1.3Exercise of the Contempt Power

A.Inherent Authority

The authority of the courts to punish for contempt is inherent in the judicial power vested in courts by Const 1963, art 6, § 1. In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 708 (2000). The Michigan Supreme Court explained this inherent power:

“There is inherent power in the courts, to the full extent that it existed in the courts of England at the common law, independent of, as well as by reason of statute[,] which is merely declaratory and in affirmation thereof, to adjudge and punish for contempt, and determination of the issue is not for a jury but the court. Such inherent power extends not only to contempt committed in the presence of the court, but also to constructive contempt arising from refusal of defendant to comply with an order of the court. Such power, being inherent and a part of the judicial power of constitutional courts, cannot be limited or taken away by act of the legislature nor is it dependent on legislative provision for its validity or procedures to effectuate it.” In re Huff, 352 Mich 402, 415-416 (1958) (internal citations omitted).

“This inherent judicial power to punish contempt, which is essential to the administration of the law, does not include the power to mete out certain punishments for contemptuous acts beyond those contempt powers inherent in the judiciary.” In re Bradley Estate, 494 Mich 367, 394-395 (2013) (concluding that the punishment authorized in MCL 600.1721, indemnification damages for civil contempt, does not implicate the judiciary’s inherent contempt power).

B.Specific Authority Granting Courts Contempt Powers

In addition to the inherent judicial power to punish for contempt, specific laws have affirmed the authority of courts to use the contempt power. The following courts possess the contempt power:

•The Michigan Supreme Court. MCL 600.1701.

•The Michigan Court of Appeals. Const 1963, art 6, § 19 (providing that the Court of Appeals is a court of record); MCL 600.1701 (providing all courts of record have the contempt power). See also In re Albert, 383 Mich 722, 724 (1970).

•Circuit Courts. MCL 600.1701.

•Court of Claims.    MCL 600.6428 states that “[t]he [C]ourt of [C]laims is hereby given the same power . . . to punish for contempt as the circuit courts of this state now have or may hereafter have.” See also MCL 600.1416(1)(e) (providing that the Court of Claims is a court of record); MCL 600.1701 (providing all courts of record have the contempt power).

•District and Municipal Courts. MCL 600.8317 states in part that district courts have “the same power to . . . punish for contempt as the circuit court now has or may hereafter have.” MCL 600.6502 states that municipal courts are “governed by statutes and supreme court rules applicable to the district court,” except as otherwise provided.

•Probate Courts. MCL 600.801 (providing that the probate court is a court of record); MCL 600.1416(1)(c) (providing that the probate court is a court of record); MCL 600.1701 (providing all courts of record have the contempt power).

C.Statutory Provisions Illustrating Use of Courts’ Contempt Powers

The courts’ inherent power to punish contempt of court is not limited by statute. See In re Bradley Estate, 494 Mich at 394; Langdon v Judges of Wayne Circuit Court, 76 Mich 358, 367 (1889) (“The statutes are in affirmation of the common-law power of courts to punish for contempts, and, while not attempting to curtail the power, they have regulated the mode of proceeding and prescribed what punishment may be inflicted.”). However, the penalties available are limited to those provided by statute. See Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 223 (1966). The Legislature has provided for the use of the contempt power in certain situations, codifying the courts’ inherent power. See MCL 600.1701 et seq. The broadest of these statutes, MCL 600.1701, contains provisions illustrative of the uses of the contempt power, stating:

“The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:

(a) Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority.

(b) Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings.

(c) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner elected or appointed to perform any judicial or ministerial services, for any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobedience of any process of the court, or any lawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge.

(d) Parties to actions for putting in fictitious bail or sureties or for any deceit or abuse of the process or proceedings of the court.

(e) Parties to actions, attorneys, counselors, and all other persons for the nonpayment of any sum of money which the court has ordered to be paid.

(f) Parties to actions, attorneys, counselors, and all other persons for disobeying or refusing to comply with any order of the court for the payment of temporary or permanent alimony or support money or costs made in any action for divorce or separate maintenance.

(g) Parties to actions, attorneys, counselors, and all other persons for disobeying any lawful order, decree, or process of the court.

(h) All persons for assuming to be and acting as officers, attorneys, or counselors of any court without authority; for rescuing any property or persons that are in the custody of an officer by virtue of process issued from that court; for unlawfully detaining any witness or party to an action while he or she is going to, remaining at, or returning from the court where the action is pending for trial, or for any other unlawful interference with or resistance to the process or proceedings in any action.

(i) All persons who, having been subpoenaed to appear before or attend, refuse or neglect to obey the subpoena, to attend, to be sworn, or when sworn, to answer any legal and proper interrogatory in any of the following circumstances:

(i) As a witness in any court in this state.

(ii) Any officer of a court of record who is empowered to receive evidence.

(iii) Any commissioner appointed by any court of record to take testimony.

(iv) Any referees or auditors appointed according to the law to hear any cause or matter.

(v) Any notary public or other person before whom any affidavit or deposition is to be taken.

(j) Persons summoned as jurors in any court, for improperly conversing with any party to an action which is to be tried in that court, or with any other person in regard to merits of the action, or for receiving communications from any party to the action or any other person in relation to the merits of the action without immediately disclosing the communications to the court.

(k) All inferior magistrates, officers, and tribunals for disobedience of any lawful order or process of a superior court, or for proceeding in any cause or matter contrary to law after the cause or matter has been removed from their jurisdiction.

(l) The publication of a false or grossly inaccurate report of the court’s proceedings, but a court shall not punish as a contempt the publication of true, full, and fair reports of any trial, argument, proceedings, or decision had in the court.

(m) All other cases where attachments and proceedings as for contempts have been usually adopted and practiced in courts of record to enforce the civil remedies of any parties or to protect the rights of any party.” MCL 600.1701.

D.Contempt Penalties Limited by Statute

Although courts have inherent contempt powers, where the Legislature provides penalties for contempt of court, courts must abide by such provisions unless they are unconstitutional. Cross Co v UAW Local No 155 (AFL-CIO), 377 Mich 202, 223 (1966); Catsman v Flint, 18 Mich App 641, 648-650 (1969). Accordingly, “even though a court’s power to punish for contempt has been conceived of as inherent and not created by statute, where the legislature has laid down prescriptions for the punishment of contempt, courts must act within the framework and limits of the statutory enactment.” Catsman, 18 Mich App at 649, discussing Cross, 377 Mich 202.

For example, the Court of Appeals held that MCL 600.1715(1) unambiguously limits the amount a trial court may order a contemnor to pay for a single act of contempt, and noted the trial court’s imposition of a greater fine would require “corrective action.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 718-719 (2000).¹

Additionally, the Court of Appeals held that “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 concluded that 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.”² LAC v GLS, ___ Mich App ___, ___ (2024). Further, the Court was “persuaded that the same analysis applies to the question of whether attorney fees may be awarded in cases of criminal contempt.” Id. “Both statute and court rule provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” Id.

E.Basis of Order Violated Cannot be Reconsidered

“[T]he longstanding rule is that ‘a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.’” In re JCB, 336 Mich App 736, 747 (2021), quoting United States v Rylander, 460 US 752, 756 (1983).