OCTOBER TERM, 1993
Syllabus
INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, ET AL.
v. BAGWELL ET AL.
CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 92-1625. Argued
November 29, 1993-Decided June 30,1994
A month after enjoining petitioners (collectively, the union)
from conducting unlawful strike-related activities against certain
mining companies, a Virginia trial court held a contempt hearing,
fined the union for its disobedience, and announced that the union
would be fined for any future breach of the injunction. In
subsequent contempt hearings, the court levied against the union
over $64 million in what it termed coercive, civil fines, ordering
most of the money to be paid to the Commonwealth and the counties
affected by the unlawful activities. After the strike was settled,
the court refused to vacate the fines owed to the Commonwealth and
counties, concluding that they were payable in effect to the
public. Ultimately, it appointed respondent Bagwell to act as
Special Commissioner to collect the unpaid fines. The Virginia
Court of Appeals reversed and ordered that the fines be vacated.
The Virginia Supreme Court, reversing in its turn, rejected
petitioners' contention that the fines were criminal and could not
be imposed absent a criminal trial.
Held: The serious contempt fines imposed here were
criminal and constitutionally could be imposed only through a jury
trial. Pp. 826-839.
(a) A criminal contempt fine is punitive and can be imposed only
through criminal proceedings, including the right to jury trial. A
contempt fine is considered civil and remedial if it either coerces
a defendant into compliance with a court order or compensates the
complainant for losses sustained.
United States v.
Mine
Workers, 330 U.
S. 258, 303304. Where a fine is not compensatory, it is civil
only if the contemnor has an opportunity to purge, such as with per
diem fines and fixed, suspended fines. Pp. 826-830.
(b) Most contempt sanctions share punitive and coercive
characteristics, and the fundamental question underlying the
distinction between civil and criminal contempts is what process is
due for the imposition of any particular contempt sanction. Direct
contempts can be penalized summarily in light of the court's
substantial interest in maintaining order and because the need for
extensive factfinding and the likelihood of an erroneous
deprivation are reduced. Greater procedural protections are
afforded for sanctions of indirect contempts. Certain indirect
822
Syllabus
contempts are particularly appropriate for imposition through
civil proceedings, including contempts impeding the court's ability
to adjudicate the proceedings before it and those contempts
involving discrete, readily ascertainable acts. For contempts of
more complex injunctions, however, criminal procedures may be
required. Pp. 830-834.
(c) The mere fact that the contempt fines here were announced in
advance did not render them civil. Criminal laws generally provide
notice of the sanction to be imposed, and the union's ability to
avoid the contempt fines was indistinguishable from the ability of
any citizen to avoid a criminal sanction. Other considerations
confirm that the fines challenged here are criminal. Neither the
parties nor the Commonwealth's courts have suggested that the fines
are compensatory. The union's sanctionable conduct did not occur in
the court's presence or otherwise implicate the core of the
judicial contempt power, where lesser protections may be
appropriate. Nor did the union's contumacy involve simple,
affirmative acts, where the sanctions' force is primarily coercive
and elaborate factfinding is not required. Instead the court levied
fines for widespread, ongoing, out-of-court violations of a complex
injunction, effectively policing the union's compliance with an
entire code of conduct the court itself imposed. The contumacy
lasted many months and spanned several counties, and the fines
assessed were serious. Under these circumstances, disinterested
factfinding and evenhanded adjudication were essential, and the
union was entitled to a criminal jury trial. Pp. 834-838.
244 Va. 463, 423 S. E. 2d 349, reversed.
BLACKMUN, J., delivered the opinion for a unanimous Court with
respect to Parts I, II-A, II-C, and III, and the opinion of the
Court with respect to Part II -B, in which STEVENS, O'CONNOR,
SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. SCALIA, J., filed
a concurring opinion,
post, p. 839. GINSBURG, J., filed an
opinion concurring in part and concurring in the judgment, in which
REHNQUIST, C. J., joined,
post, p. 844.
Laurence Gold argued the cause for petitioners. With him on the
briefs were Robert H. Stropp, Jr., Walter Kamiat, Andrew P. Miller,
Virginia A. Seitz, and David L. Shapiro.
John G.
Roberts, Jr., argued the cause for
respondents.
With him on the briefs were William B. Poff, Clinton S. Morse,
Frank K. Friedman, and David G. Leitch.
Deputy Solicitor General Bender argued the cause for the
United States urging affirmance. With him on the brief
823
were Solicitor General Days, Assistant Attorney General Hunger,
Deputy Solicitor General Kneedler, and Miguel A. Estrada. *
JUSTICE BLACKMUN delivered the opinion of the Court. We are
called upon once again to consider the distinction between civil
and criminal contempt. Specifically, we address whether contempt
fines levied against a union for violations of a labor injunction
are coercive civil fines, or are criminal fines that
constitutionally could be imposed only through a jury trial. We
conclude that the fines are criminal and, accordingly, we reverse
the judgment of the Supreme Court of Virginia.
I
Petitioners, the International Union, United Mine Workers of
America, and United Mine Workers of America, District 28
(collectively, the union), engaged in a protracted labor dispute
with the Clinchfield Coal Company and Sea "B" Mining Company
(collectively, the companies) over alleged unfair labor practices.
In April 1989, the companies filed suit in the Circuit Court of
Russell County, Virginia, to enjoin the union from conducting
unlawful strike-related activities. The trial court entered an
injunction which, as later amended, prohibited the union and its
members from, among other things, obstructing ingress and egress to
company facilities, throwing objects at and physically threatening
company employees, placing tire-damaging "jackrocks" on roads used
by company vehicles, and picketing with more than a specified
number of people at designated sites. The court additionally
ordered the union to take all steps necessary to ensure compliance
with the injunction, to place su-
*
Bertram R. Gelfand and
Jeffrey C.
Dannenberg filed a brief for the Allied Educational
Foundation as
amicus curiae urging reversal.
Michael E. Avakian filed a brief for the Center on
National Labor Policy, Inc., as
amicus curiae urging
affirmance.
824
pervisors at picket sites, and to report all violations to the
court. App. to Pet. for Cert. 114a-116a.
