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Bar Journal - Fall 2007

Civil and Criminal Contempt in New Hampshire


“0, it is excellent, to have a giant’s strength; but it is tyrannous to use it like a giant.”1

I.  Introduction

Criminal versus civil contempt, direct versus indirect contempt and all of the procedural concerns are the subject of this article.  It expands upon and updates an earlier article by the lead author that was published in this journal 32 years ago.2


II.  History of Contempt

The New Hampshire Supreme Court has long recognized contempt powers as inherent in the New Hampshire judiciary.  In 1851 in Tenney’s Case, it was held that “anything done. . . for the purpose of obstructing justice. . . may be punished as a contempt of the court before whom the proceedings are had.”3  Further:


“It is said by Blackstone, that the process of an attachment for a contempt, must necessarily be as ancient as the laws themselves.  For laws without a competent authority to secure their administration from disobedience and contempt, must be vain and nugatory.”4 


In 1861 the Supreme Court said that “contempt is an offense at common law – a specific and substantive offense” that is separate and distinct from the matter in litigation out of which the contempt arose.5  It “belongs to the court before which it is committed to punish it.”6 


“The contempt power generally is exercised: to maintain order and decorum in court proceedings; to punish for disrespect shown the court or its orders; to enforce the court’s writs and orders; and to punish acts which obstruct the administration of justice.”7


The courts in this state have “the duty and responsibility to be alert to protect the judicial processes from being brought into disrepute” and must “act vigorously” to address acts or conduct which tend to obstruct or interfere with justice.8  Thus, the power to punish for contempt is an essential attribute of the superior court as a court of general jurisdiction.9  By a three to two decision the Supreme Court in State v. Moquin, upheld a finding of guilty based on an indirect contempt in the then Manchester Municipal Court.10  In Benton v. Dover District Court, the Court unanimously affirmed a contempt finding by a district court based upon a direct contempt but reduced the sentence of six-months’ confinement.11  That district courts could find someone in contempt was affirmed by citing Moquin, supra, and RSA § 502-A:34.12


Criminal contempt is not founded upon the Criminal Code, and, in fact, if the legislature sought to sharply limit the fine or confinement authority of a court there would be a serious question of such provision’s constitutionality.  In Opinion of the Justices, the question was raised as to whether a pending bill would violate the constitution of New Hampshire by limiting punishment for indirect contempt to a maximum of 15-days’ imprisonment and a $100 fine.13  Citing the separation of the three essential branches of government under Part I, Article 37, the Court concluded that contempt was a power inherent in the judicial branch:


“It may not be entirely clear whether the legislature can regulate the exercise of this power, beyond the limit of reasonable sentence of the offender, which is implicit in existing law. If there is such power, it is manifest that it does not extend to fixing a limit which in many cases would not provide for more than a nominal sentence.”14 


Contempt powers do not lie exclusively with the judiciary. The New Hampshire Constitution does not explicitly give the judiciary the power to penalize contempt, yet in Part II, Article 22, it gives the House of Representatives “authority to punish, by imprisonment, every person who shall be guilty of . . . any disorderly and contemptuous behavior....”15  In Groppi v. Leslie, 404 U.S. 496 (1972), the legislative contempt power was reaffirmed for states and the national government. 


In 2001, the New Hampshire Supreme Court reaffirmed that our courts “possess inherent authority to initiate contempt proceedings for disobedience to their orders.”16  The court relied on Young v. United States, 481 U.S. 787, 793 (1987), a Supreme Court decision upholding the District Court’s authority to appoint private attorneys to prosecute federal contempt actions.17  The case was a modern affirmation of the common law principle that courts must be empowered to “preserve respect for the judicial system and its orders.”18  


III.   Modern Doctrine:  Town of Nottingham v. Cedar Waters, Inc.

Between 1976 and 2001, Robert A. Bonser was a fixture of the civil court system19 for his dispute with the town of Nottingham over maintaining several mobile homes on his 350-acre nudist colony.20  The town’s zoning ordinances required that mobile homes be located on individual parcels of land, and placed upon “a continuous permanent foundation of concrete or any other masonry wall.”21  Bonser, who had at least six mobile homes on his property, refused to comply with the ordinances, either by subdividing his property or applying for permits from the town.22  A self-professed “constitutional revivalist,”23 he was convinced that the superior court’s authority to fine him was illegitimate, because he did not receive a jury trial on his zoning law dispute.24  As a result, Bonser was often jailed and fined for contempt.  At one point he faced more than $27,000 in fines and, when he refused to pay, spent 116 days in jail.25  Bonser described himself as a “political prisoner… being held for ransom.”26  


Though the “whole fabric of zoning and planning laws”27  never unraveled because of Robert Bonser, he was ultimately successful in accumulating over $183,850 in fines (reduced from nearly $1.5 million) and owing $122,364.98 in attorneys’ fees to the town.28  While he never accomplished his goal of establishing a right to a jury trial for violation of a zoning ordinance, he was indispensable in helping to shape the law of contempt in New Hampshire. 


In the first of several such cases, Town of Nottingham v. Cedar Waters, Inc., a 1978 case, the town sought to enjoin the Cedar Waters Corporation, with Bonser as the principal stockholder, from “maintaining a mobile home in the town without having it placed upon a ‘continuous permanent foundation of concrete or other masonry wall’ as was required by the zoning ordinances then in effect.”29  The injunction was granted, and the defendant was ordered to “comply with the zoning ordinance or remove the mobile home within 30 days.”30  When the defendant failed to remove the mobile home within the allotted time, the court held it in contempt, ordered the corporation to pay attorneys’ fees, and imposed a fine of $50 a day for each day of noncompliance.31 


A month later, the town requested a capias hearing, wherein it was claimed that the defendant corporation had not paid the fines and attorneys’ fees as required by the order.32  The court sentenced Bonser to five months in jail, “without notifying either him or the defendant that it was considering the matter to be criminal contempt.”33  A capias is an ancient common law order to a sheriff or police officer to literally bring the person before the court to have them show cause why they should not be held in contempt and jailed.


