Purging contempt: eliminating the distinction between civil and criminal contempt.

• Author: Grote, Paul A.

1. INTRODUCTION

   The specter of contempt hangs over the head of anyone who enters a courtroom. Movies and television may show an unwilling witness, an unruly defendant, or an overzealous attorney being threatened with contempt for disobeying the judge. other movies portray the contempt power in a different light:

   Judge Chamberlain Haller: If I hear anything other than "guilty" or "not guilty," you'll be in contempt. I don't even want to hear you clear your throat. I hope I've been clear. Now, how do your clients plead?

   Vinny Gambini: [slowly] I think I get the point.

   Judge Chamberlain Haller: No, I don't think you do. You're now in contempt of court! Would you like to go for two counts of contempt?

   Vinny Gambini: Not guilty.

   Judge Chamberlain Haller: Thank you. Bail will be set at $200,000.... Bailiff, please take Mr. Gambini into custody. (1)

   Humor aside, this exchange effectively emphasizes the judge's broad power of contempt. By merely speaking in a manner of which the judge disapproves, (2) an attorney may find himself in contempt of court. What may not be so obvious is that one can commit contempt of court when one is far away from the courtroom; (3) merely by disobeying a court order, one may be fined or ordered to spend some quality time on a prison cot. (4)

   Contempt is defined in general terms. For example, federal law describes contempt of court as "[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice" or "[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command. " (5) Common contemptuous acts include violations of court orders, courtroom disruptions, and refusals to testify. (6) The potential for abuse of the contempt power is readily apparent, and the broad definition, coupled with the fact that there is often no limit on the sanctions (7) a judge can impose for contempt of court, does little to comfort attorneys or litigants. (8)

   To curb this potential for abuse, the common law developed a system of classifying contempts that determines how much procedural protection a contemnor receives. (9) Contempts of court are classified according to two criteria. An act of contempt is either direct or indirect. (10) Furthermore, a contempt proceeding is either civil or criminal. (11) This creates four types of contempt: direct civil contempt, direct criminal contempt, indirect civil contempt, and indirect criminal contempt. Whether a contempt is civil or criminal has nothing to do with whether the underlying litigation is civil or criminal-a criminal defendant could be held in civil contempt, and likewise, a civil plaintiff could be held in criminal contempt. (12) More procedural rights are granted in cases of indirect contempts than in direct contempts. (13) Similarly, criminal contemnors receive more protection than civil contemnors. (14) This Note will examine the current state of the law of contempt, focusing on both federal and state law. In particular, it will focus on the distinction drawn between civil contempt of court and criminal contempt of court. After examining some criticisms of the distinction and its underlying rationale, ultimately the Note will argue that the distinction between civil and criminal contempt should be eliminated.

   Part II of this Note will give a brief overview of the law of contempt and major developments in Supreme Court jurisprudence that affect the distinction between civil and criminal contempt. This section will also include a discussion of International Union, United Mine Workers v. Bagwell, (15) a recent Supreme Court case on the distinction between civil and criminal contempt. Part III will focus on the general state of the law on civil and criminal contempt, relying on both state and federal law. This Part begins with a discussion of direct and indirect contempt, then moves to the distinction between civil and criminal contempt, and culminates by explaining some of the basic differences in the procedures and rights that govern contempt proceedings based on how the contempt is classified. Part IV of the Note criticizes the distinction between civil and criminal contempt. Part V begins by discussing an early attempt to reform contempt law via statute, argues for the abolition of the distinction between civil and criminal contempt, and finally discusses the appropriate method to implement reforms.

