Contending with Contempt
December 19, 2013 § 1 Comment
The ins and outs of contempt can get pretty confusing. There is civil contempt and there is criminal contempt, and there is direct criminal contempt, and there is constructive criminal contempt. There are different burdens of proof, and there are different due process requirements. In the heat of battle, it can be confusing.
The MSSC decision in Judicial Performance Commission v. Harris, handed down December 5, 2013, offers an opportunity to review the forms and requirements of contempt.
Here it is in a nutshell:
- Civil contempt enforces the right of a private party to enforcement of a previous court judgment in his or her favor. It is triable in seven days via R81 summons. The burden of proof is by a preponderance of the evidence (although some cases say it is by clear and convincing evidence).
- Criminal contempt enforces the authority of the court. There are two categores: direct and constructive. The burden of proof is beyond a reasonable doubt.
- Direct criminal contempt occurs in the presense of or within the sensory perception of the judge, and is punished instantly by the offended judge.
- Constructive criminal contempt occurs outside the presence or sensory perception of the offended judge. It requires notice, an opportunity to defend, and other due process considerations, including the possibility of hearing before another judge.
The MSSC decision in In re Williamson, 838 So.2d 226, 228 (Miss. 2002), includes a helpful discussion.
As a judge I find some of these categories somewhat fluid. For example, when a party files a blatantly false and fraudulent document with the court, assuming the act is contemptuous, is it direct because it is presented to the judge as a pleading or evidence, or is it constructive because the act of filing took place outside the presence of the judge? Or, where a party in the course of testimony or in a pleading volunteers that he has done a clearly contemptuous act, is that direct or constructive? In my experience, it’s not always crystal clear when one is called upon to make the right decision.
As a lawyer, these distinctions may make a big difference to your client, whichever side you find yourself on. If all you’re seeking is to force compliance with a child support or alimony order, civil contempt is all you really need. If you try to get fancy and ask for criminal sanctions, you are propelling the case in a whole different direction with heightened burden of proof and more stringent due process requirements. If you are representing the alleged contemnor, you will want to be sure he or she is afforded all of the due process protection that applies. You might even want to argue for all due process protection in a direct criminal case simply because it would possibly allow the judge to cool down and the memory of your client’s reprehensible conduct to fade somewhat.