On appeal, the New Hampshire Supreme Court ruled that the trial court impermissibly “converted a civil into a criminal contempt without following the proper procedural steps.”34  Writing for a unanimous court, Justice Douglas  [this author, in a previous position] held that contempt is “an offense at common law,” which is “separate and distinct from the matter in litigation out of which the contempt arose.”35  Civil and criminal contempt are distinguished by “[t]he character and purpose of the punishment.”36  “In civil contempt, the punishment is remedial, coercive, and for the benefit of the complainant.”37  In criminal contempt, the purpose is to “protect the authority and vindicate the dignity of the court.”38 


The Court also distinguished direct from indirect contempt: 

“A direct contempt is one committed in the presence of the court and in its immediate view, all elements of the contempt being clearly observable by the court… Indirect contempt is one committed outside the presence of the court and without the judge having full personal knowledge of every element of the contempt.  Establishment of the contempt thus depends upon proof of facts of which the court could not take judicial notice… The significance of the distinction between direct and indirect contempt lies in the procedural requirements to which the court must adhere.”39 


The decision in Cedar Waters consolidated much of the available New Hampshire jurisprudence on the issue, as well as caselaw from various federal courts and the United States Supreme Court.  With the exception of some recent modifications, it has remained good law to this day, and is still the basic framework for civil and criminal contempt in New Hampshire.


IV.  Civil vs. Criminal Contempt

In civil contempt, such as in cases of nonsupport, a jail sentence can be imposed without making the action punitive, as opposed to remedial.  Thus, if the party complies or purges himself of the contempt he must be immediately released.  The defendant, in effect, “carries the key to the jail in his pocket,” but before he is confined the court should find that the defendant was in fact able to comply with the support or other civil order:

“[C]onfinement should not be directed to compel a party to do something which he is wholly unable to do, but the burden of proving inability should be on the defendant, who should not be held to have sustained it when he has failed to make a good-faith effort to conform.”40


In Noddin v. Noddin, the New Hampshire Supreme Court held a self-imposed diminution in earning capacity, the result of criminal conduct, was not a valid reason for reducing a child support order.41  In In re Rossimo, the Court disagreed, distinguishing changes in pre-divorce circumstances from post-divorce changes.42  Thus, “Noddin does not apply where the reduced financial condition occasioned by a party’s alleged wrongdoing occurred before [the court order].”43  However, where the reduced financial condition occurs after a court order has been given, at which point the defendant would face contempt charges for not complying with the order, the court may consider the difference between the defendant’s current income and his income prior to the voluntary underemployment.44  Taking notice of the defendant’s changed circumstance was seen as fitting comfortably within the trial court’s “broad discretion in reviewing and modifying child support orders.”  Furthermore, a court’s authority to confine a defendant, in order to coerce his payment, is not limited to child support orders.45


In contrast to civil contempt, the criminal defendant does not carry the key to the jail in his pocket:

“The criminal contempt defendant may be imprisoned for a determinate amount of time without the ability to purge the sentence because incarceration is punitive and not for the purpose of compelling the defendant to comply with a court order.”46


Criminal contempt defendants can be fined for a single act of contempt.  However, confinement can occur for non-payment of a fine, or in lieu of a fine altogether.47  As with most crimes for which one’s liberty may be deprived, criminal contempt requires a showing of specific intent.  If a “valid order existed, of which the defendant had knowledge, and… the defendant intentionally failed to comply with the order” the intent element will be proved.48 


In State v. Wallace, the defendant was held in contempt by a superior court judge for failure to comply with an order to pay child support.49  Instead of keeping the defendant in custody until he complied with the order, the court sentenced him to three successive weekends in the house of corrections.50  On appeal, Wallace argued that because his prison sentence was determinate, he was actually being punished criminally rather than civilly, and the state was thus required to prove all elements of the crime beyond a reasonable doubt, including his ability to comply with the underlying support order.51  The New Hampshire Supreme Court held that “inability to comply with the court’s order, whether in civil or criminal contempt proceedings, is a defense, and therefore should be raised by the defendant.”52  However, when asserted in a criminal contempt proceeding, the defense shifts the burden to the state to prove beyond a reasonable doubt that the defendant was able to comply with the order and intentionally abstained from doing so.53 


In civil contempt proceedings, asserting an inability defense does not trigger the same “federal constitutional protections” as in criminal contempt proceedings.54  The burden does not shift to the state to prove willful non-compliance beyond a reasonable doubt.  Rather, the defendant bears the burden of proving, by a preponderance, that he was unable to comply with the order.55


A challenge confronting judges in applying the law of contempt is to avoid “[turning] the remedial sentence for civil contempt into additional punishment for an offense to the public interest.”56  “A civil contempt proceeding is wholly remedial, to serve only the purposes of the complainant, not to deter offenses against the public or to vindicate the authority of the court.”57  Judges are not immune from “confusing offenses to their sensibilities with obstruction to the administration of justice” and even a well-intentioned attempt to compel a party to comply with a court order can convert a proceeding for civil contempt into criminal contempt, if the purpose is to punish.58  Since the line between civil and criminal contempt lies in the purpose of the punishment, defendants are likely to argue that civil proceedings are pretexts for imposing criminal sanctions.  Such arguments will be unsuccessful, however, where the defendant can avoid punishment simply by complying with the court’s order.


In Cedar Waters, the superior court “converted a civil into a criminal contempt without following the proper procedural steps” when it sentenced Robert Bonser to five months imprisonment for contempt.59  Six years later, when the town sued Mr. Bonser for violating “various town planning board and zoning ordinance requirements,” Mr. Bonser again found himself in contempt.60  This time, however, the superior court properly structured Mr. Bonser’s punishment by restricting it to a fine, or if he would not pay, to an “an indeterminate jail sentence until the contemnor complies with the court order.”61 


When Bonser inevitably refused to pay the judgment for contempt, Justice Douglas, serving a one-week special assignment on the superior court, ordered him “committed to the Rockingham County House of Correction until purged of contempt.”62  The order provided:

“[D]efendant should on a monthly basis be brought before the trial court to be asked if he will and can comply with the outstanding court orders. Failing or refusing to do so he shall be returned to confinement. This being civil contempt (and not in any way criminal in nature) the defendant still holds the keys to the jail in his pocket.”63 


Bonser subsequently filed a petition for habeas corpus, which was denied.64  Having respected the distinction between civil and criminal contempt, the New Hampshire Supreme Court upheld the denial, and Bonser spent 116 days in jail.65


Another problem in distinguishing civil from criminal contempt arises when the court neglects to inform the defendant, by notice of time and place, that the proceeding will be criminal in nature.  In Mortgage Specialists, Inc. v. Davey, the plaintiffs filed a trade secret complaint against two former employees.66  When the defendants thwarted the preliminary injunction and discovery order by destroying documents, plaintiffs sought a default judgment, as well as contempt and various sanctions.67  Believing that the defendants had “[thumbed] their noses at [the trial] court’s authority and the integrity of the process,” the trial court imposed sanctions “because the defendants’ actions jeopardize and undermine the integrity of the legal process.”68  The trial court held the defendants in contempt, fined them, awarded attorneys’ fees, and required them to pay a penalty of three times the gross profit obtained unjustly.69 


The New Hampshire Supreme Court vacated the sanctions related to fines and contempt, because “[neither plaintiffs] nor the trial court ever described the claims against the defendants as charges of criminal contempt.”70  The defendants therefore “did not have sufficient notice of the actual nature of the proceedings prior to the trial court’s order imposing sanctions.”71  Where a proceeding may result in a definite period of deprivation of liberty, a court is obligated to inform the defendant that the proceeding is criminal in nature. 


