Williams International Corp. v. Smith

Cavanagh, J. INTRODUCTION Appellants in these consolidated cases challenge the validity of two civil contempt orders. The circuit judge found appellants in civil contempt of court for violating a June 29, 1983, permanent injunction enjoining them from trespassing on, and obstructing ingress or egress to, Williams International Corporation’s plant at Walled Lake, Michigan.1 The appellants were ordered incarcer [87] ated until they purged their contempt by promising to obey the injunction in the future. Appellants argue before this Court that their contempt was criminal and that the trial court’s sentencing discretion was therefore limited under MCL 600.1715(1); MSA 27A.1715(1) to imprisonment for a definite period, not in excess of thirty days, a $250 fine, or both. Alternately, they contend that if their contempt was civil in nature the trial court exceeded its authority by requiring a promise of future obedience to the court’s injunction as a means of purging their contempt. The requirement of this promise was further challenged as unauthorized by existing statutory law, contrary to the free speech and expression guarantees of the Michigan and federal constitutions, and as not being the least-restrictive alternative available to the trial court to protect Williams International’s legitimate property interests. We hold that the trial court erred in imposing a coercive sanction upon appellants for their trespass upon Williams’ land, a past violation of the trial court’s injunction. Since appellants were, at the time of the contempt hearing, in compliance with the injunction, it was beyond the power of the trial court to impose an indefinite, coercive sentence upon them. The trial court was limited to imposing a criminal sanction, after a properly conducted criminal contempt proceeding, or to issuing a civil contempt order compensating plaintiff for its actual losses. FACTS The Court of Appeals set forth the facts leading [88] to the issuance of the June 29, 1983, injunction as follows: Williams operates a manufacturing complex in Walled Lake, Michigan, with a physical plant consisting of 63 acres surrounded by an 8-foot-high fence. Part of the Walled Lake operations involves the manufacture of a gas turbine engine which the United States government uses in the cruise missile. The Walled Lake plant has been the object of demonstrations by appellants and others who protest Williams’ participation in the production of nuclear weapons. In May, 1983, certain individuals entered the premises by cutting the perimeter fence and spread ashes on the grounds and defaced the walls of buildings. Williams filed a complaint in the circuit court which resulted in a default judgment and a permanent injunction enjoining several individuals, including defendants-appellants Margaret Dewey and Peter Dougherty, and all persons acting in concert with them, from trespassing on and obstructing ingress and egress to Williams’ premises at Walled Lake.[2] These two cases concern violations of the permanent injunction which occurred on April 20, 1984,3 and June 11, 1984.4 Hearings were held before the trial court on the dates of the incidents, and appellants admitted that they did, with knowledge of the injunction, violate its provisions.5 The trial [89] court found all appellants in civil contempt of court and committed them to the Oakland County jail6 until they purged themselves of the contempt by promising to obey the court’s June 29, 1983, injunction in the future. The orders provided that upon purging their contempt they would be released from jail.7 The trial court additionally found the April 20 appellants in contempt of court for their conduct in court for "refusing to agree to refrain from violating” the injunctive order. The April 20, 1984, contemnors filed a claim of appeal with the Court of Appeals on April 30, 1984. On May 10, 1984, the Court of Appeals stayed the April contempt order and appellants were released from jail. Three of the four June contemnors executed stay bonds and were freed. The fourth, Margaret Dewey, was released from jail after conducting a fast and after the trial court determined that she was no longer capable [90] of violating the injunction. The June contemnors filed a claim of appeal with the Court of Appeals, which the Court consolidated with the April contemnors’ appeal. The Court of Appeals affirmed the contempt orders, finding that the proceedings were civil in nature because of the trial court’s expressed purpose to secure the contemnors’ future compliance with the injunction.8 Additionally, the Court of Appeals upheld the propriety of conditioning the release of the appellants upon their willingness to promise to abide by the injunction in the future.9 We granted appellants’ applications for leave to appeal. DISCUSSION i A The sui generis nature of contempt proceedings has often obfuscated the distinction between criminal and civil contempt.10 The confusion between criminal and civil contempt has resulted partly from the fact that all contempts may be said to be criminal in nature because they permit imprisoning a contemnor for wilfully failing to comply with an order of the court. Hence, legal authors and courts have stated that all contempts are "quasi-criminal” or "criminal in nature.”11 As one court aptly stated, "[a] contempt proceeding occupies [91] what may be termed the twilight zone between civil and criminal cases . . . .”12 The United States Supreme Court has recognized that contempts are "neither wholly civil nor altogether criminal,” Gompers v Bucks Stove & Range Co, 221 US 418, 441; 31 S Ct 492; 55 L Ed 797 (1911), and has stated that " 'it may not always be easy to classify a particular act as belonging to either one of these two classes.’ ” Id., quoting Bessette v W B Conkey Co, 194 US 324, 329; 24 S Ct 665; 48 L Ed 997 (1904). Although it may be difficult to distinguish between criminal and civil contempts, this distinction is often critical since a criminal contempt proceeding requires some, but not all, of the due process safeguards of an ordinary criminal trial13 and because the purpose sought to be achieved by imprisoning a civil contemnor (coercion) varies significantly from the purpose of imprisoning a criminal contemnor (punishment). Furthermore, Michigan statutory law limits a court’s sentencing discretion in all contempts, "except in those cases where the commitment is for the omission to perform an act or duty which is still within the power of the person to perform,” to thirty days imprisonment, or a fine of $250, or both. MCL 600.1715(1); MSA 27A.1715(1).14 As will be shown below, a commitment for the omission to perform [92] an act or duty that is within the power of the party to perform is the classical case of civil contempt that permits the use of a coercive sanction. The oft-cited case of Gompers, supra, is the leading case distinguishing between criminal and civil contempts. In Gompers, Samuel Gompers and several other labor union leaders were enjoined from boycotting Bucks Stove and Range Company and from publishing that Bucks Stove was on any "unfair” or "we don’t patronize” list. Gompers and two others engaged in acts that violated this injunction and Bucks Stove petitioned the trial court to hold them in contempt. After a hearing on the petition, the court found all three individuals in contempt of court and sentenced them to definite jail terms of six, nine, and twelve months. The United States Supreme Court reversed defendants’ contempt adjudications on the ground that the contempt proceeding was conducted as if it were civil, but the sentence meted out was fixed and wholly punitive and, therefore, criminal. Gompers, supra, 444. Bucks Stove’s petition for contempt was ordered dismissed without prejudice to the lower court’s entertaining proceedings for any criminal contempt committed against it. Id., 452. In distinguishing between criminal and civil contempts, the Gompers Court focused on the character and purpose of the punishment imposed upon the contemnors: It is not the fact of punishment but rather its character and purpose that often serve to distin [93] guish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. [Id., 441.] Although the Court recognized that a civil contempt proceeding may have a punitive, as well as remedial effect,15 the Court stated that imprisonment for civil contempt is properly ordered "where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character.” Id., 442. Examples given by the Supreme Court included the failure to pay alimony or surrender property as ordered and the failure to make a conveyance required by a decree for specific performance. Id. The Gompers Court stated that imprisonment for criminal contempt is different in character and purpose from civil contempt because it seeks to vindicate the authority of the court. Id. The Supreme Court determined that imprisonment for criminal contempt is appropriate where "the defendant does that which he has been commanded not to do . . . .” Id., 442. In such a case, "the disobedience is a thing accomplished.” Id. Expounding upon the purpose and character of imprisonment for criminal contempt, the Court stated: Imprisonment cannot undo or remedy what has been done nor afford any compensation for the pecuniary injury caused by the disobedience. If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates, not [94] as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience. [Id., 442-443.] After engaging in this analysis, the Supreme Court advanced the following test as determinative of the character of punishment: The distinction between refusing to do an act commanded, — remedied by imprisonment until the party performs the required act; and doing an act forbidden, — punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment. [Id., 443.] The United States Supreme Court has consistently observed this distinction in subsequent cases. See Shillitani v United States, 384 US 364, 368; 86 S Ct 1531; 16 L Ed 2d 622 (1966) (conditional imprisonment for purpose of compelling witnesses to obey orders to testify is civil contempt); Cheff v Schnackenberg, 384 US 373, 377; 86 S Ct 1523; 16 L Ed 2d 629 (1966) (former corporate president and chairman of the board could be found in criminal contempt only for violating a court order to obey a Federal Trade Commission cease and desist order because no remedial purpose could be served where the contemnor has severed relations with the corporation prior to the contempt proceeding); Yates v United States, 355 US 66, 72; 78 S Ct 128; 2 L Ed 2d 95 (1957) (imprisonment of witnesses who refuse to answer questions was criminal contempt where the sentences were not imposed for purposes of coercing answers but rather to punish witnesses for refusal); United States v United Mine Workers, 330 US 258, 302-303; 67 S Ct 677; 91 L Ed 884 (1947) (contemnors properly found in criminal con [95] tempt for violating the order of the court prohibiting miners from interfering with the operation of the mines by striking or ceasing work); Penfield Co v Securities & Exchange Comm, 330 US 585, 590; 67 S Ct 918; 91 L Ed 1117 (1947), reh den Penfield Co v SEC, 331 US 865 (1947) (civil contempt proceeding proper where sec sought enforcement of subpoena compelling production of documents).16 This Court has, in the past, distinguished criminal from civil contempt as follows: "If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment. In one case the private party is interested in the enforcement of the order, and, the moment he is satisfied, the imprisonment ceases. On the other hand, the State alone is interested, in the enforcement of the penalty, it being a [96] punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases.” [People ex rel Attorney General v Yarowsky, 236 Mich 169, 171-172; 210 NW 246 (1926), quoting State v Knight, 3 SD 509; 54 NW 412 (1893).] Although not citing Gompers, supra, the distinction set forth in Yarowsky is essentially that advanced in Gompers. See, also, Cross Co v UAW Local 155, 377 Mich 202, 210; 139 NW2d 694 (1966). (A contempt proceeding for violation of a temporary injunction enjoining the