Opposition Brief — Ford v. United States

Dou, US. |

BITED

MAY 6 1993

OFFICE OF THE GLE

No. 92-1625

In The

Supreme Court of the United States

October Term, 1992

s

INTERNATIONAL UNION, UNITED MINE WORKERS

OF AMERICA and UNITED MINE WORKERS OF

AMERICA, DISTRICT 28,

Petitioners,

JOHN L. BAGWELL, SPECIAL COMMISSIONER, et al.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

S

RESPONDENT'S BRIEF IN OPPOSITION

s

WituiaM Bb. Porr

CLINTON S. Morse

FRANK K. FRIEDMAN

Woops, Rocers & HAZLEGROVE

Dominion Tower, Suite 1400

10 South Jefferson Street

Post Office Box 14125

Roanoke, Virginia 24038-4125

(703) 983-7600

Counsel for Respondent

John L. Bagwell,

Special Commissioner

eee yf iy. ti or yf

OR CALL COLLECT (402) 342 283

QUESTIONS PRESENTED

Whether fines assessed in accordance with a prospec-

tive fine schedule, designed to coerce a recalcitrant

party from continuing to violate an injunction that

both prohibits unlawful conduct and requires certain

affirmative conduct, are “civil” in nature where the

recalcitrant party has the power to avoid the specified

fines by complying with the court’s orders?

Whether the Virginia Supreme Court was correct in

holding that it is a matter of state, not federal, law

whether the subsequent settlement of underlying civil

litigation necessarily moots coercive, civil sanctions

imposed during the litigation?

Whether contempt fines assessed in accordance with

a prospective fine schedule imposing a specific

amount for each future violation of an injunction con-

travene either the Due Process Clause of the Four-

teenth Amendment or the Excessive Fines Clause of

the Eighth Amendment, where the contemnor can

avoid additional fines at any time merely by comply-

ing with the court’s lawful injunction?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............--:eeeceeeees i

TABLE OF AUTHORITIES ............:-ceceeeeeees iv

STATEMENT OF THE CASE..........--.-ccccsee0. 1

REASONS FOR DENYING THE WRIT............. 8

I. THE DISTINCTION BETWEEN CIVIL AND

CRIMINAL CONTEMPT IS WELL-SETTLED;

THE DECISION BELOW IS CONSISTENT

WITH THIS COURT’S PRECEDENTS AND

DOES NOT CONFLICT WITH ANY DECI-

SION OF AN INFERIOR FEDERAL COURT

OR A STATE COURT OF LAST RESORT.... 12

A. The Distinction Between Civil Contempt

and Criminal Contempt is Well-Settled.. 12

B. The Decision Below Correctly Applies the

Principles Set Forth in Gompers and

_ MPT) 14

C. The Decision Below Accords With the

Unanimous View of Other Courts that

Fines Imposed Under a Prospective Fine

Schedule Intended to Coerce a Party to

Comply with Outstanding Court Orders

Te Ey ee 16

D. Gompers and Hicks Do Not Establish a

Rigid, Bright-Line Rule that a Contempt

Sanction is Criminal Merely Because it

was Imposed for a Violation of a “Prohib-

feory” OVGes. ...2cccccsscocccccesuseeees 18

eee

TABLE OF CONTENTS - Continued

Page

Il. THE VIRGINIA SUPREME COURT’S DECI-

SION THAT THE SUBSEQUENT SETTLE-

MENT OF THE UNDERLYING LITIGATION

IN THIS CASE DID NOT MOOT THE CIVIL

CONTEMPT FINES PAYABLE TO THE STATE

AND COUNTIES IS A MATTER OF STATE,

oe ne 25

Ill. THE VIRGINIA SUPREME COURT'S DECI-

SION THAT THE CONTEMPT FINES IN THIS

CASE DO NOT VIOLATE SUBSTANTIVE

DUE PROCESS DOES NOT WARRANT

REVIEW BY THIS COURT, NOR SHOULD

THE PETITION BE HELD FOR TXO PRO-

DUCTION CORP. V. ALLIANCE RESOURCES

OR AUSTIN V. UNITED STATES............ 27

EEE EES PD 30

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Aradia Women’s Health Center v. Operation Rescue,

SEP Tice Be Gee Ge Be oc ccc cc ccccccccsscece: 17

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

ee Se FO US PTT 11, 29, 30

Bagwell v. International Union, UMWA, 244 Va. 463,

ee es ccc kcrecandstécanescs passim

Brotherhood of Locomotive Firemen and Enginemen v.

Bangor & Aroostook Railroad Co., 380 F.2d 570

(D.C. Cir.), cert. denied, 387 U.S. 570 (1967)........ 16

Clark v. International Union, UMWA, 752 F. Supp.

fF errr s 1, 6, 18, 21

Department of Energy v. Ohio, 503 US. __, 118

Se Se En ckéddeactonsunsusevssevecddes 22

Erie R.R. v. Tompkins, 304 U.S. 64 (1938)............. 26

Gompers v. Bucks Stove & Range Co., 221 U.S. 418

Ds b6bmdbheehe dds deesdndsbeéscnesdestesndons passim

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

Hoffman v. Beer Drivers & Salesmen’s Union Local

No. 888, 536 F.2d 1268 (9th Cir. 1976)............. 15

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) ......... 25

International Union, UMWA v. Clinchfield Coal Co.,

12 Va. App. 123, 402 S.E.2d 899 (Va. App. 1991)

rev'd 244 Va. 463, 423 S.E.2d 899 (1992)....... passim

Juidice v. Vail; 430 U.S. 332 (1977)............00005. 25

Keegan v. Lawrence, 778 F. Supp. 523 (S.D. Fla.

UU 46 dese caddesnevetscosevedsevecdsicaveneseds 25

v

TABLE OF AUTHORITIES — Continued

Page(s)

Labor Relations Comm'n v. Fall River Educators

Assoc., 382 Mass. 465, 416 N.E.2d 1340 (Mass.

(RES ig SRR gp nO ENR ip SE eh 21

Latrobe Steel Co. v. United Steel Workers, 545 F.2d

ee he ike eos pee ed went 20

Madden v. Grain Elevator, Flour & Feed Mill Wkrs.,

etc., 334 F.2d 1014 (2d Cir. 1964), cert. denied, 379

el dbitcdetdbdpnderednededgdodsesues 29

McComb v. Jacksonville Paper Co., 336 U.S. 187

Ne a ee cnane 22

N.L.R.B. v. Blevins Popcorn Co., 659 F.2d 1173 (D.C.

FRE ns a ee oe ee 16

New York State National Organization for Women v.

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

ff RPT PTTTT TETT TTT TTL 8, 12, 17

NOW ov. Operation Rescue, 1993 U.S. Dist. LEXIS

Be Gs HI UN PE ccc cccccccccccceses 18, 21

GaP i a ee ey Be ie oo ccccccicescssnccss 25

Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S.

__, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991)....... 28

Penfield Co. v. SEC, 330 U.S. 585 (1947).............. 13

Roe v. Operation Rescue, 919 F.2d 857 (3d Cir. 1990) .... 17

Shakman v. Democratic Organization of Cook County,

533 F.2d 344 (7th Cir.), cert. denied, 427 US. 8

Di iliciicuneneedeGulvvdedunsescisuastanusesens 20

Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) .... 22

Shillitani v. United States, 384 U.S. 364 (1966)........ 13

vi

TABLE OF AUTHORITIES - Continued

Page(s)

Torres Irizarry v. Toro Goyco, 425 F. Supp. 366 (D.

