MODERN DISCUSSION OF A VENERABLE POWER:
CIVIL VERSUS CRIMINAL CONTEMPT AND
ITS ROLE IN CHILD SUPPORT
ENFORCEMENT: HICKS V.
FEIOCK
INTRODUCTION
In 1988 the United States Supreme Court in Hicks v. Feock,1 issued what might be considered a belated response to Judge Learned
Hand's request for a "simple and certain" test to distmgush between
civil and criminal contempt. 2 Someone not familiar with the mtricacies of legal contempt proceedings might consider the distinction between civil and criminal contempt a scholarly exercise of little
practical value. In reality, the distinction between civil and criminal
contempt determines what constitutional protections are afforded an
individual charged with contempt, 3 the rights of appeal, 4 and the nature of the sentence.5 The importance of the individual rights determined by the distinction would imply that courts have developed a
clear, useful test to insure that constitutional rights are protected in a
contempt proceeding. To this date, however, courts have had great
difficulty determining when a proceeding is for civil or criminal contempt.6 The Hicks case is the first modem attempt by the Supreme
Court to enunciate a useful test that courts can apply uniformly
In analyzing the Hicks decision, this Note traces the history of
the judicial contempt power in the United States and discusses the
difficulty courts have had in distinguishing civil from criminal contempt.7 This Note also examines individual rights in a civil contempt
hearing and the historical reasons for treating rights differently in
civil than criminal contempt.8 Finally, this Note considers the Hicks
decision and the social context in which it was made, and suggests a
method of curtailing abuses of the contempt power while still all. 108 S. Ct. 1423 (1988).
2.
McCann v. New York Stock Exchange, 80 F.2d 211, 214 (2d Cir. 1935) (over-
turning a contempt conviction because a fixed sentence was imposed and was improper
in a civil contempt proceeding).
3. Dobbs, Contempt of Court"A Survey, 56 CORNELL L. REV. 183, 235 (1971).
4. See znfra notes 84-87.
5.
H. KRAUSE, CHILD SUPPORT IN AMERICA 62 (1981) (quoting People v. Keener,
38 Colo. App. 198, -, 559 P.2d 243, 248 (1976)).
6. See znfra notes 41-72.
7. See infra notes 23-72.
8. See znfra notes 73-111.
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[Vol. 22
lowing its use in certain limited circumstances. 9
BACKGROUND
HISTORY OF CONTEMPT
The exercise of the contempt power is by no means a recent development. Contempt proceedings have been documented as early as
the 10th Century.' 0 The early contempt power, however, was not
used to enforce judicial orders." Rather, the power originated to
protect the sovereign rights of the monarch and was an integral part
of the divine right of kngs.12 The manner m which the contempt
13
power is exercised has also evolved considerably over the centuries.
The common law of contempt was first introduced to the law of
the United States via Blackstone's Commentarzes.14 Some scholars
have urged, however, and it was once argued to Congress, that the
case upon which Blackstone relied to find the contempt power was
not a published case, and therefore created no contempt power in the
common law.' 5 Following this challenge to the validity of the contempt power, Congress passed a bill very similar to the current federal contempt statute authorizing the federal courts to exercise
contempt powers to the extent necessary to control acts obstructing
justice. 16 The power of courts to punish for acts of contempt has become so widely recognized that it is considered an inherent power of
the judiciary. 17 The contempt power is now exercised by courts for
9.
See znfra notes 198-202.
R. GOLDFARB, THE CONTEPT POWER, 14 (1963).
11. Id. at 11.
12. Id. at 13.
13. Id. at 13. Following a felony conviction in 1631, the hapless defendant expressed Ins opinion of the proceedings by throwing a brickbat at the judge. Id. The
defendant was summarily punished for the contempt by having his hand cut off and
fixed to a gibbet. He was then hanged in the presence of the court. Id. at 15.
14. Id. at 19.
15. Id. at 21. Lawless, a Missouri attorney, was held in contempt by federal judge
James H. Peck for publishing an article critical of the judge's handling of a series of
cases in which Lawless had an interest. Lawless then persuaded Congress to institute
impeachment proceedings against Peck. After almost a year of hearings the judge was
narrowly acquitted by a 22 to 21 vote. It was during the course of these hearings that
the argument was made to Congress that there is no contempt power in the common
law. Shortly after this impeachment trial, the federal rule clarifying and restricting
the use of the summary contempt power was passed. Id.
16. Id.
17. In re Nevitt, 117 F 448, 455 (8th Cir. 1902) (holding that the presidential pardon power does not apply to actions for civil contempt). See also Young v. United
States ex rel. Vuitton Et Fils, S.A., 107 S. Ct. 2124, 2133 (1987) (prohibiting the appointment of private counsel to prosecute a contempt proceeding when the counsel represents the party who will benefit from enforcement of the order); Michaelson v. United
States, 266 U.S. 42, 65 (1924) (finding the Clayton Act's jury trial reqirement for certam contempts constitutional).
10.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
three purposes: (1) to punish an individual for violating an order of
the court or for interfering with judicial proceedings; (2) to coerce an
individual into complying with a court order; and (3) to provide damages to a party injured by the contemnor's acts in violation of an
order.' 8
Early Tests to Distinguish Civil and Crmznal Contempt
The common law contempt power consisted only of what is now
known as crininal contempt.19 Contempt was used under the common law to punish those who interfered with the business of the
king.20 Civil contempt developed within common law contempt as a
procedure for enforcing court orders. 2 ' Today contempt is viewed as
22
one body of law with two different procedures.
The United States Supreme Court first attempted to clarify the
distinction between civil and criminal contempt in 1904 in Bessette v.
W.B.Conkey Co. 23 In that first effort to illuminate the dividing line
between the two types of contempt, Justice Brewer remarked, in
what has become a classic understatement, that "[ilt may not be always easy to classify a particular act as belonging to either one of
these two classes. '24 His prediction has been borne out all too well.2
Perhaps part of the misunderstanding surrounding the distinction
arose out of the Bessette case itself where the Court discussed the
unique aspects of a contempt action:
A contempt proceeding is sus generzs. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished. Yet it may be
resorted to in civil as well as criminal actions,
and also inde26
pendently of any civil or criminal action.
The Bessette Court's language was not intended to say that the
distinction between the two types of contempt cannot be made or is
not important, but rather that because of the special characteristics
18.
19.
20.
21.
22.
United States v. United Mine Workers of America, 330 U.S. 258, 302-04 (1947).
R. GOLDFARB, supra note 10, at 50.
Id.
Id. at 50-51.
Id. at 51. In addition to the division between civil or criminal contempt, con-
tempts are also divided into the categories of "direct" or "indirect" contempt. See -zd.
at 67-77. Generally, direct contempts are those "committed in the presence of the
court, or so near the court as to interrupt its proceedings." BLACK'S LAW DICrIONARY
413 (5th ed. 1979). All other contempts are considered indirect. R. GOLDFARB, supra
note 10, at 69.
23. 194 U.S. 324, 324-25 (1904) (holding that there is a right of review for a nonparty to a civil suit and that the right is properly exercised by a writ of error).
24. Id. at 329.
25. McCann v. New York Stock Exchange, 80 F.2d 211, 214 (2d Cir. 1985).
26. Bessette, 194 U.S. at 326.
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of contempt proceedings, there are instances where special considerations must be applied.27 An individual may be held in civil contempt
for acts arising out of a criminal case, or may be held in criminal contempt for disrupting a civil proceeding. 28 The Court was emphasizing
how difficult it can be to distinguish civil from criminal contempt.
