HEADLINE: A QUESTION OF CONTEMPT
BYLINE: BY MARCIA COYLE
DATELINE: WASHINGTON (10/30/89; National Law Journal)
The cases of two jailed mothers put the issue of civil contempt reform in the spotlight.
THEY ARE unlikely followers in the tradition of labor chief Samuel Gompers and civil rights leader Martin Luther King Jr. They are two women who, for very different reasons, defied court orders to produce their allegedly abused children and landed in jail.
Twenty-five months of civil incarceration ended in September for Dr. Elizabeth Morgan, who was freed after unusual intervention by Congress. Her civil contempt case generated national headlines and sympathy as she adamantly refused to bring forward her 8-year-old daughter who, she charges, was sexually abused by the child's father.
Not so heralded or sympathetic is the contempt situation of Jacqueline Bouknight, locked up by a Baltimore juvenile court judge in April 1988 for failing to reveal the whereabouts of her 3-year-old son. No one has seen Maurice Bouknight since September 1987 and some authorities believe he is dead, perhaps at his mother's hand. In a case to be argued before the Supreme Court Nov. 7, Ms. Bouknight, still incarcerated, claims that compelling her to produce her son violates her Fifth Amendment right against self-incrimination. Baltimore City Department of Social Services v. Bouknight, 88-1182.
Both women were at the receiving end of one of the court's most powerful and useful tools: civil contempt. The length of their imprisonments has sparked a public debate touching the inherent dilemma in the use of this tool -- when does civil contempt lost its coercive effect and become punishment?
And for proponents of statutory caps on time served under civil contempt, that public debate, primarily spurred by Dr. Morgan's case, represents a quickly disappearing opportunity to bring guidance and coherence to a complicated and sometimes abused area of the law.
Under the doctrine of civil contempt, a judge may fine or imprison someone who refuses to obey a court order. The purpose is coercive: The court uses civil contempt to force an individual to do something. By contrast, criminal contempt is punishment for past conduct.
Civil contempt demands very little due process, only notice to the individual and a hearing Criminal contempt, notes Judge Peter J. Messitte of the Montgomery County Circuit Court in Rockville, Md., is much more protective of the contemnor. In situations in which incarceration may last longer than six months, there is a right to a jury trial as well as notice, hearing and the opportunity to call and cross examine witnesses.
The relatively little due process attached to civil contempt often is justified on grounds that individuals in contempt can resolve their situations at any time by complying with the judge's order. Those people, it is said, "carry the keys of their prison in their own pockets."
There also are distinctions between constructive and direct contempt. The former occurs outside the presence of the judge and cannot be punished summarily, explains Judge Messitte. The latter takes place in the judge's presence.
"You have to make these distinctions when dealing with contempt and when you put all of those categories together, you often have a problem seeing where your case fits," says the judge.
There also comes a point when civil contempt no longer has any coercive potential, according to Judge Messitte. The need for compliance may end, perhaps because someone else produces the evidence, or in a few rare cases, most notably child-custody fights, it becomes clear that the individual in contempt simply never will comply. In the latter situation, a judicially developed doctrine requires courts to release the uncoercible person.
BY THE TIME Elizabeth Morgan was approaching her two-year mark in the District of Columbia jail, her supporters and some legal scholars had little patience for the technical distinctions in contempt and little faith in the judicial doctrine of release.
Although the local appellate courts appeared close to resolving her situation, Congress began to move legislation that would place a statutory cap on the length of time an individual could be imprisoned for civil contempt in District of Columbia child custody cases.
The House bill, sponsored by Rep. Frank R. Wolf, R-Va., began as Morgan-specific legislation but ultimately applied to civil contempt in general in the district. The Senate bill, sponsored by Sen. Orrin G. Hatch, R-Utah, remained restricted to D.C. custody cases. Congress enacted the narrow version limiting imprisonment to 12 months in custody cases.
"Some of the witnesses at the hearings and members of Congress didn't understand what the hell was going on," recalls Prof. Doug Rendleman of Washington and Lee University School of Law, co-author of a book on injunctions. "That is no reflection on them. The law is extremely technical and hard to sort out."
Although Congress engaged in "legislative adjudication," it was proper for Congress to get involved in the Morgan case, says Professor Rendleman, because the checks within the judicial system failed.
"It would have been much better to have capped coercive contempt generally and, even better, to have enacted a comprehensive code of contempt," he says. "But the pressure to do something about Morgan and to get unanimity within Congress meant they trimmed the broader parts off."
