Thought You Understood Contempt? Think Again

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The murky law of contempt — particularly the distinction between civil and criminal contempt — got even more confusing last month with the Court of Appeals’ decision in Tyll v. Berry. The court said that civil contempt may include a fine, not just imprisonment, and can require the fine to be paid to a private party, not to the state. All this is new and different from what we have been teaching about the law of contempt.

Civil vs. criminal contempt

Let’s start with a refresher on the difference between criminal and civil contempt. Criminal contempt is a sanction for one of the specified acts in G.S. 5A-11, the most common being refusal to obey a court order, disrespect to the court, and failing to follow court schedules. Criminal contempt is used when the contemptuous act has already occurred, is completed, and the court wants to punish the offender. The punishment generally is limited to a $500 fine and/or jail for up to 30 days.

Civil contempt, on the other hand, is intended not to punish the offender but to force the person to comply with a court order. The only act for which civil contempt may be applied is the ongoing violation of a court order and the only sanction, we thought, was for the person to be jailed until they complied. Every civil contempt order has to include a “purge” provision, that is, a clear statement as to what the person has to do to get out of jail. If the contempt was for failure to pay child support, for example, the purge would be to catch up on payments. If the contempt was for refusal to sign over a deed, the purge would be to sign the document.

Joey Berry’s civil contempt

Joey Berry was in contempt for violating a Chapter 50C no-contact order. The district court judge ordered that Berry be locked up for contempt until he purged the contempt by paying $2,500 to the Tylls. The order also said he would be fined an additional $2,500 for each future violation of the no-contact order, apparently for as long as the no-contact order remains in effect. Although the trial court did not specify whether it was using civil or criminal contempt, the Court of Appeals treated it as civil and concluded that the $2,500 fine was lawful.

Lawyers and trial judges often fail to articulate whether they are talking about criminal or civil contempt. One might have thought that Joey Berry was being found in criminal contempt. Civil contempt is supposed to be used to make someone comply with a court order, to do something they were already ordered to do but haven’t done yet; thus it does not really work when the order being enforced forbids the person from doing something. If someone is ordered to not contact someone else, how do you lock them up until they comply by not contacting that other person? If what the court really wants to do is punish the person for disobeying the order sometime in the past, that’s criminal contempt, not civil.

Nevertheless, the Court of Appeals concluded that the trial court was holding Berry in civil contempt. It did so because the Tylls had initiated the proceeding by filing a motion under the procedures of G.S. 5A-23, the civil contempt statutes; the judge’s findings recited the statutory conditions for civil contempt (order still enforceable, willful disobedience, etc.); the judge called the $2,500 payment a “purge”; and the transcript indicated the judge was struggling to find a way to get Berry to comply with the no-contact order.

“As for contempt”

The no-contact statute, G.S. 50C-10, says that a violation is punishable as contempt but does not say whether it’s criminal or civil. In deciding that it is civil, the Court of Appeals cited G.S. 5A-25 which says that “whenever the laws of North Carolina call for proceedings as for contempt, the proceedings are those for civil contempt. . . .” (emphasis added). It appears that the court took that statute to mean that whenever another statute fails to specify whether the contempt is civil or criminal then it is civil. The statute actually is narrower than that.

The key is the term “as for contempt.” Until contempt law was recodified as Chapter 5A in 1977, “as for contempt” was the term of art for civil contempt. In other words, before Chapter 5A was enacted, “contempt” or “for contempt” meant criminal contempt and “as for contempt” meant civil contempt. All that G.S. 5A-25 says is that if there is an old statute that still uses the term “as for contempt” it means civil contempt. But G.S. 50C-10 does not use the term “as for contempt,” it simply says that violation “is punishable as contempt of court,” so it is difficult to see how G.S. 5A-25 helps in construing its meaning.

Given the appellate court’s reading of G.S. 50C-10 and G.S. 5A-25, specifically its determination that “contempt” in G.S. 50C-10 means civil contempt, it appears that criminal contempt is no longer available to punish the violation of a no-contact order.

A fine for civil contempt

More surprisingly, once the Court of Appeals decided that Berry was being held in civil contempt it approved the imposition of the $2,500 fine as a sanction. The only sanction stated in the civil contempt statute, G.S. 5A-21(b), is that the person be “imprisoned as long as the contempt continues.” In approving the use of a fine against Berry, the Court of Appeals quoted several earlier appellate opinions — Jolly v. Wright, 300 N.C. 83 (1980); Oakley v. Oakley, 165 N.C. App. 859 (2004); Reece v. Reece, 58 N.C. App. 404 (1982); Bishop v. Bishop, 90 N.C. App. 499 (1988) — all of which refer to fines for civil contempt. In none of those cases, however, did the trial court actually impose a fine.

