Petition — Radigan v. Supreme Court of Kentucky
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RQ, e vq Office - Supreme Court, U.S.
- e @7 ( J F I L E D
No. MAR 21 1984
RTExarrest STEVAS.
CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1983
versas
SUPREME COURT OF KENTUCKY -_ Respondent
)
WILLIAM M. RADIGAN - - .- .- . Petitioner
|
|
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF KENTUCKY
J. VINCENT APRILE II
Attorney at Law
2520 Meadow Road
Louisville, Kentucky 40205
Counsel for Petitioner
March 2!_, 1984
WESTERFIELD-BONTZ CO., 619 W. KENTUCKY-*.0. BOX 3251, LOUISVILLE, KY.
i
QUESTIONS PRESENTED
I.
Whether the Court below denied petitioner due process
of law under the Fourteenth Amendment to the Federal
Constitution by failing to observe minimal presumptions
of law as well as standards and burdens of proof in ad-
judicating petitioner in contempt of court.
I.
Whether the Court below denied petitioner his right
to Federal due process of law by failing to provide clear
and certain notice that petitioner was facing criminal
contempt charges.
ITI.
Whether the Court below denied petitioner Federal
procedural due process by finding him guilty of criminal
contempt without affording him an opportunity to present
or cross-examine witnesses and by acting in disregard of
his Fifth Amendment privilege against self-incrimination.
IV.
Whether the Court below denied petitioner due process
of law under the Federal constitution by holding him in
contempt of Court when his conduct constituted both
“substantial compliance” and a “good faith effort to com-
ply” with the October 3, 1983 Order.
V.
Whether the Court below denied petitioner Federal due
process of law by holding him in contempt of Court when
the evidence revealed that petitioner lacked the present
ability to comply with the October 11, 1983 deadline for
filing the Appellant’s Brief.
ii
VI.
Whether the Court below denied petitioner Federal due
process by finding him in contempt of court where there
was no competent, probative evidence to support a finding
of criminal contempt.
VII.
Whether the decision of the Court below to hold pe-
titioner in contempt of Court, under the facts and circum-
stances at bar, was arbitrary and capricious and an abuse
of due process of law under the Federal Constitution.
VIII.
Whether the Court below, in failing to recuse itself
from the contempt proceedings in the above-captioned
case, denied petitioner his constitutional right to a fair
trial.
IX.
Whether the Court below denied petitioner Federal due
process of law by suspending the imposition of his fine
without setting any time limitation on the suspension and
without delineating any terms and conditions for the
suspension.
ili
TABLE OF CONTENTS
PAGE
SD OUNUNIU ooik'c sc covcgevescrsvecseesescee i- ii
PP eee iv- v
SE GIT os ov dns cou Sbvcnsetuneenn shave ceuekn 1- 2
SEE 6 i'w d.ccbcecccbceupehccsieeveeehesanaes 2
Constitutional Provisions Involved ................. 2- 3
Statement of the Case ........ ccc cecccccsscveccecs 3-10
Reasons for Granting the Writ .................... 10-28
I 5 ka Dacvendccccupucns covaceskhneneneaun 28
Certificate of Service ...........cccceceeeveveecees 29
iv
TABLE OF AUTHORITIES
Cases: PAGE
Addington v. Texas, 441 U. S. 418, 99 S. Ct. 1804,
Oe Bk es Oe Se CUNO oo cece Ce Kocseereses 13
Bloom v. State of Illinois, 391 U. S. 194, 88 S. Ct.
BOtty Ge Ss, ME Cle (IDOE) oosicicicccciccdoncs 22
Eaton v. Tulsa, 415 U. S. 697, 94 S. Ct. 1228, 39
i Bs Se OED -W'i:0 0:0 0104055 pdb edcsescecs 16
Gardner v. Florida, 430 U. S. 349, 97 S. Ct. 1197,
Oe Bk Sk Se EMOTE vce beteutsdacdennses 25
Gompers v. Buck’s Stove ¢ Range Co., 221 U. 8. 418,
31 S. Ct. 492, 55 L. Ed. 797 (1911)... .12, 14, 15, 17, 18
Groppi v. Leslie, 404 U_ S. 496, 92 S. Ct. 582, 30
is: MI EE RE onc Sse sided vewesvaccwans 14
Hardin v. Summitt, Ky., 627 8. W. 2d 580 (1982) .11, 12, 21
Harris v. United States, 404 U.S. 1232, 92 S. Ct. 10,
Fe Shs ME OP COED 6 cc. vcechvaceccceenks cas 24
In Re Bithoney, 486 F. 2d 319 (1st Cir. 1973) ..... 26
In Re McConnell, 370 U. S. 230, 82 S. Ct. 1288,
Ee y F &; Re te eee 27
In Re Marshall, 423 F. 2d 1130 (5th Cir. 1970) .... 27
In Re Masinter, La., 355 So. 2d 1288 (1978)....... 26
In Re Oliver, 333 U. S. 257, 68 S. Ct. 499, 92 L. Ed.
De SD sb kncberrellocet eocdecwedemevehLcen 13, 17
In Re Radigan, Ky., 660 S. W. 2d 673 (1983) ...... 1,6
In Re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25
SS % fF 5. eee ey ey Se 13
International Long Assn. v. Philadelphia Mar. T.A.,
389 U. S. 64, 88 S. Ct. 201, 19 L. Ed. 2d 236
CUTE 9.4.5 Cabs eecserencssecasakesn bidcon tices 17
Jackson v. Virginia, 443 U. S. 307, 99 S. Ct. 2781,
es FS FY. rer ere 24
Matter of Schwartz, D.C., 391 A. 2d 278 (1978 ....23, 26
Mayberry v. Pomnsglesaie, 400 U. S. 455, 91 S. Ct.
499, 27 L. Ed. 2d 532 (1971) ........ ccc ceeeees 24
People v. Kurz, 35 Mich. App. 643, 192 N. W. 2d 594
PEE OS AS RR UAMME RUST ADECLENCebEs ceGoucunn 27
PAGE
Shillitani v. United States, 384 U. S. 364, 86 S. Ct.
1531, 16 L. Ed. 2d 622 (1966) ..........cc000. 12, 25
Taylor v. Hayes, 412 U. S. 488, 94 S. Ct. 2697,
ee ED hic vecccccsnwacecccdicc 17, 24
United States v. Bryan, 339 U. S. 323, 70 S. Ct. 724,
ee 21
United States v. Rylander, 103 S. Ct. 1548 (1983).. 20
United States v. Schiffer, 351 F. 2d 91 (6th Cir.
DO te erase sub enGeeseteceseeecees 27
Vachon v. New Hampshire, 414 U. S. 478, 94S. Ct.
664, 38 L. Ed. 2d 666 (1974) .............0005. 24
Young v. Knight, Ky., 329 S. W. 2d 195 (1959).... 11
Other:
Conc con deeseeceucddisecevese 2
vi
APPENDIX
TABLE OF CONTENTS
PAGE
Order, Supreme Court of Kentucky, Herald v. Com-
I EE aoa wn bass bbe kot eseeseeece la
Opinion and Order, Supreme Court of Kentucky,
In Re Radigan, 11-2-83 .......cccsceccccscees 2a- 4a
Order Denying Motion to Vacate, Supreme Court
of Kentucky, In Re Radigan, 11-17-83 ......... 5a
Order Denying Motion to Reconsider, Supreme
Court of Kentucky, In Re Ravigan, 12-22-83... 6a
Affidavit of William M. Radigan, filed as an attach-
ment to Motion to Reconsider, In Re Radigan,
SE eee aCiv estes cesuveeeccestetsece 7a-lla
Affidavit of Mark A. Posnansky, filed as an attach-
ment to Motion to Reconsider, In Re Radigan,
eas end ek se 640.208 0040 bet 408 ¥ e888 12a-l4a
SUPREME COURT OF THE UNITED STATES
October Term, 1983
No.
WiuiaAM M. RapigAN - - - - ~~ Petitioner
Vv.
SUPREME Court OF KenTUcKyY - - Respondent
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF KENTUCKY
The petitioner, William M. Radigan, prays that a
writ of certiorari issue to review the opinion and order
of the Supreme Court of Kentucky entered in this
proceeding on November 2, 1983.