The Court went on to attempt to clarify the distinction using language from a 1902 decision of the United States Court of Appeals for
the Eighth Circuit. 29 According to the Bessette Court the difference
between civil and criminal contempt involves the interest sought to
be protected and whether a private party or the dignity of the court
is to benefit from the sanction.3 0 The Court explained that punishment until a party complies with a court order resembles an execution enforcing an order and therefore indicates a civil action.3 ' The
Bessette test itself was composed of two elements. First, whether the
order was for the benefit of a private party or the court, and second,
whether the sentence was imposed only until the contemnor complied with the order. 32
The first case following Bessette to address the distinction between civil and criminal contempt was Gompers v. Bucks Stove &
Range Co. 33 Samuel Gompers and other officials of the American
Federation of Labor ("AFL") were involved in a dispute with the
Bucks Stove and Range Company over the hours of labor required
each week.3 4 The AFL declared a boycott of all Buck's products and
named Bucks Stove and Range Company on'an "unfair" and "we
35
don't patronize" list in the Amercan Federationst.
The Bucks
company sued the AFL alleging a conspiracy to interfere with interstate commerce and the umon was enjoined from boycotting or publishing more statements about Bucks Stove & Range.3 6 Before the
appeal could be heard the union officials were held in contempt for
37
violations of the injunction and sentenced to fixed prison terms.
The United States Supreme Court reversed the contempt convictions, finding that the proceeding below was a civil contempt hearing
and the fixed-term sentences were therefore improper.38 In over27. Dobbs, Contempt of Court" A Survey, 56 CoRNELL L. REV. 183, 235 (1971).
28. Id. at 237.
29. Bessette, 194 U.S. at 327-28. See, e.g., Nevitt, 117 F at 458.
30. Bessette, 194 U.S. at 328.
31. Id.
32. Id. at 329.
33. 221 U.S. 418 (1911).
34. Id. at 420.
35. Id.
36. Id. at 420-22.
37. Id. at 424-25. Frank Morrison was sentenced to six months, John Mitchell to
nine months, and Samuel Gompers to twelve months in jail for the contempt. Id.
38. Id. at 451-52.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
turning the convictions the Court also considered the fact that the
underlying case had been settled. 39 Discussing the distinction between civil and criminal contempt proceedings, the Gompers Court
stated:
[i]t is not the fact of punishment but rather its character and
purpose that often serve to distinguish between 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 crimial contempt the40sentence is punitive, to vindicate
the authority of the court.
Lower federal courts, as well as various state courts, have had great
difficulty interpreting this explanation, particularly in determining
which language in the description is to supply the test.41 Some courts
have focused on the character of the punishment as the test. 42 A
court focusing on the character of the punishment makes a determination based on all aspects of the hearing to decide whether the proceeding is more like a civil or a criminal proceeding. 43 In the case of
Lamb v. Cramer44 the Court held the proceeding must have been
civil because the acts for which the contemnor was being punished
45
arose out of the underlying proceeding, which was a civil action.
Attempts to use the character test are likely to fail because the "nature of the underlying suit does not necessarily determine the nature
46
of the contempt."
The most significant test used to separate civil from criminal
contempt focuses on the purpose of the pumshment.4 7 When a court
uses the purpose of the punishment as a method to determine
whether a contempt action is civil or criminal the court determines
why a sentence is being imposed. 48 If the sentence is intended to
"punish," the hearing is for criminal contempt.49 If a sentence is intended to coerce, or to supply damages to an injured party, it is "remedial," and the hearing is one for civil contempt.50 The difficulty in
applying the purpose test comes from the fact that every sentence,
39. Id.
40. Id. at 441.
41. R. GOLDFARB, supra note 10, at 66.
42. Penfield Co. v. SEC, 330 U.S. 585, 590 (1947). See also Lamb v. Cramer, 285
U.S. 217, 220 (1932) (holding that parties to the original action can appeal a cAvil contempt order without appealing the underlying order).
43. Dobbs, 56 CoRNELL L. REv. at 239.
44. 285 U.S. 217, 220 (1932).
45. Id.
46.
47.
48.
H. KRAUSE, CHILD SUPPORT IN AMERICA 62 (1981).
In re Grand Jury Investigation, 610 F.2d 202, 212 (5th Cir. 1980).
United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980).
49.
50.
Id.
Id.
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whether designed to be primarily punitive or remedial, will also have
incidental effects.-5 In other words, any punitive sentence will have
remedial features and a sentence designed to be primarily remedial
will have punitive aspects.5 2 These incidental effects can obscure the
primary purpose of the sentence and make application of the purpose
test difficult. 53
In addition to suggesting "character" and "purpose" as tests to
distinguish civil from criminal contempt, the Gompers case went on
to suggest more distinguishing features. The Gompers Court stated
that "[tihe distinction between refusing to do an act commanded,remedied by imprisonment until the party performs the required act;
and doing an act forbidden,-pumshed by imprisonment for a definite
term
generally
affords a test. ' 54 This reinforces the "purpose"
test, but focuses on the sentence imposed. Thus, if a party has already done a forbidden act, and is punished by a fixed sentence
(either fine or imprisonment) the hearing is for criminal contempt.55
Where the court is attempting by use of an indefinite sentence
(either fine or imprisonment) to force the performance of an act then
56
the proceeding is one for civil contempt
The Gompers Court then identified another important difference
between civil and criminal contempt as being whether the dispute involves the original parties or is between the state and the contemnor. 57 This test would determine the nature of the proceeding solely
58
by the identity of the parties.
Lower federal courts, state courts, and attorneys have had great
difficulty identifying, much less applying, any of these tests to distmguish between civil and crimnal contempt 5 9 As a result, a multitude
of tests have been applied to the problem.6 0 In addition to the "character" and "purpose" tests described above, frequently used tests in51. Gompers, 221 U.S. at 443.
52. Id.
53. R. GOLDFARB, supra note 10, at 57 (discussing the difficulties of applying the
Gompers tests).
54. Gompers, 221 U.S. at 443.
55. Id.
56. Id.
57. Id. at 444-45.
58. Id.
59. McCann, 80 F.2d at 214; R. GOLDFARB, supra note 10, at 67. The Supreme
Court case of Shillitam v. United States, 384 U.S. 364 (1966), illustrates the rampant
confusion surrounding this topic. In Shillitans, the Court pointed out that all parties
addressed their briefs to the procedures in criminal contempt proceedings even though
the Supreme Court found the proceedings to be for civil contempt. Id. at 369. The
Court included a portion of the record below in its decision to show that the district
judge had considered the proceedings civil even though he referred to the conduct as
criminal contempt. Id.
60. Dobbs, 56 CORNELL L. REV. at 239.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
clude whether a private party or the state commenced the
proceeding,6 1 and whether an individual or the dignity of the court is
to benefit from the contempt proceeding. 62 Formalistic tests have examined how the proceedings were titled, whether costs were requested, whether the parties testified, as well as who conducted the
proceedings to determine the nature of the contempt action. 6 3 One
test even suggested simplistically that the procedures actually applied
should determine what kind of a proceeding was held. 64 In other
words, if criminal due process guarantees were applied, it was a criminal contempt proceeding; if they were not, the proceeding was civil65
no matter what the pumshment.
There is even a split among federal circuits over whether it is
necessary to always make a distinction. 66 The Sixth Circuit finds no
prejudice to the contemnor if a court fails to specify whether it is acting in civil or criminal contempt. 67 The Fifth Circuit, however, holds
that reversal is required if the record does not demonstrate whether
the action was civil or criminal. 68 The Ninth Circuit merely cautions
that a sanction "could be invalidated if the district court's confusion
' ' 69
resulted in prejudice to the contemnor.