I a 25

TXO Production Corp. v. Alliance Resources Corp.,

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

eiiedese eee hah Gua ihe ainda 11, 27, 29, 30

United States v. Darwin Const. Co., Inc., 873 F.2d

i os eahubabs vec 14

United States v. PATCO, 110 LRRM (BNA) 2858

EE RRR Ee pap yon ee 18

United States v. United Mine Workers, 330 U.S. 258

AER EARS a Es Pee al x ee See Rs oe passim

Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538

i eae eet hee aig sk eo 26

Whitfield v. Pennington, 832 F.2d 909 (5th Cir. 1987),

cert. denied, 487 U.S. 1205 (1988).................. 21

STATUTES

I La ih ree eo a 11

STATEMENT OF THE CASE

This case concerns the efforts of a trial court to

coerce, through the imposition of a prospective schedule

of contempt fines, union officials to cease and desist acts

of violence, intimidation and damage and to take affirma-

tive actions-to prevent union members and sympathizers

from engaging in such acts. The Union steadfastly

ignored the court’s attempt to stop the reign of terror and

violence, accumulating in the process an expensive total

of civil contempt fines.

1. The strike that gave rise to this action was called

on April 5, 1989, by the President of petitioner United

Mine Workers of America (“UMW” or the “Union”)

against two coal companies in southwestern Virginia.

When the companies tried to maintain operations, the

UMW announced that it would engage in “a new level of

creative militancy” against the companies. The Bureau of

National Affairs, Inc. “Daily Labor Report” No. 153, p.

A-11 (1990). The UMW later said that the strike was

against the entire state of Virginia.’

2. On April 12, 1989, the coal companies filed a

verified bill of complaint seeking to enjoin the Union

from engaging in certain unlawful activities. On April 13,

1989, after an evidentiary hearing, the trial court enjoined

the Union from engaging in certain violent, intimidating,

and damaging acts. (App. 118a-121a). On April 21, 1989,

the trial court amended and strengthened its injunction,

finding that, notwithstanding the initial injunction,

“serious incidents of mass picketing, roving picketing,

violence, threats, intimidation, and property destruction

have continued. .. . ” (App. 113a-116a).

The injunction not only prohibited the Union from

engaging in certain actions, it also required that Union

1 Clark v. International Union, UMWA, 752 F. Supp. 1291,

1294 n.4 (W.D. Va. 1990).

2

officials take certain affirmative steps to stop acts of vio-

lence and intimidation by Union members and sympa-

thizers. For example, the injunctive orders issued by the

trial court affirmatively directed the Union to place a

designated supervisor or captain at each picket site to

enforce the injunction; to make available the names of

strike supervisors to law enforcement officials; to report

to the court in writing all violations of the injunction; and

to use all lawful means reasonably available to ensure

compliance with the injunction. (App. 115a-116a, 120a).?

3. Despite these measures, wholesale violations of

the court’s injunction continued. The trial court ordered

the Union to show cause why it should not be held in

contempt. After the first contempt hearing, the trial court

found 72 separate violations of its injunction. (App. 109a).

The trial court imposed $642,000 in fines, $424,000 of

which were suspended. (App. 4a n.2; Bagw. App. 55-57).

Subsequently, the trial court vacated all of these initial

fines on the ground they were punitive, and hence

“criminal in nature,” because the Union was not given

the opportunity to avoid them once they were specified.

(App. 4a n:2).

After the first contempt hearing, the trial court also

established a prospective fine schedule designed to

coerce the Union to refrain from committing future viola-

tions of the injunction. The schedule provided for fines of

$100,000 for each violent violation and $20,000 for each

nonviolent violation. (App. 111a). When it established the

prospective fine schedule, the trial court made clear that

? References to the Appendix filed in this Court will be

made as “App. __.” In the Vir inia Supreme Court, the cases

were appealed by two separate record numbers and consisted of

three separate appendices. References to the record in the

appeal initiated by Bagwell will be by “Bagw. App. __.” Refer-

ences to the record in the appeal initiated by the UMW will be

by “UMW App. __.” References to documents in the Virginia

Court of Appeals’ Record certified to the Virginia Supreme

Court will be “C.A. App. __.”

—_

3

it was attempting to coerce the Union into complying

with its orders, and that the Union could avoid paying

any fines merely by complying with the court’s injunc-

tion:

[T]he union and its members are responsible for

how much money .. . is going to be paid, not

this Court, not the company, not anyone else. If

you go out and violate the law, you are taking

that action of your own free will and... you

will pay the consequences, because it is your

act.

I firmly believe that the fate of the union with

regard to these violations is in the hands of

those members and leadership that we have

seen here in court today. . . . I sincerely hope

that you will be able to conduct yourself in a

law abiding manner. .

(Bagw. App. 575, 579).

4. Notwithstanding the prospective fine schedule,

the Union continued to violate the injunction. “As time

passed, the violations increased in frequency and became

more violent.” Bagwell v. International Union, UMWA, 224

Va. 463, 476, 423 S.E.2d 349, 357 (1992) (App. 14a). (See

also UMW App. 544-45, 548-49, 581-82, 598-600, Bagw.

App. 1487-92, 1604-07, 1674.) The trial court found on the

record that the strike was “characterized by violence and

terrorism.” (Bagw. App. 3191).

For example, the record in this case demonstrates

that Union members frequently engaged in rock throw-

ing. (UMW App. 491-94, 518-19, 568-69). Union members

also placed “jackrocks” (iron spikes in the shape of a star

used to puncture tires) on area roads. (UMW App. 493-96,

509, 540-41, 567, 570, 576-78). Indeed, so bad were the

jackrock attacks that the state police had to use a “magnet

truck” daily to clear the roads of jackrocks, nails and

other tire-puncturing devices. (Bagw. App. 328). Jack-

rocks were also placed near the homes of company

employees where their children could step on them.

4

(Bagw. App. 1607). Strikers doused the face of a company

guard with acid. (UMW App. 581-82). Women whose

husbands worked for the coal companies were threatened

and attacked by strikers. (Bagw. App. 1492, 1487-91,

1604-07, 2710-12). Workers were pulled off the road,

threatened, and in some instances beaten, by strikers.

(UMW App. 544-45, 548-49, 610-21). There was repeated

gunfire. (UMW App. 490, 520, 590, 591-92, 607). And

smashed windshields and flattened tires became a way of

life for area residents. (Bagw. App. 436-38, 1146-47,

1173-74, 1535, 1538-40).

5. In trying to stop this reign of terror, the trial

court was forced to issue no fewer than eight separate

contempt orders against the Union. (See, e.g., App. 55a).

Prior to the entry of each contempt order, the Union was

served with a show cause order outlining specifically the

alleged contumacious conduct. (See, e.g., UMW App.

26-42, 66-73, 86-92). Discovery was utilized. Lengthy

hearings were held with respect to each contempt order.

The Union was represented by counsel, and the court

required that violations be proved by a strict standard.

(UMW App. 267; Bagw. App. 1943, 1947, 2914-16, 3188,

4172). The Union presented evidence and cross-examined

opposing witnesses. The court heard myriad witnesses,

reviewed hundreds of exhibits, and considered oral argu-

ment. The record of the proceedings is literally thousands

of pages.

6. Throughout the eight contempt proceedings, the

court imposed two types of fines. Civil compensatory

fines were assessed, payable to the coal companies, based

on the harm caused to them. Those fines are not at issue

here. The court also assessed coercive fines in accordance

with the prospective fine schedule.

The court repeatedly stated that the purpose of the

prospective fine schedule was to coerce the Union into

complying with the court’s orders. For example, after the

second contempt hearing, the trial court stated:

I don’t know how much money these defen-

dants are willing to pay before they will obey

5

the law. I hope [the fine schedule] will deter any

future violations.

