Ch.3.Part 1 Enforcement contempt

RemediesFall 2014

Chapter 3 Contempt and Enforcement of Equitable DecreesPART 1

Prof. George W. [email protected] 409212-636-7446

Adjunct Professor of Law &Senior FellowStein Center for Law & Ethics

Ch. 3 Enforcing equitable decress - Contempt 1

mailto:[email protected]

Means of enforcement of equitable decrees US. Marshal Service Deputize private guards Federalize the national guard Local and State Police


Remedies to enforce breach of equity decrees Make whole persons injured

by D's failure to adequately account

Disgorge profits or ill gotten gains

Limit or bar litigation rights enter default, strike defenses Civil Imprisonment to induce compliance


More methods of Enforcement of Equitable Decrees

Guardians & Conservators

Money decrees (child support, payroll deduction order)

Supplemental proceedings (discover assets which may be attached)

Punitive fines, imprisonment, damages, or remedial fines (payable to the aggrieved party)


Take possession – physically or formally

Impose equitable liens or trusts

Transfer title by decree In rem seizure of assets Receivers Special masters and trustees


Compulsion or punishment?

What is contempt of court


Who has the contempt power? Courts of general jurisdiction Federal Article III judges• Magistrate Judges• Bankruptcy judges Administrative agencies may apply

to general jurisdiction courts or to courts with statutory authority.


Contempt in facie curiaeIn Re Little,404 U.S. 553 (1972) p. 85

We hold that in the context of this case petitioner's statements in summation did not constitute criminal contempt.

Why not?Ch. 3 Enforcing equitable decress -

Contempt 8

In Re Little, 404 U.S. 553 (1972) p. 94 "The vehemence of the language

used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil . . . . “

By this standard was Mayberry in contempt? At which point(s)?Ch. 3 Enforcing equitable decress -

Contempt 9

Contempt in facie curiaeIn Re Little,404 U.S. 553 (1972)

In summation following the close of the evidence [defendant pro se] said

the court was biased and had prejudged the case and that he was a political prisoner.


Contempt in facie curiaeIn Re Little,404 U.S. 553 (1972)

"the Court at this point informed the [petitioner] that he was in contempt as the Court felt that these remarks were very disrespectful and tended to subvert and prevent justice”

"As the defendant was being removed from the courtroom by deputy sheriff [following the contempt adjudication], he spoke out and called the undersigned presiding judge a M -- F --."


Contempt: Criminal vs. Civil Criminal contempt: - an offence

to the court itself - a defiance of an order of the court

Civil contempt: primarily to encourage future compliance with the violated order and to vindicate the rights of the opposing party


Contempt: Criminal vs. Civil Criminal contempt sanctions Retrospective Fixed Determinate Punitive

Civil Contempt Sanctions Future oriented Conditional, indeterminate Coercive Deterrent Compensatory


Criminal vs. Civil – the sanction determines which it is Incarceration Criminal – fixed term Civil – indeterminate “the keys are in your mouth”

Financial penalties Criminal – fixed Civil - often cumulative and

conditionalCh. 3 Enforcing equitable decress -

Contempt 14

Civil Contempt Commonly employed as a coercive

measure in cases of: Refusal to testify Illegal strikes Failure to abate nuisances Failure to pay


Criminal contempt Constitutional protections apply Maximum punishment set by statute or

constitutional limits Fair notice of prohibited conduct Trial by jury (>6 months) Independent magistrate Right to counsel Right to confront witnesses Right to bail Guilt beyond reasonable doubt


Labor and the contempt power In re Debs (1895)

Norris-LaGuardia Act

`Little Norris LaGuardia Acts’

NLRA/Wagner Act – unfair labor practices

Duty of fair representationCh. 3 Enforcing equitable decress -

Contempt 17

29 USC 101 – Norris LaGuardia No court of the United States…, shall

have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter; nor shall any such restraining order or temporary or permanent injunction be issued contrary to the public policy declared in this chapter.Ch. 3 Enforcing equitable decress -

Contempt 18

U.S. v. PATCO – 1982 p. 98 PATCO challenges the validity of the

injunctive order, claiming it contravenes the "void for "vagueness' " doctrine and FRCP Rule 65(d) "because it fails to delineate the vague contours of the term "picket.' "

A government regulation can neither forbid nor require "the doing of an act in terms [so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application …"


