Opposition — O'Brien v. Pennsylvania

IN THE

SUPREME COURT OF THE UNITED STATES|_ MICHAEL RODAK, JR., CLERK

OCTOBER TERM, 1977

NO” 1106

JAMES T. O'BRIEN,

PETITIONER

V.

COMMONWEALTH OF PENNSYLVANIA,

RESPONDENT

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

GAELE McLAUGHLIN BARTHOLD

Assistant District ATTORNEY

STEVEN H. GOLDBLATT

Deputy District Attorney For Law

EDWARD G. RENDELL

District ATTORNEY

2400 Centre Sauare West

PHILADELPHIA, PENNSYLVANIA 19192

CounTER STATEMENT OF THE QUESTION PRESENTED

CounTeR STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

A RECALCITRANT WITNESS, WHO IS ORDERED TO

TESTIFY BEFORE A STATE INVESTIGATING GRAND

JURY, MAY BE SUMMARILY CITED FOR DIRECT

CRIMINAL CONTEMPT. NO CONSTITUTIONAL

QUESTION IS PRESENTED BY THE USE OF THAT

PROCEDURE IN THIS CASE.

ConCLUSION

ll

- TABLE OF CITATIONS

PAGE

FEDERAL CASES:

Brown v. Unitep States, 359 U.S. 41 (1959) 6, 7

Cooxe v. United States, 267 U.S. 517 (1925) 7

Gropp: v. Lestie, 404 U.S. 496 (1972) 7, 8

Harris v. Unitep States, 382 U.S. 162 (1965) 5-10

In RE GRAND JurY INVESTIGATION (Bruno), 545

F.2p 385 (3p Cir. 1976) 10

In RE Ottver, 333 U.S, 257 (1948) 7

In re SADIN, 509 F,2n 1252 (2p Cir. 1975) 10

Tayior v. Hayes, 418 U.S. 488 (1974) 8

Unitep States v. Acter, 482 F.2p 1016 (9TH Cir.

1973) 10

UniteD States v. Witson, 421 U.S. 309 (1975) 5, 8

PENNSYLVANIA CASES:

COMMONWEALTH EX REL. CameLoT Detective Acency, Inc.

v. Specter, 451 Pa. 370 (1973) 9

COMMONWEALTH V. AFricA, 466 Pa. 603 (1976) 5

ComMONWEALTH V. McCLoskey, 443 Pa, 117 (1971) 9

CoMMONWEALTH V. Patterson, 452 Pa, 457 (1973) 4

In Re: NovemBer, 1975 Spectat INVESTIGATING

Grand Jury; Appeat oF James T. O’Brien,

__ Pa. __, 379 A.2p 1313 (1977), REHEARING

DENIED DecemBer 15, 1977 3, 9

TABLE OF CITATIONS (conTinueD)

STATUTES AND RuLes:

Fep. Ruce Cr. Proc. 42(a), 18 U.S.C.A,

Fep. Ruce Cr. Proc, 42(B), 18 U.S.C.A.

U.S. Sup. Cr. Ruce 23(F), 28 U.S.C.A.

Act oF June 16, 1836, P.L. 784, $23; 17 P.S,

$2041

Act oF June 16, 1836, P.L. 784, §24; 17 PS.

§2042

Act oF June 23, 1931, P.L. 925, $1; 17 P.S.

$2047

REASONS FOR DENYING THE WRIT

A RECALCITRANT WITNESS, WHO IS ORDERED TO TESTIFY

BEFORE A STATE INVESTIGATING GRAND JURY, MAY BE

SUMMARILY CITED FOR DIRECT CRIMINAL CONTEMPT,

NO CONSTITUTIONAL QUESTION IS PRESENTED BY THE

USE OF THAT PROCEDURE IN THIS CASE,

PETITIONER, JAMES T. O’BRIEN, SEEKS REVIEW BY THIS

CouRT OF THE PENNSYLVANIA SuPREME CourT ORDER UPHOLDING

HIS SUMMARY CONVICTION FOR DIRECT CRIMINAL CONTEMPT OF

court. IN HIS FORMULATION OF THIS REQUEST, PETITIONER |

1 :

THE DISTINCTION, IN PENNSYLVANIA, BR]NEEN DIRECT AND

INDIRECT CRIMINAL CONTEMPT IS THAT “A DIRECT CRIMINAL

CONTEMPT CONSISTS OF MISCONDUCT OF A PERSON IN THE

PRESENCE OF THE COURT, OR SO NEAR,THERETO AS TO INTER-

ERE WITH 175. I nile SINESS.”