On May 18, 1989, the trial court held a contempt hearing and
found that petitioners had committed 72 violations of the
injunction. After fining the union $642,000 for its disobedience,l
the court announced that it would fine the union $100,000 for any
future violent breach of the injunction and $20,000 for any future
nonviolent infraction, "such as exceeding picket numbers, [or]
blocking entrances or exits."
Id., at ll1a. The court early
stated that its purpose was to "impos[e] prospective civil fines[,]
the payment of which would only be required if it were shown the
defendants disobeyed the Court's orders."
Id., at 40a.
In seven subsequent contempt hearings held between June and
December 1989, the court found the union in contempt for more than
400 separate violations of the injunction, many of them violent.
Based on the court's stated "intention that these fines are civil
and coercive," id., at 104a, each contempt hearing was conducted as
a civil proceeding before the trial judge, in which the parties
conducted discovery, introduced evidence, and called and
cross-examined witnesses. The trial court required that
contumacious acts be proved beyond a reasonable doubt, but did not
afford the union a right to jury trial.
As a result of these contempt proceedings, the court levied over
$64 million in fines against the union, approximately $12 million
of which was ordered payable to the companies. Because the union
objected to payment of any fines to the companies and in light of
the law enforcement burdens posed by the strike, the court ordered
that the remaining roughly $52 million in fines be paid to the
Commonwealth of Virginia and Russell and Dickenson Counties, "the
two counties most heavily affected by the unlawful activity."
Id., at 44a-45a.
1 A portion of these fines was suspended conditioned on the
union's future compliance. The court later vacated these fines,
concluding that they were '''criminal in nature.''' App. to Pet.
for Cert. 4a, n. 2.
825
While appeals from the contempt orders were pending, the union
and the companies settled the underlying labor dispute, agreed to
vacate the contempt fines, and jointly moved to dismiss the case. A
special mediator representing the Secretary of Labor, App. 48-49,
and the governments of Russell and Dickenson Counties, id., at 48
and 54, supported the parties' motion to vacate the outstanding
fines. The trial court granted the motion to dismiss, dissolved the
injunction, and vacated the $12 million in fines payable to the
companies. After reiterating its belief that the remaining $52
million owed to the counties and the Commonwealth were coercive,
civil fines, the trial court refused to vacate these fines,
concluding they were "payable in effect to the public." App. to
Pet. for Cert. 47a.
The companies withdrew as parties in light of the settlement and
declined to seek further enforcement of the outstanding contempt
fines. Because the Commonwealth Attorneys of Russell and Dickenson
Counties also had asked to be disqualified from the case, the court
appointed respondent John L. Bagwell to act as Special Commissioner
to collect the unpaid contempt fines on behalf of the counties and
the Commonwealth.
Id., at 48a.
The Court of Appeals of Virginia reversed and ordered that the
contempt fines be vacated pursuant to the settlement agreement.
Assuming for the purposes of argument that the fines were civil,
the court concluded that "civil contempt fines imposed during or as
a part of a civil proceeding between private parties are settled
when the underlying litigation is settled by the parties and the
court is without discretion to refuse to vacate such fines."
Mine Workers v.
Clinchfield Coal Co., 12 Va. App.
123, 133, 402 S. E. 2d 899, 905 (1991).
On consolidated appeals, the Supreme Court of Virginia reversed.
The court held that whether coercive, civil contempt sanctions
could be settled by private parties was a question of state law,
and that Virginia public policy disfa-
826
vored such a rule, "if the dignity of the law and public respect
for the judiciary are to be maintained." 244 Va. 463, 478, 423 S.
E. 2d 349, 358 (1992). The court also rejected petitioners'
contention that the outstanding fines were criminal and could not
be imposed absent a criminal trial. Because the trial court's
prospective fine schedule was intended to coerce compliance with
the injunction and the union could avoid the fines through
obedience, the court reasoned, the fines were civil and coercive
and properly imposed in civil proceedings:
"When a court orders a defendant to perform an affirmative act
and provides that the defendant shall be fined a fixed amount for
each day he refuses to comply, the defendant has control of his
destiny. The same is true with respect to the court's orders in the
present case. A prospective fine schedule was established solely
for the purpose of coercing the Union to refrain from engaging in
certain conduct. Consequently, the Union controlled its own fate."
Id., at 477, 423 S. E. 2d, at 357.
This Court granted certiorari. 508 U. S. 949 (1993).
II A
"Criminal contempt is a crime in the ordinary sense,"
Bloom v.
Illinois, 391 U. S. 194, 201
(1968), and "criminal penalties may not be imposed on someone who
has not been afforded the protections that the Constitution
requires of such criminal proceedings,"
Hicks v.
Feiock, 485 U.
S. 624, 632 (1988). See
In re Bradley, 318 U. S. 50 (1943)
(double jeopardy);
Cooke v.
United States, 267 U. S. 517, 537 (1925)
(rights to notice of charges, assistance of counsel, summary
process, and to present a defense);
Gompers v.
Bucks
Stove &
Range Co., 221 U. S. 418, 444 (1911)
(privilege against self-incrimination, right to proof beyond a
reasonable doubt). For "serious" criminal contempts involving
impris-
827
onment of more than six months, these protections include the
right to jury trial.
Bloom, 391 U. S., at 199; see also
Taylor v.
Hayes, 418 U. S. 488, 495
(1974). In contrast, civil contempt sanctions, or those penalties
designed to compel future compliance with a court order, are
considered to be coercive and avoidable through obedience, and thus
may be imposed in an ordinary civil proceeding upon notice and an
opportunity to be heard. Neither a jury trial nor proof beyond a
reasonable doubt is required.2
Although the procedural contours of the two forms of contempt
are well established, the distinguishing characteristics of civil
versus criminal contempts are somewhat less clear.3 In the leading
early case addressing this issue in the context of imprisonment,
Gompers v.
Bucks Stove &
Range Co., 221 U.
S., at 441, the Court emphasized that whether a contempt is civil
or criminal turns on the "character and purpose" of the sanction
involved. Thus, a contempt sanction is considered civil if it "is
remedial, and for the benefit of the com-
2We address only the procedures required for adjudication of
indirect contempts, i.
e., those occurring out of court.
Direct contempts that occur in the court's presence may be
immediately adjudged and sanctioned summarily, see,
e. g., Ex
parte Terry, 128
U. S. 289 (1888), and, except for serious criminal contempts in
which a jury trial is required,
Bloom v.
