Cases by Issue - Contempt of Court

United Mineworkers of America v. Bagwell - Oral Argument

Fri, 09 Jan 2009 14:49:54 +0000

Case:

United Mineworkers of America v. Bagwell

Media File:

92-1625_19931129-argument.mp3

Related Transcript:

1993_92_1625_argument.xml

Transcript:

Argument of Laurence E. Gold

Chief Justice Rehnquist: We'll hear argument first this morning in No. 92-1625 the International Union, United Mine Workers of America v. John L. Bagwell.

Mr. Gold.

Mr. Gold: Mr. Chief Justice, and may it please the Court:

This case grows out of a strike and ensuing equity proceeding to enjoin various kinds of wrongdoing and a series of contempt proceedings which have generated huge fines.

The essential first question posed by the case is whether this... these fines were criminal fines which could only be imposed through criminal contempt and through procedures which meet the requirements of criminal due process, most particularly the right to jury.

This is not a new question in this Court, and we rely on statements of the essential rules going back to 1911 in the Gompers case, and rules which have been restated and reaffirmed as recently as the Fiat case in 485 U.S.--

Unknown Speaker: Mr. Gold, do you take the position that the defendant has to continue to have an opportunity to avoid payment of the fine in order for it to be classified as civil?

Mr. Gold: --We think that that is--

Unknown Speaker: Is that a hard and fast test, in your view, of this case?

Mr. Gold: --We think that that is one of the underlying points which leads to what we understand to be the basic point when you're dealing with fines and imprisonment.

Unknown Speaker: But it's your position that that's a requirement.

Mr. Gold: Yes.

Unknown Speaker: How can that ever be coercive?

I mean, if a defendant can always avoid it by eventually doing the act.

Mr. Gold: The... when I say that it has to be avoidable, what it... what I understand the cases to say is that in a situation in which a fine or a... an imprisonment is imposed in order to coerce an act, where that is done to coerce a discrete affirmative act, there is a sense in which the individual has... to use the phrase which runs from the beginning and the... to the end of these cases, has the keys to the prison or the... to his own strongbox in his hands, in a way which is different from the situation in which there is a prohibition and an alleged violation of the prohibition.

The effort is to secure a discrete act from the individual.

Unknown Speaker: Well, if your response is that it also depends upon whether it's mandatory or prohibitory--

Mr. Gold: Yes.

Unknown Speaker: --I suppose in this case there were both types of things involved.

Mr. Gold: Yes, and in that... in that sense, Justice O'Connor, the first of the arguments we make is first because it raises the larger, more general question.

But it is, for our purposes, narrower in its effect than the second argument we make on the effect of settlement.

Unknown Speaker: Well, in this case, this very case, do you say that the fines could be imposed insofar as they applied to those things that the union was asked to do separate and apart from violent acts?

Mr. Gold: Yes.

Unknown Speaker: Uh-hum.

Mr. Gold: Yes.

We acknowledge... we take the sweet with the sour in terms of the law as it's developed, a law which distinguishes between the ability of the courts to coerce discrete acts that provide a unique benefit to the plaintiff and rules which have to do with the statement of prohibitions in court orders and the levying of fines or imprisonment for violating those orders.

Unknown Speaker: Mr. Gold--

--Mr. Gold, how much of the law that you're talking about is constitutional law which would be imposed on the States by the con, and how much of it is just Federal court law.

I mean, Gompers, for example, was a Federal court case.

Mr. Gold: The opinion in Gompers talks about the rules being rules of constitutional import having to do with, as the phrase in the case, substantive rights and constitutional privileges.

And certainly Hicks v. Fiat comes out of the California courts and applies the same rules and the pivotal case for our purposes here, Bloom v. Illinois, is a constitutional case.

We understand the test or the general rule that is stated in Gompers and reaffirmed in Hicks, to have three wellsprings and to serve three purposes.

First of all, it captures the essence of the historic distinction between criminal contempt and civil contempt.

Secondly, it takes proper cognizance, as Gompers says, of the substantive rights and constitutional privileges at stake.

And finally, as Bloom emphasizes, it gives due weight to the apprehensions about an unbridled contempt power that--

Unknown Speaker: So you think that the Constitution enjoins a distinction between the mandatory provisions of an injunction and the, you know, prohibitive, prohibitory.

The... I thought that distinction was pretty much discounted.

Mr. Gold: --I can only judge by our understanding of the words in the U.S. reports.

The distinction is one which serves to demark the line between criminal contempt, which is governed by criminal due process requirements.

Unknown Speaker: But isn't it a fact, Mr. Gold, that a court can turn anything from mandatory into prohibitory just by a matter of phrasing?

Mr. Gold: I... well, two... two points on that, Mr. Chief Justice.

One, when we talk about mandatory and prohibitory, as this Court has talked about, and it is the distinction between prohibiting someone from acting in a way which is harmful or wrongful and ordering someone to act in a... do particular discrete acts.

Unknown Speaker: Mr. Gold, in that respect, are you saying... are you saying that a stop order can never be enforced except through a criminal contempt process.

Mr. Gold: No, Your--

Unknown Speaker: There were examples given by your opponent for... in the brief.

The Patco case was one, the Operation Rescue injunctions were others.

Can you say under what circumstances a stop order can be enforced without a criminal contempt proceeding?

What is the dividing line between when a stop order can be enforced and when it requires a separate criminal contempt proceeding?

Mr. Gold: --Two... two points, Justice Ginsburg.

First of all, we believe these distinctions that we're discussing here, and which are labeled prohibitory and mandatory and, as you say, involve stop orders, deal with the question of fines and imprisonment.

There are other... obviously, there are other ways to back up a stop order, various kinds of compensatory and remedial orders which are designed to provide the complaining party with the rights and benefits that the order specifies.

Secondly, the stop order can be backed up by various well crafted, affirmative orders which can be enforced through coercive means under the established tests.

Unknown Speaker: Mr. Gold, are you--

--Was Patco such a case?

Mr. Gold: Well--

Unknown Speaker: Wasn't that a fine per day?

Mr. Gold: --I'm not familiar with the particulars of the Patco orders.

Unknown Speaker: Well, do you take the position that if the order... an appropriate order is issued not to strike, which is, in effect, to continue to work, that that cannot be enforced with a coercive and still civil fine for each day in which they refuse to return?

Mr. Gold: Yes, Your Honor.

And whether it is not to... whether--

Unknown Speaker: You take... I'm sorry.

You take the position that that is not a... that that enforcement is not subject to a civil coercive fine?

Mr. Gold: --Correct.

Unknown Speaker: Suppose the judge says, go back to work instead of, stop striking?

Does that make a difference?

Mr. Gold: The... I think the answer is no.

Unknown Speaker: Why?

It seems to me one's prohibitory, the other's... the other's mandatory.

Mr. Gold: The underlying point is prohibitory.

It seems to... and I would say--

Unknown Speaker: Why do you say that?

I don't know... I mean what the judge wants is to get these people back to work.

That's what the... that's what the plaintiff wants.

He can put it either way: stop striking or go back to work.

And according to your analysis, one can be enforced civilly, the other one can't.

That doesn't make much sense to me.

Mr. Gold: --The... I think it makes sense in terms of the underlying theory of the distinction, Justice Scalia.

The... in the same way as you've just stated, an order... instead of phrasing an order not to take action which is injurious to the plaintiff, you can say only do things which are beneficial to the plaintiff, or do not do things.

But the underlying point remains the same, and I can only say that against a background where the criminal law is a law of prohibition enforced through retribution and deterrence, the test is a test which is as sound as can be divined.

After all, Gompers itself was a boycott case.

The Court had no trouble distinguishing between prohibiting boycotting activity, which could be phrased affirmatively or negatively--

Unknown Speaker: Well, Mr. Gold, is doesn't seem to me that the mandatory prohibitory distinction upon which you seem to think the whole case turns has any underlying connection with the constitutional values that are at stake here.

I should have thought you could have devised some other tests for us, such as whether or not the sanction is prospective or retroactive, backward looking, forward looking, ad hoc, something like that.

But the mandatory-prohibitory distinction, it seems to me, is rooted, to be sure, in what we have said in the cases, but that doesn't seem to resonate in any of the underlying constitutional values that are at stake here.

Mr. Gold: --Well, I think the argument for this distinction is very much like the Churchillian argument for democracy; it is superior to the alternatives.

Unknown Speaker: Mr. Gold, does your... does your case rest on this?

Justice Kennedy prefaced his comment with that.

Mr. Gold: Our first argument most definitely rest on what would--

Unknown Speaker: But suppose... suppose we reject this distinction between not doing and doing.

What are you left with?

Mr. Gold: --In terms of our first argument, we are left with nothing other than the complete lack of any principle differentiating content in the standard applied by the Virginia courts and urged by the respondents.

According to them, whether the underlying order is prohibitory or mandatory, whether it has the essence and substance of traditional criminal law, whether it is enforced by fines or imprisonment, so long as, quote, the penalty is scheduled in advance, it is civil, and if it is not, it is criminal.

The prohibitory-mandatory approach is an effort to deal with a certain measure of overlap between the purposes and effect of a, quote, coercive fine or a coercive imprisonment, and a, quote, criminal fine or criminal imprisonment, and recognizes that both have elements of providing benefit to the plaintiff, vindicating the authority of the law and providing measures of retribution and deterrence.

And if--

Unknown Speaker: If the Court is unwilling to draw a line between acting and not acting, what is the remainder of your argument on why these particular fines should be classed criminal?

Mr. Gold: --Our view is that if that line is rejected, then you have to go to the highest level distinction, which is the distinction between proceedings which are to vindicate the authority of the courts and the law, versus proceedings which are to provide a definite unique benefit to the plaintiff that is, in a real sense, different from the overall effort to maintain peace and social value.

Unknown Speaker: Ex ante or ex post?

I mean, ex ante when the fines are announced, if you do this thing you will pay a fine, they are for the benefit of the plaintiff, to protect the plaintiff from the harm that doing that unlawful thing would produce.

But once the acts are done, the plaintiffs have already been... and then the fine is imposed.

Mr. Gold: I--

Unknown Speaker: You could say at that point there's nothing left but vindication of the court.

Mr. Gold: --I think that, far better than I've been able to do so far, that exposes the nature of the problem.

To say that if, ex ante, you enter an order, do not harm the plaintiff, and say if you do, you will be fined $100,000... to say that that is a situation which is different from the following: you enter an order saying do not harm the plaintiff, actions are taken which harm the plaintiff, a proceeding is begun in contempt, and a fine of $100,000 is imposed.

To say that those are different, the first civil, the second has always been criminal, is to deny that the criminal law, with the sentencing guidelines and other statement, prior statements of both the norm and the sanction, is somehow civil.

And that, we think, leaves the underlying constitutional values, which we have not talked about, and I am only going to talk about for a minute, completely unprotected.

After all, there are two social values here.

One, the basic social values which provide a heightened degree of due process for the imposition of certain forms of penalties.

And secondly, the particular concern of the contempt procedure, which is one which conflates all the power of Government into a single individual which varies in a way which is contrary to the whole notion of protecting against improper incursions on liberty by separating the powers of Government.

Unknown Speaker: Well, what you speak of as the single individual is, in fact, the court.

And the court, in fact, has a position in these cases which is different from the court in a normal criminal case, or indeed from a normal civil case.

Because the court, in effect, has... by issuing an injunction, has become an actor and, in effect, has created a public stake which doesn't exist in your two other extreme examples.

So there's nothing unreasonable, on the face of it, to say that there should be a particular process, and not necessarily a criminal one, to protect that... that third and different interest.

Mr. Gold: The history of the doctrine, to date, has been, as we understand it, precisely the opposite, Justice Souter.

It has been the recognition that the fact that the judge issued the order creates grave risks that, in dealing with--

Unknown Speaker: Oh, I will grant you that it does create grave risks.

But I'm saying... all I'm saying is that the existence of that risk is not dispositive, because that risk is still, as it were, sort of the unfortunate reflection of a third interest which does not occur in the run of the mill criminal case or the run of the mill civil case.

Mr. Gold: --I'd like to move on to the second argument.

Before I do, let me simply say that if that's true, there is no room for a criminal contempt.

And it is the starting point of every case in this Court, from Gompers through Dixon, is that there is an area of... called criminal contempt which must proceed under constitutional due process standards.

Let me talk about the second question presented.

In the second question--

Unknown Speaker: Can I ask you a question about the second question?

Mr. Gold: --Absolutely.

Unknown Speaker: Is it your position that despite all of the characteristics which exist that you say would make this a criminal proceeding, it can be converted into a civil proceeding so long as the State court announces when it's imposes, of course, you know, even if you violate these orders and incur liability for the fines, you'll be able to settle?

If you settle and the plaintiff is willing to waive the fines, the fines will be waived, is that enough to convert what might otherwise be a criminal process, according to your analysis, into a civil?

Mr. Gold: The... that characterization, I think, is... of the process is the respondents'.

But in terms of your point, we do believe that if you look at the most general proposition, that criminal contempt is to vindicate the authority of the law and the court, versus civil contempt, which is to bring about the benefits of the order to the plaintiff in a remedial fashion, then law, any rule which says that the plaintiff is not master of the case and cannot settle it and it is not inherent in the case, that satisfaction to the plaintiff is not enough, is a hallmark of criminal contempt, if there is no other hallmark of criminal contempt.

Unknown Speaker: And vice versa.

I asked you the vice versa question.

Likewise, if the plaintiff can waive it, it becomes civil.

Mr. Gold: We would not--

Unknown Speaker: Or if you say A, you have to say B, Mr. Gold, don't you?

Mr. Gold: --Well, we would say that any case... we would say that any case in which the plaintiff can waive... let me just put it in these terms.

I hadn't thought of it exactly as you said it, but it is true, from Gompers on, that criminal contempt cannot be settled by the putative private plaintiff, and in that sense I agree totally with what you said.

Unknown Speaker: Thank you, Mr. Gold.

Mr. Roberts, we'll hear from you.

Justice Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

The Virginia Supreme Court correctly determined, in accord with every Federal court of appeals to have considered this question, that contempt sanctions of the sort at issue here are civil in nature.

This Court has explained that we should look to the substance of the proceeding in classifying contempts as civil or criminal.

Here the defendant violated an injunction repeatedly.

The defendant was brought before the court and the judge said you've violated this injunction, and to get you to stop violating it and start complying with it in the future, I'm going to fine you so much for every future violation.

These fines are prospective and you can avoid them completely by complying with the injunction.

I hope this will deter future violations.

Now--

Unknown Speaker: Mr. Roberts, if the fines hadn't been prospective, then the enforcement of the injunction would have had to have been through a criminal process with a jury trial.

Justice Roberts: --If the--

Unknown Speaker: But everything turned on specifying the fee schedule.

Justice Roberts: --In general, I think that's correct.

You need to have a situation where the judge specifies in advance a warning to the defendant to coerce him.

I think--

Unknown Speaker: What are the constitutional values that are served by that distinction?

Justice Roberts: --The constitutional values that are served is that your... the Bill of Rights protections that the union is saying it wasn't granted are applicable only in a criminal proceeding, one brought to punish.

If the proceeding is not one brought to punish, it's not a criminal proceeding and then those protections are not applicable.

The question instead is is the proceeding coercive and remedial, as opposed to punitive.

Unknown Speaker: Well, why has it become... why has it become coercive just because you name the amount of money?

I mean is the difference between the judge saying if you violate my order, I'm going to fine you $1,000 a day, and the judge saying if you violate my order, I'm going to fine you something; I won't tell you now what it is, but you're going to be fined for contempt of court?

Justice Roberts: It's not--

Unknown Speaker: I mean they're both coercive, it seems to me.

Justice Roberts: --Well, they do have general coercive aspects.

It looks more remedial in the sense that it is specified and focused on a particular defendant.

Because in the situation you posit, what the judge is going to do after the violation is set the fine based on the violation, look to the past.

What he's doing here is looking to the future.

He's not saying you've done terrible things and this is what you're going to pay.

He's saying I want to get you to stop doing those things, and this is what I think it will take.

Unknown Speaker: But the only difference is he makes a speech to the defendant, as opposed, in effect, to deeming that the defendant knows the criminal law.

Justice Roberts: No--

Unknown Speaker: That seems to me a totally formalistic distinction.

Justice Roberts: --It's not a formalistic distinction, Your Honor, in this respect; the general criminal law does have deterrent effect.

It applies to everyone, a general deterrence.

Here we're talking about a specific defendant whose conduct is... has risen to a level that an injunction's been entered against him.

It's been narrowed down to that defendant.

And when the judge... and that defendant then violates the order again.

And when the judge says this is what I think it will take to get you to comply, that order is narrowed and coercive in a far more focused sense than the criminal law is deterrent.

Unknown Speaker: I see... I see it's narrowing, but I'm not sure why its narrowing makes it coercive, and I don't see what the extra element of coercion is.

Justice Roberts: Well, the extra element starts, first, with the fact that there's been a violation of the injunction already.

This is not just the general citizen walking the street who has the criminal law applied to him.

It's been focused on a particular individual, and the judge has indicated to that individual specific sanctions that will follow further violations.

Unknown Speaker: Sure.

But if a judge is sentencing an individual for a violation of the criminal law and says don't let me see you here again or I'll throw the book at you, that doesn't convert the second proceeding, if he does come back, into a civil proceeding, and I'm not sure what the distinction is between that and what you're proposing for us here.

Justice Roberts: Well, the distinction is the same one that the Court has drawn between civil and criminal statutes.

Your argument, it seems, would undermine the validity of civil penalties generally, but this Court has upheld them.

And it's upheld them because it's recognized that the sanction in that case, in a civil penalty case, serves a remedial objective.

It's reasonably related to a remedial objective and it's not explainable solely on the basis of punitive values.

Unknown Speaker: Mr. Roberts, can I ask just one other question.

What if, in addition to saying if you do so and so you'll be fined $100,000, the judge said, and you'll spend 24 hours in jail?

Justice Roberts: Imprisonment has not been used traditionally, Your Honor, in the sense of--

Unknown Speaker: I understand.

But what would your answer be if the judge did say that?

Justice Roberts: --That the imprisonment may well not be valid.

And the distinction is this; imprisonment has typically been used in contempt where a situation is... the coercive situation with a defendant could comply at any point.

Say you're in prison until you turn over the documents.

Now, if you wait 3 days to turn over the documents, that's like the situation we have here.

The union, you're going to be fined until you start complying.

If they don't comply for 3 days, they incur those fines.

Now, the prisoner can't get back those 3 days, but that doesn't make the proceeding criminal.

Here, the union can't get back the fines it has incurred for its violations--

Unknown Speaker: So in a domestic relations case, a judge can say that for every time you go near the wife's house in violation of this order, I'll fine you $500.

Justice Roberts: --If... adding one feature that I think... again, that is present in this case and confirms the remedial aspect, which is there has been violations of a prior order.

In other words, it's not simply this goes with the injunction.

There's a problem here before the court that we have to remedy.

The injunction isn't working.

You're violating it.

Unknown Speaker: Well, what's... is the basis for that distinction just to vindicate the authority of the court as opposed to bringing the dispute to an orderly focus before the court?

I can see if documents aren't being produced or if the court's processes are somehow being thwarted so that it cannot resolve the dispute, that it may have to take these measures, but this seems to me an ultimate order designed only to vindicate the court's authority.

Justice Roberts: Not simply to vindicate the court's authority, but to remedy the problem before the court.

The sanctions are announced in order to coerce the defendant into complying with the court order.

It is that remedial aspect, a focused aspect, not simply the general deterrent effect--

Unknown Speaker: Mr. Roberts, why don't we take the court at its word?

And it said:

"Courts of the Commonwealth must have the authority to enforce their orders by employing coercive civil sanctions if the dignity of the law and public respect for the judiciary are to be maintained. "

The court is there telling us its concern with its own good and welfare, and it must enforce... impose these fines to promote public respect for the judiciary.

Justice Roberts: --Two... a very important distinction, Your Honor.

That is talking about enforcing the civil contempt fines once they have been imposed and reduced to judgment.

That is not the reason the judge imposed these prospective sanctions in the first place.

The record is quite clear.

The judge said this is to get you to comply.

He said I sincerely hope this will deter future violations.

The passage Your Honor was reading from concerns after this case, the union and the company had settled.

At that point does the court have to, as a matter of Federal constitutional law, vacate the previously imposed fines already reduced to judgment?

And the answer is no, because these are court orders and those are not at the disposal of the parties.

The--

Unknown Speaker: But doesn't that show, if there was ambiguity before, what the court conceived the character of these fines to be?

Justice Roberts: --No, Your--

Unknown Speaker: It says I'm not vacating... the court says we're not vacating these fines because they relate to the dignity of the court.

Justice Roberts: --No, it's... the trial court quite clearly spelled out... and they're set forth in our brief... whenever he imposed these sanctions, that this is civil contempt, it is to get you to comply, if you comply you will not incur any fines whatever.

They did not comply, they violated the order, and then the promised sanction was imposed.

Now at that point the court's authority is implicated.

Is its fine going to be enforced or not, or is it going to be something that the union and the company can bargain about between themselves?

To come in and say, when the judge says I have entered sanctions fining you this much, pay... and the union is going to stand up and say, well, no, Your Honor, we've sort of worked that out between ourselves.

At that point the court's authority to enforce its previously imposed judgments is implicated.

Unknown Speaker: Mr.--

Justice Roberts: That doesn't retroactively change the character of the sanctions when they were announced.

Unknown Speaker: --Mr. Roberts, the answer you gave to Justice Stevens a little earlier about an order that imposes imprisonment instead of fines prospectively, it seems to me to stand history on its head.

The classic... the classic contempt situation, civil contempt, is putting somebody in jail.

In fact, I don't know any of the older cases in which civil contempt, coercing somebody to turn over the key, is a fine.

It's always jail and no fines.

Do you know any early cases that imposed fines?

Justice Roberts: Certainly.

The United Mine Workers decision from this Court... this Court--

Unknown Speaker: I said very early.

I'm talking--

[Laughter]

I'm talking about the development of civil contempt in the common law, and the classic situation is throwing somebody in jail until he coughs up the information.

Justice Roberts: --I don't--

Unknown Speaker: And yet you told Justice Stevens, well, if prospectively you put him in jail it's obviously bad, although prospectively you can fine him and that's just civil.

But I think that... that just inverts what had been the rule at common law, that you could throw somebody in jail.

I don't know any rule at common law that you could fine him.

Justice Roberts: --Well, I don't disagree with you that the classic case is putting someone in jail until they comply with the court's order.

But that doesn't mean that the use of fines in this situation is invalid.

As I mentioned, fines were used this way in the United Mine Workers case.

And the one thing this Court has said--

Unknown Speaker: Was the reason for that the necessity of coercing corporate defendants as opposed to individuals?

Justice Roberts: --It's certainly a significant factor, although perhaps the judge could have put the union leaders in jail until the union complied with his order.

And he didn't do so for a simple reason.

This Court has announced, from its earlier cases, that in the case of contempt, a court should use the least possible power to the end proposed.

The judge, confronted with a situation of nothing less than the breakdown of the rule of law in Southwestern Virginia, thought that this was the least incendiary and the most effective way to bring about compliance with an injunction.

Putting the union leaders in prison may have been more dramatic, but may have contributed to the problem rather than remedying it, which was his primary objective throughout.

Unknown Speaker: Do you know of any early... the early cases in the development of this civil contempt at common law in which what the person in jail was required to do before he could get out was something very... maybe there's no way it could have been something very complex.

It had to be something pretty simple, didn't it?

He had to turn over a document or sign a document or do something like that.

It's very easy; you don't really need a jury to figure out whether that's been done or not.

And might not that be the distinction?

Might not that be why that was allowed?

Justice Roberts: No, I don't think the distinction is--

Unknown Speaker: Because it was simple to tell, whereas where the... whether this has been violated or not is very difficult to tell.

I want a jury trial on it.

Justice Roberts: --No, I don't think the distinction has always been whether it was something easy to do or hard to do, and it's certainly not that difficult to tell.

The one thing the court was clear about--

Unknown Speaker: Easy to determine, not necessarily easy to do.

Easy to determine whether it's been done.

Justice Roberts: --Well, it was easy to determine in this case, because the one thing this circuit court judge and his counterpart in the Federal court who was addressing the same situation, both concluded is that the union leadership had complete control over the conduct of the strikers.

There's nothing difficult about determining whether or not the court's order had been complied with.

Certainly nothing difficult--

Unknown Speaker: Whether there had been any violence?

Whether, you know... you mean people don't come in and say there was violence and other people say there wasn't violence?

Justice Roberts: --The question is not violence--

Unknown Speaker: In the old common law, the classic case, the judge says here's the document, Your Honor, let me out of jail.

He says, oh, yeah, I looked at the document.

Yes, you gave it to me.

Out of jail.

In this case there's going to be debate about whether there was violence, continued violence or not.

Justice Roberts: --Well, there--

Unknown Speaker: What's the judge going to do?

He's going to hear witnesses, I guess.

Justice Roberts: --And he did.

There was discovery.

There was examination and cross-examination of witnesses.

Unknown Speaker: That didn't have to be done in the old common law.

Justice Roberts: Well--

Unknown Speaker: When you threw somebody in jail until he coughed up the key or signed a document or delivered a document.

Justice Roberts: --I don't know that the old common law had a situation where there was such widespread organized flouting of a court injunction.

I'm not aware of that situation coming up.

And the question is in such a situation, is the court powerless to use its civil contempt powers to enforce compliance with its orders; is its only recourse punishment later on?

Take the situation of a company that's dumping dioxin in the city water supply, and an injunction is issued and the company is still doing it.

The union would say that all that the court can do is somewhere down the road punish the company for that.

Unknown Speaker: Well, Mr. Roberts, that's not quite right.

At page 27 of your brief you point out some specific commands that the judge gave:

"Place a designated supervisor or captain at each picket site. "

and such.

Justice Roberts: That's correct.

Unknown Speaker: Now, that sort of thing, you could tell whether the man was there or not.

Justice Roberts: Well, yes, Your Honor, that's right.

There were four specific elements in the injunction that were affirmative under the union's viewing it--

Unknown Speaker: That... those penalties for that sort of thing are not at issue here, are they?

Justice Roberts: --Well, not from what my brother has said this morning, I gather they're not, no, because they meet his affirmative prohibitory test.

But--

Unknown Speaker: As I understand it, the penalties are for things like somebody threw a rock, and the union says it was a stranger or he didn't have authority to do it or he was violating orders or something like that which, as Justice Scalia suggests, requires some kind of a evidentiary hearing, discovery, to find out whether it happened.

But whether they posted a supervisor at the corner of State and Madison, that's not a factual problem.

Justice Roberts: --Let me... let me clarify my answer to your earlier question.

Fines were imposed for violations of those affirmative obligations.

I understood my brother to say that he didn't disagree that those could not... I mean, could be imposed during civil proceeding.

Unknown Speaker: Oh, I was going to ask that.

I think he does... he was just... he was just talking about part one of his case.

I think he thinks part two of his case washes those out as well.

Justice Roberts: Well--

Unknown Speaker: That is, those were settled out of it.

Justice Roberts: --Well, then let me talk about part two.

His argument on part two is that the parties can agree between themselves to settle the case, and that that precludes the court from imposing the fines that had already been reduced to judgment.

That is a question of State law, how the mootness rules apply.

The Virginia Supreme Court has provided the definitive answer to that question of State law.

Gompers doesn't control, not only for the reason that it's an issue of State law, but--

Unknown Speaker: Mr. Roberts, why would somebody regard that as going to mootness instead of revealing what the character of these proceedings were?

In other words, if it's on the criminal side, then it's certainly not moot just because the parties settled.

So why isn't the mootness for this really a misnomer?

If the case is still alive, it's because it has a criminal character.

Justice Roberts: --Well, the Gompers Court, in considering the same question in the Federal context, analyzed it in mootness terms.

We have a situation where a case has been settled and the question is the consequence of that on particular judgments.

It seems to me a classic case of mootness.

Justice Stevens, I think I did not answer your question.

The affirmative provisions in the order were violated and fines were imposed for those.

My point is that it is a difficult, if not impossible task to draw a distinction between the affirmative and the prohibitory.

Take the recent situation out in Los Angeles, the police sickout.

An injunction was entered there to end that.

It could have said return to work or it could have said stop the sickout: affirmative or prohibitory.

And you can't look to the status quo to figure out in substance which it was, because some of the officers would be sick one day and some the next.

The distinction is completely manipulable and is not the test that this Court has adopted.

Finally, I would note briefly that in their papers the union argues for a remand to reconsider the excessiveness of the fines, although it has not been mentioned this morning.

They have two arguments: substantive due process and the Eighth Amendment.

The Eighth Amendment argument was waived; it wasn't decided by the Virginia Supreme Court.

Unknown Speaker: Well, Mr. Roberts, it was, of course, raised in their application to the State court.

It's hard to say that it was waived.

They didn't spend a lot of time on it, but what if we have to reach it, as I think we probably do?

Justice Roberts: Well--

Unknown Speaker: Has this Court ever said the Excessive Fines Clause is incorporated?

Justice Roberts: --It has not.

It would--

Unknown Speaker: And do you think we should?

Is it appropriate that we do that?

Argument of Paul Bender

Justice Roberts: --The question was specifically left open in Browning Ferris.

It would seem odd to have to address that profound constitutional question in a case where the issue was not raised.

They did not, if I may, raise the question in their application.

The Virginia Supreme Court has a questions presented practice similar to that of this Court.

The Eighth Amendment or the words Excessive Fines Clause do not appear in their questions presented.

Thank you, Your Honor.

Unknown Speaker: Thank you, Mr. Roberts.

Mr. Bender, we'll hear from you.

Mr. Bender: Mr. Chief Justice, and may it please the Court:

This Court's cases have steadily recognized, and I think everybody in this case agrees, that the traditional use of civil contempt to coerce a recalcitrant party or witness into doing something that the court wants them to do, traditionally by putting him in jail until he does it, more recently by fines that accumulate until he or she does it, that that's constitutional, whether done in a State or Federal court.

The question in this case, as... I think the central question in this case, as Justice Ginsburg mentioned at the outset of the argument, is with prohibitory injunctions, where do we draw the line between those which are constitutional and those which are not?

That there are constitutional rules I think is reflected in this Court's decision in Hicks, which was a State case and which mentioned that there are constitutional rules.

Unknown Speaker: Well then, what are those rules?

Is it a matter of the Due Process Clause and is it procedural?

Mr. Bender: I think it's a matter of due process and I think it is procedural, yes.

The Government's position in this case is that in addition to the traditional use of civil contempt in the coercive manner I just mentioned, there are at least two other areas where civil contempt has traditionally been used and which this Court should recognize as being constitutional uses of civil contempt.

One the Court has explicitly recognized over and over again, and that is that civil contempt can be used in civil litigation to compensate a party for damages done to that party by the other party who violates the injunction.

Unknown Speaker: Well, Mr. Bender, let me interrupt you for a moment.

You say a constitutional use of civil contempt, but it's quite possible to read our cases, is it not, as saying that the distinction between... there is a constitutional decision between criminal contempt and civil contempt, because criminal contempt requires the invocation of certain procedural safeguards, like a jury trial?

But I don't read that as connoting that there's some constitutional limitation on civil contempt at all.

Mr. Bender: It may not be, and it may be that any time a judge announces that he is proceeding by way of civil contempt and that the penalties are going to be imposed civilly, that that's constitutional.

Even--

Unknown Speaker: Well, is it just a matter of how the judge characterizes it?

Isn't there something that we can... you can describe and say if you have that, it's got to be criminal?

Mr. Bender: --Yes.

I think it's easier to look at it in terms of some things which, if they're present, it's clear that you can operate civilly.

And I think this case falls within one of those categories.

Unknown Speaker: How about describing what falls on the other side of the line when--

Mr. Bender: Well, essentially, what falls on the other side of the line are prohibitory, if there is another side of the line.

And I think as Chief Justice Rehnquist points out, it's conceivable that this Court could hold that any time a judge characterizes the proceedings as civil, they should be treated... that should be treated as constitutional.

There are benefits to the--

Unknown Speaker: --Well, what do you with the old distinction between a judge can act on the spot if a contempt is committed in the judge's presence, but if it's not in the judge's presence, then it has to be enforced through a criminal procedure?

Mr. Bender: --I think even--

Unknown Speaker: Do we wipe that out and say if the judge calls it civil, it's civil?

Mr. Bender: --My own view is that there is a core of contempt which must be treated criminally.

And within that core, I would think, are acts which are malum in se, the kinds of acts which have traditionally been treated criminally by the law.

And, clearly, I think within that category would be punishments like going to jail for committing such an act.

Unknown Speaker: So your definition of criminal contempt is an act that's malum in se?

Mr. Bender: No, it's not a definition.

It's... I don't think--

Unknown Speaker: Is there a definition of criminal contempt?

Mr. Bender: --Yeah, and I think it is... I think it's better to put it the other way around, that there are at least two categories of cases--

Unknown Speaker: Well, we'll take it either way.

Mr. Bender: --All right.

I think there are at least two categories of cases where civil contempt can be used by a court.

One is where it's used to compensate one of the parties.

If I... if I, as a judge, enjoin you not to cut down your neighbor's trees, and you nevertheless go ahead and cut down your neighbor's trees, one thing the judge can do, I think, is to award your neighbor civil contempt damages, compensatory damages for what you did.

And that shouldn't... that shouldn't surprise us.

It's very similar to tort damages.

On tort proceedings which are civil, you can have even punitive damages.

So the use of civil contempt in that situation, the Court has recognized over and over again that the compensatory use of civil contempt is also constitutional.

There's a second category which I think is closer to this case, and which is, I think, the leading example of it, is the National Labor Relations Board's use of civil contempt.

As this Court has recognized over and over again, there are areas of regulation of conduct that the Government may proceed in civilly rather than criminally.

The Court's OSHA cases show that, for example.

As I said, the Court's National Labor Relations Board cases show that most prominently.

Where the Court has said, for example, in Republic Steel, the Act is essentially remedial; it does not carry a penal program.

It is perfectly constitutional for a legislature to decide to regulate something civilly, and labor relations are one of the prime areas where that is possible.

So the National Labor Relations Board could constitutionally be given the power itself to levy civil penalties for violations of the Act.

Unknown Speaker: So the Board, in effect, can do just what you were saying or suggesting the judge might be able to do at the beginning, and that is to say we're telling you right now that when we coerce, it's civil coercion.

And that announcement, that labeling is sufficient.

Mr. Bender: Congress' labeling, I think, clearly is sufficient.

If Congress says, as it has to the Board, we want you to act civilly rather than criminally.

And there are lots of reasons why Congress might want to do that.

Unknown Speaker: What if... what if a judge announces this labeling and he says, look, I'm not going to mix myself up in this labor dispute or this custody dispute.

I'm simply going to issue the order, and at some point it's going to be resolved, but I'm telling you right now that if you do not do what I order you to do, or if you fail or if you do what I order you not to do, when it's all over I'm going to levy fines on the following fine schedule, and they're... they're going to be... they're just going to be civil fines, I'm telling you that right now.

Is that sufficient to give it a conclusively civil character?

Mr. Bender: I think it clearly is in a situation where the legislature has said that that's the way the Government wants to proceed.

Unknown Speaker: Even though there's nothing... nothing left to converse... to coerce.

Mr. Bender: Yes.

Yeah, the National Labor Relations Board does that all the time.

Unknown Speaker: Mr. Bender, there... there are scholars who think that that was a great mistake, our line of decisions which allowed administrative agencies, at the direction of Congress or not, to avoid the right to jury trial by imposing civil crime... so-called civil penalties.

And I don't know that we want to extend that to a creation by a district judge.

It's serious enough to allow its creation by a legislature.

Mr. Bender: I don't think you do either to a creation by a district judge.

But this case involves a State doing it, and as the Court said in Hicks, if a State characterizes its procedures as civil, the Court ought to defer to that unless it's clearly shown that they aren't civil in character.

Unknown Speaker: Mr. Bender, suppose the State didn't have the civil party in this case.

Suppose the mine owners hadn't sued for an injunction, but there's all this violence that's very dangerous for the community going on, and so the State of Virginia wants to stop it; what kind of proceeding would you have to have?

Mr. Bender: I think the State could do what the Federal Government has done and decide to deal with that kind of a behavior in a strike situation civilly rather than criminally, and pass a statute authorizing a State agency, and I think authorizing the agency to go to court for enforcement of its orders, to operate civilly rather than criminally, because that's the kind of thing where that choice is available.

This case is more difficult than that because in this case the State doesn't have a statute like that.

But the judge said at the outset that he was proceeding civilly; I think trying to do it in the same way the National Labor Relations Board--

Unknown Speaker: Since he didn't have a statutory regime like that, the characterization of this case as civil, then, depends on the existence of a civil party.

Mr. Bender: --Yes.

Unknown Speaker: And if that's so, then when the civil party departs and says I'm through, then how can the State continue to maintain that it's civil?

Mr. Bender: The government can be a civil party, and the State in this case, or the judge in this case treated... and so did the Virginia Supreme Court, treated the governments, the county and the State, as being parties to the case.

That's unusual, but I don't think it's unconstitutional.

And so I think what the judge did here was treat the governmental entities as civil parties, and he decided he was proceeding by way of civil procedures in the same way the National Labor Relations Board proceeded against exactly the same strike by way of Federal civil proceedings.

And--

Unknown Speaker: A real party in interest or the... the State isn't named as a party.

Mr. Bender: --That's true.

I agree with you, it's extremely unusual.

I don't think it would happen in Federal court.

But that's not the question in this case.

The question in this case is whether it's constitutional for the State to do that.

Has the State passed the line?

And the Court said in Hicks that there are constitutional rules, but we don't find the State has violated them unless it's extremely clear that the State has violated them.

And the question for the Court in this case is whether it is that extremely clear?

Unknown Speaker: And our model of constitutionality is going to be civil fines by administrative agencies.

Mr. Bender: That is a constitutional way of using civil contempt, yes.

And since it has been... it has been happening and used by the Federal Government for many, many years, I don't think you can say that the State is automatically disentitled to do that.

The question in this case is whether the State has done things in enough of a similar way?

And there are a number of similarities here.

The affirmative nature of some of the injunctions is part of it.

Unknown Speaker: Thank you, Mr. Bender.

Mr. Gold, you have 3 minutes remaining.

Rebuttal of Laurence E. Gold

Mr. Gold: Thank you, Your Honor.

Let me begin by responding to the last point Mr. Bender makes... made, and call the Court's attention to page 13 of our reply brief and Note 9.

There is nothing in any of the Virginia court decisions or opinions which treats the State or the counties as parties.

It was the court itself becoming a party through a special master--

Unknown Speaker: The Labor Board doesn't have to announce in advance what the fines will be, which is, assertedly, what distinguishes this and makes it civil contempt, right?

The Labor Board can just say you don't do this, and if you do it I will impose a civil fine.

Mr. Gold: --Right.

And--

Unknown Speaker: And that's what we're going to extend to district judges, I assume.

Mr. Gold: --Well, beyond that... that point, with which I agree insofar as it's a debater's point rather than a prediction, the fact of the matter is that 100 people could disagree which way you deter most effectively: by saying, as Justice Souter did, if you do what I have prohibited you from doing, there will be very serious penalties, or saying the maximum penalty would be $100,000.

To say that one is an indicia of a remedial intent and the other of a punitive, retributive intent, as we attempt to argue, just will not wash.

Beyond that, let me say that unless... there are two things that I would like to emphasize that my brother said.

Mr. Bender began by talking about compensatory relief.

We have stated in every paper filed that the provision of compensatory relief, generously conceived, is the province of civil contempt.

We're talking about noncompensatory fines, payable to the State, growing out of a private lawsuit, or imprisonment.

Secondly, Mr. Roberts, unless I mistake him, suggested that there's a line between wrongs that are malum in se and other wrongs.

What the underlying wrongs here alleged were violence, vandalism, and so on.

And finally, it is of the essence that the issues to be decided were not issues of the kind that were in the history of equity: provide these papers, do this, do that.

The union argued that such wrongs as were--

Unknown Speaker: Thank you, Mr. Gold.

Your time has expired.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Hicks v. Feiock - Oral Argument

Wed, 13 Apr 2011 20:11:44 +0000

Case:

Hicks v. Feiock

Media File:

86-787_19871201-argument.mp3

Related Transcript:

86-787_19871201-argument.xml

Transcript:

ORAL ARGUMENT OF MICHAEL R. CAPIZZI, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear arguments next in Cecil Hicks, District Attorney for Orange County, California, acting on behalf of Alta Sue Feiock versus Phillip William Feiock.

Mr. Capizzi, you may proceed whenever you are ready.

Mr. Capizzi: Thank you.

Mr. Chief Justice, honorable associate Justices, if it may please the Court, this is a case that will determine whether Mr. Feiock and the Feiocks of this country may sit on their hands and defy with impunity valid court orders to provide support for their minor children.

This case originated in the State of Ohio when Alta Sue Feiock, the mother of respondent's three children, petitioned the Ohio courts for support under the Uniform Reciprocal Enforcement of Support Act, URESA.

The petition was forwarded to California, where the Orange County District Attorney's office in turn filed a petition with the California Superior Court seeking an order for support.

Following a hearing an order for support was entered directing payment of $50 per month per child, and that was in fact a reduction from the original $75 per month per child which had been ordered at the time of the divorce some eight years earlier.

The Orange County District Attorney's office was acting in this case not as the public prosecutor, but as the attorney for Alta Sue Feiock for the sole purpose of gaining the support due her and her children.

This was not a welfare case.

There was not an effort to recoup welfare moneys.

There was, however, an interest in assuring that Mrs. Feiock would not be a welfare recipient, but more importantly, this case represents a strong and fundamental interest that the state has in assuring minor children that they shall have the support that is due them.

The children have always had a special place in our system, and there is no reason why they should not in matters of child support.

After the order was entered, over the next 12 months Mr. Feiock the respondent, paid three months, but for the other nine months he sent not one thin dime.

He was cited for contempt, and in the concept hearing the petitioner herein relied on California Code of Civil Procedure 1209.5.

With somewhere in the neighborhood of 35,000 family support matters in the active cases of the Orange County District Attorney's office, it is essential that reliance can be made on a statute such as 1209.5.

Unidentified Justice: What is the present population of Orange County?

Do you know, Mr. Capizzi?

Mr. Capizzi: Something in excess of two million.

Unidentified Justice: Two million.

Mr. Capizzi: Yes.

Of course, that is the 35,000 cases are all types, the litigation, the enforcing reciprocal cases from other states, those that have enforcement orders, and the criminal cases that are filed in that connection.

There just aren't sufficient resources for even a public agency to pursue cases such as this without reliance on the statute involved in this case, and certainly if a public agency doesn't have the resources, the private individual who often times seeks to assert their own support, enforcement of their own support orders individually couldn't even begin to pursue those on their own.

Unidentified Justice: Well, Mr. Capizzi, the California Court of Appeals held that the California statutes make this contempt proceeding criminal in nature.

Mr. Capizzi: Yes, Justice O'Connor.

Unidentified Justice: Now, I guess California is entitled to determine that for itself as a matter of state law, isn't it?

Mr. Capizzi: Well, it can place whatever label it chooses on a case, and this case the court below did term the case criminal.

I would submit that the--

Unidentified Justice: So is it a matter, is it a question of federal law for purposes of answering whether the federal constitution is violated?

Mr. Capizzi: --I think that unquestionably it is and be that as it may I would submit that the court below was wrong in terming this case criminal even under California law.

Unidentified Justice: Well, but you don't really want us to get in there, do you, and say that the California Court of Appeals was wrong as a matter of California law?

Are we likely to do that, and can you give me examples of where we have done that?

Mr. Capizzi: Well, I think the Court has always looked to the highest court... this Court has looked to the highest court of the state in determining what the state law is.

Unidentified Justice: Well, why would we want to do that if it is a question of federal law for purposes of the federal constitutional question?

You spent a lot of time in your brief arguing this, and I had a hard time understanding whether you seriously thought we were going to overturn the California court on a question of what the California law is.

Mr. Capizzi: No, we merely meant to set the record straight, and point out that the California Supreme Court has held repeatedly that there are still two types of contempt in California, civil and criminal, but that is absolutely correct.

As far as the constitutional analysis is concerned, it doesn't matter what label California puts on it.

Otherwise a state could deprive this Court of determining in what instances the constitutional provisions of the Fourteenth Amendment will or will not apply.

Now, I suppose we could decide that as a matter of federal law for federal purposes this has the characteristics of a civil proceeding, but that wouldn't mean that California when it went back couldn't treat it as something else for its purposes and under the California constitution.

That's true.

California could do that.

But they haven't done that in this case.

The courts have repeatedly said that there's a distinction between civil and criminal contempt, and the California Supreme Court repeatedly over the years has said that civil is to protect the rights of litigants and criminal is to vindicate the dignity or authority of the court, and--

Unidentified Justice: But it is up to California to decide what it is coming with a... I mean, that is a purposive test, and it is California's purpose.

If California says that it is criminal, who are we to say that it isn't?

Mr. Capizzi: --California has not said that it is criminal, Justice Scalia.

Unidentified Justice: You are arguing that it doesn't matter what California said.

You are arguing that it doesn't matter, and I am saying if it is a purposive test you are urging upon us, it does matter.

What is California's purpose?

If California's purpose is criminal, then that is the end of the matter as far as that issue is concerned.

I agree with you.

I think that California has not said that.

Mr. Capizzi: That's correct.

Unidentified Justice: It has applied certain protections that are normally applicable in a criminal context.

But they can also do that if they want.

Mr. Capizzi: Yes, Justice Blackmun, that is correct.

They have continued to draw the distinction between civil and criminal contempt.

One is punitive, criminal, coercive, is civil.

They have extended the procedural safeguards otherwise applicable in a criminal case to the civil contempt proceeding.

Unidentified Justice: That is a different issue.

You are arguing what California has done.

I am asking why it should be true, the other point that you say, that it doesn't matter what California has done, that even if California has called it criminal, you urge upon us that we are not bound to accept that, and I don't see how that follows at al. It seems to me we are bound to accept it.

Mr. Capizzi: If California should suggest, Justice Scalia, that in a civil case where there are punitive damages those are penal in nature, as they have said in contempt proceedings, the potential of a jail sentence is penal, and because punitive damages are potentially penal, we are going to extend the procedural safeguards of a criminal case, not because they are constitutionally required, but because as a state we are going to extend those rights in the civil case.

Thus we would has we have in the contempt setting, have a description of these civil cases as quasicriminal or criminal in nature because we have extended procedural safeguards otherwise available in criminal cases, and then respondent would come before you and say, because these are criminal in nature we have extended the safeguards of a criminal case, the libel case in which we are seeking punitive damages, that, too, is criminal.

The tort case where we are seeking punitive damages, that, too, is criminal.

The bad faith insurance case where we are seeking punitive damages, that, too, is criminal, and that would deprive this Court of determining when and in what setting the constitutional provisions of the due process clause are to apply, and I would submit that the appropriate test is to analyze what the hearing is substantively.

Unidentified Justice: Mr. Capizzi, I am looking at page A6 of the petition for writ of certiorari where you have the opinion of the Court of Appeal, and I am looking at the second full paragraph on the page, the second sentence, where its says,

"Our Supreme Court recently discussed the problem raised by the use of presumptions in criminal cases in people against Roder. "

Now, does the Court of Appeal opinion have any more discussion than that of why it considered this a criminal proceeding rather than a civil proceeding?

Mr. Capizzi: No.

I would submit that it is lacking in analysis as to why it considered it a criminal proceeding.

Unidentified Justice: Have there been other cases from the Supreme Court of California that have said this kind of proceeding is a criminal rather than a civil proceeding?

Mr. Capizzi: No.

In fact, the Roder case did not say a contempt proceeding is a criminal proceeding.

Unidentified Justice: Roder wasn't a contempt case, was it?

Mr. Capizzi: No, it was not a contempt.

It involved the constitutionality of a state statute involving a presumption and prima facie case.

Unidentified Justice: What significance do you give to the sentence on page A8, contempt is quasi-criminal and requires proof beyond a reasonable doubt?

Mr. Capizzi: That is what the California courts have required for in excess of 100 years.

Unidentified Justice: In civil contempt proceedings as well as criminal?

Mr. Capizzi: In civil as well as criminal, and that is why civil contempt proceedings because they have the potential for a jail sentence if the coercive order is violated, they have been given in civil contempt proceedings many of the procedural safeguards that would otherwise be available to a criminal defendant, and as a result, over the 100 years or so, the civil contempt proceedings have been referred to as quasi-criminal and criminal in nature, but that doesn't make them criminal substantively, and as this Court has said in Shilitani versus United States, that we are going to look at the substance, not the procedure by which the order for contempt came about.

Shillitani was a case under Rule 42, the Rules of Criminal Procedure.

As Justice Harland pointed out in footnote 3 in a dissenting opinion, but it called attention to the record below, the judgment and commitment was for guilty of criminal contempt but this Court went beyond the procedural aspects of it and looked at the matter substantively, and because the order of two years in jail or until purging oneself of contempt by testifying before the grand Jury was the order, it was concluded that it was coercive and not subject to the procedural aspects of a true criminal case.

Unidentified Justice: What was the procedure that was involved there that we said was not necessary?

Mr. Capizzi: In Shillitani?

Unidentified Justice: Yes.

Mr. Capizzi: It was the jury trial--

Unidentified Justice: Now, you are urging here that what is not necessary is not only... not only the burden of persuasion... not only the burden of initiation of the evidence, production being placed on the plaintiff, but also the burden of persuasion.

So if I understand your case correctly, it is that although this individual should not be liable for the payments unless he can afford them, although that is part of the case, if the court can't make up its mind, if it is unclear, I don't... if the court finally concludes on the basis of all the evidence, I cant really tell whether he can afford these payments or not, the court will then send him to jail.

That is what you are urging.

Mr. Capizzi: --No, we are not, Justice Scalia.

We are urging that since this is a civil case, the determination of whether the statute meets the due process clause of the Fourteenth Amendment should be analyzed in terms of a civil rule, and in a civil context.

Unidentified Justice: The Court of Appeals certainly ruled clearly enough that the burden of proving the ability to pay is on the prosecution.

Mr. Capizzi: The Court expressed that, and again--

Unidentified Justice: As a matter of California law.

Mr. Capizzi: --But it misstated California law, Justice White.

Unidentified Justice: Well, I don't know how you can convince us of that, but I thought that... I didn't read your brief and disagree especially with that.

I just thought that you thought that an inference of the ability to pay could be drawn from that.

Mr. Capizzi: The statute points out that if there is an order--

Unidentified Justice: Right.

Mr. Capizzi: --there is knowledge of the order--

Unidentified Justice: Yes.

Mr. Capizzi: --and there is a violation, it hasn't been paid, that that is prima facie evidence of contempt, and even if we are to--

Unidentified Justice: You are just saying that the statute says that the prosecution's burden is satisfied when you prove the things that you just mentioned.

Mr. Capizzi: --That is correct, and that is consistent with an early California Supreme Court case, In re McCarty, which likewise said those are the three elements of contempt.

In that case it was an alimony case, but there should be no difference for that analysis between the alimony case and the child support case, and that was the rule in California for a number of years.

Unidentified Justice: Did your brief argue that this statute shifted the burden of persuasion on ability?

I thought you just said it shifted the burden of production.

Mr. Capizzi: The court below--

Unidentified Justice: What about your brief?

Mr. Capizzi: --Our brief expresses that it shifts to the respondent the burden of production.

Unidentified Justice: But the burden of proving ability rests on the... remains on the prosecution.

Mr. Capizzi: No, the... again--

Unidentified Justice: Well, you can't do it both ways.

Mr. Capizzi: --the California Supreme Court has repeatedly said that inability to pay is an affirmative defense.

Unidentified Justice: Yes.

Mr. Capizzi: And as an affirmative defense the respondent has the burden of producing evidence.

Unidentified Justice: Well, we have got--

--You are talking about proving, not producing evidence.

You keep... do you say that the burden of proving it is also on the defendant?

You do say that in your brief, don't you?

You say, as an affirmative defense he not only has to go forward, but he has to prove that he can't pay.

Yes or no?

Mr. Capizzi: No.

Unidentified Justice: It seems to me that could take--

Mr. Capizzi: No.

No.

Unidentified Justice: --You don't say that.

Mr. Capizzi: Justice Scalia, what we--

Unidentified Justice: But that is what the Court of Appeals said, isn't it?

Mr. Capizzi: --The Court of Appeals said--

Unidentified Justice: The Court of Appeals said that California law puts the burden of persuasion on the respondent.

I understood your brief to say that is wrong as a matter of California law.

Mr. Capizzi: --That's correct, Justice O'Connor.

Unidentified Justice: Again, you don't want us to decide that, do you?

Mr. Capizzi: I don't think it is necessary.

It is a civil case, and as a civil case either a burden of production or a burden of proof is appropriate, and the statute places this case in much the same position if not identical position as the circumstances this Court addressed in Rylander versus United States.

The statute--

Unidentified Justice: Well, Rylander involved a situation where only the burden of production shifted.

Mr. Capizzi: --That's correct, Justice O'Connor.

Unidentified Justice: Well, do you lose this case if the burden of persuasion is also involved and placed on the defendant?

Mr. Capizzi: No, I don't believe we do.

Unidentified Justice: I don't think you do, either.

Mr. Capizzi: It is a civil case, and regardless of whether it is the burden of persuasion or the burden of production, there is a rational connection between the proven fact and the presumed fact.

I would submit, however, assuming just for the sake of argument that this were a criminal case, that the statute would meet the heavier beyond a reasonable doubt standard that is required in the criminal case.

It is... if we have an individual who is ordered to pay support, I think it is... a reasonable person would seek to modify that order if he could no longer make the support payments.

His failure to seek modification causes the missed payments to accrue and build in arrearage, which some day he is going to have to pay, as he was ordered to pay even in this case, because even though he was found not guilty on some of the months of contempt, at the time of the hearing he was still found able to pay in installments and was ordered to make payments even for those months for which he could not have been held in contempt because of the coercive nature of it and the fact that the missed support payments accrue.

Now, a reasonable person would seek to modify that order if he truly had no ability to pay.

And his failure to seek modification is a tacit admission that the order remains valid and reliable.

And that is especially true in California, having enacted a code section, Civil Code 4700.1, that makes it extremely easy for an individual to modify a support order.

It is almost as though it is a small claims action, and attorneys are not required, and its express purpose is to make it easy to modify a support order.

So given those factors, it seems to me a reasonable person would modify and an unmodified order supports the presumed fact beyond a reasonable doubt that the original order is still valid.

Unidentified Justice: Mr. Capizzi, whether California decides to or not, and whether you argue it here or not, I had the impression... I don't know which of the briefs I got it from, that most states do place the burden on the defendant, not just for production but of persuasion.

Is that--

Mr. Capizzi: That's correct.

Unidentified Justice: --That is correct.

Mr. Capizzi: It is a burden of producing... or burden of proof in most states.

I would submit that with respect to whether in this case it was a burden of production or a burden of proof, we should look to the cases in California which have said that it was a burden of production.

We should look to the treatises in California which say it is a burden of production, 1209.5.

We should look to Penal Code section 270, the criminal nonsupport section, and the California Supreme Court, People versus Sorenson, interpreting a presumption in that criminal section very comparable to the presumption here as being one involving the burden of producing evidence.

Now, I submit that we should examine those even though they were ignored by the Court of Appeal below, and the reason we should examine those is because even though the court below ignored them, the trial judge didn't.

And just as in Ulster versus Allen, in Footnote 16, this Court said we should look to the jury instructions and how it was treated at the trial level.

The presumption in this case was treated at the trial level by the trial judge as one affecting the burden of proof.

All of the other cases, the treatises were available to him.

He expressed an awareness of the long-standing law.

And he expressly stated on the record that he was treating it as affecting the burden of going forwards, which is another way of saying the burden of producing evidence.

And it was based on the way it was treated by the trial court and the laws in California which treats a presumption affecting the burden of producing evidence almost the same way as this Court analyzed a permissive inference in Allen... in Ulster County versus Allen.

The Evidence Code Section 604, which sets forth how that presumption affecting the burden of producing evidence is to be used is almost identical to the definition of a permissive inference in Ulster County versus Allen, and therefore even if we were to assume that it was a criminal case, I submit that it was treated by the trial court as a burden, as a presumption affecting the burden of producing evidence, and as such meets the due process requirements of the Fourteenth Amendment.

We would submit that the order of the court below finding the statute unconstitutional was in error and--

Unidentified Justice: Let me ask you one final question.

As I remember, and I may have this incorrectly in mind, but the trial judge here did conduct a hearing on the question of ability to pay.

Mr. Capizzi: --Yes.

Unidentified Justice: And concluded that there was ability to pay with respect to at least a portion of the disputed period.

Does his... do his remarks... it is not clear from the part that is quoted in your brief.

Do his remarks indicate where he thought the burden of proof was, which way the preponderance of the evidence went?

In other words, if he said in so many words, I find the evidence to convince me and it is not equally balanced, I am not relying on any presumptions, I find on the facts here that this man had an ability to pay, and I therefore hold him in contempt, it seems a little strange to be arguing about all this argument about presumptions.

I mean, isn't that the end of the case?

Mr. Capizzi: He did, Justice Stevens, make a finding that there was ability to pay.

After first relying on the presumption which the trial judge treated as one affecting the burden of producing evidence, and once the respondent then produced evidence under California law that showed the nonexistence of the presumed fact, then the court was required to treat the evidence without reference to the presumption, and based upon his analysis then of the evidence, including the testimony of the respondent, he found him guilty of the five counts of contempt and dismissed four of the counts.

Unidentified Justice: Right.

Mr. Capizzi: And then made the findings that he had the ability to pay and entered the coercive order.

Unidentified Justice: What I am really asking is whether in the actual decision of this case did the allocation of the burden of proof actually have any impact on the outcome.

Mr. Capizzi: Not the ultimate result, no.

It assisted in travelling the path to reach that, but ultimately it was based upon the testimony of the defendant.

We would submit the court below erred and the order finding the statute unconstitutional should be reversed, and with the Court's permission we would like to reserve the remainder of our time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Capizzi.

We will now hear from you, Mr. Schwartzberg.

ORAL ARGUMENT OF RICHARD LYNN SCHWARTZBERG, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Schwartzberg: Mr. Chief Justice and the associate Justices of the Supreme Court, and may it please the Court, the issue, contrary to a number of the amicus briefs that were filed in this case, I would suggest, is rather narrow, and I would suggest it has almost no national importance.

What we are here to decide is the interpretation of a very specific California statute which affects a civil contempt in the criminal venue for only California makes that definition.

What I would suggest, however, is that the significance of this debate concerns almost a century of California jurisprudence concerning civil contempt.

What I would suggest to the Court is that there are a number of rigs which this Court in Boykin versus Alabama has applied to criminal cases, which, if this Court adopts the position of the petitioner, will eviscerate, will essentially vacate.

Those rights are self-incrimination, both the right not to have to testify and the right not to be called as witnesses, the right to counsel in California, and I would suggest a right which is perhaps more fundamental than those rights in Boykin versus Alabama, that is the right to have proof beyond a reasonable doubt as to each and every element of the charge as contained in the case, this Court's case of In re Winship.

I would suggest that whether 1209.5 violated the Fifth Amendment involves three questions.

The first question is, does 1209, which is the general scheme for contempts in California, define a crime with the element of the ability to pay.

Second, if it does, may this Court redefine that definition of a crime to suit the Court's federal interpretation of what a civil contempt is.

And finally, does it offend the Fifth Amendment if it is a crime?

I think that the answer to whether 1209 defines a crime in California is an unequivocal yes.

In fact, all the Court needs to do is to turn to a case which was decided in the 1940s called Bennet versus Superior Court, and I would merely quote the first line of the third paragraph on Page 210, where the Court says,

"Contempt of court is a specific criminal offense. "

Now, they get that from McClatchie versus Superior Court, which is at 119 Cal. They get that from In Ex Parte Gould, which is at 99 Cal., both 1800s California Supreme Court cases.

Now, one of the questions that the Court asked Mr. Capizzi was, why is it that the Court of Appeal dealt in sense with such short shrift with the question of whether it was criminal or not, and the answer is simple.

They knew what it was.

And there wasn't any need to have any particular extended analysis of that issue because every Court of Appeal knows what it is.

Unidentified Justice: Mr. Schwartzberg, it seems to me that what the California Court of Appeals did ultimately was to say that the California statute as applied here was invalid as a matter of federal constitutional law.

Mr. Schwartzberg: I would concede that, yes.

Unidentified Justice: So is it not also a question of federal law whether this statute is indeed civil in nature or criminal for purposes of answering the federal constitutional question?

Mr. Schwartzberg: No, Justice O'Connor, no more than--

Unidentified Justice: No?

I would have thought perhaps it was, that if we are going to say the federal Constitution strikes it down because it is criminal in nature, that it is a matter of federal law whether this thing is criminal in nature for federal purposes.

Mr. Schwartzberg: --Well, I think the answer to that is this.

If, for whatever reason, the federal government had no murder statute, and then, in fact, let us assume that murder on the federal level was never a crime, but California chose to treat murder as a crime, a felony, and they had a statute that was similar to that in Martin versus Ohio, I don't think this Court would have any trouble striking that statute down, as violating the Fifth Amendment.

Unidentified Justice: Well, Mr. Schwartzberg, what about a case like Shillitani v. The United States which at least indicates that we are free to examine the purpose of the contempt proceeding and characterize it as civil in this instance because it was for the purpose of coercing the payment of the money.

Mr. Schwartzberg: I don't know how to reconcile that with California, and I think California would have trouble reconciling it with Shillitani.

It is the same reason, I think, that the Supreme Court in Culver City tried to make it clear that California was not... I think the problem here is that the legislature used the label "civil".

The fact is that the courts have been calling it a "crime".

Not criminal in nature, not a criminal action, but a crime in California.

Unidentified Justice: Well, I think that is perfectly all right if California wants to do that.

The problem is that we have a California court that has rested its holding on the Federal Constitution.

Now, we can decide that issue, I suppose, and leave California free to call it whatever it wants and impose whatever requirements it wants as a matter of California law.

Mr. Schwartzberg: I think the difficulty with that is that we are putting the cart before the horse.

I think that what the Court of Appeal said was that what we have here is a crime.

A crime no different than any misdemeanor or felony in the State of California.

And their conclusion was that once you had it as a crime, then the decision such as this Court's decision in Rylander do not have any effect.

And then that, in essence, once you determine this is a criminal act, a crime punishable as a crime in California, that this Court's opinions then presuppose that various rights inure.

And one of those rights is the Fifth Amendment.

And what I would suggest to the Court--

Unidentified Justice: I assume that to some extent, the answer to Justice O'Connor's question must depend upon what the Federal test for criminality is.

If the Federal test for criminality is purpose, if whether the purpose of the penalty is to coerce or to punish and if the State says: Our purpose in applying these penalties is to punish, it would be very hard for us to say,

"No, you are wrong, California. "

"Your purpose is not to punish. "

California is certainly dispositive as to what its purpose is.

So, it would depend on what test we are applying; wouldn't it?

Mr. Schwartzberg: --Not only that, but I would go one step further.

And what I would suggest to the Court and I tried to present it in my brief, which is that California has a very unusual legislative scheme which is that we have 166, which is a specific penal statute governing contempt of court and it covers the same act, the same exact act that is prosecuted here.

The difference between 1209 and criminal intent in 166 is that only the people in the State of California can bring a 166 action, but a civil litigant, in other words, a custodial parent, typically, the mother, can hire counsel and bring a civil contempt which is a criminal action.

And for that reason, what I am suggesting is that the California Supreme Court in Culver City and going all the way back to Gould said there are... all these contempts are contained in different places in our legislative scheme, but they are all the same crime.

They just carry different kinds of right.

Unidentified Justice: May I pursue Justice O'Connor's inquiry with a hypothetical?

Supposing a state differently from all other states passed a statute saying that the negligent operation of a motor vehicle shall be a crime.

And it said, (1) you can go to jail, and all the rest of it, but also have a separate proceeding that the person thereby injured by proof, just by a preponderance of the evidence that he was hurt by the negligent operation, after he proves a crime by a preponderance of the evidence, he can get damages.

Would that comport with the Fifth Amendment?

They call it a crime and they say the private litigant gets a remedy on the basis of it by a preponderance of the evidence.

Does the fact they call it a crime mean that Winship applies?

Mr. Schwartzberg: Well, I am having a little bit of trouble with the analogy because I am not entirely certain as to whether the courts are determining that the civil cause of action is itself a crime.

Unidentified Justice: Yes, the statute says: Negligent operation of the vehicle is a crime.

And it may be proved.

The crime may be proved in a civil proceeding by a preponderance of the evidence.

And, if you get a jury, you instruct them that having done this is a crime and the consequence of the crime is you have got to pay damages to the plaintiff.

The fact that they call it a crime, in your view, I take it, would require all these other protections.

Mr. Schwartzberg: I would be less than frank if I told the Court I really can answer that question.

I can't because I... in essence, what you are saying is that a private prosecutor can come in and obtain damages for a crime.

Unidentified Justice: No.

What I am saying is what a state calls the proceeding may not be binding on us in interpreting the Federal Constitution.

That's what I am saying.

Mr. Schwartzberg: I hope that this does not devolve into a semantics debate because I don't think that when we say we are calling it a crime that that is all we are doing and that it is not a crime in fact.

Unidentified Justice: But do you say, though, that the California rules applicable to this kind of proceeding should be judged by the same standards that apply to similar rules that produce similar consequences in other states except they don't call it a crime.

Mr. Schwartzberg: I don't think that they have anything to do with each other.

I just don't.

Unidentified Justice: So, our case pertains only to California?

Mr. Schwartzberg: Yes.

And that's why I say I think that contrary to some of the amicus who are concerned about the national ramifications of this, I don't think they have any.

Unidentified Justice: Well, what if California that has a statute that says, for negligently driving while drunk, you can have your license revoked, your motor vehicle operator's permit revoked, and the California courts say,

"Well, gee, this is pretty tough on the motorist. "

"We think it is a criminal proceeding. "

And then we talk about presumptions and what the burden of proof.

Now, can this Court if a California court says one of those procedural aspects is invalid under Federal Constitution, can we not reexamine to see whether or not this meets the definition of a "crime" for some of our cases?

Mr. Schwartzberg: Well, I think the answer to that is that if the California court's interpretation is unambiguous that notwithstanding the fact that this may only involve an administrative penalty, whether it is loss of license, loss of privilege, loss of money or jail, I think that if the California court says that in California, that act is a crime, then I think this court, not bound to accept that determination, in effect, I think this Court must apply those Federal constitutional guarantees which apply to a criminal act within the context of this Court's decisions.

So, I would concede, for instance, that this Court does not require counsel in every criminal proceeding, but that does not mean that in those criminal proceedings where the Court does require counsel.

In other words, where the penalty is not de minimis that counsel has to be applied in that proceeding.

And what I would suggest, if we look at this case backwards, if the Court notes that California courts have traditionally, since 1893, applied and felt compelled to apply Federal constitutional rights to civil contempts, the answer is that they must know that it is a crime.

And, in fact, there are no cases--

Unidentified Justice: But how does one "know" that it is a crime?

Mr. Schwartzberg: --Because the courts have, since 1893, defined it as a crime and have treated it as a crime.

Unidentified Justice: And that's all it takes?

You don't want to get into a semantical debate?

Mr. Schwartzberg: Well, I am not suggesting--

Unidentified Justice: Could you tell me, Mr. Schwartzberg, could you tell me, because it makes a difference to my answer to the question we are discussing why California has said it is a crime?

Have they said it is a crime because it is a punishment?

Mr. Schwartzberg: --Yes.

Unidentified Justice: As opposed to a coercion?

Is that the reason they have said it is a crime?

Mr. Schwartzberg: I don't think there is any doubt that the cases have always defined this as a crime because, as the courts say, the ultimate result is punishment.

And, in fact, Petitioner likes to call this coercive.

The truth of the matter is that these proceedings result in substantial periods of jail time.

And whether that jail time comes up front or whether it comes at the end of a probationary period where the respondent still does not comply with the court's order, and in fact the burden of proof becomes less in a probation situation than it does in a normal criminal proceeding--

Unidentified Justice: Well, Mr. Schwartzberg, isn't the California procedure California's response to the uniform reciprocal support law requirements?

Mr. Schwartzberg: --Well, California's response as to what, Justice O'Connor?

Unidentified Justice: Well, there is a uniform act as you know designed to enable parents with custody of a child to obtain child support.

Mr. Schwartzberg: Yes.

Unidentified Justice: And each state, including California, has responded to that by having provisions such as this for contempt proceedings, for non-payment of child support.

Mr. Schwartzberg: Yes.

Unidentified Justice: And isn't this California's participation in that scheme?

Mr. Schwartzberg: Well, the 1209.5 may be, Justice O'Connor, but the original 1209 statute which presents a contempt remedy is not--

Unidentified Justice: Well, 1209.5 is what we are dealing with.

Mr. Schwartzberg: --Yes.

Unidentified Justice: And there is an indication, is there not, in that uniform act that these proceedings are civil in nature for purposes of the uniform act and are designed to coerce the parent who is not making the payments to make the payments.

That is the idea of the uniform act; isn't it?

Mr. Schwartzberg: There is no question about that, but that act does not supercede 1209.

And 1209 is a crime.

Unidentified Justice: Would it be more accurate to say they have dealt with contempt proceedings as a matter of California law as quasi-criminal?

