United States District Court, Central District of Illinois, Springfield Division
July 1, 1987
ROBERT MCGUFFIN, PLAINTIFF,
SPRINGFIELD HOUSING AUTHORITY, ITS BOARD OF COMMISSIONERS, A MUNICIPAL CORPORATION; BRUCE STRATTON, PHINEAS HURST, IN THEIR CAPACITIES AS MEMBERS OF THE BOARD OF COMMISSIONERS OF THE SPRINGFIELD HOUSING AUTHORITY, DEFENDANTS.
The opinion of the court was delivered by: Mills, District Judge:
Violation of a Court order.
Court orders are to be complied with both in letter and spirit
— lack of scienter is beside the mark.
Robert McGuffin, former Executive Director of the Springfield
Housing Authority, instituted this lawsuit in May 1979 under
42 U.S.C. § 1983 against the municipal body and its governing board
to contest the termination of his employment as violative of
procedural due process.
The litigants subsequently settled the controversy in October
1979. The late Judge J. Waldo Ackerman entered an order under
which McGuffin agreed to resign in exchange for, among other
things, Defendants' promise to furnish a form letter to any
prospective employer of Plaintiff making inquiry:
The Springfield Housing Authority will answer all
employment inquiries made by prospective employers of
Robert McGuffin by a letter . . . attached
hereto. . . .
On April 19, 1985, Plaintiff filed a petition for a rule to
show cause why Defendants should not be adjudged in civil
contempt of the Court's lawful decree. Following a review of the
record, this tribunal on December 3, 1986, ordered the Defendants
to appear and answer McGuffin's charges. Argument ensued June 8,
McGuffin was one of the final candidates for the position of
Executive Director with the Chapel Hill, North Carolina, Housing
Authority in May 1983. According to the uncontroverted affidavits
of the personnel director for the town and members of the
agency's board of commissioners, the authority inquired by
telephone about the Plaintiff but failed to receive the
responsive letter from Defendants. Specifically, the personnel
director spoke unsuccessfully with both an administrative
assistant and a director, as well as the chairman, of the
Springfield commission. Because she did not receive a reference,
verbal or written, the director contacted a local newspaper and
obtained unfavorable articles regarding McGuffin. Needless to
say, McGuffin's efforts to secure employment in Chapel Hill fell
As a result of his former employer's inaction, Plaintiff claims
his prospects for receiving the position were substantially
diminished and his professional reputation harmed. He seeks
compensatory damages of $50,000, reimbursement of fees and costs,
and an order insuring future compliance.
Civil, as well as criminal, contempt proceedings arise under
18 U.S.C. § 401:
A court of the United States shall have power to
punish by fine or imprisonment, at its discretion,
such contempt of its authority, and none other,
as . . .
(3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command.
See Nelson v. Steiner, 279 F.2d 944
, 947 (7th Cir. 1960); KSM
Fastening Systems, Inc. v. H.A. Jones Co., 776 F.2d 1522
, 1525 n.
3 (Fed.Cir. 1985); In re Jaques, 761 F.2d 302
, 305 (6th Cir.
1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1259
, 89 L.Ed.2d 570
(1986); United States ex rel. Shell Oil Co. v. Barco Corp.,
430 F.2d 998
, 1000-01 (8th Cir. 1970); McDonald's Systems, Inc. v.
Mason, 552 F. Supp. 707
, 709 (N.D.Ill. 1982). Before a court may
invoke the statute, however, it must be able to cite a decree
which "sets forth in specific detail an unequivocal command"
violated by the party in contempt. Ferrell v. Pierce,
785 F.2d 1372
, 1378 (7th Cir. 1986), citing H.K. Porter Co. v. National
Friction Products, 568 F.2d 24
, 27 (7th Cir. 1977). Furthermore,
the accused must have notice of and opportunity to contest the
issue. Ferrell, 785 F.2d at 1383; American Fletcher Mortgage Co.
v. Bass, 688 F.2d 513
, 519 (7th Cir. 1982); Rogers v. Webster,
776 F.2d 607
, 611-12 (6th Cir. 1985).
