Contempt of Court in New York: Civil Contempt v. Criminal Contempt (and the privilege against self-incrimination)

Judge Rayford: Mr. Kirkland you are out of order!

Arthur Kirkland: You're out of order! You're out of order! The whole trial is out of order! They're out of order! 

...And Justice for All (1979)

While everyone has heard of being in “contempt of court,” this article discusses the legal principles of contempt proceedings, the differences between civil and criminal contempt, and the privilege against self-incrimination in a contempt proceeding.

Civil Contempt v. Criminal Contempt

There are two types of contempt of court -- civil contempt and criminal contempt. Although the same act may be punishable as both a civil and a criminal contempt, the two types of contempt serve different purposes and have different requirements.

1.  Civil Contempt

“A civil contempt is one where the rights of an individual have been harmed by the contemnor’s failure to obey a court order . . . Any penalty imposed is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both.” Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239, 519 N.Y.S.2d 539, 513 N.E.2d 706 (1987). “Imposing a civil contempt sanction as a solely punitive measure is in a sense an aberration from the generally recognized distinction between criminal and civil contempt and the function of civil contempt.” N.A. Dev. Co. v. Jones, 99 A.D.2d 238, 240, 472 N.Y.S.2d 363, 365 (1st Dep’t 1984); see also State v. Unique Ideas, Inc., 44 N.Y.2d 345, 348, 4-5 N.Y.S.2d 656, 658 (1978) (unlike … criminal contempt where deterrence is the aim . . . civil contempt … must be remedial in nature and effect”); Moran v. Philmont, 147 A.D.2d 230, 235, 542 N.Y.S.2d 873, 876 (3d Dep’t 1989) (“fine for civil contempt must be remedial in nature and designed only to compensate the aggrieved party”).

A court's power to punish for civil contempt is found in New York Judiciary Law § 753, which lists the circumstances in which a person may be held in civil contempt, including:

1. misbehavior or disobedience by an officer of the court (attorney, clerk, sheriff, etc.),
2. a party posting fictitious bail or a fictitious surety or any other deceit,
3. nonpayment of certain sums of money,
4. rescuing property or impeding testimony, without authority,
5. refusing to obey a subpoena,
6. improper communications by a juror,
7. disobedience of a higher court by a lower court,
8. any other case where civil contempt has traditionally been used.

New York CPLR § 5251 also establishes that refusal or willful neglect of any person to obey a subpoena or restraining notice; false swearing upon an examination or in answering written questions; and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court. New York Domestic Relations Law § 245, authorizes the use of civil contempt proceedings to enforce a money judgment in a divorce case.

The three elements of of civil contempt are: (1) a lawful judicial order expressing an unequivocal mandate must have been in effect and disobeyed, (2) the party to be held in contempt must have had knowledge of the order, and (3) prejudice to the rights of a party to the litigation must be demonstrated. McCain v. Dinkins, 84 N.Y.2d 216, 226, 616 N.Y.S.2d 335, 341, 639 N.E.2d 1132, 1138 (1994).

The third element -- prejudice -- is usually the most difficult element to prove, but failing to demonstrate prejudice is fatal to a contempt motion. See Matter of Peer, 50 A.D.3d 1511, 1512, 856 N.Y.S.2d 385, 387 (4th Dep’t 2008) (contempt motion denied where there was no showing of prejudice based on delay in producing documentation and information); El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 12, 978 N.Y.S.2d 239, 246 (2d Dep’t 2013) (for civil contempt, there must be a finding that a “right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced….[t]he element of prejudice to a party’s rights is essential to civil contempt.”).

The standard of proof to find someone in civil contempt is "reasonable certainty." Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583, 466 N.Y.S.2d 279, 283, 453 N.E.2d 508, 513 (1983); Matter of Hynes v. Hartman, 63 A.D.2d 1, 406 NYS 2d 818 (1st Dept 1978).