Although there is a great deal of confusion among courts on the
proper test to distinguish civil from criminal contempt, one rule
seems to be generally accepted. This one widely used rule illustrates
the confusion on this topic: the designation by the court tryzng the
contempt of whether the proceeding is for civil or criminal contempt
is not dispositive, and in fact, is usually a minor consideration on
70
appeal.
61. Id. See also Wright, Byrne, Haakh, Westbrook & Wheat, Civil and Crzmnal
Contempts in the Federal Courts, 17 F.R.D. 167, 172 [hereinafter Wright] (discussing
civil and crimnal contempt m the federal court system); McNeil v. United States, 236
F.2d (1st Cir.), cert demed, 352 U.S. 912 (1956) (holding that a civil contempt proceedng may be initiated only by the parties involved).
62. R. GOLDFARB, supra note 10, at 66-67.
63. McCann, 80 F.2d at 214.
64. Dobbs, 56 CoRNELL L. REV. at 245-46.
65. Id.
66. See znfra notes 66-69.
67. In re Jaques, 761 F.2d 302, 306 (6th Cir. 1985).
68. Skinner v. White, 505 F.2d 685, 689-90 (5th Cir. 1974) (reversing a contempt
conviction where it was impossible to determine whether the proceeding was for civil
or criminal contempt).
69. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 777 n.1 (9th Cir.
1983).
70. Shillitan, 384 U.S. at 369 (emphasis added). The Supreme Court said, "Itihe
fact that both the District Court and the Court of Appeals called petitioners' conduct
'crimnal contempt' does not disturb our conclusion." Id. The Sixth Circuit stated m
Jaques, 761 F.2d at 305, that "because of the frequency with which the two forms of
contempt are confused, a lower court's characterization of its proceedings is but one
factor to consider in determining their true nature." Id. The Third Circuit agreed,
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The attempts to classify contempt proceedings have been viewed
as "an ad hoc kind of accounting
compos[ing] only the most casual
and intellectually unsatisfying link with any body of law or legal
''72
principles,"'71 and described as "shrouded in hopeless confusion.
The Hicks case is the latest attempt of the Supreme Court to end this
plethora of confusion.
Results of a DeterminationThat a Hearng is for Civil Rather than
Cnminal Contempt.
Courts struggle to determine whether a proceeding is for civil or
criminal contempt because that single determination controls all further procedures in the hearing. 73 Criminal hearings require different
due process protections than civil actions.74 Therefore, the determination of whether a court is hearing a civil or criminal contempt
charge controls what procedures are followed and what due process
75
If
guarantees are afforded the individual in a contempt hearing.
the proceeding is for criminal contempt, virtually all safeguards afforded other criminal defendants apply. 76 In addition to placing the
burden of proving the contempt beyond a reasonable doubt on the
party urging the contempt, 77 these protections include the guarantee
against self-incrimination and the protection against double jeopardy.78 These protections are not available in a proceeding for civil
contempt. 79 Other results of the determination include: crimial
contempt is pardonable while civil contempt is not;8 0 an accused
stating in Latrobe Steel Co. v. United Steelworkers of America, 545 F.2d 1336, 1342
(3rd Cir. 1976), that "[although Judge Scalera denominated the contempt order as
'civil contempt,' the cases admonish us to ascertain independently the nature of the decree instead of treating the district court's mere characterization or label as dispositive." Id. And the Fourth Circuit stated succinctly in Carbon Fuel Co. v. United Mine
Workers of America, 517 F.2d 1348, 1350 (4th Cir. 1975), that"[w]e consider of no moment that the proceedings were begun and designated as a civil contempt proceeding."
Id.
71. R. GOLDFARB, supra note 10, at 67.
72. H. KRAUSE, supra note 46, at 62.
73. R. GOLDFARB, supra note 10, at 48.
74. J. NOWAK, R. ROTUNDA, J. YOUNG, CoNsTrrUiONAL LAw § 13.9, at 493 n.1 (3d
ed. 1986).
75. Id.
76. Dobbs, 56 CORNELL L. REV. at 241-42.
77. Hicks v. Feiock, 108 S. Ct. 1423, 1432-33 (1988).
78. Dobbs, 56 CORNELL L. REV. at 242-43. But see McNeil, 236 F.2d at 152. Mcheil
has been cited by one authority as standing for the proposition that double jeopardy
would not apply. Lance, Use of Contempt zn Child Support Enforcement, in IMpROviNG CHILD SUPPORT PRACTICE 11-24 (1986). The McNeil court, however, merely held
that the contemnor was not sentenced twice; that the judge had only restated the previous sentences and therefore the issue of double jeopardy was not involved.
79. Dobbs, 56 CORNELL L. REV. at 242-43.
80. R. GOLDFARB, supra note 10, at 48. See also Nevitt, 117 F at 459-60.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
criminal contemnor is protected by a presumption of innocence not
applicable to a contemnor in a civil proceeding; 8 ' willfulness is an element of criminal but not civil contempt;8 2 and a judge may withhold
all punishment in a criminal contempt proceeding while some sanc83
tion is mandatory in a civil contempt proceeding.
Further, the determination of civil versus criminal contempt controls the method of appeal.8 4 The type of contempt proceeding also
determines whether an appeal may be taken,8 5 who may appeal, and
at what point in the proceeding the appeal may be taken.86 Whether
the contempt sanction can survive the underlying order in the principle action is also controlled by determining if the proceeding is for
civil or criminal contempt.8 7
Due process in a civil contempt proceeding requires only that the
88
The
alleged contemnor be given some sort of notice and hearing.
required level of proof of contempt in a civil proceeding is only by
"clear and convincing" evidence;8 9 the contemnor has no right to a
jury trial no matter how long the imprisonment nor how great the
fine; 90 there is no universal right to appointed counsel; 9 1 and the contemnor carries the burden of proof when alleging the defense of present inability to comply with the order.92
81.
WRIGHT, 17 F.R.D. at 174.
82. Asay, 614 F.2d at 660. Sometimes courts refer to willfulness as an element of
civil contempt, but this is a confusion of willfulness and ability to comply. Dobbs, 56
CORNELL L. REV. at 261. Because civil contempt is used to enforce an earlier order
that has not been complied with, the contemnor's state of mind is not relevant; only
the fact that the act has not been performed. Id. Lack of ability to perform the act,
however, is a valid defense m civil contempt. Id. (emphasis added). What a court
means when it finds "willfulness" in a civil contempt proceeding is that the contemnor
had the physical or financial ability to comply with the order, but has not done so. Id.
Lack of ability to comply, however, will not be a valid defense where the contemnor
has created the inability to comply; for example, by donating all his money to charity
or physically destroying it. Asay, 614 F.2d at 660; see also McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949) (finding that the absence of willfulness will not prevent a conviction for civil contempt).
83. WRIGHT, 17 F.R.D. at 175-76.
84. J. FRIEDENTHAL, M. KANE & A. MILLER, CIVIL PROCEDURE 717 (1985).
85. Id. at 589 n.15.
86. Grand Jury Investigation, 610 F.2d at 224 (Kravitch, J., dissenting). In a civil
contempt case, however, while a party to the action may not appeal the conviction until the underlying case is completed, a nonparty found to be in civil contempt may pursue an appeal prior to a final judgment in the underlying action. Id.
87. WRIGHT, 17 F.R.D. at 177.
88. Dobbs, 56 CORNELL L. REv. at 243.
89. WRIGHT, 17 F.R.D. at 174-75.
90. Douglass v. First Nat'l. Realty Corp., 543 F.2d 894, 897 (D.C. Cir. 1976) (finding
a jury trial necessary prior to imposing a determinate fine of more than $500.00, unless
the right to a jury trial is waived by the defendant).
