Keller, William W

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North Dakota Law Review Volume 43 Number 2 Article 2 1967 Civil and Criminal Contempt William W. Keller Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Keller, William W. (1967) "Civil and Criminal Contempt," North Dakota Law Review: Vol. 43 : No. 2 , Article 2. Available at: https://commons.und.edu/ndlr/vol43/iss2/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. CIVIL AND CRIMINAL CONTEMPTWILLIAM W. KELLER*Contempt of court has been defined as any conduct that, in law,constitutes an offense against the authority and dignity of the court.The classification of contempts as civil and criminal is one whichhas been adopted by many courts, and I will discuss this classi-fication briefly The courts that see such a distinction recognizethat the line of demarcation is hazy and very indistinct. Theclassification is not followed by all jurisdictions; for instance, somecourts take the position that all contempts are criminal. As amatter of fact there is a considerable diversity among courts as toseveral aspects of contempt, and all I will do as to these aspectsis to mention what I feel are some of the prevailing views in theabsence of statute.A common practice in labelling a contempt as civil or criminalis to look to the purpose of the proceeding adjudicating the con-tempt. When the primary purpose of the proceeding is to preservethe court's authority and to punish for disobedience of its ordersthe contempt is criminal. When the primary purpose is to providea remedy for an injured litigant and to coerce compliance with anorder, the contempt is civil. A cnrmnal contempt is directedagainst the power and dignity of the court, and proceedings relativeto such a contempt are for the protection of the court. A civilcontempt is the failure to give to a litigant the benefits he is en-titled to under a court order, and proceedings relative to such acontempt are mainly for the protection of the injured litigant.There can, of course, be acts which constitute both civil andcriminal contempt. If a witness refuses, without proper cause, totestify, after being ordered to do so by the court, this constitutesa criminal contempt, since the witness defies the authority of thecourt, and a civil contempt, since the witness deprives a litigantof testimony he is entitled to under court orderOf course, such a witness can be imprisoned for civil contempt,to try and compel him to testify later on in the trial, in order totry and secure his testimony for a litigant, and he can also be pun-ished for criminal contempt, in order to maintain the authority of0 Justice, Supreme Court of New Hampshire.DEVELOPMENTS IN CONTEMPTthe court. If he were only imprisoned to force him to testify, andhe continued m his refusal during the remainder of the trial, thismight be considered of little help in maintaining the authority of thecourt, so that punishment for criminal contempt would also be con-sidered advisable. Even if, after being imprisoned, he decided totestify, and did so, although this would purge him of the civil con-tempt, it would not purge him of the criminal contempt, the twocontempts being separate and distinct, and he would still be subjectto punishment for criminal contempt.Generally the court institutes a criminal contempt proceeding,and, except in summary proceedings, designates a public prosecutoror party to prosecute the proceeding. Also, generally a party m-stitutes civil contempt proceedings, although there is authority to theeffect that the court may do so. It would appear that ordinarilythe court should leave it to the proper party to institute civil con-tempt proceedings, since the court order is for the party's benefit;ordinarily, if the court institutes a civil contempt proceeding, thealleged contemnor might feel that the court was unduly aiding theother side. However, it may be that special circumstances willexist in a particular case which make it proper and advisable forthe court to do so. For instance, it would appear that in thecase of the witness who refuses to testify, and is ordered by thecourt to do so, the court may, in its discretion, take it on himselfto try and compel the witness to testify by imprisonment; the courtmay feel in such a situation that, having ordered the witness totestify he should, in the interest of a fair trial, undertake to en-force his order.In civil contempt proceedings, if imprisonment is imposed, itmust ordinarily be coercive rather than punitive. Imprisonment forcivil contempt usually is not for a definite term, but the contemnorstands committed unless and until he performs the act required bythe court order. It is said that the contemnor carries the key tohis cell in his pocket. On the other hand, in criminal contemptproceedings imprisonment, if imposed, is for a fixed term.The amount of punishment, in a criminal contempt proceeding,is