OPINIONS BELOW
The opinion and order finding the petitioner, Wil-
liam M. Radigan, in contempt of court and fining him
$100 for his contempt, payment of the fine suspended
to further conduct, was rendered by the Kentucky
Supreme Court on November 2, 1983. That opinion
and order is reported as In Re Radigan, Ky., 660
S. W. 2d 673 (1983). The Kentucky Supreme Court
denied petitioner’s motion to vacate on November 17,
1983 in an unpublished order. The Kentucky Su-
preme Court denied petitioner’s motion to reconsider
on December 22, 1983 in an unpublished order. Copies
2
of the above-mentioned opinion and orders are attached
hereto.
JURISDICTION
The opinion and order of the Kentucky Supreme
Court was entered on November 2, 1983. Petitioner’s
timely motion to reconsider was denied on December
22, 1983. An order extending the time to file the pe-
tition for writ of certiorari in the above-captioned
cause to and including March 21, 1984 was entered
by this Court on February 16, 1984. The jurisdiction
of this Court is invoked under 28 U.S.C. § 1257(3).
CONSTITUTIONAL PROVISIONS INVOLVED
The constitutional provisions involved are the Fifth,
Sixth and Fourteenth Amendments to the Federal Con-
stitution.
The Fifth Amendment to the United States Con-
stitution, in pertinent part:
. nor shall any person . . . be compelled in
any criminal case to be a witness against him-
self...
The Sixth Amendment to the United States Con-
stitution, in pertinent parts:
In all crimina] prosecutions, the accused shall en-
joy the right to . . . be informed of the nature
and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and
to have the assistance of counsel.
3
The Fourteenth Amendment to the United States
Constitution, in pertinent part:
. nor shall any State deprive any person of
liberty . . . without due process of law...
STATEMENT OF THE CASE
On October 3, 1983, the Kentucky Supreme Court
entered an order granting the indigent appellant in
the case of Joseph Herald v. Commonwealth of Ken-
tucky, Kentucky Supreme Court No. 83-SC-522-I, an
extension of time to and including October 11, 1983
to file the initia] appellant’s brief and perfect the
criminal appeal. The order of October 3, 1983 also
directed that, ‘‘{i]f appellant’s brief is not filed on
or before October 11, 1983, counsel for the appellant
[ William M. Radigan, court-appointed appellate public
defender] shall appear before this court on October
24, 1983, at 10:30 a.m., in order to show cause why
appellant’s counsel should not be held in contempt of
this court for failure to timely file the brief’’ (Order,
10-3-83).
On October 11, 1983, Mr. Radigan' filed a motion
for an extension of ten days in which to file the Herald
brief. Prior to the Kentucky Supreme Court’s ruling
1At all times during his representation on appeal of Joseph
Herald, the petitioner, William M. Radigan, was employed by the
Kentucky Department of Public Advocacy, ‘‘an independent
agency of state government,’’ created ‘‘to provide for the estab-
lishment, maintenance and operation of a state sponsored and con-
trolled system for,’’ inter alia, ‘‘|t|he representation of indigent
persons accused of crimes . . . which may result in their incar-
(Footnote continued on following page)
4
on this timely extension request of October 11, 1983,
Mr. Radigan on October 21, 1983 tendered for filing
the appellant’s brief in the Herald case. Consequently,
when Mr. Radigan appeared before the Kentucky
Supreme Court on October 26, 1983 for the rescheduled
show cause hearing, he had already tendered for filing
as of October 21, 1983 the brief for appellant in the
Herald case. On October 31, 1983, the Kentucky Su-
preme Court granted Mr. Radigan’s motion for a ten-
day extension and ordered the appellant’s brief in the
Herald case filed as of that date (Order, 10-31-83).
Consequently, five days after the show cause hearing
and three days prior to the issuance of the opinion and
order holding Mr. Radigan in contempt, the Kentucky
Supreme Court by order directed that the tendered
appellant’s brief in Herald be filed.
At the show cause hearing held in the instant case,
the Chief Justice of the Kentucky Supreme Court com-
menced the hearing by stating:
Mr. Radigan will attempt to explain—to show
cause why he should not be punished for contempt
for not filing an order of this Court — or comply-
ing with an order of this Court vis a vis the filing
of a brief on a certain time (Tape of Hearing,
hereinafter designated T.H.).
(Footnote continued from preceding page)
ceration . . .’’ KRS [Kentucky Revised Statutes] 31.010(1).
Mr. Radigan was employed as an ‘‘assistant public advocate.’’
According to Kentucky law, ‘‘ [t]he assistant public advocates shall
be attorneys, shall be appointed by the public advocate, and shall
be covered by the merit system.’’ KRS 31.020(4).
5)
The Chief Justice then remarked, ‘‘I have talked
to the Court and certainly Mr. Radigan you can go
ahead and make whatever explanation you want. I
have also, with the permission of the Court, Mr. [Paul]
Isaaes [the Kentucky Public Advocate], let you say
something, a very limited amount. Now I think Mr.
Radigan should take the stand, as it were’’ (T.H.).
At that point Mr. Radigan told the Kentucky
Supreme Court, ‘1 think that I can explain the sit-
uation in one very simple word — caseload”’ (T.H.).
Mr. Radigan then began to explain the caseload
problems on appeal beseiging both the Department of
Publie Advocacy’s appellate section and the individual
oppellate attorneys in that section.
Almost immediately Mr. Radigan, the petitioner,
was interrupted by one of the court members, Justice
Vance, who asked, ‘‘Is it true then from your talking
about the caseload that if it had not been for the
caseload you could have complied with this order to
get the brief in on time’’ (T.H.)? Petitioner re-
sponded by explaining that at the time the show ez use
order at bar was entered, he was under a similar order
from the Kentucky Court of Appeals. the intermediate
appellate court of Kentucky, to file in that court a
brief on which he had already started working (T.H.)
Petitioner explained he was ‘‘attempting to get that
brief finished at the same time when [the Kentucky
Supreme Court’s] order came out’? and ‘“[i]t was
simply physically impossible for [him], timewise, to
get any type of preparation done on this brief to com-
ply with [the Supreme Court’s] order’’ (T.H.).
6
Mr. Radigan then told the Kenutcky Supreme
Court that since July 5, 1983, the date he received the
Herald case, he had filed a total of fourteen (14) ap-
pellate briefs in the Kentucky Supreme Court and
the Kentucky Court of Appeals as well as ‘‘several
briefs in the federal district court’’ and one in the
federal court of appeals (T.H.).
Petitioner explained that he completed the brief
in the Herald case within ten days after he began
reading the record (T.H.).
Justice Leibson then told Mr. Radigan that he found
it ‘‘extremely unacceptable,’’ ‘‘completely unaccept-
able,’’ ‘‘this business of filing for an extension on the
last day when the brief is due’’ (T.H.).
Mr. Isaacs, the Public Advocate, petitioner’s ulti-
mate administrative supervisor, then spoke briefly at
the hearing, but explained that he would make no state-
ments ‘‘concerning this particular case’’ for various
reasons (T.H.). Mr. Isaacs only discussed his general
commitment to try to solve the problems mentioned at
the hearing (T.H.).
No other persons besides petitioner and Mr. Isaacs
addressed the Kentucky Supreme Court at the hearing.
On November 2, 1983, in a published opinion and
order, the Kentucky Supreme Court observed that a
show cause ‘‘hearing was held on October 26, 1983, at
which time Mr. Radigan appeared and offered explana-
tion’’ for his failure to comply with the order of Octo-
ber 3, 1983. Jn Re Radigan, Ky., 660 S. W. 2d 673
(1983). The Kentucky Supreme Court in its opinion
and order made numerous findings of fact. ‘‘The tran-
7
script of evidence was filed on June 10, 1983.’’ Td.
‘Thereafter on three occasions on or about the day
the brief was due the appellant failed to file but instead
filed an affidavit, notice and motion for another thirty
days extension.’’ Jd. ‘‘In each case the allegations
of Mr. Radigan’s affidavits are markedly similar.’’ Jd.
After noting that ‘‘for the most part the six para-
graphs of allegations in each affidavit parrot the pre-
ceding affidavit chapter and verse except for small dif-
ferences in the first paragraph,’’ the Kentucky Su-
preme Court concluded that ‘‘[i] sum they indicate
counsel is reasonably busy, and nothing further.’’ Jd.
