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Can a private party bring an action for criminal contempt in an Article I court?

This morning, the Court will hear argument in a case addressing the prosecution of criminal contempt proceedings in congressionally created courts.  Even the case caption is in question: the petitioner styles the matter Robertson v. United States ex rel. Watson (08-6261).  The dispute centers on whether a private party can bring a prosecution for criminal contempt, or whether that role must instead be assumed by the sovereign.  Contempt of court is an odd crime: a court may initiate contempt proceedings on its own motion, may find someone summarily guilty of the offense if committed in open court, and need not procure a grand jury indictment.  That this dispute arose between two residents of the District of Columbia, where the local courts have been established by Congress in the exercise of its Article I power, adds another layer of complexity to the case.

Civil protective orders have become an important element in the battle against domestic violence.  The statute at issue in this case – the first of its kind when it was enacted in 1970 – has undergone a fairly typical evolution.  Initially, it authorized only the D.C. Corporation Counsel (now the D.C. Attorney General) to petition for a protective order.  In 1982, the D.C. City Council authorized victims to seek protective orders on their own initiative, after finding that the Corporation Counsel’s office could not meet the demand.  And in 1994, the District of Columbia Court of Appeals held that the law authorized private parties to conduct criminal contempt proceedings for the violation of a protective order.  At least fourteen states now permit private litigants to initiate contempt proceedings for such a violation.  Thus, although those laws are not being challenged here – the question presented has been limited to proceedings in congressionally created courts – domestic violence advocates are sure to follow this case closely.


In March 1999, petitioner John Robertson was charged with aggravated assault in the D.C. Superior Court.  Represented by the Office of the Corporation Counsel, respondent Wykenna Watson (the victim of the assault) filed for a civil protective order against him.  The following month, the Superior Court granted the protective order.  In June of the same year, Mr. Robertson again attacked Ms. Watson.  In July, he pleaded guilty to charges stemming from the first incident.  As part of the negotiated plea, the U.S. Attorney (who enforces both local and federal criminal laws in Washington, D.C.) agreed not to pursue any charges concerning the June incident.

In January 2000, Ms. Watson (again represented by the Corporation Counsel) filed a motion to hold Mr. Robertson in criminal contempt for violating the civil protective order with his second attack.  After a bench trial, the Superior Court found Mr. Robertson guilty of three counts of contempt.  Mr. Robertson subsequently sought to vacate his convictions for contempt on the grounds that, as criminal actions, they had actually been brought under the sovereign power of the United States, in violation of his plea agreement with the U.S. Attorney.  The D.C. Court of Appeals affirmed the convictions.

Mr. Robertson then filed a petition for certiorari, in which he argued that the appeals court’s holding that the criminal contempt statute allowed for a private right of action, brought in the name and interest of a private person, was both a misreading of the statutory text and constitutionally impermissible.  Opposing certiorari, Ms. Watson countered that the case was correctly decided, insufficiently important to merit certiorari, and a poor vehicle for deciding the question presented.  Asked to express its views, the United States encouraged the Court to deny certiorari.

The Arguments

In his merits briefs, Mr. Robertson emphasizes that criminal contempt is, as the Court indicated in United States v. Dixon (1993), a “crime in the ordinary sense.”  He argues that the ordinary sense of a crime is an action brought on behalf of the sovereign to vindicate the authority of a public institution – that is, as the Court has also said (in Gompers v. United States (1911)), an action “between the public and the defendant.”  The heart of Mr. Robertson’s argument is that only the United States can charge him with contempt of the D.C. Superior Court, and that, in doing so, the United States violated its promise not to pursue charges concerning his second encounter with Ms. Watson.

Mr. Robertson first argues that the history and text of the Constitution establish that crimes are “public wrongs” which must be prosecuted in the name of the sovereign.  Reviewing sources such as Locke, Blackstone, and the American common law tradition, Mr. Robertson concludes that there is “no doubt that the Framers contemplated that the government would be party to all criminal prosecutions,” an understanding which he traces through the Court’s constitutional jurisprudence.  Second, like all crimes, criminal contempt proceedings are actions between the public and the accused.  Citing Gompers for this principle, he argues that he has undoubtedly suffered criminal sanctions.  Moreover, a private action for criminal contempt would violate the separation of powers, by placing the decision whether to prosecute a criminal case – a traditional prerogative of executive power – into entirely non-governmental hands.

In her brief on the merits, Ms. Watson begins by describing the history and importance of civil protective orders to the struggle against domestic violence in the District of Columbia.  She goes on to argue that because the Constitution did not incorporate every element of the common law, and because the common law did not in any case include a settled understanding that criminal contempt proceedings must be brought in the name of the sovereign, Mr. Robertson’s arguments based in the constitutional definition of criminal law must fail.  And in any event, separation of powers principles do not apply to the District of Columbia and so cannot be violated by this statute, and the Fifth Amendment does not confer a due process right to be prosecuted only by the government.

In its amicus brief supporting the respondent, the United States argues that the prosecution of Mr. Robertson for contempt was indeed an exercise of sovereign power, but did not give rise to any constitutional issue nor violate the plea agreement.  The government first argues that although all criminal prosecutions should be understood as exercises of sovereign power, they need not be styled as such: “Proceeding in the name of the government promotes transparency and helps to ensure that the defendant receives adequate notice that the proceedings are criminal in nature.  The Constitution, however, is not concerned with technical rules governing pleading captions.”  The government then concedes that private actions for contempt may raise separation of powers concerns in other contexts, but it maintains that those concerns are obviated by Congress’s plenary authority over the District of Columbia, including the authority to delegate prosecutorial power outside of the executive branch.  Finally, the government argues that no due process claim is properly before the Court, and that the plea agreement only protected Mr. Robertson from prosecution by the U.S. Attorney, leaving him open to prosecution by other entities acting on behalf of the United States.