2.2Distinguishing Civil and Criminal Contempt
“[C]ontempts are ‘neither wholly civil nor altogether criminal . . . .’” In re Contempt of Dougherty, 429 Mich 81, 91 (1987), quoting Gompers v Bucks Stove & Range Co, 221 US 418, 441 (1911). “Although it may be difficult to distinguish between criminal and civil contempts, this distinction is often critical since a criminal contempt proceeding requires some, but not all, of the due process safeguards of an ordinary criminal trial[1] and because the purpose sought to be achieved by imprisoning a civil contemnor (coercion) varies significantly from the purpose of imprisoning a criminal contemnor (punishment).” In re Contempt of Dougherty, 429 Mich at 91.
Both civil and criminal contempt may be punished by imprisonment, a fine, or both.2 MCL 600.1715(1). There are three different sanctions available to a court to remedy or redress contemptuous behavior:
•criminal punishment to vindicate the court’s authority;
•civil coercion, to force compliance with an order; and
•compensatory relief to the complainant. Id at 98.
“Another test of whether the contempt is civil or criminal involves consideration of subsequent conduct–an ‘after the fact’ determination. It may be summarized: Where the contemnor’s conduct of noncompliance with the court order has altered the status quo so that it cannot be restored or the relief intended becomes impossible, there is criminal contempt; however, where the contemnor’s conduct of noncompliance with the court order is such that the status quo can be restored and it is still possible to grant the relief originally sought, there is civil contempt.” Harvey v Lewis, 10 Mich App 709, 716 (1968).
See also the Michigan Judicial Institute’s table comparing civil and criminal contempt.
Civil contempt sanctions are “‘remedial, and for the benefit of the complainant.’” In re Contempt of Dougherty, 429 Mich at 93, quoting Gompers, 221 US at 441. The court may also order the contemnor to pay any fines, costs, and expenses of the proceedings. See MCL 600.1715(2). In civil contempt proceedings, the contemnor must be given an opportunity to purge himself or herself of the contempt by complying with the conditions set by the court to remedy the situation. Casbergue v Casbergue, 124 Mich App 491, 495 (1983). See also In re Gorcyca, 500 Mich 588, 619-620 (2017) (where the trial court found three children in contempt and stated that the children would no longer be in contempt once they participated in court-ordered parenting time with their father, and that the father would inform the court when the children complied, the trial court committed legal error by “unlawfully delegating to the father the discretion to determine when any of the children had purged themselves of contempt[;]” thus, the order of contempt “left the impression that only the father had the ‘keys to the jailhouse’”).
1.Compensatory Civil Sanctions
Compensatory civil contempt sanctions are required where the misconduct has caused an actual loss or injury to a person. MCL 600.1721. See also In re Contempt of Dougherty, 429 Mich at 97.
“Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss, and his [or her] right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy.”3 United States v United Mine Workers, 330 US 258, 304 (1947).
Compensation under MCL 600.1721 “may include attorney fees that occurred as a result of the other party’s contemptuous conduct.” Taylor, 277 Mich App at 100 (quotation marks and citation omitted).
2.Coercive Civil Sanctions4
When determining whether a coercive sanction may be imposed, the court should consider “whether there is some act that can be coerced by the sanction so that the contemnor’s performance of the act will put him [or her] into compliance with the underlying order.” In re Contempt of Dougherty, 429 Mich at 99. The trial court must also consider “the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.”In re Moroun, 295 Mich App 312, 337 (2012) (quotation marks and citations omitted).
Coercive civil contempt sanctions are only appropriate “where the contemnor, at the time of the contempt hearing, is under a present duty to comply with the order and is in present violation of the order.” In re Contempt of Dougherty, 429 Mich at 99. See also In re Contempt of Pavlos-Hackney, 343 Mich App 642, 672 (2022) (holding that coercive sanctions were appropriate and the trial court properly refused to accept a promise not to continue violating the court order where the contemnor had an “extensive history of [publicly] vowing to disobey the court’s orders”). A coercive civil sanction is not appropriate if the defendant is either in actual compliance with the order or under no present duty to comply at the time of the contempt hearing. In re Contempt of Dougherty, 429 Mich at 100. “In such a case the court is limited to imposing a criminal sanction, after a properly conducted criminal contempt proceeding, or issuing a civil contempt order compensating the complainant for actual losses.” Id.
