THE INS AND OUTS OF CONTEMPT
September 26, 2012 § 7 Comments
Last week’s Corr v. State decision from the MSSC is a reminder that there are some intricacies to contempt that we should all be aware of as we go about our business in chancery court.
Contempt can be either civil, or criminal, or a combination of both.
- Civil contempt is for the benefit of the complaining party, and its purpose is remedial. An example is where the respondent owes child support and is jailed until he can come up with what he owes. The remedy is coercive and is intended to produce compliance. The burden of proof is by a preponderance of evidence.
- Criminal contempt is intended to vindicate the authority of the court. The sentence is punitive.
- The two types of contempt may be used in combination, as where the court orders the respondent jailed until he pays the amount due, and the court sentences him to thirty days as a punishment for non-compliance.
Civil contempt may be tried on seven days’ notice by Rule 81 summons.
Criminal contempt under Mississippi law may be either direct or indirect. The distinction determines what kind of due process notice is required.
- Direct criminal contempt involves words or actions in the presence of the court that are an affront to the authority or dignity of the court. Conduct such as insulting language or behavior, resistance to the court’s authority, disruption of the proceedings and the like may be treated as direct contempt. The court may act instantly to punish the contemnor because no evidence other than the judge’s own perception is necessary to sustain sanctions. In the alternative, the court may wait until later in the proceedings, at a break or at the end of a hearing, to address the misconduct.
- Indirect, or constructive, criminal contempt is contemptuous conduct that takes place outside the presence of the court which resists the court’s authority and tends to obstruct, interrupt or embarrass the administration of justice.
Direct contempt may be dealt with immediately, summarily, and without further notice to the contemnor. Some authorities suggest that, if the court delays action, the judge should recuse herself if the contempt is based on personal attacks.
In cases of indirect, or constructive, criminal contempt, the defendant: (1) is presumed innocent until proven guilty beyond a reasonable doubt; (2) is entitled to resonable notice of the nature and cause of the accusation; (3) has a right to be heard; (4) has a right to retain counsel; (5) has the right to call and cross-examine witnesses; (6) has the right to an unbiased judge; (7) has the right to a jury trial; and (8) has the right against self-incrimination. Dennis v. Dennis, 824 So.2d 604, 609 (Miss. 2002). If the judge, as in Corr, is substantially involved in the prosecution, as where he is instrumental in initiating the proceeding, or where he acts as prosecutor and judge, he should recuse himself and have the actual contempt hearing conducted by another judge.
When you draft contempt pleadings, give some thought to what it is you are trying to accomplish. If all you are trying to do is to get the ex-husband to pay his child support, civil contempt may do the job for you. It only requires a preponderance of evidence, as opposed to the heavier burden for criminal contempt. If you insist on criminal contempt, look carefully at Dennis and its requirements. Do you really want to strap them on? Are they really in your client’s best interest? When you insist on criminal contempt, you are affording the defendant Fifth Amendment self-incrimination protection, the higher burden of proof, and even right to a jury trial (this applies in cases where the aggregation of penalties would result in a sentence that would require Sixth Amendment protection. McGowan v. State, 258 So.2d 810, 802 (Miss. 1972); Purvis v. Purvis, 657 So.2d 794, 798 (Miss. 1995); Walls v. Spell, 722 so.2d 566, 574 (Miss. 1998)).
If you simply can not resist the urge to rattle the incarceration saber, be sure to acquaint yourself with the US Supreme Court decision in Turner v. Rogers.