91. Mascolo, ProceduralDue Process and the Right to Appoznted Counsel in Civil
Contempt Proceedings,5 W NEW ENG. L. REV. 601, 622 (1983).
92. United States v. Rylander, 460 U.S. 752, 755 (1983) (holding that the assertion
CREIGHTON LAW REVIEW
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Perhaps the most significant difference between the two types of
proceedings is the length of sentence that can be imposed.93 Pumshment for criminal contempt, which is considered a criminal act just
like any other,94 is governed by the same statutory provisions that
limit the punishment for similar crimes-generally misdemeanors. 95
An imprisonment for civil contempt, however, is subject to no statutory limits except in some special, limited circumstances. 9 6 Once a
sentence for civil contempt has been imposed, the only way an imprisoned civil contemnor may obtain release without complying with
the court's order is to remain imprisoned long enough to demonstrate
97
that no amount of imprisonment will coerce the desired behavior.
The determination of when the imprisonment is no longer coercive,
however, rests solely within the discretion of the sentencing trial
98
court.
HistorcalJustificationsfor ProceduralDifferences Between Civil
and Crmnal Contempt.
Several different theories have been advanced for the lesser due
process protections in civil proceedings. Justice Harlan, concurring
in In Re Winshp,99 advanced a theory of social utility to justify the
difference in the burden of proof requirements between civil and
criminal proceedings. According to Justice Harlan,
of the fifth amendment right against self-incrimination will not substitute for evidence
sufficient to meet defendant's burden of production regarding inability to comply).
93. Dobbs, 56 CORNELL L. REV. at 267. In a nonsummary criminal contempt proceeding in a federal court, the maximum punishment is six months imprisonment and/
or a $1,000 fine if that fine is paid to the court. 18 U.S.C. § 402 (1982) provides in part:
[B]ut in no case shall the fine to be paid to the United States exceed, in case
the accused is a natural person, the sum of $1,000, nor shall such imprisonment exceed the term of six months.
Id. Similarly, most states have statutory limits on the penalties that can be imposed on
contemnors in criminal proceedings. Dobbs, 56 CORNELL L. REV. at 268. However,
courts have no such limits on their sentencing power in civil contempt. Id.
94. Jaques, 761 F.2d at 309. See also Bloom v. Illinois, 391 U.S. 194, 201 (1968)
(stating that "convictions for crimnal contempt are indistinguishable from ordinary
crninal convictions").
95. E. Lance, supra note 78, at 11-19.
96. Dobbs, 56 CORNELL L. REV. at 267. A statutory limit is placed on sentences
for civil contempt in some special circumstances. For example, 28 U.S.C. § 1826 (1970)
sets a maximum of 18 months in prison in order to coerce testimony before a grand
jury.
97. United States v. Jenkins, 760 F.2d 736, 740 (7th Cir. 1985) (finding that once
the contemnor's past ability to comply with the order is shown, the contemnor bears
the burden of proving that ability no longer exists).
98. In re Crededio, 759 F.2d 589, 591 (7th Cir. 1985). The court noted that "[t]he
district court's conclusion in this regard is 'virtually unreviewable.'" Id. (citation
omitted).
99. 397 U.S. 358, 368 (1970) (holding that proof beyond a reasonable doubt is an
essential element of due process necessary in all criminal prosecutions).
1988]
CIVIL VERSES CRIMINAL CONTEMPT
[i]n a civil suit between two private parties... we view it as
no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.... In a criminal case, on
the other hand, we do not view the social disutility of convictmg an innocent man as equivalent to the disutility of acquitting someone who is guilty.'L0
A civil contempt sanction is intended to enforce the rights, established by a previous judicial order, between private individuals.' 0 ' To
allow a complete new hearing, with full criminal protections afforded
the contemnor, would be unfair to the prevailing party in the previous action-in effect holding the plaintiff to a criminal burden of
02
proof to obtain the desired civil relief.'
Another justification for the diminished procedural protections
in civil contempt is a legal cliche: in civil contempt the contemnor is
03
considered to be carrying the keys to his prison in his own pocket.'
The contemnor's "ability to secure his freedom at any tne eliminates the necessity for the elaborate and costly proceedings involved
in a criminal jury trial."'10 4 This widely-used theory reasons that
since a civil contempt sentence is primarily coercive in nature, the
contemnor himself is at all times in control of his punishment and
need not be punished at all if he is willing to comply with the court's
order. 0 5 Coercive sentences, in fact, are designed to insure an individual cannot successfully defy a court's order by merely suffering a
106
fixed punishment.
100. Id. at 371-72 (Harlan, J., concurring).
101. Nevitt, 117 F at 458.
102. Comment, The Coercive Function of Civil Contempt, 33 U. CHI. L. REV. 120,
125-26 (1965).
103. Nevitt, 117 F at 461.
104. H. KRAUSE, supra note 46, at 69.
105. Shillitans, 384 U.S. at 368-71. Not all states observe the conditional nature of
a civil contempt sentence. Iowa has determined that "A
sentence of incarceration,
based upon a willful contempt in not paying past installments of child support provided in a valid decree, shown by clear and convincing evidence, may stand despite a
jail-door offer of payment or even present inability of the contemner, through mdigency, to make payment." McNabb v. Osmundson, 315 N.W.2d 9, 15 (Iowa 1982). Florida will also sentence contemnors for civil contempt where there is no present ability
to comply. Comment, The Nonsupport Contempt Hearing: A Survey and Analysis of
FlordaLaw, 12 FLA.ST. U.L. REV. 117, 124 (1984) (citing Faircloth v. Farcloth, 339 So.
2d 650, 651 (Fla. 1976)). But see In re Martin, 76 Idaho 179, 279 P.2d 873 (1955) (holding
that a sentence for contempt cannot be imposed unless the conteinor has the present
ability to comply).
106. Nevitt, 117 F at 461. Describing the purpose of a coercive sentence, the Court
said:
The law will not bargain with anybody to let its courts be defied for a specific
term of imprisonment.
Each is detained until he finds himself willing to
conform. This is merciful to the submissive, and not too severe upon the refractory. The petitioner, therefore, carries the key of his prison in his own
CREIGHTON LAW REVIEW
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A further argument advanced for fewer due process guarantees
in civil contempt involves the nature of due process itself. The
United States Supreme Court has held that due process guarantees
are not absolute, but are intended only to insure "fundamental fairness" in any proceeding where the certain result will be a loss of liberty 0 7 In a civil contempt proceeding imprisonment is never more
than a possibility, because the only sentence allowed is a coercive
one, which can be avoided entirely if the contemnor does what the
court orders.' 08
The Supreme Court recently affirmed its support of different
levels of due process guarantees in civil versus crimmal proceedings
in general in Allen v. Illinois.0 9 The Court, in upholding the constitutionality of an Illinois law providing for czvil incarceration for certan sex offenders declared that "[our] sweeping statement that 'our
Constitution guarantees that no person shall be "compelled" to be a
witness against himself when he is threatened with deprivation of his
liberty' ... is plainly not good law." 110 The Court stated that, "involuntary commitment does not itself trigger the entire range of crim111
nal procedural protections."'
The Social Context of the Hicks Decmson
The Hicks case dealt with a father sent to jail for contempt as a
result of his failure to pay child support. 1 2 Justice O'Connor's dissent in Hicks recognizes that collection of child support payments has
become extremely difficult. 113 Some statistics illustrate the magmtude of this problem: in 1981 alone almost $3.8 billion in child- suppocket. He can come out, when he will, by making terms with the court that
sent im there. But if he chooses to struggle for a triumph,-if nothing will
content him but a clean victory or a clean defeat,-he cannot expect us to aid
him.