(Bagw. App. 886). Over and over again, in the course of

the eight contempt hearings, the trial judge made clear

that the purpose of the fines assessed under the prospec-

tive fine schedule was to compel compliance, and that the

Union could avoid the prospective fines by complying

with the injunction:

The Court is convinced, as [it has] stated

numerous times, that this is a civil contempt

proceeding. The only way that any fines or any

penalties can be assessed is for the defendants

to fail to comply with the Court’s injunctive

orders and the laws of the Commonwealth of

Virginia as [they] are stated or . . . outlined in

the order. This is not punitive. It is compulsory.

It is designed to se compliance and there-

fore it is not criminal in nature but civil.

(UMW App. 222).

7. But the Union would not comply, and the fines

accumulated under the prospective fine schedule. All

together, over the course of seven additional contempt

hearings following the establishment of the fine schedule,

the trial court found hundreds of violations of the injunc-

tion, most of them violent. In total, the Union accumu-

lated over $64 million in fines.

8. After months of violence and terror, the Union

and the coal companies ultimately settled their labor

dispute and the strike ended. As part of the settlement of

the labor dispute, the parties moved the trial court to

vacate all fines. (UMW App. 163-66). After considering

the matter, the trial court agreed to vacate approximately

$12 million in compensatory civil fines (see Bagw. App.

2152, 3566, 4270, 4274) that were payable to the com-

panies for damage and harm caused by violations of the

injunction. (App. 48a).

The trial court refused to vacate, however, the

remaining $52 million in coercive civil fines that had been

assessed in accordance with the fine schedule and that

— 6

were payable to the Commonwealth of Virginia and the

two affected counties. In refusing to vacate these fines,

the trial judge emphasized yet again that the purpose of

these prospective fines had been to try to compel compli-

ance with the court’s orders:

The Court early on announced its purpose in

imposing prospective civil fines the payment of

which would only be required if it were shown

the defendants disobeyed the Court’s orders.

That purpose was to compel compliance with

the Court’s orders which were entered to protect

the rights of the plaintiffs and the public. The

fines were conditional and it was within the

defendants’ sole power to avoid payment of the

fines.

(App. 40a-41la).

The trial court appointed Special Commissioner John

Bagwell to collect the outstanding fines. (App. 51a-52a). °

9. The Union appealed the trial court’s contempt

orders and fines to the Virginia Court of Appeals. The

Union argued that the remaining fines were “criminal,”

not civil, and therefore were imposed without the full-

blown constitutional protections attending criminal pro-

ceedings. The Union also argued that the settlement of

the underlying labor dispute and litigation rendered the

fines moot.

The Court of Appeals treated the fines imposed in

accordance with the prospective fine schedule as “civil”

and found that “the [trial] court imposed the fines in

question to coerce compliance with its orders...” The

Court, therefore “conclude[d] that these fines were coer-

cive civil fines ... ” International Union, UMWA ov.

Clinchfield Coal Co., 12 Va. App. 123, 129, 402 S.E.2d 899,

903 (1991) (App. 3la-32a). The Court of Appeals also

found that the extent of the Union violence, lawlessness

and misconduct “reasonably required” fines of “consider-

able magnitude.” Id.

On the question of mootness, the Court of Appeals

found to be “eloquent” the decision in Clark v. Interna-

tional Union, UMWA, 752 F. Supp. 1291 (W.D.Va. 1990),

7

arising out of the same labor dispute as this case, holding

that, as a matter of federal law, the settlement of the under-

lying litigation does not necessarily moot civil contempt

fines imposed in a completed proceeding prior to settle-

ment. 12 Va. App. at 131, 402 S.E.2d at 904 (App. 34a).

However, the Virginia Court of Appeals concluded that

the question of whether the subsequent settlement

mooted the contempt fines was a matter of state law, and

that binding state precedent required it to hold that the

settlement of the underlying litigation mooted the coer-

cive civil contempt fines. 12 Va. App. at 132, 402 S.E.2d at

904 (App. 34a).

10. The Virginia Supreme Court reversed. Applying

this Court’s precedents in Gompers v. Bucks Stove & Range

Co., 221 U.S. 418 (1911), United States v. United Mine

Workers, 330 U.S. 258 (1947), and Hicks v. Feiock, 485 U.S.

624 (1988), the Virginia Supreme Court concluded that the

fines imposed in accordance with the prospective fine

schedule were “civil,” not criminal. In support of that

conclusion, the Virginia Supreme Court found that the

trial court’s clear, express, and often-repeated purpose in

establishing the fine schedule and imposing the fines was

to “coerce the Union into compliance with the court’s

injunction.” 244 Va. at 476-77, 423 S.E.2d at 357 (App.

14a-15a). The court also found that the Union “controlled

its own fate,” and under the fine schedule had the power

to avoid the specified fines merely by ceasing to violate

the trial court’s injunction. /d.

The Virginia Supreme Court rejected the Union's

argument that the fines were criminal merely because they

were imposed for violation of an injunction that prohibited

the doing of an act, rather than for violation of an injunc-

tion that affirmatively required the performance of an act. In

rejecting this argument the Court found that the coercive

nature of the fines imposed in this case and the Union's

ability to avoid the prospective fines by complying with

the court’s orders — hallmarks of “civil” fines —- did not in

any way depend on the prohibitory or mandatory nature

of the underlying injunction.

8

The Virginia Supreme Court also rejected the Union’s

argument that the settlement of the underlying labor

dispute and litigation required the trial court to vacate all

of the civil fines imposed against the Union. The Virginia

Supreme Court “agree[d] with the Court of Appeals that

‘whether civil contempt sanctions are mooted by subse-

quent settlements by the private parties to the litigation is

a matter of state law,’ ” and held as a matter of state law that

the fines in question were not moot. 244 Va. at 478, 423

S.E.2d at 358 (App. 16a) (emphasis added).

The Court also found, in light of the financial

strength of the UMW, the gravity of the harm caused by

the UMW’s wrongdoing, and the UMW’s scorn for the

rule of law, that the civil coercive fines were not excessive

and did not constitute an abuse of discretion. 244 Va. at

479-80, 423 S.E.2d at 359 (App. 18a-19a).

REASONS FOR DENYING THE WRIT

None of the questions presented by the petition for

certiorari in this case warrant review by this Court:

1. The primary question presented by the petition -

pertaining to the distinction between civil and criminal

contempt —- involves nothing more than a routine applica-

tion of well-settled law — Gompers v. Bucks Stove & Range

Co., 221 U.S. 418 (1911), United States v. United Mine

Workers, 330 U.S. 258 (1947), and Hicks v. Feiock, 485 U.S.

624 (1988) — to the facts of this case.

a. “The demarcation between civil and criminal

contempt is well-established” and not in need of clarifica-

tion. New York State National Organization for Women v.

Terry, 886 F.2d 1339, 1350 (2d Cir. 1989), cert. denied, 495

U.S. 947 (1990). This Court has held that the difference

between civil and criminal contempt depends “not [on]

the fact of punishment but rather [the] character and

purpose” of the sanction imposed. Gompers, 221 U.S. at 441

(emphasis added). With respect to purpose, a civil con-

tempt sanction is coercive in nature. As this Court held in

United Mine Workers, 330 U.S. at 303-04, a civil contempt

9

is designed to compel a recalcitrant party to obey the

court’s orders. In contrast, a criminal contempt sanction

is imposed primarily to punish the contemnor for dis-

obeying the court. Id. at 302-03. With respect to the char-

acter of the penalty imposed, criminal contempt imposes

a “determinate and unconditional” penalty, whereas a

civil coercive contempt sanction is “conditional,” in that

it gives the contemnor the chance to avoid the penalty by

complying with the court’s orders. Hicks, 485 U.S. at

632-33. See pp. 12-13, infra.

