Williams Intern. Corp. v. Smith, SCHOONOVER-HIGGIN

• Decision Date: 30 October 1985
• Docket Number: 79153,A,Docket Nos. 77964,SCHOONOVER-HIGGIN
• Citation: 144 Mich.App. 257,375 N.W.2d 408
• Parties: In re Contempt of Peter Dougherty, James Smith, Carfon Foltz, Daniel La Grou and Sol Metz. WILLIAMS INTERNATIONAL CORPORATION, a Michigan corporation, Plaintiff-Appellee, v. James SMITH, Carfon Foltz, Daniel La Grou and Sol Metz, Appellants, and Peter Dougherty, Defendant-Appellant, and Matt Goodheart, Margaret Dewey, Ken Berger, Elizabeth Walters, Janet Kurtz, Pat Robertson, Robert Glassman, Covenant for Peace, Michigan Alliance for Peace, John Doe and Mary Roe, Defendants. In re Contempt of Jeffrey Schoonover-Higgins, Margaret Dewey, Anthony Raffenaud and Ken Grunow. WILLIAMS INTERNATIONAL CORPORATION, a Michigan corporation, Plaintiff-Appellee, v. Jeffreynthony Raffenaud and Ken Grunow, Appellants, and Margaret Dewey, Defendant-Appellant, and Jim Smith, Matt Goodheart, Peter Dougherty, Ken Berger, Elizabeth Walters, Janet Kurtz, Pat Robertson, Robert Glassman, Covenant for Peace, Michigan Alliance for Peace, John Doe and Mary Roe, Defendants. 144 Mich.App. 257, 375 N.W.2d 408
• Court: Court of Appeal of Michigan — District of US

Page 408

375 N.W.2d 408

In re Contempt of Peter Dougherty, James Smith, Carfon

Foltz, Daniel La Grou and Sol Metz.

WILLIAMS INTERNATIONAL CORPORATION, a Michigan corporation, Plaintiff-Appellee, v. James SMITH, Carfon Foltz, Daniel La Grou and Sol Metz,

Appellants,

and

Peter Dougherty, Defendant-Appellant,

and

Matt Goodheart, Margaret Dewey, Ken Berger, Elizabeth

Walters, Janet Kurtz, Pat Robertson, Robert

Glassman, Covenant for Peace, Michigan

Alliance for Peace, John Doe

and Mary Roe,

Defendants.

In re Contempt of Jeffrey Schoonover-Higgins, Margaret

Dewey, Anthony Raffenaud and Ken Grunow.

WILLIAMS INTERNATIONAL CORPORATION, a Michigan corporation, Plaintiff-Appellee, v. Jeffrey SCHOONOVER-HIGGINS, Anthony Raffenaud and Ken

Grunow, Appellants,

and

Margaret Dewey, Defendant-Appellant,

and

Jim Smith, Matt Goodheart, Peter Dougherty, Ken Berger,

Elizabeth Walters, Janet Kurtz, Pat Robertson, Robert

Glassman, Covenant for Peace, Michigan Alliance for Peace,

John Doe and Mary Roe, Defendants.

Docket Nos. 77964, 79153.

144 Mich.App. 257, 375 N.W.2d 408

Court of Appeals of Michigan.

Submitted Nov. 16, 1984.

Decided July 15, 1985.

Released for Publication Oct. 30, 1985.

[144 MICHAPP 258] Keywell & Rosenfeld by Dawn L. Phillips and Blair B. Hysni, Troy, for plaintiff-appellee.

Kelman, Loria, Downing, Schneider & Simpson by Michael L. Pitt and William H. Goodman, Detroit, for defendants-appellants.

Before HOOD, P.J., and BRONSON and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

Appellants in these consolidated cases appeal as of right from two contempt orders entered by Oakland County Circuit Judge [144 MICHAPP 259] James S. Thorburn. Appellants ¹ were found in contempt for violating a June 29, 1983, permanent injunction enjoining them from trespassing on or obstructing ingress and egress to the Williams International Corporation plant at Walled Lake, Michigan, and for their refusal to promise the Court they would refrain from such conduct in the future. We affirm.

Williams operates a manufacturing complex in Walled Lake, Michigan, with a physical plant consisting of 63 acres surrounded by an 8-foot-high fence. Part of the Walled Lake operations involves the manufacture of a gas turbine engine which the United States government uses in the cruise missile. The Walled Lake plant has been the object of demonstrations by appellants and others who protest Williams's participation in the production of nuclear weapons. In May, 1983, certain individuals entered the premises by cutting the perimeter fence and spread ashes on the grounds and defaced the walls of buildings. Williams filed a complaint in the circuit court which resulted in a default judgment and a permanent injunction enjoining several individuals, including defendants-appellants Margaret Dewey and Peter Dougherty, and all persons acting in concert with them, from trespassing on and obstructing ingress and egress to Williams's premises at Walled Lake.

Several persons disobeyed the injunction and numerous contempt orders were issued following incidents at the plant in August and November, [144 MICHAPP 260] 1983. Those orders have resulted in two previous appeals, Docket Nos. 73394 and 73401.

The present appeals involve contempt orders entered on April 20, 1984 (Docket No. 77964), and June 11, 1984 (Docket No. 79153). The trial court found in both cases that appellants had knowledge of the June 29, 1983, injunction and violated its terms by either trespassing or blocking ingress and egress to the Walled Lake plant. In Docket No. 77964, the appellants ² were found in contempt for "refusing to agree to refrain from violating" the permanent injunction. The order of contempt stated that appellants:

"shall remain committed to the Oakland County Jail, there to remain until they have purged themselves of contempt by agreeing to be bound by the Judgment of Permanent Injunction of this Court entered on June 29, 1983. In the event any one of the aforesaid individuals shall agree to abide by the Judgment of this Court, that person shall be deemed to have purged himself of contempt and that person shall be released. Each of the aforesaid individuals holds the keys to his jail cell."

