Reconsidering Wilfulness as an Element of Civil Contempt

It is black letter law in Connecticut that civil contempt requires proof of wilfulness. But that wasn’t always the case in our state. And it has never been the case under federal law. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 93 L.Ed. 599 (1949) (“[t]he absence of wilfulness does not relieve from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance. . . . Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act.”)

How did wilfulness come to be a required element of civil contempt in Connecticut? Should it be an element? What effect have fairly recent Connecticut Supreme Court decisions–particularly O’Brien v. O’Brien (2017)–had on the law of civil contempt, including the Superior Court’s power to award remedial damages for non-wilful violations of court orders?

These and related questions are addressed in a recent article I wrote on the topic. Here are a few paragraphs from the Conclusion:

Contrary to longstanding federal law, Connecticut law has evolved to require proof of wilfulness as an essential element of civil contempt. But the Connecticut Supreme Court’s decision in O’Brien is an important reminder that the Superior Court has the inherent power to award compensatory damages for non-wilful violations of court orders. Yet by relying on DeMartino [v. Monroe Little League, Inc.] which followed federal law on civil contempt, the O’Brien decision creates a tension in Connecticut law concerning the relevance of wilfulness. The Supreme Court’s reliance in O’Brien on DeMartino is also significant because DeMartino supports the argument that the Superior Court’s inherent power to award compensation for non-wilful violations of court orders includes the authority to award attorney’s fees.

Even if O’Brien and other “wilfulness” cases . . . overruled DeMartino sub silentio on the issue of wilfulness to civil contempt, the normative question remains: should wilfulness be an element of civil contempt under Connecticut law? It wasn’t for most of our state’s legal history, and it appears to have become an element by accident. Federal law doesn’t require wilfulness. What purpose does this requirement truly serve in the civil contempt context, where the objective of the law is to compensate, not punish? If a party has notice of a clear and unambiguous court order, if the party has the ability to comply with the order, and if the party lacks a legally valid justification or defense for failing to comply, why should the law demand inquiry into the party’s state of mind?

If you are interested in an analysis of these questions, click here to download a PDF of the article.