Petition for Writ of Certiorari — Ford v. United States

Supreme Court of the United States

OCTOBER TERM, 1992

INTERNATIONAL UNION,

UNITED MINE WORKERS OF AMERICA and

UNITED MINE WORKERS OF AMERICA, DISTRICT 28,

- Petitioners,

JOHN L. BAGWELL; CLINCHFIELD COAL Co.; and

SEA “B” MINING Co.,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of Virginia

PETITION FOR A WRIT OF CERTIORARI

ROBERT H. STROPP, JR.

900 15th Street, N.W.

Washington, D.C. 20005

JOHN R. MOONEY

1341 G Street, N.W.

Of Counsel: Washington, D.C. 20005

ANDREW P. MILLER WALTER KAMIAT

2101 L Street, N.W. LAURENCE GOLD

Washington, D.C. 20037 (Counsel of Record)

VIRGINIA A. SEITZ 815 16th Street, N.W.

1000 Connecticut Ave., N.W. Washington, D.C. 20006

Washington, D.C. 20036 (202) 637-5390

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

® AGB. 0

ee A ee — &

QUESTIONS PRESENTED

1. In Gompers v. Buck’s Stove & Range Co., 221

U.S. 418, 443 (1911), this Court declared that, in the

context of contempt proceedings, the “distinction between

refusing to do an act commanded (remedied by imprison-

ment until the party performs the required act), and

doing an act forbidden (punished by imprisonment for

a definite term)” is a distinction that is “sound in prin-

ciple, and generally, if not universally, afford[s] a test by

which to determine the [civil or criminal] nature of the

punishment.” 221 U.S. at 443 (emphasis added). See

also Hicks v. Feiock, 485 U.S. 624 (1988) (reaffirming

Gompers in context of contempt fines). Against this

background, the first question presented here is:

Whether—as the Virginia Supreme Court held below,

and as is the growing trend in the lower courts—a

contempt proceeding may be treated as civil in na-

ture (so that none of the constitutional requirements

for a criminal contempt proceeding need be followed)

where the defendant is charged with having taken

certain completed actions that were prohibited by

previously imposed judicial orders, and where a find-

ing by the court that the defendant took such pro-

hibited actions leads to the sentencing of the defend-

ant to pay to the court (or the state) substantial fines

(in fixed amounts not measured by any harm suffered

by a civil party) that the court had established at the

time of its initial orders?

2. In Gompers v. Buck’s Stove & Range Co., supra,

this Court—in passing on the claim that a civil contempt

proceeding survived the settlement of the main civil case

that generated the contempt proceeding—-held that civil

contempt proceedings, unlike criminal contempt proceed-

ings, “necessarily end[] with the main cause”: “When

the main case was settled, every proceeding which was

dependent on it, or a part of it, was also necessarily

settled.” 221 U.S. at 451. Against this background, the

second question presented here is:

(i)

ii

Whether—as the Virginia Supreme Court held below,

in agreement with one line of conflicting lower court

decisions—a contempt proceeding may be treated as

civil when it generates substantial non-compensatory

contempt fines that survive the full settlement of the

main civil case solely in order that the court is able

to vindicate its own authority?

3. Whether the non-compensatory civil contempt fines

of $52 million at issue here—analogous to the punitive

damages at issue in TXO Production Corp. v. Alliance

Resources Corp., No. 92-479, and the civil forfeiture at

issue in Austin v. United States No. 92-6073—were so

excessive as to violate the Due Process Clause of the

Fourteenth Amendment and the Excessive Fines Clause

of the Eighth Amendment?

TABLE OF CONTENTS

OPINIONS BELOW ................. ilieiasaniaiaieiimngnenintaietecesmnatin

I. THE ISSUES CONCERNING THE CONSTI-

TUTIONAL DISTINCTION BETWEEN

CIVIL CONTEMPT AND CRIMINAL CON-

EE EE

A. The am Constitutional Considera-

EEE SEE A a

B. The Mendatery /Pochibitecy ie

C. The Continued, Public Prosecution of “Civil”

Contempt Orders After The Final Settle-

ment Of The Main Civil Action...

Il. THE EXCESSIVE FINES ISSUE __.

EEE CT

(iii)

CASES

iv

TABLE OF AUTHORITIES

Page

Aradia Women's Health Center wv. Operation

Rescue, 929 F.2d 530 (9th Cir. 1991) ............... 17

Austin v. United States, No. 92-6073 cert. granted,

61 L.W. 3496 (Jan. 15, 1993) cee TF

Bessette v. W. B. Conkley, 194 U.S. 324 (1904) 22

Blake Associates v. Omni Spectra, Inc., 118 F.R.D.

283 (D. Mass. 1988) . as 24

Bloom v. Illinois, 391 US. 194 (1988) . a 5,9

Clark v. International Union, United Mine Work-

ers, 752 F. Supp. 1291 (W.D. Va. 1990)... 27

De Rienzo v. Borrelli, 178 Misc. 752, 36 N.Y.S.2d

641 (1942) .......... 24

DeShaney v. Winnebago Cty. ‘Dept. “of Social

Services, 489 U.S. 189 (1989) Se 13

Doyle v. London Guarantee & Accident Co., 204

EE 22

Flight Engineers Int. v. Eastern Air Lines, 301

F.2d 756 (5th Cir. 1962) . 24

General Electric Co. v. Seltzer, 161 F. ‘Supp. 200

RR ae ee ne ae be

Gompers v. Buck's Stove & Range Co., 221 US.

Cf SS a passim

Hess v. Finn, 176 Misc. 407, 27 N.Y.8.2d 80

Hicks v. Feiock, 485 U.S. 624 (1988) .. attains passin

Hoffman wv. Beer Drivers & Salesmen’s ‘Local

Union No. 888, 686 F.2d 1268 (9th Cir. 1976) . 18

Hutto v. Finney, 437 U.S. 678 (1978) — 28

In re Contempt of Dougherty, 429 Mich. 81, 413

N.W. 2d 392 (Mich. 1987) . 14

In re Grand Jury Proceedings, 574 F.2d 445 (8th

i a 25

In re Nevitt, 117 Fed. 448 (8th Cir. 1902) . ——— 12, 22

Jencks v. Goforth, 57 N.M. 627, 261 P.2d 655

(1953) SSS: A 18

Juidice v. Vail, 430 U.S. 327 (1977) eee ren 28

Kerl v. Hofer, 4 Wash. App. 559, 482 P.2d 806

(1971) . 24

Lasky v. Quinlan, 558 F.2d 1133 (24 Cir. 1977). 25

v

TABLE OF AUTHORITIES—Continued

Page

Latrobe Steel Co. v. United Steelworkers, 545

SR CO, 16, 18

Leman wv. Krentler-Arnold Hinge Last Co., 284

Ee ae ee rece 20

Lovejoy Specialty Hosp. v. Advocates for Life,

Inc., 802 P.2d 684 (Or. App. 1990), pet. rev.

dismissed as moot, 814 P.2d 511 (Or. 1991)... 17

MacNeil v. United States, 236 F.2d 149 (ist Cir.

1956), cert. denied, 352 U.S. 912 (1956)... 26

Maness v. Meyers, 419 U.S. 449 (1975) — 24

McCrone v. United States, 307 U.S. 61 (1939) 22

NLRB v. Truck Drivers & Helpers, 450 F.2d 413

N.Y. State National Organization for Women v.

Terry, 886 F.2d 1339 (2d Cir. 1989), cert. de-

nied, 496 U.S. 947 (1980) ......--.cccccncccccnnneceeceeneee 17

Pacific Gamble Robinson Co. v. Minneapolis & St.

Louis Railway Co., 92 F. Supp. 352 (D. Minn.

RE 24

Parker v. United ‘States, 153 F.2d 66 ‘(ist Cir.

1946) 26

Penfield v. SEC, 330 US. 585. (1947) . 22

People v. Batey, 228 Cal. Rptr. 787 (Cal. App.

1986), cert. denied, 480 U.S. 932 (1987) ........... 18

Roe v. Operation Rescue, 919 F.2d 857 (3d Cir.

