Petition — Crumpacker v. Ruman
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OcTOBER TERM, 1976 ~
No. A-582
OWEN W. CRUMPACKER,
Petitioner,
VS.
SAUL I. RUMAN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.
OWEN W. CRUMPACKER, EsQ.,
Room 300,
Hammond Building,
5217 Hohman Avenue,
Hammond, Indiana 46320,
Attorney Pro Se.
THOMAS T. CRUMPACKER, Esq.,
Room 300,
Hammond Building,
5217 Hohman Avenue,
Hammond, Indiana 46320,
Of Counsel.
Gunthorp-Warren Printing Company, Chicage e Financial 6-6565
TABLE OF CONTENTS.
PAGE
SINE cc nchdnehoh eon snebenes 4qedne ose 1
2 bival ses c eke rece a deeaee Shaan 2
ae nk. oa Sees pak aay One 4
Whether the due process clause of the Fifth Amend-
ment and the federal contempt statute deprive a federal
court of jurisdiction to levy a separate fine upon both
a party litigant and its counsel for alleged delays in
consummating an agreed settlement of pending litiga-
GE. ons mhdlktnebedondeddicenchsecepeeenesan 4
Whether a federal court has jurisdiction under its
contempt powers, either statutory or inherent, to fore-
close and prevent an investigation and report by a
party litigant of palpable fraud on the court ....... a
Whether a federal court retains jurisdiction to pun-
ish an attorney for a party litigant for contempt for
allegedly interfering with the settlement of a pending
lawsuit after his client has consummated the settle-
GE chow hee ebebednnde.s6bossevensbnsedanes a
Whether a federal trial judge is under a mandatory
duty to disqualify himself from hearing and deciding
charges of contempt against an attorney when the trial
judge, four months earlier, has conducted a hearing,
_ called witnesses, and entered a finding of misconduct
against the same atformcy ... 2... cece cccccccess 4
Whether a federal judge has jurisdiction, in view of
the limitations placed upon him under the Eighth
Amendment and the federal contempt statute and
rules of criminal procedure, to suspend or disbar the
attorney from practicing in the federal court for failure
to pay a $240.00 fine levied against him and payable
to the attorney for his client’s adversary ........... .
IIE Seb voce cbbcdeuicvosvcecnete ce 5
in cs oo pc W hE hess 008s ed0 Obes ve «6
Reasons for Granting the Writ ..................... 13
Ss Me oe OE Gon ee wale d od ks dbcseeas 22
APPENDIX A.
Order and Judgment of the United States Court of Appeals
i i. 565s bw owe bea Nw eee os eo Al
Order of the Court of Appeals Overruling the Petition for
CS GaN WChuncieh cWa dec nteeb oe ccs naes tee A6
Order of Mr. Justice Stevens Extending Time for the Filing
of a Petition for Writ of Certiorari ................. A7
Formal Order of the United States District Court for the
Northern District of Indiana Under Date of January 17,
SN aol Wain eich id Beats bakin siw-ées eck beee s A8
Excerpts of Judge Eschbach’s Oral Opinion and Decision
SE 6 o a a0 a pre 4c PA Kiowa « Cakes All
Respondent Saul I. Ruman’s Motion to Compel Completion
of Settlement Filed on August 28, 1974 ............. Al4
First Show Cause Order Entered by the District Court on
ee ek oe ee ald a os Al6
District Court’s Findings of Misconduct and Assessment of
Penalties on September 12, 1974 .................. Al7
District Court’s Third Show Cause Order Entered on Nov-
EL, DEER dias had hss x URES dOR Bree Al9
Amendment V, United States Constitution ............ A23
Amendment VIII, United States Constitution .......... A23
Rules of the Supreme Court of Indiana, Admission and
ET OE C'S CUE Ue owas de ubanstes dete vs A23
Title 18 U. S. C. Chapter 21—Contempts §§ 401 and 402 A24
Federal Rules of Criminal Procedure (Title 18) Rules 42
I i ee oa askew ahekud bao kik A27
er rer ee
- ae ee arene yr ere ee
TABLE OF AUTHORITIES.
Cases.
Abbott v. Eastern Massachusetts Street R. Co. (1927, C. A.
eg CM RY RAIA rrer yr ee ree 18
American Lighting Co. v. Public Service Corp. (1904,
Se, ee ee ee Se eer cicunbadn decades sds. 19
Anderson v. Dunn, 6 Wheat 204...............0455:- 14
Re Ayers (1887), 123 U. S. 443, 31 L. Ed. 216, 8 S. Ct.
Pe aba Ulan 6 ea RN bad Vaid re pin ees Sn SCREENS SS I 18
Beauchamp v. United States (1935, C. A. 9th Cal.), 76
SF PCs CSET OTT STORET LEE TTT 18
Bessette v. W. B. Conkey Co., 194 U. S. 328, 333; 48
L. Ed. 1002, 1004; 24 Sup. Ct. 665 (J... ..---- 16
Bon Air Hotel, Inc. v. Time, Inc., 376 F. 2d 118 (C. A.
i ee ren ry errr eer ees eee ee 13
Ex Parte Bradley, 74 U. S. (7 Wall.) 364 (1868)....... 21
Brotherhood of R. & S. S. Clerks v. Texas & N. O. R. Co.
(1928, D. C. Tex.), 24 F. 2d 426, mod. on reh. 25 F. 2d
- 876 affd. (C. A. 5th), 33 F. 2d 13 which is affd. 218
U. S. 548, 74 L. Ed. 1034, 50 S. Ct. 427.......... 19
Brougham v. Oceanic Stream Navigation Co. (1913, C. A.
) RAS § S|, errr rir ir 18
Ex Parte Buskirk (1896, C. A. 4th), 72 F. 14.......... 18
Cooke v. U. S., 267 U. S. 517; 45 S. Ct. 390; 69 L. Ed.
RO ee Terre Ter eT ee Te 14
In Re Dellinger, 461 F. 2d 389 (7th Cir. 1972)......-. 14
Evans v. Pack (1878, C. C. Mich.), 2 Flipp. 267, F. Cas.
EE ER eee eee ee? PP re oe ee 18
Ex Parte Fisk (1884), 113 U. S. 713, 28 L. Ed. 1117,
are 18
iv
Foot v. Buchanan (1902, C. C. Miss.), 113 F. 156...... 19
Gamble v. Pope and Talbot, Inc., 307 F. 2d 729 (C. C. A.
Be GEE sSis oc ctv cecaintes bok Re kweneeseeel 15
Graham v. United States (1938, C. A. 9th Cal.), 99 F. 2d
PEP secteur esceesceduses due hanes eae 18
Gompers v. Bucks Stove and Range Co., 221 U. S. 418;
2S GB GR Glee CEG E oc cdvccusvaeesienetas eee 16, 17
Jeffries v. Laurie, 27 Fed. 198 (E. D. Mo. 1886)...... 14
Kienle v. Jewel Tea Co., 222 F. 2d 98 (7th Cir. 1955)... 17
Ex Parte Lange, 18 Wall 163, 21 L. Ed. 872 (1874).... 15
Link v. Wabash Railroad Co., 370 U. S. 626 (1962)...13, 14
Lewis v. Peck (1907, C. A. 7th Ill.), 154 F. 273 cert. den.
207 U. S. 593, 52 L. Ed. 355, 28 S. Ct. 258......... 18
Mayberry v. Pennsylvania, 400 U. S. 455, 9 S. Ct. 499, 27
mS % FS ee ere ee ee 14, 20
In Re McConnell, 370 U. S. 230, 234; 82 S. Ct. 122,
SEE CRG ove cece ce di ipadesiduedeheneana 14
In Re Michael, 326 U. S. 224; 66 S. Ct. 78, 79; 90 L. Ed.
SO CTS iia s vicic ceds Kdetodin’ ceveedeeesesvpewad 14
National Hockey League v. Metropolitan Hockey Club,
aii — U.S. —....,. @ L. Ba. BB 747 CAGE). occ ccees GF
Offutt v. U. S., 348 U. S. 11, 75 S. Ct. 11, 99 L. Ed.
RE CIGSS).. oc cvccvccn sodenss¥utet eee 14
Phipps v. Wilson, 186 F. 2d 748 (7th Cir. 1951)....... 13
Precision Instrument Manufacturing Co. v. Automotive
M. M. Co., 324 U. S. 806, 89 L. Ed. 1381, 65 S. Ct.
SOS (IDES). 0 0.ic ce cv ds cddes dn00neee pene 19
Pueblo Trading Co. v. El Camino Irrig. Dist. (1948, C. A.
9th Cal.), 169 F. 2d 312 cert. den. 335 U. S. 911, 93
L. Bd. 444, @ & Cd. GOB. 2.5 owes s cnesencdcuenenl 18
\
Ex Parte Robinson, 86 U. S. (19 Wall.) 505 (1873).... 21
Ex Parte Robinson (1906, C. A. 9th), 144 F. 835...... 18
Ex Parte Rowland (1882), 104 U.S. 604, 26L. Ed. 861.. 18
Russell v. United States (1936, C. A. 8th Minn.), 86
ticked eheehbetidedeues greecacocccces 18
Re Sawyer (1888), 124 U. S. 200, 31 L. Ed. 402, 8
RE A in 18
Society Internationale v. Rogers, 78 S. Ct. 1087 (1958).. 13
State v. Nathans, 49 S. C. 207; 27 S. E. 52............ 19
Re Swan (1893), 150 U. S. 637, 37 L. Ed. 1207, 14
Re iad we phn oeenudeecoeccces 19
Toledo Metal Wheel Co. v. Foyer Bros., 223 Fed. 350
ee re 14
United States v. Atchison T. & S. F. R. Co. (1905, C. C.
eh «< ccucgeseseseedeeeeoccees 19
United States v. Debs (1894, C. C. Ill.), 64 F. 724...... 19
United States v. De Parcq (1947, C. A. 7th IL), 164
ihn. dns pcongeedoteeeavoeceseees 18
U. S. v. Meyer, 149 U. S. App. D. C. 212, 462 F. 2d
CET bode 6s es teddene pe eednse%oee se cee 14, 20
U. S. v. Stump, 112 F. Supp. 237 (D. Ala. 1953)....... 14
United States ex rel. Thomas v. Keokuk (1868), 6 Wall.