Illinois,
391 U. S. 194,
209-210 (1968), the traditional distinction between civil and
criminal contempt proceedings does not pertain, cf.
United
States v.
Wilson, 421 U. S. 309, 316
(1975).
3 Numerous scholars have criticized as unworkable the
traditional distinction between civil and criminal contempt. See,
e. g., Dudley, Getting Beyond the Civil/Criminal
Distinction: A New Approach to the Regulation of Indirect
Contempts, 79 Va. L. Rev. 1025, 1033 (1993) (describing the
distinction between civil and criminal contempt as "conceptually
unclear and exceedingly difficult to apply"); Martineau, Contempt
of Court: Eliminating the Confusion between Civil and Criminal
Contempt, 50 U. Cin. L. Rev. 677 (1981) ("Few legal concepts have
bedeviled courts, judges, lawyers and legal commentators more than
contempt of court"); Moskovitz, Contempt of Injunctions, Civil and
Criminal, 43 Colum. L. Rev. 780 (1943); R. Goldfarb, The Contempt
Power 58 (1963) (describing "the tangle of procedure and practice"
resulting from this "unsatisfactory fiction").
828
plainant. But if it is for criminal contempt the sentence is
punitive, to vindicate the authority of the court."
Ibid.
As
Gompers recognized, however, the stated purposes of a
contempt sanction alone cannot be determinative.
Id., at
443. "[W]hen a court imposes fines and punishments on a contemnor,
it is not only vindicating its legal authority to enter the initial
court order, but it also is seeking to give effect to the law's
purpose of modifying the contemnor's behavior to conform to the
terms required in the order."
Hicks, 485 U. S., at 635. Most
contempt sanctions, like most criminal punishments, to some extent
punish a prior offense as well as coerce an offender's future
obedience. The
Hicks Court accordingly held that conclusions
about the civil or criminal nature of a contempt sanction are
properly drawn, not from "the subjective intent of a State's laws
and its courts,"
ibid., but "from an examination of the
character of the relief itself," id., at 636.
The paradigmatic coercive, civil contempt sanction, as set forth
in
Gompers, involves confining a contemnor indefinitely
until he complies with an affirmative command such as an order "to
pay alimony, or to surrender property ordered to be turned over to
a receiver, or to make a conveyance." 221 U. S., at 442; see also
McCrone v.
United States, 307 U. S. 61, 64 (1939)
(failure to testify). Imprisonment for a fixed term similarly is
coercive when the contemnor is given the option of earlier release
if he complies.
Shillitani v.
United States, 384 U. S. 364, 370, n. 6
(1966) (upholding as civil "a determinate [2-year] sentence which
includes a purge clause"). In these circumstances, the contemnor is
able to purge the contempt and obtain his release by committing an
affirmative act, and thus "'carries the keys of his prison in his
own pocket.'"
Gompers, 221 U. S., at 442, quoting
In re
Nevitt, 117 F.4d
8, 451 (CA8 1902).
By contrast, a fixed sentence of imprisonment is punitive and
criminal if it is imposed retrospectively for a "completed act of
disobedience,"
Gompers, 221 U. S., at 443, such that
829
the contemnor cannot avoid or abbreviate the confinement through
later compliance. Thus, the
Gompers Court concluded that a
12-month sentence imposed on Samuel Gompers for violating an
antiboycott injunction was criminal. When a contempt involves the
prior conduct of an isolated, prohibited act, the resulting
sanction has no coercive effect. "[T]he defendant is furnished no
key, and he cannot shorten the term by promising not to repeat the
offense."
Id., at 442.
This dichotomy between coercive and punitive imprisonment has
been extended to the fine context. A contempt fine accordingly is
considered civil and remedial if it either "coerce[s] the defendant
into compliance with the court's order, [or] ... compensate[s] the
complainant for losses sustained."
United States v.
Mine
Workers, 330 U.
S. 258, 303304 (1947). Where a fine is not compensatory, it is
civil only if the contemnor is afforded an opportunity to purge.
See
Penfield Co. of Cal. v.
SEC, 330 U. S. 585, 590
(1947). Thus, a "fiat, unconditional fine" totaling even as little
as $50 announced after a finding of contempt is criminal if the
contemnor has no subsequent opportunity to reduce or avoid the fine
through compliance.
Id., at 588.
A close analogy to coercive imprisonment is a per diem fine
imposed for each day a contemnor fails to comply with an
affirmative court order. Like civil imprisonment, such fines exert
a constant coercive pressure, and once the jural command is obeyed,
the future, indefinite, daily fines are purged. Less comfortable is
the analogy between coercive imprisonment and suspended,
determinate fines. In this Court's sole prior decision squarely
addressing the judicial power to impose coercive civil contempt
fines,
Mine Workers, supra, it held that fixed fines also
may be considered purgable and civil when imposed and suspended
pending future compliance. See also
Penfield, 330 U. S., at
590 ("One who is fined, unless by a day certain he [complies,] has
it in his power to avoid any penalty"); but see
Hicks, 485
U. S., at 639,
830
and n. 11 (suspended or probationary sentence is criminal).
Mine Workers involved a $3,500,000 fine imposed against the
union for nationwide post-World War II strike activities. Finding
that the determinate fine was both criminal and excessive, the
Court reduced the sanction to a fiat criminal fine of $700,000. The
Court then imposed and suspended the remaining $2,800,000 as a
coercive civil fine, conditioned on the union's ability to purge
the fine through full, timely compliance with the trial court's
order.4 The Court concluded, in light of this purge clause, that
the civil fine operated as "a coercive imposition upon the
defendant union to compel obedience with the court's outstanding
order." 330 U. S., at 307.
This Court has not revisited the issue of coercive civil
contempt fines addressed in
Mine Workers. Since that
decision, the Court has erected substantial procedural protections
in other areas of contempt law, such as criminal contempts,
e.
g., Bloom v.
Illinois, 391 U. S. 194 (1968), and
summary contempts,
e. g., Taylor v.
Hayes, 418 U. S. 488 (1974);
Codispoti v.
Pennsylvania, 418 U. S. 506, 513
(1974);
Johnson v.
Mississippi, 403 U. S. 212 (1971);
In re Oliver, 333 U. S. 257, 275
(1948). Lower federal courts and state courts such as the trial
court here nevertheless have relied on
Mine Workers to
authorize a relatively unlimited judicial power to impose
noncompensatory civil contempt fines.