Would that be a little more accurate, maybe?

Mr. Schwartzberg: I would say that the courts when they get to the issue of what species this is, whether it is criminal or civil, have used a number of different labels to govern it.

And that is why I suggested a moment ago to Justice Scalia that one of the... apart from looking at the direct language of the courts to determine whether California considers this a crime is to use deduction and work backwards.

And that is to look at what the courts have done and the only way you can conclude that a defendant on a criminal action or a contempt action in California has a right to counsel, which most states don't provide, has a right to Fifth Amendment privileges most states don't provide.

Unidentified Justice: Well, don't you suppose, Mr. Schwartzberg, that because one of the consequences of this coercive proceeding may be imposition of a jail term that a state as a matter of state law might want to build in extra protections, such as a higher standard of proof.

Mr. Schwartzberg: But, Justice O'Connor, I would agree with you if I could find in the cases... and I have read them over and over, again... any reference either to California's own constitutional provisions which govern the Fifth Amendment which govern the right to counsel.

The truth is that they all relate back to the Fifth Amendment.

And, in fact, in In re: Witherspoon, which was decided by the same Court of Appeal which decided In re: Feiock, the Court of Appeal again noted that this was a criminal proceeding and based upon Supreme Court language from 1893 concluded that a defendant in a criminal action or a contempt action had a right not to be called as a witness and that that was compelled not by California's Constitution, but by the Fifth Amendment.

The leads me, obviously, to the next step which is that--

Unidentified Justice: Before you get there.

Mr. Schwartzberg: --All right.

Unidentified Justice: Do the California courts make any difference between an order in a case like this which says, the defendant's fault in the court and the court says,

"Unless you make these payments that are due, you will go to jail. "

"And you will sit there until you come up with the payments. "

That seems to me coercive.

Does it make any distinction between that and a situation where the person who has failed in the past who makes payments comes before the court and the court says,

"Because you have not made these payments in the past, you are going to jail for three months. "

Is there any distinction?

Mr. Schwartzberg: There is absolutely no distinction in the procedural--

Unidentified Justice: Both of them are called coercive.

Mr. Schwartzberg: --Criminal.

Unidentified Justice: Criminal.

Mr. Schwartzberg: Yes, in fact, when the Court looks at City of Culver City v. Superior Court, essentially, the petitioners in Culver City stand before the court asking them to tell them what kind of contempt this is because they are obviously looking at other jurisdictions and recognizing that depending on what kind of a contempt it is, they get different rights.

And the Supreme Court said,

"We don't care what you call it, because it is all the same. "

Now, that may sound like Alice in Wonderland, but the courts have essentially eviscerated any distinction between civil and criminal contempt, the traditional forms.

They discuss what they are.

There is no question about that.

They are not blind to that.

But when we get down to the procedural niceties of what a contempt is, there is no question that the courts in California treat it as a crime.

It is a misdemeanor because it is not punishable by more than a year in county jail.

Unidentified Justice: Yes, but in this very case, if this man came up with the money that is in arreared and paid it in the court or paid it for his children's support, would he not immediately get out of jail?

Mr. Schwartzberg: Well, first of all, he is not in jail and never was.

He was placed on probation.

And, essentially, the probation grant ordered him to do two things.

It ordered him to make future payments on penalty of going to jail and it ordered him to make past payments on penalty of going to jail.

Unidentified Justice: And what I am saying is if he makes the past payments, he won't go to jail, if he complies with the order.

Mr. Schwartzberg: It is clear that essentially through the minority of his children's lives, if he never misses a payment he will not go to jail.

Unidentified Justice: So, it is clear that this order in other jurisdictions would be treated as a coercive and a civil contempt.

Mr. Schwartzberg: Correct.

And I have conceded that in my briefs.

And that is why I say that I think that California has chosen because of the threat of jail to call it a crime.

Unidentified Justice: See, you are suggesting, I think, in my hypothetical example about a negligence case, if a state not only called it a crime, but also said,

"We will appoint counsel and we will give the defendant the privilege of not getting on the stand, but the only remedy is you pay damages. "

You would say that having given some constitutional rights to a proceeding that is labeled criminal means all other criminal rights must go with it.

Mr. Schwartzberg: No, not based upon what you just said.

Depending upon where the genesis of those rights comes from.

Unidentified Justice: Well, it comes from California or my hypothetical state's mistaken belief it was compelled to do so by the Federal Constitution.

Mr. Schwartzberg: Well, if you assume it is erroneous then, obviously, I lose.

But I don't assume that their decision was erroneous.

Unidentified Justice: They say it was based on the Federal Constitution and that's why they do it.

It is the fact that, (a) they call it criminal; and (b) they think as a matter of Federal Constitutional law they had to do it.

Does that mean that we must agree with them that it is--

Mr. Schwartzberg: Well, I wouldn't put it that way.

Unidentified Justice: --What else do you have in this case?

You have California classifying this as criminal proceeding and giving a lot of rights to the defendant.

Mr. Schwartzberg: Sure.

Because it is a crime.

Unidentified Justice: It is a crime because they call it a crime.

Mr. Schwartzberg: But that is always the predicate.

Isn't that always true for any wrongful act?

Unidentified Justice: No.

The state also identifies certain sanctions that require that then there are rights--

Mr. Schwartzberg: Well, then maybe we ought to make it clear.

This is a crime.

The sanctions in this case are no different than in any other crime.

Unidentified Justice: --Yes, they are because the defendant here carries the key to the prison--

Mr. Schwartzberg: And so does every other criminal defendant in California.

If I go out and commit a robbery in California, and I am convicted of that robbery, the penalty is either probation or prison.

A court could place me on probation and could stay the imposition of that prison sentence and if I am a good boy for three years on that probation grant, I will never see a day of time.

Unidentified Justice: --Yes, but it could also say,

"You are going to jail for three years. "

"I don't care whether you make restitution or not. "

Mr. Schwartzberg: And so can they under the civil contempt statute.

That's the analogy I want to break.

Under the civil contempt statute, there is no obligation that the trial court place the contemptor on probation and give him another chance.

The court can simply say, "Off to the hoosegow".

Unidentified Justice: But if he does that, then I think everyone would agree that is the equivalent of a criminal procedure.

Mr. Schwartzberg: But we don't define whether a matter is criminal after we find out what the sentencing is when the state has already said that it is criminal.

And that is the problem we are having.

Unidentified Justice: Could I ask you, Mr. Schwartzberg, if we disagree with you and say that California's notion about whether this law is criminal or civil doesn't bind us and we decide that we will treat it as civil, do you lose?

Mr. Schwartzberg: Yes.

Unidentified Justice: Why?

Mr. Schwartzberg: I lose because I would concede that under Rylander and Usury that the inferences, the burden shifting that this statute accomplishes do not offend the Fifth Amendment in civil matters.

I would concede that, and I have conceded that all along.

Unidentified Justice: Yes.

All right.

Mr. Schwartzberg: Let me go a little bit further here and indicate to the Court this.

One of the things that I think this case presents by the petitioner is essentially... comes out of some for the same questions as the Court was asking Mr. Capizzi, and that is do we essentially allow petitioner to relitigate the definition of state law before this Court when they have essentially lost that opportunity in the Courts below?

What I would suggest to the Court is that these issues, if the Court looks through the original briefs that were filed in this case, the Court will notice two things.

Petitioner never argued to the Court of Appeal that this was not a crime.

And Number Two, they never argued to the Court of Appeal that as an element of that crime we add ability to pay.

Essentially they went to the Court of Appeal and they argued that 1209.5, notwithstanding these two assumptions, did not offend the Fifth Amendment, and perhaps that is why you have the Court of Appeal providing short shrift to what we are now arguing amongst ourselves.

The fact is that petitioner has also argued in their brief, and I have had--

Unidentified Justice: Well, yes, but the Court of Appeal didn't give short shrift to the notion that this is the kind of a proceeding in which shifting the burden of persuasion is unconstitutional.

Mr. Schwartzberg: --No, because they knew from the outset that they were dealing with a crime in California, and once they had that as a predicate, then the only other question that they had to resolve was whether the wording of 1209.5 offended the Fifth Amendment, and they didn't have any trouble reaching that conclusion either.

And the reason we know that they wouldn't have any trouble is because essentially this shifts everything onto the defendant.

We know that.

Unidentified Justice: You seem to be arguing that we just aren't entitled at all to ask whether or not this is close enough to a crime to trigger these protections.

Mr. Schwartzberg: I would be fearful to use the word entitled, but I would hope to argue to the Court--

Unidentified Justice: Don't be fearful.

Mr. Schwartzberg: --I would hope to argue to the Court that, yes, the answer is is that this case is very similar in some respects to Runi.

I mean I just... I see... my view is that what the Court is being asked to do is to rewrite the opinion but I think that the answer has to remain the same.

My belief is, and I think that the cases support it, and in fact in the reply brief that petitioner filed just last week essentially petitioners... I consider their central argument to be on Page 9 that this Court must define the subject matter of a statute solely in federal terms.

If that is true then what I would suggest is that if the federal government in 49 states make a wrong a civil cause of action, providing for injunctive relief, let's say pouring 1,000 gallons or sulfuric acid down a drain, they make it a civil wrong, they allow for injunctive relief to stop it from happening, and damages to punish the wilful or the wrongdoer for what he did, and California thinks that it is more important to protect its citizens on its water quality because we don't have any water in California, and so they make it a felony.

Essentially what I see petitioner arguing is that he would come here and say it is not a crime, because nobody else makes it a crime, and perhaps it wasn't a crime under common law.

Unidentified Justice: So the example would have to be they made it a felony but they way the only remedy for committing this felony is an injunction or a cease and desist order.

If they did that would your position be just as strong?

Mr. Schwartzberg: I don't know.

I would suggest to the Court that if California chooses to make something criminal, and we are getting back to the semantic argument, I don't know how to get out of it, and this is the problem I think you have seen in our briefs, if they make something criminal, does the definition of a crime only flow from the punishment, and I don't know that the answer to that is true, because there are many acts in society which may be labeled a crime which perhaps don't even carry the punishment.

Unidentified Justice: But I think you have agreed that California could solve this problem.

Instead of coming here with their lawsuit, they could have gone to the Supreme Court and said, we want a new rule defining this species of contempt the same way every other state does.

Mr. Schwartzberg: Justice Stevens, they did, and they got one vote.

I mean, I think that is why we are here, and I think the answer is that since 1893 the legislature has not known what this is, they have seen various rights being compelled by the Fifth Amendment.

You don't have to be Phi Beta Kappa to figure out that must mean it is a crime, and they haven't amended the statute of 1209, and the reason for that is because they are quite content with what it is.

Unidentified Justice: If that is true and they want to keep this burden of proof, they can, no matter what we decide, they can say as a matter of California law we are still going to require that the burden of proof on this issue be placed on the other party.

Mr. Schwartzberg: I don't think they can do that as long as the Fifth Amendment exists, but I think what they can't do--

Unidentified Justice: No, no, no, I mean they could take your position, which you say they have now.

Mr. Schwartzberg: --They don't need to.

We have already essentially eviscerated the law in California, but what I would suggest is that--

Unidentified Justice: What I am suggesting is, if you should lose this case in this Court on the federal theory, they could still, as you say as a matter of California policy this is the result they want, they could easily--

Mr. Schwartzberg: --No question, Your Honor.

I hope my client--

Unidentified Justice: --You have your own Fifth Amendment.

Mr. Schwartzberg: --Well, we do, but I think that our courts are going to be less inclined to utilize it in the near future.

Unidentified Justice: You can't apply it differently?

Mr. Schwartzberg: No, I don't think that.

I think that there is a movement of the court to utilize independent test grounds in a far more judicious manner than have been used in the past.

Unidentified Justice: Mr. Schwartzberg, what about this as a way of out of your semantical box.

Anything that you go to jail for is a crime.

In fact, this is what I thought our law reads like.

If it is a proceeding that sends you to jail, it is a criminal proceeding, unless the purpose of sending you to jail is just to force you to do something.

Now, that means forcing you to do something after you are in jail, so that I can send you to jail until you pay up the money that is due or until you perform some act that you are supposed to perform.

That is civil.

Mr. Schwartzberg: And I would suggest that does not happen in this case.

Unidentified Justice: That is right.

Mr. Schwartzberg: Absolutely.

Unidentified Justice: What is here is, you are going to jail for not having paid previously.

Mr. Schwartzberg: Correct.

Unidentified Justice: And that, if you call that coercive, then every criminal penalty is coercive.

That is to say, you are coerced not to kill people by knowing that if you kill somebody you will go to jail.

Mr. Schwartzberg: There is no question.

The only concern--

Unidentified Justice: That couldn't be what we mean by coercive.

Mr. Schwartzberg: --The only concern I have is that I think that petitioner is going to argue to this Court two minutes is that merely facing that jail sentence is going to scare these people into paying their money, and that is what makes it coercive, but the same argument is true that that is supposed to stop crime, because if we know we might go to jail if we are caught, somehow crime won't occur and we know that that is baloney so it is not--

Unidentified Justice: Why don't you make that argument to us?

That is not one that you made.

Mr. Schwartzberg: --Well, I haven't made it because of the difficulty in grappling with how the California courts go back and forth between the definition of what is a civil versus criminal contempt.

It is always criminal.

Unidentified Justice: Do most of these proceedings arise in the fashion that this one is--

Mr. Schwartzberg: Yes.

Unidentified Justice: --that is, the defendant has said you haven't made payments in the past and therefore go to jail?

Or do most of them come up, you know, we are going to send you to jail until you make up past payments?

Mr. Schwartzberg: I would venture to say that most judges attempt the rod before they put them in jail, and the answer is, yes, most defendants are placed on probation just as I would venture to say that most criminal defendants in the traditional criminal sense are placed on probation for first and second, maybe sometimes--

Unidentified Justice: But if a judge says, you haven't paid, therefore you got jail, and he goes to jail, if he then comes up with his past payments, he gets out.

Mr. Schwartzberg: --No, not in California.

That is it.

Unidentified Justice: That is it.

Mr. Schwartzberg: You just do your time.

Unidentified Justice: That's the difference.

Mr. Schwartzberg: You do your time.

And when you get out... now you can always obviously as for a modification, and you can hold up a certified cashier's check in front of the judge and beg that he now comes back and modifies your probation, but it is not a situation where the judge says the Orange County jail is across the street, Mr. Defendant, why don't you go over there, and when you get the money, give me a call?

It doesn't happen that way.

Obviously, I have just a few moments, but I would like to emphasize this.

Everybody is going to concede, just as the argument made by Mr. Capizzi in the beginning, that these are children involved, and obviously we have custodial parents who need the money.

Excuse me.

I ask the Court to affirm the decision below.

Chief Justice William H. Rehnquist: Thank you, Mr. Schwartzberg.

Mr. Capizzi, you have three minutes left.

ORAL ARGUMENT OF MICHAEL R. CAPIZZI, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Capizzi: Mr. Chief Justice, if it may please the Court, if there was such a defendant in jail and he did have the money, we would be so willing and happy to take that money for the children it is undoubtedly--

Unidentified Justice: Yes, but how about the judge?

Mr. Capizzi: --I think the judge would--

Unidentified Justice: If he puts him in jail for not having paid for a term, he may not let him out just because he comes up with the money.

Mr. Capizzi: --Where it is the coercive element that is trying to be utilized, and the entire thrust of these proceedings is to coerce payment, to get the payment for that child, and it is only as a last resort that the jail--

Unidentified Justice: Well, Mr. Capizzi, is it true as your opponent says, that in California the jail is imposed only as punishment, not as future coercion?

Mr. Capizzi: --No, that is absolutely incorrect, and--

Unidentified Justice: So he is wrong as a matter of California law?

Mr. Capizzi: --He is wrong, and I think the judgment of the Court in this case indicated that he is wrong.

The jail sentence was suspended on condition that he make the payments and it is only if he failed to make the payments that the coercive element would then come into play.

Unidentified Justice: The sentence itself, before its suspension, which is what we are arguing about, the sentence itself was a sentence or having failed to make past payments.

Now, that is coercive, to be sure, just as much as life imprisonment for murder is coercive.

It induces you not to commit a murder, and this would induce him to make the payments.

It is coercive in that sense, but that is not what we mean by coercive.

We mean you have the key to the jail in your pocket, and that wasn't the case here, was it?

Mr. Capizzi: Absolutely.

It was suspended on the condition that he make the--

Unidentified Justice: I am talking about the original sentence.

It is the sentence that we are concerned about, not the suspension of the sentence.

Mr. Capizzi: --But the sentence was suspended because Mr. Feiock didn't have the wherewithal to pay the $1,650 at the time he was given a payment schedule and told to reduce the arrearage at the rate of $50 per month.

And so it was necessary to continue the course of nature of that 25-day jail sentence.

If he pays, he will never do the time.

And there is certainly a preference that he pay rather than that he do the time.

Counsel is also incorrect in categorizing this as criminal.

City of Culver City versus Superior Court, a California Supreme Court case, at Page 549, says,

"But in California the proceedings leading to punishment for failure to obey a decree, criminal contempt, and to imprisonment until the omitted act is performed, civil contempt, are exactly the same. "

Although the sections which provide the procedure for both kinds of contempt are provided for in 1209 of the Code of Civil Procedure, contempt proceedings are said to be criminal in nature, and those procedural right and safeguards which are appropriate to criminal contempt proceedings are also afforded in California in civil contempt proceedings.

So we continue to draw a distinction based upon the substantive aspect, but we extend the procedural safeguards the same to both.

And as a result, both civil contempt and criminal contempt are deemed to be criminal in nature.

And the Court below did not categorize this as criminal--

Chief Justice William H. Rehnquist: Your time has expired, Mr. Capizzi.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Young v. U.S. Ex Rel. Vuitton Et Fils S. A. - Oral Argument

Fri, 09 Jan 2009 14:48:31 +0000

Case:

Young v. U.S. Ex Rel. Vuitton Et Fils S. A.

Media File:

85-1329_19870113-argument.mp3

Related Transcript:

1986_85_1329_argument.xml

Transcript:

Argument of James A. Cohen

Chief Justice Rehnquist: We will hear argument now in No. 85-1329, Young versus United States, consolidated with 85-6207, Klayminc against the United States, et cetera.

Mr. Cohen, you may proceed whenever you're ready.

Mr. Cohen: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether a person charged with a serious criminal contempt has a right to be investigated and prosecuted by a disinterested prosecutor; more specifically, a prosecutor who is not concurrently representing the interests of the United States and the interests of a private party.

In 1978 Vuitton sued the claimants, who are among the petitioners here, for trademark infringement.

In July of 1970... excuse me, in July of 1982, that matter was settled with a promise on the part of the defendants in the action to pay $100,000, and the issuance of an injunction which was designed to protect Vuitton's trademark rights.

That injunction prohibited, among other things, the manufacture or sale, offering to sell, and aiding and abetting such an offer.

The issue... the injunction was issued in July of 1982.

And in December of 1982, Sol Klayminc sued Mr. Bainton, Joseph Bainton, who was the lawyer for Vuitton in the underlying trademark infringement injunction, for defamation.

The source of the alleged defamation was an article which was published in the Wall Street Journal in December of 1982, and at the same time that the suit began, or approximately the same time, payment on the $100,000 settlement was stopped.

Unknown Speaker: 0 xxx.

Mr. Cohen: The defamation action was discontinued subsequent to the convictions in this case.

In February of 1983, the sting in this matter began.

The sting covered a wide number of topics, and by the end of March, Mr. Bainton felt, apparently, that he had sufficient information to apply to the court to be appointed as special prosecutor pursuant to Rule 42(b), as well as applied to the court for some extraordinary authority to conduct the sting.

Unknown Speaker: Now, he could have done that whether or not he was later appointed by the court, right?

I mean--

Mr. Cohen: Well, I think the answer--

Unknown Speaker: --You can have a freelance private stinger if he wants to go out and set it up.

Mr. Cohen: --Well, except that it was apparently Mr. Bainton's intention to supervise that.

And ethical prohibitions would prohibit him from taping meetings without the consent of all the parties.

Unknown Speaker: All right, except for the... well, but all of this was done before any appointment by the court; is that right?

Mr. Cohen: All of which was done?

Unknown Speaker: What you've just referred to, the beginning of the sting operation.

Mr. Cohen: Yes, the sting had begun, and there was no taping prior to the application--

Unknown Speaker: That's right.

Mr. Cohen: --to be appointed as special prosecutor.

Unknown Speaker: So all of that could have been done whether... whether or not he was later appointed by the court, right?

Mr. Cohen: Without taping, yes.

Unknown Speaker: Okay.

And he could have taken all that information and brought it to the court--

Mr. Cohen: Yes.

Unknown Speaker: --or brought it to the U.S. Attorney?

Mr. Cohen: That's correct, he could have.

Absolutely.

However, no effort was made to take this matter to the United States Attorney when the information first came into the special prosecutor's, or Bainton's... Mr. Bainton's possession at that time.

The only time that any contact was--

Unknown Speaker: Mr. Cohen, help me out on one other... Mr. Cohen, the thing on the sting.

There was taping with a videotape, is that what it was?

Mr. Cohen: --There were videotapes and audio tapes.

None... as far as we know, I have no reason to believe that any taping occurred prior to the time that Mr. Bainton was appointed.

Unknown Speaker: Right.

But could those tapes... forget for a moment ethical obligation... did that taping violate any State law or Federal law?

Mr. Cohen: Not in New York, where most of them took place.

They would have violated California law.

And the only way that it was permitted in California was by virtue of Mr. Bainton's status as a special prosecutor.

Indeed, he contacted a member of the Los Angeles County District Attorney's Office in effect to notify them and to receive, I suppose, advance... advance approval.

Unknown Speaker: Why does his status as a special prosecutor exempt him from California State law?

Mr. Cohen: Because... I don't... I don't know that it... I think that the answer is that the California authorities treated Mr. Bainton as an Assistant United States Attorney.

The State law of California prohibiting taping things would not apply to a Federal prosecutor.

Unknown Speaker: I see.

Regardless of whether he had the court approval?

Just flatly--

Mr. Cohen: I think that's correct, yes.

Unknown Speaker: --I see.

Mr. Cohen: United States Attorneys in California are permitted to do--

Unknown Speaker: But apart from the California incident, you don't claim there's any violation of law?

Just a violation of ethical responsibilities for a lawyer to supervise this kind of an operation?

Mr. Cohen: --That's correct.

Unknown Speaker: This isn't wire-tapping you're talking about?

Just taping?

Mr. Cohen: No, it's surveillance-type taping.

In a hotel room, they were done.

And audio taping on telephones.

Unknown Speaker: And the ethical concern is that lawyers aren't supposed to lie; is that it?

Mr. Cohen: That's among the ethical concerns, yes.

Unknown Speaker: What other... because they often, I know in these trademark infringement situations, they often employ private investigators who take on a role of someone whom they really aren't, and tell a lot of falsehoods.

Mr. Cohen: Well, that happened in this case too.

Unknown Speaker: And is that... you think all of those activities are ethically improper for a lawyer to permit people working on his side of the case to engage in?

Mr. Cohen: For a lawyer who's representing the two clients, yes.

For a lawyer who simultaneously represents, or purports to represent the... represent the interests of the United States and at the same time represents a private party; I think that's improper.

Unknown Speaker: Oh, that... I understand your conflict of interest argument.

But apart from that, you think that it's wrong for a lawyer in a trademark infringement, or one of these cases, to employ private investigators who use a cover story and a lot of falsehoods?

Mr. Cohen: No, I don't have a serious problem with that if--

Unknown Speaker: I see.

Mr. Cohen: --if it's done under proper circumstances.

We discuss stings--

Unknown Speaker: Right.

Really, my bottom line is, I'm just not quite clear on why the sting has much to do with your basic argument?

Mr. Cohen: --Well, I think that it has to do this with it.

In a sting, the government, in effect, participates in the crime itself.

And it's been--

Unknown Speaker: But it isn't a crime.

Mr. Cohen: --Pardon me?

Unknown Speaker: My point is, it isn't even a crime.

0 xxx.

Mr. Cohen: No, I understand that, Justice Rehnquist.

And I'm not suggesting that this Court should... should in anyway eliminate it from the repertoire of tools that law enforcement personnel use.

It is a much different thing, though, when it's used by a private attorney who's simply been given a label, who has no training and no accountability to anyone.

So I think that's the difference.

And I think that there are also intrinsic problems within it.

Unknown Speaker: I can see that's a factual difference.

Why does it make any legal difference?

Mr. Cohen: Why does the fact that a private attorney did it--

Unknown Speaker: Yes.

Mr. Cohen: --who had the conflicting obligations?

Because you can't tell how those conflicting interests influence the investigation and prosecution.

There's no way that we can sort through this record and say, well, at this point in time, Mr. Bainton was acting properly in the interests of the United States.

And at this point in time, it seemed that he was really acting for Vuitton.

Unknown Speaker: But it doesn't matter, as far as the sting is concerned.

You've acknowledge he could have done it privately and then handed over the results of it to the prosecutor.

Mr. Cohen: Well, the difference--

Unknown Speaker: It doesn't matter during the sting stage whether he's acting in his own interest or in the government's interest or in his client's interest.

It doesn't matter, does it?

Mr. Cohen: --Well, it does matter if you're permitting this person to do things that he wouldn't otherwise be able to do.

And that's exactly what happened here.

Unknown Speaker: But the point is, he would otherwise be able to do it, as a purely private lawyer.

Mr. Cohen: He wouldn't have been able to tape, for example.

Unknown Speaker: He could hire a detective firm... why couldn't he?

Mr. Cohen: Because of the ethical prohibitions which exist in our profession.

Unknown Speaker: I think you just... well, I don't.

I thought you just said to me it was common in enforcement of this kind of--

Mr. Cohen: I'm sorry, Justice Stevens.

I thought you were positing an example where someone goes out and pretends to be someone else.

That's not the taping.

There are ethical prohibitions against misrepresentation and deceit.

That would arguably cover that kind of conduct.

But commonly, these things are done not by the lawyers but by the investigative agencies.

Unknown Speaker: --Sure, but under the supervision of a lawyer.

And that's what you've got here.

Mr. Cohen: Well, you have a little more than that here, Your Honor.

You have Mr. Bainton and his associate, Mr. Devlin, playing a very active role at every point in the proceedings here.

This isn't simply, give us a monthly report and a monthly bill.

This is an active role in every single step of these proceedings.

Unknown Speaker: Is there some reason why misrepresentation and deceit by a lawyer is okay so long as he's a United States Attorney?

How does that--

Mr. Cohen: Well, yes, there is, I think.

The answer to that question is that when it's... I'm sorry?

Unknown Speaker: --Is that in the canons of ethics?

I mean, is there a distinction in the canons on that?

I mean--

Mr. Cohen: Well, there's not a distinction in the canons.

But when it's done by the government, we believe, at least, that the government is doing it for one reason and one reason only, in the interest of the public to ferret out crime.

When it's done by someone who has two interests, we can't be sure why it's being done.

We can't be sure, in effect, how it's being done.

The decisions of this Court and other courts which permit stings and other investigative techniques, which have at times been said to create problems or concerns about defendants' rights, and the integrity of the system, have all been involved with a public prosecutor, who was trained, who was accountable, to higher ups in the U.S. Attorney's Office and in the Justice Department.

Unknown Speaker: --I think, as a matter of original inquiry, that perhaps the standards would be higher for a public prosecutor than for a private attorney?

Mr. Cohen: Well, you might.

Except that we are not concerned, I think, rightfully, that as a general matter public prosecutors will misuse their office in defense of some other client; because there is no other client.

In this case, when you have the attorney purporting to represent the interests of the United States, and at the same time, representing that second client who has a very serious interest in the United States' case, we just can't tell.

We can't be confident.

Unknown Speaker: xxx had only one client during the sting here.

He wasn't representing the United States yet.

Mr. Cohen: No, that's not true, Your Honor.

He was appointed as a special prosecutor on March 31st of 1983.

At that point in time, the formal investigation began.

Prior to that--

Unknown Speaker: Prior to that--

Mr. Cohen: --there had just been conversations--

Unknown Speaker: --he had just one client?

You say the sting began before he became a special prosecutor?

Mr. Cohen: --Yes, the sting did begin.

The evidence that was introduced at trial, though, didn't... was created under the special prosecutor's mandate.

And that all... and that was at a point in time when he was representing the United States and representing Vuitton.

Unknown Speaker: But when it gets here, it's the United States as the respondent.

Mr. Cohen: Well, that's caused some confusion, Your Honor, because--

Unknown Speaker: Some confusion?

[Laughter]

Mr. Cohen: --That has caused some confusion, Your Honor.

As you obviously know, the government has submitted amicus briefs supporting the notion that the prosecutor should be disinterested.

I don't think that the mere labelling someone as a special prosecutor, as a United States Attorney, ought to dispose of this case.

It's just... and this case really illustrates, I think, why not.

Unknown Speaker: 0 xxx.

Mr. Cohen: I understand that, Your Honor.

Unknown Speaker: Well, I have problems with that.

Mr. Cohen: Well, I meant that I understand that's a fact.

I have some problems with it as well.

Speaking of the U.S. Attorney, Judge Brieant, who I think was initially sensitive to the possibility that some problems would exist, and also to the alleged magnitude of the case, as it was explained to him, directed Mr. Brieant... Mr. Brieant; Mr. Bainton, on April 6th to... which is about five days into the... into the taped portion of the sting, and about five days after he was appointed special prosecutor... to, quote, fully debrief the United States Attorney.

Well, he... he... I think, Your Honor, and I have to go back to the transcript to be sure, he directed Mr. Bainton to fully debrief the U.S. Attorney, and said that he wasn't requiring the United States Attorney to come in; that it was simply a suggestion.

In any event, I don't think it's important to quarrel over whether he was directed or whether it was suggested.

The full debriefing never occurred.

Mr. Bainton sent a short, two paragraph letter, which is in the appendix, to Mr. Pedowitz, who was at that point, was chief of the criminal division.

And apparently never receiving a reply, contacted him sometime later, and the reply was apparently "good luck".

The U.S. Attorney was never fully offered this case.

The matter was never referred to the United States Attorney by the District Court.

In short, the procedure suggested by the government, that is, the Solicitor General's Office, in their brief, were never complied with in this case.

The tapes and the conversations that occurred during the investigation covered a wide variety of topics.

They first discussed the defamation action.

And there was an apparent attempt on the tapes by Mr. Weinberg to elicit an admission from Sol Klayminc that in fact the defamation action was frivolous.

There was an attempt to discover the financial assets of Sol Klayminc.

It also discussed, in fact... discussed mostly plans to manufacture counterfeit bags in Haiti.

Also discussed in the tapes, or stated on the tapes, were suggestions by Weinberg in response to inquiries from one or more of the defendants in this case that in fact the proposed plan to manufacture bags in Haiti and distribute them elsewhere was not illegal.

And I just would wish to emphasize that those kinds of lulling statements occur, not in the context of a heroin conspiracy or a cocaine conspiracy, something that it is beyond any doubt at all is wrong, and you don't need to be told that it is not, this occurs in the context of an injunction which had very specific, proper business purposes, to protect Vuitton's trademark rights.

In that context, suggesting to someone, as Weinberg did time and time again, that the plan that they were discussing, and the scheme, if you will, that was afoot, would not violate the injunction is particularly offensive.

The interests that the special prosecutor labored under here were not only the duty to Vuitton.

In fact, there was another client, Fendi, who was also apparently a very expensive trademark, because Mr.... Mr. Bainton also represented Fendi.

And in fact, in discharging Mr. Rochman, who was originally a defendant in this case, from his civil obligations for Vuitton as attorney for Fendi, Mr. Bainton discharged Mr. Rochman as well.

And that's contained in a letter that is also in the appendix.

There's the $100,000 judgment against Sol Klayminc and the family companies, including Barry Klayminc.

That was... as I say, payment was stopped on that with about $81,000 left to pay.

There's a $750,000 judgment against petitioner Young.

Petitioner Young was involved in a case in California in 1981, in which he agreed to an injunction prohibiting him from manufacturing, selling, offering to sell, counterfeit Louis Vuitton bags.

As a part of that agreement, there was a liquidated damages provision of $750,000 that would only become due and owing if Young violated that injunction.

In addition to that, there's a personal interest the special prosecutor had, because he was a defendant in a defamation action which was begun before the sting.

Unknown Speaker: Mr. Cohen, let me read you, if I may, a sentence from the Second Circuit opinion, and ask you if that describes... Judge Lombard's opinion says: The fact that Sol Klayminc had brought suit against Bainton and the New York Courts alleging harassment and other acts is entitled to no weight as the suit was clearly frivolous.

It was never pressed, and was finally dismissed by consent.

Is that the suit you're referring to?

Mr. Cohen: That is the suit, Your Honor.

And the fact that it was frivolous... and I'm not qualified to say whether it was frivolous, and with all due respect to Judge Lombard, I don't think that he is either... there is... there is nothing... there is nothing that prevents or has been explored, Mr. Bainton from being concerned about that.

The suit was for two a quarter million dollars.

Somebody hired a lawyer to represent him.

The matter was discontinued after a claim of prosecutorial immunity.

Now, whether or not it was frivolous is really not the point.

What we're really talking about here is an appearance of a conflict of interest.

And I think it clearly existed when the prosecutor is a defendant in a suit such as that brought before any prosecution.

His law firm was also defendant in that action.

Unknown Speaker: So your major... you rely chiefly on the conflict on the prosecutor having another client?

Mr. Cohen: Yes, Your Honor, that's correct.

Unknown Speaker: But you do... do you argue in brief that a private attorney should never be appointed, no matter who he is?

Mr. Cohen: Well, we've taken a couple of different positions in the brief.

Unknown Speaker: Well, how about the answer to my question, yes or no.

Mr. Cohen: The answer is that except in a serious contempt, the answer is yes.

Unknown Speaker: Yes.

Well, do you abandon that?

Mr. Cohen: No.

For a serious criminal contempt, the private attorney for an underlying party should never be appointed.

Unknown Speaker: Well, no, but how about any private attorney?

Mr. Cohen: Oh, no, no, no.

We don't... Your Honor, I'm sorry, I misunderstood your question.

We do agree with the Solicitor General's position that it would be permissible under Rule 42(b) to appoint a private, disinterested attorney.

Unknown Speaker: Whether he's ever had... been in a criminal court in his whole life?

Mr. Cohen: Well, on the contrary, Your Honor, there's lot of former prosecutors out--

Unknown Speaker: Well, I know, I know.

But so your answer is that the court may appoint a private attorney.

Mr. Cohen: --A private, disinterested attorney, yes.

Unknown Speaker: And need not refer it to the U.S. Attorney at all?

Mr. Cohen: No, we happen to agree that the proper procedure of considering separation of powers concept should be to at least refer it to the executive branch.

Unknown Speaker: Well, if you appoint a private attorney who's not representing one of the plaintiffs, how does the attorney get paid?

Mr. Cohen: Well, Your Honor, the administrative office of the United States court has a fund which has been used to pay disinterested private attorneys before on a few occasions.

Unknown Speaker: As a matter of course?

Mr. Cohen: Apparently, yes, Your Honor.

There's the lodging that Mr. Bainton put in, a letter that he sent to the administrative office of the courts; and there are conversations that the Solicitor General office... Solicitor General's office has had with the general counsel of that unit.

And apparently, there is a fund from which to pay.

Now, the fund is not overwhelming in amount.

And it hasn't been tapped that frequently.

But it has been tapped in at least three occasions that we know of.

Unknown Speaker: And it's not sure to be there next year.

Mr. Cohen: No, but nor are lots of other funds, Justice Scalia.

Unknown Speaker: But to the extent that the court has to rely on that fund to any attorney that it appoints, the court's in not much better shape than it is in having to rely on the United States Attorney?

Mr. Cohen: Well--

Unknown Speaker: It's at the mercy of another branch, right?

Mr. Cohen: --I think that's true, Justice Scalia.

But to the extent that the courts will always have to depend on another branch's muscle, if you will, they're always at that mercy.

The U.S. Attorney's manual, for example, and the Justice Department, by their very presence here, I think, demonstrates the proper respect due to courts.

And I think that those kinds of concerns, whereas I don't say that they're completely frivolous, I just think they're not very real.

The interesting part of this case is that if Mr. Bainton had been a real Assistant United States Attorney he would be subject to prosecution under 18 U.S.C. 208(a), which is the conflict of interest statute that Congress has passed in order to prevent just this sort of thing.

If I may, I'd like to reserve the rest of my time for rebuttal.

Argument of William C. Bryson

Chief Justice Rehnquist: Thank you, Mr. Cohen.

We'll hear now from you, Mr. Bryson.

Mr. Bryson: Mr. Chief Justice, and may it please the Court:

I am representing one of the two parties which is calling itself the government in this case.

For clarification, of course, Mr. Bainton is the special prosecutor.

I'll refer to him as the special prosecutor, and I'll refer to the positions that the Department of Justice is arguing before the Court as the government's position.

Now, the government's position in this case is a little different from the position taken by either of the other two parties.

Basically, it can be summarized in four propositions.

First, that ordinarily it is the United States Attorney who should prosecute serious contempts.

Second, that in some special cases... and we think that for practical reasons, this is going to be a very limited class... but in some special cases, it is appropriate for the court to appoint a private attorney to prosecute a criminal contempt.

Third, that that should be done, if at all, only after the United States Attorney has been given the case for consideration and has declined the prosecution.

And fourth... excuse me... that the attorney for the opposing party in a civil case should never be the party who is appointed to prosecute a criminal... a serious criminal contempt.

Unknown Speaker: Mr. Bryson, could I ask about number two?

Where does the court get authority to appoint a special prosecutor?

Mr. Bryson: Well, I think there are two answers to that, Your Honor.

First, Rule 42(b) does contain a reference... it's a very cryptic reference, to be sure.

But it is a reference to the notion that either the U.S. Attorney or an attorney appointed by the court can handle criminal contempts.

It does not specify what that attorney is to do, other than to take part in the notice-taking process.

Unknown Speaker: Well, let's--

Mr. Bryson: But in any event, contemplates the participation of a private attorney in some respect.

Unknown Speaker: --But doesn't that--

Mr. Bryson: Our second answer... I'm sorry.

Unknown Speaker: --Go ahead.

Doesn't that contravene the Constitution, which requires that--

Mr. Bryson: Well, I don't think so, because my second answer is that I think criminal contempt is a different animal in some important respects from the typical criminal offense.

And we believe that it is inherent, even if there were no Rule 42(b), it is inherent in the power of the courts to enforce their judgments that they are not wholly dependent on the executive branch to enforce those judgments.

They have--

Unknown Speaker: --Isn't this person an officer?

An officer?

Mr. Bryson: --We don't believe he is an officer.

We believe he would fall in the Buckley v. Valeo sense, more in the category of an employee.

But even... excuse me... if he were--

Unknown Speaker: Is a regular prosecutor not an officer?

Mr. Bryson: --Well, we believe he is not an officer but an employee.

That is to say, his task, his responsibilities here, are not so broad.

Unknown Speaker: A United States Attorney is--

Mr. Bryson: I'm sorry.

And United States Attorney, yes.

Unknown Speaker: --He is an officer?

Mr. Bryson: That's right.

Unknown Speaker: But this individual who does the same thing is not?

Mr. Bryson: Well, he does, Your Honor, I think do the same thing, because he is limited in several very important respects.

First of all, he doesn't have the breadth of responsibility for deciding who is to be prosecuted.

He has been given an assignment to pursue a particular case.

In this sense, he's more like an Assistant United States Attorney.

And second, he is only given one case.

He is not given the task of deciding throughout the world of potential criminal offenses, which ones to pursue.

Unknown Speaker: Well, I'm glad you haven't made the argument that your brief made.

I have real troubles if he is an officer, because you handled that... the government handled that quite readily in the brief by simply saying that the Constitution authorizes the appointment of officers by the courts.

Mr. Bryson: Well, that, I think, Your Honor, would only be so if we accept that Rule 42(b) is a legislative delegation to the courts of the authority to--

Unknown Speaker: Well, Rule 43(b) I don't think helps you, because Rules 43(b) was never passed by the Congress.

Mr. Bryson: --Well, that's right.

And that's one of the--

Unknown Speaker: The Constitution requires that the Congress may by law vest appointment in the court.

Mr. Bryson: --That's correct, and that's one of the problems.

Unknown Speaker: And Rules 43(b) has never been enacted by the Congress.

Mr. Bryson: That's correct.

Unknown Speaker: So that argument's wrong?

Mr. Bryson: Pardon?

Unknown Speaker: So that argument's wrong?

Mr. Bryson: Well, I think, Your Honor, the... there is some force to the argument.

And I think... I recognize your point.

I think there is some force to the argument that the appointments clause does not get in the way of... show a constitutional disposition against... this kind of appointment.

Because if Congress had, for example, more specifically designated the special prosecutor as being someone who could be appointed, then we would be beyond appointments clause problem.

So... excuse me... it's not a constitutional problem.

At most, it's a question of the degree of the specificity of the authorizing statute.

But beyond that, I think it's important to point out some of the practical problems that this kind of conflict of interest creates.

We point out in the brief that the statutes and regulations which Congress has imposed on regular Department of Justice employees establish a Federal policy against just this kind of conflict of interest.

We think it's a general policy.

We think it's a policy that this Court ought to apply to this kind of conflicting representation where the United States and a private party are both being represented by the same attorney.

Section 208(a) was pointed out.

Section 528 of Title XXVIII states that conflicts of interest will not be permitted in cases in which the United States... an Assistant United States Attorney is carrying forward a prosecution.

And that statute directs the government to pass particular regulations dealing with conflicts of interest.

And among those regulations is one that would apply directly in this case, Section 735-4, stating that if an organization has a substantial interest in the outcome of a case, and that organization is one with which the attorney is allied in the personal... in some personal sense, that the attorney is disqualified from proceeding with the prosecution or investigation.

Now, the practical problems here are very real.

Unknown Speaker: xxx addressed to this situation, Mr. Bryson?

Mr. Bryson: Well, I think it would be addressed, Your Honor, to a situation where, for example--

Unknown Speaker: He's in the ABA, or the ABA has an interest in the outcome; that's what that sounds like.

Mr. Bryson: --Well, I think it would clearly apply, Your Honor, to a case where, for example, if I continued to represent a private party, and that private party had an interest in the outcome of a lawsuit in which I was the prosecutor, that would clearly be covered.

Now, there might be closer questions dealing with organizations such as the ABA, but clearly, in a case like this, that regulation would cover a prosecutor, and the prosecutor would be disqualified from proceeding with the investigation or prosecution.

Now, as a practical matter, there are special problems in this kind of case, one of which is, for example, mention was made of Mr. Young.

Mr. Young is one of the defendants who apparently had some assets, and he had a $750,000 judgment which was subject to execution if he were convicted.

Well, that is an enormous incentive to choose Mr. Young as one of the defendants to prosecute, as opposed to, for example, using Mr. Young as a witness against some of the other defendants.

Similarly, in current times, when there is a specific Federal statute prohibiting trademark infringement, the Section 402 of the contempt statutes comes into play, and that statute provides that a fine can either go to the... the victim or to the United States.

Obviously, the attorney for the victim is going to have an interest to see to it, to urge the court, to have the fine paid to the victim as opposed to the United States.

Unknown Speaker: Well, Mr. Bryson, what you say I don't doubt makes a good deal of sense in the abstract.

But if we adopt your position that people with a conflict of interest can't be appointed special prosecutors, that it first have to go to the United States Attorney, the court is left without any realistic way of enforcing an injunction or prosecuting a contemner, unless the U.S. Attorney approves.

Mr. Bryson: Well, Your Honor, I have a couple of answers.

First of all, I think almost invariably the United States Attorney will prosecute such cases.

That's the policy of the Justice Department as set out in the section of the U.S. Attorney's manual that we have... we have quoted in the brief.

Second, there is a fallback in the availability of administrative office funds.

And third... and I think this is not an insignificant factor... there are law firms that are willing to offer services on a pro bono basis, which happens on a regular... regular... from time to time, in cases in which, for example, a mandamus action is brought against a judge, and none of the parties is prepared to defend the judge.

The judge can be defended on a pro bono basis by a law firm that the judge selects.

So--

Unknown Speaker: Mr. Bryson, what's the oldest case you have that gives the courts authorities to cite for criminal contempt without a statute and on... with their own appointment of a prosecutor for violation of one of their orders, as opposed to for, you know, contempt that occurs in front of them, an insult to their dignity, an obstruction of their processes, but just disobeying one of their judgments?

What's the oldest case you have that allows the court some inherent power to punish for this?

Mr. Bryson: --Well, the McCann case would fall into that category.

Most of the cases... the problem is, most of these cases have involved very small contempts.

And the degree to which somebody is participating as a special prosecutor is on a very limited basis.

In McCann, it may not have gone much beyond simply the notice stage, which was authorized... was subsequently authorized by Rule 42(b).

But certainly McCann and some of the other cases of about that age that are cited in Mr. Bainton's brief would fall generally into that category.

And that's from the middle thirties.

Thank you.

Argument of J. Joseph Bainton

Chief Justice Rehnquist: Thank you, Mr. Bryson.

Mr. Bainton, we'll hear from you now.

Mr. Bainton: Mr. Chief Justice, and may it please the Court:

The Chief Justice's last question indicates to me that the Court is focussing on the real issue presented by this case, and that is, how are the Federal courts going to enforce their orders?

This Court, in its decision, among others, in Gompers and Debs has long recognized... we agree, petitioners agree, and the Solicitor General agrees... that if the judiciary is to maintain its status as a coequal branch of government, it has to have the ability to enforce its orders.

Unknown Speaker: How does Congress enforce its orders?

Mr. Bainton: Through the executive branch, Your Honor.

But that... Your Honor, that is not... that is not what this Court held in Gompers.

That's not what this Court held in McCann... excuse me, in In re Debs.

I think that if a Federal court is going to be able to maintain its status as an equal branch of government, it simply has to be able to enforce its orders.

This Court has consistently held that, and no one has contended to the contrary.

So I suggest that the real issue is, how do you do that?

And the only... and the historical answer to that question, and the oldest--

Unknown Speaker: How long have we consistently held that?

Mr. Bainton: --1911, Your Honor.

Unknown Speaker: Older than the thirties?

Mr. Bainton: 1911 is the oldest I have, which is Gompers, Your Honor.

The first appointment is In re Debs, which was decided by this Court in 1895.

The Rule 42(b) was enacted in 1946.

Now, in Professor Orfields... who was the reporter to the advisory committee on the Federal Rules treatise... he indicated that the advisory committee and therefore presumptively this Court, in enacting Rule 42(b), meant to codify prior existing practice.

And the prior existing practice was described in the Second Circuit's decision in McCann v. New York Stock Exchange.

In that case, the Second Circuit held that it was not only allowable, but the preferred practice, in cases such as this one, for the Court to specially appoint the attorney for the civil litigant aggrieved by the disobedience of the Federal court order.

Now Rule 57 of the Federal Rules of Criminal Procedure also comes into play to the extent that it says, in substance, any... that... excuse me, as it says in substance that all prior practice is not excluded.

To the extent that the Court does not find adequate authority to do what it did within Rule 42(b), which is what the District Court found in both opinions and the Second Circuit, we suggest that the power question can be resolved ultimately by reference to the All Writs Act.

So I don't think that there is a serious question as to whether the court has the power to do what it did in this and other cases.

Of course, it can't exercise this power in a way that deprives a defendant of his due process rights.

And that is the question that is really presented by this case.

What has... what this Court I think has to do is balance the interests of an independent judiciary against the risk that this process might somehow compromise the rights of a defendant.

In that balancing process, I think the most important factor for the Court to take into account is the very special role that the District Court judge plays in these cases.

As Mr. Bryson pointed out, the decision to prosecute, to continue the prosecution, is not reposed with the District... excuse me, with the civil litigant's lawyer.

The decision in this case, and Musidor and McCann and the others, confers no right on a civil litigant.

As a result of the Second Circuit's opinion, no civil litigant can go to a District Court judge and say, I have a trademark, I have an injunction, and I have what I think is evidence of probable cause of a violation of that injunction.

I want a criminal prosecution.

That decision rests completely within the discretion of the District Court judge.

And that's important.

And I think that answers most, if not all, of the arguments raised both by the petitioners and the Solicitor General.

There exists within our system of justice a series of systemic safeguards that we think adequately protect any possible compromise of the defendant's right to a fair trial; not a perfect trial, a fair trial.

As this Court held in Marshall v. Jerrico, there is not a constitutional right to a completely unbiased prosecutor.

In that case, the Court used the phrase, too remote and insubstantial.

And that's what I most respectfully suggest the complaint's about this practice are, too remote and insubstantial.

There has been no claim that anything that occurred in this case, or any other case to my knowledge, was improper, was different than the U.S. Attorney under different circumstances might have done.

Unknown Speaker: Mr. Bainton--

Mr. Bainton: Yes, sir.

Unknown Speaker: --let's take a very important and massive court decree, like the old AT&T decree, which was essentially the structure for our telecommunications industry for decades.

Do you think the Court could have just been, in effect, legislature, judge and jury by enforcing that decree through appointing its own prosecutors to investigate whether AT&T was abiding by all the constraints?

Doesn't that trouble you as far as separation of powers is concerned?

Mr. Bainton: Your Honor, if I'm not mistaken, I believe that case was brought by the Justice Department, wasn't it?

Unknown Speaker: Well, that's right.

Mr. Bainton: What you're saying is, by analogy, if a private party had sought the same sort of relief, and obtained it?

Unknown Speaker: That's right, that's right.

It could have been brought by a private party, and you could have had a massive decree like that.

Isn't there some problem about... I mean, it's fine to have judicial independence.

But I thought that there were checks and balances, and that all of the branches sort of depend on one another to a degree.

Mr. Bainton: Your Honor, I don't know that--

Unknown Speaker: You're saying that we have the right to make the judgment and to enforce it.

Mr. Bainton: --That's correct, Your Honor.

It is your job to decide what your judgment means.

And if you... and having done that, you have to enforce that.

Let me give you an example, if I may, going to the old law school example of Blackacre.

The Federal District Court Judge says, Mr. Bainton, you can have possession of Blackacre.

I go to Blackacre, and the person there is standing there with a shotgun and says, if you step across that border, I'm going to blow your brains out.

I go back to the District Court judge.

He sends me to the U.S. Attorney.

The U.S. Attorney says, you know, that's terrible.

The judge said you're entitled to have possession of Blackacre.

But I'm very busy.

We have a big cocaine trial in this district.

I don't have anybody to help you.

I go back to the District Court Judge and say, judge, I haven't got possession of Blackacre.

What are you going to do about it?

The judge says, well, can't help you.

The U.S. Attorney can't... the U.S. Attorney has to act as a check and balance.

And although my order is plain and clear and in no way ambiguous, it won't be enforced.

Your Honor, I think that the courts have to enforce their orders.

They have to have the ability to enforce their orders.

Unknown Speaker: Mr. Bainton, with your very good example of Blackacre, wasn't the remedy one of ejectment, which was enforceable by an executive officer?

He didn't have to go back to court to enforce an ejectment order.

Mr. Bainton: Your Honor... Your Honor, when... when the executive branch declines to enforce a court order, rightfully or wrongfully, a court must be able to see that that order is given force and effect.

What happens when... I'll give you another example... what happens when someone subpoenas some tapes from the White House, and the subpoena is not complied with.

And the... and the Attorney General says, we're not going to seek to enforce that order.

Unknown Speaker: Mr. Bainton--

Mr. Bainton: Surely the District Court must be able to compel the production of those tapes under those circumstances.

Unknown Speaker: --Suppose either you or the judge asked the prosecutor to appoint somebody here.

Could he have appointed you?

Could the prosecutor have appointed you in this case?

Mr. Bainton: The Attorney General could have, Your Honor, yes.

Not the U.S. Attorney.

The Attorney General.

Unknown Speaker: What are you... what is he going to do with that conflict of interest statute?

Mr. Bainton: Oh, I'm sorry, I see your question.

Unknown Speaker: Yes.

He couldn't have appointed you?

Mr. Bainton: I don't think, Your Honor--

Unknown Speaker: He couldn't have.

Do you agree?

Mr. Bainton: --No, I don't agree, Your Honor.

Unknown Speaker: Well, how could he, and... and just... violate the statute?

Mr. Bainton: Your Honor... Your Honor, I don't think that the... that there is a conflict of interest.

The interests of the civil litigant in this case were coterminous, no more and no less, than that of the District Court; and that is, that the court's order be enforced.

Unknown Speaker: xxx against the court, not the individual.

Mr. Bainton: I'm sorry, I didn't hear you.

Unknown Speaker: Contempt is against the court.

Mr. Bainton: Yes, but the--

Unknown Speaker: Not the individual.

Mr. Bainton: --we're talking about interests, though, Justice Marshall.

And the interests--

Unknown Speaker: And you only had one interest?

Mr. Bainton: --I had one interest, and that is that the court order be obeyed.

Unknown Speaker: Your client.

Mr. Bainton: Pardon me, sir?

Unknown Speaker: Your client.

Mr. Bainton: No, that is not correct, sir.

That is not correct.

My client... the court's interests, and my interests, are simply that court orders be obeyed.

Unknown Speaker: You still had the same client.

Mr. Bainton: That's correct, sir.

Unknown Speaker: But you're arguing for the client now or the court?

Mr. Bainton: No, Your Honor, I--

Unknown Speaker: Well, I just want to know which hat you have on.

Mr. Bainton: --Your Honor, there is no question--

Unknown Speaker: You're wearing two hats.

Mr. Bainton: --as to which hat I'm wearing.

And the record in this case is pristine in the sense that I have, rightly or wrongly, represented the United States of America from the time of my appointment.

The--

Unknown Speaker: xxx pristine.

Mr. Bainton: --Your Honor, as to who I appeared for, I'm sorry, I respectfully disagree; that is the word I chose to use.

There has been no question at any stage in this proceeding that it was other than a criminal proceeding.

Which is required, at least under the Second Circuit's decision in McCann.

Unknown Speaker: Mr. Bainton, would the case be different if your client had both a claim for damages, because of a lot of trademark infringement and the like, which would be enforceable by a civil contempt, as well as the criminal proceeding?

Would then there be a conflict?

Mr. Bainton: No, sir.

That's true in every case, and there's no practical conflict.

And let me explain why if I may.

The burden of proof in any criminal case is obviously proof beyond a reasonable doubt.

In a civil case, it's--

Unknown Speaker: No, but in that case, if you represented both the court's interest in enforcement and your client's interest in obtaining money, would it be proper for you to agree to dismiss the criminal charges if there were full payment of all damage claims?

Mr. Bainton: --Your Honor, I couldn't agree to do that.

That is not within the special prosecutor's power.

And that's the point I made earlier.

Unknown Speaker: Well, agreed, maybe... enter into an agreement by which you, in exchange for the payment of whatever the amount the damages were or alleged to be, you agreed to recommend to the court that they would be... the criminal charges would be dismissed.

Mr. Bainton: You're saying, would that create... potentially create a conflict of interest?

Unknown Speaker: Yes.

Mr. Bainton: Yes.

It would potentially create a conflict of interest.

I suppose.

I think I can't say that it doesn't.

But I think that what you've got to do in deciding this case is, again, to determine whether there is a risk that the entitlement to the defendant of a fair trial will be compromised.

And whether or not this case is going to be... whether my recommendation would be accepted or rejected by the District Court rests in its discretion.

And I think it's fair to say that in these cases the District Courts generally look at recommendations of special prosecutors with respect to the disposition of a criminal matter, including its commencement.

Some look differently--

Unknown Speaker: Well, let me change the example a little bit.

Supposing the settlement was, in addition to not recommending, you also agree that you will not offer in evidence the results of the sting operation.

You just wouldn't call that to the court's attention.

Mr. Bainton: --I couldn't do that.

Unknown Speaker: That would be a conflict of interest.

Mr. Bainton: That would be unethical.

When--

Unknown Speaker: You think you have an obligation to the judge to disclose all evidence that you have in your possession?

Mr. Bainton: --I think I have an... had and continue to have an unqualified obligation to the United States of America to give it the best representation of which I am capable.

Unknown Speaker: What if your client said, I really think you're being too hard on this particular adversary.

I really don't think it's in our best business interest in the long run to go forward with these kinds of contempts because of customer relations, one thing or another.

What would you do then?

Mr. Bainton: Well, then, I'd have to make a decision.

I'd have to ask whether or not to be relieved from the prosecution because there was no fund left to pay me.

That's what I'd have to do.

I could not abandon my ethical obligation to my client because I was no longer getting paid.

I could asked to be relieved.

If I was relieved, then I suppose one of these other solutions, if they were possible, would come into play.

But I don't think I could throw the case, if you will.

The... there is an analogy, I think, in civil practice, everyday of the week, because lawyers take oaths to obey the law, they produce documents in civil litigation that are terribly prejudicial to their client.

Unknown Speaker: Let me ask you one other question, if I may.

What would you ethical obligation be if your private client went bankrupt and there just weren't funds to pay your privately?

Then what would you do then?

Mr. Bainton: Your Honor, once accepting the engagement, I think I'm bound to see it through to its conclusion unless excused by the District Court judge.

I don't think there's any question about that.

And that's no different than appearing in any Federal action.

Once you appear on behalf of a party, you're in the lawsuit unless, in the exercise of its discretion, the District Court judge lets you out.

I don't think is any different from any other case in that respect.

Unknown Speaker: What in your view would be the objection to saying, the private attorney should not be appointed, especially for one of the parties, unless the United States Attorney refuses the case?

Mr. Bainton: I have no... utterly no problem with that, sir.

In this case--

Unknown Speaker: That it should first be presented to the United States--

Mr. Bainton: --As a matter of good practice, not necessarily of constitutional law.

I don't think the Constitution requires that.

I think that good practice suggests it.

It occurred in this case, I'd like to point out, not once but twice.

Mr. Cohen, in his remarks, suggested that the debriefing never occurred.

That, the record demonstrates, is utterly untrue.

I produced to the United States Attorney every scintilla of information--

Unknown Speaker: --So you think--

Mr. Bainton: --I had at the time--

Unknown Speaker: --So the United States Attorney, you think, in effect if not expressly, in effect declined prosecution?

Mr. Bainton: --No, sir, I think he expressly declined the prosecution not once but twice.

Judge Brieant, as the record shows, on the eve of trial, again called the United States Attorney's office, and again offered them... not ordered them, but offered them... the opportunity to try the case, and they declined.

So the U.S. Attorney expressly declined to prosecute this case not once but twice.

Now, in--

Unknown Speaker: Prior to your appointment?

Mr. Bainton: --No, sir.

No, sir.

Unknown Speaker: Was it ever offered to him prior to your appointment?

Mr. Bainton: No, sir, it was offered to him on the day of my appointment; literally on the day.

Unknown Speaker: On the day.

By whom?

Mr. Bainton: At Judge Brieant's request, I delivered to the U.S. Attorney the affidavit submitted in support of my... in support of the application for my appointment.

And Your Honor, that affidavit contained every bit of information about this case that I then knew.

And when the U.S. Attorney had that affidavit--

Unknown Speaker: Had you already been appointed?

Mr. Bainton: --Yes, sir, I had.

By... by... for a duration of a number of hours.

And as the... as Mr. Cohen correctly stated--

Unknown Speaker: But you would have no objection if the judge had said, well, I... we should give the U.S. Attorney first crack before you're even appointed?

Mr. Bainton: --Yes, sir.

But contrary to what the Solicitor General said, I know of my own personal knowledge of four cases, three in the Central District of California and one in the Southern District of New York, within the last eight to ten months, when the U.S. Attorney has, on each occasion, been offered this opportunity, and has declined, and I have been appointed.

So the statement by the Solicitor General that this Court can assume that the Justice Department will regularly prosecute this case is at least inconsistent with my personal experience.

Unknown Speaker: Just to keep the record straight, did you give those records to the U.S. Attorney or to his assistant?

Mr. Bainton: I gave them to the head of the criminal division of the U.S. Attorney's office.

Unknown Speaker: That's what I thought.

Mr. Bainton: Which I thought was the appropriate.

Unknown Speaker: Well, you did say you gave them to the U.S. Attorney.

I wanted to get the record straight.

Mr. Bainton: No, that's correct, Justice Marshall.

Unknown Speaker: Not that it matters.

Mr. Bainton: That's correct.

I gave it to the head of the criminal division; not to the U.S. Attorney himself.

You're correct.

I apologize for the misstatement.

Assuming--

Unknown Speaker: Mr. Bainton.

Mr. Bainton: --Yes, sir.

Unknown Speaker: I like the notion that we have the power not just to render judgments but to enforce them as well.

What happens when, after your appointment, you come in try the case, and we say, six years?

All right?

Mr. Bainton: Who's we?

This Court or the District Court?

Unknown Speaker: Judges.

Mr. Bainton: Okay.

Unknown Speaker: A Federal court.

It gives the... on the contempt citation, it gives the defendant six years, or whatever.

And nobody arrests him.

The U.S. Attorney just says, you know, it's too much.

Or I'm too busy.

My people are out doing other things.

Nothing happens.

Now, do we have authority to appoint somebody to arrest and incarcerate him as well?

I mean, wouldn't that follow from your notion that somehow we have to be self-contained; otherwise we're not real judges?

Aren't we ultimately dependent on the executive anyway?

Mr. Bainton: In that example, I think as a practical matter, you're absolutely correct.

But I think there is a qualitative, Justice Scalia, between setting up a court order... an entirely court-maintained prison system and enforcing a court's order.

Federal courts, certainly in the desegregation cases, have run school districts.

Unknown Speaker: I understand that.

Mr. Bainton: So... so, you know, but it's--

Unknown Speaker: But the notion that somehow the effectiveness of the courts, the notion that somehow it's dependent upon the other branches is not inconceivable, is it?

Mr. Bainton: --But your example, sir, I most respectfully suggest, is largely speculative.

The likelihood of the marshall service declining to incarcerate someone, I most respectfully submit, is slim or none.

The likelihood of an already overburdened U.S. Attorney's office to say, I haven't got the personnel to prosecute this case is a real problem.

That is a problem that has prompted this rule of law.

And, while conceptually you're right, Justice Scalia,--

Unknown Speaker: Well, maybe that's because--

Mr. Bainton: --I think the real problem you've got to deal with is the one that was dealt with by the Second Circuit.

And I'd most respectfully suggest, the one you pose is never going to occur.

Unknown Speaker: --Maybe that's because the United States Attorney thinks that of all the violations of law out there, the flouting of this particular court order is not the most serious that should engage the time of either his people or the courts.

Now, why do our matters have to go to the top of the prosecutorial agenda necessarily?

What isn't that violation of law one that ought to be put on the list for the United States Attorney like all the other ones?

It's a violation of law.

Mr. Bainton: Because the interests of the judiciary, and the enforcement of its orders, are different, Justice Scalia, than the legitimate and proper interests of the justice... of the executive branch.

This Court cannot compel the executive branch to prosecute any criminal regardless of how heinous his conduct.

That's implicit in the notion of separation of powers.

But if this is going to be a coequal branch, it has to support its orders.

And to answer the question I posed, why is the agenda different, as the District Court found in this case, orders of this type are routinely ignored.

As a result, the case load of the District Court, which it has to deal with... there is no way that the District Court can prevent trademark owners from filing lawsuits such as the civil lawsuit from which this case arises... they want to stop the flood of cases.

They want their orders respected.

Because when Federal court orders are obeyed, then unnecessary civil contempt proceedings won't occur.

The interest of the District Court is in people obeying the order.

And the order is no magic.

The order says, defendant, thou shalt do what Congress has already told you to do under the Trademark Act.

Unknown Speaker: Mr. Bainton, may I--

Mr. Bainton: Yes, sir.

Unknown Speaker: --What if you had a different kind of crime, shortage of U.S. Attorneys to prosecute, and the prosecutor tells a victim, we just don't have enough lawyers to keep this case on the docket.

And the victim says, well, I've got a lawyer and I'll pay him if he can handle the prosecution.

Would there be any problem with that?

Mr. Bainton: Yes, if the judge is going to appoint him.

Unknown Speaker: No, the--

Mr. Bainton: I think that... I think that the... and there is provision, happens all the time in securities fraud cases when representatives of the SEC are specially appointed by the Attorney General to prosecute criminal securities cases or criminal anti-trust cases.

Unknown Speaker: --Well, stick with my hypothetical.

Mr. Bainton: So that provision is there.

Unknown Speaker: Stick with my hypothetical.

Mr. Bainton: It's never been used in the way you suggest, sir, but it could be.

Unknown Speaker: But stick with my hypothetical for a minute.

What would be wrong, if anything, with just doing that?

Would there be any ethical problems?

Mr. Bainton: Who is doing it?

Unknown Speaker: Well, either the judge or the U.S. Attorney says, we don't have enough lawyers to go around.

We will designate you attorney for the government for the purpose of this case, even though we know you are the attorney for the victim, and your particular interest in it is remedying the wrong of the victim?

Mr. Bainton: Well, the answer to the question really depends... depends in large part on who does it.

The court doesn't have the power to do it, under separation of powers.

Unknown Speaker: Well, assuming power, would there be any ethical objection to such an arrangement?

Mr. Bainton: If the Attorney General were to do it.

Unknown Speaker: Because it seems to me it's quite a close parallel.

Because you have the same relationship with the victim of this wrongdoing as in my hypothesis the lawyer would have with the victim of the ordinary street crime?

Mr. Bainton: I think... I think under the statute cited by the Attorney General there might... it would be unlawful for the Attorney General to make such an appointment--

Unknown Speaker: Well, let me put it differently.

Mr. Bainton: --because it would be a violation of the statute.

Unknown Speaker: What if Congress passed a law and said, we think this is a good way to get a lot of backlog out.

We would recommend a procedure.

This would be done on a routine basis.

I think you'd suggest that's a good idea.

Mr. Bainton: The... the... there are two parts to the answer to that question, sir.

The first part is, the only person who could make such an appointment is the Attorney General of the United States.

Secondly, the conflict of interest statute cited by the Solicitor General would make such an appointment as a proposition of statutory law by the Attorney General unlawful and therefore improper.

Now, the next question, I suppose, is, suppose that statute didn't exist, that statute was not a bar to such action by the Attorney General, would there be an ethical problem?

I don't think so.

Unknown Speaker: xxx was the way crimes were prosecuted at the time of the Constitution.

Mr. Bainton: That's correct, sir.

Unknown Speaker: There weren't a lot of U.S. Attorneys around.

The typical prosecution was by the victim's attorney.

Mr. Bainton: That's correct.

I'm running out of time.

I would like to talk briefly about the request that this Court exercise its supervisory powers to change the practice under Rule 42(b).

We think that that is very ill-advised, because this Court writes the criminal rules of procedure.

This... an advisory committee exists, and neither the petitioner nor the Solicitor General has offered any reason to depart from the usual practice under 18 U.S.C. Section 3771.

In other words, if you conclude that this practice doesn't violate the due process rights of defendants, generally, or more particularly, the defendants in this case, but you nonetheless say, maybe this... maybe there's a better way.

And I'm an optimist.

I'd always like to think there's a better way.

I most respectfully suggest that neither petitioners nor the Solicitor General have offered you one, and I personally don't know of one.

But perhaps it exists.

Then there's a procedure so this Court can draw upon the collective wisdom of scholars, of practicing lawyers, of U.S. Attorneys and of lower Federal judges.

And I think that practice should be followed by this Court, if it's so inclined, and it would be a mistake to exercise its supervisory powers in the context of this case.

I believe two other points and I'm done.

I believe Justice Blackmun asked Mr. Cohen about the State law of California with respect to the taping.

In the District Court's opinion at 592-748, it discusses a line of Ninth Circuit cases which say that it would be unconstitutional for the State of California to proscribe the manner in which Federal law enforcement officers can conduct an investigation.

And therefore, it would be improper for California to tell the FBI or any other Federal law enforcement officer that it cannot engage in one-way electronic eavesdropping.

In its opinion the Ninth Circuit said that that construction of the statute was ridiculous, and therefore rejected it.

And finally, I'd like to emphasize that Justice Scalia's point about the investigation, the remarks about... the remarks by petitioners about the... about the impropriety of the investigation, I think, are the largest red herring in this case.

Justice Scalia, I believe you're absolutely right when you say that this is what happens in investigations of trademark counterfeiting everyday of the week.

The only thing that Judge Lasker's order changed from what would occur on a garden variety case is, we have videotapes and audio tapes of what was said.

We have, I most respectfully submit, the best evidence of what occurred on those occasions.

And that can do nothing but to protect the legitimate interests of the defendants in this case.

Thank you.

Rebuttal of James A. Cohen

Chief Justice Rehnquist: Thank you, Mr. Bainton.

Mr. Cohen, you have one minute remaining.

Mr. Cohen: Thank you.

I'll speak quickly.

First of all, with all due respect, Justice Rehnquist, the system in this country at the time of the Constitution was a system of public prosecution.

Not only that, for the past 100, 150 years, the system in England has been a system of public prosecution at least as it would apply to this kind of case.

In England, the police, not the victim, hire the private attorney to manage... to prosecute the case.

Second of all, it is simply not true that Mr. Bainton went to the U.S. Attorney a few hours after the appointment.

He was appointed on March 31st, and the tapes began to run.

And they ran from March 31st until April 6th.

That's when the letter went out to the United States Attorney.

