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VaLawyer_Feb2012

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Contempt: The Court's Inherent Enforcement Power by Mitchell D. Broudy Mitchell D. Broudy has been practicing law in both the public and pri- vate sectors for more than twenty-five years in southeastern Virginia. He is a 1985 graduate of the Mercer University Law School. Published opinions and contempt statutes make it clear that no one is immune from contempt: not lawyers, clients, witnesses, employees, parents, businesses, or dog owners. Since contempt impacts every area of the law, there is a strong likelihood that at some point the issue will come across every practitioner's desk or counsel table. This article focuses on common law contempt and its relationship with Va. Code Ann. § 18.2-456 et seq. by expounding on the courts' inherent contempt powers, com- mon law rules of contempt and con- tempt's constitutional limitations. Contempt law derives from the inherent powers of the court and not from statute. The power to punish for contempt is inher- ent in the nature and constitution of a court. It is a power not derived from any statute, but arising from necessity; implied, because it is necessary to the exercise of all other pow- ers. Without such power … the administra- tion of the law would be in continual danger of being thwarted by the lawless.1 The Virginia Constitution authorizes the legislature to regulate the court's power to punish for contempt.2 The Virginia courts construe this provision as permitting the legislature to regulate contempt only to the extent the regulation does not abridge the court's inherent contempt powers. The specific legal standard is whether the statute destroys or so far diminishes the court's contempt 40 VIRGINIA LAWYER | February 2012 | Vol. 60 | FAMILY LAW SECTION powers that they become ineffectual.3 Virginia courts have held contempt statutes unconstitu- tional when they have provided contemnors with a right to a jury trial for all summary contempt proceedings4 and for all indirect contempt pro- ceedings.5 On the other hand, the Virginia Supreme Court has upheld the constitutionality of a summary contempt statute when the right to a jury trial has been narrowly limited to contempt actions pertaining to misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice, and the sentence has exceeded the maximum statutory punishment of ten days in jail and/or a $50 fine.6 This statutory scheme is identical to the current statutory scheme.7 Except when applying Va. Code Ann. §18.2-456(1), circuit courts have the power to hold contemnors in summary contempt and sentence them to a maximum of twelve months in jail and/or a $2,500 fine since the remaining portion of Va. Code Ann. §18.2-456 is considered an unclassified misdemeanor.8 Pursuant to a separate statute, district courts are limited in summary contempt proceedings to sentencing a contemnor to a maximum of ten days in jail and/or a $250 fine.9 Virginia courts reject contemnors' interpretations of contempt statutes when they lead to abridging the court's inherent contempt powers, such as when a defen- dant asserted that Va. Code Ann. §18.2-456(5), involving willful failure to comply with a court's order, only applied to the court's written orders and not to its verbal orders.10 Common law contempt rules must be adhered to unless abrogated by the legislature.11 In 2010, the Virginia Supreme Court held that the Virginia Appellate Courts lacked jurisdiction to hear an appeal of a show cause dismissal. Under common law, contempt adjudications were non- appealable; Va. Code Ann. §19.2-318 only abro- gated common law to authorize appeals for contempt findings. The Virginia Supreme Court reasoned that the legislature, which was presumed www.vsb.org

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