Part XXXIII Contempt Motions Continued Contempt Motions Continued

• Jurisdiction: New York

Part XXXIII — Contempt
Motions Continued

In the last issue, the Legal Writer gave an overview of criminal contempt, civil contempt, summary contempt, plenary contempt, and Penal Law contempt, and introduced criminal-contempt motions. In this issue, we continue our discussion of criminal-contempt motions.

Moving for Criminal Contempt Under the Judiciary Law

In the last issue, the Legal Writer discussed how to serve your criminal-contempt motion and the necessary components of your motion. The Legal Writer explained the warnings that must appear in bold on the face of your contempt motion. You must also clearly state in your motion that you’re seeking to punish for criminal contempt.

Penal Law § 215.50 — criminal contempt in the second degree — “mirrors almost the entire” Judiciary Law § 750.¹⁴¹⁴ But criminal contempt under the Judiciary Law isn’t a crime. Our focus is on criminal contempt under the Judiciary Law.

The burden of proof in a criminal-contempt Judiciary Law motion is the same as the burden of proof for criminal contempt under the Penal Law: beyond a reasonable doubt. The moving party’s burden of proof on criminal contempt is to prove beyond a reasonable doubt that you (or your client) willfully — meaning “intentionally” — disobeyed a clear and unequivocal court order. A criminal-contempt proceeding is “civil in nature, [and] vindication [i]s its objective, not remediation.”¹⁴¹⁵ The moving party need not prove that the contemnor’s conduct prejudiced the moving party.

Intent

In proving criminal contempt, you’ll need to show that the contemnor’s intent, a necessary element,¹⁴¹⁶ was to disobey the court’s clear and unequivocal mandate.

Clear and Unequivocal Mandate

Before a court holds you in criminal contempt, the moving party must show that you (or your client) disobeyed a court order. The order must be clear, explicit, precise, and unequivocal: “A clear court order avoids any uncertainty in the minds of those to whom it is addressed and who are charged with obedience.”¹⁴¹⁷ In its order, the court need not explicitly warn you of the consequences of disobeying its order.¹⁴¹⁸ But if a court commands you to do something and later punishes you for not complying with its order, the court “may not do so in language so vague and undefined that it does not afford fair notice and warning of what is required or forbidden.”¹⁴¹⁹ The court’s order “must have operative commands capable of enforcement, not merely expressions of abstract conclusions or principles of law.”¹⁴²⁰ The order need not include the word “ordered.”¹⁴²¹

Knowing About the Court’s Order

A court order need not be personally served on you before a court punishes you for contempt for violating the order.¹⁴²² An order is “served” when the recipient knows that the order exists and its terms. Hearing a court’s order in open court is just as binding as a signed, written order you’ve received from the court.¹⁴²³ The oral order in open court is “an order served upon all those assembled to whom it is directed.”¹⁴²⁴ You’re presumed to know of the court’s order if your attorney communicates the contents of the court’s order to you.¹⁴²⁵

Opposing Criminal Contempt

In response to the moving papers for criminal contempt, you may submit opposition papers. Your adversary may then submit reply papers.

Service

In opposing criminal contempt, you may contest service of the moving papers. If the court directed your adversary to serve the moving papers for contempt by a date certain and your adversary didn’t serve on time, tell the court in your opposition papers that the criminal-contempt motion (or order to show cause) must be denied for improper service. If the court required your adversary to serve the moving papers in person, by certified mail return-receipt requested, by first-class mail, or by some other method and your adversary failed to comply, argue that your adversary’s contempt papers must be denied for improper service. Failing to object to service waives improper service.

No Intent

You may also oppose criminal contempt by providing an affidavit from an individual — the putative contemnor — who has personal knowledge to show that person’s lack of intent in allegedly disobeying the court’s lawful mandate.¹⁴²⁶

You may demonstrate no intent by alleging that your ill health or financial difficulties made you unable to comply with the court order.¹⁴²⁷ A court might order an evidentiary hearing to determine the legitimacy of that defense.

No Lawful, Proper, or Valid Order

You may also argue that the court’s mandate wasn’t lawful, proper, or valid and thus that no lawful, proper, or valid mandate existed for you to obey. But orders that are “transparently invalid, void or frivolous need not be obeyed.”¹⁴²⁸

Even if the court’s order was erroneous and later reversed, a court may punish for criminal contempt if the court had jurisdiction (personal and subject matter) or if the court’s order wasn’t “void on its face, transparently invalid or frivolous.”¹⁴²⁹ The logic is that if the court didn’t have subject-matter jurisdiction, then the process itself was a nullity.¹⁴³⁰ A court’s contempt power isn’t a vehicle for the court to exceed its authority.¹⁴³¹

You Complied, Were Unable to Comply, or Will Comply

In your opposition papers, explain to the court that (1) you complied with the court’s lawful order in all respects; (2) you were unable to comply with the court’s order;¹⁴³² or (3) you’ll comply with the court’s order but you need more time to comply.

If you show that you’ve complied with the court’s order in all respects, the court ought not to find you in criminal contempt.

Inability to comply with the court’s order is a defense to a contempt motion. Showing that you’ve made a good-faith effort to comply will “negate[] an intention to disobey.”¹⁴³³ But good-faith effort is more than just stating that you tried and failed. You’ll need to demonstrate that you’ve made every reasonable effort to comply. Showing that you’ve made a “[s]ubstantial or diligent effort is not enough, even if performed in good faith.”¹⁴³⁴ Self-induced inability to comply — as a result of your own actions — is no defense.¹⁴³⁵

In your opposition papers, explain to the court that you’ll comply with the court’s order, but that you need more time to comply. Assert facts that would mitigate the court’s contempt adjudication.¹⁴³⁶ A court might not absolve you from criminal contempt, however. Your adversary might argue that if you had needed more time to comply with the court’s order, you should have moved in advance by order to show cause to seek more time to comply. Having not done that, you’re at the court’s mercy at the criminal-contempt phase.

Bankruptcy

Filing a bankruptcy petition doesn’t stay a criminal-contempt proceeding.¹⁴³⁷

Corporations and Non-Parties

A court may hold a corporation in contempt.¹⁴³⁸ The obvious punishment of a corporation for criminal contempt is a fine. (The Legal Writer discusses the punishment for criminal contempt below.) A court’s command as to a corporation is a command to its officers and agents, once they know of the command, to comply with the court’s order.¹⁴³⁹ If a corporate officer impedes efforts to comply with the court’s order or fails to take steps to comply with the order, the officer, like the corporation, is subject to punishment for contempt.¹⁴⁴⁰

Non-parties may be punished for criminal contempt only if they “act as servants or agents of the parties, or, if with knowledge of the order’s terms, they act collusively with parties” to disobey a court order.¹⁴⁴¹

Attorneys

An attorney who misinterprets the meaning and validity of the court’s order and gives you bad advice may not be held in criminal contempt. The attorney may be held in criminal contempt, however, if the attorney exceeds the attorney’s “limitation and counsels the client to disregard or disobey the order.”¹⁴⁴² Also, your attorney’s advice “may be considered in mitigation of punishment.”¹⁴⁴³ On the other hand, your attorney’s “mistaken view of the law is no defense” to criminal contempt.¹⁴⁴⁴

Appealed Orders and Reversals

If you disagree with the court’s order, you may try to get the court to reconsider its initial order — mandating or prohibiting you from doing an act — by moving to renew or reargue.

If that fails, obtain a stay or appeal, or both. It is no defense to criminal contempt that you had appealed the court’s order when you disobeyed it.¹⁴⁴⁵ If you didn’t get a stay of the order during the pendency of the appeal, “the requirement...