Whether an action sounds of civil or criminal contempt depends
in large part on the character and purpose of the relief sought.
Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531,
1534, 16 L.Ed.2d 622 (1966); Shakman v. Democratic Org. of Cook
County, 533 F.2d 344, 348-49 (7th Cir.), cert. denied,
429 U.S. 858, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976). As § 401 indicates,
both proceedings allow a court the option of imposing
imprisonment and/or monetary fines. Nevertheless, the punishment
for criminal contempt is intended to be punitive so as to
vindicate the court's authority, while sanctions in a civil
setting are "employed for either or both of two purposes: to
coerce the defendant into compliance with the court's order,
[and] to compensate the complainant for losses sustained."
Shakman, 533 F.2d at 349, quoting, United States v. United Mine
Workers, 330 U.S. 258, 303-04, 67 S.Ct. 677, 701, 91 L.Ed. 884
(1947). Accord Commodity Futures Trading Comm'n v. Premex, Inc.,
655 F.2d 779, 785 (7th Cir. 1981); In re Magwood, 785 F.2d 1077,
1081 (D.C.Cir. 1986); Federal Election Comm'n v. Gus Savage for
Congress '82 Comm., 606 F. Supp. 541, 547 (N.D.Ill. 1985). Thus,
the thrust of the penalty assessed in the latter case is remedial
and may take the form of a fine in the amount of damages as well
as costs and fees incurred. Gompers v. Buck's Stove & Range Co.,
221 U.S. 418, 444, 447, 31 S.Ct. 492, 499, 500, 55 L.Ed. 9
(1911); Squillacote v. Meat & Allied Food Workers, 534 F.2d 735,
748 (7th Cir. 1976); Quinter v. Volkswagen, 676 F.2d 969, 975 (3d
Another difference between the two lies in the nature of their
respective proceedings. Civil contempt litigation continues as
part of the suit from which it arises and is governed by the same
procedural rules. No separate statutory action is needed. Skinner
v. White, 505 F.2d 685, 689 (5th Cir. 1974); McDonald's Systems,
552 F. Supp. at 709-10; 3 C. Wright, Federal Practice & Procedure
§ 705 (1982). In contrast, a criminal contempt charge is brought
in the name of the United States and governed by the due process
requirements enumerated in Fed.R.Crim.P. 42. Bray v. United
States, 423 U.S. 73, 75-76, 96 S.Ct. 307, 309-10, 46 L.Ed.2d 215
(1975); In re Jafree, 741 F.2d 133 (7th Cir. 1984); Schleper v.
Ford Motor Co., 585 F.2d 1367, 1371 (8th Cir. 1978); United
States v. Rizzo, 539 F.2d 458, 463 (5th Cir. 1976). But see
United States v. Powers, 629 F.2d 619, 624 (9th Cir. 1980)
(procedural safeguards of Fed.R.Crim.P. 42 apply equally to civil
Civil contempt proceedings are generally summary in character.
11 C. Wright & A. Miller, Federal Practice & Procedure §
2960 (1973). Nevertheless, findings of fact and conclusions of law are
appropriate, and indeed encouraged on contempt motions. Jewel Tea
Co. v. Kraus, 204 F.2d 549, 550 (7th Cir. 1953); Bergen v.
