4.2Jail Terms, Fines, Costs, and Expenses

MCL 600.1715 caps the amount of any fine for contempt at $7,500 and caps any jail term at 93 days, “except in those cases where the commitment is for the omission to perform an act or duty which is still within the power of the person to perform[.]” MCL 600.1715(1).

Sentences must run concurrently unless statutory authority specifically authorizes imposing consecutive sentences. People v Chambers, 430 Mich 217, 222 (1988).

A.Permissible Sanctions for Civil Contempt

Following a finding of civil contempt, the court may order any or all of the following sanctions:

•a fine of not more than $7,500, MCL 600.1715(1);

•a coercive and conditional jail sentence to compel the contemnor to comply with an order of the court, MCL 600.1715(1)-(2); and

•if applicable, damages for loss or injury caused by the contumacious conduct, MCL 600.1721.¹

1.Considerations Specific to Civil Sanctions

The contemnor’s incarceration must terminate when the contemnor complies with the court’s order or no longer has the ability to comply with the court’s order, and pays the fine, costs, and expenses of the proceeding. MCL 600.1715(2). Similarly, “fines for civil contempts should, unless they are intended to compensate a complainant, be avoidable by the contemnor by complying with the court’s order.” In re Contempt of Pavlos-Hackney, 343 Mich App 642, 677 (2022).

In Pavlos-Hackney, the court entered two judgments of civil contempt after the contemnors continued to operate their restaurant “in willful defiance of the trial court’s orders to cease operation”; “[i]n turn, the orders to cease operation arose out of the decision of plaintiff, the Michigan Department of Agriculture and Rural Development (MDARD), to suspend the food-establishment license for [the restaurant], following [the owner’s] willful defiance of public health and safety orders related to the COVID-19 pandemic.” Id. at 647-648. The trial court ordered the contemnors to pay two separate fines of $7,500. Id. at 676. “[G]iven the contemnors’ subsequent willful and open continued defiance of the trial court’s order,” “the first fine of $7,500 is clearly not refundable[.]” Id. at 677. However, “[t]he second $7,500 fine is a different matter”—“because the contemnors did finally choose to comply, it is unclear what more they could have done to avoid the second fine.” Id. at 677-678. “Put another way, a civil-contempt fine should generally be conditional or compensatory, but it is not clear what condition the contemnors failed to satisfy, and the trial court did not direct any portion of the fine to be paid to MDARD.” Id. at 678. Because “the ultimate effect of the second fine is more criminal than civil in nature, even if that was not the trial court’s intent,” “the second fine must be remanded for the trial court to refashion it to be civil in nature, as applied under the circumstances.” Id (instructing the trial court to “(1) determine whether MDARD is entitled to reimbursement; (2) determine whether the contemnors sufficiently complied with the trial court’s orders to be returned the second fine, in whole or in part; or (3) some combination of (1) and (2)”).

See also Section 2.2(A) discussing civil sanctions.

2.Ability to Pay

Note that “[t]he court shall not sentence a person to a term of incarceration for nonpayment unless the court has complied with the provisions of MCR 6.425(D)(3).” MCR 3.606(F). MCR 6.425(D)(3) addresses incarceration for nonpayment, requires an ability to pay determination, provides for payment alternatives, and offers guidance for determining manifest hardship. For a detailed discussion of MCR 6.425(D)(3), see the Michigan Judicial Institute’s Criminal Proceedings Benchbook Vol. 2, Chapter 8. “Proceedings to which the Child Support and Parenting Time Enforcement Act, MCL 552.602 et seq., applies are subject to the requirements of that act.” MCR 3.606(F).

The contemnors’ ability to pay argument was “moot” where they did not seek any kind of hearing regarding the amount of the fine or their ability to pay, and “tendered the full amount of the fine immediately.” In re Contempt of Pavlos-Hackney, 343 Mich App 642, 677, 677 n 14 (2022) (noting that “financial liquidity alone is not dispositive,” but consideration of whether the contemnors suffered a hardship was not necessary where “the contemnors never even tried to obtain a hearing regarding either of the contempts, even though they were invited to do so and clearly could have done so”).