b. In a unanimous opinion, the Virginia Supreme

Court applied these well-settled principles with care in

this case. After reviewing the voluminous record, includ-

ing the eight separate contempt hearings, the Virginia

Supreme Court concluded that the fines imposed after the

first contempt hearing were properly vacated because

they were “determinate and unconditional,” and hence

they had been improperly imposed without the constitu-

tional safeguards that must accompany criminal con-

tempt. As to the subsequent fines remaining on appeal,

however, the Virginia Supreme Court held that they were

civil in nature because (i) they were imposed for the

express purpose of trying to force the Union to comply

with the court’s orders, and (ii) their character was “con-

ditional” inasmuch as they were imposed only after the

Union violated the prospective schedule of fines set up

by the court to deter additional violations. 244 Va. at

475-76, 423 S.E.2d at 356-57 (App. 12a-15a). Contrary to

petitioners’ protestations, the Virginia Supreme Court’s

decision on this issue is entirely consistent with Gompers

and Hicks.

c. Moreover, petitioners concede that the decision

below is consistent with the decisions of other lower

courts. It appears that every court to consider the issue

has held that fines imposed as a result a party’s violation

of a prospective fine schedule are civil within the mean-

ing of Gompers and Hicks if they are imposed to coerce the

party to comply with the court’s earlier orders. Because

there is no conflict on this issue, which is the only issue

10

genuinely presented by this case, certiorari should be

denied. See pp. 16-18, infra.

d. Petitioners attempt to recharacterize Gompers and

Hicks as setting forth a rigid rule that a contempt sanction

is criminal if it was imposed for violation of an order that

prohibited the contemnor from acting in a certain way, as

opposed to an order that required the contemnor to do an

affirmative act. This attempt is totally unavailing. See pp.

18-20, infra. ;

First, petitioners are wrong that Gompers and Hicks

established a mechanical test based on whether the

underlying injunction was “mandatory” or “prohibitory.”

On the contrary, in both cases, this Court recognized that

there is no rigid formula for distinguishing between civil

and criminal contempt.

Second, petitioners do not cite a single case from any

jurisdiction holding that Gompers or Hicks makes the so-

called “mandatory/prohibitory” distinction the sine qua

non of the difference between civil and criminal con-

tempt. The lack of any split of authority militates strongly

against granting certiorari on this question. See pp. 20-21,

infra.

Third, this Court has itself approved the use of civil

coercive sanctions in cases where the contemnor failed to

comply with a “prohibitory” order. See p. 22, infra.

Fourth, the effect of petitioners’ proposed recharac-

terization of Gompers and Hicks would be radical and

absurd. In petitioners’ new world, the mechanism of a

prospective fine schedule would be unworkable because

it could be applied only through the lengthy and cumber-

some criminal process that would occur solely after the

wrongdoing. Petitioners’ rigid rule would also lead to

absurd results, since petitioners’ mandatory /prohibitory

distinction would logically apply as well to adminis-

tratively or legislatively-imposed fines. Thus, in one fell

Swoop, petitioners’ new rule would call into question the

constitutionality of a host of statutory procedures for

imposition of administratively or legislatively-imposed

11

civil fines based on “prohibitory” laws. See pp. 22-23,

infra.

Fifth, even if there were merit to petitioners’ bright-

line rule, this case does not cleanly present the issue. The

trial court’s orders were partly prohibitory and partly

mandatory within the sense used by petitioners. Thus,

this case does not properly present even the issue that

petitioners attempt to inject into it. See pp. 23-24, infra.

2. The second question presented —- whether the

settlement of the underlying labor dispute renders moot

the civil contempt fines imposed by the trial court pay-

able to the Commonwealth of Virginia and two counties -

does not raise any substantial federal question. The effect

of a settlement on outstanding civil contempt fines is a

matter of state law with which the federal courts should

not interfere. But even if it were a federal question, the

decision of the Virginia Supreme Court on this issue

accords with analogous federal cases. See pp.

25-27, infra.

3. The final reason posited by the UMW for grant-

ing its writ is that civil coercive fines are somehow analo-

gous to punitive damages in tort law or civil forfeitures

under 21 U.S.C. § 881. Recent cases concerning allegedly

excessive punitive awards in tort trials involving minor

compensatory damages, and large forfeitures based on

offenses involving relatively small amounts of drugs, are

readily distinguishable from the fines at issue here. In

this case, the UMW faced prospective coercive fine sched-

ules which clearly indicated in advance the fines that

would be assessed. There was no surprise. There is, there-

fore, no reason to hold this petition pending disposition

of either TXO Production Corp. v. Alliance Resources Corp.,

No. 92-479, cert. granted, 61 L.W. 3400 (Nov. 30, 1992) or

Austin v. United States, No. 91-6073, cert. granted, 61 L.W.

3496 (Jan. 15, 1993).

Moreover, here the UMW fails to present any mean-

ingful argument that the fines imposed were excessive or

disproportionate in light of the relevant factors to be

considered in fixing coercive fines. United Mine Workers,

12

330 U.S. at 304. After treating the court's authority as a joke,

and the violation of court orders as a badge of honor, the

UMW now seeks to avoid the clear consequences of its

contumacious conduct by wrapping itself in the same “law”

which it so thoroughly reviled below. The trial court did not

abuse its discretion in assessing these prospective, coercive

fines. The fact that the fines reached high amounts is indica-

tive only of: (a) the unprecedented level of scorn with which

the UMW treated court orders and (b) the wealth of the

contemptuous party.

In addition: (1) though the Virginia Supreme Court

expressly held that the amounts of the fines in this case

were “not . . . excessive as a matter of law,” it did not

specifically address whether the Excessive Fines Clause

of the Eighth Amendment applies either to the States

generally or to court-imposed civil contempt fines in

particular; and (2) the Virginia Supreme Court's conclu-

sion that the fines are not “excessive as a matter of law”

is consistent with the broad proportionality principles

previously announced by this Court. Therefore, no fur-

ther review of the excessiveness issue is warrranted.

I. THE DISTINCTION BETWEEN CIVIL AND CRIMI-

NAL CONTEMPT IS “WELL SETTLED,” THE DECI-

SION BELOW IS CONSISTENT WITH THIS

COURT’S PRECEDENTS AND DOES NOT CON-

FLICT WITH ANY DECISION OF AN INFERIOR

FEDERAL COURT OR A STATE COURT OF LAST

RESORT.

A. The Distinction Between Civil Contempt and

Criminal Contempt is Well Settled.

“The demarcation between civil and criminal con-

tempt is well-established.” New York State National Orga-

nization for Women v. Terry, 886 F.2d 1339, 1350 (2d Cir.

1989), cert. denied, 495 U.S. 947 (1990). In Gompers, this

Court held that the difference between civil and criminal

contempt lies “not [in] the fact of punishment, but rather

[in the] character and purpose” of the contempt sanction.

13

221 U.S. at 441. The Court explained that a contempt

sanction is generally considered civil where its purpose is

either to remedy harm caused to the other party by the

contempt, or to coerce the recalcitrant party to obey the

Court’s orders. Id. at 442. See also United Mine Workers,

330 U.S. at 303-04. By contrast, the purpose of criminal

contempt is more exclusively “punitive,” 221 U.S. at 441,

and is generally divorced from any “coercive or reme-

dial” goal. Id. at 442.

More recently, in Hicks v. Feiock, 485 U.S. 624 (1988),

this Court elucidated the general principles of Gompers. In

Hicks, the Court explained that where the contempt pen-

alty imposed is “determinate and unconditional,” its pur-

pose is “ ‘solely and exclusively punitive in character,’ ”

and hence generally criminal in nature. Id. at 632-33. On

the other hand, where the contempt penalty is “condi-

tional,” in the sense that the contemnor ” ‘has it in his

power to avoid any penalty,’” and thus ” ‘carr[ies] the

keys of [its] prison in [its] own pockets,’ ” the purpose of

the contempt is more coercive, and hence civil, in nature.

