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.

Inherent Powers of Connecticut Courts

It’s been a while since I last posted on my blog, but the COVID-19 nightmare has afforded me the opportunity to do some research and writing on a topic that’s been on my mind for a while: the inherent powers of the Connecticut trial and appellate courts. I just finished an article on that subject. Here’s the introduction (footnotes omitted):

When a people adopt a constitution that vests the “judicial power” in a particular branch of government, the courts thereby created possess certain powers which inhere in their very nature as courts. That is, these powers exist independent of any powers that a legislative branch grants expressly or impliedly. As the United States Supreme Court has explained, “[i]t has long been understood that [c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution, powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.”

The doctrine of inherent powers is not limited to our federal courts. The inherent powers of the Connecticut courts have been described simply as “those which are necessary to the exercise of all others.”

The purpose of this article is to provide the bench and bar with a catalogue, if you will, of the inherent powers of the Superior, Supreme and Appellate courts of the State of Connecticut. It is not intended as a scholarly work. However, such works are readily available in law review articles and other secondary sources to anyone inclined to study this issue in greater detail.

The organization of this article is straightforward. The inherent powers of the Superior Court are presented in Part I; the powers unique to the Supreme and Appellate courts are presented in Part II. Within each part the inherent powers are organized into categories (and occasionally subcategories), which are arranged alphabetically.

Two important preliminary notes. First, that a particular judicial power is inherent does not necessarily mean that it is exclusively within the control of the courts. “A statute violates the constitutional mandate for a separate judicial magistracy only if it represents an effort by the legislature to exercise a power which lies exclusively under the control of the courts . . . or if it establishes a significant interference with the orderly conduct of the Superior Court’s judicial functions.” Under Connecticut’s somewhat relaxed separation of powers jurisprudence, the powers of the three branches of government occasionally overlap.

Second, many inherent powers have been codified and are embodied in the Practice Book. Yet it is important to remember that the Practice Book is not the source of inherent powers. As the Connecticut Supreme Court has observed, “[t]he trial court’s power to set aside a verdict is inherent; the Practice Book merely lays out an advisable manner of exercising it.” Although this particular statement concerned the inherent power to set aside a verdict, the Court’s observation applies to inherent powers generally.

Click here to download a PDF of the article. It’s an easy read.  Meanwhile, stay safe and healthy.

Free Speech Rules

One of our nation’s most distinguished First Amendment scholars, Professor Eugene Volokh of UCLA School of Law, has created an excellent video series–Free Speech Rules–about the First Amendment and free speech.  He has produced three videos so far, all intended for a general audience, not law professors or attorneys.  The videos are great for anyone in interested in contemporary free speech issues, but I think they are “must watch” for high school and college students.  Click on the links below to watch them.  I’ll post future videos as they are released.

First Mondays at The Connecticut Mirror

Dear Readers,

I’m pleased to announce–three months after the fact–that I’m writing a monthly column for The Connecticut Mirror.  The column, “First Mondays,” is purely educational and is intended to enhance the general public’s understanding of the law and the legal system.  As you’ve no doubt guessed already, the column will appear on the first Monday of each month.  Topics so far have included:

I’ll post links to future columns as they appear.

My Grandfather’s Robes

My grandfather, the late Joseph Klau, was a Superior Court judge for many years before his death in 1988.  He loved being a judge.  For my entire professional life as an attorney I have aspired to follow in his footsteps.  Yesterday, that professional dream became a reality when the General Assembly voted to confirm Governor Malloy’s nomination of me to become a Superior Court judge.  (Thank you Governor Malloy!)  To top things off, I was sworn in while wearing my grandfather’s robes.  As you can imagine, I am beyond thrilled.

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William Howard Taft On Judicial Independence

I’ve been a great fan of President Theodore Roosevelt since I was a child.  I may have to revisit my admiration for Teddy, however, after reading law prof Jeff Rosen’s fascinating post about Teddy’s “demagogic attacks” on judicial independence–and how his successor, William Howard Taft, responded to them.  Rosen writes:

Judicial independence was the cause to which Taft was most devoted, as President and Chief Justice. Taft fought the election of 1912 as a crusade against Theodore Roosevelt’s demagogic attacks on judicial independence. In February, 1912, Roosevelt alarmed Taft by attacking individual judges by name and endorsing the right of the people to overturn state court decisions as well as recalling state court judges.

Taft responded that “the charter of democracy” Roosevelt proposed “advocated a change in our judicial system” that “would be dangerous to the body politic.” The recall of judges and their decisions, he said, “would necessarily destroy the keystone of our liberties by taking away judicial independence, and by exposing to the chance of one popular vote, questions of the continuance of our constitutional guarantees of life, liberty and property and the pursuit of happiness.” After delivering this fervent address, Taft retreated to his private railway car and expressed anguish to a journalist, “Roosevelt was my closest friend,” he declared, with his head in his hands. And then he began to weep.

Judicial independence is under attack once again.  How President, later Chief Justice, Taft responded to Roosevelt’s attacks on judicial independence is a lesson for how we should respond to similar attacks today.

Use Of Appellate Counsel In The “Bet The Firm” Case

From the shameless marketing department:

Please join former Supreme Court Justices Peter Zarella, Ian McLachlan and several noted appellate attorneys for an illuminating panel discussion on the value of including appellate counsel in your trial team.

When: April 26, 2018

Time: 11:00 am to 2:00 pm

Where: One State Street, Hartford, CT

“Go Buy Your Wedding Cake Somewhere Else.”

The country awaits the U.S. Supreme Court’s decision in the Masterpiece Cakeshop case, which concerns whether a professional cake maker can refuse, on First Amendment grounds, to sell a wedding cake to a gay couple. Georgetown law professor Paul Smith has this moving post on the very real personal costs that members of the LGBTQ community will suffer if the court decides the case in favor of Masterpiece Cakeshop.  Money quote:

People in this country have every right to personally disapprove of my marriage.  But they should not have a right to translate those beliefs into exclusionary policies when they open a business like the Masterpiece Cakeshop.  They can choose who to associate with in their private lives.  But not when they open a business serving the public.  That is where we have always drawn the line in this country, and that shouldn’t change just because a purveyor of really excellent wedding cakes asks for the right to refuse to serve us because of who we are.

My Narcan Journey (Or How I Spent My Saturday Morning)

As the parent of a child with a serious substance abuse problem, I probably should have purchased Narcan a long time ago. Narcan, or Naloxone, is an antidote to opioid overdose. If administered soon after a person has overdosed on heroin or prescription painkillers (e.g., Vicodin, Percocet, Oxycontin), Narcan can save the person’s life.

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Porn Stars, Nondisclosure Agreements And The First Amendment

Yale Law School professor Jack Balkin has this interesting post on the enforceability of the nondisclosure agreement that adult film actress Stormy Daniels signed in exchange for $130,000, paid on behalf of President Trump.  Balkin notes that such agreements are generally enforceable because people can voluntarily waive their First Amendment rights.  But he argues that such agreements may, under certain circumstances, violate public policy.  Money quote:

Daniels’ strongest argument is a public policy argument within contract law– courts should refuse to enforce some (but not all) nondisclosure agreements because they are against public policy.  The public policy in this case is the public’s right to know about the private life of the President of the United States before he became President. In the alternative, there might be a public policy justifying a much narrower right of disclosure–namely, the right of the public to know whether the President and his allies violated campaign finance rules in order to keep Daniels quiet. There are plausible arguments for both of these positions, but they sound more in contract law than in First Amendment doctrine.