defendants from interfering with the ingress or egress to a plant was criminal in nature because the sentences imposed "were in the nature of punishment for offenses committed, not to enforce the performance of an act.”) The Legislature has codified the common-law power of courts to punish for contempt. See MCL 600.1701 et seq.; MSA 27A.1701 et seq.17 This statute provides as follows: (1) . . . punishment for contempt may be a fine of not more than $250.00, or imprisonment which, except in those cases where the commitment is for the omission to perform an act or duty which is still within the power of the person to perform shall not exceed 30 days, or both, in the discretion of the court. (2) If the contempt consists of the omission to perform some act or duty which is still within the power of the person to perform, the imprisonment shall be terminated when the person performs the act or duty or no longer has the power to perform the act or duty which shall be specified in the order of commitment and pays the fine, costs, and expenses of the proceedings which shall be specified in the order of commitment. [MCL 600.1715; MSA 27A.1715,]_ [97] This codification of the common-law power to punish contempts implicitly recognizes the distinction between doing an act forbidden by court order and refusing or omitting to perform an act commanded by court order. Only where the "contempt consists of the omission to perform some act or duty which is still within the power of the person to perform,” does the Legislature authorize an indefinite, coercive sentence. Where the contempt involves committing an act forbidden by the court, this statute limits the possible sanction to thirty days imprisonment, a $250 fine, or both. This sanction is not coercive, but rather is permitted as punishment for violating a court order. B However, the test for distinguishing between refusing to do an act commanded, which would permit a coercive remedy, and doing an act forbidden, allowing only punishment for the completed act of disobedience, affords only a general test to determine the character of the punishment. The Supreme Court itself recognized that this test was not "universal ].” See Gompers, supra, 443. What this test fails to recognize is that there are two types of civil contempt sanctions, coercive and compensatory. MCL 600.1721; MSA 27A.1721 codifies the compensatory sanction: If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury. [98] The distinction between these two civil contempt sanctions was discussed in United Mine Workers, supra, 303-304, where the United States Supreme Court stated: Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant’s actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy. But where the purpose is to make the defendant comply, the court’s discretion is otherwise exercised. It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired. [Citations omitted.] See, also, Fink, Basic issues in civil contempt, 8 NM L R 55, 70-77 (1977-78). Thus, there are three sanctions which may be available to a court to remedy or redress contemptuous behavior: (1) criminal punishment to vindicate the court’s authority; (2) coercion, to force compliance with the order; and (3) compensatory relief to the complainant. In order to determine whether a coercive sanction is available to remedy contemptuous behavior, it may be necessary to look beyond whether the contemnor refused to do an act commanded, or has done an act forbidden. Certainly, when the contemnor is ordered to engage in a certain act, and fails to do so, under Gompers, and pursuant to [99] MCL 600.1715; MSA 27A.1715, the court may use a coercive sanction. However, the converse, that the doing of an act forbidden does not permit a coercive sanction, is not always true. It may be that a contemnor, who has done that which is prohibited by court order, may be properly subjected to a coercive sanction. In such a case, as in all cases where a coercive sanction is appropriate, the proper focus is whether there is some act that can be coerced by the sanction so that the contemnor’s performance of the act will put him into compliance with the underlying order. See Dobbs, Contempt of court: A survey, 56 Cornell LR 183, 235-236, 240 (1971); Fink, supra, 58, 60-61, 70-77. This focus was recognized by the Supreme Court when it stated that "[¡judicial sanctions in civil contempt proceedings may, in a proper case, be employed ... to coerce the defendant into compliance with the court’s order . . . .” United Mine Workers, supra, 303. See, also, Gompers, supra, 442, where it was said that a coercive sanction "is intended to coerce the defendant to do the thing referred by the order for the benefit of the complainant.” What is apparent from cases such as Gompers and United Mine Workers is that a coercive sanction is proper where the contemnor, at the time of the contempt hearing, is under a present duty to comply with the order and is in present violation of the order. Where the contemnor is not in present violation of the order, there is no need to coerce compliance, since, of course, there is already compliance. An example may be helpful. A court enjoins a defendant from striking. The defendant strikes and a contempt hearing is held. At the hearing defendant is under duty to obey the order and, if he is still on strike, is presently violating the order. Therefore, a coercive sanction, [100] such as a $100 fine for each day he remains on strike, is entirely proper. However, where there is only a past duty to obey the court order, or a present duty, but only a past violation of the order, a coercive sanction is not permissible. It is not a proper sanction because there is nothing to coerce. In fact, defendant is, at the time of the hearing, either in actual compliance with the order, or under no present duty to comply. In such a case the court is limited to imposing a criminal sanction, after a properly conducted criminal contempt proceeding, or issuing a civil contempt order compensating the complainant for actual losses. Similarly, where there is a present and future