Contempt Demystified

• Publication year: 2016
• Author: Roger Rombro

Contempt Demystified

Roger Rombro

S. Roger Rombro, CFLS, is a graduate of the University of Pennsylvania and Tulane University School of Law, where he studied comparative law. He clerked for United States Ninth Circuit Judge Stanley Barnes after law school, immediately following which he was a Deputy District Attorney for the County of Los Angeles. After an extensive civil and criminal trial practice, he focused on family law. He served for over 20 years on State Bar children's issues sub-committees, and he is currently a member of the Executive Committee of the Family Law Section of the State Bar where he serves as the Membership Chair.

The term "contempt" is unfortunately clouded by misconceptions, blurred labeling, and arguably obfuscatory appellate definitions. This is due in part to the overlapping nature of the term "contempt," which includes; civil, criminal and governmental proceedings; the origin of contempt as an extension of a monarch's power; and the myriad of statutes that address contempt procedures.

A contempt proceeding is always a cause for concern. To members of the bench, questions arise as to whether aspects of criminal law will be involved with consequential constitutional issues. These same issues are also of concern to members of the bar, as are associated questions as to what procedures will be required to successfully bring, or prevent, the adjudication of a contempt action. Consequently, in addressing contempt one must recognize that contempt is neither a creature of the Roman Civil Law nor is it a manifestation of the English Common Law. Instead, contempt originated as a tool adopted by English monarchs to address insubordinate conduct. This tool was subsequently implemented by the monarchs' judges and magistrates as royal emissaries to maintain or address insubordinate conduct in the courts.

As originally implemented in the English courts, monarchs, judges, and magistrates used contempt of court to compel compliance with the rules governing the courts and to maintain respect within judicial proceedings. From its inception, contempt was available only to judges and magistrates. Contempt was not available to either litigants or to their representatives because they did not and do not have the authority of a monarch or a government. Litigants and their representatives do not need to maintain order and respect for the court; that is the judicial officer's responsibility.

Some California family law practitioners view contempt proceedings as a relatively inexpensive means of enforcing support orders. However, using contempt proceedings as an enforcement tool invites both misuse of, and derision from, the bench. Confusion arises when litigants or their attorneys seek to have the bench exercise its contempt powers and, when presented with such applications, judicial officers may occasionally resent what may be perceived as the inappropriate application of judicial power. This is one major reason why only the court may make a finding of contempt, and only the court can issue a contempt order.

Litigation is society's means by which disputes are resolved and grievances redressed. This is true irrespective of whether a grievance arises in contract, tort, or from conduct that requires prosecution by the state and thus be construed as a criminal proceeding. A contempt of court action, however, neither addresses grievances nor provides remedies. Rather, in its simplest form, contempt is a means by which the court maintains and preserves the integrity of the law. Since contempt may neither resolve a dispute nor remedy a grievance, a litigant's application to a court for a finding of indirect contempt is awkward because it is an invasion of a bench officer's prerogatives and perceived neutrality.

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Confusion also arises with reference to who, and by whom, a contempt may be prosecuted, i.e, a bench officer, a government prosecutor, or a civil litigant. Further confusion may arise in determining whether a contempt proceeding is part of pending litigation or whether it is conducted as an independent action. Finally, confusion arises in attempting to discern the result sought by an indirect contempt proceeding: that is, whether punitive or remedial.

This article attempts to clarify the unique nature of an indirect contempt proceeding so that the procedure will be more effectively utilized.