V.  Direct vs. Indirect Contempt

Direct contempt “is that committed in, or in close proximity to, the court so that the judge knows the facts from his personal observations.”72  Direct contempt may be affirmative, such as assaulting a witness during a trial, or it may be negative, such as refusing to sit down when ordered.  Indirect contempt may be defined as “all contempt not direct,” but a more helpful definition is that it arises from matters which do not transpire in court but which go to degrade or make impotent the authority of the court or to impede or embarrass the administration of justice.73  An indirect contempt must be proven before a court or jury.  Direct or indirect contempt may arise out of civil or criminal proceedings and may be punished by either a civil or criminal contempt proceeding depending largely on whether the court or a party is the movant.  Direct contempt may be dealt with by a judge in a summary manner while indirect contempt requires notice, a hearing and proof.


One of the classic examples of direct contempt to reach the United States Supreme Court was Illinois v. Allen, in which contempt was pitted against an accused’s constitutional right to be present in the courtroom during his trial.74  Allen had been indicted for armed robbery but during his trial had refused court-appointed counsel so that he could conduct his own defense. Allen told the judge there would be no trial, tore a file and threw it to the floor, and threatened that the judge would be a corpse by lunchtime. The judge wisely had appointed stand-by counsel for the defendant and, after removing Allen from the courtroom, brought him in from time to time, promising the defendant he could remain if he conducted himself properly. 


The Supreme Court affirmed the state trial judge by pointing out that a defendant can be so disrespectful and contemptuous as to even lose his right to be present during all phases of his trial.  Binding and gagging was seen as a last resort when contempt would be of no aid to the court, as when a defendant sought to prevent any trial or faced such a long sentence for commission of a crime that a few months’ imprisonment for contempt tacked on to the sentence would be meaningless to him. One alternative approved of (in addition to removal from the courtroom) is to imprison the unruly defendant for “civil contempt and discontinue the trial until such time as the defendant promises to behave himself.”75


The contempt in Allen was direct, as was the contempt in Benton v. Dover District Court, where the judge heard and summarily dealt with a defendant’s statement: “You should have a kangaroo standing here, this is a kangaroo court.”76  In State v. Moquin, the conduct involved fraud on the court admitted after a sentencing.  The fraud was not committed in the courtroom or the judge’s presence, and was therefore indirect contempt.77 


The constitutionally mandated due process safeguards differ between direct and indirect contempt.  In Groppi v. Leslie, a priest had led a group of welfare protestors into the Wisconsin Assembly chamber where they prevented the assembly from conducting legislative business.78  Two days later the legislature cited Father Groppi for contempt and ordered him jailed for six months.  The Supreme Court noted that summary contempt had historically been limited to “cases in which it was clear that all of the elements of misconduct were personally observed by the judge.”79  The Court noted that in summary direct contempt the contemnor still must be provided the right of allocution to speak on his own behalf.80  In Groppi the contempt was set aside because, coming two days after the fact, the contemnor was denied his constitutional right of notice of the charges and the opportunity to be heard in his own defense.81  The Groppi decision is applicable to the states and is not limited to legislative contempt.82  Had the legislature acted summarily while Groppi was in the chamber, a different outcome would have resulted.  


The Iowa Supreme Court has ruled that when three youths assaulted a judge near his home with full knowledge that he was a judge, while the judge was discharging a duty to preserve the peace when he attempted to quiet the youths, their behavior constituted punishable contempt.  The judge had tried to quiet the youths at 11:30 at night and ordered them to stop throwing bottles and shouting or he’d see them in court the next day.  Their answer: “Let’s get the son of a bitch.”  Apparently then, direct contempt need only be in the judge’s presence, not just in a courtroom.83


Direct contempt can also be the failure to do what one should do if the failure to act disrupts, delays or otherwise affects the administration of justice.  In United States v. Wilson, respondents were summoned as witnesses for the prosecution in a robbery trial, and refused to testify. They were granted immunity from prosecution, and were then ordered to answer questions.84  Warned that their silence would result in findings of contempt, the witnesses nevertheless remained silent. The judge summarily held them in contempt and ordered them jailed for criminal contempt for six months.  The Supreme Court affirmed the trial court because the contumacious refusal to answer frustrated and disrupted an ongoing criminal trial, was intentional, and obstructed “the orderly administration of justice.”85


Direct contempts may be prosecuted summarily, if they are “committed in the presence of the court and in its immediate view,” but they must also “constitute a threat that immediately imperils the administration of justice.”86  Civil contempts do not typically require immediate disposition, and it is generally prudent to allow the affected party to bring the complaint first.  Additionally, the court’s decision to summarily hold a defendant in civil contempt would be a strong indication that the purpose was punitive rather than remedial, especially when the complaint could have been brought by another party.  In MacNeil v. United States, the First Circuit overruled a trial court’s civil contempt for failure to pay a corporate debt because the contempt citation and hearing was initiated by the trial judge on his own motion, and not by a party “primarily in interest.”87


VI.  Remedies

Sanctions for civil contempt ought to be remedial.88  Insofar as “the contemnor carries the ‘keys to the jail’ in his pocket” sanctions are forward-looking and coercive, with a view to impacting the defendant’s future conduct.89  The goal is to convince the defendant to comply with the court’s order.90  Generally, this is accomplished through “fines payable to the complainant or an indeterminate jail sentence.”91  Presumably, even when a court imposes a fine for civil contempt, the remedial nature of the sanction is still forward-looking – though the defendant cannot always get the money back, it is an attempt to coerce his future appreciation for the court’s orders.92


In contrast, determinate sanctions are usually indicative of criminal contempt.93  In limited circumstances, determinate sanctions (other than fines) may be imposed for civil contempt, such that the defendant cannot avoid the sanction simply by complying with the court’s order, but these cases are rare and their precedential value is tenuous. 