When the Senate bill came out of committee, one senator, Warren B. Rudman, R-N.H., voiced concerns shared by a number of his colleagues: "Since it makes no legal sense to assert that judges presiding in custody cases should have less power to enforce their orders than judges in all other cases, the bill is a disturbing precedent in the area of civil contempt."
MEANWHILE, Representative Wolf recently wrote to the nation's governors urging them to use the new law as a model for enacting contempt caps in their states. In an attempt to address the concerns of some congressmen, the new federal law has a three-year "sunset" provision that will force Congress to revisit the issue; it also calls on the Senate Judiciary Committee to conduct a national study of the use of civil contempt.
Problems in civil contempt "ebb and flow" with problems in society, says Prof. Robert J. Martineau, a contempt expert and associate dean of the University of Cincinnati College of Law. Federal law on injections stems from the use of contempt in labor strikes, he says, noting how the United Mine Workers was almost forced into bankruptcy four decades ago when its leaders were jailed and the union was assessed heavy fines.
Over the years, he adds, there have been many controversial contempt cases involving civil rights leaders, abortion protesters and anti-establishment revolutionaries.
"The Morgan case is not the usual problem," says Professor Martineau. "People usually do not sit in jail indefinitely. Ordinarily the problem involves conduct in the courtroom."
But contempt law is "sorely in need" of an overall, dispassionate review, preferably without the pressure of a controversial case, such as the Morgan situation.
The professor says there are many statutes on contempt, and in every state there is confusion among judges and lawyers about the law.
"The contempt power is so extensive you don't know the circumstances under which it will be used," he says. "It is an inherent and central power of the court, which is why it is so important to understand when and how it can be used."
Under federal law, there is an 18-month cap on civil incarceration for recalcitrant witnesses in grand jury investigations. Two states have caps -- Wisconsin, six months, and California 12 months.
Professor Martineau helped Wisconsin enact its civil contempt limit. "We were simply rewriting the entire contempt statute and felt it was offensive to have the potential to keep a person in jail, theoretically, for the rest of his life," he recalls. "We also agreed that after six months in jail, keeping someone there longer wouldn't do much good."
Professor Rendleman and another contempt expert, Ronald Goldfarb of D.C.'s Goldfarb, Kaufman & O'Toole, also support a six-month, general cap. "I don't believe in any government official having the summary power to lock up someone forever," says Mr. Goldfarb. The contempt power is abused, he adds, in the very cases in which it should be limited, primarily those involving news reporters and lawyers.
BUT SITUATIONS such as the Morgan case are so rate that they cannot justify limiting an essential tool of the court, say many trial judges.
"These situations only arise when there is an extreme set of circumstances," explains Judge Maxwell Davison of the Lehigh County Common Pleas Court in Allentown, Pa. "Consequently, the person who is going to resist will sit out whatever the cap is."
In child custody cases, the court's order is based on what is in the best interests of the child, says Judge Davison, a member of the executive committee of the National Conference of State Trial Judges. "This is not done to punish. Why should we carve out an exception for the recalcitrant parent when we don't do it for anyone else?"
In roughly 99.9 percent of civil contempt cases, people comply with court orders, say Judge Davison and others. The judge and many of his colleagues believe there are sufficient safeguards in the system -- due process and appeal -- to protect the individual in contempt. In Maryland, notes Judge Messitte, the majority of reported appellate contempt cases are reversals.
Despite the safeguards and the judicial doctrine of release, lawmakers "may want to make it clear there ought to be a limit when the coercive potential is lost," Judge Messitte says. "But you don't want to make the time so short that there is no coercive potential."
Professor Rendleman says he believes just one person such as Elizabeth Morgan is enough to justify limits on imprisonment. Legislating reforms, he adds, is not easy because judges view contempt as critical to maintaining order in the courtroom and they "weight in" on any legislative involvement in that area.
"There's always interest in tackling contempt, but it's very difficult to get anything through the legislatures," he says. "It's the land of big toes and thin shoes."
GRAPHIC: Picture 1, CATALYST FOR CHANGE: Dr. Elizabeth Morgan was held in a Washington D.C., prison for 25 months of civil incarceration as she adamantly refused to divulge the whereabouts of her young daughter. Her case generated national sympathy, and she was released after unusual intervention by Congress. Susan Steinkamp/SABA; Picture 2, VARIABLE: Robert J. Martineau says problems in civil contempt 'ebb and flow' with problems in society.; Picture 3, DIFFICULT: Doug Rendleman says it's easy to understand all the confusion -- the law is extremely complex.
Coyle, Marcia. "A Question of Contempt." National Law Journal, October 30, 1989.