Mercer v. Mitchell

908 F.2d 763, 1990 WL 102345

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 8, 1990
• Docket: No. 89-8267
• Status: Published

Opinions

TJOFLAT, Chief Judge:

The civil contempt power of the United States courts is limited to “the least possible power adequate to the end proposed.” Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (1821). The appellants (the County)¹ claim that the district court exceeded this power by fining the County $30,600 for operating a county jail in violation of prior court orders. Although we will vacate a district court’s exercise of its contempt power only when we find that the court abused its discretion, see Sizzler Family Steak Houses v. Western Sizzlin Steak House, Inc., 793 F.2d 1529, 1534 n. 4 (11th Cir.1986), we agree with the County and conclude that the district court did abuse its discretion here. We therefore vacate the district court’s judgment.

I.

This case began in 1974, when a group of prisoners filed a section 1983 class action suit, see 42 U.S.C. § 1983 (1982), claiming that the Chatham County Jail was being operated in violation of the United States Constitution. According to the plaintiffs in that suit, the jail was extremely overcrowded, and the defendant (the County) essentially agreed. The County announced plans to build a new jail facility, and the litigation abated during construction of that facility.

When the facility was completed, the class of jail inmates (with appellee Mercer as one of the named plaintiffs) again challenged the constitutionality of conditions prevailing in the facility. The litigation ultimately resulted in a district court order of November 19, 1981, in which the court placed a temporary cap of 446 inmates on the jail and ordered county officials to reduce the jail population to a “manageable” level. Approximately one year later, the plaintiffs moved the court to exercise its civil contempt power in light of the County’s failure to comply with the November 19, 1981 order. The court stated, in response to that motion, that it was not “convinced ... that, at this point, sanctions available upon a finding of civil contempt would ensure compliance with the law.” (Emphasis in original.) The court therefore deferred ruling on the plaintiffs’ motion.

One year later, the plaintiffs again requested the court to hold the County in contempt for failure to comply with the prior court orders on overcrowding. Again, the court refused to hold the County in contempt; it did, however, reduce the cap to 381, granting permission to exceed the cap only temporarily in bona fide emergencies.

Finally, on February 23, 1988, the court entered an order directing the County to show cause why it should not be held in contempt and sanctioned accordingly for failing to comply with the court-ordered cap on the jail population. After conducting a hearing on the matter, the court concluded that its order had been disregarded, “but not maliciously.” The court then raised the cap to 389 (eight additional beds had been added) and stated that

[f]or any portion of a day that prisoners exceeding the cap [of 389] are in the jail, a fine of at least One Hundred Dollars ($100) per prisoner will be assessed against the County Commissioners, and will be paid into this court as a fine; not to be refunded to the county.

The court concluded with an admonition: “The Order will be enforced.” Significantly, however, the court never held the County in contempt.

On October 6, 1988, the jail population reached 393. By the end of the day, however, jail officials managed to reduce the population to comply with the cap of 389. In response to this temporary increase in inmate population, the plaintiffs moved the court to hold the County in civil contempt of court and impose sanctions. The court conducted a hearing and imposed a fine of $100 per day for each of the four prisoners held in excess of the cap. In its order of November 9, 1988, however, the court never found the County to be in contempt; it merely imposed a fine “in accordance with” its order of February 24, 1988.

During the weeks following the November 9 order, the jail population exceeded the cap several times. On January 25, 1989, the plaintiffs again moved the court to find the County in contempt and to impose sanctions. The court did not enter an order directing the defendants to show cause why they should not be held in contempt, nor did it conduct a hearing on the matter. Instead, on February 7, 1989, the court ordered the County to pay a fine of $200 per day (or every part thereof) for every prisoner held in violation of the cap. The court never mentioned whether it was holding the County in contempt; it merely directed the parties to submit a statement to the court indicating the number of prisoners held in violation of the cap. Although the court discussed the efforts made by county officials to resolve the overcrowding problem, it concluded with a notable statement: “The Court will accept no excuses for not complying with its Order.”

On February 8, counsel for the plaintiffs certified to the court the number of prisoners held in violation of the cap. On February 9, the Chatham County Board of Commissioners met to discuss plans to alleviate the overcrowding situation and, on February 10, approved an expenditure of $175,-000 to accelerate completion of a new jail facility. On the same day, at 10:47 a.m., the court imposed a fine of $30,600 based on the plaintiffs’ certification. The court did not give the County an opportunity to show cause why it should not be held in contempt.