1. Basic differences between the English Common Law and the Roman Civil Law.

Although there are differing opinions as to the origin of the Roman Civil Law, the consensus is that it began with the codification of local laws as they then existed in Rome around the sixth century B.C.E. This codification resulted in what is referred to as the "Twelve Tables." The purpose of the codified rules was to give Roman citizens grounds upon which they could seek recourse for unresolved disputes, all of which we would construe today as civil in nature. Moreover, reference to the Roman Law as "civil law" is because that law was written for the citizens of Rome. The word for Roman citizen was "civile."¹When a Roman citizen was unable to resolve a dispute, he would appear before a magistrate to seek redress for the grievance. In this application, the Roman citizen would make reference to a section or rule contained within the Twelve Tables as the authority justifying an award of the relief sought.²

The Roman Civil Law was modified over time, including significant re-codifications by the Byzantine Emperor Justinian I in the sixth century, and again, with significance, during the reign of Napoleon.

The principal difference between the Roman Civil Law and the English Common Law is in the focus of authority for legal precedent. Under the Roman Civil Law system, the codified rule is the source of authority with the principal to be applied in the law.³ Thus, under the Roman Civil system of law, the codified law as enacted by the government or legislature controls.

The English Common Law differs from the Roman Civil Law system in that the ultimate authority in resolving a question of law is the manner in which such question may have been previously resolved by a court, as a precedent, and if not previously decided, then by a determination of the existing custom. To use Britain's renowned legal commentator Blackstone's phrase, the Common Law was euphemistically referred to as the "unwritten law."⁴ It is not that the common law is unwritten law, but rather that codified law is not the ultimate authority to be used in resolving a question of law. Thus, the case as precedent is the authority and not the statute. Ironically, in contrast to the Roman Civil Law in which the citizens of Rome were the moving force in its creation, the English Common Law is generally considered to have been the result of efforts made by an English monarch. According to Winston Churchill, the Norman King Henry II is credited as having established a "common law" for all English citizens to be applied in the King's courts, which were at that time the Court of Common Pleas and King's Bench.⁵ The purpose of the institution of the common law was to make the King's courts more appealing to prospective litigants than the feudal courts, which tended to be focused upon preserving the powers of the feudal lords. Not only did the common law provide authority to guide its implementation as the basis of other court decisions and rulings, but Henry II also implemented, for the first time, trial by jury.⁶

During the California Constitutional Convention in 1849, attempts were made to have California adopt the Louisiana Civil Code, and thereby to follow the Roman Civil Law system as it was then enacted in Louisiana.⁷The following year, a petition was submitted to the California Legislature that sought to have California adopt the English Common Law as opposed to the Roman Civil Law. The petitioners contended that application of the Common Law would bring an end to the vigilante justice occurring throughout the state, and principally in San Francisco. While the petition was apparently not adopted, the Legislature did adopt the Common Law as the basis for authority in California on April 13, 1850. Although the Common Law was adopted, it did not replace all areas of the Civil Law, the most notable of which to family law practitioners is the law relating to community property. The Common Law was adopted as the method by which legal authority was to be derived. California nevertheless codified its laws, beginning with the Civil Code in 1849, and California continues to codify its laws.⁸

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2. Contempt has no place in Roman Law.

Both by Legislative dictate⁹ and by judicial recognition¹⁰, California adheres to the Common Law in discerning what law is to be applied in the resolution of disputes. California nevertheless remains significantly impacted by Roman Law¹¹ Roman Law, however, did not have a contempt procedure, and in those countries that employ the Roman Law system, contempt is not part of their jurisprudence.

For similar reasons, contempt was an unnecessary component of the common law. The common law was a subtle creation of King Henry II of England who sought to make the King's courts more attractive to litigants than the feudal courts, thereby giving greater power to the English monarchy.¹² Henry II's courts allowed for both new trial methods and for review of trial court rulings. The trial courts employed resolution by the litigants' contemporaries by instituting the novel trial by jury, and trial court rulings were reviewed by reference to precedents rather than to written rules.¹³

3. The origin of contempt of court.

As a result of the routine use by judges and magistrates of the King's contempt powers, contempt became a normal experience in the King's courts. From its inception in the twelfth century through at least the early part of the eighteenth century, contempt was limited to those events that occurred in the presence of the judge or magistrate.¹⁴ Beginning around the...