Thirdly, if you examine the appendix at pages 103 to 106, you'll see letters in which the hats, as you said, Justice Marshall, kept changing between the special prosecutor hat and Vuitton's hat, in terms of making deals with Rochman, and then the lodging, which we filed with the clerk of the court, at pages L36 and L39, the same hat sort of switched... I should say; well, it doesn't matter... with respect to Mr. Pariseault, who was also bargained with, depending on whose interests were at stake at that particular time.

Finally--

Chief Justice Rehnquist: Your time has expired, Mr. Cohen.

Mr. Cohen: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Rylander - Oral Argument

Wed, 18 Feb 2009 07:11:16 +0000

Case:

United States v. Rylander

Media File:

81-1120_19830118-argument.mp3

Related Transcript:

81-1120_19830118-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We'll hear arguments next in United States against Rylander.

Mr. Wallace, I think you may proceed whenever you're ready.

Mr. Wallace: Thank you, Mr. Chief Justice, and may it please the Court:

This case is here on the Government's petition from the Court of Appeals' reversal of a judgment holding the respondent in civil contempt for noncompliance with an order enforcing Internal Revenue summonses.

A motion to expand the issues beyond those raised in the Government's petition was denied by this Court.

Briefly, what occurred here was a summons was issued as part of an investigation of respondent's tax liabilities for the years 1973 through '77.

The summons called upon him as president of two real estate corporations to produce the books and records of those corporations, as well as to testify.

When he failed to comply, the usual petition for enforcement of the summons was filed within a... a supporting affidavit by the Internal Revenue agent, and a show cause order was issued for the summons enforcement proceeding.

There were some evasions of efforts to serve the order.

Those are for the most part more relative to the criminal contempt proceeding rather than the civil contempt proceeding now before the Court, although they could have a bearing on the respondent's credibility when he did appear.

Eventually he was served and directed to appear at an enforcement hearing held about one year after the summons had been issued, and he was also asked to respond, to put into issue any issues that might be controverted.

He neither appeared nor filed a response, nor did anyone else appear on behalf of the corporation, although he did prior to the hearing send a letter to the Deputy United States Marshall and to the Court in which he claimed he was not the president of the corporations and had been improperly served.

Because the Government therefore anticipated that he might put that issue into contest into the summons enforcement proceeding, it did come prepared to make proof that the corporations had been duly chartered with him as a director and had not been dissolved and that he had acted in banking and business transactions on behalf of the corporations.

This offer of proof was made in his absence, and an enforcement order was issued, and he was ordered to comply.

And when he failed to produce the records upon meeting with the agent in pursuit of that, and after other difficulties in serving him again, eventually a show cause order for the contempt proceeding was served upon him after his arrest pursuant to a bench warrant; and the hearing was held some months later with the respondent in attendance.

And at that time he again did not testify or present any evidence, was... the Government attempted to further bolster its case with some additional evidence, but that proved to be unsuccessful because the witnesses in one case pleaded the Fifth Amendment, in the other case had nothing of value to state.

And the District Court held the respondent in contempt and then gave him an opportunity to purge himself, whereupon he offered a written statement entitled "Oath in Purgation of Contempt", but refused to testify or to be cross examined on the statement and did not produce any other evidence in response to the order.

And the District Court found that he as president of the corporations had possession or control of the records and had not satisfied his burden to show that he could not comply with the summonses and failed to produce any evidence of the contempt proceeding.

Now, while our position gained some strength from the belated nature of the respondent's submission of this oath in purgation, as I will explain for purposes of the civil contempt, our basic position would be the same if he had made precisely the same submission at the outset of the summons enforcement hearing.

This Court has considered the showing that the Government is required to make in an Internal Revenue summons enforcement proceeding on a number of occasions.

The basic case, United States v. Powell, is of course cited in the briefs.

And if those cases mean anything they mean that when the Government made that showing, it is entitled to have its summons enforced unless... and the question in this case is what does that "unless" mean in the context of a summons seeking production of corporate records from an officer who would ordinarily be their custodian, have either possession or control over them.

And in answering the question of what the "unless" means, we look to, and we think it's proper for the Court to look to, cases involving not only Internal Revenue summons but other forms of legal process such as grand jury subpoenas, congressional subpoenas, proceedings to direct a bankrupt to turn over his records to a trustee, et cetera.

Because the issue is basically the same, and the principle that we draw from the case law is that when the Government has made its requisite showing, it has established a prima facie case that it's entitled to enforcement, that the order should be complied with, and that a burden of production then shifts to the respondent to introduce some evidence of why he should not comply.

The burden of persuasion does not shift, but a burden of production shifts at that point because the Government is not required to anticipate and negate every possible defense.

This is... this principle is explained perhaps most explicitly in an excerpt that we reproduce on page 24 of our brief from this Court's opinion in United States v. Fleischman, which happened to be a criminal contempt proceeding involving a congressional subpoena.

But it explains that the rule being adopted is a rule affecting merely the time and manner of proof rather than a shift of the burden of persuasion, but it explains that the prosecution would be under a serious practical handicap if it must negate all possible defenses, and that the... the relevant facts are peculiarly within the respondent's knowledge of why, contrary to what one would normally think of the president of a corporation, he is not in a position to comply with the subpoena.

There is sort of a presumption of business regularity, that the person normally thought to be in possession or control of a business' records would be the person to seek them from.

This is the way grand jury subpoenas are issued, and there's never any further showing than that.

Then it's up to that officer to say why it is that he can't comply.

Unidentified Justice: Mr. Wallace, could I interrupt you for a moment?

You say you don't think it makes any difference that he was late making this.

He didn't make the same showing at the original judicial enforcement proceeding.

Do you rely at all on the fact that instead of getting on the witness stand, he submitted this so-called written oath?

Supposing he had gotten on the witness stand and said exactly the same thing he said in the oath?

Mr. Wallace: That would be a very different case.

Our position is that he submitted no evidence at all.

Unidentified Justice: Oh, I see.

Mr. Wallace: That's what we're leading up to.

It wouldn't have mattered whether he did it at one hearing or the other.

Unidentified Justice: Let's assume for a moment, Mr.... are you finished?

Well, it's... yes, I am.

Because I gather you would say it would be different if he, instead of submitting a written affidavit he'd given oral testimony saying in haec verba the same thing.

Mr. Wallace: If he had submitted himself to cross examination--

Unidentified Justice: No, no.

No.

Without cross examination.

Mr. Wallace: --Oh, no.

Cross--

Unidentified Justice: In other words, if he'd done what he did in the Curcio case, which was get on the stand, say I don't have the records, and I refuse to say why because of the privilege, which is exactly--

Mr. Wallace: --The... the... but in the Curcio case, the only thing contested at the appellate level was his refusal to testify rather than his refusal to produce the records.

And what was upheld was his right not to testify if he claimed the privilege against self-incrimination.

But the Court was very careful... and this is one of the cases that we draw our principle from... to distinguish the question of producing the records that he, because he held them in a representative capacity had no privilege not to produce.

And if the requisite showing is made to support the production order, that is our prima facie case that it requires a burden of production to shift to him to show why he can't produce them.

Unidentified Justice: --But the Curcio case holds that the claim of privilege is proper.

You agree with that?

Mr. Wallace: With respect to the testimony that the subpoena asked him for.

Unidentified Justice: Right.

And but, therefore, the testimony on... his direct testimony "I don't have the record" is acceptable without subjecting himself to cross examination.

That's what the case holds.

Mr. Wallace: With... with respect to--

Unidentified Justice: Nonpossession of the records.

Mr. Wallace: --With respect to the... the order in the subpoena requiring him to testify with respect to the records.

But the case--

Unidentified Justice: Under the Curcio opinion would Curcio have been subject to cross examination on his answer "I don't have the records"?

You know, not on the issue of where they are if you don't have them, but on the issue of does he have them?

Mr. Wallace: --He would be subject to cross examination in the context of enforcing the order to produce the records, if that was the way he chose to respond to that order through his own testimony.

Unidentified Justice: Well, that doesn't really... that doesn't really answer my question, I don't think.

Mr. Wallace: I... I... I... I... yes.

Unidentified Justice: He gets on the stand and says

"I haven't brought the records. "

"I don't have the records. "

And concededly, under Curcio he cannot be cross examined as to where the records are if you don't have them.

Could he have been cross examined consistently with the Curcio opinion on his answer "I don't have the records"?

Mr. Wallace: Well, in... in our view he could be cross examined on both of those issues in the context of the need to get compliance with the order to produce the records.

He... he... he was responding... I mean what was at issue on appeal in Curcio was the question whether he had to testify concerning the records in response to the subpoena.

But in order to meet his burden with respect to production of the records, he doesn't have to take the stand at all.

He can introduce other evidence to show that he cannot produce the records.

Once the Government has made the requisite showing that he is an officer who ordinarily would be holding the records or have them available in his representative capacity, that is all the Government needs to show in order to get its production order enforced.

And then it's up to him through either his own testimony or the testimony of third parties or of other witnesses that he wants to bring in, and compulsory process is available to him to bring them in.

Unidentified Justice: Mr. Wallace, kill the hypothetical case.

Suppose his answer truthfully was "I burned them up".

He couldn't testify to that, could he, because he'd violate his Fifth Amendment, couldn't he?

Mr. Wallace: Well, he... he has that problem.

That is... that... he--

Unidentified Justice: You don't know any way out of that problem, do you?

Mr. Wallace: --Well, what I think should not be the way out is to have the law reward him for destroying the records when process issues by allowing him through refusing to testify and pleading his privilege against self-incrimination to defeat a... a production order that would otherwise result from the showing that the Government made.

Unidentified Justice: Is there any holding in this Court that prohibits a judicial inquiry into the good faith of the assertion of the Fifth Amendment?

Mr. Wallace: Not at all.

Precisely the contrary.

The Court--

Unidentified Justice: It's done constantly in trial courts, isn't it, when... when there is an apparently dubious assertion of the Fifth Amendment and cross examination develops that there is no basis for a genuine Fifth Amendment claim?

Mr. Wallace: --That is... is... is precisely the case.

And even when there is a proper basis for a Fifth Amendment claim... and this is our basic point here... what the Court has held time and again is that once a witness chooses to offer testimony upon a fact that's been put into issue, and in this context upon whether he can produce the records, if he chooses to contest that through is own testimony, that operates as a waiver of the Fifth Amendment privilege as to matters reasonably related to that question, to the question on direct examination.

Unidentified Justice: Curcio held squarely to the contrary.

Mr. Wallace: Well, that is not our view of Curcio, because the production question was not what was at issue.

And--

Unidentified Justice: Well, would you tell me what you think Curcio holds?

Mr. Wallace: --It... it... it holds that he can refuse to testify in response to the subpoena requiring him to produce and testify.

We are not in this proceeding--

Unidentified Justice: Well, it holds he... he testified that he didn't have the records, and then he said I won't tell you where they are because I assert the Fifth as to the cross examination.

Exactly what this man was doing.

Mr. Wallace: --That... that... that is correct and... but all I can do is repeat that what was contested was that whether he... he responded adequately and waived his Fifth Amendment privilege with respect to the order that he testified concerning the records.

Here we're not... we're not trying to enforce the subpoena requiring him to testify in face of his Fifth Amendment claim at all.

We're just saying that if he doesn't want to testify, he has to make some other showing of why he can't produce the records.

And if he chooses to make that showing through his testimony, then the normal principle of waiver of cross examination with respect to related matter has to apply.

Unidentified Justice: Mr. Wallace, I'm not quite sure yet that I understand your position.

Did I understand you to say that if the individual here, the defendant, the suspect had simply taken the Fifth rather than making any effort to explain why he didn't have the records or even to deny that he had them, could he have just said as soon as you've made your prima facie case I claim the privilege against self-incrimination?

Mr. Wallace: He... then I think he would be subject to civil contempt, because he has done nothing to satisfy his burden of production.

Unidentified Justice: So he would at least have had to bring in the... a witness, a third party, for example, to explain his situation.

Mr. Wallace: We have made the requisite showing.

Then there is a burden of production on him.

That is the way we read the law and the cases.

Unidentified Justice: Well, if he gets on the stand and says I don't have them, even if he may not be cross examined beyond that, you say that he hasn't made the requisite showing.

Mr. Wallace: Well--

Unidentified Justice: Don't you?

Don't you say that?

Mr. Wallace: --That is correct.

I mean at... at... at the least that may not be entitled to credence.

Unidentified Justice: His uncross-examined... his uncross-examined assertion is not... he cannot use an uncross-examined assertion to satisfy his burden of showing why he can't produce.

Mr. Wallace: That is our position.

Unidentified Justice: Yes.

Mr. Wallace: And that is precisely the error that we think the Court of Appeals made in this case.

The oath in purgation really was in the nature of a pleaing of what it is that he could prove if he... if he put in his proof.

Unidentified Justice: In your view could he be then asked and required to answer

"Did you ever have possession of them? "

Mr. Wallace: I think that would be a proper question on cross examination, and that if he chose to testify on the subject he would have waived that.

He would have waived any effort to find out from him what became of the records.

Unidentified Justice: I'm not talking about a waiver.

I'm talking about a compelled answer.

Let's assume a hypothetical now.

The man is put on the stand.

It's established by objective evidence other than his testimony that at one time he was the secretary of the corporation, and then he's asked where are these records.

He takes the Fifth Amendment.

Then the next question is

"Did you ever have these records in your possession? "

Can that answer be compelled?

Mr. Wallace: I rather doubt it, not in the face of this Fifth Amendment claim, because it could be a step in the chain of proof against him.

But--

Unidentified Justice: Without any explanation of how the Fifth Amendment protection is required to explain whether he ever had possession of them?

Mr. Wallace: --That... that... that might be a proper inquiry into whether he has a basis for the claim.

Unidentified Justice: But if he... if he invokes the Fifth Amendment in response to a question like that, the District Court is entitled to weigh that invocation of privilege against him in making a factual determination as to whether he testified truthfully on the original question, isn't it?

I mean this is a civil proceeding.

Mr. Wallace: Yes, yes, that is correct also.

Unidentified Justice: You can also say if you're going to take the Fifth Amendment and not make a showing, you're going to have to produce the records because you just haven't made... unless you permit cross examination, you just haven't satisfied your burden.

Mr. Wallace: That is precisely our position.

Unidentified Justice: Well, I suppose... doesn't the court have to, on your motion to strike, simply strike the preceding testimony and the answer?

There's nothing then in the record in the way of evidence that he's produced.

Isn't that the reality the court must enforce?

Mr. Wallace: That is our position.

That is our position, that he has produced nothing except something that's in the nature of a pleading that the Court of Appeals erred in giving any evidentiary weight to.

And--

Unidentified Justice: But if he takes the stand and says

"The reason I didn't produce them is because I don't have them and I never had them. "

I don't know why that is not an adequate answer.

Mr. Wallace: --It... it... it may well be, but it would be subject to the test of cross examination.

Unidentified Justice: And you ask him "Did you ever have them", and--

Mr. Wallace: Well, we might ask--

Unidentified Justice: --And then he says,

"I refuse to answer on the grounds it would incriminate me. "

I think he has a perfect right to do that, doesn't he?

Doesn't he?

Mr. Wallace: --Well, then we... we might... he might still not satisfy his burden with... with that kind of testimony.

That's a pretty thin showing for a president of a corporation to make with respect to corporate records.

And he's not--

Unidentified Justice: When I take the Fifth Amendment--

Mr. Wallace: --The fact that he's taken the Fifth Amendment does not require the District Court to give credence to his testimony prior to his taking the Fifth Amendment.

If anything, it detracts from the credibility of his prior testimony.

Unidentified Justice: --Well, I don't understand what else he can do after he asks and says that my answer would incriminate me.

Mr. Wallace: Well, that... that is up to him.

It depends on the circumstances what else he can do.

Unidentified Justice: But isn't that what he did here?

He said "I would incriminate myself".

Mr. Wallace: Here he didn't submit himself to any cross examination whatsoever.

He refused to take the stand.

Unidentified Justice: All you're saying is that the Government can't have... all you're saying is that he can't have his cake and eat it, too.

Mr. Wallace: That is correct.

I mean under the District... under the Court of Appeals holding, he has been put in a stronger position than a forthright witness who got on the stand and who submitted himself to examination by the Government, and whose credibility was undercut by the Government's cross examination, and who was disbelieved by the District Court.

The... the... here someone who refuses to take the stand at all and couples this written statement, which he tries to get weighed as evidence, with a plea of the Fifth Amendment has been put into an impregnable position in comparison with a forthright witness who does take the stand.

Now, that can't be right.

Unidentified Justice: Well, of course, you're really disagreeing again with Curcio, because of course that same thing happened there.

But what is your understanding, Mr. Wallace, on what will happen on remand if the Ninth Circuit order were carried out?

Didn't they send it back for an investigation of the bona fides of the Fifth Amendment claim?

Mr. Wallace: That is correct.

Unidentified Justice: And what do you understand that means?

What will they be doing?

Asking him the factual basis for his... for his claim, is that it?

Mr. Wallace: As far as I can tell.

They didn't really specify.

And, you know, my surmise is really no better than anyone else's on that.

I don't see what else would be at issue.

There might be a further effort made by the Government to bolster its proof, but our position is that we've already introduced more than is necessary under the Powell case and others that spell out what our requisite showing is in the absence of some production of evidence on the other side.

I'd like to reserve my remaining time, please.

Mr. Harbison: Mr. Chief Justice Burger--

Chief Justice Burger: Mr. Harrison.

ORAL ARGUMENT OF JOSEPH F. HARBISON, III, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Harbison: Mr. Chief Justice Burger, and may it please the Court:

What this case is really all about is whether or not my client, Mr. Rylander, met his burden of production on his defense of inability to comply by several things, not just his oath and affirmation that he didn't have the documents, but when he showed up in front of the IRS on February 4th and said I don't have them and I take the Fifth, when the agents testified on the trial on October 8th that he had said that, when he filed the oath, and finally, in answer to Justice Stevens' question, when he took the stand on October 23rd and Federal Judge Carlton said to him,

"Mr. Carl... Mr. Rylander, you have filed an oath in purgation stating that you do not have the records. "

He said,

"That is correct, Your Honor. "

Judge Carlton said to him, "Where are the records"?

And he said,

"I take the Fifth on the advice of my counsel. "

As the Court is aware from the record, I was appointed to represent him on October 9th, the day after the trial, a combined trial, civil and criminal contempt.

The first thing I did immediately was have the civil contempt vacated.

We then proceeded to adduce more evidence.

So it's not just his oath that's in evidence to support his burden.

But the issue here is is the oath... and I say along with his other testimony, including that on the stand and that in front of the IRS agent... sufficient to meet his burden of production at a contempt hearing to prove his inability sufficient to put the burden of production again back to the Government along with their burden of persuasion, which they had all along, by clear and convincing evidence to prove that the records that they sought ever existed, which they never showed.

If we return to the summons enforcement hearing, which this Court has said in Donaldson must be summary in nature, and this Court said in Powell you must meet only these minimum conditions, and in Freedom Church said that the issue of his possession, the person summoned, is never in issue was met.

Their... their offer of proof there was... and you have to remember this is 1979 now... excuse me... 1980... that he was president of a corporation in 1975, that he signed two checks in 1975, that he was president of the other corporation in 1975, and that he signed two checks in 1975.

As the Court should be aware from the trial on October 8th, the Government introduced two affidavits from the Secretary of State of California that both of those corporations weren't active.

One died in 1975, and the other one had been active in '74, '76 and '78.

So the Government at the summons enforcement hearing never had the burden to show that those records existed, never tendered the issue that those records existed, and never proved that those records existed.

At the contempt trial for the first time Mr. Rylander said,

"The reason I can't produce them is I don't have them. "

And when asked why don't you have them, he properly, under McPhaul, Curcio, O'Henry, Meeks, Traub, Hansen Niederhauser and every other case we've cited in our brief, said,

"I can't tell you that. "

"I take-- "

Unidentified Justice: You say... you say at the contempt trial he said he didn't have them.

Did he actually testify at the contempt trial?

Mr. Harbison: --Yes.

That's why I made the point that the day I was appointed, the day after the so-called trial, I had the civil contempt vacated.

There was no longer a conviction of civil contempt.

Judge Carlton gave me time to prepare for a continued hearing.

That hearing was had on October 23rd.

At that hearing Judge Carlton forced Mr. Rylander to the stand.

He asked him the question, "Where are the records"?

And Mr. Rylander said,

"I can't answer that. "

"I invoke my Fifth Amendment on the advice of counsel. "

He then reinstated civil contempt.

Unidentified Justice: He said, "Where are the records"?

Did your client at that hearing himself get on the stand and say "I don't have the records"?

Mr. Harbison: No.

He filed the oath, the affidavit saying I don't have them.

The first question from the Federal judge is

"You have filed an oath stating you do not have them. "

He said, "That is true".

The second question was "Where are the records"?

He said, "I take the Fifth".

That was the end of the questioning.

Judge Carlton said I've made my record.

Take it to the Ninth.

Unidentified Justice: Well, what was he held in contempt for... failure to produce the records or failure to testify?

Mr. Harbison: That's a very interesting question, Judge White.

The initial--

Unidentified Justice: Well, let's assume for the moment that the judge had said,

"Look, I know you're taking... you're validly taking the Fifth Amendment, but you have not made a showing. "

"I think the Government has made its case. "

"I know you disagree with that, but the Government has made its case, and you are either going to have to explain why you can't produce, or you're going to be held in contempt for failing to produce, not for failing to testify. "

Mr. Harbison: --Okay.

I--

Unidentified Justice: That's Curcio.

Mr. Harbison: --Okay.

Well, I... I have a couple of points to make to answer your hypothetical.

First, there is no difference between producing and testifying.

The original summons said,

"Mr. Rylander, come testify and produce. "

The summons enforcement order that the judge signed said "Produce".

Unidentified Justice: Well, he certainly never made any claim that producing the records would... would violate his Fifth Amendment rights.

Mr. Harbison: No.

And nor do I state that here.

Unidentified Justice: No.

Well--

Mr. Harbison: I think this Court--

Unidentified Justice: --So there is quite a difference between those--

Mr. Harbison: --Certainly.

Unidentified Justice: --Two things.

Don't tell me there isn't.

Mr. Harbison: Well, that... I haven't finished yet.

In this case there isn't because there are two purging conditions.

The conditions are produce or testify.

Now, that's my precise point here.

To carry his burden of production, to force him to go further than to say I don't have them and I can't tell you their whereabouts, puts him in the cruel trilemma that the Fifth Amendment, the policies behind it, are designed to protect.

He's forced to produce something that may not exist.

If it doesn't exist, he goes to jail.

He's forced to incriminate himself if he can't produce for some crime.

Unidentified Justice: Well, has he made any showing that they don't exist?

Mr. Harbison: My point is, Your Honor, that he doesn't have to make that showing.

That's the Government's burden to show that the records exist once he states inability.

Once he tenders an issue of fact "I don't have them", then the burden goes back to the Government to prove that they exist, and if the Government proves that, he's in contempt.

Unidentified Justice: Well, suppose they... let's make this concrete... suppose the treasurer of... or the secretary of General Motors Corporation is called as a witness and he's asked to produce the minutes of the last five meetings of the board.

Do you think he could get by with this procedure you're talking about?

Mr. Harbison: He would have to show up--

Unidentified Justice: He's presumptively in charge of those records unless he can demonstrate that he is not.

Mr. Harbison: --No, Your Honor, I disagree with the so-called presumption that he is in possession of those records without at least some showing.

The case of Straub, Hansen Niederhauser, Rizzo... they all say no contempt unless the Government--

Unidentified Justice: Are those cases from this Court?

Mr. Harbison: --No, but Fleischman is, Your Honor.

Fleischman impliedly said since the Government has shown that the record exist, now the burden is on you to give us some reason for inability, and you've given us nothing.

You never made a statement to the Committee on Un-American Activities, you never made a statement to the District Court.

If you had of said... they used the word "any"... if you hadn't made any reference to the fact of inability, then the burden of persuasion is back to the Government to show they exist, and if they show--

Unidentified Justice: I suppose the point is, though, that if all he says is

"I don't have them and won't submit to cross examination. "

then the trial court has to strike his statement that he doesn't have them.

So there is no evidence.

That's why there is no evidence.

Mr. Harbison: --I disagree, Justice O'Connor.

He has met his burden of production.

I agree that at a contempt hearing the alleged contemptor has to tender the issue, the issue being inability.

He does that by saying "I don't have the records".

Now, that... if that's the only evidence--

Unidentified Justice: He wouldn't let himself be cross examined on that.

So that evidence goes out--

--So that evidence goes out--

--Front, and there's nothing.

Mr. Harbison: --No.

I think you missed the point of Curcio and McPhaul.

Once he says "I don't have them", just like Curcio... Curcio admitted they existed and said "I don't have them".

And the Court... this Court held he couldn't cross examine him as to whereabouts.

Unidentified Justice: Well, I know, but they... they... they held him... want to hold him in criminal contempt for failing to testify any farther.

They did... they carefully set aside the question about production.

Right.

Mr. Harbison: Well, that... that was answered in O'Henry.

O'Henry is a well-reasoned opinion of Curcio and McPhaul.

Unidentified Justice: Is O'Henry a case from this Court?

Mr. Harbison: No, it is not.

It is, I believe, a Fifth Circuit.

But it's a well-reasoned opinion that takes into account Curcio and McPhaul just as Meeks, which is pending before this Court, and as does Rylander.

It was established long ago in Austin Bagley Corporation by Judge Learned Hand that a corporate custodian has no personal Fifth Amendment right not to produce corporate records, but having produced those, he can give unprivileged testimony to identify them.

He makes explicit that which is implicit in their production.

Curcio and then O'Henry after it takes that rationale and says when a corporate custodian produces the record and says... when he doesn't produce the records, his burden requires him to take the stand, testify under oath, as Mr. Rylander did here, "I do not have them".

Then under the rationale of Curcio, you can't cross examine him any more because you're going to violate his Fifth Amendment right.

That's--

Unidentified Justice: Even the question "Did you ever have them"?

Can't ask him that?

Mr. Harbison: --That's one of the questions in Curcio, one of the 15 written questions: "Did you ever have them"?

and

"When did they become unavailable to you? "

Unidentified Justice: The setting is different in Curcio.

Take my hypothetical, the secretary of General Motors, and let's enlarge a little bit.

The evidence shows that the records have been kept by him up to the last five meetings, the most recent five meetings, his name on them, no question about it.

Then he's asked about the last five, and he just simply says Fifth Amendment.

Is that the end of it?

Can no inquiry be made thereafter?

Mr. Harbison: No.

Because in your hypothetical, Your Honor, somebody has shown that those records existed at one time, and in all the cases the Government cites, either at the summons enforcement or the contempt hearing, one of those two the Government carried its burden.

They showed that the records exist.

They showed either that they existed, or like in Oriole the only year that was missing was 1925, in Maggio the trustee made a specific finding in the turnover order that they existed, in NLRB v. Transocean a Special Master was appointed and specific detailed findings were made that they existed.

That has never happened in this case.

If the Government had tendered the issue of his ability either at the summons enforcement or at the trial and given some evidence, any kind, one scintilla of evidence that those records existed, my argument wouldn't hold up.

Unidentified Justice: Does the law in... does the law in California say who is to have custody of corporate records?

Mr. Harbison: No, it does not, and that's why the Ninth Circuit held that on the--

Unidentified Justice: Isn't that about the only one of the 50 states, isn't it, that says that a corporation doesn't have to keep records?

Mr. Harbison: --No.

A corporation does have to keep records.

Unidentified Justice: And whose possession are they in?

Mr. Harbison: There is no presumption as to whose possession they are in, but it is reasonable to assume that a corporate officer might possess them.

But that presumption is not sufficient to get a conviction of contempt.

Unidentified Justice: Including... including the president.

Mr. Harbison: Including the president.

Unidentified Justice: And is it presumed under California law that this president we are now talking about did at one time have possession of those records?

Mr. Harbison: Well, apparently someone made that presumption that since he might have had them in 1975, he still ought to have them in 1980, but there's no proof.

Unidentified Justice: Well, do you agree that they... he presumed to have had them in '75?

Mr. Harbison: No, I do not.

Unidentified Justice: You presume that he violated the California laws?

I'm talking about your client now.

Mr. Harbison: No, I do not, because one of the documents that the Government introduced at trial was an affidavit from the Secretary of State saying that the corporation they wanted the records from was defunct in 1975.

Therefore, they wiped out any presumption they might have had with their own evidence.

Unidentified Justice: Why?

Mr. Harbison: Because they proved that the corporation was defunct; therefore, there's no presumption that it was keeping any records.

Unidentified Justice: If the biggest rum running, dope peddling corporation in a state is caught by IRS or somebody and the ring leader is subpoenaed to bring in the records, if we follow this case, will his best defense be to burn them up?

Mr. Harbison: Well, that's apparently what the Solicitor General is arguing, that it will be very difficult to enforce the law.

But I don't think that this Court should make an exception and carve out a piece of the Fifth Amendment because it's going to be difficult--

Unidentified Justice: I said in my hypothetical case.

Mr. Harbison: --Is it going to be difficult?

Unidentified Justice: Yes.

Mr. Harbison: I would need more facts.

Do they have the liquor?

Did they confiscate it?

Is the only way to convict them the records?

Then it would be difficult.

If there's some other means, then no, it wouldn't be any more difficult than any other case.

Unidentified Justice: But wouldn't that be the normal thing for a corrupt law... not law-abiding but law-destroying organization to do would be the best way would be to burn them up?

Mr. Harbison: If they had records--

Unidentified Justice: And the lawyer would say if you burn them up, I've got a good case that'll support you.

Mr. Harbison: --Well, you'd have a better case, because the Government could not--

Unidentified Justice: Wouldn't this be a good one, if we come out your way?

Mr. Harbison: --I don't think it would be good.

It would be harder for the prosecution to prove their case certainly because they... one avenue of proof is now gone.

They won't have the company's records.

Unidentified Justice: My point is... I thought I made it clear... this is the only evidence they had.

Mr. Harbison: Well, if that's the only evidence they have, then it's impossible.

Unidentified Justice: That's right.

So he goes free.

Mr. Harbison: That's true.

Unidentified Justice: Mr. Harbison, I just glanced over Curcio again, and it didn't involve... the issue on appeal didn't involve production at all.

It involved criminal contempt for failure to answer questions for which the privilege against self-incrimination was claimed.

Mr. Harbison: I agree--

Unidentified Justice: The... the Court said that the fact that they were union records and not his personal records didn't mean that he couldn't invoke this privilege against self-incrimination if questions about the union records would in fact incriminate him.

But I don't see how that bears on the production issue here at all.

Your client wasn't sentenced for failure to answer a question to which he'd raised the privilege.

He was sentenced for failure to obey the summons order.

Mr. Harbison: --Yes, but he was sentenced for that because he is unable because of the Fifth Amendment to meet his burden.

Unidentified Justice: He's not unable.

He's unwilling.

Mr. Harbison: Well, see, no one knows that.

It's never been proved by the Government the records exist.

If they don't exist, it's impossible.

Unidentified Justice: But at this stage the Government has come forward with enough, the Government says, so that your client should take the laboring oar for a while, and if he refuses, he's entitled to refuse under the Fifth Amendment, but he's not entitled to go scott-free of the summons order.

Mr. Harbison: Well, therein lies the issue.

He has rowed the oar, I am arguing, by submitting his affidavit, by appearing in front of the IRS agent pursuant to the enforcement order and stating he does not have them, and by taking the stand and saying he cannot testify where they are.

He has done enough.

To force him to go further forces him to give up his Fifth Amendment right and incriminate himself for burning those records, not keeping those records, and subjecting himself to further criminal penalties.

Unidentified Justice: It doesn't force him to give up anything because--

Mr. Harbison: He's going to go to jail if he doesn't.

That's compulsion.

Unidentified Justice: --Well, he's going to go to jail under one of two theories.

It's really his choice.

Mr. Harbison: That's compulsion.

That's compulsion.

Unidentified Justice: But a defendant... but a defendant... counsel, in a criminal case where a defendant, for instance, is charged with murder and the only people present at the scene of the alleged murder were the deceased and the defendant, now, if the defendant wants to plead the Fifth Amendment so he can't take the stand and say well, it was self-defense, then he risks going to jail because he's convicted possibly of the offense charged.

It puts him in a tough position to choose, but we've said he has to make that choice.

He either gives up the Fifth Amendment and testifies fully and tries to get off the hook, or he pleads the Fifth and perhaps is convicted.

Now, how is Mr. Rylander in this case in any worse position than that?

Mr. Harbison: He's in a much worse position, Your Honor, because in your hypothetical that gentlemen is not compelled.

He has a tactical choice to make, albeit difficult.

In this case he either produces the records or goes to jail.

There is no uncertainty.

In your hypothetical the man has a tactical advantage about whether or not to take the stand, and he listens to the prosecution's case, and if he feels it's pretty strong, then tactically he's going to have to take the stand and rebut it.

If he doesn't, he stays off.

That's like McGautha or Brooks v. Tennessee or U.S. v. Jackson.

They're cases that compelled the violation of the Fifth like this one does.

It said you either testify first in your defense, or you don't testify at all.

And the other one said if you plead guilty before a judge under a specific statute, you cannot get the death penalty.

You must--

Unidentified Justice: Mr. Harbison, suppose... suppose that... that... that you would agree that... at the... at the enforcement hearing the Government made a prima facie showing that the records existed and that... and that you would agree to it, that that showing had been made.

Then what is your client's--

Mr. Harbison: --Then I would... I would say to you, Your Honor, if you were the District Court judge and we had legitimate presumption of possession because somebody had shown it at the summons enforcement, which wasn't done here, I would cite to you the case of Maggio.

Maggio specifically sets forth that inability is a defense to Powell for conditions under Powell to stop the order.

And it's also--

Unidentified Justice: --So you're... what you're really saying is that the Government... that there's no way the Government can come back and meet its burden here when he takes the Fifth Amendment.

Mr. Harbison: --No.

Unidentified Justice: All he has to do is say I'm sorry, I just can't... I don't have them.

I can't produce them.

And that's the end of the case.

Mr. Harbison: No.

There's a very good factual distinction in Maggio.

If they had of shown possession at the summons enforcement, then you have a legitimate continuing presumption at the contempt hearing.

Then they have made their prima facie case of contempt, and it's up to him to show present inability to comply.

The burden would be on him.

Unidentified Justice: All right.

If he took the Fifth Amendment then and refused to say another word and produced no other evidence, he would be in trouble.

Mr. Harbison: Yes.

Unidentified Justice: All right.

So when do you... what do you say the Government has to have proved, that they were in existence once?

Mr. Harbison: Yes.

At least to get... the Government makes a very novel argument on page 21 and 25 of their brief.

They claim that the findings of fact entered by the court on October 24th, the day after contempt, created a presumption, retroactive, that he had the records at the summons enforcement hearing eight months before on January 14th.

That presumption carried forward to the trial on October 8th.

That's how they met their burden.

So what they're saying to this Court is we never showed he had possession.

Unidentified Justice: Well, it sounds to me like what you really should argue is that... is that the turnover order was infirm in that there never was a requisite showing to substantiate or to support a turnover order.

Mr. Harbison: If we were in a bankruptcy proceeding, that would be precisely what I'm doing.

But in a summons enforcement, the issue of possession does not arise.

That's what this Court said in Powell.

The only possession in Powell is that the IRS doesn't have them, and Mr. Rylander already beat Agent Vandenburg in a prior summons enforcement by going to the Ninth Circuit and showing that she did have possession.

She lied in her affidavit.

She said I don't have possession, but the IRS did.

Unidentified Justice: Is it... do you think the Government... I'll ask the other side... but do you think the Government agrees that at some point it has the burden of showing existence?

Mr. Harbison: I think they have, Your Honor, because every case they've cited for the proposition that they have this continuing presumption or that there was a final appeal of our order... that is, res judicata... those cases that they cite found possession.

They didn't find possession.

Unidentified Justice: Well, the only difference between... it sounds to me like the only difference between you two then is whether the Government has made an ample showing of possession.

Mr. Harbison: Ever.

Unidentified Justice: If they have, if they have, you just a while ago, I thought, indicated--

Mr. Harbison: I did.

Unidentified Justice: --That your client would have... could not just take the Fifth and be quiet.

Mr. Harbison: No.

That's why the Government doesn't have the... the Government wants to shift the burden back to us.

Unidentified Justice: So this isn't a question of the Fifth Amendment or anything else.

It's just a question of... it's a question of whether the Government made an ample showing and satisfied its burden.

Mr. Harbison: Well, you're right to a certain extent, but here--

Unidentified Justice: Thank you.

[Laughter]

Mr. Harbison: --Here, after my client makes his showing and the burden goes back to them, they want to cross examine him to make their showing instead of them going out and getting the third party or introducing the extrinsic evidence.

They want to convict him out of his own--

Unidentified Justice: Well, how can your client make a showing... that is, at a hearing where there's presumably the facts are adduced by oral testimony... if he simply gets up and makes an assertion, albeit orally, and refuses to be cross examined on it.

I think Justice O'Connor is quite right.

The Government is entitled to have that testimony stricken.

Mr. Harbison: --Your... that hypothetical is akin to a Fleischman-type situation where the Government did show some possession, and the person failed to say anything.

They didn't even say I don't... I don't have the ability.

Unidentified Justice: Well, the discussion... the discussion in Fleischman was not in the context of anyone having taken a witness stand and offered a partial explanation.

It was in the context of having offered no explanation, as I read Fleischman.

Mr. Harbison: That's true.

My client has offered some explanation.

Unidentified Justice: But utterly worthless so far as cross examination is concerned.

Well, it may be... and it may be worthless, but what if you said well, yes, it's worthless, but nevertheless before my client can be held in contempt for failing to produce, there must be... the Government must have shown somewhere in this proceeding that the... that the records existed.

Mr. Harbison: That's precisely my argument.

And until they do, he's got the Fifth Amendment.

Unidentified Justice: Which is a... it's, a) a question of law, and it's also a question of fact: is there some kind of a showing in the record?

Mr. Harbison: Correct.

Unidentified Justice: I'm not sure your responses now are consistent with your responses to me on my hypothetical.

When I hypothesized the secretary of General Motors and the Government showing that he had traditionally kept these records and... up to a point, put his signature on them, all this established so that their existence and his testimony was established, but then they asked him a question and he says he takes the Fifth Amendment, and you say that's the end of it.

They can't ask him when he last saw them, if he knows where they are, or if he knows who has them in custody.

Mr. Harbison: No.

I think we jibe, Mr. Chief Justice, because in your hypothetical you take it as a given that somebody has proved possession.

Unidentified Justice: Well, that is given.

Mr. Harbison: No, it's not given in this case.

Unidentified Justice: In my... I'm talking about my hypothetical.

But you said even the secretary of General Motors may just assert the Fifth Amendment, and that's the end of it.

There can't be any pursuit or cross examination beyond that; that that's an absolute.

Mr. Harbison: Then I would retract that answer and say to your hypothetical once there has been proven possession, the Fifth Amendment is no longer bona fide.

The burden is back on him, and he will... he has forfeited it because the Government has shown they exist.

And he has no--

Unidentified Justice: They still can't make him answer.

It's just that he might be in--

Mr. Harbison: --He's in contempt.

He can legitimately be held in contempt.

Unidentified Justice: --He might be in jail for not producing.

Mr. Harbison: And he wasn't sent there because he wouldn't violate his Fifth Amendment right like he is in this case, because they never carried a burden, either at the summons enforcement or at the trial.

Their argument, their threefold argument here: we didn't have the burden.

If we did have the burden, it was res judicata at the summons enforcement, although the issue was never raised.

And if you don't like that, then when he filed the affidavit, that's not competent evidence to carry his burden.

And if you think it is competent evidence, then he waived his Fifth, and we can cross examine it and carry our burden.

All of their arguments are thrusted at carrying their burden that the records existed, which it didn't, and their arguments fail because there is no proof.

Unidentified Justice: Let me ask you a question, if I may.

I... I detect some change in your position, too, I think.

Assume that he proved that the records were in existence and in the custody of your client at the date he was supposed to respond to the subpoena.

Mr. Harbison: The summons enforcement hearing.

Unidentified Justice: The summons... no, the General Motors example.

And then at the contempt hearing, in civil contempt, not criminal contempt... I understand he's been held in criminal contempt, but that's not before us.

At the civil contempt hearing he gets on the witness stand and says yes, it's true I had the documents then.

I am now, however, unable to comply.

They are no longer in existence, something of that... and he does not explain why, and he pleads the Fifth as to the explanation of why.

Can he be held in civil contempt, in your opinion?

Mr. Harbison: Absolutely.

Unidentified Justice: You think he can be held in civil contempt?

Mr. Harbison: Absolutely, because they proved... they have a legitimate presumption that the records exist, and he has not rebutted it.

He can still take the Fifth.

In my case my client has taken the Fifth, and there never was a continuing presumption.

Unidentified Justice: Well, I understand that, but you think that your--

Mr. Harbison: And there's no proof at the contempt hearing that they ever existed.

Unidentified Justice: --You think under Maggio that he could be held in civil contempt even though he has testified under oath that the documents no longer exist.

Mr. Harbison: Sure.

His Fifth Amendment then was no longer bona fide.

That's why the Ninth Circuit said send it back, and let's see if it's bona fide, and let's see if the Government can carry some burden of proof here to show that the records exist.

Unidentified Justice: Is it your position that once he says they're not, you can't any questions about those records, is that right?

Mr. Harbison: My position is that if the Government at the summons enforcement shows that they exist, they're entitled to a continuing presumption.

If they don't at the contempt hearing, they must put on a prima facie case that the records exist.

In the light of either of those, the Fifth Amendment would fall and he would be held in contempt.

Unidentified Justice: What do you mean when you say... oh, excuse me.

But you argue... you say they don't put on prima facie evidence, right?

Mr. Harbison: Prima facie is--

Unidentified Justice: Well, why isn't it prima facie when he says "I don't have the records"?

He said that.

Mr. Harbison: --That carries his burden, yes.

Unidentified Justice: Well, he said he didn't have the records.

Mr. Harbison: Yes.

Unidentified Justice: So he admitted that the records existed.

Mr. Harbison: No.

He said he didn't have the records that were the subject of the subpoena.

I don't think that's an admission that they ever existed.

Unidentified Justice: He said he didn't have them at this time.

Didn't he infer that he had them?

Mr. Harbison: No, absolutely not.

This case would be akin, I think, on the issue of Fifth Amendment to someone who committed a murder, and the district attorney does not go after that individual.

Either the city attorney or maybe the heir of the person murdered files a civil action, and they hit this guy with a summons, a subpoena, or a motion to produce the gun.

And he shows up and he says "I don't have the gun".

Unidentified Justice: Why not get a man for treason if you're going to give a hypothetical.

They're not talking about a murder.

Mr. Harbison: Well, I'm trying to make a demonstration of the Fifth Amendment.

If he's forced to produce that gun, obviously he violates his Fifth Amendment' because he would be convicting himself out of his own mouth.

That is what the Government here wants to do.

They want to violate my client's Fifth Amendment to carry their burden of proof, and my argument is that his Fifth Amendment holds up as long... as well as his statement that he does not have those records until the Government at either the summons enforcement or the contempt hearing proves that those records exist.

Unidentified Justice: I don't think you're defending everything that you can find in the Court of Appeals opinion then, are you?

Do you think the Government, for example, has to show by clear and convincing evidence that the records are in Rylander's possession or under his control--

Mr. Harbison: Yes.

Unidentified Justice: --Are in his possession or under his control.

Mr. Harbison: Yes.

At some time, either in the summons--

Unidentified Justice: Well, that is not... that isn't what... that isn't what the Court of Appeals is saying.

And do you think their burden of proof is by clear and convincing evidence?

Mr. Harbison: --Absolutely.

And that was one of the reasons that this decision was overturned, because the Federal judge at page 353 of the transcript stated,

"I find you guilty of civil contempt by the weight of the evidence, and I tell you, Mr. Robinson. "

--who was the U.S. Attorney...

"that if the burden is clear and convincing, we have a serious problem here. "

Because he didn't even believe by clear and convincing evidence that Mr. Rylander was in civil contempt.

And the Government in all of its briefs in both the criminal and civil contempt at the Ninth Circuit and its brief here admit that the burden is clear and convincing.

Unidentified Justice: Do you think--

Mr. Harbison: In fact, on page 21 they say it's on us by clear and convincing to prove inability.

Unidentified Justice: --If you think... do you think that at an enforcement proceeding in connection with one of these subpoenas the issue of presumption or existence comes up, that the Government then before it gets a turnover order or an enforcement order must show by clear and convincing evidence that they are then in possession and control of the defendant?

Mr. Harbison: No.

Because they can send the summons to anybody, and under Freedom Church it doesn't even have to be the person in possession.

Unidentified Justice: So they can get a turnover, or they can get an order for him to produce.

Mr. Harbison: Right.

Unidentified Justice: And then--

Mr. Harbison: An order enforcing the summons.

Unidentified Justice: --An order enforcing the summons.

And then if he doesn't produce them and the gentleman comes in and says

"I'm sorry; I don't have them. "

then the Government has to... has to prove by clear and convincing evidence that they are in his possession and under his control.

That's what the Ninth Circuit said.

Mr. Harbison: Yes.

If he says "I don't have them" and takes a valid Fifth Amendment.

If he doesn't have a valid--

Unidentified Justice: I'm not sure.

I'm really not sure what your position is right now.

Mr. Harbison: --If he doesn't have--

Unidentified Justice: I understand your... I understand you think the judgment was wrong.

Mr. Harbison: --Well, if he doesn't have a valid Fifth Amendment, then under Transocean he has to show detail why he doesn't have.

Chief Justice Burger: Do you have anything further, Mr. Wallace?

ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

Mr. Wallace: Yes, Mr. Chief Justice.

We agree that we have to show in a contempt hearing by clear and convincing evidence that he failed to comply with a valid order.

Unidentified Justice: Exactly.

Mr. Wallace: But we don't agree with what the Ninth Circuit said we have to show by clear and convincing evidence.

Unidentified Justice: Well, Mr. Wallace, don't you... do you think that at some place in this whole proceeding the Government must produce at least probable cause to believe that these records are in existence and that he has them?

Is that ever a part of your case?

Mr. Wallace: I wouldn't use the term "probable cause".

We do--

Unidentified Justice: Well, all right.

Then whatever it is that you have--

Mr. Wallace: --We... it can be shown by inference.

Ordinarily you would expect a corporation to have records and the officer to have possession or control of them, as it... there is a finding by the District Court in this case on page 17A, Finding Number 7,

"The defendant as president or other corporate officer had possession or control or both of the books and records of said corporation. "

And this is based partly on this inference from the circumstances, but also on page 54 of the Joint Appendix there is testimony by an Internal Revenue agent who interviewed Mr. Rylander in 1975, that he indicated that at that time the records were in existence, and that they were at Apex Bookkeeping, and an address was given by this agent testifying about what Mr. Rylander said in the interview at that time.

And I want to point out that in Curcio, unlike this case, the Court pointed out quite specifically at page 21 the conviction related solely to petitioner's failure to answer questions as pursuant to the personal subpoena ad testificandum.

He had not been charged with failing to produce the books and records demanded in the subpoena duces tecum.

He had been called to the stand in Curcio pursuant to the subpoena ad testificandum, and the questions were propounded to him.

In our situation he has been asked to produce the records, and it was up to him either to produce them or to submit third party testimony about why he couldn't produce them or to take the stand.

That's his choice of voluntarily taking the stand, although he didn't legitimately do it because he refused to submit to cross examination.

But the court on pages 57 and 58 of the Joint Appendix, the District Court made it quite clear that he could purge himself of the contempt by... merely by indicating his willingness to comply with the court's order relating to the production of the documents, unlike Curcio's situation where he was called to the stand, and the contempt was in failing to answer questions propounded to him.

Or he may forthrightly come forward to this Court and in fact demonstrate that he is incapable of doing so, which doesn't necessarily require his own testimony.

Unidentified Justice: --The court's order didn't make clear that third party witnesses would also suffice, did it?

Mr. Wallace: I... I... I would prefer that it be more explicit, but this portion--

Unidentified Justice: But it's your position that that would have sufficed.

Mr. Wallace: --That's right.

And that is consistent with the court's explanation on page 58 of the Joint Appendix.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Attribution:

The OYEZ Project

Featured:

Muniz v. Hoffman - Oral Argument

Thu, 23 Aug 2012 18:26:17 +0000

Case:

Muniz v. Hoffman

Media File:

73-1924_19750324-argument.mp3

Related Transcript:

73-1924_19750324-argument

Transcript:

Argument of Victor J. Van Bourg

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1924, Muniz against Hoffman.

I think you may proceed whenever you're ready Mr. Van Bourg.

Mr. Victor J. Van Bourg: Mr. Chief Justice and may it please the Court.

The question in this case of course is the question of jury trial in criminal contempt matters and we have two distinct arguments, one being the constitutional argument and one being the statutory argument.

I think the constitutional question has to be discussed first and we will undertake to do that because it rests upon the vague line of what is a serious offense and what is a petty offense and the only statutory assistance we have is Title 18, Section 1, Sub 3, namely the $500.00 provision and the six-month imprisonment provision.

The adjudication in criminal contempt in this case leaves as a great deal to be desired with respect to clarity on that point.

We have a fine of $25,000.00, $15,000.00 of which is suspended much as would be the case in civil contempt, i.e. behave yourself for a year and that $15,000.00 will not be reinstated, but if you misbehave the full $15,000.00 will be reinstated and the degree of misbehavior is not discussed.

It's not -- there is no determination as to whether it would be the same kind of a proceeding as if we would have a motion to revoke probation. On the imprisonment side, the individual, Muniz is told that he's on probation for a year and that the -- it's pointed out to him that the court retains jurisdiction to impose a six-month prison sentence or jail sentence.

Again, we have some vagueness in the judge's orders, but the critical question is whether or not this is a serious or a petty offense and I think that there is no question.

This was not a multi-count issue insofar as the adjudication was concerned.

It was treated as a single count.

It is a $25,000.00 or $10,000.00 fine depending upon how you want to view it and there is a criminal record imposed upon an individual human being who has the potential of going to prison or jail.

Now why do we even deal with that issue when we seem to have a clear cut, a much clear cut presentation on the statutory side?

I think it's very important for us to deal with that issue because we find ourselves confronted with contempts and injunctions throughout various phases of the law and I think it's critical that we deal with the constitutional question on the jury side.

Justice Potter Stewart: -- the individual however is not --

Mr. Victor J. Van Bourg: Has not appealed --

Justice Potter Stewart: -- is not in the position to make the constitutional claim.

Mr. Victor J. Van Bourg: Because of the nature, because of the nature of the adjudication, we do not appeal on the criminal side for James Muniz.

We appeal only with respect to the union on the constitutional side.

Justice Potter Stewart: Well, alright.

Mr. Victor J. Van Bourg: Now the issue Your Honor is --

Justice Potter Stewart: But he can make the statutory argument?

Mr. Victor J. Van Bourg: Yes, he makes the statutory argument.

The union makes the constitutional argument and the statutory argument, Muniz, the individual makes the statutory argument.

But the understanding, the fulcrum question, the understanding of how an institution such as a labor organization operates is what's fundamental to the whole trial of the case.

The union itself did nothing.

The union was held in contempt and adjudicated in criminal contempt and they ordered to show cause against it as an alleged contempt nor was based upon the conduct of the individual Muniz.

Now, labor organization does not authorize its officers, the president in this case to engage in criminal action.

So all of the knowledge, all of the conduct, all of the assumed knowledge, all of the imputed conduct done by the individual is attributed to the organization without anything further being done or said or presented.

So the $25,000.00 exposure to the union is part and parcel and cannot to be connected with the adjudication with respect to the probation and the potential of six-month jail for Muniz.

The theory being is discussed in the cases and as discussed in all the briefs that the union can't go to jail, but its president can. So this contempt is -- the adjudication as the same as it is in most cases.

The union has fined that is will hurt their treasury.

The members who made no consent whatsoever, no proof that they even knew about the conduct, their pocket books are going to be hurt, but the president, we're going to put him in jail or put him on probation.

Now that's -- even though Muniz only can argue of the statutory question, the fundamentals of the case, the notion of contempt in general with respect to labor organizations and their officers and their exposure is fundamentally connected.

Now I think that it would belabor the point for us to recite the provisions of the constitution and to review again and again the provisions of the Section 1, Sub 3 of Title 18 with respect to the $500.00 fine and the six-month jail sentence.

Chief Justice Warren E. Burger: Is the argument you make -- this agency argument any different from what it would be with the corporation and its Chief Executive Officer?

Mr. Victor J. Van Bourg: It is different in many respects for this reason.

A labor organization does have a different life, does have a different foundation and is governed by different statutory considerations than a corporation.

The critical one being that they have constitutions governing much more precisely what can be, what cannot be done by officers and the Congressional enactment specifying the types of things that union officers and unions in general can and can't do.

Of course corporations are governed by different statutory prescriptions and proscriptions and they too have bylaws and they too have articles of incorporation so in a general legal sense of course a corporation and a union can be equated as to the type of legal person they are.

But with respect to how labor unions are organized and how they are regulated by statutory enactments and indeed as to how they are treated by the courts, the practical aspects are that they are different from corporations particularly in this kind of a situation.

Chief Justice Warren E. Burger: But stockholders can, even though it maybe very difficult, they can fire presidents of corporations, can't they?

Mr. Victor J. Van Bourg: Yes, they can.

The union membership however, unless it has an impeachment procedure as is required under the Landrum-Griffin provisions of 1959 cannot fire the president of the union.

He is elected for a specified term and he cannot be fired.

Now, impeachment provisions exist, impeachment proceedings maybe brought.

They are rare and it would require in this case a local union of 7000 to 9000 members for the unions to have knowledge of what's happening as the basis for the proceedings and to bring the impeachment proceedings.

Justice William H. Rehnquist: How long was the President's term of office in this case?

Mr. Victor J. Van Bourg: At the time of this conduct was engaged in, it was his first term and it was not a full term.

In other words, he took over in the middle of a term.

Justice William H. Rehnquist: How long did he have to serve that -- of the remainder of the term?

Mr. Victor J. Van Bourg: As I recall it, it was one half or two-thirds of a three year term.

Now my recollection is not that clear on that point, but it is true and so that the Court is aware of the fact, he was reelected for another term subsequently.

I don't want that issue to cloud any of the questions that have to be determined here, but I do think that in dealing with the question of contempt as to an organization, the solicitor makes much of the fact that because this is a corporation that right to jury trial in his words, “Shall not be extended to a labor organization.”

Well, I don't think the question of a constitution of the United States deals with extension of constitutional rights.

The constitutional rights are there and the thing is a little bit twisted around.

It is the solicitor who argues that that right should be taken away from the union.

Now it's true that the courts have dealt differently with respect to corporate or associate persons as opposed to humans in terms of how they have dealt with the question of a jury trial and Cheff is a good example of course of that issue, nonetheless, the constitutional issue I think is clear, the line has to be drawn.

Lawyers who try these cases both as to corporate persons and as to individuals have to know the line between the petty offense and the serious offense.

We always take the position of the $500.00 and the six months and indeed in this case, the judge in reserving jurisdiction on the adjudication of criminal contempt used the six-month rule or measured as the basis for the jail term or the potential jail term with respect to petitioner Muniz.

He did not however, used the $500.00 rule in imposing the fine.

I will not say more at this time with respect to the constitutional question again because I think that's -- it would belabor the point to go over that again, the Court obviously has all of the briefs before it.

I do, however, want to discuss the statutory question with some emphasis.

We have the clear language of 3692.

We have an absolute contradiction of the Ninth Circuit in our decision in the case that was rendered in the First Circuit in Union Nacional.

I think that that issue thus is squarely before the Court.

Now, the thrust of the solicitor's argument that a jury trial is not necessary in this kind of a contempt would require and of course we agree and urge the conclusion of the decision in Nacional, would require that the plain meaning of the statute to be negated and that the Court not pay attention to the phrase any case involving a labor dispute.

There is no question that the fact situation in our case involves a labor dispute, none whatsoever.

There is no question that it is the kind of a labor dispute which is either protected or prohibited or governed or regulated by Taft-Hartley as well as perhaps by other statutes.

There is no question that it arises -- a cause of action arises because of statutes of the United States.

There is no question that the petition was sought by the Regional Director of the National Labor Relations Board pursuant to the provisions of Section 10 (l) of Taft-Hartley.

Nacional deals with 10 (j) but the authority of the Regional Director to petition for injunctive relief was specifically the same under 10 (j) as it is under 10 (l).

Now, it is urged upon the Court that Congress did not intend a jury trial in the contempt provision -- in a contempt proceeding to prevail because that would interfere with the orderly processing of the scheme of regulation of the Labor Management Relations Act and we submit that that is incorrect and should not be accepted by the Court.

The basis for the submission is the fact that civil contempt has to do with compliance with the order.

That was even conceded by the Ninth Circuit in our case.

Criminal contempt has to do with punishment not compliance.

I think that in this particular case, the punishment was severe and the appendices to the various briefs, the transcript references wherein the District Court judge discussed the penalties are clear.

The counsel for -- the general counsel of the National Labor Relations Board urged upon the court that this was a very serious offense and urged that the Union and Muniz be punished.

3692 clearly therefore would require a jury trial and we can see no way that the plain meaning of the words and plain meaning of the statute can be evaded or avoided.

Indeed, if the Solicitor were to prevail, if the Government's interpretation of 3692 were to prevail, Congress would have engaged in nullity.

The Act would have been totally void.

3692 is not a mere recodification of what previously had existed in Section 11 of Norris-LaGuardia because at the time that Section 11 of Norris-LaGuardia was enacted, the broadened scope of statutory chipping away of the protections against injunctive relief under Norris-LaGuardia had not yet occurred or had not occurred in its fuller measure.

Section 10 (l) is a Taft-Hartley amendment and the timing of the various statutory provisions is important.

3692 is a 1948 enactment.

10 (l) is a 1947 enactment, so Congress knew about 10 (l) at the time they enacted that provision.

And there's much discussion of the 1947 Mine Workers case which dealt with the mine seizure situation, the fact situation arose in 1946 dealt with a peculiar and special problem under a statute which had not as yet been enacted as far as this case is concerned, namely 3692.

We would respectfully submit that the decision on the statutory question of the court in the First Circuit in Union Nacional should be followed by this Court.

Thank you very much.

We'll reserve the balance of our time for rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Solicitor General.

Argument of Bork

Mr. Bork: Mr. Chief Justice, may it please the Court.

This case presents the question of the allowable social response to a situation of widespread disorder coupled with massive and egregious disrespect for court orders.

The Government submits that the contempt convictions of both petitioners of a criminal contempt was proper and neither was entitled to a jury trial under the statute or by the constitution.

I will return to the statutory argument in a moment, but it is rather fully set forth in our brief.

We believe that Congress quite deliberately designed it statutes so that the Labor Board could meet situations like this rapidly.

Congress I think quite reasonably concluded that both rapidity and firmness are needed and that when the Labor Board is the moving party as distinct from an employer, that none of the dangers presented by -- against which Norris-LaGuardia was directed are present.

But, as I say I'd like to return to the statutory argument in a moment, but our constitutional argument is not as fully said forth in our brief as I would like and I would like to modify it somewhat and develop it somewhat here.

As stated in our brief, our first constitutional argument is that criminal contempt hearings do not require a jury when the penalty is against a corporation or a union.

It can only be a fine and so that there is no personal liberty interest at stake.

Now I continue -- we continue to believe that that distinction is an important one between a line -- between fine and a loss of personal liberty and it certainly felt to be quite important throughout our society both in terms of the individual suffering and the degree of social disgrace inflected.

But that distinction may not be enough by itself to be adequate to the concerns of the constitution in this area.

And while we rely upon it as part of our total submission, I wish to have other factors that I think in combination with it are sufficient to show that Local 70 was not constitutionally entitled to a jury trial.

The history of criminal contempts is well known and throughout of course most of the history of this Court time and again claims for jury trials as constitutional right were rejected.

Relatively recently in Bloom against Illinois, this Court required a jury trial for contempt that resulted in two years imprisonment.

Now I stress the recentness of that decision, not in order to suggest that it is not firmly established, this doctrine but rather only to suggest that it is doctrine at the beginning of its growth and evolution rather than at the end.

It's important to recognize I think that categories of contempts are very different, the offenses are very different and the punishments are very different.

With respect to some such as the one involved here where personal liberty as not at stake and where I will suggest that the rational of the Bloom opinion does not quite fit, it should be constitutionally permissible to retain the efficacy of contempt proceedings in their historical form that is without a jury trial.

Bloom I think rested upon two propositions.

The first was that the considerations which make the right to jury trial fundamental for serious crimes are not substantially different from those that apply to serious contempts and the second was that the argument for jury trial is even more compelling in contempt cases because contemptuous conduct often strikes at the most vulnerable in human qualities of a judge's temperament.

The burden of my argument will be to show that there are kinds of contempts that bring into play considerations not present where statutory crimes are involved and some of these considerations are peculiar to certain contempts.

Some of the arguments I will make distinguish all contempts from all crimes.

Bloom against Illinois, so that was enough, but I think when we add to that that some contempts are different from other contempts, we're entitled to look at these differences cumulatively and say that in certain categories of contempts, a jury trial may not be required, it's not indeed required.

Justice Potter Stewart: And certain categories of defendants also, in other words would -- is your argument, your constitutional argument such that it would lead to the conclusion that a cooperation is never entitled to a jury trial under criminal contempt?

Mr. Bork: I don't --

Justice Potter Stewart: Because a corporation by definition cannot be put in prison?

Mr. Bork: I think Mr. Justice Stewart that I would say that perhaps only in combination with the additional factors I wish to mention.

One can imagine fine so large that perhaps they would be oppressive, but with these additional factors present as safeguards, I think it resulted in this case, no jury trial was required.

And I'm going to suggest that in --

Justice Potter Stewart: Corporation or a labor union (Voice Overlap) --?

Mr. Bork: Yes, yes and I'm going to suggest that we are indeed -- I trust that the beginning of an evolutionary development in the law in this area and I cannot for that reason make bright line distinctions.

I think they have a variety of factors to be weighed.

I think they all point towards the constitutionality of what took place here.

But the -- these factors which I'm going to discuss are intended to respond affirmatively to the rational of Bloom against Illinois and thereby meet its rational.

The first factor I will discuss distinguishes all contempts from all crimes and I think as I say were entitled considerate as well as the special factors and that is simply that the penalty in the contempt case is subject to judicial review while the sentence in a criminal case currently is not and that seems to me a very distinct and important difference, the fundamental safeguard in contempts guarding against passionate or prejudice tribunals and that's not yet available to criminal defendants.

The remainder of the factors I'll mentioned distinguish between crimes of criminal contempts as well as between contempts and crimes.

Justice Byron R. White: But if a state statute or a federal statute specified the -- I mean, punishment for contempt?

Mr. Bork: Oh, if it specify the punishment for contempt, then I suppose we'd have to take the --

Justice Byron R. White: Even within someone that -- I mean even there -- that although there were the ranges for discretion, you would still have a traditional rule of none renewability, is that right?

Mr. Bork: I suppose not, but here we have a reviewable fine and I think in cases where we do have a reviewable fine, we certainly have a fundamental safeguard, not available in the criminal case which suggests less need for the jury trial.

The second consideration I want to mention is that this case presents the kind of criminal contempt conviction that can be effectively reviewed on a written record.

It is not turned upon the attitude or tone of voice or bearing toward a judge in the courtroom which is impossible perhaps to recapture on a written record.

Third, the offense to be enjoined, and hence to be punished for violation of a court order is not some vague category like disrespectful behavior, but is instead statutorily defined unfair labor practice or secondary boycott and its application to this particular case is made quite clear by the order which is served upon the petitioner, but served upon the labor union, Local 21 and which petitioner had to violate before any sanction became possible.

The petitioner as I said, much more advanced warning of what conduct was proscribed for him before he could be punished for a violation of that order.

The problem of the human invulnerable qualities of the judicial temperament mentioned in Bloom hardly arises here because the conduct was not disrespect to or criticism of a judge.

Rule 42 of the criminal rules put -- makes particularized judgments of the kind that we're talking about here and that of course is what I'm seeking.

There is one other difference between contempts and crimes that I find highly relevant.

Our legal order throughout its range places greater importance upon the effectiveness of court orders than it does upon the effectiveness of criminal statutes.

If a man deliberately violates a statute under the claim that it's unconstitutional should he established the unconstitutionality, he will go free.

But should the same man knowingly violate a court order under the same claim even if he establishes its unconstitutionality, he may be punished.

Our legal order has always placed greater emphasis upon the court order and its sanctity.

That being the case it seems to me desirable that the superior effectiveness of court orders be reserved -- be preserved for some kinds of situations.

Otherwise, monetary sanctions that are available maybe wholly ineffective to prevent massive and egregious violations of court orders in precisely those cases where they're most needed and also to prevent the destruction of rights and property of persons in the community.

When a court order is directed to a large organization with widespread support in the community, it is entirely possible that juries will not convict.

In such situations, there may be hung juries either because of sympathy with the law violators or because of fear of reprisal in that community.

And if a court is limited to imposing only very small fines rather jury trial, the fines are likely to be imperceptible to the organization and the orders will deter little or nothing.

There may be arguments I think for the jury's power to nullify criminal statutes or it maybe that such is the byproduct of our system that can't be helped.

But I don't think nullification by a jury ought to be permitted here, you know, appropriate in the context like this one given the fact as I've mentioned, that is the greater important of court orders, the fact that personal liberty is not at hazard and the safeguards available here that would not be available in the criminal prosecution under a statute.

Plus I think it results that if the Bloom decision is applied according to its rationale, no the jury trial was required in the contempt proceedings here.

And I think that's perhaps all that would be said with respect to this case, but perhaps I should add that what I'm envisaging in applying the Bloom decision according to its rational and according to these factors that must to weighed as they occur or do not occur is that we would enter upon a classical common law development of doctrine in this area, weighing these considerations I've mentioned in various contexts, perhaps identifying other considerations.

Now that I think is not an objection to the Government's position.

I think it's rather its strength because the process I described results in applying the constitution sensitively according to the policies that compete within the constitution in this field and I think that's better than applying a flat rule that sacrifices important interests for nothing more than instant certainty.

Justice Byron R. White: Well, is the part --

Justice Potter Stewart: Mr. Solicitor General would your argument be the same if Mr. Muniz had been sentenced to one year in prison without probation.

I gather it would, wouldn't it?

Mr. Bork: No I think not Mr. Justice Stewart.

I'm talking now, Muniz has not raised the constitutional issue.

Justice Potter Stewart: I know.

Mr. Bork: And we are accepting for this purpose, the distinction between imprisonment and fine.

Justice Potter Stewart: Imprisonment beyond six months at least?

Mr. Bork: That's right.

So that I would not be arguing that no jury trial was required if Mr. Muniz was sentenced to more than six months.

Justice Potter Stewart: You would not --?

Mr. Bork: I would not be arguing that.

Justice William H. Rehnquist: Is part of your argument General Bork based on the proposition that a fine is a less worrisome type of sanction than imprisonment?

Mr. Bork: I think it -- that is part of it.

I don't know that that would be an adequate line of demarcation all by itself because of the possibility of very heavy fines.

Justice William H. Rehnquist: Well why, why is it any good at all as matter of fact when you look at the Seventh Amendment that requires there is a trial of a jury in its civil action where $20.00 or more is involved and compare it with the jury trial provisions in connections with the criminal case.

It seems like the framers thought that the taking money was probably just as serious a sanction as putting somebody in prison?

Mr. Bork: I doubt that that would be reason Mr. Justice Rehnquist for the Seventh Amendment, but in any case we now allow that taking of money in large amounts without jury trial.

Our brief discusses many administrative procedures by which corporations, collectivities like this one are -- immersed very large sums without the possibility of jury trial.

I don't' think that's -- I don't that's unconstitutional and I think our society does have a felt -- does feel that there's a difference between imprisonment and fine.

Justice William H. Rehnquist: Well, what's our society's feeling got to do with the meaning of a constitution?

Mr. Bork: Well it's one way of -- it's one way of asking ourselves how much injury is inflicted upon a person.

Now this Court has said that for historical reasons, it will distinguish between a six-month prison term and a six-month and one day prison term in terms of jury trials.

And I suppose it has thereby drawn a line because a line has to be drawn, but the longer the imprisonment becomes the more suffering it inflicts and the more social disgrace had inflicted because of societies' feeling about them.

And I'm really suggesting to you that there is a distinction in degree in our perceptions, in society's feeling and indeed in the individual suffering when the penalty is a fine rather than imprisonment.

But in any event, I think these other factors I suggest also argue in the same direction.

Justice William J. Brennan: Mr. Solicitor General, I gather none of these factors are arduous, does it?

Mr. Bork: I beg your pardon.

Justice William J. Brennan: Does any -- do these factors singly or in combination suggest unconstitutionality in the statute which required a jury trial?

Mr. Bork: Not a bit, not a bit Mr. Justice Brennan.

But in the absence of a statute, I am suggesting that the constitution -- I don't think there was a statute here that required a jury trial.

Justice William J. Brennan: (Inaudible) was it --

Mr. Bork: No, no, I think --

Justice William J. Brennan: Your emphasis on that had the sound of separation of powers?

Mr. Bork: I did nothing.

Justice William J. Brennan: But there are some things that this being judicial orders and --

Mr. Bork: Or there maybe a occasions Mr. Justice Brennan which I think we need not reach here which have Congress purported it -- deprived the court of any ability to function as a court, such statute might be unconstitutional, but I don't think we're discussing that range of considerations in this case and I trust we will never have to discuss that range of considerations, but it is useful to mention Congress because the evolution I'm discussing need not to be entirely judicial.