RR ai EA a 17

SEC v. American Board of Trade, 830 F.2d 431

(2d Cir. 1987), cert. denied, 485 U.S. 938

(1988) ........ 27

Shakman v. . Democratic Organisation, “533 F.2d

I 16, 18

Shillitani v. United States, 384 US. 364 (1966) 22

State v. King, 82 Wis. 2d 124, 262 N.W.2d 80

I i a al alleles 23

TXO Production Corp. v. Alliance Resources

Corp., No. 92-479, cert. granted, 61 L.W. 3400

ERE eS 8, 29, 30

United States v. Criden, 633 F.2d 346 (3d Cir.

1980), cert. denied, 449 U.S. 113 (1981) .. 26, 28

vi

TABLE OF AUTHOR

Page

United States v. International Union, United Mine

Workers, 190 F.2d 865 (D.C. Cir. 1951) _........... 26

Unitea States v. United Mine Workers, 330 U.S.

Cf ie ee 16, 21, 24

United States v. Work Wear Corp., 602 F.2d 110

TERETE TS: SES LENA 26, 27, 28

Vermont Women’s Health Center v. Operation

Rescue, 617 A.2d 411 (Vt. 1992) —........................ 18

Walker v. Birmingham, 388 U.S. 307 (1967)... 24

Washington Metropolitan Area Transit Authority

v. ATU Local 689, 581 F.2d 617 (D.C. Cir.

ER ee 25

Webster Eisenlohr, Inc. v. Kalodner, 145 F.2d 316

(3d Cir. 1944), cert. denied, 325 U.S. 867

23

White v. Lombardy Dresses, 48 F. ae 730

(S.D.N.Y. 1942) . aw 24

Worden v. Searles, 121 US. 27 (1887) - eiiaideibiaeniiiions 24

Young v. Vuitton, 481 U.S. 787 (1987) .. 2?

STATUTES

PETITION FOR A WRIT OF CERTIOI

OPINIONS BELOW

The decision of the Supreme Court of Virginia is re-

printed in the separately bound Appendix (“App.”) to

this certiorari petition at App. la-20a and published at

244 Va. 463, 423 S.E.2d 349. The decision of the Court

of Appeals of Virginia is reprinted at App. 25a-37a and

published at 12 Va. App. 123, 402 S.E.2d 899. The deci-

sions and orders of the Circuit Court of Russell County,

Virginia, are reprinted at App. 39a-12la and are not

published.

JURISDICTION

The Supreme Court of Virginia entered its decision on

November 6, 1992, and denied petitioners’ timely petition

for rehearing on January 8, 1993. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth, Sixth, Eighth and Fourteenth Amendments

of the United States Constitution are reprinted in relevant

part at App. 124a.

STATEMENT OF THE CASE

1. This action arises from a strike by the members of

International Union, United Mine Workers of America,

and United Mine Workers of America, District 28 (“the

Union”). The strike was called against two affiliated

coal companies, Clinchfield Coal Co. and Sea “B”

Mining Co. (the “Company”), on April 4, 1989, to

protest the Company's unfair labor practices. On April

12, 1989, the Company filed a bill of complaint against

the Union in the Circuit Court of Russell County, Vir-

ginia, alleging various unlawful strike-related activities—

including actions of interference and intimidation by strik-

ers and their supporters directed against those engaged in

the Company’s operations-—and seeking to have the court |

enjoin the Union from engaging in such activities. The

next day, April 13, 1989, the court granted the injunction.

On April 21, 1989, the court, upon the Company’s

Motion to Amend the Temporary Injunction, modified

2

and strengthened its injunction. The court restrained and

enjoined the Union, its officers, agents, servants, employ-

ces and members from engaging or attempting to engage

in numerous broadly framed categories of acts. App.

114a-115a.

On May 16, 1989, on the motion of the Company, the

court held its first contempt hearing. As was the case in

every contempt hearing below, the proceeding was con-

ducted as a civil proceeding tried to the judge who had

issued the injunction, rather than as a criminal proceed-

ing (subject to the applicable requirements of the United

States Constitution) tried to a jury.

At the May 16 hearing, the trial court found that there

had been 72 separate violations of its previously entered

injunctions—including 15 instances of violence, 43 in-

stances of exceeding picket numbers, 10 instances of

blocking ingress and egress to the Company’s facilities,

and 4 instances of technical violations of the amended

injunction, and therefore fined the Union $440,000.

App. 109a.

At this hearing, the court also established a prospective

fine schedule for future violations. The schedule provided

for fines of $100,000 for each future incident involving

any violence in violation of the injunction, and $20,000

for each future incident not involving violence. In addi-

tion, these fines were to “double each day, without limi-

tation.” App. II la.

On June 7, 1989, following another motion of the

Company, the trial court held a second contempt hearing,

found the Union in contempt, and imposed fines totalling

$2,465,000. App. 102a.

For three days, July 19-21, 1989, the trial court held a

third contempt hearing at the motion of the company.

The court entered a third contempt order on July 27,

1989, which fined the Union a total of $4,465,000 (App.

97a), doing so despite admissions that the Company's own

witnesses could not identify the individual or individuals

accused of rock throwing and other acts. Indeed, the Com-

pany’s own attorney conceded that the witness’ testimony

3

was “kind of weak, not the strongest thing.” Hearing Tr.

(July 19, 1989), at 167.

On September 21, 1989, the trial court, at the motion

of the Company, issued its fourth contempt order, impos-

ing fines totalling $16,900,000. In this order, the court

empowered the Company's attorneys to collect all those

fines imposed on or after July 27, 1989, i.e., all fines ex-

cept those issued pursuant to the first two contempt or-

ders. App. 83a.

On October 9, 1989, the fifth contempt order was

issued, at the motion of the Company, imposing fines of

$6,900,000. Specifically, the Union was held responsible

for 71 separate counts of “violence” despite the fact

that in 70 of these counts a perpetrator could not be

identified.’

The sixth, seventh, and eighth contempt orders were

entered in November and December, 1989, at the motion

of the Company, imposing fines in the amount of

$33,400,000.

As already noted, in all of these contempt proceedings,

the contempts were treated as civil in nature, and the

trial judge served as the sole trier of fact, while the

Union was denied the various safeguards accorded to de-

fendants in criminal contempt. In total, the trial court

levied over $64,000,000 in fines against the Union.

2. The Union timely noticed appeals of the first five

orders to the Virginia Court of Appeals where they were

consolidated. (“Clinchfield I”). While this appeal was

pending, the Company and the Union continued to ne-

gotiate to resolve their labor dispute and, on January 1,

1990, announced a full settlement of their labor dispute

* Even where testimony consisted only of a witness having seen

a pair of hands throwing a rock, the Union was fined $100,000.

App. 7la. In many instances, the Union was held responsible for

actions on the sole basis that perpetrators were attired in camou-

flage clothing, which was treated as a striker “uniform.” There

are also cases where unidentified perpetrators were not so attired,

and the Union was nonetheless held responsible and fined $100,000

for each incident. See generally, e.g., Hearing Tr. (Oct. 4, 1989)

at 166-89, 243-64.

4

with the help of a “super mediator” appointed by the

United States Secretary of Labor. The agreement also

specifically provided that the parties would dismiss all

pending litigation and would have vacated all outstand-

ing civil judgments, including the contempt fines. Accord-

ingly, on January 24, 1990, the Company and the Union

jointly moved the trial court to dismiss the Company’s

cause and vacate all uncollected contempt fines.

On September 11, 1990, the trial court granted the

parties’ motion to dismiss the Company’s civil cause

against the Union. Additionally, the court dissolved the

injunctions and vacated those fines payable to the Com-

pany. However, the trial court refused to vacate the

remaining $52,000,000 in fines and—in light of the dis-

missal of the underlying civil cause and the Company’s

motion to vacate the pending contempt fines—the court

appointed John L. Bagwell as a special commissioner

charged with defending and collecting those fines.

Shortly thereafter, Bagwell moved to intervene in

Clinchfield I. :

3. Following the September 11 decision of the trial

court, the Union filed a second appeal seeking reversal of,

inter alia, the sixth, seventh and eighth contempt orders,

the order granting in part and denying in part the joint

motion to vacate and dismiss, and the order substituting

Bagwell as special commissioner. (‘‘Clinchfield IT’).