Dia Ms cadoeeccesesccceecceoeesees 18
United States ex rel. White v. Walsh (1949, C. A. 7th
i i: coco dbeeeceeesecoecceccess 18
Western Fruit Growers, Inc. v. Gotfried (1943, C. A. 9th
i cs ccc ecewccceacecocceeteses 18
Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914 (1876). 15
Worden v. Searls, 121 U. S. 27; 30 L. Ed. 858, 7 S. Ct.
cis ceccccssevceescceses: 19
vi
Statutes and Court Rules, Quoted. ;
Amendment V, United States Constitution . ... Appendix A23
Amendment VIII, United States Constitution . . Appendix A23
Rules of the Supreme Court of Indiana, Admission and
RED ED OD avvccccoocscceaccecces Appendix A23
Federal Rules of Criminal Procedure (Title 18) Rules 42
SE ctdecedtetacceseecens Appendix A26
Statutes and Court Rules, Cited.
SP We Oe ee OD Si bc cc cd Fecccudecwida 5, 12, 14, 19, 21
Pe Ue EE Kon 6e ce osceedesceececocesceeses 2G
Rule 42(b) Federal Rules of Criminal Procedure (Title
Sy S000 064600650 dee cchbebnceecescnecedei 5, 10, 16
Disciplinary Rule 7-102 of the Code of Professional Re-
sponsibility and Disciplinary Rule 7-103 ............ 19
Text.
Cordery, Law Relating to Solicitors ................. 21
IN THE
Supreme Court of the Gnited States
OcTOBER TERM, 1976
No. A-582
OWEN W. CRUMPACKER,
Petitioner,
vs.
SAUL I. RUMAN,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT.
Petitioner seeks a Writ of Certiorari to review the judgment
of the United States Court of Appeals for the Seventh Circuit
in ‘this case.
OPINIONS BELOW.
The opinion of the Court of Appeals is in the form of an
unpublished order dated October 1, 1976 and is attached as
App. Al thru AS. The Order of the District Court appealed
from and affirmed by the Court of Appeals is attached as App.
A8 thru AlO. Excerpts from the oral decision of the District
Court rendered the day prior to the formal decision appear at
appendix All thru Al3. The oral findings and order of the
District Court alleged to have been “blatantly, deliberately,
and wilfully disobeyed” by petitioner are set out at appendix
Al7 thru Als.
JURISDICTION.
The Order of the Court of Appeals (App. p. Al) was
entered on October 1, 1976. A timely petition for rehearing
was denied on Nov. 1, 1976 (App. p. A6). The order of
Justice Stevens extending the time for the filing of this petition
to and including February 22, 1977 is set out at App. p. A7.
The jurisdiction of this Court is invoked under 28 U. S. C.
§ 1254(1).
QUESTIONS PRESENTED.
After the close of the plaintiffs case on July 18, 1974,
counsel for the parties advised the trial judge that an amicable
settlement had been reached at a figure of $35,000 and the jury
was discharged after a day and a half of evidence.
Joseph Mancuso, a gang boss in charge of a re-railing crew,
sought compensation for the alleged loss of hearing in his left
ear attributed to the explosion of a torpedo on the rail of a
track in the yards where a derailment occurred the night before.
The employer, the Indiana Harbor Belt Railroad Company, was
sued under the Federal Employers Liability Act. Respondent
Saul I. Ruman had negotiated the settlement with a claim
agent, Joe Patno.
On the evening of July 17, petitioner, as counsel for the
railroad, had requested a write-up of the testimony of plaintiff's
witness, Vince Mendoza. On returning to his office from the
courthouse on July 18, petitioner recalled a discussion with a
lawyer's wife about the loss of a hearing aid following a car
accident in Dixmoor, Illinois (The plaintiff, Joseph Mancuso,
had been Mayor there for 17 years). Dr. Mason, who examined
Mancuso shortly before the trial but had not completed his
report, was contacted and stated: “This man had air cells in his
mastoid that indicated that he had ear trouble long before the
incident in question”.
3
These facts and similar circumstances prompted counsel for
the railroad to make an extensive investigation into the back-
ground of the plaintiff's witnesses, all of whom lived in Dixmoor
or adjacent suburbs, and all of whom were members of gang 16.
No one other than the members of gang 16 had ever seen a
torpedo in the railroad yard and the non-gang 16 employees
present at the re-railing heard no explosion. A transcript of the
testimony of all witnesses was ordered by defendant’s counsel
from the court reporter, Frank Butler. When the members of
gang 16 became restive about their money, respondent's in-
vestigator, Ray Kujovich, commenced contacting the claim
agent, Joe Patno, on the subject of the forthcoming $35,000
check. Counsel for Mancuso, on August 28, 1974, filed a
Motion to compel consummation of the settlement (App.
p. Al4). The following day, accepting respon ent’s allegations
as true, the trial judge ordered petitioner and Joe Patno to
appear for a hearing on Sept. 12, 1974 “to determine the
misconduct if any, of counsel and the appropriate penalties
therefore” (App. Al6). The trial judge called Patno as the
court’s witness and advised him of his right not to testify.
Counsel were ordered to make statements in lieu of sworn
testimony. At the conclusion of that hearing the trial judge
announced that he believed “no such investigation was under-
way, and that it is a sham put upon this Court by Defense
Counsel, Owen W: Crumpacker to warrant the delay of this
settlement.” The trial judge stated further: “If there are any
matters of criminal investigation involved in this regard to
either side, take that to the proper law enforcement officers,
be it FBI or the United States Attorney” (App. p. Al7). There-
upon the trial judge fined the railroad $1,000 per day if it
didn’t deliver the check in 7 days and ordered “Mr. Crumpacker
to pay Mr. Ruman the sum of $120 for three hours time need-
lessly consumed in pursuing a settlement, etc.” (App. Al7).
The railroad paid the $35,000 to Mr. Ruman within 7 days,
who then filed a satisfaction of jndgment. After a series of
4
further proceedings, counsel for the railroad was found guilty
of contempt for wilful disobedience of the September 12, 1974
order, fined an additional $120 and suspended from practice in
the United States District Court for the Northern District of
Indiana pending the payment of $240 to Mr. Ruman.
QUESTIONS PRESENTED.
Whether the due process clause of the Fifth Amendment
and the federal contempt statute deprive a federal court of
jurisdiction to levy a separate fine upon both a party litigant
and its counsel for alleged delays in consummating an agreed
settlement of pending litigation.
Whether a federal court has jurisdiction under its contempt
powers, either statutory or inherent, to foreclose and prevent
an investigation and report by a party litigant of a palpable
fraud on the court.
Whether a federal court retains jurisdiction to punish an
attorney for a party litigant for contempt for allegedly inter-
fering with the settlement of a pending lawsuit after his client
has consummated the settlement.
Whether a federal trial judge is under a mandatory duty to
disqualify himself from hearing and deciding charges of con-
tempt against an attorney when the trial judge, four months
earlier, has conducted a hearing, called witnesses, and entered
a finding of misconduct against the same attorney.
Whether a federal judge has jurisdiction, in view of the
limitations placed upon him under the Eighth Amendment and
the federal contempt statute and rules of criminal procedure,
to suspend or disbar the attorney from practicing in the federal
court for failure to pay a $240.00 fine ievied against him and
payable to the attorney for his client’s adversary.
STATUTORY PROVISIONS INVOLVED.
Amendments V and VIII of the Constitution are involved.
(App. A23) Title 18 U. S. C. Chapter 21—Contempts §§ 401
and 402 are set forth in App. A24 and A2S. Federal Rules of
Criminal Procedure (Title 18) Rule 42. Criminal contempt
appears at App. A26. Pertinent Rules of the Supreme Court of
Indiana, Code of Professional Responsibility, Admission and
Discipline Rule 23 appear at App. A23.
STATEMENT OF THE CASE.
Petitioner, a trial lawyer for 35 years, had never been
guilty of crime, misdemeanor or otherwise, and had never been
charged with contempt, civil or criminal, prior Ao Judge
Eschbach’s order of August 29, 1974 reading in pertinent part
as follows:
“This matter is of such serious proportions that this Court
deems a prompt hearing to be essential, not only to require
completion of the settlement but to determine the nature of
the misconduct, if any, of counsel and appropriate penalties
therefore.” (App. p. Al6.)
. Taking into consideration Mr. Ruman’s Motion to Compel
Completion of Settlement filed the previous day (App. Al4)
counsel for the railroad had no reason to believe that Judge
Eschbach’s order was not an order to show cause under Title
18, Federal Rules of Criminal Procedure, Rule 42(b) Criminal
Contempt. (App. p. A26) See Title 18 U. S. C. Chapter 21—
Contempts § 401 Power of Court. (App. p. A24)
Botl. counsel for the railroad and the claim agent appeared
“at the time and place of the hearing” in compliance with the
order to show cause and Rule 42 of the Federal Rules of
Criminal Procedure. The trial judge called the claim agent,
Joe Patno, as a witness after advising him of his rights against
6
self-incrimination. Patno testified under oath as the Court’s
witness that defense counsel had called him three or four times
to hold up the settlement because he thought there might be
some fraud in the case which he was investigating. Petitioner
advised the court that he had discussed the problem with
Mr. Patno’s superiors, E. L. Hunt and Robert Herkes.
He advised them that the Federal Judge, basically, had the
responsibility of determining whether the matter should be
looked into.
Mr. Crumpacker, by way of defense, attempted to refresh
the Court’s recollection with reference to the testimony of Vince
Mendoza. (Tr. 70) Mr. Mendoza’s testimony to the effect
that he had been in Mr. Ruman’s office in September of 1971
was the first time that the defendant knew of his participation.
The settlement was made in good faith. On the evening of July
17, Crumpacker asked Frank Butler, the court reporter, to fur-
nish him, immediately, with the Court’s remarks plus the
testimony of Mendoza and the cross-examination that evening.
(Tr. 71) The Court advised Crumpacker that the reporter was
too tired that night to look into it. (Tr. 71) Mr. Ruman
interrupted:
“I submit he should be limited to discussing the settle-
ment and not be permitted to go into, what is his usual
way, to put in all types of slanderous remarks, inferences,
and unsubstantiated statements not under oath by him.”
(Tr. 72)
After the lawyers left the courthouse on July 18, Crumpacker
recalled that a lawyer had been in an accident in Dixmoor and
had lost a hearing aid and that his car was taken to a car
repair shop operated by the plaintiff Mancuso in the case, or in
which he had an interest. (Tr. 73) The lawyer’s wife went
over to Dixmoor and found a man in the coffee shop, being the
shop described by the fire chief and police chief, who had
testified as witnesses, next to the 1. H. B. tracks. One of the men
present in the coffee shop was a man wearing a hearing aid.
4
(Tr. 73) Crumpacker then called Dr. Mason, one of the
defendant's intended witnesses, who had taken <-rays and
stated: “This man had air cells in his mastoid that indicated
that he had this ear trouble long before the incident in question.”
