Viator v. Miller

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 13, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 04-30814
__________________________
Heather C. Viator,
Plaintiff - Appellee,
versus
Wendell Miller, Individually and in his official capacity as Judge of the 31st Judicial District
Court; et al,
Defendants,
Wendell Miller, Individually and in his official capacity as Judge of the 31st Judicial District
Court,
Defendant - Appellant.
___________________________________________________
Appeal from the United States District Court
For the Western District of Louisiana
(No. 2: 03-CV-1273-PM-APW)
___________________________________________________
Before GARWOOD, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Judge Wendell Miller of the Louisiana 31st Judicial District Court appeals the imposition of
contempt sanctions by the United States District Court for the Western District of Louisiana. Judge
Miller was sanctioned in connection with his violation of a consent judgment prohibiting contact with

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appellee Heather Viator for the duration of her employment discrimination action against him. Judge
Miller contends for the first time on appeal that the $500 fine and gag order were criminal sanctions
imposed in violation of his due process right s and were not supported by the evidence. We now
affirm the judgment of the district court.
Although the gag order was clearly a civil contempt sanct ion, the $500 fine constitutes a
criminal contempt sanction because it was punitive rather than coercive or remedial. Smith v.
Sullivan, 611 F.2d 1050, 1052 (5th Cir. 1980); see also 3A CHARLES A. WRIGHT, NANCY J. KING &
SUSAN R. KLEIN, FEDERAL PRACTICE AND PROCEDURE § 704 (3d ed. 2004). However, it was a
“petty fine” that “the district court has been traditionally allowed to impose in a summary manner.”
Crowe v. Smith, 151 F.3d 217, 228 (5th Cir. 1998). The actions taken by the district court were
sufficient to fulfill the notice and opportunity to be heard requirements that are necessary to satisfy
due process. Taylor v. Hayes, 418 U.S. 488, 498–99 (citing Groppi v. Leslie, 404 U.S. 496, 502–03
(1972)). In any event, Miller made no objection below, either before or during the contempt hearing
or in his motion for reconsideration of the judgment of contempt, that his rights as a criminal
defendant were violated, and even if there were plain error in this respect, we woul d nonetheless
decline to reverse because affirmance would not seriously affect the fairness, integrity or public
reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 736 (1993).
Miller’s sufficiency of the evidence claim fails because the evidence before this Court supports
the finding that Miller willfully violated a clear and unambiguous order. Cooper v. Texaco, Inc., 961
F.2d 71, 72 n.3 (5th Cir. 1992). Miller’s remaining claims are without merit. We AFFIRM Miller’s
contempt sanctions.

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