997 N.W.2d 511
Mich. Ct. App.2022Background:
- MDARD suspended Marlena’s food-establishment license after finding willful violations of COVID-19 public-health orders; Marlena’s continued to operate.
- MDARD obtained an ex parte temporary restraining order (TRO) and sought a preliminary injunction; the TRO was personally served on Marlena’s owner, Marlena Pavlos-Hackney.
- Marlena’s ignored administrative and court orders; MDARD documented ongoing service (including a purchase) and public statements refusing to close.
- The trial court held Marlena’s and Pavlos-Hackney in contempt, imposing a $7,500 fine, converting the TRO to a preliminary injunction, and threatening incarceration until compliance; a second $7,500 contempt fine followed and Pavlos-Hackney was briefly jailed.
- Contemnors sought relief arguing jurisdictional defects, transcript/recording errors, denial of due process, and excessive fines; the trial court denied relief and the contemnors appealed.
- The Court of Appeals affirmed the contempts but remanded for the trial court to refashion the second $7,500 fine to make its civil remedial nature clear (reimburse MDARD, refund, or partial combination).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / Venue | Ingham court properly exercised jurisdiction; venue was not timely challenged | Case should have been in Allegan; trial court lacked subject-matter jurisdiction | Defendant’s venue challenge was waived; trial court had personal jurisdiction over Marlena’s and Pavlos-Hackney |
| Civil vs. Criminal Contempt | Contempts were civil/coercive to compel compliance and protect public health | Contempts were punitive (criminal), requiring greater protections | Contempts were civil in nature; coercive fines and conditional incarceration appropriate |
| Adequacy of Due Process | Contemnors received notice and opportunity to be heard; they had time to retain counsel | Contemnors were denied meaningful opportunity to prepare, counsel problems, transcript errors | Due process satisfied: notice and chance to present a defense were provided; failures to prepare were the contemnors’ choice |
| Access to Recordings & Transcript Accuracy | Transcripts presumed accurate; no entitlement to video recording under local administrative order | Entitled to recordings and corrected transcript; alleged errors prejudiced rights | No showing of prejudicial inaccuracies or entitlement to recordings; motion denied |
| Propriety & Amount of Fines | Fines necessary to coerce compliance and protect public health | Fines excessive, statutory limits exceeded, should be refunded | First $7,500 coercive fine upheld; second $7,500 remanded to be refashioned as a civil remedial sanction (reimburse MDARD, refund, or partial credit) |
Key Cases Cited
- In re JCB, 336 Mich. App. 736 (retrial of original controversy barred in contempt proceedings)
- United States v. Rylander, 460 U.S. 752 (contempt proceedings do not reopen merits of underlying order)
- In re Contempt of Auto Club Ins. Ass'n, 243 Mich. App. 697 (distinguishing civil and criminal contempt and related due-process protections)
- In re Contempt of Dougherty, 429 Mich. 81 (civil contempts as conditional confinement; punitive/ criminal distinctions)
- Porter v. Porter, 285 Mich. App. 450 (burden and proof standard for civil contempt)
- Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624 (civil contempt fines should be avoidable by compliance)