“[I]mprisonment for civil contempt is properly ordered ‘where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character.’” In re Contempt of Dougherty, 429 Mich at 93, quoting Gompers, 221 US at 442. Unlike criminal contempt cases where the court cannot imprison the contemnor for more than 93 days, there is no corresponding limitation “in those cases where the commitment is for the omission to perform an act or duty which is still within the power of the person to perform[.]” MCL 600.1715(2). “[A] commitment for the omission to perform an act or duty that is within the power of the party to perform is the classical case of civil contempt that permits the use of a coercive sanction.” In re Contempt of Dougherty, 429 Mich at 91-92.
Coercive commitment must end when the contemnor performs the required act or no longer has the ability to perform the act, and has paid all fines, costs, and expenses of the proceedings.5 MCL 600.1715(2). See also Moroun, 295 Mich App at 336 (“Civil contempt imposes a term of imprisonment which ceases when the contemnor complies with the court’s order or when it is no longer within his or her power to comply.”).
The “dichotomy between coercive and punitive imprisonment has been extended to the fine context.” United Mine Workers v Bagwell, 512 US 821, 829 (1994). “A contempt fine accordingly is considered civil and remedial if it either coerces the defendant into compliance with the court’s order, or compensates the complainant for losses sustained.” Id. (alterations and citation omitted). “Where a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge.” Id. (noting that even a very small flat, unconditional contempt fine is criminal “if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance”). Specific fines imposed for each day the contemnor fails to comply with an affirmative court order are clearly coercive and civil because as soon as the order is obeyed, the daily fines are purged. Id. Coercive fines may not be more than $7,500 for each single contumacious act. MCL 600.1715(1). See also In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 718-719 (2000) (holding that MCL 600.1715 unambiguously limits the amount of the fine that may be imposed “for a single act of contempt”).6
Criminal contempt sanctions are imposed to punish for past misconduct and to “vindicate the authority of the court.” In re Contempt of Dougherty, 429 Mich at 93, citing Gompers, 221 US at 441. “[I]mprisonment for criminal contempt is appropriate where ‘the defendant does that which he [or she] has been commanded not to do . . . .’” In re Contempt of Dougherty, 429 Mich at 93, quoting Gompers, 221 US at 442. Imprisonment for criminal contempt operates “‘solely as punishment for the completed act of disobedience.’” In re Contempt of Dougherty, 429 Mich at 93-94, quoting Gompers, 221 US at 442-443. Criminal contempt penalties are unconditional and imposed as punishment for past misconduct; accordingly, the contemnor does not have the ability to purge himself or herself of the contempt. State Bar v Cramer, 399 Mich 116, 128 (1976), abrogated in part on other grounds by Dressel v Ameribank, 468 Mich 557, 562 (2003).
1.Permissible Punishments for Criminal Contempt
Sentencing discretion for criminal contempt is limited by statute to a fine of not more than $7,500, imprisonment not to exceed 93 days, or both. MCL 600.1715(1). The court may also place a contemnor on probation in the manner provided for persons guilty of a misdemeanor. Id.
However, some statutes and court rules may impose more specific limits. See, e.g., MCR 3.708(H)(5)(a); MCL 600.2950(23); MCL 600.2950a(23) (limiting the fine for contempt to $500 in the context of contempt for violation of a PPO); MCL 552.633(2) (limiting the fine for contempt to $100 in the context of contempt for failure to pay child or spousal support).
“[A] court may not deprive a prisoner of good-time credit to which the prisoner may be entitled under statute before that prisoner has even begun serving the term of imprisonment.” ARM v KJL, 342 Mich App 283, 302-303 (2022) (quotation marks and citation omitted) (holding that the sentence credit statute was violated where the trial court’s sentencing orders specified that the respondent was not entitled to credit on the basis of a local sheriff’s policy that categorically prohibited certain offenders from earning good-time credit, including offenders incarcerated for contempt of court).