An application to punish for civil contempt may be made by order to show cause, pursuant to New York Judiciary Law § 756.

“New York law permits the party in contempt to purge the contempt by performing the act required, or by undoing or reversing the acts constituting the contempt. Silverstein v. Aldrich, 76 A.D.2d 911, 429 N.Y.S.2d 41 (2d Dep’t 1980).” Chue v. Clark, 46 Misc. 3d 973, 989, 999 N.Y.S.2d 676, 688 (S.Ct. Monroe County 2014); see also Dankner v. Steefel, 41 A.D.3d 526, 528, 838 N.Y.S.2d 601, 604 (2d Dep’t 2007) (court should have provided opportunity to purge contempt); Pronti v. Allen, 13 A.D.3d 1034, 1036, 787 N.Y.S.2d 470, 472 (3d Dep’t 2004) (“contemnor generally allowed an opportunity to purge the contempt by performing the act required …”).

The penalties for civil contempt, pursuant to Judiciary Law § 774, include:

• imprisonment until the act is performed (if within the offender's power),
• a fine (discussed below),
• if the act has been performed, no more than 3 months to pay a fine less than $500,
• if the act has been performed, no more than 6 months to pay a fine more than $500.

With regard to imprisonment, Judiciary Law § 775 provides that “Where the commitment was made to punish a contempt of court committed with respect to an enforcement procedure under the civil practice law and rules, and the offender has purged himself of contempt as provided in section seven hundred seventy-two or seven hundred seventy-three of this article, the court out of which the execution was issued shall make an order directing him to be discharged from the imprisonment.”

With regard to the fine, Judiciary Law § 773 authorizes the imposition of two different types of fines. First, where actual loss or injury has resulted from a party’s misconduct, a fine may be imposed sufficient to indemnify the aggrieved party. Second, where it is not shown that an actual loss or injury has been cause, a fine may be imposed, not exceeding the amount of the complainant’s costs and expenses, plus $250. See Judiciary Law § 773; State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 658, 376 N.E.2d 1301, 1303 (1978). Unlike fines for criminal contempt where deterrence is the goal, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants. Id.

No fine may be imposed, unless there has been a finding of contempt. See Van Nostrand v. Town of Denning, 203 A.D.2d 687, 610 N.Y.S.2d 356, 357 (3d Dep’t 1994) (“no finding of contempt having been made, there was no basis for the imposition of a fine (see, Matter of Bender & Bodnar v. Buell, 143 A.D.2d 661, 662, 533 N.Y.S.2d 17 (2d Dep’t 1988)”); see also Bank of Am., N.A. v. Sigo Mfr. L.L.C., 2012 N.Y. Misc. LEXIS 99 (S.Ct. Albany County 2012) (fine consisting of Plaintiff’s costs in bringing contempt motion waived if contempt purged).

If, however, the Court makes a finding of civil contempt and imposes a fine for costs and expenses, the prevailing party is required to submit an affidavit that specifies “in detail the time spent, the hourly rate and the nature and extent of the services rendered.” See Young Woo & Assoc., LLC v. Kim, 2012 N.Y. Misc. LEXIS 6413 *9, 2012 NY Slip Op 33437(U) (S.Ct. New York County 2012) (citing Blau v. Blau, 309 A.D.2d 672, 673, 766 N.Y.S.2d 347 (1st Dep’t 2003) (citing Skidelsky v. Skidelsky, 279 A.D.2d 356, 719 N.Y.S.2d 88 (1st Dep’t 2001)). See also Vider v. Vider, 85 A.D.3d 906, 908, 925 N.Y.S.2d 189, 192 (2d Dep’t 2011) (where no showing of actual damages resulting from contempt, fine capped at $250).

A prevailing party bears the burden of showing by sufficient evidence that the attorney’s fees sought are reasonable, and the Court has the discretion to determine that the amount of any legal fees is reasonable. Young Woo & Assoc., LLC v. Kim, 2012 N.Y. Misc. LEXIS 6413 *9.

