Three Types of Contempt – the Classic Formulation

1. Criminal Contempt: Fixed Punishment for a past violation. No getting out of it by doing something, you are being punished for violating the court order

   1. Violations of the court order must be willful to constitute criminal contempt

   2. Prosecuted by the sovereign, with substantially full protections of criminal procedure

      1. Collateral Bar Rule Applies: Offense is complete when defendant willfully violates an injunction, even if the injunction is later reversed. Thus, plaintiff cannot challenge the validity of the injunction in a prosecution for criminal contempt

2. Coercive Civil Contempt: Conditional penalty imposed (or threatened) to coerce compliance (i.e. you go to jail until you comply with the court order)

3. Compensatory Civil Contempt: Compensation or restitution to plaintiff for harm caused or profits gained by the contempt. Essentially a normal damages/restitution action that I triggered not by a violation of the law, but by the violation of a court order

   1. Both forms of civil contempt are prosecuted by civil plaintiff with civil procedure

   2. The contempt (but not the amount of the profits) must be proved by clear and convincing evidence

   3. Violation does not need to have been willful, but if it was not willful, does it make any sense to really try to coerce?

Hybrid Three-Step Contempt

1. Find First Round of Violations, impose some penalty for those: Criminal

2. Threaten Future Penalties: Coercive Civil

3. Enforce what was Threatened: Bagwell analysis

   1. Lower courts (not Bagwell) say the third step is a logical consequence of the previous step, so if previous step is civil then so is this step

   2. Bagwell says to focus on three factors for this third step to determine if criminal or civil (uncertain how many are required to constitute criminal in Bagwell all three were present):

      1. (1) In/Out of Court: In Bagwell, contempt did not happen in the court room (judge did not witness the contempt)

      2. Complexity: Bagwell dealt with continuous violations over a long period of time

      3. Size of the Fine: $52 million fine in Bagwell – sheer fact of the size of this fine for past behavior should make this criminal in Bagwell – Laycock

Rule for Coercive Civil Contempt: Since the legal justification for civil contempt is to force compliance, commitment for that purpose cannot continue if it does not have or has lost its coercive power and thereby become punitive (failed its purpose, impossible, or just stubborn D). Anyanwu v. Anyanwu

• Standard of review whether there is a “substantial likelihood” that continued incarceration would accomplish the purpose of casing the person confined to comply with...