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Contempt – Remedial – Monetary Damages Unavailable for Past Contempt

Milton J. Christensen, et al. v. Sullivan, et al., 2009 WI 87, reversing 2008 WI App 18
For Christensen: Peter M. Koneazny, Patrick O. Patterson

Issue: Whether remedial contempt supports monetary sanction for past acts (here: intentional violations of jail-overcrowding consent decree) where the sanctionable conduct has terminated.

Holding: Remedial sanction, including monetary award, is limited to “continuing” contempt of court, and is therefore unsupported for past acts of contempt.

¶58      Section 785.04(1)(a), if read in isolation, could be somewhat ambiguous on this score. [8] Standing alone, the paragraph could be interpreted as allowing payment of a sum of money for a loss or injury suffered in the past; however, such an interpretation would ignore the fact that the continuing nature of the contempt is what authorizes the court to impose a remedial sanction as opposed to a punitive sanction. [9] See Wis. Stat. § 785.01(3) (“‘Remedial sanction’ means a sanction imposed for the purpose of terminating a continuing contempt of court.”); Note, § 11, ch. 257, Laws of 1979, at 1355 (“[A] remedial sanction . . . cannot be imposed if for any reason the contempt has ceased, even as the result of the settlement of a case.”) (emphasis added); see also King, 82 Wis.  2d at 131-32, 138 (disallowing civil contempt proceedings under the previous contempt statutes after the underlying dispute settles); 17 Am. Jur. 2d Contempt § 145 (“When the parties settle the underlying case that gave rise to a civil contempt sanction, the contempt proceeding is moot, since the case has come to an end.”). Permitting the imposition of a remedial sanction in a situation where there is no continuing contempt would effectively rewrite the statute.[10]Therefore, the key to the issue in this case is whether the County’s contempt of court was continuing on and after the September 13, 2004 motion for a finding of contempt and imposition of remedial sanctions.¶59      Chapter 785 does not define “a continuing contempt of court.” If the court is required to interpret a statute and the words in the statute are not defined, the court must apply the ordinary meaning of the words to give effect to the statutory language. Kalal, 271 Wis.  2d 633, ¶45.

¶60      The word “continuing” has many definitions. However, when using “continuing” in the context of determining whether something has either been terminated or is ongoing, as in this statute, see Wis. Stat. § 785.01(3), the word generally means “[t]o go on with a particular action or in a particular condition; persist,” The American Heritage Dictionary of the English Language 408 (3d ed. 1992), see also Black’s Law Dictionary 316 (7th ed. 1999) (“(Of an act or event) that is uninterrupted <a continuing offense>.”).

¶78      Inasmuch as the County’s contempt of court had ceased and was no longer continuing at the time the contempt proceedings were initiated, remedial sanctions could not be imposed. Consequently, we affirm the circuit court’s judgment denying the plaintiff class remedial sanctions in this case.

Severe jail overcrowding led to a consent decree, notwithstanding which such a “staggering” number of violations continued to occur such that the circuit court found them to be “intentional,” ¶35. But, because the violations ceased once the plaintiffs sought redress through this contempt action, they were no longer “continuing” and thus no longer subject to remedial sanction—according to the supreme court. Punitive sanction might be supported, but that remedy “is not specifically concerned with protecting private rights,” ¶52, and therefore wouldn’t result in a monetary award. “In fact, imposing punitive sanctions is much akin to imposing a criminal penalty, which is why the legislature has required that proceedings for punitive sanctions be brought exclusively by ‘[t]he district attorney of a county, the attorney general or a special prosecutor appointed by the court’ in a nonsummary procedure. Wis. Stat. § 785.03(1)(b) …,” ¶53. Unless you think there’s the remotest chance of prosecution of a law enforcement agency, then once you take monetary award off the table you’re essentially saying that as a practical matter there is no remedy at all for a staggering, intentional violation of a court order.

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