2.  Criminal Contempt

Criminal contempt can be punished under both the Judiciary Law and New York's Penal Law.

Criminal Contempt Under the Judiciary Law

A criminal contempt under the Judiciary Law involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates. Unlike civil contempt, the aim in a criminal contempt proceeding is solely to punish the contemnor for disobeying a court order, the penalty imposed being punitive rather than compensatory. State v. Unique Ideas, Inc., 44 N.Y.2d 345, 349, 405 N.Y.S.2d 656, 658, 376 N.E.2d 1301, 1303 (1978).

A court's power to punish for criminal contempt found in Judiciary Law § 750 lists the circumstances in which a person may be held in criminal contempt, including:

1. disorderly, contemptuous, or insolent behavior in the presence of the court,
2. disturbances which interrupt the court proceedings,
3. willful disobedience of a lawful mandate,
4. willful resistance of a lawful mandate,
5. refusal to be sworn as a witness or answer questions,
6. publication of false or grossly inaccurate reports of court proceedings,
7. failure to respond to a jury summons,
8. unlawful practice of law.

The elements for criminal contempt are similar to civil contempt, except that no showing of "prejudice" is needed since the right of the private parties to the litigation is not the controlling factor in criminal contempt.

Courts have also recognized the degree of "willfulness" as another distinguishing element between civil and criminal contempt. To be found guilty of criminal contempt, the contemnor must be shown to have violated the order with a higher degree of willfulness than is required in a civil contempt proceeding. See Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 542, 513 N.E.2d 706, 709 (1987) (citing Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 583).

For example, Judiciary Law § 753 (a)(1) (civil contempt) authorizes a finding of civil contempt "for disobedience to a lawful mandate of the court." In comparison, Judiciary Law § 750 (criminal contempt) authorizes a court to punish for "willful disobedience to its lawful mandate." (emphasis supplied). But see, New York CPLR § 5251 ("willful neglect of any person to obey a subpoena and willful defacing or removal of a posted notice of sale before the time fixed for the sale, shall each be punishable as a contempt of court"); see also, Judiciary Law § 753 (a)(1) (civil contempt for "willful neglect of [judicial] duty;" Judiciary Law § 753 (a)(4) (civil contempt for "willfully preventing, or disabling from attending or testifying, a witness, or party to an action").

The standard of proof for criminal contempt is proof beyond a reasonable doubt. County of Rockland v. Civil Serv. Emples. Ass'n, 62 N.Y.2d 11, 14, 475 N.Y.S.2d 817, 818, 464 N.E.2d 121, 122 (1984) ("The applicable standard of proof to establish criminal contempt is proof beyond a reasonable doubt."); Young v. United States ex rel. Vuitton Et Fils S. A., 481 U.S. 787, 798-99, 107 S. Ct. 2124, 2133, 95 L. Ed. 2d 740, 753 (1987) (listing the procedural rights of defendants in criminal contempt proceedings, including proof of guilt beyond a reasonable doubt).

But a 1987 Court of Appeals decision -- decided after the United States Supreme Court decided Young -- suggested that the standard of proof for criminal contempt is the same as for civil contempt - "reasonable certainty." See Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 240, 519 N.Y.S.2d 539, 542, 513 N.E.2d 706, 709 (1987) ("To sustain a finding of either civil or criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect (supra, at 583). It must also appear with reasonable certainty that the order has been disobeyed (citing Pereira v. Pereira, 35 N.Y.2d 301, 308, 361 N.Y.S.2d 148, 154, 319 N.E.2d 413, 418 (1974))."); see also Odimgbe v. Dockery, 153 Misc. 2d 584, 582 N.Y.S.2d 909 (NYC Civil Ct. Kings County 1992) (noting that the standard for both civil and criminal contempt was the same, that of "reasonable certainty") (citing Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y.).

