1. Criminal v. Coercive Contempt  Criminal Contempt  Punishes past conduct /vindicate court’s authority  Characterized by the imposition of a determinate fine or jail sentence  Imposed only for willful violations  Most of the procedural protections applicable in criminal proceedings apply  Coercive Civil Contempt  Designed to coerce contemnor to comply with court order in the future – escalating fines per day or jailed until compliance  Viewed as remedial – contemnor holds “keys to the jailhouse door”  Civil procedures typically apply

2. UMW v. Bagwell – criminal or coercive o How do we characterize the contempt fines imposed by the trial court judge – criminal or civil in nature? o 1 st set of fines -- $642,000 o Look criminal – determinate fines for past actions & payable to gov’t o 2 nd set of fines (pursuant to schedule announced at first contempt hearing)-- $52 million: o Va courts – fines are coercive in nature – civil procedures are fine o SCT – fines are criminal in nature – criminal procedures should have been used before imposition

3. SCT reasoning re Bagwell fines – the distinction between classic and Bagwell-type schedules: Classic Coercive Contempt: 1) Court issues order: “Disclose your source.” 2) Reporter subject to the order violates it; is found in contempt; jailed/ fined daily until complies with order. Bagwell conditional fines: 1) Court issues injunction prohibiting certain destructive behavior by union. 2) Court threatens penalties for future violations. 3) Union violates order; is found in contempt; previously threatened fines are imposed.

4. When are criminal procedures required for what looks like coercive contempt? 1. Can the fine be purged after a contempt finding? Bagwell – no Reporter/source -yes 2. Is the contempt direct (i.e., in the courtroom)? Bagwell – no Report/source - yes 3. Is the court’s order that was violated simple or complex? Bagwell – complex Reporter/source - simple

5. About what overall issue is the Bagwell Court worried? SCT walks fine line between allowing judges to preserve courts’ authority & integrity and preventing judicial abuse Judges preside over contempt proceedings pertaining to their own orders. With a contumacious D, judges risk losing perspective as arbiters and becoming actors with personal stakes (especially in cases such as Bagwell) Risk of judicial abuse can be high On the other hand, courts need to enforce their orders & protect their integrity Bagwell ’s requirement of criminal procedures in certain kinds of cases attempts to preserve integrity of court and ensure fairness in those instances when the likelihood of abuse is highest.

6. In cases where coercive contempt is appropriate, the big question is: If the goal is to coerce the contemnor to comply, can the contempt operate perpetually if the contemnor refuses to comply? General rule re release of contemnor: Court should release contemnor from coercive contempt when (1) compliance is no longer needed OR (2) the contempt no longer has a coercive effect. Anyanwu standard: Is there a substantial likelihood that continued commitment will accomplish the purpose of the court order? If yes – court can maintain confinement If no – court should release contemnor It is contemnor’s burden to show that the contempt has lost its coercive impact.

7. How does a judge determine that the coercive order has lost it’s impact?  Is it enough that the contemnor avows “he will never give in”?  Probably not – refusal to comply is alone insufficient  So what more is needed?  How do factors such as “age, state of health, & length of confinement” relate to contemnor’s credibility?  “Each case must be decided on an independent evaluation of all of the particular facts. Age, state of health and length of confinement are all factors to be weighed, but the critical question is whether or not further confinement will serve any coercive purpose.” Catena v. Seidl (quoted in Anyanwu ) These are very fact-bound & context-specific inquiries

8. How does a judge determine contemnor’s stubbornness has become irrevocable – cont’d How relevant is the form of testimony re contemnor’s stubbornness? Live testimony vs. affidavits Personal testimony vs. third-party testimony Psychiatric testimony? Did the form of Anyanwu’s evidence (along with his actions) help or hurt his claim regarding the coercive effect of the contempt? 2 letters from Vice-Consul US Embassy & Civil Rights Ctr. (both suggesting court case has made situation worse) Never testifies on own behalf Never did what court asked him to do (despite court making it easier for him to comply)

9. Is the contemnor’s motive for non-compliance relevant to whether they should be released? Hypos: Dr. Elizabeth Morgan refuses to reveal the whereabouts of her child due to fear of husband’s abuse Anyanwu husband’s refuses to turn over children due to marital/national/cultural issues Catena refuses to testify due to Mafia code of silence Are some motives better than others? If so, why – because they are more worthy or because they indicate the contemnor is unshakeable? Do we want people violating court orders for moral reasons? What do courts say? Most courts don’t take it into account explicitly (except for safety) but it does often affect them on a subconscious level

10. Impossibility as a defense Impossibility of compliance with a court order is a defense to contempt (both criminal and civil coercive). It is the contemnor’s burden to prove impossibility How do we determine when it is impossible for the contemnor to comply? Often it’s just a matter of credibility – does the contemnor’s story hold up to scrutiny? What if the contemnor is partly responsible for why she can’t comply? Courts are unlikely to allow the defense. Court will probably hold a criminal contempt hearing instead since no amount of coercion is likely to work.