4. In an opinion and order dated March 26, 1991, the

Virginia Court of Appeals decided Clinchfield I. The

decision denied Bagwell’s right to intervene and ordered

that the fines imposed against the Union under the first

five contempt orders be vacated. App. 34a-37a. The court

of appeals, choosing to apply state law—and noting that,

on its understanding, the state law parallels the applicable

federal law—held that, even if the fines at issue were civil

in nature, “civil contempt fines imposed during or as a

part of a civil proceeding between private parties are set-

tled when the underlying litigation is settled by the parties

and the court is without discretion to refuse to vacate

such fines.” App. 36a.

5

5. Following this decision by the Virginia Court of

Appeals, Bagwell, despite the denial of his request for

party status, petitioned for appeal to the Supreme Court

of Virginia. Specifically, Bagwell sought to appeal the

denial of his petition to intervene and the vacation of the

fines in light of the parties’ settlement. The Union op-

posed the appeal and moved to dismiss. The Virginia Su-

preme Court deferred consideration of these motions.

On March 5, 1992, the Virginia Supreme Court granted

Bagwell an appeal in Clinchfield 1. At the same time, that

court certified Clinchfield 11, which had been fully briefed

and argued and was pending appeal in the Virginia Court

of Appeals. The two cases were then treated as

consolidated.

In a decision dated November 6, 1992, the Virginia

Supreme Court noted that the Union had appealed the

underlying contempt orders, “contend[ing] that the fines

are criminal in character and, therefore, are invalid be-

cause they were imposed without the mandated constitu-

tional protections.” App. 12a. That court rejected that

contention holding that the fines at issue were not crimi-

nal in nature, but rather were civil in nature. App. 15a-

16a.

The Virginia Supreme Court also rejected the Union’s

argument that under federal and state law these fines, if

civil, must be vacated as a consequence of the full settle-

ment of all disputes between the parties, explaining that

“[cjourts of the Commonwealth must have the authority

to enforce their orders by employing coercive civil sanc-

tions if the dignity of the law and public respect for the

judiciary are to be maintained.” App. 17a. That court

also granted party status to Bagwell so he could “uphold

the validity of the subject fines.” App. Ila.

REASONS FOR GRANTING THE WRIT

INTRODUCTION

A. “Criminal contempt is a crime in the ordinary

sense” and “in every fundamental respect.” Bloom vy.

lilinois, 391 U.S. 194, 201 (1988). State criminal con-

6

tempt proceedings must therefore meet the requirements

that the Constitution demands for the trial and punish-

ment of crimes, not simply those requirements demanded

for the adjudication of civil matters. 7d. at 201-208 (col-

lecting cases). That being so, a state may not deny a

defendant those protections by characterizing as a civil

contempt proceeding that which in truth is a criminal

contempt proceeding. The instant case presents two ques-

tions that are fundamental to the proper characterization

of contempt proceedings as civil or criminal in nature.

First, whether a contempt proceeding may be treated

as civil in nature—so that none of the constitutional re-

quirements. for a criminal contempt proceeding need be

followed—where the defendant is charged with having

taken certain completed actions that were prohibited by

previously imposed judicial orders, and where a finding

by the court that the defendant took such prohibited

actions leads to the sentencing of the defendant to pay

to the court (or the state) substantial fines (in fixed

amounts not measured by any harm suffered bya civil

party) that the court had established at the time of its

initial orders.

Second, whether a contempt proceeding may be treated

as civil when it generates substantial non-compensatory

contempt fines that survive the full settlement of the main

civil case solely in order that the court is able to vindicate

its own authority.

The Virginia Supreme Court answered those questions

“yes.” Those answers are contrary to those “principles .. .

settled at least in their broad outlines for many decades”

that this Court has established to answer the threshold

“question of how a court determines whether to classify

the relief imposed in a given proceeding as civil or crimi-

nal in nature, for the purposes of applying the Due

Process Clause and other provisions of the Constitution.”

Hicks v. Feiock, 485 U.S. 624, 631 (1988). The Hicks

Court located those “principles” in the leading case of

Gompers v. Buck’s Stove & Range Co., 221 U.S. 418,

441 (1911), and observed that for the ensuing 77 years

7

this “Court has consistently applied these principles.”

485 U.S. at 631-632.

Nonetheless—as the Virginia Supreme Court’s decision

here and the decisions of other courts cited therein show

—the lower courts are going their own quite different

way, as if Gompers and Hicks had never been decided.

The result is that the lower courts are treating contempt

proceedings that, under the Gompers principles, are crimi-

nal contempt proceedings as civil contempt proceedings,

to be tried as civil cases rather than criminal cases, with-

out the constitutionally required criminal procedures.

While the decision below is singular in its disdain for

Gompers and Hicks as constitutional precedents of bind-

ing force, and in the thoroughness with which it does

away with criminal contempt proceedings as a class in

the Virginia courts, it is otherwise indicative of the domi-

nant trend that is currently running in the lower courts.

This is neither the time nor the place to mince words;

those lower court decisions, by making the full force of

what have heretofore been deemed to be criminal penalties

freely available in civil contempt, create an open season

on criminal contempt. Given the wants and needs of

claimants and of trial judges, as experience reveals those

wants and needs, there is every reason to believe that

decisions, like the one below, will in no time make crimi-

nal contempt proceedings—and their attendant constitu-

tional requirements—as scarce in the legal world as the

California Condor is in the Western sky.

If the test that this Court has determined to be “‘sound

in principle” and “generally” applicable, Gompers, supra,

221 U.S. at 443, for safeguarding the constitutional re-

quirements implicated by the contempt power is to be re-

considered, it is for this Court to undertake that reconsid-

eration for itself, not for the lower courts to presume to

make such a reconsideration on the Court’s behalf.

The particulars of this case make it plain that much

rides on the maintenance of a proper line of demarcation

between criminal contempt and civil contempt. This

“civil” contempt proceeding has generated 8 sets of adju-

8

dications of complex factual questions in which the de-

fendant union was denied the constitutional requisites for

the trial of a criminal case. The resultant “civil” fines

total $52,000,000. Those fines are being pursued even

though the parties to the main civil case that generated

this “ancillary civil contempt proceeding” have settled

their lawsuit and have jointly moved that the Virginia

courts vacate all contempt fines as an integral component

of that overall settlement. It is difficult to conjure up a

larger departure from the constitutional norms declared

by this Court, or one that carries with it a larger financial

penalty or more long-lived effects.

For all these reasons, this certiorari petition should be

granted.

B. In addition to—and conceptually quite separate

from—-the foregoing questions, this case presents a ques-

tion all but identical to the question presented in TXO

Production Corp. v. Alliance Resources Corp., No. 92-

479, cert. granted, 61 L.W. 3400 (Nov. 30, 1992), and

to the question presented in Austin v. United States, No.

92-6073, cert. granted, 61 L.W. 3496 (Jan. 15, 1993).

TXO Production—which arises in the context of a

punitive damages award in a tort case—and Austin—

which arises in the context of a civil forfeiture proceeding

—ask the Court to decide whether either the Due Process

Clause or the Excessive Fines Clause limit non-

compensatory civil monetary penalties. For purposes of

this constitutional analysis, we submit that there is no

viable distinction between non-compensatory civil con-

tempt fines, punitive damages and civil forfeitures. And,

by any measure, the $52,000,000 fine here raises at least

as substantial questions of compliance with the Due Proc-

ess Clause and Excessive Fines Clause as the punitive

damages award in TXO Production or the civil forfeiture

order in Austin.

Thus, whatever else may happen, Question 3 of this

petition should be held for consideration in light of this

Court’s decisions in TXO Production and Austin,

9

I. THE ISSUES CONCERNING THE CONSTITU-

TIONAL DISTINCTION BETWEEN CIVIL CON-

TEMPT AND CRIMINAL CONTEMPT

A. The Applicable Constitutional Considerations

It is helpful, we believe, before moving to a considera-

tion of the applicable black letter rules, to return to

Bloom vy. Illinois, supra, and its discussion of the com-

peting considerations that have served to mold those

rules.

