Classic coercive contempt Court should release contemnor from coercive contempt when (1) compliance is no longer needed OR (2) the contempt no longer has a coercive effect. Anyanwu standard: Is there a substantial likelihood that continued commitment will accomplish the purpose of the court order? If yes – court can maintain confinement If no – court should release contemnor BURDEN on CONTEMNOR to prove coercion no longer operating.

How does a judge determine that the coercive order has lost it’s impact? Is it enough thatcontemnor avows “he will never give in”? Probably not – refusal to comply is alone insufficient So what more is needed? How do factors such as “age, state of health, & length of confinement” relate to contemnor’s credibility? “Each case must be decided on an independent evaluation of all of the particular facts. Age, state of health and length of confinement are all factors to be weighed, but the critical question is whether or not further confinement will serve any coercive purpose.” Catena v. Seidl (quoted in Anyanwu) These are very fact-bound & context-specific inquiries

How do judges determine contemnor’s stubbornness is irrevocable – cont’d How relevant is the form of testimony re contemnor’s stubbornness? Live testimony vs. affidavits Personal testimony vs. third-party testimony Psychiatric testimony? Did the form of Anyanwu’s evidence (along with his actions) help or hurt his claim regarding the coercive effect of the contempt? 2 letters from Vice-Consul US Embassy & Civil Rights Ctr. (both suggesting court case has made situation worse) Never testifies on own behalf Never did what court asked him to do (despite court making it easier for him to comply)

Impossibility as a defense to contempt Impossibility of compliance with a court order is a defense to contempt (both criminal and civil coercive). “No matter how reprehensible the conduct is it does not warrant issuance of an order which creates a duty impossible of performance so that punishment can follow.” Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 781 (9 th Cir. 1983) It is the contemnor’s burden to prove impossibility What if the contemnor is partly responsible for why she can’t comply? Courts are unlikely to allow impossibility defense. If contemnor was originally held in coercive contempt, court will probably hold a new criminal contempt hearing instead since no amount of coercion is likely to work.

Determining when it is impossible for the contemnor to comply with the court’s order Often it’s just a matter of credibility – does the contemnor’s story hold up to scrutiny? Passage of time can bolster contemnor’s story Contemnors’ claims of impossibility that courts did not believe: A, who was ordered to turn over thousands of dollars, claimed to have accidentally flushed it down the toilet B, who was ordered to turn over $18,000, claimed to have lost it out of his pocket while out bird hunting Court released him after 8 months in jail C, who was ordered to turn over cash, claimed to have lost $2.8 million through bad investments with friends and family

Contempt & the Collateral Bar Rule o A party who willfully violates an injunction issued by a court of competent jurisdiction and who is subsequently prosecuted for criminal contempt cannot defend against contempt charges based on the fact that the injunction erroneously issued (even if it turns out that the injunction was erroneous or even unconstitutional). o Compare position of a criminal D who can raise the invalidity of a law (especially it’s unconstitutionality) at a criminal prosecution. o What is the purpose of the collateral bar rule? o Efficiency (this rule is invoked re provisional injunctions) o Respect for the court’s authority o Missouri appears to follow the collateral bar rule – although there are few reported cases

Exceptions to Collateral Bar Rule o Lack of Jurisdiction o An order issued by a court without subject matter and/or personal jurisdiction is void and can be violated with impunity o But the collateral bar rule still applies: o If the court does not clearly lack jurisdiction, or o If court has expressly reserved jurisdiction to determine its jurisdiction (even if it turns out later that jurisdiction does not exist)

Jurisdiction Exception – Clearly Lacking Jurisdiction o Assume that a lawsuit is filed in state court regarding a violation of federal statutory law. The federal statute may preempt state court jurisdiction but the statutory text is unclear and the federal courts are split regarding preemption. o If the state court enjoins X from acting and X later violates the injunction, can X avoid contempt sanctions if it later turns out that the state court was pre-empted from exercising jurisdiction? o NO – the state court did not CLEARLY lack jurisdiction at the time it issued the injunction so X was still bound to obey the injunction.

Jurisdiction Exception – Jurisdiction to Determine Jurisdiction o Hypo: o Union strikes in violation of NLRA. o US sues in federal court to enjoin strike. Federal statute precludes federal court injunctions against strikes with few exceptions none of which applied. o Union raises the jurisdiction issue. United States (which was acting as employer at the time) argues that that federal law shouldn’t preclude federal gov’t as employer from suing in federal court. o Court continues injunction until it can decide the jurisdictional issue. o If the union violates the injunction before the court decides the jurisdictional issue, can it raise lack of jurisdiction as a defense to criminal contempt if the court later determines there was no jurisdiction? o NO – courts have jurisdiction to determine jurisdiction and parties subject to injunctions cannot violate them during the pendency of a determination regarding court’s powers.

Exceptions - Constitutional/First Amendment Defense (?) o Some state courts recognize exceptions to the collateral bar rule when the challenge to the injunction’s invalidity is that it violates the 1A: o “It is a flagrant denial of constitutional guarantees to balance away [free speech] principles in the name of “respect for judicial process.” To preach “respect” in this context is to deny the right to speak at all. o Ex parte Tucci, 859 S.W. 2d 1, 2 (Tex. 1993) o California, Texas, Arizona & Wash are prominent states with this exception

More Exceptions to Collateral Bar Rule o Transparently Invalid Injunctions o A transparently invalid injunction is not subject to the collateral bar rule. o Classic e.g.: The law on which injunction based was already declared invalid or injunction was based on law almost identical to law that was declared invalid. o Why doesn’t Walker involves this exception? o Increasingly courts say an injunction is transparently invalid if it violates “clearly settled law” even if it is not nearly identical to already invalid law o Delay & Frustration o If before disobeying an injunction a contemnor tries to challenge it in court but meets with delay or frustration, she is not subject to the collateral bar rule. Two questions: o Does contemnor have the ability to challenge the injunction? o If NOT, then the collateral bar rule doesn’t apply o Have they met with delay/frustration?