By John DiMotto
Recently, the Republican leadership in the Wisconsin Legislature held the Democratic Senators in contempt for leaving the State and preventing the Senate from taking up the Budget Repair Bill as an appropriations bill. The sanction was to preclude them from voting in committee until the next time the Senate was to be in session. (The same day they imposed the sanction they withdrew it.) Yesterday, SCOTUS heard arguments in Turner v. Rogers as to whether a person facing contempt of court for not paying child support, and facing possible incarceration until payment is made as a purge, has a right to counsel under the due process clause of the 14th Amendment. Given these two recent "contempt" scenarios, I thought this would be a good time to begin a review the law of contempt of court in Wisconsin. This will be a two part review. In today's, blog I will look at Chapter 785 of the Wisconsin Statutes which addresses "Contempt of Court." In my next blog, I will look at how appellate courts have construed the statutory law of contempt.
785.01 sets forth what conduct constitutes contempt of court. First, the conduct must be intentional. Second, it must be:
1) Misconduct in the presence of the court which:
(a) interferes with a court proceeding, or
(b) interferes with the administration of justice, or
(c) impairs the respect due the court.
[This is usually addressed via a summary, punitive sanction, procedure under 785.03(2). See below]
2) Disobedience, resistance or obstruction of:
(a) the authority, or
(b) process, or
(c) order of a court
3) Engaging in certain prohibited action in a family law case under 767.117(1)
4) Refusal of a witness to:
(a) appear, or
(b) be sworn, or
(c) answer a question
5) Refusal to produce a:
(a) record, or
(b) document, or
(c) other object
[2 through 5 are usually addressed via nonsummary, remedial sanction, procedure under 785.03(1)(a) although they can also be subject to nonsummary, punitive sanction, procedure under 785.03(1)(b) or both! See below]
There are two types of Contempt Procedures:
(a) Remedial sanction -- 785.03(1)(a)
(b) Punitive sanction -- 785.03(1)(b)
A remedial sanction may be imposed for the purpose of terminating a continuing contempt of court. An example would be for nonpayment of child support.
A punitive sanction may be imposed to punish a past contempt of court for the purpose of upholding the authority of the court. An example would be where the court entered an order which was blatantly disregarded by a party and where it is brought to the attention of the local DA who considers it so egregious that he/she wants to obtain a criminal conviction and sentence to jail. No remedy is sought, only punishment.
Nonsummary - remedial is utilized when a person aggrieved by a contempt of court seeks a remedy for himself/herself. After notice and hearing a court may impose one of the remedial sanctions in 785.04(1). A remedial sanction must be purgeable since it is to remedy a wrong.
An example would be where the court finds that the failure to pay child support is so serious that it orders 30 days in jail but if the nonpayer makes a lump sum payment within a reasonable time frame the nonpayer can avoid the jail time.
Nonsummary - punitive is a criminal offense which must be brought by a district attorney, attorney general or special prosecutor. It is commenced by the filing of a criminal complaint and all of the provisions of Chapters 967 -973 apply. A punitive sanction does not have to be purgeable since it is to punish not to remedy. The nonsummary, punitive sanction, procedure could be brought on the same facts as the above nonsummary, remedial sanction, procedure. (However, the use of the nonsummary, punitive sanction, procedure by the DA is rarely used due to limited resources.)
2) Summary -- 785.03(2).
The summary procedure is utilized by a judge who may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the court. The punitive sanction must be imposed immediately after the contempt occurs and only for the purpose of preserving order in the court and protecting the authority and dignity of the court. The alleged condemner has the right of allocution before the sanction is imposed. An example of the summary procedure would be a situation where a lawyer would show disrespect for the court in open court.
Remedial sanctions under 785.04(1) that are available to the court include:
1) Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.
2) Imprisonment if the contempt of court is of a type included in 785.01(1)(b) - (d) only so long as the person is committing the contempt of court or 6 months whichever is the shorter period.
3) A forfeiture not to exceed $2000 for each day the contempt of court continues.
4) An order designed to ensure compliance with a prior order of the court.
5) A sanction other than the above sanctions here if the court expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.
Punitive sanctions under 785.04(2)(a) [nonsummary procedure] include:
1) A fine of not more than $5000 for each separate contempt of court, or
2) Imprisonment in the county jail for not more than one year or both for each separate contempt of court, or both.
Punitive sanctions under 785.04(2)(b) include:
1) A fine of not more than $500 for each separate contempt of court, or
2) Imprisonment in the county jail for not more than 30 days for each separate contempt of court, or both.
It must also be noted that a punitive sanction may be imposed for past conduct which was a contempt of court even though similar present conduct is a continuing contempt of court. In other words a party may seek a remedial sanction for a continuing contempt and the State may bring a criminal contempt for past conduct which is still continuing.
While contempt proceedings can be brought in a vast variety of scenarios, the use of contempt is the exception not the rule. Courts attempt to resolve misconduct and disobedience via the exercise of reason as opposed to the exercise of power.
In the next blog, I will examine the case law regarding contempt and how the procedures are actually used.