(Tr. 74) Crumpacker reviewed Dr. Kuhn’s testimony to the
effect that he made a mistake in the letter to Mr. Ruman in
reporting that it was the left ear instead of the right ear that
was the one where he had suffered the most damage. (Mancuso’s
witnesses testified that he was holding his left ear) Crumpacker
learned that Dixmoor (Joe Mancuso having been mayor for
17 years) was the subject of a number of investigations by the
state police. Either the fire chief or the police chief had testified
that Mancuso had a hearing aid in September, October, Novem-
ber, 1970, although Dr. Kuhn's fitting did not occur until
February of 1971. The employment records of Gang 16 indi-
cated that “they were all in one way or another connected with
Dixmoor and Dixmoor politics,” that they were all in debt and
“had numerous wage assignments.” (Tr. 75) These circum-
stances led Crumpacker to believe that a fraud had been per-
petrated on the Court and that perjured testimony had been
offered, particularly with reference to the fact that Vince Men-
doza, the foreman, who said he had been under the car bol-
stering it up when, in fact, as the evidence disclosed, they had
nothing to do with bolstering the car. (Tr. 75) Crumpacker
undertook to get the personnel records of the witnesses. He
studied them and went over them while waiting for Mr. Butler’s
transcript, and waiting for the return of the police lieutenant who
had investigated the various aspects of Mancuso’s testimony prior
to the time of the incident in question. (Tr. 75) Crumpacker’s
great concern was not the $35,000, but with reference to the
question of a perpetration of fraud and a violation of the
criminal laws under Title 18. (Tr. 76) Crumpacker learned that
Mancuso was making demands that were very unusual because
certain of his witnesses, Comforti, Winbush, Mendoza, and
others had not received their money. (Tr. 76) For that reason
- Crampacker was anxious to get as many of the facts together
before he made any report to the Court. Crumpacker talked to
railroad representatives on the subject. Crumpacker found that
the plaintiff's witnesses, Winbush, Stitts, Comforti, and others
had made numerous claims for alleged injuries against the rail-
road over the past 5 or 10 years. (Tr. 77) Mr. Ruman repre-
sented a man named Goddard who received a verdict in the
fall of 1972. (Tr. 77) Goddard was the engineer involved in the
train which was derailed on the evening of September 19, 1970,
the night before the alleged explosion involving Mancuso’s ear.
Crumpacker was attempting to complete his investigation and
get further information before reporting to the Court. (Tr. 78)
There were two (2) reasons for not reporting to the Court
earlier: (1) waiting for a police lieutenant in Homewood to
return from vacation, and (2) waiting for Mr. Butler’s transcript
of the testimony of Mendoza and the plaintiff's witnesses. Crum-
packer urged Mr. Mathias of personnel to furnish employment
records of Winbush and Comforti. On receiving the record of
persistent wage assignments, Crumpacker knew Comforti was
lying about “dropping a torpedo off of some kind of a place in
Calumet City.” (Tr. 79) In answer to the Court’s inquiry on a
report, Crumpacker stated as follows:
“Now, as far as I am concerned the only thing I can
suggest is that within the close of the week I will report all
of these things in writing. I have a lot of them assembled. I
hope that Mr. Butler can get the complete transcript which
I ordered at the time of the trial so that I can study it with
these reports, and I will then make and file in open court a
full report on everything that I have undertaken and ascer-
tained, and then if Your Honor determines on the basis of
the report that the check should be turned over to the
Plaintiff, I am sure that there will be absolutely no problem,
but it is my understanding that my primary responsibility is
to the Court. I mean regardless of the $35,000, which I
think is somewhat incidental, but I think that there are and
have to be circumstances that require a full and complete
investigation into the circumstances under which Mancuso
9
was referred to Ruman in September by an attorney with
whom I have not had a chance to talk with. His name slips
me, but he is an attorney in Blue Island who has been the
attorney that was representing these syndicate people in the
bond racket convictions, in various and sundry items of
violence, and I say that those are the matters that are of
concern to me, and that is the only reason that this matter
hasn’t been concluded within, I would assume, the normal
two or three weeks that the claim department takes to write
a check.” (Tr. 79-80)
The District Court’s finding and order of September 12, 1974
(App. p. Al7) were rendered in the presence of the news media,
as well as defense counsel’s client, Joe Patno.
Claim agent Joe Patno delivered the $35,000 voucher, payable
to Joseph Mancuso and Saul I. Ruman, his attorney, to Mr.
Ruman’s office within the seven (7) day period fixed by Judge
Eschbach to avoid the payment of a fine in the amount of $1,000
per day as adjudged. Saul I. Ruman, on October 10, 1974, filed
a “Satisfaction of Judgment Against Debtor” although no judg-
ment had been rendered.
On October 17, 1974, Ruman filed a written report with
reference to the failure of defense counsel (your petitioner) to
pay the $120.00.
-Mr. Ruman’s report alleged that Owen W. Crumpacker’s
failure to pay the $120.00 as ordered by the court was “inten-
tional with malice,” that he should be ordered to pay the $120.00
or show cause why he should not be held in contempt of court,
that the court enforce sanctions including removing him from
practice, and that a sum of punitive damages be assessed against
Owen W. Crumpacker in a reasonable sum not to exceed ten
thousand dollars ($10,000.00), etc.
On October 25, 1974, Judge Eschbach entered the requested
rule to show cause in the following language:
“Thereafter, Owen Crumpacker is ordered and directed to
show cause, if any he has, as to why sanctions should not be
10
imposed upon him for his alleged failure to comply with the
prior orders and sanctions of this court. Such showing shall
_ be made in writing and shall be filed in the office of the
clerk in or before November 19, 1974.
“Entered this 25th day of October, 1974.”
{n full compliance with the order of October 25, 1974, defense
counsel, On November 19, 1974, served and filed a written
response to the Order to Show Cause stating in pertinent part
as follows:
“Respondent states that, as an officer of the Court, in the
performance of his professional obligations to the Court, he
was obliged to call the Court’s attention to the palpable
fraud perpetrated upon the Court through the procurement
of perjured testimony, all as shown of record in the proceed-
ings heid and had before the Hon. Jesse E. Eschbach on
July 17 and 18, 1974.”
> * a * *
“Insofar as the Order of September 12, 1974, the Order of
October 25, 1974 and the ‘REPORT TO COURT ON
COURTS ORDER PERTAINING TO PAYMENT OF
ATTORNEY FEES’ constitute a charge by either Saul I.
Ruman or Hon. Jesse E. Eschbach that Respondent Owen
W. Crumpacker be punished for Contempt of Court, said
Respondent Owen W. Crumpacker denies all of the allega-
tions and charges insofar as they purport to accuse Respond-
ent Owen W. Crumpacker of bad faith.” we
Defense counsel procured a transcript of the hearing of Septem-
ber 12, 1974 and filed it in support of his written return in two
paragraphs.
Instead of permitting a hearing on the Rule tc Show Cause
and defense counsel’s response thereto, the court, on November
26, 1974, entered a five-page order consisting of an inaccurate
and prejudicial recitation of the facts. (App., pp. Al19
thru A22) A third “Rule to Show Cause” was entered under
the Federal Rules of Criminal Procedure, Title 18, Rule 42(b):
“Accordingly, this court will conduct a hearing at 12 noon
in the United States District Court Room on the second
11
floor of the Federal Building in Hammond, Indiana, on
January 16, 1975, as to why Owen Crumpacker, defense
counsel herein, should not be suspended from the practice
of law in the United States District Court for the Northern
District of Indiana until such time as the $120 sanction
previously assessed against counsel is paid.”
Defense counsel appeared before the court on the afternoon
of January 16, 1975 in response to the rule to show cause, and,
by way of oral statement in lieu of sworn testimony, responded
in part as follows:
“I am relying on the high privilege of a lawyer and a
member of the Bar to exercise his prerogatives according
to the dictates of his own conscience, to advise his client
as to what procedures they should take in a case, par-
ticularly a civil case, and that in my opinion it is beyond
the power of the Court to, as happened on the 12th of
September, disregard the high privilege of an attorney,
accuse him of bad faith, humiliate him in the presence of
his clients by taking the client and putting him on the
stand in front of him, and then in the client’s presence
determine that the lawyer and the advice that he was giving
him was a sham.”
Defense counsel advised the court that in his opinion, the
charges against him were false and that, at all times, he had
proceeded in accordance with the duties enjoined upon him as
an attorney, and as defined by the Code of Professional Respon-
sibility. Defense counsel, again, reviewed in detail what he
believed to be clear, convincing, detailed proof of the perpetra-
tion of a fraud on the court by Mancuso and his witnesses.
At the conclusion of the January 16, 1975 hearing, again in
the presence of the news media and without evidence, the court
concluded as follows:
“Gentlemen, as I have said, I have been a Federal Judge
for almost 13 years. In 13 years I not only have never
found a iawyer in contempt of court, I have never even
threatened to find a lawver in contempt of Court, and I
had hoped I never would. Unfortunately this blatant, de-
12
liberate, wilfull challenge to what I believe to be a valid
order to pay $120 in attorney fees cannot go unnoticed.
I would much prefer to spend this time in ruling on
motions, on trying cases than to be in here on this kind
of a matter, but how can I continue to discharge my oath
and my responsibilities if I turn my back on a known
wilfull disobedience to a court order, called to the atten-
tion of the Court by Counsel on the other side after at
least two complete full blown hearings having been held,
and every opportunity that I could dream of has been
presented to each side to present anything he wishes before
me. I don’t know what I sincerely could do.”
The trial judge ignored his ruling of September 12, 1974,
supra, refusing to permit defense counsel to have to the end of
the week to file a report in writing and his earlier determination
that “if there are any matters of a criminal investigation involved
* * * take that to the proper law enforcement officers, etc.”
stating:
“It is more than six months, I believe, since the trial. Mr.
Crumpacker has made and brought assertions and I
listened to them in open Court concerning perjury and
fraud in the evidence presented at trial by the Plaintiff,
yet to this date other than the broad assertions nothing
has ever been presented of a substantive evidentiary nature
to support those allegations. It was not my disinterest in
fraud that I proceeded to determine that your representa-
tions were a sham, it was because there was nothing to
back them up, nothing that I could find that was pre-
sented to me to support them.”