B
Underlying the somewhat elusive distinction between civil and
criminal contempt fines, and the ultimate question posed
4 Although the size of the fine was substantial, the conduct
required of the union to purge the suspended fine was relatively
discrete. According to the Court, purgation consisted of (1)
withdrawal of the union's notice terminating the Krug-Lewis labor
agreement; (2) notifying the union members of this withdrawal; and
(3) withdrawing and notifying the union members of the withdrawal
of any other notice questioning the ongoing effectiveness of the
Krug-Lewis agreement.
United States v.
Mine Workers,
330 U. S. 258,
305 (1947).
831
in this case, is what procedural protections are due before any
particular contempt penalty may be imposed. Because civil contempt
sanctions are viewed as nonpunitive and avoidable, fewer procedural
protections for such sanctions have been required. To the extent
that such contempts take on a punitive character, however, and are
not justified by other considerations central to the contempt
power, criminal procedural protections may be in order.
The traditional justification for the relative breadth of the
contempt power has been necessity: Courts independently must be
vested with "power to impose silence, respect, and decorum, in
their presence, and submission to their lawful mandates, and ... to
preserve themselves and their officers from the approach and
insults of pollution."
Anderson v.
Dunn, 6 Wheat.
204, 227 (1821). Courts thus have embraced an inherent contempt
authority, see
Gompers, 221 U. S., at 450;
Ex parte
Robinson, 19 Wall. 505, 510 (1874), as a power "necessary to
the exercise of all others,"
United States v.
Hudson,
7 Cranch 32, 34 (1812).
But the contempt power also uniquely is "'liable to abuse.'"
Bloom, 391 U. S., at 202, quoting
Ex parte Terry,
128 U. S. 289,
313 (1888). Unlike most areas of law, where a legislature defines
both the sanctionable conduct and the penalty to be imposed, civil
contempt proceedings leave the offended judge solely responsible
for identifying, prosecuting, adjudicating, and sanctioning the
contumacious conduct. Contumacy "often strikes at the most
vulnerable and human qualities of a judge's temperament,"
Bloom, 391 U. S., at 202, and its fusion of legislative,
executive, and judicial powers "summons forth ... the prospect of
'the most tyrannical licentiousness,'"
Young v.
United
States ex rel. Vuitton et Fils S.
A., 481 U. S. 787, 822 (1987)
(SCALIA, J., concurring in judgment), quoting
Anderson, 6
Wheat., at 228. Accordingly, "in [criminal] contempt cases an even
more compelling argument can be made [than in ordinary criminal
cases] for providing
832
a right to jury trial as a protection against the arbitrary
exercise of official power."
Bloom, 391 U. S., at 202.
Our jurisprudence in the contempt area has attempted to balance
the competing concerns of necessity and potential arbitrariness by
allowing a relatively unencumbered contempt power when its exercise
is most essential, and requiring progressively greater procedural
protections when other considerations come into play. The necessity
justification for the contempt authority is at its pinnacle, of
course, where contumacious conduct threatens a court's immediate
ability to conduct its proceedings, such as where a witness refuses
to testify, or a party disrupts the court. See Young,
481 U.
S., at 820-821 (SCALIA, J., concurring in judgment) (the judicial
contempt power is a "power of self-defense," limited to sanctioning
"those who interfere with the orderly conduct of [court] business
or disobey orders necessary to the conduct of that business").
Thus, petty, direct contempts in the presence of the court
traditionally have been subject to summary adjudication, "to
maintain order in the courtroom and the integrity of the trial
process in the face of an 'actual obstruction of justice.'''
Codispoti v.
Pennsylvania, 418 U. S., at 513, quoting
In re McConnell, 370 U. S. 230, 236
(1962); cf.
United States v.
Wilson, 421 U. S. 309, 315-316
(1975); Harris v.
United States, 382 U. S. 162, 164
(1965). In light of the court's substantial interest in rapidly
coercing compliance and restoring order, and because the contempt's
occurrence before the court reduces the need for extensive
factfinding and the likelihood of an erroneous deprivation, summary
proceedings have been tolerated.
Summary adjudication becomes less justifiable once a court
leaves the realm of immediately sanctioned, petty direct contempts.
If a court delays punishing a direct contempt until the completion
of trial, for example, due process requires that the contemnor's
rights to notice and a hearing be respected.
Taylor v.
Hayes, 418 U.
S. 488 (1974). There "it is much more difficult to argue that
action without notice
833
or hearing of any kind is necessary to preserve order and enable
[the court] to proceed with its business," id., at 498,
particularly "in view of the heightened potential for abuse posed
by the contempt power,"
id., at 500; see also
Harris
v.
United States, 382 U. S., at 164-165. Direct contempts
also cannot be punished with serious criminal penalties absent the
full protections of a criminal jury trial.
Bloom, 391 U. S.,
at 210.
Still further procedural protections are afforded for contempts
occurring out of court, where the considerations justifying
expedited procedures do not pertain. Summary adjudication of
indirect contempts is prohibited,
e. g.,
Cooke v.
United States, 267 U. S. 517, 534
(1925), and criminal contempt sanctions are entitled to full
criminal process,
e. g.,
Hicks, 485 U. S., at 632.
Certain indirect contempts nevertheless are appropriate for
imposition through civil proceedings. Contempts such as failure to
comply with document discovery, for example, while occurring
outside the court's presence, impede the court's ability to
adjudicate the proceedings before it and thus touch upon the core
justification for the contempt power. Courts traditionally have
broad authority through means other than contempt-such as by
striking pleadings, assessing costs, excluding evidence, and
entering default judgment-to penalize a party's failure to comply
with the rules of conduct governing the litigation process. See,
e. g., Fed. Rules Civ. Proc. 11, 37. Such judicial sanctions
never have been considered criminal, and the imposition of civil,
coercive fines to police the litigation process appears consistent
with this authority. Similarly, indirect contempts involving
discrete, readily ascertainable acts, such as turning over a key or
payment of a judgment, properly may be adjudicated through civil
proceedings since the need for extensive, impartial factfinding is
less pressing.
For a discrete category of indirect contempts, however, civil
procedural protections may be insufficient. Contempts involving
out-of-court disobedience to complex injunctions
834
often require elaborate and reliable factfinding. Cf.
