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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,153 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.154 In the case of Shillitani v. United States,155 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.

Supplement: [P. 623, add to text following n.154:]

In International Union, UMW v. Bagwell,5 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.6 Much prior doctrine remains, however, as in the distinction between remedial sanctions, which are civil, and punitive, which are criminal, and between in–court and out–of–court contempts.


Upon 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.156 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 deterrence.”157 The issue of whether a certain contempt is either civil or criminal can be of great importance as demonstrated in the dictum of Ex parte Grossman,158 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.159

A second but more subtle distinction, with regard to the categories of contempt, is the difference between direct and indirect contempt—albeit 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;”160 indirect contempt is behavior which the Court did not itself witness.161 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 multiply[p.625]ing of the due process requirements that must otherwise be met when finding an individual to be in contempt.162

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.163 By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.164 In the United States, the Judiciary Act of 1789 in section 17165 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 misbehavior 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.166

An Inherent Power.—The validity of the act of 1831 was sustained forty–three years later in Ex parte Robinson,167 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 enforce[p.626]ment 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.”168 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.169 In Michaelson v. United States,170 the Court intentionally placed a narrow interpretation upon those sections of the Clayton Act171 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.172 This latter power, to enforce, the Court has held, includes the authority to appoint private counsel to prosecute a criminal contempt.173


While the contempt power may be inherent, it is not unlimited. In Spallone v. United States,174 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.


153 E.g., United States v. United Mine Workers, 330 U.S. 258 (1947).
154 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441–443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bassette v. W. B. Conkey Co., 194 U.S. 324, 327–328 (1904).
155 384 U.S. 364 (1966).
156 Id., 370.
157 Id., n. 6. See Hicks v. Feiock, 485 U.S. 624 (1988) (remanding for determination whether payment of child support arrearages would purge a determinate sentence, the proper characterization critical to decision on a due process claim).
158 267 U.S. 87, 119–120 (1925). In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties, Michalson v. United States ex rel. Chicago, S.P., M. & Ry. Co., 266 U.S. 42, 65–66 (1924). But see Bloom v. Illinois, 391 U.S. 194, 202 (1968).
159 See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).
160 Act of March 2, 1831, ch. 99, Sec. 1, 4 Stat. 488 . Cf. Rule 42(a), FRCrP, which provides that “[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” See also Beale, Contempt of Court, Civil and Criminal, 21 Harv. L. Rev. 161, 171–172 (1908).
161 See Fox, The Nature of Contempt of Court, 37Q. Rev.191 (1921).
162 Many of the limitations placed on the inferior federal courts have been issued on the basis of the Supreme Court’s supervisory power over them rather than upon a constitutional foundation, while, of course, the limitations imposed on state courts necessarily are of constitutional dimensions. Indeed, it is often the case that a limitation, which is applied to an inferior federal court as a superintending measure, is then transformed into a constitutional limitation and applied to state courts. Compare Cheff v. Schnackenberg, 384 U.S. 373 (1966), with Bloom v. Illinois, 391 U.S. 194 (1968). In the latter stage, the limitations then bind both federal and state courts alike. Therefore, in this section, Supreme Court constitutional limitations on state court contempt powers are cited without restriction for equal application to federal courts.
163 Fox, The King v. Almon, 24 L.Q. Rev. 184, 194–195 (1908).
164 Fox, The Summary Power to Punish Contempt, 25Q. Rev.238,252 (1909).
165 1 Stat. 83 (1789).
166 18 U.S.C. Sec. 401 . For a summary of the Peck impeachment and the background of the act of 1831, see Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in “Inferior” Federal Courts—A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1024– 1028 (1924).
167 19 Wall. (86 U.S.) 505 (1874).
168 Id., 505–511.
169 Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 158 U.S. 564, 595 (1895).
170 266 U.S. 42 (1924).
171 38 Stat. 730, 738 (1914).
172 266 U.S., 65–66. See, generally, Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in “Inferior” Federal Courts—A Study in Separation of Powers, 37 L. Rev.1010 (1924).
173 Young v. United States ex rel. Vuitton, 481 U.S. 787, 793– 801 (1987). However, the Court, invoking its supervisory power, instructed the lower federal courts first to request the United States Attorney to prosecute a criminal contempt and only if refused should they appoint a private lawyer. Id., 801–802. Still using its supervisory power, the Court held that the district court had erred in appointing counsel for a party that was the beneficiary of the court order; disinterested counsel had to be appointed. Id., 802–808. Justice Scalia contended that the power to prosecute is not comprehended within Article III judicial power and that federal judges had no power, inherent or otherwise, to initiate a prosecution for contempt or to appoint counsel to pursue it. Id., 815. See also United States v. Providence Journal Co., 485 U.S. 693 (1988), which involved the appointment of a disinterested private attorney. The Supreme Court dismissed the writ of certiorari after granting it, however, holding that only the Solicitor General representing the United States could bring the petition to the Court. See 28 U.S.C. Sec. 518 .
174 493 U.S. 265 (1990). The decision was an exercise of the Court’s supervisory power. Id., 276. Four Justices dissented. Id., 281.

Supplement Footnotes

5 512 U.S. 821 (1994) .
6 Id. at 832–38. Relevant is the fact that the alleged contempts did not occur in the presence of the court and that determinations of violations require elaborate and reliable factfinding. See esp. id. at 837–38.
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