It looks, therefore, like Tyll v. Berry is the first instance of a North Carolina appellate court approving the actual imposition of a fine for civil contempt. We have been teaching judges that fines are not allowed, that a fine is punishment and is inconsistent with the purpose of civil contempt. We’ll now tell them they have another option.

The fine as a purge condition

The trial judge made payment of the $2,500 fine a purge condition. This does not fit with the idea that a purge condition has to be tied to the original order being enforced by contempt. That is, because the purpose of civil contempt is to force compliance with a court order, not punishment, a proper purge was thought to be something essential to the original order. For example, if a judge was jailing someone for civil contempt for not complying with an order to sign over a deed, the only appropriate purge condition would be to sign the deed, that’s the only act that would achieve compliance with the original order. Based on Tyll v. Berry it appears that a purge condition may be something independent of complying with the original order.

In allowing a purge condition that adds to the original court order the payment of a fine, the Court of Appeals notes that earlier decisions have allowed trial judges to add payments of attorney fees as a part of civil contempt. It is indeed correct that attorney fees have been approved as part of civil contempt in some categories of domestic cases, as an exception to the general rule that attorney fees are not allowed in contempt. Fees have been allowed in civil contempt proceedings for failure to pay child support or alimony or noncompliance with an equitable distribution order. The basis for allowing attorney fees in those kinds of cases generally has been that such fees can be awarded for the underlying action resulting in the order being enforced by contempt and, therefore, are appropriate for enforcement of the order as well. The fine allowed by Tyll v. Berry, though, does not appear to be linked to the original action in any way, apparently opening the door for a new category of sanctions.

Another unusual aspect of the $2,500 fine as a purge condition is that it continues indefinitely into the future, as long as the no-contact order is renewed. The “purge” might arise two years from now if the no-contact order has been renewed and Berry makes a prohibited contact. That sounds different than what we’ve thought a purge was.

A fine that doesn’t go to the schools

To distinguish cases holding that civil contempt may not include an award of costs or damages, the Court of Appeals made clear that the $2,500 represented a fine rather than compensation to the Tylls for any loss or injury they suffered or their costs. It is not obvious how that distinction fits under Article IX, § 7 of the State Constitution. That is the section requiring that the proceeds of all fines and forfeitures go to the public schools, and it’s been the subject of considerable litigation over the last several decades. In those cases the courts seem to have recognized a dichotomy between restitution and penalty. If the money is to be paid to a party and is intended to compensate them for a loss, it is restitution; otherwise it is a penalty and belongs to the schools.

What, though, about a “fine” that is specifically held not to be restitution, to not be for the purpose of compensating a party, but is paid to a private individual rather than to the state? This looks like a new animal and it will not be surprising to see school boards contend that the constitution requires the money to be paid to them.

Conclusion

All in all, then, Tyll v. Berry, is an intriguing and apparently groundbreaking decision. The case itself was remanded to district court because the judge failed to include a finding that Berry had the present ability to pay the $2,500. Regardless of what finally happens to Mr. Berry, though, the decision seems to create a new range of monetary penalties for civil contempt. Even though it appears criminal contempt will no longer be available for violations of no-contact orders, the new, expanded civil contempt option should be attractive to trial judges. If the judge had found Berry in criminal contempt for his past violation of the no-contact order, the maximum fine would have been $500 and the maximum imprisonment would have been 30 days. Instead, by using civil contempt, the judge was able to fine him $2,500 (and apparently more, if the judge had wanted) and have him imprisoned indefinitely until he paid — even though the sanction really is for a past violation of the no-contact order rather than ongoing disobedience.

(A summary of the law of contempt, not yet revised to account for Tyll v. Berry, can be found on the School of Government’s Judicial Authority and Administration website.)

Category: Procedure, Uncategorized | Tags: , ,

11 comments on “Thought You Understood Contempt? Think Again

  1. The term void for vagueness come to mind.

  2. Thank you for the review of my case.

    I am not an attorney therefore some of the legal issues that the N.C. COA created from their approximately 6 1/2 month study of my issues were not apparent.

    The concept that the COA voided criminal contempt is very interesting.