One example is In re Kosek, where the mother was held in contempt for violating the terms of a custody order requiring that she not schedule her children’s activities for days when the father had visitation rights.94  For violating the order, the trial court increased the father’s visitation rights by ten hours per month.95  On appeal, the mother argued that “since she does not ‘hold the keys to the jail,’ the punishment is not appropriate for a finding of civil contempt.”96  In upholding the sanction, the Supreme Court reasoned:


“While this phrasing is a hallmark of civil contempt sanctions, it is not absolute. For example, our case law does not require that the contemnor control the amount of a fine; a discrete fine is an appropriate remedy for civil contempt.”97 


According to the Supreme Court, the trial court’s authority to impose the sanction rested not only on its “inherent contempt power” but also on the authority “analogous to that granted by the legislature in RSA 458:17” (“Support and Custody of Children”, repealed 2005).98  The Court therefore had an independent basis, grounded in a legislative act, for imposing a determinate sanction in a civil case.  The Supreme Court also left in tact the trial court’s judgment “that increasing the respondent’s visitation time would compel the petitioner to obey its orders.”99  The sanction thus satisfied the remedial purpose condition as well. 


It is unclear, however, whether the court would uphold such a sanction in the absence of an analogous power provided by the legislature, or if a there were a viable, less restrictive alternative for compelling the defendant’s compliance (such as a fine or indeterminate jail sentence).  In Kosek, the Court believed the sanction was appropriate because it was “not unprecedented… for the trial court to fashion as its own remedy, through its inherent contempt power, a mere ten hour per month increase in custodial time.”100  In the absence of such a practice, or such an analogous power, it is likely the court would choose another remedy: either a fine or indeterminate imprisonment, until compliance could be coerced out of the defendant. 


VII.  Attorneys’ Fees

Attorneys’ fees are mandatory in any successful contempt action brought for violation of a court order under N.H. Rev. Stat. § 461-A (“Parental Rights and Responsibilities”) or N.H. Rev. Stat. § 458 (“Annulment, Divorce and Separation”).101  Other sanctions for the underlying controversy remain within the court’s discretion. 


VIII.  Fines

The court should “impose only that restraint necessary to accomplish the end desired.”102 Fines levied in civil contempt cases are compensatory and go to the moving party.  Criminal contempt fines go to the government as with any other criminal fine.  Based upon common law it is within the power of the superior court in a civil contempt to order the offending party (even the offending attorneys) to pay compensatory costs to the injured party.  In Tuttle v. Palmer, it was held that “[J]ustice may require. . . the assessment of counsel fees to be paid by the offending counsel to the other party.”103 The Tuttle rule could lead to thousands of dollars in compensatory fines against the party and attorney perpetrating a fraud or contempt on the court.


IX.  Private Party Prosecutions

In most criminal contempt actions, the court either rules summarily (direct contempt), or hears a motion for criminal contempt and prosecutes the case itself (indirect contempt).   In limited circumstances, however, it may be necessary to allow private parties to prosecute criminal contempt cases.  Where “the contempt charged involves disrespect to or criticism of a judge, that Judge is disqualified from presiding at the trial or hearing except with the defendant’s consent.”104  The court is therefore required to appoint a special prosecutor or someone from the county attorney’s office.


The court’s authority to appoint a prosecutor should be used with restraint “in accord with the notion that ‘only the least possible power adequate to the end proposed should be used in contempt cases.’”105  The most desirable appointee is a member of the executive branch, typically the county attorney.  However, “[i]n the unusual case in which a court believes that prosecution is necessary, even after the executive branch has declined to act, a court may appoint a private prosecutor.”106


In Rogowicz v. O’Connell, the plaintiff Rogowicz had filed a protective order against her former boyfriend, which he in turn violated.107  Rogowicz then filed for indirect criminal contempt with the Family Division.  The private party prosecution arose because “the county prosecutor apparently misconstrued the case as being ‘civil in nature,’ and declined to pursue it.”108  Left with no assistance from the state, Rogowicz turned to New Hampshire’s Legal Assistance Domestic Violence Project to assist her in prosecuting the contempt action.  The New Hampshire Supreme Court upheld the appointment of the special prosecutor.  Adopting the United States Supreme Court’s holding in Young v. United States,109 the Court reasoned that the power to appoint special prosecutors derives from the court’s “inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”110 


The special prosecutor’s duty is “to the public to achieve justice.”111  The attorney does not primarily owe a duty of loyalty to a client or the judge, but instead should be “as disinterested as a public prosecutor who undertakes [any criminal] prosecution.”112  When the underlying basis for criminal contempt is a civil claim, “counsel for a party that is the beneficiary of a court order may not be appointed as prosecutor in a [criminal] contempt action alleging a violation of that order.”113  Special prosecutors must strive to avoid “even the appearance of impropriety.”114


Civil contempt actions do not require special prosecutors.  The procedure for advancing a civil contempt claim is first to file a motion for contempt.  Thereafter:

“The court will schedule a show cause hearing and issue a notice to the defendant.  Failure to appear will result in the request for the issuance of a capias or bench warrant for arrest.  After arrest, a hearing generally will be scheduled as soon as possible, and bond will be required for release pending the hearing… At the show cause hearing level, counsel should (1) request that the court order the defendant to pay the amount due forthwith or stand committed, and (2) request that if a default occurs, a capias will issue at the call of counsel.”115


X.      Contempt vs. Disciplinary Proceedings

Significant penalties attach to contempt for attorneys.  Contempt is not simply a matter of being contemptible, but is a refusal to obey a court’s order, the same order that an attorney swears an oath to uphold as an officer of the court.116  A contempt may constitute grounds for disciplinary proceedings, but it does not follow that a cause for discipline would in all cases constitute a contempt.117  If an attorney is held in contempt, the Supreme Court is required by statute to review the conduct: 


“The supreme court shall inquire in a summary manner into any charges of… contempt of court against an attorney, and, upon satisfactory evidence of the attorney’s guilt, shall suspend such attorney from practice, or may remove the attorney from office.”118 


Cannon 3(D)(2) of the N.H. Code of Judicial Conduct provides, “A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action.”119  Pursuant to N.H. Supreme Court Rule 37, the “appropriate action” is to refer the matter to the court’s professional conduct committee.  Grounds for discipline are any “[acts] or omissions by an attorney individually or in concert with any other person or persons which violate the standards of professional responsibility… whether or not the act or omission occurred in the course of an attorney-client relationship.”120  This system of discipline is “predicated upon the assumption that the holder is fit to be entrusted with professional matters and to aid in the administration of justice as an attorney and as an officer of the court.”121 

The Supreme Court’s authority to discipline an attorney for misconduct is also an affirmative grant of authority to the lower courts to employ the contempt power:

“Nothing herein contained shall be construed to deny to any other court such powers as are necessary for that court to maintain control over proceedings conducted before it, such as the power of contempt.”