(On September 12, 1974, the trial judge deliberately and un-
equivocally ruled that he was not interested in evidence of
perjury and fraud or a written transcript and report demonstrat-
ing the same. )
Lest there be any doubt that both the plaintiff's counsel, re-
spondent Saul I. Ruman, and the trial judge, were intending to
convict defense counsel of the crime of indirect criminal con-
tempt as defined by Congress in 18 U. S. C. § 401(3), “dis-
a ee ee nee
13
obedience or resistance to its lawful writ, process, order, rule,
decree, or command,” we refer to the following comments:
“Quite frankly, Gentlemen, I almost prayed that Mr.
Crumpacker would pay the $120 but he chose not to do
so and to continue his wiifull defiance of the order of
this Court.
“Now I don’t want further argument, Gentlemen, I gave
you both unlimited opportunity. I want to ask you, Mr.
Crumpacker, and all I want is an answer of ‘yes’ or ‘no,’
sir, will you pay the $120?”
Petitioner refused to convict himself of the charges of mis-
conduct which the trial judge, on August 29, 1974, declared
to be “of such serious proportions that this court deems a prompt
hearing to be essential,” the trial judge attempted to convert
the proceedings from criminal contempt to civil contempt
thereby justifying his continued presence in the case for the
purpose of entering an order requiring the clerk’s office to strike
counsel’s appearance in all cases pending in the United States
District Court far the Northern District of Indiana.
REASONS FOR GRANTING THE WRIT.
This case involves an important question of constitutional
limitations and restrictions placed by Congress upon the ex-
ercise of contempt powers of federal courts. No question with
reference to the broad jurisdiction of federal courts to impose
sanctions upon attorneys and parties litigant under the Federal
Rules of Civil Procedure is involved. Link v. Wabash Railroad
Co., 370 U. S. 626 (1962). National Hockey League v. Metro-
politan Hockey Club, —..... U. S. , 49 L. Ed. 2d 747
(1976). Society Internationale v. Rogers (1958), 78 S. Ct.
1087. Bon Air Hotel, Inc. v. Tirne, Inc., C. A. 5 (1969) 376
F. 2d 118. Nor does this case question or involve the broad,
inherent powers of federal courts over attorneys. It is conceded
that, as officers of the court, attorneys are amenable to judicial
regulations by federal courts. Phipps v. Wilson, 186 F. 2d
14
‘748 (7th Cir. 1951). U. S. v. Stump, 112 F. Supp. 237 (D.
Ala. 1953). Jeffries v. Laurie, 27 Fed. 198 (E. D. Mo. 1886).
Toledo Metal Wheel Co. v. Foyer Bros., 223 Fed. 350 (6th
Cir. 1915).
However, by its very nature, the exercise of contempt powers
by federal courts is subject to grave abuses. Cooke v. U. S.
(1925), 267 U. S. 517; 45 S. Ct. 390; 69 L. Ed. 767.
Anderson v. Dunn, 6 Wheat 204. In Re Michael, 326 U. S. 224,
66 S. Ci. 78, 79, 90 L. Ed. 30. Mayberry v. Pennsylvania,
1971, 400 U. S. 455, 9- S. Ct. 499, 27 L. Ed. 2d 532. In Re
Dellinger, 7th Cir. 1972, 461 F. 2d 389. Offutt v. U. S., 348
U. S. 11, 75 S. Ct. 11, 99 L. Ed. 11. U. S. v. Meyer, 1972,
149 U. S. App. D. C. 212, 462 F. 2d 827. As stated by the
court in the case of In Re McConnell, 370 U. S. 230, 234, 82
S. Ct. 122, 1291 (1962):
“(3-5) The statute under which petitioner was summarily
convicted of contempt is 18 U.S.C. § 401, which pro-
vides that:
‘A court of the United States shall have power to
punish by fine or imprisonment, at its discretion, such
contempt of its authority, and none other, as—
‘(1) Misbehavior of any person in its presence or
so near thereto as to obstruct the administration of
justice * * *.’
“This section is based on an Act passed in 1831 in order
to correct serious abuses of the summary contempt power
that had grown up and was intended as a ‘drastic delimita-
tion * * * of the broad undefined power of the inferior
federal courts under the Act of 1789,’ revealing ‘a Con-
gressional intent to safeguard constitutional procedures by
limiting courts, as Congress is limited in contempt cases,
to ‘the best possible power adequate to the end proposed.’ ”
The Court will observe that the McConnell case was decided
by the same Court that decided Link v. Wabash Railroad Co.,
supra.
There is no statute or rule authorizing a federal court to
punish, by fine or sanction, a litigant and/or its attorney for
15
failing to consummate a settlement agreement with reference
to a pending case. Furthermore, petitioner was under a high,
legal and moral duty to investigate into and report the perpetra-
tion of a fraud on the court. In convicting the railroad and
its counsel of “serious misbehavior,” on September 12, 1974,
the court summarily declined to look into the detailed specifica-
tions of fraud and perjury and refused to permit the railroad’s
counsel to file a written report. In so doing, the court exceeded
its jurisdiction. The finding and sentence of September 12, 1974
are and were void. Windsor v. McVeigh (1876), 93 U. S. 274,
23 L. Ed. 914. Ex Parte Lange (1874), 18 Wall. 163, 21
L. Ed. 872. Gamble v. Pope and Talbot, Inc., C. C. A. 3,
1962, 307 F. 2d 729.
The Legal Effect of the Filing of the Satisfaction of Judgment.
To avoid paying the fine of $1,000 per day under the con-
viction and sentence of September 12, 1974, the railroad’s
voucher in the amount of $35,000 payable to Joseph Mancuso
and Saul I. Ruman was delivered by Claim Agent Patno to
Mr. Ruman’s office on September 19, 1974. On October 10,
1974, respondent Saul I. Ruman signed and filed a “Satisfaction
of judgment against debtor” reciting the receipt of $35,000
in full payment of the settlement. The satisfaction states that
the $120 fine levied against Owen W. Crumpacker had not
been paid. (Although no judgment had in fact been entered,
the filing of the acknowledgement of the receipt of the proceeds
of the settlement disposed of the lawsuit between the plaintiff,
Joseph Mancuso, and the defendant, Indiana Harbor Belt Rail-
road Company.)
Seven days later, and on October 17, 1974, with the main
action fully and finally disposed of, respondent Saul I. Ruman
went after the railroad’s counsel for the $120 fine. Alleging
that the failure to pay the fine was “intentional with malice”
respondent Ruman sought to have counsel for the railroad held
in contempt, removed from practice in the United States Dis-
trict Court, and fined an additional sum not to exceed $10,000.
16
In the rule to show cause issued by the District Court pur-
suant to Rule 42(b), of the Federal Rules of Criminal Procedure
(Title 18), (App. A26), Judge Eschbach recited the facts and
charges outlined by respondent Saul I. Ruman. The show cause
order commanded Owen W. Crumpacker to make his showing
in writing, filed in the office of the clerk, on or before November
19, 1974.
As hereinafter pointed out, a void order cannot be enforced
through contempt proceedings either criminal or civil. After
creating irreparable damage to the railroad’s counsel's name
and reputation, Judge Eschbach, on January 16, 1975 sought
to maintain jurisdiction to strike counsel’s name from the docket
sheets in all pending cases through his inherent jurisdiction to
enforce orders in civil actions. (Judgment January 17, 1975,
App. A8)
In so doing, both the District Court and the Court of Appeals
ignored the landmark decision of this Court in Gompers v. Bucks
Stove and Range Co. (1911), 221 U. S. 418; 31 S. Ct. 492.
Civil contempt proceedings were held to be ancillary to the main
case. When the main case was settled, the ancillary proceedings
also died. In reversing the decision of the Court of Appeals,
this Court stated:
“But, as we have shown, this was a proceeding in equity
for civil contempt, where the only remedial relief possible
was a fine, payable to the complainant. The company
prayed ‘for such relief as the nature of its case may require,’
and when the main cause was terminated by a settlement
of all differences between the parties, the complainant did
not require, and was not entitled to, any compensation or
relief of any other character. The present proceeding neces-
sarily ended with the settlement of the main cause of which
it is a part. Bessette v. W. B. Conkey Co. 194 U. S. 328,
333, 48 L. ed. 1002, 1004, 24 Sup. Ct. Rep. 665; Worden
v. Searls, 121 U.S. 27, 30 L. ed. 858, 7 Sup. Ct. Rep.
814; State v. Nathans, 49 S. C. 207, 27 S. E. 52. The
criminal sentences imposed in the civil case, therefore,
should be set aside.”
17
Furthermore, respondent Saul I. Ruman was not qualified to
represent the United States in a criminal contempt proceedings
notwithstanding his representations to the contrary. The Court
of Appeals for the Seventh Circuit so held in the case of Kienle
v. Jewel Tea Co. (7th Cir., 1955), 222 F. 2d 98.
A Void Order Cannot Be Enforced by Contempt Proceedings,
Either Criminal or Civil.
It will be observed that the District Court, in its order
of November 29, 1974, asserted that petitioner was barred from
questioning the validity of the September 12, 1974 order by
failing to appeal:
“Had counsel or his clients wished to appeal the order
of September 12, 1974 directing the completion of the
settlement previously represented to this court or the im-
position of the $120 sanction, counsel had his rights of
appeal but elected not to pursue them.”
By failing to appeal from that portion of the order requiring
him to pay $120 to opposing counsel, the lawyer for the railroad
had become a helpless victim of Saul I. Ruman’s avowed project
to silence him through disbarment or suspension. The Court
of Appeals, in affirming the District Court’s order and opinion,
stated:
“The order appealed from held Appellant Crumpacker,
hereinafter Appellant, in civil contempt of court for his
willful and deliberate failure and refusal to comply with
the order of the District Court made in this action in the
court below on September 12, 1974.” (App., p. A2.)
The record discloses that both the Court of Appeals and the
District Court are in error in their failure to observe the distinc-
tion between civil contempt proceedings and criminal contempt
proceedings. It is difficult to believe that both courts are un-
familiar with this court’s classic definitions in Gompers v. Buck’s
Stove and Range Co., supra.
18
The Court of Appeals avoided passing upon critical issues
raised by petitioner on the theory that he should have appealed
from all of the orders other than the one that suspended him
from the right to practice law:
“It is true that in Appellant’s opening brief he raised many
alleged issues on appeal. However, no appeal was taken
from any order other than the one of January 17, 1975,
so he cannot attack the earlier orders referred to in his al-
leged issues on appeal.” (App., p. A3.)
The Court of Appeals, again, is in error. It has been universally
held that, if an order or judgment is void for want of jurisdiction
(as pointed out with reference to the September 12, 1974 de-
cision), all efforts to enforce the order through contempt pro-
ceedings, either civil or criminal, are likewise void. United
States ex rel. Thomas v. Keokuk (1868), 6 Wall. 518, 18 L. ed.
