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Attorney Faces Criminal Contempt

Posted on Monday, May 14, 2018

In the recent case of In re Contempt of Henry, a published opinion of the Court of Appeals, the Court addressed a criminal contempt matter arising from appellant, attorney Kathy Henry’s, involvement with her brother, defendant Charles Henry’s, post-divorce judgment child support enforcement case. The trial court held that the attorney committed criminal contempt based on a series of violations, including: “violations of the Michigan Rules of Professional Conduct, committing perjury, affirmatively lying to the court and lying to the court by omission, violating court orders, and failing to deliver and fully account for the funds at issue.” The trial court sentenced the attorney to two days in jail, a fine in the amount of $7,500, and attorney fees.

Among the many issues included in the attorney's appeal, the attorney challenged the $7,500 fine on the ground that the penalty violated the ex post facto clauses of the United States and Michigan Constitutions. The amount of fine available under the criminal contempt statute changed while the attorney's contempt case was pending. The new legislation changed the maximum contempt fee from $250 to $7,500. MCL 600.1715(1). The attorney argued that her contemptuous acts occurred before March 30, 2007, so it violated her rights to fine her $7,500 for her conduct.

The Court of Appeals held that the “retroactive application of the amended version of MCL 600.1715 enhancing the fine recoverable from appellant violates constitutional ex post facto prohibitions by increasing the level of punishment applicable when appellant committed her criminal contempt before the amendment.” The Court vacated the $7,500 fine and remanded the case for compliance with the prior version of MCL 600.1715. The Court affirmed on all other grounds.

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