§ Rule 75 Contempt

Rule 75. Contempt

This rule shall govern all contempt proceedings brought in connection with a civil lawsuit or as a separate proceeding. It shall not apply to the prosecution of misdemeanor contempt under section 18-1801, Idaho Code, or any other criminal statute.

(a) Definitions. The following definitions apply to this rule.

(1) Petitioner. A petitioner is the person or legal entity initiating a nonsummary contempt proceeding.

(2) Respondent. A respondent is the person or legal entity alleged to have committed an act of contempt.

(3) Contemnor. A contemnor is a person or legal entity adjudged to have committed an act of contempt.

(4) Summary Proceeding. A summary proceeding is one in which the contemnor is not given prior notice of the charge of contempt and an opportunity for a hearing to determine whether the charge is true.

(5) Nonsummary Proceeding. A nonsummary proceeding is one in which the contemnor is given prior notice of the contempt charge and an opportunity for a hearing.

(6) Civil Sanction. A civil sanction is one that is conditional. The contemnor can avoid the sanction entirely or have it cease by doing what the contemnor had previously been ordered by the court to do. A civil sanction can only be imposed if the contempt consists of failing to do what the contemnor had previously been ordered by the court to do.

(7) Criminal Sanction. A criminal sanction is one that is unconditional. The contemnor cannot avoid the sanction entirely or have it cease by doing what the contemnor had been previously ordered by the court to do. A suspended sanction with probationary conditions is a criminal sanction, as is a sanction that includes provisions that are both conditional (civil) and unconditional (criminal). A criminal sanction may be imposed for any contempt.

(b) Summary Proceedings.

(1) A summary proceeding may be used only if the contempt was committed in the presence of the court. A contempt is committed in the presence of the court if:

a. The conduct occurs in open court in the immediate presence of the judge;

b. The judge has personal knowledge, based upon personally observing and/or hearing the conduct, of the facts establishing all elements of the contempt; and

c. The conduct disturbs the court's business.

(2) The court may summarily impose a sanction for contempt that is committed in its presence. Before doing so, the court must:

a. Give the contemnor notice of the alleged contempt, which can be oral; and

b. Give the contemnor a brief opportunity to be heard in order to present matters in mitigation or to otherwise attempt to make amends with the court.

(3) Promptly after announcing the sanction, the court must enter in the record a written order, signed by the judge, which:

a. States that the judge saw and/or heard all of the conduct constituting the contempt and that it was committed in the actual presence of the court;

b. Recites each of the specific facts upon which the contempt conviction rests;

c. Adjudges that the contemnor is guilty of contempt; and

d. Sets forth the sanction for that contempt.

Before imposing incarceration as a sanction for summary contempt, the court should consider whether a lesser sanction would be effective. If the sanction includes incarceration, the court may immediately remand the contemnor into custody to begin serving such incarceration and later file the written order. If the sanction includes a civil sanction, the written order must recite precisely what the contemnor must do in order to avoid the sanction or have it cease.

(1) Contempt Initiated by a Judge--Written Charge of Contempt. A judge may initiate contempt proceedings by issuing a written charge of contempt and having it served upon the respondent. The charge may be prepared by the court or by a party at the court's direction. The written charge must be supported by an affidavit unless the facts recited in it are based upon the judge's personal knowledge and/or upon information from the court file contained in documents prepared by court personnel.

(2) Contempt Not Initiated by a Judge-Motion and Affidavit. All contempt proceedings, except those initiated by a judge as provided above, must be commenced by a motion and affidavit. Contempt proceedings shall not be initiated by an order to show cause.

(3) Factual Allegations. The written charge of contempt or affidavit must allege the specific facts constituting the alleged contempt. Each instance of alleged contempt, if there is more than one, must be set forth separately. If the alleged contempt is the violation of a court order, the written charge or affidavit must allege that either the respondent or the respondent's attorney was served with a copy of the order or had actual knowledge of it. The written charge or affidavit need not allege facts showing that the respondent's failure to comply with the court order was willful.