918; Ex parte Rowland (1882), 104 U. S. 604, 26 L. ed. 861;
Ex parte Fisk (1884), 113 U. S. 713, 28 L. ed. 1117, 5 S. Ct.
724; Re Ayers (1887), 123 U. S. 443, 31 L. Ed. 216, 8 S. Ct.
164; Re Sawyer (1888), 124 U. S. 200, 31 L. Ed. 402, 8 S. Ct.
482; Ex parte Buskirk (1896, C. A. 4th), 72 F. 14; Ex parte
Robinson (1906, C. A. 9th) 144 F. 835; Lewis v. Peck (1907,
C. A. 7th Ill.), 154 F. 273, cert. den. 207 U. S. 593, 52 L. Ed.
355, 28 S. Ct. 258; Brougham v. Oceanic Stream Navigation
Co. (1913, C. A. 2d N. Y.), 205 F. 857; Abbott v. Eastern Mas-
sachusetts Street R. Co. (1927 C. A. 1st Mass.), 19 F. 2d 463;
Beauchamp Vv. United States (1935, C. A. 9th Cal.), 76 F. 2d
633; Russell v. United States (1936, C. A. 8th Minn.), 86 F. 2d
389; Graham v. United States (1938 C. A. 9th Cal.), 99 F. 2d
746; Western Fruit Growers, Inc. v. Gotfried (1943, C. A. 9th
Cal.), 136 F. 2d 98; United States vy. De Parcg (1947, C. A. 7th
Ill.), 164 F. 2d 124; Pueblo Trading Co. v. El Camino Irrig.
Dist. (1948, C. A. 9th Cal.), 169 F. 2d 312, cert. den. 335 U. S.
911, 93 L. Ed. 444, 69 S. Ct. 482; United States ex rel. White
v. Walsh (1949, C. A. 7th Ill.), 174 F. 2d 49; Evans v. Pack
(1878, C. C. Mich.), 2 Flipp 267, F. Cas. No. 4566; United
19
States v. Debs (1894, C. C. Ill.), 64 F. 724; Foot v. Buchanan
(1902, C. C. Miss.), 113 F. 156; American Lighting Co. Vv.
Public Service Corp. (1904, C. C. N. Y.), 134 F. 129; United
States v. Atchison T. & S. F. Ry. Co. (1905, C. C. Mo.), 142
F. 176; Brotherhood of R. & S. S. Clerks v. Texas & N. O. R.
Co. (1928, D. C. Tex.), 24 F. 2d 426, mod. on rei 25 F. 2d
876, affd (C. A. 5th) 33 F. 2d 13 which is effd 218 U. S. 548,
74 L. Ed. 1034, 50S. Ct. 427. See Re Swan (1893), 150 U. S.
637, 37 L. Ed. 1207, 14 S. Ct. 225.
Due Process Entitled the Railroad’s Counsel to a Trial
Before an Impartial Judge.
The record discloses that the railroad’s counsel, Owen W.
Crumpacker, scrupulously avoided any statement which could |
or might have been construed as a direct contempt of court under
either 18 U. S. C. § 401(1) (“misbehavior of any person in
its presence or so near thereto as to obstruct the administration
of justice.”) or the trial judge’s inherent power to punish any
offensive conduct which reflected upon the trial judge personally
or degraded or demeaned the dignity of the court. This was
acknowledged by Judge Eschbach, perhaps inadvertently, in his
comments of January 16, 1975:
“Really the only relevant comment directed to the purpose
of this hearing today has been Mr. Crumpacker’s state-
ment, and I am sure he believes it sincerely and honestly,
that he cannot comply with the order of this court because
it is not correct.” (App., p. A1l2.)
The record discloses that petitioner made a full, detailed, un-
contradicted disclosure of the facts and circumstances dem-
onstrating the perpetration of a vicious fraud on the court. In
so doing, he was discharging his primary obligation to the court
as an officer thereof. In addition to D. R. 7-102 of the Code
of Professional Responsibility (App., p. A23), D. R. 7-103
of the code made it mandatory upon him to report to Judge
Eschbach as he did. See also Precision Instrument Manufacturing
20
Co. V. Automotive M. M. Co., 324 U. S. 806, 89 L. Ed. 1381,
65 S. Ct. 993 (1945).
As heretofore shown, petitioner made full and complete re-
sponse, both orally and in writing, to each of the three rules to
show cause issued by the trial judge (August 29, 1974, October
25, 1974, and November 29, 1974). In each of the extensive
orders, and by the oral findings of September 12, 1974 finding
him guilty of misconduct, including misrepresenting the existence
of an investigation, the trial judge had conclusively determined
all possible facts in issue against petitioner and had fully dis-
closed undeniable prejudices against him.
By what manner or means could it be said that petitioner
would receive a fair and impartial trial on the vital issue as to
“why Owen W. Crumpacker, defense counsel herein, should
not be suspended from the practice of law in the United States
District Court for the Northern District of Indiana.” (App., p.
A21)
Petitioner served and filed a motion suggesting that Hon.
Jesse E. Eschbach disqualify himself pursuant to 28 U. S. C.
455. In his third paragraph of defense, filed on January 16,
1975, petitioner urged that the procedures determined upon by
the order of November 29, 1974 requiring him to appear and
show cause again on January 16, 1975 constituted a denial of
his rights and liberties as guaranteed by Amendment V of the
United States Constitution.
While we realize that the decision in Mayberry v. Pennsyl-
vania, supra, involved a contempt proceedings in the state court,
the reasoning is applicable to the case at bar. See also U. S. v.
Meyer (1972), 462 F. 2d 827.
The unpublished order of the Court of Appeals under date of
October 1, 1976 establishes a procedure repugnant to due process
and in direct conflict with Mayberry v. Pennsyivania (1971),
400 U. S. 455, 91 S. Ct. 499, 27 L. Ed. 532.
ad
21
Suspension from Practice in the United States District Court
for the Northern District of Indiana Constitutes a Violation
of Petitioner's Rights Under Amendment VIII of the Con-
stitution.
Petitioner has resided in the Northern District of Indiana all
of his life. He has practiced, actively, in the United States
District Court for the Northern District of Indiana since he was
admitted to the bar on January 4, 1939. This Court, since time
in memorial, has held that the conviction of a lawyer of con-
tempt of court (except in most unusual and aggravated cases)
cannot and does not constitute grounds for suspension or dis-
barment. Ex Parte Bradley, 74 U.S. (7 Wall.) 364 (1868) and
Ex Parte Robinson, 86 U.S. (19 Wall.) 505 (1873). Obviously,
nearly every ground for disbarment is in itself a contempt of
court. Nevertheless, suspension or disbarment from practice in
the court is exercised only “whenever it is satisfactorily estab-
lished that he (an attorney) is an unfit or unsafe person to enjoy
the privileges of ‘an attorney at law, or to manage the business
of others in that capacity.” Cordery, Law Relating to Solicitors,
183 (4 Ed. 1935). Congress, in adopting the Criminal Contempt
Act expressly prohibited Federal Courts from imposing punish-
ment other than “the fine of imprisonment, at its discretion” 18
U. S. C. § 401. The trial judge, in the presence of the news
media, singled out petitioner as the only lawyer ever found guilty
of contempt of court in the 13 years that he had occupied the
bench. (App. p. All) Petitioner's conduct was described as
such a “blatant, deliberate, willful challenge” to a court order
which was of such a nature that the court could not “continue
to discharge my oath and my responsibilities if I turn my back
on a known willful disobedience to a court order” called to the
attention of the court by counsel on the other side. (App. p.
Al12)
After four months of unremitting persecution, the trial judge,
in an effort to justify his conduct in remaining in the case, con-
cluded that it was “only a civil contempt proceedings”. Under
this theory, he was wholly disinterested in any activity other than
to assist one lawyer in his effort to collect a $120 debt from
another lawyer. Yet, the trial judge was the agency which created
the debt in the first place! Further, on the basis of the record
the trial judge abused his non-existent contempt power to force
a payment of an unconscionable fraudulent claim against the
railroad.
CONCLUSION.
By reason of the foregoing, petitioner respectfully submits
that the petition for a writ of certiorari should be granted and
that the judgment of the United States Court of Appeals for
the Seventh Circuit be reversed.
Respectfully submitted,
OwEN W. CRUMPACKER, Eso.,
Room 300,
Hammond Building,
$217 Hohman Avenue,
Hammond, Indiana 46320,
Attorney Pro Se.
THOMAS T. CRUMPACKER, Esq.,
Room 300,
Hammond Building,
5217 Hohman Avenue,
Hammond, Indiana 46320,
- Of Counsel.
APPENDIX
APPENDIX.
UNITED STATES COURT OF APPBALS
For the Seventh Circuit
Chicago, Illinois 60604
October 1, 1976
(Argued December 2, 1975)
Before
Hon. WiLBurR F. PELL, Jr., Circuit Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. Francis C. WHELAN, District Judge*
JosEPH MANCusO and SAUL I. RUMAN,>) Appeal from the United
Plaintiffs-A ppellees, States District Court
for the Northern
' District of Indiana
. 75-131 , ,
euchentinated ” . Hammond Division.
INDIANA HARBOR BELT RAILROAD
CoMPANY and OWEN W. CRUM-
PACKER, Jesse E. Eschbach,
‘ Defendants-Appellants. } Judge.
ORDER.
This is an appeal by Owen W. Crumpacker from the judgment
and order entered by the District Court for the Northern District
of Indiana on January 16, 1975. The appeal was noticed and
filed on February 28, 1975. In fact, the order appealed from was
formally filed by the District Court on January 17, 1975. Such
written order was made pursuant to and in accordance with the
conclusions announced orally from the bench on January 16,
1975.
* United States District Judge Francis C. Whelan of the Central
District of California is sitting by designation.
A2
The order appealed from held Appellant Crumpacker, herein-
after Appellant, in civil contempt of court for his willful and
deliberate failure and refusal to comply with the order of the
District Court made in this action in the court below on Septem-
ber 12, 1974. The order appealed from also ordered that
Appellant be and is hereby suspended from the practice of law in
the United States District Court for the Northern District of
Indiana until the date upon which he shall pay to the Clerk of the
Court for the use and benefit of Plaintiff's counsel the sum of
$240.00. Plaintiffs counsel is Saul I. Ruman. Such order further
ordered that the Clerk of the Court is directed to refuse to permit
Appellant or any agent or employee of Appellant to enter
appearances or file any action or pleadings in the United States
District Court for the Northern District of Indiana. The Clerk of
the Court was further ordered by such order to notify all Deputy
Clerks within the District to strike the name of Appellant from
any action in which he has appeared and to provide notice to the
parties for whom he has appeared that his appearance has been
stricken by order of court. Pursuant to the request of Appellant,
the District Court stayed execution and implementation of the
order of suspension pending appeal of the decision by the United
States Court of Appeals for the Seventh Circuit, provided that
such appeal be taken as provided by law.