That afternoon, the County moved the court to modify the cap. The court held an in-chambers hearing, during which it determined that the County could safely accommodate thirty more prisoners for short-term periods. The court therefore entered an order allowing the County to exceed the cap by thirty prisoners during weekends and in emergency situations, provided that, within forty-eight hours of the next weekday, the population was reduced to 389. The court noted that this measure was temporary and would expire on May 8, 1989 — after the new jail facility was due to be completed.

On February 22, 1989, the County moved the court to reconsider its order imposing the fine of $30,600. The County argued that, had the court known of the Board of Commissioners’ decision on February 10 to expend an additional $175,000 to expedite completion of the new jail facility, the court would not have imposed the fine that same day. The court denied that motion, and the County now appeals the court’s judgment embodied in the orders of February 7, 1989 and February 10, 1989. We conclude that the court imposed the fine without providing the County due process of the law. We therefore vacate the court’s judgment imposing the fine and remand for further proceedings consistent with this opinion.

II.

Although a district court has a certain amount of discretion in fashioning civil contempt sanctions and the procedure by which those sanctions are imposed, the court must stay within the bounds of due process. When the purportedly contumacious conduct occurs outside the presence of the court,² due process requires, with very few exceptions,³ that the defendant⁴ (1) be informed, through a show-cause order,⁵ of his purportedly contumacious conduct, and (2) be given a hearing at which he can be represented by counsel, call witnesses, and testify in order to show cause why he should not be held in contempt. See In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948); Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925). From these skeletal requirements, courts have fashioned a typical (although by no means exclusive) contempt proceeding.⁶ We outline that proceeding to show that the district court below substantially departed both from the model and from the requirements of due process.⁷

Every civil contempt proceeding is brought to enforce a court order that requires the defendant to act in some defined manner. The defendant then allegedly acts, or refuses to act, in violation of the order. The plaintiff would like the defendant to obey the court order and requests the court to order the defendant to show cause why he should not be held in contempt and sanctioned until he complies. See In re Birmingham Reverse Discrimination Employment Litig., 833 F.2d 1492, 1501 (11th Cir.1987), aff'd sub nom. Martin v. Wilks, — U.S.-, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). If the court finds that the conduct as alleged would violate the prior order, it enters an order requiring the defendant to show cause why he should not be held in contempt and conducts a hearing on the matter. See Newman v. State of Ala., 683 F.2d 1312, 1318 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 346 (1983).

At the hearing, the defendant is allowed to show either that he did not violate the court order or that he was excused from complying. See id. Typically, a defendant will argue that he should not be held in contempt because changed circumstances would make strict enforcement of the order unjust. In such a case, the defendant should move the court to modify the order, and the hearing on the show-cause order would take on the appearance of a hearing on a motion to modify an injunction. See In re Birmingham, 833 F.2d at 1501. If the court determines that the order should be modified and that the defendant’s conduct did not violate the order as modified, then ordinarily it would be unjust to hold the defendant in contempt.⁸ But see infra note 8 (discussing circumstances in which such a holding would be just). If, however, the court concludes that the order should not be modified and that the defendant did not comply with the order, then the court may hold him in contempt and impose sanctions designed to ensure compliance.⁹ Thus, the typical proceeding satisfies the two essential requirements of due process: notice and hearing.

The proceedings under scrutiny today look nothing like the typical civil contempt proceeding. Initially, the court ordered that a cap be placed on the jail population. When the population exceeded that cap, the plaintiffs instituted a contempt proceeding, but the court, in its February 23, 1988 order, refused to hold the County in contempt for its past conduct. Instead, it merely declared that it would enforce its order with fines in the future. In essence, that order represented something akin to a traffic ordinance, in which a speed limit and schedule of fines are established for future conduct. The order did not, and could not, constitute a holding that certain future conduct would be contumacious: such a holding would deprive the County of its due process right to show cause why it should not be held in contempt.