According to the Kentucky Supreme Court, ‘‘[a]t
the oral hearing conducted on October 26, 1983, Mr.
Radigan advised [the court] that he looked at the
record for the first time on the last day of the third
extension.’’ Jd. The Supreme Court of Kentucky em
phasized that ‘‘[i]n spite of a pending show cause order
he [petitioner] intentionally chose to work on other
matters.”’ Id.
The Kentucky Supreme Court observed that
‘‘[wjhen Mr. Radigan appeared in response to the
Order of [the Kentucky Supreme Court] to show cause,
his response was significantly inadequate.’’ Id. at 674.
The Kentucky Court found that ‘'[t]he brief which
[petitioner] has filed in the Joseph Herald case shows
that it is a relatively simple case with few issues, all
of a routine nature,’’ which as petitioner ‘‘has admitted
and demonstrated,’’ is ‘ta brief that should have taken
ten days to prepare, filed 133 days after the transcript
of evidence was filed.’’ Jd.
8
The Kentucky Supreme Court found ‘‘no aecept-
able excuse for beginning work on this case on Octo-
ber 11, 1983°" and further found petitioner ‘tin con-
tempt of the Order . . . entered October 3, 1983,
requiring him to file his brief on or before October 11,
1983 or appear to show cause why he should not be
held in contempt for failure to do.’’ Jd. According
to the Kentucky Supreme Court, petitioner’s ‘‘explana-
tions as to other work and projects occupying his time
during the period in question’? are ‘‘grossly inade-
quate.’’ Id. The Kentucky Supreme Court found ‘‘no
explanation for failing to notify [it] immediately if
there were considerations that would legitimately have
prevented [petitioner’s] complying with’’ the October
3, 1983 Order. Id.
The Kentucky Supreme Court found petitioner in
contempt of court and fined him #100 for his contempt.
Because ‘‘this’’ was petitioner’s ‘‘first conviction, pay-
ment of the fine [was] suspended subject to [peti-
tioner’s] further conduet.”’ Jd.
In his motion to vacate the opinion and order of
the Kentucky Supreme Court rendered on November 2,
1983 as being obtained in violation of appellate due
process under the Fourteenth Amendment of the
United States Constitution, the petitioner argued that
the decision in his case was rendered by a five justice
court composed of three mandatorily disqualified jus-
tices and that the appellate tribunal was constituted
in violation of §110(3) of the Kentucky Constitution.
On November 17, 1983, the Kentucky Supreme Court
9
entered an order summarily denying petitioner’s mo-
tion to vaeate.
In his timely motion to reeonsider the order hold-
ing him in contempt of court the petitioner asserted
the following federal constitutional contentions that:
(a) he was denied due process of law by the failure of
the Kentucky Supreme Court to observe minimal pre-
sumptions of law as well as standards and burdens of
proof in adjudicating him in contempt of court; (b) he
was denied his right to due process of law by the Ken-
tucky Supreme Court’s failure to provide clear and
certain notice that he was facing criminal contempt
charges; (c) he was denied procedural due process by
the Kentucky Supreme Court finding him guilty of
criminal contempt without affording him an opportun-
ity to present or cross-examine witnesses and by the
court acting in disregard of his Fifth Amendment privi-
lege against self-incrimination; (d) he was denied due
process of law by the Kentucky Supreme Court holding
him in contempt of court when his conduct constituted
both ‘‘substantial compliance’’ and a ‘‘ good faith effort
to comply”’ with the court’s order of October 3, 1983;
(e) he was denied due process of law by the Kentucky
Supreme Court holding him in contempt when the evi-
dence revealed that he lacked the present ability to
comply with the October 11, 1983 deadline for filing
the appellant’s brief in the Herald case; (f) he was
denied federal due process by the Kentucky Supreme
Court finding him in contempt where there was no
competent, probative evidence to support a finding of
criminal contempt; (g) he was denied due process
10
by the Kentucky Supreme Court’s arbitrary and
eapracious finding, under the facts and circumstances
at bar, that he was in contempt of court; (h) he was
denied due process when the Kentucky Supreme Court
violated the rule of the least judicial power and held
him in contempt, even after he had by timely motion
requested an extension to file the brief and tendered
the brief within the requested period ; (i) he was denied
his constitutional right to a fair trial when the Ken-
tucky Supreme Court failed to recuse itself from the
contempt proceedings at bar; (j) he was denied due
process by the Kentucky Supreme Court’s judicial
vindictiveness in holding him in contempt of court for
requesting an extension of ten days past the court im-
posed deadline of October 11, 1983; and (k) he was
denied due process by the Kentucky Supreme Court’s
suspension of the imposition of his fine without setting
any time limitation on the suspension and without de-
lineating any terms and conditions for the suspension.
These were the federal constitutional contentions that
the Supreme Court of Kentucky summarily overruled
by denying petitioner’s timely motion to reconsider the
opinion and order holding him in contempt of court.
REASONS FOR GRANTING THE WRIT
I. The Decision Below Holding Petitioner In Contempt
Of Court, Without Affording Him the Procedural Due
Process Mandated by the Federal Constitution, Con-
flicts with Previous Decisions of the Court.
It is quite apparent from the wording of the order
of October 3, 1983 that the purpose of including the
11
requirement of a ‘‘show cause’’ hearing was to ‘‘compel
obediance to and respect for an order of court.’’ See
Young v. Knight, Ky., 329 8. W. 2d 195, 200 (1959).
Thus, the Kentucky Supreme Court communicated to
William M. Radigan only that it would seek to punish
him by holding him in contempt if he did not ‘‘timely
file’’ the appellant’s brief in the Herald case. Such an
order put petitioner on notice that he faced a show
cause hearing limited to the question of civil, not crim-
inal contempt. Young v. Knight, supra; Hardin vy.
Summit, Ky., 627 8. W. 2d 580, 582 (1982).
The opinion and order of November 2, 1983 is
totally devoid of any language which indicates that
the court below gave Mr. Radigan the benefit of any
legal presumptions—such as the presumption of inno-
cence or the presumption of compliance—or placed the
burden of proof on the Kentucky court rather than on
the alleged contemnor, Mr. Radigan. Finally, it is
clear from a persual of the opinion and order in ques-
tion that the court below did not assess the proof by
an accepted, articulated standard of proof such as
‘*proof beyond a reasonable doubt’’ or proof by ‘‘clear
and convincing evidence.’’
In the instant case, the court’s order of October 3,
1983 appeared to be drafted in terms of civil contempt,
but the sanction of a $100 fine imposed after the appel-
lant’s brief in the Herald case had been tendered by
Mr. Radigan clearly made the entire proceeding one
of criminal contempt.
“Tt is not the fact of punishment but rather its
chavacter and purpose that often serve to distinguish
12
civil from criminal contempt.’’ Shillitani v. United
States, 384 U. S. 364, 86 S. Ct. 1531, 1535, 16 L. Ed. 2d
622 (1966), citing Gompers vy. Bucks Stove & Range
Co., 221 U. 8. 418, 31 8. Ct. 492, 55 L. Ed. 797 (1911).
See Hardin v. Summitt, supra at 581.
In civil contempt, ‘‘the act of disobedience con-
sist[s] solely ‘in refusing to do what had been ordered,
not ‘in doing what had been prohibited.’ ”’
Shillitani v. United States, supra, 86 S. Ct. at 1534.
When the contemnor carries ‘‘the keys of his prison in
his own pocket,’’ the action ‘tis esseutially a civil
remedy designed for the benefit of other parties and
to secure compliance with judicial decrees.’ Jd.
To open the show cause hearing, Chief Justice Ste-
phens announced that now **Mr.Radigan will attempt
to explain . . . why he should not be punished for
contempt for not . . . complying with an order of
this Court vis a vis the filing of a brief on a certain
time”’ (T.H.).
Tn its opinion of November 2, 1983, the court below
stated that ‘‘[w]hen Mr. Radigan appeared in response
to the Order of the Court to show cause, his response
was significantly inadequate’. Jd., at 674.
