Contempt Citations

Recently I had a consultation with a potential client who had been served with a fairly strange Petition for Rule to Show Cause. This Rule to Show Cause, authored by a fairly well known child’s representative requested that the Court hold the potential client in Indirect Criminal Contempt for disobeying court orders.

The body of the Petition and the Prayer for Relief both requested that the Court enter the Rule instanter and shift the burden of proof from the proponent of the Petition to the potential client. This indicated to me that this well known child’s representative was extremely confused as to the procedural rights of persons charged with indirect criminal contempt versus the procedural rights of persons charged with indirect civil contempt.

First there is the distinction between criminal sanctions for failure to obey a court order and civil sanctions. Criminal sanctions are retrospective in nature. Criminal sanctions seek to punish the contemnor for past acts which he or she cannot now undo. An example of this would be if a Judgment for Dissolution of Marriage provides that the father was to receive the children every Father’s Day. Suppose the mother refused to turn over the children on Father’s Day, June 15, 2008. As this is a past act that the mother cannot undo the proper remedy would be to ask for the Court to adjudicate indirect criminal contempt against the mother to punish her for this past act.

In contrast, if the father was ordered to pay child support and refused to do so, the proper remedy would be a Petition for Rule to Show Cause for Indirect Civil Contempt because the civil sanction, being prospective in nature, would allow the Court to coerce compliance of the father at some point in the future with the threat of being jailed. In indirect civil contempt, the contemnor always holds the “key” to their own jail cell.

The distinction was stated definitively by the Fourth District Appellate Courtin IRMO Betts, 200 Ill. App. 3d 26, 588 N.E. 2d 404 (1990) where the court stated the following:

“Criminal sanctions are retrospective in nature; they seek to punish a contemnor for past acts which he cannot now undo. Civil sanctions are prospective in nature; they seek to coerce compliance at some point in the future. That point might be immediate compliance in open court or whenever the contemnor chooses to use his “key” – namely, compliance to open the jailhouse door” 200 Ill. App. 3d at 46

Simply put, someone that is charged with indirect criminal contempt has no way to purge themselves of contempt because they have already violated the order of the court.

There are also major distinctions between procedural rights of persons charged with indirect civil contempt versus those who are to be charged with indirect criminal contempt.

In indirect civil contempt proceedings the contemnor is only entitled to minimal due process consisting of 1) notice, which needs to be a concise statement of whatever they allegedly did wrong; and 2) an opportunity to be heard. The usual procedure in a contempt proceeding based on indirect civil contempt is for the proponent to bring a Petition for Rule to Show Cause Seeking Indirect Civil Contempt which asks the Court to enter a Rule against the contemnor. The effect of issuing the rule shifts the burden of proof from the proponent to the alleged contemnor. Now the alleged contemnor has to provide proof that, more likely than not, they either did not violate the court order, or, if the order was violated, that said violation was not willful.

Section 505(b) provides for contempt proceedings for failing to comply with an order for child support. The Petition for Rule to Show Cause Seeking Indirect Civil Contempt has to be clear enough to indicate and reference an order for child support and, must contain an adequate description of the facts on which the contempt charge is based.

Evidence, by way of a verified Petition for Rule to Show Cause Seeking Indirect Civil Contempt, of noncompliance of court ordered child support payments makes out a prima facie case for indirect civil contempt. The burden then shifts to the alleged contemnor to show that the non compliance was not willful or that payment was made. See IRMO Hartmann, 305 Ill. App. 3d 338, 712 N.E. 2d 367 (2nd Dist. 1999). The alleged contemnor is not entitled to appointed counsel if he or she is indigent even if the contempt proceeding may result in imprisonment under indirect civil contempt. IRMO Betts, supra. An individual charged with indirect civil contempt is not entitled to a jury trial.

In contrast indirect criminal contempt proceedings must generally conform to the same constitutionally mandated procedural requirements as other criminal proceedings. In other words, the alleged contemnor in an indirect criminal contempt proceeding has the privilege against self incrimination, the presumption of innocence, the right to a jury trial and the right to be proved guilty beyond a reasonable doubt. The alleged contemnor also has the right to be represented by counsel.

Additionally, the Appellate courts have indicated that the correct designation commonly and appropriately used for a petition initiating indirect criminal contempt should be titled a Petition for Adjudication of Criminal Contempt rather than a Petition for Rule to Show Cause. IRMO Betts, supra.

Significantly, because a respondent in an indirect criminal contempt proceeding enjoys the privilege against self incrimination, he or she may not be called by the proponent to testify. IRMO Betts, supra.

Finally, in an indirect criminal contempt proceeding the alleged contemnor has the right to appear by counsel. The failure to allow the alleged contemnor to have an attorney represent them is reversal error. IRMO Betts, supra.

When preparing a Petition for Adjudication of Criminal Contempt the practitioner must realize that the alleged contemnor has these rights and that there is no burden shifting as there is in an indirect civil contempt proceeding.

The Second District Appellate Court, in the case of IRMO Cummings, 222 Ill. App. 3d 943 584 N.E. 2d 900 (1991), reversed the conviction of a wife for indirect criminal contempt when she violated a court order prohibiting third parties being present at the residence while the children of the marriage were there. The trial court had shifted the burden, pursuant to the urging of the proponent of the contempt, to the wife during the hearing.

The Second District Appellate Court stated the following in reversing the trial court’s determination of a finding of indirect criminal contempt:

We disagree with respondent’s assertion that the procedure employed in the present case consisted merely of shifting the burden of going forward. Not only has respondent failed to cite any authority for the proposition that the court may arrange the presentation of the evidence to require the alleged contemnor to go forward with the burden of production, but also, as the record demonstrates, the trial court here believed that the burden of proof had shifted as well. Logic dictates that if an alleged contemnor is not required to present any evidence whatsoever (because she is not required to incriminate herself and the burden is on the other party to prove her guilty beyond a reasonable doubt) (citation omitted) then the court cannot order her to go forward with evidence. Moreover, petitioner was required to “show cause” why she should not be held in contempt. That amounts to an impermissible shifting of the burden of proof. (citation omitted). Consequently, the contempt adjudication must be reversed.”

The Second District Appellate Court also noted that a trial court must recite either at the hearing or its written order that the contemnor was found guilty beyond a reasonable doubt. As the trial court omitted this element in the Cummings, supra, case this was an additional ground for the court to reverse the conviction of the wife by the trial court.

In essence, it is extremely important to recognize the differences between indirect criminal contempt and indirect civil contempt. As is shown by the above discussion, the procedural rights of the alleged contemnor and the burden of proof are different depending on whether you are proceeding on a Petition for Rule to Show Cause for Indirect Civil Contempt or for a Petition to Adjudication of Criminal Contempt