In its order of February 7, 1989, the court again departed from the model of civil contempt when it directed that the County be fined $200 per prisoner per day. The court did not enter a show-cause order or conduct a hearing; indeed, it stated that it would not accept any excuses for violating its previous orders. As we note above, however, a defendant should always be given an opportunity to show that changed circumstances would make holding him in contempt unjust. The court implicitly stated that, “even if I were to conduct a hearing on this matter, it would do you no good. I have already decided against you.” Clearly, this was not a proper contempt proceeding: the court, without ever finding the County to be in contempt, simply enforced its quasi-legislative ordinance of February 23, 1988. We think that the court ignored both the due process requirement of a hearing and the established principle that a court must allow the defendant an opportunity to request modification of the order based on changed circumstances.¹⁰

Finally, the court’s order of February 10, in which the court calculated and imposed the $30,600 fine, is similarly flawed. No show-cause order or hearing preceded the order, and we assume that the court acted in accordance with its statement three days earlier that it would accept no excuses. Again, the court made no finding of contempt. For the reasons stated above, this proceeding represents a substantial departure from the typical contempt proceeding and from the requirements of due process.¹¹

Because the court’s orders of February 7,1989 and February 10,1989 were entered in violation of the County’s due process rights, we vacate the court’s judgment and remand for further proceedings consistent with this opinion.

III.

As a final matter, we note that the district court’s handling of these contempt proceedings reflects a basic misunderstanding of the purpose of court-imposed caps on prison populations and the proper method of enforcing such caps. We pause briefly to explain.

A court imposes a cap on a prison population for one reason: to ensure the safety of the convicted inmates and pretrial detainees in compliance with the eighth amendment, and the due process clauses of the fifth or the fourteenth amendments. Therefore, the court evaluates the facility, the number of beds and cells available, and the number of guards and staff members to determine the maximum number of inmates that can safely be held in the facility. If a court finds that, after a cap has been set, the prison officials have added more guards or more beds, and if the officials can convince the court, upon motion to modify the cap, that, even with more inmates, the facility meets the constitutional requirements, the court may raise the cap accordingly.

Court-ordered caps are most frequently enforced through the court’s civil contempt power. Thus, when a defendant operates the facility in violation of the cap, the plaintiff may institute contempt proceedings. The court issues a show-cause order and conducts a hearing: if the defendant does not move to modify the cap, or if the defendant does move and the motion is denied, then the court imposes sanctions to coerce the defendant into compliance with the order. The contempt proceeding, however, should never be conducted in a vacuum— the court must always be mindful of the cap’s purpose.

When a driver of a large, luxury sedan substantially exceeds the highway speed limit, he might offer as an excuse to the police officer that the purpose of speed limits is to ensure the safety of persons using the roads. A large, luxury sedan, the driver would add, is built to operate safely at much higher speeds than, say, a compact automobile. Therefore, according to the driver, the officer should keep in mind the purpose of speed limits and not punish the driver. The ticket, nevertheless, issues. A court’s authority to hold a party in contempt, however, is nothing like a police officer’s duty to issue citations for every violation of the traffic ordinances. A court has discretion, and it should exercise its discretion to hold a party in contempt only when doing so would vindicate the purpose of the underlying order. Thus, if the prison officials move at the show-cause hearing to modify the cap because the facility can safely handle more inmates, then we see no reason to hold the officials in contempt for conduct that would not be contumacious under the modified cap.

In this case, approximately five hours after the court had imposed the $30,600 fine on the County, the County moved the court to modify the cap, and the court held an in-chambers hearing on the matter. At the hearing, the County convinced the court that it could safely hold an additional thirty inmates in the jail in certain temporary situations. The plaintiffs agreed, and the court modified the cap accordingly. If the court had conducted a show-cause hearing prior to its February 7 or February 10 orders, presumably the County would have offered the same evidence regarding the safety of inmates in certain temporary situations when the population exceeded the cap. But, according to the court, it would not accept any excuses. This rigid approach to enforcing the cap explains the court’s departure from the requirements of due process: if no excuse (including proof that, due to changed circumstances, the violation did not increase the risk of harm to the inmates) would be accepted, then there was no reason to conduct a hearing. Thus, the court’s fundamental misunderstanding of the cap’s purpose led to its deprivation of the County’s due process rights. And the departure is even more striking given the evidence in the record that, had a show-cause hearing been conducted prior to the February 7 and February 10 orders, the court probably would have granted the County’s motion to modify the cap at that time.

We hope that, in the future, district courts will consider the purpose of enforcing caps before entering coercive orders like those entered in this case. Failure to do so will inevitably lead to a derogation of procedural rights, as in this case, and will undermine the public’s respect for judicial authority, especially when used to coerce compliance for no discernible reason.