In New Jersey, in In re Isserman, an attorney was disbarred for his contemptuous courtroom conduct.123  In New York, an attorney who wrote an article describing appellate judges as “whores who became madams” was not subject to official censure for misconduct:

“Without more, isolated instances of disrespect for the law, judges and courts expressed by vulgar and insulting words or other incivility, uttered, written, or committed outside the precincts of a court are not subject to professional discipline.”124


The superior court is also explicitly empowered to use the contempt power by Superior Court Rule 95 and Superior Court Rule 204 (criminal contempt and civil contempt, respectively).  The district court, however, is not.  For “violation of any rule of court. . . the court may take such action as justice may require.”125  In defining “such action,” the rule only states that it “may include, without limitation, the imposition of monetary sanctions….”126  The rule thus omits reference to indeterminate jail sentences, which would suggest only a partial power.  However, the Supreme Court’s affirmative grant, as well as the inherent authority of courts to enforce their orders, fills in the gap.  Lower courts should have the same power of contempt as the Supreme Court. 


Rather than creating uniformity, the fact that every judge can do it, that it is widely recognized in society and on television, means that contempt is often unevenly applied, especially in the lower courts.  This is especially apparent with respect to the law imposing attorneys’ fees against the losing party in a contempt matter, a legislative mandate which has simply not been adhered to uniformly. 


A distinction should be made between disruption and disrespect.  This is especially so in the case of pro se divorce or criminal trials where emotions run high.  In In re Little, the defendant in a pro se criminal trial (pro se because the court had denied a continuance for him to obtain counsel) accused the judge of bias and prejudice and alleged that defendant was being made a “political prisoner.”127  The statements were made during final argument.  The judge then found the defendant summarily guilty of direct criminal contempt and ordered Little jailed for 30 days.  The United States Supreme Court reversed and pointed out that:


“Trial courts ... must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice ... [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”128


A different rule certainly does and should attach to an attorney’s conduct.  In the famous Vietnam war protestors’ “Chicago 7” trial, William Kunstler and others were ultimately found guilty of criminal contempt, although no sentence was imposed.129  In an earlier decision, the Seventh Circuit held that while an attorney “has no affirmative obligation to restrain his client under pain of the contempt sanction,” where he “encourages disruptive behavior ... he cannot find immunity from punishment....”130  The court left open whether the failure to restrain constitutes “breach of professional ethics.”131 


XI.  Another Judge

The rule in New Hampshire was hinted at but not decided in State v. Moquin, involving a fraud on the court.132  In his dissenting opinion, Justice Duncan reminded the bench that Part I, Article 35 of the constitution of New Hampshire provides for citizens “to be tried by judges as impartial as the lot of humanity will admit.”133  He said further:

“Due process of law in such a proceeding dictates that trial shall be before a tribunal free from bias. This suggests if it does not require that some judge other than the justice found to have been subjected to fraud should have conducted the proceedings.”134


The ABA Standards for Criminal Justice says that a contempt hearing and sentencing should be referred “to another judge whenever the presiding judge has any doubt about his or her ability to preside over the matter impartially, or if the presiding judge’s objectivity can reasonably be questioned.”135 


The classic case requiring a different judge is Mayberry v. Pennsylvania, involving a pro se kidnap case.136  Among other contributions to jurisprudence, the defendant called the trial judge a “dirty sonofabitch,” a “tyrannical old dog,” admonished the judge “to keep your mouth shut,” told him to “go to hell,” threatened to “blow your head off,” and summed it all up by asserting that the court “started all this bullshit in the beginning.”137  The courtroom was thus rendered somewhat less than a place of quiet dignity.  Rather than using the Illinois v. Allen exclusion procedure for disruptive criminal defendants, the judge sentenced Mayberry to 11 to 22 years for the contempts.138  The Supreme Court agreed that a judge “cannot be driven out of a case” and that “not every attack on a judge” disqualifies him from hearing his own criminal contempt citations.139  However, in this case (unlike State v. Moquin) a “judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy” and therefore due process requires a criminal contempt trial before another judge.140 


XII.  Trial by Jury

Part 1, Article 15 of the New Hampshire Constitution provides that no one may be imprisoned “but by the judgment of his peers, or the law of the land.”  This does not require trial by jury for the common law offense of criminal contempt.  Our constitution guarantees “the right of trial by jury in all cases where the right existed at common law in this state at the adoption of the constitution.”141  It was earlier held in State v. Matthews in a criminal contempt for violating an injunction, that there is no state constitutional right to a trial by jury.142


In Bloom v. Illinois however, the Supreme Court of the United States held that direct or indirect criminal contempt should be treated by the States like other crimes insofar as jury trials were concerned.143  Thus petty contempts (under six months) do not provide an accused the right to trial by jury.144  That decision does not require that civil contempts mandate a jury trial, as they are remedial in nature.  Again, the “[t]he character and purpose of the punishment” is what distinguishes civil from criminal contempt.145 


Three other jury trial cases are worth noting. In Codispoti v. Pennsylvania, the United States Supreme Court held that a judge may punish summarily direct criminal contempt if each event is dealt with as a discrete and separate matter with sentence imposed at the time, if sentences aggregate over six months under that situation it is permissible.146  However, if conviction and punishment are delayed until after the trial in chief is concluded and the sentences aggregate more than six months, then a jury trial is required.147  Jury trial is not required if the sentence is three years’ probation with a suspended sentence.  However, if probation is revoked, the confinement cannot exceed six months.148  If a judge or prosecutor announces in advance of a contempt trial that no sentences greater in the aggregate than six months will be imposed, a jury trial can be avoided.  In fact, an appellate court after the fact can reduce the sentence to six months and therefore cure any error in denying a jury trial.149 


XIII.  Right to Counsel

Part 1, Article 15 of the State constitution gives to every person held to answer for an “offense punishable by deprivation of liberty” the “right to counsel” at state expense if indigent.


The court must also affirmatively inform a contemnor of his right to counsel, though this would not be necessary in summary treatment of a direct criminal contempt.150  “Offense” applies to public and not private wrongs, and therefore does not mandate counsel in civil contempts.  Likewise, the federal right to counsel decision, Argersinger v. Hamlin, applies solely to criminal contempt.151  But in Duval v. Duval, based upon due process, our Court held that counsel may be appointed in “complicated” civil contempts for nonsupport.152


XIV.  Procedural Matters

Under N.H. Rev. Stat. Ann. 491:19 and 491:20, a state board or commission without power to punish for contempt may petition the superior court to hear the matter as if it had arisen in superior court.  The old state subversive law was involved in contempt brought against one Hugo De Gregory in the 1950’s.  After he refused to answer certain questions relating to his membership in the Communist Party he was ordered committed to jail.  Upon a motion to stay the order pending constitutional challenges to the subversive laws, the Supreme Court of New Hampshire ordered a stay and set bail.153  Two more stays in the civil contempt matter were granted thereafter.154  Such stays pending appeal of contempt are discretionary only.