Id. (citation omitted).
107. Lassiter v. Department of Social Services, 452 U.S. 18, 24-25 (1981) (finding appointment of counsel not necessary prior to termination of parental rights when the
parent had every opportunity to obtain counsel but chose to represent herself).
108. Dobbs, 56 CORNELL L. REV. at 237.
109. 106 S. Ct. 2988, 2994-995 (1986). This case did not involve contempt proceedings, but discussed why lesser due process protections are afforded at all civil hearings.
The Allen case is a good illustration of the dangers that are inherent in using rigid distinctions for civil versus crmnnal hearings. Similar to a civil contempt proceeding, the
defendant's liberty in Allen was at stake even though criminal due process protections
were not available. See 7d. at 2992-995; R. GOLDFARB, supra note 10, at 293.
110. Allen, 478 U.S. at 2994 (emphasis added) (determining that a civil penalty is
permissible whether or not the individual has been criminally tried and convicted).
111. Id.
112. Hicks, 108 S. Ct. at 1425.
113. Id. at 1435.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
port was not paid.' 14 Less than half the women entitled to child
support received the full amount and those who received any at all
were likely to receive the support on a sporadic, unpredictable basis.115 Between 25% and 33% of women entitled to receive child support never receive even the first payment. 116 State and local officials
pursued more than six million child support cases in 1981, yet pay117
ments were received in less than 25% of these cases.
The state of child support enforcement in America today has
been characterized as a national disgrace. 118 Inadequacy of child support enforcement is the primary reason why the majority of American families with a female head of household are living beneath the
official poverty level.11 9 Women not receiving child support are often
forced to go on welfare with the American taxpayer footing the
bill. 20 Aid to Families with Dependent Children ("AFDC") was projected to cost the government approximately $8.1 billion in 1982
alone. 121
Contrary to popular belief, most men not making child support
payments can afford to pay something.122 One study found that fathers earning $30,000 to $50,000 a year were just as likely not to pay
123
child support as fathers making less than $10,000 a year.
Congress has regularly considered the child support problem,
and has encouraged the states to make more vigorous attempts to
114. Pearson & Thoerness, Will This Divorced Woman Recezve Child Support? 25
JUDGES J. 40, 40-41 (1986).
115. Id. The use of sex-specific language in this article is not meant to be sexist.
There are fathers who receive custody of their children, and mothers who fail to make
child support payments. However, the vast majority of custodial parents who are not
receiving child support are women. J. LIEBERMAN, CHILD SUPPORT IN AMERICA x1
(1986). The problem is not gender neutral, and it is compounded by the general mability of a woman to earn amounts equal to her former husband's earnings. J. CASSETY,
THE PARENTAL CHILD-SUPPORT OBLIGATION 4 (1982). In 1984, women could expect to
earn only about 60% of a man's salary. This earning discrepancy, along with the dismal state of child support enforcement, has resulted in the majority of children living
only with their mothers being forced to exist below the poverty level. THE CHILDREN'S
FOUNDATION, AN OVERVIEW OF THE CHILD SUPPORT ENFORCEMENT PROBLEM 1 (Sept.
1983); J. LIEBERIAN, supra,at x, 11-12.
116. THE CHILDRENS FOUNDATION, supra note 115, at 1.
117. OFFICE OF CHILD SUPPORT ENFORCEMENT, U.S. DEP'T OF HEALTH AND HUMAN
SERVICES, CHILD SUPPORT ENFORCEMENT-6TH ANNUAL REPORT TO CONGRESS 67, 72
(December 31, 1981).
118. J. LIEBERMAN, supra note 115, at ix.
119. Id. at x, 11-12.
120. Trends in Child Custody and Support, in Editorial Research Reports, 202
(1982) [hereinafter EDITORIAL].
121. Id. at 202-03.
122. J. LIEBERMAN, supra note 115, at 18.
123. Id. at 14-15. Another study discovered the disheartening fact that two-thirds
of men involved mithe study paid more mimonthly car payments than for child support. Id. at 15.
CREIGHTON LAW REVIEW
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track down absent fathers. 12 4 Congress has also allowed the withholding of federal income tax refunds of parents owing child supin 1988 to
port. x25 Both the House and Senate considered bills
26
further strengthen child support enforcement efforts.
The withholding of tax refunds has increased collection from delinquent fathers, but is not a solution in all cases. 127 In addition to
various withholding programs, the contempt power of the judiciary is
the primary tool available to enforce child support orders.-2 8 Many
courts fail to ascertain at the outset of the hearing whether the proceeding is for civil or criminal contempt. 129 This determination is essential to the proper conduct of the hearing as well as to the sentence
to be imposed. 3 0° It was a procedural challenge to a child support enforcement contempt hearing that brought Hicks to the Supreme
Court.
FACTS AND HOLDING
Hicks v. Fezock 131 came to the United States Supreme Court on
a writ of certiorari from the California Court of Appeal. The Califorma Supreme Court declined to review the holding.13 2 Phillip Felock,
the defendant, was held in contempt by a California trial court for
failure to make child support payments. 133 Feiock appealed his conviction, claiming his due process rights had been violated by the trial
court's application of title 5, section 1209.5 of the California Civil Procedure Code ("child support statute") which required Feiock to prove
his alleged inability to pay child support.'3
Feiock argued to the California Court of Appeal that the state
124. J. CAssE:T, supra note 115, at 19-20.
125. EDITORIAL, supra note 120, at 203.
126. Simms, Seeking Support for Black Children, Black Enterprise, Mar. 1988 at
35.
127. J. CAssETrY, supra note 115, at 21. See also Lance, supra note 78, at 92, 11-15.
128. Sword v. Sword, 59 Mich. App. 730, -, 229 N.W.2d 907, 912 (1975), affl'd, 399
Mich. 367, 249 N.W.2d 88 (1976) (overturning a fixed term of punishment for civil contempt but finding that rights to appointed counsel and jury trial are not available m
cavil contempt proceedings).
129. E. Lance, supra note 78 at 11-16.
130. See supra notes 73-98 and accompanying text.
131. Hicks v. Feiock, 108 S. Ct. 1423, 1428 (1988).
132. Id.
133. Id. at 1427.
134. Id. at 1427-428. The child support statute reads as follows:
When a court of competent jurisdiction makes an order compelling a parent to furnish support or necessary food, clothing, shelter, medical attendance,
or other remedial care for his child, proof that such order was made, filed, and
served on the parent or proof that the parent was present in court at the time
the order was pronounced and proof of noncompliance therewith shall be
prima fame evidence of a contempt of court.
CAL. CIV. PROC. CODE § 1209.5 (West 1982).
1988]
CIVIL VERSES CRIMINAL CONTEMPT
should bear the burden of proving he was financially able to pay the
child support.13 5 Relying on a long line of California cases which
hold all contempt proceedings to be crimmal in nature, the California
36
appellate court agreed with Felock and reversed his conviction.
