Once the defendant is before the court on a capias or order to show cause, the court should expeditiously hold a contempt hearing. Only a judge may fine or imprison a defendant.
Commentary
When the defendant comes before the court on a capias or order to show cause, a contempt hearing shall be held and the court shall take such action permitted by law as it deems appropriate to the end that orders for payment are complied with promptly and satisfaction of the judgment in the case is not frustrated. Uniform Small Claim Rule 9 (a). The defendant should understand the serious point to which the proceedings have progressed. Thus, when the debtor is before the court on arrest, the fact that he or she is under arrest should be made clear to the debtor. The court should hear the matter even if the debtor is brought in on a day other than one scheduled for small claims or enforcement of judgments. This procedure is recommended because, if chronic debtors are aware that they will be arrested only on that day, they may make themselves unavailable. If the court cannot, or in the interest of justice should not, hear the case that day, the court has the power to set bail.
Only a judge can find contempt, fine, and imprison a defendant; remedies short of imprisonment or punitive fine may be administered by a clerk-magistrate or assistant clerk-magistrate. Uniform Small Claim Rule 9(b), as recently amended. A judge considering incarceration as the remedy for contempt has two options. The first is to issue a traditional civil contempt ruling whereby the defendant is held in jail only so long as the court's order for payment or other terms set by the judge to purge the contempt are not complied with. In a civil contempt proceeding, due process requires that the court advise the defendant of the particulars of the charge against him or her, that the defendant have a reasonable opportunity to be heard in reply, including offering testimony and calling witnesses, and that the defendant has the right to have retained counsel represent him or her. Petition of Crystal, 330 Mass. 583 (1933). There is no right to trial by jury. Matter of DeSaulnier, 360 Mass. 769 (1971).
The judge's second option is to proceed under the quasi-criminal provisions of G.L. c. 224, s. 18. Under this procedure, the defendant may be punished by not more than thirty days in the common jail or a fine of not more than $200.00. Because of the punitive nature of the sanction, more extensive due process is required.