(4) Notice to Appear. The respondent shall be served with written notice of the time, date, and place to appear to answer to the charge of contempt.

(d) Nonsummary Proceedings--Service-Time Limits.

(1) If the contempt proceedings are initiated in connection with a pending action to which the respondent is a party, the written charge of contempt or motion and affidavit and written notice of the time, date, and place to appear may be served upon the respondent as provided in Rule 5(b), unless the court orders personal service.

(2) If the respondent is not a party to the pending action in which the contempt proceedings are brought, service shall be as provided in Rule 4, but the respondent need not be served with a summons.

(3) Notice of the time, date, and place to appear, together with the documents commencing the contempt proceedings, shall be served no later than seven (7) days before the date set for the initial appearance, unless otherwise ordered by the court.

(e) Nonsummary Proceedings--Warrant of Attachment and Bail.

(1) Warrant of Attachment. The court shall not issue a warrant of attachment unless the court finds that there is probable cause to believe that the respondent committed the contempt and determines that there are reasonable grounds to believe that the respondent will disregard a written notice to appear. The form of the warrant may be the same as a warrant of arrest issued in a criminal case.

(2) Bail. When issuing a warrant of attachment, the court shall set a reasonable bail, to be endorsed upon the warrant at the time it is issued.

(3) Execution and Return. The execution and return of the warrant shall be in the same manner as a warrant of arrest issued in a criminal ase.

(f) Nonsummary Proceedings--Initial Appearance of Respondent.

(1) Advice to Respondent. At the respondent's first appearance in court to answer to the charge of contempt in nonsummary proceedings, the court shall inform the respondent of:

a. The charge(s) of contempt against the respondent;

b. The possible sanctions for contempt;

c. That the respondent is not required to make a statement and that any statement made may be used against the respondent;

d. The respondent's right to a trial;

e. The respondent's right to confront the witnesses against the respondent, including watching the witnesses testify in court and questioning them; and

f. The respondent's right to bail, if the respondent has been arrested under a warrant of attachment.

(2) Additional Advice in Order to Impose Incarceration as a Sanction. If the respondent appears without counsel and the court desires to have the option of imposing incarceration as a sanction, the court must inform the respondent that the respondent has the right to be represented by an attorney and that if the respondent desires an attorney and cannot afford one, an attorney will be appointed at public expense.

(3) Appearance by Respondent Through Counsel. A respondent may also appear and respond to the charge through an attorney, who shall either appear in person or shall file, at or before the initial appearance, a written appearance and response to the charge on behalf of the respondent. The court may, in its discretion, require the presence of the respondent at any stage of the proceeding.

(g) Nonsummary Proceedings--Plea. After being informed of the applicable rights, the respondent shall admit or deny the charge of contempt.

(1) Admission of Contempt. Before an admission of the charge can be accepted, the record of the entire proceedings, including reasonable inferences drawn therefrom, must show:

a. The respondent was informed of the nature of the charge(s) of contempt;

b. The respondent was informed of the maximum sanctions, including the possibility, if applicable, that sanctions for multiple contempts could be consecutive;

c. The voluntariness of the admission; and

d. The respondent was advised that by admitting the contempt, the respondent would be waiving the applicable rights specified in subsection (f) above.

(2) Denial of Contempt. If the respondent denies the charge of contempt, the matter shall be set for a trial. The respondent must be given at least fourteen (14) days to prepare for trial, unless otherwise ordered by the court.

(h) Nonsummary Proceedings--Defenses to the Contempt. Defenses to the charge of contempt must be raised as follows:

(1) Written Response. In order to assert an affirmative defense to the contempt, the respondent must file and serve a written response stating such defense, including any of the following: the respondent was unable to comply with the court order at the time of the alleged violation (only a defense to a criminal sanction), the respondent lacks the present ability to comply with the court order (only a defense to a civil sanction), the respondent was unaware of the order allegedly violated, the court lacks personal jurisdiction over the respondent, or the court lacked jurisdiction to issue the order allegedly violated. The written response must be filed within seven (7) days after entering a plea denying the contempt charged, unless otherwise ordered by the court.