Appellants filed a claim of appeal on April 30, 1984. On May 10, 1984, this Court entered an order staying the April contempt order, and appellants were released that day.

In Docket No. 79153, appellants ³ were found in contempt and committed to the Oakland County Jail. It was further ordered:

[144 MICHAPP 261] "each Respondent shall hold the keys to his jail cell, in that he or she shall remain committed to the Oakland County Jail until he or she shall purge himself or herself of contempt by demonstrating that he or she will discharge his or her statutory and judicially imposed duty to cease permanently from engaging in the conduct proscribed by this Court's judgment entered on June 29, 1983 or in the alternative by posting a $2.00 personal recognizance bond with the Court. In the event any one of the aforesaid individuals shall so demonstrate that he or she will discharge that duty or shall post the aforesaid bond, that person shall be deemed to have purged himself or herself of contempt and that person shall be released forthwith."

The appeals were consolidated for hearing and decision by this Court.

I

Appellants first contend that, despite the trial judge's labeling of these proceedings as civil, they were, in fact, criminal in nature and therefore the court's failure to afford appellants criminal procedural protections resulted in a denial of due process requiring reversal. Appellee contends that the orders were for civil contempt, but concedes that, if they were criminal contempt orders, appellants are entitled to reversal because they were not afforded the rights required in criminal proceedings. We find that the orders were for civil contempt.

Contempt of court is a wilful act, omission or statement tending to impair the authority or impede the functioning of a court. In re Gilliland, 284 Mich. 604, 280 N.W. 63 (1938), cert. den. 306 U.S. 643, 59 S.Ct. 583, 83 L.Ed. 1042 (1939), reh den 306 U.S. 669, 59 S.Ct. 641, 83 L.Ed. 1063 (1939).

The knowing and intentional violation of the permanent injunction issued in this case constitutes[144 MICHAPP 262] contempt and no one claims otherwise. ⁴ All contempt is either direct or indirect and either criminal or civil. Contempt is direct if committed in the immediate view and presence of a sitting court, i.e., in cases where all facts necessary to a finding of contempt are within the personal knowledge of the judge. In re Scott, 342 Mich. 614, 618, 71 N.W.2d 71 (1955). Direct contempt may be punished summarily, M.C.L. Sec. 600.1711(1); M.S.A. Sec. 27A.1711(1), and the proceedings are not governed by the Michigan Rules of Evidence, MRE 1101(b)(4). Contempt is indirect when committed beyond the immediate view and presence of the court and cannot be punished summarily but only in accordance with the statute, M.C.L. Sec. 600.1711(2); M.S.A. Sec. 27A.1711(2), court rule, MCR 3.606 (formerly GCR 1963, 760) and due process, Cross Co. v. UAW Local No. 155, 377 Mich. 202, 139 N.W.2d 694 (1966).

In the present case, the violation of the permanent injunction occurred beyond the immediate view and presence of the court and therefore constituted indirect contempt. There is, however, no assertion that the trial court failed in any respect to comply with the applicable procedural requirements.

Appellants do, as noted above, claim that the proceedings were in fact criminal rather than civil. The distinction between civil and criminal contempt relates not to the nature of the misconduct giving rise to the proceedings, but rather to the court's purpose in responding to that misconduct. If the court's purpose is to preserve its authority by punishing past misconduct through the imposition of an unconditional and fixed sentence,[144 MICHAPP 263] the proceedings are criminal. If, instead of punishing past misconduct, the court seeks to compel future compliance through the imposition of a sanction of indefinite duration terminable upon compliance or inability to comply, the proceedings are civil.

"Essentially, the difference between civil and criminal contempt is that the former seeks to change respondent's conduct by threatening him with a penalty if he does not change it, while the latter seeks to punish him for past misdoings which affront the dignity of the court. Criminal contempt being for past misconduct, there is no way for one so convicted to purge himself of the contempt." Jaikins v. Jaikins, 12 Mich.App. 115, 120; 162 N.W.2d 325 (1968).

"If [a contempt citation] is to punish the offender for his disobedience or contumacious behavior, then it is criminal contempt. If, however, the purpose is to compel obedience to an order of the court, then it is civil contempt." Spalter v. Wayne Circuit Judge, 35 Mich.App. 156, 160-161, 192 N.W.2d 347 (1971).

In this matter, the contempt proceedings were in both name and fact civil. The trial court's unambiguously expressed purpose was to secure appellants' future compliance with the permanent injunction, not to punish them for their past violation of that injunction. ⁵ The sanction imposed was a jail sentence of indefinite duration terminable [144 MICHAPP 265] upon appellant's unilateral expression of a willingness to comply with the permanent injunction in the future. In short, the appellants carried with them the proverbial keys to the jail and at all times had the power to secure their liberty.

Appellants rely upon People v. McCartney, 132 Mich.App. 547, 348 N.W.2d 692 (1984), for the proposition that the "label" affixed to contempt proceedings by a trial court is not determinative and that civil proceedings in name may in fact be criminal. That statement is undoubtedly true, but has nothing to do with this case. In McCartney, the trial court purported to provide the appellant an opportunity to purge...