Id. at 633 (citations omitted). See also Penfield Co. v. SEC,

330 U.S. 585 (1947); Shillitani v. United States, 384 U.S. 364

(1966).

Although “it may not always be easy to classify a

particular [sanction] as belonging to either” the civil or

criminal category, Gompers, 221 U.S. at 441, these “princi-

ples have been settled at least in their broad outlines for

many decades.” Hicks, 485 U.S. at 631; see also Terry, 886

F.2d at 1350.

Moreover, “[w]hen a State’s [contempt] proceedings

are involved, state law provides strong guidance about

whether or not the State is exercising its authority ‘in a

nonpunitive, noncriminal manner.’” Hicks, 485 U.S. at

631 (citation omitted). “[O]ne who challenges the State’s

classification of the relief imposed as ‘civil’ or ‘criminal’

[must] show ‘the clearest proof’ that it is not correct as a

matter of federal law.” Id. (emphasis added).

14

B. The Decision Below Correctly Applies the Prin-

ciples Set Forth in Gompers and Hicks.

The decision below correctly sets forth the governing

law of Gompers, United Mine Workers, and Hicks:

Contempts are classified as either “crimi-

nal” or “civil,” alihough each “ ‘may partake of

the characteristics’ of the other.°” Gompers v.

Bucks Stove & Range Co., 221 U.S. 418, 441 (1911).

“It is not the fact of punishment but rather its

character and purpose, that often serve to dis-

tinguish between the two classes of cases.” Id.

The punishment, whether fine or imprisonment,

is deemed to be criminal if it is determinate and

unconditional, and such penalties “may not be

imposed on someone who has not been afforded

the protections that the Constitution requires of

such criminal proceedings.” Hicks v. Feiock, 485

U.S. 624, 632-33 (1988). The punishment is

deemed to be civil if it is conditional and a

defendant can avoid such a penalty by compli-

ance with a court’s order. Id. at 633. Civil con-

tempt sanctions are either compensatory or

coercive. Compensatory, civil contempt sanc-

tions compensate a plaintiff for losses sustained

because a defendant disobeyed a court's order.

Coercive, civil contempt sanctions are imposed

to compel a recalcitrant defendant to comply

with a court’s order. See, e.g., United States v.

United Mine Workers, 330 U.S. 258, 303-04 (1947);

Gompers, 221 U.S. at 448; United States v. Darwin

Const. Co., Inc., 873 F.2d 750, 753-54 (4th Cir.

1989).

244 Va. at 475, 423 S.E.2d at 356 (App. 12a-13a).

After faithfully setting forth these well-settled princi-

ples, the Virginia Supreme Court then applied them with

great care. First, the Court noted that the fines imposed

by the trial court after the first contempt hearing were

properly vacated because they were, under the principles

set forth above, criminal in nature. These fines were

imposed based on the Union’s numerous injunction viola-

tions before the trial court set a prospective schedule of

15

fines for future violations. Because the Union had no real

opportunity to avoid these fines once they were

announced, the Virginia Supreme Court explained that

they were “determinate and unconditional” and thus fell

on the criminal side of the Gompers-Hicks line.

The remainder of the fines at issue on appeal were of

an entirely different sort —- those assessed for violation of

the prospective fine schedule established by the trial

court after the first contempt hearing. With respect to

these fines, after reviewing the voluminous record, the

Virginia Supreme Court made two important findings:

First, the trial judge had expressly and clearly stated that

he was “establish[ing] a prospective fine schedule in an

effort to coerce the Union into complying with the court’s

injunction.” 244 Va. at 476, 423 S.E.2d at 357 (App. 13a).

Second, the Court found, as the trial court had repeatedly

stated on the record, that the prospective fine schedule

gave the Union “the power to avoid imposition of [the]

fines” merely by complying with the Court’s outstanding

orders. Id. (App. 14a). Based on these determinations, the

Virginia Supreme Court concluded that these fines were

conditional within the meaning of Gompers and Hicks and

hence civil, not criminal, in nature.

This is a faithful, correct application of Gompers and

Hicks. Petitioners’ view that the fines imposed under the

fine schedule were punitive, and hence criminal, reflects

the mistaken assumption that the mere fact that the fines

imposed by the prospective schedule ultimately became

due transformed a prospective, coercive remedy into an

exclusively punitive criminal penalty. But that view has

been roundly rejected by the lower federal courts. For

example, in Hoffman v. Beer Drivers & Salesmen’s Union

Local No. 888, 536 F.2d 1268, 1273 (9th Cir. 1976), the court

held that the mere fact that a conditional contempt fine

ultimately becomes due does not make it punitive (and

hence criminal):

[I]nevitably, wherever a compliance fine is

assessed and an opportunity given to purge, the

failure to purge will bring about a due date. The

-™ T6

due date occurs because the actor has failed to

use the key to the jail which the court pro-

vided. .. . The occurrence of the due date does

not transform civil proceedings, whose sole aim

is to secure compliance, into a criminal proceed-

ing. Were it otherwise, compliance with laws or

orders could never be brought about by fines in

civil contempt proceedings. Always the final

order requiring payment will follow the act or

omission which constitutes the failure to purge.

See also N.L.R.B. v. Blevins Popcorn Co., 659 F.2d 1173, 1185

& n.74 (D.C. Cir. 1981); Brotherhood of Locomotive Firemen

and Engineers v. Bangor & Aroostook Railroad Co., 380 F.2d

570 (D.C. Cir.) cert. denied 387 U.S. 570 (1967).

In short, the Virginia Supreme Court’s application of

Gompers and Hicks to the specific facts of this case -

where the trial court imposed a prospective fine schedule

in order to coerce the Union into complying with the

court’s injunctions — is nothing more than a routine appli-

cation of the well-settled principles established by those

cases. And surely, petitioners cannot possibly establish by

“the clearest proof,” as Hicks requires, 485 U.S. at 631,

that the Virginia Supreme Court’s classification of the

fines as coercive and conditional is incorrect as a matter

of federal law.* Thus, there is no reason for further review

of this case.

C. The Decision Below Accords With the Unani-

mous View of Other Courts that Fines Imposed

Under a Prospective Fine Schedule Intended to

Coerce a Party to Comply with Outstanding

Court Orders are Civil in Nature.

As petitioners effectively concede, the Virginia

Supreme Court’s holding is in accord with the

3 It is wrong and unfair to describe the Virginia Supreme

Court’s decision, as petitioners have, as “singular in its disdain

for Gompers and Hicks as constitutional precedents of binding

force.” Pet. at 7.

17

overwhelming majority of courts that have considered

whether coercive fines imposed under a prospective fine

schedule are civil under the reasoning of Gompers and

Hicks.

For example, in a line of cases involving the efforts of

“Operation Rescue” to block access to abortion clinics,

three different United States Courts of Appeal have

recently held that fines assessed according to a prospec-

tive schedule intended to coerce a party from continuing

to take action prohibited by an injunction are “civil”

within the meaning of Gompers and Hicks. That is so,

these courts have rightly concluded, because such fines

are “entirely conditional and coercive,” and the offending

party has the opportunity to avoid them if it ceases

violating the court’s orders.

Thus, in reviewing the award against Operation Res-

cue for each subsequent daily violation of the triai .ourt’s

injunction, the Second Circuit held in New York State

National Organization for Women v. Terry:

[T]here is no doubt that the sanctions were

entirely conditional and coercive. .. . The pro-

spectively fixed penalties were plainly intended

to coerce compliance with the court’s order and

to preserve the parties then-existing legal rights

. Faced on May 5, 1988 with a choice

between compliance or non-compliance with the

district court’s order, defendants chose the latter

course.

... Thus, since the sanctions were imposed to

compel obedience to a court order they are civil

in nature.

886 F.2d at 1351 (emphasis added). This Court denied

certiorari. 495 U.S. 947 (1990).

