Small v. Commonwealth

Opinion

BARROW, J.

This appeal of a criminal contempt conviction addresses the issue of whether the conviction is barred by constitutional double jeopardy principles because of fines imposed in a prior civil contempt proceeding arising out of the same transactions. We hold that, because the fines imposed in the prior civil contempt proceeding were punitive instead of remedial, they constituted a criminal sanction and barred the later imposition of additional criminal sanctions. Because we reverse on double jeopardy grounds, we do not address the defendant’s claim that he was denied a speedy trial. Finally, we conclude that we may not consider in this appeal the defendant’s contention that he was denied due process in the earlier, civil contempt proceeding.

The defendant appeals from a judgment of contempt for failure to comply with an earlier order of the trial court. The earlier order enjoined him from certain conduct that did not conform with the Virginia Home Solicitation Sales Act, Code §§ 59.1-21.1 through 59.1-21.7:1. Prior to the issuance of the injunction, the defendant, a paving contractor, had entered into an agreement with the Commonwealth of Virginia through the Attorney General’s office. This agreement was incorporated into the trial court’s order enjoining the specified activity. The injunction followed as a result of the trial court’s finding that the defendant had violated the terms of the agreement.

Less than four months after entry of the decree enjoining the defendant, the Commonwealth initiated two contempt proceedings, including this one, against the defendant. These proceedings were based on discovery that the defendant had continued to engage in the conduct from which he had been enjoined. In one of the proceedings, the Commonwealth sought to have the defendant found in civil contempt of court and, in the other, in criminal contempt.

Both the civil and the criminal proceedings were consolidated and set for trial. However, at the trial it was discovered that the defendant had not been properly served in connection with the criminal contempt proceeding, and the trial court postponed that hearing. After hearing evidence on the motion for civil contempt, the court found the defendant in contempt and ordered him to pay to the Commonwealth of Virginia (1) $16,999.50 to be disbursed to four customers of the defendant to reimburse them for damages they had sustained, (2) $2,425.50 in attorney’s fees and $136.50 in costs arising from the prosecution and preparation of the proceeding, and (3) $3,000 “in civil penalties for the respondent’s willful and flagrant violations of the court’s final order.”¹

Later, before the trial on the criminal contempt proceeding, the defendant moved to dismiss the criminal proceeding on the ground that the $3,000 in “civil penalties” previously imposed in the civil proceeding represented a criminal sanction and that his right to be free from being twice put in jeopardy for the same offense barred the imposition of further criminal penalties. The trial court denied this motion, and the defendant appealed.

While it is true that both criminal and civil sanctions may be imposed as a result of the same conduct, United States v. Halper, 490 U.S. 435, 443 (1989), the double jeopardy clause bars the imposition of two separate penalties if both are punitive. Id. at 448-49. The labels “criminal” and “civil” are not of great importance in determining whether a later punishment is barred by the double jeopardy clause. Id. at 447. Furthermore, it is not the “fact of punishment but rather its character and purpose” that distinguishes civil and criminal contempt. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441 (1911). The punishment for civil contempt is remedial and for the benefit of the injured party. Id. The punishment for criminal contempt, however, is punitive, “to vindicate the authority of the court.” Id.

The double jeopardy clause becomes operative if one of the sanctions “may not fairly be characterized as remedial” and both sanctions may be characterized only as either “a deterrent or retribution.” Halper, 490 U.S. at 449. A sanction is not “remedial” if it “bears no rational relation to the goal of compensating” the injured party, which may include the government, for its loss. Id. The trial court must determine the amount of a civil sanction so that it will not cross “the line between remedy and punishment.” Id. at 450. Even though such a determination may often, by necessity, be an approximation, it must be an approximation that ensures both “that the Government is fully compensated for . .. [its costs] and that, as required by the Double Jeopardy Clause, the defendant is protected from a sanction so disproportionate to the damages caused that it constitutes a second punishment.” Id. at 450. In other words, the government may not obtain a judgment in a civil action for contempt “that is not rationally related to the goal of making the Government whole,” and, in addition, impose a criminal penalty upon the defendant based on the same conduct. Id. at 451.

The $3,000 in “civil penalties” imposed on the defendant in this case bears no rational relation to the goal of compensating the government for its loss. In addition to these penalties, the trial court also awarded the Commonwealth almost $17,000 for damages to be disbursed to the customers injured by the defendant. In addition, it awarded more than $2,500 in attorney’s fees and expenses incurred by the Commonwealth in prosecuting and preparing the case. There was no evidence of any other losses experienced as a result of the defendant’s conduct.

Without evidence of further loss there was no remedial basis for the trial judge’s award of the penalties. Even if necessity required an approximation of a loss, there must be some evidence from which to make an approximation. See Halper, 490 U.S. at 449-50. Furthermore, the penalties are not so monetarily insignificant that they are not punitive in effect. See United Steelworkers, Local 8417 v. Newport News Shipbuilding & Drydock Co., 220 Va. 547, 551, 260 S.E.2d 222, 225 (1979) (fines of $150 to $500 found to be criminal sanctions where there was no evidence of pecuniary loss).

The trial court explained that the civil penalties were imposed because of the defendant’s “willful and flagrant violations of the court’s final order.” Thus, the civil penalties were designed “to vindicate the authority of the court,” the role of a sentence for criminal contempt. Gompers, 221 U.S. at 441. It was not, therefore, a remedial measure to restore to the Commonwealth a loss it had sustained.

For these reasons we conclude that the $3,000 “in civil penalties” imposed by the court on the defendant in the civil contempt proceeding were in fact punitive in nature and, therefore, barred the later criminal contempt proceeding based on the same conduct.

Having found that the judgment appealed from is barred by the double jeopardy clause, it is not necessary that we address the defendant’s contention that he was denied his right to a speedy trial. In addition, since only the judgment of conviction for the criminal contempt was appealed and no appeal was taken from the earlier judgment for civil contempt, we may not consider the defendant’s claim that he was denied due process of law in the proceeding resulting in the judgment of civil contempt. See Code § 8.01-675.3; Turner v. Commonwealth, 2 Va. App. 96, 98, 341 S.E.2d 400, 401 (1986).

For these reasons, we reverse the defendant’s conviction of criminal contempt.

Reversed.

Benton, J., Duff, J., Keenan, J., Moon, J., and Willis, J., concurred.

1 These penalties were imposed on August 26, 1986; therefore, they were not imposed pursuant to Code § 59.1-206 which was not applicable until July 1, 1987, when Code § 59.1-21.7:1, extending the enforcement provisions of the Virginia Consumer Protection Act to the Virginia Home Solicitation Sales Act, became effective.