The penalties for criminal contempt, pursuant to New York Judiciary Law § 751, include:

• a fine of up to $1,000,
• 30 days in jail,
• 3 months in jail for violating an order of protection.

Ironically, the penalties for criminal contempt are less severe than the penalties for civil contempt.

If a person is summarily imprisoned for either civil or criminal contempt committed in the presence of the court, the reasons must be stated in writing and are reviewable in an Article 78 proceeding. See New York Judiciary Law §§ 752 and 755. If there is a finding of contempt following a full hearing and an adequate record is established, the contempt finding may be challenged in a direct appeal. See People v. Clinton, 42 A.D.2d 815, 346 N.Y.S.2d 345, 345-346 (3d Dep't 1972) (direct appeal where an adequate record exists).

Criminal Contempt Under The Penal Law

Criminal contempt under the Penal Law is a crime, conviction for which can result in the severe consequences common to all criminal convictions.

Criminal contempt can be prosecuted by the State as a criminal offense (A misdemeanor) under New York Penal Law § 215.50, criminal contempt in the second degree, which mostly tracks the language of Judiciary Law § 750 for the same conduct and adds a prohibition against protesting in front of a courthouse concerning a trial taking place.

To make matters worse, Penal Law § 215.54 specifically authorizes a prosecution for criminal contempt under Penal Law § 215.50, following a finding of contempt under Judiciary Law § 750. Notwithstanding this possibility of dual findings of criminal contempt, Judiciary Law § 776 requires that any punishment under the Penal Law, must take into consideration a previous punishment under the Judiciary Law.

More serious forms of criminal contempt include refusal to be sworn as a grand jury witness, which is an E felony, pursuant to Penal Law § 215.51, criminal contempt in the first degree, as is disobeying an order of protection. There is also a crime of aggravated criminal contempt (D felony), pursuant to Penal Law § 215.52, which addresses repeated contempt violations.

All of the procedural rights that apply to any criminal prosecution -- jury trial, right to counsel, etc. -- apply to criminal prosecutions for criminal contempt.

A Person May Not Be Held In Contempt for Asserting His Privilege Against Self-Incrimination

A fair amount of contempt litigation involves a subpoenaed witness's refusal to answer questions based on the privilege against self-incrimination. New York CPLR § 5251 establishes that refusal or willful neglect of any person to obey a subpoena shall each be punishable as a contempt of court. See also Judiciary Law § 750 (A)(5); Judiciary Law § 753 (A)(5); New York Penal Law § 215.50 (A)(4).

A witness may properly assert his privilege against self-incrimination during either a civil or criminal proceeding. Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973) (explaining that the Fifth Amendment permits an individual “not to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answer might incriminate him”).

A party may not be held in contempt for asserting the privilege against self-incrimination. See El-Dehdan v. El-Dehdan, 114 A.D.3d at 13, 978 N.Y.S.2d at 253 (“The defendant correctly contends that a party may not be held in criminal contempt solely for a justified assertion of the Fifth Amendment privilege.”); County of Orange v. Rodriguez, 283 A.D.2d 494, 724 N.Y.S.2d 477 (2d Dep’t 2001) (“it is well settled that a party may not be held in contempt based upon his or her good faith invocation of the Fifth Amendment privilege against self-incrimination in response to questions posed at a hearing”) (citing United States v. Rylander, 460 U.S. 752, 760 (1983); United States v. Edgerton, 734 F.2d 913 (2d Cir.1984); Federal Deposit Ins. Corp. v. Salesman Unlimited Agency Corp., 101 A.D.2d 876 (2d Dep’t 1984)); see also Ryder v. Harris, 93 A.D.2d 971, 972, 463 N.Y.S.2d 76 (3d Dep’t 1983) (annulling contempt finding and sentence of incarceration where witness asserted Fifth Amendment privilege against self-incrimination); Matter of Solerwitz v. Signorelli, 183 A.D.2d 718, 719, 583 N.Y.S.2d 296 (2d Dep’t 1992) (criminal contempt sanction improper where attorney was directed to turn over estate assets to the Surrogate’s Court, and the attorney asserted the privilege in response to the question of what had become of the assets).

