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Civil contempt, criminal contempt or substantive crime? Part I

Civil contempt, criminal contempt or substantive crime? Part I

This post and the following will illustrate the interplay between the law of contempt in Tennessee courts, both civil and criminal, and/or the commission and punishment of a crime, potentially for the same conduct. The Supreme Court of Tennessee has cogently written that the subject of contempt continues to stymy the bench and bar both in its definition and in its application.

Actions for contempt most often arise out of pending or prior litigation before a court. The statute defining actionable contempts is Tennessee Code Annotated § 29-9-102. Consider the following hypothetical set of facts:

Pat and Chris are divorced from one another. Their Marital Dissolution Agreement (MDA) includes provisions that prohibit each from harassing, disparaging or abusing the other. Chris, however, purchases billboard space along the arterial highway in Pat’s neighborhood, bearing the message, “Pat is a no good, stinking weasel.” 

After reading the billboard message, Pat telephones Chris repeatedly during the early morning hours and leaves threatening messages on Chris’s voice mail.

What are the remedies to these formerly married litigants?

This first installment will consider Pat’s remedies vis-à-vis Chris. Pat may wish to petition the Court that granted the divorce to find that Chris’s purchase and maintenance of the billboard is actionable as civil contempt and/or to order Pat to remove the offending message. Pat may also seek to punish Chris for criminal contempt for past conduct in violating the non-disparagement provision of the MDA. Pat, however, must elect which remedy to seek.
Tennessee Code Annotated § 29–9–102(3) empowers the courts to use their contempt powers in circumstances involving “[t]he willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts.” This provision enables the courts to maintain the integrity of their orders.

Civil contempt:
Civil contempt is remedial in character and is applied when a person refuses or fails to comply with a court order. A civil contempt action is brought to force compliance with the order and thereby secure private rights established by the order. Civil contempt claims based upon an alleged disobedience of a court order have four essential elements. First, the order alleged to have been violated must be “lawful.” Second, the order alleged to have been violated must be clear, specific, and unambiguous. Third, the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. Fourth, the person’s violation of the order must be “willful.”

The threshold issue in any contempt proceeding is whether the order alleged to have been violated is “lawful.” A lawful order is one issued by a court with jurisdiction over both the subject matter of the case and the parties. An order is not rendered void or unlawful simply because it is erroneous or subject to reversal on appeal. Erroneous orders must be followed until they are reversed. The determination of whether a particular order is lawful is a question of law.

The second issue involves the clarity of the order alleged to have been violated.   A person may not be held in civil contempt for violating an order unless the order expressly and precisely spells out the details of compliance in a way that will enable reasonable persons to know exactly what actions are required or forbidden.

The third issue focuses on whether the party facing the civil contempt charge actually violated the order. This issue is a factual one to be decided by the court without a jury. The quantum of proof needed to find that a person has actually violated a court order is a preponderance of the evidence, meaning more likely than not.

The fourth issue focuses on the willfulness of the person alleged to have violated the order. Willful conduct, for purposes of civil contempt, consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is “willful” if it is the product of free will rather than coercion. Thus, a person acts “willfully” if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing.

Let’s consider our hypothetical with Pat and Chris in light of the above. For Pat to prove that Chris’s conduct regarding the billboard is contumacious, Pat would need to prove, by a preponderance of evidence:

1) That the divorce court had subject matter and personal jurisdiction to issue the divorce decree and approve the MDA, including the non-disparagement clause;
2) That the non-disparagement provision of the MDA is sufficiently clear that an ordinary person in Chris’s position would understand that posting the message on the billboard is prohibited;
3) That Chris, and not someone else instead, caused the billboard to bear the offending message; and
4) That Chris acted volitionally and intended to perform the act(s) constituting contempt.

If all of the above is proven to be more likely than not the case, the court that issued the divorce could find Chris to be in civil contempt. Suppose the Court does so. What is the available remedy? After a finding of contempt, courts have several remedies available depending upon the facts of the case. A court can imprison an individual to compel performance of a court order. This remedy is available only when the individual has the ability to comply with the order at the time of the contempt hearing.

