Oklahoma Bar Journal

Indirect Contempt - A Primer

By Mark B. Houts

Hatred is an affair of the heart; contempt that of the head.
Arthur Schoepenhauer

Most litigators know the feeling. A client pays a respectable sum of money for your advice, and you give it. You tell the client what to do or not to do, but they don’t always listen. The client’s failure to heed the lawyer’s advice is particularly problematic when the advice involves a court order. In that instance, the client may face sanctions or, in serious cases, an indirect contempt citation. This article will set forth the basic law relating to indirect civil contempt.

Indirect civil contempt procedure may be invoked for two purposes, “remedial to coerce the defendant’s behavior, or … penal to punish the defendant for disobedient or disorderly behavior.”1Although this article will focus primarily on the penal/punitive purpose for indirect contempt procedure, this article will also give limited discussion regarding remedial contempt and the distinctions between these two purposes.

The Oklahoma Supreme Court has established the elements of indirect contempt. “To support a judgment of indirect contempt, 21 Okla. Stat. §565 requires proof of willful disobedience of or resistance to process or lawful order of the court.”2 Under longstanding Oklahoma law, indirect contempt must be proven beyond a reasonable doubt, and the Oklahoma Supreme Court will reverse a lower court that applies the wrong standard.3 In Henry v. Schmidt, the court reversed the indirect contempt citation issued against the defendant and discussed the distinction between remedial and penal contempt. “The trial court was authorized to impose remedial or coercive sanctions with the right to purge based on a clear-and-convincing standard. Because penal sanctions were imposed, the burden of persuasion standard was proof beyond a reasonable doubt.”4 In cases of penal contempt, the accused must be afforded a trial by jury. The court in Henry v. Schmidt reversed the trial court’s contempt citation for its failure to apply “a clear-and-convincing evidence standard rather than beyond a reasonable doubt” and for other reasons.5Thus, application of the correct legal standard is critical when a citation for indirect contempt is issued for purposes of punishment.

The district court must also follow very strict procedures when issuing a punitive contempt citation. A defendant facing punitive indirect contempt “is entitled to the constitutional protections afforded in criminal proceedings.”6  Oklahoma law establishes the procedure for cases of indirect contempt.

[T]he procedure governing punishment for indirect contempt is quite detailed and offers more protection to the accused. Title 21 O.S.2001 §567 requires “the party charged with contempt shall be notified in writing of the accusation and have a reasonable time for defense; and ... shall, upon demand, have a trial by jury.” The section also directs the court to set an appearance bond and set the case for trial at the next jury term.7

In short, statutory procedures must be followed and constitutional due process must be afforded a party accused of indirect contempt.

Jury Trial

The defendant in a punitive/penal contempt proceeding has a right to jury trial.8 Upon demand, “the court shall … set the case for trial at the next jury term of said court…”9 The Oklahoma appellate courts have emphasized the importance of a jury trial in cases alleging punitive contempt. “When a person is charged with an indirect contempt and has demanded a jury trial, and such demand has been refused by the trial court, any order made by such trial court adjudging the accused guilty of contempt, or attempting to commit him to jail, or which imposes any other penalty, is void.”10  While the accused may waive the right, any such waiver must appear clearly in the record.

In an indirect contempt proceeding with the imposition of penal sanctions, a defendant may waive his constitutional right to a jury trial only upon a clear showing that such waiver was competently, knowingly and intelligently given. A record showing an intelligent, competent and knowing waiver of a fundamental right is mandatory. Anything less is not a waiver.11

In short, because a penal contempt proceeding is very similar to a criminal proceeding, the accused must be afforded a jury trial upon demand.

Punitive Contempt Citation for Violation of Injunction

Title 12 Okla. Stat. §1390 governs contempt citations for violation of injunctions.12 Relying on §1390, the Oklahoma Supreme Court has established the procedure a lower court must follow before ordering confinement for violating an injunction.

[T]he court has authority under 12 O.S.1981, §1390 to do two things. First, it may require immediate restitution to the injured party; and second, it may require further security to obey the injunction. Upon the failure to perform either of these acts, the trial court is authorized to do one of four things. First, it may commit the guilty party to close custody until he complies with the requirements; or second, it may impose a fine for the violation; or third, it may confine the guilty party in the county jail for no longer than six months; or, fourth it may impose both the fine and the incarceration.13

In that case, the lower court had enjoined the defendant/appellant “from open air storage of heavy equipment, inoperable vehicles, building materials, trash, tires, or debris on his residential property,” and he had been charged with violating that injunction.14 A jury found him guilty, fined him $200 and sentenced him to serve time in the county jail.15 The issue in that case was whether the defendant should have been afforded “the opportunity to purge himself of contempt in lieu of incarceration.”16  In considering the issue, the Supreme Court quoted §1390 as follows:

