In the Carroll Circuit Court

State of Indiana, ) Case No. 08C01-2210-MR-1

)
Plaintiff, ) The Honorable Frances C. Gull,
) Special Judge
v. )
)
Richard M. Allen, )
)
Defendant. )

Defendant’s Counsel’s Motion for Summary Denial

of the State’s Verified Information for Contemptuous Conduct

Counsel for the Defendant, Richard Allen, Andrew Baldwin and Bradley
Rozzi, by counsel, now come before the Court with their Motion for Summary
Denial of the State’s Verified Information for Contemptuous Conduct
(“Information”), filed on January 29, 2024. For the reasons that follow, the Court
should summarily deny the State’s Information.

Introduction

The State’s Information has many flaws. Not least among them is its failure
to allege, either directly or by inference, either Mr. Baldwin or Mr. Rozzi
committed any of the supposed offending acts willfully. See Ind. Code § 34-47-3-1
(defining indirect contempt as “willful disobedience” of a court order).
But the State’s information has two additional flaws that are fatal. First, to
the extent the State’s Information purports to allege indirect civil contempt, it
fails to allege any act injuring the State that a remedial or coercive contempt
sanction could redress. The State therefore lacks standing to pursue its
Information as one for indirect civil contempt, and this Court lacks jurisdiction
to consider it.
Second, because there is no available remedial or coercive contempt
sanction, any contempt sanction would necessarily be punitive and therefore for
a finding of indirect criminal contempt. But to pursue indirect criminal
contempt against Messrs. Baldwin and Rozzi, the State would have to file its
Information in a separate criminal case. It has not done so, and this Court has
no authority to punish Messrs. Baldwin and Rozzi for indirect criminal contempt
in this criminal case against Mr. Allen.1
Finally, were the Court to impose, without jurisdiction or authority to do so,
any necessarily punitive sanction on the State’s Information in this criminal
case against Mr. Allen, it would be at least the second time the Court has
interfered with Mr. Allen’s Sixth and Fourteenth Amendment rights to counsel.
See Strickland v. Washington, 466 U.S. 668, 683 (1984) (“The Court has
considered Sixth Amendment claims based . . . on state interference with the
ability of counsel to render effective assistance to the accused.” (Citations
omitted).)2

1This is the written motion required by Indiana Original Action 2(A), which
provides in relevant part:
[N]o petition for a writ of mandamus or prohibition will be entertained
unless the Relator has raised the jurisdictional question by written motion
which the trial court has denied or not ruled upon timely. The motion shall
allege the absence of jurisdiction of the respondent court or the failure of
the respondent court to act when it was under a duty to act.
2 At least one other time, of course, was when, on October 12, 2023, in an email, the
Court ordered Messrs. Baldwin and Rozzi to stop their work on Mr. Allen’s behalf
for at least a week. State interference with counsel in violation of the Sixth
Amendment is structural error for which prejudice is presumed. E.g., Weaver v.
Massachusetts, 582 U.S. 286, 308 (2017). See also Strickland, 466 U.S. at 686
(“Government violates the right to effective assistance when it interferes in certain
ways with the ability of counsel to make independent decisions about how to
conduct the defense.”); Geders v. United States, 425 U.S. 80, 91 (1976) (Sixth
Amendment right to counsel violated without showing of prejudice for trial judge’s
interference with defendant’s right to consult with counsel).
Notwithstanding so-called Younger abstention because it may well not apply—
see generally, Younger v. Harris, 401 U.S. 37 (1971)—further state interference with
his lawyers could well compel Mr. Allen to seek federal habeas relief under 28
U.S.C. 2241(c)(3) in the form of an injunction. Were Mr. Allen to prevail in that
undertaking, a conditional writ of habeas corpus, though using more formal legal
. . . Footnote continued next page . . .
–[2]–
1. The State’s Information has not alleged an injury a civil contempt
sanction can remedy; the State therefore lacks standing to pursue its
Information as one for civil contempt; and this Court lacks jurisdiction
to consider it.

a. The State’s Information attempts to allege Messrs. Baldwin and Rozzi

committed acts of indirect contempt.

As a matter of law almost older than dirt, there are two kinds of contempt:
direct and indirect.
Contempt of court generally involves disobedience of a court or
court order that “undermines the court's authority, justice, and dignity.”
In re A.S., 9 N.E.3d 129, 131 (Ind. 2014) (citing State v. Heltzel, 552
N.E.2d 31, 34 (Ind. 1990)). There are two kinds of contempt: direct
contempt and indirect contempt. Id. Indirect contempt, which is at issue
in this case, involves those acts “committed outside the presence of the
court ‘which nevertheless tend to interrupt, obstruct, embarrass or
prevent the due administration of justice.’” Id.at 32. (quoting 6 Ind. Law
Encyc. Contempt §2 (1958)).