It's appropriate that congress have its attention refocused upon this problem and that we have legislative judgments fed into the process as we move towards a resolution of this issue.

Our alternative submission on the constitutional issue is quite fully developed in our brief and I will merely touch upon it.

It is that a $10,000.00 fine imposed upon a large organization like this one is obviously not so substantial to make -- as to make the offense more than petty.

The reliance upon 18 U.S.C 13 about petty offenses, I think is misplaced.

That statute was passed about 1930 with totally different things in mind, was not addressed to contempt and furthermore, I don't think that statute makes it possible to equate six months imprisonment with $500.00 fine particularly in view of the fact it goes on to say or both so that -- we would be left with peculiar logical proposition that you could impose six months plus $500.00 but not six months plus one day or $501.00 separately.

I think realism has to have its claim in this field of constitutional law and it appears that they're at least 35,000 people who pay dues to Local 70 or pay fees to Local 70 and when we look at what that means, it comes out -- this fine comes up about 80 cents per person, per head.

And if the law has to correspond to reality in making distinctions about what is severe and what is petty or serious and petty, that factor I think has to be taken into account indeed I think is dispositive.

I would like now to turn to the argument about the statute because I think there are two issues there and the first one is whether or not there was a distinction after Taft-Hartley between cases where a private employer sought an injunction and sought a contempt.

In cases where the Labor Board did and I think there was.

Norris-LaGuardia ruled the further, the first and Taft-Hartley and Wagner Act to the second and I think there was no jury trial requirement there.

The second issue then is, did the enactment of 18 U.S.C 3692 suddenly wipe out the distinction thus laboriously made and I will not rehearse the entire history of these statutes as they came into effect, but let me say only this.

The evidence that just before 3692 was passed that there was no requirement in the law that a board order like this one, a board petition for an injunction which was violated and followed by criminal contempt like this one, required a jury trial as this.

The Norris-LaGuardia Act of 1932 in itself expressly applied only to cases arising under this Act.

The United Mine Workers case shows that there were cases which did not arise under Norris-LaGuardia.

Furthermore, the Wagner Act of 1935 in Section 10 (h) explicitly made every section of Norris-LaGuardia inapplicable including specifically the jury trial section of Norris-LaGuardia, the court orders obtained the board.

At the end of Section 10 (h), it cites every section of Norris LaGuardia as made inapplicable including Section 111 which is the jury trial provision.

Frankly, there's no doubt that after the Wagner Act, board orders are not governed by -- they're simply not governed by the jury trial requirement of Norris-LaGuardia Act.

Now the Taft-Hartley Act in 47 not only retain 10 (h) which governs 10 (l) as well as 10 (j) --

Justice Byron R. White: Are you (Inaudible) -- does that include a suggestion that at least that Congress was asserting there should be no jury trial in those situations?

Mr. Bork: Yes Mr. Justice White.

I am saying that it is quite plain from the evidence I am summarizing beginning with the arising out of language of Norris-LaGuardia -- arising under this Act going on to the explicit statement in 10 (h) of the Wagner Act that all of the provisions of the Norris-LaGuardia Act including Section 111 don't apply to that section which shows that the jury trial requirement was lifted.

I'm saying in addition that 10 (l) when it was enacted as part of the Taft-Hartley Act speaks of power to enjoin not with understanding any other provision of law, but perhaps more importantly left 10 (h) standing.

And we discussed in our brief the fact that Senator Ball tried to amend Section 10 (l) saying that as presently written, it completely lifted the Norris-LaGuardia jury trial requirement and he would put it back in part, the Ball memo was rejected.

In addition to that, there's been a consistent course of practice and understanding by the board and by all kinds of people including most courts up until quite recently for 25 years which everybody read.

This statutory scheme as protecting against labor injunctions brought by employers, that after was the -- at the evil at which Norris-LaGuardia was aimed and after the labor board came into effect, that evil was no longer so necessary to be guarded against.

Congress laid down the guidelines of what could be done and what could not be done and the labor board was expected to operate fairly within those guidelines, hence, the relaxation of Norris-LaGuardia safeguards when the labor board is involved.

But given those factors, I don't think there can be any doubt that just prior to enactment of 3692, labor board sought injunctions, did not require jury trials for criminal contempt proceedings.

Now, that main arguments petitioners urge is of 3692.

In the year following, Taft-Hartley, right after Congress had made this distinction, obliterated every trace of the distinction and did it without a word of debate in Congress under Taft-Hartley not being exercised.

Rather a word of debate in Congress or comment or even notation that it had been done.

And I think that's simply not credible and until recently for over 25 years, no court thought it was credible and certainly the people who recodified Title 18 to bring Section 11 of the Norris-LaGuardia Act in the Title 18 do not seem to have noticed that they were making any sweeping change in the law because all of the revisers notes go in extensively to noting and explaining changes in substantive law, nothing of the sort is found with respect to 3692.

And I think it's utterly implausible to argue that a major change in the nation's labor policy was made in that way and therefore I think it should extraordinarily plain and indeed compelling language to reach petitioner's result and the language of 3692 does not meet that test.

The language is not so plain that if one could afford to ignore its legal context.

We know it was taken directly from Norris-LaGuardia and the revisers must have thought it entirely natural to refer to the same subject matter in the terms that Norris-LaGuardia employs, that is a case involving or growing out of a labor dispute.

That's Norris-LaGuardia language and that context suggests they thought they were transplanting the clause not suddenly swallowing up distinctions made in the Wagner Act and in the Taft-Hartley Act.

Justice William J. Brennan: (Voice Overlap) the substitution -- the substituted language is much broader though, isn't it?

Mr. Bork: It is.

Justice William J. Brennan: (Voice Overlap) Section 11 initially.

Section 11 was just cases arising under this Act, meaning in Norris-LaGuardia, wasn't it?

Mr. Bork: And they repealed -- my repealed --

Justice William J. Brennan: Yes.

Mr. Bork: For this purpose, they repealed Section 11 and took -- they picked the provision up and put it over in Title 18 and it can no longer be cases arising under this Act.

Justice William J. Brennan: That's right and -- but the substitution arising under the laws of United States governing issuance of injunctions or restraining orders in any case involving or growing out of a labor dispute.

What's the new language of this -- the substituted language for you?

Mr. Bork: But the new language Mr. Justice Brennan does -- is a case involving or growing out of labor dispute which is Norris-LaGuardia language.

Justice William J. Brennan: And you think that's what ties it, limits it (Voice Overlap) --

Mr. Bork: I think it has to.

For one thing, you get a distinction that doesn't more sense if you read the statute the way the petitioner does, petitioners do, that is this.

Not all labor disputes and unfair labor practice are not co-terminus terms.

You can have an unfair labor practice quite clearly without a labor dispute.

The reading here is that in any case in which there's not a labor dispute, but there is an unfair labor practice, you can get an injunction and a trial for criminal contempt without a jury, but if it involves also both the labor dispute, you can't.

I don't think that makes -- that's a difference that doesn't make a great deal of sense.

The reading we give 3692 says that, “You get a jury trial when an employer is trying to get an injunction and try you for contempt, but not when the labor board does and that's a distinction that makes policy sense.”

Now, and the facts, the distinction that the 80th Congress which passed Taft-Hartley made the year before, and it was also the 80th Congress that voted in 3692 which is another reason why it's impossible to believe that the 80th Congress didn't even mention the change they were making.

But in our brief, we point out to the fact that Representative Seller who had been chairman of the committee considering this Title 18, some 10 years later rather heatedly denied that he'd made the jury trial provision applicable to Taft-Hartley in 3692, but I think I should raise one warning signal.

Petitioners' argument proceeds upon a flat, mechanical and rather simplest reading of the language which has context and growth and has meaning.

If that method of reading 3692 were accepted, this Court would then very shortly be faced with the claim that by the same kind of reading of a plain language, no civil contempts required jury trials because this language doesn't distinguish between civil and criminal contempts and if you read it without context, that's what happens.

Furthermore, it would turn out that no matter how small the fine, $1.00 fine requires a jury trial for contempt of the court order if you accept this flat mode of reading of statute which I say is totally foreign to its history and to its context.

So I suggest that the statute should not be read that mechanically and without regard to context or evidence so that major congressional policies are destroyed on no basis than what can be called a rather simplistic semanticism and we ask that the judgment of the Court of Appeals be affirmed.

Chief Justice Warren E. Burger: Do you have anything further Mr. Van Bourg?

Rebuttal of Victor J. Van Bourg

Mr. Victor J. Van Bourg: Yes I do Mr. Chief Justice, just if I can for a moment.

I believe I have a few minutes left.

Chief Justice Warren E. Burger: Yes you do.

Mr. Victor J. Van Bourg: I think that it is inappropriate to state as the Solicitor has stated that if the Court were to adopt the posture taken by the First Circuit in Union Nacional that you would be making a major change in the nation's labor policy.

The nation's labor policy is first enunciated in 1932 in enacting Norris-LaGuardia saying, “Courts, do not interfere with the peaceful processing of labor disputes between labor and management.”

And then in 1935 by enacting the Wagner Act and then in the massive amendments of 1947 in Taft-Hartley, at no time that Congress set a labor policy dealing with the question of jury trials in criminal contempts.

The code of criminal procedure, the Constitution of United States, the question of jury trial was not conceived as part of the National Labor Policy at any time by the Congress of the United States.

It didn't presume that the Wagner Act or Taft-Hartley trenched upon notions of jury trial and I'm troubled by the fact that the Solicitor General is arguing against the concept on the notion of a jury trial on the constitutional side using the arguments that have been traditionally used that juries cannot see these things clearly they made, have sympathy towards the accused or they're maybe frightened of the accused.

The context of this case arises in a metropolitan area of some four million people in the San Francisco Bay area.

I don't think that we have that kind of evidence that the juries would be so blind to the facts and this is precisely the kind of case in which a jury trial is necessary because the judge may have been unable to determine the facts that had to be determined to protect the accused.

Why do I say that?

The Solicitor glosses over the fact.

He says that the petitioner in his argument before this Court, he argues that the petitioners had notice of the injunction and its provisions by service on Local 21.

Local 21 is the typographical union, one of the alleged contempt noirs.

Local 70 is the in the Teamsters Union, is a Teamsters affiliate, totally separate from a typographical union.

But why is that important? Why should that fact even be argued or pointed out?

It's because the whole process of a 10 (l) injunction is started by the filling of an unfair labor practice charge by a person, individual or employer or another labor organization.

After the charge is filed the Regional Director, if he has reasonably concluded that an unfair labor practice may have been committed and determines to issue a complaint before the National Labor Relations Board may seek a petition under Section 10 (l) against the labor organization against whom the charge was filed.

It is that determination subjective and factual determination that is made by the Regional Director that starts the process of petitioning the District Court for an injunction under Section 10 (l).

In this case, there was no unfair labor practice charge filed against Local 70.

There was no unfair labor practice charge filed against James Muniz.

There was no intention to issue a complaint against them at the time of this trial.

There was no 10 (l) injunction sought against Muniz or Local 70.

They were not parties to the charge.

They were not parties to the injunctive proceedings.

They were given no notice of the injunction.

And at the time of the contempt trial and at the time of the adjudication, both civil and criminal, the board still had not made them parties and they had never been served and counsel, for the general counsel when he argued the case conceded that they had never been served with the underlying papers.

And yet, the conditions precedent to the determination that someone is guilty of criminal contempt is the finding of knowledge, notice and intent to deliberately avoid or violate the injunction.

Justice William J. Brennan: But didn't we grant, didn't we not to exclude question one which raises that as (Voice Overlap) --

Mr. Victor J. Van Bourg: Yes, you did.

Justice William J. Brennan: So that's not before us.

Mr. Victor J. Van Bourg: No.

It is not.

I think however, that the arguments on the social policy of the country required that if an argument is made that this is not the kind of a case which would require a jury trial, I submit it is precisely the kind of a case where there are factual questions to be determined, i.e. notice, knowledge, intent to violate and I would like to just conclude by one other item.

It is true that the Labor Board is expected as are all government agencies expected to act fairly in the seeking of injunctions and enforcing them.

If the civil contempt procedure is designed to vindicate the court's order and to show its compliance and the jury question in a civil contempt matter is not before the Court, and if the criminal contempt procedure is designed to punish rather than to vindicate and seek compliance of the court's order, then it makes no sense to give either a restricted constitutional determination of the right to a jury trial which after all is fundamental in this society for talking about societal views nor a restrictive meaning other than the plain meaning of the statute under Section 3692.

Thank you very much Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

United States v. Wilson - Oral Argument

Thu, 23 Aug 2012 18:25:36 +0000

Case:

United States v. Wilson

Media File:

73-1162_19741217-argument.mp3

Related Transcript:

73-1162_19741217-argument

Transcript:

Argument of Gerald P. Norton

Chief Justice Warren E. Burger: We'll hear arguments next in United States against Wilson and Bryan.

Mr. Norton, you may proceed whenever you're ready.

Mr. Gerald P. Norton: Mr. Chief Justice, may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Second Circuit to review the judgment of that Court, reversing the convictions of respondents Wilson and Bryan for criminal contempt of Court in the United States District Court for the Southern District of New York.

Each was provisionally sentenced to serve six months in prison.

The question presented is whether a trial witness who refuses to obey a court order to testify may be held in criminal contempt pursuant to the summary procedures of Rule 42 (a) of the Federal Rules of Criminal Procedure rather than the notice and hearing requirements of Rule 42 (b).

Our primary submission is that the District Courts have the authority and the discretion to use summary contempt proceedings in those circumstances.

We also contend that in any event, in the particular facts of this case, summary contempt procedures were properly used.

The respondents Wilson and Bryan both refused to obey the orders of the District Court that they testify at the trial of one Robert Anderson on charges involving two bank robberies: one of them, the Nanuet Bank and, the other, the Empire Bank.

Prior to the trial, Bryan had been indicted for robbery and assault with dangerous weapon concerning the Nanuet robbery.

Wilson had been similarly indicted concerning the Empire robbery.

Bryan had plead guilty to the assault charge and Wilson to the robbery charges against him and in both cases, the other charges were dismissed.

Now shortly before the Anderson trial was to begin, Bryan had been sentenced by Judge Cooper pursuant to 18 U.S. Code 4208 (b) which provides for a study of the defendants and re-sentencing after a period of three months but which requires initially that the maximum sentence be imposed, in this case, 25 years.

Before the trial began, Judge Lasker, who was assigned the Anderson case, had been told that it would probably take about two-and-a half days.

In the course of the trial, eventually, Bryan was called as a government witness to testify concerning the Nanuet robbery and Wilson was called to testify concerning the Empire robbery.

At this time, both were incarcerated, Bryan on his sentence on the assault conviction, Wilson awaiting sentence on his robbery conviction.

There is a common pattern of events concerning both contempts.

First, all proceedings occurred in open court with the jury absent.

Each one was asked questions by the prosecutor concerning Anderson and the respective robberies beginning with did they know Anderson.

They refused to answer any questions.

The District Court granted them immunity pursuant to 18 U.S. Code 6003 and explained the consequences of that grant of immunity.

He said that he would hold them in contempt if they refused to answer.

Each again, refused.

The district judge directed them to answer and said he would hold them in contempt if they refused.

They again refused and he held them in contempt.

Now, the court had already received arguments for-- from the attorneys for Wilson and Bryan as to their grounds for refusing to testify.

At this time, the court heard additional argument concerning the sentencing of both Wilson and Bryan, what alternatives the court could consider and what their motivations and the reasoning might have been.

Wilson's attorney specifically acknowledged that his motivation was to save a friend.

The Court then gave Wilson and Bryan each the opportunity to be heard, and each declined to speak.

Judge Lasker then sentenced each of them to six months at this time, as he put it, but he made it clear that this was a provisional sentence subject to revision and that he would consider an application for reduction.

He made it consecutive to the sentences they were or would be serving for their other convictions in order to give the sentence reality and said, otherwise, there would be no point to it.

And, he specifically noted in sentencing Bryan, who was the first of the two to be sentenced, that a purpose of the sentence was to persuade Bryan to change his mind and to testify, and he said he would reduce the sentence to nothing if he did.

Later the same day, both sides rested the case against Anderson.

There are certain facts, before I go into the consequences of their refusals that are peculiar to each of the respondents and I'll note them briefly, although we don't believe that they are material to the central question presented.

Though he had notice of the government's intention to call Bryan as a witness, Bryan's original attorney had been unable to attend the Anderson trial.

He did submit a document setting forth some arguments as to why he thought Bryan should not be required to testify.

At the court's request, Wilson's attorney who was in court prepared to address a similar problem concerning Wilson agreed to represent Bryan.

Now, in the course of the proceedings against Bryan, it had been argued that one reason they declined to testify was a fear that it might affect their sentencing.

In Bryan's case, his eventual re-sentencing by Judge Cooper.

Now, this is a baseless fear in this case because, in pleading guilty and in discussing the case with the probation officer in connection with the pre-sentence investigation, they had already been required to make and did make admissions concerning their involvement, although, in the course of that, Wilson declined to identify his accomplice.

In any event, in order to avoid any basis for such a claim of possible effect on sentencing in Wilson' case, Judge Lasker decided that he would try to sentence him then, before he testified.

The court heard the probation officer report on what he would have included in his pre-sentence investigation report which included an admission of Wilson's involvement in the robbery, and also heard a presentation by Wilson's attorney as to Wilson's background, his family problems, and the substance of a report by a doctor in which the doctor referred to Wilson as having an adolescent loyalty to defendant Anderson.

Now, in making this effort to sentence to Wilson the judge stressed that he thought that a delay in Anderson's trial and others scheduled to follow it was undesirable and he noted particularly the fact that Anderson was in jail.

Finally, however, Judge Lasker concluded that he would be -- he'd rather defer the sentencing of Wilson who was after all facing a potential sentence of 20 years on a very serious charge and, at a later time, he sentenced him to treatment under the Youth Corrections Act.

Neither Wilson nor Bryan took advantage of the opportunity to reconsider their refusal and to testify, although it was admittedly a limited opportunity of several hours that day before the Government rested its case.

As a direct result of their disobedience of the court orders that they testify, the administration of justice was seriously obstructed in this case.

Acknowledging that the government's case against Anderson concerning the Nanuet robbery had been substantially weakened by Bryan's refusal to testify, Judge Lasker granted Anderson's motion for judgment of acquittal at the end of the government's case.

That case was irrevocably lost.

As to the Nanu -- as to the Empire robbery, Judge Lasker noted that while Wilson's testimony was not as perhaps essential in the sense that it was prima facie case sufficient to send the case to the jury, it was not cumulative either.

So, the case went to the jury.

The jury disagreed and, as a result of the hung jury, there had to be a second trial with consequent cost and judicial and other resources.

At that second trial, as it turned out, Anderson was convicted concerning the Empire robbery, but one can safely assume that if Wilson had testified at the first trial, we might never have had a second trial.

On appeals by Wilson and Bryan, the Court of Appeals reversed.

It held, first, that neither one of them had any legal basis for refusing to testify once they had been granted immunity.

The Court noted in passing that if they had been simply concerned about the effect of their testimony on sentencing there were other and better remedies to deal with that problem, such as sealing the transcript or asking that they'd be sentenced by a different judge.

Their remedy of refusing to obey the court's order to testify, the Court of Appeals said was wholly improper approach to that problem.

The ground for the reversal of the convictions was that the Court of Appeals concluded that the use of summary procedure of Rule 42 (a) is improper in a case of an orderly refusal of a witness to comply with the court order that they testify even if the witness is represented by counsel and even if the witness has an opportunity to be heard.

The court felt hat this result was compelled by its decision in an earlier case, the Marra case, in which it had said that if it were looking at the question on a clean slate, it would uphold the use of summary procedure in those circumstances, but it felt disabled to do so by what it thought was the teaching of this Court's decision in Harris against the United States, to which I'll return shortly.

As we note in our brief at page 23, other Courts of Appeals have sustained convictions pursuant to Rule 42 (a) in similar circumstances and have disagreed, in effect, with the Second Circuit's analysis in this case.

Now, criminal contempt comprehends a spectrum of offenses in varied types and degrees of seriousness.

It's therefore important to focus precisely on the question here.

This case presents no claim of abuse of the summary contempt to power by a judge embroiled in a heated controversy with a witness or a party or an attorney, nor is there any claim of a right to a jury trial with the sentence in this case, the maximum sentence here being six months, nor do we have here a staged recreation in the presence of the court of a contempt that was actually or originally committed elsewhere.

The question here is simply whether a so-called respectful refusal of a witness to obey a court's order to testify or to give evidence at trial can be punished summarily as a criminal contempt.

Well --

Justice Harry A. Blackmun: Mr. Norton, was there any formal objection to use of a summary procedure?

Mr. Gerald P. Norton: There was not, Mr. Justice Blackmun.

Before the Court had granted immunity to the witnesses, there was a passing comment by Wilson's attorney to the fact that she wanted more time to consider or research the privilege questions which they were then discussing, but that issue evaporated from the case once the Court granted the witnesses' immunity and there was no objection raised to the summary procedure as to either witness.

Now, the question this Court has not previously directly resolved the question in this case, although it did in dictum in the Yates case, approved the procedure that was followed by Judge Lasker here.

Now, 18 U.S. Code 401 authorizes federal courts to punish by imprisonment various contempts, one of which is disobedience of its lawful orders.

It's not disputed here that the refusals of Wilson and Bryan to obey Judge Lasker's order that they testify constitutes criminal contempt punishable under 401.

Incidentally, I should note that although the District Court docket entries recite conviction under 18-402, it's clear that the Court intended and the parties here have understood that it was a conviction under 18-401 and Section 402 is, by its terms, plainly inapplicable.

Now, that a refusal to testify may be punishable under these circumstances, under -- as criminal contempt is more than clear from this Court's decision in Harris and other cases.

It's also clear that disobedience of a Court order to testify is a serious type of contempt.

This Court said in the Shillitani case that the power of a Court to compel a witness to testify is essential to the administration of justice.

In Calandra it noted that every citizen owes his government the basic obligation to testify when so ordered.

Now, the reason that the public has a right to every man's evidence, as the Court said in the Nixon case, is that the integrity of the judicial system depends upon full disclosure so that innocent persons do not suffer, nor the guilty escape.

It's important to note in this regard that the principle we contend for here is inherently neutral in operation.

It does not necessarily favor the prosecution, although in this case it might.

The same question would arise if a defense witness refused to testify when ordered to do so by the Court.

In such circumstances, the consequence of recalcitrant might not be limited to the extended incarceration of a defendant but rather, it could result in the conviction of an innocent person.

Now, the central issue here is whether the summary procedures of Rule 42 (a) of the Federal Rules of Criminal Procedure were properly used in this case.

The case is squarely within the terms of Rule 42 (a), in that, Judge Lasker saw and heard the contemptuous conduct and it occurred in the actual presence of the Court.

Moreover, summary disposition of -- in this case is consistent with the purpose of Rule 42 in distinguishing between those contempts which should be subject to the notice and hearing requirements of Rule 42 (b) and those covered by 42 (a) where summary disposition is appropriate.

The use of the summary contempt power is justified in part by the fact that contemptuous conduct often disrupts ongoing proceedings.

There is therefore a need for a swift adjudication of whether the conduct is justified and lawful and whether it should be punished so as to end the disruption.

The need for dispatch is perhaps or is especially great with the recalcitrant witness, the trial witness in a criminal case, particularly a jury trial, whether it's a prosecution witness or a defense witness.

A defendant has a right to a speedy trial.

The Court's prosecutors have obligations to proceed promptly.

The defendant may well be incarcerated so that any delay in the trial for a cite excursion on the contempt proceedings or, as in this case, for a retrial because of a hung jury puts a penalty on the defendant.

If the defendant is ultimately acquitted, there is no way to recoup that lost liberty.

Also, where a jury trial is involved, a suspension of the proceedings to comply with the notice and hearing requirements of 42 (b) creates additional difficulties and expense.

Now, where the contempt consists of the refusal in the Court's presence to obey in order to give evidence at trial, there is no real need for a formal hearing required by 42 (b).

The primary purpose of which is to gain facts and to resolve factual disputes.

The essential facts are known to the judge.

In many such cases, as here, the reasons for the contempt will also be known by the circumstances leading up to the original refusal to give evidence and the order to testify.

If there are relevant facts which are not known to the judge or other matters that might bear on whether the defendant should -- or the witness should be held in contempt or the question of sentencing, they can be brought to the Court's attention afterwards.

As the Court noted in Groppi, and again in Taylor against Hayes, Courts commonly modify contempt judgments on the basis of subsequent presentations or developments.

In this case, Wilson and Bryan had more than Rule 42 (a) would entitle them to.

They had opportunities to explain their position before they were ordered to testify and before and after they were held in contempt.

They had counsel to advice and assist them and they had the substance of a hearing.

Moreover, since conviction, neither one has made any effort to make any presentation to the District Court of any matter that might have warned them whether they should be held in contempt or whether the provisional six-month sentence was appropriate.

They have not sought any kind of reconsideration or additional hearing or tendered any matters of any kind beyond offering speculations as to what might have happened had there been a fuller hearing than they in fact had.

Indeed, in cases that are indisputably subject to the summary contempt power, there is likely to be a greater basis for speculating that, a hearing might have been useful in such cases.

There has been no prior opportunity as here, to make some explanation of why you're doing what you're doing and in many of those cases, the conduct where the witness or defendant throws a chair or some power is abusive to the Court, there is a greater reason for thinking that there is some background causative factor that deserves some further exploration, yet summary contempt is properly upheld.

And if the mere speculative possibility of some kind of extenuating circumstances were to be accepted as sufficient reason to -- not to use summary contempt, there might never be a case where a Court could safely exercise a power that all concede it has.

Now, the summary imposition of the contempt in this case is consistent with the propositions that the Court should, in the contempt area, use the least power adequate to the needs of the occasion and should resort to criminal contempt only if civil contempt would not be efficacious.

As Judge Lasker knew, civil contempt in this case could be effective only for a brief period.

There were only a matter of hours remaining in the trial.

One could reasonably assume that Wilson and Bryan would be willing to spend those hours to save a friend.

Chief Justice Warren E. Burger: Were they then incarcerated or --

Mr. Gerald P. Norton: Well, they were and that's my next observation that first, in any trial, there's not likely to be a long period of potential coercive confinement, but in this case, in addition, they were both incarcerated already so that any additional incarceration pursuant or of confinement of civil contempt would have been superfluous, which Judge --

Chief Justice Warren E. Burger: There was then just a confinement in a different place.

Mr. Gerald P. Norton: That's true.

As Judge Lasker recognized in making the contempt sentences run consecutive to their sentences on their convictions, this he could not do with civil contempt.

Now, in a case where civil contempt might be appropriate because there's a sufficiently long period of confinement, a grand jury witness would be a good example and the witness is already incarcerated, you might have a different situation because in some such cases, at least if it was a prisoner serving an adult sentence imposed by the same Court, it might be possible for the District Court to suspend the execution of that ongoing sentence for the period of the confinement on civil contempt.

This is a novel approach, recently sustained by the D.C. Circuit in the Liddy case and by the Seventh Circuit in Anglin case.

However, this was not an option that was a feasible one in this case because there were only a couple of hours left in the last day of the trial.

On the other hand, the deferral of contempt proceedings required by 42 (b) is not entirely satisfactory here either.

That approach tends to forgo the opportunity to coerce compliance during the period when it might be meaningful.

It's almost totally punitive.

Now, Judge Lasker recognized here that summary imposition of criminal contempt had a possibility of coercing these people to change their minds and testify.

They had to face the likelihood, not only that if they had not been in jail they would have to serve some time, but if they didn't purge their contempt they would have to serve whatever full sentence was imposed.

Let me turn now to the question whether the District Court's approach in this case was foreclosed by this Court's decision in Harris.

The question presented in Harris was whether a grand jury witness who disobeyed a court order to testify was properly held in criminal contempt pursuant to the summary procedures of 42 (a) where the original refusal occurred in the grand jury room, out of the presence of the Court, and it was recreated in the presence of the Court.

Now, also unlike this case, the witness had unsuccessfully requested an adjournment opportunity to present witnesses.

In a 5-4 decision reversing its earlier decision in the Brown case, this Court held that, although the refusal constituted criminal contempt, it should have been proceeded against under the notice and hearing requirements of Rule 42 (b) since the real contempt was not in the presence of the Court.

In dicta relied upon by respondents in the Court of Appeals, the majority indicated that Rule 42 (a) was reserved for exceptional cases involving misbehavior of various sorts.

Even so, the Court indicated that it was not holding 42 (a) inapplicable to a case like this because it's expressly assumed that 42 (a) may at times apply to testimonial episodes.

And we've addressed in our brief the historical argument as to whether summary contempt power can ever be applied to disobedience of Court orders as distinguished from misbehavior, and I will not address that further here.

Note simply that a witness' refusal to obey a Court order to testify or to give evidence is likely to create, as here, a far greater obstruction of Court proceedings than many of the mis -- types of misbehavior for which summary contempt power is unquestioned.

Now, the contempt in Harris involved a grand jury witness and here we have witnesses at a trial.

There's far a greater need for speedy action at a trial because a grand jury can last 18 months and more and civil contempt may be summarily imposed.

Justice William H. Rehnquist: Mr. Norton, don't you think the Court that decided Harris would probably decide this case against you?

Mr. Gerald P. Norton: I would not think so.

It's not necessarily compelled by Harris.

We don't have here the problem of kind of staging the contempt in the presence of the Court in order to come within the terms of Rule 42 (a).

Justice Potter Stewart: On the other hand, the Court that decided Brown, a fortiori would decide this case in your favor?

Mr. Gerald P. Norton: No question.

Chief Justice Warren E. Burger: Well, the difference in Harris was that you don't have 12 jurors and witnesses and the whole mechanism of a Court standing by waiting.

As you point out, a grand jury --

Mr. Gerald P. Norton: Well, that's one, that's --

Chief Justice Warren E. Burger: -- a grand jury could take the matter up to 30 days or 60 days later.

Mr. Gerald P. Norton: That's right.

Chief Justice Warren E. Burger: But a petite jury would be difficult to hold -- petite jury trial would be difficult to hold in time.

Mr. Gerald P. Norton: That's right, and most trials it'd only take a few days.

The statistics for 1974 in the Administrative Office of the U.S. Court show that 84% of all cases take 3 days or less and even 73% of criminal jury trials take 3 days or less and, indeed, more than 50% of all trials take 1 day or less so that summary -- that interruption or delay of proceedings to comply with Rule 42 (b) would have no coercive possibilities.

In short, we don't that Harris compelled the reversal of the convictions in this case and that, if it is regarded as barring those convictions, it should be limited or overruled if necessary.

I'd like to reserve the balance of my time.

Chief Justice Warren E. Burger: Very well.

Ms. Ginsberg.

Argument of Sheila Ginsberg

Ms Sheila Ginsberg: Mr. Chief Justice, may it please the Court.

In this case, without valid justification therefore, the Government asks this Court to approve a criminal conviction in six months sentence without -- imposed without an opportunity to defend against that imposition.

There are a few facts surrounding the contempt in this case that I would like to emphasize.

First, that the contempt or -- forgive me, the refusal to testify at all times was orderly and respectful.

The witness was called to testify before the same judge, this is respondent Wilson, was called to testify before the same judge who was to eventually sentence him on the underlying bank robbery charge.

Chief Justice Warren E. Burger: Well, on the question of it's being respectful or disrespectful or otherwise, what difference does that make in terms of holding up a trial of a jury case where you have 12 or possibly 14 jurors with alternates standing by and witnesses standing by, approaching the end?

Ms Sheila Ginsberg: Well, Your Honor, I believe the distinction is that the purpose of summary power is not just to move the trial along, but to preserve the authority and the dignity of the Court.

Chief Justice Warren E. Burger: And how do you distinguish the two?

Do you think the two are not linked together?

Ms Sheila Ginsberg: Well, there may be some link but, I might add, that that precipitous summary action may well do more to infringe upon the authority and dignity of the Court than the short adjournment of perhaps 24 hours so that a hearing can be held to allow the accused, condemned, or an opportunity to defend.

I mean, in answer to what I perceive to be Your Honor's concerns during the assistance argument, trials are frequently adjourned for short periods of time without the calamity befalling the system that the Government now suggests.

Adjournments are granted in criminal trials for much less consequential reasons the point is that, in fact, adjudications of criminal contempt are not exempt from procedural due process and in this case, there was no reason, no valid reason for not affording respondent Wilson the opportunity to defend against the charge.

Now, when the respondent refused to testify, he did so on the grounds that even the grant of immunity would not protect him from use of his testimony against him at the time of sentence.

I would like to point out at this juncture that there were other dama -- there were other -- there was other liability within the context of his testimony because had he testified, he would've been subject to cross-examination by defense counsel and it wasn't -- he was just not subject to liability as to the facts of this crime but there were other areas perhaps, and I don't suggest that they definitely exist here but there's a possibility that he would be subjected to greater liability by the cross-examination of defense counsel.

Chief Justice Warren E. Burger: What kind of liability are you referring to, I'm not quite clear?

Ms Sheila Ginsberg: Well, on cross-examination, for example, if defense counsel were to ask Mr. Wilson to impeach his credibility about the commission of other crimes.

Chief Justice Warren E. Burger: Well, how would that injure him?

He could only impeach him with convictions that were a record as a matter of public record, isn't that so?

Ms Sheila Ginsberg: Well, that is so, but whether or not they were known to the probation department is -- without Mr. Wilson's testimony is another -- now, the question that I have to hasten to add that I don't suggest that there were those other crimes committed here, but there is that possibility.

Justice Harry A. Blackmun: Mrs. Ginsberg, I asked government counsel as to whether there was an objection made to the summary procedure here, was there -- do you feel there was sufficient objection made?

Ms Sheila Ginsberg: Yes, Your Honor.

I feel there was, and the Second Circuit specifically held that there was.

Counsel not only objected to, or requested rather, a continuance to enable time to research the legal issue.

She specifically, and I believe it's at page 5 of the appendix, specifically objected to the hasty determination of this issue which subjected respondent Wilson to heavy criminal penalties.

Justice Harry A. Blackmun: Let me ask you another question, now that I have you interrupted.

Are you here -- are you bottoming your position in the case on due process on a constitutional ground or on the supervisory power of this Court?

Ms Sheila Ginsberg: Well, Your Honor, I argue of course that that -- there is a due process right to a hearing and I would also rely on the supervisory powers of the Court to preclude from the ambit of Rule 42 (a), an orderly respectful refusal to testify.

Justice Harry A. Blackmun: Now, this is a federal case --

Yes.

Justice Harry A. Blackmun: -- and the next one might be a state case and our supervisory power might not exist in a state case.

So, hence, I was wondering whether you were reaching for constitutional grounds.

Ms Sheila Ginsberg: Well, as I said, I've --

Justice Byron R. White: Don't you think Harris is just a construction of a rule?

Ms Sheila Ginsberg: Well --

Justice Byron R. White: That's all you need, isn't it?

Ms Sheila Ginsberg: Yes, that's all that I need.

Yes, sir.[Attempt to Laughter]

Justice Harry A. Blackmun: But it isn't at all what the next case needs coming up from a state's side?

Ms Sheila Ginsberg: No, that's true.

That is true.

Justice Harry A. Blackmun: I'm just looking ahead to our further agony.[Attempt to Laughter]

Ms Sheila Ginsberg: In any case, Judge Lasker, recognizing the viability of the respondent's claims, attempted to sentence him before requiring his testimony.

However, after hearing the probation officer and defense counsel, the judge concluded that he did not have sufficient information, information particularly of a psychiatric nature, to adequately sentence the respondent on the bank robbery.

He then determined that respondent's Fifth Amendment rights did not extend to protect him from use of his testimony on -- at the time of sentence for the bank robbery and he ordered respondents to testify.

When he refused, he immediately held them in contempt and sentenced him to six months in prison.

We contend clearly that this was error.

The adjudication of criminal contempt is not exempt from due process considerations of notice and a hearing.

In Harris, this Court specifically held that Rule 42 (b) and the notice and hearing provision therein provided the general or the normal procedure for dealing with contempts in the federal regime.

Harris went on to say that this would give the accused condemner an opportunity to present the legal defenses to the charge of contempt and, also, to present facts in mitigation of the charge or the penalty.

Now, in this case, had counsel been given that opportunity, there was much that she could've done by way of defense for Wilson.

In the first instance, as I just noted, there was some indication in the record of psychiatric problems.

Now, the Government tries to dismiss this as of little consequence, but the fact remains that Judge Lasker was convinced that there was some need for psychiatric treatment and he specifically indicated his intent to incorporate that psychiatric treatment within the sentence for the bank robbery.

Clearly, psychiatric problems are relevant to determining Wilson's responsibility for refusing to testify and if not that far, they certainly arose until mitigation of the sentence.

Moreover, there was a new --

Justice William H. Rehnquist: Ms. Ginsberg, did this contempt require mens rea?

Ms Sheila Ginsberg: I believe it does, Your Honor.

Justice William H. Rehnquist: Do you have authority for that proposition?

Ms Sheila Ginsberg: I believe there is a per curium on decision of this Court.

The name of the case however, escapes me.

I can submit it at a later date.

Justice Potter Stewart: Well, there is a per curium involving a contempt in a federal court and maybe the case you're thinking about, long polysyllabic name, in which the -- there was a lot of very gross conspicuous misconduct by one of the defendants in the case.

Then it was suggested that he may -- might have been insane, might not have been competent and this Court remanded to canvas that issue which would suggest that it does -- that the contempt does require mens rea because for only the objective conduct, then I suppose an insane person could've been equally guilty of contempt but if it requires a -- but if only a competent person could be found in contempt which was the implicit holding in that case, then I would suppose it would -- the answer would be it requires mens rea.

Chief Justice Warren E. Burger: Aren't these all matters that the Court could take into account at a subsequent point?

Ms Sheila Ginsberg: No, Your Honor.

I don't think that they are.

I don't think that a --

Chief Justice Warren E. Burger: Aren't you aware that a vast majority of contempt citations, penalties are reduced after their original imposition?

Ms Sheila Ginsberg: Well, that may well be, Your Honor, but I think that, as a general principle of law and as it applies in this case, a Rule 35 motion is insufficient to compensate for the deficiencies of this procedure.

Firstly, a Rule 35 motion does not go to the imposition of the criminal conviction and secondly, I think that what that procedure countenance is, is the imposition of a final sentence based on inadequate information.

It places the respondent in a position of coming into Court and convincing the judge that his initial decision was incorrect.

Chief Justice Warren E. Burger: Well, I could understand your position about his possible mental condition if he had engaged in disruptive conduct as in the case that Mr. Justice Stewart referred to.

Here, he was casting his refusal on strictly legal grounds, was he not and there was no disruption of the courtroom?

Ms Sheila Ginsberg: Oh!

There clearly was no disruption of the courtroom, but the --

Chief Justice Warren E. Burger: No misconduct of any kind.

Ms Sheila Ginsberg: None.

No misbehavior.

Chief Justice Warren E. Burger: Except the refusal in itself.

Ms Sheila Ginsberg: But, clearly, there are levels of or brands of incompetence which go the witness' inability to comprehend the obligation to testify.

It would seem -- and, in fact, the per curium that I was thinking of, if my memory serves me correctly, deals with a refusal to testify or a testimony before a grand jury at any case.

It would seem to me that there are certain varieties of incompetence that would certainly go to that.

There were other facts here which clearly counsel could've presented at a hearing had she been given the opportunity.

First of all, there was a confusion as to the extent of Wilson's Fifth Amendment privilege, how far it would protect him.

Judge Lasker and the prosecutor were both labeling under -- laboring under the misconception that his Fifth Amendment privilege did not extend to the sentence.

Judge Lasker believed that there was no way to protect Wilson from the sentencing -- from having a sentencing judge use his testimony and, in fact, he didn't have the right to protect the sentencing judge from doing that.

The Second Circuit, in fact, in its opinion set forth the procedure whereby Wilson could've been protected and had counsel been given the opportunity she requested of a continuance, it's entirely possible that she would've come up with this procedure and thereby obviated the whole need for the hearing.

Justice Potter Stewart: Could that procedure -- is that a statutory procedure or one worked out on the Second Circuit?

Ms Sheila Ginsberg: I believe it was worked out in the Second Circuit, but not just on this appeal.

They rely, in their opinion, on United States against Goldberg which was the case the prosecutor handed up to the judge during this hearing, but everything was done with such haste and with all due respect to Judge Lasker, in such a cursory fashion that it was never thought -- the procedure was never thought through and nobody ever realized or at least articulated at the hearing that that Wilson could be protected by testifying, having the record sealed and then having his sentence transferred to another judge.

Justice Potter Stewart: And that protection is not against self-incrimination, but against reprisals in the penitentiary and so on, isn't it?

Ms Sheila Ginsberg: No, Your Honor.

It's a Fifth Amendment protection.

Justice Potter Stewart: Well, I'm talking about the protection procedure that's been worked out?

Ms Sheila Ginsberg: Well, no.

It's to ensure protection or to ensure that the sentencing judge does not use a substance of the testimony to increase the underlying sentence in this case for the bank robbery.

Chief Justice Warren E. Burger: To be sure you're going to get a neutral judgment in the sentencing --

Ms Sheila Ginsberg: Exactly.

Chief Justice Warren E. Burger: -- isn't that your -- the theory of it?

Ms Sheila Ginsberg: Exactly so.

Justice Potter Stewart: And the sealed testimony also serves the same function, does it?

Ms Sheila Ginsberg: Yes.

Justice Potter Stewart: The sealing of the testimony?

Ms Sheila Ginsberg: Exactly.

I would like to quickly get to the Government's justification for the summary proceedings.

They claim that, despite -- well, despite the language of Harris which makes it very clear that summary proceedings under Rule 42 (a) are only to be used in exceptional circumstances and Harris defined those exceptional circumstances as acts of -- in Court acts of misbehavior which threatened the judge or obstruct the proceeding or the courtroom, disrupt the courtroom.

The Government argues that the justification in this case was to compel testimony.

Now, first of all, I must point out that due the record is so -- if it is clear about anything, it is clear about the fact that Judge Lasker did not intend to coerce Mr. Wilson's testimony by sentencing him for criminal contempt.

The judge --

Chief Justice Warren E. Burger: Well, he was punishing him for his contumacious refusal to answer, wasn't he?

Ms Sheila Ginsberg: That's correct, but it was not intended to coerce the testimony, this punishment.

The judge stayed the sentence pending appeal and he told, specifically told Mr. Wilson that there was no need for him to concern himself about the sentence at this time.

Chief Justice Warren E. Burger: Well, isn't part of it the deterrence of that kind of conduct with respect to other witnesses in other cases?

Ms Sheila Ginsberg: Well, if in fact that is one of the purposes, it doesn't seem as though that purpose would be thwarted by notice of 24 hours and a short hearing.

I'd also like to say that the use of criminal contempt to coerce testimony is violative of the whole concept of criminal contempt.

Criminal contempt, as Your Honor points out, is to punish not to coerce.

It's a civil contempt sanction.

Chief Justice Warren E. Burger: There, your taking issue with Rule 42 (a), are you?

Ms Sheila Ginsberg: No, sir.

No, I'm not.

I'm just saying that criminal contempt should not -- was not intended as -- to have as its primary purpose coercion, but punishment.

Chief Justice Warren E. Burger: Thank you.

Mr. Martin.

Argument of John S. Martin, Jr.

Mr. John S. Martin, Jr.: Mr. Chief Justice and may it please the Court.

I think that the is suposed in this case is one that is fundamental to our system of justice.

That is, what rights, procedural rights do we give a citizen of this country before we sentence him to serve six months in jail?

I think that the issue is muddied somewhat by the procedural context in which this case arises.

And I think it drives to some of the questions that Justice Blackmun raised as to whether this is a due process requirement or rather a requirement of Rule 42.

It seems to me that the petition -- the respondents here were afforded a hearing, that was not a Rule 42 (a) hearing, but at the same time they were not given a 42 (b) hearing.

And I would suggest, very respectfully that in determining whether or not summary contempt -- the summary contempt power may be used in the case of a witness who respectfully refuses to testify.

We have to look at the summary contempt power as that is contemplated in ex parte Terry.

Summary contempt power authorizes the district judge or the trial judge to impose a sentence of imprisonment without affording the respondent the right to counsel or the right to say anything in his own defense.

And it seems to me that the consistent teaching of this Court is that that type of deviation from what we normally consider the due process rights of a criminal defendant can only justified by the most extraordinary need to protect the dignity of the Court.

And it seems to me that in this case that great need to protect the dignity of the Court is not present to justify a departure from the more traditional procedures which due process encompasses.

It seems to me, we have a case where these two men, for different reasons perhaps and in different circumstances, refused to testify.

I think one of the compelling facts concerning the client I represent, Mr. Bryan, in this procedure, is that he was forced to go forward in the absence of his own counsel.

Counsel was simply assigned to him on that morning.

That may not seem like a terribly significant fact, but it seems to me, my experience in representing assigned counsel -- representing assigned defendant is that the -- it takes some time for a lawyer assigned by the Court to develop a rapport with his client.

The rapport that comes naturally if a man has sought you out to be his counsel does not exist when you are suddenly thrust upon the defendant and it seems to me that fact here takes away the ability of the counsel to on the spur of the moment really meaningfully advice the client of his rights.

And it seems to me, the issue here is whether or not these respondents should have had the right to counsel before being sentenced to the maximum sentence possible in these circumstances, a sentence of more than six months could not have been imposed.

Chief Justice Warren E. Burger: Well, one of the consequences of this conduct was quite serious, was it not, in terms of the results of one of the trials?

Mr. John S. Martin, Jr.: It certainly was, Mr. Chief Justice, and I'm suggesting is not that the punishment was not proper and, indeed, I think an argument could be made by the Government at some future time that in a situation like this, it might be appropriate to impanel a jury so that a more severe sentence could be imposed, but that has to do with the punishment fitting the crime.

What I'm suggesting, Mr. Chief Justice, is that before that much of a penalty, the maximum penalty available is imposed that we have to afford a respondent in a contempt proceeding certain minimal due process guarantees.

A meaningful right to counsel and I suggest that the appointment of counsel that day was not a meaningful right to counsel as far as my client was concerned.

I don't think this Court, if I had not shown up this morning, would have assigned another lawyer to appear and argue this afternoon.

I think you would say that the lawyer has to have a right to prepare to meaningfully represent his client.

Chief Justice Warren E. Burger: More likely, the alternative is that we would have had your case submitted on briefs.

Mr. John S. Martin, Jr.: Also a possibility, obviously, Your Honor.

But, I do think that in the situation here, that is a for less severe effect on my client in putting him in jail for six months.

Justice Harry A. Blackmun: How much notice would've been sufficient do you think in this case, 24 hours?

Mr. John S. Martin, Jr.: I would think that, certainly a 24-hour period might have been reasonable.

I think that you have here a situation, also, I disagree with the Government that this procedure is the most effective way as they suggest, is the most effective way to get the -- a testimony that you want.

It seems to me, once the sentence is imposed -- well, that's where I've got to serve and I deal with it.

A witness who is confronted with a situation where he is told that, “I am sentencing you, I'm ordering the marshal to take you into custody and hold you in civil contempt.

I'm going to set this matter down for a hearing I have to determine if you should be held in criminal contempt and a sentence to be imposed will be fixed at that time.”

And a witness in that situation is more likely to come back the following day and say, “I've thought about it and I will testify” than one who has had the final sentence imposed on him.

So that, I don't think that the remedy that the government suggest is the most effective way to bring about the testimony that they seek to compel here, but it seems to me that the consistent teaching of this Court has been that summary contempt power is reserved for the very extreme case, and it is our submission here that this is not that extreme a case.

The -- there was no disrespect -- manifest for the Court that it called for the Court to vindicate its authority right then without waiting for a moment so that people would know that the Court's authority exists.

This is not the situation such as existed in Terry where there was a violent outburst in the courtroom and the Court there said, “Fine.”

There, the dignity of the Court is affronted and it must be able to control the procedures in its own courtroom, and that was I think the rationale set forth in Cooke versus United States lays out those distinctions quite clearly.

Justice Potter Stewart: The difficulty is Mr. Martin for me at least, one difficulty, that we're dealing here really with the specific language of the Federal Rules of Criminal Procedure, are we not, unless, you're suggesting that there's something constitutionally deficient about the language of 42 (a)?

Mr. John S. Martin, Jr.: I am.

I am suggesting, Mr. Justice Stewart, that it is constitutionally deficient.

It is a violation of due process to use summary contempt power in the situation before the Court.

Justice Potter Stewart: I see.

You --

Mr. John S. Martin, Jr.: What I'm suggesting is merely --

Justice Potter Stewart: Does this mean that you do concede that the language of 42 (a) would permit summary contempt power in these circumstances of this case?

Mr. John S. Martin, Jr.: I do, and this is really what I was addressing myself to at the outset.

The fact that, really, you have -- the procedure used here was not 42 (a), but it was not 42 (b).

It was something in the middle and I think it was something in the middle because the district judge recognized that there were certain minimal due process rights that should attach before you send a man to jail for six months.

Chief Justice Warren E. Burger: Well, the judge was well-aware, was he not?

The trial was virtually coming to a close very shortly?

Mr. John S. Martin, Jr.: I think that that is true.

This was clearly going to be a very short trial and he was aware of that but as Ms. Ginsberg pointed out, there's nothing in the Court's action.

Indeed, the Court's action totally contradicts the fact that he was seeking, by his order, to compel testimony right then and there because he stayed the effectiveness.

He said, “Listen, I will consider this again after the Appellate Courts have passed on it.”

So there's no element here of using this criminal contempt power to force right then and there the witness to change his mind about the testimony.

Chief Justice Warren E. Burger: Well, your submission requires you, I take it, to either say that 42 (a) is constitutionally flawed or else this is not a 42 (a) case?

Mr. John S. Martin, Jr.: Well, I think it requires the Court to say that 42 (a) is constitutionally flawed in the circumstances of this case.

I think Terry indicates that, obviously, there are situations where you can impose contempt without giving the respondent any right to reply.

But I think what the Court has consistently held, from the time Terry was decided to date is that to justify that radical departure from due process, you need very strong and compelling reasons showing that the demoralization of the Court's authority would occur.

And, I think what I'm really submitting is that our system is just -- of justice is not so fragile that it would collapse.

If the --

Chief Justice Warren E. Burger: Well, I go back to the --

Mr. John S. Martin, Jr.: People like --

Chief Justice Warren E. Burger: I go back to the consequences on the other trial.

They were rather --

Mr. John S. Martin, Jr.: I think it is true that it disrupts the trial.

It has consequences, but those consequences followed even though criminal contempt was imposed here.

Chief Justice Warren E. Burger: I'm speaking also of the suggestion of the Solicitor General that there was a serious miscarriage of justice by the directed acquittal.

It was directed really --

Mr. John S. Martin, Jr.: That's right.

They dismissed the three counts involving the bank robbery in which my client was involved, and I don't mean to denigrate the seriousness of that and, as I said before, I might, if I were back in the Solicitor General's Office, be prepared to argue that you can impanel a jury and impose a substantial sentence more than was imposed here.

All I'm suggesting, Mr. Chief Justice, is that when you impose a sentence as much as six months on an individual that you have to afford him some basic due process rights, a right to some notice and an opportunity to present, as the Court said in Cooke, evidence in either exculpation or mitigation.

Chief Justice Warren E. Burger: What was the sentence imposed on the one defendant who was found guilty in the -- was it a new trial, separate?

Mr. John S. Martin, Jr.: In the Anderson?

Chief Justice Warren E. Burger: Yeah.

Mr. John S. Martin, Jr.: Ultimate sentence, I must say, I just don't know, Mr. Chief Justice.

Chief Justice Warren E. Burger: To the bank robbery so it can be assumed --

Mr. John S. Martin, Jr.: Oh!

It's a serious --

Chief Justice Warren E. Burger: It can be assumed that it's a very substantial sentence.

Mr. John S. Martin, Jr.: My client was sentenced to 10 years for the bank robbery.

It's a substantial crime and, as I say, I don't denigrate the seriousness of what was done here.

I'm just simply suggesting that, given the substantial sentence, six months is a substantial sentence.

I mean, I have seen men cry where they've been sentenced to three months in jail.

Chief Justice Warren E. Burger: For conduct that leads to the acquittal of a man guilty, apparently, of a 10-year offense?

Mr. John S. Martin, Jr.: No, sir.

I'm not saying it is out of order with the magnitude of the disruption, but all I'm saying is that before you impose a sentence of that magnitude you should give certain minimal due process rights to allow the respondent to have an opportunity to present to the Court any factors in mitigation or in exculpation.

Having -- give -- have that right, I'm not saying it would've been inappropriate to sentence him to six months.

Chief Justice Warren E. Burger: Your alternative argument was that it should -- they should give him, or perhaps it was your colleague's argument, give him time to think it over until the next day and he might change his mind.

Mr. John S. Martin, Jr.: Well, I think that that --

Chief Justice Warren E. Burger: But, does that mean that every time a court is confronted with a recalcitrant witness you stop all the proceedings and give him 24 hours to think it over and see if he's going to answer questions?

Mr. John S. Martin, Jr.: Well, I think in most instances, that probably is not going to be necessary.

I was -- Mr. Norton's statistics certainly are not in conformity with my experience in the Southern District of New York where I practice primarily.

It seems to me that in most cases, you're going to be able to proceed with other witnesses or other aspects of the trial, but adjournments of 24 hours are not unusual.

If we have a wit -- a juror with the flu, we adjourn cases for 24 hours.

So that, I don't -- certainly, it's a disruption, but six months --

Justice Byron R. White: Well, what did he need a lawyer for?

Mr. John S. Martin, Jr.: What did he need a lawyer for?

I think he needed a lawyer, one, to advice him of the serious nature of the charges, to determine, to present to the Court, particularly in mitigation here, Mr. Justice White, factors concerning -- defending himself but also factors that is to, perhaps even, to introduce evidence to show that the refusal to testify was not one that was simply based on a too great a loyalty to a friend, but a real belief that the constitutional grant of immunity was not co-extensive with the privilege.

It seems to me, if a man refuses to answer because he really believes that the District Court's rule is in error, that that is a relevant factor to be considered in imposing sentence.

It seems to me, a man who just feels that the Court is wrong as to his constitutional rights and he wants to protect them doesn't deserve the maximum sentence possible.

Justice Potter Stewart: Your point is that the constitutional privilege against compulsory self-incrimination has got subtleties and nuisances that a person can't decide upon by himself but needs a lawyer to help him decide, is that it?

Mr. John S. Martin, Jr.: That's correct, and also that whether not to go forward and testify is a decision in those circumstances where -- this is a point I was trying to make before that the witness has to have some faith in the lawyer.

And I think that's one of the things that bothers me here is that my client was asked to make all these decisions and go forward with a brand new lawyer assigned to him that morning.

Thank you.

Chief Justice Warren E. Burger: Thank you.

You have about five minutes left if you have anything further.

Rebuttal of Gerald P. Norton

Mr. Gerald P. Norton: Thank you.

The suggestion that there was no intention here to give Mr. Bryan and Mr. Wilson an opportunity to purge their contempt I think is rebutted by the statement of Judge Lasker at page 32 (a) -- 32 of the appendix where he specifically referred to imposing a sentence for a period of time subject to elimination or reduction of it to nothing should Mr. Bryan cared to testify and answer the questions.

That was plainly his intention, everyone understood it.

They chose not to do so.

As for the possibility --

Justice Potter Stewart: Where were you reading from and what is your point?

Mr. Gerald P. Norton: Page 32.

Justice Potter Stewart: Yes, of the appendix.

Mr. Gerald P. Norton: Of the appendix, the middle of it, the middle of the page.

Justice Potter Stewart: Beginning, “My suggestion is that I impose a sentence…”?

Mr. Gerald P. Norton: Yes.

And other points he said he was making this provisional sentence in both cases subject to reduction or reconsideration.

Now, the suggestion that Mr. Wilson's refusal was based on some legal issue as to the effectiveness of the immunity to protect him, I think, is also rebutted by the fact that when counsel said to consider the motivation for what Mr. Wilson has done, Judge Lasker said “to save a friend,” counsel “yes.”

It is very clear what was happening here.

This was not someone standing on some legal principle to preserve the issue for appeal.

This was someone who simply didn't want to talk to save a friend.

That's all there was to it.

Justice Thurgood Marshall: It wasn't really on what immunity he was getting, was it?

Mr. Gerald P. Norton: It was.

Judge Lasker explained that, explained that the consequences of the immunity were the -- what he said could not be used against him and that he had to answer question put to him.

Justice Thurgood Marshall: And did he say that it couldn't be used by the sentencing judge?

Mr. Gerald P. Norton: I don't believe he specifically said that, but --

Justice Thurgood Marshall: Well, no, but there was something that was left out that this man didn't understand, am I right?

Mr. Gerald P. Norton: In this case, Your Honor, both Wilson and Bryan --

Justice Thurgood Marshall: Are you?

Mr. Gerald P. Norton: -- had admitted their complicity in the offense.

There's never been any suggestion what would've happened --

Justice Thurgood Marshall: I'm not talking about --

Mr. Gerald P. Norton: Here if they testified.

It could've been used as --

Justice Thurgood Marshall: I'm talking about the grant of immunity.

Could he possibly understand it without getting advice or thinking it over?

Mr. Gerald P. Norton: Mr. Wilson --

Justice Thurgood Marshall: It wasn't in there?

Mr. Gerald P. Norton: Mr. Wilson had his attorney present.

Justice Thurgood Marshall: Afforded an attorney.

Mr. Gerald P. Norton: Mr. Bryan was represented by Mr. Wilson's attorney.

Justice Thurgood Marshall: Yes.

Wait a minute.

He had a -- he had somebody else's lawyer.

Mr. Gerald P. Norton: Well--

Justice Thurgood Marshall: Yeah.

That's what he had.

Mr. Gerald P. Norton: That's right.

Justice Thurgood Marshall: He had somebody else's lawyer.

Mr. Gerald P. Norton: Someone else who's client had the identical problem and was prepared to address it that day.

Justice Thurgood Marshall: And witnessed the fact that they're so identical that one of them said that that lawyer couldn't represent him in this Court.

That's how identical they are.

Until this day, they're not identical.

Mr. Gerald P. Norton: Well, I can't speak to the (Voice Overlap) --

Justice Thurgood Marshall: Well, it's what the record shows in this Court.

Mr. Gerald P. Norton: Well, they have different factual situations and they prefer to make different arguments.

Justice Thurgood Marshall: That's right.

So they're not identical.

Mr. Gerald P. Norton: Well, they were identical in as far as the question of whether they could be held in contempt when they refused to obey a Court order, they were in the identical situation.

Justice Thurgood Marshall: I am not -- were they in identical situation as to the immunity?

Did the fact that one and his lawyer understood immunity mean that the other one understood the full parameters of the immunity?

Mr. Gerald P. Norton: If Mr. Bryan's refusal to testify was based on some misapprehension as to the scope of the immunity, then that is a fact that could've been presented to Judge Lasker at any time in the 20 months or so since these convictions (Voice Overlap) --

Justice Thurgood Marshall: Well, I will assume that anybody convicted for murder can bring habeas corpus 50 years later.

Mr. Gerald P. Norton: Well, contempt --

Justice Thurgood Marshall: But that doesn't make the original conviction legal?

Mr. Gerald P. Norton: Contempt is an unusual creature in that regard and as --

Justice Thurgood Marshall: It is.

Mr. Gerald P. Norton: -- the Chief Justice indicated, criminal contempts are frequently revised after further presentations.

On the question of notice, counsel seemed to assume that one day would be sufficient.

Now, whether that's so or not is an open question.

Some Courts of Appeals have said that five-day's notice is required where notice is necessary.

A five-day interruption of the trial would be something very different indeed, in that it would be longer than the trial itself took.

The question of whether a sentence under 42 (a) is -- has any coercive effect I think it's clear that summary exercise of the contempt power is inherently coercive.

That is why the Courts permitted to exercise it.

It is to invest immediately some conduct which obstructs or casts in a bad light the administration of justice.

If the only purpose were punishment, 42 (b) would be sufficient.

It is the need to deal immediately that justifies the summary dispositions.

And finally, on the mens rea question, I note simply that, first, 401 does not require that the action be willful as 402 does and that, in this case, the defendant had entered his guilty plea with no suggestion that he was not competent to stand trial.

The difficulties in sentencing a youthful offender on a 20-year maximum burglary count are very different indeed from determining whether he has legitimately refused to answer a question.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Thank you.

The case is submitted.

Mr. Martin, you appeared by appointment of the Court and on behalf of the Court, I want to thank you for your assistance to us and of course, your assistance to your client.

Thank you.

Featured:

Maness v. Meyers - Oral Argument

Thu, 23 Aug 2012 18:27:11 +0000

Case:

Maness v. Meyers

Media File:

73-689_19741022-argument.mp3

Related Transcript:

73-689_19741022-argument

Transcript:

Argument of William F. Walsh

Chief Justice Warren E. Burger: We'll hear arguments next in number 73-689, Maness against Meyers.

Mr. William F. Walsh: Mr. Chief Justice Burger.

May it please the Court.

This case involves a $500 fine from a Texas District Court and, in that context, it is obviously not an important case and that is obviously not why this Court granted certiorari.

The importance of this case is that it involves the very independence of the American Bar to give free untrammeled legal advice to a client who has the right, should he choose to do so, to follow it or disregard it.

Now, I think perhaps I should make it clear.

I think it's been made clear in the briefs and I know the Court has seen them.

There is no allegation or suggestion or suspicion that Mr. Maness, who is a member of the Bar of this Court and of the United States Court of Appeals for the Fifth Circuit and, of course, the Texas Supreme Court and so on, was in any way contumacious in any personal sense to the Trial Court.

Actually, there were three lawyers involved in this case, a Mr. Friedman who is unfortunately now deceased and a Mr. Maley who may presently be in the courtroom.

I don't know whether he is, but three lawyers gave sincere legal advice that this particular client did not have to produce certain documents which, the state contended, were incriminatory.

And, it is simply a case of a lawyer being punished for giving advice on a federal constitutional right, and that's what this case is all about.

Now, we have had a tradition in this country, since certainly Adams represented the British Soldiers in the Boston Massacre, of lawyers at least being allowed to represent and advice their clients and that tradition is about to be destroyed if this contempt citation stands up, and that is the importance of the case.

Fortunately, it has-- had already been decided once.

I think perhaps the value of my presentation to you is perhaps in discussing the facts rather than the law because the law has been completely discussed in our briefs.

As a matter of fact, the case has already been decided by the United States District Court.

If you will examine appendix C in our brief on the merits, beginning at page 74, you will find the opinion of Judge Roberts in Austin dealing with Mr. Maley who was co-counsel in the case and it's a white horse situation.

There's no difference between the cases.

It simply was a choice of remedies.

Mr. Maley chose to go the habeas corpus route through the--

Justice Harry A. Blackmun: Has Mr. Maness chosen to go that route?

Mr. William F. Walsh: No, Mr. Maness chose to come to the Supreme Court because he felt that it was important enough that this Court decide it.

It so happens, Your Honor, that both remedies are available.

You could go the habeas corpus route or the certiorari route.

And, it was Mr. Maness' feeling, very strongly, that the case is important enough to be decided by this Court and I might--Could he go to Judge Roberts now?

Mr. William F. Walsh: Sir?

Justice Harry A. Blackmun: Could he go to Judge Roberts now?

Mr. William F. Walsh: Well, I don't know that he could, having come here, but Judge Roberts has decided Mr. Maley's case and decided it in what I think is a simple lucid short opinion that is obvious that a lawyer has a right to tell someone that, in his opinion, you have a right to exercise a constitutional right.

Justice Harry A. Blackmun: Is there an appeal pending from Judge Roberts' decision?

Mr. William F. Walsh: Yes, Your Honor.

It's in the Fifth Circuit.

Justice Harry A. Blackmun: Then we held--

Mr. William F. Walsh: And the Fifth Circuit is holding it in the bench pending this Court's decision of Mr. Maness' case.

Justice William H. Rehnquist: Had this been a criminal right to counsel case, I suppose the right of the lawyer to express his views on a constitutional right could be based on the provision of the constitution that support the right of counsel but, in a civil proceeding, what is the precise basis with that?

Mr. William F. Walsh: Your Honor, you understand there was a criminal prosecution pending.

Justice William H. Rehnquist: Yes, but this was--

Mr. William F. Walsh: Separately from this.

Justice William H. Rehnquist: This was a civil proceeding, was it not?

Mr. William F. Walsh: But had the evidence been made available in the civil proceeding, it obviously would've been available in the criminal proceeding.

Justice William H. Rehnquist: Well, do you contend that the defendant in the civil proceeding had a consti-- a federal constitutional right to counsel?

Mr. William F. Walsh: Well, Your Honor, he had a constitutional right to counsel.

Yes, I would contend that.

Justice William H. Rehnquist: Well, would you--

Mr. William F. Walsh: I think a citizen in any case has a constitutional right, if he's employed counsel, to have a lawyer working for him.

But, you must remember that there was pending a criminal case in the State Courts.

Justice William H. Rehnquist: Well--

Mr. William F. Walsh: And that the lawyer's focus was as much concerned with that pending criminal case as it was with the civil case which became the genesis of this action.

Justice William H. Rehnquist: But this was a civil proceeding, wasn't it?

Mr. William F. Walsh: This was a civil proceeding alleging the commission of a criminal offense and, I might add this, at this particular day, according to my latest information from granted certiorari Law Week and so on.

This Court has before it, either having granted certiorari or applications for certiorari, some-26 cases involving pornography and obscenity, and I think for a lawyer in the middle of a trial when this Court itself has had considerable difficulties through the years in determining the limits and bound of what is right and what is proper, with this Court having some-26 cases before it right now, for a lawyer working in a Texas town to do anything except suggest to a client that he ought to exercise his rights against self-incrimination I think would probably be negligence.

Now, I-- we have briefed it in some detail the merits of the actual defense of McKelva-- I mean, the merits of his refusal to produce the information called for by the subpoenee and by the Court order.

And, the only reason we've done that, as a matter of fact, my client who is a citizen-member of this Bar, we've had some disagreements about the matter but the only reason we've done it is simply to assure this Court that the advice is given in good faith that it wasn't just an effort to avoid legal process or something of that sort.

Chief Justice Warren E. Burger: There are cases, are there not? There'd been a number of them-- of witnesses in a civil action, either parties or independent witnesses, refusing on Fifth Amendment grounds to respond to questions.

Mr. William F. Walsh: Your Honor, the simple remedy for that and the remedy that was presented by this case and really becomes the funny feature of this case is that, of course, the state district judge has the right.

Mr. McKelva having received his advice from his three lawyers, Mr. McKelva had the right to disregard the Court's order and, thereby, be put in jail for contempt.

And then, it could've been tested by habeas corpus.

In this case, it was tested by habeas corpus. Judge Roberts issued a writ for Mr. McKelva and, the minute the state judge learned that the Federal Court had entertained and granted the writ to bring him into the Federal Court, the state judge called Mr. McKelva over from the county jail and said “I'm going to let you go.

Your behavior has been very good and you may be released.”

And, of course, mooted the only traditional way of handling this case.

I don't think this Court can find a case.

We've, I think, done a decent job of research and I don't think this Court can find a case where a lawyer's been put in jail for giving non-contumacious advice just because a judge happens to think that it's contrary to what he wants done.

Justice Potter Stewart: In your argument, you wouldn't-- wouldn't your argument be the same despite the fact that, as you say you brief the merits of this question--

Mr. William F. Walsh: You want to know if it was going to be the same.

Justice Potter Stewart: Your argument would be the same, wouldn't it, if the advice had turned out to be or even if your opinion was clearly erroneous advice, wouldn't it?

Mr. William F. Walsh: Erroneous, yes.

Good faith is the question.

Justice Potter Stewart: Assuming it was in good faith and, as you say, non-contumacious advice.

Mr. William F. Walsh: I think I'm entitled to make mistakes in my practice of law without going to jail.

Now, if I'm arguing a proposition to you which is not in good faith, if I'm trying to kid the Court, this Court or the Court in Tyler, that's another kettle of fish and, quite frankly, I might take a somewhat different position in that event.

But, so long as the legal advice is in fact given in good faith and, as I say, in this case we have tried to demonstrate to you that there are good faith grounds for believing that the advice was correct.

Justice Byron R. White: What should've-- what should a judge do in a civil proceeding when a witness takes the Fifth Amendment and says he won't answer the question and the judge considers it and says “well, this just happens to be within the area that the Fifth Amendment doesn't apply to and I direct you to answer the question.”

Mr. William F. Walsh: You have--

Justice Byron R. White: And the witness says “I'm awfully sorry.

I won't do it.”

Mr. William F. Walsh: That's exactly what the-- put the man in jail for contempt of Court and then, in Texas, we would have a right to litigate the legality of the confinement and the--

Justice Byron R. White: Well, what about the lawyer who says “now, you go ahead and refuse to answer”?

Mr. William F. Walsh: Sir, my light is on but let me say this.

The record-- the appendix clearly shows and the record clearly shows that the lawyers did not advice him to ignore any Court order.

They simply advised him what they thought his legal rights were.

Chief Justice Warren E. Burger: You can enlarge on that answer after lunch if you want.