Green v.
United States, 356 U. S. 165, 217, n. 33
(1958) (Black, J., dissenting) ("Alleged contempts committed beyond
the court's presence where the judge has no personal knowledge of
the material facts are especially suited for trial by jury. A
hearing must be held, witnesses must be called, and evidence taken
in any event. And often ... crucial facts are in close dispute"
(citation omitted)). Such contempts do not obstruct the court's
ability to adjudicate the proceedings before it, and the risk of
erroneous deprivation from the lack of a neutral factfinder may be
substantial.
Id., at 214-215. Under these circumstances,
criminal procedural protections such as the rights to counsel and
proof beyond a reasonable doubt are both necessary and appropriate
to protect the due process rights of parties and prevent the
arbitrary exercise of judicial power.
C
In the instant case, neither any party nor any court of the
Commonwealth has suggested that the challenged fines are
compensatory. At no point did the trial court attempt to calibrate
the fines to damages caused by the union's contumacious activities
or indicate that the fines were "to compensate the complainant for
losses sustained."
Mine Workers, 330 U. S., at 303-304. The
nonparty governments, in turn, never requested any compensation or
presented any evidence regarding their injuries, never moved to
intervene in the suit, and never actively defended the fines
imposed. The issue before us accordingly is limited to whether
these fines, despite their noncompensatory character, are coercive
civil or criminal sanctions.
The parties propose two independent tests for determining
whether the fines are civil or criminal. Petitioners argue that
because the injunction primarily prohibited certain conduct rather
than mandated affirmative acts, the sanctions are criminal.
Respondents in turn urge that because the trial court established a
prospective fine schedule that
835
the union could avoid through compliance, the fines are civil in
character.
Neither theory satisfactorily identifies those contempt fines
that are criminal and thus must be imposed through the criminal
process. Petitioners correctly note that
Gompers suggests a
possible dichotomy "between refusing to do an act
commanded,-remedied by imprisonment until the party performs the
required act; and doing an act forbidden,-punished by imprisonment
for a definite term." 221 U. S., at 443. The distinction between
mandatory and prohibitory orders is easily applied in the classic
contempt scenario, where contempt sanctions are used to enforce
orders compelling or forbidding a single, discrete act. In such
cases, orders commanding an affirmative act simply designate those
actions that are capable of being coerced.
But the distinction between coercion of affirmative acts and
punishment of prohibited conduct is difficult to apply when conduct
that can recur is involved, or when an injunction contains both
mandatory and prohibitory provisions. Moreover, in borderline cases
injunctive provisions containing essentially the same command can
be phrased either in mandatory or prohibitory terms. Under a
literal application of petitioners' theory, an injunction ordering
the union: "Do not strike," would appear to be prohibitory and
criminal, while an injunction ordering the union: "Continue
working," would be mandatory and civil. See Tr. of Oral Arg. 8-9;
Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183, 239
(1971). In enforcing the present injunction, the trial court
imposed fines without regard to the mandatory or prohibitory nature
of the clause violated. Accordingly, even though a parsing of the
injunction's various provisions might support the classification of
contempts such as rock throwing and placing tire-damaging
"jackrocks" on roads as criminal and the refusal to place
supervisors at picket sites as civil, the parties have not asked us
to review the order in that manner. In a case like this involving
an injunction that pre-
836
scribes a detailed code of conduct, it is more appropriate to
identify the character of the entire decree. Cf.
Hicks, 485
U. S., at 638, n. 10 (internal quotation marks omitted) (Where both
civil and criminal relief is imposed "the criminal feature of the
order is dominant and fixes its character for purposes of
review").
Despite respondents' urging, we also are not persuaded that
dispositive significance should be accorded to the fact that the
trial court prospectively announced the sanctions it would impose.
Had the trial court simply levied the fines after finding the union
guilty of contempt, the resulting "determinate and unconditional"
fines would be considered "solely and exclusively punitive."
Id., at 632-633 (internal quotation marks omitted); see also
Penfield Co. of Cal. v.
SEC, 330 U. S. 585 (1947).
Respondents nevertheless contend that the trial court's
announcement of a prospective fine schedule allowed the union to
"avoid paying the fine[s] simply by performing the ... act required
by the court's order,"
Hicks, 485 U. S., at 632, and thus
transformed these fines into coercive, civil ones. Respondents
maintain here, as the Virginia Supreme Court held below, that the
trial court could have imposed a daily civil fine to coerce the
union into compliance, and that a prospective fine schedule is
indistinguishable from such a sanction.
Respondents' argument highlights the difficulties encountered in
parsing coercive civil and criminal contempt fines. The fines
imposed here concededly are difficult to distinguish either from
determinate, punitive fines or from initially suspended, civil
fines. Ultimately, however, the fact that the trial court announced
the fines before the contumacy, rather than after the fact, does
not in itself justify respondents' conclusion that the fines are
civil or meaningfully distinguish these penalties from the ordinary
criminal law. Due process traditionally requires that criminal laws
provide prior notice both of the conduct to be prohibited and of
the sanction to be imposed. The trial court here simply announced
the pen-
837
alty-determinate fines of $20,000 or $100,000 per violation-that
would be imposed for future contempts. The union's ability to avoid
the contempt fines was indistinguishable from the ability of any
ordinary citizen to avoid a criminal sanction by conforming his
behavior to the law. The fines are not coercive day fines, or even
suspended fines, but are more closely analogous to fixed,
determinate, retrospective criminal fines which petitioners had no
opportunity to purge once imposed. We therefore decline to conclude
that the mere fact that the sanctions were announced in advance
rendered them coercive and civil as a matter of
constitutionallaw.
Other considerations convince us that the fines challenged here
are criminal. The union's sanctionable conduct did not occur in the
court's presence or otherwise implicate the court's ability to
maintain order and adjudicate the proceedings before it. Nor did
the union's contumacy involve simple, affirmative acts, such as the
paradigmatic civil contempts examined in
Gompers. Instead,
the Virginia trial court levied contempt fines for widespread,
ongoing, out-ofcourt violations of a complex injunction. In so
doing, the court effectively policed petitioners' compliance with
an entire code of conduct that the court itself had imposed. The
union's contumacy lasted many months and spanned a substantial
portion of the State. The fines assessed were serious, totaling
over $52 million.5 Under such circumstances,
5 "[P]etty contempt like other petty criminal offenses may be
tried without a jury,"
Taylor v.
