The Contempt Power

ANCILLARY POWERS OF FEDERAL COURTS

The Contempt Power

Categories of Contempt.—Crucial to an understanding of the history of the law governing the courts’ powers of contempt is an awareness of the various kinds of contempt. With a few notable exceptions,¹⁶¹ the Court has consistently distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil contempt has been traditionally viewed as the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature, may be purged by obedience to the court order, and does not involve a sentence for a definite period of time. The classic criminal contempt is one where the act of contempt has been completed, punishment is imposed to vindicate the authority of the court, and a person cannot by subsequent action purge himself of such contempt.¹⁶² Criminal contempt, unlike civil contempt, implicates procedural rights attendant to prosecutions.¹¹ In International Union, UMW v. Bagwell,¹⁶³ the Court formulated a new test for drawing the distinction between civil and criminal contempts, which has important consequences for the procedural rights to be accorded those cited. Henceforth, the imposition of non-compensatory contempt fines for the violation of any complex injunction will require criminal proceedings. This case, as have so many, involved the imposition of large fines (here, $52 million) upon a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike. The Court was vague with regard to the standards for determining when a court order is “complex” and thus requires the protection of criminal proceedings.¹⁶⁴ Much prior doctrine remains, however, as in the distinction between remedial sanctions, which are civil, and punitive sanctions, which are criminal, and between in-court and out-of-court contempts. In the case of Shillitani v. United States,¹⁶⁵ the defendants were sentenced by their respective District Courts for two years imprisonment for contempt of court; the sentence contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury. On appeal, the Supreme Court held that the defendants were in civil contempt, notwithstanding their sentence for a definite period of time, on the grounds that the test for determining whether the contempt is civil or criminal is what the court primarily seeks to accomplish by imposing sentence.¹⁶⁶ Here, the purpose was to obtain answers to the questions for the grand jury, and the court provided for the defendants’ release upon compliance; whereas, “a criminal contempt proceeding would be characterized by the imposition of an unconditional sentence for punishment or deterence.”¹⁶⁷ The issue of whether a certain contempt is civil or criminal can be of great importance as demonstrated in the dictum of Ex parte Grossman,¹⁶⁸ in which Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, noted that he may not pardon a civil contempt. Notwithstanding the importance of distinguishing between the two, there have been instances where defendants have been charged with both civil and criminal contempt for the same act.¹⁶⁹

A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect contempt—whether civil or criminal in nature. Direct contempt results when the contumacious act is committed “in the presence of the Court or so near thereto as to obstruct the administration of justice;”¹⁷⁰ indirect contempt is behavior which the Court did not itself witness.¹⁷¹ The nature of the contumacious act, i.e., whether it is direct or indirect, is important because it determines the appropriate procedure for charging the contemnor. As will be evidenced in the following discussion, the history of the contempt powers of the American judiciary is marked by two trends: a shrinking of the court’s power to punish a person summarily and a multiplying of the due process requirements that must otherwise be met when finding an individual to be in contempt.¹⁷²

The Act of 1789.—The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.¹⁷³ By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.¹⁷⁴ In the United States, the Judiciary Act of 1789 in section 17¹⁷⁵ conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to mis-behavior in the presence of the courts, “or so near thereto as to obstruct the administration of justice,” to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.¹⁷⁶

An Inherent Power.—The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,¹⁷⁷ in which Justice Field for the Court expounded principles full of potentialities for conflict. He declared: “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, that there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their “powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction.”¹⁷⁸ With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment.

By 1911, the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.¹⁷⁹ In Michaelson v. United States,¹⁸⁰ the Court intentionally placed a narrow interpretation upon those sections of the Clayton Act¹⁸¹ relating to punishment for contempt of court by disobedience of injunctions in labor disputes. The sections in question provided for a jury upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the United States or of those of the State where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that “the attributes which inhere in the power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative.” The Court mentioned specifically “the power to deal summarily with contempt committed in the presence of the courts or so near thereto as to obstruct the administration of justice,” and the power to enforce mandatory decrees by coercive means.¹⁸² This latter power, to enforce, the Court has held, includes the authority to appoint private counsel to prosecute a criminal contempt.¹⁸³ While the contempt power may be inherent, it is not unlimited. In Spallone v. United States,¹⁸⁴ the Court held that a district court had abused its discretion by imposing contempt sanctions on individual members of a city council for refusing to vote to implement a consent decree remedying housing discrimination by the city. The proper remedy, the Court indicated, was to proceed first with contempt sanctions against the city, and only if that course failed should it proceed against the council members individually.

First Amendment Limitations on the Contempt Power.— The phrase “in the presence of the Court or so near thereto as to obstruct the administration of justice” was interpreted so broadly in Toledo Newspaper Co. v. United States¹⁸⁵ as to uphold the action of a district court judge in punishing a newspaper for contempt for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but “the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty.” Similarly, the test whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but “the reasonable tendency of the acts done to influence or bring about the baleful result . . . without reference to the consideration of how far they may have been without influence in a particular case.”¹⁸⁶ In Craig v. Hecht,¹⁸⁷ these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceedings. The decision in the Toledo Newspaper case, however, did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons, it was reversed in Nye v. United States,¹⁸⁸ and the theory of constructive contempt based on the “reasonable tendency” rule was rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the court was sitting and were held not to put the persons responsible for them in contempt of court. Although Nye v. United States was exclusively a case of statutory construction, it was significant from a constitutional point of view because its reasoning was contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of, and contrary to, congressional regulation of this power. Bridges v. California¹⁸⁹ was noteworthy for the dictum of the majority that the contempt power of all courts, federal as well as state, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.¹⁹⁰