duty, or only a future duty, and no present violation of the order, a coercive sanction is not permissible. This analysis explains the result reached in United Mine Workers. In that case, the Supreme Court upheld the trial court’s finding that the contemnors, the union, and its president were in civil as well as criminal contempt of court for violating a temporary order enjoining them from encouraging the mine workers to interfere with the operation of the mines by striking or ceasing work.18 [101] A close reading of United Mine Workers reveals that the union and its president were in present violation of the injunction at the time of the contempt hearing. The union and its president were in present violation because they had notified the Secretary of the Interior that an agreement reached between the secretary and the union president, known as the Krug-Lewis Agreement, was being terminated by the union. Furthermore, Lewis, as the union president, mailed a letter to union members informing them that the union had terminated the agreement. The effect of this was to encourage miners to interfere with the operation of the mines by work stoppage or strike. [102] In fact, within days of the mailing of the letter to the union members, a general walkout occurred, turning into a full-blown strike. Since the defendants maintained their position that they had authority to terminate the Krug-Lewis Agreement and had not rescinded the notice to the miners that the agreement was terminated, they were in present violation of the injunction because they were encouraging the miners to interfere with the operation of the mines. Thus, their contemptuous behavior could be remedied by a coercive remedy. Moreover, there were acts that could be coerced by the conditional fine imposed upon the defendants. The Supreme Court stated that the defendants could comply with the injunction, and purge their contempt, by withdrawing unconditionally the notice given by it, . . . terminating the Krug-Lewis agreement . . . and by notifying, at the same time, its members of such withdrawal . . . and similarly instructing the members of the defendant union of the withdrawal of any other notice to the effect that the Krug-Lewis agreement is not in full force and effect until the final determination of the basic issues arising under the said agreement. [Id., 305.] Unlike the defendants in United Mine Workers, the Williams International protesters were not in present violation of the injunction at the time of the contempt hearing. They were only in past violation of the injunction. Furthermore, there was no act that could be coerced that would put defendants into compliance with the injunction. The injunction prohibited trespassing and defendants were not trespassing at the time of the contempt hearing. Therefore, any coercive sanction would accomplish nothing, and the only appropriate [103] sanction for their contemptuous behavior is criminal, after an appropriate criminal proceeding, or a civil order of compensation indemnifying plaintiff for any actual damage or loss it sustained.19 [104] Our holding that a coercive sanction is proper only when the contemnor, at the time of the contempt proceeding, is in present violation of the court’s order, has support in cases which have addressed the issue of anticipatory contempt. In United States v Johnson, 736 F2d 358 (CA 6, 1984), Timothy Neal was arrested and indicted by a grand jury for bank robbery. Neal entered into a plea bargaining agreement with the federal government wherein he would receive no more than seven years imprisonment if he testified against his partners in the robbery. Neal testified before the grand jury, and his partners, including Johnson, were indicted. On the date Neal was to plead guilty, he indicated that he had changed his mind and would not plead guilty. The government adjourned his partners’ trial, and, after Neal was found guilty of bank robbery in a jury trial, the government filed a motion to compel his testimony and to hold him in civil contempt for refusing to testify. At this hearing, Neal indicated that he would not testify because of threats against his family and himself. After he refused to testify, the district court found him in civil contempt and incarcerated him for an indefinite time. Johnson, supra, 359-360. On appeal, the Sixth Circuit reversed, determin [105] ing that Neal was incarcerated on the basis of "his statement that he will in the future refuse to testify at a trial that has not yet begun.” Id., 360. The Sixth Circuit found that this "anticipatory contempt” was an improper use of the court’s contempt power. Johnson further noted: Imposing coercive imprisonment upon the statement that testimony will not be given in the future is certainly a greater exercise of power than imposing a similar sanction upon an actual demand for, and refusal of, testimony. . . . The inquiry by the court as to whether the witness will testify at a future date is itself an exercise of power not normally used in contempt proceedings. [Id., 363.] Furthermore, the Johnson court pointed out that had Neal agreed to testify upon the threat of anticipatory contempt, there would be no guarantee that he would testify and, therefore, no benefit to the prosecutor from the promise. Id., 363. Johnson relied upon United States v Bryan, 339 US 323; 70 S Ct 724; 94 L Ed 884 (1950), reh den 339 US 991 (1950), in repudiating the concept of anticipatory contempt. In Bryan, the Supreme Court reviewed a conviction of criminal contempt of Congress based upon a refusal to produce documents requested by a subpoena duces tecum. The Bryan Court, 341, stated: The offense of contempt of Congress, with which we are presently concerned, on the other hand, matures only when the witness is called to appear before the committee to answer questions or produce documents and wilfully fails to do so. Until that moment he has committed no crime. There is, in our jurisprudence, no doctrine of "anticipatory contempt.” [106] The Johnson court read Bryan as indicating that the Supreme Court would not have affirmed the