First of all, “the role of criminal contempt and that of

many ordinary criminal laws seem identical—protection

of the institutions of our government and enforcement of

their mandates”. Bloom, supra, 391 U.S. at 201. Given

that identity, the path of the law has been to apply the

full panoply of the Constitution’s criminal law require-

ments to the prosecution of criminal contempts. Indeed,

the Bloom Court recognized tha: t'ie circumstances of

criminal contempt present an additional and particularly

“compelling argument” for applying the Constitution’s

“protection against the arbitrary exercise of official

power”: “Contemptuous conduct, though a public wrong,

often strikes at the most vulnerable and human qualities of

a judge’s temperament”; the contempt power, in other

words, “is an ‘arbitrary’ power which is ‘liable to abuse.’ ”’

391 U.S. at 202.

Bloom recognized that, despite these considerations,

there is a school of thought that an untrammeled civil

contempt power is “necessary to preserve the dignity,

independence, and effectiveness of the judicial process,”

and that the constitutional requirements for the trial and

punishment of crimes, when applied to contempt proceed-

ings, undermine paramount “consideration[s] of efficiency”

and of “‘the desirability of vindicating the author 'y of the

court.” 391 U.S. at 208. The Bloom Court firmly re-

jected that conception:

We cannot say that the need to further respect for

judges and courts is entitled to more consideration

than the interest of the individual not to be subjected

to serious criminal punishment without the benefit of

F 10

all the procedural protections worked out carefully

over the years and deemed fundamental to our sys-

tem of justice. Genuine respect, which alone can lend

true dignity to our judicial establishment, will be en-

gendered, not by the fear of unlimited authority, but

by the firm administration of the law through those

institutionalized procedures which have been worked

out over the centuries. [391 U.S. at 208.]

Nonetheless, with the fewest of exceptions, the lower

courts continue to be moved by a felt-need to augment

their coercive powers by broadening the realm of civil

contempt and by narrowing that of criminal contempt. In

the following pages, we detail the nature and extent of

that growing resistance to the law as this Court has de-

clared it, together with the conflicting lower court deci-

sions that faithfully implement Gompers and Hicks. As

we show, the dominant trend in the lower courts cannot

be squared with a sound respect for this Court’s prece-

dents or for the constitutional provisions on which those

precedents rest.

B. The Mandatory/Prohibitory Dichotomy _

1. In Gompers v. Buck’s Stove & Range Co., supra,

this Court declared that the “distinction between refusing

to do an act commanded (remedied by imprisonment

until the party performs the required act), and doing an

act forbidden (punished by imprisonment for a definite

term)” is a distinction that is “sound in principle, and

generally, if not universally, afford[s] a test by which to

determine the [civil or criminal] nature of the punish-

ment.” 221 U.S. at 443 (emphasis added). ~

The Court explained the basis for this line of demarca-

tion as follows:

[I]mprisonment for civil contempt is ordered where

the defendant has refused to do an affirmative act re-

quired by the provisions of an order which, either in

form or substance, was mandatory in its character.'*’

2 The Gompers Court gave as “examples” :

If a defendant should refuse to pay alimony, or to surrender

property ordered to be turned over to a receiver, or to make a

il

. The order for imprisonment in this class of

cases, therefore, is not to vindicate the authority of

the law, but is remedial, and is intended to coerce the

defendant to do the thing required by the order for

the benefit of the complainant.

On the other hand, if the defendant does that

which he has been commanded noi to do, the dis-

obedience is a thing accomplished. Imprisonment

cannot undo or remedy what has been done, nor af-

ford any compensation for the pecuniary injury

caused by the disobedience. [221 U.S. at 442-43

(citations omitted ).]

Then, in Hicks v. Feiock, supra, where contempt fines

were at issue, the Court reaffirmed this approach:

If the relief provided is a fine, it is remedial when

it is paid to the complainant, and punitive when it is

paid to the court, though a fine that would be pay-

able to the court is also remedial when the defendant

can avoid paying the fine simply by performing the

affirmative act required by the court's order. These

distinctions lead up to the fundamental proposition

that crimir2s! penalties may not be imposed on some-

one who has not been afforded the protections that

the Constitution requires of such criminal proceed-

ings... . [485 U.S. at 632 (emphasis added ).]

In sum, civil contempt concerns a party who is subject

to a court order to perform discrete affirmative acts

main © Gaceste time period specific’ therein, and the

atempt order is to coerce the party to do the act re-

quired. See Gompers, supra, 221 U.S. at 442.

In contrast, criminal contempt concerns a party who

has engaged in one or more completed acts that consti-

tute a violation of a court order prohibiting those acts,

with the contempt order imposing a punishment on that

party for having engaged in those completed prohib-

ited acts. And, that characterization obtains whether

conveyance required by a decree for specific performance, he

could be committed until he complied with the order. [221 U.S.

at 442.)

12

the cout is moved by an intent to punish the defendant

for violating that order pure and simple, or by an intent

to do so in order to coerce the defendant not to engage

in repeat violations in the future. See Hicks, supra, 485

U.S. at 635-36.

2. It should be enoug!: -t for 80 years this Court

has proceeded on the basis that the mandatory/ prohibi-

tory dichotomy is sound in principle and generally states

the test that assures against the category of civil contempt

and the category of criminal contempt collapsing into each

other. But given the stubborn refusal of the lower courts

to accept the law as stated in Gompers and reaffirmed in

Hicks, a

cive” effect in the general sense of that term. With re-

gard to civil contempt sanctions, the “coercive” effect is,

of course, a given. And, with regard to criminal con-

tempt sanctions, there is a “coercive” effect in that those

sanctions “tend[] to prevent a repetition of the disobedi-

ence.” Hicks, supra, 485 US. at 635-36 (quoting

Gompers, supra, 221 U.S. at 443). Thus, for the purpose

of distinguishing civil contempt and criminal contempt,

the term “coercive”——-when used in contrast to “punitive”

—must have some content beyond “tend[ing] to prevent

a repetition of the disobedience.” Jd. The mandatory/

prohibitory dichotomy provides that content.

oe ee ene ee eee oa

sanctions “coerce” canta ip Os kes lean

only in the same sense—that all legal rules with stated

penalties coerce compliance: wiz., the coercion takes the

form of deterring wrongful acts by defining those acts as

wrongful and by threatening punishment for future wrong-

ful acts that may take place. In such circumstances, the

only sense in which a party controls his destiny—viz.

“carries the keys of his prison in his own pocket,” Jn re

13

Nevitt, 117 Fed. 448, 451 (8th Cir. 1902)—is the

sense in which each member of the general public carries

the keys to prison in his own pocket each day of his life:

viz., in the sense that each of us is free as long as we do

not violate the criminal law.

The coercive threat of sanctions that back up a manda-

tory order is qualitatively different. Such a threat leaves

the criminal law's area of general deterrence against pos-

sible wrongful acts and enters the area of requiring cer-

tain specified forms of action.’ Precisely because this is

so, the mandatory/prohibitory dichotomy is the only doc-

trinal safeguard against the judicial creation of a body of

civil law that incorporates the criminal law's norms

most without saception, the cttninal low consists of pro

hibitions against “wrongful” action that is to be eschewed

a ae nn Gane Gon ae toes

ures) for violations of these prohibitions.

fines or imprisonment on a party for that party’s viola-

tion of a previously issued prohibitory injunction is noth-

ing but a private civil substitute for what has always been

regarded as a criminal proceeding covered by the Consti-

tution’s requirements for such proceedings. Given the

rn eg agp opel ag fo ye he Rah

fendant in a criminal proceeding, if civil plaintiffs and

oe eS aay GD 6 Ce Gee ce Game Se

dispenses with the necessity of a criminal i

there is every reason to believe that they will take advan-

tage of the opportunity thus presented. It is the office of

* Thus, the distinction between mandatory and prohibitory judi-

cial decrees in the contempt context mirrors the familiar distinction

between acts and omissions. See DeShaney v. Winnebago Cty. Dept.

of Social Services, 489 US. 189, 196 (1989).

14

the mandatory/prohibitory dichotomy to prevent just such

an erosion of the distinction between civil contempts and

criminal contempts.

3. Although much of the lower court law in the con-

tempt context is an effort to avoid the teachings of

Gompers and Hicks, a lucid and persuasive counter-

is In re Contempt of Dougherty, 429 Mich. 81,

413 N.W.2d 392 (Mich. 1987).* In Dougherty the Mich-

Wines & eqpemes Qemn Oho Gane Coast exes te

that a coercive sanction is proper where the contem-

nor, at the time of the contempt hearing, is under a

present duty to comply with the order and is in pres-

ent violation of the order.

