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TIBOR TAJTI
Civil contempt is ‘remedial and coercive in nature,’ and it therefore has the dual
purpose of “/enforcing] mandates of the court relating to the rights and remedies
of one party against another in private actions and [insuring] that orders and
decrees affecting these rights are obeyed.”'* Criminal contempt’s function, as
opposed to that, is to “preserve the power and vindicate the dignity of the courts."
A more recent source states rather that normally, “civil contempt addresses present
or future compliance with an order, judgment, or decree, rather than punitive
sanctions for past noncompliance. The latter is the subject of criminal contempt.”'*
It is a further exacerbating factor that the tandem often appears in cases
together, the civil contempt normally being the first, milder “punishment,” and
the criminal one being reserved for repeat and more severe contempts of courts. In
a 2015 New York case, the court added that “/t/he element which serves to elevate
a contempt from civil to criminal is the level of willfulness with which the conduct
is carried out"
Justice Scalia consequently rightly noted in his concurring opinion in the
International Union, UMWA v. Bagwell’® case that “our cases have employed
a variety of not easily reconcilable tests for differentiating civil and criminal
contempt.” This was a case in which the Supreme Court, involving a $25 million
contempt fine imposed for “widespread and ongoing violation of labor injunction”
on a trade union, found the imposed contempt be criminal rather than civil because
it was ‘significant.’ As a result, jury trial should have been mandated. Though US
courts have found, for example, turnover orders to be of ‘quasi-criminal’ nature.’”
The differentiation is important for more reasons, including the different
proving standards: the civil contempt’s ‘preponderance of the evidence’ versus
its criminal kin’s higher-standard ‘beyond reasonable doubt’ threshold. Further,
4 Ibid, at 14.
15 Ibid, at 14.
Rosemary E. Williams, Annotation, Proof of Motion Seeking Sanctions of Criminal
Contempt for Violation of Order of Bankruptcy Court and Automatic Stay Pursuant to 11
U.S.C.A. § 105(a), Fed. R. Bankr. P. 9020 and Defenses, 133 Am. Jur. Proof of Facts 3d 273
(2013 & Supp. April 2017).
McCarthy v Ciano, 50 Misc.3d 861 (2015).
18 114 S.Ct. 2552 (1994).
% Oriel v. Russel 278 U.S. 358 (1929). As Siegel, commentator of the case put it back then:
“Although it is conceded that the turn over proceeding is civil in its nature, it is argued
that the contempt motion is quasi-criminal and therefore the degree of proof required on
a motion to punish for contempt should be beyond a reasonable doubt.” Benjamin Siegel,
Contempt in Bankruptcy Cases, American Bankruptcy Review: The Monthly Magazine for
Lawyers, Bankers, and Business Men 4 (1928), 291-322, 297. He quoted also the following
passage from Free v. Shapiro: “By the weight of authority, in attaching for contempt for
failure to turn over assets adjudged to be withheld, the Court will not imprison the bankrupt
unless satisfied beyond reasonable doubt of his guilt.”
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