200502 Contemp Neely

7/30/2019 200502 Contemp Neely

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Contempt of Court

Or the not so gentle art of

Judicial Persuasion


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Power of contempt

It is like Swissarmy knife.

Useful in a number of situations


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What is in a name?

Indirect contempt

Civil Contempt

As for contempt

Criminal Contempt

Direct contempt


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Two main ways to view

Contempt Categories Procedure

Criminal

Civil

Summary

Plenary


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Dont look to labels, look

to relief sought.OBriant v. OBriant,313 N.C. 432 (1985)


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Categories of Contempt

Civil Contempt Criminal Contempt

Purpose Imposed forpurpose of forcingCompliance 1

In general, for purposeof punishment forfailure to comply withcourt order or forinterfering with

judicial process 2


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How do youinitiate?

Show cause order ornotice to appear

based on affidavit,signed by judge or

authorized officialor

Notice served byparty

If by notice toparty,

burden shifts topetitioner

Show cause order andnotice of when to

appear

Need not be based onaffidavit

Civil Criminal

Exception forsummary proceeding

for contempt directlydisrupting court


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Categories of ContemptCivil Contempt Criminal Contempt

Who Must be parties 5 May be able to useCriminal Contemptagainst 3d party? 6Atassi v. Atassi, 122 NC App

356 (1996)

Current statusof non-

compliance

Must be in non-compliance at timeof hearing andentry of orderfinding in contempt7

May be punished for prioracts which have beencorrected, i.e. late

payment 8

Jury Trial? No rightNo right


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Categories of ContemptCivil Criminal

Punishmentif not

for child supportor failure to complywith a court order toperform an act thatdoes not require the

payment of amonetaryjudgment

[emphasis added]

May Jail untilcomply

Limitation of 12months in 90 dayincrements unlesschild support GS 5A-21

Normally 30 daysand/or $500

ExceptionsExceptions: Violation of GS 5A-11(8) (Willfulrefusal to testify or produce under grant ofimmunity) 6 months or fine of $500

or

Article 14 of G.S. 15A (fails to comply with anontestimonial identification order)

90 days


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Categories of ContemptCivil Criminal

Punishment(child support orother monetaryconditions)

Indefinite untilpurged

30 days and/or$500 fine

Purge Must give a wayto purge - keysto jail

Can sentence for activeterm without conditionsbut may release early indiscretion of court

Notice5 days noticeunless goodcause shown

5 days noticeunless goodcause shown

Right to

counsel

Yes, including court appointed for indigentexcept no right to court appointed in

summary proceeding


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Ability tocomply

Present ability tocomply with all or part

of order required3

Failed to comply withorder now or in past

and at time of failure

had ability to complyat least in part 4

Civil Contempt Criminal

Concurrent

citations

Cant hold in both Civil and Criminal

Contempt for same act


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Securingappearance-bail?

No provision forpretrialdetention or

requiring bail onCivil Contempt

May require topost bond per GS15A-305

Whoprosecutes?

Generallyprivateattorney

Generally privateattorney but may appointa prosecutor

Appeal fromDistrict Court-to which court?

Court ofAppeals

Superior Court

Civil Criminal


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Attorney feesfor Petitioner?

Only if allowed by statuteor contract

Burden of proof On petitioner toshow basis inaffidavit thenshifts torespondent

Beyond areasonable doubt- burden onpetitioner

ButMust make findings

contained in G.S. 5A-

21(a)


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What happens during appeal

In general, court has nojurisdiction to hold party incontempt for an order that hasbeen appealed. GS 1-294, 1-289.

Criminal contempt notavailable during appeal

Civil Criminal

However, an order forchild support [GS 50-13 .4(f)(9)],

child custody - [GS 50-13.3],

and the

payment of periodic alimony [GS50-16.7(j)],

is enforceable by civil contemptduring the pendency of the

appeal.


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Sometimes the directions are not as clear asthey were intended.


