Classic coercive contempt
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
 BURDEN on CONTEMNOR to prove coercion no longer
operating.
How do judges determine contemnor’s
stubbornness is irrevocable – cont’d
“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)
 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?
Impossibility as a defense to contempt
 Impossibility of compliance with a court order is a defense to
contempt (both criminal and civil coercive).
 “No matter how reprehensible the conduct is it does not warrant
issuance of an order which creates a duty impossible of
performance so that punishment can follow.”
 Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 781 (9th Cir.
1983)
 It is the contemnor’s burden to prove impossibility
 What if the contemnor is partly responsible for why she can’t
comply?
 Courts are unlikely to allow impossibility defense. If contemnor was
originally held in coercive contempt, court will probably hold a new criminal
contempt hearing instead since no amount of coercion is likely to work.
Determining when it is impossible for the
contemnor to comply with the court’s order
 Often it’s just a matter of credibility – does the contemnor’s
story hold up to scrutiny?
 Passage of time can bolster contemnor’s story
 Contemnors’ claims of impossibility that courts did not believe:
 A, who was ordered to turn over thousands of dollars, claimed to
have accidentally flushed it down the toilet
 B, who was ordered to turn over $18,000, claimed to have lost it out
of his pocket while out bird hunting
 Court released him after 8 months in jail
 C, who was ordered to turn over cash, claimed to have lost $2.8
million through bad investments with friends and family
Contempt & the Collateral Bar Rule
o A party who willfully violates an injunction issued by a court of
competent jurisdiction and who is subsequently prosecuted for criminal
contempt cannot defend against contempt charges based on the fact
that the injunction erroneously issued (even if it turns out that the
injunction was erroneous or even unconstitutional).
o Compare position of a criminal D who can raise the invalidity of a law
(especially it’s unconstitutionality) at a criminal prosecution.
o What is the purpose of the collateral bar rule?
o Efficiency (this rule is invoked re provisional injunctions)
o Respect for the court’s authority
o Missouri appears to follow the collateral bar rule – although there are
few reported cases
Exceptions to Collateral Bar Rule
o Lack of Jurisdiction
o An order issued by a court without subject matter and/or personal
jurisdiction is void and can be violated with impunity
o But the collateral bar rule still applies:
o If the court does not clearly lack jurisdiction, or
o If court has expressly reserved jurisdiction to determine its
jurisdiction (even if it turns out later that jurisdiction does not exist)
Jurisdiction
Jurisdiction
Exception
–
Clearly
Lacking
o Assume that a lawsuit is filed in state court regarding a violation of
federal statutory law. The federal statute may preempt state court
jurisdiction but the statutory text is unclear and the federal courts are
split regarding preemption.
o If the state court enjoins X from acting and X later violates the
injunction, can X avoid contempt sanctions if it later turns out that
the state court was pre-empted from exercising jurisdiction?
o NO – the state court did not CLEARLY lack jurisdiction at the time it issued
the injunction so X was still bound to obey the injunction.
Jurisdiction Exception – Jurisdiction to Determine
Jurisdiction
o Hypo:
o Union strikes in violation of NLRA.
o US sues in federal court to enjoin strike. Federal statute precludes federal court
injunctions against strikes with few exceptions none of which applied.
o Union raises the jurisdiction issue. United States (which was acting as employer
at the time) argues that that federal law shouldn’t preclude federal gov’t as
employer from suing in federal court.
o Court continues injunction until it can decide the jurisdictional issue.
o If the union violates the injunction before the court decides the
jurisdictional issue, can it raise lack of jurisdiction as a defense to
criminal contempt if the court later determines there was no
jurisdiction?
o NO – courts have jurisdiction to determine jurisdiction and parties subject to
injunctions cannot violate them during the pendency of a determination
regarding court’s powers.
Exceptions
Defense (?)
-
Constitutional/First
Amendment
o Some state courts recognize exceptions to the collateral bar
rule when the challenge to the injunction’s invalidity is that it
violates the 1A:
o “It is a flagrant denial of constitutional guarantees to balance away
[free speech] principles in the name of “respect for judicial process.”
To preach “respect” in this context is to deny the right to speak at all.
o Ex parte Tucci, 859 S.W. 2d 1, 2 (Tex. 1993)
o California, Texas, Arizona & Wash are prominent states with this
exception
More Exceptions to Collateral Bar Rule
o Transparently Invalid Injunctions
o A transparently invalid injunction is not subject to the collateral bar rule.
o Classic e.g.:
The law on which injunction based was already declared
invalid or injunction was based on law almost identical to law that was
declared invalid.
o Why doesn’t Walker involves this exception?
o Increasingly courts say an injunction is transparently invalid if it violates
“clearly settled law” even if it is not nearly identical to already invalid law
o Delay & Frustration
o If before disobeying an injunction a contemnor tries to challenge it in court
but meets with delay or frustration, she is not subject to the collateral bar
rule. Two questions:
o Does contemnor have the ability to challenge the injunction?
o If NOT, then the collateral bar rule doesn’t apply
o Have they met with delay/frustration?
Miller v. Davis - contempt
• What kind of contempt was Miller seeking to hold Davis in (and
did the court in fact hold her in)?
• Why do you think the court jailed Davis rather than make use of
fines?
• What is the basis of Davis’s impossibility defense? Why doesn’t
it work?
Miller v. Davis - contempt
• Why did the court release Davis from jail?
• Conditions? New order:
• Sept. 21 motion by P to “enforce the order.”
• What does it claim re Davis’s actions?
• What does it seek?
• Why not seek another finding of contempt?