The court of appeal held that the mandatory presumption of the
child support statute was not permissible under the due process requirements of the fourteenth amendment of the United States Constitution.' 3 7 The court then interpreted the child support statute as
creating only "a permissive inference, but not a mandatory presumption."'138 The court believed this interpretation was necessary for the
statute to conform to the requirements of the United States
Constitution. 39
The United States Supreme Court granted certiorari to determine whether the proceeding was properly classified as criminal contempt and therefore whether the requirements of the fourteenth
amendment were involved.140 The Supreme Court declined to review
the issues of mandatory presumption and whether ability to comply
with the order is an element of the offense or an affirmative defense
to the charge since those issues had been determined by the Califor14
ma Court of Appeal as matters of state law. '
The California Court of Appeal also found Feiock's hearing to be
criminal as a matter of state law. 142 The Supreme Court stated that
this finding was not dispositive, and because Feiock's objections to
the proceeding were based on the federal due process clause, the
135. Hicks, 108 S. Ct. at 1427-428.
136. In re Feiock, 180 Cal. App. 3d 649, 653, 225 Cal. Rptr. 748, 750 (1986). The Califorma Court of Appeal in Fezock relied on In re Witherspoon, 162 Cal. App. 3d 1000,
209 Cal. Rptr. 67 (1984), wherein the court held that contemnors m all contempt actions are entitled to all criminal due process protections except trial by jury. Id. at
1001, 209 Cal. Rptr. at 68. The Witherspoon case provides a list of previous California
rulings on contempt proceedings and declares that "[a] civil contempt proceeding is
crnnal in nature because of the penalties that may be imposed." Id. at 1000-1001, 209
Cal. Rptr. at 67-68.
137. Fewtck, 180 Cal. App. 3d at 654, 225 Cal. Rptr. at 751.
138. Id. at 655, 225 Cal. Rptr. at 751.
139. Id.
140. Hicks, 108 S. Ct. at 1429.
141. Id. at 1428. Most states consider inability to comply with the court's order an
affirmative defense to a contempt charge rather than an element of the contempt itself. The California court's determination of ability to pay as an element of the offense
subjected the statutory presumption to greater constitutional scrutiny than if lack of
ability to comply had been considered an affirmative defense. See Davis v. Barber, 853
F.2d 1418, 1420-423 (7th Cir. 1988) (finding that a defendant m a criminal nonsupport
action can be constitutionally forced to bear the burden of proof as to his inability to
comply with the order because inability to comply is an affirmative defense to the
criminal charge).
142. Hicks, 108 S. Ct. at 1429 See also supra note 136.
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[Vol. 22
Supreme Court determined that it could review the holding.14 3 The
Supreme Court disagreed with the California appellate court's assumption that since Califorma civil procedure classifies all contempt
proceedings as "quasi-crininal" that criminal due process protections
are required in all contempt actions. 44 The United States Supreme
Court said whether criminal due process is involved depends on
14 5
whether the hearing is for civil or criminal contempt.
The Hicks decision had two parts. The Court had to consider
first whether the hearing in question was for civil or criminal contempt, and secondly, whether the allocation of the burden of proof
146
was correct for the type of contempt proceeding being conducted.
The Court attempted to clarify the distinction between civil and
criminal contempt before applying the test to the Hicks case by stating the test to be used in determining the nature of a contempt hearmg.' 47 The Hicks Court adopted decisively the "purpose" test first
enunciated in Gompers v Bucks Stove & Range Co.148 The Hicks
test, going beyond Gompers' general guidelines, attempts to avoid a
subjective determination of purpose by specifying an objective test
for the purpose of a hearing. 149 The Court instructed that the proper
way to determine purpose is not to attempt "to psychoanalyze the
subjective intent of a [s]tate's laws and its courts," but simply to examine the punishment imposed. 50 When the punishment is deterninate the contempt action is crinmal; any indefinite sentence is to be
seen as coercive and therefore the contempt action is civil.''
The Hicks Court used one of their prior decisions, Penfield Co. v.
Securties Exchange Commission, 5 2 to illustrate the proper distmc143. Hicks, 108 S. Ct. at 1429.
144. Id. California and several other states consider all contempts "quasi-crinmmal"
which means that contempt proceedings are similar enough to ordinary crnminal proceedings that defendants should receive most of the due process protections allowed
criminal defendants. Wright, Byrne, Haakh, Westbrook & Wheat, Civil and Cnminal
Contempts in the Federal Courts,17 F.R.D. 167, 172. States differ on which due process
guarantees are afforded m contempt proceedings. Mascolo, Procedural Due Process
and the Right to Appointed Counsel in Civil Contempt Proceedings,5 W. NEW ENG.L.
REV.601, 618-27 (1983). See also CAL. CIv. PROC. CODE §§ 1209, 1218-19 (West 1982 &
Supp. 1988) (defining what constitutes contempt and the punishment therefor without
any distinction between civil and crininal contempts).
145. Hicks, 108 S. Ct. at 1429.
146. Id. at 1432-433.
147. Id. at 1429.
148. Id.
149.
Id.
150. Id. at 1431.
151. Id.
152. 330 U.S. 585 (1947). Although the Penfield court said it was using the "character" test the opinion precisely illustrates the Hicks rule on determination of purpose.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
tion between coercive and punitive sentences. 15 3 In Penfield, the
Ninth Circuit set aside a $50.00 fine nposed for a failure to produce
certain records, and ordered the contemnor imprisoned until he pro155
duced them. 154 The Supreme Court upheld the imprisonment.
The Court reasoned that since the sentence in Penfield was intended
to cause the production of the records it was coercive, and the proceeding was for civil contempt. 156 The fixed fine since it could not be
purged by the contemnor's compliance with the order was punitive in
157
nature and inappropriate to a civil contempt proceeding.
The Court in Hicks next discussed how the burden of proof
would be affected once it had been properly determined whether the
hearing was for civil or criminal contempt. The basis of the constitutional challenge in Hicks was what burden of proof was required. L5 8
The child support statute challenged in the Hicks decision provides
that in a child support action a pmma facte case of contempt is established by a showing that a valid child support order exists, that the
alleged contemnor knows of the order, and that the alleged contemnor has failed to comply with the order. 159 If this were a criminal
proceeding, the statutory presumption and the resultant shift to the
contemnor of the burden of proving inability to comply would not
meet constitutional requirements. 160 In a civil contempt hearing,
however, criminal due process protections do not apply, and therefore do not prevent placing the burden of proof on the alleged
161
contemnor.
153. Hicks, 108 S. Ct. at 1430.
154. Id. at 1430 n.6.
155. Id.
156. Id.
157. Id.
158. Id. at 1429. Most states, including California, place the burden of proving inability to comply with an order on the alleged contemnor. Dobbs, Contempt of Court:
A Survey, 56 CORNELL L. REV. 183, 266 (1971). The burden of proof of inability to comply is especially critical in a civil contempt proceeding because the one defense to a
conviction for civil contempt is a present inability to comply with the order. United
States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980). In other words, a court may not punish an individual who cannot comply with the order. Falstaff Brewing Corp. v. Miller
Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). Only a few states do not recognize inability to comply as a defense. See McNabb v. Osmundson, 315 N.W.2d 9, 15 (Iowa
1982); Comment, The Nonsupport Contempt Hearzng: A Survey and Analysis of Florida Law, 12 FLA. ST. U.L. REV. 117, 124 (1984) (citing Faircloth v. Faircloth, 339 So. 2d
650, 651 (Fla. 1976)).
The danger of placing the burden of proof on the alleged contemnor is that the
contemnor may not have the ability to comply with the order, but be unable to prove it
satisfactorily. Dobbs, 56 CORNELL L. REV. at 266. If this is the case, the individual
could be imprisoned mdefinitely for failure to perform an act that it is impossible for
the contemnor to perform. Id.
159. CAL. CIV. PROC. CODE § 1209.5 (West 1982). See supra note 129.
160. Hicks, 108 S. Ct. at 1432.
161. Id. at 1433. See supra notes 73-98 and accompanying text.
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The Supreme Court remanded the Hicks case for a determination of whether Felock's sentence would be purged if he paid off all
his arrearages. 162 If the sentence could be purged, then it is indeterminate and Feiock's hearing was for civil contempt.163 If the sentence could not be purged, and is therefore determinate, Felock's
hearing was for crimnal contempt and Felock was entitled to crininal due process protections, including forcing the state to prove his
present financial ability to comply with the support order.1 64 Even
though the Court remanded Felock's case for further proceedings,
the decision was clear: a hearing to enforce child support-a suit enforcing a private order and imposing a conditional sentence-is a civil
proceeding and the contemnor may be required to carry the burden
1 65
of proof regarding mability to comply.