2. DEVELOPMENT OF THE LAW OF CONTEMPT

   1. Early Roots

      Contempt of court has existed since the twelfth century. (16) Contempt was considered a crime (17) and was punishable by death. (18) Moreover, a judge did not need personal knowledge of the contemptuous act to hold a person in contempt. (19) Blackstone's writings served as the basis for the initial adoption of the contempt power in America. (20) However, the precise origin of the distinction between civil and criminal contempt remains unclear. (21) In England, the distinction has been effectively abolished. (22)

      In the United States, the contempt power of the federal courts was granted by statute to the district and circuit courts when the Judiciary Act of (1789) established the lower courts. (23) Despite the ostensible legislative grant of the contempt power, the power of contempt is inherent in the courts and would have been vested in the courts in the absence of a specific legislative grant. (24) Not surprisingly, abuses of the contempt power occurred. (25) After the impeachment proceedings of a district judge called attention to these abuses, in 1831, Congress passed an act that placed restrictions on the contempt power of federal judges. (26) The Supreme Court upheld the statute curbing the contempt power of the lower federal courts, reasoning that these courts' "powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction." (27)

   2. Framing the Current State of Contempt Law

      The Court' s landmark decision in Gompers v. Bucks Stove & Range Co 228 attempted to elucidate the distinction between civil and criminal contempt. (29) Different procedures and rights apply depending on the classification of the contempt. (30) According to the Court, the "character and purpose" of the sanctions imposed often determined the class of contempt. (31) A civil contempt results in a remedial sanction that will benefit the opposing party. (32) A criminal contempt, in contrast, results in a sanction that is punitive in nature and will "vindicate the authority of the court." (33) The Court also noted that civil contempt would be appropriate when the contemnor refused to do an act required by the court and that criminal contempt would be appropriate when the contemnor performed a prohibited act. (34)

      Throughout the twentieth century, the Court granted more and more protections in contempt proceedings. (35) Persons convicted of criminal contempt may be pardoned just like persons convicted of other crimes. (36) For example, if a contemnor somehow entangles the judge in the incident (for example, by repeatedly antagonizing the judge) and if the contempt is not summarily punished, due process demands that the contempt proceeding be held in front of another judge. (37) For "serious" criminal contempts, there is a jury trial right. (38)

      The Court has refined the distinction between criminal and civil contempt as set forth in Gompers in two more recent cases. In Hicks ex rel. Feiock v. Feiock, (39) the Court clarified that when determining whether a contemnor was held in civil or criminal contempt, the proper inquiry is into the sanction itself. (40) The Court specifically rejected an inquiry into the lower court' s purpose when imposing the sanction. (41) The most recent Supreme Court case discussing the distinction between civil and criminal contempts is International Union, United Mine Workers v. Bagwell. (42) In Bagwell, the trial court initially found seventy-two violations of the injunction issued against the union. (43) The court issued a fine of $642,000 and stated that the union would incur a $20,000 fine for each future nonviolent violation of the injunction and a $100,000 fine for each violation that was violent. (44) After the dust and the underlying case settled, the trial court refused to vacate $52 million of fines that were to be paid to the state, although it did vacate the $12 million in fines that were to be paid to the opposing party. (45) The Supreme Court held that the remaining fines were criminal in nature, not civil. (46) The Court rejected the argument that just because the trial court prospectively announced the sanctions, the contempt was civil, because imposing such a sanction after the injunction was violated would have been a clear case of criminal contempt. (47) Furthermore, the Court recognized that Gompers had suggested that contempts could be classified on the basis of whether there was a failure to perform a mandated act or performance of a forbidden act. (48) According to the Court, the distinction between a failure to perform and a failure to forbear from acting might be useful in the "classic contempt scenario," but it nonetheless recognized that, in more complicated cases, the distinction is merely semantic. (49) The Court also emphasized that the union had no opportunity to purge the sanction once it was imposed. (50)

3. THE CURRENT STATE OF CONTEMPT

   Contempt of court is classified in two ways: the contempt may be deemed civil or criminal, and the contempt may be direct or indirect. Thus, there are four types of contempt: direct criminal contempt, direct civil contempt, indirect criminal contempt, and indirect civil contempt. (51) Because the procedural protections and rights offered to a party vary with the type of contempt, these distinctions serve an important purpose. (52)

   1. Direct and Indirect Contempt

      Determining whether a contemptuous act should be classified as direct or indirect is often relatively straightforward. (53) A direct contempt...