Contempt

Sanctions of the Investigatory Power: Contempt

Explicit judicial recognition of the right of either house of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain v. Daugherty.1 But the principle there applied had its roots in an early case, Anderson v. Dunn,2 which stated in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority.3 The right to punish a contumacious witness was conceded in Marshall v. Gordon,4 although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House.

More about Contempt

The cases emphasize that the power to punish for contempt rests upon the right of self-preservation. That is, in the words of Chief Justice White, “the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed” necessitates the contempt power.5 Thus, in Jurney v. Mac- Cracken,6 the Court turned aside an argument that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena. The punishment would not be efficacious in obtaining the papers in this particular case, but the power to punish for a past contempt is an appropriate means of vindicating “the established and essential privilege of requiring the production of evidence.” 7

Under the rule laid down by Anderson v. Dunn,8 imprisonment by one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it. Because of this limitation and because contempt trials before the bar of the House charging were time-consuming, in 1857 Congress enacted a statute providing for criminal process in the federal courts with prescribed penalties for contempt of Congress.9

Contempt: Developments

The Supreme Court has held that the purpose of this statute is merely supplementary of the power retained by Congress, and all constitutional objections to it were overruled. “We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but because Congress, by the Act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved.” 10

Other Aspects

Because Congress has invoked the aid of the federal judicial system in protecting itself against contumacious conduct, the consequence, the Court has asserted numerous times, is that the duty has been conferred upon the federal courts to accord a person prosecuted for his statutory offense every safeguard that the law accords in all other federal criminal cases,11 and the discussion in previous sections of many reversals of contempt convictions bears witness to the assertion in practice. What constitutional protections ordinarily necessitated by due process requirements, such as notice, right to counsel, confrontation, and the like, prevail in a contempt trial before the bar of one House or the other is an open question. 12

Other Issues

It has long been settled that the courts may not intervene directly to restrain the carrying out of an investigation or the manner of an investigation, and that a witness who believes the inquiry to be illegal or otherwise invalid in order to raise the issue must place himself in contempt and raise his beliefs as affirmative defenses on his criminal prosecution. This understanding was sharply reinforced when the Court held that the speech-or-debate clause utterly foreclosed judicial interference with the conduct of a congressional investigation, through review of the propriety of subpoenas or otherwise.13 It is only with regard to the trial of contempts that the courts may review the carrying out of congressional investigations and may impose constitutional and other constraints.

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References

This text about Contempt is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] 273 U.S. 135 (1927).

[Footnote 2] 19 U.S. (6 Wheat.) 204 (1821).

[Footnote 3] The contempt consisted of an alleged attempt to bribe a Member of the House for his assistance in passing a claims bill. The case was a civil suit brought by Anderson against the Sergeant at Arms of the House for assault and battery and false imprisonment. Cf. Kilbourn v. Thompson, 103 U.S. 168 (1881). The power of a legislative body to punish for contempt one who disrupts legislative business was reaffirmed in Groppi v. Leslie, 404 U.S. 496 (1972), but a unanimous Court there held that due process required a legislative body to give a contemnor notice and an opportunity to be heard prior to conviction and sentencing. Although this case dealt with a state legislature, there is no question it would apply to Congress as well.

[Footnote 4] 243 U.S. 521 (1917).

[Footnote 5] 243 U.S. at 542.

[Footnote 6] 294 U.S. 125 (1935).

[Footnote 7] 294 U.S. at 150.

[Footnote 8] 19 U.S. (6 Wheat.) 204 (1821).

[Footnote 9] Act of January 24, 1857, 11 Stat. 155. With minor modification, this statute is now 2 U.S.C. § 192.

[Footnote 10] In re Chapman, 166 U.S. 661, 671-672 (1897).

[Footnote 11] Sinclair v. United States, 279 U.S. 263, 296-297 (1929); Watkins v. United States, 354 U.S. 178, 207 (1957); Sacher v. United States, 356 U.S. 576, 577 (1958); Flaxer v. United States, 358 U.S. 147, 151 (1958); Deutch v. United States, 367 U.S. 456, 471 (1961); Russell v. United States, 369 U.S. 749, 755 (1962). Protesting the Court’s reversal of several contempt convictions over a period of years, Justice Clark was moved to suggest that “[t]his continued frustration of the Congress in the use of the judicial process to punish those who are contemptuous of its committees indicates to me that the time may have come for Congress to revert to ‘its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House [affected].’ ” Id. at 781; Watkins, 354 U.S. at 225.

[Footnote 12] Cf. Groppi v. Leslie, 404 U.S. 496 (1972).

[Footnote 13] Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).