Thus, it appears that Indiana Harbor Belt Railroad Company
as such has no interest in this appeal.
The only issues on this appeal are whether the order of the
District Court of January 16, 1975, was valid and whether the
district judge erred in not disqualifying himself from hearing the
question as to whether Appellant was in contempt of the Court’s
order of September 12, 1974. The latter order ordered Appellant
to pay to Saul I. Ruman the sum of $120.00 for the latter’s
services rendered Plaintiff Mancuso in securing the payment of
the money settlement theretofore agreed upon between Plain-
tiff Mancuso and Defendant Indiana Harbor Belt Railroad
Company.
A3
It is true that in Appellant’s opening brief he raised many
alleged issues on appeal. However, no appeal was taken from
any order other than the one of January 17, 1975, so he cannot
attack the earlier orders referred to in his alleged issues on appeal.
It appears from the record in the court below that the jury
trial of the action between Plaintiff Mancuso and Indiana Harbor
Belt Railroad Company was in progress and that witnesses had
been called and testified. Near the end of the second day of trial,
on July 18, 1974, the trial judge was advised by counsel for
Plaintiff and Defendant (Saul I. Ruman and Owen W. Crum-
packer, respectively) that the action had been settled between
Plaintiff Mancuso and Defendant Indiana Harbor Belt Railroad
Company. Thereupon the jury was told of the settlement and
discharged by the trial court.
Thereafter, Plaintiff Mancuso, through his counsel Saul I.
Ruman, brought on for hearing before the District Court a
motion for the completion of the settlement of the action as
agreed upon. At the hearing on September 12, 1974, the court
made its order ordering that for every day after September 20,
1974, that the amount of the agreed upon settlement had not
been paid by the Defendant Railroad to Plaintiff Mancuso, the
Defendant Railroad would be fined $1,000.00. In addition, and
as a sanction, Appellant was ordered by the court to pay to
Saul I. Ruman the sum of $120.00 for services rendered by him
for Plaintiff in attempting to complete the settlement. The
District Court found that such services w re made necessary only
because of the willful and unreasonable failure of Appellant to
effectuate the settlement. The amount agreed upon by the parties
on July 18, 1974, was paid by Defendant Railroad before any
sanctions became payable by it. However, Appellant has at all
times failed to pay the amount, or any part thereof, that he was
ordered to pay to Saul I. Ruman.
After being advised by Ruman that Appellant had not paid the
$120.00, or any part thereof, the trial court on October 25, 1974,
made an order which stated that an order to show cause will
As
issue against Owen W. Crumpacker ordering him to show cause
why further sanctions should not be imposed against him if he
continues to fail to pay the amount ordered by the trial court to
be paid to Ruman. Appellant filed a response to such order and
among other things requested the court to cause the matter to be
reassigned to another district judge. On November 26, 1974, the
trial court issued an order to show cause to Owen W. Crum-
packer requiring him to show cause why he should not be
suspended from the practice of law in the United States District
Court for the Northern District of Indiana until such time as he
complied with the order requiring him to pay $120.00 to Saul I.
Ruman. The trial court denied Appellant's request that the case
be reassigned to some other judge and stated in so doing that the
hearing on the order to show cause would be concerned only
with the enforcement of the trial court’s own order. The order to
show cause was set for hearing on January 16, 1975, and
Appellant was advised that if he had paid the $120.00 by
January 2, 1975, the hearing would not take place.
We first consider Appellant’s contention that the trial judge
should have disqualified himself. Such contention is without merit
for the reason that the order to show cause is concerned with a
proceeding in re civil contempt and not with criminal contempt.
Appellant errs in contending that proceeding was otherwise. The
very words of the order to show cause make very clear that if
Appellant complied with the order of September 12, 1974, there
would be no further proceedings.
With respect to Appellant’s contention that the trial court had
no jurisdiction to entertain the matter resulting in the order of
court of January 17, 1975, and that the order of January 17,
1975, was not a valid order, Appellant again errs. The proceed-
ing was a proceeding to enforce the valid order for sanctions of
September 12, 1974, issued by the trial court. The trial court
had complete authority to impose sanctions upon Appellant as
the attorney for the Defendant who had failed to comply with his
obligation to effectuate the settlement agreed upon. The fact that
AS
Appellant was not a party to the action but only the attorney for
the Defendant did not destroy the power of the court to make an
ancillary order for sanctions against him. The amount imposed
as sanctions was indeed very reasonable.
The order of September 12, 1974, was not appealed from.
The contempt proceeding herein did not reopen for consideration
the legal or factual basis for the order of September 12, 1974.
Maggio v. Zeitz, 333 U. S. 56, 69 (1947). The court had
unquestioned jurisdiction to make its order of January 17, 1975,
and it was a valid order. Appellant could have by mere com-
pliance with the order of September 12, 1974, completely
avoided any further sanctions. The sanctions imposed by the
order of January 17, 1975, to wit, suspension from practice in
the Northern District of Indiana until such time as Appellant
paid a total of $240.00 to Ruman is a reasonable sanction. The
court in the latter order ordered Appellant to pay an additional
amount of $120.00 to Ruman to compensate Ruman for his
legal services rendered in connection with the hearing on
January 16, 1975. This additional amount imposed as sanctions
by the court is likewise merited and very reasonable in its nature.
A fine imposed for civil contempt which compensates the party
injured by the refusal of the opposing party to obey a lawful
court order is proper. Compensation may take the form of
attorney’s fees. Nostrom v. Wahl, 41 F. 2d 910 (7th Cir. 1930).
The orders of the court concerning Appellant should therefore
be affirmed.
During oral argument Attorney Ruman suggested that it
would be appropriate for this court to award him another
$500.00 because of additional work in connection with the
appeal. We decline to take any action on this request. Costs
of appeal, of course, will be awarded to the appellee.
AFFIRMED.
A6 mari AT
UNITED STATES COURT OF APPEALS SUPREME COURT OF THE UNITED STATES
For the Seventh Circuit |
Chicago, Illinois 60604 | No. A-582
November 1, 1976
Before | OWEN CRUMPACKER, nae
Hon. Witpur F. PELL, JR., Circuit Judge | a —
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANCIS C. WHELAN, District Judge* : SAUL I. RUMAN, ET AL.
|
JosEPH MANCUuSO and yA from the United |
SauL I. RuMAN, = District Court |
Plaintiffs-A ppellees, for the Northern | ORDER FURTHER EXTENDING TIME TO FILE
District of Indiana, | PETITION FOR WRIT OF CERTIORARI
No. 75-1313 vs. Hammond Division : ; ae a.
‘ ‘ | Upon Consideration of the application of counsel for peti-
INDIANA HARBOR BELT RAILROAD a tioner,
ComPany and OWEN W. CrUM- Jesse E. Eschbach, | IT IS ORDERED that the time for filing a petition for writ of
PACKER ) ae © ; ,
, Judge certiorari in the above-entitled cause be, and the same is
a ate cie tamale | hereby, further extended to and including February 22, 1977.
On consideration of the petition for rehearing in the above- | /s/ JOHN PAUL STEVENS
the members of the panel having voted to deny a rehearing, | Associate Justice of the Supreme
IT Is ORDERED that the petition for a rehearing in the above- | Court of the United States.
entitled cause be and the same is hereby DENIED. | Dated this 3rd day of February, 1977.
* United States District Judge Francis C. Whelan of the Central
District of California is sitting by designation.
A8
IN THE UNITED STATES DisTRICT COURT
For the Northern District of Indiana
Hammond Division
JosEPH MANCUSO, .
Plaintiff,
vs.
> Civil No. 72 H 63(2)
INDIANA HARBOR BELT RAILROAD
COMPANY,
Defendant. ?
ORDER
Pursuant to prior order of this court entered November 26,
1974, a hearing was held in open court at 12 noon on January
16, 1975. Plaintiff was present by counsel, Saul I. Ruman, Esq.,
and defense counsel Owen W. Crumpacker, Esq., was personally
present.
To avoid the necessity of repeating the reasons and purposes
for the hearing, this court now incorporates herein by reference
the prior orders of August 29, 1974, September 12, 1974,
October 25, 1974, and November 26, 1974. Transcripts of the
hearings held in regard to this matter are also incorporated
herein by reference, said hearings having been held on Septem-
ber 12, 1974 and January 16, 1975.
At the conclusion of the hearing on September 12, 1974,
this court imposed a sanction on defense counsel Owen W. Crum-
packer in the amount of one hundred twenty dollars ($120)
which was to be paid to plaintiff's counsel. This was in reim-
bursement for three hours of time which plaintiffs counsel
had been required to expend needlessly and without reason by
virtue of the conduct of the said Owen W. Crumpacker which
was directly contradictory to representations made by the said
AY
Owen W. Crumpacker and plaintiff's counsel to this court during
the trial of this cause. No appeal was ever taken from this
court’s order of September 12, 1974 imposing the sanction.
However, defense counsel wilfully and deliberately failed and
refused to comply with this court’s order of September 12,
1974, and as a result thereof and following a full hearing on
January 16, 1975, this court found defense counsel guilty of
a civil contempt. This court further, on January 16, 1975,
imposed an additional one hundred twenty dollars ($120)
sanction against the said Owen W. Crumpacker by reason of
three additional hours of time which plaintiff's counsel had been
required to expend needlessly and without reason by virtue of
the failure of Owen W. Crumpacker, Esq., to comply with this
court’s order of September 12, 1974. The findings and conclu-
sions in support of the conclusion that defense counsel was
in civil contempt of this court are contained in the remarks made
from the bench by the undersigned judge of this court on Janu-
ary 16, 1975. As a result of the sanction imposed on Scptem-
ber 12, 1974 and the additional separate sanction imposed
on January 16, 1975, defense counsel Owen W. Crumpacker is
obligated, pursuant to the orders of this court, to pay to the
clerk of this court for the use and benefit of plaintiffs counsel
the total sum of two hundred forty dollars ($240).