Tenn. Code Ann. § 29-9-104(a) provides that “If the contempt consists in an omission to perform an act which it is yet in the power of the person to perform, the person may be imprisoned until such person performs it.” When a trial court orders imprisonment after finding civil contempt, the confinement is remedial and coercive in nature, designed to compel the contemnor to comply with the court’s order. Consequently, compliance with the order will result in the contemnor’s immediate release from confinement. It is said that in a civil contempt case, the contemnor “carries the keys to his prison in his own pocket.” In our hypothetical the Court could order Chris to cause the offending billboard message to be removed, on pain of incarceration if that removal is not effectuated, or the Court could order Chris jailed until the message is removed – provided that the Court makes an affirmative finding that Chris is able to comply with the order.

What if Chris, however, lacks the ability to cause removal of the message – suppose that by the time of the hearing, someone else had rented the billboard space and posted a different message. The hiring of the billboard, nevertheless, was itself an act forbidden by the MDA. Tenn. Code Ann. § 29-9-105 provides that “If the contempt consists in the performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters and person in status quo, or by the payment of damages.” Upon a finding of civil contempt, the divorce court could order Chris to pay Pat damages for injury to reputation or other actual damages.

If an act in willful disobedience of a court order is complete, and the status quo cannot be restored or remedied by payment of damages, the available remedy is through criminal contempt proceedings.

Criminal contempt:
In our hypothetical, Chris’s conduct in authorizing the billboard may have violated the provisions of the MDA prohibiting harassing and/or disparaging Pat. This conduct may be punishable as criminal contempt apart from any remedial measures. Criminal contempts are “intended to preserve the power and vindicate the dignity and authority of the law, and the court as an organ of society.” The Supreme Court of Tennessee has opined:

Contempt proceedings are sui generis and are incidental to the case out of which they arise. Doe v. Bd. of Prof’l Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003). Although contempt proceedings are traditionally classified as “civil” or “criminal,” in point of fact, contempt proceedings are neither wholly civil nor criminal in nature and may partake of the characteristics of both. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Bowdon v. Bowdon, 198 Tenn. 143, 278 S.W.2d 670, 672 (1955). “It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases.” Gompers, 221 U.S. at 441, 31 S.Ct. 492. Tennessee courts are vested with the authority to punish both types of contempt with either a fine, a period of confinement, or both. Tenn.Code Ann. §§ 29–9–103(a), –104 (2012). However, unless otherwise specified, fines may not exceed fifty dollars and imprisonment may not exceed ten days. Id. § 29–9–103(b).

Davis v. State, supra, 417 S.W.3d at 435. If Pat seeks criminal contempt sanctions, Chris cannot avoid those sanctions by removing the billboard, by paying damages, or otherwise.

The character and purpose of the relief sought by the contempt Petitioner determines whether the contempt action is civil or criminal in nature. The inquiry is whether the plaintiff is seeking compliance with the order by confining the defendant until he purges himself of contempt, or seeks to punish the defendant for a specific willful violation of the order.

Criminal contempt is often regarded as a “crime” because certain substantial rights and constitutional privileges afforded criminal defendants are also afforded criminal contemnors.

For example, indirect criminal contempt may only be punished after the accused contemnor has been given notice and an opportunity to respond to the allegations at a hearing. An alleged criminal contemnor, like a person charged with a criminal offense, is presumed to be innocent, must be proven guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. An alleged contemnor is also entitled to an attorney and may have an attorney appointed to represent him at no cost if he is not able to afford one.

Contemnors are not entitled to a jury trial if the criminal contempt is not “serious” enough to require the protection of the constitutional right to a jury trial. No jury trial is required if the contempt is punished by confinement of six months or less. A contempt punished by a two-year term of imprisonment is a “serious offense” to which the right to trial by jury applies.

Contempt prosecutions need not be initiated by indictment or presentment. A criminal contempt proceeding may be initiated by the Court or by a private litigant. District attorneys general may, but need not, prosecute criminal contempts. A court may appoint a private attorney to prosecute, which may be the attorney who represents the contempt Petitioner in the antecedent litigation.

A criminal contempt proceeding is initiated on notice to the alleged contemnor, given either orally in open court or by written order. The notice should: (a) state the time and place of the hearing; (b) allow the alleged contemnor a reasonable time to prepare a defense; and (c) state the essential facts constituting the criminal contempt charged and describe it as such. The alleged contemnor is entitled to bail pending the hearing. The alleged contemnor is entitled to notice of the various constitutional rights applicable in criminal contempt proceedings.

