3.3Procedural Due Process Requirements
An alleged contemnor is entitled to procedural due process in cases of indirect contempt; cases of direct contempt may be addressed immediately using a summary procedure. See MCL 600.1711(2) (requiring proof of the facts charged and opportunity to defend); MCL 600.1701(a) (authorizing summary proceedings); MCL 600.1711(1) (authorizing summary proceedings). Accordingly, the court must first ask whether the contempt is direct or indirect. See Chapter 2 for a detailed discussion of direct and indirect contempt.
If the contempt is indirect, the level of due process required is dictated by whether the contempt is criminal or civil. See, e.g., Porter v Porter, 285 Mich App 450, 456-457 (2009) (discussing due process requirements in criminal and civil contempt proceedings). See Section 2.2 for a detailed discussion of criminal versus civil contempt.
“What process is due in a particular proceeding depends on the nature of the proceeding, the risks involved, and the private and governmental interests that might be affected.” Ferranti v Electrical Resources Co, 330 Mich App 439, 448-449 (2019).
See also the Michigan Judicial Institute’s flowchart depicting due process requirements.
A.Due Process Requirements in Indirect Civil Contempt Cases
“[I]n a civil contempt proceeding, the accused must be accorded rudimentary due process, i.e., notice and an opportunity to present a defense, and the party seeking enforcement of the court’s order bears the burden of proving by a preponderance of the evidence that the order was violated.” Porter, 285 Mich App at 456-457.
Accordingly, caselaw has held that in a civil contempt proceeding the alleged contemnor must be:
•informed of the nature of the offense and given notice of the charges;
•afforded a hearing regarding the charges; and
•given a reasonable opportunity to prepare and present a defense. In re Collins, 329 Mich 192, 196 (1950); In re Contempt of Robertson, 209 Mich App 433, 438 (1995).
It is possible that notice of the possibility of incarceration is required in an indirect civil contempt proceeding when applicable. See Cassidy v Cassidy, 318 Mich App 463, 500-509 (2017). In Cassidy, the defendant in a civil contempt proceeding argued that “he was denied due process when the trial court ordered him to jail when he had no prior notice[ of the possibility of jail time] and when the trial court’s written order for contempt contained harsher terms than what the trial court had verbally indicated at the hearing.” Id. at 500. The Court noted that the defendant was represented by counsel and had the present ability to pay his obligations. Id. The Court concluded that the defendant was not denied due process because the record clearly indicated that the “defendant was made well aware that incarceration was a possible sanction if he was found in contempt of court.” Id. at 506, 509 (“There is no merit to defendant’s claim that he was deprived of due process[; a] rudimentary review of the record reveals that defendant feared incarceration and, as such, was clearly aware that incarceration was a possibility.”). The Court further rejected the defendant’s claim that the trial court’s verbal order conflicted with its written order. Id. at 509-510 (noting that “to the extent that the trial court’s oral pronouncement varied form the actual order, the [written] order controls”).
See also the Michigan Judicial Institute’s checklist describing indirect civil contempt proceedings.
B.Due Process Requirements in Indirect Criminal Contempt Cases
“[C]riminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings,” including protection against double jeopardy, notice of charges, assistance of counsel, the ability to present a defense, the privilege against self-incrimination, and a right to proof beyond a reasonable doubt. United Mine Workers v Bagwell, 512 US 821, 826 (1994) (quotation marks and citations omitted). See also People v Johns, 384 Mich 325, 333 (1971) (holding that a “conviction for criminal contempt can be sustained only upon a record which shows compliance with the procedural safeguards established for the prosecution of any other crime of equal gravity”); Porter, 285 Mich App at 456 (noting that a person charged with criminal contempt “is presumed innocent, enjoys the right against self-incrimination, and the contempt must be proved beyond a reasonable doubt”).