Bergen, 439 F.2d 1008, 1013-14 (3d Cir. 1971). Federal courts
acknowledge that the procedures involved are similar to those in
a tort action: "Much like a tort action, the complainant must
prove that the defendant's actions in violation of the court
order caused him injury." Thompson v. Cleland,
782 F.2d 719, 722 (7th Cir. 1986). Accord Parker v. United
States, 153 F.2d 66, 70 (1st Cir. 1946) (establishing analogy to
tort). The Court, then, is not free to exercise its discretion
and withhold an order in civil contempt awarding damages, to the
extent proven, but it does retain broad discretion in fashioning
an equitable remedy to insure future compliance. Thompson, 782
F.2d at 722; Vuitton v. Carousel Handbags, 592 F.2d 126, 130 (2d
Consistent with the tort analogy, the Supreme Court has
likewise determined that the absence of wilfulness should not
bear upon the outcome of a civil contempt hearing:
Since the purpose is remedial, it matters not with
what intent the defendant did the prohibited. The
decree was not fashioned so as to grant or withhold
its benefits dependent on the state of mind of
respondents. It laid on them a duty to obey specified
provisions of [the court's order]. An act does not
cease to be a violation of a law and of a decree
merely because it may have been done innocently. The
force and vitality of judicial decrees derive from
more robust sanctions.
McComb v. Jacksonville Paper Co., 336 U.S. 187
, 191, 69 S.Ct.
497, 499, 93 L.Ed. 599 (1949). In other words, "good intentions
cannot sterilize conduct otherwise contemptuous." Commodity
Futures, 655 F.2d at 784. Accord Dunlap v. City of Chicago,
435 F. Supp. 1295, 1300 n. 5 (N.D.Ill. 1977).
Still, two important differences from the garden variety tort
suit should be noted. First, Plaintiff must prove a violation of
the decree by clear and convincing evidence; a bare preponderance
will not suffice. United States v. Huebner, 752 F.2d 1235, 1241
(7th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 62, 88 L.Ed.2d
50 (1985); In re Weiss, 703 F.2d 653, 662 (2d Cir. 1983);
Stringfellow v. Haines, 309 F.2d 910, 912 (2d Cir. 1962) (per
Friendly, J.). Although apparently no court has addressed the
issue, this increased burden, however, appears inapplicable to
the question of damages. Cf. Mineworkers, 330 U.S. at 304, 67
S.Ct. at 677, 91 L.Ed. at 884 (fine must be based upon evidence
of complainant's actual loss); Leman v. Krentler-Arnold Hinge
Last Co., 284 U.S. 448, 455-56, 52 S.Ct. 238, 241, 76 L.Ed. 389
(1932); In re Kave, 760 F.2d 343, 351 (1st Cir. 1985). Second, no
right to a jury exists in civil contempt proceedings. Shillitani,
384 U.S. at 365, 371, 86 S.Ct. at 1531, 1536, 16 L.Ed.2d at 622;
In re Grand Jury Investigation, 600 F.2d 420, 423 n. 7 (3d Cir.
1979); Warehouse, Mail Order, Office, Technical & Professional
Employees v. Columbia Rustproof, Inc., 550 F. Supp. 73, 74 n. 3
With the above review in mind, a discussion of the present
controversy is now in order.
Defendants do not dispute their alleged failure to send the
responsive letter concerning Plaintiff to the Chapel Hill Housing
Authority. Rather, they assert that although no letter was
mailed, McGuffin's position is nevertheless without merit.
Initially, the Housing Board contends the consent decree was
not violated since the prospective employer did not specifically
request a letter of recommendation. This argument rings hollow.
Judge Ackerman's order in no way indicates that a specific
request was necessary: "The Springfield Housing Authority will
answer all inquiries . . . by a letter. . . ." (emphasis added).
This language demonstrates neither the Court nor the parties
intended a demand as a condition precedent to Defendants' duty
under the agreement. Simply stated, the approved settlement sets
forth an "unequivocal command" which the Defendants overlooked.
