Request By:
Hon. A. Jack May
Director, Legal and Support Services
Kentucky Justice Cabinet, Department of Training
Stratton 107, Eastern Kentucky University
Richmond, Kentucky 40475-0957
Opinion
Opinion By: David L. Armstrong, Attorney General; Sarah M. Jackson, Assistant Attorney General
This is in response to your recent letter dated June 6, 1984, wherein you requested an Opinion concerning the interpretation of Section 10 of Senate Bill 17, a bill relating to domestic violence and abuse which was passed during the most recent Legislative Session. More specifically, noting that Section 10 of Senate Bill 17 provides that violation of the terms or conditions of any order entered under the Act ". . . shall constitute contempt of court", you have asked whether a law enforcement officer may arrest without a warrant a spouse who violates a court order restraining said spouse from visiting the place of residence of the petitioning spouse. Resolution of the question hinges, in part, on whether contempt of court clearly constitutes a misdemeanor so as to empower a law enforcement officer to arrest without a warrant an individual who commits a misdemeanor in his presence. KRS 431.005(1)(d).
While KRS 431.005(1) clearly empowers law enforcement officers to arrest without a warrant an individual who has committed a misdemeanor in the officer's presence, KRS 431.060 must be consulted in determining exactly what constitutes a misdemeanor. KRS 431.060 divides offenses into the following three (3) categories: felonies, misdemeanors, and violations. Under KRS 431.060(2), misdemeanors are defined as those offenses which are punishable by confinement other than in the penitentiary, whether or not a fine or penalty may also be assessed. KRS 431.060(2).
Historically, the act of holding an individual to be in contempt of court has been recognized as a judicial power necessary to the successful administration of justice and order in judicial proceedings. Contempt of court appears to be a creature of common law. KRS 432.230, a statutory provision dealing with one specific instance of contempt, provides that jurors, witnesses, and officers may be punished for contempt of court. It should be noted, however, that KRS 432.260, which specifically limited punishment for contempt of court to a certain number of days of imprisonment and/or a maximum fine, was repealed in 1978. In Crook v. Schumann, 292 Ky. 750, 167 S.W.2d 836 (1942), the Court, commenting on a court's inherent power to punish for contempt, noted as follows:
"It may well be doubted whether the legislature could limit the authority of the courts respecting practice and proceedings since all of our courts are created by the Constitution and all judicial power is lodged in them, save and except the Senate in cases of impeachment." 167 S.W.2d at 840.
It appears that a court has the inherent right to punish acts of contempt. No statute in particular created that right.
Moreover, KRS 500.020 provides as follows:
"(1) Common law offenses are abolished and no act or omission shall constitute a criminal offense unless designated a crime or violation under this code or another statute of this state.
(2) This provision shall not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree." KRS 500.020.
In enacting KRS 500.020, the Legislature obviously recognized the unique nature of the court's power to punish for contempt of court.
It is clear that contempt of court today remains a power inherent in and necessary to a court's enforcement of its orders. It has been held that the ". . . power to punish those persons found guilty of contempt is inherent in all courts of record." Armstrong v. Bryan, Ky., 273 S.W.2d 835, 837 (1954). In Young v. Knight, Ky., 329 S.W.2d 195 (1959), the Court stated as follows:
"It is not possible for any judicial tribunal to fulfill its functions without power to preserve decorum and to enforce its orders. Hence, it has been recognized from ancient days that the process of contempt is an essential and inherent attribute of the jurisdiction of every court of record, and this judicial power may not be confined by limitation of a statute, except in respect of punishment. Crook v. Schumann, 292 Ky. 750, 167 S.W.2d 836; Armstrong v. Bryan, Ky., 273 S.W.2d 835; Rapalje on Contempts, Section 1, 11." Young v. Knight, supra, at 199.
Courts have repeatedly held that a court has the right to invoke contempt power in enforcing its judgments and orders. Whitman v. Kentucky Central Life & Accident Ins. Co., 232 Ky. 173, 22 S.W.2d 593, 594 (1929); Armstrong v. Bryan, supra, at 837. See also: Akers v. Stephenson, Ky., 469 S.W.2d 704 (1970).
