Civil vs Criminal Contempt in North Carolina

Criminal Contempt

Criminal contempt is used as a punishment when a person disobeys or otherwise violates a court order, or if he or she disrupts a court proceeding. However, the holding of someone in criminal contempt of court is not something which is done at the discretion of the judge. State law provides a specific list of grounds for which criminal contempt can be imposed:

1. Willful behavior committed during the sitting of a court and directly tending to interrupt its proceedings.
2. Willful behavior committed during the sitting of a court in its immediate view and presence and directly tending to impair the respect due its authority.
3. Willful disobedience of, resistance to, or interference with a court’s lawful process, order, directive, or instruction or its execution.
4. Willful refusal to be sworn or affirmed as a witness, or, when so sworn or affirmed, willful refusal to answer any legal and proper question when the refusal is not legally justified.
5. Willful publication of a report of the proceedings in a court that is grossly inaccurate and presents a clear and present danger of imminent and serious threat to the administration of justice, made with knowledge that it was false or with reckless disregard of whether it was false. No person, however, may be punished for publishing a truthful report of proceedings in court.
6. Willful or grossly negligent failure by an officer of the court to perform his duties in an official transaction.
7. Willful or grossly negligent failure to comply with schedules and practices of the court resulting in substantial interference with the business of the court.
8. Willful refusal to testify or produce other information upon the order of a judge acting pursuant to Article 61 of Chapter 15A, Granting of Immunity to Witnesses.
9. Willful communication with a juror in an improper attempt to influence his deliberations.
10. Willful refusal by a defendant to comply with a condition of probation.
11. Any other act or omission specified elsewhere in the General Statutes of North Carolina as grounds for criminal contempt.

N.C.G.S. 5A-11(a) (emphasis added).

So, for the layperson, criminal contempt can be imposed if you (1) disrupt court, (2) disrespect the court, (3) disobey a court order, (4) refuse to be sworn or, if sworn, refuse to testify as a witness, (5) lie about court proceedings in such a way as to cause imminent and serious danger, (6) fail to show up to your court date, (7) tamper with a juror, or (8) violate your probation. An opposing party can move (ask) the court to hold you in contempt, or the court can do it on its own.

For example, in State v. Wheeler, 174 N.C. App. 367, 2005 WL 2850891 (2005) (unpublished), during a probable cause hearing, the defendant asked the magistrate whether the magistrate wanted the defendant to “kiss his ass,” and in response to the threat of contempt said, “I don’t give a damn, give me ninety days.” He was given ninety days.

Very important note: criminal contempt cannot be imposed unless the person was given “a clear warning by the court that the conduct is improper” or the act was “willfully contemptuous.” N.C.G.S. 5A-12(b)(2).

As you can see in each of the grounds listed above, each one requires “willfulness.” Willfulness is defined as an act “done deliberately and purposefully in violation of law, and without authority, justification, or excuse.” State v. Chriscoe, 85 N.C. App. 155, 158 (1987). It is “more than deliberation or conscious choice; it also imports a bad faith disregard for authority and the law.” Forte v. Forte, 65 N.C. App. 615, 616 (1983).

If you are found in criminal contempt, the next step in the process is one of two things: if the contempt was “direct,” i.e. committed in the presence of the judge, then the judge will usually hold what is known as a summary proceeding (though he can order a plenary proceeding [see below]). In this kind of proceeding, the defendant is given notice of the basis for the contempt and an opportunity to respond. The notice does not have to be given in writing. The judge MUST give you an opportunity to explain yourself, otherwise the order for contempt can be overturned.

Very important note: you CAN be arrested and put in jail for direct criminal contempt!

Alternatively, if the contempt was “indirect,” i.e. did not occur in front of the judge, the judge will hold what is known as a plenary proceeding. Prior to the proceeding, the judge will issue a “show cause” order—effectively requiring you to appear before the court and explain why you should not be held in contempt. Note that if the judge orders a plenary proceeding and the contemptuous behavior “so involve him that his objectivity may reasonably be questioned,” the proceeding must be done before a different judge. N.C.G.S. 15A-15(a).

Very important note: if you fail to attend your “show cause” hearing, the court has the discretion to issue an order for your arrest!

In order to find you guilty of criminal contempt in either a summary or a plenary proceeding, the State must establish guilt beyond a reasonable doubt, the same standard as any other criminal proceeding.

The maximum penalty for a single instance of criminal contempt in North Carolina is 30 days’ imprisonment and/or a $500 fine. However, if you fail to comply with a nontestimonial identification order (e.g., ordering you to provide fingerprints), the maximum is 90 days, if you fail to pay child support, the maximum is 120 days, and if you are found in contempt for failing to testify after being given immunity, the maximum is six months’ imprisonment. In any case, while you DO NOT have a right to a jury trial, you DO have a right to appointed counsel if (1) you are indigent and (2) you are likely to be imprisoned or fined $500 or more. In addition to these punishments, you will be responsible for the costs of court. One piece of good news, however, is that even if you are found in contempt and punished accordingly, it does not count against you for future sentencing purposes. You also have a right against self-incrimination and cannot be compelled to testify against yourself.

Finally, if you are convicted of criminal contempt, you have the right to appeal. If the conviction occurred in magistrate court or District Court, your proper venue for appeal is to Superior Court. If your appeal fails, or if the conviction originated in Superior Court, your proper venue for appeal is the Court of Appeals in Raleigh, followed by the State Supreme Court.

Civil Contempt

Civil contempt is not intended to be a punishment for past actions. Rather, it is a means to force compliance with an existing court order. Because of this, any order for civil contempt is required to provide an “out” for the person being held in contempt—e.g., if you are held in civil contempt for failure to transfer a deed, the order must provide that your imprisonment will end upon the delivery of the deed.