U.S. v. PATCO – Restraining Order “… from having at any given time

more than 30 pickets for informational purposes at or near the entrance to the FAA Air Route Traffic Control Center in Nashua, NH, and

pickets any closer to the entrance/exit gates of said Center than a distance of 40 feet

in any way threatening or attempting to threaten any employees of FAA or lawful visitors …"


US v. PATCO PATCO challenges $5,000 fine as

criminal, imposed without notice

Civil contempt proceedings are for .. coercing compliance with the orders of the court and/or to compensate complainant for losses sustained by defendant's noncompliance. Ch. 3 Enforcing equitable decress -

Contempt 21

US v. PATCO Coercion may be achieved by

imprisonment of the contemnor until he purges himself of the contempt, and/or by a prospective, conditional fine.

The government, while consistently labeling the proceedings as civil, has not asserted that the present fine is compensatory for any proved loss.


US v. PATCO Sanctions for civil contempt must

be "wholly remedial“… A definite fine which is neither compensatory, nor conditioned on future violations of the court order is punitive and can be imposed only in criminal contempt proceedings.”

What are the consequences of the ruling?


In facie curiae

Contempt


28 USC § 1826 Recalcitrant witnesses (a) Whenever a witness in any

proceeding before…any court or grand jury… refuses without just cause… to testify or provide other information….

the court…may summarily order his confinement… until such time as the witness is willing to give such testimony or provide such information.


28 USC § 1826 Recalcitrant witnesses No period of such confinement shall

exceed the life of--

(1) the court proceeding, or

(2) the term of the grand jury including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.


Contempt in facie curiae Rule 42 (a) Federal Rules of Criminal

Procedure. "A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.

The order of contempt shall recite the facts and shall be signed by the judge and entered of record."


Yates v. U.S. – civil v. criminal contempt After the Government had rested its case in

the Smith Act trial.. Petitioner took the stand. She refused to answer four questions about

the Communist membership of a nondefendant and of a codefendant who had rested his case.

". . . That is a question which, if I were to answer, could only lead to a situation in which a person could be caused to suffer the loss of his job . . . and perhaps be subjected to further harassment, and . . . I cannot bring myself to contribute to that."


Yates v. U.S. p. 101 civil v. criminal contempt

The District Court adjudged her guilty of civil contempt for refusing to answer these questions, and committed her to jail until she should purge herself by answering the questions or until further order of the court. She was confined for the remainder of the trial.

[Yates was sentenced to one year for each of the 11 questions she refused to answer.] Ch. 3 Enforcing equitable decress -

Contempt 29

Was Yates guilty of civil contempt?Of criminal contempt?Why should the judge reconsider the sentence?

Was Andrea Yates properly charged under Fed. R. Crim. Pro. 42(a)?


UMWA v. Bagwell (1994) p. 105

Civil vs. Criminal contempt

Trial by jury



Due Process for defendants in

criminal contempt cases

F.R. Crim. Pro. 42. Criminal Contempt (a) Disposition After Notice. Any person who commits criminal

contempt may be punished for that contempt after prosecution on notice.

(1) Notice. The notice must:(A) state the time and place of the trial;(B) allow the defendant a reasonable time to prepare a defense; and(C) state the essential facts constituting the charged criminal contempt and describe it as such.


F.R. Crim. Pro. 42. Criminal Contempt (2) Appointing a Prosecutor. The court must request that the

contempt be prosecuted by an attorney for the government…


F.R. Crim. Pro. 42. Criminal Contempt (3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 (Bail) provides.

If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents.


F.R. Crim. Pro. 42. Criminal Contempt (b) Summary Disposition. …[T]

he court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies…

The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.Ch. 3 Enforcing equitable decress -

Contempt 36

N.J. Rule 1:10-1. Summary contempt in presence of court

A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if:

(a) the conduct has obstructed, or if continued would obstruct, the proceeding;

(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;


N.J. Rule 1:10-1. Summary contempt in presence of court

(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;

(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and

(e) the judge has afforded the alleged contemnor an immediate opportunity to respond. Ch. 3 Enforcing equitable decress -

Contempt 38

N.J. Rule 1:10-1. Summary contempt in presence of court - The Order of Contempt The order of contempt MUST: recite the facts Judge must certify he or she saw or

heard the conduct the contemnor was willfully

contumacious. Punishment may be determined

forthwith or deferred. Execution of sentence shall be stayed for

five days following imposition and, if an appeal is taken, during the pendency of the appeal Ch. 3 Enforcing equitable decress -

Contempt 39

Civil Contempt Damages


Time Share Systems, Inc. v. Schmidt, p.114 Schmidt prevented Time-Share from

gaining access to the computer while the deletions were occurring. Additional testimony indicated that Schmidt's employees undertook certain activities with respect to the computer which allowed the deletions to occur.