Obviously, the Kentucky court used the mere issu-
ance of a ‘tshow cause’’ order, one promulgated in ad-
vance of any conduct which could be deemed a viola-
tion of any order, te denigrate Mr. Radigan’s presump-
tious of either ‘tinnocence’’ or *‘compliance’? and to
shift the burden of proof from the court or its repre-
seuitative to Mr. Radigan. Such an approach, even by
13
the highest court of a State, is violative of the United
States Constitution.
A review of the entire opinion and order under
scrutiny reveals that the Kentucky Supreme Court at
no time enunciated a standard of proof, such as ‘‘ proof
beyond a reasonable doubt” or ‘‘clear and convincing
evidence,”’ by which Mr. Radigan’s conduct was found
to be contumacious. Instead, the phrases employed
to indicate the standard of proof employed in this deci-
sion are ‘‘significantly inadequate,”’ ‘‘no acceptable ex-
cuse,’’ and ‘‘grossly inadequate’’. IJd., at 674.
By depriving Mr. Radigan of these various federal
constitutional protectious, the Supreme Court of Ken-
tucky effectively skewed the fact-finding process and
undermined the correctness of its legal and factual de-
termination. Addington v. Teras, 441 U. S. 418, 99
S. Ct. 1804, 60 L. Ed. 2d 323 (1979); In re Winship,
397 U.S. 358, 90 8. Ct. 1068, 25 L. Ed. 2d 368 (1970).
Speaking within the context of a contempt proceed-
ing, this Court in Jn Re Oliver, 333 U.S. 257, 68 S. Ct.
499, 507-08, 92 L. Ed. 682 (1948), held that due process
of law requires clear and certain notice of the charge:
A person's right to reasonable notice of a charge
against hin, and an opportunity to be heard in his
defense—a right to his day in court—are basie in
our system of jurisprudence . . . (emphasis
added ).
Only a show cause order issued by the court is able
to provide reasonable notice of the charge necessary
14
for due process. ‘‘Reasonable notice of a charge and
an opportunity to be heard in defense before punish-
ment is imposed is basic to our system of jurispru-
dence.’’ Groppi v. Leslie, 404 U. S. 496, 92 8S. Ct.
582, 586, 30 L. Ed. 2d 632 (1972).
The show cause order of October 3, 1983 only gave
notice of a possible civi/ contempt action. The obvious
purpose and intent of the order of October 3, 1983 was
to insure that a brief was promptly filed in the Herald
case. When Mr. Radigan tendered that brief on Octo-
ber 21, 1983—five (5) days before the show cause hear-
ing—he purged himself of that contempt. However,
it is clear from the opinion and order of November 2,
1983 that Mr. Radigan was found guilty of criminal
contempt. As the court below characterized it, Mr.
Radigan’s contempt was his ‘‘first conviction’. Jd.,
at 674,
Without doubt, the nature of a criminal contempt
proceeding is entirely different than civil contempt.
No longer is there an attempt to compel action by the
person; instead the individual is being punished for
past offensive conduct. ‘The only possible means for
the court below to have altered the civil contempt
action to criminal contempt was for a new show cause
order to be issued specifying the possible action for
which Radigan was to be punished.
The failure of the Supreme Court of Kentucky to
give Mr. Radigan notice of the type of contempt he was
fxeing constitutes a violation of due process of law.
As this Court stated in Gompers vy. Buck’s Stove &
15
Range Co., 221 U.S, 418, 31S, Ct. 492, 500, 55 L. Ed.
T97 (1911):
[Iv]very citizen . . . by mere inspection of the
papers in contempt proceedings ought to be able
to see whether it was instituted for private litiga-
tion or for publie prosecution, whether it was
sought to benefit the complainant or vindicate the
court’s authority. He should not be left in doubt
as to whether relief or punishment was the object
in view. He is not only entitled to be informed of
the nature of the charge against him, but to know
that it is a charge, and not a suit ( emphasis
added),
It is a fundamental precept that a civil contempt pro-
ceeding cannot be changed to criminal contempt without
notice, In Gompers, this Court examined a situation
Where a company had filed a show cause motion against
the leaders of a union for violating a previously issued
injunction. Jd., 31S. Ct. at 496, Following a show
cause hearing, the judge imposed sentences of imprison-
ment on each defendant. /d., 31S. Ct. at 497-98. This
Court, in determining that a criminal contempt punish-
meut had been imposed in a case involving civil con-
tempt, reversed the judgment and commented:
There was therefore a departure —a variance —
between the procedure adopted and the punish-
ment imposed, when, in answer to a prayer for
remedial relief in the equity cause, the court im-
posed a puntative sentence appropriate only to a
proceeding at law for criminal contempt. The
result was as fundamentally erroneous as if in
16
an action of *‘A ys, B, for assault and battery,”
the judgment entered had been that the defendant
be confined in prison for twelve months. Jd.
Similarly, Mr. Radigan should not have been punished
for criminal coutempt where the proceedings were for
civil contempt.
From the tape of the show cause hearing, it is ap-
parent that the court below was concerned about the
fact that Mr, Radigan filed another extension motion
on the day the brief was scheduled to be filed. This
was likewise reflected in the opinion and order of
November 2, 1983, In the paragraph detailing the rea-
sons for the contempt citation, the court below stated:
We find no explanation for failing to notify us
immediately if there were considerations that
would have legitimately prevented his complying
with our Order of October 3 when notified thereof,
Id., at 674,
Obviously, a portion of the contempt holding was
premised on Mr. Radigan not immediately filing an
additional extension motion.
However, as noted in the show cause order, Mr,
Radigan was informed that contempt was possible
ouly if the brief was not timely filed. There was not
an iota of notice that petitioner could be held in con-
tempt for not immediately filing an extension motion,
Such ‘a conviction upon a charge not made”’ is a de-
nial of ‘tconstitutional due process.’’ Haton v. Tulsa,
415 U. 8S. 697, 94 8. Ct. 1228, 1229, 39 L, Ed, 2d 693
(1974).
17
As the prior discussion reveals, the netice provided
by the October 3, 1983 order was, at best, vague and
ambiguous. Such vagueness, however, is fatal to the
ultimate finding that Mr. Radigan was in criminal
contempt of the court below.
‘The judicial contempt power is a potent weapon.”’
Internat’l Long. Assn. v. Philadelphia Mar. T. A., 389
U.S, 64, 88 S. Ct. 201, 208, 19 L. Ed. 2d 236 (1967).
‘When it is founded upon a decree too vague to be
understood, it can be a deadly one.’’ Jd., 88 S. Ct. at
208. This Court there differentiated between ‘‘a vio-
lation of a court order by one who full understands its
meaning but chooses to ignoyve its mandate”’ and ‘‘acts
alleged to violate a decree that can only be described
as unintelligible.”’ Jd.
**The most fundamental postulates of our legal or-
der forbid the imposition of a penalty for disobeying
a conumand that defies comprehension.”’ Jd., 88 8S. Ct.
at 208.
The procedural due process rights which attach
to a contempt proceeding ‘‘include, as a minimum, a
right to examine the witnesses against him, to offer
testimony, and to be represented by counsel.’’ In Re
Oliver, 333 U.S. 257, 68 S. Ct., 499, 507-08, 92 L. Ed. 2d
682 (1948). The only exception to this rule is where
the act of misconduct occurs ‘‘in open court, in the
presence of the judge.’’ Jd., 68 S. Ct. at 509. Taylor
vy. Hayes, 413 U. 8S. 488, 94 S. Ct. 2697, 2702-2703, 41
L. E. 2d 897 (1974). Additionally, it has been long
recognized that the Fifth Amendment privilege against
self-incrimination applies-to contempt hearings. Gom-
18
pers Vv. Buck’s Stove & Range Company, 221 U.S. 418,
31S. Ct. 492, 500, 55 L. Ed. 797 (1911).
The court below at the show cause hearing failed
to comply with these minimal due process standards.
Rather than acting under the presumption that Mr.
Radigan had complied with the order of October 3,
1983, the court acted on the presumption that Mr.
Radigan was in comtempt. The burden of proof was
shifted to Mr. Radigan to disprove the contempt.
Even though the court below made three pragraphs of
‘findings of facts’’ in its opinion and order, there
were no witnesses presented on October 26, 1983 for
Mr. Radigan to cross-examine.