    Btw, the courts had to use civil contempt in this matter as NC law specifically forbids criminal contempt for communication…

    [The concept that a judge may lack authority to enforce every whim related to a 50C Order seems to be anathema to the N.C. Judiciary; the concept that strict scrutiny should be applied to fundamental rights notwithstanding.]

    From my pro se perspective, the COA was attempting to expand judicial privilege and power while avoiding any sort of accountability for judges (and ratifying entrenched Due Process violations in law and process).

    The matter is on appeal (partially to NCSU and partially to SCOTUS) – primarily pro se appeal (with appointed counsel only for the Contempt).

    -Joey Berry

    • NCGS section 5A-11(b) does not forbid criminal contempt for communication; it forbids criminal contempt for the CONTENT of the communication. If someone is ordered not to communicate and that person does communicate, then that person can be found in criminal contempt. If person A were ordered to say only nice things to person B then said something vile to person B, criminal contempt would not be allowed under the statute. (“No person may be held in contempt under this section on the basis of the content of any broadcast, publication, or other communication unless it presents a clear and present danger of an imminent and serious threat to the administration of criminal justice”)

      • Perhaps.

        I am uncertain how the hairs are split. It is clear that the General Assembly did not favor communication as a sole basis for criminal contempt…

        I don’t know how communication can be criminal contempt if the content can’t be considered while maintaining the strict scrutiny required for limitations of fundamental rights – such as free speech.

        Clearly. a broad limitation on communication is invalid on its face and inconsistent with section 5A-11(b) as you quoted; it appears that only a narrowly tailored exclusion could trigger legitimate valid criminal (or civil) contempt.

        I appreciate your attempt to clarify but I think the issue is a bit deeper.

  3. Update:

    8-20-2014

    The N.C. Supreme Court declined to review issues from the pro se Notice of Appeal and the PDR.

    [http://appellate.nccourts.org/petitions/p-08202014.pdf]

    I plan to add these issues (COA 13-512) to pending petition for Cert. for SCOTUS (COA 13-1137) or pursue a separate pro se appeal to the nation’s highest court.

    *I plan to introduce the need for appointment of counsel for all indigent defendants in civil contempt cases being required to comply with NC Law and prior SCOTUS decisions – given the removal of effectively all limitations on civil contempt by the COA in 13-512. In other words, all civil contempt defendants now potentially face fines over $500 or indefinite imprisonment (creating a requirement for appointed counsel).

  4. Update:

    2-4-15

    My timely pro se Petition for Certiorari (related to COA13-512 – Tyll v Berry) to the U.S. Supreme Court was returned by the Clerk. A subsequent timely pro se Motion to Accept Petition (as originally submitted) was rejected by the Clerk without filing; returning the Petition for Certiorari and ignoring the properly submitted motion without apparent authority under the Court Rules (but I’m pro se so what can I do…).

    It appears that the second 60 day extension will expire before I am able attempt another motion (of any sort) as my present resources are overwhelmed (as I had attempted to outline in the Motion to Accept Petition)…

    I will attempt to petition the U.S. Supreme Court to accept the originally submitted Petition for Certiorari once my resources allow but I doubt the court will allow review after technical expiration of time (and based on current experience, the clerk may not even allow a motion to be filed???).

    It is interesting how much resistance a petition alleging abuse of limited means defendants by established court processes has received even within our nation’s highest court.

    *The U.S. Supreme Court has already denied Certiorari review of the prior petition (related to COA 13-1137).

  5. Inquiry:

    How does the decision in Tyll v Berry impact appointed counsel?

    It seems to me that now N.C. Law requires appointed counsel for all Civil Contempt cases with indigent defendants. The removal of limitations on imprisonment term and fine amount clearly exceeds N.C. Gen. Stat. § 7A-451(a)(1).

    § 7A-451. Scope of entitlement.
    (a) An indigent person is entitled to services of counsel in the following actions and proceedings:
    (1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;

    Does this mean that all Contempt Hearings must now inquire into indigent status of a defendant prior to a hearing or just prior to entry of an order of Contempt? If the standard is “after a hearing”, then is the order stayed/vacated with an automatic appointment of counsel and retrial/continuance if a threshold is met?

  6. […] discussed in a June 2014 post on the School of Government’s Criminal Law Blog, the Tyll v. Berry decision appeared to break new […]

  7. So how would any of these things apply to a case on custody and visitation violation? Would defendant receive a or be appointed a lawyer? Would the plaintiff? Is the plaintiff still going pro se if the defendant is appointed a lawyer? If so, how is that fair on the behalf of plaintiff? And what would possible outcome be?

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