Both the Third and the Ninth Circuits have likewise

held that fines imposed according to a prospective fine

schedule and intended to coerce compliance with the

court’s injunction against unlawful conduct are “civil”

within the meaning of Gompers and Hicks. Roe v. Operation

Rescue, 919 F.2d 857 (3d Cir. 1990); Aradia Women’s Health

18

Center v. Operation Rescue, 929 F.2d 530 (9th Cir. 1991). See

also NOW v. Operation Rescue, 1993 U.S. Dist. LEXIS 2972

(D.D.C. Mar. 15, 1993).

Similarly, in upholding fines imposed under a pro-

spective schedule against the former air traffic control-

lers’ union for its violation of an injunction against

continuing a strike, the United States District Court for

the District of Columbia concluded that the argument

that such fines were “punitive, rather than coercive, [was]

meritless.” United States v. PATCO, 110 LRRM 2858, 2864

(D.D.C. 1982) (emphasis added).

Finally, in a case involving the very same UMW

strike at issue in the present petition, the United States

District Court for the Western District of Virginia opined

that “fines assessed under a prospective fine schedule

issued in an effort to halt prohibited conduct certainly

appear to fall within the Supreme Court's definition of

civil contempt fines.” Clark v. International Union, UMWA,

752 F.Supp. 1291, 1297 n. 7 (W.D.Va. 1990).

Significantly, petitioners do not cite a case from any

jurisdiction that conflicts with these cases on the only

federal issue genuinely presented - whether fines

imposed under a prospective fine schedule to coerce a

defendant to cease violating a court order are civil within

the meaning of Gompers and Hicks. Petitioners’ failure to

identify any conflict on this issue militates strongly

against further review.

D. Gompers and Hicks Do Not Establish a Rigid,

Bright-Line Rule that a Contempt Sanction is

Criminal Merely Because it was Imposed for a

Violation of a “Prohibitory” Order.

The Virginia Supreme Court rejected petitioners’

argument that, despite the conditional, coercive nature of

the fines imposed on the union under the prospective fine

schedule, those fines were criminal merely because the

underlying injunction violated by the Union “pro-

hibit{ed] the doing of an act,” rather than required the

19

Union “to perform an affirmative act.” 244 Va. at 477, 423

S.E.2d at 357 (App. 15a). (Emphasis deleted).

According to petitioners, Gompers and Hicks establish

that whenever contempt fines are imposed for violation of

a “prohibitory” order — i.e., an order that prohibits the

defendant from taking certain action — rather than for

violation of a “mandatory” order — i.e., an order directing

the defendant to perform an affirmative act — the fines are

exclusively punitive, and hence criminal, in nature. Peti-

tioners claim that the lower courts are in revolt against

this rule, and that this Court should grant the petition for

certiorari in this case to bring the lower courts back in

line with Gompers and Hicks.

For several reasons, petitioners’ reliance on a rigid,

bright-line “prohibitory/mandatory” distinction is

unavailing.

First, neither Gompers nor Hicks makes the “prohib-

itory/mandatory” distinction the sine qua non of the dif-

ference between civil and criminal contempt. To be sure,

in Gompers, this Court stated that “[t]he 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 sound in principle, and generally,

if not universally, affords a test by which to determine the

character of the punishment.” 221 U.S. at 443 (emphasis

added). But that this distinction is “generally” sound, and

that it provides “a” test for distinguishing between civil

and criminal contempt, does not mean that it is the exclu-

sive, rigid, bright-line determinant of the difference.

This Court’s statement in Gompers must be under-

stood in the context in which it was made. The Court was

addressing the nature of imprisonment for a definite term

for violation of a prior order not to engage in certain

conduct. In that situation, the contempt is criminal

because there is generally nothing the defendant can do

to avoid the sanction, once announced; thus, the con-

tempt is more exclusively punitive in nature. The Gompers

Court was not, however, addressing the situation where,

20

by reason of a prospective sanctions schedule set up only after

finding that the defendant had violated a prohibitory order, the

defendant is afforded the opportunity to avoid the speci-

fied sanctions by ceasing its violation. In that situation,

where the defendant effectively “carrlies] the keys of

[his] prison in [his] own pockets,” Hicks, 485 U.S. at 633,

the fine schedule is more coercive than punitive, and

hence the contempt is more properly classified as civil.

Rather than setting up a mechanical formula,

Gompers and Hicks make clear that the ultimate inquiry in

deciding between civil and criminal contempt requires a

careful assessment of the “character and purpose” of the

contempt sanction imposed. Gompers, 221 U.S. at 441. See

also Hicks (“[T]he critical features [of the difference

between civil and criminal contempt] are the substance of

the proceeding and the character of the relief that the

proceeding will afford”). A prospective fine schedule is

no less coercive (and hence civil) because it seeks to

encourage the contemnor to refrain from prohibited

action rather than take required action. Plucked wholly

out of context and elevated to a formalistic, bright-line

rule, as petitioners use it, the “prohibitory /mandatory”

notion is indeed a “distinction without a difference.” 244

Va. at 477, 423 S.E. 2d at 357 (App. 15a).

Second, it is significant that petitioners do not iden-

tify a single case from any jurisdiction interpreting

Gompers and Hicks as establishing a bright-line rule based

on whether the underlying injunction was “mandatory”

or “prohibitory.” Rather, petitioners concede that lower

federal courts have held that the statements in Gompers

and Hicks relied on by petitioners were “not intended to

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

Workers, 545 F.2d 1336, 1343 n. 27 (3d Cir. 1976) (citing

Shakman v. Democratic Organization of Cook County, 533

F.2d 344 (7th Cir.), cert. denied, 427 U.S. 858 (1976)).

Indeed, innumerable decisions which have held that

fines imposed under a prospective schedule are generally

21

civil in nature involved injunctions that were “prohib-

itory” in character. And numerous other cases have rec-

ognized that a court may employ prospective civil fines

in a prohibitory setting. For example, the Fifth Circuit has

held:

A party may be held in contempt if he violates a

definite and specific court order requiring him

to perform or refrain from performing a particular

act or acts with knowledge of that order. The

civil contempt sanction is coercive rather than

punitive and is intended to force a recalcitrant

party to comply with a command of the court.

Whitfield v. Pennington, 832 F.2d 909, 913 (5th Cir. 1987),

cert. denied, 487 U.S. 1205 (1988) (emphasis added). See

also Clark, 752 F. Supp at 1297; Labor Relations Comm’n v.

Fall River Educators Assoc., 382 Mass. 465, 475-76, 416 N.E.

2d 1340, 1347 (Mass. 1981) (fine for civil contempt

imposed where judge announced a fine would be levied

for each day of illegal strike); NOW v. Operation Rescue,

1993 U.S. Dist. LEXIS 2972 (D.D.C. Mar. 15, 1993) (civil

contempt fine levied against violators of injunction for

bidding interference with medical facilities and providing

for fine for each violation).

Even the one case described by petitioners as a “lucid

and persuasive counter-example” (Pet. at 14) of the scores

of decisions that undermine their position - In re Con-

tempt of Dougherty, 429 Mich. 81, 413 N.W.2d 392 (Mich.

1987) — expressly recognizes that the mandatory /prohib-

itory dichotomy is not the bright-line determinant of the

difference between civil and criminal contempt:

However, the test for distinguishing

between refusing to do an act commanded,

which would permit a coercive remedy, and

doing an act forbidden, allowing only punish-

ment for the completed act of disobedience,

affords only a general test to determine the char-

acter of the punishment. The Supreme Court

itself recognized that this test was not “univer-

sal{].” See Gompers, supra.