Without any notice as to the criminal nature of
the October 26th hearing, Mr. Radigan was not pre-
pared to offer witnesses in his own behalf. Similarly,
without any notice as to the criminal nature of the
October 26th hearing, Mr. Radigan was not alerted to
the fact that his statements to the court could be used
against him. Even a cursory examination of the
opinion and order of November 2, 1983 reveais that
the court below used Mr. Radigan’s explanation as
the basis for finding him in contempt of court.
By no stretch of the imagination did the proceed-
ings of October 25, 1983 comply with the mandate of
Oliver.
In actuality, Mr. Radigan, without prior notice or
warning, was given eight (8) days from Monday,
October 3, 1983, until Tuesday, October 11, 1983, to
file appellant’s brief. When petitioner believed he
could not meet this deadline, he on October 11, 1983,
19
filed a motion for extension, not of thirty days, but of
ten days in which to file the Herald brief.
In the instant case, Mr. Radigan’s motion for an
extension of ten days to and including October 21, 1983,
although filed on the last day of the previously granted
extension period, was timely. While it is true that
the court below in its opinion and order as well as at
the show cause hearing indicated its dislike for ex-
tension motions filed on the last day of the extension
period, there is no procedural rule or decision which
prohibits the filing of such a motion on the last avail-
able date. Consequently, the filing of such a motion is
neither improper nor untimely.
In the ultimate analysis, the filing of a procedurally
correct motion for extension, advancing colorable
‘*good cause’’ in support of the requested relief, can-
not be construed as improper conduct constituting con-
tempt of an order of the court. Mr. Radigan’s re-
liance on a procedural rule of appellate practice, a
timely extension motion, to inform the court below
that he could not comply with the October 11, 1983
deadline was legally and ethically proper and correct.
It shouid be noted that in the instant case on Oc-
tober 31, 1983, the court granted Mr. Radigan’s mo-
tion for a ten-day extension and ordered the appellant’s
brief in the Herald case filed as of that date (Order,
10-31-83). Thus, five days after the show cause hear-
ing and three days prior to the issuance of the opinion
and order holding Mr. Radigan in contempt, the court
below by order directed that the tendered appellant’s
brief in Herald be filed. The Kentucky Supreme Court
20
was well aware of Mr. Radigan’s ‘‘substantial com-
pliance’’ with its order of October 3, 1983 when that
court found him in contempt of court.
Since the uncontroverted evidence before the court
below establishes both ‘‘substantial compliance’’ and a
‘good faith”’ effort to comply with the order of October
3, 1983, it was a denial of due process under the federal
constitution to Gnd Mr. Radigan in contempt.
According to the court below, the brief filed in the
Joseph Herald case ‘tis a brief that should have taken
ten days to prepare’. Id., at 674. In the ..ords of the
court, ‘‘ten days . . . [was] the appropriate time
[for preparing the brief] in the first place’. JId., at
674. These statements are contained in a portion of
the opinion which is designated as factual findings.
Since by the court’s own findings, Mr. Radigan
needed at the minimum ten days to prepare the ap-
pellant’s brief in the Herald case, it was physically
impossible for him to comply with the order of October
3, 1983 which gave him only eight days to complete that
brief and file it by October 11, 1983. Under any read-
ing of the opinion and order, Mr. Radigan would still
have breached the Oceober 11, 1983 deadline by re-
questing a two-day extension of time to file the brief
in question.
‘*In a civil contempt proceeding . . . , of course,
a defendant may assert a present inability to comply
with the order in question.’’ United States v. Rylander,
103 S. Ct. 1548, 1552 (1983); emphasis in original.
‘‘While the court is bound by the enforcement order,
21
it will not be blind to evidence that compliance is now
factually impossible.’’ Jd. ‘*Where compliance is
impossible, neither the moving party nor the court has
any reason to proceed with the civil contempt action.”’
Id.,**It is settled, however, that in raising this defense,
the defendant tas the burden of production.”’ Id. See
Hardin v. Summitt, Ky., 627 8. W. 2d 580, 582 (1982).
Mr. Radigan raised his preseut inability to comply
for the court’s consideration when he filed a timely
motion for a ten-day extension to and including October
21, 1983.
‘Ordinarily, one charged with contempt of court
for failure to comply with an order makes a complete
defense by proving that he is unable to comply.”
United States v. Bryan, 339 U. 8S. 323, 70 S. Ct. 724,
730, 94 L. Ed. 884 (1950).
Mr. Radigan’s inability to comply with the deadline
of October 11, 1983 was explained in both his ten-day
extension request and in his testimony at the show
cause hearing. In his motion filed October 11, 1983,
Mr. Radigan explained that during the last thirty days
he had ‘‘completed a brief which is scheduled to be
filed with the Court of Appeals of Kentucky on Wed-
nesday, October 13, 1983’’ (Motion for Extension (10-
11-83), p. 1). At the show cause hearing, Mr. Radigan
explained that during the eight days between October
3-11, 1983, he had elected to complete and file the ap-
pellant’s brief in the Kentucky Court of Appeais.
Parenthetically, it should be noted that this was the
ease of Greene v. Commonwealth, File No, 83-CA-1340-
MR (Radigan’s Affidavit, (11-14-83), p. 2).
22
At the show cause hearing, members of the court
expressed displeasure that Mr. Radigan completed the
Court of Appeals brief and requested a ten-day exten-
sion in the Herald case despite the existence of the show
“ause order.
Mr. Radigan was faced with an ethical and prag-
matic dilemma. Based on the work he had already
completed on the Greene appeal and the number of ex-
tensions already granted by the Court of Appeals in
that case, Mr. Radigan estimated in his professional
judgment that if he continued to work on that appeal
he could file it within the extension period. On the
other hand, were Le to abandon the Greene appeal
temporarily to work on the Herald appeal, he quite
possibly would fail to complete Herald by October 11,
1983 and also, by choice, fail to complete the Greene
appeal. As a result both Greene and Herald could face
dismissal of their appeals with lengthy delays during
collateral actions to restore those appeals. Addition-
ally, Mr. Radigan could face censure to two appellate
courts for his handling of these two appeals.
Under these circumstances, Mr. Radigan’s election
to complete the Greene brief so it could be timely filed
and to request an extension of only ten more days in
Herald was not a contemptuous disregard of the order,
but rather a considered professional judgment under
difficult circumstances.
This Court has recognized that ‘‘criminal contempt
is a crime in every fundamental respect.’’ Bloom vy.
State of Illinois, 391 U. 8. 194, 88 8. Ct. 1477, 1482, 20
L. Ed. 2d 522 (1968). ‘*[C]onvictions for criminal
23
contempt are indistinguishable from ordinary criminal
convictions, for their impact on the individual defend-
ant is the same.’’ Jd., 88S. Ct. at 1482.
The Kentucky court made no finding that the evi-
dence of record established, beyond a reasonable doubt,
that Mr. Radigan ‘‘wilfully desregarded or disobeyed”’
its order to complete the appellant’s brief in Herald
within eight days—on or before November 11, 1983.
‘Significantly inadequate responses,’ ‘no accept-
able excuses, and ‘grossly inadequate explanations”’
by Mr. Radigan at the snow cause hearing do not trans-
late into ‘‘wilfull desregard or disobedience’ of the
court's order, particularly where Mr. Radigan filed a
timely motion for a ten-day extension and then tend-
ered the completed brief before the expiration of that
ten-day period.
Mr. Radigan's ‘behavior may have been, to some
degree, irritating to the court,’’ but ‘this conduct’’ did
not rise ‘‘the the level of wilful obstruction of the or-
derly administration of justice or flagrant disrespect
for the court so as to sustain a conviction for criminal
contempt.’’ Matter of Schwartz, D.C., 391 A. 2d 278,
282 (1978).
In any event, there was no evidence before the
court below to counter any of Mr. Radigan’s assertions
both in his motions for extension and at the show
cause hearings regarding his workload or his pro-
fessional judgments in these matters. The record at
bar contains no relevant evidence as to the crucial ele-
ment of criminal contempt, that is, ‘‘a wilfull disregard
or disobedience’’ of the court’s order.
\
24
On the basis of the evidence of record, no rational
trier of fact could find beyond a reasonable doubt that
Mr. Radigan’s conduct in the instant case was wilfull
disregard or disobedience of the court’s order. Harris
v. United States, 404 U. S. 1232, 92 8S. Ct. 10, 12, 30
L. Ed. 2d 25 (1971); see Vachon v. New Hampshire,
414 U.S. 478, 948. Ct. 664, 665, 38 L. Ed. 2d 666 (1974).
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979).