Additionally, MCR 3.708(H)(5) “grants the trial court discretionary authority to impose other conditions to a PPO in connection with its sentence . . . after a respondent is convicted of criminal contempt.” In re SB, ___ Mich App ___, ___ (2024). “[T]he dates specifying when a PPO is in effect constitute a ‘condition’—i.e., a stipulation, provision, prerequisite, or qualification—to the PPO. And a change to or extension of a PPO’s expiration date is thus an ‘other condition’—i.e., a different stipulation, provision, prerequisite, or qualification—to the PPO that the trial court may impose at sentencing under MCR 3.708(H)(5).” SB, ___ Mich App at ___. “Construing MCR 3.708(H)(5) as permitting the trial court to extend the PPO at sentencing is reasonable because the respondent’s guilt has been established, and the trial court has been fully apprised of the situation between the parties such that it can readily evaluate the need to impose other conditions to the PPO, such as, in this case, extending its expiration date.” SB, ___ Mich App at ___ (quotation marks omitted).7
2.Compensatory Sanctions for Criminal Contempt
“MCR 3.708(H)(5) explicitly provides different punishments for criminal-contempt cases involving a PPO violation and civil-contempt cases involving a PPO violation . . . .” LAC v GLS, ___ Mich App ___, ___ (2024). “In the case of civil contempt, [MCR 3.708(H)(5)(b)] explicitly adopts the sanctions provided in MCL 600.1715 and MCL 600.1721.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). Additionally, “[b]oth statute and court rule provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” Id. at ___. “Taxation of costs is generally not allowed absent authority flowing from a statute or court rule.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). “There is nothing in the sentencing scheme in MCR 3.708(H)(5) that expresses an abrogation of this general rule in the case of contempt as a result of a PPO violation.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). “Therefore, criminal contempt sanctions under [MCR 3.708(H)(5)(a)] do not include the indemnification provisions of MCL 600.1721.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). Thus, “the trial court erred when it ruled that attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO.” Id. at ___.
A compensatory sanction must be ordered to reimburse any person who has suffered an actual loss or injury as a result of contumacious conduct. MCL 600.1721.
MCL 600.1721 applies to both criminal and civil contempts. Taylor v Currie, 277 Mich App 85, 100 (2007). “Because MCL 600.1721 does not make a distinction between civil and criminal contempt, but rather requires a trial court to order a contemnor to indemnify any person who suffers an ‘actual loss or injury’ caused by the contemnor’s ‘misconduct,’ we hold that the indemnification sanction mandated by MCL 600.1721 applies even when a trial court imposes a punitive (i.e., criminal) sanction on a contemnor.” Taylor, 277 Mich App at 100. However, because compensation is a type of civil contempt sanction, enforcement under MCL 600.1721 is accomplished by way of a civil contempt proceeding. In re Contempt of Dougherty, 429 Mich at 97, 100, 102.
“Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss, and his [or her] right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy.”8 United States v United Mine Workers, 330 US 258, 304 (1947). In other words, compensatory fines are awarded only to the prevailing party’s benefit. See id.
Compensation under MCL 600.1721 “may include attorney fees that occurred as a result of the other party’s contemptuous conduct.” Taylor, 277 Mich App at 100 (quotation marks and citation omitted). However, “only MCR 3.708(H)(5)(b) permit[s] the award of costs as set forth in MCL 600.1715 and MCL 600.1721 for civil contempt.” LAC, ___ Mich App at ___. “Therefore, criminal contempt sanctions under [MCR 3.708(H)(5)(a)] do not include the indemnification provisions of MCL 600.1721.” LAC, ___ Mich App at ___ (quotation marks and citation omitted) (holding that “the trial court erred when it ruled that attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO”).9
“In a criminal contempt proceeding, a willful disregard or disobedience of a court order must be clearly and unequivocally shown[.]” DeGeorge v Warheit, 276 Mich App 587, 592 (2007). “Willfulness . . . implies a deliberate or intended violation, as distinguished from an accidental, inadvertent or negligent violation.” Vaughn v City of Flint, 752 F2d 1160, 1168 (CA 6, 1985) (quotation marks and citations omitted).10 See also People v MacLean, 168 Mich App 577, 579 (1988) (“A wilful disregard consists of an act, omission, or statement tending to impair the authority or impede the functioning of the court.”).
There was insufficient evidence of willfulness where the defendant moved to withdraw his guilty plea, stating that he lied to the court by misstating the facts to have his plea accepted, and testimony from the defendant’s former trial attorney at the show cause hearing established that the defendant denied committing the crime to his attorney but pleaded guilty on his advice that the case was “unwinnable and impossible and that the plea bargain would achieve the best possible result[.]” People v Little, 115 Mich App 662, 664-665 (1982). The Court held that it could not “conclude beyond a reasonable doubt that the defendant’s statements at the plea-taking proceeding were motivated by bad faith rather than the assortment of personal reasons that the defendant suggests.” Id. at 665.
Willfulness is not a necessary element of civil contempt. In re Contempt of United Stationers Supply Co, 239 Mich App 496, 501 (2000). In a civil contempt case, the court need only find that the alleged contemnor “was neglectful or violated [a] duty to obey an order of the court.” Id.
Committee Tip:
In order to hold a person in civil contempt, the finding that the alleged contemnor was neglectful or violated a duty to obey a court order should be paired with a finding that the alleged contemnor had the ability to comply with the court order. See generally MCL 600.1715(2).
