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CRS Annotated Constitution

Article III -- Table of ContentsPrev | Next

Due Process Limitations on Contempt Power: Right to Jury Trial.—Until recently, it was the rule that the right to a jury trial was not available in criminal contempt cases.193 But in Cheff[p.631]v. Schnackenberg,194 it was held that when the punishment in a criminal contempt case in federal court is more than the sentence for a petty offense, the Court drew the traditional line at six months, a defendant is entitled to trial by jury. Although the ruling was made pursuant to the Supreme Court’s supervisory powers and was thus inapplicable to state courts and presumably subject to legislative revision, two years later the Court held that the Constitution did require jury trials in criminal contempt cases in which the offense was more than a petty one.195 Whether an offense is petty or not is determined by the maximum sentence authorized by the legislature or, in the absence of a statute, by the sentence actually imposed. Again the Court drew the line between petty offenses and more serious ones at six months imprisonment. Although this case involved an indirect criminal contempt, willful petitioning to admit to probate a will known to be falsely prepared, the majority in dictum indicated that even in cases of direct contempt a jury will be required in appropriate instances. “When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even–handed exercise of judicial power.”196 Presumably, there is no equivalent right to a jury trial in civil contempt cases,197 although one could spend much more time in jail pursuant to a judgment of civil contempt than would be the case with most criminal contempts;198 however, the Court has expanded the right to jury trials in federal civil cases on nonconstitutional grounds,199 so that it is possible the process followed in criminal contempts could be repeated.

Due Process Limitations on Contempt Powers: Impartial Tribunal.—In Cooke v. United States,200 Chief Justice Taft ut[p.632]tered some cautionary words to guide trial judges in the utilization of their contempt powers. “The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course, where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. United States, 299 F. 283, 285; Toledo Newspaper Co. v. United States, 237 F. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.”

Sacher v. United States201 grew out of a tempestuous trial of eleven Communist Party leaders in which Sacher and others were counsel for the defense. Upon the conviction of the defendants, the trail judge at once found counsel guilty of criminal contempt and imposed jail terms of up to six months. At issue directly was whether the contempt charged was one which the judge was authorized to determine for himself or whether it was one which under Rule 42(b) could only be passed upon by another judge and after notice and hearing, but behind this issue loomed the applicability and nature of due process requirements, in particular whether the defense attorneys were constitutionally entitled to trial before a different judge. A divided Court affirmed most of the convictions, setting aside others, and denied that due process required a hearing before a different judge. “We hold that Rule 42 allows the[p.633]trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion, he may do so without extinguishing his power. . . . We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyers calling.202

In Offutt v. United States,203 acting under its supervisory powers over the lower federal courts, the Court set aside a criminal contempt conviction imposed on a lawyer after a trial marked by highly personal recriminations between the trial judge and the lawyer. In a situation in which the record revealed that the contumacious conduct was the product of both lack of self–restraint on the part of the contemnor and a reaction to the excessive zeal and personal animosity of the trial judge, the majority felt that any contempt trial must be held before another judge. This holding that when a judge becomes personally embroiled in the controversy with an accused he must defer trial of his contempt citation to another judge, founded on the Court’s supervisory powers, was constitutionalized in Mayberry v. Pennsylvania,204 in which a defendant acting as his own counsel engaged in quite personal abuse of the trial judge. The Court appeared to leave open the option of the trial judge to act immediately and summarily to quell contempt[p.634]by citing and convicting an offender, thus empowering the judge to keep the trial going,205 but if he should wait until the conclusion of the trial he must defer to another judge.

Contempt by Disobedience of Orders.—Disobedience of injunctive orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers,206 the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court’s jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Second, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional.207 Third, on the basis of United States v. Shipp,208 it was held that violations of a court’s order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court’s jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and punitive measures, which may be imposed in a single proceeding.209

Contempt Power in Aid of Administrative Power.—Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of ICC v. Brimson,210 where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947, a proceeding to enforce a subpoena duces tecum issued by the Securities and Exchange Commission during the course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil con[p.635]tempt.211 Notwithstanding the power of administrative agencies to cite an individual for contempt, however, such bodies must be acting within the authority that has been lawfully delegated to them.212


Footnotes

193 See Green v. United States, 356 U.S. 165 (1958); United States v. Barnett, 376 U.S. 681 (1964), and cases cited. The dissents of Justices Black and Douglas in those cases prepared the ground for the Court’s later reversal. On the issue, see Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1042– 1048 (1924).
194 384 U.S. 373 (1966).
195 Bloom v. Illinois, 391 U.S. 194 (1968).

Supplement: [P. 631, add to n.195:]

See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (refining the test for when contempt citations are criminal and thus require jury trials).

196 Id., 209. In Codispoti v. Pennsylvania, 418 U.S. 506 (1974) the Court held required a jury trial when the trial judge awaits the conclusion of the proceeding and then imposes separate sentences in which the total aggregated more than six months. For a tentative essay at defining a petty offense when a fine is levied, see Muniz v. Hoffman, 422 U.S. 454, 475–477 (1975).

Supplement: [P. 631, add to n.196:]

In International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994) , the Court continued to reserve the question of the distinction between petty and serious contempt fines, because of the size of the fine in that case.

197 The Sixth Amendment is applicable only to criminal cases and the Seventh to suits at common law, but the due process clause is available if needed.
198 Note that under 28 U.S.C. Sec. 1826 a recalcitrant witness before a grand jury may be imprisoned for the term of the grand jury, which can be 36 months. 18 U.S.C. Sec. 3331 (a).
199 E.g., Beacon Theatres v. Westover, 359 U.S. 500 (1959); Dairy Queen v. Wood, 369 U.S. 469 (1962); Ross v. Bernhard, 396 U.S. 531 (1970). However, the Court’s expansion of jury trial rights may have halted with McKeiver v. Pennsylvania, 403 U.S. 528 (1971).
200 267 U.S. 517, 539 (1925).
201 343 U.S. 1 (1952). See Dennis v. United States, 341 U.S. 494 (1951).
202 Id., 13–14.
203 348 U.S. 11 (1954).
204 400 U.S. 455 (1971). See also Johnson v. Mississippi, 403 U.S. 212 (1971); Holt v. Virginia, 381 U.S. 131 (1965). Even in the absence of a personal attack on a judge that would tend to impair his detachment, the judge may still be required to excuse himself and turn a citation for contempt over to another judge if the response to the alleged misconduct in his courtroom partakes of the character of “marked personal feelings” being abraded on both sides, so that it is likely the judge has felt a “sting” sufficient to impair his objectivity. Taylor v. Hayes, 418 U.S. 488 (1974).
205 See Illinois v. Allen, 397 U.S. 337 (1970), in which the Court affirmed that summary contempt or expulsion may be used to keep a trial going.
206 330 U.S. 258, 293–307 (1947).

Supplement: [P. 634, add to n.206:]

See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994) .

207 See Walker v. City of Birmingham, 388 U.S. 307 (1967).
208 203 U.S. 563 (1906).
209 See United States v. United Mine Workers, 330 U.S. 258, 299 (1947). But see Cheff v. Schnackenberg, 384 U.S. 273 (1966), and supra, 630–631, as to due process limitations.
210 154 U.S. 447 (1894).
211 Penfield Co. v. SEC, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them, see also McCrone v. United States, 307 U.S. 61 (1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
212 Gojack v. United States, 384 U.S. 702 (1966). See also supra for a discussion on Congress’ power to cite an individual for contempt by virtue of its investigatory duties, which is applicable, at least by analogy, to administrative agencies.
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