COMMANS v. DUNBAR

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

DANIEL COMMANS, Plaintiff/Appellant,

v.

HONORABLE JUDGE PETER M. DUNBAR, HONORABLE JUDGE
MITCHELL KALAULI, LAKE HAVASU MUNICIPAL COURT,
Defendants/Appellees.

No. 1 CA-CV 25-0256
FILED 02-06-2026

Appeal from the Superior Court in Mohave County
No. S8015CV202402332
The Honorable Steven C. Moss, Judge

REVERSED

COUNSEL

Whitney Whitney Baldridge Atkinson, Kingman
By Bryan R. Whitney, Christopher Stafford
Counsel for Plaintiff/Appellant

Doyle Hernandez Millam, Phoenix
By William H. Doyle, Carlos A. Hernandez, Emily S. Morgan
Counsel for Defendant/Appellee
 COMMANS v. DUNBAR, et al.
Opinion of the Court

OPINION

Judge Jennifer M. Perkins delivered the opinion of the Court, in which
Judge Kent E. Cattani joined. Presiding Vice Chief Judge David D.
Weinzweig concurred in part and dissented in part.

P E R K I N S, Judge:

¶1 Daniel Commans appeals his conviction and punishment for
contempt of court for providing a vulgar email address with a coded insult
to the prosecutor during a virtual court hearing. We reverse because
Commans’ behavior in providing the email address, though sophomoric,
did not warrant a contempt finding, much less 180 days in jail.

FACTS AND PROCEDURAL BACKGROUND

¶2 On August 29, 2024, the Lake Havasu Municipal Court held
an arraignment hearing for Commans on misdemeanor charges for
resisting arrest and criminal trespass. Commans attended virtually and was
not represented by counsel. At the outset of the hearing, the judge asked
Commans to provide an email address. Commans provided two email
addresses, stating that he had trouble getting emails in the past. He spelled
out the second one: “Y-A-E-G-R-S-U-X-C-O-X-6-9-6-9-6-9@gmail.com.” To
confirm, the judge read it back letter by letter.

¶3 Neither the judge nor the prosecutor, Charles Yaeger, reacted
to the email address on the record, and the hearing proceeded
uninterrupted. The court appointed an attorney to represent Commans and
continued the arraignment to September 12, 2024. Later that day, the court
issued a written order notifying Commans that, at the September 12
hearing, he would have to “show cause why [he] should not be held in
contempt of Court for providing the . . . email address.”

¶4 At the September 12 hearing, Commans accepted a plea deal
resulting in a sentence of 180 days in jail on the misdemeanor charges. The
court then stated it had already found Commans in “direct contempt,” so
only sentencing was at issue. His attorney argued the punishment should
be mitigated because the email address was protected speech under the
First Amendment to the United States Constitution. Commans himself
asserted it was a real email address. The court imposed the maximum

2
 COMMANS v. DUNBAR, et al.
Opinion of the Court

allowable punishment of 180 days for contempt to run consecutive to any
other jail time. In doing so, the court stated: “[T]here is free speech. The
Court is a little bit different. You don’t get to say anything you want. This
was vulgar. It was directed at an officer of the Court clearly designed for
that purpose.”

¶5 Commans petitioned the superior court for special action
relief, arguing that he was not afforded an opportunity to present evidence
and that the contempt order improperly restricted protected speech. After
a hearing, the superior court affirmed the contempt conviction. The
superior court concluded that Commans had received adequate due
process because summary disposition is appropriate for a direct contempt
committed in the court’s presence. And the superior court concluded that
the email address was not protected speech, but rather unprotected
“fighting words.” Commans appealed from the superior court’s order. The
superior court stayed the execution of Commans’ contempt punishment
until the resolution of this appeal. We have jurisdiction over Commans’
appeal from the superior court’s denial of special action relief under
Arizona Revised Statutes Section 12-2101(A)(1). See Bridgeman v. Certa, 251
Ariz. 471, 474–77, ¶¶ 7–14 (App. 2021).

DISCUSSION

¶6 Commans argues that the First Amendment protected his
speech, and that the superior court erred by determining that his speech
constituted unprotected “fighting words.” See Citizen Publ’g Co. v. Miller, 210 Ariz. 513, 519, ¶ 24 (2005) (speech is unprotected when it amounts to
personally abusive epithets “likely to provoke [a] violent reaction” from its
addressee, generally limited to face-to-face interactions).