In Morgan v. Kerrigan, certain members of the Boston School Committee sought to stay sanctions imposed by a civil contempt order issued in school integration litigation in Boston, pending appeal of the underlying pupil busing order.155  The First Circuit said the test for determining if a stay should be granted depended on two factors: the likelihood of defendant’s ultimate success on the merits of the busing order and a balancing of the harm to them with the harm to the N.A.A.C.P. and to the public if a stay were granted.  The court noted that a coercive civil contempt was at issue but also that the legal or factual basis of the underlying order alleged to have been disobeyed was not to be reopened in the contempt proceeding.156  Relief was denied. 


Likewise, in a dog track dispute and “strike,” the Florida Supreme Court unanimously affirmed the injunction against and subsequent jailing of 18 dog handlers who had refused to race their dogs while under a duty to do so.  The court noted that the public was losing $64,000 in tax revenue a day and the kennel owners and handlers “carry the keys of their prison in their own pocket.”  The opinion also affirmed the appointing of a receiver to race the dogs until the contemnors purged themselves of contempt.157


As for the procedural elements of contempt itself, the first requirement is, of course, jurisdiction over the contemnor.  Willard Uphaus of Connecticut was successfully able to avoid a contempt sentence because he was never personally served in this state.  Such service is required to allow the court to proceed in personam against a nonresident.158  The accused must also be present for sentencing in a criminal contempt.159  Presence of the contemnor is not required for judgment in civil contempt.160 


Most procedural guidelines were detailed a century and a half ago in State v. Matthews.161  That case says that if the contempt is indirect “the process for bringing the offender before (the court) ... for punishment is called an attachment.”162  The attachment (or capias) may precede an order to “show cause” why an attachment or capias should not issue.163  If the offender fails to appear for a show cause hearing, the attachment may issue, but if he appears and admits the contempt an attachment is not needed.164 


A contempt proceeding is “a distinct and independent matter” and requires distinct notice and specificity in charging the breach of an order or misconduct considered to cause the contempt.165  Specificity with regard to trial record conduct is required or else reversal looms as a distinct possibility.166 


The capias is merely to bring the defendant before the court.  Once there the “proceedings are to be regarded and entitled as of a criminal character” if a criminal contempt is involved.167  A “State v. X” criminal file and docket entry should be separately established by the clerk.168  The case will be heard as a criminal matter with the court usually appointing an attorney or the county attorney to present the matter and go forward with evidence.  Proof on both sides will be taken and the defendant may answer the state’s evidence or exercise his right to remain silent — a right he should be warned of by the court.  Rules of evidence and procedure are to be utilized as in any other criminal trial “except in the matter of jury” (unless required as above noted).169  The court then “determines, from a consideration of the whole evidence, the guilt or innocence of the accused.”170  The test of beyond a reasonable doubt applies to criminal contempts.171 


The defense of reliance on advice of counsel that caused an order to be violated was not recognized in this state in a civil contempt.172  However, in State v. Collins, an attachment for criminal contempt for violating an injunction was set down for hearing with the trial court being told to consider “evidence of the defendant’s intent in mitigation of penalty.”173



1.   W. Shakespeare, Measure for Measure, quoted in NATIONAL COLLEGE OF THE STATE JUDICIARY JUDICIAL PROBLEMS 119 (1975) [hereinafter JUDICIAL PROBLEMS].

2.   Charles G. Douglas, III, Civil and Criminal Contempt in New Hampshire, 17 N.H.B.J. 13 (1975).

3.   Tenney’s Case, 23 N.H. 162, *4 (1851).

4.   Id. at *3.

5.   State v. Towle, 42 N.H. 540, *2 (1861). 

6.   Id.


8.   State v. Moquin, 105 N.H. 9, 11 (1963). 

9.   N.H. REV. STAT. ANN. §§ 491:7, 491:19 and 491:20 (2007); See also N.H. SUPER. CT. R. 95 and 204 (criminal contempt and civil contempt, respectively). 

10. Moquin, 105 N.H. at 12.

11. Benton v. Dover District Court, 111 N.H. 64 (1971).

12. Id. at 65.  ABA STANDARDS FOR CRIMINAL JUSTICE: SPECIAL FUNCTIONS OF THE TRIAL JUDGE, 3d. ed., Standard 6-4.1 (2000) recognizes the inherent power of a court “to protect the integrity and fair administration of the criminal justice process by imposing sanctions.”  For an early United States Supreme Court decision affirming a contempt see Ex Parte Terry, 128 U.S. 289 (1888).

13   Opinion of the Justices, 86 N.H. 597, 166 A. 640 (1933).  See also Arnett v. Meade, 462 S.W.2d 940 (Ky. 1971), in which under the inherent power doctrine the Kentucky Supreme Court voided a 117 year old statute limiting the fine to $30 and confinement to 24 hours.

14. Opinion of the Justices, 86 N.H. 597, 166 A. 640, 646 (1933).

15. The same authority is given the senate and the Governor and Council in Part II, Article 23, but with a ten-day imprisonment limitation.

16. Rogowicz v. O’Connell, 147 N.H. 270, 273 (2001).

17. Federal criminal contempt is authorized under 18 U.S.C. § 401(3) (2006), which provides:  “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. . . Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”

18. Rogowicz, 140 N.H. at 273.  

19. See, e.g., Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282 (1978); Bonser v. Courtney, 124 N.H. 796 (1984); Town of Nottingham v. Bonser, 131 N.H. 120 (1988); Knox Leasing v. Turner, 132 N.H. 68 (1989); Bonser v. Town of Nottingham, 490 U.S. 1109 (1989) cert. denied; Town of Nottingham v. Bonser, 146 N.H. 418 (2001).

20. Robert Bonser, 73 Owned Mobile Park, BOST. GLOBE, May 5, 1994, Obituary. 

21. Cedar Waters, 118 N.H. at 284; Brad Pokorny, Robert Bonser: Lawbreaker or N.H. Political Prisoner?, BOST. GLOBE, May 1, 1983.

22. See Bonser v. Courtney, 124 N.H. 796 (1984); Order is More Than Nudist Camp Boss Can Bear, HOUS. CHRONICLE, June 23, 1985, Section 3 [hereinafter Chronicle Article]; Pokorny, supra, note 21. 

