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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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Categories of Contempt
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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Categories of Contempt
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