Mr. William F. Walsh: If I may, Your Honor--[Luncheon Break]

Chief Justice Warren E. Burger: Mr. Walsh, you may continue.

You have about 19 minutes of your time left.

Mr. William F. Walsh: Mr. Chief Justice Burger and may it please the Court.

I have asked the martial to divide my time in half so that I may have some time for rebuttal, and I just have a few more remarks I wish to make to the Court at this time.

First, I would like to point out that if Michael Maness is guilty of contempt of Court for advising a client about his Fifth Amendment rights, this Court ought to summon Mr. Sinclair back for advising President Nixon not to surrender those tapes and hold him in contempt of Court.

This is a perfect situation of a lawyer giving pro--

Yes, Your Honor.

Justice Byron R. White: Let me ask you, was the judge-- if the judge rules that the Fifth Amendment privilege is not available in a certain context which is being claimed by a party or a witness and insists that a subpoena be complied with or an answer be given to a question and the lawyer advices the client not to answer, do you suggest that he-- that the lawyer-- neither the lawyer nor the client is in contempt of Court?

Mr. William F. Walsh: No, I didn't suggest that the client was not.

Justice Byron R. White: Alright, the client's in contempt of Court.

Mr. William F. Walsh: This Court has decided that very question in Ryan versus United States in the fall of the second--

Justice Byron R. White: And-- but, the lawyer is not.

Mr. William F. Walsh: No, I think the lawyer has the right to give free and untrammeled advice under any circumstances as long as it's an honest professional--

Justice Byron R. White: Let's suppose that the client at that very moment had the right to challenge the judge's ruling or appeal.

Instead of disobeying, he could appeal.

Mr. William F. Walsh: Yes, sir.

Justice Byron R. White: And he chooses not to appeal but disobeys.

The situation would be different, I suppose.

Mr. William F. Walsh: Your Honor, I would be making a quite different argument if that were the case but, under the Texas Law as it applies to this particular case, there was no way to do that.

Justice Byron R. White: So that, the only way to test the judge's ruling was to be in contempt and then have the challenge under the Fifth Amendment ruled on as part of the contempt procedure.

Mr. William F. Walsh: That is correct, sir, but--

Chief Justice Warren E. Burger: And you either get a stay of that or habeas corpus.

Mr. William F. Walsh: Well, Your Honor, the lawyers attempted to obtain habeas corpus relief from both the Supreme Court of Texas and the Court of Criminal Appeals, both of which denied relief.

Justice Byron R. White: Is there--

Mr. William F. Walsh: They then went to the United States District Court for the Western District of Texas which granted writ of habeas corpus and, the minute the Federal Court granted the writ, the state judge released the prisoner, thereby, mooting the whole case.

Well, is there any--

Sir?

Chief Justice Warren E. Burger: Did he find him or did he just wash that case out?

Mr. William F. Walsh: He just washed it off.

Justice William J. Brennan: Was there any dispute between you and your opponents as to whether there was a procedure in Texas to challenge this ruling other than back in here?

Mr. William F. Walsh: Well, Mr. Zwiener and Mr. Dibrell can answer that, but I don't think there is any such dispute.

Am I correct?

If you would, I don't believe there is any way to do it.

Chief Justice Warren E. Burger: Mr. Walsh--

Excuse me, go ahead.

Mr. William F. Walsh: Well, that's all, Your Honor.

I just do want to suggest that this-- before I turn this over to my friends at the Attorney General's Office, I do want to suggest that we are toying here with the right of a free American lawyer to give free and untrammeled legal advice to a person who's in trouble.

And, that is what is really involved in this case and I hope the Court will recognize it in deciding it.

Chief Justice Warren E. Burger: When you cast it in that form, of course it at least doesn't give me difficulty, but let me suggest a hypothetical case to you, just an ordinary civil lawsuit, personal injury or whatever.

An accounting case and you have a witness, not a party.

A party who refuses to answer, the Court has many sanctions.

He can either dismiss the case of the plaintiff or he-- defense counsel can exploit-- the plaintiff's counsel can exploit that.

Mr. William F. Walsh: Yes, sir.

Chief Justice Warren E. Burger: In argument if it's the defendant, so later decide it's a third-party witness and the third-party witness refuses to answer on the grounds of self-incrimination.

Is the Court at that point absolutely bound or can the Court make some inquiry into the good faith of the assertion?

Mr. William F. Walsh: Your Honor, I think the Court can hold the witness in contempt and let the witness exercise his right to habeas corpus and the other relief which is available, which is precisely what this Court decided in Ryan.

Chief Justice Warren E. Burger: Now, let's move to his lawyer.

Mr. William F. Walsh: Sir?

Chief Justice Warren E. Burger: Now, let's move to his lawyer as in this case.

Mr. William F. Walsh: Yes, sir.

Chief Justice Warren E. Burger: And the answer of the witness is that, on advice of counsel naming him, he declines to answer for his reasons.

If you can hypothesize a situation where the claim is, on its face, utterly frivolous and unfounded and, here, you're in the middle or in the process of a trial which might have to be declared a mistrial as a result, there might be many untoward results.

Is the Court totally without power to deal with that situation, other than contempt of the witness himself?

Mr. William F. Walsh: Well, frankly, I am not briefed to discuss that but my answer would be, just having briefed the rest of this case, my answer would be yes.

Chief Justice Warren E. Burger: Must be against--

Mr. William F. Walsh: Hold the witness in contempt.

Chief Justice Warren E. Burger: Just move against the witness and not against the client.

Mr. William F. Walsh: I am willing to concede, Your Honor, that there are peculiar circumstances that I can conceive of where the lawyer's advice would be so frivolous that perhaps the Court could take disciplinary action, but I don't think by way of contempt.

Chief Justice Warren E. Burger: And a later--

Mr. William F. Walsh: I think the way would be through the grievance procedure or something of that sort.

Chief Justice Warren E. Burger: Take disciplinary action or refer it.

Depending on the rules of the jurisdiction, refer it to the proper body.

Mr. William F. Walsh: Yes, sir.

Chief Justice Warren E. Burger: But, independent of the case and independent of any contempt proceeding.

Mr. William F. Walsh: Your Honor, that happens to be my opinion.

I-- as I say, that we're not involved in that here.

Chief Justice Warren E. Burger: No.

Mr. William F. Walsh: This man was under a criminal accusation at the time and it happened to arise in the context of a civil action, but he was under a pending existing criminal action at the time.

Chief Justice Warren E. Burger: And the matter sought to be produced was the subject of the criminal procedure.

Mr. William F. Walsh: Yes, sir, and was contraband.

The state has cited DiBella in its briefing.

Now, the material in DiBella's case was not contraband.

In this case, if the state was correct in its contention that it was contraband, it, seems to me, raise some slow couture that the man has the right to refuse to produce it.

Thank you, Your Honor.

Justice William H. Rehnquist: Mr. Walsh, supposing that instead of the attorney's objection and advice being based on Fifth Amendment grounds, this came up in the course of a proceeding where his client was on the stand, the client, say, was a defendant in a civil action and he's being crossed-examined.

The other lawyer asked him a question and his lawyer objects on the ground of hearsay and the Trial Court overrules the objection, tells the client who was on the witness stand “answer the question,” and then the lawyer says, very politely, “just a minute, Your Honor.

I'm telling my client not to answer that question.”

Now, there's no constitutional issue involved there.

Would you say that case is different from yours?

Mr. William F. Walsh: Your Honor, yes.

I would say it's different because of the pendency of the criminal proceedings against this man, but I would go a little further.

First, if the client wishes to follow his lawyer's advice, if the lawyer says “don't answer that question, I don't care what the judge says,” if he chooses to follow, he goes to jail and that may be tested in the proper appellate remedy, as is suggested in Ryan.

Now, just a moment, Your Honor, the next thing is that it is totally frivolous information that the lawyer has given the client if it is stupid advice.

We do have laws involving malpractice.

Justice William H. Rehnquist: Well, I thought that--

Mr. William F. Walsh: And the client has remedy against the lawyer.

Justice William H. Rehnquist: I thought your argument was based though on the idea that this was advice about a constitutional claim.

Mr. William F. Walsh: That's correct.

Justice William H. Rehnquist: You think it's simply--

Mr. William F. Walsh: That's all that's involved in this case, Your Honor.

Justice William H. Rehnquist: Well-- but in my example, it's simply a question of whether it's hearsay and whether he's required to answer in the normal course of interrogation of a witness.

Mr. William F. Walsh: Well--

Justice William H. Rehnquist: Wouldn't you draw a rather sharp distinction or is this free and--

Mr. William F. Walsh: I am drawing a sharp enough distinction so that I am willing to answer your question.

Justice William H. Rehnquist: Well, is this--

Mr. William F. Walsh: Because it isn't involved in this case.

Justice William H. Rehnquist: Well, is the free and untrammeled right of a lawyer to give legal advice something that exists in a-- quite apart from the subject on which he's advising?

Mr. William F. Walsh: I think so.

Justice William H. Rehnquist: In a Courtroom he's--

Mr. William F. Walsh: Well, not in-- completely free from the subject on which he is advising.

No, I don't think that is so at all.

Justice William H. Rehnquist: But, regardless of whether the subject he's advising on is a constitutional right or not, you feel that in a Courtroom the lawyer has a right to give free and untrammeled legal advice.

Mr. William F. Walsh: I do.

Justice William H. Rehnquist: And what's the source in the constitution for that claim?

Mr. William F. Walsh: The constitutional right to counsel.

Justice William H. Rehnquist: But, you don't have the right to--

Mr. William F. Walsh: It is the constitutional right, for instance, to a jury trial and anything above it more than $20.

Justice William H. Rehnquist: But that's in a criminal case.

Mr. William F. Walsh: That involves the constitutional right to have counsel represent you.

Justice William H. Rehnquist: Well-- but that's a Seventh Amendment right that the con-- it's conferred on litigants in Federal Courts.

You were in State Court.

Mr. William F. Walsh: Well, I would be prepared to contend that the Fourteenth Amendment encompasses the right to trial back to the right to assistance of counsel in Civil Courts.

If you happen to have counsel and he's there and, as these lawyers were, whether you have the right to appointed counsel, as we do in criminal cases, is another kettle of fish but, certainly, if you have a lawyer there and he gives you the advice and you follow it, I think that's your risk and your remedy is against the lawyer.

Justice William H. Rehnquist: There's nothing the judge can do.

Mr. William F. Walsh: Yes, he can put the client in jail.

Justice William H. Rehnquist: Nothing the judge can do to the lawyer?

Mr. William F. Walsh: Well, I have seen one case in my own home federal district where the lawyer's asserted a claim of privileges to a communication that was made to them by the clients and Judge Connelly took the position “fine, I can hold you in contempt of Court if you don't answer the question,” and he said “if you're right, you can revert,” but you understand this is the lawyer directly claiming a privilege of his own.

This is not advising a client as we have in this case, and Judge Connelly's position was “well, I'm going to hold you in contempt and if you win in the Supreme Court or the Fifth Circuit or anywhere else, that's fine but I'm not going to reduce the sentence at the end of 120 days, but that's a different situation.

No, I think the lawyer has a certain degree of immunity and I think it's up to this Court to protect it.

The--

Justice William J. Brennan: Your position would be the same if there's an injunction outstanding against the party and the lawyer advised him not to, he thought the injunction was invalid, and he just advised him to disobey it.

Mr. William F. Walsh: Well, Your Honor, I would hope that I would advise him to appeal the injunction.

Justice William J. Brennan: I know, but if you didn't.

You advised him to disobey it.

Mr. William F. Walsh: It-- Your Honor, if there was judicial relief available, it would be a different kettle of fish.

Justice William J. Brennan: Well, that's the critical point.

Mr. William F. Walsh: But, in this case, there was no judicial relief available.

Justice William J. Brennan: Isn't that a critical point in your entire argument?

Mr. William F. Walsh: I think it's an important point.

Whether it is critical or not, I don't know, but it certainly is an important issue and I agree with you that the Court needs to consider it.

But, the fact remains that, in this case, there was no relief available other than the relief that was actually granted by the United States district judge and was, thereafter, mooted by the state judge when he realized that it was going to get into Federal Court, and that is the peculiar reason for this whole case.

I would like very much to keep some of my time and, unless the Court has other questions, and turn it over to my friends in the Attorney General's Office.

Chief Justice Warren E. Burger: Very well, Mr. Walsh.

Mr. William F. Walsh: Thank you, Your Honor.

Chief Justice Warren E. Burger: Mr. Dibrell.

Argument of Joe B. Dibrell

Mr. Joe B. Dibrell: Mr. Chief Justice and may it please the Court.

Before starting into-- on point, I would like to, I think, clear the record with reference to the matter of the way this case came here.

I think that there is no evidence for insufficiency that evidence question concerning the fact that the attorney did in fact advice McKelva, the witness, not to produce the magazines that were subpoenaed.

No question that he'd advice him further, the second time, to produce them and actually if this advice was what was followed and what Judge Roberts held to be contemptible on the part of the witness as well as the attorneys.

I think it's pointed out on page 14 of the petitioner's brief and they want to make sure that there's no question about the jurisdiction or about the fact that the actual advice had been given to disobey the trial judge's order to produce the material.

Justice Thurgood Marshall: Is there any explanation to why he drop the charges against the party and didn't drop them against the lawyer?

Mr. Joe B. Dibrell: The-- McKelva served seven days in jail, Your Honor.

They were not dropped.

He actually served.

It was a 10-day contempt-- criminal contempt sentence and he served 7 of those days, and the judge released him 3 days early and, at the time--

Justice Thurgood Marshall: Did he sought any-- well, did he give any relief to the lawyer?

Mr. Joe B. Dibrell: The course of the relief of the lawyer under Article 1911 (a) of the Texas statutes, Your Honor, Justice Marshall, the-- before the attorney could actually be held in contempt, actually have to pay a fine or serve time in jail when the contempt has been asserted by the judge.

Another judge must come in and preside over the matter and to hear the matter as somewhat as a review to-- and make an independent judgment as to whether to uphold the contempt of the attorney.

This was done in this case by Judge Meyers.

Justice Thurgood Marshall: But as long as the Federal Court moot, he turned the--.

Mr. Joe B. Dibrell: What, sir?

Justice Thurgood Marshall: Client loose.

Mr. Joe B. Dibrell: That was the-- that was before the writs were denied, from my understanding that that developed before the writs were denied by the Supreme Court of Texas or the Court of Criminal Appeals with reference to the, not to McKelva but, with reference to the Dis-- the contempt, actually the lawyer is, as far as making a file, a determination occurred long after the mootness of the McKelva content.

Justice Thurgood Marshall: It did?

Mr. Joe B. Dibrell: Yes, Your Honor, because the attorney, you see, not had there, review by Judge Meyers under the Texas procedure where the attorneys--

Justice Thurgood Marshall: I'm not talking-- I'm talking about the judge, the original trial judge.

His original action, he didn't-- that stayed, he didn't touch it all as to the lawyer, but he did as to the--

Mr. Joe B. Dibrell: I think under 1911 (a), once he'd made the decision, Your Honor, he no longer had the decision--

Justice Thurgood Marshall: Well--

Mr. Joe B. Dibrell: To do it.

I think it's now to Judge Meyers to another judge who was assigned, Judge Clauson, no longer actually had control of the contempt of the lawyers at that point.

I think once he had made the adjudication then to whether or not he was going to be upheld or whether he will be in contempt or not would be determined by the judge who was assigned to make that determination.

Justice Thurgood Marshall: Well, my other question is when the witness in Texas pleads to Fifth Amendment, did they use the jargon most states use that “on the advice of counsel, I claim the Fifth Amendment”?

Did they use that jargon in Texas?

Mr. Joe B. Dibrell: They have on occasions, Your Honor.

I don't think it's uniform.

Justice Thurgood Marshall: But they have on occasion?

Mr. Joe B. Dibrell: Yes, they have on occasion.

Yes, Your Honor.

Justice Potter Stewart: Did McKelva go up through the-- try to get a review of his contempt conviction in the-- through the state system?

Mr. Joe B. Dibrell: He had to make an application to the state before.

I think we could have had jurisdiction for Judge Roberts.

I think he had actually made an application to the Court of Criminal Appeals and to the Supreme Court as well, but I don't think there's any question about it, perhaps if there was jurisdiction, by Judge Roberts to initially grant the writ as far as not having exhausted a state remedy.

Justice Potter Stewart: So he did not get a review because he was released before there was an opportunity for it, is that right?

Mr. Joe B. Dibrell: That's right, Your Honor.

Justice Potter Stewart: And it was--

Justice Byron R. White: Was there a motion to-- there was a subpoena issued for magazines and then there was a motion to quash, was there not?

Mr. Joe B. Dibrell: There was a motion to quash, yes, Your Honor.

Justice Byron R. White: And that was what was argued before the judge?

Mr. Joe B. Dibrell: The argument-- the motion contained one thing.

That the magazines were not owned by the witness--

Justice Byron R. White: But it was also--

Mr. Joe B. Dibrell: With no property interest.

Justice Byron R. White: It also asserted Fifth Amendment, didn't they?

Mr. Joe B. Dibrell: And, it also asserted the Fifth Amendment.

Justice Byron R. White: The judge overruled the motion.

Mr. Joe B. Dibrell: He overruled, yes.

Justice Byron R. White: Now, under Texas procedure, could that motion have-- could that decision have been appealed?

Mr. Joe B. Dibrell: No, not at that point.

It would not-- I think Judge--

Justice Byron R. White: So there was no remedy at that point to protect the materials claimed to be protected by the Fifth Amendment except not produce them and argued out in contempt?

Mr. Joe B. Dibrell: I think that the remedy course, had we want to get it, and my principal argument to Mr.--

Justice Byron R. White: Well, is that right or not?

Mr. Joe B. Dibrell: What, sir?

Justice Byron R. White: Is that right or not?

Was there or wasn't there some other remedy?

Mr. Joe B. Dibrell: Well, perhaps there might-- I'm not sure.

We'd-- I don't think it's developed in the state procedure.

I don't know that they're actually prohibited of trying to obtain an appellate judge's mandamus if a judge is made completely erroneous.

Justice Byron R. White: But the motion denied the denial.

The motion couldn't be appealed under Texas procedure.

Mr. Joe B. Dibrell: Not at that point.

They're actually the-- just the denial of the subpoena-- I mean, the motion to quash the subpoena at that point.

That's right.

Justice Byron R. White: And you don't know whether or not--

Mr. Joe B. Dibrell: And he had not yet held them in contempt yet either-- at that point either.

Justice Byron R. White: And you don't know whether or not mandamus was available.

Mr. Joe B. Dibrell: No, I do not.

I would like to point out very-- at this-- right at the beginning here that the respondent is not in the position here to urge a decision anyway that it would actually destroy or diminish or dilute witness' right to cert a Fifth Amendment privilege or even a right of a counsel to give legal advices to its effects.

Really, what the respondent is here and what we are seeking and urging upon this Court is some validation of the tools to the trial judges to compel the art of proceedings of the maters before them.

I think it's respondent's really petition-- contention here that it is the judge and not the lawyer who must be the final arbiter of such matters and, as to the suppression of evidence or claim of privilege subject for review, as the trial proceeding can go on in due course.

And, I readily admit that the conduct of counsel here was not contumacious, but I think it is clear that it was contemptuous in the sense that it did actually counsel a disobedience of a trial judge's order for production of these matters.

Chief Justice Warren E. Burger: Well, what if that order had been directed, as I think as Mr. Justice White suggested, to a question subpoenaed to the witness while he was on the stand in the course of trial and he declined to answer on the ground the response might tend to incriminate him.

Would you think the lawyer could be held in contempt for so-advising him?

Mr. Joe B. Dibrell: No, Your Honor, not until such time as the judge specifically says “you go ahead and answer the question and then, if the lawyer persists in telling it, I think at that point it's the witness' determination to make that determination whether he wants to be held in contempt, go ahead and suffer the consequences for being held in contempt or--

Chief Justice Warren E. Burger: Isn't that the normal?

Isn't that the ordinary route to test it as it is under the federal system or under Rule 17?

Mr. Joe B. Dibrell: Yes, it is, Your Honor.

Now, it just might not be a normal means but then, about the same token, if we give this absolute right, and I think that the-- if the Court is going to sanction action upon the counsel or just to actually disobey the Court's order in that point and not be held in some obedience to following the Court's order, I think is already been pointed out in other areas of disobeying a order of the Court, the Courts are turned into boards of arbitration.

Justice William J. Brennan: Well, how far will you carry that, Mr. Dibrell?

Suppose, getting back to the form of question my brother Marshall asked, the response was “on advice of counsel, I respectfully refuse on grounds of self-incrimination,” and the judge says “well, I don't honor that.

You answer.”

And, the answer was “I'm sorry, Your Honor, on advice of counsel, I respectfully refuse to produce it on grounds of self-incrimination.”

Now, in that circumstance, would the lawyer who had given the advice, would he have been n the difficulty that this lawyer is?

Mr. Joe B. Dibrell: I think he would, yes, Your Honor, I think, if I understand your question right.

Justice William J. Brennan: I'm speaking of before he ever takes the stand, he consults an attorney and the attorney tells him “no, if you're asked to produce it, you just say that on advice of counsel you're not producing it but pleading privilege against self-incrimination.”

Mr. Joe B. Dibrell: No, at that point, I don't think so.

Justice William J. Brennan: Not at that point, alright.

Now, the judge says “well, I don't agree with you and I order you to produce it,” and the witness says “again, I'm sorry, but under advice of counsel I refuse to produce it.”

Mr. Joe B. Dibrell: That is not the facts of this case.

Justice William J. Brennan: I know it's not, but I'm asking, would the lawyer be in the same difficulty that Mr. Maness is?

Mr. Joe B. Dibrell: No, I do not think so.

Justice William J. Brennan: Well, then why is Mr. Maness in the difficulty he's in?

Mr. Joe B. Dibrell: I think because if he-- the feeling of the frustration upon the part of trial judge in this proceeding where, first of all, he denied the motion to quash the subpoena then he asked counsel if he want.

He did not want to hold McKelva in contempt at this point.

He said “I want to give you an opportunity to produce these magazines that had been subpoenaed.

How much time would you like?”

Counsel replied “well, you'll have to make that determination.

We cannot suggest.

It could even be 10 days we'd still not produce it.”

Nevertheless, the Court recessed until 1:00 and to permit the production of the magazines in convenience to his order.

Justice William J. Brennan: And the lawyer persisted in the advice he'd initially given.

Mr. Joe B. Dibrell: That's right, persisted in it.

Justice Thurgood Marshall: Is the lawyer--

Mr. Joe B. Dibrell: It's his second persistence in it that we-- that the respondent feels was contemptible on the part of counsel.

Justice Thurgood Marshall: Is the lawyer frustrating the judge or the Fifth Amendment frustrating him?

Mr. Joe B. Dibrell: I don't think the Fifth Amendment was frustrating the course of the facts of this case.

I think that the brief that we filed and the fact that I think your position in DiBella and actually in the analysis of Boyd and I think that clearly, as far as the actual facts of this case, McKelva did not have a right to assert the Fifth Amendment.

I mean, he couldn't properly assert it was powerful.

Justice William O. Douglas: I thought possession would be the crime in Texas?

Mr. Joe B. Dibrell: This is still a civil proceeding, Justice Douglas, in the sense that we're trying just to see whether it's about the injunction is, not one with any further problems.

Justice William O. Douglas: That's nothing to do with the Fifth Amendment but, I mean, even though it's a civil proceeding he could-- if possession was a crime, he would be protected, wouldn't he?

Mr. Joe B. Dibrell: I think that, as Justice Black has indicated in Adams versus Maryland, the fact that he will still be able to be very asserting of the Fifth Amendment privilege would give immunity to what, actually at that point, flow from it.

If he had to actually had to produce it in these books at this point, I don't think he could use that as the factor showing that he had possession of it in a criminal prosecution.

Chief Justice Warren E. Burger: You mean that could be subject to a motion to suppress?

Mr. Joe B. Dibrell: Yes.

Chief Justice Warren E. Burger: For his possession?

Mr. Joe B. Dibrell: He could still have his motion to suppress the evidence later on.

Chief Justice Warren E. Burger: On the grounds that he was compelled to produce it against his will.

Mr. Joe B. Dibrell: Yes.

Chief Justice Warren E. Burger: Do you think that's enough protection?

Mr. Joe B. Dibrell: I think that what this Court really needs to help to decide this is to keep the balance of what the right of the people and a right of the Court to ultimately have all of the facts brought forth any proceeding, civil proceeding and criminal proceeding, obviously Fifth Amendment privileges, other constitutional rights.

It's the responsibility of the Court to protect these witnesses and parties as well, but that-- I think that what is necessary and what would be helpful and necessary is that we could go ahead and actually have the prophylactic rule about it, as suggested by the modern rule of evidence, the fact that this would be-- you actually would have this immunity.

You go ahead and produce it and you would have this immunity from actual to criminal prosecution.

You use in criminal prosecution that part of it.

Justice Harry A. Blackmun: Mr. Dibrell, let me see if your position is what I think it is.

I take it you have conceded all along that this Mr. Maness could advice his client initially to take the Fifth and then, the Court having ruled, I take it you feel that what he should advice the client is, “in my judgment you have the right to take the Fifth but, if you do, you may go to jail but I, as a lawyer, have to advise you to obey the orders of the Court.”

Isn't this essentially what you're saying at this point?

Mr. Joe B. Dibrell: Yes, Your Honor.

Justice Harry A. Blackmun: And that, I take it, you feel is different than to persist in advising the client to take the Fifth.

Mr. Joe B. Dibrell: I think so.

Once the Court has had to make some determination, once he has had to be the arbiter of this particular matter of the proper assertion of the Fifth Amendment or not, what-- I think what the Trial Court, all Trial Courts, need at least have the-- as far as possible to make and a erroneously a free judgment call as possible to protect the rights of the witness who's claiming a privilege, as well as to protect the rights of the parties who are entitled to have the information come into the trial.

Justice William J. Brennan: The Court could be wrong.

Mr. Joe B. Dibrell: Yes.

Justice William J. Brennan: Practicing lawyers, we've all known instances certainly where we think they're wrong.

Mr. Joe B. Dibrell: That's right, yes, Your Honor, and I think that what we need is to cut down as much as possible there up on the part of the trial judge.

Justice Byron R. White: Well, what if the client said-- is told to produce this second time, as you say, and he says “may I talk to my attorney?”

The judge says “alright,” and he talks to his attorney and he asks his attorney “is the judge right,” and the attorney says “well, in my judgment, he's wrong.”

“Well, how can we test it,” and the attorney says “just refuse to answer him.

We'll test it out on contempt proceeding, but you're going to be held in contempt but if you want to test it out, I advise you to--

Mr. Joe B. Dibrell: It's a suggestion that I would make the--

Justice Byron R. White: Not-- the only way you can test it out is to refuse to produce, but we can test it out that way.”

Mr. Joe B. Dibrell: I wouldn't argue--

Justice Byron R. White: Is there anything-- that would be a rather normal conversation, wouldn't it?

Mr. Joe B. Dibrell: If I can get-- I think that your question is the one point, I hope, Justice White, in that what is needed I think, as far as the trial judge is concerned, recognizing that, there, the protectors of the rights of the witnesses and all authorities, at least to have it in camera examination of documents which have been subpoenaed to make a better det-- more determination and, perhaps, would even urge that some in-chamber inquiry up to the point is to what the testimony--

Justice William J. Brennan: Tell me this, Mr. Dibrell.

Suppose, in this instance, Mr. Maness had said “alright, you better obey,” and so he surrendered the documents he had possession of.

And, the next day, there's a misdemeanor charge under your Section 3 that for having possession with intent to distribute any obscene matter.

I gather that, on the strength of what he surrendered, even though his lawyer thought he didn't have to surrender but just to obey the judge he surrendered it, I guess he'd go to jail, wouldn't he?

Mr. Joe B. Dibrell: You're talking about an involuntary surrender.

Justice William J. Brennan: Certainly, that's what I'm talking about.

Mr. Joe B. Dibrell: Yes, I think--

Justice William J. Brennan: In response to the order.

Mr. Joe B. Dibrell: I think you can, at that time, move to suppress it.

Chief Justice Warren E. Burger: Is it established law that you could suppress in those circumstances in Texas?

Mr. Joe B. Dibrell: Well, I think Texas is under the same ruling as this Court as any other State Courts.

In this instance, I think that this Court has ruled that you can still-- have found that you can still move to suppress evidence.

Chief Justice Warren E. Burger: But we find that, sometimes, some of these things are not always followed in the State Court so-- but my question is in Texas, in a State Court proceeding, is it accepted law that the involuntary production would enable him to suppress it as evidence in a subsequent criminal trial?

Mr. Joe B. Dibrell: I can't cite a case, Your Honor, but I would-- my-- probably, yes, it would be--

Chief Justice Warren E. Burger: It isn't perhaps quite enough for the man to know that, ultimately, in the Federal Court he might be vindicated if, in fact, it would be incriminating to him or tend to be incriminating in the State Court system.

Isn't that correct?

Mr. Joe B. Dibrell: I don't think it even-- frankly, I don't think that the State Courts have had the point to where he would-- I don't think that there's a saying which say that he would have this risk anymore than with the federal system.

Chief Justice Warren E. Burger: But then, doesn't that tender give some color of validity to the lawyer's advice?

If you can't answer, that it is established Texas law that that would be subject to a motion to suppress, and with a successful outcome, and doesn't that justify the lawyer telling him not to produce?

Mr. Joe B. Dibrell: I think that, frankly, that the State Court would sustain a motion to suppress, but I cannot cite you to a case.

Chief Justice Warren E. Burger: Well, what if the lawyer had said to the client exactly what you've just said to the Court that “I think,” if the client in-- during a recess then asked him the question and he said “I think that I can't cite any case that it will be subject to motion to suppress”?

Mr. Joe B. Dibrell: Well, I think we ought to hold that.

There, again, I think the contempt that we're here is the actual disobeying-- the actual very-- to go ahead and actually disobey and not just giving advice as to what might be the consequences.

Justice Thurgood Marshall: But, Mr. Dibrell, on your-- you said the only way to try it out is to go to jail.

Mr. Joe B. Dibrell: This is what Mr. Walsh indicated, let the-- let his client go to jail.

Justice Thurgood Marshall: Well, if that's the only way to do it and you say that's the one we are trying it out, and the judge puts both the lawyer and the client in jail, how do you get a trial while they're in jail, both of them?

Mr. Joe B. Dibrell: Of course, in this case, the judge didn't put them both in jail until he-- you don't get the trial.

Justice Thurgood Marshall: Well, you said he couldn't put them there.

Mr. Joe B. Dibrell: What, sir?

Justice Thurgood Marshall: Could he have given them 10 days, the lawyer?

Mr. Joe B. Dibrell: He gave them 10 days, but he could not then put the lawyer in jail.

Justice Thurgood Marshall: Why not?

Mr. Joe B. Dibrell: Because another judge has to come in and hear the matter.

Justice Thurgood Marshall: Why not?

Mr. Joe B. Dibrell: Because Article 1911 (a) of the Texas statute provides that an officer of the Court or the attorney who is held in contempt by a judge, that judge must let another judge come in and preside over the matter.

Justice Thurgood Marshall: Well, then he say-- that judge says “go to jail.”

How do you litigate that?

Mr. Joe B. Dibrell: Well, he doesn't litigate it by a writ of habeas corpus.

Justice Thurgood Marshall: In jail?

Mr. Joe B. Dibrell: Well, he would be broth forth to be litigated in Court.

Justice Thurgood Marshall: Well, what's left of the Fifth Amendment in a civil proceeding in Texas, other than the judge's unfettered discretion?

Mr. Joe B. Dibrell: I don't think it's anymore unfettered discretion than any judge in the trial of any proceedings that he's got to consciously follow the-- what he understand what action of the law is.

He's under the same commands of all of the federal judges as anyone else in the matter of constitutional all-preserving, protecting the rights of witnesses or parties.

Justice Thurgood Marshall: But this is the Fifth Amendment we're talking about.

Mr. Joe B. Dibrell: Yes, and the Fifth Amendment.

Justice Thurgood Marshall: To the constitution?

Mr. Joe B. Dibrell: I think that he has either gone to sus-- when the privilege is raised, he's either got the option of either-- obviously, he's got the option of either sustaining the assertion of the--

Justice Thurgood Marshall: Do you recognize that the lawyer might have been wrong in the Fifth Amendment advice he gave and, if you assume that he could be wrong, would you also assume that the judge could be wrong?

Mr. Joe B. Dibrell: Yes, Your Honor.

The judge can also be wrong.

Justice Thurgood Marshall: But 10 days will settle that in jail?

And, if he turns him loose, you can't tell us what protection he has, can you?

Mr. Joe B. Dibrell: He returns the--

Justice Potter Stewart: Materials.

Justice Thurgood Marshall: Materials loose.

Mr. Joe B. Dibrell: I think he still has available to a motion to suppress the evidence even in this proceeding, this current proceeding--

Justice Thurgood Marshall: Of course he has a right to file a motion.

He has a right to file the--

Mr. Joe B. Dibrell: And also to object to it.

The judge has not even had an in-camera inspection of the materials, Your Honor.

Justice Thurgood Marshall: Can you give me one case in Texas that's granted a motion to suppress?

I understood you to say you didn't know of one.

Mr. Joe B. Dibrell: A case to suppress evidence?

Chief Justice Warren E. Burger: In these circumstances.

Mr. Joe B. Dibrell: In these circumstances.

No, I cannot give you.

Justice Byron R. White: Well, I gather the trial judge indicated that it would be.

At page 11 of the petitioner's brief there's a colloquy.

I think that's what it means.

The Trial Court said “which could have been reached by a motion to suppress that evidence or by an objection to an attempt to introduce it.”

Now, I don't know what law the Trial Court was relying on, but if-- I take it that's what he was referring to.

Mr. Joe B. Dibrell: Well, at least Judge Clauson was taking this attitude.

Justice Byron R. White: Yes.

Mr. Joe B. Dibrell: Yes, I think.

Chief Justice Warren E. Burger: Well, he's saying that it would be reached.

Does that mean-- is that an assurance that it would be-- when reached, it would granted?

Mr. Joe B. Dibrell: I think of it as an assurance by this Court and this proceeding that it could be reached by that being considered.

Justice William J. Brennan: But it wasn't the trial judge, was it?

This is the second judge, isn't it?

Is it or isn't it, I can't make out from this.

Mr. Joe B. Dibrell: Now, that's the trial judge.

Justice William J. Brennan: This is the trial judge.

Are you sure about that?

Justice Potter Stewart: Judge Clauson, if you'll look at the bottom of page 8, I think it begins with Judge Clauson and then carries on through pages 9, 10, and 11.

Mr. Joe B. Dibrell: Yes, it's Judge Clauson.

Justice William H. Rehnquist: Mr. Dibrell, what is the normal Texas procedure when someone is found in contempt during the course of a trial for that person who is himself found in contempt to obtain-- until appellate review in the state system?

Mr. Joe B. Dibrell: By a writ of habeas corpus to the State Court, State Appellate Court.

Justice William H. Rehnquist: And, was McKelva the client or witness here, was he in a position to seek habeas corpus had he gone to jail to-- or had he been sentenced for contempt by Judge Clauson?

Mr. Joe B. Dibrell: He was sentenced for criminal contempt of 10 days and--

Justice William J. Brennan: By Judge Clauson.

Mr. Joe B. Dibrell: By Judge Clauson, yes, Your Honor.

Justice William J. Brennan: And he sought state habeas corpus.

Mr. Joe B. Dibrell: State habeas corpus.

Justice William J. Brennan: All the way up.

Mr. Joe B. Dibrell: All the way up.

Justice William H. Rehnquist: If the Texas Criminal Court of Appeals or Supreme Court have thought his claim meritorious, they would've--

Mr. Joe B. Dibrell: They could've granted.

Justice William H. Rehnquist: Could've granted.

Justice Potter Stewart: I misunderstood.

I thought you told us a few minutes ago that he was released from custody before he had an opportunity to get a review of this man?

Mr. Joe B. Dibrell: He had already made this.

He was leaving before he had a review by the federal district judge.

Justice Potter Stewart: I misunderstood you.

We're talking about McKelva.

Mr. Joe B. Dibrell: Yes, McKelva.

No, he'd already made his-- he'd already been reviewed by the State Court.

Justice Byron R. White: And, in effect, the judge's ruling sustained that?

Mr. Joe B. Dibrell: That's right.

Justice Potter Stewart: Right.

Justice Byron R. White: And, so that if he hadn't been-- if he had turned the magazines over, he could never have had that review because he never would've been held in contempt.

Mr. Joe B. Dibrell: He would n-- that's right, he would not been held in contempt.

He'd been obeying the judge's orders.

Chief Justice Warren E. Burger: Let me go back.

Mr. Joe B. Dibrell: Yes, sir.

Chief Justice Warren E. Burger: I'm sorry to track over it again, but this judge's statement at page 11 of your brief.

Mr. Joe B. Dibrell: Of the petitioner's brief, Your Honor?

Chief Justice Warren E. Burger: Yes, right near at the top of the page where the Court said “referring to the action, the compulsory production, that it could have been reached by a motion to suppress that evidence or by an objection to an attempt to introduce it.”

Now, you say that you can't cite any case in which the Texas Courts have held that it-- that motion would be successful because of a compulsion exerted by the power of the subpoena.

Is the Court saying any more than pointing out the standard routine remedy, you can always make a motion?

Mr. Joe B. Dibrell: I think more, yes, Your Honor.

I think it is pointing out here that, actually, at this point of the subpoena, there's no record, there's no books or anything else.

The Court has not even had an opportunity to make an in-camera examination to rule on the admissibility of them by having them to see, to actually make a judgment call in that sense of incrimination or anything else.

All he has is the motion and the raising of the assertion of the privilege by counsel, and I think that the trial judge here was trying-- was pointing out to counsel that if I turn these over to the city attorney who has asked for the Court to subpoena these magazines.

At that point, you can object to their being introduced by the city attorney raising grounds and to still have a review of that and appeal later as to whether or not “if I do admit him, you can object to it, you can have a review by the Appellate Court to determine whether I laid the correct judgment or not.

If I-- in my view, that they should be suppressed or your objection is good, they do not come into this trial.”

Chief Justice Warren E. Burger: Well, what's the scope of the Fifth Amendment Incrimination Clause?

Does it mean that you can only use it if you are certain to be convicted of something or does it mean that you can assert the Fifth Amendment right if it will expose you to prosecution?

Mr. Joe B. Dibrell: Well, I think this Court has already determines that it is very personal.

It has to be very personal in its claim and it must be asserted for as I think, as I read the decision and as I understand the procedure, going to the actual privacy of the person's either in the facts, his papers, and of course also his testimony which might be obviously personal to him if it incriminates him.

Chief Justice Warren E. Burger: But that doesn't quite answer my question.

In Texas, as you-- as the Texas Courts apply the Fifth Amendment to the constitution, is it necessary to show, in order to assert it successfully, that you are bound to be convicted or is it enough to show that you are likely to be prosecuted?

Mr. Joe B. Dibrell: No, I don't think you have to show that you are bound to be convicted.

No, I think it is enough that you might be prosecuted.

I think that a-- I don't think there's any difference in the fact that it might be-- you've got to show that it's obviously some incrimination, otherwise I don't think that there's proper assertion.

Chief Justice Warren E. Burger: Assume-- let's alter our facts a little.

Assume that there was no criminal proceeding pending in this case and he declined to produce on the advice of counsel who said if you do produce them, you are very likely to be prosecuted.

Would that be a-- would you regard that as a good-- a valid claim that should be recognized by the Texas Courts?

Mr. Joe B. Dibrell: I don't see the distinction there, but what are the possible some criminal prosecution pending or civil.

I think that, still, he's got a duty to produce these particular magazines in this case.

Chief Justice Warren E. Burger: Very well, Mr. Dibrell.

Mr. Walsh, do you have anything further?

Rebuttal of William F. Walsh

Mr. William F. Walsh: Very little, Your Honor.

I'll just say this.

Every time I have to be down at the police station at midnight and tell a client “by George! You have a Fifth Amendment right not to talk to the police,” I guess I am obstructing justice if that is within the meaning of what our friends from the state say, but the fact is that the advice given in this case was obviously sound.

It was obviously founded on careful pleadings.

It, I think, is totally sustained by our briefs but I don't think that's the key issue in this case.

I think the key issue is the right of the lawyer to give advice, and this Court in Ryan has made it very clear that there's a conventional, easy, simple way to pursue this matter and handle it.

And, in answer to the question that was asked from the bench, first, I'd like to point out that at page, I believe it's 41, yes of the--

Chief Justice Warren E. Burger: Of which?

Mr. William F. Walsh: Of the appendix, the Court of Criminal Appeals of Texas simply denied the motion for relief to file the application for habeas corpus as to McKelva.

The Supreme Court of Texas did the same, and both of those notations are at page 41 of the appendix.

Justice Potter Stewart: And did all of that happen within seven days or--

Mr. William F. Walsh: Yes, they moved fast, Your Honor, and did everything they could for their client.

But, they then received the writ of habeas corpus from Judge Roberts, and it was on that day, as a matter of fact, while they were hand-carrying the writ of habeas corpus from Judge Roberts to the State District Court, he apparently learned of it through some informal way which we honestly do not know and he had the man brought over from the county jail and dismissed the charge against him.

And, of course, that mooted the federal habeas corpus for the-- as to the client.

Justice Potter Stewart: And this was a criminal contempt, wasn't it?

It wasn't a civil contempt.

Mr. William F. Walsh: Well, he was in contempt of Court, Your Honor.

I'm unsure how--

Justice Potter Stewart: Well, it was a 10-day certain.

Mr. William F. Walsh: Yes, and that was what was given the lawyers too.

Justice Potter Stewart: And the lawyers also had the number of days certain post to fine.

Mr. William F. Walsh: The reviewing judge-- as Mr. Dibrell has said, the reviewing judge changed the jail sentences to the lawyer as to both Mr. Maley and Mr. Maness to a $500-fine but, of course, on non-payment of the fine they're subject to going to jail.

And, there is a-- what I think is a perfectly sound opinion from Judge Roberts.

It is Exhibit C on the brief on the merits.

Judge Roberts is from Texas.

He knows what goes on and how it goes on and, quite frankly, I don't think this Court could do any better than to simply adopt Judge Roberts' opinion as to both parties.

Justice Potter Stewart: Well, I saw Judge Craig's opinion and where is--

Mr. William F. Walsh: No, Judge Roberts, Your Honor.

Justice Potter Stewart: Oh, Judge Roberts, yes.

Mr. William F. Walsh: Yes.

Justice Potter Stewart: On the habeas.

Mr. William F. Walsh: It's, I believe, Exhibit C.

Justice Potter Stewart: Yes.

Mr. William F. Walsh: Yes, at page 74 of our--

Justice Potter Stewart: Right.

Mr. William F. Walsh: Brief on the merits.

Justice Potter Stewart: Right.

Mr. William F. Walsh: And--

Justice Byron R. White: Isn't there a normal procedure in Texas for granting immunity where the state wants testimony that explain in the--

Mr. William F. Walsh: Your Honor, we have several independent statutes on immunity in various kinds of cases.

Justice Byron R. White: Normally, the prosecutor or the judge or somebody has to make it clear to the witness or the party that that removes the danger.

Mr. William F. Walsh: Well, yes and, furthermore, I might point out that the idea that Mr. Dibrell suggested to the Court I have crow with it.

I think Chief Justice Burger had his fingers on it.

If this were released, even after advice of counsel, there would be a serious question in my mind as a defense lawyer whether it wasn't voluntarily released.

I mean, yes, if you actually hit a guy on the head and take something away from him, there's no problem.

But, if it is your decision not to contest a Court judgment and simply accept it and bring these materials into Court, there is a serious question in my mind as to whether that is not a voluntary surrender and, therefore, your right to suppress may indeed be restricted.

I simply invite the Court's attention to that.

I have used most of my time.

Unless the Court has further questions, I'd like to thank the Court for its attention and for the privilege of being here.

Chief Justice Warren E. Burger: Very well, Mr. Walsh.

Thank you, Gentlemen.

The case is submitted.

Featured:

Codispoti v. Pennsylvania - Oral Argument

Thu, 23 Aug 2012 18:26:51 +0000

Case:

Codispoti v. Pennsylvania

Media File:

73-5615_19740325-argument.mp3

Related Transcript:

73-5615_19740325-argument

Transcript:

Argument of John J. Dean

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-5615, Codispoti and others against Pennsylvania.

Mr. Dean, you may proceed whenever you’re ready.

Mr. John J. Dean: Thank you sir.

Mr. Chief Justice and may it please the Court.

Once again there is before this Court the relatively troublesome problem of the right of a defendant charged with direct criminal contempt to the Court to have a jury of his peers decide the issue of guilt or innocence.

Procedurally, this is case is relatively confused, however the issues are easily framed and quite clear.

Dominick Codispoti together with Herbert Langnes and Richard OJ Mayberry came on for trial in Pittsburgh, Pennsylvania back in November of 1966 on charges of prison breach and holding a hostage in a penal institution.

The trial lasted approximately six weeks and was marked by repeated altercations between the trial judge and between the defendants.

The defendants were found guilty.

They were given a 15 to 30 year sentence on one charge, a consecutive five to 10 sentence on other charge, and immediately at the end of the trial, the trial judge summoned them up some -- sentenced them anywhere from 11 to 22 years for the contempt of Court for the various statements that had been made in the presence of the Court.

They then appealed to the Pennsylvania Supreme Court and the Pennsylvania Supreme Court affirmed their conviction with several justices dissenting upon with theory of cruel and unusual punishment and since this case had antedated the Baldwin decision perhaps on a right to a jury trial.

Chief Justice Warren E. Burger: Do you think that the Courts under Illinois against Allen could have bound and gag these defendants as we said they could in Illinois against Allen, and then appoint counsel for them without regard to what they felt about counsel or appointing alternatively counsel as friends of the Court to act for them?

Mr. John J. Dean: Your Honor, Count Advisers as our Court called them in 1966 were appointed to help these people who were representing themselves as their own counsel.

Whether or not factually their disturbances were so tumultuous that would require an Allen type of gagging, I am not really prepared to say because I wasn’t there, I have the record there.

The record is in somewhat of a contention as to exactly what was the genesis of this confrontation between the defendants and the justice.

Chief Justice Warren E. Burger: Did you say it took six weeks to try this?

Mr. John J. Dean: I think it’s about six and a half weeks sir, yes.

The trial started in November of 1966 and concluded I think on about December the 12th of 1966 and I think there few days that the Court took of for procedural matters and other issues but essentially it was a six-week trial.

Justice William J. Brennan: Not the contempt trial?

Mr. John J. Dean: Not the contempt trial.

This was -- as I said the case was procedurally confused.

They were originally before the Court on a prison breach and holding hostage in a penal institution.

During that trial in 1966 --

Justice Potter Stewart: They committed several contempts?

Mr. John J. Dean: Contempts, these are the contempts that are currently before this Court.

Justice Potter Stewart: And we’re involved in this case only with the contempt trial?

Mr. John J. Dean: That’s right, only with the contempt trial.

What then happened was that they appealed to the Supreme Court of Pennsylvania which affirmed the conviction.

They petitioned this Court for a writ of certiorari which was granted.

This Court heard the case and in January of 1971, in an opinion by Mr. Justice Douglas remanded the case back to Pennsylvania for a public trial for the words that were used.

The case lay dormant --

Justice Potter Stewart: Now, is that only Mayberry?

Mr. John J. Dean: Mayberry was the only petitioner really before the Court directly, although he under the order seem to drag in Codispoti and Langnes with him.

What makes this case confusing now is Mayberry is no longer here, it’s just Langnes and Codispoti.

Justice Potter Stewart: And what happened to Mayberry?

Mr. John J. Dean: Mr. Mayberry chose not to go to this Court.

I can’t really offer you a rationale explanation of that action, but we now --

Justice William J. Brennan: Is he part of this case?

Mr. John J. Dean: No, he’s not Your Honor.

Justice William J. Brennan: But he was to the --

Justice Potter Stewart: He was the only party in the first case?

Mr. John J. Dean: Yes, Your Honor, in the first case that we had he was a sole party.

Justice William J. Brennan: No, what about this contempt proceeding, was he involved in this?

Mr. John J. Dean: Yes, Your Honor.

What then happened was when the case was remanded back in January of 1971, Judge Fiok who was the trial judge in 1966 against whom the original contempts were leveled, on December 7 of 1971, almost a year later issued a citation which was to be served by registered mail upon the three defendants scheduling a hearing, separate hearings for each of the defendants on anywhere from December 12 to December 17.

Mr. Mayberry went the trial first in front of Judge Vandervort, then Mr. Codispoti went to trial then Mr. Langnes went to trial.

They had separate individual trials or hearings depending on how you’re going to characterize it.

Justice William J. Brennan: And Mayberry was again convicted, wasn’t it?

Mr. John J. Dean: Mayberry was again adjudicated in contempt of Court and sentenced.

Justice William J. Brennan: A sentence comparable of the one than the first?

Mr. John J. Dean: No, Your Honor.

What occurred in that case was that by the expedient of giving a six-month sentence and by making them consecutive, Mayberry was again convicted on all of the charges that he was originally cited for by Judge Fiok and given 11 to 22 years sentence but Mr. Mayberry came up with something like a -- I think a four-year two-month sentence was his sentence.

Justice William J. Brennan: And he had -- didn’t seek review of that?

Mr. John J. Dean: He again appealed that sentences to the other ones to the Pennsylvania Supreme Court which this time affirmed pre curiam with judgment of contempt.

However, they -- one justice did dissent based upon the United States versus Seale rationale.

At that point, Codispoti and Langnes petitioned this Court for a writ of certiorari which was granted, which is why we are now up here in front of --

Justice William J. Brennan: But Mayberry will serve his four years and two months whatever it is?

Mr. John J. Dean: Evidently, Your Honor.

Justice William J. Brennan: In any event, he didn’t seek review of it?

Mr. John J. Dean: I was court-appointed counsel.

Mr. Mayberry has refused to talk to me during some of these proceedings so I am somewhat hard pressed to give you [Attempt to Laughter] a viable rationale --

Justice William J. Brennan: Well, he is not here?

Mr. John J. Dean: He is not in front of the Court.

At this time all we have are Codispoti and Langnes.

It is important perhaps to get into some of the facts of this particular case because of the arguments advanced, all of the trials of Mayberry, Codispoti, and Langnes were exactly similar.

In other words, I don’t think there was a substantial difference between one or the other.

Mr. Langnes had or Mr. Codispoti, excuse me, had come in and requested that counsel of his own choice be there to represent him.

The Court said but where is your counsel and the counsel was in Philadelphia and the Judge Vandervort said, “Well, he’s not in the courtroom now, you have a public defender, go proceed with him.”

Mr. Codispoti had said that he didn’t have any notice of this hearing really until he was brought in to Pittsburgh, Pennsylvania the morning of the trial that he had written the trial judge, Judge Fiok twice after the remand saying, what are you going to do or words to that effect and had received no reply.

Mr. Codispoti then requested a jury trial and in exactly similar language that the Court had used for Langnes and Mayberry said, the Court; I regard this issue Mr. Codispoti as an issue between the Court, not any particular judge but between the Court and you and I think the record should speak for the Court and you can speak for yourself and I am going to refuse your motion for jury trial.

Evidently, these people had some idea because they had known what had gone on before.

Mr. Codispoti then said, “Well, I would like some defense witnesses who were present during the original arbitration between Judge Fiok and myself, present to testify in my behalf.”

At the second hearing he was denied under these words the Court; I am going to refuse your motion to subpoena witnesses for the reasons that I told you.

I think that this is an issue between the Court and you and the record will speak for the Court and you and your counsel can speak for yourself.

And this is what happened in every single trial that came along.

So with those words, they were denied the right to a jury trial, they were denied the right to present defense witnesses, and they were entitled to speak for themselves, the record will speak for the Court.

They weren’t even permitted to call the trial judge who simply resided maybe 50 or 65 feet in a courtroom immediately adjacent to the courtroom where the trial was being held.

That brings us to the issue here.

They were found and adjudicated guilty on all of these contempts of Court.

On one of them, they received two months and on one of the contempts charges, they had received a sentence of six months.

Mr. Codispoti, for some reason that’s not quite apparent to me was sentenced to a year for one contempt and the Court has set out in the appendix had simply said we sentence to a year for Citation Number 5 or whatever it was.

Approximately, a month later the Court revised this “rough draft sentencing” to make it down into six months.

All of the sentences ran consecutively and therefore they were imprisoned approximately from three to -- two to three years, give or take a few months one way or the other.

And that brings us somewhat so through this route in order to a appreciate the issues here, the question of when there are -- when there is a single trial for a multiple contempts that have occurred during a particular trial, does the person’s right to a jury trial depend upon the aggregate sentence received, in this case several years, or does it depend upon the individual sentences received namely a six-month sentence which is aggregated into a three-year sentence.

We would suggest to this Court that when there is one single trial that the appropriate remedy is to look at the penalty imposed in the total because it makes little difference to the man who is sitting in jail to say, “Oh, you’re only in jail for six months but you’re in jail six months 10 times, than to say that you’re in jail for five years.”

It makes absolutely no difference to him in regards to the length of his incarceration.

Justice Harry A. Blackmun: Mr. Dean, the case that you’re (Inaudible) on Mayberry’s behalf we’re talking about 20 to 22 years then to, aren’t we?

Mr. John J. Dean: We’re talking about 11 to 22 years sir.

He was given a one to two-year sentence on each contempt.

Justice Harry A. Blackmun: And did the opinion devote itself at all to jury trials on this issue?

Mr. John J. Dean: No, Your Honor, not directly.

The concluding words of Mr. Justice Douglas were that it was to be remanded back for a public trial.

There was some discussion in the lower court whether the words public trial were to be interpreted as to mean jury trial.

The trial judge, Judge Vandervort decided that it did not mean a jury trial.

Justice Harry A. Blackmun: Do you think that there is any significance in our failure to discuss it at all?

Mr. John J. Dean: Your Honor, I think it would be presumptuous of me to try to impute the reasons for this Court as to why they did a particular action in a particular case.

I don’t think it does, to answer your question however.

I don’t think it has any direct significance because I don’t think the problem was essentially before this Court.

I would like to think that the words public trial meant a trial by jury and that the Court did not believe that all of a sudden these people were not to have a jury trial on these contempt charges.

Justice Harry A. Blackmun: Incidentally, were there any further contempts citations during the contempt trial?

Mr. John J. Dean: There was one Your Honor.

They were somewhat obstreperous and one of the defendants was given a chance to recant and he had cast impolite language upon the competency of Judge Fiok and the Judge asked him if you wanted to -- Judge Vandervort asked him if he wanted to recant as to the mental ability of Judge Fiok.

He did that by saying that he found somebody or perhaps lesser mental ability than Judge Fiok which was the present trial judge.

[Laughter Attempt] I don’t think that was really the recantation that they expected and he received another six months sentence for that slight outburst.

Justice Harry A. Blackmun: Well, I was looking at the material on page 48 and so forth of the record but there was no formal contempt to your man Codispoti?

Mr. John J. Dean: Yes Your Honor, he was sentenced to six, I believe it was Codispoti was sentenced six months or Langnes.

I am ruling out certain roots because the trials were so similar adverse occurred.

To my knowledge and I was present at those trials or most of those trials, only one of them was given an additional sentence.

You see Your Honor, in some sense as Mr. Codispoti said he had been up there, he’d requested very politely this and then it’s in page 5 of our brief have been denied his --

Chief Justice Warren E. Burger: Where does he make the request politely, on what page?

Mr. John J. Dean: You mean within here sir?

Are the request politely?

Chief Justice Warren E. Burger: Yes.

Mr. John J. Dean: Or you mean for jury trial and so forth?

Chief Justice Warren E. Burger: Well, any request that he made politely then?

Mr. John J. Dean: Alright, on page four of the brief, Your Honor are the -- I am sorry appendix 43, excuse me as where in the appendix it would be for Mr. Codispoti, he starts up here.

I would say it would be reasonably polite as a trial lawyer he had requested to the jury trial, but the Court said, “No, you can’t have it.”

He had then on around pages 45 approximately at the middle of the case said that according to Baldwin versus New York and Bloom versus Illinois and Duncan that he would like a jury trial and that he’d be given 14 years and he thinks that it was relatively serious crime at that particular point.

The Court said that it is just between you and the Court.

He then asked for witnesses and I assumed that that was a relatively polite request, appeared nothing out of the ordinary for me, at least nothing that would certainly shock the contents of the Court to disrupt these procedures.

What then did occur is we have an evaluation of the trial judge at least if he had been polite because on page 47 Mr. Codispoti states to the Court --

Chief Justice Warren E. Burger: Going back to 43 where you’ve said his conduct was polite, do you regard it as polite conduct when he suggests to the Court that the judge and the prison authorities are engaged in a conspiracy to railroad him, at the bottom of 43?

Mr. John J. Dean: Well, Your Honor, perhaps that -- alright I will not say that’s the most polite way.

Polite I meant in response to your question of failure to use obscene language.[Attempt to Laughter]

The language got to be a little bit probably make a stevedore blush after a while.

Chief Justice Warren E. Burger: Yes, we have observed that.

Mr. John J. Dean: But it any event, he does say here on page 47, there is one thing and this is Mr. Codispoti saying, there is one and this is after he has been denied this, “there’s one thing I want to make clear.

I came in this courtroom trying to be respectful right” and the trial judge answers, “You have been” which until that point Mr. Codispoti’s behavior will perhaps not within the standards of conduct one would expect from an attorney had not been the obstreperous that had attended these other litigations in Court.

And he says, “Now you that know I have 90 years and really another 10 to 20 years on top of a 90 years sentence, the words are to the effect is not going to certainly sway him one way or the other.

I think it’s important to understand --

Justice Thurgood Marshall: What part of 47, let’s skip it.

Mr. John J. Dean: Yes, sir.

That’s what I meant by saying that he was relatively polite in the beginning.

Unfortunately, that language did attend most of these proceedings.

This gentleman, I think has spent I would say consecutive 25 years in prison.

Perhaps, in the some instances it is strange.

This entire group has started out rebelling against prison authority.

Mayberry was incarcerated at age 12 for being a dependent neglected child and he has never escaped from the penal authority sentence since he has been engaged in one continuing arbitration after another.

In some sense in trying these people for contempt of Court case would almost be like beating a masochist with whips for punishment.

I mean, you bring these people into a courtroom and unfortunately you’re giving them an opportunity to go on and do things which they don’t really have.

Chief Justice Warren E. Burger: Well, are you suggesting we should -- that they should not have been brought into a courtroom?

Mr. John J. Dean: Your Honor, if it were my personal opinion, I feel they are very sick individuals.

I don’t think that their conduct is in anyway justifiable.

I don’t think it’s really the conduct that one will expect of a rational human being.

I think these people have an extreme problem.

I don’t think the legal system is really within the system of punishment and imprisonment the way to effectively handle these individuals --

Chief Justice Warren E. Burger: That was what I had in mind when I was reading pages 46, 47 and 48 in that area when I asked you whether the judge, if he cared to say would’ve been justified in binding and gagging them and then having a lawyer go ahead and conduct the proceedings on the basis of the prior record.

Mr. John J. Dean: In the Judge Vandervort proceedings what you’re talking about, I thought the original you’re talking about the Judge Fiok proceedings.

Chief Justice Warren E. Burger: No.

Mr. John J. Dean: I am sorry, Your Honor.

Eventually, the defendants were excluded from the courtroom in the course of these trials.

Chief Justice Warren E. Burger: Yes, did the judge have any other choice under Illinois against Allen?

Did the Court rely on Illinois against Allen by the way?

Mr. John J. Dean: Not to my direct knowledge Your Honor, no.

I am somewhat hazy on the rational that Judge Vandervort did use to determine whether or not he could exclude the defendants but effectively he did exclude them.

He had them placed in an ante room with a loudspeaker so they could hear what was going on for the entire proceedings.

But if I may, the situation that we would like to say, is that under situations such as this particular case that where people do receive a cumulative sentence that there are several strong policy reasons why this Court should demand a jury trial in an aggregated sentence.

Generally, the reasons for petty cases not being required to have a jury trial is maybe that they’re too small to really worry about that a couple of days, we can’t worry about judicial economy.

We have to make sure the Court schedule flows well.

But as I suggested to the Court earlier that has a relatively hollow ring to man incarcerated for three years.

There was also the problem that generally the power of the court to punish direct criminal contempts that occurred incur in front of it can be grounded in a prophylactic rule that at least it will begin to restore order to the courtroom in an abstractor situation because of the immediacy of punishment it’s the act that is deterrent to future conduct.

But in this particular case or in any case where the individual contempt problems are accumulated and then tried subsequent or termination of the main judicial proceeding, that prophylactic rational has no longer any viability.

Finally, the real problem in this is the problem of judicial abuse.

I was sitting down talking with some lawyers and they said it to me that ours is probably the only profession in the world where a trial lawyer can be put in jail for being late for work because if you come late in front of the Court, its well within the competency of the judge to put you in jail and there’s probably no other single profession where that penalty is imposed for being late.

Justice Byron R. White: Perhaps in the military.

Mr. John J. Dean: [Laughter Attempt] Perhaps in the military but often times do not in the military voluntarily, but at least you haven’t been in the past that was not a matter of choice being in there.

Justice Byron R. White: I have most of mine now.

Mr. John J. Dean: That’s probably true at this point at least most of them are.

However, would surrender that necessarily get out their discretion.

But the problem was that these people viewed Codispoti, Mayberry and Langnes have viewed the prison authorities as you stated, Mr. Chief Justice, are working together, being in a league against that what they want is some appearance of impartiality and as the Court can tell from the way that these proceedings went Codispoti’s frustration was obviously eminent in the language that we wrote from the appendix 47, that his problem was that he wanted a fair trial and exactly the same thing happened in everybody’s trial.

They asked for the jury, it's denied.

They asked for witnesses, it's denied.

They asked for counsel, it’s denied.

They are told to go to trial with appointed-counsel right now and at least I am not saying that a jury may have arrived at different determination than the trial judge did.

I don’t think that’s really a central issue here.

It’s not a question legitimately before this Court, but what the problem is that at least if there was a jury interposed between the judiciary who happens to be not only the prosecutor, not only the person who presented the charges, not only the trier of fact but also the imposer of sentence, to at least get a third party in there in the fact-finding position has a lot to recommend it.

And also, it’s very difficult to insulate one judge who was worked with another judge say for 20 years and say that he is going to be the completely impartial arbiter of dispenser of justice that our American legal system tends to look upon the judiciary.

Justice William H. Rehnquist: But didn’t you argue in Mayberry that that was what should be done there, send it back for trial before another judge?

Mr. John J. Dean: Yes, Your Honor, I did not argue Mayberry originally before this Court, but it is my understanding that was argued and that’s what was done.

It was sent back for a trial in front of another judge which was done in this particular case.

What I’m suggesting however, is that --

Chief Justice Warren E. Burger: You want another judge and the jury?

Mr. John J. Dean: Another judge and the jury is what we would like in this particular instance.

There is another question --

Justice Potter Stewart: Did Mayberry say anything about this issue?

Mr. John J. Dean: No.

Which Mayberry opinion you’re referring to?

Justice Potter Stewart: Well, I’m talking about the opinion in our Court, the Court opinion in our Court.

Mr. John J. Dean: Say anything about this particular --

Justice Potter Stewart: We remanded it for a trial before another judge -- judge other than the judge who tried the original criminal trial.

Mr. John J. Dean: Yes, Your Honor.

Justice Potter Stewart: And in a public trial, did it say anything at all about the --

Mr. John J. Dean: A jury trial?

Justice Potter Stewart: A jury trial.

Mr. John J. Dean: No, Your Honor.

Justice Potter Stewart: One way or the other?

Mr. John J. Dean: No, not to my knowledge, they did not say that there was --

Justice Potter Stewart: That was my recollection, I am sure.

Mr. John J. Dean: -- it was not to be a jury trial in this particular case.

Justice William J. Brennan: I take it.

Your view were to prevail, the other judge would be in a position if they had multiple counts in the citation.

Almost inevitably and having to have a jury trial because his only alternative would be then than there to decide that however many of the counts was other than guilty convictions, no sentence would be more than six months and all sentences would be concurrent?

Mr. John J. Dean: I am sorry -- I understand exact the exact thrust of your question.

Justice William J. Brennan: Well, I gather your -- basically you say because by imposing consecutive sentences on a number of counts, you get in excess of six months without a jury trial and constitutionally that can’t be done, is that correct?

Mr. John J. Dean: That’s right, Your Honor.

Justice William J. Brennan: And what I’m suggesting is when the other judge gets as he did here a citation with multiple accounts, but were 11 here or something?

Mr. John J. Dean: Yes well that it varied among the individual [Voice Overlap].

Justice William J. Brennan: Whatever the number was, isn’t his choice whether to have a jury trial going to require him then and there to decide that no I won’t give a jury trial because what I’ll do if I find guilty on any count is to impose not more than six months sentence on any count and make all sentences concurrent.

Mr. John J. Dean: Your Honor he can do that.

I don’t think that’s a rational that you’re going to encourage.

Justice William J. Brennan: But do you suggest he could not do that and deny a jury trial if he decided that’s what he was [Voice Overlap]

Mr. John J. Dean: Obviously, he could do that, Your Honor.

I mean there’s no two ways.

The problem with the six months aggregation rule is that you have one may be very serious contempt charge weighed with several minor charges and the Court instead of affording a jury trial in the series contempt charge can allocate the total sentence into six months pieces apart and thereby effectively deprive a person to jury trial.

I do not think the judiciary should be encouraged, the lower court judiciary to be encourage to deprive people from jury trials so that lift the views of consecutive [Voice Overlap].

Justice William J. Brennan: Well, what I am suggesting Mr. Dean, is I would think sitting as a trial judge but I have to say to myself when I get 10 to 11 counts in the citation, I better have a jury trial since obviously if he is guilty on any substantial number of them, six months may not be enough or say to myself well I would have a jury trial because I will decide now that however many counts I find them guilty, I’ll impose concurrent sentences none in excess of six months.

Mr. John J. Dean: I will just -- I would think that would be not acceptable approach to the problem.

Your Honor, if I can I like to reserve my time.

Chief Justice Warren E. Burger: And then I think we -- the subject came up in the Mayberry case that I have forgotten the answer, does Pennsylvania have a statute on obstruction of justice by way of conduct to this kind?

Mr. John J. Dean: Not of that particular time, no Your Honor.

There is no applicable statute governing back an obstruction of justice.

Chief Justice Warren E. Burger: Very well, Mr. Dean.

Mr. Eberhardt.

Argument of Robert L. Eberhardt

Mr. Robert L. Eberhardt: Mr. Chief Justice and may it please the Court.

First, I would like to thank the Court for the opportunity to argue this cause before the Court.

I specially, I too would like to first go into some of the factual background if I may.

The original contempts in this case occurred in 1966 during a six -- five or six week-trial on prison breach charges in which the three defendants Mayberry, Codispoti and Langnes committed, Mr. Mayberry committed 11 contemptuous acts by citation of the trial judge, Mr. Codispoti by citation five or six contempts and Mr. Langnes a total seven contempts.

As counsel for the petitioner has stated this was in 1966.

There was an appeal to the Pennsylvania Supreme Court and affirmance.

Mr. Mayberry chose a petition to this Court and the final decision by this Court in January of 1971.

We have set forth in our briefs the relevant, we think language from that decision as directions to the lower court and that language if I may quote, the Court states that, “Our conclusion is that the defendant to paraphrase --

Unknown Speaker: What page are you reading?

Mr. Robert L. Eberhardt: On my brief it’s on page 4 and 5 of the Commonwealth’s brief.

The Court through Mr. Justice Douglas states, “Our conclusion is that by reason of the due process clause of the Fourteenth Amendment a defendant in a criminal contempt proceeding must be given a public trial before a judge other than the one involved by the contempt nor citing in Re Oliver.

In the present case, that requirement can be satisfied only if the judgment of contempt is vacated so that on remand another judge not bearing the sting of at least slanderous remarks and having the impersonal authority of the law sits in judgment on the conduct of petitioner as shown by the record.”

I quote that because it’s very important to the actions that the judge -- the second judge took when this case was remanded to the Court of Common Police of Allegan County.

Justice Potter Stewart: Was that written after this Court’s decisions in Baldwin and Duncan and Bloom?

Mr. Robert L. Eberhardt: Yes.

Justice Potter Stewart: And against the person of those decisions --

Mr. Robert L. Eberhardt: Right and I would indicate to the Court that the reason I bring this out also is the fact that this case arose prior to many of decisions that are argued in our briefs and those decisions being the Baldwin decision and the Seale decision and other decisions that have come up regarding contempts.

The trial judge at the trial for the prison breach charges was acting only on -- the only decision that has come down from this Court to have been the Chef decision and the trial judge felt that he was acting fully within his powers in sentencing them on one to two years.

Now, that sentence was reversed by this Court, was vacated and the used sentence was imposed by another judge.

Now, the Judge Vandervort who imposed the six months sentences that no sentence ultimately was longer than six months against either of these two petitioners relied upon the prior decisions of this Court and I might add the Seale decision had not been decided at the time of the sentencing of these six-month sentences.

