Contempt of Court

Or the not so gentle art of Judicial Persuasion

Power of contempt
It is like Swiss army knife.

Useful in a number of situations

What is in a name? Indirect contempt Civil Contempt As for contempt Criminal Contempt Direct contempt

Two main ways to view Contempt

Categories
Criminal Civil

Procedure
Summary Plenary

Dont look to labels, look to relief sought. OBriant v. OBriant,

313 N.C. 432 (1985)

Categories of Contempt
Civil Contempt Purpose
Imposed for purpose of forcing Compliance 1

Criminal Contempt
In general, for purpose of punishment for failure to comply with court order or for interfering with judicial process 2

Categories of Contempt
Civil

Criminal
Show cause order and notice of when to appear Need not be based on affidavit

How do you initiate?

Show cause order or notice to appear based on affidavit, signed by judge or authorized official or Notice served by party If by notice to party, burden shifts to petitioner

Exception for summary proceeding for contempt directly disrupting court

Categories of Contempt
Civil Contempt
Who
Must be parties
5

Criminal Contempt
May be able to use Criminal Contempt against 3d party? 6
Atassi v. Atassi, 122 NC App 356 (1996)

Current status of noncompliance

Must be in noncompliance at time of hearing and entry of order finding in contempt

7

May be punished for prior acts which have been corrected, i.e. late payment 8

Jury Trial?

No right

No right

Categories of Contempt
Civil Criminal
Punishment if not
for child support or failure to comply with a court order to perform an act that does not require the payment of a monetary judgment
[emphasis added]

May Jail until comply Limitation of 12 months in 90 day increments unless child support GS 5A21

Normally 30 days and/or $500

Exceptions

Exceptions: Violation of GS 5A-11(8) (Willful

refusal to testify or produce under grant of immunity) 6 months or fine of $500

or Article 14 of G.S. 15A (fails to comply with a nontestimonial identification order) 90 days

Categories of Contempt
Punishment

Civil
Indefinite until purged
Must give a way to purge - keys to jail 5 days notice unless good cause shown

Criminal
30 days and/or $500 fine

(child support or other monetary conditions)

Purge

Can sentence for active term without conditions but may release early in discretion of court 5 days notice unless good cause shown

Notice

Right to counsel

Yes, including court appointed for indigent except no right to court appointed in summary proceeding

Categories of Contempt
Civil Contempt
Ability to comply
Present ability to comply with all or part of order required 3

Criminal
Failed to comply with order now or in past and at time of failure had ability to comply at least in part 4

Concurrent citations

Cant hold in both Civil and Criminal Contempt for same act

Civil
Securing appearancebail? No provision for pretrial detention or requiring bail on Civil Contempt Generally private attorney

Criminal
May require to post bond per GS 15A-305

Who prosecutes?

Generally private attorney but may appoint a prosecutor

Appeal from District Courtto which court?

Court of Appeals

Superior Court

Attorney fees for Petitioner?

Burden of proof

Only if allowed by statute or contract On petitioner to show basis in affidavit then shifts to respondent Beyond a reasonable doubt - burden on petitioner

But
Must make findings contained in G.S. 5A21(a)

What happens during appeal

Civil
In general, court has no jurisdiction to hold party in contempt for an order that has been appealed. GS 1-294, 1289. However, an order for child support [GS 50-13 .4(f)(9)], child custody - [GS 50-13.3], and the payment of periodic alimony [GS 50-16.7(j)], is enforceable by civil contempt during the pendency of the appeal.

Criminal
Criminal contempt not available during appeal

Sometimes the directions are not as clear as they were intended.

Required findings in Civil Contempt G.S. 5A-21(a)

(1) The order remains in force; (2) The purpose of the order may still be served by compliance with the order; (2a) The noncompliance by the person to whom the order is directed is willful; and (3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.

Statutory Requirements of Criminal Contempt GS 5A-11

In general it is the disobedience of, resistance to, or interference with a courts lawful process, order, directive or instruction or its execution.
The specific acts of contempt are listed in GS 5A-11
They are

Willful behavior 1) committed during the sitting of a court and directly tending to interrupt its proceedings. (2) committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority. (3) in disobedience of, resistance to, or interference with a court's lawful process, order, directive, or instruction or its execution. (4) by refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when the refusal is not legally justified. (5) by publication of a report of the proceedings in a court that is grossly inaccurate and presents a clear and present danger of imminent and serious threat to the administration of justice, made with knowledge that it was false or with reckless disregard of whether it was false. No person, however, may be punished for publishing a truthful report of proceedings in a court.

(6) or grossly negligent failure by an officer of the court to perform his duties in an official transaction.
(7) or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court.

(8) by refusal to testify or produce other information upon the order of a judge acting pursuant to Article 61 of Chapter 15A, Granting of Immunity to Witnesses.
(9) in communication with a juror in an improper attempt to influence his deliberations.

(9a) by refusal by a defendant to comply with a condition of probation.

(10) Any other act or omission specified elsewhere in the General Statutes of North Carolina as grounds for criminal contempt.

Statutory Criminal Contempt (GS 5A-11(b)) No person may be held in contempt under this section on the basis of the content of any broadcast, publication, or other communication unless it presents a clear and present danger of an imminent and serious threat to the administration of criminal justice.

Summary vs. Plenary Hearing

When can you act in a summary fashion and when must you provide for a plenary hearing with notice?