Tables of Contents

• Contempt and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Contempt and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)

Categories of Contempt

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,14 the Court has consistently distinguished between criminal and civil contempt, the former being a vindication of the authority of the courts and latter being the preservation and enforcement of the rights of the parties. 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.15

Contempt and the U.S. Constitution

The issue of whether a certain contempt is civil or criminal can be of great importance. For instance, criminal contempt, unlike civil contempt, implicates procedural rights attendant to prosecutions. 16 Or, in Ex parte Grossman,17 while holding that the President may pardon a criminal contempt, Chief Justice Taft noted in dicta that such pardon power did not extend to 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.18

Contempt: Developments

Long-standing doctrine regarding how courts should distinguish between civil and criminal contempt remains influential. In Shillitani v. United States,19 defendants were sentenced by their respective District Courts to two years imprisonment for contempt of court, but the sentences contained a purge clause providing for the unconditional release of the contemnors upon agreeing to testify before a grand jury. On 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.20 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 deterence.” 21

More about Contempt

In International Union, UMW v. Bagwell,22 however, the Court formulated a new test for drawing the distinction between civil and criminal contempt in certain cases. 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. 23

Other Aspects

The Court has also recognized a second, but more subtle distinction between types of contempt, and that is the difference between direct and indirect contempt. 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,” 24 while indirect contempt is behavior that the Court did not itself witness.25 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 seen 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 multiplying of the due process requirements that must otherwise be met when finding an individual to be in contempt.26

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References

This text about Contempt is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 14] E.g., United States v. United Mine Workers, 330 U.S. 258 (1947).

[Footnote 15] Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324, 327-328 (1904).

[Footnote 16] In Robertson v. United States ex rel. Watson, the Court had granted certiorari to consider a District of Columbia law that allowed a private individual to bring a criminal contempt action in the congressionally established D.C. courts based on a violation of a civil protective order. 560 U.S. ___, No. 08-6261, slip op. (2010). The Court subsequently issued a per curiam order dismissing the writ of certiorari as having been improvidently granted, but four Justices dissented. Writing in dissent, Chief Justice Roberts thought it imperative to make clear that “[t]he terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought of behalf of the government.” 560 U.S. ___, No. 08-6261, slip op. at 1 (2010) (Roberts, C.J., dissenting). Of particular concern was how various protections in the Bill of Rights against government action would play out in a privately brought action. Id. at 5-6.

[Footnote 17] 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, Michaelson 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).

[Footnote 18] See United States v. United Mine Workers, 330 U.S. 258, 299 (1947).

[Footnote 19] 384 U.S. 364 (1966).

[Footnote 20] 384 U.S. at 370.

[Footnote 21] 384 U.S. at 370 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).

[Footnote 22] 512 U.S. 821 (1994).

[Footnote 23] 512 U.S. 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 fact-finding. See esp. id. at 837-38.

[Footnote 24] Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488. Cf. Rule 42(a), FRCrP, which provides, “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).

[Footnote 25] See Fox, The Nature of Contempt of Court, 37 L.Q. REV. 191 (1921).

[Footnote 26] 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 on 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.

Sanctions Other Than Contempt

Long recognized by the courts as inherent powers are those authorities that are necessary to the administration of the judicial system itself, of which the contempt power just discussed is only the most controversial.27 Courts, as elements of an independent and coequal branch of government, once they are created and their jurisdiction established, have the authority to do what courts have traditionally done in order to accomplish their assigned tasks.28 Of course, these inherent powers may be limited by statutes and by rules,29 but, just as noted above in the discussion of the same issue with respect to contempt, the Court asserts both the power to act in areas not covered by statutes and rules and the power to act unless Congress has not only provided regulation of the exercise of the power, but also has unmistakably enunciated its intention to limit the courts’ inherent powers.30

Contempt and the U.S. Constitution

Thus, in Chambers v. NASCO, Inc., the Court upheld the imposition of monetary sanctions against a litigant and his attorney for bad-faith litigation conduct in a diversity case. Some of the conduct was covered by a federal statute and several sanction provisions of the Federal Rules of Civil Procedure, but some was not, and the Court held that, absent a showing that Congress had intended to limit the courts, they could use their inherent powers to impose sanctions for the entire course of conduct, including shifting attorneys’ fees, which is ordinarily against the common-law American rule.31 In another case, a party failed to comply with discovery orders and a court order concerning a schedule for filing briefs. The Supreme Court held that the attorneys’ fees statute did not allow assessment of such fees in that situation, but it remanded for consideration of sanctions under both a Federal Rule of Civil Procedure and the trial court’s inherent powers, subject to a finding of bad faith.32 But bad faith is not always required for the exercise of some inherent powers. Thus, courts may dismiss an action for an unexplained failure of the moving party to prosecute it.33

Contempt: Developments

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References

This text about Contempt is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 27] “Certain implied powers must necessarily result to our courts of justice, from the nature of their institution…. To fine for contempt, imprison for contumacy, enforce the observance of order, &c., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others: and so far our courts, no doubt, possess powers not immediately derived from statute…. ” United States v. Hudson & Goodwin, 11 U.S. (7 Cr.) 32, 34 (1812).

[Footnote 28] See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227 (1821); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 (1874); Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962); Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991); and id. at 58 (Justice Scalia dissenting), 60, 62-67 (Justice Kennedy dissenting).

[Footnote 29] Chambers v. NASCO, Inc., 501 U.S. at 47.

[Footnote 30] 501 U.S. at 46-51. But see id. at 62-67 (Justice Kennedy dissenting).

[Footnote 31] 501 U.S. at 49-51. On the implications of the fact that this was a diversity case, see id. at 51-55.

[Footnote 32] Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).

[Footnote 33] Link v. Wabash R.R., 370 U.S. 626 (1962).