¶7 We agree with Commans that his speech did not constitute
“fighting words.” There was no indication that Commans’ words provoked
or were likely to provoke a violent reaction from people listening to the
virtual hearing. His speech remained subject to First Amendment
protections.

¶8 But Commans was not entitled to use vulgarity without
repercussion in a courtroom setting. See Zal v. Steppe, 968 F.2d 924, 929 (9th
Cir. 1992) (“[T]he trial judge is charged with preserving the decorum that
permits a reasoned resolution of issues. Zealous counsel cannot flout that
authority behind the shield of the First Amendment.”). Thus, the court did
not violate the First Amendment. Regardless, the municipal court judge
abused his discretion by holding Commans in contempt because (1)

3
 COMMANS v. DUNBAR, et al.
Opinion of the Court

Commans’ conduct under these circumstances did not justify it, and (2) the
court did not provide him an opportunity to challenge the holding.
Although Commans has not raised these errors on appeal, “we will not
ignore [fundamental error] when we find it.” State v. Fernandez, 216 Ariz.
545, 554, ¶ 32 (App. 2007).

I. Commans’ conduct did not constitute contempt under Arizona law

¶9 By rule, an Arizona court may hold a person in criminal
contempt if that person:

(a) willfully disobeys a lawful writ, process, order, or
judgment of a court by doing or not doing an act or thing
forbidden or required; or

(b) willfully engages in any other unreasonable conduct that
obstructs the administration of justice or lessens the court’s
dignity and authority.

Ariz. R. Crim. P. 35.1; see also A.R.S. § 12-864 (contempt not specifically
enumerated in criminal statutes may be punished in conformity with
practice and common law).

¶10 Here, the court never told Commans not to give or repeat the
email address he provided. So he did not willfully disobey a court order.
The email address drew no attention until after the hearing and thus could
not have obstructed the administration of justice. Accordingly, the relevant
inquiry is whether, under Rule 35.1(b), Commans “willfully engage[d] in
any other unreasonable conduct that . . . lessen[ed] the court’s dignity and
authority.” And we consider the totality of the circumstances to determine
whether Commans’ conduct warranted a contempt holding under that part
of Rule 35.1(b).

¶11 Two cases provide helpful guidance. In In re Little, 404 U.S.
553, 554 (1972), the United States Supreme Court invalidated a contempt
order imposed on a criminal defendant for stating during trial that “the
court was biased, [] had prejudged the case[,] and that [the criminal
defendant] was a political prisoner.” The contempt order was governed by
a statute that made any behavior “directly tending to interrupt [the court’s]
proceedings, or to impair the respect due to its authority” punishable for
contempt. Id. at 555 n.1 (emphasis added). The Supreme Court observed
that vehement language alone does not confer “the power to punish for
contempt,” and it invalidated the contempt order because the defendant
had not “disobeyed any valid court order, talked loudly, acted boisterously,

4
 COMMANS v. DUNBAR, et al.
Opinion of the Court

or attempted to prevent the judge or any other officer of the court from
carrying on his court duties.” Id. at 555–56.

¶12 In Hirschfeld v. Superior Ct., 184 Ariz. 208 (App. 1995), the
superior court held in contempt an attorney representing a father in a
custody matter. The attorney had physically harassed the mother by
following her around the judge’s chambers while demanding to know the
child’s whereabouts in an abusive manner. Id. at 209–10. This Court
affirmed, concluding that harassing and intimidating litigants, witnesses,
attorneys, and jurors in or near the courtroom lessens the dignity and
authority of the court. Id. at 211–12. Citing Little, this Court warned,
however, that the contempt power “should be used with caution,” and
should not “be pressed beyond reasonable limits.” Id. at 215–16.

¶13 Here, Commans was not loud or boisterous—he calmly
spelled out the email address. See Little, 404 U.S. at 555–56. Commans’
conduct did not disrupt the proceeding—the vulgarity of the email address
went unnoticed until after the hearing. He did not harass or intimidate
anyone—the childish insult may have embarrassed the prosecutor, but it
did not intimidate or harass him. See Hirshfeld, 184 Ariz. at 211–12. And
Commans received no warning against using offensive or insulting
language in the courtroom. If Commans had received such a warning,
providing the vulgar email address would have constituted a more direct
challenge to the court’s authority and been a greater affront to the court’s
dignity and authority. The lack of a warning weighs against holding him in
contempt.

