A. Civil Contempt
An action for civil contempt for failure to obey or perform an order of the court may be commenced as set forth in the applicable court rules by filing an affidavit showing that the order was served on the defendant or that the defendant had knowledge of the order and that the order was disobeyed, setting forth the facts constituting the disobedience.20 Court forms provide for an immediate attachment, which is in the nature of an arrest or capias, commanding the Sheriff to take the alleged contemnor into custody and bring him or her before the court to answer to the contempt.21 The historic practice for civil contempt was to permit immediate attachment only upon a showing of a failure to obey the command of process and for all civil contempts only after issuance and return of a rule to show cause why an attachment should not issue.22 The modern practice is to bring the alleged contemnor in by the issuance of a rule to show cause.23
The party seeking a finding of contempt has the burden of proving by clear and convincing evidence that a material and not merely technical violation of a court order has occurred.24 The prima facie case must be made through live testimony. Affidavits alone are inadequate.25 There is no right to trial by jury for civil contempt.26
B. Criminal Contempt
1. Direct Contempt
A person who commits an act of criminal contempt during the sitting of the court and in the judge’s immediate view and presence may, in the discretion of the court, be convicted and sentenced for such offense without further criminal proceedings during or immediately after the termination of the proceeding in which the act of contempt occurred.27 Where the individual performing the contumacious act is indigent and there is no emergency, such as conduct physically threatening to people and property in the courtroom, and no other exigency unduly interfering with trial proceedings, the better practice is for the court to afford the indigent party the opportunity for court-appointed counsel before making a determination of contempt.28 Where the punishment imposed exceeds six months, for example, where there are several acts of contempt for which a judge imposes consecutive terms of imprisonment, the alleged contemnor is entitled to trial by jury.29
The judge must certify that he or she saw or heard the conduct constituting the contempt and that it was committed in the judge’s presence and must include in the contempt order the facts constituting the contumacious conduct.30 This obligation to include in the contempt order the facts upon which the finding of contempt was made must be adhered to strictly.31
2. Indirect Contempt
A criminal action for indirect contempt, i.e., contempt committed outside the presence of the court, must be prosecuted on notice. The notice must state the time and place of the hearing, allowing a reasonable time for the preparation of a defense, and must state the essential facts constituting the criminal contempt charge and describing it as such. The notice may be given orally by the judge in open court or, upon application of the Attorney General or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. If arrested, the party is entitled to admission to bail as provided in the criminal rules.32
It has been held that there is no automatic right to trial by jury for criminal contempt.33 However, a party has a constitutional right to trial by jury for “serious” criminal contempt, i.e., where the punishment imposed exceeds six months.34 The courts that do not have jury trials are not divested of their inherent or statutory contempt jurisdiction, as long as the right to trial by jury is preserved. The procedure in these courts is to have a bench trial first, with the accused having the right to appeal the decision de novo to the Superior Court for a jury trial on the issue.34.1
A defendant charged with indirect criminal contempt has a due process right to obtain counsel and cross-examine witnesses.35 If the contempt charge involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant otherwise consents.36 The State has the burden of establishing guilt beyond a reasonable doubt.37
19. State ex rel. Oberly v. Atlas Sanitation Co., C.A. No. 9864, slip op. at 9-10, Allen C. (Del. Ch. Oct. 31, 1991).
20. Ch. Ct. R. 70(b); Super. Ct. Civ. R. 1(u); Fam. Ct. Civ. R. 70(b). Courts without a parallel rule presumably would follow a similar method. See Jones v. Anderson, 183 A.2d 177, 179 (Del. 1962).
21. Super. Ct. Civ. R. 1(u); V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 578 (1906).
22. V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 578 (1906).
23. See, e.g., State ex rel. Oberly v. Atlas Sanitation Co., C.A. No. 9864, slip op. at 1, Allen C. (Del. Ch. Oct. 31, 1991); Guajardo v. Toulson, C.A. No. 89M-SE-16, slip op. at 1, Taylor, J. (Jan. 23, 1990) (ORDER); State Dept. of Services for Children, Youth & Their Families v. Cedars Academy, C.A. No. 1399-5, slip op. at 1, Allen C. (Del. Ch. Oct. 30, 1989).
