Jail a rarity for civil contempt

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Attorney David Pliner knew his request for jail time was “extreme,” but he felt he had to try.

Months after Dane County Circuit Judge John Markson had declared over a case in which Pliner serves as defense counsel, the plaintiffs continued to litigate.

When Markson first held plaintiffs Rodney Rigsby and Quincy Neri in contempt in July, the pair responded by serving default judgments on insurance companies, asking for $100 million plus unpaid interest.

Tired of having to respond to the pair and yet to receive any of the awarded attorneys’ fees, defense attorneys asked Markson to throw Rigsby and Neri in jail.

“I didn’t know what the chances were of getting jail time because it is an extreme remedy, and frankly I don’t know if jail time would stop them anyway,” Pliner, of Corneille Law Group LLC, Madison, said.

At a Sept. 8 hearing, Markson declined to impose jail time and instead held them in contempt for the second time, this time firming up some of the language in his order to ensure his message was clear.

Though the opposing attorneys were disappointed, it is fairly rare for a judge to issue jail time for contempt in a civil case. More often, if contempt is ongoing, a judge will impose monetary sanctions or take some other action before resorting to what many feel is a last-ditch attempt at compliance.

“I think jail should be the last option, the severest of the sanctions,” Milwaukee County Circuit Judge John DiMotto said. “It should be reserved for the worst offender under the worst type of circumstances.”

The attorneys defending against Rigsby and Neri would classify their situation as the worst type of circumstance.

The plaintiffs, as well as Catherine Conrad, are known to the local bar for bringing what judges have deemed frivolous lawsuits over copyright claims, and for suing attorneys and insurance companies in the hopes of receiving big payouts.

While the trio is still at it, they have largely been unsuccessful, and have racked up more than $390,000 in judgments, sanctions and attorneys’ fees, most of which remain unpaid.

Three other attorneys involved in the case Pliner is defending, Timothy Barber of Axley Brynelson LLP, Cathleen Dettman of Haley Palmersheim SC and Grace Kulkoski of Peterson, Johnson and Murray SC also asked Markson to impose jail time. They did not immediately return phone calls for comment.

But attorneys say the move for jail time is a rarity. The only other recent high-profile example occurred when Milwaukee County Circuit Judge Paul Van Grunsven found Ralph Sasson in contempt of court and referred a case to prosecutors after Sasson disobeyed a judge’s order in a case he brought against Brewers right fielder Ryan Braun. And even though prosecutors later decided against charging Sasson, sheriff’s deputies arrested Sasson outside the courtroom after Van Grunsven made the referral.

Van Grunsven referred the case to prosecutors, who declined to bring charges.

“It was a surprise to the parties,” Stephen Kravit of Kravit, Hovel & Krawczyk SC, Milwaukee said. “We walked into court. There was no argument. The judge just found him in contempt and referred for criminal prosecution.”

Requests for jail time are more common in family court, but even then typically come after repeated monetary sanctions and other attempts to get a person to comply with a judge’s order, which commonly involves not paying child support.

“I can honestly say, probably in 22 years, I’ve had somebody sent to jail less than 10 times,” family law attorney Teri Nelson of Nelson, Krueger & Millenbach LLC, Wauwatosa, said.

Other states have examples of people being held in jail for long periods of time, such as Pennsylvania lawyer H. Beatty Chadwick, who was jailed for 14 years for not turning over millions of dollars in a divorce proceeding. But Wisconsin’s laws long have prevented such an occurrence from happening. While there are wrinkles and different kinds of contempt, a judge here usually can only sentence someone for up to six months.

And there’s always the question, DiMotto said, of whether jail time is the best option.

“Plus some of these people would rather do a couple of days in jail instead of paying $500,” he said. Follow @eheisigWLJ