73); EE

rT T u7 | se 6 f° Bact +L, 784

AUTHORITY PERMITTING SUSAR TIONS, ARISING

OUT OF SUCH ACTIONS, IS ms Aen. 0 WHICH PROVIDES:

THE POWER OF THE SEVERAL COURTS OF THIS

COMMONWEALTH TO ISSUE ATTACHMENTS AND TO

INFLICT SUMMARY PUNISHMENTS FOR CONTEMPTS

OF COURT SHALL BE RESTRICTED TO THE FOLLOWING

CASES, TO-WIT:

I, TO THE OFFICIAL MISCONDUCT OF THE

OFFICERS OF SUCH COURTS RESPECTIVELY;

I]. TO DISOBEDIENCE OR NEGLECT BY OFFICERS,

PARTIES, JURORS OR WITNESSES OF OR TO THE LAW-

FUL PROCESS OF THE COURT;

I1], To THE MISBEHAVIOR OF ANY PERSON IN THE

PRESENCE OF THE COURT, THEREBY OBSTRUCTING

THE ADMINISTRATION OF JUSTICE,

FOOTNOTE CONTINUED ON NEXT PAGE.

4

ACKNOWLEDGES THAT SUMMARY CONTEMPT PROCEDURES ARE NOT

BARRED BY THE CONSTITUTION AND MAY PROPERLY BE EMPLOYED WHERE

A DIRECT CONTEMPT POSES A THREAT TO THE ORDERLY ADMINISTRATION

OF JUDICIAL PROCEEDINGS. UNITED STATES v, Witson, 421 U.S,

399 (1975); Petition at 6. He CONTENDS, HOWEVER, THAT THE

UTILIZATION OF SUCH A PROCEDURE, IN THE CIRCUMSTANCES OF

THIS CASE, VIOLATED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS

OF LAW. PETITION AT 2, 6,2

THE DUE PROCESS DEPRIVATION ASSERTED BY PETITIONER

IS SIMPLY THAT HE WAS “AFFORDED FAR LESS PROTECTION” THAN

RECALCITRANT WITNESSES IN FEDERAL GRAND JURY PROCEEDINGS.

FoR THAT REASON, HE URGES REVIEW BY THIS COURT AND SUBMITS

HIS CASE AS A VEHICLE FOR ANNOUNCING PRINCIPLES OF CON-

SITUTIONAL IMPORT. PETITION AT 19, 11. By THAT APPROACH,

HE EVIDENCES A MISAPPREHENSION OF BOTH THE IMPORT AND

THE BASIS OF THIS CouRT’S DECISION IN HARRIS Vv. UNITED

States, 382 U.S. 162 (1°65),

(Fogtnore 1 CONTINUED)

