The Journal of The DuPage County Bar Association

Back Issues > Vol. 11 (1998-99)

Contempt of Court
By Honorable Kenneth L. Popejoy


I have had the privilege of being a judge for slightly less than one year and I am frequently asked the question "What is it like to be a judge? What is it like to sit on the other side of the bench? What is it like to have the inherent power that a black robe can give you when your sitting in judgment on people, their lives or issues that can directly or indirectly affect their lives?"

My response is that it is a "power" that I am still in awe of; and I hope one that I will always remain in awe of and yet I truly hate to use the word power.

I don’t consider the usual definition of power to be the same as the Judicial use of the word power. Certainly there is a level of authority and power that us fortunate to serve on the Judiciary have and yet we must exercise a level of discretion in how we utilize that power. The equitable nature in how we utilize that power and the restraint that we exhibit in the use of that power are all items that need to be continually reviewed on a day to day basis as we continue to function in this role.

Recently while serving as a floating judge in the Domestic Relations Division, I was presented with my first exposure to the "power" of contempt.

My legal experience is almost exclusively in the Law Division having twenty-one years of Civil and General Law background. I am well aware of Rules to Show Cause why you should not be held in contempt of court but in the Law Division this procedure is predominately used to get compliance with discovery, i.e.. interrogatories, notices of production which have not been complied with, or the alternative to get a date certain for a deposition after you have been arguing back and forth with your opponent on trying to schedule a date.

In Domestic Relations, Rules to Show Cause not only are an everyday occurrence, but on a high percentage basis they do result in a finding of "contempt". Usually it is for the failure to pay child support, failure to adequately search for a job so you can satisfy child support obligations and failure to comply with various court orders by way of the signing of documents for the transfer of real estate or the like.

So here I am sitting on the bench, on the third floor and I have found that there is a basis for "finding of contempt" and now what do I do.

Well, when one recalls television reruns of L.A. Law and all the other Judicial T.V. programs now flooding the airwaves, one thinks of the contempt where someone has offended the judge or acted in such a manner that there is a finding of contempt, the individual is handcuffed, and is immediately transported over to the Jail. That is a type of contempt and certainly every now and then that type of contempt does "rear its ugly head" in the courtrooms of the 18th Judicial Circuit of DuPage County.

What I have come to realize, especially in the setting of the Domestic Relations Division of the DuPage County Courthouse, is that the vast majority of contempt which is exhibited is not the obvious offensive contempt which requires immediate cuffing and incarceration, but it is instead a failure to comply in one way or another with a court order or legal obligation pertaining to the issues of domestic relations.

In my role as a judge there are a number of considerations flowing through my mind as I am sitting here ready to rule on a hearing of contempt.

I have two attorneys looking at me. I have each of their perspective clients looking at me. I have a court clerk and bailiff looking at me and assorted individuals sitting out in the gallery as well as other attorneys waiting for their case to proceed.

I am thinking to myself: "what do I do?" Do I send somebody to jail or not. Did they willfully fail to follow the court order or were they simply not able to follow the court order for good reason? Do I want to punish this individual or do I want to find a way to obtain compliance with this individual.

As the new judge on the block all of these factors come into play and I have found in talking with other members of the Bar there is a similar general question of how to utilize this power of contempt not only from my side of the bench but from the attorneys side of the bench in petitioning for and proceeding with hearings on failure to comply with previous court orders.

As I have greatly enjoyed my months as a floating judge in the Domestic Relations Division and as I anticipate many more years of judicial activities at this location I felt it to be in the best interest of myself as well as others appearing before me to discover all the different facets of contempt...

II General Definitions

Basically there are four types of contempt. I will briefly define each type and then will return to each one to discuss the more detailed nuances of how a request for each type of contempt should be presented to the court and what the procedures or policies of the court should follow in responding or ruling on each type of contempt.