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Required findings in CivilContempt G.S. 5A-21(a)

(1) The order remains in force;(2) The purpose of the order may still be served by

compliance with the order;

(2a) The noncompliance by the person to whom the order

is directed is willful; and

(3) The person to whom the order is directed is able to

comply with the order or is able to take reasonable

measures that would enable the person to comply with

the order.


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Statutory Requirements of CriminalContempt GS 5A-11

In general it is the disobedience of,resistance to, or interference with a courts

lawful process, order, directive or instructionor its execution.

The specific acts ofcontempt are listed in GS

5A-11

They are


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1) committed during the sitting of a court and directly tending to

interrupt its proceedings.(2) committed during the sitting of a court in its immediate viewand presence and directly tending to impair the respect due its

authority.

(3) in disobedience of, resistance to, or interference with a court'slawful process, order, directive, or instruction or its execution.

(4) by refusal to be sworn or affirmed as a witness, or, when sosworn or affirmed, willful refusal to answer any legal and proper

question when the refusal is not legally justified.

(5) by publication of a report of the proceedings in a court that isgrossly inaccurate and presents a clear and present danger of

imminent and serious threat to the administration of justice, madewith knowledge that it was false or with reckless disregard ofwhether it was false. No person, however, may be punished for

publishing a truthful report of proceedings in a court.

Willful behavior


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(6) or grossly negligent failure by an officer of the court to performhis duties in an official transaction.

(7) or grossly negligent failure to comply with schedules andpractices of the court resulting in substantial interference with thebusiness of the court.

(8) by refusal to testify or produce other information upon theorder of a judge acting pursuant to Article 61 of Chapter 15A,Granting of Immunity to Witnesses.

(9) in communication with a juror in an improper attempt to influencehis deliberations.

(9a) by refusal by a defendant to comply with a condition ofprobation.

(10) Any other act or omission specified elsewhere in the GeneralStatutes of North Carolina as grounds for criminal contempt.


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Statutory CriminalContempt

(GS 5A-11(b))

No person may be held in contemptunder this section on the basis of thecontent of any broadcast, publication,or other communication unless itpresents a clear and present dangerof an imminent and serious threat tothe administration of criminal justice.


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Summary vs. Plenary Hearing

When can you act in a

summary fashion and

when must you

provide for a plenaryhearing with notice?


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Requirements for Summary

Proceedings

Must be direct [criminal] contempt of

court- GS 5A-13


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Direct CriminalContempt of Court

A) Committed during the sitting of a court anddirectly tending to interrupt its proceedings.

B) In immediate view and presence and tendingto impair respect due its authority

C) Disobedience of, resistance to, orinterference with a courts lawful process,order, directive or instruction or its execution.


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Guidelines for Summary

Direct Summary ContemptWithin sight or hearing of presiding Judgeand

Within room or immediately proximate to room

where proceedings are being held before courtand

Likely to interrupt or interfere with mattersbefore the court

Must be Imposed substantially contemporaneously


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Summary Procedure

Not required to appoint attorney if held

summarily

Respondent must be informed ofallegations

Respondent must be allowed to respond

to allegations


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What do you do if ??

A person in court becomes disruptive

How about if someone assaults someone at

the door to the courthouse?

What if it is in the hall outside thecourtroom?

What if the assault happens in the parking

lot?


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Summary Proceedings

Lesson one-Think

before you do it.

Lesson two-If you

spend too much time

thinking you may not

be able to proceed in a

summary fashion.


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Dont let yourself be controlled.

If you feel like you

are about to lose it,

set the defendantaside and deal with

any issues later.

Not a bad policyeven if you are not

upset.


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Plenary Hearings

Respondent must receive copy of order

Order must be specific as to conduct which is

alleged to be the basis of the order Judge is trier of fact

Judge must make finding of facts and

conclusions of law In criminal contempt, may secure appearance

with bond or other 15A-305 process (not in

Civil cases)

A Judge or other judicial official issues notice

of hearing or by notice


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Interesting cases

McKillop v. Onslow County, 139 NCApp

53, Reaffirms that in a civil case the trier of

fact may use the fact that a witness invokedtheir Fifth Amendment rights against them.