* » x *

W jhere there a past duty to obey the court

a dp ity £4 ap aay 09a8 Sas <

is ast © geaper sanction became Ges & noting to

| with the order, or

ee cen ote peace [429 Mich. at

99-100. 413 N.W.2d at 399 (emphasis in original) .]

The Michigan court then determined that “there was

no act that could be coerced that would put defendants

into compliance with the injunction,” and therefore that

“the only appropriate sanction for their contemptuous be-

havior is criminal, after an appropriate criminal proceed-

ing, or a civil order of compensation indemnifying plain-

tiff for any actual damage or loss it sustained.” 429

Mich. at 102, 413 N.W.2d at 400 (emphasis added).

4. The Virginia Supreme Court's decision here is in

a different universe of discourse. The court below gave

* There, a trial judge found several individuals in civil contempt

for twice violating an injunction ordering them not to trespass on,

and not to obstruct the entrances to, the grounds of a plant in which

cruise missile engines were manufactured. After the Michigan

Court of Appeals affirmed, the Supreme Court of Michigan reversed.

15

the back of its hand to the mandatory/prohibitory dicho-

tomy in two sentences. Neither of its rationalizations for

so doing is at all persuasive:

First, the Virginia court opined that the mandatory/

prohibitory dichotomy “presents a distinction without a

difference.” App. 15a.

It is our understanding, however, that it is most em-

phatically not the province of state courts of last resort

to reject this Court’s teachings with respect to the Federal

Constitution’s requirements.

Second, the Virginia court relied on a line of cases

suggesting that this Court’s decision in United States v.

United Mine Workers, 330 U.S. 258 (1947), rejects the

mandatory/prohibitory dichotomy set out in Gompers

and thereby robs Gompers of all vitality.

It is sufficient that this Court does not so understand

Mine Workers. Hicks postdates Mine Workers and re-

States and reaffirms the mandatory/prohibitory dichotomy

set forth in Gompers. See, supra, at p. 11. And Hicks

does so without betraying the slightest concern that Mine

Workers can fairly be treated as a conflicting precedent.’

‘It is hardly surprising that Hicks does not understand Mine

Workers to conflict with Gompers, for this Court’s opinion in Mine

Workers rests on and applies the mandatory /prohibitory dichotomy

set out in Gompers. At the time the coercive civil contempt fines at

issue in Mine Workers were imposed, the United Mine Workers was

in violation of a trial court’s orders requiring the Union to take

certain steps toward bringing about the cessation of an unlawful

strike. This Court read that order as imposing on the Union the

obligation to take the following discrete, affirmative acts the doing

of which would avoid the imposition of the fines:

{a) by withdrawing unconditionally the notice given by it,

signed John L. Lewis, President, on November 15, 1946, to

J.A. Krug, Secretary of the Interior, terminating the Krug-

Lewis agreement as of twelve o'clock midnight, Wednesday,

November 20, 1946, and [b] by notifying, at the same time,

its members of such withdrawal in substantially the same

manner as the members of the defendant union were notified

of the notice to the Secretary of the Interior above-mentioned ;

and [c) by withdrawing and similarly instructing the members

16

5. For the reasons just given, we submit that Gompers

and Hicks establish a mandatory/prohibitory dichotomy

in the terms set out above. Be that as it may, it is even

plainer that this Court’s decisions cannot be read as per-

mitting a test for determining whether a contempt pro-

ceeding is civil or criminal that disregards the nature of

the underlying judicial decree. See supra, at pp. 10-11,

quoting and discussing Gompers, supra, 221 US. at 443,

and Hicks, supra, 485 U.S. at 632. Yet, as the decision of

the Virginia Supreme Court shows, the lower courts are

dispensing with the part of the Gompers-Hicks inquiry

devoted to whether the underlying decree at issue is manda-

tory or prohibitory, offering as justification that the

mandatory/prohibitory dichotomy “was not intended to

be a dispositive test,” Latrobe Steel Co. v. United Steel-

workers, 545 F.2d 1336, 1343 n.27 (3d Cir. 1976), or

that it is “of little utility,” Shakman v. Democratic Or-

ganization, 533 F.2d 344, 349 n.7 (7th Cir. 1976).

Those courts confine themselves to a surface inquiry

in which only the form of the contempt order itself is

examined: If that order is entered prior to a party's

violation of a court's decree and is stated in a conditional

form—viz., is stated as “if a defendant does or fails to do

a certain act, then the following sanction will be im-

posed”—the order is deemed to fall within the area cov-

ered by civil contempt. In contrast, if the contempt order

is entered after the fact and sets a fine or imprisonment

for the violation, the order falls within the area covered

by criminal contempt.

of the defendant union of the withdrawal of any other notice

to the effect that the Krug-Lewis agreement is not in full force

and effect until the final determination of the basic issues

arising under the said agreement. (320 U.S. at 306.)

Thus, this Court made clear that the United Mine Workers and its

officers were not subject to a broad prohibitory order—e.g., do not

strike—but rather to a mandatory order requiring that the Union

and its officers undertake to perform certain discrete, affirmative

acts in order to purge themselves of civil contempt.

17

A line of recent cases arising out of anti-abortion dem-

onstrations is illustrative. For example, in Aradia Wom-

en's Health Center v. Operation Rescue, 929 F.2d 530

(9th Cir. 1991), the trial judge enjoined the defendants

and any person acting in concert with the defendants

“from blocking access to abortion facilities and other ac-

tivities in the state,” and “provided for sanctions of $500

for each prospective violation of the order,” id. at 531.

Defendants violated this order, and the trial judge held

them in civil contempt.

On appeal, the Ninth Circuit acknowledged this

Court’s instruction in Hicks that a contempt fine is civil

“when the defendant can avoid paying the fine simply

by performing the . . . act required by the court's order,”

929 F.2d at 532 (emphasis added). But the Ninth Circuit

determined that defendants had “committed the act that

subjected them to contempt by failing to comply with

the court's prospective order,” id. at 532, and thus held

that the trial judge had properly proceeded in civil con-

tempt, id. Such verbal sleight of hand—through which

a failure-to-comply with a prohibition is somehow trans-

muted into the failure to do an affirmative act commanded

—empties the mandatory/prohibitory dichotomy of mean-

ing and robs the Gompers test of its content.

Other lower court decisions have adopted the same

Sstrategem. See, ¢e.g., Roe v. Operation Rescue, 919 F.2d

857, 869 (3d Cir. 1990) (trial judge appropriately en-

forced a prohibitory order in civil contempt because “the

contemnors’ obligation to pay these fines was contingent

on a future violation of its orders”); N.Y. State Na-

tional Organization for Women v. Terry, 886 F.2d 1339,

1351 (2d Cir. 1989), cert. denied, 495 US. 947 (1990)

(trial judge appropriately enforced a prohibitory order

in civil contempt because “[t]he prospectively fixed penal-

ties were plainly intended to coerce compliance with the

court's order and to preserve the parties’ then-existing

legal rights’); Lovejoy Specialty Hosp. v. Advocates for

18-

Life, Inc., 802 P.2d 684 (Or. App. 1990), pet. rev. dis-

missed as moot, 814 P.2d 511 (Or. 1991) (same).°

In practical terms, this burgeoning rule—that, even

where a prohibitory decree is being enforced, the contempt

is civil if the surface form of the order imposing contempt

sanctions is conditional—shrinks criminal contempt to

the verge of invisibility. To avoid the inconvenience of

meeting the Constitution’s requirements for criminal

cases, all that a judge need do is announce in advance

that, if his decree is violated, he will impose a fine or a

jail sentence. Doing so transforms all sanctions imposed

for any subsequent disobedience into civil contempt sanc-

tions. The lower courts’ creation of this rule—which

trivializes this Court’s precedents and the important con-

stitutional interests these precedents implement—calls for

for this Court’s review.

® Some lower courts that have refused to follow Gompers and

Hicks have also followed slightly different strategems.

First, some courts that disregard the mandatory/prohibitory

dichotomy state the test to be whether the trial judge’s true purpose

in imposing contempt sanctions was primarily to coerce or to punish.

The Virginia Supreme Court relied heavily on the trial judge’s own

statements of his purpose in imposing contempt fines. See, e.g., App.