contempt of Congress conviction "had the defendant merely stated an intention not to comply before the subpoena required her presence: " 'Of course a witness may always change his mind. A default does not mature until the return date of the subpoena, whatever the previous manifestations of intent to default.’” Johnson, supra, 364, quoting Bryan, supra, 330. (Emphasis added by the Johnson court.) That the mere intent to act in violation of a court’s order cannot be punished as a contempt is clear from the Supreme Court’s opinion in In re McConnell, 370 US 230; 82 S Ct 1288; 8 L Ed 2d 434 (1962). In that case an attorney demanded to make an offer of proof pursuant to the Federal Rules of Civil Procedure. The trial judge denied the attorney the opportunity. The attorney stated that he would do so unless stopped by the bailiff. After a brief recess, the attorney did not attempt to make his offer of proof. Nevertheless, the trial court held him in contempt of court for obstruction of justice. The Supreme Court reversed the contempt finding, stating: [T]he bailiff never had to interrupt the trial by arresting petitioner, for the simple reason that after [his initial] statement petitioner never did ask any more questions along the line which the judge had forbidden. And we cannot agree that a mere statement by a lawyer of his intention . . . can be punished under the limited powers of summary contempt .... [Id., 236.] What the anticipatory contempt cases of Johnson and Bryan and the Supreme Court opinion in McConnell teach is that it is beyond the power of a court to exercise its contempt power where a party [107] has indicated only that it intends not to comply with the court’s order in the future. In the present case the trial court imposed a coercive sanction upon the appellants for not promising to obey the court’s injunction in the future. However, the mere intention to disobey the order in the future does not mean that the appellants will, in fact, violate the order. Although the past violation may be sanctioned by punishment or a compensatory fine, the use of a coercive sanction to compel future compliance, when the contemnor is presently in compliance, suffers from the same flaws as using the contempt power to punish a future intent to violate an order. Like the Supreme Court, we cannot agree that a mere statement of intent to violate an order in the future is subject to a court’s contempt powers, including the power of a coercive sanction where the contemnor is in compliance with the order, but does not agree to comply with the order in the future. c The analysis that we advance, looking to whether the contemnor, at the time of the contempt hearing, is presently in violation of the order, explains the results reached in our own cases. In Yarowsky, supra, a chancery proceeding was brought by the Attorney General to abate a public nuisance, a house of prostitution. The circuit court declared the house a nuisance and, amongst other relief awarded the Attorney General, enjoined the homeowners and Grace Smith, operator of the premises, from conducting, maintaining, or operating those or other premises for purposes of prostitution. Id., 170. Smith was later adjudged guilty of contempt for violating the injunction by operating a house of prostitution at [108] another location and sentenced to a determinate sentence of three months in the county jail. Although it is not entirely clear from the facts in the case, it is likely that the police closed down Smith’s operation of the second house of prostitution. Thus, at the time of the contempt hearing, Smith was not in present violation of the injunction, having violated the injunction only in the past. Hence, it was appropriate for the Court to impose a determinate, criminal sanction upon Smith. It would have been improper to impose a coercive sanction. In Great Lakes Greyhound Lines v Int’l Union, UAW-CIO, 341 Mich 290; 67 NW2d 105 (1954), app dis 350 US 804 (1955), the defendants, including several individual officers of the union, were temporarily enjoined from establishing or maintaining a picket line at the plaintiffs garages. The plaintiff petitioned for an order to show cause to hold the defendants in contempt of court when they violated the temporary injunction. At a hearing on the petition, the trial court suggested that the pickets be withdrawn and the parties enter into negotiations. At this point, it would have been proper for the court to impose a coercive sanction; the defendants were maintaining a picket line at the time of the contempt hearing and were therefore presently violating the injunction. However, the court sought to encourage the parties to settle the strike. Upon reconvening the contempt hearing, counsel for both the plaintiff and the defendants indicated that they had negotiated a settlement to the strike. However, the trial court denied a request that the court dismiss the contempt proceedings, stating that it would punish the defendants for violating the court’s injunction. Id., 301. This Court upheld the findings of contempt ex [109] cept for that of one defendant who did not have knowledge of the injunction. Since the defendants had violated the court’s order, it was permissible for the court to impose a criminal sanction in order to vindicate its authority. However, it would have been improper to impose a coercive remedy since the strike was settled and the defendants were in present compliance with the injunction. Williams International cites State Bar of Michigan v Cramer, 399 Mich 116; 249 NW2d 1 (1976), and In re Huff, 352 Mich 402; 91 NW2d 613 (1958), in support of its argument that a promise of future compliance with a prior court order is a common and appropriate method of purging, contempt. We do not read these cases as supporting such an argument. In neither Huff, nor Cramer did defendants challenge the court’s authority to compel a promise to abide by the injunction in the future. Hence, the issue of the propriety of such a promise was not before the court. Additionally, in Cramer the defendant was in present violation of the