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contempt the collateral bar rule
Contempt & the Collateral Bar Rule
  • A party who willfully violates an injunction issued by a court of competent jurisdiction and who is subsequently prosecuted for criminal contempt cannot defend against contempt charges based on the fact that the injunction erroneously issued (even if it turns out that the injunction was erroneous or even unconstitutional).
    • Compare position of a criminal D who can raise the invalidity of a law (especially it’s unconstitutionality) at a criminal prosecution.
  • What is the purpose of the collateral bar rule?
    • Efficiency
    • Respect for the court’s authority
exceptions to collateral bar rule
Exceptions to Collateral Bar Rule
  • Lack of Jurisdiction
    • An order issued by a court without subject matter and personal jurisdiction is void and can be violated with impunity
  • But the collateral bar rule still applies:
    • If the court does notclearly lack jurisdiction, or
    • If court has expressly reserved jurisdiction to determine its jurisdiction (even if it turns out later that jurisdiction does not exist)
jurisdiction exception clearly lacking jurisdiction
Jurisdiction Exception – Clearly Lacking Jurisdiction
  • Assume that a lawsuit is filed in state court regarding a violation of federal statutory law. The federal statute may preempt state court jurisdiction but the statutory text is unclear and the federal courts are split regarding preemption.
    • If the state court enjoins X from acting and X later violates the injunction, can X avoid contempt sanctions if it later turns out that the state court was pre-empted from exercising jurisdiction?
      • NO – the state court did not CLEARLY lack jurisdiction at the time it issued the injunction so X was still bound to obey the injunction.
jurisdiction exception jurisdiction to determine jurisdiction
Jurisdiction Exception – Jurisdiction to Determine Jurisdiction
  • Hypo:
  • Union strikes in violation of NLRA.
  • US sues in federal court to enjoin strike. Federal statute precludes federal court injunctions against strikes with few exceptions none of which applied.
  • Union raises the jurisdiction issue. United States (which was acting as employer at the time) argues that that federal law shouldn’t preclude federal gov’t as employer from suing in federal court.
  • Court continues injunction until it can decide the jurisdictional issue.
  • If the union violates the injunction before the court decides the jurisdictional issue, can it raise lack of jurisdiction as a defense to criminal contempt if the court later determines there was no jurisdiction?
    • NO – courts have jurisdiction to determine jurisdiction and parties subject to injunctions cannot violate them during the pendency of a determination regarding court’s powers.
exceptions constitutional 1st amendment defense
Exceptions - Constitutional/1st Amendment Defense (?)
  • Some state courts recognize exceptions to the collateral bar rule when the challenge to the injunction’s invalidity is that it violates the 1A:
    • “It is a flagrant denial of constitutional guarantees to balance away [free speech] principles in the name of “respect for judicial process.” To preach “respect” in this context is to deny the right to speak at all.
        • Ex parte Tucci, 859 S.W. 2d 1, 2 (Tex. 1993)
more exceptions to collateral bar rule
More Exceptions to Collateral Bar Rule
  • Transparently Invalid Injunctions
    • A transparently invalid injunction is not subject to the collateral bar rule.
    • What is a transparently valid injunction?
      • Classic e.g.: The law on which injunction based was already declared invalid or injunction was based on law almost identical to law that was declared invalid.
      • Increasingly courts say an injunction is transparently invalid if it violates “clearly settled law” even if it is not nearly identical to already invalid law
  • Delay & Frustration
    • If before disobeying an injunction a contemnor tries to challenge it in court but meets with delay or frustration, she is not subject to the collateral bar rule.
      • Does contemnor have the ability to challenge the injunction?
      • Have they met with delay/frustration?
injunctions contempt third parties notice
Injunctions, Contempt, Third-Parties & Notice
  • To find a person/entity in contempt – they must be “bound” by the injunction – FRCP 65(d)(2) (and most state analogs) deal with this issue specifically.
  • FRCP 65(d) - Contents & Scope of Injunctions

(2) Persons Bound. The order binds only the following who receive actual notice of it by personal service or otherwise:

    • (A) the parties;
    • (B) the parties' officers, agents, servants, employees, and attorneys; and
    • (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).
  • Two Issues arise:
    • Who is bound under FRCP 65(d)(2)?
    • What does it mean to have “actual notice”?
who is bound parties officers agents servants employees and attorneys
Who is bound - parties, officers, agents, servants, employees, and attorneys
  • HYPO: Race discrimination class action filed by Linduh against Wilco, Inc. D is enjoined from discriminating against hiring and firing of persons based on race. D issues a directive to all employees to stop discrimination.
    • If D’s supervisors/managers continue to discriminate, can D be held in contempt? Can D’s supervisors and managers be held in contempt?
  • Answer
  • D can be held in contempt via respondeat superior liability.
  • Others also can be held in contempt under Rule 65(d) because they are agents/servants/employees of D.
who is bound active concert
Who is Bound – Active Concert
  • HYPO: In lawsuit involving A&B (animal rights activists), who vandalized the law school, A&B are enjoined from defacing law school property. A week later C&D, who belong to the same organization as A&B but who are not named in the injunction, enter law school property and deface the picture of John K. Hulston.
  • Can C&D be held in contempt of earlier order?
    • Yes – IF there is evidence that C&D were “acting in concert” with A&B.
      • A&B can also be held in contempt.
  • Active concert = were A&B using C&D to get around the court order. Key is “subterfuge” of some kind
who is bound successors in interest
Who is bound – successors in interest
  • Koster, state attorney general, is enjoined from enforcing Missouri’s railroad rate law, which is found unconstitutional. Koster loses the next election and is succeeded by Trachtenberg. Is Trachtenberg bound the injunction against Koster?

Yes: - (1) FRCP 26 requires that new state officer automatically be substituted for old in pending lawsuits against such officers in their official capacity. (2) It follows that under FRCP 65(d)(2) a new state officer would be substituted for old – and thus bound by – an existing injunction issued in an official capacity case. Presumption seems to be that the successor in interest is “acting in concert” with former official since all work is done in official capacity.

rule 65 and the notice requirement
Rule 65 and the Notice Requirement
  • Rule 65(d): order is binding only on those persons covered by the rule “who receive actual notice of the order by personal service or otherwise.”
    • A person cannot be bound by an order of which they are unaware.
  • For parties this is rarely a problem BUT what about those listed in FRCP 65 but who are not parties to litigation – they must have notice too.
    • FRCP notes that personal service isn’t necessary BUT order must be made public in (1) circumstances that person is likely to have come to know of it (2) from a credible source
      • Examples: pervasive local publicity about order, being informed of order from local authority, posting of order in employee lounge of one’s workplace