Time Share Systems, Inc. v. Schmidt Damages The trial court also awarded $2,500

to indemnify Time-Share for the contemnors' wrongful activities. However, "indemnity must be based on proof of damages actually suffered or it cannot be sustained."

There is no evidence to show the amount of damages Time-Share suffered as a result of Schmidt's activities. Ch. 3 Enforcing equitable decress -

Contempt 42

Time Share Systems, Inc. v. Schmidt Standard of Review A finding of contempt from which

contemnor cannot purge himself is an appealable order. There is no evidence that the trial court abused its discretion in finding the appellant in contempt.

The trial court finding of contempt and award of costs and attorney's fees is affirmed.

We remand for proof of damages for the award of $2,500.Ch. 3 Enforcing equitable decress -

Contempt 43

Vermont Women’s Health Center v. Operation Rescue p. 97

Burden of Proof

We first set out the standards for review of contempt orders. It is plaintiffs' burden to prove the elements of civil contempt by clear and convincing evidence.


Vermont Women’s Health Center v. Operation Rescue

We find that there was substantial, credible evidence to support the trial court's findings that each defendant knew of the terms of the order.

At a minimum, the findings are supported by testimony that police officers informed each protester, prior to making an arrest, that the protester was violating a court order and could leave without being arrested and placed a copy of the order on or near each protester.



Notice of injunction’s terms and Sufficiency of Evidence

The court could consider the actions of defendants in attempting to drown out the reading of the injunction.

Such conduct is probative that they were already aware of the content of the order and were trying to prevent the formality of notice.

we do not accept that the concerted actions to defeat notice can be effective for that purpose.



Joint and Several Liability

Generally, those who act in concert to violate a court order are jointly and severally liable for resulting damages. See NLRB v. Laborers' International Union of North America

This rule is consistent with the general principle that tortfeasors are jointly and severally liable for compensatory damages.

We have adopted a different rule for punitive damages.

The damages at issue here, however, are entirely compensatory.



Defendants challenge the trial court's decision to hold them jointly and severally liable for

plaintiffs' damages - $ 3,738, the cost of service of the TRO and the

new injunction - $ 5,000 $ 14,000 in attorneys' fees. Orders of contempt are discretionary


Procedural Requirements


U.S. v. Wilson p. 120 Is summary contempt under FRCrP

42(a) proper for witness who refuses to testify during trial despite testimonial immunity grant?

Is refusal to testify before grand jury different?

What is the difference between 42(a) and 42(b) trials?


*State constitutions•* Article III* 7th Amendment* 6th Amendment

Jury Trial Right


State of New York - Constitution Article I Bill of Rights

Sec. 2. Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever...


NY Constitution – the common law preserved

§ 14. Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony, on the nineteenth day of April, 1775...which have not since expired, or been repealed or altered... shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same.


State of New York - Constitution Article I Bill of Rights

But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated.


Article II, Sec. 2 – U.S. Constitution

The trial of all crimes, except in

cases of impeachment, shall be

by jury

How does the Supreme Court

impose this new rule on the

states?


Amendment VI In all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.


Bloom v. Illinois (U.S. 1968) p. 126 ‘To submit the question of

disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.’

In re Debs (1895). [W]e do not agree: in our judgment,

when serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot squared with the Constitution or justified by considerations of efficiency or the desirability of vindicating the authority of the court.


Jury Trial RightBloom v. Illinois (SCOTUS) p. 126

Criminal contempt is not a crime that requires the right to jury trial regardless of the penalty involved.

If legislation is silent on maximum penalty

“courts are to look to the penalty actually imposed as the best evidence of the seriousness of the offense.” Ch. 3 Enforcing equitable decress -

Contempt 58

Jury Trial RightBloom v. Illinois

No bright line “between petty offenses and serious crimes" but we have said

"a crime punishable by two years in prison is . . . a serious crime and not a petty offense."


Jury Trial RightBloom v. Illinois

Bloom was sentenced to imprisonment for two years.

It is clear that Bloom was entitled to the right to trial by jury, and it was constitutional error to deny him that right.

Reversed and remanded.


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Ch.3.Part 1 Enforcement contempt