Hayes, 418 U. S. 488,495 (1974),
and the imposition only of serious criminal contempt fines triggers
the right to jury trial.
Bloom, 391 U. S., at 210. The Court
to date has not specified what magnitude of contempt fine may
constitute a serious criminal sanction, although it has held that a
fine of $10,000 imposed on a union was insufficient to trigger the
Sixth Amendment right to jury trial. See
Muniz v.
Hoffman, 422
U. S. 454, 477 (1975); see also 18 U. S. C. § 1(3) (1982 ed.,
Supp. V) (defining petty offenses as crimes "the penalty for which
... does not exceed imprisonment for a period of six months or a
fine of not more than $5,000 for an individual and $10,000 for a
person other than an individual,
838
disinterested factfinding and evenhanded adjudication were
essential, and petitioners were entitled to a criminal jury
trial.
In reaching this conclusion, we recognize that this Court
generally has deferred to a legislature's determination whether a
sanction is civil or criminal, see,
e. g., United States v.
Ward, 448 U.
S. 242, 248 (1980);
Helvering v.
Mitchell,
303 U. S. 391
(1938), and that "[w]hen a State's proceedings are involved, state
law provides strong guidance about whether or not the State is
exercising its authority 'in a nonpunitive, noncriminal manner.'"
Hicks, 485 U. S., at 631, quoting
Allen v.
Illinois, 478
U. S. 364, 368 (1986). We do not deviate from either tradition
today. Where a single judge, rather than a legislature, declares a
particular sanction to be civil or criminal, such deference is less
appropriate. Cf.
Madsen v.
Women's Health Center, Inc.,
ante, p. 753. Moreover, this Court has recognized that even for
state proceedings, the label affixed to a contempt ultimately "will
not be allowed to defeat the applicable protections of federal
constitutionallaw."
Hicks v.
Feiock, 485 U. S., at
631. We conclude that the serious contempt fines imposed here were
criminal and constitutionally could not be imposed absent a jury
trial.
III
Our decision concededly imposes some procedural burdens on
courts' ability to sanction widespread, indirect contempts of
complex injunctions through noncompensatory fines. Our holding,
however, leaves unaltered the longstanding authority of judges to
adjudicate direct contempts summarily, and to enter broad
compensatory awards for all contempts through civil proceedings.
See,
e. g., Sheet Metal Workers v.
EEOC, 478 U. S. 421 (1986).
Because the right to trial by
or both") (repealed 1984). We need not answer today the
difficult question where the line between petty and serious
contempt fines should be drawn, since a $52 million fine
unquestionably is a serious contempt sanction.
839
jury applies only to serious criminal sanctions, courts still
may impose noncompensatory, petty fines for contempts such as the
present ones without conducting a jury trial. We also do not
disturb a court's ability to levy, albeit through the criminal
contempt process, serious fines like those in this case.
Ultimately, whatever slight burden our holding may impose on the
judicial contempt power cannot be controlling. The Court recognized
more than a quarter century ago:
"We cannot say that the need to further respect for judges and
courts is entitled to more consideration than the interest of the
individual not be subjected to serious criminal punishment without
the benefit of all the procedural protections worked out carefully
over the years and deemed fundamental to our system of justice.
Genuine respect, which alone can lend true dignity to our judicial
establishment, will be engendered, not by the fear of unlimited
authority, but by the firm administration of the law through those
institutionalized procedures which have been worked out over the
centuries." Bloom, 391 U. S., at 208.
Where, as here, "a serious contempt is at issue, considerations
of efficiency must give way to the more fundamental interest of
ensuring the even-handed exercise of judicial power."
Id.,
at 209.
The judgment of the Supreme Court of Virginia is reversed.
It is so ordered.
JUSTICE SCALIA, concurring.
I join the Court's opinion classifying the $52 million in
contempt fines levied against petitioners as criminal. As the
Court's opinion demonstrates, our cases have employed a variety of
not easily reconcilable tests for differentiating between civil and
criminal contempts. Since all of those tests
840
would yield the same result here, there is no need to decide
which is the correct one-and a case so extreme on its facts is not
the best case in which to make that decision. I wish to suggest,
however, that when we come to making it, a careful examination of
historical practice will ultimately yield the answer.
That one and the same person should be able to make the rule, to
adjudicate its violation, and to assess its penalty is out of
accord with our usual notions of fairness and separation of powers.
See
ante, at 831;
Green v.
United States, 356
U. S. 165, 198-199 (1958) (Black, J., dissenting); cf.
Bloom
v.
Illinois, 391 U. S. 194, 202
(1968);
Cooke v.
United States, 267 U. S. 517, 539
(1925). And it is worse still for that person to conduct the
adjudication without affording the protections usually given in
criminal trials. Only the clearest of historical practice could
establish that such a departure from the procedures that the
Constitution normally requires is not a denial of due process of
law. See
Burnham v.
Superior Court of Cal., County of
Marin, 495 U. S.
604, 623-625 (1990); cf.
Honda Motor Co. v.
Oberg,
ante, at 430-431.
At common law, contempts were divided into criminal contempts,
in which a litigant was punished for an affront to the court by a
fixed fine or period of incarceration; and civil contempts, in
which an uncooperative litigant was incarcerated (and, in later
cases, fined*) until he complied with a specific order of the
court. See
Gompers v.
Bucks Stove &
Range
Co., 221 U. S.
418, 441-444 (1911). Incarceration until compliance was a
distinctive sanction, and sheds light upon the nature of the
decrees enforced by civil contempt. That sanction makes sense only
if the order requires performance
*The per diem fines that came to be used to coerce compliance
with decrees were in most relevant respects like conditional prison
terms. With them, as with incarceration, the penalty continued
until the contemnor complied, and compliance stopped any further
punishment but of course did not eliminate or restore any
punishment already endured.
841
of an identifiable act (or perhaps cessation of continuing
performance of an identifiable act). A general prohibition for the
future does not lend itself to enforcement through conditional
incarceration, since no single act (or the cessation of no single
act) can demonstrate compliance and justify release. One court has
expressed the difference between criminal and civil contempts as
follows: "Punishment in criminal contempt cannot undo or remedy the
thing which has been done, but in civil contempt punishment
remedies the disobedience."
