements
by the July 21st deadline. However, five different websites, which included
twenty-eight individual advertisements within those pages, were active after
the deadline. Three of the websites were taken down on July 23, 2014. The


       1 U.S.D.C. No. 5:11-cv-01670.
       2 The parties agreed that § 524 did not provide a private cause of action. 11 U.S.C. §
105 states in pertinent part, “The court may issue any order, process, or judgment that is
necessary or appropriate to carry out the provisions of this title. No provision of this title
providing for the raising of an issue by a party in interest shall be construed to preclude the
court from, sua sponte, taking any action or making any determination necessary or
appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.”
       3 (emphasis added).


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advertisements on the other two websites, which allegedly violated the court’s
July 14th order, remained in place through the morning of the hearing. Collier
was successful in stopping one of the advertisements during the hearing. He
was unable, however, to stop the last advertisement by the time the hearing
concluded. Collier, through counsel, informed the court that he had taken all
available steps to cease the final advertisement.          First, Collier had his
advertising agency call a representative of the website and request the
advertisement be removed. A representative of Collier’s advertising agency
testified that the website representative informed him it usually takes between
twenty-four and forty-eight hours to remove an advertisement from the
website. Additionally, Collier’s attorney stated in open court that he and
Collier spoke with a representative of the website and requested the
advertisement be removed.
      At the conclusion of the hearing, the district court ruled:
                  After deliberation and consideration of the
            number of violations, as well as the defendant’s direct
            disregard for the authority of the Court and its July
            14, 2014 order mandating that the parties McBride &
            Collier and Glay H. Collier, II, were held in contempt
            of court under Section 105 in the Wheeler versus
            Collier matter, the Court further directed the
            defendants to remove all advertisements of Chapter 7
            No Money Down consumer bankruptcies.
                  As a result of the violation of this Court’s order,
            without any reasonable excuse other than “I forgot,”
            Glay H. Collier is hereby ordered into the custody of
            the U.S. Marshal Service for a period of 48 hours for
            the violations of this Court’s previous contempt order
            regarding the removal of advertising of Chapter 7
            consumer bankruptcy under the heading of No Money
            Down.


The district court then remanded Collier to the custody of the U.S. Marshal to

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begin service of his sentence. This emergency petition for a writ of mandamus
followed, seeking review of this order. 4
                                             II.
       “The remedy of mandamus is a drastic one, to be invoked only in
extraordinary situations.” 5 The writ is appropriately issued when there is a
clear abuse of discretion or judicial usurpation by the court against which
mandamus is sought. 6
                                             III.
       Collier argues that the issuance of the writ is proper in this case, because
the district court imposed a criminal sentence without providing the proper
procedural protections. It is clear, argues Collier, that the contempt order was
criminal in nature and not civil. Collier points out that the district court
explicitly noted the hearing was for civil contempt in its July 23rd order and
on the record during the hearing, but then the district court levied a punitive
fixed term of imprisonment which is ordinarily only proper for criminal
contempt.
       Before a writ of mandamus can be issued, three conditions must be
satisfied. 7 First, the petitioner “must have no other adequate means to attain
the relief he desires . . . .” 8 Second, the petitioner “[must] satisfy the burden of
showing that his right to issuance of the writ is clear and undisputable.” 9
Finally, “. . . the issuing court, in the exercise of its discretion, must be satisfied




       4  Collier seeks review of a separate part of this order through another petition for a
writ of mandamus filed on September 9, 2014, No. 14-31048.
        5 In re Times Picayune, L.L.C., 561 F. App’x 402, 402 (5th Cir. 2014) (quoting Kerr v.

U.S. Dist. Court, 426 U.S. 394, 402 (1976)).
        6 Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).
        7 Id.
        8 Id. (alteration in original).
        9 Id. at 381 (alterations and internal quotation marks omitted).