Reynolds v. Reynolds, 64 N.E.3d 829, 832 (Ind. 2016). It should not be a matter
of dispute that the State’s Information at least attempts to allege Messrs.
Baldwin and Rozzi committed indirect contempt. None of the acts the State’s
Information alleges were contemptuous occurred in the Court’s presence or
about which the Court, itself, has knowledge. See In re Nasser, 644 NE 2d 93, 96
(Ind. 1994) (direct contempt depends on “the judge possess[ing] personal
knowledge of the contemptuous act.” (Citing Hopping v. State, 637 N.E.2d 1294,
1297 (Ind. 1994)).

. . . Continued from previous page . . .

language, would look something like: “Release Mr. Allen or leave his lawyers alone.”
But win or lose, federal court is not a railroad siding Chief Justice Rush likely had
in mind when she said at the hearing on the second original action involving this
Court in this case: “My concern is getting this case back on track.” Hearing,
January 18, 2024, at c. 14:25, State ex rel. Allen v. Carroll Cir. Court, Indiana
Supreme Court No. 23S-OR-311.
–[3]–
 b. Sanctions for indirect civil contempt must be remedial or coercive for
the benefit of an aggrieved party; sanctions for indirect criminal
contempt are punitive.

As a second matter of law almost older than dirt, direct and indirect
contempt each come in two varieties: civil and criminal. Sanctions for civil
contempt are “for the benefit of the party who has been injured or damaged by
the failure of another to conform to a court order issued for the private benefit of
the aggrieved party.” In re A.S., 9 N.E.3d 129, 132 (Ind. 2014) (quoting Duemling
v. Fort Wayne Community Concerts, Inc. (1963), 243 Ind. 521, 524, 188 N.E.2d
274, 276). Sanctions for civil contempt also must be “either remedial or coercive.”
In re A.S., 9 N.E.3d at 132 (citing Duemling, 234 Ind. at 524, 188 N.E.2d at 276);
see also State ex rel. McMinn v. Gentry (1951), 229 Ind. 615, 619, 100 N.E.2d 676,
678 (“The object of a civil contempt is the enforcement or protection of the rights
of the complainant, and only a coercive or remedial judgment may be entered.”).
Federal authority is no different. See Gompers v. Sears Roebuck & Co., 211 U.S.
418, 441 (1911) (“[F]or civil contempt the punishment is remedial, and for the
benefit of the complainant.”) (on certiorari to the District of Columbia Court of
Appeals); accord United Mine Workers of America v. Bagwell, 512 U.S. 821, 828
(1994) (on certiorari to the Virginia Supreme Court); De Manez v. Bridgestone
Firestone North American Tire, LLC, 533 F.3d 578, 590 (7th Cir. 2008).
Criminal contempt, on the other hand, is “‘an act directed against the
dignity and authority of the court which obstructs the administration of justice
and which tends to bring the court into disrepute or disrespect.’” State v. Heltzel,
552 N.E.2d 31, 34 (Ind. 1990); accord In re A.S., 9 N.E.3d at 132. Sanctions for
criminal contempt are intended to vindicate the authority of a court. E.g.,
Cowart v. White, 711 N.E.2d 523, 530 n.3 (Ind. 1999); Brown v. Brown (1932),
205 Ind. 664, 666, 187 N.E. 836, 837.

–[4]–
 c. The State’s Information alleges no injury a civil contempt sanction can
meaningfully redress, and the State’s resulting lack of standing to
pursue its Information means the Court has no jurisdiction to consider
it.
Even were the Court to take as true every allegation of the State’s
Information, no sanction imposed for any of the alleged contemptuous acts would
remedy an injury to the State; nor would it coerce Messrs. Baldwin or Rozzi to
comply with any order of the Court the State’s Information alleges they violated.
See Ind. Code § 34-47-3-5(c) (governing indirect contempt) (“The court shall, on
proper showing, extend the time provided under subsection (b)(3) to give the
defendant a reasonable and just opportunity to be purged of the contempt.”
(Emphasis added)); Reynolds, 64 N.E.3d at 835 (“[C]ivil contempt orders avoid
punishing the contemnor by allowing the party to be purged of contempt.”
(Citation omitted).).
The State therefore has no standing to pursue its Information. “The
standing requirement is a limit on the court's jurisdiction which restrains the
judiciary to resolving real controversies in which the complaining party has a
demonstrable injury.” Schloss v. City of Indianapolis, 553 N.E.2d 1204, 1206
(Ind. 1990); accord Hammes v. Brumley, 659 N.E.2d 1021, 1029 (Ind. 1995);
Solarize Indiana, Inc. v. Indiana Gas & Electric Co., 182 N.E.3d 212, 219 (Ind.
2022). “[O]nly those persons who have a personal stake in the outcome of the
litigation and who show that they have suffered or were in immediate danger of
suffering a direct injury as a result of the complained-of conduct will be found to
have standing.” State ex rel. Cittadine v. Indiana Dep’t of Transp., 790 N.E.2d
978, 979 (Ind. 2003). “Absent this showing, complainants may not invoke the
jurisdiction of the court.” Id.; accord Miller v. State, 19 N.E.3d 779, 783 (Ind. Ct.
App. 2014).
Without an injury meaningfully redressable by a civil contempt sanction,
the State simply does not have standing to pursue its Information, and this

–[5]–
Court does not have jurisdiction to consider it. Miller, 19 N.E. 3d at 784
(“Because Miller did not have standing to bring his contempt motion, the trial
court did not have jurisdiction and should have dismissed his motion.”).
Accordingly, the Court should summarily deny the State’s Information.