In re Fox, 96 F.2d 23, 25 (CA3
1938).
As one would expect from this, the orders that underlay civil
contempt fines or incarceration were usually mandatory rather than
prohibitory, see
Gompers, supra, at 442, directing litigants
to perform acts that would further the litigation (for example,
turning over a document), or give effect to the court's judgment
(for example, executing a deed of conveyance). The latter category
of order was particularly common, since the jurisdiction of equity
courts was generally
in personam rather than
in rem,
and the relief they decreed would almost always be a directive to
an individual to perform an act with regard to property at issue.
See 4 J. Pomeroy, Equity Jurisprudence § 1433, pp. 3386-3388 (4th
ed. 1919). The mandatory injunctions issued upon termination of
litigation usually required "a single simple act." H. McClintock,
Principles of Equity § 15, pp. 32-33 (2d ed. 1948). Indeed, there
was a "historical prejudice of the court of chancery against
rendering decrees which called for more than a single affirmative
act."
Id., § 61, at 160. And where specific performance of
contracts was sought, it was the categorical rule that no decree
would issue that required ongoing supervision. See,
e. g.,
Marble Co. v.
Ripley, 10 Wall. 339, 358-359 (1870); see
also McClintock,
supra, § 61, at 160-161; 1 J. Story,
Commentaries on Equity Jurisprudence § 778b, p. 782 (Redfield ed.;
10th ed. 1870). Compliance with these "single act" mandates could,
in addition to being simple, be
842
quick; and once it was achieved the contemnor's relationship
with the court came to an end, at least insofar as the subject of
the order was concerned. Once the document was turned over or the
land conveyed, the litigant's obligation to the court, and the
court's coercive power over the litigant, ceased. See
United
States v.
Mine Workers, 330 U. S. 258, 332 (1947)
(Black, J., concurring in part and dissenting in part). The court
did not engage in any ongoing supervision of the litigant's
conduct, nor did its order continue to regulate his behavior.
Even equitable decrees that were prohibitory rather than
mandatory were, in earlier times, much less sweeping than their
modern counterparts. Prior to the labor injunctions of the late
1800's, injunctions were issued primarily in relatively narrow
disputes over property. See,
e. g., W. Kerr, Law and
Practice of Injunctions *7 (2d Am. Ed. 1880); see also F.
Frankfurter & N. Greene, The Labor Injunction 2324, 87-88
(1930).
Contemporary courts have abandoned these earlier limitations
upon the scope of their mandatory and injunctive decrees. See G.
McDowell, Equity and the Constitution 4, 9 (1982). They routinely
issue complex decrees which involve them in extended disputes and
place them in continuing supervisory roles over parties and
institutions. See,
e. g.,
Missouri v.
Jenkins,
495 U. S. 33,
56-58 (1990);
Swann v.
Charlotte-Mecklenburg Bd. of
Ed., 402 U. S.
1, 16 (1971). Professor Chayes has described the extent of the
transformation:
"[The modern decree] differs in almost every relevant
characteristic from relief in the traditional model of
adjudication, not the least in that it is the centerpiece
.... It provides for a complex, on-going regime of performance
rather than a simple, one-shot, one-way transfer. Finally, it
prolongs and deepens, rather than terminates, the court's
involvement with the dispute." Chayes, The
843
Role of the Judge in Public Law Litigation, 89 Harv. L. Rev.
1281, 1298 (1976).
The consequences of this change for the point under discussion
here are obvious: When an order governs many aspects of a
litigant's activities, rather than just a discrete act, determining
compliance becomes much more difficult. Credibility issues arise,
for which the factfinding protections of the criminal law
(including jury trial) become much more important. And when
continuing prohibitions or obligations are imposed, the order
cannot be complied with (and the contempt "purged") in a single
act; it continues to govern the party's behavior, on pain of
punishment-not unlike the criminal law.
The order at issue here provides a relatively tame example of
the modern, complex decree. The amended injunction prohibited,
inter alia, rock throwing, the puncturing of tires,
threatening, following or interfering with respondents' employees,
placing pickets in other than specified locations, and roving
picketing; and it required,
inter alia, that petitioners
provide a list of names of designated supervisors. App. to Pet. for
Cert. 113a-116a. Although it would seem quite in accord with
historical practice to enforce, by conditional incarceration or per
diem fines, compliance with the last provision-a discrete command,
observance of which is readily ascertained-using that same means to
enforce the remainder of the order would be a novelty.
***
The use of a civil process for contempt sanctions "makes no
sense except as a consequence of historical practice."
Weiss
v.
United States, 510 U. S. 163, 198 (1994)
(SCALIA, J., concurring in part and concurring in judgment). As the
scope of injunctions has expanded, they have lost some of the
distinctive features that made enforcement through civil process
acceptable. It is not that the times, or our perceptions of
fairness, have changed (that is in my view no basis
844
Opinion of GINSBURG, J.
for either tightening or relaxing the traditional demands of due
process); but rather that the modern judicial order is in its
relevant essentials not the same device that in former times could
always be enforced by civil contempt. So adjustments will have to
be made. We will have to decide at some point which modern
injunctions sufficiently resemble their historical namesakes to
warrant the same extraordinary means of enforcement. We need not
draw that line in the present case, and so I am content to join the
opinion of the Court.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE joins, concurring
in part and concurring in the judgment.
The issue in this case is whether the contempt proceedings
brought against the petitioner unions are to be classified as
"civil" or "criminal." As the Court explains, if those proceedings
were "criminal," then the unions were entitled under our precedents
to a jury trial, and the disputed fines, imposed in bench
proceedings, could not stand. See
ante, at 826-827.
I
Gompers v.
Bucks Stove &
Range Co.,
221 U. S. 418
(1911), as the Court notes, see
ante, at 827-828, is a
pathmarking case in this area. The civil contempt sanction,
Gompers instructs, is designed "to coerce the defendant to
do the thing required by the order for the benefit of the
complainant," rather than "to vindicate the authority of the law."
221 U. S., at 442. The sanction operates coercively because it
applies continuously until the defendant performs the discrete,
"affirmative act" required by the court's order, for example,
production of a document or presentation of testimony.
Ibid.
