2007 Autumn, Pg. 72. Civil and Criminal Contempt in New Hampshire.

AuthorBy Attorney Charles G. Douglas, III and Christopher Buck

New Hampshire Bar Journal


2007 Autumn, Pg. 72.

Civil and Criminal Contempt in New Hampshire

New Hampshire Bar JournalAutumn 2007, Volume 48, No. 3Municipal LawCivil and Criminal Contempt in New HampshireBy Attorney Charles G. Douglas, III and Christopher Buck"0, it is excellent, to have a giant's strength; but it is tyrannous to use it like a giant."(fn1)

  1. Introduction

    Criminal versus civil contempt, direct versus indirect contempt and all of the procedural concerns are the subject of this article. It expands upon and updates an earlier article by the lead author that was published in this journal 32 years ago.(fn2)

  2. History of Contempt

    The New Hampshire Supreme Court has long recognized contempt powers as inherent in the New Hampshire judiciary. In 1851 in Tenney's Case, it was held that "anything done. . . for the purpose of obstructing justice. . . may be punished as a contempt of the court before whom the proceedings are had."(fn3) Further:

    "It is said by Blackstone, that the process of an attachment for a contempt, must necessarily be as ancient as the laws themselves. For laws without a competent authority to secure their administration from disobedience and contempt, must be vain and nugatory."(fn4)

    In 1861 the Supreme Court said that "contempt is an offense at common law - a specific and substantive offense" that is separate and distinct from the matter in litigation out of which the contempt arose.(fn5) It "belongs to the court before which it is committed to punish it."(fn6)

    "The contempt power generally is exercised: to maintain order and decorum in court proceedings; to punish for disrespect shown the court or its orders; to enforce the court's writs and orders; and to punish acts which obstruct the administration of justice."(fn7)

    The courts in this state have "the duty and responsibility to be alert to protect the judicial processes from being brought into disrepute" and must "act vigorously" to address acts or conduct which tend to obstruct or interfere with justice.(fn8) Thus, the power to punish for contempt is an essential attribute of the superior court as a court of general jurisdiction.(fn9) By a three to two decision the Supreme Court in State v. Moquin, upheld a finding of guilty based on an indirect contempt in the then Manchester Municipal Court.(fn10) In Benton v. Dover District Court, the Court unanimously affirmed a contempt finding by a district court based upon a direct contempt but reduced the sentence of six-months' confinement.(fn11) That district courts could find someone in contempt was affirmed by citing Moquin, supra, and RSA 502-A:34.(fn12)

    Criminal contempt is not founded upon the Criminal Code, and, in fact, if the legislature sought to sharply limit the fine or confinement authority of a court there would be a serious question of such provision's constitutionality. In Opinion of the Justices, the question was raised as to whether a pending bill would violate the constitution of New Hampshire by limiting punishment for indirect contempt to a maximum of 15-days' imprisonment and a $100 fine.(fn13) Citing the separation of the three essential branches of government under Part I, Article 37, the Court concluded that contempt was a power inherent in the judicial branch:

    "It may not be entirely clear whether the legislature can regulate the exercise of this power, beyond the limit of reasonable sentence of the offender, which is implicit in existing law. If there is such power, it is manifest that it does not extend to fixing a limit which in many cases would not provide for more than a nominal sentence."(fn14)

    Contempt powers do not lie exclusively with the judiciary. The New Hampshire Constitution does not explicitly give the judiciary the power to penalize contempt, yet in Part II, Article 22, it gives the House of Representatives "authority to punish, by imprisonment, every person who shall be guilty of . . . any disorderly and contemptuous behavior...."(fn15) In Groppi v. Leslie, 404 U.S. 496 (1972), the legislative contempt power was reaffirmed for states and the national government.

