How Appealing yesterday pointed us to the new Third Circuit ruling reversing a trial court that had ordered the release of a man who has served 7 years for civil contempt for failing to turn over 2.5 million in assets to his ex-wife when he has the ability to do so. The trial court had ruled that there was no substantial likelihood that the man would turn over the assets with continued incarceration and thus his imprisonment had become punitive instead of coercive.

The Third Circuit tried to distinguish its own precedent (unpersuasively to us) and stated the U.S. Supreme Court had never said the "substantial likelihood" rule was the test.

The rule is apparently alive and well in the Second Circuit, however, where the "substantial likelihood" factor is one for the trial judge to consider.

See, e.g., Simkin v. U.S., 715 F.2d 34, 37,

"It is familiar ground that a civil contempt sanction is a coercive device, imposed to secure compliance with a court order, ...and that "when it becomes obvious that sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment." Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir. 1981). When a recalcitrant witness is jailed for refusing to furnish unprivileged information in state court proceedings, it has been held that at some point in what otherwise would be an indefinite period of confinement due process considerations oblige a court to release a contemnor from civil contempt if the contemnor has then shown that there is no substantial likelihood that continued confinement will accomplish its coercive purpose."

In the grand jury context, the Second Circuit stated that the trial judge has broad discretion in making this determination.

"If the judge is persuaded, after a conscientious consideration of the circumstances pertinent to the individual contemnor, that the contempt power has ceased to have a coercive effect, the civil contempt remedy should be ended. The contemnor will not have avoided all sanction by his irrevocable opposition to the court's order. Once it is determined that the civil contempt remedy is unavailing, the criminal contempt sanction is available."

Here's what the trial judge decided in January, 2002 in Mr. Chadwick's case (2002 U.S. Dist. LEXIS 10 (Jan. 2002).)

"If, as Chadwick contends, the confinement has lost its coercive force, it has become punitive. See In re Grand Jury Investigation, 600 F.2d at 423-24. The burden is on Chadwick to show that there is no "substantial likelihood" that compliance will be the result of continued incarceration. Id. at 425. His obstinacy during more than six and half years of imprisonment is persuasive that Chadwick will never voluntarily deposit the disputed funds with the court; it seems clear he is willing to remain incarcerated for life rather than allow his ex-wife access to a share of the funds."

"Now, after nearly seven years, it is no longer reasonable to conclude Chadwick's continued confinement might still result in compliance with the July 22, 1994 order. Chadwick's continued incarceration cannot be rationalized under Gompers or Bagwell in light of Chadwick's clear and convincing proof there is no "substantial likelihood" that his remaining in custody will result in his compliance; his confinement, no longer coercive, is an unreasonable application of Supreme Court precedent. "

Bottom line to us: If the contemnor is "never" going to talk or turn over evidence or other demanded material, then suffering the consequences is punishment. He should be released from civil confinement and the state or Goverment as the case may be is free to bring criminal contempt charges.