within the discretion of the court, but must be reasonable, andcannot be cruel or unusual.In a civil contempt proceeding it is, of course, proper for thecourt to jail a contemnor until such time as he performs a certainact, even though this may result in an extended confinement, since,for one reason, the contemnor has the key to the jail in his pocket.However, the question arises whether such a commitment may, ina particular case, become so oppressive as to warrant relief. Sup-245NORTH DAKOTA LAW REVIEWpose that a contemnor is imprisoned for failure to obey an orderto turn over to his divorced wife a ring worth $500.00, and that,although he admits he could comply with the order, he doesn't doso since the ring is a family heirloom and he is unusually stub-born. Does his confinement become so oppressive after one year,or five years or ten years as to entitle him to relief?In civil contempt proceedings it is generally held that since thepurpose of the proceeding is remedial, the defendant's intent incommitting the contempt is not material. In some criminal contemptcases it has been held that intent is a necessary element of theoffense. Thus in United States v Kroger Grocery and Baking Co.'when the defendant, the owner and operator of a number of grocerystores, and its officers and employees were enjoined from sellinggoods at prices in excess of OPA prices, the defendant companywas held not guilty of contempt when enjoined sales were made byemployees whom the defendant instructed not to sell for prices inexcess of the OPA prices.In accordance with this distinction, it has been held in civilcontempt proceedings that it is no defense that the alleged contemnoracted in reliance on advice of counsel, and in some criminal con-tempt proceedings that this is a good defense.It seems that the intent referred to in discussing contempt issubjective rather than objective. It is a question as to whether theacts, words and circumstances show the necessary intent. In thecase of State v Goff2 a party in a case made threatening remarksto a witness who had testified; the remarks were made on thecourthouse steps after the arguments in the case but before thewitness had been excused. The court held that these actions weresufficient to prove the requisite intent for holding the party in con-tempt, even though the party did not intend to defy the court, sinceit is a subjective rather than an objective intent that is required.Criminal contempt proceedings are generally governed by therules applicable to criminal cases, whereas civil contempt proceed-ings are generally held to be remedial and civil in their nature.Thus it has been said that a criminal contempt proceeding isveritably a criminal trial in which the rules relative to the pre-sumption of innocence and relative to establishing guilt beyond areasonable doubt apply, and the rules of evidence governing crim-inal trials apply In civil contempt proceedings it is frequentlyheld that it is only necessary to prove the contempt by a preponder-ance of the evidence.i. 163 F.2d 168 (1947).2. 228 S.C. 17, 88 S..2d 788 (1955).246DEVELOPMENTS IN CONTEMPTIt has been held in both state and federal courts that analleged civil contemnor is not entitled to a jury trial. This hasalso been the rule m state courts in criminal contempt proceedings,in the absence of a statute. The rule in federal courts in criminalcontempt cases now appears to be somewhat different. In the caseof Cheff v Schnackenberg,3 although the Court affirmed a criminalcontempt conviction without a jury, where the sentence was for sixmonths, the Court stated that in the exercise of its supervisorypower over federal courts, it ruled that sentence exceeding sixmonths for criminal contempt cannot be imposed by federal courtsunless a jury trial has been received or waived. This raises thequestion as to whether or not state courts will be subject to sucha limitation under the due process clause of the 14th amendment.The due process clause of the 14th amendment to the UnitedStates Constitution has been held to apply to state criminal contemptcases, and to require that one charged with contempt be given apublic hearing and an opportunity to be represented by counsel,except in cases of direct contempt.In the case of In re Oliver,4 Oliver testified as a witness beforea state judge sitting as a one man grand jury in secret session.Immediately after he testified the judge summarily found himguilty of contempt on the basis that he had given false and evasiveanswers, the judge relying in part on testimony another witness hadpreviously given when Oliver was not present. The conviction wasnot m open court, Oliver was not represented by counsel, and hehad no opportunity to present a defense.The Court, in reversing the conviction for lack of due process,stated that:Except for a narrowly limited category of contempts, dueprocess of law as explained in the Cooke case requires thatone charged with contempt of court be advised ofcharges against him, have a reasonable opportunity tomeet them by way of defense of explanation, have the rightto be represented by counsel, and have the right to testifyand call other witnesses in his behalf, either by way of de-fense or explanation. The narrow exception to the dueprocess requirements includes only charges of misconduct,in open court, in the presence of the judge, which disturbthe court business, when all of the essential elements of themisconduct are under the eyes of the court, are actuallyobserved by the court, and where immediate punishment isessential to prevent "demoralization of the court's authority3. 