Now, on remand these sentences were imposed and as the Court has observed, the petitioners again engaged in the conduct which I would personally categorize as contemptuous and in the record on page 76 probably the most violent act was recorded when petitioner Langnes after being told by the trial judge that he was holding in contempt of Court for his language directed at the Court, threw a microphone at the Court, fortunately it did not hit the trial judge, but that indicates somewhat I think the type of defendant that is involved in this case, but that is not relevant.

Justice Thurgood Marshall: Assault, criminal with separate crime, why didn’t he try him for assault?

Mr. Robert L. Eberhardt: I don’t know the rational of the trial judge in this case.

He did not at that moment sentence him for that act of throwing a microphone.

He was sentencing him for a contempt for his language directed at the Court.

Continuing with the history of case, the case then went up for an appeal to the Pennsylvania Supreme Court and finally to this Court.

Several reasons were alleged in the petition for cert, but this Court limited its grant of -- to the petition to two questions.

The first being whether or not these sentences that were given to these petitioners should be aggregated in order to determine the right to a jury trial.

The basis for this is that all of these offenses are somewhat linked as single offense.

The commonwealth would point out some of the factual things in this record to show that there were several offenses involved here.

The trial as I indicated did occur over period of five to six weeks, the contempts occurred on various times during that six-week period and were not continuous, but they were occasional throughout this period.

Co-defendant Mayberry of course committed the 11 acts, but the petitioners here one committed six acts, the other committed seven acts.

They occurred over a period of six weeks.

It's the commonwealth’s position in this matter that they are identifiable as separate offenses and are not part of one continuous act and we have indicated in our briefs that we do not look upon the acts of these petitioners as Judge Cummings did in the Seale case where the defendant in that case based most of his contemptuous conduct on the fact that he was deprived of his right to counsel during the trial, the particular counsel that he wanted and that all of the actions of the defendant in the Seale case were premised upon that fact.

Here, the petitioners engaged in several different acts of contempt directed toward the Court and based on various things that they found to be objectionable during the trial.

I would point also to this Court’s prior opinion in the Mayberry case for a solution to the question of impartiality.

The trial judge in the original prison breach trial against whom the contempts were directed was found by this Court to be not capable of being impartial because of the acts of the defendant committed and aimed at the trial judge.

We have a proceeding on remand before another trial judge.

That trial judge cannot be said to have been affected by the decision, by the acts of the petitioners and although the transcript of the Mayberry proceedings are not before this Court.

In the hearing on the Mayberry contempts, Mr. Mayberry being very knowledgeable of the opinion written by this Court in his case informed the Court after he had committed another contemptuous act before Judge Vandervort that he motioned the judge, Judge Vandervort to now disqualify himself from sitting in judgment of Mr. Mayberry because he was now been the object of the scorn of Mr. Mayberry and therefore must now disqualify himself from hearing it.

Unknown Speaker: (Inaudible)

Mr. Robert L. Eberhardt: We could have a continuous operation with knowledgeable defendants knowing that by their own acts direct at the Court they could prejudice the Court in the eyes of an appellate court and require another hearing and perhaps hearings continuing and continuing on forever I would submit.

Chief Justice Warren E. Burger: The Mayberry opinion undertake to carve out any time zones on the contempt --

Mr. Robert L. Eberhardt: Your mean factually?

Chief Justice Warren E. Burger: Yes.

Mr. Robert L. Eberhardt: No, I only can point to the record to show you that the citations presented by the trial judge indicate the different days and times throughout the trial that these occurred.

I attempted to completely read the original prison breach transcript but it -- that goes over a period of 3000 some pages and my belief is that this a series, not a series of offenses but a group of individual offenses that's based upon the length of trial, the periods during which the trial continued on without interruption then all of a sudden there would be an action by one of the defendants.

I would like to address myself to the Seale decision for a minute.

The petitioners base their argument on the first issue presented to this Court on the rationale of the Court in the Seale.

I would like to point out several basic fallacies with that rationale.

First, being that the Court in Seale seems to assume that the trial judge is going to abuse the contempt power.

It seems to me that that opinion is based upon the fact that the trial judge has given the power to summarily sentence a defendant for a contemptuous acts, direct criminal contemptuous acts that that trial judge will abuse that discretion.

I take exception with that and would argue that the traditional appellate review of abusive discretion is available to a defendant and that the Courts can find those abuses and correct them.

I think it is very bad basis for the decision in Seale that the trial judge is assumed to be subject to abusing his discretion.

As far as the second issue is concerned the commonwealth, first of all would take some exception to the phrasing of the issue.

The issue was phrased in terms of a substantial term of imprisonment.

The Pennsylvania contempt statues do not provide for a maximum sentence.

Theoretically, I suppose that it could be argued that the defendant could subject himself by contempt, direct criminal contemptuous act to and unknown sentence, the maximum for which is not provided by statute.

Justice Byron R. White: I take it -- there’s no issue here -- let’s assume that there had been one sentence for a contempt, only one count of contempt and the sentence of a two years for it , would he had been entitled to a jury trial?

Mr. Robert L. Eberhardt: Yes, I think so.

Justice Byron R. White: That is because the second the trial to place after Bloom?

Mr. Robert L. Eberhardt: Well, the first trial occurred before this --

Justice Byron R. White: That is in 1966 --

Mr. Robert L. Eberhardt: We have submitted for the Court’s consideration an argument in our brief based upon the rationale in the case of Jenkins v. Delaware.

Justice Byron R. White: Yes.

Mr. Robert L. Eberhardt: The rationale there was that the Miranda decision should not be applied to retrials.

Justice Byron R. White: Well, that’s a different -- but jury trial is a question about the procedures at trial not about the procedure before trial?

Mr. Robert L. Eberhardt: That is true, that is true and of course the constitutional question of the right to jury trial is an important question.

However, we would submit that the commonwealth in this case proceeded under the case law then existing --

Justice Byron R. White: In 1966?

Mr. Robert L. Eberhardt: In 1966 and that the trial judge in sentencing at the end of the trial, I don’t know what went through its mind at that time.

He could’ve sentenced, he could’ve find -- cited him for contempt during the trial and apparently under the Seale decision that would have been alright to sentence him the six months and another contempt another six months, another contempt other six months and be consecutive and that would be fine.

But by waiting to the end of the trial, Seale decision and the argument of the petitioners, they would seem to indicate that that would have to accumulate.

Justice Byron R. White: But were these defendants tried twice for contempt?

Is that was first sentence set aside, was the first trial?

Mr. Robert L. Eberhardt: The opinion of this Court and the order of this Court was vacated and remanded.

Justice Byron R. White: And it went back to the trial court.

Mr. Robert L. Eberhardt: It went to another judge, the trial judge.

Justice Byron R. White: And so that was a new proceeding to the judgment that have been vacated?

Mr. Robert L. Eberhardt: I say that the sentence was vacated because this Court --

Justice Byron R. White: The judgment was vacated.

Mr. Robert L. Eberhardt: The judgment of sentence --in Pennsylvania, I suppose and most other jurisdictions they appeal on criminal cases from the judgment of the sentence.

Justice Byron R. White: Well, I would suppose that the judgment was vacated, the judgment is conviction would they --

Mr. Robert L. Eberhardt: Right.

The sentence that was imposed is the appealable. Once the sentence is imposed the appeal time starts to run.

Justice Byron R. White: No, but the new judge had to find whether again he had to make determination again whether he had been held and whether he had committed contempt.

Mr. Robert L. Eberhardt: Right and he did so, on the basis of the record.

Justice Byron R. White: So that was a new trial court proceeding?

Mr. Robert L. Eberhardt: Well, he didn’t make a new finding of appeal of contempt.

Justice Byron R. White: And at that point the Bloom I guess they only have been decided prior to that?

Mr. Robert L. Eberhardt: At that point Bloom have been decided.

Justice Byron R. White: And the question was then in for carrying out this proceeding must I proceed consistently with Bloom?

Mr. Robert L. Eberhardt: Correct.

Justice Byron R. White: And your contention is that you need not have a jury trial because no particular contempt do more than a six months sentence?

Mr. Robert L. Eberhardt: That is our basic [Voice Overlaps).

Justice William J. Brennan: Well, may I ask also Mr. Eberhardt, your Supreme Court on the first appeal in the Mayberry case before the case came here relying on our -- the Stefano that Bloom was perspective only sustained the consecutive sentences initially imposed on Mayberry.

Now, when after the second trial, it went back to the Supreme Court of Pennsylvania.

I notice that there is a one sentence per curiam, the judgments of contempt are affirmed.

Did you argue before the State Supreme Court that the same rationale that Bloom was not but retroactive required affirmance of those convictions?

Mr. Robert L. Eberhardt: We did argue that among other things.

Justice William J. Brennan: And we have no way of knowing.

I see that Judge Mandarino was the only the dissenter.

Whereas in the first trial Mr. Justice Roberts and I think Mr. Justice O’Brien took the view that they concurred only because Bloom was not retroactive.

Mr. Robert L. Eberhardt: Right.

Justice William J. Brennan: But how are we to read this judgment of contempt that are affirmed on the second go around?

Mr. Robert L. Eberhardt: I wish I had an opinion to present to the Court.

It would help me considerably and help the Court.

Justice William J. Brennan: But you did in any event argue that for the same reason --

Mr. Robert L. Eberhardt: Yes, we did and I have a copy of the brief that we submitted before the Pennsylvania Court.

Justice William J. Brennan: Yes, and you repeat that argument here as I read page 15 of your brief, don’t you?

Mr. Robert L. Eberhardt: Yes, we do and I would submit that the Pennsylvania statute although it is open-ended, I believe that the decisions of this Court look to the actual sentence imposed and I think that the Court should continue to do so and I would finally suggest to the Court that when the trial judge does decide to proceed non-jury without a jury on a contempt or several contempts where he awaits to end of trial, I believe that he is indicating to the defendant and to his counsel constructively that he is not going to consider these from reading of the citations.

He is not going to consider these contempts as serious but as petty and under six months sentence or six months sentence or less is all that he will consider to be imposed and that the second issue that is presented by the petitioners, there is a strong possibility or substantial possibility of long-term of an imprisonment.

I don’t believe it is so except that the fact that a defendant by himself creates a number of contemptuous acts, separate contemptuous acts and the mere fact that they are tried together by the Court may subject him to a substantial term of imprisonment that would being over six months, but the fact that they are tried together, I don’t believe has any bearing upon the fact that they are individual offenses and not one continuous act.

Chief Justice Warren E. Burger: Do you think there is anything in Mayberry or the cases prior to Mayberry that are discussed here that prevents a citation for each individual episode of contempt to be tried separately whether it was embraced within the day or one episode and then in the case of 11 contempts on 11 separate days to try him seriatim one after or another for each contempt without a jury on a summary proceeding give him six months on each one and if the judge is -- the new judge wanted to make them consecutive to go ahead and do so?

You seem to be the Mayberry that would preclude that or in other cases?

Mr. Robert L. Eberhardt: No, I don’t Mayberry itself speaks to the impartiality of the judge and the decision to Mayberry I think assists the trial courts in determining whether or not the trial judge who is -- to whom being contemptuous acts are directed and personally directed must disqualify.

Chief Justice Warren E. Burger: Do you think that you have to get new judge then for each case under Mayberry?

Mr. Robert L. Eberhardt: Well, under Mayberry I believe that that is direct decision and Mayberry was --

Chief Justice Warren E. Burger: At least it implies that that might be necessary?

Mr. Robert L. Eberhardt: It might be but I think it talks more in terms of waiting to the end of trial that is another point that we dispute to Seale rational making a difference between the end of the trial and during trial.

The petitioner makes an argument regarding the abuse that can occur at the end of the trial stronger than the abuse that can occur by citing the sentencing during trial.

Chief Justice Warren E. Burger: Isn’t there an important reason why the contempt proceeding is deferred until the end of the trial whether it’s directed against the defendant or against his lawyer?

Mr. Robert L. Eberhardt: Well, in the case of an attorney, it’s very important not to prejudice the defendant in the eyes of a jury by citing an attorney representing a defendant for contemptuous acts during that trial.

In this case, the defendants were acting as their own counsel and the trial judge may have felt that he would be prejudicing the defendants in the minds of a jurors by citing the sentencing them during the trial and that he deferred that until the end of trial so there as not to prejudice their defense or to enhance the commonwealth's case before the jury.

I think the distinction between during trial and end of trial citing the sentencing, there reasons for doing it during the trial and the reasons for doing it at the end of the trial and I think each individual case demands review and I think appellate review is available and pieces of discretion --

Justice Thurgood Marshall: Do I hear at one point they put them out of the room, put them out of the courtroom?

Mr. Robert L. Eberhardt: During the prison breach trial in which he committed to contempts, yes.

Justice Thurgood Marshall: Well, isn’t that one way to solve the problem rather than given him a hundred years?

Mr. Robert L. Eberhardt: I believe that is a -- the trial judge of course for this time was acting without the benefit of this Court’s opinion in Allen.

Justice Thurgood Marshall: So did the judge in Allen?

Mr. Robert L. Eberhardt: True, true.

Justice Thurgood Marshall: But the -- suppose the man cursing the judge three times, is that three contempts?

You know you keep saying in all of add on these contempts I just want to know you have contempt of Court once you get in contempt to Court, you are in contempt to Court.

Mr. Robert L. Eberhardt: This is true, but I think that the appellate courts have to look at the record and determine the court -- the same court that decided Seale case decided in re Chase and indicated that opinion that even when a trial judge cites and sentences during trial, the appellate court may have to look to determine whether or not the trial judge has --

Justice Thurgood Marshall: Do you say that in one trial it’s possible for a man to get 26 months sentence, 10 years?

Mr. Robert L. Eberhardt: If he commits individual acts of contempt that are not series of events of one type but are so continuous and contiguous in time and place and things like that that they can be identified as one continuing act.

Justice Thurgood Marshall: And you’ll end up with 10 years or 20 years?

Mr. Robert L. Eberhardt: I think the defendant himself --

Justice Thurgood Marshall: They were on treason before we get through without a jury.

This is a man going to serve 20 years without a jury?

Mr. Robert L. Eberhardt: Well, I think the Court’s interposition of a right to a jury trial is very important to defendants where they draw the line I am not sure, but I think in making a jury --

Justice Thurgood Marshall: Well, would you mind drawing in to 20 years?

Mr. Robert L. Eberhardt: If I was a defendant I might want to draw a little less than that.

I think --[Laughter]

Justice Harry A. Blackmun: Mr. Eberhardt, the defendant part on the facts do you think -- suppose this trial went a long for two days and then for good reasons it was recessed for three and the contemptuous cussing of the Court if you will took place at the first segment and then again at the second, does it disturb your sense of justice that that might be two separate contempts?

Mr. Robert L. Eberhardt: Somewhat but I would indicate that making a very strong per se rule for the trial judge to handle contemptuous acts would be very detrimental.

I think that the trial judge has to have some discretion that should impart to a judge of use of discretion.

The Chase opinion that I referred to from the Circuit Court indicated that the appellate courts must and can look to the whether or not the trial judge has by his own actions developed a series of what he had identifies as a contemptuous acts.

Justice William H. Rehnquist: Does Pennsylvania have judge sentencing or jury sentencing in substantive criminal offenses?

Mr. Robert L. Eberhardt: It's judge sentencing and I may indicate to the Court just for the information of the Court.

The Pennsylvania does have an indirect criminal contempt statute which provides for a jury trial and it does have a maximum sentence of 15 days and a hundred and/or $100 dollar fine.

In the indirect situation of course you have a act to being committed outside the presence of the Court and the determination by the legislature of Pennsylvania apparently and that is a very old statute was that a jury would be best determined whether or not the court’s order have been violated.

Justice Thurgood Marshall: Don’t you think the Allen case is going to help in the future?

Mr. Robert L. Eberhardt: I think the Allen case probably is best solution for contempt acts.

Justice Thurgood Marshall: In cases like this to get him out of that?

Mr. Robert L. Eberhardt: And the trial judge did on remand to this case one of them when Codispoti indicated that he was no longer going to abide by the decorum of the Court, he was taken into an ante chamber of the courtroom and the microphone and loudspeaker provided for him.

Justice Thurgood Marshall: Because the primary importance is to protect the dignity of the decorum of the courtroom, not any individual at law, that’s our primary responsibility.

Mr. Robert L. Eberhardt: Primary and secondary responsibility is prevent further acts of contempt.

Chief Justice Warren E. Burger: What is the longest sentence that can be imposed for a misdemeanor assault type of case in Pennsylvania without a jury trial?

Mr. Robert L. Eberhardt: Without a jury trial?

Chief Justice Warren E. Burger: Yes, Up to six months?

Mr. Robert L. Eberhardt: Six months I believe in Pennsylvania.[Voice Overlap]

I don’t believe it.

Chief Justice Warren E. Burger: Suppose the same gentleman being put out with the whole system of justice should meet the judge on 10 successive days and hit him over the head with a baseball bat, on each of those 10 successive days, would it defend your sense of justice if you were charged with 10 separate assaults?

Mr. Robert L. Eberhardt: No, it wouldn’t no, not one bit.

Chief Justice Warren E. Burger: These verbal assaults to the dignity of the Court extended over a period of six weeks or six-and-a-half weeks did you say?

Mr. Robert L. Eberhardt: Five-and-a-half to six weeks.

I believe that the commonwealth will argue against any adoption of a so called a single transaction test in the contempt area and I would further point out one additional case that the commonwealth has found in its research, two additional cases that are not cited in its brief.

One being Aaron v. State 284 So.

2d 673 in which the --

Justice William O. Douglas: 673?

Mr. Robert L. Eberhardt: 673.

Justice William O. Douglas: What State?

Mr. Robert L. Eberhardt: This is Florida and the Florida Court looked to its procedural rules on criminal contempt and ruled against accumulation of fines $500 fines to determine the right to jury trial.

]And another case that the commonwealth point out is in re Puerto Rico Newspaper Guild, Local 225 which is found at 476 F 2d 856.

It’s a First Circuit case that case --

Justice William J. Brennan: Puerto Rico, what’s that?

Puerto Rican crime?

Mr. Robert L. Eberhardt: No, it’s a labor dispute and the violation of a court order.

It’s an indirect contempt case but it does indicate non-accumulation.

Thank you.

Chief Justice Warren E. Burger: Thank you.

Mr. Dean, do you have anything further?

Rebuttal of John J. Dean

Mr. John J. Dean: Yes, Your Honor.

I think that what this shows is that somewhat high miracle characterization they can attend our contempt analysis here because one thing that -- I think has emerged in regards both of the presentations here today is that when this case originally came up to the Court, the Chief Justice of the Pennsylvania Supreme Court had termed his conduct outrageous.

Mr. Justice Douglas of this Court termed the conduct of the defendant a shock to those raised in the western tradition of justice.

He had received 11 to 22 years sentence and all of a sudden when he comes back for a trial what has become at least according to the characterizations of the our new original trial judge the Justice of the or the Chief Justice of the Pennsylvania Supreme Court and the Justice of this Court as outrageous has been transformed into a petty contempt.

And I feel that that type of labeling putting on these are crime is what brings to fore the problem of looking solely to the actual sentence received on each crime rather than the aggregate sentence because by looking at the aggregate sentence, the effectiveness, the total problem that gets up here is well before the Court.

Justice William J. Brennan: Mr. Dean, what do you think of this one line affirmance of the Supreme Court after as I understand your colleague haven't urged that the non-retroactivity of Bloom required or permitted in any event affirmance of the consecutive sentences.

Mr. John J. Dean: I argued the case Your Honor in front of the Court.

That issue was raised.

I had cited the Court’s previous opinions of two of the justices who were currently on the Court in both instances and I can give you no possible explanation.

Justice William J. Brennan: Well, if that were the basis of the affirmance, have you any comment?

Mr. John J. Dean: That Bloom was not retroactive?

Justice William J. Brennan: Yes.

Mr. John J. Dean: I just don’t think that’s a correct legal reasoning.

Justice William J. Brennan: Why?

Mr. John J. Dean: I think it has to be retroactive because it was such a fundamental right --

Justice William J. Brennan: But the Stefano held it was not retroactive.

Mr. John J. Dean: Well, let me say this, I used the wrong the choice of words there.

I don’t think retroactivity is a real problem first of all because the trial was occurring subsequent to that.

I don’t think retroactivity really gets in to this issue but even assuming that retroactivity did get into the issue, the test of this Court has used to see whether a constitutional right shall be applied retroactively are usually would it result in changes in the police procedures, would it result in considerable disruption, would it result in releasing other criminals or things like this.

And I don’t think any of the tests under the Linkletter approach have any negative value to stop this from being applied if you want to use that characterization retroactively.

I think it could easily be applied retroactively.

It is my understanding of Pennsylvania law that we were require jury trial for all crimes.

We just have a new felony code.

Before we had felonies and misdemeanors, we now have them graded felonies and graded misdemeanors.

Any misdemeanor requires a jury trial in our Court.

Justice Byron R. White: Do you still have an open-ended -- is it still open-ended on contempt?

Mr. John J. Dean: There’s absolutely no maximum sentence on contempt of Court.

Justice William H. Rehnquist: And even if you prevail here I take it the judge would still impose the sentence for the contempts that the jury found to have been committed?

Mr. John J. Dean: Yes, the judge is the one who has absolute discretion over the sentencing and absent a very clear abuse of discretion our appellate courts will not review a sentencing judge's determination.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Featured:

Taylor v. Hayes - Oral Argument

Thu, 23 Aug 2012 18:26:41 +0000

Case:

Taylor v. Hayes

Media File:

73-473_19740318-argument.mp3

Related Transcript:

73-473_19740318-argument

Transcript:

Argument of Robert Allen Sedler

Chief Justice Warren E. Burger: We’ll hear arguments next in 73-473, Taylor against Hayes.

Mr. Sedler, you may proceed when you’re ready.

Mr. Robert Allen Sedler: Mr. Chief Justice, and may it please the Court.

There are two basic parts to this case.

One, going to the exercise of the summary contempt's power, the other going to the right to trial by jury in cases of criminal contempt.

With respect to the first part, the petitioner contends that this Court should hold that even if the trial judge is going to be allowed to proceed summarily, there is a minimal entitlement to a hearing, notice of a charge, opportunity to respond and judgment.

Secondly, he would contend that in the circumstances of this case, the trial judge, the respondent here was so personally embroiled in controversy with the petitioner that he could not impartially sit in judgment on the multiple contempt charges that he leveled against him.

We would also ask this Court to consider, the issue having been briefed by the parties, whether the summary contempt power itself is unconstitutional.

If the Court is going to hold --

Justice William H. Rehnquist: Was that raised in the Kentucky Court of Appeals?

Mr. Robert Allen Sedler: Your Honor, not specifically.

The -- nor was it specifically raised as such in the petition for certiorari.

It seemed to me that as we were developing these arguments before the Court, it was impossible to separate the inherent unfairness in the exercise of the summary contempt power, from question such as the right to a hearing, the embroilment of a particular judge.

If I may draw an analogy, it seems that long ago, this Court has recognized that the summary contempt power is arbitrary in its nature and is subject to abuse and over the years it’s worked out various refines.

For example, under Federal Rule 42 (a) the charges must be specified.

It’s developed a doctrine of embroilment in controversy of bias.

Now, we’re asking the Court to come up with still another correction on the doctrine such as to make it clear that there is the right to a hearing.

It seems to me that the Court in so doing is merely treating symptoms, in that the Court might wish to consider in this case going to the disease itself.

And the disease, we feel is the summary contempt power which combines in it the inherently inconsistent functions of prosecutor, judge and jury and the same individual who is necessarily involved in the events leading up to the charge and this is why --

Justice Thurgood Marshall: And how would the Court maintain decorum?

Mr. Robert Allen Sedler: Pardon, Your Honor?

Justice Thurgood Marshall: How would the judge maintain decorum in his courtroom?

Mr. Robert Allen Sedler: By citing the offending lawyer or party for contempt.

Justice Thurgood Marshall: Do you think that’s enough?

Mr. Robert Allen Sedler: I think, Your Honor, that that should be a sufficient deterrent in all, but the most serious cases of persistent obstruction, which all of the empirical evidence indicates is virtually non existent.

Justice Thurgood Marshall: Well, aren’t you right now pretty being hunky you don’t need that for this, do you?

Mr. Robert Allen Sedler: This is true, Your Honor, we do not need it for this case, but I honestly feel that the problem will remain.

The problem of the embroiled judge.

The problem of the non-embroiled judge, who may try as best he or she can impartially to sit in judgment, but still cannot separate his role from prosecuting judge and trial judge.

I think that it is necessary to -- If I say so, in order to ensure proper respect for the administration of justice in this country, we must put the responsibility where it lies and that responsibility is on the Court itself.

The summary contempt power I would submit produces far more disrespect for the administration of justice than any act, a disruptive client or a lawyer could do and I think the exercise of that power in the case at bar shows the disrespect that can result.

Chief Justice Warren E. Burger: Are you suggesting, are you suggesting that the existence of this summary contempt power in some way explains or excuses the conduct of this lawyer in this case?

Mr. Robert Allen Sedler: Well, Your Honor --

Chief Justice Warren E. Burger: Doesn't this provoke him to act that way?

Mr. Robert Allen Sedler: I would take the position of going back one step before.

We -- in the first place I would respectfully dispute that there was any improper conduct on the part of the present petitioner.

The Court did not grant certiorari on the issues of whether the conduct constituted criminal contempt.

But I would submit that the petitioner here did nothing more than vigorously defend to the best of his ability his client charged with a capital offense.

But armed with the summary contempt power, the respondent in this case could proceed as an activist seeking combat, knowing that any time he got the worst of the exchange he could always invoke the summary contempt power.

I think that comes out most clearly on contempt number three where the trial judge had said to the petitioner and counsel for the other defendant, you may have this blackboard in the courtroom and you may write on the blackboard the inconsistent statements that the tape of the key prosecution witness showed and counsel and co-counsel for the co-defendant did so.

At the end of this, the trial judge suddenly says, “Mr. Sheriff, remove the blackboard from the room.”

Petitioner files an objection.

The trial judge overrules him with a sarcastic comment.

The time to -- right in front of the jury, the time to argue your case is at the close of the evidence.

The petitioner responded and replied, “I certainly keep that in mind Your Honor.”

The trial judge though had the summary contempt power.

He says contempt six months in prison.

Now this I submit is just fundamentally unfair.

It’s also interesting to note that the case that I think this part is concerned about so called courtroom disruption, the so called Chicago Seven case.

When it was tried before a judge appointed by Your Honor who was not certainly and personally embroiled in controversy, this judge found that every act of the lawyer defendants and every act of the non-lawyer defendants accept coming into Court with judicial robes that he find contemptuous was a response albeit an excessive one to preemptory action on behalf of the judge.

I think the danger of the existence of the summary contempt power maybe threefold, yet encourages judges to act arbitrarily and tyrannically knowing that they can always come down with the summary contempt power on a lawyer.

Secondly, it inhibits, it has a showing effect on vigorous and effect to that because if the lawyer was found by the trial judge to have overstepped the line, the trial judge doesn’t have to warn or anything.

The trial judge is the trial judge did in this case and just say contempt.

This causes a lawyer to pull his punches.

Thirdly, I think that the exercise of the summary contempt power causes the public to lose confidence in the administration of justice.

When the public sees a judge sitting up there as judge, jury and prosecute him and meeting out sentences totaling four and a half years, this I do think brings across the notion, well, what kind of justice is there if a judge can do this and so I think it is in the interest of the administration of justice that the summary contempt power with its inherent unfairness be given a well deserved determent by this Court.

Justice William H. Rehnquist: Mr. Sedler you say that the summary contempt power makes a lawyer tend to pull his punches up.

I take it if the judge is going to retain any control of the proceeding, there has got to be something that makes counsel for each side to pull his punches on occasion, the Court has indicated their particular line of questioning will be prohibited or something like that?

Mr. Robert Allen Sedler: Well, I think that the -- as the study of this order in the Court in the case the judge does this by maintaining control over the proceedings as the judge.

If the lawyer --

Justice William H. Rehnquist: But how does he maintain that control?

Mr. Robert Allen Sedler: Well, by ruling on --

Justice William H. Rehnquist: Well, what if counsel doesn’t follow his rule?

Mr. Robert Allen Sedler: Then the judge can say counsel, I’ve heard enough argument on this point, let us proceed.

Justice William H. Rehnquist: Well, what if counsel continues to argue?

Mr. Robert Allen Sedler: At that point, the judge has the power and should have the power, we don’t dispute that, to cite the counsel for contempt.

There is no challenge to criminal contempt.

Justice William H. Rehnquist: But no punishment can be meted out during the course of those proceedings?

Mr. Robert Allen Sedler: On the spot, on the spot.

And I would submit that just as any other social -- antisocial conduct is considered deterred by the possibility of punishment at a later date, the same should be true of lawyer misconduct.

In other words, the judge will have cited the lawyer for contempt.

The lawyer knows that as a result of that citation, you will face a criminal charge of contempt with possible imprisonment and possible bar disciplinary proceeding.

Justice Thurgood Marshall: Doesn’t he know that when he is admitted to the bar?

Mr. Robert Allen Sedler: Well he is aware.

Justice Thurgood Marshall: Isn’t he?

Mr. Robert Allen Sedler: He doesn’t have much choice.

I mean the summary contempt power exists.

Justice Thurgood Marshall: Well, I mean when he takes his oath?

Mr. Robert Allen Sedler: Well, when he takes his oath he is aware.

Justice Thurgood Marshall: He knows that if he gets out of line he is going to be punished.

Mr. Robert Allen Sedler: And punished summarily.

Justice Thurgood Marshall: No.

I didn’t say that.

As he knows he is going to be punished.

Mr. Robert Allen Sedler: Or can be punished --

Justice Thurgood Marshall: Now you say by putting additional one you are saying, we’ll try you later.

So I mean now he has got two warnings.

Well, meanwhile you are going to get it.

Mr. Robert Allen Sedler: I think that that would be enough.

What frightens me Your Honor --

Justice Thurgood Marshall: That the two warnings would be enough, the first was not enough.

Mr. Robert Allen Sedler: Well, I think the problem is not so much of question of warning.

I may say with all due respect, I think we're focused on the wrong person.

We're focused on the lawyer.

I would respectfully suggest --

Justice Thurgood Marshall: Well you want the lawyer to hold judge in contempt?

Mr. Robert Allen Sedler: Well there is an adherent --

Justice Thurgood Marshall: You want to give him that power?

Mr. Robert Allen Sedler: I think that that the problem is that judges can act arbitrarily without any realistic sanction whatsoever and I don’t think we ought to allow the summary contempt power which simply encourages them to act arbitrarily.

The real judges that will do so.

One of the things that all the empirical evidence shows is that the summary contempt power is very rarely used by judges.

Most judges can maintain order and decorum in the courtroom without any resort to the summary contempt power at all.

But the legitimate interest, obviously the compelling interest if you will, in maintaining courtroom order can accurately be maintained by citing the lawyer for contempt.

Now in the extremely rare case where a lawyer is engaged on a course of persistent disruption, finding him guilty of contempt isn’t going to do any good either.

By that time the trial as turned into the shambles and the Court should declare a mistrial.

What’s very interesting in this case is that while the respondent castigates the conduct of the petitioner and says in his brief that it surely must have prejudiced his client's right to a fair trial, the respondent not only did not declare a mistrial, but when counsel for the co-defendant claimed that the petitioner's conduct prejudiced their clients right to a fair trial, the trial judge rejected that contention and of course that decision was affirmed by the Kentucky Court of Appeals.

Chief Justice Warren E. Burger: Well, then your client moved for a mistrial?

Mr. Robert Allen Sedler: He moved for a mistrial on numerous grounds.

Chief Justice Warren E. Burger: On this ground?

Mr. Robert Allen Sedler: No, because my counsel -- my client, I would submit and I think the record will reveal, was trying to vigorously defend his client in a highly emotionally charged situation.

He was coming out against a very hostile trial judge who gave, I think the record will reveal, the prosecution of great deal of leeway.

The prosecution's case took four days.

When the case for the both defendants came up, it only took a matter of three days.

The trial judge kept saying lets move it on, let’s get it over.

You can’t call this witness, he has nothing to add.

Let’s get it on.

Let’s move it over.

Six of the eight contempts occurred during the defense part of the case.

This is the time of the case where the attorney is most vulnerable, where the attorney has to do everything that he can to protect his client, to present his case to the jury, all the while battling with the trial judge so to speak.

It’s in this part of the case that the lawyer is most apt to step over that line, the line where permissible advocacy may constitute obstruction of justice.

Justice William H. Rehnquist: Mr. Sedler, I think the way many of us learned to practice law was that if the trial judge was unfair to you or you felt that was hostile to you, you felt you have to abide his rulings, your remedy was by appeal that you could get that reversed on appeal?

Mr. Robert Allen Sedler: Your Honor, when you take an appeal, you run into the problem of substantial error.

The dynamics of the trial show that what may seem an egregious error at the time when viewed by the appellate court in context with a presumption of validity of a conviction will frequently be found to be harmless error and the dynamics of the trial require that the lawyer vigorously defends his client against what he believes, the hostile actions of the trial judge.

Now again, we are not saying that the lawyer cannot be punished for criminal contempt.

When the lawyer's conduct is contemptuous, he can and should be punished for criminal contempt.

All we say is that this should occur in accordance with the time tested requirements of due process of law.

That the trial judge should not be able to proceed summarily that no matter how he tries, he cannot divorce himself from the fact that he is involved in the events leading up to the trial.

Moreover, in a criminal proceeding in which the accused faced originally four-and-a-half years imprisonment and now it was cut down to six months so as to defeat the claim of the jury trial, you have the trial judge performing the necessarily inconsistent functions of prosecutor, jury and judge.

I think that is one of the crucial things that’s wrong with the criminal contempt power.

Our system of criminal procedure is adversary and accusatory.

The judge, jury and prosecutor, each have a well defined role to play in the process.

We suddenly for this shibboleth of preventing disruption combine it into a single individual who is necessarily involved in the events leading up to the charge and I think no matter how you put it, it's just fundamentally unfair and that in light of contemporary standards of due process as recognized by this Court, the summary contempt power should be declared invalid.

Certainly at a minimum in this case, the Court should hold that there is a right to a hearing, and by a hearing I mean a separation, events on the spot, a separation of the contempt proceedings from the other events involved in the trial.

The lawyer has to be defending the interest of his client.

He can’t put his own interest --

Justice Thurgood Marshall: But suppose a lawyer is contemptuous to the Supreme Court of the State, what court would sit on that one?

Mr. Robert Allen Sedler: I failed to see Your Honor -- well, let me -- let’s assume that the lawyer filed a false brief or pleading or something --

Justice Thurgood Marshall: No, no he stood up in open court and just did all the things you and I know can possibly be done, an absolute contempt to the Court.

You say some other court should do it, now what other court?

Mr. Robert Allen Sedler: Assuming in Kentucky, we have a procedure by which when all of the judges of the Court of Appeals are disqualified from hearing the case because of interest or involvement, the Government can appoint pro tem special judges to hear that contempt.

Justice Thurgood Marshall: And that would be the protection that the Supreme Court would get?

Mr. Robert Allen Sedler: Well, that the terms of protection --

Justice Thurgood Marshall: Well suppose somebody is contemptuous in this Court, now what court will operate then?

All I’m talking about, why do you say that all summary contempts must be washed out with one stroke of the pan, why all?

Mr. Robert Allen Sedler: I guess that the best answer that I would give to Your Honor is that the exercise of the summary contempt power is inconsistent with those time tested principles of due process because it does combine the inherently inconsistent functions of prosecutor, jury and judge in the same instance -- in the same person and it also is the person who is necessarily involved in the events.

And the other answer that I would give is that the Court has long held that judicial power must be exercised by the means least at -- a reason of -- by least, not the least adequate but the least extreme means that are necessary to achieve the objective.

That would indicate an answer to Your Honor's question that maybe there would be no choice, but that the Supreme Court or an appellate court would have to exercise the summary contempt power, but that’s not where the problem arises, that’s not where the cases come up.

The cases come up from trial courts and so I would say that the means, the power must be the least adequate to deal with the problem presented then this would justify holding that the summary contempt power is unconstitutional when exercised by the trial judge, necessity justifies the power, if at all, necessities --

Justice William J. Brennan: Well I gather, Mr. Sedler, to that extent your position except it would invalidate Rule 42 (a), would it not?

Mr. Robert Allen Sedler: Yes, Your Honor.

Justice William J. Brennan: And also the underlying statute?

Mr. Robert Allen Sedler: I don’t believe that the underlying statute -- no, we are not challenging criminal contempt, we are not challenging the federal or state statutes that provide for criminal contempt.

All we are saying is --

Justice William J. Brennan: Well I thought the federal statute dealt by definition, doesn’t it, with what is a criminal contempt?

Mr. Robert Allen Sedler: Yes, and we are not questioning what is a criminal contempt.

All we are saying Your Honor is that criminal contempt should not be punished summarily.

Justice William J. Brennan: Alright.

So what you are saying is you’d invalidate only 42 (a)?

Mr. Robert Allen Sedler: 42 (a).

Justice William J. Brennan: And all contempts would have to -- the process would be under 42 (b)?

Mr. Robert Allen Sedler: Under 42 (b) is preferably with the jury and this I think moves us into the second issue in this case and here again --

Justice Harry A. Blackmun: Mr. Sedler before you get there, just the -- as a matter of curiosity, is your client Mr. Taylor a member of the bar of Kentucky?

Mr. Robert Allen Sedler: Yes, Your Honor.

Justice Harry A. Blackmun: This wasn’t a pro hac vice case?

Mr. Robert Allen Sedler: Oh no!

Mr. Taylor has long been a member of the Kentucky bar and defended some hundred capital cases, extremely well-known to the trial judge.

Justice Harry A. Blackmun: If this conviction holds up, is he likely to be disbarred?

Mr. Robert Allen Sedler: He certainly will be subject to disciplinary action which could reach out disbarment proportions.

I think that this is one of the reasons which shows why criminal contempt is a serious offense whenever a lawyer is involved and --

Justice William J. Brennan: Excuse me Mr. Sedler, if you follow a Rule 42, if that’s what you say constitutionally would be required 42 (b) procedure whether state or federal, what issues would be determined at the hearing?

Mr. Robert Allen Sedler: Whether the conduct constituted criminal contempt.

Justice William J. Brennan: I see, the judge in whose presence the conduct was committed could not say that’s contempt and --

Mr. Robert Allen Sedler: He would cite, he would cite and specify --

Justice William J. Brennan: He wouldn’t cite just for determination whether --

Mr. Robert Allen Sedler: Oh!

It's somewhat analogous to a grand jury indictment.

Justice William J. Brennan: Right and you’d have a -- you’re coming now that you’d say that the constitution would also require a jury trial?

Mr. Robert Allen Sedler: Well, depending on the view that the court takes.

My -- the point that I -- the submission that I would make is that -- is that contempt of court as defined by recent decisions of this Court such as the little case, necessarily constitutes a serious offense within the meaning of the trial by jury guarantee because it is the kind of offense, this material, intentional obstruction to the administration of justice that is likely to be regarded as contrary to the ethics of the community and secondly, there are some subsidiary arguments.

Many of the criminal contempt cases involved lawyers.

Lawyers do suffer collateral consequences which should be taken into account.

Moreover, the court itself is sitting in judgment on a contempt charge.

If justice must serve the appearance of justice, there is something again seriously questionable about a court sitting in judgment on the charge of contempt of court.

But I think that those are subsidiary arguments.

I think the major argument is that contempt is a serious offense because it is so regarded by the society as a whole.

And I think in this regard it is because criminal contempt has been defined by this Court not merely to include so called disrespect to the person of the trial judge, but as requiring an actual intentional material obstruction to the administration of justice.

At least the Court should hold that where there is the possibility of substantial imprisonment, let’s say beyond the ten days approved in the Dyke case, that contempt --

Justice William J. Brennan: You (Voice Overlap) only ten days would be substantial imprisonment for a lawyer?

Mr. Robert Allen Sedler: Well, I would argue Your Honor in light of Argersinger of that any imprisonment --

Justice William J. Brennan: I would think so.

Mr. Robert Allen Sedler: -- makes the charge a serious one within the meaning of the Sixth Amendment’s guarantee of right to trial by jury.

It seems to me, going on to that point, that the Sixth Amendment speaks in clear terms of all criminal prosecutions.

And just as the Court has held that an attorney, I am sorry, attorney is required in all criminal prosecutions so too a jury trial should be required.

The only difference is the historical genealogy of the right to trial by jury.

But when the Court has been dealing with the Seventh Amendment’s right to trial by jury in civil cases, it’s disregarded historical practice, even though under the clean up doctrine enacting the word historically equitable, the court could award damages without a jury, this Court has held that every time there is a claim for damages, there must be the right to trial by jury.

It seems to me that the terms of the Sixth Amendment are just as clear and that regardless of the historical practice, the clear thrust of the Sixth Amendment is to require the right to trial by jury in every case where any imprisonment is involved.

Justice Potter Stewart: We’re dealing here though with the Fourteenth Amendment, are we?

Wasn’t this a state trial?

Mr. Robert Allen Sedler: Yes, Your Honor but as I read Duncan, it holds that the same standards apply -- same jury standards apply to the state courts.

Justice Potter Stewart: Yes, but the Court has never held that the Fourteenth Amendment incorporates or absorbs or whatever the figure of speech maybe, the right to jury trial to be found in the Seventh Amendment has it?

Mr. Robert Allen Sedler: In civil actions, no Your Honor.

Justice Potter Stewart: No.

Mr. Robert Allen Sedler: Your Honor, I will reserve for rebuttal time.

Chief Justice Warren E. Burger: Mr. Sedler, let me go back to response you gave to Mr. Justice Rehnquist if I followed you.

What you said was that the right to appeal is not a genuine and meaningful remedy if the Court has overreached.

You did not fill in beyond that.

I might take it that your view is that since the right to appeal for the overreaching or arbitrariness of the judge is not a meaningful remedy that then the lawyer is free to try to out shout the judge?

Mr. Robert Allen Sedler: No.

Chief Justice Warren E. Burger: Well, then what are the alternatives?

Mr. Robert Allen Sedler: Well, I think if I were to be put, I was answering Mr. Justice Rehnquist question in regard to showing effect into the fact that the lawyer who must try to protect the rights of his client maybe shielded in his efforts to protest trial errors at the time that they occur.

And my point was that merely because he has a right to appeal trial errors, it doesn’t mean that he can ignore the trial errors at the time that he has -- they have occurred.

His duty to his client requires him to try to correct the trial error before the judge because those errors cumulatively could have an impact on the trial even though taken by themselves, they might not constitute substantial and reversible error.

Chief Justice Warren E. Burger: Would you think it is not contempt if after a judge, the trial judge has ruled and announced his ruling if the lawyer insists upon continuing argument of the ruling which has been closed?

Mr. Robert Allen Sedler: I think that the line is drawn where the trial judge says, “Counsel, I’ve heard enough argument on this point, proceed.”

So one of the things that I think appears from the record in this case, Your Honor was at no time that the trial judge say during the trial, “Mr. Taylor, I want you to stop this behavior, I want you to stop this line of argument.

You are heading towards the line where advocacy becomes contempt.”

There was sort as if the judge was waiting and waiting and then either something hit him personally or he thought the line was crossed and he pounced on contempt, as he put it in his tirade from the bench, “I have you nine counts of contempt.”

And I think that during the course of the trial, yes, there comes a time when the trial judge must be able to say to the lawyer, argument is stopped on this point.

If you have any further thing you want to say to the appellate court, say it in the record.

But I want to leave this matter and get on to something else.

And I think at that point, if the lawyer proceeds he could be cited for a contempt and although this court has not granted certiorari on the substantive contempt charges, I think a cursory examination of the charges almost on their face will reveal that they do not constitute criminal contempt under the standards promulgated by the Court.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Very well, Mr. Sedler.

Mr. Triplett.

Argument of Henry A. Triplett

Mr. Henry A. Triplett: Mr. Chief Justice and may it please the Court.

With the Court’s permission, I will deal first with the question raised in this petition as to whether or not the petitioner Taylor was given a right to be heard during a proceeding that resulted in his conviction for criminal contempt.

It is our position and we think the record completely sustains it that all during the trial and in each time the petitioner were cited for a contempt by Judge Hayes that he was indeed given a reasonable opportunity to be heard and in most instances he took it.

So it is our position here that this is really not a question of law, but a question of fact as to whether or not this 15-volume transcript sustains a position that Taylor was indeed given a chance to be heard on the contempts and whether or not he was given the right to state the mitigating factors which if no allocution does exist in a summary contempt proceeding he would be entitled to give.

It is our contention that the record does indeed show that each instance that he gave the mitigating circumstances of which he was aware, these included a marriage, a funeral, working without pay, long hours of being tired.

So first it is our position that the record sustained a hearing.

Justice Potter Stewart: I missed to what you said a moment ago.

Working without pay long hours and being tired and --

Mr. Henry A. Triplett: A marriage and a funeral, and that sort of thing -- things that caused him to be tired and things that --

Justice Potter Stewart: Who, who is tired, who is tired?

Mr. Henry A. Triplett: Mr. Taylor.

And keep in mind, Mr. Taylor was there, there were two or three other lawyers representing the co-defendant in the trial and of course the Court would be the principles involved in this case.

So we say the record is replete with that.

Second we say, that not only do we say that the record does sustain that he was heard as we understand the decisions of this Court starting with Terry and all the discussion that has occurred since Terry about the validity of Terry, it nevertheless remains that in Terry, this was a case where David Terry knocked the marshal down after the marshal started to eject his wife from the courtroom.

And in affirming or rather refusing to grant a writ of habeas corpus, this Court said that there was a right of instant apprehension and imprisonment with no allocution.

Coming forward to the case involving Judge Medina, the Sacher case although this Court took that case solely on the question of the bias of Judge Medina and his qualification to hear the contempt involving the Attorney Sacher.

The premise of the case was that there was no allocution as it is explicitly stated in the federal rules that is the right of -- to speak at the time of the sentencing.

However, in Sacher the same kind of allocution occurred as occurred here.

Throughout the nine-month trial there was continuous dialogue between Judge Medina and the lawyers involved and there couldn’t be of much doubt that everybody was pretty aware of what was transpiring and that this Court did not set aside that conviction because of a right -- because of no hearing.

And this is -- it seems to be the hearing, the procedure all through in the Sarafite case, the Ungar-Sarafite case.

Again, there was a lot of dialogue in the trial between Judge Sarafite and Unger who was on the witness stand during the trial of Hulan Jack and I think the hearing took two days -- placed two days after the trial, Ungar appeared with a lawyer.

The lawyer moved for continuance and Judge would give him a continuance, he withdrew from the case and then Ungar, all he said was “I am not feeling well and I’d like a continuance,” and that was the allocution in that case and this Court held that conviction sufficient.

Now, next I would like to turn very quickly to the right of a trial by jury in this case.

The petitioner stands convicted of criminal contempt.

The highest court in the Commonwealth of Kentucky has said that his ultimate sentence to be served is six months.

We say, taking the literal language in the Bloom against Illinois case where the petitioner got 24 months for offering a will alleged to be forged and which was reversed by this case and keeping in mind that the Bloom against Illinois case, the opinion was released on May 28, 1968, the same day as Duncan against Louisiana.

It is said under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as to the best evidence of the seriousness of the offense.

Justice Harry A. Blackmun: Mr. Triplett, I am just a little curious.

I realize that Kentucky Court of Appeals has spoken in this case, but apart from that, under Kentucky law, would the sentences initially imposed be consecutive or concurrent?

Mr. Henry A. Triplett: As they were initially opposed by Judge Hayes, they were consecutive.

Justice Harry A. Blackmun: Consecutive.

Mr. Henry A. Triplett: After they were imposed, Judge Hayes corrected his judgment with Court of Appeals of Kentucky’s permission and eliminated the requirement of consecutiveness and it was the ultimate judgment of the Court of Appeals that this meant six months.

Although we bring the question of the right of the trial court and of the Court of Appeals to permit this correction and of Judge Hayes to do it, this point is conceded by petitioner on page 21 of his brief when he says in addition, the respondent makes much of the fact that an appellate court has the power to modify sentences, this petitioner does not dispute.

Justice Harry A. Blackmun: In that connection, do you have appellate review of sentences in Kentucky?

Mr. Henry A. Triplett: Yes, sir.

The right to modify and eliminate and reduce contempt sentences in my mind is really not open to seriousness of --

Justice Thurgood Marshall: Mr. Triplett, when the Bar Association considers this case, will they consider it at one six months or more?

Mr. Henry A. Triplett: One six months, Mr. Justice Marshall.

Justice Thurgood Marshall: On how many counts?

Mr. Henry A. Triplett: On eight counts.

Justice Thurgood Marshall: Well, they would be considered guilty on all the accounts.

Mr. Henry A. Triplett: Yes, sir.

The Court of Appeals of Kentucky has affirmed it and this Court has refused to grant cert on that question.

And if the Bar Association does that, they haven’t yet, I don’t know that they will, they would have the right to do it, but if they do, do it, you are exactly correct that they would consider the eight findings of contempt as burden only of any disciplinary action that might ultimately be taken.

I think I would have to state that to you affirmatively.

Chief Justice Warren E. Burger: Well, what you’re saying there really is no more than that they would act on the full record?

Mr. Henry A. Triplett: That’s correct sir.

That’s correct Mr. Chief Justice.

Now --

Justice Potter Stewart: Mr. Triplett is there any limitation in Kentucky law as to the sentence that can be given by a trial judge for criminal contempt?

Mr. Henry A. Triplett: No, Mr. Justice Stewart there was none.

This was some what up in the air of although the ten was -- the trend was away from it, but the Court of Appeals case of Taylor against Hayes declared the limiting statute unconstitutional as being abridgment on the Court’s power to function.

So that this point in time Mr. Justice, there is no limitation.

We used to have the 30-hour rule, 30-hour or $30.00 rule that began to be eroded some years back and they cleared it up completely in this case.

Justice Potter Stewart: So now, so far at least as theoretical, how are those, the trial judge could send somebody to be locked up for the rest of his life for criminal contempt.

Mr. Henry A. Triplett: Theoretically, that was true as it was true in Bloom against Illinois, yes sir.

Chief Justice Warren E. Burger: Mr. Triplett, let me back a little bit for something you touched on in response to a question partly from Mr. Justice Stewart.

At what stage and as to which of the particular episodes did Mr. Taylor respond saying that his conduct was accounted for by the fact there had been a funeral, a wedding and a lot of other things.

Was that -- were you drawing together a whole series of things?

Mr. Henry A. Triplett: I was drawing a series of things, isolated portions of it.

It was all wrapped up in his final argument to the jury when he said this --

Chief Justice Warren E. Burger: Where are you now?

Mr. Henry A. Triplett: On page 119 of the transcript Mr. Chief Justice, where petitioner says this.

“I want to try to pose, I want to apologize to the Court if I had been in temper and state to the Court that would only been because of the desire to see justice done in the clearer conviction of believe that my client is innocent.

I want to tell you that life has moved on since this case began.

There has been a wedding in my family, a funeral of a dear friend of mine” and those things are interspersed of throughout of the trial Mr. Chief Justice.

And we say that all of this were example of petitioner at one point during the trial as to be excused on a Saturday afternoon and the transcript will support this, so he could go to this wedding of a relative who was flying in, and we also contend that those transcripts show a great deal of consideration toward petitioner’s problems by the trial court.

Wrapping up this jury in a matter very quickly.

In Frank versus United States in 1969, the -- this Court affirmed the judgment where Mr. Frank got a three-year suspended sentence for a stock fraud case.

In the Cheff and Schnackenberg case in 1966, this was where, Mr. Cheff violated the cease and desist order and three judges of the Seventh Circuit tried him and gave him six months.

This Court held it was a petty offense.

So we think that what happened here has well within the decisions of this Court.

Now, Mr. Chief Justice and may it please the Court, I would like to turn to what I consider the third phase of this case as I understand the questions upon which this Court granted certiorari and that relates to the alleged or biased hostility of Judge Hayes as to render him unqualified to pass judgment on these contempts.

We start with Mayberry.

Nothing similar to Mayberry occurred here.

There was no vilification by Taylor or Judge Hayes.

There were no epithets hurled at Judge Hayes.

Second, we come to Offutt.

There is nothing similar to what occurred in Offutt here.

Justice Thurgood Marshall: What about the phrase by “Now, I got you?” [Attempt to Laughter]

Mr. Henry A. Triplett: I beg your pardon Mr. Justice I didn’t hear you.

Justice Thurgood Marshall: What about the judge saying “Now, I got you?”

Mr. Henry A. Triplett: We say that that occurred after the judgment of contempt had been -- wait a minute sir, I don’t recall anything in this trial or this transcript that said -- where Judge Hayes said, “Taylor, now I got you.”

Justice Thurgood Marshall: Well, that might not be the exact words, but it’s close to it.

Mr. Henry A. Triplett: I dispute that Mr. Justice Marshall.

I dispute that Judge Hayes said that.

Justice Thurgood Marshall: Well, I have to find it.

Mr. Henry A. Triplett: Alright sir.

Now, let me be very clear and honest.

At the time he imposed the sentence, there was language in there, he said I have got you on nine contempts.

Justice Thurgood Marshall: Well, that's what we are talking about?

Mr. Henry A. Triplett: But I read that in a different context Mr. Justice Marshall as saying, “Now I’ve got you.”

Justice Thurgood Marshall: Well, now I got you on nine counts.

Mr. Henry A. Triplett: That’s correct sir.

Justice Thurgood Marshall: I stand corrected.[Laughter]

Mr. Henry A. Triplett: Yes, sir.

Justice Thurgood Marshall: I stand corrected.

Mr. Henry A. Triplett: I don’t mean to be argumentative on --

Unknown Speaker: (Inaudible)

Mr. Henry A. Triplett: That is correct sir, that’s exactly what he said.

Now, it is our position Mr. Justice, and may it please the Court that at the time of sentence, the trial that occurred on the matter of contempt and at some point in imposing the punishment, a judge must have the last say and the last word.

The right to be heard, we say had occurred.

The reasons for mitigation and defense had occurred.

It is not uncommon for judges at the end of a trial and I am not speaking only of lawyers at this point, I am speaking of a defendant.

Suppose a judge hears a particularly aggravated case that just shocks of conscience of any human being, it is not uncommon for state and federal judges and I have heard them both do it, to just absolutely take the punishment apart or defendant apart when he imposes sentence.

Otherwise, there wouldn't be much reason for the disparity in some of the sentences that are imposed.

With the sentencing power in the federal court, certainly the aggravating circumstances of a particular crime or a set of circumstances will cause a federal district judge to impose a larger sentence than a lesser sentence or even to probate.

And we say that just because a judge comes down hard on the defendant at the time he imposes a sentence is not a predisposition of hostility, particularly when we claim that the bias or a plain bias throughout this 15-volume record is just absolutely not present.

And that’s absolutely what we feel about it.

Let me address myself, if I may just for a moment, excuse me sir, [Attempt to Laughter] if I may to this proposition that whenever a summary of contempt occurs that the trial judge must recuse himself and allow it to be heard by another judge.

Let’s take a very practical question and Mr. Justice Marshall alluded to it in a question to Mr. Sedler, when he asked which Court would hear this.

Let’s take Father Groppi’s case in Michigan, where the people were led through the legislature.

And let’s assume that the Michigan general assembly was in joint session, the Senate and the House.

They cite Father Groppi for contempt.

Now the fact that they saw this, they heard this, which legislative body is going to try that contempt.

Let’s assume that if a trial judge is going to have to recuse himself in other cases, let’s see now whose going to do that.

Is it going to be his brother trial judge in the same district or the same circuit or in the same state?

Must it go outside the state?

Is it going to occur as it occurred in the Codispoti case which I understand is going to be heard here next week.

Codispoti got his second judge and what he said to the second judge was about as bad as what was that.[Voice Overlap]

Excuse me sir?

Chief Justice Warren E. Burger: No question.

By the way in the Groppi case, that was Wisconsin --

Mr. Henry A. Triplett: Yes sir, Excuse me, I’m sorry Mr. Chief Justice.

Chief Justice Warren E. Burger: In the Groppi case, I think the opinion indicated rather clearly that had they seized him immediately and proceeded with contempt, there might have been a different result.

It was because Groppi went away and then without notice to him.

Mr. Henry A. Triplett: He was in jail for disorderly conduct and two days later without the present hearing, notice of papers they imposed a punishment, that is exactly right Mr. Chief Justice.

But would the bias or the disqualification be any less because Father Groppi led the group pass the Wisconsin legislature you say, then the contempt occurring before a trial judge.

We think not and we think that this displays some fallacy in the proposition that they must be heard by another judge or by some other forum and perhaps that can be dealt with in this case.

We think that the most important factor and the most important protection of a judge and of a lawyer involved in the criminal contempt case is that it appears on the transcript.

There is a record that an appellate court can do.

And this is somewhat followed by a -- stated by the Weisberg case out in the Ninth Circuit that when these things appear on the record, this prevent a judge without any court reporter, without any witnesses must do it in public, prevents any abuse in that respect.

Bringing my argument to an end here, we think that for two-week period and including the ultimate part here, Judge Hayes did a pretty good job in this trial if he’d imposed a punishment on Taylor at the time the contempt is heard -- were heard, he could claim a psychological disadvantage to hurt his client.

If he didn’t cite him for contempt and did nothing then they would be a claim that he discreetly searched the record after all this occurred.

What he did was at that the time they occurred was to cite him, permit him to be heard in practically all instances and then at the end of the trial, he imposed the punishments that he thought proper and then he corrected them as the petitioner has conceded, he had a right to do.

We think that it is highly necessary for the integrity of the judiciary which protects the freedom of us all, that this judgment be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Triplett.

You have a few minutes left Mr. Sedler.

Rebuttal of Robert Allen Sedler

Mr. Robert Allen Sedler: Mr. Chief Justice, and may it please the Court.

I think I have a comment on two points.

Mr. Triplett says that the petitioner had the right to respond.

The record of course which Mr. Triplett refers, shows that this simply was not so, but more importantly what we are in agreement on is that there was no hearing insofar as the petitioner had a chance to respond to them was only on counts two and three.

The response was strictly for the record and it occurred at a time when the petitioner was required to argue substantive questions to protect the interests of his client.

At least the court should hold that due process requires a hearing in the sentence that the summary contempt, if this Court is going to allow it to go on, be separated from the other events in the case that the trial judge specify the charge which never occurred here.

He didn’t specify the charge until three months later, specify the charges, listen objectively to argument, to matters in defense or mitigation and then make a ruling.

With respect to the matter of embroilment what the respondent says as well, ignore my remarks at the time of sentencing, but there is no comment about everything else that occurred during and after the trial.

This -- of course, it is a burden to prove embroilment.

Here, the respondent was not to very subtle.

He says to the petitioner before the jury, I am going to make an example of you.

I am going to do something the bar says they should have done years ago.

It’s true that there were no epithets hurled at the judge by the petitioner, but it was just a reverse when the judge sent -- when the petitioner argued I may have four or five months of my life tied up in this case.

The judge said “Acidly before it’s over you might have a lot more than that,” provoking all the time, “You’re putting on the show, I don’t like your utters.”

Then he said, “You’ve accused me of rigging the jury,” all this occurs very early and throughout the trial.

And then there is the acts of the judge where he says “You can’t practice in my court anymore.”

He refused to hold a bail hearing.

He used to admit the petitioner to bail.

Now if this does not show embroil then what I think the Court must be saying is that there is no such concept of being embroiled in controversy.

But it does raise the question of the -- what I call the inherent unfairness of the exercise of the summary contempt power.

This case does present both narrow and broad issues.

The petitioner has not only argued his own case and has not limited himself to the narrow issues that would result in a reversal of the petitioner’s conviction.

The petitioner believes that the issues presented in this case go far beyond the present petitioner and the present respondent and have deep implications for the administration of justice itself.

Petitioner would ask this Court to reverse his conviction.

Thank you Mr. Chief Justice.

Thank you Your Honors.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Featured:

Johnson v. Mississippi - Oral Argument

Thu, 23 Aug 2012 18:15:38 +0000

Case:

Johnson v. Mississippi

Media File:

5485_19710421-argument.mp3

Related Transcript:

5485_19710421-argument

Transcript:

Argument of Stephen W. Porter

Chief Justice Warren E. Burger: We will hear arguments next in 5485, Johnson against Mississippi.

Mr. Porter, you may proceed whenever you're ready.

Mr. Stephen W. Porter: Mr. Chief Justice, may it please the Court.

My name is Stephen Porter of the law firm Williams & Connolly, seated in counsel table is Richard Rugo of the law firm Hogan & Hartson.

We are co-counsel for petitioner in this matter.

This case arises out of the conviction and sentencing of a Mississippi civil rights worker under circumstances which would appear to ignore every pronouncement and every limitation and every cautionary statement that this Court has over the years ever made on the issue of the use by a trial court of the power, without the ordinary requirements of due process to punish allegedly contumacious behavior summarily.

The salient facts briefly reviewed are as follows.

On January 27, 1969, petitioner Robert Johnson was summarily convicted by Grenada County, Mississippi Circuit Court Judge Marshall Perry for a remarked allegedly made in Judge Perry’s Court more than two years earlier.

Judge Perry sentenced petitioner for four months in jail although the maximum sentence is one month to which the Supreme Court of Mississippi later reduced the sentence.

The conviction resulted from an incident which occurred on January 24, 1967 in the judge’s courtroom.

At 9 A.M. that morning, prospective jurors of the January term occupied benches near courtroom doors, a section normally reserved for the public.

Justice Hugo L. Black: Is this one month sentence was stayed?

Mr. Stephen W. Porter: Yes, Your Honor.

Justice Hugo L. Black: With serious evidence?

Mr. Stephen W. Porter: Yes.

Yes, Your Honor.

This one month sentence has been stayed.

The most direct route to seats reserved for defendants in pending cases before the term involved walking in front of these jurors.

Judge Perry announced that anyone entering the Court while in session would be required to use an aisle in the rear and this announcement was made approximately five or ten minutes before Robert Johnson appeared in Court.

When petitioner Johnson arrived, he walked via the most direct route to the seats reserved for the prospective defendants and as he did he walked in front of the jurors.

Justice Potter Stewart: And he was there as a defendant in case that’s going to be tried that day?

Mr. Stephen W. Porter: Yes, Your Honor whether or not he was going to be tried that day.

It was the opening day of the --

Justice Potter Stewart: Trial.

Mr. Stephen W. Porter: -- of this term.

Justice Potter Stewart: And he was --

Mr. Stephen W. Porter: And he was required --

Justice Potter Stewart: A defendant in one of the cases that the Court was going to try during that term.

Mr. Stephen W. Porter: Yes, Your Honor.

Petitioner Johnson was apprehended by the Deputy Sheriff who ordered him to walk around to the rear.

This point, according to the state’s show cause petition, Johnson there upon said in a loud and offensive voice, “What the hell do you mean, go around to the rear?”

That is the sum total of any allegation of contumacious behavior on petitioner’s part.

Chief Justice Warren E. Burger: What would be your view if the judge then and there or upon the adjournment of Court that had imposed the sentence of 30 days for contempt of Court?

Mr. Stephen W. Porter: Your Honor.

First of all, I think that that would be a far different matter than what he did do and --

Chief Justice Warren E. Burger: Yes.

Obviously, what happens --

Mr. Stephen W. Porter: And I think even then, the behavior of petitioner Johnson who was alleged is far less than the outrageous behavior which is present in many of the decided cases to this Court on this subject.

Furthermore, I think there's another issue which ought be raised and faced, and determined, that is the question of whether a judge ought involved a summary contempt power against a person who is not then involved in a proceeding before the Court or whether or not the ordinary fuller hearing ought be required.

Chief Justice Warren E. Burger: What difference does it make whether it’s a spectator, a tourist, a defendant, or a member of the bar of the Court?

Mr. Stephen W. Porter: Well, I think Your Honor that there are --

Chief Justice Warren E. Burger: And except that it might be a higher degree of culpability on the part of the lawyer of course.

Mr. Stephen W. Porter: Leaving aside the question of a lawyer for the moment.

I think the difference is this, is that in the case of the defendant before the Court, it is possible -- it’s much more difficult to invoke a summary punishment because it involves the possibility of prejudicing the case, possibly prejudicing the jury, and possibly interrupting the proceedings.

There is a lesser remedy available in respect of a spectator.

He can be removed from the Court.

The Court can proceed with its business and still take care of in due course charging the contemnor with the responsibility for his act.

Justice Hugo L. Black: Is the judge on the bench at the time this --

Mr. Stephen W. Porter: Yes, Your Honor.

The judge was on the bench.

Although, --

Justice Potter Stewart: What was going on in the courtroom?

Was a trial then in progress or doesn’t the record show?

Mr. Stephen W. Porter: The record does not show what was going on whether or not if it was going on -- it appears the petitioner arrived in Court shortly after the judge was making his opening announcements with respect to a -- I don’t believe it, a trial was going on because I don’t think jurors had been chosen yet, with respect to any of the pending cases.

Justice Potter Stewart: Just some preliminary matters at time.

Mr. Stephen W. Porter: It’s a preliminary matter -- I believe that’s correct, Your Honor.

Chief Justice Warren E. Burger: You haven’t indicated your view of the matter but you don’t need to, the view of the Court’s power summarily to deal with utterance of that kind in the courtroom, do you question the Court’s power to deal with that kind of an utterance in the courtroom by any person?

Mr. Stephen W. Porter: I don’t question Your Honor, the power of the court to deal with an utterance of that kind in a courtroom.

Although, I think traditionally, it would have to have been the kind of behavior which would have disrupted the proceedings.

The state’s show cause petition alleges that the chair from his deputy brought petitioner before the judge and related to the judge what had happened, indicating that the judge had never heard the disruption which had taken place.

And again, I think that although the Court that has the power to dispose off a disruption in the Court, questions of whether or not, it should deal with it in a summary proceeding, where some other method would be appropriate and still reserving the possibility of a prosecution for contemptuous behavior is a reasonable and proper result.

Justice Thurgood Marshall: You mean, staying in front of the courtroom he says, and to judge, look to him and say -- and say, “Go to hell.”

The judge can’t do anything about it?

Mr. Stephen W. Porter: I'm not suggesting that that the judge cannot do anything about it, Your Honor.

I'm suggesting --

Justice Thurgood Marshall: What do you suggest he could do?

Mr. Stephen W. Porter: There's several things he could do and it depends, I think --

Justice Thurgood Marshall: He could put him in jail for 30 days right then and there, could he?

Mr. Stephen W. Porter: I think he could probably put him in jail for 30 days right then and there.

Although,--

Justice Thurgood Marshall: Legally?

Mr. Stephen W. Porter: Yes, Your Honor, legally.

He could put him in jail for 30 days right then and there, if the judge saw and heard the -- this is the old distinction between direct and indirect contempts.

Justice Thurgood Marshall: And if the Sheriff heard it and told the judge that that’s different.

He can go attend the courtroom.

Mr. Stephen W. Porter: I think that’s correct.

Yes, Your Honor.

Justice Thurgood Marshall: What would he do then --

Justice John M. Harlan: Is there a state statute against him?

Mr. Stephen W. Porter: Pardon me Your Honor?

Justice John M. Harlan: Is there a state statute that covers it?

Mr. Stephen W. Porter: There is a state statute that covers contempt of -- direct contempt of Court punishable by one month.

It empowers the judge to sentence a contemnor to one month in jail in a direct contempt under Mississippi statute.

Justice Byron R. White: Well, this judge indicated later, he heard it himself.

Mr. Stephen W. Porter: This charge later indicated the, Your Honor, two years -- after two years had gone by that he did hear it himself.

Although, he had in the intervening of time schedule a show cause hearing.

Twice scheduled a show cause hearing and then he canceled it.

Justice Byron R. White: Oh, I don’t know that is inconsistent with his having heard it and I wouldn’t think it’s inconsistent with his having heard it that the sheriff brought the man up to him and told him what he said?

Mr. Stephen W. Porter: Your Honor, I think it may begin inconsistent in this respect and that is --

Justice Byron R. White: Well, he perhaps didn’t say, “Well, I have heard it by myself so you don’t need to tell me.” But he let him tell him.

Mr. Stephen W. Porter: And then he scheduled a show cause hearing and which would be the proper procedure under Mississippi statute for an indirect contempt.

Justice Byron R. White: It wouldn’t be improper for the direct one, would it?

Mr. Stephen W. Porter: No, it would not be improper to provide a fuller hearing, that’s correct.

The judge ordered the show cause hearing -- a show cause petition be filed and within the two days of the such order, petitioner filed a motion that Judge Perry disqualify himself from the pending show cause hearing alleging personal prejudice and further alleging that since the judge had ordered his arrest, he could not fairly decide the action.

On February 1, 1967, approximately a week after these events, petitioner filed a petition for removal to the United States District Court for the Northern District of Mississippi.

It was not until some 21 1/2 months that elapsed that the United States District Court remanded the prosecution to the Grenada County Circuit Court holding that petitioner’s remedy in the federal system could lie only after he demonstrated that he had been deprived of his constitutional rights by the state courts.

On January 22, 1969, prior to any action in Grenada County on the contempt charge and two months after, the federal court had returned the prosecution to the state system.

Petitioner and others filed an action in the United States District Court, the Northern District of Mississippi wholly separate action to restrain trials of Negroes and women until such time as those persons were not systematically excluded from juries in violation of the U.S. Constitution.

Judge Perry was named as one of the defendants in that action and served with the process on January 23, 1969.

On January 24, 1969, a summons was issued directing Johnson to appear in Judge Perry’s courtroom on January 27th, to show cause why he should not be punished on the old contempt charge.