23. Chronicle Article, supra.

24. Pokorny, supra, note 21.

25. Associated Press, Owner of Illegal Mobile Homes in N.H. Facing Jail Again, BOST. GLOBE, Feb. 24, 1985, Metro Section; Associated Press, Jailed N.H. Protester Gets Easter Pass, BOST. GLOBE, April 7, 1985, Metro Section [hereinafter Protester Article].

26. Pokorny, supra, note 21

27. N.H. Man is Said to Threaten Officials, BOST. GLOBE, Aug. 25, 1989, Metro Section; Pokorny, supra, note 21.

28. Bonser was able to avoid paying these sums personally, as they were assessed against him in 2001, after his death in 1994.  The sanctions were eventually levied against the property.  See Town of Nottingham v. Bonser, 146 N.H. 418, 421 (2001).

29. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 284 (1978).

30. Id.

31. Id. 

32.  Id. 

33. Id. 

34. Id. at 287.  The unanimous decision was authored by the lead author herein, and reflected much of his analysis in a 1975 article.  Hon. Charles G. Douglas III, Civil and Criminal Contempt in New Hampshire, 17 N.H.B.J. 13 (1975).  Portions of that text are reprinted in this article with permission.  The original is unavailable in electronic format. 

35. Cedar Waters, 118 N.H. at 285 (quoting State v. Towle, 42 N.H. 540, 544 (1861)).

36. Cedar Waters, 118 N.H. at 285.

37. Id. 

38. Id.

39. Id. (citations omitted). 

40. Hopp v. Hopp, 156 N.W.2d 212, 217 (Minn. 1968).

41. Noddin v. Noddin, 123 N.H. 73, 76 (1983); In re Rossino, 153 N.H. 282, 283 (2006) [hereinafter Rossino I]; In re Rossino 153 N.H. 367, 370 (2006) [hereinafter Rossino II].

42. Rossino I, 153 N.H. at 283.

43. Id.

44. See N.H. Rev. Stat. Ann. § 458-C:2; Rossino II, 153 N.H. at 371 (2006) (holding RSA 458-C:2 only applies if it is first determined that the defendant’s inability to pay child support is not due to limited physical or mental abilities).

45. See Douglas, 3A NEW HAMPSHIRE PRACTICE: FAMILY LAW, 3d. Ed., § 22.21 (discussing Mason Furniture Corp. v. George, 116 N.H. 451 (1976) (“[W]hen a judgment debtor has been found by the court to be able to pay, he may be ordered to pay and ordered to be imprisoned until he makes the prescribed payment.”).

46. State v. Wallace, 136 N.H. 267, 270 (1992).

47. See MacNeil v. United States, 236 F.2d 149, 154 (1st Cir. 1956).

48. Id. 

49. Wallace, 136 N.H. at 268. 

50. Id. 

51. Id. at 269.

52. Id. at 271.

53. Id.

54. See Hicks v. Feiock, 485 U.S. 624, 637-38 (1988) (holding that ability to comply with a court order was a statutorily defined element of the crime and requiring the defendant to prove inability was a violation of the Due Process Clause “because it would undercut the State’s burden to prove guilt beyond a reasonable doubt”).

55. See Wallace, 136 N.H. at 271 (“We have also held that in civil contempt proceedings, the defendant may raise inability to comply with the court’s order as a defense, and the court should consider the defendant’s explanation as well as all relevant circumstances prior to incarcerating the defendant”).

56. MacNeil, 236 F.2d at 154-55; See also Cedar Waters, 118 N.H. at 287 (“In this case the court converted a civil into a criminal contempt without following the proper procedural steps and therefore the contempt must be set aside.”).

57. United States v. International Union, United Mine Workers of America, 196 F.2d 865, 873 (C.A.D.C. 1951). 

58. See In re Little, 404 U.S. 553, 555 (1972). 

59. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282 at 287 (1978).

60. Bonser v. Courtney, 124 N.H. at 800.

61. Id. at 808. 

62. Id. at 806.

63. Id.

64. Id. at 807.

65.        Protester Article, supra, note 25.

66. Mortgage Specialists, Inc. v. Davey, 153 N.H. 764, 768 (2006).

67. Id. at 783-84. 

68. Id. at 784.

69. Id. at 784-85.

70. Id. at 790.

71. Id.

72. National Conference of State Trial Judges, THE STATE TRIAL JUDGE’S BOOK 307 (2nd ed. 1969).

73. Curtis v. Tozer, 374 S.W.2d 557 (Mo. App. 1964).

74. Illinois v. Allen, 397 U.S. 337 (1970).

75. Allen, 397 U.S. at 345.

76. Benton v. Dover District Court, 111 N.H. 64, 64 (1971).

77. State v. Moquin, 105 N.H. 9 (1963)

78. Groppi v. Leslie, 404 U.S. 496 (1972)

79. Groppi, 404 U.S. at 504. 

80. Id. 

81. Id. at 505. 

82. Id. 

83. Newby v. District Court, 147 N.W.2d 886 (Iowa 1967).

84. United States v. Wilson, 421 U.S. 309 (1975).

85. Id. at 315-16.  The result may be different with grand juries where delay is not always the same factor.  See e.g., Harris v. United States, 382 U.S. 162 (1965), and Shillitani v. United States, 384 U.S. 364 (1966).

86. Mortgage Specialists, Inc. v. Davey, 153 N.H. 764, 788 (2006). 

87. MacNeil v. United States, 236 F.2d 149, 154-55 (1st Cir. 1956).

88. Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 285 (1978).

89. Id. 

90. Id. 

91. Id. 

92. Id. (“In civil contempt, the punishment is remedial, coercive, and for the benefit of the complainant. Civil contempt proceedings may result in money fines payable to the complainant or in an indeterminate jail sentence until the contemnor complies with the court order.”).

93. Id.  See also In re Kosek, 151 N.H. 722, 727 (2005) (“The criminal contempt defendant, unlike the civil contempt defendant, may be imprisoned for a determinate amount of time without the ability to purge the sentence.”).

94. Kosek, 151 N.H. at 723-24.

95. Id. at 727. 

96. Id.

97. Id.  See also In re Stall, 152 N.H. 163, 169-70 (2005) (upholding a fine of $1300 to reimburse the father for “money he spent to clothe the children in the summer” because there was “no indication in the record that the trial court sought to protect its authority and vindicate its dignity by issuing this particular contempt action.”).

98. Kosek, 151 N.H. at 727. 

99. Id. 

100.      Id.

101.      N.H. REV. STAT. ANN. §§ 461-A:15 and 458:51 (2007). 

102 .     THE STATE TRIAL JUDGE’S BOOK at 313, supra, note 72.