An injunction granted by a judge may be enforced as the act of the court. Disobedience of any injunction may be punished as a contempt, by the court or any judge who might have granted it in vacation. An attachment may be issued by the court or judge, upon being satisfied, by affidavit, of the breach of the injunction, against the party guilty of the same, who may be re-quired to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged, or be punished by fine not exceeding Two Hundred Dollars ($200.00) for each day of contempt, to be paid into the court fund, or by confinement in the county jail for not longer than six (6) months, or by both such fine and imprisonment. This act shall in no way alter the right to trial by jury.17

The court observed a distinction depending on the nature of the contempt prosecution. “Where the procedure is for the benefit of the litigant, the trial court must follow 12 O.S. 1981 §1390, but if a prosecution for contempt is to vindicate the honor and dignity of the court and to compel respect for its authority, it is criminal in nature and must be prosecuted in the name of the State of Oklahoma.”18 The court found that, because the statute provided another method for the city to enforce the injunction, “other steps must be taken” before the defendant could be incarcerated. Thus, the court reversed and remanded the case.

Prosecution by State

The state, not the opposing party or counsel, should prosecute a punitive contempt case.

If the procedure was to vindicate the honor and dignity of the court and to compel respect for its authority, it was criminal in its nature and could not be prosecuted in [the plaintiff’s] name, but must have been prosecuted in the name of the state of Oklahoma … [A judgment prosecuted by the civil plaintiff] is unauthorized and unwarranted in a proceeding instituted in the name of an individual.19

Essentially, a contempt citation initiated for punitive purposes is criminal in nature and should, therefore, be prosecuted by the state. “The reason for the rule is apparent. The accused is entitled to be informed of the nature of the charge against him and be able to determine whether it is a [criminal] charge or a civil proceeding.”20 Thus, when a civil litigant is charged with punitive contempt, the state, not the opposing party, must prosecute the action. The Barbee court discussed the proper procedure for prosecuting punitive indirect contempt actions.

No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. Misdemeanors must be prosecuted by information, except as otherwise provided by law. An information has certain formal requirements which must be met. The district attorney must subscribe his name to an information; names and addresses of witnesses must be endorsed thereon; and the information must be verified by oath of the prosecuting attorney, complainant or some other person.21

In short, Oklahoma constitutional, statutory and case law recognize the necessity that a punitive contempt accusation be prosecuted by the state, rather than an opposing party’s attorney, and includes other safeguards for the accused.

Order of Confinement

By statute, an order of confinement for contempt must set forth the substance of the offense.22 When the sentencing court fails to comply with this requirement, “the judgment, sentence and order of commitment are void.”23  The Oklahoma Supreme Court has long upheld this statutory requirement. As the court stated in ex parte Hibler, “[T]he order of confinement must set forth the facts constituting the contempt, and … it is void unless it shows on its face facts sufficient to constitute a legal contempt; mere conclusions being insufficient.”24  The Hibler court reviewed a contempt order that merely adopted the allegations of the petition.25 The court found such vague language insufficient, stating, “The record in this case shows no compliance with the provisions of [the statute], either in the order itself or in the records of the court.”26Thus, the court found the order and record insufficient for confinement of the accused.27

Furthermore, Oklahoma statute requires that a criminal judgment contain certain information.28 Because a punitive contempt citation is a type of criminal judgment, the written judgment of contempt should probably also comply with that statute.

In short, the criminal nature of a punitive contempt citation requires that the court issuing the citation follow very specific procedures. These procedures extend to the order of confinement, which should give very detailed information in order to be upheld on appeal.

Purging the Offense

In cases of remedial indirect contempt, the defendant must be afforded an opportunity to purge the offense. In Davis v. Murphy, the Oklahoma Supreme Court recognized that “a proceeding for indirect contempt is civil in nature and imprisonment thereby imposed is not in punishment for an offense, but is remedial in nature for the purpose of coercing a defendant to do the thing ordered done.”29 In that case, the district court had awarded custody of a minor child to the paternal grandmother, but the child’s mother was granted care of the child for 75 consecutive days each year.30 “The grandmother failed to deliver the child in compliance with the terms of the original order.”31 The grandmother was sentenced to one year in jail for her contempt of court “with the provision that [s]he might be released in the event she produced the child.”32 The grandmother appealed that order.33 The Supreme Court found the terms of the sentence were just, insofar as the sentence allowed the defendant “to avoid serving any of the term by producing the child for the court…”34 The judgment was, therefore, affirmed.35 In essence, the contempt citation was issued to coerce the grandmother to produce the child, per the terms of the previous order. Thus, by purging the offense, the grandmother was not subjected to any jail time, and “the judgment cannot be said to be excessive or unjust.”36

In short, when a contempt citation is issued for purposes of coercion, the defendant should be afforded an opportunity to purge the offense, thus minimizing the negative effect upon the defendant. When the contempt citation serves punitive/penal purposes, however, it “cannot be shortened by compliance or by a promise to comply with a court order.”37 Thus, the sentence under a punitive contempt citation cannot be reduced or “purged” by compliance with the order.