Plaintiff must choose between her right not

to incriminate herself in a pending criminal

trial and her claim that she cannot be held in

civil contempt


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STATE V. GILLEY (Ct. App. 1999)1999 N.C. App. Lexis 1177

Court held that finding and punishment forcontempt may be double jeopardy as to a

charge of assault in a criminal proceeding


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Sometimes the requirements of

the law are unreasonable


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JP the legal cartoon, by David Carter. Displayed with consent of author.


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The Practical

or

How do we handle those

pesky non-compliers.


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Who are these people before you.

Get out of the habit of calling the parties the

plaintiff and the defendant.

In fact it is not all that unusual to havepending contempt motions against each of

the parties.

It is a lot easier if you refer to the parties asthe petitioner and the respondent.

Think about this too when you are hearing a

ED case.


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Domestic Relation Cases

Most of the contempt matters which will

come before you are Domestic Relations

cases. In many of the cases issues which

are not directly related to the case of

contempt are the fuel of the fire you are

fighting.

Lets talk about some of these cases and how

you might approach them.


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Your honor, he wouldnt let me

see the kids.

My practice is to make clear as soon as this

complaint is made, that the sole issue before

the court is the payment or non-payment of

support and whether the respondent had the

ability to comply.


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Pro Se Parties

In Child Support cases IVD or Clerk will cite for

violation

IVD will help with establishment

We recruit attorneys to appear in Clerk support

cases for one day appearances with fees ordered of

respondents found in violation

Respondents have right to court appointedattorney if indigent

In non-support cases-you may suggest adapting

the Show Cause Order from the AOC forms


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You may consider making a brief statement

to the parties that each is under an

obligation to comply with court orders and

if no order is in place that each party

remains the parent of the children.

But dont get into a lengthy discussion. Tell

them what you want to say and go on to the

next case.

Do you say anything?


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Sometimes you may have problems with

Attorneys


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What do you do with an attorney

Remember, first, the problems of

maintaining a practice, but

You must be hard hearted on occasions

One of the main complaints of the public is

what appears to the public to be deference

to lawyers at the expense of the public

You can avert many of these feelings by

making sure that attorneys met deadlines

and by keeping the non-attorneys informed


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I lost my Job.

Contempt may include failure to take reasonable efforts toavoid non-compliance.

Sell some or you property

Must identify what assets the defendant has.

Value of assets Get rid of secured property to increase available

cash

Fulfill specific requirements of a job search

Make list of 3 places have gone each day in searchof job with listing of name of person contacted,

address and phone number

Fulfill educational program to enhance employability


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Many of the people we deal with are less than pleasant.


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If I go to jail Ill lose the new job Ive got

lined up for tomorrow morning.

Remember that a large percentage of thenew jobs never happen

Maybe get confirmation from the boss

Check back in file and see if this same job hasbeen used as an excuse before

If you do accept as real, put employer information in

order so you can review later

How about weekends/nights in jail if in criminalcontempt


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How about setting contingent

appearances if in doubt

Defendant is given two appearance dates

Clerk or IV-D agent may excuse to second date

if in compliance

If respondent does not comply with certain

conditions, he is to reappear on first date


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I cant make the children go

with him.

Be careful in holding a respondent incontempt for not compelling visits

Hancock v. Hancock, 122 N.C. App 518 (1996)

(holding that physically forcing visitation against the wishes of achild should only be done under compelling circumstance

Anderson v. Lackey, 2004 N.C. App.1617 (2004)(unpublished) (found given past history, mother had failed to comply with

visitation schedule willfully)

All this is to say that if you need use the power ofcontempt at times in visitation, be sure to state in yourorder the compelling reasons


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Our work affects families

It is not always

rewarding but

remember, often our

efforts mean a greatmany people who are

not in court and whom

we will never meet.


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"A judge is a law student who

marks his own test papers."

H.L. Mencken

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200502 Contemp Neely