Rule 3.606.Contempts Outside Immediate Presence of Court

MCR 3.606 governs the contempt the judge did not see. Where the alleged misconduct happened outside the court's immediate view and presence, the court cannot act on what it observed, so the rule builds a charging step, an appearance mechanism, and a way to compensate the party harmed.

Starting the proceeding

Subrule (A) requires a proper showing on an ex parte motion supported by affidavits. On that showing the court shall do one of two things: order the accused person to show cause, at a reasonable time specified in the order, why that person should not be punished for the alleged misconduct, or issue a bench warrant for the person's arrest. Subrule (B) adds a route for someone already in custody, allowing a writ of habeas corpus to bring up a prisoner to testify to be used to bring a person charged with misconduct before the court, after which the court may enter an appropriate order for that person's disposition.

Bond instead of arrest

Subrule (C) lets the court allow a bond in lieu of arrest, prescribing in the bench warrant both the penalty of the bond and the return day for the defendant. The defendant is discharged from arrest on executing and delivering to the arresting officer a bond that meets three requirements:

• it is in the penalty endorsed on the bench warrant, running to the officer and the officer's successors;
• it carries two sufficient sureties; and
• it is conditioned on the defendant appearing on the return day and awaiting the order and judgment of the court.

Under subrule (C)(3), the officer returning the bench warrant must also return any bond taken, and the bond is filed with the warrant.

What happens if the bond is broken

Subrules (D) and (E) split the proceeds. The court may order the bond assigned to an aggrieved party whom it authorizes to prosecute the bond under MCR 3.604(H). Damages in that action are measured by the extent of the loss or injury the aggrieved party sustained because of the misconduct that prompted the order for arrest, together with that party's costs and expenses in securing the order. Whatever remains of the penalty of the bond is paid into the treasury of the county where the bond was taken, to the credit of the general fund.

If the court does not order an assignment, subrule (E) directs it to order the breach prosecuted by the Attorney General or by the prosecuting attorney for the county in which the bond was taken, under MCR 3.604. The penalty recovered is paid into the treasury of that county, to the credit of the general fund.

Incarceration for nonpayment

Subrule (F) places a condition on the sanction. The court shall not sentence a person to a term of incarceration for nonpayment unless it has complied with MCR 6.425(D)(3). The same subrule notes that proceedings to which the Child Support and Parenting Time Enforcement Act, MCL 552.602 et seq., applies are subject to that act's requirements.