Contempt Law in Wisconsin - Part Two - Case Law Construction

By John DiMotto

In my last blog, I focused on the statutory provisions regarding Contempt of Court in Chapter 785. Today, I want to focus on how appellate courts have construed the statutory law.

In Evans v. Luebke, 267 Wis.2d 596 (Ct. App. 2003), the Court stated that contempt power is an inherent judicial power, one that does not necessarily derive from legislative mandate and which inheres in the definition of a court. However, if a statute prescribes the procedure in prosecution of contempt, or limits the penalty, the statute controls.

In Getka v. Lader, 71 Wis.2d 237 (1976), the Court recognized that the Wisconsin Legislature has given to every court and every judge in the State of Wisconsin, the power to punish a person for not following a court order via contempt. However, the "thing" ordered to be done must be within t he power of the person so ordered.

In the case In re: Adam's Rib, 39 Wis.2d 741 (1968), the Court stated that the power to punish for contempt is to be used sparingly and should not be used arbitrarily, capriciously or oppressively and that whether a person who is under an order to do a "thing" must have it within the person's capability. At a contempt hearing, the burden is on the alleged contemnor to give a satisfactory explanation as to why he/she failed to comply with the court order.

In O'Connor v. O'Connor, 48 Wis.2d 535 (1970), the Court stated that it has long been settled in Wisconsin, that a person cannot be held in contempt of court for failing to comply with an order unless it is willful and contemptuous. If the refusal is to pay money, it cannot be as the result of an inability to pay.

In Staples v. Staples, 87 Wis. 592 (1894), the Court stated that were an inability to pay is willfully brought about by a person himself/herself with the intent to avoid making a payment, the refusal becomes contumacious and the inability so resulting will not purge the person of the contempt.

In Schroeder v. Schroeder, 100 Wis.2d 625 (1981), the Court stated that a sentence to jail for a civil contempt is not to punish for not obeying the court's order but rather to enforce the private right of one of the parties to the action.

In Frisch v. Henrichs, 304 Wis.2d 1 (2007), the Court stated that a purge condition and sanction can be the same and that when a purge condition is outside compliance with the original court order it must serve remedial aims, the contemnor must be able to do it and the condition must be reasonably related to the nature of the contempt.

In City of Wisconsin Dells v. Dells Fireworks Inc., 197 Wis.2d 1 (Ct. App. 1995), the Court stated that courts may impose remedial sanctions for the purpose of termination a continuing violation of a court order.

In Carney v. CNH Health and Welfare Plan, 305 Wis.2d 443 (Ct. App. 2007), the Court stated that an order which requires specific conduct to do or to refrain from doing can be enforced by contempt. The specific term "enjoin" or "injunction" is not necessary before a court can exercise contempt powers.

In State ex rel N.A. v. G.S., 156 Wis.2d 338 (Ct. App. 1990), the Court stated that the review of a trial courts exercise of contempt power is under the abuse of discretion standard.

In Oliveto v. Crawford Co. Circuit Court, 194 Wis.2d 419 (1995), in addressing a summary

contempt in the presence of the court, the Court stated that summary contempt may be used only if the contumacious act is committed in the actual presence of the court, the sanction must be imposed for purpose of preserving order in the court and it is imposed to protect the authority and dignity of the court and the sanction is imposed immediately after the contempt after allocution.

In Gower v. Circuit Court for Marinette Co., 154 Wis.2d 1 (1990), a summary contempt for actions in the presence of the court case, the Court held that it is to be used only under limited circumstances.

In Shepard v. Outagamie Co. Circuit Court, 189 Wis.2d 279 (Ct. App. 1994), the Court held that intent may be inferred from conduct in determining if an action is willful or intentional.

In State v. Pultz, 206 Wis.2d 112 (1996), the Court held that where the State in the exercise of its police power brings its power to bear on an individual through the use of civil contempt and liberty is threatened, the individual is entitled to counsel, and if indigent, appointment of counsel at public expense.

In Christensen v. Sullivan, 320 Wis.2d 76 (2009), the Court held that a contempt of court must be intentional and the trial court has no discretion to impose a remedial sanction against a party after their contempt of court had ceased. Remedial contempt is used to terminate a continuing contempt of court.

In Meyer v. Teasdale, 321 Wis.2d 647 (Ct. App. 2009), the Court held that a contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with a purge condition.

These appellate cases tell us that the contempt powers of the court:

1) Are both inherent and statutory in nature.

2) Are to be used sparingly and only when deemed necessary.

3) Must be exercised to stop a continuing contempt or a contempt in the presence of the court.

4) When exercised must be such that the purge condition is within the reach of the contemnor.

5) Are to be used to promote and achieve Law and Order.