A series of cases involving highly publicized trials and much news media attention and exploitation,¹⁹¹ however, caused the Court to suggest that the contempt and other powers of trial courts should be utilized to stem the flow of publicity before it can taint a trial. Thus, Justice Clark, speaking for the majority in Sheppard v. Maxwell,¹⁹² noted that “[i]f publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but pallatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. Neither prosecutors, counsel for defense, the accused, witness, court staff nor law enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures.” Though the regulation the Justice had in mind was presumably to be of the parties and related persons rather than of the press, the potential for conflict with the First Amendment is obvious as well as is the necessity for protection of the equally important right to a fair trial.¹⁹³

Due Process Limitations on Contempt Power: Right to Notice and to a Hearing versus Summary Punishment.—Included among the notable cases raising questions concerning the power of a trial judge to punish summarily for alleged misbehavior in the course of a trial is Ex parte Terry,¹⁹⁴ decided in 1888. Terry had been jailed by the United States Circuit Court of California for assaulting in its presence a United States marshal. The Supreme Court denied his petition for a writ of habeas corpus. In Cooke v. United States,¹⁹⁵ however, the Court remanded for further proceedings a judgment sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: “The important distinction . . . is that this contempt was not in open court.... To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.”¹⁹⁶

As to the timeliness of summary punishment, the Court at first construed Rule 42(a) of the Federal Rules of Criminal Procedure, which was designed to afford judges clearer guidelines as to the exercise of their contempt power, in Sacher v. United States,¹⁹⁷ as to allow “the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay [would] prejudice the trial.... [On the other hand,] if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.”¹⁹⁸ However, subsequently, interpreting the due process clause and thus binding both federal and state courts, the Court held that, although the trial judge may summarily and without notice or hearing punish contemptuous conduct committed in his presence and observed by him, if he does choose to wait until the conclusion of the proceeding he must afford the alleged contemnor at least reasonable notice of the specific charge and opportunity to be heard in his own defense. Apparently, a “full scale trial” is not contemplated.¹⁹⁹

Curbing the judge’s power to consider conduct as occurring in his presence, the Court, in Harris v. United States,²⁰⁰ held that summary contempt proceedings in aid of a grand jury probe, achieved through swearing the witness and repeating the grand jury’s questions in the presence of the judge, did not constitute contempt “in the actual presence of the court” for purposes of Rule 42(a); rather, the absence of a disturbance in the court’s proceedings or of the need to immediately vindicate the court’s authority makes the witness’ refusal to testify an offense punishable only after notice and a hearing.²⁰¹ Moreover, when it is not clear the judge was fully aware of the contemptuous behavior when it occurred, notwithstanding the fact it occurred during the trial, “a fair hearing would entail the opportunity to show that the version of the event related to the judge was inaccurate, misleading, or incomplete.”²⁰²

Due Process Limitations on Contempt Power: Right to Jury Trial.—Originally the right to a jury trial was not available in criminal contempt cases.²⁰³ But in Cheff v. Schnackenberg,²⁰⁴ it was held that when the punishment in a criminal contempt case in federal court is more than the sentence for a petty offense, the Court drew the traditional line at six months, a defendant is entitled to trial by jury. Although the ruling was made pursuant to the Supreme Court’s supervisory powers and was thus inapplicable to state courts and presumably subject to legislative revision, two years later the Court held that the Constitution did require jury trials in criminal contempt cases in which the offense was more than a petty one.²⁰⁵ Whether an offense is petty or not is determined by the maximum sentence authorized by the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses and more serious ones at six months imprisonment. Although this case involved an indirect criminal contempt, willful petitioning to admit to probate a will known to be falsely prepared, the majority in dictum indicated that even in cases of direct contempt a jury will be required in appropriate instances. “When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power.”²⁰⁶ Presumably, there is no equivalent right to a jury trial in civil contempt cases,²⁰⁷ although one could spend much more time in jail pursuant to a judgment of civil contempt than would be the case with most criminal contempts.²⁰⁸ The Court has, however, expanded the right to jury trials in federal civil cases on nonconstitutional grounds.²⁰⁹

Due Process Limitations on Contempt Powers: Impartial Tribunal.—In Cooke v. United States,²¹⁰ Chief Justice Taft uttered some cautionary words to guide trial judges in the utilization of their contempt powers. “The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.” Cornish v. United States, 299 F. 283, 285; Toledo Newspaper Co. v. United States, 237 F. 986, 988. “The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.”

Sacher v. United States²¹¹ grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trail judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one which the judge was authorized to determine for himself or whether it was one which under Rule 42(b) could only be passed upon by another judge and after notice and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, set aside others, and denied that due process required a hearing before a different judge. “We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power .... We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyers calling.”²¹²

In Offutt v. United States,²¹³ acting under its supervisory powers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self-restraint on the part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, founded on the Court’s supervisory powers, was constitutionalized in Mayberry v. Pennsylvania,²¹⁴ in which a defendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt by citing and convicting an offender, thus empowering the judge to keep the trial going,²¹⁵ but if he should wait until the conclusion of the trial he must defer to another judge.

Contempt by Disobedience of Orders.—Disobedience of injunctive orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers,²¹⁶ the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court’s jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Second, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional.²¹⁷ Third, on the basis of United States v. Shipp,²¹⁸ it was held that violations of a court’s order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court’s jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and punitive measures, which may be imposed in a single proceeding.²¹⁹

Contempt Power in Aid of Administrative Power.—Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of ICC v. Brimson,²²⁰ where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947 a proceeding to enforce a subpoena duces tecum issued by the Securities and Exchange Commission during the course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.²²¹ Notwithstanding the power of administrative agencies to cite an individual for contempt, however, such bodies must be acting within the authority that has been lawfully delegated to them.²²²

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Last modified: June 9, 2014