Rooted in English jurisprudence, codified in statute, and inherent in the authority of the court, the contempt power exhibits complexity consistent with its origins and may be invoked to enforce a remedy, punish the contemnor’s conduct, or both.
News reports1 of orders by Hennepin County District Court Judge Jay Quam finding former auto mogul Denny Hecker in contempt of court have brought this extraordinary remedy2 to the attention of the legal community and the public. At one of his many contempt review hearings, Denny Hecker’s lawyer explained to Judge Quam “As your Honor is aware, this has not been a good month for Mr. Hecker.”3
One may infer from these public proceedings the frustration Judge Quam has on behalf of the court in enforcing its orders—not to mention the frustration of Mr. Hecker’s former spouses seeking relief.
Though the public might reasonably be curious why Judge Quam does not simply order Mr. Hecker to jail for such judicially determined contemptuous actions, we in the legal community know that Judge Quam’s exercise of discretion is consistent with the purpose of contempt. It is critical for practitioners and judges to understand the varying purposes of contempt so its extraordinary use is properly implemented. This may best be accomplished by refreshing our knowledge of the history of this unique remedy.
History of Contempt
The use of contempt as a remedy traces to our legal Anglo-American jurisprudential roots. Two courts existed in England that have subsequently been joined in America. One court was that of the law, presided over by judges. The other court was that of equity, presided over by the chancellor.4
Court of Chancery. The court of equity, formally known as the Court of Chancery, was created to provide remedies in those situations in which the traditional court-of-law remedy—money—was not appropriate. Thus, the remedies available to the chancellor were quite expansive and often left to the creative discretion of the individual chancellor. Sir Thomas More, who presided as chancellor in England in the early 16th century and about whom a movie has been made,5 is perhaps the chancellor best known to us today.
Though the Court of Chancery could issue a variety of equitable remedies, a coercive remedy, or injunction, was perhaps the most common. A court of law might identify the rights and obligations of the parties in rem. But the court of equity, with jurisdiction in personam, could coerce a party to do or to refrain from doing a particular act. Because money or property was not part of this equitable remedy, contempt was the only effective method to enforce the coercive order.
It was common at this time to believe the king could do no wrong and the king appointed the judges. Therefore, the judges had inherent power to enforce the court’s orders through the contempt remedy.6 The English law courts might issue judgments of money and property. The courts of equity, on the other hand, might impose jail or fine individuals until they complied with the court’s order. It is this contempt practice which carries into American jurisprudence.
American Courts. The distinction between courts of law and equity slowly atrophied in the United States. Because most early American lawyers received their legal training in England, many of the distinctions between courts of law and equity initially remained. Perhaps the greatest contributor to the current-day blending of law and equity into one court was the adoption in the 20th century of the Rules of Civil Procedure, which specifically refer to one civil action.7
Despite this ultimate joining of law and equity into one court, the equitable use of the contempt remedy has been maintained. When the federal courts were established in 1789, contempt as a remedy was specifically authorized. Courts were given the authority to punish “all contempts of authority” by “fine or imprisonment.”8 Congress preserved, but limited, this contempt power in 1831 as follows: “A court of the United States shall have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other as (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; … (3) Disobedience or resistance to its lawful writ, process, order, rule decree, or command.”9
Now that courts of equity and law are combined, contempt is a remedy available to the parties and the court in both types of proceedings. Further, the United States Supreme Court has repeatedly confirmed the inherent authority of the court to “… enforce compliance with their lawful orders through civil contempt … .”10 Although the use of contempt is no longer limited to an equitable court order, it is typically applied prospectively to coerce compliance with an order with which a party has not complied.
The murky nature of this legal concept and its application nationwide has led to some controversy. For instance, a Wall Street Journal article in January of 2009 describing such controversy was titled: “No Charge: In Civil-Contempt Cases, Jail Time Can Stretch On for Years.” The concern of many, as those quoted in this article represent, is that many state laws seem to allow for endless periods of incarceration for contempt. Those interested in reform in those states support legislation similar to federal law which limits a contempt sentence to a period of up to 18 months for those who refuse to testify in federal court.11
Though contempt jurisprudence in Minnesota is not without murkiness, this state has addressed critics’ concerns of endless jail for contempt, as noted below. Despite these reforms, however, the following quote from the author of the Trial Handbook for Minnesota Lawyers speaks volumes: “This draconian power is ancient, and has been much criticized from ancient times to the present, but is very much alive and a constant peril to trial counsel.”12
Minnesota Courts. Minnesota has long recognized that contempt proceedings are available to individuals seeking enforcement of the court’s order. In 1889, the Minnesota Supreme Court affirmed the ability of a woman who was owed $48 in child support to seek an order of contempt from the court until such time as the contemnor, her former husband, paid such amount. Further, the supreme court recognized the dual purpose of the court employing contempt not only to coerce compliance with the order but to punitively impose jail for failure to do so.13
Notwithstanding the historical codification of contempt by the Minnesota Legislature, this contempt proceeding is seen as primarily grounded in the inherent authority of the court.14 In fact, the Minnesota Supreme Court, in a 1996 decision, clarified that if the court is exercising its summary, direct, contempt-of-court power, such authority is completely unrelated to the statutory contempt authority.15
However, the legislative mandate has also been seen by the supreme court as an appropriate regulation of the court’s contempt authority. The supreme court approves of this contempt regulation as long as “… the penalties provided are not so limited that the judiciary’s ability to preserve its own authority is threatened.”16
The Minnesota Supreme Court has even attempted to “simplify the law of contempt” by encouraging the use of the terms “remedial” and “punitive” in place of the traditional “civil” and “criminal” to distinguish the two types of contempt.17 That the Minnesota high court recognized a need for new contempt terminology is likely the best evidence that this area of jurisprudence remains nebulous. The section that follows seeks further “simplification” of the explanation of contempt, if not the concept itself.
