BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 7 - Miscellaneous Proceedings

    7.02 Contempt--Civil (FRCP 42; 18 USC 401)

        7.02.1 Contempt--Civil: Background
        7.02.2 Contempt--Civil: Controlling Statute And Rule
        7.02.3 Contempt--Civil: Civil Contempt Procedure
        7.02.4 Contempt--Civil: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Note: If you are dealing with a recalcitrant witness, see supra section 5.04: Handling the recalcitrant witness.

The purpose, procedure, and penalty for civil contempt differ from those for criminal contempt. It is essential that the trial judge make clear on the record whether the proceeding is for civil or criminal contempt.

The purpose of criminal contempt is to punish a person for a past act of contempt. Criminal contempt has the characteristics of a crime, and the contemnor is cloaked with the safeguards of one accused of a crime. The primary purpose of civil contempt is to compel someone to do or not do a certain act.

Case law makes clear that the contempt power is one to be exercised with the greatest restraint and that, in exercising that power, a court should exert only the power needed to achieve the desired end.

Civil contempt serves one or both of the following purposes:

1. to coerce the contemnor into complying in the future with a court order; or

2. to compensate the complainant for damages resulting from the contemnor’s past noncompliance.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The only statute applying directly to civil contempt is 28 USC 1826(a), which applies only to recalcitrant witnesses (see supra section 5.04: Handling the recalcitrant witness). However, 18 USC 401(3) does have some application to civil contempt, as follows:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

. . . .

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

There is no civil rule comparable to FRCP 42. In a civil contempt proceeding, you should follow the procedure outlined in FRCP 42(a) to the extent that it applies, as follows:

(a) Disposition After Notice. Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice. The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the attempt.

(3) Trial and Disposition. A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The contempt will normally come before you on the petition of a civil litigant seeking the imposition of sanctions by reason of another party’s failure to comply with a court order.

When one party petitions to have another found in civil contempt, you should proceed as follows:

1. Set down a time and place for a hearing on the petition. The respondent must be accorded a reasonable period in which to engage an attorney and prepare a defense.

2. Because a person found in civil contempt may be imprisoned, the respondent has a right to counsel. If the respondent desires an attorney but cannot afford one, you must appoint counsel for him or her unless waived (see supra section 1.02: Assignment of counsel or pro se representation).

3. The respondent in a civil contempt proceeding has no right to a jury trial, because the respondent, if imprisoned, can secure immediate release by complying with the court’s order.

4. The hearing is to be by way of the live testimony of witnesses, not by way of affidavit. Note that the Federal Rules of Evidence apply to contempt proceedings. See FRE 1101(b).

5. The respondent is to be found in civil contempt only if his or her contempt is established by clear and convincing evidence. In contrast with the procedure for criminal contempt, the respondent’s guilt need not be proved beyond a reasonable doubt.

6. If the respondent is found guilty of civil contempt, you have wide discretion in fashioning a remedy.

(a) You may imprison the contemnor until he or she purges himself or herself of contempt by complying with the court’s order, you may impose a prospective conditional fine (such as a certain monetary amount per day) until the contemnor complies with the court’s order, or you may both incarcerate the contemnor and impose a conditional fine. (There is no statutory ceiling on a conditional fine. You must, however, weigh the financial circumstances of the contemnor in fixing a conditional fine.)

(b) You may in addition impose a fine on the contemnor to be paid to the aggrieved party, to reimburse the party for damages suffered because of the contemnor’s conduct. This fine may not, however, exceed the actual damages suffered by the aggrieved party. It may, under certain circumstances, include an award to the aggrieved party of the attorney’s fees and costs in bringing the contempt proceeding.

7. If you incarcerate the contemnor or impose a conditional fine, advise the contemnor that he or she may purge himself or herself of contempt by complying with the court’s order and that, upon complying, the contemnor will be released from jail and his or her fine, if one was imposed, will stop accumulating.

8. Prepare, sign, and file an Order in Civil Contempt, setting forth your findings of fact, your conclusions of law, and the precise sanctions you have imposed.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Donald S. Voorhees, Manual on Recurring Problems in Criminal Trials 51–56 (5th ed. 2001)