court’s order enjoining her from engaging in the unauthorized practice of law. "There is no doubt that defendant continued to violate the January 5 order, and, indeed is still doing so.” Cramer, supra, 126. Thus, even at the time this Court reviewed defendant’s contempt findings, she was presently violating the order. Therefore, it was entirely proper, as this Court recognized, for the trial judge to find her in civil contempt and impose a coercive remedy. Likewise, in Huff, the defendant was in violation of this Court’s order at the time of the contempt hearing. Pursuant to an order of this Court, the court administrator assigned Judge Eugene Snow Huff to the Third District (he was elected as Judge of the Tenth District) from May 12 through June [110] 12, 1958, and assigned Circuit Judge Timothy C. Quinn as presiding judge in the Tenth Circuit. Judge Huff wrote the court administrator, stating that he would not accept assignment to the Third District and intended to remain as presiding judge of the Tenth Circuit. At the opening of court on May 12, 1958, Judge Huff stated in open court that he was continuing as presiding judge of the Tenth Circuit. This Court held a show cause hearing on May 16, 1958, wherein it was established that Judge Huff failed to comply with this Court’s order on May 12, 1958, and that he had not reported to the Third District for assignment. Hence, on May 16, 1958, Judge Huff was in present violation of this Court’s order because he had not accepted assignment to the Third Judicial District. Thus, it would have been proper to impose a coercive sanction. Although a coercive sanction would have been proper, this Court fined defendant $250 payable to the clerk of the Supreme Court and ordered him to serve as judge in the Third Judicial Circuit for four weeks. The $250 fine does not appear to have been conditioned upon Judge Huff accepting his assignment in the Third Judicial District. (To the extent that the fine was not conditional, it was criminal and erroneously imposed upon Judge Huff because of the lack of a proper criminal proceeding.) ii The circuit judge in this case found defendants in civil contempt of court for violating a permanent injunction prohibiting them from trespassing on Williams International’s property and from interfering with the ingress and egress of employees. The trial court imposed a civil coercive rem [111] edy, sentencing defendants to jail until they promised not to violate the injunction in the future. While it is clear the trial court was seeking a way to secure the property rights of Williams International, by imposing a coercive sanction when appellants were in compliance with the injunction, the trial court exceeded its civil contempt authority. The trial court’s requirement of a promise in order to purge the defendants of their past misconduct was improper as it could not undo what had already been done.20 A proper civil contempt proceeding seeks to coerce compliance with an act commanded by prior court order, or to compensate the complainant for actual loss. Only where the contemnor, at the time of the contempt hearing, is in violation of an order, is a coercive sanction permissible. The Williams International protesters, however, were in actual compliance with the court’s order enjoining them from trespassing on Williams’ property at the time of the contempt heáring. Requiring a promise to coerce future compliance with the injunction is not only impermissible, but is also of questionable value. Unlike the present defendants who have, as a matter of conscience, refused to make the promise, many people subject to such coercion might naturally make the required promise to avoid incarceration. They then either will keep their promise or violate it. If they do not keep their promise, another contempt proceeding will have to be instituted. The trial court will face the same problem of having to secure compliance with its previous order. If the court again requires a promise of future compliance, the contemnor may again make the promise and either obey or [112] disobey it. If the order is disobeyed, the contemnor has twice violated the court’s order without having suffered any sanction. Hence, the civil remedy of requiring a promise to purge the contempt is largely ineffective and may serve only to call into question a court’s authority. Therefore, entirely apart from the legality of the sanction, a more effective sanction for such past misconduct is a definite sentence for criminal contempt,21 or a civil contempt order requiring appellants to compensate Williams International for any actual loss sustained by appellants’ violation of the court’s injunction. CONCLUSION The Williams International protesters were enjoined from trespassing upon Williams’ land and from interfering with the ingress and egress of persons lawfully upon the land. They admittedly violated this injunction and were therefore subject to criminal contempt of court, or a civil order requiring them to compensate Williams International. However, it was improper to proceed against appellants for civil contempt of court, then [113] to inquire whether they would obey the order in the future, and sanction them, by incarcerating them in jail indefinitely, for refusing to promise to obey the court’s order. Since appellants’ past misconduct was a thing accomplished, and they were no longer in violation of the injunction, there could be no coercive sanction. The trial court’s orders of April 20, 1984, and June 11, 1984, finding appellants in civil contempt of court, and imposing a coercive sanction, are ordered vacated. Levin, Brickley, and Archer, JJ., concurred with Cavanagh, J. Footnotes [1] Appellants Peter Dougherty, James Smith, and Margaret Dewey were named defendants in the June 29, 1983, injunctive order. As is typical of such injunctive orders it provided that "all persons acting in concert with [the named defendants]” were restrained from tres [87] passing and obstructing ingress or egress to Williams’ property. The trial court determined that the remaining appellants in this case were