A person tried for contempt of court has a right
to an impartial judge, one who is not so involved in
the controversy that he would be ‘‘unlikely to maintain
that calm detachment necessary for fair adjudication.”’
Taylor v. Hayes, 418 U.S. 488, 94 8. Ct. 2697, 2704,
41 L. Ed. 2d 897 (1974).
In fact, ‘‘it is generally wise’’ for a judge ‘‘to ask
a fellow judge to take his place’’ in presiding over
a contempt proceeding. Mayberry v. Pennsylvania,
400 U. S. 455, 91 S. Ct. 499, 504, 27 L. Ed. 2d 532
(1971).
The failure of the Kentucky Supreme Court to
recuse itself from Mr. Radigan’s contempt proceedings
violated his federal constitutional right to a fair trial.
In its opinion and order, the Court below deter-
mined that William M. Radigan was in contempt of
court and imposed a fine of $100. However, ‘‘[i]n con-
sideration of this being the first conviction, payment of
the fine is suspended subject to further conduct’’. Jd.,
at 674. There was no mention of either the length of
the suspension, or the terms and conditions of the
suspension.
25
‘‘[I]t is now clear that the sentencing process, as
well as the trial itself, must satisfy the requirements
of the Due Process Clause.’’ Gardner y. Florida, 430
U.S. 349, 97S. Ct. .197, 1205, 51 L. Ed. 2d 393 (1977).
Yet, in the case at bar, Mr. Radigan faces an indefinite
suspension of the fine without any specified conditions.
These vague and ambiguous conditions violate federal
due process at the sentencing stage.
These conflicts justify the grant of certiorari to
review the judgment below.
II, The Decision Below Holding the Petitioner, An Ap-
pellate Public Defender, In Contempt of Court for
Failure to File a Client’s Brief by a Certain Date,
Even After He Had By Timely Motion Requested an
Extension to File the Brief Within the Requested
Period, Raises a Federal] Constitutional Question of
Importance to the Administration of Criminal Justice.
**A court must exercise ‘[t]he least possible power
adequate to the end proposed’.’’ Shillitani vy. United
States, 384 U.S. 364, 86S. Ct. 1531, 1536, 16 L, Ed. 2d
622 (1966).
“This doctrine . . . requires that the trial judge
first consider the feasibility of coercing testimony [for
example,}] through the imposition of civil contempt.’’
Id., 86 8. Ct. at 15386 n. 9. ‘The judge should resort
to criminal sanctions only after he determines, for good
reason, that the civil remedy would be inappropriate.”’
Id.
The doctrine of the exercise of the least judicial
power to the end proposed has equal application to
original actions, such as contempt proceedings, by an
appellate court.
26
In holding Mr. Radigan in contempt of court for
failure to file the Herald brief on October 11, 1983, the
Supreme Court of Kentucky sent a very definite mes-
sage to the members of the Bar—even though the court
below will not dismiss a criminal appeal, if the attor-
neys do not comply with the orders of the court to file
the brief on a certain date, then the attorneys wiil be
penalized by contempt proceedings. Such a result is
contrary to the purpose of a contempt action and easts
a chilling effect on effective representation by appellate
attorneys.
‘The power to punish contemptuous conduct is
essential to the preservation of the dignity and au-
thority of [this nation’s] courts.’ In Re Masinter,
La., 355 So, 2d 1288, 1290 (1978). ‘*This power, how-
ever, must be used with great care so as not to obstruct
the advancement of causes before the court.’’ Jd., at
1291.
Appellate courts should ‘hesitate to take discipli-
nary actions’? unless obviously warranted because the
courts must remain ‘‘sensitive to even the slightest
possibility of casting an inhibitory shadow upon the
ardor of those who practice before’? them. In Re
Bithoney, 486 F. 2d 319, 323 (1st Cir. 1973).
Courts should use the ability to punish through
contempt sparingly. ‘This is particularly true in con-
tempt case against lawyers, where there must be limited
interference with their right to properly represent
their clients.’’ Matter of Schwartz, D.C., 391 A. 2d
278, 281 (1978).
27
“In contempt cases against lawyers the evidence
must be carefully scrutinized in order to insure that
there is no undue interference with the attorney-client
relationship.”’ Jn Re Marshall, 423 F. 2d 1130 (5th
Cir. 1970), citing United States v. Schiffe., 351 F. 2d
91, 94 (6th Cir. 1965). See People v. Kurz, 35 Mich.
App. 643, 192 N. W. 2d 594, 598 (1972).
The facts of the case at bar reflect the possibility of
such a chilling effeet on zealous advocacy. At the
October 26, 1983 hearing, Mr. Radigan explained to the
court below that from October 3 until October 11 he
was working on the appellant’s brief in the case of
Greene Vv. Commonwealth which was pending before
the Court of Appeals on a “‘final extension.’’ If Mr.
Radigan had stopped working on the Greene case in an
attempt to prepare the pleadings in Herald, he felt
that he was in danger of having Greene dismissed.
However, the court below at the October 26th hearing
severely citicized Mr. Radigan’s professional and good
faith judgment of priorities. In effect, the court told
Mr. Radigan that he should have placed the Greene
case in possible jeopardy and made a possibly futile
attempt to complete Herald. In other words, Mr.
Radigan should have sacrificed Greene for Herald.
In Jn re McConnell, 370 U. S. 230, 82 S. Ct. 1288,
8 L. Ed. 2d 424 (1962), this Court held that while it is
necessary that a judge have the power to protect him-
self from actual obstruction in the courtroom, ‘‘it is
also essential to a fair administration of justice that
lawyers be able te make honest good-faith efforts to
present their client’s cases.”’
28
Appellate counsel, whether retained or appointed,
should not fear that requests for extensions to insure a
complete and adequate appellate presentation will be
translated into retaliatory contempt sanctions against
them.
This important constitutional question in the ad-
ministration of criminal justice justifies the grant of
certiorari to review the decision below.
CONCLUSION
For the foregoing reasons, a writ of certiorari
should issue to review the opinion and order of the
Supreme Court of Kentucky entered on November 2,
1983.
Respectfully submitted,
i a oe (nual I by end
J. VINCENT APRILE II
Attorney at Law
2520 Meadow Road
Louisville, Kentucky 40205
Counsel for Petitioner
CERTIFICATE OF SERVICE
I, J. Vincent Aprile II, counsel for petitioner, hereby
certify that forty (40) copies of the foregoing Petition for
Writ of Certiorari was mailed to the Office of the Clerk of
the United States Supreme Court, Washington, D.C. 20548,
and three (3) copies to John Scott, Clerk, Kentucky Su-
preme Court, Capitol Building, Frankfort, Kentucky 40601,
and three (3) copies to Hon, David L, Armstrong, Attorney
coneret, Capitol Building, Frankfort, Kentueky 40601, this
Zs™ day of March, 1984, by personally depositing same in
a United States mail box, first-class postage prepaid. I
further certify that all parties required to be served have
been served,
J, Viscent APRILE
Attorney at Law
2520 Meadow Road
Louisville, Kentucky 40205
Counsel for Petitioner
APPENDIX
la
SUPREME COURT OF KENTUCKY
83-SC-552-I
JosepH HERALD - - - - - - Appellant
v.
COMMONWEALTH OF KENTUCKY - - - Appellee
On Appeal from Campbell Circuit Court
Honorable Thomas F. Schnorr, Judge
83-CR-010
ORDER
Appellant’s motion for an extension of time is granted.
Appellant shall file his brief and perfect the appeal in the
above-styled action on or before October 11, 1983.
If appellant’s brief is not filed on or before October 11,
1983, counsel for the appellant shall appear before this court
on October 24, 1983, at 10:30 a.m., in order to show cause
why appellant’s counsel should not be held in contempt of
this court for failure to timely file the brief.
Stephenson, Vance, Wintersheimer and Aker, JJ., sit-
ting. All concur.
Enterep October 3, 1983.