THE FIRST DETERMINATION THAT IS MADE IS WHETHER THE CONTEMPT IS CRIMINAL IN NATURE OR CIVIL IN NATURE. Criminal contempt is where a court imposes sanctions to punish past misconduct. Civil contempt is were sanctions are imposed for coercive purposes i.e. to compel an individual to perform a particular act. In this situation the individual who is subject to the contempt order must be capable of taking the action sought to be coerced and no further sanctions can be imposed upon compliance with the purge order (I will discuss the purge order in more detail later in this article).

THE SECOND DETERMINATION IS WHETHER THE CONTEMPT IN DIRECT OR INDIRECT. Direct contempt is conduct which occurs in the presence of the court or a constituent part of the court. This is that T.V. series type of contempt I referenced earlier where the purpose of imposing sanctions is to restore order in the courtroom or to maintain control over the proceedings in the courtroom. Such a finding can be made in a summary matter immediately after the contemptuous conduct occurs. Indirect contempt is a grouping of all acts which do not occur in such proximately to a court that they fall within the direct contempt category.

III Specific Types of Contempt

Now that I have discussed the two considerations that have gone into a judge’s initial determination (i.e. is this criminal or civil in nature and then is this direct or indirect), I will now discuss in more detail each of the four actual findings of contempt that a court has the power to order with the underlining considerations that are necessary for such a finding and the sanctions that can be imposed upon such a finding.

A. Direct Criminal Contempt

In this type of contempt there is no formal charge that is filed nor is there any plea issued or trial that is required and as such presentation of evidence is unnecessary.

Upon consideration of direct criminal contempt the judge should advise the defendant of the contemptuous conduct. The defendant should be allowed to make a statement prior to the imposition of any sanction by the court. The court should set forth fully the facts supporting the finding of contempt in the contempt order or be sure they appear in the transcript of the proceedings at which the contempt finding is made. From the court’s point of view this information that is in the record should be sufficient to permit any reviewing court to determine whether the trial court had jurisdiction to enter the contempt order. Upon the completion of that the judge should then write the contempt order and should advise the defendant of his or her right to appeal. Upon the issuance of such a contempt order and because such order is summarily made without a jury the fine must not exceed $500.00 and any jail sentence must not exceed six months.

B. Indirect Criminal Contempt

Before the court can even get to a consideration of indirect criminal contempt a petition for adjudication of criminal contempt must be filed by the party requesting the court to make such a finding. Following the filing of such a petition the court should inform the defendant of the nature of the charges in a definite and specific manner and should then advise the defendant of his or her following rights: 1) Privilege against self incrimination; 2) Presumed innocent until proven guilty; 3) Any finding of guilty must be beyond a reasonable doubt; 4) The right to counsel; 5) The right to public trial; 6) The right to subpoena witnesses in their defense; 7) All other procedural requirement applicable in criminal trails. If the judge finds that indirect criminal contempt has occurred then an order of adjudication of indirect criminal contempt must be written which must: 1) Be in writing; 2) Set forth the grounds upon which contempt is based; 3) Contain facts showing the basis for the contempt (not merely conclusions or opinions of the trial court); and, 4) Contain specific adjudication of contempt and the sanctions imposed. If a jury is not allowed then the sanctions are limited to a fine not to exceed $500.00 and/or jail time not to exceed six months. If a jury has been permitted then the fine can be unlimited as can the jail term with the obvious exception that either fine and/or jail must be reasonable. If the court believes prior to a hearing on indirect criminal contempt that there is a good chance that the fine and or jail term would exceed the minimum of $500.00 and/or six months then the defendant must be informed of his right to a jury trial along with the other admonishments previously referenced.

C. Direct Civil Contempt

Recalling the definition of direct contempt as conduct which occurs in the presence of the court and civil contempt meaning that which is imposed for corrosive purposes. Direct civil contempt is one that is used in the Domestic Relations Division on a great many occasions were the restoration of order and control in the proceedings of the courtroom are required. In order to proceed towards such a finding a judge should advise the defendant of the contemptuous conduct, allow the defendant to make a statement prior to the imposition of any sanctions and then the court should impose its sanctions with a "Purge Order". The purge order is clearly similar to giving a defendant "the keys to his own jail". The court, by including a purge order, is giving the defendant the right and the ability to end the finding of contempt by giving that defendant the ability to perform a particular act which will then bring him or her into compliance. It is essential that any finding of direct civil contempt contain such a purge order and that the content and detail of that purge is clearly spelled out in the order and advised to the defendant. At the end of the hearing that written contempt order shall clearly outline the purge aspect of same and finally advise the defendant of his or her right to appeal.