(2) Burden of Proof Regarding Affirmative Defenses. In order to prevent a civil sanction from being imposed, the respondent must prove the affirmative defense by a preponderance of the evidence. In order to prevent a criminal sanction from being imposed, the respondent need only create a reasonable doubt as to whether the respondent is guilty of the contempt.

(i) Nonsummary Proceedings--Trial.

(1) Court Trial or Jury Trial. The trial shall be before the court without a jury, provided, that if the respondent is charged with multiple counts tried in one proceeding, the court cannot impose consecutive criminal sanctions totaling more than six months in jail unless the respondent was given, or voluntarily waived, the right to a jury trial.

(2) Trial Rights Required to Impose a Criminal Sanction. The court cannot impose a criminal sanction following a trial unless the respondent was provided the following rights: a public trial, compulsory process, the presumption of innocence, the privilege against self-incrimination, the right to call and cross-examine witnesses, the right to testify in one's own behalf, the right to exclude evidence that was obtained in violation of the respondent's Fourth Amendment rights, the right to counsel, if applicable, and the right to a unanimous verdict if there was a jury trial.

(j) Nonsummary Proceedings--Burden of Proof.

(1) Civil Sanction. In order to impose a civil sanction, the court must find, by a preponderance of the evidence, that all of the elements of contempt have been proven and that the contemnor has the present ability to comply with the order violated, or with that portion of it required by the sanction.

(2) Criminal Sanction. In order to impose a criminal sanction, the trier of fact must find that all of the elements of contempt were proven beyond a reasonable doubt.

(k) Nonsummary Proceedings--Findings of Fact. If the contempt allegation is tried to the court without a jury, the court shall make specific findings of fact. In order to impose either a civil sanction or a conditional (civil) provision as part of a criminal sanction, the findings must include the facts upon which the court bases its determination that the contemnor has the present ability to comply with the order violated, or with that portion of it required by the sanction.

(l) Nonsummary Proceedings--Imposition of Sanctions. If the respondent admits the contempt or is found in contempt following a trial, the court may impose sanctions as permitted by law.

(1) Right to Counsel. The court cannot impose incarceration as a sanction unless the contemnor was represented by counsel or had knowingly and voluntarily waived the right to counsel.

(2) Right to Call Witnesses and Speak Regarding the Sanction. The court cannot impose a criminal sanction without first giving the contemnor the right to call witnesses in mitigation of the sanction and the right to be heard in order to present matters in mitigation or to otherwise attempt to make amends with the court.

(3) Written Order. The court shall issue a written order reciting the conduct upon which the contempt conviction rests; adjudging that the contemnor is guilty of contempt; and setting forth the sanction for that contempt. If the sanction is civil or includes a conditional provision, the order must specify precisely what the contemnor must do in order to avoid that sanction or have it cease.

(m) Nonsummary Proceedings--Attorney Fees. In any contempt proceeding, the court may award the prevailing party costs and reasonable attorney fees under Idaho Code § 7-610, regardless of whether the court imposes a civil sanction, a criminal sanction, or no sanction. The procedure for awarding such costs and fees shall be as provided in Rule 54(e) of the Idaho Rules of Civil Procedure, except that the determination of the prevailing party shall be based upon who prevailed in the contempt proceeding rather than in the civil action as a whole.

(n) Other Rules of Civil Procedure. Rules regarding discovery and other rules of civil procedure, to the extent that they are not in conflict with this rule, shall apply to nonsummary contempt proceedings. The Idaho Criminal Rules shall not apply.

The rule headings for Idaho Rules of Civil Procedure have been editorially supplied.