B.Permissible Sanctions for Criminal Contempt

Following a finding of criminal contempt, the court may order any or all of the following sanctions:

•an unconditional and fixed jail sentence of up to 93 days;

•a fine of not more than $7,500; and

•probation. MCL 600.1715(1).

1.Additional Expenses for Certain Findings of Criminal Contempt

The defendant may be ordered to pay certain expenses upon a finding of guilt for criminal contempt for violation of a PPO issued under MCL 600.2950 or MCL 600.2950a, for violation of a foreign protection order that satisfies the conditions for validity provided in MCL 600.2950i, or for failing to appear in court as ordered by the court. MCL 769.1f(1)(i); MCL 769.1f(1)(l). Specifically, “in addition to any other penalty authorized by law, the court may order the person convicted to reimburse the state or a local unit of government for expenses incurred in relation to that incident including, but not limited to, expenses for an emergency response and expenses for prosecuting the person[.]” MCL 769.1f(1).

MCL 769.1f(2) lists all of the expenses for which reimbursement may be ordered. “If police, fire department, or emergency medical service personnel form more than 1 unit of government incurred expenses as described in [MCL 769.1f(2)], the court may order the person convicted to reimburse each unit of government for the expenses it incurred.” MCL 769.1f(3). Reimbursement is generally due immediately, but the court has discretion to order reimbursement over a specified period or specified installments. MCL 769.1f(4). Reimbursement ordered under MCL 769.1f must be a condition of any probation or parole. MCL 769.1f(5).

2.Ability to Pay

Note that “[t]he court shall not sentence a person to a term of incarceration for nonpayment unless the court has complied with the provisions of MCR 6.425(D)(3).” MCR 3.606(F). MCR 6.425(D)(3) addresses incarceration for nonpayment, requires an ability to pay determination, provides for payment alternatives, and offers guidance for determining manifest hardship. See also MCL 769.1f(7) (stating “[n]otwithstanding any other provision of [MCL 769.1f], a person shall not be imprisoned, jailed, or incarcerated for a violation of parole or probation, or otherwise, for failure to make a reimbursement as ordered under [MCL 769.1f] unless the court determines that the person has the resources to pay the ordered reimbursement and has not made a good faith effort to do so”). For a detailed discussion of MCR 6.425(D)(3), see the Michigan Judicial Institute’s Criminal Proceedings Benchbook Vol. 2, Chapter 8. See also the Michigan Judicial Institute’s Ability to Pay Benchcard for more information on the ability to pay determination.

“Proceedings to which the Child Support and Parenting Time Enforcement Act, MCL 552.602 et seq., applies are subject to the requirements of that act.” MCR 3.606(F).

3.“Other Conditions” as Part of Sentence Following Criminal Contempt Conviction for Violating PPO

“MCR 3.708(H)(5) governs sentencing in criminal-contempt proceedings for violation of a PPO[.]” In re SB, ___ Mich App ___, ___ (2024). MCR 3.708(H)(5) gives a trial court discretion to “impose other conditions to the personal protection order.” SB, ___ Mich App at ___. “[MCR 3.708(H)(5)] grants the trial court discretionary authority to impose other conditions to a PPO in connection with its sentence only after a respondent is convicted of criminal contempt. SB, ___ Mich App at ___.

“MCR 3.708(H)(5) explicitly provides different punishments for criminal-contempt cases involving a PPO violation and civil-contempt cases involving a PPO violation . . . .” LAC v GLS, ___ Mich App ___, ___ (2024). “In the case of civil contempt, [MCR 3.708(H)(5)(b)] explicitly adopts the sanctions provided in MCL 600.1715 and MCL 600.1721.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). Additionally, “[b]oth statute and court rule provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” Id. at ___. “Taxation of costs is generally not allowed absent authority flowing from a statute or court rule.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). “There is nothing in the sentencing scheme in MCR 3.708(H)(5) that expresses an abrogation of this general rule in the case of contempt as a result of a PPO violation.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). “Therefore, criminal contempt sanctions under [MCR 3.708(H)(5)(a)] do not include the indemnification provisions of MCL 600.1721.” LAC, ___ Mich App at ___ (quotation marks and citation omitted). Thus, “the trial court erred when it ruled that attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO.” Id. at ___.