The civil contemnor thus" 'carries the keys of his prison in his
own pocket''': At any moment, "[h]e can end the sentence and
discharge himself ... by doing what he had previously refused to
do."
Ibid., quoting
In re Nevitt, 117 F.4d
8, 461 (CA8 1902).
845
The criminal contempt sanction, by contrast, is "punitive,
[imposed] to vindicate the authority of the court."
Gompers,
221 U. S., at 441. Unlike the civil contemnor, who has refused to
perform some discrete, affirmative act commanded by the court,
Gompers explains, the criminal contemnor has "do[ne] that
which he has been commanded not to do."
Id., at 442. The
criminal contemnor's disobedience is past, a "completed act," id.,
at 443, a deed no sanction can undo. See id., at 442. Accordingly,
the criminal contempt sanction operates not to coerce a future act
from the defendant for the benefit of the complainant, but to
uphold the dignity of the law, by punishing the contemnor's
disobedience.
Id., at 442-443. Because the criminal contempt
sanction is determinate and unconditional, the Court said in
Gompers, "the defendant is furnished no key, and he cannot
shorten the term by promising not to repeat the offense."
Id., at 442.
Even as it outlined these civil and criminal contempt
prototypes, however, the Court in
Gompers acknowledged that
the categories, when filled by actual cases, are not altogether
neat and tidy. Civil contempt proceedings, although primarily
remedial, also "vindicat[e] ... the court's authority"; and
criminal contempt proceedings, although designed "to vindicate the
authority of the law," may bestow "some incidental benefit" upon
the complainant, because "such punishment tends to prevent a
repetition of the disobedience."
Id., at 443.
II
The classifications described in
Gompers have come under
strong criticism, particularly from scholars. Many have observed,
as did the Court in
Gompers itself, that the categories,
"civil" and "criminal" contempt, are unstable in theory and
problematic in practice. See
ante, at 827, n. 3 (citing
scholarly criticism); see also Dudley, Getting Beyond the
Civil/Criminal Distinction: A New Approach to the Regulation of
Indirect Contempts, 79 Va. L. Rev. 1025, 1025, n. 1 (1993) (citing
additional scholarly criticism).
846
Opinion of GINSBURG, J.
Our cases, however, have consistently resorted to the
distinction between criminal and civil contempt to determine
whether certain constitutional protections, required in criminal
prosecutions, apply in contempt proceedings. See,
e. g.,
United States v.
Dixon, 509 U. S. 688, 696 (1993)
("We have held that [certain] constitutional protections for
criminal defendants ... apply in nonsummary criminal contempt
prosecutions just as they do in other criminal prosecutions.")
(citing cases). And the Court has repeatedly relied upon
Gompers' delineation of the distinction between criminal and
civil contempt. See,
e. g., Hicks v.
Feiock, 485 U. S. 624,
631-633,635-636 (1988). The parties, accordingly, have presented
their arguments within the
Gompers framework.
Two considerations persuade me that the contempt proceedings in
this case should be classified as "criminal" rather than "civil."
First, were we to accept the logic of Bagwell's argument that the
fines here were civil, because "conditional" and "coercive," no
fine would elude that categorization. The fines in this case were
"conditional," Bagwell says, because they would not have been
imposed if the unions had complied with the injunction. The fines
would have been "conditional" in this sense, however, even if the
court had not supplemented the injunction with its fines schedule;
indeed, any fine is "conditional" upon compliance or noncompliance
before its imposition. Cf.
ante, at 837 (the unions' ability
to avoid imposition of the fines was "indistinguishable from the
ability of any ordinary citizen to avoid a criminal sanction by
conforming his behavior to the law"). Furthermore, while the fines
were "coercive," in the sense that one of their purposes was to
encourage union compliance with the injunction, criminal contempt
sanctions may also "coerce" in this same sense, for they, too,
"ten[d] to prevent a repetition of the disobedience."
Gompers, 221 U. S., at 443. Bagwell's thesis that the fines
were civil, because "condi-
847
tional" and "coercive," would so broaden the compass of those
terms that their line-drawing function would be lost. *
Second, the Virginia courts' refusal to vacate the fines,
despite the parties' settlement and joint motion, see
ante,
at 825-826, is characteristic of criminal, not civil, proceedings.
In explaining why the fines outlived the underlying civil dispute,
the Supreme Court of Virginia stated: "Courts of the Commonwealth
must have the authority to enforce their orders by employing
coercive, civil sanctions if the dignity of the law and public
respect for the judiciary are to be maintained." 244 Va. 463, 478,
423 S. E. 2d 349, 358 (1992). The Virginia court's references to
upholding public authority and maintaining "the dignity of the law"
reflect the very purposes
Gompers ranked on the criminal
contempt side. See
supra, at 844-845. Moreover, with the
private complainant gone from the scene, and an official appointed
by the Commonwealth to collect the fines for the Commonwealth's
coffers, it is implausible to invoke the justification of
benefiting the civil complainant. The Commonwealth here pursues the
fines on its own account, not as the agent of a private party, and
without tying the exactions exclusively to a claim for
compensation. Cf.
Hicks, 485 U. S., at 632 ("[A] fine ...
[is] punitive when it is paid to the court," but "remedial" or
"civil" "when the defendant can avoid paying the fine simply by
performing the affirmative act required by the court's order.").
If, as the trial court declared, the proceedings
*Bagwell further likens the prospective fines schedule to the
civil contempt fine imposed in
United States v.
Mine
Workers, 330 U.
S. 258 (1947). In that case, however, the contemnor union was
given an opportunity, after the fine was imposed, to avoid the fine
by "effect[ing] full compliance" with the injunction. As the Court
explains, see
ante, at 830, n. 4, for purposes of allowing
the union to avoid the fine, "full compliance" with the broad
no-strike injunction, see 330 U. S., at 266, n. 12, was reduced to
the performance of three affirmative acts. This opportunity to
purge, consistent with the civil contempt scenario described in
Gompers, see
supra, at 844, was unavailable to the
unions in this case.
848
Opinion of GINSBURG, J.
were indeed civil from the outset, then the court should have
granted the parties' motions to vacate the fines.
* * *
Concluding that the fines at issue "are more closely analogous
to ... criminal fines" than to civil fines,
ante, at 837, I
join the Court's judgment and all but Part II-B of its opinion.
Comments
Be the first to comment
Leave a Comment