ANALYSIS
The Supreme Court in Hicks v. Fesock 166 has provided a modern
test for courts to use in determining whether a proceeding is for civil
or crininal contempt. The Court has provided a simple, objective
test to replace the confusing, subjective tests courts have had such
difficulty applying in the past. The Hicks test instructs courts to ex167
amine the sentence imposed to determine the type of proceeding.
Any sentence that is imposed as a fixed, unalterable pumshmment
indicates crimnal contempt. 68 Thus, a sentence for five days in jail,
six months in prison, or a fine of five hundred dollars would identify
a criminal contempt proceeding. 6 9 Conversely, an indeterminate
sentence is one that can be affected by contemnor's behavior. 170 Examples of an indeterminate sentence include a fine of fifty dollars
per day until the contemnor complies with a court order, a sentence
of inprsonment until the contemnor performs a certain act, or any
162. Hicks, 108 S. Ct. at 1434.
163. id.
164. Id. at 1432. In her dissent, Justice O'Connor, joined by Chief Justice Rehnquist and Justice Scalia agreed with the majority's characterization of civil versus
criminal contempt. Justice O'Connor, however, felt that Feiock's sentence was civil as
a matter of law and that there was no need to remand the case for further proceedings.
The dissent also details Mrs. Feiock's lengthy battle to obtain child support, and focuses on the difficulties of enforcing child support. The dissent asserts that the Califorma court has "erected a substantial obstacle to the enforcement of child support
orders." Id. at 1435-436 (O'Connor, J., dissenting).
165. Id. at 1433-434. The Supreme Court explicitly indicated that state courts are
free to require full due process protections as long as that holding is validly grounded
upon the state's constitution. Id. at 1434 n.13.
166. 108 S. Ct. 1423 (1988).
167. Id. at 1430-31.
168. Id.
169. Id.
170. Id. at 1431 n.7.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
sentence or fine that will be suspended if and when a contemnor performs a certain act.' 7 1 Although this test, examining the sentence
retrospectively, seems particularly suited for appellate review, it can
be applied at the trial level. To apply the test prospectively a trial
judge need only determine if the hearing is for civil or crimnal contempt, follow the procedures for that type of hearing, and impose a
sentence designed in accordance with the Hicks rules. 7 2
The most interesting aspect of the Hicks case, however, may not
be what was decided, but why it was decided. Although the Court ostensibly granted certiorari to review the correct distinction between
civil and criminal contempt, the fact that the Hicks case involves the
enforcement of child support probably explains the Court's decision
to review the case. The California appellate court attempted to decide Hicks as a matter of state law.'7 3 State courts can constitutionally interpret state laws and constitutions to require more individual
rights than required by the Bill of Rights. 74 Because the appellate
court referred to due process and the fourteenth amendment the
Supreme Court found sufficient basis to review the court's decision.17 5 The Supreme Court's concern with the result of the case
seems misplaced, since the appellate court allowed Feiock more due
process protections than federal law requires.' 7 6 Feiock was not deprived of any rights guaranteed by the United States Constitution.
The Supreme Court might have been motivated to review the
Hicks case by a fear that the characterization of all contempts as
criminal would become widely adopted. If all contempt proceedings
were deemed criminal it would seriously impair the judicial enforce77
ment of child support orders.'
The impact on child support enforcement hearings would include
increased time to handle the proceedings. 7 8 The trial court would
have to hold a full criminal trial, complete with appointed counsel
and a jury before any parent could be found in contempt for failure
to pay child support. 79 Also, the more time needed for a hearing,
the more time it will take to fit the proceeding onto a court's already
171. Id. at 1430-431. An indeterminate sentence is not to be confused with a suspended determinate sentence. Id. at 1431, n.7.
172. See t& at 1429-430.
173. Id. at 1429.
174. J. NoWAK, R. ROTUNDA, J. YOUNG, CONSTITUTIONAL LAW, § 1.6, at 21 (3d ed.
1986).
175. Hicks, 108 S. Ct. at 1429.
176. Id. at 1438 (O'Connor, J., dissenting).
177. 1d. at 1436 (O'Connor, J., dissenting).
178. Sword v. Sword, 59 Mich. App. 730, -, 229 N.W.2d 907, 911 (1975), aff'd, 399
Mich. 367, 249 N.W.2d 88 (1976).
179. Id.
CREIGHTON LAW REVIEW
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crowded docket.' 8 0 This extra burden on the judiciary, however,
might be the least of the problems that would result from an abolition of the distinction between civil and criminal contempt in child
support actions.
A bigger hurdle is presented by a criminal burden of proof. If all
contempts were crininal, all elements of the contempt would need to
be proved beyond a reasonable doubt.' 8 ' Not only would the level of
required proof increase, but the burden of proving inability to comply
would be removed from the contemnor.' 8 2 The state or the child's
representative would be forced to attempt to prove the contenmor
has the present financial ability to comply-a situation uniquely
83
within the knowledge and control of the alleged contemnor.
Another severe difficulty would be presented by compliance with
the fifth amendment's guarantee against self-mcrmination. 184 If the
parent owing child support would be incarcerated once the parent's
ability to pay were proved, the privilege against self-incrimination
might be invoked.' 8 5 The delinquent parent could thus avoid any
questions about his or her financial status and effectively defeat the
86
prosecution's attempts to demonstrate the parent's ability to pay.
The only way the prosecution could demonstrate financial ability to
comply would be via the expensive and time-consuming process of attempting to gather from banks, employers, and credit bureaus mformation regarding the parent. 8 7 It is doubtful that prosecutors and
social welfare workers would have sufficient personnel to obtain information adequate to prosecute these cases even in the situations
where information were available.
The guarantee against double jeopardy, not currently available in
proceedings for civil contempt, might present further barriers to
prosecution. 8s A father that was tried once and found not to be in
contempt because of a present inability to pay might escape future
proceedings after an improved financial condition.
Even though the majority in Hicks did not discuss the importance of child support enforcement proceedings, the ramifications
must have been a consideration. The Court seemed to go out of its
way to indicate that no matter what the ultimate outcome in the
180. Id.
181. In re Winship, 397 U.S. 358, 364 (1970); Sword, 59 Mich. App. at -, 229 N.W.2d
at 912.
182. See supra notes 158-61 and accompanying text.
183.
184.
185.
186.
187.
188.
See znfra note 164 and accompanying text.
In re Witherspoon, 162 Cal. App. 3d 1000, 1002, 209 Cal. Rptr. 67, 68 (1984).
Id.
In re Martin, 76 Idaho 179, -, 279 P.2d 873, 878 (1955).
Sword, 59 Mich. App. at -, 229 N.W.2d at 912.
