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					Equity & Remedies – Outline

Criminal Contempt is a crime in the ordinary sense. Civil contempt sanctions are designed to compel future compliance with a court order o They are considered coercive. o Avoidable through obedience. o May be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. o Neither jury nor proof beyond a reasonable doubt is required. Whether a contempt is civil or criminal turns on the character and purpose of the sanction. o Civil if remedial and for the benefit of complainant o Criminal is punitive and used to vindicate the auth of the court. Inherent contempt authority: Courts independently must be vested with the to impose a silence, respect, and decorum, and submission to their lawful mandates. o Have to balance competing concerns of necessity and potential arbitrariness by allowing an unencumbered contempt power when it's exercise is most essential, and requiring progressively greater procedural protection when other considerations come into play. If the court delays in a punishing a direct contempt until after completion of trial, DP requires notice and a hearing. o Direct contempts cannot be punished with serious criminals penalties absent full protections of criminal jury trial. Criminal procedural protections: right to counsel and proof beyond reasonable doubt. We're both civil and relief is imposed, the criminal feature of the order is dominant and fixes the character for purposes of review. Just because the court announced the fines before the fact, does not in itself justify conclusion that they are civil. Three kinds of contempt o Criminal Contempt o criminal punishment for past offense. o Protections of criminal procedure o proof beyond a reasonable doubt. o Cannot constitutionally be sentenced to more than six months in jail without a jury trial

Examples / Notes
Ex (Bagwell): Court enjoined union from certain activities but the union persisted in its activities. At a contempt hearing, the union was charged $642K for 72 violations and the court announced that the union would be fined $100K per future violent violation and $20K per future nonviolent violation. The union, again, persisted. At a contempt hearing, it was fined $64Mil: $12Mil payable to the companies and $52Mil payable to VA. The cos and the union settled
by VA insisted on getting its $52Mil.

Fixed sentence of imprisonment is punitive and criminal if applied retrospectively for a completed act of disobedience. o Cannot be avoided or abbreviated through later compliance. o Flat, unconditional fine is criminal if he has no subsequent opportunity to reduce or avoid. Civil and Remedial coerce Δ into compliance with court’s order or compensates the complainant for losses sustained. o Where is fine is not compensatory, it is civil only if contemnor is afforded an opportunity to purge. Inherent contempt authority is liable to abuse. Indirect contempts involving discrete, readily ascertainable acts may be adjudicated through civil proceedings since the need for expensive, impartial fact-finding is less pressing. Contempts involving out of court disobedience to complex injunctions often Require elaborate and reliable fact-finding

The distinctions depend entirely on the form of the sanctions, not on the judges purposes or motivations. The distinction is in the proceeding, not in the contempt. Inadvertent violations of the injunction are civil contempt. o Only willful violations are criminal contempt

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Equity & Remedies – Outline


Judge can avoid jury trial by announcing in advance that she would not impose a sentence that would require a jury trial. o Offenses complete when Δ willfully violates an injunction  even if injunction is later held erroneous o prosecuted in the name of a sovereign  the civil П is a witness  can report a contempt  cannot require court to proceed criminally  cannot stop them from continuing o fines are payable to the government Civil Contempt  prosecuted in the name of the П  largely controlled by П  П initiates and can abandon or settle  Clear and convincing evidence  collateral bar rule does not apply o Compensatory civil contempt  Require evidence of damages.  Like an action for damages or restitution  no jury in most jurisdictions  10 states reject compensatory contempt  П must file ordinary action for damages  П can recover Δ’s profits o Coercive contempt  conditional penalty  Δ coerced to comply because the penalty would be bigger if he doesn't  when conditional fines are used, the process breaks into 3 distinct steps  court issues injunction.  Court adjudicates the first violations and threatens a specific fines for further violations.  Court adjudicates further violations and collects the fines  Δ’s wealth is relevant to the size off course defines  payable to the government  common for settlement agreements to attempt to waive the fines  Ex: imprison contemnor until he complies.


After the sets have failed, enforcing the fines looks punitive and retrospective course defines must be collected

The judge should not feel bound in any way by the specific amount that in a second step Court to ask: how much would it take to deter than this Δ? court is not bound by such settlements This avoids the fees that process – only 2 steps.

When Contempt looses its Coercive Power. Contemnor be has the burden of proving that continued confinement had
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Equity & Remedies – Outline

no coercive effect had become punitive. o Factual issues are to be resolved to live testimony and crossexamination. Commitment cannot continue it does not have or has lost its coercive power and their by has become punitive. o Incarceration loses its coercive power with a particular method is unable to comply with a court order is charged with violating. Std of Review: o whether there is a substantial likelihood that continued incarceration would accomplish the purpose of causing the person confined to comply with the order on which confinement is based. o Refusal to comply in itself insufficient for finding that commitment has lost its coercive power. o Mere passage of time does not convert course of restraint into punitive contempt. o Court to balance its interests in enforcing compliance with a particular order, and a contemnor’s liberty. o o o o o o Coercive imprisonment must end, if there is no reasonable prospect of successful coercion. Δ can not be imprisoned for failing to do the impossible Δ can not be imprisoned for refusing to do what is possible, if he is so stubborn that coercion can never succeed A federal witness who refuses to testify can be held no more than 18 months. (even if testimony is the needed) hard to find cases where contemnor stayed in prison indefinitely RFCP 70: o designed to eliminate unnecessary standoffs by authorizing the court to appoint agents to do things on behalf of recalcitrant Δ.  But when recalcitrant Δ has hidden property, information, or a child, or anything else unavailable to the court or other parties in the case, coercion is the only solution. Δ has BoP present inability to comply. If Δ denies having the property despite long imprisonment, the trial J should eventually believe him even though she did not believe him originally.

Ex (Anyanwu): Father left his kids behind in Nigeria and was jailed for contempt of an order directing him to produce them during divorce proceedings. His first 4 appeals were denied. But the 5th time was the charm and he was released. o At the 5th appeal, be submitted pro se brief alleging that he could not comply. o No live testimony was presented.

Everything turns on whether the court believes Δ’s tale of how he lost or dissipated the property.

o o


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