Impossibility as a defense to contempt

1. Impossibility as a defense to contempt • Impossibility of compliance with a court order is a defense to contempt (both criminal and civil coercive). • “No matter how reprehensible the conduct is it does not warrant issuance of an order which creates a duty impossible of performance so that punishment can follow.” • Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 781 (9th Cir. 1983) • It is the contemnor’s burden to prove impossibility • What if the contemnor is partly responsible for why she can’t comply? • Courts are unlikely to allow the impossibility defense. If contemnor was originally held in (or court was planning to hold in) coercive contempt, court will probably hold a new criminal contempt hearing instead since no amount of coercion is likely to work.

2. Determining when it is impossible for the contemnor to comply with the court’s order • Often it’s just a matter of credibility – does the contemnor’s story hold up to scrutiny? • Passage of time can bolster contemnor’s story • Contemnors’ claims of impossibility that courts did not believe: • A, who was ordered to turn over thousands of dollars, claimed to have accidentally flushed it down the toilet • B, who was ordered to turn over $18,000, claimed to have lost it out of his pocket while out bird hunting • Court released him after 8 months in jail • C, who was ordered to turn over cash, claimed to have lost $2.8 million through bad investments with friends and family

3. 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 criminalcontempt 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 (this rule is invoked re provisional injunctions) • Respect for the court’s authority • Missouri appears to follow the collateral bar rule – although there are few reported cases

4. 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)

5. 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.

6. 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.

7. 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) • California and Texas are prominent states with this exception

8. More Exceptions to Collateral Bar Rule • Transparently Invalid Injunctions • A transparently invalid injunction is not subject to the collateral bar rule. • 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. • Why doesn’t Walker involves this exception? • 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. Two questions: • Does contemnor have the ability to challenge the injunction? • If NOT, then the collateral bar rule doesn’t apply • Have they met with delay/frustration?