Requirements for Summary Proceedings

Must be direct [criminal] contempt of courtGS 5A-13

Direct Criminal Contempt of Court

A) Committed during the sitting of a court and directly tending to interrupt its proceedings. B) In immediate view and presence and tending to impair respect due its authority C) Disobedience of, resistance to, or interference with a courts lawful process, order, directive or instruction or its execution.

Guidelines for Summary Direct Summary Contempt

Within sight or hearing of presiding Judge and Within room or immediately proximate to room where proceedings are being held before court and
Likely to interrupt or interfere with matters before the court Must be Imposed substantially contemporaneously

Summary Procedure
Not required to appoint attorney if held summarily Respondent must be informed of allegations Respondent must be allowed to respond to allegations

What do you do if ??
A person in court becomes disruptive What if it is in the hall outside the courtroom? How about if someone assaults someone at the door to the courthouse? What if the assault happens in the parking lot?

Summary Proceedings
Lesson one-Think before you do it. Lesson two-If you spend too much time thinking you may not be able to proceed in a summary fashion.

Dont let yourself be controlled.

If you feel like you are about to lose it, set the defendant aside and deal with any issues later. Not a bad policy even if you are not upset.

Plenary Hearings
A Judge or other judicial official issues notice of hearing or by notice
Respondent must receive copy of order Order must be specific as to conduct which is alleged to be the basis of the order Judge is trier of fact Judge must make finding of facts and conclusions of law In criminal contempt, may secure appearance with bond or other 15A-305 process (not in Civil cases)

Interesting cases
McKillop v. Onslow County, 139 NCApp 53, Reaffirms that in a civil case the trier of fact may use the fact that a witness invoked their Fifth Amendment rights against them. Plaintiff must choose between her right not to incriminate herself in a pending criminal trial and her claim that she cannot be held in civil contempt

STATE V. GILLEY (Ct. App. 1999) 1999 N.C. App. Lexis 1177 Court held that finding and punishment for contempt may be double jeopardy as to a charge of assault in a criminal proceeding

Sometimes the requirements of the law are unreasonable

JP the legal cartoon, by David Carter. Displayed with consent of author.

The Practical

or How do we handle those pesky non-compliers.

Who are these people before you.

Get out of the habit of calling the parties the plaintiff and the defendant. In fact it is not all that unusual to have pending contempt motions against each of the parties. It is a lot easier if you refer to the parties as the petitioner and the respondent. Think about this too when you are hearing a ED case.

Domestic Relation Cases

Most of the contempt matters which will come before you are Domestic Relations cases. In many of the cases issues which are not directly related to the case of contempt are the fuel of the fire you are fighting. Lets talk about some of these cases and how you might approach them.

Your honor, he wouldnt let me see the kids.

My practice is to make clear as soon as this complaint is made, that the sole issue before the court is the payment or non-payment of support and whether the respondent had the ability to comply.

Pro Se Parties
In Child Support cases IVD or Clerk will cite for violation IVD will help with establishment We recruit attorneys to appear in Clerk support cases for one day appearances with fees ordered of respondents found in violation Respondents have right to court appointed attorney if indigent In non-support cases-you may suggest adapting the Show Cause Order from the AOC forms

Do you say anything?

You may consider making a brief statement to the parties that each is under an obligation to comply with court orders and if no order is in place that each party remains the parent of the children. But dont get into a lengthy discussion. Tell them what you want to say and go on to the next case.

Sometimes you may have problems with Attorneys

What do you do with an attorney

Remember, first, the problems of maintaining a practice, but You must be hard hearted on occasions One of the main complaints of the public is what appears to the public to be deference to lawyers at the expense of the public You can avert many of these feelings by making sure that attorneys met deadlines and by keeping the non-attorneys informed

I lost my Job.
Contempt may include failure to take reasonable efforts to avoid non-compliance. Sell some or you property Must identify what assets the defendant has. Value of assets Get rid of secured property to increase available cash Fulfill specific requirements of a job search Make list of 3 places have gone each day in search of job with listing of name of person contacted, address and phone number Fulfill educational program to enhance employability

Many of the people we deal with are less than pleasant.

If I go to jail Ill lose the new job Ive got lined up for tomorrow morning. Remember that a large percentage of the new jobs never happen
Maybe get confirmation from the boss Check back in file and see if this same job has been used as an excuse before
If you do accept as real, put employer information in order so you can review later How about weekends/nights in jail if in criminal contempt

How about setting contingent appearances if in doubt

Defendant is given two appearance dates
Clerk or IV-D agent may excuse to second date if in compliance If respondent does not comply with certain conditions, he is to reappear on first date

I cant make the children go with him.

Be careful in holding a respondent in contempt for not compelling visits
Hancock v. Hancock, 122 N.C. App 518 (1996)
(holding that physically forcing visitation against the wishes of a child should only be done under compelling circumstance

Anderson v. Lackey, 2004 N.C. App. 1617 (2004)(unpublished)

(found given past history, mother had failed to comply with visitation schedule willfully)

All this is to say that if you need use the power of contempt at times in visitation, be sure to state in your order the compelling reasons

Our work affects families

It is not always rewarding but remember, often our efforts mean a great many people who are not in court and whom we will never meet.

"A judge is a law student who marks his own test papers."
H.L. Mencken