July 22, 2009 – A circuit court could not impose remedial sanctions on the Milwaukee County Jail because intentional violations of a consent decree ended before the court found county officials in contempt, the Wisconsin Supreme Court held on July 21.

In Christensen v. Sullivan, 2009 WI 87, the supreme court stated that a “remedial” sanction is statutorily defined as one “imposed for purposes of terminating a continuing contempt of court.” Although the circuit court found the violations “staggering in number” and persisted for two and a half years, the circuit court had no means for redress, a majority of justices said.

But dissenting justices disputed the court’s statutory interpretation. They further argued that even if it were true, the circuit court has the inherent authority to address the contempt not contemplated by the statute.

Compliance with a consent decree

A consent decree in 2001 followed a class action suit filed by 16,662 former Milwaukee County Jail inmates against Milwaukee County, the Milwaukee County sheriff, and others, alleging substandard conditions created by overcrowding.

Among other things, the consent decree imposed a limit of 110 inmates who could be held in the jail’s booking-open waiting area (BKOW). It further stipulated that no person would remain in the BKOW longer than 30 hours.

Conditions did not improve, and the plaintiff class filed a motion in 2004 alleging that the county had breached the consent decree between 2001 and 2004. In particular, the plaintiffs charged that the county regularly subjected inmates to a booking process lasting longer than 30 hours, forced them to sleep next to urinals, provided no pillows or blankets, forced inmates to sit up for hours and hours on end, and kept them in unsanitary and bug-infested conditions.

The county did not dispute the judge’s findings of a “staggering” number of violations or that they were intentional. Also undisputed was that violations of the 30-hour rule for the BKOW ceased immediately after the plaintiffs forced the issue in court. The circuit court found the county had been in contempt of court, but refused to award money damages as remedial sanctions because the contempt was not “continuing.”

Plaintiffs were also unable to collect damages for emotional distress stemming from the jail conditions because that remedy was not mentioned in the consent decree, the circuit court said. The plaintiff class had been certified for declaratory and injunctive relief only, the circuit court added.

The court of appeals reversed the circuit court’s contempt ruling, relying upon Frisch v. Henrichs, 2007 WI 102. In Frisch, an ex-husband owing child support belatedly turned in tax information after the ex-wife moved to have him held in contempt. The Frisch court held the ex-husband’s tardy compliance could not shield him from remedial sanctions because his contempt was “continuing” in that the ex-wife had been irreparably harmed.

‘Continuing contempt’ defined

In a majority opinion authored by Justice David Prosser, the supreme court affirmed the circuit court’s understanding of Wisconsin’s contempt law.

The court noted that since 1979, Wisconsin provides for either “remedial” or “punitive” sanctions for contempt of court. “Punitive” sanctions “punish a past contempt” and uphold the authority of the court, whereas a “remedial” sanction is for “terminating a continuing contempt of court,” the court explained, quoting Wis. Stat. § 785.01. The plaintiffs in this case sought remedial sanctions because only they may give relief to a private party litigant, the court explained.

“Continuing” lacks a statutory definition, the court said. Applying a dictionary definition, the court said the word means “[t]o go on with a particular action or in a particular condition; persist.” By that definition, the court said the county’s contempt was no longer “continuing” after it corrected the violations in April 2004.

Reconciling Frisch

Addressing the court of appeals’ reading of Frisch to find the county in “continuing” contempt, the justices distinguished the harms inflicted. In Frisch, “delinquent disclosure [of the ex-husband’s tax information] was ineffectual because it deprived the mother of her traditional remedies in the law, as the court was blocked by statute from retroactively modifying the father’s child support obligations,” the court said.

By contrast, the county’s compliance for the several months leading up to the contempt motion meant that no member of the plaintiff class was actually being detained under impermissible conditions at the time the motion was filed, the court explained.

The court further differentiated this case from Frisch, asserting the plaintiff class – unlike the ex-wife – has not lost other legal remedies.

“For instance, the plaintiff class may be able to seek damages under 42 U.S.C. § 1983,” the court said. “With adequate proof, individual plaintiffs may be able to recover damages in personal injury suits. The County’s contempt of court cannot be said to have deprived the plaintiff class of its ‘traditional remedies in the law,’ and consequently, we cannot say the County’s contempt is continuing on that basis.”

A sanction without explicit reference to ‘continuing’

Lastly, the court rejected the plaintiffs’ argument that “continuing” contempt was not an express prerequisite for a court to order the county to pay damages under § 785.04 (1) (a).