Ferrell, 785 F.2d at 1378. The Chapel Hill authority made inquiry
without receiving the proper response. The local agency's
admitted failure to comply with the settlement terms, albeit
unwilful, manifests clear and convincing evidence of its
Defendants next attempt to create an ambiguity in the decree by
referring to the unincorporated form letter attached to the order
which states: "I am in receipt of your letter . . . regarding
application for employment. . . ." They maintain this language
reflects an intent that the response was to be delivered only
after written inquiry. Since the prospective employer phoned the
Defendants, the latter had no duty to reply. Such reasoning,
however, is unpersuasive. The Court reads the letter in light of
the order's clear directive — not vice versa. The decree's
unambiguous instruction applies to "all inquiries." McGuffin
should not be penalized merely because the parties in drafting
the response failed to consider alternative modes of
Citing United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548,
75 L.Ed.2d 521 (1983), Respondents further maintain that because
McGuffin himself eventually sent a copy of the letter of
recommendation and nothing they could do at this time would
affect the prior employment decision of Chapel Hill, the issue is
moot. This argument, like the first, will not fly. Rylander is
inapplicable to the case at bar. First, that decision in no way
addressed the possible compensatory aspect of a contempt finding
previously discussed. Rather, the case speaks only to its
coercive component. Rylander stands for the proposition that
where compliance with a court order demanding a single act
(production of documents under an IRS summons) is impossible,
neither the moving party nor the court has any reason to proceed
with a civil contempt action to coerce compliance. Id. at 757,
103 S.Ct. at 1548, 75 L.Ed.2d at 521. Accord United States ex
rel. Thom v. Jenkins, 760 F.2d 736 (7th Cir. 1985).
Admittedly, delivering the responsive letter to the North
Carolina Housing Authority would now be useless. Nevertheless,
Defendants have not alleged that they would be unable to comply
with the consent decree if further inquiries by prospective
employers of McGuffin were made. Thus, the issue is not moot, but
has continuing life. The Housing Board's legal duty under the
settlement does not end with the first inquiry. Unlike Rylander
where one act would have satisfied the Defendant's obligation,
the Housing Board is faced with a continuing duty to answer "all
Finally, the Board insists Plaintiff's claim is barred by the
equitable doctrine of laches — inexcusable delay in bringing a
claim which operates to prejudice the Defendant. Citation Cycle
Co. v. Yorke, 693 F.2d 691, 695 (7th Cir. 1982). This assertion
also must fall. The alleged violation of the decree occurred in
May 1983. McGuffin filed his petition for a rule to show cause in
April 1985, less than two years after the offense. Since civil
contempt actions are analogous to tort suits, it seems logical to
compare the statute of limitations for a negligence claim with
Plaintiff's delay. In Illinois, a party has two years from the
date of injury in which to bring an action. Ill.Rev.Stat. ch.
110, ¶ 13-202 (1985). Here, Plaintiff brought his motion within
that time period. Thus, no inexcusable delay is apparent.
Even assuming, however, that McGuffin's delay is inexcusable,
Defendants must still show prejudice to prevail. Laches is not
based merely upon time, but also upon changes in conditions or
relationships involved with the claim. Lingenfelter v. Keystone
Consol. Indus., 691 F.2d 339, 340 (7th Cir. 1982). In this
instance, Respondents assert they will suffer severe prejudice if
this proceeding is not dismissed since Plaintiff could have
resolved the problem by asking his former employer to send the
letter at the time of his application in Chapel Hill. But this
argument suggests that McGuffin had a duty to perform both sides
of the settlement. Such argument is without foundation. The
consent decree imposed an obligation upon the Board which it
failed to fulfill. In short, Defendants can show no prejudice.
In sum, this Court must hold the Springfield Housing Authority
and members of its governing board in civil contempt for
violating the consent decree. Indeed, their inaction was
unwilful. Any punitive measure is thus unwarranted. Nevertheless,
the Defendants did fail to abide by the clear, strict terms of
Judge Ackerman's order. Their lack of intent to harm McGuffin is
irrelevant. McComb, 336 U.S. at 191, 69 S.Ct. at 497, 93 L.Ed. at
599. The teaching of the Seventh Circuit is appropriate
here: "The district court may find a defendant in civil contempt
if [it] has not been `reasonably diligent and energetic in
attempting to accomplish what was ordered.'" American Fletcher,
688 F.2d at 517, quoting, Powell v. Ward, 643 F.2d 924, 931 (2d
Cir.), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111
Ergo, Plaintiff's motion for an order adjudging Defendants in
civil contempt is ALLOWED.
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