(s) Robert F. Stephens
Chief Justice
2a
TO BE PUBLISHED
SUPREME COURT OF KENTUCKY
83-SC-866-I
In Re: Wituram M. Rapican, Attorney
OPINION and ORDER—Entered November 2, 1933
On October 3, 1983, by Order of the Supreme Court of
Kentucky, in case #83-SC-552-I, styled Joseph Herald v.
Commonwealth of Kentucky, this Court granted appellant’s
motion for an extension of time to October 11, 1983, to file
his brief and perfect the appeal.
In the same Order we further provided:
“If appellant’s brief is not filed on or before Octo-
ber 11, 1983, counsel for the appellant shall appear
before this court . . . in order to show cause why
appellant’s counsel should not be held in contempt of
this court for failure to timely file the brief.”
Appellant’s counsel, William M. Radigan, failed to com-
ply with this Order, and a hearing was held on October 26,
1983, at which time Mr. Radigan appeared and offered
explanation.
We find the following facts to be true:
The transcript of evidence was filed on June 10, 1983.
Thereafter on three occasicus on or about the day the brief
was due the appellant failed to file but instead filed an affi-
davit, notice and motion for another thirty days extension.
In each case the allegations of Mr. Radigan’s affidavits are
markedly similar. In each case in paragraph 5 they recite
that “This motion is made in good faith and not for the rea-
3a
b]
son of delay.” But for the most part the six paragraphs of
allegations in each affidavit parrot the preceding affidavit
chapter and verse except for small differences in ihe first
paragraph. In sum they indicate counsel is reasonably
busy, and nothing further.
The practice prevalent in criminal cases of counsel rou-
tinely seeking multiple extensions has become a serious
problem which this Court must consider in discharge of its
administrative responsibilities.
At the oral hearing conducted October 26, 1983, Mr.
Radigan advised this Court that he looked at the record in
this case for the first time on the last day of the third ex-
tension. In spite of a pending show cause order he inten-
tionally chose to work on other matters.
At that point Mr, Radigan determined that the record
could be read and the necessary briefing accomplished in
ten days. Once more he moved this Court on the last day
for filing his statement of appeal and brief, for yet another
extension—this time for ten days, the appropriate time in
the first place.
Mr. Radigan is an experienced attorney with the Office
of Public Advocacy. As such he is aware that should this
Court refuse to permit such extension of time, however
unreasonable, and dismiss appeals for failure to timely file
statement of appeal and brief, thus effectively barring his
client’s appeal through his own misconduct, the person thus
deprived of an appeal could seek further remedy in Federal
Court in habeas corpus proceedings.
As the Court charged with responsibility for the orderly
udministration of justice in this state we cannot tolerate
counsel deciding when it is timely and appropriate for a
brief to be filed, assuming power to act with impunity be-
cause of the problems in the administration of criminal
justice that would otherwise result from a dismissal of the
appeal.
4a
When Mr. Radigan appeared in response to the Order of
this Court to show cause, his response was significantly
inadequate. The brief which he has filed in the Joseph
Herald case shows that it is a relatively simple case with
few issues, all of a routine nature. As he has admitted and
demonstrated, it is a brief that should have taken ten days
to prepare, filed 133 days after the transcript of evidence
was filed.
We find no acceptable excuse for beginning work on this
case on October 11, 1983. We further find that Mr. Radigan
is in contempt of the Order of this Court entered Octo-
ber 3, 1983, requiring him to file his brief on or before
October 11, 1983 or appear to show cause why he should not
he held in contempt for failure to do so. We find his ex-
planation as to other work and projects occupying his time
during the period in question grossly inadequate. We find
no explanation for failing to notify us immediately if there
were considerations that would legitimately have prevented
his complying with our Order of October 3 when notified
thereof.
Being duly advised, it is the Order of this Court that
said William Radigan is found in contempt of Court and
fined $100 for his contempt.
In consideration of this being the first conviction, pay-
ment of the fine is suspended subject to further conduct.
Stephens, C.J., Gant, Leibson, Stephenson and Winter-
sheimer, JJ., concurring.
EntereD November 2, 1983.
(s) Robert F. Stephens
Chief Justice
5a
SUPREME COURT OF KENTUCKY
83-SC-866-I
In Re: Wituiam M. Ranican, Attorney
ORDER—Entered November 17, 1983
The motion to vacate the opinion and order of this
Court herein, entered November 2, 1983, and to rehear this
matter, is denied.
Entire Court sitting.
All concur.
ENTERED November 17, 1983.
(s) Robert F. Stephens
Chief Justice
6a
SUPREME COURT OF KENTUCKY
83-SC-866-I
In Re: Wituram M., Rapican, Attorney
In Supreme Court
ORDER DENYING MOTION TO RECONSIDER—
Entered December 22, 1983
William M. Radigan’s motion to reconsider is denied.
All coneur.
ENTERED December 22, 1983.
(s) Robert F. Stephens
Chief Justice
7a
AFFIDAVIT OF WILLIAM M. RADIGAN
Comes now the affiant, William M. Radigan, and having
been duly sworn, states as follows:
1. The affiant is the appointed appellate counsel in the
case of Herald v. Commonwealth, File No. 83-SC-552-MR.
2. The affiant is additionally the named individual in
the Opinion and Order entered by this Court in In Re: Wil-
liam M. Radigan, Attorney, File No. 83-SC-866-I.
3. From June 10, 1983, when the record of appeal in
Herald was filed with this Court,’ until October 31, 1983,
when the Herald brief was ordered to be filed, the affiant,
acting as assigned counsel, has filed a total of three hundred
and five (305) pages of appellate pleadings. These include:
(1) June 17, 1983: Meredith v. Commonwealth, File
No. 83-SC-122-MR (original brief, 4 issues, 29
pages) ;
(2) June 27, 1983: Trent v. Commonwealth, File No.
83-C A-470-MR (original brief, 1 issue, 19 pages) ;
(3) July 11, 1983: Crick v. Smith, United States Court
of Appeals for the Sixth Circuit (original brief,
2 issues, 36 pages) ;
(4) July 25, 1983: Conover v. Commonwealth, File No.
83-CA-594-MR (original brief, 1 issue, 7 pages) ;
(5) August 3, 1983: Moore v. Oldham, File No. 83-CA-
877-OA (Mandamus action, 8 pages) ;
(6) August 16, 1983: Meredith v. Commonwealth, File
No. 83-SC-122-MR (Reply brief, 4 issues, 5 pages) ;
1Even though the affiant was not assigned the Herald case until
July 5, 1983, this Court in the Opinion and Order in Radigan cal-
culated the time from June 10, 1983. The affiant will follow this
Court’s lead and review his caseload from that date.
8a
(7) August 18, 1983: Presley v. Rees, United States
District Court for the Eastern District of Ken-
tucky (petition for writ of habeas corpus, 1 issue,
27 pages) ;
(8) August 19, 1983: Harston v. Parke, United States
District Court for the Western District of Ken-
tucky (petition for writ of habeas corpus, 2 issues,
44 pages) ;
(9) September 7, 1988: Harris v. Commonwealth, File
No. 83-SC-409-MR (original brief, 3 issues, 32
pages) ;
(10) September 8, 1983: Moore v. Oldham, File No.
83-CA-1967-OA (mandamus action, 17 pages) ;
(11) September 28, 1983: Crick v. Smith, United States
Court of Appeals for the Sixth Cireuit (reply brief,
2 issues, 10 pages) ;
(12) October 13, 1983: Greene v. Commonwealth, File
No. 83-CA-1340-MR (original brief, 4 issues, 29
pages) ;
(13) October 17, 1983: Ringo v. Commonwealth (dis-
cretionary review, 7 pages) ;
(14) October 21, 1983: Herald v. Commonwealth, File
No. 83-SC-552-MR (original brief tendered, 3
issues, 25 pages) ;
(15) October 28, 1983: Buchanan v. Commonwealth,
File No, 83-SC-257-MR (reply brief, 3 issues, 5
pages) :
(16) October 31, 1983: Harris v. Commonwealth, File
No. 83-SC-409-MR (reply brief, 3 issues, 5 pages).
