Ch.3.Part 1 Enforcement Contempt

Remedies
Fall 2014

Chapter 3 Contempt and Enforcement of Equitable
Decrees
PART 1

Prof. George W. Conk
gconk@law.fordham.edu
Room 409
212-636-7446

Adjunct Professor of Law &
Senior Fellow
Stein Center for Law & Ethics
Ch. 3 Enforcing equitable decress -
Contempt 1
Means of enforcement of
equitable decrees
US. Marshal Service
Deputize private guards
Federalize the national guard
Local and State Police
Contempt 2
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
Contempt 3
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)
Contempt 4
Take possession physically or formally
Impose equitable liens or trusts
Transfer title by decree
In rem seizure of assets
Receivers
Special masters and trustees
Contempt 5
Compulsion or punishment?
What is contempt of
court
Contempt 6
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 7
Contempt in facie curiae
In 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?
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)?
Contempt 9
In 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 10
In 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 11
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 12
Contempt: Criminal vs. Civil
Criminal contempt sanctions
Retrospective
Fixed
Determinate
Punitive

Civil Contempt Sanctions
Future oriented
Conditional, indeterminate
Coercive
Deterrent
Compensatory

Contempt 13
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 conditional
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
Contempt 15
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
Contempt 16
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 representation
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.
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 "

Contempt 19
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 "
Contempt 20
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.
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.
Contempt 22
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?
Contempt 23
In facie curiae
Contempt
Contempt 24
28 USC 1826 Recalcitrant witnesses

(a) Whenever a witness in any proceeding
beforeany court or grand jury refuses
without just cause to testify or provide
other information.
the courtmay summarily order his
confinement until such time as the witness
is willing to give such testimony or provide
such information.
Contempt 25
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 26
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."
Contempt 27
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."
Contempt 28
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.]

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)?
Contempt 30
UMWA v. Bagwell (1994) p. 105
Civil vs. Criminal contempt
Trial by jury
Contempt 31
Contempt 32
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.
Contempt 33
(2) Appointing a Prosecutor.
The court must request that the contempt
be prosecuted by an attorney for the
government
Contempt 34
(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.
Contempt 35
(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.
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;

Contempt 37
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.
Contempt 38
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
Contempt 39
Civil Contempt Damages

Contempt 40
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.
Contempt 41
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.
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.

Contempt 43
Vermont Womens 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.
Contempt 44
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.
Contempt 45
Rescue
Notice of injunctions 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.
Contempt 46
Rescue
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.
Contempt 47
Rescue
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
Contempt 48
Procedural Requirements

Contempt 49
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?
Contempt 50
*State constitutions
* Article III
* 7
th
Amendment*
6
th
Amendment
Jury Trial Right
Contempt 51
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...

Contempt 52
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.
Contempt 53
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.
Contempt 54
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?
Contempt 55
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.

Contempt 56
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.
Contempt 57
Jury Trial Right
Bloom 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.
Contempt 58
Jury Trial Right
Bloom 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."
Contempt 59
Jury Trial Right
Bloom 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.
Contempt 60

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