Very important note: if an order for civil contempt does not provide this “out,” it is INVALID.

Unlike for criminal contempt, an order for civil contempt must be in writing. Also unlike criminal contempt, there is no distinction between direct and indirect civil contempt. Civil contempt proceedings are nearly identical to plenary proceedings discussed above. A party may move (ask) the court to hold you in civil contempt, or the court can set a hearing on its own. However the proceeding originates, the party (or judge) must include an affidavit explaining the basis for contempt unless you appear in court to answer the charges. You must receive at least five (5) days’ notice prior to the hearing date unless the judge can show good cause to shorten the notice period.

Very important note: while the notice of hearing for civil contempt is NOT an order from the court, your failure to appear may result in your being held in CRIMINAL contempt, for which an order for your arrest may be issued.

Like criminal contempt, you do not have a right to a jury trial in a civil contempt proceeding. The question of your right to counsel is a little more complicated. If you are indigent and the likelihood of imprisonment is high, you may ask to be appointed an attorney. However, the right to counsel is only implicated if you are actually imprisoned, so if the court decides not to put you in jail, it doesn’t matter whether you were appointed counsel.

Another difference is the standard of proof—the party asking for contempt need only establish contempt by a preponderance of the evidence (50%+1 likelihood). The burden of proof is on the party asking for contempt until the judge finds probable cause for contempt and issues a show cause order, in which case the burden shifts to the defendant to show why he should not be held in contempt.

Again, like criminal contempt, a finding of civil contempt requires a showing that your contemptuous conduct was “willful.” “[T]he evidence must show that the person was guilty of ‘knowledge and stubborn resistance; in order to support a finding of willful disobedience.” Sharpe v. Nobles, 127 N.C. App. 705, 709 (1997).

Very important note: a prerequisite to being held in civil contempt is your ability to actually comply with the order in question. If you physically cannot comply, there is no contempt! Additionally, if you comply with the order by the time of the hearing, there is no contempt!

One more key difference between civil and criminal contempt is the right against self-incrimination. Civil contempt proceedings DO NOT allow for this right, so consult with your attorney before presenting any evidence.

If you are found in civil contempt, the only punishment is imprisonment until compliance. The length of time of said imprisonment—“until compliance”—is nonetheless subject to some limitations. N.C.G.S. 5A-21 states that imprisonment may continue indefinitely if the contempt is for something other than paying money or for failure to pay child support.

If the contempt is for failure to pay something other than child support, the maximum is 90 days’ imprisonment. If you still have not complied after 90 days, the court can hold another hearing and sentence you to another 90 days. This cycle can repeat until one full year has been served, at which point civil contempt is no longer available for failure to pay. If the contempt is for failure to comply with a nontestimonial identification order (e.g., an order to provide fingerprints), the maximum is 90 days total.

Very important note: you cannot be awarded costs for a civil contempt motion in North Carolina unless the order in question is a settlement agreement adopted as an order by the court and the agreement specifically provides for the award of the costs of enforcement.

Very important note for lawyers: attorney’s fees are not available in civil contempt proceedings except in the following limited circumstances: (1) where the order is a settlement agreement enforced as a consent order that specifically provides for indemnification of enforcement costs (PCI Energy Services v. Wachs Technical Services, Inc., 122 N.C. App. 436 (1996)); (2) where the contempt is for failure to pay child support (Blair v. Blair, 8 N.C> App. 61 (1970)); (3) where the contempt is to enforce equitable distribution (Hartsell v. Hartsell, 99 N.C. App. 380 (1990)); or (4) where the contempt is for failure to pay alimony (Shumaker v. Shumaker, 137 N.C. App. 72 (2000)).

If you are found in civil contempt, you have the right to appeal your conviction. The proper venue for appeal, whether the conviction originates from the Clerk of Superior Court, District Court, or Superior Court, is the Court of Appeals in Raleigh, followed by the State Supreme Court. Once you give your notice to appeal, the trial court loses its jurisdiction and cannot enforce its punishment until the appeal is settled UNLESS the contempt is for failure to pay child support, failure to follow a custody order, or failure to pay alimony.

Contempt by a Juvenile

There are a few specific rules where the contemnor is a juvenile:

1. Juveniles are unemancipated individuals between 6 and 18 years old;
2. A juvenile can be held in contempt for any reason that an adult can be held in criminal contempt, but the proceedings are different if the contempt is indirect.
3. Proceedings for direct contempt are identical to adult criminal contempt proceedings except that the judge must do the following prior to imposing punishment:
   1. Give the juvenile summary notice of the contempt allegation and a summary opportunity to respond;
   2. Appoint an attorney to represent the juvenile and allow time for the juvenile and attorney to confer; and
   3. Find facts supporting the summary imposition of measures in response to contempt by a juvenile… established beyond a reasonable doubt.
4. Proceedings for indirect contempt are governed by Subchapter II of Chapter 7B of the General Statutes, which is not covered here.
5. The punishment for juvenile contempt can include any or all of the following:
   1. Detention in a juvenile detention facility for up to five days.
   2. Up to 30 hours of supervised community service.
   3. Evaluation to determine the needs of the juvenile.
6. If a minor is over the age of six and is either married or otherwise emancipated, or has been convicted in Superior Court of any criminal offense, the minor is subject to adult contempt rules.

For further details, consult Michael Crowell’s article “Contempt.” Contempt | UNC School of Government. keeping in mind that the article is from 2014 and some laws have changed since its publication.