You are correct in calling to our attention the case of Young v. Knight, supra, wherein the Court, citing Gordon v. Commonwealth, 141 Ky. 461, 133 S.W. 206 (1911), Melton v. Commonwealth, 160 Ky. 642, 170 S.W. 37 (1914), stated: "This court has expressly held in two cases that contempts of court are misdemeanors. " Young v. Knight, supra, at 199. In Gordon, supra, a contempt proceeding centered on the contemner's false testimony. In Melton, supra, the actions of the contemner, a doctor, included conniving with attorneys of record in order to falsify the extent of damages. The Court, in Young v. Knight, supra, attempted to distinguish between the various forms of contempt of court.
"While contempt partakes of the nature of a crime, it is only quasi criminal. It has been said that contempt is sui generis as being an offense against public justice. 17 C.J.S. Contempt Section 7. A distinction may be drawn. Some misconduct may be contempt for which the contemner may be subject to indictment, e.g., obstructing justice, as in the Gordon and Melton cases, supra. Contemptuous conduct of a different character may not be so treated. Of such is an act which disregards or interferes with a judicial proceeding, as by disobeying the court's order, or conduct which scorns and defies the authority and dignity of a court or which tends to bring the administration of the law into disrespect. Whitman v. Kentucky Central Life & Acc. Ins. Co., 232 Ky. 173, 22 S.W.2d 593." Young v. Knight, supra, at 199.
Central to the Court's discussion above was the comparison of the nature of the contempt in Melton, supra, and Gordon, supra, to actual indictable offenses.
Courts have long recognized that there exists a distinction, albeit difficult to pinpoint at times, between "civil contempt" and "criminal contempt" . Levisa Stone Corp. v. Hays, Ky., 429 S.W.2d 413, 418 (1968); Miller v. Vettiner, Ky., 481 S.W.2d 32, 34-35 (1972).
In view of the foregoing, it is evident that the power to adjudge an individual to be in contempt of court and to punish the contemner upon such a finding is a power inherent in the court. This Office cannot categorically state that contempt of court is a misdemeanor. KRS 431.005, KRS 431.060, and 500.020 must be read together, and such a reading reveals that a law enforcement officer may only arrest without a warrant an individual who in the officer's presence commits a misdemeanor, an offense punishable by confinement other than in the penitentiary whether or not a fine or other penalty may also be assessed. KRS 431.005; KRS 431.060. KRS 431.005(1)(d) refers only to those misdemeanors which are sharply and clearly defined by statute. In effectuating a lawful warrantless arrest under KRS 431.005(1)(d), a police officer should only rely on elements of statutory law which are stated in an objective and clear manner.
This Office concludes that the language used by the Legislature in Section 10 of Senate Bill 17, which states that violation of the terms or conditions of an order issued under the provisions of this Act "shall constitute contempt of court", does not empower a law enforcement officer to arrest without a warrant a spouse found violating the provisions of an order restraining said spouse from visiting the residence of the petitioning spouse. There exist other instances in which the Legislature has addressed a court's power to enforce its own orders, judgments, or rulings. For example, KRS 211.184, a statute relating to the treatment of cancer patients, provides that violations of injunctions and restraining orders issued by courts ". . . shall be punished as a contempt without the intervention of a jury." KRS 211.184. KRS 367.290 provides that violations of court orders in consumer protection matters ". . . shall be punishable as contempt. " KRS 367.290. It is our opinion that the Legislature intended for Section 10 of Senate Bill 17 to have the same effect as the aforecited statutory provisions. Simply put, upon a court's finding that its protective order or restraining order issued under the Act was violated, the court has the power to adjudge the violating party to be in contempt of court.
It should be noted that this Opinion in no way limits a law enforcement officer's power to nevertheless arrest without a warrant a visiting spouse if, for example, an assault, trespassing, abuse, or other offense has been commited. See KRS 431.005(1) and (2). We hope that this Opinion proves to be of assistance to you.