IY.

For the foregoing reasons, we vacate the district court’s judgment and remand for further proceedings consistent with this opinion.

VACATED and REMANDED.

1 . The appellants in this case are: the Sheriff of Chatham County, Georgia, the Chief Jailor of the Chatham County Jail, and the commissioners of Chatham County. For the sake of simplicity, we refer to the appellants collectively as the County.

2 . If the conduct occurs in the court’s presence, it is direct contempt, while if the conduct appears outside the court's presence, it is indirect contempt. We are dealing here with purportedly indirect contempt.

3 . See infra note 11.

4 . Of course, any party can violate a court order and be held in contempt. In this opinion, we use the term "plaintiff" to represent the party seeking to enforce the court order and "defendant” to represent the party that has allegedly violated the court order.

5 . The show-cause order has been a required element of civil contempt proceedings since Blackstone’s time. See W. Blackstone, Commentaries *286-87.

6 . The dissent asserts that we are testing the district court’s procedure in this case against our model of a typical civil contempt proceeding. To the contrary, we use our model only as an illustration of a proceeding that would always satisfy due process requirements; but we judge the district court’s conduct only with the bare requirements of due process in mind.

7 . The dissent maintains that the County never presented its due process argument to the district court and, therefore, that we may not address the due process argument on appeal. The dissent states the rule correctly: we "generally will not consider a legal issue or theory unless it was presented to the trial court." Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th Cir.1984). The dissent, however, proceeds to misapply the rule to this case. This misapplication is the result of the dissent’s fundamental misunderstanding of how a civil contempt proceeding should be handled by the district court. When the plaintiff moves the court to order the defendant to show cause why he should not be held in contempt, the court, in most cases, must enter a show-cause order and conduct a hearing. Moreover, the court must take these procedural steps whether or not it is requested to do so by the defendant. Therefore, a court’s error in failing to enter a show-cause order or conduct a hearing will not become apparent until the court has found the defendant to be in contempt and sanctioned him without following the requirements of due process. Therefore, a defendant has no reason to raise a due process argument until the error has occurred — after he has been sanctioned.

In this case, the County brought its due process argument to the court’s attention in the brief supporting its motion to reconsider filed less than two weeks after the court imposed the $30,600 fine. Although it did not label the district court’s error as a violation of “due process,” it did assert that the district court should have conducted some type of hearing prior to imposing the fine. The County made the following argument in its brief:

Furthermore, it is submitted that if [the court] had been aware at the time of entering the order of 10:47 a.m., on February 10, 1989, that the Chatham County Board of Commissioners was at the same time agreeing to expend an additional $175,000 to accelerate the construction of the new jail detention facility, perhaps [the court] would have been of the opinion that the Commission, in essence, had imposed a fine upon itself already and would not have imposed an additional fine of $30,-600 upon the Commission and the taxpayers of this County.

... As in [Newman v. Graddick, 740 F.2d 1513, 1525 (11th Cir.1984) ], the newly-elected Chatham County Commission in the case presently before [the court] has acted not only diligently, but also responsibly to assist the Sheriff with the jail overcrowding problem. The Eleventh Circuit Court of Appeals in the Newman case reversed contempt orders issued by the trial court apparently because the trial court in Newman had not been aware that the Governor of Alabama and the Legislature met in special session at great expense to the taxpayers to enact special authority to assist the Department of Corrections in solving the overcrowding problem in Alabama.

The facts before [the court] are very similar to the Newman v. Graddick situation in that [the court] issued an order on February 10, 1989, at 10:47 a.m., apparently unaware that the Board of Commissioners was acting simultaneously at the expense of the taxpayers to assist in alleviating the jail overcrowding problem.

Thus, the County faced an order (of February 7) that at most said that the court was considering holding the County in contempt. The County Board of Commissioners acted to comply with the cap but apparently could not notify the court of its action before the court imposed the fine on February 10. The County then moved the court to reconsider its February 10 order, arguing that, had the court known of the Board’s action, it might have acted differently. The County cited Newman, in which we agreed with the defendant’s argument that the district court should have provided an "opportunity to be heard” on recent actions taken by the defendant to alleviate prison overcrowding. We reversed the order of contempt on that ground.