Accordingly, caselaw holds that in a criminal contempt proceeding the alleged contemnor:
•must be presumed innocent and proven guilty beyond a reasonable doubt;
•must be informed of the nature of the charged offense(s) and given notice of the specific offense(s) with which he or she is charged;
•has the right against self-incrimination;
•must be afforded a hearing regarding the charges, including the opportunity to produce witnesses;
•must be given a reasonable opportunity to prepare and present a defense; and
•must be given reasonable time to secure the assistance of counsel. Ferranti v Electrical Resources Co, 330 Mich App 439, 448 (2019); In re Collins, 329 Mich at 196; In re Contempt of Henry, 282 Mich App 656, 672 (2009); DeGeorge v Warheit, 276 Mich App 587, 592 (2007).
While a person charged with criminal contempt must be informed of the specific offenses with which he or she is charged; “the charges need not be set forth in the form and detail of a criminal information . . . .” In re Contempt of Henry, 282 Mich App at 672-673 (quotation marks and citation omitted). See also In re Contempt of Rochlin, 186 Mich App 639, 648-649 (1990) (reversing the defendant’s criminal contempt conviction where the defendant was not given notice of one of the charges until the plaintiff’s opening statement).
Generally, there is no right to a jury trial in contempt cases; however, the accused does have a right to a jury in “serious” criminal contempt cases. People v Antkoviak, 242 Mich App 424, 464 (2000). See Section 3.14 for a detailed discussion.
In finding a respondent guilty of criminal contempt for violating a personal protection order (PPO), “the trial court did not violate respondent’s due process rights or otherwise abuse its discretion by considering the totality of the circumstances and determining that his conduct violated the PPO beyond a reasonable doubt.” In re SB, ___ Mich App ___, ___ (2024). “[I]t 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.” Id. at___.
“While Michigan courts have recognized that there is no general constitutional right to discovery, it is well-established that disclosure of exculpatory material and impeachment evidence is mandated by due-process principles.” Ferranti, 330 Mich App at 448 (citations omitted). “[T]he nature of criminal contempt, the necessity for due process, and the possibility of imprisonment as a penalty warrant application of the court rules governing discovery, MCR 6.201.” Ferranti, 330 Mich App at 450. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 9 for a detailed discussion of discovery in criminal cases.
See also the Michigan Judicial Institute’s checklist describing indirect criminal contempt proceedings.
C.Reasonable Opportunity to Prepare a Defense
Parties charged with both civil and criminal contempt must be given a reasonable opportunity to prepare a defense. See, e.g., In re Collins, 329 Mich at 196.
What constitutes a reasonable opportunity to prepare a defense “must be viewed in the context of the entire situation.” Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 212-213 (1966) (considering the seriousness of the charges and the amount of time allowed for trial preparation, including adjournments). See also Fraternal Order of Police, Lodge No 98 v Kalamazoo Co, 82 Mich App 312, 316-317 (1978) (finding that the defendant was not given a reasonable opportunity to prepare a defense where he was notified the evening before the date of the contempt hearing of the contempt charges, and noting that the fact that the defendant may have anticipated the legal proceedings was not a sufficient reason to deny him adequate time to prepare especially where he did not believe he was in violation of the court’s order and that there was no evidence that the matter needed to be resolved immediately in order to protect the public interest).
There is no due process violation where the contemnor had sufficient notice and time in which to prepare a defense, but was unprepared at the hearing. DeGeorge, 276 Mich App at 593-594 (the contemnor failed to secure any witnesses to testify). In DeGeorge, the contempt hearing was held more than two months after the contemnor received notice of the contempt motion, and more than one month after the contemnor filed his memorandum in opposition to the motion. Id. at 593. The Court concluded that the contemnor’s failure to ready himself for the hearing, despite having an adequate amount of time to do so, did not offend the contemnor’s due process rights. Id. at 594. See also In re Contempt of Pavlos-Hackney, 343 Mich App 642, 674-675 (2022) (“the fact that [the contemnor] was not actually prepared to present a defense does not establish a due process violation,” and “[d]ue process guarantees only an opportunity,” and a contemnor’s intentional failure to avail themselves of that opportunity does not establish a due process violation).
A contemnor’s ability to obtain an accurate transcript is a matter of due process. In re Contempt of Pavlos-Hackney, 343 Mich App 642, 666 (2022).
“The correct application of the correct standard of evidentiary proof is also a due-process concern.” Id.