¶14 The superior court affirmed the municipal court’s contempt
holding in part because Commans had “induced the court” to restate the
email address. But the municipal court judge’s personal involvement by
repeating the email address could not serve as a basis for the contempt
holding because a judge in that position must refer the matter to another
judge to make such a decision. Ariz. R. Crim. P. 35.4(b) (a judge must recuse
himself and transfer a contempt matter to another judge if based on conduct
involving disrespect to the judge or conduct that the judge participated in).

¶15 In short, although the content of Commans’ email address
was inappropriate, he did not disrupt any proceeding, harass or intimidate
anyone, or disregard any court directive. Even resolving all reasonable
inferences against Commans, the totality of the circumstances here did not
justify holding him in contempt, much less justify imposing a six-month jail
sentence.

5
 COMMANS v. DUNBAR, et al.
Opinion of the Court

II. Contempt by summary disposition under Rule 35.2 was inappropriate

¶16 The contempt ruling also failed to meet due process
requirements. Unless there has been direct contempt that requires
immediate correction, a finding of contempt under Rule 35.2 should never
be entered without first giving the interested party an opportunity to be
heard.

¶17 Direct contempt involves conduct that occurred in the court’s
presence; indirect contempt involves conduct that occurred outside of it.
Ong Hing v. Thurston, 101 Ariz. 92, 98 (1966). Unlike indirect contempt, a
court may hold a person in direct contempt summarily, but that authority
should be used sparingly. Id. at 99. Courts may hold a person in contempt
without notice or a hearing when “immediate punishment is essential to
prevent demoralization of the court’s authority,” otherwise it violates
principles of due process. In re Oliver, 333 U.S. 257, 275 (1948). Absent a
“substantial interest in rapidly coercing compliance and restoring order,” a
defendant should receive notice and an opportunity to be heard. Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 832 (1994); see Ariz. R.
Crim. P. 35.3 (the court must allow a defendant “reasonable time to prepare
a defense” to a contempt finding unless summary proceedings are
appropriate); see also Riley v. Superior Ct., 124 Ariz. 498, 499 (App. 1979)
(vacating contempt finding because summary proceedings under Rule
[35.2] were not warranted because “there was no need for immediate penal
vindication of the dignity of the court” (cleaned up)).

¶18 Here, there was no need for immediate punishment because
the vulgar email address was not noticed until after the hearing. Thus, the
municipal court erred by finding Commans in contempt without first
providing him an opportunity to be heard. This was structural error. See
State v. Ring, 204 Ariz. 534, 552, ¶¶ 45–46 (2003) (denying a criminal
defendant any opportunity to present a defense is structural error requiring
reversal).

CONCLUSION

¶19 The municipal court committed fundamental error by
holding Commans in contempt. We reverse his contempt conviction.

6
 COMMANS v. DUNBAR, et al.
Weinzweig, J., Concurring in Part and Dissenting in Part

W E I N Z W E I G, Vice Chief Judge, concur in part and dissent in part:

¶20 I concur with the majority that the First Amendment offers no
shelter here, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18
(1980) (plurality opinion) (time, place, and manner restrictions are
appropriate in the courtroom), and that Commans was not afforded due
process. For that reason, and because a reasonable judge might conclude
that Commans engaged in contemptuous conduct, I would remand for the
municipal court to afford due process.

¶21 I write separately to air my Eighth Amendment concerns. The
trial court’s 180-day sentence was grossly disproportionate to the offense
and violated the Eighth Amendment’s prohibition on cruel and unusual
punishment. See U.S. Const. amend. VIII.

¶22 The Eighth Amendment prohibits “cruel and unusual
punishments.” Id. As relevant to noncapital cases, this includes “sentences
that are grossly disproportionate to the crime committed.” State v. Kasic, 228 Ariz. 228, 231, ¶ 13 (App. 2011). Punishment must be proportionate; a
sanction should match the severity of misconduct. See State v. Berger, 212
Ariz. 473, 481, ¶ 39 (2006).

¶23 Six months in jail for an offensive email address exceeds
constitutional bounds. Trial courts have broad discretion to maintain
decorum in their courtrooms, but that discretion has limits. A 180-day
sentence transforms contempt power from a tool to maintain order into a
cudgel for punishing disrespect.

¶24 I would vacate the sentence on both due process and Eighth
Amendment grounds and remand for the municipal court to afford due
process.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

7