See supra note 78.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
Hicks case, certain procedures, if followed, classify a contempt proceeding "civil in nature. 1 8 9 Classification of the proceeding as one
for civil contempt prevents the application of criminal due process
guarantees. 190 Requnrig criminal due process protections would
make enforcement of child support orders much more difficult. 1 91
The need to enforce child support orders should not blind the judiciary to a simple fact: civil contempt permits incarceration without
criminal due process guarantees.192 This is an anomaly in our system
of justice, 19 3 and surely a result to be avoided as much as possible. In
fact, incarceration for a civil offense is virtually unknown except in
civil contempt proceedings, where it is a standard procedure. 194 Civil
contempt should be used sparingly and only where all other possibilities have been fully considered-mcluding all the possible harms that
could result from the use of the power.1 95 The Supreme Court itself
3
189. Hicks, 108 S. Ct. at 1434 n.1 .
190. See supra notes 73-98 and accompanying text.
191. Hicks, 108 S. Ct. at 1436 (O'Connor, J., dissenting).
192. H. KRAUSE, CHILD SUPPORT IN AMERICA 72 (1981).
193. In re Credidio, 759 F.2d 589, 594 (7th Cir. 1985) (Posner, J., dissenting).
194. R. GOLDFARB, THE CONTEMPT POWER 293 (1963).
195. A disturbing trend has developed in child custody cases wich disregards this
caution. In a series of recent cases judges have held mothers in civil contempt for refusing to produce their child for scheduled visitations with ex-husbands where there
are allegations of sexual abuse of the child by the ex-husband. In December, 1981, a
Califorma court held Faye Henderson in contempt for refusing to allow her then twoyear-old daughter to visit her father after a medical examination found evidence that
the girl had been sexually abused. N.Y. Times, May 12, 1984, at 43, col. 1. When the
girl was three, she "was found to have serious vaginal injuries" following a visit with
her father. The visits were finally stopped. Id.
In Massachusetts, Virginia LaLonde was unprisoned for six months in 1987 for
civil contempt for hiding her eight-year-old daughter from her ex-husband whom Mrs.
LaLonde had charged with sexually abusing the girl. The N.Y. Times, October 18,
1987, at 62, col. 3. Mrs. LaLonde was only released from prison because authorities received a tip, found where she had sent her daughter, and then returned the girl to
Massachusetts. Regional Newswire Release from United Press International (May 2,
1988) (headline: LaLonde Hearings to Begin). Physical and psychological examinmations of the daughter have confirmed the sexual abuse. Although Mrs. LaLonde has
been released from prison she has yet to regain custody of her daughter. Id.
The most widely-publicized of these civil contempt cases is that of Dr. Elizabeth
Morgan. Dr. Morgan, a surgeon trained at Harvard, Yale, and Oxford, was jailed August 28, 1987 for refusing to present her five-year-old daughter for a visit with the
child's father. N.Y. Times, November 14, 1987, at 1, col. 5. Dr. Morgan believed that
her ex-husband, oral surgeon Dr. Eric Foretich, had been sexually abusing the child.
Id. The court determined that there was insufficient evidence to find Foretich had
abused the child. The court, however, excluded the testimony of Foretich's daughter
from a previous marriage. This daughter was to testify that she had been abused by
Foretich. The Fourth Circuit Court of Appeals later ruled that this evidence, along
with statements by Dr. Morgan's daughter, had been improperly excluded. Morgan v.
Foretich, 846 F.2d 941 (4th Cir. 1988). Because Dr. Morgan's daughter remains in hiding, however, it is unlikely that a hearing can be held on remand. In April of 1988 the
U.S. District Court for the District of Columbia denied Dr. Morgan's writ of habeas
corpus and held that Dr. Morgan had not exhausted her remedies below. Morgan v.
CREIGHTON LAW REVIEW
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has recognized that in a contempt proceeding, perhaps more than any
other type of action, the court's judicial temperament and human nature can be tested. 19 6 The potential for abuse of a power of this magnitude that is to be used when the court is already in an adversarial
position to the contemnor, is obvious. In the words of the Supreme
Court, "care is needed to avoid arbitrary or oppressive conclusions"
197
in the exercise of the contempt power.
It is time for Congress and the state legislatures to examine the
civil contempt power and impose limits upon its use to protect mdividual liberties. Although the Supreme Court recently affirmed that
the ability to punish for contempt is an inherent power of the judiciary, 198 the Court has also said Congress may prescribe the procedures
federal courts utilize in dealing with contempt, as long as these procedures do not infringe upon the substance of the power to punish
for contempt.1 99 In fact, statutory restrictions on the exercise of the
20 0
contempt power have been accepted for more than sixty years.
Statutory limits have been placed on the use of civil contempt to
compel testimony before federal grand juies201 and statutory requirements specify how the contempt power may be exercised m en20 2
forcing certain laws.
Congress and the state legislatures should now consider statutorily limiting the use of civil contempt. Civil contempt should only be
utilized in child support and alimony proceedings where few, if any,
viable alternatives exist. It is also allowable because of the severe results of nonpayment of child support: children go without adequate
Plaut, Civ. No. 88-492, (D.C. Cir. April 11, 1988) (order denying writ of habeas corpus).
At tins writing Dr. Morgan has been m jail for more than a year and been fined approximately $1,500,000 ($5,000 per day). L.A. Times, Dec. 20, 1987, at 8, col. 2. These
penalties have been imposed upon Dr. Morgan without her having the benefit of a jury
trial, and when, if ever, she will be released is at the sole discretion of the judge who
sentenced her. It is possible she will remain jailed until her daughter 's 18 years old
and no longer Dr. Morgan's legal responsibility. Petition for Writ of Habeas Corpus at
15-16. Morgan v. Plaut, Civ. No. 88-492 (D.C. Cir. 1988).
196. Bloom v. Illinois, 391 U.S. 194, 202 (1968). Given the relative sentences which
may be imposed, and the human issues involved, it is interesting to note that the judicial rule is that a court exercises its power to a lesser degree operating in civil than
criminal contempt, and should resort to criminal contempt proceedings only when coercion via civil contempt has not been successful. Shillitanz, 384 U.S. at 371. Practicing attorneys do recognize that civil contempt is really the more punitive of the two
forms of contempt, and tailor requests for relief accordingly. R. GoLDFARB, supra note
194, at 293-94.
197. Bloom, 391 U.S. at 202 (citing Cooke v. United States, 267 U.S. 517, 539 (1925).
198. See supra, note 17 and accompanying text.
199. Young v. United States, ex rel. Vuitton Et Fils, S.A., 107 S. Ct. 2124, 2133
(1987).
200. Michaelson v. United States, 266 U.S. 42, 65-66 (1987).
201. See supra note 17.
202. See supra note 93.
1988]
CIVIL VERSES CRIMINAL CONTEMPT
food, clothing, and shelter. A statutory limitation could prevent the
incarceration of an individual for refusal to obey a court order without due process protections in all other instances. Additionally, legislative limitations should be placed on the sentences that can be
imposed for civil contempt.
CONCLUSION
It is time for legislative action to limit the breadth of the civil
contempt power and to delineate more effective procedures for the
enforcement of child support. It would be entirely consistent with
our system of separation of powers for Congress and the states to enact limitations on the use of civil contempt power. Properly designed
statutory limitations on the exercise of the contempt power would allow the courts to enforce child support orders, while forcing courts to
find more effective ways to deal with issues such as custody disputes.
The contempt power is important to the judiciary. The most crucial element to the judiciary, however, is the power to summarily
punish direct contempts which threaten to disrupt judicial proceedings. 2 0 3 This power would not be affected by a limitation on the use
of civil contempt since disruptive contempts are punished primarily
by the use of crimnal contempt proceedings. 20 4 Legislative limitations on civil contempt are necessary to conform with the spirit of
due process as embodied in the Constitution. As one writer stated in
urging reforms of civil contempt twenty-five years ago, "[t]hls extraordinary departure from general principles of criminal law is not
made any more appropriate by magically dubbing this peculiar device
205
a civil contempt."
DianaJ. Vogt-'90
203.
204.
205.
Dobbs, Contempt of Court: A Survey, 56 CORNELL L. REV., 183, 184 (1971).
Id. at 236.
R. GOLDFARB, supra note 192, at 294.