C.Only Statutorily Authorized Punishments are Permitted

MCL 600.1715 limits the amount of any fine or jail sentence that a court may impose for a single finding of contempt. In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 718-719 (2000) (holding that MCL 600.1715(1) unambiguously limits the amount a trial court may order a contemnor to pay for a single act of contempt);² Ann Arbor v Danish News Co, 139 Mich App 218, 237 (1984) (holding that “both penalties provided for in the statute indicate a maximum penalty”).

Accordingly, the following contempt sanctions were improperly imposed because they were not authorized by the statute:

•An order imposing a monetary fine and a jail sentence “with a proviso for an additional jail sentence for a fixed term upon failure to pay the fine[]” was improper because the alternative sentence was not authorized by the statute. Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 223 (1966) (construing a predecessor to MCL 600.1715(1)).

•An order that the city pay the statutory maximum fine for every day it remained in contempt was improper because there was only a single finding of contempt. Catsman v Flint, 18 Mich App 641, 649 (1969) (noting that it was not suggesting “that a court could not make a subsequent finding of a reiterated or continuing contempt and impose the maximum statutory fine for such subsequent contempt[]”).

•The plaintiff conceded on appeal that the order providing for an alternative jail sentence of an additional six months if the fine was not paid on time was not authorized by MCL 600.1715(1). Danish News Co, 139 Mich App at 236.

•A fine of $100 per day (totaling over the statutory limit) was improper after finding a person in contempt of court for violating an order enforcing an injunction regarding construction of property because the court found only a single finding of contempt. In re Contempt of Johnson, 165 Mich App 422, 424, 428-429 (1988). This daily fine was improper despite the fact that the contemnor’s conduct violated a criminal ordinance that permitted a daily fine for each day a person is in violation because the contemnor was not convicted of the criminal ordinance, but rather, was found in contempt of court; accordingly, the permissible sanctions were governed by MCL 600.1715. In re Contempt of Johnson, 165 Mich App at 429.

•A fine of $500 for a single act of contempt when the statutory limit was $250 was improper because it exceeded the statutory limit. In re Contempt of Auto Club Ins Ass’n, 243 Mich App at 718-719.³

•An extension of a personal protection order (PPO) was proper under MCR 3.708(H), which “grants the trial court discretionary authority to impose other conditions to a PPO in connection with its sentence only after a respondent is convicted of criminal contempt.” In re SB, ___ Mich App ___, ___ (2024).

•The award of attorney fees was improper in a criminal contempt proceeding for violation of a PPO because “MCR 3.708(H)(5) explicitly provides different punishments for criminal-contempt cases involving a PPO violation and civil-contempt cases involving a PPO violation, and . . . only MCR 3.708(H)(5)(b) permitted the award of costs as set forth in MCL 600.1715 and MCL 600.1721 for civil contempt.” LAC v GLS, ___ Mich App ___, ___ (2024), citing Eldridge v Eldridge, unpublished per curiam opinion of the Court of Appeals, issued October 28, 2008 (Docket No. 278470).

D.Fines Must Generally be Paid to State Treasury

Const 1963, art 6, § 7 states, in part, that “[a]ll fees and perquisites collected by the court staff shall be turned over to the state treasury and credited to the general fund.” Accordingly, the trial court erred by ordering the contemnor to pay the contempt fine to a charity. In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 720 (2000). The Court explained that contempt fines are perquisites⁴ because the fines are “income to the trial court above and beyond the money allocated in the annual budget.” Id. at n 49 720. Michigan courts lack “the discretion to designate a beneficiary” for fines imposed in contempt cases because Const 1963, art 6, § 7 applies to all Michigan courts. In re Contempt of Auto Club Ins Ass’n, 243 Mich App at 720. However, the Court noted that “there are circumstances in which a circuit court may spend public money to support necessary services for the judiciary,” but found that the circumstances in the case did not permit that type of spending because it involved private money being paid to a private recipient that was completely distinct from the judiciary and did not offer any services to the judiciary. Id. at 720-721.

Note that fines imposed as compensatory sanctions are paid to the person who suffered an actual loss or injury. See Section 4.3.