Indirect contempt may serve one of two purposes: punishment or coercion. If the citation is issued for purposes of punishment, the issuing court must follow very specific procedures. The action must be brought by the state and must be a separate action from the underlying civil case. The defendant must be afforded a jury trial. The defendant’s guilt must be proven beyond a reasonable doubt. The sentence or order of confinement must set forth very specific information. Failure to follow these requirements will result in reversal of the citation upon appeal.

Mark B. Houts has represented both plaintiffs and defendants in a wide variety of civil litigation matters for more than a decade. He is presently the managing partner for Houts Law PLLC in Edmond. In law school, Mr. Houts served as articles editor for the Oklahoma Law Review. He has previously published works in the Oklahoma Bar Journal and the Oklahoma City Law Review.

1. Henry v. Schmidt, 2004 OK 34, ¶13, 91 P.3d 651, 654.
2. In re J.H., 2008 OK 104, ¶16, 213 P.3d 545, 549.
3. Henry v. Schmidt, 2004 OK 34, ¶1, 91 P.3d 651, 652-53.
4. Id.
5. Id.
6. Id. at ¶21.
7. In re J.H., 2008 OK 104, ¶16, 213 P.3d 545, 549.
8. 21 Okla. Stat. §567 (A). See also Okla. Const. art. II, §25. 
9. 21 Okla. Stat. §567 (B).
10. Blanchard v. Bryan, 1921 OK 285, 83 Okla. 33, 200 P. 444 (syllabus by the court). See also Blanton v. State, 1925 OK CR 458, 239 P. 698 (syllabus by the court); Henry v. Schmidt, 2004 OK 34, n.37, 91 P.3d 651, 656.
11. Henry v. Schmidt, 2004 OK 34, ¶19, 91 P.3d 651, 655 (citations and internal quotation marks omitted). 
12. Phillips v. Hedges, 2005 OK 77, ¶12, 124 P.3d 227, 231 (citing King v. King, 2005 OK 4, ¶22, 107 P.3d 570, 579) (“the statute enacted for the purpose of dealing with the [specific] subject matter controls over the general statute”).
13. City of Lawton v. Barbee, 1989 OK 147, 782 P.2d 927, 929-30.
14. Id. at ¶3.
15. Id. at ¶4. 
16. Id. at ¶0.
17. Id. at ¶5.
18. Id. at ¶9.
19. Ex parte Hibler, 139 Okla. 157, 281 P. 144, 146 (1929) (emphasis added). See also City of Lawton v. Barbee, 1989 OK 147, 782 P.2d 927, 930.
20. Morgan v. Nat’l Bank of Commerce of Shawnee, 1923 OK 240, 90 Okla. 280, 217 P. 388, 391 overruled on other grounds by Henry v. Schmidt, 2004 OK 34, 91 P.3d 651 (citing U.S. v. Cruikshank, 92 U.S. 542, 559, 23 L. Ed. 588, 593).
21. Barbee, at ¶9, n. 1 (citations and internal indicators omitted).
22. 21 Okla. Stat. §568.
23. Burris v. Hunt, 1998 OK CIV APP 125, ¶5, 965 P.2d 1003, 1005 (citing Hampton v. Hampton, 1980 OK 46, ¶2, 609 P.2d 772, 773).
24. Ex parte Hibler, 1929 OK 401, 139 Okla. 157, 281 P. 144, 146.
25. Id.
26. Id.
27. Id. See also Ex parte Dawes, 1925 OK CR 451, 239 P. 689, 692 (1925); Busby v. State ex rel. LaFon, 1969 OK CR 13, 449 P.2d 718, 721.
28. In full, that statute provides:
A. When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:
1. The indictment and a copy of the minutes of the plea or demurrer;
2. A copy of the minutes of the trial;
3. The charges given or refused, and the endorsements, if any, thereon; and
4. A copy of the judgment, which shall include a notation of the year of birth of the defendant and the last four digits of the Social Security number of the defendant. The judgment shall also contain the statutory reference to the felony crime the defendant was convicted of and the date of the offense.
B. The court shall obtain the year of birth of the defendant and the last four digits of the Social Security number of the defendant.
22 O.S §977.
29. Davis v. Murphy, 1947 OK 354, 188 P.2d 229, 230-31 (syllabus by the court). See also Henry v. Schmidt, 2004 OK 34, ¶13, 91 P.3d 651, 656 (allowing imposition of “remedial or coercive sanctions with the right to purge”).
30. Id. ¶¶2-3.
31. Id. ¶4.
32. Id. ¶¶4-5
33. Id.
34. Id. ¶12.
35. Id. ¶13.
36. Id. ¶12.
37. Henry v. Schmidt, 2004 OK 34, ¶13, 91 P.3d 651, 654.

Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 2409 (Dec. 16, 2017)