CIVIL AND CRIMINAL CONTEMPT

 

 

            If you are in a battle against the IRS, you need to know something about the issue of civil and criminal contempt. You can be held in contempt by a judge if you refuse to give testimony or records in response to a summons.  However, if you raise a defense that is viable, the court probably will not hold you in contempt.  If you get a summons for personal records; you have the right to stand on your Fifth Amendment Rights.  However, not all the judges in this country understand the law and some may not permit you to take the Fifth. 

 

            Contempt powers started with English Common Law where disobedience of writ under the King's seal was treated as contempt. Under the 1789 Act, the federal courts were given those powers that the English Courts had under common law. (Green v. U.S. NY 1958, 78 S. Ct 632).

 

            By 1831 Congress began to define the contempt powers of federal courts:

 

                 Under the Judiciary Act of 1789, the federal courts were vested with power to punish by fine or imprisonment, at the discretion of said court, all contempts of authority.  Congress did not define what acts constituted contempts, but left this, as well as the amount of punishment, to the judicial discretion of the courts.  Prior to 1831, the judges in several cases had punished criticisms of themselves or their decisions published in the press, as contempts of their authority, and to such an extent had this action been considered a usurpation by the public that impeachments had been instituted on account of such acts against several of the judges.  The impeachments failed, but resulted in the passage of the act of March 2, 1831, by Congress, which limited the acts for which the courts might thereafter punish for contempts of their authority to defined classes, U.S. v. Huff, D.C. Ga. 1913, 206 F 700.

 

            The power of a federal court to imprison a recalcitrant witness for contempt in an effort to make the witness testify is an inherent power which was possessed from the beginning by the federal courts in exercise of their equity jurisdiction, which parallels that exercised by the English Court of Chancery at the time the Constitution was formed. U.S. v.  Yates, D.C.Cal. 1952, 107 F.Supp. 412.

 

            The courts have defined contempt as an "intentional act" which is committed in defiance of authority and dignity of court. U.S. v. Panico, C.A.N.Y. 1962 308 F.2d 125; or contempt "is shown by forgetfulness, neglect, or failure of or indifference to duty. U.S. v. Ford, D.C. Mont. 1925, 9 F.2d 990.

 

            Contempt is classified as either "direct" or "indirect."  If contempt is committed in the presence of the court, it is direct O'Malley v. U.S., C.C.A.Mo. 1942, 138 F.2d 676.

 

            Contempt can be civil or criminal or both.  Civil contempt is a sanction to enforce compliance with an order of the court to compensate for losses or damages sustained by reason of noncompliance and may be imposed for prohibited acts irrespective of intent. McComb v. Jacksonville Paper Co., Fla. 1949, 69 S.Ct. 497, 336 U.S. 187. Contempt is civil when it is remedial and serves only the purposes of the complainant. Nye v. U.S., 61 S.Ct. 810.  The purpose of the punishment, rather than the character of the act punished, determines whether contempt is civil or criminal. Lamb v.Cramer, 62 S. Ct. 315. Criminal and civil proceedings for contempt are not mutually exclusive and the court can institute separate and independent proceedings for criminal contempt on a new citation. Parker v. U.S., 153 F.2d 66.

 

            Punishment in a civil contempt situation is given where the court wants to make a witness do something which he has been directed to do and has refused to do, whereas in criminal contempt, punishment is imposed for doing that which has been forbidden or for the violation of an order of the court, and it cannot undo or remedy the thing which has been done,  Leitstein v. Capital Co., 96 F.2d 23.

 

            Remember that the Court can hold you in contempt, either civilly or criminally before you attempt to stand up against the Court and claim that it does not "have jurisdiction over you."  If you take that position, you will likely waive your Constitutional Rights and you may be arrested and incarcerated until such time as you agree to testify. Be careful about following the advice of some of the outspoken individuals in the Freedom Movement who don't understand these principles.  Good luck and please be aware of the awesome contempt power of the Courts.