Saturday, April 04, 2009
2009-2010 S. BILL 411: UNIFORM PROCEDURE FOR EXPUNGING CRIMINAL RECORDS
The South Carolina Senate has reintroduced Uniform Expungement of Criminal Records Act. There are still no provisions in this Bill for expunging Civil Contempt arrest records, even in cases in which the Trial Courts' Orders were overturned.
Labels: Civil Contempt, Expungment
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So what happened to that fella couldn't happen to me if this bill was changed to include civil contempt matters, do I have that right?
http://www.sccourts.org/opinions/HTMLFiles/COA/4434.htm
Capps v. South Carolina Department of Transportation, App. Ct. (2008) Op. No. 4434
[…] If the primary purpose of the sanctions imposed is to preserve the court’s authority and to punish for disobedience of its orders, the contempt is considered criminal. Id. at 128, 447 S.E.2d at 217. Conversely, if the purpose of the sanctions is to coerce obedience to a court order, the contempt is civil. Id. at 129, 447 S.E.2d at 217. […] “The determination of whether contempt is criminal or civil depends upon the underlying purpose of the contempt ruling.” Miller, 375 S.C. at 456, 652 S.E.2d at 761. “In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both: when a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law’s purpose of modifying the contemnor’s behavior to conform to the terms required in the order.” Hicks v. Feiock, 485 U.S. 624, 635 (1988). “If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine.” Miller, 375 S.C. at 457, 652 S.E.2d at 761 (citing Floyd v. Floyd, 365 S.C. 56, 75-76, 615 S.E.2d 465, 475-76 (Ct. App. 2005)).
http://www.sccourts.org/opinions/htmlfiles/coa/3428.htm
Jenkins v. Nissan Car Mart, Inc., App. Ct. (2001) Op. No. 3428
[…] We note and emphasize that South Carolina law does not permit a person to be held in contempt for failure to pay a civil debt, which has arisen solely out of a contractual obligation. Sanders v. Sanders, 30 S.C. 229, 9 S.E. 97 (1889). Furthermore, the Constitution of South Carolina provides "[n]o person shall be imprisoned for debt except in cases of fraud." S.C. Const. art. I, § 19; see also Carter v. Lynch, 429 F.2d 154 (4th Cir. 1970); Stidham v. DuBose, 128 S.C. 318, 121 S.E. 791 (1924).
http://www.law.cornell.edu/supct/search/display.html?terms=civil%20and%20criminal%20contempt&url=/supct/html/92-1625.ZO.html
International Union, UAW v. Bagwell (92-1625), 512 U.S. 821 (1994).
[… ] The union's ability to avoid the contempt fines was indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law. The fines are not coercive day fines, or even suspended fines, but are more closely analogous to fixed, determinate, retrospective criminal fines which petitioners had no opportunity to purge once imposed. We therefore decline to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law.
Capps v. South Carolina Department of Transportation, App. Ct. (2008) Op. No. 4434
[…] If the primary purpose of the sanctions imposed is to preserve the court’s authority and to punish for disobedience of its orders, the contempt is considered criminal. Id. at 128, 447 S.E.2d at 217. Conversely, if the purpose of the sanctions is to coerce obedience to a court order, the contempt is civil. Id. at 129, 447 S.E.2d at 217. […] “The determination of whether contempt is criminal or civil depends upon the underlying purpose of the contempt ruling.” Miller, 375 S.C. at 456, 652 S.E.2d at 761. “In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both: when a court imposes fines and punishments on a contemnor, it is not only vindicating its legal authority to enter the initial court order, but it also is seeking to give effect to the law’s purpose of modifying the contemnor’s behavior to conform to the terms required in the order.” Hicks v. Feiock, 485 U.S. 624, 635 (1988). “If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine.” Miller, 375 S.C. at 457, 652 S.E.2d at 761 (citing Floyd v. Floyd, 365 S.C. 56, 75-76, 615 S.E.2d 465, 475-76 (Ct. App. 2005)).
http://www.sccourts.org/opinions/htmlfiles/coa/3428.htm
Jenkins v. Nissan Car Mart, Inc., App. Ct. (2001) Op. No. 3428
[…] We note and emphasize that South Carolina law does not permit a person to be held in contempt for failure to pay a civil debt, which has arisen solely out of a contractual obligation. Sanders v. Sanders, 30 S.C. 229, 9 S.E. 97 (1889). Furthermore, the Constitution of South Carolina provides "[n]o person shall be imprisoned for debt except in cases of fraud." S.C. Const. art. I, § 19; see also Carter v. Lynch, 429 F.2d 154 (4th Cir. 1970); Stidham v. DuBose, 128 S.C. 318, 121 S.E. 791 (1924).
http://www.law.cornell.edu/supct/search/display.html?terms=civil%20and%20criminal%20contempt&url=/supct/html/92-1625.ZO.html
International Union, UAW v. Bagwell (92-1625), 512 U.S. 821 (1994).
[… ] The union's ability to avoid the contempt fines was indistinguishable from the ability of any ordinary citizen to avoid a criminal sanction by conforming his behavior to the law. The fines are not coercive day fines, or even suspended fines, but are more closely analogous to fixed, determinate, retrospective criminal fines which petitioners had no opportunity to purge once imposed. We therefore decline to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law.
# posted by 
: 5:07 AM
: 5:07 AM
Anonymous:
What is your point? Do you think that all the incarcerated "Deadbeats" were both in wilful contempt and were afforded Due Process before being carted away to jail? Our guess is that most of those who had lawyers never spent a night in jail whereas those who appeared without lawyers received the brunt of the Court's ire.
This situation persists because jailing "Deadbeats" is a money-making enterprise for someone--just not the folks who are owed the money. And we suspect that no one in the State of South Carolina has any idea of the total amount of fines being assessed against "Deadbeats," who receives those fines, or how they are being expended
What is your point? Do you think that all the incarcerated "Deadbeats" were both in wilful contempt and were afforded Due Process before being carted away to jail? Our guess is that most of those who had lawyers never spent a night in jail whereas those who appeared without lawyers received the brunt of the Court's ire.
This situation persists because jailing "Deadbeats" is a money-making enterprise for someone--just not the folks who are owed the money. And we suspect that no one in the State of South Carolina has any idea of the total amount of fines being assessed against "Deadbeats," who receives those fines, or how they are being expended
What I meant was if there was something put into the bill that included expungement of your record if I got locked up for not paying my child support, then once I paid up and got out of the pokie, I could also get my record expunged just by filling out a form and paying a small fee. Basically get a second chance at being called a "deadbeat."
From a reader: "What in your opinion is the legislature trying to accomplish with this bill?"
# posted by : 5:10 AM
: 5:10 AM
Senator Jake Knotts is pushing this Bill. He points out that some very minor convictions early in life can cause disproportionate harm in the future in cases in which convictions are not subsequently expunged. Additionally, we think this is a revenue raising bill to some extent. Last, as the name implies, this is a “Uniform Bill” that standardizes the practice throughout the State; as things now stand, each Solicitor can do pretty much do what he wants.
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