413 N.W.2d at 398 (emphasis added).

22

The odd conclusion that petitioners draw from the

fact that virtually no decisions from any jurisdiction sup-

port their extreme reading of Gompers and Hicks is that

the lower courts are in mass revolt and that this Court

must stop the revolution. The more natural conclusion to

be drawn from the absence of support for petitioners’

position is that petitioners are overreading Gompers and

Hicks and that there is no revolution under way.

Third, this Court has itself approved civil coercive

sanctions assessed in cases where the contemnor failed to

comply with a prohibitory order. For example, in McComb

v. Jacksonville Paper Co., 336 U.S. 187 (1949), this Court

upheld civil remedies imposed on a company that had

been ordered to stop violating wage and hour laws. When

the company failed to comply, the Administrator brought

a contempt action and the court imposed financial sanc-

tions payable to affected, non-party employees. This

Court approved the remedial, civil sanctions. Id. at 193.

Similarly, in Sheet Metal Workers v. EEOC, 478 U.S. 421

(1986), this Court upheld the use of civil contempt sanc-

tions imposed against a union to coerce compliance with

a court order to cease all discrimination and enact certain

affirmative action programs. The Court approved the use

of the sanctions even though the underlying orders

mainly prohibited conduct.‘

Fourth, the effect of petitioners’ bright-line “manda-

tory/prohibitory” dichotomy would be radical and

absurd. If the mere fact that a contempt fine were

imposed for a party’s violation of a prohibitory injunction

was enough to make the fine criminal, then courts would

be deprived of one of the most effective means of secur-

ing compliance with their orders - namely, the setting of

a prospective fine schedule for continued violation of

4 In addition, in Department of Energy v. Ohio, 503 U.S. __.

118 L.Ed. 2d 255, 270 (1992), this Court cited with approval

several cases in which prospective civil coercive contempt fines

were used in the same manner as they were used here - to

secure compliance with a prohibitory injunction.

23

their prohibitory orders. In petitioners’ new world, a

prospective fine schedule would be unworkable in prac-

tice because the court would have to conduct a collateral

criminal proceeding to try to coerce compliance with its

orders. Nothing in Gompers or Hicks requires handicap-

ping the courts in that fashion.

In addition, there is no apparent principled justifica-

tion for limiting petitioners’ proposed rule to judicially-

imposed fines. If the difference between a civil and crimi-

nal fine lies in the nature of the underlying command that

it seeks to vindicate, why would not a legislatively-

imposed or administratively-imposed fine for prohibited

conduct also be considered “criminal”? For example,

under petitioners’ theory, why would not a fine imposed

by the Environmental Protection Agency for dumping

garbage in a manner prohibited by statute automatically

become a criminal fine, requiring full-blown criminal pro-

cedures? Or, why would not a financial sanction by the

Occupational Health and Safety Administration for a vio-

lation of its orders or regulations also be automatically

deemed criminal? For that matter, why would not all

parking fines automatically become criminal? Carried to

its logical conclusion, petitioners’ rigid “mandatory /pro-

hibitory” distinction would, in one fell swoop, invalidate

so many statutorily-authorized mechanisms for imposing

civil fines as to defy meaningful estimate.

Fifth, in any event, this case does not cleanly present

the “mandatory/prohibitory” issue. It is remarkable that

petitioners emphasize the alleged “mandatory /prohib-

itory” dichotomy without even mentioning that the

injunctive orders in this case sought not only to stop the

Union from violating the law, but also directed the Union

to take affirmative action to inform its members and sym-

pathizers to do likewise.

For example the injunctive orders issued by the trial

court directed the Union affirmatively to:

24

(1) place a designated supervisor or captain at each

picket site to enforce the injunction;

(2) make available the names of strike supervisors

to law enforcement authorities;

(3) report to the court in writing on all violations of

the injunction; and

(4) use all lawful means reasonably available to

them to ensure compliance with the injunction. (App.

115a-116a, 120a).

The Union failed to comply with any of these affir-

mative obligations.

The existence of these “affirmative” aspects to the

court’s injunction is important in two respects. First, it

undermines the usefulness of petitioners’ rigid dichot-

omy between “mandatory” and “prohibitory” injunctions

as a basis for determining whether a given contempt fine

is civil or criminal. For, as is the case here, had the Union

complied with the affirmative acts demanded by the

order, many, if not all, of the so-called prohibited acts of

contempt would not have occurred. Second, in any event,

the fact that the injunction in this case included both

“mandatory” and “prohibitory” directives renders this

case a poor vehicle for considering the appropriateness of

the bright-line rule that petitioners propose, since even if

petitioners prevailed on their legal theory it would not

necessarily result in reversal of the judgment.

. * .

in sum, all of the traditional considerations that

guide this Court’s exercise of discretion militate strongly

against review to consider whether petitioners’ mechani-

cal “mandatory/prohibitory” dichotomy requires a dif-

ferent result in this case.

25

Il. THE VIRGINIA SUPREME COURT’S DECISION

THAT THE SUBSEQUENT SETTLEMENT OF THE

UNDERLYING LITIGATION IN THIS CASE DID

NOT MOOT THE CIVIL CONTEMPT FINES PAY-

ABLE TO THE STATE AND COUNTIES IS A MAT-

TER OF STATE, NOT FEDERAL, LAW.

The Virginia Supreme Court held that state law, not

federal law, governed the question whether the settle-

ment of the underlying litigation in this case necessarily

mooted the civil contempt fines assessed under the pro-

spective fine schedule that were payable to the Common-

wealth of Virginia and the two affected counties. 244 Va.

at 478, 423 S.E.2d at 358 (App. 16a). That is correct;

therefore Question 2 is not an appropriate matter for

review by this Court.

Whether the settlement of civil litigation divests the

courts of the Commonwealth of the power to uphold civil

coercive fines which arose during the litigation raises no

issue of federal law. It has been widely recognized that

contempt orders issued by state courts are matters of

state law. Torres Irizerry v. Toro Goyco, 425 F. Supp. 366,

369 (D. Puerto Rico 1976) (the contended invalidity of a

contempt judgment issued by a court of the Common-

wealth of Puerto Rico involved matters concerning “the

power of [the courts of Puerto Rico] to punish for con-

tempt. They have been presented to the highest court of

the Commonwealth, which disposed of [the] conten-

tions”); Keegan v. Lawrence, 778 F. Supp. 523, 526 (S.D. Fla.

1991) (Florida law deemed applicable to state court civil

contempt proceedings).

This Court has also recognized that “[t]he contempt

power lies at the core of the administration of a State’s

judicial system. . . . [FJederal court interference with the

State’s contempt process is ‘an offense to the State's inter-

est.’. . . [Contempt] stands in aid of the authority of the

judicial system, so that its orders are not rendered nuga-

tory.” Juidice v. Vail, 430 U.S. 327, 335-336 & n. 12 (1977),

citing Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). See

also Orr v. Orr, 440 U.S. 268, 275 n. 5 (1979) (recognizing

26

that the survival of a state court contempt judgment

“depends upon the resolution of somewhat knotty state-

law problems.”)

Where the operation of a state’s contempt power runs

afoul of no federal statutory or constitutional provision,

the federal courts have no basis to intervene. Here,

whether vested civil contempt fines «+ ive settlement by

the parties raise only state-law policy uestions. Neither

Article III standing requirements nor due process con-

cerns are in any way meaningfully implicated by a state’s

decision to follow one rule or another on this issue.

Accordingly, whether the fines became moot is a state law

question that is not proper for review by this Court. For

the same reason, all of the cases cited by petitioners in

support of their view that the fines are moot are irrele-

vant. None of these cases involves the law of Virginia.

Where matters of state law are involved, as they are here,

it is well settled that the highest court of the state is the

final arbiter of that law. See Erie R.R. v. Tompkins, 304 U.S.