Direct civil contempt is probably the most imposing type of contempt that can occur simply because the sanctions that are available to the court are and continuing fines and/or indefinite jail sentence until the purge order is complied with. Note there are no longer any dollar restrictions of $500.00 or less nor are there any jail time restriction of six months or less. The sanction of "indefinite" and "continuing" are powerful, harsh and extremely coercive. While this type of contempt could be reviewed as the most powerful club in a judges arsenal such club should be used sparingly and as a very last resort and should only be imposed after serious and thoughtful consideration.

D. Indirect Civil Contempt

For there to be any consideration of indirect civil contempt a verified petition is required which must contain an adequate description of the facts on which the contempt charge is based and it must inform the alleged individual of the time and place of an evidentiary hearing on the charge within a reasonable time in advance of the hearing. This is what is customarily utilized and requested in a petition for Rule to Show Cause. It should be noted though that the individual charge may waive service of written notice of the charge by voluntarily appearing in court and defending against the charge. When a judge is presented with such a verified petition and at the commencement of any such evidentiary hearing the defendant needs to be advised of the following rights: 1) To answer orally or in writing; 2) To be heard; 3) Present evidence; 4) To cross examine witnesses; 5) To subpoena witnesses; 6) To advise counsel of choice. If the court finds a sufficient basis then a written contempt order shall impose as sanctions an indefinite and continuing fine and or a jail sentence until a purge order is complied with. Following the issuance of such an order the defendant must be advised of his or her right to appeal.

IV Specific Issues Relating to Domestic Relations

Having discussed the general considerations and specific definitions of each type of contempt, I will now briefly discuss three sub-issues (out of a choice of far many more) that seem to present themselves on a more frequent basis in the Domestic Relations Division.

A. The Right to Court Appointed Counsel and/or Jury Trial

In the Domestic Relations Division when dealing with a pro-se litigant the respondent in a direct or indirect civil contempt proceeding may request or inquire about their right to court appointed counsel. At the current time there appears to be a conflict among Appellate Courts as to whether said respondent has the right to appointed counsel. The Court in In Re the Marriage of Betts, 200 Ill App 3d 26, 558 NE 2d 404, 426, 146 Ill Dec. 441 (4th Dist. 1980), stated "imprisonment for civil contempt is unique in that the contemnor may secure his immediate release from incarceration by either complying with the court order which he has refused to obey or demonstrating that he is unable to comply with that

In regard to the right of trial by jury it is clear that a contemnor does not have a right to a trial by jury in a direct or indirect civil proceeding. County of Cook v. Lloyd A. Fry Roofing Company, 59 Ill 2d 131, 319 N.E. 2d 472 (1974); Shillitani v. United States, 384 U.S. 364, 16 L.Ed. 2d 622, 86 S. Ct. 1531 (1966); Cheff v. Schnachenberg, 384 U.S. 373, 16 L.Ed. 2d 629, 86 S. Ct. 1523 (1966).

B. Burden of Proof

It is the generally held position that the petitioner has the burden of proof on a hearing for direct or indirect civil contempt. That burden of proof requires the petitioner to show prima facie evidence of contempt by preponderance of the evidence, Central Production Credit Association v. Kruse, 156 Ill App 3d 526, 509 N.E. 2d 136, 108 Ill Dec. 710 (2nd Dist. 1987) and once that burden of the petitioner has been met the burden of proof then shifts to the respondent to prove his or her conduct is not willful and contemptuous and/or in the alternative to prove any affirmative defense that he or she may have. It is important to note that Illinois does not have a statue concerning prima facie evidence in contempt proceedings. Instead, we have achieved the same end by means of a presumption. In In Re the Marriage of Logston, 103 Ill 2d 266, 469 N.E. 2d 167, 175, 82 Ill Dec 633 (1984) the Supreme Court stated "the non-compliance with an order to pay maintenance constitutes prima facie evidence of contempt. Therefore once the prima facie showing is made, the burden shifts to the defendant, who may then defend by showing that he is unable to pay.... To prove this defense, a defendant must show that he neither has money now with which he can pay, nor has disposed wrongfully of money or assets with which he might have paid."