Types of ContemptContempt is misconduct which tends to interrupt the business of the court or disobedience with a lawful court order.18 There are two types of contempt, punitive (criminal) and remedial (civil).19 Contempt is further distinguished between constructive contempt—that misconduct which occurs outside of the court’s presence—and direct contempt—misconduct which occurs within the immediate view and presence of the court.20 Though this latter distinction is arguably less critical, knowing of it will help the practitioner and judge appreciate the purpose of contempt.
Punitive (Criminal). The purpose of a punitive contempt proceeding is to punish the contemnor for past conduct, rather than to induce future compliance with a court order.21 The legislature has defined such conduct as “disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceedings.”22 Additionally, “… boisterous conduct, or violent disturbance, tending to interrupt the business of the court.” is considered conduct which warrants a punitive contempt proceeding.23
If this misconduct occurs in the presence of the court, it is direct punitive—or criminal—contempt.24 Therefore, for example, a witness who, having been granted immunity, refuses to testify in a court proceeding is guilty of direct punitive contempt of court.25 Further, the court may impose a summary sentence for the contempt and without affording the contemnor a right to speak, to counsel, or to a trial.26 However, the judge must be careful to ensure a complete record of the misconduct is made.
If the misconduct for which the court wishes to impose punishment occurred outside the presence of the court, the appropriate remedy is a proceeding in constructive contempt rather than direct contempt. Thus, for example, an attorney who is late for a court proceeding or a witness who committed perjury are not guilty of direct punitive contempt of court, though they may be guilty of constructive punitive contempt of court.27 The normal rules of procedure in a criminal proceeding apply to constructive punitive contempt of court.28
The maximum sentence for a criminal contempt of court is within misdemeanor limits: 90 days in jail and a $1,000 fine.29 However, in rare cases, the court may consider a six-month sentence for punitive contempt of court.30 In the latter situation the court must identify aggravating circumstances which warrant a sentence greater than the typical 90-day, misdemeanor-level sentence. A person who knowingly disobeys a subpoena lawfully issued in relation to a crime of violence may be given a felony-level sentence. The sentence may be consecutive to any other sentence which may be imposed.
The court must impose the sentence immediately following the contemptuous conduct to maintain the direct contempt status of the offense. If the contemptuous conduct occurred during the course of a trial, the judge may wait until the end of the trial.31 If the court does not act within these time lines, the contempt matter is converted to constructive punitive contempt and the contemnor has all the procedural rights typically afforded, including a right to counsel and a jury trial. It is for these procedural reasons that a judge will typically impose sentence for contempt immediately.
If the contempt occurs during a jury trial, the judge should take care immediately to remove the jury to avoid further negative effect. Because there is no requirement for a fact hearing in a direct contempt proceeding, the judge should then make a clear record of the conduct deemed contemptuous.
Remedial (Civil). The purpose of remedial—or civil—contempt of court is to require future compliance with a past court order.32 Therefore, no punitive retrospective purpose is to be served in a civil contempt proceeding.33 Put another way, remedial contempt is interested in addressing the rights of one party versus the obligations of the other party and in a forward-looking direction.
Among other definitions, the legislature has defined remedial contempt as “disobedience of any lawful judgment, order, or process of the court.”34 Therefore, it must be established that the proposed contemnor is aware of the order which is alleged to be violated.35
The Minnesota landmark contempt case of Hopp v. Hopp36 establishes a procedural checklist which must be followed prior to a finding of contempt. First, it must be established that the court has jurisdiction; second, the acts to be performed must be clearly defined and what constitutes failure to complete such acts must be clearly described; third, the contemnor must be given an opportunity at a hearing to show either compliance with the court order or reasons for failure to comply.37
The moving party must prove by clear and convincing evidence the contemnor’s violation of the order.38 However, the contemnor has the burden of proving an inability to comply with either the original order or the purge conditions of the contempt order.39
Once remedial contempt of court is found, the court must impose reasonable purge conditions which allow the contemnor the opportunity to comply with the order.40 Therefore, the court must typically impose a conditional contempt sentence to allow the contemnor an opportunity to comply with the court order. Accordingly, a second hearing must typically be held if the contemnor continues not to comply with the court order. At this second hearing the contemnor has the ability to show an inability to comply with the purge conditions. If the court chooses to execute the jail sanction, it must demonstrate why imposing jail is likely to lead to future compliance with the court order.41 This legal requirement is precisely why, in the Hecker case for example, multiple, second-stage contempt review hearings are held before the sanction of jail time for the contemnor is actually executed.
To summarize remedial contempt of court, the contemnor must, at all stages of the proceeding, have “the keys to the jail” in his or her pocket.42 Therefore, it is common for courts to order periodic review hearings to determine the contemnor’s compliance—or lack thereof—with the court’s contempt purge conditions.
The public may be well-founded in expressing curiosity about the repeated hearings in the Denny Hecker contempt case. However, as we in the legal community refresh our understanding of the purposes of contempt as a remedy, we can be assured that the discretion Judge Quam is showing during Denny Hecker’s “bad month” is, indeed, appropriate.
The author acknowledges with thanks the contributions of retired Judge Bruce Christopherson, who long taught the subject of contempt to new judges and inspired his interest in the topic, and of Elizabeth Randa (William Mitchell 2008), the author’s law clerk and former student, who provided valuable assistance in preparation of the manuscript.