13a-15a (quoting trial judge’s explanation of reasons for the imposi-

tion of the contempt fines and relying on “the trial court’s clear

intent”). See also, e.g., Latrobe Steel Co., supra, 545 F.2d at 1344 &

n.41; Shakman, supra, 533 F.2d at 349-50.

But this negation of mandatory/prohibitory dichotomy is as con-

trary to Gompers and Hicks as its formalistic counterpart. In

Hicks, this Court condemned just such an inquiry into a judge’s

subjective purpose in imposing contempt sanctions: “Although the

purposes that lie behind particular kinds of relief are germane to

understanding their character, this Court has never undertaken to

psychoanalyze the subjective intent of a State’s laws and its courts,

not only because that effort would be unseemly and improper, but

also because it would be misguided.” 485 U.S. at 635.

Second, other courts reach results that cannot be squared with

Gompers and Hicks through opinions that do not make clear the

basis for their divergence. E.g., Hoffman v. Beer Drivers & Sales-

men’s Local Union No. 888, 536 F.2d 1268 (9th Cir. 1976); NLRB

v. Truck Drivers & Helpers, 450 F.2d 413 (3d Cir. 1971); Vermont

Women’s Health Center v. Operation Rescue, 617 A.2d 411 (Vt.

1992) ; Jencks v. Goforth, 57 N.M. 627, 261 P.2d 655 (1953) ; People

19

C. The Continued, Public Prosecution of “Civil” Con-

tempt Orders After The Final Settlement Of The

Main Civil Action

The contempt fines at issue come out of contempt

proceedings that were instituted at the motion, and for

the benefit, of private civil complainants; these proceed-

ings were styled civil proceedings ancillary to the main

civil action. Nevertheless, the trial court and the Virginia

Supreme Court refused to allow the private civil parties,

by joint motion, to terminate the contempt proceedings

and to vacate the contempt fines. Instead, the trial court

responded to that motion by appointing a special commis-

sioner and charging him with defending the contempt

judgments on appeal and instituting all further actions

necessary to collect the accumulated contempt fines.

The Virginia Supreme Court affirmed these trial court

orders, reasoning that regardless of the wishes or interests

of the private civil parties who initially sought contempt,

“[clourts of the Commonwealth must have the authority

to enforce their orders by employing coercive, civil sanc-

tions if the dignity of the law and public respect for the

judiciary are to be maintained.” App. 17a.

In this regard, as in the regard addressed in part B

above, the decision belov -onflicts with this Court’s

Gompers decision and with Gompers’ progeny. And, once

again, in this regard the decision illustrates a growing

trend of decisions that, misconstruing or ignoring

Gompers, extends civil contempt deep into the area cov-

ered by criminal contempt.

1.(a) Gompers involved a challenge to a contempt

order that imposed a term of imprisonment and a mone-

tary obligation on a group of labor leaders at the motion

of a company that had brought a civil action against

those leaders and their labor organization for conducting

an unlawful labor boycott. The company had obtained

an injunction against the boycott, the labor leaders had

violated the injunction, and the company sought relief

v. Batey, 228 Cal. Rptr. 787 (Cal. App. 1986), cert. denied, 480 U.S.

932 (1987).

20

through civil contempt for such violations. After the trial

court held defendants in contempt and determined the

proper contempt penalties, but before the penalties were

actually enforced, the parties in Gompers—like the par-

ties here—reached a full settlement of all disputes and

all litigation between them.

On the basis of that settlement, and in light of the

nature of civil contempt, the Gompers Court held that:

“When the main case was settled, every proceeding which

was dependent on it, or a part of it, was also necessarily

settled.” 221 U.S. at 451 (emphasis added). Any pro-

ceeding to enforce previously imposed civil contempt pen-

alties thus “necessary ended with the settlement of the

main cause of which it is a part.” Jd. at 452.

The Gompers Court-could not have been more plain

that the interest in the vindication of the trial court's

authority cannot justify the continued enforcement of

civil contempt after settlement of the main case. Rather,

vindication of that interest is the province of criminal

contempt, which the Court contrasted with civil contempt

in the following way: “If this had been a separate and in-

dependent proceeding at law for criminal contempt, to

vindicate the authority of the court, with the public on

one side and the defendants on the other, it could not,

in any way, have been affected by any settlement which

the parties to the equity cause made in their private liti-

gation.” 221 U.S. at 451 (internal citations omitted)."

7 Consistent with all of the foregoing, in Leman v. Krentler-

Arnold Hinge Last Company, 284 U.S. 448 (1932), this Court ex-

plained Gompers as follows:

The question of the relation of [a civil contempt] proceeding

to the main suit was fully considered in the case of Gompers

v. Bucks Stove & Range Co., 221 U.S. 418, and it was deter-

mined that the [civil contempt] proceeding was not to be re-

garded as an independent one, but as a part of the original

cause. ... The distinction was made in this respect between

such proceedings and those at law for criminal contempt which

“are between the public and the defendant, and are not a part

of the original cause.” In the Gompers Case . . . as there had

been a complete settlement of all matters involved in the equity

sd

21

We are aware of no decision in this Court in the years

since Gompers that has in any way called this aspect of

Gompers into question.

(b) The decision below, which clothes civil contempt

orders with the precise attribute Gompers holds is

unique to criminal contempt orders—viz., the capacity to

survive a full private settlkement—is clearly contrary to

Gompers. The entirety of the Virginia Supreme Court’s

effort to distinguish Gompers in this regard is that court’s

brief assertion that the monetary relief at issue in Gompers

was “compensatory relief to be paid to the complainant,”

so that Gompers did not involve “coercive, civil contempt

sanctions.” App. 18a.

The Gompers opinion, however, does not even hint

that a distinction between different kinds of civil con-

tempts should make a difference regarding the ability of

the parties to settle their dispute. To the contrary,

Gompers rests its conclusion regarding the effect of settle-

ment on the proposition that civil contempt—as distinct

from criminal contempt—is a “remedial” proceeding, “for

the benefit of the complainant,” and not a proceeding “to

vindicate the authority of the court”:

It is not the fact of punishment, but rather its char-

acter and purpose, that often serve to distinguish be-

tween the two classes of cases. If it is for civil

contempt the punishment is remedial, and for the

benefit of the complainant. But if it is for criminal

contempt the sentence is punitive, to vindicate the au-

thority of the court. [221 U.S. at 441 (emphasis

added ).]

And, the Gompers Court made it quite clear that this

distinction obtains where the civil contempt order can be

termed “ccercive” and where it can be termed “compensa-

tory.” Such a “coercive” civil contempt order is “not in-

flicted as a punishment, but is intended to be remedial by

suit, the contempt proceeding was necessarily ended. ... [284

U.S. at 452-53.)

See also United States v. United Mine Workers, supra, 330 U.S.

at 295 n.61 (1947).

22

coercing the defendant to do what he had refused to do”

and thereby benefiting the civil complainant. 221 U.S.

at 442.°

Once again, this Court has never questioned this aspect

of Gompers.*

(c) The conflict between the decision below and

Gompers is vividly illustrated by the decisions of the trial

court to appoint a special commissioner and to charge

him with further prosecution of the contempt fines here

at issue, and by the decision of the Virginia Supreme

Court to affirm those trial court decisions and to grant

that court-appointed officer party status.

Gompers explained that a civil contempt proceeding—

as a proceeding that serves “remedial [ends] . . . for the

benefit of the complainant”—is “instituted, entitled, tried,

and up to the moment of sentence, treated as a part of

the original cause in equity.” 221 U.S. at 445. In such

a proceeding, the civil complainant is “not only the nomi-

nal, but the actual, party on the one side, with the defend-

ants on the other’’; the civil complainant is acting “‘in its

own right in an equity cause, and not as a representative

of the [government] prosecuting a case of criminal con-

tempt.” Jd.

In contrast, a criminal contempt proceeding—as a pro-

ceeding designed “‘to vindicate the authority of the court”’

—is normally “‘a separate action, one personal to the de-

fendants, with the defendants on one side and the court

8 See also Doyle v. London Guarantee & Accident Co., 204 U.S.

599, 604-605 (1907); Bessette v. W. B. Conkley, 194 U.S. 324, 328

(1904) ; In re Nevitt, supra, 117 Fed. at 458-59.