On January 27th, petitioner and his attorney did appear in front of Judge Perry for the show cause hearing at which time the judge canceled the hearing instead reading a contempt conviction sentencing petitioner to four months in jail.

Bail was set at $2,000.00 and subsequently reduced to the statutory maximum of $300.00 for the Supreme Court of Mississippi.

Later that same morning at the second appearance before Judge Perry, in an effort to obtain the judge’s signature on a bill of exceptions, the judge refused.

And when the petitioner’s attorney prepared the bill of exceptions, the judge summarily, and charged hearing contempt, a conviction which was later reversed by the Supreme Court of Mississippi.

Justice Hugo L. Black: Why was the record show -- why was it the judge knew this episode happens?

Did he punish summarily?

Mr. Stephen W. Porter: I'm sorry Your Honor.

You mean, why didn’t punish him in 1967?

Justice Hugo L. Black: Yes.

Why not --

Mr. Stephen W. Porter: The record --

Justice Hugo L. Black: Immediately when the episode happened?

Mr. Stephen W. Porter: The record does not show why he didn’t.

The record only shows that he just elected to travel the show cause route rather than to invoke such summary powers as he might had have under the Mississippi statute.

Unknown Speaker: When was the order to show cause given?

Mr. Stephen W. Porter: The order to show cause was returnable on February 1st, I think, nine days after the alleged contumacious behavior.

Chief Justice Warren E. Burger: Then I take it, it was issued almost immediately?

Mr. Stephen W. Porter: Yes, Your Honor.

It was issued almost immediately following the judge’s order that a show cause order be issued.

Justice Byron R. White: Why wasn’t it heard?

Mr. Stephen W. Porter: Why was it not heard immediately?

The judge ordered that -- I believe the judge ordered that the show cause petition be issued within 48 hours and why he didn’t set it down for an earlier hearing is just not in the record, Your Honor.

Justice Byron R. White: Then he issued another one?

Mr. Stephen W. Porter: The second one was two years later.

Justice Byron R. White: Yes.

Mr. Stephen W. Porter: The February 1st show cause hearing was not held because by that time a removal petition had been filed in the federal court.

Justice Byron R. White: Do you respond writing to the show cause order in that jurisdiction?

Mr. Stephen W. Porter: I'm not aware of whether or the doer, I don’t know Your Honor.

Justice Byron R. White: Was there any response from the person’s show cause order?

Mr. Stephen W. Porter: I think the only response was a motion filed that Judge Perry recused himself from hearing the matter and that motion was never heard and never determined by the judge.

Justice Byron R. White: And was it?

There was then any suit filed against him?

Mr. Stephen W. Porter: There was then a suit filed against Judge Perry that was after 21-and-a-half months had elapsed and after the federal system had returned the case to the Grenada County Circuit Court.

About two months after the case had been returned and still without any action taken in Grenada County, the separate suit was filed by petitioner naming Judge Perry as the defendant.

Justice Hugo L. Black: What case was being tried at the time this occurred?

Mr. Stephen W. Porter: You mean Your Honor, the proceeding that was going on in the courtroom?

Justice Hugo L. Black: Over the court at the time the court was interrupted.

Mr. Stephen W. Porter: I don’t believe there was any proceeding going on at that time.

I believe they were in a process of choosing jurors --

Justice Hugo L. Black: Well, what case?

Mr. Stephen W. Porter: I believe they were selecting jurors, eligible jurors, for all the pending cases in that term.

Justice Hugo L. Black: Didn’t we --

Mr. Stephen W. Porter: Yes.

Justice Hugo L. Black: Was there any complaints to the Court about anything that had been done?

Mr. Stephen W. Porter: Not that I know of, Your Honor.

The record suggests none.

Justice Hugo L. Black: It was just a disorder that happened.

Mr. Stephen W. Porter: Just --

Justice Hugo L. Black: Without any reason.

Mr. Stephen W. Porter: The reason appears to have been the request by the deputy sheriff that petitioner walk around the rear of the room when he take his seat rather than take the more direct route and pass in front of the prospective jurors.

Justice Hugo L. Black: Well, was he on trial or charged for that term?

Mr. Stephen W. Porter: He was scheduled for trial during that term.

Justice Hugo L. Black: For what?

Mr. Stephen W. Porter: I believe it was a -- although, it is not indicated in the record.

I believe it was a trespass case which was, although, there wasn’t --

Justice Hugo L. Black: What kind of trespass?

What was it about?

Mr. Stephen W. Porter: I don’t know what it was, Your Honor.

It’s not in the record and the only thing that is in the record which we have in the footnote in our brief is that the -- there was never any prosecution on the matter.

The prosecution on the substantive charge against petitioner was dropped.

I believe it was a trespass arriving out of a civil rights demonstration.

Justice Hugo L. Black: In a restaurant or something like a Court has or where?

Mr. Stephen W. Porter: I've no idea Your Honor.

It’s not in the record.

From its earliest decisions, this Court has recognized that the use of summary procedures to convict must be carefully controlled since they do not encompass the ordinary procedural safeguards incorporated in our system of justice, the right of an accused to be apprised fully of the nature of the charges against him, the right to put on defense, the right to counsel.

Generally, the Merrill area within which summary contempt proceedings have been permitted is where the trial judge has observed the contumacious conduct and then acts swiftly by conviction of the contemnor rather than by an alternative remedy in order to quell a disturbance threatening to upset the sanctity of the courtroom.

Other remedies have been held constitutionally permissible in dealing with an obstreperous defendant.

This Court recently in Illinois v. Allen mentioned at least two others restraint and removal from the courtroom.

Other non-summary conviction procedures suggests themselves, contempt procedures suggests themselves were appropriate such as a civil contempt.

A postponement of the proceedings in a proper case or by the judge, informing the defendant that charges will be preferred against him for contempt after the conclusion of the trial and refer to another judge.

In light of these other possible remedies and in light of these Court’s recent holding in Mayberry versus Pennsylvania which we stripped to the use of a summary conviction after a trial’s conclusion.

Since at that time, immediate restoration of order is no -- or vindication of the authority of the Court is no longer the primary requisite.

Petitioner’s conviction and its affirmance by the Supreme Court of Mississippi must be reversed for the follow --

Justice Byron R. White: It wasn’t a major part of Mayberry though that the judge who is going to later hear the case had himself then slandered and insulted personally, and hence, there might have been some question about his fairness?

Mr. Stephen W. Porter: I think that’s correct Your Honor.

I think that’s -- that is also --

Justice Byron R. White: And why do you rely on this case to suggest that the judge trying this contempt later might have had a personal animus and would be biased?

Mr. Stephen W. Porter: Well, there are several possible alternatives which suggest themselves Your Honor.

There’s several affidavits in the records suggesting the judge’s personal bias against defendant and its members of his race and civil rights workers --

Justice Byron R. White: Based on what?

Base on what note?

Based on what?

I mean, just generalized allegations would suffice every --

Mr. Stephen W. Porter: Yes.

And also allegations of prejudice or part of the possibility of prejudice as a result of a lawsuit filed by petitioner naming the judges or defendant --

Justice Byron R. White: Yes.

Mr. Stephen W. Porter: At the time of the second show cause hearing.

That might -- I would suggest might even be a greater possibility of bias than most present in the exchange --

Justice Byron R. White: What was the charge?

What was the charge in the suit against the judge?

Mr. Stephen W. Porter: Well, the suit Your Honor against the judge was against the judge and several others for systemically restraining and preventing Negroes and laymen from serving on juries in Grenada County, Mississippi.

Justice Byron R. White: But this didn’t have anything to do with this petitioner?

I mean, was the petitioner, a plaintiff?

Mr. Stephen W. Porter: No.

But the petitioner was plaintiff.

Justice Byron R. White: But that he wasn’t suing him for anything that the judge did to him?

Mr. Stephen W. Porter: No, Your Honor. Other than as a member of class.

Justice William O. Douglas: Mr. Porter, you were not counsel for Johnson at the time of this incident, were you?

Mr. Stephen W. Porter: No, I was not Your Honor.

Justice William O. Douglas: Do I correctly infer that the attorney, which he had at that time, was also cited for contempt?

Mr. Stephen W. Porter: Yes, Your Honor.

Both attorneys that he --

Justice William O. Douglas: And with what result?

Mr. Stephen W. Porter: Both, the first attorney who represented him the day of the alleged contumacious behavior was cited for contempt for protesting in Judge Perry’s Court that the show cause hearing was improper and that trial was restrained by a temporary restraining order issued by the U.S. District Court for the Northern District of Mississippi and the case had never -- was just never just brought to trial after the temporary retraining order expired.

His second attorney, the attorney who represented him at the time of the second show cause hearing or the time the second show cause hearing was scheduled was also cited for contempt and that contempt conviction, that summary conviction was reversed by the Supreme Court of Mississippi on the grounds that it was not direct contempt before the judge and that the summary procedure did not apply.

Chief Justice Warren E. Burger: Well, now the summary procedure then was the correct procedure under Mississippi law to use in Johnson’s case, I take it, since it was not in your view a direct contempt.

Mr. Stephen W. Porter: Your Honor, If were -- if it were not a direct contempt, the summary procedure would not be.

Chief Justice Warren E. Burger: Well, but he didn’t use the summary procedure here, did he?

Mr. Stephen W. Porter: No, he did not.

I thought you were suggesting that the summary procedure would be then.

Chief Justice Warren E. Burger: Oh no.

Mr. Stephen W. Porter: It would not be the correct procedure --

Chief Justice Warren E. Burger: So, that you don’t have any quarrel with the procedure that the judge used to deal with contemnor?

Mr. Stephen W. Porter: The show cause procedure, no sir.

No quarrel with the procedure that was scheduled.

We are alleging that the failure to then hold the show cause hearing or to hear the motion that the judge recused himself and that the show cause hearing be before an unbiased judge was improper.

Chief Justice Warren E. Burger: Do you suggest that a person in the posture of Johnson may disqualify a judge by bringing a lawsuit against him?

Mr. Stephen W. Porter: No, Your Honor.

I don’t suggest that.

I don’t think that there's any suggestion here that this lawsuit was brought to divest the judge of his power to hear the contempt charge.

Chief Justice Warren E. Burger: But in your earlier argument, you suggested that this is one of the large factors I think that’s the way you put it, in a probable bias since he was a defendant in the lawsuit.

The judge was the defendant in the lawsuit.

Mr. Stephen W. Porter: Yes, Your Honor.

I think it is a major factor and I -- but I think that if -- I think when you have an elapse of two years time, you have your petitioner who is a civil rights worker, who is working actively in that field, when he brings a lawsuit which --

Chief Justice Warren E. Burger: What difference does it make whether he’s civil rights worker or a plumber if he is guilty of contumacious conduct in the courtroom?

Mr. Stephen W. Porter: Well, I think, if you have an intervening legitimate lawsuit with merits which is not brought simply to divest -- some charge in order to divest the judge of his jurisdiction to hear the contempt charge, I think you have an intervening factor which simply requires the judge to excuse himself.

Chief Justice Warren E. Burger: Has that lawsuit been tried?

Mr. Stephen W. Porter: That lawsuit -- according to the record was won by petitioner of the federal District Court, issued an order enjoining the judge and the other defendants from any further acts which would violate the civil rights of the plaintiffs and members of the class.

As a matter of fact that order, Your Honor, was issued and Judge Perry and others were enjoined prior to the time that the judge canceled the show cause hearing.

In other words, the suit was filed within the matter of 48 or 72 hours.

The United States District Court issued its injunction.

Justice Hugo L. Black: Supposing a judge here has contempt committed in his presence, (Inaudible) he says, “I find you in contempt.”

I oppose the wrong sentencing to the inclusion of the trial until I get through with this case and he brings (Inaudible) impose 30 days on you.

Would you hold bar with that procedure?

Mr. Stephen W. Porter: No, Your Honor.

I would not.

I think that’s --

Justice Hugo L. Black: Could that be equivalent of what's happened here or is it different?

Mr. Stephen W. Porter: I think something far different has happened --

Justice Hugo L. Black: I was trying to get at that --

Mr. Stephen W. Porter: I think something far different has happened here.

There was no finding of contempt by the judge.

First of all, it’s not clear that this was a proper case in which there could be a finding of contempt by the judge without a hearing.

Secondly, even if this were the case, that power was not invoked by the judge.

He did not specifically find petitioner in contempt.

He instead ordered a show cause hearing.

He ordered two show cause hearings and he later canceled those hearings.

And we’re suggesting that once the judge has elected to use another procedure, unless there is intervening obstreperous behavior, there may not be a cancellation of the due process hearing and a return to the summary procedure because at that point, two years down the road or 30 days or even one day down the road, there's no longer any need to call the disorder in the courtroom that summary procedure has historically been reserved for just that purpose, to quell a disruption and if the judge elects not utilize it for the purpose of quelling the disruption, he ought not have it later.

Justice Hugo L. Black: When the ‘69 show cause order was issued that was the operative one in your view, was the response put in and answer put in by your client?

What I’m getting at with the issues in fact tendered?

Mr. Stephen W. Porter: No, Your Honor, I think there were no issues of fact tendered.

The petitioner pointer out or petitioner appeared for the show cause hearing and asked through his attorney to put on a defense and was -- and that request was denied in the bill of exceptions which is in the record.

The petitioner’s attorney states that she was prepared to present evidence of the fact that petitioner did not behave contumaciously.

Unknown Speaker: Open the bench, please!

Chief Justice Warren E. Burger: You may go right on counsel.

Mr. Stephen W. Porter: Sir.

The power to punish summarily in any event if this Court is to permit its limited -- in limited instances its continued use, should only be sanctioned or all else is proved unavailing.

Otherwise, the defendant stands confronted with the conviction, never having had a chance to assert a defense but the only protection remaining between him and the jailhouse door an appeal in which the record is often scanty at best and non-existent at worst.

Such an appeal even if ultimately successful, might be long arduous and expensive and might have been completely avoided if all the facts had been examined in unbiased fashion at the trial level.

In summary, we have before us and I think is an outrageous case which amply demonstrates the perils of the misuse of the power to punish summarily.

His power was here employed with the state’s own petition admits the alleged misconduct do not occur within the second hearing of the judge or an alternative remedy had been selected or swiftness was not a prerequisite and whether was ample evidence of possible bias.

Finally, there is wholly absent from the record in this case, the unusual exceptional or flagrant nature of behavior which is ordinarily a condition precedent to the invocation of summary procedures.

Chief Justice Warren E. Burger: Would you make the same argument if a sentence penalty of 30 days had been imposed?

Mr. Stephen W. Porter: Immediately, Your Honor?

Chief Justice Warren E. Burger: Anytime.

Mr. Stephen W. Porter: Rather than a -- rather than a sentence of four months?

Yes, Your Honor.

We would make the same argument.

Chief Justice Warren E. Burger: So, it isn’t your -- it isn’t the length of the penalty you’re complaining about, it’s the process?

Mr. Stephen W. Porter: It is the process.

The penalty has already been reduced to fit to the statutory maximum by the Supreme Court of Mississippi.

Justice Hugo L. Black: Already been reduced to what?

Mr. Stephen W. Porter: To the statutory maximum. Judge Perry’s sentence exceeded the statutory maximum and it was reduced by the Supreme Court of Mississippi to the statutory maximum of 30 days.

Chief Justice Warren E. Burger: Mr. Lyell.

Argument of G. Garland Lyell, Jr.

Mr. G. Garland Lyell, Jr.: Mr. Chief Justice, may it please the Court.

I might say this at the outset that Judge Perry is an old friend of mine, a classmate and I've known him for years and he has his way of doing things sometimes rather unpredictable frankly.

Justice William O. Douglas: Who’s this?

The judge of the --

Mr. G. Garland Lyell, Jr.: Judge that imposed this sentence.

Justice Potter Stewart: Is this the same -- this was in Grenada County which you are addressing?

Mr. G. Garland Lyell, Jr.: Grenada County, yes.

Justice Potter Stewart: But is this the same Judge Perry who was involved in the proceedings in Winston County and as related in the appendix C to your brief?

This is the same Judge Perry?

Mr. G. Garland Lyell, Jr.: Same judge and I come to my reason for making that opinion (Inaudible) in the appendix to the brief what the defendant published a report at the time, this brief once affirmed.

Without all the fly outs of bias and prejudice that may have existed, assuming for argument on in front Judge Perry towards this so-called civil rights worker or whoever he might be, I don’t see it he’s in any position to complain of the procedures that was used against him.

If Judge Perry heard those contemptuous remarks --

Justice Thurgood Marshall: Did he hear him?

Mr. G. Garland Lyell, Jr.: Mr. Justice Marshall --

Justice Thurgood Marshall: (Voice Overlap)

Mr. G. Garland Lyell, Jr.: He said he did in the petition that he instructed the show cause petition or information which he instructed to prosecute it to prepare.

I think that’s where the prosecutor who decided and who prepared it said, it was reported to Judge Perry.

Justice Thurgood Marshall: Yes.

Mr. G. Garland Lyell, Jr.: But you’ll find in the record that Judge Perry himself stated that he heard it.

Justice Thurgood Marshall: I see.

Chief Justice Warren E. Burger: But would there be anything inconsistent between hearing it and having it reported to him?

Mr. G. Garland Lyell, Jr.: It could have been both and like here is a question of counsel.

But I might add this, even though, the punishment was not summarily imposed which he had a right to do for direct contempt in his presence and he directed the prosecution at time to file an information on show cause order, if it occurred out of his presence or out of his hearing, it would have been constructive or indirect and he wouldn’t had have to start the day maximum stays on.

He could got six months for example and I liked this thing you mentioned the way Justice Harlan did, I forgot the word you described the last show cause order of a hearing, nothing every opportunity was given to this man and his counsel to file some sort of response to show something in mitigation, something to purge himself, nothing was ever done.

As true as he noted along went the time the way it imposed of grounded for contempt but they never appeared to defend themselves and I don’t like Judge --

Justice Thurgood Marshall: It was never denied.

Mr. G. Garland Lyell, Jr.: Sir?

Justice Thurgood Marshall: There never was denial on what was said.

Mr. G. Garland Lyell, Jr.: No, sir.

Justice Thurgood Marshall: Never, never.

Up until this one.

Mr. G. Garland Lyell, Jr.: No, sir.

And to me, it gets back.

I don’t know what the aspects the usual contempt in Mississippi is unique, and I didn’t have the time to research it from other states with this tremendous task.

But I agree thoroughly with the rationale of Mayberry and other similar cases that if summary punishment is not immediately imposed at that judge ought to get some other judge to hear the thing.

Hear the evidence and defend on whether or not, first, it is contempt and what the penalty ought to be.

Some judges are unstrung by the contemptuous conduct or unbiased, unprejudiced, and unattached.

But I suggest this, I mean I have been through the court, I felt it like a sort of thin ice in this case for a while and I tried to get counsel to agree, in spite of the fact I think Rule 37, being find on submissive through that argument.

I tried to get them to agree to submit it.

But instead in the thing and the statute on appeals from contempt convictions, I found an interesting thing I've pointed out in my virtual brief that that statute accomplishes, I think to greater degree what would be accomplished by having one single judge hear this thing at a later date when summary punishment not imposed.

That statute on appeal from contempt conviction provides that the Supreme Court of Mississippi, nine judges will review the thing on a record and decide one.

Was there a contempt?

Then, if they determined that there was a contempt from that cold printed record uninfluenced by courtroom atmosphere and what not they can do one of four things.

At the time when the statute said, whether the appellant was guilty of contempt and the sentence or decree or order of the court below maybe affirmed, reversed, annulled or modified.

According to the judgment of the appellate court, that of course was a reason I have attested Boston opinion as an appendix to the brief, to show just how our State Supreme Court has handled these things.

Now, there was a case where the same Judge Perry found a man in Boston who was a lawyer on Winston County, Mississippi.

They ran against Judge Perry, the Circuit judge in contempt and they appealed to their Supreme Court and they completely annulled the conviction.

They didn’t reverse, remand, vacate, or modify.

They completely annulled it as you see from that appendix.

Justice Potter Stewart: I have two problems with your argument and I may say so unless you can straighten it out Mr. Lyell.

About your argument as to the Mississippi statute that gives the Supreme Court reviewing power.

In this particular case in its opinion, the Supreme Court of your state said, “Upon appeal with this Court from a conviction of direct contempt, the statement of the substantive facts set out in the judgment of the trial court will be taken as true and correct.”

So that’s pretty far away from any sort of factual review that I had understood you were suggesting.

And secondly, since there was no hearing, there really wasn’t anything to review in this case if they took the findings in the trial court's judgment as true and correct.

And if the trial judge didn’t conduct a hearing on the show cause order.

There was just no review at all.

Mr. G. Garland Lyell, Jr.: Well, I think what they mean by the statement Mr. Justice, as I understood is this, that they had to accept as a fact from the finding of the trial court, what this contemnor did?

There was -- as Mr. Justice Marshall asks this, there's never been any denial of the fact that he did what he did.

Then under this appeal statute, they will determine if that is the contempt and go ahead and vacate, reverse, --

Justice Potter Stewart: Now, there's never been a denial of this or is there ever been any opportunity for a denial.

As I read the statement of the facts in the petitioner's brief, it boiled out to the fact that at nine o’clock in the morning on January 27, 1969, Johnson with his lawyer appeared before Judge Perry and denying Johnson’s request for a hearing.

Judge Perry read the order, judging Johnson in criminal contempt and sentencing him to four months in prison.

Mr. G. Garland Lyell, Jr.: Well, he had --

Justice Potter Stewart: Therefore, if there was no hearing or opportunity for a hearing, if there was denial of a hearing and if the appellate court takes the facts stated in the judgment of the trial judge as true and correct, I don’t see how there could’ve been any appellate review at all?

Mr. G. Garland Lyell, Jr.: Summarily, --

Justice Potter Stewart: Unless the dumb noble kind of a review that you suggest that Mississippi statute requires?

Mr. G. Garland Lyell, Jr.: My recollection is that there at least two of these show cause order who served and to give him an answer or opportunity to file a written response.

I forgot which Justice -- asking for written response as required in Mississippi I don’t think it is.

But that any contemnor who -- that I never heard of who desired to purge himself was -- has done so, for having anything to say in litigation or by way of apology.

Justice Hugo L. Black: I heard you say, it means offers some excuse for doing something, admits you’ve done something?

Mr. G. Garland Lyell, Jr.: Yes.

That’s my understanding of the word.

Justice Potter Stewart: But you -- on page 40 of the appendix, it stated that Martha M. Wood, and that was his lawyer as I understand it.

At that time, requested a hearing which request was denied now, is that true?

Mr. G. Garland Lyell, Jr.: What date was that, sir?

Justice Potter Stewart: I think it was 1969, 9:00 AM on January 27, 1969.

At that day, at which Johnson was found to be in contempt and there was a denial of a request for a hearing according to the --

Mr. G. Garland Lyell, Jr.: But had not he’d been previously afforded an opportunity to file a response in earlier.

Justice Potter Stewart: Now, where is that in the record?

Mr. G. Garland Lyell, Jr.: Part of Mississippi --

Justice Potter Stewart: Or in the appendix?

I've looked through it and I can’t find it.

Mr. G. Garland Lyell, Jr.: I haven’t seen the printed record.

In fact, this is an informal corpus appeal, is it not?

Justice Potter Stewart: Or you have --

Mr. G. Garland Lyell, Jr.: Then, I think the original record was up there, when I have to thank sheriff Almeda.

Justice Potter Stewart: Well, this was filed here on February 10, 1971.

Chief Justice Warren E. Burger: Which cannot be found in the appendix?

Mr. G. Garland Lyell, Jr.: From my information was that he had -- there were two hearings set and the first one, he didn’t even show up.

Chief Justice Warren E. Burger: Is it your position he defaulted in his opportunity to present evidence and litigation, or to purge or to claim

Mr. G. Garland Lyell, Jr.: I think so.

Chief Justice Warren E. Burger: And that the occasion that Justice Stewart is referring to then in your view was just the occasion to hear this judge’s sentence for contempt?

Mr. G. Garland Lyell, Jr.: Perhaps on second one but it is there on the second one.

My recollection is that he has given other judge to hear it and the rather make any defense which gets back to the proposition that if Judge Perry heard it, took testimony and actually had denial of whether or not he uttered these contemptuous words and conduct that and still found him in contempt, then under these various statutory statute on appeal which I think is even better than having a single judge, you got nine Supreme Court Judges just passionately reviewing the thing from a cold printed record and as illustrated by this Boston case completely annulling the contempt conviction.

Justice William O. Douglas: Mr. Lyell.

Mr. G. Garland Lyell, Jr.: Sir.

Justice William O. Douglas: As I understand, I'm looking at page 40 Mr. Justice Stewart referred to.

These are the proceedings and so it’s stated here before Judge Perry at nine o’clock in January 27, 1969, here, it’s cited that Martha M. Wood requested a hearing.

Her request was denied.

She then objected to the denial and this appears, Judge Perry stated that he had intended to give respondent a hearing under the contempt charge as the Court files ordering him to appear in a show cause proof.

But that since respondent had the audacity to go to federal court, and whether Judge Perry meant by that the original removal order or the affirmative jury suit or both is not clear, he was not going to give him a hearing?

Mr. G. Garland Lyell, Jr.: Well, I can’t answer that --

Justice William O. Douglas: You can’t say whether that did or did not occur?

Mr. G. Garland Lyell, Jr.: I can’t say it no.

Justice Byron R. White: Would you think that --

Mr. G. Garland Lyell, Jr.: What, sir?

Justice Byron R. White: When doing that brings this case within Mayberry?

Mr. G. Garland Lyell, Jr.: Well, I think Mr. Justice White that he is guilty of a summary contempt which would bear immediate imposition of punishment.

Unknown Speaker: Well, how do you know he said --

Mr. G. Garland Lyell, Jr.: But, but --

Unknown Speaker: How do you know he said these things?

Mr. G. Garland Lyell, Jr.: The only thing in the printed record is that he did it.

Unknown Speaker: Except that he never had an opportunity for a hearing to --

Mr. G. Garland Lyell, Jr.: Well, he didn’t --

Unknown Speaker: Testify the proceeding --

Mr. G. Garland Lyell, Jr.: Then the record show that he had one previous opportunity to appear and did not appear.

Justice William O. Douglas: I simply say Mr. Lyell.

Mr. G. Garland Lyell, Jr.: What?

Justice William O. Douglas: That appears here.

Well, from this it appears that he didn’t.

So, we don’t know whether had he have a hearing? Perhaps to take in the stand and had denied that stayed?

Justice Byron R. White: The only determination that he ever said it is by Judge --

Mr. G. Garland Lyell, Jr.: Judge Perry’s statement.

Justice Byron R. White: Who, perhaps, arguably at least shouldn’t have heard it at all?

Mr. G. Garland Lyell, Jr.: Well, I can only say this Mr. Justice White that when the conviction was appealed on the State Supreme Court, there was no complaint made that no effort made in the State Supreme Court and that you have a written record here that based on that ground that he didn’t have a chance to deny that he did this thing.

Justice Hugo L. Black: So, why is that statement on page 40?

What was it put there for?

Mr. G. Garland Lyell, Jr.: I'm talking about the previous opportunity.

Justice Hugo L. Black: Well, I'm talking about this time?

Mr. G. Garland Lyell, Jr.: This time?

What --

Justice Hugo L. Black: If the man has gotten up, he could be tried for contempt and he has asked for a hearing and they say they won’t give it to him in part of his audacity in going into the federal court.

Mr. G. Garland Lyell, Jr.: Well, my po --

Justice Hugo L. Black: Would that be accepted as a good defense by the Supreme Court of Mississippi to reject a man’s claim to be heard?

Mr. G. Garland Lyell, Jr.: I don’t think Supreme Court of Mississippi or this Court ought to say it except for anything other than the fact, did he commit this act which is gone under that completely and no complaints --

Justice Hugo L. Black: But he is asking here for a hearing only which means that he is denying something.

Mr. G. Garland Lyell, Jr.: Well, we accepted the fact in the record and I think we can (Inaudible) deny and nobody’s claiming that they won’t need a hearing to deny --

Justice Hugo L. Black: But, it is not --

Mr. G. Garland Lyell, Jr.: -- to deny that he did this thing.

Justice Hugo L. Black: You have this defense but didn't ask, didn't you?

His defense was not that he had previously been given an answer but he had the audacity to go on to federal court and try to get relief.

Mr. G. Garland Lyell, Jr.: Well, that was -- that was after the first show cause was issued.

Justice Hugo L. Black: Whenever it was, is that correct in Mississippi and do you consider it correct to his Attorney General to tell a defendant who is gone into federal Court that he has had the audacity to go there and you won’t hear anything else upon him?

Mr. G. Garland Lyell, Jr.: All I can say Your Honor that I wouldn’t have done a thing.

Justice Hugo L. Black: I thought of that.

Chief Justice Warren E. Burger: But counsel, counsel as I understand it.

This material on page 40, 41 etcetera beginning in 38 are the allegations set forth in the bill of exceptions, that’s not evidentiary matter in the sense of a record made at that time.

These are in the nature of allegations that would appear in a compliant.

Justice Potter Stewart: If I may suggests, it seems to me what they are -- they are the bill of exceptions, isn't this what the Supreme --

Mr. G. Garland Lyell, Jr.: Yes.

Unknown Speaker: Court of Mississippi decides to repeal upon?

Mr. G. Garland Lyell, Jr.: They have all of it in the record --

Unknown Speaker: Yes.

I mean, they have the bill of exceptions, do they not?

Mr. G. Garland Lyell, Jr.: I pursue it was in and I suppose the Court --

Unknown Speaker: And I gather that these are the exceptions which were taken to the proceedings, isn’t that right?

Mr. G. Garland Lyell, Jr.: I'm sure that was in the record of Supreme Court Your Honor.

Unknown Speaker: Yes.

Chief Justice Warren E. Burger: Well, my point counsel --

Mr. G. Garland Lyell, Jr.: Let me say --

Justice Hugo L. Black: In Alabama --

Mr. G. Garland Lyell, Jr.: Sir?

Justice Hugo L. Black: I think there is some similarity between Mississippi and Alabama proceedings.

If you have an exception in Alabama and I think it is in Mississippi, the statements of the facts tested to by the judge or exemplified as being the truth of what appeared as shown in the bill of exceptions?

Mr. G. Garland Lyell, Jr.: Well in Mississippi, you can get it two ways up.

You take the bill of exceptions and someone transpires in the courtroom which is not taken down by the Court reporter.

Justice Hugo L. Black: Because some of them are not there?

Mr. G. Garland Lyell, Jr.: And some things that are not there --

Justice Hugo L. Black: But what about those report that that is there and accepted as the bill of exceptions?

Mr. G. Garland Lyell, Jr.: The judge -- prepare the bill of exceptions, the judge if he agrees that those are transpired, he will sign it.

Justice Hugo L. Black: And then --

Mr. G. Garland Lyell, Jr.: And if he refuses to sign it, you can get two members of the bar who are present in the Court to sign it and then --

Justice Hugo L. Black: That’s what you call a bystanders bill of exceptions.

Mr. G. Garland Lyell, Jr.: Yes.

Justice Hugo L. Black: But here, you have a bill of exceptions appearing to us as being signed and being the bill of exceptions which states the facts that we should accept these facts, isn’t that right?

Mr. G. Garland Lyell, Jr.: Well, bill of exception that for what --

Chief Justice Warren E. Burger: What signatures -- what signatures appear on -- well, if I'm reading the correct document on page 44, you have three lawyers for Johnson have signed this petition and then the clerk of the Court had certified that this is the true and certified copy of what the lawyers have filed?

Justice Potter Stewart: That’s explain on page 43 an item in paragraph 15 under your statute of that two lawyers present in the Court as you told us to sign the bill of exceptions and he meant that the judge does not or will not and they sign it, and that’s the bill of exceptions.

Justice William J. Brennan: That’s what happened here, technically.

Justice Potter Stewart: Paragraph 15.

Justice William J. Brennan: Paragraph on the conclusion it says that Judge Perry refused to sign it and therefore the alternative of having two lawyers who were present to sign it, was adopted, was it?

Mr. G. Garland Lyell, Jr.: Well, I still get back to the proposition if the Court please that since this was a direct contempt in the premises of the Court which I must accept to the fact, because there was never been any denial or they have attempted to deny anything and any document that was filed or any argument that was made, I think in that respect, the Supreme Court of Mississippi could accept the trial judge’s statement as to what transpired.

But it seems to me it simply gets back to this and how can this man complain when Judge Perry could have summarily put this 30 days on him right then and there.

But he gets it two years later and as fully reviewed by the Supreme Court how can he complain?

Justice William J. Brennan: Well, I suppose he could complain if he never had a chance to deny it and he says, he never said it.

Justice William J. Brennan: Well, --

Justice William J. Brennan: He never had a chance to say that.

You hold premises that the judge in fact heard it and that he didn’t did say it.

Mr. G. Garland Lyell, Jr.: My premise is this Mr. Justice Brennan that while on that he heard it and he said he heard it but if he heard it, it was direct.

If he did not he hear it, it was constructed.

Justice William J. Brennan: Yes, but I gather whether direct or indirect, there was no contempt unless he said --

Mr. G. Garland Lyell, Jr.: Unless he said it.

Justice William J. Brennan: -- what he was accused to say.

Mr. G. Garland Lyell, Jr.: And have contumacious --

Justice William J. Brennan: And I gather he saying, I never have the chance to be heard or on whether I've said it or not?

Mr. G. Garland Lyell, Jr.: Well, they never.

I can only get back this, they never even intimated that this event did not transpire.

Chief Justice Warren E. Burger: Counsel in the appendix or anywhere else, do we have any record, any account of what took place when Johnson failed to appear in response to the first order to show cause as you said, he failed to appear?

Mr. G. Garland Lyell, Jr.: (Inaudible)

Chief Justice Warren E. Burger: Would the failure to appear in response to in order to show cause at a fixed time and place, be in itself a contempt under Mississippi law?

Mr. G. Garland Lyell, Jr.: Would it be what, sir?

Chief Justice Warren E. Burger: Would that in itself be a contempt, the failure to appear in response to an order?

Justice Potter Stewart: What happened was there was a petition for removal in the District Court in response to the first order to show cause, was there not?

To the federal court, do I misunderstand that?

Mr. G. Garland Lyell, Jr.: I understood that. From my understanding, that’s correct.

Justice Potter Stewart: That’s what happened and that could hardly be contemptuous --

Mr. G. Garland Lyell, Jr.: It was remanded.

No sir.

Justice Potter Stewart: No.

It was a petition to remove the case to the United States District Court and the Court held that petition for a matter of several months as I understand it.

And has been added it to the state judge and there followed the second order to show cause, wasn’t that it?

And then, they came to the Court in response to that and according to that what this record shows, they asked for a hearing and they were denied a hearing.

Now, aren't those facts and if not, what are they?

Mr. G. Garland Lyell, Jr.: Well, I remove the first one to the federal court.

Justice William J. Brennan: Well, --

Mr. G. Garland Lyell, Jr.: Why not defend yourself, Your Honor.

Justice John M. Harlan: You wouldn’t, I gather is contempt to remove his --

Mr. G. Garland Lyell, Jr.: When he asked such a complete review by the State Supreme Court on any conviction contempt and to say on whether that type of statute is unique in Mississippi or wide spread but to me it’s --

Justice Thurgood Marshall: But if you go and say that they could not consider disqualification on the trial judge where it's not in his presence.

As if Mississippi Supreme Court is correct.

Mr. G. Garland Lyell, Jr.: Yes.

Well, I think.

Justice Thurgood Marshall: Where as if it had been tried before another judge, you could have petitioned the Court and sought to disqualify?

Mr. G. Garland Lyell, Jr.: Now, that’s -- that’s what it said.

Yes sir.

Justice Thurgood Marshall: Well, isn’t that additional reason, why it should have gone to another judge?

Mr. G. Garland Lyell, Jr.: Well, as I say Mr. Justice Marshall, we all have a different ways of doing things and I think if this have been transpired, he should have been summarily punished but I still I think he was better off when given an opportunity.

And with the sheriff, the judge could’ve said, “Mr. Sheriff, take this man outside and (Inaudible) contempt take him up to the jail.

He didn’t do that, he gave him a show cause hearing, an opportunity and he didn’t take it back.

Then he removed at federal court.

Justice Thurgood Marshall: What about a show cause hearing that says you can’t say anything?

Mr. G. Garland Lyell, Jr.: He didn’t say it that first show cause hearing --

Justice Thurgood Marshall: Oh, I don’t know, what happened to the first hearing?

Mr. G. Garland Lyell, Jr.: They removed it at the federal court.

Justice Thurgood Marshall: Well, I mean, we don’t know what happened to the first hearing.

Mr. G. Garland Lyell, Jr.: Nothing because this petitioner removed the thing to the federal court.

Justice Thurgood Marshall: Which he had a perfect right to do.

Mr. G. Garland Lyell, Jr.: A perfect right to do it but they had perfectly proceeded to file in the state courts.

Chief Justice Warren E. Burger: You have anything further counsel?

Rebuttal of Stephen W. Porter

Mr. Stephen W. Porter: No, Your Honor.

Chief Justice Warren E. Burger: Very well.

Thank you, Mr. Porter.

Thank you, Mr. Lyell.

The case is submitted.

Featured:

Mayberry v. Pennsylvania - Oral Argument

Thu, 23 Aug 2012 18:10:07 +0000

Case:

Mayberry v. Pennsylvania

Media File:

121_19701217-argument.mp3

Related Transcript:

121_19701217-argument

Transcript:

Argument of Curtis R. Reitz

Chief Justice Warren E. Burger: We will hear arguments Number 121, Mayberry against Pennsylvania, is the counsel ready?

Mr. Reitz can you conveniently, do you think without discommoding yourself, present a section of your argument now in about seven minutes?

Mr. Curtis R. Reitz: I’ll try.

Chief Justice Warren E. Burger: Before we recess.

Mr. Curtis R. Reitz: Mr. Chief Justice, may it please the Court.

I think it's fortuitous that the morning ends with the case that involves a different kind of speech.

We have here a criminal contempt case arising from Pennsylvania which is in my research unprecedented in the law of criminal contempt.

We have a defendant who was on trial in 1966 under two very serious charges for prison breach and for holding hostage, in the course of a prison breach, charges which had a potential of life imprisonment under the second of those charges.

The trial lasted 22 days, 22 trial days, it stretched from November 7 until December 22 on a calendar.

During those 22 days of the defendant and two co-defendants were representing themselves on these very serious charges.

At the conclusion of the trial, after the jury verdict had been brought in on 22nd day, the trial judge opened the next session of Court on Monday morning and excoriated all three defendants, summarily convicted them of criminal contempt and held that as to 11 separate days, although, there were multiple incidents involved, that petitioner Mayberry had been guilty of criminal contempt.

On each one of those 11 charges as he recited the facts as he recalled them, he imposed a sentence of a minimum of one year and a maximum of two years in state prison.

After each one of those sentences following the first, he directed that each one of those sentences be served consecutively.

So that the first of his impositions of sentence was a sentence in aggregation of 11 years at a minimum and 22 years at a maximum for criminal contempt.

Chief Justice Warren E. Burger: Now, clarify for me if you will Mr. Reitz the relationship of these sentences collectively to the sentence on the substantive charge.

Mr. Curtis R. Reitz: He then proceeded Mr. Chief Justice to sentence on a substantive charge and he gave a sentence for prison breach of 10 years which was the maximum.

Five years minimum, 10 years maximum which was the maximum permitted by the statutes of Pennsylvania for prison breach.

Chief Justice Warren E. Burger: Now, is that consecutive?

Mr. Curtis R. Reitz: That was also consecutive.

He then imposed a sentence of 30 years maximum, 15 years minimum for the charge of holding hostage.

The aggregate of all of that was 40 years on the substantive crimes, 22 years for criminal contempt or a net sentence of 62 years with a 31-year minimum.

That was the sentence imposed that morning.

I'm told, although, I have not seen the documents itself that a few days later, he reversed the order of sentencing so that the -- although, he started that Monday morning with the criminal contempt sentence and then followed with the substantive crimes but he directed the sentence on a substantive crimes.

For 40 years, he served first and then the 22 years for criminal contempt.

But the net effect of the sentencing that morning was 22 years for criminal contempt, 40 years for substantive crime, 62 years total.

I am aware of no criminal contempt sentence which comes even within a long distance of that sentence.

There had been many studies made of criminal contempts over the years.

None of them reflected a sentence that is even one-seventh, who’s great for any kind of criminal contempt.

In that same session, the judge sentenced the two co-defendants also for criminal contempt.

On exactly the same methodology, he had it this per diem method and it was two years for each day on which he found a criminal contempt had been committed.

The sentences on the co-defendants were somewhat shorter, it were six days in the case of one defendant and seven days in the case of another.

Chief Justice Warren E. Burger: Would say that their conduct was as aggravated as it was with respect to this petitioner?

Mr. Curtis R. Reitz: In some instances, Your Honor, the conduct I would think would be substantially worse.

One of the co-defendants verbally threatened the life of the judge which never happened in the case of petitioner Mayberry.

Some of the obstreperous, disruptive conduct on the part of, one of the co-defendants, it seems to me that have been substantially worse from reading the records.

The 11 contempts found against the petitioner Mayberry involved nine counts, nine charges of what I have described as purely verbal epithets directed at the judge.

They were quite brief.

They're printed in total in the appendix.

They ranged in seriousness over a considerable variety of hyperbolic.

Chief Justice Warren E. Burger: I take it, if you would agree that these were very aggravated episodes of the conduct and utterance, would you not?

Mr. Curtis R. Reitz: Oh, they would be conduct Your Honor, which from any attorney, I think, would have been thought of as very aggravated in the instance of a layman defending himself, not an educated layman defending himself in a very serious Court with the kind of background from which he comes and the life which he has led, I’m not -- I don’t think I would have put the label aggravated on the verbal contents.

Chief Justice Warren E. Burger: Even after repeated, you wouldn’t concede this was aggravated?

Mr. Curtis R. Reitz: The warnings were repeated Your Honor, but the incidents for example, late in the trial, one of the two-year sentences is imposed for the defendant more or less expostulating an anger after having been prevented from developing a line of questioning that he was not arguing with fools.

The judge inferred from that, I think, relatively properly that the defendant was referring to the judge as a fool.

For that, he got two years in jail.

Justice Potter Stewart: You would concede, I suppose that the conduct of the defendant throughout this trial was fully outrageous, would you not?

Mr. Curtis R. Reitz: It is conduct which we certainly had not condoned.

Justice Potter Stewart: I don’t mean every moment of the trial but only -- but that it was continually and quite outrageous, would you?

I mean, don’t we begin with that hypothesis?

Mr. Curtis R. Reitz: I would not use the word “outrageous” Your Honor to describe --

Justice Potter Stewart: When he called the judge “a stumbling dog”, he called him a “son of a bitch”, he called him -- those are the two, that I remember from reading the briefs.

He called him a good many other things?

Mr. Curtis R. Reitz: He did indeed.

Justice Potter Stewart: On Court.

Mr. Curtis R. Reitz: He had some rather exotic like a --

Justice Potter Stewart: Some very foul language but the --

Mr. Curtis R. Reitz: I think the level of outrage that one develops in this kind of a case defends a good deal on what one finds the level of expectation from the speaker.

Chief Justice Warren E. Burger: I think we’ll suspend here, Mr. Reitz.

Mr. Curtis R. Reitz: May it please the Court.

Before we recessed for lunch we had explored a bit of the factual history of this case and had begun some discussion of the seriousness of the verbal conduct on which the trial judge in this case sentenced a petitioner to so many years in jail.

I think, it’s fair to say that it’s perfectly obvious that the judge himself took a very serious view of the conduct of petitioner.

Indeed, the sentence alone indicates that he viewed it as the most serious contempt case of all time -- confirms that.

Whatever adjective one might say is adequate to describe the conduct and I think that will depend on many points of view.

It is perfectly clear that the case was treated as a very serious case and I would not urge the Court that this conduct was either meritorious or even to be condoned.

What I do urge on the Court and I think this is the critical point and it is underscored by whatever view of seriousness one takes.

But the procedure employed in handling this case was grossly disproportionate to the seriousness of the crime even if one views it as a rather petty crime.

The amount of procedural due process afforded to this petitioner in handling this case was nilled.

Chief Justice Warren E. Burger: But was it basically any different from the procedural due process that he had in the trial of the substantive charges?

Mr. Curtis R. Reitz: Oh, indeed Your Honor.

On a substantive charge he had notice.

He had the right to counsel.

He had the right to make preliminary motions including a motion to disqualify the judge.

Chief Justice Warren E. Burger: But what he had done about counsel in the substantive case?

Mr. Curtis R. Reitz: In the substantive case, he had waived counsel.

He had insisted on the --

Chief Justice Warren E. Burger: Although from that, is that he rejected affirmatively permanently, didn’t he?

Mr. Curtis R. Reitz: He had indeed.

He insisted on his right to try himself in that case which he is permitted under the Constitution.

But he was afforded the right to counsel.

Counsel was offered to him and indeed despite his waiver, the trial judge appointed the public defender to serve as an advisor to him during the trial and he was present throughout the trial and available for resource.

There was a jury, there was evidence produced, at time for argument not only on the issue of guilt but on the issue of a litigation of sentence.

The full panoply of a trial was followed in the case of the substantive crime.

None of that followed in the contempt case.

Chief Justice Warren E. Burger: May I ask this Professor Reitz.

Is it your submission that the real vice here is the proportion in terms of procedure or the disproportion in terms of panoply?

Mr. Curtis R. Reitz: MI think they go together Your Honor.

If the sentence in this case had been in the tradition of sentences for courtroom in de quorum a few days or a few dollars that happened in, for example, in the Fisher and Pace case, this Court reviewed many years ago, the amount of procedure that we traditionally have required in that kind of a case is rather slight, and indeed if the judge does as in the Fisher case impose or threaten to impose the sanctions during the course of the trial, the procedural requisites follow from the necessary situation.

In this case, we have an obviously much different situation of a very serious crime in the mind of the judge and it seems to me the nature of the penalty quite reinforces the total absence of any process.

There was no opportunity in this case to do many of the things that the commonwealth in the briefs suggest petitioner did not do.

He did not have an opportunity to challenge the judge.

He did not have an opportunity to waive counsel.

He did not even have an opportunity to ask for counsel.

He was suggested that he might have moved after the fact to modify sentence.

When one looks at the record as to what happened that Monday morning on December 22nd, after the judge had finished imposing the 22 years of sentence on the petitioner, he asked to be allowed to speak and the judge refused to hear a word.

At that stage, the judge would have none of his further participation in the courtroom proceedings.

So, the absence of his own advocacy at that stage to which the commonwealth alludes seems to me to be quite irrelevant.

In addition, --

Justice Hugo L. Black: Is the full record in the Court?

Mr. Curtis R. Reitz: It is indeed Your Honor.

The entire stenographic transcript is here.

We have printed only a small portion in the appendix.

Justice Hugo L. Black: It’s a long, long trial.

Mr. Curtis R. Reitz: It was a trial that lasted for 22 trial days for the last day being entirely sentencing, so it is a very long trial.

There was something in excess of 3,000 pages of stenographic transcript in the trial.

In addition to the fundamental due process argument, we make a separate argument which is in some ways even more basic and that was the opportunity -- petitioner was denied the opportunity to make any statement in mitigation of punishment in this case.

Chief Justice Warren E. Burger: Wouldn’t that have been somewhat ceremonial here?

Mr. Curtis R. Reitz: It might indeed had been ceremonial because of the obviously overwrought state of the trial judge with an impartial tribunal, I am not convinced that a fairly substantial argument could not have been made in mitigation of the severity of the conduct.

Chief Justice Warren E. Burger: Of the conduct or the sentence?

Mr. Curtis R. Reitz: Of the conduct.

Chief Justice Warren E. Burger: How could you mitigate the conduct?

What explanation could possibly, even approach justification?

Mr. Curtis R. Reitz: As you study the record Your Honor, I don’t think one would need to approach justification in order to find there were indeed issues of provocation or explanation that might in some way have tempered the fury.

The defendant in this case for example attempted several times to introduce evidence that went to his conduct, immediately after he was apprehended.

The prosecution in the case in chief had put on a witness who testified that after he was apprehended, he had still resisted very forcefully, the arresting officer and there was a fight that took place going down the stairs in the hospital in which he was apprehended.

Petitioner several times attempted to introduce evidence that would have contradicted that.

Witnesses who would’ve denied that he was then in that state of flagrant resistance.

Every time he tried to produce that evidence, he was afforded by objection on the part of the District Attorney without explanation and objection sustained.

In the face of this, --

Chief Justice Warren E. Burger: Suppose that meant that the trial judge simply was taking position that there was no evidence that could bear by way of litigation or explanation of his conduct during the course of the trial.

I suppose if the trial judge had the benefit of Illinois against Allen at that time, he might well have removed this man from the courtroom, after his second outburst, but of course this was tried on before Illinois against Allen was --

Mr. Curtis R. Reitz: Yes, sir.

It was tried in 1966.

Chief Justice Warren E. Burger: Yes.

I wonder if our real problem in this case isn’t the severity of the sanctions and frankly that’s the way it seemed to me and I refer to that on that theory and then I maybe I've diverted from it?

Mr. Curtis R. Reitz: No Your Honor, I have not the slightest doubt that there is an enormous problem here with the severity of the sanction.

It is so far out of keeping with any of the customary standards to which we have had look in the past for sentencing and contempt cases that it simply looms as an unacceptable judicial act.

Justice William O. Douglas: Mr. Reitz, suppose we were to agree with this, that you will not-- about position, what we can do about it?

Mr. Curtis R. Reitz: That’s the major difficulty with the point Your Honor.

We do not have in Pennsylvania as we do not have in the federal statutes, a statutory maximum on sentences.

So far as the statute is concerned, the sky is the limit.

We have and I have attempted to collect in the brief, a series of benchmarks to which one could look for some sort of a ceiling to be imposed from the outside on what a sentencing judge can do --

Justice William O. Douglas: What would the --

Mr. Curtis R. Reitz: We have many statutory ceilings, none over six months.

Justice William O. Douglas: What would the constitutional provision be to which we've relied?

Mr. Curtis R. Reitz: The constitutional provision on which we rely in the brief Your Honor, is the Eighth Amendment, prohibition of cruel and unusual punishment.

Justice William O. Douglas: That’s the only one you think that would be applicable.

As far as this Court’s power to do anything about the sentence?

Mr. Curtis R. Reitz: I believe so, Your Honor.

That one might --

Justice William O. Douglas: I suppose --

Mr. Curtis R. Reitz: One might try to make a substantive due process argument but I don’t think that gives us any greater precision as to the limitations that one could impose through the Constitution on state trial judges.

It --

Justice William O. Douglas: Well, certainly at least we can do what we did in the Yates, in this case, can’t we?

Mr. Curtis R. Reitz: Quite right.

This Court lacks the supervisory power.

It lacks the normal, very broad appellate review that the Court has exercised on numerous occasions in reducing what it felt to be mild excesses by comparison on the part of federal trial judges.

The 11 consecutive counts, concurrent counts, in the Yates case impressed the Court as being grossly disproportionate to the offense in that case and the Court was able through a supervisory power to deal with that problem.

Chief Justice Warren E. Burger: We decided you were right on the constitutional argument, but what could be the mechanism to deal with it, undertake to deal it with ourselves or to remand it for reconsideration in a calmer atmosphere?

Mr. Curtis R. Reitz: I think Your Honor.

If this Court finds that the cruel and unusual punishment or the substantive due process argument has merits, some guidance would have to be created as to the outside limits that would be permitted for this type of sentence.

A remand of the Pennsylvania Supreme Court which has already faced this issue and rejected it with one dissenting justice, is not likely to generate the kind of standards that one would need for a national Constitution.

Chief Justice Warren E. Burger: Well, aren’t state courts capable of applying the federal constitutional provision or provisions that you rely on.

What is different about their approach?

I'm not speaking of the instant case in terms of the action.

I'm speaking of establishing standards.

Shouldn’t they be established in the state courts in the first instance?

Mr. Curtis R. Reitz: There’s great virtue to that in some instances and many of the scholars of federal jurisdiction urged that in the ultimate, the only basic safeguard for all constitutional rights are state courts that all federal courts jurisdiction is subject to statutory limitation by Congress.

But in this instance, we are in I think such a brand new area with cruel and unusual punishment standards that unless the Court is able to provide some reasonable guidance to state courts, my expectation would not be that the results would be a very happy in the first instances.

Justice William O. Douglas: May I ask Mr. Reitz, does the Pennsylvania Supreme Court have a power comparable to our so-called supervisory power which I guess is what we used in the Yates case?

In other words, could that Court have reduced the sentence?

Mr. Curtis R. Reitz: The Pennsylvania courts take a very narrow review, a narrow position on their appellate review sentences generally.

Their law of contempt is relatively unformed.

This is the first case, which I'm aware on which the Pennsylvania Supreme Court has ever faced an in-Court contempt problem.

Justice William O. Douglas: Do I correctly infer from Justice Jones’ treatment of the questions as whether the sentences constitute cruel and unusual punishment that that’s the only way this was put to the Pennsylvania Supreme Court that they did constitute cruel and unusual punishment?

Mr. Curtis R. Reitz: That argument was put, that was not the sole argument put --

Justice William O. Douglas: Well, I notice the opinion doesn’t seem to address itself to any other basis for the challenge to the sentence.

I'm looking at page 14 of the record.

Mr. Curtis R. Reitz: In the Pennsylvania Supreme Court, all of the arguments there before this Court were raised in one fashion or another, Mr. Mayberry there represented himself.

The Court appointed an attorney to represent him, who also filed the brief and they raised between them every issue that is now before this Court.

Chief Justice Warren E. Burger: Well, Professor Reitz, didn’t Justice O’Brien assume in his separate opinion that there was something in the nature of supervisory power that imposed the duty on the Supreme Court of Pennsylvania to examine the sentence for the contempt?

Mr. Curtis R. Reitz: Justice O’Brien relies on a cruel and unusual punishment argument.

He is persuaded that in comparison with the statutory maxima for a whole raft of offenses including second degree murder being less than the sentence imposed on this defendant for conduct which bears no resemblance to the atrocious assaults and homicides that have very lesser statutory maximum that the sentence was impermissible.

Since, he was a lone justice on that issue, he was not forced to face the question of what remedy could be provided.

Justice Byron R. White: What's your view in the offenses towards this Court?

Mr. Curtis R. Reitz: I think an argument can be built on the basis of existing data that a maximum of six months is a customary standard that is now so well entrenched by statute and case law that it is the outside limit for a sentence in a contempt case absent a statute permitting a longer one.

All the statutes stop short of that.

Many as I've indicate stopped far shorter in terms of hours or days for such punishment.

Chief Justice Warren E. Burger: If the judge had made all these sentences concurrent one with another, there were 11, weren’t they?

Mr. Curtis R. Reitz: There were 11.

Chief Justice Warren E. Burger: If it made him concurrent, would you be here?

Mr. Curtis R. Reitz: Yes indeed, Your Honor.

I think we would, that is --

Chief Justice Warren E. Burger: It is two years on each, was it?

Mr. Curtis R. Reitz: Two years on each and that is still twice as long as the Yates case which was one year, 11 times concurrently and that is still in my judgment an enormously over broad sentence for the kind of contempt that this record contains.

It is only the because of the fact that the multiplier of 11 is added that the seriousness of that first sentence can be lost sight of.

A two-year sentence is itself, one of the most severe in the whole catalog of criminal contempt sentences.

Justice Hugo L. Black: Suppose they had instead of sentencing him for contempt put the charge against him on the legislative enactment which provided that a person who had appeared before the Court in a serious manner as this man here had attempted to stop it, he committed a crime, and tried him, indicted, tried him before a jury, given him a lawyer, given him all the protection that could be afforded.

Would you still argue as seriously as you do now, that that would violate the cruel and unusual punishment charge?

Mr. Curtis R. Reitz: If the same sentence were imposed as a result of that and the statute provided for a crime of obstructing justice --

Justice Hugo L. Black: That’s right.

Mr. Curtis R. Reitz: I would not make the argument, Your Honor.

Indeed, I make the point in this case --

Justice Hugo L. Black: Well, that really is the basis of the complaint, isn’t it, not the cruel and unusual punishment section?

Mr. Curtis R. Reitz: Well, Your Honor.

In this case, the Pennsylvania contempt statute provides a limit requiring obstruction of justice.

The first nine counts in this case to me cannot be brought within the language of obstructing justice.

Justice Hugo L. Black: Yes, perhaps --

Mr. Curtis R. Reitz: They were insolent, they were discourteous but they were not in any way blocking the advance of the trial.

Justice Hugo L. Black: It is treated as contempt, all is just treated as any other crime.

Now, you want to punish the man for doing something seriously wrong.

They should take fix this punishment at 25 years and he’d stood up in this courtroom, decide in this table of the Court and had to be taken control of and it interfered with the Court, put foul names in against it, would you think 25-year that the legislative department would be committing and violating the cruel and unusual punishment to say that’s so serious?

Mr. Curtis R. Reitz: If you may Your Honor, I take a very different view if we have a legislature, having faced the question and establishing a statutory parameter to the permissible sentences.

In this case, we have no such legislative judgment to which either the state judges or this Court can look --

Justice Potter Stewart: Well, I suppose, the legislative judgment is to put no limit on it.

Now, you do have a statute in Pennsylvania, appears on page 2 of your brief and I suppose the Pennsylvania legislature can be assumed to be aware of the action of the legislatures in many other states as it put various limitations on it and this one didn’t.

Isn’t that a legislative judgment?

Mr. Curtis R. Reitz: Well, Your Honor that statute was passed in 1836.

Justice Potter Stewart: Whenever it was passed?

Mr. Curtis R. Reitz: It has not been reviewed since I think all of the statutes in which they do appear statutory maxima have been of more recent vintage in that.

There has been nothing prior to this case in which the Pennsylvania legislature or any other legislature could be given notice of the enormous extension of customary power to which a trial judge might go.

Justice Hugo L. Black: What you’re doing is talking about a case with a same judge as a witness to it who is assaulted by, who is guilt (Inaudible), tries the case, is not a separate crime where he is put before another judge where the jury disappears, given a lawyer and given all the protections of due process of law as I understand, what I understand, due process to the one which is a trial in courtroom on unbiased judge in an unbiased jury?

Mr. Curtis R. Reitz: I could not agree with you more Your Honor, the requirements --

Justice Potter Stewart: On the other hand, Mr. Reitz, may I suggest, if in this summary procedure, the conclusion of this trial judge for all of this contemptuous behavior had summarily sentenced the fellow for three days in jail, would you find that objectionable or violation of any constitutional right?

Mr. Curtis R. Reitz: No, Your Honor, I would not.

I would accept as so well grounded in our law of criminal contempt that a judge has within that very narrow range of customary penalties that the kind of restraint that this Court referred to many years ago in the Anderson case, that that is not -- that can be handled without the full panoply of a trial.

Chief Justice Warren E. Burger: Where do you draw the line?

Would you undertake to draw line?

Mr. Curtis R. Reitz: Well, I suggested in the --

Chief Justice Warren E. Burger: Within the 22 years?

Mr. Curtis R. Reitz: I've suggested in the brief that a place to stop is the place this Court stopped in the Bloom case, in regard to the right to jury trial.

I do not think that is the right place to stop.

I do not subscribe to that.

There was of course another jury trial and --

Unknown Speaker: (Inaudible)

Mr. Curtis R. Reitz: In light of De Stefano case Your Honor, I think it would be futile to make that argument now.

I think the line has to be drawn at a very low level at the point where the number of days and I would think it is number of days, reaches beyond the stage where we can tolerate the total absence of anything we call a trial.

And that it seems to me has to be very short and has to come within I think very well recognized ancient limitations.

Chief Justice Warren E. Burger: Well, just test it for size, suppose you gave him 60 days on first offensive conduct, would you think that was acceptable?

Mr. Curtis R. Reitz: I would not Your Honor.

Chief Justice Warren E. Burger: And then, when it is repeated he gave him another 60 days and continued that right through then he would have what -- 22 months wouldn’t he?

Would you be here then?

Mr. Curtis R. Reitz: Yes, indeed.

I think that is the point at which certainly a trial becomes quite relevant, an impartial judge and the opportunity to make the necessary defense and litigation --

Chief Justice Warren E. Burger: No, but then let’s stop.

Let’s go back.

The first misconduct occurs after the jury has left the room for the day.

He calls him in and sentences him to 60 days for that offensive conduct and you concede, no other process necessary, I take it.

Now two days later, he repeats that and the judge repeats the same process.

You mean that after the first few bites, they're all free?

Mr. Curtis R. Reitz: No, Your Honor.

I would not even concede on the first 60 days.

Chief Justice Warren E. Burger: You, you wouldn’t?

Mr. Curtis R. Reitz: 60 days is a --

Chief Justice Warren E. Burger: The jury trial for 60 days --

Mr. Curtis R. Reitz: No.

No, a trial Your Honor.

This Court has drawn the limit of jury trials for the moment of six months.

It seems to me that at least one can say that six months is the line that which one is now clearly entitled for trial.

I think that is a necessary almost a priori argument from the Bloom decision itself but it seems to me that’s way below six months before one can say that you have a penalty, that is so trivial, so much a reprimand, so much within the ambit of work.

Contempt has traditionally lane of discipline of lawyers.

If one looks at contempt cases, it’s the lawyers who are usually the defendants in contempt cases.

In those cases, the remedies are as the appendix in our brief indicates extremely short, a matter of one, two, three days and in that range I think, the custom is now well-established that a judge can impose that kind of sanction.

I would not attempt to persuade the Court to change that now but 60 days is well beyond that limit Your Honor.

Well beyond.

Justice William J. Brennan: Of course, this gentleman wasn’t a lawyer.

That commitment of the -- maybe it imitates -- fundamentally this might be wish to deter lawyers whose jobs depend on their acting like lawyers.

This gentleman was representing himself --

Mr. Curtis R. Reitz: Well, this Court has faced and I think well resolved the problem of deterrence of persons who would disturb the courtroom in the Allen case.

There are many devices which can be used that do not involve the imposition of criminal punishments, summarily imposed by the judge that can be used for deterrence, this is not the only deterrent.

Chief Justice Warren E. Burger: The problem in Illinois against Allen power of contempt was specifically reserved in Justice Black’s opinion.

Mr. Curtis R. Reitz: The power to sight for contempt, not the power to impose a contempt sentence and I think as Justice Black’s opinion makes clear that citation is a notice which requires a subsequent trial.

A trial at which the defendant as Justice Black noted could again be disorderly.

But I read nothing in the Allen case that would justify summary in position of criminal punishments under the heading of contempt.

Chief Justice Warren E. Burger: Unless it were three days?

Mr. Curtis R. Reitz: In the Allen case, it’s peculiar Your Honor.

Chief Justice Warren E. Burger: Now, our reservation before was that if it were three days, you would think that was alright?

Mr. Curtis R. Reitz: I would indeed.

I would indeed.

Chief Justice Warren E. Burger: Very well.

Miss Los.

Argument of Carol Mary Los

Ms Carol Mary Los: Mr. Chief Justice and may it please the Court.

We were originally of the opinion that the entire trial transcript should be printed in the appendix for the Court because we felt that only by reading the entire trial transcript could this Court get some idea of the feelings, and the tensions, and the pressures that existed throughout this long five week trial.

Unfortunately, going through the trial transcript we realized that by the court's stenographer merely really taking down the words that happened that so much missed the Court’s stenographer or could not be taken down simply in the method of words that this Court could not feel simply from a cold record, the tensions, and the pressures that existed that day or the response that the petitioner was able to evoke, not only from his co-defendants or from the jury, but from the spectators who were in the courtroom at the time.

Apparently, it seems to me that the petitioner might be able to take advantage of this cold record in denying, first of all, that he is an extremely intelligent and articulate man.

And secondly, that he was not the ring leader or the instigator of all of these contempts.

If I may just for a few moments to recap some of the events of the trial that might not necessarily be printed in the trial record.

This was the second trial that had begun in these charges.

The first ended in the mistrial when the petitioner alleged that a prospective juror had seen him handcuffed to a sheriff, a mistrial was granted and the petitioner boasted at this time that he would never be brought to trial in these charges, that if all those failed, he would break out of jail.

He threatened the prosecutor and stated that prosecutor would never see him from the trial in these charges for prison breach.

These weren’t idle threats.

Mayberry had previously broken out of the Eastern Penitentiary in Pennsylvania, the Western Penitentiary in Pennsylvania, the Graterford prison he attempted a prison breach and during the course of this trial, he was able to break out at the Allegany County Jail.

This prison breach occurred almost in the middle of this particular trial.

At the time it occurred on a weekend, the petitioner and his two co-defendants as well as three other inmates of the Allegany County Jail broke out, kidnapped the city police officer, who was on duty at that time and were able to get a good distance from the city before they were captured.

It was only because the gun that they had secured from the police officer misfired that a police officer was not killed at close range.

As I say, this occurred during the course of a trial and does not necessarily appear as the matter of record.

But in any event, petitioner from the start was deemed to be a very dangerous individual.

The courtroom, understandably contained the great number of sheriff’s deputies.

Trial began before Judge Fiok and Mayberry as has been set forth before decided that he wanted to act as his own counsel and refused the help of counsel that was appointed for him.

Counsel, nonetheless appeared throughout the trial and was there at the sentencing for the contempt citations.

Mayberry requested from the trial judge that he permitted to come to sidebar, whenever he wished, the trial judge refused this.

First of all, I believe that because Mayberry was a very dangerous individual and a search of Mayberry’s legal papers during the trial revealed that he had placed sharpened razor blades inside of his legal pad.

Secondly, one of the co-defendants had been throwing pencils at the judge, during the trial.

So I mean, there’s a certainly reasonable grounds to believe that the judge himself might have feared that his life was in danger.

There was a bodyguard especially assigned to the prosecutor after the threats and the petitioner became so numerous across the counsel table.

These again are not recorded in the trial transcript because the court stenographer was not within the hearing range.

Nonetheless, the request for sidebar was refused.

Mayberry started a series of taunts to the judge which continued throughout the trial.

His attitude was this, “I want an explanation that satisfies me right now and if I don’t get it, I'm not going to continue with this trial.”

For example, a very good example I think occurs at the end of trial when he closes to the jury.

He is told that he will only be permitted an hour to close.

The end of the hour, he is given an additional 15 minutes, Mayberry decides that he wants just to continue his closing to the jury.

When he refuses to hear the judge’s warnings, he is taken out of the courtroom and another co-defendant is permitted to close.

When Mayberry is brought back in again, he gets off and starts closing to the jury again, he’s again taken out of the room.

So that the trial judge attempted on several occasions, various different methods, he had him taken out of the room at least 10 or 11 times.

When brought back, Mayberry proceeded the same way as when he had left off, when he was taken out of the room.

He was bound and gagged.

But unfortunately, he was able to shout through the gag and pound on the floor.

His shoes and the shoes of his co-defendants were removed.

He still raised such a ruckus that the trial judge was unable to charge to the jury.

Now, when Mayberry would direct one of his assaults to the trial judge, petitioner’s brief would have you believed that nothing merely happen except the judge said, “Continue on with your questioning.”

What happened precisely was this, Mayberry was greatly amused by the fact that there were loud gossips in the courtroom that the jury was shocked that some of the spectators were shocked.

He would burst out into this loud laughter which was followed by his co-defendant, who would hoot and howl, and applaud, and stamp their feet.

And in fact, the reason we say that Mayberry was the ring leader here was that when he would return to his seat, he would lean across to the prosecutor and say, “Now, watch this.”

And would stand up and repeat something.

Justice Potter Stewart: There were two co-defendants, were there Miss Los?

Ms Carol Mary Los: Yes, they were Your Honor.

Justice Potter Stewart: And were they cited for you?

Are -- they haven’t --

Ms Carol Mary Los: Yes, there were.

What Mayberry did was he would lean to them and say, “Now, it’s your turn”, or after he would repeat something, if one of the men wouldn’t get up, he’d give him a nudge inside and the co-defendant would spring up and direct some abuse to the judge.

Justice Potter Stewart: And they were both found guilty of criminal contempt, were they?

Ms Carol Mary Los: All three of them were, Your Honor.

Yes.

Justice Potter Stewart: And then what happened to their cases in the Pennsylvania Court?

Ms Carol Mary Los: They did not take the cases on appeal.

Justice Potter Stewart: The co-defendants.

Ms Carol Mary Los: That is true.

Justice Potter Stewart: What sort of sentences did they get?

Ms Carol Mary Los: They got one to two year sentences precisely as Mayberry had. Only they were not cited for contempt as many times.

I believe one was cited six times and the other was cited for seven different occasions during the trial.

Justice Potter Stewart: So, they got 6 to 12 and 7 to 14 respectively?

Ms Carol Mary Los: I believe that is true.

Yes, Your Honor.

Justice Potter Stewart: And no appeal?

Ms Carol Mary Los: I do not believe that there was an appeal taken.

At least, not to my knowledge.

Justice Potter Stewart: Is this very grounded picture you’ve given us, is that what one gets on the record or were you at the trial, Miss Los?

Ms Carol Mary Los: No.

I was not at the trial but I had the benefit of talking with the prosecutor on numerous occasions and again, I was in the law school at the time of this trial.

But there was a great deal of publicity and in fact, that this was a case of some notoriety at the time.

Justice Potter Stewart: This is in Pittsburgh?