2. The State’s Information can only be seeking punitive sanctions for

criminal contempt; the State filed it in the wrong place; and this Court
has no authority to impose a criminal sanction in this criminal case
against Mr. Allen.

a. Without an available remedial or coercive sanction, any sanction

imposed by the Court, whether imprisonment or a fine, would be
punitive, thus making the object of the State’s Information a finding of
indirect criminal contempt.

As a third matter of law almost older than dirt, “a fixed sentence of

imprisonment is punitive and criminal if it is imposed retrospectively for a
completed act of disobedience such that the contemnor cannot avoid or
abbreviate the confinement through later compliance.” Bagwell, 512 U.S. at
828–29 (cleaned up) (quoting and citing Gompers, 221 U.S. at 443). Similarly, “a
flat, unconditional fine totaling even as little as $50 announced after a finding of
contempt is criminal if the contemnor has no subsequent opportunity to reduce
or avoid the fine through compliance.” Bagwell, 512 U.S. at 829 (cleaned up);
accord De Manez, 533 F.3d at 590.

b. An information for indirect criminal contempt must be filed in a

separate criminal action.

As a fourth matter of law almost older than dirt, if the State, by its
Information, is seeking punitive sanctions for indirect criminal contempt, it filed
its Information in the wrong place. “A proceeding for indirect criminal contempt”
must “be filed as an independent action” and “must also be prosecuted by the
State.” Allison v. State ex rel. Allison (1963), 243 Ind. 489, 494, 187 N.E.2d 565,
568; accord Thompson v. Thompson, 811 N.E.2d 888, 906 (Ind. Ct. App. 2004).
See also State v. Heltzel, 552 N.E. 2d 31, 32 (Ind. 1990) (“William Heltzel and

–[6]–
Mark Kiesling were charged with indirect contempt of court . . . in an
information filed by the Lake County Prosecutor . . . .”); McMinn, 229 Ind. at
619, 100 N.E.2d at 678 (“ A charge of criminal contempt should be prosecuted by
the State against the defendant, in an independent action . . . .”); Denny v. State
ex. inf. Brady (1932), 203 Ind. 682, 706, 182 N.E. 313, 321 (“[T]he information for
a criminal contempt should be entitled State of Indiana vs. the defendant and
filed as an independent action and prosecuted by the State.”); Jones v. State, 847
N.E.2d 190, 195 (Ind. Ct. App. 2006) (“[I]n a separate action, the State charged
Jones with indirect contempt, under Indiana Code Sections 34-47-3-1 and 34-47-
3-5, for her failure to appear at the October 7th deposition.” (Emphasis added)).3

c. The Court has no authority to impose any punitive sanction for

indirect criminal contempt in this criminal case against Mr. Allen.

The Court simply may not impose any punitive sanction for what could only
be a finding of criminal contempt in this criminal case against Mr. Allen. That
would amount to a conviction and punishment on a charge the State has not
made. The situation would be no different from that in McMinn: “McMinn was
convicted on a charge not made, which is a ‘sheer denial of due process.’ DeJonge
v. Oregon (1937), 299 U.S. 353. See also Thornhill v. Alabama (1940), 310 U.S.
88. Therefore, the judgment and commitment issued thereon are void. Johnson
v. Zerbst (1938), 304 U.S. 458.” 229 Ind. at 620, 100 N.E.2d at 678 (parallel
citations omitted).
Accordingly, for this second reason, the Court should summarily deny the
State’s Information.

3Not only was the State’s Information filed in the wrong place but, as written, it
also fails to make out a criminal charge. It does not allege Messrs. Baldwin and
Rozzi acted willfully, omitting a material element of indirect contempt; this is not
remedied by any reference in the Information to § 34-47-3-1, which defines indirect
contempt as “willful disobedience” of a court order.
–[7]–
 Conclusion

For the foregoing reasons, Messrs. Baldwin and Rozzie respectfully request
the Court summarily deny the State’s Verified Information for Contemptuous
Conduct.

/s/ Michael K. Ausbrook

Attorney No. 17223-53
Indiana University Maurer School of Law
Federal Habeas Project
211 South Indiana Avenue
Bloomington, IN 47405
Telephone: 812.322.3218
Email: [email protected]
Counsel for Andrew Baldwin and Bradley Rozzi

Certificate of Service

I affirm under penalty for perjury that on February 7, 2024, the foregoing
was served on opposing counsel, Nicholas McLeland, by e-filing.

/s/ Michael K. Ausbrook

Attorney No. 17223-53

–[8]–