1.2Overview of the Contempt Power

“Contempt of court is a wilful act, omission, or statement that tends to impair the authority or impede the functioning of a court.” In re Contempt of Robertson, 209 Mich App 433, 436 (1995). See also In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 708 (2000).

Examples of contempt of court include disruptive courtroom behavior, failure to appear in court when required, failure to testify when required, and failure to obey a lawful court order.¹ See, e.g., MCL 600.1701 (setting forth acts punishable for contempt); MCL 600.1711 (setting forth acts subject to summary punishment); MCL 767.5 (providing that a witness who fails to appear or answer questions is guilty of contempt).

A.Purpose of Contempt Power

“[T]he primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the courts.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App at 708. See also People v Kurz, 35 Mich App 643, 656 (1971). A secondary purpose of the civil contempt power is “to preserve and enforce the rights of private parties to suits and to compel obedience of orders and decrees made to enforce those rights and administer the remedies to which the court has found the parties are entitled.” In re Contempt of United Stationers Supply Co, 239 Mich App 496, 500 (2000).

B.Sanctions for Contempt

Courts can impose three general types of sanctions to enforce the contempt power. In re Contempt of United Stationers Supply Co, 239 Mich App at 499. For criminal contempt, the court imposes punitive sanctions to vindicate its authority. Id. For civil contempt, the court imposes coercive sanctions to force compliance with its orders. Id. In addition, where actual damage is shown, the court may order compensatory relief for a party. Id. See also United States v United Mine Workers, 330 US 258, 303-304 (1947) (explaining the distinction between the two types of civil contempt sanctions); In re Contempt of Dougherty, 429 Mich 81, 97-98 (1987) (noting that “there are two types of civil contempt sanctions, coercive and compensatory[,]” and that “there are three sanctions which may be available to a court to remedy or redress contemptuous behavior”); MCL 600.1721 (codifying the compensatory sanction without specifically limiting it to civil contempt proceedings).

Criminal contempt sanctions typically include a jail term and fines that are intended to punish past contumacious behavior. See In re Bradley Estate, 494 Mich 367, 379 (2013); MCL 600.1701. Probationary terms may also be imposed in cases of criminal contempt. MCL 600.1715(1). Civil contempt sanctions typically include a fine or jail term that ends when the offending behavior ends, and money damages may be awarded to the injured party. See In re Moroun, 295 Mich App 312, 331, 335 (2012); MCL 600.1715; MCL 600.1721.

Additionally, “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). MCL 600.1715 and MCL 600.1721 “provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” LAC, ___ Mich App at ___ (holding that the trial court erred when it ruled that attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO”).² “[O]nly 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, ___ Mich App at ___.

For a detailed discussion of the differences between civil and criminal contempt, see Section 2.2.

C.Courts Must Exercise Contempt Power With Restraint

There are limitations on the court’s power to punish individuals for contempt. In re Contempt of Dudzinski, 257 Mich App 96, 109 (2003). “‘The contempt power is awesome and must be used with the utmost restraint.’” Id., quoting In re Hague, 412 Mich 532, 555 (1982). The contempt power must be used “judiciously and only when the contempt is clearly and unequivocally shown.” In re Contempt of Dudzinski, 257 Mich App at 109.

When punishing for contempt, courts must exercise “the least possible power adequate to the end proposed[.]” Anderson v Dunn, 19 US 204, 231 (1821). See also In re Contempt of Dudzinski, 257 Mich App at 109.

“Abuse of the contempt power, including unjustified threats to hold persons in contempt, constitutes misconduct warranting discipline.” In re Hague, 412 Mich 532, 555 (1982).

The contempt power was misused under the following circumstances:

•The trial court improperly used the contempt power where it had an individual arrested and jailed for failing to follow an order to appear which contradicted an administrative order from the chief judge requiring all such hearings to be held at a youth home rather than at the court. In re Seitz, 441 Mich 590, 599-604 (1993).

•The trial court improperly used the contempt power where it threatened the prosecutor with contempt if he continued to file prostitution cases. In re Hague, 412 Mich at 554-555.

•The trial court improperly used the contempt power where it held a defense attorney in contempt for sending an associate attorney to represent the defendant instead of personally appearing on the date of the defendant’s trial after the trial court refused to adjourn the trial date at an earlier hearing. People v Matish, 384 Mich 568, 572 (1971) (noting that it could not infer “wilful disregard or disobedience of the authority or orders of the [trial] court[]” in this case).

•The trial court committed legal error when it held three minor children in contempt for failing to comply with its parenting time orders; however, its improper use of the contempt power did not rise to the level of judicial misconduct. In re Gorcyca, 500 Mich 588, 626 (2017). The trial court erred by holding the oldest minor child in contempt for violation of a parenting time order under which he was not obligated and by “unlawfully delegating to the father the discretion to determine when any of the children had purged themselves of contempt.” Id. at 619-620.