103.      Tuttle v. Palmer, 118 N.H. 553 (1978).  See also Stephenson v. Stephenson, 111 N.H. 189, 196 (1971); 56 A.L.R.4th 486 (“Attorney’s Liability Under State Law For Opposing Party’s Counsel Fees”).

104.      N.H. SUPER. CT. R. 95(b) (2006). 

105.      Rogowicz v. O’Connell, 147 N.H. 270, 273 (2001) (quoting Young v. United States, 481 U.S. 787, 801 (1987)). 

106.      Rogowicz, 147 N.H. at 274.  See also State v. Rollins, 129 N.H. 684, 685 (1987) (“The common law of this State does not preclude the institution and prosecution of certain criminal complaints by private citizens.”).

107.      Rogwicz, 147 N.H. at 272.

108.      Id. 

109.      481 U.S. at 793.

110.      Rogowicz, 147 N.H. at 273. 

111.      Id. at 274.

112.      Id. (quoting Young, 481 U.S. at 804).  See also ABA STANDARDS FOR CRIMINAL JUSTICE: SPECIAL FUNCTIONS OF THE TRIAL JUDGE, 3d. ed. (2000), Standard 3-1.2(c) (“The duty of the prosecutor is to seek justice, not merely to convict.”).

113.      Rogowicz, 147 N.H. at 274 (quoting Young, 481 U.S. at 809). 

114.      Id. 

115.      Douglas, 3A NEW HAMPSHIRE PRACTICE: FAMILY LAW, 3d. Ed., § 22.03.

116.      See N.H. REV. STAT. ANN. § 311:6 (2007).

117.      People v. Green, 3 P. 65 (Colo. 1884); In re Schofield, 66 A.2d 675 (Pa. 1949).

118.      N.H. REV. STAT. ANN. § 311:8 (2007).

119.      N.H. SUP. CT. R. 38 (2006).

120.      N.H. SUP. CT. R. 37(1)(c) (2006). 

121.      Id. 

122.      N.H. SUP. CT. R. 37(1)(b) (2006).

123.      In re Isserman, 87 A.2d 903 (1952).

124.      Justices of the Appellate Division, First Department v. Erdman, 301 N.E. 2d 426 (N.Y. 1973) (but with two strong dissenting opinions).

125.      N.H. DIST. CT. R. 1.2 (2006).

126.      Id. 

127.      In re Little, 404 U.S. 553 (1972).

128.      Id. at 555 (citations omitted). See also Holt v. Virginia, 381 U.S. 131 (1965).

129.      In re Dellinger, 502 F.2d 813 (7th Cir. 1974). 

130.      In re Dellinger, 461 F.2d 389, 399-400 (7th Cir. 1972). 

131.      See United States v. Meyer, 346 F. Supp. 973 (D.D.C. 1972).

132.      State v. Moquin, 105 N.H. 9, 14 (1963).

133.      Id.

134.      Id.


136.      Mayberry v. Pennsylvania, 400 U.S. 455 (1971).

137.      Id. at 456-58. 

138.      Id. at 455. 

139.      Id. at 465.

140.      Id.  Accord, Offutt v. United States, 348 U.S. 1 (1954).

141.      State v. Ray, 63 N.H. 406, 407 (1885).   And see, Part 1, Article 20 (establishing a right to a jury trial “in all suits between two or more persons except those in which another practice is and has been customary”).

142.      State v. Matthews, 37 N.H. 450, 456 (1859).

143.      Bloom v. Illinois, 391 U.S. 194, 198 (1968).

144.      See Cheff v. Schnackenberg, 384 U.S. 373 (1966).

145.      Town of Nottingham v. Cedar Waters, Inc., 118 N.H. 282, 285 (1978)

146.      Codispoti v. Pennsylvania, 418 U.S. 506, 513-14 (1974).

147.      But see Sacher v. United States, 343 U.S. 1 (1952), where sentence was delayed in a multi-month Communist Party trial so as not to prejudice the jury. The case was discussed and not overruled in Groppi v. Leslie, 404 U.S. 496 (1972), leaving the matter in doubt.

148.      Frank v. United States, 395 U.S. 147 (1969). 

149.      Taylor v. Hayes, 418 U.S. 488 (1974).

150.      N.H. REV. STAT. ANN. § 596-A:3 (2007).  Perhaps a better rule would be to inform the contemnor of his right to counsel and the right to remain silent inasmuch as punishment in the form of confinement could result from criminal contempt.

151.      Argersinger v. Hamlin, 407 U.S. 25 (1972).

152.      Duval v. Duval, 114 N.H. 422, 427 (1974).  See also Bruno, The Right to Counsel in Civil Contempt Cases, 16 N.H B. J. 126 (1974).

153.      Wyman v. DeGregory, 100 N.H. 513, 513 (1957).

154.      Wyman v. DeGregory, 101 N.H. 82 (1957); Wyman v. DeGregory, 102 N.H. 564 (1960). 

155.      Morgan v. Kerrigan, 509 F.2d 599 (1st Cir. 1975).

156.      See Maggio v. Zeitz, 333 U.S. 56, 69 (1948); United States v. United Mine Workers, 330 U.S. 258 (1947).

157.      Wilson v. Sandstrom, 317 So.2d 732, 741 (Fla. 1975). 

158.      State v. Uphaus, 100 N.H. 1 (1955).

159.      17 C.J.S. Contempt § 100 (2007). 

160.      Id. 

161.      State v. Matthews, 37 N.H. 450 (1859).

162.      Id. at 453.

163.      Id. at 454. 

164.      Id.

165.      Id. 

166.      See e.g., United States v. Marshall, 451 F. 2d 372 (9th Cir. 1971); In re Oliver, 452 F.2d 111 (7th Cir. 1971).

167.      Matthews, 37 N.H. at 454. 

168.      Town of Nottingham  v. Cedar Waters, Inc., 118 N.H. 282, 286 (1978).

169.      In re Bates, 55 N.H. 325, 327 (1875). 

170.      Matthews, 37 N.H. at 456.

171.      Cedar Waters, 118 N.H. at 286.

172.      Buffum’s Case, 13 N.H. 14, *2 (1842). 

173.      State v. Collins, 62 N.H. 694 (1882).


Attorney Charles G. “Chuck” Douglas,III, is a principal of Douglas, Leonard & Garvey PC in Concord. He served 10 years as a judge on the New Hampshire Superior Court and the New Hampshire Supreme Court. He was elected to Congress in 1989 and served one term. He has written numerous articles for the Bar Journal and other publications, and has authored two treatises on New Hampshire law.



Christopher Buck is a third-year student at Franklin Pierce Law Center and worked as a clerk in the office of Douglas, Leonard & Garvey in the summer of 2007.


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