C. Civil Contempt - The Sanction of Jail

When a court is dealing with a request or hearing on civil contempt whether it be direct or indirect, the resultant sanctions imposed by the court must be coercive i.e. intending the repsondent/contemnor to comply or conform with a court order, activity or the like. Furthermore, the respondent/contemnor must be allowed to purge him or herself of said contempt at any time thereafter. The intent of civil contempt is not punitive. People Ex Rel Chicago Bar Association v. Barasch, 21 Ill 2d 407, 173 N.E. 2d 417 (1961). Quite often when reviewing courts look at the entire record of a finding of contempt which is being appealed, that reviewing court will first determine whether the sanctions imposed by the trial judge were coercive or punitive in nature. Even though a trial court may call their finding of contempt "civil", that trial courts order of contempt will be reversed if the reviewing court finds the sanctions to be, instead, punitive in nature and if the respondent has not been afforded his criminal procedural rights. People v. Rodriguez, 162 Ill App 3d 149, 514 N.E. 2d 1033, 113 Ill Dec. 121 (2nd Dist. 1987).

In regard to sanctions for civil contempt, the Illinois Supreme Court, quite some time ago, has made it clear that such sanctions are to be continuing, open ended and subject to being purged: "Imprisonment imposed for a criminal contempt is purely punitive and must be for a definite term... But in cases of civil contempt, the sentence being imposed as a remedial or coercive measure, the appropriate punishment is to commit the contumacious party to imprisonment until he has complied with the mandate of the court, since the fine or imprisonment for a specified term might not secure obedience to the order." People v. Radlich, 402 Ill 270, 83 N.E. 2d 736, 740 (1949).

Years later, the Supreme Court once again addressed this issue and reaffirmed its directive for open ended sanctions when it stated "When a party is found in civil contempt of court, such as for failure to pay money, the contempt order is coercive in nature. The court seeks only to secure obedience to its prior order. Since the contempt order is coercive rather than punitive, the contemnor must be provided with the ‘keys to the cell’. That is, he must be allowed to purge himself of contempt even after he has been imprisoned... Accordingly, imprisonment for a definite period of time is improper in this situation." Sullivan v. Sullivan 16 Ill App 3d 549, 552, 306 N.E. 2d 604 (1973); In Re the Marriage of Logston, 103 Ill 2d 266, 469 N.E. 2d 167, 82 Ill Dec. 633 (1984).