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that the writ is appropriate under the circumstances.” 10
      As to the first condition, we are satisfied that Collier has no other
adequate means to attain the relief he seeks.                As indicated, Collier was
remanded to the custody of the U.S. Marshal following the hearing to serve his
sentence. Due to the nature of the forty-eight hour jail sentence and the
obvious time restrictions to obtain relief, Collier “has no other adequate means
to attain the relief he desires.”
      Next, Collier must show that his right to issuance of the writ is “clear
and undisputable.” Under the Cheney standard, “If the district court clearly
abused its discretion . . . [in imposing an unconditional forty-eight hour prison
sentence for civil contempt,] then [Collier’s] right to issuance of the writ is
necessarily clear and indisputable.” 11 To determine whether the district court
clearly abused its discretion in its order, we must first consider whether the
contempt proceeding and the punishment imposed was civil or criminal in
nature.
      Contempt is characterized as either civil or criminal depending upon its
“primary purpose.” 12
             If the purpose of the sanction is to punish the
             contemnor and vindicate the authority of the court, the
             order is viewed as criminal. If the purpose of the
             sanction is to coerce the contemnor into compliance
             with a court order, or to compensate another party for
             the contemnor’s violation, the order is considered
             purely civil. Imprisonment is an appropriate remedy
             for either civil or criminal contempt, depending on how
             it is assessed. If the prison term is conditional and
             coercive, the character of the contempt is civil; if it is
             backward-looking and unconditional it is criminal. 13

      10 Id.
      11 In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc).
      12 In re Bradley, 588 F.3d 254, 263 (5th Cir. 2009).
      13 Id. (internal citations omitted).


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While a court’s characterization of its proceedings is a factor to be considered
in determining the type of contempt, it is not conclusive. 14
      Determining the difference between criminal and civil contempt is
crucial because the law provides heightened protections for punitive criminal
contempt. 15 Governed by Federal Rule of Criminal Procedure 42, criminal
contempt must be accompanied with notice to the contemnor either in open
court, an order to show cause, or an arrest warrant. 16 This notice must “state
the time and place of the trial, allow the defendant reasonable time to prepare
a defense, and state the essential facts constituting the charged criminal
contempt and describe it as such.” 17 The rule also requires the contempt
citation be prosecuted by an attorney for the government, or another
attorney. 18 Finally, the contemnor is entitled to a jury trial in any case where
federal law so provides. 19 In addition to procedural differences, there are
evidentiary differences. “[C]ivil contempt orders must satisfy the clear and
convincing evidence standard, while criminal contempt orders must be
established beyond a reasonable doubt.” 20
      In the present case, the district court, in its order for Collier to show
cause, identified the hearing as “civil contempt.” Additionally, the hearing
transcript reflects two separate occasions where the district court judge orally
confirmed the hearing was a civil contempt proceeding.
      Notwithstanding the district court’s own characterization, it is clear to



      14   Lewis v. S.S. Baune, 534 F.2d 1115, 1119 (5th Cir. 1976).
      15   United States v. Puente, 558 F. App’x 338, 341 (5th Cir. 2013) (per curiam).
        16 Fed. R. Crim. P. 42(a)(1).
        17 Id. (emphasis added).
        18 Id.
        19 Id.; Rule 42(b)—which provides for summary disposition if contempt is committed

in the judge’s presence—does not apply here.
        20 Puente, 558 F. App’x at 341 (internal citation omitted).


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us that the proceeding and sanction should be characterized as criminal rather
than civil. First, the sanction was for an unconditional term of imprisonment.
This amounts to a punitive sanction for past violations of the order, not to
coerce Collier into compliance. Second, the evidence presented at the hearing
does not show that Collier could have taken additional steps to comply with
the court’s order by the time he was remanded into custody. He had all
advertisements removed except one, and the termination of the final
advertisement was “just a matter of time.” Even the court acknowledged that
removal of the final advertisement was “in progress.” Third, in its reasoning,
the district court cited “the violation” of the court’s order (not the continued
non-compliance) as the basis for its finding of civil contempt. Finally, even if
the district court could have found beyond a reasonable doubt that Collier
willfully violated the court’s order, there is no indication in the record that the
district judge made that determination or that he weighed the evidence against
that heightened standard.
      As a result, we are satisfied that the primary purpose of the contempt
order was to punish the contemnor and vindicate the authority of the court.
The contempt order is criminal in nature. Because the district court failed to
provide the proper procedural protections, Collier has shown that his right to
the issuance of the writ is clear and undisputable.
      Finally, in order for us to issue this extraordinary remedy, we must be
satisfied that the writ is appropriate under the circumstances. Given that
Collier’s liberty was taken away without the benefit of the procedural
protections provided by law, and due to the immediacy of the punishment, we
are satisfied that the writ must be issued in this case.
                                       IV.
      The district court clearly abused its discretion when it held Collier in


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criminal contempt without providing him the procedural protections required
by law. We, therefore, GRANT Collier’s petition and issue a Writ of Mandamus
VACATING the district court’s July 28, 2014 order finding Collier in contempt
and imposing a forty-eight hour jail sentence. We leave to the district court
entry of any further order necessary to effectuate our ruling.




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