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### STATE OF MICHIGAN

COURT OF APPEALS

In re Contempt of ANDRE W A. PATERSON.

CITIZENS UNITED AGAINST CORRUPT GOVERNMENT and ROBERT DAVIS,

Plaintiffs, UNPUBLISHED May 9, 2017

v No. 331359 Ingham Circuit Court STATE OF MICHIGAN, GOVERNOR, DEPARTMENT OF TREASURY, DEPARTMENT OF STATE POLICE, and BOARD OF CANVASSERS, LC No. 13-001195-AW

Defendants,
and

NEW ENERGY TO REINVENT AND DIVERSIFY FUND, also known as NERD FUND, RICHARD BAIRD, and MAYOR OF DETROIT,

Defendants-Appellees,
and

ANDREW A. PATERSON,

Appellant.

Before: O’B RIEN , P.J., and S ERVITTO and S TEPHENS , JJ.

P ER C URIAM

.

Andrew A. Paterson, the attorney representing the plaintiffs i n the underlying litigation related to this appeal, appeals the circuit court’s order findi ng him in criminal contempt of court.-2- For the reasons set forth below, we vacate the circuit court’s order finding him in criminal contempt of court and remand this matter for further proceeding s consistent with this opinion. 1

While a trial court’s decision t o hold an individual in contem pt of court is generally reviewed for an abuse of discretion, see, e.g., In re Contempt of Henry , 282 Mich App 656, 671; 765 NW2d 44 (2009), unpreserved procedural arguments, including those having constitutional implications, are reviewed under the plain error rule, People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). “To avoid forfe iture under the plain error ru le, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e. , clear or obvious, 3) and the plain error affected substantial rights.” Id . “Finally, once a defenda nt satisfies these three requirements, an appellate court must exercise its discretion i n deciding whether forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial procee dings independent of the defendant’s
innocence.” Id

.

“No person may be deprived of life, liberty, or property witho ut due process of law.” In re Contempt of Henry , 282 Mich App at 669. Actions f or civil contempt and actions for criminal contempt are distinct actions. A person accused of civil conte mpt is only entitled to “rudimentary due process, i.e., notice and an opportunity to pr esent a defense[.]” Porter v

Porter , 285 Mich App 450, 456-457; 776 NW2d 377 (2009). A person acc used of criminal contempt, however, is accused of a crime. Id . at 455. Consequently, he or she is entitled to “some of the due process safeguards of an ordinary criminal tri al.” Id . at 456. These safeguards include the right to be informed of the nature of the charge, t he right to be informed as to whether the contempt proceedings are civil or criminal, an adeq uate opportunity to prepare a defense, an opportunity to secure the assistance of counsel, th e right to produce witnesses, the right against self-inc rimination, and the right to have the cha rge proved beyond a reasonable
doubt. DeGeorge v Warheit , 276 Mich App 587, 592; 741 NW2d 384 (2007).

It is quite apparent, at least in our view, that the trial cou rt plainly erred by violating some, if not all, of these due process safeguards. Stated simp ly, Paterson was never informed that he was subject to criminal, as opposed to civil, contempt until the trial court found him in criminal contempt. Furthermore, we are of the view that Paters on was prejudiced by this plain error. The prejudice prong of t he plain error test “generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedi ngs.” Carines , 460 Mich at 763. Here, the complete lack of notice with respect to the possibili ty of criminal contempt, the complete lack of a meaningful opportunity to defend himself, an d the complete lack of access to counsel did affect the outcome of the lower court proceedings. The record reveals that the trial court found defendant in contempt of court in an effort to indu ce compliance with its earlier order to pay sanctions. Conseque ntly, civil contempt, not crim inal contempt, was appropriate, and it is our view that had defendant been afforded the safegua rds discussed above, the outcome

1 While Paterson is, arguably, not an aggrieved party for purposes of MCL 7.203, we nevertheless choose to address his appeal on the merits as a gr anted application for leave to appeal. Wardell v Hincka , 297 Mich App 127, 133 n 1; 822 NW2d 278 (2012).-3- of the lower-court proceedings c ould have been changed to refle ct that difference, which is a major difference in light of the fact that appellant is an atto rney. Additionally, such blatant constitutional violations in a criminal contempt proceeding do affect the fairness, integrity, and public reputation of the judicial proceedings. At a minimum, P aterson’s constitutional rights to notice, to present a defense, and to counsel were all violated during these brief proceedings. To the extent it is argued that these violations are irrelevant be cause Paterson admitted his failure to comply with the circuit court’s previous order, it is important that we not forget that this admission was in violation of his constitutional right against self-incrimination, yet another constitutional violation that took place during these proceedin gs. We therefore conclude that a plain error affecting substantia l rights occurred, and that thi s plain error requires reversal under
the facts and circumstances of this case. 2

Accordingly, we vacate the circuit court’s order finding Pater son in criminal contempt of court and remand for further pr oceedings. We do not retain jur isdiction.

/s/ Colleen A. O'Brien
/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens

2 We also reject any argument tha t Paterson waived these constit utional rights before the circuit court. Waiver requires an intentional relinquishment or abando nment of a known right, People v

Carter , 462 Mich 206, 215; 612 NW2d 144 ( 2000), and, because he was u naware of the fact that the proceedings against him were criminal in nature, it cannot be said that Paterson intentional relinquished or abandoned a known right.