1.Criminal Contempt
In cases of criminal contempt, it must be proved beyond a reasonable doubt that the individual engaged in a willful disregard or disobedience of the authority or orders of the court. DeGeorge, 276 Mich App at 592. See also MCR 3.708(H)(3) (requiring proof beyond a reasonable doubt in criminal contempt cases for alleged violations of personal protection orders). “A party charged with criminal contempt has a presumption of innocence and a right against self-incrimination.” DeGeorge, 276 Mich App at 592.
Se also People v MacLean, 168 Mich App 577, 579 (1988) (“The elements necessary to support a conviction of criminal contempt are (1) a wilful disregard or disobedience of the order of the court, and (2) that the contempt is clearly and unequivocally shown.”)
“[I]n adjudicating criminal contempt for violating a PPO based in part on stalking allegations, it was not improper for the trial court to consider respondent’s pattern of conduct from a totality-of-the-circumstances perspective in concluding that petitioner established, beyond a reasonable doubt, that respondent violated the PPO by stalking, or by otherwise engaging in conduct that impaired petitioner’s environment.” In re SB, ___ Mich App ___, ___ (2024). Thus, “in determining whether respondent’s conduct constituted ‘stalking,’ conduct plainly prohibited by the PPO, it was appropriate for the trial court to evaluate the combined effect of respondent’s ‘repeated or continuing acts’ to determine, beyond a reasonable doubt, whether they rose to the level of a ‘willful pattern of conduct involving repeated or continuing harassment’ that ‘would cause a reasonable individual to feel terrorized, frightened, intimidated, threatened, harassed, or molested’ and that actually caused petitioner to feel that way.” Id. at ___, citing MCL 750.411h(1)(e).
2.Civil Contempt
Caselaw has not clearly set out the standard of proof in civil contempt cases. Many cases apply a “clear and unequivocal” evidence standard. In re Contempt of Robertson, 209 Mich App 433, 439 (1995); In re Contempt of Calcutt, 184 Mich App 749, 757 (1990). See also In re Moroun, 295 Mich App at 323-324 (noting twice that the trial court found “clear and unequivocal evidence” of contempt). However, the preponderance of the evidence standard has also been applied. Porter v Porter, 285 Mich App 450, 457 (2009); In re Contempt of Auto Club Ins Ass’n, 243 Mich App at 712.
Additionally, MCR 3.708(H)(3) applies a clear and convincing evidence standard in the context of civil contempt proceedings after an alleged violation of a personal protection order.
The following cases examine whether a contempt proceeding or sanction is properly characterized as civil or criminal:
•The actions were properly characterized as civil contempt proceedings where the contemnors were sentenced to imprisonment for two years for refusing to answer questions in front of a grand jury because the sentence contained the proviso that the contemnors would be released if they answered the questions before the two-year sentence ended. Shillitani v United States, 384 US 364, 365-368 (1971). The Court reasoned that the purpose of the imprisonment was to compel the contemnors to obey the orders to testify because the contemnors carried “the keys of their prison in their own pockets,” and if they “had chosen to obey the order they would not have faced jail.” Id. at 368 (quotation marks and citations omitted).
•The Court rejected the defendant’s argument that he should have been charged with civil contempt rather than criminal contempt where the defendant took almost eight months to return hundreds of files he was ordered to return immediately, and further attempted to take additional files, stating that “he could do anything he wanted to,” after the court ordered the defendant to return all the files. In re Contempt of Rapanos, 143 Mich App 483, 496-497 (1985). The Court concluded that the criminal contempt charge was proper because the “defendant’s conduct constituted an affront to the dignity of the court[,]” and because the defendant’s conduct impaired business operations of a company and delayed preparation of a civil lawsuit. Id. at 497-498 (noting that while the defendant ultimately returned all the files in question, the status quo could not be restored because of the defendant’s delay in returning the files).
•The trial court improperly imposed civil contempt sanctions on the defendants where the defendants had violated an injunction in the past, but were not in current violation of the injunction; rather, the defendants simply refused to promise to obey the injunction in the future. In re Contempt of Dougherty, 429 Mich at 102-103. The Court explained that the trial court could not sanction the defendants with coercive civil sanctions and that under these circumstances, the court was limited to holding the defendants in criminal contempt to punish them for their past violations or to the imposition of compensatory sanctions for any actual damages. Id. (noting that there was no act that could be coerced to put the defendants into compliance with the injunction when the injunction prohibited trespassing and the defendants were not trespassing at the time of the contempt hearing; thus, any coercive sanction would accomplish nothing).