UMMARY ADJUDICATIONS ARE NOT PERMISSIBLE, HOWEVER,

MERELY BECAUSE THE CONTUMACIOUS BEHAVIOR OCCURRED IN THE

PRESENCE OF THE COURT, THER, THE EXERCISE OF THAT

POWER MUST BE NECESSARY “TO AVOID INTERFE ENCE WITH

WEALTH V. ARICA, 66 Pa, 603, 693 (1476), OH

IN > fare te THIJS aye PETITIONER HAS FAILED TO CONFORM

WITH THIS LOURT'S RULE 23(F WHICH DESCRIBES WITH

PARTICULARITY THE MATTERS WHICH MYST BE CONTAINED IN

THE PETITION TO DEMONSTRATE THAT “THE FEDERAL QUESTION

WAS TIMELY AND PROPERLY RAISED SO AS TO GIVE THIS COURT -

JURISDICTION TO REVIEW THE JUDGMENT ON WRIT OF CERTIORARI,

PETITIONER’S ARGUMENT IS ERRONEOUSLY PREDICATED

ON THE ASSUMPTION THAT HARRIS, SUPRA, WHICH WAS DECIDED

BY A CLOSELY DIVIDED CourT, IS A DECISION OF CONSTITUTIONAL

DIMENSION. IN THE CONTEXT OF PETITIONER'S CASE, HOWEVER,

IT IS IRRELEVANT THAT THIS CouRT, IN HARRIS, OVERRULED

Brown v. Unitep States, 359 U.S. 41 (1959), AND HELD THAT

A WITNESS’ REFUSAL TO ANSWER QUESTIONS POSITED BY A GRAND

JURY COULD NOT BE DEALT WITH IN A SUMMARY FASHION EVEN

IF THE REFUSAL WAS COMMITTED IN THE ACTUAL PRESENCE OF

THE SUPERVISING COURT. THAT HOLDING WAS EXCLUSIVELY LIMITED

TO, AND CONCERNED WITH, THE SCOPE OF RULE 42(a) AND RULE

42(p) oF THE FeperAL Ruces oF CRIMINAL ProceDure.” HARRIS

v. UNitep STATES, SUPRA, AT 164-165, 162-163. In BOTH HARRIS

AND BROWN, SUPRA, THIS COURT WAS CONCERNED SOLELY WITH

PROCEDURAL REGULARITY AND WITH ITS RESPONSIBILITY FOR

Rute 42(A), WHICH ALLOWS SUMMARY DISPOSITION, PROVIDES:

A CRIMINAL CONTEMPT MAY BE PUNISHED SUM~

MARILY IF THE JUDGE CERTIFIES THAT HE SAW OR

HEARD THE CONDUCT CONSTITUTING THE CONTEMPT

AND THAT IT WAS COMMJTTED IN THE ACTUAL PRES~

ENCE OF THE COURT. [HE ORDER OF CONTEMPT SHALL

RECITE THE FACTS AND SHALL BE SIGNED BY THE

JUDGE AND ENTERED OF RECORD.

Rute 42(B) PROVIDES THAT A CRIMINAL CONTEMPT, EXCEPT AS

PROVIDED IN SUBDIVISION (A) OF THE RULE, SHALL BE

PROSECUTED ON NOTICE.

SUPERVISING AND GUIDING THE FEDERAL JUDICIARY. / HARRIS V,

UNITED STATES, \SUPRA, AT 167, DisseNTING OPINION OF STEWART,

J. aT 168; Brown v, Univep States, supra, Dissentinc OPINION

OF Warren, C. J, at 62,

TH1s CouRT HAS NEVER HELD THAT SUMMARY CONTEMPT PRO-

CEEDINGS ARE CONSTITUTIONALLY IMPERMISSIBLE. INDEED, IT

HAS RECOGNIZED, IN CASES ARISING OUT OF BOTH FEDERAL AND

STATE COURTS, THAT SUCH PROCEDURES CAN BE, AND ARE, NECESSARY

TO PRESERVE THE FUNCTION AND DIGNITY OF THE COURTS. SEE

Aeetitniete CLAIM, THAT HARRIS tp: OR SHOULD, E WELD

TO BE, OF CONSTITUTIONAL IMPORT

P E R

Lis Dai Stages BE PTD nF

QUOTED IN N. 4, AT 166, IN HARRIS. THE QUOTATION IN

QUESTION IS NOTHING MORE THAN A STATEMENT OF THE DUE

PROCESS REQUIREMENTS FOR THE PROSECUTION oF CONTEMPT,

» THE QUESTION

IN WAS NOT WHETHER THE REFUSAL TO TESTIFY OCCURRED

IN THE ACTUAL PRESENCE OF THE COURT, THEREBY OBVIATING

THE NEED FOR THE DETERMINING AUTHORITY TO RELY UPON

THE STATEMENTS OF OTHERS FOR ITS KNOWLEDGE OF THE

ESSENTIAL ELEMENTS OF THE _BEHAVI ND JHE [DENTITY

rel es ara 0)

, 8 “4 ’

THER, IT WAS WHETHER THIS COURT, IN EXERCISING ITS

SUPERVISORY POWERS, AND IN CONSTRUING THE APPLICABLE

FEDERAL RULES OF CRIMINAL PROCEDURE, CONSTRUED THE RE-

FUSAL TO TESTIFY AS POSITING SUCH A THREAT TO THE ORDER

AND REGULARITY OF THE PROCEEDINGS IN PROGRESS AS TO

JUSTIFY ITS INCLUSION “hig + THE N CATEGORY OF

GoFEs GOVERNED BY FEDERAL RULE OF CRIMINAL _

A), SUPRA, AT :

Groppi v, LEsuie, supRA, AT 505; Tayior v, Hayes, 418 U.S.