    In 2001, the New Hampshire Supreme Court reaffirmed that our courts "possess inherent authority to initiate contempt proceedings for disobedience to their orders."(fn16) The court relied on Young v. United States, 481 U.S. 787, 793 (1987), a Supreme Court decision upholding the District Court's authority to appoint private attorneys to prosecute federal contempt actions.(fn17) The case was a modern affirmation of the common law principle that courts must be empowered to "preserve respect for the judicial system and its orders."(fn18)

  3. Modern Doctrine: Town of Nottingham v. Cedar Waters, Inc.

    Between 1976 and 2001, Robert A. Bonser was a fixture of the civil court system(fn19) for his dispute with the town of Nottingham over maintaining several mobile homes on his 350-acre nudist colony.(fn20) The town's zoning ordinances required that mobile homes be located on individual parcels of land, and placed upon "a continuous permanent foundation of concrete or any other masonry wall."(fn21) Bonser, who had at least six mobile homes on his property, refused to comply with the ordinances, either by subdividing his property or applying for permits from the town.(fn22) A self-professed "constitutional revivalist,"(fn23) he was convinced that the superior court's authority to fine him was illegitimate, because he did not receive a jury trial on his zoning law dispute.(fn24) As a result, Bonser was often jailed and fined for contempt. At one point he faced more than $27,000 in fines and, when he refused to pay, spent 116 days in jail.(fn25) Bonser described himself as a "political prisoner. . . being held for ransom."(fn26)

    Though the "whole fabric of zoning and planning laws"(fn27) never unraveled because of Robert Bonser, he was ultimately successful in accumulating over $183,850 in fines (reduced from nearly $1.5 million) and owing $122,364.98 in attorneys' fees to the town.(fn28) While he never accomplished his goal of establishing a right to a jury trial for violation of a zoning ordinance, he was indispensable in helping to shape the law of contempt in New Hampshire.

    In the first of several such cases, Town of Nottingham v. Cedar Waters, Inc., a 1978 case, the town sought to enjoin the Cedar Waters Corporation, with Bonser as the principal stockholder, from "maintaining a mobile home in the town without having it placed upon a `continuous permanent foundation of concrete or other masonry wall' as was required by the zoning ordinances then in effect."(fn29) The injunction was granted, and the defendant was ordered to "comply with the zoning ordinance or remove the mobile home within 30 days."(fn30) When the defendant failed to remove the mobile home within the allotted time, the court held it in contempt, ordered the corporation to pay attorneys' fees, and imposed a fine of $50 a day for each day of noncompliance.(fn31)

    A month later, the town requested a capias hearing, wherein it was claimed that the defendant corporation had not paid the fines and attorneys' fees as required by the order.(fn32) The court sentenced Bonser to five months in jail, "without notifying either him or the defendant that it was considering the matter to be criminal contempt."(fn33) A capias is an ancient common law order to a sheriff or police officer to literally bring the person before the court to have them show cause why they should not be held in contempt and jailed.

    On appeal, the New Hampshire Supreme Court ruled that the trial court impermissibly "converted a civil into a criminal contempt without following the proper procedural steps."(fn34) Writing for a unanimous court, Justice Douglas [this author, in a previous position] held that contempt is "an offense at common law," which is "separate and distinct from the matter in litigation out of which the contempt arose."(fn35) Civil and criminal contempt are distinguished by "[t]he character and purpose of the punishment."(fn36) "In civil contempt, the punishment is remedial, coercive, and for the benefit of the complainant."(fn37) In criminal contempt, the purpose is to "protect the authority and vindicate the dignity of the court."(fn38)

    The Court also distinguished direct from indirect contempt:

    "A direct contempt is one committed in the presence of the court and in its immediate view, all elements of the contempt being clearly observable by the court. . . Indirect contempt is one committed outside the presence of the court and without the judge having full personal knowledge of every element of the contempt. Establishment of the contempt thus depends upon proof of facts of which the court could not take judicial notice. . . The significance of the distinction between direct and indirect contempt lies in the procedural requirements to which the court must adhere."(fn39)

    The decision in Cedar Waters consolidated much of the available New Hampshire jurisprudence on the issue, as well as caselaw from various federal courts and the United States Supreme Court. With the exception of some recent modifications, it has remained good law to this day, and is still the basic framework for civil and criminal contempt in New Hampshire.

  4. Civil vs. Criminal Contempt

    In civil contempt, such as in cases of nonsupport, a jail sentence can be imposed without making the action punitive, as opposed to remedial. Thus, if the party complies or purges himself of the contempt he must...

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