Unlike the other four sanctions listed alongside it, § 785.04 (1) (a) does not include “continuing” or any other word with the connotation of an ongoing contempt. Indeed, the provision casts the contempt in the past tense (“Payment of a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of a contempt of court.”)

The court acknowledged that this provision, “if read in isolation, could be somewhat ambiguous on this score. Standing alone, the paragraph could be interpreted as allowing payment of a sum of money for a loss or injury suffered in the past.”

But the court said that such an interpretation would defy the entire premise of a “remedial sanction” which is to stop “a continuing contempt of court.”

Inviting repeat violations?

Writing in dissent, Chief Justice Shirley Abrahamson – joined by Justices Ann Walsh Bradley and N. Patrick Crooks – questioned how the majority deters another round of intentional violations if sanctions can be avoided merely by ceasing before a motion for contempt is filed.

In a footnote to its opinion, the majority responded that “repeated violations of a court order after a finding of contempt may constitute a continuing contempt, and the circuit court has statutory authority to issue an ‘order designed to ensure compliance with a prior order of the court.’”

But Abrahamson doubted a circuit court could make such an order because it would derive from the same statutory authority that the majority has now declared exists only to end “continuing contempt of court” and a disobedient party would take care to be in compliance beforehand.

Disputed statutory interpretation

Abrahamson challenged the majority’s reading of § 785.04 (1) (a), arguing it “explicitly authorizes payment of money to compensate a victim ‘for a loss or injury suffered by the party as the result of a contempt of court.’

“The word ‘suffered’ makes sense only if Wis. Stat. § 785.04 (1) (a) applies to payment for losses or injuries that already have occurred and that resulted from past conduct,” she wrote.

But if “continuing” is the controlling concept, Abrahamson said the court is applying it in defiance of its dictionary meaning.

“In ordinary, plain English, the County’s contempt was continuing for almost three years,” she wrote. “Why therefore does this case not present a case of continuing contempt? Where in the statute does it say that the contempt has to continue after the motion for contempt has been filed? Ah, says the majority opinion, by statutory definition (Wis. Stat. § 785.01(3) ) the remedial sanction has to ‘terminate a continuing contempt,’ and here the County ‘terminated’ its own continuing contempt by obeying the court order.”

Abrahamson said “continuing” contempt is better understood as one that has not terminated so long as the injury to the victim has not been compensated. In furtherance of this meaning, Abrahamson reported that the Legislature did not intend to discard the compensatory purpose of contempt sanctions when it revised the statute in 1979.

Frischis an apt analogy?

The harm incurred in this case is comparable to that in Frisch, Abrahamson said.

Just as the ex-husband could not put his ex-wife in the same position she would have enjoyed if he had made a timely disclosure of the tax information, “[t]he County could not and did not turn back time when it implemented the 30-hour rule too late to benefit the many inmates who spent more than 30 hours in the county jail without a bed, contrary to the consent decree,” she wrote.

Abrahamson rejected the majority’s assertion that this case is different from Frisch because the inmates, unlike the ex-wife, still have alternative remedies at law. Abrahamson noted, Frisch never held “that all other potential avenues of relief must be exhausted before contempt sanctions are used.” Such a requirement is not in the contempt statute either, Abrahamson added.

Circuit court has inherent authority

If the majority’s statutory interpretation is correct, the law affords no remedy for intentional violations of a court order spanning nearly three years so long as they cease before a motion for contempt sanctions is filed, Abrahamson said.

“Thus there is a void in the statute relating to a circuit court’s power to protect enforcement of its orders,” she said. “Under such circumstances, the circuit court may use its inherent power to fill the void in the contempt statutes.”

Abrahamson said a court’s contempt power “exists independently of and outside the statutes.” The Legislature may set out procedures and penalties for contempt “so long as the statute does not render the court’s power impotent or meaningless.” Unreasonable burdens or substantial interference with the contempt power violates the separation of powers, Abrahamson said.

“A court has an ‘inherent power to protect its own decrees and the private rights attendant on those decrees,” Abrahamson wrote. “Intentional defiance of a court’s judgment or order cannot be condoned.”

Claims for emotional distress

The majority concluded its review by finding that the plaintiffs could not recover for emotional distress on violations of the consent decree as breach of contract. In addition to the circuit court’s observations that such damages were not contemplated by the consent decree, the justices said these claims are properly brought in a tort action.