488, 499 (1974) ,> THUS, EVEN IF IT IS ASSUMED THAT THIS

Court, AS IT IS PRESENTLY CONSTITUTED, WOULD REAFFIRM

HARRIS AND DISALLOW SUMMARY CONTEMPT DISPOSITIONS IN THE

FEDERAL GRAND JURY context, © NO CONSTITUTIONAL QUESTION

IS PRESENTED. SINCE THE PROCEDURE ITSELF, WHICH IS HERE

AT ISSUE, IS NOT CONSTITUTIONALLY PROHIBITED, THE PROPRIETY

OF ITS UTILIZATION WITHIN THE PARTICULAR CONFINES AND

CONTEXT OF A STATE GRAND JURY SYSTEM SHOULD, AND MUST, RELY

UPON THE EXERCISE OF THE SUPERVISORY POWERS OF THE HIGHEST

COURT OF THAT JURISDICTION.

THE QUESTION OF WHETHER CONTUMACIOUS CONDUCT WILL

THWART THE FUNCTION AND OPERATION OF THE COURT DEPENDS UPON,

AND, THEREFORE, MUST BE EVALUATED WITHIN, THE CONTEXT OF THE

COURT PROCEEDING ITSELF. THE MERE FACT THAT THE UTILIZA-

TION OF Rute 42(B) PROCEDURES, IN THE FEDERAL GRAND JURY

CONTEXT, HAS GIVEN NO INDICATION OF IMPEDING THE FUNCTIONING

OF SUCH GRAND JURIES IS IMMATERIAL. See Harris v, Unitep States,

5

THE USE OF THE POWER IS, OF COURSE, SUBJECT TO THE

LIMITATION THAT THE ELEMENTS OF THE MISCONDUCT WERE

OBS D BY THE JUDGE, SUPRA, N. 8

AT . BY REASON OF ver Trionen © Curnient Kener

IN THE PRESENCE OF THE SUPE

ARCS UY

AND TO PRODUCE THE DOCUMENTS AT ISSU

SUCH LIMITATION IS INAPPLICABLE TO THE CASE AT BAR,

SEE SupRA, CONCURRING OPINION

OF BLACKMUN, J. AT -5272,

SUPRA, N. 5 at 167, IN THE CASE AT BAR, THE PROCEEDING

AT ISSUE WAS A STATE, AND NOT A FEDERAL, GRAND JURY INVESTI-

GATION. IN CONTRADISTINCTION TO THE FEDERAL SYSTEM, SUCH

INVESTIGATION, WITHIN THE COMMONWEALTH OF PENNSYLVANIA, IS

ENTIRELY DEPENDENT UPON THE CONVENING OF A SPECIAL INVESTI-

GATING GRAND JURY WHICH IS JUDICIALLY SUPERVISED FROM ITS

INCEPTION, IS STRICTLY REGULATED BY THE SUPERVISING COURT,

AND IS, OF NECESSITY, OF LIMITED DURATION, SEE COMMONWEALTH

v. McCrosxey, 443 Pa. 117, 134, 139 (1971); CommMoNWEALTH Ex

REL. Camerot Detective Acency, Inc, v. Specter, 451 Pa. 370

(1973). UNDER ALL OF THESE CIRCUMSTANCES, A SUMMARY CONTEMPT

POWER IS ESSENTIAL FOR THE VINDICATION OF THE COURT AND TO

INSURE THAT THE COURT’S BUSINESS IS NOT THWARTED. INDEED,

WITHOUT SUCH POWER, THE STATE SYSTEM HERE AT ISSUE WOULD

BE useLess.’

So LONG AS THE SUMMARY CONTEMPT POWER IS NOT EXERCISED

IN DEROGATION OF THE DUE PROCESS CONSIDERATIONS WHICH HAVE

BEEN ARTICULATED BY THIS COURT, NO CONSTITUTIONAL QUESTION

IS PRESENTED.© WITHIN THE AMBIT OF THOSE CONSIDERATIONS,

IN POINT OF FACT, PETITIONER'S REFUSAL TO COMPLY WITH

COURT ORDERS HAS NOW THWARTED TWO SEPA GRAND JURY

NVESTIGATIONS, SEE :

Lvesricariys Granp Jusy, INION OF ROBERTS, J. AT

OF :

THE USE OF THAT POWER, IN THIS CASE FULLY COMPORTED

WITH THOSE CONSIDERATIONS. SEE N. > INFRA AT ©.