The burden is on the contempt Petitioner to prove every element of the contempt beyond a reasonable doubt. Criminal acts are deemed to be “willful” when the person “acts intentionally with respect to the nature of the conduct ... when it is the person’s conscious objective or desire to engage in the conduct. ...” Tenn. Code Ann. § 39-11-302(a). The Tennessee Supreme Court has applied this definition of “intentional” conduct to the requirement that a contemnor act willfully.
Criminal contempt is a misdemeanor for sentencing purposes. Misdemeanor sentencing provisions of the Tennessee Criminal Sentencing Reform Act of 1989, Tenn.Code Ann. §§ 40-35-101 through -505, apply.

Where a contemnor has been found to have committed multiple acts of criminal contempt, consecutive sentencing may apply. Tenn.Code Ann. § 40-35-115(b)(7). Although statutory criteria may support the imposition of consecutive sentences, the overall length of the sentence must be “justly deserved in relation to the seriousness of the offense[s],” Tenn. Code Ann. § 40-35-102(1), and “no greater than that deserved” under the circumstances, id. at § 40-35-103(2).

Part II of this post will consider what Chris’s remedies against Pat may be for the harassing telephone calls in out hypothetical.


SOURCES:

  1. Baker v. State, 417 S.W.3d 428, 434 (Tenn. 2013).
  2. 29-9-102. Scope of power. -- The power of the several courts to issue attachments, and inflict punishments for contempts of court, shall not be construed to extend to any except the following cases:
  3. (1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice;
    (2) The willful misbehavior of any of the officers of such courts, in their official transactions;
    (3) The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;
    (4) Abuse of, or unlawful interference with, the process or proceedings of the court;
    (5) Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or
    (6) Any other act or omission declared a contempt by law.
  4. Our friend Pat hates weasels with the passion of Get Fuzzy’s Bucky Katt. Chris is aware of Pat’s hatred.
  5. Criminal contempt is intended to preserve the power and vindicate the authority of the court. Civil contempt is typically brought to enforce private rights.
  6. Black v. Blount, 938 S.W. 2d 394, 398 (Tenn. 1996).
  7. Civil and criminal contempt proceedings should not be tried simultaneously because of the significant differences in the respective procedural rights and burdens of proof. Moody v. Hutchinson, 159 S.W.3d 15, 28 n.8 (Tenn.App. 2004).
  8. Konvalinka v. Chattanooga-Hamilton County Hospital Authority, 249 S.W.3d 346, 354 (Tenn. 2008); Wilson v. Wilson, 984 S.W.2d 898, 904 (Tenn. 1998).
  9. Baker v. State, supra, 417 S.W.2d at 436.
  10. Tenn. Code Ann. § 29–9–102(3).
  11. Doe v. Board of Professional Responsibility, supra, 104 S.W.3d at 471 (holding that a person cannot be held in contempt unless he or she violates a “specific order”); Long v. McAllister–Long, 221 S.W.3d 1, 14 (Tenn.App. 2006)
  12. Tenn. Code Ann. § 29–9–102(3).
  13. Ibid.
  14. Konvalinka, supra, 249 S.W.3d at 355.
  15. The test of willfulness for criminal contempt is more stringent, as will be shown below.
  16. The power to punish for contempt is reserved to the court against which the contempt is committed, i.e. the court whose order is disobeyed.  Doe v. Board of Professional Responsibility, supra, 104 S.W.3d at 474; State v. Gray, 46 S.W.3d 749, 750 (Tenn.App. 2000).
  17. Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000).
  18. Baker v. State, supra, 417 S.W.3d at 436.
  19. See, Overnite Transportation Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507 (Tenn. 2005).
  20. Doe v. Board of Professional Responsibility, supra, 104 S.W.3d at 474.
  21. Gompers, supra, 221 U.S. at 441; Robinson v. Fulliton, 140 S.W.3d 304, 309 (Tenn.App. 2003).
  22. Davis, supra, at 436.
  23. Id., at 437; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).
  24. Davis, at 437-38; Wilson v. Wilson, supra, 984 S.W.2d at 900.
  25. Rule 42(b)(2), Tennessee Rules of Criminal Procedure.  
  26. Id., at § (b)(1).
  27. Id., at § (b)(3).
  28. In re Sneed, 302 S.W.3d 825, n.1 (Tenn. 2010).
  29. Id., 302 S.W.3d at 828.
  30. Id., 302 S.W.3d at 828-29.
Civil contempt, criminal contempt or substantive c...