The Supreme Court has held that the Fifth Amendment guarantee must be broadly construed to serve the right it was designed to protect, Arndstein v. McCarthy, 254 U.S. 71, 72-73, 41 S.Ct. 26, 26-27, 65 L.Ed. 138 (1920); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 197, 35 L.Ed. 1110 (1892). “The privilege extends not only to those disclosures that in and of themselves would support a conviction, but also to those that might ‘furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.’” United States v. Lumpkin, 192 F.3d 280, 285 (2d Cir. 1999) (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)).

This also applies to the act of production privilege against self-incrimination. See CVL Real Estate Holding Co. LLC v. Weinstein, 35 Misc. 3d 1215(A), 951 N.Y.S.2d 85 (S.Ct. New York County 2012) (discussing act of production privilege in context of contempt motion) (relying on United States v. Doe, 465 U.S. 605, 104 S. Ct. 1237, 79 L. Ed. 2d 552 (1984)).

The Second Circuit has held that even where the risk of criminal prosecution is slight or remote, a witness may properly assert his privilege against self-incrimination, since it is not for the trial judge to “assess the practical possibility that prosecution would result from incriminatory answers. Such assessment is impossible to make because it depends on the discretion exercised by a United States Attorney or his successor.” United States v. Miranti, 253 F.2d 135, 138 (2d Cir. 1958) (holding that witness can invoke his privilege against self-incrimination where practically there is only a slight possibility of prosecution). See also, In re Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th Cir. 1979) (privilege against self-incrimination is available even where the risk of criminal prosecution is remote).

Determining whether the privilege is available in given circumstances thus involves essentially a factual inquiry. OSRecovery, Inc. v. One Groupe Intl., Inc., 262 F.Supp.2d 302, 306 (S.D.N.Y. 2003). A judge must determine, ‘“from the implications of the question, in the setting in which it is asked,’ whether ‘a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” Id. (citation omitted).

"In assessing the validity of an assertion of Fifth Amendment privilege, the court must look to all of the circumstances of the case and 'be governed as much by personal perceptions of the peculiarities of the case as by the facts actually in evidence.'" G.D. Searle & Co. v. Interstate Drug Exchange, Inc., 117 F.R.D. 495, 500 (E.D.N.Y. 1987) (citing Hoffman, 341 U.S. at 486). The court may "order a witness to answer if it clearly appears he is mistaken as to the justification for the privilege or is advancing his claim as a subterfuge." G.D. Searle & Co., 117 F.R.D. at 500 (internal cite omitted).

In making this determination and when the incriminatory potential of a discovery request is not clear on its face, an in camera conference is consonant with the notion that a witness need not surrender “the very protection that the privilege is designed to guarantee” in order to invoke it. Hoffman, 341 U.S. at 486, 71 S.Ct. at 818.  The Supreme Court has repeatedly looked with favor upon the practice of in camera review of various privileges against disclosure. See United States v. Zolin, 491 U.S. 554, 109 S.Ct. 2619, 2629, 105 L.Ed.2d 469 (1989) (in camera review of applicability of crime-fraud exception to attorney-client privilege); Kerr v. United States District Court, 426 U.S. 394, 406, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (suggesting that in camera review is a “highly appropriate and useful means of dealing with claims of governmental privilege”).

Of course, any assertion of the privilege against self-incrimination must be in good faith. See Federal Deposit Ins. Corp. v. Salesmen Unlimited Agency Corp., 101 A.D.2d 876 (2d Dep't 1984). The Second Department has noted that a court may sanction a party for refusing to answer questions where there is no showing of a good faith basis for invoking the privilege against self-incrimination. El-Dehdan, 114 A.D.3d at 22.