While the County did not specifically tell the court that it had not satisfied the requirements of due process in imposing the fine, it did very clearly tell the court that it should have conducted a hearing on a material issue of fact. It did so in the extract from its brief quoted above by (1) asserting that it had acted with reasonable diligence to comply with the court’s order, see infra note 11, (2) suggesting that the court might have acted differently had it been aware of the most recent developments, and (3) citing and discussing a case in which we held that the court erred in failing to conduct a hearing on the "reasonable diligence" issue prior to sanctioning a defendant. See Leonard v. Pan American World Airways, Inc., 905 F.2d 1457, 1462 (11th Cir.1990) (claim must be presented “in such a way as to afford the district court an opportunity to recognize and rule on it’’); cf. Moreau v. Oppenheim, 663 F.2d 1300, 1307 (5th Cir.1981) (ambiguous allusion to legal theory plus more specific verbal reference sufficient to raise the theory in the district court), cert. denied, 458 U.S. 1107, 102 S.Ct. 3486, 73 L.Ed.2d 1368 (1982); McLearn v. Cowen & Co., 660 F.2d 845, 849 (2d Cir.1981) (legal theory sufficiently raised in district court even though theory was incorrectly labeled, so long as sufficient to give notice of argument to opposing party and court).

8 . The civil contempt power may be used for one of two reasons: “to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses suffered.” United States v. United Mine Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). When circumstances have changed so that (1) noncompliance does not injure the complainant, or (2) there is no harm resulting from continued contumacious conduct, then, in most cases, it would be unjust to hold the defendant in contempt. See id. at 304, 67 S.Ct. at 701.

9 . Of course, the sanctions may not be any greater or more onerous than is necessary to ensure compliance.

10 . Our holding today in no way gives a party license to flout or wilfully to disobey a court order by violating the order and then complying with the order before the contempt proceeding begins. The court still will have two means of coercing compliance or punishing the defendant. First, the court may conclude that, even though the defendant is in technical compliance at the time of the proceeding, the defendant’s prior conduct indicates that he will not continue to comply with the court’s injunction. In such a case, it may be appropriate to hold the defendant in civil contempt and sanction him until he satisfies the court that he will indeed obey the injunction. Second, if the court finds the defendant acted wilfully or maliciously in disregarding the injunction, then the court may cite the defendant for criminal contempt. See United States v. Hilburn, 625 F.2d 1177, 1179 (5th Cir.1980). In such a case, the court may fully vindicate its authority with a fine, imprisonment, or both. Thus, in no situation is the court left without authority to act when the defendant appears to be flouting judicial authority. The record before us, however, contains no evidence of such conduct by the County.

11 . The dissent asserts that the requirements of due process in a civil contempt proceeding are flexible, varying with the circumstances of each case. We agree. For example, as the dissent notes, when there are no disputed factual matters that require an evidentiary hearing, the court might properly dispense with the hearing prior to finding the defendant in contempt and sanctioning him. See Morales-Feliciano v. Parole Board, 887 F.2d 1, 6-7 (1st Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1511, 108 L.Ed.2d 646 (1990). This principle, however, implies its converse. If the court is faced with a material issue of fact, then due process requires the court to conduct a hearing. See E.C. Ernst, Inc. v. Manhattan Constr. Co., 559 F.2d 268, 273 (5th Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978).

Consider again how the district court proceeded in this case. When the plaintiffs moved the court on January 25 to find the County in contempt and impose sanctions, the County filed a response in which it asserted that it had diligently attempted to comply with the court’s order. We have held that when a person attempts with reasonable diligence to comply with a court’s order, that person should not be held in contempt. See Newman v. Graddick, 740 F.2d 1513, 1525 (11th Cir.1984). Therefore, in its response, the County put into issue a material fact (in addition to the ever-present question whether circumstances had changed in a way that would make finding the defendant in contempt unjust). When the court entered its February 7 order stating that it would not consider any excuses presented by the County, it ignored two important questions: (1) whether the County had acted diligently and (2) whether circumstances had changed. Even if the court was convinced on February 6 that the County had not acted diligently or that circumstances had not changed, the court still had to consider those questions until the moment it entered its finding of contempt. Otherwise, the civil contempt sanction could not serve the purpose of coercing compliance. Therefore, the questions of diligence and changed circumstances were live and material when the court entered its February 7 order. Consequently, the court ignored the due process requirement that a hearing be conducted on all issues of material fact and imposed what amounted to a punitive, or criminal, contempt sanction on February 10.