4. From June 10, 1983, through October 31, 1983, the
affiant has had five (5) oral arguments in the state and fed-
eral appellate courts. These include:
9a
(1) June 30, 1983: Lucey v. Seabolt, United States
Court of Appeals for the Sixth Circuit;
(2) July 5, 1983; Wine v. Co:nmonwealth, Court of
Appeals of Kentucky ;
(3) September 15, 1983: Riggsbee and Jackson v. Com-
monwealth, Supreme Court of Kentucky ;
(4) October 4, 1983: Gay v. Commonwealth, Court of
Appeals of Kentucky ;
(5) October 27, 1983: Hibbard v. Commonwealth, Su-
preme Court of Kentucky.
5. From June 10, 1983, through October 31, 1983, the
affiant has been involved in the preparation of a retrial in
the case of Commonwealth v. Brian Keith Moore, Jefferson
Circuit Court, a death penalty case. During this period,
the affiant has been involved in the following matters:
(1) June 15, 1983: investigation and trial preparation;
(2) June 17, 1983: investigation and trial preparation ;
(3) June 20, 1983: motion hour;
(4) June 22, 1983: investigation and trial preparation;
(5) June 27, 1983: motion hour;
(6) June 30, 1983: investigation and trial preparation ;
(7) July 5, 1983: investigation and trial preparation;
(8) July 11, 1983: motion hour;
(9) July 13, 1983: investigation and trial preparation ;
(10) July 18, 1983: investigation and trial preparation;
(11) July 20, 1983: investigation and trial preparation ;
(12) July 27, 1983: investigation and trial preparation ;
(13) August 22, 1983: motion hour;
(14) August 23, 1983: investigation and trial prepara-
tion;
(15) August 24, 1983: investigation and trial prepara-
tion;
10a
(16) August 25, 1983: investigation and trial prepara-
tion;
(17) August 26, 1983: evidentiary hearing;
(18) September 16, 1983: investigation and trial prep-
aration;
(19) September 30, 1983: evidentiary hearing;
(20) October 21, 1983: investigation and trial prepara-
tion.
6. From June 10, 1983, through October 12, 1983, the
affiant was actively involved as defense counsel in the case
of Commonwealth v. Everett Wayne Bishop, a retrial of a
robbery conviction in the Jefferson Cireuit Court. During
this period, the afliant was involved in the following
matters :
(1) June 20, 1983: motion hour;
(2) July 13, 1983: investigation and trial preparation ;
(3) July 20, 1983: investigation and trial preparation ;
(4) July 25, 1983: motion hour;
(5) August 3, 1983: investigation and trial prepara-
tion;
(6) October 12, 1983: guilty plea to lesser-included
offense for time served.
7. From June 10, 1983, through September 20, 1983,
the affiant was actively involved as defense counsel in the
case of Commonwealth v. Calvin Ray Smith, a retrial of
a manslaughter conviction in the Clay Circuit Court.
During this period, the affiant was involved in the fol-
lowing matters:
(1) August 22, 1983: investigation and trial prepara-
tion;
(2) September 13, 1983: deposition, investigation and
trial preparation;
lla
(3) September 15, 1983: trial preparation and prep-
aration of motions;
(4) September 16, 1983; trial preparation and prep-
aration of motions;
(5) September 19-20, 1983; motion hour, evidentiary
hearing, continuance until January 25, 1984,
8 During October of 1983, the affiant has been actively
involved as counsel for the plaintiffs in the case of Turner,
et al, v. Stumbo, a civil rights action in the United States
District Court for the Western District of Kentucky, on
remand from the Sixth Circuit. The affiant has been in-
volved in the following matters:
(1) October 6, 1983: investigation and preparation for
hearing;
(2) October 11, 1983: investigation and preparation
for hearing;
(3) October 18, 1988: investigation and preparation
for hearing;
(4) October 21, 1983: investigation and preparation
for hearing; preparation of pleadings;
(5) October 23, 1983: investigation and preparation
for hearings;
(6) October 24, 1983: preparation of pleadings;
(7) October 25, 1983: hearing, case set for trial on
merits on November 22-23, 1983,
(s) William M. Radigan
William M. Radigan, Affiant
Subscribed and sworn to before me by William M.
Radigan this 14th day of November, 1983,
(s) Joyee L. Gayles
Notary Public State at Large
My Commission Expires: September 20, 1987
12a
AFFIDAVIT OF MARK A. POSNANSKY
Comes the affiant, Mark A. Posnansky, and after first
being duly sworn, states as follows:
That I am the Manager of the Appellate Branch of the
Department of Public Advocacy in Frankfort, Kentucky,
and, that as such, one of my responsibilities is to assign
appeals to the attorneys in the Appellate Branch for
briefing.
That I assigned the case to Joseph Herald, an appeal
from the Campbell Circuit Court, to William M. Radigan.
The Department of Public Advocacy was notified by the
Kentucky Supreme Court that the record in said case had
been received on June 10, 1983. The Brief For Appellant,
therefore, was due to be filed on July 10, 1983,
That the appeal was not assigned to William M. Radigan
until July 5, 1983. The reasons that the assignment was
not made until that date are as follows:
1. For several years the Department of Publie Ad-
vocacy has been assigning some of its cases outside of the
central office under the “of counsel” plan. This is due to
the fact that the staff in the central office is not large
enough to absorb all of the appeals coming into the office.
A conscious and deliberate decision was made, at the time
these appeals started being assigned outside of the office,
to assign only cases with a sentence of under ten (10) years.
The reason for this decision was the belief that the experi-
ence and expertise of the central office attorneys dictated
that they should handle the more serious criminal cases.
2. Due to the increasing number of appeals coming
into the office, and due to the fact that the size of the central
office has remained stationary by order of the Executive
Branch of the Commonwealth of Kentucky, it has become
necessary to assign some cases outside of the office where
13a
the sentence is greater than ten (10) years. But the policy
has always remained that, if at all possible, sentences of
twenty (20) years or over should remain in the central
office. As Manager of this Branch, I have tried to adhere
to this policy.
3. The attorneys in the Appellate Branch of the De-
partment of Public Advocacy are currently carrying a case-
load of twenty-four (24) appeals per year. That is the
maximum allowable amount under the National Legal Aid
and Defended Association Standards. In order to equi-
tably assign these twenty-four (24) appeals per year, the
affiant assigns them at the rate of two (2) cases per month
to each attorney.
4. The Court should be aware that the number of new
appeals coming into the central office is increasing at a
record pace. During fiscal year 1983 (July 1, 1982 - June
30, 1983), the Department of Publie Advocacy received an
average of 43.7 new appeals per month. The figure for
the previous fiscal year was an average of approximately
29 new appeals per month,
5. During this same period of time, the number of
attorneys in the Appellate Branch of the central office
has not only failed to increase, it has decreased by one (1).
That attorney, Neal Walker, resigned in March, 1983. Due
to the hiring freeze which has continuously been in effect
in state government, the Department has not been able to
fill this position. This has resulted in an even greater
burden on the attorneys in the central office.
6. The Joseph Herald case was assigned to Mr. Radi-
gan on July 5, 1983. The record had been received by the
Supreme Court on June 10, 1983. But because the number
of appeals to be assigned at that time was so large, all of
the June assignments were made to attorneys in the central
office on June 1, 1983. On that date, affiant depleted his
l4a
entire month’s assignments. Affiant was therefore not in
a position to assign the Herald case when it came in.
7. Because the Joseph Herald appeal was an appeal
to the Kentucky Supreme Court, and because of this office’s
policy of assigning Supreme Court cases to “in-house” at-
torneys, it was necessary to hold the Herald case until
July. Affiant assigned the Joseph Herald appeal to Wil-
liam M. Radigan on July 5, 1988. That was the first work-
ing day for attorneys in the central office during the month
of July.
8 Affiant can state to this Court with certainty that
the assignment would have been made much earlier had
there been anyone in the central office to assign the case
to. But since the policy of this office is to assign two (2)
cases per month, and since the policy of this office is to
assign Supreme Court cases to “in-house” attorneys, and
since the June assignments had been exhausted by June 1,
affiant had no choice but to wait until July 5 to make this
assijyrment.
lurther affiant saith not.
(s) Mark A. Posnansky
Mark A. Posnansky
Assistant Public Advocate
Appellate Branch Manager
Subscribed and sworn to before me by Mark A. Pos-
nansky on this 14th day of November, 1983.
My Commission Expires: August 31, 1986
(s) Kathy D. Collins
Notary Public - State at Large
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.