24. Thomas v. Thomas, 102 A.3d 1138, 1149 (Del. 2014); Aveta Inc. v. Bengoa, 986 A.2d 1166, 1182 (Del. Ch. 2009), app. dismissed mem., 991 A.2d 17 (Del. 2010); Watson v. Givens, 758 A.2d 510, 512 (Del. Fam. 1999); Dickerson v. Castle, C.A. No. 10256, slip op. at 7-8, Chandler, V.C. (Del. Ch. Mar. 2, 1993); State ex rel. Oberly v. Atlas Sanitation Co., C.A. No. 9864, slip op. at 6, Allen, C. (Del. Ch. Oct. 31, 1991). See also Division of Child Support Enforcement v. Logue, 598 A.2d 704, 705 (Del. Fam. 1991).
25. Ch. Ct. R. 70(b); Dickerson v. Castle, C.A. No. 10256, slip op. at 7, Chandler, V.C. (Del. Ch. Mar. 2, 1993).
26. Delaware State Bar Asso. v. Alexander, 386 A.2d 652, 665 (Del. 1978), cert. denied and appeal dismissed, 439 U.S. (1978), reh’g denied, 439 U.S. 973 (1978).
27. 11 Del. C. § 1272; Super. Ct. Cr. R. 42(a); Comm. Pls. Ct. Cr. R. 42(a); Fam. Ct. Cr. R. 42(a); Ald. & M. Ct. R. 32. See also In re Hillis, 858 A.2d 317, 321 (Del. 2004); Smith v. State, 560 A.2d 1004, 1008-1009 (Del. 1989).
28. Pitts v. State, 421 A.2d 901 (Del. 1980).
29. Codispoti v. Pennsylvania, 418 U.S. 506 (1974).
30. Super. Ct. Cr. R. 42(a); Comm. Pls. Ct. Cr. R. 42(a); Fam. Ct. Cr. R. 42(a).
31. In re Butler, 609 A.2d 1080, 1082.83 (Del. 1992).
32. Super. Ct. Cr. R. 42(b); Comm. Pls. Ct. Cr. R; 42(b); Fam. Ct. Cr. R. 42(b).
33. Claudio v. State, 585 A.2d 1278, 1297 n.50 (Del. 1991); Thomas v. State, 331 A.2d 147, 149 (Del. 1975).
34. Bloom v. Illinois, 391 U.S. 194 (1968); DiSabatino v. Salicete, 671 A.2d 1344, 1349 (Del. 1996); Thomas v. State, 331 A.2d 147, 150 (Del. 1975). A party may also have a right to trial by jury for criminal contempt, even if not “serious,” if such right is granted by statute. Super. Ct. Cr. R. 42(b). Currently, there is no such statute.
34.1. DiSabatino v. Salicete, 671 A.2d 1344, 1351-52 (Del. 1996).
35. McDavis v. Neal, 599 A.2d 756, 758 (Del. Super. 1991).
36. Super. Ct. Cr. R. 42(b); Comm. Pls. Ct. Cr, R. 42(b) Fam. Ct. Cr. R. 42(b).
37. Wilmington v. General Teamsters Local Union, 321 A.2d 123, 126 (Del. 1974); State v. Klein, 123 A.2d 740, 741 (Del. Ch. 1956), aff’d, 127 A.2d 84 (Del. 1956); State v. Nouris, 136 A. 887, 888 (Del. Ch. 1927); State v. Baker, 169 A. 598, 599 (Del. Ch. 1933); Jessup & Moore Paper Co. v. Ford, 44 A. 778, 779 (Del. Ch. 1895); State v. Marine, No. IK87-12-0847, slip op. at 9, Ridgely, J. (Del. Super. Apr. 21, 1989); Wisher v. State, Cr. A. No. N84-07-048FC, slip op. at 2, Gebelein, J. (Del. Super. Dec. 17, 1985) (ORDER).
© 2010 David L. Finger