384 U.S. 373 (1966).4. 833 U.S. 257 (1948).DEVELOPMENTS IN CONTEMPTbefore the public." If some of the essential elements of theoffense are not personally observed by the judge, so thathe must depend on statements made by others for his know-ledge about these essential elements, due process requires,according to the Cooke case, that the accused be accordednotice and a fair hearing.The Oliver case involved a criminal contempt. However, it isgenerally held in civil as well as in criminal contempt cases thatthe person charged with contempt has a right, except in cases ofdirect contempt, to a hearing and to representation by counsel.The question arises as to this last mentioned right as to whetherone charged with a serious indirect criminal contempt is entitledto have the state furnish a lawyer for him, at the state expense,if he is financially unable to do so.The Court also held in the Oliver case that the conviction mustbe set aside because it was done in secret session.This same issue was considered in Levine v United States.5In that case, the petitioner, having refused to answer questions be-fore a grand jury in a federal district court, was brought, togetherwith the grand jury, before the judge. The court cleared the court-room of all but the petitioner, his counsel, the grand jury, thegovernment counsel and the reporter The court again asked thequestions of the petitioner, and, on his refusal to answer, found himin contempt. In this case, the conviction was sustained. The Courtstated that the petitioner did not have a right to a public hearingup through the time when the questions were asked him, becauseof the secret nature of grand jury proceedings, but did have a rightto a. public hearing after that time, when he refused to answer andwhen he was convicted of contempt. However, the Court distinguish-ed this case from the Oliver case on the basis that the petitioner'scounsel did not ask to have the hearing opened to the public. Theuse of summary procedure in a situation such as existed in thiscase was later disapproved in Harris v United States,6 whichoverruled Brown v United States.'Although the Oliver case relates to a criminal contempt pro-ceeding, it would seem that the general rule giving the right topublic hearings would apply to civil contempt proceedings.These cases raise the question as to whether it is ordinarilyadvisable for a court to hold a contempt hearing in chambers.5. 362 U.S. 610 (1960).6. 359 U.S. 19 (1959).7. 359 U.S. 41 (1959).248DEVELOPMENTS IN CONTEMPTThere are two fairly recent United States Supreme Court caseswhich deal with the right to a hearing in criminal contempt cases.In Harris v United States," which I have already mentioned,as disapproving summary procedure in a situation such as existedin the Levine case, the petitioner refused to answer questions beforea New York grand jury The petitioner and the grand jury werebrought before the District Court where he again refused to answer,whereupon he was found guilty of contempt and sentenced to oneyear imprisonment. The Supreme Court set aside the convictionsince the petitioner was not given a, hearing, the Court holding thatthis was not a case of direct contempt.In Holt v Commonwealth of Virginia9 the Court held that theconviction of an attorney for contempt was not consistent with dueprocess. In this case the judge had cited Attorney A for contempt.Attorney B, in representing Attorney A, filed a motion to changethe venue, alleging that the judge, in the contempt proceedingsagainst A, had acted as police officer, prosecution witness, adversewitness and grand jury The court thereupon held Attorney B guiltyof contempt on the basis of the allegation in the motion to changethe venue. The court acted summarily, without a hearing, and theSupreme Court held that this was not due process. The Court statedthat the judge, in order to hold Attorney B guilty of contempt, musthave assumed that the allegations in the motion were untrue, whichhe had no right to do.8. Supra note 6.9. 381 U.S. 131 (1965).

Civil and Criminal Contempt

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Civil and Criminal Contempt

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