acting in concert with the named defendants. [2] Williams Int’l Corp v Smith, 144 Mich App 257, 259; 375 NW2d 408 (1985). [3] Supreme Court Docket No. 77337. [4] Supreme Court Docket No. 77338. [5] Appellants in Docket No. 77337 admit that on Good Friday, April 20, 1984, they carried a wooden cross onto Williams International’s property, stretched a chain between themselves, and poured their blood onto the driveway. Williams International asserts that the appellants further defaced its property by smearing a red substance on the fence enclosing the facility. Appellants in Supreme Court Docket No. 77338 admit that on June li, 1984, they trespassed upon Williams International’s driveway and engaged in prayer. Williams [89] contends that the June 11, 1984, appellants attempted to lock the facility gate with an elaborate padlock, blocking the ingress and egress of its employees. [6] All appellants except for Joel Nigg and Carfon Foltz were incarcerated from twenty-one to ninety-six days. The trial court determined that Joel Nigg purged himself by making certain statements that indicated he would abide by the injunction. Carfon Foltz was not incarcerated because of health concerns. None of the appellants are currently incarcerated. [7] The language used by the trial court in requiring a promise to purge the contempts differed in the two contempt orders. The contempt order concerning the April 20, 1984, incident stated that appellants were to remain in jail "until they have purged themselves of contempt by agreeing to be bound by the Judgment of Permanent Injunction of this Court entered on June 29, 1983.” The June 11, 1984, contempt order provided, in part, that "each Respondent shall hold the keys to his jail cell, in that he or she shall remain committed to the Oakland County Jail until he or she shall purge himself or herself of contempt by demonstrating that he or she will discharge his or her statutory and judicially imposed duty to cease permanently from engaging in the conduct proscribed by this Court’s judgment entered on June 29, 1983.” It is clear from the colloquy between the trial court and defendants that if defendants promised to abide by the injunction in the future their contempts would be purged. [8] 144 Mich App 263-264. [9] Id. [10] See Bessette v W B Conkey Co, 194 US 324, 326; 24 S Ct 665; 48 L Ed 997 (1904); Moskovitz, Contempt of injunctions, civil and criminal, 43 Colum LR 780 (1943); Dobbs, Contempt of court: A survey, 56 Cornell LR 183, 235 (1971). [11] Moskovitz, n 10 supra, 783-784; Bessette, n 10 supra, 326. [12] Andreano v Utterback, 202 Iowa 570, 571; 210 NW 780 (1926). [13] Gompers, supra, 444; Bloom v Illinois, 391 US 194; 88 S Ct 1477; 20 L Ed 2d 522 (1968); In re Scott, 342 Mich 614, 618-622; 71 NW2d 71 (1955); Cross Co v UAW Local 155, 377 Mich 202, 211-213; 139 NW2d 694 (1966); cf. Sword v Sword, 399 Mich 367, 379-388; 249 NW2d 88 (1976) (neither appointed counsel nor a jury trial is constitutionally required in civil nonsupport contempt proceedings). [14] Michigan courts have, as an inherent power, the power at common law to punish all contempts of court. In re Scott, n 13 supra, 618. This contempt power inheres in the judicial power vested in this Court, the Court of Appeals, and the circuit and probate courts by Const 1963, art 6, § 1. See, generally, In re Scott, n 13 supra; In re Huff, 352 Mich 402; 91 NW2d 613 (1958); Cross Co v UAW, n 13 [92] supra. Therefore, statutory provisions such as MCL 600.1715; MSA 27A.1715 are merely declaratory of the courts’ contempt powers and do not restrict or abridge those powers. Langdon v Wayne Circuit Judges, 76 Mich 358, 367; 43 NW 310 (1889); Nichols v Judge of Superior Court, 130 Mich 187; 89 NW 691 (1902); Cross Co, n 13 supra, 223. [15] Gompers, supra, 441. [16] Other jurisdictions have observed the Gompers distinction between refusing to do an act commanded and doing an act forbidden. See, e.g., DeMartino v Monroe Little League, Inc, 192 Conn 271, 277-280; 471 A2d 638 (1984); Korman v Strick, 133 Ariz 471, 473-474; 652 P2d 544 (1982); Fields v Fields, 240 Ga 173, 175-176; 240 SE2d 58 (1977); In re Lightsey v Kensington Mortgage & Finance Corp, 294 Ala 281, 285-286; 315 So 2d 431 (1975); Johansen v Alaska, 491 P2d 759, 763-764 (Alas, 1971); People ex rel Chicago Bar Ass’n v Barasch, 21 Ill 2d 407; 173 NE2d 417 (1961); South Dade Farms v Peters, 88 So 2d 891, 898-899 (Fla, 1956); Denny v State, 203 Ind 682, 702-704; 182 NE 313 (1932); cf. Culver City v Los Angeles Co Superior Court, 38 Cal 2d 535; 241 P2d 258 (1952) (in California the distinction between civil and criminal contempt is not critical since the proceedings for criminal and civil contempt are the same with those procedural rights and safeguards appropriate for criminal contempt afforded in civil contempt proceedings). [17] See n 14 supra. [18] One contempt scholar has written that "the majority opinion in the United Mine Workers case must be regarded as unfortunate.” Fink, supra, p 64. Professor Fink thought it was unfortunate that United Mine Workers failed to follow "[t]he rule in Gompers that not only civil and criminal penalties but also civil and criminal proceedings are altogether different and separate things, and under the Constitution must be kept so . . . .” Id. Justice Rutledge dissented in United Mine Workers, finding that "the idea that a criminal prosecution and a civil suit for damages or equitable relief could be hashed together in a single criminal-civil hodgepodge would be shocking to every American lawyer and to most citizens.” Id., 364. [101] Justice Rutledge further opined: I do not think the Constitution contemplated that there should be in any case an admixture of civil and criminal proceedings in one. Such an idea is altogether foreign to its spirit. There can be no question that contempt power was conferred adequate to sustain the judicial function, in both civil and criminal forms. But it does not follow that the Constitution permits lumping the two together or discarding for the criminal one all of the procedural safeguards so carefully provided