ArtIII.S1.3.1.1 Categories of Contempt

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Crucial to an understanding of the history of the law governing the courts' powers of contempt is an awareness of the various kinds of contempt. With a few notable exceptions, 1 the Court has consistently distinguished between criminal and civil contempt, the former being a vindication of the authority of the courts and latter being the preservation and enforcement of the rights of the parties. A civil contempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not involve a sentence for a definite period of time. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt. 2

The issue of whether a certain contempt is civil or criminal can be of great importance. For instance, criminal contempt, unlike civil contempt, implicates procedural rights attendant to prosecutions. 3 Or, in Ex parte Grossman, 4 while holding that the President may pardon a criminal contempt, Chief Justice Taft noted in dicta that such pardon power did not extend to civil contempt. Notwithstanding the importance of distinguishing between the two, there have been instances where defendants have been charged with both civil and criminal contempt for the same act. 5

Long-standing doctrine regarding how courts should distinguish between civil and criminal contempt remains influential. In Shillitani v. United States, 6 defendants were sentenced by their respective District Courts to two years imprisonment for contempt of court, but the sentences contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury. On appeal, the Supreme Court held that the defendants were in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for determining whether the contempt is civil or criminal is what the court primarily seeks to accomplish by imposing sentence. 7 Here, the purpose was to obtain answers to the questions for the grand jury, and the court provided for the defendants' release upon compliance; whereas, a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterence.8

In International Union, UMW v. Bagwell, 9 however, the Court formulated a new test for drawing the distinction between civil and criminal contempt in certain cases. Henceforth, the imposition of non-compensatory contempt fines for the violation of any complex injunction will require criminal proceedings. This case, as have so many, involved the imposition of large fines (here, $52 million) upon a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike. The Court was vague with regard to the standards for determining when a court order is complex and thus requires the protection of criminal proceedings. 10

The Court has also recognized a second, but more subtle distinction between types of contempt, and that is the difference between direct and indirect contempt. Direct contempt results when the contumacious act is committed in the presence of the Court or so near thereto as to obstruct the administration of justice,11 while indirect contempt is behavior that the Court did not itself witness. 12 The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the appropriate procedure for charging the contemnor. As will be seen in the following discussion, the history of the contempt powers of the American judiciary is marked by two trends: a shrinking of the court's power to punish a person summarily and a multiplying of the due process requirements that must otherwise be met when finding an individual to be in contempt. 13

Footnotes

  1.  Jump to essay-1E.g., United States v. United Mine Workers, 330 U.S. 258 (1947).
  2.  Jump to essay-2Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324, 327-328 (1904).
  3.  Jump to essay-3In Robertson v. United States ex rel. Watson, the Court had granted certiorari to consider a District of Columbia law that allowed a private individual to bring a criminal contempt action in the congressionally established D.C. courts based on a violation of a civil protective order. 560 U.S. ___, No. 08-6261, slip op. (2010). The Court subsequently issued a per curiam order dismissing the writ of certiorari as having been improvidently granted, but four Justices dissented. Writing in dissent, Chief Justice Roberts thought it imperative to make clear that [t]he terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought of behalf of the government. 560 U.S. ___, No. 08-6261, slip op. at 1 (2010) (Roberts, C.J., dissenting). Of particular concern was how various protections in the Bill of Rights against government action would play out in a privately brought action. Id. at 5-6.
  4.  Jump to essay-4267 U.S. 87, 119-120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties, Michaelson v. United States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65-66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968).
  5.  Jump to essay-5See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).
  6.  Jump to essay-6384 U.S. 364 (1966).
  7.  Jump to essay-7384 U.S. at 370.
  8.  Jump to essay-8384 U.S. at 370 n.6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process claim).
  9.  Jump to essay-9512 U.S. 821 (1994).
  10.  Jump to essay-10512 U.S. at 832-38. Relevant is the fact that the alleged contempts did not occur in the presence of the court and that determinations of violations require elaborate and reliable fact-finding. See esp. id. at 837-38.
  11.  Jump to essay-11Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which provides, 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. See also Beale, Contempt of Court, Civil and Criminal, 21 Harv. L. Rev. 161, 171-172 (1908).
  12.  Jump to essay-12See Fox, The Nature of Contempt of Court, 37 L.Q. Rev. 191 (1921).
  13.  Jump to essay-13Many of the limitations placed on the inferior federal courts have been issued on the basis of the Supreme Court's supervisory power over them rather than upon a constitutional foundation, while, of course, the limitations imposed on state courts necessarily are on constitutional dimensions. Indeed, it is often the case that a limitation, which is applied to an inferior federal court as a superintending measure, is then transformed into a constitutional limitation and applied to state courts. Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391 U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state courts alike. Therefore, in this section, Supreme Court constitutional limitations on state court contempt powers are cited without restriction for equal application to federal courts.