9

HOWEVER, IT MUST REMAIN WITHIN THE PURVIEW OF THE STATE

COURTS TO DETERMINE WHAT ACTIONS CONSTITUTE SUCH AN IMMEDIATE

THREAT TO THEIR INTEGRITY AS TO JUSTIFY THE USE OF THAT

POWER,

NEITHER DOES PETITIONER'S ALTERNATE CONTENTION,

THAT REVIEW BY THIS COURT IS NECESSARY TO EXPLICATE THE

BASIS AND RATIONALE OF VARIOUS CIRCUIT CoURT DECISIONS,

ARISING IN THE FEDERAL CONTEXT, PROVIDE ANY BASIS FOR THE

ISSUANCE OF THE WRIT REQUESTED. See PETITION AT 9-11.92 -

EVEN IF IT WERE TO BE ASSUMED THAT CLARIFICATION AS TO

THE BASIS OF THOSE DECISIONS IS DESIRABLE OR NECESSARY,

A STATE-BASED CASE, WHICH PRESENTS NO CONSTITUTIONAL

QUESTION, IS NCT THE APPROPRIATE VEHICLE. WHERE THE REVIEW

OF THE JUDGMENT OF A STATE COURT IS SOUGHT, THE GRANT OF

CENTIORARI IS DEPENDENT UPON THE EXISTENCE OF A FEDERAL

CONSTITUTIONAL QUESTION, NO SUCH QUESTION IS PRESENTED

BY THIS CASE,

|

SPECIFICAGLY PETITIONER SUGGESTS THAT A “DIMENSION OF

Fy es "1016. Oru TR. 19 » GITED

PE SMILE So

SPOKE pee er dhe IN TERMS OF EDERAL STATUTES AND

Petition ’ ae CITATION OF CONSTITUTIONAL PROTECTIONS,”

OWEVER, SINCE HARRIS, SUPRA, IS

CLEARLY NOT A CONSTITUTIONALLY BASED DECISION, EVEN IF

T WERE SO CONSTRUED BY TH IRCUIT IN

WHICH RESPONDENT CONTESTS), THAT CONSTRUCTION IS

IRRELEVANT TO THE DISPOSITION OF PETITIONER’S REQUEST

FOR REVIEW,

10

COHCLUS LON

FOR THE FOREGOING REASONS, RESPONDENT, THE COMMON-

WEALTH OF PENNSYLVANIA, RESPECTFULLY REQUESTS THAT THE

CourRT NOT ISSUE A WRIT OF CERTIORARI TO REVIEW THE

DECISION BELOW,

RESPECTFULLY SUBMITTED,

ele WELL Oks

GAELE McLAUGHLIN BARTHOLD

Assistant District ATTORNEY

STEVEN H. GOLDBLATT

Deputy District Attorney For Law

EDWARD G, RENDELL

District ATTORNEY

2400 Centre Sauare West

PHILADELPHIA, PENNSYLVANIA 19192

ll

IN THE SUPREME COURT OF THE UNITED STATES

JAMES T. O'BRIEN, : OCTOBER TERM, 1977

PETITIONER

Vv.

COMMONWEALTH OF PENNSYLVANIA, : No. 1196

RESPONDENT

CERTIFICATION OF SERVICE

1, GAELE McLAUGHLIN BARTHOLD, ESQUIRE, Counsec

FOR RESPONDENT, COMMONWEALTH OF PENNSYLVANIA, HEREBY

CERTIFY THAT | HAVE CAUSED A COPY OF THIS BRIEF IN OPPOSITION

To PetiTION FOR WRIT oF CERTIORARI TO BE SERVED uPON HOWARD

GITTIS, ESQUIRE, Counsec For Petitioner, James T, O’Brien,

BY DEPOSITING THREE COPIES IN THE UNITED States MAIL,

First Crass, Postace Prepaip, ADDRESSED To HOWARD GITTIS,

ESQUIRE, TweLFTH FLoor, PACKARD BuILDING, PHILADELPHIA,

PENNSYLVANIA, 19102, on Wepnespay, Aprit 26, 1978,

, /

a H ~ f

Yad MmKeyy Diy

GAELE McLAUGHLIN BARTHOLD