® See Shillitani v. United States, 384 U.S. 364, 368 (1966) (civil

contempt “is essentially a civil remedy designed for the benefit of

other parties”) ; Penfield v. SEC, 330 U.S. 585, 590 (1947) (citing

Gompers for proposition that punishment for civil contempt, “is

wholly remedial, serves only the purposes of the complainant, and is

not intended as a deterrent to offenses against the public’’) ;

McCrone v. United States, 307 U.S. 61, 64 (1939) (same); see also

Hicks, supra, 458 U.S. at 63 (citing Gompers).

a

————

23

vindicating its authority on the other.”” 221 U.S. at 442

(quoting the lower court’s Gompers decision ).

The criminal nature of the proceedings at issue here is

thus amply demonstrated by the fact that the courts be-

low, finding the normal structure of civil litigation inade-

quate to their purposes, created a new structure that, in

its essence, follows the criminal contempt model. Because

the civil complainants had no continuing interest in en-

forcing the fines, the trial court took from them their

right to control prosecution of their litigation, appoint-

ing a special commissioner to prosecute the contempt

fines, all to vindicate the court's interests.’°

2. The decision below is in conflict with numerous

lower court decisions involving settlement agreements.

(a) For example, the Wisconsin Supreme Court, in an

opinion containing an extensive quotation and discussion

of Gompers, concluded:

Usually a contempt action which seeks to vindicate

the authority and dignity of the court is a criminal

contempt, while a contempt which seeks to enforce

a private right of one of the parties in an action is

a civil contempt. The distinction is often expressed

in the results which flow from the particular finding

of contempt. If the order is coercive or remedial, the

contempt is civil. If the order is purely punitive, the

contempt is criminal. . . . In Gompers, the United

10 Such an arrangement, although styled a part of the initial liti-

gation is, in its substance, a separate piece of litigation. The arrange-

ment certainly does not correspond to the normal structure of civil

proceedings. See Webster Eisenlohr v. Kalodner, 145 F.2d 316 (3d

Cir. 1944), cert. denied, 325 U.S. 867 (1945) (courts may not gen-

erally appoint special masters in a civil case to pursue goals beyond

those that the parties choose to litigate). Rather, it follows what

Gompers described as the normal structure of criminal contempt

proceedings: viz, “a separate action . . . with the defendants on

one side and the court vindicating its authority on the other.”

Gompers, supra, 221 U.S. at 442. See also Young v. Vuitton, 481

U.S. 787 (1987) (a court may exercise criminal contempt authority

by appointing a special prosecutor to prosecute one of the civil

parties for criminal contempt).

24

States Supreme Court held that settlement of the un-

derlying controversy required dismissal of civil con-

tempt grounded in that controversy. Thus, under this

rule, civil contempt begun before or, as here, after

the settlement of the underlying dispute, is moot be-

cause it cannot achieve a coercive or remedial effect.

[State v. King, 82 Wis. 2d. 124, 262 N.W. 2d 80,

82, 84 (1978) (internal citations omitted) .} "

(b) The decision below also conflicts with another line

of federal cases, which has followed Gompers’ reasoning

outside the context of settlement agreements. These cases

stand for two propositions that cannot be squared with

the decision below: first, that civil contempt proceedings

and orders must terminate if the civil complainant for any

reason (whether due to settlement or otherwise) becomes

disentitled to the benefits of the contempt proceedings that

the complainant has instituted; and, second, that in such

circumstances, the court’s interest in vindicating its own

authority cannot, by itself, sustain a civil contempt.”

11 Other decisions, with similar facts, reach the same conclusion.

See, e.g., Flight Engineers v. Eastern Air Lines, 301 F.2d 756

(5th Cir. 1962); Blake Associates v. Omni Spectra, 118 F.R.D. 283,

293 (D. Mass. 1988) ; General Electric Co. v. Seltzer, 161 F. Supp.

200, 201-202 (D. Del. 1958); Pacific Gamble Robinson Co. v. Min-

neapolis & St. L. Ry. Co., 92 F. Supp. 352, 357 (D. Minn. 1950) ;

White v. Lombardy Dresses, 48 F. Supp. 730, 731-32 (S.D.N.Y.

1942); Kerl v. Hofer, 4 Wash. App. 559, 482 P.2d 806, 809-10

(1971) De Rienzo v. Borrelli, 178 Misc. 752, 36 N.Y.S. 2d 641

(1942); Hess v. Finn, 176 Misc. 407, 27 N.Y.S. 2d 80 (1941).

12 These propositions are not only consistent with Gompers, but

with this Court’s related rule that civil contempt penalties terminate

—regardless of any need to vindicate the court’s authority—if the

legal theories underlying the violated injunction prove without

merit. See, e.g., United States v. United Mine Workers, supra, 330

U.S. at 295 & n.61; Worden v. Searles, 121 U.S. 27, 30 (1887).

In contrast, this-Court’s rule is that a criminal contempt penalty

may normally be enforced regardless of the merits of the legal

theories underlying the violated injunction. See, e¢.g., Maness v.

Meyers, 419 U.S. 449, 458-59 (1975); Walker v. Birmingham, 388

U.S. 307 (1967).

ee ee

25

For example, the Second Circuit, in Lasky v. Quinlan,

558 F.2d 1133 (1977), dismissed civil contempt fines in

a context—where the complainants, who had been jail

inmates when they initiated proceedings to improve jail

conditions, had each been released from jail subsequent

to obtaining the contempt orders—that is logically indis-

tinguishable from the instant case.”

The Second Circuit held that because “there [was] no

longer any party to the [civil] action having an interest in

the enforcement” of the contempt fines, those fines must

be dismissed. /d. at 1136. And, in a passage that could

not be more relevant here—and could not be more clearly

in conflict with the decision below—the Court of Appeals

added:

Finally, while it may be argued that the Court it-

self has an interest in assuring that litigants comply

with its orders, it is well established that a civil con-

tempt proceeding is wholly remedial, to serve only

the purposes of the complainant, not to deter offenses

against the public or to vindicate the authority of the

court. [358 F.2d at 137 (internal quotation marks

and citations omitted ).]’*

18 Lasky involved coercive civil contempt fines, payable to the

court, that the court imposed on a county sheriff for his repeated

failure to comply with court orders to improve jail conditions. As

here, subsequent to the imposition of the fines but prior to their

collection, the civil complainants who had sought the contempt or-

ders had become disentitled to any further relief.

14 See also In Re Grand Jury Proceedings, 574 F.2d 445, 446-47

(8th Cir. 1978) (vacating a civil contempt order issued to coerce

compliance with a subpoena, because the subpoena had been with-

drawn: “[t]he purpose of a civil contempt order is to provide a

remedy for one of the parties” and “[i]f the complaining party is

no longer entitled to the benefit of the contempt order, the contempt

proceeding should be terminated”); WMATA v. ATU Local 689,

531 F.2d 617, 622 (D.C. Cir. 1976) (court could not impose civil

contempt fines sua sponte after civil complainant obtained contempt

finding and then abandoned case, because “in the civil contempt

setting, the court has no independent interest in vindicating its

26

3. At the same time, the decision below is part of a

recent trend in the lower courts to abandon the Gompers

view and to adopt the view_that coercive civil contempt

orders may rest entirely on the trial court’s interest in

vindicating its own authority, independent of any inter-

est of the civil complainant.

This recent line of authority not only conflicts with

prior decisions of this Court—and many other courts—

regarding the differences in character and purpose between

civil and criminal contempt, it also undermines the con-

stitutional rights of contempt defendants by permitting

the courts to employ civil contempt to pursue no purpose

other than the purpose—vindicating the court’s authority

—that criminal contempt serves to vindicate.

(a) The Virginia Supreme Court cited two federal

court of appeals decisions for the proposition that a

court’s interest in vindicating its own authority can—

standing independent of the interests or desires of any

civil complainant—be the basis for continuing coercive

civil contempt proceedings. See App. 17a (citing United

States v. Criden, 633 F.2d 346 (3d Cir. 1980), cert. de-

nied, 449 U.S. 113 (1981); United States v. Work Wear

authority should its orders be violated”) ; MacNeil v. United States,

236 F.2d 149, 154 (1st Cir. 1956), cert. denied, 352 U.S. 912 (1956)

(“trial court can have only a public, as distinguished from private,

interest in the enforcement of its own decrees” and therefore “any

action of contempt initiated by the court of its own motion must be

regarded as criminal in nature for the vindication of the court's

authority and punishment of a public wrong”); United States v.