64, 78 (1938); Vandenbark v. Owens-Illinois Glass Co., 311

U.S. 538 (1941). The Supreme Court of Virginia has held

that the fines here were not mooted by the settlement of

the underlying litigation, and that decision is unaffected

by other courts’ rulings on this issue.

Even if, however, federal law governed the question

of whether the coercive civil fines survive settlement of

the underlying litigation, the decision below does not

warrant review by this Court. As the Virginia Supreme

Court correctly recognized, its decision, although resting

on state law, is not inconsistent with Gompers.

In Gompers, which involved a federal action, the

Supreme Court held that the settlement of the underlying

litigation mooted the civil plaintiffs’ claim for recovery of

compensatory, civil fines assessed against the defendant

union. But Gompers recognizes that the purpose of civil

contempt fines may be either “remedial” or “coercive.”

See 221 U.S. at 442. Where a civil contempt fine is purely

“remedial,” it is paid to the complainant. See id. at 441.

27

But a civil contempt fine may also be more purely “coer-

cive,” in which case it is paid to the court or to the state.

Gompers dealt only with whether a “compensatory” or

“remedial” civil fine — payable to the complaining party -

was mooted by reason of the settlement of the underlying

litigation. That obviously does not foreclose the survival

of fines payable to the court or the state.

There are plainly important and legitimate policy

reasons for a different rule for “coercive” civil fines pay-

able to the state. For, as the Virginia Supreme Court

correctly held (albeit as a matter of state law):

Courts . . . 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. If we

were to adopt the Union’s mootness contention,

any organization which faced coercive, con-

tempt fines would know that, in order to com-

pletely avoid payment of the fines, it only had

to postpone actual collection of the fines until

settlement of the underlying litigation.

244 Va. at 478, 423 S.E.2d at 358 (App. 17a). A rule that

allowed the party in contempt to moot coercive fines

payable to the court or the state would totally undermine

the effectiveness of civil contempt fines intended to coerce

a party to comply with the court’s legitimate orders.

Thus, even if the mootness question presented a ques-

tion of federal law, which it does not, the Virginia Supreme

Court’s decision is consistent with both logic and precedent.

Ill. THE VIRGINIA SUPREME COURT’S DECISION

THAT THE CONTEMPT FINES IN THIS CASE

DO NOT VIOLATE SUBSTANTIVE DUE PRO-

CESS DOES NOT WARRANT REVIEW BY THIS

COURT, NOR SHOULD THE PETITION BE HELD

FOR TXO PRODUCTION CORP. V. ALLIANCE

RESOURCES OR AUSTIN V. UNITED STATES.

The union argued below that the civil contempt fines

in this case are “so excessive that they violated

28

substantive due process and federal labor policy.” 244 Va.

at 479, 423 S.E.2d at 358 (App. 18a). The Virginia Supreme

Court held that the fines were “not . . . excessive as a

matter of law,” for the following reasons: (i) “the record

discloses that the Union committed more than 500 sepa-

rate violations of the trial court’s injunction[;]” (ii) the

fines are not excessive in light of “the magnitude of the

injunction violations|[;]” (iii) the fines are not excessive in

light of “the Union's vast financial resources[;]” and (iv)

the fines are not excessive in light of the fact that “the

Union never represented to the court that it regretted or

intended to cease its lawless action.” 244 Va. at 479-80,

423 S.E.2d at 358 (App. 18a-19a).

This holding presents no certworthy issues:

First, while the Virginia Supreme Court’s decision

expressly held that the fines in issue were not excessive,

the Court was not called upon to address the question of

whether the Excessive Fines Clause of the Eighth Amend-

ment applies either to the States generally or to court-

imposed civil contempt fines in particular. The decision

below addresses only the Union’s contention that the

fines “are so excessive that they violate substantive due

process and federal labor policy.” 244 Va. at 479, 423 S.E.2d

at 358 (App. 18a). The decision below, therefore, raises no

issue about the application of the Excessive Fines Clause

of the Eighth Amendment to the states or to court

imposed civil contempt fines.

Second, the Virginia Supreme Court’s conclusion that

the fines are not “excessive as a matter of law” is consis-

tent with the broad proportionality principles discussed

by this Court in cases such as Pacific Mutual Life Insurance

Co. v. Haslip, 499 U.S. __, 111 S. Ct. 1032, 113 L. Ed. 2d 1

(1991). The decision below holds that the fines imposed,

while “large,” are not disproportionate to the number of

violations committed by the Union; the magnitude of the

violations (most of which involved violence); and the

Union’s “vast financial resources.” 244 Va. at 480, 423

S.E.2d at 358 (App. 18a-19a). Moreover, the Virginia

Supreme Court found that the large fines are justified and

29

necessary in this case because “the Union never repre-

sented to the court that it regretted or intended to cease

its lawless actions.” Id. This analysis is thoroughly consis-

tent with the proportionality analysis approved in Haslip,

and, at most, presents an unremarkable application of

those principles.

Indeed, the fact that the sanctions imposed reached

high amounts is simply reflective of the unprecedented

level of scorn with which the strikers treated the injunc-

tions. See Madden v. Grain Elevator, Flour & Feed Mill Wkrs.,

etc., 334 F.2d 1014, 1022 (2d Cir. 1964), cert. denied, 379

U.S. 967 (1965).

Nor is there any reason to hold this petition pending

disposition of either TXO Production Corp. v. Alliance

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

(Nov. 30, 1992), or Austin v. United States, No. 91-6073,

cert. granted, 61 L.W. 3496 (Jan. 15, 1993). TXO involves

two particular questions that are not meaningful in this

case. First, TXO concerns what procedures are required,

in terms of jury instructions and post-trial and appellate

remittitur review, to confine unbridled jury discretion.

Obviously, those procedural questions have no genuine

relevance to contempt proceedings. Second, TXO con-

cerns the substantive limitations on jury awards adopted

by the Supreme Court of West Virginia, based on the

difference between “stupid” and “mean” defendants. The

legitimacy or utility of those substantive limitations have

no bearing on the question of how much money is reason-

ably required to achieve compliance by a recalcitrant

party.

Austin is similarly distant in its relevance to this case.

In Austin, the Court may decide whether the Excessive

Fines Clause of the Eighth Amendment applies to civil

forfeiture actions brought by the government. But the

decision below holds nothing about the application of the

Excessive Fines Clause. Rather, it addresses only (and

briefly) the Union’s challenge under “substantive due

process and federal labor policy.” 244 Va. at 479, 423

S.E.2d at 358 (App. 18a). Moreover, the proportionality

30

concerns applicable to civil forfeiture, which is designed

to punish the defendant for his wrongdoing, is not

directly relevant to the issue in this case - how much

money is reasonably necessary to make the Union comply

with court’s orders.

In addition, both TXO or Austin could not be control-

ling of this case for a more basic reason. Both of those

cases involve proportionality as it relates to punishment

for completed conduct. This case, by contrast, relates to the

amount of money that is necessary to coerce a defendant

to stop ongoing conduct. The difference, which is the same

difference that separates “civil” from “criminal” con-

tempt, is an important one. Similarly, what is propor-

tional as punishment in TXO and Austin has no

meaningful relationship to what is necessary to coerce

(rather than punish) a defendant into compliance with

court orders.

In sum, TXO and Austin have no real relevance to

what a court can do to achieve compliance with its

orders. Further review of the Union’s excessiveness claim

is, therefore, unwarranted.

CONCLUSION

For the foregoing reasons, the Petition for Certiorari

should be denied.

Respectfully submitted,

Wituiam B. Porr

(Counsel of Record)

CLINTON S. Morse

FRANK K. FRIEDMAN

Woops, Rocers & HAZLeGROVE

Dominion Tower, Suite 1400

10 South Jefferson Street

Post Office Box 14125

Roanoke, Virginia 24038-4125

(703) 983-7600

Counsel for Respondent

John L. Bagwell