Ms Carol Mary Los: Yes, Your Honor.

This is in Pittsburgh in Allegany County.

Incidentally, after Mayberry would nudge one of his co-defendants and asked them to indicating to them to stand up and raise some ruckus.

He would then after they had addressed something too rude to the trial judge, he would stand up and ask for a mistrial and when that was denied, he would ask for severance on the grounds that he was prejudiced in front of the jury about what his co-defendants had said.

There was also in the back of the courtroom, a small group of men who were later identified as being inmates, who were either out on bond, who were released from prison, who were known to Mayberry.

And after he would direct something to the judge, he would turn around in laughing manner toward them, they would again applaud and would stamp their feet and so it’s to create such a disturbance --

Justice Thurgood Marshall: There were penitentiary inmates in the back of the courtroom and the judge couldn’t put them out?

Ms Carol Mary Los: Oh, no Your Honor.

They were removed from the courtroom.

But what -- I am saying is that the purpose of his remarks to the judge were not just to excoriate the judge, the purpose was to create sufficient ruckus so that there would be delay in the trial.

Unknown Speaker: Was there -- as much as it this is within authority of trial, was there any effort in the legislature to get legislation to reveal to this kind of business?

Ms Carol Mary Los: I am not aware of any I know that of course that none in the interim period has passed.

I cannot say with any certainty that there has been legislation proposed.

As I said, binding and gagging didn’t do any good.

And at first the judge was leery in the sense of saying anything to Mayberry about his contumacious conduct in front of the jury.

I think, very honestly that he felt that he didn’t want to prejudice Mayberry in front of the jury presiding him for contempt and again, Mayberry was acting as his own counsel.

So, for the judge to have the jury leave the courtroom and cite him specifically might not have served the purpose or might only -- the end result had Mayberry so inflamed as to continue this course of conduct probably even in a more serious thing and eventually cause the trial to stop.

Now, we almost concede that we are concerned about the 11 to 22 years sentence.

It does in view of previous contempts, that have come before this Court, seem rather severe.

We maintain however, that the actions of Mayberry here were so outrageous and so outlandish as to far exceed anything that has come before this Court.

Justice Byron R. White: Now, how are we really supposed to if these facts are relevant to that judgment, how are we supposed to get them before us when they aren’t in the record?

Ms Carol Mary Los: Yes.

That is, I think, the major difficulty before this Court doing anything to lessen the sentence.

I think the only course that can be entertained at this point if you feel that 11 to 22 years is cruel and unusual punishments --

Justice Byron R. White: The habeas corpus?

Ms Carol Mary Los: -- is to remand on a habeas corpus, Your Honor.

To hold a hearing, to determine all of the relevant facts that must come before this Court can determine that 11 to 22 years was unjustified.

Justice Byron R. White: I think he has a state post conviction, Miss Los.

Ms Carol Mary Los: Yes, we do Your Honor.

Justice Byron R. White: I suppose it would have to go there to the federal habeas --

Ms Carol Mary Los: Yes, that’s true.

We do have a vehicle to deal with this --

Justice Byron R. White: What do you suppose the purpose of giving these contempt sentences was?

Certainly, it wasn’t in control of the trial, was it?

Ms Carol Mary Los: No, because certainly they were given after the trial.

I think the purpose --

Justice Byron R. White: Was it to deter Mayberry?

Whenever doing anything like this again, I don’t suppose?

Ms Carol Mary Los: Well, I think that might have been one of the ends.

I think, secondly though, because the case did have a great deal of notoriety.

Because of the fact that a lot of inmates penitentiary or prisoners who are out on bail or who rather bond or had not yet come for trial were watching this closely.

There’s evidence by a great number of people who came into the courtroom and then a number that had caused a commotion along with Mayberry.

I think the purpose was to show that a man cannot do this and get away with it.

And that’s the fact that there was so much notoriety, I'm sure the trial judge realized that the prisoners and those come into trial would watch very closely to see how Mayberry was dealt with.

Justice Byron R. White: Why shouldn’t, Miss Los or do you think it’s at least bit of sensible to suggest that if a judge thinks that an act in the courtroom is so serous that it justifies the two-year sentence that he must not try it himself, that he is going to wait until after trial?

Ms Carol Mary Los: I think the question here ought to be, “What should he have done in 1966?”

I think in 1966 under due process standards as the Court, the Pennsylvania Court interpreted them and the Pennsylvania Supreme Court interpreted them relying on In re Oliver, the trial judge had the absolute right to sentence the petitioner as the hearing judge.

Justice Byron R. White: But would you know that whenever -- isn’t it the rule that when it appears that a judge is so personally involved and so insulted by contemptuous act that he shouldn’t be the one to try the contempt?

Ms Carol Mary Los: Certainly, if the remarks are directed personally to him.

It’s our belief --

Justice Byron R. White: That’s clear.

Somebody's statements were pretty personal --

Ms Carol Mary Los: But yes, Your Honor.

But the purpose of them I think, and I think the trial judge was able to see this.

It was directed towards stopping the trial.

Justice Byron R. White: But when a judge reacts so strongly to having a personal remark directed at them that he gives a man two years for it?

Ms Carol Mary Los: But that’s an assumption we’re making Your Honor.

I think he felt that the administration of justice and that the proper handling of this trial was insulted, so to speak.

Justice William O. Douglas: Does Pennsylvania have contempts through the Court apparent in the courtroom and that required him before another judge.

Do you have this in Pennsylvania --

Ms Carol Mary Los: No, Your Honor.

The statute is set forth for you.

This is the --

Justice William O. Douglas: This is another federal rule to make it --

Ms Carol Mary Los: Yes, Your Honor.

We have no distinction of that sort.

No, Your Honor.

We don’t.

But my only answer to that really is and I honestly feel that the judge himself did not feel these were personal attacks upon his own character.

I think he understood them in the context of what Mayberry was attempting to do.

Justice William O. Douglas: Let me ask.

Let’s assume that the trial was held today on the same events in Pennsylvania, let’s assume the same trial took place and the same events happened today?

Ms Carol Mary Los: Then I think, we have a completely different ball game because we are then bound by ruling of this Court that if the sentence can exceed six months, certainly, --

Justice William O. Douglas: Well, what's the reason -- what’s the reason for saying that the judge here -- if he wants to give more than six months, he has to have the jury.

What's the reason for that?

Ms Carol Mary Los: I think the severity of the sentence Your Honor.

I believe, it’s the feeling of this Court --

Justice William O. Douglas: Well, I know but what's the reason for it?

What's the reason for having the jury at all?

Ms Carol Mary Los: I think because there, a man’s right to be tried by his on peers where a serious sentence is involved and a serious crime is involved overrides the administration of justice.

In other words, the (Inaudible) to the Court which should be dealt with by the judge himself, so --

Justice William J. Brennan: So longs the -- oh, excuse me.

Ms Carol Mary Los: Yes, Your Honor.

Justice William J. Brennan: I don’t mean to interrupt.

Ms Carol Mary Los: I was just going to say, we will not deny that this is a serious a offense.

But we must talk in terms of 1966 standards and not 1970 if I may --

Justice William J. Brennan: I’m not talking about a jury, I’m talking about a judge?

Ms Carol Mary Los: I don’t feel as if another judge would have to hear this case because it is my firm belief, that while certainly the phrase “a stumbling old dog” were directed toward the judge or “I'm not going to argue with fools”, meaning the judge.

I think the purpose was clearly understood.

Justice William J. Brennan: Do you find any basis and you think that you discovered the case is saying that or a judge chooses to not to exercise his contempt power on episodes of the courtroom are heard or to postpone the holding after the trial in what he is dealing with in the absence of the state’s statutes, it is serious offense?

Ms Carol Mary Los: No, Your Honor.

And the reason why I feel here that this was not just one continuing offense.

These were separate events and correctly separate citation.

Justice William J. Brennan: That’s not the way I’m conceding.

Ms Carol Mary Los: Yes.

Justice William J. Brennan: But they were not dealt with at the time by the judge during the course of trial, perhaps a very good reason.

Ms Carol Mary Los: First of all, the sentencing was not given out until the end of the trial.

The petitioner and his co-defendants were warned repeatedly by the trial judge and in fact at one point, judge called counsel before him and expressly asked counsel to go through the possibilities of contempt and the actions of their clients because he felt that they should be well aware that their actions we contemptuous.

Now, the fact that he waited until the end of trial, I think, it was done solely to protect the petitioner and his co-defendant.

So that the petitioner wouldn’t become first of all, so inflamed and so enraged that he would stop the trial by means of letting the jury know and again, getting so out of hand that the trial couldn’t continue.

I think that since his purpose here was to protect the petitioner and certainly to protect the common laws right to see the case through to its just ends, the petitioner cannot, now say, well the judge couldn’t do at the end of trial what he could do in the middle of trial.

Justice Thurgood Marshall: This law is assuming that some people would consider these violent verbal attacks as assaults.

If he were charged with that he would have gotten a jury, wouldn’t he?

Ms Carol Mary Los: If he had requested a jury.

Yes, Your Honor that is true.

Justice Thurgood Marshall: 20 -- it is --

Ms Carol Mary Los: 11 --

Justice Thurgood Marshall: Is Mr. Reitz corrected 20 years as sentenced for second degree murder in Pennsylvania?

Ms Carol Mary Los: Yes.

10 to 20 years, Your Honor.

Yes, for second degree.

Justice Thurgood Marshall: And this man has 22?

Ms Carol Mary Los: Your Honor, we’re talking here about an (Inaudible) to public justice and not to one individual.

We’re talking about a man disrupting the orderly administration of justice, affronting the dignity and honor of the Court.

Justice Thurgood Marshall: We’re also talking about the judge trying him after the man called him “a stumbling old dog” or something.

Ms Carol Mary Los: That is true but I fully believe that the judge understood, Mayberry’s purpose in doing this was not directed toward him as such.

Only because Mayberry’s chief purpose was to stop the trial.

Justice Thurgood Marshall: How in the world could he know that and how in the world do you know that he knew that?

Ms Carol Mary Los: I believe he knew that, Your Honor.

Justice Thurgood Marshall: Do you believe it, I agree with that.

Ms Carol Mary Los: For these reasons.

First of all, as I say Mayberry had threatened several times and he boasted that the trial would never reach its completion.

Secondly, he --

Justice Thurgood Marshall: That’s not in this record, right?

Ms Carol Mary Los: Because there -- it was not part of testimony, Your Honor.

Justice Thurgood Marshall: We deal with what we have before us, don’t we?

Ms Carol Mary Los: Right.

And that is why I'm asking you that you are --

Justice Thurgood Marshall: I'm not in the moment not agreeing that you tell the truth.

I mean, but the point is we got a record here.

Ms Carol Mary Los: And that’s why, I respectfully ask, that if you feel this cruel and unusual punishment that you remand it for hearing, so that all the facts can be put before the Court because as the record stands, it’s a very cold record and as exerted, it appears as if Mayberry might have been justified for some of the comments that he made.

I think that it so distorts what actually happened to trial that this Court cannot make a determination as to whether or not that was actually cruel and unusual punishment without a complete hearing on what actually occurred.

Chief Justice Warren E. Burger: When you talk about a complete hearing, are you suggesting that this be a complete hearing in a due process sense of a trial with the jury before it could --

Ms Carol Mary Los: No, I'm not Your Honor.

Because I still believe that 1966 standards must apply and as such in 1966, Pennsylvania law rely -- the interpretations by the State of Pennsylvania, relying upon In re Oliver were that a judge could sentence summarily without due process safeguards that are now essential.

For example, in the serious crime and we will concede that 11 to 22 years as a serious offense.

Justice Hugo L. Black: Did you have any idea that this man had been indicted by a jury or glory of time given him a close rough trial like anybody else gets charged with crime and there wouldn’t have been any difficulty of getting him convicted?

Ms Carol Mary Los: Absolutely none, Your Honor.

Justice Hugo L. Black: In a fair and impartial trial?

Ms Carol Mary Los: Absolutely no difficulty.

I think, absolutely he weren’t been convicted.

Justice Hugo L. Black: Without any -- would you have any chance then to get an unbiased judge and an unbiased jury?

Ms Carol Mary Los: That may very well be true, Your Honor.

But I don’t think that officiates the proceeding that we had here.

I think the judge did have an absolute right to sentence as he did summarily.

Justice Hugo L. Black: But what if they have sentenced him to life?

Ms Carol Mary Los: I think he had the right under the acts in cruel and unusual punishment, absent that argument, I think he absolutely had the right to do that.

Justice Hugo L. Black: Well, I agree with the seriousness of the crime fully.

I have no doubt about that, I don’t worry about the punishment for 22 years, trying to disturb and destroy possibility of a court procedure.

The only thing I'm worried about it in the case is that the judge tried him while he’s having that puts a man charged with the serious crime ought to have.

That is a trial of an impartial judge and according to due process?

Ms Carol Mary Los: If he was entitled to a trial though, Your Honor.

I disagree with you that he was.

I think that the judge had the right because the administration of justice was affronted.

Justice Hugo L. Black: That’s right.

Ms Carol Mary Los: I feel that in 1966, --

Justice Hugo L. Black: Well, that’s going back to the saying, well, this is retroactive.

Ms Carol Mary Los: Yes, Your Honor and I think that we must judge this in terms --

Justice Hugo L. Black: You wouldn’t think so now, would you?

Ms Carol Mary Los: Oh, no.

Certainly not now, Your Honor.

Chief Justice Warren E. Burger: But if we remand as you intimated might be one solution, is the case going to be tried under 1966 standards or 1971 standards?

Ms Carol Mary Los: I think it’s only fair that if we are going to judge what a trial judge did in 1966 under their standards, that he do it in terms that the hearing be done in terms of what was the law in Pennsylvania at that time.

Thank you.

Chief Justice Warren E. Burger: Thank you, Miss Los.

I think your time is consumed Professor Reitz, unless you have something to consider with high urgency and we’ll give you a little bit of time for that.

Rebuttal of Curtis R. Reitz

Mr. Curtis R. Reitz: I want to make just one point, Your Honor and that is on the issue of retroactivity that has been discussed.

Miss Los has testified at some length, the matter is not in the record which, of course, her testimony could not even be part of the trial on a remand.

It is to me a shocking thing to hear in any Court, 1970 a suggestion that even in 1966.

No matter what one views the law in 1966 to be that it would raise any question that a man is entitled to a trial on a punishment that could produce 22 years of sentence.

Chief Justice Warren E. Burger: Professor Reitz, you acted at our request and by our appointment in this case and on behalf of the Court, thank you, for your assistance to the client and to the Court.

Mr. Curtis R. Reitz: Thank you, Your Honor.

Featured:

In Re Spencer - Oral Argument

Thu, 23 Aug 2012 18:15:04 +0000

Case:

In Re Spencer

Media File:

513_19700428-argument.mp3

Related Transcript:

513_19700428-argument

Transcript:

Argument of Melvin L. Wulf

Chief Justice Warren E. Burger: 513, we'll hear arguments in the matter of Dan A. Spencer.

Now as to number 4, Younger against Harris, we'll ask counsel to standby for a while and perhaps at the half break when we're certain that we are going to have this case completed with no emergencies then counsel could be excused at 2:30 if no emergencies arise.

Mr. Wulf, you may proceed whenever you're ready.

Mr. Melvin L. Wulf: Mr. Chief Justice and may it please the Court.

This contempt -- conviction of an attorney is here on appeal from the Louisiana Supreme Court.

There -- jurisdiction was postponed pending argument on the merits and there are some jurisdictional problems.

Before discussing those, I would like to describe the facts of the conviction itself because of the facts of the conviction also involved some of the jurisdictional problems.

The appellant in this case, Mr. Spencer is an attorney, member of the Louisiana Bar who appeared before a Judge Dixon, a District Court judge in the Louisiana courts representing one, Mr. Hopkins in a hearing in a divorce case.

It was an uncontested divorce suit and the purpose of the hearing was, according to Louisiana practice, to confirm default in Mr. Hopkins favor.

After testimony was taken by -- was given by Mr. Hopkins and witness on his behalf, Judge Dixon denied the divorce because the testimony didn't show abandonment by the spouse but showed only that Mr. Hopkins and Mrs. Hopkins have had argument and that they decided that one of them should leave and Mrs. Hopkins was the one to leave.

The following day after the denial of the divorce, the appellant filed a motion for a new trial on behalf of his client Mr. Hopkins on the ground that the decision by Judge Dixon was erroneous in fact and in law.

Simultaneously with filing the motion for a new trial, he also filed a motion to recuse Judge Dixon.

The motion to recuse which he filed was set out in the back of our brief.

Chief Justice Warren E. Burger: Did that motion contain any new matter that he hadn't known the day before or the week before?

Mr. Melvin L. Wulf: The record doesn't show, Your Honor.

Chief Justice Warren E. Burger: Well, is it reasonable, can any inferences be drawn as to whether this was some discovery overnight or whether it was a new idea after he learned that he had received an adverse decision?

Mr. Melvin L. Wulf: Oh, I don't know what one -- I believe that one cannot draw inferences from the record because there isn't anything in the record at all to suggest when this impeachment proceeding was initiated, if it was initiated and was initiated and what the -- what any of the facts surrounding that proceeding were.

What if any of the facts are on that petition were but the --

Justice Potter Stewart: But we don't even know whether this is true or false, is that correct?

Mr. Melvin L. Wulf: We don't know --

Justice Potter Stewart: The factual statement?

Mr. Melvin L. Wulf: We don't know it's true or false, Your Honor.

One of the reasons we don't know whether it's true or false is that the judge who sat on the contempt proceeding itself the year later wouldn't allow any such testimony to be entered.

Now the record is ambiguous as to whether any such testimony was attempted to be put in by the appellant but it becomes perfectly clear from the statement of Judge Williams himself that he was the judge who sat on the contempt hearing that -- and this is contained in the record of the case and also in the back of the jurisdictional statement.

He, Judge Williams in opposing Mr. Spencer's application for writs of certiorari to Louisiana Supreme Court said in and I quote, well, I'm sorry I don't quote, but in his application with -- in his opposition to the application which is in the record, Judge Williams said himself that he refused to admit any such evidence concerning the truth of the assertion in the motion to recuse.

Justice Potter Stewart: And we don't know if Mr. Hopkins was a lawyer or what he was so far as the record goes?

Mr. Melvin L. Wulf: We don't know, I don't -- I think Mr. Hopkins was not a lawyer.

Justice Potter Stewart: And we -- do we know and we don't know anything about Mr. Charles Anderson, III?

Mr. Melvin L. Wulf: No sir, less in about him than about that of Mr. Hopkins.

Justice Potter Stewart: And do we know anything -- suppose we could take judicial notice, although I certainly don't have any actual notice of how in New Orleans you get a judge remove from office as being unfit therefore or for any other reason.

We don't know if these are members of the state legislature, if they are what -- we don't know anything about this case, do we?

Mr. Melvin L. Wulf: Well, we do know that there was then a procedure under the Louisiana Constitution, Article 9 of the Constitution which provided that upon the petition of any 25 citizens of the state in which they alleged that a judge was guilty of one of a fairly long list of offenses ranging from high crimes and misdemeanors to habitual drunkenness and including incompetency, corruption, favoritism, extortion, oppression in office, and gross misconduct that upon a filing of a petition with the district attorney by 25 citizens so alleging that the district attorney had to initiate impeachment proceedings.

Justice Potter Stewart: Where, before what form?

Mr. Melvin L. Wulf: The Supreme Court of Louisiana, Your Honor.

However that statute which was in effect at the time -- this motion to recuse was filed was repealed not long afterwards.

Unknown Speaker: Do we know Mr. Wulf how judge -- how it came about that Judge Dixon ceased to hold office as a judge?

Mr. Melvin L. Wulf: He was elevated to the -- to an appellate court in Louisiana not long after this trial also, Your Honor.

Chief Justice Warren E. Burger: Are you -- you're going to address yourself to whether you are legally here at all on the question whether there is an appeal here, are you?

Mr. Melvin L. Wulf: Yes, sir, I am and if I may just finish the recital of facts I --

Justice Potter Stewart: I'm sorry to have interrupted, I shall --

Mr. Melvin L. Wulf: The motion to recuse contained the following paragraphs.

Paragraph 4 and it's set out at page 8 of the appendix, the separate appendix.

It says, “The plaintiff herein, Louis B. Hopkins, Jr. and his chief witness in this case, Mr. Charles Anderson, III are presently engaged in the process of attempting to have Judge Dixon removed from office as being unfit therefore by virtue of corruption, favoritism, oppression and misfeasance in office.”

And the next paragraph said that because of the -- this activity by Mr. Hopkins that the Judge is therefore interested in the cause and bias, prejudice and harbors personal animosity towards the plaintiff.

In the motion to recuse was filed pursuant to a Louisiana statute which permits motions to recuse on allegations that filed.

Chief Justice Warren E. Burger: At some point, will you develop what could be the nexus or what is the nexus as you see it between the allegations of corruption and the allegations of bias or perhaps indicate?

Mr. Melvin L. Wulf: Well, --

Chief Justice Warren E. Burger: If there is none, I'm puzzled by that.

Mr. Melvin L. Wulf: Well, the nexus is that judge inferentially knowing about the motion to impeach about the proceeding to impeach initiated by the plaintiff in the case would necessarily be biased against him on the fair assumption that it certainly isn't something that we're going endear the plaintiff to the judge.

That -- and that was the essence of the claim of bias and personal animosity, a fair implication, I would think.

This motion to recuse having been filed the judge several days later issued an order for a rule to show cause why appellant, Mr. Spencer what not be held in contempt.

And the order is set out in page 10 of the appendix, it's very brief and it says using the language of the Louisiana contempt statute that he did file a pleading which contains scandalous, insulting and abusive language and a relevant criticism of the judge of said court, which pleading is attached hereto and made a part hereof in which language particularly in paragraph 4 which is the paragraph I read relating to the impeachment proceedings thereof, impairs the dignity of the court and the respect for his authority contrary to the law of the State of Louisiana.

At that point the appellant here initiated collateral proceedings, United States District Court of Louisiana to enjoin the contempt proceedings.

I don't think that's directly relevant now.

That was an attack on the sta --

Justice Byron R. White: Did you -- what was the basis though of your client, was it due process of the First Amendment or what?

Mr. Melvin L. Wulf: In the collateral actions, Your Honor?

That was an 1983 civil rights action based partially on Dombrowski v. Pfister to enjoin the contempt proceeding against the --

Justice Byron R. White: As depriving you of what federal right?

Mr. Melvin L. Wulf: I'm afraid I can't recall, the free speech, yes, precisely.

Justice Byron R. White: And that was decided against you?

Mr. Melvin L. Wulf: He alleged a free -- he alleged that the statute -- Louisiana contempt statute violated the First Amendment on its face.

Justice Byron R. White: And the --

Mr. Melvin L. Wulf: That was --

Justice Byron R. White: That was decided against you?

Mr. Melvin L. Wulf: That was decided against appellant, yes.

Justice Byron R. White: Under what, a summary judgment or just?

Mr. Melvin L. Wulf: On a summary judgment, yes.

There was a -- there was initially a three-judge court and then they -- I think --

Justice Byron R. White: And he didn't appeal that?

Mr. Melvin L. Wulf: He filed those on appeal and then withdrew it afterwards, yes.

Another part of that proceeding was that I think it's fair to say out of that proceeding, that Judge Dixon disqualified himself from sitting on the contempt hearing itself and another judge was assigned to actually hear the --

Justice Byron R. White: Is that -- are the issues in that federal court action being raised in this action too?

Mr. Melvin L. Wulf: Well, the only issue that was disposed of in the federal court action was the constitutionality of the contempt statute on its face although that was raised here initially in the jurisdictional statement from our supplemental brief you'll see that we're confessing that that ought not be here because it was not properly --

Justice Byron R. White: Yes.

And the -- when was it -- when was the -- when were your other issues ever raised in the state court?

Mr. Melvin L. Wulf: Well, the other issues by which you mean the whole three of the general issues, the three --

Justice Byron R. White: On the -- the other issues you want litigate it here, you want to decide here?

Mr. Melvin L. Wulf: They were raised -- the invalidity of the conviction was raised in the motion to recuse in the course of the hearing before Judge Williams and in the appellant's application for writs of certiorari to Louisiana Supreme Court.

Justice Byron R. White: Well, if you didn't raise it in the trial court however, you might be at some trouble even if you raised it in the petition for cert in the state court, wouldn't you?

Mr. Melvin L. Wulf: Well, but it was raised in the --

Justice Byron R. White: Where?

Where was that?

It must be on the record here somewhere.

Mr. Melvin L. Wulf: It is on the record.

That was most explicitly raised in the course of the oral argument before Judge Williams at page -- well, its raised in a couple of places.

At page 18 (Voice Overlap) in the appendix in the first full paragraph, the first words are Holt versus Virginia, that's Mr. Spencer engaging in colloquy with Judge Williams.

And at the bottom of that paragraph, what he -- quote some of the language from the Holt case and then at the conclusion, it says under these circumstances, the decision decided by 8 judges, the one that said, the Supreme Court, meaning this Court found that these constitutionally protected, expressions of free speech that I would submit that the same thing is true here.

The other issue that he persistently raised was the issue of his right to --

Unknown Speaker: Excuse me Mr. -- do you mean, the -- this addresses itself to 2 (22) (3) as applied, is that it?

Mr. Melvin L. Wulf: Yes, the reference to Holt, yes, yes.

Unknown Speaker: And this is --

Mr. Melvin L. Wulf: Yes, Your Honor.

Unknown Speaker: This is what -- you say this addresses itself to the constitutionality of the Section we have before us, 2 (22) (3), isn't that it, as applied?

Mr. Melvin L. Wulf: Well, it addressed its -- it addressed itself to the charge against -- it addressed himself to the charge against --

Unknown Speaker: Well, I know but what we're dealing with here is the jurisdiction -- our jurisdiction here this, aren't we?

Mr. Melvin L. Wulf: We are and I have in our supplemental brief conceded that --

Unknown Speaker: What was that?

Mr. Melvin L. Wulf: Conceded that --

Unknown Speaker: That on its face, so you have no -- you can't --

Mr. Melvin L. Wulf: I have -- we have abandoned the attack on the contempt statute on its face because in my opinion it was impossible to assert that there -- that it had been joined in issue properly --

Unknown Speaker: Can I Mr. Wulf, then I come back to my question, then you go on as I read your supplemental brief to say that the -- you do the constitutionality of 2 (22) (3) based upon the First Amendment as applied, is that right?

Is that what you're saying there?

Mr. Melvin L. Wulf: Well, what I'm say -- what I'm saying now here is that what we are attacking is not the statute either on its face but certainly not on its face, what we're attacking is the validity of the conviction itself.

I have had --

Unknown Speaker: I know but you're here by appeal.

Mr. Melvin L. Wulf: I am here by appeal.

I am on -- in a supplemental brief I confess that you -- we are here incorrectly by appeal.

And in the supplemental brief I have asked the -- pursuant to Section 20 103 --

Unknown Speaker: And you got it as a cert?

Mr. Melvin L. Wulf: -- that we -- that the case to be treated as a petition for certiorari which in fact was one of the alternative prayers in the jurisdictional statement and that certiorari would be granted and that the surviving issues apart from the constitutionality of the statute on its face, --

Unknown Speaker: Oh, I know, what are these -- alright, what are the cert issues now that you want us --

Mr. Melvin L. Wulf: The cert issue -- the central cert issue of course is the validity --

Chief Justice Warren E. Burger: But the point -- excuse me, before you get to the cert issue let me put this question to you.

If what is now disposed in your supplemental brief had been included in your jurisdictional statement, is it possible that the -- it would've been a dismissal out of hand of the whole proceeding?

Mr. Melvin L. Wulf: I wouldn't make that prediction Your Honor.

If I had --

Chief Justice Warren E. Burger: Well, why not?

If you admit now that you had no basis for being here on appeal.

Mr. Melvin L. Wulf: I have no basis for being here on appeal I think that we have very excellent basis for being here by way of certiorari and if I have --

Chief Justice Warren E. Burger: Well, but you -- you hadn't filed a petition for certiorari, you had filed an appeal, isn't that correct?

Mr. Melvin L. Wulf: But if -- yes, the appeal, those appeal was filed from the decision of the Louisiana Supreme Court and then a jurisdictional statement was filed here.

The jurisdictional statement in its conclusion at page 13 said that the questions presented by appeals, substantial, etcetera, then alternatively in the event that this appeal shall either reject the appellant, prays that the papers herein be treated as a petition for a writ of certiorari.

If I have joined that that docket -- I can't say, I would've made the petition for certiorari in the first place and necessarily we are now here asking that it be treated as a petition for certiorari.

Unknown Speaker: Now, where else Mr. Wulf did you raise this in any federal constitutional matters in the trial court other than the page 18?

Mr. Melvin L. Wulf: I think that was the most explicit, if I may just look through here a second.

Unknown Speaker: And while you're about it Mr. Wulf, will you then point out what the issues on cert are that you thinking now before us.

Mr. Melvin L. Wulf: Yes, sir.

Unknown Speaker: I gather this is First Amendment issues, isn't it?

You rely on --

Mr. Melvin L. Wulf: Well, it's essentially a Holt versus Virginia issue --

Unknown Speaker: Yes, I mean --

Mr. Melvin L. Wulf: -- which is a due process First Amendment and the void of evidence issue as I read that case.

Justice Byron R. White: We know, do you -- anything that Holt against Virginia dealt with is raised by --

Unknown Speaker: Is was raised by that comment?

Mr. Melvin L. Wulf: Yes, sir.

Justice Byron R. White: You hope?

Mr. Melvin L. Wulf: Yes, I hope.

Yes, sir.

Unknown Speaker: Well, what other cert issues are there?

Mr. Melvin L. Wulf: Well, certainly the central Holt issue is raised here, I mean by referring explicitly to Holt in the course of the argument at the trial court and by repeating those assertions in his applications for writs to the Louisiana Supreme Court, he certainly raised -- he certainly properly raised and preserved the Holt issue.

He raised it I think in a way that --

Unknown Speaker: But they denied certiorari.

We don't know whether they -- didn't -- they may have denied it because you haven't raised anything in the lower court.

Mr. Melvin L. Wulf: Well, they not only denied certiorari Your Honor but if you -- they also have said there is no error of law in the ruling --

Unknown Speaker: And what's that mean in Louisiana, I used to know I don't remember now, it has something to do with merits, doesn't it?

Mr. Melvin L. Wulf: I haven't frankly examined that precise question in terms of what it means Louisiana law.

I would think that its plain meaning is that there is no error of law in the ruling --

Unknown Speaker: Well, I think it has some technical significant system, the substantive quasi, but I don't know.

Which would be for you of Virginia?

Mr. Melvin L. Wulf: Well, perhaps, I don't think --

Unknown Speaker: (Voice Overlap) the determination on the merits, you see.

Mr. Melvin L. Wulf: Well, I don't think that this position by Louisiana Supreme Court is particularly -- is directly relevant to whether we properly raised the certiorari issues here as long as we properly raised them in the applications to the Supreme Court of Louisiana for certiorari, the fact that they declined to exercise jurisdiction doesn't denigrate the fact that we properly raised them in the first place.

Unknown Speaker: I know but if there were a rule in Louisiana that you must raise the issues in the trial court to have them considered in the appellate court then you haven't raised the issue as soon as you can in the state court.

Mr. Melvin L. Wulf: Well, we raised the Holt -- our assertion is that we raised the Holt issue in the trial court.

Unknown Speaker: Well, the other side of it anyway, what I'm suggesting Mr. Wulf is something about this Louisiana practice that makes that form a disposition on the merits not merely a denial of review where cert would be here but when I used that form for disposition of a petition for a writ as I recall that constitutes also a disposition on the merit that no merit in the points raised.

Mr. Melvin L. Wulf: Well, I --

Unknown Speaker: Assuming they were raised.

Mr. Melvin L. Wulf: Yes, I didn't look into that.

If the Court wants a supplementary brief --

Unknown Speaker: Well, perhaps your adversary put a light on that.

Mr. Melvin L. Wulf: But, in any case I -- if it were a disposition on the merits, obviously the case would be strong.

I don't think frankly it's any less weak if it's a discretionary denial because the question isn't whether or not the Louisiana Supreme Court decided it.

The question is whether it was presented to them, entertained and rejected either just on -- by denial of certiorari or on the merits.

Unknown Speaker: I know I'm taking it too much of your time and apologize but what other cert issues are there that you think are before us?

Mr. Melvin L. Wulf: These -- the three cert issues which are before us all revolved around the Holt issue and they are that the conviction violates the First Amendment right of courtroom advocacy by an attorney.

The whole Holt versus Virginia issue itself that denial of due process because of the Sixth Amendment right to counsel and for counsel to plead and the no evidence rule.

And frankly all of this, Holt is the centerpiece of these three questions because I think Holt can be looked upon as something of a free speech case.

We looked upon as the right of free speech advocacy in the courtroom as Mr. Justices Douglas and Black once referred to in Fisher v. Pace in a dissenting opinion there.

So it has been treated or considered to be a First Amendment right.

The second issue is the square Holt versus Virginia issue vainly the right of a lawyer on behalf of his client to file relevant pleadings in order to try to secure a floor which is free of bias so that could be either a motion to recuse as in this case or a motion for a change of venue as was the case in Holt.

And the last issue is a no evidence issue along the line of Thompson v. Louisville which in fact was one of the grounds in the Holt case although it didn't precisely refer to Thompson v. Louisville in any of its progeny but the Court here did say in Holt that speaking of the convictions for contempt, they rest on nothing whatever except allegations made in motions for change of venue.

The -- each of those issues were raised below and are here properly having been raised and preserved below --

Justice Potter Stewart: Well, they're here now as you concede only if we grant petition for certiorari, am I correct --

Mr. Melvin L. Wulf: Yes, part of it.

Justice Potter Stewart: -- in your submission?

Mr. Melvin L. Wulf: And --

Justice Potter Stewart: This therefore is a -- I gather is of inadvertent misstatement in the -- in your opening brief to the effect that the jurisdictional statement was filed on August 1969 and probable jurisdiction was noted on February 2, 1970.

Mr. Melvin L. Wulf: Yes, that --

Justice Potter Stewart: That's a misstatement of facts.

Mr. Melvin L. Wulf: That is a misstatement which I corrected in the --

Justice Potter Stewart: We postponed jurisdiction.

Mr. Melvin L. Wulf: -- in the supplemental brief.

Justice Potter Stewart: And you now concede that there is no proper appeal here and that what you're presenting here is of now a petition for certiorari, that you --

Mr. Melvin L. Wulf: Yes, Your Honor.

Justice Potter Stewart: -- are asking us to grant?

Mr. Melvin L. Wulf: Yes, Your Honor.

And grant and deal on with the merits precisely as it would've dealt with the merits of the appeal if the appeal were properly here.

And I just might say that with respect to the application for certiorari that this Court has -- not infrequently considered issues of contempt on law -- visited on lawyers by the bench as a very important aspect both of its constitutional duty and as its supervisory duty over the conduct of litigation on the lower federal courts.

There have been several dozen contempt cases here in one form or another.

And I would suggest that that itself indicates the significance of these kinds of cases where lawyers are held to contempt by the bench and I think that the issue quite apart from that even if there had never been a case of this sort here before that quite apart form that it is an important question on its own merits and does implicate the independence of the bar and raise serious questions about the bar being free from the imposition of arbitrary sanctions by judges and members of the bench.

I would just like to concentrate for a moment on the -- on this case in its relationship to Holt versus Virginia.

I think that -- looked at in that light, it's a very easy and that it is controlled directly and entirely by Holt versus Virginia.

In Holt there are two -- two lawyers were held in contempt for filing a motion for change of venue in that case in which they charged that the judge there “is now in effect and or in fact acting as police officer, chief prosecution witness, adverse witness for the defense, grand jury, chief prosecutor and judge.”

And it also charged that the judge had intimidate and harass Attorney Holt at an earlier hearing on the contempt proceeding and the judge thereupon hearing this motion read in open court said, “I think the plea is contemptuous.”

And the Virginia Supreme Court held that the language in that motion violated the Virginia contempt statute which authorized summary punishment of a person who “misbehaves” in the presence of a court so as to obstruct justice or uses “vile, contemptuous or insulting language” which is language not unlike that contained in the Louisiana contempt statute.

Unknown Speaker: I don't have this quite clear Mr. Wulf.

Mr. Melvin L. Wulf: Yes.

Unknown Speaker: The language, I'm looking at page 8 of the motion on order for recusation, paragraph 4 refers to the client Hopkins as engaged in the process of attempting --

Mr. Melvin L. Wulf: Yes.

Unknown Speaker: -- and removed from office for “as being unfit therefore by virtue of corruption, favoritism, oppression and misfeasance in office.”

Mr. Melvin L. Wulf: Yes.

Unknown Speaker: Now, do I understand you that that's the exact language from the statute under which Hopkins was bringing his proceedings?

Mr. Melvin L. Wulf: Yes, except misfeasance is not included in the statute.

Unknown Speaker: I see, now --

Mr. Melvin L. Wulf: But corruption, favoritism and oppression is included in Article 9, Section 1 of the Louisiana Constitution.

Unknown Speaker: Now, it was his use of that language in the motion which was a basis for the discipline, wasn't it?

Mr. Melvin L. Wulf: The sole basis for the contempt was this paragraph of the motion to recuse which you must note is not the words of the appellant, the lawyer himself but as merely an assertion by Mr. Spencer that his client, Mr. Hopkins, had initiated a petition for removal of Judge Dixon and that it -- and that that petition was written in terms of corruption, favoritism, oppression and misfeasance.

They are not Mr. -- they're not the appellant's words.

They're not the words of the lawyer.

They're merely the assertion by the lawyer in a pleading that this was an activity in which his client was presently engaged and that therefore the judge would be prejudiced against it.

Justice Potter Stewart: Well, it surely do -- the lawyer drafted that, I suppose some typist actually did the writing on it but the lawyer drafted that language.

Mr. Melvin L. Wulf: Well, the lawyer drafted the --

Justice Potter Stewart: And they're his therefore they are his words and --

Mr. Melvin L. Wulf: The lawyer drafted --

Justice Potter Stewart: -- we don't know if they're true or false.

Mr. Melvin L. Wulf: The lawyer drafted the motion for recusation.

Justice Potter Stewart: Right.

Mr. Melvin L. Wulf: I don't know who drafted the petition to remove Judge Dixon.

Justice Potter Stewart: No, no we're talking now about paragraph 4 here.

Mr. Melvin L. Wulf: Oh, that's right.

Yes, of course, I assume that the lawyer drafted --

Justice Potter Stewart: Those are lawyer's words.

Mr. Melvin L. Wulf: -- drafted and signed this pleading.

There's no question about that.

But this isn't the characterization of the (Voice Overlap) by the lawyer.

This is merely, if you'll read it, it merely asserts that his client, Mr. Hopkins is engaging in the process of attempting to have Judge Dixon remove from office as being unfit therefore by virtue of corruption --

Justice John M. Harlan: Do you say this is just the equivalent if he said, my client has got a proceeding to remove the judge brought under Section so and so, the Louisiana statute?

Mr. Melvin L. Wulf: Precisely.

Indeed, in this language except for the use of misfeasance which made the --

Justice John M. Harlan: What sentence, what was the penalty that was imposed?

Mr. Melvin L. Wulf: 24 hours and a hundred dollars which was a statutory maximum for a first contempt offense by an attorney of Louisiana.

Unknown Speaker: Is it a basis for a disbarment and conviction?

Mr. Melvin L. Wulf: It could be, I'd fair, I don't know whether there are disbarment proceedings.

I suppose it could be.

Chief Justice Warren E. Burger: Do you suppose it would've been more a lawyerlike to have filed a document in the form that Mr. Justice Harlan just suggested --

Mr. Melvin L. Wulf: Well, that's where the other --

Chief Justice Warren E. Burger: -- where he is incorporating by reference and drawing the court's attention to it?

Mr. Melvin L. Wulf: Well, that's what the other side suggested too in one of their briefs in opposition to the jurisdictional statement but I don't know that any of us can really say that the way we draw papers as opposed the way some (Inaudible) draws papers is the proper way to do it.

Some lawyers prefer to be more precise.

I think that this is more precise than merely referring to the statutory language.

I might have preferred to statutory language, I don't know.

Justice John M. Harlan: More precise but also less polite.

Mr. Melvin L. Wulf: Well, it's certainly more distinct which may be a consideration when you're trying to show to a judge that he may be biased against your client.

You want to make this, I would think, I have -- myself have never filed such a motion so I can't claim any great experience in the area but I would think that if I were to file such motion that I would want to make as explicit and as possible what I believe the basis for the possible bias might be.

Chief Justice Warren E. Burger: Well, are you suggesting that the judge in question wasn't aware of the existence of this document?

Mr. Melvin L. Wulf: Well, the implication is that he was.

Chief Justice Warren E. Burger: Well, and therefore would it not have been at least more lawyerlike to have simply called attention to the existence, dependency of such a matter by reference to the document and let the document speak for itself.

Mr. Melvin L. Wulf: It may have been more prudent, I don't know whether it would've more lawyerlike, I don't know if those two terms are interchangeable.

Chief Justice Warren E. Burger: Well, you perhaps wouldn't be here if that course had been followed, is that likely in your judgment?

Mr. Melvin L. Wulf: I really can't say, I think that would depend on Judge Dixon temperament.

And I don't know anything about Judge Dixon.

Chief Justice Warren E. Burger: Well, it might have been done in the Supreme Court of Louisiana, too?

Mr. Melvin L. Wulf: It might depend on that also but I think primarily it would depend on the temperament of Judge Dixon.

As contempt proceedings, I think, it ought always depend on the temperament of the judge who issues the contempt and I think its precisely the over sensitive judge who is the danger to the independent court but I think it's this Court's duty to interpose itself between such insensitivity and the right of a lawyer aggressively to represent the interest of his client and I think that's what the appellant is doing here.

Unknown Speaker: Yes, Sixth Amendment issue.

Chief Justice Warren E. Burger: Thank you Mr. Wulf.

Mr. Dixon.

Argument of Neil Dixon

Mr. Neil Dixon: Mr. Chief Justice, may it please the Court.

We would address ourselves first the jurisdictional problem.

We submit that even treating the petition is a petition for certiorari does not cross the jurisdictional issues raised here.

We have briefed the issue that appeal was from the wrong court.

The same holdings, same cases creating these rules were also had held that certiorari is from the wrong court.

Jurisdiction here is based only on Section 12 (57) either for appeal or for certiorari requiring that it be from “the highest court of a state in which a decision could be had.

This Court has of many occasions in the cases cited on the jade of brief held that when a higher state court declines discretionary review --

Unknown Speaker: Well, will you tell me Mr. Dixon, what is the significance of there is no error of law in the ruling complained of.

It's my impression if that somehow deals with the merits, am I wrong?

Mr. Neil Dixon: Your Honor that is not -- that is not my intention of (Voice Overlap) --

Unknown Speaker: Well, then I'm quite wrong, you know better than I.

Mr. Neil Dixon: Oh, it is -- it may have been at one time, I do not know but that is not my opinion of Louisiana law, I would direct Your --

Unknown Speaker: Yes.

Mr. Neil Dixon: -- Honors attention to the case cited by us on page 8 of American Express Company versus Levee came from Louisiana in which that same situation existed as I recall.

Unknown Speaker: Yes.

Mr. Neil Dixon: As I recall also in Levee that question was asked in this Court.

I think the Court said we find no error of law so this --

Unknown Speaker: Yes.

Mr. Neil Dixon: -- this Court was wondering what that -- in that or somebody raised the issue.

Again, the American Express Company versus Levee, the case came out of the Second Circuit, Louisiana Court of Appeals.

Certiorari was applied to Louisiana Supreme Court certiorari denied, writs applied to here from the Louisiana circuit, Second Circuit Court of Appeal.

The appellee filed a motion to dismiss saying that it -- the writ should have come to the Louisiana Supreme Court, this Court said that the writs properly laid to the Court of Appeal, not the highest court declining it's a discretionary review.

In the instant case, the highest court -- involved is the First Judicial District Court of Caddo Parish, Louisiana.

No appeal was taken from that court.

No notice of appeal and conformity with the rules of this Court, it was filed within the first judicial District Court.

The record of the First Judicial District Court has never been filed in these proceedings except by respondent trial judge, Judge Williams, against support of his motion to dismiss.

Appellant has not complied either, we submit with the statute or with the rules of this Court or either certiorari or for appeal and for that reason we submit that this case is not properly before this Court on any issue.

Unknown Speaker: Well, how about the question of – let's assume that the writ was issued to the right court, do you have any object -- other objections towards jurisdiction?

Mr. Neil Dixon: The record was not filed, Your Honor.

The record in this case was filed by appellee so that this Court could pass on appellee or respondent (Inaudible) motion to dismiss.

Record has never been filed here by appellant in conformity with the rules of this Court.

Unknown Speaker: Because they just filed a record before the Supreme Court of --

Mr. Neil Dixon: Of the State of Louisiana.

Unknown Speaker: Namely just their petition for a cert?

Mr. Neil Dixon: There were other attachments to that petition.

The Supreme Court of Louisiana has its own rules as to what goes in a petition for certiorari but it does not include everything, it does not include the whole record.

It does not include what is printed in the appendix now.

This appendix would not exist but for the filing of appellee.

Unknown Speaker: Would you think the questions were adequately raised in the trial court, these questions that contained in the petition for certiorari --

Mr. Neil Dixon: No sir.

Unknown Speaker: -- or the statement of jurisdiction?

Mr. Neil Dixon: I do not say or adequately raise under the standards of this Court.

In fairness to appellant, there was another place other than pointed out in which an issue was raised and we refer to you on page 13 of the appendix.

Justice Hugo L. Black: Page what?

Mr. Neil Dixon: Page 13 Your Honor.

In Article 4 of his response to the rule, you said, in further defense of the rule, respondent place the truth of all the charges against Judge Dixon on the motion to recuse.

The hearing above describe expressions by respondent are constitutionality protected exercise of free speech.

That's the only other point than those pointed out by appellant that any constitutional issue was raised and I do not believe that they have been adequately raised below.

No, sir.

We would proceed then assuming that this Court had jurisdiction, first I would like to mention the statement of the case, appellant claimed in his first jurisdictional statement that he was denied the right to introduce testimony concerning the proof, the charge -- the truth of the charges made against Judge Dixon.

We refer the court to appendix, page 22.

We have a full transcript of the hearing on contempt.

Appellant was not denied the right to introduce any covered evidence other than evidence of testimony of the co-judges of Judge Dixon in an attempt to inquire into the motive of Judge Dixon for filing the contempt.

Appellant was asked by Judge Williams, “Have you anything else to offer?”

Appellant said, “No.”

At no time has appellant attempted to introduce any evidence.

At no time has he been denied a constitutional right.

Justice Thurgood Marshall: Well, Mr. Dixon on this constitutional right, would you think it would be within due process to establish a rule that where a -- you and I have a dispute as to facts of law that I should the arbiter as to which one of us is right?

Mr. Neil Dixon: Your Honor, I think you must be the arbiter of which one of us is right.

Justice Thurgood Marshall: No, no.

Do you take that on the question of facts?

The dispute is not between two people.

It's between you and me.

And I decide who is right.

Well, let's put it on page 14 of the record, The Court: “Mr. Spencer, are you representing yourself?”

Mr. Spencer: “Yes, I am.”

The Court: “This shall we say will be treating yourself in this court?”

Now who was the umpire there?

Mr. Neil Dixon: Your Honor, at this stage of the proceeding, Judge Williams is trying to contempt.

Judge Dixon is not.

Justice Thurgood Marshall: What do you mean by between you and me?

Mr. Neil Dixon: This is ---

Justice Thurgood Marshall: That is the actual (Voice Overlap) --

Mr. Neil Dixon: -- the status of every contempt hearing that has ever been held, every direct contempt hearing that has ever been held in the history of direct contempt, it is a question between the court and the counsel or the court and the party.

Justice Potter Stewart: But this was a different judge?

Justice Thurgood Marshall: This is a different judge.

Mr. Neil Dixon: This is a different judge.

Justice Thurgood Marshall: Well, how can you say it's between you and me?

Mr. Neil Dixon: Because if contempt is always between the court and counsel or the court and the contemptor.

When the judge says it is between you, he means the contemptor and me, he means the court.

Justice Thurgood Marshall: Which court?

Mr. Neil Dixon: He does not mean R. B. Williams, Judge, he means the First Judicial District Court, a court of the State of Louisiana.

Justice Thurgood Marshall: Well, he is not the District Court.

He's one judge of it.

I don't think this language is significant.

It will be between you and me.

Mr. Neil Dixon: Your Honor, every contempt cite -- every contempt conviction that this Court has sustained in history has been between the court and the counsel.

I'll refer you to Sacher, that it -- that probably the most famous case of contempt to come before this Court.

Came out of the Dennis trial.

It was between Judge Medina and Sacher.

Justice Thurgood Marshall: Did Judge Medina ever say it's between you and me?

Mr. Neil Dixon: He didn't say it, Your Honor he simply (Voice Overlap).

Justice Thurgood Marshall: Well, the other court --

Mr. Neil Dixon: -- and sentenced him to jail.

Justice Thurgood Marshall: Well, that difference is this is another judge.

It says, it's a personal front to me, personally.

Chief Justice Warren E. Burger: Well, what did the judge say here in fact on page 14, in the middle of the page, counsel?

Mr. Neil Dixon: I do not think that there is any other party at interest other than the official body of the court.

Chief Justice Warren E. Burger: Well, I'm speaking of the sentence that begins right in the middle, this shall we say will be -- be between yourself and this Court, and this Court.

Mr. Neil Dixon: Yes.

Yes sir, that is my view of it.

Chief Justice Warren E. Burger: I don't that he said between yourself and me.

Mr. Neil Dixon: Well, --

Chief Justice Warren E. Burger: At that point, does he say that's --

Mr. Neil Dixon: No sir.

Now it may say it elsewhere, I don't know what page Justice Marshall is quoting from.

Justice Thurgood Marshall: At the same page, that's just what I read to you.

Mr. Neil Dixon: He starts out with (Voice Overlap) saying I do not think there is any other party in interest other than the official body of the court as I see it which is in the middle of page 14.

Which is what every contempt case is and I think that Judge Williams has done nothing more than say that.

That's what Sacher was.

That was sustained by this Court.

That's what Terry was cited in our brief.

That was sustained by this Court that came out of Texas.

That's what every direct contempt is.

It was only in the rare instance that you have an out of court contempt with proof elements that a court calls on counsel.

Now, throughout the nation, I don't know of any general practice of a court calling on counsel to handle direct contempts.

Certainly in no reported decision of this Court has that been the case that I have ever been able to find in a direct contempt case.

I have noticed an order from this Court doing it, yes sir in a contempt citation.

Justice Thurgood Marshall: Wasn't there a case in the federal court in your state in which the lawyer was tried for contempt several weeks after the contempt by another judge?

Mr. Neil Dixon: But we have a trial by another judge here, Your Honor.

Justice Thurgood Marshall: That's right.

But I thought you said it can always happen the other way.

Mr. Neil Dixon: No, sir, I am talking about --

Justice Thurgood Marshall: On the same statute?

Mr. Neil Dixon: I'm talking about hiring about the court appointing counsel to prosecute which seems to be what Your Honor is intimating.

Justice Thurgood Marshall: No, no.

But --

Mr. Neil Dixon: Because in this case we do not have the trial judge.

The trial -- the judge making the contempt citation hearing it, this is another judge hearing it.

Unknown Speaker: Could I ask you -- I don't suppose that it could be held contemptuous if a -- if an attorney asks the judge to recuse himself for bias against this client because --

Mr. Neil Dixon: Absolutely not, Your Honor.

Unknown Speaker: And if the judge says, well, what makes you think I am biased?

And he says, well my client has -- trying to get you impeached for biased and for corruption.

Now, that's quite relevant to the bias charge, isn't it?

Mr. Neil Dixon: No sir, under this circumstance.

Unknown Speaker: Why not?

Why not for having --

Mr. Neil Dixon: We have first a multiple court judge in the First Judicial District Court.

We had an attorney who did not like a ruling of the judge.

The ruling was correct but the attorney didn't like it.

So the attorney wanted to try again before anther judge.

So he advises the judge who has no other way of knowing it.

He advises the judge that judge my clients think you are corrupt therefore recuse yourself.

Justice Byron R. White: Well, let's assume that were true that his clients had actually filed a formal petition against the judge to get him impeached and the lawyer then files a motion in court for a recusal saying my clients have filed this petition alleging that you're corrupt and hence I think you should recuse yourself for bias.

Mr. Neil Dixon: Like you need two things, you'd need --

Justice Byron R. White: But unless -- just take those facts.

Mr. Neil Dixon: Those facts haven't set enough, Your Honor.

Justice Byron R. White: Why not?

Mr. Neil Dixon: I think that the judge -- that the counsel must have alleged, Louisiana is a fact pleading state.

It is not a -- what do you call it in common law, issue pleading.

Louisiana is a fact pleading.

You have omitted the essential fact and that is you judge are aware that my client thinks you are corrupt.

Are you judge are aware that my client has filed a petition against you.

Unknown Speaker: Well, I'll put that --

Mr. Neil Dixon: Now, put that in -- he cannot be held for contempt.

Now he may be guilty of certain other disciplinary action but put that in and he cannot be held for contempt.

Unknown Speaker: So you say can be held in contempt here because what?

Mr. Neil Dixon: Well, I say he does --

Unknown Speaker: Because he does allege that he is planning --

Mr. Neil Dixon: Well, let me back up.

The corruption is unnecessary to the first charge, is unnecessary to the plea.

All he has to say is, I have filed a motion for your -- or my clients are seeking your removal and I've filed a petition for your removal.

He never has to repeat the allegation corruption anywhere in order to achieve his ends, that is obtain the recusation.

Anytime he uses the word corruption under our pleading he is using a word that is irrelevant to his pleading and is irrelevant -- criticism of a trial judge.

Justice Thurgood Marshall: If it had been any quotes, would it have helped him?

Mr. Neil Dixon: I don't think so Your Honor.

Justice Thurgood Marshall: Yes, that's right.

Mr. Neil Dixon: And I would say this, there's talk in the brief about it being a lawyerlike language.

It is no more lawyerlike than to file a motion before a court saying the court should recuse itself because it's guilty of murder, burglary, rape or what have you.

All of these terms are lawyerlike when used in the proper context, every one of them.

But words that a lawyer uses in one case may not be appropriate to another case.

And the appropriateness of the charge is the one foundation and we submit the only foundation laid down by this Court in Holt versus Virginia, appellant has --

Justice Thurgood Marshall: Did I understand you correctly that if he had said that you know that my client has publicly charged you with corruption that would be alright?

Mr. Neil Dixon: I think, Your Honor you -- if we take that exact quotation that you used and nothing more.

I think that it could be.

You know that my client has charged you with you corruption.

Now we have here a different circumstances, we say --

Justice Thurgood Marshall: Yes but (Voice Overlap) --

Mr. Neil Dixon: -- we say, filed a -- or attempting to remove you from office but just limited to the words that you used.

Mr. Justice, I think that it could not be contempt.

Justice Thurgood Marshall: Oh, you mean that he has filed a petition to remove him from office because he charges you with being corrupt.

That would be alright?

Mr. Neil Dixon: I do not know that it would be alright.

We do not have that issue but I do not think it would be alright because then the word corrupt is unnecessary to the pleading.

In your first time with it the word was necessary to the pleading.

Here it is, is not necessary.

The standard that this Court said in Holt -- set in Holt versus Virginia was whether or not the language was appropriate, the wording by this Court was wholly appropriate to the charge made.

Now we submit that our read -- in our reading of Holt versus Virginia, this Court does not reach or come close to reaching a free speech issue and that Holt versus Virginia cannot be relied on as ever having raised a free speech issue.

Holt versus Virginia dealt with a very basic, basic right, our right which Louisiana grants by statute and that is the right of a litigant to a trial before a fair tribunal.

For attempting to exercise that right in Virginia, Mr. Holt was cited for contempt.

Louisiana spells out the methods of exercising that right.

We have such things as motions for recusal.

We have motions for change of venue.

In Holt versus Virginia, the language wasn't a change of venue.

I would urge that your -- that Your Honors review the language used in Holt and compare it with the language used by Mr. Spencer.

The language used in Holt is quoted in appellants brief on page 13 and 14 and we submit is -- takes it entirely out of the realm of with what we are dealing with in the instant case.

The charge made in Holt was entirely appropriate to a charge of bias.

The strongest language used in Holt versus Virginia that could have possibly been considered as impinging upon the sensitivities of the trial judge was that the trial had been intimidating counsel.

But now that allegation under certain circumstances might be contempt.

But it could never be direct contempt when filed in a petition to recuse.

If a judge has been intimidating counsel, counsel is entitled to have the judge recuse.

Justice Hugo L. Black: As the exact language therefore, what do you think he was filing for contempt?

Mr. Neil Dixon: In Holt versus Virginia.

Justice Hugo L. Black: I mean in our case.

Mr. Neil Dixon: The exact language, Your Honor is --

Justice Hugo L. Black: In the appendix.

Mr. Neil Dixon: Your Honor first, I would not limit it to the -- to one group of words in the motion because the order of contempt does not so limit it.

The order of contempt refers to the petition as a whole and then says particularly Article 4 thereof on pages 8 and 9 in which the words are repeated, corruption, favoritism, oppression and misfeasance in office.

The -- at the very top of page 9, corruption, favoritism, oppression and misfeasance in office.

These words are also conclusion, words of conclusion.

I mention before we are a fact-pleading state not an issue-pleading state.

There is no allegation in this motion connecting any corruption, favoritism, oppression or misfeasance with the trial of the separation suit then pending before the court.

These words do not have to be contempt if under some wild set of facts.

A -- the corruption of a judge has some connexity with the litigation pending before it.

But absent such connexity which we submit that these words are in of themselves offensive and the word offensive again is the word of this Court in Holt versus Virginia.

In Holt versus Virginia, they said the words of counsel are not offensive in and of themselves.

We submit that with these words as here used are offensive in and of themselves.

The fact that a word may be contained in a statute or a constitution does not mean that within all context it cannot be offensive in and of itself.

The fact that favoritism, corruption, murder and rape may be all statutory words does not mean that they cannot be words if used in a charge against a judge that are offensive in and of themselves.

Justice Hugo L. Black: Was the statement in for the statement of fact?

Was it a fact?

Mr. Neil Dixon: Your Honor?

Justice Hugo L. Black: Would you mind reading it and say whether or not it was a fact.

Mr. Neil Dixon: The plaintiff herein, Luis B. Hopkins and his chief witness in this cause, Charles Anderson are presently engaged in the process of.

Your Honor this allegation was --

Justice Hugo L. Black: Was that true?

Mr. Neil Dixon: -- made on March the 21st.

Justice Hugo L. Black: Yes, was this true?

Mr. Neil Dixon: No sir, it was not true.

Justice Hugo L. Black: It was not true that they had made that statement?

Mr. Neil Dixon: Throughout --

Justice Hugo L. Black: I'm not talking about whether --

Mr. Neil Dixon: -- the protracted collateral federal proceedings and throughout this proceeding there is nothing anywhere to indicate that Mr. Hopkins or Mr. Anderson even had any ill-will to Judge Dixon.

Justice Hugo L. Black: Well, I understand that but that's not what's alleged here, is it?

What is alleged?

Mr. Neil Dixon: It is alleged that Mr. Hopkins and Mr. Anderson are attempting to have him removed from office throughout --

Justice Hugo L. Black: As being unfit therefore by virtue of corruption, favoritism, oppression and misfeasance in office?

Mr. Neil Dixon: Your Honor, --

Justice Hugo L. Black: Now was that true?

Mr. Neil Dixon: Your Honor, that was not true, I've been attempting not to get beyond the record.

Judge Dixon of course is my brother but that was not true.

Justice Hugo L. Black: Well, I -- that's alright but I'm not asking if the statement is true.

I'm asking if the statement is true that they had made that statement in court.

Mr. Neil Dixon: They have certainly did not made that statement in court, Your Honor.

No, sir.

Justice Hugo L. Black: Well, what was this referred to, was it a statement referred to in court?

Mr. Neil Dixon: No, sir.

We don't know what it referred to.

Now, presumably --

Justice Hugo L. Black: They say they are presently engaged in the process of attempting to have Judge Dixon removed from office being unfit therefore, was that true?

Mr. Neil Dixon: I do not think it was true, Your Honor.

There has never been a petition for his removal filed.

Justice Hugo L. Black: Were they not engaged in that effort?

Mr. Neil Dixon: To my knowledge they did not.

May I point this out Your Honor, it takes but 25 irate litigants within a large metropolitan area to file a mandatory petition for removal with the Attorney General.

Such a petition was never filed.

Chief Justice Warren E. Burger: But was any petition filed anywhere?

Mr. Neil Dixon: No sir, no where.

Justice Hugo L. Black: They had not proceeded against him on that basis?

Mr. Neil Dixon: They have never proceeded, Your Honor.

Justice Hugo L. Black: At any way or time or place?

Mr. Neil Dixon: Any where or time or place.

Justice Hugo L. Black: Now, is that shown to be untrue in the record?

Mr. Neil Dixon: Only to this extent.

We argue it Your Honor to this extent only.

On March the 20th, the day of the separation hearing, there must have existed no ground for recusation for if they did, counsel was remiss in not having filed his motion within 24 hours, counsel --

Justice Hugo L. Black: I understand that --

Mr. Neil Dixon: -- then raises it.

Justice Hugo L. Black: -- argument.

Mr. Neil Dixon: Sir?

Justice Hugo L. Black: But here is a statement made and I judge that what you say, that is the basis of the conviction.

Now, does the record show that that statement was not true whether we just have to infer it.

Mr. Neil Dixon: It depends on what the line between inference and showing.

My view is that it shows -- I think your view would be that it infers it, Your Honor.

It infers it only that it no time in either the federal court proceeding which is fully reported we might add.

Or in this proceeding, the trial of which took place about 18 months after the occurrence.

Was there ever again any mention of the existence of such a petition?

During the federal court litigation with the intending -- with the attendant ill-publicity Judge Dixon was elected by the voters of his district to the Second Circuit Court of Appeals, hardly an event consistent with an action for his removal for corruption, favoritism oppression and misfeasance in office.

Justice Hugo L. Black: Sometimes that happens to men.

You charge by the right person.

Mr. Neil Dixon: In defense of the voters of the City of Shreveport, Your Honor, it never helps to be accused of corruption under any circumstances anytime.

Justice Hugo L. Black: But sometimes, I have known people that get great benefit out of it because it wasn't true and they knew that the man made it, you avoid it.

Chief Justice Warren E. Burger: Let me go to the time of the hearing before Judge Williams --

Mr. Neil Dixon: Yes, sir.

Chief Justice Warren E. Burger: -- the judge who was going to hear the contempt.

At that time did the petitioner here put into evidence any document or any evidence by any process indicating that before he filed this pleading, there had been a petition of some kind filed alleging these acts of misconduct?

Mr. Neil Dixon: Mr. Chief Justice, he did not and we submit that that is a very significant fact.

Justice Hugo L. Black: Well, didn't the court prevent him offering any evidence?

Mr. Neil Dixon: No sir, no sir.

Justice Hugo L. Black: He didn't.

Mr. Neil Dixon: No, sir.

Justice Hugo L. Black: What was it they kept him from doing it?

Mr. Neil Dixon: Mr. Spencer subpoenaed the three co-judges or four co-judges of Judge Dixon.

Those who sat on the bench with him and wanted to ask them specific questions set out in the record to establish --

Justice Hugo L. Black: I thought the court refused to let them ask any questions?

Mr. Neil Dixon: To ask them the questions he's -- he was given the opportunity Your Honor.

Judge Williams said, “What do you want to prove by it, Mr. Spencer?”

He said, “Here's what I want to prove by them.”

The judge says, “That is not admissible.

Mr. Spencer, have you anything else to offer?”

Justice Hugo L. Black: What was it he said he wanted to prove by?

Mr. Neil Dixon: He wanted prove that Judge Dixon had filed -- had conferred with them and filed a contempt charge without any expectation of obtaining a conviction.

He had had to make that condition across the street, in the federal court to bring it -- to get him a three-judge court.

And that he wanted to file -- he said something vaguely about his long disputation between himself and Judge Dixon.

Part of which is reported in the -- its not rather reported but a case that arose out of it was Spencer versus Dixon to the Louisiana Supreme Court in which the Louisiana Supreme Court held Mr. Spencer in contempt for the same situation for having called the Louisiana Supreme Court corrupt.”

Justice Thurgood Marshall: But in no time, did he put on any evidence of the -- about this petition that had been filed?

Mr. Neil Dixon: At no time did he put on any and there's no time once he denied the right to put on any.

And the last fact we submit is the significant fact that removes this from all of the constitutional issues raised by appellant.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Mr. Wulf, your time is up but I'd like to ask you a question and if you please confine yourself just to answering questions of any members of the court at this stage.

Do you claim that in this record anywhere, there is evidence of the filing of the kind of petition that was alluded to in paragraphs 4, 5, 6, or 7 or any other part of that petition which created all this problem?

Rebuttal of Melvin L. Wulf

Mr. Melvin L. Wulf: Nothing whatsoever one way or the other?

Unknown Speaker: In the record?

Mr. Melvin L. Wulf: In the record.

However, Mr. Spencer did assert over and over again that he had been denied the right to file any evidence -- to produce any evidence of that petition having been filed.

And as I read on my principal presentation, Judge Williams himself in his opposition to the appellant's application for writs in the Louisiana Supreme Court, and you'll find this at page 21 of the jurisdictional statement.

He says, this is Judge Williams who was on the hearing, he said, “Applicant in his petition, page 5, paragraph (e), section 5, assigns this error, the trial court not allowing a defense of truth to the contempt charge.”

Justice Potter Stewart: Sorry, sorry, because this is quite important.

Mr. Melvin L. Wulf: Sir?

Justice Potter Stewart: You're in the appendix?

Mr. Melvin L. Wulf: No, I'm on the jurisdictional statement.

Justice Potter Stewart: I beg your pardon?

Justice Hugo L. Black: What page?

Mr. Melvin L. Wulf: Page 21 of the jurisdictional statement which reproduces beginning at page 16, Judge Williams' response to the application for writs of certiorari in the Louisiana Supreme Court.

That at page 21, I just read the first sentence, the second sentence says, Judge William, and this is Judge William himself speaking in the third person.

Judge William refused to admit any such evidence.

And then he goes on to cite a case, Getro v. Getro (ph) in Louisiana Supreme Court which held in 1952, the justification is not a defense for contempt of court.

Chief Justice Warren E. Burger: You don't suggest that when -- that that's statement refers to the kind of a petition that we're talking about in the question I put to you.

Mr. Melvin L. Wulf: Though this statement refers to the appe -- to Mr. Spencer's efforts to establish that such a petition was actually being circulated.

Chief Justice Warren E. Burger: And I can't read it that way?

Mr. Melvin L. Wulf: Well, that's why I read it.

The science is error.

The trial court --

Chief Justice Warren E. Burger: That can relate only to the judge's refusal to let the four judges testify on the grounds that you said it --

Mr. Melvin L. Wulf: No, all of --

Chief Justice Warren E. Burger: And if you look on page 21 of your appendix, you'll see that Judge Williams asked him whether there was anything else he had to offer and said at the top of page 21, the court feels, he will be glad to see what you have to offer.

And he said, he couldn't find it for a few minutes.

The judge gave him a recess for five minutes.

And all he came back with after the five minute recess was that he would like to point out some further cases, some citations, not facts, not documents, not reference to any kind of a petition that supported his statement in paragraph 4 or 5?

Mr. Melvin L. Wulf: Yes.

I don't disagree with that at all though the witness says he tried to bring back at that time had no relevancy at all to the existence or non-existence of such a petition.

Justice John M. Harlan: I'd like to ask you a further question in view of the colloquy with your adversary, Mr. Dixon here, would you care to comment on his statement that you said was going outside the record that in fact, no petition under the section has ever been filed.

Mr. Melvin L. Wulf: All I can say as I was told that such a petition was circulated was drawn up and circulated.

It may not have been filed.

They may not have been able to secure the necessary 25 signatures.

But that isn't the -- that isn't the assertion in the motion to recuse.

It isn't that it was filed.

It was said that they're presently engaged in the process of attempting to have Judge Dixon removed, the implication being that they were trying to get the necessary 25 signatures.

But I'm told that such a petition was typed up and was in existence.

Chief Justice Warren E. Burger: Don't you think it was incumbent on Mr. Spencer at some time to produce that and put it on the record so that you could have it here?

Mr. Melvin L. Wulf: I surely do unless what Judge Williams says is accurate that he refused to admit any such evidence.

Unknown Speaker: (Voice Overlap) --

Mr. Melvin L. Wulf: But I perfectly -- I agree 100% that there has nothing in the record one way or the other which shows whether or not such a petition exists.

Chief Justice Warren E. Burger: Well, I can't see how it's possible to read Judge Williams statement as meaning what you say it means but only relating to the testimony of the four judges which he excluded on the ground that the justification was not admissible evidence.

But if any such document, if you wish to supplement this record, I think we would invite you to supplement the record in that regard.

Mr. Melvin L. Wulf: Alright, Your Honor.

Chief Justice Warren E. Burger: Thank you.

The case is submitted.

Thank you, gentlemen.

Mr. Melvin L. Wulf: Thank you, sir.

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