•After several unions were found in contempt for repeated violations of a labor injunction, the trial court imposed determinate fines of $20,000 or $100,000 (depending on whether violence was involved) that would be levied for future contempts; the trial court held that these fines were civil. United Mine Workers, 512 US at 824, 836-837. The issue on appeal was whether the fines were coercive civil or criminal sanctions. Id. at 834. The Court held that the fines were criminal because “[t]he union’s ability to avoid the contempt fines was indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his [or her] behavior to the law. The fines are not coercive day fines, or even suspended fines, but are more closely analogous to fixed, determinate, retrospective criminal fines which petitioners had no opportunity to purge once imposed.” Id. at 837. Accordingly, the Court declined “to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law.” Id. The Court noted that additional considerations further supported the finding that the fines were criminal: “The union’s sanctionable conduct did not occur in the court’s presence or otherwise implicate the court’s ability to maintain order and adjudicate the proceedings before it. Nor did the union’s contumacy involve simple, affirmative acts . . . . Instead, the Virginia trial court levied contempt fines for widespread, ongoing, out-of-court violations of a complex injunction. In so doing, the court effectively policed petitioners’ compliance with an entire code of conduct that the court itself had imposed. The union’s contumacy lasted many months and spanned a substantial portion of the State. The fines assessed were serious, totaling over $52 million. Under such circumstances, disinterested factfinding and evenhanded adjudication were essential, and petitioners were entitled to a criminal jury trial.” Id. at 837-838.
•Where the defendant “had been discharged in bankruptcy, and [the] plaintiff either had received or no longer needed the records [the] defendant had been ordered to produce,” the contempt sanctions were criminal. In re Contempt of Rochlin, 186 Mich App 639, 648 (1990). The Court held the proceeding was criminal because “the trial court’s purpose in imposing sanctions was to remedy acts which constituted an imminent threat to the orderly administration of justice[.]” Id. (quotation marks omitted). Further, the trial court’s “intent was to punish defendant for his past failure to produce the records, not to coerce him into producing the records at the time of the contempt hearing.” Id. (noting that the defendant could no longer comply with the court order to produce records or pay damages).
•The Court determined that contempt was criminal where the trial court made no indication that payment of a court-ordered settlement would purge the contempt and trigger the release of the contemnor from detention. In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 715-716 (2000). The Court reasoned that despite the fact the ordered payment was to be made to the opposing party, the contempt order was in no way discharged simply by complying with the order. Id. The Court further explained that the sanction must be criminal when the contempt orders “showed an intent to punish [the contemnors] for actions and arguments that the trial court plainly found frustrating and obstructive.” Id. at 715.
•The Court of Appeals disagreed with the plaintiff’s argument “that the contempt proceedings at issue . . . were criminal” where the plaintiff failed on multiple occasions to comply with court-mandated parental visitation for the defendant and also failed to pay court ordered sanctions stemming from the failure to allow defendant to visit their child. Porter v Porter, 285 Mich App 450, 452-455 (2009). The Court reasoned that the trial court’s use of the contempt power was not “to punish [the] plaintiff for past misconduct because its dignity had been offended;” rather, the trial court used the contempt power “to coerce [the] plaintiff into complying with its orders” and therefore, the contempt was civil. Id. at 457 (noting as further evidence of the civil nature of the contempt that defendant had the present ability to “purge herself of the contempt by paying the $1,000 sanction and complying with” the trial court’s visitation orders).
•The Court rejected the contemnor’s argument “that the contempts were necessarily criminal because she was imprisoned only after she pledged to close the restaurant, and her release was conditioned upon [the Michigan Department of Agriculture and Rural Development (MDARD)] verifying that the restaurant was closed, thereby depriving her of the ‘keys to her cell.’” In re Contempt of Pavlos-Hackney, 343 Mich App 642, 671 (2022). Specifically, the contemnor was “undisputedly still operating her restaurant [in violation of the court’s order] at the time she was arrested,” and the restaurant’s “closure at its normal closing time was not evidence of compliance with the court’s order.” Id. at 672. The trial court did not err by imposing coercive sanctions and refusing to accept a promise not to continue violating the court order where the contemnor had an “extensive history of [publicly] vowing to disobey the court’s orders[.]” Id. Further, the “keys to her cell” were not “handed over to MDARD merely because MDARD was charged with confirming that [the restaurant] had not reopened” because “the decision whether to reopen remained vested in [the contemnor].” Id. at 672-673.