for every other such proceeding. The founders did not command the impossible. They could not have conceived that procedures so irreconcilably inconsistent in many ways could be applied simultaneously. Nor was their purpose to create any part of judicial power, even in contempt, wholly at large, free from any constitutional limitation or to pick and choose between the conflicting civil and criminal procedures and remedies at will. Much less was it to allow mixing civil remedies and criminal punishments in one lumped form of relief, indistinguishably compounding them and thus putting both in unlimited judicial discretion, with no possibility of applying any standard of measurement on review. [Id., 364-365.] One explanation for the "criminal-civil hodgepodge” that the majority opinion concocted was that the United States was both plaintiff-employer seeking remedial relief and was also acting in its sovereign capacity seeking to vindicate the court’s authority. This fact does not support the wholesale nullification of constitutional limitations upon a court’s contempt power. See United Mine Workers, supra, 364-385 (Rutledge, J., dissenting). We caution trial courts from combining criminal and civil contempt proceedings as it may cause undue confusion and complications. See Dobbs, Remedies, p 98. [19] The dissent and plaintiff have failed, with one possible exception, to cite a single case in which a coercive remedy was used absent a present violation of the court’s order. The only case cited that arguably supports their positions is Lance v Plummer, 353 F2d 585 (CA 5, 1965). Lance may be read as permitting a court to coerce promises of future compliance where there is not a present violation of the court’s order. However, the special interest of the state in protecting the integrity of the state’s authority may also explain the rationale behind permitting the state to terminate plaintiffs appointment as a voluntary deputy sheriff. We reject the holding of Lance to the extent that it may be read as permitting a coercive sanction absent a present violation of the court’s order. Our research has also disclosed the case of Neshaminy Water Resources v Del-Aware Unlimited, 332 Pa Super 461; 481 A2d 879 (1984), where, on similar facts, the Court upheld a civil contempt finding. Although the proceedings were challenged by the contemnors as being criminal in nature, the court’s analysis of this issue was incomplete, failing to recognize the limitations upon a court’s power to impose a coercive sanction absent a present violation of the court’s order. The dissent also cites Dobbs, supra, 56 Cornell LR 239-240, as authority. In that article Professor Dobbs sets forth two hypothetical orders prohibiting defendants from engaging in certain conduct. The second hypothetical order involves an injunction similar to that in the present case: an order enjoining trespass for all future times. According to Professor Dobbs, "[i]f a defendant so enjoined violates the order once, there is still something left to coerce; a civil contempt would therefore be appropriate since it could be used to compel compliance for the future . . . .” Id., 240. However, in a later work, Professor Dobbs retreats from his statement that it is appropriate to coerce future conduct when the violation of the injunction has occurred only in the past. He uses a similar May Day hypothetical case in his treatise on remedies. This time the defendant is enjoined from marching in a May Day parade. Again, Professor Dobbs states that a criminal sanction is the only permissible sanction should defendant violate the injunction since "there is nothing left to coerce.” Dobbs, Remedies, p 98. What is interesting is that Professor Dobbs does not contend that a violation of an order enjoining trespass at all future times may be remedied by a coercive sanction in order to compel future compliance. Rather, Professor Dobbs uses two hypothetical cases that involve a present violation of a court’s order, as opposed to a present duty and only a past violation of the order: [104] On the other hand, if the defendant is enjoined from using the plaintiffs trade name, or ordered to turn over property to the plaintiff, and he disobeys either injunction, a coercive or remedial sanction — which is to say, a "civil” one — is appropriate. The judge also has the power to vindicate the court’s authority at the same time, and he might decide to include criminal punishment either in addition to the coercive order, or instead of it. This may not be advisable; it is probably unnecessary and it adds complications. [Id] We reject Professor Dobbs’ earlier view that it is proper to coerce future conduct absent a present violation of a court’s order as erroneous and without authoritative support. It is erroneous for the simple reason that where there is compliance with the order, there is nothing left to coerce. [20] In addition, the requirement of a promise to abide by the injunction in the future in order to purge past misconduct raises serious First Amendment concerns which we need not address here. [21] Among the factors to be considered by a court in imposing a fine for criminal contempt is "the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future.” United Mine Workers, supra, 303. Likewise, in considering the length of imprisonment for criminal contempt, a judge may properly consider the contemnor’s expressed willingness not to violate the order in the future. The courts of this state have ample authority to punish for past misconduct, but, in a civil contempt proceeding, they are not empowered to coerce an individual into compliance unless there is a present violation of the court order. We do not address the issue whether the thirty-day limitation of MCL 600.1715(1); MSA 27A.1715(1) for criminal contempt improperly restricts a court’s common-law power to punish for contempt. See n 14 supra. Furthermore, any argument that the thirty-day limitation on incarceration is insufficient to dissuade persons from repeated violations of the same court order should be addressed to the Legislature.