International Union, United Mine Workers, 190 F.2d 865, 873 (D.C.

Cir. 1951) (“civil contempt proceeding is wholly remedial . . . not

to deter offenses against the public or to vindicate the authority of

the court”); Parker v. United States, 153 F.2d 66, 71 (ist Cir.

1946) (“civil contempt proceeding must be terminated” once a

complainant becomes “disentitled to the further benefit of [a civil

contempt] order,” because a court has no such interest in main-

taining in force its order’).

27

Corp., 602 F.2d 110 (6th Cir. 1979)). These two de-

cisions do aptly illustrate the trend noted above.”

Criden involved a journalist who was jailed for civil

contempt at the motion of the United States because she

refused to answer certain questions in the pretrial hearing

of a criminal case. When the judge closed the record of

the hearing, the contemnor moved to vacate her contempt

on the basis that she could no longer submit testimony, so

that the complaining party could no longer derive benefit

from her confinement. The trial court denied her motion.

In affirming this judgment, the Third Circuit found

the journalist’s assertion that she could no longer submit

testimony to be factually inaccurate, since the trial court

was willing to reopen the hearing and the testimony. But

that court went further and held that continued imprison-

ment under the civil contempt order was justified regard-

less of whether the defendant’s testimony was still needed.

This was so because “[s]anctions for civil contempt may

be used . . . to coerce the defendant into compliance with

the court’s order, thereby vindicating the court’s institu-

tional authority.” 633 F.2d at 352."

In Work Wear Corp., the Sixth Circuit upheld a dis-

trict judge’s refusal to reduce a civil contempt fine despite

18 For other recent decisions that are similar to Criden and Work

Wear, see SEC v. American Board of Trade, 830 F.2d 431, 441 (2d

Cir. 1987), cert. denied, 485 U.S. 938 (1988) (affirming trial court’s

sua sponte initiation of civil contempt proceedings and imposition

of civil contempt fines despite admission that “we have found no

case permitting such a practice”); Clark v. International Union,

United Mine Workers, 752 F. Supp. 1291, 1298-1301 (W.D. Va.

1990) (district court sua sponte initiating civil contempt proceed-

ings, imposing fines, and holding that such fines survive settlement

of underlying civil litigation).

’©In the Criden court’s view, allowing a contemnor to escape a

court’s civil contempt sanction whenever the initial complaining

party no longer needs or wants the performance at issue, would

relegate the district court to “the role [of] . . . a hired umpire

dragged in from the street to preside over a dispute between private

litigants.” Jd.

28

the stipulation of all parties to the civil litigation that the

fine be reduced. The court of appeals reasoned that the

“contempt sanction imposed was . . . designed to secure

compliance with and respect for the court’s order”; this

was an interest of the court that civil parties could

not waive. 602 F.2d at 115. The court of appeals rea-

soned that although the contempt at issue was civil, “there

is no bright dividing line between civil and criminal con-

tempt,” and “[v]indication of judicial authority is [an

interest] present in both.” /d."

While the court below is quite right that its decision is

consistent with this recent line of decisions, neither its

decision, nor the decisions it cited, are consistent with the

decisions of this Court or the many decisions of other

courts that we have cited. This conflict over Gompers’

meaning—which goes to the essential natures of civil

contempt and criminal contempt—is one that has reached

a dimension calling for this Court’s intervention.

III. THE EXCESSIVE FINES ISSUES

The Virginia Supreme Court rejected the contention

that the civil contempt fines of $52,000,000 ordered by

the trial judge here are so excessive that their imposition

violates both the Due Process Clause of the Fourteenth

Amendment and the Excessive Fines Clause of the Eighth

17 The principal precedents of this Court that Criden and Work

Wear cite for their view of coercive civil contempt are Hutto v.

Finney, 437 U.S. 678, 691 (1978) and Juidice v. Vail, 430 U.S. 327,

336 n.12 (1977). See, e.g., United States v. Criden, supra, 633 F.2d

at 352 & n.2; Work Wear, supra, 602 F.2d at 115. Neither Hutto

nor Juidice were cases involving civil or criminal contempts, and

neither purported in any way to call into question any aspects of

this Court’s previously established jurisprudence in the contempt

area. The cited dicta in Hutto and Juidice are nothing more than

general statements that civil contempt sanctions, which are remedial

in nature, may serve to vindicate the court’s authority at the same

time as serving the relevant private interests. That point does

not in any way support the proposition that civil contempt pro-

ceedings can be pursued solely to vindicate the authority of a court,

wholly independent of any private remedial purposes. See Gompers,

supra, 221 U.S. at 443.

29

Amendment. This Court is presently considering two

cases which present the same constitutional issues.

In TXO Production Corp. v. Alliance Resources Corp.,

No. 92-479, cert. granted, 61 L.W. 3400 (Nov. 30,

1992), the Court will determine whether a state’s im-

position of a $10 million punitive damages award for

conduct that caused only modest financial injury vio-

lates substantive due process."" And, in Austin v. United

States, No. 92-6073, cert. denied, 61 L.W. 3496 (Jan.

15, 1993), this Court will decide whether the Exces-

sive Fines Clause of the Eighth Amendment applies to

civil forfeiture actions brought by the government, and,

if so, state the test for determining when a civil penalty

is unconstitutionally excessive.”

Punitive damages awards in tort cases and civil for-

feiture orders, like the “civil contempt” fines which are

at issue here, are intended to operate as deterrents to

identified wrongful behavior that also might, but need

not, have risen to the level of criminal conduct. The

amount of such civil penalties is not intended to com-

pensate any victims of wrongdoing; the purpose is to

coerce future compliance with a particular legal norm.

Because all three of these civil penalties serve a single

office in our system of civil justice, all three should be

subject to the same constitutional safeguards.

18 Specifically, the Court granted certiorari to decide, inter alia,

the following question: “Did excessive and disproportionate nature

of $10 million punitive damages award violate potential lessor’s

substantive due process rights?” 61 L.W. 3320 (Nov. 30, 1992).

19 Specifically, the Court granted certiorari to address the follow-

ing questions: (1) “Should concepts of proportionality arising from

the Eighth Amendment be applied to forfeiture of property under 21

U.S.C. § 881(a)(4) and (a)(7)?”"; (2) “When showing is made that

the forfeiture of property is excessive, must government show that

interest ordered forfeited is not so grossly disproportionate to

offense committed by property owner as to violate Eighth Amend-

ment’s prohibitions of cruel and unusual punishment and excessive

fines?” 61 L.W. 3516 (Jan. 26, 1993).

30

In this action, the Virginia Supreme Court held that a

government agent may seek—absent any claim of com-

pensatory damages and against the will of both parties—

to collect civil contempt fines of $52,000,000, clearly

among the largest civil contempt fines ever levied.” If

there is ever to be a case in which the Constitution would

condemn a civil penalty as so grossly excessive as to

amount to a violation of the Due Process Clause or Ex-

cessive Fine Clause, this is that case.

Thus, TXO Production and Austin potentially affect

the instant petition, which should, at a minimum, be held

pending the issuance of the decisions in those cases.

CONCLUSION

For the above stated reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Rosert H. Stropp, Jr.

900 15th Street, N.W.

Washington, D.C. 20005

JOHN R. MOONEY

1341 G Street, N.W.

Of Counsel: Washington, D.C. 20005

ANDREW P. MILLER WALTER KAMIAT

2101 L Street, N.W. LAURENCE GOLD

Washington, D.C. 20037 (Counsel of Record)

VIRGINIA A. SEITZ 815 16th Street, N.W.

1000 Connecticut Ave., N.W. Washington, D.C. 20006

Washington, D.C. 20036 (202) 637-5390

*°'We have examined all cases classified under the West Key

Number System as Contempt 75 (Amount of Fine) and discovered

no case imposing a civil contempt sanction equal to or in excess of

$52 million. We have been informed by the United States Depart-

ment of Justice that the United States does not compile statistics

related to the amounts of civil contempt fines, and is not aware of

any other entity which might do so.

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