The most recent case dealing with the issues of sanctions in civil contempt, that I have been able to find from our own Second District is In Re the Marriage of Michael R. Morse and Mary Joan L. Morse, 240 Ill App 3d 296, 607 N.E. 2d 632, 180 Ill Dec. 563 (2nd Dist. 1993). In this case the court found a husband in contempt for failure to pay child support and maintenance, failure to authorize his attorney to turn over escrow funds, failure to obtain leave of court prior to selling, assigning or transferring marital assets and failure to make mortgage payments. In regard to each allegation of contempt, the trial court found as follows: (1) The plaintiff was found in indirect civil contempt for failure to pay child support and maintenance and was sentenced to seven (7) days in McHenry County Jail with said sentence stayed to March 16th, plaintiff having the ability to purge himself of this contempt by bringing said support current by March 16th. (2) The plaintiff was found in indirect civil contempt for failure to authorize his attorney to turn over escrow funds and was sentenced to seven (7) days in jail with plaintiff having the ability to purge himself of contempt by signing any authorization needed to release said escrow funds by March 1, 1991 with the sentence stayed until March 1, 1991. (3) Plaintiff was found in direct criminal contempt for his failure to obtain leave of court prior to selling, assigning or transferring assets and he was sentenced to thirty (30) days in McHenry County Jail, and (4) Plaintiff was found in direct civil contempt for failure to pay mortgage payments and he was sentenced to thirty (30) days in jail to commence on March 16th with plaintiff having the ability to purge himself of the contempt by bringing the mortgage payments current by March 16th. The Appellate Court, upon appeal from the plaintiff/husband, looked at the first issue as being whether the findings of contempt are civil or criminal in nature. In findings 1, 2 and 4 the trial court had expressly referred to those as civil contempt, nonetheless, as the Appellate Court noted, the distinction between civil and criminal contempt depends on the nature of the sanction being imposed rather than the trial courts characterization. "For civil contempt to be found, the sanctions are coercive, and the respondent must be allowed to purge himself of contempt at any time thereafter". The Appellate Court, in analyzing the three civil contempt orders of the trial court, found that if the husband did not purge himself as of certain dates then he was going to jail for a definite and certain time frame with no further opportunity to purge himself. As a result of that inability to purge after the jail sanction commenced, the Appellate Court found the contempt findings at issue to be criminal in nature and not civil. Therefore, since the plaintiff was not afforded his required procedural safeguards those civil contempt findings were reversed.

Two important points must always be remembered, (A) an individual found in civil contempt must have the means to purge him or herself by complying with the court order. If those means are not available, following testimony and/or proofs related thereto, the incarceration is not an option, and (B) Even though there is no fixed term of sanction in civil contempt, due process directs that sanctions must cease when the sanction no longer has a coercive effect. Sanders v. Shepard, 163 Ill 2nd 534 (1994). What determines when a sanction no longer has a coercive effect? The Sanders case, in summary, stated that the contemnor has the burden to demonstrate to the court that the sanctions have lost a coercive effect and the factors to be considered in deciding if they have lost the coercive effect are (a) the credibility of contemnors avowed refusal to comply with the order, (b) age and health of the contemnor, (c) the length of the incarceration, (d) the significance of the ends to be achieved, and, (e) evidence of other inmates, community members and expert witnesses regarding the strength of contemnors resolve. In the Sanders case, the facts showed that the contemnor had been

incarcerated for a term of six (6) years at six (6) month intervals, for failure to return a child to its mother. The Court held that the sanction continued to have a coercive effect!

V. Conclusion

It is important for all parties, the attorneys for each litigant as well as the court to clearly make initial determinations as to whether the conduct of the defendant is or should be characterized as criminal or civil as well as the further determination of direct or indirect. In the Domestic Relations Division , the ability to impose an indeterminate jail sentence for indirect civil contempt can be an extremely powerful tool in obtaining/coercing a required act of a respondent/contemnor. It must always be clearly and without question noted that the contemnor must always be allowed to purge himself even after he has been imprisoned, and, as a necessary determination of that end result, the contemnor must have the means to purge himself of said contempt. Those determinations must be made on the record.

Circuit Court Judge Bonnie M. Wheaton said it best in summarizing a previous article written by her for the November 1988 DuPage County Bar Brief when she summarized stating: "An attorney or judge faced with possible contemptuous behavior should first determine the relief sought, and work backwards.... When in doubt about whether certain actions constitute civil or criminal, direct or indirect contempt, both the attorney and the judge should be well advised to treat the matter as indirect criminal contempt. A case is unlikely to be reversed because the court afforded the defendant too many procedural safeguards, but countless cases have been overturned for providing too few. " I can think of no better admonition for all of us practicing in the Domestic Relations Division and I wish you all the very best in dealing with the issues of contempt in a proper and authoritative manner.

Honorable Kenneth Popejoy is a Presiding Judge in the Domestic Relations Division. He received his Undergraduate Degree in 1973 from Michigan State University and his Law Degree in 1977 from I.I.T./Chicago-Kent.

The author gratefully acknowledges the documentary assistance and support of the Honorable Robert E. Byrne and the Honorable Bonnie M. Wheaton in the organization and presentation of this article.

DCBA Brief