As previously noted, this court, on January 16, 1975, an-
nounced from the bench that Owen W. Crumpacker was in civil
contempt of this court for his wilful and deliberate failure and
refusal to comply with the order of this court, which order
had never been appealed. This court concluded that by way of
a remedial sanction to enforce compliance with this court’s
order, Owen W. Crumpacker should be suspended from the
practice of law in the United States District Court for the
Northern District of Indiana until he complies with the order
of this court. This sanction is in no way intended as punishment
since no criminal contempt is here involved, but is intended
only to enforce compliance with an order of this court.
Al0
Accordingly and pursuant to the conclusions announced from
the bench on January 16, 1975, this court finds Owen W. Crum-
packer in civil contempt of this court for his “wilful and
deliberate failure and refusal to comply with an order” of this
court; and it is further the order of this court that Owen W.
Crumpacker be and “he is hereby suspended from the practice
of law in the United States District Court for the Northern
District of Indiana until the date upon which he shall pay to
the clerk of this court for the use and benefit of plaintiffs
counsel the sum of two hunderd forty dollars ($240). The
clerk of this court is directed to refuse to permit Owen W.
Crumpacker or any employee or agent of Owen W. Crumpacker
to enter appearance or file any action or pleading in the United
States District Court for the Northern District of Indiana.
And the clerk of this court is further ordered and directed to
notify the deputy clerks in each of the divisional or area offices
of this court to strike the name of Owen W. Crumpacker
from any action in which he has appeared and to provide notice
to the parties for whom he has appeared that his appearance has
been stricken by order of court and that the parties for whom
he has appeared have twenty (20) days in which to obtain new
counsel. Provided, however, that upon the request of Owen W.
Crumpacker, Esq., made in open court on January 16, 1975,
execution and implementation of this order of suspension is
stayed pending appeal to and decision by the United States
Court of Appeals for the Seventh Circuit. Provided further that
in the event no appeal is taken as provided by law, then and in
that event upon the expiration of the time provided for appeal
and if there has been no compliance with the orders of this
court, this order shall be executed and implemented immedi-
ately. Otherwise, execution and implementation of such order
shall await the decision and mandate of the United States Court
of Appeals for the Seventh Circuit.
Entered this 17th day of January, 1975.
/s/ JessE E. Escupacu
United States District Judge
ee ee neon A hee ote
at ST oe
—s
All
EXCERPTS OF JUDGE ESCHBACH’S REMARKS ON
JANUARY 16, 1975.
Now if we get to the area where an lawyer contends he
has the right to tell a client to wilfully disobey an order of the
Court, until that order is vacated or reversed, then Counsel does
not have that power.
Now mention has been made of the disciplinary commission
matter and that I referred to it at some one or more times during
this proceeding, and I think essentially that is correct, but let me
point out, Gentlemen, that I think a pleading or something was
filed, perhaps it was a brief, it is my best recollection that it was
a pleading or a response filed by Mr. Ruman, he pointed out that
part of the problems in obtaining discovery and so on with
Mr. Crumpacker’s client was that there was this disciplinary
matter pending. It was obvious that in the problems the
attorneys were having in endeavoring to make appropriate dis-
covery that the personal animosity between counsel unfortu-
nately was interfering with the discovery process anticipated by
the Federal Rules of Civil Procedure. In an effort to put that
outside of this case so we could address ourselves to the merits of
this case, I pointed out that this disciplinary proceeding, this ill-
feeling between counsel must be eliminated from the considera-
tion of this case, and that Counsel must proceed in cooperation
with the Court in good faith, and to comply with the Federal
Rules of Civil Procedure and the discovery procedures therein
contained, and I think that as the trial judge that was my
responsibility.
Gentlemen, as I have said, I have been a Federal Judge for
almost 13 years. In 13 years I not only have never found a
lawyer in contempt of court, I have never even threatened to find
a lawyer in contempt of Court, and I had hoped I never would.
Unfortunately, this blatant, deliberate, wilful challenge to what
I believe to be a valid order to pay $120 in attorney fees cannot
go unnoticed. I would much prefer to spend this time in ruling
Al2
on motions, on trying cases than to be in here on this kind of a
matter, but how can I continue to discharge my oath and my
responsibilities if I turn my back on a known wilful disobedience
to a court order, called to the attention of the Court by
Counsel on the other side after at least two complete full blown
hearings having been held, and every opportunity that I could
dream of has been presented to each side to present anything he
wishes before me. I don’t know what I sincerely could do. (Our
emphasis.)
Mr. Crumpacker has made reference to the integrity of the
tribunal and the judicial process, and has implied that in some
way I abuse that because I am proceeding to enforce my own
order. If this was a separate criminal contempt matter, Mr.
Crumpacker, even though I honestly believe there is no question
regarding my impartiality, I would never the less promptly dis-
qualify myself upon your mere suggestion, but because this is an
order which I have entered in a case over which I have proper
jurisdiction, which order was entered after a full hearing and
which order was not appealed, I believe I have to retain the
jurisdiction to enforce my own order; and, Gentlemen, I will
do so.
It is more than six months, I believe, since the trial. Mr.
Crumpacker has made and brought assertions and I listened to
them in open Court concerning perjury and fraud in the evidence
presented at trial by the Plaintiff, yet to this date other than the
broad assertions not'.ing has ever been presented of a substantive
evidentiary nature to support those allegations. It was not
my disinterest in fraud that I proceeded to determine that your
representations were a sham, it was because there was nothing to
hack them up, nothing that I could find that was presented to me
to support them. Really the only relevant comment directed to
the purpose of this hearing today has been Mr. Crumpacker’s
Statement, and I am sure he believes it sincerely and honestly,
that he cannot comply with the order of this Court because it is
not correct.
eee eee ey
Al3
You Gentlemen know, as any lawyer or judge knows, we are
all human. I have erred as a trial Judge, never intentionally but
I have erred. I have been reversed as a trial judge, and properly
so. That is why we have Courts of Appeal, but in this case I feel
strongly, I feel firmly that I have been fair and I have discharged
my responsibilities honorably. I am sick that it is necessary to
hold this hearing. In my order I gave Mr. Crumpacker the
opportunity to pay the $120 to the Clerk of the Court at any
time on or before January 22 and I wouldn’t even hear this
matter. Quite frankly, Gentlemen, I almost prayed thoi Mr.
Crumpacker would pay the $120 but he chose not to do so and
to continue his wilful defiance of the order of this Court.
Now I don’t want further argument, Gentlemen. I gave you
both unlimited opportunity. I want to ask you, Mr. Crum-
packer, and all I want is an answer of “yes” or “no,” sir, will
you pay the $120? (Our emphasis.)
Al4
IN THE UNITED STATES DisTRICT COURT
For the Northern District of Indiana
Hammond Division
JOSEPH MANCUSO, a
Plaintiff,
vs.
> Civil No. 72 H 63(2)
INDIANA HARBOR BELT
RAILROAD COMPANY,
Defendant. J
MOTION TO COMPEL
COMPLETION OF SETTLEMENT
Comes now the plaintiff, by counsel, and shows the Court
as follows:
1. That while this trial was in process, the Court was informed
of a settlement between the parties in the sum of Thirty Five
Thousand ($35,000.00) Dollars on the 18th day of July, 1974,
over one month ago.
2. Based upon said settlement the plaintiff agreed to with-
drawal of submission of the case and the Court discharged the
jury.
3. That following the said settlement the plaintiff has con-
tinuously tried to complete the settlement, and, has contacted
the Indiana Harbor Belt on numerous occassions and attempted
to contact the Indiana Harbor Belt’s attorney, Owen Crumpacker,
who has not returned the telephone calls.
4. That the Indiana Harbor Belt has just informed me that
they cannot complete the settlement without my contacting Owen
W. Crumpacker.
5. I have made three calls to Mr. Crumpacker’s office, while
he was in the office. My secretary was told by his secretary that
he would return the calls, which has not been done.
ee eee eee ee a
ee Orns Cate eens tent SB ee
Al5
6. That plaintiff cannot complete the settlement without
action by the Court to assist the process of settlement.
7. That as a result of the defendants delay in settlement,
plaintiffs attorney has put in additional time.
WHEREFORE, plaintiff prays that this Court set a hearing
at which time defendant would be ordered to produce the check
in full settlemeat of the case and that the defendant prepare
a release (plaintiff has already submitted dismissals which may
be filed upon completion of the settlement), and, that defendant
be ordered to pay attorney fees and additional costs made neces-
sary by the failure of said defendant to complete the settlement
and for all other proper relief.
/s/ SAUL I. RUMAN
Saul I. Ruman
5261 Hohman Avenue
Hammond, Indiana 46320
933-7600 (219)
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I certify that on the 27th day of August 1974, service of a
true and complete copy of the above and foregoing pleading or
paper was made upon each party or attorney of record herein
by depositing the same in the United States mail in envelopes
properly addressed to each of them and with sufficient first
class postage affixed.
By: /s/ SAUL I. RUMAN
Saul I. Ruman
Attorney at law
jf
71-196-B/H
8-27-74
-<4
Al6
IN THE UNITED STATES DISTRICT COURT
For the Northern District of Indiana
Fort Wayne Division
JOSEPH MANCUSO, .
Plaintiff,
vs.
> Civil No. 72 H 63(2)
INDIANA HARBOR BELT
RAILROAD COMPANY,
Defendant. -
ORDER
On August 28, 1974, counsel for the plaintiff herein filed a
motion with this court seeking an order of this court compelling
the defendant to complete a settlement arrangement of this
matter which the attorneys of record for both sides represented
to this court had been agreed upon during trial of this action.
It is unfortunate indeed if the allegations in the motion are true
and defense counsel, through his conduct, prevents the comple-
tion of a settlement which he himself represented to this court
during trial had been made. This matter is of such serious
proportions that this court deems a prompt hearing to be
essential, not only to require completion of the settlement but
to determine the nature of the midconduct, if any, of counsel
and the appropriate penalties therefor. During the meeting in
chambers when the attorneys for both sides represented to this
court that the settlement had been made and the jury could be
discharged, there was also personally present a claim agent for
the defendant railroad who made like representations to this
court. Counsel for the defendant is ordered and directed to have
said claim agent personally present for the hearing at the date,
time, and place hereinafter established.
Al7
Accordingly, this court will conduct a hearing at 12 noon
on Thursday, September 12, 1974 in the second floor courtroom
in the Federal Building in Hammond, Indiana.
