From: Black Unicorn <unicorn@schloss.li>
Date: Tue, 16 Apr 1996 13:12:55 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: What can the judge do to me?
In-Reply-To: <m0u8wb7-0008zLC@pacifier.com>
Message-ID: <Pine.SUN.3.91.960415190758.342B-100000@polaris.mindport.net>
MIME-Version: 1.0
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On Mon, 15 Apr 1996, jim bell wrote:

> At 10:21 AM 4/15/96 -0700, Hal wrote:
> >From: Black Unicorn <unicorn@schloss.li>

[...]

> >I didn't understand what distinguishes civil and criminal sanctions.  Is
> >it the nature of the proceedings, whether it is a civil or criminal case
> >that is before the judge?  Or is it the nature of the contempt charge
> >itself, where not doing what the judge wants, in broad terms, is civil
> >contempt?  And in that case, what would be criminal contempt?
> 
> He may answer those questions, but I don't think he'll dare answer the 
> question about if there is a constituional justification for a difference 
> between "civil" and "criminal" in most things the government's courts do.

Mr. Bell amuses me because he can never decide if he's a constitutional 
formalist, as above (all things the government does must be explicitly 
justified in the constitution) or a pragmatist, as when he is defending 
his murderous proposals (we can ignore the due process clause of the 
constitution and order assassinations anonymously because due process 
rights are vaguely defined in the constitution and we should look to the 
concepts of other nations in quashing the U.S. version).

> My impression is that the "civil" classification is often simply used to 
> dilute or eliminate the various constitutional protections that the 
> government hasn't yet dared to remove from areas it calls "criminal."

I will discuss the rationale the courts use in making the distinction, and 
discuss the constitutional issues briefly, as I did before.  Mr. Bell 
will, as always, impute some express or implied approval of some policy 
that appears nowhere in my writings.


(a) A criminal contempt fine is punitive and can be imposed only through
criminal proceedings, including the right to jury trial. A contempt fine is
considered civil and remedial if it either coerces a defendant into 
compliance with a court order or compensates the complainant for losses 
sustained. United States v. United Mine Workers of America, 330 U.S. 258, 
303-304, 91 L. Ed. 884, 67 S. Ct. 677. Where a fine is not compensatory, 
it is civil only if the contemnor has an opportunity to purge, such as 
with per diem fines and fixed, suspended fines.  Id.

(b) Most contempt sanctions share punitive and coercive characteristics, and
the fundamental question underlying the distinction between civil and
criminal contempts is what process is due for the imposition of any 
particular contempt sanction.  Direct contempts can be penalized summarily 
in light of the court's substantial interest in maintaining order and 
because the need for extensive factfinding and the likelihood of an 
erroneous deprivation are reduced.  Greater procedural protections are 
afforded for sanctions of indirect contempts.  Certain indirect contempts 
are particularly appropriate for imposition through civil proceedings, 
including contempts impeding the court's ability to adjudicate the 
proceedings before it and those contempts involving discrete, readily 
ascertainable acts.  For contempts of more complex injunctions,
however, criminal procedures may be required. Id.

Because civil contempt sanctions are viewed as nonpunitive and avoidable, 
fewer procedural protections for such sanctions have been required.
To the extent that such contempts take on a punitive character, however, 
and are not justified by other considerations central to the contempt 
power, criminal procedural protections may be in order.  International Union.

The justification for the contempt charges are on the 
proper administration of justice, to which every citizen is entitled.  
While I'm sure Mr. Bell would like it if he could just flip off a court, 
as with most self centered types, I don't think he has considered the 
ramifications of this kind of impunity in the aggregatre.

Mr. Bell claims this is a new tyrranical development.  Mr. Bell is incorrect.

Consider:

In re Nevitt, 117 Fed. 451 (1902) (upholding the contempt power of courts).
(94 years ago).

Ex parte Robinson, 86 U.S. 505, 19 Wall. 505, 510, 22 L. Ed. 205 (1874) 
(contempt authority is vital to the administration of justice).
(122 years ago).

Courts must be "vested with the power to impose silence, respect, and 
decorum, in their presence, and submission to their lawful mandates, and 
. . . to preserve themselves and their officers from the approach and 
insults of pollution." Anderson v. Dunn, 19 U.S. 204, 6 Wheat. 204, 227, 5
L. Ed. 242 (1821).
(175 years ago).

The contempt power is a power "necessary to the exercise of all
others." United States v. Hudson, 11 U.S. 32, 7 Cranch 32, 34, 3 L. Ed. 259
(1812).
(184 years ago).

One might also remember where the term "pressing the defendant for a 
plea" originated.  Contempt sanctions are nearly 500-600 years old and 
are a response to the need to effect compliance with orders and summons.

> Too bad we won't get a straight answer...

You mean an answer that argues semantics and devolves into your Yadda 
Yadda Yadda stuff.

> We also won't get a straight answer about the constitutional justification 
> for "contempt of court" penalties at all!  The Constitution defines the 
> powers of government; it does not restrict those of the people.

I suppose you don't think anyone need serve on juries?  Or appear before 
a court when summoned?  Or testify if its inconvenient?  Your absoluteism 
betrays a grave ignorance and sheltered view of the world.

> The idea 
> that a judge can punish someone, especially someone not present in court, is 
> bizarre.  It is even more odd when such punishment appears to exceed what 
> the government is allowed to do absent any kind of jury decision and 
> conviction.

Huh?  Ever hear of late filing fees?  Administrative fines?  Taxes?  How 
many examples do you want where government can impose costs on persons 
without a fully jury trial?  Even contracts are in the end enforced by 
government in the United States.
 
> If you're willing to accept NON-Constitutional "justifications," I'm sure 
> you'll get plenty of that.
> 
> The only hint of a Constitutional obligation to testify comes from an 
> amendment which states that defendants have a right to compel testimony 
> favorable to them; it does not say that prosecution has the right to compel 
> testimony from a third party that incriminates a defendant.

Look, Mr. Bell.  I don't know where you get this stuff, but you really 
need to take a few classes in jurisprudence.  You need to learn what life 
would really be like if the strict reading of the constitutional you urge 
was followed, and you need to transcend your political Yaddaing into a set 
of criteria which resemble something like earthbound possibilities.

> If his 
> response is, "Oh, but we've ALWAYS done it that way!", you need to remember 
> that until the American Civil war, slavery was legal in southern states, and 
> until 1920 women weren't allowed to vote, and until 1955 "separate but 
> equal" was the law of the land, until 1972 or so the death penalty was 
> constitutional...and then it wasn't...and then it was again...and so on.  
> Government is never willing to admit it's wrong until it's good and ready.

By 'wrong' you mean doesn't agree with you.  I'm sure precident and it's 
rationale means little to you.

> That doesn't mean we can't express our own opinions "prematurely."

Opinions are like rectums....

> I'd sure like to hear the "why" behind this stuff, but I won't...  Sigh.

Apply to law school.  The questions you are struggling with will be 
answered in your first year readings.  I'm hardly going to type in all of 
Ernst on property or Goldman on constitutional law for your benefit.  
Time to start doing your own homework.

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information
Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com