We do not hold people in contempt for failing to pay money judgments. Can send them to collections, but cannot be sent to jail for failure to pay (except in child support cases)

Big Picture Q: How much power do we invest in the judge to enable her to deal with people’s refusal to comply vs. how much risk of abuse by concentrating so much power in a single official

Government by Injunction Debate: Contempt power can be used to multiply penalties far beyond what legislature has proscribed (definitely apparent in Bagwell). Using contempt power to magnify legislature created penalties is part of the controversy here.

RULE: Refusal to comply with a specific order of the court (i.e. an injunction) is contempt of Court

Three Types of Contempt – the Classic Formulation

Criminal Contempt: Fixed Punishment for a past violation. No getting out of it by doing something, you are being punished for violating the court order
1. Violations of the court order must be willful to constitute criminal contempt
2. Prosecuted by the sovereign, with substantially full protections of criminal procedure
  1. Collateral Bar Rule Applies: Offense is complete when defendant willfully violates an injunction, even if the injunction is later reversed. Thus, plaintiff cannot challenge the validity of the injunction in a prosecution for criminal contempt
Coercive Civil Contempt: Conditional penalty imposed (or threatened) to coerce compliance (i.e. you go to jail until you comply with the court order)
Compensatory Civil Contempt: Compensation or restitution to plaintiff for harm caused or profits gained by the contempt. Essentially a normal damages/restitution action that I triggered not by a violation of the law, but by the violation of a court order
1. Both forms of civil contempt are prosecuted by civil plaintiff with civil procedure
2. The contempt (but not the amount of the profits) must be proved by clear and convincing evidence
3. Violation does not need to have been willful, but if it was not willful, does it make any sense to really try to coerce?

Hybrid Three-Step Contempt

Find First Round of Violations, impose some penalty for those: Criminal
Threaten Future Penalties: Coercive Civil
Enforce what was Threatened: Bagwell analysis
1. Lower courts (not Bagwell) say the third step is a logical consequence of the previous step, so if previous step is civil then so is this step
2. Bagwell says to focus on three factors for this third step to determine if criminal or civil (uncertain how many are required to constitute criminal in Bagwell all three were present):
  1. (1) In/Out of Court: In Bagwell, contempt did not happen in the court room (judge did not witness the contempt)
  2. Complexity: Bagwell dealt with continuous violations over a long period of time
  3. Size of the Fine: $52 million fine in Bagwell – sheer fact of the size of this fine for past behavior should make this criminal in Bagwell – Laycock

How much abuse will we risk to get how many bad guys?

Rule for Coercive Civil Contempt: Since the legal justification for civil contempt is to force compliance, commitment for that purpose cannot continue if it does not have or has lost its coercive power and thereby become punitive (failed its purpose, impossible, or just stubborn D). Anyanwu v. Anyanwu

Standard of review whether there is a “substantial likelihood” that continued incarceration would accomplish the purpose of casing the person confined to comply with the order on which confinement is based [Anyanwu]

Ignoring a declaratory judgment is NOT contempt of court because there is no order/command in a declaratory judgment

Perpetual Coercion: Leaving him in jail until he complies, potentially forever

Argument for leaving him in there forever: Undermines (deterrent effect of) contempt power from day 1 if you hold out prospect that is D holds out he will get out of this without complying
Counterarguments:
- Purpose: purpose is to coerce compliance, if it has become impossible to coerce, no reason to leave him in there anymore
  - Counter to this: Merely asking the question of whether it has become impossible to comply reduces the coercive effect in this case and all others
- Humanitarian: tough on D to be in jail for the rest of his life, and it is expensive both in real money to society but also extremely burdensome to the defendant
- Risk of Error: Some Ds are telling the truth – what you are trying to get them to do may actually be impossible
- Comparative Criminal Punishment: Sentences for some extremely heinous crimes are not even life in prison, essentially anything short of murder. Why should contempt be?

Anticipatory Contempt: Contempt generally requires disobedience of a specific, written order, but court in Griffin v. County School Board issued contempt with no order

Griffin and cases it relies on are probably just wrong, but they happen. FORK: Look for obvious evasion of what is predictably to be the likely order, but even that in theory should still not be contempt
- Argument for not holding them in contempt:
  - Plaintiff could have asked for an injunction pending an appeal, they did not do that
  - Can generally do what they want until someone tells them different, and nobody told them they...

#11388 - Contempt - Modern American Remedies 4th Ed. Laycock

About Oxbridge

More Modern American Remedies 4th Ed. Laycock Samples