/s/ Jesse E. ESCHBACH
United States District Judge
EXCERPTS OF JUDGE ESCHBACH’S DECISION OF
SEPTEMBER 12, 1974
The Court: Gentlemen, this Court finds:
That it has been almost sixty days since the attorneys here
assembled represented to the Judge of this Court, both in open
court and in my chambers, that this matter had been settled;
That Counsel for the Defendant has deliberately held up that
settlement without coming to this Court with any report, or any
motion to withhold settlement, or to indicate that an investigation
was under way. As a matter of faci, I am inclined to believe
that no such investigation was under way, and that it is a sham
put upon this Court by Defense Counsel, Owen W. Crumpacker,
to warrant the delay of this settlement.
I direct that by or before September 20, 1974, Mr. Crum-
packer pay to Mr. Saul I. Ruman the sum of one hundred twenty
dollars for three hours of time needlessly consumed in pursuing
a settlement which both attorneys had represented to this court
had been made.
I also direct Mr. Patno to advise his employer, the Indiana
Harbor Belt Railroad, that if this settlement is not concluded
by or before September 19, 1974, I will assess, commencing
September 20, 1974, a penalty of one thousand dollars per day
for each and every day thereafter that settlement is delayed.
If there are any matters of a criminal investigation involved
in regard to either side, take that to the proper law enforcement
officers, be it the FBI or the United States Attorney. (Our em-
phasis. )
Al8
. Gentlemen, that is the Order of this Court and, believe me,
I will pursue it.
Court is in recess.
(Court recessed at 11:58 a.m.)
Al9
IN THE UNITED STATES DisTRICT CouRT
For the Northern District of Indiana
Hammond Division
JOsEPH MANCUSO, 7
Plaintiff,
VS.
> Civil No. 72 H 63(2)
INDIANA HARBOR BELT
RAILROAD COMPANY,
Defendant. |
ORDER
On August 28, 1974, counsel for the plaintiff herein filed
a motion with this court seeking an order of this court com-
pelling the defendant to complete a settlement of this cause.
On July 18, 1974, during a jury trial of this cause and near
the end of the second day thereof, Saul I. Ruman, counsel for
the plaintiff, and Owen W. Crumpacker, counsel for the defend-
ant, along with a claim agent for the defendant, came to the
chambers of the undersigned judge of this court and reported
that this cause has been settled for $35,000. Counsel repre-
sented that the settlement was absolute, that there were no
conditions, and that the settlement would be complete upon the
exchange of a check and release or dismissal. In response to
the motion of August 28, 1974, this court conducted a hearing
in Hammond, Indiana, on September 12, 1974, at which time
this court heard evidence and the argument of counsel on both
sides. At the conclusion of that hearing, this court directed the
defendant to complete the settlement as represented and that
upon its failure to do so by a date certain, this court would
impose a sanction on the defendant. This direction was given
orally from the bench at the conclusion of the hearing and in
A20
the presence of counsel for both sides and the claim agent for
the defendant. The defendant railroad fully complied with
that order of this court, and the settlement was concluded.
However, in the motion of August 28 and at the hearing on
September 12, plaintiffs counsel sought a sanction against
defense counsel. Plaintiff's counsel sought payment of the
additional time and expense incurred by plaintiff's counsel by
reason of the conduct of defense counsel in blocking the
settlement which he had represented to this court had been
effected. At the hearing on September 12, plaintiff's counsel
represented that he had spent approximately three additional
hours of time in the preparation of the motions and the at-
tendance at the hearing. Plaintiff's counsel further represented
his usual time rate, and this court then directed that defend-
ant’s counsel pay to plaintiff's counsel the amount of one
hundred twenty dollars ($120) as a sanction for his wilful and
unreasonable failure to conclude the settlement which he had
represented to this court had been made. The amount of that
sanction was determined by applying the three hours additional
time required of plaintiffs counsel to a time rate of forty
dollars ($40) per hour. Such sanction was to be paid to plain-
tiffs counsel by September 20, 1974.
On October 17, 1974, counsel for the plaintiff filed a report
and showing with this court alleging that the sanction of $120
as additional attorneys fees had not been paid by defense
counsel, Owen W. Crumpacker. Plaintiff's counsel further al-
leged that such failure was “intentional with malice.” Plain-
tiffs counsel sought an order to show cause, enforcement of
sanctions by removing Owen W. Crumpacker from “practice in
the United States District Court,” and punitive damages in the
amount of ten thousand dollars ($10,000). On October 25,
1974, this court entered an order directing defense ccunsel
Owen W. Crumpacker to show cause why sanctions should not
be imposed for his alleged failure to comply with the prior
orders and sanctions of this court. Such showing was to be
made in the office of the clerk of this court on or before Novem-
es nee ON WA tae,
A21
ber 19, 1974. On November 19, 1974, defense counsel Owen
W. Crumpacker filed a response to the order to show cause.
In such respunse, defense counsel alleged that the sanction was
void and of no effect and that the sanction had been imposed
without invoking the jurisdiction of this federal court. Counsel
Owen W. Crumpacker further alleged that plaintiff's counsel had
not in fact been compelled to incur additional time and expense
in obtaining the fulfillment of the settlement agreement. De-
fense counsel again brought before this court all of his argument
made in open court on September 12, 1974. Defense counsel
sought an order of this court denying all of the relief sought in
the Report filed October 17, 1974 by plaintiff's counsel. Defense
counsel also sought an order by the undersigned judge of this
court referring this matter “to a judge outside of the district.”
In regard to the request for reference to a different judge, it
must be noted that this cause has since its inception been as-
signed to the undersigned judge of this court and that all the
post-trial proceedings, including the hearing on September 12,
1974, were before the undersigned and that the sanctions imposed
were sanctions imposed by the undersigned judge of this court.
Accordingly, it is the duty of the undersigned judge of this
court to continue in this matter pursuant to the pleadings filed
by plaintiff's counsel and to take such action and make such
determinations as are required by the law and the facts and by
counsel’s conduct herein. The reincorporation of counsel’s argu-
ment of September 12 adds nothing to be vonsidered at this
late date in this matter. Had counsel or his clients wished to ap-
peal the order of September 12, 1974 directing the completion
of the settlement previously represented to this court or the
imposition of the $120 sanction, counsel had his rights of appeal
but elected to pursue them.
Accordingly, this court will conduct a hearing at 12 noon
in the United States District Court Room on the second floor
of the Federal Building in Hammond, Indiana, on January 16,
1975, as to why Owen W. Crumpacker, defense counsel herein,
A22
‘should not be suspended from the practice of law in the United
‘States District Court for the Northern District of Indiana until
such time as the $120 sanction previously assessed against
counsel is paid. Provided, however, that if such sanction of
one hundred twenty dollars ($120) is paid into the office of
the clerk of this court in Hammond, Indiana, by said Owen W.
Crumpacker on or before January 2, 1975, then and in that
event such payment shall constitute complete response to this
order, and the hearing hereinbefore set shall not be held.
Entered this 26th day of November, 1974.
/s/ JEssE E. ESCHBACH
United States District Judge
ee
A23
CONSTITUTION
AMENDMENT V— CAPITAL CRIMES; DOUBLE JEOP-
ARDY; SELF-INCRIMINATION; DUE PROCESS; JUST
COMPENSATION FOR PROPERTY
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or
public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be
compelled in any criminal case to be a witness against himself,
“nor be deprived of life, liberty, or property without due process
of law; nor shall private property be taken for public use, without
just compensation.”
AMENDMENT VIII—EXCESSIVE BAIL, FINES
PUNISHMENTS
Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.
RULES OF THE SUPREME COURT OF INDIANA
ADMISSION AND DISCIPLINE RULE 23
DR 7-102 Representing a Client Within the Bounds of the
Law.
(B) A lawyer who receives information clearly establish-
ing that:
* * * * *
... (2) A person other than his client has perpetrated a
fraud upon a tribunal shall promptly reveal the fraud to
the tribunal.
A24
TITLE 18 U. S. C. CHAPTER 21—CONTEMPTS
§ 401. Power of Court.
A court of the United States shall have power to punish by fine
or imprisonment, at its discretion, such contempt of its authority,
and none other, as—
(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transac-
tions;
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command. June 25, 1948, c. 645, 62
Stat. 701.
§ 402. Contempts Constituting Crimes
Any person, corporation or association willfully disobeying
any lawful writ, process, order, rule, decree, or command of any
district court of the United States or any court of the District of
Columbia, by doing any act or thing therein, or thereby forbid-
den, if the act or thing so done by of such character as to con-
stitute also a criminal offense under any statute of the United
States or under the laws of any State in which the act was com-
mitted, shall be prosecuted for such contempt as provided in
section 3691 of this title and shall be punished by fine or
imprisonment, or both.
Such fine shall be paid to the United States or to the com-
plainant or other party injured by the act constituting the con-
tempt, or may, where more than one is so damaged, be divided
or apportioned among them as the court may direct, but in
no case shall the fine to be paid to the United States exceed,
in case the accused is a natural person, the sum of $1,000, nor
shall such imprisonment exceed the term of six months.
A25
This section shall not be construed to relate to contempts com-
mitted in the presence of the court, or so near thereto as to
obstruct the administration of justice, nor to contempts committed
in disobedience of any lawful writ, process, order, rule, decree,
or command entered in any suit or action brought or prosecuted
in the name of, or on behalf of, the United States, but the same,
and all other cases of contempt not specifically embraced in this
section may be punished in conformity to the prevailing usages
at law. June 25, 1948, c. 645, 62 Stat. 701; May 24, 1949,
c. 139, § 8(c), 63 Stat. 90.
A26
FEDERAL RULES OF CRIMINAL
PROCEDURE (TITLE 18)
Rule 42. Criminal Contempt
(a) Summary Disposition. A criminal contempt may be
punished summarily if the judge certifies that he saw or heard
the conduct constituting the contempt and that it was com-
mitted in the actual presence of the court. The order of con-
tempt shall recite the facts and shall be signed by the judge
and entered of record.
(b) Disposition Upon Notice and Hearing. A criminal con-
tempt except as provided in subdivision (a) of this rule shall be
prosecuted on notice. The notice shall state the time and place
of hearing, allowing a reasonable time for the preparation of the
defense, and shall state the essential facts constituting the crim-
inal contempt charged and describe it as such. The notice shall
be given orally by the judge in open court in the presence of
the defendant or, on application of the United States attorney or
of an attorney appointed by the court for that purpose, by an
order to show cause or an order of arrest. The defendant is
entitled to a trial by jury in any case in which an act of Congress
so provides. He is entitled to admission to bail as provided in
these rules. If the contempt charged involves disrespect to or
criticism of a judge, that judge is disqualified from presiding
at the trial or hearing except with the defendant’s consent.
Upon a verdict or finding of guilt the court shall enter an order
fixing the punishment.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.