Massa, J.
A judge held Russell Finnegan in indirect contempt for sending vulgar communications to the court. During the proceedings, Finnegan’s counsel requested a mental-health evaluation pursuant to Indiana Code section 35-36-2-2(b), which the trial court denied. The Court of Appeals found the denial to be error and reversed. While a court can certainly consider a defendant’s mental health, and even order an evaluation when weighing a contempt decision, we hold that the statutory procedures for asserting the insanity defense in criminal proceedings do not apply in an indirect criminal contempt action because it is not a “criminal case” as the relevant statute uses that phrase.
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The trial court found Finnegan in indirect contempt of court because of his vulgar letters, but the Court of Appeals reversed, concluding alleged indirect contempt defendants are “entitled to the same statutory protections afforded other criminal defendants.” Finnegan, 221 N.E.3d at 1238. The State argues Finnegan cannot assert an insanity defense because the criminal procedural statutes do not apply in indirect contempt proceedings. We affirm the trial court on the narrow ground that the insanity defense statutes, as codified in Indiana Code chapter 35-36-2, et seq., do not apply to indirect contempt proceedings. [Footnote omitted.] While an alleged contemnor is always free to argue his mental state to excuse, explain, or mitigate his contemptuous behavior, the statutes simply do not compel a judge to treat him precisely like a criminal defendant. [Footnote omitted.]
Looking to the statutory text, the insanity defense statutes use the phrase “criminal case” to describe a defendant or trial, demonstrating the General Assembly’s intent to limit the affirmative defense to criminal cases. See I.C. § 35-36-2-1… The Statute defines “offense” as a “crime,” I.C. § 35-31.5-2-215, and “crime” is defined as “a felony or a misdemeanor,” id. § -75(a). Because indirect contempt is neither, it is not an “offense” for which the statutory insanity defense applies. Additionally, in the indirect contempt statutes, the General Assembly calls an individual a singular “person,” id. §§ 34-47-3-1, -2, -3, “the defendant,” id. § -6, or “the person charged with indirect contempt,” id. § -5. These linguistic statutory differences reveal the General Assembly’s intent to limit the procedural protections of the insanity defense to criminal cases.
The General Assembly also distinguished the procedures governing indirect contempt by placing it under Title 34, which governs civil procedures, while Title 35 governs criminal proceedings…
The statutory language is clear. Indirect contempt proceedings are separate from criminal proceedings…
The General Assembly’s intent is further revealed by the stark differences in the procedural rules mandated for criminal versus contempt proceedings. Criminal proceedings begin with the filing of charging information or indictment, Ind. Crim. Rule 2.1, but indirect contempt proceedings are initiated by a rule to show cause order that describes the allegations and sets a hearing date, I.C. § 34-47-3-5. …
The text of Indiana Code chapter 35-36-2 contemplates the assertion of an insanity defense (and the statutory procedural rights it triggers) only in criminal cases. Indiana Code section 35-36-2-1 instructs “the defendant in a criminal case” to file notice of intent to use the insanity defense no later than twenty days if charged with a felony and no later than ten days if charged with a misdemeanor. I.C. § 35-36-2-1…
Conclusion
Indirect contempt of court is neither criminal nor civil, but sui generis. Based on our reading of our distinct statutes on contempt and the content and structure of the criminal code as a whole, we hold that the insanity defense statutes do not apply to indirect contempt proceedings and affirm the trial court. Whether that might offend due process must wait for a case where it is raised.
Rush, C.J., and Slaughter and Molter, JJ. concur.
Goff, J., concurs in part and dissents in part with separate opinion.
Goff, J., concurring in part and dissenting in part.
I agree that Finnegan waived his argument that application of code section 34-47-3-1 violated his right to free expression under the Indiana Constitution. While this Court “has long exercised its discretion to address the merits of a party’s constitutional claim notwithstanding waiver,” see Jackson v. State, 165 N.E.3d 641, 646 (Ind. Ct. App. 2021), Finnegan cites no compelling grounds for applying a waiver exception here.
I disagree, however, with the Court’s holding that the “procedures for asserting the insanity defense in criminal proceedings do not apply in an indirect criminal contempt action because it is not a ‘criminal case.’” Ante, at 2. In my view, indirect criminal contempt is a crime, and a defendant faced with such a charge is entitled to the same protections enjoyed by other criminal defendants, including the right to opinion testimony from mental-health experts to show evidence of insanity.
I. An indirect-contempt proceeding amounts to a “criminal case” subject to the insanity-defense statutes.
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A. Modern jurisprudence holds that criminal contempt is “a crime in every fundamental respect.”
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B. The due-process protections implicated in an indirect-contempt proceeding include the right to call witnesses.
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C. Guilt of indirect criminal contempt requires proof that the defendant acted with the requisite mens rea.
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II. Courts should use the contempt power sparingly.
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